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
as the Conqueror should transmit to them all which are the tokens of a Nation by conquest made subordinate to the Conqueror and are part Heril and part Civil and though they may remain a Kingdom and absolute within themselves as to the making of Laws to the obliging each other yet they can no wayes impose on their Conqueror for though that be true which in Quintilian is alledged on the behalf of the Thebanes that that only is the Conquerors which he holds himself but an Incorporeal right can not be holden and the condition of an Heir and of a Conqueror is different because the right passeth to the former by the descent but only the thing by the last by virtue of the Conquest But certainly that is no objection for he that is master of the Persons is also master of the things and of all right which does belong to the Persons for he that is possessed dotâ—… not possesse for himself nor hath he any thing in his power who hath not himself and so it is if he leaves the right of a Kingdom to a conquered People he may take to himself some things which were the Kingdoms for it is at his pleasure to appoint what measure he will to his own favour from hence it is we may observe what fort of Empire that Kingdom is at this day VII Now Ireland before the same became united to the Crown by the Conquest of Henry the II. the natives were meer Aliens and out of the protection of the Laws of this Realm yet when once they became a conquered People and subject to the Crown of England and united ad fidem Regis there did arise their allegeance but that union neither made them capable of the Laws of England nor of their own till such time as the Conqueror had so declared them now what do they desire in order to revive their Government First they humbly beg of King Henry II. that since he was pleased that they should remain as a distinct Dominion that their ancient Customes or Usages should not continue that he would be pleased to ordain that such Laws as he had in England should be of force and observed in Ireland pursuant to which he grants them power to hold Assemblies by the three Estates of the Realm and that they should be regulated according to the institution and manner of the Parliaments in England should have the benefit of Magna Charta and other the great Laws of England and by such means puts them into a method of Governing themselves according to the known wayes of England and to make such Laws as should bind among themselves and by following the example of those of England their Judgment might be supervized and corrected according to the Justice and Laws of England by Writs of Error Appeal and the like Now here is no continuing or reviving their Ancient Government but the introducing a new one part Civil and part Heril nor indeed had they before any such thing as a Parliament there or general Assembly of the three Estates for when Henry the II. went over there were several Kings or Scepts who had their several and distinct Assemblies but when they submitted this great Assembly of Estates which he constituted was a collection out of all of them for their future well Government so that whatsoever modus of Regiment the Conqueror declared it was no more then for the well Governing of the Place and making such Laws as were necessary and proper amongst themselves But for them to impose by vertue of an Act of Naturalization upon an absolute Kingdom as England without the consent of the three Estates of the same surely was never intended much less effected the case is both great and curious therefore c. VIII By the Laws of France all Persons not born under legeance of that King are accounted Aliens and if they dye the King is entitled to the estate for all shall be seized into his Exchequer or Finances but if they make a Will the prerogative is disappointed Yet that extends only to Chattels personal in which Strangers passing through the same have greater immunities then Aliens there resident for Travailers dying without Will the Heirs or Executors shall have benefit and possession of their Estates IX The like Priviledge the Kings of England formerly claimed in the Goods and Estates of the Jews after their death if the Heir sued not and paid a fine to the King to enjoy them as by this Record appears Irratores super sacrum suum dicunt quod praedictum Messuagium fuit quondam Eliae le Bland qui c. diem claufit extremum quia mos est Judaeismi quod Dominus Reg omnia Cattalla Judaei mortui de jure dare poterit cui voluerit nisi propinquer haeres ejusdem Judaei finem feceret pro eisdem dicunt quod Dominus Rex dictum Messuagium dare poterit cui voluerit sine injuria alicui facienda si ita quod sit haeres dicti Eliae finem non fecerit pro Catallis ejusdem Eliae habendis c. But whether the same is now used may seem doubtful for the goods of Aliens escheat not at this day to the Crown but Administration shall be committed to the next of Kin. X. By the Laws of France Flanders Milan and the French County of Savoy though possessed by several other Princes yet the Natives of the same partake in the immunities with the natural born Subjects of France and if they dye without Will their Heirs claim their Estates the reason given because say they those Countreys were never alienated from them but were alwayes annexed to the Crown of France who acknowledges them to be their Subjects to this day But in England it is otherwise for those that are born in Gascoin Normandy Acquitain and those other Territories which were formerly the possessions of the Crown of England in which if any had been born when subject to the same they would have been natural born Subjects yet now are esteemed Aliens and so was the case vouched by Shard of a Norman who had robbed together with other English divers of his Majesties Subjects in the Narrow Seas being taken and arraigned the Norman was found guilty only of Fellony and the rest of Treason for that Normandy being lost by King John was out of the allegiance of Ed. 3. and the Norman was accounted as an Alien XI In France the Kings may there Denizize so likewise here in England but with this difference the Letters of Denization by those of France remove the totall disability and incapacity of the Alien But in England the Charter of Donasion or Denization is but a temporary partial and imperfect amotion of the disability of an Alien for though it puts the Person Indenizen'd as to some purposes in the condition of a Subject and enables a transmission hereditary to his Children born after the Denization
Carthaginians and again rendred upon request the Hollanders in the heat of the War between the Sweden and Polland never suffer'd themselves to be interdicted with either Nation the same State when they had War with Spain they intercepted the French Ships passing to or for Spain but restor'd them And Pompey in the History of the Mitridatie War set a Guard on the Bosphorus to observe if any Merchant sailed in thither whosoever did and was taken was surely put to death so Demetrius when he possessed Attica with his Army having blockt up Athens hang'd up both the Master and Commander of a Ship who attempted to bring in Corn the Hollanders having blockt up Dunkirk some English Merchants Ships did attempt to enter but were deny'd by the Hollanders Most certain if a Neuter Nation hath had notice of the War and caution given them as is usual not to supply the Enemy with counterband Goods as they call them if such be the case the prize is become absolute the Captors So Queen Elizabeth did when she seized on the 60 Sail of the Hansiatique Towns who were carrying of Goods ropas contrabanda to the Spaniard her Enemy she condemned them and made them absolute prize for as neuters are not compellable by the rigour of War to give any thing against their will so must they not against the will of each Party afford such things as may dammage one another for Persons or Nations having had notice of the War which is done and caution given sometimes by Proclamation or some other publick Edict signifying the right of their cause shall afterwards gather to and assist the Enemy whether associates neuters or Subjects the same yeilds a right so far as to them not only to the charge and dammage that may fall thereby by making them prize but may make them obnoxious to punishment For it is the duty of those that abstain from War to do nothing for the strengthning of him who maintains a bad cause whereby the motions of him that wageth a just War may be retarded and where the cause is doubtful they ought to shew themselves equall to both permitting passage Baking Dressing and affording provision for each Army or Navy L. Aemilius Praetor accused the Tejans for victualling the Enemy's Navy promising them Wine adding that unless they would do the like for the Navy of the Romans he would account them as Enemies but common experience hath taught Nations and Kingdoms when they declare a Neutrality to make provision by way of League with both the Nations at War that when it should happen the Armies of both or any draw towards their Territories it might be lawful for them to exhibite the Common offices of humanity to both The Venetians having so far prevail'd against the Turk in the Island of Candia that they held the City of Canea straightly besieg'd by Sea and Land whereby they had reduc'd it to great extremities it happened at that time to ride about 7 stout Merchant Men in the Port at Smirna the General of the Venetians being jealous of their joyning with the Turkish Armado desired to know their minds who answer'd they would prove neuter in the dispute but afterwards though at first the Captains all refused upon the threatning of the Grand-Seignior to lay an Embargoe on all the Goods of the English Nation in his Dominion and to make slaves of their Persons those Captains were forced to joyn with the Turkish Forces who beat the Venetians from before Canea and so reliev'd it the Venetians Embassador complain'd to the then Powers in England but could have no relief being answer'd that those Ships in the Turks power were Subject to it CHAP. II. Of Letters of Marque and Reprizal I. Of Reprizals generally considered and for what II. That Reprizals are unlawful by the Laws of Nature and the Romans III. That the same by the Laws of Nations are now become lawful IV. The advantage that accrues by the same V. The causes that requires the same VI. Of the things necessarily requisite for the observing them VII Reprizals ordinary and extraordinary according to the Laws of England VIII Of the Interest of Princes of granting them and Letters of Request IX The difference of injustice offer'd to Subjects and Forraigners when and where the one is concluded and not the other X. What is meant by denying of right and doing of injustice and where Reprizals take rooting and where not XI Of Reprizals awarded in cases ordinary XII Of Reprizals issuing forth in cases extraordinary XIII Of Letters of Request precedent allotting a time certain for satisfaction XIV Domicil not origination subject to Reprize XV. Reprizal not granted if the spoil was occasioned by War XVI Of Persons exempt from Reprizal by the Laws of Nations Canon and Civil Law XVII Where Ships or Goods are subject to Reprize and where not XVIII When right deny'd whether life is engag'd and whether Persons refusing to yeild may be slain XIX Goods taken by Reprize where the Property is altered and where otherwise XX. Where many Ships are present and one becomes Captor whether the spoil must be divided or remain his that became Master XXI Of the Captors duties afâ—…ter a Prize taken and its exemption from Custom XXII Restitution when to be made after the debt satisfy'd XXIII Contribution whether it can be by the Laws of England to him whose Goods are taken by Reprize XXIV Commissions awarded for the enquiring of depredations under which the Parties may probaably obtain recompence I. REprizals known to us by the word of Represalie or Leters of Marque in Law have other appellations as Pignoratio Clarigatio and Androlepsia c. In imitation of that Androlepsia among the Greeks to seize the three next Citizens of that Place whether the murderer had fled and was always given to him who required revenge of the offender the word Reprisals is from the French reprendre and reprise i. e. resumptio that is to re-take or take again one thing for another like our Saxon Withernam Though the Art is now become lawful by the Law indeed the consent of Nations yet it must have its Standard mark for the same cannot be done by any private authority but only by the power of that Prince or Republique whose Subject the injur'd Person is nor is the same grantable by authority but where the Party injur'd has Justice deny'd him or the same illegally delay'd II. By the Law of Nature no Man is bound for anothers Act but only the successor of his Estate for that Goods and Estate should pass with their Burdens was introduc'd together with the Dominion of things hence it is that the Son cannot be molested for the debt of his Father neither the Wife for the debt of the Husband nor the Husband for the debt of the Wife the same being against natural equity that one should be troubled for the debt of another So it is
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
precaution whether the same may be given to such not to come and attempting against such interdiction how dealt with and of punishment of those that shall hurt them by the Laws of England IV. Of the several causes that Princes or Reipubliques may reject such publique Ministers of State V. Where Ambassadors may be subjected to punishment by the Laws of Nations VI. Of the proceeding against them by Princes States at this day according to the practise of Nations VII Of the various proceedings against them by several Princes and Reipubliques illustrated in 15 Presidents of examples VIII Of the proceeding against them according to the pactise in England IX Ambassadors where they forfeit their Priviledge by the Laws of England X. Where actions committed by them though against the known Laws yet oblidges them not to a forfeiture of their Priviledge XI Of the duty of Ambassadors in cases Civil and what their Office includes for the King and Nation whom they represent XII Whether the House of an Ambassador can be a Sanctuary or whether he may exercise a Royal Jurisdiction over his Servants and Vassals whether the same proceeds from the Laws of Nations XIII Whether the Goods of an Ambassador may be seized for debt or other Contracts XIV Whether outrages committed by publique Ministers of State can subject them to punishment XV. Of the punishment of those that commit any outrage on them XVI Some observation of the immunities and Government by the Laws of Venice of their Ambassadors AN Ambassador and Agent is the same thing if we consider only the Function of their Charges only in this they differ an Agent hath charge to represent the Affairs only but an Ambassadors ought represent the Greatness of his Master and of his Affairs II. The right of Ambassadors is secured both by the Safeguard of Men and also by the protection of the Law Divine therefore to violate this is not only unjust but impious too and as Protection is given to the Legates of Supream Rulers by the Laws of Nations so by the Civil Law there is a protection likewise for Provincial Legates and Heraulds c. This Right of Legation was originally provided saith Livy for a Forreigner not a Citizen yet in Civil Wars necessity sometimes makes place for this right besides the Rule as when the People are so divided into equal parts that it is doubtful on which side the right of Empire lyeth as that unhappy spot of Flanders or when the right being much controverted two contend for the succession to the Throne for in this case one Nation is reckoned as two and so was the State of England when the House of York and Lancaster contended for the Crown nay this right of Legation hath been preserved that the very Messengers of Rebels have been protected as were those of Holland by Phillip of Spain So great a respect have Nations had in all times to such Men that even Pyrats and Robbers who make not a Society nor have any Protection by the Law of Nations and with whom neither Faith nor Oath as some conceive may be kept Faith being given them obtain the right of Legation as once the Fugitives in the Perynean Forest. III. Ambassadors may by a precaution be warned not to come if they dare they shall be taken for Enemies but once admitted even with Enemies in Arms much less with Enemies not in actual hostility have the protection and Safe-guard of the Laws of Nations and therefore their Quallity being admitted by Safe-conduct they are to be preserved as Princes and so it was declared in Parliament where the killing of John Imperial Ambassador from the States of Genoa was High-treason Crimen laesae Majestatis So likewise of A. de Walton the Kings Ambassador Nuncium Domini Regis missum ad mandatum Regis exequendum who was murdered by one John Hill for which offence it was adjudged High-treason and accordingly he was drawn hang'd and beheaded IV. On the other hand Ambassadors may not alwaies be received though alwaies they ought not to be rejected for there may be cause from him from whom they come as the Roman Senate would not admit of the Ambassage of the Carthaginian whose Army was then in Italy the King of Spain those of Holland and the then Pope the Ambassadors of Henry the 2d after the murder of Becket Arch. Bishop of Canterbury so likewise from the very Persons that are sent as Theodorus Athest whom Lisimachus would not give Audience to and Mr. Oliver Lewis the 11th's Barber whom they of Caunt refused So likewise where the cause of sending is suspected as in reference to disturbe the People or intentions rather to sow sedition then to conclude a Peace if such be their errand or not honourable or unseasonable as for those assiduous Legations which are now in use they may with very good right be rejected for the no-necessity of them appears by the Antient Custom whereto they are unknown The Venetian having admitted Henry the Fourth of France his Ambassador yet they interdicted him to come with the other Ambassadors to the Chappel till the King was reconciled to the Church of Rome V. By the Laws of Nations only unjust force is kept from the Bodies of Ambassadors for if the Laws of Nations be broken by him he is subject to punishment Yet the opinion of Nations and Men Eminent for Wisedom have been doubtful in this point and Presidents on both sides have been avouched one which seems to refute that position of punishing such Ministers of State the Ambassadors of Tarquin who had committed treason at Rome and as Livy observes were in the State of Enemies yet the Right of Nations as he calls it prevailed so far as to preserve them although in a case of hostility On the other hand Salust observes that Bomilicar one of the Carthaginian Ambassadors who came to Rome on the Publique Faith was adjudged guilty rather saith he by the Rules of Equity then by the Laws of Nations Equity that is the meer Law of Nature suffers punishment to be exacted where there is found a delinquent but the Laws of Nations except the Persons of Ambassadors for certainly their security out-weighs the profit arising from punishment which may be inflicted by him that hath sent him if he be willing if unwilling it may be exacted of him as an approver of the crime VI. Again as Ambassadors are not to render a reason of 〈◊〉 actions to any other but him by whom they are sent â—…nd it is impossible but by the reason of various Interests and other secrets of State which pass through their hands somewhat may be said which bears a show or face of crime which perhaps may prove otherwise yet the examining and tracing of the truth may be of a dangerous consequence and therefore if the offence be such as may be contemned it is usually to be
receive their proportions yet the fifth man may sue singly by himself without joyning with the rest and this as well by the Common Law as the Law Maritime XII A Ship in her Voyage happens to be taken by an Enemy afterwards in Battle is retaken by another Ship in Amity and restitution is made and she proceeds on in her Voyage the Contract is not determined though the taking by the Enemy divested the property out of the Owners yet by the Law of Warr that possession was defeazeable and being recovered in Battel afterward the Owners became re-invested so the Contract by fiction of Law became as if she never had been taken and so the entire Freight becomes due XIII If Freight be taken for 100 Tuns of Wine and 20 of them leak out so that there is not above 8. inches from the Buge upwards yet the Freight becomes due One reason is because from that gage the King becomes entitled to Custome but if they be under 8. inches by some it is conceived to be then in the Election of the Freighters to fling them up to the Master for Freight and the Merchant is discharged But most conceive otherwise for if all had leaked out if there was no fault in the Master there is no reason the Ship should lose her Freight for the Freight arises from the Tunnage taken and if the leakage were occasioned through storm the same perhaps may come into an Averidge Besides In Burdaux the Master stowes not the Goods but the particular Officers appointed for that purpose quod Nota. Perhaps a special convention may alter the case Most certain if a Ship Freighted by the great be cast away the Freight vanishes but if by the Tun or Pieces of Commodity and she happens to be cast away afterwards part is saved doubted whether pro rata she ought not to be answered her Freight XIV If a Merchant takes Freight by contracting with a Marriner that is not a Master he must be contented to sit down without any remedy against the Owners but perhaps such a Marriner for such act may subject himself to an action But if there be a fault committed by a Marriner which was hired or put in by the Master or Owners there for reparation the Owners become lyable XV. The Master is not bound to answer Freight to the Owners for passengers if they are found to be unable to pay If a Ship by Charterparty reciting to be of the Burden of 200 Tuns is taken to Freight for a sum certain to be paid at her return the sum certain is to be paid though the Ship amounts not to that Burden If a Ship is Freighted after the rate of 20 l. for every moneth that she shall be out to be paid after arrival at the Port of London the Ship is cast away coming up from the Downs but the Lading is all preserved yet the Freight is become due for the money arises due monthly by the Contract and the place mentioned is onely to shew where payment is to be made for the Ship deserves wages like a Marriner who serveth by the month and though he dyes in the Voyage yet his Executors are to be answered pro rata Besides the Freight becomes due by intendment on the delivery or bringing up of the Commodities to the Port of London and not of the Ship If the Master enters into a Charterparty for himself and Owners the Master in that case may release the Freighters without advising with the Owners but if the Owners let out to the Freighters such a Ship whereof J. S. is Master though the Master Covenant in the same Charterparty and subscribes yet his Release in that case will not bind the Owners but the Owners release on the other hand will conclude the Master And the reason is for that the Master is not made a proper party to the Indenture And so it was Rul'd where an Indenture of Charterparty was made between Scudamore and other Owners of the good Ship called the B. whereof Robert Pitman was Master on the one party and Vandenstene on the other party In which Indenture the Plaintiff did Covenant with the said Vandenstene and Robert Pitman and bound themselves to the Plaintiff and Robert Pitman for performance of Covenants in 600 l. and the Conclusion of the Indenture was In witness whereof the said Robert Pitman put his hand and seal and delivered the same in an Action of Debt brought upon the Bond for performance of Covenants the Defendant pleaded the Release of Pitman whereupon the Plaintiff demurred And it was adjudged That the Release of Pitman did not barr the Plaintiff because he was no party to the Indenture And the diversity in that case was taken and agreed between an Indenture reciprocal between parties on the one side and parties on the other side as that was for there no Bond Covenant or Grant can be made to or with any that is not party to the Deed but where the Deed indented is not reciprocal but is without a Between c. as Omnibus Christi fidelibus c. there a Bond Covenant or Grant may be made to divers several persons CHAP. V. Of Wreck I. Of Goods Wreckt as in relation to the alteration of the property by the Civil Law II. Of the preservation of Goods Wreckt and the punishment of those that should add misery to the condition of such persons so distressed III. Of Goods Wreckt their preservation according to the Lawes of Oleron and of England and of the punishment of those that shall not make restitution IV. Of contribution where the Ship perishes and the Goods are all saved and where not V. The King of Great Britain's Prerogative as in relation to Wreck and other Royalties of the Sea VI. Of Flotsam Jetsam and Lagan where the King shall have the same and whether by the grant of Wreck the same passes and where a Subject may prescribe VII Of Ships Wreckt and no Creature in them yet no Wreck and of Ships forsaken whether in Law accounted lost or wreckt or neither VIII Of the Sheriffs duty as in relation to Goods wreckt and of Owners their time of claiming their property IX Wreckt Goods not to pay Custome X. Of Wreck in the Isle of Wight not in the Admiral without special words IN matters of Wreck there is as it were a Contract between them which have lost their Goods by such misfortune and them upon whose Lands the Goods and Merchandize are driven that the same be restored to them or those that claym under them And therefore by the Civil Law it is precisely forbid that no man shall meddle with such Goods as are Wreck'd and such as are proved to have stolne any thing thereout are holden for Robbers for that such Goods being cast on Land and recovered out of the Sea remains still his who was the owner thereof and discend upon his Successor neither Escheat to the King
an Action as a Feme sole 4. He shall forfeit those Lands which he shall purchase in the Realm during his Banishment for he during his Banishment is as much disabled to purchase as an Alien for fit alienigena by his Banishment and he is observed to be in a worse Condition than an Alien for he is marked with Indignatio principis 'T is true he cannot forfeit neither Title of Honour nor Knighthood nor the Lands he had before Exile unless there be special Sentence or Judgment as that of the Spencers If the Father be in Exile this hinders not the Freedom of the Son for the same is not a thing descendable for should it be so then the Banishmens of the Father would make a Forfeiture of the Freedom but the Son has this Freedom by his own Birth as a Purchase and not by the death of his Father by descent Like the Case where J. S. hath many Children and then he confesseth himself a Villain to J. D. in Court of Record yet his Children formerly Born are Free-men and no Villains the Reason is because they were Free by their own Births but the Inheritance is Inthralled because it is to come to the Heir by descent XI A Free-man of a City or Burrough may be made divers ways as my Lord Cooke observes 1. By Service 2. By Birth by being the Son of a Free-man 3. By Purchase or Redemption At Bristol by Marriage Sir John Davies in his Irish Reports observes the same for Law St. Paul was born at Tarsus in Cicilia which was under the obedience of the Romans by vertue of which he challenged the priviledge of a Roman Citizen but it was accounted no more than a National Freedom like that of Calvin who claimed the general Freedom of an English-man being born in Scotland but under the obedience of the King of England but that Challenge made not St. Paul Free of the Private Customs Priviledges and Franchises of Rome no more than Calvins Birth made him a Free Citizen of London to the particular Customs of that City The King by his Letters Patents cannot make one a Free-man of London yet he may thereby make him a Free-man of his Kingdom If one be Born in a City of Parents that are not Free the Child hereby is no Citizen by Birth and if one be born of Free Parents out of the place of Priviledges as London c. he yet is a Free-man by Birth yet in the Charter Granted to Yarmouth the words were concessimus Burgensibus de magna Yarmutha de Villa praedict ' Oriundis that they should have such and such Liberties So that Special words may alter the Case London had many Royal Franchises granted them from time to time and were often by former Kings successively confirmed nor wanted they a share when the great Charter was granted to have their ancient liberties secured nor were the succeeding Princes slack in their Royal grants and confirmations but especially Richard the Second who in Parliament granted and confirmed to them all their ancient customes and liberties with this clause Licet usi non fuerint vel abusi fuerint and notwithstanding any Statute to the contrary amongst the number of their many Priviledges the freedom of the same was accounted of no small importance since in divers Parliaments it was very much aimed at and endeavoured to be impaired but at last they obtained a most gracious and Royal Confirmation in Parliament of their ancient liberties amongst which it is declared that no Merchant being a Stranger to the Liberty of the said City should sell any Commodities within the Liberty of the said City to other Merchant-Strangers nor that such Merchant-Stranger should buy of anyother Merchant-Stranger such Merchandize within the Liberty of the said City without forfeiture thereof saving that any Person Lord Knight c. may buy within the Liberties of any Merchant-Stranger Merchandizes in gross for their own use so that they do not sell them again to any other And as this City by Custom may pre-clude any Person not being free of the same to sell in such manner upon such pain so any other City which are Burroughs or Cities by prescription within this Realm may have the like Custom and the goods sould or bought by such may be subjected to forfeiture but the same cannot be good by Charter or Grant A compleat Free-man is such a one as hath challenged his freedom and taken the Free-mans Oath and is admitted into the Society and Fellowship of the Free-men Citizens and Burgesses otherwise he hath but a bare right to his freedom CHAP. II. Of Aliens as in relation to their Estates real and personal I. Of an Alien his ability and disability in the taking and enjoying of Estates real and personal II. Of his capacity in purchasing and disability to transfer by an hereditary descent III. Of the rules of descents according to the Laws of several Countreys IV. Of descents according to the rules of the Common Law of England lineal and collateral V. Of Impediments in one that is not the medius antecessor VI. Of Impediments in one that is the medius antecessor lineal and collateral VII Of the Statute of Natis ultra Mare and of issues born beyond the Seas VIII The Lord Cokes opinion that if an Allien has issue two Sons Denizons the one purchases Lands and dyes the other cannot inherit them debated and refuted IX Of Foreign births which do not create a disability X. Of Aliens not disabled by Law to bring either real or personal actions XI Of Office that must entitle the King to an Aliens Estate XII Of some particular immunities and other matters relating to an Alien AN Alien is one born in a strange Countrey under the obedience of a strange Prince and State and out of the legeance of the King of England and can have no real or personal action for or concerning Lands and therefore if he purchase Lands Tenements and Hereditaments to him and his Heirs albeit he can have no Heir yet he is of capacity to take a fee-simple but not to hold for the King upon Office found shall have it by his Prerogative So it is if he purchase Lands and dyes the Law doth cast the free-hold and inheritance upon the King But if he purchase or take a Lease for years of a House or Ware-house which is for the accommodating him as a Merchant-stranger whose Prince or State is in League with ours there he may hold the same for that the same is incident to Commerce And in that case if he departs and relinquishes the Realm the King shall have the same so it is if he be no Merchant The like Law is if he takes a Lease of Meadows Lands Woods or Pastures the King shall have the same for the Law provides him nothing but a habitation to Trade and traffique in as a Merchant II. Though he may take
by purchase by his own Contract that which he cannot retain against the King yet the Law will not enable him by an Act of its own to transfer by hereditary descent the Alien dying his issue a Denizon born the Land will not descend or to take by an Act in Law for the Law Quae nihil facit frustra will not give him an inheritance or free-hold by an Act in Law for he cannot keep it Therefore the Law will not give him 1. By discent 2. By courtesey 3. By Dower 4. By Guardianship And in respect of that incapacity he ressembles a Person Attaint but with this difference The Law looks upon a Person attaint as one that it takes notice of and therefore the eldest Son attainted over-living the Father though he shall not take by descent in respect of his disability yet he shall hinder the descent to the younger But if the eldest Son be an Alien the Law takes no notice of him and therefore as he shall not take by descent so he shall not impede the descent to the yonger Brother As for instance if there be three Brothers the eldest an Alien the other two naturalized and the middle Brother purchase and dyes without issue the younger Brother shall have the Lands III. Concerning the Rules of descents we are not to govern our selves therein by the general notions of love or proximity of nature but by the municipal Ltws of the Countrey wherein the question ariseth for the various Laws of divers Countreys have variously disposed the manner of descents even in the same line and degree of proximity For instance the Father certainly is as near of kin to the Son as the Son is to the Father and is nearer in proximity than a Brother and therefore shall he preferred as next of kin in administration to the Sons Estate According to the Jews for want of issue of the Son the Father succeeds excluding the Brothers and that hath been the use and construction of the Jewish Doctors upon numb 27. 9. but the Mother was wholly excluded 2. According to the provision of the Greeks for the succession or exclusion of the Father is left doubtful 3. By the Roman or Civil Law according to the estimation of the twelve Tables the Father succeeded in the purchase of the Son for want of issue of the Son under the title proximit agnato and so was the use but my Lord Cook supposes the contrary But taking the whole Institution of Justinian the Son dying without issue his Brothers Sisters Father or Mother do succeed him as well to Land as goods in a kind of Copercenary 4. According to the Laws of Normandy which in some things have a cognition with our Law his Brothers are preferred before the Father if the Son dye issueless but his Father before his Uncle 5. According to the Laws of England the Son dying sans issue or Brothers or Sisters the Father cannot succeed but it descends to the Uncle IV. There be two kinds of descents according to the Common Laws of this Realm 1. Lineal from the Father or Grand-father to Son or Grand-son 2. Collateral or transversed as from Brother to Sister Uncle to Nephew and e converso And both these again of two sorts 1. Immediate as in lineals from Father to Son 2. Mediate as in lineals from Grand-father to Grand-child where the Father dying in the life time of the Grand-father is the medium differens of the descent Collateral as in lineal from Uncle to Nephew or e converso And this meditae descent or meditate Ancestor though to many purposes it be immediate for the Father dying in the life of the Grand-father the Son succeeds in point of descent in the Lands immediately to the Grand-father and in a writ of Entry shall be supposed to be in by the Grand-father and not in the post cui This is called a mediate descent because the Father is the medium through whom the Son derives his title to the Grand-father In immediate descents there can be no impediment but what arises in the parties themselves For instance the Father seized of Lands the impediment that hinders the descent must be in the Father or Son as if either of them attaint or an Alien In mediate descents a disability of being an Alien or Attaint in him that is called the medius antecessor will disable a Person to take by descent though he himself have no such disability In lineal descents if the Father be Attaint or an Alien and hath issue a Denizon born and dye in the life time of the Grand-father the Grand-father dyes seized the Son shall not take but the Land shall escheat In Collateral descents A. and B. brothers A. is an Alien or attaint has issue C. a Denizon born B. purchases Lands and dyes without issue C. shall not inherit because A. which was the medius antecessor or medium differens is uncapable V. But in any descents the impediment in an Ancestor that is not medius antecessor from whom and to whom will not impede the discent As for instance the Grand-father and Grand-mother both Aliens or attaint of Treason have issue the Father a Denizon who hath issue the Son a natural born subject the Father purchases Lands and dyes the Son shall be Heir to the Father notwithstanding the disability of the Grand-father and yet all the blood which the Father hath is derived from his disabled Parents for they are not medii antecessores between the Father and the Son but paramont The Law does not hinder but that an Alien is of the same degree and relation of consanguinity as natural born Subjects or Denizons born the Son Father and Brother though Aliens the Son Father and Brother our Law takes notice of as well as natural born Subjects and so it was adjudged for he shall be preferred in Administration though an Alien as next of Kin. But in cases of Inheritance the Law takes no notice of him and therefore as he shall not take by descent so he shall not impede the descent to the younger Brother As for instance A an Alien B. and C. naturalized by Act of Parliament brothers B. purchases Lands and dyes sine prole C. shall inherit and not A. A. an Alien B. and C. his Brothers both naturalized by Act of Parliament B. purchases Lands and dâ—…es wâ—…th out issue the same shall not come to A nor to his issue though a Denizon but shall come to C. and his issue the Law taking no notice of A. as to impede the succession of C. or his issue though it work a consequential disability to bar the issue of A. parallel to what the Law calls corruption of blood which is a consequent of Attainder VI. Again in lineal descents if there be a Grandfather natural born Subject Father an Alien Son natural born subject the Father is made Denizon he shall not inherit the
Grand-father and if the Father dyes in the life of the Grand-father the Grand-child though born after the denization doth not remove neither the personal nor consequential impediments or incapacity of the Father In collateral descents the Father a natural born Subject has issue two Sons Aliens who are both made Denizons and dyes without issue the other shall not inherite him A. an Alien marries an English woman who is seized of Lands and has issue the Father and Mother dyes yet the issue may inherite the Mother non obstante the incapacity of the Father being an Alien VII The Statute de Natis ultra Mare declares the issue born of an English-man upon an English-woman shall be a Denizon yet the construction has been though an English Merchant marry a Forraigner and has issue by her born beyond the Seas that issue is a natural born Subject But if an English-woman go beyond the Sea and there marry an Alien and have issue born beyond the Sea that issue are Aliens If an English-woman marries an Alien beyond the Seas and than comes into England and has issue they are not Aliens but may inherit My Lord Cook in his Commentaries on Littleton seems to be of opinion that if an Alien has issue two Sons born in England one dying without issue the other shall not inherit him But the Law is otherwise taken at this day as I conceive the reasons that have been given are I. Though the descent from one Brother to another Brother be a collateral descent yet it is an immediate descent and consequently if no disability or impediment can be found in them no impediment in another Ancestor will hinder the descent between them That this is an immediate descent appears First In point of pleading one Brother shall derive himself as Heir to another without mentioning any other Ancestor Secondly According to the computation of degrees Brother and Brother make but one degree and the Brother is distant from his Brother or Sister in the first degree of consanguinity and no more by the Laws of England According to the Civil Law Brother and Brother make but one degree for the Brother is in the second degree from the Brother yet both make but one degree According to the Canon Law Frater Frater or Frater Soror sunt in primo gradu And therefore the Laws prohibiting marriage between Kindred in the fourth degree takes Brother and Sister to be the first degree of the four The Laws of England in computation of the degrees of consanguinity agrees with the Canon Law and reckons the Brother and Brother to be the first degree Herewith agrees the Customs of Normandy which though in some cases differs from the Laws of England yet herein and in divers other particulars touching descents they agree Another evidence to prove that the descent between Brother is immediate is this viz. the descent between Brothers differs from all other collateral descents whatsoever for in other descents collateral the half blood does inherit but in a descent between Brother the half blood does impede the descent which argues that the descent is immediate The Uncle of the part of the Father has no more of the blood of the Mother than the Brother by the second venter the Brother by the second venter has the immediate blood of the Father with the Uncle viz. the Fathers Brother has not but only as they meet in the Grand father the Brother of the half blood is nearer of blood then the Uncle and therefore shall be preferred in Administration It is apparent that if in the line between Brother and Brother the Law takes notice how the Father was the medium thereof the Brother of the second venter should rather succeed the other Brother because he is Heir to the Father therefore in a descent between Brothers the Law respects only the immediate relation of the Brothers as Brothers and not in respect of the Father though it is true the foundation of their consanguinity is in their Father or Mother Again if the Father in case of a descent between Brothers were such an Ancestor as the Law lookt upon as the medium that derives the descent from the one Brother to the other then the Attainder of the Father would hinder the descent between the Brothers But the Attainder of the Father does not hinder the descent between the Brothers the reason is because the Father is not such a medium or nexus that is look'd upon by the Law as the means deriving such a descent between the two Brothers As for instance of three cases two whereof evince the first preposition viz. That although the descent from one Brother to another Brother though it be a Collateral descent yet is an immediate descent and that if no disability or impediment arises in them no impediment in another Ancestor will hinder them The younger Brother has issue and is attainted of Treason and dyes the elder Brother has title to a petition of right dyes sans issue without a restitution the younger Brothers Son has lost that title for though the title were in the Ancestor that was not attaint yet his Father that is the medium whereby he must convey that title was attaint and so the descent was obstructed Henry Courtney had issue Edward and was attainted of Treason and dyed Edward purchased Lands and dyed without issue the Sisters and Heirs of Henry were disabled to inherit Edward yet neither Edward nor his Aunts were attainted or their blood corrupted yet because Henry was the medium through whom the Aunts must derive their pedigree and consanguinity to Edward who was attainted the descent was obstructed till a restitution in blood But if the Grand-father of Edward had been attainted and not Henry this would not have hindred the descent from Edward to the Aunts because that Attainder had been paramount that consanguinity which was between Henry and his Sister and that is proved by this third case William Hobby had issue Phillip and Mary and was attainted of Treason and dyed Phillip purchases Lands and dyed without issue it was adjudged in that case that non obstante the Attainder of William Hobby Mary should inherit because the descent and pedigree between Phillip and Mary was immediate and the Law regards not the disability of the Father If the Heir of the part of the Father be attaint the Land shall escheat and shall never descend to the Heir of the part of the Mother but if the Son purchase Lands and has no kindred of the part of the Father but an Alien it shall descend to the Heirs of the part of the Mother IX Those that are born sub side legiantia obedientia Domini Reges are not Aliens and therefore those that were born in Gascoyne Normandy Acquitaine Turnay Callice Guyan whilst they were under the Dominion of the Kings of England were natural born Subjects and
if they had been born in England and no man shall be received against an Act of Parliament to say the contrary Therefore if the Father an Alien has issue a Son born here and then the Son is naturalized the Son shall inherit If the Father a natural born Subject has issue an Alien who is naturalized the Father dyes the Son shall inherit III. Naturalization does remove all that disability and incapacity which is in Aliens in respect of themselves and so puts them entyrely in the condition as if they had been born in England The Relative terms as if born in England is generally used to supply the personal defect of the parties naturalized arising from their birth out of England and therefore shall never be carryed to a collateral purpose nor cures a disease of another nature as half blood illegitimation and the like but all diseases whether in the parties themselves or resulting from the Ancestor it cures Acts of Parliament of this nature may be so pen'd as to cure defects in the Father or Ancestor or in the parties themselves If restitution in blood be granted to the Son by Act of Parliament this cures that disability that resulted from the Fathers Attainder and that not only to the Son but also to the collateral Heirs of the Father the true reason of this is because the corruption of the blood by the Attainder is only of the blood of the Father for the Sons blood or coliateral Heir was not at all corrupted for the scope of the Act is taking notice of the Fathers Attainder does intentionally provide against and remove it for otherwise the same had been useless But in naturalization without express words it takes no notice of the defects in the Father or other Ancestor noâ—… amoves them And therefore such Acts of Parliament as take no other notice but of the Person naturalized's Forreign birth the same cures not any disability of transmission hereditary between the Father Brother or any other Ancestor resulting from the disability of them without actually naming of them As for instance the Father an Alien the Son naturalized by Act of Parliament the Father or any other Ancestor an Alien purchases Lands and dyes the Son shall not take by reason of the disability in the Father but there may be words inserted in the Act that may take away the impediment IV. Those that are born in Ireland and those that are born in Scotland are all alike for their birth are within the Kings Dominions and they are born under the like subjection and obedience to the King and have the like band of allegeance ad fidem Regis yet if a Spaniard comes into Ireland and by the Parliament is there naturalized though perhaps this may qualifie and cloath him with the title of a natural born Subject of Ireland yet it has been conceived that it will not make him a natural born Subject of England For the union of Ireland to that of England is different from that of Scotland for the first is dependant as a Kingdom conquered the latter independant Though Henry the II. after his Conquest of that Nation did remit over from England the Ancient modus tenendi Parliamentum enabling them to hold Parliaments which after was confirmed by King John yet that was by no other sorce then bare Letters Patents Now when a Nation is once conquered there remains no Law but that of the Conqueror and though he may incorporate such conquered Nations with his own and grant unto them their ancient Parliamentary wayes of making of Laws yet the Conqueror can no wayes grant unto them a power by vertue of such Grant or Confirmation as to impose upon his own Countrey for he himself before such Conquest could not make a natural born Subject without Act of Parliament and most certainly his Conquest adds nothing to his power though it does increase his Dominion V. Again Kingdoms that are absolute under one Prince ad fidem Regis there the Acts of each other are reciprocate and one naturalized by the Parliament of Scotland is as naturalized in England because Scotland is a Kingdom absolute but Ireland is a Kingdom dependant and subordinate to the Parliament of England for the Parliament in England can make an Act to bind Ireland but not e converso Now to be a Native of Ireland is the same as to be born in Ireland but that is by the Laws of Ireland but to be born in Ireland and to be the same as to be born in England must be by the Laws of England But there is no Law that hath enabled them with such a power as to naturalize further then their own Laws extend but the Law of Ireland does not extend in England therefore Naturalization in Ireland operates only in Ireland because of the failer of power VI. Again Kingdoms that are Conquered the Empire of the same may be acquired by the Conqueror only as it is in a King or other Governour and then the Conqueror only succeeds into his right and no further or also as 't is in the People in which case the Conqueror hath Empire so as that he may dispose of it or alienate it as the People themselves might for 't is one thing to enquire of the thing another of the manner of holding of it the which are applicable not only to corporal things but incorporal also For as a Field is a thing possessed so is a passage an Act a way but these things some hold by a full right of property others by a right of usufructuary others by a temporary right Again by the will of the Conqueror the Kingdom or Republique that is so conquered may cease to be a Kingdom or Common-wealth either so that it may be an accession of another Kingdom or Common-wealth as the Roman Provinces or that it may no wayes add here to any Kingdom or Common-wealth as if a King waging War at his own charge so conquer and subject a People to himself that he will have them governed not for the profit of the People chiefly but of the Governour which is a property of that we call Heril Empire not of Civil for Government is either for the profit of the Governour or for the utility of the Governed this hath place among Free-men that among Masters and and Servants The People then that are kept under such command will be alwayes for the future not a Common-wealth but a great Family hence it is that we may plainly understand what kind of Empire is that which is mixt of Civil and Heril that is where Servitude is mixt and mingled with some personal Liberty For if the People are deprived of Armes commanded to have no Iron for Agriculture to change their language and course of life and abstain from the use of many of their Customes to be confined to their own Houses Castles or Plantations not wander abroad to be governed by such Laws
to vindicate other mens injuries then our own by how much more it is to be feared that a man in his own by too deep a resentment may either exceed a measure or at least infect his mind however his right of punishing an equal remains still in those places where the People remain as in great Families and not in Cities or under some Government and therefore those that have now possessions of any Parts of the New World or American Isles till they have either voluntarily submitted to a Government or put them and their discovery into the hands or protection of some Prince that may exercise power there remains the old and natural right of punishing for offences So likewise where Persons shall be assaulted by Pyrats on the Seas if they be overcome they may be immediatly executed by the Law of Nature for otherwise there would be a Failer of power to punish such Besides the old natural Liberty remains in all Places where are no Judgments so where they are taken and brought to a Port and the Judge openly refuses the Trial of them or that a Trial of them cannot be had without an apparent detriment and loss to the Captors Justice may be done upon them by the Law of Nature VII Two Pyrats resolving to assault and rob the next Vessel they meet with not knowing each others condition or design encounter and the one happens to be overcome by the other the question is now whether the above mentioned right so far remains as that the stronger may execute him that he hath overcome Right reason dictates that the evil doer may be punished not who should punish him but that Nature sufficiently sheweth that it is most convenient to be done by him that is Superior yet doth it not demonstrate this to be necessary except Superior be taken in that sence that the evil doer be thought to have made himself thereby inferior to any other and to have as it were degraded himself from the order of men into the number of Beasts subject to no man and such are Pyrats who have no other denomination but Night-wolves or Beasts of Prey By Nature it is ordained That the better command the worse And Aristotle saith The worse are provided for the use of the better as well in Naturals as in Artificials It follows hence that at least a guilty Person ought not to be punished by another equally guilty to which purpose is that saying of Christ VVhosoever of you is without sin that is such sin let him throw the first stone Pertinent is that saying The Sentence can have no authority where he that judgeth is to be condemned From whence it follows that the right of punishing in such case at such time ceases VIII Kingdoms which are equal in power and having no dependance on each other cannot be commanded nor corrected of another but if there be a question to execute the Decree or Judgment of one in the Territory of the other there may issue forth a Commission of entreaty under the Seal of that Court where the Judgment was given or at least under the great Seal of the Prince directed to the Judges in that place where the the Defendant is resident and the Judge to whom the said Commission is directed may award execution according to the Laws of Nations And so it was adjudged where one having recovered a Debt before the Governour of Freisland Defendant upon that fled for England the Governour at the Request of the Plaintiff issued forth his Commission of Request directed Omnes Magistratus infra Regnum Angliae rogans to make execution of the said Judgment upon which the Judge of the Admiralty in England issued forth an Execution of that Sentence and the Defendant was taken upon which he brought his Habeas Corpus and adjudged the Sentence well executed by the Laws of Nations and according to the Common Law of this Realm So likewise if a Dutch-man takes up Goods at the Port of London and gives a Note under his hand for the payment of the same and then flyes into Holland the Vendor may apply himself to the Lord Major of London and upon proof of the delivery and Sale of the Goods the Lord Major making a Certificat of the same and sending it under the City Seal directed as above they of Holland will and do execute the same upon the Party Herein this last Case differs from the first for by the former if there should fall a question about the interpretation of the Judgment or Sentence the same cannot be done for they are not to examine the same and the reason is least the Stranger be induced at another time to do the like and so dissolve the Judgments whereof they should demand the execution the which would be done more through jealousy of the State then for any injustice in them besides the Judgments or Sentences which are matters of Record and of the greatest security in a Kingdom the presumption that they were justly given shall alwayes be understood IX But in the latter the same may be examined that is the Merchant may be heard as to his legal defence either to the lessening or discharging the debt or dammage but against the testimony certified no objection can be made but the same is admitted as legally proved But if there be a question of honour or life there they may not execute the Judgments of Forraign Judges especially if they have not kown the merit of the causes or seen the Informations or heard the Witnesses but more especially in England for there can in no respect whatsoever the life of a Man let his offence be never so hainous be brought to punishment without a legal Tryall and that by the producing of Witnesses viva voce to his face yet Princes for the respect they bear each other and for the Good of Justice though they cannot at the bear request of the Judges of another Prince put them to death yet they may for exemplary punishments which ought to be made upon the places were the fact was committed yield the natural Subject to his natural Prince unless the Prince to whom the fugitive is fled findes that he is unjustly pursued for in such cases he is not bound to yield them yea he is forbidden by the Law of God to restore a bound-Man which is fled into another Mans house to avoid the fury of his Master X. And as the same is in cases Forraign so likewise in those Estates that are under the Crown of England and therefore if a Man recovers against I. S. in the Kings Bench in England and then the Defendant flies over into Ireland the Judgment may be certified over into the Chancery in Ireland and they may by Mittimus send it into the Kings Bench there and they may award execution or otherwise the party may bring his Action of Debt on the same so the like has been done
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
up he must bear his equal share and proportion with the rest The Master cannot on every case of necessity impawn the Vessel or Furniture for if she be Freighted and he and the Owners are to joyn in the laying in of the provisions for the Voyage and parhaps he wants money a great sign of necessity yet can he not impawn the Vessel or Furniture any other or further then for his own part or share in her the which he may transfer and grant as a man may do an 8th or 5th part in Lands or Houses But such obligation of the Vessel must be in forreign parts or places where the calamity or necessity is universal on the Vessell XVI If the Vessel happens afterwards to be wreckt or cast away and the Marriners by their great pains and care recover some of the ruines and lading the Master in that case may pledge the same the produce of which he may distribute amongst his distressed Marriners in order to the carrying them home to their own Countrey But if the Marriners no wayes contributed to the Salvage then their reward is sunk and lost with the Vessel But if there be any considerable part of the lading preserved he ought not to dismiss his Marriners till advice from the Laders or Freighters for otherwise perchance he may be made lyable If Merchants Freight a Vessel at their own charges and set her to Sea and then happens afterwards to be Weather-bound the Master may impawn either Ship or Lading at his pleasure or at least such as he could conveniently raise moneys on rather then see the whole Voyage lost And if he cannot pawn the Lading he may sell the same that is so much as is necessary in all which cases his act obliges However Orders and Instructions are as carefully to be look'd upon and followed as the Magnate XVII He is not to Import into or Export out of any the English Plantations in Asia Affrica or America but in English or Irish Vessels or of the Vessels built and belonging to that Country Island Plantation or Territory The Master and 3 fourths of the Marriners to be English upon forfeiture of Ship and Goods And if otherwise they are to be look't upon as Prize and may be seized by any of the Kings Officers and Commanders and to be divided as Prizes according to the Orders and Rules of the Sea All Goods of the Growth of his Majesties Plantations are not to be imported into England Ireland or Wales Islands of Jersey or Guernsey but in such Vessels as truly belong to Owners that are of England Ireland Wales Jersey or Guernsey and three fourths at least of the Marriners are to be English upon forfeiture of Ship and Goods The Goods and Wares of those Plantations and brought in such manner as aforesaid must be brought from those very Countries of their several productions and growths or from the Ports where they are usually shipped out on forfeiture of Ship and Goods XVIII No Ship to go from Port to Port in England Ireland Wales Jersey or Guernsey or Berwick unless the Owners are Denizens or Naturalized and the Master and 3 fourths to be English All Owners must swear that their Vessels or Ships are their own proper Ships and Vessels and that no Forreigner has any share or part in her and must enter the same and that she was bought for a valuable consideration Bona fide Nor to bring in any goods from any place but what are of the growth of that very Country or those places which usually are for the first Shipping on pain of forfeiture of their Vessel and Furniture This does not extend but Masters may take in goods in any part of the Levant or Streights although they are not of the very growth of the place so that they be imported in English Ships 3 fourths English Marriners So likewise those Ships that are for India in any of those Seas to the Southward and Eastward of Cabo bona Speranza although the Ports are not the places of their very growth Any people of England may import the Master and Marriners 3 fourths English any goods or wares from Spain Portugal Azores Madera or Canary Islands Nay in Ships that are not English built Bullion may be imported so likewise in those that are taken by way of Prize Bona fide But Sugars Tobacco Cottens Ginger Indicoes Fustick or any other dying Wood of the growth of his Majesties Plantations are to be Shipped carryed or conveyed from any of the English Plantations are to be carryed to no place in the world but are to come directly for England Ireland Wales or Barwick upon pain of forfeiture of Ship and goods and the Master is to give bond with one Security in a Thousand pound if the Ship be under the burden of a 100 Tuns and 2000 l. if above that upon Lading he brings his Ship directly into England Ireland Wales or Berwick the danger of the Seas excepted so likewise they are to do the same for the Ships that shall go from the Plantations at the Plantations to the Governour upon forseiture of the Ship and Goods XX. When the Master shall arrive at Gravesend he shall not be above 3. dayes coming from thence to the place of discharge nor is not to touch at any Key or Wharfe till he comes to Chesters Key unless hindred by contrary Winds or draught of Water or other just impediment to be allowed by the Officers And likewise he or his Purser are there to make Oath of the Burthen Contents and Lading of his Ship and of the marks number contents and qualities of every parcel of Goods therein laden to the best of his knowledge also where and in what Port she took in her Lading and what Country built and how manned who was Master during the Voyage and who the Owners And in out-Ports must come up to the place of unlading as the condition of the Port requires and make Entries on pain of 100 l. Nor is such Master to lade aboard any Goods outwards to any place whatsoever without Entring the Ship at the Custome-House of her Captain Master Burthen Guns Ammunition and to what place she intends and before departure to bring in a Note under his hand of every Merchant that shall have layd aboard any Goods together with the marks and numbers of such Goods and be sworn as to the same on pain of 100 l. No Captain Master Purser of any of his Majesties Ships of Warr shall unlade any Goods before Entry made on pain of 100 l. Note There is a List of all Forraign built Ships in the Exchequer and that no Forraign Ship not built in any of his Majesties Dominions of Asia Affrica or America after 1. Octob. 1662. and expressly named in the List shall enjoy the Priviledges of a Ship belonging to England or Ireland although owned and manned by English except onely such as are taken by way of reprize
any damage happens they are to make full satisfaction so it is if they lay out an Anchor and neglect the placing of a Buoy to the Anchor and damage happen thereby they are not onely subject to be punished in the Admiralty but likewise to render satisfaction to the party damnified If two Ships be in the River and the one falls foul on the other both being laden by the Law Maritime the Contribution is to be in Common and to be equally divided and apprized half by half but then the Marriners must swear there was no fault in them for otherwise one that hath an old rotten Vessel which he can no wayes dispose of may so order the matter as to lay her in the way of a good Ship under sayl so that the same may be answered in damage but when the Contribution is made equal then the contrivance will be avoided CHAP. X. Of Bills of Exchange I. Of the Antiquity of Exchange by the Hebrew Law II. Of the Antiquity of Exchange by the Romans III. Of Exchanges by other Nations in imitation of those people IV. Of the several sorts of Exchanges and of Cambio commune V. Of Cambio real or Exchanges value for value VI. Of Cambio sicco or dry Exchanges VII Of Cambio fictitio or seigned Exchange VIII Of the Exchanges used this day and on what IX How Exchanges are made and upon Moneys in London X. Moneys paid generally how repaid by Exchange XI Of Bills of Exchange payable at single usance XII Bills of Exchange at double or treble usance and of the customary usances to certain places from London and Amsterdam to other places XIII Of the nature of Bills of Exchange and how esteemed of by the Lawes of England XIV Bills drawn more then one no prejudice to the parties and of the true measure of judging on Bills by Custome XV. What amounts to an acceptance generally and on refusal where to be protested XVI All the drawers are made lyable and whether the party to whom the Money is made payable is bound to procure an acceptance XVII Protest what is meant by the same and where the same is necessary and where not XVIII Bill drawn on two persons where the same is necessary and where not XIX One Factor serves a Company where a Bill accepted of his by one of the Company obliges the rest and where not XX. What words amount to an acceptance and what not XXI Where a Bill may be accepted for part and what must be done with the Bill thereupon XXII When a Countermand may legally be made and when not XXIII How the several parties interessed in a Bill of Exchange are obliged and fettered to each other XXIV How a Collateral security may be annexed to a Bill when the time is elapsed for non-payment XXV Where the Protest is onely necessary to be kept and where that and the Bill must both be remitted XXVI Bill lost what is necessary for the parties interessed in such case to act XXVII Of blanck Endorsements the validity of the same XXVIII A Bill once accepted whether the same may be revoked and whether it may be accepted to be paid at a longer time then is mentioned and what Protests are then necessary to be made XXIX Of Bills accepted for the honour of the drawer where the same shall oblige XXX The time customary allowed for payment after failer of payment at the day XXXI Of the validity of the speedy protest as in relation to recover the money to be paid on the drawer XXXII Bill accepted and before the day of payment the Acceptor is a sayling what 's necessary to be done as in reference to obtaining better security XXXIII Bills accepted for the honour of the drawer where turned into an act and remitted by him that gives honour to the Bill XXXIV The Acceptor ready to pay but the party to whom made payable is dead what is necessary XXXV Causes general for a Protest and where satisfaction to the deliverer discharges all parties XXXVI Of Exchange by way of Credit XXXVII One payes a Bill before it be due and the party to whom the same was paid fails where he shall be answerable to the drawer notwithstanding XXXVIII Of Bills assignable over according to the Customes of Merchants what operation in England I. THe Exchange for Moneys is of great Antiquity as well by observation of the Hebrew Customes as those of the Romans Upon the first of the Month Adar Proclamation was made thoroughout all Israel That the People should provide their half Shecklâ—… which were yearly paid towards the Service of the Temple according to the Commandement of God on the 25th of Adar then they brought Tables into the Temple that is into the outward Court where the people stood on these Tables lay the lesser Coyns which were to furnish those who wanted half Sheckles for their Offerings or that wanted lesser pieces of money in their payment for Oxen Sheep Doves and the like which stood there in a readiness in the same Court to be sold for Sacrifices but this supply and furnishing the people from those Tables was not without an Exchange for other money or other things in lieu of money and that upon advantage Hence all those that sate at the Tables were called chief Bankers or Masters of the Exchange II. By the Romans it is supposed to be in use upwards of 2000 years Moneys being then elected out of the best of Metals to avoid the tedious carriage of Merchandize from one Countrey to another So other Nations imitating the Jewes and Romans erected Mints and coyned Moneys upon which the Exchange by Bills was devised not onely to avoid the danger and adventure but also its troublesome and tedious carriage III. Thus Kingdoms and Countreys having by their soveraign authorities coyned Moneys caused them to appoint a certain Exchange for permutation of the various Coyns of several Countreys without any transportation of the Coyn but giving par pro pari or value for value with a certain allowance to be made those Exchangers for accommodating the Merchants IV. As Commerce became various so Exchange numerous but generally reduced to four Cambio Commune Cambio real Cambio sicco and Cambio fictitio Cambio Commune in England was those that were Constituted by the several Kings where having received Moneys in England would remit by Exchange the like sum to be paid in another Kingdome Edward the Third to ascertain the Exchange caused Tables to be set up in most of the gâ—…eral Marts or Ports of England declaring the values of all or most of the Forraign Coyns of those Countries where his Subjects held correspondence or Commerce and what allowances were to be made for having Moneys to be remitted to such Countryes or Kingdoms V. Cambio real was when Moneys were paid to the Exchanger and Bills were drawn without naming the Species but according to the value of the several Coyns which two Offices afterwards were
incorporated and indeed was no more but upon payment of Moneys here in England to be repaid the just value in money in another Countrey according to the price agreed upon between the Officer and deliverer to allow or pay for the exchange of the money and the loss of time VI. Cambio sicco or dry Exchange is when a Merchant hath occasion for 500 l. for a certain time and would willingly pay interest for the same the Banker being desirous to take more than the Statute gives and yet would avoid the same offers the 500 l. by Exchange for Cales whereunto the Merchant agrees but the Merchant having no correspondence there the Banker desires him to draw his Bill to be paid at double or treble usance at Cales by Robin Hood or John-a-Noakes any seign'd person at the price the Exchange is then curant accordingly the Merchant makes the Bill and then the Banker payes the moneys which Bill the Banker remits to some Friend of his to get a Protest from Cales for non-payment with their Exchange of the money from Cales to London all which with costs the Merchant is to repay to the Banker sometimes they are so conscientious as not to make above 30 per Cent. VII Cambio fictitio when a Merchant hath occasion for Goods to Freight out his Ship but cannot well spare money The Owner of the Goods tells him he must have ready money the buyer knowing his drift it is agreed that the seller shall take up the moneys by Exchange for Venice or any other parts but then the Merchant must pay for Exchange and re-exchange So likewise where the Merchant is become indebted to the Banker they are contented to stay the Merchant paying Exchange and re-exchange the which he will most certainly compel him to do These two last wayes of grinding the face of the generous Merchant was afterwards prohibited but notwithstanding it was found impossible to moderate the inequality of Exchanges and to have value for value so that at this day it seems to be a Cold that many an honest man is apt to catch VIII The just and true Exchange for Moneys that is at this day used in England by Bills is par pro pari according to value for value so as the English Exchange being grounded on the weight and fineness of our own Moneys and the weight and fineness of the Moneys of each other Countrey according to their several Standards proportionable in their valuation which being truly and justly made ascertains and reduces the price of Exchange to a sum certain for the Exchange of Moneys to any Nation or Countrey whatsoever As for instance If one receives 100 l. in London to pay 100 l. in Exeter this by the Par. But if a Merchant receives 100 l. in London to pay 100 l. at Paris there the party is to examine and compare the English weight with the weight of France the fineness of the English Sterling Standard with the fineness of the French Standard if that at Paris and that at London differ not in proportion then the Exchange may run at one price taking the denomination according to the valuation of the Moneys of each Countrey but if they differ the price accordingly rises or falls and the same is easily known by knowing and examining the real fineness of a French 5 s. piece and an English 5 s. piece and the difference which is to be allowed for the want of fineness or weight which is the Exchange and so proportionably for any Sums or Moneys of any other Countrey the which is called Par or giving value for value But this Course of Exchange is of later years abused and now Moneys are made a meer Merchandize and does over-rule Commodities and Moneys rise and fall in price according to the plenty and scarcity of money IX As Money is the common measure of things between man and man within the Realm so is Exchange between Merchant and Merchant within and without the Realm The which is properly made by Bills when Money is delivered simply here in England and Bills received for the repayment of the same in some other Country either within the Realm or without the Realm at a price certain and agreed upon between the Merchant and the Deliverer For there is not at this day any peculiar or proper Money to be found in Specie whereupon Outland Exchanges can be grounded therefore all Forraign Coyns are called imaginary At London all Exchanges are made upon the pound sterling of 20 s. and 12 d. to the shilling for Germany Low-Countries and other places of Traffique and for France upon the French Crown for Italy Spain and some other places upon the Ducat For Florence Venice and other places in the Streights commonly by the Dollar and Florin X. Bills drawn to be paid are either at sight or a time certain single double or treble usance and are commonly about 3. for fear of any miscarriage The taking and delivering money at sight binds the taker up to give his Bill to pay at sight or within some short time the like sum after such a rate the Pound Dollar Ducat or Crown as is agreed between them in Forraign Coyn either according to the valuation of Moneys or currant Moneys for Merchandize XI The second time of payment is called Usance it is known or taken to be the compass of one month to be computed from the date of the Bill and that governed according to the custome of the place where those Exchanges do run XII The third is double or treble Usance 2. or 3. months sometimes there are Exchanges made upon half Usance The times of payment do alter the price of Exchanges according to time commonly after 12 15 or 20 in the Hundred by the year Usance from London to Middleborough are generally accounted one months time from the date of the Bill Amsterdam Antwerpe Bridges Rotterdam Lisle Roane Paris The Bills may have a larger sometime a shorter time there is no direct certainty but onely that single Usance is a month double Usance 2. months c. Usance from Amsterdam to Rome Are generally accounted 2 months from the date c. Genoa Venice Naples Palermo Luca Sevill Lisbon From London to Florence is sometime accounted treble Usance from the date of the Bill Venice Leighorne Zant Aleppo Luca. XIII Excambium vel Cambium or as the Civilians term permutatio Billa Excambij signifieth no more but a customary Bill solempnized by a numerous consent of Traders to have a respect more then other Bills though of as high and as intrinsical a value And those that give such Bills were called Exchangers or Bankers Though the Act was no more but to keep up the life of Commerce without which it is impossible for any Nation to flourish yet could not any person draw such Bills or return Money beyond Seas without Licence first obtained of the King But at this day any man may do it without being
due unto them for the half Subsidy and also the Algier Duty of Forraign Goods formerly Exported now due and unpaid The Duties and Sums of Money appointed to be paid by the Act of Tonnage and Poundage passed this Parliament and by the Book of Rates therein mentioned and no other shall be paid to his Majesties Officers during the continuance of the said Act upon Goods imported and exported any Law Statute or Usage to the contrary notwithstanding Nevertheless the duty of Prizage and Butlerage and the duty of 12 d. of every Chaldron of Sea-Coal exported from Newcastle upon Tyne to any other Port or Ports of this Realm shall be continued XXVII If any Merchant Denizen born shall happen to have his Goods and Merchandize taken by Enemies or Pyrats at Sea or perished in any Ship or Ships the duties being either pâ—…id or agreed for upon due proof thereof may ship out of the same Port the like quantity as shall amount unto the Custome without paying of any thing for the same If the Importer shall pay ready money he shall be allowed 10 per Cent. for so much as he shall pay down XXVIII Ships of Warr may be entred and searched for prohibited and uncustomed Goods and to bring them a shoar to the Kings Ware-houses and the Commissioners or Head Officers may leave aboard Officers to look after them that none be unladen or imbezelled on pain of forfeiturc of 100 l. And if Goods are concealed a shipboard after such time as the Ship is cleared to forfeit 100 l and then any with a Writ of Assistance out of the Court of Exchequer to go in the day time to any place and enter and seize Goods conveyed secretly into Ships and carried away without paying the Subsidy and Duties the Owners and Proprieters forfeit the double value except Coals which only forfeit the double Custome and Duty XXIX There are allowances to be given Merchants for defective and damag'd Goods of 5 per Cent. on all Goods imported and 12 per Cent. on all Wines to be allowed upon debentures but if they shall ship out less then is in the Certificate then the Goods therein mentioned or the value thereof shall be forfeited and the Owner or Merchant shall lose the benefit of receiving back any of the Subsidy and Goods shipped out are not to be landed again in England on pain of forfeiture of those Goods All Goods coming out of or carried into Scotland by Land shall pass thorough Berwick or Carlisle and pay Customes as others on pain of forfeiture And although that by this Act there are many allowances to be made especially Merchants Denizens yet the Parliament have ever been so careful as to bound the same that is it shall be to such who Trafick in Ships which are indeed the Bul work of this Isle and therefore if such Merchandize shall be Transported out in any Gally or Carrack they are obliged to pay all manner of Customs and all manner of Subsidies as any Alien but in regard that Herring and Fish are and have been accounted one of the principal Commodities and generally finds a vent or Market in those Kingdoms and Countries that usually imploy such sort of Vessels those Commodities may be Transported in them as well as Ships from any Port or Harbour within this Realm without paying any Subsidy or poundage for the same but then such Fish must be taken by the Natives of the Kingdom and Transported by them otherwise to pay as Aliens And whereas all manner of Woollen Cloaths as well White as Coloured unrowed unbarbed and unshorne and not fully dressed are prohibited by Law to be Transported His Majesty was gratiously pleased to Grant unto Frances Countess of Portland as well for her Alliance in blood as also for the many Crosses and Calamities which she hath suffered by the loss and Death of her nearest Relations in his Majesty and his Royal Fathers Service full power for one and thirty years to Licence the Transporting of such goods Non obstante such prohibitory Laws the which is now put in Execution by agreement and Composition with her Deputies at the Custome House CHAP. XVI Of the Right of Passage of imposing on the Persons and Goods of Strangers for passage thorough the Seas I. Of the Right of harmless Utility excepted tacitly in the primitive dominion of things II. Where Passage ought to be open and where the same might be implicitly provided for in the first institution of Property and under what Cautions III. Of the same right as in reference to Goods and Merchandize IV. If Passage admitted whether Tribute or Toll may be imposed V. Where Imposition may lawfully be laid and for what causes And of the Kings Prerogative in that Point I. HAving in the foregoing Three Chapters observed somewhat of Customes and Impositions laid de facto within the Realm and that by Acts of Parliament or the consent of the Three Estates it may not seem amiss to enquire what Imposition the King of his Prerogative may impose on Strangers and their Goods passing thorough his Territories and Seas and in that to enquire of the same as in reference to Persons and Goods Beside the right of necessity which seems to be excepted in the first Institution of Dominion there is another Relique of old Communion namely the Right of harmless Utility For why should not one saith Cicero when without his own detriment he may communicate to another in those things that are profitable to the Receiver and to the Giver not chargeable Therefore Seneca saith it cannot be called a benefit to give leave to another to light his Fire by yours We read in Plutarch it is not lawful to spoyl our Victuals when we have more then enough nor to stop nor hide a Fountain when we have drunk our fill nor to abolish the Way marks either by Sea or Land which have been useful to us So a River as a River is proper to that Prince or that Lord or that People within whose Dominion or Royalty it runs and they may make a Mill on it unless it be Common as a High-way and may take what Fish the River yields but the same River as a running Water remained common as to drinking or drawing of it notwithstanding as to the Fishing and the like it may be peculiar II. Again Lands Rivers nay if any part of the Sea be come into the Dominion or Property of any People it ought to be open to those that have need of Passage for just causes namely being expelled by force out of their own Country they seek void places or because they desire Commerce with remote Nations The reason here is the same which hath been mentioned elsewhere because Dominion might be introduced with a reception of such use which profits these and hurts not those and therefore the Authors of Dominion are to be supposed willing rather to have it so then that such
wandring Angel these steal even the Ship-wrack'd mans picture from him which as his whole inheritance he carried at his back to move compassion and by the insatiable Sea of their Avarice and Luxury they wreck him over at Land IX But this free Primitive Communion had and hath its bounds and its quantum in Contributions as well as the natural otherwise it might be fraudulent and thieving For they who possess but a little would contribute it all on purpose to share equally with those who possess very much which would introduce a visible decay and ruin in all as Tiberius rightly observed on M. Hortalus his petitioning an Alms for Augustus Caesar's sake Idleness would encrease and industry languish if men should entertain no hope nor fear for themselves but securely expect other mens relief idle to themselves and burthensom to us Wherefore in the midst of that primitive Communion we find that the Apostles went Domatim from house to house breaking of bread therefore they even then retained by their houses in property which property is supposed by the eighth Commandment as well as it is by Christian Charity For no man can steal but by invading the right of another and as for Charity it is necessary he have something of his own to be able to fulfil its commands and to make a dole at his door and it is very convenient that he give it rather with his own hand then by some publique Collectors For Charity is hated most with the sence of its own action Moreover under the Law Jews were commanded to love one another as themselves yet this Command took not away property then therefore it takes it not away now notwithstanding we own the use or usufruct of our properties to the distressed though our selves be at the same time in distress just as we are commanded by the peril of our own lives to endeavour to secure our Neighbours life which is yet a Charity more transcendent then the other by how much life is above livelyhood And though the various Laws of Countreys have variously provided punishment for those who out of meer necessity take something out of anothers plenty yet that proves not the Act to be sin or repugnant to equity or conscience but rather repugnant to the conveniency of that Kingdom or Republique where the Act is committed and the true reason of the same is least thereby a gap might be laid upon to Libertinism besides Reason of State we know considers not vertue so much as publick quiet and conveniency or that right which is ad alterum X. We will now consider those things which are Gods which yet are not his in such a strict rigorous sence but that they lye open to the exceptions of our just necessities hence that which is devoted as a Sacrifice to him in case of necessity may be made our dinner witness the Action of David Wherefore the consequence of our Saviours answer was very strong when he defended his pulling the Eares of Corn in anothers Field That if it was lawful for David in his necessity to eat that Bread which was provided for the Table of God then how much more was it lawful for him and his Apostles in their necessities to take a refreshing out of that which belonged to Man by the Canon Law if no other means can be found the Vessels of the Altar may be sold to redeem those Souls who are enthralled in misery and captivity and is there not good reason for it seeing they serve but for the Souls of Men and therefore the Souls of Men are more precious then they Yea the Sacrifice it self to what end is it but to obtain a state of piety for us Upon what hath been said it may not seem an injury if a Planter wanting those things for the support of humane life requesting a reasonable proportion of his Neighbour having it to spare with an intention to repay if denyed by force take the same from him for that reason which creates a punishment in a settled Common-wealth for the like actions does in such places fail CHAP. VI. Of Merchants I. Merchandizing the same is honourable and proffitable both to Prince and State II. The Advantages that might accrue to Kingdoms iâ—… the more Nobler and Richer sort applyed themselves to the same III Of the first Institution of the Company of Adventurers IV. Of the â—…stitution of that in England to the Indies V. Of the forming of that in Holland to these parts VI. Of the forming the like by the Most Christian King to the same parts VII Of the advantages and disadvantages considered as in reference to reducing them to Companies VIII How Merchants in England were provided for of old IX Of their immunities settled by Magna Charta X. Of Merchants Strangers whose Prince is in War with the Crown of England how to be used in time of War and the reasons why Merchants Strangers ought to be used fairly XI Goods brought in by them the Moneys raised how to be disposed according to the Statute of Imployment XII Merchant Strangers made Denizons by Parliaments or Letters Patents to pay as before they were so made XIII What things requisite that makes a Competent Merchant according to Law XIV One Merchant may have an Account against his Partner and if he dyes no survivorship to be of the Estate belonging or acquired in their Traffique XV. Of their Immunities which they claim by the Custom of Merchants in reference to Exchange XVI All Subjects are restrained to depart the Realm but Merchants XVII Prohibitory Laws bind Forraigners according to the Leagues of Nations XVIII The necessity and advantage that is incumbent on Merchants to preserve their marks I. THere are certain affairs which should be left to the poor and Common People to enrich them but there are others which they only can execute which are rich as that at Sea by way of Merchandizing which is the most profitablest in an Estate and to the which they should attribute more honour then some do here at this day For if in all Estates they have thought it fitting to invite the Subjects by honour to the most painful and dangerous actions the which might be profitable to the Publick this being of that quality they should attribute more honours to those that deal in it And if Nobility hath taken its foundation from the courage of Men and from their valour there is certainly no vocation in the which there is so much required as in this they are not only to encounter and strive amongst Men but sometimes against the four Elements together which is the strongest proof that can be of the Resolution of Man This hath been the occasion that some have been of opinion that they should open this door to Merchants to attain to Nobility so as the Father and Son hath continued in the same Trade and to suffer Noble Men who are commonly the richest in an Estate to practise
President which governs in their name at Banda they have a Fort for a retreat where they must deliver them the Spices at a certain price in Trinate they have another a mile distant of that of the Portugales at Magniene they have three at Motire one at Gilele they have taken that which the Portugales have built and indeed whatsoever either can or may consist with their interest in those parts they have engrossed and by that means almost the Trade of the whole Spices of the East VI. So likewise the Most Christian King hath within few years established such another Trading to those Eastern Parts And in England we have several others as that of trading to Turkey that of Affrica to Guiny and several others dividing the several Trades according to the Coasts and Places where they are appointed forbidding them to intrench or incroach on each other so likewise to all other his Majesties Subjects on severe penalties VII Now it is not the dividing of the Trade into Companies that can answer the expectation but it is the dividing the Trade into Companies where the Places may bear it as that to the Indies Turkey Hambourough and some others But to some others as the Canaries France or any of those Places on this side the Line it has been conceived the Trade will not bear it but the same would be better distributed either into the Trade of voluntary Associations or single Traders others perhaps would result into Monopolies if incorporated however the Standard rule is to know whether the Trade of the Place will bear a Company or not VIII Merchants in England were alwayes favourably provided for by the Common Law of this Kingdom By the Ancient Laws of King Alfred it was provided Defer due fuit que nul Merchant Alien ne hantaâ—…t Angleterre forsque aur quater Foires ne que nul demeurast in la terre outer quarante Iours Mercatorum navigia vel inimicorum quidem quaecunque ex alto nullis jactata tempestatibus in portum aliquem invehentur tranquilla pace fruuntor quin etiam si maris acta fluctibus ad domicilium aliquod illustre ac pacis beneficio donatum navis appulerit inimica atque istuc nautae confugerint ipsi res illorum omnes angusta pace potiuntor IX Again by the Grand Charter of our Liberties they are provided for in these words Omnes Mercatores nisi publice antea prohibiti fuerint habeant salvum securum conductum exire de Anglia venire in Angliam morari ire per Angliam tam per terram quam per aquam ad emendum vel vendendum sine omnibus malis tolentis per antiquas rectas consuetudines praeterquam in tempore guerrae Et sint de terra contra nos guerrina tales inveniantur in terra nostra in principio guerrae attachiantur sine damno corporum suorum vel rerum donec sciatur a nobis vel a Capitali Justitiario nostro quomodo Mercatores terrae nostrae tractantur qui nunc inveniantur in terra illa contra nos guerrina Et si nostri salvi sint ibi alii salvi sint in terra nostra 1. By which it is declared that all Merchant Strangers might be publiquely prohibited to Trade into this Realm be they in Amity or otherwise 2. All Merchant Strangers in Amity except such as be so publiquely prohibited shall have safe and sure conduct in seven things 1. To depart out of England 2. To come into 3. To tarry in 4. By Water and Land to go in and thorough 5. To buy and sell  6. Without any manner of evils Tolls  7. By old and rightful Customs  X. But concerning such Merchant Strangers whose Prince is in War with the Crown of England if they are found within the Realm at the beginning of the War they shall be attached with a Priviledge and limitation i. e. without harm of Body or Goods with this limitation until it be known to the King or his Chief Justice how Merchants of England are used and intreated in their Countrey and accordingly they shall be used in England the same being jus Beli. But for Merchant Strangers that come into the Realm after War begun they may be dealt withal as open Enemies It being the Pollicy of England ever to entertain Merchant Strangers fairly in the 18. year of Ed. 1. in the Parliament Roll it is contained thus Cives London peâ—…unt quod alienigenae Mercatores expellantur a Civitate quia dicantur ad depauperationem Civium c. Responsio Rex intendit quod Mercatores extranei sunt idonei utiles magnatibus c. non habet Concilium cos expellendi However though great Immunities were granted them yet they alwayes found Sureties that they should not carry out the Merchandize which they brought in XI And at this day if they bring in any Merchandize into the Realm and sell the same for Moneys they are to bestow the same upon other Merchandizes of England without carrying of any Gold or Silver in coin plate or mass out on forfeiture the principal reason of this was as well to preserve and keep the Gold and Silver within the Realm as for the encrease of the Manufactures and the same at this day extends as well to Denizons so made by Letters Patents as Strangers however he may use the same in payment to the Kings Leige People without incurring the penalty of the Statute of 4 H. 4. but yet in strictness of Law ought not to receive any Gold in payment XII All Merchant Strangers that shall be made Denizons either by the Kings Letters Patents or by Act of Parliament must pay for their Merchandize like Custom and Subsidy as they ought or should pay before they were made Denizons XIII Every one that buys and sells is not from thence to be denominated a Merchant but only he who trafiques in the way of Commerce by importation or exportation or otherwise in the way of Emption vendition Barter permutation or exchange and which makes it his living to buy and sell and that by a continued assiduity or frequent negotiation in the mystery of merchandizing But those that buy Goods to reduce them by their own art or industry into other forms then formerly they were of are properly called Artificers not Merchants Not but Merchants may and do alter Commodities after they have bought them for the more expedite Sale of them but that renders them nor Artiâ—…rs but the same is part of the mystery of Mâ—…ts But Perâ—…â—…ying Commodities though theâ—… alâ—… not the form yet if they are such as â—…ell the 〈◊〉 at â—…ure dayes of payment for greater priâ—… then 〈◊〉 〈◊〉 them they are not properly called Merchants 〈◊〉 are 〈◊〉 thâ—… they 〈◊〉 〈◊〉 other names as Ware-House Keepers and the like but Banckers and such as deal by Exchange are properly called Merchants XIV
as if a blanck is left in the policy if a loss happens the parties are without remedy 2. 7. 14 Indictment For Pyracy upon the Statute must mention the same to be done at Sea 1. 4. 23 Indiction If necessary 1. 1. 11 Infidel Cannot be a witness yet may bring an Action 3. 4. 7 Innocent Whether such a person may be deserted to prevent a Warr 1. 11. 5 How obliged to render up himself 1. 11. 7 Interpellation Interpellation having gone and no satisfaction returned whether Warr may be begun 1. 1. 14 Joynt-Traders Vide Societieg Joynt-Traders the acceptance of a Bill by one will bind the other 2. 10. 18 But accepted by one Member of a Company it cannot oblige another Justice Stopt and Judges not able to protect men from Violence denotes Warr 1. 1. 6 Denyed or delayed in the ordinary course to a Forraigner gives right of Reprizal 1. 2. 9 11 In matters doubtful the presumption is alwayes for the Judge 1. 2. 10 King KIng's Standard appearing in the Field denotes a Warr 1. 1. 6 King not entitled to the Copyhold Land of an Alien 3. 2. 11 Law OF Nature what thing may be acquired in Warr by the same and also by the Lawes of Nations 1. 1. 6 Law Civil cannot command any thing that the Lawes of Nations forbids 1. 6. 1 Lawes of Nations broken by an Ambassadour subjects him to punishment 1. 10. 5 Judgments how executed by the Lawes of Nations 3. 8. 8 Larceny Where the same may be in a Master 1. 4. 16 Leagues Leagues made with Princes though they have lost their Kingdome remain 1. 7. 18 Leagues remain though the Republique is changed into a Monarchy 1. 7. 17 Leagues the Oath binds the person and the Promise the Successor ibid. Leagues confirmed in England by Parliament and are often Offensive 1 7. 7 The cause ordinary for which they are made 1. 7. 8 Defensive Leagues Leagues how Ratified 1. 7. 12 How broken and the ordinary cause 1. 7. 13 14 How to be interpreted 1. 8. 6 Loadmanage What. 2. 7. 7 London Discharged of Prisage 2 8. 3 The Extent of the Port 3. 14. 9 Keyes and Places lawful for landing in the same 2. 14. 10 Charter confirmed 3. 1. 10 Lotts Vide Mutiny Manumission WHen first introduced 3. 1. 8 The various wayes of making Free ibid Marriners and Fishermen Pressed for the Service are not to be imployed but as Marriners 1. 6. 4 Their Wages dye with the Ship 2. 3. 7 Marriners their Suits favoured by the Courts at Common Law 2. 3. 8 May be corrected by their Master or Captain 2. 3. 12 Marriner cannot contract for Freight 2. 4. 14 Marriners what share they have in the Goods of a Passenger deceasing in the Voyage 2. 4. 11 Marriners their faults and punishments 1. 13. 4 5 Marriners a Shipboard their various Offices and Imployes 2. 3. 1 Their faults how punished 2. 3. 2 The mutual Ayd they must afford one another 2. 3. 3 Not to be arrested a Shipboard nor are they to depart thence when once entertained ibid. Obliged to make satisfaction 2. 3. 4 Masters of Ships Where his knowledge of the Goods may involve the whole Lading 1. 1. 12 Master of a Ship hang'd up for attempting to relieve a place block'd up 1. 1. 14 Master of a Ship becomes a Pledge in the hands of Pyrats for the redemption of the Ship the same is made lyable for his redemption 1. 4. 5 Master brings Goods to a Port and then runs away with them not Pyracy 1. 4. 16 Master responsible for offences to his Owners 2. 1. 8 Where he may release the Freight and where not 2. 4. 15 Where his act obliges the Owners and where not 2. 1. 10 Master hath no Property in the Vessel by being constituted Master 2. 2. 1 Master becomes lyable immediately by the lading the Ship aboard 2. 2. 2 So likewise if he receives them if lost he must answer 2. 2. 3 His Duty 2. 2. 4 He may borrow Money on the Ship 2. 2. 14 2. 11. 10 The Master is obliged to the care and preservation of his Marriners 2. 3. 2 He is obliged for the Barratry of his Marriners 2. 3. 13 Master not lyable unless the Lading is brought aboard by his and his Pursers consent 2. 3. 17 Nor can the same be attached in his hands 2. 3. 18 If he translades the Lading and the Ship miscarry he shall answer but if both è cont ' 2. 4. 4 Master to answer for insufficient Ropes in hoysting out the Goods 2. 9. 5 Masters obliged by the act of their Servants 2. 10. 27 Members What is understood by them 2. 14. 7 Merchants Honour justly due to Merchants 3. 9. 1 The more Honourable the persons are the more reputation they bring to their Country 3. 6. 2 All Nations professing the same may freely Traffique for England 2. 12. 1 Merchants Strangers their Immunities granted 2. 12. 9 An Alien Infant cannot be a Merchant Trader in England nor can be enter Goods in his own name 3. 2. 11 No survivor amongst Joynt Merchants 3. 6. 14 May depart without leave 3. 6. 15 Money Is the civil measure of things 2. 11. 5 Its necessity in Society 2. 11. 6 7 Advanced on a contingency is no Usury 2. 11. 13 14 Mutiny To be punished with death how the same is to be governed in such extremity 1. 14. 17 Not to Mutiny if the Victuals are naught 1. 14. 23 They may be Executed immediately 1. 14. 26 Naturalization CAnnot be in England without Act of Parliament 3. 3. 2 It removes all the disability or incapacity in the Ancestor 3. 3. 3 Naturalized in Ireland operates not in England but in Scotland otherwise 3. 3. 4 Necessity The Master may translade without Commission 2. 4. 4 Necessity is excepted out of the Law of Dominion 1. 1. 4 Ships in Necessity may take things necessary from another by force of Arms 1. 4. 18 The right of Nature in such extremity where let in 3. 5. 5 In such Exigencies how written Lawes are to be interpreted 3. 5. 7 Neutrality Neuters how they ought to carry themselves in Warr 1. 1. 14 Neuters their Ships in the Ports of the warring Parties whether being forced to fight is a breach of the League 1. 1. 15 Neutrality what and how made 1. 9. 6 The advantage of the same 1. 9. 7 Neuter neither purchases Friends nor frees himself from Enemies 1. 9. 7 It works no wrong ibid. If prest for whom must he declare 1. 9. 8 Oath HE that gives it to Pyrat is bound to the performance 1. 2. 6 Oath may be administred by the Judge Advocate 1. 14. 27 Office King not entitled to the Lands of an Alien till Office found but in Treason è cont ' 3. 2. 10 Officer Quarrelling with how punished if struck the party offending suffers death 1. 14. 22 Owners Owners may Freight out their Ship against the consent of each other 2. 1. 2 Cannot be