same in haec verba Charles II. by the Grace of God c. which being read they said that the Letters Patents ought not to be brought into Chancery nor the Enrollment thereof obliterated and made null or void because King Charles I. by his Letters Patents under the Great Seal of England in the year 1635 gave Sir William Courten and his Partners a Charter to Trade and settle Factories in the East-Indies China and Iapan for Trading Voyages and renewed the same to William Courten Son and Heir of Sir William and his Partners And that Sir Paul Pyndar had furnish'd Sir William Courten with Thirty five thousand Pounds towards the first enterprize of that Trade And that the said William Courten the Son and his Partners had set forth the two Ships named the Bona Esperanza and Henry Bona Adventura in the Patent for Reprizals mentioned in the year 1641. with Moneys Goods and Merchandizes for supply of the said Factories and Trade whereof seven parts belonged to Courten and the 8th part to his Partners And that William Courten the Son by his Indenture dated 26 April 1642. had transferred and assigned his Interest in the said Ships and Merchandizes to Sir Edward Littleton in the County of Stafford Baronet for Counter-security against several Debts contracted by Sir Wil. Courten and his Son wherein he stood obliged for payment thereof And that Sir Edward Littleton joyntly with Wil Courten the Son had by their Indenture dated Decemb. 19. 1642. transferred and assigned all their Interest in the said Ships Bona Esperanza and Henry Bona Adventura to Sir Paul Pyndar towards his Debt and the surplus to the Creditors of Courten and Littleton And the said Turnor and Carew further say that the Officers of the East-India-Company of the Netherlands in the year 1643. unjustly seized and detained the said two Ships and Lading and converted the same to their own use without any legal Process contrary to the Laws of Nations and the Laws and Statutes of this Realm which was proved by the Testimonies of several Witnesses in due form of Law taken And that the said East-India-Company and the States of the Netherlands had altogether denied to make any satisfaction or reparation to the said Proprietors for the said Spoils and Depredations Afterwards Wil. Courten Esq the Son and Executor of Sir Wil. Courten died Intestate in the year 1655. And William Tooms Executor of Sir Paul Pyndar in the same year also died Intestate And that Letters of Administration of the Goods and Chattels of Sir Paul Pyndar with his Will annexed unadministred was in due form of Law granted to Sir William Powel Baronet and Letters of Administration of the Goods and Chattels of Sir Will. Courten with his Will annexed unadministred was likewise in due form of Law granted to the said George Carew who bona fide paid and satisfied the said Sir Will. Powel Iohn Whitfield Esq and others the sum of 3000 l. sterling in satisfaction of their Debts upon account of Sir Paul Pyndar out of the said Carew's proper Money whereupon Sir Will. Powel by agreement having relinquished the Administration Letters of Administration with Sir Paul Pyndar's Will annexed was in due form of Law granted to the said George Carew Then the said Francis Earl of Shrewsbury Sir Iohn Ayton and others humbly supplicated His Majesty on the behalf of themselves and others interessed to require the States-General to make satisfaction and reparation for the said Spoils and Depredations as in the said Letters Patents at large appears but no restitution or reparation could be obtained Whereupon the said Letters Patents were granted for the recovery of 151612 l. with Costs and Damages under those conditions and limitations therein expressed And the said Turnor and Carew further say that they are entituled and legally vested with an Interest and inviolable right to recover and receive the said Money according to the Laws of Nations and the Laws and Statutes of England and the very express grants and intentions in the Letters Patents contained accordingly notwithstanding any War or Wars or the supposed Treaty at Breda or any other Treaties whatsoever between His Majesty and the States-General or the pretended Supersedeas in the Scire facias mentioned The said Turnor and Carew in fact saying that they or either of them or any claiming under them or either of them have not to this day received taken or seized from the States-General or their Subjects or the East-India-Company of the Netherlands the said sum of 151612 l. or any part thereof or any part of the 800000 Pattacoons mentioned in the 10th Article of the last Treaty at Westminister mentioned in the said Scire-facias or half the Charges and Expences occasioned thereby Wherefore the Letters Patents ought not to be brought into Chancery or the enrollment thereof cancelled or made null and void for that the King was not deceived in His Grant Signed by Richard Wallap Edmond Saunders Iohn Somers Richard Powell Charles Molloy THe Record being made up and brought into Court on the 26th of May 1682. the Attorney-General and the Solicitor both moved for Judgment without any other Argument for it than pretended Reason of State Whereupon the Councel for the Defendants moved that it was against the practice of all Courts in Westminster-hall to argue the same Term the Record was brought in or without a Consillium and a convenient time appointed to study and argue the points in Issue especially in a matter of this weight and consequence being a noble Case to be debated and argued both in point of Law and State and therefore desired a longer day whereupon the Lord Chancellor stood up and said If they were not ready to argue he was ready to give Judgment and that they might argue by the Spirit if they would So his Lordship informing the Court that he had studied the Case himself And for the satisfaction of all man-kind as he said gave these Arguments following which were taken in writing by several Councellors at Bar. The Lord Chancellor's Arguments THe Statute of 31 H. 6. cap. 4. gives Admiral Iurisdiction to the Court of Chancery for speedy relief in cases where strangers are robbed at Sea by the King's Subjects And that after a Peace concluded Letters of Marque for Reason of State are totally extinguished These Letters Patents especially being granted when this Kingdom and the Hollanders were in a state of Enmity they appearing to bear date the 19th of May 1665. in the heat of the War are therefore disannulled by the subsequent Peace A Safe Conduct granted by the King supersedes Letters of Marque as appears 11 H. 4. N. 66. by Iudgment of the Parliament of Paris and the Parliament of Montpellier 2 H. 5. N. 34. A Truce between Nations that have been at Enmity supersedes Letters of Marque as appears 11 H. 6. N. 34. Parl. Rot. A fortiori A Peace after Proclamation thereof and a Supersedea sunder the Great Seal will abolish and
should be satisfied and repayed Yet admitting this Treaty at Breda concluded upon the surprize of Chattam had been duly Inrolled and made a matter of Record in Chancery It was afterwards cancelled disanulled and openly extinguished by Proclamation in the year 1672. And particularly signified to His Majesty by a report upon a reference to five Lords of the Council Table concerning the Debt and Damages mentioned in the Letters Patents aforesaid In these words That the States General having wholly cancelled all past Treaties and Agreements and left your Majesty and your Subjects as free in all iustice and Equity as if they never had been made We therefore humbly presume to report our Opinions to your Majesty that it is now but just and seasonable for your Majesty to insist upon reparation for the Debt and Damages aforesaid This reference was made to the Lord Arlington Lord Ashley Sir Thomas Clifford Sir Iohn Trevor and Sir Iohn Duncomb by Order of Council 22. of March 1671. Now whether a Treaty never Inrolled and afterwards Cancelled by Order of Council and Proclamation should be properly insisted upon in any Judicial Writs is fit for another Court of Judicature or Parliament to resolve It 's granted that after a peace concluded all Temporary Letters of Marque having a bare Authority in themselves are for reasons of State totally Extinguished in regard those Letters of Marque had not an Authority coupled with an Interest A general Letter of Marque or Reprizal as before it 's said is an Act of War A particular or Especial one is a process at Law which is our case Letters of safe conduct usually granted to Foreign Ambassadors and other Persons Upon Emergent occasions are in the nature of a Supersedeas to any Commander that hath a Commission or general Letter of Marque or Privateer so properly called as before nor shall they be interrupted by any Person that hath a speciall Commission grounded upon the Law of Marque and this is consonant to reason of State and the Law of Nations And it is not denyed but that a Truce between Enemies supersedes all Temporary Letters of Marque being Acts of War but not special Letters of Marque or Reprisals which take their rise from Spoyls Depredations committed in times of Peace upon particular men or Companies that becomes a personal injury And the reason is plain for that the Law of Marque and Grants thereupon are consistent with times of Peace and the strictest Amity and Alliance between Sovereign Princes and States Captions thereupon being in the nature of Seizures in a hundred for a Robbery upon a private person before Sun-set which comes to a common Average to prevent a failer of Justice It 's observed that Sovereign Princes holds the Scepter in one hand and the Globe in the other The Sword is carried before them by some Chief Minister of State to shew that Justice is to be duely Administred by Officers that are accomptable for their miscarriages By the Law of England the King can do no wrong He is obliged by Oath to protect His Subjects in their Rights Properties and Estates Therefore His Ministers cannot take them away Yet no man of sence will denie but that the King for a publick good may by due means and ways make void even the Letters Patents in this case of Reprisal that is to say as it 's observed before with Money in the right hand of a Lord Treasurer Dutch Embassador or Lord Chancellor and the Scire-facias in the left hand for the Grantees to shew cause the Money being payed why they should not bring the Letters Patents into Court to be Cancel'd Treaties of State if they be repugnant to the Law of God the Law of Reason or the Laws and Statutes of England ipso Facto they are void in themselves The third Article of the pretended Treaty at Breda concluded in the year 1667. after the Surprize at Chatham says that all Offences Injuries Damages and Losses sustained on either side by the King or the States or their Subjects during this War or at any time before upon any cause or pretence whatsoever should be totally expunged and buried in Oblivion and all Actions at Law concerning the same Now if any forced Interpretation should be put upon this Article so generally Penned that all private differences of meum tuum between particular persons of either Nation should be comprehended in this Article it 's void because it s not in the Power or Prerogative of any Prince to hinder the due course of Law for a particular debt or personal injury Admit that a Hollander were indebted to an English-man before the Treaty at Breda for goods Sold or sent to make Sale of and the Dutch-man should plead specially the Treaty at Breda in Bar to an Action brought for the Money it would not hold good in Law for that it cannot be any ways intended that particular Debts and Actions should fall under the considerations of such Offences Injuries Losses and Damages mentioned in that Article which generally relates to Kings and States As for Mr. Carew his Plea to the Scire Facias and Affidavit annexed speaks sufficiently for his Justification Persisting That no restitution is made for the 151612 l. or any part thereof although Sir James Butler and others are ravishing his Estate from him upon Fore-closures of Equity even for Moneys lent upon account of prosecuting this Cause There was never such a president since the Creation that a particular Interest and Property so Liquidated and Established for satisfaction and reparation under those circumstances according to the Laws and Statutes of this Realm wherein so many Families are concerned as the Creditors of Sir William Courten and his Son Sir Paul Pynder and Sir Edward Littleton should be so slighted and contemned The Lord Chancellor well observed it concerned the publique it 's very true it concerns the publick Honour and Interest the publick Justice and Equity of the Nation that the Debt and Damages should be satisfied and repayed There is no Reason of State that particular persons should Purchase a publick Peace at their own Charge or that a private Interest should be Sacrificed for the publick good without satisfaction out of the Publick Purse The Parliament of Paris or Monpilier cannot give Laws to the Parliament of England that enacted if any man should be spoiled by French or others at Sea in peaceable times they shall have the right and benefit of the Law of Marque or Reprizals to recover their Loss Damages and incident Charges which by consent of Nations being once ascertained by a Judicial Act must have its Extent and Execution the end of the Law Satisfaction And this being agreeable to the Laws of God the Laws of Nature the positive Laws of Nations and the Laws and Statutes of England and the King having by His Letters Patents under the Great Seal of England pursuant thereunto commanded and required all Judges of the Admiralty and Officers there
in his Speech to both Houses of Parliament and expressed in the very body of the Patent in these words For relief of Our said Subjects whom We take Our selves in Honour and Iustice concernd to be satisfied and re-paid So that the King declares Himself equally Great and Just. Therefore neither surprized nor deceived in this Grant of Reprizals that had passed the Test of all the chief Officers of State and Trust in the Kingdom whose Judgments are Arraigned by questioning the validity of the said Grant The reasons are very obvious to all Mankind that the Patent ought to be so worded until the Debt and Damages shall be recovered and received for that there is no other remedy for the Subjects relief but such Grants grounded upon the Law of Marque after Justice denied in the Case of a Spoil This Clause of continuance distinguisheth between general and particular Reprizals the one being an Act of War the other a Process at Law and out of the King's Power to obstruct the restitution of this Debt and Damages to the persons interessed and injured otherwise the remedy would prove a Grievance after such vast Expences in ascertaining the Debt and Damages according to the Rules of Law if the Grant should not be obligatory It is in the Power of the States of Holland or the King to satisfie this Debt and Damages to make good the King 's own words and preserve His Honour and Justice entire which ought to be kept Sacred and Inviolable And if the King cannot pardon the least Trespass when sued for reparation in the ordinary Course of Law à fortiori He cannot pardon a Spoil after a Judicial Grant to recover it according to the Laws and Statutes of the Realm General Letters of Marque in time of War are ambulatory and revokable at Pleasure being usually granted to all persons in all Nations that will ask for the same to weaken the Enemy as they did at Oast-End Dunkirk Flushen and Diep in the times of War between Spain and England France and England and Holland and England and those are called Privatters or Private men of War of whom the Lord High-Admiral hath a tenth part of all Prizes And these are the Letters of Marque the Lord Chancellor so often mentions in his Arguments whereof there are hundreds of Precedents in the Courts of Admiralty in England Holland France and Spain which are Temporary Grants and determinable at Pleasure or certain days prefixt under the Seal of the Admiralty By the sacred prescriptions in Holy Writ restitution is to be made double the value of the property injuriously taken which implies the Charge of Prosecution and if the Trespasser be not able to satisfie he shall be Sold for his Theft or kept for a Ransom Upon this ground the old Writs in the Register and F. N. B were made and our Ancestors were so careful for the preservation of every English-mans Right and Property and the encouragement of Navigation and Commerce That Merchants Strangers resident in England and their Goods were Arrested by those Writs for satisfaction of Injuries done at Sea by the People of that Kingdom or Nation that did the wrong whereof they were Subjects But upon the Petition of the Merchants Staplers and others to the Parliament in the 27th of Edw. 3. c. 17. The force of those Writs were taken away and it was ordained and Enacted by the same Parliament That all Persons Spoyled at Sea shall have the Law of Marque without fraud or deceipt that is of taking the value of the Loss and Damage again Bracton Says Quod nihil aliud potest Rex in terris cum sit Minister Dei Vicarius quam solum quod de jure potest Every Man hath a Right to Justice and every Subject of England having a Fundamental property in his Goods and a Fundamental liberty of his Person It is repugnant to the Laws of God Religion and Property to take away our Goods for reason of State without price or satisfaction he is not a Subject but a Slave that suffers his Substance to be taken from him against his Will Infinite are the Arguments that may be used and deduced from the Law of Reason and Natural Justice in the vindication of this Patent However its neccessary to answer the Lord Chancellour Gradatim to his Arguments aforesaid His Lordship was pleased to say That the Chancery had an Admiral Iurisdiction by the Statute 31. Hen. 6. cap. 4. for the speedy relief of Strangers Robbed at Sea by the Kings Subjects His Lordship would here beg the question and have all Mankind to take it for granted That those who Act under this His Majesties Royal Charter and Authority are Robbers and Theeves Notwithstanding the express words in the Patent That it shall be lawful for them to recover the said Debt and Damages although a Peace for General Reprizals concerning the Dominion of the Sea should be concluded It s true the said Statute of Hen 6. provides a remedy for those that have safe Conduct and are Robbed by the Kings Subjects The Lord Chancellour calling to him any of the Judges of either Bench who upon Bill of Complaint shall cause Restitution to be made of Ships and Goods to the parties grieved This Statute may be still in Force but not practicable since the Odious and Arbitrary power of the Admiralty Court was taken away by the Statute of Hen. 8. in the 28th year of his Reign for Tryal of Piracy by Jurors according to the course of the Common Law However the Statute of Hen. 6. recited by his Lordship comes not to this case upon the Scire Facias But it s enacted and ordained by the Statute made in the 20th year of Hen. 6. cap. 1 And several other Statutes of this Realm That all Letters of safe Conduct Treaties and Leagues of Amity and Alliance shall be Inrolled of Record in Chancery or else not to be of any Force or Effect in the Law And the Treaty at Breda being not Inrolled or made any matter of Record in Chancery whereby the Kings Subjects might have recourse thereunto cannot any ways affect this grant to Turnor and Carew And many proper Officers have lost their Heads in former ages for their miscarriages not inrolling in due time such publick Treaties Leagues and Alliances It s also true as the Lord Chancellour observes the Letters Patents to Turnor and Carew were granted in time of War for an injury done to private Persons in time of peace but provided that no Subsequent peace should affect it without a recovery or satisfaction to be made for the Debt and Damages either by force of the Grant or Composition made with the Persons interessed The Fiat passed in the month of May 1665. But the proceedings that brought it to that conclusion continued de die in diem ever since the Treaty of Alliance made in the year 1662. Wherein it was concluded and agreed That the said Debt and Damages so assertained and Liquidated