resist may happen to be slain yet the fault will lie at their own doors for hindering the execution of right and that which the Law most justly approves of XIX This right of changing of Dominion is so odious that in the taking of Goods if by any possibility the right Owners may have restitution the same has been done and though a larger then 24 hours may happen between the capture and recapture and so may pernoctare with the Captor yet restitution may be made And therefore if he who hath Letters of Mark or Reprisal takes the Ships and Goods of that Nation against whom the same are awarded and brings the same into a Neuter Nation the Owners may there seize her or there the Admiral may make restitution by Law as well the Ship 's Goods to the Owners as the Persons captives to their former liberty for that the same ought first to have been brought infra Praesidia of that Prince or State by whose Subjects the same was taken And wth this agrees the Common Law for a Dunkirker having taken a French Vessel sold the same at Weymouth whether it had been driven before it was brought infra Praesidia Dom. Regis Hisp. it was in such case rul'd that if a Ship be taken by Piracy or Letters of Mark and Reprisal and is not brought infra Praesidia of that Prince or State by whose Subject the same was taken the same could not become lawful prise nor were the Owners by such a caption divested of their property But if the Caption be Ships of War the property will be immediately in the Captors and never divested unless afterwards vis manu forti be in Battle regained XX. Upon the sharing the Spoil of the captivated Ships regard is had to the Ships present not the Captors only for his reward must be the encouragement of his Prince like the Roman Coronas of which there were various according to the atchievement of the Conqueror in imitation of which our Soveraign in his Royal encouraging Medals follows the example to his deserving Commanders as so many Ensigns to enflame Noble Souls to the performing Acts of Glory and Renown I say the profits of Prises are to be equally divided amongst the Ships present and not solely to the Captor for if Letters of Reprisal are granted to two Ships and they happen both of them at Sea to meet a prise and the one attaques and enters her by means of which she becomes absolute the Conquerors yet the other hath right to an equal distribution with the Captor both in Ship and Goods although he did nothing in the Conquest the reason is for although he mist the opportunity of taking her yet the presence of his Vessel armed and prepared for Battle at the time of taking became a terrour to the Ship that was so conquered And by the Law presumed siue ejus that the other Ship would not or could be so taken which Law hath passed the current and approbation of the Common Law as reasonable just and equitable and may be pretended or surmised to entitle the party Captor to the making restitution of a moyety to his Companion then present But if it should so happen that those to whom Letters of Mark are granted should instead of taking the Ships and Goods of that Nation against whom the same were awarded take or spoil the Goods of another Nation in amity this would amount to a down-right Piracy And the Persons offenders should for such fault create a forfeiture of their Vessel and the Owners must be for ever concluded by the same notwithstanding such Commission XXI Therefore Letters of Mark or Reprisal issue not without good and sufficient caution first given for the due observance thereof according to Law the transgression of which creates a forfeiture of the same And therefore having taken a prise and brought the same intra Praesidia the Captor must exhibite all the Ship Papers and captived Marriners to be examined in order to adjudication till when Bulck ought not to be broken without Commission nor may the Captain of the Captor suffer an imbezlement of the lading or sell Barter or dispose of any part without Commission for the King hath a proportion in all prises Such Goods so brought in are not subject to pay Customs XXII By the Law of Nations ipso facto the Dominion of the things taken by those to whom Letters of Mark are granted become the captors till the debt and costs that is the original dammage and subsequent charges are satisfied which being done the residue ought to be restored So the Venetians used their equity having taken the Ships of Genoa did not spoil any of the lading but preserved the same very carefully till the debt being pay'd which done restitution was made of the things entirely without diminution XXIII When for the fault perhaps of a few a debt becomes National by reason of which the Goods of the Innocent become lyable if taken for satisfaction whether by the Law of England the Party ought to have Contribution most certain by the Common Law where more are bound to one thing and yet one is put to the whole burden the Party may have process called Contributione facienda for his releif but when a debt becomes universal or National it seems otherwise For if one lends my Country mony I will not call my self debtor yet I will pay my share so it may seem equitable by the Laws of Charity though not compellable by the Laws of the Land XXIV Yet when depradations have happened to Forraign Merchants and complaint hath been made the Kings of England have often issued forth Commissions to enquire of the same and so it was done upon the Petition of some Merchants of Genoa who complain'd against the Inhabitants of the Isle of Garnsey for a depradation in taking away and detaining their Merchandize and Goods to the value of many thousands of pounds out of a Ship wracked by tempest near that Isle by which the Commissioners were impowr'd to punish the offenders and to make restitution satisfaction for the dammages The like complaint was made by the Merchants of the Duke of Britain of certain depradations committed by the Subjects of the King of England who issued forth the like Commission and to give them reparation and damages for the same so that if the Subjects of the King of England have had their Goods by way of Reprise for the satisfaction of such debt or dammage they may have the benefit of the like Commissions to lick themselves whole out of the estates of the offenders CHAP. III. Of Privateers or Capers I. Of Privateers whether allowable by the Laws of Nature II Of permission of such by the Laws of Nations III. The occasion of their first Institution IV. Whether it be lawful to undertake such an Employment V. Of Commissions generall to endamage an Enemy VI. Of Commissions special and
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
their proof by their marks or Cockets by the Book of Customes or by the Testimony of honest men and if the Wreck belongs to the King the party may sue out a Commission to hear and determine and that by the Oaths of twelve men Or else he may bring his Action at Law and make out his proof by Verdict but such Action must be brought within the year and day Note Flotsam Jetsam and Lagan are Goods on or in the Sea and belong to the King who by Charter hath granted them to the Lord Admiral IX If Goods are wreckt on the shoare and the Lord having power takes them he shall not pay Custome The Admirals of England ut magnus Admirallus Angliae Hiberniae Walliae ac Dominiorum Insularum earundem Villae Calisiae Merchiarum ejusdem nec non Gasconiae Aquitaniae classium marium dictorum regnorum Angliae praefectus generalis c. which are the words of their Patents used at this day do claym all Wrecks arising from any of those places by vertue of their Grants X. King Edward the Second in the first year of his Reign by his Charter granted the Castle of Carisbrook with all the Lands and Tenements in the Isle of Wight formerly belonging to Isabella Fortibus Countess of Albemarle to his great Favourite Peter de Gaveston and Margaret his Wife and the heirs of their two bodies begotten together with sundry other Castles and Lands and commanded Nicholas de Bosco to put him into actual possession and likewise commanded Robert de Sanson Keeper of the Forrest of Parkhurst in that Isle to be intendent to them for the Farm he had granted him for life for the Custody thereof which being after soon reseised into the Kings hands he granted this Castle with all its Services and all his Lands in that Isle to Edward his Son and his Heirs Kings of England and afterwards for the ascertaining what did of right belong to the same Castle an Inquisition went out by which it was found inter alia qd wrecknÌ„ maris Pertinens ad dictum Castrum valet ê‘ annÌ„ 4 S So that by the general Patent of the Admiral will not pass the Wreck of this Isle without special words granted in the Patent Note If the Wreck happened or was occasioned by reason of any fault or negligence in the Master or Marriners the Master must make good the loss but if the same was occasioned by the act of God to avoid an Enemy or Pyrat and the like there he shall be excused CHAP. VI. Of Averidges and Contributions I. Of Goods and Merchandize when subject to be cast over-board II. Of the Account rendred of such ejected Goods and by whom III. Of the Antient Lawes of England as in reference to such Ejectments IV. What Goods must come into the Averidge and what are exempt V. The Master discharged by such acts by the Common Law VI. The Ships Geare or Apparel whether within the Averidge VII The residue of the Goods where tacitly obliged to answer the Averidge VIII Of Goods remaining a shipboard spoyl'd by reason of the ejecting of others where subject to the Averidge IX Where Ship and Lading are both made liable to the Averidge X. Of misfortunes not subject to an Averidge XI Where the remainder of the Goods are exempted from the Averidge and the damage of the ejected Goods falls on the Master XII Damage to the Ship where the Lading contributes and the Standard rate in Contributions XIII The Master becomes a Captive for the redemption of Ship and Lading where lyable to the Averidge and where discharged XIV What Goods are subject to the Averidge XV. Contribution for Pylotage and where the remaining Goods not subject to Averidge XVI Rules general for settling the Averidge I. SHips being Freighted and at Sea are often subject to storms in which by the Ancient Lawes and Customes of the Sea in Extream necessity the Goods Wares Guns or whatsoever else shall be thought fit may in such Extremity be flung over-board but then the Master ought to consult with his Marriners who if they consent not and yet the storm and danger continues the Master may command notwithstanding the casting overboard what he shall judge most fitting for the common safety of the rest If there be a super Cargoe a request ought to be made to him to begin first but if he refuses the Marriners may proceed II. If the Ship so fortunes as to out-weather the Storm and in safety arrives at her Port of discharge the Master and the most of his Crew must swear that the Goods were cast over for no other cause but purely for the Safety of the Ship and Lading The custome of clearing of that Point varies according to the several Countries or places they arrive at III. King William the Conquerour and Henry the First made and ratified this Law concerning Goods cast over-board by Marriners in a Storm in imitation of the Ancient Rhodian Law de jact ' Si ego jecero res tuas de Navi ob metum mortis de hoc non potes me implacitare nam licet alteri damnum inferre ob metum mortis quando periculum evadere non potest Et si de hoc me mesces qd ob metum mortis nil fecisse de comespriorai Et ea quae in navi restant dividantur in communi secundum catalla et si quis fecerit Catalla extra navim quando necessitas non exigerit ea restituat IV. The Ship arriving in safety the remainder must come into the Averidge not onely those Goods which pay Freight but all those that have obtained safety and preservation by such ejection even Money Jewels and Clothes and such like are not exempted But those things which are born upon a mans body Victuals and the like put a Shipboard to be spent are totally excluded from the Contribution The Master ought to be careful that onely those things of the least value and greatest weight be flung over-board V. As this Law does take care that this common Calamity should be born by all the parties interessed by a general Contribution so the Common Law takes notice of the misfortune and makes provision to Indempnifie the Master and therefore if the party Owner of such ejected Goods shall bring an Action against the Master or Owners of the Vessel the Defendant may plead the special matter and the same shall barr the Plaintiff VI. But if the Ships Gear or Apparel be lost by Storm the same is not within the Averidge but is accounted like unto a Workman breaking or spoyling his Tools So for Goods secretly brought into the Ship against the Master or Pursers knowledg no Contribution is to be made except in the avoiding of a danger as the flinging the Most overboard or the slipping the Tow-Anchor or Boat This Order is observed generally in the rating
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
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
yet it does not wholly remove the disease or non-ability as to the points of descent or hereditary transmission and resembles a Person in case of an Attainder and therefore if he purchases Lands and dyes without issue the Lord by Escheat shall have the Lands And therefore in lineal descents if there be a Grand-father natural born Subject Father an Alien Son natural 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 shall not inherit the Grand-father for the Denization does not remove neither the personal nor the consequential impediment or incapacity of the Father So likewise in Collateral descents As for instance the Father a Natural born Subject has issue two Sons Aliens who are both made Denizens and one dyes the other shall not inherit him XII The like Law in Dower a Man seized of Lands in Fee and takes an Alien to Wife and then dyes the Wife shall not be endowed But if the King takes an Alien to Wife and dyes his Widdow Queen shall be endowed by the Law of the Crown Edmund Brother of King Edward the I. married the Queen of Navarre and dyed and it was resolved by all the Judges that she should be endowed of the third part of all the Lands whereof her Husband was seized in Fee A Jew born in England takes to Wife a Jew born also in England the Husband is converted to the Christian Faith purchaseth Lands and enfeoffeth another and dyeth the Wife brought a Writ of Dower and was barred of her Dower Quia vero contra justitiam est quod ipsa dotem petat vel habeat de temento quod fuit viri sui ex quo in conversione sua noluit cum eo adhaerere cum eo convert If an Alien be a Disseisor and obtains Letters of Denization and then the Disseisor release unto him the King shall not have the Land for the release hath altered the Estate and it is as it were a new purchase otherwise it is as if the Alien had been the feo ffee of the Deseissee And though Aliens are enabled by Charter of Denization to a transmission Hereditary to their posterity of Lands yet a Denizon is not capable of Honour nor a transmission of the same without Naturalization by Parliament for by the Charter of Denization he is made quasi seu tanquam ligens but to be a Member of Parliament he must be ligens revera non quasi for by his becoming a Noble-man he claims the place of Judicature in Parliament the which he cannot till naturalized by Act of Parliament and then he may claim as eligible to the same or any other CHAP. IV. Of Aliens and Crials per meditatem where allowed and where not I. Of the manner of Aliens obtaining Trials per medietatem at the Common-Law and of the Antiquity of the same II. Of the making the same a Law universal within this Realm as to some Persons afterwards general as to all III. Of the Writ and some Observations on the summons of such an Inquest IV. Of the opportunity lost or gained by praying this immunity V. Of the awarding of Tales upon request on such Enquiries VI. Where this immunity does not extend in Aliens and where it does in matters Civil and Criminal VII Of the validity of a witness Alien and of an Infidel VIII The tittle of a Renegadoe IX Of the benefit of the Kings Pardon whether it extends to an Alien whose abode is here but happens to be absent at the time of the promulging I. TRiatio Bilinguis or per medietatem linguae by the Common-Law was wont to be obtained by Grant of the King made to any Company of Strangers as to the Society of Lumbards or Almaignes or to any other Corporation or Company when any of them were impleaded the moyety of the Enquest should be of their own Tongue this Trial per medietatem in England is of great Antiquity for in some cases Trials per medietatem was before the Conquest Viri duodeni Jure Consulti sex Walliae totidem Anglis Wallis jus dicanto and as the Commentator observes it was called duodecem Virale Judicium II. This immunity afterwards being found commodious to us Islanders became universal for by the Statute of 27. E. 3. cap. 8. It was enacted that in Pleas before the Major of the Staple if both Parties were Strangers the Trial should be by Strangers but if one Party was a Stranger and the other a Denizon then the Trial should be per medietatem Linguae But this Statute extended but to a narrow compass viz. Only where both Parties were Merchants or Ministers of the Staple and Pleas before the Major of the Staple But afterwards in the 28th Year of the same Kings Reign it was enacted That all manner of Enquests which was to be taken or made amongst Aliens and Denizons be they Merchants or others as well before the Maior of the Staple as before any other Justices or Ministers Although the King be party the one half of the Enquest or proof shall be Denizens the other half Aliens if so many Aliens and Forreigners be in the Town or Place where such Enquest or proof is to be taken that be not Parties nor with the Parties in Contract in Plea or other quarrel whereof such Enquest or proof ought to be taken and if there be not so many Aliens then shall there be put in such Enquests or proofs as many Aliens as shall be found in the same Town or Places which be not thereto Parties as aforesaid is said and the remnant of Denizens which be good men and not suspicious to the one Party or other By which Statute the same Custom or immunity was made a Law universal although it be in the Case of the King for the Alien shall have his Trial per medietatem It matters not whether the moyety of Aliens be of the same Country as the Alien party to the action is for he may be a Dutch-man and they Spaniards French Walloons c. because the Statute speaks generally of Aliens III. The Form of the Venire facias in this case is De Nicenet c. quorum una medietas fit de Indigenis altera medietas fit de aliegenis natis c. And the Sheriff ought to return twelve Aliens and twelve Denizâ—…ns one by the other with Addition which of them are Aliens and so they are to be sworn but if this Order be not observed it is holpen as a misreturn It has been conceived of some that it is not proper to call it a Trial per medietatem Linguae because any Alien of any Tongue may serve but that surely is no Objection for People are distinguished by their Language and medietas Linguae is as much as to say half English and half of another
his interrest and the retaking afterwards in Battel gained the Captors a property 'T is true the Civilians do hold that it is not every possession that qualifies such a Caption and makes it become the Captors but a firm possession that is when the prize doth pernoctare with the Enemy or remain in his possession by the space of 24 hours but as this is a new Law so it is conceiv'd to be against the antient as well as the modern practice of the Common Law for the Party in the antient Presidents doth not mention by their Plea that the prize did pernoctare with the Enemy and but general that the same was gain'd by Battle of the Enemy But if such a Recaption is by one of the King of Englands Ships of War their Restitution has been made the Party relieved paying his offering to the Admiral commonly called Salvage Mony VIII This right of changing of Dominion or Property by force of Arms is so odious that in the taking of Goods if by any possibility the right owners may have restitution the same hath been done And although a larger time then 24 hours happens between the capture and recapture and so may pernoctare with the Captor yet restitution may be made and therefore if one Enemy takes the Ship and Merchandize of another Enemy and brings her into the Ports or Havens of a Neuter Nation the Owners may seize her and the Admiral of that Neuter Nation may in some cases restore the Ship and Goods to their Owners and the Persons captive to their former liberty the reason is for that the same ought to have been brought infra Praesidia of that Prince or State by whose Subject she was taken A Dunkirker having seiz'd a Frenchmans Vessel super altum Mare sold the same with her lading at Weymouth whether it had been driven before she was brought infra Praesid Dom. Reg. Hispaniae the Frenchman coming into Port then claims the benefit of the Laws of Nations the King of England being then in amity with both their Princes and that restitution be made in which case it was resolved by all the Judges that if there be a Caption by Letters of Marque or by Piracy and the Vessel and Goods are not brought infra Praesidia of that Prince or State by whose Subject the same was taken the same will not divest the Property out of the Owner with this agrees the Law Civil and restitution may be made IX But if the Ships of War of Nations in enmity meet at Sea and there be a caption if there be that which is called a firm possession the Neuter Nation cannot re-deliver or make restitution of the thing so acquired and so it was adjudged where Samuel Pellagy with a Ship of War of the Emperor of Morocco took a Spanish Ship and brought the same into England that he could no ways be question'd for the same criminaliter or restitution to be made civiliter for that the King of Spain and the Morocco Emperor were enemies and the King of England in amity with both and that such a caption is not called Spoliatio sed Legalis captio in which there can be no restitution made upon neither of the Stat. of 31. H. 6. cap. 4. or 27. Ed. 3. cap. 13. for he that will sue to have restitution in England for Goods taken at Sea must prove that the Soveraign of the party was in amity with the King of England Secondly that he that took the Goods his Prince was at the time of the taking in amity with the Soveraign of him whose Goods were taken for if he which took them was in enmity with the Soveraign of him whose Goods were taken then the same will not amount unto a depredation or robbery but a lawful taking as every enemy might take of another A Spanish Merchant before the King and his Councel in Camera Scaccarii brought a Bill against divers English-Men wherein setting forth quod depradatus spoliatus fuit upon the Sea juxta partes Britannia per quendam Virum Bellicosum de Britannia de quadam Navi and of divers Merchandises therein which were brought into England and came into the hands of divers Engish-Men naming them and so pray'd process against them who came in and pleaded that in regard this depredation was done by a Stranger and not by the Subjects of the King of England they ought not to answer It was there resolv'd Quod quisquis extraneus who brings his Bill upon this Statute to have restitution debet probare quod tempore captionis fuit de amicitia Domini Regis and also quod ipse qui eum receperit spoliavit fuit etiam sub obedientia Regis vel de amicitia Domini Regis sive Principis quaerentis quia si fuerit inimicus sic ceperit bona tunc non fuit spoliatio nec depredatio sed legalis captio prout quilibet inimicus capit super unum alterum But if the King of England is in enemity with the States of Holland and one of their Ships of War takes a Merchant-Man of the King of Englands and afterwards another Ship of War of England meets the Dutch-Man and his prize and in aperto praelio regaines the prize there restitution is commonly made the Owners paying their Salvage so where the prize is recover'd by a Friend in amity or comes into his Ports restitution is likewise made but when such Goods become a lawful and just prize to the Captor then should the Admiral have a tenth part following the religious example of Abraham after his Victory over the five Kings X. He that is an Enemy may every where be assaulted according to the Laws of Nations Enemies may therefore be attaqu'd or slain on our own ground on our Enemies or on the Sea but to assault kill or spoil him in a Haven or Peaceable Port is not lawful but that proceeds not from their Persons but from his right that hath Empire there for Civil Societies have provided that no force be used in their Countreys against Men but that of Law and where that is open the right of hurting ceaseth the Carthaginean Fleet was at Anchor in Syphax Port who at that time was at peace with the Romans and Carthagineans Scipio unawars fell into the same Haven the Carthaginean Fleet being the stronger might easily have destroy'd the Romans but yet they durst not fight them the like did the Venetian who hindred the Greeks from assaulting the Turkish Fleet who ride at Anchor in a Haven then under the Government of that Republique so when the Venetian and Turkish Fleet met at Tunis though that very Port ackowledges the Ottoman Emperor but in regard they are in the nature of a Free Port to themselves and those that come there they would provide for the Peace of the same and interdicted any hostile attempt to be there made But they of Hamborough were
not so kind to the English when the Dutch Fleet fell into their Road where rid at the same time some English Merchants Men whom they assaulted took burnt and spoil'd for which action and not preserving the Peace of their Port they wereby the Law of Nations adjudg'd to answer the dammage and I think have pay'd most or all of it since But Enemies in their own Ports may be assaulted burnt or destroy'd by the Law of Armes XI If the Ships of any Nation happens to arrive in any of the King of Englands Ports and afterwards and before their departure a War breaks out they may be secured priviledged without harm of Body or Goods but under this limitation till it be known to the King how that Prince or Republique of those whose Subjects the Parties are have used and treated those of our Nation in their Ports But if any should be so bold as to visit our Ports after a War is begun they are to be dealt with as Enemies XII By the Laws of Nations generally all things are the Captors which he takes from his Enemy or which his Enemies gain'd from another by force of Arms so likewise all those Goods that he shall find in his Enemies custody But then it must be apparently manifest and evidently prov'd that it is really the Enemys for if an English-Man should have Goods in the custody of a Dutch Factor at Cales and a War should break out between that Prince and that Republique yet are not the Goods of the English-Man subject to the seizure of the Spaniard it being apparent the owner is not a Subject of their Enemies So likewise if the Goods of Friends are found in the Ships of Enemies this does not ipso facto subject the same to be prize by the Laws of Nations though it be a violent presumption and may justly bear a legal examination till which there may be a securing of the prize till adjudication shall pass So on the other hand if the Ships of Friends shall be fraighted out to carry the Goods of Enemies this may subject them to be prize especially if the Goods shall be laden aboard by the consent or privity of the Master or Skipper though in France they have subjected and involv'd the innocent with the nocent and making both of them prize in the late Flemish Wars with England the Ostenders became obsequious serviceable with their Ships to the Traffick and commerce of both Nations memorable was the action when the War was between the two Republiques Venice and Genoa the Grecian Ships being then imploy'd as those of Ostend were search'd and the Enemies pull'd out but no other matter done however it is most certain let the Commission or Protection of such Ships be what they will if Men will venture to trade under such a cloak it behoves them that the Skipper and his Crew be entirely ignorant for it is his Action that will go far in the freeing or making absolute the prize and Goods so made prize the property is immediately gone and changed be the Owner be who he will he never can claim the same for the Laws of Nations made the Enemies first masters by external Dominion and then by Conquest gave the property to the Captor following that Judgement of the Romans whatsoever they got of their Enemies by valour they would transmit to their Posterity by right XIII 'T is not against nature to spoil the Goods of him whom it is lawful to kill and by the Laws of Nations it is permitted that the Goods of the Enemies may be as well spoiled as taken and Polybius observes that all things of the Enemies may be spoiled their Ships Goods Forts c. XIV And though it may happen sometimes that a War may break out and there may be no public denouncing or proclaiming the same that if a Friend or Neuter should assist an Enemy with Contraband Goods that is Armes c. whether upon such a caption the Goods may be made prize the resolution of which will depend on these Considerations First by Natural Law where either force offer'd is repelled or punishment exacted of one that hath offended there needs no denunciation for Princes are not to stand debating with words or arguments being injured beyond words For War undertaken to resist violence is proclaim'd not by an Herauld but by Nature for it is no more then the invading of one for another or taking of the Goods of the debtor to answer the creditor damage Secondly Interpellation is introduced by the Laws of Nations whereby Princes or Republiques having received injuries may apparently shew that they had no other way to recover their own or that which is due to them for such Interpellation following after injuries committed constitutes that Prince or State in a fault that shall not render satisfaction Thirdly admitting that Interpellation hath gone and satisfaction hath been required for the dammage and no satisfactory return hath been made whether then the Ships or Territories of the Enemy may be assaulted and for that it has been conceiv'd they may for denunciation is no more but to signify that the Parties against whom the same is commenc't are unjust and will not do right and therefore War is begun by the Supream Power now Princes or Republiques having done that which by the Law of Nature they were not oblig'd to do that is after a wrong done abstain'd from War by Friendly demanding of satisfaction or reparation which is requir'd only by the Laws of Nations and publique Justice being deny'd them there remains no other or further obligation on the State the same amounting and indeed is an apparent defiance and Proclamation is no other So that if Indiction is not necessary the caption of such Ships may subject them to be prize perhaps the Leagues of the several Countries may have provided for cases of the like nature XV. And although the Goods of Friends according to the circumstance of the case may be preserv'd by adjudication and restor'd to their owner yet all manner of Goods have not that priviledge for though the Freedom of Trade preserves the Goods of Friends against the rigour of War yet it does not those Goods that supplies the Enemy for War as Mony Victuals Ships Armes and other things belonging thereto for to supply an Enemy that invades our right or seeks the destruction of our Countries is a liberality not to be allow'd of and it certainly stands with necessity that if I cannot safely defend my self or endamage my Enemy without intercepting the things sent it may justly be done but when such Goods are seized whether they give the Captor a right of property or a right by retention to compel that neuter Nation to give Caution for the future by Hostages or Pledges not to supply the Enemy may be a question The Romans who had brought Victuals to the Enemies of Carthage were taken by the
that no particular Men ow not or are oblig'd for the debt which the Community ows that is if the Community have any Goods but if Mony be lent to a Community each particular is naturally bound as they are a part of the whole if the Stock publique be wanting If one lends my Country Money says Seneca I will not call my self his debtor yet will I pay my share And again Being one of the people I will not pay as for my self but contribute as for my Countrey Naturally nay by the very Roman Law one Village was not bound for the other nor one Mans Possessions charged for another no not so much as with the debts publique the reason being added that it was against reason for one to be charged with the debt of another III. And though by the Law of Nature one Mans Goods are not ty'd for the debts of another no nor for those of the publique yet by the voluntary Law of Nations the same might be introduced and brought in and the same may stand well with the Laws of Nature for that might be introduced by custom and tacit consent when even sureties without any cause may subject and make lyable their Goods and Estates for the debts of a Stranger So likewise that for any debt which any Civil Society or the Head thereof ought to make good or because the Soveraign or a Head hath not done right in anothers debt but hath made himself lyable to render satisfaction such a Society may oblige and make lyable all their Goods corporeal or incorporeal for the reddition of satisfaction Hence it was as the Great Justinian observes that this custom was constituted by the Nations grounded on the urgency of humane needs asserted with the greatest of necessities since without this great licence would be given and tolerated for the committing of depradations and injuries especially if only the Goods of Rulers were made lyable who seldom possess any thing that for satisfaction the injured may easily come by whereas those private Men whose commerce are various may be catcht for recompence sometimes with the greatest of ease and freest from danger Besides the Owners of such prize being members of the same Society might more easily obtain mutual right for satisfaction of the injur'd and their own future indempnity then Forraigners could who without such a tye would be very little regarded IV. The benefit which this custom of obligation hath now introduced is become universal and common to all Nations so that People that are at one time griev'd with this burden at another time might be eased of the same and by such taking the oppressed might the more easily obtain Justice War be prevented The Carthagineans would not suffer Ariston the Tyrian to be taken for said they the same will befall the Carthagineans at Tyre and in other Towns of Trade whereto they resort V. A due administration of Justice is not the least sense wherein Princes are styled Gods To deny or delay Justice is injustice Justice is every Mans right who hath not forfeited what he might claim by the Jus Gentium If therefore the Party cannot obtain his Definitive Sentence or Judgement within a fit time against the Person of whom he complains or if here be a Judgement given against apparent right and Law yet if no relief can be had the Bodies or movables of his Subjects who renders not right may be taken VI. In the prosecution of which there must be 1. The Oath of the Party injur'd or other sufficient proof touching the pretended injury and of the certain loss and dammage thereby sustain'd 2. A proof of the due prosecution for the obtaining a satisfaction in a legal way 3. Protelation or denyal of Justice 4. A Complaint to his own Prince or State 5. Requisition of Justice by him or them made to the Supream Head or State where Justice in the ordinary course was deny'd 6. Presistency still in the denyal of Justice All which being done Letters of Reprisal under such cautions restrictions and limitations as are consonant to Law and as the special case may require may issue not only by the Jus Gentium and Civile but by the antient and Municipal Laws of this Kindom VII The Reprisals grantable by the Laws of England are of two sorts Ordinary and Extraordinary The Ordinary are where any English Merchants or their Goods are spoiled or taken from them in parts beyond the Sea by Merchants Strangers and cannot upon Suit or the Kings demanding of Justice for him obtain the same he shall have upon testimony of such prosecution a Writ out of the Chancery to arrest the Merchants Strangers of that Nation their Goods here in England the which is grantable the Subject opprest of Common Right by the Chancellor or Keeper of England who always in such case hath the approbation of the King or Councel or both for his so doing The Extraordinary are by Letters of Marque for Reparation at Sea or any place out of the Realm grantable by the Secretaries of State with the like approbation of the King or Councel or both VIII And as Princes by the Laws of Nations are responsible for injuries publique so should they by the most prudent ways imaginable prevent those that are private not suffering Forraigners if possible to receive wrongs in their Countries For as the Florentine observes If a Man be exceedingly offended either by the publique or by any other private hand in a Forraign Nation and cannot obtain reparation according to Justice he will never leave blowing the coals or cease promoting the injury till the flame break out in War in which he cares not if he sees the ruin of that Kingdom or State where he receiv'd his wrongs Nor should the Prince or State of the Person injur'd value his misfortune at so low a rate as to deny him Letters of Request for that were to heap up injury upon injury but likewise if Justice be deny'd after such Request to Arm him with power to take satisfaction by Reprise vi manu militari Generally there always preceeds Letters of Request 2 or 3 more or less and according to the satisfaction sufficient or insufficient returned in answer to the same Commissions are awarded IX Subjects cannot by force hinder the Execution even of an unjust Judgement nor lawfully pursue their right by force by reason of the efficacy of the power over them But Forraigners have a right to compel which yet they cannot use lawfully so long as they may obtain satisfaction by Judgement But if that ceases then Reprisal is let in Now Judgement is obtained either in the ordinary course by way of Prosecution or Suit or Appeal from the same after Sentence or Judgement given to a higher Court or else in the Extraordinary way which is by way of Supplication or Petition to the Supream Power but we must understand
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
the Fellow Subject of the Captors or of Nations in Amity with his own Soveraign make restitution to the Owner the costs and charges and what other things in equity shall be decreed to the Captor first considered and deducted XX. By the Status of 27 Edw. 3. cap. 13. if a Merchant loose his Goods at Sea by Pyracy or Tempest not being wrackt and they afterwards come to Land if he can make proof they are his Goods they shall be restored to him in places Guildable by the King's Officers ' and six Men of the Country and in other places by the Lords there and their Officers and six Men of the Country This Law hath a very near relation to that of the Romans called De Usu-Captione or the Atinian Law for Atinius enacted that the Plea of Prescription or long possession should not avail in things that had been stoln but the interest which the right Owners had should remain perpetual the words of the Law are these Quod surreptum est ejus rei aeternitas auctoritas esset where by Auctoritas is meant Jus Dominii XXI Yet by the Common Law of England it has been held that if a Man commit Pyracy upon the Subjects of another Prince or Republique though in League with us and brings the Goods into England and sells them in a Market Overt the same shall bind and the Owners are for ever concluded and if they should go about in the Admiralty to question the property in order to restitution they will be prohibited XXII This offence was not punishable by the Common Law as appears by the preamble of the Stat. of 28. H. 8 cap. 15. but the same was determined and judged by the Admiral after the course of the Civil Law but by force of the said Act the same is enquired of heard and determined according to the course of the Common Law as if the offence had been committed on Land XXIII This Act does not alter the offence or make the offence Felony but leaves the offence as it was before this Act viz. Felony only by the Civil Law but giveth a mean of Tryall by the Common Law and inflecteth paines of death as if they had been attainted of any felony done upon the Land The Indictment must mention the same to be done upon the Sea A Pardon of all Felonies does not extend to this offence but the same ought especially to be named Though there be a forfeiture of Lands and Goods yet there is no corruption of Blood There can be no Accessory of this offence tryed by virtue of this Statute but if there be an Accessory upon the Sea to a Pyracy he must be tryed by the Civil Law The Statute of 35 H. 8. cap. 2. taketh not away this Statute for Treasons done upon the Sea Clergy is not allowable to the party on the Statute 28 H. 8. vide 14. Jac. in B. R. Moore 756. placet 1044. Though a Port is Locus publicus uti pars Oceani yet it hath been resolved more then once that all Ports not only the Town but the Water is infra corpus Comitatus If a Pyrat enters into a Port or Haven of this Kingdom and a Merchant being at Anchor there the Pyrat assaults him and robs him this is not Pyracy because the same is not done super eltum Mare but this is a down-right robbery at the Common Law for that the Act is infra corpus Comitatus and was inquirable and punishable by the Common Law before the Statute of 28 H. 6. cap. 15. XXV So If such a Pyracy be made in a Creek or Port in such cases it has been conceived that Clergy is allowable upon the Stat. of 28 H. 8. but if it be done super altum Mare there no Clergy is allowable by the Pardon of all Felonies at the Common Law or by the Statute Law Felony super altum Mare is not pardoned for though the King may pardon this offence yet being no Felony in the eye of the Law of this Realm but only by the Civil Law the Pardon of all Felonies generally extends not to it for this is a special offence and ought especially to be mentioned XXVI A Man attainted by virtue of that Statute forfeits his Lands and Goods yet there works no corruption of Blood by virtue of that attainder nor can there be any Accessory of Pyracy by the Law of this Realm but if it falls out that there is an Accessory upon the Sea such Accessory may be punished by the Civil Law before the Lord Admiral but he cannot be punished by virtue of this Act because it extends not to Accessories nor makes the offence felony XXVII If one steals Goods in one County and brings them into another the Party may be indicted in either County but if one commits Pyracy at Sea and brings the Goods into a County in England yet he cannot be indicted upon that Statute for that the originall taking was not felony whereof the Common Law took conuzance XXVIII If a Man is taken on suspition of Pyracy and a Bill is preferred against him and the Jury find Ignoramus if the Court of Admiralty will not discharge him the Court of Kings Bench will grant a Habeas Corpus and if there be good cause discharge him or at least take Bayle for him But if the Court suspects that the Party is guilty perhaps they may remand him and therefore in all cases where the Admiralty legally have an original or a concurrent Jurisdiction the Courts above will be well informed before they will mdedle If a Man be in custody for Pyracy if any aids or assists him in his escape though that matter is an offence at Land yet the Admiralty having Jurisdiction to punish the principal may have likewise power to punish such an offender who is lookt upon quasi an Accessory to the Pyracy but to rescue a Prisonner from an Officer of theirs they may examine the cause but they cannot proceed criminally against the offender XXIX Antiently when any Merchants were robbed at Sea or spoiled of their Goods the King usually issued out Commissions under the Great-Seal of England to enenquire of such depradations and robberies and to punish the Parties and for fraudes in Contracts to give dammages to the Parties and proceed therein secundum Legem consuetudinem Angliae secundum Legem Mercatoriam Legem Maritimam all three Laws included in the Commissions One Marsh a Fisherman being at Sea was taken by Pyrats and all which he had after that the Pyrats took another Ship belonging to the Dane and the Pyrats having rifled the Ship and taken the best of the Goods of the Danes the Pyrat put aboard the Fisherman and so suffered him to depart who landing here went immediately to Dr. Talbot a Civilian and shewed him all this matter and desiring his advice who directed an Inventory to be
there is no Nation in the World more tender and jealous of their honour then the English so none more impatiently tollerate the diminution thereof Hence it was that in all Treaties before almost any thing other was assertained the Dominion of the Sea and stricking the Top-fail was alwaies first provided for In the Year 1653 after the Dutch had measured the length of their Swords with those of this Nation and being sensible of the odds and having by their four Embassadours most humbly besought Peace this very Duty of the Flagg was demanded by the 15th Article in these words That the Ships and Uessels of the said United Provinces as well Men of War as others he they in single Ships or in Fleets meeting at Sea with any of the Ships of this State of England or in their service and wearing the Flagg shall strike the Flagg and lower their Top-sail untill they be passed by and shall likewise submit themselves to be visited if thereto required and perform all other respects due to the said Common Wealth of England to whom the Dominion and Soveraignty of the British Seas belong This was so peremptorily demanded that without the solemn acknowledging of the Soveraignty over the British Seas there was no Peace to be had that as to the acknowledging of the Soveraignty and the Flag they were willing to continue the Antient Custom but that of Visiting was somewhat hard 't is true the latter Clause was by the Usurper waved for reasons standing with his private interest but the first was made absolute by the 13 Article between Him and that Republique and from thence it was transcribed to the 10 Article at White-Hall and afterwards into the 19 Article at Breda and from thence into the 6th Article made last at Westm. and that Clause of searching of each others Ships made reciprocate by the 5 Article made in the Marine Treaty at London but that extends not to Ships of War but only the Ships of Subjects X. By the British Seas in the Article about the Flagg are meant the four Seas and not the Channel only for in the 16 Article they did express what was meant by the British Seas That the Inhabitants and Subjects of the United Provinces map with their Ships and Uessels furnished as Merchant Men fréely use their Navigation sail pass and repass in the Seas of Great Britain and Ireland and the Isles within the same commonly called the British Seas without any wrong or injury to be offered them by the Ships or People of this Common-wealth but on the contrary shall be treated with all love and Friendly offices and may likewise with their Men of War not excéeding such a number as shall be agréed upon sail pass and repass through the said Seas to and from the Countries and Ports beyond them but in case the said States General shall have occasion to pass through the said Seas with a greater number of Men of War they shall give thrée Months notice of their intention to the Common-wealth and obtain their consent for the passing of such a Fléet for preventing of Iealousy and misunderstanding betwixt the States by means thereof The first part of this Article doth plainly set out the extent of the British Seas and that it is not the bare Channel alone that comprehends the same but the four Seas and the same is further explained in the Great Case of Constables where the Dominion of the Queen before the union as to the Seas did extend midway between England and Spain but entirely between England and France for the French never had any right or claim to the British Seas for in the Wars between Edward the First and Philip the Fair all Commerce on both sides being agreed to be free so that to all Merchants whatsoever there should be induciae which were called sufferantia Guerrae and Judges on both sides were appointed to take cognizance of all things done against these Truces and should exercise Judicium secundum Legem Mercatoriam formam sufferantiae it was contained in the first provision of that League that they should defend each others Rights against all others this afterwards occasioned the introducing that Judgement in the same Kings time before those Judges chosen by both the said Princes by the Proctors of the Prelates Nobility and High Admiral of England and all the Cities Towns and Subjects of England c. unto which were joyned the suffrages of the most Maritime Nations as Genoa Catalonia Spain Almain Zeland Holland Freisland Denmark and Norway and divers other Subjects of the Roman Empire against Reginer Grimbald then Admiral of France for that there being Wars between Philip King of France and Guy Earl of Flanders he had taken Merchants upon those Seas in their Voyage to Flanders and despoiled them of their Goods whereas the Kings of England and their Predecessors as they all joyntly do declare and affirm without all controversy beyond the memory of Man have had the Supream Government of the English Seas and the Islands thereof Praesâ—…ribendo scilicet Leges Statuta atque interdicta armorum naviumque alio ac Mercatoriis armamentis instructarum causationes exigendo tutelam praebendo ubicunque opus esset atque alio constituendo quaecunque fuerint necessaria ad pacem jus equitatem conservandam inter omnimodas vates tam exteras quam in Imperio Anglicano comprehensas quae per illud transierint supremam iisdem item fuisse atque esse tutelam merum mixtum Imperium in juredicendo secundam dictas Leges Statuta praescripta interdicta aliisque in rebus quae ad summum Imperium attine in locis adjudicatis By which memorable Record it apparently shewes that the Kings of England have hand istud regimen dominium exclusive of the King of France bordering upon the same Seas and of all other Kings and Princes whatsoever and it was there adjudged that Grimbalds Patent was an usurpation on the King of England's Dominion and he adjudged to make satisfaction or if he proved unable then the King his Master should and that after satisfaction he rendred to punishment And as to the second part of the Articles of giving notice it was but an Act of Common prudence their late unexpected visit which they then gave put the English to some surprise but they facing the Battavian soon made them know that they were as capable of beating them home as they were then daring in coming out and were not to be braved out of a Dominion and Right which their Ancestors had with so much glory acquired and asserted XI By the Article of the Offensive and Defensive League between France and the United Provinces it was agreed That if at any time the Dutch Fleet which were to scoure the French Coasts in the Mediterranean from Pyrats should at any time meet the French the Admiral of the Dutch was to strike his
digni sunt qui Navium detrimentum in aliquibus perficiunt notum esse cupimus quicunque aliquam ex Navibus per quampiam inertiam vel incuriam vell negligentiam corruperit tamen recuperabilis sit is Navis corruptelam vel fracturam ejusdem per solidam prius recuperet Regique deinde eaque pro ejusdem munitionis fractura sibimet pertenent rite persolvat Most certain it is that the Kings of England have in all Ages by their Writs and Patents commanded not only the Admiral but the Wardens of the Cinque Ports and others to arrest and provide Ships of War and other Vessels and impress and provide Masters of Ships Sea Men Mariners and all other necessary Tackle Arms and provisions for Ships for the defense of the Sea and the Realm against forreign Enemies or for transporting of Armies paying their freight if not bound there by tenure as well as to elect and provide all sorts of Souldiers Carpenters and others Officers to be assistants in their several Expeditions But Firshermen or Mariners pressed for the Service are not to be imploy'd as Souldiers but only as Mariners unless it be in casâ—…s of great necessity or bound thereunto by tenure Custom or Covenant And Water-Men that shall withdraw themselves in time of pressing shall suffer a fortnights imprisonment and be prohibited to row on the Thames V. The reason why the Admirals had such power given them was because they being sometimes called Capitanei and Gubernatores Flotarum they had their ordering and Governing of the Ships of War and the raising and fitting up such Ships for the Navies as they thought fit other times called Custodes Maritimarum partium their duty being to provide all Naval provisions as well to supply the Kings Navies occasions as to gratify another of the Kings Friends when distress should constrain them to touch in his Ports that his Subjects might receive the like retaliation again they were called Capitanei Nautarum Marinellorum as in reference for the deciding all differences amongst those in the Kings service and punishing of such as transgressed and as the place was great so the power was large especially in all things belonging to the Navy-Royall in which they had the Supream rule and Government in all things belonging to it He sate formerly in the Kings House and there kept his Court as the French Admirals do at this day at the Marble-Table in the Kings House at Paris It is lawful for every Man to addict and yield up himself to whom he pleaseth as appears both out of the Hebrew Law and Roman Law why then may not any people being at their own dispose give up themselves to their Prince or Soveraign so as to transcribe the right of commanding their aide and help as often as need shall require it is not here inquired what may be presumed in a doubtful case but what may be done in point of right most certain such a power may well be done and that grounded on great reason first if the Common-wealth should happen to be invaded by such a one as seeks not only the subversion of the Government but the destruction of the people and they can find no other way to preserve themselves but that the supream power should be vested with such such a Prerogative as to inforce or presse the Inhabitants to serve in Armes in the defence of the same and the contempt of which to punish or if they should be opprest with want and that supplies of provisions can no waies be had but by compelling another by force to exhibite the common offices of humanity to a Nation in whose Territories a famine rages that the Inhabitants should on such extraordinary occasions be compelled by force to serve in Armes And this Dominion may be obtained several waies either by a voluntary resignation to a Conqueror as they of Capua to the Romanes Our Land the Temples of our Gods all Divine and humane things we yield up into your hands O ye Conscript Fathers again Freedom may be granted to all by a Conqueror except Mariners which should in cases of necessity be excepted or that some Prince who will not suffer any Mariner to go out of his Dominions without subjecting themselves to such a reasonable command and the Majority of Nations on such grounds may abdicate from a part of them the entire Freedom of that member Nor are their examples of this kind wanting the Germans are every one Master of his owne house but are almost on every occasion subject to their Lords especially in their Goods The Irish Cosherers which were reprehendinations when the Chief Lord and his retinue came to his Tenants House and fed upon their provisions till they were spent all being solely at their devotion And as to the Sea the King of Britain may at this day restrain Merchants or Mariners to pass out of the Realm without licence and the various tenures that are introduced which is presumed were since the Conquest were no other but the will of the Conqueror for the right is not measured by the excellency of this or that form but by the will VII And though it hath been conceived by some that the King cannot presse Men to serve in his Wars giving their reason that of old he was to be served either by those that held by tenure those that covenanted by Indenture to provide Men or those who contracted with the Kings Officers for wages and entered into pay or those that were in Prison for the Kings debts but that only extended to those Wars that were by Land not one word in all those acts or Mr. Rolls that any waies mention the least of Mariners and yet what vast Fleets were in those daies but on the other hand it hath been alwaies accustomed to presse such sort of Men for the Naval Expeditions the antient records that mentions such Persons subject to presse by Law is that of 49 E. 3. commonly called The Inquisition of Queenborrough wherein it was expresly in charge amongst others to inquire of those Mariners that were pressed for the Kings Service and deserted the same So likewise by those other Articles translated by Roughton it is expresse in charge to the Jury to present those that being prest to serve brake the Kings Arrest in order to their punishment and in those daies it was esteem'd an high offence and the Oath which the Jury then took being impanelled was this This here see My Lord the Admiral that I Ionathan Nash shall well and truly enquire for our Lord the King and well and truly at this time then serve at this Court of th' Admiralty present at moch as I have acknowleche or may have by information of eny of my fellows of all mane Articles or circunstances that touchen the Court of the Admirate and Law of the Sea the which shall be grate to me at this time and I thereupon sworne or
charged and of all other that may renew in my minde and in shall for nothing lette that is for to say for franchise Lordship Kinreden aliance Freindship Love hatred Envye Enemitee for dred of lost of Goodnee for none other case that I shall soe doe the Kings Counseils my fellows mine owne will and truly hele what oute fraude or malengyn so God me help at the holydome and by this Book VIII And as the enquiry was strict so was the punishment very great Item qui fugiet a Domino vel Socio suo pro timiditate belli vel mortis in conductione Heretochii sui in expeditione navali vel terrestri perdat omne quod suum est suam ipsius vitam manus mittat Dominus ad terram quam ei antea dederat IX If such Persons shall so desert the service it hath been a question whether a private Person under the same obedience meeting with such a deserter might not put him to death it hath been conceived that he might and the Act is lawful and the party that slayes him hath a true right before God as impunity before Men But that is to be understood partly by the words and partly by the letter of the Law for if the Law gives indulgence to passion it takes away humane punishment and not the fault as in case a Husband kills an adulterous Wife or the adulterer in the act most certain it is a provocation in the highest nature and will justify the slayer But if the Law respect the danger of future evill by delay of punishment it is conceived to grant right and publique power to a private Man so that he is not then in the capacity of a private Man And upon that very reason Queen Elizabeth deny'd the constituting of a Constable for the Tryal of Sir Francis Drake who struck off the head of Doughty in partibus transmarinis X. Hence it is that every Man hath a licence given him to oppose force against plundering and pillaging Souldiers and the next the subsequent Law about deserters saith Let all Men know they have a power given them against publique robbers and desertors that run from their Colours and all are Ministers of revenge for the quiet of all to this purpose is that of Tertullian Against traitors or publique enemies every Man is a Souldier and herein differs the right of killing of exiles and Outlaws or those whom they call Bannitoes from those kind of Laws because there proceeds a special Sentence the Judgement of Banishment or Outlawry being promulgated but here a generall Edict the fact being evident obtains the force of a Judgement or Sentence pronounced the Judgement of the latter must be according to the Civil Law which yet remains still in force as to the Tryal of such deserters by which impunity for such killing seems allow'd off at this day by that Law CHAP. VII Of Dominion established by Creaties of Alliance equal I. Of Treaties by interview of Princes and where generally held II. Of Princes equal the honour pay'd by him in possession to him that comes to the Treaty III. Of Treaties by Princes unequal IV. Princes where oblidged to treat personally and where not V. Deputies their demeanor considered generally at Treaties VI Of the nature of Treaties generally and their ends and where they determine by the death or dispossession of a Prince and where not VII Of Treaties in reference to matters particular and of the nature of Leagues offensive and to what end VIII Of the causes ordinary procuring such Leagues IX Of Leagues tending to the procuring of general Peace and Warranty X. Of Leagues defensive and of their end together with considerations on the Persons with whom they are made XI Of accidents not provided for in the League how far in honour to be comply'd with XII Of Contribution the difficulty in regulating the same to the satisfaction of the parties interessed XIII Of Leagues concluded by Deputies and of the Ratifying the same XIV Of the causes extraordinary that tend to the breach of Leagues XV. Of the causes ordinary that give occasion for rupture of the same and from whence they proceed XVI Of the obligations on Confederates as in reference to mutual succours XVII Of Aide granted to particulars and common Allies when invaded by another Ally and of protection granted when a people are oppressed whether aide to such may stand with the League XVIII Whether the Oath taken for the performance of such a League is personal or binds the Successor and the general rule in construing of the same XIX Of Leagues made with Princes though driven out of their Country when the same are good I. TReaties are acted either by the interview of Princes or by Persons sufficiently Commissionate for that purpose Those that are by interview have been often disapproved though often practised but that depends rather of the Estate of affairs and the conformity and diversity of honours and manner of living of the Princes and their People then of the interview that of Lewis the 11th with Duke Charles of Burgundy and with the same King with Edward the 4th of England past fairly and in all such Treaties they govern themselves as in reference to their supplies according to the confidence which they repose in each other Places Neuter belonging to some Common Friend or or some Frontiere or Islands are generally appointed for the same together with what numbers or forces they are to be accompanied II. But if of two Princes the one goes home unto the other he is bound to do him the honour of his House And if the Prince be inferiour unto him he commonly snds forth some of Principal Officers of his Court to receive him but if he be his equal in Quality as being both Kings although there be some debate betwixt him for precedence if he comes first to the Place where the Treaty is to be made he must go in person and not by proxy In the interview that was between Lewis the 12th and Ferdinand of Arragon at Savona which then belonged unto the French King Lewis the 12th at the approach of Ferdinands Gally before he could land entered into it accompanied only with his Guard to testify his confidence and thereby to assure King Ferdinand of that which he had promised he should find in him and at their going to Land King Lewis left the Right hand to Ferdinand who lodged in the Castle as the most Honourable place and himself went to the Bishoprick III. By the Laws of Treaties when two Princes unequal in Quality partly the inferior is to come first to the place of congress there to attend the Greater IV. Ambassadors having received Orders to treat the Prince to whom such are sent are not by the Laws of Treaties bound to treat personally but only to depute some of his Councel for that effect the reason is for that the dignity of a Prince
Oath as their firmament though that is not so for the most part of the efficacy of such Leagues rests in the promise it self to which for Religion sake the Oath is added Hence it is that Promises made to a Free-People are in their nature real because the subject is a permanent matter although the State or Republique be changed into a Monarchy yet the League remains for that the body i. e. the power is still the same though the Head be changed And the Person is incerted into the agreement not that the agreement may be personal but to shew with whom it is made for if it be incerted into the League that it shall be perpetual or that it is made for the good of the Kingdom or with the Person and his Successors or for a time limited the same does most apparently demonstrate the thing to be real However in all Leagues which tend to Peace though there may remain somewhat whereby words of ambiguity may arise yet the most pious way of interpreting hath been to account the same rather real then Personal for all Leagues made for Peace or Commerce admit of a favorable construction Leagues defensive have more of favour offensive of burthen XVIII Leagues made with Princes although they happen afterwards to be driven out of their Kingdoms by their Subjects yet the League remains firm and good for the Right of the Kingdom remains with such an unfortunate Prince notwithstanding he hath lost his Kingdom on the other hand Leagues made with the Invader cannot be good for his cause being unjust is odious but if the people will make him King de facto and investe him the question is then out of all controversy for then he is become a King regnant and by the Laws of England if treason by committed against his Person and after he is beaten out and the King de Jure comes to his Crown the King de Jure may punish those Traytours with death The Earl of Warwick having raised an Army in France and Flanders invaded England and within five or six daies after his landing King Edwards Forces betraying him the Earl became Master of the Realm the King flying for protection to his Kinsman the Duke of Burgundy he kindly in his misfortunes entertained him yet while he was in this banished estate the Duke of Burgundy renewed the League with the English it being agreed that notwithstanding King Edwards misfortune the League remained firm and unviolable between the Duke Charles of Burgundy and the King and Realm of England So that for Edward they should name Henry who was newly taken out of the Tower by the Earl of Warwick at his chacing out of King Edward now the true reason that Leagues remain and are firm notwithstanding such a change is because there goes along with them a tacite condition viz. of holding their possessions and therefore the World wondred not that His late Sacred Majesty having sworn a League with the King of Spain expresly as he was King of Portugal did notwithstanding receive two Embassadors from the then new King of Portugal and that without being judged either in England or Spain to have broken his former Oath and League The Duke of Guise having formed the League against Henry the Third which was that in regard the King was so cold in the Profession of the Romish Faith that it was in danger to be extinguisht by the increase which he permitted of the Reformed Religion especially seeing Henry the Fourth then King of Navar was of that Religion and was to succeed to the Crown wherefore by the Mediation of Philip the Second of Spain the Pope qualified the Duke of Guise Head of that Catholique League and which in point of Government was to set him above the King avowed him Protector of the Catholique Faith in the Kingdom of France When Henry the Fourth succeeded the Crown then this League for security of Religion was most violent and the Spaniard without hoped by nourishing thus the division within to carry all for himself at last To avoid which gin and to answer all the King chang'd his Religion and negotiated by d'Ossat to be received by the Pope as a dutyful Son of the Church of Rome demanding absolution for what was past and making large promisses of due obedience for the time to come the King of Spains interest was that he should not be received and thereupon he endeavoured to perswade the Pope that King Henry did but dissemble with him and that under this disguise he would easiest ruine the Romish Religion notwithstanding this the Cardinal obtained his Reception Absolution and Benidiction through the many promises and presents which he made to His Holyness whereupon the Spaniards designes were in a moment all blown over from France but fell heavily upon the United Provinces which were sorely opprest for that they apprehended the loss and ruine of their Countrey and thereupon they implored assistance from King Henry who received their Ambassadours very gratiously and gave them assurance of relief The King of Spain who wanted no good intelligence in the Court of France immediately remonstrates to the Pope that his former inclinations concerning Henry's dissimulations did now appear in the face of all the World and that seeing His Holyness had been so credulous he knew not now whether they should be able to save the Catholique Faith from being subjected to the Reformed Religion or no for whereas the Hollanders had revolted from him only because he resolved to use the true means for the establishment of the Romish Faith among them and that now he was in a fair way of reducing them which conduced so much by his Holiness his opinion to the establishment of the Romish Faith Henry had taken their party against him in that work and that at Paris he had received their Ambassadors to that purpose although he knew they were his lawful Subjects c. This startled the Pope not a little who charged d'Ossat for having betrayed him and put the Church in danger this argument was as subtil on the Spaniards side as changing Religion was on King Henry's and therefore the Cardinal was not a little perplext how to answer it to the advantage of his Master as also coherently to the considerations of his former reception into the Church But at last he replyed That His Holyness needed not wonder how in reason of State those different Religions might joyn together for political ends without hazard of altering Religion Thus David sought protection of the Philistians and Abraham redeemed the sinful Sodomites That he took it to be upon the same ground that His Holyness himself not long before received a Persian Ambassador who was so far from being an Heretick that he never pretended to the Name of Christian that it was a plausible argument which the King of Spain used in complaining of Henry's receiving and avowing their Ambassador especially knowing
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.
faith given and contrary to the Laws of Hospitality to slaughter or deliver up his own guest V. What ever the opinion of those Writers have been the practise of latter Ages have seemed to incline otherwise Queen Elizabeth demanded Morgan and others of her Subjects fled into France that had committed Treason against her the answer of the French King was Si quid in Gallia machinarentur Regem ex jure in illos animadversurum sin in Anglia quid machinati fuerint Regem non posse de eisdem cognoscere ex jure agere omnia Regna profugis esse libera Regum interesse ut sui quisque Regni libertates tueatur imo Elizabetham non ita pridem in suum Regnum Mountgumerium Principem Condaeum alios e Gente Gallica admisisse c. and they were never delivered up but the like was not returned by the King of Scotland for he promised that he would transmit Fernihurst and the Chancellor too if they were convicted by a fair Tryal the Cry of the late ROYAL MARTYR's Blood justly procured some of those Regicides to be delivered up by them of Holland VI. Most certain it is if War be threatned to a Nation or People if they deliver not up the offender though perhaps he is innocent and that such is the malice of his enemies that they know they will put him to death yet he may be deserted especialy if that Nation or Kingdom is inferior to the others but then the same ought not to be done rashly The Italian Foot that forsook the unfortunate Pompey before all was lost being assured of Quarter from the Victorious Caesar were condemned by most that reported the Story of that day Pope Alexander in that mortal Feude becween him and the Emperor Frederik who favoured Octavian the Antipope fled disguised to Venice the Duke and Senate being jealous that the Emperor would demand him sent an Ambassy to the Emperor to endeavour a Mediation and Peace which was no sooner offered but the Emperor break forth into a rage bidding them go home saying Tell your Prince and People that Frederik the Roman Emperor demands his Enemy who is come to them for succour whom if they send not presently bound hand and foot with a sure Guard he will proclaim them Enemies to him and the whole Empire and that there is neitheir Alliance or Law of Nations which shall be able to free them from revenge for such an injury to prosecute which he is resolved to overturn all Divine and Human Laws that he will suddenly bring his forces before their City and contrary to their expectation plant his Victorious Eagles on the Market-place of St. Marke This Message being faithfully delivered the Senate decreed Arms Arms and while they were preparing news was brought that Otho the Emperor's Son and General of the Caesarian Fleet was entered the Gulph with 7 5Gallyes the most valiant and religious Tebastiano Cyani resolved to meet him and having encountred them on the Coast of Istria defeated Otho and all his Naval forces taking 48 Gallyes Otho their Admiral and the rest either burnt or distroyed he returned in Triumph for Venice and not long after Frederik became converted that Heaven fights the Batailles for the Innocent and on his knees begg'd pardon of the Pope Lewis the 11th of France required by Ambassadors of Phillip Duke of Burgundy the delivery up of Sr. Oliver de la Marche who being a Burgundian had wrot as was conceiv'd somewhat against the claim of the French to several Territories upon a publique audience at Lisle they were answered by Duke Phillip That Oliver was Steward of his House a Burgundian by birth and in no respect Subject to the Crown of France notwithstanding if it could be proved that he had said or done any thing against the Kings Honour he would see him punished according as his faults should deserve But admitting that such an Innocent Person ought not to be delivered up whether he is bound to yield himself by some it is conceiv'd he ought not because the nature of Civil Societies which every one hath entered into for his own benefit doth not require it from which it follows that such Persons are not bound to that by right properly so called it doth not follow but in charity he seems bound to do it for there be many offices not of proper Justice but of love which are not only performed with praises but also cannot be omitted without blame and such indeed is the act of such a Persons voluntary yielding up himself preferring the lives of an Innocent multitude before his own Cicero for P. Sextus If this had happened to me sailing with my Friends in some Ship that Pyrats surrounding us should threaten to sinck us except they would deliver me I would rather have cast my self into the Sea to preserve the rest then to bring my Friends either to certain death or into great danger of their life The Request of the Noble Strafford is fresh in our memories VII But whether such an Innocent Person may be compelled to do that which perhaps he is bound to do may be a question Rich Men are bound by the precept of Mercy to give alms to the poor yet cannot be compelled to give It is one thing when the parts are compared among themselves another when Superiors are compared to their Subjects for an equal cannot compell his equal but unto that which is due by right strickly taken yet may a Superior compell his Inferior to things which vertue commands in a famine to bring out provisions they have stored up to yield him to death that deserts his Colours or turns coward to mulct those that wear excessive apparel And the like Phocion pointing to his dear Friend Nicocles said Things were come to that extreamity that if Alexander should demand him he should think he were to be delivered up It hath seem'd that such an Innocent Person might be deserted and compelled to do that which Charity requires but the late ROYAL MARTYR seem'd of another opinion when he came to dye in the case of the British Proto-martyr Strafford VIII Persons that have wrong'd or defrauded Kings of their Revenue especially in England upon Letters of Request to those Princes whether they have fled have been delivered up Some Florentine Merchants of the Society of the Striscobaldi being made Collectors and Receivers of the Kings Customs and Rents in England Wales Ireland and Gascoigne running away with those Moneys together with all their Estates and Goods for Rome the King sent his Letters of Request to the Pope desiring that they might be arrested their Persons and Goods and sent over to satisfy him the dammages he and his Subjects had sustained by them promising not to proceed against them to the loss of their limbs and lives Upon which Letters the Pope seized on their Goods and not long after the King Writ for
to extream necessity yet it follows not upon that that they who so conformed sinned or did that which was absolutely unlawfull for we well know that reason of State oft calls for Sacrifices where there is no fault to expiate Ostrocisme and Jealousy make away those who are known to deserve most but in strickt right which is the term of this question the just governour ought to look upon them as more unfortunate then faulty CHAP. XIV Of the Naval Military part I. The advantage that Princes have by a good Commander II. The love that naturally proceeds from the Mariners to those that are valiant and generous III. Princes in prudence ought not to listen too much to the complaint against Commanders IV. Of the faults generally considered in Soldiers and Mariners V. Of the punishments that generally wait on such offenders VI. Of Drunkeness Swearing and other such sort of impieties not to be suffered in Fleets VII Spies if lawfull to use them by the Laws of Nations but being deprehended are to suffer death and how they are to be dealt withall by the Laws of England VIII It is not lawfull for a Friend or Neuter to relieve an Enemy and Persons so offending how punisht IX Ships taken as prize the Ship papers and other matters concerning the same are to be preserved X. Of things taken and acquired in War how the right of them becomes vested in the Captors and how that is to be understood by the Law of Arms. XI To steal the Cables or other furniture of the King of England's Ships how punishable at this day XII Ships surrendred and voluntarily surrendred how to be dealt with and whether those that shall resist it if entered by force whether quarter may be refused XIII Ships of War generally ought not to be yielded but if entered or disabled whether they may not accept of a quarter standing with the Oath called Sacramentum Militare XIV Of obeying Orders the same ought to be punctually to be follow'd and if broken though the Act succeeds well whether the same subjects not the actor to punishment XV. of the obligation incumbent on Commanders and Souldiers to behave themselves valiantly and the right of slaying an Enemy where lawfull XVI Ships how oblidged by the Law of Arms for the assistance of one another and of the duty of those that have Fleets under their Convoy XVII An Enemy beaten ought to be pursued and how far it is lawfull to slay such flying with their lives in their hands by the Laws of Arms and how the reeking sword ought to be governed XVIII Persons exempted from the sword by the Laws of Nature Nations Civil and Canon and by the Municipall Laws of some Countries XIX Mutining how esteemed valued and punished at this day by the practise of Armies and by the Laws of England XX. Whether it be lawfull to decoy the Subjects Souldiers or Mariners of an Enemy to forsake his Prince or General and to bring over his Men Ships or Arms and where by Law they may be received and how such deserters may be punished by the Laws of Nations and of England XXI Of Seducers Message Carriers and Decoyers of Souldiers how to be handled by the Law of Arm. XXII Of those that shall disobey or strike their superiour Officers how punishable XXIII Of mutening and those that shall act in the same how punished though they have a just cause of complaint XXIV Of the care incumbent on Commanders and Masters of the Great Ships as in reference to their safety and the punishment of wilfull burning and destroying them XXV Of the general offences at Sea how punished XXVI Court Martials how erected and what operation their Judgements have and upon whom XXVII Judges and Advocates Power as in reference to give an Oath and the Admiral 's power how limited to the punishing of offences XXVIII Of maimed Souldiers and Mariners and the provisions that the Law makes for them at this day XXIX Of Triumphs I. AN Excellent Generall is an evidence of the Fortune of a Prince and the Instrument that occasions the happiness of a Kingdom and therefore when GOD makes choise of a Person to repair the disorders of the World or the good of a particular State then is his care shewed in the furnishing him with necessary Principalls to undertake great matters the thoughts are put in his Soul by that eternall Commander to execute he troubles and confounds his Enemies and leads him as by the hand â—…o Victories and Triumphs And one of the greatest expedients whereof he serves himself for this purpose is to raise unto him excellent Men both in Courage and Conduct to whom he communicates his care and who help him to bear the weight of Affairs Alexander had never conquered Asia or made the Indies to tremble but for Ephestion Parmenio and Clytus Caesar gained many a Bataill by his Lievtenants and the fairest Empire of the World which ambition and evil of the times had divided into 3 parts was reduced under the Dominion of Augustus by the valour of Agrippa Justinian triumphed over Persia and destroyed the Vandalls in Affrica and the Goths in Italy by the aid of Bellisarus and Narcete And it is most certain that Noble Commanders are the Glory of their Princes and happiness of the People on the other hand base cowardly and treacherous Generals are the shame of the one and the dispair of the other II. Hence it is that Souldiers and Mariners draw their lines either of love even to the mouth of Canons with a good Generall or mutiny and hate to the main yard end against one that is bad for to obey them who are not their Soveraigns when they do them hurt when they insult and are cruell in cold blood and base cowardly or treacherous in Bataill is a sad necessity for them and a hard essay of patience yet must they be obeyed and the Souldiers and Mariners must not rebell or repine but submit till the Soveraign redresses the misfortunes III. Again Princes ought not to listen too much to the mutinous demands of the Crew or any others whose ambition watches their ruin whereby to conceive anger against this Commanders for it is easier to purge out the choler and discontent that is got under the hatches then to provide Commanders of Conduct Courage and Faithfulness to govern their Expeditions Bellisarius that most excellent Commander who had no other crime then his Reputation and was not culpable but that he was powerfull having conquered Persia subdued Africa humbled the Goths in Italy lead Kings in Triumph and made appear to Constantinople somewhat of Old Rome an Idea of the Antient Spendor of that proud Reipublique after all his Eminent Services this Great Person is abandoned to Envy a suspition ill grounded distroys the value of so many Services and a simple jealousy of State wipes them out of the memory of his Prince but he rests not there for the demeanor had
in his Chariot adorned and crowned with the Victorious Laurel the Senators with the best of the Romans meeting him his Souldiers especially those who by their valoor had purchast Coronets Chains and other Ensigns of reward for their conduct and courage following him but what alas could these to the more sober represent any other but horror since the centers from whence the lines were drawn could afford nothing but death slaughter and desolation on those who had the Souls and Faces of Men and if it were possible that that Blood which by their Commissions was drawn from the sides of Mankind and for which they made those Triumphs could have been brought to Rome the same was capable of making of a Source great as their Tiber but Policy had need of all its Stratagems to confound the Judgement of a Souldier by excessive Praises Recompenses and Triumphs that so the opinion of wounds and wooden-legs might raise in him a greater esteem of himself then if he had an entire body To allure others something also must be found out handsomly to cover wounds and affrightments of death and without this Caesar in his Triumph with all his Garlands and Musick would look but like a victime but what sorrow of heart is it to see passionate Man a ray of Divinity and the joy of Angels scourged thus with his own Scorpions and so fondly to give himself alarums in the midst of his innocent contentments as they of Holland but yesterday in the midst of their traffique and recreations did by the denying His Sacred Majesty his Right even that right the which his Ancestors had with so much glory acquired pul on their heads a War which that mighty Reâ—…publique by their greatest industry and wisedom hath not been yet able to quell the colerickness of War whereby the lustfull heat of so many hearts is redoubled stirs up the lees of Kingdoms and States as a tempest doth weeds and slimy seedment from the bottom to the top of the Sea which afterwards driven to the shoare together with its foam there coverts Pearls and pretious Stones and though the Canon seems mad by its continual firing and the Sword reeking hot by its dayly slaughters yet no good Man doubts but they even they will wheather out those storms in the midst of those mercyless instruments find an inculpatatutela who love justice exercise charity and put their trust in the Great Governour of all things CHAP. XV. Of Salutations by Ships of War and Merchant Men. I. Of salutation how esteem'd by some in this later age II. Of the same pay'd in all ages as an undoubted marke of Soveraignty of this Empire III. Of those Seas where this right is to be pay'd to the King of England's Flag IV. In what manner the King of England holds this Right and by whom to be pay'd V. Of those that shall neglect or refuse to do the same how punisht and dealt withall VI. Where his Majesty of Great Britain's Ships are to strike their Flagg and where not VII Of the saluting of Ports Castles Forts how the same is to be done and on what terms VIII Of Ships of War their saluting their Admiral and Commanders and Chief IX Of Ambassadors Dukes Noblemen and other Persons of quality how to be saluted coming aboard and landing X. The Admirals of any forraign Nation if met withall how to be saluted and answered XI Of the Men of War or Ships of Trade of any foraign Nation saluting his Majestie 's Ship of war how to be answered XII Of the saluting of his Majestie 's own Forts and Castles and when the salute cease XIII Of the objection that seems to be made against the necessity of such Salutations XIV Why Kingdoms and States attributes the effects not the cause of Rights to prescription XVI That Kingdoms and Reipubliques ought not to be disordered for the defect of Right in presumption and the objection in the 13 § answer'd XVII The inconveniency of war and the justifique causes of the same XVIII Of the causes not justifiable in war XIX Of Moderation and the utility of Faith and Peace I. AS reforming Powers in all Ages made it their chiefest work to take down the great Colossues and whatever else might be ombragious in the excrescences of Civile Pompe so we had some in this Age who by a new art of levelling thought nothing could be rightly mended and they planted unless the whole piece ravelled out to the very end and that all intermediate greatness between Kings and them should be crumbled even to the dust where all lying level together as in the first Chaos spades ought even to be put into the hands of those who were heretofore adorned with Scepters all outward tokens of honour and esteem which even from the first institution of Society seemed by an uninterrupted stream to be continued down to posterity even amongst the most barbarous Nations was by them totally deny'd the Hand the Hat the Knee being no other but outward signs of an inward respect being esteemed equal with Idolatry but that unhappy brood to whom whatsoever was crooked seemed streight and what was dark to them appears light are now not to be accounted Men with whom the question may admit of a debate whether Salutation is innocent necessary and praise-worthy since nothing of reason can be found in the foundation of their Religion Honesty or Conscience Therefore this Discourse is directed to Men II. First it is evident by what hath been said that the British Seas before the Roman Conquest ever belonged to the Isle of Great Britain they alwaies claiming and enjoying the sole Dominion and Soveraignty of the same which afterwards accrued to the Romans by Conquest and from them translated with its Empire to the succeeding Saxon Danish and Norman Successors and in all the Reigns of those Princes there was alwaies some markes of Soveraignty pay'd wherein the right of the same was evinc't and acknowledged III. Now those Seas which this Salutation or Duty of the Flagg are to be pay'd are the four circumjacent Seas in which all Vessels whatsoever are to pay that Duty according to the Custom of the same and the Ordinance of King John How far this Right is payable appears in the fourth Article in the Peace made lately between His Majesty and the States General of the United Provinces in these words That whatever Ships or Uessels belonging to the said United Provinces whether Uessels of War or other or whether single or in Flâ—…ts shall mâ—…t in any of the Seas from Cape Finisterre to the middle point of the Land Van Staten in Norway with any Ships or Uessels belonging to his Majesty of Great Britain whether those Ships be single or in great number if they carry his Majesty of Great Britain ' s Flagg or Jack the aforesaid Dutch Uessels or Ships shall strike their Flagg and lower their Top-sail in the same manner and with as much respect as hath at any
time or in any place been formerly practised towards any Ships of his Majesty of Great Britain or his Predecessors by any Ships of the States General or their Predecessors IV. Now his Majesty holds not this Salutation or Respect by virtue of the League or of the Article but as the same is a Right inherent to the Empire of Great Britain and therefore in the first part of the Article it is declared in these words That the aforesaid States General of the Unithed Provinees in due acknowledoment on their part of the King of Great Britain ' s RIGHT to have his Flagg respected in the Seas hereafter mentioned shall and do declare and agree Now this Right extends and subjects all Nations whatsoever that shall pass through those Seas and between those places meeting with any of his Majesty's Ships of War bearing his Flagg Jack or Cognizance of Service to strike their Top-sail and take in their Flagg in acknowledgement of His Majesty's Soveraignty in those Seas and if any shall refuse to do it oroffer to resist they may be compelled vis manu forti for his Majesty's Honour is by no means to receive the least diminition V. If therefore any of his Majesty's Subjects should be so negligent or forgetful to pay that obeissance when it may be done without losse of the Voyage they are to be seized on and brought to the Flagg to answer the contempt or else the Commander may remit the Name of the Ship Commander or Master as also the place from whence and the Port to which she shall be bound to the Admiral however before she is dismist she must pay the charge of the shot that her negligence or forgetfulness occasioned and afterwards may be indicted for the same and severely punished VI. In His Majesty's Seas none of his Ships of War are to strike to any and that in no other part no Ship of His Majesty is to strike her Flagg or Top-sail to any Forraigner unless such forraign Ship shall have first struck or at the same time have strike her Flagg or Top-sail to his Majesty's Ships VII But if any of the King of Englands Ships of War shall enter into the Harbour of any Forraign Prince or Sate or into the râ—…ade within shot of Canon of some Fort or Castle yet such respect must be pay'd as is usually there expected and then the Commander is to send a shore to inform himself what return they will make to this Salute and that if he hath received good assurance that his Majesty's Ships shall be answer'd Gun for Gun the Port is to be saluted as is usuall but without assurance of being answered by an equal number of Guns the Port is not to be saluted And yet in that very respect before the Port is to be saluted the Captain ought to inform himself how Flaggs of the same quality with that he carrys of other Princes have been saluted there the which is peremptorily to be insisted on to be saluted with as great respect and advantage as any Flagg of the same quality with the Captains of any other Prince hath been saluted in that Place VIII A Captain of a Ship of the second rate being neither Admirall Vice-Admiral nor Reer-Admiral at his first coming and saluting his Admiral or Commander in chief is to give 11 Pieces his Vice-Admiral nine and his Reer-Admiral seven and the other proportionably less by two according to their Rancks but the Commander or Captain of a Ship is not to salute his Admiral or Commander in chief after he hath done it once except he hath been absent from the Flagg two Months XI When a Ship of the second rate shall carry any Ambassador Duke or Nobleman at his coming aboard he is to give eleven Pieces and at his landing fifteen and when he shall carry a Knight Lady or Gentleman of Quality at their coming aboard he is to give seven and at the landing eleven and the other Ships are to give less by two according to their Rancks and number of Ordinance X. When an Admiral of any forraign Nation is met with he is to be answered with the like number by all the Ships he shall salute if a Vice-Admiral the Admiral is to answer him with twelve less but the Vice-Admiral and Reer-Admiral and as many of the rest as he shall salute shall give him the like number if a Reer-Admiral then the Admiral and Vice-Admiral to answer him with two less but if he shall salute the Reer-Admiral or any other they are to answer him in the like number XI When a Man of War or Merchant-Man of another Nation or of our own salute any of the King's Ships he is to be answer'd by two less XII When any of the Captains of his Majesty's Ships shall have occasion to salute any of the King's Castles he is to give two Guns less then they are directed to give upon saluting their Admiral or Commander in chief as aforesaid But this extends only in time of Peace for if War is begun no Guns ought to be fired in Salutes unless to the Ships or Castles of some forraign Prince or State in Amity XIII Those duties or obligations being laid on Commanders they consist of two parts the one is that antient prescription which the Crown of England claims by virtue of the Soveraignty of that Empire the other is but that respect which is pay'd as visible marks of Honour and Esteem either to Kingdoms or Persons publique or private to whom these several Commands are to be observed and yet in these which are both innocent and harmless of themselves yet we wont not those who being empty of all that may be called good want not malice to start up words wherefore should the lives of Men even Christian Men be exposed to death and slaughter for shaddows as they call them the right of salutation or Complement being no other in their opinion XIV Admitting therefore that the evidence of original Compacts and Rights stand at such remote distances from us that they are hardly discernable and that the principal of Civil things as well as Natural is sought for in a Chaos or confusion so that the evidence of antient facts vestigia nulla retrorsum there being no infallible markes of their preexistence one step doth so confound and obliterate another and that time it self is but an imagination of our own and intentional not a reall measure for actions which pass away concomitantly with that measure of time in which they were done for which reason we talk of antient things but as blind Men do of Colours Notwithstanding prescription is supposed by most to hold out such an evidence that as they say it ought to silence all Counterpleas in all Tribunals and by the present allowance which is indulged to it it either proves a good or cleans a vitiated title and this Prerogative in the Civil constitution of the World hath this Power in the Civil constitution
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
been denyed them notwithstanding that the Judge of the Admiralty is Judge of the Court of Assurance XIX By the making of an Office Pollicy according to the Statute these advantages will follow 1. If the Pollicy be lost if the same be entred with the Register of the Office the Entry is effectual to answer the matter both at the Common Law as well as in the same Court but a private Pollicy lost is like a Deed burnt unless that there be very strong evidence as a Copy and the like it will be of little value So that then there will remain nothing but an Equitable relief in Chancery for the satisfaction the party 2. If a man Freights out a Ship from London to Cales and assures here he may write to his Correspondent to make an assurance there of the same if the matter comes before Commissioners they may examine the Ensured upon Oath and determine therein according to Law and the Custome of Merchants But at the Common Law the same cannot be but relief must be had in that point according to Equity in Chancery 3. The same is a Court of Equity as well as a Court of Law 4. They may decree against 20 Assurors at one time but at Law they must be sued distinctly but they cannot compel the Defendants to put in Bayl. 5. They may proceed out of Term as well as in Term and if the matter will bear it they may finish a Cause in a fortnights time 6. The Judgments there given are generally upon mature deliberation and by persons well skilled in Maritime affairs and if their Sentence is thought to be unreasonable the Lord Chancellor or Lord Keeper may on Appeal determine the same CHAP. VIII Of Prisage and Butlerage I. What is Prisage where taken and of what II. Merchant Strangers exempted from the same III. When due and the exemption of the Citizens of London from the same IV. What Citizens are capable and where not V. A Forraigner imports and makes a Citizen Executor and dyes whether he shall have the benefit of the Immunity VI. Where a Forraigner sells to a Citizen before but he broken the Vendee shall be chargeable VII Where a Grant to discharge a particular Ship shall be good and where a Grant to particular persons shall be otherwise VIII Of Butlerage what and whom are exempted IX Where the King becomes entituled to those duties X. A Grant to be free of all Customes Impositions c. extends not to Prisage and Butlerage XI Cinque-Ports exempted from Prisage I. PRisage is a certain taking or purveyance for wine to the Kings use The same is an ancient Duty which the Kings of England have time out of mind had and received the manner hath been by taking of every Ship or Vessel that should come into this Realm if ten Tun to have for Prisage one Tun and if it contain 20 Tun or more to have two Tun viz. unum ante doleum and the other deorsum paying 20 s. for each Tun And this ancient Immunity they have enjoyed as a Flower of the Crown and by some has been conceived not grantable away without Act of Parliament But yet in 6 E. 3. fo 3. Case 15. mentions the same to be grantable over II. King Edward the First having laid some Impositions on the Merchants which in Anno 25. of his Reign being taken away with promise that neither he nor his Successors should do any such thing without Assent of Parliament In 31. of his Reign they granted him an encrease of Customes in lieu of which he granted them many Immunities as Release of Prisage c. III. Prisage is not due till the unlading or that which is commonly called breaking of Bulk for the words are de qualibet navi important vini disonerant inde King Edward the Third by his Charter dated 6. Martij Anno Regni primi granted his Royal Charter of discharge to the Major Commonalty and Citizens of London in haec verba viz. Quod de vinis Civium nulla prisa fiat sed perpetue inde essent quieti c. which was afterwards allowed in the Exchequer IV. It is not every Citizen that is capable of this Priviledge but onely those that are Resiant within the City And so it was Rul'd in the case of one Knowls who being a Citizen and free Grocer of London removed his Houshold cum pannis and did dwell at Boistol but yet kept his Shop in London and a Ship of his arriving with Wines at London and being unladen the Prisage was demanded he claymed the benefit of discharge It was adjudged he was not capable of the same for he that will claym the benefit of this discharge ought to be Civis incola Comorans 24 H. 6. A Private Act of Parliament Complaint was made That the Lord Major of London would make Strangers Citizens It was there declared That this benefit to be discharged from payment of Prisage did not extend to such Citizens as were dotati made free but unto those Citizens onely which are comorant incolant and resiant within the City V. If a Forreigner brings a Ship laden with Wines into the Port of London and then makes a Citizen his Executor and dyes he shall not have the benefit of this Immunity from payment of Prisage for these Wines for that they are not bona Civium VI. If a Forreigner arrives with a Ship laden with Wines at a Port with an intent to unlade and before the Goods are entred or Bulk is broken he sells them to a Citizen Prisage shall be paid notwithstanding for it was never the Kings grant to discharge a Citizen in such a manner VII If the King does discharge such a Ship of J. S. being at Sea particularly naming the same from the payment of Prisage and he dyes before the Ship arrives no duty can be demanded But it has been held If a particular person has a grant to him to be discharged of his Goods and he dyes before the arrival the duty shall be paid A Quo Warranto was brought against three Archbishops of York to shew cause why they demanded to have Prisage for Wines brought into the Port of Hull The two first pleaded to have onely the first taste and a pre-emption after Prisage paid But the third pleaded a Charter of 15 E. 2. by force of which he claimed the same and Rul'd not good For though the Charter might be good yet it was held in that case a disclaymer by the Predecessor should bind the Successor And at this day the Duke of Ormond in Ireland hath an Inheritance in the Prisage of Wines by the Kings Charter VIII Butlerage is a Custome due from Merchant-Strangers of 2s upon every Tun of Wine brought into this Realm by them King John granted to the Merchants of Aquitaine Trading for Wines thence into England divers Liberties amongst others Libertatibus concessis Mercatoribus vinetarijs
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
such a Stock or Portion may be purchas'd that is the advantage or benefit arising by the improvement of the same As for Instance The East-India Company hath a Stock lodged in their hands by divers persons which they in the most prudent'st manner as they see fit imploy to those places as they judge most proper if a return is made the advantage of that is distributed â—…o each person that is any way entitled to that Stock which advantage is called a Divident and perhaps may afford some years 20 or 30 per Cent. But on the other hand if that that proportion of the Stock which goes out happens to miscarry the abatement is proportionable and so the Stock may be lessened unless that they will stay the Dividents to keep the Stock the which they may do For it is a Trust reposed of so many mens Moneys in their hands to yield them such advantage as they shall upon a just account set out So that if a man hath a 1000 l. Stock he cannot take the same out of the Great Stock whereby to lessen the same but he may transfer that usu-fruite by that Customary way which they have to any other person for a valuable consideration infinitum Such a Stock of 100 l. in the East-India Company in time of Warr might have been purchas'd for 80 l. Nett but now in time of Peace scarce got under 170 or 180 l. the Dividents running high CHAP. XII Of Impositions called Great Customes Petty Customes and Subsidies I. Impositions whether they may be commanded without the Three Estates and of Magna Charta touching the same II. Of Impositions made voluntary by consent of Merchants and of the adnull of the same III. Of the Confirmation of the Great Charter for free Traffique and of the Settlement now made on his Majesty of the same IV. Of the Immunities formerly of the Hansiatique Towns here in England and when determined V. Of the Antiquity of Customers or Publicans as well in former Ages as at this present time in most Nations VI. Of the Imposition called Magna Custuma VII Of that which is called Parva Custuma payable by strangers and the Act called commonly Carta Mercatoria VIII Of Subsidy and of what and the Rates how set IX Of Subsidy by Strangers on wines X. Of Goods not rated how to pay XI Of the Subsidy-Duty for Cloaths I. THat Impositions neither in the time of Warr or other the greatest necessity or occasion that may be much less in the time of Peace neither upon Forraign nor Inland Commodities of what nature soever be they never so superfluous or unnecessary neither upon Merchants Strangers nor Denizens may be laid by the King 's absolute Power without Assent of Parliament be it never so short a time By the Statute of Magna Charta Cap. 30. the words are All Merchants if they were not openly prohibited before shall have their safe and sure Conducts to enter and depart to go and tarry in the Realm as well by Land as by Water to buy and sell without any Evil Tolls by the Old and Rightful Customes except in the time of Warr and if they be of the Land making Warr against Us and be found in Our Realm at the beginning of the Warr they shall be attached without harm of Body or Goods untill it be known to Us or Our Justices how our Merchants be intreated there in the Land making Warr against Us. The Statute of which this is a branch is the most ancient'st Statute Law we have won and sealed with the Blood of our Ancestors and so reverenced in former times that it hath been 29 times solemnly confirmed in Parliament II. Impositions were in some sort done Consensu Mercatorium by Edward the First and Edward the Third And again in Henry the Eighth of which the House of Burgundy complained as against the Treaty of Entercourse King Henry the Third finding that such a Modus of Imposition tended to the destruction of Trade and apparent overthrow of Commerce and was against the Great Charter made Proclamation Anno 16. in all Ports of England That all Merchants might come faciendo rectas debitas consuetudines nec sibi timeant de malis tollis for that such Impositions had no better name then Maletolts The like was declared and done by Edward the First in the 25th year of his Reign and Edward the Second in the 11th and 12th years of his Reign III. In 2 Ed. 3. the Great Charter for Free Traffique was Confirmed and about some 3. years after there were Commissions granted for the raising of a new kind of Tallage but the people complained whereupon the Commissions were repealed and he promised never to assess any but as in the time of his Ancestors But this Prerogative Power of Imposing inward and outward upon Commodities over and above the ancient Custome of Subsidy without a free consent in Parliament is now ceast and settled And that Question which for many Ages had been handled by the most Learned'st of their times in the asserting and in the denying will never more be remembred Which being managed for some time was afterward farmed out The like having been done by former Kings as did Edward the Third with the New and Old Customes of London for 1000 Marks monthly to be paid unto the Wardrope Richard the Second Anno 20. Farmed out the Subsidy of Cloth in divers Counties So Edward the 4th Henry the 8th Queen Elizabeth and King James the same having been used in former Ages even in the best govern'd State Rome which let out Portions and Decim's to the Publicans IV. The Old Hanse Towng viz. Lubeck Collen Brunswick Dantzick and the rest had extraordinary Immunities granted unto them by our Third Henry for their great assistance and furnishing him in his Warrs and Naval Expeditions with so many Ships and as they pretended the King was not onely to pay them for the Service of their Ships but for the Vessels themselves in case they miscarried The King having concluded a Peace and they being on their return home for Germany the most considerable part of their Fleet miscarried by Storm and stress of weather for which according to Covenant they demanded reparation The good King in lieu of that which he wanted Money granted them divers Immunities and amongst others they were to pay but 1. per Cent. Custome which continued till Queen Mary's time and by the Advice of King Philip she enhanced the 1. to 20 per Cent The Hans not only complained but clamoured aloud for breach of their Ancient Priviledges confirmed unto them by long Prescription from 13 successive Kings of England and the which they pretended to have purchased with their Money King Philip undertook to accommodate the business but Queen Mary dying and he retiring nothing was effected Complaints being afterwards made to Queen Elizabeth she answer'd That as she would not innovate any thing so she
a restriction which perhaps in the end may destroy Society however this hath its quantum for though harmless Passage may be excepted in the first Institution of Dominion yet that is to be understood when leave is granted and though fear of the multitude which is to pass cannot take away that Prince his Right thorough whose Territories or Seas they go yet it follows as naturall that in the Institution of such liberty that Prince or People may provide and if they have any probable or any reasonable cause interdict their passage till security or Hostages are pledged for their peaceable passage nay without declaring their reason may interdict them absolutely any manner of passage if there be any other way to pass in safety And therefore at this day by the Laws of England the King may interdict any Nation or People whatsoever to pass through his Seas without leave first obtained to that purpose and may visit all Ships be they of War or of Trafick that shall occur or be in the same III. Nor is passage onely due to Persons but to Merchandize also for no man hath Right willfully to obstruct the way of Commerce to any Nation with any other that is remote because the permission of Trade is for the interest of humane Society and is not discommodious to any one and to that purpose Philo speaks On the Sea all Ships of burden safely pass according to that right of Commerce which is between all Nations arising from the desire of Natural Society while they supply one another mutually which the one wanteth and the other can spare for envy hath never invaded either the whole world or the greater parts thereof And Plutarch speaking thus of the Sea This Element hath made our life sociable and perfect that otherwise would be wild and without correspondence it supplyes our wants with mutual ayd and by exchange of things needful it procures fellowship and friendship And the wisdom of God is highly to be admired who hath not granted all things to every Land but hath distributed his gifts to several Countries that men having need of one another might maintain Society for their Common good therefore hath he endowed Man with knowledge and understanding to invent and build Ships to govern and guide them by those Lamps of Heaven and other Instruments of his Divine Wisdome enabling thereby the Merchant to convey to all what any place affords according to that of the Poet What Nature any Land denyed By Navigation is supplyed But as the Sea is free and open for Traders yet nevertheless the Passengers are subject to such Restrictions Laws and Ordinances as those Soveraign Princes shall make of force in those places where they have an accession of Property or Soveraignty IV. But admitting that such free Passage may be granted as above whether Tribute may be imposed by him that Rules the Land upon Merchandize passing by Land or by River or by part of the Sea which may be called an Accession of the Land that is the place thorough which they pass is as much under the absolute Jurisdiction of the Prince as the very Land it self Certainly whatsoever Burdens have no relation to the Merchandise no equity suffers the same to be imposed on the same neither can Poll-money put on the Inhabitants to sustain the Charge of the Commonwealth be exacted of Passengers V. Nevertheless if either to secure the Passengers Goods and Vessels from Pyrats and others or for the Erecting of Beacons Light-Houses and other Sea-Marks and such like there indeed some compensation may be laid upon the Commodities or Ships passing thorough so that the measure of the cause be not exceeded Or as my Lord Coke observes in the case of the Halage money it be reasonable for upon that depends the Justness of Tributes and Toll And upon those Reasons the Venetian in the Hadriatique the King of Denmark in the Baltique Sea does demand the same And the King of England may do the like in the Chambers of his Empire and that by his Prerogative for the same is not so much compulsory to any to pay but to them that will take benefit of such accommodation Strabo relates That the Corintbians even from the most ancient of times received Tribute of the Commodities which to avoid the compassing of Malea were carried by Land from Sea to Sea So the Romans received a price for the passage of the Rhine But this Right of imposing on Ships and Goods passing thorough some Territories is found cruel especially when they must pass thorough the Territories of a powerful and fierce People then it is heavy to the Merchant to compound for it 's often done on hard and grievous terms The End of the Second Book CHAP. I. Of Freedom Bondage Slavery Erile and Abjuration I. Of Freedom by the Law of Nature and of Bondage Slavery or Captivity introduced by the Law of Nations II. Of the Actions that subject Man to Bondage III. Of the Dominion over Slaves Bond-men and Captives IV. Of the Cause or Reason of such Dominion V. That this Right or Dominion was not a Law universal VI. Of Bondage or Slavery where discontinued by the Christians and Mahomitans VII Of a Servitade at this day standing with the Laws of a Christian Common-wealth VIII Of Manumission and Freedom by the Hebrew and Roman Law and by the Laws of England IX Of Disfranchising the several ways X. Of Abjuration and Exile and what operation it hath XI Of Freedom in Cities and Corporations in reference to Merchants Traders and Foreiners I. IN the primitive state of Nature no men were Servants yet it is not repugnant to natural Justice that by the Fact of man that is by Covenant or Transgression Servitude should come in therefore Servitude is brought in by the Laws of Nations II. Hence it is That those that will yield up their persons or promise Servitude are accounted Slaves so likewise all that are taken in Publick War and brought within the Guards of their Conquerors nor is transgression necessary but the Lot of all is equal after the War is begun even of those whose ill fortune subjected them to be deprehended within the Enemies Bounds nor are they Servants only themselves but all their Posterity for ever III. The Priviledges of this Right or Dominion are infinite since there is no suffering which may not be imposed on such nor work which may not every way be extorted from them So that even the Cruelty of Masters became almost unpunished till the Municipal Laws of Countreys set Bounds to their rigour and power Nor are the persons become theirs only that have the power of them but also all that they have for such unhappy persons can have nothing of their own Hence it was That that excellent Law in favour of such was introduced by the Romans called Legis Corneliae which was when a Captive intra presidia
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
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
tongue or Nation whatsoever nor matters it of what sufficiency the Jurors are for the form of the venire facias shall not be altered but the clause of quorum quolibet habeat 4. c. shall be in If both parties are Aliens then the Inquest shall be all English for though the English may be supposed to favour themselves more then Strangers yet when both Parties are Aliens it will be presumed they will favour both alike without any difference IV. If an Alien is party who slips his opportunity and suffers a Trial by all English the same is not a Verdict Erroneous for if he will be so negligent as to slip that advantage which the Law gives him it is his fault for the Alien if he will have the benefit of that Law he must then pray a venire facias per meditatem Linguae at the time of the awarding the venire facias But if a neglect of that opportunity happens yet if he prays it after the awarding a general venire facias the same may be retreeved so as it be before the venire be returned and filed for then he may have a venire facias de novo or otherwise he cannot nor can he afterwards challenge the Array for this cause if it falls out the Juries are all Denizens though Sandford seems to be of a contrary opinion for the Alien must pray it at his peril V. If there be a general venire facias the Defendant cannot pray a decem Tales c. per medietatem Linguae upon this because the Tales ought to pursue the venire facias But if the venire facias be per medietatem Linguae the Tales ought to be per medietatem Linguae as if five Aliens and five Denizens appear on the principal Jury the Plaintif may have a Tales per medietatem but if the Tales be general de Circumstantibus it hath been held good enough for there being no exception taken by the Defendant upon the awarding thereof it shall be intended well awarded If an Alien that lives here under the protection of the King of England and Amity being between both Kings commits Treason he shall by force of the Act of 1. and 2. Ph. and Mary be tryed according to the due course of the Common Law and shall not in that case be tryed per medietatem Linguae But in case of Petit Treason Murder Fellony c. if he prays his Trial per medietatem Linguae the Court ought to grant it Yet if an Information be exhibited against an Alien the Trial is not per medietatem but according to the Common-Law If an Alien in League brings an action if there be cause the Defendant may plead in abatement but if it be an Alien Enemy he may conclude in the action In an action for words the Defendant pleaded not guilty and said he was an Alien born and prayed Trial per medietatem Linguae which was granted and at the nisi prius in London but six English-men and five Aliens appeared and the Plaintif prayed a Tales de Circumstantibus per medietatem Linguae and it was granted so there wanted one Alien and the Record was Ideo Alius Aliegena de Circumstantibus per vic' London ad requisitionem infra nominati Julii Caesaris per mandato Justiciarum de novo apposito cujus nomen panelo praedict ' affilatur secundum formam Statuti in hujusmodi casu nuper editi provise qui quidem Jurato sic de novo appositus viz. Christianus Dethick Alienigena exactus venit ac in Juratam illam simul cum aliis Juratoribus praedicta prius impanellatis Juratis Juratus fuit c. It was found for the Plaintiff and afterwards moved in Arrest of Judgment That no Tales was to be granted de Circumstantibus when the Trial is per medietatem Linguae by the Justices of Nisi prius by the Act of 35 H. 8. because in the Act it is spoken of Free-hold of Jurors and an Alien is not properly said of any Countrey or to have any Free-hold but it was adjudged because the Statute was made for speedy execution that it should be expounded favorably according to the intent and meaning of the Makers of the Act and though in this case the Tales was prayed by the Plaintiff where it ought to have been ad requisitionem defendentis yet that should be taken to be but a misprision and would be amended VI. If the Plaintiff or Defendant be Executor or Administrator though he be an Alien yet the Trial shall be by English because he sueth in Auter droit but if it be averred that the Testator or Intestate was an Alien then it shall be per medietatem Linguae Shely a French man who joyned with Stafford in the Rebellion in the taking of Scarborough Castle in the County of York he being taken was arraigned in the Kings Bench upon an Indictment of Treason and the Indictment was contra legiantiam suam debitam and the Indictment was rul'd to be good although he was no Subject because it was in the time of Peace between the Queen and the French King But if it had been in the time of War then the Party should not have been indicted but ransomed It was likewise rul'd there that the Trial was good although the Venire facias awarded in York was general and not de medietatem Linguae for such Trial per medietatem Linguae does not extend to Treasons 4. Ma. Dyer 145. the Indictment ought to omit the words Naturalem Dominam suam and begin that he intended Treason contra Dominam Reginam c. Hill 36. Eliz. in B. R. Stephano Ferraro d'Games case in Dr. Lopez Treason If an Alien Enemy come into this Realm and be taken in War he cannot be indicted of Treason for the Indictment cannot conclude contra legianeiae suae debitum for he never was in the protection of the King and therefore he shall suffer death by Marshal Law and so it was rul'd in 13 H 7. in Perkin Warbecks case who being an Alien born in Flanders feigned himself to be one of the Sons of King Edward the 4th and invaded the Realm with intent to take upon him the Dignity who had his Judgment and Trial by Martial Law and not by the Common-Law of England VII The Kingdom of Ireland was a Dominion separated and divided from England at the first and came to the Crown of England by Conquest in the time of Henry the Second and the meer Irish were as Aliens Enemies to to the Crown of England and were disabled to bring any action and were out of the protection of the Laws of this Realm and five Scepts of the Irish Nation were only enabled to the Laws of England viz. Oneil de Ultonia O Molloghlin de Media O Connoghor de Connacia O Brian de Tholmonio and Ma Murogh de Lagenia as appears by the Records
of the Dominion of Ireland and several grants have been made to the Irish which proves them to be meer Aliens But afterwards though the same was a separate and divided Kingdom yet whilst they were under the subjection and obedience of the Kings of England if High Treason had been committed by an Irish man he might be arraigned indicted and tried for the same within England and by the Laws of England and so it was resolved by all the Judges of England in Orucks case 33 Eliz. and also in Sir John Perrots case that Ireland was out of England and yet that all Treasons committed there were to be tryed in England and that by virtute of the Statute of 38 H. 8. cap. 23. Arthur Crohagan an Irish-man was arraigned for that he being the Kings Subject at Lisbon in Spain used these words I will kill the King inuendo Dominum Carolum Regem Angliae if I may come unto him because he is a Heretick that afterwards he came into England and was taken and tried by a Jury of Middlesex and was found guilty and it was held High Treason by the Course of the Common Law for his Traiterous intent and imagination of his heart is declared by these words and within the Statute 25 E. 3. He confessed he was a Dominican Fryar and Priest in Spain Bracton sayes that an Alien born cannot be a witness but that is to be understood of an Alien Infidel for the Bishop of Rosse being an Alien born a Scot was admitted to be a witness and sworn Yet an Infidel may bring an action against another Merchant or any other however and that without controversie The testimony of a Renegadoe is not to be received at this day by the Laws of any Christian Kingdom or Republique he that hath once renounced his Faith can never be believed therefore he cannot be a witness and so it was rul'd where one Domingeo de la Cardre a Renegado who was sworn and gave evidence afterwards a new Trial being granted his testimony was rejected and he not suffered to be sworn it being at his Trial proved that he was a Spaniard and a Christian by birth and education and after became a Jew If an Alien be resident and commits an offence he shall have the benefit of the Kings general pardon but if he is not in the Kingdom at the time of the pardon promulgated then he looses the benefit of the same for he is no otherwise a Subject but by his residence here CHAP. V. Of Planters I. Of Possession and its original right II. Of Vacancies natural which gives a right to Planters III. Of Civil Vacancies how far the same may be possessed IV. Of Planters whether they have a firm right so as to dispose by Will or only a Usufructuary possession V. Of Planters wanting things necessary for the support of humane life generally considered according to the Laws of nature VI. Wherefore one man may naturally have more then another and what conditions are annexed to such fortunes for those that are in necessity VII Whence it is that there was at the beginning and is still a Tacite condition of reassuming our Original rights in case of extream or natural necessity for natural Community VIII Of necessity considered in a Christian Community IX Of the Primitive Communion considered in reference to its restrictions and limitations X. Of those things that are dedicated to God and holy use whether subject to the relief o our necessities I. HAving in the first Chapter of this Book discoursed of the original of property deducing its inception to that which we call possession or meum and how the same may be altered by War it may not seem unnecessary to discourse of the acquiring of property in the new discoveries of those vast immensities of America which being prepossess'd seem to deny us legally that title which we pretend to Possession by Law is esteemed the highest title that men can pretend to what they enjoy which is nothing else but positio pedis as if the Ancients had no other seal to confirm their tenures but the prints of their feet and good reason seeing the mind is not able to take up a place so well as the Body for many mens wills may concur in wishing and liking the same thing but many bodies cannot concur to the possessing it Besides the mind cannot set an outward mark on what it likes that thereby others might be warned to abstain from it all which the Body properly doth Abrahà m and Lot going to plant declared no more then this there was room or vacancy enough and therefore without further examination or scruple they knew they might turn to the right hand or to the left to possess what they would to themselves II. This Vacancy which gives us a right to plant is to be considered in two respects 1. Natural 2. Civil the first is in things which may be possess'd but actually are not neither in property nor use such a Vacancy which is nullius in bonis might be occupied by Switzers who as Caesar sayeth would fain have changed their rough Hills for some nearer Campania and Deserts or Places un-inhabited may be possess'd and appropriated to the first Planter and that without all controversie but especially by those who being expulsed from their own Seats or Estate seek entertainment abroad The Ansebarians in Tacitus cry out As the Heaven to the Gods so is the Earth granted to Mortals and what is void is publique Looking up to the Sun and Stars they did openly as it were enquire of them Whether they were pleased in beholding any ground empty and without Inhabitants they should rather cast forth the Sea and overwhelm the Spoilers of the Earth III. Civil Vacancy is where it is not absolutely incorporated as among the roving Arabians and Moores in Barbary and other Affricans and Americans who possess one place to day and another to morrow these by their frequent returns shew that they abondon not the Places they remove from as derelicta quae quis in bonis amplius numerare non vult we can not say that their natural or voluptary interest in them is no way improved for Grotius seems to be of opinion that if there be some Desert or barren ground the same ought to be granted to Strangers upon their request and says he It is also rightly seized on by them giving this reason For that Lands ought not to be esteemed occupied which is not cultivated but only as to the Empire which remains entire to the first People they do no offence who inhabite and manure a part of the Land that lyes neglected * But we must press this Argument of Grotius very tenderly least by the same reason others conclude that those Estates which are not competently improved are derelict and occupiable by others which would introduce perpetual confusions and easily perswade every man that he could husband his
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
one Factor five distinct Bales of Goods and the Factor makes one joynt Sale of them to one man who is to pay one moyety down and the other at six Moneths end if the Vendee breaks before the second payment each man must bear an equal share of the loss and be contented to accept of their dividend of the Money advanced But if such a Factor draws a Bill of Exchange upon all those five Merchants and one of them accepts the same the others shall not be obliged to make good the payment V. And as the Authority and trust reposed in Factors is very great so ought they to be provident in their actions for the benefit of their Principals and therefore if Factors shall give time to a Man for payment of moneys contracted on Sale of their Principals Goods and after the time is elapsed they shall sell Goods of their own to such Persons for ready Cash leaving their Principals unreceived and then such Men break and become insolvent the Factor in equity and honesty ought to make good the losses for they ought not to dispense with the non-payment of their Principals Moneys after they become due and procure payment of their own to an other mans loss but by the Laws of England they cannot be compelled VI. Yet if Goods are remitted to a Factor and upon arrival he shall make a false Entry at the Custom-house or land them without the Customer whereby they shall incur a seisure or forfeiture whatsoever the Principal is endammaged he must inevitably make good nor will such general clause help him as above But if a Factor makes his Entry according to the Envoice or his Letter of Advice and it falls out the same are mistaken if the Goods shall be lost yet the Factor is descharged And as fidelity diligence and honesty are expected from the Factor so the Law requires the like from the Principal judging the act of one to be the act of the other and therefore if a Merchant shall remit Counterfeir Jewels to his Factor who sells and disposes them for valuable considerations as if they were right if the Factor receives any loss or prejudice thereby by imprisonment or other punishment the Master shall not only make good the dammage to the Factor but also render satisfaction to the Party damnified and so it was adjudged where one How was possessed of three Counterfeit Jewels and having Factors in Barbary and knowing one Southern a Merchant was resident on the Place consigns those Jewels to his Factor who receiving them intreated Southern to sell those Jewels for him telling him they were good Jewels whereupon Southern not knowing they were counterfeit sold them to the King of Barbary for eight hundred Pounds they being worth really but one hundred Pounds and delivered the Money to the Factor who remitted the same to How the King of Barbary not long after finding himself couzened committed Southern to Prison till he repaid the eight hundred Pounds Whereupon Southern coming for England brought his action against How and had Judgment to recover his dammage for the Principal shall answer for his Factor in all cases where he is privy to the act or wrong And so it is in Contracts if a Factor shall buy Goods on the Account of the Principal especially if he has used so to do the Contract of the Factor will oblige the Principal to a performance of the bargain VII When Factors have obtained a provenue or proffit for their Principal they must be careful how they dispose of the same for without Commission or order they must be responsible Goods remitted to Factors ought in honesty to be carefully preserved for the trust is great that is reposed and therefore a Factor robbed in an Account brought against him by his Principal the same shall discharge him And so it is if a Factor buyes Goods for his Principal which afterwards happens to be damnified the Principal must bear the misfortune But if a Factor shall dispose of the Goods of his Principal and take Money that is false he shall there make Good the loss yet if he receives Moneys and afterwards the same is by Edict or Proclamation lessened in value the Merchant and not the Factor must there bear the loss Again in Letters of Credit the Factor must be sure to see whether the Commission is for a time certain or to such a value or not exceeding such a Sum or general in which he must have a careful eye VIII A Merchant remits Goods to his Factor and about a Moneth after draws a Bill on him the Factor having Effects in his hands accepts the Bill then the Principal breaks against whom a Commission of Banckrupts is awarded and the Goods in the Factors hands are seized it has been conceived the Factor must answer the Bill notwithstanding and come in a Creditor for so much as he was enforced by reason of his acceptance to pay IX If a Factor enters into a Charter Party with a Master for Freightment the Contract obliges him but if he lades aboard generally the Goods the Principals and the lading are made liable and not the Factor for the Freightment The Principal orders his Factor that as soon as he hath laoded he having Moneys in his hand to make an Assurance on the Ship and Goods if the Ship happens to miscarry by the Custom of Merchants he shall answer the same if he hath neglected his Commission so it is if he having made an Assurance and loss hath occurred he ought not to make a Composition without orders from his Principal Generally the actions of Factors do depend on Buying Selling Freighting and all other the Heads that have been treated in the Second Book by which their employment is universal in matters Maritime and of Commerce and the questions which would arise touching the same if treated on would be infinitum However these are to be the Standard rules which should govern their actions viz. honesty faithfulness diligence and observing of Commission or Instructions which being considered and weighed by those that shall be Judge of their actions a right understanding and determing of the matters arrising between them and their Principals would soon be ended But those sort of Factors that have wanted those things seldom or never render any other account but long and tedious Chancery Suits by which they not only have endammaged their very Trade but seek to marry their Principal to a double affliction by obliging them to sue either a Beggar or that which is worse a naughty man On the other hand Factors that behave themselves worthily and prudently in the service of their Principals ought after their tedious service be numbered amongst those that justly challenge that worthy denomination of Merchant And such was he who never made breach of Commission in the service of his Principal but once that was when Wines were committed to him to dispose of but the price by reason of a
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
for Decrees given in the Chancery in England which have been exemplyfied under the Great Seal directed to the Kings Lievtenant for the putting the same in execution there but in no case a Judgment given in England may be certified over under any other Seal but that of the Great one But in Scotland it is otherwise for that is a Kingdom absolute and not like Ireland which is a Crown annexed by Conquest but the other is by Union and though they be united under one Prince ad fidem yet their Laws are distinct so as if they had never been united and therefore the execution of the Judgments in each other must be done upon Request as above and that according to the Laws of Nations XI But in Collonies or Plantations which are reduced into the condition of great Families have not this Right of Requesting for they are governed by the Laws prescribed by the Souveraign of the same who may set Jurisdictions make them places priviledged not to have the Persons attached or arrested in any other places but within their own bounds so likewise upon their first forming or Institution may so declare that for any debt or Contract made or done in any place but in that of the same Plantation they shall not be impleaded and therefore in Virginia at this day if a Man contracts a debt in England flies to the same she cannot be there impleaded But if a Man takes up Goods and carries the same over thither there he may be sued in the place so likewise if it can be proved he carryed over the money borrow'd and this amongst others of the Laws and Constitutions of those Plantations is preserved inviolably the same being as it were a pledge and general safety which is given to those Inhabitants that shall resort thither and there plant themselves for the good of the Place and although those that thither flie by reason of great and unreparable losses have contracted debts far beyond their ability to satisfy a failer of which in strictness of Law may if the Creditor pleases oblidge their Bodies to Imprisonment yet doth it not thence follow that the same ought to exacted for though the Carcass of Men may gratify the revenge of the Creditor yet it never can pay the debt wherefore if those ends by themselves in a morall estimation be not necessary or if other ends on the opposit part occur not less profitable or necessary or if the ends proposed by Imprisonment may be attained another way it will then follow that if there be nothing of obligation on the Debtors part to render himself a Prisoner to the Creditor that then if the same can or may be avoided by flight the same in conscience may be done according to that of Cicero It was not fit perhaps to dismiss him being brought to Judgment but that he should be enquired after and brought to judgment was not necessary FINIS A Short Table of the Principal Matters contained in this Book Distinguished by Lib. for the Book Chap. for the Chapter and §. for the Paragraph Accessory Lib. Chap. § PYrat in the attempt kills a person by the Law Maritime the Slayer onely is Principall and the rest onely Accessories but by the Common Law otherwise 1. 4. 13 No Accessory to Pyracy can be tryed by virtue of the Stat. 28 H. 8. but he must be tryed in the Admiralty 1. 4. 23 26 Acceptance Acceptance of a Bill of Exchange what words amount to the same 2. 10. 15 20 Actions Actions of Trover will lye for an 8th or 16th part of a Ship 2. 1. 12 Admirals The reason of their power 1. 6. 5 Lib. Chap. § Admiral where 10th part of the Prize is due to him 1. 1. 〈◊〉 Admiral hath no Jurisdiction infra Corpus Com. 2. 2. 2 He may issue forth Commissions for the assembling of Court Martials 1. 14. 16 Execution of a Sentence of Death cannot be without his leave ibid. Agrument Made with Forraigners by the Commissioners of the Custome-House all persons Subjects shall have benefit of the same 2. 15. 3 Agreement for Freight where the same is determined by the fault of either party 2. 4. 3 Cannot be made with a Mariner for the Freightment of the Vessel 2. 4. 14 Averidge Vide Contribution Alien Not Capable of the Kings Pardon unless they were resident at the time the same was promulgated 3. 4. 7 Capable of taking but not of enjoying What they may hold and if they depart who will enjoy the same 3. 2. 1 Cannot transfer to his Heir to what he is disabled to hold 3. 2. 2 Alien marries an English Woman that is seized the Issue shall inherit 2. 2. 6 Though the Issue be born beyond the Seas shall inherit 3. 2. 7 Born in the Kings Dominions not Aliens Purchases Lands with a Natural born Subject to them and their heirs they are Joynt-Tenants 3. 2. 11 Aliens resident and Aliens travelling through France the difference bâ—…tween them as in reference to their Estates 3. 3. 8 Administration of an Alien's Estate may be committed to the next of Kin. 3. 3. 9 Diffâ—…rence between the Crowns of France and England in reference to the Births of persons born in places which they formerly possest 3. 3. 10 Alien in League his Action is only to be abated but in Enmity may conclude in barr 3. 4. 1 Alliances Alliances not determined by the death of the Prince 1. 7. 6 Ambassadors Where obliged not to Treat with any other but the Prince 1. 7. 4 How Regulated at the Congresse 1. 7. 5 Their Function 1. 10. 1 How protected though the Messengers of Rebels or Thieves 1. 10. 2 Violence or killing them how punishable 1. 10. 3 15 May be rejected and not received and when 1. 10. 4 Where punishable by the Lawes of Nations 1. 10. 5 6 14. 9 Are not to render account to none but to them that sent them 1. 10. 6 Not bound by any thing that is not malum in se jure gentium 1. 10. 10 Yet obliged to the formalities of Law 1. 10. 11 He may have Soveraign Jurisdiction over his Family by the concession of him with whom he resides 1. 10. 12 His Goods and Moveables cannot be seized on for any Civil matter 1. 10. 13 Ambassadors of Venice cannot receive any Present or preferment from any Forraign Prince or State 1. 10. 16 Bailio at Venice is the Ambassador for that Republique 1. 10. 6 Anchors Anchors may be placed for conveniency against the Owners will in other places 2. 9. 7 Not fastning of Buoyes to them punishable 2. 7. 7 Appeal Appeal lyes from the Commissioners of Assurances to the Lord Keeper 2. 7. 16 Assurance Assurances private and publique are both alike as in reference to the obtaining satisfaction 2. 7. 1 2 3 May be made on Ships or other things as well as Merchandize 2. 7. 4 Assurors are discharged upon the alteration of the property 2. 7. 13 They are not to answer
obliged to continue Partnership 2. 1. 3 The Master is obligeable by them 2. 1. 4 Not obliged to joyn in an Action 2. 1. 5 Property of the Ship followes the Owners of the Materials not of the Builders if it be built all with their Goods 2. 1. 7 Package ON what the same is to be paid and what Packers are to take 2. 13. 4 Pardon Of Felonies extends not to Pyracy 1. 4. 23 25 Petty Averidge When due 2. 2. 6 Planters Of the Right of Planting 3. 5. 2 3 Where they may dispose of the same by Will 3. 5. 4 Plunder Souldiers so doing may be slain by any man whom they shall attempt 1. 6. 10 Ports What 2. 14. 7 Within the Body of the County 1. 4. 23 Robbery committed in them not Pyracy ibid. Ports of Nations in Amity may deliver Ships brought in there by an Enemy 1. 1. 9 Neuter Ports the peace of them ought to be preserved 1. 2. 17 1. 1. 10 1. 3. 7 Ports not to be visited after a Warr begun by an Enemy 1. 3. 11 Ships driven in by Stress of weather not subject to reprize 1. 2. 1 Peace of them ought to be kept 1. 5. 14 Possession The highest Title that men can pretend to what they enjoy 3. 5. 1 Yielded without fighting to be used civilly 1. 14. 12 Prize Ships may not alwayes be possest 1. 13. 10 Possession of a Ship creates no Title 2. 1. 11 Poundage What and how the same may be levied 2. 11. 10 Prerogative The King hath to dig in any mans ground for Salt-Petre 1. 1. 4 Prescription It s uncertain beginning 1 15. 14 15 Depends not on the Corporeal but Civil possession 1. 5. 13 Availes not in things that have been stolne 1. 4. 20 Prest The punishment of those that run away 1. 6. 7 Vide Marriners Primage When payable 2. 9. 4 Princes Responsible for Injuries publique and in prudence ought to redress Injuries private especially to Forraigners 1. 2. 8 Responsible by the Lawes of Nature for the neglect of suppressing Pyrats 1. 4. 2 Not bound to Treat personally with Ambassadours 1. 7. 4 The death of one determines not the Alliance 1. 7. 6 Their wisdome is to be considered in Leagues 1. 7. 9 Are not to examine one anothers others Title but it 's enough they are in possession 1. 7. 18 Though driven out of their Country may consent that Commerce shall be forbidden to his Subjects 1. 9. 4 The declared will of them cannot make all those of our Acts Sins 1. 12. 8 Nor can their Interdiction if disobeyed when their Subjects are possessed by their Enemy create an offence ibid. One of their Chiefest happinesses is a good General 1. 13. 1 How they govern themselves in Treaties 1. 7. 1 23 Bound to render Honour to their Equal ibid. Peace Ought to be purchas 't at any rate and to be maintained with the greatest Faith 1. 15. 18 Prescription Silences all Tribunals though its Inception is not known 1. 15. 14 It's necessary to have the force of Right 1. 15. 15 Prisage Not grantable away without Act of of Parliament 2. 8. 1 Not due till breaking of Bulk 2. 8. 3 Prisage becomes due if the property be changed though the Goods are not landed 2. 8. 6 Priviledge The Hanse Towns had several and when they determined and upon what occasion 2. 12. 1â—… Charta Mercatoria on what Considerations the same was granted 2. 12. 7 Prize Prize the 10th part justly due to the Admiral 1. 1. 9 Equally divided amongst the Captors 1. 2. 20 Prize Ships their Papers are to be preserved 1. 13. 9 May not alwayes be possest 1. 13. 10 Proclamation Whether necessary before a Warr 1. 1. 14 Having passed where the Goods of Friends may become Prize ibid. Prohibition Goods prohibited may subject the Vessel to a Forfeiture 2. 2. 17 Property When first introduced 1. 1. 3 Where the Property of the Vessel followes the Owners of the Materials 2. 1. 7 The property of the Ship and Goods of a Pyrats becomes his that takes them 1. 4. 11 19 Legalis Captio difference between that and Spoliatio as in reference to the changing of property 1. 1. 9 Cannot be questioned but by the Common Law 1. 10. 11 Can be questioned in the Admiralty if before sale the Ship was sold bona fide 2. 1. 9 Property of Goods altered by being taken and retaken in Warr 1. 4. 19 Property of Goods taken by Pyracy altered by sale in a Market Overt 1. 4. 21 Protection The true Ensign of Liberty 1. 5. 2 What and by whom accepted 1. 8. 2 Protest Subjects every of the Drawers that subscribed to answer the summe drawn 2. 10 16 Protest the use and meaning of the same 2. 10. 31 Pylott When he is discharged of his Duty and how obliged to answer for negligence or wilfulnesse 2. 9. 1 2 3 Pyrats What 1. 4. 1 Improperly called Enemies yet hold an equality 1. 4. 3 Are not to have succour 1. 4. 4 Overcome in the Ocean may be immediately executed by the Lawes of Nature 1. 4. 11 Or brought to a Port and the Judges refuse or the Captors cannot stay without prejudice may be executed 1. 4. 11 Pyrats onely questionable properly in that Country where the Ship is carried 1. 4. 14 Quarter NOt to be given to persons taken in Fire-Ships 1 14. 12 To demand it not repugnant to the Oath called Sacramentum Militare 1. 14. 13 Rebellion IN those that shall not strike to the King of England's Flagg 1. 5. 8 Reception Reception from an Enemy what is gain'd by the same 1. 1. 7 Release Of the Master where it binds the Owners 2. 4. 15 Renunciation of the Lading when it may be 2. 4. 13 17 Relief Appointed for Marriners and maimed Souldiers 1. 14. 28 Religion Whether lawful to plant the same by force of Arms 1. 1. 5 Renegado The Policy of the Turk in making them 3. 1. 6 Cannot be a Witness by the Lawes of any Christian Kingdome 3. 4. 7 Reprizals From whence derived 1. 2. 1 Cannot be against the Goods of Ambassadors 1. 2. 16 Not good without lawful Warrant or Commission 1. 2. 1 Ships taken by virtue of the same divests not the Owners of their property unless carried infra presidia 1. 1. 7 8 The causes precedent before the same are grantable 1. 2. 6 Reprizal Ordinary and Extraordinary by the Lawes of England 1. 2. 7 Persons exempt from the same 1. 2. 16 Reprizals granted and they commit Pyracy they forfeit their Vessel 1. 4. 2 Captains of Ships of Reprizal commit Pyracy cannot oblige the Owners for satisfaction 1. 14. 18 Request Ought alwayes to precede Reprizal 1. 2. 8 â—…etters of Request allot time certain 1. 2. 13 The same being made may sufficiently impower one Nation to execute the Judgments of another 3. 8 Restitution Where the same may be made of Ships regain'd from an Enemy 1. 1. 7 8 Restitution of Ships where the same
ought not to be done by Nations in Amity 1. 1. 9 Restitution of the overplus the debt and damages satisfied 1. 2. 22 Restitution only to be made in that Country whither the Vessel is carried 1 4. 14 Scavage WHat and for what due 2. 14. 1 Sea Princes may have an Exclusive Property in the same 1. 5. 11 It is a common High-way and such as are born on the same not Aliens 1. 5. 13 Princes may have an exclusive property in the same 1. 5. 2 Subject to protection and to be divided amongst men 1. 5. 4 5 Sea inseparably appendant to the Kingdom of England 1. 5. 13 Not without protection 1. 5. 6 The British Sea the Dominion vindicated by King Edgar and others 1. 5. 7 British Sea is the 4. Seas 1. 5. 18 Kings of England have istum Regimen exclusivè of the Kings of France 1. 5. 11 The importanee of the same to the Crown of England 1. 5. 14 The British Sea ever belonged to the Empire of this Isle 1. 15. 2 The Extent thereof and the King of England's Right on the same how far agreed by the Dutch Treaty 1. 15. 3 Servitude or Slavery Brought in by the Lawes of Nationt 3. 1. 1 Those that continue in that state can have nothing of their own 3. 1. 2 Children are Slaves and the Reasons that fiâ—… introduced that Dominion 3. 1. 4 Refuge was granted by the Jewes to such 3. 1. 5 Slavery become obsolete in Christendome 3. 1. 6 Servitude in some respects may stand at this day 3. 1. 7 A Slave might be imprisoned at the will of his Lord 3. 1. 9 Sheriff May sell bona peritura of Shipwrackt Goods 2. 5. 8 Ships In necessity may take Goods from another by force of Arms 1. 4. 18 Ships gain'd by an Enemy in Battail and regain'd where the property is lost 1. 1. 7 Ships of Warr retaking a Prize from an Enemy restitution of the same where made ibid. Fire Ships not subject to Quarter 1. 14. 12 Ships where subject to an Embargo by the Laws of Enemies 1. 1. 11 Ships of Friends freighted with the Goods of Enemies 1. 1. 12 Ships taken by Letters of Marque ought to be carried infra presidia of that Prince or State by whose Subject the same were taken 1. 2. 19 Ships taken by a lawful Commission but the property not being changed by the Lawes of Nations the persons may be questioned Civiliter but not Criminaliter 1. 1. 4. Ships may be Pressed for Publique Service 1. 6. 1 4 Though the Vessels of another Prince in Amity be they private or publique 1. 6. 2 4 Ships Pressed ought not to be imployed but on publique occasions 1. 6. 3 The punishment of those that shall break the Arrest 1. 6. 4 Newly built ought to make one Voyage before the Owners can part 2. 1. 3 King of England's Ships are not to strike to any Ship whatsoever generally and when out of Courtesie they may 1. 15. 6 Are to Salute Castles and Ports of Strangers and how the same is regulated 1. 15. 7 The Commanders of them are not to Salute their Admiral or Commander in Chief after they have done it once 1. 15. 9 Second Rate Ships when they are to Salute Noble-men coming aboard 1. 15. 9 Their Duties in Salutations 1. 15. 9 10 11 Ship taken in pieces and rebuilt is another Ship but if ript up only to the Keel otherwise 2. 1. 6 Ship repaired with another mans Plank who are the Owners 2. 1. 7 By the Sale of the Ship with all her Apparel and Instruments thereto belonging the Ship Boat passes not 2. 1. 8 May be Mortgaged in time of necessity 2. 2. 14 The various way of Freighting them 2. 4. 1 Perishes the Freight vanishes 2. 4. 13 Ships Encountring each other how the damage is to be settled 2. 9. 7 Not having two Decks and 16 Guns are to pay one per-Cent over and above the Book of Rates 2. 13. 3 Burning any of his Majesties Ships the party to be punished with death 1. 14. The Kings Ships and their Provisions not to be imbezelled uâ—…r they by negligence or wilfulness destroyed 1. 14. 24 The French Ships are to pay 10 s. for every Passenger that shall passe in or out of this Kingdome 2. 13. 1 Societies They make but one Body and are to make but one single Entry of their Goods 2. 13. 13 Where their debt obliges each Member and where not 1. 2. 2 3 A Bill accepted by one binds not the rest though it may the party acceptor 2. 10. 19 Superiours not responsible to Inferiours by the Lawes of Nations 1. 4. 18 Spies Lawful by the Lawes of Nations how used if catch't 1. 14. 21 1. 13. 6 Ships in that Service not obliged to Fight 1. 13. 7 Spoyl Goods may be as well spoyled as taken 1. 1. 15 Spoliatico the difference between that and Legalis Captio 1. 1. 9 The Spoyl or Prize is to be equally divided as well to those Ships that are present as those that attaque and enter 1. 2. 10 States May execute the Judgments of each other 3. ult 8 But not in cases of Life or Honour 3. ult 9 Subjects Share in the Indignity offered to their Prince 1. 15. 16 Subsidy On what it issues out 2. 12. 8 How the same is governed upon Woollen Cloaths 2. 12. 11 Care WHen to be allowed and for what 2. 13. 14 Traytors It is lawful to make use of a Traytor but not to make one 1. 14. 20 Treason in an Alien is to be tryed by the course of the Common-Law and not per medietatem 3. 4. 5 Treason out of the Realm may be tryed within the Realm 3. 4. 7 Treason Is subject to be punished every where 1. 11. 2 They are to be delivered up 1. 11. 4 If Treason in killing an Ambassadour Creaties Of Truce for years settles a Peace and preserves the Honour of each party 1. 9. 3 Less subject to a Rupture then a Peace 1. 9. 4 Breaches of Truces how punishable 1. 9. 5 Tribute It is lawful to pay Tribute to Caesar what is meant by the same 1. 12. 2 Vide Customes Tiumphs Their Antiquity Use and Advantage 1. 14. 29 Trust. A Stock in a Company is a Trust and is governed accordingly 2. 11. 6 Tryals Tryal of Warr must be by the Records of Courts and not Juries 1. 1. 6 Tryals per medietatem their Antiquity 3. 4. 1 It matters not of what Tongue so the moyety are Aliens 3. 4. 3 If both parties are Aliens then all are to be Natural born Subjects ibid. May pray Venire facias as well after the awarding the Venire as before 3. 4. 4 Vacancy GIves a Right to plant 3. 5. 2 Civil vacancy what is meant by the same 3. 5. 3 Victuals Failing a Shipboard what every one hath a Shipboard may be brought forth 1. 1. 4 Voyage Voyage when the same begins 2. 7. 10 Trading Voyage but one Voyage 2. 4.
6 Usury Advancing Money on a Contingency not within the Statute 2. 11. 13 14 Usura Maritima What is meant by the same 2. 11. 14 Want That or Plenty is the measure of things 2. 11. 4 Wart When by the Lawes of England 1. 1. 6 Warr the just causes of the same 1. 1. 5 Injury or spoyl committed to persons or goods in time of Warr cannot create a cause for Reprizal 1. 2. 15 An innocent person may be deserted and delivered up to death to prevent a Warr 1. 11. 6 If bound to deliver up himself ibid. Who are exempted from the Sword in time of Warr. 1. 14. 18 In Warr Contribution may be paid to both parties 1. 12. 3 Warr introduces the greatest of Evils 1. 15. 17 The Conditions that are requisite before the same be commenc'd ibid. Uncertain danger no cause for the same 1. 15. 11 Wharfes Which are lawful in London 2. 14. 10 Wharfingers obliged to make Satisfaction for Goods damnified or lost 2. 9. 4 Wines Of all sorts are to pay Aliens Duties 2. 13. 6 Words Lost or not lost how those words are to be construed 2. 7. 5 King and King King and State State and State how to be understood 8. 7. 17 18 At and from the Port of London how construed 2. 7. 10 Words that amount to an acceptance of a Bill of Exchange 2. 10. 20 Wreck In matters of Wreck there is a Contract between the party loserâ—… and they that find the Goods 2. 5. 1 Punishment of those that steal the Goods of Shipwrack persons by the Civil Law 2. 5. 2 If any thing escapes alive no Wreck by the Lawes of England ibid. The Kings of England hath the same by their Prerogative 2. 5. 5. Wreckt Goods pay no Custome 2. 5. 9 Wreck of the Isle of Wight passe not without expresse words 2. 5. 10 The End of the TABLE SOme Slips having happen'd in the Printing this Book in the Author's absence He desires the Reader to amend the same and to allow him his favourable construction Lactantius lib. 9. †Seneca 4. de Benesicijs Cap. 18. †Leg. ut vim D. de just jur n. 7. 8. * Vasquez 2. Controv. 54. 4. †Florentius 3. p. tit 22. Sect. 5. Leg. Servus D. de Serv. export * Cicero offic lib. 11. ex panetio * Coke 2. Inâ—… fo 28. Anno 1453. Vide Knowls History of that Monarchy Mirror Cap. 5. Sect. 2. 11 Ed. 3. Cap. 3. †Vide Cambden's Q. Elizabeth Anno 1666. 1672. 1673. Cambden Quâ—…stus Omnis indecorus patribus sayes livy Lib. 1. Dec. 3. Though they had 100 Rostrated Shâ—…s and 75 Gallies under Caius Duillus and his Collegue 〈◊〉 polybius observes †Cambden Strabo lib. 3. Gaules Town near Yarmouth the Mart for those Neighbouring Marchants Abrabamus Whelochus de priscis Anglorum legibus written originally by Mr. Lambard * Inserted in leges Edvardi and afterwards confirmed by the Norman Conqueror Mr. Selden's Mare Clausum lib. 2. Cap. the 10th to the 16. Matthew Westm. Anno 1035. â—…o 409. Selden Mare Clausum lib. 2. Cap. 11. * Coke 4. Inâ—…t fo 142. †Inter Leges Marinas sub fine anno Regni Regis Johannis 2. * Cic. ad Artic. l. 10. Ep. 7. Born in England but resident at Genoa Campanella Histor. Hispan Tempore Eliz. Regina Angl. Manil. pro Oratat Lege And Mr. Serjeant Calis must be so understood of the ancient Civil and Modern Roman Law reduced into one and they are not now two Lawes one Civil and the other Imperial but onely one that is the Imperial Vide his Reading on the Statute of Sewers Sect. 1. fo 31. The Articles of Enquiry annexed to them in 12 Ed. 3. The Inquisition at Quinborough 49 E. 3. Anno 1375. Statutes of Enquiry translated by Roughton Selden tit of Honour lib. ult Cap. ult It is called Imperium 〈◊〉 cause it proceeds froâ—… 〈◊〉 authority of the 〈◊〉 and not from any 〈◊〉 inherent in the party Leg. 1. §. de Const Princâ—… Coke lib. 106 fo 73. 〈◊〉 Case del Marshalsea Justin. lib. 43. A Theater is common yet the place possessed by any one may be rightly called his own Justin. lib. 2. ut de Scythis loquitur Trogus Primum inter Homines mali nescia adhuc astutiae inexperta simplicitas Seneca Naturalium 3. in fine Ne insignare quidem aut partire limite camp fas erat Grotius de Mari libero cap 15. †Cic. Offis 〈◊〉 Addendum illud Quintiliani Si haec conditio est ut quicquid in usum hominis cessit proprium sit habentis profecto quicquid jure possidetur injuriâ—… aufertur Maâ—… erobius Saturn lib. 3. c. 12. Leg. 2. §. cum in eadem D. ad Leg. Rhodani Quo non fragm §. Quod ait D. incend Leg. Quemadmodum §. item D. ad l. Aquilam 12 Ed. 3. tit distress 170. 11. H. 7. 5. Reniger Fogassas Plowden c. 1. to the 10. Coke 3 Inst. sol 83. Bald lib. 3. de rerum diversorum seems to have been of opinion that by the Laws of Nations one may take Armes to abate the growing power of his Neighbors Sed ut vim pati posse ad vim inferendam jus tribuat ab omni equitatis ratione abhorret But that a possibility of suffering force should give a right of offering of force this is far from all equity says the excellent Grotius lib. 2. cap. 1. sest 27. Sir Walter Raleigh in Hist. of the Word cap. of Duels so 550. â—…4 E. 3. tit Scire facias 122. inter Mortimer and Th. Earl of Lancaster Xenoph. 5. de Iustit Cyri. Aristotle 1. Polit. Hujus modi res non tam capta quam recepta intelligitur per D. per Pomponius L. Leg. in Bello Parag. Si quis servum in pr. de Capt. post 2. R. 3. s. 2. 7. R. 2. Trespass Statham Pl. 54. M. 8. Jac. in B. R. Brownlow 2. part Westons C. * Consulatu Maris c. 283. 287. Constit. Gallicae lib. 20. tit 13. art 24. 7. R. 2. Trespass Statham pl. 54. a Res quae intra Praesidia perductae nondum sunt quanquam ab hostilâ—…us occupatae Dominum non mutarunt ex Gentium jure Grotius de jure Belli ac Pacis l. 3. c. 9. b Trin. 17. Car. 1. in B. R. Marshe's Reports c For this is not an absolute Property immediately vested in the Captor upon the taking but a conditional Property to answer the original debt or damage which cannot be done without a Judicial adjudication the oportunity of which he hath lost by bringing the prize into the Country of another Prince for as to private War their Countreys are as an Asyllum per leg libertas de Leg. Jur. Buistrod 3. part f. 28. cited in Marsh's Case The getting of Letters of Reprizal against a Nation does not make a War between both States nor can they be said to be at enmity 22. E. 3. f. 23. 2 R. 3. f. 2. 7.
savctiori Theologiae consentaneum Grotius de Jure belli lib. 3. cap. 2. ss 4. And seems to be of opinion by the Law of Charity that the prosecution of right for a Man's Goods which inevitably must be by the life of Man ought to be omitted Lib. 2 cap. 10. Livy lib. 2. Bartol in Leg. si quid Bello D. de cap. Ang. Salic in Leg. ab hostibus C. de Capt. Const. Gall. 20. tit 13. Art 24. Consul Maris 287. Trin. 17. Car. I. in B. R. Marsh Report Res qu infra Praesidia perdâ—…ctae nondum sunt quanquam ab hostibus occupatae Dominum non mutarunt ex Gentium Jure Mich. 32. Eliz. Somers and Sir Ric. Bulckleys C. Leonard 2. part 181. Trin. 3. Jac. in B. R. Rols fo 530. Sir Francis Moors Rep. 1. Jac waltham vers Mulgar 3. Eliz. cap. 5. 12. Car. II called the Act of Navigation Gregorias l. 〈◊〉 Fitz. H. N. B. fo 162. Old N. Bre 103. Reg. Orig. fo 176. * Seneca Benef. cap. 19. Pat. 26. E. 3. pars 1. M. 16. Dorso Pat. de An. 6. H. 5. pars 1. 〈◊〉 M. 9. Dorso De caeteris personis arrest capiend Leg. servus 〈◊〉 de Serv. export DD. ad Leg. si quis in servitutem D. de fur Leg. prohib c. de Jure Fisci Bartol in Leg. ut vim D. de just Jure n. 7. 8. Cicero Offic. 3. The Son of Cato Censorius having served as a private Soldier of pay under Pompilius the Legion being disbanded the Young Man was resolved to remain with the Army though but a Volunteer Cato wrote to Pompilius the General that he should give him an Oath the second time giving this reason Quia priore amisso jure cum hostibus pugnare non poterat Cicero sets down the very words of Cato to his Son whereby he admonisheth him not to enter into Battle Neque enim jus esse qui miles non sit pugnare cum hoste Cic. Offic. 1. Leg. Desertorem D. de rei milit C. Quando liceat unicuique Leg. 1 2. This matter was highly debated at the Councel board on the complaint that of Landy then Embassador for that Republique at London an 1629. Vide Hist. Republic Venet. fo 170. Treaty Marine at Lond. 1. of Decemb. 1674. In the Commission must always be mentioned that they have given such security Art 13. These Articles for their excellency are fit to be a Standard to all the Nations of Europe Art 14. In hostium esse partibus qui ad bellum necessaria hoste administrat Consulat Maris editus est Lingua Italica in quem relate sunt constitutiones Imperatorum Graeciae c. cujus librâ—… tit 276. Cambden an 1791. by the fourth Article at the Treaty at Lond. 1674 those Goods that may be used out of war as in war exceptShips may not upon any account be call'd prohibited nor subject to a condemnation except carry'd to Places besieged Art 4. See John Meursius his Danish History concerning the Prohibiting of Goods by those Northern State Vide postea the Grand prise condemned by Queen Elizabeth in tit Customs And Persons so attempting to releive an enemy may in some cases be punished but if the same be done by necessity of obedience though the parties are much to be blamed yet are they not to be punished and so it was with those which releived Sir John Old-Castle with provisions being taken were discharged By the 7. Article in the Treaty at London if the Skipper will deliver out the prohibited Goods the Ship may proceed with the rest in their Voyage or course as they please and the Ship shall not be brought into Port. Nec reus est mortis alienae inquit Augustinus qui sui possessioni murorum ambitum circumduxit si aliquis ex ipsorum usu percussus intereat Publ. Epist. 154. Leg. 5. de Nâ—…viul C. lib. 3. Trin. 3 Jac. in B. R. Rolls 5. p. Abridg. f. 530. Pompon Leg. cum loca D. de Religiosis Tacitus Anal. 13. Wars and Victories most part consist in taking and overthrowing Cities which work is not done without injury of the Gods the walls of Cities and Temples of the Gods partake in the same ruin the Citizens and Priests equally slaughtered nor is the rapine of sacred riches and prophane unlike so many are the sacriledges of the Romans as their Trophies so many are their Triumphes over Gods and Nations and then goes further Tot manubiae quot manent adhuc simulachra captivorum deorum Mox bene quod si quid adversi urbibus accidit â—…dem clades Templorum quae moenium suerant Even upon the same reason that the instruments of Husband-men are not to be taken for a pledge by the Civil nor Common Law Leg. exeunt C. quae res pign Coke sup Littleton 47. 〈◊〉 Cor. 9. 7. If the offenders could be found they ought to be yeilded up to Justice and if they have any Estate the sâ—…me ought to go towards the reparation of the dammage Caution is commonly taken upon the giving forth of such Commissions to prevent the same if possible They are generally restrained by Proclamation when a War breaks forth and commanded that none presume to set forth without a Commission Constit Galliae tom 3 tit 3. constitutione â—…nni 1583. cap. 44. Vide etiam tom conconstit 3 tit 2 constit Anni 154â—… cap. 44. Vide 2â—… Art at the Treaty at Breda between England and Holland and the 15. Article in the Marine Treaty at Lond. 1674. †Trin. 7. Jac. in B. R. Rolls f. 530. Vide Sir Francis Mâ—…ores Reports 1 Jac. Waltham versus Mulgarâ—… Leg. Hostes de verb. signif Leg. Hostis de Captivis Tacitus Annal. 3. Câ—…sar lib. 3. de Bello Civ Hist. Republ. Venice f. 91. ss ad Legem Rhod. de jactu l. 2. §. si navis a Pyratis redemptae Leg. Bona sides D. Expos. On a Commission grounded on the Stat. awarded Rott Admir 28. Eliz. m. 23. Rott Adm. anno 28. Eliz. m. 24. Normandy was lost by King John and out of the legeance of the King of England they were as now accounted Aliens 40. Assise placet 25 p. Shard Vide 2 H. 5 cap. 60. Selden Mare Claus. lib. 1. cap. 27 Case of Reginor Grimbald in tempor Ed. 1 Cited in 4. Inst f. 142. in c. of the Admiralty Injicere manum parcae traâ—…erunt debitum sibi sermone usus est juris nam manus injectio dicitur quoties nulla judicis aâ—…ctoritate rem nobis debitam vindicamus Servius â—…1 Aeneidos Leg. extat D. quod metus Honorius Theodosius idcirco Judiciorum vigor Jurisque publici tutela in medio constituta ne quis quam sibi ipsi permittere valeat ultionem Leg. nulli C. de Judaeis Plutarch in Caesar. Ralph Williams indicted for the murder of one John Terrey and Bridges Black and others as accessory Rott Admir 28 Eliz. M. 24. Yel f. 134 135. Res quae intra Praesidia
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
of Nations and those of Countries may * In Legat Cajum Quomodo autem satis digne quis explicet facilitatem ad mutua Commercia nobis datam Ne enim itineris longitudo impedimentum aliorum ad alios commetatibus ad ferret breviorum viam mare scilicet ubique terrarum disposuit Deus ad mundum tanquam unum domum communiter inhabitantes crebro nos invicem inviserimuâ—… apud se nata quisque alteri communicans vicissim commode acciperet res apud illum abundantes ac sic exiguam tenens terrae partem ita tanquam si teneret universam frueretnr ejus quae uibis sunt bonis Licet itaque nunc tanquam in communi mensa convivarum unicuique ea quae sibi opposita dare alteri longius accumbenti ac contra quae apud ipsum sunt accipere mann tantum extenta Vide Strabo lib. 8. lib. 16. * 13 H. 4. fo 14. †Lib. 5. fo 63. Case of the Chamberlain of London Vide the Plea of the Venetian Lawyers at the end of Mr. Selden's Mare Clausum Pereg. l. 1. de jure Fisci Cap. 1. num â—…7 L. libertus § 1. D. de statu hominum Fiunt etiam servi liberi homines Captivitate de jure gentium Bracton l. 1. c. 6. Littleton Sect. 175. l. Postlim § 1. D. de Captiv L. servorum § 1. D. de statu hominum Apud omnes peraeque gentes ait Cajus animadvertere possumus dominis in servos vitae necisque potestatem fuisse Co. Instit. fo 116. b. B. l. 1. D. de his qui sui sunt juris institit de his qui sui Leg. Cornelia ff de Testam Leg. Cornel. ff de vulg substit In jure Postliminii Leg. retor l. in bello § 1. l. bon ss de Capt. § 4. D. quibus mod jus patr solvit And Fortescue conceives it began ab homine pro vito introducta 〈◊〉 servitus Eâ—… libertas 〈◊〉 â—…inis 〈◊〉 naturae quarâ—… 〈◊〉 ab homine 〈◊〉 〈◊〉 redire gliâ—…t ut facit 〈◊〉 quod libertate naturalis privatur Cap 42. * Artic. of war Anno 1673. for His Majesties Forces Artic. 24. Bâ—…rt in l. nam serv. D. de Reg gistis In the Wars of the French with the Spaniards in Italy a Horseman was Ransomed for the 4 th of his yearly Pay Vide Maria na lib. 27 18. And in the last Belgick War the English dismist all the Flemings that were taken in War as they did the like with those of England An. 167â—… â—… Quam non sit ardua vertus servitium fugisse manu it is none of the hardest Vertues to embrace Death to avoid Slavety * 16 17. Car. 2. Cap. 24. It 's expired but His Maiesty is yet graciously pleased to consider the state of his poor Subjects and thereupon hath appointed a Committee of the Lords of the Privy Council for the managing of that Affair †Yet some of the English Merchants others at the Canaries do here support this unnatural Custom So likewise at Virginia and other Plantations Exod. 21. 26 27. Vide the Statute of 5 Eliz. who hath provided the like remedy in other places Deut. 15. 13. The Russians having seized on the Countrey of Illyria and made it their own by Conquest their Victory pleased them so highly that thereupon called themselves by a new Name Slave which is in their Language Glorious but in after time that warmer Climate having thawed their Northern hardness and not ripned their Wits when they were Conquered the Italians in derision calling them being then their Bond-men Slaves Sir Walter Rawleigh lib. 2. Cap. 17. § 8. Vide leg 12. Tabuli Sigonus de jure Roman l. 1. Cap. 10. * Justin. Inst. l. 1. tit de Ingenius vide Franc. Silo in Cattilin arâ—… 4. Goodwyn Antique Rom. 4. 33 34. Tertullian de de resur Carâ—… * As to some things Vide postea § 9. Magna Charta Cop. 14. 1 R. 3. so 4. Bacons Case 1 Cro. 4. so 437. Stephens Case 2 Car. in the Dutchy A Geius Noct. Artic. l. 3 c. 17. First granted 17 Joh. Reg. revived 9 H. 3. and since confirmed above 30 times * The Lord Morley and Monteagles Case for the supposed Murder of one Hastings 15 Car. 2. 10 E. 4. 6. 33 Hen. 8. Bro. title tryals 8 Ed. 3. Rot. Parl. m. 7. 28 E. 3. Cap. 3 Atamen in poenae nomine lene fuit Quippe relegatus non exul dicor in illo Ovid. de Trist. li. 2. Elig * Adde quod edictum quamvis immitte minaxque In London the same is done by exhibiting an Information in the name of the common Serjeant in the Mayors Court there against any Citizen that shall justly deserve so great a dâ—… honour * 17 Car. 2. Cap. 2. Mr. Selden observes That in the time of King Henry the First and of other Kings both before and after him that if any man accused of a Capital Crime done at Sea being publickly called Five times by the Voice of the Cryer after so many several days assigned did not make his appearance in the Court of Admiralty he was Banished out of England de mere appurtenant ou Roy d'Angleterre for 40 years more or less according to his offence Mar. Claus. so 12. 34 E. 1â—…1 H. 4. Bulstrod 3. part 188. 15 E. 3. Fitzh Petition pl. 2. 8. Re. fo 126. Case City of London Fo. 124 King Edward the 3d. granted to John Falcount de Luca an Apothecary of the City of London quod ipse omnibus libertatibus quas Cives Civitatis praedict habent in eadem Civitate alibi infra Regnum Angl ' nostrum habeat gaudeat utatur c. Rot. Pat. 32 E 3. In the Tower yet it was held That this Grant did not make him a Free-man of the City for it cannot be attained but by one of those ways †Case of the City of London Co. 8. Report Confirmed by Magna Charta cap. 9. Rott Parl. 7. R. num 37. 9 E. 2. cap. 2. 29 E. 3. cap. 2. 27 E. 3. cap. 11. 7 H. 4. cap. 1. 9 H. 4. this Act is not printed James Baggs Co. 11. Rep. Calvinuâ—… case Go. lib. 7. Yelverton 199 LordDyer 283. Pasce 29 Eliz. Sir James Crofts case by the Judges 32 E. 3 Cozinag 5. 3 Report Ratâ—… lifts Case Seldeni de successionibus apud Hebâ—…s cap 20. Comment on Littleton fo 5. 68 tit 3. 8 tit 1. de haeredibus ab intestato venienâ—… tibus Customs Normand c. descheancres Grotius de Jure belli ac Pacis lib. 2. cap. 7. Dyer 274 Grayes Courtneyes c. Com. Pleas Coron fo 141. Michelmas 1 Car. Cro. 3. part Caroons c. 32 Ed. 3. tit Cozinage 5. Ramseyes c. 15. Car. 11. in Com. Banc. Godfry and Dixons case Hill 16. Iac. in Bâ—…R Godbolt 275. De Natis ultra mare 25 Ed. 3. 2 Car. in the Dutchy in Stephens cause 16 Car. 1 Cro. 437. Bacons case Prowdes case of Kent