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
made of the Danes Goods in his Ship the Dane afterwards coming into England and having intelligence of the matter prosecutedthe Fisherman in the Admiralty and although Ignoramus was found yet they there detained him upon which a Habeas corpus was prayed but denyed by My Lord Coke Chief Justice for no other reason but because the truth of the matter was opened which gave the Court cause to supect him of Pyracy otherwise if he had moved barely upon the Ignoramus found quod nota Pasch. 13 Jac. in B. R. the King vers Marsh Bulstrod 3. part fo 27. CHAP. V. The Right of the Flagg as to the acknowledging the Dominion of the British Seas I. Considerations general as in reference to the same II. Whether Princes may have an exclusive property in the Sea III. That such an exclusive Dominion may be and proved IV. Of the Sea whether capable of Division as the Land general V. Considerations general as in reference to Maritime Cities touching Sea Dominion VI. Of the Sea by reason of its instability whether capable of subjection VI. Of the Dominion of the British Sea asserted long before and ever since the Conquest of this Isle by the Romanes VIII The duty of the Flagg but a consecutive acknowledgement of that right and of the Ordinance of Hastings declaring that Customary obeysance IX Considerations had on some Treaties in reference to the asserting the duty of the Flagg X. Of the extent how far that duty is required and payable XI Of the duty of the Flagg not a bare Honourary salute but a Right XIII Of the importance and value of the same as well in Nations Forraign as in England XIII Of the duty of the Flagg not regarded as a civility but commanded as a duty XIV Of the importance of that acknowledgement I. AFter the Writings of the Illustrious Selden certainly it 's impossible to find any Prince or Republique or single Person indued with reason or sence that doubts the Dominion of the British Sea to be intirely subject to that Imperial Diadem or the duty or right of the Flagg which indeed is but a consecutive acknowledgment of that antient Superiority yet there has not been wanting some who though they have not questioned the former have highly disputed the latter But there are some fatal periods amongst our Northern Regions when the Inhabitants do become so brutal and prejudicate that no obligation of Reason Prudence Conscience or Religion-can prevail over their passions especially if they become the devoted mercinaries of an implacable Faction in opposition to all that can be called either just or honourable we need not reap up the carriage of that late insolent Son of a Tallow Chandler whose deportments made him no less insupportable at Home then he was amongst Forreign Princes the testimonies of his greatest parts and abilities being no other then monuments of his malice and hatred to this Nation and records of his own folly But Princes are not to be wrangled out of their antient Rights and Regalities by the subtil argument of Wit and Sophistry nor are they to be supplanted or overthrown by malice or Arms so long as God and Good Men will assist in which His Sacred Majesty did not want when he asserted his Right with the Blood and lives of so many thousands that fell in the dispute II. That Princes may have an exclusive property in the Soveraignty of the several parts of the Sea and in the passage Fishing and shores is so evidently true by way of fact as no Man that is not desperatly impudent can deny it the considerations of the general practise in all Maritime Countries the necessity of Order in mutual Commerce and the Safety of Mens persons Goods and lives hath taught even the most Barbarous Nations to know by the Light of Human reason that Laws are as equally necessary for the Government and preservation of the Sea as those that negotiate and trade on the firm Land and that to make Laws and to give them the Life of Execution must of necessity require a Supream Authority for to leave every part of the Sea and shores to an Arbitrary and promiscuous use with a correcting and securing power in case of wrong or danger is to make Men with the like condition of the Fishes where the greater devour and swallow the less And though the Sea is as a High-way and common to all yet it is as other High-waies by Lands or great Rivers are which though Common and Free are not to be usurped by private Persons to their own entire service but remain to the use of every one not that their Freedom is such as that they should be without protection or Government of some Prince or Republique but rather not exclude the same for the true Ensign of liberty and freedom is protection from those that maintain it in liberty IV. And as the Sea is capable of protection and Government so is the same no less then the Land subject to be divided amongst Men and appropriated to Cities and Potentats which long since was ordained of God as a thing most natural whence it was that Aristotle when he said That unto Maritime Cities the Sea is the Territory because from thence they take their sustenance and defence a thing which cannot be unless part of it might be appropriated in the like manner as the Land is which is divided betwixt Cities and Governments not by equal parts or according to their greatness but according as they are able to Rule Govern and defend them Berne is not the greatest City of Switzerland yet he hath as large Territory as all the rest of the twelve Cantons put togetether The Cities of Noremberg and Genoa are very rich and great yet their Territories hardly exceed their Walls and Venice the Mistress and Queen of the Mediterranian was known for many years to be without any manner of possession in the firme Land V. Again on the Sea certain Cities of great force have possessed large quantities thereof others of little force have been contented with the next Waters Neitheir are there wanting examples of such notwithstanding they are Maritime yet having fertile Lands lying on the back of them have been contented therewith without ever attempting to gain any Sea Dominion others who being awed by by their more mighty Neighbours have been constrained to forbear any such attempt for which two causes a City or Republique though it be Maritime yet it may remain without any possession of the Sea God hath instituted Principalities for the maintenance of Justice to the benefit of Mankind which is necessary to be executed as well by Sea as by Land Saint Paul saith that for this cause there were due to Princes Customs and Contributions It would be a great absurdity to praise the well Government and defence of the Land and to condemn that of the Sea nor doth it follow because of the vastness of the Sea that it is
may receive some detriment which cannot be maintained amidst the contestations which happen in Conferences But if an Ambassador be deputed as Lievtenant to a Prince there indeed such Commissioner is not bound to treat but only with the Prince himself and so it was where the Bishop of Gurgia who was deputed by the Emperor to Pope Julio the Second the Pope commissionated 3 Cardinals to treat with him but the Bishop having notice in what quality he was like to be received commissionated 3 Gentlemen to confer with them excusing himself upon other affairs which afterwards was explained that he came not as a single Ambassador but as a Livetenant to the Emperor to the which Quality he had been received at Rome by the Pope V. The Deputies being assembled their Seats are considerable they having no power to quit any thing of the ranke which their Masters ought to hold and by the Laws of Treaties the first place is at the head or end of the Table if there be one the second is the first on the right hand and the third is the first on the left hand of him that is at the end and if there be many Deputies to one Prince they usually sit at one side to have the more facility to confer together if it be needful VI. Treaties which are made with our Neighbours as Friends are called Treaties of Alliances equal or unequal The equal is either of single Friendship only for the entertainment of Traffique or for aide and succour that of succour is for the Defensive or offensive and sometimes for both with or against all Men or against some certain Princes and Republiques and there Alliances are contracted either from Estate to Estate and for the preservation of the Estates of each other in which case by the death of the Prince they may not be interrupted Or else they are contracted betwixt Prince and Prince and then the death of one suspends till a new Treaty hath confirmed it unless there is a time certain prescribed by the Treaty to the which the Alliance must continue after the death of the Prince or else they are made from an Estate and Prince where the death of the Prince does likewise if not dissolve yet at least suspend till a new Treaty of Confirmation of the precedents although by the Laws of England Rex non intermoritur VII Sometimes Alliances are contracted for an Enterprize and for one effect only in the part which the Allies are interressed and such is generally called League which in England have been sometimes confirmed by Act of Parliament Leagues commonly are offensive but in effect they tend to attempt against some one and in the bottom are lodged Articles of secresie for the Enterprise and such was that of Cambray against the Venetians in which they borrowed the pretext of Religion and the Peace of Christendom VIII The ordinary causes for which Princes and Republiques make Leagues they are either to facilate a Conquest as that that was made between Lewis the 12th and Ferdinand of Arragon for the Realm of Naples Or to ballance the Forces of one that is more mighty in hindering him that he grow not greater but Arms ought not to be taken to diminish such a Neighbours power for that fear is uncertain but prudent Leagues may be made in diminishing their power The English made a Lague to succour the Hollanders not only to ballance the growing opulancy of the Spanish Monarchy but likewise to encrease her own by the Alliance of the Dutch Quid sequitur Again Leagues may be made for the procuring of a general Peace by way of Mediation of their Neighbours in War and such was that League of Union propounded by His now Sacred Majesty and afterwards concluded betwixt him and the States General of the United Provinces for an efficatious Mediation of Peace between France and Spain his Sacred Majesty of Britain having a prospect to what afterwards happened and of a War wherein most inevitably the same must involve the most of the Princes in Christendom in to the affecting of which Peace his Majesty and the States General did obtain a promise from the French King to the Dutch to lay down Arms on condition the Spaniards would formally and solemnly by a Treaty of Peace quit to him all those Places and Forts together with the Chastellenies and their appurtenances which they by force of Armes had taken in or fortified in the then last years Expedition or otherwise that the Spaniard be brought to transfer to the French all their remainder in the Dutchy of Luxemburg or to the County of Burgundy together with Cambray and Cambresis Douay Ayre St. Omers Bergue St. Avinox Fuernes and Lynk with the Bailywicks Chastellenies and all other their dependancies and the French King to restore to the Spaniard all Places Territories which they have by Armes taken since their enterance into Flanders on condition that the States General do reciprocally undertake and secure to the French to prevaile with the Spaniard to consent to the same conditions which once effected would as was hopt initiate the tranquility of and interest not only of of two Warring Crownes but of all other the Princes of Christendom To the effecting of which there were several Articles agreed and likewise it was agreed that if a Peace should happen to be made his Majesty and the States General should become Warranties and a Place left for any other Prince or State to come into the same and who should think it their interest to keep the Peace of Christendom undisturbed and to restore the Low-Countries to their tranquillity there was provision made likewise by the same for the Forces of each of the Warrantees to be used against those that should break and violate the same oblidging them to cease the violence and repair the party injured IX A Defensive League which hath no other benefit but a necessary defence and in the which Mean Estates are in a manner equally interessed last usually longer then an Offensive League which is voluntary and from the which either of the Confederates will easily part when he hath more interest So as in ballancing the interest of the one and the other he that shall find himself accompanied with distrust and an opinion to be irreconciliable to the common Enemy generally proves the most firm in the League The Wisdom Courage Means and Constancy of the Prince or State is to be considered so likewise of the distance of the Places as well in regard of those with whom they unite as of those against whom they make the Leagues Leagues having no other limitation but the end of the Enterprise for which they were made have admitted many large debates in cases of accident For instance if an Enemy shall take the Countrey for the defense whereof the League was made the Question has been whether the Confederates be bound to assist him who hath lost it in the
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
others by that licence which the Law of War granteth nor ought any Person to be moved with this that such being taken are punished with death for that proceeds not from their having offended against the Law of Nations but from this that by the same Law every thing is lawfull against an Enemy And every one as it is for his own profit determineth either more rigourously or gently but that Spies are both lawfull and practable there is no question for at this day by the generall instructions of Fleets there is alwaies out of each Squadron some Frigots or Ships appointed to make discovery of the Enemy and upon sight to make saile and to stand with them in order to the taking cognizance of their Force as well Ships of War as Fire-Ships and in what posture they lay which being done those detecting Frigots are to speak together and to conclude on the report they are to give which done they return to their respective Squadrons such Ships in such service are not oblidged to fight especially if the Enemies Force exceed them in number or that they shall have an apparent advantage VIII Again it is not lawfull for any be he friend or neuter to relieve an Enemy much less for a Souldier or Mariner in pay to supply him that conspires the destruction of my Countrey is a liberality not to be allowed of he is to be accounted an Enemy that supplies the Enemy with necessaries for the War and therefore by the Laws of War is so to be esteemed and by the Laws of England if any Person in the Fleet relieve an Enemy or Rebell in time of War with Money Victuals Powder shot Armes Amunition or any other supplies whatsoever directly or indirectly shall suffer death IX Ships being assaulted and taken as prize all the Papers Charter-parties Bills of lading Pass-ports and other Writings whatsoever that shall be taken seized or found aboard are to be duely preserved and not torn or made away but the very Originalls are to be sent up entirely and without fraude to the Court of Admiralty or to the Commander appointed for that purpose in order to the condemnation of the Prize upon pain of the Captors loosing their share in the Prize and also subject to such other punishment as a Court Marshall shall think fit X. The Right of taking of spoil was approved of GOD within these naturall bounds which have been already mentioned is further evinc't by the appointment that GOD in his Law concerning the Acquisition of Empire over the conquered after refusal of peace All the spoil thereof shalt thou take unto thy self and thou shalt eat the spoil of thine enemies which the LORD thy GOD hath given thee Hence it is that things taken from the Enemy presently become theirs that take them by the Law of Nations and such acquisition is called Natural for not any cause but the naked fact is considered And thence a Right springeth for as the Dominion of things began from Natural possession and some print of the same remains in the things taken in the Land the Sea and the Air so likewise of things taken in War but though this gives a Right to the Captors yet that must be understood to the Soveraign or to the State that imploy'd them and not to themselves but if they have any share of the Prize the same proceeds by the condiscention or grant of the Soveraign which may be enlarged or abridged as occasion serves and therefore by the Laws of England Ships of War having a Prize the goods and all manner of lading is to be preserved till adjudication shall pass but that is to be understood where the Ship voluntarily yields but Ships whom they shall assault and take in fight or prize the pillage of all manner of Goods and Merchandizes other then Arms Ammunition Tackle Furnitures or stores of such Ships as shall be found by the Captors upon or above the Gun-deck of the Ship become theirs but this is to be understood where such Prize may lawfully be possest for there are times when such are not to be meddled with and therefore it is against the rules of War in fight if some of the Enemies Ships are there disabled yet those Ships that did so disable them if they are in a condition to pursue the Enemy cannot during the fight take possess or burn such disabled Ships and the reason is least by so doing some more important service be lost but they are to wait for such booty till the Flagg-Officers shall give command for the same Vluzzali King of Algier in the famous Bataill of Lepanto having behaved himself very valiantly there against the Christians that he destroy'd severall of their Galleys and others he took amongst the rest the Galleys of Pietro Bua of Corsa of the Prior of Messina and Ludovico Tipico of Trahu and Benedeto Soranza the which he towed after him before the Battle was compleated but that getting proved the loss both of the one and the other for the Turks out of coveteousness of the plunder or otherwise thronging into them accasioned their taking fire in which the Victors in those flames became Victimes and after follow'd the totall rout of the Ottoman power XI It is almost impossible that in Ships of War which in these daies carry so considerable force in Men but there will be some amongst them that have heads of knavery and fingers of Lime-twigs nor fearing to steal that from their Prince which is applicable only for the good of their Countrey such sort of Night-wolves when caught are to be severely punished and therefore to steal or take away any Cables Anchors Sails or any of the Ships Furniture or any of the Powder or Arms or Amunition of the Ship subjects the offender to the pains of death or to such other punishment as the quality of the offence shall be found by a Court Martial to deserve XII By the ninth Article Forreign Ships or Vessels taken as Prize without fighting none of the Captains Masters or Mariners being Forreigners shall be stripped of their cloaths or in any sort beaten pillaged or evil entreated and the Persons so offending being oblidged to render double damage this Law most expresly doth not extend to those that obstinatly shall maintain a Fight for most certain by the Law of Arms if the Ship be boarded and taken there remains no restriction but that of charity and if a Ship shall persist in the engagement even till the last and then yield to mercy there has been some doubt whether quarter ought to be given to such for they may ignorantly maintain with courage a bad cause but Captives and those that yield or desire to yield there is no danger Now that such may be justly killed there must be some antecedent crime and that such a one as an equall Judge would think worthy of death and so we see great
in his Chariot adorned and crowned with the Victorious Laurel the Senators with the best of the Romans meeting him his Souldiers especially those who by their valoor had purchast Coronets Chains and other Ensigns of reward for their conduct and courage following him but what alas could these to the more sober represent any other but horror since the centers from whence the lines were drawn could afford nothing but death slaughter and desolation on those who had the Souls and Faces of Men and if it were possible that that Blood which by their Commissions was drawn from the sides of Mankind and for which they made those Triumphs could have been brought to Rome the same was capable of making of a Source great as their Tiber but Policy had need of all its Stratagems to confound the Judgement of a Souldier by excessive Praises Recompenses and Triumphs that so the opinion of wounds and wooden-legs might raise in him a greater esteem of himself then if he had an entire body To allure others something also must be found out handsomly to cover wounds and affrightments of death and without this Caesar in his Triumph with all his Garlands and Musick would look but like a victime but what sorrow of heart is it to see passionate Man a ray of Divinity and the joy of Angels scourged thus with his own Scorpions and so fondly to give himself alarums in the midst of his innocent contentments as they of Holland but yesterday in the midst of their traffique and recreations did by the denying His Sacred Majesty his Right even that right the which his Ancestors had with so much glory acquired pul on their heads a War which that mighty Reâ—…publique by their greatest industry and wisedom hath not been yet able to quell the colerickness of War whereby the lustfull heat of so many hearts is redoubled stirs up the lees of Kingdoms and States as a tempest doth weeds and slimy seedment from the bottom to the top of the Sea which afterwards driven to the shoare together with its foam there coverts Pearls and pretious Stones and though the Canon seems mad by its continual firing and the Sword reeking hot by its dayly slaughters yet no good Man doubts but they even they will wheather out those storms in the midst of those mercyless instruments find an inculpatatutela who love justice exercise charity and put their trust in the Great Governour of all things CHAP. XV. Of Salutations by Ships of War and Merchant Men. I. Of salutation how esteem'd by some in this later age II. Of the same pay'd in all ages as an undoubted marke of Soveraignty of this Empire III. Of those Seas where this right is to be pay'd to the King of England's Flag IV. In what manner the King of England holds this Right and by whom to be pay'd V. Of those that shall neglect or refuse to do the same how punisht and dealt withall VI. Where his Majesty of Great Britain's Ships are to strike their Flagg and where not VII Of the saluting of Ports Castles Forts how the same is to be done and on what terms VIII Of Ships of War their saluting their Admiral and Commanders and Chief IX Of Ambassadors Dukes Noblemen and other Persons of quality how to be saluted coming aboard and landing X. The Admirals of any forraign Nation if met withall how to be saluted and answered XI Of the Men of War or Ships of Trade of any foraign Nation saluting his Majestie 's Ship of war how to be answered XII Of the saluting of his Majestie 's own Forts and Castles and when the salute cease XIII Of the objection that seems to be made against the necessity of such Salutations XIV Why Kingdoms and States attributes the effects not the cause of Rights to prescription XVI That Kingdoms and Reipubliques ought not to be disordered for the defect of Right in presumption and the objection in the 13 § answer'd XVII The inconveniency of war and the justifique causes of the same XVIII Of the causes not justifiable in war XIX Of Moderation and the utility of Faith and Peace I. AS reforming Powers in all Ages made it their chiefest work to take down the great Colossues and whatever else might be ombragious in the excrescences of Civile Pompe so we had some in this Age who by a new art of levelling thought nothing could be rightly mended and they planted unless the whole piece ravelled out to the very end and that all intermediate greatness between Kings and them should be crumbled even to the dust where all lying level together as in the first Chaos spades ought even to be put into the hands of those who were heretofore adorned with Scepters all outward tokens of honour and esteem which even from the first institution of Society seemed by an uninterrupted stream to be continued down to posterity even amongst the most barbarous Nations was by them totally deny'd the Hand the Hat the Knee being no other but outward signs of an inward respect being esteemed equal with Idolatry but that unhappy brood to whom whatsoever was crooked seemed streight and what was dark to them appears light are now not to be accounted Men with whom the question may admit of a debate whether Salutation is innocent necessary and praise-worthy since nothing of reason can be found in the foundation of their Religion Honesty or Conscience Therefore this Discourse is directed to Men II. First it is evident by what hath been said that the British Seas before the Roman Conquest ever belonged to the Isle of Great Britain they alwaies claiming and enjoying the sole Dominion and Soveraignty of the same which afterwards accrued to the Romans by Conquest and from them translated with its Empire to the succeeding Saxon Danish and Norman Successors and in all the Reigns of those Princes there was alwaies some markes of Soveraignty pay'd wherein the right of the same was evinc't and acknowledged III. Now those Seas which this Salutation or Duty of the Flagg are to be pay'd are the four circumjacent Seas in which all Vessels whatsoever are to pay that Duty according to the Custom of the same and the Ordinance of King John How far this Right is payable appears in the fourth Article in the Peace made lately between His Majesty and the States General of the United Provinces in these words That whatever Ships or Uessels belonging to the said United Provinces whether Uessels of War or other or whether single or in Flâ—…ts shall mâ—…t in any of the Seas from Cape Finisterre to the middle point of the Land Van Staten in Norway with any Ships or Uessels belonging to his Majesty of Great Britain whether those Ships be single or in great number if they carry his Majesty of Great Britain ' s Flagg or Jack the aforesaid Dutch Uessels or Ships shall strike their Flagg and lower their Top-sail in the same manner and with as much respect as hath at any
others may be had the changing of Countreys either barren or Morish for more fertile or healthfull which may justly be done as the case of the Old Germans as Tacitus relates so likewise to pretend a Tittle to a Land because it was never found out or heard of before that is if the same be held by a People that are under a Government nay though the Government be wicked or think amiss of GOD or be of a dull wit for invention is of those things that belong to none for neither is Moral Virtue or Religious or Perfection of Understanding required to Dominion but yet if a new Place or Land shall be discovered in which are a People altogether destitute of the use of Reason such have no Dominion but out of Charity only is due unto them what is necessary for life for such are accounted as Infants or Mad-Men whose right or property is transferred that is the use of the same according to the Laws of Nations in such case a charitable War may be commenc't XVIII To prevent all the sad calamities that must inevitably follow the ungoverned hand in War Faith must by all means be laboured for for by that not only every Common-wealth is conserved but also that greater Society even of Nations that once being taken away then farewell Commerce for that must be then taken away from Man for Faith is the most Sacred thing that is seated in the breast of Man and is so much more religiously to be kept by the Supream Rulers of the World by how much more they are exempted from the punishment of their sins here then other Men take away Faith and then Man to Man would be as Mr. Hobbs observes even wolves and the more are Kings to embrace it first for Conscience and then for Faith and Credit sake upon which depends the authority of their Government The Ambassadors of Justinian addressed their Seepch to Chosroes after this manner Did we not see yout here with our own eyes and pronounce these words in your ears we should never have believed that Chosroes the Son of Cabades would bring his Army and enter forceably into the Roman bounds contrary to his League the only hope left to those that are afflicted with War for what is this but to change the Life of Men into the life of wild Beasts take away Leagues and there will be eternall wars and wars without end will have this effect to put Men besides themselves and divest them of their Nature If then a safe Peace may be had it is well worth the releasing of all or many of the injuries losses and charges according to that in Aritotle Better it is to yield some of our goods to those that are more potent then contend with them and loose all for the common chances of war must be considered which if so the scope of the principall part of this First Book may be avoided and we let into that of Traffique and Commerce The end of the First Book CHAP. I. Of the various Rights and Obligations of Owners and Partners of Ships in cases private I. Of Navigation in general II. Of Owners their several Powers over those Vessels they are Partners in III. Where Ships are obliged to make a Voyage before they can be sold and what may be done when part protest against a Voyage IV. The Master how brought in by the Owners and the reason why in such a manner V. Where the Owners ought to be repaired for the Damages of the Master VI. Where Ships broke in pieces determine the Partnership as to the Vessel and where not VII Where a Ship shall be the Builders and where onely his whose Materials she was erected with VIII Where Property of the Vessel altered changes not that of the Boat IX A Ship for the act of Pyracy becomes forfeited yet if bona fide sold where the Property may be questioned X. Moneys borrowed by the Master where the same obliges the Owners and where not XI Where he that obtains an unlawful possession of a Ship shall answer the full Freight to the Owners XII And where the Owners shall have their Freight though they lâ—…ss their Lading I. IN the precedent Book having observed something of the Rights of Persons and of Things in a state of Nature and how necessarily they came at first to be appropriated and how equitably they are now continued in the possession of those to whom they are consigned by the donation of others and maintained or destroyed by the equity of those various Lawes which rules and governs them all which is justified by the Scripture it self It may not now seem improper to examine the private causes changing the same and of the contingencies and advantages that wait on that which we properly call Commerce The Great Creator no sooner had finished his Mighty Work and given Man that Dominion which he now enjoyes as well over the Fish in the Seas as the Beasts in the Field he was not forgetful of bestowing on him those things which were necessary for the government and support of the same creating at the same time Trees which grow as it were spontaneously into Vessels and Canoes which wanted nothing but launching forth to render them useful for his accommodation which afterwards he by his divine Genius inspired by that Mighty One finding Materials hath since so Compleated and Equipt as to render it the most beautiful and stupendious Creature not improperly so called that the whole World can produce which being not retarded by lett of Winds or other contingent Accidents submits it self to plow the unknown paths of that vast Element to brave all Encounters of Waves and Rocks to fathom and survey the vast emensities of the very World it self to People Cultivate and Civilize uninhabited and Barbarous Regions and to proclaim to the Universe the Wonders of the Architect the Skill of the Pilot and above all the Benefits of Commerce so that it is no wonder at this day to find Nations contending who should surpass each other in the Art of Navigation and to Monopolize if possible the very Commerce and Trade of the World into their hands and that all by the means of this most Excellent Fabrick II. Hence it is that Ships and Vessels of that kind being originally invented for use and profit not for pleasure and delight to plow the Seas not to lye by the walls to supply those of the Mountains as well as those on the Sea Coasts Therefore upon any probable design the major part of the Owners may even against the consent though not without the privity and knowledge of the rest Freight out their Vessel to Sea If it should so fall out that the major part protest against the Voyage and but one left that is for the Voyage yet the same may be effected by that party especially if there be equality in Partnership III. Owners by Law can no wayes be obliged to continue their
obliged to continue Partnership 2. 1. 3 The Master is obligeable by them 2. 1. 4 Not obliged to joyn in an Action 2. 1. 5 Property of the Ship followes the Owners of the Materials not of the Builders if it be built all with their Goods 2. 1. 7 Package ON what the same is to be paid and what Packers are to take 2. 13. 4 Pardon Of Felonies extends not to Pyracy 1. 4. 23 25 Petty Averidge When due 2. 2. 6 Planters Of the Right of Planting 3. 5. 2 3 Where they may dispose of the same by Will 3. 5. 4 Plunder Souldiers so doing may be slain by any man whom they shall attempt 1. 6. 10 Ports What 2. 14. 7 Within the Body of the County 1. 4. 23 Robbery committed in them not Pyracy ibid. Ports of Nations in Amity may deliver Ships brought in there by an Enemy 1. 1. 9 Neuter Ports the peace of them ought to be preserved 1. 2. 17 1. 1. 10 1. 3. 7 Ports not to be visited after a Warr begun by an Enemy 1. 3. 11 Ships driven in by Stress of weather not subject to reprize 1. 2. 1 Peace of them ought to be kept 1. 5. 14 Possession The highest Title that men can pretend to what they enjoy 3. 5. 1 Yielded without fighting to be used civilly 1. 14. 12 Prize Ships may not alwayes be possest 1. 13. 10 Possession of a Ship creates no Title 2. 1. 11 Poundage What and how the same may be levied 2. 11. 10 Prerogative The King hath to dig in any mans ground for Salt-Petre 1. 1. 4 Prescription It s uncertain beginning 1 15. 14 15 Depends not on the Corporeal but Civil possession 1. 5. 13 Availes not in things that have been stolne 1. 4. 20 Prest The punishment of those that run away 1. 6. 7 Vide Marriners Primage When payable 2. 9. 4 Princes Responsible for Injuries publique and in prudence ought to redress Injuries private especially to Forraigners 1. 2. 8 Responsible by the Lawes of Nature for the neglect of suppressing Pyrats 1. 4. 2 Not bound to Treat personally with Ambassadours 1. 7. 4 The death of one determines not the Alliance 1. 7. 6 Their wisdome is to be considered in Leagues 1. 7. 9 Are not to examine one anothers others Title but it 's enough they are in possession 1. 7. 18 Though driven out of their Country may consent that Commerce shall be forbidden to his Subjects 1. 9. 4 The declared will of them cannot make all those of our Acts Sins 1. 12. 8 Nor can their Interdiction if disobeyed when their Subjects are possessed by their Enemy create an offence ibid. One of their Chiefest happinesses is a good General 1. 13. 1 How they govern themselves in Treaties 1. 7. 1 23 Bound to render Honour to their Equal ibid. Peace Ought to be purchas 't at any rate and to be maintained with the greatest Faith 1. 15. 18 Prescription Silences all Tribunals though its Inception is not known 1. 15. 14 It's necessary to have the force of Right 1. 15. 15 Prisage Not grantable away without Act of of Parliament 2. 8. 1 Not due till breaking of Bulk 2. 8. 3 Prisage becomes due if the property be changed though the Goods are not landed 2. 8. 6 Priviledge The Hanse Towns had several and when they determined and upon what occasion 2. 12. 1â—… Charta Mercatoria on what Considerations the same was granted 2. 12. 7 Prize Prize the 10th part justly due to the Admiral 1. 1. 9 Equally divided amongst the Captors 1. 2. 20 Prize Ships their Papers are to be preserved 1. 13. 9 May not alwayes be possest 1. 13. 10 Proclamation Whether necessary before a Warr 1. 1. 14 Having passed where the Goods of Friends may become Prize ibid. Prohibition Goods prohibited may subject the Vessel to a Forfeiture 2. 2. 17 Property When first introduced 1. 1. 3 Where the Property of the Vessel followes the Owners of the Materials 2. 1. 7 The property of the Ship and Goods of a Pyrats becomes his that takes them 1. 4. 11 19 Legalis Captio difference between that and Spoliatio as in reference to the changing of property 1. 1. 9 Cannot be questioned but by the Common Law 1. 10. 11 Can be questioned in the Admiralty if before sale the Ship was sold bona fide 2. 1. 9 Property of Goods altered by being taken and retaken in Warr 1. 4. 19 Property of Goods taken by Pyracy altered by sale in a Market Overt 1. 4. 21 Protection The true Ensign of Liberty 1. 5. 2 What and by whom accepted 1. 8. 2 Protest Subjects every of the Drawers that subscribed to answer the summe drawn 2. 10 16 Protest the use and meaning of the same 2. 10. 31 Pylott When he is discharged of his Duty and how obliged to answer for negligence or wilfulnesse 2. 9. 1 2 3 Pyrats What 1. 4. 1 Improperly called Enemies yet hold an equality 1. 4. 3 Are not to have succour 1. 4. 4 Overcome in the Ocean may be immediately executed by the Lawes of Nature 1. 4. 11 Or brought to a Port and the Judges refuse or the Captors cannot stay without prejudice may be executed 1. 4. 11 Pyrats onely questionable properly in that Country where the Ship is carried 1. 4. 14 Quarter NOt to be given to persons taken in Fire-Ships 1 14. 12 To demand it not repugnant to the Oath called Sacramentum Militare 1. 14. 13 Rebellion IN those that shall not strike to the King of England's Flagg 1. 5. 8 Reception Reception from an Enemy what is gain'd by the same 1. 1. 7 Release Of the Master where it binds the Owners 2. 4. 15 Renunciation of the Lading when it may be 2. 4. 13 17 Relief Appointed for Marriners and maimed Souldiers 1. 14. 28 Religion Whether lawful to plant the same by force of Arms 1. 1. 5 Renegado The Policy of the Turk in making them 3. 1. 6 Cannot be a Witness by the Lawes of any Christian Kingdome 3. 4. 7 Reprizals From whence derived 1. 2. 1 Cannot be against the Goods of Ambassadors 1. 2. 16 Not good without lawful Warrant or Commission 1. 2. 1 Ships taken by virtue of the same divests not the Owners of their property unless carried infra presidia 1. 1. 7 8 The causes precedent before the same are grantable 1. 2. 6 Reprizal Ordinary and Extraordinary by the Lawes of England 1. 2. 7 Persons exempt from the same 1. 2. 16 Reprizals granted and they commit Pyracy they forfeit their Vessel 1. 4. 2 Captains of Ships of Reprizal commit Pyracy cannot oblige the Owners for satisfaction 1. 14. 18 Request Ought alwayes to precede Reprizal 1. 2. 8 â—…etters of Request allot time certain 1. 2. 13 The same being made may sufficiently impower one Nation to execute the Judgments of another 3. 8 Restitution Where the same may be made of Ships regain'd from an Enemy 1. 1. 7 8 Restitution of Ships where the same