tongue or Nation whatsoever nor matters it of what sufficiency the Jurors are for the form of the venire facias shall not be altered but the clause of quorum quolibet habeat 4. c. shall be in If both parties are Aliens then the Inquest shall be all English for though the English may be supposed to favour themselves more then Strangers yet when both Parties are Aliens it will be presumed they will favour both alike without any difference IV. If an Alien is party who slips his opportunity and suffers a Trial by all English the same is not a Verdict Erroneous for if he will be so negligent as to slip that advantage which the Law gives him it is his fault for the Alien if he will have the benefit of that Law he must then pray a venire facias per meditatem Linguae at the time of the awarding the venire facias But if a neglect of that opportunity happens yet if he prays it after the awarding a general venire facias the same may be retreeved so as it be before the venire be returned and filed for then he may have a venire facias de novo or otherwise he cannot nor can he afterwards challenge the Array for this cause if it falls out the Juries are all Denizens though Sandford seems to be of a contrary opinion for the Alien must pray it at his peril V. If there be a general venire facias the Defendant cannot pray a decem Tales c. per medietatem Linguae upon this because the Tales ought to pursue the venire facias But if the venire facias be per medietatem Linguae the Tales ought to be per medietatem Linguae as if five Aliens and five Denizens appear on the principal Jury the Plaintif may have a Tales per medietatem but if the Tales be general de Circumstantibus it hath been held good enough for there being no exception taken by the Defendant upon the awarding thereof it shall be intended well awarded If an Alien that lives here under the protection of the King of England and Amity being between both Kings commits Treason he shall by force of the Act of 1. and 2. Ph. and Mary be tryed according to the due course of the Common Law and shall not in that case be tryed per medietatem Linguae But in case of Petit Treason Murder Fellony c. if he prays his Trial per medietatem Linguae the Court ought to grant it Yet if an Information be exhibited against an Alien the Trial is not per medietatem but according to the Common-Law If an Alien in League brings an action if there be cause the Defendant may plead in abatement but if it be an Alien Enemy he may conclude in the action In an action for words the Defendant pleaded not guilty and said he was an Alien born and prayed Trial per medietatem Linguae which was granted and at the nisi prius in London but six English-men and five Aliens appeared and the Plaintif prayed a Tales de Circumstantibus per medietatem Linguae and it was granted so there wanted one Alien and the Record was Ideo Alius Aliegena de Circumstantibus per vic' London ad requisitionem infra nominati Julii Caesaris per mandato Justiciarum de novo apposito cujus nomen panelo praedict ' affilatur secundum formam Statuti in hujusmodi casu nuper editi provise qui quidem Jurato sic de novo appositus viz. Christianus Dethick Alienigena exactus venit ac in Juratam illam simul cum aliis Juratoribus praedicta prius impanellatis Juratis Juratus fuit c. It was found for the Plaintiff and afterwards moved in Arrest of Judgment That no Tales was to be granted de Circumstantibus when the Trial is per medietatem Linguae by the Justices of Nisi prius by the Act of 35 H. 8. because in the Act it is spoken of Free-hold of Jurors and an Alien is not properly said of any Countrey or to have any Free-hold but it was adjudged because the Statute was made for speedy execution that it should be expounded favorably according to the intent and meaning of the Makers of the Act and though in this case the Tales was prayed by the Plaintiff where it ought to have been ad requisitionem defendentis yet that should be taken to be but a misprision and would be amended VI. If the Plaintiff or Defendant be Executor or Administrator though he be an Alien yet the Trial shall be by English because he sueth in Auter droit but if it be averred that the Testator or Intestate was an Alien then it shall be per medietatem Linguae Shely a French man who joyned with Stafford in the Rebellion in the taking of Scarborough Castle in the County of York he being taken was arraigned in the Kings Bench upon an Indictment of Treason and the Indictment was contra legiantiam suam debitam and the Indictment was rul'd to be good although he was no Subject because it was in the time of Peace between the Queen and the French King But if it had been in the time of War then the Party should not have been indicted but ransomed It was likewise rul'd there that the Trial was good although the Venire facias awarded in York was general and not de medietatem Linguae for such Trial per medietatem Linguae does not extend to Treasons 4. Ma. Dyer 145. the Indictment ought to omit the words Naturalem Dominam suam and begin that he intended Treason contra Dominam Reginam c. Hill 36. Eliz. in B. R. Stephano Ferraro d'Games case in Dr. Lopez Treason If an Alien Enemy come into this Realm and be taken in War he cannot be indicted of Treason for the Indictment cannot conclude contra legianeiae suae debitum for he never was in the protection of the King and therefore he shall suffer death by Marshal Law and so it was rul'd in 13 H 7. in Perkin Warbecks case who being an Alien born in Flanders feigned himself to be one of the Sons of King Edward the 4th and invaded the Realm with intent to take upon him the Dignity who had his Judgment and Trial by Martial Law and not by the Common-Law of England VII The Kingdom of Ireland was a Dominion separated and divided from England at the first and came to the Crown of England by Conquest in the time of Henry the Second and the meer Irish were as Aliens Enemies to to the Crown of England and were disabled to bring any action and were out of the protection of the Laws of this Realm and five Scepts of the Irish Nation were only enabled to the Laws of England viz. Oneil de Ultonia O Molloghlin de Media O Connoghor de Connacia O Brian de Tholmonio and Ma Murogh de Lagenia as appears by the Records
to Privateers and the immunities they claim by the same VII Of the care that obliged on the issuing forth such Commissisions VIII Of provisions made as in reference to their regulating and especially the last Treaty Marine between England and Holland IX Of Goods subject to prise how considered in reference to adjudication general X. Of the Goods considered in reference to adjudication on occasions special XI Of the lading made prise whether it draws in a forfeiture of the Vessel and where otherwise XII Whether Ships refusing to yeild up to such life is engaged XIII Privateers where subject to punishment and their actions occasion a forfeiture of their Vessel XIV Of things not subject to spoil XV. Considerations general on Privateers 1. NAturally every one may vindicate his own right therefore were our hands given us but to profit another in what we can is not only lawful but commendable since nothing is more servicerble to Man then Man now there are divers obligations between Men which engage them to mutual aid for Kinsmen assemble and bring help and Neighbors are call'd upon and fellow Citizens for it behoves every one either to take armes for himself if he hath receiv'd injury or for his Kindred or for his Benefactors or to help his fellows if they be wrong'd And Solon taught that Common-wealths would be happy wherein every one would think anothers injuries to be his own But when War is denounc't it matters not what obligations are wanting it is enough the Nation is injur'd in general for in that every individual is wrong'd and all participate in the indignities and public damages of his Country to revenge or prevent which is the duty of every member of the same II. Since therefore it is not against the Law of nature to spoil him whom it is lawful to kill no wonder that the Laws of Nations permitted the Goods and Ships of enemies to be spoiled when it suffered their Persons to be slain III. The approbation of which in the Wars of later Ages hath given occasion to Princes to issue forth Commissions to endamage the enemy in their Commerce and to prevent such supplyes as might strengthen or lengthen out War to persons to whom the prise or caption become absolute the Captors and that to prevent the spare of Ships of force to be absent from their respectives Squadrons or Fleets By those of Holland were termed Capers by the Spaniard they had their denomination from their respective parts as Ostenders Dunkirkers and the like in England call'd Privateers how far the actions of those as in relation to the attacking and killing of the enemy or spoiling of their Ships and Goods are lawful not being commanded nor hired thereto may be some question IV. By the Laws of Nations as hath been said it is lawful for every Subject of that Nation in War to seize upon the enemies Goods and Ships as also to kill them for they are after War denounc't by Law lookt upon as of no account and if respect be had to natural and internal right it seems granted to every one in a just War to do those things which he is confident within the just measure of warring be advantageous to the innocent party but though there may be such authority given yet what tittle can they claim or appropriate to themselves of the Ships or Goods of enemies for surely there is nothing owing to such nor are they lawfully call'd to the same unless they can shrowd themselves under the protection of what they do is only to exact punishment from the enemy by the Common right of Men. V. Commissions to kill or spoil the enemy are in two respects either General or Special General as in a tumult among the Romans the Consul said Whosoever would have the Common-wealth safe let him follow me and to all particular Subjects is sometimes granted a right of killing in self-defence when it is publickly expedient as on a sudden occasion and the like VI. Special Commissions be such as are granted to those that take pay and are under Orders the not obeying of which may be punished with death though the act succeeds well Others to repair a particular dammage by way of Reprise the original dammage being turn'd into a National debt but that satisfy'd the other determines or else to those who receive no pay but go to War at their own charge and that which is more administer at their own costs a part of the War by providing Ships of force and all other military provisions to endammage the enemy or their Confederates the which are termed Privateers c. as above to whom instead of pay is granted leave to keep what they can take from the enemy and though such Licence is granted them yet may they not convert of their own head to their private use those prises before the same have been by Law adjudged lawful to the Captors and the Admiral had his share VII Nor may such Privateers artempt any thing against the Laws of Nations as to assault or endammage an enemy in the Port or Heaven under the protection of any Prince or Republick be he Friend Ally or Neuter for the peace of such Places must be kept inviolably Sir Kenelme Digby having obtain'd a Commission against the French who being in the Streights was every where honoured as a Cavalier whom the King of Great Britain favoured in his Voyage he took some prises and coming to Algier redeemed several Captives whom he took aboard and placed in the several Vessels he had made prise of the which he so effected that in a short time he became Illustrissimo of six Ships of War coming to Cape Congare ten leagues from Scanderoone and having sent a Boat to descry the road word being brought that there were in the road two Venetian Galeasses with two other Galeons two English Ships and several French Ships Sir Kenelme being satisfy'd of the prise resolved to attaque them the next Morning although the Admiral of the Venetians having declared himself protector of the French and that he would destroy all the English Ships of War that he should meet either in that Republick or Grand-Seigniors Seas Sir Kenelme notwithstanding resolv'd to engage them and accordingly bore up to them and the Venetian General weighed anchor to meet him Sir Kenelme before he fired sent a Satty to inform the Venetian of his Quality and of his Commission being only to endeavour to make prise of the French and giving him all the assurance possible of his friendship and respect to the Republique but before the Satty was answer'd the engagement was begun by the English French and Venetian This action of Sir Kenelme Digby was question'd by the Turk for that hostility had been committed by the English in the Grand-Seignior road and thereupon the Bassa of Alleppo and Cady of Scanderoone made an Avenia or Embargoe on the English Merchants till reparation was made for
yet as in reference to the Maritime Dominion Henry 8th did embellish his Navy Royal therewith and Queen Elizabeth stamped it upon those Dollars which she designed for the East India Trade signifying her Power of shutting up the Seas if she thought fit as by a Port-cullis with the Navy Royal this Dominion of the British Seas did Authenticate the Proclamation of King James ordaining the Flemish at London and Edinborough to take licence to Fish this justified the like Proclamation by the late Royal Martyr King Charles and warranted by the Earl of Northumberland in his Naval Expedition That Prescription is valid against the claims of Soveraign Princes cannot be deny'd by any who regard the Holy Scripture reason the practise and tranquillity of the World and that true it is the modern Dutch have pretended if not dared to challenge the Freedom to Fish in the British Seas by Prescription but it is likewise as true that Prescription depends not upon the Corporeal but the Civil possession and that is retained if claim be but made so often as to barr the Prescription the which hath been alwaies made evident first by frequent Medals next by punishing those that refused it as Rebels by guarding it of it and lastly by giving Laws time out of mind on it which evidently proves that the Civil possession is not relinquished our Kings constantly claiming the Dominion of the same none else pretending all Nations acknowledging it to be in them and the same never questioned till those modern Dutch of yesterday arose XIV The importance of the Dominion of the Sea unto this Nation is very great for alone on that depends our Security our Wealth our Glory from hence it is that England hath a Right to all those advantages and emoluments which the Venetian Republique draws from the Adriatique Sea where the Ships of the Grand Seignior of the Emperor King of Spain and Pope pay Customs to maintain those Fleets which give Laws to them within the Gulfe 't is hereby that the English can shut up or open these Seas for Ships or Fleets to pass or repass them whereto Queen Elizabeth had so special a regard that when the King of Denmark and the Hansiatique Towns sollicited her Majesty to permit them free passage they transporting Corn into Spain she refused them and when a Protestant Fleet of Hamburgers and others had presumed to do so notwithstanding her prohibition she caused her Navy Royal to seize take burn and spoil them when they were passed her Maritime Territory within sight of Lisbon yielding this reason for her justification that they not only relieved her Enemy with provisions but had presumptuously made use of her Seas without obtaining her Royal Permission for so doing 't is from hence that the Crown of England can justly demand an account of any Ship or Ships occurring in those Seas what 's their Business and what their intentions are and prohibite any Prince or Reipublique to enter there with potent Fleets without praeacquainting his Majesty and obtaining his Royal Permission without which Dominion and Soveraignty England can never live secure on shore it being easy for any Forreign Fleets to amuse us with specious pretenses and in their passage to invade and surprise us Thus whilst the Turk pretended to sail for Malta he occasionally possessed himself of Canea in the Isle of Candia many such presidents do occur in History And in fear of such surprizal the Athenians being Lords at Sea did exclude the Persian Monarchs from sending any Ships of War into any part of the Aegean Sea Rhodian Carpathian and Lydian Seas and that which tends to the West towards Athens the like caution was used by the Romans against Antiochus and the Carthaginians and the Turk prohibits all Nations saving his Vassals to enter the Black Sea or Pontus Euxinus and also the Red Sea and that 't is by virtue and force of this right that the British Nation can drive on their own Commerce navigate themselves and permit others securely to trade with them 't is true that the Dutch have presumed some years since to violate the security of the British Seas by the attacking the Allies of England not only within the British Seas but in her Harbours attempting to pursue a French Vessel up almost to London and have more then once attacqued the Spanish Fleets in her Ports under the protection of her Castles and that against the Laws of Nations and the Peace of Ports in which for the time they seemed to cloud the Honour of the Nation but satisfaction for indignities of that nature though slow yet are sure and should such as those have been longer tollerated Beloved Britannia must become a prostitute by a Confederation of those States or take Pass-ports for her Commerce But the Royal Martyrs goodness was no longer to be trod on his Heart and his Cause were good and though those unhappy times which were crooked to whatsoever seem'd straight did hinder the accomplshiments of his entire intention for satisfaction yet those whom the just God of Heaven was pleased for a time to permit as a punishment to this Nation to rule did not want in the fulfilling for so soon as he was pleased to stay the fury of the Intestine Sword their hearts took fire from that flame that had formerly been kindled in that Royal Brest and having prepared a Fleet in order to the treating as Souldiers with Swords in their hands they were in the like manner assaulted in their Territories in the Downes but the Dutch found then what it was though two for one to assault a British Lyon at the mouth of his Den intending if possible to have destroyed the English Power but were frustrated in their design being severely beaten home to their own dooâ—…â—…d afterwards those that then had got the English â—…d in their hands begun to consider that the Victâ—…y â—…ust be pursued as a season fit to assert their Antienâ—…â—…ight and Soveraignty of the Sea and then those people thinking that the odds before was not enough to destroy the Briâ—… Fleet they equipt out a Fleet greater and far more numerous then the English under the Admirals Van Trump De Witt the two Evertsons and Ruyter but they suffered the same fate as their former about some 34 of their Ships on the Coast of Flanders burnt and taken and the rest chased home to their Ports and not long after followed the total defeat of their Naval forces accompanied with the death of Van Trump by the English under the Admirals Blake and Monk who had sunk and fired about 30 more of their Ships of War no quarter being given till the end of the Bataill six Captains and about a thousand Men were taken prisoners and about six thousand slain of their Presomptions since amongst other things in denying the duty of the Flagg and of what punishment and check they have had for
others by that licence which the Law of War granteth nor ought any Person to be moved with this that such being taken are punished with death for that proceeds not from their having offended against the Law of Nations but from this that by the same Law every thing is lawfull against an Enemy And every one as it is for his own profit determineth either more rigourously or gently but that Spies are both lawfull and practable there is no question for at this day by the generall instructions of Fleets there is alwaies out of each Squadron some Frigots or Ships appointed to make discovery of the Enemy and upon sight to make saile and to stand with them in order to the taking cognizance of their Force as well Ships of War as Fire-Ships and in what posture they lay which being done those detecting Frigots are to speak together and to conclude on the report they are to give which done they return to their respective Squadrons such Ships in such service are not oblidged to fight especially if the Enemies Force exceed them in number or that they shall have an apparent advantage VIII Again it is not lawfull for any be he friend or neuter to relieve an Enemy much less for a Souldier or Mariner in pay to supply him that conspires the destruction of my Countrey is a liberality not to be allowed of he is to be accounted an Enemy that supplies the Enemy with necessaries for the War and therefore by the Laws of War is so to be esteemed and by the Laws of England if any Person in the Fleet relieve an Enemy or Rebell in time of War with Money Victuals Powder shot Armes Amunition or any other supplies whatsoever directly or indirectly shall suffer death IX Ships being assaulted and taken as prize all the Papers Charter-parties Bills of lading Pass-ports and other Writings whatsoever that shall be taken seized or found aboard are to be duely preserved and not torn or made away but the very Originalls are to be sent up entirely and without fraude to the Court of Admiralty or to the Commander appointed for that purpose in order to the condemnation of the Prize upon pain of the Captors loosing their share in the Prize and also subject to such other punishment as a Court Marshall shall think fit X. The Right of taking of spoil was approved of GOD within these naturall bounds which have been already mentioned is further evinc't by the appointment that GOD in his Law concerning the Acquisition of Empire over the conquered after refusal of peace All the spoil thereof shalt thou take unto thy self and thou shalt eat the spoil of thine enemies which the LORD thy GOD hath given thee Hence it is that things taken from the Enemy presently become theirs that take them by the Law of Nations and such acquisition is called Natural for not any cause but the naked fact is considered And thence a Right springeth for as the Dominion of things began from Natural possession and some print of the same remains in the things taken in the Land the Sea and the Air so likewise of things taken in War but though this gives a Right to the Captors yet that must be understood to the Soveraign or to the State that imploy'd them and not to themselves but if they have any share of the Prize the same proceeds by the condiscention or grant of the Soveraign which may be enlarged or abridged as occasion serves and therefore by the Laws of England Ships of War having a Prize the goods and all manner of lading is to be preserved till adjudication shall pass but that is to be understood where the Ship voluntarily yields but Ships whom they shall assault and take in fight or prize the pillage of all manner of Goods and Merchandizes other then Arms Ammunition Tackle Furnitures or stores of such Ships as shall be found by the Captors upon or above the Gun-deck of the Ship become theirs but this is to be understood where such Prize may lawfully be possest for there are times when such are not to be meddled with and therefore it is against the rules of War in fight if some of the Enemies Ships are there disabled yet those Ships that did so disable them if they are in a condition to pursue the Enemy cannot during the fight take possess or burn such disabled Ships and the reason is least by so doing some more important service be lost but they are to wait for such booty till the Flagg-Officers shall give command for the same Vluzzali King of Algier in the famous Bataill of Lepanto having behaved himself very valiantly there against the Christians that he destroy'd severall of their Galleys and others he took amongst the rest the Galleys of Pietro Bua of Corsa of the Prior of Messina and Ludovico Tipico of Trahu and Benedeto Soranza the which he towed after him before the Battle was compleated but that getting proved the loss both of the one and the other for the Turks out of coveteousness of the plunder or otherwise thronging into them accasioned their taking fire in which the Victors in those flames became Victimes and after follow'd the totall rout of the Ottoman power XI It is almost impossible that in Ships of War which in these daies carry so considerable force in Men but there will be some amongst them that have heads of knavery and fingers of Lime-twigs nor fearing to steal that from their Prince which is applicable only for the good of their Countrey such sort of Night-wolves when caught are to be severely punished and therefore to steal or take away any Cables Anchors Sails or any of the Ships Furniture or any of the Powder or Arms or Amunition of the Ship subjects the offender to the pains of death or to such other punishment as the quality of the offence shall be found by a Court Martial to deserve XII By the ninth Article Forreign Ships or Vessels taken as Prize without fighting none of the Captains Masters or Mariners being Forreigners shall be stripped of their cloaths or in any sort beaten pillaged or evil entreated and the Persons so offending being oblidged to render double damage this Law most expresly doth not extend to those that obstinatly shall maintain a Fight for most certain by the Law of Arms if the Ship be boarded and taken there remains no restriction but that of charity and if a Ship shall persist in the engagement even till the last and then yield to mercy there has been some doubt whether quarter ought to be given to such for they may ignorantly maintain with courage a bad cause but Captives and those that yield or desire to yield there is no danger Now that such may be justly killed there must be some antecedent crime and that such a one as an equall Judge would think worthy of death and so we see great
severity shew'd to the Captives and those that have yielded or their yielding on condition of life not accepted if after they were convinced of theinjustice of the War they had nevertheless persisted with hatred or cruelty if they had blotted their Enemies Name with unsufferable disgraces if they had violated their Faith or any Right of Nations as of Ambassadors if they were fugitives But the Law of Nature admits not talliation except against the very individuall Person that hath offended nor doth it suffice that the Enemies are by a fiction conceived to be as it were one Body though otherwise by the Laws of Nations and by the Laws of Arms and at this day practised in all Fights the small Frigots Ketches and Smacks are to observe and take notice of the Enemies Fire-Ships and to Watch their motion and to do their best to cut off their Boats and generally the Persons found in them are to be put to death if taken and the Vessel if not taken distroy'd and the reason why the extreamity of War is used to such is that by how much the mischief is the greater by the act of such Men if executed by so much the punishment is aggrivated if taken and quarter denyâ—…d them by Law of War XIII Every Captain or Commander upon signall or order of Battle or view or sight of any Ships of the Enemy Pyrat or Rebell or likelyhood of engagement they are to put all things in the Ship in fit posture for a Fight as the breaking down the Cabins clearing of the Ships of all things that may impede the Souldiers in the preserving the Ship and themselves and endamaging the Enemy and every such Commander or Captain are in their own Person and according to their Place to hearten and encourage the inferiour Officers and common Men to fight valiantly and couragiously and not to behave themselves faintly under the disgrace of being casheered and if he or they yield to the Enemy Pyrat or Rebell or cry for quarter he or they so doing shall suffer the pains of death or such other punishment as the offence shall deserve Now though Souldiers or Mariners having oblidged themselves faithfully to serve in the Expedition or Navy yet that is to be understood no further then his or their power to do his utmost in his or their Quality for though the obligation for the Service be taken in the strickest tearms of undergoing death and danger yet it is to be understood alwaies conditionally as most promises are viz. if the action or passion may be for that Fleet or Princes advantage and therefore if the Fleet of Squadron is beaten and the Ships are diasabled and left scarce without any to defend them now the Souldiers or Mariners remaining can do no more for their Prince then die which indeed is to do nothing at all but to cease for ever from doing any thing either for him or themselves in those Streights therefore it is not repugnant to their Oath called Sacramentum Militare to ask quarter or strike and having begg'd a new Life and taken it they are bound in a new and just obligation of Fidelity to those to whom they were bound to kill few hours before neither can the Prince or Generall expect by virtue of their former obligation to him they should kill any in the place where the quarter was given however this Fidelity hath not its inception from the time of taking quarter but when the Battle is over and that time which is termed cold blood for without all controversy if a Ship be boarded and the Quarter is given yet if while the Fight lasts the Persons captives can by any possibility recover their liberty and Ships they may by the Law of Arms justly acquire the same And since impunity is granted to such unfortunate desertors yet it must be apparently evident and fully proved that they were reduced into a condition beyond all hope in the Battle and therefore the feet that forsook the Unfortunate Pompey before the field was lost were justly condemned for the breach of the Roman discipline and Law of Armes and therefore the Article hath not positively declared death only but added or such other punishment as the offence shall deserve which provision leaves the Action to be judged and punished by a Councel of War who know best what 's to be done in cases of that nature however a base or cowardly yielding or crying quarter is to be punished with death and that without mercy XIV The obeying of Orders hath in all Ages been in mighty esteem Chrysantus one of Cyrus's Souldiers being upon his Enemy withdrew his sword hearing a retreat sounded but this comes not from the external Laws of Nations for as it is lawfull to seize on the Enemie's Goods so likewise to kill the Enemy for by that Law the Enemies are of no account but such obedience proceeds from the Military discipline of several Nations by the Romans it was a Law noted by Modestinus that whosoever obey'd not his Orders should be punisht with death though the matter succedded well now he also was supposed not to have obey'd who out of Order without the Command of the General entered into any Fight For if such liberty were lawfull either Stations would be deserted or licence proceeding the Army Fleet or Squadron would be engag'd in unadvised Battles which by all means is to be avoyded M. Capello a Venetian Gentleman of an antient Extraction having the Charge of the Guarding the Venetian Gulph met with the Barbary Fleet whom he so assaulted that he burnt and took divers of them among the rest the Admirall Galley of Algier a Vessel of vast higness which he brought with him away and she remains at this day a Trophy in the Arsenall of Venice the service although Noble and Honourable and such as brought renown to the Reipublique yet in regard it was an Action exceeding his Commission he was adjudged to punishment but his great Merit and Alliance preserved his Life such an exact obedience that Seignory expects to be pay'd to her Orders be the success never so Glorious And by the eleventh Article every Captain Commander and other Officer Seaman or Souldier of any Ship Frigot or Vessel of War they are duely to observe the Commands of the Admirall or other his Superior or Commander of any Squadron as well for the assaulting and setting upon any Fleet Squadron or Ships of the Enemy Pyrat or Rebells or joyning Battle with them or making defence against them as all other the Commands of the Admirall or other his Superior Commander the disobeying of which subjects them to the pains of death or such other punishment as the quality or neglect of his offence shall deserve XV. Again every Captain and all other Officers Mariners and Souldiers of every Ship Frigot or Vessel of War shall not in time of any Fight or Engagement withdraw or keep
pursuit and those of them flying nor ought such either through cowardize negligence or disaffection forbear the assisting of a known friend in view to their utmost power the breach of which subjects the offenders to the pains of death or at least such punishment as a Court Marshall shall think fit Empires are got by Arms and propagated by victory and by the Laws of War they that have overcome should govern those they have subdued Hence it is that Generalls having compleated a Conquest in a just War and in chase or otherwise have taken the Ships or Goods of the Enemy have absolute power over the Lives Estates Ships and things that they by force of Arms hath acquired by the Laws of Nations But yet in such Conquests where the reeking sword knows no Law that is they are done impune without punishment because co-active Judges do grant them their authority but yet such power may be exorbitant from that rule of right called Virtue and therefore by the Law of War Captives may be slain yet what Law forbids not modesty prohibits to be done Hence it is that Generals do often restrain that power of killing for though such Prisoners of War do fight for the maintenance of an unjust cause and although the War is begun by a solemn manner yet all acts that have their rise from thence are unjust by internal injustice so that they who knowingly do persist in fighting yet ought they not alwaies to be slain according to that of Seneca Cruel are they saies he that have cause of punishment but have no measure For he that in punishing goes further then is meet is the second author of injury and the principal reason why mercy is often shew'd is for that Souldiers of fortune offend not out of any hatred or cruelty but out of duty XVIII Again Generals in the measure of killing look no further commonly then the distruction of those who by force of Arms oppose them and though Ships or Cities are taken by assault the which by the Laws of War subjects every individual to the mercy of the Conqueror yet Children Women Old Men Priests Schollars and Husband-Men are to be spaired the first by the Law of Nature according that of Camillus We have Armes saies he not against that age which even in taking Cities is spaired but againâ—…t armed Men and this is the Law of Arms amongst good Men by which we are to note that by the words good Men as is observed to mean the Law of Nature for strictly by the Law of Armes the slayers of them are without punishment Now that which hath place in Children alwaies that have not attained the use of Reason for the most part prevails with Women that is unless they have committed something peculiarly to be avenged or do usurp Manly Offices as flinging of stones from the Walls pouring down burning pitch and brim-stone and the like be-tuminous stuff firing of Guns and the like for it is a Sex that hath nothing to do with the Sword that are capable of that clemency The like for old Men whom Papinius observes are not to be slain so for Ministers of Sacred things even Barbarous Nations have had them in reverence and preservation as the Philistins enemies of the Jews did to the Colledge of Prophets whom they did no harm and with those Priests are justly equalled in this respect they that have chosen a like kind of life as Monks and Penitents whom therefore as well as Priests the Canons following in naturall equity will have spared to these are deservedly added those that give themselves to the Study of good Learning and Sciences useful to Mankind be it in Universities or other publique Schools or Colledges To these are added Tradesmen so likewise Merchants which is not only to be understood of them that stay for a time in the Enemies Quarters but of perpetual Subjects for their life hath nothing to do with Arms and under that name are also contained other Work-Men and Artificers whose gain loves not War but Peace Again Captives and they that yield are not to be slain for to spare such is a Command of goodness and equity sayeth Seneca nor are Hostages to be destroy'd according to that of Scipio who said He would not shew his displeasure on harmless Hostages but upon those that had revolted and that he would not take revenge of the unarmed but the armed Enemy 't is very true by the Law of Arms if the Contract be broke for which they became Hostage they may be slain that is the slayer is without punishment but yet some conceive the slayer is not without sin for that no such Contract can take away any Man's life that is I suppose an Innocents life but without controversie if those that become Hostage be or were before in the number of grevious delinquents or if afterwards he hath broken his Faith given by him in a great matter the punishment of such may be free from injury XIX Where offences are of that nature as they may seem worthy of death as mutiny and the like c. it will be a point of mercy because of the multitude of them to remit extream right according to that of Seneca The severity of a General shews it self against particulars but pardon is necessary where the whole Army is revolting what takes away anger from a wise Man the multitude of Transgressors Hence it was that casting of Lots was introduced that too many might not be subjected to punishment However all Nations have generally made it a standing Rule in the punishment of Mutineers as neer as possible to hunt out the authors and them make examples of And therefore by the 15 Article if any Man at any time when Service or Action is commanded shall presume to stop or put backwards or discourage the said Service and Action by pretencee of arrears of wages or upon any pretence of wages whatsoever they are to suffer death and indeed the same ought to be without mercy by how much the more they may raise a mutiny at a time when there is nothing expected but Action and the shewing the most obsequious duty that possibly may be the breach of which may occasion the dammage of the whole Fleet and being of such dangerous consequence ought severely to be punished So likewise the uttering of any words of Sedition or Mutiny or the endeavouring to make any mutinous Assemblies upon any pretence whatsoever is made death And the very concealors of any trayterous and mutinous practises designs or words or any words spoken by any to the prejudice of His Majesty or Government or any words practises or designs tending to the hinderance of the Service and shall not reveal them subject them to such pains and punishments as a Court Marshal shall think fit And whereas in no case of the offences committed
of the World and for quietness sake that what it cannot find we grant it a power to make XV. Yet if we examine all this strictly at the two great Tribunals the external and the internal and arargue the jue of it as Statesmen and Lawyers do we can then raise the argument of it no higher in the external or temporal Court then only this That it is very convenient it should have the effects of Right left properties and dominion of things should be uncertain and the apparent negligences of time Owners should be punished and controversies have a speedy end States looking more after publique repose and quiet then after strict virtue and more after those things which are ad alterum then that which concerns a Mans own self for say they The Gods look well enough after their own injuries States meddle not so much with great prodigalities as in petty Larcenies our chiefest Liberty Priviledges or Prerogative in this World consisting only in an uncountroulable Right which we have to undo our selves if we please Certainly if we plead at the other Tribunal as conscientious Lawyers we must give our ultimate resolution out of that Law Quae inciditur non aere sed animis which is not ingraved in Tables of brass but in the Tables of our Souls for the Rules of Law tell us Quae principio vitiantur ex post facto reconvalescant and that prescription or usu-caption which is but the lapse of so much time hath the power to make Wrong a Right yea to change the morality of an action and turn quantity into quality upon the result of all which taking for granted what those stubborn people do hold that instead of being a right or a certain cause or proof of it it only makes a shaddow or an opinion of right XVI And when wehave taken those people by the hand and with eagerness run with them to the very bottom and end of the line and there find nothing we are but in Pompey's astonishment when after his Conquest of Jerusalem when he had with such reverence and curiosity visited the Sanctum Sanctorum and found nothing there but a paire of Candle-sticks and a Chair in which there was no God sitting yet for all this mistake he would not as Josephus saith disorder or rob the Temple which he took by force of Armes because the the very opinion of Religion hath something of Religion which made Jacob accept of Laban's Oath by an Idol so ought not we for defect of giving the causes of the inception of Prescription or of the Right in Prescription disorder a State or be the occasion of setting of two Nations at enmity nay though in conscience we are satisfy'd that it contains but the opinion or shaddow of Right and as to the involving the lives of the innocent there is no such thing in the matter for there is not required any thing which they do not owe nor are they designed to death but if the cause be such that they that are innocent must perish that is be exposed to death by their Rulers because they obstinatly will not yield that which is right but will involve the lives of their innocent Subjects by force to defend that which is wrong such guilty Governors must answer for the defect of their own evil actions on the other hand there can be no doubt made but he that hath an undoubted right being a Soveraign the Subjects partake in the same and the indignity offered to him they immediatly become partakers in the suffering for the satisfaction of which they may yea are oblidged both by the Law of God and Nations to seek reparation if their Prince shall command vis manu sorti by the hazard of their Blood and Lives XVII On the other hand as War introduces the greatest of evills viz. the taking away of Mens lives and that which is equivalent to life so right Reason and Equity tells us that it ought not to be undertaken without the greatest cause which is the keeping of our lives and that without which our Lives cannot be kept or if they should be kept yet they would not be of any value to us seeing there may be a life worse then death even Captivity wherefore as we are forbidden to go to Law for a little occasion so we are not to go to War but for the greatest Now those things that are equivalent to a Mans life are such whom Almighty God appointed the same equall punishment as well as to those of murderers and such as were breakers into Houses breakers of Marriage Fidelity Publishers of false Religion and those who rage in unnaturall lusts and the like However before Mens Persons or Goods are to be invaded by War one of these three conditions is requisite 1. Necessity according to the tacite contract in the first dividing of Goods as hath been already observed 2. A Debt 3. A Mans ill merits as when he doth great wrong or takes part with those who do it Against which If any thing is committed War may be commenc't nor is the same repugnant to the Laws of Nature that is whether the thing may be done not unjustly which hath a necessary repugnance to the rational and social Nature among the first principals of Nature there is nothing repugnant unto War on the other hand there is much in favour of it for both the end of War the conservation of Life and Members and the keeping and acquiring of things usefull unto Life is most agreable to those principalls And if need be to use force to that purpose is not disagreable since every Living thing hath by the gift of Nature strength to the end it may be able to help and defend it self besides reason and the Nature of Society inhibits not all force but that which is repugnant to Society that is which depriveth another of his right for the end of Society is that every one may enjoy his own this ought to be and would have been though the Dominion and property of possessions had not been introduced for life members and liberty would yet be proper to every one therefore without injury could not be invaded by another to make use of what is common and spend as much as may suffice nature would be the right of the occupant which right none could without injury take away And this is proved by that Battle of Abraham with the four Kings who took Arms without any Commission from GOD and yet was approved by him therefore the Law of Nature was his warrant whose Wisedom was no less emineut then his Sanctity even by the report of Heathens Berosus and Orpheus nor is the same repugnant to the Hebrew Law or Gospell as the same is most excellently proved by the Incomparable Grotius XVIII On the other hand the fear of uncertain danger as building of Forts Castles and Ships and the like though the former be on Frontiers the refusing of Wives when
6 Usury Advancing Money on a Contingency not within the Statute 2. 11. 13 14 Usura Maritima What is meant by the same 2. 11. 14 Want That or Plenty is the measure of things 2. 11. 4 Wart When by the Lawes of England 1. 1. 6 Warr the just causes of the same 1. 1. 5 Injury or spoyl committed to persons or goods in time of Warr cannot create a cause for Reprizal 1. 2. 15 An innocent person may be deserted and delivered up to death to prevent a Warr 1. 11. 6 If bound to deliver up himself ibid. Who are exempted from the Sword in time of Warr. 1. 14. 18 In Warr Contribution may be paid to both parties 1. 12. 3 Warr introduces the greatest of Evils 1. 15. 17 The Conditions that are requisite before the same be commenc'd ibid. Uncertain danger no cause for the same 1. 15. 11 Wharfes Which are lawful in London 2. 14. 10 Wharfingers obliged to make Satisfaction for Goods damnified or lost 2. 9. 4 Wines Of all sorts are to pay Aliens Duties 2. 13. 6 Words Lost or not lost how those words are to be construed 2. 7. 5 King and King King and State State and State how to be understood 8. 7. 17 18 At and from the Port of London how construed 2. 7. 10 Words that amount to an acceptance of a Bill of Exchange 2. 10. 20 Wreck In matters of Wreck there is a Contract between the party loserâ—… and they that find the Goods 2. 5. 1 Punishment of those that steal the Goods of Shipwrack persons by the Civil Law 2. 5. 2 If any thing escapes alive no Wreck by the Lawes of England ibid. The Kings of England hath the same by their Prerogative 2. 5. 5. Wreckt Goods pay no Custome 2. 5. 9 Wreck of the Isle of Wight passe not without expresse words 2. 5. 10 The End of the TABLE SOme Slips having happen'd in the Printing this Book in the Author's absence He desires the Reader to amend the same and to allow him his favourable construction Lactantius lib. 9. †Seneca 4. de Benesicijs Cap. 18. †Leg. ut vim D. de just jur n. 7. 8. * Vasquez 2. Controv. 54. 4. †Florentius 3. p. tit 22. Sect. 5. Leg. Servus D. de Serv. export * Cicero offic lib. 11. ex panetio * Coke 2. Inâ—… fo 28. Anno 1453. Vide Knowls History of that Monarchy Mirror Cap. 5. Sect. 2. 11 Ed. 3. Cap. 3. †Vide Cambden's Q. Elizabeth Anno 1666. 1672. 1673. Cambden Quâ—…stus Omnis indecorus patribus sayes livy Lib. 1. Dec. 3. Though they had 100 Rostrated Shâ—…s and 75 Gallies under Caius Duillus and his Collegue 〈◊〉 polybius observes †Cambden Strabo lib. 3. Gaules Town near Yarmouth the Mart for those Neighbouring Marchants Abrabamus Whelochus de priscis Anglorum legibus written originally by Mr. Lambard * Inserted in leges Edvardi and afterwards confirmed by the Norman Conqueror Mr. Selden's Mare Clausum lib. 2. Cap. the 10th to the 16. Matthew Westm. Anno 1035. â—…o 409. Selden Mare Clausum lib. 2. Cap. 11. * Coke 4. Inâ—…t fo 142. †Inter Leges Marinas sub fine anno Regni Regis Johannis 2. * Cic. ad Artic. l. 10. Ep. 7. Born in England but resident at Genoa Campanella Histor. Hispan Tempore Eliz. Regina Angl. Manil. pro Oratat Lege And Mr. Serjeant Calis must be so understood of the ancient Civil and Modern Roman Law reduced into one and they are not now two Lawes one Civil and the other Imperial but onely one that is the Imperial Vide his Reading on the Statute of Sewers Sect. 1. fo 31. The Articles of Enquiry annexed to them in 12 Ed. 3. The Inquisition at Quinborough 49 E. 3. Anno 1375. Statutes of Enquiry translated by Roughton Selden tit of Honour lib. ult Cap. ult It is called Imperium 〈◊〉 cause it proceeds froâ—… 〈◊〉 authority of the 〈◊〉 and not from any 〈◊〉 inherent in the party Leg. 1. §. de Const Princâ—… Coke lib. 106 fo 73. 〈◊〉 Case del Marshalsea Justin. lib. 43. A Theater is common yet the place possessed by any one may be rightly called his own Justin. lib. 2. ut de Scythis loquitur Trogus Primum inter Homines mali nescia adhuc astutiae inexperta simplicitas Seneca Naturalium 3. in fine Ne insignare quidem aut partire limite camp fas erat Grotius de Mari libero cap 15. †Cic. Offis 〈◊〉 Addendum illud Quintiliani Si haec conditio est ut quicquid in usum hominis cessit proprium sit habentis profecto quicquid jure possidetur injuriâ—… aufertur Maâ—… erobius Saturn lib. 3. c. 12. Leg. 2. §. cum in eadem D. ad Leg. Rhodani Quo non fragm §. Quod ait D. incend Leg. Quemadmodum §. item D. ad l. Aquilam 12 Ed. 3. tit distress 170. 11. H. 7. 5. Reniger Fogassas Plowden c. 1. to the 10. Coke 3 Inst. sol 83. Bald lib. 3. de rerum diversorum seems to have been of opinion that by the Laws of Nations one may take Armes to abate the growing power of his Neighbors Sed ut vim pati posse ad vim inferendam jus tribuat ab omni equitatis ratione abhorret But that a possibility of suffering force should give a right of offering of force this is far from all equity says the excellent Grotius lib. 2. cap. 1. sest 27. Sir Walter Raleigh in Hist. of the Word cap. of Duels so 550. â—…4 E. 3. tit Scire facias 122. inter Mortimer and Th. Earl of Lancaster Xenoph. 5. de Iustit Cyri. Aristotle 1. Polit. Hujus modi res non tam capta quam recepta intelligitur per D. per Pomponius L. Leg. in Bello Parag. Si quis servum in pr. de Capt. post 2. R. 3. s. 2. 7. R. 2. Trespass Statham Pl. 54. M. 8. Jac. in B. R. Brownlow 2. part Westons C. * Consulatu Maris c. 283. 287. Constit. Gallicae lib. 20. tit 13. art 24. 7. R. 2. Trespass Statham pl. 54. a Res quae intra Praesidia perductae nondum sunt quanquam ab hostilâ—…us occupatae Dominum non mutarunt ex Gentium jure Grotius de jure Belli ac Pacis l. 3. c. 9. b Trin. 17. Car. 1. in B. R. Marshe's Reports c For this is not an absolute Property immediately vested in the Captor upon the taking but a conditional Property to answer the original debt or damage which cannot be done without a Judicial adjudication the oportunity of which he hath lost by bringing the prize into the Country of another Prince for as to private War their Countreys are as an Asyllum per leg libertas de Leg. Jur. Buistrod 3. part f. 28. cited in Marsh's Case The getting of Letters of Reprizal against a Nation does not make a War between both States nor can they be said to be at enmity 22. E. 3. f. 23. 2 R. 3. f. 2. 7.
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