dissembled or connived at or else the Ambassadour be commanded to depart the Realm and if the crime be cruel and publiquely mischievious the Ambassadors may be sent with Letters of Request to his Master to inflict punishment according to the offence So likewise in the precaution of a great mischief especially publique if there be no other remedy Ambassadors may be apprehended and executed and if they oppose by force of Arms they may be slain In the Bishop of Rosses Case An. 13 Eliz. the question was An Legatus qui rebellionem contra Principem ad quem Legatus concitat Legati Privilegiis gaudeat non ut hostis poenis subjaceat and it was resolved that he had lost the Priviledge of an Ambassador and was subject to punishment nor can Ambassadors be defended by the Law of Nations when they commit any thing against the State or Person of the Prince with whom they reside And why Ambassadors are in safety in their Enemies Countries and are to be spared when they commit offences is not so much for their own or Masters sake but because without them there will never be an end of hostility nor Peace after Wars neither is the Name or Person of an Ambassador so inviolable either in Peace or in time of War but there may be both a convenient time and a good occasion to punish them and this standing with the Laws of Nations VII The Signiory of Venice understanding that certain Traytors who had revealed their Secrets to the Turk were fled for protection into the House of the French Ambassador at Venice sent Officers to search the Ambassador's House but the Ambassador refusing them enterance the Senate commanded certain Cannon to be brought out of the Arsenal to beat down his House which when he saw planted he surrendred up the Traytors 1 The Ambassadors of Tarquins Morte affligendos Romani non judicarunt quanquam visi sunt ut hostium loco essent jus tamen Gentium voluit 2 The State of Rome though in case of most capital crimes exempted the Tribunes of the People from question during the Year of Office 3 The Ambassadors of the Protestants at the Councel of Trent though divulging there the Doctrine of the Church contrary to a Decree there enacted a crime equivalent to Treason yet stood they protected from any punishment It is generally consented by all the Civilians That Legis de jure Gentium indictum est eorum corpora salva sint propter necessitatem Legationis ac ne confundant jura commercii inter Principes 4 Viva the Popes Legates was restrained by Henry the Second for exercising a Power within his Realm not allowed or admitted of by the King in disquiet of the State and forced to swear not to act any thing in praejudicium Regis vel Regni 5 On the other hand it has been answered that they are by the Laws of Nations exempted from Regal Tryal all actions of one so quallified being made the act of his Master or those whom he represents until he or they disadvow and injuries of one Absolute Prince or State to another is factum hostilitatis and not Treason the immunity of whom Civilians collect as they do the rest of their grounds from the practise of the Roman State deducing their Arguments these examples The Fabii Ambassadors from Rome were turn'd safe from the Chades with demand of Justice against them only although they had been taken bearing Arms with the Ethurian their Enemies Titus Liv. 2. Dec. 6 King Edward the Second of England sent amongst others a French Gentleman Ambassador into France the King upon this arraigned him as a Traytor for serving the King of England as Ambassador who was his Enemy but the Queen procured his pardon 7 Henry the Third did the like to one of the Popes Ambassadors his Colleague flying the Realm secretly fearing timens pelli sui as the Records has it Edward the First restrained another of the Popes turbulent Embassadors untill he had as his progenitors had informed the Pope of the fault of his Minister and received satisfaction for the wrongs 8 Henry the Eighth commanded a French Ambassador to depart presently out of the Realm but because he was the professed enemy of the Seat of Rome 9 Lewis de Prat Ambassador for Charles the Fifth was commanded to his house for accusing falsly Cardinal Wolsey to have practised a breach between Henry the Eighth and his Master to make up the amity with the French King 1523. 10 Sir Michael Throgmorton by Charles the Nineth of France was so served for being too busie with the Prince of Condy his faction 11 The Popes Ambassador at Paris was arraigned for practising certain Treasons in France against the King in the Parliament of Paris and was there found guilty and ccommitted to Prison 12 Doctor Man in the Year 1567 was taken from his house at Madrit in Spain and put under a Guard to a straighter Lodging for breeding a scandal as the Condo Teri said in using by Warrant of his place the Religion of his Countrey although he alledged the like permitted to Guzman de Silva their Ambassador in England and to the Turke no less then in Spain 13 Francis the First King of France sent Caesar Trâ—…gosus and Anthony Rincone Ambassadors to the Turk they were surprised by the Armies of Charles the Fifth on the River Poe in Italy and were put to death the French King complained that they were wrongfully murdered but the Emperor justified their death for that the one being a Genois and the other a Milanois and his Subjects feared not to serve the King his Enemy 14 Henry the Eighth being in League with the French and at enmity with the Pope who was in League with the French King and who had sent Cardinal Poole to the French King of whom King Henry demanded the Cardinal being his Subject and attainted of Treason sed non praevaluit 15 Samuel Pelagii a Subject to the King of Morocco pretended that he was an Ambassador sent unto the States General of the United Provinces he came to them and accordingly they did treat with him afterwards he departed and being upon the Sea he did take and spoil a Spanish Ship and then came into England the Spanish Ambassador here having received intelligence of the spoliation caused his Person to be seized upon intending to proceed against him as against a Pyrat and imprisoned him and upon conference with the Lord Coke Dordridge and other Judges and Civilians they declared their opinions That this Caption of the Spaniards Goods by the Morocco Ambassador the same is not in Judgement of Law a Pyracy in regard it being apparent that the King of Spain and the King of Morocco are enemies and the same was done in open Hostility and therefore in Judgement of Law could not be called Spoliatio sed legalis Captio and a Case out of 2 R. 3. fo 2.
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
faith given and contrary to the Laws of Hospitality to slaughter or deliver up his own guest V. What ever the opinion of those Writers have been the practise of latter Ages have seemed to incline otherwise Queen Elizabeth demanded Morgan and others of her Subjects fled into France that had committed Treason against her the answer of the French King was Si quid in Gallia machinarentur Regem ex jure in illos animadversurum sin in Anglia quid machinati fuerint Regem non posse de eisdem cognoscere ex jure agere omnia Regna profugis esse libera Regum interesse ut sui quisque Regni libertates tueatur imo Elizabetham non ita pridem in suum Regnum Mountgumerium Principem Condaeum alios e Gente Gallica admisisse c. and they were never delivered up but the like was not returned by the King of Scotland for he promised that he would transmit Fernihurst and the Chancellor too if they were convicted by a fair Tryal the Cry of the late ROYAL MARTYR's Blood justly procured some of those Regicides to be delivered up by them of Holland VI. Most certain it is if War be threatned to a Nation or People if they deliver not up the offender though perhaps he is innocent and that such is the malice of his enemies that they know they will put him to death yet he may be deserted especialy if that Nation or Kingdom is inferior to the others but then the same ought not to be done rashly The Italian Foot that forsook the unfortunate Pompey before all was lost being assured of Quarter from the Victorious Caesar were condemned by most that reported the Story of that day Pope Alexander in that mortal Feude becween him and the Emperor Frederik who favoured Octavian the Antipope fled disguised to Venice the Duke and Senate being jealous that the Emperor would demand him sent an Ambassy to the Emperor to endeavour a Mediation and Peace which was no sooner offered but the Emperor break forth into a rage bidding them go home saying Tell your Prince and People that Frederik the Roman Emperor demands his Enemy who is come to them for succour whom if they send not presently bound hand and foot with a sure Guard he will proclaim them Enemies to him and the whole Empire and that there is neitheir Alliance or Law of Nations which shall be able to free them from revenge for such an injury to prosecute which he is resolved to overturn all Divine and Human Laws that he will suddenly bring his forces before their City and contrary to their expectation plant his Victorious Eagles on the Market-place of St. Marke This Message being faithfully delivered the Senate decreed Arms Arms and while they were preparing news was brought that Otho the Emperor's Son and General of the Caesarian Fleet was entered the Gulph with 7 5Gallyes the most valiant and religious Tebastiano Cyani resolved to meet him and having encountred them on the Coast of Istria defeated Otho and all his Naval forces taking 48 Gallyes Otho their Admiral and the rest either burnt or distroyed he returned in Triumph for Venice and not long after Frederik became converted that Heaven fights the Batailles for the Innocent and on his knees begg'd pardon of the Pope Lewis the 11th of France required by Ambassadors of Phillip Duke of Burgundy the delivery up of Sr. Oliver de la Marche who being a Burgundian had wrot as was conceiv'd somewhat against the claim of the French to several Territories upon a publique audience at Lisle they were answered by Duke Phillip That Oliver was Steward of his House a Burgundian by birth and in no respect Subject to the Crown of France notwithstanding if it could be proved that he had said or done any thing against the Kings Honour he would see him punished according as his faults should deserve But admitting that such an Innocent Person ought not to be delivered up whether he is bound to yield himself by some it is conceiv'd he ought not because the nature of Civil Societies which every one hath entered into for his own benefit doth not require it from which it follows that such Persons are not bound to that by right properly so called it doth not follow but in charity he seems bound to do it for there be many offices not of proper Justice but of love which are not only performed with praises but also cannot be omitted without blame and such indeed is the act of such a Persons voluntary yielding up himself preferring the lives of an Innocent multitude before his own Cicero for P. Sextus If this had happened to me sailing with my Friends in some Ship that Pyrats surrounding us should threaten to sinck us except they would deliver me I would rather have cast my self into the Sea to preserve the rest then to bring my Friends either to certain death or into great danger of their life The Request of the Noble Strafford is fresh in our memories VII But whether such an Innocent Person may be compelled to do that which perhaps he is bound to do may be a question Rich Men are bound by the precept of Mercy to give alms to the poor yet cannot be compelled to give It is one thing when the parts are compared among themselves another when Superiors are compared to their Subjects for an equal cannot compell his equal but unto that which is due by right strickly taken yet may a Superior compell his Inferior to things which vertue commands in a famine to bring out provisions they have stored up to yield him to death that deserts his Colours or turns coward to mulct those that wear excessive apparel And the like Phocion pointing to his dear Friend Nicocles said Things were come to that extreamity that if Alexander should demand him he should think he were to be delivered up It hath seem'd that such an Innocent Person might be deserted and compelled to do that which Charity requires but the late ROYAL MARTYR seem'd of another opinion when he came to dye in the case of the British Proto-martyr Strafford VIII Persons that have wrong'd or defrauded Kings of their Revenue especially in England upon Letters of Request to those Princes whether they have fled have been delivered up Some Florentine Merchants of the Society of the Striscobaldi being made Collectors and Receivers of the Kings Customs and Rents in England Wales Ireland and Gascoigne running away with those Moneys together with all their Estates and Goods for Rome the King sent his Letters of Request to the Pope desiring that they might be arrested their Persons and Goods and sent over to satisfy him the dammages he and his Subjects had sustained by them promising not to proceed against them to the loss of their limbs and lives Upon which Letters the Pope seized on their Goods and not long after the King Writ for
the seizing of their Persons for answering of other frauds and injuries The like was done for one Anthony Fazons who had received 500 l. of this Kings Moneys and running away with it to Lorraine the King writ to the same Duke desiring that search might be made and his Person seized upon in every place within his Territories till he should satisfy the said 5000 pounds CHAP. XIII Of Contribution pay'd by Places Deuter to both Armies in War I. Considerations general touching the same and the chief matters that are objected by those that scruple thereat II The case stated generally in the question propounded to our Saviour of paying tribute to Caesar. III In the payment of Contribution to an Enemy what is necessary to be distinguisht in the beginning of a War IV. Of a second distinguishment drawn out of the first of such payments when a War is actually formed V. Where a Man payes but mislikes the cause whether excusable the War not yet actually formed in the place VI. Where a Country is fully possest whether payment then is lawful VII Of the State of those that live on Frontiers their condition considered as in reference to procure their peace by Contributions VIII Of interdiction by him to places from whom saith is owing Contribution notwithstanding being pay'd whether the same creates an offence in them IX Of the genuine construction of such interdictions according to the true intention of the same X. Of the impunity and punishment that such innocent offenders may be subjected in case of being questioned for the contempt by their right Governours I. THe most excellent Grotius having most incomparably treated on and cleared all the important objections against a just War together with the incidents of the same yet this one main of Contribution or paying to both Armies whether lawfull he has not touched in any other words but these Quod sub tributo utrique partâ—…â—…raestando factum due in Belgico Germanico bello nuâ—…â—…dimus estque id consentaneum mori veteri Indorum †â—…d so cites a saying in Diodorus Siculus * of the Peace that those People maintained in their possessions by reason of such Contributions but to many Persons that instance of this without further scrutining proves insufficient for that there are many who not finding this liberty in their consciences unnecessarily choose rather to give up their 〈◊〉 to restraint and to abandon their whole means of subsistance in this World both for themselves and their Children which ought not fondly to be done unless we would be worse then Infidels as St. Paul saith they ground their resolution on this reason that they know not whether the Moneys they give may not furnish to the destruction of many Innocents and perhaps the just Magistrate yea and the total subversion and ruâ—…n of their Countrey Liberty and Religion and therefore though Men give and bestow what they please with their own yet in such cases they may not therefore it may not be impertinent for to examine whether thes be necessary scruples in themselves and such as admit of no exception of liberty or whether those scruples be reasonable or indeed meer scandal II. The Scribes and Pharisees sought two waies to entrappe Our Saviour one was as if he had blasphemously taught a new Religion and a new God viz. himself they hoped the People would be provok't to stone him for this according to the Hebrew Law The other was to bring him within the compass of Treason as if he could not lead great Multitudes after him without trayterous designs but this gin failed too because the Multitudes which followed him was alwaies ready to defend him However when he was at Hierusalem where the Roman Troops and Praetor were they thought they had him sure by propounding this subject to him Is it lawfull to pay Tribute to Caesar which was as much as to say We who are descended from Abraham and are the peculiar People to whom God hath given the large Priviledges of the Earth at home to bath our selves in Rivers of Milk and Honey to have full Barns and many Children yea that GOD himself will be adored in no other place of the World but at this our Hierusalem and that abroad we should triumph over the Barbarous and uncircumcised World by virtue of that Militia which he never ordered for any but our selves how are we then in duty or conscience to submit now to the Ordinances of the Uncircumcised Romans or what right can he have to exercise supream Jurisdiction over us the priviledged Seed of Abraham by levying of taxes on our Estates and Lands which GOD himself laid out for us by which means the Emperor and Senate hold this very Temple in slavery and insult over our very Consciences and Religion by defiling our very Sacrifices with the mixture of impure Blood which as they are the price of our Blood and a Tribute far above Caesars payable in no other place but this Temple which GOD himself built so our Blood ought not to seem too dear to be sacrificed for the liberty of these and though the Roman State could pretend yet what can this Caesar pretend every Man's Conscience knows that it was but the other day he usurpt over the Senate in which resides the true Jurisdiction of Rome and if that were otherwise yet how can he pretend to a Title unless poyson be a pedigree or violent usurpation a just Election by which he who is but the greatest Thief in the World would now pass for the most Soveraign and Legislative Prince How then are we in conscience oblidged to pay Tribute to this Caesar Though those Lawyers thought in their Consciences that they were not to pay it and that Our Saviour likewise as Jew thought so too yet they supposed he durst not say so much in the crowde nor yet deny it by shifting it off with silence left the Roman Officers should apprehend him But when Our Saviour shewed them Caesar's Face upon the Coyn and bad them Render to Caesar that which was Caesar's and to GOD that which was GOD's His answer ran quite otherwise not as some would have it that by a subtility he answered not to the point proposed for then the sense of the whole Text would sound very ill in such tearms viz. If there be any thing due to Caesar pay him it and if any thing is due from you to GOD then pay it likewise This had been a weakening of GOD's Right for Caesars and to have left a desperate doubting in a necessity 'T is beyond all cavil that Our Saviour's opinion was positive for paying of Tribute to that Caesar because de facto he did pay it and the plain reason of it appears evidently in this his Answer Caesar's Face was upon the Coyn that is to say Caesar by Conquest was in possession of that Coyn by possessing the place where he oblidged them to take it Coyning of Money being one prerogative
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
been too gentle if cruelty had not been added to ingratitude they deprive him of all his Honours they rob him of all his Fortune they take from him the use of the Day and Light they put out his Eyes and reduce him to the company of Rogues and the miserable Bellisarius demands a charity even that Bellisarius the Chiefest General of his Age and the Greatest Ornament of the Empire who after so many Victories and Conquests accompanied with so high and cleer a Virtue and in the midst of Christendom reduced to so abject and low a misery Nor was this cruel and hasty reckoning of Justinian let slip without a cruel payment for Narces who was as well a Successor in merit as in Authority to Bellisarius who having notice of a disdain conceived likewise against him upon a single complaint resolved not to expose himself as a Sacrifice to their malice and therefore better to shake off the yoak then stay to be oppressed soon spoiled the affairs of Justinian for the Goths revolted and Fortune would not forbear to be of the party which Narces Follow'd nor to find the Barbarian where so Brave a Captain was engaged Therefore not one or many faults are to be listened to against Commanders but patiently heard and redressed but not to disgrace or loose them for such having committed a fault yet being admonished by love may endeavour by future Services to make recompence by some Noble Exploit but disgraced become Instruments often of danger and ruin to their Superiors IV. Souldiers and Mariners faults are either proper to themselves or common with others Those are common with others which other Men fall into and are corrected with like ordinary proceeding as other crimes of like nature as Man-slaughter Theft Adultery and such like Those are proper which do properly appertain to the Naval Military part and are punished by some unusuall or extraordinary punishment As are these not to appear at the over musters or calling over the Ship to serve under him he ought not to serve to vage or wander long from a Ship-board although he return of his own accord to forsake his Fleet Squadron Ship Captain Commander or Officer to leave his standing to fly over to the Enemy to betray the Fleet Squadron or Ship to be disobedient to superior Affairs to loose or sell his Arms or steal another Man's to be negligent in his Officer's command or in his watch to make a mutiny to fly first out of the Battle and the like which are very frequently set forth in the Titles of the Digest and Code of Military affairs and other like Titles which accompany them Arrian who wrote the Life of Alexander the Great observes Every thing is counted an offence in a Souldier which is done contrary to the common Discipline as to be negligent to be stubborn to be slothfull V. The punishment wherewith Souldiers and Mariners are corrected are those corporall punishments or a pecuniary mulct or injunction of some service to be done or a motion or removing out of their Places and sending away with shame By Capital punishment is understood for the most part death or at least beating with Cat with nine tayls as they commonly term it Ducking Wooden-horse Gauntlet and such like unless happily it be pardoned either for the unskilfulness of the Mariner or Souldier or the mutiny of the Crew or Company being thereto drawn by Wine Wantonness or for the commiseration or pitty of the Wife and Children of the party offending all which is left to the discretion of the Lord Admiral and others the Supream Commanders or Captains VI. It is necessary that in Armies and Fleets all manner of impiety should be prohibited especially that of Swearing and Cursing for such are sins so foolish that they unawares help Men into damnation rendering Men worse then beasts by how much the more they court that vanity of sin without any of the appendant allurements which other vitious actions are accompanied with the same in the end teaching Men to disavow GOD in their Discourse and actions by their intemperate and inconsiderate invoking him in their Oaths Against such as also against those that shall give themselves up to Cursing Execrations Drunkenness Uncleanness or other scandalous actions in derogation of God's Honour and corruption of good manners fynes and Imprisonment or such other punishment may be inflicted on them by a Court Marshall which is now reduced to the forfeiture of one day's pay but for drunkenness the same extends not to Commanders or other Commission and Warrant-Officers for they upon conviction before the Admiral shall be rendred uncapable of their Command And a Lyar convicted a Ship-board shall be hoisted upon the main-stay with 4 Braces having a Broom and Shovel tyed to his back where he shall continue an hour every Man crying A lyar a lyar and a week following he shall clean the Ship 's head and sides without board according to the antient practise of the Navy if he receives greater Wages then for an able Sea-Men then half a day's pay VI. By the Laws of Nations Spies may be sent to survey the Enemy's Force Fleet Station or Squadron and make discovery of whatsoever may give advantage to the Persons sending So Moses and Joshua did into the Holy Land on the other hand being deprehended they are to be put to death as Apian saith and by the Laws of England if any Officer Souldier or Mariner in actual Service and in pay in his Majesties Fleet or any other Person in the same shall give hold or entertain any intelligence to or with any King Prince or State being enemy to or any Person in Rebellion against his Majesties his Heirs and Successors without leave or authority from the King Admiral Vice-Admiral or Officers in chief of any Squadron they are to suffer death Now the bare receipt of a Letter or Message from an Enemy will not make a Man subject to the penalty of this Article and therefore the subsequent Article explains the precedent in which it is provided that if any inferiour Officer Mariner or Souldier shall receive any Letter or Message from any King Forreign Prince State or Potentate being an Enemy or on their behalf and if such Person does not reveal the same within 12 hours having opportunity so to do and acquaint the Superior Commander with it such Person is to suffer death so likewise if such Superior Officer or Mariner being acquainted therewith by an inferior Officer Mariner or other such Superiour Officero Cmmander or Mariner in his own Person receiving a Letter or Message from any such Enemy or Rebell and shall not in convenient time reveal the same to the Admiral Vice-Admiral or Commander of the Squadron shall suffer the like pain of death or such punishment as a Court Marshal shall inflict Now Spies are put to death sometimes justly by those that manifestly have a just cause of Warring by
severity shew'd to the Captives and those that have yielded or their yielding on condition of life not accepted if after they were convinced of theinjustice of the War they had nevertheless persisted with hatred or cruelty if they had blotted their Enemies Name with unsufferable disgraces if they had violated their Faith or any Right of Nations as of Ambassadors if they were fugitives But the Law of Nature admits not talliation except against the very individuall Person that hath offended nor doth it suffice that the Enemies are by a fiction conceived to be as it were one Body though otherwise by the Laws of Nations and by the Laws of Arms and at this day practised in all Fights the small Frigots Ketches and Smacks are to observe and take notice of the Enemies Fire-Ships and to Watch their motion and to do their best to cut off their Boats and generally the Persons found in them are to be put to death if taken and the Vessel if not taken distroy'd and the reason why the extreamity of War is used to such is that by how much the mischief is the greater by the act of such Men if executed by so much the punishment is aggrivated if taken and quarter denyâ—…d them by Law of War XIII Every Captain or Commander upon signall or order of Battle or view or sight of any Ships of the Enemy Pyrat or Rebell or likelyhood of engagement they are to put all things in the Ship in fit posture for a Fight as the breaking down the Cabins clearing of the Ships of all things that may impede the Souldiers in the preserving the Ship and themselves and endamaging the Enemy and every such Commander or Captain are in their own Person and according to their Place to hearten and encourage the inferiour Officers and common Men to fight valiantly and couragiously and not to behave themselves faintly under the disgrace of being casheered and if he or they yield to the Enemy Pyrat or Rebell or cry for quarter he or they so doing shall suffer the pains of death or such other punishment as the offence shall deserve Now though Souldiers or Mariners having oblidged themselves faithfully to serve in the Expedition or Navy yet that is to be understood no further then his or their power to do his utmost in his or their Quality for though the obligation for the Service be taken in the strickest tearms of undergoing death and danger yet it is to be understood alwaies conditionally as most promises are viz. if the action or passion may be for that Fleet or Princes advantage and therefore if the Fleet of Squadron is beaten and the Ships are diasabled and left scarce without any to defend them now the Souldiers or Mariners remaining can do no more for their Prince then die which indeed is to do nothing at all but to cease for ever from doing any thing either for him or themselves in those Streights therefore it is not repugnant to their Oath called Sacramentum Militare to ask quarter or strike and having begg'd a new Life and taken it they are bound in a new and just obligation of Fidelity to those to whom they were bound to kill few hours before neither can the Prince or Generall expect by virtue of their former obligation to him they should kill any in the place where the quarter was given however this Fidelity hath not its inception from the time of taking quarter but when the Battle is over and that time which is termed cold blood for without all controversy if a Ship be boarded and the Quarter is given yet if while the Fight lasts the Persons captives can by any possibility recover their liberty and Ships they may by the Law of Arms justly acquire the same And since impunity is granted to such unfortunate desertors yet it must be apparently evident and fully proved that they were reduced into a condition beyond all hope in the Battle and therefore the feet that forsook the Unfortunate Pompey before the field was lost were justly condemned for the breach of the Roman discipline and Law of Armes and therefore the Article hath not positively declared death only but added or such other punishment as the offence shall deserve which provision leaves the Action to be judged and punished by a Councel of War who know best what 's to be done in cases of that nature however a base or cowardly yielding or crying quarter is to be punished with death and that without mercy XIV The obeying of Orders hath in all Ages been in mighty esteem Chrysantus one of Cyrus's Souldiers being upon his Enemy withdrew his sword hearing a retreat sounded but this comes not from the external Laws of Nations for as it is lawfull to seize on the Enemie's Goods so likewise to kill the Enemy for by that Law the Enemies are of no account but such obedience proceeds from the Military discipline of several Nations by the Romans it was a Law noted by Modestinus that whosoever obey'd not his Orders should be punisht with death though the matter succedded well now he also was supposed not to have obey'd who out of Order without the Command of the General entered into any Fight For if such liberty were lawfull either Stations would be deserted or licence proceeding the Army Fleet or Squadron would be engag'd in unadvised Battles which by all means is to be avoyded M. Capello a Venetian Gentleman of an antient Extraction having the Charge of the Guarding the Venetian Gulph met with the Barbary Fleet whom he so assaulted that he burnt and took divers of them among the rest the Admirall Galley of Algier a Vessel of vast higness which he brought with him away and she remains at this day a Trophy in the Arsenall of Venice the service although Noble and Honourable and such as brought renown to the Reipublique yet in regard it was an Action exceeding his Commission he was adjudged to punishment but his great Merit and Alliance preserved his Life such an exact obedience that Seignory expects to be pay'd to her Orders be the success never so Glorious And by the eleventh Article every Captain Commander and other Officer Seaman or Souldier of any Ship Frigot or Vessel of War they are duely to observe the Commands of the Admirall or other his Superior or Commander of any Squadron as well for the assaulting and setting upon any Fleet Squadron or Ships of the Enemy Pyrat or Rebells or joyning Battle with them or making defence against them as all other the Commands of the Admirall or other his Superior Commander the disobeying of which subjects them to the pains of death or such other punishment as the quality or neglect of his offence shall deserve XV. Again every Captain and all other Officers Mariners and Souldiers of every Ship Frigot or Vessel of War shall not in time of any Fight or Engagement withdraw or keep
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
the Law Maritime nay and the Common Lawyers too have controverted are now out of debate scarce any misfortune that can happen or provision to be made but the same is taken care for in the Pollicyes that are now used for they Ensure against Heaven and Earth Stress of Weather Storms Enemies Pyrats Rovers c. or whatsoever detriment shall happen or come to the thing Ensured c. is provided for VIII If a Merchant Ensures such a Ship generally and in the Pollicy it is expressed of such a Burthen the Ship happens then to be loaden and after miscarries the Ensurer shall not answer for the Goods but onely for the Ship It matters not in the Pollicy whether the particular Wares and Goods are named but generally upon the principal Wares and all other Commodities laden or to be laden for the Ensured or for his account or for any other X. If a Ship be Ensured from the Port of London to Cales and before the Ship breaks ground takes fire and is burnt the Assurors in such case shall not answer for the Adventure begun not till the Ship was gone from the Port of London but if the words had been at and from the Port of London there they would upon such a misfortune have been made lyable If such an Assurance had been from London to Cales and the Ship had broke ground and afterwards been driven by storm back to the Port of London and there had took fire the Ensurers must have answered for the very breaking of ground from the Port of London was an inception of the Voyage XI If Goods are Ensured in such a Ship and afterwards in the Voyage it happens she becomes leaky and creazy and the super Cargoe and Master by consent become Freighters of another Vessel for the safe delivery of the Goods and then after her relading the second Vessel miscarries the Assurors are discharged But if there be these words The Goods laden to be transported and delivered at such a place by the said Ship or by any other Ship or Vessel untill they be safely landed then the Ensurers must answer the misfortune XII If a man Ensures 5000 l. worth of Goods and he hath but 2000 l. remitted now he having ensured the real Adventure by the Law Maritime all the Assurors must answer pro rata But by the opinion of some onely those first Subscribers who underwrit so much as the real Adventure amounted to are to be made lyable and the rest remitting their Premio 10 s. per Cent. deducted out of the same for their subscriptions are to be discharged XIII A Merchant Ensures his Goods from London to Sally and there to be Landed the Factor after arrival having opportunity sells the Cargo aboard the same Ship without ever unlading her and the buyer agrees for the Freight of those Goods for the Port of Venice before she breaks ground the Ships takes fire the Assured is absolutely without remedy for the property of the Goods becoming changed and Freight being contracted de novo the same was as much as if the Goods had been landed And so it is if the Factor after her arrival had contracted for the Freight to another Port and the Ship had happened to take fire the Assurors are hereby absolutely discharged for ever XIV If a Ship be Ensured from London to and blanck being so left of purpose by the Lader to prevent her surprize by the Enemy in her Voyage she happens to be cast away though there be private Instructions for her Port yet the Ensured sit down by the loss by reason of the uncertainty XV. After notice of loss the Ensured if he doth think fit for that he hath Ensured the most of his Adventure or that he would have the assistance of the Assurors when there is hope of Recovery of the Adventure he may then make a Renunciation of the Lading to the Assurors then he comes in himself in the nature of an Ensurer for so much as shall appear he hath born the Adventure of beyond the value Ensured But if the Merchant shall not renounce yet there is a power given in the Pollicy for him to travail pursue and endeavour a recovery if possible of the Adventure after a misfortune to which the Assurors are to contribute the same being but a trouble to give ease to the Assours If prohibited Goods are laden aboard and the Merchant ensures upon the general pollicy which alwayes contains these words Of the Seas Men of Warr Fire Enemies Pyrats Rovers Theeves Jettezons Letters of Mart and Covenants Arrests Restrainment and Detainments of Kings and Princes and of all other persons Barratry of the Master and Marriners and of all other perils lossâ—…s and misfortunes whatsoever they be and howsoever they shall happen or come to the hurt and detriment of the Goods and Merchandize or any part and parcel thereof whether if such Goods be lawfully seized as prohibited goods the Ensurors ought to answer It is conceived they ought not and the difference hath been taken where Goods are lawful at the time of Lading to be imported into that Country for which they are consigned for but by matter ex post facto after the lading they become unlawful and after arrival are seized there the Assurors must answer by virtue of the Clause And all other perils c. But if the Goods were at the time of lading unlawful and the Lader knew of the same such Assurance will not oblige the Assurors to answer the loss for the same is not such an Assurance as the Law supports but is a fraudulent one So it is if a Merchant will Freight out Wooll Leather and the like or send out Goods in a Forraign bottome and then make a Pollicy the Ship happens afterwards to be taken by reason of which there becomes a forfeiture of Ship and Lading the Ensurers are not made subject to answer the damage for the very Foundation was illegal and the Law supports only those Assurances that are made bona fide for if otherwise and men could be Ensured against such actions they would destroy Trade which is directly to thwart the institution and true intentions of all Pollicyes But if Goods should happen to be lawfully Ensured and afterwards the Vessel becomes disabled by reason of which they relade by consent of the super Cargoe or Merchant into another Vessel and that Vessel after arrival proves the Ship of an Enemy by reason of which the Ship becomes subject to seizure yet in this case the Ensurors shall answer for that this is such an accident as is within the intention of the Pollicy Several men lade aboard Salt without distinction not putting them in Sacks and the like the Ship arrives the Master delivers to their Principals according to their Bills of Lading as they come one by one it falls out that some of the Salt is wâ—…sht or lost by reason of
vel Bodun fundum aut profundum signet in quem navis fundum vel ipsam navem ejusque usum mutuo accepta est pecunia sed postea latius pro faenore nautico etiam usurpari caepit And the Money so taken up by the Master is done upon great extremity and that for the compleating of the Voyage when they are in distress and want in some Forreign parts and indeed such taking up is indeed in the nature of Mortgaging the Ship for le Neife oblige al payment de ceo c. And in the Instrument there is a Clause that expresses that the Ship is engaged for the performance of the same Moneys that are advanced are upon two Securities the one is on the bare Ship the other upon the person of the Borrower sometimes upon both The first is where a man takes up Moneys and obliges himself that if such a Ship shall arrive at such a Port then to repay perhaps double the sum lent but if the Ship happens to miscarry then nothing XIII So likewise some will take up Moneys the condition reciting Whereas there is such a Ship naming her bound to Amsterdam whereas such a man is Master whereas indeed there is no such Ship or Master in nature that if that Ship shall not arrive at such a place within 12 months the money agreed on to be paid shall be paid but if the Ship shall arrive then nothing The first of these is honourable and just according to the laudable practice among Maritime persons and though the advantage runs high as 20 30 nay sometimes 40 per Cent. without consideration of time for the Moneyes are to be paid within so many dayes after the Ships safe arrival yet in regard the Adventure is born by the Lender for if the Ship perishes the advancer loses the Lawes and Practice of all Maritime Countries allow of the same And therefore by the Common Law if an Action of Debt be brought on such an Instrument the Defendant cannot plead the Statute of Usury And so it was adjudged where one Sharpley had brought an Action of Debt on a Bond for Moneys taken up upon Bottomery The Defendant pleads the Statute of Usury and shewed that a certain Ship called the made a Voyage to Fish in New-found Land which Journey might be performed in eight months and the Plaintiff delivered 50 l. to the Defendant to pay 60 l. at the return of the Ship to D and if the said Ship by Leakage or Tempest should not return from Newfound-Land to D then the Defendent should pay the principal money and if the Ship never returned then nothing to be paid Upon Demurrer it was adjudged the same was not Usury for if the Ship had stayed at Newfound-Land 2. or 3. years yet at her return but 60 l. was to be paid and if she never returned then nothing The other advance which is upon a fictitious supposition of a Ship and Master where indeed there is no such in Nature is more unconscionable the same being the common practice that 's used amongst the Italians and now on this side the Water The same is as to internal Right unjust and cannot now be determined since it was not long since adjudged that such Contract was good according to the Common Law of this Realm and that on a Special Verdict XIV Most certain it is that the greater the danger is if there be a real adventure the greater may the profit be of the Moneys advanced * And so hath the same been the Opinion of Civilians and likewise some Divines though some seem to be of opinion That any profit or advantage ought to be made of Moneys so lent no more than of those that are advanced on simple loan and on the peril of the borrower However all or most of the Trading Nations of Christendome do at this day allow of the same as a matter most reasonable by reason of the contingency or hazard that the Lender runs and therefore such Moneys may be advanced several wayes and a profit may arise so that there runs a peril on the Lender There is likewise a second way of advancing of Moneys called Usura Maritima joyning the advanced moneys and the danger of the Sea together And this is obliging sometimes upon the Borrower's Ship Goods and Person The produce of which by agreement will advance sometimes 20 30 and sometimes 40. per Cent. As for Instance A private Gentleman has 1000 l. ready money lying by him and he has notice of an Ingenious Merchant that has good Credit beyond Seas and understands his business fully applyes himself to him and offers him 1000 l. to be laid out in such Commodities as the Merchant shall think convenient for that Port or Countrey the Borrower designs for and that he will bear the adventure of that Money during all that Voyage which he knowes may be accomplished within a year hereupon the Contract is agreed upon 6 per Cent is accounted for the Interest and 12 per Cent. for the Adventure outwards and 12 per Cent. for the goods homeward so that upon the return the Lender receives 30 per Cent. which amounts to 1300 l. The Lender in this case hath a good bargain no question Now let us see what advantage the Borrower hath 1. The Borrower prevents the taking up the like Sum at Interest which comes to 6. per Cent and Brocage which comes now in this Age thorough the generosity of the Merchant and Covetousness of the Serivener at 1. or 2. per Cent. more and then the same is let out but for 6. months and then the Scrivener inevitably at the 6. months end sends his Note that his Friend expects his Moneys to be yaid in so that to stop that gapp there must be Continuation which is at least one per Cent. more besides the obliging of Friends in Securities 2. The Assurance prevented which perhaps may come to between 5 and 20 per Cent. according as the Times are and common prudence will never suffer a Merchant to venture 2. parts of 3. parts of his Estate in one Bottome without assuring 3. As he shall not have occasion to Ensure so it may be a great occasion of preventing the common Obligation of his Ensuring of others the which in a generous Merchant in honour cannot be denyed the Premeo running pretty reasonable 4. It prevents the parties running the Risque and danger of the Seas Enemies or any other fatal loss and hath been a means to introduce a mans credit in a short time at lesser charge if not to put him in in a Condition not to be beholding to such a fair though chargeable means And this cannot be Usury by the Lawes of this Realm for the Risque and Danger that the Lender runs VI. There is also another way but that is both Honest and Honourable called Usufruite that is a Stock in a Company or Society which is perpetual