extinguish Letters of Marque and that for the Reason aforesaid The King having the Power of Peace and War Mr. Carew cannot be a good Subject to involve the Publique by executing these Letters of Marque in times of Peace who as I am informed had 30 Ships out in time of War And the Clauses contained in the Patent that no Peace shall extend to the prejudice of the said Letters Patents before satisfaction was a Clause unusual and incerted by surprize and ought not to have been and is in no sort obligatory Wherefore I give Iudgment That the Letters Patents shall be brought into Court to be cancelled and the Enrollment thereof razed ☞ The Argument turns upon his Lordship the King being sole Legislator of Peace and War The Clause of continuance in the Patent hath the force of an Act of Parliament His Lordship would be both Judge and Party and sole Arbiter if a Writ of Error did not lie in the Kings-Bench and finally in Parliament to reverse his Erroneous Iudgment A Copy of the Order in Chancery Veneris 26 die Maii Anno Regni Caroli secund ' Regis tricesimo quarto Inter Dom ' Regem Quer ' Edmund ' Turnor Mil ' Georg ' Carew Ar ' Defend ' Lord Chancellor THe Record of the Demurrer joyned in the Pety-Bag upon a Scire facias brought by Mr. Attorney General on the behalf of His Majesty for revoking certain Letters of Reprizal granted to the Defendents the 19th of May 1665. coming this present day to be argued before the Right Honourable the Lord high-High-Chancellor of England by vertue of an Order of the 20th instant at which time the Record was read The Defendents Councel desired longer time But upon hearing of Mr. Attorney-General on the behalf of the King his Lordship declared that the matter in debate did concern the Publick and could not admit of any further day to be given to the Defendents And his Lordship having been attended with the Record and duly considered the whole matter is of opinion and doth order That the said Demurrer do stand and that Iudgment be entred up for the King for the revoking the said Letters Patents and doth further order That the Enrollment thereof be vacated upon Record and that the Defendants do forthwith bring into this Court the said Letters Patents and all Exemplifications and Duplicates thereof under Seal to be cancelled Ex. Per George Edwards Deput ' Register On the next morning the Lord Chancellor was pleased in open Court to give order that the Attorney-General should be careful in drawing up the Judgment and that the Clerk of the Pety-Bag should enter it upon the Roll aud exemplifie the whole Record under the Great Seal and send it to the Admiralty-Court to remain there It may be observed That the Scire facias being returned in Easter-Term 1681. and the Plea filed of the same Term and the Demurrer coming in not before Easter Term last the Attorney-General had a whole year to consider of the said Plea which is admitted as to the matters of Fact in all particulars by the said Demurrer and since sworn to be true by one of the Defendants So that the Attorney-General making no Reply insisted only upon the Law The Questions therefore that do naturally arise upon it are Whether the Scire facias be a Legal and warrantable Writ in this Case for the Lord Chancellor to ground his Judgment upon for repealing the Letters Patents without satisfaction so solemnly obtained under the Great Seal of England according to the Laws of the Land or Whether the Plea be not sufficient in Law to support and maintain the Letters Patents until the Debt and Damages be recovered BUt before we come to answer the Lord Chancellor's Arguments it 's absolutely necessary to speak a word or two concerning the Scire facias and the Order entred by the Register that the Defendents should bring the Letters Patents and all Exemplifications and Duplicates thereof under Seal into Court to be cancelled It 's recited in the Record made up pro restitut ' faciend ' Carolo tunc Comiti Salop al' in eisdem Literis Patent ' c. whereas there is no such Patent as is mentioned in the Scire facias Notwithstanding it 's affirmed in the said Order of the 26th of May 1682. That his Lordship had been attended with the Record and duly considered the whole matter and yet in the second Line of the said Record it 's written Carolo tunc Comitis Salop whereas in the Letters Patents for Reprizals it 's mentioned for restitution to be made to Francis Earl of Shrewsbury and others So that the Foundation being bad the Structure must fall to the Ground there being no such Patent as the Scire fas ' recites Whereupon a Distringas is since issued forth to the Sheriff of Mid. to distrain all the Lands and Tenements of George Carew within his Bayliwick until the said Patent Exemplifications and Duplicates thereof under Seal be brought into Court and cancelled which is impossible for him to do being out of his power the said Duplicates and Exemplifications being in the hands of several Persons beyond the Seas with Assignments and Covenants that they shall continue effectual in Law until the Debt of 151612 l. with Damages shall be recovered and received according to the words of the Grant and the King's Declaration Wherefore it would be both Honourable and Just for any Ministers of State in England or Holland to bring the Scire facias in one hand and Money to satisfie the Debt and Damages in the other And without that Quid pro quo under his Lordship's favour the Patent cannot be legally revoked repealed or made void Yet for satisfaction of all Mankind that the Defendents will abide by their Plea they have retained their Councel to give modest Answers to the Lord Chancellor's Arguments as followeth who holds it convenient to begin at the root where his Lordship ended That the Clause of continuance was unusual and incerted by surprize and ought not to have been and is in no sort obligatory 1. The stipulation for extinguishing all other Losses and Damages by the Treaty 1662. from the like Sovereign Remedies 2. The States denyal of making satisfaction for the Spoils and Depredations of those two Ships according to the said stipulation 3. The Services and Sufferings of Courten and Pyndar for the Crown of England so eminently known to all Parts of the World 4. And the great Supplies given to His Majesty in Parliament for the Protection of His Subjects at the very time the said Patent for Reprizals was passing through Sir Heneage Finch's Office when he was Solicitor-General upon the Negotiation of Mr. Gilbort Crouch were four invincible Arguments for the King to pass this Grant of common Right to his Subjects with those two Clauses of a continuando until the Debt 151612 l. wiâ—h Costs and Damages should be recovered and received the King having declared so much
faithfully stated for satisfaction of all persons concerned GEorge Carew of Richmond in the County of Surrey Esq Administrator of the Goods and Chattels of Sir William Courten Knight deceased with his Will annexed having contested at the Hague and Amsterdam after the Kings Restoration for the space of fifteen Months concerning the Spoils and Depredations upon Sir William Courten's Ships and Factories A Provisoe was made in the fifteenth Article of the Treaty concluded at LONDON between the King and the States General the 4th of September 1662. that satisfaction and reparation should be made by the East-India Company of the Netherlands for the two Ships named the Bona Esperanza and Henry Bona Adventura with their Freights and Lading In pursuance of the said Treaty Carew having Expended and Disbursed divers great Sums of Money both in Holland and England without effect he was prompted by several Ministers of State at Whitehall to Address himself by Petition to the Commons in Parliament in the year 1664. for Relief who referred the same to the Committee of Grievances accordingly Sir Tho. Clifford then Chairman of the said Committee after Examination of all the Papers and Depositions concerning this Case brought in by Sir Thomas Littleton Reported that the Loss and Damages amounted to the Sum of One Hundred and Fifty Thousand pounds Sterling and upwards hinting at the evil consequences thereof to the Honour and Interest of the Nation if those Damages were not satisfied and repaired unto the Families of Sir William Courten and Sir Paul Pindar who had merited so much from the Crown and Kingdom Soon after a War insued whereupon the Commons Voted to assist the King with their Lives and Fortunes unto whom they granted several Millions of Money for the Prosecution thereof In the Month of May 1665. the Cause concerning the said Spoils and Depredations which had been debated in the Admiralty in Council and in Parliament was reduced to a certainty for satisfaction by Letters Patents for Reprisals under the Great Seal of England wherein Sir Edmund Turnors Name is used in Trust Carew having the Interest in Law on the behalf of himself and others the Dutch Ambassador then Resident in England had notice of all the proceedings as it is recited in the body of the said Patent which passed through the greatest Offices of Trust in the Kingdom upon mature Consideration The Warrant for passing the said Patent issued out of the Lord Arlingtons Office then Principal Secretary of State containing two clauses for continuance of the Grant until the Debt of 151612l with Damages should be recovered which was debated three Months by the Lord Chancellor Hyde before it passed the Great Seal Sir William Turnor and Sir Robert Wiseman the Kings and Dukes Advocates general being often consulted therein affirmed That it was consonant to the Laws of Nature and Nations that the said Debt and Damages should be satisfied and repaired A President thereof being shewn under the Great Seal in the late Kings time in the Case of Paulet a Merchant who had the like Letters of Reprisals against the Spaniards to continue effectual in the Law until the Debt and Damages should be Reprised who upon a Peace made with Spain had the remainder of his Debt unsatisfied In the year 1666. Carew and the Creditors claiming under him procured several Duplicates and Exemplifications of the said Letters Patents and put the same in execution by deputations against the Hollanders who Trading in divers Bottoms under the colours of Sweeds Hamburgers and other Neighboring Princes and States in Amity with England the very charges of equipping out private men of War could not be gotten the Ships brought in for Prizes being reclaimed and restored as by the Rigister of the Admiralty Court appears However Sir William Coventry then Secretary to his Royal Highness complaining That those special Letters of Reprisal obstructed the Lord High-Admirals profits of Tenths by Letters of Marque in time of War that the Kings Ships were deprived of Seamen A Proclamation issued out the 10th of August 1666. to suspend the Execution of the said Letters Patents protempore Notwithstanding his Royal Highness was gratified with a Months Tax for his Heroick Courage at Sea In the year 1667. a Peace was concluded at Breda whereby all Letters of Reprisals were mentioned to be revoked whereupon the said Carew and the Creditors remained passive until the year 1671. when another War was proclaimed the King having particularly owned this Cause declaring That he was obliged in Iustice and Honour to see that Debt and Damages mentioned in the Letters Patents aforesaid to be satisfied and repaired the Lords of the Privy Council having also affirmed That all past Treaties were absolutely cancelled as if no such Treaties ever had been made Then the said Carew was dispatcht away with Orders of the Councel Table Referrences and Instructions with the Kings Letters to his Ambassadors and Plenipotentiaries to insist upon plenary satisfaction and Reparation in any Treaty to be made with the States The King expressing in his Leters under his Sign manuall his care to protect his Subjects in their just Rights as well as to assist them in the recovery thereof In the Month of August 1672. It so hapned that Carew and his Servants were Imprisoned by the States of Holland as Spies for seeking after Justice and detained close Prisoners without access and threatned with Death during the War which ended in a common Alliance in the year 1674. upon the consideration of Eight hundred Thousand Patacoons inter alia to be paid to the King in four years for Damages yet three parts thereof were assigned to the Prince of Orange and the fourth part received for other services by Alderman Backwel upon his Majesties account but the Debt and Damages ascertained for the Spoils and Depredations aforesaid was left in statu quo to the remedy at Law prescribed In the year 1680. divers of the Creditors of Sir William Courten Sir Paul Pindar and Sir Edward Littleton having importuned the said Carew to put in execution the said Letters of Reprisals since they had no satisfaction either out of the Prizes taken by the Kings Ships during the War nor out of the said Patacoons or any other waies or means whatsoever notwithstanding their several Addresses to the King the States and the Prince of Orange for that purpose Then Carew being advised that several Writs at Common Law in case of a Spoil at Sea lay against the Subjects of Forraign Princes and their Goods found in England until the Statute of Edw. the third provided that the only Remedy should be by the Law of Marque or Reprisals without Fraud or Deceit for all Damages upon Spoils which being ascertained and reduced into a Grant under the Great Seal of England became such an Interest vested in the Grantees coupled with an Authority that could not be taken away without satisfaction made to the Parties interessed and injured And further advised That Soveraign
undertakes to Indempnifie and discharge the States-General and their Subjects concerning the same I. It is therefore humbly proposed That His Majesty should in lieu thereof grant and assign the 4 and ½ per cent arising out of the Barbadoes and the Careebe Islands and the wast Lands there to certain Trustees for the use and benefit of William Courten Grand-child and Heir of Sir William Courten and the Creditors of his Father and Grand-father who were the Original Proprietors of the Island of Barbadoes whereof they were dispoiled by Iames late Earl of Carlisle and his Adherents to the insupportable Damages of Sir William Courten his Family and Creditors That in Contemplation of Sir Paul Pyndar's great Services and Sufferings for the Crown of England and more particularly for the vast sums of Money lent to the late King Charles I amounting to the sum of One hundred and thirty thousand Pounds upon the Allom-Farm Sugar-Farm Collectors of the Papists Compositions in the Northern Counties and other Branches of the Revenue which were diverted in the late troublesom times to other uses leaving Sir Paul Pyndar's Assignments unsatisfied and many of his Creditors undone II. It is therefore humbly proposed That there may be a Privy-Seal granted for Fifty thousand Pounds upon the Reference from His Majesty that lies before the Lords Commissioners of the Treasury to be raised out of the said Papists Estates at the instance and Petition of Richard Powel Esq and Nathaniel Hill Gent. upon their old Compositions in the eleven Northern Counties as they paid under the Collection of Thomas Viscount Wentworth in the year 1638. which they are willing now to satisfie accordingly That whereas there are divers great Debts and Sums of Money owing and resting in the hands and posessions of the Sons Heirs and Executors of Jacob Pergens of Amsterdam and Peter Boudaen of Middleburgh in Zealand that belongs to the Estates of Sir William Courten and Sir Paul Pyndar upon Bills of Exchange Obligations for Money lent and private Contracts in Trade and Merchandizing amounting to the sum of One hundred and twenty thousand Pounds and upwards Whereupon there are Actions depending in the ordinary Courts of Iudicature in Holland and Zealand ready for Sentences and final Decrees wherein Iustice is positively denyed upon vain pretences of extinguishments and mortifications by Treaties of common Amity and Alliance III. It is most humbly proposed That His Majesty would be graciously pleased effectually to recommend the Petition of the Creditors that lies before the Lord Conaway to that purpose for speedy satisfaction to be made therein for relief of His most Oppressed Subjects POSTSCRIPT KInd Reader before you come to peruse the Answer to the Lord Chancellor's Arguments when his Lordship gave that hasty Iudgment for the King upon the Scire facias and Pleadings relating to the Letters Patents for Reprizals without hearing Counsel of the other side It 's necessary that you should first read the Abstract of the Scire facias brought by Sir Robert Sawyer His Majesty's Attorney-General and the Plea thereunto The Demurrer and Rejoynder thereupon being things of form and course to bring the whole matter in Issue are omitted herein for Brevity-sake The Plea being filed in Easter-Term 1681. lay dormant until Easter-Term 1682. Then the Demurrer was brought in generally that the Plea was not sufficient in Law c. Whereupon the Defendents persisting in their Rejoynder that it was the Record was made up and read in Court accordingly An Abstract of the Scire facias returned into the Pety-Bag-Office rendred out of Latine into English CHARLES the second by the Grace of God of England Scotland France and Ireland King c. To the Sheriff of Middlesex greeting Whereas by our Letters Parents under Our Great Seal dated the 29th of May in the 17th year of Our Reign for restitution to be made to Charles then Earl of Shrewsbury and others for certain Ships Goods and Merchandizes therein mentioned that were unjustly taken and detained from them by the Subjects of the States-General of the United Provinces We gave License and Authority to Sir Edmond Turnor Knight and George Carew Esq their Executors Administrators and Assigns on the behalf of themselves and others to set forth several Ships and Pinnace's to Sea from time to time to take and seize the Ships Goods and Merchandizes of the said States and their Subjects and to detain and keep the same as lawful Prize until the said Turnor and Carew shall have recovered the Money in the saeid Letters Patents mentioned with their Costs and Damages as by the said Letters Patents with the special Clauses and Provisoes therein contained may appear With this that by Articles of Peace and Amity between Vs and the said States-General at Breda July 21. 1667. in the 19th year of Our Reign and ratified under Our Great Seal Aug. 24. following It was agreed and concluded that all Letters of Reprizals Marque and Counter-marque general and special should be inhibited and revoked so that the Subjects of either Party should not exercise any Hostility or Violence afterwards upon any pretext or colour whatsoever And by other Articles of Peace and Amity between Vs and the said States concluded at Westminster Febr. 9. in the 26th year of Our Reign and ratified under Our Great Seal on the 28th of the same month and proclaimed accordingly that the Treaty made at Breda was renewed and confirmed And that further by Our Letters Patents dated June 6. in the 32d year of Our Reign We had superseded revoked and made null and void the said Letters Patents bearing date May 19. in the 17th year of Our Reign as aforesaid And that all and every the Powers Authorities Clauses Commissions Grants and Licenses in the said Letters Patents confirmed to the said Turnor and Carew were thereby made null and void and of no effect in the Law Wherefore to the end that the Treaties of Peace and Amity between Vs and the States might be kept firm and that a further remedy might be provided for that purpose We command you by good and lawful men of your Bailywick to summon the said Sir Edmond Turnor and George Carew to be and appear before Vs in Our High-Court of Chancery 15 days after Easter to shew cause if they can why the Letters Patents aforesaid should not be brought into Chancery and the Enrollment thereof cancelled and made null and void Witness Our Self at Westminster the 12th day of February in the 33d year of Our Reign By virtue of which Writ the said Sir Edmond Turnor and George Carew being summoned and the said Writ returned by Slingsby Bethel and Henry Cornish Esqs Sheriffs they appeared and pleaded in Easter-Term accordingly as follows An Abstract of the Plea filed in the Pety-Bag-Office in Easter-Term 1681. THe aforesaid Sir Edmond Turnor and George Carew by Matthew Pyndar Esq their Attorney comes and defends the force and injury c. craving Oyer of the Letters Patents and pleaded the
in his Speech to both Houses of Parliament and expressed in the very body of the Patent in these words For relief of Our said Subjects whom We take Our selves in Honour and Iustice concernd to be satisfied and re-paid So that the King declares Himself equally Great and Just. Therefore neither surprized nor deceived in this Grant of Reprizals that had passed the Test of all the chief Officers of State and Trust in the Kingdom whose Judgments are Arraigned by questioning the validity of the said Grant The reasons are very obvious to all Mankind that the Patent ought to be so worded until the Debt and Damages shall be recovered and received for that there is no other remedy for the Subjects relief but such Grants grounded upon the Law of Marque after Justice denied in the Case of a Spoil This Clause of continuance distinguisheth between general and particular Reprizals the one being an Act of War the other a Process at Law and out of the King's Power to obstruct the restitution of this Debt and Damages to the persons interessed and injured otherwise the remedy would prove a Grievance after such vast Expences in ascertaining the Debt and Damages according to the Rules of Law if the Grant should not be obligatory It is in the Power of the States of Holland or the King to satisfie this Debt and Damages to make good the King 's own words and preserve His Honour and Justice entire which ought to be kept Sacred and Inviolable And if the King cannot pardon the least Trespass when sued for reparation in the ordinary Course of Law à fortiori He cannot pardon a Spoil after a Judicial Grant to recover it according to the Laws and Statutes of the Realm General Letters of Marque in time of War are ambulatory and revokable at Pleasure being usually granted to all persons in all Nations that will ask for the same to weaken the Enemy as they did at Oast-End Dunkirk Flushen and Diep in the times of War between Spain and England France and England and Holland and England and those are called Privatters or Private men of War of whom the Lord High-Admiral hath a tenth part of all Prizes And these are the Letters of Marque the Lord Chancellor so often mentions in his Arguments whereof there are hundreds of Precedents in the Courts of Admiralty in England Holland France and Spain which are Temporary Grants and determinable at Pleasure or certain days prefixt under the Seal of the Admiralty By the sacred prescriptions in Holy Writ restitution is to be made double the value of the property injuriously taken which implies the Charge of Prosecution and if the Trespasser be not able to satisfie he shall be Sold for his Theft or kept for a Ransom Upon this ground the old Writs in the Register and F. N. B were made and our Ancestors were so careful for the preservation of every English-mans Right and Property and the encouragement of Navigation and Commerce That Merchants Strangers resident in England and their Goods were Arrested by those Writs for satisfaction of Injuries done at Sea by the People of that Kingdom or Nation that did the wrong whereof they were Subjects But upon the Petition of the Merchants Staplers and others to the Parliament in the 27th of Edw. 3. c. 17. The force of those Writs were taken away and it was ordained and Enacted by the same Parliament That all Persons Spoyled at Sea shall have the Law of Marque without fraud or deceipt that is of taking the value of the Loss and Damage again Bracton Says Quod nihil aliud potest Rex in terris cum sit Minister Dei Vicarius quam solum quod de jure potest Every Man hath a Right to Justice and every Subject of England having a Fundamental property in his Goods and a Fundamental liberty of his Person It is repugnant to the Laws of God Religion and Property to take away our Goods for reason of State without price or satisfaction he is not a Subject but a Slave that suffers his Substance to be taken from him against his Will Infinite are the Arguments that may be used and deduced from the Law of Reason and Natural Justice in the vindication of this Patent However its neccessary to answer the Lord Chancellour Gradatim to his Arguments aforesaid His Lordship was pleased to say That the Chancery had an Admiral Iurisdiction by the Statute 31. Hen. 6. cap. 4. for the speedy relief of Strangers Robbed at Sea by the Kings Subjects His Lordship would here beg the question and have all Mankind to take it for granted That those who Act under this His Majesties Royal Charter and Authority are Robbers and Theeves Notwithstanding the express words in the Patent That it shall be lawful for them to recover the said Debt and Damages although a Peace for General Reprizals concerning the Dominion of the Sea should be concluded It s true the said Statute of Hen 6. provides a remedy for those that have safe Conduct and are Robbed by the Kings Subjects The Lord Chancellour calling to him any of the Judges of either Bench who upon Bill of Complaint shall cause Restitution to be made of Ships and Goods to the parties grieved This Statute may be still in Force but not practicable since the Odious and Arbitrary power of the Admiralty Court was taken away by the Statute of Hen. 8. in the 28th year of his Reign for Tryal of Piracy by Jurors according to the course of the Common Law However the Statute of Hen. 6. recited by his Lordship comes not to this case upon the Scire Facias But it s enacted and ordained by the Statute made in the 20th year of Hen. 6. cap. 1 And several other Statutes of this Realm That all Letters of safe Conduct Treaties and Leagues of Amity and Alliance shall be Inrolled of Record in Chancery or else not to be of any Force or Effect in the Law And the Treaty at Breda being not Inrolled or made any matter of Record in Chancery whereby the Kings Subjects might have recourse thereunto cannot any ways affect this grant to Turnor and Carew And many proper Officers have lost their Heads in former ages for their miscarriages not inrolling in due time such publick Treaties Leagues and Alliances It s also true as the Lord Chancellour observes the Letters Patents to Turnor and Carew were granted in time of War for an injury done to private Persons in time of peace but provided that no Subsequent peace should affect it without a recovery or satisfaction to be made for the Debt and Damages either by force of the Grant or Composition made with the Persons interessed The Fiat passed in the month of May 1665. But the proceedings that brought it to that conclusion continued de die in diem ever since the Treaty of Alliance made in the year 1662. Wherein it was concluded and agreed That the said Debt and Damages so assertained and Liquidated
should be satisfied and repayed Yet admitting this Treaty at Breda concluded upon the surprize of Chattam had been duly Inrolled and made a matter of Record in Chancery It was afterwards cancelled disanulled and openly extinguished by Proclamation in the year 1672. And particularly signified to His Majesty by a report upon a reference to five Lords of the Council Table concerning the Debt and Damages mentioned in the Letters Patents aforesaid In these words That the States General having wholly cancelled all past Treaties and Agreements and left your Majesty and your Subjects as free in all iustice and Equity as if they never had been made We therefore humbly presume to report our Opinions to your Majesty that it is now but just and seasonable for your Majesty to insist upon reparation for the Debt and Damages aforesaid This reference was made to the Lord Arlington Lord Ashley Sir Thomas Clifford Sir Iohn Trevor and Sir Iohn Duncomb by Order of Council 22. of March 1671. Now whether a Treaty never Inrolled and afterwards Cancelled by Order of Council and Proclamation should be properly insisted upon in any Judicial Writs is fit for another Court of Judicature or Parliament to resolve It 's granted that after a peace concluded all Temporary Letters of Marque having a bare Authority in themselves are for reasons of State totally Extinguished in regard those Letters of Marque had not an Authority coupled with an Interest A general Letter of Marque or Reprizal as before it 's said is an Act of War A particular or Especial one is a process at Law which is our case Letters of safe conduct usually granted to Foreign Ambassadors and other Persons Upon Emergent occasions are in the nature of a Supersedeas to any Commander that hath a Commission or general Letter of Marque or Privateer so properly called as before nor shall they be interrupted by any Person that hath a speciall Commission grounded upon the Law of Marque and this is consonant to reason of State and the Law of Nations And it is not denyed but that a Truce between Enemies supersedes all Temporary Letters of Marque being Acts of War but not special Letters of Marque or Reprisals which take their rise from Spoyls Depredations committed in times of Peace upon particular men or Companies that becomes a personal injury And the reason is plain for that the Law of Marque and Grants thereupon are consistent with times of Peace and the strictest Amity and Alliance between Sovereign Princes and States Captions thereupon being in the nature of Seizures in a hundred for a Robbery upon a private person before Sun-set which comes to a common Average to prevent a failer of Justice It 's observed that Sovereign Princes holds the Scepter in one hand and the Globe in the other The Sword is carried before them by some Chief Minister of State to shew that Justice is to be duely Administred by Officers that are accomptable for their miscarriages By the Law of England the King can do no wrong He is obliged by Oath to protect His Subjects in their Rights Properties and Estates Therefore His Ministers cannot take them away Yet no man of sence will denie but that the King for a publick good may by due means and ways make void even the Letters Patents in this case of Reprisal that is to say as it 's observed before with Money in the right hand of a Lord Treasurer Dutch Embassador or Lord Chancellor and the Scire-facias in the left hand for the Grantees to shew cause the Money being payed why they should not bring the Letters Patents into Court to be Cancel'd Treaties of State if they be repugnant to the Law of God the Law of Reason or the Laws and Statutes of England ipso Facto they are void in themselves The third Article of the pretended Treaty at Breda concluded in the year 1667. after the Surprize at Chatham says that all Offences Injuries Damages and Losses sustained on either side by the King or the States or their Subjects during this War or at any time before upon any cause or pretence whatsoever should be totally expunged and buried in Oblivion and all Actions at Law concerning the same Now if any forced Interpretation should be put upon this Article so generally Penned that all private differences of meum tuum between particular persons of either Nation should be comprehended in this Article it 's void because it s not in the Power or Prerogative of any Prince to hinder the due course of Law for a particular debt or personal injury Admit that a Hollander were indebted to an English-man before the Treaty at Breda for goods Sold or sent to make Sale of and the Dutch-man should plead specially the Treaty at Breda in Bar to an Action brought for the Money it would not hold good in Law for that it cannot be any ways intended that particular Debts and Actions should fall under the considerations of such Offences Injuries Losses and Damages mentioned in that Article which generally relates to Kings and States As for Mr. Carew his Plea to the Scire Facias and Affidavit annexed speaks sufficiently for his Justification Persisting That no restitution is made for the 151612 l. or any part thereof although Sir James Butler and others are ravishing his Estate from him upon Fore-closures of Equity even for Moneys lent upon account of prosecuting this Cause There was never such a president since the Creation that a particular Interest and Property so Liquidated and Established for satisfaction and reparation under those circumstances according to the Laws and Statutes of this Realm wherein so many Families are concerned as the Creditors of Sir William Courten and his Son Sir Paul Pynder and Sir Edward Littleton should be so slighted and contemned The Lord Chancellor well observed it concerned the publique it 's very true it concerns the publick Honour and Interest the publick Justice and Equity of the Nation that the Debt and Damages should be satisfied and repayed There is no Reason of State that particular persons should Purchase a publick Peace at their own Charge or that a private Interest should be Sacrificed for the publick good without satisfaction out of the Publick Purse The Parliament of Paris or Monpilier cannot give Laws to the Parliament of England that enacted if any man should be spoiled by French or others at Sea in peaceable times they shall have the right and benefit of the Law of Marque or Reprizals to recover their Loss Damages and incident Charges which by consent of Nations being once ascertained by a Judicial Act must have its Extent and Execution the end of the Law Satisfaction And this being agreeable to the Laws of God the Laws of Nature the positive Laws of Nations and the Laws and Statutes of England and the King having by His Letters Patents under the Great Seal of England pursuant thereunto commanded and required all Judges of the Admiralty and Officers there
Princes in all parts of the World having once granted such Letters of Reprisals for Spoils and Wrongs done to their Subjects hold themselves obliged to see right done by one means or other being trusted with the power of Peace and War A Prerogative subservient to the immutable Laws of Nature and right Reason Then Carew Equipped out a small Ship called the George Bona Adventura under the command of Captain Compton Gwyther who took a Fly-Boat laden with Wine and Chesnuts near the Isle of Wight called the Love of Rotterdam to awaken those that ought to make reparations whereupon the Dutch Ambassador moved for Proclamations Supersedeas and scire facias but nothing was offered for satisfaction or repairation upon any account whatsoever for the Debt of 151612 l. although no part of that principal money or of ten thousand pounds more expended and disbursed by the said George Carew in the prosecution of his right was recovered or received as by his Affidavit filed in Chancery hereunto annexed also appears Then Compton Gwyther and his Mariners being Apprehended were tryed for Pyracy and Fellony by a special Commission of Oyer and Terminer grounded upon the Statute of Henry the VIII at the New Hall in the Court of Marshalsea in Southwark on the 18th of Febr. 1680. where the Jury acquitted them as not acting with a Fellonious intent under the colour of that Commission for Reprisals Yet the Ship was restored by the King to the Dutch In the Month following Sir Robert Sawyer the Attorney General brought a scire facias in the Pettibag against Sir Edmund Turner and George Carew to shew cause Why the LETTERS PATENTS should not be revoked repeald or made null and void Whereupon Slings by Bethel and Henry Cornish Esquires the Sheriffs gave personal notice and returned the said VVrit in Easter Term 1681. Then Turnor and Carew Appeared and Pleaded the same Term which lay Dormant until Easter-Term 1682. when the Attorney General put in a Demurrer whereunto the Defendants rejoyned and the Record being Read in Court consisting of five large Skins of Parchment on Saturday the 20 of May the Lord High Chancellor of England appointed Tuesday following to Argue the same whereupon the Defendants Councel moved the Court for longer time in regard they could not have Copies of the Record VVritten out so soon yet it was denied and his Lordship gave Judgment for the King without Arguing the same by the Defendants Councel who will in due time be ready to make appear not only divers Errors in the said Scire facias But that Judgment ought not by the Laws of the Land to be given on the said scire facias his Lordships Judgment being reversable by Writ of Error or Appeal But in the Interval between the scire facias brought and the Demurrer put in Carew being pressed to enter other Ships and Pinnaces according to his Covenants to Reprise some part of the Debt and Dammages many Widdows and Orphants Creditors of Courten and Pindar being concerned therein The Ship named the America with 4 others were offer'd at their instance to be entred in the Admiralty and Cap. W. Hawley to be Commander of the America But Sir R. Lloyd Mr. Bedford refusing to take any other Notice of the Paper than only Reading and returning the same it was Registred in the Chancery and a Deputation given to the said Cap. Hawley upon an Authentick Copy of the said Letters Patents to put the same in Execution who in Prosecution thereof took a Fly-boat laden with Wheat and Rye called the Young Schonemaker of Dort under Sayl about three Leagues from the Texell and then brought the same into Woodbridge Harbour and sent the Bills of Lading with all the Papers on Board unto Mr. Thomas Broadrick Procter in the Admiralty in order to a Sentence of Condemnation Then a Warrant dated 29th of April 1682. issued from the Lords Commissioners of the Admiralty directed to Mr. William Ioynes the Marshal who restored the Prize to the Dutch and apprehended Captain Hawley and his Men for Pyracy and Fellony and committed them to the Prison of the Marshalsea in order to their Tryal on Saturday the 10th of Iune 1682. Mr Carew's Affidavit Filed in Chancery Dom. Rex vers Carew al' super Brev. scire facias in suprem ' Curia Cancellar GEorge Carew of Richmond in the County of Surrey Esq one of the Defendants in this Cause maketh Oath That he this Deponent being advised by his Councel Learned in the Laws that a special Proviso was made in the fifteenth Article of the Treaty Concluded at London between the King and the States General Dated the 4th of September 1662. For Satisfaction and Repairation of the Spoyles and Depredations of the Two Ships called The Bona Esperanza and Henry Bona Adventura and the Letters Patents for Reprisals in pursuance thereof Recited in the PLEA to the said scire facias he this Deponent valued himself as vested with such a right and property in the Debt and Damages Ascertained by the Grant in the said Letters Patents That he this Deponent disbursed and expended the sum of Ten Thousand Pounds and Upwards in the Prosecution of his Right Three Thousand and Five Hundred Pounds of the said Money being furnished by Thomas Foley Esq upon the purchase of Aunton Farm in Worcester-shire from this Deponent Two Thousand Pounds more thereof lent to this Deponent by Tho. Colman Esq upon the Mortgage of Eight Houses in the City of London and Two Thousand Five Hundred Pounds by Sir Iames Butler upon a Conditional Surrender of a Coppy-hold Estate in Richmond Whereupon there is a Decree in this Court to foreclose this Deponant from the Equity of Redemption if the Principal Money Interest and Charges be not paid by Christmas next most part of the said 8000 l. being paid to Sir William Powell Sir Iohn Ayton and others claiming their Debts under this Deponants Administration by Judgments and other Securities from Sir Paul Pindar and Sir William Courten And this Deponant farther faith That He this Deponent hath not Directly nor Indirectly received any Satisfaction for the principal Debt of 151612 l. mentioned in the said Letters Patents for the said Spoyles and Depredations save only the Sum of 50 l. Sterling paid by Alderman Backwell by the Earl of Danby's Order out of the 800000 Pattacoons and 150 l. more by the States of Holland towards this Deponents extraordinary Charges in Prison The King having paid the ordinary Costs and Expences of this Deponents Imprisonment with two Servants for the space of 22 Months at the Hague during the last War notwithstanding there is One Hundred Fifty Thousand Pounds Sterling and upwards due to the Creditors of Sir William Courten and Sir Paul Pindar upon Bonds and Judgments wherein many poor Orphants and Widdows are concerned And this Deponent saith That the Record consisting of five Skins of Parchment appointed to be Argued on Fryday 26 of this Instant May.