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
him on the face and gave him a push on the back and after this he was Registred for a Freeman This being performed the Servant having his head shaven purposely at that time received a Cap as a Token of Liberty Tertullian observes That at this time of their Manumission the Servants received from their Masters a white Garment a Gold Ring and a new Name added to their former By the Laws of England every Subject Born within the Kings Dominions is a Freeman of this Realm as appears by the Grand Charter Cap. 14. yea though he be a Bond-Slave to a Subject But a Stranger Born is no Free-man till the King have made him a Denizon in whose Power alone without the help of any other one may be made Free To be a Freeman of the Realm the place of Birth is held more considerable than the Quality of the Person Yet by the opinion of Hussey Chief Justice in 1 R. 3. fo 4. And in Calvins Case of the Post Nati it is held for Law That if Ambassadors of this Realm have Children Born in France or else where the Father and Mother being Natural Born Subjects the Children are Free of the Realm of England But if either the Father or the Mother of such Children were an Alien then are not those Children Free But the Law is conceived to be otherwise at this day The Statute de Natis ultra mare 25 E. 3. Cap. declares the Issue Born of an English-man upon an English-woman shall be a Denizon for upon the Construction of this Statute it has been adjudged more than once That if an English-man marry a Foreiner and has Issue by her Born beyond Seas the Issue is a Natural Born Subject IX Disfranchising by the Romans called Capitis diminutio was Three fold Maxima Media Minima the least degree was when the Censors pulled a Man from a higher Tribe down to a lower and less Honourable or when by any Censure they disabled a man from suffraging or giving his Voice in the publick Assemblies such as were thus in the last manner punished were termed Aerarii and in aerarios veluti quia omnia alia jura Civium Romanorum preterquam tributi aeris conferendi amiserunt Gellius relates That P. Scipio Nascica and M. Pompilius being Censors taking a view of the Roman Knights observed one of them to be mounted on a lean starvling Horse himself being exceeding fat whereupon they demanded the Reason why his Horse was so lean himself being so fat his Answer was Quoniam ego inquit me curro statius mens servus By the Ancient Laws of England and by the Great Charter no Freeman shall be taken or Imprisoned but by the Lawful Judgment of his Peers that is by Jury Peers for Peers ordinary Juries for others who are their Peers or by the Law of the Land which is always understood by due process of the Law and not the Law of the Land generally for otherwise that would comprehend Bond-men whom we call Villains who are excluded by the word Liber for such Bond-men might be Imprisoned at the pleasure of his Lord but a Free-man neither could nor can without a just Cause nor does the Priviledge extend to private Actions or Suits between Subject and Subject but even between the Sovereign and the Subject Hence it is that if a Peer of the Realm be Arraigned at the Suit of the King for a Murder he shall be tryed by his Peers that is by the Nobles But if he be appealed of Murder upon the prosecution of a Subject his Tryal shall be by an ordinary Jury of 12 Free-holders and as the Grand Charter did and does protect the Persons of Free-men so likewise their Free-hold For by the same Charter it is declared That the King or His Ministers shall out no man of his Free-hold without reasonable Judgment and so it was rul'd upon a Petition in Parliament setting forth that a Writ under the Privy Seal went to the Guardian of the Great Seal to cause Lands to be seized into the Kings Hands and that thereupon a Writ issued forth to the Escheater to seize against the form of the Great Charter upon debate of which the Party had Judgment to be restored the greatest and most Explanatory Act which succeeded in point of Confirmation was that of Edward the 3d. the words are That no Man of what Estate or Condition soever he be shall be put out of the Lands and Tenements nor taken or imprisoned nor dis-inherited nor put to death without he be brought to answer by due process of the Law that is by the Common Law 2. Diminutio media was an Exilement out of the City without the loss of ones Freedom the words of the Judgment or Sentence were Tibi aquae igni interdico 3. Diminutio maxima was the loss both of the City and the Freedom and by his Judgment or Sentence was obliged and limited to one peculiar Countrey all other places in general being forbidden him There was a Fourth kind of Banishment Disfranchising called relegatio which was the Exilement only for a season as that of Ovid's The Laws of England in this matter have some resemblance with those of the Romans for Bracton observes 4 Distinctions 1. Specialis hoc est interdictio talis Provinciae Civitatis Burgi aut Villae 2. Generalis Interdictio totius Regni aliquando est 3. Temporaria pro duobus tribus quatuor aut pluribus annis aut c. 4. Perpetua pro termino vitae exilium est aliquando ex arbitrio principis sicut in exiliando Duces Hertfordiae Norfolciae per Regem Richardum Secundum aliquando per Judicium Terrae ut fit in Casu Piers de Gaviston etiam in Casu Hugonis de le Spencer Junioris qui ambo fuerunt exilit ' per Judicium in Parliamento So likewise was that of the Banishment of the Earl of Clarendon who dyed beyond the Seas X. Abjuration was also a Legal Exile by the Judgment of the Common Law as also by the Statute Law and in the Statute of Westm the second Cap. 35. He which Ravishes a Ward and cannot render the Ward unmarried or the value of his Marriage must abjure the Realm and this is a General Exile And by the Statute made 31 Ed. 1. Butchers are to be abjured the Town if they offend the Fourth time in selling measled Flesh and this is a Special Banishment A man Exil'd does forfeit these things 1. Hee looseth thereby the Freedom and Liberty of the Nation out of which he is Exiled 2. He forfeits his freedom in the Burrough or City where he was free for he which forfeits the Freedom of the whole Realm forfeits his Freedom in every part 3. The Law accounts him as one dead for his Heir may enter and so may his Wife enter into her own Lands and may sue
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
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
that to be when the matter in controversie is tam quod merita quâ—…m quod modum praecedendi not doubtful for in doubtful matters the presumption is ever for the Judge or Court But the Reprisal must be grounded on a wrong Judgement given in matters not doubtful which might have been redressed one way or other either by the ordinary or extraordinary power of the Country or place and the which was apparently perverted or deny'd But if the matter be doubtful then otherwise for in causes dubious or difficult there is a presumption always that Justice was truly administred by them who were duely elected to publick Judgements XI And yet in this later case some who are of opinion that if the cause were dubious and if the Judgement were against apparent right the Stranger oppressed is let into his satisfaction and the reason is because the Judge's authority is not the same over Forraigners as over Subjects for the reason above mentioned If an English Merchant shall prosecute a Suit in the Ordinary Courts of Law beyond Seas and Sentence or Judgement shall pass against him from which he appeals to the Supream Judgement and there the first Judgement or Sentence is affirmed though the Complainant hath received a Judgement against the real right of the cause yet this will be no cause for Letters of Reprisal though perhaps it may occasion Letters of Request if there be strong circumstances for the same to have a rehearing of the cause But if an English Man shall recover a debt there and then the Officer having the debtor in custody will wilfully let the Prisoner escape and then become insolvent the same may perhaps occasion Reprisal In England if a Forraigner brings an Action personal against I S. and the matter is found special or general and the Party prays Judgement and the Court refuses it and then the Deffendant dyes and with him the Action the nature of it being such the Party is here without remedy the same may occasion Letters of Reprisals if it be accompained with those circumstances that evince an apparent denyal of Justice i. e. as putting it off from Term to Term without cause An English Man pursues his right in the legal Courts beyond Seas and the Military Governor opposes the prosecution and by force conveys away the debtor and his Goods the Sentence or Judgement is obtained its ultimate end being Execution being thus frustrated may occasion Letters of Reprisal XII Persons murdered spoiled or otherwise dampnify'd in hostile manner in the Territories or places belonging to that King to whom Letters of Request are issued forth if no satisfaction be returned Letters of Reprisal may issue forth and the Parties petitioners are not in such cases compelled to ressort to the Ordinary prosecution But the Prince of that Country against whom the same are awarded must repair the damage out of his or their Estates who committed the injuries and if that proves deficient it must then fall as a common debt on his Country XIII Such Letters of Request generally allot a time certain for damages to be repaired if not Reprisals to issue forth XIV It is not the place of any Mans Nativity but his domicil not of his Origination but of his Habitation that â—…bjects him to Reprise The Law doth not consider so much where he was Born as where he lives not so much where he came into the World as where he improves the World If therefore Letters of Reprisal should be awarded against the Subjects of the Duke of Florence and a Native of Florence but denizied or Naturalized in England should have a Ship on a Voyage for Leighorn if a caption should be made the same is not lawful nor can the same be made prise XV. Nor doth it any where appear that Reprisals can be granted on misfortunes happenning to Persons or their Goods residing or being in Forraign parts in time of War there for if any misfortune happens or is occasioned to their effects or to their Persons then they must be contented to sit down under the losse it being their own faults they would not fly or relinquish the place when they fore-saw the Country was subject to the spoil of the Souldiers and devastation of the Conqueror The factions of the Guelfs and Gibellins in Florence warring against each other The Guelfs obtaining the Victory and thrusting the Gibellins out of it after they had taken the City Domum cujusdam Hugonis de Papi in hoc Regno Angliae demorantae diruerunt and plundred his Goods therein qui Hugo supplicavit Dom. Regi ut inde Itali Mercatores of that faction and City then in England emendas hic sibi facerent upon which adjudicatum fuit quod dicti Mercatores dicto Hugoni satisfaciant pro damnis susceptis destructione domus suae upon which a Writ of error was brought and the Judgement was reversed in these words Quod non est consuetudo Angliae de aliqua transgressione facta in aliena Regione tempore Guerrae vel alio modo consideratum est quod totus processus ejus effectus provocentur c. XVI By right for so it is now called of rendring like for like there are many Persons exempted and those whose Persons are so priviledged have also protection for their Goods some by the Laws of Nations some by the Civil Law others by the Common Law among which Embassadors by the Laws of Nations their retinue and Goods are exempt coming from him who awarded the Reprise the Laws of Nations not only providing for the Dignity of him that sends but likewise the security going and coming of him that is sent Nor against those that travel for Religion nor on Students Schollars or their Books nor on Women or Children by the Civil Law nor those that travel through a Country staying but a little while there By the Canon Law Ecclesiastical Persons are expresly exempt from Reprisals A Merchant of another place then that against which Reprisals are granted albeit the Factor of such Goods were of that place are not Subject to Reprisals XVII Ships driven into Port by storm or stress of weather have an exemption from the Law of Reprisals according to the Jus commune but by the Law of England otherwise unless expresly provided for in the Writ or Commission But if such Ship flyes from his own Country to avoid confiscation or some other fault and is driven in by stress off she may then become subject to be prize But it is not lawful to make seizure in any Ports but in his who awarded the Reprisal or his against whom the same issued for the Ports of other Princes or States the Peace of them are to be maintained XVIII Ships attaqued by those that have Letters of Reprise and refused to be yielded up may be assaulted and entered and though it may fall out not by intention but by accident that some of those that so
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
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
shall commit any wilful or negligent fault by reason of which the Master Owners or the Ship answers damage to the Merchant an Action lyes well against him XI If a Marriner takes up moneys or Cloaths and the same is entred in the Purser's Book by the Custome Maritime it is a discount or a receipt of so much of their wages as the same amounts to and in an Action brought by them for their wages the same shall be allowed and is not accounted mutual the one to bring his Action for the cloaths and the other for his wages XII A Master of a Ship may give moderate and due Correction to his Marriners and if they bring an Action against him he may justifie the same at the Common Law and by the Law of Oleron if a Marriner shall assault the Master he is to pay 5. Solz or lose his hand Marriners after they have unladed the Ship if they demand their wages and there be any intention of their departure the Master may detain a reasonable proportion of the same till they bring back the Ship or give caution to serve out the whole Voyage XIII Barratry of the Marriners is a Disease so Epidemical a shipboard that it is very rare for a master be his Industry never so great to prevent a Span of Villany a shipboard soon spreads out to a Cloud for no other cause but of that circular encouragement that one knavish Marriner gives to another However the Law does in such cases impute offences and faults committed by them to be negligences in the Master and were it otherwise the Merchant would be in a very dangerous condition The Reasons why they ought to be responsible are for that the Marriners are of his own choosing and under his Correction and Government and know no other Superiour a shipboard but himself and if they are faulty he may correct and punish them and justifie the same by Law and likewise if the fact is apparently proved against them may re-imburse himself out of their wages XIV And therefore in all cases wheresoever the Merchants loads aboard any Goods or Merchandize if they be lost imbezled or any otherwise damnified he must be responsible for them for the very lading them aboard makes him lyable and that as well by the Common Law as the Law Maritime XV. Nay if his Marriners go with the Ship Boat to the Key or Wharfe to fetch Goods a Shipboard if once they have taken charge of them the Master becomes immediately responsible if they steal lose damnifie or imbezle them XVI The antient'st Record that is found extant is that in Edw. the Third's time where one brought an Action of Trespass against the Master for the imbezlement by his Marriners of 22 pieces of Gold Bowe Sheaf of Arrowes Sword and other things And adjudged he should answer And for that the same is or may be of great moment accept of a Transcript of the Record as the same was certified into Chancery in order to have it sent into the Kings-Bench to enable the Plaintiff to bring an Action upon the same Judgment in any place in England where he could meet with the Defendant VEnerabili in Christo Patri DnÌ„o I. Dei gratia Wygorn Episcopo DnÌ„i Regis Ed. CancellarÌ„ vel eius locum tenenti sui humiles devoti Robertus Gyene Major Uille Bristol Edwardus Blanckett IohÌ„es de Castle-acre Ballivi libertatem ejusdem Uille salutem cum Omnia reverentia honore De tenori Recordi ê“cessus loquelle que fuit coram nobis in CurÌ„ Domini Regis ibm sine braevi inter HenrÌ„ Pilk Iurdanum Uenere Magistrum navis vocÌ„ la Graciane de Bayone in plito transgressÌ„ ê“ut ê‘ breve DnÌ„i Regis nobis directum fuit vos inde certificatur sub sigillis nrÌ„is vobis si placet mitimus in hijs scriptis Ad placit Tols tentÌ„ ibm die Martis ê“x post Festum Epiphaniae Domini anno Regni Regis nunc 24. HenrÌ„ Pilk querÌ„ opt se. versus Iurdanum Uenore Magistrum navis vocatÌ„ la Graciane de Bayone de plito transgressÌ„ ê‘ pl c. unde querÌ„ quod secundum legem consuetudinem de OLERON unusquisque Magister navis tenetur respondere de quacunque transgrÌ„ ê‘ servientes suos in eadem fact IohÌ„es de Rule Fartolet de Fornes Servientes pÌ„dicti Iurdani Magisteri navis pÌ„dicte die MercurÌ„ ê“x ' ante Festum Omnium Sanctorum Anno Regui pÌ„dicti Regis Ed. 23. in Mari iuxta Britan in eadem navi de Iohanne de CornubÌ„ servientÌ„ pÌ„dictÌ„ HenrÌ„ 22. libtÌ„ in auro arcus Sagit glad al bona catalla ad valencÌ„ 40 l. ceperunt asportaverunt injuste c. ad dampnum pÌ„dictÌ„ HenrÌ„ 60 l. si pÌ„dictus Iurdanus hoc velit dedicere pÌ„dictÌ„ HenrÌ„ paratus est verificare c. Et pÌ„dictus Iurdanus venit dicit qd lex de Oleron talis est qd si aliqua bona catalla Magistro alicujus navis liberata sunt custodiend unde idem Magister ê“ eisdem vel ê“ aliqua alia re in eadem navi facta manucapÌ„ illo modo MagrÌ„ navis tenetur respondere non alio modo Et suê‘ hoc petit Iudicium Et pÌ„dict HenrÌ„ dicit qd unusquisque Magister navis tenetur respondere d oe quacunque transgressione ê‘ servientes suos in navi sua fact petit Iudicium simlrÌ„ Et suê‘ hoc pÌ„dicte ê‘tes habent diem hic die Sabati ê“xÌ„ post Festum scÌ„i Hillarij ê“xÌ„ futurÌ„ ad audiend judicium suum c. Ad quem diem pdicte ê‘tes venerunt petierunt Iudicium suum c. Et recitat Recordo processu pÌ„dictis in plena Curia Coram Majore Ballivis alijs probis hominibus Uille Magistris Marinarijs visum fuit Curie quod unusquisque Magister navis tenetur respondere de quacunque transgressione ê‘ servientes suos in navi sua facta Ideo consideratum est quod pÌ„dict HenrÌ„ recuperet dampna sua 40 l. vsus pÌ„dict Iurdanum ê‘ CurÌ„ taâ—at nichilominus idem Iurdanus transgressione pÌ„dicta in miÌ„a XVII The Master subject to answer damage is to be understood in all such cases where the Lading was brought aboard either by his consent or his Pursers for any other or such as shall be secretly brought in not being entred in the Purser's Book or in the Bills of Lading the Master is not obliged to see forth-coming unless it be such Goods as the parties bring into the Ship about them as cloaths money and the like as above those things being seldome entred yet most commonly are visible the Master by Law is responsible for XVIII So likewise if a Master forewarn a Passenger to keep his Goods and that he will no wayes take care of them and if they be lost or purloyned by the Crew he will not be obliged to see
gain ought to be bounded or otherwise left to the will of the Lender XV. Of Usura Maritima how reasonable the same stands at this day XVI Of Moneys advanced to a considerable profit called usufruit being both honest and honourable I. MOney is one of those things which they who want want all other things but words to reproach their bad Fortune But sometimes it is the policy even of Rags and Poverty it self to undervalue that which it cannot have and to convert that which it hath though never so mean into an esteem and then to lodge as much pride in a Tub as Alexander could in a Palace though it could not tempt him to a change of Condition Nil habet infaelix paupertas durius in se Quam quod ridiculos homines facit No wonder therefore seeing Rich men will be obstinate to hold to their advantages that deformed Poverty which mixes with them in the same frame as a shadow to set off their Colours the better would have the Rich to descend to them and that instead of setting out Moneys by way of Bottomery Usury and the like they would not have any such thing as money at all but would have all things reduced into a state as is afore mentioned It cannot be denyed but that we all live by the natural or intrinsique value of things but the way to come by them is by an Instrument of civil value which is Money instead of Community therefore we now have Commerce which Commercium is nothing else but Communio mercium but Communion must needs be by the means of another thing that may bear equal proportion on both sides which is Money onely But now let us hear and if possible satisfie the complaints that are made against it so impatiently Where there is great Luxury there must be likewise great Industry to maintain it and therefore the Industry of this Civil State must be greater than that which is in the simple state of Nature But what is there here too blame seeing Industry no more than Plenty is in it self a Sin II. It is the Answer of Envy or Ignorance Prima peregrinos obscaena pecunia mores inâ—…ulit Money is that say they which maintains the Trade and Credit of Vice if that were taken away we should look after nothing but necessaries which are virtuous it makes too nice inequalities and distances and is not significant enough in the best things for all the Money in the World is not really worth one penny loaf which is convertible into our Natures and Substances it serves onely to assure Fortune but not Virtue it is accepted as the measure of all things Natural Moral and Divine for Honour is nothing but ancient Riches and in Morals Virtus post nummos This in Religion breeds that root of all Evil Covetousness for in a simple state of Nature necessary things must needs be spent within a short time and the return of the Sun brings a new supply and a Treasure greater than the Indies Of which One makes this Observation That it was got in blood sayles home in a Sea of blood and never rests till it be laid out in blood This was that which was made the Price of Salvation even of the Blood of our Blessed Saviour 30 Pieces for that which was worth Thirty thousand Worlds but in the Religion of the first times Nullo violatus Jupiter auro as Juvenal hath it And if this had not been brought into the World we should not have so much to discount for at the day of Judgment Why therfore should that which is condemned to the obscurity of the Earth and lodg'd so near Hell now be made the price of all that which is above the Earth even a Solo usque Coelum Or why should we be excluded from the Gifts of Nature unless we have those of Fortune Is it not then more reasonable that Rich men lose this Instrument of Luxury than the Poor should lose the necessary means of their subsistence This is the Plea which is made in forma Pauperis Et de ipsa paupertate Most certain it is that neither the stupid simplicity of the Woods nor Poverty it self are any part of Virtue and therefore are not reckoned Blessings as Riches were to Solomon he who built Gods first Temple and put his Religion in lustre and as they likewise were to Numa from whom Money was called Nummus He likewise built the first Temple at Rome and kindled first the Vestal fire ferocem populum deorum metu mitigavit III. We know how God conversed with Abraham who was the first that had Money and made use of it to buy a Property It is true they with whom he inhabited called him a Prince but that was no argument to him to disown their properties but for the contrary lest they should think that Dominion or a right to things was founded in grace IV. But to come more close to the Question and to examine the reason and necessity of this measure Money is like a Law or Government which are all constituted by the same extream necessity therefore the counterfeiting or attempting to destroy any of these by private means is every where Treason Now this measure is two-fold either Natural or Civil or rather natural and the Instrument which expresses the natural by equal Permutation The natural measure is proportioned either by Want or Plenty In Want we consider whether the thing be useful or necessary things which are necessary are best but of least price as a Loaf of Bread is more necessary but infinitely cheaper than a Diamond One man hath Cloathes another man hath Leather those two possibly have no need one of another and therefore there will be no Permutation betwixt them but if one had need of another then he who were most prest would come to the price of the other And therefore Want or Plenty is the measure of estimating things and is the bond of Society whereby one man shews he is or may be useful to another and Nature hath so ordered it that no man is so Rich who hath not some need of the Poor and no man is so mean and abject but he may be some wayes useful to the Rich. V. The Civil Measure or rather Instrument whereby the Natural expresses it self is Money which hath but a feigned value and therefore it is sometimes higher and lower in esteem as men please which could not be if its value were natural which is unalterable If I have Cloath at such a price and you have Wines at the same price then we regarding the same price may make an equal Permutation Or if I give to you so many pieces of Gold for your Cloath at the same price the Sale is equal again whether it be an incovenience that in some Countries is sometimes at a higheer value than at another is not a consideration of this Discourse for the price of things themselves change more than
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