and condemnation made in the Admiralty as lawful prize none but English and Irish Subjects in the Plantations are to be accounted English If the Master shall have freight from Port to Port within the Realm he ought to have Warrant for the same on pain of forfeiture of the goods and he is to take forth a Cockquet and become bound to go to such Port designed for and to return a Certificate from the chief Officers of that port where the same was designed for and discharged within 6 months from the date of the Cockquet But from the Netherlands or Germany there may not be imported no sort of Wines other then Rhenish Spicery Grocery Tobacco Pot-ashes Pitch Tar Salt Rozin Deal-boards hard Timber or Olives Oyl in any manner of Ships whatsoever It might not seem impertinent that this latter part which is abridged as in reference to matters publique should be inserted for that sometime it may happen that an honest and well meaning Master or Skipper might innocently involve and hazard the loss of his Ship by committing acts against Lawes positive and prohibitory and though Masters and Marriners qua tales be not so exquisite as to know all that does belong to their duties or at least that which the Law layes incumbent on their shoulders yet for that most of them have some small glimmerings of the same that such hints in matters publique as well as private may not onely be of some advantage to them but likewise to Merchants who alwayes upon the miscarriages of the Masters prove the greatest sufferers the offenders for the most part proving not sufficiently solvant CHAP. III. Of Marriners their several Offices and Immunities And of Barratry committed by them I. The several Maritime Officers a Shipboard and their Charges and Duties II. Of the Masters power and authority over them as in relation to punishing or otherwise III. The duty that Marriners owe to each other and they to the Ship IV. Their attendance requisite when laded and if detriment where to be responsible V. Where Accidents befall them where they ought to be look't after and at whose costs VI. The Marriners Oath where requisite to the discharging of the Master VII What Accidents does destroy and what not their wages VIII Where they may joyn all in a Suit for the recovery of their Wages and where not IX Of their wages where lyable to answer damage X. Where they absolutely lose their wages XI Of Money or Goods taken up by a Marriner where it shall be debt and where a discount of his wages XII And of their becoming lyable to correction XIII Barratry in the Marrâ—…ners the reason why the Law imputes Offences in them to be answered by the Master XIV In what cases the Master shall become lyable for the actions of his Marriners XV. Of Goods purloyned before they are brought a Shipboard where the Master is bound to answer and where not XVI Of the Antiquity of such Custome XVII Of Goods brought secretly in a Shipboard if purloyned where the Master is not made lyable XVIII Of Caution or forewarning where the same shall excuse the Master XIX Where the Master shall be lyable notwithstanding such Caution I. THe Persons Ordinary for sayling in Ships have divers Denominations The first which is the Master known to us and by most Nations both now and of old and especially by the Roman Lawes Navicularius or Magister Navis in English rendred Master or Exercitor Navis in the Tutonique Skipper by the Grecians Nauarchus or Nauclerus by the Italian Patrono But this is onely to those Vessels that are Ships of Burden and of Carriage For to Ships of Warr the principal there is commonly called Commander or Captain The next in Order of Office to the Master is he who directs the Ship in the Course of her Voyage by the French called Pylott by the English and Flemming Steirsman by the Romans Gubernator by the Italians Nochiero Pilotto and Nauarchus as Gerretus writes The third is esteemed the Master's Mate or Companion chiefly if the Master be Steers-man himself of old by the Grecian and Roman called Proreta his Charge is to command all before the Mast. His Successor in order is the Carpenter or Shipwright by those two Nations of old called Naupegus by the latter by the first Calaphates from the Loyns of one of that Rank sprang that great Emperour Michael sirnamed Calaphates who denied not to own the quality of his Father among his Regal Titles The very name Calaphate the Venetian and Italian still use to this day The next who succeeds him in Order is he who bears the Charge of the Ships Boat by the Italians called Brachierie by the Grecians and Romans Garabita from Carabus which denotes the Boat of a Ship The Sixth in Order especially in Ships of Burden is the Clerk or Purser by the Italian called Scrivano whose duty is the registring and keeping the Accounts of all received in or delivered out of the Ship for all other Goods that are not by him entred or taken into charge if they happen to be cast over-board in storm or are stolne or imbezled the Master answers them not there being no obligation on him by Law for the same his duty is to unlade by day not night The 7th a most necessary Officer as long as there are aboard bellies sharp stomachs and provision called the Cook The 8th is the Ships Boy who keeps her continually in Harbours called of old by the Grecians Nauphylakes by the Italians Guardiano These persons are distinct in offices and names and are likewise distinguished in their hyres and wages The rest of the Crew are under the common name of Marriners by the Romans called Nautas But the Tarpollians or those Youths or Boyes that are Apprentices obliged to the most servile duties in the Ship were of old called Mesonautae II. The Master hath the supream Rule a Shipboard and by that means his power and authority is by Law much countenanced especially in the keeping his Crew in peace so long as they eat his bread and if a Marriner shall happen to be bruised or hurt in doing his duty and service the Master is to take care that he be carefully look't after in order to the procuring his recovery and if it be occasioned by the miscarriage of another a shipboard he may refund the damage out of his wages but still remembring who gave the first assault If it happens that the Master commands his Boat to be manned out and it so happens that the same is out of Order or unfit to take the Sea the Tewes or other accoutriments being impotent if the Marriners happen to be drowned the Master is to repay one whole years hyre to the Heirs of the drowned Therefore Masters ought carefully to view and see that the Boat be fit for men to trust their lives in upon his command If a Marriner shall commit a fault and the
the enemy with Goodsprohibited as afore such prises were possessions most noble but the Goods Ships and lives of the innocent peaceable traders to be exposed to rapine and spoil renders them worse then the Roman Lictors by how much 't is to kill without cause Heads Men executing the guilty they the guiltless It was a high necessity that enforced the English to commissionate such the number of her then enemies covering the Sea like the Aegyptian locusts it were well they were rejected by consent or if allow'd off not subject to Quarter when taken by Ships of War A trade that St. Paul never heard of when he said Who goeth to War at his own charge CHAP. IV. Of Pyracy I. Pyrats what II. Of the duty incumbent on Princes and States as in reference to such and whether lyable for the dammages they commit III. Pyrats where they hold a so ciety how the is same esteemed in Law and of equality held by them IV. Where such may obtain the right of legation V. Ships where lyable for the redemption of the Master who remains as a pledge for the freedom of the Ship and lading and where not VI. An oath given for the discharge of a Ship from Pyrats to pay them a summe whether the same ought to be performed VII Forraigners spoiled by English Pyrats may pâ—…rsue for Justice within the Stat. of 28 H. 8. VIII Where the subjects of a Forraign Nation committing Pyracy may be punished for the same and IX Pyracy committed by the subjects of a Nation in enmity with the Crown of England whether the same is Pyracy or otherwise punishable X. Pyracy committed in the British Seas properly punishable by the Crown of England and not otherwise XI Pyracy committed on the Ocean where the Pyrats may be executed by the Laws of Nature XII Pyrats overcome in the attempt where the Captors may execute them without any Tryall or Judgement XIII Pyrats attempting to rob commit a murder whether all are principal or only the slayer and the rest accessories XIV If the subjects of one Forraign Nation rob another and bring the booty into England whether the party injured may proceed Criminaliter for punishment and Civiliter for restitution XV. Pyrat takes only Men and no part of the lading whether the same be Pyracy XVI Where a Master may commit Pyracy of those things that are committed to his charge and where otherwise XVII Where Pyracy may be though there be nothing taken and where Goods are taken out of a Ship and no body in it XVIII The Captain and Crew of a Vessel that have a Commission of reprise commit Pyracy whether he that procured the same and imployed them ought to answer the damage XIX Of Goods taken and retaken by a Friend whether the property of the prise is altered XX. Of Restitution made of Goods taken and retaken from a Pyrat by the Law Maritime XXI Of Restitution frustrated by the Common Law XXII Of Pyracy as in reference to matterscriminal and how punishable this day by the Laws in England XXIII How the Stat. of 28 H. 8. operates as in reference to Pyracies XXIV Whether depradation in Ports within the Realm remains Robbery at the Common Law or Pyracy by the Law Maritime XXV Where benefit of Clergy is allowable to Pyrats and where not and whether by the pardon of all selonies Pyracy is included XXVI Whether attainder for Pyracy works a corruption of Blood and forfieture of Lands XXVII Goods taken at Sea and brought to Land the parties may be indicted upon the Stat. of 28 H. 8. cap. 15. XXVIII Where the Admiralty claiming with an original or a concurrent Jurisdiction the Common Law will not intermeddle XXIX How satisfaction of old was repaired to persons robbed and how the offenders were punished I. A Pyrat is a Sea Thief or Hostis humani generis who for to enrich himself either by surprise or open force sets upon Merchants and others trading by Sea ever spoiling their lading if by any possibility they can get the mastery sometimes bereaving them of their lives and sinking of their Ships the actors wherein Tully calls Enemies to all with whom neither Faith nor Oath is to be kept II. By the Laws of Nature Princes and States are responsible for their neglect if they do not provide Ships of War and other remedies for the restraining of these sort of Robbers but how far they are bound either by the Civil Law or Common Law of this Kingdom may be some question for it is agreed they are not the cause of the unjust spoil that is committed by them nor do they partake in any part of the plunder but if a Prince or State should send forth Ships of War or Commissions for reprise and those instead of taking prises from the Enemy turn Pyrats and spoil the subjects of other Friends there has been some doubt whether they ought not to make satisfaction to the parties injured in case the offenders should prove unable surely there is no more reason for this latter then the first for seeing Princes and States may give all their subjects power to spoil the Enemy nor is such a Permission any cause why dammage was done to our Friends when even private Men without any such Permission might send forth Ships of War besides it is impossible that Princes or States should foresee whether they would prove such or not nor can it be avoided but we must imploy such otherwise no Army or Fleet could be prepared neither are Kings to be accused if their Souldiers or Mariners wrong their Confederates contrary to their commands though they are oblidged to punish and yeild up the offenders and to see that legal reparation be made out of the Estate of the Pyrats If Letters of Marque or Reprizal be granted out to a Merchant and he furnishes out a Ship with a Captain and Mariners and they instead of taking the Goods or Ships of that Nation against whom their Commission is awarded take the Ship and Goods of a Friend this is Pyracy and if the Ships arrive in * England or in any other of His Majesties Dominions the same shall be seized and the owners for ever loose their Vessel From hence it is that Princes and States are very cautious upon this we call Jure Belli privati how they engage themselves or those who seek reparation for wrongs before received for the person injured governs not the action but devolves the power to some other hired for that particular use whose Law is no more then this There is most right where is most pay or prize Unhappy state of Man whose support and living is maintained only by exposing himself to death a Calling that nothing can make it honest but the highest necessity or pious charity And therefore those that issue forth such sort of Commissions generally take caution for their returning within a convenient time and not to wander in that unhappy condition
it concerns the King and his publique Ministers to protect them and procure their protection in forreign Kingdoms in the nature of an Office and Negotiation of State therefore their Quality is to Mediate and prosecute for them or any one of them at the Councel Table which is as it were a Court of State but when they come to settled Courts which does and must observe essential formes of proceedings scil processus legitimos they must be governed by them And therefore in the Case of Don Diego Serviento de Acuna Ambassador Leger for the King of Spain who libelled in the Admiral Court as Procurator General for all his Masters Subjects against one Jolliff and Tucker and Sir Richard Bingley for two Ships and their lading of divers kinds of the Goods of the Subjects of the King of Spain generally and not naming of them adduct ad Port de Munster in the Preface of the Libel generally against them all and then proceeds and charges them severally thus That Jolliff and Tucker Captain Pyrate in alto Mare bellico dictas Naves aggressi sunt per vim violentiam took them and that they were adductae in partes Hiberniae and that they came to the hands of Sir Richard Bingley and he converted them to his own use not saying where and refuseth to render them being required it was there held that a Prohibition should go for the matter is tryable meerly at the Common Law and that such a Procuration was not good Don Alonso de Valesce Ambassador from the Catholique King attached Tobaccoes at Land here which one Corvero a Subject to the King of Spain brought hither and the Ambassador by his Libel supposed to belong to his Master as Goods confiscated as all others his Goods were Sir John Watts the Plaintiff in the suggestion pray'd a Prohibition which was granted accordingly for the property of Goods here at Land must be tryed by the Common Law however the property be guided and it was likewise rul'd that if any Subject of a Forreign Prince bring Goods into this Kingdom though they were confiscate before the property shall not be questioned but at the Common Law Don Alfonso vers Corvero Mich. 9 Jac. Hob. 212. Hill 9 Jac. upon the like Libell by Don Pedro Surega Ambassador for Spain XII Whether an Ambassador hath Jurisdiction over his own Family and whether his House be a Sanctuary for all that fly into it depends upon the concession of him with whom he resides for this belongs not to the Law of Nations †and it hath been seen that an Ambassador hath inflicted punishment on his own Servants and Vassals as the Muscovite did here in England but for Fugitives that fly into their Houses nay their own Servants if they have greatly offended cannot be drawn forth by force without a demand and refusal which then done it is then become as an offence in them XIII Most certain by the Civil Law the movable Goods of an Ambassador which are accounted an accession to his Person cannot be seized on neither as a pledge nor for payment of a debt nor by Order or Execution of Judgement no nor by the King or States leave where he resides as some conceiue for all coaction ought to be far from an Ambassador as well that which toucheth his necessaries as his Person that he may have full security if therefore he hath contracted any debt he is to be called upon kindly and if he refuses then Letters of Request are to go to his Master so that at last that course may be taken with him as with Debtors in another Territory to some this may seem hard yet Kings who cannot be compelled want not creditors but the Lord Coke seems to be of another opinion for as to Contracts and Debts that be good Jure Gentium he must answer here XIV If an Ambassador commits any private outrage against one of the Princes Subjects with whom he resides unless it be to defend the Dignity of his Charge or of his Master it has been conceived by some not to be justifiable before the Prince with whom he resides for say they there is a great difference between the Dignity and Authority of the Prince in the Countrey of another Soveraign for say they he may well retain his Dignity but not his Authority usually injuries of that nature being done they have admitted debates at a Councel of State where the Soveraign with whom the Minister of Stare hath resided being satisfied that reparation ought to be made to the party injured he hath been ordered or at least requested to comply with the same XV. But on the other hand if any private outrage be committed by the Subjects of that Prince with whom he resides upon his Person the offenders may be subjected to punishment and the Queen of Sweden having made the Incomparable Grotius after he had escaped by Providence out of Prison by a greater from his Country-Men her Ambassador for that Crown with Lewis the 13 th with whom he resided at Paris coming one day from St. Germans the Secretary of Ceremonies being in the Coach with him it chanced that in one place as they passed a great number of People were in the way seeing of an execution his Postillion and Coach-man driving boldly through the company the Archers then attending the execution with short pieces concerned somewhat angerly that the execution was disturbed made after the Coach shot his Postillion and Coach-man and through the Coach even through his hat the matter coming to be examined the King ordered 3 or 4 of them to be hang'd but that Good Man first pardoned them himself and then obtained the King's XVI The Republique of Venice imployeth generally more Ambassadors abroad then any other State and they are as other Princes be Ordinary and Extraordinary the Commission of the Ordinary continueth for 3 years but he which resides at Constantinople is not call'd Ambassador but Bailio residing there perpetually and that Republique allowes him a greater provision to support his Grandeur then to any other and by the Laws of Venice whatsoever he expends is allowed him upon his accounts without any examination the which no other of their publique Ministers of State have like priviledge By the Laws of Venice there can be no Extraordinary Ambassador imploy'd unless they have been Ambassadors formerly and upon their return are strickly examined of their comportment in their Legation and are to discover what Presents they have received from the Prince or State to whom they are sent the concealment of which is of a dangerous consequence Nor may any of their Ambassadors receive any preferment from any other State during their Legation The Patriarch of Aquilia dyed and Hermolao Barbaio being there Ambassador for that Republique the Pope conferred on him that Ecclesiastical Dignity and made him a Cardinal which being known at Venice notwithstanding he was a Person of great desert
his Condition considered in reference to his Interest and Authority generally II. Of Goods lost or imbezelled or any other detriment happens in a Port who shall answer III. The Duty of Masters of Ships as if they shall sâ—…t Sayl after an Imbargo who shall answer IV. And of faults ascribed to him before departure in Tempestuous weather staying in Port. c. V. Over-charging or over-lading the Ship above the birth-mark or receit of such persons a Ship-board as may hazard the Lading VI. Of Lading aboard in the Ships of Enemies his own proving disabled VII Of shipping of Goods elsewhere then at the publique Ports or Keyes and of taking in prohibited Goods VIII Of wearing unlawful Colours or Flaggs and of yielding up his Ship Cowardly if assaulted where lyable and where excused IX Of carrying fictitious Cocquets and Papers and refusing payment of Customes and Duties X. Of setting Sayl with insufficient Tackle and of taking in and delivering out with the like and of his Charge of Goods till safely delivered XI Of departing without giving Notice to the Customer XII Of Faults committed by Masters and Skippers at Sea XIII Rules in Law in the Charging him for Reparation of Damage XIV Of the Power and Authority that the Master hath in disposing Hipochicating or pledging the Ship Furniture and Lading XV. Where Masters are disabled though in necessity to Impawn the Vessel XVI Where they may dispose of Vessel and Lading and where not XVII What Vessels and Marriners the Master must have for Importing in or Exporting out of his Majesties Plantations in Asia Affrica and America XVIII What Ships may go from Port to Port in England XIX Ships not to import the Goods of any Country but of that from whence they are brought XX. What time the Master shall be coming up after arrived at Gravesend or at any other Port within the Realm in order to his discharge XXI Of going from Port to Port within the Realm how provided XXII Of Goods prohibited to be imported from Netherlands or Germany in any Ships whatsoever I. A Master of a Ship is no more then one who for his knowledg in Navigation fidelity discretion hath the Government of the Ship committed to his care and management and by the Common Law by which properties are to be guided he hath no property either general or special by the constituting of him a Master yet the Law looks upon him as an Officer who must render and give an account for the whole charge when once committed to his care and custody and upon failer to render satisfaction and therefore if misfortunes happens if they be either through negligence wilfulness or ignorance of himself or his Mariners he must be responsible II. If the fault be commited in any Port Haven River or Creek or any other place which is infra Corpus Comitatus the Common Law shall have Jurisdiction to answer the party damnified and not the Admiralty but if the same be committed super altum mare the Admiralty shall have Jurisdiction of the same yet if it be on a place where there is divisum imperium then according to the flux or reflux the Admiralty may challenge the other of Common right belonging to the Common Law according to the resolution given And therefore so soon as Merchandises and other Commodities are put aboard the Ship whether she be riding in Port Haven or any other part of the Seas he that is Exerciter Navis is chargeable therewith and if the same be there lost or purloyned or sustaine any damage hurt or loss whether in the Haven or Port before or upon the Seas after she is in her Voyage whether it be by Marriners or by any other through their permission he that is Exercitor Navis must answer the damage for that the very lading of the goods aboard the Ship does Subject the Master to answer the same and with this agrees the Common Law where it was adjudged that goods being sent aboard a Ship and the Master having signed his Bills of Lading for the same the goods were stowed and in the night divers persons under the pretence that they were Press Masters entered the Ship and rob'd her of those goods the Merchant brought an action at the Common Law against the Master and the Question was Whether he should answer for the same for it was alledged on his part That there was no default or negligence in him for he had a sufficient guard the Goods were all lockt up under hatches the Theeves came as press-Press-Masters and by force robb'd the Ship and that the same was vis major and that he could not have prevented the same And lastly That though he was called Master or Exercitor navis yet he had no share in the Ship and was but in the nature of a Servant acting for a Salary But notwithstanding it was adjudged for the Plaintiff for at his peril he must see that all things be forth-coming that are delivered to him let what accident will happen the Act of God or an Enemy onely excepted but for Fire Theeves and the like he must answer and is in the nature of a Common Carryer and that though he receives a Sallary yet he is a known and publique Officer and one that the Law looks upon to answer and that the Plaintiff hath his Election to charge either Master or Owners or both at his pleasure but can have but one satisfaction If a Master shall receive Goods at the Wharf or Key or shall send his Boat for the same and they happen to be lost he shall likewise answer both by the Maritime Law and the Common Law III. If Goods are laden a board and after an Embargo or Restraint from the Prince or State he breaks ground or endeavours to sayl away if any damage accrues he must be responsible for the same The reason is because his Freight is due and must be paid nay although the very Goods be seized as bona contra bandos IV. He must not sayl in Tempestuous weather nor put forth to Sea without having first consulted with his company Nor must he stay in Port or Harbour without just cause when a fair wind invites his departure V. He must not over-charge or lade his Ship above the birth-mark or take into his Ship any persons of an obscure and unknown condition without Letters of safe conduct VI. Nor ought he to lade any of his Merchants Goods aboard any of the Kings Enemies Ships admitting his own Vessel leaky or disabled without Letters of safe Conduct otherwise the same may be made prize and he must answer the damage that follows the action Nor shall he come or sneak into the Creeks or other places when laden homewards but into the Kings great Ports unless he be driven in by Tempest for otherwise he forfeits to the King all the Merchandize and therefore must answer VII Nor ought he
up he must bear his equal share and proportion with the rest The Master cannot on every case of necessity impawn the Vessel or Furniture for if she be Freighted and he and the Owners are to joyn in the laying in of the provisions for the Voyage and parhaps he wants money a great sign of necessity yet can he not impawn the Vessel or Furniture any other or further then for his own part or share in her the which he may transfer and grant as a man may do an 8th or 5th part in Lands or Houses But such obligation of the Vessel must be in forreign parts or places where the calamity or necessity is universal on the Vessell XVI If the Vessel happens afterwards to be wreckt or cast away and the Marriners by their great pains and care recover some of the ruines and lading the Master in that case may pledge the same the produce of which he may distribute amongst his distressed Marriners in order to the carrying them home to their own Countrey But if the Marriners no wayes contributed to the Salvage then their reward is sunk and lost with the Vessel But if there be any considerable part of the lading preserved he ought not to dismiss his Marriners till advice from the Laders or Freighters for otherwise perchance he may be made lyable If Merchants Freight a Vessel at their own charges and set her to Sea and then happens afterwards to be Weather-bound the Master may impawn either Ship or Lading at his pleasure or at least such as he could conveniently raise moneys on rather then see the whole Voyage lost And if he cannot pawn the Lading he may sell the same that is so much as is necessary in all which cases his act obliges However Orders and Instructions are as carefully to be look'd upon and followed as the Magnate XVII He is not to Import into or Export out of any the English Plantations in Asia Affrica or America but in English or Irish Vessels or of the Vessels built and belonging to that Country Island Plantation or Territory The Master and 3 fourths of the Marriners to be English upon forfeiture of Ship and Goods And if otherwise they are to be look't upon as Prize and may be seized by any of the Kings Officers and Commanders and to be divided as Prizes according to the Orders and Rules of the Sea All Goods of the Growth of his Majesties Plantations are not to be imported into England Ireland or Wales Islands of Jersey or Guernsey but in such Vessels as truly belong to Owners that are of England Ireland Wales Jersey or Guernsey and three fourths at least of the Marriners are to be English upon forfeiture of Ship and Goods The Goods and Wares of those Plantations and brought in such manner as aforesaid must be brought from those very Countries of their several productions and growths or from the Ports where they are usually shipped out on forfeiture of Ship and Goods XVIII No Ship to go from Port to Port in England Ireland Wales Jersey or Guernsey or Berwick unless the Owners are Denizens or Naturalized and the Master and 3 fourths to be English All Owners must swear that their Vessels or Ships are their own proper Ships and Vessels and that no Forreigner has any share or part in her and must enter the same and that she was bought for a valuable consideration Bona fide Nor to bring in any goods from any place but what are of the growth of that very Country or those places which usually are for the first Shipping on pain of forfeiture of their Vessel and Furniture This does not extend but Masters may take in goods in any part of the Levant or Streights although they are not of the very growth of the place so that they be imported in English Ships 3 fourths English Marriners So likewise those Ships that are for India in any of those Seas to the Southward and Eastward of Cabo bona Speranza although the Ports are not the places of their very growth Any people of England may import the Master and Marriners 3 fourths English any goods or wares from Spain Portugal Azores Madera or Canary Islands Nay in Ships that are not English built Bullion may be imported so likewise in those that are taken by way of Prize Bona fide But Sugars Tobacco Cottens Ginger Indicoes Fustick or any other dying Wood of the growth of his Majesties Plantations are to be Shipped carryed or conveyed from any of the English Plantations are to be carryed to no place in the world but are to come directly for England Ireland Wales or Barwick upon pain of forfeiture of Ship and goods and the Master is to give bond with one Security in a Thousand pound if the Ship be under the burden of a 100 Tuns and 2000 l. if above that upon Lading he brings his Ship directly into England Ireland Wales or Berwick the danger of the Seas excepted so likewise they are to do the same for the Ships that shall go from the Plantations at the Plantations to the Governour upon forseiture of the Ship and Goods XX. When the Master shall arrive at Gravesend he shall not be above 3. dayes coming from thence to the place of discharge nor is not to touch at any Key or Wharfe till he comes to Chesters Key unless hindred by contrary Winds or draught of Water or other just impediment to be allowed by the Officers And likewise he or his Purser are there to make Oath of the Burthen Contents and Lading of his Ship and of the marks number contents and qualities of every parcel of Goods therein laden to the best of his knowledge also where and in what Port she took in her Lading and what Country built and how manned who was Master during the Voyage and who the Owners And in out-Ports must come up to the place of unlading as the condition of the Port requires and make Entries on pain of 100 l. Nor is such Master to lade aboard any Goods outwards to any place whatsoever without Entring the Ship at the Custome-House of her Captain Master Burthen Guns Ammunition and to what place she intends and before departure to bring in a Note under his hand of every Merchant that shall have layd aboard any Goods together with the marks and numbers of such Goods and be sworn as to the same on pain of 100 l. No Captain Master Purser of any of his Majesties Ships of Warr shall unlade any Goods before Entry made on pain of 100 l. Note There is a List of all Forraign built Ships in the Exchequer and that no Forraign Ship not built in any of his Majesties Dominions of Asia Affrica or America after 1. Octob. 1662. and expressly named in the List shall enjoy the Priviledges of a Ship belonging to England or Ireland although owned and manned by English except onely such as are taken by way of reprize
them forth-comeing The Master is not there held responsible in case of a loss especially if there be any thing of an agreement thereunto XIX But if Goods shall be sent aboard a Ship and the Master shall appoint a Cabin for the same and deliver the Key to the Lader and tell him he will not be responsible if a loss happens yet if the Goods are stole he must notwithstanding make satisfaction By the Common Law it shall bind an Inn-keeper Note That Goods once delivered to a Master the Cargo is not subject to be attached in his hands nor can any Custome whatsoever support the same for they are in Law as it were bayled to the Ship untill the Freight and all other charges are paid * and very much doubted whether an Attachment can be made in London of any Goods at all lying a Shipboard in the Rives of Thames which though the Port of London notwithstanding Freight and all other charges are paid off CHAP. IV. Of Freight Charter-parties and Demorage I. The various wayes that Ships may be Freighted at this day II. The ancient way of Freighting III. How the same is governed upon the various Contracts and of Accidents happening to Masters or Laders preventing the Voyage IV. Of Ships laded and unladed before the Voyage begun Their becoming disabled viz. perish in the Voyage before the same is compleated V. Of Ships departure considered as in reference to Freight and Damage VI. Of Freight arising on Trading Voyages and lost by contingent actions considered by the Common Law and the Law Maritime VII Of Freight becoming due upon the various wayes of Contract or general where none was agreed for VIII Of Faults arising from the Freighters and of the decease of the Ship as in reference to Freight IX Of Faults of Masters arising from taking in Goods more than were contracted for And of being forc'd into Ports in his passage X. Passengers dying the Shipâ—… title to their Goods and Concerns XI The Ship in construction of Law how far lyable to Freight XII Ships taken and retaken in Warr whether the same destroyes the Contract XIII Goods become lost without fault of the Ship whether Freight becomes due XIV Of Freight contracted with persons deficient XV. Of Ships contracted for by the mouth to be paid at the arrival at a Port Ship is cast away the Goods saved whether the Freight ought to he paid I. IN the Freighting of Ships respect is alwayes had to the Ship it self or else to a certain part thereof Again The Merchants either Freight her by the Month or the Entire Voyage or by the Tun for it is one thing to Freight a Ship and another thing to take certain Tunnage to Freight So also it is one thing to be a Cape-Merchant another to be an under Freighter II. There was of old another way of Freighting which was when the Merchant agreed with the Master for a Sum certain to convoy the Goods ensur'd against all peril such were to be responsible if any detriment or loss happened but that is now become obsolete III. Freight is governed generally by the contract and varies according to the agreement reduced generally into a Writing commonly called a Charter-party executed between the Owners and Merchant or the Master in the behalf of himself and Owners or himself and the Merchant or between them all The Master or Owners generally Covenant to provide a Pylott and all other Officers and Marriners and all other things necessary for the Voyage and for the taking in and delivering out of the Lading If there be an agreement and earnest but no writing if the same be broke off by the Merchant he loseth his earnest but if the Owners or Master repent they lose double the earnest But by the Common Law of England the party damnified may bring his Action of the Case and recover his damages on the agreement If a time is appointed by the Charterparty and either the Ship is not ready to take in or the Merchant not ready to lade aboard the parties are at liberty and the party damnified hath his remedy against the other by Action to recompence the detriment If part of the Lading be a Shipboard and it happens some misfortune may overtake the Merchant that he hath not his full Lading aboard at the time the Master is at liberty to contract with another and shall have Freight by way of damage for the time that those Goods were aboard after the time limited for such agreements are of a Conditional nature precedent a failer as to a compleat Lading will determine the same unless afterwards affirm'd by consent And though it be no prudence for every Merchant or every Master to depart from the Contract if it should so fall out that the Agreement as to the Lading is not performed according to the Charter-party or Agreement seldome ever done if any part be aboard yet it is the highest Justice that Ships and Masters should not be infettered but free for otherwise by the bare lading of a Cask or Bale they might be defeated of the opportunity of Passage or Season of the year So on the other hand if the Vessel is not ready the Merchant may ship aboard in another Vessel the remainder of his Goods and discharge the first Skipper and recover damages against the Master or Owners for the rest And this is grounded upon the like reason as the former And therefore by the Law Maritime chance or some other notorious necessity will excuse the Master but then he loseth his Freight till such time as he breaks ground And till then he sustains the loss of the Ship But if the fault be in the Merchant he then must answer the Master and the Ships damage or else be lyable to entertain the Ships Crew ten dayes at his own Charge but after that then the full Freight and if any damage happens afterwards the Merchant must run the risque of that and not the Master or Owners But by the Common Law so long as the master hath the Goods a shipboard he must see them forth-coming IV. If Goods are fully laded aboard and the Ship hath broke ground the Merchant on consideration afterwards resolves not on the adventure but will unlade again by the Law Maritime the Freight seems deserved But if the Ship in her Voyage becomes unable without the Masters fault or that the Master or Ship be Arrested by some Prince or State in her Voyage the Master may either mend his Ship or Freight another But if the Merchant will not agree to the same then the Freight becomes due for so much as the Ship hath earned For otherwise the Master is lyable for all damage that shall happen And therefore if that Ship to which the Goods were transladed perish the Master shall answer but if both the Ships perish then is he discharged But if there be extream
necessity as that the Ship is in a sinking condition and an empty ship is passing by or at hand he may translade the Goods and if that Ship sink or perishes he is there excused but then it must be apparent that that Ship seem'd probable and sufficient V. If a set time be fixed and agreed upon between the Merchant and the Master wherein to begin and finish his Voyage it may not be altred by the supra Cargo without special Commission for that purpose If a Master shall weigh Anchor and stand out to his Voyage after the time covenanted or agreed on for his departure if any damage happens at Sea after that time he shall refund and make good all such misfortune If it is agreed that the Master shall sayl from London to Leighorne in two moneths and Freight accordingly is agreed on if he begins the Voyage within the two months though he does not arrive at Leighorne within the time yet the Freight is become due VI. If a Ship is Freighted from one Port to another Port and thence to a third fourth and so home to the Port from whence she first sayled commonly called a trading Voyage this is all but one and the same Voyage so as it be in conformity to the Charterparty A Merchant agrees with a Master That if he carries his Goods to such a Port he will then pay him such a Sum in the Voyage the Ship is assaulted entred and robb'd by Pyrats and part of her Lading taken forth and afterward the remainder is brought to the Port of discharge yet the sum agreed upon is not become due for the Agreement is not by the Master performed But by the Civil Law this is vis major or casus fortuitus there being no default in the Master or his Marriners and the same is a danger or peril of the Sea which if not in Navall Agreements exprest yet is naturally implyed For most certain had those goods which the Pyrats carried away in stress of weather Navis levandae causa been thrown over-board the same would not have made a disability as to the Receipt of the sum agreed on for by both the Common Law and the Law Maritime the act of God or that of an Enemy shall no wayes work a wrong in actions private VII If a Ship be Freighted by the Tun and she is full laded according to the Charterparty the Freight is to be paid for the whole otherwise but for so many Tun as the Lading amounted to If Freight be contracted for the Lading of certain Cattle or the like from Dublin to West-Chester if some of them happen to dye before the Ships arrival at West-Chester the whole Freight is become due as well for the dead as the living But if the Freight be contracted for the Transporting them if death happens there arises due no more Freight then onely for such as are living at the Ships arrival at her Port of discharge and not for the dead If the Cattle or Slaves are sent aboard and no agreement is made either for lading or transporting them but generally then Freight shall be paid as well for the dead as the living If Freight be contracted for the transporting of Women and they happen in the Voyage to be delivered of Children on Ship-board no Freight becomes due for the Infants The Charterparty does settle the Agreement and the Bills of Lading the contents of the Cargo and binds the Master to deliver them well conditioned at the place of discharge according to the contents of the Charterparty or Agreement and for performance the Master obliges himself Ship Tackle and Furniture to see the same done and performed If Goods are sent aboard generally the Freight must be according to Freight for the like accustomed Voyages If a Ship shall be Freighted and named to be of such a Burden and being Freighted by the Tun shall be found less there shall no more be paid than onely by the Tun for all such Goods as were laded aboard If a Ship be Freighted for two hundred Tuns or thereabouts the addition of thereabouts is commonly reduced to be within 5. Tun more or less as the moiety of the number Ten whereof the whole number is compounded If a Ship be Freighted by the great and the burden of it is not exprest yet the sum certain is to be paid VIII If the Ship by reason of any fault arising from the Freighter as lading aboard prohibited or unlawful Commodities occasions a detention or otherwise impedes the Ships Voyage he shall answer the Freight contracted and agreed for If a Ship be Freighted out and in there arises due for Freight nothing till the whole Voyage be performed So that if the Ship dye or is cast away coming home the Freight outwards as well as inwards becomes lost IX If a Master Freights out his Ship and afterwards secretly takes in other Goods unknown to the first Laders by the Law Maritime he loses his Freight and if it should so fall out that any of the Freighters Goods should for safety of the Ship be cast over-board the rest shall not become subject to the Averidge but the Master must make good that out of his own purse But if the Goods are brought into the Ship secretly against his knowledge it is otherwise and Goods so brought in the same may be subjected to what Freight the Master thinks fitting Consol. del Mere. If the Ship puts in to any other Port then what she was Freighted to the Master shall answer damage to the Merchant but if forc'd in by storm or by Enemy or Pyrats he then must sayl to the Port conditioned at his own costs Generally the touching at several Ports by agreement imports not a diversity but a Voyage entire X. If Passengers having Goods happen to decease a Ship-board the Master is to inventory their concerns and the same may a year keep and if none claym the same the Master becomes Proprietor defeazeable but the Bedding and Furniture of the parties become the Master and his Mates and the clothing are to be brought to the Ship-Mast head and there praised and distributed amongst the crew as a reward for their care of seeing the body put into the Sea XI The Lading of the Ship in construction of Law is tacitly obliged for the Freight the same being in point of payment preferred before any other Debts to which the Goods so laden are lyable though such Debts as to time were precedent to the Freight for the Goods remain as it were bayled for the same nor can they be Attached in the Masters hands though vulgarly is conceived otherwise Ships deserve wages like unto a Labourer and therefore in the eye of the Law the actions touching the same are generally construed favourably for the Ship and her Owners And therefore if 4. part Owners of 5. shall make up their Accounts with the Freighters and
receive their proportions yet the fifth man may sue singly by himself without joyning with the rest and this as well by the Common Law as the Law Maritime XII A Ship in her Voyage happens to be taken by an Enemy afterwards in Battle is retaken by another Ship in Amity and restitution is made and she proceeds on in her Voyage the Contract is not determined though the taking by the Enemy divested the property out of the Owners yet by the Law of Warr that possession was defeazeable and being recovered in Battel afterward the Owners became re-invested so the Contract by fiction of Law became as if she never had been taken and so the entire Freight becomes due XIII If Freight be taken for 100 Tuns of Wine and 20 of them leak out so that there is not above 8. inches from the Buge upwards yet the Freight becomes due One reason is because from that gage the King becomes entitled to Custome but if they be under 8. inches by some it is conceived to be then in the Election of the Freighters to fling them up to the Master for Freight and the Merchant is discharged But most conceive otherwise for if all had leaked out if there was no fault in the Master there is no reason the Ship should lose her Freight for the Freight arises from the Tunnage taken and if the leakage were occasioned through storm the same perhaps may come into an Averidge Besides In Burdaux the Master stowes not the Goods but the particular Officers appointed for that purpose quod Nota. Perhaps a special convention may alter the case Most certain if a Ship Freighted by the great be cast away the Freight vanishes but if by the Tun or Pieces of Commodity and she happens to be cast away afterwards part is saved doubted whether pro rata she ought not to be answered her Freight XIV If a Merchant takes Freight by contracting with a Marriner that is not a Master he must be contented to sit down without any remedy against the Owners but perhaps such a Marriner for such act may subject himself to an action But if there be a fault committed by a Marriner which was hired or put in by the Master or Owners there for reparation the Owners become lyable XV. The Master is not bound to answer Freight to the Owners for passengers if they are found to be unable to pay If a Ship by Charterparty reciting to be of the Burden of 200 Tuns is taken to Freight for a sum certain to be paid at her return the sum certain is to be paid though the Ship amounts not to that Burden If a Ship is Freighted after the rate of 20 l. for every moneth that she shall be out to be paid after arrival at the Port of London the Ship is cast away coming up from the Downs but the Lading is all preserved yet the Freight is become due for the money arises due monthly by the Contract and the place mentioned is onely to shew where payment is to be made for the Ship deserves wages like a Marriner who serveth by the month and though he dyes in the Voyage yet his Executors are to be answered pro rata Besides the Freight becomes due by intendment on the delivery or bringing up of the Commodities to the Port of London and not of the Ship If the Master enters into a Charterparty for himself and Owners the Master in that case may release the Freighters without advising with the Owners but if the Owners let out to the Freighters such a Ship whereof J. S. is Master though the Master Covenant in the same Charterparty and subscribes yet his Release in that case will not bind the Owners but the Owners release on the other hand will conclude the Master And the reason is for that the Master is not made a proper party to the Indenture And so it was Rul'd where an Indenture of Charterparty was made between Scudamore and other Owners of the good Ship called the B. whereof Robert Pitman was Master on the one party and Vandenstene on the other party In which Indenture the Plaintiff did Covenant with the said Vandenstene and Robert Pitman and bound themselves to the Plaintiff and Robert Pitman for performance of Covenants in 600 l. and the Conclusion of the Indenture was In witness whereof the said Robert Pitman put his hand and seal and delivered the same in an Action of Debt brought upon the Bond for performance of Covenants the Defendant pleaded the Release of Pitman whereupon the Plaintiff demurred And it was adjudged That the Release of Pitman did not barr the Plaintiff because he was no party to the Indenture And the diversity in that case was taken and agreed between an Indenture reciprocal between parties on the one side and parties on the other side as that was for there no Bond Covenant or Grant can be made to or with any that is not party to the Deed but where the Deed indented is not reciprocal but is without a Between c. as Omnibus Christi fidelibus c. there a Bond Covenant or Grant may be made to divers several persons CHAP. V. Of Wreck I. Of Goods Wreckt as in relation to the alteration of the property by the Civil Law II. Of the preservation of Goods Wreckt and the punishment of those that should add misery to the condition of such persons so distressed III. Of Goods Wreckt their preservation according to the Lawes of Oleron and of England and of the punishment of those that shall not make restitution IV. Of contribution where the Ship perishes and the Goods are all saved and where not V. The King of Great Britain's Prerogative as in relation to Wreck and other Royalties of the Sea VI. Of Flotsam Jetsam and Lagan where the King shall have the same and whether by the grant of Wreck the same passes and where a Subject may prescribe VII Of Ships Wreckt and no Creature in them yet no Wreck and of Ships forsaken whether in Law accounted lost or wreckt or neither VIII Of the Sheriffs duty as in relation to Goods wreckt and of Owners their time of claiming their property IX Wreckt Goods not to pay Custome X. Of Wreck in the Isle of Wight not in the Admiral without special words IN matters of Wreck there is as it were a Contract between them which have lost their Goods by such misfortune and them upon whose Lands the Goods and Merchandize are driven that the same be restored to them or those that claym under them And therefore by the Civil Law it is precisely forbid that no man shall meddle with such Goods as are Wreck'd and such as are proved to have stolne any thing thereout are holden for Robbers for that such Goods being cast on Land and recovered out of the Sea remains still his who was the owner thereof and discend upon his Successor neither Escheat to the King
de Ducatu Aquitaniae reddendo Regi heredibus suis 2. s. de quolibet dolio vini ducti per eosdem infra Regnum Angliae vel potestate Regis All Merchants Strangers in consideration of the Grant to them by the King of divers Liberties and Freedomes Concesserunt de quolibet dolio vini quod adducent vel adduci facerent infra Regnum c. solvent nobis heredibus nostris nomine Custumae duos solidos c. It is called Butlerage because the Kings chief Butler doth receive it And the double value of these Duties is made penal if any person customes Goods in another mans name whereby to defraud the King of Prisage and Butlerage IX Breaking of Bulk is that which entitles the King to the Duty for if a Merchant Imports Wines to the number of 20 Tuns yet if he unlades but part as 9. or 4. Tun yet the King shall have the entire Prisage and though the Custome seems to declare that the taking must be as well before as after the Mast yet is not the Officer tyed to that strictness but may take where he pleases for two Tuns are the Kings due for otherwise he might be cozened the Freighter perhaps lading other Commodities aboard after the Mast. If there be but one Tun taken out yet the Duty must be paid The reason is for that otherwise the Officer should be obliged to travail perhaps all over the Kingdome X. The King granted to a Venetian Merchant that he should be quit did omnibus custumis Subsidijs impositionibus omnibus alijs denariorum summis debitis solubilibus pro quibuscunque Merchandizis importandis and that he should be as free as the Citizens of London In that case it was adjudged in the Exchequer That by that Grant the King did not discharge him of Prisage because the Prisage was not specially expressed in the Grant although that the City of London were by a special Charter freed of Prisage XI The Cinque-Ports are likewise discharged of Prisage CHAP. IX Of Pylots Wharfage Primage Averidge Loadmanage I. Of the Pylots charge till the Ship is brought to her place or bed II. If the Ship is likely to miscarry what the Ships Crew may do at such time III. Of Ignorant Pylots their punishment and if the Ship miscarries who shall Answer IV. Of Wharfage and where the Wharfinger shall answer and where not V. Primage and Petilodmanage where due and for what and if the Ropes break where the Master and where the Wharfinger shall answer VI. Petty Averidge where due and for what and Hatt money VII Loadmanage where due and for what I. BY the Lawes of Oleron after that the Pylot hath brought the Ship to sure Harbour he is no further bound or lyable for then the Master is to see her bed and to her lying and bear all the rest of her Burthen charge and danger except that of the act of God So that before she comes to her place or bed and while she is under the Pylot's charge if she or her Goods perish or be spoyled the Pylot must make good the same II. By the Lawes of Oleron if his fault is apparantly gross that the Ships Crew sees an apparent Wreck they may then lead him to the Hatches and strike off his head But the Lawes of England allow no such hasty execution By the Lawes of Denmark an ignorant Pylot is to pass thrice under the Ships Keel The Master generally in the Charterparty covenants to find a Pylot and the Merchant covenants to pay him his Pilotage III. But if a Ship should miscarry coming up the River under the Charge of the Pylot it has been a Question Whether the Master should answer in case of the insufficiency of the Pylot or whether the Merchant may have his remedy against both It hath been conceived the Merchant hath his Election to charge either and if the Master then he must lick himself whole of the Pylot IV. Wharfage is money paid for landing Wares at a Wharfe or for shipping or taking in Goods into a Boat or Barge they commonly keep Boats or Lighters of their own for the carrying out and bringing in of Goods in which if a loss or detriment happens they may in some cases be made lyable An Action of the Case grounded on the Custome of the Realm was brought against the Defendant Master of a Wharfe for not safe delivering of Goods c. The Case appeared to be thus The Master unladed a Bale of Silk into the Wharfingers Lighter and sent part of his Marriners to convey it ashoare it happened that the Goods were stole The Question was Whether the Wharfinger or the Master should answer Upon a Tryal at Guild-Hall before my Lord Chief Justice Hale it was there Rul'd That the Master was lyable and not the Wharfinger for till they are landed the Master hath them under his power but if goods are to be sent aboard there if they miscarry in their passage the Wharfinger must answer V. Primage and Petilodmanage is likewise due to the Master and Marriners for the use of his Cables and Ropes to discharge the Goods and to the Marriners for loading and unloading of the Ship or Vessel it is commonly about twelve pence per Tun. If the Ropes break in hoysting of Goods out of the Ship into the Lighter or Boat the Master must answer if the Goods be damnified or lost But if the Roapes break at the Crane in taking them out of the Lighter although till they are landed they are not out of the Masters custody yet the Wharfinger shall answer VI. Petty Averidge is another little small Duty which Merchants pay to the Master when they onely take Tunnage over and above the Freight the which is a small recompence or gratuity for the Masters care over the Lading and in the Bills of Lading they are exprest after Freight together with Primage and Averidge accustomed The French Ships commonly term the Gratuity Hatt-Money and our English Merchants pay it our Masters over the Freight it is sometimes more sometimes less two or three Pieces VII Loadsman is he that undertakes to bring a Ship safe through the Haven to the Key or place of discharge and if thorough his ignorance negligence or other fault he suffereth the Ship or Merchandize to perish an Action lyes against him at the Common Law and by some conceived he may be punished in the Admiralty but not in both The Hire is called Loadmanage the which the Pylate receives of the Master for conducting the Ship up the River or into the Port to her convenient Bed If two Ships lye in a Harbour and the Anchor of one is feared may occasion to damnifie the other if after request and refusal and there be probable cause the other may take up the same and let the same down at a further distance and the same is opposed or hindred if
for a detriment that was occasioned purely by the Laders means 2. 7. 15 Attachment Attachment of the Lading cannot be made in the Masters hand 2. 3 18 Attaint The Law takes notice of the person Subject but of an Alien è cont ' 3 2. 2 No corruption of blood upon an Aâ—…tainder of Pyracy 1. 4. 23 26 Barretry BArretry of the Marâ—…iners who shall be responsible for the same 2. 3. 13 Battel Goods or Ships gain'd therein where the Owners are divested of their property 1. 1. 7 But regain'd by a Ship of Warr the Property is preserved 1. 1. 9 Blanks Filling them up against Law 2. 10. 27 Boats Ship Boat not forfeited by the Pyracy of the Ship 2. 1. 8 The Duty of Boats and all other small Vessels in time of Warr and in Battail 1. 14. 24 Bottomery From whence so called 2. 11. 12 Buoyes Not putting them to Anchors subject the Master to punishment and answer the damage 2. 9. 7 Bulk When the same may be broke 2. 15. 1 Butlerage What and when payable 2. 8. 8 Canon CAnon designed for the Relief of a City or Fleet cannot in a Storm be flung over-board 2. 6. 15 Captives Where they may be justly kill'd 1. 14. 12 How that power is governed 1. 14. 17 Where he that dyes in it is supposed to dye before his being taken 3. 1. 2 Children born before their being taken are free 3. 1. 2 Captive General is immediately the Prince's Prisoner 3. 1. 5 Ports and Cinque-Ports Ports in England 2. 14. 18 Free of Prisage 2. 8. 10 Members and Creeks What are meant by them 2. 14. 7 Within the Body of the County 2. 14. 8 Port of London its extent 2. 14. 9 Clergy Not allowable to a Pyrat for Pyracy on the High Sea 1. 4. 23 But in a Creek or Port it is 1. 4. 24 Commanders Their Duties in time of Fight 1. 14. 13 Commissions Commissions awarded to enquire of Depridations 1. 2. 24 And to give satisfaction 2. 4. 28 Commission for Warr in what respect 1. 3. 5 Commissions qualifie the Caption 1. 4. 14 Communion Communion of Pastures in our first Parents 1. 1. 3 Confederates Differences amongst them how determined 1. 8. 4 Confederates how bound to defend each other 1. 7. 9 Of the Succours they are to lend 1. 7. 15 May ayd one another against one anothers Confederates 1. 7. 16 Consanguinity The various degrees of the same 3. 2. 8 In all Collateral descents except between Brother and Brother the half blood does inherit but between them the half blood does impede 3. 2. 8 Contraband Contraband Goods where the same may be seized 1. 1. 15 Contracts Contracts between Princes though by force oblige 1. 8. 9 Contracts between Merchant and Master where valid and where not 2. 4. 3 6 7 Contract is not determined if the Ship be taken by an Enemy and afterwards retaken 2. 4. 12 Contract for Freight cannot be made with a Marriner 2. 4. 14 Charter-parties settle the Agreement and the Bills of Lading the Contents 2. 4. 7 Contracts where they have their inception from Sealing 22. 11. 9 None of the Ancestor can bind the person of the Successor as to point of slavery 3. 1. 7 Contribution Contribution for Moneys lent on Bottomery 2. 11. 10 Contribution the remainder of the Lading are as tacitly obliged to the same as for Freight 2. 6. 7 Two Ships encounter anawares the Contribution is to be proportionable 1. 6. 10 Contribution shall not be made if the Sayls or Masts are broken or lost in the Storm but if cut down otherwise 2. 6. 12 No Contribution but where the Ship arrives in safety ibid. Contribution in cases of Necessity 3. 5. 26 Contribution a main Ingredient in Leagues and how regulated 1. 7. 9 Contribution cannot be had by one whose Goods are taken by Reprizal 1. 2. 23 Contribution where to be made for the Redemption of the Master 1. 4. 5 Contribution may be paid to both parties 1. 12. 6 7 Corporations When introduced for Merchants in England 3. 5. 2 Of those Trading to India from England and Holland 3. 5. 5 Countermand May be made by the drawer at any time before the money becomes due 2. 10. 22 Courts By the Statute of H. 8. Courts may be erected for the Tryal of Pyracy 1. 4. Where the Admiralty hath Jurisdiction of the principal the Courts at Common Law will remit them their Accessory 1. 4. 28 Court appointed for the Trying of Merchant Strangers Causes according to the Custome of Merchants 2. 12. fol. 303 Customes Goods Wreck't pay no Customes 2. 13. 11 Customing Goods in another mans name the penalty 2. 8. 8 The King is entitled to his Duty upon breaking of Bulk 2. 8. 9 Cannot be imposed without Act of Parliament 1. 12. 1 2 3 May be Fermed out 2. 12. 3 The Antiquity of Customers 2. 12. 5 Customes what is meant by the same 2. 12. 6 Of Magna Custuma and for what given ibid. Parva Custuma on what Considerations given 2. 12. 7 How the same is governed 2. 13. 6 7 Câ—…wards To suffer death without mercy 11. 14. 12 15 17 Damage TO be repaired out of his or their Estate that commit an Injury if not then the same becomes a National Debt 1. 2. 12 Denizen The Issue born of English-man on the Body of a Forraigner beyond Seas is a Natural born Subject 3. 1. 8 Denization by Letters Patents of France remove the total disability but in England è cont ' 3. 3. 11 Two Denizon Brothers one purchases Lands and dyes the other may inherit 3. 3. 11 Not capable of Honour ibid. Derelict Cannot be of any Goods cast over-board to lighten the Ship 2. 6. 15 Of places that are possessed one day and abandoned another make not a Derelict 3. 5. 3 Descrters May be slain by any man by the Lawes of Nations 1. 6. 9 12 15 Coward suffers death without mercy 1. 14. 17 Vide Derâ—…lict Disability Ships disabled in Battail are not to be relieved till the Enemy is beaten 1. 14. 16 Disability of the Father hinders not but one Brother may be Heir to the other 3. 2. 8 No disability in an Alien beinging an Action in Auter Droit 3. 2. 9 An Alien Infant disabled to be a Merchant Trader in England 3. 2. 11 Disability not cured in an Ancestor without actual naming them 3. 3. 3 Discipline Orders must be obeyed and they that break them may be punished though the act succeeds well 1. 14. 14 Disclaimer By the Predecessor shall barre the Successor 2. 8. 7 Discent 1. The Rules that govern them 3. 2. 3 2. Discents according to the Canon Law 3. 2. 4 Impeded in an Ancestor from whom and to whom will hinder the discerit 3. 2. 5 Disfranchise The ancient way of compleating the same 3. 1. 9 Cannot now be done to a Freeman without lawful Tryal 3. 1 9 The various wayes now used by the Laws of England 3. 1. 9 Domiâ—…on
obliged to continue Partnership 2. 1. 3 The Master is obligeable by them 2. 1. 4 Not obliged to joyn in an Action 2. 1. 5 Property of the Ship followes the Owners of the Materials not of the Builders if it be built all with their Goods 2. 1. 7 Package ON what the same is to be paid and what Packers are to take 2. 13. 4 Pardon Of Felonies extends not to Pyracy 1. 4. 23 25 Petty Averidge When due 2. 2. 6 Planters Of the Right of Planting 3. 5. 2 3 Where they may dispose of the same by Will 3. 5. 4 Plunder Souldiers so doing may be slain by any man whom they shall attempt 1. 6. 10 Ports What 2. 14. 7 Within the Body of the County 1. 4. 23 Robbery committed in them not Pyracy ibid. Ports of Nations in Amity may deliver Ships brought in there by an Enemy 1. 1. 9 Neuter Ports the peace of them ought to be preserved 1. 2. 17 1. 1. 10 1. 3. 7 Ports not to be visited after a Warr begun by an Enemy 1. 3. 11 Ships driven in by Stress of weather not subject to reprize 1. 2. 1 Peace of them ought to be kept 1. 5. 14 Possession The highest Title that men can pretend to what they enjoy 3. 5. 1 Yielded without fighting to be used civilly 1. 14. 12 Prize Ships may not alwayes be possest 1. 13. 10 Possession of a Ship creates no Title 2. 1. 11 Poundage What and how the same may be levied 2. 11. 10 Prerogative The King hath to dig in any mans ground for Salt-Petre 1. 1. 4 Prescription It s uncertain beginning 1 15. 14 15 Depends not on the Corporeal but Civil possession 1. 5. 13 Availes not in things that have been stolne 1. 4. 20 Prest The punishment of those that run away 1. 6. 7 Vide Marriners Primage When payable 2. 9. 4 Princes Responsible for Injuries publique and in prudence ought to redress Injuries private especially to Forraigners 1. 2. 8 Responsible by the Lawes of Nature for the neglect of suppressing Pyrats 1. 4. 2 Not bound to Treat personally with Ambassadours 1. 7. 4 The death of one determines not the Alliance 1. 7. 6 Their wisdome is to be considered in Leagues 1. 7. 9 Are not to examine one anothers others Title but it 's enough they are in possession 1. 7. 18 Though driven out of their Country may consent that Commerce shall be forbidden to his Subjects 1. 9. 4 The declared will of them cannot make all those of our Acts Sins 1. 12. 8 Nor can their Interdiction if disobeyed when their Subjects are possessed by their Enemy create an offence ibid. One of their Chiefest happinesses is a good General 1. 13. 1 How they govern themselves in Treaties 1. 7. 1 23 Bound to render Honour to their Equal ibid. Peace Ought to be purchas 't at any rate and to be maintained with the greatest Faith 1. 15. 18 Prescription Silences all Tribunals though its Inception is not known 1. 15. 14 It's necessary to have the force of Right 1. 15. 15 Prisage Not grantable away without Act of of Parliament 2. 8. 1 Not due till breaking of Bulk 2. 8. 3 Prisage becomes due if the property be changed though the Goods are not landed 2. 8. 6 Priviledge The Hanse Towns had several and when they determined and upon what occasion 2. 12. 1â—… Charta Mercatoria on what Considerations the same was granted 2. 12. 7 Prize Prize the 10th part justly due to the Admiral 1. 1. 9 Equally divided amongst the Captors 1. 2. 20 Prize Ships their Papers are to be preserved 1. 13. 9 May not alwayes be possest 1. 13. 10 Proclamation Whether necessary before a Warr 1. 1. 14 Having passed where the Goods of Friends may become Prize ibid. Prohibition Goods prohibited may subject the Vessel to a Forfeiture 2. 2. 17 Property When first introduced 1. 1. 3 Where the Property of the Vessel followes the Owners of the Materials 2. 1. 7 The property of the Ship and Goods of a Pyrats becomes his that takes them 1. 4. 11 19 Legalis Captio difference between that and Spoliatio as in reference to the changing of property 1. 1. 9 Cannot be questioned but by the Common Law 1. 10. 11 Can be questioned in the Admiralty if before sale the Ship was sold bona fide 2. 1. 9 Property of Goods altered by being taken and retaken in Warr 1. 4. 19 Property of Goods taken by Pyracy altered by sale in a Market Overt 1. 4. 21 Protection The true Ensign of Liberty 1. 5. 2 What and by whom accepted 1. 8. 2 Protest Subjects every of the Drawers that subscribed to answer the summe drawn 2. 10 16 Protest the use and meaning of the same 2. 10. 31 Pylott When he is discharged of his Duty and how obliged to answer for negligence or wilfulnesse 2. 9. 1 2 3 Pyrats What 1. 4. 1 Improperly called Enemies yet hold an equality 1. 4. 3 Are not to have succour 1. 4. 4 Overcome in the Ocean may be immediately executed by the Lawes of Nature 1. 4. 11 Or brought to a Port and the Judges refuse or the Captors cannot stay without prejudice may be executed 1. 4. 11 Pyrats onely questionable properly in that Country where the Ship is carried 1. 4. 14 Quarter NOt to be given to persons taken in Fire-Ships 1 14. 12 To demand it not repugnant to the Oath called Sacramentum Militare 1. 14. 13 Rebellion IN those that shall not strike to the King of England's Flagg 1. 5. 8 Reception Reception from an Enemy what is gain'd by the same 1. 1. 7 Release Of the Master where it binds the Owners 2. 4. 15 Renunciation of the Lading when it may be 2. 4. 13 17 Relief Appointed for Marriners and maimed Souldiers 1. 14. 28 Religion Whether lawful to plant the same by force of Arms 1. 1. 5 Renegado The Policy of the Turk in making them 3. 1. 6 Cannot be a Witness by the Lawes of any Christian Kingdome 3. 4. 7 Reprizals From whence derived 1. 2. 1 Cannot be against the Goods of Ambassadors 1. 2. 16 Not good without lawful Warrant or Commission 1. 2. 1 Ships taken by virtue of the same divests not the Owners of their property unless carried infra presidia 1. 1. 7 8 The causes precedent before the same are grantable 1. 2. 6 Reprizal Ordinary and Extraordinary by the Lawes of England 1. 2. 7 Persons exempt from the same 1. 2. 16 Reprizals granted and they commit Pyracy they forfeit their Vessel 1. 4. 2 Captains of Ships of Reprizal commit Pyracy cannot oblige the Owners for satisfaction 1. 14. 18 Request Ought alwayes to precede Reprizal 1. 2. 8 â—…etters of Request allot time certain 1. 2. 13 The same being made may sufficiently impower one Nation to execute the Judgments of another 3. 8 Restitution Where the same may be made of Ships regain'd from an Enemy 1. 1. 7 8 Restitution of Ships where the same
little to do with the Compass though he sits still in his place does as much or more than all the other necessary noise in the Ship the comparison is quit of Arrogance for it holdeth in the design it is not meant of the performance And though I well know That those that spend their time in brewing of Books are by Seneca compared to petty Painters that busie themselves in Copying out Originals having this half Verse of Horace often thrown in their Teeth O imitatores Servum pecus Yet I have this hope left That my faults and flawes like those found in the Cutts of Diamonds may at this time the easilier escape under the excellency of their Subject or at least under that of your Charity The Contents of the First Book Chap. Fol. 1. OF Dominion and Property in general and of the causes changing the same by Ships of Warr. 1 2. Of Letters of Marque and Reprizal 14 3. Of Privateers or Capers 25 4. Of Pyracy 33 5. The Right of the Flagg as to acknowledging the Dominion of the British Seas 46 6. Of the Right of Pressing or Seizing of Ships or Marriners for Service publique 62 7. Of Dominion Established by Treaties of Alliance Equal 70 8. Of Alliances unequal and of Protection 83 9. Of Treaties of Truce and Neutrality 89 10. Of the Immunities and Priviledges of Ambassadours and other Publique Ministers of State 93 11. Of the Right of delivering of Persons fled for Protection 107 12. Of Contribution paid by Places Neuter to both Armies in Warr. 114 13. Of the Naval Military part 121 14. Of Salutation by Ships publique and private 147 The Contents of the Second Book 1. OF the various Rights and Obligations of Owners and Partners of Ships in cases private 191 2. Masters of Ships their Actions considered in reference to cases private and publique 196 3. Of Marriners their several Offices and Immunities and of Barratry committed by them 207 4. Of Freight Charter-parties and Demorage 217 5. Of Wreck 226 Chap. Fol. 6. Of Averidges and Contributions 232 7. Of Pollicies of Assurance 239 8. Of Prisage and Butlerage 250 9. Of Pylots Wharfage Primage Averidge and Loadmanage 254 10. Of Bills of Exchange 258 11. Of Moneys advanced by way of Bottomery or Foenus Nauticum 276 12. Of Impositions called Great Customes Petty Customes and Subsidies 288 13. Of Impositions subsequent Conditional temporary c. 313 14. Of Scavage Package Porterage Ports Members Creeks the Port of London and places lawful to lade and unlade 319 15. Provisions and Allowances made notwithstanding the several Clauses in the Acts for the Customes 332 16. Of the Right of Passage of Imposing on the Persons and Strangers for Passage thorow the Seas 344 The Contents of the Third Book 1. OF Freedome Bondage Slavery Exile and Abjuration 385 2. Of Aliens as in reference to their Estates Real and Personal 395 3. Of Naturalization and Denization 405 4. Of Aliens and Tryal per medietatem where allowed and where not 414 5. Of Planters 421 6. Of Merchants 429 7. Of Factors 439 8. Of the Lawes of Nature and of Nations 448 CHAP. I. Of Dominion and Property in generall and of the causes changing the same by Ships of War I. Of Dominion in the primitive state of Man II. That such a Dominion universal might have continued III. Of the causes or change of the same into Dominion peculiar or Property IV. Of things excepted tacitly by the Law of Dominion V. Of Property where the same may be changed against the owner VI. Of War when accounted by the Laws of England VII Of Forraign War and of things justly acquired therein whether Ships or Merchandize VIII Of Restitution where the same by Law may be made of Ships or Merchandize acquired in War IX Of Restitution ex gratia made by the Souveraign of him whose Ships are lost and regain'd afterwards in Battle by Ships of War and of the like by Princes or Republiques in amity X. Of the Assaulting an Enemy in the Ports or Havens of a Nation Neuter whether lawful by the Laws of Nations XI Of Protection given to the Ships of the Enemies being in Port before remaining after War denonnc't XII Of the Goods of Friends found in the Ships of Enemies and of those of Enemies found aboard the Ships of Friends XIII Of the destroying of the Ships of Enemies in general XIV Of interpellation and denunciation whether necessary XV. Of the Goods of Friends that supplyeth an Enemy whether capable of being made prize I. NO sooner had the Eternal Power created Man but he bestowed on him a right over the things of this inferiour Nature nor was his goodness lessened upon the reparation of the World after the Flood all things being then undivided and common to all as if all had one Patrimony since every Man might then take to his use what he pleased and make consumption of what he thought good in his own eyes which use of the universal right was then instead of Property for what any one had so taken another could not without injury take away from him II. Nor was it impossible for that state to have continued if Men through great simplicity or mutual charity had lived together and this is instant in those Americans who through many Ages have lived in that community and custom and the other of Charity which the Essens of old practised and then the Christians who were first at Hierusalem and at this day not a few that lead an assetick life the simplicity of our first Parents was demonstrated by their nakedness there being in them rather an ignorance of vice then a knowledge of Virtue their only business being the Worship of God living easily on those things which the Earth of her own accord brought forth without labour III. Yet in this simple and innocent way of life all Men persisted not but some apply'd their minds to various Arts the most antient of which was Agriculture and Pasture appearing in the first Brothers not without some distribution of Estates and then from the diversity of each Man's actions arose Emulation and then slaughter and at length when the Good were infected with the bad a Gigantick kind of life that is violent but the World being washed by the Flood instead of that fierce life succeeded the desire of Pleasure whereunto Wine was subservient and thence arose unlawful Loves but by that more generous vice Ambition Concord was chiefly broken after which Men parted asunder and severally possess'd several parts of the Earth yet afterwards there remain'd amongst Neighbors a communion not of Cattle but of Pastures because in the small number of Men so great was the latitude of Land that without any incommodity it might suffice to the uses of many untill the number of Men so of Cattle increased Lands every where began to be divided not among Nations as before but among Families an instance of which we have
not so kind to the English when the Dutch Fleet fell into their Road where rid at the same time some English Merchants Men whom they assaulted took burnt and spoil'd for which action and not preserving the Peace of their Port they wereby the Law of Nations adjudg'd to answer the dammage and I think have pay'd most or all of it since But Enemies in their own Ports may be assaulted burnt or destroy'd by the Law of Armes XI If the Ships of any Nation happens to arrive in any of the King of Englands Ports and afterwards and before their departure a War breaks out they may be secured priviledged without harm of Body or Goods but under this limitation till it be known to the King how that Prince or Republique of those whose Subjects the Parties are have used and treated those of our Nation in their Ports But if any should be so bold as to visit our Ports after a War is begun they are to be dealt with as Enemies XII By the Laws of Nations generally all things are the Captors which he takes from his Enemy or which his Enemies gain'd from another by force of Arms so likewise all those Goods that he shall find in his Enemies custody But then it must be apparently manifest and evidently prov'd that it is really the Enemys for if an English-Man should have Goods in the custody of a Dutch Factor at Cales and a War should break out between that Prince and that Republique yet are not the Goods of the English-Man subject to the seizure of the Spaniard it being apparent the owner is not a Subject of their Enemies So likewise if the Goods of Friends are found in the Ships of Enemies this does not ipso facto subject the same to be prize by the Laws of Nations though it be a violent presumption and may justly bear a legal examination till which there may be a securing of the prize till adjudication shall pass So on the other hand if the Ships of Friends shall be fraighted out to carry the Goods of Enemies this may subject them to be prize especially if the Goods shall be laden aboard by the consent or privity of the Master or Skipper though in France they have subjected and involv'd the innocent with the nocent and making both of them prize in the late Flemish Wars with England the Ostenders became obsequious serviceable with their Ships to the Traffick and commerce of both Nations memorable was the action when the War was between the two Republiques Venice and Genoa the Grecian Ships being then imploy'd as those of Ostend were search'd and the Enemies pull'd out but no other matter done however it is most certain let the Commission or Protection of such Ships be what they will if Men will venture to trade under such a cloak it behoves them that the Skipper and his Crew be entirely ignorant for it is his Action that will go far in the freeing or making absolute the prize and Goods so made prize the property is immediately gone and changed be the Owner be who he will he never can claim the same for the Laws of Nations made the Enemies first masters by external Dominion and then by Conquest gave the property to the Captor following that Judgement of the Romans whatsoever they got of their Enemies by valour they would transmit to their Posterity by right XIII 'T is not against nature to spoil the Goods of him whom it is lawful to kill and by the Laws of Nations it is permitted that the Goods of the Enemies may be as well spoiled as taken and Polybius observes that all things of the Enemies may be spoiled their Ships Goods Forts c. XIV And though it may happen sometimes that a War may break out and there may be no public denouncing or proclaiming the same that if a Friend or Neuter should assist an Enemy with Contraband Goods that is Armes c. whether upon such a caption the Goods may be made prize the resolution of which will depend on these Considerations First by Natural Law where either force offer'd is repelled or punishment exacted of one that hath offended there needs no denunciation for Princes are not to stand debating with words or arguments being injured beyond words For War undertaken to resist violence is proclaim'd not by an Herauld but by Nature for it is no more then the invading of one for another or taking of the Goods of the debtor to answer the creditor damage Secondly Interpellation is introduced by the Laws of Nations whereby Princes or Republiques having received injuries may apparently shew that they had no other way to recover their own or that which is due to them for such Interpellation following after injuries committed constitutes that Prince or State in a fault that shall not render satisfaction Thirdly admitting that Interpellation hath gone and satisfaction hath been required for the dammage and no satisfactory return hath been made whether then the Ships or Territories of the Enemy may be assaulted and for that it has been conceiv'd they may for denunciation is no more but to signify that the Parties against whom the same is commenc't are unjust and will not do right and therefore War is begun by the Supream Power now Princes or Republiques having done that which by the Law of Nature they were not oblig'd to do that is after a wrong done abstain'd from War by Friendly demanding of satisfaction or reparation which is requir'd only by the Laws of Nations and publique Justice being deny'd them there remains no other or further obligation on the State the same amounting and indeed is an apparent defiance and Proclamation is no other So that if Indiction is not necessary the caption of such Ships may subject them to be prize perhaps the Leagues of the several Countries may have provided for cases of the like nature XV. And although the Goods of Friends according to the circumstance of the case may be preserv'd by adjudication and restor'd to their owner yet all manner of Goods have not that priviledge for though the Freedom of Trade preserves the Goods of Friends against the rigour of War yet it does not those Goods that supplies the Enemy for War as Mony Victuals Ships Armes and other things belonging thereto for to supply an Enemy that invades our right or seeks the destruction of our Countries is a liberality not to be allow'd of and it certainly stands with necessity that if I cannot safely defend my self or endamage my Enemy without intercepting the things sent it may justly be done but when such Goods are seized whether they give the Captor a right of property or a right by retention to compel that neuter Nation to give Caution for the future by Hostages or Pledges not to supply the Enemy may be a question The Romans who had brought Victuals to the Enemies of Carthage were taken by the
Carthaginians and again rendred upon request the Hollanders in the heat of the War between the Sweden and Polland never suffer'd themselves to be interdicted with either Nation the same State when they had War with Spain they intercepted the French Ships passing to or for Spain but restor'd them And Pompey in the History of the Mitridatie War set a Guard on the Bosphorus to observe if any Merchant sailed in thither whosoever did and was taken was surely put to death so Demetrius when he possessed Attica with his Army having blockt up Athens hang'd up both the Master and Commander of a Ship who attempted to bring in Corn the Hollanders having blockt up Dunkirk some English Merchants Ships did attempt to enter but were deny'd by the Hollanders Most certain if a Neuter Nation hath had notice of the War and caution given them as is usual not to supply the Enemy with counterband Goods as they call them if such be the case the prize is become absolute the Captors So Queen Elizabeth did when she seized on the 60 Sail of the Hansiatique Towns who were carrying of Goods ropas contrabanda to the Spaniard her Enemy she condemned them and made them absolute prize for as neuters are not compellable by the rigour of War to give any thing against their will so must they not against the will of each Party afford such things as may dammage one another for Persons or Nations having had notice of the War which is done and caution given sometimes by Proclamation or some other publick Edict signifying the right of their cause shall afterwards gather to and assist the Enemy whether associates neuters or Subjects the same yeilds a right so far as to them not only to the charge and dammage that may fall thereby by making them prize but may make them obnoxious to punishment For it is the duty of those that abstain from War to do nothing for the strengthning of him who maintains a bad cause whereby the motions of him that wageth a just War may be retarded and where the cause is doubtful they ought to shew themselves equall to both permitting passage Baking Dressing and affording provision for each Army or Navy L. Aemilius Praetor accused the Tejans for victualling the Enemy's Navy promising them Wine adding that unless they would do the like for the Navy of the Romans he would account them as Enemies but common experience hath taught Nations and Kingdoms when they declare a Neutrality to make provision by way of League with both the Nations at War that when it should happen the Armies of both or any draw towards their Territories it might be lawful for them to exhibite the Common offices of humanity to both The Venetians having so far prevail'd against the Turk in the Island of Candia that they held the City of Canea straightly besieg'd by Sea and Land whereby they had reduc'd it to great extremities it happened at that time to ride about 7 stout Merchant Men in the Port at Smirna the General of the Venetians being jealous of their joyning with the Turkish Armado desired to know their minds who answer'd they would prove neuter in the dispute but afterwards though at first the Captains all refused upon the threatning of the Grand-Seignior to lay an Embargoe on all the Goods of the English Nation in his Dominion and to make slaves of their Persons those Captains were forced to joyn with the Turkish Forces who beat the Venetians from before Canea and so reliev'd it the Venetians Embassador complain'd to the then Powers in England but could have no relief being answer'd that those Ships in the Turks power were Subject to it CHAP. II. Of Letters of Marque and Reprizal I. Of Reprizals generally considered and for what II. That Reprizals are unlawful by the Laws of Nature and the Romans III. That the same by the Laws of Nations are now become lawful IV. The advantage that accrues by the same V. The causes that requires the same VI. Of the things necessarily requisite for the observing them VII Reprizals ordinary and extraordinary according to the Laws of England VIII Of the Interest of Princes of granting them and Letters of Request IX The difference of injustice offer'd to Subjects and Forraigners when and where the one is concluded and not the other X. What is meant by denying of right and doing of injustice and where Reprizals take rooting and where not XI Of Reprizals awarded in cases ordinary XII Of Reprizals issuing forth in cases extraordinary XIII Of Letters of Request precedent allotting a time certain for satisfaction XIV Domicil not origination subject to Reprize XV. Reprizal not granted if the spoil was occasioned by War XVI Of Persons exempt from Reprizal by the Laws of Nations Canon and Civil Law XVII Where Ships or Goods are subject to Reprize and where not XVIII When right deny'd whether life is engag'd and whether Persons refusing to yeild may be slain XIX Goods taken by Reprize where the Property is altered and where otherwise XX. Where many Ships are present and one becomes Captor whether the spoil must be divided or remain his that became Master XXI Of the Captors duties afâ—…ter a Prize taken and its exemption from Custom XXII Restitution when to be made after the debt satisfy'd XXIII Contribution whether it can be by the Laws of England to him whose Goods are taken by Reprize XXIV Commissions awarded for the enquiring of depredations under which the Parties may probaably obtain recompence I. REprizals known to us by the word of Represalie or Leters of Marque in Law have other appellations as Pignoratio Clarigatio and Androlepsia c. In imitation of that Androlepsia among the Greeks to seize the three next Citizens of that Place whether the murderer had fled and was always given to him who required revenge of the offender the word Reprisals is from the French reprendre and reprise i. e. resumptio that is to re-take or take again one thing for another like our Saxon Withernam Though the Art is now become lawful by the Law indeed the consent of Nations yet it must have its Standard mark for the same cannot be done by any private authority but only by the power of that Prince or Republique whose Subject the injur'd Person is nor is the same grantable by authority but where the Party injur'd has Justice deny'd him or the same illegally delay'd II. By the Law of Nature no Man is bound for anothers Act but only the successor of his Estate for that Goods and Estate should pass with their Burdens was introduc'd together with the Dominion of things hence it is that the Son cannot be molested for the debt of his Father neither the Wife for the debt of the Husband nor the Husband for the debt of the Wife the same being against natural equity that one should be troubled for the debt of another So it is
III. Though Pyrats are called enemies yet are they not properly so termed For he is an enemy saies Cicero who hath a Common-wealth a Court a Treasury consent and concord of Citizens and some way if occasion be of Peace and League and therefore a Company of Pyrats or Freebooters are not a Common-wealth though perhaps they may keep a kind of equallity among themselves without which no Company is able to consist and though it is seldom they are without fault yet hold society to maintain right and they do right to others if not in all things according to the Law of Nature which among many people is in part obliterated at least according to agreements made with many other Nations or according to Custom So the Greecks at what time it was accounted lawful to take spoil at Sea abstained from slaughter and populations and from stealing Oxen that plowed as the Scholiast upon Thucydides observes and other Nations living also upon the spoil when they were come home from Sea sent unto the Owners to redeem if they pleased at an equal rate what they were robbed of at Sea and at this day if a Ship hath the Emperor of Barbarys protection the Pyrats of that Nation if they seize will restore and if there be no protection yet if taken within sight of their Castles the Prize is not absolute but if resistance is made and there be a Caption she then becomes the Captors for ever as the price of blood IV. Pyrats and Robbers that make not a Society i. e. such a Society as the Laws of Nations accounts lawful are not to have any succour by the Law of Nations Tiberius when Tacfarinas had sent Legates to him he was displeased that both a Traytor and a Pyrat should use the manner of an Enemy as Tacitus hath it yet sometimes such Men Faith being given them obtain the right of Legation as the Fugitives in the Pyrenean Forrest and the Banditi at Naples and Solyman the Magnificent having entertained Barbarossa the famous Pyrat sent word to the Venetians that they should use him and esteem him no more as a Pyrat but one of their own Port. V. If a Ship is assaulted by a Pyrat for redemption of which the Master becomes a Slave to the Captors by the Law Maritime the Ship and lading are tacitly oblidged for his redemption by a general contribution But if a Pyrat shall feign himself stronded and to duccoy the Merchant Man for his releif shall fire his Guns or wave his Colours who accordingly varies his course for his assistance and the Pyrat enters him for redemption of which he becomes a Slave to the Pyrat there contribution shall not be made and if the Ship loses any of her lading the Master shall answer the same VI. A Pyrat attacques a Merchant Man and enters her for Redemption of which the Master gives his Oath at a time and place to pay the Pyrat a summe certain by some it hath been held that the Master commits not perjury if the price promised for redemption be not brought according to the Oath because that a Pyrat is not a determinate but a common Enemy of all with whom neither Faith nor Oath is to be kept but that is no reason for the assoiling of the vow for though the Person be deficient yet the Just God is concerned nor can that Person that hath promised a thing satisfy his conscience after he hath once delivered it to him to recover it back again for the words in an Oath as to God are to be understood most simply and with effect and therefore he that returned secretly to the Enemy and again departed made not good his Oath concerning his return VII If an English Man commit Pyracy be it upon the Subject of any Prince or Republique in amity with the Crown of England they are within the purview of the Stat. of 28 H. 8 and so it was held where one Winterson Smith and others had robbed a Ship of one Maturine Gantier belonging to Bourdeaux and bound from thence with French Wines for England and that the same was felony by the Law Maritime and the Parties were convicted of the same VIII And so it is if the Subject of any other Nation or Kingdom being in amity with the King of England commit Pyracy on the Ships or Goods of the English the same is felony and punishable by virtute of the Stat. and so it was adjudged where one Careless Captain of a French Man of War of about 40 Tuns and divers others did set upon four Merchant Men going from the Port of Bristoll to Carmarthen did rob them of about 1000 l. for which he and the rest were arraigned and found guilty of the Pyracy But before the Stat. of 25 Ed. 3. if the Subjects of a Forreign Nation and some English had joyned together and had committed Pyracy it had been Treason in the English and felony in the Forreigners And so it was said by Shard where a Norman being Commander of a Ship had together with some English committed robberies on the Sea being taken were arraigned and found guilty the Norman of felony and the English of treason who accordingly were drawn and hang'd But now at this day they both receive Judgement as felons by the Laws Maritime IX If the Subjects in enemity with the Crown of England be Sailers aboard an English Pyrat with other English and then a robbery is committed by them and afterwards are taken it is felony without controversy in the English but not in the Strangers for they cannot be tryed by virtue of the Commission upon the Statut for it was no pyracy in them but the deprdeation of an Enemy for which they shall receive a tryal by Martial Law and Judgement accordingly X. Pyracy committed by the Subjects of the French King or of any other Prince or Republique in amity with the Crown of England upon the British Seas are punishable properly by the Crown of England only for the Kings of the same have istud regimen dominium exclusive of the Kings of France and all other Princes and States whatsoever XI If Pyracy be committed on the Ocean and the Pyrats in the attempt there happen to be overcome the Captors are not oblidged to bring them to any Port but may exoppose them immediately to punishment by hanging them up at the main yard end before a departure for the old natural liberty remains in places where are no judgements And therefore at this day if a Ship shall be in on a Voyage to the West-Indies or on a Discovery of those parts of the unknown World and in her way be assaulted by a Pyrat but in the attempt overcomes the Pyrat by the Laws Maritime the Vessel is become the Captors and they may execute such Beasts of prey immediately withhout any solemnity of condemnation XII So likewise if a Ship shall be assaulted by Pyrats
and in the attempt the Pyrats shall be overcome if the Captors bring them to the next Port and the Judge openly rejects the Tryal or the Captors cannot wait for the Judge without certain peril and losse Justice may be done upon them by the Law of Nature and the same may be there executed by the Captors Cajus Caesar being but a Private Man pursued the Pyrats by whom he formerly had been taken and spoiled by them and making up to them with such a Fleet as he possible in haste could get ready attaqued burnt and destroyed their Ships and the Men he brought back to an Anchor where repairing to the Proconsul to do Justice who neglecting himself returned back and there hang'd them up XIII If a Pyrat at Sea assault a Ship but by force is prevented entering her and in the attempt the Pyrat happens to slay a Person in the other Ship they are all principalls in such a murder if the Common Law hath Jurisdiction of the cause but by the Law Maritime if the Parties are known they who gave the wound only shall be principalls and the rest accessories and where they have cognizance of the principal the Courts at Common Law will send them their accessory if he comes before them XIV If a Spaniard robs a French Man on the High Sea both their Princes being then in Amity and they likewise with the King of England and the Ship is brought into the Ports of the King of England the French Man may proceed criminaliter against the Spaniard to punish him and civiliter to have Restitution of his Vessel but if the Vessel is carryed intra Praesidia of that Prince by whose Subject the same was taken there can be no proceeding civiliter and doubted if criminaliter but the French Man must resort into the Captor or Pyrats own Country or where he carried the Ships and there proceed A Dutch Man but Naturalized by the Duke of Savoy and living at Villa Franca in his Dominions procures a Commission from the States of Holland and coming to Leighorn there rid with the Colours and Ensigns of the Duke of Savoy the Ship Dyamond being then in Port and having received her lading was afterwards in her Voyage home surprised by that Caper and brought into Villa Franca and there condemned and sold to one Poleman which Ship afterwards coming for England the Plaintiffs having notice made a seizure and upon Tryal Adjudication passed for the Plaintiffs the original proprietors for though the Ship of War and the Captors were of Savoy and carryed thither yet being taken by virtue of a Dutch Comission by the Law Maritime she must be carryed infra Praesidia of that Prince or State by virtue of whose Commission she was taken Nor can such carrying of the Ensignes or Coulors of the Duke of Savoy who was then in amity with the Crown of England or the Commander though a Subject of that Prince make him a Pyrat or subject them or those to whom they have transferred their interest of the Prize any waies to be questioned for the same criminaliter for that the original quoad as to the taking was lawful as one enemy might take from another but civiliter the same for that the Captor had not entitled himself to a firme possession And therfore in all cases where a Ship is by Letters of Marque or Pyracy if the same is not carry'd infra praesidia of that Prince or State by whose Subject the same was taken the Owners are not divested of their property but may re-seize wheresoever they meet with their Vessels XV. If a Pyrat attaques a Ship and only takes away some of the Men in order to the selling them for slaves this is a Pyracy by the Law Maritime but if a Man takes away a Villaine or Warde or any other Subject and sells them for slaves yet this no robbery by the Common Law XVI If a Bale or Pack of Merchandise be delivered to a Master to carry over Sea to such a Port and he goeth away with the whole Pack or Bale to another Port and there sells and disposes of the same the same is no felony But if he opens the Bale or Pack and take any thing out animo furandi the same may amount to such a Larceny as he may be indicted in the Admiralty though it amounts not to a Pyracy Yet if such a Master of Ship shall carry the lading to the Port appointed and after retakes the whole Pack or Bale back again this may amount to a Pyracy for he being in the nature of a Common Carrier the delivery had taken its effect and the privity of the Balement is determined XVII If a Pyrat shall attaque a Ship and the Master for the redemption shall give his Oath to pay a sum certaine though there be no taking yet is the same Pyracy by the Law Maritime If a Ship shall ride at Anchor and the Mariners shall be part in their Ship-Boat and the rest on the shore and none shall be in the Ship yet if a Pyrat shall attaque her and rob her the same is Pyracy XVIII A Merchant procures Letters of Marque or Reprise and then delivers the Commission to Persons to endeavour a satisfaction if such Persons commit Pyracy the Vessel is forfeited without controversy but the Merchant is no waies lyable to make satisfaction for though the Superior shall answer for the actions of his Ministers or Servants yet that is introduced by the Civil Law but this question must be decided by the Laws of Nations by virtue of which such Commissions are awarded or granted the which does exempt any Man to answer for the dammages of his Servants unless he fore-knew that they would commit such a Pyracy or spoliation or any way have abetted or consented to the same which right may be forfeited and the Civil Law let in to acquire satisfaction But if a Ship shall be at Sea and in necessity if she attaques another Ship and takes out some Victuals Cables Ropes Anchors or Sailes especially if that other Ship may spare them this is not Pyracy but then the party must pay ready Money for such things or give a Note or Bill for the payment of the value if on this side the Straites of Morocco within four months if beyond within twelve months XIX By the Law Maritime if Goods are taken by a Pyrat and afterwards the Pyrat attaques another Ship but in the attempt is conquered the Prise becomes absolute the Captor's saving the account to be rendred to the Admiral And it is accounted in Law a just caption of whatsoever may be got or taken from such Beasts of prey be the same in their own or in their Successors possession But then an account ought to be rendred to the Admiral who may if they happen to be the Goods of
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
the same to what condition they have been reduced and made to acknowledge that Dominion and Superiority to that Crown under which their Ancestors humbly besought the acceptance of the Soveraignty of the Netherlands might be annexed and protected is now fresh in our memories so high and of so great Importance is this Dominion and Soveraignty signified by the Duty of the Flagg in the British circumjacent Seas CHAP. VI. Of the Right of Pressing or seizing of Ships or Mariners for service publique I. That such Right is excepted in the Law of Dominion II. Whether the Ships of Nations who are in war at the same time may be pressed the danger being equal III. Whether this Right extends to Ships to fight and no â—…more or gives a power to trade IV. By the Laws of England the King may seize V. The reason why such power was vesâ—…ed in the Admiral VI. That such a right of compelling Men to serve in Naval Expeditions may be VII Objections legal refuted VIII Of the antient punishment of such deserters of the Kings service IX Whether it be lawful for a private Man to execute Justice on such as fly and desert the service X. Where a General Commission is given to Men to execute Justice I. THe Civil Law though it can command nothing which the Law of Nature forbids nor forbid what it commands nevertheless it may circumscribe natural liberty and prohibite what was naturally lawful and also by its force antevert that very Dominion which is naturally to be acquired Hence it is that Princes by the Law of Nations may acquire a Right of use of things that do belong to private Persons for property hath not as hath been said swallow'd up all that Right which rose from the Common State of things for as all Laws are to be construed as neer as possible to the intention of the Makers so we must consider what was the mind of those that first introduced singular Dominions now the Rule to construe that must be as neer as possible to naturall equity and that in extream necessity that old right of using things should revive as if the things had remained common the same standing with the interest of all humane constitutions and therefore in the Law of Dominion extream necessity seems excepted Hence it is that the Vessels and Ships of what nature or Nation soever that shall be found riding in the Port or Havens of any Prince or State may be seized on and imploy'd upon any service of that Soverain that shall seize the same being but a harmless utility not divesting the Owners of their inteâ—…â—…r property II. If a Ship of the King of Denmark be in the Port of London and the Swede is in War with that Prince and it happens at that time the King of Britain is in War with the Spaniard now the possessor is here pressed with an equal necessity and by the same argument is rather obliged to the defense of his own Country then another whether by the Law of Nations the Ship ought to be detained hath been doubted most certain they may who would not pluck a Shipwrackt Man from his planck or a wounded Man from his horse rather then suffer himself to perish to slight which is a sin and to preserve the highest of wisdom besides in the taking of the Vessel the right is not taken from the Owner but only the use which when the necessity is over there is a condition of restoring annexed tacitly to such a seizure And doubtless the same right remains to seize the Ships of War of any Nations as well as those of Private interrest the which may be imploy'd as occasion shall be present So the Grecians seized on Ships of all Nations that were in Ports by the advice of Xenophon but in the time provided food and wages to the Mariners III. Whether this Right extends so far as to give Princes a power to seize in order to traffique may be some question certainly if the traffique be for such commodities as Masts Timber Tar Powder shot or other commodities or accoutrements of Armes or Naval provisions of offence necessary for the defence of the Realm it may be done but then it is just fraight should be pay'd for what hurt can it do me to let another my Boat to pass over a ford if he rewards me and if that be answered the Owners are at no prejudice for this is but a harmeless utility IV. By the Laws of England there is no question but the King may seize and it appears by very many antient Records that he might do it and it was one of the Articles of enquiry amongst others Item soit in quis de Neifs qui sont arrestez pour le service du Roy ou de l'Admiral debreissant le Arrest then follows Ordonne estoit en temps du Roy Richard le primier a Grimsby per advise de plusteurs Seigneurs du Royaume que quand Neifs seront arrestez c. and that upon such Arrests broken the parties might be punished and fined Again Inquiratur si arrestatus ad serviendum Regi fregit arrestum hujusmodi transgressor stat in gratia Regia sive Admiralli sui ultrum voluerint committere Carceribus mancipandum vel finem facere in hac parte si arrestum hujusmodi factum manifestum fuerit cognitum If the Admiral by the Kings Command arrests any Ships for the Kings service and he or his Livetenant return and certify the Arrest or a List of the Ships arrested into Chancery no Master or Owner of the Ships so arrested shall be received to plead against the return pur ceo que l'Admiral son Lieuâ—…enant sont de Record And if the Ship so arrested break the arrest and the Master or Owner thereof be indicted and convicted devant l'Admiral by the Oath of 12 Men the Ship shall be confiscate to the King which power the General maintains in all places where he has power and the same seems to be provided for in the latter Clause of 15 R. 2. Ca. 3. King Ethelred his Bishops and Nobles in the General Councel of Enham an 1009 for the setting out a Fleet every year and the punishment of those who hurt or spoiled any Ship or deserted the service especially if the King was present in the Expedition amongst others it was enacted Si quis Navem in Reipub. expeditionem designatam vitiaverit damnum integre restitutio Pacem Regis violatam compensato si verum ita prorsus coruperit ut deinceps nihili habeatur plenam luito injuriam laesam praeterea Majestatem So Sir Henry Spelmans Version out of the Saxon Copy renders it but the antient Copy hath it more largely Naves per singulos annos ob paâ—…ae defensionem munitionem praeparentur postque Sacrosanctum Pascha cum cunctis utensilibus competentibus simul congregentur qua igitur etiam poena
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
to extream necessity yet it follows not upon that that they who so conformed sinned or did that which was absolutely unlawfull for we well know that reason of State oft calls for Sacrifices where there is no fault to expiate Ostrocisme and Jealousy make away those who are known to deserve most but in strickt right which is the term of this question the just governour ought to look upon them as more unfortunate then faulty CHAP. XIV Of the Naval Military part I. The advantage that Princes have by a good Commander II. The love that naturally proceeds from the Mariners to those that are valiant and generous III. Princes in prudence ought not to listen too much to the complaint against Commanders IV. Of the faults generally considered in Soldiers and Mariners V. Of the punishments that generally wait on such offenders VI. Of Drunkeness Swearing and other such sort of impieties not to be suffered in Fleets VII Spies if lawfull to use them by the Laws of Nations but being deprehended are to suffer death and how they are to be dealt withall by the Laws of England VIII It is not lawfull for a Friend or Neuter to relieve an Enemy and Persons so offending how punisht IX Ships taken as prize the Ship papers and other matters concerning the same are to be preserved X. Of things taken and acquired in War how the right of them becomes vested in the Captors and how that is to be understood by the Law of Arms. XI To steal the Cables or other furniture of the King of England's Ships how punishable at this day XII Ships surrendred and voluntarily surrendred how to be dealt with and whether those that shall resist it if entered by force whether quarter may be refused XIII Ships of War generally ought not to be yielded but if entered or disabled whether they may not accept of a quarter standing with the Oath called Sacramentum Militare XIV Of obeying Orders the same ought to be punctually to be follow'd and if broken though the Act succeeds well whether the same subjects not the actor to punishment XV. of the obligation incumbent on Commanders and Souldiers to behave themselves valiantly and the right of slaying an Enemy where lawfull XVI Ships how oblidged by the Law of Arms for the assistance of one another and of the duty of those that have Fleets under their Convoy XVII An Enemy beaten ought to be pursued and how far it is lawfull to slay such flying with their lives in their hands by the Laws of Arms and how the reeking sword ought to be governed XVIII Persons exempted from the sword by the Laws of Nature Nations Civil and Canon and by the Municipall Laws of some Countries XIX Mutining how esteemed valued and punished at this day by the practise of Armies and by the Laws of England XX. Whether it be lawfull to decoy the Subjects Souldiers or Mariners of an Enemy to forsake his Prince or General and to bring over his Men Ships or Arms and where by Law they may be received and how such deserters may be punished by the Laws of Nations and of England XXI Of Seducers Message Carriers and Decoyers of Souldiers how to be handled by the Law of Arm. XXII Of those that shall disobey or strike their superiour Officers how punishable XXIII Of mutening and those that shall act in the same how punished though they have a just cause of complaint XXIV Of the care incumbent on Commanders and Masters of the Great Ships as in reference to their safety and the punishment of wilfull burning and destroying them XXV Of the general offences at Sea how punished XXVI Court Martials how erected and what operation their Judgements have and upon whom XXVII Judges and Advocates Power as in reference to give an Oath and the Admiral 's power how limited to the punishing of offences XXVIII Of maimed Souldiers and Mariners and the provisions that the Law makes for them at this day XXIX Of Triumphs I. AN Excellent Generall is an evidence of the Fortune of a Prince and the Instrument that occasions the happiness of a Kingdom and therefore when GOD makes choise of a Person to repair the disorders of the World or the good of a particular State then is his care shewed in the furnishing him with necessary Principalls to undertake great matters the thoughts are put in his Soul by that eternall Commander to execute he troubles and confounds his Enemies and leads him as by the hand â—…o Victories and Triumphs And one of the greatest expedients whereof he serves himself for this purpose is to raise unto him excellent Men both in Courage and Conduct to whom he communicates his care and who help him to bear the weight of Affairs Alexander had never conquered Asia or made the Indies to tremble but for Ephestion Parmenio and Clytus Caesar gained many a Bataill by his Lievtenants and the fairest Empire of the World which ambition and evil of the times had divided into 3 parts was reduced under the Dominion of Augustus by the valour of Agrippa Justinian triumphed over Persia and destroyed the Vandalls in Affrica and the Goths in Italy by the aid of Bellisarus and Narcete And it is most certain that Noble Commanders are the Glory of their Princes and happiness of the People on the other hand base cowardly and treacherous Generals are the shame of the one and the dispair of the other II. Hence it is that Souldiers and Mariners draw their lines either of love even to the mouth of Canons with a good Generall or mutiny and hate to the main yard end against one that is bad for to obey them who are not their Soveraigns when they do them hurt when they insult and are cruell in cold blood and base cowardly or treacherous in Bataill is a sad necessity for them and a hard essay of patience yet must they be obeyed and the Souldiers and Mariners must not rebell or repine but submit till the Soveraign redresses the misfortunes III. Again Princes ought not to listen too much to the mutinous demands of the Crew or any others whose ambition watches their ruin whereby to conceive anger against this Commanders for it is easier to purge out the choler and discontent that is got under the hatches then to provide Commanders of Conduct Courage and Faithfulness to govern their Expeditions Bellisarius that most excellent Commander who had no other crime then his Reputation and was not culpable but that he was powerfull having conquered Persia subdued Africa humbled the Goths in Italy lead Kings in Triumph and made appear to Constantinople somewhat of Old Rome an Idea of the Antient Spendor of that proud Reipublique after all his Eminent Services this Great Person is abandoned to Envy a suspition ill grounded distroys the value of so many Services and a simple jealousy of State wipes them out of the memory of his Prince but he rests not there for the demeanor had
back but on the other hand they are to come into the Battle and engage and do their utmost endeavour to take fire kill and endamage the Enemy Pyrat or Rebell and assist and relieve all other his Confederate Ships and if they shall prove cowards they are to be dealt with as cowards ought by the Law of Arms which is to suffer death But circumstance of things may make alteration of matters therefore there is added or other punishment as the circumstance of the offence shall deserve or a Court Martiall think fit There are some offices to be done even to them from whom you have received an injury for revenge and punishment must have a measure and therefore the issues of the Roman Wars were either milde or necessary now when killing is just in a just War according to internal justice may be known by the examining the causes or end of the War which may be for the conservation of Life and Members and the keeping and acquiring of things usefull unto Life now in the assaulting of Ships it happens that one is slain on purpose or without purpose on purpose no Man can be slain justly unless either for just punishment as without it we cannot protect and defend our Life our Goods our Countrey c. That such punishment may be just it is necessary that he who is slain have offended and that so much as may be avenged with the punishment of death in the Sentence of an equall Judge be expected now we must note between full injury and meer misfortune ofâ—…en intercedes some mean which is as 't were composed of both so that it can neither be called the act of one knowing and willing nor meerly the act of one ignorant or unwilling This distinction by Themistius is fully illustrated You have made a difference 'twixt an injury a fault and a misfortune although you neither study Plato nor read Aristotle yet you put their Doctrine into practise for you have not thought them worthy of equall punishment who from the beginning perswaded the War and who afterward were carryed with the stream and who at last submitted to him that now seem'd to have the highest power the first you condemned the next you chastised the last you pitty'd Mosâ—… certain to spare Captives or Prisoners of War is a command of goodness and equity and in Histories they are often commended who when too great a number prove burdensom or dangerous chose rather to let them all go then to slay them or detain them though for Ransoms as the last Flemish Wars with England so for the same causes they that strike or yield up themselves are not to be slain though there is no provision made by Covenant In Towns besieg'd it was observed by the Romans before the Ram had smitten the Wall Caesar denounceth to the Advatici he would save their City if before the Ram had touched the Wall they yielded which is still in use in weak Places before the great Guns are fired in strong Places before an Assault is made upon the Walls and at Sea by firing 1 or 2 Guns or hanging out the bloody Flagg according as the instructions are however till there be an absolute yielding or quarter cry'd by the Law of Armes as well as by the above mentioned Article every Commander and Souldier is to do his utmost to take fire kill and endamage the Enemy or whatsoeuer may tend thereunto XVI By the Law of Arms he deserves punishment who doth not keep off force that is offered to his fellow Souldier and though it hath been conceived that if there be manifest danger that he is not bound to come into his relief for such Commanders may prefer the lives in his own Ship before those in another yet that suffices not for every Souldier by the Law of Arms is not only bound to defend but likewise to assist and relieve his Companion now Companions are in two respects either those that are in actual service with such Souldiers or those that are not but only committed to their protection or Convoy which are to be defended and guarded at the same peril and charge that a fellow Souldier is and therefore all Ships that are committed to Convoy and Guard they are diligently and carefully to be attended upon without delay according to their Instructions in that behalf And whosoever shall be faulty therein and shall not faithfully perform the same and defend the Ships and Goods in their Convoy without either diverting to other parts or occasions or refusing or neglecting to fight in their defence if they be set upon or assailed or running away cowardly and submitting those in their Convoy to hazard and peril or shall demand or exact any Money or other reward From any Merchant or Master for conveying of any such Ships or other Vessells belonging to His Majesty's Subjects shall be condemned to make reparation of the damage to the Merchants owners or others as the Court of Admiralty shall adjuge and also be punished criminally according to the quality of their offences be it by pains of death or other punishment according as shall be adjudged fit by that Court Martiall Now those Ships that are not under Convoy but ingaged in fight are faithfully to be relieved and therefore if a Squadron shall happen to be over-charged and distressed the next Squadron or Ships are to make towards their relief and assistance upon a signal given them which is generally given in the Admiralls Squadron by a Pendant on the fore-top-Mast head of any Flagg-Ship in the Vice-Admiralls Squadron or he that commands in chief in the second place a Pendant on the main top-Mast head and the Reer-Admiralls Squadron the like but these signalls sometimes change according to the wisedom and resolution of the Admirall Again Ships that are disabled by loss of Masts shot under Water or the like so as they be in danger of sinking or taking the distressed Ships generally make a sign by waft of their Jack and Ensigns and those next to them are bound to their relief but yet this does not alwaies hold place for if the distressed Ship is not in probability of sinking or otherwise encompassed with the Enemy the releiver is not to stay under pretence of securing them but ought to follow his leader and the Battle leaving such lame Ships to the Stern most of the Fleet it being an undoubted Maxime That nothing but beating the Body of the Enemy can effectually secure such disabled Ships XVII It is not enough that Men behave themselves valiantly in the beating of an Enemy for that is not all but the reducing of him into a condition to render right either for damage done or to render that which is right which cannot well be done without bringing him to exigences and streights and therefore if the Enemy Pyrat or Rebell be beaten none neither through cowardize negligence or dissaffection ought to forbear the
others may be had the changing of Countreys either barren or Morish for more fertile or healthfull which may justly be done as the case of the Old Germans as Tacitus relates so likewise to pretend a Tittle to a Land because it was never found out or heard of before that is if the same be held by a People that are under a Government nay though the Government be wicked or think amiss of GOD or be of a dull wit for invention is of those things that belong to none for neither is Moral Virtue or Religious or Perfection of Understanding required to Dominion but yet if a new Place or Land shall be discovered in which are a People altogether destitute of the use of Reason such have no Dominion but out of Charity only is due unto them what is necessary for life for such are accounted as Infants or Mad-Men whose right or property is transferred that is the use of the same according to the Laws of Nations in such case a charitable War may be commenc't XVIII To prevent all the sad calamities that must inevitably follow the ungoverned hand in War Faith must by all means be laboured for for by that not only every Common-wealth is conserved but also that greater Society even of Nations that once being taken away then farewell Commerce for that must be then taken away from Man for Faith is the most Sacred thing that is seated in the breast of Man and is so much more religiously to be kept by the Supream Rulers of the World by how much more they are exempted from the punishment of their sins here then other Men take away Faith and then Man to Man would be as Mr. Hobbs observes even wolves and the more are Kings to embrace it first for Conscience and then for Faith and Credit sake upon which depends the authority of their Government The Ambassadors of Justinian addressed their Seepch to Chosroes after this manner Did we not see yout here with our own eyes and pronounce these words in your ears we should never have believed that Chosroes the Son of Cabades would bring his Army and enter forceably into the Roman bounds contrary to his League the only hope left to those that are afflicted with War for what is this but to change the Life of Men into the life of wild Beasts take away Leagues and there will be eternall wars and wars without end will have this effect to put Men besides themselves and divest them of their Nature If then a safe Peace may be had it is well worth the releasing of all or many of the injuries losses and charges according to that in Aritotle Better it is to yield some of our goods to those that are more potent then contend with them and loose all for the common chances of war must be considered which if so the scope of the principall part of this First Book may be avoided and we let into that of Traffique and Commerce The end of the First Book CHAP. I. Of the various Rights and Obligations of Owners and Partners of Ships in cases private I. Of Navigation in general II. Of Owners their several Powers over those Vessels they are Partners in III. Where Ships are obliged to make a Voyage before they can be sold and what may be done when part protest against a Voyage IV. The Master how brought in by the Owners and the reason why in such a manner V. Where the Owners ought to be repaired for the Damages of the Master VI. Where Ships broke in pieces determine the Partnership as to the Vessel and where not VII Where a Ship shall be the Builders and where onely his whose Materials she was erected with VIII Where Property of the Vessel altered changes not that of the Boat IX A Ship for the act of Pyracy becomes forfeited yet if bona fide sold where the Property may be questioned X. Moneys borrowed by the Master where the same obliges the Owners and where not XI Where he that obtains an unlawful possession of a Ship shall answer the full Freight to the Owners XII And where the Owners shall have their Freight though they lâ—…ss their Lading I. IN the precedent Book having observed something of the Rights of Persons and of Things in a state of Nature and how necessarily they came at first to be appropriated and how equitably they are now continued in the possession of those to whom they are consigned by the donation of others and maintained or destroyed by the equity of those various Lawes which rules and governs them all which is justified by the Scripture it self It may not now seem improper to examine the private causes changing the same and of the contingencies and advantages that wait on that which we properly call Commerce The Great Creator no sooner had finished his Mighty Work and given Man that Dominion which he now enjoyes as well over the Fish in the Seas as the Beasts in the Field he was not forgetful of bestowing on him those things which were necessary for the government and support of the same creating at the same time Trees which grow as it were spontaneously into Vessels and Canoes which wanted nothing but launching forth to render them useful for his accommodation which afterwards he by his divine Genius inspired by that Mighty One finding Materials hath since so Compleated and Equipt as to render it the most beautiful and stupendious Creature not improperly so called that the whole World can produce which being not retarded by lett of Winds or other contingent Accidents submits it self to plow the unknown paths of that vast Element to brave all Encounters of Waves and Rocks to fathom and survey the vast emensities of the very World it self to People Cultivate and Civilize uninhabited and Barbarous Regions and to proclaim to the Universe the Wonders of the Architect the Skill of the Pilot and above all the Benefits of Commerce so that it is no wonder at this day to find Nations contending who should surpass each other in the Art of Navigation and to Monopolize if possible the very Commerce and Trade of the World into their hands and that all by the means of this most Excellent Fabrick II. Hence it is that Ships and Vessels of that kind being originally invented for use and profit not for pleasure and delight to plow the Seas not to lye by the walls to supply those of the Mountains as well as those on the Sea Coasts Therefore upon any probable design the major part of the Owners may even against the consent though not without the privity and knowledge of the rest Freight out their Vessel to Sea If it should so fall out that the major part protest against the Voyage and but one left that is for the Voyage yet the same may be effected by that party especially if there be equality in Partnership III. Owners by Law can no wayes be obliged to continue their
paction or partnership without sundering but yet if they will sunder the Law Maritime requires some considerations to be performed before they can so do And therefore if the Ship be newly built and never yet made a Voyage or is newly bought she ought to be subject to one Voyage upon the common outread and hazard before any of the Owners shall be heard to sunder and discharge their parts If it falls out that one is so obstinate that his consent cannot be had yet the Law will enforce him either to hold or to sell his proportion but if he will set no price the rest may outrigg her at their own costs and charges and whatsoever Freight she earns he is not to have any share or benefit in the same But if such Vessel happens to miscarry or be cast away the rest must answer him his part or proportion in the Vessel But if it should fall out that the major part of the Owners refuse to set out the Vessel to Sea there by reason of the unequality they may not be compelled but then such Vessel is to be valued and sold The like where part of the Owners become deficient or unable to set her forth to Sea IV. The Master of the Vessel is elegable by the part-Owners not by the majority yet he that is most able is to be preferred The wisdome of the later Ages have been such that few have gone out in that condition but those as have commonly had shares or parts in the same Vessel In the preferring therefore of a Master his Ability and Honesty is to be considered since on him rests the charge not onely of the Vessel but of the Lading their very Actions subiecting the Owners to answer for all damage that shall be sustained by him or his Marriners be it in Port or at Sea to the Lading or Goods of the Merchants or Laders and they are made lyable as well by the Common Lawes of England as the Law Maritime V. If the Master commits offences either negligently or wilfully he shall be responsible over to his Owners for the repairation of damage nor are they bound to joyn but may sever and sue apart as well by the Common Law as the Maritime So likewise if the Ship hath earned Freight and part of them receive their parts the rest may bring their Action for their share without joyning with the other VI. If a Ship be borke up or taken in pieces with an intent to convert the same to other uses if afterwards upon advice or change of mind she be rebuilt with the same Materialls yet this is now another and not the same Ship especially if the Keel be ript up or changed and the whole Ship be once all taken a sunder and rebuilt there determines the Partnership quoad as to the Ship But if a Ship be ript up in parts and taken a sunder in parts and repaired in parts yet she remains still the same Vessel and not another nay though she hath been so often repaired that there remains not one stick of the Original Fabrick VII If a man shall repair his Ship with Plank or other Materialls belonging to another yet the Ship maintaines and keeps her first Owners But if a man shall take Plank and Materialls belonging to another and prepared for the use of Shipping and with them build a Ship the property of the Vessel followes the Owners of the Materialls and not the builder But if a man cuts down the trees of another or takes Timber or Planks prepared for the erecting or repairing of a dwelling house nay though some of them are for Shipping and builds a Ship the property follows not the Owners but the Builders VIII If a Ship be sold together with her tackle furniture apparel and all other her instruments thereunto belonging yet by those words the Ships boat is not conveyed but that remains still in the Owners so it is if the Ship be freighted out and afterwards at Sea she commits Piracy the Ship is forfeited but the Boat remaines still to the Owners IX If a Ship commits Piracy by reason of which she becomes forfeited if before seizure she be Bona-fide sold the property shall not be questioned nor the Owners divested of the same X. If a Master shall take up Monys to mend or Victual his Ship where there is no occasion though generally the Owners shall answer the fact of the Master yet here they shall not but onely the Master But if there were cause of mending the Ship though the Master spend the Mony another way yet the Owner and Ship become lyable to the satisfaction of the Creditor for it were very unreasonable that the Creditor should be bound to take upon him the care of the repairing the Ship and supply the Owners roome which must be so if it should be necessary for him to prove that the money was laid out upon the Ship so on the other hand it stands with reason that he be sure that he lends his money on such an occasion as whereby the Masters fact may oblige the Owners which he can not do otherwise unless he knows that the money borrowed was necessary for the repair of the Ship and therefore if the Ship wanted some repairs and a far greater and Extravagant sum was lent then was needful the Owners shall not be lyable for the whole II. If a man gets possession of a Ship having no Title to the same by the Law Maritime he shall answer such damage as the Ship in all probability might have earned and the reason of that is because the onely end of Shipping is the imployment thereof XII A Ship is Freighted out accordingly she receives in her lading pursuant to agreement afterwards an Embargo happens and the lading is taken as forfeited yet the Owners shall notwithstanding receive Freight for here is no fault in them but only in the Merchant Thus men from their Necessity and Safety having from hollow Trees nay Reeds Twiggs and Leather for such were the rude beginnings of those stupendious things we now admire advanced the Art to that degree as to render it now the most usefullest thing extant and as the Mathematiques Astronomy and other Sciences hath added to its security so hath succeeding Ages from time to time provided Priviledges and Laws by which it hath alwayes been regulated and governed the which upon all occasions and in all Courts hath generally had a genuine construction as near as might be to the Marine Customes and therefore at this day if a Ship be taken away or the Owners dispossest they may maintain an Action of Trover and Conversion for 8th or 16th part of the same as well by the Common Laws of this Kingdome as the Law Maritime CHAP. II. Masters of Ships their Actions considered in reference to cases private and publique I. A Master or Skipper
to ship any Merchandize but onely at the Publique Ports and Keyes He must not lade any prohibited or unlawful Goods whereby the whole Cargo may be in danger of Confiscation or at least subject to seizure or surreption He may not set sayl without able and sufficient Marriners both for quality and number VIII He may not use any unlawful Colours Ensigns Pendants Jacks or Flaggs whereby his Ship or Lading may incur a Seizure or the Cargo receive any detriment or damage He must not suffer the Lading to be stolne or imbezled if the same be he must be responsible unless it be where there is vis major as if he be assaulted at Sea either by Enemies Ships of Reprize or Pyrats there if no fault or negligence was in him but that he performed the part of an honest faithful and valiant man he shall be excused Yet it hath been adjudged That if a Merchant-man lyes in a Port or Haven and a Pyrat Sea Rover or other Thieves enter her and over-power her men and then rob her yet the Master must be responsible but if an Enemy enter and commit the depridation there the Master is excused IX He must not carry any counterfeit Cocquets or other fictitious and colourable Ship Papers to involve the Goods of the Innocent with the Nocent Nor must he refuse the payment of the just and Ordinary Duties and Port-charges Customes and Imposts to the hazard of any part of his Lading yet if he offers that which is just and pertaines to pay then he is excused X. He must not set Sail with insufficient Rigging or Tackle or with other or fewer Cables then is usual and requisite respect being had to the burthen of the Vessel And if any damage happens by the delivery of the goods into the Lighter as that the Ropes break and the like there he must answer but if the Lighter comes to the Wharf or Key and then in taking up the goods the Rope breaks the Master is excused and the Wharfinger is liable If fine goods or the like are put into a close Lighter and to be conveyed from the Ship to the Key it is usual there the Master sends a Competent number of his Marriners to look to the Merchandize if then any of the goods are lost or imbezled the Master is responsible and not the Wharfinger but if such goods are to be sent aboard a Ship there the Wharfinger at his peril must take care the same be preserved XI After his arrival at Port he ought to see that the Ship be well moared and anchored and after reladed not to depart or set Sail till he hath been cleared for if any damage happens by reason of any fault or negligence in him or his Marriners whereby the Merchant or the Lading receives any damage he must answer the same XII And as the Law ascribes these things and many more to him as faults when committed by him or his Marriners in Ports so there are other things which the Law looks upon to be as faults in him in his Voyage when done As if he deviates in his course without just cause or steers a dangerous and unusual way when he may have a more secure passage Though to avoid illegal impositions he may somewhat change his course nor may he sail by places infested with Pyrates Enemies or other places notoriously known to be unsafe nor engage his Vessel among Rocks or remarkable Sands being thereto not necessitated by violence of Wind and Weather or deluded by false lights XIII By the maritime Law he that will charge a Master with a fault as in relation to his Duty must not think that a generall charge is sufficient in Law but he ought to assigne and specifie the very fault wherewith he is so charged So he that will infer that such or such a sad disaster to have happned or been occasioned by reason of some fault in the Marriners must not only prove the fault it self but must also prove that that fault did dispose to such a sad event or that such a misfortune could not have happened without such a fault precedent XIV When Voyages are undertaken the Master is there placed in by the Owners and they ought to make good the Masters fact and deed And therefore as the whole Care and Charge of Ship and Goods are committed to the Master it is the prudence of the Owners to be careful who they will admit Commander of their Ship since their actions subject them to answer the damage or what ever other act he shall do in reference to his Imploy And therefore he can freight out the Vessel take in Goods and Passengers mend and furnish the Ship and to that effect if need be in a strange Countrey he may borrow Money with advice of his Marriners upon some of the Tackle or sell some of the Merchandize If part of the Goods shall be sold in such necessity the highest price that the remainder are sold for must be answered and paid to the Merchant after which the Merchant must pay for the Freight of those Goods as well as for the remainder Leg. Oleron 1. But if the Ship in the Voyage happens to be cast away then onely shall be tendred the price that the Goods were bought for By the Common Law the Master of a Ship could not impawn the Ship or Goods for no property either general or special nor such power is given unto him by the constituting of him a Master Yet the Common Law hath held the Law of Oleron reasonable That if a Ship be at Sea and takes leake or otherwise want Victual or other Necessaries whereby either her self be in danger or the Voyage defeated that in such case of necessity the Master may impawn for Money or other things to relieve such Extremities by imploying the money to that end and therefore he being the person trusted with the Ship and Voyage may therefore reasonably be thought to have that power given to him implicitly rather then to see the whole lost But a Master for any debt of his own cannot impawn or Hipothycate the Ship c. for the same is no wayes lyable but in cases of neccssity for the relief and compleating of the Voyage Nor can he sell or dispose of the same without an authority or Licence from the Owners and when he does Impawn or Hipothycate the Vessel or Furniture he ought to have the consent and advice of his Marriners XV. And where the Ship is well engaged she is for ever obliged and the Owners are concluded thereby till Redemption But in regard Masters might not be tempted to engage the Owners or infetter them with such sort of Obligations but where there is very apparent cause and necessity They seldome suffer any to go Skipper or Master but he that has a share or part in her so that if Moneys or provisions be taken
Master shall lift up the Towell 3. times before any Marriner and he shall not submit the Master at the next place of land may discharge him and if he refuses to go ashoare he shall lose half his wages and all his Goods within the Ship If the Marriner shall submit and the Master will not receive the same he shall have his whole Wages Or if the Marriner shall depart the Ship on the Master's command and the Master happens not to take another if any damage happens to Ship or Goods the Master must answer III. Marriners must help one another at the Sea and in Port if they refuse upon the Oaths of his Fellowes he loseth his wages None of the Crew must or ought to leave the Ship without leave of the Master when she comes to a Port or rides at Anchor but alwayes constantly to wait upon her till they are discharged or have leave at least half to be left a ship-board A Marriner may not carry out of the Ship above one meals meat but drink not a drop and when a shipboard ought not to be there arrested for debt but onely so much of his wages in the hands of the Master attached yet this is doubted if it be not on a sworn debt t hat is a Judgment or Sentence or a penalty to the King They ought not to depart from a Shipboard when once admitted into their full pay which is always when they break ground without licence of the Master and before they may so do they are to leave a sufficient number to guard the Ship and Decks IV. If the Ship breaks ground and is set sayl if after she arrives at her desired Port their full pay continues till she returns nor may they in any wise depart from a shipboard without leave or licence of the Master if they do and any disaster happens they must answer yet at such Port if the Vessel be well moared and Anchored with two Cables they may go without leave yet so as they leave a sufficient number behind to guard the Decks but then their return must be in due season for if they make a longer stay they must make satisfaction V. If Marriners get drunk and wound one another they are not to be cured at the charge of the Master or Ship for such Accidents are not done in the service of the Ship but if any of the Marriners be any wayes wounded or do become ill in the Service of the Ship they are to be provided for at the charges of the Ship and if they be so ill as not fit to travail they are to be left ashoare and to take care he hath all accommodations of humanity administred to him and if the Ship is ready for a departure she is not to stay for him if he recover he is to have his full wages deducting the Masters charges which he laid out for him VI. In case of Storm if Goods are cast over-board for lightning the Ship the Oaths of the Marriners who swearing that it was done for the preservation of the Vessel and the rest of the Lading the same shall discharge the Master So Goods damnified at Sea are cleared by the Oath of the Master and Marriners by the Laws of Olerone To assault the Master a shipboard is a Crime that subjects the Marriner's hand to be cut off unless he redeems at 5. Solz VII If a Ship happens to be seized on for Debt or otherwise to become forteited the Marriners must receive their wages unless in some cases where the wages is forfeited as well as the Ship As if they have Letters of Mart and instead of that they commit Pyracy by reason of which there becomes a forfeiture of all but lading of prohibited Goods aboard a Ship as Wooll and the like though it subjects the Vessel to a forfeiture yet it disables not the Marriner of his wages for the Marriners having honestly performed their parts the Ship is tacitly obliged for their wages But if the Ship perishes at Sea they lose their wages and the Owners their Freight And this being the Maritime Custome is allowed by the Common Law as well as the Civil Law VIII The Courts at Westminster have been very favourable to Marriners in order to the suing for wages for at the Common Law they cannot joyn but must sue all distinct and apart for their wages Yet in the Admiralty they may all joyn and the Courts at Westminster will not grant a Prohibition And so it was Rul'd where one Jones a Master of a Ship was sentenc'd in the Admiralty for Wages at the Suit of Poor Marriners a Prohibition being prayed upon a suggestion that the Contract was made at Land and not super altum mare The Court denyed it for that he came too late Sentence being given below against him Yet if the Marriners had onely Libelled and there had been no Sentence and the Defendant had prayed a Prohibition as above yet the Court would have denyed it And this has been and is usually done But the Court will be very well informed that the Libel is for Marriners wages for some who work Carpenters work and such like labour aboard a Ship in a Haven or Port within the Realm which is infra Corpus Comitatus notwithstanding those great and ingenious Objections against it and must be tryed by the Common Law and not elsewhere will libel under that cloake for Marriners wages But the Court in that case will grant a Prohibition And so it was done in the like case But if a Ship rides at Anchor in the Sea and the Master sends his Boat a shoare for Victuals or other provisions for the Ship and accordingly the Providore or the Slopp-seller does bring victuals and provisions aboard in that case if the contract be made there it must be sued for in the Admiralty but if the goods are by the Purser or Marriners contracted for at land they must sue at Common Law IX If Goods are so imbezled or so damnified that the Ships Crew must answer the Owners and Master must deduct the same out of their Freight to the Merchants and the Master out of the wages of the Marriners for though Freight is the Mother of wages so is it the very Father of Damage For before the Marriner can claym his wages out of what the Ship hath earn'd the Ship must be acquitted from the damage that the Merchant hath sustain'd by the negligence or fault of the Marriners And the reason is for that as the Goods are obliged to answer the Freight so the Freight and Ship is tacitly obliged to clear the damage which bâ—…ing done the Marriners are then let in to their wages X. If a Marriner be hyred and he deserts the Service before the Voyage ended by the Law Maritime he loses his wages And the same Custome at Common Law pleaded it hasbeen conceived will barr him If a Marriner
shall commit any wilful or negligent fault by reason of which the Master Owners or the Ship answers damage to the Merchant an Action lyes well against him XI If a Marriner takes up moneys or Cloaths and the same is entred in the Purser's Book by the Custome Maritime it is a discount or a receipt of so much of their wages as the same amounts to and in an Action brought by them for their wages the same shall be allowed and is not accounted mutual the one to bring his Action for the cloaths and the other for his wages XII A Master of a Ship may give moderate and due Correction to his Marriners and if they bring an Action against him he may justifie the same at the Common Law and by the Law of Oleron if a Marriner shall assault the Master he is to pay 5. Solz or lose his hand Marriners after they have unladed the Ship if they demand their wages and there be any intention of their departure the Master may detain a reasonable proportion of the same till they bring back the Ship or give caution to serve out the whole Voyage XIII Barratry of the Marriners is a Disease so Epidemical a shipboard that it is very rare for a master be his Industry never so great to prevent a Span of Villany a shipboard soon spreads out to a Cloud for no other cause but of that circular encouragement that one knavish Marriner gives to another However the Law does in such cases impute offences and faults committed by them to be negligences in the Master and were it otherwise the Merchant would be in a very dangerous condition The Reasons why they ought to be responsible are for that the Marriners are of his own choosing and under his Correction and Government and know no other Superiour a shipboard but himself and if they are faulty he may correct and punish them and justifie the same by Law and likewise if the fact is apparently proved against them may re-imburse himself out of their wages XIV And therefore in all cases wheresoever the Merchants loads aboard any Goods or Merchandize if they be lost imbezled or any otherwise damnified he must be responsible for them for the very lading them aboard makes him lyable and that as well by the Common Law as the Law Maritime XV. Nay if his Marriners go with the Ship Boat to the Key or Wharfe to fetch Goods a Shipboard if once they have taken charge of them the Master becomes immediately responsible if they steal lose damnifie or imbezle them XVI The antient'st Record that is found extant is that in Edw. the Third's time where one brought an Action of Trespass against the Master for the imbezlement by his Marriners of 22 pieces of Gold Bowe Sheaf of Arrowes Sword and other things And adjudged he should answer And for that the same is or may be of great moment accept of a Transcript of the Record as the same was certified into Chancery in order to have it sent into the Kings-Bench to enable the Plaintiff to bring an Action upon the same Judgment in any place in England where he could meet with the Defendant VEnerabili in Christo Patri DnÌ„o I. Dei gratia Wygorn Episcopo DnÌ„i Regis Ed. CancellarÌ„ vel eius locum tenenti sui humiles devoti Robertus Gyene Major Uille Bristol Edwardus Blanckett IohÌ„es de Castle-acre Ballivi libertatem ejusdem Uille salutem cum Omnia reverentia honore De tenori Recordi ê“cessus loquelle que fuit coram nobis in CurÌ„ Domini Regis ibm sine braevi inter HenrÌ„ Pilk Iurdanum Uenere Magistrum navis vocÌ„ la Graciane de Bayone in plito transgressÌ„ ê“ut ê‘ breve DnÌ„i Regis nobis directum fuit vos inde certificatur sub sigillis nrÌ„is vobis si placet mitimus in hijs scriptis Ad placit Tols tentÌ„ ibm die Martis ê“x post Festum Epiphaniae Domini anno Regni Regis nunc 24. HenrÌ„ Pilk querÌ„ opt se. versus Iurdanum Uenore Magistrum navis vocatÌ„ la Graciane de Bayone de plito transgressÌ„ ê‘ pl c. unde querÌ„ quod secundum legem consuetudinem de OLERON unusquisque Magister navis tenetur respondere de quacunque transgrÌ„ ê‘ servientes suos in eadem fact IohÌ„es de Rule Fartolet de Fornes Servientes pÌ„dicti Iurdani Magisteri navis pÌ„dicte die MercurÌ„ ê“x ' ante Festum Omnium Sanctorum Anno Regui pÌ„dicti Regis Ed. 23. in Mari iuxta Britan in eadem navi de Iohanne de CornubÌ„ servientÌ„ pÌ„dictÌ„ HenrÌ„ 22. libtÌ„ in auro arcus Sagit glad al bona catalla ad valencÌ„ 40 l. ceperunt asportaverunt injuste c. ad dampnum pÌ„dictÌ„ HenrÌ„ 60 l. si pÌ„dictus Iurdanus hoc velit dedicere pÌ„dictÌ„ HenrÌ„ paratus est verificare c. Et pÌ„dictus Iurdanus venit dicit qd lex de Oleron talis est qd si aliqua bona catalla Magistro alicujus navis liberata sunt custodiend unde idem Magister ê“ eisdem vel ê“ aliqua alia re in eadem navi facta manucapÌ„ illo modo MagrÌ„ navis tenetur respondere non alio modo Et suê‘ hoc petit Iudicium Et pÌ„dict HenrÌ„ dicit qd unusquisque Magister navis tenetur respondere d oe quacunque transgressione ê‘ servientes suos in navi sua fact petit Iudicium simlrÌ„ Et suê‘ hoc pÌ„dicte ê‘tes habent diem hic die Sabati ê“xÌ„ post Festum scÌ„i Hillarij ê“xÌ„ futurÌ„ ad audiend judicium suum c. Ad quem diem pdicte ê‘tes venerunt petierunt Iudicium suum c. Et recitat Recordo processu pÌ„dictis in plena Curia Coram Majore Ballivis alijs probis hominibus Uille Magistris Marinarijs visum fuit Curie quod unusquisque Magister navis tenetur respondere de quacunque transgressione ê‘ servientes suos in navi sua facta Ideo consideratum est quod pÌ„dict HenrÌ„ recuperet dampna sua 40 l. vsus pÌ„dict Iurdanum ê‘ CurÌ„ taâ—at nichilominus idem Iurdanus transgressione pÌ„dicta in miÌ„a XVII The Master subject to answer damage is to be understood in all such cases where the Lading was brought aboard either by his consent or his Pursers for any other or such as shall be secretly brought in not being entred in the Purser's Book or in the Bills of Lading the Master is not obliged to see forth-coming unless it be such Goods as the parties bring into the Ship about them as cloaths money and the like as above those things being seldome entred yet most commonly are visible the Master by Law is responsible for XVIII So likewise if a Master forewarn a Passenger to keep his Goods and that he will no wayes take care of them and if they be lost or purloyned by the Crew he will not be obliged to see
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
the remainder of the Goods by way of Contribution If they chance to be cast over-board before half the Voyage performed then they are to be esteemed at the price they cost if after then at the price as the rest or the like shall be sold at the place of discharge VII As the Common Law looks upon the Goods and Cargo as a pawn or pledge for the Freight so the Maritime Law looks upon them likewise as a security for the answering the Averidge and Contribution and that the Master ought not to deliver the Goods till the Contribution is settled the same being tacitly obliged for the one as well as the other Ad leg Rhod. l. 2. Si non conservatis VIII If through the rifling of the Ship or the casting or unlightning the Ship any of the remaining Goods are spoyled either with wet or otherwise the same must come in to the Contribution for so much as they are made worse IX If it falls out that a Ship entring into a Port or Channel cannot make way and there be a lightning or disburdning of the Ship then the Contribution falls two parts to the Lading and one third to the Ship except the Ship surpass in value the Lading or that there is some bad quality in the Ship it self But to prevent that ambiguous Question if the party Covenants that the Goods shall be delivered at the Port. Covenanted and appointed then Condition makes Law So for the Pylotts Fee and raising of the Ship off ground when there is no fault in the Master X. If two Ships happen to encounter and Cross each other and the Crew swear their Innocency Contribution must be made by a just equality but if one perishes then can there be no proportion of the loss so no Contribution The reason that is given for that otherwise a Skipper might of purpose set an old weak Ship against a strong Ship and by that means hedge himself into a Contribution and recompence However this barrs not the Owners from bringing their Action against the negligent Master by which means he may recoope himself in damage if it happens at Sea the Action by the Civil Law is called Legis Aquilae If such a misfortune happens in the Night at Sea the party if he will compleatly arm himself for his recovery ought to prove that he made out Light or Fire or otherwayes gave notice by crying or calling out XI If it falls out the Ship or Vessel by the indiscreet Stowing or Lading the Ship above the Birth-mark such ejection happen'd in that case it has been used by the Maritime Lawes no Contribution to be made but Satisfaction is to be answered by the Ship Master or Owners XII If to avoid the danger of a Storm the Master cuts down the Masts and Sayls and they falling into the Sea are lost this damage is to be made good by Ship and Lading pro rata otherwise if the case happens by storm or other Casualties No Contribution is to be paid in case one Ship strike against another whereby damage happens but full Satisfaction is to be answered the Merchant in case of fault or miscarriage in either or an equal division of the damage in case it happen by a Casualty as above If a Lighter or Skiff or the Ships Boat into which part of the Cargo is unladen for the lightning of the Ship perish and the Ship be preserved in that case Contribution is to be made but if the Ship be cast away and the Lighter Boat or Skiff be preserved there no Contribution or Averidge is to be had it being a Rule No Contribution but where the Ship Arrives in Safety XIII If a Ship happens to be taken and the Master to redeem the Ship and Lading out of the Enemies or Pyrats hands promises them a certain sum of money for performance whereof himself becomes a Pledge or Captive in the Custody of the Captor in this case he is to be redeemed at the costs and charges of the Ship and Lading and Money if there be any in her are contributory according to each mans interest for his ransome So where a Pyrat takes part of the Goods to spare the rest Contribution must be paid But if a Pyrat takes by violence part of the Goods the rest are not subject to Average unless the Merchant hath made an express agreement to pay it after the Ship is robb'd But if part of the Goods are taken by an Enemy or by Letters of Marque and Reprizal è contra So likewise in storm if the same is done for preservation of the remainder XIV In Ejectment the Master or Purser of the Ship shall contribute for the preservation of the Ship and also the Passengers for such Ware as they have in the ship be it Pearls Pretious Stones and such like and Passengers that have no Wares or Goods in the ship yet in regard they are a burthen to the ship Estimate is to be made of his and their Apparel Rings and Jewels towards a contribution of the loss and generally all things in the ship except the Victualling and Provisions of the ship and the bodies of men unless Servants must bear a proportionable share in the Contribution The Estimate being made of the Goods lost and saved the price is to be set down not for how much they were bought but how much they might be sold at the time when the Ejectment was made and if any thing be flung into the Sea and endamaged and afterwards is recovered again yet contribution is to be made onely for the damage XV. Contribution is to be paid for the Pylot's Fee that hath brought a Ship into a Port or Haven for her safeguard it being not the place she was designed for so to raise her off the ground when there is no fault in the Master If a Master of a Ship lets out his Ship to Freight and then receives his compliment and afterwards takes in Goods without leave of the Freighters and a Storm arises at Sea and part of the Freighters Goods are cast overboard the remaining Goods are not subject to the Averidge but the Master must make good the loss out of his own purse The Goods which are lost are to be valued then the Goods saved are to be estimated which being known a proportionable value is to be contributed by the goods saved towards reparation of the goods ejected or cast overboard In which regard is alwayes had not to what might be got by the Goods lost but what the intrinsick damage is by the loss of the same the which are not to be estimated what they might have been sold for as what they cost or were bought for But now the Custome is general the Goods saved and lost are estimated according as the Goods saved were sold for Freight and other necessary charges being first deducted If there were
Plate Jewels or the like in a Trunk Chest Pack or Bale at the time of their Ejection if there be a super Cargoe he ought to give notice by discovering of the same to the Master or Marriners otherwise he shall be answered in the Contribution no more then the bare extrinsick value appeared to be but the Assurors will hardly fare so well If Contribution shall be setled and the Merchant will not agree the Master may detain the Lading for the same is as tacitly obliged to answer that as the Freight And if at the Common Law the Merchant should bring an Action the Defendant shall barr him by pleading the special matter If Goods are cast overboard and afterwards are recovered Contribution ceases saving for so much as they are damnified and made worse by reason of such Ejectment Note Goods cast overboard to lighten the ship make no derelict And though such necessity seems to subject the Lading to Ejectment to prevent the ruine and destruction of the persons yet some Lading seems excepted and therefore Canon and other Instruments or Provisions consigned to relieve a City ought not to be flung over-board for in such case the Law imposeth on every subject that he prefer the urgent Service of his Prince before the safety of his life CHAP. VII Of Pollicies of Assurance I. Assurances by whom first introduced II. Assurances the nature of them III. How esteemed of by Law IV. The various wayes of Ensureing and on what V. Assurance when esteemed most dangerous and of fraudulent Pollicies VI. Of the Receipt of Preimio and the custome of abatement on losses VII Pollicies that now ensure against all the Accidents of Heaven and Earth VIII A Ship Ensured generally whether the same includes the Cargoe and whether it is necessary in the Pollicy to mention the particular Goods IX If the Master is discharged of the damage whether the Ensurer may be made lyable X. A Ship Ensured from a Port and she is burnt before her departure whether the Assurers are made lyable XI Goods Ensured in one Ship are afterwards in the Voyage put into another the second miscarries whether the Assurors are made lyable XII A man Ensures more than the value of the Cargo the Custome in such case XIII A Ship is Ensured from one Port to another and there to be landed the Cargoe after arrival is sold and before landing is burnt whether the Assurors shall be made answerable XIV A Ship Ensured from one Port to blanck being in time of Warr taken whether the Assurors shall answer XV. Of the Ensureds renouncing after a loss and what operation the same has by Custome XVI Of the Office erected by the Statute of 43 Eliz. what power of the Jurisdictions claymed by those at Common Law and the Admiralty XVII What power and authority was given by the Statute of 43 Eliz. to that Court XVIII What things it was deficient in and holpen by the Statute of 14 Car. 3. cap. 23. and of their authority and power general at this day XIX Of the advantageâ—… that seem to accrew to publique Assurances different from privatâ—… ones IT is conceived by Suetonius that Claudius Caesar was the first that brought in this Custome of Assurance by which the Danger and Adventure of Voyages is divided repaired and born by many persons who for a certain sum by the Spaniard called Premio assure Ship or Goods or both or a proportion according as the Pollicy is II. Assurances are either publique or private Publique when they are made and entred in a certain Office or Court commonly called the Office of Assurance in the Royal Exchange in London and the same are called publique for that it is free for any man to resort and see what another hath assured upon his Adventure Private is when an Assurance is made but the Ensured keeps the same secret not deeming it fit that any should see or know their Cargoe or Adventure or what Premio they have given or assurance they have made and the same being never entred in the Office is known by the name of a Private Assurance III. By the Common Law they are both of the same validity as in reference to obtain Satisfaction from the Ensurors if loss or damage should happen to the Adventure But by the proceedings erected by Statute of 43 Eliz. Cap. 12. onely those that are entred in the Office of that Court can be sued or determined there IV. Assurances are of various sorts some being to places certain others general those that are made to places certain are commonly upon Goods laden or to be laden aboard outward and untill the same Adventure shall be laid ashoare at such a Port. Or upon Goods laden or to be laden homeward in such a Ship till the Adventure shall likewise be landed Or else upon Goods out and in with liberty to touch at such Ports as are mentioned in the Pollicy So likewise on Ships that go Trading Voyages as Round to Cales and that it shall be lawful after the Ships delivery there to take in at the same Port another Cargoe and with that proceed to the West-Indies or other parts and back again to Cales and from thence to London this Pollicy being general and dangerous procures seldome subscriptions As Goods and Merchandize are commonly Ensured so likewise are the Ships Tackle and Furniture but in regard there seldome happens a Voyage but somewhat is missing or lost the Premio commonly runs higher then for Merchandize Assurances may be made on Goods sent by land so likewise on Hoyes and the like V. Those Assurances are most dangerous when there are these words inserted lost or not lost which is commonly done when a Ship hath been long missing and no tydings can be had the Premio especially in time of Warr will run very high sometimes 30 or 40 per Cent ' and though it happens at the time that the subscription is made the ship is cast away yet the Assurers must answer But if the party that caused the Assurance to be made saw the Ship wreckt or had certain intelligence such subscription will not oblige the same being accounted a meer fraud So likewise if the Assured having a rotten Vessel shall assure upon the same more then she is worth and afterwards give order that going out of the Port she should be sunk or wreckt this will be fraudulent and not oblige the Assurors to answer VI. Few or scarce any Ensure the whole Ship but the Subscriptions being for Sums certain as 50 l. or 500 l. at the Premio then current which when the Adventure is born they receive but if a loss happens the Premio is deducted together with the usual abatemate so that the Ensured receive much about 80 per Cent. if a loss happens VII The Pollicyes now adayes are so large that almost all those curious Questions that former Ages and the Civilians according to
the Law Maritime nay and the Common Lawyers too have controverted are now out of debate scarce any misfortune that can happen or provision to be made but the same is taken care for in the Pollicyes that are now used for they Ensure against Heaven and Earth Stress of Weather Storms Enemies Pyrats Rovers c. or whatsoever detriment shall happen or come to the thing Ensured c. is provided for VIII If a Merchant Ensures such a Ship generally and in the Pollicy it is expressed of such a Burthen the Ship happens then to be loaden and after miscarries the Ensurer shall not answer for the Goods but onely for the Ship It matters not in the Pollicy whether the particular Wares and Goods are named but generally upon the principal Wares and all other Commodities laden or to be laden for the Ensured or for his account or for any other X. If a Ship be Ensured from the Port of London to Cales and before the Ship breaks ground takes fire and is burnt the Assurors in such case shall not answer for the Adventure begun not till the Ship was gone from the Port of London but if the words had been at and from the Port of London there they would upon such a misfortune have been made lyable If such an Assurance had been from London to Cales and the Ship had broke ground and afterwards been driven by storm back to the Port of London and there had took fire the Ensurers must have answered for the very breaking of ground from the Port of London was an inception of the Voyage XI If Goods are Ensured in such a Ship and afterwards in the Voyage it happens she becomes leaky and creazy and the super Cargoe and Master by consent become Freighters of another Vessel for the safe delivery of the Goods and then after her relading the second Vessel miscarries the Assurors are discharged But if there be these words The Goods laden to be transported and delivered at such a place by the said Ship or by any other Ship or Vessel untill they be safely landed then the Ensurers must answer the misfortune XII If a man Ensures 5000 l. worth of Goods and he hath but 2000 l. remitted now he having ensured the real Adventure by the Law Maritime all the Assurors must answer pro rata But by the opinion of some onely those first Subscribers who underwrit so much as the real Adventure amounted to are to be made lyable and the rest remitting their Premio 10 s. per Cent. deducted out of the same for their subscriptions are to be discharged XIII A Merchant Ensures his Goods from London to Sally and there to be Landed the Factor after arrival having opportunity sells the Cargo aboard the same Ship without ever unlading her and the buyer agrees for the Freight of those Goods for the Port of Venice before she breaks ground the Ships takes fire the Assured is absolutely without remedy for the property of the Goods becoming changed and Freight being contracted de novo the same was as much as if the Goods had been landed And so it is if the Factor after her arrival had contracted for the Freight to another Port and the Ship had happened to take fire the Assurors are hereby absolutely discharged for ever XIV If a Ship be Ensured from London to and blanck being so left of purpose by the Lader to prevent her surprize by the Enemy in her Voyage she happens to be cast away though there be private Instructions for her Port yet the Ensured sit down by the loss by reason of the uncertainty XV. After notice of loss the Ensured if he doth think fit for that he hath Ensured the most of his Adventure or that he would have the assistance of the Assurors when there is hope of Recovery of the Adventure he may then make a Renunciation of the Lading to the Assurors then he comes in himself in the nature of an Ensurer for so much as shall appear he hath born the Adventure of beyond the value Ensured But if the Merchant shall not renounce yet there is a power given in the Pollicy for him to travail pursue and endeavour a recovery if possible of the Adventure after a misfortune to which the Assurors are to contribute the same being but a trouble to give ease to the Assours If prohibited Goods are laden aboard and the Merchant ensures upon the general pollicy which alwayes contains these words Of the Seas Men of Warr Fire Enemies Pyrats Rovers Theeves Jettezons Letters of Mart and Covenants Arrests Restrainment and Detainments of Kings and Princes and of all other persons Barratry of the Master and Marriners and of all other perils lossâ—…s and misfortunes whatsoever they be and howsoever they shall happen or come to the hurt and detriment of the Goods and Merchandize or any part and parcel thereof whether if such Goods be lawfully seized as prohibited goods the Ensurors ought to answer It is conceived they ought not and the difference hath been taken where Goods are lawful at the time of Lading to be imported into that Country for which they are consigned for but by matter ex post facto after the lading they become unlawful and after arrival are seized there the Assurors must answer by virtue of the Clause And all other perils c. But if the Goods were at the time of lading unlawful and the Lader knew of the same such Assurance will not oblige the Assurors to answer the loss for the same is not such an Assurance as the Law supports but is a fraudulent one So it is if a Merchant will Freight out Wooll Leather and the like or send out Goods in a Forraign bottome and then make a Pollicy the Ship happens afterwards to be taken by reason of which there becomes a forfeiture of Ship and Lading the Ensurers are not made subject to answer the damage for the very Foundation was illegal and the Law supports only those Assurances that are made bona fide for if otherwise and men could be Ensured against such actions they would destroy Trade which is directly to thwart the institution and true intentions of all Pollicyes But if Goods should happen to be lawfully Ensured and afterwards the Vessel becomes disabled by reason of which they relade by consent of the super Cargoe or Merchant into another Vessel and that Vessel after arrival proves the Ship of an Enemy by reason of which the Ship becomes subject to seizure yet in this case the Ensurors shall answer for that this is such an accident as is within the intention of the Pollicy Several men lade aboard Salt without distinction not putting them in Sacks and the like the Ship arrives the Master delivers to their Principals according to their Bills of Lading as they come one by one it falls out that some of the Salt is wâ—…sht or lost by reason of
any damage happens they are to make full satisfaction so it is if they lay out an Anchor and neglect the placing of a Buoy to the Anchor and damage happen thereby they are not onely subject to be punished in the Admiralty but likewise to render satisfaction to the party damnified If two Ships be in the River and the one falls foul on the other both being laden by the Law Maritime the Contribution is to be in Common and to be equally divided and apprized half by half but then the Marriners must swear there was no fault in them for otherwise one that hath an old rotten Vessel which he can no wayes dispose of may so order the matter as to lay her in the way of a good Ship under sayl so that the same may be answered in damage but when the Contribution is made equal then the contrivance will be avoided CHAP. X. Of Bills of Exchange I. Of the Antiquity of Exchange by the Hebrew Law II. Of the Antiquity of Exchange by the Romans III. Of Exchanges by other Nations in imitation of those people IV. Of the several sorts of Exchanges and of Cambio commune V. Of Cambio real or Exchanges value for value VI. Of Cambio sicco or dry Exchanges VII Of Cambio fictitio or seigned Exchange VIII Of the Exchanges used this day and on what IX How Exchanges are made and upon Moneys in London X. Moneys paid generally how repaid by Exchange XI Of Bills of Exchange payable at single usance XII Bills of Exchange at double or treble usance and of the customary usances to certain places from London and Amsterdam to other places XIII Of the nature of Bills of Exchange and how esteemed of by the Lawes of England XIV Bills drawn more then one no prejudice to the parties and of the true measure of judging on Bills by Custome XV. What amounts to an acceptance generally and on refusal where to be protested XVI All the drawers are made lyable and whether the party to whom the Money is made payable is bound to procure an acceptance XVII Protest what is meant by the same and where the same is necessary and where not XVIII Bill drawn on two persons where the same is necessary and where not XIX One Factor serves a Company where a Bill accepted of his by one of the Company obliges the rest and where not XX. What words amount to an acceptance and what not XXI Where a Bill may be accepted for part and what must be done with the Bill thereupon XXII When a Countermand may legally be made and when not XXIII How the several parties interessed in a Bill of Exchange are obliged and fettered to each other XXIV How a Collateral security may be annexed to a Bill when the time is elapsed for non-payment XXV Where the Protest is onely necessary to be kept and where that and the Bill must both be remitted XXVI Bill lost what is necessary for the parties interessed in such case to act XXVII Of blanck Endorsements the validity of the same XXVIII A Bill once accepted whether the same may be revoked and whether it may be accepted to be paid at a longer time then is mentioned and what Protests are then necessary to be made XXIX Of Bills accepted for the honour of the drawer where the same shall oblige XXX The time customary allowed for payment after failer of payment at the day XXXI Of the validity of the speedy protest as in relation to recover the money to be paid on the drawer XXXII Bill accepted and before the day of payment the Acceptor is a sayling what 's necessary to be done as in reference to obtaining better security XXXIII Bills accepted for the honour of the drawer where turned into an act and remitted by him that gives honour to the Bill XXXIV The Acceptor ready to pay but the party to whom made payable is dead what is necessary XXXV Causes general for a Protest and where satisfaction to the deliverer discharges all parties XXXVI Of Exchange by way of Credit XXXVII One payes a Bill before it be due and the party to whom the same was paid fails where he shall be answerable to the drawer notwithstanding XXXVIII Of Bills assignable over according to the Customes of Merchants what operation in England I. THe Exchange for Moneys is of great Antiquity as well by observation of the Hebrew Customes as those of the Romans Upon the first of the Month Adar Proclamation was made thoroughout all Israel That the People should provide their half Shecklâ—… which were yearly paid towards the Service of the Temple according to the Commandement of God on the 25th of Adar then they brought Tables into the Temple that is into the outward Court where the people stood on these Tables lay the lesser Coyns which were to furnish those who wanted half Sheckles for their Offerings or that wanted lesser pieces of money in their payment for Oxen Sheep Doves and the like which stood there in a readiness in the same Court to be sold for Sacrifices but this supply and furnishing the people from those Tables was not without an Exchange for other money or other things in lieu of money and that upon advantage Hence all those that sate at the Tables were called chief Bankers or Masters of the Exchange II. By the Romans it is supposed to be in use upwards of 2000 years Moneys being then elected out of the best of Metals to avoid the tedious carriage of Merchandize from one Countrey to another So other Nations imitating the Jewes and Romans erected Mints and coyned Moneys upon which the Exchange by Bills was devised not onely to avoid the danger and adventure but also its troublesome and tedious carriage III. Thus Kingdoms and Countreys having by their soveraign authorities coyned Moneys caused them to appoint a certain Exchange for permutation of the various Coyns of several Countreys without any transportation of the Coyn but giving par pro pari or value for value with a certain allowance to be made those Exchangers for accommodating the Merchants IV. As Commerce became various so Exchange numerous but generally reduced to four Cambio Commune Cambio real Cambio sicco and Cambio fictitio Cambio Commune in England was those that were Constituted by the several Kings where having received Moneys in England would remit by Exchange the like sum to be paid in another Kingdome Edward the Third to ascertain the Exchange caused Tables to be set up in most of the gâ—…eral Marts or Ports of England declaring the values of all or most of the Forraign Coyns of those Countries where his Subjects held correspondence or Commerce and what allowances were to be made for having Moneys to be remitted to such Countryes or Kingdoms V. Cambio real was when Moneys were paid to the Exchanger and Bills were drawn without naming the Species but according to the value of the several Coyns which two Offices afterwards were
any Money doth daily VI. Money is an invention onely for the more expedite Permutation of things but it doth not follow that men may ' not make any Permutations but by Money even as well now as if we were in our natural state if they who digg now in waste Hills had their Harvest of their Beans well gathered in but had need of Wine for the Stomachs sake or of Druggs for healths sake if the Vintner or Apothecary have no need of Beans what use will they make of the natuaal value of their Beans without Money Or if need be what would they do till their Beans are gathered Money therefore hinders not Permutation and Commerce of natural things but assists them nay it is therefore an Instrument of Instruments for he who hath Money may buy things which he need not use but sell thereby to get other things afterwards for his use There is no Nation or People so barbarous but have Money or a publique Instrument of Permutation either in Metals or Fish-bones c. for it imports not so much of what matter it is provided it be durable not counterfeitable and difficult to come by VII Take away this fungible Instrument from the service of our necessities and how shall we exercise our Charity which is a branch of Religion and Justice as well as of humanity He who goes to Church passeth as it were thorough two Temples the Poor at the Porch and the Temple it self and the giving at the Porch is called Sacrifice Offering and Gift as well as that at the Altar God would be sacrificed to onely in one Town of the World Jerusalem But could that have been if Money and Money-changers had not been allowed How could they who came from such remote places have by any other means brought their Oxen Calves Goats and Doves to the Altar If there were nothing further to shew but that one piece which our Saviour himself coyned miraculously in the mouth of a Fish it were Argument sufficient that the use of Money may be both good just and necessary VIII Things being thus stated and that Money is both good just and necessary it will be demanded loudly That admitting a reasonable advantage may be made by way of Usury quo jure it is that an advantage upon the same more than what the Law allowes is taken The distinction is great between Moneys lent to be used in Commerce at Land and that which is advanced to Sea In the first the Lawes of the Realm have set marks to govern the same whereby the Avaritious mind is limited to a reasonable profit The reason of that is because the Lender runs none but the borrower all the hazard whatever that money brings forth But money lent to Sea or that which is called pecunia trajectitia there the same is advanced on the hazard of the Lender to carry as is supposed over Sea so that if the Ship perishes or a spoliation of all happens the Lender shares in the loss without any hopes of ever receiving his Moneys and therefore is called sometimes usura Maritima as well as Faenus Nauticum the advantage accrewing to the Owners from their Money arising not from the loan but from the hazard which the Lender runs the which is commonly reduced to a time certain or one or more Voyages according to their several and respective agreements IX If the Bonds be sealed and the money is advanced if the Ship happens to miscarry by Storm Fire Enemy or any otherwise before the Voyage begun then the borrower runs the Risque unless it be otherwise provided generally as that if such a Ship shall not arrive at such a place at such a time c. there the Contract hath its inception from the sealing but if the Condition be That if such a Ship shall sayl from London to Amsterdam and shall not arrive there c. then c. There the contingency begins not till the departure Yet it has been conceived That if the Master takes up Money accordingly and buyes in a lawful Lading but will happen to endeavour to defraud the Prince or State of their Customes and puts such Goods aboard by means whereof he has incurred a forfeiture of his Ship in such case the Lender is not obliged to such Hazard X. If money be lent on Shipboard by a Merchant super Cargoe or a passenger and before the day of payment the Ship happens to be wreckt or cast away if there be such a Saver as will admit a Contribution then the party is not to have his whole money but is to come into the Averldge but if the time of payment were past before the misfortune happened then the Lender must be repaid his whole Money free from Contribution And therefore by the Laws Maritime if the borrower detains any such lent Moneys beyond the term appointed for the repaying he shall at his return not only pay the profit agreed on before the Voyage but also augment the same according to the time that hath accrued since the day of payment XI A Master of a Ship hath no power to take up Money by Bottomreie in places where his Owner or Owners dwell unless it were for so much only as his part cometh unto in the said Ship otherwise he and his Estate must stand liable to answer the same But when a Master is out of the Countrey and where he hath no Owners nor any Goods of theirs nor of his own and cannot find means to take up by Exchange or otherwise and that for want of money the Voyage might be retarded or overthrown Moneys may be taken up upon Bottomerie and all the Owners are liable thereunto otherwise he shall bear the loss that is the Owners are liable by their Vessel though the money is not so employed in truth and the Owners have their remedy against him who they put in trust but the persons of the Owners are no wayes made lyable by the act of the Master for moneys taken up If Owners agree not in setting out the Ship most voices shall carry it and then money may be taken up for their part by Bottomerie or Faenus Nauticum or by Hypothicating such a proportion of the Ship Many Masters of Ships having Ensured or taken up Moneys upon Bottomerie to greater Sums of Money than the value of their Adventure do wilfully cast away burn or otherwise destroy the Ships under their charge the same was made Felony and the person or person so wilfully doing or procuring the same to be done were to suffer death XII The signification of this Faenus Nauticum is by the Dutch called Bomerie Bodmerie Bodemerie Boddemerij so variously pronounced from the Keel or bottom of the Ship upon the parallel whereof the Rudder of a Ship doth Govern and direct the same parte pro toto sumpta ita primum appellata cum etiam Lingua Gallorum antiqua Britanica Bodo
vel Bodun fundum aut profundum signet in quem navis fundum vel ipsam navem ejusque usum mutuo accepta est pecunia sed postea latius pro faenore nautico etiam usurpari caepit And the Money so taken up by the Master is done upon great extremity and that for the compleating of the Voyage when they are in distress and want in some Forreign parts and indeed such taking up is indeed in the nature of Mortgaging the Ship for le Neife oblige al payment de ceo c. And in the Instrument there is a Clause that expresses that the Ship is engaged for the performance of the same Moneys that are advanced are upon two Securities the one is on the bare Ship the other upon the person of the Borrower sometimes upon both The first is where a man takes up Moneys and obliges himself that if such a Ship shall arrive at such a Port then to repay perhaps double the sum lent but if the Ship happens to miscarry then nothing XIII So likewise some will take up Moneys the condition reciting Whereas there is such a Ship naming her bound to Amsterdam whereas such a man is Master whereas indeed there is no such Ship or Master in nature that if that Ship shall not arrive at such a place within 12 months the money agreed on to be paid shall be paid but if the Ship shall arrive then nothing The first of these is honourable and just according to the laudable practice among Maritime persons and though the advantage runs high as 20 30 nay sometimes 40 per Cent. without consideration of time for the Moneyes are to be paid within so many dayes after the Ships safe arrival yet in regard the Adventure is born by the Lender for if the Ship perishes the advancer loses the Lawes and Practice of all Maritime Countries allow of the same And therefore by the Common Law if an Action of Debt be brought on such an Instrument the Defendant cannot plead the Statute of Usury And so it was adjudged where one Sharpley had brought an Action of Debt on a Bond for Moneys taken up upon Bottomery The Defendant pleads the Statute of Usury and shewed that a certain Ship called the made a Voyage to Fish in New-found Land which Journey might be performed in eight months and the Plaintiff delivered 50 l. to the Defendant to pay 60 l. at the return of the Ship to D and if the said Ship by Leakage or Tempest should not return from Newfound-Land to D then the Defendent should pay the principal money and if the Ship never returned then nothing to be paid Upon Demurrer it was adjudged the same was not Usury for if the Ship had stayed at Newfound-Land 2. or 3. years yet at her return but 60 l. was to be paid and if she never returned then nothing The other advance which is upon a fictitious supposition of a Ship and Master where indeed there is no such in Nature is more unconscionable the same being the common practice that 's used amongst the Italians and now on this side the Water The same is as to internal Right unjust and cannot now be determined since it was not long since adjudged that such Contract was good according to the Common Law of this Realm and that on a Special Verdict XIV Most certain it is that the greater the danger is if there be a real adventure the greater may the profit be of the Moneys advanced * And so hath the same been the Opinion of Civilians and likewise some Divines though some seem to be of opinion That any profit or advantage ought to be made of Moneys so lent no more than of those that are advanced on simple loan and on the peril of the borrower However all or most of the Trading Nations of Christendome do at this day allow of the same as a matter most reasonable by reason of the contingency or hazard that the Lender runs and therefore such Moneys may be advanced several wayes and a profit may arise so that there runs a peril on the Lender There is likewise a second way of advancing of Moneys called Usura Maritima joyning the advanced moneys and the danger of the Sea together And this is obliging sometimes upon the Borrower's Ship Goods and Person The produce of which by agreement will advance sometimes 20 30 and sometimes 40. per Cent. As for Instance A private Gentleman has 1000 l. ready money lying by him and he has notice of an Ingenious Merchant that has good Credit beyond Seas and understands his business fully applyes himself to him and offers him 1000 l. to be laid out in such Commodities as the Merchant shall think convenient for that Port or Countrey the Borrower designs for and that he will bear the adventure of that Money during all that Voyage which he knowes may be accomplished within a year hereupon the Contract is agreed upon 6 per Cent is accounted for the Interest and 12 per Cent. for the Adventure outwards and 12 per Cent. for the goods homeward so that upon the return the Lender receives 30 per Cent. which amounts to 1300 l. The Lender in this case hath a good bargain no question Now let us see what advantage the Borrower hath 1. The Borrower prevents the taking up the like Sum at Interest which comes to 6. per Cent and Brocage which comes now in this Age thorough the generosity of the Merchant and Covetousness of the Serivener at 1. or 2. per Cent. more and then the same is let out but for 6. months and then the Scrivener inevitably at the 6. months end sends his Note that his Friend expects his Moneys to be yaid in so that to stop that gapp there must be Continuation which is at least one per Cent. more besides the obliging of Friends in Securities 2. The Assurance prevented which perhaps may come to between 5 and 20 per Cent. according as the Times are and common prudence will never suffer a Merchant to venture 2. parts of 3. parts of his Estate in one Bottome without assuring 3. As he shall not have occasion to Ensure so it may be a great occasion of preventing the common Obligation of his Ensuring of others the which in a generous Merchant in honour cannot be denyed the Premeo running pretty reasonable 4. It prevents the parties running the Risque and danger of the Seas Enemies or any other fatal loss and hath been a means to introduce a mans credit in a short time at lesser charge if not to put him in in a Condition not to be beholding to such a fair though chargeable means And this cannot be Usury by the Lawes of this Realm for the Risque and Danger that the Lender runs VI. There is also another way but that is both Honest and Honourable called Usufruite that is a Stock in a Company or Society which is perpetual
would protect them still in the Immunities and Condition she found them Hereupon their Navigation and Traffique was suspended a while which proved very advantageous to the English for they tryed what they could do themselves herein their adventures and returns proving successful they took the whole Trade into their own hands and so divided themselves to Stapters and Merchant-adventurers the one residing constant at one place the other keeping their course and adventuring to other Towns and States abroad with Cloth and other Manufactures This so nettled the Hans that they devised all the wayes that a discontented people could to draw upon our new Staplers or Adventurers the ill opinion of othhr Nations and States but that proving but of too small a force to stop the Current of so strong a Trade as they had got footing into they resorted to some other whereupon they applyed themselves to the Emperour as being a Body incorporated to the Empire and upon complaint obtained Ambassadors to the Queen to mediate the. business but they returned still re infecta Hereupon the Queen caused a Proclamation to be published That the Merchants of the Hans should be intreated and used as all other Strangers within her Dominions in point of Commerce without any mark of distinction This enflamed the more thereupon they bent their Forces more eagerly and in an Imperial Dyet at Ratsbone they procured that the English Merchants who had associated themselves in Corporations both in Embden and other places should be adjudged Monopolists whereupon there was a Comitial Edict procured against them that they should be exterminated and banished out of all parts of the Empire which was done by Suderman a great Civilian There was there at that time for the Queen as nimble a man as Suderman and he had the Chancellor of Embden to second him yet they could not stop the Edict whereby our new erected Society of Adventurers were pronounced a Monopoly Yet Gilpin played his Cards so well that he prevailed the Imperial Ban should not be published till after the Dyet and that in the interim his Imperial Majesty should send an Ambassador to England to advertise the Queen of such proceedings against her Merchants But this made so little impression on the Queen that the â—…an grew rather rediculous than formidable for the Town of Embden harboured our Merchants notwithstanding and afterwards the Town of Stode but the Hansatiques pursuing their revenge and they being not so able to protect them against the Imperial Ban removed and setled themselves in Hamburgh This Politique Princess in recompence of their revenge commanded another Proclamation to be published That the Hansatique Merchants should be allowed to Trade into England upon the same Conditions as they formerly did Provided the English Merchants might have the same Priviledges to reside and Trade peaceably in Stode or Hamburgh or any where else within the Precincts of the Hans This so incensed and nettled them That all endeavours were made to cut off Stode and Hamburgh from being Members of the Hans or of the Empire But the Design was suspended till they saw the Success of 88 King Philip having promised to do them some good Offices in the Concern But the Queen finding that the Hans were not contented with that Equality she had offered to make betwixt them and her own Subjects but were using such extraordinary means put forth another Proclamation That they should transport neither Corn Victuals Arms Timber Masts Cables Metals or any other Materials or Men to Spain or Portugal And not long after the Queen growing more redoubled and Famous by the Overthrow of King Philip's Invincible Armada as the Pope christned it the Hans began to despair of doing any good especially they having about some 60 Sayl of their Ships taken about the River Lisbon by her Majesties Frigats that were laden with Ropas de contrabanda She notwithstanding had thoughts of discharging this Fleet by endeavouring a reconcilement of the differences but she having intelligence of an Extraordinary Assembly at Lubeck which had purposely met to consult of means to be revenged of her she thereupon made absolute prize of those 60 Sayl onely two were freed to carry home the sad Tydings of their Brethrens misfortune Hereupon the Pole sent a ranting Embassador in the behalf of the Hans who spake the Injuries done to the Hans in a high tone But the Queen her self suddainly answered him in a higher with a satisfaction no greater than what she had done to others of the like quality before This fortunate Clashing for the 19. per Cent. on the Customes has proved ever since advantageous for England our Merchants have ever since beaten a peaceful and an uninterrupted Trade into High and Low Germany and by their constant Trade in those Parts have found a way thorough the White Sea to Arch-Angel and Mosco The return of all which hath since vastly encreased the Riches and Strength of this Nation V. After the Jewes became Tributary to Rome which was acquir'd by Pompey Threescore years before the Birth of our Saviour certain Officers or Commissioners were appointed by the Romans in all those places where their Victorious Standards had claymed a Conquest who used to appoint such Officers or Commissioners to Collect and gather up such Custome-money or Tribute as was exacted by the Senate Those that gathered up these Publique payments were termed Publicani Publicanes and by reason of their Cruel and Oppressive Exaction they became hateful in all Nations Every Province had his several Society or Company of Publicans Every Society his distinct Governour in which respect it is that Zaccheus is called by the Evangelists Princeps Publicanorum the chief Receiver of the Tribute or chief Publican And all the Provincial Governours in these several Societies had one chief Master or Superintendant residing at Rome unto whom the other subordinate Governours gave up their Accounts These Publicans were hated of all the Roman Provinces but especially of the Jewes because though it was chiefly maintained by the Galileans yet it was generally inclined unto by the Jewes That Tribute ought not to be paid by them This Hatred is confirmed by the Rabinical Proverb Take not a Wife out of that Family wherein there is a Publican for such are all Publicans Yea a Faithful Publican was so rare at Rome it self that one Sabinus for his honest managing of that Office in an Honourable remembrance thereof had certain Images with this Inscription 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 For the Faithful Publican No marvel that in Holy Writ Publicans and Sinners go hand in hand But now the World has been so long used to them that in all or most Nations the particular Princes or States chuse out the most Sagest and Prudent'st men for that Imployment And certainly the Customes of this Realm never did return to that great and clear Account as they have done under the Care and Prudent management of the present Commissioners
thereof and of the Customers Comptrollers Searchers and other Deputies of and within the said Ports of Sandwich and Ipswich and the several Creeks Harbours and Havens to them or either of them respectively belonging within the Counties of Kent or Essex X. And in regard that when Ships did come up to the Port of London there used to be very great Frauds committed by a promiscuous kind of shipping and landing of Goods and Merchandizes at several blind or unknown Wharfes and Keyes by reason of which his Majesty was often defeated of his Customes it was provided that a Commission might issue forth out of the Exchequer to ascertain all such Wharfes Keyes or other places as his Majesty by virtue of such Commission should appoint in pursuance of which his Majesty hath been pleased to allow to be lawful Keyes Wharâ—…s and other places for the lading or landing of Goods Brewers Key Chesters Key Wooll Dock Custome-House Key Porters Key Bear Key Sabbs Dock Wiggons Key Youngs Key Ralphs Key Dice Key Smart Key Somers Key Lyon Key Butolph Wharfe Hâ—…mons Key Gaunts Key Cocks Key Fresh Wharfe Billingsgate To be a common open place for the landing or bringing in of Fish Salt Victuals or Fuel of all sorts and all Native Materials for Building and for Fruit all manner of Grocery excepted and for carrying out of the same and for no other Wares or Merchandize Bridge-House in Southwark May be allowed a place convenient for landing of any kind of Corn bought or provided for Provision or Victualling of the City of London and not upon any private or particular persons account and for no other Goods or Merchandize XI It may be lawful for any person to ship or lade into any Ship or Vessel on the River of Thames bound over Seas Horses Coals Beer Ordinary Stones for Building Fish taken by any of his Majesties Subjects Corn or Grain the Duties being paid and Cocquets and othar lawful Warrant duly passed for the same So likewise Deal Boards Balks and all sorts of Masts and Great Timber may be unshipt and laid on Land at any place between Lyme-house and Westminster the Owner first paying or compounding for the Customes and declaring at what place they will land them before he unships them and upon Licence had and in the presence of an Officer they may unlade them otherwise they encur a forfeiture CHAP. XV. Provisions and Allowances made notwithstanding the several Clauses in the Acts for the Customes I. Custome to be paid for no more then is landed and when Bulk shall be broken II. Of Goods Imported and Exported what of the Customes shall be repaid back and by whom and of the things requisite in the same III. Of Agreement or Contracts made or to be made for the importing and exporting by way of Composition ratified IV. What Allowances to be made to the Exporters of Wines V. Of Exporting of Spanish Wooll where the same may be done VI. Of Currants Exported what Allowances shall be made and to whom as well to Denizens as Forragnâ—…s VII Goods imported not finding Market after a year Wine Exported discharged of Custome VIII What Allowances are to be made for Leakage IX What shall be accounted Leakage X. Wines proving unmerchantable what allowances to be made XI Tobaccoes receiving detriment or damage in the Importation what allowances to be made XII Strangers paying double Subsidy where they shall pay double Custome XIII Of Times and places lawful to unlade and Officers Duties then attendant to be present XIV York New-Castle and Hull men where Custome-free and for what XV. Exceter and other Western men what Free Subsidies shall be allowed in XVI Woollen where new or Old what allowances shall be made in Custome or Subsidy XVII Allowances of 5. in the Hundred for all other Goods XVIII The Customers and other Officers Duties in reference to attend their several Duties in the Customes XIX Of Officers their Duties and the punishments where made on complaint XX. The several Duties of London how preserved XXI The like for other Cities for those Duties granted or taken for publique good uses XXII Where Ships may be visited and the Officers duty relating to the same XXXIII Timber to be rated and in what manner must pay XXIV Prevention in Extortion of Customers and Officers and on what pains and penalties XXV Where Fees for Cocquets and Certificates shall be paid altogether and where he shall detain his own Cocquet till the Vessel has broke ground XXVI Where the Officers and Customers shall allow and make good to the Merchants the Algiere Duty and all other allowances and no other Imposition or Duty required by the Book of Rates shall be required or paid XXVII If Goods shall happen to be taken by Enemies or Pyrats or wreckt and what allowances shall be paid XXVIII Ships of Warr and other priviledged Vessels subject to search XXIX Of Allowances to be made and of shipping out lesser quantities then is contained in the Certificate what operation the same hath 1. EVery Merchant shall have free liberty to break Bulk in any Port allowed by Law and to pay Custome and Subsidy for no more then he shall enter and land Provided that the Master or Purser of every such Ship shall first make declaration upon Oath before any two Principal Officers of the Port of the true contents of his Ships lading and shall likewise after declare upon his Oath before the Customer Collector Comptroler Surveyor or any two of them at the next Port of this Kingdome where his Ship shall arrive the Quantity and Quality of the Goods landed at the other Port where Bulk was first broken and to whom they did belong A Merchant brought 80 Tun of Bay Salt by Sea to a Port in England and out of that ship sold 20 Tun and discharged the same into another Ship then riding at the same Port but the 20 Tun were never actually put on shoare and for the rest being 60 Tun the Master agreed for the Customes and put them on land and although that that 20 Tun was alwayes water-born and never were put on shoare yet adjudged they ought to pay the reason was for the discharging them out of the Ship amounts as much as to the laying them on Land the same being done in Port for otherwise the King would meerly be defrauded But if a Ship is carried in by storm and to preserve the Vessel part is landed before the Duty paid yet this will not subject the same to a forfeiture II. All Forraign Goods and Merchandizes except Wines Currants and wrought Silks first Imported shall be again Exported by any Merchant English within 12 months and such Merchant and Merchants as shall Export any such Forraign Goods or Merchandizes except as before is excepted shall have allowance and be repaid by the Officer which received the same the one moyety of the Subsidy which was paid at the first importation of such
Goods or Merchandizes or any part thereof so as due proof be first made by Certificate from the Officers of the due entry and payment of the Custome and Subsidy of all such Forraign Goods and Merchandizes inwards with the Oath of the Merchants importing the same affirming the truth thereof and the name of his Majesties Searcher or Under-Searcher in the Port of London and of the Searcher of any other the out Ports testifying the shipping thereof to be Exported after all which duly performed in manner before expressed the moyety of the Subsidy first paid inwards shall without any delay or reward be repaid unto such Merchant or Merchants who do export such Goods and Merchandizes within one month after demand thereof as also the whole additional duty of Silk Linnen and Tobacco as before is directed If the Officer shall refuse to pay admitting there was no Relief had by way of complaint whether the Merchant Exporter may not bring an Action against him upon the Debt created in Law as he that hath a Tally may do III. And if there be any Agreement now in force which was formerly made by the late Commissioners of the Customes and Subsidies with the Merchants Strangers or their Factors or shall hereafter be made by any Commissioners or Farmers of the Customes and Subsidies or any other power except by consent of Parliament with any Merchant or Merchants Strangers or Factors for any Forraign Goods and Merchandizes to be brought into the Port of London or any other Port or Haven of this Kingdome of England or Principality of Wales and to be Exported again by way of Composition all other Merchants being his Majesties Subjects shall be admitted into the same Composition and not to be excluded from any other priviledge whatsoever granted to the stranger by any private agreement or composition under the same Condition and with the same Restriction as shall be made with the Merchant Stranger IV. Every Merchant as well English as Stranger that shall ship and export any kind of Wines which formerly have paid all the duties of Tunnage inwards shall haâ—…e paid and allowed unto them all the Duties of Tunnage paid inward except to the Englishman 20 s. per Tun and the Stranger 25 s. per Tun upon due proof of the due Entry and payment of Tunnage inwards and of the shipping thereof to be Exported to be made as above V. If any Merchant Denizen or Stranger shall Export any Spanish or Forraign Wooll he shall have liberty so to do with this further condition That such Spanish or other Forraign Woolls whatsoever be not Exported in any other Ship or Vessel whatsoever with intent to be arrived beyond the Seas out of the Kingdome of England and Dominion of Wales then only in English Shipping upon pain of confiscation VI. Every Merchant as well English as Stranger which shall ship or Export any Currants which formerly were duly entred and paid the Subsidy and Custome inwards shall have allowed and repaid unto them respectively all the Custome and Subsidy paid inwards for the same except 1 s. 6 d. for every Hundred weight to the English and 1 s. 8 d. and one half penny for every Hundred weight to the Stranger upon due proof of the due Entry and payment of the Custome and Subsidy thereof inwards and of the Shipping thereof to be Exported to be made as in the second Article VII If any Merchant having duly paid all Duties inwards for Forraign Goods and in regard of bad sales shall be enforced to keep the same or any part thereof in his hands after the space of a year shall be elapsed in this case he or any other person is to be permitted to ship the same out for parts beyond the Seas if they think fit without payment for any Subsidy for the same outwards upon due proof that the same was duly entred and Subsidy paid inward VIII Every Merchant bringing in any sort of Wines into this Kingdome by way of Merchandize and shall make due Entries of the same in the Custom-house shall be allowed 12 per Cent. for Leakage IX Every Hogshead of Wine which shall be run out and not full seven Inches shall be accounted for outs and the Merchant to pay no Subsidy for the same And by some is conceived that no freight shall be paid for the same but the Merchant may fling them up to the Master for Freight but that should seem hard for non constat any fault in the Master but the same may be in the Cask or in the ill stowing the Master by custome having no charge of the stowing of Wines especially French but the same belongs to certain Officers beyond Seas from whence they are imported besides the Goods be they empty or full take up Tunnage in his Ship and should all the Wines a Shipboard have the same misfortune it would seem hard however it is pity Opinion in this case should amount to a laudable Custome X. If any Wines shall prove corrupt and unmerchantable and fit for nothing but to distil into hot Waters or to make Vinegar then every Owner of such Wines shall be abated in the Subsidy according to such his damages in those Wines by the discretion of the Collectors of the Customes and one of the Principal Officers XI If any Tobacco or other Goods or Merchandize brought into this Kingdome shall receive any damage by salt water or otherwise so that the Owner thereof shall be prejudiced in the sale of such Goods the principal Officers of the Custome-House or any two of them whereof the Collector for the time being to be one shall have power to choose two indifferent Merchants experienced in the values of such Goods who upon visiting of such goods shall certifie and declare upon their Corporal Oaths first administred by the said Officers what damage such Goods have received and are lessened in their true value and according to such damage in relation to the Rates set on them in the Book of values the Officers are to make a proportionable abatement 〈◊〉 the Merchant or Owner of the Subsidy due for the same XII All Merchants Strangers who according to the rates and values set in the general Book of Values and Rates and do pay double Subsidy for Lead Tiâ—… Woollen Cloth shall also pay double Custome for Native Manufactures of Wooll and the said Strangers are to pay for all other Goods as well inwards as outwards rated to pay the Subsidy of Poundage three pence in the pound or any other Duty payable by Charta Mercatoria besides the Subsidy XIII That the Merchants Trading into the Port of London have free liberty to lade and unlade their Goods at any lawful Keyes and places of shipping and lading of Goods between the Tower of London and London-Bridge and between Sun-rising and Sun-setting from the Tenth day of September to the Tenth day of March and between the hours of Six of the Clock in the
if they had been born in England and no man shall be received against an Act of Parliament to say the contrary Therefore if the Father an Alien has issue a Son born here and then the Son is naturalized the Son shall inherit If the Father a natural born Subject has issue an Alien who is naturalized the Father dyes the Son shall inherit III. Naturalization does remove all that disability and incapacity which is in Aliens in respect of themselves and so puts them entyrely in the condition as if they had been born in England The Relative terms as if born in England is generally used to supply the personal defect of the parties naturalized arising from their birth out of England and therefore shall never be carryed to a collateral purpose nor cures a disease of another nature as half blood illegitimation and the like but all diseases whether in the parties themselves or resulting from the Ancestor it cures Acts of Parliament of this nature may be so pen'd as to cure defects in the Father or Ancestor or in the parties themselves If restitution in blood be granted to the Son by Act of Parliament this cures that disability that resulted from the Fathers Attainder and that not only to the Son but also to the collateral Heirs of the Father the true reason of this is because the corruption of the blood by the Attainder is only of the blood of the Father for the Sons blood or coliateral Heir was not at all corrupted for the scope of the Act is taking notice of the Fathers Attainder does intentionally provide against and remove it for otherwise the same had been useless But in naturalization without express words it takes no notice of the defects in the Father or other Ancestor noâ—… amoves them And therefore such Acts of Parliament as take no other notice but of the Person naturalized's Forreign birth the same cures not any disability of transmission hereditary between the Father Brother or any other Ancestor resulting from the disability of them without actually naming of them As for instance the Father an Alien the Son naturalized by Act of Parliament the Father or any other Ancestor an Alien purchases Lands and dyes the Son shall not take by reason of the disability in the Father but there may be words inserted in the Act that may take away the impediment IV. Those that are born in Ireland and those that are born in Scotland are all alike for their birth are within the Kings Dominions and they are born under the like subjection and obedience to the King and have the like band of allegeance ad fidem Regis yet if a Spaniard comes into Ireland and by the Parliament is there naturalized though perhaps this may qualifie and cloath him with the title of a natural born Subject of Ireland yet it has been conceived that it will not make him a natural born Subject of England For the union of Ireland to that of England is different from that of Scotland for the first is dependant as a Kingdom conquered the latter independant Though Henry the II. after his Conquest of that Nation did remit over from England the Ancient modus tenendi Parliamentum enabling them to hold Parliaments which after was confirmed by King John yet that was by no other sorce then bare Letters Patents Now when a Nation is once conquered there remains no Law but that of the Conqueror and though he may incorporate such conquered Nations with his own and grant unto them their ancient Parliamentary wayes of making of Laws yet the Conqueror can no wayes grant unto them a power by vertue of such Grant or Confirmation as to impose upon his own Countrey for he himself before such Conquest could not make a natural born Subject without Act of Parliament and most certainly his Conquest adds nothing to his power though it does increase his Dominion V. Again Kingdoms that are absolute under one Prince ad fidem Regis there the Acts of each other are reciprocate and one naturalized by the Parliament of Scotland is as naturalized in England because Scotland is a Kingdom absolute but Ireland is a Kingdom dependant and subordinate to the Parliament of England for the Parliament in England can make an Act to bind Ireland but not e converso Now to be a Native of Ireland is the same as to be born in Ireland but that is by the Laws of Ireland but to be born in Ireland and to be the same as to be born in England must be by the Laws of England But there is no Law that hath enabled them with such a power as to naturalize further then their own Laws extend but the Law of Ireland does not extend in England therefore Naturalization in Ireland operates only in Ireland because of the failer of power VI. Again Kingdoms that are Conquered the Empire of the same may be acquired by the Conqueror only as it is in a King or other Governour and then the Conqueror only succeeds into his right and no further or also as 't is in the People in which case the Conqueror hath Empire so as that he may dispose of it or alienate it as the People themselves might for 't is one thing to enquire of the thing another of the manner of holding of it the which are applicable not only to corporal things but incorporal also For as a Field is a thing possessed so is a passage an Act a way but these things some hold by a full right of property others by a right of usufructuary others by a temporary right Again by the will of the Conqueror the Kingdom or Republique that is so conquered may cease to be a Kingdom or Common-wealth either so that it may be an accession of another Kingdom or Common-wealth as the Roman Provinces or that it may no wayes add here to any Kingdom or Common-wealth as if a King waging War at his own charge so conquer and subject a People to himself that he will have them governed not for the profit of the People chiefly but of the Governour which is a property of that we call Heril Empire not of Civil for Government is either for the profit of the Governour or for the utility of the Governed this hath place among Free-men that among Masters and and Servants The People then that are kept under such command will be alwayes for the future not a Common-wealth but a great Family hence it is that we may plainly understand what kind of Empire is that which is mixt of Civil and Heril that is where Servitude is mixt and mingled with some personal Liberty For if the People are deprived of Armes commanded to have no Iron for Agriculture to change their language and course of life and abstain from the use of many of their Customes to be confined to their own Houses Castles or Plantations not wander abroad to be governed by such Laws
The Wares Merchandizes Debts or Duties that Merchants have as joint Traders or Partners shall not go to the Survivor but shall go to the Executor of him that is deceased If two joynt Merchants occupy their Stock Goods and Merchandize in Common to their common profit one of them naming of himself a Merchant shall have an account against the other naming him a Merchant and shall charge him as Receptor denariorum ipsius B. ex quacunque causa contractu ad communem utilitatem ipsorum A. B. provenient sicut per legem Mercatoriam rationabiliter monstrare poterit XV. And as the Law establishes security for their Estates so it gives them other immunities in their Commerce for if one Merchant draws a Bill of Exchange upon another be it in-Land or out-Land if it be by way of Exchange the acceptance of the Bill by the Party shall bind him to that party to whose use the Money in the Bill is to be paid and he may bring his action in his own name per legem Mercatoriam And so it is if a third Person that is a Stranger to the Bill shall accept the same for the honour of the Drawer it shall bind him as effectually as if he upon whom the Bill was drawn had accepted it and this by the Custom of Merchants XVI All other Subjects are restrained to depart the Realm to live out of the Realm and out of the Kings Obedience if the King so thinks fit but Merchants are not for they may depart and the same is no contempt they being excepted out of the Statute of 5 R. 2 cap. 2. And by the Common Law they might pass the Seas without Licence though not to Merchandize XVII It was once conceived that those Laws which were prohibitory against Forraign Goods did not bind a Merchant-Stranger but it was ruled otherwise For in the Leagues that are now established between Nation and Nation the Laws of either Kingdom are excepted and therefore as the English in France or in any other Nation in Amity are subject to the Laws of that Countrey where they reside so must they of France or of any other Country be subject to the Laws of England when resident or here and therefore if a French Man imports any Points Laces Belts Hats and the like they are forfeited XVIII The marking of Goods is of a great consequence as in relation to the settling the property of the Merchandize in the right Owner and in Courts of Justice both the Civil Law and the Common Law hath a great respect to the same therefore the use has been that every particular Merchant hath his particular mark appropriated to him by which means if the Person is of any value considerable as in relation to Commerce his mark is presently known Every Merchant is to set down his mark upon his Books of Account wherewith his Commodities are marked so Companies and Societies have their particular mark No Merchant ought to use another mark without leave first had of the Party whose mark the same is for as Flags are the Ensigns that give consusance of the Nation whose Ships they are so marks are to ascertain the Owners of their property without confusion or damage And though to set the mark of another Man alters not the property yet it may work such a detriment as may be very mischievous and therefore by the Common Law of England if J. S. shall maliciously set the mark of J. D. upon his Goods to the intent J. D. shall or may be brought into any trouble or put to any dammage or charge an action of the case will against J. S. CHAP. VII Of Factors I. Factors their qualifications generally considered as in refference to their employment II. Of Commissions and the words in the same that quallifies them in their employment III. Of Commissions to Factors that limit their actions IV. Of a Factor that deals for several Merchants of the obligations that oblige and not oblige each other V. Of their power considered as in refference to the dispensing with the Debtors of their Principals VI. Where the false entry or unfaithfulness of the Factor subjects him to answer dammage to his Principal and of the like committed by the Principal where to answer to the Factor VII Of Goods remitted to Factors and lost in their possession who bears the misfortune VIII Bills of Exchange drawn on the Factor by the Principalâ—… and accepted but before day of payment the Principal becomes Bankrupt whether the same must be payed IX Of Freighting of Ships by a Factor where he is obliged to see the same discharged X. Of the general rules to be used touching the construction of their actions I. A Factor is a Servant created by a Merchants Letters and taketh a kind of provision called Factorage such Persons are bound to answer the loss which happens by over-passing or exceeding their Commission but a simple Servant or an Apprentice can only incur his Masters displeasure The Spaniard hath a Proverb Quien passa Commission pier de Provision He that exceeds his Commission shall loose his Factorage But time and experience hath taught them to know better things for now it is Subolca la paga His Purse must pay for it The gain of Factorage is certain however the success of the Voyage proves and it is the prudence of Merchants to chuse honest and industruous Persons for otherwise the Factor may grow rich and the Merchant poor the first being sure of his reward the latter uncertain of his gain II. In Commissions they now generally incert these words Dispose do and deal therein as if it were your own by which the actions of the Factor are to be excused though it turns to his Principals loss because it shall be presumed he did it for the best and according to his discretion III. But bare Commission to a Factor to sell and dispose will not enable him to trust or give further day of payment for in the due execution of his authority he ought on a Sale to receive quid pro quo and as he delivers one receive the other for otherwise by that means as they may trust six Moneths they may trust sixteen years Nor by the vertue of that clause of Doing as if it were their own may they trust out to an unreasonable time as ten or twenty years instead of one two three Moneths which is the Customary time for the like Commodities And so it was adjudged where one had remitted Jewels to his Factor in Barbary who disposed of the same to Mulleshack the Emperor for a Sum certain to be paid at a time which being elapsed the Factor not obtaining it was forced to make the same good to his Principal IV. Again one and the same Factor may act for several Merchants who must run the joynt risque of his actions though they are meer Strangers to one another as if five Merchants shall remit to
Dominion universal 1 1. 1 Where acquired lawfully by Warr 1. 1. 7 Division of Estates first among Families 1. 1. 3 Dominion personal where the same may be 1. 6. 5 Dominion of things began from natural possession 1. 13. 10 Not founded in grace 2. 11. 3 Dower The Wife of one in Exile may bring a Writ of Dower 3. 1. 10 An Alien Wife cannot have the same unless a Queen 3. 2. 12 A Jew born in England takes a Jew born in England she cannot have Dower ibid. Ecclesiastical persons BY the Canon Law exempt from Reprizals 1 2. 16 So likewise from the Sword in time of Warr 1. 14. 18 Election Given to the Merchant to charge either Master or Pylot for Damage done 2. 9. 4 The like to charge the Master or Owners ibid. Embargo Embargo when by the Lawes of England 1. 1. 11 Goods of a Friend in the hands of an Enemy not subject to an Embargo 1. 1. 12 Goods laid aboard are Embargo'd yet Freight shall be paid 2. 1. 12 Enemy Goods taken from them become the Captors 1. 13. 10 Enemies Goods and Merchandize taken by them and afterwards retaken alters the property 1. 1. 7 Enemies what is lawful to do against them 1. 1. 9 If taken in the Realm are to be tryed by Martial Law 3. 4. 6 To relieve him by a Souldier in pay punished with death 1. 13. 8 England None could Trade thither without leave 1. 5. 7 English no Nation nâ—…re tender of their honour 1. 5. 9 Exchange Exchanges the various sorts 2. 10. 4 Bills on the same are to be governed by Custome 2. 10. 14 What amounts to an acceptance 2. 10. 15 Once accepted not to be revoked 2. 10. 28 Accepted for the honour of the drawer ibid. Executor Executor of a Forraigner shall not have the benefit of being discharged of Prisage though he is a Citizen of London 2. 8. 5 Exile The various wayes of banishing a Subject 3. 1. 9 What a man forfeits by the same 3. 1. 10 Exile of the Father binders not the Freedom of the Son ibid. Factor FActor Enemy the Goods of a Friend in his possession not subject to an Embarge 1. 1. 12 Factor contracts for another Port and before departure the Ship takes fire the Assurors are discharged 2. 7. 13 Factor super Cargo cannot alter the Voyage agreed on without special Commission 2. 4. 5 Factor super Cargo ought to be consulted with before there be a casting over-board 2. 6. 1 He ought to give notice if there be any Plate or Jewels in Boxes or Trunks 2. 6. 15 Factor Enemy the Goods in his possession not subject to Reprize 1. 1. 12 Cannot give time 3. 7. 3 Principal where obliged by his act and where not 3. 7. 4 Feés To the Officers of the Custome-house how governed 2. 13. 12 Felony The wilful casting away of a Ship by a Master that had taken up Moneys on Bottomery 2. 11. 11 Stealing of Cables or any of the Ships Furniture belonging to the King punished as Felons 1. 14. 11 Stealing of men at Sea Felony 1. 4. 15 Fishermen Fishermen ought not to Fish in the Night with Lanthorns or Lights 2. 5. 2 Flagg But a consecutive acknowledgment of the British Seas 1. 5. 7 Demanded peremptorily by the English and punished as Rebels if refused 1. 5. 9 How the same differs from that claymed by the French 1. 5. 11 The Right how far it is to be paid 1. 15. 3 How punishable for the neglect 1. 15. 5 Force Used by persons in opposition to Justice may occasion Reprisal 1. 2. 11 Forfeiture The Forfeiture of Ships drawes not the loss of the Boat 2. 1. 8 Forraigners Have a Right to compell where Justice is denyed in the ordinary way which Subjects have not 1. 1. 9 Forraigners Robb'd at Sea have a right to prosecute within the Stat of 28 H. 8. 1. 4. 7 So for the like offence to be punished by the Statute of 25 F. 3. 1. 4. 8 Forraigners in enmity together with some English commit Pyracy how punishable 1. 4. 9 Forraigners committing Pyracy on the British Seas punishable by the Crown of England and not elsewhere 1. 4. 10 Vide Aliens Fraud Fraud and Covinous Assurance is void 2. 7. 5. 15 Freéman How many wayes he may be made of City or Burrough 3. 1. 11 What makes a compleat Freeman ibid. Freight Freight where the same may be refused by the Master and where not 2. 4. 15 Freight is the Mother of Wages so likewise the Father of Damage 2. 1. 9 It is governed by the Contract 2. 4. 2 It shall be paid though the Ship proceeds not her Voyage if once she laded 2. 4. 4 Freight becomes due though there be a failer of compleating the Voyage according to the time agreed on 2. 4. 5 Freight not due if the Vessel is Robb'd 2. 4. 6 Out and in not due till the whole Voyage be compleated 2. 4. 8 If any fault arises from the Freighter he shall answer ibid. Fugitives Fugitives the houses of Ambassadors are Sanctuaries for them 1. 10. 12 Whether they may be delivered up flying into another Countrey 1. 11. 3 Persons that have wronged Kings of their Revenue have been delivered up when they become Fugitives 1. 11. 7 Are received by the Laws of Warr 1. 14. 20 Generals GOod Generals one of the greatest of happinesses that can come to a Prince 1. 13. 1 Such are followed to death by the Army ibid. Not to be slighted and of the Cruelty shewed to Belisarius 1. 13. 3 When taken in Battail they are not the Captors but that Princes or States by whose Subject they were taken 3. 1. 5 Goods When the property of the same is altered by the Lawes of Arms 1. 1. 7 Of a Friend in the custody of an Enemy not subject to Reprize 1. 1. 12 Goods counterband where the same may be subject to reprize 1. 1. 15 Of an Enemy may as well be spoyl'd as taken 1. 3. 1 What may be made Prize and what not 1. 3. 11 12 Goods secretly brought a shipboard if lost oblige not the Master 2. 1. 17 But if secretly brought in by the Master after a Ship is Freighted if damage happens to the rest he shall answer nor can those goods if cast over-board be subject to an Averidge 2. 4. 9 Goods on a mans Body not subject to an Averidge 2. 6. 4 Goods how estimated for the setling an Averidge 2. 6. 14 Exported what allowances to be made 2. 3. 2 5 Habitation IN time of Fire or Warr may be pulled down 1. 1. 4 Habitation or Domicil and not Originatirn or Nativity that subject men to Reprizal 1. 2. 14 Havens The same ought to be kept in peace 1. 1. 10 Hostages He that gives them is freed from his faith 1. 8. 6 Are not to be slain generally may be put to death if the Contract be broke 1. 14. 18 Impiety IMpiety punished a Shipboard 1. 13. 4 Incertainty Of the Port
as if a blanck is left in the policy if a loss happens the parties are without remedy 2. 7. 14 Indictment For Pyracy upon the Statute must mention the same to be done at Sea 1. 4. 23 Indiction If necessary 1. 1. 11 Infidel Cannot be a witness yet may bring an Action 3. 4. 7 Innocent Whether such a person may be deserted to prevent a Warr 1. 11. 5 How obliged to render up himself 1. 11. 7 Interpellation Interpellation having gone and no satisfaction returned whether Warr may be begun 1. 1. 14 Joynt-Traders Vide Societieg Joynt-Traders the acceptance of a Bill by one will bind the other 2. 10. 18 But accepted by one Member of a Company it cannot oblige another Justice Stopt and Judges not able to protect men from Violence denotes Warr 1. 1. 6 Denyed or delayed in the ordinary course to a Forraigner gives right of Reprizal 1. 2. 9 11 In matters doubtful the presumption is alwayes for the Judge 1. 2. 10 King KIng's Standard appearing in the Field denotes a Warr 1. 1. 6 King not entitled to the Copyhold Land of an Alien 3. 2. 11 Law OF Nature what thing may be acquired in Warr by the same and also by the Lawes of Nations 1. 1. 6 Law Civil cannot command any thing that the Lawes of Nations forbids 1. 6. 1 Lawes of Nations broken by an Ambassadour subjects him to punishment 1. 10. 5 Judgments how executed by the Lawes of Nations 3. 8. 8 Larceny Where the same may be in a Master 1. 4. 16 Leagues Leagues made with Princes though they have lost their Kingdome remain 1. 7. 18 Leagues remain though the Republique is changed into a Monarchy 1. 7. 17 Leagues the Oath binds the person and the Promise the Successor ibid. Leagues confirmed in England by Parliament and are often Offensive 1 7. 7 The cause ordinary for which they are made 1. 7. 8 Defensive Leagues Leagues how Ratified 1. 7. 12 How broken and the ordinary cause 1. 7. 13 14 How to be interpreted 1. 8. 6 Loadmanage What. 2. 7. 7 London Discharged of Prisage 2 8. 3 The Extent of the Port 3. 14. 9 Keyes and Places lawful for landing in the same 2. 14. 10 Charter confirmed 3. 1. 10 Lotts Vide Mutiny Manumission WHen first introduced 3. 1. 8 The various wayes of making Free ibid Marriners and Fishermen Pressed for the Service are not to be imployed but as Marriners 1. 6. 4 Their Wages dye with the Ship 2. 3. 7 Marriners their Suits favoured by the Courts at Common Law 2. 3. 8 May be corrected by their Master or Captain 2. 3. 12 Marriner cannot contract for Freight 2. 4. 14 Marriners what share they have in the Goods of a Passenger deceasing in the Voyage 2. 4. 11 Marriners their faults and punishments 1. 13. 4 5 Marriners a Shipboard their various Offices and Imployes 2. 3. 1 Their faults how punished 2. 3. 2 The mutual Ayd they must afford one another 2. 3. 3 Not to be arrested a Shipboard nor are they to depart thence when once entertained ibid. Obliged to make satisfaction 2. 3. 4 Masters of Ships Where his knowledge of the Goods may involve the whole Lading 1. 1. 12 Master of a Ship hang'd up for attempting to relieve a place block'd up 1. 1. 14 Master of a Ship becomes a Pledge in the hands of Pyrats for the redemption of the Ship the same is made lyable for his redemption 1. 4. 5 Master brings Goods to a Port and then runs away with them not Pyracy 1. 4. 16 Master responsible for offences to his Owners 2. 1. 8 Where he may release the Freight and where not 2. 4. 15 Where his act obliges the Owners and where not 2. 1. 10 Master hath no Property in the Vessel by being constituted Master 2. 2. 1 Master becomes lyable immediately by the lading the Ship aboard 2. 2. 2 So likewise if he receives them if lost he must answer 2. 2. 3 His Duty 2. 2. 4 He may borrow Money on the Ship 2. 2. 14 2. 11. 10 The Master is obliged to the care and preservation of his Marriners 2. 3. 2 He is obliged for the Barratry of his Marriners 2. 3. 13 Master not lyable unless the Lading is brought aboard by his and his Pursers consent 2. 3. 17 Nor can the same be attached in his hands 2. 3. 18 If he translades the Lading and the Ship miscarry he shall answer but if both è cont ' 2. 4. 4 Master to answer for insufficient Ropes in hoysting out the Goods 2. 9. 5 Masters obliged by the act of their Servants 2. 10. 27 Members What is understood by them 2. 14. 7 Merchants Honour justly due to Merchants 3. 9. 1 The more Honourable the persons are the more reputation they bring to their Country 3. 6. 2 All Nations professing the same may freely Traffique for England 2. 12. 1 Merchants Strangers their Immunities granted 2. 12. 9 An Alien Infant cannot be a Merchant Trader in England nor can be enter Goods in his own name 3. 2. 11 No survivor amongst Joynt Merchants 3. 6. 14 May depart without leave 3. 6. 15 Money Is the civil measure of things 2. 11. 5 Its necessity in Society 2. 11. 6 7 Advanced on a contingency is no Usury 2. 11. 13 14 Mutiny To be punished with death how the same is to be governed in such extremity 1. 14. 17 Not to Mutiny if the Victuals are naught 1. 14. 23 They may be Executed immediately 1. 14. 26 Naturalization CAnnot be in England without Act of Parliament 3. 3. 2 It removes all the disability or incapacity in the Ancestor 3. 3. 3 Naturalized in Ireland operates not in England but in Scotland otherwise 3. 3. 4 Necessity The Master may translade without Commission 2. 4. 4 Necessity is excepted out of the Law of Dominion 1. 1. 4 Ships in Necessity may take things necessary from another by force of Arms 1. 4. 18 The right of Nature in such extremity where let in 3. 5. 5 In such Exigencies how written Lawes are to be interpreted 3. 5. 7 Neutrality Neuters how they ought to carry themselves in Warr 1. 1. 14 Neuters their Ships in the Ports of the warring Parties whether being forced to fight is a breach of the League 1. 1. 15 Neutrality what and how made 1. 9. 6 The advantage of the same 1. 9. 7 Neuter neither purchases Friends nor frees himself from Enemies 1. 9. 7 It works no wrong ibid. If prest for whom must he declare 1. 9. 8 Oath HE that gives it to Pyrat is bound to the performance 1. 2. 6 Oath may be administred by the Judge Advocate 1. 14. 27 Office King not entitled to the Lands of an Alien till Office found but in Treason è cont ' 3. 2. 10 Officer Quarrelling with how punished if struck the party offending suffers death 1. 14. 22 Owners Owners may Freight out their Ship against the consent of each other 2. 1. 2 Cannot be
in the Bills is that which is the Averidge or Contribution for losses â—…ghton Arâ—…c Enquiry 27 28. Per Leg. Oleron Cap. 15. Per Leg. Oleron Cap. 14. Exod. 30. 31. Moses Kotsenses Printed at Venice 1557. de Siclis fo 12â—… Col. 2. Alex. Gendier l. 5. cap. 30. 〈◊〉 Reg. Orig. 194. Statut. 5 R. 2. cap. 2. 3 H. 7. 6. 〈◊〉 E. 〈◊〉 Acton Bâ—…nel This Usury was first introduced by the Jewes here in England Vide Co. 2. Inst. fo 506. 3 4 H. 7. * And therefore some are of opinion that there can be no certain rate set on the Par in Exchange to answer justly the value of the Coyns of Forraign Parts by reason of the diversity of them and of their intrinsical values Vide Sir Robert Cottens Posthuma fo 306. Cro. 2. so 7. Martin versus Bour. Pasch. 1 Jac. in B. R. Reg. Orig. fo 194. Statut. 5 〈◊〉 2. Cap. 2. Consuetudo quandocunque pro lege Servatur saith Bracton in partibus ubi fuerit more utentium approbata longaevi enim temporis usus consuetudinis non est vilis authoritas lib. 1. Cap. 3. Words are made to signifie things By the word Deliverer is meant he that payes the Money beyond Sea By the word Drawer he that writes or drawes the Bill of Exchange the person upon whom is called the Acceptor Nor is any such thing as a 3. dayes respite to be allowed for acceptance Per Jasonem in lege allegantur ff de conditionibus indebiti Mich. 19 Jao C. B. Vanheath versus Turner Winch. 24 25. Trin. 20 Car. 2 in B. R. The receiving of part of the Moneys upon the Bill does no wayes weaken the Bill Per leg publia in si ff depositi per Bart. ibidem per Romanum singulari 474. Words are made to signifie things Therefore by the word Deliverer is meant he that payes the Money he that drawes the Bill is called the Taker or Drawer And the party upon whom is called the Accepter Styles Pasch. 1654. in B. R. fo 370. * That is for not payment the Bill being once accepted Styles Reports in B. R. 370. Monck versus Clayton Mil ' and Morris Mich. 22 Car. 2. in B. R. And though the same seems an act of Wisdome for Merchants and others so to take yet it oftentimes proves the destruction of many a Family The Father puts out the Son perhaps with no less then 2 or 300 l and is himself become bound for his Truth and just Accounting c. The Servant is immediately trusted with his Cash and then he too young experienc'd in the World either neglects keeping a iust account or keeping that subjects his Masters Cash to be spent by himself and those who make it their sole Trade to betray such Youths The Master finding the consumption calls his Servant to account who conscious of the act forsakes his Service dares not see his Relations and then as a general consequence falls into a Company the which nothing but Providence can preserve from taking their wicked courses The Father is called to answer what ever the Master does say the Servant hath spent or imbezled none being able to contradict him he must with a heart full of grief submit to and pay besides the loss of the Moneys advanced upon the Servant's first putting forth Which sometimes proves a great affliction in a Family On the other side if Servants were not to be entrusted the Mystery could not be learnt nor the business dispatched and therefore faith must be given but then it were Justice and Honesty that as a Father puts perhaps the Child of his love to one in whom he reposes a faith and trust that the Master should be then as a Parent so they should prevent all occasions that might subject them to Temptations and not be over-hasty in Trusting them with the Cash which is the very Bait our London Gamesters catch such Gudgeons Rastal 339. Bald. in râ—… br de constitut pecunia in ult Col. leg quidem ff eodem Col. penult Bald. in Leg. pro debito C. de bon actor Judi possiden per Bartol in Leg. singularia Col. 7. ff probatur Pinchard versus Fowk Styles 416. Pasch. 1654. in B. R. Styles 370. London Holland There are two Protests 1. For non-acceptance which is called intimation 2. for non-payment * Which is look'd upon to be the third day There is no danger be the party never so responsible to protest immediately if the money be not paid when it is due i. e. the third day but there may especially beyond Seas be great hazard for want of protesting In leg pno debito in fine C. de bonis author Judi possiden 14 dayes allowed from the death before Administration can be committed unless there be a Will But an Intimation ought to go and that the Acceptor is willing to pay according to Order * L. 1. Cap. 1. §. 1 2 3. * Aristotle Polit. †Campanella Monarch Hisâ—… Money is like the middle term of a Syllogisine of which it is said Quo conveniunt in tertio conveniunt inter se. †Poland and generally in most of those Northern Countries Vide Chap. of Exchange §. 1. Leg. 3. D. de Naut faen l. 1. eod l. 62. D. de rei Vindic. Locinius lib. 2. Cap. 4. §. 2. †Leg. Faen Naut leg periculi â—…od Vide Passim ad leg de Faen Naut DD. leg Naval Rhod. Vide leg 3. C. de Faen Naut Leg. Naval Art 17. Art 18. * Testatur Vinius in Peckium ad I. L. Nautic quem vide pag. 95. Leg. Oleron Cap. 1. Leg. 4. D. de Naut faen l. 1. C. eod leg qui Romae §. Callimachus de verb. obl ibi Gothfr alios Scarborrough and Lyrius Pasch. 3 Car. in B. R. Rott 213. Noy 95. 16 Car. cap. 6. A good Law and ought to be encouraged It 's pity it was not continued * Joh. Locinij l. 2. Cap. 4. §. 1. Latches Rep. fo 252. Scarborongh ' s case †Teste Camdeno in Britannia p. m. 149. Locinius lib. 2. Cap. 4. §. 1. Toto lit Dig. Cod. de Naut faen Doctorum sic hardus in tit Cod. de Naut faen n. 4. Trajectitia pecunia propter periculum creditoris quamdiu navigat navis infinit as usur as capere potest upon which Law it was observed by Anianus Quia Maris periculo committitur quant as convenerit usur as hanc pecuniam dare Creditor potest * Trin. 6 Jac. in B. R. 2. Cro. 258. Sharpley versus Harroll Verum enim vero hie propriè non versari damnatum foenus sed compensationem aliquam periculi quod creditor contra naturam mutui in se recepit patrim Johannes Locinius liâ—… 2. Cap. 4. §. 1. 2. * C. B. Hill 22 23 Car. 2. Vide Carolus Molinaeus de usur q. 3. n. 92. ait hoc approbant omnes Theologi ut Creditor possit aliquid accipere ultra fortem pro
the dampness of the Ship and that the two last men cannot receive their proportion There are in this case these things to be considered 1. Whether the Master is bound to deliver the exact quantity 2. Whether those that have received this loss can charge the Assurors 3. Whether the Assurors can bring in the first men for a contribution they having their Salt delivered to them compleatly Certainly the Master is not bound to deliver the exact quantity nor is he obliged to redeliver thev ery specifical Salt but onely as men are to repay Money or Corn by the distinction in a Bagg or Sack and out of them but if the fault was in not pumping keeping dry his Deck and the like there è contra though perhaps there may be special agreement Besides this is a peril of the Sea against which the Master could not prevent and of necessity he must deliver to one first before another As to the second It is no question but that the Assurors shall answer But whether they shall bring in the first men for contribution may be some doubt It has been conceived by some that they ought not for they delivered their Salt to the Master tanquam in Creditum and was not to expect the redelivery of the same specifical Salt Besides the Master must of necessity deliver to one man before another But by others it has been conceived they ought to contribute per ratione for as Goods of necessity some must be stowed in the Hold and that such Goods seldome fail without a perill of the Sea so the rest must of necessity contribute to that misfortune and so make no distinction The Bills of Lading are very useful to settle the difference between the Assuror and assured of which there are 3. parts one sent over Sea the other left with the Master and the last remaining with the Lader XVI The Office of Assurance was Erected by the Statute of 43 Eliz. Cap. 12. which reciting That whereas differences growing upon Pollicyes of Assurances had been ordered by discreet Merchants approved by the Lord Mayor who did speedily decide those causes untill that of late years divers persons did withdraw themselves from that Arbitrary course and have sought to draw the parties assured to seek their Moneys of every several Assurer by Suits Commenced in her Majesties Court to their great Charges and delay whereupon it was Enacted That the Chancellor or Keeper for the time being should issue forth a standing Commission to be renewed yearly or as often as to him shall seem meet for the hearing and determining of all such causes arising on Pollicies of Assurance as shall be entred in the Office of Assurance in London The Judges or Commissioners appointed are the Judge of the Court of Admiralty the Recorder of London two Doctors of the Civil Law two Common Lawyers 8. grave and discreet Merchants or to any 5. of them and that they or the greatest part of the Commissioners have power to Hear Examine Order and Decree all such causes in a brief and summary way without formality of pleading They have power to summon the parties examine witnesâ—…s upon Oath commit to prison upon refusal of obedience to their Decrees they are to meet once a week at the Assurance Office or some other convenient publique place and no Fees at all are to be exacted by any person whatsoever There lyes an Appeal from their Sentence to the Lord Chancellor or Lord Keeper but the party must deposite the moneys decreed and then though the party be imprisoned he may be discharged and then it lyes in the Lord Chancellors or Keepers Breast to affirm or reverse and to award the party assured double costs No Commissioner being party Assuror can act by vertue of this Commission nor untill he hath taken his Corporal Oath before the Major and Court of Aldermen To proceed uprightly and indifferently between party and party XVII This was a good Act had it been as carefully penn'd as was intended for there were many things in which this Act did not extend to First Any man may at this day make a private Pollicy notwithstanding this Act which is as good and effectual in Law to all intents and purposes as one made and entred in the said Office and that such a Pollicy might and may be now sued at the Common Law Secondly The number of Commissioners being so great that there could be no Court without 5. at the least and without a Court they neither could summon parties or examine witnesses and that was very difficult to get Thirdly If the parties or witnesses refused to appear they had no power to punish the party for the delay with costs or otherwise which was very mischievous Fourthly No Commissioner could sit before he was sworn Commissions and the Commissioners being often renewed it was a trouble to be attending a Court of Aldermen which was difficult sometimes of the year to get Fifthly Though they had power to commit the party who refused to obey their Decree yet they had no power to make any Order against the Ship Which matters being taken into consideration it was Enacted That 3. Commissioners whereof a Doctor of the Civil Law and a Barrister of 5. years standing to be one should make a Court and to act as any 5. before might have done They have likewise power now given them to summon parties and witnesses and upon contempt or delay in the witnesses upon the first summons and tender of reasonable charges and in the parties upon the second summons to imprison offendors or give costs Every Commissioner is now to take his Oath before the Lord Major to proceed uprightly in the execution of the said Commission and any of them may administer an Oath so as the adverse party may have notice to the end such person may be fairly examined Commissions may issue out of the Court of Admiralty for examining of witnesses beyond Seas or in remote places by directions of the Commissioners and Decrees may be made against body and goods and against Executors and Administrators and Execution accordingly and assess Costs of Suit as to them shall seem just But Execution cannot be against Body and Goods for the same debt but the party must make his Election as at the Common Law XVIII But these Statutes took not away that Cognizance which the Courts at Westminster claymed upon such Contracts by the Common Law but onely gave this new erected Court a concurrent Jurisdiction with those at the Common Law for though the loss happened out of the Realm yet they had Jurisdiction of the Cause And therefore if an Action is brought upon a Pollicy of Assurance though the loss happened at Sea yet the Jury shall enquire for the loss is not the direct ground of the Action but the Assumpsit The Admiralty have likewise put in if not for an absolute Jurisdiction yet at least a concurrent one yet both have