the Sea is adioyning and in proprietie to bee esteemed accordingly taking their names of the Countries and Kingdomes adiacent or of their scituation as Mare Britannicum Mare Germanicum Mare Hibernicum and for scituation Mare Mediterraneum obserued by Cosmographers Historiographers and Mathematicians this is performed with the helpe of the Compasse counting of courses soundings colour of the grauell or sands and other wayes to designe Finitum ab ' iâ—finito By the Ciuile Law so farre as is expedient for the certaine reach and bounds of Seas properly apppertaining to any Prince or people wherein the Doctors of the Ciuile Law haue recorded excellent obseruations By the Law of Nation and Customes Baldus saith Vidimus de iure gentium in Mare esse Regna distincta sicut in terra Auda Ad legem 1. de ter diuisione In §. nullius in tratt de iâ—sula Bartolas doth in his opinion allow for princes and people at the sea-side Centum mitliaria which is one hundreth leagues of sea from their coast if they extend their protection so farre called by them Districtus maris territorium which is most plaine in those seas where the Isles of Garnesey and Iarnesey are so sensible and visible to the realme of England Visible Markes of Dominion or where there are such rockes or eminent marks as the Washes at the West seas thereof to which purpose Paulus a renowmed Ciuilian saieth That it is not needfull for him who would possesse himselfe of any land to go about and tread ouer the same but it is sufficient to enter in vpon any part thereof with a mind to possesse all the rest thereof euen to the due marches to be made apparant by the instruments of Geometricians And the like may be designed vpon the seas notwithstanding the soliditie of the one and the continuall flowing too and fro of the other This distinction of dominion hauing continued so many hundreth yeares needeth not to be corroborated with other proofe and arguments yet let vs note obiter That if the same were not distinguished as aforesaid Cases of ciuile Law or Admiraltie one borne vpon the seas should haue no countrie or nation to appeale vnto and a man dying intestate vpon the seas should minister occasion of question to know who should administer his goods and making of a Will how the same should be proued and executed by law without approbation of some Court or Iurisdiction whereas we find many Admiralls of the seas and their seuerall iurisdictions vpon the seas as deputies to their Princes or States who are alwaies absolute Commanders in their precincts according to the treaties and contracts made betweene Princes which are in the nature of lawes and inseperable of the said Princes right on the land concerning the possession of their Kingdomes or Common-weales as the fundamentall cause of their dominion wherein discontinuance of any part of their right cannot be pleaded against them The Kings of England neuerthelesse haue beene prouident and carefull herein for Historiographers haue recorded That King Edgar one of the Saxon Kings long before the Conquest made a suruay yearely of the foure great seas Mathew of Westm. and stiled himselfe lord thereof euen vntill Norway Ranulph Cestriensis and his progresse was most towards the North. It is also affirmed Anno 973. That the said King Edgar caused an inscription to be made vpon his Tombe for a monument calling himselfe Dominus quatuor Marea and as Papinian the Iurisconsult saieth In finalibus questionibus vete ra monumenta sequenda sunt Mare Britanicum But this for the dominion of the Kings of England ouer their seas Mare Hibernicum is not needfull For afterwards William Duke of Normandie after he had subduâ—d the realme of England by conquest Mare Germanicum caused himselfe not onely to be proclaimed King Mare Deucalidon but also that all the goods of the subiects were his and so caused the land to be diuided and yet was contented to change the title of a Monarchie by conquest into a Monarchie Royall and was also Lord of the said foure seas Io Bodinus de Resp. by the former assumpsit which had then continued 200 yeares and his progresse by sea was most Westward For when Princes or Kings do stile themselues by proclamation then the continuance thereof without opposition of other princes is holden and obserued as inuiolable and permanent Now King Henrie the second succeeding William the Conqueror Graftons Chronicle within one hundreth yeares did ioine Ireland to the crowne of England and did reduce Normandie and other places in France to the crowne taking as it were a new possession of the said seas and Henrie the first euerie yeare or within three yeares at the furthest crossed ouer into Normandie hauing taken Robert Duke of Normandie prisoner In the time of King Edward the third Chro. Malmesbuâ—e there was a disputation held with France concerning the fishing of the seas about Brittaine in which it was proued to belong to England Ioh. Hayward and thereupon Fraunce disclaimed therein By ancient records and Treaties c. as appeareth by the said King Edward the third his Proclamation yet extant Which arguments and contracts are as a law effectuall And here I must remember the singular care which the right reuerend father in God doctor Abbot now Archbishop of Canturburie A rare booke remoining with the Archbishop of Canturburie and Metropolitane of England hath had in procuring at his great charges for the good of our posteritie an excellent great Volume or Manuscript which was heretofore taken at Calice in France when the Spaniards tooke the same Anno 1596 and caried to Bruxels in the Low-countries whereof I haue had the perusall and made an Abstract of the Chapters of the same viz. The Treatie of Peace betweene Edward the third king of England and Iohn king of France for themselues and their eldest sonnes namely Edward the Blacke Prince of Wales and Charles Duke of Normandie Regent the French King his father being prisoner to the said King Edward which Treatie was made the eight of May 1360 in Britanie neere Chartres and confirmed at Calice whereupon sixteene Hostages were giuen to the King of England by the French King who was to come thither in person and to pay three millions of crownes for his ransome of two crownes to bee reckoned for an English noble called in King Henrie the eight his time Angell noble being some 750000 〈◊〉 sterling The ransome o' King Iohn of France The ship whereof vpon the one side did signifie the dominion of the seas whereunto old Chaucer the Poet did allude in Henrie the fifth his time This money was to be paied to weet six hundreth thousand crownes at Calice within 4 months after King Iohns arriuall there more foure hundreth thousand crownes within the yeare and so much yearely vntill the full paiment made
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-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
purpose as by the graunt appeareth This licence they in short time peruerted to the great disturbance of the ancient course of the Staple whereby the trade of the Realme greatly declined and the Kings Customes decreased so that from 160 thousand pounds yearely payed out of the Staple the Customes came short of 120 thousand pounds The Fraternitie of Saint Thomas of Becket These new Merchants terming themselues The fraternitie of Saint Thomas of Becket were by Act of Parlement and by direction vnder the Great Scale of England in the time of King Henrie the sixth prohibited from doing any act that might preiudice the Staple and so it continued vntill the two and twentieth yeare of King Henrie the seuenth and then there was another great complaint in Parlement against the said fraternitie for decaying of trade and a verie strict law made against them with especiall order that they should admit any of the Kings liege people into their socitie paying vnto them ten markes which vnder pretence of some priuiledges hath beene interrupted and especially by his Maiesties Proclamation in the fifteenth yeare of his Highnesse happie raigne by reason of the controuersie for the dressing and dying of cloth neuerthelesse in all their graunts exception is made That the Staplers should not be preiudiced which in the wisedome of a Parlement will be found most necessarie to be vnited againe to make a free trade vnder gouernment 8 The exportation of the materialls for cloth as woolls Fullers earth woolfells and woodashes is prohibited lately by his Maiesties Proclamation with good orders for the execution thereof according as heeretofore was done by the Correctors of the Staple for other commodities 9 Touching the warres of Christendome let vs obserue that King Edward the third had also great wars in his times with France and in Ireland and neuerthelesse he did receiue a verie great assistance by subsidies of fiftie shillings vpon euerie sacke of wooll exported for and during the time of sixe yeares which amounted to 1500 hundreth thousand pounds when one ounce of siluer was valued but at twentie pence which would now amount to foure millions and a halfe 10 And lastly the immoderate vse of forraine commodities was by the Maior and Constables of the Staple had in consideration for they had alwaies an especiall care to the inriching of the Kingdome because the prouident care of the King did put them in mind thereof insomuch that when the said King became forgetfull therein by reason of the warres and that the Kingdome wanted chaffer wares and necessarie prouisions the Parlement did absolutely deny to giue him any subsidie as appeareth by the Chronicle of Grafton in the one and fiftieth yeare of his raigne so that by the premisses things haue bin in some measure considered of when least disorder in trade appeared A Conclusion to the iudicious Reader THe triuiall vice of Enuie is said to be the mother of wickednesse and accounted to sit in an imâ—ginarie Theater Her Pallace is a dim and hollow vault wherin she waxeth pale and wan as hauing the consumption of the liuer looking a squint as borne vnder Saturne neuer resting as though shee were an arme of Ixâ—ns wheele engendred and hatched by the vgly Megara of Hell that feeds and crams her gorge with Dragons and fomes out againe deadly poyson This vâ—ce hath sent forth triple headed Cerberus vnder the shadow of Zoilus Momus and Mastix Three enuious Satyies to performe her intended tragedie but Zoylus remembring that his railing Commentaries presented by him to Ptolome king of Aegypt and his presumption to bee better learned than Homer did worke his ouerthrow goeth by with silence and shaking his head seemeth to be discontented and vnder hand he doth instigate Momus and Mastix to follow their enuious humors wherupon Momus with his carping eyes dimmed with passion hauing cursorily read ouer this booke taketh vpon him to be a great Pollitician or Statist and findeth fault that many things therein contained which he termeth Mysteries should be published and made knowne especially such as may concerne Princes in their reuenues or secrets of their mints Vnto him therefore I frame this answere confessing and auoiding that true it is That the ancient Monarchies Empires and Common-weales held the knowledge of their reuenues in such reuerence and secret that none but the officers which had the managing thereof were made priuie of them as being sacred things not fitting that the people should take notice thereof which was truely obserued in the Romane Empire and Common-weales of the Grecians But as times produce varietie and the maners of men do change breeding corruption of lawes and customes so was it found that by this secrecie officers were both emboldned and enabled to deceiue the Princes thereby and the people would pretend ignorance to giâ—e vnto them their dues whereupon the Senators of Rome by mature deliberation did ordaine that from that time forward the reuenues of their treasure and the dependances thereupon should be published and made knowne not only vnto the people but vnto strangers also which the Emperor Iustinian caused to beobserued and other Emperors succeeding him as appeareth by the Code and other Bookes which the French Kings haue imitated euer since willing and commaunding that these things should be knowne of euerie one yea euen of the meere strangers of other countries so that this obiection is of small moment especially this booke being moderate in the handling thereof Now Mastix riding a false gallop on a hackney horse being full fraighted of conceits commeth to towne and maketh two exceptions to the methode and contents of the booke first he will not allow the termes of Art by diuiding of the same according to the three essentiall parts of Trafficke next he will not haue Merchants secrets laied open or their trades divulged To the first concerning the being essence or existance of things he will make no difference betweene naturall things and things artificiall and so there is but two essentiall parts of Materia forma albeit that some Philosophers haue established three beginnings of naturall things Matter Forme and Depriuation The Matter hath no other office or function but the changing from one Forme into another Depriuation giuing an inclination thereunto for Depriuation is an imperfection so conioyned to the Matter that without her if she were seperated nothing would be ingendered and therefore in Heauen there is no Depriuation and consequently no generation ne corruption The Forme therefore giueth perfection to the thing and being also and without her the Matter is more imperfect than the eye is without the facultie of seeing or the eares without hearing But in artificialls the being hath her parts as Trafficke hath three namely Commodities Money and Exchange so other things may consist of more being or simples wherein the termes of Art are not excluded neither can they auoid Mastix his enuie To the second the whole contents of this Booke manifesteth to all judicious Merchants how necessarie the knowledge is of the matter therein contained to maintaine Equitie and Iustice by the Law of Nations and that there is no particular secret of any Merchants trade reuealed to the preiudice of any man or nation in so much that they are much pleased with it as being desirous to aduance the good and to banish the euill obseruing that vertue maketh a stranger grow naturall in a strange countrie and the vicious becommeth a meere stranger in his owne natiue soile Let vertue therefore enioy her freedome and possesse her priuiledges by the right of Law and all the people shal flourish with equitie Iustice shall maintaine Peace Peace shall procure Securitie Securitie shall nourish Wealth and Wealth Felicitie No man is to be dismayed at his small tallent or to grudge at anothers greater prosperitie for without doubt Nature hath by her secret motion denied none some perfect qualitie to supplie that want which in himselfe breeds discontent or mislike for euen as the fish hauing no eares hath a most cleere sight so though want of dignitie be a disgrace to some though want of coyne discontent diuers and though lacke of wealth impaires the credit of many yet nature hath supplied that outward ornament with such an internall reward as a loyall and louing heart notwithstanding many hard measures will with constancie spend all his time for the good of the common-wealth being thereunto imployed This worke thus at length happily concluded and commended to the kind acceptation of all gentle and well disposed minds is not compiled to please the vaine appetite of some men according to their nice opinion but is referred to the judiciall and affable judgements of this age to whom I shall during the remainder of my daies alwaies be readie to supplie any thing which in the next impression may be desired not doubting but they will measure it by the iust desert and censure thereof as their owne kind natures haue euer beene accustomed Soli Deo gloria FINIS
Billes of Debt or any other commoditie which is ordinarily sold payable at some dayes of payment either 4 6 or more monethes and hauing agreed vpon the price of the said commoditie or before hee maketh the seller acquainted what payment or satisfaction hee will giue him in Billes of such and such persons amounting to such a summe either little more or lesse than the commoditie doth amount vnto or to take in commoditie so much as the said Billes doe containe or doe amount vnto and if there bee any remainder due for the commoditie more than the Billes doe amount the same to bee payed in readie money or vpon his owne Bill payable at such a time as they agree betweene them which often commeth to be a great summe Heereupon all such Bills as are of knowne persons are soone accepted of and of the vnknowne persons either himselfe that is the Seller or the Broker will inquire of their sufficiencie and then likewise accept of their Bills in paiment and hauing taken their Bills which are made payable to the Bearer as we haue said the receiuer of these Bills goeth vnto the parties and demandeth of them whether they are contented to pay him those Bills at the time specified therein according to the manner of merchants for commodities which if it be within one moneth after it is accounted to be verie good payment The Debtor maketh answere that he will pay his Bill to the bearer thereof accordingly for if this man will not ride out as they say the time of the payment of the Bills he may go to another man and buy other commodities therewith as if it were with readie money the time onely considered nay more if he will haue readie money for these Bills Selling of Bill Obligatorie he may sell them to other merchants that are moneyed men and abating for the interest for the time and commonly one moneth ouer according to the rate as they can agree and as money is plentifull they shall haue money at all times to imploy in commodities or to deliuer by exchange or to pay debts withall or to carrie home in specie or for any other purpose at their pleasure which is commodious for young merchants hauing small stockes as also for all men vpon all occasions for it is properly as money paied by assignation whereby verie great matters are compassed in the trade of merchandize the commodities are sooner vented in all places General benefits by setting ouer of Bils of Debt the Custome and Impositions of Princes do increase the poore and mechanicall people are set on worke men are better assured in their payments the counterfeiting of Bills and differences are preuented the more commodities there are sold the lesse readie money is transported and life is infused into trafficke and trade for the generall good And herein we see and may obserue That things which be indeed and things which are not indeed but taken to be indeed may produce all one effect and euerie man is enabled with his owne meanes and credit to augment commerce This laudable custome as I said is not practised in England yet sometimes a Merchant Stranger will accept of Bills of Debt in payment for commodities sold with aduantage But then the Bill is made new againe and in the Merchant Strangers name and this is not without some daunger to him that buyeth the commoditie or merchandise for another mans Bill as Factors may doe for their Masters for I haue obserued by good experience A Law Case about the setting ouer of Bills that a Factor in London hauing sold for his Master a Merchant of Antuerpe some commodities to an English Merchant to the value of seuen hundred pounds and taken the Merchants Bills payable at six moneths and six moneths for it his Master of Antuerpe did appoint him to buy Bayes â—or these Bills of another Merchant which he did performe and had the value of 700 ll deliuered vnto him in Bayes accordingly and the Bills were to be altered in the other Merchants name for his Bayes Shortly after it fell out that the English Merchant became insoluent But before it was publickely knowne the Factor brought the Bills altered according to the agreement in the Baye Merchants name who did refuse to accept of them and said the Factor should pay him The Bills were tendered with a Scriuener according to their agreement but still were refused The time of payment being expired the Bay Merchant did arrest the said Factor the matter was tried before the Lord chiefe Iustice of the Kings Bench by a Nisi prius in London by a partie Iurie of English men and Strangers The verdict was found for the Bay Merchant and the Factor did paie the money and had no remedie against his Master The reason was deliuered by the Iudge That the Common Law in this case requireth a Release or Acquittance for the payment of the Bayes to be made to the Factor otherwise he was still bound by the Law to answere for the said Bayes To establish this Custome in England This custome might with great facilitie neuerthelesse be established in England and would be verie beneficiall to the King and the Common-wealth ingenerall for albeit that the strict Rules of the Law demaundeth a sealing and deliuerie of Deedes and that the Bill cannon conueniently be made payable to the bearer of it or be altered in another mans name as abouesaid neither can it be recouered by a Letter of Attorney which in England is alwaies reuocable before the fact Neuerthelesse if there were a Register kept of the passing and transferring of these Bills from man to man and by an indorsement thereof also vpon the Bill it might be done with ease and the bearer of it should be acknowledged thereby to be the lawfull Attorney in Law and by these meanes the vndecent Plea of Non est factum would be cut off And to preuent fraudulent dealing if any Bills should be lost notice might be giuen instantly to the Register which at Lixborne and Roan is called a Prothonotarie by meanes whereof many questionable parcells or payments are made apparant Office of Prothonotarie at Lixborne and Roan and the Bills for the most part doe remaine in the office at the disposition of the last Assigne or Assignes which is the cause also that most vsually Bills are made for all things bought and sold betweene parties and parties whereby many payments are made by Rescounter Rescounter by Biâ—ls for payment as if it were in banke hereafter to be declared for Merchants do meet and in a manner iumpe together in their said payments And hereby also may the difficultie for the taking of an Acquittance as aforesaid be remoued by entring an acknowledgement of satisfaction before the said Register at the time of the transferring or registring thereof I haue taken paines to haue this to be established here but hetherto things are not rightly vnderstood as is to be wished
same with the charges vpon commodities to the price whereat the said commodities were bought as well in his natiue countrie as in other countries where hee doth trafficke and trade In Russia Denmarke and Sweathen Rigorous dealing for Customes the Custome and Ordinances is if a Merchant doe not declare all his commodities which he importeth or exporteth but concealeth some part of them all the commodities of that kind are forfeited to the Prince and hee shall find but small fauour to redeeme them In Spaine and other Dominions of the King of Spaine the commodities concealed are onely forfeited vnlesse they bee prohibited and vnlawfull goods In England Scotland and Ireland is the like and onely the goods concealed are forfeited and may be had againe vpon reasonable composition for the Statute Law giueth authoritie to the Officer who maketh the seizure that vpon licence sued forth to compound hee may doe it safely for his part which is the one moitie and for the other moity which is the Kings Merchants are graciously dealt wichall by the Iudges or Barons of the Kings Exchequer Abuse of fauourable dealings or others thereunto authorised Insomuch that it hath happened that some Merchants relying vpon this fauourable dealing haue aduentured to expose their commodities vnto the forfeiture thereof being commodities which pay much Custome and Imposition as Cambrickes Lawnes Tabacco Cutcheneale Venice gold Threed and other things because they were in a manner assured to make composition vnder the summe which they were to pay for Custome and Imposition In France and Germany is the like for concealed commodities which are not declared in the Custome-house and Iewels and precious Stones and Pearles are freed of Custome And so was it in England vntill of late yeares since the Customes were taken to farme and yet they pay but three pro cent of the value of their appraisement Strict orders for Customes at London c. to bee rated by the Officers of the Custome-house at London But if any Merchant or Ieweller bring ouer any Iewells or precious Stones and Pearles he is to declare them to the Officers or Waiters of the place where hee landeth otherwise they will bee seized by water or land as forfeited to the King wherein more strict dealing hath beene vsed of late since the King hath letten to farme his moitie of the Seizures So that first of all the Custome of concealed goods must be payed before any composition bee made next the composition being made then may the Informer bee agreed withall And no commodities can bee deliuered vpon securitie to the owner as formerly by the Law was accustomed to be done but they must remaine in some sufficient custodie vntill the matter bee tried by Law or compounded by agreement But prohibited commodities as Allome and other things by Letters Patents and Proclamation the possession may be had vpon securitie to bee giuen to answere the value thereof according to the appraisement made of them And these commodities if the Master of the ship doe not declare them vpon his entrie made in the Custome-house vpon his oath are also subiect to the forfeiture although they come consigned vnto a Merchant or Factor vnawares by another Merchant that knew not that such commodities were prohibited to bee imported The like is it for a Merchant shipping out vnlawfull wares but heerein hee may haue intelligence by the Customer before hee doe lay them vpon the water to bee shipped Againe if a Merchant carrie money by water downe to Grauesend with an intention to bestow the same in Bayes at Sandwich or in other commodities at Canturburie hee is first to declare the same in the Searchers Office or else the money is lost and three times the value vpon information For no money of Gold or Siluer or any forrein Coyne or Plate brought into the Kingdome can be transported only for Passengers expences some foure or fiue pounds may be carried out But for commodities brought in which haue payed Custome the same may bee shipped out againe by Cocket without paying any more Custome and Imposition so it bee done vpon good Certificate that it is the same commoditie and that the propertie thereof is not altered and this must be done within sixe moneths after their importation All Merchants ships being laden Permitted to breake bulke at Tilburie-hope haue alwaies time out of mind beene permitted to breake bulke below or at Tilburie-Hope and to pay no Custome but for the goods they brought vp or landed in England and not for the goods which they did transport in the said ship or in any other vessell or ship which priuiledge and certainetie of Merchants Custome ought to be seriously obserued better than it hath beene of late And of this and other obseruations Merchants and Factors are to giue notice to their friends and Masters to the end they do not incur any danger To enter goods vpon sight which to auoid in some sort is effected by entring the goods vpon sight of the Customers view by opening of them In Barbarie and other places where the Customes are paied in kind or Species if any part bee concealed and not entered that onely will be forfeited and yet the losse is greater because they will make choice of the best as for example Suppose a Merchant doth enter diuers sorts of Linnen-cloth and concealeth some pieces the Officers will take both the tenth piece for the Custome and all the concealed pieces of the best and finest sorts to your exceeding great losse In the Low-countries and Germanie as also in most places of Italie and Turkie you shall onely forfeit the goods concealed and bee permitted to compound for them as you can agree wherein the circumstances in some places will be considered and the manner how the error grew or whether it were done with a set purpose There are also in diuerse places allowances made as in England vpon Wines in regarde of lecage of tenne or fifteene vpon the hundreth or else all the Buts and Pipes are to be filled vp Allowances made vpon Customes and Impositions and so to pay accordingly wherein the time of the voyage foule weather and other accidents are to be considered to make your composition thereafter Vpon Clothes to be shipped out Allowance vpon Clothes there is allowance made of the tenth Cloth for a wrapper which payeth no Custome and so of all other woollen Commodities which pay after the rate as three Northeren Kersies for a Cloth foure Deuonshire Kersies two single Dozens one double Dozen six Cardinals Pin-whites Statutes Stockbridges Straites and Tauistockes foure Cornish Dozens Pennystones vnfriezed Island Dozens and Northeren Plaines for one Cloth two Bridgewaters Cornish and Deuonshire double Dozens Florentines Northren Dozens single and pennystones for a Cloth to be vnderstood for a short Cloth coloured or white of twentie and foure yards long waighing 60 ll vntill 64 ll whereof English Custome was a Noble and the Merchant Straunger
inhabite in Virginia where they shall haue houses and lands for themselues and their heires for euer and their worke shall be taken from them and they shal be duely paied and that a certaine number onely shall haue this priuiledge for certaine yeares and none others to be admitted albeit the number of people doe increase wherby they may be sure of a certain beneficial liuing And no doubt they wil aduenture that little they haue to inrich their means and estate and persuade their wiues and seruants to go with them who may succeed them vpon other good conditions The like is to be done with Taylors Bakers Brewers and other handicraftes-men and so conceauing a common-wealth within themselues wil resolue and encourage many that are of some meanes to accompanie others of smaller means whereby the base minded will be brought to be also painefull and industrious in time and the charge of the vndertakers will be lesse and more commodious to prouide the voyages with facilitie The like was to be put in practise by the Hollanders in the Island of saint Thomas vnder the line but the extreamitie of the heate of that Climate did bring a disorder and the attempt was giuen ouer It is more like to be established in other places for albeit the warres in Europe will diminish the people yet most countries are populous Politicians although they are much mistaken in the number of parishes of seuerall kingdomes yet are they not in the number of the persons or inhabitants France containing by late estimation about 27400 parishes What people in France in numbers c. esteemed in 44 hundreth thousand families of fiue persons to a familie where in England six persons are accounted to be in a familie is 22 millions of persons England containing 9725 parishes 52 shires and 26 cities is esteemed in 28 hundreth thousand families of six persons which maketh 16 millions and 800 thousand persons Scotland containing aboue 4000 parishes is esteemed to haue about 1500 thousand persons or families of six persons is nine millions of persons Ireland containing 5500 parishes was esteemed not to containe the two third parts of Scotland which is now much increased The prouince of Flanders one of the 17 Netherlands esteemed to containe 140 thousand families of fiue persons is 700 thousand persons which is more than the kingdome of Denmarke being ten times more spacious Now omitting to speake of other countries Too populous is dangerous in Monarchies let vs obserue that in all popular gouernments be it an Aristocracie or Democracie the meanes to make countries populous is thought reasonable which in Monarchies is held to be dangerous The concourse of people causeth the greater consumpsion of all things and the reuenues are great by Impositions and it giueth life to trafficke and commerce The Plantation of Vlster one of the foure Prouinces of Ireland is now verie great and the meanes to set the people on worke are to be taken in hand which may be done by a Corporation of English and Irish Merchants there inhabiting and English Merchants in England to vent the superfluities of the commodities of that kingdome and to increase the manufacture of many needfull commodities to bee made there the realme affording stuffe and materialls thereunto plentiously And here I remember a good obseruation heretofore made touching the kingdome of Ireland Why the same was not brought vnto perfect obedience to their soueraigne these 400 yearâ—s but vnder our most gratious king Iames which is attributed to the mistaking of the place of the plantation of the first aduenturers that were deceiued in their choice Fit places for plantation to be considered of for they sate downe and erected their castles and habitations in the plaines and open countries where they found most fruitfull and profitable lands turned the Irish into the woods and mountaines which as they were proper places for Outlawes and Theeues so were they their naturall castles and fortifications thither they draue their preys and stealths the lurked there waited to do euill and mischiefe for these places they kept vnknowne by making the waies and entries thereunto impassible there â—hey kept their cattle liuing by the milke of the cow without husbandrie or tillage there they increased and multiplyed vnto infinit numbers by promiscuous generation among themselues there they made their assemblies and conspiracies without discouerie but they discouered the weaknesse of the English dwelling in the open plaines and thereupon made their fallies and retraits with great aduantage Whereas on the other side if the English had builded their castles and townes in those places of fastnes had driuen the Irish into the plaines and open countries where they might haue had an eye and obseruation vpon them the Irish had beene easily kept in order and in short time reclaimed from their wildnesse and would haue vsed tillage and by dwelling together in towneships learned mechanicall Arts and Sciences This discourse may seeme strange to the Law of Merchants but when Merchants vndertake Plantations as we see they do no man will hold the same to be impertinent The discouerie of the Southerne countries called Terra Australis And for as much as diuers Mathematicians heretofore haue according to those discoueries made their maps and vpon good probabilitie affirmed and set downe Terra Australis incognita whereof discouerie hath beene made in the yeare 1615 by Ferdinand de Quir a Spanish Captaine let vs consider that many other countries may also be found out albeit this containeth a fifth part of the world for as he saieth to Philip the third late king of Spaine the length thereof is as great as all Europe and Asia the lesse vnto the sea of Bachu Persia and all the Isles as well of the Ocean as of the Mediterranean sea taking England and Island into this account seated within Zona Torrida and a great thereof reacheth vnto the Equinoctiall Circle eleuated vnto them to 90 degrees aboue the Horizon and in some places a little lesse There they liue without Kings or Lawes and know no neighbourhood either of Turkes or Moores and according to this maner of life although they want Yron and Guns they haue not need of any thing But they abound with many excellent commodities whereof the Spaniards will in time make vse especially if they be more assured of Gold there to be found as in part they are of Siluer and Pearles for these are the three most pretious darlings that lie and are cherrished in the bosome of Nature To say nothing of Spices and Drugs whereof they abound with many other commodities by the said Captaine declared And here we may not omit to remember That it is not enough to discouer countries and leaue them without plantation or at the least neglect the vse of them if Merchants do giue ouer their enterprises But it is the part of Princes to see plantations made True causes to make plantations for two maine reasons
is condemned and forbidden by the holy Scripture the Imperiall Lawes Ciuile and Canon Lawes ancient Fathers Decretals learned Philosophers eloquent Orators Historiographers and Law-giuers The consideration whereof caused me some yeares since to write a small * Saint George for England Treatise of the Operation of Vsurie in Kingdomes States and Common-weales shewing although allegorically the effects of it with the six members of euerie Common-wealth which are Clergie-men Magistrates Noblemen Merchants Artificers and Husband-men by ouerthrowing the harmonicall gouernement of them by too much inriching some and by oppressing and impouerishing some others bringing the instrument out of tune when as euerie member of the same should liue contented in his vocation and execute his charge according to his profession whereby all things should be gouerned in the best and most assured manner that can be deuised and as it were seeking a kind of certaintie in vncertainties which is termed Policie For all worldly and transitorie things being mutable maketh the world properly to consist of discord and dissention a verie vncertaine ground to build vpon and yet a certaine equalitie and concord is required in euerie well gouerned Common-wealth the Prince and gouernour hauing the disposing both of the one and the other Equalitie concerning trafficke and commerce betwixt his dominions and other countreys and Concord amongst the members of a Common-wealth when euerie member thereof doth liue contentedly and proportionably in his vocation Both these are confounded by intollerable Vsurie which is described vnder the inuented historie of Saint George The Historie of S. George whereby our Sauiour Christ was prefigured deliuering the Virgin which did signifie the sinfull soules of Christians from the Dragon or Deuils power So by the person of Saint George is vnderstood the Kings authoritie armed with the right armour of Christians who with the sword of the Spirit of Gods most holy Word explained and corroborated with seuerall other Lawes signified by the Pybald horse whereon hee was mounted did destroy the Dragon Vsurie hauing two wings to aduance himselfe being Vsura palliata and Vsura explicata and his inconstant taile Cambium the Virgin or Kings daughter being treasure and moneys to be deuoured by his meanes and forraine nations The allegorie whereof requireth a due consideration and would in plaine termes be distastfull to diuers This Dragon bringeth inequalitie in a Common-wealth by the meanes of his tayle wherein lieth his greatest strength making the expences thereof to surmount the reuenues In the curing of which disease those would be thought to be verie foolish Physicians that by their medicine should cast the Bodie Politike of a Common-wealth into a more dangerous sickenesse Wherefore as the wounds of this Dragon Vsurie are inueterated so must hee bee dealt withall by degrees and lenitie admitting him for the time as most States and Gouerments doe as a necessarie euill in regard of trafficke and trade A necessarie euill albeit that many Vsurers are like vnto Iewes who thinke it lawfull for them to take any forfeiture bee it neuer so vnequall and vniust any morgage any pawne nothing is amisse for them they are not afraid of that wenne which wee call Anatokismos that is Vsurie vpon Vsurie no they dread not to take tenne vpon the hundreth if it were for a weeke The pretence of the Iewes is because we are strangers as if wee were all Canaanites or some of the seuen Nations which were as well to bee opprest by Vsurie as to bee rooted out by Iosuah but these men cannot alleage any thing in their defence but greedie lucre * dtridot CHAP. XI Of Vsurie Politike and Moneys deliuered at Interest IN the precedent Chapter you may perceiue what Lawes and prohibitions are made against Vsurie and neuerthelesse the practise of it is most vsuall in many Kingdomes and Common-weales and the Lawes are also made accordingly for this sinne is rather in the conscience than in the act and therefore there is no penaltie imposed vpon it by Gods Law True it is that the Statute Law of England doth tollerate tenne vpon the hundreth and so doe some other Lawes twelue and more But the intent and not the rigour thereof is to bee weighed for the cleering of iustice and the preamble of the said Statute Law in the narratiue part saith That whereas Vsurie is against all Diuine and Humane Lawes yet tenne vpon the hundreth is tollerated to be taken for the yeare which by way of forfeiture in the nature of a punishment may be sued for by the Law but if there bee neuer so little taken aboue the said rate of tenne vpon the hundreth for the yeare the principle is lost and treble damages The word Vsurie was not so odious in times past as it is now taken by the abuse of Vsurie Politike Threefold Vsurie no more than it is in Vsurie Naturall and Vsurie Spirituall and my meaning is not to maintaine Vsurie Politike in all respects contrarie to the opinion of Diuines that haue the Word of God for their warrant but the ouer-precisenes therin may breed a great inconuenience to the Common-wealth The Law of God did not punish theft by death but onely by restitution and as Cato saith Cato de Rustica When a theefe was punished to pay the double of that he had taken the Vsurer was alwayes condemned to pay foure times the value The Lawes therefore are made according to the alterations of times nature condition and disposition of the people and simply to say that any thing taken aboue the principall is Vsurie is wonderfull strict vnlesse you take the word Vsurie to bee Biting because the same is neuer hurtfull but where it biteth and the matter of conscience consisteth in the not getting of your debtor and not in the taking of much or little interest The Vsurie is greater therefore to take but two or three vpon the hundreth of one that maketh no benefit of the money than to take tenne or twelue vpon the hundreth of a Merchant who maketh a greater gaine thereby according to the holy Scripture Pecunia non potest parere alienas negociari miserias fratrem non mor debis non munera super innocentem which was the cause that by the Lawes of the Romanes he that took Vsurie of the poore was more punished than he that tooke nay than he that did steale from the rich for no man is bound by law or otherwise admonished to lend money vnto those that haue no need of it and there is on the other side a conscience to be vsed if a man haue gotten well by another mans money and doth pay the same againe without any interest or profit Also in case of interest taken it is considerable That if I doe lend money to him that hath neede and can afterwards prooue that for want of that money I haue sustained great losse or if my debtor doe breake day with me when I looke to haue it at the time appointed and
haue spent time labour and no small charges in hope that hereafter it may do good to the publicke Pawne houses if some Diuine be moued to further it The first is according to the manner of Amsterdam to which end the substance of the petition of honest and religious men his maiesties subiects is as followeth First that authoritie be giuen to A. B. to erect Pawne-houses in all conuenient places of the realmes of England Ireland and the dominions of Wales for and during the terme of one and twentie yeres vpon these conditions That all person and persons shall and may haue at all conuenient times moneys vpon pawnes of or vpon all moueable goods chattels and leases or any thing which shall be agreed vpon after the rate of ten vpon the hundreth by the yeare That the vndertakers may be authorised or licenced to take for the attendance labour and paines recompence of Officers and Seruants wages house-rent and all other charges incident thereunto as followeth For registring and keeping of all pawnes that do amount to fiftie pounds or more one farthing for euerie pound by the moneth For all pawnes that do amount to ten pounds or more vntill fiftie pounds for euerie pound one halfe pennie by the moneth For all pawnes that do not amount to ten pound for euerie pound one pennie by the moneth For euerie bill giuen for pawnes vnder ten pounds one pennie and being of ten pounds or aboue whatsoeuer it commeth vnto but two pence with such clauses conditions and cautions as shall be requisite for the securitie of the said vndertakers and agreeable with the laws of the realm of England paying vnto the Kings maiestie a reasonable summe of money yearely c. The said allowances are inferiour to the moderation of the Emperor Iustinian his Lawes and will be found verie reasonable considering that by the tolleration of Vsurie politicke men can deliuer their moneys in verie great summes at ten in the hundreth freely and without such trouble CHAP. XIII Of Mons pietatis or Banke of Charitie THe second meane to suppresse the biting vsurie of extortion vpon the common people is by prouiding a course that they may haue moneys vpon pawne without paying any interest or vsurie for the loane of it according to the manner of Bridges in Flanders which is more pleasing but it is not so vniuersall as the Pawne houses are where great summes are to be had to accommodate Merchants and all men to preuent the generall abuse albeit it cannot be denyed but that the extortion vpon the meaner sort of people is more haynous and detestable which was the cause that by the Lawes of the Romans he that tooke vsurie of the poore was more punished than he that did steale from the rich as is before declared In Italie there are Montes pietatis that is to say Mounts or Bankes of Charitie places where great summes of money are by legacies giuen for reliefe of the poore to borrow vpon pawnes and to pay onely after three or foure in the hundreth at the most to maintaine the officers and to beare the charges of such an erected Mount for euer But the manner of Bridges as aforesaid may be thought more reasonable paying the officers out of the contributions which by their means may be much increased according to the orders which are hereafter declared Moneys to be giuen to suppresse vsurie for euerie man is willing to giue for the suppression of intollerable and abhominable vsurie The rich that are charitably disposed will giue because vsurie politicke should not be biting the meaner sort of people will be contributarie because of the commodiousnes of it for who will not giue six pence or twelue pence euerie quarter of the yeare when he may borrow a reasonable summe of money without paying any vse for it for one yere or a longer time according to occasions I am sure of most mens inclinations by an attempt made of the practise hereof some yeares since for after the names taken of aboue 1500 persons that were willing to contribute yearely and some Diuines and others that would lend freely 50 ll 100 ll or more for some yeares and some 500 ll I made an alphabetical register of them which was deliuered into the hands of a great personage who as it seemeth was not worthie of the honour thereof but to my remembrance it amounted to some 2000 ll for moneys giuen and to be lent and aboue six hundreth pounds yearely during the liues of the benefactors so that no man hath cause to doubt of the collection of a great stocke for so godly a worke if authoritie were had when this was done vpon the onely hope and surmise thereof to the effecting whereof I will be willing still to doe my best endeauour Now the orders are as followeth Orders to be obserued for the gouernment of the Mount of Charitie consisting of two houses within the citie of London and the suburbes thereof and one house at Westminster where all men may borrow moneys in small summes without paying any vse or loane for the same vpon pawne to be deliuered for caution or securitie of the said moneys according to the manner of Bridges in Flanders and other countries 1 IMprimis That all men of what qualitie or condition soeuer they be being destitute of money shall haue money at all conuenient times without paying any vse or loane for the same but deliuering onely a pawne of any moueable thing so it be not aboue fortie shillings at any one time vntill a competent stock be raised for the maintenance of the said Mount of Charitie for euer 2 Item Whereas the said stocke is raised and to be increased by meanes of charitable and conscionable persons which either do freely lend moneys without taking interest for the same or do freely giue in money and yearely contributions according to their vertuous dâ—sposition which moneys may in progresse of time amount to a notable summe the Treasurer generall therefore shall be a man sufficient and of honest behauiour carefull to appoint sworne honest men vpon sureties to collect the said moneys and for keeping of the pawnes with their Clarkes and other attendants and the Surueior of accounts shall be a man diligent and skilfull in accounts all for the better incouragement of the said charitable giuers and free lenders for the aduancement of this charitable worke 3 Item Whereas the like House called Saint George was heretofore erected at Genoua in Italie by noble Knights bound in honour to see the people relieued from oppression biting vsurie and extortion which by all vertuous Knights is at all times approued and commended There shall be kept one paire of tables in euerie house containing the names of such honourable persons and vertuous Knights ' as shall be yearely contributaries by quarterly paiments during their naturall liues or lend any summe of money gratis for a time together with the names of such well disposed persons as by
they shall speake truth to that which shall be demanded of them 3 That they shall not require without iust cause any time of prolongation 4 That they haue not nor wil attempt to corrupt witnesses 6 The sixth time vpon the contestation and interlocutorie sentence you must obserue nine things 1 That the witnesses be presented in presence of the partie against whom they are produced 2 That they bee freemen and honest and not hired nor corrupted 3 That they bee sworne and the producent payeth his charges 4 You may inquire of the partie that doth produce the witnesses as also of the witnesses by certaine articles what may appertaine to the cause in regard of their admittance for to bee sworne because their deposition is the ground of the matter 5 That the plaintife hauing had three seuerall times to produce his witnesses shall not haue any other time to examine any more vnlesse he do sweare that he knoweth not what the former witnesses haue deposed and the Iudge do assent thereunto 6 If the witnesses haue declared any thing obscurely they may declare the same more plainely if the Iudge do desire the same at the intreatie of the partie according as he shall direct 7 After publication of the witnesses depositions there may not any other witnesses be deposed vpon the said interrogatories or any matter touching the same 8 That the witnesses be examined of the time of the place and of the case it selfe whether they haue seene or heard the same what they beleeue or know thereof or of the report they haue heard 9 That to auoid charges there be not too many examined A Maximo of the Law of Arragon The seuenth time is when all must bee alledged which may any manner of waies make for the state of the cause and if it fall out that two witnesses tell one tale as it were verbatim their euidence is voide and the eight time the Iudge proceedeth to a definitiue sentence and the ninth time which must be done within tenne daies the partie may appeale and therupon for the tenth time the pleyto or suite with all the records goeth out of that Iudges court to a higher court where it may not depend aboue a limited time The obseruations doe minister an occasion that many controuersies are ended without law for the parties are not sure to obserue these times and the defendants which seeke delaies are not contented with so short a time of pleading the complainant also may know whether it be safe for him to take his oath as aforesaid that hee is in conscience persuaded of his right To abridge the multiplicities of suits and moreuer paying a fine for wrong molestation abridged with them heretofore the multiplicities of suits Omitting now to speake of other courts of equitie and calling law and Equitie to bee the Common Law so much commended aboue the Ciuile Law by the said M r. Fortescue sometimes Lord chiefe Iustice of the Kings Bench in the time of King Henrie the sixth who hath obserued fiue points wherein the same consisteth let vs obserue many more to extoll the excellencie of the said Common Law as followeth summarily 1 First because of the antiquitie thereof Excellencie of the Common Law of England for that in all the times that the Realme was inhabited by fiue seuerall nations the same was still ruled by the said Customes that it is now gouerned withall which if they had not beene good some of the Kings of these seuerall nations mooued either with justice or with reason and affection would haue changed or abolished the same especially the Romanes who iudged all the world 2 Secondly for that the Kings of England at their Coronation doe take a solemne oath to cause all the Customes of the Realme to be faithfully obserued according to the former institution 3 For that the said ancient Customs or Maximes therof are inexpugnable and doe stand of their owne authoritie as Principles which need no reason to confirme their authoritie as the Lawes of Solon Draco Carondas Licurgus Numa Pompilius and the Law of twelue Tables c. 4 Because all differences and controuersies which happen betweene the King and his subiects are tried and determined by the Law and if it be done in Parlement or by the Iudges it is still according to the Law 5 Because the King personally giueth not any iudgement especially when himselfe is a partie seeing it is against the Law of Nature to be both judge and partie 6 For that notwithstanding the decease of the Kings of England from time to time the Iudges of the Courts of Record that is to say of the Chancerie of the Kings Bench of the Common Pleas which doe sit as Iudges by the Kings Letters Pattents doe remaine authorised and their power ended not immediately with the King howbeit the succeeding Kings doe confirme them in their offices whereby all seditions are preuented during the inter Regnum 7 For that with indifferencie without regard of persons it commandeth as well the Nobilitie and other persons of dignitie by way of vtlagare or outlaw as the meanest subiects 8 For exercising a power ouer the Iudges which are not to judge of the Law but by the Law and therefore is the word Iudicium properly attributed to their determinations euen as the word Decretum is vnderstood of the ordinances or sentences of the Magistrates following equitie as it were without Law For there is the like proportion betweene the Law and the execution thereof called Legis Actio as there is betweene Equitie and the dutie of a Magistrate called Iudicis Officium 9 For that the officers thereof are authorised according to the qualitie and due execution of it by a proportionable distribution namely The Iudges for terme of life and officers subalterne changing from yeare to yeare to the end the administration of justice may bee more indifferent 10 For the diuersitie of the triall thereof in seuerall Courts according to Law and Equitie is the cause of an agreeing and most necessarie discord as it were Concordi Discordia whereby the bodie of justice is supported by striuing as the stones vpholding a vault as Cato saith 11 For that the Iudges in criminall causes doe change from time to time their circuits and inferiour Iudges of the Court doe execute the place as well as superiour Iudges whereby partialitie is preuented 12 For that the Law tendeth most carefully for the good and preseruation of life and goods of euerie good and honest man seeing that euen in criminall causes it hath prouided as much as may stand with justice a helpe and fauour permitting the Iudges to order the pleading of offendors and to instruct them to auoid mispleading and giuing them leaue to except against the Iurors which they dislike 13 For that it doth forbid the sale of offices thereby intending due administration of justice for where offices are sold as it were by the Great there justice is commonly solde by
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
dignitie and to bee cherished for by them Countreys are discouered Familiaritie betweene Nations is procured and politike Experience is attained Whereupon I haue beene mooued by long obseruation to put the worthines of the Customarie Law of Merchants in plaine and compendious writing by vndoubted principles familiar examples and demonstratiue reasons without affectation of curious words more than the grauitie of the Theame in some places did require I haue intituled the Booke according to the ancient name of Lex Mercatoria and not Ius Mercatorum because it is a Customary Law approued by the authoritie of all Kingdomes and Common-weales and not a Law established by the Soueraigntie of any Prince either in the first foundation or by continuance of time And beginning with Time Number VVeight and Measure I doe descend to the three Essentiall Parts of Trafficke diuided into three parts accordingly by comparing them to the Bodie Soule and Spirit of Commerce namely Commodities Money and Exchange for money by Billes of Exchanges The first as the Bodie vpheld the World by Commutation and Bartring of Commodities vntill money was deuised to bee coyned The second as the Soule in the Bodie did infuse life to Trafficke by the meanes of Equalitie and Equitie preuenting aduantage betweene Buyers and Sellers The third as the Spirit and Facultie of the Soule being seated euerie where corroborateth the Vitall Spirit of Trafficke directing and controlling by iust proportions the prices and values of Commodities and Moneys For euen as Merchants are the Instrumentall Cause of Trade euen so is the Exchange for Moneys the Efficient Cause with vs in the course of Trafficke and become Predominant or ouerruling the price of Commodities and Moneys as aforesaid This is manifested by three Paradoxes alluding to the said three Essentiall Parts of Commerce which for a Corrollarie I haue added in the latter end of this Booke with such other worthy obseruations as in the first Chapter are declared And euen as the roundnesse of the Globe of the World is composed of the Earth and Waters So is the Bodie of Lex Mercatoria made and framed of the Merchants Customes and the Sea-Lawes which are involued together as the Seas and Earth In the description whereof I have vsed to make repetition of the Materiall points according as occasion did minister vnto me for to make application thereof for the better vnderstanding of the Iudicious Reader which is the maine Scope that all Writers are to regard and care for The meanes whereby the differences and controuersies happening betweene Merchants in the course of Trade are ended is also declared which most of all require Breuitie and Expedition and had need of a peremptorie proceeding as was inuented for the Common Law of the Realme of England the due commendation whereof is added heereunto shewing also how of the same there might bee made an Art or Science and what obseruation of other Lawes are concurring with ours both in the strictnesse of Law and the lenitie of Equitie most consonant with the Law-Merchant the knowledge whereof is of so great consequence that without it all Temporall Lawes are not compleat but imperfect The Scope of all therefore is That the Rule of Equalitie and Equitie may take place betweene Vs and other Nations which Velut Ariadnae caecaregens filo vestigia non modo nos errare non sinit fed etiam efficit vt aberrantes in rectam viam deducamur as hath beene mentioned in our last Treatise of the maintenance of free trade lately published Concluding gentle Reader vpon all the premisses handled as I hope substantially I commend and submit the same to the louing entertainement of the profound and discerning iudgement of the discreet wise and experienced wishing that like matter set downe by the Penne of Apollo they may sound sweetly in your apprehention and giue to your conceit most harmonious Musicke Pleasure and Delight London the 25 of Nouember 1622. Thine to vse alwaies readie GERARD MALYNES A TABLE OF THE CONtents of the first part of Lex Mercatoria or the ancient Law-Merchant concerning Commodities compared to the Bodie of Trafficke Chapter Pag. 1 AN induction to Lex Mercatoria or the Law-Merchant and the antiquitie thereof 1 2 An obseruation concerning Time 8 3 Of Number and the mysteries thereof 17 4 Of Weights and Measures vsed in all places of the world with other obseruations 19 5 Of the three essentiall parts of trafficke namely Commodities Money and Exchange of money by bills of Exchanges 58 6 A geometricall description of the world especially of Europe measured by millions of acres of ground vpon the map 66 7 Of the Commodities of all Countreyes whereby commerce is maintained 70 8 Of Commutation or bartring of commodities 83 9 Of ordinarie buyings and sellings of Commodities 91 10 Of Suretiship and Merchants Promises 93 11 Of the reuolution of buying and selling of Commodities in the course of Trafficke 95 12 Of the transferring and setting ouer of Billes obligatorie betweene Merchants and others 98 13 Of the Nature of Billes obligatorie beyond the Seas and in England 101 14 Of Letters of Credit and Blankes signed 104 15 Of Letters of Atturney or Procurations and Transports and Conueyances 106 16 Of Factors and seruants and Commissions giuen vnto them 111 17 Of the beginning of Sea Lawes 119 18 Of the manner of proceeding in Sea-faring Causes 121 19 Of buying and selling of Commodities by Contracts 122 20 Of Bankes and Bankers 131 21 Of the Fraighting of Ships Charterparties and Billes of Lading 134 22 Of the Master of the Ship his power and dutie of the Master to the Merchant 142 23 Of the dueties and priuiledges of Marinors 144 24 Of the office of Assurances and the ancient custome of the same 146 25 Of Pollicies of Assurances and the substance of them and of contributions 150 26 Of the manner of Contribution or Aueridges 157 27 Of the particulars to be obserued in Assurances 159 28 Of the manner of proceeding for Assurances in case of losses 161 29 Of Shipwrecke and things found vpon the seas 167 30 Of partners and ships voyages 169 31 Of moneys taken vpon bottomarie by the Master of a Ship called Foenus Nauticum 171 32 Of Shipping and Nauigation 173 33 An Abridgement of the imperiall Sea Lawes of the Haunce Townes made in the yeare 1614. 175 34 Of Nauigation and Communitie of the seas 182 35 Of the distinct Dominions of the seas 185 36 Of Customes Subsidies and Impositions paied vpon commodities 193 37 Of Merchants Wagers Stipulations or Conuentions 197 38 Of Merchants markes set vpon commodities 199 39 Of the buying and selling of commodities by Brokers and by the Candle 201 40 Of buying of Commodities by Condition termed Capiticus and selling things vpon casualties 203 41 Of diuiding of commodities by Lots 205 42 Of Assotiations Monopolies Engrossings and Forestallings 210 43 Of Merchants Oppignorations 218 44 Of the proceedings vsed against Bankrupts 221 45 Of Manufactures 229 46 Of
occasions and was not altogether made in the first foundation as the Lawes whereby the Common-weales of Israel whose Lawes were vniformely made by Moses from God or those of Crete Cybaris Sparta Carthage by Minos Charondas Lycurgus and Phalcas Neuerthelesse many Emperours and Kings haue alwaies referred the ending of differences which happen betweene Merchants to be done decided according to the Law-Merchant That is to say according to the Custome of Merchants who by their trauels found the diuersitie of weights and measures and the goodnesse and vse of commodities pleasing to all nations whereby the superfluities of them were vented amongst them Vt quod vspiam nascitur boni id apud omnes affluat This Law of Merchants or Lex Mercatoria in the fundamentals of it Definition of the Law-merchant Deâ—epub is nothing else but as Cicero defineth true and iust Law Recta Ratio naturae congruens diffusa in omnes Constans sempiterna True Law is right Reason agreeable to Nature in all points diffused and spread in all Nations consisting perpetually without abrogation Ius gentium howbeit some doe attribute this definition vnto ius gentium or the Law of Nations which consisteth of Customes Manners and prescriptions of all Nations being of like conditions to all people and obserued by them as a law But the matter being truely examined we shall find it more naturally and properly belongeth to the Law-merchant Euery man knoweth that for Manners and Prescriptions there is great diuersitie amongst all Nations but for the Customes obserued in the course of trafficke and commerce there is that sympathy concordance and agreement which may bee said to bee of like condition to all people diffused and spread by right reason and instinct of nature consisting perpetually And these Customes are properly those obseruations which Merchants maintaine betweene themselues and if these bee separated from the Law of Nations The remainder of the said Law will consist but of few points Prerogatiues of Princes by the Law of Nations Princes and Potentates by their prerogatiues respecting the law of Nations doe permit amongst themselues a free trauelling by land through their seuerall Kingdomes Territories and Dominions vnlesse they bee open enemies They hold likewise a communitie of the seas for Nauigation as also a distinct dominion of the seas adioyning to the territories and iurisdiction of their countries they take Custome Subsidies and all manner of impositions vpon the commodities imported and exported out of their Harbours Hauens and Ports as also duties for the fishing in their Seas Streames and Dominions of all which the Merchant is to take especiall notice to auoid danger in the trafficke and trade with their subiects for non-payment of the same which they claime iure gentium Are not the Sea Lawes establisted to decide the controuersies and differences happening betweene Merchants and Marriners And is it not conuenient for Merchants to know them Considering that Merchants maintaine the Fisher-men and by way of Trade cause the Sea and Land Commodities to bee dispersed euerie where So that the said prerogaties doe also appertaine to the Law-merchant as properly inherent vnto commerce and the obseruation of Merchants being of like condition to all people and nations Concerning manners and prescriptions Manners and prescriptions of the law of Nations wherein the differences is to be noted from the Law-Merchant the same consist in the erecting of Offices creating of Officers and making of Lawes which of themselues make a separation betweene Customes Also the giuing or bestowing of honours and dignities the granting of priuiledges and the doing of any thing which concerneth the Honor Body and goods of any man whereunto all things touching man haue a reference and doe meerely belong to the preheminence of Princes in their places of Soueraigntie And herein let vs obserue the difference betweene Lawes and Customes according to the description of the said worthy author Cicero Differeâ—ce betweene Lawes and Customes A Custome saith hee taketh hir strength by little and little in progresse of Time by a generall Consent or of the most part But the Law commeth forth in a moment and taketh her strength from him that hath power to command Customes doe take place gently but the Law commandeth with a power suddenly True it is that the Law may abolish Customes but Customes cannot derogate from the Law because Magistrates will see them executed at all times Customes haue their strength by sufferance but the Law commandeth by absolute authoritie of a Prince And yet Customes are of no lesse power than a Law and the difference consisteth most in the manner Lex est cui omnes homines decet obedire propter multa varia maxime quia omnis lex est inuentio quaedam donum Dei. All men ought to obey the Lawes which are many and diuers and chiefly because all Lawes are as is it were an inuention and a gift of God So much yea more may bee said of the Custome of Merchants because of their continuance and Antiquitie as aforesaid And for that the said customarie Law of Merchants hath a peculiar prerogatiue aboue all other Customes The Prerogatiue of Merchants Customes aboue all other Customes for that the same is obserued in all places whereas the Customes of one place doe not extend in other places and sometimes they are obserued and sometimes they are neglected But the Customes of Merchants concerning trafficke and commerce are permanent and constant and when they are not truely obserued in some places by some errour or misprision Non est consuetudo sed vsurpatio For such Customes loose their names and are called Vsurpation which is the cause that many times Customes are established for Lawes by him or them that haue power to make Lawes And Customes are the best Interpreters of the Lawes Customes are the best interpreters of Lawes either for suppressing of vice or establishiug of Vertue So that whosoeuer alleadgeth a Custome in his defence is to prooue and maintaine the same if it bee honest Now wee must not vnderstand this of any euill Custome because they make no presidents and are to bee supressed by Lawes Likewise a Custome well obserued is to bee preferred before a Law not obserued A Gradation concerning Lawes and Customes And this Gradation ought to be maintained and seâ—iously obserued concerning Lawes and Customes That euen as the Wills Contracts or Testaments of particular men cannot derogate or vndoe the Ordinances of the Magistrates and as the order of the Magistrates cannot abolish ancient good Customes nor Customes cannot abridge the generall Lawes of an absolute Prince no more can the Law of Princes alter or change the Law of God and Nature Bartolus Baldus Iustinian Vlpian Paule the Iurisconsulse Papinian Benvenuto Straccha Petrus Santerne Ioannes Inder Balduinus de Vbald Rodericus Suarez Iason Angell Andrias Tiraquell Alciatus Budeus Alexander Perusius Pomponius Incolaus Boertius Azo Celsus Rusinus Mansilius
Vieâ—ius generalis Dei in Terris D. C. L. V. V. IIIIII which is the number of a man speaking of Antichrist in the dayes of the Emperour Domitian the tenth persecutor of the Christians and the twelfth Romane Emperour when the Latine tongue was most frequent although he did write in Greeke which number was 666 by significant letters Now as one is no Number but vnitas so there is but one God one World one Sunne one King of Bees Vnitas and leader amongst Cattell Number Two is the first ofspring of vnitie not composed but in societie vnited called the Number of Iustice wherin many things are obseruable The Two Tables of the Law Duclitas Two Cherubins vpon the Arke of Moses Two Testaments Two great Lights Two Natures in Christ Two Solstices Two Equinoctialls Two Poles and many other things The Number Three is called Holy and Tria sunt omnia Trias as the Philosopher faith which diuers also doe acknowledge to be of great efficacie in all things whereof Pithagoras Virgil Pliniâ— Aristosle Trimegistus and others haue written copiously the glory of all belonging to the three persons in the God-head with the vertues of Faith Hope and Charitie 4. Quiuarias In the figure of Foure many things are to bee noted as the Foure Elements the Foure originall Windes the Foure Seasons of the yeare c. So of the Number Fiue being the Medium of Tenne which in Number figuratiue climeth no higher without doubling in Letters or Figures hauing this propertie Dâ—narius that take nine from tenne there remaineth one take eight there remaineth two take seuen there remaineth three and sixe remaineth foure All which remainders added together make againe the Number Tenne whereof the Number Fiue is equidistant To speake of the fiue Senses fiue fingers and toes fiue sorts of creatures and other dependences would be tedious The Number Six is not void of the like applications but no number more vsed in holy Scripture as perfect and compleate than the Number Seuen Numerus magâ—a persectionis virtutis called Sacred because God rested the Seuenth day and did blesse and hallow the same It was ordaâ—ned in the Law that amongst the people of God euery Seuenth yeare should be held holy wherein the land should rest from labour and that libertie should be giuen vnto seruants and bee called a yeare of Rest vnto the Lord. And by the like reasons it was institâ—ted Sabbathecall yeares that the Israelites should number vnto them seuen Sabbaths of yeares containing 49 yeares and immediatly in the beginning of the 50 yeare following Iubilee yeare the trumpet of a Iubilee should be blowne the 10 day of the Seuenth Month. The sacrifices for the most part were offered by Seuens the great feasts of Gods people lasted Seuen daies and they did eat Seuen dayes vnleauenned bread at the Passeouer Seuen weekes were reckoned betweene the Passeouer and Pentecost and most of the feasts were in the seuenth Moneth In a figure also did the Arke of Noah which was a figure of Christ rest vpon the Mountaines of Ararat in the seuenth Moneth likewise it is said Wisedome hath builded her house with seuen Pillars vnderstanding the Church with the gifts of the Spirit which are figured by Seuen burning Lamps and by Seuen grauen Candlestickes The Stone mentioned by Zachary which is Christ hath Seuen watching eyes of God and the Number Seuen so often vsed in the Reuelation of Iohn To say nothing of the Seuen Planets running their courses and amongst the fixed Starres the Seuen called Pleiades and other Seuen Hyades and the two Polar Images called Vrsa Maior vrsa Minor containe each seuen Starres and many other obseruations of the said Number Seuen may be noted Some obseruations there are of the Numbers Eight and Nine And for the Number Tenne notice is taken of the Tenne Commandements Tenne Curtaines in the Temple of Salomon Tenne Strings vpon the Harpe Tenne Musicall Instruments and diuers other particulars The Number Twelue hath very great vse and concordance in the Scripture the 12 Tribes of Israel whereof 12 Stones were placed in the Riuer Iordan and so many precious Stones vpon the brest-plate of Aaron so many Loaues offered so many Altars builded and so many Lions vnder the brazen Seas so many fountaines in Helim so many men sent into the land of Promise hereunto allude the Twelue Apostles Twelue thousand Nations marked Twelue Stars to crowne the Queene of Heauen Twelue Baskets of bread gathered Twelue Angels and so many gates and stones of the heauenly Ierusalem omitting to speak of the Twelue Signes of the Zodiake and many other particularities touching the coherence of this number Let vs note Indians account of Time and Number that some Indians and Heathen people at Guiana haue no diuision or account of Times and Number they onely reckon by the moones as one two three foure or fiue moneths or by dayes in like manner their numbers they reckon thus one two three and so to ten then ten and one ten and two and so forth And to shew their meaning more certainely they will demonstrate the same by their fingers still making signes as they speake and when they will reckon twentie they will hold downe both their hands to their feet shewing all their fingers and toes and as the number is greater so will they double the signe And when they appoint or promise any thing at a limited time they will deliuer a little bundle of stickes equall to the number of daies or moones that they appoint and will themselues keepe another bundle of the like number and to obserue their appointed time they will euerie day or moone take away a sticke and when they haue taken away all then they know that the time of their appointment is come and will accordingly performe their promise which may be a president to many Christians Thus much may suffice to haue noted concerning Number and the coherence thereof with Time Now whereas God by his diuine prouidence hath made all things subiect to Number Weight and Measure let vs in the next place intreat of weight and measures CHAP. IIII. Of WEIGHTS and MEASVRES vsed in all places of the world with other obseruations HAuing intreated of Time and Number The manner of Weights wherein and wherewith God doth gouerne all things according to his determinate will and pleasure Now in order let vs handle the description of Weights and Measures whereby all wordly things are disposed of which is most necessarie to be knowne to giue euerie man his owne and to buy and sell by according to which all contracts and agreements betweene man and man in the course of Trafficke and Trade for all commodities are made to distinguish Meum and Tuum by the Law and otherwise according to common consent of all Nations All WEIGHTS are diuided into three sorts FIrst by the great number that is to say by Hundreths
a third are all equall The knowledge of the premisses is so naturally and visibly engraffed in the mind of man as no doubt can be admitted neuerthelesse there are men so intoxicated in their iudgements that being once possessed of an imaginarie conceit they will neuer be remoued as he was who asked of his friend What he should do with a heape of stones and trash to be rid of it and was answered That he should digge a hole in the ground and burie them and when the other demanded of him what he should do with the earth he should dig out he told him he should make the hole so much bigger to put them in both and he could neuer be recalled from this conceit euen in naturall and substantiall things to be felt seene and handled insomuch that experience sheweth that digging an hole one shall hardly put in the same earth againe without cramming and labour much lesse the other The Pithagorians doctrine lately reuiued by Copernicus touching the scituation and mouing of the bodies Coelestiall denying the stabilitie of the earth may in some measure be admitted argumentandi gratia for they set forth some Astronomicall demonstration Copernicus his opinion of the motion of the earth albeit imaginarie and declare some reasons agreeable to experience namely that the Orbe of the fixed Starres is of all other the most highest and farthest distant and comprehendeth the other Spheres of wandring Starres And of the straying bodies called Planets the old Phylosophers thought it a good ground in Reason that the nighest to the Center should swiftliest moue because the Circle was least and thereby the sooner ouerpassed and the farther distant the more slowly and vpon this consideration because of the swift course of the Moone they did conclude that the whole Globe of Elements was inclosed within the Moones Sphere together with the earth as the Center of the same to be by this great Orbe together with the other Planets about the Sunne turned making by his reuolution one yeare and whatsoeuer seemeth to vs to proceed by the mouing of the Sunne the same to proceed indeed by the reuolution of the earth the Sunne still remaining fixed and immoueable in the middest Aristotle of the stabilitie of the earth But Aristotle his reasons are generally approued to proue the earths stabilitie in the middle or lower part of the world because of grauitie and leuitie the earth being of all other Elements most heauie and all ponderous things are caried vnto it striuing as it were to sway downe euen to the inmost part thereof with many other reasons made disputable by some because the Planets and Starres are farre aboue vs. But to denie the Principle of Exchange and Money as aforesaid may be refuted and proued to be so plaine an error as we see the hand or Index of a dyall to be the thing actiue which sheweth the houre and the letters are things passiue and immoueable in the action and so are Commodities in the course of trafficke where Exchange is vsed Right merchants are taken to be wise in their profession for their owne good and benefit of the common-wealth for of the six members of all the gouernments of monarchies and common-weales they are the principal instruments to increase or decrease the wealth therof as may appear by the description of the following royall banket of Great Britaine The royal banket of Great Britaine The king of Great Britaine considering that all common-weales are furnished with Diuine seruice Armes Laws Riches Arts and Sustenance that the managing of these six things requireth six maner of persons namely Clergie-men Noble-men Magistrates Merchants Artificers Husband-men which iointly are the members of all common-weales was graciously disposed to inuite them all vnto a royall banket where after many pleasing discourses concerning hunting and hauing proued by many examples that the most renowned princes delighting in that royall sport haue alwaies beene the best wariers his Maiestie was pleased that euerie member of his common-wealth as aforesaid should in one onely word expresse the propertie of his profession or calling whereupon the Clergie-men did say we instruct the Noblemen we fight the Magistrates we defend the Merchants we inrich the Artificers we furnish and the Husband-men we feed The king answering vsed these or the like speeches We do verie well approue your declarations in this briefe manner recommending euerie one of you to discharge your duetie accordingly Comparison and propertie of the bodie to the head so betweene the king and his subiects with a remembrance that we as your head must make the bodie of the common-wealth compleate for the office of a king towards his subiects doth very well agree with the office of the head and all the members thereof For from the head being the seate of judgement proceedeth the care and prouidence of guiding and preuenting all euill that may come to the bodie or any part thereof the head cares for the bodie so doth the king for his people and euen as all discourses and directions flow from the head and the execution of them belongeth to the members euerie one according to their office so is it betweene a wise prince and his people And as the head by true iudgement may imploy the members in their seuerall offices being thereunto sufficient or being defectiue may cut them off rather than to suffer infection to the rest euen so is it betwixt the king and his people for as there is alwaies hope of curing any diseased member by direction of the head so long as it is whole and by the contrarie if it be troubled all members are partakers of that trouble so is it betweene the king and his subiects who is therefore called Parens patriae Parens patriâ— who like a father of the great familie of the common-wealth doth studie for the welfare thereof The Lord Chancellor making a general answere did acknowledge his maiestie to be the right and supreame head without which the bodie was to be esteemed as a dead trunke for said he the royal Scepter of a Monarchie guided with good and wholesome lawes doth far exceed all other gouernments Aristocratia Democratia which properly are called Aristocracies Democracies Aristocracie is the gouernment of the lesse number of people of a common-wealth in soueraingtie and Democracie being contrarie vnto it is the greater number of people gouerning Monarchie the best gouernment Whereas a monarchie is a common-wealth where one sole prince hath the absolute gouernment heere the peace vnitie concord and tranquilitie of subiects consisteth by meanes of one head by whose power common-weales are fortified vertue thereby being vnited and more corroborated than if it were dispersed into many parts which giue occasion of strifes turmoiles and controuersies by the diuided powers and emulation of greatnesse when as one person imitating nature doth gouerne as the head all the parts and members of the bodie for the generall safegard
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
within the citie of London being the kings Chamber After this follow the particular Letters for the deliuerie of seuerall countries and townes as Caours Carsin Monstreull Calice Rochell Turaine Poitiers Poitou Xantes Xantogne Dagonois Perigot and diuers others besides many Letters concerning the French Kings libertie and his Hostages and of the homage to be made by the Earles and Barons to the King of England who remaineth with the title of Soueraignetie and Domayne besides many other memorable things so that all matters concerning the seas and land were established for those seas and King Eâ—ward tooke sixe pence a tunne for fishing ships King Henrie the fifth who did conquere all France and had the possession of Mare Britanicum lost nothing of his right no more did Henrie the sixth and King Henrie the seuenth as may appeare by their Proclamations Treaties Chro Hollâ—ngshed and Contracts not onely with the French but with the Archdukes of Burgondie as by Guicchardins Chronicle Chr. Froiszart Guiccâ—arâ—in and the said Treatise or Historicall description of the Low-countries appeareth And as Docter d ee in his booke of Nauigation affirmeth King Henrie the seuenth in consideration of the fishing trade properly belonging vnto England in his seas and dominions had resolued to settle a trade thereupon which he preferred aboue all voyages for in those daies there was no fishing trade established in the Low-countries By original antiquitie And it is not yet one hundreth yeares compleate that one Violet Stephens and other discontented Fishmongers departed the realme of England and went into Holland to the towne of Enckhusen where they procured the inhabitants to fish for them in his Maiesties of great Brittaine seas streames and dominions which inhabitants vpon the decease of the said Englishmen Fishmongers tooke the whole trade to themselues dispersing the same into many other townes whereby the same is admirably increased Queene Marie being maried with King Philip the second of Spaine vnder whom all the seuenteene Low Prouinces were vnited granted a lease vnto the said King for the fishing of his subiects in the North parts of Ireland for one and twentie yeares for a certaine fine and paying one thousand pound yearely into the Treasurie of Ireland and Edward Fitton knight then Treasurer And the Companie of the old Haunce in primo of the said Queene Marie had also libertie to sish within the said seas vpon certaine conditions as appeareth in the Chappell of the Rolls of the Chancerie And for England Northwards licences were giuen at Scarborough Castle To this distinction of dominion of the Seas Inuention of the Porteullis I call to memorie the proceedings of that victorious King Henry the eight who during the time that Calice was vnder the Crowne of England as it hath beene full 211 yeares vsed the inuention of the signe of the Portcullis signifying the power of locking vp of the narrow Seas betweene Douer and Calice which was thought conuenient to bee vsed vpon the coyne made for the East-Indies at the beginning of that trade being peeces of the value of eight Royalls of Spaine whereof there was coyned in the Tower of London for a triall in Ianuarie 1600 some six thousand pounds which could not be made currant there because the Spanish peeces of eight Royalls had beene before that time counterfeited by other nations which made the East-Indians to doubt of our coyne although without cause This noble King Henrie hauing procured the Emperor Charles the fifth to meet with the French King went ouer in person with a great power to besiege the towne of Bulloigne in France and when he saw that the Emperors Tent or Pauillion was made with the two pillars of Hercules and the inscription Plus vltra and likewise the French Kings Tent with the three Flower deluces and the title of Primus Christianorum Rex He caused an Archer to be made vpon his Pauillion with Bow and Arrowes and his inscription was Cui adherio praeest declaring thereby his present strength whereby hee did qualifie those warres and peace was made between the Emperor and the said French King it being true that the state of a Prince doth as much consist by reputation as by strength Our Soueraigne Lord King Iames hath also beene mindfull of his right of distinct dominion for the great blessings which almightie God hath allotted to the Kingdomes of Great Brittaine Ireland and the Isles adiacent vnder his Maiesties Dominions is so visible to all the world as that thereby they are rauished with admiration For albeit that the earthly blessings are produced in seasonable times yet the blessings of the Seas are directed and pointed at by the finger of God at infallible seasons causing those watrie creatures to offer themselues for our sustenance and for the generall good of all creatures in places certaine within his Maiesties Seas Streames and Dominions and not into the maine where fishing cannot bee effected Whereupon his Maiestie before his comming into England did let the fishing of Scotland to the Hollanders for fifteene yeares it being agreed by more ancient Treaties betweene them that the fishing then agreed vpon should be eightie miles from the Coast to the end the Scoles of Herrings should not bee interrupted His Maiestie in the fourth yeare of his Raigne of Great Brittaine made a Graunt to one Collyns of Couentrie for twentie one yeres for the fishing in some parts of Ireland Graunts made for fishing and the like Graunts haue beene made for the Isles of Garnesey and Iarnesey according to the Common Law of England By the Common Law which in this point concerning his Maiesties right of dominion is very copious the handling whereof I leaue to the learned and judicious of the said Law In the seuenth yeare of his Maiesties said raigne his Highnesse caused a Proclamation to be made concerning his Dominion of fishing which being compendious and substantiall I thought conuenient here to be inserted Verbatim IAMES By the Grace of God King of Great Brittaine France and Ireland Defendor of the Faith c. To all and singular persons to whom it may appertâ—ine greeting Although We doe sufficiently know by Our experience in the Office of Regall dignitie in which by the fauour of Almightie God Wee haue beene placed and exercised these many yeares as also by obseruation which Wee haue made of other Christian Princes exemplarie actions how far the absolutenesse of Our Soueraigne Power extendeth it selfe And that in regard thereof Wee need not to yeeld account to any person vnder God for any action of Ours which is lawfully grounded vpon that iust Prerogatiue Yet such hath euer beene and shall be Our care and desire to giue satisfaction to Our neighbour Princes and friends in any action which may haue the least relation to their Subiects and Estates as We haue thought good by way of friendly Praemonition to declare vnto them all and to whomsoeuer it may appertaine as followeth Whereas Wee
care must be had herein both by the parties and Scriueners which make the bonds Concerning agreements to be made between Bankrupts and their Creditors there is a question made That if Creditors do agree with their Debtors for some part of their debts Agreements to be made between a Bankrupt and his Crediâ—ors because of the Debtors losses and misfortunes Whether when the parties being become rich againe may reuoke their agreement And the law hath determined this question That if vpon the agreement there be an Acquitance made by the Creditor then the same agrement is absolute and cannot be reuoked vnlesse the Acquittance were conditionall The greatest number or the greater summe of the Creditors being agreed with the Debtor are bound to be conformable with the other and to do the like with the helpe of authoritie not onely by the Ciuile law but also by the Merchants Court of Prior and Consuls which authoritie is alreadie noted before to bee in the Lord Chauncellor But the difference is great betweene the greater number of the Creditors or the greater summe for a man may haue an infinite number of small Creditors or few Creditors for verie great summes by him owing so that the greater number should ouerrule the greater summes It is therefore thought conuenient to follow the greater summes which neuer the lesse doth not hinder the smaller number to proceed vpon goods appertaining to the partie if they can find them if by the said authoritie the whole estate of the Decoctor be not managed Bills of conformitie in Chancerie wherupon the Bills of conformitie were of late yeares vsed in the Chauncerie which by the Parlement Anno 1621 are made void because of diuers great abuses committed in thedefence of Bankrupts who to shelter themselues from the rigor of the Common-lawes did preferre their Bills of complaint in Chauncerie which was in the nature of a Protection and the parties broken became to be releeued for easie compositions with their Creditors albeit at charges another way extraordinarie Now concerning fugitiue persons being indebted if they be Merchants they are taken pro confesso to be Decoctors or Bankrupts Fugitiue Merchants for they in substance by their absence denie to giue a reason of their losses to their Creditors which they ought to do if by fortune they are to haue good and fauourable dealing if it shall appeare that by losses and not by wastfull or lewd behauiour they came behind hand whereby the Creditors are induced to diuide in some measure the parties goods amongst them as they may by the law and custome of Merchants The statute made in the 34 yeare of King Henrie 8 hath well prouided against these fugitiue persons Proclamation against fugitiue Merchants that a Proclamation shall be made against them That if they doe not returne within three moneths after they shall haue notice of it which by Affidauit must be certified to present themselues in some conuenient place to be declared that then they shall be proceeded against as if they were contemners of the lawes of the realme And in the meane time by order from the Lords of the priuie Councell who haue authoritie to grant a warrant for the Proclamation all such reuenues of lands or goods to be sequestred and afterwards to be sold as cause shall require for the paiment of the Creditors which execution hath lately beene practised against diuers but lyeth onely against the kings subiects but not against strangers nor other persons which are not Merchants or trades-men All meanes of strict proceeding are to be vsed against those fugitiue Merchants as also other Decoctors and against them that do giue them any aide or assistance which is not tollerated by the law for he that will helpe them because he may the sooner recouer of him his owne payment may be conuicted of fraud by the law when it is found out and discouered besides that the other Creditors may call that mony backe againe to be distributed amongst them And the Dictio Nullo modo How to be takâ—n nullo modo is to be vnderstood at no time and without any reason of excuse in all other things prohibited by the law especially in this which concerneth the disturbers of commerce so much to be celebrated And because many questions do arise by the meanes of the interruption of trafficke by Bankrupts and that as I haue noted alreadie the lawes in most countries doe differ in the proceedings against them I haue therefore in this Chapter made a more ample discourse both of the Ciuile Law the customes of the Merchants courts and the examples and lawes of other countries to preuent the multiplicities of cases which might be alledged by true obseruation of the premisses A question which concerneth the estate of Bankers The question concerning Bankers which haue their seuerall places or Bankes in diuers iurisdictions and become Bankrupt How their Creditors shall be dealt withall in the diuiding of their estates betweene them is worthie the obseruation for whereas they keepe two three or more Bookes of account in seuerall places and therein distinguish the Creditors of their seuerall Bankes The Ciuilians are of opinion for the most part That the Creditors of one iurisdiction should not participate with the Creditors of another iurisdiction and haue put the same in practise but the court of Merchants do vse to take an account of the state of the Bankrupt dispersed in all countries and diuide accordingly * ⎠* CHAP. XLV Of Manufactures HAuing so often inculcated that important argument whereby true Merchants are to be carefull That trafficke and commerce may be profitable as well to the common-wealth as to themselues we may not omit to intreate of Manufactures as an important matter to the customarie Law of Merchants considering the aboundance of materials and stuffe which the realms of England Scotland and Ireland doe affoord Idlenesse the root of all euill whereby the people may be set on worke to auoid idlenesse which is the root of all euill most dangerous in countries which are populous Experience demonstrateth vnto vs how many other nations hauing not stuffes of their owne but from others do neuerthelesse set their people on worke vpon the stuffe and materialls of other countries making and dispersing the same into a large trade Therefore it is conuenient to incourage all men to reward new inuentions with some priuiledges for a time and not for euer New inuentions to be rewarded to auoid the course of Monopolie and to make the benefit to the common-wealth more generall which maketh men painefull by the radicall moisture of gaine whereof Merahants are to haue a consideration so to reward the artificers and handy-crafts-mens labours that they may liue by their worke according to the Dutch Prouerbe which themselues vse so frequently Leuen ende laeten leuen To liue and to let others liue This is to be regarded also by states-men Liue and let liue forbearing to
a dog vseth to bite or gnaw vpon a bone so that he that biteth not doth not commit Vsurie for Vsurie is none other thing than a biting as I said of the verie Etimologie and proper nature of the word otherwise it cannot be called Neshech as the Hebricians say According to the definition then of biting Vsurie we are to proceed in this discourse after that we haue briefely declared the Laws and Prohibitions against Vsurie wherein wee must begin with the holie Scripture obseruing these places God saith in the 22 of Exodus Holie Scripture If thou lend Money to any of my people that is poore by thee thou shalt not be an Vsurer vnto him neither shalt thou oppresse him with Vsurie In another place Leuit. 25. If thy brother be waxen poore and fall into decay with thee receiue him as a stranger or a soiourner Deut. 23. and let him liue by thee and thou shalt take no Vsurie of him nor yet aduantage but shalt feare thy God that thy brother may liue with thee Psal. 15â— Ezech. 18. Matt. 5. Luke 6. Thou shalt not lend him thy money vpon Vsurie or lend him of thy food to haue an aduantage by it Adde vnto this the places noted in the margine and so let vs come to the holie ancient fathers Saint Hierome saieth There is no difference betwixt Vsurie Fraud and violent Robbing Ancient Fathers Saint Augustine saieth An Vsurer is he said to be who doth demand more in money or any other thing else than he hath deliuered according to which the said Saint Hierome also saieth That some do thinke Vsurie to be onely in money but let them well vnderstand that Vsurie is an ouerplus in any thing aboue that which was lent Amb. de beno mortis Saint Ambrose likewise saieth If any man take Vsurie he doth commit extortion rapin and pillage and shall not liue the life as who should say he shall die therefore To omit many other of the said ancient fathers Saint Bernard saieth That the Vsuror is a theefe in law because the Ciuile Law telleth him before hand what it is that he must rob from others as who should say such Lawes as permit Vsurors are lawfull theeueries Canon Law Hereupon the Canonists haue made Vsurors to be defamed persons and if any man make by his last Will and Testament any goods vnto them the Testament may be broken neither are they to communicate with Christians or to enter into their congregation to offer any oblation and when they are dead they should not be buried in Christian buriall and if they be the doers thereof are excommunicated Decretals Decretals and Clementines made by diuers Popes are directly against Vsurie Alexander the Pope doth straightly forbid all Vsurie not onely vnto the Clergie but also vnto the Layitie In the booke Sextus Decretalium Gregorie the tenth Bishop of Rome of that name saieth We being desirous to stop the gulfe or whirlepooles of Vsurie committed which doth deuoure soules and vtterly wasteth wealth do command vpon the threatnings of Gods curse that the constitution of the latter Concile set forth against Vsurors be without any violation at all fully wholly obserued and therupon a prohibition is made That no Corporation Colledge or Vniuersitie shall let any house or dwelling place to any stranger Vsuror Ciuile Law Baldus the Ciuilian speaketh bitterly against Vsurors in his booke of Councells saying That Vsurie is a gainefull piracie contrarie to nature vpon the loane of any thing that consisteth vpon Number Weight and Measure Bartolus saieth That all Vsurie is vtterly forbidden and offensiue to God and man So doth Panormitane and diuers others learned in the Ciuile Law Aristotle Aristotle in his Politickes sayeth That such money as bringeth forth money through Vsurie is an ougly beast that bringeth forth monsters from time to time such as are not in nature The Romanes being in their most flourishing estate made a law by their twelue Tables that no man should put forth money vpon Vsurie but after one in the hundreth called Faenus vnciarium whereas before that time rich men might take at their pleasure Afterwards it was ordained at the intreating of the Tribunes to take an ounce and a halfe and that was thirtie shillings in one hundreth pounds after that it came to foure in the hundreth called Triens and last of all to six in the hundreth called Semissis And yet all these alterations and diuersities of suffering in Vsurie notwithstanding Genitius Law one Genitius a Tribune published a law That it should not be lawfull for any man to be an Vsurer at any hand or by any maner of meanes and so by all deuises that might be it was vtterly forbidden by diuers Edicts and Proclamations which being often repressed did yet notwithstanding breake out by wonderfull strange meanes Wherefore Tiberius Caesar to remedie this euill and that no Vsurie should be vsed he caused a maruellous masse of money to be laied in banke to the summe of two millions and an halfe of Crownes being fiue hundred thousand pounds English or sterling and tooke order that euery man should haue credit for three yeares without paying any Vsurie at all Cornelius Tacitus putting in suretie for the double value of that he borrowed And Cornelius Tacitus a renowmed Writer saith The canker of Vsurie is an old venimous sore and the chiefest head and cause of rebellion and variance in Countreys and Common-weales and therefore it was altogether banished in the old time when least corruption of life appeared amongst men Lucullus so hated the excessiue dealings of the Vsurers that wheras all Asia was ouerwhelmed with Vsurie he cleered the same vtterly from all Vsurers And so did Cato in Cicilia Anthoninus Pius Alexander Seuerus Claudius Vespasian Leo Emperours and diuers other Emperors did restraine the couetousnesse of Vsurers from time to time And the Emperor Charles the fifth of late yeares at an assembly at Augusta in Germanie did conclude with the assent of the whole Empire That no manner of contract that had any fellowship with Vsurie should be allowed but rather that all Vsurie should be auoided for euer and be neuer more vsed and if any were found to haue made any such contract the same man to forfeit to the Magistrate or ordinarie Iudge the fourth part of his principall summe Plato the Philosopher warneth among other things Philosophers and Orators in his fifth Booke of Lawes That no bodie whatsoeuer hee bee that will beare the face of an honest man doe let out his money for Vsurie or gaine The like saith Cicero and many other learned Philosophers and Orators as we haue noted of Aristotle So did diuers Law-makers banish Vsurie Law-giuers and vtterly suppresse the same as Licurgus in Sparta amongst the Lacedemonians Amasis in Egypt Solon in Athens Sergius Galba in Africa being gouernour vnder the Emperour Claudius and diuers others So that Vsurie
their bodies vntill the day of Iudgement For albeit the Spirit of man is rightly termed to bee the Facultie of the Soule The Facultie of the Soule is the Spirit of man yet the parts of the Soule concerning Vnderstanding and Will haue their proper relation for that part called Vnderstanding is seated chiefly in the Soule as Will is in the Spirit both to be accompanied with Knowledge The Phylosophers haue made this distinction by their Chimicall obseruation and such as place the Soule in the bloud dispersed through all the veynes of the bodie do also place the Will of man in the spirit residing in the heart of man which the Anatomists demonstrateth to be a little concauitie where the drops of the vitall bloud are placed in the heart which are feared vp and the place is shrunke in bodies which haue been poisoned To make application of this comparison betweene the Soule and Spirit Application of the comparison we shall find by the following discourse that euen as the Spirit of man is predominant ouer the Soule and Bodie in all the actions thereof which by the bloud are quickned and preserued euen so is the Exchange for moneys by Bills of Exchanges ouerruling the course of commodities and moneys in all places where the action of money is felt or seene directing the same by some due proportions accordingly CHAP. I. Of the Beginning of the Exchange for Moneys by Bills of Exchanges THE Exchange for moneys is of great antiquitie for as we haue declared the first Siluer moneys coyned by the Romanes is almost 1900 yeares since And euen as money was inuented to bee made of the best mettalls to auoid the troublesome carriage of commodities vp and downe and from one countrey into another So vpon the like consideration when other nations imitating the Romanes did coyne moneys The cause of the Exchanges Exchange by Bills for moneys was deuised to auoid both the danger and aduenture of moneys and the troublesome carriage thereof This money now being made by diuers Nations of seuerall standards and diuers stamps and inscriptions as a Marke of Soueraigntie caused them to appoint a certaine Exchange for the permutation of the seuerall sorts of coynes in diuers countreys without any transportation of the coyne but giuing Par pro Pari or value for value with a certaine allowance to accomodate the Merchant and the officers to execute the same were called Numularij Argentarij and Collybistae that is to say Numularij of Nummus or the coyne it selfe Argentarij because the Siluer coyne was most vsuall in the course of trafficke and Collybistae because it signifieth a reward for Exchanging Here now let vs obserue foure manner of Exchanges which haue beene vsed and in some countreys are yet continued albeit some of them are abrogated in England commonly called Cambio Commune Cambio Reall Cambio Sicco and Cambio Fictitio which denomination may be admitted The first manner of Exchange called Cambio Commune I Cambio Commune is properly that Exchange which the said Collibistae or common Exchangers did vse by the authoritie of Princes and Common-weales for the lawfull and currant moneys of their Kingdomes and Territories which was found to be verie expedient and necessarie and was established to preuent the exportation of money from one countrie into another countrie and these Exchangers did deliuer in all countries the Money in one specie for the Moneys in other species by them receiued as aforesaid Tables of Exchange Whereupon King Edward the third of England caused certaine Tables to be set vp at Douer and other places of the realme declaring the value of the said sundrie species of coyne of all countries trafficking with his subiects and the allowance which Merchants were to giue to haue their turnes serued as may appeare by the good Lawes made in his time when there was Moneys coyned in diuers places of this Kingdome and not in one mint onely within the Tower of London And this was long before the discouerie of the West-Indies from whence the ocean of Money did run into Christendome And for the gouernment of the said Tables all was at the direction of the Master of the Kings Mint at London and with a correspondence of other Mints namely at Canturburie at Kingston vpon Hull New-castle vpon Tine Bristoll and Exceter And the Exchanger for the King at London did also depute Exchangers in the most places except that certaine Merchants of Florence called Friscobaldi were the Kings Exchangers at Kingston Friscobaldi the Exchangers New-castle and Exceter who made the said Exchanges of value for value with a reasonable allowance and by their meanes were all the said Mints set on worke and the transportation of our Moneys was preuented for as Bishop Tursids booke of Arithmeticke declareth by giuing par pro pari or value for value there was no gaine left to the transporter The Kings of England did constitute these Exchangers Kings Exchangers euen as the Cambiadores and Banquers are vsed in other countries being authorised by the King or Prince of the said countries especially King Edward the first of England who had two Exchangers the one called Custos Cambij infra Turrim who had the charge in buying of bullion and to looke to the coynage of Money within the realme now called the Warden of the Mint the other was called Keeper of the exchange and rechange within or towards this realme for Moneys to be paied in specie by Bills of Exchanges beyond the seas And afterwards the said Exchanges were made without naming the species but according to the value of the seuerall coynes 2 Cambio Reall and this was called Cambium Regis or Royall Exchange which caused Queene Elizabeth to name the Burse in London accordingly This office appeareth to haue been in the eleuenth yere of the said King Edw. by an Act of Parliament made at Acton Burnel since which time the succeeding Kings and Queenes haue continued the same by sixteene seuerall Letters Patents And whereas it seemed that the said two Exchangers could not execute their offices conueniently being asunder it fell out that in Henrie the sixth his time a Law was made by which both offices were put into one mans hand and so continued many yeares vntill the time of King Henrie the eight Exchanges discontinued when he caused base Moneys to be made at the seige of Bulloigne whereupon no certaine Exchange could be grounded albeit that before that time in the two and twentieth yeare of his raigne he caused a Proclamation to be made according to an old Statute made in the time of King Richard the second The Chronicle of Graston That no person should make any Exchanges contrarie to the said meaning or Act of Parliament vpon paine to be taken to be the Kings mortall enemie and to forfeit all that he might forfeit For in his noble fathers time King Henrie the seuenth the Bankers had inuented a course of
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
haue no meanes at all and are kept in prison because they haue rich friends who for their sake liue and die miserably in prison Some haue meanes and will not pay of fraud and obstinacie but of these there is hardly found one in a hundred for if that were so the creditor who searcheth the verie reines of the debtor and his estate will rather seise and recouer the prisoners estate than cast him into prison where if he die he loseth all Now if an honest man may innocently fall in the Law by such a multitude of accidents practises and errours of others and by doing iust and friendly offices to others and may faile also in his estate and become insoluent by so many wayes casually and causelesly in himselfe and by the fault and errors of others and cannot be a criminall debtor but one way which is by fraud and obstinacie onely of which scarce one example is to bee found in a hundred how can it stand with any charitie or conscience to neglect and passe by so many circumstances and to fall vpon the debtor with such crueltie by laying such a heape of miseries vpon him his wife children and reputation at once as imprisonment bringeth It is true that the ancient Common Lawes of England are verie strict in this point of maintaining Pacts and Contracts but the contracts of those times were simple Recouery only against the estate honest and legall and the recouerie was against the estate only for there were no penall bonds knowne nor vsurie practised by Christians when those Lawes were made but all our contracts and bonds or the greatest part are corrupted with vsurie and forfeitures which are extortion in a high degree and to force men to performe such with the losse of their estates credit libertie and many times of life too is most inequitable The penaltie of Bonds vniust Especially being the Law prouides euerie creditor his full damage without the help of a penall Bond which sheweth that all forfeitures are needlesse and they are vniust also for they make the vsurer iudge of his owne damage which of right belongeth to the iudgement of the Law But it will be said that the Chancerie doth mitigate the hardnesse and rigour of the Law in vsuries for forfeitures and that wrong judgements may be reuersed by Attaint Errors Audita Quaerela c. The answere is That the remedie is worse than the disease for all courses of reliefe by Law in Chancerie are hard tedious vncertaine long and extreame chargeable and it is a lamentable case that when the debtor is vniustly or vnconscionably cast in the Law stript of his estate his bodie imprisoned his libertie tied vp his credit destroyed and his friends banished then to send him so disabled to seeke remedie by new suits in Chancerie which are chargeable aboue measure and with the same extremitie doth the Statute of Bankrupts deale with the poore debtor as heretofore hath beene declared That prisoners are compassed with a multitude of ineffable miseries and heauie afflictions and therefore some cannot choose to become weake in faith staggard or desperate when there is no man to speake a word of comfort in due season appeareth by the miserable ends of many desperate persons whereby one with shame and distemperature loseth his sense and dyes another for pouertie and want perished one with feare and griefe breakes his heart outright anothers heart that cannot breake the deuill is readie to teach him desperately how to make way one vncharitably flies from his keeper another desperately aduentures his life to breake prison and finally many are carelesse and giuen to all vices For faith is rightly compared to a Lampe Faith compared to a lampe which must haue oyle continually to maintaine their light which otherwise is soone exstinguished So doth the Word of God maintaine Faith by continuall preaching whereof prisoners are destitute for the most part Obiection Some men will excuse the vnconscionablesse of the Law alleaging that in seazing the debtors bodie and goods and giuing way to vsuries forfeitures and corrupt bargaines the Law doth no more than the debtor himselfe hath contracted vnder his hand and seale And Volenti non fit iniuria whereunto it is answered Answere 1 First that the guilt of the Law cannot bee so washed off for in debts where there is no contract vnder the debtors hand and seale the Law giues the debtors goods and his bodie into prison at the creditors will 2 That the debtor is not Volens for it is against euerie debtors will to pay vsurie or forfeiture but hee is pressed thereunto by his owne necessitie on the one side and by the creditors vncharitable will on the other who will not lend but for vsurie and forfeiture 3 The common saying volenti non fit iniuria is a false position else it is lawfull to knocke a man in the head that is willing to die which is absurd for the will or consent of the partie vnto an act that is in it selfe vniust cannot make the act iust nor iustifie the actour It is also obiected that if mens bodies may not be imprisoned how shall they recouer their debts Answere vpon the debtors estate only as this kingdome did heretofore and other kingdomes now do and therefore let the creditor ground his trust thereupon and trust no further than the creditors estate for thence onely can he haue true satisfaction It is replyed That there will be no more credit giuen if mens bodies may not be imprisoned and consequently trade and comerce wil decay Answer honest trade honest contracts and honest trust will notwithstanding be as plentifull for while there is the same vse necessitie and profit by commerce there must needs be the same effect True it is that vsurious contracts will bee more relatiuely made to euerie mans estate credit and honestie as they did in the times of the old law and of the Gospel and yet do in politicke gouernments It is against the creditors owne profit Against the creditors owne profit for all meanes of satisfaction must arise either out of the debtors credit out of his labour and industrie out of the will of his friends or out of his owne estate and all things that depriue or disable the debtor in any of these do weaken and lessen his meanes and consequently tend to the creditors preiudice and disaduantage Herein it is not needfull to rehearse all the former miseries decreasing the debtors estate for dayly experience proueth that many debtors haue offered at the first to pay the principall debt or halfe before they were cast in prison which afterwards by more troubles and charges comming vpon them were disabled to pay any thing how preposterous and absurd is it then to cast the debtors bodie into prison where his estate is wasted his credit spoiled his fortunes and vertues lost his bodie afflicted his life consumed and murdered and whereby the creditor bars himselfe from
a common-wealth for the maintenance of lawes which otherwise would be fruitlesse or made as it is said by some propter terrorem for preuention whereof it is verie commendable to preserue this life of the law consisting in execution which was the cause that commissioners haue beene heretofore appointed to retaine men in their dueties as the Nomophilats in Greece the Censurors amongst the Romans the Ephores at Lacedemon the Areopagits at Athens the Visitors in Spaine Commissioners to retaine Officers in their dueties and the Commissioners of Troyle the Bastort in Edward the first his time for all humane actions are so flexible to euill that they haue need of a continuall remembrancer to vertue for the conseruation of the publicke good If we will make a comparison betweene the execution of Criminall causes and ciuile we shall in a manner find the same to be all one effectually for the generall manner of death imposed by the law is hanging where in other countries they haue diuers manners of executions according as the fact is haynous Murder being a great offence hath in all ages been punished with death but stealing of goods was alwaies taken to be much inferior because the law of God did not punish the same by death as is now vsed and yet a death by sudden execution is better than a lingering death by famine imprisonment and other aduersities before remembred The effect of the kings Prerogatiue Royall to be mercifull euen when law hath had her full course is to be seen rather in causes ciuile than criminall and that in the reliefe of poore distressed prisoners and others Iustice and Mercie in God are not contraries seeing the Mercy of God whose Lieutenants they are on earth is aboue all his Workes which maketh me to remember an error of the common people which thinke the Iustice and Mercie of God to be contraries for if they were they could not be in God because the god-head being but one and alwaies like it selfe cannot admit contraries and contraries they cannot be being both vertues whereas no vertue is contrarie to vertue but onely opposite to vice so that respecting the Kings Prerogatiue in criminal causes when the law hath determined death or punishment by perpetuall imprisonment or banishment the King imitating Gods mercie doth restore life freedome and libertie much more may the King do the same in ciuile causes when the law commaundeth imprisonment vntill satisfaction be made of the iudgement giue libertie and prolongation of time as hauing an interest in the persons of his subiects as we haue obserued I haue herein been the more ample because it concerneth the life of many honest men c. CHAP. XIII Of Denization and Naturalization of Merchants THE manner to make Merchant strangers Artificersâ— or Handie-crafts men to be Denizons or Naturalized was in times past without any difference and they did enioy the like libertie and priuiledges and were most commonly made by his Maiesties Letters Patents vnder the Great Seale of England by his Highnesse Prerogatiue Royall whereby they did enioy all the freedome and immunities that naturall subiects doe enioy and were so reputed and taken by the Lawes of the Realme vpon their oath made in Chancerie of alleageance to the King and the Common-wealth But the same was afterwardes called in question vpon the misdemeanors of some forgetfull persons and then Denizons were made to pay Customes to the King as strangers howbeit they might buy leases lands and houses as English borne subiects and their children heere borne should bee free and pay but English Custome for goods imported and exported and may become freemen of London and buy cloth in Blackewell Hall and all other Markets and transport the same where it pleased them albeit the Merchants Aduenturers haue infringed the same Naturalized distinguished Neuerthelesse some priuiledge to pay English Custome being granted to some particular Merchants by the Princes prerogatiues by Letters Pattents vnder the Great Seale it came to passe that these were named Naturalized which might be placed in offices as Iustices of the Peace and Quorum high Sherifes of the Counties and other places of dignitie and came to bee made Knights and Barronets and some of them buying lands and leases made great purchases married their daughters vnto diuers Gentlemen and others did also sell lands againe and bought other lands which buying and selling of lands did require assurances to be made and therein some Lawyers were of opinion that by the Law the said assurances were not of sufficient validitie without an Act of Parlement and then the Acts of Naturalization were made but the making of Denizons was alwayes continued by his Maiesties Letters Pattents onely and they are not subiect to the Statute of Employment albeit they pay strangers Customes Denizons not subiect to the Statute of Employment and diuers other charges which the natiue subiects doe not pay whereof Merchants are to take notice No stranger which is a Mechanicall person is much inclined to be a naturall subiect by Act of Parlement because of the charge of it which may bee about 30 ll albeit foure or fiue persons may ioyne together by petition to the Parlement and haue one Act for them all the forme whereof is commonly as heereafter followeth And here note that a Merchant is in no danger if hee be neither Denizon nor Naturalized but may deale trafficke and negotiate at his pleasure but he may take no leases nor buy lands IN most humble manner beseech your most excellent Maiestie your humble and obedient Orators I. L. of Florence your Maiesties seruant T. M. c. R. B. and M. Q. That whereas the said I. L. the son of A. L. and L. his wife strangers were borne at Florence in Italy in the parts beyond the Seas and whereas c. And whereas M. Q. being the sonne of M. Q. and C. his wife borne at Bridges in Flanders in the parts beyond the Seas in lawfull matrimonie and hath for the most part these twentie yeares remained and made his abode in London within your Maiesties Realme of England during which time hee hath demeaned himselfe faithfully and dutifully towardes your Highnesse and your Lawes yet for that both he and the rest of your Maiesties Orators were borne in the parts beyond the Seas they cannot take benefit of your Maiesties Lawes Statutes and Customes of your Highnesse Realme of England as other your Maiesties subiects borne within this Realme to their great preiudice losse and hinderance It may therefore please your Highnesse of your most noble and aboundant grace that it may be ordained enacted and established by your Highnes the Lords Spirituall and Temporall and the Commons of this present Parlement assembled and by the authoritie of the same That your Maiesties most humble Petitioners I. L. T. M. R. B. and M. Q. and euerie of them shall from henceforth bee adiudged reputed and taken to be your Highnesse naturall subiects and as persons
naturally and lawfully borne within this your Maiesties Realme of England and also that they and euerie of them shall and may from henceforth by the same authoritie be enabled and adiudged able to all intents and constructions to demaund challenge aske haue hold and enioy landes tenements hereditaments and rents as heire or heires to any of their auncestors by reason of any descent remaine reuert or come to them or any of them by any other lawfull conueiances or means whatsoeuer or which hereafter shall come c. as if they and euerie of them had beene your Highnesse naturall subiects borne and to hold and inioy to them and euerie of them ioyntly and seuerally lands tenements and hereditaments or rents by way of purchase gift graunt or otherwise of any person or persons to all constructions and purposes as though they and euerie of them had beene your Highnesse naturall borne subiects and also that they and euerie of them from henceforth may and shall bee enabled to prosecute maintaine and avow iustifie and defend all manner of actions suits plaints and other demands whatsoeuer as liberally frankely fully lawfully surely and freely as if they and any of them had beene naturally borne within your Maiesties Realme of England and as any other person or persons naturally borne within the same may in any wise lawfully doe any Act Law Statute Prouiso Custome Ordinance or other thing whatsoeuer had made ordained or done to the contrarie in any wise notwithstanding And your Petitioners shall daily pray for your Royall Maiestie long in honour and most safetie to remaine ouer vs. This Petition in nature of an Act of Parlement The manner of proceeding in Parlement is deliuered to the Speaker of the Parlement who vpon the second reading in the Commons House procureth the same to bee referred to certaine Committees before whom the Petitioners doe appeare and after examination if there be no apparant cause that might crosse them the Bill is returned into the Parlement and read for the third time as the manner is of all Acts and then it is carried vp to the higher house and there it is commonly of course also read three times and so allowed and there it doth remaine vntill the last day of the Session of Parlement and then the Kings Royall Assent is had therevnto and there is written on the backside or within these wordes Le Roy le Veult And if it be anâ— Act which the King will not passe the Clerke of the Parlement writeth Le Roy S'aduiser'a which is a cleane and absolute refusall and all which was done is void and cannot bee reuiued in another Parlement without to begin all from the beginning againe So much for England In France all strangers that are not borne within the Kingdome and reside or dwell in the same Aubeine in France are subiect to the right of Aubeine so called Tanquam Alibi nati for after their death if they be not naturalized the King doth seise vpon all their goods they haue in France and appropriateth the same to his Exchequer or Finances without that the said strangers can dispose thereof by Testament or Will or that their lawfull heires can claime the same howbeit they may giue them and dispose thereof whiles they liue by contracts made betweene them A stranger also not dwelling within the Realme yet hauing gotten wealth or meanes within the same may dispose of it vnto his heyres and others although they were strangers Also if a stranger trauelling through the Kingdome of France should chance to die his heires shall enioy his goods which hee hath left at the time of his decease in France But when a stranger taketh letters of naturalization then may hee get wealth and possessions within the Realme lawfully and freely which letters of naturalization must be recorded in the Chamber of Accounts vpon paine of a penaltie payed to the King and his lawfull heires shall enioy the said possessions and goods so as hee be nature of the Realme or any other to whom the same be giuen by Will or Testament so as he also be naturalized as aforesaid But Monsieur Papon the Ciuilian saith That it is not sufficient for one to enioy the same to bee borne within the Realme but it must be also of a woman taken in marriage within the Realme and heerevpon alleageth an arrest or sentence of the Parlement of Paris whereby a cosin of a stranger deceased was preferred before the sister because the cosin was born within the realme and dwelling in the same and the sister did not dwell within the Realme and was borne in another countrey albeit she caused her selfe to be Naturalized after the decease of her brother whereof the Court had no regard because the goods by succession were gotten before which could not be made void by the Kings Letters Pattents Monsieur Banquet is of opinion That a Frenchman being departed the Kingdome for to dwell in another countrey that his goods present and to come doe appertaine vnto the King and cannot dispose thereof by Will or Testament as it hath beene proued by diuers Decrees of Parlement The King is Lord of all vacant goods and therefore wiues and children are to take Letters of Naturalization to purchase their quietnesse And if any stranger borne and naturalized should bee out of the Kingdome some eight or ten yeares vpon especiall occasion or otherwise hee is at his returne to take new Letters of Naturalization or a confirmation of the former by some approbation An obseruable consideration And herein is a speciall point to bee noted as a matter of record that those of Flanders Millaine and the French Countie of Sauoy are not bound to take Letters of Naturalization to dwell in this Kingdome because the French Kings pretend that the said countreys are theirs and were neuer alienated by any conseâ—t of theirs but are countries which at all times haue belongeth to the Crowne of France who doth acknowledge the subiects to bee true and loyall Frenchmen But it is requisite if they come to dwell and inhabite within the Realme that they take Letters of Naturalization to the end the Officers do not molest or trouble them By the premisses wee see that the Naturalizing in France is farre more compulsorie for Merchants than in England howbeit that in both Kingdomes if a stranger Naturalized after many yeares that hee hath inhabited the same bee desirous to returne to his father-land or natiue countrey he may surrender his Letters Pattents and bee discharged of his oath * ⎠* CHAP. XIIII Of the determination of Sea-faring causes HAuing now hitherto intreated of the Customes of Merchants with their Adiuncts and Accidents and therein obserued Time Number Weight and Measure as also the three Simples and Essentiall parts of Trafficke with their Effects and Properties let vs now consider of the Manner and Methode of the proceedings therein to see by what meanes they are determined and executed
Retaile 14 Because the same is most agreeable with the nature and disposition of the people and the qualitie of the countrey which by reason of the fertilitie affordeth verie conuenient meanes for the triall thereof by Iuries of twelue men the nature of the people being gentle 15 Because men are to reduce the state or issue of their cause vpon one peremptorie exception to bee tried by the verdict of twelue men whereby matters are determined with expedition 16 For that it commandeth not any thing but what is honest reasonable and possible in it selfe and all impossibilities are excluded thereby 17 For that thereof may bee made an Arte or Science in manner before declared seeing the same is finite in her Precepts according to the old Maximes or Principles whereunto euerie thing being reduced and explained as aforesaid all ambiguities and darke sentences would be taken away and the Iudges should easily giue a cleare vnderstanding thereof according to the order of Solon who made the Arropagits of Athens to be as Guardians of the Law 18 For that the triall thereof by a Iurie of twelue men vpon one point peremptorily or in certaintie is briefe and substantiall because the witnesses which are produced before them by whose euidence the state of the cause is made must be approued by the verdict of twelue men as aforesaid 19 For that the matter of Fact is distinguished from the matter of Law and is accordingly decided either by the Iurie vpon the matter of Fact or by the Iudges vpon Demurrer or otherwise vpon the matter of Law 20 For the indifferencie of the triall of controuersies and questions betweene the natiue subiects and aliens for they may haue their trialls Per medietatem linguae that is to say halfe the Iurie of strangers and the other halfe of English subiects to auoide partialitie 21 For that the Serieants and Councellors at the Law are to giue counsell and to helpe the poore which are not able to prosecute Law at their owne charges which they doe in forma pauperis by direction of the Lord Chancellor and the Lords chiefe Iustices of the Kings Bench and Common Pleas. 22 Finally the Common Law is excellent for hauing fewer faults and imperfections than any other Law being most sufficient to vphold the common-wealth in quietnesse Thus the Common Law of England hath like a Queene a Predominant power from whence proceedeth mutuall loue and sure amitie from the Prince to the subiects and from the subiects againe due obedience to the Prince in a most pleasant harmonie and concord deseruing the name of a Law receiued published and recorded without any reason to be rendred for the same as it were Lex cum Prologo wherewith Seneca found fault when he said Iubeat lex non suadeat And as the Law is deriued à ligare to bind so is the whole State of the Common-wealth bound to the head and may be made easier in practise For as the saâ—d Seneca saith Nil est quod pertinax opera diligens cura non expugnat Of the Lawes of the Kingdome of France THe Lawes of France are either written or customarie and according to this diuision the countrey is diuided Acquitanie and a part of Celtica next vnto it is called Pays de Droict escript because the Ciuile Law of the Romanes â—â— there in force Written Law the reason whereof is thought to be because the Romanes did continue long in those parts after the Frankes had made a thorough conquest of the other Belgica and the other part of Celtica is called Coustumier because for the most part they are gouerned by their auncient customes Ancient Customes which amongst them haue the force of Lawes howbeit neither the Ciuile Law nor the customarie are further in force than they are agreeable with the Edicts of the King Vnder the Law written are comprehended The Ciuile Law The Kings Edicts and Ordinances made by aduice either of the priuie Councell or of the three estates and The Arrests or Ordinances of the Courts of Parlement In the erections of their vniuersities of Law the King expresly declareth That they are not bound to the Ciuile Law neither receiue it for further vse than to draw instructions of good gouernement and reason from it as appeareth in the Charter at Orleans by Phillip le Bell Anno 1312 wherein hee sheweth that this Realme is gouerned by Custome and not by the Ciuile Law except in some Prouinces which the Kings haue permitted in some cases so to doe not as bound but as willing to continue the Law which their subiects of auncient time haue vsed So that the Ciuile Law generally is not in force but onely for direction and forme of pleading and proceeding in the order of the processe and where it is most in force the Courts of Parlement haue authoritie to construe and interprete it as they thinke good Of all the written Lawes in France the Ordinances and Edicts of the King are most in force insomuch as they are acknowledged for the onely Lawes and all other haue their life from them and are so farre forth auailable as they are strengthened by them The arrests of the Courts of Parlement are of great authoritie being pronounced in the name of the King and are as Lawes to be followed in all cases In like manner their Ordinances are to be followed onely during the time that the King prouideth not otherwise and in their owne circuit onely for they haue not authoritie to make Lawes generall and perpetuall The Customes which diuers Prouinces claime are of late yeares drawne into writings and published in print for the more easie vnderstanding of them and the auoiding of confusion so that now all the Lawes of France may be said to be written Lawes this was begun in the time of Charles the seuenth Anno 1453 and ordered also in the time of Henrie the third Anno 1579. Subsidies and jmpositions This manner of gouernement causeth subsidies and jmpositions to bee made as reuenues of the Crowne by the Kings authoritie which were at the first granted by the three estates vpon vrgent necessitie of the affaires of the Realme onely Clergie Nobility and Comâ—inaâ—le but now they are growne to be ordinarie Charles the seuenth was the first that made them ordinarie for the payment of souldiers Francis the first and Henrie the second did the like Personall subsidies are taken by the pole whereof Ecclesiasticall men Noblemen and Officers of the King Queene and children are exempted Reall or patrimoniall subsidies are leuied by lands in some prouinces as Languedoc and Prouence whereof no persons are exempted Mixt subsidies are leuied of the yeomandrie and some persons of meanes The greatest imposition is vpon Wines now fifteene soulz vpon euerie mewe And vpon Salt appointed by Philip de Valois Magazins of salt called Magazins or Gremers for salt forbidding Merchants to trafficke for it setting a rate of foure deniers vpon euerie pound of
Coelo the rather for that so many good Acts of Parlement haue beene made long since concerning the same when the Staple of our commodities did flourish both here and beyond the Seas in the time of King Edward the third The maintenance of â—ree Trade Anno 1622. And hauing of late published tenne causes of the decay of Trade it may be thought conuenient to examine the same vpon the said points 1 The vnderualuation of our moneys by Bills of Exchanges and the ouerualuation consequently of forraine coyne vnto vs which is the Efficient Cause of the want of money in England 2 Vsurie Politike practised by many and abandoning Trade 3 The litigious suits in Law to the hindrance of Trade 4 The neglect of the fishing Trade preoccupied by other Nations 5 The endraping of Wooll in other countreys of late much increased 6 The policies of Merchants of seuerall Societies 7 The false making of Cloth and other manufactures 8 The exportation of the materialls of Woolls Woolfels c. 9 The warres of Christendome Pirats and Bankerupts 10 The immoderate vse of forraine commodities within the Realme But before we come to this examination The beginning of the Staple let vs obserue the beginning of the Staple and their priuiledges in the gouernement thereof The most ancient foundation of Merchants and merchandising in this Kingdome both for Trade and Gouernement had by continuance of time before King Henrie the third did obtaine the name of Staple the commodities of the Realme as Woolls Leather Woolfells fells Lead Tinne Butter Cheese Clothes and other commodities were called Staple Merchandise The Ports from whence the said commodities were to bee transported were called Staple Ports as London Westminster Hull Boyston Bristoll Southampton New Castle and other places The places of residence of these Merchants both within this land and beyond the seas were called the Staples the Lawes and Ordinances made by the said Merchants were called Staple Lawes vnder their gouernement consisting of a Maior two Constables and other Officers hath the trade of this Kingdome time out of mind flourished to the great inriching of the Kings and Kingdomes and it hath beene supported and assisted by the wisedome of the State in all ages as may appeare by the seuerall Acts of Parlement made for that purpose in the times of Henrie the third Edward the third Richard the second Henrie the fourth Henrie the fifth Henrie the sixth and King Henrie the seuenth So that comprehending the Merchants aduenturers Societie with them which began in the said time of King Henrie the seuenth it is aboue foure hundreth yeares standing that the said Societie hath beene as we haue noted For by the prouidence of all those Princes the Staple Trade was from time to time established and especially by King Edward the third in whose raigne a great number of memorable Lawes were made for the purpose appointing the said officers and their fees to preuent extortion and all the Kings subiects that would bring their goods to the Staple and trade The ancient free Trade according to the Lawes and Ordinances thereof were admitted to be Merchants such was the free trade of this kingdome in those daies wherein the subiects of all sorts vpon all occasions might freely participate vnder gouernment At these Staples were the Kings Customes duely collected and by the officers of the Staple at two seuerall times paied into the Kings Exchequer and by their gouernment were many inconueniencies preuented whereby the former causes of the decay of trade were either moderated or reformed namely 1 The moneys of the Realme were required to bee answered in true exchange according to their intrinsike value and their Doller or other forraine coyne was by the Maior and Constables valued accordingly for there was no merchandising exchange vsed neither were Bankers knowne and when there wanted money in the kingdome or was like to want order was taken by them to import Bullion either the 1 â— or 1 â— part of the value of commodities exported The debts betweene Merchants were transferred or set ouer by bills to bee registred before the Maior or Constable which was currant without the strict proceedings of our Common Law And the like may be done now by a Register authorised by his Maiesties letters Parents 2 In those dayes vsurie was accounted to bee an abominable thing for it was not vsed by any course politike but seeing it is now so generall in all countreys the best remedie to abate the same in price is to procure plentie of money within the Realme by the meanes before mentioned which will bee more effectuall of course than any law that will be deuised for the moderation thereof 3 To auoide the litigious suits in law the said Maior and Constables of the Staple had authoritie to determine them with all expedition and if it were vpon a difference betweene a Stapler and a Merchant stranger there were two Merchants strangers admitted and ioyned with the Maior or Constables to determine the same and that with a present execution without delay especially vpon a Statute Staple acknowledged before the Maior or Constable as aforesaid 4 The fishing Trade was not preoccupied by forrain nations as it hath beene within these hundreth yeares as hath beene noted albeit such Ships as were permitted to fish in the Kings Seas and dominions payed six pence for euerie tunne burthen which is now eighteen pence and this trade might be established with vs notwithstanding that the seuerall Societies of the Merchants Aduenturers Russia and Eastland Merchants are of opinion that England cannot maintaine the same and the cloth Trade together as they haue certified 5 The indraping of wooll or making of cloth being of late much increased beyond the Seas and lesse cloth made with vs may giue the better meanes to establish the fishing Trade as aforesaid 6 The pollicies of Merchants of seuerall countries is to bee met withall as the Staplers did in times past looking to the sales both of woolls and all other Staple commodities and the prices of forraine commodities to preuent the ouerballancing in price of the said forraine wares with our natiue commodities 7 To preuent the false making of cloth let vs obserue that at these Staples Merchants goods were alwaies diligently and carefully viewed and subscribed by the Correctors and other Officers of the Staple to the end that all goods exported might bee answerable in goodnesse to their expectation vpon the view required whereby this Staple Trade continued without any interruption for they were the sole Merchants of the Realme without competitors vntill the time of King Henrie the fourth at which time certaine Mariners and Mercers of London vsing to barter English clothes in Holland Zealand Brabant and other places had by the said King Henry the fourth a gouernour set ouer them onely to bee a iudge to heare and decide their controuersies and to punish their misdemeanors with license that they might congregate themselues for that