due unto them for the half Subsidy and also the Algier Duty of Forraign Goods formerly Exported now due and unpaid The Duties and Sums of Money appointed to be paid by the Act of Tonnage and Poundage passed this Parliament and by the Book of Rates therein mentioned and no other shall be paid to his Majesties Officers during the continuance of the said Act upon Goods imported and exported any Law Statute or Usage to the contrary notwithstanding Nevertheless the duty of Prizage and Butlerage and the duty of 12 d. of every Chaldron of Sea-Coal exported from Newcastle upon Tyne to any other Port or Ports of this Realm shall be continued XXVII If any Merchant Denizen born shall happen to have his Goods and Merchandize taken by Enemies or Pyrats at Sea or perished in any Ship or Ships the duties being either pâ—…id or agreed for upon due proof thereof may ship out of the same Port the like quantity as shall amount unto the Custome without paying of any thing for the same If the Importer shall pay ready money he shall be allowed 10 per Cent. for so much as he shall pay down XXVIII Ships of Warr may be entred and searched for prohibited and uncustomed Goods and to bring them a shoar to the Kings Ware-houses and the Commissioners or Head Officers may leave aboard Officers to look after them that none be unladen or imbezelled on pain of forfeiturc of 100 l. And if Goods are concealed a shipboard after such time as the Ship is cleared to forfeit 100 l and then any with a Writ of Assistance out of the Court of Exchequer to go in the day time to any place and enter and seize Goods conveyed secretly into Ships and carried away without paying the Subsidy and Duties the Owners and Proprieters forfeit the double value except Coals which only forfeit the double Custome and Duty XXIX There are allowances to be given Merchants for defective and damag'd Goods of 5 per Cent. on all Goods imported and 12 per Cent. on all Wines to be allowed upon debentures but if they shall ship out less then is in the Certificate then the Goods therein mentioned or the value thereof shall be forfeited and the Owner or Merchant shall lose the benefit of receiving back any of the Subsidy and Goods shipped out are not to be landed again in England on pain of forfeiture of those Goods All Goods coming out of or carried into Scotland by Land shall pass thorough Berwick or Carlisle and pay Customes as others on pain of forfeiture And although that by this Act there are many allowances to be made especially Merchants Denizens yet the Parliament have ever been so careful as to bound the same that is it shall be to such who Trafick in Ships which are indeed the Bul work of this Isle and therefore if such Merchandize shall be Transported out in any Gally or Carrack they are obliged to pay all manner of Customs and all manner of Subsidies as any Alien but in regard that Herring and Fish are and have been accounted one of the principal Commodities and generally finds a vent or Market in those Kingdoms and Countries that usually imploy such sort of Vessels those Commodities may be Transported in them as well as Ships from any Port or Harbour within this Realm without paying any Subsidy or poundage for the same but then such Fish must be taken by the Natives of the Kingdom and Transported by them otherwise to pay as Aliens And whereas all manner of Woollen Cloaths as well White as Coloured unrowed unbarbed and unshorne and not fully dressed are prohibited by Law to be Transported His Majesty was gratiously pleased to Grant unto Frances Countess of Portland as well for her Alliance in blood as also for the many Crosses and Calamities which she hath suffered by the loss and Death of her nearest Relations in his Majesty and his Royal Fathers Service full power for one and thirty years to Licence the Transporting of such goods Non obstante such prohibitory Laws the which is now put in Execution by agreement and Composition with her Deputies at the Custome House CHAP. XVI Of the Right of Passage of imposing on the Persons and Goods of Strangers for passage thorough the Seas I. Of the Right of harmless Utility excepted tacitly in the primitive dominion of things II. Where Passage ought to be open and where the same might be implicitly provided for in the first institution of Property and under what Cautions III. Of the same right as in reference to Goods and Merchandize IV. If Passage admitted whether Tribute or Toll may be imposed V. Where Imposition may lawfully be laid and for what causes And of the Kings Prerogative in that Point I. HAving in the foregoing Three Chapters observed somewhat of Customes and Impositions laid de facto within the Realm and that by Acts of Parliament or the consent of the Three Estates it may not seem amiss to enquire what Imposition the King of his Prerogative may impose on Strangers and their Goods passing thorough his Territories and Seas and in that to enquire of the same as in reference to Persons and Goods Beside the right of necessity which seems to be excepted in the first Institution of Dominion there is another Relique of old Communion namely the Right of harmless Utility For why should not one saith Cicero when without his own detriment he may communicate to another in those things that are profitable to the Receiver and to the Giver not chargeable Therefore Seneca saith it cannot be called a benefit to give leave to another to light his Fire by yours We read in Plutarch it is not lawful to spoyl our Victuals when we have more then enough nor to stop nor hide a Fountain when we have drunk our fill nor to abolish the Way marks either by Sea or Land which have been useful to us So a River as a River is proper to that Prince or that Lord or that People within whose Dominion or Royalty it runs and they may make a Mill on it unless it be Common as a High-way and may take what Fish the River yields but the same River as a running Water remained common as to drinking or drawing of it notwithstanding as to the Fishing and the like it may be peculiar II. Again Lands Rivers nay if any part of the Sea be come into the Dominion or Property of any People it ought to be open to those that have need of Passage for just causes namely being expelled by force out of their own Country they seek void places or because they desire Commerce with remote Nations The reason here is the same which hath been mentioned elsewhere because Dominion might be introduced with a reception of such use which profits these and hurts not those and therefore the Authors of Dominion are to be supposed willing rather to have it so then that such
by purchase by his own Contract that which he cannot retain against the King yet the Law will not enable him by an Act of its own to transfer by hereditary descent the Alien dying his issue a Denizon born the Land will not descend or to take by an Act in Law for the Law Quae nihil facit frustra will not give him an inheritance or free-hold by an Act in Law for he cannot keep it Therefore the Law will not give him 1. By discent 2. By courtesey 3. By Dower 4. By Guardianship And in respect of that incapacity he ressembles a Person Attaint but with this difference The Law looks upon a Person attaint as one that it takes notice of and therefore the eldest Son attainted over-living the Father though he shall not take by descent in respect of his disability yet he shall hinder the descent to the younger But if the eldest Son be an Alien the Law takes no notice of him and therefore as he shall not take by descent so he shall not impede the descent to the yonger Brother As for instance if there be three Brothers the eldest an Alien the other two naturalized and the middle Brother purchase and dyes without issue the younger Brother shall have the Lands III. Concerning the Rules of descents we are not to govern our selves therein by the general notions of love or proximity of nature but by the municipal Ltws of the Countrey wherein the question ariseth for the various Laws of divers Countreys have variously disposed the manner of descents even in the same line and degree of proximity For instance the Father certainly is as near of kin to the Son as the Son is to the Father and is nearer in proximity than a Brother and therefore shall he preferred as next of kin in administration to the Sons Estate According to the Jews for want of issue of the Son the Father succeeds excluding the Brothers and that hath been the use and construction of the Jewish Doctors upon numb 27. 9. but the Mother was wholly excluded 2. According to the provision of the Greeks for the succession or exclusion of the Father is left doubtful 3. By the Roman or Civil Law according to the estimation of the twelve Tables the Father succeeded in the purchase of the Son for want of issue of the Son under the title proximit agnato and so was the use but my Lord Cook supposes the contrary But taking the whole Institution of Justinian the Son dying without issue his Brothers Sisters Father or Mother do succeed him as well to Land as goods in a kind of Copercenary 4. According to the Laws of Normandy which in some things have a cognition with our Law his Brothers are preferred before the Father if the Son dye issueless but his Father before his Uncle 5. According to the Laws of England the Son dying sans issue or Brothers or Sisters the Father cannot succeed but it descends to the Uncle IV. There be two kinds of descents according to the Common Laws of this Realm 1. Lineal from the Father or Grand-father to Son or Grand-son 2. Collateral or transversed as from Brother to Sister Uncle to Nephew and e converso And both these again of two sorts 1. Immediate as in lineals from Father to Son 2. Mediate as in lineals from Grand-father to Grand-child where the Father dying in the life time of the Grand-father is the medium differens of the descent Collateral as in lineal from Uncle to Nephew or e converso And this meditae descent or meditate Ancestor though to many purposes it be immediate for the Father dying in the life of the Grand-father the Son succeeds in point of descent in the Lands immediately to the Grand-father and in a writ of Entry shall be supposed to be in by the Grand-father and not in the post cui This is called a mediate descent because the Father is the medium through whom the Son derives his title to the Grand-father In immediate descents there can be no impediment but what arises in the parties themselves For instance the Father seized of Lands the impediment that hinders the descent must be in the Father or Son as if either of them attaint or an Alien In mediate descents a disability of being an Alien or Attaint in him that is called the medius antecessor will disable a Person to take by descent though he himself have no such disability In lineal descents if the Father be Attaint or an Alien and hath issue a Denizon born and dye in the life time of the Grand-father the Grand-father dyes seized the Son shall not take but the Land shall escheat In Collateral descents A. and B. brothers A. is an Alien or attaint has issue C. a Denizon born B. purchases Lands and dyes without issue C. shall not inherit because A. which was the medius antecessor or medium differens is uncapable V. But in any descents the impediment in an Ancestor that is not medius antecessor from whom and to whom will not impede the discent As for instance the Grand-father and Grand-mother both Aliens or attaint of Treason have issue the Father a Denizon who hath issue the Son a natural born subject the Father purchases Lands and dyes the Son shall be Heir to the Father notwithstanding the disability of the Grand-father and yet all the blood which the Father hath is derived from his disabled Parents for they are not medii antecessores between the Father and the Son but paramont The Law does not hinder but that an Alien is of the same degree and relation of consanguinity as natural born Subjects or Denizons born the Son Father and Brother though Aliens the Son Father and Brother our Law takes notice of as well as natural born Subjects and so it was adjudged for he shall be preferred in Administration though an Alien as next of Kin. But in cases of Inheritance the Law takes no notice of him and therefore as he shall not take by descent so he shall not impede the descent to the younger Brother As for instance A an Alien B. and C. naturalized by Act of Parliament brothers B. purchases Lands and dyes sine prole C. shall inherit and not A. A. an Alien B. and C. his Brothers both naturalized by Act of Parliament B. purchases Lands and dâ—…es wâ—…th out issue the same shall not come to A nor to his issue though a Denizon but shall come to C. and his issue the Law taking no notice of A. as to impede the succession of C. or his issue though it work a consequential disability to bar the issue of A. parallel to what the Law calls corruption of blood which is a consequent of Attainder VI. Again in lineal descents if there be a Grandfather natural born Subject Father an Alien Son natural born subject the Father is made Denizon he shall not inherit the
not Aliens Scotland is a Kingdom by union and therefore those that were born in Scotland under the allegiance of the King as of his Kingdom of Scotland before the Crown came united were Aliens born and such plea against such Persons was a good plea but those that were born since the Crown of England descended to King James are not Aliens for they were born sub side legiantia Domini Regis so those that are born at this day in Uirginia New England Barbadoes Jamaiâ—…a or any other of his Majesties Plantations and Dominions are natural born Subjects and not Aliens so likewise those that are born upon the King of England's Seas are not Aliens X. But if an Alien be made an Abbot Prior Bishop or Dean the plea of an Alien we shall not disable him to to bring any real or mixt action concerning the possessions that he hold in his politique capacity because the same is brought in auter droit The like Law is for an Executor or Administrator because the recovery is to anothers use If an action is brought against an Alien and there is a Verdict and Judgment against him yet he may bring a writ of Error and be plaintif there and that such plea is not good in that case Though an Alien may purchase and take that which he cannot keep nor retain yet the Law hath provided a mean of enquiry before he can be devested of the same for until Office be found the free-hold is in him And this Office which is to gain to the King a Fee or Free-hold must be under the Great Seal of England for a Commission under the Exchequer Seal is not sufficient to entitle the King to the Lands of an Alien born for the Commission is that which gives a title to the King for before that the King hath no title but in cases of Treason there upon Attainder the Lands are in the King without Office and in that case to inform the Court a Commission may go out under the Echequer Seal XI If an Alien and a Subject born purchase Lands to them and to their Heirs they are joint tenants and shall join in Assize and the Survivor shall hold place till Office found By the finding of this Office the party is out of possession if the same be of Houses or Lands or such things as do lye in livery but of Rents Common advowsons and other Inheritances incorporeal which lye in grant the Alien is not out of possession be they appendant or in gross therefore if an Information or an Action be brought for the same the party may traverse the Office in that Court where the Action or Information is brought for the King And if the King obtains not the possession within the year after the Office found he cannot seize without a scire facias It is not for the Honour of the King an Alien purchasing of a Copyhold to seize the same for that the same is a base tenure and so it was adjudged where a Copy-hold was surrendred to J. S. in trust that one Holland an Alien should take the profits thereof to his own use and benefit upon an Inquisition taken it was adjudged the same was void and should be quashed because the King cannot be entitled to the Copyhold Lands of an Alien nor to the use of Copyhold Lands as the principal case was An Alien Infant under the age of 21 years cannot be a Merchant Trader within this Realm nor can he enter any goods in his own name at the Custom-house If an Englishman shall go beyond the Seas and shall there become a sworn Subject to any Forraign Prince or State he shall be look'd upon in the nature of an Alien and shall pay such Impositions as Aliens if he comes and lives in England again he shall be restored to his liberties An Alien is robbed and then he makes his Executor and dyes and afterwards the goods are waift the Lord of the Franchise shall not have them but the Executors Vide Stat. 13. E. 4. All personal actions he may sue as on a Bond so likewise for words for the Common Law according to the Laws of Nations protects Trade and Traffique and not to have the benefit of the Law in such cases is to deny Trade CHAP. III. Of Naturalization and Denization I. Whether the Kings of England can naturalize without Act of Parliament II. What operation Naturalization hath in reference to remove the disability arising from themselves III. What operation naturalization hath as in reference to remove deffects arising from a lineal or collateral Ancestor IV. A Kingdom conquered and united to the Crown of England whether by granting them a power to make Laws can implicitely create in them such a Soveraignty as to impose on the Realm of England V. Of Persons naturalized by a Kingdom dependant whether capable of imposing on one that is absolute VI. Of Kingdoms obtained by conquest how the Empire of the same is acquired and how the Conqueror succeeds VII Ireland what condition it was accounted before the Conquest as in reference to the Natives of the same and whether by making it a Kingdom they can create a Forraigner as a natural born subject of England VIII Of Aliens as in reference to the transmission of their Goods Chattels by the Laws of France IX Of the Priviledges the Kings of England of old claimed in the Estates of Jews dying comorant here and how the same at this day stands X. Of Persons born in places annexed or claimed by the Crown of England how esteemed by the Laws of the same XI Of Denization and what operation it hath according to the Laws of England XII Where an Alien is capable of Dower by the Laws of England and where not and of the total incapacity of a Jew XIII Whether a Denizon is capable of the creation and retention of Honour by the Laws of England I. THe Father and the Mother are the fountain of the blood natural and as it is that that makes their Issue Sons or Daughters so it is that that makes them Brothers and Sisters but it is the civil qualifications of the blood that makes them inheritable one to the other and capable of enjoying the immunities and priviledges of the Kingdom but that is from another fountain viz. The Law of the Land which finding them legitimate doth transplant them into the Civil rights of the Land by an Act called Naturalization which does superinduce and cloath that natural consanguinity with a Civil hereditary quality whereby they are enabled not only to inherit each other but also to enjoy all the immunities and priviledges that meer natural born Subjects may or can challenge II. According to the Laws of Normandy the Prince might naturalize but such naturalization could not divest the descent already vested But according to our Law by no way but by Act of Parliament and that cures the defect as
President which governs in their name at Banda they have a Fort for a retreat where they must deliver them the Spices at a certain price in Trinate they have another a mile distant of that of the Portugales at Magniene they have three at Motire one at Gilele they have taken that which the Portugales have built and indeed whatsoever either can or may consist with their interest in those parts they have engrossed and by that means almost the Trade of the whole Spices of the East VI. So likewise the Most Christian King hath within few years established such another Trading to those Eastern Parts And in England we have several others as that of trading to Turkey that of Affrica to Guiny and several others dividing the several Trades according to the Coasts and Places where they are appointed forbidding them to intrench or incroach on each other so likewise to all other his Majesties Subjects on severe penalties VII Now it is not the dividing of the Trade into Companies that can answer the expectation but it is the dividing the Trade into Companies where the Places may bear it as that to the Indies Turkey Hambourough and some others But to some others as the Canaries France or any of those Places on this side the Line it has been conceived the Trade will not bear it but the same would be better distributed either into the Trade of voluntary Associations or single Traders others perhaps would result into Monopolies if incorporated however the Standard rule is to know whether the Trade of the Place will bear a Company or not VIII Merchants in England were alwayes favourably provided for by the Common Law of this Kingdom By the Ancient Laws of King Alfred it was provided Defer due fuit que nul Merchant Alien ne hantaâ—…t Angleterre forsque aur quater Foires ne que nul demeurast in la terre outer quarante Iours Mercatorum navigia vel inimicorum quidem quaecunque ex alto nullis jactata tempestatibus in portum aliquem invehentur tranquilla pace fruuntor quin etiam si maris acta fluctibus ad domicilium aliquod illustre ac pacis beneficio donatum navis appulerit inimica atque istuc nautae confugerint ipsi res illorum omnes angusta pace potiuntor IX Again by the Grand Charter of our Liberties they are provided for in these words Omnes Mercatores nisi publice antea prohibiti fuerint habeant salvum securum conductum exire de Anglia venire in Angliam morari ire per Angliam tam per terram quam per aquam ad emendum vel vendendum sine omnibus malis tolentis per antiquas rectas consuetudines praeterquam in tempore guerrae Et sint de terra contra nos guerrina tales inveniantur in terra nostra in principio guerrae attachiantur sine damno corporum suorum vel rerum donec sciatur a nobis vel a Capitali Justitiario nostro quomodo Mercatores terrae nostrae tractantur qui nunc inveniantur in terra illa contra nos guerrina Et si nostri salvi sint ibi alii salvi sint in terra nostra 1. By which it is declared that all Merchant Strangers might be publiquely prohibited to Trade into this Realm be they in Amity or otherwise 2. All Merchant Strangers in Amity except such as be so publiquely prohibited shall have safe and sure conduct in seven things 1. To depart out of England 2. To come into 3. To tarry in 4. By Water and Land to go in and thorough 5. To buy and sell  6. Without any manner of evils Tolls  7. By old and rightful Customs  X. But concerning such Merchant Strangers whose Prince is in War with the Crown of England if they are found within the Realm at the beginning of the War they shall be attached with a Priviledge and limitation i. e. without harm of Body or Goods with this limitation until it be known to the King or his Chief Justice how Merchants of England are used and intreated in their Countrey and accordingly they shall be used in England the same being jus Beli. But for Merchant Strangers that come into the Realm after War begun they may be dealt withal as open Enemies It being the Pollicy of England ever to entertain Merchant Strangers fairly in the 18. year of Ed. 1. in the Parliament Roll it is contained thus Cives London peâ—…unt quod alienigenae Mercatores expellantur a Civitate quia dicantur ad depauperationem Civium c. Responsio Rex intendit quod Mercatores extranei sunt idonei utiles magnatibus c. non habet Concilium cos expellendi However though great Immunities were granted them yet they alwayes found Sureties that they should not carry out the Merchandize which they brought in XI And at this day if they bring in any Merchandize into the Realm and sell the same for Moneys they are to bestow the same upon other Merchandizes of England without carrying of any Gold or Silver in coin plate or mass out on forfeiture the principal reason of this was as well to preserve and keep the Gold and Silver within the Realm as for the encrease of the Manufactures and the same at this day extends as well to Denizons so made by Letters Patents as Strangers however he may use the same in payment to the Kings Leige People without incurring the penalty of the Statute of 4 H. 4. but yet in strictness of Law ought not to receive any Gold in payment XII All Merchant Strangers that shall be made Denizons either by the Kings Letters Patents or by Act of Parliament must pay for their Merchandize like Custom and Subsidy as they ought or should pay before they were made Denizons XIII Every one that buys and sells is not from thence to be denominated a Merchant but only he who trafiques in the way of Commerce by importation or exportation or otherwise in the way of Emption vendition Barter permutation or exchange and which makes it his living to buy and sell and that by a continued assiduity or frequent negotiation in the mystery of merchandizing But those that buy Goods to reduce them by their own art or industry into other forms then formerly they were of are properly called Artificers not Merchants Not but Merchants may and do alter Commodities after they have bought them for the more expedite Sale of them but that renders them nor Artiâ—…rs but the same is part of the mystery of Mâ—…ts But Perâ—…â—…ying Commodities though theâ—… alâ—… not the form yet if they are such as â—…ell the 〈◊〉 at â—…ure dayes of payment for greater priâ—… then 〈◊〉 〈◊〉 them they are not properly called Merchants 〈◊〉 are 〈◊〉 thâ—… they 〈◊〉 〈◊〉 other names as Ware-House Keepers and the like but Banckers and such as deal by Exchange are properly called Merchants XIV
there is no Nation in the World more tender and jealous of their honour then the English so none more impatiently tollerate the diminution thereof Hence it was that in all Treaties before almost any thing other was assertained the Dominion of the Sea and stricking the Top-fail was alwaies first provided for In the Year 1653 after the Dutch had measured the length of their Swords with those of this Nation and being sensible of the odds and having by their four Embassadours most humbly besought Peace this very Duty of the Flagg was demanded by the 15th Article in these words That the Ships and Uessels of the said United Provinces as well Men of War as others he they in single Ships or in Fleets meeting at Sea with any of the Ships of this State of England or in their service and wearing the Flagg shall strike the Flagg and lower their Top-sail untill they be passed by and shall likewise submit themselves to be visited if thereto required and perform all other respects due to the said Common Wealth of England to whom the Dominion and Soveraignty of the British Seas belong This was so peremptorily demanded that without the solemn acknowledging of the Soveraignty over the British Seas there was no Peace to be had that as to the acknowledging of the Soveraignty and the Flag they were willing to continue the Antient Custom but that of Visiting was somewhat hard 't is true the latter Clause was by the Usurper waved for reasons standing with his private interest but the first was made absolute by the 13 Article between Him and that Republique and from thence it was transcribed to the 10 Article at White-Hall and afterwards into the 19 Article at Breda and from thence into the 6th Article made last at Westm. and that Clause of searching of each others Ships made reciprocate by the 5 Article made in the Marine Treaty at London but that extends not to Ships of War but only the Ships of Subjects X. By the British Seas in the Article about the Flagg are meant the four Seas and not the Channel only for in the 16 Article they did express what was meant by the British Seas That the Inhabitants and Subjects of the United Provinces map with their Ships and Uessels furnished as Merchant Men fréely use their Navigation sail pass and repass in the Seas of Great Britain and Ireland and the Isles within the same commonly called the British Seas without any wrong or injury to be offered them by the Ships or People of this Common-wealth but on the contrary shall be treated with all love and Friendly offices and may likewise with their Men of War not excéeding such a number as shall be agréed upon sail pass and repass through the said Seas to and from the Countries and Ports beyond them but in case the said States General shall have occasion to pass through the said Seas with a greater number of Men of War they shall give thrée Months notice of their intention to the Common-wealth and obtain their consent for the passing of such a Fléet for preventing of Iealousy and misunderstanding betwixt the States by means thereof The first part of this Article doth plainly set out the extent of the British Seas and that it is not the bare Channel alone that comprehends the same but the four Seas and the same is further explained in the Great Case of Constables where the Dominion of the Queen before the union as to the Seas did extend midway between England and Spain but entirely between England and France for the French never had any right or claim to the British Seas for in the Wars between Edward the First and Philip the Fair all Commerce on both sides being agreed to be free so that to all Merchants whatsoever there should be induciae which were called sufferantia Guerrae and Judges on both sides were appointed to take cognizance of all things done against these Truces and should exercise Judicium secundum Legem Mercatoriam formam sufferantiae it was contained in the first provision of that League that they should defend each others Rights against all others this afterwards occasioned the introducing that Judgement in the same Kings time before those Judges chosen by both the said Princes by the Proctors of the Prelates Nobility and High Admiral of England and all the Cities Towns and Subjects of England c. unto which were joyned the suffrages of the most Maritime Nations as Genoa Catalonia Spain Almain Zeland Holland Freisland Denmark and Norway and divers other Subjects of the Roman Empire against Reginer Grimbald then Admiral of France for that there being Wars between Philip King of France and Guy Earl of Flanders he had taken Merchants upon those Seas in their Voyage to Flanders and despoiled them of their Goods whereas the Kings of England and their Predecessors as they all joyntly do declare and affirm without all controversy beyond the memory of Man have had the Supream Government of the English Seas and the Islands thereof Praesâ—…ribendo scilicet Leges Statuta atque interdicta armorum naviumque alio ac Mercatoriis armamentis instructarum causationes exigendo tutelam praebendo ubicunque opus esset atque alio constituendo quaecunque fuerint necessaria ad pacem jus equitatem conservandam inter omnimodas vates tam exteras quam in Imperio Anglicano comprehensas quae per illud transierint supremam iisdem item fuisse atque esse tutelam merum mixtum Imperium in juredicendo secundam dictas Leges Statuta praescripta interdicta aliisque in rebus quae ad summum Imperium attine in locis adjudicatis By which memorable Record it apparently shewes that the Kings of England have hand istud regimen dominium exclusive of the King of France bordering upon the same Seas and of all other Kings and Princes whatsoever and it was there adjudged that Grimbalds Patent was an usurpation on the King of England's Dominion and he adjudged to make satisfaction or if he proved unable then the King his Master should and that after satisfaction he rendred to punishment And as to the second part of the Articles of giving notice it was but an Act of Common prudence their late unexpected visit which they then gave put the English to some surprise but they facing the Battavian soon made them know that they were as capable of beating them home as they were then daring in coming out and were not to be braved out of a Dominion and Right which their Ancestors had with so much glory acquired and asserted XI By the Article of the Offensive and Defensive League between France and the United Provinces it was agreed That if at any time the Dutch Fleet which were to scoure the French Coasts in the Mediterranean from Pyrats should at any time meet the French the Admiral of the Dutch was to strike his
digni sunt qui Navium detrimentum in aliquibus perficiunt notum esse cupimus quicunque aliquam ex Navibus per quampiam inertiam vel incuriam vell negligentiam corruperit tamen recuperabilis sit is Navis corruptelam vel fracturam ejusdem per solidam prius recuperet Regique deinde eaque pro ejusdem munitionis fractura sibimet pertenent rite persolvat Most certain it is that the Kings of England have in all Ages by their Writs and Patents commanded not only the Admiral but the Wardens of the Cinque Ports and others to arrest and provide Ships of War and other Vessels and impress and provide Masters of Ships Sea Men Mariners and all other necessary Tackle Arms and provisions for Ships for the defense of the Sea and the Realm against forreign Enemies or for transporting of Armies paying their freight if not bound there by tenure as well as to elect and provide all sorts of Souldiers Carpenters and others Officers to be assistants in their several Expeditions But Firshermen or Mariners pressed for the Service are not to be imploy'd as Souldiers but only as Mariners unless it be in casâ—…s of great necessity or bound thereunto by tenure Custom or Covenant And Water-Men that shall withdraw themselves in time of pressing shall suffer a fortnights imprisonment and be prohibited to row on the Thames V. The reason why the Admirals had such power given them was because they being sometimes called Capitanei and Gubernatores Flotarum they had their ordering and Governing of the Ships of War and the raising and fitting up such Ships for the Navies as they thought fit other times called Custodes Maritimarum partium their duty being to provide all Naval provisions as well to supply the Kings Navies occasions as to gratify another of the Kings Friends when distress should constrain them to touch in his Ports that his Subjects might receive the like retaliation again they were called Capitanei Nautarum Marinellorum as in reference for the deciding all differences amongst those in the Kings service and punishing of such as transgressed and as the place was great so the power was large especially in all things belonging to the Navy-Royall in which they had the Supream rule and Government in all things belonging to it He sate formerly in the Kings House and there kept his Court as the French Admirals do at this day at the Marble-Table in the Kings House at Paris It is lawful for every Man to addict and yield up himself to whom he pleaseth as appears both out of the Hebrew Law and Roman Law why then may not any people being at their own dispose give up themselves to their Prince or Soveraign so as to transcribe the right of commanding their aide and help as often as need shall require it is not here inquired what may be presumed in a doubtful case but what may be done in point of right most certain such a power may well be done and that grounded on great reason first if the Common-wealth should happen to be invaded by such a one as seeks not only the subversion of the Government but the destruction of the people and they can find no other way to preserve themselves but that the supream power should be vested with such such a Prerogative as to inforce or presse the Inhabitants to serve in Armes in the defence of the same and the contempt of which to punish or if they should be opprest with want and that supplies of provisions can no waies be had but by compelling another by force to exhibite the common offices of humanity to a Nation in whose Territories a famine rages that the Inhabitants should on such extraordinary occasions be compelled by force to serve in Armes And this Dominion may be obtained several waies either by a voluntary resignation to a Conqueror as they of Capua to the Romanes Our Land the Temples of our Gods all Divine and humane things we yield up into your hands O ye Conscript Fathers again Freedom may be granted to all by a Conqueror except Mariners which should in cases of necessity be excepted or that some Prince who will not suffer any Mariner to go out of his Dominions without subjecting themselves to such a reasonable command and the Majority of Nations on such grounds may abdicate from a part of them the entire Freedom of that member Nor are their examples of this kind wanting the Germans are every one Master of his owne house but are almost on every occasion subject to their Lords especially in their Goods The Irish Cosherers which were reprehendinations when the Chief Lord and his retinue came to his Tenants House and fed upon their provisions till they were spent all being solely at their devotion And as to the Sea the King of Britain may at this day restrain Merchants or Mariners to pass out of the Realm without licence and the various tenures that are introduced which is presumed were since the Conquest were no other but the will of the Conqueror for the right is not measured by the excellency of this or that form but by the will VII And though it hath been conceived by some that the King cannot presse Men to serve in his Wars giving their reason that of old he was to be served either by those that held by tenure those that covenanted by Indenture to provide Men or those who contracted with the Kings Officers for wages and entered into pay or those that were in Prison for the Kings debts but that only extended to those Wars that were by Land not one word in all those acts or Mr. Rolls that any waies mention the least of Mariners and yet what vast Fleets were in those daies but on the other hand it hath been alwaies accustomed to presse such sort of Men for the Naval Expeditions the antient records that mentions such Persons subject to presse by Law is that of 49 E. 3. commonly called The Inquisition of Queenborrough wherein it was expresly in charge amongst others to inquire of those Mariners that were pressed for the Kings Service and deserted the same So likewise by those other Articles translated by Roughton it is expresse in charge to the Jury to present those that being prest to serve brake the Kings Arrest in order to their punishment and in those daies it was esteem'd an high offence and the Oath which the Jury then took being impanelled was this This here see My Lord the Admiral that I Ionathan Nash shall well and truly enquire for our Lord the King and well and truly at this time then serve at this Court of th' Admiralty present at moch as I have acknowleche or may have by information of eny of my fellows of all mane Articles or circunstances that touchen the Court of the Admirate and Law of the Sea the which shall be grate to me at this time and I thereupon sworne or
Sometimes a General Truce holds the place of a Peace as that of a hundred years Such Truces are commonly made betwixt Princes that are equal in Power and will not quit any thing of their Rights by Peace and yet desire to live quietly in the State wherein they are satisfying by this medium the Point of Honour IV. Treaties of Truce are many times less subject to Rupture then a Peace which is made perpetual for Princes or States that find themselves aggrieved with a Treaty that is perpetual seek out plausible reasons to forsake it seeing the grievance cannot be otherwise repaired but if the time be limited and expired they may pursue that which they think ought to be granted and the other may oppose and if they have a desire to continue the Truce there is nothing so easy as to renew it Hence it is become a Maxim in State that seeing Treaties are grounded on the Interests of Princes which change with the time it is necessary to change and settle them at the end of the time or to break them off for it is in vain to trust to a bare Friendship A Truce is likewise made to advance a Peace and to treat it so likewise it is sometimes promoted for the more honest discharge of a League which is made with some other Prince whom they have accustomed to comprehend therein so as a Peace following it or a Truce not being accepted by him they take accasion to leave the League it being not his fault that leaves it that the War was not ended And although it seems that a Truce cannot by its condition prejudice the pretention in the Principal yet it is most certain that if he which is chased out of a contentious State consents that during the Truce the Commerce shall be forbidden to his Subjects he doth wholly stop the gate as Lewis the 12th did in the Truce which he made with Gonsalve after the Conquest of the Realm of Naples In England by the Stat. 2 H. 5. cap. 6. Robbery spoiling breaking of Truces and Safe-Conducts by any of the Kings Liege People and Subjects within England Ireland and Wales or upon the main Sea was adjudged and determined to be High-treason but this branch concerning High-treason is repealed by the Stat. of 20 H. 6. cap. 11. but by the said Act of 2 H. 5. for the better observation of Truces and Safe-Conducts Conservator Induciarum salvorum Regis conductum was raised and appointed in every Port of the Sea by Letters Patents his Office was to enquire of all offences done against the Kings Truces and Safe-Conducts upon the main Sea out of the Counties and out of the liberties of Cinque Ports as Admirals of Custom were used to do Sir John Trebiel was committed to the Tower for taking a French Ship and being brought into Parliament did there justify the same but at last confessed his fault and begged the Kings Pardon generally all Leagues and Safe-Conducts are or ought to be of Record that is they ought to be Inrolled in the Chancery to the end the Subject may know who are in Amity with the King and who not who be Enemies and can have no Action here and who in League and may have Actions personal here Sometimes they have been inrolled in the Wardrobe as being matters of State Note In all Treaties the power of the one party and the other ought to be equal nor are they to be held firm till ratified Before the Statute when any breach of Truces or Leagues happened or was occasioned by the misdemeanours of any of the King of Englands Subjects there did usually issue forth Commissions under the Great Seal of England to enquire of the fringers of the same and to punish and award satisfaction to the injured VI. Princes who neither love nor hate any thing absolutely seem generally inclined to neutrality and in that govern themselves in their Friendships according to their interests and Reasons of State in effect is no other but Reason of Interest Neutrality may be of two sorts the one with Alliance with either part the other without Alliance or so much as the least tie to the one or other which is that which properly may be called Neutrality The first is governed by the Treaty of Neutrality the latter by the Discretion of the Neuter Prince whose carriage ought alwaies to be such as that he may not give the least glimpse of inclining more to one then to another VII The advantages of Neutrality are that the neuter Prince or Republique is honoured and respected of both Parties and by the fear of his declaring against one of them he remains Arbitrator of others Master of himself And as a Neuter neither purchases Friends nor frees himself from Enemies so commonly he proves a prey to the Victor hence it is held more advantage to hazard in a Conquest with a Companion then to remain in a State wherein he is in all probability of being ruined by the one or the other But Princes that are powerful have used generally to preserve a Neutrality for whilst Petty Princes and States ruin themselves by War he fortifies himself with means and in the end may make himself Judge of their differences On the other hand it hath been conceived that Reipubliques that are weak what part soever they take it will be dangerous unto them especially if they are in the midst of two more powerful States then themselves but experience hath made it appear to the contrary that Neutrality is more beneficial to a weak Prince or Reipublique so that they that are at War be not barbarous or inhumane for although a Neutrality does not please either party yet in effect wrongs no Man and as he doth not serve so he does not hurt besides his declaration is reserved till the issue of the War by which means he is not oblidged that by siding with eiher party to gain or loose by the War VIII But if the Neuter be prest by necessity to declare himself he must do it for the most powerful of the two parties following that Roman Maxime That either they must make themselves the strongest or be a friend to the strongest So they of Strasburgh declared for the Empire against the French on the other hand if the Neuter sees that joyning to the weaker will ballance the power of the stronger and by this counterpoize reduce them to reason the same hath been generally followed upon the Maxime That the safety of States consist chiefly in an equal counterpoize of the one and the other for as the greatness and oppulancy of a Prince draws after it the ruin of their Neighbours it is wisdom to prevent it CHAP. X. Of the immunities and Priviledges of Ambassadors and other publique Ministers of State I. Of the Function of Ambassadors and Agents generally II. Of their right and protection by the Laws Divine and of Nations III. Of
him on the face and gave him a push on the back and after this he was Registred for a Freeman This being performed the Servant having his head shaven purposely at that time received a Cap as a Token of Liberty Tertullian observes That at this time of their Manumission the Servants received from their Masters a white Garment a Gold Ring and a new Name added to their former By the Laws of England every Subject Born within the Kings Dominions is a Freeman of this Realm as appears by the Grand Charter Cap. 14. yea though he be a Bond-Slave to a Subject But a Stranger Born is no Free-man till the King have made him a Denizon in whose Power alone without the help of any other one may be made Free To be a Freeman of the Realm the place of Birth is held more considerable than the Quality of the Person Yet by the opinion of Hussey Chief Justice in 1 R. 3. fo 4. And in Calvins Case of the Post Nati it is held for Law That if Ambassadors of this Realm have Children Born in France or else where the Father and Mother being Natural Born Subjects the Children are Free of the Realm of England But if either the Father or the Mother of such Children were an Alien then are not those Children Free But the Law is conceived to be otherwise at this day The Statute de Natis ultra mare 25 E. 3. Cap. declares the Issue Born of an English-man upon an English-woman shall be a Denizon for upon the Construction of this Statute it has been adjudged more than once That if an English-man marry a Foreiner and has Issue by her Born beyond Seas the Issue is a Natural Born Subject IX Disfranchising by the Romans called Capitis diminutio was Three fold Maxima Media Minima the least degree was when the Censors pulled a Man from a higher Tribe down to a lower and less Honourable or when by any Censure they disabled a man from suffraging or giving his Voice in the publick Assemblies such as were thus in the last manner punished were termed Aerarii and in aerarios veluti quia omnia alia jura Civium Romanorum preterquam tributi aeris conferendi amiserunt Gellius relates That P. Scipio Nascica and M. Pompilius being Censors taking a view of the Roman Knights observed one of them to be mounted on a lean starvling Horse himself being exceeding fat whereupon they demanded the Reason why his Horse was so lean himself being so fat his Answer was Quoniam ego inquit me curro statius mens servus By the Ancient Laws of England and by the Great Charter no Freeman shall be taken or Imprisoned but by the Lawful Judgment of his Peers that is by Jury Peers for Peers ordinary Juries for others who are their Peers or by the Law of the Land which is always understood by due process of the Law and not the Law of the Land generally for otherwise that would comprehend Bond-men whom we call Villains who are excluded by the word Liber for such Bond-men might be Imprisoned at the pleasure of his Lord but a Free-man neither could nor can without a just Cause nor does the Priviledge extend to private Actions or Suits between Subject and Subject but even between the Sovereign and the Subject Hence it is that if a Peer of the Realm be Arraigned at the Suit of the King for a Murder he shall be tryed by his Peers that is by the Nobles But if he be appealed of Murder upon the prosecution of a Subject his Tryal shall be by an ordinary Jury of 12 Free-holders and as the Grand Charter did and does protect the Persons of Free-men so likewise their Free-hold For by the same Charter it is declared That the King or His Ministers shall out no man of his Free-hold without reasonable Judgment and so it was rul'd upon a Petition in Parliament setting forth that a Writ under the Privy Seal went to the Guardian of the Great Seal to cause Lands to be seized into the Kings Hands and that thereupon a Writ issued forth to the Escheater to seize against the form of the Great Charter upon debate of which the Party had Judgment to be restored the greatest and most Explanatory Act which succeeded in point of Confirmation was that of Edward the 3d. the words are That no Man of what Estate or Condition soever he be shall be put out of the Lands and Tenements nor taken or imprisoned nor dis-inherited nor put to death without he be brought to answer by due process of the Law that is by the Common Law 2. Diminutio media was an Exilement out of the City without the loss of ones Freedom the words of the Judgment or Sentence were Tibi aquae igni interdico 3. Diminutio maxima was the loss both of the City and the Freedom and by his Judgment or Sentence was obliged and limited to one peculiar Countrey all other places in general being forbidden him There was a Fourth kind of Banishment Disfranchising called relegatio which was the Exilement only for a season as that of Ovid's The Laws of England in this matter have some resemblance with those of the Romans for Bracton observes 4 Distinctions 1. Specialis hoc est interdictio talis Provinciae Civitatis Burgi aut Villae 2. Generalis Interdictio totius Regni aliquando est 3. Temporaria pro duobus tribus quatuor aut pluribus annis aut c. 4. Perpetua pro termino vitae exilium est aliquando ex arbitrio principis sicut in exiliando Duces Hertfordiae Norfolciae per Regem Richardum Secundum aliquando per Judicium Terrae ut fit in Casu Piers de Gaviston etiam in Casu Hugonis de le Spencer Junioris qui ambo fuerunt exilit ' per Judicium in Parliamento So likewise was that of the Banishment of the Earl of Clarendon who dyed beyond the Seas X. Abjuration was also a Legal Exile by the Judgment of the Common Law as also by the Statute Law and in the Statute of Westm the second Cap. 35. He which Ravishes a Ward and cannot render the Ward unmarried or the value of his Marriage must abjure the Realm and this is a General Exile And by the Statute made 31 Ed. 1. Butchers are to be abjured the Town if they offend the Fourth time in selling measled Flesh and this is a Special Banishment A man Exil'd does forfeit these things 1. Hee looseth thereby the Freedom and Liberty of the Nation out of which he is Exiled 2. He forfeits his freedom in the Burrough or City where he was free for he which forfeits the Freedom of the whole Realm forfeits his Freedom in every part 3. The Law accounts him as one dead for his Heir may enter and so may his Wife enter into her own Lands and may sue
an Action as a Feme sole 4. He shall forfeit those Lands which he shall purchase in the Realm during his Banishment for he during his Banishment is as much disabled to purchase as an Alien for fit alienigena by his Banishment and he is observed to be in a worse Condition than an Alien for he is marked with Indignatio principis 'T is true he cannot forfeit neither Title of Honour nor Knighthood nor the Lands he had before Exile unless there be special Sentence or Judgment as that of the Spencers If the Father be in Exile this hinders not the Freedom of the Son for the same is not a thing descendable for should it be so then the Banishmens of the Father would make a Forfeiture of the Freedom but the Son has this Freedom by his own Birth as a Purchase and not by the death of his Father by descent Like the Case where J. S. hath many Children and then he confesseth himself a Villain to J. D. in Court of Record yet his Children formerly Born are Free-men and no Villains the Reason is because they were Free by their own Births but the Inheritance is Inthralled because it is to come to the Heir by descent XI A Free-man of a City or Burrough may be made divers ways as my Lord Cooke observes 1. By Service 2. By Birth by being the Son of a Free-man 3. By Purchase or Redemption At Bristol by Marriage Sir John Davies in his Irish Reports observes the same for Law St. Paul was born at Tarsus in Cicilia which was under the obedience of the Romans by vertue of which he challenged the priviledge of a Roman Citizen but it was accounted no more than a National Freedom like that of Calvin who claimed the general Freedom of an English-man being born in Scotland but under the obedience of the King of England but that Challenge made not St. Paul Free of the Private Customs Priviledges and Franchises of Rome no more than Calvins Birth made him a Free Citizen of London to the particular Customs of that City The King by his Letters Patents cannot make one a Free-man of London yet he may thereby make him a Free-man of his Kingdom If one be Born in a City of Parents that are not Free the Child hereby is no Citizen by Birth and if one be born of Free Parents out of the place of Priviledges as London c. he yet is a Free-man by Birth yet in the Charter Granted to Yarmouth the words were concessimus Burgensibus de magna Yarmutha de Villa praedict ' Oriundis that they should have such and such Liberties So that Special words may alter the Case London had many Royal Franchises granted them from time to time and were often by former Kings successively confirmed nor wanted they a share when the great Charter was granted to have their ancient liberties secured nor were the succeeding Princes slack in their Royal grants and confirmations but especially Richard the Second who in Parliament granted and confirmed to them all their ancient customes and liberties with this clause Licet usi non fuerint vel abusi fuerint and notwithstanding any Statute to the contrary amongst the number of their many Priviledges the freedom of the same was accounted of no small importance since in divers Parliaments it was very much aimed at and endeavoured to be impaired but at last they obtained a most gracious and Royal Confirmation in Parliament of their ancient liberties amongst which it is declared that no Merchant being a Stranger to the Liberty of the said City should sell any Commodities within the Liberty of the said City to other Merchant-Strangers nor that such Merchant-Stranger should buy of anyother Merchant-Stranger such Merchandize within the Liberty of the said City without forfeiture thereof saving that any Person Lord Knight c. may buy within the Liberties of any Merchant-Stranger Merchandizes in gross for their own use so that they do not sell them again to any other And as this City by Custom may pre-clude any Person not being free of the same to sell in such manner upon such pain so any other City which are Burroughs or Cities by prescription within this Realm may have the like Custom and the goods sould or bought by such may be subjected to forfeiture but the same cannot be good by Charter or Grant A compleat Free-man is such a one as hath challenged his freedom and taken the Free-mans Oath and is admitted into the Society and Fellowship of the Free-men Citizens and Burgesses otherwise he hath but a bare right to his freedom CHAP. II. Of Aliens as in relation to their Estates real and personal I. Of an Alien his ability and disability in the taking and enjoying of Estates real and personal II. Of his capacity in purchasing and disability to transfer by an hereditary descent III. Of the rules of descents according to the Laws of several Countreys IV. Of descents according to the rules of the Common Law of England lineal and collateral V. Of Impediments in one that is not the medius antecessor VI. Of Impediments in one that is the medius antecessor lineal and collateral VII Of the Statute of Natis ultra Mare and of issues born beyond the Seas VIII The Lord Cokes opinion that if an Allien has issue two Sons Denizons the one purchases Lands and dyes the other cannot inherit them debated and refuted IX Of Foreign births which do not create a disability X. Of Aliens not disabled by Law to bring either real or personal actions XI Of Office that must entitle the King to an Aliens Estate XII Of some particular immunities and other matters relating to an Alien AN Alien is one born in a strange Countrey under the obedience of a strange Prince and State and out of the legeance of the King of England and can have no real or personal action for or concerning Lands and therefore if he purchase Lands Tenements and Hereditaments to him and his Heirs albeit he can have no Heir yet he is of capacity to take a fee-simple but not to hold for the King upon Office found shall have it by his Prerogative So it is if he purchase Lands and dyes the Law doth cast the free-hold and inheritance upon the King But if he purchase or take a Lease for years of a House or Ware-house which is for the accommodating him as a Merchant-stranger whose Prince or State is in League with ours there he may hold the same for that the same is incident to Commerce And in that case if he departs and relinquishes the Realm the King shall have the same so it is if he be no Merchant The like Law is if he takes a Lease of Meadows Lands Woods or Pastures the King shall have the same for the Law provides him nothing but a habitation to Trade and traffique in as a Merchant II. Though he may take
tongue or Nation whatsoever nor matters it of what sufficiency the Jurors are for the form of the venire facias shall not be altered but the clause of quorum quolibet habeat 4. c. shall be in If both parties are Aliens then the Inquest shall be all English for though the English may be supposed to favour themselves more then Strangers yet when both Parties are Aliens it will be presumed they will favour both alike without any difference IV. If an Alien is party who slips his opportunity and suffers a Trial by all English the same is not a Verdict Erroneous for if he will be so negligent as to slip that advantage which the Law gives him it is his fault for the Alien if he will have the benefit of that Law he must then pray a venire facias per meditatem Linguae at the time of the awarding the venire facias But if a neglect of that opportunity happens yet if he prays it after the awarding a general venire facias the same may be retreeved so as it be before the venire be returned and filed for then he may have a venire facias de novo or otherwise he cannot nor can he afterwards challenge the Array for this cause if it falls out the Juries are all Denizens though Sandford seems to be of a contrary opinion for the Alien must pray it at his peril V. If there be a general venire facias the Defendant cannot pray a decem Tales c. per medietatem Linguae upon this because the Tales ought to pursue the venire facias But if the venire facias be per medietatem Linguae the Tales ought to be per medietatem Linguae as if five Aliens and five Denizens appear on the principal Jury the Plaintif may have a Tales per medietatem but if the Tales be general de Circumstantibus it hath been held good enough for there being no exception taken by the Defendant upon the awarding thereof it shall be intended well awarded If an Alien that lives here under the protection of the King of England and Amity being between both Kings commits Treason he shall by force of the Act of 1. and 2. Ph. and Mary be tryed according to the due course of the Common Law and shall not in that case be tryed per medietatem Linguae But in case of Petit Treason Murder Fellony c. if he prays his Trial per medietatem Linguae the Court ought to grant it Yet if an Information be exhibited against an Alien the Trial is not per medietatem but according to the Common-Law If an Alien in League brings an action if there be cause the Defendant may plead in abatement but if it be an Alien Enemy he may conclude in the action In an action for words the Defendant pleaded not guilty and said he was an Alien born and prayed Trial per medietatem Linguae which was granted and at the nisi prius in London but six English-men and five Aliens appeared and the Plaintif prayed a Tales de Circumstantibus per medietatem Linguae and it was granted so there wanted one Alien and the Record was Ideo Alius Aliegena de Circumstantibus per vic' London ad requisitionem infra nominati Julii Caesaris per mandato Justiciarum de novo apposito cujus nomen panelo praedict ' affilatur secundum formam Statuti in hujusmodi casu nuper editi provise qui quidem Jurato sic de novo appositus viz. Christianus Dethick Alienigena exactus venit ac in Juratam illam simul cum aliis Juratoribus praedicta prius impanellatis Juratis Juratus fuit c. It was found for the Plaintiff and afterwards moved in Arrest of Judgment That no Tales was to be granted de Circumstantibus when the Trial is per medietatem Linguae by the Justices of Nisi prius by the Act of 35 H. 8. because in the Act it is spoken of Free-hold of Jurors and an Alien is not properly said of any Countrey or to have any Free-hold but it was adjudged because the Statute was made for speedy execution that it should be expounded favorably according to the intent and meaning of the Makers of the Act and though in this case the Tales was prayed by the Plaintiff where it ought to have been ad requisitionem defendentis yet that should be taken to be but a misprision and would be amended VI. If the Plaintiff or Defendant be Executor or Administrator though he be an Alien yet the Trial shall be by English because he sueth in Auter droit but if it be averred that the Testator or Intestate was an Alien then it shall be per medietatem Linguae Shely a French man who joyned with Stafford in the Rebellion in the taking of Scarborough Castle in the County of York he being taken was arraigned in the Kings Bench upon an Indictment of Treason and the Indictment was contra legiantiam suam debitam and the Indictment was rul'd to be good although he was no Subject because it was in the time of Peace between the Queen and the French King But if it had been in the time of War then the Party should not have been indicted but ransomed It was likewise rul'd there that the Trial was good although the Venire facias awarded in York was general and not de medietatem Linguae for such Trial per medietatem Linguae does not extend to Treasons 4. Ma. Dyer 145. the Indictment ought to omit the words Naturalem Dominam suam and begin that he intended Treason contra Dominam Reginam c. Hill 36. Eliz. in B. R. Stephano Ferraro d'Games case in Dr. Lopez Treason If an Alien Enemy come into this Realm and be taken in War he cannot be indicted of Treason for the Indictment cannot conclude contra legianeiae suae debitum for he never was in the protection of the King and therefore he shall suffer death by Marshal Law and so it was rul'd in 13 H 7. in Perkin Warbecks case who being an Alien born in Flanders feigned himself to be one of the Sons of King Edward the 4th and invaded the Realm with intent to take upon him the Dignity who had his Judgment and Trial by Martial Law and not by the Common-Law of England VII The Kingdom of Ireland was a Dominion separated and divided from England at the first and came to the Crown of England by Conquest in the time of Henry the Second and the meer Irish were as Aliens Enemies to to the Crown of England and were disabled to bring any action and were out of the protection of the Laws of this Realm and five Scepts of the Irish Nation were only enabled to the Laws of England viz. Oneil de Ultonia O Molloghlin de Media O Connoghor de Connacia O Brian de Tholmonio and Ma Murogh de Lagenia as appears by the Records
for a detriment that was occasioned purely by the Laders means 2. 7. 15 Attachment Attachment of the Lading cannot be made in the Masters hand 2. 3 18 Attaint The Law takes notice of the person Subject but of an Alien è cont ' 3 2. 2 No corruption of blood upon an Aâ—…tainder of Pyracy 1. 4. 23 26 Barretry BArretry of the Marâ—…iners who shall be responsible for the same 2. 3. 13 Battel Goods or Ships gain'd therein where the Owners are divested of their property 1. 1. 7 But regain'd by a Ship of Warr the Property is preserved 1. 1. 9 Blanks Filling them up against Law 2. 10. 27 Boats Ship Boat not forfeited by the Pyracy of the Ship 2. 1. 8 The Duty of Boats and all other small Vessels in time of Warr and in Battail 1. 14. 24 Bottomery From whence so called 2. 11. 12 Buoyes Not putting them to Anchors subject the Master to punishment and answer the damage 2. 9. 7 Bulk When the same may be broke 2. 15. 1 Butlerage What and when payable 2. 8. 8 Canon CAnon designed for the Relief of a City or Fleet cannot in a Storm be flung over-board 2. 6. 15 Captives Where they may be justly kill'd 1. 14. 12 How that power is governed 1. 14. 17 Where he that dyes in it is supposed to dye before his being taken 3. 1. 2 Children born before their being taken are free 3. 1. 2 Captive General is immediately the Prince's Prisoner 3. 1. 5 Ports and Cinque-Ports Ports in England 2. 14. 18 Free of Prisage 2. 8. 10 Members and Creeks What are meant by them 2. 14. 7 Within the Body of the County 2. 14. 8 Port of London its extent 2. 14. 9 Clergy Not allowable to a Pyrat for Pyracy on the High Sea 1. 4. 23 But in a Creek or Port it is 1. 4. 24 Commanders Their Duties in time of Fight 1. 14. 13 Commissions Commissions awarded to enquire of Depridations 1. 2. 24 And to give satisfaction 2. 4. 28 Commission for Warr in what respect 1. 3. 5 Commissions qualifie the Caption 1. 4. 14 Communion Communion of Pastures in our first Parents 1. 1. 3 Confederates Differences amongst them how determined 1. 8. 4 Confederates how bound to defend each other 1. 7. 9 Of the Succours they are to lend 1. 7. 15 May ayd one another against one anothers Confederates 1. 7. 16 Consanguinity The various degrees of the same 3. 2. 8 In all Collateral descents except between Brother and Brother the half blood does inherit but between them the half blood does impede 3. 2. 8 Contraband Contraband Goods where the same may be seized 1. 1. 15 Contracts Contracts between Princes though by force oblige 1. 8. 9 Contracts between Merchant and Master where valid and where not 2. 4. 3 6 7 Contract is not determined if the Ship be taken by an Enemy and afterwards retaken 2. 4. 12 Contract for Freight cannot be made with a Marriner 2. 4. 14 Charter-parties settle the Agreement and the Bills of Lading the Contents 2. 4. 7 Contracts where they have their inception from Sealing 22. 11. 9 None of the Ancestor can bind the person of the Successor as to point of slavery 3. 1. 7 Contribution Contribution for Moneys lent on Bottomery 2. 11. 10 Contribution the remainder of the Lading are as tacitly obliged to the same as for Freight 2. 6. 7 Two Ships encounter anawares the Contribution is to be proportionable 1. 6. 10 Contribution shall not be made if the Sayls or Masts are broken or lost in the Storm but if cut down otherwise 2. 6. 12 No Contribution but where the Ship arrives in safety ibid. Contribution in cases of Necessity 3. 5. 26 Contribution a main Ingredient in Leagues and how regulated 1. 7. 9 Contribution cannot be had by one whose Goods are taken by Reprizal 1. 2. 23 Contribution where to be made for the Redemption of the Master 1. 4. 5 Contribution may be paid to both parties 1. 12. 6 7 Corporations When introduced for Merchants in England 3. 5. 2 Of those Trading to India from England and Holland 3. 5. 5 Countermand May be made by the drawer at any time before the money becomes due 2. 10. 22 Courts By the Statute of H. 8. Courts may be erected for the Tryal of Pyracy 1. 4. Where the Admiralty hath Jurisdiction of the principal the Courts at Common Law will remit them their Accessory 1. 4. 28 Court appointed for the Trying of Merchant Strangers Causes according to the Custome of Merchants 2. 12. fol. 303 Customes Goods Wreck't pay no Customes 2. 13. 11 Customing Goods in another mans name the penalty 2. 8. 8 The King is entitled to his Duty upon breaking of Bulk 2. 8. 9 Cannot be imposed without Act of Parliament 1. 12. 1 2 3 May be Fermed out 2. 12. 3 The Antiquity of Customers 2. 12. 5 Customes what is meant by the same 2. 12. 6 Of Magna Custuma and for what given ibid. Parva Custuma on what Considerations given 2. 12. 7 How the same is governed 2. 13. 6 7 Câ—…wards To suffer death without mercy 11. 14. 12 15 17 Damage TO be repaired out of his or their Estate that commit an Injury if not then the same becomes a National Debt 1. 2. 12 Denizen The Issue born of English-man on the Body of a Forraigner beyond Seas is a Natural born Subject 3. 1. 8 Denization by Letters Patents of France remove the total disability but in England è cont ' 3. 3. 11 Two Denizon Brothers one purchases Lands and dyes the other may inherit 3. 3. 11 Not capable of Honour ibid. Derelict Cannot be of any Goods cast over-board to lighten the Ship 2. 6. 15 Of places that are possessed one day and abandoned another make not a Derelict 3. 5. 3 Descrters May be slain by any man by the Lawes of Nations 1. 6. 9 12 15 Coward suffers death without mercy 1. 14. 17 Vide Derâ—…lict Disability Ships disabled in Battail are not to be relieved till the Enemy is beaten 1. 14. 16 Disability of the Father hinders not but one Brother may be Heir to the other 3. 2. 8 No disability in an Alien beinging an Action in Auter Droit 3. 2. 9 An Alien Infant disabled to be a Merchant Trader in England 3. 2. 11 Disability not cured in an Ancestor without actual naming them 3. 3. 3 Discipline Orders must be obeyed and they that break them may be punished though the act succeeds well 1. 14. 14 Disclaimer By the Predecessor shall barre the Successor 2. 8. 7 Discent 1. The Rules that govern them 3. 2. 3 2. Discents according to the Canon Law 3. 2. 4 Impeded in an Ancestor from whom and to whom will hinder the discerit 3. 2. 5 Disfranchise The ancient way of compleating the same 3. 1. 9 Cannot now be done to a Freeman without lawful Tryal 3. 1 9 The various wayes now used by the Laws of England 3. 1. 9 Domiâ—…on
Com. lit fo 8. Per L. C. I. Hale in Ramseye case * Just. l. 9. tit de gradibus consanguinitatis 38. †Decret Gracianii cap. 35. quaest 5. Litt. sec 20. 31 Ed. 3. Gard. 116. Hollands cause cited by Littleton * Servien in Comptes degrees in line Collat. Solenk c. * Browns case Mic. 1656. B. R. Contra 5 E. 6. Bro. Admiration 47. which prefers the Brother of the half blood before the Mother 10 Eliz. Dyer 274. Grayes case Com. placit Coron so 241. Henry Courtneys case Mich. 40. 41. Eliz. ruled in the Exche quer in the case of Hobby 49 E. 3. 12. par Tanke and Pershay Co. 7. Rep. 21. Calvins cast Sir John Burroughs Soveraignty of the Seas so 102. Pasce 31 Eliz. C. B. Mich. 6 Jac. in C. B Brownlow 1. part 45. Mich. 29. Eliz in C. B. Gold Folio 29. Mich. 30 Eliz. Coke 5. part Pages cause fol. 52. Moore 431. Walton v. Mashum Dyer 282. Alien Stamford Prerogative Regis ca. 18. fol. 53. tit Kings seizin c. Cross ve Gayer Cro. 3. part so 123. Plowd Com. 477. 17 E. 3. fol. 10. Henry Hills cause 29 Assize 30 32. 32 Assize Travers 32. vouched in Stamfords plt fol. 54. cap. 18. 23 Cdr. in B. R. Styles 20. King vers Holland Stat. 14. Car. 2. cap. 11. 14 15 H. 8. Cap. 4. Hill 12 Jac. Bulstrod 3. part fol. 19. cited in St. Thoma Walters case Yelverton 199. Turloote vers Monson 8 Jac. B. R. Moore 4â—…1 But yet Aliens and Denizons are restrained by the Stat. of 5 Eliz. Ca. to use any Trade not having served seven years as Apprentices within the Realm Vide the Statute what Trades Trin. 12. Car. 1. at Sergeants-Inn in Fleet-street by all the Judges Huttons Reports fol. 132. Servien lib. 2. cap. 12. Com. Litl 129. Coke 3. Inst. so 241. My Lord Cook so conceives but Mr. Selden denyes that ever there was any such modus tenendi but the same is an imposter Vide his Titles of Honour fol. 708. 710 718. to 721. Selden Tit. of Honour fol. 213. in Scotland the tit is Carolus Scotiae Angliae Franciae Hyberniae Rex but in Ireland Angliae Scotiae * From hence it is that the King at this day cannot alien or sell Ireland without an Act of Parliament for they whose right he succeeds could not do it Co. 4. Institut fol. 357. nor can he grant Portus Maris obedientiis advoâ—… cationibus patronationibus Ecclesiarum Metropoliticarum Chathedralum Cancellar Justiciar nor mero mixto Imperio and many more all which are inseparably annexed a Kingdom †Imperium aliud est ob utilitatem ejus qui Regitur hoc inter libeâ—…s locum habet illud inter Dominos servos Arist. lib. 7. de Republica †Case of the Earl of Sherewsbury on the Stat. of 28. 8 of Absenteâ—… 4. Inst. prescribes fol. 354. * Or else they came to London for them Cl. 18. Hen. 3. m. 17. Ariovistus apud Caesarem jus esse belli ait ut qui vicissent iis quos vicissent quemadmodum vellent imperarent de Bello Gallico l. 1. †Leg. qui in servitute est de reg Juris Leg. si eveniet D. ad leg Jud. de Adult Calvins case lib. 7. fol. 23 For at a general Councel at Gassels of all the Clergy there Anno 1170. Ecclesiastical Laws of England were established and made of force in Ireland Geraldus Cambrensis Tepographia Hyberniae L. 3. cap. 18. * Pat. 8 E. 1. 〈◊〉 13. Hybern †Mathew Paris Hist Angl. p. 121. leges Angliae oâ—… omnibus sunt gratanter preceptae Orucks case 33. Eliz. Cok. 7. part fol. 23. Calvins case †Ely Placita Parliament p. 198. to 208. Sir John Daâ—…s on the Conquest of Ireland 103 104 105. Escheat 52. Anâ—… 31. H. 3. nuâ—… Carâ—…ones case Hobbys case Stephens case Note this was before the Statute of 25. of E. 3. its vouched by Shard in 40 Assize pl. 24. see Calvins case 7. Report Ce. Inst. 1. fo 2 Godfry Dixons case Hill 16. Jac. B. R. Godbolt 275. 30 H. 8. Dyer 44 26 Ed. 1. Rott part 1. 1 Dors claust H. 3. Memb. 17. Co. 1. Inst. fo 278. B. Co. 4. Inst. fol 47. Sans. Pl. Coron lib. 3. cap. 7. Lambâ—… fol. 91. 3. Câ—… 1. Just. 155. 27 E. 3. cap. 8. 28 E. 3. cap. 13. But if it be for Treason è contra Vide postea num 5. Dyer 144. Stat. 18. Eliz. cap. Cro. 3. part 818. 841. Bro. tit trial Crâ—… 3. part 481. 〈◊〉 H. 6. 4. Dyer 28. Dyer 144 21 H. 7. 32 Pl Coron 159. Dyer 357. 3 E. 4 11 12. Co. l. 10 fo 104. Cro. 3. part fol. 818 841. 21 Herb. 4. Stamford 154. Hill 36. Eliz. Dr. Lopez case by all the Judges Vide Lord Dyer fo 144. the case of Sherily where the point is fully handled Co. Inst. 3. part fol. 27. Moores 557. Barrs case Colivre Coke Entries tit Alien 1. Stamford 160. B. 25 Ed. 3. cap. 8. 28 Ed. 3. â—…3 2 H. 5. 3. Mich. 35 36. Eliz. in B. R. Sr. Julius Caesar Versus Phillip Corsini Crâ—… 3. part 275. Sir John Davis Conquest of Ireland fo 103 104 105. Co. 7. fol. 23 Calvins ease Mich. 4. Car. 1. Cro. fol. 242. 14 Eliz. in the case of the Duke of Norsolk Ce. Inst. 4. pt 279. * 11 H. 8. fo 4 Hill 17. 18. Car. 2di in B. R. Robles Vers. Langston Hobart fo 271. Courteens case Tacitus Annal. 13. ubi nec possessio est plene in homine nec homo plene in possessione * De Jure Belli ac Pacis lib. 2. cap. 2. §. 17. Dion Prusaeenses Orat. 5. Recte facta est concessio quae est sine damno alterius * As it is consonant to nature that my share of subsistance which was before uncertain should now be fixed so it is necessary that the consent which others gav eto this at first should stand fixed especially if there was no obligation or declaration at the first to the contrary Vide Selden de Jure Na gen ad men Heb. id obligat quod est ex officio quod legis est But the sanction of a Law supposes the nullity of a state of nature not of a right of nature Pia mater panem inter liberos distribuit ut fructum veniat singulis * Xenephon in his Answer to the Sinopenses ubi jus emendi nobis non conceditur sive in Barbarico sive in Grecianico solo ubi quae opus sumimus non per preterviam sed ex necessitate exped Cyri. â—…5 Lessius lib. 〈◊〉 cap. 12. dub 1â—… num 70. 2 Cor. 8. 13. Grotius de Jure Belli ac Pacis lib. 2. cap. 2. §. 7 8 9. Leges humanae obligant uti factae sunt scilicet cum sensu humanae imbecelitatis Ne quicquam funde suspirat nummus in imo * Intendetnr inquit socordia languescet industriâ si nullus ex se metus aut