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A06786 Consuetudo, vel lex mercatoria, or The ancient law-merchant Diuided into three parts: according to the essentiall parts of trafficke. Necessarie for all statesmen, iudges, magistrates, temporall and ciuile lawyers, mint-men, merchants, marriners, and all others negotiating in all places of the world. By Gerard Malynes merchant. Malynes, Gerard, fl. 1586-1641. 1622 (1622) STC 17222; ESTC S114044 480,269 516

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the Sea is adioyning and in proprietie to bee esteemed accordingly taking their names of the Countries and Kingdomes adiacent or of their scituation as Mare Britannicum Mare Germanicum Mare Hibernicum and for scituation Mare Mediterraneum obserued by Cosmographers Historiographers and Mathematicians this is performed with the helpe of the Compasse counting of courses soundings colour of the grauell or sands and other wayes to designe Finitum ab ' i●finito By the Ciuile Law so farre as is expedient for the certaine reach and bounds of Seas properly apppertaining to any Prince or people wherein the Doctors of the Ciuile Law haue recorded excellent obseruations By the Law of Nation and Customes Baldus saith Vidimus de iure gentium in Mare esse Regna distincta sicut in terra Auda Ad legem 1. de ter diuisione In §. nullius in tratt de i●sula Bartolas doth in his opinion allow for princes and people at the sea-side Centum mitliaria which is one hundreth leagues of sea from their coast if they extend their protection so farre called by them Districtus maris territorium which is most plaine in those seas where the Isles of Garnesey and Iarnesey are so sensible and visible to the realme of England Visible Markes of Dominion or where there are such rockes or eminent marks as the Washes at the West seas thereof to which purpose Paulus a renowmed Ciuilian saieth That it is not needfull for him who would possesse himselfe of any land to go about and tread ouer the same but it is sufficient to enter in vpon any part thereof with a mind to possesse all the rest thereof euen to the due marches to be made apparant by the instruments of Geometricians And the like may be designed vpon the seas notwithstanding the soliditie of the one and the continuall flowing too and fro of the other This distinction of dominion hauing continued so many hundreth yeares needeth not to be corroborated with other proofe and arguments yet let vs note obiter That if the same were not distinguished as aforesaid Cases of ciuile Law or Admiraltie one borne vpon the seas should haue no countrie or nation to appeale vnto and a man dying intestate vpon the seas should minister occasion of question to know who should administer his goods and making of a Will how the same should be proued and executed by law without approbation of some Court or Iurisdiction whereas we find many Admiralls of the seas and their seuerall iurisdictions vpon the seas as deputies to their Princes or States who are alwaies absolute Commanders in their precincts according to the treaties and contracts made betweene Princes which are in the nature of lawes and inseperable of the said Princes right on the land concerning the possession of their Kingdomes or Common-weales as the fundamentall cause of their dominion wherein discontinuance of any part of their right cannot be pleaded against them The Kings of England neuerthelesse haue beene prouident and carefull herein for Historiographers haue recorded That King Edgar one of the Saxon Kings long before the Conquest made a suruay yearely of the foure great seas Mathew of Westm. and stiled himselfe lord thereof euen vntill Norway Ranulph Cestriensis and his progresse was most towards the North. It is also affirmed Anno 973. That the said King Edgar caused an inscription to be made vpon his Tombe for a monument calling himselfe Dominus quatuor Marea and as Papinian the Iurisconsult saieth In finalibus questionibus vete ra monumenta sequenda sunt Mare Britanicum But this for the dominion of the Kings of England ouer their seas Mare Hibernicum is not needfull For afterwards William Duke of Normandie after he had subdu●d the realme of England by conquest Mare Germanicum caused himselfe not onely to be proclaimed King Mare Deucalidon but also that all the goods of the subiects were his and so caused the land to be diuided and yet was contented to change the title of a Monarchie by conquest into a Monarchie Royall and was also Lord of the said foure seas Io Bodinus de Resp. by the former assumpsit which had then continued 200 yeares and his progresse by sea was most Westward For when Princes or Kings do stile themselues by proclamation then the continuance thereof without opposition of other princes is holden and obserued as inuiolable and permanent Now King Henrie the second succeeding William the Conqueror Graftons Chronicle within one hundreth yeares did ioine Ireland to the crowne of England and did reduce Normandie and other places in France to the crowne taking as it were a new possession of the said seas and Henrie the first euerie yeare or within three yeares at the furthest crossed ouer into Normandie hauing taken Robert Duke of Normandie prisoner In the time of King Edward the third Chro. Malmesbu●e there was a disputation held with France concerning the fishing of the seas about Brittaine in which it was proued to belong to England Ioh. Hayward and thereupon Fraunce disclaimed therein By ancient records and Treaties c. as appeareth by the said King Edward the third his Proclamation yet extant Which arguments and contracts are as a law effectuall And here I must remember the singular care which the right reuerend father in God doctor Abbot now Archbishop of Canturburie A rare booke remoining with the Archbishop of Canturburie and Metropolitane of England hath had in procuring at his great charges for the good of our posteritie an excellent great Volume or Manuscript which was heretofore taken at Calice in France when the Spaniards tooke the same Anno 1596 and caried to Bruxels in the Low-countries whereof I haue had the perusall and made an Abstract of the Chapters of the same viz. The Treatie of Peace betweene Edward the third king of England and Iohn king of France for themselues and their eldest sonnes namely Edward the Blacke Prince of Wales and Charles Duke of Normandie Regent the French King his father being prisoner to the said King Edward which Treatie was made the eight of May 1360 in Britanie neere Chartres and confirmed at Calice whereupon sixteene Hostages were giuen to the King of England by the French King who was to come thither in person and to pay three millions of crownes for his ransome of two crownes to bee reckoned for an English noble called in King Henrie the eight his time Angell noble being some 750000 〈◊〉 sterling The ransome o' King Iohn of France The ship whereof vpon the one side did signifie the dominion of the seas whereunto old Chaucer the Poet did allude in Henrie the fifth his time This money was to be paied to weet six hundreth thousand crownes at Calice within 4 months after King Iohns arriuall there more foure hundreth thousand crownes within the yeare and so much yearely vntill the full paiment made
haue beene contented since Our comming to the Crowne to tollerate an indifferent and promiscuous kind of libertie to all Our friends whatsoeuer to fish vpon Our Streames and vpon any of Our Coasts of Great Brittaine Ireland and other adiac●●t Islands so farre forth as the permission or vse thereof might not redound to the impeachment of Our Prerogatiue Royall nor to the hurt and damage of Our louing Subiects whose preseruation and flourishing estate We hold Our selues principally bound to aduance before all worldly respects so finding that Our coniuence therein hath not onely giuen occasion of ouer great encroachments vpon Our Regalities or rather questioning of Our right but hath been a meanes of much daily wrongs to Our own people that exercise the trade of fishing as either by the multitude of strangers which doe preoccupie those places or by the iniuries which they receiue most commonly at their hands Our Subiects are constrained to abandon their fishing or at the least become so discouraged in the same as they hold it better for them to betake themselues to some other course of liuing Whereby not onely diuers of Our Coasts Townes are much decayed but the number of Marriners daily diminished which is a matter of great consequence to Our estate considering how much the strength thereof consisteth in the power of Shipping and the vse of Nauigation Wee haue thought it now both iust and necessarie in respect that Wee are now by Gods fauour lineally and lawfully possessed as well of the Island of Great Brittaine as of Ireland and the rest of the Isles adiacent to bethinke Our selues of good and lawfull meanes to preuent those inconueniences and many others depending vpon the same In the consideration whereof as Wee are desirous that the world may take notice that Wee haue no intention to deny Our neighbours and allies those fruits and benefits of peace and friendship which may be iustly expected at Our hands in honour and reason or are affoorded by other Princes mutually in the point of Commerce and Exchange of those things which may not prooue preiudiciall to them So because some such conuenient order may be taken in this matter as may sufficiently prouide for all these important considerations which doe depend thereupon Wee haue resolued first to giue notice to all the world That Our expresse pleasure is that from the beginning of the moneth of August next comming no person of what Nation or qualitie soeuer being not Our naturall borne Subiect be permitted to fish vpon any of Our Coasts and Seas of Great Brittaine Ireland and the rest of the Isles adiacent where most vsually heretofore any fishing hath beene vntill they haue orderly demanded and obtained licences from Vs or such Our Commissioners as Wee haue authorised in that behalfe viz. at London for Our Realmes of England and Ireland and at Edenborough for Our Realme of Scotland Which licences Our intention is shall be yearely demanded for so many Vessells and Ships and the Tunnage thereof as shall intend to fish for that whole yeare or any part thereof vpon any of Our Coasts and Seas as aforesaid vpon paine of such chastisement as shall be fit to be inflicted vpon such wilfull offenders Giuen at our Palace of Westminster the sixth of May in the seuenth yeare of Our Raigne of Great Brittaine France and Ireland Anno Dom. 1609. By this Proclamation is his Maiesties Right and Dominion of the Seas expressed in two words by Lineall and Lawfull possession of an hereditarie Kingdome or Kingdomes whereunto those Seas are ioyned and appertaining It is not a Dominion obtained by an electiue Kingdome as Poland Hungarie and others neither is it had by any first discouerie wherein the Pope must be a mediatour as Alexander the sixth was between the King of Castile and Portugal vpon the discouery of the East and West-Indies by drawing a line vpon the Globe from the Island of the Canaries to make the diuision betweene them Neither is it like to the Whale fishing in Greeneland where some vpon their discouerie tooke neither possession much lesse had any occupation which maketh the stronger right Neither is it by gift or purchase as some Italian Princes in the Mediterranean Seas which doe neuerthelesse inioy both freedome and benefit thereby but it is vndoubted and indisputable as aforesaid To conclude this Argument The best mark of distinct dominions vpon the Seas the distinct dominion of a bordering Prince vpon the Seas is best seene by the Tribute or Taxe which hee taketh vpon fishing ships whereof we haue many presidents In Russia many leagues from the Maine Fishermen doe pay great taxes to the Emperour of Russia and in most places none but his subiects are permitted to fish and the Hollanders doe giue him the tenth fish The King of Denmarke taketh great tribute both at Wardhouse and the Sound The Kings of Sweathen haue done the like which is now continued by the King of Denmarke for Norway The Duke of Medina Sidonia taketh for Tunyne King Edward the third of England tooke six pence for euery Tun in his time which by inhauncing of the money is now 18 pence All the bordering Princes of Italy doe take tribute of the fish taken within the Mediterranean Seas for their seuerall Territories In Lappia Fishermen doe pay monyes in the Sound for passage to fetch it ouer and aboue the tenth fish The Earle of Orkney taketh the tenth fish for the Isles of Orcades vnder his iurisdiction as the Fishermen doe to the Lords of the Manors in the West parts of England for Pilchards Hake and Conger The States of the vnited Low Countries doe take an Imposition vpon fish taken within the Seas and Streames of other Princes as also neere their Coast and their subiects trafficking with the Russians as Haunce Noblett Haunce Van stracle Robert Englegraue and others do continually pay the tenth fish vnto the Emperour of Russia All which is requisite for Merchants to know to preuent troubles or losses for the pretence of ignorance doth not excuse as our Merchants of Kingstone vpon Hull haue found to their exceeding losse heretofore CHAP. XXXVI Of Customes Subsidies and Impositions payed vpon Commodities WHereas Customes Subsidies Impositions Toles Customes vpon comm●dities due by the Law of Nations Accizes Imposts and other duties by the exemplarie actions of Princes and Common-weales are due by the Law of Nations as a matter inherent to their Prerogatiues because they are absolute Commanders in their Harbours Hauens and Ports where commodities are exported and imported euery Merchant is bound to take notice thereof and to obserue the same according to the ordinances and proceedings vsed therein in all countries respectiuely to auoid the danger of the losse and forfeiture of his commodities and to make a true calculation how to buy and sell to profit obseruing how much vpon the hundreth pounds in value of his commodities rated by the orders of diuers countries the same amounteth vnto and to adde the
1500 Markes of Gold of eight ounces 1500 Markes of Pearles 1 Chest Emeraulds From Mexico For the King 1900 thousand Pesos of Siluer 1100 Markes of Gold For particular persons 2 millions in Siluer 64 thousand Hides 25 thousand ll Indico From Santo Domingo Island 35 thousand Hides 900 Chest Sugar of 1000 ll weight 22 thousand Kintals of Ginger 13 thousand Kintals of Logwood 50 Kintals of Salsaparilla 48 Kintals of Caniafistula 64 Roues of Cottonwooll All the Gold and Siluer was valued at thirteene millions and all the commodities at three millions whereof the King had twelue millions and one halfe De claro wherewith we conclude this Chapter of the Mines Royall and are moued to write also of other Mines and Minerals contrarie to our first intention but briefely as followeth * ⁎ * CHAP. III. Of Mines and Mineralls THe next in order to be treated of are Tin Mines which are but few in number in all countries Tin Mines and in Germanie onely found somewhat plentifull but the Tin is blackish and corrupt so that our English Tin in Deuonshire and Cornewall is the only Tin of all the World which containeth foure ounces of Gold in a thousand whereof there is some twelue hundreth thousand made yearely It hath been sold for many yeares at an vnder value but his maiestie hath by way of Praeemption aduanced the price thereof which belongeth to the Dukes of Cornewall and consequently vnto the noble Prince of Wales Charles sonne and heire apparant to our soueraigne Lord king Iames. This Praeemption is letten to ferme to certaine Merchants and the gouernment of the Staneries with all the good orders obserued therein and the coynage of Tin to demonstrate the goodnesse is profitable to the kingdome and deserueth great commendation as is alreadie noted Lead Mines Leade Mines are found in all cold countries especially in Germanie in the dukedome of Brown●wike but it is blacke of colour and vntill it be refined it is vnseruiceable and consequently not vendible The old Duke had almost made a wall abo●t the citie of the sowes and pigges of Leade vntill our Leade became deere and scant and that an Antuerpian did teach them how to refine their Leade in taking away the cobble which is like vnto a knot in a peece of timber which made the Leade brittle and by his meanes all the Dukes Leade was sold in Italie Spaine and other places in France and elsewhere Scotland and Ireland haue many Leade Mines containing also Siluer The Leade Mines of England are scituated in diuers places of the kingdome but most in Darbishire in the hills of Peake Somersetshire and Wales There is great difference in the Ore as hath beene noted There are also many Lead Mines in Richmondshire vnder the countie of Yorke where I went to view them anno 1606 about Arkendale and the new Forest hauing prepared a long Yron boare of eighteene foot long for that purpose Description of many Leade Mines in Yorkshire and there I did obserue within the compasse of ten miles that the scituation of Arkendale i● betwixt two hills the one lying North called Windike and the other South-West called Moldersey adioyning vnto another hill called Pouncy lying West from Moldersey all belonging vnto the King and by lease vnto sir Iohn Maillorie knight There are also adioyning vnto it certaine other hills where lead Mines are as Swailedale where my lord Wharton hath his workes also Readhurst Cocka and Fellind being East from Wyndecke The Mines of Arkendale haue neuer been wrought to any purpose There is but three smelting cottages which do feed vpon the poore people and inhabitants thereabouts which at their leasure seeke for Lead Ore vpon sufferance and bring the same to the melting places where they fell the same for 20 or 24 ss the load giuing to the owners three or foure parts in ten as they can agree and one tenth to the Parson or Vicar of the Parish or Chappell A loade of Ore with them is as much as foure or fiue horses can conueniently carrie which by computation is some ten hundreth weight and is also deliuered by a measure called Load foure of these Loads will make a Fother of Lead of twentie hundreth their weight being 120 ll to the hundreth London weight so one hundreth of Lead Ore maketh but 30 ll of Lead which commeth to passe for that their manner of melting is by foot-blast and small furnaces with wood and charcoale Foolish maner of melting casting the Ore of Lead betweene them in small peeces and so still augmenting their melting which can yeeld but little the heat of the fire being choaked with the fewel and drosse of the Lead whereas flame is the greatest meane of melting of all mettaline Ores which require furnaces to be made accordingly where thirtie six or fortie hundreth may be molten together they melting three or foure hundreth There is no wood to be had but within two miles but sea coale and good peate is neere hand which may serue better cheape for they reckon 7 or 8 ss for the charge of a fother for the melting The Lead being cast into small Piggs of somewhat more than one hundreth weight are brought on horse-backe through Richmond to Burroughbridge being about thirtie miles distant and are conueyed by water to Yorke for 2 ss the hundreth and from Yorke to Hull for other two shillings so that a Fother of Lead with all charges will not stand in three pounds and there is a neerer way by Stockton on the sea-side about twentie and fiue miles which will lessen the said charges Now we are come to Yron mines Yron Mines whereof almost all countries in Europe are prouided which do much differ in goodnesse yet may be vsed according to the seuerall workes whereunto it is imployed as the Sp●nish Yron seruing for Blades not so good for other things England hath great store of Yron Mines for by computation there are aboue eight hundreth furnaces The melting of it by flaming sea coale or Scots coale saueth a great deale of charges There are lately found more Yron Mines in Fraunce which Yron being made into bars is transported into Guinea Binea and other parts vpon the coasts of Africa where it hath continually beene in great estimation and now becommeth so aboundant that their profit is but small of those voyages and so it falleth out at this present for the price of Leade The Yron stone in Wales is found to differ from the Steele stone by meanes whereof a Germane made good Steele in barres Steele stone and also Gad Steele But the patent of sir Baesell Brooke for the making of Steele did hinder the proceedings therein and Germane Steele is best vntill of late that a Frenchman shewing the imperfection of ordinarie Steele caused his maiestie to make void the said patent and to grant another for the making of perfect Steele surpassing in goodnes the Steele of all countries So we find