may receive some detriment which cannot be maintained amidst the contestations which happen in Conferences But if an Ambassador be deputed as Lievtenant to a Prince there indeed such Commissioner is not bound to treat but only with the Prince himself and so it was where the Bishop of Gurgia who was deputed by the Emperor to Pope Julio the Second the Pope commissionated 3 Cardinals to treat with him but the Bishop having notice in what quality he was like to be received commissionated 3 Gentlemen to confer with them excusing himself upon other affairs which afterwards was explained that he came not as a single Ambassador but as a Livetenant to the Emperor to the which Quality he had been received at Rome by the Pope V. The Deputies being assembled their Seats are considerable they having no power to quit any thing of the ranke which their Masters ought to hold and by the Laws of Treaties the first place is at the head or end of the Table if there be one the second is the first on the right hand and the third is the first on the left hand of him that is at the end and if there be many Deputies to one Prince they usually sit at one side to have the more facility to confer together if it be needful VI. Treaties which are made with our Neighbours as Friends are called Treaties of Alliances equal or unequal The equal is either of single Friendship only for the entertainment of Traffique or for aide and succour that of succour is for the Defensive or offensive and sometimes for both with or against all Men or against some certain Princes and Republiques and there Alliances are contracted either from Estate to Estate and for the preservation of the Estates of each other in which case by the death of the Prince they may not be interrupted Or else they are contracted betwixt Prince and Prince and then the death of one suspends till a new Treaty hath confirmed it unless there is a time certain prescribed by the Treaty to the which the Alliance must continue after the death of the Prince or else they are made from an Estate and Prince where the death of the Prince does likewise if not dissolve yet at least suspend till a new Treaty of Confirmation of the precedents although by the Laws of England Rex non intermoritur VII Sometimes Alliances are contracted for an Enterprize and for one effect only in the part which the Allies are interressed and such is generally called League which in England have been sometimes confirmed by Act of Parliament Leagues commonly are offensive but in effect they tend to attempt against some one and in the bottom are lodged Articles of secresie for the Enterprise and such was that of Cambray against the Venetians in which they borrowed the pretext of Religion and the Peace of Christendom VIII The ordinary causes for which Princes and Republiques make Leagues they are either to facilate a Conquest as that that was made between Lewis the 12th and Ferdinand of Arragon for the Realm of Naples Or to ballance the Forces of one that is more mighty in hindering him that he grow not greater but Arms ought not to be taken to diminish such a Neighbours power for that fear is uncertain but prudent Leagues may be made in diminishing their power The English made a Lague to succour the Hollanders not only to ballance the growing opulancy of the Spanish Monarchy but likewise to encrease her own by the Alliance of the Dutch Quid sequitur Again Leagues may be made for the procuring of a general Peace by way of Mediation of their Neighbours in War and such was that League of Union propounded by His now Sacred Majesty and afterwards concluded betwixt him and the States General of the United Provinces for an efficatious Mediation of Peace between France and Spain his Sacred Majesty of Britain having a prospect to what afterwards happened and of a War wherein most inevitably the same must involve the most of the Princes in Christendom in to the affecting of which Peace his Majesty and the States General did obtain a promise from the French King to the Dutch to lay down Arms on condition the Spaniards would formally and solemnly by a Treaty of Peace quit to him all those Places and Forts together with the Chastellenies and their appurtenances which they by force of Armes had taken in or fortified in the then last years Expedition or otherwise that the Spaniard be brought to transfer to the French all their remainder in the Dutchy of Luxemburg or to the County of Burgundy together with Cambray and Cambresis Douay Ayre St. Omers Bergue St. Avinox Fuernes and Lynk with the Bailywicks Chastellenies and all other their dependancies and the French King to restore to the Spaniard all Places Territories which they have by Armes taken since their enterance into Flanders on condition that the States General do reciprocally undertake and secure to the French to prevaile with the Spaniard to consent to the same conditions which once effected would as was hopt initiate the tranquility of and interest not only of of two Warring Crownes but of all other the Princes of Christendom To the effecting of which there were several Articles agreed and likewise it was agreed that if a Peace should happen to be made his Majesty and the States General should become Warranties and a Place left for any other Prince or State to come into the same and who should think it their interest to keep the Peace of Christendom undisturbed and to restore the Low-Countries to their tranquillity there was provision made likewise by the same for the Forces of each of the Warrantees to be used against those that should break and violate the same oblidging them to cease the violence and repair the party injured IX A Defensive League which hath no other benefit but a necessary defence and in the which Mean Estates are in a manner equally interessed last usually longer then an Offensive League which is voluntary and from the which either of the Confederates will easily part when he hath more interest So as in ballancing the interest of the one and the other he that shall find himself accompanied with distrust and an opinion to be irreconciliable to the common Enemy generally proves the most firm in the League The Wisdom Courage Means and Constancy of the Prince or State is to be considered so likewise of the distance of the Places as well in regard of those with whom they unite as of those against whom they make the Leagues Leagues having no other limitation but the end of the Enterprise for which they were made have admitted many large debates in cases of accident For instance if an Enemy shall take the Countrey for the defense whereof the League was made the Question has been whether the Confederates be bound to assist him who hath lost it in the
dissembled or connived at or else the Ambassadour be commanded to depart the Realm and if the crime be cruel and publiquely mischievious the Ambassadors may be sent with Letters of Request to his Master to inflict punishment according to the offence So likewise in the precaution of a great mischief especially publique if there be no other remedy Ambassadors may be apprehended and executed and if they oppose by force of Arms they may be slain In the Bishop of Rosses Case An. 13 Eliz. the question was An Legatus qui rebellionem contra Principem ad quem Legatus concitat Legati Privilegiis gaudeat non ut hostis poenis subjaceat and it was resolved that he had lost the Priviledge of an Ambassador and was subject to punishment nor can Ambassadors be defended by the Law of Nations when they commit any thing against the State or Person of the Prince with whom they reside And why Ambassadors are in safety in their Enemies Countries and are to be spared when they commit offences is not so much for their own or Masters sake but because without them there will never be an end of hostility nor Peace after Wars neither is the Name or Person of an Ambassador so inviolable either in Peace or in time of War but there may be both a convenient time and a good occasion to punish them and this standing with the Laws of Nations VII The Signiory of Venice understanding that certain Traytors who had revealed their Secrets to the Turk were fled for protection into the House of the French Ambassador at Venice sent Officers to search the Ambassador's House but the Ambassador refusing them enterance the Senate commanded certain Cannon to be brought out of the Arsenal to beat down his House which when he saw planted he surrendred up the Traytors 1 The Ambassadors of Tarquins Morte affligendos Romani non judicarunt quanquam visi sunt ut hostium loco essent jus tamen Gentium voluit 2 The State of Rome though in case of most capital crimes exempted the Tribunes of the People from question during the Year of Office 3 The Ambassadors of the Protestants at the Councel of Trent though divulging there the Doctrine of the Church contrary to a Decree there enacted a crime equivalent to Treason yet stood they protected from any punishment It is generally consented by all the Civilians That Legis de jure Gentium indictum est eorum corpora salva sint propter necessitatem Legationis ac ne confundant jura commercii inter Principes 4 Viva the Popes Legates was restrained by Henry the Second for exercising a Power within his Realm not allowed or admitted of by the King in disquiet of the State and forced to swear not to act any thing in praejudicium Regis vel Regni 5 On the other hand it has been answered that they are by the Laws of Nations exempted from Regal Tryal all actions of one so quallified being made the act of his Master or those whom he represents until he or they disadvow and injuries of one Absolute Prince or State to another is factum hostilitatis and not Treason the immunity of whom Civilians collect as they do the rest of their grounds from the practise of the Roman State deducing their Arguments these examples The Fabii Ambassadors from Rome were turn'd safe from the Chades with demand of Justice against them only although they had been taken bearing Arms with the Ethurian their Enemies Titus Liv. 2. Dec. 6 King Edward the Second of England sent amongst others a French Gentleman Ambassador into France the King upon this arraigned him as a Traytor for serving the King of England as Ambassador who was his Enemy but the Queen procured his pardon 7 Henry the Third did the like to one of the Popes Ambassadors his Colleague flying the Realm secretly fearing timens pelli sui as the Records has it Edward the First restrained another of the Popes turbulent Embassadors untill he had as his progenitors had informed the Pope of the fault of his Minister and received satisfaction for the wrongs 8 Henry the Eighth commanded a French Ambassador to depart presently out of the Realm but because he was the professed enemy of the Seat of Rome 9 Lewis de Prat Ambassador for Charles the Fifth was commanded to his house for accusing falsly Cardinal Wolsey to have practised a breach between Henry the Eighth and his Master to make up the amity with the French King 1523. 10 Sir Michael Throgmorton by Charles the Nineth of France was so served for being too busie with the Prince of Condy his faction 11 The Popes Ambassador at Paris was arraigned for practising certain Treasons in France against the King in the Parliament of Paris and was there found guilty and ccommitted to Prison 12 Doctor Man in the Year 1567 was taken from his house at Madrit in Spain and put under a Guard to a straighter Lodging for breeding a scandal as the Condo Teri said in using by Warrant of his place the Religion of his Countrey although he alledged the like permitted to Guzman de Silva their Ambassador in England and to the Turke no less then in Spain 13 Francis the First King of France sent Caesar Trâ—…gosus and Anthony Rincone Ambassadors to the Turk they were surprised by the Armies of Charles the Fifth on the River Poe in Italy and were put to death the French King complained that they were wrongfully murdered but the Emperor justified their death for that the one being a Genois and the other a Milanois and his Subjects feared not to serve the King his Enemy 14 Henry the Eighth being in League with the French and at enmity with the Pope who was in League with the French King and who had sent Cardinal Poole to the French King of whom King Henry demanded the Cardinal being his Subject and attainted of Treason sed non praevaluit 15 Samuel Pelagii a Subject to the King of Morocco pretended that he was an Ambassador sent unto the States General of the United Provinces he came to them and accordingly they did treat with him afterwards he departed and being upon the Sea he did take and spoil a Spanish Ship and then came into England the Spanish Ambassador here having received intelligence of the spoliation caused his Person to be seized upon intending to proceed against him as against a Pyrat and imprisoned him and upon conference with the Lord Coke Dordridge and other Judges and Civilians they declared their opinions That this Caption of the Spaniards Goods by the Morocco Ambassador the same is not in Judgement of Law a Pyracy in regard it being apparent that the King of Spain and the King of Morocco are enemies and the same was done in open Hostility and therefore in Judgement of Law could not be called Spoliatio sed legalis Captio and a Case out of 2 R. 3. fo 2.
in his Chariot adorned and crowned with the Victorious Laurel the Senators with the best of the Romans meeting him his Souldiers especially those who by their valoor had purchast Coronets Chains and other Ensigns of reward for their conduct and courage following him but what alas could these to the more sober represent any other but horror since the centers from whence the lines were drawn could afford nothing but death slaughter and desolation on those who had the Souls and Faces of Men and if it were possible that that Blood which by their Commissions was drawn from the sides of Mankind and for which they made those Triumphs could have been brought to Rome the same was capable of making of a Source great as their Tiber but Policy had need of all its Stratagems to confound the Judgement of a Souldier by excessive Praises Recompenses and Triumphs that so the opinion of wounds and wooden-legs might raise in him a greater esteem of himself then if he had an entire body To allure others something also must be found out handsomly to cover wounds and affrightments of death and without this Caesar in his Triumph with all his Garlands and Musick would look but like a victime but what sorrow of heart is it to see passionate Man a ray of Divinity and the joy of Angels scourged thus with his own Scorpions and so fondly to give himself alarums in the midst of his innocent contentments as they of Holland but yesterday in the midst of their traffique and recreations did by the denying His Sacred Majesty his Right even that right the which his Ancestors had with so much glory acquired pul on their heads a War which that mighty Reâ—…publique by their greatest industry and wisedom hath not been yet able to quell the colerickness of War whereby the lustfull heat of so many hearts is redoubled stirs up the lees of Kingdoms and States as a tempest doth weeds and slimy seedment from the bottom to the top of the Sea which afterwards driven to the shoare together with its foam there coverts Pearls and pretious Stones and though the Canon seems mad by its continual firing and the Sword reeking hot by its dayly slaughters yet no good Man doubts but they even they will wheather out those storms in the midst of those mercyless instruments find an inculpatatutela who love justice exercise charity and put their trust in the Great Governour of all things CHAP. XV. Of Salutations by Ships of War and Merchant Men. I. Of salutation how esteem'd by some in this later age II. Of the same pay'd in all ages as an undoubted marke of Soveraignty of this Empire III. Of those Seas where this right is to be pay'd to the King of England's Flag IV. In what manner the King of England holds this Right and by whom to be pay'd V. Of those that shall neglect or refuse to do the same how punisht and dealt withall VI. Where his Majesty of Great Britain's Ships are to strike their Flagg and where not VII Of the saluting of Ports Castles Forts how the same is to be done and on what terms VIII Of Ships of War their saluting their Admiral and Commanders and Chief IX Of Ambassadors Dukes Noblemen and other Persons of quality how to be saluted coming aboard and landing X. The Admirals of any forraign Nation if met withall how to be saluted and answered XI Of the Men of War or Ships of Trade of any foraign Nation saluting his Majestie 's Ship of war how to be answered XII Of the saluting of his Majestie 's own Forts and Castles and when the salute cease XIII Of the objection that seems to be made against the necessity of such Salutations XIV Why Kingdoms and States attributes the effects not the cause of Rights to prescription XVI That Kingdoms and Reipubliques ought not to be disordered for the defect of Right in presumption and the objection in the 13 § answer'd XVII The inconveniency of war and the justifique causes of the same XVIII Of the causes not justifiable in war XIX Of Moderation and the utility of Faith and Peace I. AS reforming Powers in all Ages made it their chiefest work to take down the great Colossues and whatever else might be ombragious in the excrescences of Civile Pompe so we had some in this Age who by a new art of levelling thought nothing could be rightly mended and they planted unless the whole piece ravelled out to the very end and that all intermediate greatness between Kings and them should be crumbled even to the dust where all lying level together as in the first Chaos spades ought even to be put into the hands of those who were heretofore adorned with Scepters all outward tokens of honour and esteem which even from the first institution of Society seemed by an uninterrupted stream to be continued down to posterity even amongst the most barbarous Nations was by them totally deny'd the Hand the Hat the Knee being no other but outward signs of an inward respect being esteemed equal with Idolatry but that unhappy brood to whom whatsoever was crooked seemed streight and what was dark to them appears light are now not to be accounted Men with whom the question may admit of a debate whether Salutation is innocent necessary and praise-worthy since nothing of reason can be found in the foundation of their Religion Honesty or Conscience Therefore this Discourse is directed to Men II. First it is evident by what hath been said that the British Seas before the Roman Conquest ever belonged to the Isle of Great Britain they alwaies claiming and enjoying the sole Dominion and Soveraignty of the same which afterwards accrued to the Romans by Conquest and from them translated with its Empire to the succeeding Saxon Danish and Norman Successors and in all the Reigns of those Princes there was alwaies some markes of Soveraignty pay'd wherein the right of the same was evinc't and acknowledged III. Now those Seas which this Salutation or Duty of the Flagg are to be pay'd are the four circumjacent Seas in which all Vessels whatsoever are to pay that Duty according to the Custom of the same and the Ordinance of King John How far this Right is payable appears in the fourth Article in the Peace made lately between His Majesty and the States General of the United Provinces in these words That whatever Ships or Uessels belonging to the said United Provinces whether Uessels of War or other or whether single or in Flâ—…ts shall mâ—…t in any of the Seas from Cape Finisterre to the middle point of the Land Van Staten in Norway with any Ships or Uessels belonging to his Majesty of Great Britain whether those Ships be single or in great number if they carry his Majesty of Great Britain ' s Flagg or Jack the aforesaid Dutch Uessels or Ships shall strike their Flagg and lower their Top-sail in the same manner and with as much respect as hath at any
there is no Nation in the World more tender and jealous of their honour then the English so none more impatiently tollerate the diminution thereof Hence it was that in all Treaties before almost any thing other was assertained the Dominion of the Sea and stricking the Top-fail was alwaies first provided for In the Year 1653 after the Dutch had measured the length of their Swords with those of this Nation and being sensible of the odds and having by their four Embassadours most humbly besought Peace this very Duty of the Flagg was demanded by the 15th Article in these words That the Ships and Uessels of the said United Provinces as well Men of War as others he they in single Ships or in Fleets meeting at Sea with any of the Ships of this State of England or in their service and wearing the Flagg shall strike the Flagg and lower their Top-sail untill they be passed by and shall likewise submit themselves to be visited if thereto required and perform all other respects due to the said Common Wealth of England to whom the Dominion and Soveraignty of the British Seas belong This was so peremptorily demanded that without the solemn acknowledging of the Soveraignty over the British Seas there was no Peace to be had that as to the acknowledging of the Soveraignty and the Flag they were willing to continue the Antient Custom but that of Visiting was somewhat hard 't is true the latter Clause was by the Usurper waved for reasons standing with his private interest but the first was made absolute by the 13 Article between Him and that Republique and from thence it was transcribed to the 10 Article at White-Hall and afterwards into the 19 Article at Breda and from thence into the 6th Article made last at Westm. and that Clause of searching of each others Ships made reciprocate by the 5 Article made in the Marine Treaty at London but that extends not to Ships of War but only the Ships of Subjects X. By the British Seas in the Article about the Flagg are meant the four Seas and not the Channel only for in the 16 Article they did express what was meant by the British Seas That the Inhabitants and Subjects of the United Provinces map with their Ships and Uessels furnished as Merchant Men fréely use their Navigation sail pass and repass in the Seas of Great Britain and Ireland and the Isles within the same commonly called the British Seas without any wrong or injury to be offered them by the Ships or People of this Common-wealth but on the contrary shall be treated with all love and Friendly offices and may likewise with their Men of War not excéeding such a number as shall be agréed upon sail pass and repass through the said Seas to and from the Countries and Ports beyond them but in case the said States General shall have occasion to pass through the said Seas with a greater number of Men of War they shall give thrée Months notice of their intention to the Common-wealth and obtain their consent for the passing of such a Fléet for preventing of Iealousy and misunderstanding betwixt the States by means thereof The first part of this Article doth plainly set out the extent of the British Seas and that it is not the bare Channel alone that comprehends the same but the four Seas and the same is further explained in the Great Case of Constables where the Dominion of the Queen before the union as to the Seas did extend midway between England and Spain but entirely between England and France for the French never had any right or claim to the British Seas for in the Wars between Edward the First and Philip the Fair all Commerce on both sides being agreed to be free so that to all Merchants whatsoever there should be induciae which were called sufferantia Guerrae and Judges on both sides were appointed to take cognizance of all things done against these Truces and should exercise Judicium secundum Legem Mercatoriam formam sufferantiae it was contained in the first provision of that League that they should defend each others Rights against all others this afterwards occasioned the introducing that Judgement in the same Kings time before those Judges chosen by both the said Princes by the Proctors of the Prelates Nobility and High Admiral of England and all the Cities Towns and Subjects of England c. unto which were joyned the suffrages of the most Maritime Nations as Genoa Catalonia Spain Almain Zeland Holland Freisland Denmark and Norway and divers other Subjects of the Roman Empire against Reginer Grimbald then Admiral of France for that there being Wars between Philip King of France and Guy Earl of Flanders he had taken Merchants upon those Seas in their Voyage to Flanders and despoiled them of their Goods whereas the Kings of England and their Predecessors as they all joyntly do declare and affirm without all controversy beyond the memory of Man have had the Supream Government of the English Seas and the Islands thereof Praesâ—…ribendo scilicet Leges Statuta atque interdicta armorum naviumque alio ac Mercatoriis armamentis instructarum causationes exigendo tutelam praebendo ubicunque opus esset atque alio constituendo quaecunque fuerint necessaria ad pacem jus equitatem conservandam inter omnimodas vates tam exteras quam in Imperio Anglicano comprehensas quae per illud transierint supremam iisdem item fuisse atque esse tutelam merum mixtum Imperium in juredicendo secundam dictas Leges Statuta praescripta interdicta aliisque in rebus quae ad summum Imperium attine in locis adjudicatis By which memorable Record it apparently shewes that the Kings of England have hand istud regimen dominium exclusive of the King of France bordering upon the same Seas and of all other Kings and Princes whatsoever and it was there adjudged that Grimbalds Patent was an usurpation on the King of England's Dominion and he adjudged to make satisfaction or if he proved unable then the King his Master should and that after satisfaction he rendred to punishment And as to the second part of the Articles of giving notice it was but an Act of Common prudence their late unexpected visit which they then gave put the English to some surprise but they facing the Battavian soon made them know that they were as capable of beating them home as they were then daring in coming out and were not to be braved out of a Dominion and Right which their Ancestors had with so much glory acquired and asserted XI By the Article of the Offensive and Defensive League between France and the United Provinces it was agreed That if at any time the Dutch Fleet which were to scoure the French Coasts in the Mediterranean from Pyrats should at any time meet the French the Admiral of the Dutch was to strike his
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.
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
to extream necessity yet it follows not upon that that they who so conformed sinned or did that which was absolutely unlawfull for we well know that reason of State oft calls for Sacrifices where there is no fault to expiate Ostrocisme and Jealousy make away those who are known to deserve most but in strickt right which is the term of this question the just governour ought to look upon them as more unfortunate then faulty CHAP. XIV Of the Naval Military part I. The advantage that Princes have by a good Commander II. The love that naturally proceeds from the Mariners to those that are valiant and generous III. Princes in prudence ought not to listen too much to the complaint against Commanders IV. Of the faults generally considered in Soldiers and Mariners V. Of the punishments that generally wait on such offenders VI. Of Drunkeness Swearing and other such sort of impieties not to be suffered in Fleets VII Spies if lawfull to use them by the Laws of Nations but being deprehended are to suffer death and how they are to be dealt withall by the Laws of England VIII It is not lawfull for a Friend or Neuter to relieve an Enemy and Persons so offending how punisht IX Ships taken as prize the Ship papers and other matters concerning the same are to be preserved X. Of things taken and acquired in War how the right of them becomes vested in the Captors and how that is to be understood by the Law of Arms. XI To steal the Cables or other furniture of the King of England's Ships how punishable at this day XII Ships surrendred and voluntarily surrendred how to be dealt with and whether those that shall resist it if entered by force whether quarter may be refused XIII Ships of War generally ought not to be yielded but if entered or disabled whether they may not accept of a quarter standing with the Oath called Sacramentum Militare XIV Of obeying Orders the same ought to be punctually to be follow'd and if broken though the Act succeeds well whether the same subjects not the actor to punishment XV. of the obligation incumbent on Commanders and Souldiers to behave themselves valiantly and the right of slaying an Enemy where lawfull XVI Ships how oblidged by the Law of Arms for the assistance of one another and of the duty of those that have Fleets under their Convoy XVII An Enemy beaten ought to be pursued and how far it is lawfull to slay such flying with their lives in their hands by the Laws of Arms and how the reeking sword ought to be governed XVIII Persons exempted from the sword by the Laws of Nature Nations Civil and Canon and by the Municipall Laws of some Countries XIX Mutining how esteemed valued and punished at this day by the practise of Armies and by the Laws of England XX. Whether it be lawfull to decoy the Subjects Souldiers or Mariners of an Enemy to forsake his Prince or General and to bring over his Men Ships or Arms and where by Law they may be received and how such deserters may be punished by the Laws of Nations and of England XXI Of Seducers Message Carriers and Decoyers of Souldiers how to be handled by the Law of Arm. XXII Of those that shall disobey or strike their superiour Officers how punishable XXIII Of mutening and those that shall act in the same how punished though they have a just cause of complaint XXIV Of the care incumbent on Commanders and Masters of the Great Ships as in reference to their safety and the punishment of wilfull burning and destroying them XXV Of the general offences at Sea how punished XXVI Court Martials how erected and what operation their Judgements have and upon whom XXVII Judges and Advocates Power as in reference to give an Oath and the Admiral 's power how limited to the punishing of offences XXVIII Of maimed Souldiers and Mariners and the provisions that the Law makes for them at this day XXIX Of Triumphs I. AN Excellent Generall is an evidence of the Fortune of a Prince and the Instrument that occasions the happiness of a Kingdom and therefore when GOD makes choise of a Person to repair the disorders of the World or the good of a particular State then is his care shewed in the furnishing him with necessary Principalls to undertake great matters the thoughts are put in his Soul by that eternall Commander to execute he troubles and confounds his Enemies and leads him as by the hand â—…o Victories and Triumphs And one of the greatest expedients whereof he serves himself for this purpose is to raise unto him excellent Men both in Courage and Conduct to whom he communicates his care and who help him to bear the weight of Affairs Alexander had never conquered Asia or made the Indies to tremble but for Ephestion Parmenio and Clytus Caesar gained many a Bataill by his Lievtenants and the fairest Empire of the World which ambition and evil of the times had divided into 3 parts was reduced under the Dominion of Augustus by the valour of Agrippa Justinian triumphed over Persia and destroyed the Vandalls in Affrica and the Goths in Italy by the aid of Bellisarus and Narcete And it is most certain that Noble Commanders are the Glory of their Princes and happiness of the People on the other hand base cowardly and treacherous Generals are the shame of the one and the dispair of the other II. Hence it is that Souldiers and Mariners draw their lines either of love even to the mouth of Canons with a good Generall or mutiny and hate to the main yard end against one that is bad for to obey them who are not their Soveraigns when they do them hurt when they insult and are cruell in cold blood and base cowardly or treacherous in Bataill is a sad necessity for them and a hard essay of patience yet must they be obeyed and the Souldiers and Mariners must not rebell or repine but submit till the Soveraign redresses the misfortunes III. Again Princes ought not to listen too much to the mutinous demands of the Crew or any others whose ambition watches their ruin whereby to conceive anger against this Commanders for it is easier to purge out the choler and discontent that is got under the hatches then to provide Commanders of Conduct Courage and Faithfulness to govern their Expeditions Bellisarius that most excellent Commander who had no other crime then his Reputation and was not culpable but that he was powerfull having conquered Persia subdued Africa humbled the Goths in Italy lead Kings in Triumph and made appear to Constantinople somewhat of Old Rome an Idea of the Antient Spendor of that proud Reipublique after all his Eminent Services this Great Person is abandoned to Envy a suspition ill grounded distroys the value of so many Services and a simple jealousy of State wipes them out of the memory of his Prince but he rests not there for the demeanor had
hostium dyed in his Captivity if he had made a Will before his being taken Captive yet such a Captive should in favour of such Will and for the upholding of the same be feigned to be dead and in puncto temporis immediately before such his being taken Captive and so by that Legal Fiction of death his Will became firm and valid as if he had really dyed without ever being taken by the Enemy So likewise if one had been made a Slave yet if he had returned out of his Captivity that for the preservation of his Right and Propriety he was feigned as if he had never been absent and was immediately redintigrated into his pristine Estate and Condition IV. Now all these Priviledges and Immunities were introduced by the Laws of Nations for no other reason but that their Captors tempted by so many Immunities might willingly abstain from that cruel rigour of slaying their Prisoner Hence it is That the Captors Dominion is extended to the Children for should such use their highest Right they would not be born but Children that are born before that calamity and were never taken Prisoners are freed from that unhappy state V. Though this Dominion or Right was generally acquired in most Nations yet was not the same a universal Law for amongst the Jews refuge was granted to Servants who fell into that calamity by no fault of their own And the state of Christendome at this day is apparent That Prisoners taken in War do not become perfect Slaves as of old but only remain in the Custody of the Captor till Ransoms are paid whose valuations are generally at the pleasure of the Conqueror yet persons of Eminent Quality as Generals and the like such persons if taken by a common Soldier yet he has no advantake by the same for such a Captive is become Prisoner immediately to that Prince or State under whom the Captor served But if it be the Lot of an Inferior Soldier to become a Prisoner of War he is then become absolutely the Captors to dispose of but he wanting those necessaries in the Field for himself which he ought to provide for his Prisoner commonly waives that Interest and generally yields him up as a Prisoner of War to be disposed of by that Prince or State under whom he served VI. Slavery in Christendome is now become â—…bsolete and in these latter ages the minds of Princes and States having as it were universally agreed to esteem the words Slave Bondmen or Villain barbarous and not to be used and that such as are taken in War between Christian Princes should not become Servants nor be sold or forced to work or otherwise subjected to such servile things but remain till an exchange of Prisoners happen or a Ransom paid as afore Nay the very Turks and Mahomitans at this day generally observe this among themselves not to make Slaves of those of the Mahomitan Religion though taken in War and that which is most to be admired a Christian fallen into that miserable state renouncing his Religion and becoming a Mahomitan immediately upon his Circumcision obtains his Freedom with a Recompence The Cruelty of those Infidels to those unhappy Persons together with the reward of renouncing hath given cause to many a brave Person to become Renegado the which being considered by the Parliament in England they made a provision for such miserable Persons as should be taken by Turkish and Moorish Pyrats VII Though Slavery and Bondage are now become discontinued in most parts of Christendome yet there may be a Servitude which may amount to a labour or suffering equal to that of Captives the which may be justifiable for men either through Poverty and the like may oblige themselves by Contract for maintenance to a Servitude that 's perpetual i. e. for life and so for years but at this day there is no Contract of the Ancestor can oblige his Posterity to an Hereditary Service nor can such as accept those Servants exercise the ancient Right or Dominion over them no nor so much as to use an extraordinary rigour without subjecting themselves to the Law If an Eye or a Tooth had been struck out injuriously by the Hebrew Law Freedom was immediately due and by the Greeks if Servants had been ill treated it was lawful for them to demand a Sale of themselves to others At Rome the Statues became Sanctuaries for Servants to implore the help of the Governours against rigour hunger or any other intollerable injury inflicted by their Masters and even in London at this day Servitude amongst the many Causes as not Inrollment of the Indentures not Instructing in the Art want of necessaries infra aetatem 14 c. Cruelty Hunger Rigour immoderate Correction and the like are Causes sufficient on a Monstrans or Petition to the Lord Mayor and Aldermen to dissolve the Contract though under Hand and Seal and to Decree all or part of the Dowry or some given if any to the Servant and if cruelty hath been in the case to expose the Master to answer dammage to the Party Servant VIII Ulpianus observes after that by the Laws of Nations Servitude came in then followed the benefit of Manumission By the Hebrew Law after the expiration of the time agreed on the Servant was to be manumitted and that not without Gifts like Londons Freedom by the Custom of which the Master is always at the charge of Cloathing and discharging the Chamberlains Fees By the Roman Law every Son was in such subjection to his Father that before he could be released of this subjection and made Free he should by an Imaginary Sale be sold Three times by his natural Father to another man who was called by the Lawyers Pater Fiduciarius that is a Father in Trust and then be bought again by his natural Father and so manumised by him and then he became Free This form of setting Free was by them called Emancipatio Freedom That Roman Darling was to be obtained Three ways 1. By Birth both or at least one of their Parents being Free and such were called Cives Originarii 2. By Gift and Co-optation when the Freedom was bestowed on any Stranger or Nation and they were termed Civitate Donati And so we read that Caesar took in whole Nations into the Freedom Lastly By Manumission which was thus when as the Servant was presented by his Master before the Consul or Praetor the Master laying his hand upon his Servants head used this form of words hunc liberum esse volo and with that turning his Servant round and giving him a Cuff on the Ear he did emittere servum e manu The Praetor laying then a certain Wand or Rod called vindicta upon the Servants head replyed in this manner Dico eum liberum esse more Queritur then the Lictor or Serjeant taking the Wand did strike the Servant on the head and with his hand he struck
H. 5. num 4. Coke 4. Inst. 156. Treaty of Cambray the Confederates of which were Pope Julius the 2d the Emperor King of France Spain and Arragon anno 1558. Vide History Republique of Venic so 87. Sed ut vim pati posse ad vim inferendam jus tribuat ab omne equitatis abhorre Grotius de Jure belli pacis lib. 2. cap. 15. §. 17. League of Union between his Majesty of Britain concluded at the Hague with the States General of the United Northerlands January1â—… 23 anno 1668. But a Defensive War is unjust on his part who gave just cause of war Pontius Samnis after restitution made to the Romans and the author of the breach yeilded up expiatum saith he ex quicquid ex soedere rupto irarum in nos caelestium fuit Satis scio quibuscunque dii cordi suit subigi nos ad necessitatem cedendi res iis non fuisse cordi tam superbi a Romanis foederis expiatioâ—… nem spretam And a little after What more do â—…ow to thee O Roman what to the League what to the Gods the Judges of the League whom shall I bring unto thee to be the Judge of thy anger and of my punishment I refute no people nor private Men. †Anno 1515. Vide Sir Rob. Cocten Remonst of the Treaties of Amity and Marriage An. 1515. vide Sir Robert Cotton Remonstr of Treaties Andrâ—… Mauroâ—…eni Hist. Ven. †If one part hath violated the League the other may depart from it for the several Heads of the League have every one the force of a Condition So Grotius conceives lib. 2. Cap. 13. 〈◊〉 15. Soluti foederis culpam sâ—…stinent non qui deserti ad alios se conferunt sed quicquam jurati promiserant opem re non prâ—…stant Alibi apud eundem si vel tantillum ex dictis pars alterutra traâ—…sgrederetur rupta fore pacta Thucyd. lib. 1. 19 E. 4. Vide Stat. 2. H. 5. cap. 6. Hill 14. Eliz. in the Duke of Norfolk's Case 4. Inst. fo 152. †In fidelitatâ—… feudali dicitur Et si scivero velle te aliquem juste offendere generaliter vel specialiter fuere requisitus meum tibi sicut potero praestabo auxilium Orat. Demosthen de Megalopoli * Nihil intercedi quo minus Samniti populo pacis bellisque liberum arbitrium sit Liv. lib. 8. Grotius de Jure belli ac Pacis lib. 2. c. 15. §. 13. In fidilitate feudali dicitur Et si scivero velle te aliquem juste ostendere inde generaliter vel specialiter fuero requisitus meum tibi sicut potero praestabo auxilium Demosthenes Orat. de Megalopoli Equals cannot directly refuse War nor demand Peace Liv. 3. Polybius in excerptis Legationum 35. VVhen Edw. the 4th was chased out of the Kingdom and Henry the 6th was set up again yet by reason there was incerted into the same these words viz. With the King and Realm that the League did remain perpetual Phil. Comines lib. 3. c. 6. Ulpian Leg. Jure Gentium sect pactum D. pactis Adde qua Helvetiis causantur post mortem Henrici 3. apud Thuanum lib. 97. in An. 1589. Vide insignem locum apud Cambdenum in Anno 1572 ubi de Foedere antiquo Gall. Scotis a Quintus said to Nabis VVe have made no friendship nor society with thee but with Pelops the just and lawfull King of the Lacedemonians b 11 Hen. 7. cap. 1. c 4 E. 4. 1. 5. E. 4. 12. 3 Inst. f. 7. Ed. 4. in An. 1470. Phil. Comines l. 3. c. 6. Reges qui Regnis ex uti sunt cum aliis regni bonis etiam jus legandi perdiderunt Peter Mathew History of France in the Life of Henry the Third Vide Peter Mathews Hist. of France in Vita Hen. 4. In Regno diviso gens una pro tempore quasi duae gentes habentur And Princes are to have an eye to the Power which each Kingdom hath to afford benefit one to the other and not to examine their Titles Andronicus post Rhodius Aristotelem amicitiae inter partes hoc ait proprium ut potentiori plus honoris infermori plus auxilii deferatur in Grotius lib. 1. cap. 3. §. 21. num 2. It is the property of friendship 'twixt unequals that the stronger have more honour and the weaker have more help Proculus adds that such a clause is incerted in the League to signify the one is superior in authority and dignity for both are free but are sub patrocinio non subditione Livy lib. 37. Cicero Offic. 2. Leg. non dubit D. de Cap. The Genoeses having put themselves in the protection of the French King revolted he thereupon changed their conditions into Priviledges to the end it might be in his will to deprive them when he should think fit Vide Cardinal Thuse P. P. â—…oncl 935. This holds as well between Leagues equal 〈◊〉 equal 〈◊〉 de Jure 〈◊〉 ac Pacis liâ—… 1 cap. 3. 〈◊〉 〈◊〉 This hath the same right in Leagues that are equal Nam ut quis ultionem sumat ab eo qui peccavit satis est ut ipse ei qui peccavit subditus non sit Grot. de Jure Beâ—…i lib. 1. cap. 3. §. 21. n. 5. But that proves not any power of commanding for Princes do usually try their causes before Judges of their own choosing 〈◊〉 lib. cap. 3. §. 21. n. 6. Decet eos quâ—… Foederis Principes sant circa suas quidem utilitates nihil praecipâ—… sumere â—…t in communibus rebus curandis emiueresupra caeteros in Orat. Corinthiorum Oldradus Cons. 1. Gregorus Perjurum Deo culpam impingit negligentiâ—… Upon the woâ—…s Eâ—…ing and Euâ—…g to retain the Lâ—…grave of Hesse Famous was the answer of the Carthaginians Senate to the Romans upon the assaulting of Saguntum Ego non privato publicove consilio Saguntum oppugnatum si quaerendum censeo sed utrum jure an injuria nostra enim haec quaestio atque animdversio in Civem nostrum est nostrum an suo fecerit arbitrio vobiscum una disputatio est licuerit ne per soedus fieri Whether Saguntum was assaulted by Private or publique Councel we conceive it not to be made the question but this whether it was assaulted justly or unjustly for to our selves an account is to be given by our Citizens whether it did it of himself or by Commission with you alone this is dispensable whether it were a violation of the League or no Livius lib. 31. †Grotius de Jure Belli ac Pacis lib. 2. ch 15. §. 15. In fide quid senseris non quid dixeris cogitandum Cic. de Offic. 1. In L. non possunt D. de Legibus Vide exemplum in L. cum virum C. de fidei commissis Grotius lib. 2. cap. 16. §. 12. In the Truce that was made between Edw. the 4th and Lewis the 11th there was like provision made for Charles Duke of Burgundy but he refused and concluded a