III. Though Pyrats are called enemies yet are they not properly so termed For he is an enemy saies Cicero who hath a Common-wealth a Court a Treasury consent and concord of Citizens and some way if occasion be of Peace and League and therefore a Company of Pyrats or Freebooters are not a Common-wealth though perhaps they may keep a kind of equallity among themselves without which no Company is able to consist and though it is seldom they are without fault yet hold society to maintain right and they do right to others if not in all things according to the Law of Nature which among many people is in part obliterated at least according to agreements made with many other Nations or according to Custom So the Greecks at what time it was accounted lawful to take spoil at Sea abstained from slaughter and populations and from stealing Oxen that plowed as the Scholiast upon Thucydides observes and other Nations living also upon the spoil when they were come home from Sea sent unto the Owners to redeem if they pleased at an equal rate what they were robbed of at Sea and at this day if a Ship hath the Emperor of Barbarys protection the Pyrats of that Nation if they seize will restore and if there be no protection yet if taken within sight of their Castles the Prize is not absolute but if resistance is made and there be a Caption she then becomes the Captors for ever as the price of blood IV. Pyrats and Robbers that make not a Society i. e. such a Society as the Laws of Nations accounts lawful are not to have any succour by the Law of Nations Tiberius when Tacfarinas had sent Legates to him he was displeased that both a Traytor and a Pyrat should use the manner of an Enemy as Tacitus hath it yet sometimes such Men Faith being given them obtain the right of Legation as the Fugitives in the Pyrenean Forrest and the Banditi at Naples and Solyman the Magnificent having entertained Barbarossa the famous Pyrat sent word to the Venetians that they should use him and esteem him no more as a Pyrat but one of their own Port. V. If a Ship is assaulted by a Pyrat for redemption of which the Master becomes a Slave to the Captors by the Law Maritime the Ship and lading are tacitly oblidged for his redemption by a general contribution But if a Pyrat shall feign himself stronded and to duccoy the Merchant Man for his releif shall fire his Guns or wave his Colours who accordingly varies his course for his assistance and the Pyrat enters him for redemption of which he becomes a Slave to the Pyrat there contribution shall not be made and if the Ship loses any of her lading the Master shall answer the same VI. A Pyrat attacques a Merchant Man and enters her for Redemption of which the Master gives his Oath at a time and place to pay the Pyrat a summe certain by some it hath been held that the Master commits not perjury if the price promised for redemption be not brought according to the Oath because that a Pyrat is not a determinate but a common Enemy of all with whom neither Faith nor Oath is to be kept but that is no reason for the assoiling of the vow for though the Person be deficient yet the Just God is concerned nor can that Person that hath promised a thing satisfy his conscience after he hath once delivered it to him to recover it back again for the words in an Oath as to God are to be understood most simply and with effect and therefore he that returned secretly to the Enemy and again departed made not good his Oath concerning his return VII If an English Man commit Pyracy be it upon the Subject of any Prince or Republique in amity with the Crown of England they are within the purview of the Stat. of 28 H. 8 and so it was held where one Winterson Smith and others had robbed a Ship of one Maturine Gantier belonging to Bourdeaux and bound from thence with French Wines for England and that the same was felony by the Law Maritime and the Parties were convicted of the same VIII And so it is if the Subject of any other Nation or Kingdom being in amity with the King of England commit Pyracy on the Ships or Goods of the English the same is felony and punishable by virtute of the Stat. and so it was adjudged where one Careless Captain of a French Man of War of about 40 Tuns and divers others did set upon four Merchant Men going from the Port of Bristoll to Carmarthen did rob them of about 1000 l. for which he and the rest were arraigned and found guilty of the Pyracy But before the Stat. of 25 Ed. 3. if the Subjects of a Forreign Nation and some English had joyned together and had committed Pyracy it had been Treason in the English and felony in the Forreigners And so it was said by Shard where a Norman being Commander of a Ship had together with some English committed robberies on the Sea being taken were arraigned and found guilty the Norman of felony and the English of treason who accordingly were drawn and hang'd But now at this day they both receive Judgement as felons by the Laws Maritime IX If the Subjects in enemity with the Crown of England be Sailers aboard an English Pyrat with other English and then a robbery is committed by them and afterwards are taken it is felony without controversy in the English but not in the Strangers for they cannot be tryed by virtue of the Commission upon the Statut for it was no pyracy in them but the deprdeation of an Enemy for which they shall receive a tryal by Martial Law and Judgement accordingly X. Pyracy committed by the Subjects of the French King or of any other Prince or Republique in amity with the Crown of England upon the British Seas are punishable properly by the Crown of England only for the Kings of the same have istud regimen dominium exclusive of the Kings of France and all other Princes and States whatsoever XI If Pyracy be committed on the Ocean and the Pyrats in the attempt there happen to be overcome the Captors are not oblidged to bring them to any Port but may exoppose them immediately to punishment by hanging them up at the main yard end before a departure for the old natural liberty remains in places where are no judgements And therefore at this day if a Ship shall be in on a Voyage to the West-Indies or on a Discovery of those parts of the unknown World and in her way be assaulted by a Pyrat but in the attempt overcomes the Pyrat by the Laws Maritime the Vessel is become the Captors and they may execute such Beasts of prey immediately withhout any solemnity of condemnation XII So likewise if a Ship shall be assaulted by Pyrats
and in the attempt the Pyrats shall be overcome if the Captors bring them to the next Port and the Judge openly rejects the Tryal or the Captors cannot wait for the Judge without certain peril and losse Justice may be done upon them by the Law of Nature and the same may be there executed by the Captors Cajus Caesar being but a Private Man pursued the Pyrats by whom he formerly had been taken and spoiled by them and making up to them with such a Fleet as he possible in haste could get ready attaqued burnt and destroyed their Ships and the Men he brought back to an Anchor where repairing to the Proconsul to do Justice who neglecting himself returned back and there hang'd them up XIII If a Pyrat at Sea assault a Ship but by force is prevented entering her and in the attempt the Pyrat happens to slay a Person in the other Ship they are all principalls in such a murder if the Common Law hath Jurisdiction of the cause but by the Law Maritime if the Parties are known they who gave the wound only shall be principalls and the rest accessories and where they have cognizance of the principal the Courts at Common Law will send them their accessory if he comes before them XIV If a Spaniard robs a French Man on the High Sea both their Princes being then in Amity and they likewise with the King of England and the Ship is brought into the Ports of the King of England the French Man may proceed criminaliter against the Spaniard to punish him and civiliter to have Restitution of his Vessel but if the Vessel is carryed intra Praesidia of that Prince by whose Subject the same was taken there can be no proceeding civiliter and doubted if criminaliter but the French Man must resort into the Captor or Pyrats own Country or where he carried the Ships and there proceed A Dutch Man but Naturalized by the Duke of Savoy and living at Villa Franca in his Dominions procures a Commission from the States of Holland and coming to Leighorn there rid with the Colours and Ensigns of the Duke of Savoy the Ship Dyamond being then in Port and having received her lading was afterwards in her Voyage home surprised by that Caper and brought into Villa Franca and there condemned and sold to one Poleman which Ship afterwards coming for England the Plaintiffs having notice made a seizure and upon Tryal Adjudication passed for the Plaintiffs the original proprietors for though the Ship of War and the Captors were of Savoy and carryed thither yet being taken by virtue of a Dutch Comission by the Law Maritime she must be carryed infra Praesidia of that Prince or State by virtue of whose Commission she was taken Nor can such carrying of the Ensignes or Coulors of the Duke of Savoy who was then in amity with the Crown of England or the Commander though a Subject of that Prince make him a Pyrat or subject them or those to whom they have transferred their interest of the Prize any waies to be questioned for the same criminaliter for that the original quoad as to the taking was lawful as one enemy might take from another but civiliter the same for that the Captor had not entitled himself to a firme possession And therfore in all cases where a Ship is by Letters of Marque or Pyracy if the same is not carry'd infra praesidia of that Prince or State by whose Subject the same was taken the Owners are not divested of their property but may re-seize wheresoever they meet with their Vessels XV. If a Pyrat attaques a Ship and only takes away some of the Men in order to the selling them for slaves this is a Pyracy by the Law Maritime but if a Man takes away a Villaine or Warde or any other Subject and sells them for slaves yet this no robbery by the Common Law XVI If a Bale or Pack of Merchandise be delivered to a Master to carry over Sea to such a Port and he goeth away with the whole Pack or Bale to another Port and there sells and disposes of the same the same is no felony But if he opens the Bale or Pack and take any thing out animo furandi the same may amount to such a Larceny as he may be indicted in the Admiralty though it amounts not to a Pyracy Yet if such a Master of Ship shall carry the lading to the Port appointed and after retakes the whole Pack or Bale back again this may amount to a Pyracy for he being in the nature of a Common Carrier the delivery had taken its effect and the privity of the Balement is determined XVII If a Pyrat shall attaque a Ship and the Master for the redemption shall give his Oath to pay a sum certaine though there be no taking yet is the same Pyracy by the Law Maritime If a Ship shall ride at Anchor and the Mariners shall be part in their Ship-Boat and the rest on the shore and none shall be in the Ship yet if a Pyrat shall attaque her and rob her the same is Pyracy XVIII A Merchant procures Letters of Marque or Reprise and then delivers the Commission to Persons to endeavour a satisfaction if such Persons commit Pyracy the Vessel is forfeited without controversy but the Merchant is no waies lyable to make satisfaction for though the Superior shall answer for the actions of his Ministers or Servants yet that is introduced by the Civil Law but this question must be decided by the Laws of Nations by virtue of which such Commissions are awarded or granted the which does exempt any Man to answer for the dammages of his Servants unless he fore-knew that they would commit such a Pyracy or spoliation or any way have abetted or consented to the same which right may be forfeited and the Civil Law let in to acquire satisfaction But if a Ship shall be at Sea and in necessity if she attaques another Ship and takes out some Victuals Cables Ropes Anchors or Sailes especially if that other Ship may spare them this is not Pyracy but then the party must pay ready Money for such things or give a Note or Bill for the payment of the value if on this side the Straites of Morocco within four months if beyond within twelve months XIX By the Law Maritime if Goods are taken by a Pyrat and afterwards the Pyrat attaques another Ship but in the attempt is conquered the Prise becomes absolute the Captor's saving the account to be rendred to the Admiral And it is accounted in Law a just caption of whatsoever may be got or taken from such Beasts of prey be the same in their own or in their Successors possession But then an account ought to be rendred to the Admiral who may if they happen to be the Goods of
Flagg and lower his Top-Sail at his first approach to the French Fleet and to salute the Admiral of France with Guns who was to return the said salute by Guns also as was usual when the Dutch and English Fleet did meet Only in this the right of the Flagg of England differs from that claimed by the French for if there had been a failer on the part of the Dutch of paying that respect to the French the same would have amounted to no more but a breach of the League but the not striking to the King of Englands Flagg is open Rebellion and the Article does so signify for it is there mentioned as a Right and Soveraignty not a bare Dominion only like that of Jerusalem to the King of Spain XII The Duty of the Flagg that hath been so constantly pay'd to our Ancestors is of such advantage to the continuing the renown of this Nation that it serveth to imprint new reverence in Forreigners that render it and adds new courage to those of our Sea Men that exact it and since we know how much it imports a State that it be reverenced abroad and that Repute is the principal support of any Government it equally influenceth the Subjects at Home and Forreign Allies abroad And as there is no Nation in the World more tender of their Honour then the English so none more impatiently tollerate the diminution thereof with what resentments would not only the more generous and Noble but even the Popular and vulgar Sea Men detest this or any succeeding Age should they remit or loose that Regality those acknowledgements which their Predecessors with so much Glory asserted and the neglect whereof was alwaies punished as open Rebellion the indignity of such an Action being sufficient to enflame the whole Kingdom the consideration of which besides his Sacred Majesties own Royal inclination to the same and his evident testimonies never to abandon a ceremony of so high a concernment witness the exposing the one half of his own heart his Royal Highness in the asserting the same with such Fleets and in such Battles that no Age or time cannot shew a memorial of the like are causes sufficient to create in us new flames of love to those Royal Patriots and Defenders of our Rights Private Persons move in another sphear and act by other Rules then Soveraign Powers the regard of credit with them may oftentimes yield to those of utility or other motives the Publique receives little injury thereby or is their wisdom questioned for such punctilio's if they relinquish them for other Imoluments or Peace sake but Soveraigns cannot so transact their subjects the People participate in their Honour and indignities they have a property a direct Right in the former Soveraignes cannot alienate or suffer their Honours to be impaired because it is not really theirs it appertains to the Nation universally and they are all effectually injured by such transactions either because the indignity doth really extend to them or because the Government and Authority is thereupon weakned and prejudiced which is the greatest of Civil detriments that can befall a People though ordinarily they are not aware thereof As Prudence doth thus distinguish betwixt the demeanor of Private and Publique Persons so doth Charity it self for though the Gospel precepts do oblidge particular Persons to bear injuries and contumelies with patience and to surrender even the Coat as well as the Cloak yet is not this so to be construed as if even Private Christians were to yield up their Civil Rights to every insolent that would incroach upon and usurp them or that they were to deprive themselves of those Reparations which the Law and Government affords them neither is it so to be understood as if the Civil Magistrate in Christendom might not secure himself of that obedience and reverence which is due unto dignity but bear the Sword in vain XIII This being the value which this Nation did alwaies place upon the Right of the Flagg the which they never did regard it only as a Civility and Respect but as a principal Testimony of the unquestionable Right of this Nation to the Dominion and superiority of the adjacent Seas acknowledged generally by all the Neighbour States and Princes of Europe and must be pay'd and ackowledged by all Princes in the World that shall be or pass on the same The Maritime Dominion by the Laws of England were alwaies accounted the Four Seas such as are born thereon are not Aliens and to be within them is to be within the Legeance of the King and Realm of England The Records in the daies of Edward the 3d. and Henry the 5th proclaim it that those Kings and their Progenitors had ever been Lords of the Seas and amongst those many great Instances of proving the Soveraignty of the same is that famous Record of Edward the first and Phillip the Fair of France in which the Procurators of most Nations Bordering upon the Sea thoroughout Europe as the Genoeses Catalonians Almaines Zelanders Hollanders Freislanders Danes and Norwygians besides others under the Dominion of the Roman German Empire where all joyntly declare That the Kings of England by right of the said Kingdom from time to time whereof there is no memorial to the contrary have béen in peaceable possession of the Soveraign Lordship of the Seas of England and of the â—…es within the same with power of making and establishing Laws Statutes and Prohibitions of Arms and of Ships otherwise furnished then Merchant Men use to be and of taking surety and affording safe-guard in all cases where néed shall require and of ordering all things necessary for the maintaining of Peace Right and Equity among all manner of People as well of other Dominions as their own passing through the said Seas and the Soveraign Guard thereof By which it plainly appears That the King of England had then been in peaceable possession of the said Dominion by immemorial prescription that the Soveraignty belongeth unto them not because they were Domini utriusque ripas when they had both England and Normandy and were Lords of both shores for Edward the first at that time had not Normandy but that it is inseparably appendant and annexed to the Kingdom of England our Kings being Superior Lords of the said Seas by reason as the very Record mentions of the said Kingdom and since that the Soveraignty of the Sea did alwaies appertain unto the English King not in any other Right then that of the Kingdom of England no Prince or Republique ought or can doubt the Tittle by which our present claim is deduced 't is in right of Britannia that the same is challenged 't was in that right the Romans held it the claim justified Ed. 3. and his Rose Noble though there are other reasons regarding to the Lancastrian Line which yield a Colour for the use of the Port-cullis in the Roal Banners of England
Recovery some have held that the Defensive did not extend so far notwithstanding if there were no Treaty which had concerned this Conquest yet it would seem more reasonable to comprehend the Recovery in the defensive if it be general For as it hath for its end to preserve the Allie in his State and that to attain unto it the Forces must not only remain in the Countrey of the Allie to attend the Enemy but after denunciation and other acts of hostility done by the Enemy they must enter into his Country to the end to prevent him or divert him from attempting any thing against the Allie The Offensive being judged by the aggression â—…and not by that which follows by a stronger reason they ought to enter into the Countrey conquered from the Allie for the recovery thereof but excuses in this kind proceed from those who fail in their faith courage or means to recover Contribution is one of the main ingredients in a League and is of great difficulty to regulate It is made either in Men or Money the Men are entertained by all Parties or by him only that hath need or otherwise as the League is Henry the 8th made a League with Francis the French King against the Emperor Maximilian and Ferdinand for the Recovery of Millane which he did the protection of his Neighbours and Reduction of the Swisse from the Imperial side for which he employed the Bastard of Savoy the agreement was of reciprocal Succour of 10000 Men if the War were made by Land and of 6000 if it were made by Sea and in all other occasions the French King was bound to assist the King of England with 12000 Launces and the King of France with 10000 Foot at his charge that had need So where Contribution is concluded for Money there are difficulties that do arise from the Person or Place where it must be kept for to deliver it to the hand of the strongest is not safe for fear they shall not be able to call him to account to lay it in a weak Place were to oppose it to the attempt and force of the strongest or to him that shall first take Armes but it has been usual the summe has been advanced not till after the War begun XII Leagues concluded by the Deputies of the Confederates there sometimes falls out a Difficulty who shall ratify and declares himself first In the League which was made between Francis the first the Pope and the Princes of Italy the King refused to ratify until the Pope and Venetians had ratify'd before him and in that he so cunningly wrought that he procured the Colleagues to declare and begin the War whilst that he treated secretly for himself to the end he might make his Conditions with more advantage this he declared was for fear those Italian foxes should shew him the like XIII Leagues made for an Enterprise succeed seldom according to the hope of the Allies if the Enterprise be long for besides the preparations be long the opinions divers in the pursuit the resolutions inconstant the interests of Princes or States in a League may change with time or with the practise of him against whom they are in League in withdrawing some one of them or making him to suffer more losse then the rest for seeing himself ill defended or succoured by his Confederate and that he was in a greater danger to loose then his Companions he then studies to retire and to make his accord apart as did the Venetians with the Turks after the losse of Cypresse XIV The ordinary causes of the Rupture of Leagues are distrust jealousy as if one hath had conference with the Enemy without the consent of the rest if that which serveth for the safety of one diminish the safety of the other inconstaney variety cowardize division usurpation without the consent of the others So if he treats with the Enemy not comprehending the other Allies but as adherents as Lewis the 12th left the League of the Venetians for that they had made a Truce with him and had presumed to name him only as an Adherent by the opinion of Bryan that if all the Subjects of England would make War with a Confederate Prince or Republique in League with the King of England without the assent of the King of England that such a War was no breach of the League and upon the same reason was the resolutions of the Judges in the the Duke of Norfolk's Case where the Question was whether the Lord Herise and other Subjects of the King of Scots that without his assent had wasted and burnt divers Towns in England and proclaimed Enemies were Enemies in Law within Statut of 25 E. 3. the League being between the English and Scots and resolved they were and that the League remain'd XV. The Succours that one Confederate must afford another Confederate according to the Laws of Leagues against Confederate is of a great consequence Three Princes Allied the one makes War against the other and demands succours from the third in this case if the Treaties of Alliance be only for Friendship it is certain he is not bound to give any succours But if the Treaty carries an Offensive League he must succour the most antient allied by a precedent alliance If the precedent Alliances have been made both at one time he must succour him that is allied in all Offensive and Defensive Leagues but if the League be Offensive and Defensive of either side he ought not to succour either but he may mediate a Peace and cause the difference to be judged by the Common Allies which being propounded with a Declaration that the refuser or having once submitted will not yield to Judgment that he will succour the other as the Swede and Swiss upon severall occasions hath done notwithstanding in point of State in such occasions they usually ballance their Estate and looking more to safety then Justice they succour him who being enforc't may weaken the powerful who is more to be feared yet to unjust Wars there is no obligation then certainly he ought to be preferred who hath a just cause of War XVI By the Laws of Alliances Princes may aide particular and Common Allies if they be wronged by one of the Allies But he which is not comprehended in the Treaty of Alliance cannot be defended against him that is allied without breach of the Alliance therefore Mediation in such cases is the only hopes of ahe oppressed which not having its effect if the oppressed put themselves into the protection of the Mediator they then become in the nature of his Subjects and then that Prince is oblidged to their succour and defence even against his Allies and this is by natural right XVII By the Laws of Leagues though the Oath binds only the Person yet the Promise binds the successor for though some do hold that Leagues do depend upon the
Sometimes a General Truce holds the place of a Peace as that of a hundred years Such Truces are commonly made betwixt Princes that are equal in Power and will not quit any thing of their Rights by Peace and yet desire to live quietly in the State wherein they are satisfying by this medium the Point of Honour IV. Treaties of Truce are many times less subject to Rupture then a Peace which is made perpetual for Princes or States that find themselves aggrieved with a Treaty that is perpetual seek out plausible reasons to forsake it seeing the grievance cannot be otherwise repaired but if the time be limited and expired they may pursue that which they think ought to be granted and the other may oppose and if they have a desire to continue the Truce there is nothing so easy as to renew it Hence it is become a Maxim in State that seeing Treaties are grounded on the Interests of Princes which change with the time it is necessary to change and settle them at the end of the time or to break them off for it is in vain to trust to a bare Friendship A Truce is likewise made to advance a Peace and to treat it so likewise it is sometimes promoted for the more honest discharge of a League which is made with some other Prince whom they have accustomed to comprehend therein so as a Peace following it or a Truce not being accepted by him they take accasion to leave the League it being not his fault that leaves it that the War was not ended And although it seems that a Truce cannot by its condition prejudice the pretention in the Principal yet it is most certain that if he which is chased out of a contentious State consents that during the Truce the Commerce shall be forbidden to his Subjects he doth wholly stop the gate as Lewis the 12th did in the Truce which he made with Gonsalve after the Conquest of the Realm of Naples In England by the Stat. 2 H. 5. cap. 6. Robbery spoiling breaking of Truces and Safe-Conducts by any of the Kings Liege People and Subjects within England Ireland and Wales or upon the main Sea was adjudged and determined to be High-treason but this branch concerning High-treason is repealed by the Stat. of 20 H. 6. cap. 11. but by the said Act of 2 H. 5. for the better observation of Truces and Safe-Conducts Conservator Induciarum salvorum Regis conductum was raised and appointed in every Port of the Sea by Letters Patents his Office was to enquire of all offences done against the Kings Truces and Safe-Conducts upon the main Sea out of the Counties and out of the liberties of Cinque Ports as Admirals of Custom were used to do Sir John Trebiel was committed to the Tower for taking a French Ship and being brought into Parliament did there justify the same but at last confessed his fault and begged the Kings Pardon generally all Leagues and Safe-Conducts are or ought to be of Record that is they ought to be Inrolled in the Chancery to the end the Subject may know who are in Amity with the King and who not who be Enemies and can have no Action here and who in League and may have Actions personal here Sometimes they have been inrolled in the Wardrobe as being matters of State Note In all Treaties the power of the one party and the other ought to be equal nor are they to be held firm till ratified Before the Statute when any breach of Truces or Leagues happened or was occasioned by the misdemeanours of any of the King of Englands Subjects there did usually issue forth Commissions under the Great Seal of England to enquire of the fringers of the same and to punish and award satisfaction to the injured VI. Princes who neither love nor hate any thing absolutely seem generally inclined to neutrality and in that govern themselves in their Friendships according to their interests and Reasons of State in effect is no other but Reason of Interest Neutrality may be of two sorts the one with Alliance with either part the other without Alliance or so much as the least tie to the one or other which is that which properly may be called Neutrality The first is governed by the Treaty of Neutrality the latter by the Discretion of the Neuter Prince whose carriage ought alwaies to be such as that he may not give the least glimpse of inclining more to one then to another VII The advantages of Neutrality are that the neuter Prince or Republique is honoured and respected of both Parties and by the fear of his declaring against one of them he remains Arbitrator of others Master of himself And as a Neuter neither purchases Friends nor frees himself from Enemies so commonly he proves a prey to the Victor hence it is held more advantage to hazard in a Conquest with a Companion then to remain in a State wherein he is in all probability of being ruined by the one or the other But Princes that are powerful have used generally to preserve a Neutrality for whilst Petty Princes and States ruin themselves by War he fortifies himself with means and in the end may make himself Judge of their differences On the other hand it hath been conceived that Reipubliques that are weak what part soever they take it will be dangerous unto them especially if they are in the midst of two more powerful States then themselves but experience hath made it appear to the contrary that Neutrality is more beneficial to a weak Prince or Reipublique so that they that are at War be not barbarous or inhumane for although a Neutrality does not please either party yet in effect wrongs no Man and as he doth not serve so he does not hurt besides his declaration is reserved till the issue of the War by which means he is not oblidged that by siding with eiher party to gain or loose by the War VIII But if the Neuter be prest by necessity to declare himself he must do it for the most powerful of the two parties following that Roman Maxime That either they must make themselves the strongest or be a friend to the strongest So they of Strasburgh declared for the Empire against the French on the other hand if the Neuter sees that joyning to the weaker will ballance the power of the stronger and by this counterpoize reduce them to reason the same hath been generally followed upon the Maxime That the safety of States consist chiefly in an equal counterpoize of the one and the other for as the greatness and oppulancy of a Prince draws after it the ruin of their Neighbours it is wisdom to prevent it CHAP. X. Of the immunities and Priviledges of Ambassadors and other publique Ministers of State I. Of the Function of Ambassadors and Agents generally II. Of their right and protection by the Laws Divine and of Nations III. Of
dissembled or connived at or else the Ambassadour be commanded to depart the Realm and if the crime be cruel and publiquely mischievious the Ambassadors may be sent with Letters of Request to his Master to inflict punishment according to the offence So likewise in the precaution of a great mischief especially publique if there be no other remedy Ambassadors may be apprehended and executed and if they oppose by force of Arms they may be slain In the Bishop of Rosses Case An. 13 Eliz. the question was An Legatus qui rebellionem contra Principem ad quem Legatus concitat Legati Privilegiis gaudeat non ut hostis poenis subjaceat and it was resolved that he had lost the Priviledge of an Ambassador and was subject to punishment nor can Ambassadors be defended by the Law of Nations when they commit any thing against the State or Person of the Prince with whom they reside And why Ambassadors are in safety in their Enemies Countries and are to be spared when they commit offences is not so much for their own or Masters sake but because without them there will never be an end of hostility nor Peace after Wars neither is the Name or Person of an Ambassador so inviolable either in Peace or in time of War but there may be both a convenient time and a good occasion to punish them and this standing with the Laws of Nations VII The Signiory of Venice understanding that certain Traytors who had revealed their Secrets to the Turk were fled for protection into the House of the French Ambassador at Venice sent Officers to search the Ambassador's House but the Ambassador refusing them enterance the Senate commanded certain Cannon to be brought out of the Arsenal to beat down his House which when he saw planted he surrendred up the Traytors 1 The Ambassadors of Tarquins Morte affligendos Romani non judicarunt quanquam visi sunt ut hostium loco essent jus tamen Gentium voluit 2 The State of Rome though in case of most capital crimes exempted the Tribunes of the People from question during the Year of Office 3 The Ambassadors of the Protestants at the Councel of Trent though divulging there the Doctrine of the Church contrary to a Decree there enacted a crime equivalent to Treason yet stood they protected from any punishment It is generally consented by all the Civilians That Legis de jure Gentium indictum est eorum corpora salva sint propter necessitatem Legationis ac ne confundant jura commercii inter Principes 4 Viva the Popes Legates was restrained by Henry the Second for exercising a Power within his Realm not allowed or admitted of by the King in disquiet of the State and forced to swear not to act any thing in praejudicium Regis vel Regni 5 On the other hand it has been answered that they are by the Laws of Nations exempted from Regal Tryal all actions of one so quallified being made the act of his Master or those whom he represents until he or they disadvow and injuries of one Absolute Prince or State to another is factum hostilitatis and not Treason the immunity of whom Civilians collect as they do the rest of their grounds from the practise of the Roman State deducing their Arguments these examples The Fabii Ambassadors from Rome were turn'd safe from the Chades with demand of Justice against them only although they had been taken bearing Arms with the Ethurian their Enemies Titus Liv. 2. Dec. 6 King Edward the Second of England sent amongst others a French Gentleman Ambassador into France the King upon this arraigned him as a Traytor for serving the King of England as Ambassador who was his Enemy but the Queen procured his pardon 7 Henry the Third did the like to one of the Popes Ambassadors his Colleague flying the Realm secretly fearing timens pelli sui as the Records has it Edward the First restrained another of the Popes turbulent Embassadors untill he had as his progenitors had informed the Pope of the fault of his Minister and received satisfaction for the wrongs 8 Henry the Eighth commanded a French Ambassador to depart presently out of the Realm but because he was the professed enemy of the Seat of Rome 9 Lewis de Prat Ambassador for Charles the Fifth was commanded to his house for accusing falsly Cardinal Wolsey to have practised a breach between Henry the Eighth and his Master to make up the amity with the French King 1523. 10 Sir Michael Throgmorton by Charles the Nineth of France was so served for being too busie with the Prince of Condy his faction 11 The Popes Ambassador at Paris was arraigned for practising certain Treasons in France against the King in the Parliament of Paris and was there found guilty and ccommitted to Prison 12 Doctor Man in the Year 1567 was taken from his house at Madrit in Spain and put under a Guard to a straighter Lodging for breeding a scandal as the Condo Teri said in using by Warrant of his place the Religion of his Countrey although he alledged the like permitted to Guzman de Silva their Ambassador in England and to the Turke no less then in Spain 13 Francis the First King of France sent Caesar Trâ—…gosus and Anthony Rincone Ambassadors to the Turk they were surprised by the Armies of Charles the Fifth on the River Poe in Italy and were put to death the French King complained that they were wrongfully murdered but the Emperor justified their death for that the one being a Genois and the other a Milanois and his Subjects feared not to serve the King his Enemy 14 Henry the Eighth being in League with the French and at enmity with the Pope who was in League with the French King and who had sent Cardinal Poole to the French King of whom King Henry demanded the Cardinal being his Subject and attainted of Treason sed non praevaluit 15 Samuel Pelagii a Subject to the King of Morocco pretended that he was an Ambassador sent unto the States General of the United Provinces he came to them and accordingly they did treat with him afterwards he departed and being upon the Sea he did take and spoil a Spanish Ship and then came into England the Spanish Ambassador here having received intelligence of the spoliation caused his Person to be seized upon intending to proceed against him as against a Pyrat and imprisoned him and upon conference with the Lord Coke Dordridge and other Judges and Civilians they declared their opinions That this Caption of the Spaniards Goods by the Morocco Ambassador the same is not in Judgement of Law a Pyracy in regard it being apparent that the King of Spain and the King of Morocco are enemies and the same was done in open Hostility and therefore in Judgement of Law could not be called Spoliatio sed legalis Captio and a Case out of 2 R. 3. fo 2.
Peace for himself a part being angry with Edw. the 4th for making the same Philip. Com. lib. 4. c 40. So Lewis the 11th concluded a Truce for nine Years with Edw. the 4th when he had invaded France Phil. Com. lib. 4. cap. 8. * For the Right remains with him how ever he hath lost the possession Grot. de Jure Belli ac Pacis lib. 2. ch 16. §. 18. 2 H. 5. cap. 6. 20 H. 6. cap. 11. †And at the the Lords of Request of and Commons was pardoned he making satisfaction for the losse 11 H. 4. ad Parliament tent quenden Hill vide Cotton Abridgement 19 E. 4. 6. B. 18 H. 6. ca 4. 20 H. 6. cap. 1. 19 E. 4. 6. B. Maxime Rott Scotiae de An. 10 E. 3. m. 36. intus de puniendo illos qui contra formam Treugae hominibus de Scotiae concessâ—… deliquerint Much practised by the Free Princes and States of the Empire †An. 1674 Consul Quintus ad Achaeos quod optimum esse di cant non interâ—…erponi vos bello imo nihil tam alienam rebus vestris est Quippe sine gratia ne lignitate praemiuâ—… 〈◊〉 eritis Lucius lib. 35 Scripta Ammirat disc polit l. 18. disc polit Pompon Leg. si quis D. de Lecationibus Livy lib. 1. 6. Kings conquer ed in a solemn War and deprived of their Kingdom with other Royalties loose the right Legation P. Aemilius detain'd the Heralds of Perseus whom he conquered †P. Poole a Traitor fled to Rome the Pope sent him Ambassador to the French King of whom the King of England demands his Subject sed non praevaluit Co. Inst. 3. fo 153. Rot. Pat. 3. R. 2. num 18. * Legatus ejus vice fungitur a quo destinatur honorandus est sicut ille cujus vicem gerit Legatos violare contra jus Gentium est â—…2 Assize pl. 49. Note this was 3 years before the making of the Stat. of 25 E. 3. quaere if such a Prorex is within the Stat at this day Cambden 157â—… quaestionum ibi pro posticarum quarta Daniels Hist. of Henry the Second Carolus quintus Imp. Galliae Venetorum Florentinorum ad bellum sibi indicendum missos dâ—…duci jussit in locum qui a comitatu sno abesset triginta millarum aria Guic. l. 18. Bellaius lib. 3. †Card. Arnold Ossat in his 353 Epistle Coke 4. Iust. 153. Menander Protector Justino Imper. Avarorum Legatos contra jus Legationum in vinculis habuit Cothmannum Resp. 32. num 29. Co. Inst. 4. 153. 2. H. 5. Cap. 6. 20 H 6 Cap. 11. * Quanquam visi sunt commisisse ut Hostium loco essent jure tamen Gentium valuit †Fit reus magis ex equo bonoque quam ex jure Gentium Bomilicari comes ei qui Romam fide publ venerat An Enemy is boundtowhom they are sent 〈◊〉 their Priâ—…ge oblidâ—… 〈◊〉 those 〈◊〉 whose 〈◊〉 thâ—… 〈◊〉 without leave For if they go to or come from their Enemies or make aâ—…y hostile attempâ—… they may be slain Livy lib. 26. Grotius de jure Bâ—…li â—…c Pacis lib 〈◊〉 Cap. 18 §. 4. nâ—… 4 5. Senatus faciem secuâ—… attulerat auctoritatem Reip M. Tullius 8. * Co. Inst. 4. f. 152. Sic Carolus quintus Legato Ducis Mediolanensis ut subditi sui imperavit ne a Comitatu suo abâ—…cederet Guicciardi indicat jam loc Hill 13 Eliz. Bishop of Rosses Case Co. 4. Inst. 15â—… August de Leg. Antiq. Rom. Acta Trideâ—… Concilii Pompon Leg. ult D. de Lâ—… patis Benedict in Vita Henr. 2. 〈◊〉 Colloquium Machiav lib. 2. cap. 28. Rott Scaccar Westm. Claus. Edw. primi Bulstr. 3. part fo 28. cited in Marshe's Case Sir Henry Woot on fo 211. stat Cris. Vide Sir Robert Cottens posthum and the Proposit. to K. James The opinion of the Lord Coke 4. Inst. 153 c. Hobart f. 71. * Distingui ferme ac in re solent crimine Vide â—…utam l. 10. ubi Rex Galliae hans ab causam â—…ratus â—…acatur Vide euadem lib. 11. †Grot. de jure Belli ac Pacis l. 18. §. 4 5 6 7. Rex facisne metu regium nuntium populi Romani Quiritum vasa comitesque meos yet an Ejectment hath been brought and left at the house of the Ambassador and it was allowed good and conceived no breachof their priviledge in the case of Monsieur Coâ—…bert for York House Mich. 28 Car. 2. in Banc. Reg. †Grot. de jure Belli ac Pacis lib. 2. cap. 18. * Co. Inst. 4. 153. Certain it is that none dareth presume to meddle either with their Persons Goods or Servants without leave had the contempt of which has been punish'd with imprisonment Barkseate in memor Grotii †Bodinus de Repub. l. 3. * Jac. Aug. 〈◊〉 l. 27. â—…ta Auguâ—… Barbadico 〈◊〉 of Vec 〈◊〉 1 86. Paulus Parâ—…ta in Hist. Venice lib. 7. Zeno interceeding for the Magnets to T. Quintus and the Legates with him besought them with tears ne unius amentiam civitati assignarent suo quemque periculo facere Livy lib. 40. For the knowledge of the cause ought to proceed the dedition non decet homines dedere causa non cognita Plutarch in his Romulus Attainted by Act of Parliament 12 H. 7 Co. Inst. f. 180. 5 H. 8. vide Lord Herberts Hist. of Henry the Eighth Pipin receiv'd and would not deliver up those that fled to him out of Newstria opprest by Tyranny Frededegar in reb Pep an 1188. * Yet out of Churches beyond Seas for private offences which are universal Sanctuaries the offenders have been taken out in Lusitania Ferdinand Lord Chamberlain was taken by force out of the Church and burnt for forcing a Noble Virgin Mariana lib. 11. Charles Duke of Burgundy delivered up to Lewis the 11th the Earl of St. Paul Constable of France who flying to some of his own Cities obtained Letters of Safe-Conduct to come and commune with the Duke in order to the making his peace with the King but the Duke after he had him in custody delivered him to the King of France who immediately after cut off his head Phil. Comines lib. 4. c. 12. †Ludovicus Pius the Emperor received those that fled to him from the Roman Church as appears by his Decree anno 817. and Luther himself did not want Princes to protect him from the fury of St. Peter's Chair Vide his Colloquiums printed in London an 1663. Livy vide Sir Walter Raleigh lib. 5. cap. 6. 〈◊〉 2. 34 Elizabethae Cambden f. 35. Vide Cambd. anno 1585. An. 1660. That politik Princes gave the Scots a more equitable answer when they demanded Bothwell she answered that she would either render him up or send him out of England Cambden annh 1593. Hist. Rep. Ven. in Vita Tebastiano Cynei Duke of Venice An. 1164. Phil. Comines lib. 1. cap. 1. Idem de finibus 3 Vir bonus sapiens Legibus parens
was vouched where a Spanish Mere chant before the King and his Councel in Camera Scaccarii brought a Bill against divers English-Men there in setting forth quod depradatus spoliatus fuit upon the Sea juxta partes Britanniae per quendam Virum bellicosum de Britannia de quadam Navi and of divers Merchandizes therein which were brought into England and came into the hands of divers English-Men naming them and so had process against them who came in and pleaded that in regard this depradation was done by a Stranger and not by the Subjects of the King and therefore they ought not to be punished in regard that the Stat. of 31 H. 6. Cap. 4. gives restitution by the Chancellor in Cancellaria sibi vocato uno Judice de uno Banco vel altero and by the Stat. of 27 Ed. 3. Ca. 13. that the restitution may be made in such a case upon proof made by the Chancellor himself without any Judge and upon that case it was resolved Quod quisquis extraneus c. who brings his Bill upon this Stat. to have restitution debet probari quod tempore captionis fuit de amicitia Domini Regis and also quod ipse qui eum coeperit spoliavit fuit etiam sub obedientia Regis vel de amicitia Domini Regis sive Principis quaerentis tempore spoliationis non inimicus Domini Regis sive Principis quaerentis quia si fuerit inimicus sic coeperit bona tunc non fuit spoliatio nec depradatio sed legalis captio pro ut quilibet inimicus capit super unum alterum the Judgement of which case was held to be Law and thereupon the Judges delivered their opinions that the Morocco Ambassador could not be proceeded against as a Pyrat 16 In the time of Philippe the Second of Spain the Venetian Ambassador in Madrid protecting one Bodovario a Venetian an offender that fled into his house and denying the Corigidor or Justices to enter his house where the Ambassador stood armed to withstand them upon complaint made the Ambassador was removed unto another house until they had searched and found the offendor then conducting back the Ambassador with all due respect a Guard was set upon his house to stay the fury of the enraged People the Ambassador complaining to the King he remitted it to the Supream Councel they justified the proceedings condemning Bodavario to loose his head and other the Ambassadors Servants to the all which the King turned to Banishment and to satisfy the most Serene Republique sent the whole process to Inego d' Mendoza his Ambassador at Venice and declaring by a publique Ordinance unto that State and all other Princes That in case his Ambassador should commit any offence unworthily and disagreeing to their qualities and professions of Ambassadors they should not enjoy the Priviledge of those Officers but would refer them to be judged by the Laws of that Prince or States where they then resided and where they had injured it was a great and a noble Saying 17 In the Year 1568 Don Guhernon d'Espes was ordered to keep his house in London for sending scandalous Letters to the Duke de Alica unsealed and in 1586 Don Bernardino de Mendoza was restrained first and after commanded away 8 The manner of proceeding against them has been conceived necessary to be that some of the Chief Secretaries of State were sent to the Ambassadors and by way of advice that understanding that the Common People having received notice of c. And that they cannot but conceive a just fear of uncivil carriage towards their Excellencies or their followers if any the least incitement should arise and therefore for quiet of the State and securing of their Persons they were bound in love and respect to their Excellencies to restrain as well themselves as followers untill a further course be taken by legal examination where the aspersion began the same being in their opinions the best and the only way to prevent the danger c. Sometimes if the Parliament be sitting the King acquaints the Lords and then departing who having had conference with the Commons conclude of a Message to be sent to the Ambassadors either by requiring an account of the matter or confining of them the Persons to be sent the two Speakers of both Houses with some convenient number of either having their Maces or Ensigns of Offices born before them to the Ambassadors Gates and then forborn and then requested speech with them let them know that a relation being made that day in open Parliament of c. they were deputed from both Houses the Great Councel of the Kingdom to the which by the fundamental Laws of this Nation the Chief care of the Kings safety and the Publique Peace and quiet of the Realm is committed and that they were no less the High-Court of Justice or Supersedeas to all others for the examining and punishing all attempts of so High a nature as c. if it carry truth and having executed their Commission concluded that the Houses to show that reverence which they bear unto the dignity of his Master by their Message they two that never are imployed but to the King alone were at that time sent c. and if the Houses shall upon reâ—…n of their Speakers conceive their answer if it be a matter that requires it are such as may justly deserve thâ—… being confined they then make an address to his 〈◊〉 to confine them to their Houses restraining their â—…ure untill the Prince or State whom they repreâ—… 〈◊〉 â—…cquainted with their offence And so it was 〈◊〉 â—…n 44 H. 3. to the Popes Legates in England and 28 E. 1. XI If a Foraign Ambassadors being a Prorex commits here any crime which is contra jus Gentium as Treason Felony Adultery or any other crime which is against the Law of Nations he looseth the Priviledge and dignity of an Ambassador as unworthy of so high a Place and may be punished here as any other private alien and not to be remanded to his Soveraign but of courtesy X. But if any thing be malum prohibitum by any Act of Parliament private Law or Custom of this Realm which is not malum in se jure Gentium nor contra jus Gentium an Ambassador residing here shall not be bound by any of them but otherwise it is of the Subjects of either Kingdom for if a French Merchant or Spanish Merchant trades or imports any prohibited Goods he must at his peril observe the Laws of England and so it was adjudged Pasc. 33 Eliz. in the Exchequer Tomlinson qui tam versus Henry de Vale â—…l upon the Stat. of 19 H. 7. Ca. 21. but if an Ambassador imports any prohibited Goods econtra In Causes Civil XI The Office of an Ambassador does not include a procreation private but publique for the King his Master nor for any several Subject otherwise then as