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
pursuit and those of them flying nor ought such either through cowardize negligence or disaffection forbear the assisting of a known friend in view to their utmost power the breach of which subjects the offenders to the pains of death or at least such punishment as a Court Marshall shall think fit Empires are got by Arms and propagated by victory and by the Laws of War they that have overcome should govern those they have subdued Hence it is that Generalls having compleated a Conquest in a just War and in chase or otherwise have taken the Ships or Goods of the Enemy have absolute power over the Lives Estates Ships and things that they by force of Arms hath acquired by the Laws of Nations But yet in such Conquests where the reeking sword knows no Law that is they are done impune without punishment because co-active Judges do grant them their authority but yet such power may be exorbitant from that rule of right called Virtue and therefore by the Law of War Captives may be slain yet what Law forbids not modesty prohibits to be done Hence it is that Generals do often restrain that power of killing for though such Prisoners of War do fight for the maintenance of an unjust cause and although the War is begun by a solemn manner yet all acts that have their rise from thence are unjust by internal injustice so that they who knowingly do persist in fighting yet ought they not alwaies to be slain according to that of Seneca Cruel are they saies he that have cause of punishment but have no measure For he that in punishing goes further then is meet is the second author of injury and the principal reason why mercy is often shew'd is for that Souldiers of fortune offend not out of any hatred or cruelty but out of duty XVIII Again Generals in the measure of killing look no further commonly then the distruction of those who by force of Arms oppose them and though Ships or Cities are taken by assault the which by the Laws of War subjects every individual to the mercy of the Conqueror yet Children Women Old Men Priests Schollars and Husband-Men are to be spaired the first by the Law of Nature according that of Camillus We have Armes saies he not against that age which even in taking Cities is spaired but againâ—…t armed Men and this is the Law of Arms amongst good Men by which we are to note that by the words good Men as is observed to mean the Law of Nature for strictly by the Law of Armes the slayers of them are without punishment Now that which hath place in Children alwaies that have not attained the use of Reason for the most part prevails with Women that is unless they have committed something peculiarly to be avenged or do usurp Manly Offices as flinging of stones from the Walls pouring down burning pitch and brim-stone and the like be-tuminous stuff firing of Guns and the like for it is a Sex that hath nothing to do with the Sword that are capable of that clemency The like for old Men whom Papinius observes are not to be slain so for Ministers of Sacred things even Barbarous Nations have had them in reverence and preservation as the Philistins enemies of the Jews did to the Colledge of Prophets whom they did no harm and with those Priests are justly equalled in this respect they that have chosen a like kind of life as Monks and Penitents whom therefore as well as Priests the Canons following in naturall equity will have spared to these are deservedly added those that give themselves to the Study of good Learning and Sciences useful to Mankind be it in Universities or other publique Schools or Colledges To these are added Tradesmen so likewise Merchants which is not only to be understood of them that stay for a time in the Enemies Quarters but of perpetual Subjects for their life hath nothing to do with Arms and under that name are also contained other Work-Men and Artificers whose gain loves not War but Peace Again Captives and they that yield are not to be slain for to spare such is a Command of goodness and equity sayeth Seneca nor are Hostages to be destroy'd according to that of Scipio who said He would not shew his displeasure on harmless Hostages but upon those that had revolted and that he would not take revenge of the unarmed but the armed Enemy 't is very true by the Law of Arms if the Contract be broke for which they became Hostage they may be slain that is the slayer is without punishment but yet some conceive the slayer is not without sin for that no such Contract can take away any Man's life that is I suppose an Innocents life but without controversie if those that become Hostage be or were before in the number of grevious delinquents or if afterwards he hath broken his Faith given by him in a great matter the punishment of such may be free from injury XIX Where offences are of that nature as they may seem worthy of death as mutiny and the like c. it will be a point of mercy because of the multitude of them to remit extream right according to that of Seneca The severity of a General shews it self against particulars but pardon is necessary where the whole Army is revolting what takes away anger from a wise Man the multitude of Transgressors Hence it was that casting of Lots was introduced that too many might not be subjected to punishment However all Nations have generally made it a standing Rule in the punishment of Mutineers as neer as possible to hunt out the authors and them make examples of And therefore by the 15 Article if any Man at any time when Service or Action is commanded shall presume to stop or put backwards or discourage the said Service and Action by pretencee of arrears of wages or upon any pretence of wages whatsoever they are to suffer death and indeed the same ought to be without mercy by how much the more they may raise a mutiny at a time when there is nothing expected but Action and the shewing the most obsequious duty that possibly may be the breach of which may occasion the dammage of the whole Fleet and being of such dangerous consequence ought severely to be punished So likewise the uttering of any words of Sedition or Mutiny or the endeavouring to make any mutinous Assemblies upon any pretence whatsoever is made death And the very concealors of any trayterous and mutinous practises designs or words or any words spoken by any to the prejudice of His Majesty or Government or any words practises or designs tending to the hinderance of the Service and shall not reveal them subject them to such pains and punishments as a Court Marshal shall think fit And whereas in no case of the offences committed
as the Conqueror should transmit to them all which are the tokens of a Nation by conquest made subordinate to the Conqueror and are part Heril and part Civil and though they may remain a Kingdom and absolute within themselves as to the making of Laws to the obliging each other yet they can no wayes impose on their Conqueror for though that be true which in Quintilian is alledged on the behalf of the Thebanes that that only is the Conquerors which he holds himself but an Incorporeal right can not be holden and the condition of an Heir and of a Conqueror is different because the right passeth to the former by the descent but only the thing by the last by virtue of the Conquest But certainly that is no objection for he that is master of the Persons is also master of the things and of all right which does belong to the Persons for he that is possessed dotâ—… not possesse for himself nor hath he any thing in his power who hath not himself and so it is if he leaves the right of a Kingdom to a conquered People he may take to himself some things which were the Kingdoms for it is at his pleasure to appoint what measure he will to his own favour from hence it is we may observe what fort of Empire that Kingdom is at this day VII Now Ireland before the same became united to the Crown by the Conquest of Henry the II. the natives were meer Aliens and out of the protection of the Laws of this Realm yet when once they became a conquered People and subject to the Crown of England and united ad fidem Regis there did arise their allegeance but that union neither made them capable of the Laws of England nor of their own till such time as the Conqueror had so declared them now what do they desire in order to revive their Government First they humbly beg of King Henry II. that since he was pleased that they should remain as a distinct Dominion that their ancient Customes or Usages should not continue that he would be pleased to ordain that such Laws as he had in England should be of force and observed in Ireland pursuant to which he grants them power to hold Assemblies by the three Estates of the Realm and that they should be regulated according to the institution and manner of the Parliaments in England should have the benefit of Magna Charta and other the great Laws of England and by such means puts them into a method of Governing themselves according to the known wayes of England and to make such Laws as should bind among themselves and by following the example of those of England their Judgment might be supervized and corrected according to the Justice and Laws of England by Writs of Error Appeal and the like Now here is no continuing or reviving their Ancient Government but the introducing a new one part Civil and part Heril nor indeed had they before any such thing as a Parliament there or general Assembly of the three Estates for when Henry the II. went over there were several Kings or Scepts who had their several and distinct Assemblies but when they submitted this great Assembly of Estates which he constituted was a collection out of all of them for their future well Government so that whatsoever modus of Regiment the Conqueror declared it was no more then for the well Governing of the Place and making such Laws as were necessary and proper amongst themselves But for them to impose by vertue of an Act of Naturalization upon an absolute Kingdom as England without the consent of the three Estates of the same surely was never intended much less effected the case is both great and curious therefore c. VIII By the Laws of France all Persons not born under legeance of that King are accounted Aliens and if they dye the King is entitled to the estate for all shall be seized into his Exchequer or Finances but if they make a Will the prerogative is disappointed Yet that extends only to Chattels personal in which Strangers passing through the same have greater immunities then Aliens there resident for Travailers dying without Will the Heirs or Executors shall have benefit and possession of their Estates IX The like Priviledge the Kings of England formerly claimed in the Goods and Estates of the Jews after their death if the Heir sued not and paid a fine to the King to enjoy them as by this Record appears Irratores super sacrum suum dicunt quod praedictum Messuagium fuit quondam Eliae le Bland qui c. diem claufit extremum quia mos est Judaeismi quod Dominus Reg omnia Cattalla Judaei mortui de jure dare poterit cui voluerit nisi propinquer haeres ejusdem Judaei finem feceret pro eisdem dicunt quod Dominus Rex dictum Messuagium dare poterit cui voluerit sine injuria alicui facienda si ita quod sit haeres dicti Eliae finem non fecerit pro Catallis ejusdem Eliae habendis c. But whether the same is now used may seem doubtful for the goods of Aliens escheat not at this day to the Crown but Administration shall be committed to the next of Kin. X. By the Laws of France Flanders Milan and the French County of Savoy though possessed by several other Princes yet the Natives of the same partake in the immunities with the natural born Subjects of France and if they dye without Will their Heirs claim their Estates the reason given because say they those Countreys were never alienated from them but were alwayes annexed to the Crown of France who acknowledges them to be their Subjects to this day But in England it is otherwise for those that are born in Gascoin Normandy Acquitain and those other Territories which were formerly the possessions of the Crown of England in which if any had been born when subject to the same they would have been natural born Subjects yet now are esteemed Aliens and so was the case vouched by Shard of a Norman who had robbed together with other English divers of his Majesties Subjects in the Narrow Seas being taken and arraigned the Norman was found guilty only of Fellony and the rest of Treason for that Normandy being lost by King John was out of the allegiance of Ed. 3. and the Norman was accounted as an Alien XI In France the Kings may there Denizize so likewise here in England but with this difference the Letters of Denization by those of France remove the totall disability and incapacity of the Alien But in England the Charter of Donasion or Denization is but a temporary partial and imperfect amotion of the disability of an Alien for though it puts the Person Indenizen'd as to some purposes in the condition of a Subject and enables a transmission hereditary to his Children born after the Denization
glut fell advice being given to the Principal of the same who immediately in passion writes to his Factor to take a hammer and knock out the heads but the Factor considering that leave must be given to loosers to speak knew better things and kept the sold them for their full value and when Accounts were to be made instead of bringing to the Account of Wines their heads knockt per order worthily brought per contra sold at their intrinsique value Such faithful Ministers I say justly deserve that of our Saviour Well done c. and be no more called Factor but Merchant CHAP. VIII Of the Laws of Nature and Nations I. Of the variety and contrariety of humane actions and from whence they spring II. Of the difficulties that happen in the obstructing our inquisition in finding that which is lawful III. Humane Laws from whence they flow and wherefore the Laws of Nature are above ours IV. No man naturally more a Judge then another of Natures Laws V. Nature's Laws are instituted for inward goodness and virtue but State Laws for quiet and repose VI. Of punishment required by Kings against those that violate the Laws of Nature or Nations though the same touch not them nor their Subjects and of punishing an equal VII Of punishing an equal where that right fails and the reasons of the same VIII Of Kingdoms equal in Power cannot be commanded but entreated may be to execute the Judgement of another by the Law of Nations IX That such power of executing the Judgments or Decrees of any Forreign Nation extends not to those of life or Honour X. Of executing the Judgments given in a Kingdom absolute in another that is annexed by Conquest and of the difference of that and one by Union XI Where that right fails in Plantations and the reasons of the same I. PLain Reason shews us that Natural and Mathematical causes have more certitude then Civil for Nature is alwayes uniform and alike in its operations Hence fire alwayes burne and never wets a stone in the ayre naturally tends downwards and never stayes in the middle In Mathimatical causes ordinarily the forms are such as have no middle interposed as betwixt even and odd There is no medium parti participationis betwixt a right line and a crooked there is no middle sort of line thus two and two alwayes make four But Civil or Humane actions proceeding from a 〈◊〉 table and various principle the will cannot alwayes be alike or uniform And besides the will within humane actions without are subjected to different circumstances and to infinite encounters by reason of which their excessive number they cannot be foreseen while Men are making Laws Hence we may understand wherefore it is said Omnis definitio in jure est periculosae and that summum Jus at some time may be found summum injuria as to render a Man his Sword when he is actually mad c. And as circumstance hath power to change the matter so in the form of the action it leaves in the middle a latitude sometimes enclining to one extream sometimes to another For Example betwixt that which by precept we are commanded ever to do and that which we are commanded act ever to do is plac'd that which is lawful for us now and then to do or not to do in matters of our own right so far as they seem expedient or not expedient for us Thus Joseph is called a just Man because he thought of divorcing himself from Mary though upon circumstances he would not c. But that which perplexes us all here is that this licitum leans sometimes more to the one hand sometimes more to the other sometimes more to that which is absolutely good sometimes more to that which is absolutly bad from whence grow scruples doubtings whether in such twilight we really participate more of light then of darkness that is more of good then of bad III. Humane Laws grow most out of these middle things ex mediis licitis and upon right examination we find that a Man hath nothing else to dispose for we poor subordinate Vessels cannot so much as deliberate de absolute debitis and absolute illicitis for they were in force before Man Prince or People were in being and God himself cannot now alter them they flowing intrinsically either from his Sanctity Wisdom and Justice as he is a Creator and Governour or else they flow from Nature whose rule according to Gods making it by that which is in himself is right reason and honesty This uprightâ—…ess of Nature together with that obligation we have to be subject to it was not a moment after us and therefore we could not determine any thing about it for which cause we have not a legislative power to alter or diminish any of Nature's Laws IV. Saint Paul tells us of those who without any after knowledge of Gods revealed will or Laws to Man were condemnable by those of Nature alone in the punishing the Breakers whereof No Man is naturally more a Magistrate then other otherwise what meant Cain when after his murther he cryed whosoever shall find me will slay me V. And though humane Laws remember us of those things yet it is not as if they gave their original and primary force of obliging yea reason of State is not busied so much about inward piety and virtue as it is about publick quiet and repose or those actions which regard another Mans receiving right or wrong and hence it is that great prodagility is not so severely punished as a little robbery and that malus homo potest esse bonus Civis the reason is because though he may do himself wrong in his own rights yet he may alwayes do other men right in theirs neither is there any clear reason wherefore those lesser sins and impieties should be punished by any but God who is wisest to know them justest to weigh the merit of them and powerfullest to punish them This is the State of Gods and of Nature's Laws to which we are all equally obliged but our floating and circumstantiated Laws are only to give a rule for an equal and mutual community in things which God and Nature gave us to dispose of as we would our selves VI. Hence it is that Kings and such as have equal power with Kings have a right to require punishment not only for injuries committed against themselves or their Subjects but for them also that do not peculiarly touch themselves whatsoever the Persons that do unmanly violate the Law of Nature or of Nations for the liberty by punishments to provide for humane Society as hath been already mentioned was in the hand of every man 〈◊〉 but after Common-wealths and Courts of Justice were ordained it resided in the hand of the highest Powers not properly as they are over others but as they are under none For subjection to others hath taken away that right yea so much more honest is it
the which this Isle by the Influence of his Royal Majestic hath been no small sharer in Hence it is that Trade and Commerce are now become the onely Object and Care of all Princes and Potentates its Dominion not being acquired by the rufull face of Warr whose footsteps leave behind them the deep impression of misery devastation and poverty they knowing the return of Commerce is Riches and Plenty of all things conducing to the benefit of humane life and fortifying their Countries with Reputation and Strength It was Trade that gave occasion to the bringing of those mighty Fleets to Sea as if God had left it to them to decide by force wherein no Age or Time can witness the like the Empire of the World Hence it was the advantages being found which arise by Commerce that Navigation got its birth into the World reducing the several Nations on the Earth by that means to be even as one Common Family and when in this Isle we were even in the state of Canibals it brought in a People that instructed us in Arts Policies and Manners and taught us actions no less virtuous then those themselves followed And although long and difficult it was before that Mighty People could be brought over to have thoughts of the advantages arising from Commerce and Navigation they onely propounding to themselves Blood Slaughter Conquest the Riches and Spoyls of Nations but when they entred into the Carthagenian Warr a quarrel with a People not worth the opposition of Tribune as they thought but finding that neither Tribune nor Pretors no nor the Flower of the Roman Army was able to withstand them or to prevent the Invasion of their Country and then in the very bowels of the same put it to the Question Rome or Carthage Mistress of the World they began to consider whence and from what causes those unknown Affricans should withstand the Conscript Fathers and power of Rome and should dare to dispute with those that had lead so many Captivated Kings in Triumph and brought so many Haughty Nations to Truckle under their Victorious Eagles at last they found it was Commerce and Navigation that gave power and force to that Mighty People Then it was that Rome began to know that Rome could not be Rome without a Naval force the which and to redeem their bleeding Honor they soon hastened and equipt ' great as their Competitors and afterwards Argentum being won Carthage became no more impregnable after which with Peace they plowed the Neighbouring Streights to Tinges Gades and the Heroulean Streights nor could any thing be too difficult afterwards till they arrived on the British shore where beholding her ample Bayes Harbours Rivers Shoares and Stations the Jewels and Ornaments of that Spott and having made a Conquest of the same they soon cultivated into our rude Natures the spirit of Commerce teaching instructing us in those polite ways that fortifie a Kingdom by Naval force as the Standard and undeniable marks of Empire and by ayding and teaching us in the driving on a continued and peaceable Tract of Commerce we have fathomed the unknown depth of the Indian Shoares uniting as it were extreams made the Poles to kiss each other teaching us thereby that it was not the vast Emensities of Earth that Created Empire but scituation accompanied with Industry Commerce and Navigation that would enable a People to give Lawes to the World In the pursuit of whose Virtues this Nation hath not been wanting and of following their great Directions in the enlarging our Fleets for they when they advanced their Eagles on the British Shoare found us not then without Ships of Force time having not been so envious to this Island as to eat out those Records wherein mention is made that the Britains accompanied the Cymbrians and Gaules in their Memorable Expedition to Greece long before the Incarnation of the Worlds Saviour and it was from that Center that the Mighty Caesar first drew his Line and took thoughts of plowing the Ocean to find out that Warlike People to face his victorious Legions when having Landed and finding a place adorned by Nature beyond any thing that could be called great taught us to maintain that superiority of Dominion that no Neighbouring Nation should frequent our peaceable Shoares and those Merchants that came assigned them places to drive their Commerce and Traffique jealous that any Neighbouring Rival should kiss his beloved Britannia but a Roman and for whom he fetch 't so long and tedious a march Thus in our Infancy teaching us both Defence and Commerce And when that mighty Empire began to decline and those remaining Romans began to moulter and mix among the Natives and to become as one People again then Sloth Luxury and Idleness the fore-runners of ruine invaded our Shoars by a fatal stupidity it suffered our floating Castles Balwarks of the Kingdom to rott in their pickled Brine and our Ports to be surveyed by forraign people which supine negligence soon subjected us a prey to our ambitious Neighbors who no sooner finished their Conquest and sheath'd their devouring Swords but each as if inspired by the very genius of the place Equipt out Fleets great as their Commander to secure what they had so dearly won of whom Story makes mention of the mighty Arthur no less famous in his Warlike Atchievements then in leading his Squadrons as far as Iceland bringing those Northern People to pay obeysance to his victorious Standard and acknowledge him as their Supream Lord even from the British to the Russian Tracts and by him left to the famous Edgar who no sooner found his undoubted Right but resolved to vindicate that Dominion which his Royal Predecessor had with so much glory acquired and with so great care had communicated and remitted down to his Successors No less a number then four hundred Sayl of Ships did that mighty Prince at once cover the Neighbouring Ocean making them the Port-cullis of this Isle and the adjacent Seas by which he vindicated his Dominions on the Waters and gave Lawes in the Chambers of his Empire Nor did his Successors Canutus whom Record makes mention that having laid that ancient Tribute called Danegeld for the guarding of the Seas and Soveraignty of them was emblematically exprest sitting on the shoar in his Royal Chair while the Sea was flowing speaking Cumeae ditionis es â—…t tetra in qua seneo est â—…c Egbert Althred Ethelfred forget the assertion of their great Predecessors Dominion and Soveraignty of the same under no lower a stile then Sâ—…pream Lords of Governours of the Dâ—…ean surrounding the Brittish Shoare never so much as contested by any Nation whatsoever unless by those that attempted the Conquest of the entire Empire in which that became subject to Fate as well as the other of the Land Nor did the succeeding Princes also of the Norman Race start or waive that mighty advantage in their
Flagg and lower his Top-Sail at his first approach to the French Fleet and to salute the Admiral of France with Guns who was to return the said salute by Guns also as was usual when the Dutch and English Fleet did meet Only in this the right of the Flagg of England differs from that claimed by the French for if there had been a failer on the part of the Dutch of paying that respect to the French the same would have amounted to no more but a breach of the League but the not striking to the King of Englands Flagg is open Rebellion and the Article does so signify for it is there mentioned as a Right and Soveraignty not a bare Dominion only like that of Jerusalem to the King of Spain XII The Duty of the Flagg that hath been so constantly pay'd to our Ancestors is of such advantage to the continuing the renown of this Nation that it serveth to imprint new reverence in Forreigners that render it and adds new courage to those of our Sea Men that exact it and since we know how much it imports a State that it be reverenced abroad and that Repute is the principal support of any Government it equally influenceth the Subjects at Home and Forreign Allies abroad And as there is no Nation in the World more tender of their Honour then the English so none more impatiently tollerate the diminution thereof with what resentments would not only the more generous and Noble but even the Popular and vulgar Sea Men detest this or any succeeding Age should they remit or loose that Regality those acknowledgements which their Predecessors with so much Glory asserted and the neglect whereof was alwaies punished as open Rebellion the indignity of such an Action being sufficient to enflame the whole Kingdom the consideration of which besides his Sacred Majesties own Royal inclination to the same and his evident testimonies never to abandon a ceremony of so high a concernment witness the exposing the one half of his own heart his Royal Highness in the asserting the same with such Fleets and in such Battles that no Age or time cannot shew a memorial of the like are causes sufficient to create in us new flames of love to those Royal Patriots and Defenders of our Rights Private Persons move in another sphear and act by other Rules then Soveraign Powers the regard of credit with them may oftentimes yield to those of utility or other motives the Publique receives little injury thereby or is their wisdom questioned for such punctilio's if they relinquish them for other Imoluments or Peace sake but Soveraigns cannot so transact their subjects the People participate in their Honour and indignities they have a property a direct Right in the former Soveraignes cannot alienate or suffer their Honours to be impaired because it is not really theirs it appertains to the Nation universally and they are all effectually injured by such transactions either because the indignity doth really extend to them or because the Government and Authority is thereupon weakned and prejudiced which is the greatest of Civil detriments that can befall a People though ordinarily they are not aware thereof As Prudence doth thus distinguish betwixt the demeanor of Private and Publique Persons so doth Charity it self for though the Gospel precepts do oblidge particular Persons to bear injuries and contumelies with patience and to surrender even the Coat as well as the Cloak yet is not this so to be construed as if even Private Christians were to yield up their Civil Rights to every insolent that would incroach upon and usurp them or that they were to deprive themselves of those Reparations which the Law and Government affords them neither is it so to be understood as if the Civil Magistrate in Christendom might not secure himself of that obedience and reverence which is due unto dignity but bear the Sword in vain XIII This being the value which this Nation did alwaies place upon the Right of the Flagg the which they never did regard it only as a Civility and Respect but as a principal Testimony of the unquestionable Right of this Nation to the Dominion and superiority of the adjacent Seas acknowledged generally by all the Neighbour States and Princes of Europe and must be pay'd and ackowledged by all Princes in the World that shall be or pass on the same The Maritime Dominion by the Laws of England were alwaies accounted the Four Seas such as are born thereon are not Aliens and to be within them is to be within the Legeance of the King and Realm of England The Records in the daies of Edward the 3d. and Henry the 5th proclaim it that those Kings and their Progenitors had ever been Lords of the Seas and amongst those many great Instances of proving the Soveraignty of the same is that famous Record of Edward the first and Phillip the Fair of France in which the Procurators of most Nations Bordering upon the Sea thoroughout Europe as the Genoeses Catalonians Almaines Zelanders Hollanders Freislanders Danes and Norwygians besides others under the Dominion of the Roman German Empire where all joyntly declare That the Kings of England by right of the said Kingdom from time to time whereof there is no memorial to the contrary have béen in peaceable possession of the Soveraign Lordship of the Seas of England and of the â—…es within the same with power of making and establishing Laws Statutes and Prohibitions of Arms and of Ships otherwise furnished then Merchant Men use to be and of taking surety and affording safe-guard in all cases where néed shall require and of ordering all things necessary for the maintaining of Peace Right and Equity among all manner of People as well of other Dominions as their own passing through the said Seas and the Soveraign Guard thereof By which it plainly appears That the King of England had then been in peaceable possession of the said Dominion by immemorial prescription that the Soveraignty belongeth unto them not because they were Domini utriusque ripas when they had both England and Normandy and were Lords of both shores for Edward the first at that time had not Normandy but that it is inseparably appendant and annexed to the Kingdom of England our Kings being Superior Lords of the said Seas by reason as the very Record mentions of the said Kingdom and since that the Soveraignty of the Sea did alwaies appertain unto the English King not in any other Right then that of the Kingdom of England no Prince or Republique ought or can doubt the Tittle by which our present claim is deduced 't is in right of Britannia that the same is challenged 't was in that right the Romans held it the claim justified Ed. 3. and his Rose Noble though there are other reasons regarding to the Lancastrian Line which yield a Colour for the use of the Port-cullis in the Roal Banners of England
digni sunt qui Navium detrimentum in aliquibus perficiunt notum esse cupimus quicunque aliquam ex Navibus per quampiam inertiam vel incuriam vell negligentiam corruperit tamen recuperabilis sit is Navis corruptelam vel fracturam ejusdem per solidam prius recuperet Regique deinde eaque pro ejusdem munitionis fractura sibimet pertenent rite persolvat Most certain it is that the Kings of England have in all Ages by their Writs and Patents commanded not only the Admiral but the Wardens of the Cinque Ports and others to arrest and provide Ships of War and other Vessels and impress and provide Masters of Ships Sea Men Mariners and all other necessary Tackle Arms and provisions for Ships for the defense of the Sea and the Realm against forreign Enemies or for transporting of Armies paying their freight if not bound there by tenure as well as to elect and provide all sorts of Souldiers Carpenters and others Officers to be assistants in their several Expeditions But Firshermen or Mariners pressed for the Service are not to be imploy'd as Souldiers but only as Mariners unless it be in casâ—…s of great necessity or bound thereunto by tenure Custom or Covenant And Water-Men that shall withdraw themselves in time of pressing shall suffer a fortnights imprisonment and be prohibited to row on the Thames V. The reason why the Admirals had such power given them was because they being sometimes called Capitanei and Gubernatores Flotarum they had their ordering and Governing of the Ships of War and the raising and fitting up such Ships for the Navies as they thought fit other times called Custodes Maritimarum partium their duty being to provide all Naval provisions as well to supply the Kings Navies occasions as to gratify another of the Kings Friends when distress should constrain them to touch in his Ports that his Subjects might receive the like retaliation again they were called Capitanei Nautarum Marinellorum as in reference for the deciding all differences amongst those in the Kings service and punishing of such as transgressed and as the place was great so the power was large especially in all things belonging to the Navy-Royall in which they had the Supream rule and Government in all things belonging to it He sate formerly in the Kings House and there kept his Court as the French Admirals do at this day at the Marble-Table in the Kings House at Paris It is lawful for every Man to addict and yield up himself to whom he pleaseth as appears both out of the Hebrew Law and Roman Law why then may not any people being at their own dispose give up themselves to their Prince or Soveraign so as to transcribe the right of commanding their aide and help as often as need shall require it is not here inquired what may be presumed in a doubtful case but what may be done in point of right most certain such a power may well be done and that grounded on great reason first if the Common-wealth should happen to be invaded by such a one as seeks not only the subversion of the Government but the destruction of the people and they can find no other way to preserve themselves but that the supream power should be vested with such such a Prerogative as to inforce or presse the Inhabitants to serve in Armes in the defence of the same and the contempt of which to punish or if they should be opprest with want and that supplies of provisions can no waies be had but by compelling another by force to exhibite the common offices of humanity to a Nation in whose Territories a famine rages that the Inhabitants should on such extraordinary occasions be compelled by force to serve in Armes And this Dominion may be obtained several waies either by a voluntary resignation to a Conqueror as they of Capua to the Romanes Our Land the Temples of our Gods all Divine and humane things we yield up into your hands O ye Conscript Fathers again Freedom may be granted to all by a Conqueror except Mariners which should in cases of necessity be excepted or that some Prince who will not suffer any Mariner to go out of his Dominions without subjecting themselves to such a reasonable command and the Majority of Nations on such grounds may abdicate from a part of them the entire Freedom of that member Nor are their examples of this kind wanting the Germans are every one Master of his owne house but are almost on every occasion subject to their Lords especially in their Goods The Irish Cosherers which were reprehendinations when the Chief Lord and his retinue came to his Tenants House and fed upon their provisions till they were spent all being solely at their devotion And as to the Sea the King of Britain may at this day restrain Merchants or Mariners to pass out of the Realm without licence and the various tenures that are introduced which is presumed were since the Conquest were no other but the will of the Conqueror for the right is not measured by the excellency of this or that form but by the will VII And though it hath been conceived by some that the King cannot presse Men to serve in his Wars giving their reason that of old he was to be served either by those that held by tenure those that covenanted by Indenture to provide Men or those who contracted with the Kings Officers for wages and entered into pay or those that were in Prison for the Kings debts but that only extended to those Wars that were by Land not one word in all those acts or Mr. Rolls that any waies mention the least of Mariners and yet what vast Fleets were in those daies but on the other hand it hath been alwaies accustomed to presse such sort of Men for the Naval Expeditions the antient records that mentions such Persons subject to presse by Law is that of 49 E. 3. commonly called The Inquisition of Queenborrough wherein it was expresly in charge amongst others to inquire of those Mariners that were pressed for the Kings Service and deserted the same So likewise by those other Articles translated by Roughton it is expresse in charge to the Jury to present those that being prest to serve brake the Kings Arrest in order to their punishment and in those daies it was esteem'd an high offence and the Oath which the Jury then took being impanelled was this This here see My Lord the Admiral that I Ionathan Nash shall well and truly enquire for our Lord the King and well and truly at this time then serve at this Court of th' Admiralty present at moch as I have acknowleche or may have by information of eny of my fellows of all mane Articles or circunstances that touchen the Court of the Admirate and Law of the Sea the which shall be grate to me at this time and I thereupon sworne or
Sometimes a General Truce holds the place of a Peace as that of a hundred years Such Truces are commonly made betwixt Princes that are equal in Power and will not quit any thing of their Rights by Peace and yet desire to live quietly in the State wherein they are satisfying by this medium the Point of Honour IV. Treaties of Truce are many times less subject to Rupture then a Peace which is made perpetual for Princes or States that find themselves aggrieved with a Treaty that is perpetual seek out plausible reasons to forsake it seeing the grievance cannot be otherwise repaired but if the time be limited and expired they may pursue that which they think ought to be granted and the other may oppose and if they have a desire to continue the Truce there is nothing so easy as to renew it Hence it is become a Maxim in State that seeing Treaties are grounded on the Interests of Princes which change with the time it is necessary to change and settle them at the end of the time or to break them off for it is in vain to trust to a bare Friendship A Truce is likewise made to advance a Peace and to treat it so likewise it is sometimes promoted for the more honest discharge of a League which is made with some other Prince whom they have accustomed to comprehend therein so as a Peace following it or a Truce not being accepted by him they take accasion to leave the League it being not his fault that leaves it that the War was not ended And although it seems that a Truce cannot by its condition prejudice the pretention in the Principal yet it is most certain that if he which is chased out of a contentious State consents that during the Truce the Commerce shall be forbidden to his Subjects he doth wholly stop the gate as Lewis the 12th did in the Truce which he made with Gonsalve after the Conquest of the Realm of Naples In England by the Stat. 2 H. 5. cap. 6. Robbery spoiling breaking of Truces and Safe-Conducts by any of the Kings Liege People and Subjects within England Ireland and Wales or upon the main Sea was adjudged and determined to be High-treason but this branch concerning High-treason is repealed by the Stat. of 20 H. 6. cap. 11. but by the said Act of 2 H. 5. for the better observation of Truces and Safe-Conducts Conservator Induciarum salvorum Regis conductum was raised and appointed in every Port of the Sea by Letters Patents his Office was to enquire of all offences done against the Kings Truces and Safe-Conducts upon the main Sea out of the Counties and out of the liberties of Cinque Ports as Admirals of Custom were used to do Sir John Trebiel was committed to the Tower for taking a French Ship and being brought into Parliament did there justify the same but at last confessed his fault and begged the Kings Pardon generally all Leagues and Safe-Conducts are or ought to be of Record that is they ought to be Inrolled in the Chancery to the end the Subject may know who are in Amity with the King and who not who be Enemies and can have no Action here and who in League and may have Actions personal here Sometimes they have been inrolled in the Wardrobe as being matters of State Note In all Treaties the power of the one party and the other ought to be equal nor are they to be held firm till ratified Before the Statute when any breach of Truces or Leagues happened or was occasioned by the misdemeanours of any of the King of Englands Subjects there did usually issue forth Commissions under the Great Seal of England to enquire of the fringers of the same and to punish and award satisfaction to the injured VI. Princes who neither love nor hate any thing absolutely seem generally inclined to neutrality and in that govern themselves in their Friendships according to their interests and Reasons of State in effect is no other but Reason of Interest Neutrality may be of two sorts the one with Alliance with either part the other without Alliance or so much as the least tie to the one or other which is that which properly may be called Neutrality The first is governed by the Treaty of Neutrality the latter by the Discretion of the Neuter Prince whose carriage ought alwaies to be such as that he may not give the least glimpse of inclining more to one then to another VII The advantages of Neutrality are that the neuter Prince or Republique is honoured and respected of both Parties and by the fear of his declaring against one of them he remains Arbitrator of others Master of himself And as a Neuter neither purchases Friends nor frees himself from Enemies so commonly he proves a prey to the Victor hence it is held more advantage to hazard in a Conquest with a Companion then to remain in a State wherein he is in all probability of being ruined by the one or the other But Princes that are powerful have used generally to preserve a Neutrality for whilst Petty Princes and States ruin themselves by War he fortifies himself with means and in the end may make himself Judge of their differences On the other hand it hath been conceived that Reipubliques that are weak what part soever they take it will be dangerous unto them especially if they are in the midst of two more powerful States then themselves but experience hath made it appear to the contrary that Neutrality is more beneficial to a weak Prince or Reipublique so that they that are at War be not barbarous or inhumane for although a Neutrality does not please either party yet in effect wrongs no Man and as he doth not serve so he does not hurt besides his declaration is reserved till the issue of the War by which means he is not oblidged that by siding with eiher party to gain or loose by the War VIII But if the Neuter be prest by necessity to declare himself he must do it for the most powerful of the two parties following that Roman Maxime That either they must make themselves the strongest or be a friend to the strongest So they of Strasburgh declared for the Empire against the French on the other hand if the Neuter sees that joyning to the weaker will ballance the power of the stronger and by this counterpoize reduce them to reason the same hath been generally followed upon the Maxime That the safety of States consist chiefly in an equal counterpoize of the one and the other for as the greatness and oppulancy of a Prince draws after it the ruin of their Neighbours it is wisdom to prevent it CHAP. X. Of the immunities and Priviledges of Ambassadors and other publique Ministers of State I. Of the Function of Ambassadors and Agents generally II. Of their right and protection by the Laws Divine and of Nations III. Of
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
such a Stock or Portion may be purchas'd that is the advantage or benefit arising by the improvement of the same As for Instance The East-India Company hath a Stock lodged in their hands by divers persons which they in the most prudent'st manner as they see fit imploy to those places as they judge most proper if a return is made the advantage of that is distributed â—…o each person that is any way entitled to that Stock which advantage is called a Divident and perhaps may afford some years 20 or 30 per Cent. But on the other hand if that that proportion of the Stock which goes out happens to miscarry the abatement is proportionable and so the Stock may be lessened unless that they will stay the Dividents to keep the Stock the which they may do For it is a Trust reposed of so many mens Moneys in their hands to yield them such advantage as they shall upon a just account set out So that if a man hath a 1000 l. Stock he cannot take the same out of the Great Stock whereby to lessen the same but he may transfer that usu-fruite by that Customary way which they have to any other person for a valuable consideration infinitum Such a Stock of 100 l. in the East-India Company in time of Warr might have been purchas'd for 80 l. Nett but now in time of Peace scarce got under 170 or 180 l. the Dividents running high CHAP. XII Of Impositions called Great Customes Petty Customes and Subsidies I. Impositions whether they may be commanded without the Three Estates and of Magna Charta touching the same II. Of Impositions made voluntary by consent of Merchants and of the adnull of the same III. Of the Confirmation of the Great Charter for free Traffique and of the Settlement now made on his Majesty of the same IV. Of the Immunities formerly of the Hansiatique Towns here in England and when determined V. Of the Antiquity of Customers or Publicans as well in former Ages as at this present time in most Nations VI. Of the Imposition called Magna Custuma VII Of that which is called Parva Custuma payable by strangers and the Act called commonly Carta Mercatoria VIII Of Subsidy and of what and the Rates how set IX Of Subsidy by Strangers on wines X. Of Goods not rated how to pay XI Of the Subsidy-Duty for Cloaths I. THat Impositions neither in the time of Warr or other the greatest necessity or occasion that may be much less in the time of Peace neither upon Forraign nor Inland Commodities of what nature soever be they never so superfluous or unnecessary neither upon Merchants Strangers nor Denizens may be laid by the King 's absolute Power without Assent of Parliament be it never so short a time By the Statute of Magna Charta Cap. 30. the words are All Merchants if they were not openly prohibited before shall have their safe and sure Conducts to enter and depart to go and tarry in the Realm as well by Land as by Water to buy and sell without any Evil Tolls by the Old and Rightful Customes except in the time of Warr and if they be of the Land making Warr against Us and be found in Our Realm at the beginning of the Warr they shall be attached without harm of Body or Goods untill it be known to Us or Our Justices how our Merchants be intreated there in the Land making Warr against Us. The Statute of which this is a branch is the most ancient'st Statute Law we have won and sealed with the Blood of our Ancestors and so reverenced in former times that it hath been 29 times solemnly confirmed in Parliament II. Impositions were in some sort done Consensu Mercatorium by Edward the First and Edward the Third And again in Henry the Eighth of which the House of Burgundy complained as against the Treaty of Entercourse King Henry the Third finding that such a Modus of Imposition tended to the destruction of Trade and apparent overthrow of Commerce and was against the Great Charter made Proclamation Anno 16. in all Ports of England That all Merchants might come faciendo rectas debitas consuetudines nec sibi timeant de malis tollis for that such Impositions had no better name then Maletolts The like was declared and done by Edward the First in the 25th year of his Reign and Edward the Second in the 11th and 12th years of his Reign III. In 2 Ed. 3. the Great Charter for Free Traffique was Confirmed and about some 3. years after there were Commissions granted for the raising of a new kind of Tallage but the people complained whereupon the Commissions were repealed and he promised never to assess any but as in the time of his Ancestors But this Prerogative Power of Imposing inward and outward upon Commodities over and above the ancient Custome of Subsidy without a free consent in Parliament is now ceast and settled And that Question which for many Ages had been handled by the most Learned'st of their times in the asserting and in the denying will never more be remembred Which being managed for some time was afterward farmed out The like having been done by former Kings as did Edward the Third with the New and Old Customes of London for 1000 Marks monthly to be paid unto the Wardrope Richard the Second Anno 20. Farmed out the Subsidy of Cloth in divers Counties So Edward the 4th Henry the 8th Queen Elizabeth and King James the same having been used in former Ages even in the best govern'd State Rome which let out Portions and Decim's to the Publicans IV. The Old Hanse Towng viz. Lubeck Collen Brunswick Dantzick and the rest had extraordinary Immunities granted unto them by our Third Henry for their great assistance and furnishing him in his Warrs and Naval Expeditions with so many Ships and as they pretended the King was not onely to pay them for the Service of their Ships but for the Vessels themselves in case they miscarried The King having concluded a Peace and they being on their return home for Germany the most considerable part of their Fleet miscarried by Storm and stress of weather for which according to Covenant they demanded reparation The good King in lieu of that which he wanted Money granted them divers Immunities and amongst others they were to pay but 1. per Cent. Custome which continued till Queen Mary's time and by the Advice of King Philip she enhanced the 1. to 20 per Cent The Hans not only complained but clamoured aloud for breach of their Ancient Priviledges confirmed unto them by long Prescription from 13 successive Kings of England and the which they pretended to have purchased with their Money King Philip undertook to accommodate the business but Queen Mary dying and he retiring nothing was effected Complaints being afterwards made to Queen Elizabeth she answer'd That as she would not innovate any thing so she
him on the face and gave him a push on the back and after this he was Registred for a Freeman This being performed the Servant having his head shaven purposely at that time received a Cap as a Token of Liberty Tertullian observes That at this time of their Manumission the Servants received from their Masters a white Garment a Gold Ring and a new Name added to their former By the Laws of England every Subject Born within the Kings Dominions is a Freeman of this Realm as appears by the Grand Charter Cap. 14. yea though he be a Bond-Slave to a Subject But a Stranger Born is no Free-man till the King have made him a Denizon in whose Power alone without the help of any other one may be made Free To be a Freeman of the Realm the place of Birth is held more considerable than the Quality of the Person Yet by the opinion of Hussey Chief Justice in 1 R. 3. fo 4. And in Calvins Case of the Post Nati it is held for Law That if Ambassadors of this Realm have Children Born in France or else where the Father and Mother being Natural Born Subjects the Children are Free of the Realm of England But if either the Father or the Mother of such Children were an Alien then are not those Children Free But the Law is conceived to be otherwise at this day The Statute de Natis ultra mare 25 E. 3. Cap. declares the Issue Born of an English-man upon an English-woman shall be a Denizon for upon the Construction of this Statute it has been adjudged more than once That if an English-man marry a Foreiner and has Issue by her Born beyond Seas the Issue is a Natural Born Subject IX Disfranchising by the Romans called Capitis diminutio was Three fold Maxima Media Minima the least degree was when the Censors pulled a Man from a higher Tribe down to a lower and less Honourable or when by any Censure they disabled a man from suffraging or giving his Voice in the publick Assemblies such as were thus in the last manner punished were termed Aerarii and in aerarios veluti quia omnia alia jura Civium Romanorum preterquam tributi aeris conferendi amiserunt Gellius relates That P. Scipio Nascica and M. Pompilius being Censors taking a view of the Roman Knights observed one of them to be mounted on a lean starvling Horse himself being exceeding fat whereupon they demanded the Reason why his Horse was so lean himself being so fat his Answer was Quoniam ego inquit me curro statius mens servus By the Ancient Laws of England and by the Great Charter no Freeman shall be taken or Imprisoned but by the Lawful Judgment of his Peers that is by Jury Peers for Peers ordinary Juries for others who are their Peers or by the Law of the Land which is always understood by due process of the Law and not the Law of the Land generally for otherwise that would comprehend Bond-men whom we call Villains who are excluded by the word Liber for such Bond-men might be Imprisoned at the pleasure of his Lord but a Free-man neither could nor can without a just Cause nor does the Priviledge extend to private Actions or Suits between Subject and Subject but even between the Sovereign and the Subject Hence it is that if a Peer of the Realm be Arraigned at the Suit of the King for a Murder he shall be tryed by his Peers that is by the Nobles But if he be appealed of Murder upon the prosecution of a Subject his Tryal shall be by an ordinary Jury of 12 Free-holders and as the Grand Charter did and does protect the Persons of Free-men so likewise their Free-hold For by the same Charter it is declared That the King or His Ministers shall out no man of his Free-hold without reasonable Judgment and so it was rul'd upon a Petition in Parliament setting forth that a Writ under the Privy Seal went to the Guardian of the Great Seal to cause Lands to be seized into the Kings Hands and that thereupon a Writ issued forth to the Escheater to seize against the form of the Great Charter upon debate of which the Party had Judgment to be restored the greatest and most Explanatory Act which succeeded in point of Confirmation was that of Edward the 3d. the words are That no Man of what Estate or Condition soever he be shall be put out of the Lands and Tenements nor taken or imprisoned nor dis-inherited nor put to death without he be brought to answer by due process of the Law that is by the Common Law 2. Diminutio media was an Exilement out of the City without the loss of ones Freedom the words of the Judgment or Sentence were Tibi aquae igni interdico 3. Diminutio maxima was the loss both of the City and the Freedom and by his Judgment or Sentence was obliged and limited to one peculiar Countrey all other places in general being forbidden him There was a Fourth kind of Banishment Disfranchising called relegatio which was the Exilement only for a season as that of Ovid's The Laws of England in this matter have some resemblance with those of the Romans for Bracton observes 4 Distinctions 1. Specialis hoc est interdictio talis Provinciae Civitatis Burgi aut Villae 2. Generalis Interdictio totius Regni aliquando est 3. Temporaria pro duobus tribus quatuor aut pluribus annis aut c. 4. Perpetua pro termino vitae exilium est aliquando ex arbitrio principis sicut in exiliando Duces Hertfordiae Norfolciae per Regem Richardum Secundum aliquando per Judicium Terrae ut fit in Casu Piers de Gaviston etiam in Casu Hugonis de le Spencer Junioris qui ambo fuerunt exilit ' per Judicium in Parliamento So likewise was that of the Banishment of the Earl of Clarendon who dyed beyond the Seas X. Abjuration was also a Legal Exile by the Judgment of the Common Law as also by the Statute Law and in the Statute of Westm the second Cap. 35. He which Ravishes a Ward and cannot render the Ward unmarried or the value of his Marriage must abjure the Realm and this is a General Exile And by the Statute made 31 Ed. 1. Butchers are to be abjured the Town if they offend the Fourth time in selling measled Flesh and this is a Special Banishment A man Exil'd does forfeit these things 1. Hee looseth thereby the Freedom and Liberty of the Nation out of which he is Exiled 2. He forfeits his freedom in the Burrough or City where he was free for he which forfeits the Freedom of the whole Realm forfeits his Freedom in every part 3. The Law accounts him as one dead for his Heir may enter and so may his Wife enter into her own Lands and may sue
Consciences of Princes for say they that as a private Man is not bound by that which he hath promised by force or fear so it ought to take place amongst Princes and in Treaties which are made betwixt Soveraigns but that is ridiculous for that were in effect to banish Faith from all publique Negotiations for there is no Treaty but is usually made in Arms by force or through fear to loose either Life or Goods or Liberty or the State which are causes of just fear and may shake the most constant VIII Some Princes desirous to shew themselves more religious in these ruptures have taken subject and occasion upon the ambiguity of some clauses in the Treaty or upon equivocation as Charles the Fifth did or else they seek other occasions as attempting against those whom their Allie is bound to defend to the end that drawing him into the field he may lay the cause of the Repture on him But Princes who respect such Treaties with a pious intention of preserving them alwaies remain constant and firme and though occasion may offer it self by which they might get advantage by the breach yet when they remain durable such respect is afterwards had to their Word and Honour that fewer and lesser securities will be demanded of them then one whose Faith is doubted IX But assurances in cases of this nature has been found more in Reipubliques then in Princes for though Reipubliques have the same mind and have the same intentions as Princes yet for that they move but slowly it will cause them to stay longer in resolving Famous is that of the Atheneans when Themosticles in his Oration told them that he could discover a matter in which the Atheneans would reap great advantages in but he could not tell it for fear the discovery would take away the opportunity of atcheiving it whereupon the Atheneans deputed Aristides to whom he should communicate the secret and with him should consult about the obtaining it they meeting Themosticles demonstrated that it was in the power of the Atheneans to make themselves Masters of all Greece for the Grecian Naval Army was then in their Ports and Protection whereupon Aristides reply'd The same was a breach of Faith But it was answered it being for the publique all considerations of that kind ought to be laid aside whereupon Aristides being called by the People to give a Report told them Themosticles's advice was exceeding profitable but dishonest for which cause the People wholly refused it X. If one party has violated the League the other may most certainly depart from it for the transgression of the Articles be it never so little makes a breach of the agreement unless it be otherwise prevented by Condition which may be by incerting into the same that for every offence it may not be lawful to depart from the League XI In all Leagues the thoughts of Princes and States are to be considered not what they said yet because internal Acts are not visible by themselves it is necessary that somewhat certain should be determined i. e. reduced to Heads or Writings otherwise there would be no obligation at all for then every one might free himself by affixing on his own words what sense he pleases Hence it is that by the dictates of Natural reason he to whom any thing is promised hath a right to compel the promiser to that which right Interpretation suggesteth for otherwise the matter would have no end XII In the Interpretation of Leagues and Truces there ought to be a very great care had in regard of the Sacredness of them therefore in things promised or secured by such Leagues some are favourable some odious some mixt or of a middle nature Those that are most favoured are those whose words tend to Peace not to War whose foot-steps leave ever behind the deep impressions of misery devastation and poverty but more especially when such Leagues are made for War Defensive then otherwise but those are called odious which burden or oppress one part only or one more then the other and likewise such as tend to matter of Revenge or Punishment or to violate some former acts or obligations or the bringing in a change or innovation of what hath been constantly settled and used before Mixt as where a change is propounded but that is with the Sisters of Moderation and Peace which are proportionably good according as the change may be esteemed Therefore the Standard Rule is that in Leagues and Treaties not odious the words are to be taken according to the full extent and propriety of popular use and if there be more significations the largest is best on the other hand we are not to recur to significations plainly improper unless otherwise some absurdity or inutility of the agreement would follow Again words are to be taken ever more strickly then propriety suffers if it be necessary for the avoyding of inequity or absurdity But if there be not such necessity manifest equity or utility in the restriction we are to stay them within the narrowest bounds of propriety unless the cirumstances disswade on the other hand in Leagues or Promises odious even a figurative speech is admitted to avoid the Odium or burthen therefore in Donation Remission of ones Right Dominion or property they are alwaies to be construed to those things which were probably thought on and really intended So aids and succours promised from one part only is to be understood to be due at the charges of him who shall acquire them CHAP. IX Of Treaties of Truce and Neutrality I. Of Treaties the various sorts II. Of Rules in cases doubtful III. Of Truces amounting to a Peace IV. Of the advantages between Treaties of Truce and Peace V. How preserved and punished in England VI. Of Treaties of Neutrality the various sorts VII Of the advantages of the same VIII In cases of necessity where he ought to declare and for whom I. TReaties are either with Enemies or Friends or with Persons which desire to continue Neuters with us or we with them The Treaties which are made with our Enemies are either for a time or perpetual Perpetual as the Peace that is made to compose all differences and the War that is undertaken for Conquest or for Reparation of injuries or to restore the Commerce Treaties which are made for a time with our Enemies are called Truces the which are either General for all the States of the one or the other Prince for all Persons and for all sorts of Commerce Or else they are Particular for certain Places for certain Persons and for the Commerce II. When any one is bound by Alliance not to make Peace or Truce without the consent of his Allie and whose agreement seems doubtfull they set down no prefixed time but that it shall continue till he refuse and some reasonable time ascertained after as that which was made betwixt Charles the Eight and the King of Spain III.