vel Bodun fundum aut profundum signet in quem navis fundum vel ipsam navem ejusque usum mutuo accepta est pecunia sed postea latius pro faenore nautico etiam usurpari caepit And the Money so taken up by the Master is done upon great extremity and that for the compleating of the Voyage when they are in distress and want in some Forreign parts and indeed such taking up is indeed in the nature of Mortgaging the Ship for le Neife oblige al payment de ceo c. And in the Instrument there is a Clause that expresses that the Ship is engaged for the performance of the same Moneys that are advanced are upon two Securities the one is on the bare Ship the other upon the person of the Borrower sometimes upon both The first is where a man takes up Moneys and obliges himself that if such a Ship shall arrive at such a Port then to repay perhaps double the sum lent but if the Ship happens to miscarry then nothing XIII So likewise some will take up Moneys the condition reciting Whereas there is such a Ship naming her bound to Amsterdam whereas such a man is Master whereas indeed there is no such Ship or Master in nature that if that Ship shall not arrive at such a place within 12 months the money agreed on to be paid shall be paid but if the Ship shall arrive then nothing The first of these is honourable and just according to the laudable practice among Maritime persons and though the advantage runs high as 20 30 nay sometimes 40 per Cent. without consideration of time for the Moneyes are to be paid within so many dayes after the Ships safe arrival yet in regard the Adventure is born by the Lender for if the Ship perishes the advancer loses the Lawes and Practice of all Maritime Countries allow of the same And therefore by the Common Law if an Action of Debt be brought on such an Instrument the Defendant cannot plead the Statute of Usury And so it was adjudged where one Sharpley had brought an Action of Debt on a Bond for Moneys taken up upon Bottomery The Defendant pleads the Statute of Usury and shewed that a certain Ship called the made a Voyage to Fish in New-found Land which Journey might be performed in eight months and the Plaintiff delivered 50 l. to the Defendant to pay 60 l. at the return of the Ship to D and if the said Ship by Leakage or Tempest should not return from Newfound-Land to D then the Defendent should pay the principal money and if the Ship never returned then nothing to be paid Upon Demurrer it was adjudged the same was not Usury for if the Ship had stayed at Newfound-Land 2. or 3. years yet at her return but 60 l. was to be paid and if she never returned then nothing The other advance which is upon a fictitious supposition of a Ship and Master where indeed there is no such in Nature is more unconscionable the same being the common practice that 's used amongst the Italians and now on this side the Water The same is as to internal Right unjust and cannot now be determined since it was not long since adjudged that such Contract was good according to the Common Law of this Realm and that on a Special Verdict XIV Most certain it is that the greater the danger is if there be a real adventure the greater may the profit be of the Moneys advanced * And so hath the same been the Opinion of Civilians and likewise some Divines though some seem to be of opinion That any profit or advantage ought to be made of Moneys so lent no more than of those that are advanced on simple loan and on the peril of the borrower However all or most of the Trading Nations of Christendome do at this day allow of the same as a matter most reasonable by reason of the contingency or hazard that the Lender runs and therefore such Moneys may be advanced several wayes and a profit may arise so that there runs a peril on the Lender There is likewise a second way of advancing of Moneys called Usura Maritima joyning the advanced moneys and the danger of the Sea together And this is obliging sometimes upon the Borrower's Ship Goods and Person The produce of which by agreement will advance sometimes 20 30 and sometimes 40. per Cent. As for Instance A private Gentleman has 1000 l. ready money lying by him and he has notice of an Ingenious Merchant that has good Credit beyond Seas and understands his business fully applyes himself to him and offers him 1000 l. to be laid out in such Commodities as the Merchant shall think convenient for that Port or Countrey the Borrower designs for and that he will bear the adventure of that Money during all that Voyage which he knowes may be accomplished within a year hereupon the Contract is agreed upon 6 per Cent is accounted for the Interest and 12 per Cent. for the Adventure outwards and 12 per Cent. for the goods homeward so that upon the return the Lender receives 30 per Cent. which amounts to 1300 l. The Lender in this case hath a good bargain no question Now let us see what advantage the Borrower hath 1. The Borrower prevents the taking up the like Sum at Interest which comes to 6. per Cent and Brocage which comes now in this Age thorough the generosity of the Merchant and Covetousness of the Serivener at 1. or 2. per Cent. more and then the same is let out but for 6. months and then the Scrivener inevitably at the 6. months end sends his Note that his Friend expects his Moneys to be yaid in so that to stop that gapp there must be Continuation which is at least one per Cent. more besides the obliging of Friends in Securities 2. The Assurance prevented which perhaps may come to between 5 and 20 per Cent. according as the Times are and common prudence will never suffer a Merchant to venture 2. parts of 3. parts of his Estate in one Bottome without assuring 3. As he shall not have occasion to Ensure so it may be a great occasion of preventing the common Obligation of his Ensuring of others the which in a generous Merchant in honour cannot be denyed the Premeo running pretty reasonable 4. It prevents the parties running the Risque and danger of the Seas Enemies or any other fatal loss and hath been a means to introduce a mans credit in a short time at lesser charge if not to put him in in a Condition not to be beholding to such a fair though chargeable means And this cannot be Usury by the Lawes of this Realm for the Risque and Danger that the Lender runs VI. There is also another way but that is both Honest and Honourable called Usufruite that is a Stock in a Company or Society which is perpetual
successive Claims and maintaining their Right to the adjacent Sea as appeared not long after by that Famous Accord made between Edward ths First and the French King Philip the Fair calling him to an account for Pyracies committed within the Brittish Seas the Submission of the Flemmings in open Parliament in the Second Edwards Reign and the Honour or Duty of the Flagg which the Politique King John had above Four hundred years since challenged by that Memorable Ordinance at Hasting there decreed to take place universally not barely as a Civility but as a Right to be paid cum debita reverentia and persons refusing to be assaulted and taken as Enemies the same not onely to be paid to whole Fleets bearing the Royal Standard but to those Ships of Priviledge that wear the Princes Ensigns or Colours of Service Nor was this barely a Decree written but nobly asserted by a Fleet of no less than 500 Sayl in a Voyage Royal of his wherein he sail'd for Ireland in his way commanding all Vessels which he met in the Eight circumfluent Seas to pay that Duty and Acknowledgment Nor was the Third Edward slow in following the steps of his wise Predecessors when he Equipp'd out a Fleet of no less than 700 though on another occasion with 200 of which he vanquished a Fleet of twice the number before Calais to the loss of 30000 French Nor did our victorious Conquerour of the Sepulchre the Great Richard the Second who in his return from the Holy Land want a Navy Royal to attend him home by the force of which he took and destroyed near 100 more Ships of the French And look we but into the mighty Actions of the succeeding Princes we shall find all that ever designed Empire but were Zealous in the encouragement of Navigation looking on that Axiom as undeniable Qui Mare tenet cum necesse esse rerum potiri and that without which the British Soveraignty is but an empty Title Nor ought alone the Praises of those great Monarchs whose mighty care had always been to preserve the Reputation of their Empire in their Maritime preparations to be remembred but also those of our Inhabitants who alwayes have been as Industrious to follow the encouragement of those Princes under whom they flourish't and who with no less Glory and timely application in Traffique did constantly follow the examples of those of Genoa Portugal Spaniards Castillians and Venetians whose Fame in matters of Commerce ought to be inrolled in letters of Gold since the Ages to come as well as present having been doubly obliged to their memory the third of which making use of a discontented Native of this Isle the Famous Columbus who prompted by that Genius that naturally follows a Native wise man discovered a New World in whose Expedition he fathomed unknown Paths and detected the Antillus Cuba and Jumaca c. and the Terra Firma of the American Shoare who taking his Conjectures from the spireing of certain Winds from the VVestern Points by strong impulse accompanied with that Philosophy he attained to concluded some Continent must needs be hid in those unknown Parts his Service being first offered to his Prince and refused he was soon after entertained purely on the faith of that Noble Princess Issabella of Spain who for 17000 Crowns for which she engaged her Jewels she received not long after as many Tuns of Treasure and to her Husband 's own use in Eight or Nine years time came above Fifteen hundred Thousand of Silver and Three hundred and sixty Tuns of Gold Thus Ingenuity encouraged though in one single Person hath occasioned Wonders and from a small Kingdom as Spain it hath since raised its head in a condition of bringing all those many Kingdomes and Vast Emensities of Earth which they possess under their protection putting them once on thoughts of no less than an Universal Monarchy We need onely mention Sebastian Chabott a Native of Bristol who discovered Florida and the Shoares of Virginia dedicated to that Virgin Princess Elizabeth Thorn Elliott Owen Gwyned Hawkins Cavendish Furbisher Davis Stadson Raleigh and the Incomparable Drake who was the first agreed Universally of any Mortal to whom God vouchsafed the stupendious Atchievement of Incompassing not this New World alone but New and Old together twice embraced by this Mighty Man who first making up to Nombre de Dios got sight with Tears of Joy of the Southern Seas the which in five years after he accomplished it passing through the Magellan Streights towards the other Indies and doubling the famous Promontory he circum-navigated the whole Earth Nor ought that truly worthy Captain Sir John Norborough be precluded from having place after the mighty Drake he having not long since passed and repassed the Magellan Streights by which that Worthy Person hath performed that Atchievement which was never yet done by any Mortal before To reckon up the particular Actions of John Oxenham a sharer in that mighty performance of Drake of his drawing his Vessel up to Land and covering the same with boughs passed the unknown paths of Land from Nombre de Dios to the South Sea and there building a Pinnace enters the Isle of Pearles and from the Spaniards takes a Treasure almost beyond credit of the indefatigable diligence of Willoughby Burroughs Chanceler Button Buffin Furbisher James Middleton Gilbert Cumberland who plowed up the North-East and North-West Cathaian and China passage of Jones and Smith whose Fortune and Courage was great in those Parts of Poole who found out the Whale Fishing of Captain Bennett the first discoverer of Cherry Island Gillian and of Pett and Jackman that passed the Vaigates Scythian Ices and the River of Ob as far as Nova Zembla nor of the Famous Davies who had penetrated to 86 degrees of latitude and almost set his foot on the Northern Pole Men whose Actions in the atchieving of discoveries and pointing out to places for an immense improvement in Navigation and Commerce ought to be inrolled in the Temple of Fame as Monuments to succeeding Ages of their Mighty and Laborious Travails and Industry The Consideration of all which gave some sparks of encouragement to the writing the ensuing Tract especially when reflecting that among all Nations there is a Common Law which governs the mighty thing of Navigation and Commerce I had some impulses more then ordinary to induce me to the same especially at a time when Navigation and Commerce were never from the erection by Divine instinct that Mighty Proto-Type the Ark to this present Age in greater esteem then now and by which we have found vast and great easements and discharges from those Royal and Just Rights and Dues which ever were and of Old justly due to those that Govern'd this Empire Therefore ought by all wayes and means to be fortified and encouraged be it by whatsoever Art Science or thing that does in the least point out towards the same Nor was it then
it concerns the King and his publique Ministers to protect them and procure their protection in forreign Kingdoms in the nature of an Office and Negotiation of State therefore their Quality is to Mediate and prosecute for them or any one of them at the Councel Table which is as it were a Court of State but when they come to settled Courts which does and must observe essential formes of proceedings scil processus legitimos they must be governed by them And therefore in the Case of Don Diego Serviento de Acuna Ambassador Leger for the King of Spain who libelled in the Admiral Court as Procurator General for all his Masters Subjects against one Jolliff and Tucker and Sir Richard Bingley for two Ships and their lading of divers kinds of the Goods of the Subjects of the King of Spain generally and not naming of them adduct ad Port de Munster in the Preface of the Libel generally against them all and then proceeds and charges them severally thus That Jolliff and Tucker Captain Pyrate in alto Mare bellico dictas Naves aggressi sunt per vim violentiam took them and that they were adductae in partes Hiberniae and that they came to the hands of Sir Richard Bingley and he converted them to his own use not saying where and refuseth to render them being required it was there held that a Prohibition should go for the matter is tryable meerly at the Common Law and that such a Procuration was not good Don Alonso de Valesce Ambassador from the Catholique King attached Tobaccoes at Land here which one Corvero a Subject to the King of Spain brought hither and the Ambassador by his Libel supposed to belong to his Master as Goods confiscated as all others his Goods were Sir John Watts the Plaintiff in the suggestion pray'd a Prohibition which was granted accordingly for the property of Goods here at Land must be tryed by the Common Law however the property be guided and it was likewise rul'd that if any Subject of a Forreign Prince bring Goods into this Kingdom though they were confiscate before the property shall not be questioned but at the Common Law Don Alfonso vers Corvero Mich. 9 Jac. Hob. 212. Hill 9 Jac. upon the like Libell by Don Pedro Surega Ambassador for Spain XII Whether an Ambassador hath Jurisdiction over his own Family and whether his House be a Sanctuary for all that fly into it depends upon the concession of him with whom he resides for this belongs not to the Law of Nations †and it hath been seen that an Ambassador hath inflicted punishment on his own Servants and Vassals as the Muscovite did here in England but for Fugitives that fly into their Houses nay their own Servants if they have greatly offended cannot be drawn forth by force without a demand and refusal which then done it is then become as an offence in them XIII Most certain by the Civil Law the movable Goods of an Ambassador which are accounted an accession to his Person cannot be seized on neither as a pledge nor for payment of a debt nor by Order or Execution of Judgement no nor by the King or States leave where he resides as some conceiue for all coaction ought to be far from an Ambassador as well that which toucheth his necessaries as his Person that he may have full security if therefore he hath contracted any debt he is to be called upon kindly and if he refuses then Letters of Request are to go to his Master so that at last that course may be taken with him as with Debtors in another Territory to some this may seem hard yet Kings who cannot be compelled want not creditors but the Lord Coke seems to be of another opinion for as to Contracts and Debts that be good Jure Gentium he must answer here XIV If an Ambassador commits any private outrage against one of the Princes Subjects with whom he resides unless it be to defend the Dignity of his Charge or of his Master it has been conceived by some not to be justifiable before the Prince with whom he resides for say they there is a great difference between the Dignity and Authority of the Prince in the Countrey of another Soveraign for say they he may well retain his Dignity but not his Authority usually injuries of that nature being done they have admitted debates at a Councel of State where the Soveraign with whom the Minister of Stare hath resided being satisfied that reparation ought to be made to the party injured he hath been ordered or at least requested to comply with the same XV. But on the other hand if any private outrage be committed by the Subjects of that Prince with whom he resides upon his Person the offenders may be subjected to punishment and the Queen of Sweden having made the Incomparable Grotius after he had escaped by Providence out of Prison by a greater from his Country-Men her Ambassador for that Crown with Lewis the 13 th with whom he resided at Paris coming one day from St. Germans the Secretary of Ceremonies being in the Coach with him it chanced that in one place as they passed a great number of People were in the way seeing of an execution his Postillion and Coach-man driving boldly through the company the Archers then attending the execution with short pieces concerned somewhat angerly that the execution was disturbed made after the Coach shot his Postillion and Coach-man and through the Coach even through his hat the matter coming to be examined the King ordered 3 or 4 of them to be hang'd but that Good Man first pardoned them himself and then obtained the King's XVI The Republique of Venice imployeth generally more Ambassadors abroad then any other State and they are as other Princes be Ordinary and Extraordinary the Commission of the Ordinary continueth for 3 years but he which resides at Constantinople is not call'd Ambassador but Bailio residing there perpetually and that Republique allowes him a greater provision to support his Grandeur then to any other and by the Laws of Venice whatsoever he expends is allowed him upon his accounts without any examination the which no other of their publique Ministers of State have like priviledge By the Laws of Venice there can be no Extraordinary Ambassador imploy'd unless they have been Ambassadors formerly and upon their return are strickly examined of their comportment in their Legation and are to discover what Presents they have received from the Prince or State to whom they are sent the concealment of which is of a dangerous consequence Nor may any of their Ambassadors receive any preferment from any other State during their Legation The Patriarch of Aquilia dyed and Hermolao Barbaio being there Ambassador for that Republique the Pope conferred on him that Ecclesiastical Dignity and made him a Cardinal which being known at Venice notwithstanding he was a Person of great desert
an Action as a Feme sole 4. He shall forfeit those Lands which he shall purchase in the Realm during his Banishment for he during his Banishment is as much disabled to purchase as an Alien for fit alienigena by his Banishment and he is observed to be in a worse Condition than an Alien for he is marked with Indignatio principis 'T is true he cannot forfeit neither Title of Honour nor Knighthood nor the Lands he had before Exile unless there be special Sentence or Judgment as that of the Spencers If the Father be in Exile this hinders not the Freedom of the Son for the same is not a thing descendable for should it be so then the Banishmens of the Father would make a Forfeiture of the Freedom but the Son has this Freedom by his own Birth as a Purchase and not by the death of his Father by descent Like the Case where J. S. hath many Children and then he confesseth himself a Villain to J. D. in Court of Record yet his Children formerly Born are Free-men and no Villains the Reason is because they were Free by their own Births but the Inheritance is Inthralled because it is to come to the Heir by descent XI A Free-man of a City or Burrough may be made divers ways as my Lord Cooke observes 1. By Service 2. By Birth by being the Son of a Free-man 3. By Purchase or Redemption At Bristol by Marriage Sir John Davies in his Irish Reports observes the same for Law St. Paul was born at Tarsus in Cicilia which was under the obedience of the Romans by vertue of which he challenged the priviledge of a Roman Citizen but it was accounted no more than a National Freedom like that of Calvin who claimed the general Freedom of an English-man being born in Scotland but under the obedience of the King of England but that Challenge made not St. Paul Free of the Private Customs Priviledges and Franchises of Rome no more than Calvins Birth made him a Free Citizen of London to the particular Customs of that City The King by his Letters Patents cannot make one a Free-man of London yet he may thereby make him a Free-man of his Kingdom If one be Born in a City of Parents that are not Free the Child hereby is no Citizen by Birth and if one be born of Free Parents out of the place of Priviledges as London c. he yet is a Free-man by Birth yet in the Charter Granted to Yarmouth the words were concessimus Burgensibus de magna Yarmutha de Villa praedict ' Oriundis that they should have such and such Liberties So that Special words may alter the Case London had many Royal Franchises granted them from time to time and were often by former Kings successively confirmed nor wanted they a share when the great Charter was granted to have their ancient liberties secured nor were the succeeding Princes slack in their Royal grants and confirmations but especially Richard the Second who in Parliament granted and confirmed to them all their ancient customes and liberties with this clause Licet usi non fuerint vel abusi fuerint and notwithstanding any Statute to the contrary amongst the number of their many Priviledges the freedom of the same was accounted of no small importance since in divers Parliaments it was very much aimed at and endeavoured to be impaired but at last they obtained a most gracious and Royal Confirmation in Parliament of their ancient liberties amongst which it is declared that no Merchant being a Stranger to the Liberty of the said City should sell any Commodities within the Liberty of the said City to other Merchant-Strangers nor that such Merchant-Stranger should buy of anyother Merchant-Stranger such Merchandize within the Liberty of the said City without forfeiture thereof saving that any Person Lord Knight c. may buy within the Liberties of any Merchant-Stranger Merchandizes in gross for their own use so that they do not sell them again to any other And as this City by Custom may pre-clude any Person not being free of the same to sell in such manner upon such pain so any other City which are Burroughs or Cities by prescription within this Realm may have the like Custom and the goods sould or bought by such may be subjected to forfeiture but the same cannot be good by Charter or Grant A compleat Free-man is such a one as hath challenged his freedom and taken the Free-mans Oath and is admitted into the Society and Fellowship of the Free-men Citizens and Burgesses otherwise he hath but a bare right to his freedom CHAP. II. Of Aliens as in relation to their Estates real and personal I. Of an Alien his ability and disability in the taking and enjoying of Estates real and personal II. Of his capacity in purchasing and disability to transfer by an hereditary descent III. Of the rules of descents according to the Laws of several Countreys IV. Of descents according to the rules of the Common Law of England lineal and collateral V. Of Impediments in one that is not the medius antecessor VI. Of Impediments in one that is the medius antecessor lineal and collateral VII Of the Statute of Natis ultra Mare and of issues born beyond the Seas VIII The Lord Cokes opinion that if an Allien has issue two Sons Denizons the one purchases Lands and dyes the other cannot inherit them debated and refuted IX Of Foreign births which do not create a disability X. Of Aliens not disabled by Law to bring either real or personal actions XI Of Office that must entitle the King to an Aliens Estate XII Of some particular immunities and other matters relating to an Alien AN Alien is one born in a strange Countrey under the obedience of a strange Prince and State and out of the legeance of the King of England and can have no real or personal action for or concerning Lands and therefore if he purchase Lands Tenements and Hereditaments to him and his Heirs albeit he can have no Heir yet he is of capacity to take a fee-simple but not to hold for the King upon Office found shall have it by his Prerogative So it is if he purchase Lands and dyes the Law doth cast the free-hold and inheritance upon the King But if he purchase or take a Lease for years of a House or Ware-house which is for the accommodating him as a Merchant-stranger whose Prince or State is in League with ours there he may hold the same for that the same is incident to Commerce And in that case if he departs and relinquishes the Realm the King shall have the same so it is if he be no Merchant The like Law is if he takes a Lease of Meadows Lands Woods or Pastures the King shall have the same for the Law provides him nothing but a habitation to Trade and traffique in as a Merchant II. Though he may take