Recovery some have held that the Defensive did not extend so far notwithstanding if there were no Treaty which had concerned this Conquest yet it would seem more reasonable to comprehend the Recovery in the defensive if it be general For as it hath for its end to preserve the Allie in his State and that to attain unto it the Forces must not only remain in the Countrey of the Allie to attend the Enemy but after denunciation and other acts of hostility done by the Enemy they must enter into his Country to the end to prevent him or divert him from attempting any thing against the Allie The Offensive being judged by the aggression â—…and not by that which follows by a stronger reason they ought to enter into the Countrey conquered from the Allie for the recovery thereof but excuses in this kind proceed from those who fail in their faith courage or means to recover Contribution is one of the main ingredients in a League and is of great difficulty to regulate It is made either in Men or Money the Men are entertained by all Parties or by him only that hath need or otherwise as the League is Henry the 8th made a League with Francis the French King against the Emperor Maximilian and Ferdinand for the Recovery of Millane which he did the protection of his Neighbours and Reduction of the Swisse from the Imperial side for which he employed the Bastard of Savoy the agreement was of reciprocal Succour of 10000 Men if the War were made by Land and of 6000 if it were made by Sea and in all other occasions the French King was bound to assist the King of England with 12000 Launces and the King of France with 10000 Foot at his charge that had need So where Contribution is concluded for Money there are difficulties that do arise from the Person or Place where it must be kept for to deliver it to the hand of the strongest is not safe for fear they shall not be able to call him to account to lay it in a weak Place were to oppose it to the attempt and force of the strongest or to him that shall first take Armes but it has been usual the summe has been advanced not till after the War begun XII Leagues concluded by the Deputies of the Confederates there sometimes falls out a Difficulty who shall ratify and declares himself first In the League which was made between Francis the first the Pope and the Princes of Italy the King refused to ratify until the Pope and Venetians had ratify'd before him and in that he so cunningly wrought that he procured the Colleagues to declare and begin the War whilst that he treated secretly for himself to the end he might make his Conditions with more advantage this he declared was for fear those Italian foxes should shew him the like XIII Leagues made for an Enterprise succeed seldom according to the hope of the Allies if the Enterprise be long for besides the preparations be long the opinions divers in the pursuit the resolutions inconstant the interests of Princes or States in a League may change with time or with the practise of him against whom they are in League in withdrawing some one of them or making him to suffer more losse then the rest for seeing himself ill defended or succoured by his Confederate and that he was in a greater danger to loose then his Companions he then studies to retire and to make his accord apart as did the Venetians with the Turks after the losse of Cypresse XIV The ordinary causes of the Rupture of Leagues are distrust jealousy as if one hath had conference with the Enemy without the consent of the rest if that which serveth for the safety of one diminish the safety of the other inconstaney variety cowardize division usurpation without the consent of the others So if he treats with the Enemy not comprehending the other Allies but as adherents as Lewis the 12th left the League of the Venetians for that they had made a Truce with him and had presumed to name him only as an Adherent by the opinion of Bryan that if all the Subjects of England would make War with a Confederate Prince or Republique in League with the King of England without the assent of the King of England that such a War was no breach of the League and upon the same reason was the resolutions of the Judges in the the Duke of Norfolk's Case where the Question was whether the Lord Herise and other Subjects of the King of Scots that without his assent had wasted and burnt divers Towns in England and proclaimed Enemies were Enemies in Law within Statut of 25 E. 3. the League being between the English and Scots and resolved they were and that the League remain'd XV. The Succours that one Confederate must afford another Confederate according to the Laws of Leagues against Confederate is of a great consequence Three Princes Allied the one makes War against the other and demands succours from the third in this case if the Treaties of Alliance be only for Friendship it is certain he is not bound to give any succours But if the Treaty carries an Offensive League he must succour the most antient allied by a precedent alliance If the precedent Alliances have been made both at one time he must succour him that is allied in all Offensive and Defensive Leagues but if the League be Offensive and Defensive of either side he ought not to succour either but he may mediate a Peace and cause the difference to be judged by the Common Allies which being propounded with a Declaration that the refuser or having once submitted will not yield to Judgment that he will succour the other as the Swede and Swiss upon severall occasions hath done notwithstanding in point of State in such occasions they usually ballance their Estate and looking more to safety then Justice they succour him who being enforc't may weaken the powerful who is more to be feared yet to unjust Wars there is no obligation then certainly he ought to be preferred who hath a just cause of War XVI By the Laws of Alliances Princes may aide particular and Common Allies if they be wronged by one of the Allies But he which is not comprehended in the Treaty of Alliance cannot be defended against him that is allied without breach of the Alliance therefore Mediation in such cases is the only hopes of ahe oppressed which not having its effect if the oppressed put themselves into the protection of the Mediator they then become in the nature of his Subjects and then that Prince is oblidged to their succour and defence even against his Allies and this is by natural right XVII By the Laws of Leagues though the Oath binds only the Person yet the Promise binds the successor for though some do hold that Leagues do depend upon the
hourly before our eyes in those vast immensities that are daily appropriating and a planting in America from hence we learn what was the cause for which Men departed from the Primitive communion of things first of movables and then of immovables also to wit because when not content to feed upon that which of it self and the Earth singly brought forth to dwell in Caves to go naked â—…or clad with rinds of trees or skins of Beasts they had chosen a more exquisite kind of life there was need of Industry and using of Art in those matters which they should give themselves up to so likewise from hence we learn that Men not content to live in that innocent state of community how things went into Property not only by theact of the mind for they could not know the thoughts of one another what every one would have to be his own that they might abstain from it and many might desire the same thing but by a certain Copenant either express as by division or tacit as by occupation for so soon as Communion did not please them and division was not made it ought to be supposed an agreement amongst all that every one should have proper to him self what he seized on for every one might prefer himself before another in getting those things useful for the accommodating of Humane life Nature not being repugnant to the same IV. And though Property may seem to have swallow'd up all that right which arose from the common State of things yet that is not so for in the Law of Dominion extream necessity seems excepted Hence it is that in Navigation if at any time Victuals fail what every one hath ought to be brought forth for the common use and so in a Fire I may pull down or blow up my Neighbors House to save mine destroy the Suburbs to raise Lines or Forts to preserve the City thereby dig in any Mans Grounds for Salt-Peter cut in pieces the Tackling or Nets upon which my Ship is driven if it cannot be disintangled by other means all which are not introduced neither by the Civil Law nor the Municipal Laws of Countrys but are expounded by them with their proper diversities V. Nor is Property so far instated in Man but the same may again be devested by such means as stand with the Law of Nature and Nations and first by War the causes of which are assigned to be three Defence Recovery and Revenge But then such War must be just and he that undertakes it must be a Soveraign the just causes to make a War are our Princes or Countreys defence and that of our Allies the satisfaction of our injuries or theirs our just pretentions to an Estate or Right Divines have added another not only the defence of Religion but its advancement and propagation by the way of Arms and some the extirpation and rooting up a contrary Certainly War is too rough a hand too bad a means to plant Piety Sicut non Martyrem poena sic nec sortem pugna sed causa As it is not the punishment that makes the Martyr so it is not fighting that declares a valiant Man but fighting in a just cause in which who so shall resolvedly end his Life valiantly in respect of the cause that is in the defence of his Prince Religion or Country ought to be numbred amongst the Martyrs of God VI. War by the Laws of England is accounted when the Courts of Justice are shut up and the Judges and Ministers of the same cannot by Law protect Men from violence nor distribute Justice So when by Invasion Insurrection Rebellions or such like the current of Justice is stopt and shut up Et silent Leges inter arma then it is said to be time of War and the Tryall of this is by Records and Judges of the Courts of Justice and not by a Jury the Kings Standard appearing in the Feild or at Sea does likewise denote a War and if the Rebells against whom the Kings Host marches breaks a Prison the Goaler is not lyable for they are not such Rebels as are capable of being supprest by the ordinary Ministers of Justice but the subject matter is now only touching forraign War or that which is commenced for Dominion or Right or for the maintaning of the same in our peaceable possession according to Justice VII By the Law of Nature in such a War those things are acquired to us which are either equall to that which being due unto us we cannot otherwise obtain or else is much a mark as does infer damage to the guilty part by a fit measure of punishment And by the Laws of Nations not only he that wageth War on a just cause but every one in solemn War and without end and measure is master of all he taketh from the Enemy in that sense that by all Nations both himself and they that have title from him are to be maintained in the possession of such things which as to external effect we may call Dominion Cyrus in Xenophon it is an everlasting Law among Men that the Enemies City being taken their Goods and Money should be the conquerors for the Law in that matter is as a common agreement whereby the things taken in War become the Takers from the Enemy are judged to be taken away those things also which are taken away from the subjects of the Enemy and Goods so taken cannot by the Law of Nations be properly said taken but when the same are out of all probable hopes of recovery that is as Pomponius observes brought within the bounds or guards of the Enemy for says he such is a Person taken in War whom the Enemies have taken out of our and brought within their guards for till then he remains a Citizen and as the Law of Nations is the same reason of a Man so likewise of a thing and therefore Goods and Merchandize are properly said to be the Captors when they are carried inâ—…ra Praesidia of that Prince or State by whose Subject the same were taken or into the Fleet or into a Haven or some other place where the Navy of the Enemy rides for then it is that the recovery seems to be past all hope And with these Laws agrees the Common Law of this Realm which calls such a taking a Legalis Captio in Jure Belli and therefore in 7. R. 2. an action of Trespass was brought for a Ship and certain Merchandize taken away the Defendant pleaded that he did take them in le haut Mere oâ—… les Normans queuâ—… sont Enemies le Roy and it was adjudged that the same Plea was good In the year 1610 a Merchant had a Ship and Merchandize taken by a Spaniard being an Enemy a month after a Merchant Man with a Ship called The Little Richard retakes her from the Spaniard it was adjudged that such a possession of the Enemy divested the Owner of
his interrest and the retaking afterwards in Battel gained the Captors a property 'T is true the Civilians do hold that it is not every possession that qualifies such a Caption and makes it become the Captors but a firm possession that is when the prize doth pernoctare with the Enemy or remain in his possession by the space of 24 hours but as this is a new Law so it is conceiv'd to be against the antient as well as the modern practice of the Common Law for the Party in the antient Presidents doth not mention by their Plea that the prize did pernoctare with the Enemy and but general that the same was gain'd by Battle of the Enemy But if such a Recaption is by one of the King of Englands Ships of War their Restitution has been made the Party relieved paying his offering to the Admiral commonly called Salvage Mony VIII This right of changing of Dominion or Property by force of Arms is so odious that in the taking of Goods if by any possibility the right owners may have restitution the same hath been done And although a larger time then 24 hours happens between the capture and recapture and so may pernoctare with the Captor yet restitution may be made and therefore if one Enemy takes the Ship and Merchandize of another Enemy and brings her into the Ports or Havens of a Neuter Nation the Owners may seize her and the Admiral of that Neuter Nation may in some cases restore the Ship and Goods to their Owners and the Persons captive to their former liberty the reason is for that the same ought to have been brought infra Praesidia of that Prince or State by whose Subject she was taken A Dunkirker having seiz'd a Frenchmans Vessel super altum Mare sold the same with her lading at Weymouth whether it had been driven before she was brought infra Praesid Dom. Reg. Hispaniae the Frenchman coming into Port then claims the benefit of the Laws of Nations the King of England being then in amity with both their Princes and that restitution be made in which case it was resolved by all the Judges that if there be a Caption by Letters of Marque or by Piracy and the Vessel and Goods are not brought infra Praesidia of that Prince or State by whose Subject the same was taken the same will not divest the Property out of the Owner with this agrees the Law Civil and restitution may be made IX But if the Ships of War of Nations in enmity meet at Sea and there be a caption if there be that which is called a firm possession the Neuter Nation cannot re-deliver or make restitution of the thing so acquired and so it was adjudged where Samuel Pellagy with a Ship of War of the Emperor of Morocco took a Spanish Ship and brought the same into England that he could no ways be question'd for the same criminaliter or restitution to be made civiliter for that the King of Spain and the Morocco Emperor were enemies and the King of England in amity with both and that such a caption is not called Spoliatio sed Legalis captio in which there can be no restitution made upon neither of the Stat. of 31. H. 6. cap. 4. or 27. Ed. 3. cap. 13. for he that will sue to have restitution in England for Goods taken at Sea must prove that the Soveraign of the party was in amity with the King of England Secondly that he that took the Goods his Prince was at the time of the taking in amity with the Soveraign of him whose Goods were taken for if he which took them was in enmity with the Soveraign of him whose Goods were taken then the same will not amount unto a depredation or robbery but a lawful taking as every enemy might take of another A Spanish Merchant before the King and his Councel in Camera Scaccarii brought a Bill against divers English-Men wherein setting forth quod depradatus spoliatus fuit upon the Sea juxta partes Britannia per quendam Virum Bellicosum de Britannia de quadam Navi and of divers Merchandises therein which were brought into England and came into the hands of divers Engish-Men naming them and so pray'd process against them who came in and pleaded that in regard this depredation was done by a Stranger and not by the Subjects of the King of England they ought not to answer It was there resolv'd Quod quisquis extraneus who brings his Bill upon this Statute to have restitution debet probare quod tempore captionis fuit de amicitia Domini Regis and also quod ipse qui eum receperit spoliavit fuit etiam sub obedientia Regis vel de amicitia Domini Regis sive Principis quaerentis quia si fuerit inimicus sic ceperit bona tunc non fuit spoliatio nec depredatio sed legalis captio prout quilibet inimicus capit super unum alterum But if the King of England is in enemity with the States of Holland and one of their Ships of War takes a Merchant-Man of the King of Englands and afterwards another Ship of War of England meets the Dutch-Man and his prize and in aperto praelio regaines the prize there restitution is commonly made the Owners paying their Salvage so where the prize is recover'd by a Friend in amity or comes into his Ports restitution is likewise made but when such Goods become a lawful and just prize to the Captor then should the Admiral have a tenth part following the religious example of Abraham after his Victory over the five Kings X. He that is an Enemy may every where be assaulted according to the Laws of Nations Enemies may therefore be attaqu'd or slain on our own ground on our Enemies or on the Sea but to assault kill or spoil him in a Haven or Peaceable Port is not lawful but that proceeds not from their Persons but from his right that hath Empire there for Civil Societies have provided that no force be used in their Countreys against Men but that of Law and where that is open the right of hurting ceaseth the Carthaginean Fleet was at Anchor in Syphax Port who at that time was at peace with the Romans and Carthagineans Scipio unawars fell into the same Haven the Carthaginean Fleet being the stronger might easily have destroy'd the Romans but yet they durst not fight them the like did the Venetian who hindred the Greeks from assaulting the Turkish Fleet who ride at Anchor in a Haven then under the Government of that Republique so when the Venetian and Turkish Fleet met at Tunis though that very Port ackowledges the Ottoman Emperor but in regard they are in the nature of a Free Port to themselves and those that come there they would provide for the Peace of the same and interdicted any hostile attempt to be there made But they of Hamborough were
not so kind to the English when the Dutch Fleet fell into their Road where rid at the same time some English Merchants Men whom they assaulted took burnt and spoil'd for which action and not preserving the Peace of their Port they wereby the Law of Nations adjudg'd to answer the dammage and I think have pay'd most or all of it since But Enemies in their own Ports may be assaulted burnt or destroy'd by the Law of Armes XI If the Ships of any Nation happens to arrive in any of the King of Englands Ports and afterwards and before their departure a War breaks out they may be secured priviledged without harm of Body or Goods but under this limitation till it be known to the King how that Prince or Republique of those whose Subjects the Parties are have used and treated those of our Nation in their Ports But if any should be so bold as to visit our Ports after a War is begun they are to be dealt with as Enemies XII By the Laws of Nations generally all things are the Captors which he takes from his Enemy or which his Enemies gain'd from another by force of Arms so likewise all those Goods that he shall find in his Enemies custody But then it must be apparently manifest and evidently prov'd that it is really the Enemys for if an English-Man should have Goods in the custody of a Dutch Factor at Cales and a War should break out between that Prince and that Republique yet are not the Goods of the English-Man subject to the seizure of the Spaniard it being apparent the owner is not a Subject of their Enemies So likewise if the Goods of Friends are found in the Ships of Enemies this does not ipso facto subject the same to be prize by the Laws of Nations though it be a violent presumption and may justly bear a legal examination till which there may be a securing of the prize till adjudication shall pass So on the other hand if the Ships of Friends shall be fraighted out to carry the Goods of Enemies this may subject them to be prize especially if the Goods shall be laden aboard by the consent or privity of the Master or Skipper though in France they have subjected and involv'd the innocent with the nocent and making both of them prize in the late Flemish Wars with England the Ostenders became obsequious serviceable with their Ships to the Traffick and commerce of both Nations memorable was the action when the War was between the two Republiques Venice and Genoa the Grecian Ships being then imploy'd as those of Ostend were search'd and the Enemies pull'd out but no other matter done however it is most certain let the Commission or Protection of such Ships be what they will if Men will venture to trade under such a cloak it behoves them that the Skipper and his Crew be entirely ignorant for it is his Action that will go far in the freeing or making absolute the prize and Goods so made prize the property is immediately gone and changed be the Owner be who he will he never can claim the same for the Laws of Nations made the Enemies first masters by external Dominion and then by Conquest gave the property to the Captor following that Judgement of the Romans whatsoever they got of their Enemies by valour they would transmit to their Posterity by right XIII 'T is not against nature to spoil the Goods of him whom it is lawful to kill and by the Laws of Nations it is permitted that the Goods of the Enemies may be as well spoiled as taken and Polybius observes that all things of the Enemies may be spoiled their Ships Goods Forts c. XIV And though it may happen sometimes that a War may break out and there may be no public denouncing or proclaiming the same that if a Friend or Neuter should assist an Enemy with Contraband Goods that is Armes c. whether upon such a caption the Goods may be made prize the resolution of which will depend on these Considerations First by Natural Law where either force offer'd is repelled or punishment exacted of one that hath offended there needs no denunciation for Princes are not to stand debating with words or arguments being injured beyond words For War undertaken to resist violence is proclaim'd not by an Herauld but by Nature for it is no more then the invading of one for another or taking of the Goods of the debtor to answer the creditor damage Secondly Interpellation is introduced by the Laws of Nations whereby Princes or Republiques having received injuries may apparently shew that they had no other way to recover their own or that which is due to them for such Interpellation following after injuries committed constitutes that Prince or State in a fault that shall not render satisfaction Thirdly admitting that Interpellation hath gone and satisfaction hath been required for the dammage and no satisfactory return hath been made whether then the Ships or Territories of the Enemy may be assaulted and for that it has been conceiv'd they may for denunciation is no more but to signify that the Parties against whom the same is commenc't are unjust and will not do right and therefore War is begun by the Supream Power now Princes or Republiques having done that which by the Law of Nature they were not oblig'd to do that is after a wrong done abstain'd from War by Friendly demanding of satisfaction or reparation which is requir'd only by the Laws of Nations and publique Justice being deny'd them there remains no other or further obligation on the State the same amounting and indeed is an apparent defiance and Proclamation is no other So that if Indiction is not necessary the caption of such Ships may subject them to be prize perhaps the Leagues of the several Countries may have provided for cases of the like nature XV. And although the Goods of Friends according to the circumstance of the case may be preserv'd by adjudication and restor'd to their owner yet all manner of Goods have not that priviledge for though the Freedom of Trade preserves the Goods of Friends against the rigour of War yet it does not those Goods that supplies the Enemy for War as Mony Victuals Ships Armes and other things belonging thereto for to supply an Enemy that invades our right or seeks the destruction of our Countries is a liberality not to be allow'd of and it certainly stands with necessity that if I cannot safely defend my self or endamage my Enemy without intercepting the things sent it may justly be done but when such Goods are seized whether they give the Captor a right of property or a right by retention to compel that neuter Nation to give Caution for the future by Hostages or Pledges not to supply the Enemy may be a question The Romans who had brought Victuals to the Enemies of Carthage were taken by the
Carthaginians and again rendred upon request the Hollanders in the heat of the War between the Sweden and Polland never suffer'd themselves to be interdicted with either Nation the same State when they had War with Spain they intercepted the French Ships passing to or for Spain but restor'd them And Pompey in the History of the Mitridatie War set a Guard on the Bosphorus to observe if any Merchant sailed in thither whosoever did and was taken was surely put to death so Demetrius when he possessed Attica with his Army having blockt up Athens hang'd up both the Master and Commander of a Ship who attempted to bring in Corn the Hollanders having blockt up Dunkirk some English Merchants Ships did attempt to enter but were deny'd by the Hollanders Most certain if a Neuter Nation hath had notice of the War and caution given them as is usual not to supply the Enemy with counterband Goods as they call them if such be the case the prize is become absolute the Captors So Queen Elizabeth did when she seized on the 60 Sail of the Hansiatique Towns who were carrying of Goods ropas contrabanda to the Spaniard her Enemy she condemned them and made them absolute prize for as neuters are not compellable by the rigour of War to give any thing against their will so must they not against the will of each Party afford such things as may dammage one another for Persons or Nations having had notice of the War which is done and caution given sometimes by Proclamation or some other publick Edict signifying the right of their cause shall afterwards gather to and assist the Enemy whether associates neuters or Subjects the same yeilds a right so far as to them not only to the charge and dammage that may fall thereby by making them prize but may make them obnoxious to punishment For it is the duty of those that abstain from War to do nothing for the strengthning of him who maintains a bad cause whereby the motions of him that wageth a just War may be retarded and where the cause is doubtful they ought to shew themselves equall to both permitting passage Baking Dressing and affording provision for each Army or Navy L. Aemilius Praetor accused the Tejans for victualling the Enemy's Navy promising them Wine adding that unless they would do the like for the Navy of the Romans he would account them as Enemies but common experience hath taught Nations and Kingdoms when they declare a Neutrality to make provision by way of League with both the Nations at War that when it should happen the Armies of both or any draw towards their Territories it might be lawful for them to exhibite the Common offices of humanity to both The Venetians having so far prevail'd against the Turk in the Island of Candia that they held the City of Canea straightly besieg'd by Sea and Land whereby they had reduc'd it to great extremities it happened at that time to ride about 7 stout Merchant Men in the Port at Smirna the General of the Venetians being jealous of their joyning with the Turkish Armado desired to know their minds who answer'd they would prove neuter in the dispute but afterwards though at first the Captains all refused upon the threatning of the Grand-Seignior to lay an Embargoe on all the Goods of the English Nation in his Dominion and to make slaves of their Persons those Captains were forced to joyn with the Turkish Forces who beat the Venetians from before Canea and so reliev'd it the Venetians Embassador complain'd to the then Powers in England but could have no relief being answer'd that those Ships in the Turks power were Subject to it CHAP. II. Of Letters of Marque and Reprizal I. Of Reprizals generally considered and for what II. That Reprizals are unlawful by the Laws of Nature and the Romans III. That the same by the Laws of Nations are now become lawful IV. The advantage that accrues by the same V. The causes that requires the same VI. Of the things necessarily requisite for the observing them VII Reprizals ordinary and extraordinary according to the Laws of England VIII Of the Interest of Princes of granting them and Letters of Request IX The difference of injustice offer'd to Subjects and Forraigners when and where the one is concluded and not the other X. What is meant by denying of right and doing of injustice and where Reprizals take rooting and where not XI Of Reprizals awarded in cases ordinary XII Of Reprizals issuing forth in cases extraordinary XIII Of Letters of Request precedent allotting a time certain for satisfaction XIV Domicil not origination subject to Reprize XV. Reprizal not granted if the spoil was occasioned by War XVI Of Persons exempt from Reprizal by the Laws of Nations Canon and Civil Law XVII Where Ships or Goods are subject to Reprize and where not XVIII When right deny'd whether life is engag'd and whether Persons refusing to yeild may be slain XIX Goods taken by Reprize where the Property is altered and where otherwise XX. Where many Ships are present and one becomes Captor whether the spoil must be divided or remain his that became Master XXI Of the Captors duties afâ—…ter a Prize taken and its exemption from Custom XXII Restitution when to be made after the debt satisfy'd XXIII Contribution whether it can be by the Laws of England to him whose Goods are taken by Reprize XXIV Commissions awarded for the enquiring of depredations under which the Parties may probaably obtain recompence I. REprizals known to us by the word of Represalie or Leters of Marque in Law have other appellations as Pignoratio Clarigatio and Androlepsia c. In imitation of that Androlepsia among the Greeks to seize the three next Citizens of that Place whether the murderer had fled and was always given to him who required revenge of the offender the word Reprisals is from the French reprendre and reprise i. e. resumptio that is to re-take or take again one thing for another like our Saxon Withernam Though the Art is now become lawful by the Law indeed the consent of Nations yet it must have its Standard mark for the same cannot be done by any private authority but only by the power of that Prince or Republique whose Subject the injur'd Person is nor is the same grantable by authority but where the Party injur'd has Justice deny'd him or the same illegally delay'd II. By the Law of Nature no Man is bound for anothers Act but only the successor of his Estate for that Goods and Estate should pass with their Burdens was introduc'd together with the Dominion of things hence it is that the Son cannot be molested for the debt of his Father neither the Wife for the debt of the Husband nor the Husband for the debt of the Wife the same being against natural equity that one should be troubled for the debt of another So it is
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
III. Though Pyrats are called enemies yet are they not properly so termed For he is an enemy saies Cicero who hath a Common-wealth a Court a Treasury consent and concord of Citizens and some way if occasion be of Peace and League and therefore a Company of Pyrats or Freebooters are not a Common-wealth though perhaps they may keep a kind of equallity among themselves without which no Company is able to consist and though it is seldom they are without fault yet hold society to maintain right and they do right to others if not in all things according to the Law of Nature which among many people is in part obliterated at least according to agreements made with many other Nations or according to Custom So the Greecks at what time it was accounted lawful to take spoil at Sea abstained from slaughter and populations and from stealing Oxen that plowed as the Scholiast upon Thucydides observes and other Nations living also upon the spoil when they were come home from Sea sent unto the Owners to redeem if they pleased at an equal rate what they were robbed of at Sea and at this day if a Ship hath the Emperor of Barbarys protection the Pyrats of that Nation if they seize will restore and if there be no protection yet if taken within sight of their Castles the Prize is not absolute but if resistance is made and there be a Caption she then becomes the Captors for ever as the price of blood IV. Pyrats and Robbers that make not a Society i. e. such a Society as the Laws of Nations accounts lawful are not to have any succour by the Law of Nations Tiberius when Tacfarinas had sent Legates to him he was displeased that both a Traytor and a Pyrat should use the manner of an Enemy as Tacitus hath it yet sometimes such Men Faith being given them obtain the right of Legation as the Fugitives in the Pyrenean Forrest and the Banditi at Naples and Solyman the Magnificent having entertained Barbarossa the famous Pyrat sent word to the Venetians that they should use him and esteem him no more as a Pyrat but one of their own Port. V. If a Ship is assaulted by a Pyrat for redemption of which the Master becomes a Slave to the Captors by the Law Maritime the Ship and lading are tacitly oblidged for his redemption by a general contribution But if a Pyrat shall feign himself stronded and to duccoy the Merchant Man for his releif shall fire his Guns or wave his Colours who accordingly varies his course for his assistance and the Pyrat enters him for redemption of which he becomes a Slave to the Pyrat there contribution shall not be made and if the Ship loses any of her lading the Master shall answer the same VI. A Pyrat attacques a Merchant Man and enters her for Redemption of which the Master gives his Oath at a time and place to pay the Pyrat a summe certain by some it hath been held that the Master commits not perjury if the price promised for redemption be not brought according to the Oath because that a Pyrat is not a determinate but a common Enemy of all with whom neither Faith nor Oath is to be kept but that is no reason for the assoiling of the vow for though the Person be deficient yet the Just God is concerned nor can that Person that hath promised a thing satisfy his conscience after he hath once delivered it to him to recover it back again for the words in an Oath as to God are to be understood most simply and with effect and therefore he that returned secretly to the Enemy and again departed made not good his Oath concerning his return VII If an English Man commit Pyracy be it upon the Subject of any Prince or Republique in amity with the Crown of England they are within the purview of the Stat. of 28 H. 8 and so it was held where one Winterson Smith and others had robbed a Ship of one Maturine Gantier belonging to Bourdeaux and bound from thence with French Wines for England and that the same was felony by the Law Maritime and the Parties were convicted of the same VIII And so it is if the Subject of any other Nation or Kingdom being in amity with the King of England commit Pyracy on the Ships or Goods of the English the same is felony and punishable by virtute of the Stat. and so it was adjudged where one Careless Captain of a French Man of War of about 40 Tuns and divers others did set upon four Merchant Men going from the Port of Bristoll to Carmarthen did rob them of about 1000 l. for which he and the rest were arraigned and found guilty of the Pyracy But before the Stat. of 25 Ed. 3. if the Subjects of a Forreign Nation and some English had joyned together and had committed Pyracy it had been Treason in the English and felony in the Forreigners And so it was said by Shard where a Norman being Commander of a Ship had together with some English committed robberies on the Sea being taken were arraigned and found guilty the Norman of felony and the English of treason who accordingly were drawn and hang'd But now at this day they both receive Judgement as felons by the Laws Maritime IX If the Subjects in enemity with the Crown of England be Sailers aboard an English Pyrat with other English and then a robbery is committed by them and afterwards are taken it is felony without controversy in the English but not in the Strangers for they cannot be tryed by virtue of the Commission upon the Statut for it was no pyracy in them but the deprdeation of an Enemy for which they shall receive a tryal by Martial Law and Judgement accordingly X. Pyracy committed by the Subjects of the French King or of any other Prince or Republique in amity with the Crown of England upon the British Seas are punishable properly by the Crown of England only for the Kings of the same have istud regimen dominium exclusive of the Kings of France and all other Princes and States whatsoever XI If Pyracy be committed on the Ocean and the Pyrats in the attempt there happen to be overcome the Captors are not oblidged to bring them to any Port but may exoppose them immediately to punishment by hanging them up at the main yard end before a departure for the old natural liberty remains in places where are no judgements And therefore at this day if a Ship shall be in on a Voyage to the West-Indies or on a Discovery of those parts of the unknown World and in her way be assaulted by a Pyrat but in the attempt overcomes the Pyrat by the Laws Maritime the Vessel is become the Captors and they may execute such Beasts of prey immediately withhout any solemnity of condemnation XII So likewise if a Ship shall be assaulted by Pyrats
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
the same to what condition they have been reduced and made to acknowledge that Dominion and Superiority to that Crown under which their Ancestors humbly besought the acceptance of the Soveraignty of the Netherlands might be annexed and protected is now fresh in our memories so high and of so great Importance is this Dominion and Soveraignty signified by the Duty of the Flagg in the British circumjacent Seas CHAP. VI. Of the Right of Pressing or seizing of Ships or Mariners for service publique I. That such Right is excepted in the Law of Dominion II. Whether the Ships of Nations who are in war at the same time may be pressed the danger being equal III. Whether this Right extends to Ships to fight and no â—…more or gives a power to trade IV. By the Laws of England the King may seize V. The reason why such power was vesâ—…ed in the Admiral VI. That such a right of compelling Men to serve in Naval Expeditions may be VII Objections legal refuted VIII Of the antient punishment of such deserters of the Kings service IX Whether it be lawful for a private Man to execute Justice on such as fly and desert the service X. Where a General Commission is given to Men to execute Justice I. THe Civil Law though it can command nothing which the Law of Nature forbids nor forbid what it commands nevertheless it may circumscribe natural liberty and prohibite what was naturally lawful and also by its force antevert that very Dominion which is naturally to be acquired Hence it is that Princes by the Law of Nations may acquire a Right of use of things that do belong to private Persons for property hath not as hath been said swallow'd up all that Right which rose from the Common State of things for as all Laws are to be construed as neer as possible to the intention of the Makers so we must consider what was the mind of those that first introduced singular Dominions now the Rule to construe that must be as neer as possible to naturall equity and that in extream necessity that old right of using things should revive as if the things had remained common the same standing with the interest of all humane constitutions and therefore in the Law of Dominion extream necessity seems excepted Hence it is that the Vessels and Ships of what nature or Nation soever that shall be found riding in the Port or Havens of any Prince or State may be seized on and imploy'd upon any service of that Soverain that shall seize the same being but a harmless utility not divesting the Owners of their inteâ—…â—…r property II. If a Ship of the King of Denmark be in the Port of London and the Swede is in War with that Prince and it happens at that time the King of Britain is in War with the Spaniard now the possessor is here pressed with an equal necessity and by the same argument is rather obliged to the defense of his own Country then another whether by the Law of Nations the Ship ought to be detained hath been doubted most certain they may who would not pluck a Shipwrackt Man from his planck or a wounded Man from his horse rather then suffer himself to perish to slight which is a sin and to preserve the highest of wisdom besides in the taking of the Vessel the right is not taken from the Owner but only the use which when the necessity is over there is a condition of restoring annexed tacitly to such a seizure And doubtless the same right remains to seize the Ships of War of any Nations as well as those of Private interrest the which may be imploy'd as occasion shall be present So the Grecians seized on Ships of all Nations that were in Ports by the advice of Xenophon but in the time provided food and wages to the Mariners III. Whether this Right extends so far as to give Princes a power to seize in order to traffique may be some question certainly if the traffique be for such commodities as Masts Timber Tar Powder shot or other commodities or accoutrements of Armes or Naval provisions of offence necessary for the defence of the Realm it may be done but then it is just fraight should be pay'd for what hurt can it do me to let another my Boat to pass over a ford if he rewards me and if that be answered the Owners are at no prejudice for this is but a harmeless utility IV. By the Laws of England there is no question but the King may seize and it appears by very many antient Records that he might do it and it was one of the Articles of enquiry amongst others Item soit in quis de Neifs qui sont arrestez pour le service du Roy ou de l'Admiral debreissant le Arrest then follows Ordonne estoit en temps du Roy Richard le primier a Grimsby per advise de plusteurs Seigneurs du Royaume que quand Neifs seront arrestez c. and that upon such Arrests broken the parties might be punished and fined Again Inquiratur si arrestatus ad serviendum Regi fregit arrestum hujusmodi transgressor stat in gratia Regia sive Admiralli sui ultrum voluerint committere Carceribus mancipandum vel finem facere in hac parte si arrestum hujusmodi factum manifestum fuerit cognitum If the Admiral by the Kings Command arrests any Ships for the Kings service and he or his Livetenant return and certify the Arrest or a List of the Ships arrested into Chancery no Master or Owner of the Ships so arrested shall be received to plead against the return pur ceo que l'Admiral son Lieuâ—…enant sont de Record And if the Ship so arrested break the arrest and the Master or Owner thereof be indicted and convicted devant l'Admiral by the Oath of 12 Men the Ship shall be confiscate to the King which power the General maintains in all places where he has power and the same seems to be provided for in the latter Clause of 15 R. 2. Ca. 3. King Ethelred his Bishops and Nobles in the General Councel of Enham an 1009 for the setting out a Fleet every year and the punishment of those who hurt or spoiled any Ship or deserted the service especially if the King was present in the Expedition amongst others it was enacted Si quis Navem in Reipub. expeditionem designatam vitiaverit damnum integre restitutio Pacem Regis violatam compensato si verum ita prorsus coruperit ut deinceps nihili habeatur plenam luito injuriam laesam praeterea Majestatem So Sir Henry Spelmans Version out of the Saxon Copy renders it but the antient Copy hath it more largely Naves per singulos annos ob paâ—…ae defensionem munitionem praeparentur postque Sacrosanctum Pascha cum cunctis utensilibus competentibus simul congregentur qua igitur etiam poena
digni sunt qui Navium detrimentum in aliquibus perficiunt notum esse cupimus quicunque aliquam ex Navibus per quampiam inertiam vel incuriam vell negligentiam corruperit tamen recuperabilis sit is Navis corruptelam vel fracturam ejusdem per solidam prius recuperet Regique deinde eaque pro ejusdem munitionis fractura sibimet pertenent rite persolvat Most certain it is that the Kings of England have in all Ages by their Writs and Patents commanded not only the Admiral but the Wardens of the Cinque Ports and others to arrest and provide Ships of War and other Vessels and impress and provide Masters of Ships Sea Men Mariners and all other necessary Tackle Arms and provisions for Ships for the defense of the Sea and the Realm against forreign Enemies or for transporting of Armies paying their freight if not bound there by tenure as well as to elect and provide all sorts of Souldiers Carpenters and others Officers to be assistants in their several Expeditions But Firshermen or Mariners pressed for the Service are not to be imploy'd as Souldiers but only as Mariners unless it be in casâ—…s of great necessity or bound thereunto by tenure Custom or Covenant And Water-Men that shall withdraw themselves in time of pressing shall suffer a fortnights imprisonment and be prohibited to row on the Thames V. The reason why the Admirals had such power given them was because they being sometimes called Capitanei and Gubernatores Flotarum they had their ordering and Governing of the Ships of War and the raising and fitting up such Ships for the Navies as they thought fit other times called Custodes Maritimarum partium their duty being to provide all Naval provisions as well to supply the Kings Navies occasions as to gratify another of the Kings Friends when distress should constrain them to touch in his Ports that his Subjects might receive the like retaliation again they were called Capitanei Nautarum Marinellorum as in reference for the deciding all differences amongst those in the Kings service and punishing of such as transgressed and as the place was great so the power was large especially in all things belonging to the Navy-Royall in which they had the Supream rule and Government in all things belonging to it He sate formerly in the Kings House and there kept his Court as the French Admirals do at this day at the Marble-Table in the Kings House at Paris It is lawful for every Man to addict and yield up himself to whom he pleaseth as appears both out of the Hebrew Law and Roman Law why then may not any people being at their own dispose give up themselves to their Prince or Soveraign so as to transcribe the right of commanding their aide and help as often as need shall require it is not here inquired what may be presumed in a doubtful case but what may be done in point of right most certain such a power may well be done and that grounded on great reason first if the Common-wealth should happen to be invaded by such a one as seeks not only the subversion of the Government but the destruction of the people and they can find no other way to preserve themselves but that the supream power should be vested with such such a Prerogative as to inforce or presse the Inhabitants to serve in Armes in the defence of the same and the contempt of which to punish or if they should be opprest with want and that supplies of provisions can no waies be had but by compelling another by force to exhibite the common offices of humanity to a Nation in whose Territories a famine rages that the Inhabitants should on such extraordinary occasions be compelled by force to serve in Armes And this Dominion may be obtained several waies either by a voluntary resignation to a Conqueror as they of Capua to the Romanes Our Land the Temples of our Gods all Divine and humane things we yield up into your hands O ye Conscript Fathers again Freedom may be granted to all by a Conqueror except Mariners which should in cases of necessity be excepted or that some Prince who will not suffer any Mariner to go out of his Dominions without subjecting themselves to such a reasonable command and the Majority of Nations on such grounds may abdicate from a part of them the entire Freedom of that member Nor are their examples of this kind wanting the Germans are every one Master of his owne house but are almost on every occasion subject to their Lords especially in their Goods The Irish Cosherers which were reprehendinations when the Chief Lord and his retinue came to his Tenants House and fed upon their provisions till they were spent all being solely at their devotion And as to the Sea the King of Britain may at this day restrain Merchants or Mariners to pass out of the Realm without licence and the various tenures that are introduced which is presumed were since the Conquest were no other but the will of the Conqueror for the right is not measured by the excellency of this or that form but by the will VII And though it hath been conceived by some that the King cannot presse Men to serve in his Wars giving their reason that of old he was to be served either by those that held by tenure those that covenanted by Indenture to provide Men or those who contracted with the Kings Officers for wages and entered into pay or those that were in Prison for the Kings debts but that only extended to those Wars that were by Land not one word in all those acts or Mr. Rolls that any waies mention the least of Mariners and yet what vast Fleets were in those daies but on the other hand it hath been alwaies accustomed to presse such sort of Men for the Naval Expeditions the antient records that mentions such Persons subject to presse by Law is that of 49 E. 3. commonly called The Inquisition of Queenborrough wherein it was expresly in charge amongst others to inquire of those Mariners that were pressed for the Kings Service and deserted the same So likewise by those other Articles translated by Roughton it is expresse in charge to the Jury to present those that being prest to serve brake the Kings Arrest in order to their punishment and in those daies it was esteem'd an high offence and the Oath which the Jury then took being impanelled was this This here see My Lord the Admiral that I Ionathan Nash shall well and truly enquire for our Lord the King and well and truly at this time then serve at this Court of th' Admiralty present at moch as I have acknowleche or may have by information of eny of my fellows of all mane Articles or circunstances that touchen the Court of the Admirate and Law of the Sea the which shall be grate to me at this time and I thereupon sworne or
to extream necessity yet it follows not upon that that they who so conformed sinned or did that which was absolutely unlawfull for we well know that reason of State oft calls for Sacrifices where there is no fault to expiate Ostrocisme and Jealousy make away those who are known to deserve most but in strickt right which is the term of this question the just governour ought to look upon them as more unfortunate then faulty CHAP. XIV Of the Naval Military part I. The advantage that Princes have by a good Commander II. The love that naturally proceeds from the Mariners to those that are valiant and generous III. Princes in prudence ought not to listen too much to the complaint against Commanders IV. Of the faults generally considered in Soldiers and Mariners V. Of the punishments that generally wait on such offenders VI. Of Drunkeness Swearing and other such sort of impieties not to be suffered in Fleets VII Spies if lawfull to use them by the Laws of Nations but being deprehended are to suffer death and how they are to be dealt withall by the Laws of England VIII It is not lawfull for a Friend or Neuter to relieve an Enemy and Persons so offending how punisht IX Ships taken as prize the Ship papers and other matters concerning the same are to be preserved X. Of things taken and acquired in War how the right of them becomes vested in the Captors and how that is to be understood by the Law of Arms. XI To steal the Cables or other furniture of the King of England's Ships how punishable at this day XII Ships surrendred and voluntarily surrendred how to be dealt with and whether those that shall resist it if entered by force whether quarter may be refused XIII Ships of War generally ought not to be yielded but if entered or disabled whether they may not accept of a quarter standing with the Oath called Sacramentum Militare XIV Of obeying Orders the same ought to be punctually to be follow'd and if broken though the Act succeeds well whether the same subjects not the actor to punishment XV. of the obligation incumbent on Commanders and Souldiers to behave themselves valiantly and the right of slaying an Enemy where lawfull XVI Ships how oblidged by the Law of Arms for the assistance of one another and of the duty of those that have Fleets under their Convoy XVII An Enemy beaten ought to be pursued and how far it is lawfull to slay such flying with their lives in their hands by the Laws of Arms and how the reeking sword ought to be governed XVIII Persons exempted from the sword by the Laws of Nature Nations Civil and Canon and by the Municipall Laws of some Countries XIX Mutining how esteemed valued and punished at this day by the practise of Armies and by the Laws of England XX. Whether it be lawfull to decoy the Subjects Souldiers or Mariners of an Enemy to forsake his Prince or General and to bring over his Men Ships or Arms and where by Law they may be received and how such deserters may be punished by the Laws of Nations and of England XXI Of Seducers Message Carriers and Decoyers of Souldiers how to be handled by the Law of Arm. XXII Of those that shall disobey or strike their superiour Officers how punishable XXIII Of mutening and those that shall act in the same how punished though they have a just cause of complaint XXIV Of the care incumbent on Commanders and Masters of the Great Ships as in reference to their safety and the punishment of wilfull burning and destroying them XXV Of the general offences at Sea how punished XXVI Court Martials how erected and what operation their Judgements have and upon whom XXVII Judges and Advocates Power as in reference to give an Oath and the Admiral 's power how limited to the punishing of offences XXVIII Of maimed Souldiers and Mariners and the provisions that the Law makes for them at this day XXIX Of Triumphs I. AN Excellent Generall is an evidence of the Fortune of a Prince and the Instrument that occasions the happiness of a Kingdom and therefore when GOD makes choise of a Person to repair the disorders of the World or the good of a particular State then is his care shewed in the furnishing him with necessary Principalls to undertake great matters the thoughts are put in his Soul by that eternall Commander to execute he troubles and confounds his Enemies and leads him as by the hand â—…o Victories and Triumphs And one of the greatest expedients whereof he serves himself for this purpose is to raise unto him excellent Men both in Courage and Conduct to whom he communicates his care and who help him to bear the weight of Affairs Alexander had never conquered Asia or made the Indies to tremble but for Ephestion Parmenio and Clytus Caesar gained many a Bataill by his Lievtenants and the fairest Empire of the World which ambition and evil of the times had divided into 3 parts was reduced under the Dominion of Augustus by the valour of Agrippa Justinian triumphed over Persia and destroyed the Vandalls in Affrica and the Goths in Italy by the aid of Bellisarus and Narcete And it is most certain that Noble Commanders are the Glory of their Princes and happiness of the People on the other hand base cowardly and treacherous Generals are the shame of the one and the dispair of the other II. Hence it is that Souldiers and Mariners draw their lines either of love even to the mouth of Canons with a good Generall or mutiny and hate to the main yard end against one that is bad for to obey them who are not their Soveraigns when they do them hurt when they insult and are cruell in cold blood and base cowardly or treacherous in Bataill is a sad necessity for them and a hard essay of patience yet must they be obeyed and the Souldiers and Mariners must not rebell or repine but submit till the Soveraign redresses the misfortunes III. Again Princes ought not to listen too much to the mutinous demands of the Crew or any others whose ambition watches their ruin whereby to conceive anger against this Commanders for it is easier to purge out the choler and discontent that is got under the hatches then to provide Commanders of Conduct Courage and Faithfulness to govern their Expeditions Bellisarius that most excellent Commander who had no other crime then his Reputation and was not culpable but that he was powerfull having conquered Persia subdued Africa humbled the Goths in Italy lead Kings in Triumph and made appear to Constantinople somewhat of Old Rome an Idea of the Antient Spendor of that proud Reipublique after all his Eminent Services this Great Person is abandoned to Envy a suspition ill grounded distroys the value of so many Services and a simple jealousy of State wipes them out of the memory of his Prince but he rests not there for the demeanor had
against any of the Articles for the Government of any of His Majesties Ships of War within the Narrow Seas wherein the pains of death are to be inflicted execution of such Sentence ought not to be made without leave of the Lord Admiral this of mutiny is totally excepted for such may be executed immediately XX. It is not lawful for Princes or States to make of their Enemies Traytors or to desert the Service of their Prince or to bring over their Ships Ordinance Provisions or Arms for as it is not lawful for any Subject to do the same so likewise to tempt him for he that gives a cause of sinning to another sins also himself but if a Man will voluntarily without any other impulse then his own bring over the Ships or Armies or deserts the Service of his Prince to serve another this though a fault in the desertor is not in the reciever We recieve a fugitive by the Law of War saith Celsus that is it is not against the Law of War to admit him who having deserted his Princes part elected his Enenemies nor are such to be rendred except it shall be agreed as in the Peace of Lewis the 11th However such sort of gamsters if caught are to be severely punished and therefore it is provided that if any Sea Captain Officer or Sea-Man that shall betray his trust or turn to the Enemy Pyrat or Rebel or run away with their Ship or Ordinance Ammunition or Provision to the weakning of the Service or yield the same up to the Enemy Pyrat or Rebel shall be punished with death so likewise if any shall desert the Service or the Employment which they are in a Ship-board or shall run away or entice any other so to do they are subject to the like pain of death And by the Law of Nations such desertors that run away from their Colours or Fleet before Peace proclaimed and concluded all Persons of that Prince from whom they fled have a right indulged to them to execute publique revenge XXI By the Law of Nations Spyes may be sent to view and survey the Enemies Force Fleet station and make discovery of whatsoever may give advantage to the Persons sending as is mentioned above but being deprehended they are to be put to death and therefore if any Person shall come from or be found in the nature of Spies to bring any seducing Letters or Messages from any Enemy or Rebel or shall attempt or endeavour to corrupt any Captain Officer Mariner or other of the Navy or Fleet to betray his or their trust or yield up any Ship or Ammunition or turn to the Enemy or Rebel shall be punished with death XXII Souldiers and Mariners ow all respect and duty to their Superior Officers and therefore when they are in anger they ought to avoyd them but above all not to quarrel with or give them any provoking language and therefore by the Law of Arms a Souldier who hath resisted his Captain willing to chastise him if he hath laid hold on his rod is casheer'd if he purposely break it or laid violent hands upon his Captain he dyes And by the Laws of England if any Person shall presume to quarrel with his Superior Officer he shall suffer severe punishment and if he strikes him shall suffer death or otherwise as a Court Marshal shall adjudge the matter to deserve XXIII And though Mariners and Souldiers may have just cause of complaint as that their victuals or provisions are not good yet must they not mutiny or rebel whereby to distract or confound the whole Crew but must make a civil and humble address to their Commander that the same may be amended and if the case be such that the Commander cannot redress the same by going to Port to supply the exigencies without detriment of the Fleet as if ready to engage or the like they must like Men and Souldiers bear with the extreamity considering that it is better that some Men should perish nay the whole Crew in one Ship then the whole Fleet nay perhaps the whole Kingdom be destroyed And therefore if any in the Fleet find cause of complaint of the unwholsomness of his victuals or upon other just ground he shall quietly make the same known to his Superior or Captain or Commander in chief as the occasion may deserve that such present remedy may be had as the matter may require and the said Superior or Commander is to cause the same to be presently remedied accordingly but no Person upon any such or other pretence shall privately attempt to stir up any disturbance upon pain of such severe punishment as a Court Martial shall think fit to inflict XXIV And as the Law doth provide that there be no waste or spoil of the Kings provision or imbezlement of the same so likewise that care be taken the Ships of War neither through negligence or wilfulness be stranded split or hazarded upon severe penalties In fights and when great Fleets are out there are generally instructions appointed for all Masters Pilots Ketches Hoyes and Smacks who are to attend the Fleet and to give them notice of the Roads Coasts Sands Rocks and the like and they have particular stations allotted them and orders given that if they shall find less water then such a proportion they then give a signall as they are directed to give and continue their signalls till they are answer'd from the Capitall Ships But in time of Fight they generally lay away their head from the Fleet and keep their lead and if they meet with such a proportion of water as is within their directions they are to give such signal as they recieve Orders for and stand off from the danger but the wilful burning of any Ship or Magazine-store of powder Ship-boat Ketch Hoy or Vessel or Tackle or furniture thereunto belonging not appertaining to an Enemy or Rebel shall be punished with death XXV There are other faults often committed by the Crew the which the Law does punish as a quarrelling a Ship-board using provoking speeches tending to make quarrel or disturbance murthers wilful killing of any Man Robbery Theft and the unnatural sin of Sodomy and Buggery committed with Man or Beast all which and all other faults and misdemeanors are punished with death or according to the Laws and Customs in such cases used at Sea and when any Persons have committed any of the offences particularly mentioned in the Stat. of 13 Car. 2. Cap. 9. and contained in the Articles or any others and for the which they shall be committed the Provost Marshal is to take them into custody and not suffer them to escape and all Officers and Sea-Men are to be aiding and assisting to Officers for the detecting and apprehending of offenders Touching the punishments that the Roman Generals used to their Souldiers when they were at a Court Marshal found faulty they were
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
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
a restriction which perhaps in the end may destroy Society however this hath its quantum for though harmless Passage may be excepted in the first Institution of Dominion yet that is to be understood when leave is granted and though fear of the multitude which is to pass cannot take away that Prince his Right thorough whose Territories or Seas they go yet it follows as naturall that in the Institution of such liberty that Prince or People may provide and if they have any probable or any reasonable cause interdict their passage till security or Hostages are pledged for their peaceable passage nay without declaring their reason may interdict them absolutely any manner of passage if there be any other way to pass in safety And therefore at this day by the Laws of England the King may interdict any Nation or People whatsoever to pass through his Seas without leave first obtained to that purpose and may visit all Ships be they of War or of Trafick that shall occur or be in the same III. Nor is passage onely due to Persons but to Merchandize also for no man hath Right willfully to obstruct the way of Commerce to any Nation with any other that is remote because the permission of Trade is for the interest of humane Society and is not discommodious to any one and to that purpose Philo speaks On the Sea all Ships of burden safely pass according to that right of Commerce which is between all Nations arising from the desire of Natural Society while they supply one another mutually which the one wanteth and the other can spare for envy hath never invaded either the whole world or the greater parts thereof And Plutarch speaking thus of the Sea This Element hath made our life sociable and perfect that otherwise would be wild and without correspondence it supplyes our wants with mutual ayd and by exchange of things needful it procures fellowship and friendship And the wisdom of God is highly to be admired who hath not granted all things to every Land but hath distributed his gifts to several Countries that men having need of one another might maintain Society for their Common good therefore hath he endowed Man with knowledge and understanding to invent and build Ships to govern and guide them by those Lamps of Heaven and other Instruments of his Divine Wisdome enabling thereby the Merchant to convey to all what any place affords according to that of the Poet What Nature any Land denyed By Navigation is supplyed But as the Sea is free and open for Traders yet nevertheless the Passengers are subject to such Restrictions Laws and Ordinances as those Soveraign Princes shall make of force in those places where they have an accession of Property or Soveraignty IV. But admitting that such free Passage may be granted as above whether Tribute may be imposed by him that Rules the Land upon Merchandize passing by Land or by River or by part of the Sea which may be called an Accession of the Land that is the place thorough which they pass is as much under the absolute Jurisdiction of the Prince as the very Land it self Certainly whatsoever Burdens have no relation to the Merchandise no equity suffers the same to be imposed on the same neither can Poll-money put on the Inhabitants to sustain the Charge of the Commonwealth be exacted of Passengers V. Nevertheless if either to secure the Passengers Goods and Vessels from Pyrats and others or for the Erecting of Beacons Light-Houses and other Sea-Marks and such like there indeed some compensation may be laid upon the Commodities or Ships passing thorough so that the measure of the cause be not exceeded Or as my Lord Coke observes in the case of the Halage money it be reasonable for upon that depends the Justness of Tributes and Toll And upon those Reasons the Venetian in the Hadriatique the King of Denmark in the Baltique Sea does demand the same And the King of England may do the like in the Chambers of his Empire and that by his Prerogative for the same is not so much compulsory to any to pay but to them that will take benefit of such accommodation Strabo relates That the Corintbians even from the most ancient of times received Tribute of the Commodities which to avoid the compassing of Malea were carried by Land from Sea to Sea So the Romans received a price for the passage of the Rhine But this Right of imposing on Ships and Goods passing thorough some Territories is found cruel especially when they must pass thorough the Territories of a powerful and fierce People then it is heavy to the Merchant to compound for it 's often done on hard and grievous terms The End of the Second Book CHAP. I. Of Freedom Bondage Slavery Erile and Abjuration I. Of Freedom by the Law of Nature and of Bondage Slavery or Captivity introduced by the Law of Nations II. Of the Actions that subject Man to Bondage III. Of the Dominion over Slaves Bond-men and Captives IV. Of the Cause or Reason of such Dominion V. That this Right or Dominion was not a Law universal VI. Of Bondage or Slavery where discontinued by the Christians and Mahomitans VII Of a Servitade at this day standing with the Laws of a Christian Common-wealth VIII Of Manumission and Freedom by the Hebrew and Roman Law and by the Laws of England IX Of Disfranchising the several ways X. Of Abjuration and Exile and what operation it hath XI Of Freedom in Cities and Corporations in reference to Merchants Traders and Foreiners I. IN the primitive state of Nature no men were Servants yet it is not repugnant to natural Justice that by the Fact of man that is by Covenant or Transgression Servitude should come in therefore Servitude is brought in by the Laws of Nations II. Hence it is That those that will yield up their persons or promise Servitude are accounted Slaves so likewise all that are taken in Publick War and brought within the Guards of their Conquerors nor is transgression necessary but the Lot of all is equal after the War is begun even of those whose ill fortune subjected them to be deprehended within the Enemies Bounds nor are they Servants only themselves but all their Posterity for ever III. The Priviledges of this Right or Dominion are infinite since there is no suffering which may not be imposed on such nor work which may not every way be extorted from them So that even the Cruelty of Masters became almost unpunished till the Municipal Laws of Countreys set Bounds to their rigour and power Nor are the persons become theirs only that have the power of them but also all that they have for such unhappy persons can have nothing of their own Hence it was That that excellent Law in favour of such was introduced by the Romans called Legis Corneliae which was when a Captive intra presidia
if they had been born in England and no man shall be received against an Act of Parliament to say the contrary Therefore if the Father an Alien has issue a Son born here and then the Son is naturalized the Son shall inherit If the Father a natural born Subject has issue an Alien who is naturalized the Father dyes the Son shall inherit III. Naturalization does remove all that disability and incapacity which is in Aliens in respect of themselves and so puts them entyrely in the condition as if they had been born in England The Relative terms as if born in England is generally used to supply the personal defect of the parties naturalized arising from their birth out of England and therefore shall never be carryed to a collateral purpose nor cures a disease of another nature as half blood illegitimation and the like but all diseases whether in the parties themselves or resulting from the Ancestor it cures Acts of Parliament of this nature may be so pen'd as to cure defects in the Father or Ancestor or in the parties themselves If restitution in blood be granted to the Son by Act of Parliament this cures that disability that resulted from the Fathers Attainder and that not only to the Son but also to the collateral Heirs of the Father the true reason of this is because the corruption of the blood by the Attainder is only of the blood of the Father for the Sons blood or coliateral Heir was not at all corrupted for the scope of the Act is taking notice of the Fathers Attainder does intentionally provide against and remove it for otherwise the same had been useless But in naturalization without express words it takes no notice of the defects in the Father or other Ancestor noâ—… amoves them And therefore such Acts of Parliament as take no other notice but of the Person naturalized's Forreign birth the same cures not any disability of transmission hereditary between the Father Brother or any other Ancestor resulting from the disability of them without actually naming of them As for instance the Father an Alien the Son naturalized by Act of Parliament the Father or any other Ancestor an Alien purchases Lands and dyes the Son shall not take by reason of the disability in the Father but there may be words inserted in the Act that may take away the impediment IV. Those that are born in Ireland and those that are born in Scotland are all alike for their birth are within the Kings Dominions and they are born under the like subjection and obedience to the King and have the like band of allegeance ad fidem Regis yet if a Spaniard comes into Ireland and by the Parliament is there naturalized though perhaps this may qualifie and cloath him with the title of a natural born Subject of Ireland yet it has been conceived that it will not make him a natural born Subject of England For the union of Ireland to that of England is different from that of Scotland for the first is dependant as a Kingdom conquered the latter independant Though Henry the II. after his Conquest of that Nation did remit over from England the Ancient modus tenendi Parliamentum enabling them to hold Parliaments which after was confirmed by King John yet that was by no other sorce then bare Letters Patents Now when a Nation is once conquered there remains no Law but that of the Conqueror and though he may incorporate such conquered Nations with his own and grant unto them their ancient Parliamentary wayes of making of Laws yet the Conqueror can no wayes grant unto them a power by vertue of such Grant or Confirmation as to impose upon his own Countrey for he himself before such Conquest could not make a natural born Subject without Act of Parliament and most certainly his Conquest adds nothing to his power though it does increase his Dominion V. Again Kingdoms that are absolute under one Prince ad fidem Regis there the Acts of each other are reciprocate and one naturalized by the Parliament of Scotland is as naturalized in England because Scotland is a Kingdom absolute but Ireland is a Kingdom dependant and subordinate to the Parliament of England for the Parliament in England can make an Act to bind Ireland but not e converso Now to be a Native of Ireland is the same as to be born in Ireland but that is by the Laws of Ireland but to be born in Ireland and to be the same as to be born in England must be by the Laws of England But there is no Law that hath enabled them with such a power as to naturalize further then their own Laws extend but the Law of Ireland does not extend in England therefore Naturalization in Ireland operates only in Ireland because of the failer of power VI. Again Kingdoms that are Conquered the Empire of the same may be acquired by the Conqueror only as it is in a King or other Governour and then the Conqueror only succeeds into his right and no further or also as 't is in the People in which case the Conqueror hath Empire so as that he may dispose of it or alienate it as the People themselves might for 't is one thing to enquire of the thing another of the manner of holding of it the which are applicable not only to corporal things but incorporal also For as a Field is a thing possessed so is a passage an Act a way but these things some hold by a full right of property others by a right of usufructuary others by a temporary right Again by the will of the Conqueror the Kingdom or Republique that is so conquered may cease to be a Kingdom or Common-wealth either so that it may be an accession of another Kingdom or Common-wealth as the Roman Provinces or that it may no wayes add here to any Kingdom or Common-wealth as if a King waging War at his own charge so conquer and subject a People to himself that he will have them governed not for the profit of the People chiefly but of the Governour which is a property of that we call Heril Empire not of Civil for Government is either for the profit of the Governour or for the utility of the Governed this hath place among Free-men that among Masters and and Servants The People then that are kept under such command will be alwayes for the future not a Common-wealth but a great Family hence it is that we may plainly understand what kind of Empire is that which is mixt of Civil and Heril that is where Servitude is mixt and mingled with some personal Liberty For if the People are deprived of Armes commanded to have no Iron for Agriculture to change their language and course of life and abstain from the use of many of their Customes to be confined to their own Houses Castles or Plantations not wander abroad to be governed by such Laws
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
wandring Angel these steal even the Ship-wrack'd mans picture from him which as his whole inheritance he carried at his back to move compassion and by the insatiable Sea of their Avarice and Luxury they wreck him over at Land IX But this free Primitive Communion had and hath its bounds and its quantum in Contributions as well as the natural otherwise it might be fraudulent and thieving For they who possess but a little would contribute it all on purpose to share equally with those who possess very much which would introduce a visible decay and ruin in all as Tiberius rightly observed on M. Hortalus his petitioning an Alms for Augustus Caesar's sake Idleness would encrease and industry languish if men should entertain no hope nor fear for themselves but securely expect other mens relief idle to themselves and burthensom to us Wherefore in the midst of that primitive Communion we find that the Apostles went Domatim from house to house breaking of bread therefore they even then retained by their houses in property which property is supposed by the eighth Commandment as well as it is by Christian Charity For no man can steal but by invading the right of another and as for Charity it is necessary he have something of his own to be able to fulfil its commands and to make a dole at his door and it is very convenient that he give it rather with his own hand then by some publique Collectors For Charity is hated most with the sence of its own action Moreover under the Law Jews were commanded to love one another as themselves yet this Command took not away property then therefore it takes it not away now notwithstanding we own the use or usufruct of our properties to the distressed though our selves be at the same time in distress just as we are commanded by the peril of our own lives to endeavour to secure our Neighbours life which is yet a Charity more transcendent then the other by how much life is above livelyhood And though the various Laws of Countreys have variously provided punishment for those who out of meer necessity take something out of anothers plenty yet that proves not the Act to be sin or repugnant to equity or conscience but rather repugnant to the conveniency of that Kingdom or Republique where the Act is committed and the true reason of the same is least thereby a gap might be laid upon to Libertinism besides Reason of State we know considers not vertue so much as publick quiet and conveniency or that right which is ad alterum X. We will now consider those things which are Gods which yet are not his in such a strict rigorous sence but that they lye open to the exceptions of our just necessities hence that which is devoted as a Sacrifice to him in case of necessity may be made our dinner witness the Action of David Wherefore the consequence of our Saviours answer was very strong when he defended his pulling the Eares of Corn in anothers Field That if it was lawful for David in his necessity to eat that Bread which was provided for the Table of God then how much more was it lawful for him and his Apostles in their necessities to take a refreshing out of that which belonged to Man by the Canon Law if no other means can be found the Vessels of the Altar may be sold to redeem those Souls who are enthralled in misery and captivity and is there not good reason for it seeing they serve but for the Souls of Men and therefore the Souls of Men are more precious then they Yea the Sacrifice it self to what end is it but to obtain a state of piety for us Upon what hath been said it may not seem an injury if a Planter wanting those things for the support of humane life requesting a reasonable proportion of his Neighbour having it to spare with an intention to repay if denyed by force take the same from him for that reason which creates a punishment in a settled Common-wealth for the like actions does in such places fail CHAP. VI. Of Merchants I. Merchandizing the same is honourable and proffitable both to Prince and State II. The Advantages that might accrue to Kingdoms iâ—… the more Nobler and Richer sort applyed themselves to the same III Of the first Institution of the Company of Adventurers IV. Of the â—…stitution of that in England to the Indies V. Of the forming of that in Holland to these parts VI. Of the forming the like by the Most Christian King to the same parts VII Of the advantages and disadvantages considered as in reference to reducing them to Companies VIII How Merchants in England were provided for of old IX Of their immunities settled by Magna Charta X. Of Merchants Strangers whose Prince is in War with the Crown of England how to be used in time of War and the reasons why Merchants Strangers ought to be used fairly XI Goods brought in by them the Moneys raised how to be disposed according to the Statute of Imployment XII Merchant Strangers made Denizons by Parliaments or Letters Patents to pay as before they were so made XIII What things requisite that makes a Competent Merchant according to Law XIV One Merchant may have an Account against his Partner and if he dyes no survivorship to be of the Estate belonging or acquired in their Traffique XV. Of their Immunities which they claim by the Custom of Merchants in reference to Exchange XVI All Subjects are restrained to depart the Realm but Merchants XVII Prohibitory Laws bind Forraigners according to the Leagues of Nations XVIII The necessity and advantage that is incumbent on Merchants to preserve their marks I. THere are certain affairs which should be left to the poor and Common People to enrich them but there are others which they only can execute which are rich as that at Sea by way of Merchandizing which is the most profitablest in an Estate and to the which they should attribute more honour then some do here at this day For if in all Estates they have thought it fitting to invite the Subjects by honour to the most painful and dangerous actions the which might be profitable to the Publick this being of that quality they should attribute more honours to those that deal in it And if Nobility hath taken its foundation from the courage of Men and from their valour there is certainly no vocation in the which there is so much required as in this they are not only to encounter and strive amongst Men but sometimes against the four Elements together which is the strongest proof that can be of the Resolution of Man This hath been the occasion that some have been of opinion that they should open this door to Merchants to attain to Nobility so as the Father and Son hath continued in the same Trade and to suffer Noble Men who are commonly the richest in an Estate to practise
President which governs in their name at Banda they have a Fort for a retreat where they must deliver them the Spices at a certain price in Trinate they have another a mile distant of that of the Portugales at Magniene they have three at Motire one at Gilele they have taken that which the Portugales have built and indeed whatsoever either can or may consist with their interest in those parts they have engrossed and by that means almost the Trade of the whole Spices of the East VI. So likewise the Most Christian King hath within few years established such another Trading to those Eastern Parts And in England we have several others as that of trading to Turkey that of Affrica to Guiny and several others dividing the several Trades according to the Coasts and Places where they are appointed forbidding them to intrench or incroach on each other so likewise to all other his Majesties Subjects on severe penalties VII Now it is not the dividing of the Trade into Companies that can answer the expectation but it is the dividing the Trade into Companies where the Places may bear it as that to the Indies Turkey Hambourough and some others But to some others as the Canaries France or any of those Places on this side the Line it has been conceived the Trade will not bear it but the same would be better distributed either into the Trade of voluntary Associations or single Traders others perhaps would result into Monopolies if incorporated however the Standard rule is to know whether the Trade of the Place will bear a Company or not VIII Merchants in England were alwayes favourably provided for by the Common Law of this Kingdom By the Ancient Laws of King Alfred it was provided Defer due fuit que nul Merchant Alien ne hantaâ—…t Angleterre forsque aur quater Foires ne que nul demeurast in la terre outer quarante Iours Mercatorum navigia vel inimicorum quidem quaecunque ex alto nullis jactata tempestatibus in portum aliquem invehentur tranquilla pace fruuntor quin etiam si maris acta fluctibus ad domicilium aliquod illustre ac pacis beneficio donatum navis appulerit inimica atque istuc nautae confugerint ipsi res illorum omnes angusta pace potiuntor IX Again by the Grand Charter of our Liberties they are provided for in these words Omnes Mercatores nisi publice antea prohibiti fuerint habeant salvum securum conductum exire de Anglia venire in Angliam morari ire per Angliam tam per terram quam per aquam ad emendum vel vendendum sine omnibus malis tolentis per antiquas rectas consuetudines praeterquam in tempore guerrae Et sint de terra contra nos guerrina tales inveniantur in terra nostra in principio guerrae attachiantur sine damno corporum suorum vel rerum donec sciatur a nobis vel a Capitali Justitiario nostro quomodo Mercatores terrae nostrae tractantur qui nunc inveniantur in terra illa contra nos guerrina Et si nostri salvi sint ibi alii salvi sint in terra nostra 1. By which it is declared that all Merchant Strangers might be publiquely prohibited to Trade into this Realm be they in Amity or otherwise 2. All Merchant Strangers in Amity except such as be so publiquely prohibited shall have safe and sure conduct in seven things 1. To depart out of England 2. To come into 3. To tarry in 4. By Water and Land to go in and thorough 5. To buy and sell  6. Without any manner of evils Tolls  7. By old and rightful Customs  X. But concerning such Merchant Strangers whose Prince is in War with the Crown of England if they are found within the Realm at the beginning of the War they shall be attached with a Priviledge and limitation i. e. without harm of Body or Goods with this limitation until it be known to the King or his Chief Justice how Merchants of England are used and intreated in their Countrey and accordingly they shall be used in England the same being jus Beli. But for Merchant Strangers that come into the Realm after War begun they may be dealt withal as open Enemies It being the Pollicy of England ever to entertain Merchant Strangers fairly in the 18. year of Ed. 1. in the Parliament Roll it is contained thus Cives London peâ—…unt quod alienigenae Mercatores expellantur a Civitate quia dicantur ad depauperationem Civium c. Responsio Rex intendit quod Mercatores extranei sunt idonei utiles magnatibus c. non habet Concilium cos expellendi However though great Immunities were granted them yet they alwayes found Sureties that they should not carry out the Merchandize which they brought in XI And at this day if they bring in any Merchandize into the Realm and sell the same for Moneys they are to bestow the same upon other Merchandizes of England without carrying of any Gold or Silver in coin plate or mass out on forfeiture the principal reason of this was as well to preserve and keep the Gold and Silver within the Realm as for the encrease of the Manufactures and the same at this day extends as well to Denizons so made by Letters Patents as Strangers however he may use the same in payment to the Kings Leige People without incurring the penalty of the Statute of 4 H. 4. but yet in strictness of Law ought not to receive any Gold in payment XII All Merchant Strangers that shall be made Denizons either by the Kings Letters Patents or by Act of Parliament must pay for their Merchandize like Custom and Subsidy as they ought or should pay before they were made Denizons XIII Every one that buys and sells is not from thence to be denominated a Merchant but only he who trafiques in the way of Commerce by importation or exportation or otherwise in the way of Emption vendition Barter permutation or exchange and which makes it his living to buy and sell and that by a continued assiduity or frequent negotiation in the mystery of merchandizing But those that buy Goods to reduce them by their own art or industry into other forms then formerly they were of are properly called Artificers not Merchants Not but Merchants may and do alter Commodities after they have bought them for the more expedite Sale of them but that renders them nor Artiâ—…rs but the same is part of the mystery of Mâ—…ts But Perâ—…â—…ying Commodities though theâ—… alâ—… not the form yet if they are such as â—…ell the 〈◊〉 at â—…ure dayes of payment for greater priâ—… then 〈◊〉 〈◊〉 them they are not properly called Merchants 〈◊〉 are 〈◊〉 thâ—… they 〈◊〉 〈◊〉 other names as Ware-House Keepers and the like but Banckers and such as deal by Exchange are properly called Merchants XIV
Dominion universal 1 1. 1 Where acquired lawfully by Warr 1. 1. 7 Division of Estates first among Families 1. 1. 3 Dominion personal where the same may be 1. 6. 5 Dominion of things began from natural possession 1. 13. 10 Not founded in grace 2. 11. 3 Dower The Wife of one in Exile may bring a Writ of Dower 3. 1. 10 An Alien Wife cannot have the same unless a Queen 3. 2. 12 A Jew born in England takes a Jew born in England she cannot have Dower ibid. Ecclesiastical persons BY the Canon Law exempt from Reprizals 1 2. 16 So likewise from the Sword in time of Warr 1. 14. 18 Election Given to the Merchant to charge either Master or Pylot for Damage done 2. 9. 4 The like to charge the Master or Owners ibid. Embargo Embargo when by the Lawes of England 1. 1. 11 Goods of a Friend in the hands of an Enemy not subject to an Embargo 1. 1. 12 Goods laid aboard are Embargo'd yet Freight shall be paid 2. 1. 12 Enemy Goods taken from them become the Captors 1. 13. 10 Enemies Goods and Merchandize taken by them and afterwards retaken alters the property 1. 1. 7 Enemies what is lawful to do against them 1. 1. 9 If taken in the Realm are to be tryed by Martial Law 3. 4. 6 To relieve him by a Souldier in pay punished with death 1. 13. 8 England None could Trade thither without leave 1. 5. 7 English no Nation nâ—…re tender of their honour 1. 5. 9 Exchange Exchanges the various sorts 2. 10. 4 Bills on the same are to be governed by Custome 2. 10. 14 What amounts to an acceptance 2. 10. 15 Once accepted not to be revoked 2. 10. 28 Accepted for the honour of the drawer ibid. Executor Executor of a Forraigner shall not have the benefit of being discharged of Prisage though he is a Citizen of London 2. 8. 5 Exile The various wayes of banishing a Subject 3. 1. 9 What a man forfeits by the same 3. 1. 10 Exile of the Father binders not the Freedom of the Son ibid. Factor FActor Enemy the Goods of a Friend in his possession not subject to an Embarge 1. 1. 12 Factor contracts for another Port and before departure the Ship takes fire the Assurors are discharged 2. 7. 13 Factor super Cargo cannot alter the Voyage agreed on without special Commission 2. 4. 5 Factor super Cargo ought to be consulted with before there be a casting over-board 2. 6. 1 He ought to give notice if there be any Plate or Jewels in Boxes or Trunks 2. 6. 15 Factor Enemy the Goods in his possession not subject to Reprize 1. 1. 12 Cannot give time 3. 7. 3 Principal where obliged by his act and where not 3. 7. 4 Feés To the Officers of the Custome-house how governed 2. 13. 12 Felony The wilful casting away of a Ship by a Master that had taken up Moneys on Bottomery 2. 11. 11 Stealing of Cables or any of the Ships Furniture belonging to the King punished as Felons 1. 14. 11 Stealing of men at Sea Felony 1. 4. 15 Fishermen Fishermen ought not to Fish in the Night with Lanthorns or Lights 2. 5. 2 Flagg But a consecutive acknowledgment of the British Seas 1. 5. 7 Demanded peremptorily by the English and punished as Rebels if refused 1. 5. 9 How the same differs from that claymed by the French 1. 5. 11 The Right how far it is to be paid 1. 15. 3 How punishable for the neglect 1. 15. 5 Force Used by persons in opposition to Justice may occasion Reprisal 1. 2. 11 Forfeiture The Forfeiture of Ships drawes not the loss of the Boat 2. 1. 8 Forraigners Have a Right to compell where Justice is denyed in the ordinary way which Subjects have not 1. 1. 9 Forraigners Robb'd at Sea have a right to prosecute within the Stat of 28 H. 8. 1. 4. 7 So for the like offence to be punished by the Statute of 25 F. 3. 1. 4. 8 Forraigners in enmity together with some English commit Pyracy how punishable 1. 4. 9 Forraigners committing Pyracy on the British Seas punishable by the Crown of England and not elsewhere 1. 4. 10 Vide Aliens Fraud Fraud and Covinous Assurance is void 2. 7. 5. 15 Freéman How many wayes he may be made of City or Burrough 3. 1. 11 What makes a compleat Freeman ibid. Freight Freight where the same may be refused by the Master and where not 2. 4. 15 Freight is the Mother of Wages so likewise the Father of Damage 2. 1. 9 It is governed by the Contract 2. 4. 2 It shall be paid though the Ship proceeds not her Voyage if once she laded 2. 4. 4 Freight becomes due though there be a failer of compleating the Voyage according to the time agreed on 2. 4. 5 Freight not due if the Vessel is Robb'd 2. 4. 6 Out and in not due till the whole Voyage be compleated 2. 4. 8 If any fault arises from the Freighter he shall answer ibid. Fugitives Fugitives the houses of Ambassadors are Sanctuaries for them 1. 10. 12 Whether they may be delivered up flying into another Countrey 1. 11. 3 Persons that have wronged Kings of their Revenue have been delivered up when they become Fugitives 1. 11. 7 Are received by the Laws of Warr 1. 14. 20 Generals GOod Generals one of the greatest of happinesses that can come to a Prince 1. 13. 1 Such are followed to death by the Army ibid. Not to be slighted and of the Cruelty shewed to Belisarius 1. 13. 3 When taken in Battail they are not the Captors but that Princes or States by whose Subject they were taken 3. 1. 5 Goods When the property of the same is altered by the Lawes of Arms 1. 1. 7 Of a Friend in the custody of an Enemy not subject to Reprize 1. 1. 12 Goods counterband where the same may be subject to reprize 1. 1. 15 Of an Enemy may as well be spoyl'd as taken 1. 3. 1 What may be made Prize and what not 1. 3. 11 12 Goods secretly brought a shipboard if lost oblige not the Master 2. 1. 17 But if secretly brought in by the Master after a Ship is Freighted if damage happens to the rest he shall answer nor can those goods if cast over-board be subject to an Averidge 2. 4. 9 Goods on a mans Body not subject to an Averidge 2. 6. 4 Goods how estimated for the setling an Averidge 2. 6. 14 Exported what allowances to be made 2. 3. 2 5 Habitation IN time of Fire or Warr may be pulled down 1. 1. 4 Habitation or Domicil and not Originatirn or Nativity that subject men to Reprizal 1. 2. 14 Havens The same ought to be kept in peace 1. 1. 10 Hostages He that gives them is freed from his faith 1. 8. 6 Are not to be slain generally may be put to death if the Contract be broke 1. 14. 18 Impiety IMpiety punished a Shipboard 1. 13. 4 Incertainty Of the Port
as if a blanck is left in the policy if a loss happens the parties are without remedy 2. 7. 14 Indictment For Pyracy upon the Statute must mention the same to be done at Sea 1. 4. 23 Indiction If necessary 1. 1. 11 Infidel Cannot be a witness yet may bring an Action 3. 4. 7 Innocent Whether such a person may be deserted to prevent a Warr 1. 11. 5 How obliged to render up himself 1. 11. 7 Interpellation Interpellation having gone and no satisfaction returned whether Warr may be begun 1. 1. 14 Joynt-Traders Vide Societieg Joynt-Traders the acceptance of a Bill by one will bind the other 2. 10. 18 But accepted by one Member of a Company it cannot oblige another Justice Stopt and Judges not able to protect men from Violence denotes Warr 1. 1. 6 Denyed or delayed in the ordinary course to a Forraigner gives right of Reprizal 1. 2. 9 11 In matters doubtful the presumption is alwayes for the Judge 1. 2. 10 King KIng's Standard appearing in the Field denotes a Warr 1. 1. 6 King not entitled to the Copyhold Land of an Alien 3. 2. 11 Law OF Nature what thing may be acquired in Warr by the same and also by the Lawes of Nations 1. 1. 6 Law Civil cannot command any thing that the Lawes of Nations forbids 1. 6. 1 Lawes of Nations broken by an Ambassadour subjects him to punishment 1. 10. 5 Judgments how executed by the Lawes of Nations 3. 8. 8 Larceny Where the same may be in a Master 1. 4. 16 Leagues Leagues made with Princes though they have lost their Kingdome remain 1. 7. 18 Leagues remain though the Republique is changed into a Monarchy 1. 7. 17 Leagues the Oath binds the person and the Promise the Successor ibid. Leagues confirmed in England by Parliament and are often Offensive 1 7. 7 The cause ordinary for which they are made 1. 7. 8 Defensive Leagues Leagues how Ratified 1. 7. 12 How broken and the ordinary cause 1. 7. 13 14 How to be interpreted 1. 8. 6 Loadmanage What. 2. 7. 7 London Discharged of Prisage 2 8. 3 The Extent of the Port 3. 14. 9 Keyes and Places lawful for landing in the same 2. 14. 10 Charter confirmed 3. 1. 10 Lotts Vide Mutiny Manumission WHen first introduced 3. 1. 8 The various wayes of making Free ibid Marriners and Fishermen Pressed for the Service are not to be imployed but as Marriners 1. 6. 4 Their Wages dye with the Ship 2. 3. 7 Marriners their Suits favoured by the Courts at Common Law 2. 3. 8 May be corrected by their Master or Captain 2. 3. 12 Marriner cannot contract for Freight 2. 4. 14 Marriners what share they have in the Goods of a Passenger deceasing in the Voyage 2. 4. 11 Marriners their faults and punishments 1. 13. 4 5 Marriners a Shipboard their various Offices and Imployes 2. 3. 1 Their faults how punished 2. 3. 2 The mutual Ayd they must afford one another 2. 3. 3 Not to be arrested a Shipboard nor are they to depart thence when once entertained ibid. Obliged to make satisfaction 2. 3. 4 Masters of Ships Where his knowledge of the Goods may involve the whole Lading 1. 1. 12 Master of a Ship hang'd up for attempting to relieve a place block'd up 1. 1. 14 Master of a Ship becomes a Pledge in the hands of Pyrats for the redemption of the Ship the same is made lyable for his redemption 1. 4. 5 Master brings Goods to a Port and then runs away with them not Pyracy 1. 4. 16 Master responsible for offences to his Owners 2. 1. 8 Where he may release the Freight and where not 2. 4. 15 Where his act obliges the Owners and where not 2. 1. 10 Master hath no Property in the Vessel by being constituted Master 2. 2. 1 Master becomes lyable immediately by the lading the Ship aboard 2. 2. 2 So likewise if he receives them if lost he must answer 2. 2. 3 His Duty 2. 2. 4 He may borrow Money on the Ship 2. 2. 14 2. 11. 10 The Master is obliged to the care and preservation of his Marriners 2. 3. 2 He is obliged for the Barratry of his Marriners 2. 3. 13 Master not lyable unless the Lading is brought aboard by his and his Pursers consent 2. 3. 17 Nor can the same be attached in his hands 2. 3. 18 If he translades the Lading and the Ship miscarry he shall answer but if both è cont ' 2. 4. 4 Master to answer for insufficient Ropes in hoysting out the Goods 2. 9. 5 Masters obliged by the act of their Servants 2. 10. 27 Members What is understood by them 2. 14. 7 Merchants Honour justly due to Merchants 3. 9. 1 The more Honourable the persons are the more reputation they bring to their Country 3. 6. 2 All Nations professing the same may freely Traffique for England 2. 12. 1 Merchants Strangers their Immunities granted 2. 12. 9 An Alien Infant cannot be a Merchant Trader in England nor can be enter Goods in his own name 3. 2. 11 No survivor amongst Joynt Merchants 3. 6. 14 May depart without leave 3. 6. 15 Money Is the civil measure of things 2. 11. 5 Its necessity in Society 2. 11. 6 7 Advanced on a contingency is no Usury 2. 11. 13 14 Mutiny To be punished with death how the same is to be governed in such extremity 1. 14. 17 Not to Mutiny if the Victuals are naught 1. 14. 23 They may be Executed immediately 1. 14. 26 Naturalization CAnnot be in England without Act of Parliament 3. 3. 2 It removes all the disability or incapacity in the Ancestor 3. 3. 3 Naturalized in Ireland operates not in England but in Scotland otherwise 3. 3. 4 Necessity The Master may translade without Commission 2. 4. 4 Necessity is excepted out of the Law of Dominion 1. 1. 4 Ships in Necessity may take things necessary from another by force of Arms 1. 4. 18 The right of Nature in such extremity where let in 3. 5. 5 In such Exigencies how written Lawes are to be interpreted 3. 5. 7 Neutrality Neuters how they ought to carry themselves in Warr 1. 1. 14 Neuters their Ships in the Ports of the warring Parties whether being forced to fight is a breach of the League 1. 1. 15 Neutrality what and how made 1. 9. 6 The advantage of the same 1. 9. 7 Neuter neither purchases Friends nor frees himself from Enemies 1. 9. 7 It works no wrong ibid. If prest for whom must he declare 1. 9. 8 Oath HE that gives it to Pyrat is bound to the performance 1. 2. 6 Oath may be administred by the Judge Advocate 1. 14. 27 Office King not entitled to the Lands of an Alien till Office found but in Treason è cont ' 3. 2. 10 Officer Quarrelling with how punished if struck the party offending suffers death 1. 14. 22 Owners Owners may Freight out their Ship against the consent of each other 2. 1. 2 Cannot be
Peace for himself a part being angry with Edw. the 4th for making the same Philip. Com. lib. 4. c 40. So Lewis the 11th concluded a Truce for nine Years with Edw. the 4th when he had invaded France Phil. Com. lib. 4. cap. 8. * For the Right remains with him how ever he hath lost the possession Grot. de Jure Belli ac Pacis lib. 2. ch 16. §. 18. 2 H. 5. cap. 6. 20 H. 6. cap. 11. †And at the the Lords of Request of and Commons was pardoned he making satisfaction for the losse 11 H. 4. ad Parliament tent quenden Hill vide Cotton Abridgement 19 E. 4. 6. B. 18 H. 6. ca 4. 20 H. 6. cap. 1. 19 E. 4. 6. B. Maxime Rott Scotiae de An. 10 E. 3. m. 36. intus de puniendo illos qui contra formam Treugae hominibus de Scotiae concessâ—… deliquerint Much practised by the Free Princes and States of the Empire †An. 1674 Consul Quintus ad Achaeos quod optimum esse di cant non interâ—…erponi vos bello imo nihil tam alienam rebus vestris est Quippe sine gratia ne lignitate praemiuâ—… 〈◊〉 eritis Lucius lib. 35 Scripta Ammirat disc polit l. 18. disc polit Pompon Leg. si quis D. de Lecationibus Livy lib. 1. 6. Kings conquer ed in a solemn War and deprived of their Kingdom with other Royalties loose the right Legation P. Aemilius detain'd the Heralds of Perseus whom he conquered †P. Poole a Traitor fled to Rome the Pope sent him Ambassador to the French King of whom the King of England demands his Subject sed non praevaluit Co. Inst. 3. fo 153. Rot. Pat. 3. R. 2. num 18. * Legatus ejus vice fungitur a quo destinatur honorandus est sicut ille cujus vicem gerit Legatos violare contra jus Gentium est â—…2 Assize pl. 49. Note this was 3 years before the making of the Stat. of 25 E. 3. quaere if such a Prorex is within the Stat at this day Cambden 157â—… quaestionum ibi pro posticarum quarta Daniels Hist. of Henry the Second Carolus quintus Imp. Galliae Venetorum Florentinorum ad bellum sibi indicendum missos dâ—…duci jussit in locum qui a comitatu sno abesset triginta millarum aria Guic. l. 18. Bellaius lib. 3. †Card. Arnold Ossat in his 353 Epistle Coke 4. Iust. 153. Menander Protector Justino Imper. Avarorum Legatos contra jus Legationum in vinculis habuit Cothmannum Resp. 32. num 29. Co. Inst. 4. 153. 2. H. 5. Cap. 6. 20 H 6 Cap. 11. * Quanquam visi sunt commisisse ut Hostium loco essent jure tamen Gentium valuit †Fit reus magis ex equo bonoque quam ex jure Gentium Bomilicari comes ei qui Romam fide publ venerat An Enemy is boundtowhom they are sent 〈◊〉 their Priâ—…ge oblidâ—… 〈◊〉 those 〈◊〉 whose 〈◊〉 thâ—… 〈◊〉 without leave For if they go to or come from their Enemies or make aâ—…y hostile attempâ—… they may be slain Livy lib. 26. Grotius de jure Bâ—…li â—…c Pacis lib 〈◊〉 Cap. 18 §. 4. nâ—… 4 5. Senatus faciem secuâ—… attulerat auctoritatem Reip M. Tullius 8. * Co. Inst. 4. f. 152. Sic Carolus quintus Legato Ducis Mediolanensis ut subditi sui imperavit ne a Comitatu suo abâ—…cederet Guicciardi indicat jam loc Hill 13 Eliz. Bishop of Rosses Case Co. 4. Inst. 15â—… August de Leg. Antiq. Rom. Acta Trideâ—… Concilii Pompon Leg. ult D. de Lâ—… patis Benedict in Vita Henr. 2. 〈◊〉 Colloquium Machiav lib. 2. cap. 28. Rott Scaccar Westm. Claus. Edw. primi Bulstr. 3. part fo 28. cited in Marshe's Case Sir Henry Woot on fo 211. stat Cris. Vide Sir Robert Cottens posthum and the Proposit. to K. James The opinion of the Lord Coke 4. Inst. 153 c. Hobart f. 71. * Distingui ferme ac in re solent crimine Vide â—…utam l. 10. ubi Rex Galliae hans ab causam â—…ratus â—…acatur Vide euadem lib. 11. †Grot. de jure Belli ac Pacis l. 18. §. 4 5 6 7. Rex facisne metu regium nuntium populi Romani Quiritum vasa comitesque meos yet an Ejectment hath been brought and left at the house of the Ambassador and it was allowed good and conceived no breachof their priviledge in the case of Monsieur Coâ—…bert for York House Mich. 28 Car. 2. in Banc. Reg. †Grot. de jure Belli ac Pacis lib. 2. cap. 18. * Co. Inst. 4. 153. Certain it is that none dareth presume to meddle either with their Persons Goods or Servants without leave had the contempt of which has been punish'd with imprisonment Barkseate in memor Grotii †Bodinus de Repub. l. 3. * Jac. Aug. 〈◊〉 l. 27. â—…ta Auguâ—… Barbadico 〈◊〉 of Vec 〈◊〉 1 86. Paulus Parâ—…ta in Hist. Venice lib. 7. Zeno interceeding for the Magnets to T. Quintus and the Legates with him besought them with tears ne unius amentiam civitati assignarent suo quemque periculo facere Livy lib. 40. For the knowledge of the cause ought to proceed the dedition non decet homines dedere causa non cognita Plutarch in his Romulus Attainted by Act of Parliament 12 H. 7 Co. Inst. f. 180. 5 H. 8. vide Lord Herberts Hist. of Henry the Eighth Pipin receiv'd and would not deliver up those that fled to him out of Newstria opprest by Tyranny Frededegar in reb Pep an 1188. * Yet out of Churches beyond Seas for private offences which are universal Sanctuaries the offenders have been taken out in Lusitania Ferdinand Lord Chamberlain was taken by force out of the Church and burnt for forcing a Noble Virgin Mariana lib. 11. Charles Duke of Burgundy delivered up to Lewis the 11th the Earl of St. Paul Constable of France who flying to some of his own Cities obtained Letters of Safe-Conduct to come and commune with the Duke in order to the making his peace with the King but the Duke after he had him in custody delivered him to the King of France who immediately after cut off his head Phil. Comines lib. 4. c. 12. †Ludovicus Pius the Emperor received those that fled to him from the Roman Church as appears by his Decree anno 817. and Luther himself did not want Princes to protect him from the fury of St. Peter's Chair Vide his Colloquiums printed in London an 1663. Livy vide Sir Walter Raleigh lib. 5. cap. 6. 〈◊〉 2. 34 Elizabethae Cambden f. 35. Vide Cambd. anno 1585. An. 1660. That politik Princes gave the Scots a more equitable answer when they demanded Bothwell she answered that she would either render him up or send him out of England Cambden annh 1593. Hist. Rep. Ven. in Vita Tebastiano Cynei Duke of Venice An. 1164. Phil. Comines lib. 1. cap. 1. Idem de finibus 3 Vir bonus sapiens Legibus parens