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Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
power_n	king_n	law_n	positive_a	3,676	5	11.2679	5	false

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A60565	A brief abstract of the case concerning the letters patents for reprizals (hereunto annexed) against the States-General and their subjects whereupon Capt. Compton Gwyther, William Coates, Joseph Bullivant, John Baxter, Francis Wansell, Francis Martin, John Gibson, and William Jones, prisoners in the Marshalsea, are to be tryed for their lives, according to the common law of England, on the 18th of February instant, upon the Statute of 28 Henry 8. cap. 15 under the pretence of piracy, for taking a Galliot-Hoy (called the Love of Rotterdam) laden with 160 tun of wine, and prunes, on the 3d of December last, bound from Bourdeaux to Dort / faithfully recollected out of all the originals by Thomas Smith Gent. ; with some remarkable observations both upon the matters of fact, and the law in the whole case.	Smith, Thomas, Gent.	1681 (1681)	Wing S4228; ESTC R12870	9,089	8

under the Great Seal of England the highest Security of the Kingdom It is very observable That the Proprietors and Creditors which have waited with so much patience to a miracle do aver That since the King's Restauration they have not by the judicial and durable Grant for Reprizals nor by any other ways and means whatsoever gotten half their Expences and incident Charges concerning the Premises Wherefore they humbly hope in due time to repair and satisfie themselves their Debt Costs and Damages by force of their Letters Patents When the Grant passed to Carew who had the Right and Administration in Law to the Damages an Authority vested in him to compel the payment by force which he could not do before It is not a bare and ambulatory Authorit that passed as in every ordinary Commission but an Interest of 151612 l. coupled or joyned with an authority whereby the King binds himself to see it satisfied paid and the Reasons and Arguments why it should be so and not otherwise are unanswerable 1. It 's granted pro confesso there was a real Debt and Damages contracted by the States 2. There was a provision made in a publick Treaty An. 1662. for a full and intire satisfaction and reparation for it 3. That Carew upon passing the Patent was injoyned by the Lord Chancellor Hyde to release ten thousand Pounds due to him out of the Customs in discharge of Sir John Wostenholm's Debts contracted upon the late King's Accompt which were bona fide paid by Sir Edmund Turnor out of that individual Money his name being used only in trust in the said Patent for Carew and others 4. That several of Courten's Littleton's and Pyndar's Creditors gave up their Bonds and Securities for an assignment of a due proportion of the said Debt so secured by Patent with power to put the same in Execution when they see their own time and opportunity Yet notwithstanding the Ministers of State in this Age are not ashamed to wound the King's Honour and Reputation by their Arbitrary and Extrajudicial Orders of the Council-Table with a pretended Supersedeas and Proclamation as forms and ways of repealing recalling and revoking the said Letters Patents so solemnly obtained under those considerations that cannot be extinguished without satisfaction and reparations by one side or the other It would be a President of the most dangerous consequence in the world to all civil Society and Commerce if it should rest in the King's Power or the States to take away the Subjects right and remedy without a compensation The Law of England is possitive in it that there can be no other ways to repeal or make void the King's Letters Patents than by judicial proceedings either by Inquisition or a scire facias that the parties concerned may have liberty to plead and defend their own Right which they cannot do unto a White-Hall Supersedeas on Proclamation The Lord Coke in his Reports says that an Indictment is not to be concluded contra Regiam proclamationem but contra Leges Statuta c. for the King cannot create an offence by his Proclamation which was not an offence before for that would be to change the Law And in the fourth part of his Institutes cap. 8. p. 88. treating of the Jurisdiction and Office of the Lord High Chancellor of England and the Judgments concerning cancelling of Letters Patents by scire facias says Quod praedictae literae patentes dicti domini Regis revocentur cancellentur evacuentur adnullentur vacue invalidae pro nullo penitus habeantur teneantur ac etiam quod irrotulamentum eorundum cancelleter cassetur adnihiletur c. And all this is to be done judicially by hearing the parties and not by any Order of Council Supersedeas or Proclamation which the King or States may do by Scire facias when the Debt is paid recovered or compounded By the grand Charter of England confirmed by so many Acts of Parliament wherein the King is a party no man shall be disseised or destroyed but by legal tryal nor Iustice denied or delayed but right preserved by the Law of the Land And the King and his great Ministers of State are sworn to observe the same accordingly Admitting a Foreign Sovereign Prince granting Letters Patents for Reprizals to a Corporation of his Subjects against a Sovereign State that had spoiled them of their Ships and Goods to the value of a million of Rix Dollars under the same circumstances that the Grant should continue effectual in the Law until the Debt and Damages should be recovered Afterwards the said Prince and State treat togethere and settle a common Alliance upon a sum of Money given to the said Princ without mentioning the particular Grant to the said Corporation of his Subjects for the Rix-dollars and then becomes insolvent admitting the said Prince or his People are the Debtors And the Corporation unsatisfied puts in Execution against the said State the Letters Patents remaining inrolled in the Supreme Court of Judicature upon Record and takes Ships to the value of the Spoil and Damages mentioned in the Patent The Question is Whether it would not be deemed an act of Inhumanity against the Law of Nature in the State to prosecute any of the persons or their Agents they had formerly spoiled for their Lives as Pirates acting under the said Patent and coming under the Power of the said State Or whether it would not be an abomination and most horrid act in the Prince or his Ministers to prosecute those for Pirates that he himself or his People ought in Conscience Reason and Equity to satisfie No men can be safe in their Lives Liberties or Estates under a Government where there is a failer of Justice that the Subjects cannot be protected according to the Laws of God and their Country Fiat Justitia pereat mundus Actum per T. S. Feb. 12. 1680.

That in the month of April 1680. the persons Interessed in the Debt and Damages so ascertained under the Great Seal of England according to Law agreed and prepared to fit out three small Vessels with Men and Provisions to Reprize what they could take towards their satisfaction and reparation many Orphans and Widows being concerned in the same that want their Bread which is eaten by Strangers Then Orders of the Councel-Table issued out to the Lords of the Admiralty in an Arbitrary way to stop all Men and Ships employed in that Service The Prince of Orange and the States insisting upon their broken and cancelled Treaties importuned the Secretaries of State by their Embassador ignorant of the Laws of England to move His Majesty to Revoke the said Letters Patents by Supersedeas which was sent into Holland under the Great Seal without calling the parties by Scire facias Judicially to plead for themselves or offering to refund any of the Pattacoons resting yet in the States hands at Interest or making any other Compensation for the Debt and Damages aforesaid so secured by Law wherefore to prevent a failer of Justice and not to suffer a President of such dangerous consequence to the Rights and Properties of the Subjects of England the said Captain Compton Gwyther Commander of the Ship called the George Bona Adventura being ready fitted and entred in the Admiralty according to the usual form and custom formerly observed did in the month of June last proceed upon his intended Voyage having a Commission for that purpose The said Captain after many difficulties having met with divers Storms at Sea spent most part of his Provisions and sold several of his Guns and small Arms in Harbour many of his men disserting him at last took the said Galliot Hoy on the 3d. of December 1680. near Dungeness laden with Wine and Prunes from Bardeaux for Dort being first assured that the said Ship and Lading belonged to the Subjects of Holland The said Ship being so taken and the Dutchmen used with all kindness and humanity who took with them on shore what they pleased to carry the Captain intending to send the Bills of Lading with one of his men and one of the Dutch to the Admiralty Court in London in order to a Condemnation keeping two of the Ships Company on board to be Witnesses to all their Actions but meeting with further distress of Weather was forced to sell four Tun of Wine most part whereof being upon the Deck to provide a Pilot more Men and Provisions then coming to Anchor near Cows Castle in the Road the Dutchmen that were set on shore applied themselves to Daniel Gyles Marshal of the Vice-Admiralty in the Isle of Wight promising him 100 l. if he would set out Boats with Souldiers to Re-take the said Ship and Lading from the said Captain and his Men that had boarded and taken her which he did accordingly and having seized upon the said Captain took away his Commission and brought him and the seven men before mentioned Prisoners up to London on foot pinnion'd together as Thieves and Robbers having about ten days after his seizure procured a Warrant or Order of Councel to that purpose and committed them into the Custody of Mr. Lowman Keeper of the Prison of the Marshalsea on the first of January 1680. where William Joynes Marshal of the High Court of Admiralty caused Irons to be put upon them for some time until Mr. Carew desired the contrary saying it was a sad return for all the Services and Sufferings of Sir William Courten and Sir Paul Pyndar that had such vast Estates and Credits so employed for the benefit of their King and Country unto whom the Crown of England stands engaged for 250000 l. sterling The said Daniel Gyles having taken the said Galliot-Hoy with her Lading out of the possession of the said Captain Gwyther and Company by an Arbitrary power without any legal Warrant or Authority and keeping the same by force he was Arrested this Hilary-Term at the Suit of the Proprietors for 2500 l. damages and also at the Suit of the Seamen in the Marshalsea who had their Apparel their Armes and other necessaries taken from them by the Souldiers employed by the said Gyles But the Judges of the Kings-Bench lately questioned in Parliament upon the Motion of Mr. Pollexfin discharged Giles upon Common Bail pre-judging the said Cause with that heat and partiality threatning that the Captors should be Hang'd for acting under the said Letters Patents The seizure made by Captain Gwyther and his Company was not done Felo animo with a Felonious intent having a Commission in the nature of a Withernam which was intended to be brought to Judgment in the Admiralty by a determination of the Law according to his Instructions in the Commission So the selling of four Tun of Wine was not criminal but a breach of Trust at most and the taking the Ship and Wines out of the Captains possession by Gyles was both an Assault and Trespass not answerable the Wines being wasted and spoiled since in Sir Robert Holmes his Custody The Galliot-Hoy whereof Sebastian Jansen was Master did belong to the Heer Sebastian Vice-Admiral of Rotterdam who applies himself to the States of Holland for satisfaction and they refer him to the East-India Company of the Netherlands who call upon Mr. Pergens and Boudaens that are caution to indempnifie them for 85000 Gilders part of the damages for the Bona Esperanza c. and they move the Prince or States to allow part of the Pattacoons unsatisfied so Justice follows them home to their own doors Jurae naturae equam est neminem cum alterius detrimento injuria fieri locupletiorem Some Remarkable Observations both upon the Matters of Fact and the Law on the whole Case IT is very remarkable and apparent by the very Words both in the preamble and the body of the Letters Patents annexed remaining of Record that the King was not surprized or mistaken in his Grant But that by the common Law of England it was within his power and prerogative Royal to do the same of common right to his Subjects under all those circumstances conditions and limitations therein expressed and declared The persons interessed in the Bona Esperanza were prompted in the year 1664. by several Ministers of State to bring in an Abstract of their Loss and Damages with the State of their Case to the Committe of Grievances which was done accordingly The Chairman the next day reporting the same to the House of Commons a Vote passed to supply the King with five and twenty hundred thousand po unds After that other supplies followed to several millions besides all the Dutch Ships taken by the King's Fleet in order to the protection of his Subjects for all which and the large present to the Duke of York for his Conduct at Sea this only Debt of 151612 l. was stated and ascertained for reparation with costs and charges