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
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
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.
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
the breaking the peace of the Port. VIII In the granting of such private Commissions there is alwaies great care to be had and taken by caution to preserve the leagues of our Allies Neuters and Friends according to their various and several Treaties and therefore at this day by the late Treaty between His Majesty and the States of Holland at London before any Privateer or Caper can receive Commission the Commander is oblidged to enter before a competent Judge good and sufficient security by able and responsible Men who have no part or interest in such Ship in 1500 l. Sterling or 15500 Gilders and when they have above one hundred and fifty Men then in 3000 l. or 33000 Gilders that they will give full satisfaction for any dammage or injuries which they shall commit in their courses at Sea contrary to that Treaty or any other Treaty made between His Majesty and that State and upon pain of Revocation and annullity of their Commissions and for answering of such dammage or injuries as they shall do the Ship is made lyable IX If a Suit be commenced between the Captor of a Prise and the Claimer and there is a Sentence or a Decree given for the party reclaiming such Sentence or Decree upon security given shall be put in execution not withstanding the Appeal made by him that took the prise which shall not be observed in case the Sentence shall be given against the Claimers if torture cruelty or barbarous usage happens after a caption to be done to the persons taken in the prise the same shall ipso facto discharge such a prise although she was lawful and the Captains shall loose their Commissions and both they and the offenders be subjected to punishment X. Such sort of instruments having made a caption of Ships bound for an enemy from Nations Neuter or in amity with both the warring States the lading in order to be made prise is reduced to these 3 several heads First those Goods that are fit to be used in War under which are included Powder Shot Guns Pikes Swords and all other instruments and provisions of armature fit to be used in the Feild or at Sea The second are those things that may be used in time of War and out of War as Money Corn Victuals Ships and the like And the last are those Goods that are only fit for luxury and pleasure XI The first are accounted prise without controversy He is to be accounted an enemy that supplyes an enemy with things necessary for the War The second is to be governed according to the State and condition of the War for if a Prince cannot well defend himself or endammage the enemy without intercepting of such things necessity will then give a right to the condemnation And so Queen Elizabeth did the Hansiatique Fleet taken laden with Corn for Lisbon upon consideration of the state of the War the same became prise The last become free according to that of Seneea I will not help him to Money to pay his Guards but if he shall desire Marbles and Robes such things hurt not others only they minister to his luxury Souldiers and Armes I will not supply him with if he shall seek for Players and recreations to soften his fierceness I will gladly 〈◊〉 to him Ships of War I would not send him but such 〈◊〉 for pleasure and ostentation of Princes sporting in the Sâ—… I will not deny XII If a Privateer take a Ship laden wholly with counterband Goods both Ships and Goods may be subjected and made prise But if part be prohibited Goods and the other part are not prohibited but such as according to the necessity of the War shall be so deemed the same may draw a consequential condemnation of Ships as well as lading If part of the lading are prohibited and the other part are meerly luxurious and for pleasure only the Goods prohibited become prise and the Ships and the remainder become free and not subject to infection XIII If such Ships shall be attaqued in order to an examination and shall refuse they may be assaulted like a house supposed to have Theeves or Pyrats in it refuses to yeild up their Persons may be broke up by the Officer and the Persons resisters may be slain XIV But if any of these Privateers wilfully commit any spoil depradations or any other injuries either on the Ships of our Friends or Neuters or on the Ships or Goods of our own Subjects they will notwithstanding they are not in pay be subjected in some cases to death and other punishments according to the demerits of their crimes and perhaps may subject their Vessel to forfeiture And though by the Law of Nature the Goods of enemies are to be spoiled as well as their Persons slain yet some Goods and things seem exempted and ought not to be spoiled and therefore it is not lawful to land on the territories of our enemies to spoil places dedicated to God though Pomponius observes when Places are taken by the enemy all things cease to be Sacred the reason given is because the things which are callâ—…d sacred yet are they not indeed exempted from humane uses but are publique The Townsmen saith Tacitus opening their gates submitted themselves and all they had to the Romanes themselves were spared the Town was fired Pompey entered the Temple by the right of Victory not as a suppliant but as a Conqueror and though that priviledge may seem right by the Law of War to a Soveraign or a General that intends a Conquest yet that power may not seem devolved to him whose Commission is cautionally to endammage the enemy only as in reference to his commerce and provisions of enabling them to withstand the War Certainly that conquest is poor whose Trophies and Triumphs are made up with Roofs Pillars Posts Pulpits and Pews and the spoil of Agriculture Hence it is that at this day the King of France in Germany and Holland accepts of Contributions by which the Cities and Churches are not olny spared but even the Country-men plough and sow as quietly as if there were no Armies in their Territories at all XV. Most certain those sorts of Capers or Privateers being Instruments found out but of latter Ages and it s well known by whom it were well they were restrained by consent of all Princes since all good Men account them but one remove from a Pyrat who without any respect to the cause or having any injury done them or so much as hired for the service spoil Men and Goods making even a trade and calling of it a midst the calamities of a War and driving a commerce and mart with the spoil and that with as much peace and content as if they had never heard of tears blood wounds or death or any such thing such to expose their lives against Ships of the like kind were both honourable and just or those that should aid
the enemy with Goodsprohibited as afore such prises were possessions most noble but the Goods Ships and lives of the innocent peaceable traders to be exposed to rapine and spoil renders them worse then the Roman Lictors by how much 't is to kill without cause Heads Men executing the guilty they the guiltless It was a high necessity that enforced the English to commissionate such the number of her then enemies covering the Sea like the Aegyptian locusts it were well they were rejected by consent or if allow'd off not subject to Quarter when taken by Ships of War A trade that St. Paul never heard of when he said Who goeth to War at his own charge CHAP. IV. Of Pyracy I. Pyrats what II. Of the duty incumbent on Princes and States as in reference to such and whether lyable for the dammages they commit III. Pyrats where they hold a so ciety how the is same esteemed in Law and of equality held by them IV. Where such may obtain the right of legation V. Ships where lyable for the redemption of the Master who remains as a pledge for the freedom of the Ship and lading and where not VI. An oath given for the discharge of a Ship from Pyrats to pay them a summe whether the same ought to be performed VII Forraigners spoiled by English Pyrats may pâ—…rsue for Justice within the Stat. of 28 H. 8. VIII Where the subjects of a Forraign Nation committing Pyracy may be punished for the same and IX Pyracy committed by the subjects of a Nation in enmity with the Crown of England whether the same is Pyracy or otherwise punishable X. Pyracy committed in the British Seas properly punishable by the Crown of England and not otherwise XI Pyracy committed on the Ocean where the Pyrats may be executed by the Laws of Nature XII Pyrats overcome in the attempt where the Captors may execute them without any Tryall or Judgement XIII Pyrats attempting to rob commit a murder whether all are principal or only the slayer and the rest accessories XIV If the subjects of one Forraign Nation rob another and bring the booty into England whether the party injured may proceed Criminaliter for punishment and Civiliter for restitution XV. Pyrat takes only Men and no part of the lading whether the same be Pyracy XVI Where a Master may commit Pyracy of those things that are committed to his charge and where otherwise XVII Where Pyracy may be though there be nothing taken and where Goods are taken out of a Ship and no body in it XVIII The Captain and Crew of a Vessel that have a Commission of reprise commit Pyracy whether he that procured the same and imployed them ought to answer the damage XIX Of Goods taken and retaken by a Friend whether the property of the prise is altered XX. Of Restitution made of Goods taken and retaken from a Pyrat by the Law Maritime XXI Of Restitution frustrated by the Common Law XXII Of Pyracy as in reference to matterscriminal and how punishable this day by the Laws in England XXIII How the Stat. of 28 H. 8. operates as in reference to Pyracies XXIV Whether depradation in Ports within the Realm remains Robbery at the Common Law or Pyracy by the Law Maritime XXV Where benefit of Clergy is allowable to Pyrats and where not and whether by the pardon of all selonies Pyracy is included XXVI Whether attainder for Pyracy works a corruption of Blood and forfieture of Lands XXVII Goods taken at Sea and brought to Land the parties may be indicted upon the Stat. of 28 H. 8. cap. 15. XXVIII Where the Admiralty claiming with an original or a concurrent Jurisdiction the Common Law will not intermeddle XXIX How satisfaction of old was repaired to persons robbed and how the offenders were punished I. A Pyrat is a Sea Thief or Hostis humani generis who for to enrich himself either by surprise or open force sets upon Merchants and others trading by Sea ever spoiling their lading if by any possibility they can get the mastery sometimes bereaving them of their lives and sinking of their Ships the actors wherein Tully calls Enemies to all with whom neither Faith nor Oath is to be kept II. By the Laws of Nature Princes and States are responsible for their neglect if they do not provide Ships of War and other remedies for the restraining of these sort of Robbers but how far they are bound either by the Civil Law or Common Law of this Kingdom may be some question for it is agreed they are not the cause of the unjust spoil that is committed by them nor do they partake in any part of the plunder but if a Prince or State should send forth Ships of War or Commissions for reprise and those instead of taking prises from the Enemy turn Pyrats and spoil the subjects of other Friends there has been some doubt whether they ought not to make satisfaction to the parties injured in case the offenders should prove unable surely there is no more reason for this latter then the first for seeing Princes and States may give all their subjects power to spoil the Enemy nor is such a Permission any cause why dammage was done to our Friends when even private Men without any such Permission might send forth Ships of War besides it is impossible that Princes or States should foresee whether they would prove such or not nor can it be avoided but we must imploy such otherwise no Army or Fleet could be prepared neither are Kings to be accused if their Souldiers or Mariners wrong their Confederates contrary to their commands though they are oblidged to punish and yeild up the offenders and to see that legal reparation be made out of the Estate of the Pyrats If Letters of Marque or Reprizal be granted out to a Merchant and he furnishes out a Ship with a Captain and Mariners and they instead of taking the Goods or Ships of that Nation against whom their Commission is awarded take the Ship and Goods of a Friend this is Pyracy and if the Ships arrive in * England or in any other of His Majesties Dominions the same shall be seized and the owners for ever loose their Vessel From hence it is that Princes and States are very cautious upon this we call Jure Belli privati how they engage themselves or those who seek reparation for wrongs before received for the person injured governs not the action but devolves the power to some other hired for that particular use whose Law is no more then this There is most right where is most pay or prize Unhappy state of Man whose support and living is maintained only by exposing himself to death a Calling that nothing can make it honest but the highest necessity or pious charity And therefore those that issue forth such sort of Commissions generally take caution for their returning within a convenient time and not to wander in that unhappy condition
not possible to be governed and protected but that proceeds from a defect in Mankind for Deserts though part of Kingdoms are impossible to be governed and protected witness the many Deserts of Africk and the immense vastities of the New World VI. As it is a gift of God that a Land by the Laws and publique power be ruled protected and Governed so the same happens to the Sea and those are deceived by a gross equivocation who aver that the Land by reason of its stability ought to be subjected but not the Sea for being an unconstant Element no more then Air forasmuch as they intend by the Sea and the Air all the parts of the fluid Elements it is a most certain thing that they cannot be brought under subjection and Government because whilst a Man serves himself with any one part of them the other escapes out of his power but this chanceth also to Rivers which cannot be detained but one is said to rule over a Sea or River it is understood not of the Element but of the Scite where they are placed the Water of the Adriatique and British Seas continually runs out thereof and yet is the same Sea as the Tiber Poe Rhine Thames or Severne are the same Rivers they were a thousand years since and this is that that is subject to Princes by way of Protection and Government Again it would seem ridiculous if any Man would assert that the Sea ought to be left without Protection so that any one might do therein well or ill robbing spoiling and making it unnavigable or whatsoever should seem fitting in their eyes from all which it is apparent that the Sea ought to be governed by those by whom it most properly appertains by the Divine disposition VII When Julius Caesar first undertook the Invasion of this Isle he summoned the Neighbouring Galls to inform him of the Shores Ports Havens and other things convenient that might acelerate his intended Conquest but from them nothing could be had they answering All commerce and traffick and visiting their Ports was interdicted to all Nations before license had nor could any but Merchants visit the same and then had they places assigned them whether they should come nor was this Dominion that the Britains then used commanded without a Naval Force the sight of which when Caesar saw he preferred them before those of the Romans for upon that occasion it was that Caesar having seen those Auxiliary Squadrons which the Britains sent the Gauls in their Expeditions against the Romans took occasion to find out that warlike people whose bare auxiliary aide shook the Flower of the Roman Squadrons And when the Romans became Conqueroues of this Isle the same Right or Dominion was during all their time supported and maintained when they sailed round their new atcheived Conquests in the time of Domitian Agricola giving terrour to all the neighbouring Nations But when that Mighty Empire became subject to fate and this Nation by the continual supply of Men which went out of the Kingdom to fill up the contingencies of the Roman Legions we became at last so enfeebled as to render us a prey to the Saxon which Empire when having settled peace with their Danish Neighbours and quieted their own home bred quarrells and having reduced the several petty Kingdoms of their Heptarchy under one Diadem they forgot not to assume their antient Right and Dominion of the Seas as did the most noble Edgar who kept no less a number then 400 Sail of Ships to vindicate and ascertain his Dominion giving protection to the peaceable and punishment to the offender nor did his Successors Etheldred Canutus Edmund and those that followed of the Danish Race any waies wave relinquish or loose that Royalty but obsequiously maintained the same down to the Conqueror and from him since for some upwards of 12 hundred years in a quiet and peaceable possession To mention the Antient Commissions and exercise of this Soveraign power Safe-conducts Writs of seizure Arrests Records of Grants and Licences to pass through the Sea and to fish Parliament Rolls and the like would make a Volum in a word if Right of Prescription succession of inheritance continual claim matter of fact consent of History and Confessions even from the mouths and pens of Adversaries be of any moment to the asserting of a Tittle his Sacred Majesty may be presumed to have as good a Tittle to that as the most absolutest Monarch this day on Earth hath to what ever he can claim or does enjoy VIII Now the duty of the Flagg is no more but a consecutive acknowledging of that Right and Dominion of the British Seas not as a bare Honorary Salute or Ceremony but as an absolute sign of the right and Soveraignty of those Seas where they are oblidged to strike Sail are in him to whose Flagg the Vail and pay that duty to and in substance is no more but that the King grants a generall licence for Ships to pass through his Seas that are his Friends paying that obeysance and duty like those services when Lords grant out Estates reserving a Rose or pepper Corn the value of which is not regarded but the rememberance and acknowledging their Benefactors right and Dominion That this hath been an Antient Custom alwaies waiting on that Soveraignty appears by that memorable Record upwards of 400 years since made where it is declared by King John what the Antient Custom was in these words That if a Lievtenant in any Uoyage being ordained by Common Councel of the Kingdom do encounter upon the Sea any Ships or Uessels laden or unladen that will not strike vail and their Bonets at the Commandment of the Lievtenant of the King but will fight against them of the Fleet that if they can be taken they be reputed as Enemies and their Ships Uessels and Goods taken and forfeited as the Goods of Enemies although the Masters or Possessors of the same would come afterwards and alledge that they are the Ships Uessels and Goods of those that are Friends to our Lord the King and that the Common People in the same be chastised by imprisonment of their Bodyes for their Rebellion by discretion Thus this Immemorial Custom was by that prudent Prince affirmed the which hath been alwaies before and ever since without interruption by all Nations constantly pay'd to the Ships of War bearing the Royall Standard and other of his Majesties Ships wearing his Colours and Ensigns of Service he knowing that undoubted Maxim of State that Kingdoms are preserved by reputation which is as well their strongest support in Peace as their chiefest safety in time of War when once they grow dispised they are either subject to forreign invasions or domestique troubles the which if possible that Prince would have prevented but he lived when those Celestial Bodies which govern the action of Princes seem to frown on the most Virtuous and Wise. IX And as
been too gentle if cruelty had not been added to ingratitude they deprive him of all his Honours they rob him of all his Fortune they take from him the use of the Day and Light they put out his Eyes and reduce him to the company of Rogues and the miserable Bellisarius demands a charity even that Bellisarius the Chiefest General of his Age and the Greatest Ornament of the Empire who after so many Victories and Conquests accompanied with so high and cleer a Virtue and in the midst of Christendom reduced to so abject and low a misery Nor was this cruel and hasty reckoning of Justinian let slip without a cruel payment for Narces who was as well a Successor in merit as in Authority to Bellisarius who having notice of a disdain conceived likewise against him upon a single complaint resolved not to expose himself as a Sacrifice to their malice and therefore better to shake off the yoak then stay to be oppressed soon spoiled the affairs of Justinian for the Goths revolted and Fortune would not forbear to be of the party which Narces Follow'd nor to find the Barbarian where so Brave a Captain was engaged Therefore not one or many faults are to be listened to against Commanders but patiently heard and redressed but not to disgrace or loose them for such having committed a fault yet being admonished by love may endeavour by future Services to make recompence by some Noble Exploit but disgraced become Instruments often of danger and ruin to their Superiors IV. Souldiers and Mariners faults are either proper to themselves or common with others Those are common with others which other Men fall into and are corrected with like ordinary proceeding as other crimes of like nature as Man-slaughter Theft Adultery and such like Those are proper which do properly appertain to the Naval Military part and are punished by some unusuall or extraordinary punishment As are these not to appear at the over musters or calling over the Ship to serve under him he ought not to serve to vage or wander long from a Ship-board although he return of his own accord to forsake his Fleet Squadron Ship Captain Commander or Officer to leave his standing to fly over to the Enemy to betray the Fleet Squadron or Ship to be disobedient to superior Affairs to loose or sell his Arms or steal another Man's to be negligent in his Officer's command or in his watch to make a mutiny to fly first out of the Battle and the like which are very frequently set forth in the Titles of the Digest and Code of Military affairs and other like Titles which accompany them Arrian who wrote the Life of Alexander the Great observes Every thing is counted an offence in a Souldier which is done contrary to the common Discipline as to be negligent to be stubborn to be slothfull V. The punishment wherewith Souldiers and Mariners are corrected are those corporall punishments or a pecuniary mulct or injunction of some service to be done or a motion or removing out of their Places and sending away with shame By Capital punishment is understood for the most part death or at least beating with Cat with nine tayls as they commonly term it Ducking Wooden-horse Gauntlet and such like unless happily it be pardoned either for the unskilfulness of the Mariner or Souldier or the mutiny of the Crew or Company being thereto drawn by Wine Wantonness or for the commiseration or pitty of the Wife and Children of the party offending all which is left to the discretion of the Lord Admiral and others the Supream Commanders or Captains VI. It is necessary that in Armies and Fleets all manner of impiety should be prohibited especially that of Swearing and Cursing for such are sins so foolish that they unawares help Men into damnation rendering Men worse then beasts by how much the more they court that vanity of sin without any of the appendant allurements which other vitious actions are accompanied with the same in the end teaching Men to disavow GOD in their Discourse and actions by their intemperate and inconsiderate invoking him in their Oaths Against such as also against those that shall give themselves up to Cursing Execrations Drunkenness Uncleanness or other scandalous actions in derogation of God's Honour and corruption of good manners fynes and Imprisonment or such other punishment may be inflicted on them by a Court Marshall which is now reduced to the forfeiture of one day's pay but for drunkenness the same extends not to Commanders or other Commission and Warrant-Officers for they upon conviction before the Admiral shall be rendred uncapable of their Command And a Lyar convicted a Ship-board shall be hoisted upon the main-stay with 4 Braces having a Broom and Shovel tyed to his back where he shall continue an hour every Man crying A lyar a lyar and a week following he shall clean the Ship 's head and sides without board according to the antient practise of the Navy if he receives greater Wages then for an able Sea-Men then half a day's pay VI. By the Laws of Nations Spies may be sent to survey the Enemy's Force Fleet Station or Squadron and make discovery of whatsoever may give advantage to the Persons sending So Moses and Joshua did into the Holy Land on the other hand being deprehended they are to be put to death as Apian saith and by the Laws of England if any Officer Souldier or Mariner in actual Service and in pay in his Majesties Fleet or any other Person in the same shall give hold or entertain any intelligence to or with any King Prince or State being enemy to or any Person in Rebellion against his Majesties his Heirs and Successors without leave or authority from the King Admiral Vice-Admiral or Officers in chief of any Squadron they are to suffer death Now the bare receipt of a Letter or Message from an Enemy will not make a Man subject to the penalty of this Article and therefore the subsequent Article explains the precedent in which it is provided that if any inferiour Officer Mariner or Souldier shall receive any Letter or Message from any King Forreign Prince State or Potentate being an Enemy or on their behalf and if such Person does not reveal the same within 12 hours having opportunity so to do and acquaint the Superior Commander with it such Person is to suffer death so likewise if such Superior Officer or Mariner being acquainted therewith by an inferior Officer Mariner or other such Superiour Officero Cmmander or Mariner in his own Person receiving a Letter or Message from any such Enemy or Rebell and shall not in convenient time reveal the same to the Admiral Vice-Admiral or Commander of the Squadron shall suffer the like pain of death or such punishment as a Court Marshal shall inflict Now Spies are put to death sometimes justly by those that manifestly have a just cause of Warring by
time or in any place been formerly practised towards any Ships of his Majesty of Great Britain or his Predecessors by any Ships of the States General or their Predecessors IV. Now his Majesty holds not this Salutation or Respect by virtue of the League or of the Article but as the same is a Right inherent to the Empire of Great Britain and therefore in the first part of the Article it is declared in these words That the aforesaid States General of the Unithed Provinees in due acknowledoment on their part of the King of Great Britain ' s RIGHT to have his Flagg respected in the Seas hereafter mentioned shall and do declare and agree Now this Right extends and subjects all Nations whatsoever that shall pass through those Seas and between those places meeting with any of his Majesty's Ships of War bearing his Flagg Jack or Cognizance of Service to strike their Top-sail and take in their Flagg in acknowledgement of His Majesty's Soveraignty in those Seas and if any shall refuse to do it oroffer to resist they may be compelled vis manu forti for his Majesty's Honour is by no means to receive the least diminition V. If therefore any of his Majesty's Subjects should be so negligent or forgetful to pay that obeissance when it may be done without losse of the Voyage they are to be seized on and brought to the Flagg to answer the contempt or else the Commander may remit the Name of the Ship Commander or Master as also the place from whence and the Port to which she shall be bound to the Admiral however before she is dismist she must pay the charge of the shot that her negligence or forgetfulness occasioned and afterwards may be indicted for the same and severely punished VI. In His Majesty's Seas none of his Ships of War are to strike to any and that in no other part no Ship of His Majesty is to strike her Flagg or Top-sail to any Forraigner unless such forraign Ship shall have first struck or at the same time have strike her Flagg or Top-sail to his Majesty's Ships VII But if any of the King of Englands Ships of War shall enter into the Harbour of any Forraign Prince or Sate or into the râ—…ade within shot of Canon of some Fort or Castle yet such respect must be pay'd as is usually there expected and then the Commander is to send a shore to inform himself what return they will make to this Salute and that if he hath received good assurance that his Majesty's Ships shall be answer'd Gun for Gun the Port is to be saluted as is usuall but without assurance of being answered by an equal number of Guns the Port is not to be saluted And yet in that very respect before the Port is to be saluted the Captain ought to inform himself how Flaggs of the same quality with that he carrys of other Princes have been saluted there the which is peremptorily to be insisted on to be saluted with as great respect and advantage as any Flagg of the same quality with the Captains of any other Prince hath been saluted in that Place VIII A Captain of a Ship of the second rate being neither Admirall Vice-Admiral nor Reer-Admiral at his first coming and saluting his Admiral or Commander in chief is to give 11 Pieces his Vice-Admiral nine and his Reer-Admiral seven and the other proportionably less by two according to their Rancks but the Commander or Captain of a Ship is not to salute his Admiral or Commander in chief after he hath done it once except he hath been absent from the Flagg two Months XI When a Ship of the second rate shall carry any Ambassador Duke or Nobleman at his coming aboard he is to give eleven Pieces and at his landing fifteen and when he shall carry a Knight Lady or Gentleman of Quality at their coming aboard he is to give seven and at the landing eleven and the other Ships are to give less by two according to their Rancks and number of Ordinance X. When an Admiral of any forraign Nation is met with he is to be answered with the like number by all the Ships he shall salute if a Vice-Admiral the Admiral is to answer him with twelve less but the Vice-Admiral and Reer-Admiral and as many of the rest as he shall salute shall give him the like number if a Reer-Admiral then the Admiral and Vice-Admiral to answer him with two less but if he shall salute the Reer-Admiral or any other they are to answer him in the like number XI When a Man of War or Merchant-Man of another Nation or of our own salute any of the King's Ships he is to be answer'd by two less XII When any of the Captains of his Majesty's Ships shall have occasion to salute any of the King's Castles he is to give two Guns less then they are directed to give upon saluting their Admiral or Commander in chief as aforesaid But this extends only in time of Peace for if War is begun no Guns ought to be fired in Salutes unless to the Ships or Castles of some forraign Prince or State in Amity XIII Those duties or obligations being laid on Commanders they consist of two parts the one is that antient prescription which the Crown of England claims by virtue of the Soveraignty of that Empire the other is but that respect which is pay'd as visible marks of Honour and Esteem either to Kingdoms or Persons publique or private to whom these several Commands are to be observed and yet in these which are both innocent and harmless of themselves yet we wont not those who being empty of all that may be called good want not malice to start up words wherefore should the lives of Men even Christian Men be exposed to death and slaughter for shaddows as they call them the right of salutation or Complement being no other in their opinion XIV Admitting therefore that the evidence of original Compacts and Rights stand at such remote distances from us that they are hardly discernable and that the principal of Civil things as well as Natural is sought for in a Chaos or confusion so that the evidence of antient facts vestigia nulla retrorsum there being no infallible markes of their preexistence one step doth so confound and obliterate another and that time it self is but an imagination of our own and intentional not a reall measure for actions which pass away concomitantly with that measure of time in which they were done for which reason we talk of antient things but as blind Men do of Colours Notwithstanding prescription is supposed by most to hold out such an evidence that as they say it ought to silence all Counterpleas in all Tribunals and by the present allowance which is indulged to it it either proves a good or cleans a vitiated title and this Prerogative in the Civil constitution of the World hath this Power in the Civil constitution
E. 4. 14. 13. E. 4. 9. 22. E. 3. f. 23. 2. R. 3. f. 2. 27. E. 3. c. 13. 31. H. 6. c. 4. which gives Restitution by the Chancellor and one Judge and by the Chancellor alone Hujusmodires non tam capta quam recepta intelligitur per D. Leg. Pomponius per Leg. in Bellâ—… Par. si quis sâ—… vum in pr. de Cap. pâ—…st Per Leg. postliminium Par. Postliminio de Capt. postli Boyce and Cole and Claxton Hill 26 27. Car. 2. in B. R. Restitution made formerly by a French-Man who had regained an English prize out of the hands of a Dutch-Man of War Anno 1665 1666. Bell. Angl. cum Batav This is Jus belli in Republica maxime conservanda sunt Jura belli Reg. f. 129. Arresi fact super bonis Meroator Alieâ—…ig Some of old have held 〈◊〉 Clericus Agricola Mercator tempore belli utroque collat commutet pace fruuntur Co. 2. Inst. f. 58. Consul Maris c. 273. Hostis sit ille qui intra praesidia ejus sunt Let him be our Enemy and they that are with in his Guards Liv. lib. 37 alibi passim Gregor lib. 9. Romani nos honestissimus eas atque justissimus credimus possessiones quas Belli Lege captas habemus neque verâ—… induci possimus ut stulta facilitate deleamus virtute monumenta si eas illis reddamus quibus semel perierunt imo vero talos possessiones non tantum cum his qui non vivunt civibus nostris communicandis sed posteris relinquendas censemus tantum abest ut partu relinquendo in nos ipsos ea constituamus quae in Hostes constitui solent Titus Largus his opinion in the Senate of Restitution VVe Romans believe those possessions to be most honorable and just which we have taken by the Law of VVar nor can we be induc'd by a foolish facility to part with the monuments of our Valour and restore them to those that were not able to keep them nor do we judge such possessions to be communicated only to our Country Men now living but to be left to our Posterity So far are we from relinquishing what we have got and dealing with our selves as if we were our own Enemies De Veij idem in Romulo narrat Pluterâ—…us 〈◊〉 Hist. 5. 3. Eliz. in C. B. Owens Report fo 45 but q. of that Case Grotius lib. 3. cap. 3. Vide Treaty 1. Decemb at London 1674 Art the third what is meant by Goods Contraband or prohibited Merchandize Cambden vide anno 1589 1595. Plutarch Mursius in his Danish Hist. l. part 2. Vide Tit. Customs 31. Eliz. C. B. Owen 45. Vide the Proclamation of Holland to England c. Bald. ad l. 2. c. de Sev. n. 70. Under the name of Contraband may be comprehended Arms only as pieces of Ordinances with all Impliments belonging to them Fire-Balls Powder matches Bullets Pikes Swords Lances Spears Holberts Guns Mortar-Pieces Petards Granadoes Musket-rests Bandaliers Salt-peter Muskets Musket Shot Helmets Corslets Breast-Plates Coats of mail and the like kind of Armature so for Horses and other warlike Instruments v. Marine Treaty between Eng. Holl. 1. Decemb. 1674 art 3. So likewise it is Ships Masts and whatsoever shall be thought or asscertain'd capable of Arming an Enemy Bartol l. nullus nunc l. 2. de Judaeis Coelicolis Anno 1650 or 1651. vide R. Cooke of the Church's State in equal danger with the Trade Reprisals are all one both in the Common and Civil Law Reprisalia est potestas pignorandi contra quemlibet de terra debitoris datae creditori per injuriis damnis acceptis vocabular utriusque Juris 27. E. 3. Stat. 2. cap. 17. †Leg. unica c. ut null ex vicanis c. ne uxor pro mar ne fil pro patre totis tit Ulpian Leg. sicut sect quod cuique universnom Et singuli debebunt non tanquam proprium sed tanquam publicem publici partem Seneca lib. 6 de Benefit c. 20. cap. 19. * Leg. nullam c. de Execut. Exactionibus In Nov. Just. 52â—… 134. C. unico de injuriis in sexto Just. Inst. de Jure Nat. Baldus 3. cons. 58. Bartol de Repress q. 5. ad ter num 9. 〈◊〉 Herod to whom it was not lawful to make War against the Arabians might lawfully use pignoration Joseph lib. 6. Livy lib. 34. C. Si sententiae c. 16. de Sent. excom in 6. constit Leg. qui restituere de rei vindic †MagnaCharta C. 30. the later Clause Claus 7. Johannis Reg. m. 22. Pat. 15. E. 3. part 2 dors 48. Pat. 23. H. 6. part 2. dors 14 15. Fitz. H. N. Bre. fo 114. Reg. 129. Pat. Rolls 14. 14. H. 6. par 1. dors 15. 17. 22. M. 5 6 7. par 2. dors 18. 22. E. 4. par 2. M. 25. dors 2 4. Machiavel on his Tit. Liv. C. A Prince in this later Age lost his Country but for a load of Sheep Skins Leg. qui restituere de rei vindicat Res judie pro veritate habetur yet it is as true Judex male judicans pro injuria tenetur Et cum per injuriam Judicis domino râ—…mquae debitoris non fuisset abstu lisset creditor quasi obligatum sibi quaeretur an soluto debitor restitui eam opporteret debitori Scaevola restituendam probavit Leg. scripturam ss de distr pign * Verus debitor licet absolutus sit natura tamen debitor permanet Paulus Leg. Julia. D de cond indebtor Nulli veâ—…demus nulli negabimus aut differemus Justitiam Grand Charter Coke 2. Inst. 56. Case of Slaughter Lee against the Governor of Leighorn upon the Petition of Gould Canham Merchants in Nov. 1670. on which two Letters of Request are gone to the Great Duke of Tuscany for redress * after the Massacre at Amboyna and the other depredations committed by the Flemings on the English his Majesty in 1625. issued forth his Letters of Request to the States of Holland for satisfaction within 18 Months otherwise Letters of Reprisal Vide Journals of that year and Leo Aitzma p. 48. 13. 41. 82. Vidâ—… Machiavel History of that War Mich. 9. E. 1. Rott 53. in Thesaur Recept Regis in Scac. Coram Rege Florentia Vide Rott Vasconie 28. E. 3. Rott 7. pro Rob. Draper aliis Civibus Corke in Hibernia Rex facisne tu Regium Nuntium Populi Romani Quirit vaja comitesque meos The Embassadors of the Romans being ill used by the Carthaginians and Scipio's Army having surprized the Embassadors of the Carthaginians was demanded what should be done to them answered not as the Carthagineans have done to the Romans * Vita autem Subditorum innocentium ut ex tali causae obligetur sorte creditum fuit apud aliquoâ—… Populos eo nimirum quod crederent unicuique hominum jus vitae plenum esse in se ad Rem publicam potuisse transferri quod minime esse probabile nec
of Nations and those of Countries may * In Legat Cajum Quomodo autem satis digne quis explicet facilitatem ad mutua Commercia nobis datam Ne enim itineris longitudo impedimentum aliorum ad alios commetatibus ad ferret breviorum viam mare scilicet ubique terrarum disposuit Deus ad mundum tanquam unum domum communiter inhabitantes crebro nos invicem inviserimuâ—… apud se nata quisque alteri communicans vicissim commode acciperet res apud illum abundantes ac sic exiguam tenens terrae partem ita tanquam si teneret universam frueretnr ejus quae uibis sunt bonis Licet itaque nunc tanquam in communi mensa convivarum unicuique ea quae sibi opposita dare alteri longius accumbenti ac contra quae apud ipsum sunt accipere mann tantum extenta Vide Strabo lib. 8. lib. 16. * 13 H. 4. fo 14. †Lib. 5. fo 63. Case of the Chamberlain of London Vide the Plea of the Venetian Lawyers at the end of Mr. Selden's Mare Clausum Pereg. l. 1. de jure Fisci Cap. 1. num â—…7 L. libertus § 1. D. de statu hominum Fiunt etiam servi liberi homines Captivitate de jure gentium Bracton l. 1. c. 6. Littleton Sect. 175. l. Postlim § 1. D. de Captiv L. servorum § 1. D. de statu hominum Apud omnes peraeque gentes ait Cajus animadvertere possumus dominis in servos vitae necisque potestatem fuisse Co. Instit. fo 116. b. B. l. 1. D. de his qui sui sunt juris institit de his qui sui Leg. Cornelia ff de Testam Leg. Cornel. ff de vulg substit In jure Postliminii Leg. retor l. in bello § 1. l. bon ss de Capt. § 4. D. quibus mod jus patr solvit And Fortescue conceives it began ab homine pro vito introducta 〈◊〉 servitus Eâ—… libertas 〈◊〉 â—…inis 〈◊〉 naturae quarâ—… 〈◊〉 ab homine 〈◊〉 〈◊〉 redire gliâ—…t ut facit 〈◊〉 quod libertate naturalis privatur Cap 42. * Artic. of war Anno 1673. for His Majesties Forces Artic. 24. Bâ—…rt in l. nam serv. D. de Reg gistis In the Wars of the French with the Spaniards in Italy a Horseman was Ransomed for the 4 th of his yearly Pay Vide Maria na lib. 27 18. And in the last Belgick War the English dismist all the Flemings that were taken in War as they did the like with those of England An. 167â—… â—… Quam non sit ardua vertus servitium fugisse manu it is none of the hardest Vertues to embrace Death to avoid Slavety * 16 17. Car. 2. Cap. 24. It 's expired but His Maiesty is yet graciously pleased to consider the state of his poor Subjects and thereupon hath appointed a Committee of the Lords of the Privy Council for the managing of that Affair †Yet some of the English Merchants others at the Canaries do here support this unnatural Custom So likewise at Virginia and other Plantations Exod. 21. 26 27. Vide the Statute of 5 Eliz. who hath provided the like remedy in other places Deut. 15. 13. The Russians having seized on the Countrey of Illyria and made it their own by Conquest their Victory pleased them so highly that thereupon called themselves by a new Name Slave which is in their Language Glorious but in after time that warmer Climate having thawed their Northern hardness and not ripned their Wits when they were Conquered the Italians in derision calling them being then their Bond-men Slaves Sir Walter Rawleigh lib. 2. Cap. 17. § 8. Vide leg 12. Tabuli Sigonus de jure Roman l. 1. Cap. 10. * Justin. Inst. l. 1. tit de Ingenius vide Franc. Silo in Cattilin arâ—… 4. Goodwyn Antique Rom. 4. 33 34. Tertullian de de resur Carâ—… * As to some things Vide postea § 9. Magna Charta Cop. 14. 1 R. 3. so 4. Bacons Case 1 Cro. 4. so 437. Stephens Case 2 Car. in the Dutchy A Geius Noct. Artic. l. 3 c. 17. First granted 17 Joh. Reg. revived 9 H. 3. and since confirmed above 30 times * The Lord Morley and Monteagles Case for the supposed Murder of one Hastings 15 Car. 2. 10 E. 4. 6. 33 Hen. 8. Bro. title tryals 8 Ed. 3. Rot. Parl. m. 7. 28 E. 3. Cap. 3 Atamen in poenae nomine lene fuit Quippe relegatus non exul dicor in illo Ovid. de Trist. li. 2. Elig * Adde quod edictum quamvis immitte minaxque In London the same is done by exhibiting an Information in the name of the common Serjeant in the Mayors Court there against any Citizen that shall justly deserve so great a dâ—… honour * 17 Car. 2. Cap. 2. Mr. Selden observes That in the time of King Henry the First and of other Kings both before and after him that if any man accused of a Capital Crime done at Sea being publickly called Five times by the Voice of the Cryer after so many several days assigned did not make his appearance in the Court of Admiralty he was Banished out of England de mere appurtenant ou Roy d'Angleterre for 40 years more or less according to his offence Mar. Claus. so 12. 34 E. 1â—…1 H. 4. Bulstrod 3. part 188. 15 E. 3. Fitzh Petition pl. 2. 8. Re. fo 126. Case City of London Fo. 124 King Edward the 3d. granted to John Falcount de Luca an Apothecary of the City of London quod ipse omnibus libertatibus quas Cives Civitatis praedict habent in eadem Civitate alibi infra Regnum Angl ' nostrum habeat gaudeat utatur c. Rot. Pat. 32 E 3. In the Tower yet it was held That this Grant did not make him a Free-man of the City for it cannot be attained but by one of those ways †Case of the City of London Co. 8. Report Confirmed by Magna Charta cap. 9. Rott Parl. 7. R. num 37. 9 E. 2. cap. 2. 29 E. 3. cap. 2. 27 E. 3. cap. 11. 7 H. 4. cap. 1. 9 H. 4. this Act is not printed James Baggs Co. 11. Rep. Calvinuâ—… case Go. lib. 7. Yelverton 199 LordDyer 283. Pasce 29 Eliz. Sir James Crofts case by the Judges 32 E. 3 Cozinag 5. 3 Report Ratâ—… lifts Case Seldeni de successionibus apud Hebâ—…s cap 20. Comment on Littleton fo 5. 68 tit 3. 8 tit 1. de haeredibus ab intestato venienâ—… tibus Customs Normand c. descheancres Grotius de Jure belli ac Pacis lib. 2. cap. 7. Dyer 274 Grayes Courtneyes c. Com. Pleas Coron fo 141. Michelmas 1 Car. Cro. 3. part Caroons c. 32 Ed. 3. tit Cozinage 5. Ramseyes c. 15. Car. 11. in Com. Banc. Godfry and Dixons case Hill 16. Iac. in Bâ—…R Godbolt 275. De Natis ultra mare 25 Ed. 3. 2 Car. in the Dutchy in Stephens cause 16 Car. 1 Cro. 437. Bacons case Prowdes case of Kent