commonly proportioned according to the offence committed Sometimes they were easy of which sort were those which only brand the Souldier with disgrace others were those that came heavy on the Person or Body to the first belonged a shameful discharging or casheering a Mariner or Souldier from the Army and generally lookt on as a matter of great disgrace which punishment remains at this day for offences as well in England as in most parts A second was by stopping of their Pay such Souldiers which suffered this kind of mulct were said to be Aere diruti for that Aes illud diruebatur in fiscum non in Militis sacculum the which is and may at this day be inflicted especially on such as shall wilfully spoil their Arms and the like sort of offences A third was a Sentence enjoyn'd on a Souldier to resign up his Spear for as those which had atchieved any Noble Act were for their greater Honour Hasta pura donati so others for their greater disgrace were inforc'd to resign up that Military Weapon of Honour A fourth sort of punishment was that the whole Cohort which had lost their Banners or Standards either in the Fields or at Sea were inforc'd to eat nothing but Barley bread being deprived of their allowance in Wheat and every Centurion in that Cohort had his Souldiers belt or girdle taken from him which was no less disgrace among them then the degrading among us one of the Order of the Garter for petty faults they generally made them stand bare-footed before the Generall 's Pavilion with long poles of 10 foot in length in their hands and sometimes in the sight of the other Souldiers to walk up and down with turfes on their necks sometimes carrying a beam like a fork upon their shoulders round the Town the last of their punishments was the opening of a Vein or letting them blood in one of their arms which generally was inflicted on them who were too hot and bold The great Judgments were to be beaten with rods which was generally inflicted on those who had not discharged their Office in the sending about that Table called Tessera wherein the Watch-word was written or those who had itoln any thing from the Camp or that had forsaken to keep Watch or those that had born any false witness against their Fellows or had abused their Bodies by Women or those that had been punished thrice for the same fault sometimes they were sold for bond-Slaves beheaded and hang'd But the last which was in their mutinies the punishment fell either to Lots as the tenth twentieth and sometimes the hundredth Man who were punished with Cudgelling and with these punishments those in England have a very near affinity as cleansing the Ship loosing pay ducking in the Water beaten at the Capsons head hoisted up the main yard end with a shovel at their back hang'd and shot to death and the like XXVI The Admiral may grant Commissions to inferior Vice-Admirals or Commanders in chief of any Squadron of Ships to assemble Court Martials consisting of Commanders and Captains for the Tryal and Execution of any of the offences or misdemeanours which shall be committed at Sea but if one be attainted before them the same works no corruption of Blood or forfeiture of Lands nor can they try any Person that is not in actual Service and pay in His Majesty's Fleet and Ships of War But in no case where there is Sentence of death can the execution of the same be without leave of the Lord Admirall if the same be committed within the narrow Seas yet this does not extend to mutiny for there in that case the party may be executed presently All offences committed in any voyage beyond the narrow Seas where Sentence of death shall be given upon any of the aforesaid offences execution cannot be awarded nor done but by the Order of the Commader in chief of that Fleet or Squadron wherein Sentence of death was passed XXVII The Judge Advocate hath power given by the words of the Statut to administer an Oath in order to the Examination or Tryal of any of the offences mentioned in the Stat. of 13 Car. 2. Cap. 9. and in his absence the Court Marshall has power to appoint any other Person to administer an Oath to the same purpose This Statut enlarges not the power and and jurisdiction of the Admiral any further then only to the above mentioned offences in no case whatsoever but leaves his authority as it was before the making of this Statut. Nor does it give the Admiral any other or further power to enquire and punish any of the above-mentioned offences unless the same be done upon the main Sea or in Ships or Vessels being and hovering in the main stream of great Rivers only beneath the Bridges of the same Rivers nigh to the Seas within the jurisdiction of the Admiralty and in no other place whatsoever XXVIII As Souldiers and Mariners for the honour and safety of the Realm do expose dayly their lives and limbs so the Realm hath likewise provided for them in case they survive and should prove disabled or unfit for Service a reasonable and comfortable maintainance to keep them the which the Justices of the Peace have power yearly in their Easter Sessions to raise by way of a Taxe for a weekly relief of maimed Souldiers and Mariners The maimed Souldier or Mariner must repair to the Treasurer of the County where he was prest if he be able to travel if he was not then to the Treasurer of the County where he was born or where he last dwelt by the space of three Years but if he proves unable to travel then to the Treasurer of the County where he lands He must have a Certificate under the chief Commander or of his Captain containing the particulars of his hurt and Services The allowances to one not having been an Officer is not to exceed ten pound per annum Under a Lievtenant 15 A Lievtenant 20. Till the Mariner arrives at his proper Treasurer they are to be relieved from Treasurer to Treasurer and when they are provided for if any of them shall go a begging or couterfeit Certificats they shall suffer as common rogues and loose their Pensions Over and above this provision His Sacred Majesty hath provided a further supplyment for his maimed Mariners and Souldiers disabled in the Serviceâ—… which is issued out of the Chest at Chatham and constantly and duely pay'd them and for his Commanders Officers and others that served aboard he of his Royal Bounty hath given to those that bear the character of War and purchase the same by their fidelity and valour a pious Bounty called Smart-Money over and above their Pay XXIX The wisedom of the Romans was mightily to be commended in giving of Triumphs to their Generals after their returns of which they had various sorts but the greatest was when the General rid
was vouched where a Spanish Mere chant before the King and his Councel in Camera Scaccarii brought a Bill against divers English-Men there in setting forth quod depradatus spoliatus fuit upon the Sea juxta partes Britanniae per quendam Virum bellicosum de Britannia de quadam Navi and of divers Merchandizes therein which were brought into England and came into the hands of divers English-Men naming them and so had process against them who came in and pleaded that in regard this depradation was done by a Stranger and not by the Subjects of the King and therefore they ought not to be punished in regard that the Stat. of 31 H. 6. Cap. 4. gives restitution by the Chancellor in Cancellaria sibi vocato uno Judice de uno Banco vel altero and by the Stat. of 27 Ed. 3. Ca. 13. that the restitution may be made in such a case upon proof made by the Chancellor himself without any Judge and upon that case it was resolved Quod quisquis extraneus c. who brings his Bill upon this Stat. to have restitution debet probari quod tempore captionis fuit de amicitia Domini Regis and also quod ipse qui eum coeperit spoliavit fuit etiam sub obedientia Regis vel de amicitia Domini Regis sive Principis quaerentis tempore spoliationis non inimicus Domini Regis sive Principis quaerentis quia si fuerit inimicus sic coeperit bona tunc non fuit spoliatio nec depradatio sed legalis captio pro ut quilibet inimicus capit super unum alterum the Judgement of which case was held to be Law and thereupon the Judges delivered their opinions that the Morocco Ambassador could not be proceeded against as a Pyrat 16 In the time of Philippe the Second of Spain the Venetian Ambassador in Madrid protecting one Bodovario a Venetian an offender that fled into his house and denying the Corigidor or Justices to enter his house where the Ambassador stood armed to withstand them upon complaint made the Ambassador was removed unto another house until they had searched and found the offendor then conducting back the Ambassador with all due respect a Guard was set upon his house to stay the fury of the enraged People the Ambassador complaining to the King he remitted it to the Supream Councel they justified the proceedings condemning Bodavario to loose his head and other the Ambassadors Servants to the all which the King turned to Banishment and to satisfy the most Serene Republique sent the whole process to Inego d' Mendoza his Ambassador at Venice and declaring by a publique Ordinance unto that State and all other Princes That in case his Ambassador should commit any offence unworthily and disagreeing to their qualities and professions of Ambassadors they should not enjoy the Priviledge of those Officers but would refer them to be judged by the Laws of that Prince or States where they then resided and where they had injured it was a great and a noble Saying 17 In the Year 1568 Don Guhernon d'Espes was ordered to keep his house in London for sending scandalous Letters to the Duke de Alica unsealed and in 1586 Don Bernardino de Mendoza was restrained first and after commanded away 8 The manner of proceeding against them has been conceived necessary to be that some of the Chief Secretaries of State were sent to the Ambassadors and by way of advice that understanding that the Common People having received notice of c. And that they cannot but conceive a just fear of uncivil carriage towards their Excellencies or their followers if any the least incitement should arise and therefore for quiet of the State and securing of their Persons they were bound in love and respect to their Excellencies to restrain as well themselves as followers untill a further course be taken by legal examination where the aspersion began the same being in their opinions the best and the only way to prevent the danger c. Sometimes if the Parliament be sitting the King acquaints the Lords and then departing who having had conference with the Commons conclude of a Message to be sent to the Ambassadors either by requiring an account of the matter or confining of them the Persons to be sent the two Speakers of both Houses with some convenient number of either having their Maces or Ensigns of Offices born before them to the Ambassadors Gates and then forborn and then requested speech with them let them know that a relation being made that day in open Parliament of c. they were deputed from both Houses the Great Councel of the Kingdom to the which by the fundamental Laws of this Nation the Chief care of the Kings safety and the Publique Peace and quiet of the Realm is committed and that they were no less the High-Court of Justice or Supersedeas to all others for the examining and punishing all attempts of so High a nature as c. if it carry truth and having executed their Commission concluded that the Houses to show that reverence which they bear unto the dignity of his Master by their Message they two that never are imployed but to the King alone were at that time sent c. and if the Houses shall upon reâ—…n of their Speakers conceive their answer if it be a matter that requires it are such as may justly deserve thâ—… being confined they then make an address to his 〈◊〉 to confine them to their Houses restraining their â—…ure untill the Prince or State whom they repreâ—… 〈◊〉 â—…cquainted with their offence And so it was 〈◊〉 â—…n 44 H. 3. to the Popes Legates in England and 28 E. 1. XI If a Foraign Ambassadors being a Prorex commits here any crime which is contra jus Gentium as Treason Felony Adultery or any other crime which is against the Law of Nations he looseth the Priviledge and dignity of an Ambassador as unworthy of so high a Place and may be punished here as any other private alien and not to be remanded to his Soveraign but of courtesy X. But if any thing be malum prohibitum by any Act of Parliament private Law or Custom of this Realm which is not malum in se jure Gentium nor contra jus Gentium an Ambassador residing here shall not be bound by any of them but otherwise it is of the Subjects of either Kingdom for if a French Merchant or Spanish Merchant trades or imports any prohibited Goods he must at his peril observe the Laws of England and so it was adjudged Pasc. 33 Eliz. in the Exchequer Tomlinson qui tam versus Henry de Vale â—…l upon the Stat. of 19 H. 7. Ca. 21. but if an Ambassador imports any prohibited Goods econtra In Causes Civil XI The Office of an Ambassador does not include a procreation private but publique for the King his Master nor for any several Subject otherwise then as
Neighbours Lands better then himself However this is a clear Case for all Planters that those wastes or asperi montes which the Natives make no use of nor can receive any dammage by their being possess'd by others may lawfully be impropriated by them IV. But admitting that Planters may appropriate a Plantation for their living whether such may dispose of the same by Will we supposing the Possessor having no Heir for that he might seem to have but a usufructuary possession till a descent had been cast which then perhaps may turn the same into a right Without all controversie the very immediate possessing and planting creates a right against all but he that hath Empire there and that very right the party in his life time might have actually transferred over to another Now though the devise in the will operates not till after his death yet the gift is made during his life according as the French have it Se despouiller avant que de s'en aller coucher that is man first puts off his cloaths and then goes to bed V. Again Persons having arrived in those Territories and planted but before they have reapt the fruits of their labour necessity is found within their Huts and a supply of things for the support of humane life is wanting whether such may seek the means of subsistance by the Laws of nature and in case of refusal after request force them from their Neighbour Planter Surely that which is necessary for any natural subsistance and necessary to another belongs justly to me unless I have merited to loose the life which I seek to preserve There were a defect in Gods creating our natures such as they are if he did not provide means to uphold their beings according to the natural faculties which he hath given them A good Mother divides her bread among her Children as a morsel may come to each let us therefore judge this case by those rules of Justice by which we judge other eases if a Father in his Will pass by a Child or names him but upon false causes leaves him nothing he is notwithstanding by the equity of the Civil Law admitted to a Childs part a legitima and may form his action contra Testamentum inofficiosum Men are all a Kiâ—… and we derive one from another and to let others settle in our places who may justly expect as much due to them for their natural subsistance as was to those who before went out of the World to make place for them yea though they assign them nothing at their departure Man were of all living Creatures most miserable if he might not during this life have that measure which God would not have an Ox defrauded of thus hath every Dung-hill-fly a right to live and to remain insectile which besides existence hath sence and may not justly be deprived of that its chiefest felicity unless it be importunate to a nobler Creature VI. 'T is very true that no man can pretend to share in the sweat of another mans browes or that the pains and wasting of another mans life should be for the maintenance of any but his own nay though it be granted that those Neighbour Planters who being settled before us and having acquired either by industry or lawful donation the fruits of other mens labours and consequently must enjoy more plenty then a new Comer or Planter yet all that they possess is not properly theirs for if another by extream necessity be perishing and they have above what they can consume in a natural way then they have no fuller a property in that plenty then Stewards have and for this regard they are so called in Scripture The Earth still is the Lords and the fulness of it it is his for he made it of his own matter and for the fashion of it used not our aidâ—… Yea 't is his Sun which still produces and his Clouds which drop fatness We can only pretend the Contribution of a little pains for that which is our natural share so that in plain reason we may not expect to be otherwise qualified then Stewards for all that which is not probably necessary for our own subsistance or for theirs who subsist only by us Wherefore Lazarus ready to perish not by fault but by misfortune had taken Dives his Crums contrary to his will yet he had not sinned no more then he who takes something which the Lord or Master hath given him though the Steward contradict it But if it so happen that both the Planters are in pari necessitate then melior est conditio possidentis or as Saint Paul's words are when he excited the Churches Charity and Alms for the relief of the distressed Members of Christ Not quoth he that ye should be streightened and they abound VII The will of those who first consented mutually to divide the Earth into particular Possessions was certainly such as receded as little as might be from natural equity for written Laws are as near as possible may be to be interpreted by that and therefore in cases of such extremities we are not without examples of taking the goods of one to supply the necessities of many And therefore at Sea if Provisions begin to fail in a Ship every one may be forced to bring out openly what he laid in for his passage in particular so a Ship at Sea having instress of Weather spent her Sails Cordage and Anchors meeting other Vessels at Sea may take a supply of such as shall be wanting but yet governed according to St. Paul's words So that such taking straightens not the other Ship So when the Sea breaks in upon a Countrey we may digg in the next mans grounds to make a banck without staying for the owners permission yea tear down any mans hedge or fence when the Common passage is stopped For in such cases of necessity humane Laws as is mentioned afore do not so much permit as expound their natural equity and that which Men give to those who are so innocently distressed who borrow life only from the shadows of death Et pist asse tempestate tuentur is not properly a Charity to them as a duty and if he be a Christian that gives perhaps he doth more Charity to himself then to the Receiver VIII The reason of this Christian Charity or Communion is as far above the natural as Christ himself was above Nature this requires an equal beating of all pulses that as Fellow-Members we have a Homogenial sence and palpitation we are to divide a Cruze of Oil and a few handfuls of meal with one of Christs Flock with an abandoned Creature and what can be in more extremity than a poor Planter in a strange Place destitute for the present of the supports of humane life And surely the violation of this Jus Charitatis is no less then theft in those who having extended fortunes never defalcate a Gibeonites Crust perhaps for a
abuses are up on such an account legally tollerated In omnibus rebus vetustas ipsa plurimum habet dignitatis ita ut Massalienses quorum praestantissima creditur fuâ—…ssa Respublica laudentur to nomine quod gladio ad puniendos sontes usi sint eodem a condita Urbe quo indicarent in minimis quoque rebus antiquae consuetudinis momenta servanda Proxime enim ad demum accidit Antiquitas aeternitatis quadam imagine Grot. de Antiq. Rep. Batav in Praefat. Ceteris mortalibus in eo stare consilia quid sibi conducere putent Principium diversam esse sortem quibus praecipua rerum ad summam dirigenda Tacitus Annal. l. 4. †Vide the Earl of Shastsbury's Speech to the Parliament 1672. Si fama tua videtur necessaria rectam muneris tui administrationem non potest condonare Lessius de Inst. l. 2. c. 11. dub 24. §. 26. Selden Mare Clausum l. 2. cap. 24. Fitzherberts protection tit 46. Seld. ibidem c. 23. Co. 4. Iustit fo 142. Vide part of the Record in fo 54. And the case 29 Eliz. in B. R. Sir John Constables Leonard 3. part 72 the reason of the opinion there is mistaken for the right unto the Sea ariseth not from the possession of the shores for the Sea and Land make distinct Territories and by the Laws of England the Land is called the Realm but the Sea the Dominion and as the loss of one Province doth not infer that the Prince must resign up the rest so the loss of the Land Territory doth not by concomitancy argue the loss of the adjacent Seas I is no more necessary that every Sea Town should command 100 miles at Sea then that each City should command 100 miles by Land Julius Paucius de Dom. maris Adriatici Anno Domini 1600. Anno Domini 1609. Anno Domini 1636. Will. Fulbecks Pandects of the Law of Nations c. 4. The King against Sir John Byron Bridgman fo 23 24 25. Vide postea in Chap. of Customs June 30. anno 1598. Selden lib. 1. cap. 11. Alber. Gentil Hisp. Advocat l. 1. c. 14. vide Mr. Secretary Cookes Letter to Sir William Boswell April 16 1635. * The fight of the Dutch with the Spanish Fleet in the 1639. Downes Scilicet hoc factum Hollan dorum est contra justitiam omnem pro certo contra reverentiam qua partibus territoriis debitur alienis Alâ—… Gent. Hisp. Advocat l. 1. 3. 14. Anno Domini 1552. JunÌ„e 2 and 3. About the 8 of â—…g 1653 †Offered to Queen Eliz. Cette-cy entre autres merite bien une consideration speciale Que la conjunctiondesdits Pays de Hollande Zelande Frize des Villes de l'Escluz Ostende in Flandres avec les Royaumes de vostre Majesté emporte soit l'Empire de la Grande Mer Oceane par consequent une asseurance Felicité perpetuelle pour les Subjects de vostre Serenissime Majesté John Stow Supplement to Holling shed An. Dom. 1585. Vide Sir Walter Raleigh lib. 5. cap. 2. §. 2 3. Enna aut malo aut necessario facinere retenta Livy lib. 24. * F. de Navibus non excus C. l. 11 tit 3. and Pekius on the same Law Quidni enim inquit Cicero quando scire detremento sue potest alteri communiâ—…t in iis quâ—… sunt accipienti utilia danta non molesta 1. de Offic. 1. * De expeditione Cyri. 10 Ed. m. 16. 12. * 23 Ed. 1. Rott 77. in the Exchequer 12 E. 3. in the Black-Book of the Admiralty p. 26 and 27. 6 Joh. m. 11. 9. Joh. m. 3. 24. Ed. 2. m. 17. 11 R. 2. m. 13. Rot. Franc. De Offic. Admiral Angliae per Roughton Artic. 10. The Black-Book of the Admiralty fo 28 29 157 158. 15. R. 2. c. 3. Cro. Arg. of Hampdens C. called the Ship money C. fo 79 to 100. Spelmanni Cnocil Tom. fo 520 521. Spelmanni fo 528 expeditio Navalis Rot. Scotiae 10 E. 3. m. 2. to 17. and then to 34. intus dors to 28. 1 Eliz. cap. 13. Vide Stat 16. 17 Car. I. c. 15. 2 3 P. M. C. 16. Vide Sir Henry Spelmans Gloss. in tit Admirâ—… Lambert Archeion tit Admiral fo 42. Exodus 21. 6. Inst. de Jure person §. servi autem Gell. l. 2. C. 7. Tacitus Co. 〈◊〉 Inflit. fo 358. 2 E. 1. Memb. 18. Rott Pat. 1 E. 1. m. 17. Ro. sin 31 E. 〈◊〉 num 44. Ro. pat 17 H 6. Ro. Cla. indors Vide the Case of Bates in Lanes Reports fo 4. Co. 6. part Case of Souldier Vide the 1. Institutes fo 71. And the Stat. of which provides punishment for those Watermen which shall hide themselves does evidence what the common Law was as to the right of pressing which certainly would never punish those whom they could not press †2 Aprilis 49 E. 3. in the Black-Book of the Admiralty 32 33 34 Art and fo 69. Art 10. The Black-Book of the Admir f. 17. Lamb. inter Leg. Edovardi f. 139. 13 Car. 2. cap. 9. †Non solis ducibâ—…s aliisque pâ—…tentibus innasci solet atque immorari bene agendi propositum sed cuique volenti licet honestum est ejus qua vivit Reâ—…publicae mali commoreri publicas utilitates pro suis viribus promoveri Vide Grotius l. 2. c. 20. †That is as to entitle him to Clergy and so it was ruled by all the Judges in B. R. M. 23 Car. 2. in the Case of one found specially at Surrey Assizes before Mr. Justice Twisden who slew the adulteror in the very act Vide August Civit. Dei citatum C quicunque causa 23 qu. 8. An. 25. Eliz. Co. Litt. f. 74. Code Justin. tit quando liceat unicuique It was in force in England till the beginning of the Reign of Edw. 3ds time Co. Inst 128. B. 13 H. 4. fo 4 5. 37 H. 6. fo 3. Jugurtha taken by his Father in Law Bocchus and delivered to the Romans Charles the 7th of France at a personal Treaty with Duke of Orleans 〈◊〉 slew the Duke though a Soveraign Prince Meyer l. 15. Phil. Comines lib. 4. c. 9 10. * As that between Edward the 4th and Lewis the 11th in the Territories of the Duke of Burgundy Vide Aemilius Paulus in History of France and Ferron his supply of the same of the Life of the Duke of Orleans afterwards Lewis 12th upon the failer of issue male of Charles the 8th Julius Ferretus de legatis Principium de 〈◊〉 side 〈◊〉 †The Leagues between the Crown of France and Spain are commonly between Kings and Kings Realm and Realm and Man and Man of their subjects and hath in time past been lookâ—… upon to be the firmest of Alliances Phil. Comines lib. 2. cap. 8. 9 E. 4. 2. a. The League then made with the Scots and likewise between Ed. 4th and the Duke of Burgundy Phil. Comin lib. 3. c. 6. * Rot. Pat. 4.