The Online Library of Liberty

A project of Liberty Fund, Inc.

• The Preface.
• Memoirs of Cornelius De Witt and John De Witt,
• Thetrue Interest,andpolitical Maximsof the Republick of Holland and West-friesland.
• Part I.
• Chap. I.
• Chap. II.
• Chap. III.
• Chap. IV.
• Chap. V.
• Chap. VI.
• Chap. VII.
• Chap. VIII.
• Chap. IX.
• Chap. X.
• Chap. XI.
• Chap. XII.
• Chap. XIII.
• Chap. XIV.
• Chap. XV.
• Chap. XVI.
• Chap. XVII.
• Chap. XVIII.
• Chap. XIX.
• Chap. XX.
• Chap. XXI.
• Chap. XXII.
• Chap. XXIII.
• Chap. XXIV.
• Chap. XXV.
• Chap. XXVI.
• Part II.: Of the Interest of Holland, In Relation to Foreign Princes and States.
• Chap. I.
• Chap. II.
• Chap. III.
• Chap. IV.
• Chap. V.
• Chap. VI.
• Chap. VII.
• Chap. VIII.
• Chap. IX.
• Chap. X.
• Chap. XI.
• Chap. XII.
• Chap. XIII.
• Chap. XIV.
• Chap. XV.
• Part III.
• Chap. I.
• Chap. II.
• Chap. III.
• Chap. IV.
• Chap. V.
• Chap. VI.
• Chap. VII.
• Chap. VIII.

CHAP. XXV.

IT is well known that the German emperors drove out of these lands the Normans, and according to their custom divided the provinces among twelve or thirteen lords their favourites, making one of them the earl, who, as the* emperor’s stadtholder, was to govern this country with the assistance of the said nobility, without soldiery. And in case of war, if he and these noblemen, and common inhabitants, were not able to defend themselves against a foreign power, he was to be assisted by the duke of the next adjacent mark-lands, who was always arm’d and had 12 earls under him, and at his disposal.

Relation made of the state of justice, as in the times of the earls of Holland, who were sovereign lords.Pursuant to this our earls, with consent of the states of the land, framed and appointed all the laws or orders over the whole province; and their respective dykegraves, bailiffs and schouts, with their counsellors, homagers, judges, and sheriffs, made all peculiar laws and ordinances for the respective waters in the country, open lands, villages, and cities, and omitted not in their laws to express the punishment and fines which the offender was to suffer or pay. And moreover, our earl had power, with all other earls, as being chief judge himself, or by bailiffs and judges depending on him, and in his name, to give sentence and judgment between the inhabitants. It is observable, that all criminals, who had forfeited their lives, were to forfeit their estates also, and that all confiscations and fines came to the earls, or to the bailiffs and schouts, who for that end held their offices by farm. And to the end that those miserable subjects might undergo trial before the judges that were parties; we are to take notice, that our earls following the ungodly maxims of monarchical government in administring justice, stood much upon the enlarging of their power and profit, and but very little on the welfare of the common people:’Tis shewn how defective and tyrannical it then was. for they empowered these bailiffs and schouts, according to their will and pleasure, to take cognizance of all crimes and offences, whether really committed or not, to favour or prosecute all the inhabitants, without appeal to any but the patron, viz. the earl. And tho it was very necessary for the gentry, common people, and citizens, the better to obtain just sentences, to appoint upon all occasions a very great number of judges, and to give them a liberty, without respect of persons, to vote with balls or otherwise privately: or if few judges were appointed in those courts and places of justice, with command to vote publickly, that then at least those bailiffs, schouts and judges at certain times being complained of, were obliged to give an account of their actions before a very great number of them.By reason of the paucity of judges. Yet our said earls upon all, yea the most weighty occasions, would place no more but here and there an Azing, or five or seven judges in the open country, and about so many sheriffs or aldermen in the cities; obliging them, whether in criminal or civil causes, ever to deliberate or vote openly in presence of the earl, his bailiffs or schouts, and to give no account or reason to any but himself for what they acted.

By which form of justice, the earls and their bailiffs and schouts might favour or oppress all the inhabitants, under pretext of administring that sacred justice to which they were sworn.And their passing sentence as the earls and their bailiffs and schouts pleased. For they could give what sentence they pleased by reason of the paucity of judges, which they were fain to comply with, if they would hold their annual employments, and escape the resentment of their said lords. And when at best the said earls, bailiffs, and schouts did not concern themselves with the matter in question, if one of the parties, whether plaintiff or defendant, were favour’d or hated by the judges, and the other not, then in such case, * an upright sentence was seldom passed.

What little amendment hath been for the publick good since these times, about matters relating to justice.And tho’ since that time, by the abjuration of the government of earls, and especially since the death of the late stadtholder of Holland, the greatest occasion of favour or hatred in respect of judges and sheriffs, and consequently the greatest occasion of unrighteous sentences, either in greater or lesser affairs, was taken away; yet nevertheless the bailiffs and schouts in regard of the common people, and especially in criminal affairs, hold their former power and respect. By which remainder of that tyrannical government by earls, the inhabitants may be very much oppressed upon this account, because the judges and Scheepens being continued in their former small number may be misled, unless we should suppose them to be divested of their human nature, and not to be mov’d by their familiarity with, or hatred of the said bailiffs and schouts, or by the bribes, and love or hatred of the plaintiff or defendant; and because no further appeals, or account is to be given to higher powers at appointed times and places, upon the complaint of any persons thereunto impowered, and likewise because they are not obliged to suffer any punishment in case of error.

But my aim being chiesty at trade, I shall shew,But because I purpose more especially to consider our administration of justice, as it tends to the benefit and increase of our fishery, manufactures, traffick and freight-ships, I shall pass over all these common defects and faults in other matters of justice, and pursue my aim and purpose in this only.

Next to the perfect freedom of the people, and the more or less taxing and favouring the several trades or estates of the people of Holland, it is necessary that justice be equally administred against all open violence which may be acted in the land: which seeing it would be hurtful, not only to the merchants of our manufactures, and fisheries, and traders in foreign commodities, together with the owners of freight-ships, but also to other inhabitants, both subjects and rulers;How detrimental designing bankrupts are, so that no assembly, or body of men whatever, without securing themselves against it, can possibly subsist; there is of antient times an order of justice appointed, tho’ very defective. But tho’ fraud (whereby we may wrong a man of his due as well as by force) ought not to be less punished, and that merchandizing depending especially on the probity of men, yet by false deceit may be perfectly ruined; it is therefore to be wondered at, that Holland hath been able to preserve its traffick, as it must here be carried on with so many laws, or by the help of laws derived from the maxims of the warlike Roman republick, which give the merchants here an opportunity to gain more by fraud than by honest dealing.And how little provision is made against them. And on the other hand, here is so little care taken by good orders and laws to defend the honest merchant against the fraud and deceit of those who bear the name of merchants, and to help them to recover their own; that we may well ask the reason, why all the bad people of foreign countries come not into Holland, that under pretext of merchandizing they may openly learn to cheat in the beneficial way now so much practised, and that with impunity? For, * ’tis the rod makes the children good.What order might be taken to prevent it. Now to establish some better order in this, it would seem needful, that none should be suffered to drive any traffick in Holland, ’till first he hath entered the place of his abode in a publick register, which would have this effect.Which comes in here. First, that the parents and kindred of the said merchant, if they have not made a contrary entry in the same register within a year, shall not be allowed by any last will and testament, to leave to the said merchant a less legacy than without a will they might, to the prejudice of his creditors. Moreover, it shall not be lawful for any merchant, especially a bankrupt, in any case to refuse any profitable bequest or legacy. For this he cannot be supposed to do but in order to defraud his creditors; and for that reason he ought to be prohibited legally to alienate any estate, save for a gainful title, and that he hath receiv’d the value of it beforehand. I understand hereby, that if he happen to be a bankrupt afterwards, all his donations, conveyances and portions given for marriage, or estates bequeathed or consigned to his children, ought to be applied to the benefit of his creditors. For we see here too often the truth of this English proverb, Happy is that son whose father goes to the devil.

And settlements before marriage.And as it ought to be unlawful for a merchant to endow his wife with a marriage jointure to the prejudice of his creditors, so ought the wife to be prohibited to covenant to have her option of part in profit or loss: for there is nothing more rational than that he * who will have the profit, must bear the loss. Yea, the parents, and nearest kindred of such a wife, ought to demean themselves in all things in respect of inheritance, as the relations of the husband himself: and excluding community of estate, or the bringing in of engaged estates, they ought to be entred in the publick register.

The ordinary register or books of accounts of such merchants who are in reputation for honesty, and corroborated by oath, ought in all respects to be equivalent to any notars acts, and nothing ought to be preferred to it except special mortgage; seeing the custom of the country is such, that to prefer orphans, rent, or jointure, &c. to be first paid, is prejudicial to traffick, and consequently to the whole republick. But if at any time it be found that a merchant hath falsified his books or register, and confirmed them by perjury, he ought then in all respects to lose his life as a false coiner, that all men may be terrified by so severe a punishment, not to enrich themselves falsly and treacherously with other mens estates, to the prejudice of the commonwealth.

A debtbook under oath ought to be a sufficient ground for an immediate execution.Yea, it seems to me that traffick, and the accounts of a credible merchant, is of so much concernment, seeing the constitution of the same is such here, that it neither allows or permits of any other evidence: that therefore upon the said register alone confirmed by oath, there ought immediate execution to be taken as for money due to the state. For if traffick is with us salus populi, the country’s safety, what reason can there be of not using the like means (pari passu) as the state doth?

Vindications and evictions.It is also very prejudicial, that a sale should be counted for ready money, when after delivery of the goods the money is not immediately paid. For when the seller gives up his right of the goods by trusting of the buyer, he gives such knavish buyers great opportunities of making great bankrupts: and he who on the other side by his imprudence is in the greatest fault, does afterwards, by his unjust vindication or prosecution for his goods, take away the estate of the other creditors.

Present justice by a court-merchant is very necessary.There ought in each city to be at least one particular court of justice to decide matters between buyer and seller, that so such suits may not only be speedily ended, but that the judges apprehending the way of trading the better, may give or administer the better justice and sound judgment for the land: whereas the merchants now find, that their suits caused by difference in accounts, are almost never ended but by agreement of the parties when they grow weary of the law, and that mostly to the benefit of the unrighteous caviller, according to the proverb, The cavillers are gainers.

But the beneficium inventarii is detrimental, as areIt is very unreasonable and prejudicial to the merchant, that the estate of one deceased should be suffered to have beneficium inventarii, the right of making an inventory of the estate, when the common creditors will become his heirs; * seeing the creditors must bear the loss if the estate falls short of their debts, they ought to reap the profit when there is more: whereas otherwise those unmerciful greedy heirs by that course of justice, in the first case they cast off the burden from their own backs, and in the second case they carry away the profit.

Letters of cession, or attermination.And no less hurtful are letters of cession, or attermination, renouncing the estate, and gaining of time. And since no persons are prosecuted by the publick for particular debts, it is reasonably to be presumed, that the creditors will not prejudice themselves by taking over-rigorous courses with any person that cannot really pay, but is willing to do it; nor to bereave them of their good name, and drive them into extremities. But on the contrary, a dishonest man having concealed and made over his estate, will enrich himself, and seek ease, by delivering up his whole estate upon a false oath.

On the contrary, it would be profitable for the commonwealth, if upon the least complaint of a debtor’s non-payment, they should forthwith make him give in security; or in case of refusal, to keep him and his books of account in close ward. For in case he should then shew himself able to pay, he might soon be released upon security;What severe punishments are necessary against designed bankrupts, viz. to deprive them of their liberty. and being unable, we should be able to prevent his running away, and his giving in a false account of his debts, and his thievish making over and absconding his books and estate. In all such events, it ought to be lawful to imprison knavish debtors, with their wives and adult children, by publick authority, and to keep them in a publick workhouse, to make them earn their own bread, according to the law of Moses, and the Roman laws of the twelve tables.Exod. 22. Yea, and in case the wickedness of eminent and great debtors be aggravated by foul and knavish circumstances, we ought, according to the proclamation of the emperor Charles in the year 1540, to use them as we do thieves for burglary, hang them on a gallows, without suffering in any wise, as now it often happens, that such bankrupts remain dwelling among us, and continue driving their traffick under another’s name; according to the proverb,*Let him pay with his person, that cannot pay with his purse.

But in case the bankrupt be fled with his books and estate, without the jurisdiction and reach of Holland, and is protected by the civil authority of that place; I should think it convenient for the benefit of Holland to proceed thus. First, by virtue of a general law, all such persons ought to be prosecuted as publick betrayers of their country, amounting to as much as† being guilty of high-treason; the rather, seeing such a villainous bankrupt hath no less need of help to carry on his wicked design, than to betray his country: at least he cannot so have concealed matters, but that the accomptants and cashiers, his men-servants and maidservants must have some knowledge of it; and therefore they ought all of them to be apprehended, and if upon examination it were found that they had assisted in conveying away such thievish bankrupts, it were good to examine them upon the rack more strictly if there were cause of suspicion of the thing; or else upon their oaths according to the occasion. For if the rack be of any good use, it must be in cases whereon the prosperity of the country depends, and where it’s known there must be aiders and assisters in such gross knaveries.

And all creditors and debtors ought to be obliged by laws and publications.We might also at the same instant publickly proclaim throughout the whole land, that whosoever hath any estate of, or owes any thing to the person so fled, should immediately discover it, on pain of being punished as betrayers of their country, and concealers of that villany: and all persons should forthwith be examined upon oath who are suspected to know any thing of it; declaring by promise, that all those who shall uprightly purge themselves, should be accounted men of probity, altho’ they had formerly assisted in that wickedness; and if otherwise, they shall at all times be proceeded against and punished as perjured betrayers of their country, when by a third person it shall come to be known.

To bring in all their claims, whether to the benefit or charge of the deficient estate.And all such as claim, and pretend to any thing of the fugitive’s estate, ought also to be oblig’d immediately to lay claim to it upon great penalties, whereby two very great evils would be prevented; for seeing* no man becomes wicked to the highest degree all of a sudden, therefore all such who were lately possessed of the estate of such bankrupts, and consequently had not used or employed it as their own, should immediately bring in the same: the rather, that while the act was fresh, they could not arrive at so exact a knowledge of their estates and books as they might afterwards, by the seizing and examination of the offenders and their associates. And,

2dly, All those that pretend to any thing of the bankrupt’s estate, being also ignorant of what might come to be known of his condition, and whether there were any appearance at any time of compounding with him, should be necessitated to give in their real debts: whereas we see now, that all such estates are grasp’d by dishonest persons in such a manner, that there is seldom any thing left for the honest creditors, because people may conceal all debts with impunity, and on the other side, may enlarge their pretences after they see the matter brought to an issue.

This being done, the bankrupt ought to be summoned on a certain prefix’d day and hour, in which time the creditors ought to have leave absolutely to compound with him, and to stop their proceedings at law. But if the bankrupt neither appears nor agrees, he ought to be hanged in effigie on a gallows, and all his children old and young declared infamous.

By all which means jointly applied, many designed bankrupts would be prevented.If all these particulars could take effect immediately upon the fresh act, and before people could have laid aside the shame of such a new piece of knavery, I judge it would be of great influence to make men honester: whereas now they learn by degrees, that it is better to have other mens estates than none at all; and* that we can spend another man’s estate with much more pleasure than our own. Having overcome all shame, men can live easier and quieter in an infamous condition than to trouble themselves about points of honour, and pay so dear for them too.And likewise better agreements made with fugitive bankrupts. But seeing in all these prosecutions the benefit of the creditors ought to be aimed at, since it is purely an endeavour to make the most of it for them, therefore they ought to be enabled after that time to agree with their creditors, and to annul the sentence; for fiat justitia & pereat mundus, becomes a judge’s mouth very well; for they not being sovereigns, are for the sake of their honour, oath, and office, bound to judge by the laws, and not contrary to them: wherein if they fail, they are in all well-ordered republicks to be complained of, and punished. But the proberb does not at all become wise politicians, where salus populi, and not the peoples ruin, must be the supreme or highest law.

There ought to be given to an honest, tho’ insolvent merchant, a reasonable allowance.And seeing we ought on the one side to compare these fugitives, and base and unworthy cheats, to those vagrant and thievish drones among the bees, which by all means ought to be kept out of the land, or to be pursued and destroyed: so on the contrary we ought to look on all honest merchants, who through want of foresight, by the injustice or breaking of others, by storms, misfortunes, robberies at sea, or war, have lost their own estates, and part of others, and so cannot pay their debts. I say, we ought to regard them as profitable bees with compassion, declaring and promising them, that all such persons, making their losses appear, and not withdrawing themselves from justice, shall reserve, and hold to their own use the tenth part of what they had to begin to trade with at first, and not be troubled at all by their former creditors, and may remain in good name and fame with their children, tho’ they had enjoyed great portions or other gifts, as being a righteous fruit of their uprightness, and a comfort in their adversity. But seeing between these mischievous thieves, and their children, and these unfortunate losers who are much to be lamented, there is no difference either in punishment or infamy, it causeth many who otherwise would be honest, through necessity to step out of the honest way, and to take ill courses. For if opportunity makes a thief, necessity does it much more.

But supposing all useful laws were made for the benefit of traffick and navigation, and the inferior judges were well inclined to cause them to be put in execution, nevertheless as things now go in Holland, they may for the most part be made of none effect by appealing to a higher court.Our courts of justice ought to consist of many counsellors. For as our courts of judicature consist not of above ten or twelve judges, so they cannot hear and give judgment at more than one bench, and much less have their understandings exercised to comprehend all differences that occur, whereby the suits, because of the great number and trouble of them, remain depending there almost to perpetuity, and at last are all of a very uncertain issue. To redress which it were necessary, that the number of judges should be so encreased, that for some particular cases there may be some appointed out of that number, who according to the weightiness of the causes may bring in and report the same in full court, to have sentence pronounced upon them.That might give more dispatch, and pass juster sentences. By these means quicker and better justice would be administred, not only among the commonalty, and especially the merchants; but likewise among all other the more eminent inhabitants, whether secular or ecclesiastic, who might be minded to promote treason or sedition,And might be a terror to all seditious and traiterous persons. would be deterred by so considerable a court, that is accountable to none but their lawful sovereigns, that is, the assembly of the states of Holland and West-Friesland, and would carefully watch against such villanous practices as abovementioned, which now, impunitatis spe, by the length of suits, and slow justice, are but too frequent.

[* ]Tanquam Cæsaris præsidem ejus provinciæ. Annal. Dousæ

[* ]Quia favor aut odium in judice plus valet quam optima lex in codice.

[* ]Oderunt peccare mali (quales omnes natura sumus) formidine pœnæ.

[* ]Quem commoda, eum incommoda sequantur.

[* ]Secundum naturam est commoda cujusque rei eum sequi, quem sequentur incommoda.

[* ]Qui non habet in ære, luat in pelle.

[† ]Læsæ majestatis reos.

[* ]Nemo repentè fit pessimus, aut fuit turpissimus.

[* ]Qu’il n’y a chere, que de gens a l’arriere.