should be satisfied and repayed Yet admitting this Treaty at Breda concluded upon the surprize of Chattam had been duly Inrolled and made a matter of Record in Chancery It was afterwards cancelled disanulled and openly extinguished by Proclamation in the year 1672. And particularly signified to His Majesty by a report upon a reference to five Lords of the Council Table concerning the Debt and Damages mentioned in the Letters Patents aforesaid In these words That the States General having wholly cancelled all past Treaties and Agreements and left your Majesty and your Subjects as free in all iustice and Equity as if they never had been made We therefore humbly presume to report our Opinions to your Majesty that it is now but just and seasonable for your Majesty to insist upon reparation for the Debt and Damages aforesaid This reference was made to the Lord Arlington Lord Ashley Sir Thomas Clifford Sir Iohn Trevor and Sir Iohn Duncomb by Order of Council 22. of March 1671. Now whether a Treaty never Inrolled and afterwards Cancelled by Order of Council and Proclamation should be properly insisted upon in any Judicial Writs is fit for another Court of Judicature or Parliament to resolve It 's granted that after a peace concluded all Temporary Letters of Marque having a bare Authority in themselves are for reasons of State totally Extinguished in regard those Letters of Marque had not an Authority coupled with an Interest A general Letter of Marque or Reprizal as before it 's said is an Act of War A particular or Especial one is a process at Law which is our case Letters of safe conduct usually granted to Foreign Ambassadors and other Persons Upon Emergent occasions are in the nature of a Supersedeas to any Commander that hath a Commission or general Letter of Marque or Privateer so properly called as before nor shall they be interrupted by any Person that hath a speciall Commission grounded upon the Law of Marque and this is consonant to reason of State and the Law of Nations And it is not denyed but that a Truce between Enemies supersedes all Temporary Letters of Marque being Acts of War but not special Letters of Marque or Reprisals which take their rise from Spoyls Depredations committed in times of Peace upon particular men or Companies that becomes a personal injury And the reason is plain for that the Law of Marque and Grants thereupon are consistent with times of Peace and the strictest Amity and Alliance between Sovereign Princes and States Captions thereupon being in the nature of Seizures in a hundred for a Robbery upon a private person before Sun-set which comes to a common Average to prevent a failer of Justice It 's observed that Sovereign Princes holds the Scepter in one hand and the Globe in the other The Sword is carried before them by some Chief Minister of State to shew that Justice is to be duely Administred by Officers that are accomptable for their miscarriages By the Law of England the King can do no wrong He is obliged by Oath to protect His Subjects in their Rights Properties and Estates Therefore His Ministers cannot take them away Yet no man of sence will denie but that the King for a publick good may by due means and ways make void even the Letters Patents in this case of Reprisal that is to say as it 's observed before with Money in the right hand of a Lord Treasurer Dutch Embassador or Lord Chancellor and the Scire-facias in the left hand for the Grantees to shew cause the Money being payed why they should not bring the Letters Patents into Court to be Cancel'd Treaties of State if they be repugnant to the Law of God the Law of Reason or the Laws and Statutes of England ipso Facto they are void in themselves The third Article of the pretended Treaty at Breda concluded in the year 1667. after the Surprize at Chatham says that all Offences Injuries Damages and Losses sustained on either side by the King or the States or their Subjects during this War or at any time before upon any cause or pretence whatsoever should be totally expunged and buried in Oblivion and all Actions at Law concerning the same Now if any forced Interpretation should be put upon this Article so generally Penned that all private differences of meum tuum between particular persons of either Nation should be comprehended in this Article it 's void because it s not in the Power or Prerogative of any Prince to hinder the due course of Law for a particular debt or personal injury Admit that a Hollander were indebted to an English-man before the Treaty at Breda for goods Sold or sent to make Sale of and the Dutch-man should plead specially the Treaty at Breda in Bar to an Action brought for the Money it would not hold good in Law for that it cannot be any ways intended that particular Debts and Actions should fall under the considerations of such Offences Injuries Losses and Damages mentioned in that Article which generally relates to Kings and States As for Mr. Carew his Plea to the Scire Facias and Affidavit annexed speaks sufficiently for his Justification Persisting That no restitution is made for the 151612 l. or any part thereof although Sir James Butler and others are ravishing his Estate from him upon Fore-closures of Equity even for Moneys lent upon account of prosecuting this Cause There was never such a president since the Creation that a particular Interest and Property so Liquidated and Established for satisfaction and reparation under those circumstances according to the Laws and Statutes of this Realm wherein so many Families are concerned as the Creditors of Sir William Courten and his Son Sir Paul Pynder and Sir Edward Littleton should be so slighted and contemned The Lord Chancellor well observed it concerned the publique it 's very true it concerns the publick Honour and Interest the publick Justice and Equity of the Nation that the Debt and Damages should be satisfied and repayed There is no Reason of State that particular persons should Purchase a publick Peace at their own Charge or that a private Interest should be Sacrificed for the publick good without satisfaction out of the Publick Purse The Parliament of Paris or Monpilier cannot give Laws to the Parliament of England that enacted if any man should be spoiled by French or others at Sea in peaceable times they shall have the right and benefit of the Law of Marque or Reprizals to recover their Loss Damages and incident Charges which by consent of Nations being once ascertained by a Judicial Act must have its Extent and Execution the end of the Law Satisfaction And this being agreeable to the Laws of God the Laws of Nature the positive Laws of Nations and the Laws and Statutes of England and the King having by His Letters Patents under the Great Seal of England pursuant thereunto commanded and required all Judges of the Admiralty and Officers there
same in haec verba Charles II. by the Grace of God c. which being read they said that the Letters Patents ought not to be brought into Chancery nor the Enrollment thereof obliterated and made null or void because King Charles I. by his Letters Patents under the Great Seal of England in the year 1635 gave Sir William Courten and his Partners a Charter to Trade and settle Factories in the East-Indies China and Iapan for Trading Voyages and renewed the same to William Courten Son and Heir of Sir William and his Partners And that Sir Paul Pyndar had furnish'd Sir William Courten with Thirty five thousand Pounds towards the first enterprize of that Trade And that the said William Courten the Son and his Partners had set forth the two Ships named the Bona Esperanza and Henry Bona Adventura in the Patent for Reprizals mentioned in the year 1641. with Moneys Goods and Merchandizes for supply of the said Factories and Trade whereof seven parts belonged to Courten and the 8th part to his Partners And that William Courten the Son by his Indenture dated 26 April 1642. had transferred and assigned his Interest in the said Ships and Merchandizes to Sir Edward Littleton in the County of Stafford Baronet for Counter-security against several Debts contracted by Sir Wil. Courten and his Son wherein he stood obliged for payment thereof And that Sir Edward Littleton joyntly with Wil Courten the Son had by their Indenture dated Decemb. 19. 1642. transferred and assigned all their Interest in the said Ships Bona Esperanza and Henry Bona Adventura to Sir Paul Pyndar towards his Debt and the surplus to the Creditors of Courten and Littleton And the said Turnor and Carew further say that the Officers of the East-India-Company of the Netherlands in the year 1643. unjustly seized and detained the said two Ships and Lading and converted the same to their own use without any legal Process contrary to the Laws of Nations and the Laws and Statutes of this Realm which was proved by the Testimonies of several Witnesses in due form of Law taken And that the said East-India-Company and the States of the Netherlands had altogether denied to make any satisfaction or reparation to the said Proprietors for the said Spoils and Depredations Afterwards Wil. Courten Esq the Son and Executor of Sir Wil. Courten died Intestate in the year 1655. And William Tooms Executor of Sir Paul Pyndar in the same year also died Intestate And that Letters of Administration of the Goods and Chattels of Sir Paul Pyndar with his Will annexed unadministred was in due form of Law granted to Sir William Powel Baronet and Letters of Administration of the Goods and Chattels of Sir Will. Courten with his Will annexed unadministred was likewise in due form of Law granted to the said George Carew who bona fide paid and satisfied the said Sir Will. Powel Iohn Whitfield Esq and others the sum of 3000 l. sterling in satisfaction of their Debts upon account of Sir Paul Pyndar out of the said Carew's proper Money whereupon Sir Will. Powel by agreement having relinquished the Administration Letters of Administration with Sir Paul Pyndar's Will annexed was in due form of Law granted to the said George Carew Then the said Francis Earl of Shrewsbury Sir Iohn Ayton and others humbly supplicated His Majesty on the behalf of themselves and others interessed to require the States-General to make satisfaction and reparation for the said Spoils and Depredations as in the said Letters Patents at large appears but no restitution or reparation could be obtained Whereupon the said Letters Patents were granted for the recovery of 151612 l. with Costs and Damages under those conditions and limitations therein expressed And the said Turnor and Carew further say that they are entituled and legally vested with an Interest and inviolable right to recover and receive the said Money according to the Laws of Nations and the Laws and Statutes of England and the very express grants and intentions in the Letters Patents contained accordingly notwithstanding any War or Wars or the supposed Treaty at Breda or any other Treaties whatsoever between His Majesty and the States-General or the pretended Supersedeas in the Scire facias mentioned The said Turnor and Carew in fact saying that they or either of them or any claiming under them or either of them have not to this day received taken or seized from the States-General or their Subjects or the East-India-Company of the Netherlands the said sum of 151612 l. or any part thereof or any part of the 800000 Pattacoons mentioned in the 10th Article of the last Treaty at Westminister mentioned in the said Scire-facias or half the Charges and Expences occasioned thereby Wherefore the Letters Patents ought not to be brought into Chancery or the enrollment thereof cancelled or made null and void for that the King was not deceived in His Grant Signed by Richard Wallap Edmond Saunders Iohn Somers Richard Powell Charles Molloy THe Record being made up and brought into Court on the 26th of May 1682. the Attorney-General and the Solicitor both moved for Judgment without any other Argument for it than pretended Reason of State Whereupon the Councel for the Defendants moved that it was against the practice of all Courts in Westminster-hall to argue the same Term the Record was brought in or without a Consillium and a convenient time appointed to study and argue the points in Issue especially in a matter of this weight and consequence being a noble Case to be debated and argued both in point of Law and State and therefore desired a longer day whereupon the Lord Chancellor stood up and said If they were not ready to argue he was ready to give Judgment and that they might argue by the Spirit if they would So his Lordship informing the Court that he had studied the Case himself And for the satisfaction of all man-kind as he said gave these Arguments following which were taken in writing by several Councellors at Bar. The Lord Chancellor's Arguments THe Statute of 31 H. 6. cap. 4. gives Admiral Iurisdiction to the Court of Chancery for speedy relief in cases where strangers are robbed at Sea by the King's Subjects And that after a Peace concluded Letters of Marque for Reason of State are totally extinguished These Letters Patents especially being granted when this Kingdom and the Hollanders were in a state of Enmity they appearing to bear date the 19th of May 1665. in the heat of the War are therefore disannulled by the subsequent Peace A Safe Conduct granted by the King supersedes Letters of Marque as appears 11 H. 4. N. 66. by Iudgment of the Parliament of Paris and the Parliament of Montpellier 2 H. 5. N. 34. A Truce between Nations that have been at Enmity supersedes Letters of Marque as appears 11 H. 6. N. 34. Parl. Rot. A fortiori A Peace after Proclamation thereof and a Supersedea sunder the Great Seal will abolish and
undertakes to Indempnifie and discharge the States-General and their Subjects concerning the same I. It is therefore humbly proposed That His Majesty should in lieu thereof grant and assign the 4 and ½ per cent arising out of the Barbadoes and the Careebe Islands and the wast Lands there to certain Trustees for the use and benefit of William Courten Grand-child and Heir of Sir William Courten and the Creditors of his Father and Grand-father who were the Original Proprietors of the Island of Barbadoes whereof they were dispoiled by Iames late Earl of Carlisle and his Adherents to the insupportable Damages of Sir William Courten his Family and Creditors That in Contemplation of Sir Paul Pyndar's great Services and Sufferings for the Crown of England and more particularly for the vast sums of Money lent to the late King Charles I amounting to the sum of One hundred and thirty thousand Pounds upon the Allom-Farm Sugar-Farm Collectors of the Papists Compositions in the Northern Counties and other Branches of the Revenue which were diverted in the late troublesom times to other uses leaving Sir Paul Pyndar's Assignments unsatisfied and many of his Creditors undone II. It is therefore humbly proposed That there may be a Privy-Seal granted for Fifty thousand Pounds upon the Reference from His Majesty that lies before the Lords Commissioners of the Treasury to be raised out of the said Papists Estates at the instance and Petition of Richard Powel Esq and Nathaniel Hill Gent. upon their old Compositions in the eleven Northern Counties as they paid under the Collection of Thomas Viscount Wentworth in the year 1638. which they are willing now to satisfie accordingly That whereas there are divers great Debts and Sums of Money owing and resting in the hands and posessions of the Sons Heirs and Executors of Jacob Pergens of Amsterdam and Peter Boudaen of Middleburgh in Zealand that belongs to the Estates of Sir William Courten and Sir Paul Pyndar upon Bills of Exchange Obligations for Money lent and private Contracts in Trade and Merchandizing amounting to the sum of One hundred and twenty thousand Pounds and upwards Whereupon there are Actions depending in the ordinary Courts of Iudicature in Holland and Zealand ready for Sentences and final Decrees wherein Iustice is positively denyed upon vain pretences of extinguishments and mortifications by Treaties of common Amity and Alliance III. It is most humbly proposed That His Majesty would be graciously pleased effectually to recommend the Petition of the Creditors that lies before the Lord Conaway to that purpose for speedy satisfaction to be made therein for relief of His most Oppressed Subjects POSTSCRIPT KInd Reader before you come to peruse the Answer to the Lord Chancellor's Arguments when his Lordship gave that hasty Iudgment for the King upon the Scire facias and Pleadings relating to the Letters Patents for Reprizals without hearing Counsel of the other side It 's necessary that you should first read the Abstract of the Scire facias brought by Sir Robert Sawyer His Majesty's Attorney-General and the Plea thereunto The Demurrer and Rejoynder thereupon being things of form and course to bring the whole matter in Issue are omitted herein for Brevity-sake The Plea being filed in Easter-Term 1681. lay dormant until Easter-Term 1682. Then the Demurrer was brought in generally that the Plea was not sufficient in Law c. Whereupon the Defendents persisting in their Rejoynder that it was the Record was made up and read in Court accordingly An Abstract of the Scire facias returned into the Pety-Bag-Office rendred out of Latine into English CHARLES the second by the Grace of God of England Scotland France and Ireland King c. To the Sheriff of Middlesex greeting Whereas by our Letters Parents under Our Great Seal dated the 29th of May in the 17th year of Our Reign for restitution to be made to Charles then Earl of Shrewsbury and others for certain Ships Goods and Merchandizes therein mentioned that were unjustly taken and detained from them by the Subjects of the States-General of the United Provinces We gave License and Authority to Sir Edmond Turnor Knight and George Carew Esq their Executors Administrators and Assigns on the behalf of themselves and others to set forth several Ships and Pinnace's to Sea from time to time to take and seize the Ships Goods and Merchandizes of the said States and their Subjects and to detain and keep the same as lawful Prize until the said Turnor and Carew shall have recovered the Money in the saeid Letters Patents mentioned with their Costs and Damages as by the said Letters Patents with the special Clauses and Provisoes therein contained may appear With this that by Articles of Peace and Amity between Vs and the said States-General at Breda July 21. 1667. in the 19th year of Our Reign and ratified under Our Great Seal Aug. 24. following It was agreed and concluded that all Letters of Reprizals Marque and Counter-marque general and special should be inhibited and revoked so that the Subjects of either Party should not exercise any Hostility or Violence afterwards upon any pretext or colour whatsoever And by other Articles of Peace and Amity between Vs and the said States concluded at Westminster Febr. 9. in the 26th year of Our Reign and ratified under Our Great Seal on the 28th of the same month and proclaimed accordingly that the Treaty made at Breda was renewed and confirmed And that further by Our Letters Patents dated June 6. in the 32d year of Our Reign We had superseded revoked and made null and void the said Letters Patents bearing date May 19. in the 17th year of Our Reign as aforesaid And that all and every the Powers Authorities Clauses Commissions Grants and Licenses in the said Letters Patents confirmed to the said Turnor and Carew were thereby made null and void and of no effect in the Law Wherefore to the end that the Treaties of Peace and Amity between Vs and the States might be kept firm and that a further remedy might be provided for that purpose We command you by good and lawful men of your Bailywick to summon the said Sir Edmond Turnor and George Carew to be and appear before Vs in Our High-Court of Chancery 15 days after Easter to shew cause if they can why the Letters Patents aforesaid should not be brought into Chancery and the Enrollment thereof cancelled and made null and void Witness Our Self at Westminster the 12th day of February in the 33d year of Our Reign By virtue of which Writ the said Sir Edmond Turnor and George Carew being summoned and the said Writ returned by Slingsby Bethel and Henry Cornish Esqs Sheriffs they appeared and pleaded in Easter-Term accordingly as follows An Abstract of the Plea filed in the Pety-Bag-Office in Easter-Term 1681. THe aforesaid Sir Edmond Turnor and George Carew by Matthew Pyndar Esq their Attorney comes and defends the force and injury c. craving Oyer of the Letters Patents and pleaded the