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
that to be when the matter in controversie is tam quod merita quâ—…m quod modum praecedendi not doubtful for in doubtful matters the presumption is ever for the Judge or Court But the Reprisal must be grounded on a wrong Judgement given in matters not doubtful which might have been redressed one way or other either by the ordinary or extraordinary power of the Country or place and the which was apparently perverted or deny'd But if the matter be doubtful then otherwise for in causes dubious or difficult there is a presumption always that Justice was truly administred by them who were duely elected to publick Judgements XI And yet in this later case some who are of opinion that if the cause were dubious and if the Judgement were against apparent right the Stranger oppressed is let into his satisfaction and the reason is because the Judge's authority is not the same over Forraigners as over Subjects for the reason above mentioned If an English Merchant shall prosecute a Suit in the Ordinary Courts of Law beyond Seas and Sentence or Judgement shall pass against him from which he appeals to the Supream Judgement and there the first Judgement or Sentence is affirmed though the Complainant hath received a Judgement against the real right of the cause yet this will be no cause for Letters of Reprisal though perhaps it may occasion Letters of Request if there be strong circumstances for the same to have a rehearing of the cause But if an English Man shall recover a debt there and then the Officer having the debtor in custody will wilfully let the Prisoner escape and then become insolvent the same may perhaps occasion Reprisal In England if a Forraigner brings an Action personal against I S. and the matter is found special or general and the Party prays Judgement and the Court refuses it and then the Deffendant dyes and with him the Action the nature of it being such the Party is here without remedy the same may occasion Letters of Reprisals if it be accompained with those circumstances that evince an apparent denyal of Justice i. e. as putting it off from Term to Term without cause An English Man pursues his right in the legal Courts beyond Seas and the Military Governor opposes the prosecution and by force conveys away the debtor and his Goods the Sentence or Judgement is obtained its ultimate end being Execution being thus frustrated may occasion Letters of Reprisal XII Persons murdered spoiled or otherwise dampnify'd in hostile manner in the Territories or places belonging to that King to whom Letters of Request are issued forth if no satisfaction be returned Letters of Reprisal may issue forth and the Parties petitioners are not in such cases compelled to ressort to the Ordinary prosecution But the Prince of that Country against whom the same are awarded must repair the damage out of his or their Estates who committed the injuries and if that proves deficient it must then fall as a common debt on his Country XIII Such Letters of Request generally allot a time certain for damages to be repaired if not Reprisals to issue forth XIV It is not the place of any Mans Nativity but his domicil not of his Origination but of his Habitation that â—…bjects him to Reprise The Law doth not consider so much where he was Born as where he lives not so much where he came into the World as where he improves the World If therefore Letters of Reprisal should be awarded against the Subjects of the Duke of Florence and a Native of Florence but denizied or Naturalized in England should have a Ship on a Voyage for Leighorn if a caption should be made the same is not lawful nor can the same be made prise XV. Nor doth it any where appear that Reprisals can be granted on misfortunes happenning to Persons or their Goods residing or being in Forraign parts in time of War there for if any misfortune happens or is occasioned to their effects or to their Persons then they must be contented to sit down under the losse it being their own faults they would not fly or relinquish the place when they fore-saw the Country was subject to the spoil of the Souldiers and devastation of the Conqueror The factions of the Guelfs and Gibellins in Florence warring against each other The Guelfs obtaining the Victory and thrusting the Gibellins out of it after they had taken the City Domum cujusdam Hugonis de Papi in hoc Regno Angliae demorantae diruerunt and plundred his Goods therein qui Hugo supplicavit Dom. Regi ut inde Itali Mercatores of that faction and City then in England emendas hic sibi facerent upon which adjudicatum fuit quod dicti Mercatores dicto Hugoni satisfaciant pro damnis susceptis destructione domus suae upon which a Writ of error was brought and the Judgement was reversed in these words Quod non est consuetudo Angliae de aliqua transgressione facta in aliena Regione tempore Guerrae vel alio modo consideratum est quod totus processus ejus effectus provocentur c. XVI By right for so it is now called of rendring like for like there are many Persons exempted and those whose Persons are so priviledged have also protection for their Goods some by the Laws of Nations some by the Civil Law others by the Common Law among which Embassadors by the Laws of Nations their retinue and Goods are exempt coming from him who awarded the Reprise the Laws of Nations not only providing for the Dignity of him that sends but likewise the security going and coming of him that is sent Nor against those that travel for Religion nor on Students Schollars or their Books nor on Women or Children by the Civil Law nor those that travel through a Country staying but a little while there By the Canon Law Ecclesiastical Persons are expresly exempt from Reprisals A Merchant of another place then that against which Reprisals are granted albeit the Factor of such Goods were of that place are not Subject to Reprisals XVII Ships driven into Port by storm or stress of weather have an exemption from the Law of Reprisals according to the Jus commune but by the Law of England otherwise unless expresly provided for in the Writ or Commission But if such Ship flyes from his own Country to avoid confiscation or some other fault and is driven in by stress off she may then become subject to be prize But it is not lawful to make seizure in any Ports but in his who awarded the Reprisal or his against whom the same issued for the Ports of other Princes or States the Peace of them are to be maintained XVIII Ships attaqued by those that have Letters of Reprise and refused to be yielded up may be assaulted and entered and though it may fall out not by intention but by accident that some of those that so
the Fellow Subject of the Captors or of Nations in Amity with his own Soveraign make restitution to the Owner the costs and charges and what other things in equity shall be decreed to the Captor first considered and deducted XX. By the Status of 27 Edw. 3. cap. 13. if a Merchant loose his Goods at Sea by Pyracy or Tempest not being wrackt and they afterwards come to Land if he can make proof they are his Goods they shall be restored to him in places Guildable by the King's Officers ' and six Men of the Country and in other places by the Lords there and their Officers and six Men of the Country This Law hath a very near relation to that of the Romans called De Usu-Captione or the Atinian Law for Atinius enacted that the Plea of Prescription or long possession should not avail in things that had been stoln but the interest which the right Owners had should remain perpetual the words of the Law are these Quod surreptum est ejus rei aeternitas auctoritas esset where by Auctoritas is meant Jus Dominii XXI Yet by the Common Law of England it has been held that if a Man commit Pyracy upon the Subjects of another Prince or Republique though in League with us and brings the Goods into England and sells them in a Market Overt the same shall bind and the Owners are for ever concluded and if they should go about in the Admiralty to question the property in order to restitution they will be prohibited XXII This offence was not punishable by the Common Law as appears by the preamble of the Stat. of 28. H. 8 cap. 15. but the same was determined and judged by the Admiral after the course of the Civil Law but by force of the said Act the same is enquired of heard and determined according to the course of the Common Law as if the offence had been committed on Land XXIII This Act does not alter the offence or make the offence Felony but leaves the offence as it was before this Act viz. Felony only by the Civil Law but giveth a mean of Tryall by the Common Law and inflecteth paines of death as if they had been attainted of any felony done upon the Land The Indictment must mention the same to be done upon the Sea A Pardon of all Felonies does not extend to this offence but the same ought especially to be named Though there be a forfeiture of Lands and Goods yet there is no corruption of Blood There can be no Accessory of this offence tryed by virtue of this Statute but if there be an Accessory upon the Sea to a Pyracy he must be tryed by the Civil Law The Statute of 35 H. 8. cap. 2. taketh not away this Statute for Treasons done upon the Sea Clergy is not allowable to the party on the Statute 28 H. 8. vide 14. Jac. in B. R. Moore 756. placet 1044. Though a Port is Locus publicus uti pars Oceani yet it hath been resolved more then once that all Ports not only the Town but the Water is infra corpus Comitatus If a Pyrat enters into a Port or Haven of this Kingdom and a Merchant being at Anchor there the Pyrat assaults him and robs him this is not Pyracy because the same is not done super eltum Mare but this is a down-right robbery at the Common Law for that the Act is infra corpus Comitatus and was inquirable and punishable by the Common Law before the Statute of 28 H. 6. cap. 15. XXV So If such a Pyracy be made in a Creek or Port in such cases it has been conceived that Clergy is allowable upon the Stat. of 28 H. 8. but if it be done super altum Mare there no Clergy is allowable by the Pardon of all Felonies at the Common Law or by the Statute Law Felony super altum Mare is not pardoned for though the King may pardon this offence yet being no Felony in the eye of the Law of this Realm but only by the Civil Law the Pardon of all Felonies generally extends not to it for this is a special offence and ought especially to be mentioned XXVI A Man attainted by virtue of that Statute forfeits his Lands and Goods yet there works no corruption of Blood by virtue of that attainder nor can there be any Accessory of Pyracy by the Law of this Realm but if it falls out that there is an Accessory upon the Sea such Accessory may be punished by the Civil Law before the Lord Admiral but he cannot be punished by virtue of this Act because it extends not to Accessories nor makes the offence felony XXVII If one steals Goods in one County and brings them into another the Party may be indicted in either County but if one commits Pyracy at Sea and brings the Goods into a County in England yet he cannot be indicted upon that Statute for that the originall taking was not felony whereof the Common Law took conuzance XXVIII If a Man is taken on suspition of Pyracy and a Bill is preferred against him and the Jury find Ignoramus if the Court of Admiralty will not discharge him the Court of Kings Bench will grant a Habeas Corpus and if there be good cause discharge him or at least take Bayle for him But if the Court suspects that the Party is guilty perhaps they may remand him and therefore in all cases where the Admiralty legally have an original or a concurrent Jurisdiction the Courts above will be well informed before they will mdedle If a Man be in custody for Pyracy if any aids or assists him in his escape though that matter is an offence at Land yet the Admiralty having Jurisdiction to punish the principal may have likewise power to punish such an offender who is lookt upon quasi an Accessory to the Pyracy but to rescue a Prisonner from an Officer of theirs they may examine the cause but they cannot proceed criminally against the offender XXIX Antiently when any Merchants were robbed at Sea or spoiled of their Goods the King usually issued out Commissions under the Great-Seal of England to enenquire of such depradations and robberies and to punish the Parties and for fraudes in Contracts to give dammages to the Parties and proceed therein secundum Legem consuetudinem Angliae secundum Legem Mercatoriam Legem Maritimam all three Laws included in the Commissions One Marsh a Fisherman being at Sea was taken by Pyrats and all which he had after that the Pyrats took another Ship belonging to the Dane and the Pyrats having rifled the Ship and taken the best of the Goods of the Danes the Pyrat put aboard the Fisherman and so suffered him to depart who landing here went immediately to Dr. Talbot a Civilian and shewed him all this matter and desiring his advice who directed an Inventory to be
hourly before our eyes in those vast immensities that are daily appropriating and a planting in America from hence we learn what was the cause for which Men departed from the Primitive communion of things first of movables and then of immovables also to wit because when not content to feed upon that which of it self and the Earth singly brought forth to dwell in Caves to go naked â—…or clad with rinds of trees or skins of Beasts they had chosen a more exquisite kind of life there was need of Industry and using of Art in those matters which they should give themselves up to so likewise from hence we learn that Men not content to live in that innocent state of community how things went into Property not only by theact of the mind for they could not know the thoughts of one another what every one would have to be his own that they might abstain from it and many might desire the same thing but by a certain Copenant either express as by division or tacit as by occupation for so soon as Communion did not please them and division was not made it ought to be supposed an agreement amongst all that every one should have proper to him self what he seized on for every one might prefer himself before another in getting those things useful for the accommodating of Humane life Nature not being repugnant to the same IV. And though Property may seem to have swallow'd up all that right which arose from the common State of things yet that is not so for in the Law of Dominion extream necessity seems excepted Hence it is that in Navigation if at any time Victuals fail what every one hath ought to be brought forth for the common use and so in a Fire I may pull down or blow up my Neighbors House to save mine destroy the Suburbs to raise Lines or Forts to preserve the City thereby dig in any Mans Grounds for Salt-Peter cut in pieces the Tackling or Nets upon which my Ship is driven if it cannot be disintangled by other means all which are not introduced neither by the Civil Law nor the Municipal Laws of Countrys but are expounded by them with their proper diversities V. Nor is Property so far instated in Man but the same may again be devested by such means as stand with the Law of Nature and Nations and first by War the causes of which are assigned to be three Defence Recovery and Revenge But then such War must be just and he that undertakes it must be a Soveraign the just causes to make a War are our Princes or Countreys defence and that of our Allies the satisfaction of our injuries or theirs our just pretentions to an Estate or Right Divines have added another not only the defence of Religion but its advancement and propagation by the way of Arms and some the extirpation and rooting up a contrary Certainly War is too rough a hand too bad a means to plant Piety Sicut non Martyrem poena sic nec sortem pugna sed causa As it is not the punishment that makes the Martyr so it is not fighting that declares a valiant Man but fighting in a just cause in which who so shall resolvedly end his Life valiantly in respect of the cause that is in the defence of his Prince Religion or Country ought to be numbred amongst the Martyrs of God VI. War by the Laws of England is accounted when the Courts of Justice are shut up and the Judges and Ministers of the same cannot by Law protect Men from violence nor distribute Justice So when by Invasion Insurrection Rebellions or such like the current of Justice is stopt and shut up Et silent Leges inter arma then it is said to be time of War and the Tryall of this is by Records and Judges of the Courts of Justice and not by a Jury the Kings Standard appearing in the Feild or at Sea does likewise denote a War and if the Rebells against whom the Kings Host marches breaks a Prison the Goaler is not lyable for they are not such Rebels as are capable of being supprest by the ordinary Ministers of Justice but the subject matter is now only touching forraign War or that which is commenced for Dominion or Right or for the maintaning of the same in our peaceable possession according to Justice VII By the Law of Nature in such a War those things are acquired to us which are either equall to that which being due unto us we cannot otherwise obtain or else is much a mark as does infer damage to the guilty part by a fit measure of punishment And by the Laws of Nations not only he that wageth War on a just cause but every one in solemn War and without end and measure is master of all he taketh from the Enemy in that sense that by all Nations both himself and they that have title from him are to be maintained in the possession of such things which as to external effect we may call Dominion Cyrus in Xenophon it is an everlasting Law among Men that the Enemies City being taken their Goods and Money should be the conquerors for the Law in that matter is as a common agreement whereby the things taken in War become the Takers from the Enemy are judged to be taken away those things also which are taken away from the subjects of the Enemy and Goods so taken cannot by the Law of Nations be properly said taken but when the same are out of all probable hopes of recovery that is as Pomponius observes brought within the bounds or guards of the Enemy for says he such is a Person taken in War whom the Enemies have taken out of our and brought within their guards for till then he remains a Citizen and as the Law of Nations is the same reason of a Man so likewise of a thing and therefore Goods and Merchandize are properly said to be the Captors when they are carried inâ—…ra Praesidia of that Prince or State by whose Subject the same were taken or into the Fleet or into a Haven or some other place where the Navy of the Enemy rides for then it is that the recovery seems to be past all hope And with these Laws agrees the Common Law of this Realm which calls such a taking a Legalis Captio in Jure Belli and therefore in 7. R. 2. an action of Trespass was brought for a Ship and certain Merchandize taken away the Defendant pleaded that he did take them in le haut Mere oâ—… les Normans queuâ—… sont Enemies le Roy and it was adjudged that the same Plea was good In the year 1610 a Merchant had a Ship and Merchandize taken by a Spaniard being an Enemy a month after a Merchant Man with a Ship called The Little Richard retakes her from the Spaniard it was adjudged that such a possession of the Enemy divested the Owner of
and in the attempt the Pyrats shall be overcome if the Captors bring them to the next Port and the Judge openly rejects the Tryal or the Captors cannot wait for the Judge without certain peril and losse Justice may be done upon them by the Law of Nature and the same may be there executed by the Captors Cajus Caesar being but a Private Man pursued the Pyrats by whom he formerly had been taken and spoiled by them and making up to them with such a Fleet as he possible in haste could get ready attaqued burnt and destroyed their Ships and the Men he brought back to an Anchor where repairing to the Proconsul to do Justice who neglecting himself returned back and there hang'd them up XIII If a Pyrat at Sea assault a Ship but by force is prevented entering her and in the attempt the Pyrat happens to slay a Person in the other Ship they are all principalls in such a murder if the Common Law hath Jurisdiction of the cause but by the Law Maritime if the Parties are known they who gave the wound only shall be principalls and the rest accessories and where they have cognizance of the principal the Courts at Common Law will send them their accessory if he comes before them XIV If a Spaniard robs a French Man on the High Sea both their Princes being then in Amity and they likewise with the King of England and the Ship is brought into the Ports of the King of England the French Man may proceed criminaliter against the Spaniard to punish him and civiliter to have Restitution of his Vessel but if the Vessel is carryed intra Praesidia of that Prince by whose Subject the same was taken there can be no proceeding civiliter and doubted if criminaliter but the French Man must resort into the Captor or Pyrats own Country or where he carried the Ships and there proceed A Dutch Man but Naturalized by the Duke of Savoy and living at Villa Franca in his Dominions procures a Commission from the States of Holland and coming to Leighorn there rid with the Colours and Ensigns of the Duke of Savoy the Ship Dyamond being then in Port and having received her lading was afterwards in her Voyage home surprised by that Caper and brought into Villa Franca and there condemned and sold to one Poleman which Ship afterwards coming for England the Plaintiffs having notice made a seizure and upon Tryal Adjudication passed for the Plaintiffs the original proprietors for though the Ship of War and the Captors were of Savoy and carryed thither yet being taken by virtue of a Dutch Comission by the Law Maritime she must be carryed infra Praesidia of that Prince or State by virtue of whose Commission she was taken Nor can such carrying of the Ensignes or Coulors of the Duke of Savoy who was then in amity with the Crown of England or the Commander though a Subject of that Prince make him a Pyrat or subject them or those to whom they have transferred their interest of the Prize any waies to be questioned for the same criminaliter for that the original quoad as to the taking was lawful as one enemy might take from another but civiliter the same for that the Captor had not entitled himself to a firme possession And therfore in all cases where a Ship is by Letters of Marque or Pyracy if the same is not carry'd infra praesidia of that Prince or State by whose Subject the same was taken the Owners are not divested of their property but may re-seize wheresoever they meet with their Vessels XV. If a Pyrat attaques a Ship and only takes away some of the Men in order to the selling them for slaves this is a Pyracy by the Law Maritime but if a Man takes away a Villaine or Warde or any other Subject and sells them for slaves yet this no robbery by the Common Law XVI If a Bale or Pack of Merchandise be delivered to a Master to carry over Sea to such a Port and he goeth away with the whole Pack or Bale to another Port and there sells and disposes of the same the same is no felony But if he opens the Bale or Pack and take any thing out animo furandi the same may amount to such a Larceny as he may be indicted in the Admiralty though it amounts not to a Pyracy Yet if such a Master of Ship shall carry the lading to the Port appointed and after retakes the whole Pack or Bale back again this may amount to a Pyracy for he being in the nature of a Common Carrier the delivery had taken its effect and the privity of the Balement is determined XVII If a Pyrat shall attaque a Ship and the Master for the redemption shall give his Oath to pay a sum certaine though there be no taking yet is the same Pyracy by the Law Maritime If a Ship shall ride at Anchor and the Mariners shall be part in their Ship-Boat and the rest on the shore and none shall be in the Ship yet if a Pyrat shall attaque her and rob her the same is Pyracy XVIII A Merchant procures Letters of Marque or Reprise and then delivers the Commission to Persons to endeavour a satisfaction if such Persons commit Pyracy the Vessel is forfeited without controversy but the Merchant is no waies lyable to make satisfaction for though the Superior shall answer for the actions of his Ministers or Servants yet that is introduced by the Civil Law but this question must be decided by the Laws of Nations by virtue of which such Commissions are awarded or granted the which does exempt any Man to answer for the dammages of his Servants unless he fore-knew that they would commit such a Pyracy or spoliation or any way have abetted or consented to the same which right may be forfeited and the Civil Law let in to acquire satisfaction But if a Ship shall be at Sea and in necessity if she attaques another Ship and takes out some Victuals Cables Ropes Anchors or Sailes especially if that other Ship may spare them this is not Pyracy but then the party must pay ready Money for such things or give a Note or Bill for the payment of the value if on this side the Straites of Morocco within four months if beyond within twelve months XIX By the Law Maritime if Goods are taken by a Pyrat and afterwards the Pyrat attaques another Ship but in the attempt is conquered the Prise becomes absolute the Captor's saving the account to be rendred to the Admiral And it is accounted in Law a just caption of whatsoever may be got or taken from such Beasts of prey be the same in their own or in their Successors possession But then an account ought to be rendred to the Admiral who may if they happen to be the Goods of
to extream necessity yet it follows not upon that that they who so conformed sinned or did that which was absolutely unlawfull for we well know that reason of State oft calls for Sacrifices where there is no fault to expiate Ostrocisme and Jealousy make away those who are known to deserve most but in strickt right which is the term of this question the just governour ought to look upon them as more unfortunate then faulty CHAP. XIV Of the Naval Military part I. The advantage that Princes have by a good Commander II. The love that naturally proceeds from the Mariners to those that are valiant and generous III. Princes in prudence ought not to listen too much to the complaint against Commanders IV. Of the faults generally considered in Soldiers and Mariners V. Of the punishments that generally wait on such offenders VI. Of Drunkeness Swearing and other such sort of impieties not to be suffered in Fleets VII Spies if lawfull to use them by the Laws of Nations but being deprehended are to suffer death and how they are to be dealt withall by the Laws of England VIII It is not lawfull for a Friend or Neuter to relieve an Enemy and Persons so offending how punisht IX Ships taken as prize the Ship papers and other matters concerning the same are to be preserved X. Of things taken and acquired in War how the right of them becomes vested in the Captors and how that is to be understood by the Law of Arms. XI To steal the Cables or other furniture of the King of England's Ships how punishable at this day XII Ships surrendred and voluntarily surrendred how to be dealt with and whether those that shall resist it if entered by force whether quarter may be refused XIII Ships of War generally ought not to be yielded but if entered or disabled whether they may not accept of a quarter standing with the Oath called Sacramentum Militare XIV Of obeying Orders the same ought to be punctually to be follow'd and if broken though the Act succeeds well whether the same subjects not the actor to punishment XV. of the obligation incumbent on Commanders and Souldiers to behave themselves valiantly and the right of slaying an Enemy where lawfull XVI Ships how oblidged by the Law of Arms for the assistance of one another and of the duty of those that have Fleets under their Convoy XVII An Enemy beaten ought to be pursued and how far it is lawfull to slay such flying with their lives in their hands by the Laws of Arms and how the reeking sword ought to be governed XVIII Persons exempted from the sword by the Laws of Nature Nations Civil and Canon and by the Municipall Laws of some Countries XIX Mutining how esteemed valued and punished at this day by the practise of Armies and by the Laws of England XX. Whether it be lawfull to decoy the Subjects Souldiers or Mariners of an Enemy to forsake his Prince or General and to bring over his Men Ships or Arms and where by Law they may be received and how such deserters may be punished by the Laws of Nations and of England XXI Of Seducers Message Carriers and Decoyers of Souldiers how to be handled by the Law of Arm. XXII Of those that shall disobey or strike their superiour Officers how punishable XXIII Of mutening and those that shall act in the same how punished though they have a just cause of complaint XXIV Of the care incumbent on Commanders and Masters of the Great Ships as in reference to their safety and the punishment of wilfull burning and destroying them XXV Of the general offences at Sea how punished XXVI Court Martials how erected and what operation their Judgements have and upon whom XXVII Judges and Advocates Power as in reference to give an Oath and the Admiral 's power how limited to the punishing of offences XXVIII Of maimed Souldiers and Mariners and the provisions that the Law makes for them at this day XXIX Of Triumphs I. AN Excellent Generall is an evidence of the Fortune of a Prince and the Instrument that occasions the happiness of a Kingdom and therefore when GOD makes choise of a Person to repair the disorders of the World or the good of a particular State then is his care shewed in the furnishing him with necessary Principalls to undertake great matters the thoughts are put in his Soul by that eternall Commander to execute he troubles and confounds his Enemies and leads him as by the hand â—…o Victories and Triumphs And one of the greatest expedients whereof he serves himself for this purpose is to raise unto him excellent Men both in Courage and Conduct to whom he communicates his care and who help him to bear the weight of Affairs Alexander had never conquered Asia or made the Indies to tremble but for Ephestion Parmenio and Clytus Caesar gained many a Bataill by his Lievtenants and the fairest Empire of the World which ambition and evil of the times had divided into 3 parts was reduced under the Dominion of Augustus by the valour of Agrippa Justinian triumphed over Persia and destroyed the Vandalls in Affrica and the Goths in Italy by the aid of Bellisarus and Narcete And it is most certain that Noble Commanders are the Glory of their Princes and happiness of the People on the other hand base cowardly and treacherous Generals are the shame of the one and the dispair of the other II. Hence it is that Souldiers and Mariners draw their lines either of love even to the mouth of Canons with a good Generall or mutiny and hate to the main yard end against one that is bad for to obey them who are not their Soveraigns when they do them hurt when they insult and are cruell in cold blood and base cowardly or treacherous in Bataill is a sad necessity for them and a hard essay of patience yet must they be obeyed and the Souldiers and Mariners must not rebell or repine but submit till the Soveraign redresses the misfortunes III. Again Princes ought not to listen too much to the mutinous demands of the Crew or any others whose ambition watches their ruin whereby to conceive anger against this Commanders for it is easier to purge out the choler and discontent that is got under the hatches then to provide Commanders of Conduct Courage and Faithfulness to govern their Expeditions Bellisarius that most excellent Commander who had no other crime then his Reputation and was not culpable but that he was powerfull having conquered Persia subdued Africa humbled the Goths in Italy lead Kings in Triumph and made appear to Constantinople somewhat of Old Rome an Idea of the Antient Spendor of that proud Reipublique after all his Eminent Services this Great Person is abandoned to Envy a suspition ill grounded distroys the value of so many Services and a simple jealousy of State wipes them out of the memory of his Prince but he rests not there for the demeanor had
of the World and for quietness sake that what it cannot find we grant it a power to make XV. Yet if we examine all this strictly at the two great Tribunals the external and the internal and arargue the jue of it as Statesmen and Lawyers do we can then raise the argument of it no higher in the external or temporal Court then only this That it is very convenient it should have the effects of Right left properties and dominion of things should be uncertain and the apparent negligences of time Owners should be punished and controversies have a speedy end States looking more after publique repose and quiet then after strict virtue and more after those things which are ad alterum then that which concerns a Mans own self for say they The Gods look well enough after their own injuries States meddle not so much with great prodigalities as in petty Larcenies our chiefest Liberty Priviledges or Prerogative in this World consisting only in an uncountroulable Right which we have to undo our selves if we please Certainly if we plead at the other Tribunal as conscientious Lawyers we must give our ultimate resolution out of that Law Quae inciditur non aere sed animis which is not ingraved in Tables of brass but in the Tables of our Souls for the Rules of Law tell us Quae principio vitiantur ex post facto reconvalescant and that prescription or usu-caption which is but the lapse of so much time hath the power to make Wrong a Right yea to change the morality of an action and turn quantity into quality upon the result of all which taking for granted what those stubborn people do hold that instead of being a right or a certain cause or proof of it it only makes a shaddow or an opinion of right XVI And when wehave taken those people by the hand and with eagerness run with them to the very bottom and end of the line and there find nothing we are but in Pompey's astonishment when after his Conquest of Jerusalem when he had with such reverence and curiosity visited the Sanctum Sanctorum and found nothing there but a paire of Candle-sticks and a Chair in which there was no God sitting yet for all this mistake he would not as Josephus saith disorder or rob the Temple which he took by force of Armes because the the very opinion of Religion hath something of Religion which made Jacob accept of Laban's Oath by an Idol so ought not we for defect of giving the causes of the inception of Prescription or of the Right in Prescription disorder a State or be the occasion of setting of two Nations at enmity nay though in conscience we are satisfy'd that it contains but the opinion or shaddow of Right and as to the involving the lives of the innocent there is no such thing in the matter for there is not required any thing which they do not owe nor are they designed to death but if the cause be such that they that are innocent must perish that is be exposed to death by their Rulers because they obstinatly will not yield that which is right but will involve the lives of their innocent Subjects by force to defend that which is wrong such guilty Governors must answer for the defect of their own evil actions on the other hand there can be no doubt made but he that hath an undoubted right being a Soveraign the Subjects partake in the same and the indignity offered to him they immediatly become partakers in the suffering for the satisfaction of which they may yea are oblidged both by the Law of God and Nations to seek reparation if their Prince shall command vis manu sorti by the hazard of their Blood and Lives XVII On the other hand as War introduces the greatest of evills viz. the taking away of Mens lives and that which is equivalent to life so right Reason and Equity tells us that it ought not to be undertaken without the greatest cause which is the keeping of our lives and that without which our Lives cannot be kept or if they should be kept yet they would not be of any value to us seeing there may be a life worse then death even Captivity wherefore as we are forbidden to go to Law for a little occasion so we are not to go to War but for the greatest Now those things that are equivalent to a Mans life are such whom Almighty God appointed the same equall punishment as well as to those of murderers and such as were breakers into Houses breakers of Marriage Fidelity Publishers of false Religion and those who rage in unnaturall lusts and the like However before Mens Persons or Goods are to be invaded by War one of these three conditions is requisite 1. Necessity according to the tacite contract in the first dividing of Goods as hath been already observed 2. A Debt 3. A Mans ill merits as when he doth great wrong or takes part with those who do it Against which If any thing is committed War may be commenc't nor is the same repugnant to the Laws of Nature that is whether the thing may be done not unjustly which hath a necessary repugnance to the rational and social Nature among the first principals of Nature there is nothing repugnant unto War on the other hand there is much in favour of it for both the end of War the conservation of Life and Members and the keeping and acquiring of things usefull unto Life is most agreable to those principalls And if need be to use force to that purpose is not disagreable since every Living thing hath by the gift of Nature strength to the end it may be able to help and defend it self besides reason and the Nature of Society inhibits not all force but that which is repugnant to Society that is which depriveth another of his right for the end of Society is that every one may enjoy his own this ought to be and would have been though the Dominion and property of possessions had not been introduced for life members and liberty would yet be proper to every one therefore without injury could not be invaded by another to make use of what is common and spend as much as may suffice nature would be the right of the occupant which right none could without injury take away And this is proved by that Battle of Abraham with the four Kings who took Arms without any Commission from GOD and yet was approved by him therefore the Law of Nature was his warrant whose Wisedom was no less emineut then his Sanctity even by the report of Heathens Berosus and Orpheus nor is the same repugnant to the Hebrew Law or Gospell as the same is most excellently proved by the Incomparable Grotius XVIII On the other hand the fear of uncertain danger as building of Forts Castles and Ships and the like though the former be on Frontiers the refusing of Wives when
the dampness of the Ship and that the two last men cannot receive their proportion There are in this case these things to be considered 1. Whether the Master is bound to deliver the exact quantity 2. Whether those that have received this loss can charge the Assurors 3. Whether the Assurors can bring in the first men for a contribution they having their Salt delivered to them compleatly Certainly the Master is not bound to deliver the exact quantity nor is he obliged to redeliver thev ery specifical Salt but onely as men are to repay Money or Corn by the distinction in a Bagg or Sack and out of them but if the fault was in not pumping keeping dry his Deck and the like there è contra though perhaps there may be special agreement Besides this is a peril of the Sea against which the Master could not prevent and of necessity he must deliver to one first before another As to the second It is no question but that the Assurors shall answer But whether they shall bring in the first men for contribution may be some doubt It has been conceived by some that they ought not for they delivered their Salt to the Master tanquam in Creditum and was not to expect the redelivery of the same specifical Salt Besides the Master must of necessity deliver to one man before another But by others it has been conceived they ought to contribute per ratione for as Goods of necessity some must be stowed in the Hold and that such Goods seldome fail without a perill of the Sea so the rest must of necessity contribute to that misfortune and so make no distinction The Bills of Lading are very useful to settle the difference between the Assuror and assured of which there are 3. parts one sent over Sea the other left with the Master and the last remaining with the Lader XVI The Office of Assurance was Erected by the Statute of 43 Eliz. Cap. 12. which reciting That whereas differences growing upon Pollicyes of Assurances had been ordered by discreet Merchants approved by the Lord Mayor who did speedily decide those causes untill that of late years divers persons did withdraw themselves from that Arbitrary course and have sought to draw the parties assured to seek their Moneys of every several Assurer by Suits Commenced in her Majesties Court to their great Charges and delay whereupon it was Enacted That the Chancellor or Keeper for the time being should issue forth a standing Commission to be renewed yearly or as often as to him shall seem meet for the hearing and determining of all such causes arising on Pollicies of Assurance as shall be entred in the Office of Assurance in London The Judges or Commissioners appointed are the Judge of the Court of Admiralty the Recorder of London two Doctors of the Civil Law two Common Lawyers 8. grave and discreet Merchants or to any 5. of them and that they or the greatest part of the Commissioners have power to Hear Examine Order and Decree all such causes in a brief and summary way without formality of pleading They have power to summon the parties examine witnesâ—…s upon Oath commit to prison upon refusal of obedience to their Decrees they are to meet once a week at the Assurance Office or some other convenient publique place and no Fees at all are to be exacted by any person whatsoever There lyes an Appeal from their Sentence to the Lord Chancellor or Lord Keeper but the party must deposite the moneys decreed and then though the party be imprisoned he may be discharged and then it lyes in the Lord Chancellors or Keepers Breast to affirm or reverse and to award the party assured double costs No Commissioner being party Assuror can act by vertue of this Commission nor untill he hath taken his Corporal Oath before the Major and Court of Aldermen To proceed uprightly and indifferently between party and party XVII This was a good Act had it been as carefully penn'd as was intended for there were many things in which this Act did not extend to First Any man may at this day make a private Pollicy notwithstanding this Act which is as good and effectual in Law to all intents and purposes as one made and entred in the said Office and that such a Pollicy might and may be now sued at the Common Law Secondly The number of Commissioners being so great that there could be no Court without 5. at the least and without a Court they neither could summon parties or examine witnesses and that was very difficult to get Thirdly If the parties or witnesses refused to appear they had no power to punish the party for the delay with costs or otherwise which was very mischievous Fourthly No Commissioner could sit before he was sworn Commissions and the Commissioners being often renewed it was a trouble to be attending a Court of Aldermen which was difficult sometimes of the year to get Fifthly Though they had power to commit the party who refused to obey their Decree yet they had no power to make any Order against the Ship Which matters being taken into consideration it was Enacted That 3. Commissioners whereof a Doctor of the Civil Law and a Barrister of 5. years standing to be one should make a Court and to act as any 5. before might have done They have likewise power now given them to summon parties and witnesses and upon contempt or delay in the witnesses upon the first summons and tender of reasonable charges and in the parties upon the second summons to imprison offendors or give costs Every Commissioner is now to take his Oath before the Lord Major to proceed uprightly in the execution of the said Commission and any of them may administer an Oath so as the adverse party may have notice to the end such person may be fairly examined Commissions may issue out of the Court of Admiralty for examining of witnesses beyond Seas or in remote places by directions of the Commissioners and Decrees may be made against body and goods and against Executors and Administrators and Execution accordingly and assess Costs of Suit as to them shall seem just But Execution cannot be against Body and Goods for the same debt but the party must make his Election as at the Common Law XVIII But these Statutes took not away that Cognizance which the Courts at Westminster claymed upon such Contracts by the Common Law but onely gave this new erected Court a concurrent Jurisdiction with those at the Common Law for though the loss happened out of the Realm yet they had Jurisdiction of the Cause And therefore if an Action is brought upon a Pollicy of Assurance though the loss happened at Sea yet the Jury shall enquire for the loss is not the direct ground of the Action but the Assumpsit The Admiralty have likewise put in if not for an absolute Jurisdiction yet at least a concurrent one yet both have
a restriction which perhaps in the end may destroy Society however this hath its quantum for though harmless Passage may be excepted in the first Institution of Dominion yet that is to be understood when leave is granted and though fear of the multitude which is to pass cannot take away that Prince his Right thorough whose Territories or Seas they go yet it follows as naturall that in the Institution of such liberty that Prince or People may provide and if they have any probable or any reasonable cause interdict their passage till security or Hostages are pledged for their peaceable passage nay without declaring their reason may interdict them absolutely any manner of passage if there be any other way to pass in safety And therefore at this day by the Laws of England the King may interdict any Nation or People whatsoever to pass through his Seas without leave first obtained to that purpose and may visit all Ships be they of War or of Trafick that shall occur or be in the same III. Nor is passage onely due to Persons but to Merchandize also for no man hath Right willfully to obstruct the way of Commerce to any Nation with any other that is remote because the permission of Trade is for the interest of humane Society and is not discommodious to any one and to that purpose Philo speaks On the Sea all Ships of burden safely pass according to that right of Commerce which is between all Nations arising from the desire of Natural Society while they supply one another mutually which the one wanteth and the other can spare for envy hath never invaded either the whole world or the greater parts thereof And Plutarch speaking thus of the Sea This Element hath made our life sociable and perfect that otherwise would be wild and without correspondence it supplyes our wants with mutual ayd and by exchange of things needful it procures fellowship and friendship And the wisdom of God is highly to be admired who hath not granted all things to every Land but hath distributed his gifts to several Countries that men having need of one another might maintain Society for their Common good therefore hath he endowed Man with knowledge and understanding to invent and build Ships to govern and guide them by those Lamps of Heaven and other Instruments of his Divine Wisdome enabling thereby the Merchant to convey to all what any place affords according to that of the Poet What Nature any Land denyed By Navigation is supplyed But as the Sea is free and open for Traders yet nevertheless the Passengers are subject to such Restrictions Laws and Ordinances as those Soveraign Princes shall make of force in those places where they have an accession of Property or Soveraignty IV. But admitting that such free Passage may be granted as above whether Tribute may be imposed by him that Rules the Land upon Merchandize passing by Land or by River or by part of the Sea which may be called an Accession of the Land that is the place thorough which they pass is as much under the absolute Jurisdiction of the Prince as the very Land it self Certainly whatsoever Burdens have no relation to the Merchandise no equity suffers the same to be imposed on the same neither can Poll-money put on the Inhabitants to sustain the Charge of the Commonwealth be exacted of Passengers V. Nevertheless if either to secure the Passengers Goods and Vessels from Pyrats and others or for the Erecting of Beacons Light-Houses and other Sea-Marks and such like there indeed some compensation may be laid upon the Commodities or Ships passing thorough so that the measure of the cause be not exceeded Or as my Lord Coke observes in the case of the Halage money it be reasonable for upon that depends the Justness of Tributes and Toll And upon those Reasons the Venetian in the Hadriatique the King of Denmark in the Baltique Sea does demand the same And the King of England may do the like in the Chambers of his Empire and that by his Prerogative for the same is not so much compulsory to any to pay but to them that will take benefit of such accommodation Strabo relates That the Corintbians even from the most ancient of times received Tribute of the Commodities which to avoid the compassing of Malea were carried by Land from Sea to Sea So the Romans received a price for the passage of the Rhine But this Right of imposing on Ships and Goods passing thorough some Territories is found cruel especially when they must pass thorough the Territories of a powerful and fierce People then it is heavy to the Merchant to compound for it 's often done on hard and grievous terms The End of the Second Book CHAP. I. Of Freedom Bondage Slavery Erile and Abjuration I. Of Freedom by the Law of Nature and of Bondage Slavery or Captivity introduced by the Law of Nations II. Of the Actions that subject Man to Bondage III. Of the Dominion over Slaves Bond-men and Captives IV. Of the Cause or Reason of such Dominion V. That this Right or Dominion was not a Law universal VI. Of Bondage or Slavery where discontinued by the Christians and Mahomitans VII Of a Servitade at this day standing with the Laws of a Christian Common-wealth VIII Of Manumission and Freedom by the Hebrew and Roman Law and by the Laws of England IX Of Disfranchising the several ways X. Of Abjuration and Exile and what operation it hath XI Of Freedom in Cities and Corporations in reference to Merchants Traders and Foreiners I. IN the primitive state of Nature no men were Servants yet it is not repugnant to natural Justice that by the Fact of man that is by Covenant or Transgression Servitude should come in therefore Servitude is brought in by the Laws of Nations II. Hence it is That those that will yield up their persons or promise Servitude are accounted Slaves so likewise all that are taken in Publick War and brought within the Guards of their Conquerors nor is transgression necessary but the Lot of all is equal after the War is begun even of those whose ill fortune subjected them to be deprehended within the Enemies Bounds nor are they Servants only themselves but all their Posterity for ever III. The Priviledges of this Right or Dominion are infinite since there is no suffering which may not be imposed on such nor work which may not every way be extorted from them So that even the Cruelty of Masters became almost unpunished till the Municipal Laws of Countreys set Bounds to their rigour and power Nor are the persons become theirs only that have the power of them but also all that they have for such unhappy persons can have nothing of their own Hence it was That that excellent Law in favour of such was introduced by the Romans called Legis Corneliae which was when a Captive intra presidia
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