I believe it might be defended if I should say that I do suppose God has given to all mankind equal gifts and capacities, in that He has given them all souls equally capable; and that the whole difference in mankind proceeds either from accidental difference in the make of their bodies, or from the foolish difference of education.
1. FROM ACCIDENTAL DIFFERENCE IN BODIES. — I would avoid discoursing here of the philosophical position of the soul in the body: but if it be true, as philosophers do affirm, that the understanding and memory is dilated or contracted according to the accidental dimensions of the organ through which it is conveyed, then, though God has given a soul as capable to me as another, yet if I have any natural defect in those parts of the body by which the soul should act, I may have the same soul infused as another man, and yet he be a wise man and I a very fool. For example, if a child naturally have a defect in the organ of hearing, so that he could never distinguish any sound, that child shall never be able to speak or read, though it have a soul capable of all the accomplishments in the world. The brain is the centre of the soul’s actings, where all the distinguishing faculties of it reside; and it is observable, a man who has a narrow contracted head, in which there is not room for the due and necessary operations of nature by the brain, is never a man of very great judgment; and that proverb, “A great head and little wit,” is not meant by nature, but is a reproof upon sloth; as if one should, by way of wonder say, “Fie, fie, you that have a great head have but little wit; that’s strange! that must certainly be your own fault.” From this notion I do believe there is a great matter in the breed of men and women; not that wise men shall always get wise children: but I believe strong and healthy bodies have the wisest children; and sickly, weakly bodies affect the wits as well as the bodies of their children. We are easily persuaded to believe this in the breeds of horses, cocks, dogs, and other creatures; and I believe it is as visible in men.
But to come closer to the business; the great distinguishing difference which is seen in the world between men and women is in their education; and this is manifested by comparing it with the difference between one man or woman and another.
And herein it is that I take upon me to make such a bold assertion, that all the world are mistaken in their practice about women: for I cannot think that God Almighty ever made them so delicate, so glorious creatures, and furnished them with such charms, so agreeable and so delightful to mankind, with souls capable of the same accomplishments with men, and all to be only stewards of our houses, cooks, and slaves.
Not that I am for exalting the female government in the least: but, in short, I would have men take women for companions, and educate them to be fit for it. A woman of sense and breeding will scorn as much to encroach upon the prerogative of the man as a man of sense will scorn to oppress the weakness of the woman. But if the women’s souls were refined and improved by teaching, that word would be lost; to say, “the weakness of the sex,” as to judgment, would be nonsense; for ignorance and folly would be no more to be found among women than men. I remember a passage which I heard from a very fine woman; she had wit and capacity enough, an extraordinary shape and face, and a great fortune, but had been cloistered up all her time, and, for fear of being stolen, had not had the liberty of being taught the common necessary knowledge of women’s affairs; and when she came to converse in the world her natural wit made her so sensible of the want of education that she gave this short reflection on herself:
“I am ashamed to talk with my very maids,” says she, “for I don’t know when they do right or wrong: I had more need go to school than be married.”
I need not enlarge on the loss the defect of education is to the sex, nor argue the benefit of the contrary practice; it is a thing will be more easily granted than remedied: this chapter is but an essay at the thing, and I refer the practice to those happy days, if ever they shall be, when men shall be wise enough to mend it.
Of a Court Merchant.
I ask pardon of the learned gentlemen of the long robe if I do them any wrong in this chapter, having no design to affront them when I say that in matters of debate among merchants, when they come to be argued by lawyers at the bar, they are strangely handled. I myself have heard very famous lawyers make sorry work of a cause between the merchant and his factor; and when they come to argue about exchanges, discounts, protests, demurrages, charter-parties, freights, port-charges, assurances, barratries, bottomries, accounts current, accounts in commission, and accounts in company, and the like, the solicitor has not been able to draw a brief, nor the counsel to understand it. Never was young parson more put to it to make out his text when he is got into the pulpit without his notes than I have seen a counsel at the bar when he would make out a cause between two merchants. And I remember a pretty history of a particular case, by way of instance, when two merchants, contending about a long factorage account, that had all the niceties of merchandising in it, and labouring on both sides to instruct their counsel, and to put them in when they were out, at last they found them make such ridiculous stuff of it that they both threw up the cause and agreed to a reference, which reference in one week, without any charge, ended all the dispute, which they had spent a great deal of money in before to no purpose.
Nay, the very judges themselves (no reflection upon their learning) have been very much at a loss in giving instructions to a jury, and juries much more to understand them; for, when all is done, juries, which are not always, nor often indeed, of the wisest men, are, to be sure, in umpires in causes so nice that the very lawyer and judge can hardly understand them.
The affairs of merchants are accompanied with such variety of circumstances, such new and unusual contingencies, which change and differ in every age, with a multitude of niceties and punctilios (and those, again, altering as the customs and usages of countries and states do alter), that it has been found impracticable to make any laws that could extend to all cases. And our law itself does tacitly acknowledge its own imperfection in this case, by allowing the custom of merchants to pass as a kind of law in cases of difficulty.
Wherefore it seems to me a most natural proceeding that such affairs should be heard before, and judged by, such as by known experience and long practice in the customs and usages of foreign negotiation are of course the most capable to determine the same.
Besides the reasonableness of the argument there are some cases in our laws in which it is impossible for a plaintiff to make out his case, or a defendant to make out his plea; as, in particular, when his proofs are beyond seas (for no protests, certifications, or procurations are allowed in our courts as evidence); and the damages are infinite and irretrievable by any of the proceedings of our laws.
For the answering all these circumstances, a court might be erected by authority of Parliament, to be composed of six judges commissioners, who should have power to hear and decide as a court of equity, under the title of a “Court Merchant.”
The proceedings of this court should be short, the trials speedy, the fees easy, that every man might have immediate remedy where wrong is done. For in trials at law about merchants’ affairs the circumstances of the case are often such as the long proceedings of courts of equity are more pernicious than in other cases; because the matters to which they are generally relating are under greater contingencies than in other cases, as effects in hands abroad, which want orders, ships, and seamen lying at demurrage and in pay, and the like.
These six judges should be chosen of the most eminent merchants of the kingdom, to reside in London, and to have power by commission to summon a council of merchants, who should decide all cases on the hearing, of both parties, with appeal to the said judges.
Also to delegate by commission petty councils of merchants in the most considerable ports of the kingdom for the same purpose.
The six judges themselves to be only judges of appeal; all trials to be heard before the council of merchants by methods and proceedings singular and concise.
The council