GRAVAMINA MERCATORIS: OR, The Tradesman's Complaint OF THE Abuses in the Execution of the Statutes against BANKRUPTS. Humbly Offered to the Consideration of Both Houses of Parliament.  Rerum Progressus ostendunt multa quae initio praevideri non possunt, Cook Mag. Chart. Fol. 26. By PHIL. PRICE, of Chancery-Lane. 
TRADE and traffic, 
Cook 2 Inst. fol. 28. Mag. Chart. c. 30. Stat. 27. Ed. III. c. 22. Stat. 13 Ed. II c. 1. Stat. 26 Ed. III. c. 7. Cook. 4 Instit. fol. 277. ( which is the livelihood of the Merchant) being the Life and Support of the Commonwealth, wherein the King and every Subject hath an Interest, great Care hath been taken by the Government, in all Times, to encourage, and advance the same; and several Provisions were made by our Ancient Laws, for the Ease and Benefit of Merchants, for the speedy Recovery of their Debts, Cook 2 Instit. Fol. 28.  
It is by the Statute of the 13 Eliz. Cap 7. Enacted, That the Lord Chancellor of England, or Lord Keeper of the Great Seal, for the time being, upon every Complaint made to him in Writing, 
Stat. 13 Eliz. c. 7. Stat. 1. Jac. I. c. 15. Stat. 21 Jac. I. c. 19.  against such Person or Persons being Bankrupts,( as therein is described) shall have full Power and Authority, by Commission under the Great Seal of England, to Name, Assign, and Appoint such Wise, Honest, and Discreet Persons, as to him shall seem Good; who, or the most Part of them, by Virtue of this Act, and of such Commission, shall have full Power and Authority, to take, by their Discretion, such Order and Direction with the Body, Lands, and Goods of the Bankrupt, as therein is directed.  
Who shall he adjudged a Bankrupt, is further declared by the Statute of the 1 Jac. 1. Cap. 15. But most fully, and the Authority of the Commissioners more amply enlarged, by the Statute of 21 Jac. 1. Cap. 19. which are all the Statutes now in force against Bankrupts; and indeed, are more than enough, if there be not good Use made of the Powers and Authorities thereby given; which are the greatest in our Law, next to Life and Member. The Commissioners having Power, by these Statutes, to dispose of the Body, Lands, and Goods of the Subject, at their Discretion; which no Judge of the Land, nor the KING Himself, can do; Nisi per legal Judicium parium svorum, 
Mag. Chart. c. 29. Cook 4 Instit. fol. 278.  vel per Legem Terrae, Mag. Chart. Chap. 29. So that these Commissioners had well need to have the Three Qualities required by these Laws, ( viz.) Wisdom, Honesty, and Discretion.  
All these Statutes were made for the Benefit and Advancement of TRADE; 
Cook 4 Instit. fol. 277. Stat. 25. Ed. III. Stat. 3. c. 23.  And are therefore, in all Things, to be largely and beneficially Construed for the Aid, Help, and Relief of Creditors; who thereby have, or ought to have, a better Remedy, than the Common Law had provided: viz. 

1. A speedy Remedy, in respect of the Delay by Action.  
2. Easier, in respect of the Charge.  
3. Safer and Certain, in respect of the Secrecy; for that the Notice and Delay, which otherwise happened, gave the Bankrupt Opportunity, by secreting Himself, and his Effects, to defeat his Creditors.    
These Laws do not Erect any Office, nor Appoint the Person that shall Draw, engross, and Pass these Commissions, nor any Fee, or Reward for so doing. The Law-Makers well knowing, That New Offices( as the Learned Sir Edward Cook saith) Are under the Pretence of the Common Good, 
Cook 2 Inst. fol. 540.  exercised to the intolerable Grievance of the Subject, which will appear from the present Subject: And therefore, of Right it belongs to the Clerks of the Chancery Office,( whose Business it is, as the Clerks and Attorneys of other Courts do, to dispatch the Business of their Court) to make out these Commissions, for Reasonable Fees, in like Cases allowed.  

madge Chart. c. 29. Cook 2 Inst. fol. 40.  And the Commission ought to be Awarded without Difficulty; for it is not ex Gratia; but the Lord Chancellor, or Lord Keeper, ought to grant the same ex debito Justitiae, upon the Complaint of the Creditors praying the same.  
The Law b●ing so, let us examine the Fact, and from the present practise consider, how far it has Answered the Ends of these Provisions.  
About the Beginning of Car. 2. one John Norden, Esq; obtained the Kings Letters Patent for the Office of Clerk of the Bankrupts; and, by Colour of this New Office, he claimed the Sole Making and Passing, under the Great Seal, all Commissions of Bankrupt, and all Proceedings thereupon; and demanded, and took of the Subject, vast Sums of Money, as Fees due for the same. After his Death, his Son, a Youth, gets a Warrant to renew the Patent; which coming to the Great Seal, in the Time of the late Lord Keeper B. his Lordship, or some for him, who( as well as Others, in these late Times of Disorder and Oppression) loved Gain, finding that Money was to be got by this new-invented Office, quarrelled with the Patent, and insisted, That the Office belonged to him, as Lord Keeper: Whereupon the Youth, whether out of fear of his Title, or of the Greatness of the Person contending it or both, thought best to compound the Matter, and took in with him his Lordship's Kinsman, one Mr. B.( Secretary to the late High Commission Court) into the Patent; to whom the Sole Interest is now accrued by Survivorship.  
The Business to be done,( and which is assumed by this Ups●art-Office) is, To Draw and engross the Petition for the Commission, and to writ and engross the Commission annexed to it, and carry it to the Great Seal and pass it; for which( as he pretends) he pays to the Lord Chancellor, or Lord Keeper's Officers these Fees, viz. To the Secretary for the Fiat, or Grant of the Commission, 12 s. 6 d. To the Clerk of the Hanaper for the Broad Seal, 12 s. 6 d. To the Seal Keeper, 2 s. These claimed as due, besides others, vitiis & modis, which we shall not now inspect into: But this we aver, That what my Lord Cook hath said, to be the consequence of new Offices: viz. That under pretence of Common Good, they are Exercised to the intolerable Grievance of the Subject, is in all things verified in this, even to the defeating of all the ends for which these Laws were made, as will appear by these Instances, among many:  
1. The said Officer hath taken upon him to enter and admit of Caveats, whereby to stop the Commissions, and give Notice to the Bankrupt, to the great delay of the Subject, and the defeating of the very purpose of the said Laws, as by that famous Case( among many,) viz. Dod against Wilkinson. A certain Bankrupt apprehending, that a Commission would be taken out against him, enters a Caveat with the Clerk of this Office, to give him Notice when his Creditors came for a Commission. The Creditors came, and bespoke the Commission, and left a good round Sum in Hand for it, with this Clerk, who soon gives the Bankrupt Notice; who hereupon sets up Sham-Creditors; and for a bigger Sum( besides what was before given for the Caveat) gets the Clerk, to make out a Commission, to Commissioners of his own naming, who make an Assignment to the Sham-Creditors, who thereby swept away all the Bankrupts Estate Six Weeks before the real Creditors could have their Commission out, or knew any thing of the Matter. And all the Remedy they could have, was only an After-game, by an Action against the Clerk.  
[ Many a Bankrupt, by means of these Caveats, has had Opportunity to with-draw Himself, and Estate, to the defrauding of his Creditors, and Ruin of the Subject.]  
2. The said Officer, by colour of his said Office, hath constrained the Subject, before he would deliver to him the said Commission, to enter into a Bond of some great Penalty, to the Lord Chancellor or Lord Keeper for the time being, and to enter into Oaths and Affidavits, contrary to the form of the said Laws.  
3. The said Officer hath extorted and taken of the Subject divers great Sums of Money, as Fees due to him, by colour of his said Office, contrary to Law; viz. 

For the Commission, 6 l. 10 s. or sometimes 8 l. 9 l. and 10 l. or more.  
For every renewed Commission, 4 l. 0. 0. and sometimes more.  
For a Supersedeas, Procedendo, &c. the like Fees, and more.  
For Copies of Depositions, &c. as Register and Examiner, &c. Fees without Stint.  
For Copies of Dockets, Affidavits, Petitions, &c. Fees without Stint.    
Upon the whole matter touching the said Office and Officer; we shall lay down these Conclusions:  
1. That the said Office is a Monopoly, 
Stat. 21 Jac. I. ● 8. Stat. 9 H. III. ● 29. Cook 2 Inst. fol. 7. 63. Cook 3 Inst. fol. 19. 120. c. ●… at. 25 Ed. I. ●tat. 34 Ed. I. Cook 2 Inst. fol. 8. 29.  contrary to Magna Charta, cap. 29. and the Stat. 21 Jac. 1. cap. 3. and the Fundamental Laws of the Land, 2 Instit. fol. 47. 63. And the Officer highly punishable for the same, 3 Instit. Fol. 181, 182.  
2. That the said Officer is liable to a Praemunire, for presuming to exercise an Office, to the prejudice of the Subject, by an Authority foreign to the Laws of the Land; for that, by the Statute of the 25 Edw. 1. and also by the Statute of 34 E 1. called, Statutum de fallagio non concedendo; and other Laws, No new Office with any new Fee, nor any old Office with any new Fee, can be erected, but by Authority of Parliament. Cook 2 Inst. Fol. 532.  
3. That the said Office is forfeited, for taking extortious Fees, contrary to Law, and is liable to Indictments, and highly punishable for the same.  
4. That the said Officer is liable to an Action at the svit of every Subject, for the said Fees and Sums of Money by him extorted from them, as aforesaid.  
Nor have the Abuses in the Execution of the said Laws stopped here; but far greater are and have been daily practised by all that have had any Finger therein, from the Custos clavis regni himself, to the very Porter or Messenger of those Commissioners employed therein, even to the rendering of these Laws themselves a burden and Terror to the People; for the Officers of the Lord Chancellor or Lord Keeper, for the time being, have taken upon them, for lucre of great Fees, or rather Bribes, to admit of Caveats from the Bankrupt and others, to stop the Commission, until he or they are heard, unless a Client that has more understanding in the beating of the Pulse than another, comes and bleeds freely( as they call it) He may have it pass; as it happened about seven years ago, against a Client of mine, upon a Creditor's advancing to the Secretary a round Sum, to the number of twelve Guinea's, the Commission past without difficulty, notwithstanding a Caveat against it. But otherwise References are made, and Counsel on both sides attend, to the grievous Charge of the Subject; insomuch that( as a particular Instance) a Commission of Bankrupt being about ten years ago demanded against one Dethick, and being obstructed by these Caveats, it cost the Creditors in Counsels Fees, and to Officers, and otherwise, above 40 l. and yet were denied a Commission at last, which so incensed some of the Creditors( who were as stout, as his Lordship was haughty) as that they resolved to try at once as well the Authority of the said Office of Bankrupts, as of his Lordship's denying the Commission: Whereupon they got a Commission to be made ready by one of the Clerks of the Chancery, without going to this Officer: They tendered it to his Lordship to be Sealed, which he refusing to do, they prepared a Petition to the Parliament then Sitting, setting forth the Grievance, which they put into the Hands of a Noble Peer, who, out of Kindness to the Chancellor, shew'd him the Petition, which made his Lordship( as high as he was) change his Countenance, and immediately Seal the Commission: And though the Clerk of this Office knew of it( for it was carried with a high hand) yet he never durst try the Legality of his Office, by bringing any Action against them.  
The Chancellor or Keeper never regard the qualities, by the said Laws required in the Commissioners; they are generally put in by the Nomination of the Creditors, or their solicitor; the Commissioners are usually five or seven in Number; whereof three or four always act, and often times all of them; for such as are not feed are apt to take it ill, and will be sure to remember it, when a Quorum cannot be made up without them; who being Practisers of the Law, and mercenary Men, they take 20 s. a piece for their Fees, at every Sitting, and sit not above an hour or two at a time at the business; and that at Taverns, and other public places( scandalous to the Authority they bear) whereby after ten or more Sittings, Warrants, Depositions, Deeds of Assignment, Deeds of dividend, Messengers Fees, Bottles of Wine, Entertainments, Treats, Gifts, Bribes, Rewards, known and unknown, and other Charges defrayed, and all out of the poor Bankrupt's Estate, a great part of it is gone before any Debt is paid: But the greatest Abuses of all, are committed by the Assignees of the Commissioners, in the Sale of the Bankrupt's Estate, which is usually sold for about half the Value: For instance, an Attorney( manager of a Commission against a certain Bankrupt) for a Bribe of 50 l. sold an Estate in Land for 1400 l. which cost the Owner 20 years ago 2100 l. and was really worth at the time of this Sale 2400 l. So that a Man, who before the Commission comes out, can pay 15 s. in the Pound, can now, after all these Pillages, scarce pay 9 s. in the Pound, perhaps not half of what his Estate would before have answered: To enumerate all the Frauds and Abuses that have been practised by colour of these Laws, to the ruin of the Subject, would be as endless, as it is needless to our purpose, the same being notoriously known.  
It remains therefore, that we offer some Method for Redress of the same. And, as previous thereunto, we cannot omit what our Learned Lord Cook saith, 
Cook 2 Inst. fol. 209. 210.  2 Instit. fol. 176. That the Ancient Law of England was ▪ That none having any Office concerning the Administration of Justice, should take any Fee, or Reward of any Subject for the doing of his Office, to the end he might be Free, and at Liberty to do Justice, and not to be Fettered with Golden Fees, as Fetters, to the Suppression and Subversion of Truth and Justice.— Which Rule seems to be grounded upon the Laws Divine, 
Exod. c. 23. v. 8. Deut. 16.19.  Deut. 16.19. A Gift doth blind the Eyes of the Wife, and pervert the Matters of the Righteous.   

POST-SCRIPT.  
WHat's above-mentioned, was Printed and Published about the Year 1688. And, as there is no better Way to avoid all the Inconveniencies therein set forth, than by empowering a Majority of Creditors to Act, instead of the Commissioners of Bankrupt, several Eminent Merchants, and Traders in London, who have experienced the great Detriment, which They, and Others, have suffered for want of such a Law, have Certify'd the same to be very Necessary; as appears by the Testimonial Subscribed by Them, which was Delivered into the House of Lords, with a Bill, entitled, An Act for Relief of Creditors.  
'Tis not doubted, but such, who, under Colour of an Office,( which is a Monopoly, as appears by what has been already said, Pag. 4.) take Considerable sums of Money for Passing and engrossing all Commissions of Bankrupts; and the Commissioners and Clerks, who are concerned in the Execution of the said Commissions; and also, the gaolers, and Keepers of Prisons, who enrich themselves by the Misfortunes of Insolvent Debtors,( from whom they take what they please for Chamber-Rent, besides Considerable Gratifications, for Liberty to be Prisoners at Large) do under-hand, by means of their Friends and Purses, use their utmost Endeavours to join with unmerciful Creditors. to Misrepresent, and hinder the Passing of this Act, for fear the Extraordinary Benefit, which will certainly Redound thereby to the public; May( when experienced) Influence the Parliament to make a Law Perpetual, to the same purpose; there being no Occasion for a Commission of Bankrupt, and of putting the same in Execution against a Debtor, who is willing to discover his Estate to his Creditors, and satisfy them for their Debts, to the utmost of his Capacity; as many Debtors have frequently offered to do, immediately after their Failure, so as they might have their Liberty: And, if this Act Pass, It may be presumed, that Creditors, who have the greatest Share and Interest in the Debtor's Estate, will not give away their Right, without very apparent Reason, that the Debtor deal fairly with them, and that he cannot pay more, or give any greater Satisfaction: And then, sure, they will be Wiser, in accepting some thing for their Debts, while it may be had, without Trouble or Charges; then in hazarding All, or the Greatest Part of it, to be lost, by an expensive and needless Prosecution of Commissions of Bankrupts, only to satisfy the humour of some few Creditors; as it hath often been experienced, whereof many Hundred Instances might be given; but, for Brevity sake, the Three following CASES only, are offered to the Reader's serious Consideration, viz.  

I.  
THE Case of A. B. late Brewer in London; who, about the Year 1680. by reason of Great Losses, was forced to Abscond; Whereupon One of his Creditors Sued out a Commission of Bankrupt against him, tho' against the Consent of his other Creditors,( which were about Twenty in Number) by whose persuasion he delivered up his whole Estate into the Hands of Two of his Creditors, in Trust for all of them; not Reserving above the Value of Five Pounds for himself, besides some few household Goods, in hopes of an Agreement, to have the Liberty to work for his Family; which all his Creditors were willing to Grant him, except One single Creditor, for Two Hundred Pounds: who declared, That rather than take One Hundred Pound for it,( which he might have had out of his Estate delivered up as afore-said) he would give another Hundred Pound, to make Dice of his Bones: And then, by harassing the said Debtor, with Suits of Law, Judgments, and Executions, the Other Creditors, after having paid Contribution-Money towards the Charges of the Commission of Bankrupt, and Proceedings thereupon, never had any thing for their Debts; by reason the Creditor, who first took out the Commission, gathered in all he could possibly get of the Estate, and went there-with into France; leaving the Person, who was Security for him, in the Lurch: Who thereupon retired into Salisbury-Court; where he still remains: So that, the Estate, delivered by the Debtor, as aforesaid,( which amounted to above Twelve Hundred Pounds, and would have made good above Ten Shillings in the Pound to all his Creditors) is totally lost, without any hopes to Recover any Part of it: And the said Debtor, and his Family, hath ever since been exposed to very great Difficulties and Hardships.   

II.  
THE Case of Sir Anthony Bateman's Creditors, is also Remarkable; for, a Composition of Eight Shillings in the Pound being at first offered for their Debts, 'twas Accepted and Subscribed to, by above Two Thirds of his Creditors; having sufficiently satisfied them, there was Estate enough to make good that Offer; and Friends of his, that would have engaged for his Performance, and taken the Estate into their Management: But, by the Obstinacy of a very few Creditors, that Agreement was broken off; and a Commission of Bankrupt being Sued out against him, the Commissioners procceded thereupon: And, after many Years Prosecution, the whole Estate, forcibly brought in,( Contribution-Money and expenses deducted) did not divide Twelve Pence in the Pound to his Creditors.   

III.  
THE Case of the Forths cannot be forgot; where one Woman wilfully Prosecuting a Commission of Bankrupt, contrary to the Minds of the Rest of the Creditors, who would have accepted a Composition of the Estate, then valued at 9000 l. and which might have yielded as much, or more; the same, by means of the Commissioners, and their Assignees, was Reduced to under 3000 l. Value; and this within the Space of One Years Time.    

REASONS Humbly offered to the High Court of Parliament, for an Act to Relieve Creditors.  

I.  
THe Bill now depending, is only for the present time to Relieve many Creditors, by a Majority against a few, who, mistaking the Estate and Condition of their Insolvent Debtors, will not consent to accept of any reasonable agreement, or composition for their Debts, whereby Debtors become desperate, and either transport themselves, with their Effects, beyond Sea, or consume the same in Prisons or secret places, without making any satisfaction to their Creditors, or at least, a great part of the Estate is spent in Suits of Law.   

II.  
'Tis found by experience, That many considerable Traders are become insolvent, by Fire, War, and other unavoidable Misfortunes; and that such Persons seldom break, without having many Creditors, consisting of Traders, Artificers, Handicrafts, and Husbandmen; who for want of speedily having what many be got for their Debts, must also break, and thereby break many others; and they, their Wives and Children, prove burdensome to their Parishes; and become unprofitable, and as it were dead Members of the Common-wealth, as well as their Debtors, and Families, when they have consumed what they had left of their Estates.   

III.  
Tho' oftentimes Debtors have little or nothing left to satisfy their Creditors, yet if their Liberty might be had by a reasonable agreement or composition, some of their Friends and Relations, out of Charity and Compassion to their Misfortunes, and desires to set them up again in the World, would, as it hath been frequently offered, be contented to give something of their own to satisfy the Creditors, which otherwise they will not do; and if they have any Estate to leave to the Debtors, will rather give it from them to others, who have not so much need of it, for fear the Creditors should seize upon it, by virtue of the Statutes against Bankrupts.   

IV.  
Twenty Creditors, sensible of their Debtors Misfortunes, are willing to abate the rigour, and supply the defects of the Law, either by accepting of what Estate the Debtor hath left, or in lieu thereof, to take 5, 10, 15 s. or more, in the Pound, in full satisfaction of their Debts, and thereupon to discharge their Debtor: but two or three unmerciful Creditors, by insisting to have their whole Debts, the rest of the Creditors, who, according to the Rules of Equity and good Conscience, are entitled to a proportionable part of the Debtor's Estate, cannot get any satisfaction for their Debts: For if a Debtor should pay what the two or three Creditors demands,( which cannot be done without apparent Wrong and Injustice to the Twenty, by lessening their Proportions of his Estate) they would certainly be disobliged thereby, and upon that very account refuse to discharge him.   

V.  
If a Debtor be restrained of his Liberty by two or three Creditors, 'tis as bad as if restrained by all his Creditors; for he will not pay some, unless all will agree to discharge him; and then his effects will either lie dead and waste, of if secretly employed by him, cannot well be discovered, and if employed by any other in trust for him, the Trustee hath opportunity to defraud both Creditor and Debtor.   

VI.  
Computing the great Numbers of Persons now in Prison, absconding, and fled with their effects in secret places, or beyond Sea, who would return and make what satisfaction they can to their Creditors to obtain their liberty; it may be modestly reckoned, that Creditors in England will get above a Million of Money into their hands, by the passing of this Act, which otherwise will not be had.   

VII.  
In all, or most trading parts beyond Sea, a majority of Creditors conclude the rest. It is also the practise in England, in the decision of all Controversies, either in Trust or Power, for a majority to govern the lesser part; and the Rule that all Colleges and Companies proceed by, in setting Fines, making Leases, Elections of Members, and all other Matters relating to their several Societies; otherwise the variety of Mens Understandings, and oftener of their Private Interest, would make all Debates of Business endless. And, why should not a majority of Creditors in England conclude the rest?   

VIII.  
And as two Creditors for 100 l. debt, may, without the consent of twenty Creditors, for 2000 l. or more, sue out and prosecute a Commission of Bankrupt against their Debtor, and force all that expect any distribution of what may be recovered of his Estate, to join and contribute to the charge; Why may not twenty Creditors, with much more reason, without the consent of two or three, make a reasonable agreement or composition with the Debtor, and force those two or three to comply therewith, considering how little falls to the shares of such as contribute to Commissions of Bankrupt, when Commissioners and Clerks Fees, and what is given to persons for making discoveries, are deducted?   

IX.  
It cannot be thought, but a majority of Creditors, who have traded with the Debtor, and trusted him, and who are best acquainted with his Circumstances, Estate and Condition, and are interested and entrusted to act, as well for the benefit of others as themselves; and who are restrained by this Act from making any fraudulent agreement or composition, or claiming any Debt which they cannot prove to be really, and bona fide, due to them, will be more frugal and careful, to have a true discovery and distribution of their Debtor's Estate, than Commissioners of Bankrupt will, who oftentimes are employed by the Bankrupt, or some few of his Creditors, whose Debts being privately secured, they, or such as they appoint, are commonly chosen Assignees of the Bankrupt's Estate, and require great Contributions to prosecute the Commission,( which oftentimes is employed to bribe and treat the Commissioners at Taverns, and other places, as 'tis daily practised) of purpose to discourage other Creditors from seeking relief thereby. And by such, or like Practices, the Estate, or the greatest part thereof is preserved for the Bankrupt, and few Creditors get any thing for their Debts.   

X.  
The Case duly considered, and that the Laws against Bankrupts are for a discovery, and equal distribution of the Debtor's Estate, which cannot be done without Suits of Law, Trouble and Charges; and that this Act provides for the same by a Majority of Creditors, without any svit of Law, Trouble, or Charges: It is hoped, that the High Court of Parliament will think it more reasonable, to relieve a Majority, than some few obstinate or unmerciful Creditors, who having plentiful Estates to live on, matter not what become of other Men and their Families: And more especially, considering that this Act is but pro hac 'vice, to supply the present defects of the Execution of the Laws against Bankrupts, and hath no retrospect; and that the Lord Chancellor, Lord Keeper, or Commissioners of the Great Seal, for the time being, is, and are to be Judges, if any complaint be made by any Creditor, of any Partiality or Injustice done by the compounding Creditors.  
There are several Debtors, who having, before their Failure,( as it is often practised in such Cases) made over some Considerable Part of their Estates to other Persons, in Trust for their own Use; which, not being willing to discover, are against the Passing of this Act; fearing their Creditors( by Reason of some Clauses therein) should require a Discovery upon the Making of an Agreement, or Composition with them: And, as they dare not appear to Publish their Dislike, for fear of being taken Notice of; yet having Friends and Relations, who are Men of Estates, and of a clear Reputation, they under-hand get them to find Fault with the Bill.   
FINIS.