Flagg and lower his Top-Sail at his first approach to the French Fleet and to salute the Admiral of France with Guns who was to return the said salute by Guns also as was usual when the Dutch and English Fleet did meet Only in this the right of the Flagg of England differs from that claimed by the French for if there had been a failer on the part of the Dutch of paying that respect to the French the same would have amounted to no more but a breach of the League but the not striking to the King of Englands Flagg is open Rebellion and the Article does so signify for it is there mentioned as a Right and Soveraignty not a bare Dominion only like that of Jerusalem to the King of Spain XII The Duty of the Flagg that hath been so constantly pay'd to our Ancestors is of such advantage to the continuing the renown of this Nation that it serveth to imprint new reverence in Forreigners that render it and adds new courage to those of our Sea Men that exact it and since we know how much it imports a State that it be reverenced abroad and that Repute is the principal support of any Government it equally influenceth the Subjects at Home and Forreign Allies abroad And as there is no Nation in the World more tender of their Honour then the English so none more impatiently tollerate the diminution thereof with what resentments would not only the more generous and Noble but even the Popular and vulgar Sea Men detest this or any succeeding Age should they remit or loose that Regality those acknowledgements which their Predecessors with so much Glory asserted and the neglect whereof was alwaies punished as open Rebellion the indignity of such an Action being sufficient to enflame the whole Kingdom the consideration of which besides his Sacred Majesties own Royal inclination to the same and his evident testimonies never to abandon a ceremony of so high a concernment witness the exposing the one half of his own heart his Royal Highness in the asserting the same with such Fleets and in such Battles that no Age or time cannot shew a memorial of the like are causes sufficient to create in us new flames of love to those Royal Patriots and Defenders of our Rights Private Persons move in another sphear and act by other Rules then Soveraign Powers the regard of credit with them may oftentimes yield to those of utility or other motives the Publique receives little injury thereby or is their wisdom questioned for such punctilio's if they relinquish them for other Imoluments or Peace sake but Soveraigns cannot so transact their subjects the People participate in their Honour and indignities they have a property a direct Right in the former Soveraignes cannot alienate or suffer their Honours to be impaired because it is not really theirs it appertains to the Nation universally and they are all effectually injured by such transactions either because the indignity doth really extend to them or because the Government and Authority is thereupon weakned and prejudiced which is the greatest of Civil detriments that can befall a People though ordinarily they are not aware thereof As Prudence doth thus distinguish betwixt the demeanor of Private and Publique Persons so doth Charity it self for though the Gospel precepts do oblidge particular Persons to bear injuries and contumelies with patience and to surrender even the Coat as well as the Cloak yet is not this so to be construed as if even Private Christians were to yield up their Civil Rights to every insolent that would incroach upon and usurp them or that they were to deprive themselves of those Reparations which the Law and Government affords them neither is it so to be understood as if the Civil Magistrate in Christendom might not secure himself of that obedience and reverence which is due unto dignity but bear the Sword in vain XIII This being the value which this Nation did alwaies place upon the Right of the Flagg the which they never did regard it only as a Civility and Respect but as a principal Testimony of the unquestionable Right of this Nation to the Dominion and superiority of the adjacent Seas acknowledged generally by all the Neighbour States and Princes of Europe and must be pay'd and ackowledged by all Princes in the World that shall be or pass on the same The Maritime Dominion by the Laws of England were alwaies accounted the Four Seas such as are born thereon are not Aliens and to be within them is to be within the Legeance of the King and Realm of England The Records in the daies of Edward the 3d. and Henry the 5th proclaim it that those Kings and their Progenitors had ever been Lords of the Seas and amongst those many great Instances of proving the Soveraignty of the same is that famous Record of Edward the first and Phillip the Fair of France in which the Procurators of most Nations Bordering upon the Sea thoroughout Europe as the Genoeses Catalonians Almaines Zelanders Hollanders Freislanders Danes and Norwygians besides others under the Dominion of the Roman German Empire where all joyntly declare That the Kings of England by right of the said Kingdom from time to time whereof there is no memorial to the contrary have béen in peaceable possession of the Soveraign Lordship of the Seas of England and of the â—…es within the same with power of making and establishing Laws Statutes and Prohibitions of Arms and of Ships otherwise furnished then Merchant Men use to be and of taking surety and affording safe-guard in all cases where néed shall require and of ordering all things necessary for the maintaining of Peace Right and Equity among all manner of People as well of other Dominions as their own passing through the said Seas and the Soveraign Guard thereof By which it plainly appears That the King of England had then been in peaceable possession of the said Dominion by immemorial prescription that the Soveraignty belongeth unto them not because they were Domini utriusque ripas when they had both England and Normandy and were Lords of both shores for Edward the first at that time had not Normandy but that it is inseparably appendant and annexed to the Kingdom of England our Kings being Superior Lords of the said Seas by reason as the very Record mentions of the said Kingdom and since that the Soveraignty of the Sea did alwaies appertain unto the English King not in any other Right then that of the Kingdom of England no Prince or Republique ought or can doubt the Tittle by which our present claim is deduced 't is in right of Britannia that the same is challenged 't was in that right the Romans held it the claim justified Ed. 3. and his Rose Noble though there are other reasons regarding to the Lancastrian Line which yield a Colour for the use of the Port-cullis in the Roal Banners of England
digni sunt qui Navium detrimentum in aliquibus perficiunt notum esse cupimus quicunque aliquam ex Navibus per quampiam inertiam vel incuriam vell negligentiam corruperit tamen recuperabilis sit is Navis corruptelam vel fracturam ejusdem per solidam prius recuperet Regique deinde eaque pro ejusdem munitionis fractura sibimet pertenent rite persolvat Most certain it is that the Kings of England have in all Ages by their Writs and Patents commanded not only the Admiral but the Wardens of the Cinque Ports and others to arrest and provide Ships of War and other Vessels and impress and provide Masters of Ships Sea Men Mariners and all other necessary Tackle Arms and provisions for Ships for the defense of the Sea and the Realm against forreign Enemies or for transporting of Armies paying their freight if not bound there by tenure as well as to elect and provide all sorts of Souldiers Carpenters and others Officers to be assistants in their several Expeditions But Firshermen or Mariners pressed for the Service are not to be imploy'd as Souldiers but only as Mariners unless it be in casâ—…s of great necessity or bound thereunto by tenure Custom or Covenant And Water-Men that shall withdraw themselves in time of pressing shall suffer a fortnights imprisonment and be prohibited to row on the Thames V. The reason why the Admirals had such power given them was because they being sometimes called Capitanei and Gubernatores Flotarum they had their ordering and Governing of the Ships of War and the raising and fitting up such Ships for the Navies as they thought fit other times called Custodes Maritimarum partium their duty being to provide all Naval provisions as well to supply the Kings Navies occasions as to gratify another of the Kings Friends when distress should constrain them to touch in his Ports that his Subjects might receive the like retaliation again they were called Capitanei Nautarum Marinellorum as in reference for the deciding all differences amongst those in the Kings service and punishing of such as transgressed and as the place was great so the power was large especially in all things belonging to the Navy-Royall in which they had the Supream rule and Government in all things belonging to it He sate formerly in the Kings House and there kept his Court as the French Admirals do at this day at the Marble-Table in the Kings House at Paris It is lawful for every Man to addict and yield up himself to whom he pleaseth as appears both out of the Hebrew Law and Roman Law why then may not any people being at their own dispose give up themselves to their Prince or Soveraign so as to transcribe the right of commanding their aide and help as often as need shall require it is not here inquired what may be presumed in a doubtful case but what may be done in point of right most certain such a power may well be done and that grounded on great reason first if the Common-wealth should happen to be invaded by such a one as seeks not only the subversion of the Government but the destruction of the people and they can find no other way to preserve themselves but that the supream power should be vested with such such a Prerogative as to inforce or presse the Inhabitants to serve in Armes in the defence of the same and the contempt of which to punish or if they should be opprest with want and that supplies of provisions can no waies be had but by compelling another by force to exhibite the common offices of humanity to a Nation in whose Territories a famine rages that the Inhabitants should on such extraordinary occasions be compelled by force to serve in Armes And this Dominion may be obtained several waies either by a voluntary resignation to a Conqueror as they of Capua to the Romanes Our Land the Temples of our Gods all Divine and humane things we yield up into your hands O ye Conscript Fathers again Freedom may be granted to all by a Conqueror except Mariners which should in cases of necessity be excepted or that some Prince who will not suffer any Mariner to go out of his Dominions without subjecting themselves to such a reasonable command and the Majority of Nations on such grounds may abdicate from a part of them the entire Freedom of that member Nor are their examples of this kind wanting the Germans are every one Master of his owne house but are almost on every occasion subject to their Lords especially in their Goods The Irish Cosherers which were reprehendinations when the Chief Lord and his retinue came to his Tenants House and fed upon their provisions till they were spent all being solely at their devotion And as to the Sea the King of Britain may at this day restrain Merchants or Mariners to pass out of the Realm without licence and the various tenures that are introduced which is presumed were since the Conquest were no other but the will of the Conqueror for the right is not measured by the excellency of this or that form but by the will VII And though it hath been conceived by some that the King cannot presse Men to serve in his Wars giving their reason that of old he was to be served either by those that held by tenure those that covenanted by Indenture to provide Men or those who contracted with the Kings Officers for wages and entered into pay or those that were in Prison for the Kings debts but that only extended to those Wars that were by Land not one word in all those acts or Mr. Rolls that any waies mention the least of Mariners and yet what vast Fleets were in those daies but on the other hand it hath been alwaies accustomed to presse such sort of Men for the Naval Expeditions the antient records that mentions such Persons subject to presse by Law is that of 49 E. 3. commonly called The Inquisition of Queenborrough wherein it was expresly in charge amongst others to inquire of those Mariners that were pressed for the Kings Service and deserted the same So likewise by those other Articles translated by Roughton it is expresse in charge to the Jury to present those that being prest to serve brake the Kings Arrest in order to their punishment and in those daies it was esteem'd an high offence and the Oath which the Jury then took being impanelled was this This here see My Lord the Admiral that I Ionathan Nash shall well and truly enquire for our Lord the King and well and truly at this time then serve at this Court of th' Admiralty present at moch as I have acknowleche or may have by information of eny of my fellows of all mane Articles or circunstances that touchen the Court of the Admirate and Law of the Sea the which shall be grate to me at this time and I thereupon sworne or
made of the Danes Goods in his Ship the Dane afterwards coming into England and having intelligence of the matter prosecutedthe Fisherman in the Admiralty and although Ignoramus was found yet they there detained him upon which a Habeas corpus was prayed but denyed by My Lord Coke Chief Justice for no other reason but because the truth of the matter was opened which gave the Court cause to supect him of Pyracy otherwise if he had moved barely upon the Ignoramus found quod nota Pasch. 13 Jac. in B. R. the King vers Marsh Bulstrod 3. part fo 27. CHAP. V. The Right of the Flagg as to the acknowledging the Dominion of the British Seas I. Considerations general as in reference to the same II. Whether Princes may have an exclusive property in the Sea III. That such an exclusive Dominion may be and proved IV. Of the Sea whether capable of Division as the Land general V. Considerations general as in reference to Maritime Cities touching Sea Dominion VI. Of the Sea by reason of its instability whether capable of subjection VI. Of the Dominion of the British Sea asserted long before and ever since the Conquest of this Isle by the Romanes VIII The duty of the Flagg but a consecutive acknowledgement of that right and of the Ordinance of Hastings declaring that Customary obeysance IX Considerations had on some Treaties in reference to the asserting the duty of the Flagg X. Of the extent how far that duty is required and payable XI Of the duty of the Flagg not a bare Honourary salute but a Right XIII Of the importance and value of the same as well in Nations Forraign as in England XIII Of the duty of the Flagg not regarded as a civility but commanded as a duty XIV Of the importance of that acknowledgement I. AFter the Writings of the Illustrious Selden certainly it 's impossible to find any Prince or Republique or single Person indued with reason or sence that doubts the Dominion of the British Sea to be intirely subject to that Imperial Diadem or the duty or right of the Flagg which indeed is but a consecutive acknowledgment of that antient Superiority yet there has not been wanting some who though they have not questioned the former have highly disputed the latter But there are some fatal periods amongst our Northern Regions when the Inhabitants do become so brutal and prejudicate that no obligation of Reason Prudence Conscience or Religion-can prevail over their passions especially if they become the devoted mercinaries of an implacable Faction in opposition to all that can be called either just or honourable we need not reap up the carriage of that late insolent Son of a Tallow Chandler whose deportments made him no less insupportable at Home then he was amongst Forreign Princes the testimonies of his greatest parts and abilities being no other then monuments of his malice and hatred to this Nation and records of his own folly But Princes are not to be wrangled out of their antient Rights and Regalities by the subtil argument of Wit and Sophistry nor are they to be supplanted or overthrown by malice or Arms so long as God and Good Men will assist in which His Sacred Majesty did not want when he asserted his Right with the Blood and lives of so many thousands that fell in the dispute II. That Princes may have an exclusive property in the Soveraignty of the several parts of the Sea and in the passage Fishing and shores is so evidently true by way of fact as no Man that is not desperatly impudent can deny it the considerations of the general practise in all Maritime Countries the necessity of Order in mutual Commerce and the Safety of Mens persons Goods and lives hath taught even the most Barbarous Nations to know by the Light of Human reason that Laws are as equally necessary for the Government and preservation of the Sea as those that negotiate and trade on the firm Land and that to make Laws and to give them the Life of Execution must of necessity require a Supream Authority for to leave every part of the Sea and shores to an Arbitrary and promiscuous use with a correcting and securing power in case of wrong or danger is to make Men with the like condition of the Fishes where the greater devour and swallow the less And though the Sea is as a High-way and common to all yet it is as other High-waies by Lands or great Rivers are which though Common and Free are not to be usurped by private Persons to their own entire service but remain to the use of every one not that their Freedom is such as that they should be without protection or Government of some Prince or Republique but rather not exclude the same for the true Ensign of liberty and freedom is protection from those that maintain it in liberty IV. And as the Sea is capable of protection and Government so is the same no less then the Land subject to be divided amongst Men and appropriated to Cities and Potentats which long since was ordained of God as a thing most natural whence it was that Aristotle when he said That unto Maritime Cities the Sea is the Territory because from thence they take their sustenance and defence a thing which cannot be unless part of it might be appropriated in the like manner as the Land is which is divided betwixt Cities and Governments not by equal parts or according to their greatness but according as they are able to Rule Govern and defend them Berne is not the greatest City of Switzerland yet he hath as large Territory as all the rest of the twelve Cantons put togetether The Cities of Noremberg and Genoa are very rich and great yet their Territories hardly exceed their Walls and Venice the Mistress and Queen of the Mediterranian was known for many years to be without any manner of possession in the firme Land V. Again on the Sea certain Cities of great force have possessed large quantities thereof others of little force have been contented with the next Waters Neitheir are there wanting examples of such notwithstanding they are Maritime yet having fertile Lands lying on the back of them have been contented therewith without ever attempting to gain any Sea Dominion others who being awed by by their more mighty Neighbours have been constrained to forbear any such attempt for which two causes a City or Republique though it be Maritime yet it may remain without any possession of the Sea God hath instituted Principalities for the maintenance of Justice to the benefit of Mankind which is necessary to be executed as well by Sea as by Land Saint Paul saith that for this cause there were due to Princes Customs and Contributions It would be a great absurdity to praise the well Government and defence of the Land and to condemn that of the Sea nor doth it follow because of the vastness of the Sea that it is
not possible to be governed and protected but that proceeds from a defect in Mankind for Deserts though part of Kingdoms are impossible to be governed and protected witness the many Deserts of Africk and the immense vastities of the New World VI. As it is a gift of God that a Land by the Laws and publique power be ruled protected and Governed so the same happens to the Sea and those are deceived by a gross equivocation who aver that the Land by reason of its stability ought to be subjected but not the Sea for being an unconstant Element no more then Air forasmuch as they intend by the Sea and the Air all the parts of the fluid Elements it is a most certain thing that they cannot be brought under subjection and Government because whilst a Man serves himself with any one part of them the other escapes out of his power but this chanceth also to Rivers which cannot be detained but one is said to rule over a Sea or River it is understood not of the Element but of the Scite where they are placed the Water of the Adriatique and British Seas continually runs out thereof and yet is the same Sea as the Tiber Poe Rhine Thames or Severne are the same Rivers they were a thousand years since and this is that that is subject to Princes by way of Protection and Government Again it would seem ridiculous if any Man would assert that the Sea ought to be left without Protection so that any one might do therein well or ill robbing spoiling and making it unnavigable or whatsoever should seem fitting in their eyes from all which it is apparent that the Sea ought to be governed by those by whom it most properly appertains by the Divine disposition VII When Julius Caesar first undertook the Invasion of this Isle he summoned the Neighbouring Galls to inform him of the Shores Ports Havens and other things convenient that might acelerate his intended Conquest but from them nothing could be had they answering All commerce and traffick and visiting their Ports was interdicted to all Nations before license had nor could any but Merchants visit the same and then had they places assigned them whether they should come nor was this Dominion that the Britains then used commanded without a Naval Force the sight of which when Caesar saw he preferred them before those of the Romans for upon that occasion it was that Caesar having seen those Auxiliary Squadrons which the Britains sent the Gauls in their Expeditions against the Romans took occasion to find out that warlike people whose bare auxiliary aide shook the Flower of the Roman Squadrons And when the Romans became Conqueroues of this Isle the same Right or Dominion was during all their time supported and maintained when they sailed round their new atcheived Conquests in the time of Domitian Agricola giving terrour to all the neighbouring Nations But when that Mighty Empire became subject to fate and this Nation by the continual supply of Men which went out of the Kingdom to fill up the contingencies of the Roman Legions we became at last so enfeebled as to render us a prey to the Saxon which Empire when having settled peace with their Danish Neighbours and quieted their own home bred quarrells and having reduced the several petty Kingdoms of their Heptarchy under one Diadem they forgot not to assume their antient Right and Dominion of the Seas as did the most noble Edgar who kept no less a number then 400 Sail of Ships to vindicate and ascertain his Dominion giving protection to the peaceable and punishment to the offender nor did his Successors Etheldred Canutus Edmund and those that followed of the Danish Race any waies wave relinquish or loose that Royalty but obsequiously maintained the same down to the Conqueror and from him since for some upwards of 12 hundred years in a quiet and peaceable possession To mention the Antient Commissions and exercise of this Soveraign power Safe-conducts Writs of seizure Arrests Records of Grants and Licences to pass through the Sea and to fish Parliament Rolls and the like would make a Volum in a word if Right of Prescription succession of inheritance continual claim matter of fact consent of History and Confessions even from the mouths and pens of Adversaries be of any moment to the asserting of a Tittle his Sacred Majesty may be presumed to have as good a Tittle to that as the most absolutest Monarch this day on Earth hath to what ever he can claim or does enjoy VIII Now the duty of the Flagg is no more but a consecutive acknowledging of that Right and Dominion of the British Seas not as a bare Honorary Salute or Ceremony but as an absolute sign of the right and Soveraignty of those Seas where they are oblidged to strike Sail are in him to whose Flagg the Vail and pay that duty to and in substance is no more but that the King grants a generall licence for Ships to pass through his Seas that are his Friends paying that obeysance and duty like those services when Lords grant out Estates reserving a Rose or pepper Corn the value of which is not regarded but the rememberance and acknowledging their Benefactors right and Dominion That this hath been an Antient Custom alwaies waiting on that Soveraignty appears by that memorable Record upwards of 400 years since made where it is declared by King John what the Antient Custom was in these words That if a Lievtenant in any Uoyage being ordained by Common Councel of the Kingdom do encounter upon the Sea any Ships or Uessels laden or unladen that will not strike vail and their Bonets at the Commandment of the Lievtenant of the King but will fight against them of the Fleet that if they can be taken they be reputed as Enemies and their Ships Uessels and Goods taken and forfeited as the Goods of Enemies although the Masters or Possessors of the same would come afterwards and alledge that they are the Ships Uessels and Goods of those that are Friends to our Lord the King and that the Common People in the same be chastised by imprisonment of their Bodyes for their Rebellion by discretion Thus this Immemorial Custom was by that prudent Prince affirmed the which hath been alwaies before and ever since without interruption by all Nations constantly pay'd to the Ships of War bearing the Royall Standard and other of his Majesties Ships wearing his Colours and Ensigns of Service he knowing that undoubted Maxim of State that Kingdoms are preserved by reputation which is as well their strongest support in Peace as their chiefest safety in time of War when once they grow dispised they are either subject to forreign invasions or domestique troubles the which if possible that Prince would have prevented but he lived when those Celestial Bodies which govern the action of Princes seem to frown on the most Virtuous and Wise. IX And as
Recovery some have held that the Defensive did not extend so far notwithstanding if there were no Treaty which had concerned this Conquest yet it would seem more reasonable to comprehend the Recovery in the defensive if it be general For as it hath for its end to preserve the Allie in his State and that to attain unto it the Forces must not only remain in the Countrey of the Allie to attend the Enemy but after denunciation and other acts of hostility done by the Enemy they must enter into his Country to the end to prevent him or divert him from attempting any thing against the Allie The Offensive being judged by the aggression â—…and not by that which follows by a stronger reason they ought to enter into the Countrey conquered from the Allie for the recovery thereof but excuses in this kind proceed from those who fail in their faith courage or means to recover Contribution is one of the main ingredients in a League and is of great difficulty to regulate It is made either in Men or Money the Men are entertained by all Parties or by him only that hath need or otherwise as the League is Henry the 8th made a League with Francis the French King against the Emperor Maximilian and Ferdinand for the Recovery of Millane which he did the protection of his Neighbours and Reduction of the Swisse from the Imperial side for which he employed the Bastard of Savoy the agreement was of reciprocal Succour of 10000 Men if the War were made by Land and of 6000 if it were made by Sea and in all other occasions the French King was bound to assist the King of England with 12000 Launces and the King of France with 10000 Foot at his charge that had need So where Contribution is concluded for Money there are difficulties that do arise from the Person or Place where it must be kept for to deliver it to the hand of the strongest is not safe for fear they shall not be able to call him to account to lay it in a weak Place were to oppose it to the attempt and force of the strongest or to him that shall first take Armes but it has been usual the summe has been advanced not till after the War begun XII Leagues concluded by the Deputies of the Confederates there sometimes falls out a Difficulty who shall ratify and declares himself first In the League which was made between Francis the first the Pope and the Princes of Italy the King refused to ratify until the Pope and Venetians had ratify'd before him and in that he so cunningly wrought that he procured the Colleagues to declare and begin the War whilst that he treated secretly for himself to the end he might make his Conditions with more advantage this he declared was for fear those Italian foxes should shew him the like XIII Leagues made for an Enterprise succeed seldom according to the hope of the Allies if the Enterprise be long for besides the preparations be long the opinions divers in the pursuit the resolutions inconstant the interests of Princes or States in a League may change with time or with the practise of him against whom they are in League in withdrawing some one of them or making him to suffer more losse then the rest for seeing himself ill defended or succoured by his Confederate and that he was in a greater danger to loose then his Companions he then studies to retire and to make his accord apart as did the Venetians with the Turks after the losse of Cypresse XIV The ordinary causes of the Rupture of Leagues are distrust jealousy as if one hath had conference with the Enemy without the consent of the rest if that which serveth for the safety of one diminish the safety of the other inconstaney variety cowardize division usurpation without the consent of the others So if he treats with the Enemy not comprehending the other Allies but as adherents as Lewis the 12th left the League of the Venetians for that they had made a Truce with him and had presumed to name him only as an Adherent by the opinion of Bryan that if all the Subjects of England would make War with a Confederate Prince or Republique in League with the King of England without the assent of the King of England that such a War was no breach of the League and upon the same reason was the resolutions of the Judges in the the Duke of Norfolk's Case where the Question was whether the Lord Herise and other Subjects of the King of Scots that without his assent had wasted and burnt divers Towns in England and proclaimed Enemies were Enemies in Law within Statut of 25 E. 3. the League being between the English and Scots and resolved they were and that the League remain'd XV. The Succours that one Confederate must afford another Confederate according to the Laws of Leagues against Confederate is of a great consequence Three Princes Allied the one makes War against the other and demands succours from the third in this case if the Treaties of Alliance be only for Friendship it is certain he is not bound to give any succours But if the Treaty carries an Offensive League he must succour the most antient allied by a precedent alliance If the precedent Alliances have been made both at one time he must succour him that is allied in all Offensive and Defensive Leagues but if the League be Offensive and Defensive of either side he ought not to succour either but he may mediate a Peace and cause the difference to be judged by the Common Allies which being propounded with a Declaration that the refuser or having once submitted will not yield to Judgment that he will succour the other as the Swede and Swiss upon severall occasions hath done notwithstanding in point of State in such occasions they usually ballance their Estate and looking more to safety then Justice they succour him who being enforc't may weaken the powerful who is more to be feared yet to unjust Wars there is no obligation then certainly he ought to be preferred who hath a just cause of War XVI By the Laws of Alliances Princes may aide particular and Common Allies if they be wronged by one of the Allies But he which is not comprehended in the Treaty of Alliance cannot be defended against him that is allied without breach of the Alliance therefore Mediation in such cases is the only hopes of ahe oppressed which not having its effect if the oppressed put themselves into the protection of the Mediator they then become in the nature of his Subjects and then that Prince is oblidged to their succour and defence even against his Allies and this is by natural right XVII By the Laws of Leagues though the Oath binds only the Person yet the Promise binds the successor for though some do hold that Leagues do depend upon the
dissembled or connived at or else the Ambassadour be commanded to depart the Realm and if the crime be cruel and publiquely mischievious the Ambassadors may be sent with Letters of Request to his Master to inflict punishment according to the offence So likewise in the precaution of a great mischief especially publique if there be no other remedy Ambassadors may be apprehended and executed and if they oppose by force of Arms they may be slain In the Bishop of Rosses Case An. 13 Eliz. the question was An Legatus qui rebellionem contra Principem ad quem Legatus concitat Legati Privilegiis gaudeat non ut hostis poenis subjaceat and it was resolved that he had lost the Priviledge of an Ambassador and was subject to punishment nor can Ambassadors be defended by the Law of Nations when they commit any thing against the State or Person of the Prince with whom they reside And why Ambassadors are in safety in their Enemies Countries and are to be spared when they commit offences is not so much for their own or Masters sake but because without them there will never be an end of hostility nor Peace after Wars neither is the Name or Person of an Ambassador so inviolable either in Peace or in time of War but there may be both a convenient time and a good occasion to punish them and this standing with the Laws of Nations VII The Signiory of Venice understanding that certain Traytors who had revealed their Secrets to the Turk were fled for protection into the House of the French Ambassador at Venice sent Officers to search the Ambassador's House but the Ambassador refusing them enterance the Senate commanded certain Cannon to be brought out of the Arsenal to beat down his House which when he saw planted he surrendred up the Traytors 1 The Ambassadors of Tarquins Morte affligendos Romani non judicarunt quanquam visi sunt ut hostium loco essent jus tamen Gentium voluit 2 The State of Rome though in case of most capital crimes exempted the Tribunes of the People from question during the Year of Office 3 The Ambassadors of the Protestants at the Councel of Trent though divulging there the Doctrine of the Church contrary to a Decree there enacted a crime equivalent to Treason yet stood they protected from any punishment It is generally consented by all the Civilians That Legis de jure Gentium indictum est eorum corpora salva sint propter necessitatem Legationis ac ne confundant jura commercii inter Principes 4 Viva the Popes Legates was restrained by Henry the Second for exercising a Power within his Realm not allowed or admitted of by the King in disquiet of the State and forced to swear not to act any thing in praejudicium Regis vel Regni 5 On the other hand it has been answered that they are by the Laws of Nations exempted from Regal Tryal all actions of one so quallified being made the act of his Master or those whom he represents until he or they disadvow and injuries of one Absolute Prince or State to another is factum hostilitatis and not Treason the immunity of whom Civilians collect as they do the rest of their grounds from the practise of the Roman State deducing their Arguments these examples The Fabii Ambassadors from Rome were turn'd safe from the Chades with demand of Justice against them only although they had been taken bearing Arms with the Ethurian their Enemies Titus Liv. 2. Dec. 6 King Edward the Second of England sent amongst others a French Gentleman Ambassador into France the King upon this arraigned him as a Traytor for serving the King of England as Ambassador who was his Enemy but the Queen procured his pardon 7 Henry the Third did the like to one of the Popes Ambassadors his Colleague flying the Realm secretly fearing timens pelli sui as the Records has it Edward the First restrained another of the Popes turbulent Embassadors untill he had as his progenitors had informed the Pope of the fault of his Minister and received satisfaction for the wrongs 8 Henry the Eighth commanded a French Ambassador to depart presently out of the Realm but because he was the professed enemy of the Seat of Rome 9 Lewis de Prat Ambassador for Charles the Fifth was commanded to his house for accusing falsly Cardinal Wolsey to have practised a breach between Henry the Eighth and his Master to make up the amity with the French King 1523. 10 Sir Michael Throgmorton by Charles the Nineth of France was so served for being too busie with the Prince of Condy his faction 11 The Popes Ambassador at Paris was arraigned for practising certain Treasons in France against the King in the Parliament of Paris and was there found guilty and ccommitted to Prison 12 Doctor Man in the Year 1567 was taken from his house at Madrit in Spain and put under a Guard to a straighter Lodging for breeding a scandal as the Condo Teri said in using by Warrant of his place the Religion of his Countrey although he alledged the like permitted to Guzman de Silva their Ambassador in England and to the Turke no less then in Spain 13 Francis the First King of France sent Caesar Trâ—…gosus and Anthony Rincone Ambassadors to the Turk they were surprised by the Armies of Charles the Fifth on the River Poe in Italy and were put to death the French King complained that they were wrongfully murdered but the Emperor justified their death for that the one being a Genois and the other a Milanois and his Subjects feared not to serve the King his Enemy 14 Henry the Eighth being in League with the French and at enmity with the Pope who was in League with the French King and who had sent Cardinal Poole to the French King of whom King Henry demanded the Cardinal being his Subject and attainted of Treason sed non praevaluit 15 Samuel Pelagii a Subject to the King of Morocco pretended that he was an Ambassador sent unto the States General of the United Provinces he came to them and accordingly they did treat with him afterwards he departed and being upon the Sea he did take and spoil a Spanish Ship and then came into England the Spanish Ambassador here having received intelligence of the spoliation caused his Person to be seized upon intending to proceed against him as against a Pyrat and imprisoned him and upon conference with the Lord Coke Dordridge and other Judges and Civilians they declared their opinions That this Caption of the Spaniards Goods by the Morocco Ambassador the same is not in Judgement of Law a Pyracy in regard it being apparent that the King of Spain and the King of Morocco are enemies and the same was done in open Hostility and therefore in Judgement of Law could not be called Spoliatio sed legalis Captio and a Case out of 2 R. 3. fo 2.
neither to any other to whom the King hath granted such Royal Priviledge The reason why the Laws were so strictly declared by the Romans was for by the Lawes of Rhodes if any Ship had become Wreck though all the persons were saved and alive yet the Ship and Goods became seizeable by the Lords But the same being Barbarous was afterward repealed and abrogated as well by those Emperours in their Territories as here in England the first by the Judgment of Oleron which provided in such misfortune That if the Merchant Marriners or Merchants or any of these escape and come safe to Land the same was not to be accounted Wreck The Emperour Constantine the Great sayes in this case if any Ship at any time by any Shipwreck be driven unto the shoare or touch at any land Let the Owner have it and let not my Exchequer meddle with it for what right hath my Exchequer in another mans Calamity so that it should hunt after gain in such a woful case as this is And yet if no Kindred appear within a year and a day and appearing prove not the Goods shipwracked to be theirs the Goods come to the Exchequer even by that Law So much that Law condemns carelesness which is written vigilantibus non dormientibus And with this agrees the Laws of Oleron and the Lawes of this Land as taken out of those Imperial Laws in that Point as is conceived II. The Civil Law was ever so curious and careful of the preserving the Goods of such miserable persons that if any should steal such they should pay four-fold to the Owner if pursued within a year and a day and as much to the Prince or his Admiral So carefully were and so exact in requiring restitution that the very stealing of a Nayl or the worth thereof obliged the Thief to the restitution of all the remaining Goods And by the Emperour Antonius it was made a Law for such sort of men that they should be batten'd and banish'd for 3. years but that was onely for those of a high and Honourable rank but those that were base and ignoble should be scourged and sent to the Gallies or Metal Mines And the preventing of help to such shipwrackt persons was punisht with the same suffering as a Murtherer The like for those that shall put forth any Treacherous Lanthorn or Light with intention to subject them to danger or shipwrack was punish'd with death And though no harm happens yet he may be punished hence it is that Fishers are forbidden to Fish with Lights in the Night for fear of betraying of Saylors But this good Law does not extend to Pyrats Robbers Sea-Rovers Turks or other Enemies to the Catholique Faith Where a man Dogg or Catt escapes alive out of the Ship neither the Ship or other Vessel nor any thing therein shall be adjudged Wreck but the Goods shall be saved and kept by the Sheriff Coroners or the Kings Bayliffs and delivered to the Inhabitants of the Town where the Goods are found so that if any within a year and a day sue for those Goods and after prove that they were his at the time of the shipwrack they shall be restored to him without delay but if not they shall be seized by the said Sheriff Coroners or Bayliffs for the Kings use and shall be delivered to the Inhabitants of the Town who shall answer before the Justices for the Wreck belonging to the King Where the Wreck belongs to another he shall have it in like manner and if any be attainted to have done otherwise he shall suffer Imprisonment make Fine to the King and yield damage also If a Bayliff do it and it be disallowed by his Lord the Bayliff shall answer for it if he have wherewithall but if not the Lord shall deliver his Bayliffs Body to the King The Lawes of Normandy agrees with this Law IV. If the Ship perishes onely and the Goods are safe in that case the Goods ought to pay a proportion of a 5th or 10th penny according to the easie or difficult winning or saving of the said Goods Rich Goods as Gold and Silver and Silk pay less than Goods of great weight and cumber being in less danger unless it were a Wreck going into a Port for which the Skipper was not bound for there è contra then the Skipper is not to be considered V. The King shall have Wreck of the Sea Whales and great Sturgeons taken in the Sea and elsewhere throughout the whole Realm except in places priviledged by the King VI. By the grant of Wreck will pass Flotsam Jetsam and Lagan when they are cast upon the land but if they are not cast upon the land the Admiral hath Jurisdiction and not the Common Law and they cannot be said Wreck Wreccum Maris are such Goods onely as are cast and left upon the land by the Sea Flotsam is when a Ship is sunk or otherwise perished and the Goods float upon the Sea Jetsam is when the Ship is in danger to be sunk and for lightning the Ship the Goods are cast into the Sea notwithstanding which the Ship perisheth Lagan vel Ligan is when the Goods which are so cast into the Sea before the Ship perishes being heavy are by the prudence of the Master or Marriners who have an intent to save them so sunk as that they may come at them again in order to which they fasten a Buoy or other light matter that may signifie to them where they lye if providence should bring them in a Condition to retake them The King shall have Flotsam Jetsam and Lagan when the Ship perisheth or when the Owners of the Goods are not known but when the Ship perisheth not è contra A man may have Flotsam and Jetsam by the Kings Grant and may have Flotsam within the high and low Water-mark by prescription as it appears by those of the West Countries who prescribe to have Wreck in the Sea so far as they may see a Humber Barrel VII If a Ship be ready to perish and all the men therein for safeguard of their lives leave the Ship and after the forsaken Ship perisheth if any of the men be saved and come to land the Goods are not lost A Ship on the Sea was pursued with Enemies the men for safeguard of their lives forsake the Ship the Enemies take the Ship and spoyl her of her Goods and Tackle and turn her to Sea by stress of weather she is cast on land where it happened her men arrived It was Resolved by all the Judges of England That the Ship was no Wreck nor lost VIII If Goods are cast up as Wreck and it falls out they be bona peritura the Sheriff may sell them within the year and the sale is good but he must account to the true Owners Owners clayming the Wreck must make
their proof by their marks or Cockets by the Book of Customes or by the Testimony of honest men and if the Wreck belongs to the King the party may sue out a Commission to hear and determine and that by the Oaths of twelve men Or else he may bring his Action at Law and make out his proof by Verdict but such Action must be brought within the year and day Note Flotsam Jetsam and Lagan are Goods on or in the Sea and belong to the King who by Charter hath granted them to the Lord Admiral IX If Goods are wreckt on the shoare and the Lord having power takes them he shall not pay Custome The Admirals of England ut magnus Admirallus Angliae Hiberniae Walliae ac Dominiorum Insularum earundem Villae Calisiae Merchiarum ejusdem nec non Gasconiae Aquitaniae classium marium dictorum regnorum Angliae praefectus generalis c. which are the words of their Patents used at this day do claym all Wrecks arising from any of those places by vertue of their Grants X. King Edward the Second in the first year of his Reign by his Charter granted the Castle of Carisbrook with all the Lands and Tenements in the Isle of Wight formerly belonging to Isabella Fortibus Countess of Albemarle to his great Favourite Peter de Gaveston and Margaret his Wife and the heirs of their two bodies begotten together with sundry other Castles and Lands and commanded Nicholas de Bosco to put him into actual possession and likewise commanded Robert de Sanson Keeper of the Forrest of Parkhurst in that Isle to be intendent to them for the Farm he had granted him for life for the Custody thereof which being after soon reseised into the Kings hands he granted this Castle with all its Services and all his Lands in that Isle to Edward his Son and his Heirs Kings of England and afterwards for the ascertaining what did of right belong to the same Castle an Inquisition went out by which it was found inter alia qd wrecknÌ„ maris Pertinens ad dictum Castrum valet ê‘ annÌ„ 4 S So that by the general Patent of the Admiral will not pass the Wreck of this Isle without special words granted in the Patent Note If the Wreck happened or was occasioned by reason of any fault or negligence in the Master or Marriners the Master must make good the loss but if the same was occasioned by the act of God to avoid an Enemy or Pyrat and the like there he shall be excused CHAP. VI. Of Averidges and Contributions I. Of Goods and Merchandize when subject to be cast over-board II. Of the Account rendred of such ejected Goods and by whom III. Of the Antient Lawes of England as in reference to such Ejectments IV. What Goods must come into the Averidge and what are exempt V. The Master discharged by such acts by the Common Law VI. The Ships Geare or Apparel whether within the Averidge VII The residue of the Goods where tacitly obliged to answer the Averidge VIII Of Goods remaining a shipboard spoyl'd by reason of the ejecting of others where subject to the Averidge IX Where Ship and Lading are both made liable to the Averidge X. Of misfortunes not subject to an Averidge XI Where the remainder of the Goods are exempted from the Averidge and the damage of the ejected Goods falls on the Master XII Damage to the Ship where the Lading contributes and the Standard rate in Contributions XIII The Master becomes a Captive for the redemption of Ship and Lading where lyable to the Averidge and where discharged XIV What Goods are subject to the Averidge XV. Contribution for Pylotage and where the remaining Goods not subject to Averidge XVI Rules general for settling the Averidge I. SHips being Freighted and at Sea are often subject to storms in which by the Ancient Lawes and Customes of the Sea in Extream necessity the Goods Wares Guns or whatsoever else shall be thought fit may in such Extremity be flung over-board but then the Master ought to consult with his Marriners who if they consent not and yet the storm and danger continues the Master may command notwithstanding the casting overboard what he shall judge most fitting for the common safety of the rest If there be a super Cargoe a request ought to be made to him to begin first but if he refuses the Marriners may proceed II. If the Ship so fortunes as to out-weather the Storm and in safety arrives at her Port of discharge the Master and the most of his Crew must swear that the Goods were cast over for no other cause but purely for the Safety of the Ship and Lading The custome of clearing of that Point varies according to the several Countries or places they arrive at III. King William the Conquerour and Henry the First made and ratified this Law concerning Goods cast over-board by Marriners in a Storm in imitation of the Ancient Rhodian Law de jact ' Si ego jecero res tuas de Navi ob metum mortis de hoc non potes me implacitare nam licet alteri damnum inferre ob metum mortis quando periculum evadere non potest Et si de hoc me mesces qd ob metum mortis nil fecisse de comespriorai Et ea quae in navi restant dividantur in communi secundum catalla et si quis fecerit Catalla extra navim quando necessitas non exigerit ea restituat IV. The Ship arriving in safety the remainder must come into the Averidge not onely those Goods which pay Freight but all those that have obtained safety and preservation by such ejection even Money Jewels and Clothes and such like are not exempted But those things which are born upon a mans body Victuals and the like put a Shipboard to be spent are totally excluded from the Contribution The Master ought to be careful that onely those things of the least value and greatest weight be flung over-board V. As this Law does take care that this common Calamity should be born by all the parties interessed by a general Contribution so the Common Law takes notice of the misfortune and makes provision to Indempnifie the Master and therefore if the party Owner of such ejected Goods shall bring an Action against the Master or Owners of the Vessel the Defendant may plead the special matter and the same shall barr the Plaintiff VI. But if the Ships Gear or Apparel be lost by Storm the same is not within the Averidge but is accounted like unto a Workman breaking or spoyling his Tools So for Goods secretly brought into the Ship against the Master or Pursers knowledg no Contribution is to be made except in the avoiding of a danger as the flinging the Most overboard or the slipping the Tow-Anchor or Boat This Order is observed generally in the rating
a restriction which perhaps in the end may destroy Society however this hath its quantum for though harmless Passage may be excepted in the first Institution of Dominion yet that is to be understood when leave is granted and though fear of the multitude which is to pass cannot take away that Prince his Right thorough whose Territories or Seas they go yet it follows as naturall that in the Institution of such liberty that Prince or People may provide and if they have any probable or any reasonable cause interdict their passage till security or Hostages are pledged for their peaceable passage nay without declaring their reason may interdict them absolutely any manner of passage if there be any other way to pass in safety And therefore at this day by the Laws of England the King may interdict any Nation or People whatsoever to pass through his Seas without leave first obtained to that purpose and may visit all Ships be they of War or of Trafick that shall occur or be in the same III. Nor is passage onely due to Persons but to Merchandize also for no man hath Right willfully to obstruct the way of Commerce to any Nation with any other that is remote because the permission of Trade is for the interest of humane Society and is not discommodious to any one and to that purpose Philo speaks On the Sea all Ships of burden safely pass according to that right of Commerce which is between all Nations arising from the desire of Natural Society while they supply one another mutually which the one wanteth and the other can spare for envy hath never invaded either the whole world or the greater parts thereof And Plutarch speaking thus of the Sea This Element hath made our life sociable and perfect that otherwise would be wild and without correspondence it supplyes our wants with mutual ayd and by exchange of things needful it procures fellowship and friendship And the wisdom of God is highly to be admired who hath not granted all things to every Land but hath distributed his gifts to several Countries that men having need of one another might maintain Society for their Common good therefore hath he endowed Man with knowledge and understanding to invent and build Ships to govern and guide them by those Lamps of Heaven and other Instruments of his Divine Wisdome enabling thereby the Merchant to convey to all what any place affords according to that of the Poet What Nature any Land denyed By Navigation is supplyed But as the Sea is free and open for Traders yet nevertheless the Passengers are subject to such Restrictions Laws and Ordinances as those Soveraign Princes shall make of force in those places where they have an accession of Property or Soveraignty IV. But admitting that such free Passage may be granted as above whether Tribute may be imposed by him that Rules the Land upon Merchandize passing by Land or by River or by part of the Sea which may be called an Accession of the Land that is the place thorough which they pass is as much under the absolute Jurisdiction of the Prince as the very Land it self Certainly whatsoever Burdens have no relation to the Merchandise no equity suffers the same to be imposed on the same neither can Poll-money put on the Inhabitants to sustain the Charge of the Commonwealth be exacted of Passengers V. Nevertheless if either to secure the Passengers Goods and Vessels from Pyrats and others or for the Erecting of Beacons Light-Houses and other Sea-Marks and such like there indeed some compensation may be laid upon the Commodities or Ships passing thorough so that the measure of the cause be not exceeded Or as my Lord Coke observes in the case of the Halage money it be reasonable for upon that depends the Justness of Tributes and Toll And upon those Reasons the Venetian in the Hadriatique the King of Denmark in the Baltique Sea does demand the same And the King of England may do the like in the Chambers of his Empire and that by his Prerogative for the same is not so much compulsory to any to pay but to them that will take benefit of such accommodation Strabo relates That the Corintbians even from the most ancient of times received Tribute of the Commodities which to avoid the compassing of Malea were carried by Land from Sea to Sea So the Romans received a price for the passage of the Rhine But this Right of imposing on Ships and Goods passing thorough some Territories is found cruel especially when they must pass thorough the Territories of a powerful and fierce People then it is heavy to the Merchant to compound for it 's often done on hard and grievous terms The End of the Second Book CHAP. I. Of Freedom Bondage Slavery Erile and Abjuration I. Of Freedom by the Law of Nature and of Bondage Slavery or Captivity introduced by the Law of Nations II. Of the Actions that subject Man to Bondage III. Of the Dominion over Slaves Bond-men and Captives IV. Of the Cause or Reason of such Dominion V. That this Right or Dominion was not a Law universal VI. Of Bondage or Slavery where discontinued by the Christians and Mahomitans VII Of a Servitade at this day standing with the Laws of a Christian Common-wealth VIII Of Manumission and Freedom by the Hebrew and Roman Law and by the Laws of England IX Of Disfranchising the several ways X. Of Abjuration and Exile and what operation it hath XI Of Freedom in Cities and Corporations in reference to Merchants Traders and Foreiners I. IN the primitive state of Nature no men were Servants yet it is not repugnant to natural Justice that by the Fact of man that is by Covenant or Transgression Servitude should come in therefore Servitude is brought in by the Laws of Nations II. Hence it is That those that will yield up their persons or promise Servitude are accounted Slaves so likewise all that are taken in Publick War and brought within the Guards of their Conquerors nor is transgression necessary but the Lot of all is equal after the War is begun even of those whose ill fortune subjected them to be deprehended within the Enemies Bounds nor are they Servants only themselves but all their Posterity for ever III. The Priviledges of this Right or Dominion are infinite since there is no suffering which may not be imposed on such nor work which may not every way be extorted from them So that even the Cruelty of Masters became almost unpunished till the Municipal Laws of Countreys set Bounds to their rigour and power Nor are the persons become theirs only that have the power of them but also all that they have for such unhappy persons can have nothing of their own Hence it was That that excellent Law in favour of such was introduced by the Romans called Legis Corneliae which was when a Captive intra presidia
hostium dyed in his Captivity if he had made a Will before his being taken Captive yet such a Captive should in favour of such Will and for the upholding of the same be feigned to be dead and in puncto temporis immediately before such his being taken Captive and so by that Legal Fiction of death his Will became firm and valid as if he had really dyed without ever being taken by the Enemy So likewise if one had been made a Slave yet if he had returned out of his Captivity that for the preservation of his Right and Propriety he was feigned as if he had never been absent and was immediately redintigrated into his pristine Estate and Condition IV. Now all these Priviledges and Immunities were introduced by the Laws of Nations for no other reason but that their Captors tempted by so many Immunities might willingly abstain from that cruel rigour of slaying their Prisoner Hence it is That the Captors Dominion is extended to the Children for should such use their highest Right they would not be born but Children that are born before that calamity and were never taken Prisoners are freed from that unhappy state V. Though this Dominion or Right was generally acquired in most Nations yet was not the same a universal Law for amongst the Jews refuge was granted to Servants who fell into that calamity by no fault of their own And the state of Christendome at this day is apparent That Prisoners taken in War do not become perfect Slaves as of old but only remain in the Custody of the Captor till Ransoms are paid whose valuations are generally at the pleasure of the Conqueror yet persons of Eminent Quality as Generals and the like such persons if taken by a common Soldier yet he has no advantake by the same for such a Captive is become Prisoner immediately to that Prince or State under whom the Captor served But if it be the Lot of an Inferior Soldier to become a Prisoner of War he is then become absolutely the Captors to dispose of but he wanting those necessaries in the Field for himself which he ought to provide for his Prisoner commonly waives that Interest and generally yields him up as a Prisoner of War to be disposed of by that Prince or State under whom he served VI. Slavery in Christendome is now become â—…bsolete and in these latter ages the minds of Princes and States having as it were universally agreed to esteem the words Slave Bondmen or Villain barbarous and not to be used and that such as are taken in War between Christian Princes should not become Servants nor be sold or forced to work or otherwise subjected to such servile things but remain till an exchange of Prisoners happen or a Ransom paid as afore Nay the very Turks and Mahomitans at this day generally observe this among themselves not to make Slaves of those of the Mahomitan Religion though taken in War and that which is most to be admired a Christian fallen into that miserable state renouncing his Religion and becoming a Mahomitan immediately upon his Circumcision obtains his Freedom with a Recompence The Cruelty of those Infidels to those unhappy Persons together with the reward of renouncing hath given cause to many a brave Person to become Renegado the which being considered by the Parliament in England they made a provision for such miserable Persons as should be taken by Turkish and Moorish Pyrats VII Though Slavery and Bondage are now become discontinued in most parts of Christendome yet there may be a Servitude which may amount to a labour or suffering equal to that of Captives the which may be justifiable for men either through Poverty and the like may oblige themselves by Contract for maintenance to a Servitude that 's perpetual i. e. for life and so for years but at this day there is no Contract of the Ancestor can oblige his Posterity to an Hereditary Service nor can such as accept those Servants exercise the ancient Right or Dominion over them no nor so much as to use an extraordinary rigour without subjecting themselves to the Law If an Eye or a Tooth had been struck out injuriously by the Hebrew Law Freedom was immediately due and by the Greeks if Servants had been ill treated it was lawful for them to demand a Sale of themselves to others At Rome the Statues became Sanctuaries for Servants to implore the help of the Governours against rigour hunger or any other intollerable injury inflicted by their Masters and even in London at this day Servitude amongst the many Causes as not Inrollment of the Indentures not Instructing in the Art want of necessaries infra aetatem 14 c. Cruelty Hunger Rigour immoderate Correction and the like are Causes sufficient on a Monstrans or Petition to the Lord Mayor and Aldermen to dissolve the Contract though under Hand and Seal and to Decree all or part of the Dowry or some given if any to the Servant and if cruelty hath been in the case to expose the Master to answer dammage to the Party Servant VIII Ulpianus observes after that by the Laws of Nations Servitude came in then followed the benefit of Manumission By the Hebrew Law after the expiration of the time agreed on the Servant was to be manumitted and that not without Gifts like Londons Freedom by the Custom of which the Master is always at the charge of Cloathing and discharging the Chamberlains Fees By the Roman Law every Son was in such subjection to his Father that before he could be released of this subjection and made Free he should by an Imaginary Sale be sold Three times by his natural Father to another man who was called by the Lawyers Pater Fiduciarius that is a Father in Trust and then be bought again by his natural Father and so manumised by him and then he became Free This form of setting Free was by them called Emancipatio Freedom That Roman Darling was to be obtained Three ways 1. By Birth both or at least one of their Parents being Free and such were called Cives Originarii 2. By Gift and Co-optation when the Freedom was bestowed on any Stranger or Nation and they were termed Civitate Donati And so we read that Caesar took in whole Nations into the Freedom Lastly By Manumission which was thus when as the Servant was presented by his Master before the Consul or Praetor the Master laying his hand upon his Servants head used this form of words hunc liberum esse volo and with that turning his Servant round and giving him a Cuff on the Ear he did emittere servum e manu The Praetor laying then a certain Wand or Rod called vindicta upon the Servants head replyed in this manner Dico eum liberum esse more Queritur then the Lictor or Serjeant taking the Wand did strike the Servant on the head and with his hand he struck
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
ought not to be done by Nations in Amity 1. 1. 9 Restitution of the overplus the debt and damages satisfied 1. 2. 22 Restitution only to be made in that Country whither the Vessel is carried 1 4. 14 Scavage WHat and for what due 2. 14. 1 Sea Princes may have an Exclusive Property in the same 1. 5. 11 It is a common High-way and such as are born on the same not Aliens 1. 5. 13 Princes may have an exclusive property in the same 1. 5. 2 Subject to protection and to be divided amongst men 1. 5. 4 5 Sea inseparably appendant to the Kingdom of England 1. 5. 13 Not without protection 1. 5. 6 The British Sea the Dominion vindicated by King Edgar and others 1. 5. 7 British Sea is the 4. Seas 1. 5. 18 Kings of England have istum Regimen exclusivè of the Kings of France 1. 5. 11 The importanee of the same to the Crown of England 1. 5. 14 The British Sea ever belonged to the Empire of this Isle 1. 15. 2 The Extent thereof and the King of England's Right on the same how far agreed by the Dutch Treaty 1. 15. 3 Servitude or Slavery Brought in by the Lawes of Nationt 3. 1. 1 Those that continue in that state can have nothing of their own 3. 1. 2 Children are Slaves and the Reasons that fiâ—… introduced that Dominion 3. 1. 4 Refuge was granted by the Jewes to such 3. 1. 5 Slavery become obsolete in Christendome 3. 1. 6 Servitude in some respects may stand at this day 3. 1. 7 A Slave might be imprisoned at the will of his Lord 3. 1. 9 Sheriff May sell bona peritura of Shipwrackt Goods 2. 5. 8 Ships In necessity may take Goods from another by force of Arms 1. 4. 18 Ships gain'd by an Enemy in Battail and regain'd where the property is lost 1. 1. 7 Ships of Warr retaking a Prize from an Enemy restitution of the same where made ibid. Fire Ships not subject to Quarter 1. 14. 12 Ships where subject to an Embargo by the Laws of Enemies 1. 1. 11 Ships of Friends freighted with the Goods of Enemies 1. 1. 12 Ships taken by Letters of Marque ought to be carried infra presidia of that Prince or State by whose Subject the same were taken 1. 2. 19 Ships taken by a lawful Commission but the property not being changed by the Lawes of Nations the persons may be questioned Civiliter but not Criminaliter 1. 1. 4. Ships may be Pressed for Publique Service 1. 6. 1 4 Though the Vessels of another Prince in Amity be they private or publique 1. 6. 2 4 Ships Pressed ought not to be imployed but on publique occasions 1. 6. 3 The punishment of those that shall break the Arrest 1. 6. 4 Newly built ought to make one Voyage before the Owners can part 2. 1. 3 King of England's Ships are not to strike to any Ship whatsoever generally and when out of Courtesie they may 1. 15. 6 Are to Salute Castles and Ports of Strangers and how the same is regulated 1. 15. 7 The Commanders of them are not to Salute their Admiral or Commander in Chief after they have done it once 1. 15. 9 Second Rate Ships when they are to Salute Noble-men coming aboard 1. 15. 9 Their Duties in Salutations 1. 15. 9 10 11 Ship taken in pieces and rebuilt is another Ship but if ript up only to the Keel otherwise 2. 1. 6 Ship repaired with another mans Plank who are the Owners 2. 1. 7 By the Sale of the Ship with all her Apparel and Instruments thereto belonging the Ship Boat passes not 2. 1. 8 May be Mortgaged in time of necessity 2. 2. 14 The various way of Freighting them 2. 4. 1 Perishes the Freight vanishes 2. 4. 13 Ships Encountring each other how the damage is to be settled 2. 9. 7 Not having two Decks and 16 Guns are to pay one per-Cent over and above the Book of Rates 2. 13. 3 Burning any of his Majesties Ships the party to be punished with death 1. 14. The Kings Ships and their Provisions not to be imbezelled uâ—…r they by negligence or wilfulness destroyed 1. 14. 24 The French Ships are to pay 10 s. for every Passenger that shall passe in or out of this Kingdome 2. 13. 1 Societies They make but one Body and are to make but one single Entry of their Goods 2. 13. 13 Where their debt obliges each Member and where not 1. 2. 2 3 A Bill accepted by one binds not the rest though it may the party acceptor 2. 10. 19 Superiours not responsible to Inferiours by the Lawes of Nations 1. 4. 18 Spies Lawful by the Lawes of Nations how used if catch't 1. 14. 21 1. 13. 6 Ships in that Service not obliged to Fight 1. 13. 7 Spoyl Goods may be as well spoyled as taken 1. 1. 15 Spoliatico the difference between that and Legalis Captio 1. 1. 9 The Spoyl or Prize is to be equally divided as well to those Ships that are present as those that attaque and enter 1. 2. 10 States May execute the Judgments of each other 3. ult 8 But not in cases of Life or Honour 3. ult 9 Subjects Share in the Indignity offered to their Prince 1. 15. 16 Subsidy On what it issues out 2. 12. 8 How the same is governed upon Woollen Cloaths 2. 12. 11 Care WHen to be allowed and for what 2. 13. 14 Traytors It is lawful to make use of a Traytor but not to make one 1. 14. 20 Treason in an Alien is to be tryed by the course of the Common-Law and not per medietatem 3. 4. 5 Treason out of the Realm may be tryed within the Realm 3. 4. 7 Treason Is subject to be punished every where 1. 11. 2 They are to be delivered up 1. 11. 4 If Treason in killing an Ambassadour Creaties Of Truce for years settles a Peace and preserves the Honour of each party 1. 9. 3 Less subject to a Rupture then a Peace 1. 9. 4 Breaches of Truces how punishable 1. 9. 5 Tribute It is lawful to pay Tribute to Caesar what is meant by the same 1. 12. 2 Vide Customes Tiumphs Their Antiquity Use and Advantage 1. 14. 29 Trust. A Stock in a Company is a Trust and is governed accordingly 2. 11. 6 Tryals Tryal of Warr must be by the Records of Courts and not Juries 1. 1. 6 Tryals per medietatem their Antiquity 3. 4. 1 It matters not of what Tongue so the moyety are Aliens 3. 4. 3 If both parties are Aliens then all are to be Natural born Subjects ibid. May pray Venire facias as well after the awarding the Venire as before 3. 4. 4 Vacancy GIves a Right to plant 3. 5. 2 Civil vacancy what is meant by the same 3. 5. 3 Victuals Failing a Shipboard what every one hath a Shipboard may be brought forth 1. 1. 4 Voyage Voyage when the same begins 2. 7. 10 Trading Voyage but one Voyage 2. 4.