that no particular Men ow not or are oblig'd for the debt which the Community ows that is if the Community have any Goods but if Mony be lent to a Community each particular is naturally bound as they are a part of the whole if the Stock publique be wanting If one lends my Country Money says Seneca I will not call my self his debtor yet will I pay my share And again Being one of the people I will not pay as for my self but contribute as for my Countrey Naturally nay by the very Roman Law one Village was not bound for the other nor one Mans Possessions charged for another no not so much as with the debts publique the reason being added that it was against reason for one to be charged with the debt of another III. And though by the Law of Nature one Mans Goods are not ty'd for the debts of another no nor for those of the publique yet by the voluntary Law of Nations the same might be introduced and brought in and the same may stand well with the Laws of Nature for that might be introduced by custom and tacit consent when even sureties without any cause may subject and make lyable their Goods and Estates for the debts of a Stranger So likewise that for any debt which any Civil Society or the Head thereof ought to make good or because the Soveraign or a Head hath not done right in anothers debt but hath made himself lyable to render satisfaction such a Society may oblige and make lyable all their Goods corporeal or incorporeal for the reddition of satisfaction Hence it was as the Great Justinian observes that this custom was constituted by the Nations grounded on the urgency of humane needs asserted with the greatest of necessities since without this great licence would be given and tolerated for the committing of depradations and injuries especially if only the Goods of Rulers were made lyable who seldom possess any thing that for satisfaction the injured may easily come by whereas those private Men whose commerce are various may be catcht for recompence sometimes with the greatest of ease and freest from danger Besides the Owners of such prize being members of the same Society might more easily obtain mutual right for satisfaction of the injur'd and their own future indempnity then Forraigners could who without such a tye would be very little regarded IV. The benefit which this custom of obligation hath now introduced is become universal and common to all Nations so that People that are at one time griev'd with this burden at another time might be eased of the same and by such taking the oppressed might the more easily obtain Justice War be prevented The Carthagineans would not suffer Ariston the Tyrian to be taken for said they the same will befall the Carthagineans at Tyre and in other Towns of Trade whereto they resort V. A due administration of Justice is not the least sense wherein Princes are styled Gods To deny or delay Justice is injustice Justice is every Mans right who hath not forfeited what he might claim by the Jus Gentium If therefore the Party cannot obtain his Definitive Sentence or Judgement within a fit time against the Person of whom he complains or if here be a Judgement given against apparent right and Law yet if no relief can be had the Bodies or movables of his Subjects who renders not right may be taken VI. In the prosecution of which there must be 1. The Oath of the Party injur'd or other sufficient proof touching the pretended injury and of the certain loss and dammage thereby sustain'd 2. A proof of the due prosecution for the obtaining a satisfaction in a legal way 3. Protelation or denyal of Justice 4. A Complaint to his own Prince or State 5. Requisition of Justice by him or them made to the Supream Head or State where Justice in the ordinary course was deny'd 6. Presistency still in the denyal of Justice All which being done Letters of Reprisal under such cautions restrictions and limitations as are consonant to Law and as the special case may require may issue not only by the Jus Gentium and Civile but by the antient and Municipal Laws of this Kindom VII The Reprisals grantable by the Laws of England are of two sorts Ordinary and Extraordinary The Ordinary are where any English Merchants or their Goods are spoiled or taken from them in parts beyond the Sea by Merchants Strangers and cannot upon Suit or the Kings demanding of Justice for him obtain the same he shall have upon testimony of such prosecution a Writ out of the Chancery to arrest the Merchants Strangers of that Nation their Goods here in England the which is grantable the Subject opprest of Common Right by the Chancellor or Keeper of England who always in such case hath the approbation of the King or Councel or both for his so doing The Extraordinary are by Letters of Marque for Reparation at Sea or any place out of the Realm grantable by the Secretaries of State with the like approbation of the King or Councel or both VIII And as Princes by the Laws of Nations are responsible for injuries publique so should they by the most prudent ways imaginable prevent those that are private not suffering Forraigners if possible to receive wrongs in their Countries For as the Florentine observes If a Man be exceedingly offended either by the publique or by any other private hand in a Forraign Nation and cannot obtain reparation according to Justice he will never leave blowing the coals or cease promoting the injury till the flame break out in War in which he cares not if he sees the ruin of that Kingdom or State where he receiv'd his wrongs Nor should the Prince or State of the Person injur'd value his misfortune at so low a rate as to deny him Letters of Request for that were to heap up injury upon injury but likewise if Justice be deny'd after such Request to Arm him with power to take satisfaction by Reprise vi manu militari Generally there always preceeds Letters of Request 2 or 3 more or less and according to the satisfaction sufficient or insufficient returned in answer to the same Commissions are awarded IX Subjects cannot by force hinder the Execution even of an unjust Judgement nor lawfully pursue their right by force by reason of the efficacy of the power over them But Forraigners have a right to compel which yet they cannot use lawfully so long as they may obtain satisfaction by Judgement But if that ceases then Reprisal is let in Now Judgement is obtained either in the ordinary course by way of Prosecution or Suit or Appeal from the same after Sentence or Judgement given to a higher Court or else in the Extraordinary way which is by way of Supplication or Petition to the Supream Power but we must understand
the enemy with Goodsprohibited as afore such prises were possessions most noble but the Goods Ships and lives of the innocent peaceable traders to be exposed to rapine and spoil renders them worse then the Roman Lictors by how much 't is to kill without cause Heads Men executing the guilty they the guiltless It was a high necessity that enforced the English to commissionate such the number of her then enemies covering the Sea like the Aegyptian locusts it were well they were rejected by consent or if allow'd off not subject to Quarter when taken by Ships of War A trade that St. Paul never heard of when he said Who goeth to War at his own charge CHAP. IV. Of Pyracy I. Pyrats what II. Of the duty incumbent on Princes and States as in reference to such and whether lyable for the dammages they commit III. Pyrats where they hold a so ciety how the is same esteemed in Law and of equality held by them IV. Where such may obtain the right of legation V. Ships where lyable for the redemption of the Master who remains as a pledge for the freedom of the Ship and lading and where not VI. An oath given for the discharge of a Ship from Pyrats to pay them a summe whether the same ought to be performed VII Forraigners spoiled by English Pyrats may pâ—…rsue for Justice within the Stat. of 28 H. 8. VIII Where the subjects of a Forraign Nation committing Pyracy may be punished for the same and IX Pyracy committed by the subjects of a Nation in enmity with the Crown of England whether the same is Pyracy or otherwise punishable X. Pyracy committed in the British Seas properly punishable by the Crown of England and not otherwise XI Pyracy committed on the Ocean where the Pyrats may be executed by the Laws of Nature XII Pyrats overcome in the attempt where the Captors may execute them without any Tryall or Judgement XIII Pyrats attempting to rob commit a murder whether all are principal or only the slayer and the rest accessories XIV If the subjects of one Forraign Nation rob another and bring the booty into England whether the party injured may proceed Criminaliter for punishment and Civiliter for restitution XV. Pyrat takes only Men and no part of the lading whether the same be Pyracy XVI Where a Master may commit Pyracy of those things that are committed to his charge and where otherwise XVII Where Pyracy may be though there be nothing taken and where Goods are taken out of a Ship and no body in it XVIII The Captain and Crew of a Vessel that have a Commission of reprise commit Pyracy whether he that procured the same and imployed them ought to answer the damage XIX Of Goods taken and retaken by a Friend whether the property of the prise is altered XX. Of Restitution made of Goods taken and retaken from a Pyrat by the Law Maritime XXI Of Restitution frustrated by the Common Law XXII Of Pyracy as in reference to matterscriminal and how punishable this day by the Laws in England XXIII How the Stat. of 28 H. 8. operates as in reference to Pyracies XXIV Whether depradation in Ports within the Realm remains Robbery at the Common Law or Pyracy by the Law Maritime XXV Where benefit of Clergy is allowable to Pyrats and where not and whether by the pardon of all selonies Pyracy is included XXVI Whether attainder for Pyracy works a corruption of Blood and forfieture of Lands XXVII Goods taken at Sea and brought to Land the parties may be indicted upon the Stat. of 28 H. 8. cap. 15. XXVIII Where the Admiralty claiming with an original or a concurrent Jurisdiction the Common Law will not intermeddle XXIX How satisfaction of old was repaired to persons robbed and how the offenders were punished I. A Pyrat is a Sea Thief or Hostis humani generis who for to enrich himself either by surprise or open force sets upon Merchants and others trading by Sea ever spoiling their lading if by any possibility they can get the mastery sometimes bereaving them of their lives and sinking of their Ships the actors wherein Tully calls Enemies to all with whom neither Faith nor Oath is to be kept II. By the Laws of Nature Princes and States are responsible for their neglect if they do not provide Ships of War and other remedies for the restraining of these sort of Robbers but how far they are bound either by the Civil Law or Common Law of this Kingdom may be some question for it is agreed they are not the cause of the unjust spoil that is committed by them nor do they partake in any part of the plunder but if a Prince or State should send forth Ships of War or Commissions for reprise and those instead of taking prises from the Enemy turn Pyrats and spoil the subjects of other Friends there has been some doubt whether they ought not to make satisfaction to the parties injured in case the offenders should prove unable surely there is no more reason for this latter then the first for seeing Princes and States may give all their subjects power to spoil the Enemy nor is such a Permission any cause why dammage was done to our Friends when even private Men without any such Permission might send forth Ships of War besides it is impossible that Princes or States should foresee whether they would prove such or not nor can it be avoided but we must imploy such otherwise no Army or Fleet could be prepared neither are Kings to be accused if their Souldiers or Mariners wrong their Confederates contrary to their commands though they are oblidged to punish and yeild up the offenders and to see that legal reparation be made out of the Estate of the Pyrats If Letters of Marque or Reprizal be granted out to a Merchant and he furnishes out a Ship with a Captain and Mariners and they instead of taking the Goods or Ships of that Nation against whom their Commission is awarded take the Ship and Goods of a Friend this is Pyracy and if the Ships arrive in * England or in any other of His Majesties Dominions the same shall be seized and the owners for ever loose their Vessel From hence it is that Princes and States are very cautious upon this we call Jure Belli privati how they engage themselves or those who seek reparation for wrongs before received for the person injured governs not the action but devolves the power to some other hired for that particular use whose Law is no more then this There is most right where is most pay or prize Unhappy state of Man whose support and living is maintained only by exposing himself to death a Calling that nothing can make it honest but the highest necessity or pious charity And therefore those that issue forth such sort of Commissions generally take caution for their returning within a convenient time and not to wander in that unhappy condition
by purchase by his own Contract that which he cannot retain against the King yet the Law will not enable him by an Act of its own to transfer by hereditary descent the Alien dying his issue a Denizon born the Land will not descend or to take by an Act in Law for the Law Quae nihil facit frustra will not give him an inheritance or free-hold by an Act in Law for he cannot keep it Therefore the Law will not give him 1. By discent 2. By courtesey 3. By Dower 4. By Guardianship And in respect of that incapacity he ressembles a Person Attaint but with this difference The Law looks upon a Person attaint as one that it takes notice of and therefore the eldest Son attainted over-living the Father though he shall not take by descent in respect of his disability yet he shall hinder the descent to the younger But if the eldest Son be an Alien the Law takes no notice of him and therefore as he shall not take by descent so he shall not impede the descent to the yonger Brother As for instance if there be three Brothers the eldest an Alien the other two naturalized and the middle Brother purchase and dyes without issue the younger Brother shall have the Lands III. Concerning the Rules of descents we are not to govern our selves therein by the general notions of love or proximity of nature but by the municipal Ltws of the Countrey wherein the question ariseth for the various Laws of divers Countreys have variously disposed the manner of descents even in the same line and degree of proximity For instance the Father certainly is as near of kin to the Son as the Son is to the Father and is nearer in proximity than a Brother and therefore shall he preferred as next of kin in administration to the Sons Estate According to the Jews for want of issue of the Son the Father succeeds excluding the Brothers and that hath been the use and construction of the Jewish Doctors upon numb 27. 9. but the Mother was wholly excluded 2. According to the provision of the Greeks for the succession or exclusion of the Father is left doubtful 3. By the Roman or Civil Law according to the estimation of the twelve Tables the Father succeeded in the purchase of the Son for want of issue of the Son under the title proximit agnato and so was the use but my Lord Cook supposes the contrary But taking the whole Institution of Justinian the Son dying without issue his Brothers Sisters Father or Mother do succeed him as well to Land as goods in a kind of Copercenary 4. According to the Laws of Normandy which in some things have a cognition with our Law his Brothers are preferred before the Father if the Son dye issueless but his Father before his Uncle 5. According to the Laws of England the Son dying sans issue or Brothers or Sisters the Father cannot succeed but it descends to the Uncle IV. There be two kinds of descents according to the Common Laws of this Realm 1. Lineal from the Father or Grand-father to Son or Grand-son 2. Collateral or transversed as from Brother to Sister Uncle to Nephew and e converso And both these again of two sorts 1. Immediate as in lineals from Father to Son 2. Mediate as in lineals from Grand-father to Grand-child where the Father dying in the life time of the Grand-father is the medium differens of the descent Collateral as in lineal from Uncle to Nephew or e converso And this meditae descent or meditate Ancestor though to many purposes it be immediate for the Father dying in the life of the Grand-father the Son succeeds in point of descent in the Lands immediately to the Grand-father and in a writ of Entry shall be supposed to be in by the Grand-father and not in the post cui This is called a mediate descent because the Father is the medium through whom the Son derives his title to the Grand-father In immediate descents there can be no impediment but what arises in the parties themselves For instance the Father seized of Lands the impediment that hinders the descent must be in the Father or Son as if either of them attaint or an Alien In mediate descents a disability of being an Alien or Attaint in him that is called the medius antecessor will disable a Person to take by descent though he himself have no such disability In lineal descents if the Father be Attaint or an Alien and hath issue a Denizon born and dye in the life time of the Grand-father the Grand-father dyes seized the Son shall not take but the Land shall escheat In Collateral descents A. and B. brothers A. is an Alien or attaint has issue C. a Denizon born B. purchases Lands and dyes without issue C. shall not inherit because A. which was the medius antecessor or medium differens is uncapable V. But in any descents the impediment in an Ancestor that is not medius antecessor from whom and to whom will not impede the discent As for instance the Grand-father and Grand-mother both Aliens or attaint of Treason have issue the Father a Denizon who hath issue the Son a natural born subject the Father purchases Lands and dyes the Son shall be Heir to the Father notwithstanding the disability of the Grand-father and yet all the blood which the Father hath is derived from his disabled Parents for they are not medii antecessores between the Father and the Son but paramont The Law does not hinder but that an Alien is of the same degree and relation of consanguinity as natural born Subjects or Denizons born the Son Father and Brother though Aliens the Son Father and Brother our Law takes notice of as well as natural born Subjects and so it was adjudged for he shall be preferred in Administration though an Alien as next of Kin. But in cases of Inheritance the Law takes no notice of him and therefore as he shall not take by descent so he shall not impede the descent to the younger Brother As for instance A an Alien B. and C. naturalized by Act of Parliament brothers B. purchases Lands and dyes sine prole C. shall inherit and not A. A. an Alien B. and C. his Brothers both naturalized by Act of Parliament B. purchases Lands and dâ—…es wâ—…th out issue the same shall not come to A nor to his issue though a Denizon but shall come to C. and his issue the Law taking no notice of A. as to impede the succession of C. or his issue though it work a consequential disability to bar the issue of A. parallel to what the Law calls corruption of blood which is a consequent of Attainder VI. Again in lineal descents if there be a Grandfather natural born Subject Father an Alien Son natural born subject the Father is made Denizon he shall not inherit the
not Aliens Scotland is a Kingdom by union and therefore those that were born in Scotland under the allegiance of the King as of his Kingdom of Scotland before the Crown came united were Aliens born and such plea against such Persons was a good plea but those that were born since the Crown of England descended to King James are not Aliens for they were born sub side legiantia Domini Regis so those that are born at this day in Uirginia New England Barbadoes Jamaiâ—…a or any other of his Majesties Plantations and Dominions are natural born Subjects and not Aliens so likewise those that are born upon the King of England's Seas are not Aliens X. But if an Alien be made an Abbot Prior Bishop or Dean the plea of an Alien we shall not disable him to to bring any real or mixt action concerning the possessions that he hold in his politique capacity because the same is brought in auter droit The like Law is for an Executor or Administrator because the recovery is to anothers use If an action is brought against an Alien and there is a Verdict and Judgment against him yet he may bring a writ of Error and be plaintif there and that such plea is not good in that case Though an Alien may purchase and take that which he cannot keep nor retain yet the Law hath provided a mean of enquiry before he can be devested of the same for until Office be found the free-hold is in him And this Office which is to gain to the King a Fee or Free-hold must be under the Great Seal of England for a Commission under the Exchequer Seal is not sufficient to entitle the King to the Lands of an Alien born for the Commission is that which gives a title to the King for before that the King hath no title but in cases of Treason there upon Attainder the Lands are in the King without Office and in that case to inform the Court a Commission may go out under the Echequer Seal XI If an Alien and a Subject born purchase Lands to them and to their Heirs they are joint tenants and shall join in Assize and the Survivor shall hold place till Office found By the finding of this Office the party is out of possession if the same be of Houses or Lands or such things as do lye in livery but of Rents Common advowsons and other Inheritances incorporeal which lye in grant the Alien is not out of possession be they appendant or in gross therefore if an Information or an Action be brought for the same the party may traverse the Office in that Court where the Action or Information is brought for the King And if the King obtains not the possession within the year after the Office found he cannot seize without a scire facias It is not for the Honour of the King an Alien purchasing of a Copyhold to seize the same for that the same is a base tenure and so it was adjudged where a Copy-hold was surrendred to J. S. in trust that one Holland an Alien should take the profits thereof to his own use and benefit upon an Inquisition taken it was adjudged the same was void and should be quashed because the King cannot be entitled to the Copyhold Lands of an Alien nor to the use of Copyhold Lands as the principal case was An Alien Infant under the age of 21 years cannot be a Merchant Trader within this Realm nor can he enter any goods in his own name at the Custom-house If an Englishman shall go beyond the Seas and shall there become a sworn Subject to any Forraign Prince or State he shall be look'd upon in the nature of an Alien and shall pay such Impositions as Aliens if he comes and lives in England again he shall be restored to his liberties An Alien is robbed and then he makes his Executor and dyes and afterwards the goods are waift the Lord of the Franchise shall not have them but the Executors Vide Stat. 13. E. 4. All personal actions he may sue as on a Bond so likewise for words for the Common Law according to the Laws of Nations protects Trade and Traffique and not to have the benefit of the Law in such cases is to deny Trade CHAP. III. Of Naturalization and Denization I. Whether the Kings of England can naturalize without Act of Parliament II. What operation Naturalization hath in reference to remove the disability arising from themselves III. What operation naturalization hath as in reference to remove deffects arising from a lineal or collateral Ancestor IV. A Kingdom conquered and united to the Crown of England whether by granting them a power to make Laws can implicitely create in them such a Soveraignty as to impose on the Realm of England V. Of Persons naturalized by a Kingdom dependant whether capable of imposing on one that is absolute VI. Of Kingdoms obtained by conquest how the Empire of the same is acquired and how the Conqueror succeeds VII Ireland what condition it was accounted before the Conquest as in reference to the Natives of the same and whether by making it a Kingdom they can create a Forraigner as a natural born subject of England VIII Of Aliens as in reference to the transmission of their Goods Chattels by the Laws of France IX Of the Priviledges the Kings of England of old claimed in the Estates of Jews dying comorant here and how the same at this day stands X. Of Persons born in places annexed or claimed by the Crown of England how esteemed by the Laws of the same XI Of Denization and what operation it hath according to the Laws of England XII Where an Alien is capable of Dower by the Laws of England and where not and of the total incapacity of a Jew XIII Whether a Denizon is capable of the creation and retention of Honour by the Laws of England I. THe Father and the Mother are the fountain of the blood natural and as it is that that makes their Issue Sons or Daughters so it is that that makes them Brothers and Sisters but it is the civil qualifications of the blood that makes them inheritable one to the other and capable of enjoying the immunities and priviledges of the Kingdom but that is from another fountain viz. The Law of the Land which finding them legitimate doth transplant them into the Civil rights of the Land by an Act called Naturalization which does superinduce and cloath that natural consanguinity with a Civil hereditary quality whereby they are enabled not only to inherit each other but also to enjoy all the immunities and priviledges that meer natural born Subjects may or can challenge II. According to the Laws of Normandy the Prince might naturalize but such naturalization could not divest the descent already vested But according to our Law by no way but by Act of Parliament and that cures the defect as
to vindicate other mens injuries then our own by how much more it is to be feared that a man in his own by too deep a resentment may either exceed a measure or at least infect his mind however his right of punishing an equal remains still in those places where the People remain as in great Families and not in Cities or under some Government and therefore those that have now possessions of any Parts of the New World or American Isles till they have either voluntarily submitted to a Government or put them and their discovery into the hands or protection of some Prince that may exercise power there remains the old and natural right of punishing for offences So likewise where Persons shall be assaulted by Pyrats on the Seas if they be overcome they may be immediatly executed by the Law of Nature for otherwise there would be a Failer of power to punish such Besides the old natural Liberty remains in all Places where are no Judgments so where they are taken and brought to a Port and the Judge openly refuses the Trial of them or that a Trial of them cannot be had without an apparent detriment and loss to the Captors Justice may be done upon them by the Law of Nature VII Two Pyrats resolving to assault and rob the next Vessel they meet with not knowing each others condition or design encounter and the one happens to be overcome by the other the question is now whether the above mentioned right so far remains as that the stronger may execute him that he hath overcome Right reason dictates that the evil doer may be punished not who should punish him but that Nature sufficiently sheweth that it is most convenient to be done by him that is Superior yet doth it not demonstrate this to be necessary except Superior be taken in that sence that the evil doer be thought to have made himself thereby inferior to any other and to have as it were degraded himself from the order of men into the number of Beasts subject to no man and such are Pyrats who have no other denomination but Night-wolves or Beasts of Prey By Nature it is ordained That the better command the worse And Aristotle saith The worse are provided for the use of the better as well in Naturals as in Artificials It follows hence that at least a guilty Person ought not to be punished by another equally guilty to which purpose is that saying of Christ VVhosoever of you is without sin that is such sin let him throw the first stone Pertinent is that saying The Sentence can have no authority where he that judgeth is to be condemned From whence it follows that the right of punishing in such case at such time ceases VIII Kingdoms which are equal in power and having no dependance on each other cannot be commanded nor corrected of another but if there be a question to execute the Decree or Judgment of one in the Territory of the other there may issue forth a Commission of entreaty under the Seal of that Court where the Judgment was given or at least under the great Seal of the Prince directed to the Judges in that place where the the Defendant is resident and the Judge to whom the said Commission is directed may award execution according to the Laws of Nations And so it was adjudged where one having recovered a Debt before the Governour of Freisland Defendant upon that fled for England the Governour at the Request of the Plaintiff issued forth his Commission of Request directed Omnes Magistratus infra Regnum Angliae rogans to make execution of the said Judgment upon which the Judge of the Admiralty in England issued forth an Execution of that Sentence and the Defendant was taken upon which he brought his Habeas Corpus and adjudged the Sentence well executed by the Laws of Nations and according to the Common Law of this Realm So likewise if a Dutch-man takes up Goods at the Port of London and gives a Note under his hand for the payment of the same and then flyes into Holland the Vendor may apply himself to the Lord Major of London and upon proof of the delivery and Sale of the Goods the Lord Major making a Certificat of the same and sending it under the City Seal directed as above they of Holland will and do execute the same upon the Party Herein this last Case differs from the first for by the former if there should fall a question about the interpretation of the Judgment or Sentence the same cannot be done for they are not to examine the same and the reason is least the Stranger be induced at another time to do the like and so dissolve the Judgments whereof they should demand the execution the which would be done more through jealousy of the State then for any injustice in them besides the Judgments or Sentences which are matters of Record and of the greatest security in a Kingdom the presumption that they were justly given shall alwayes be understood IX But in the latter the same may be examined that is the Merchant may be heard as to his legal defence either to the lessening or discharging the debt or dammage but against the testimony certified no objection can be made but the same is admitted as legally proved But if there be a question of honour or life there they may not execute the Judgments of Forraign Judges especially if they have not kown the merit of the causes or seen the Informations or heard the Witnesses but more especially in England for there can in no respect whatsoever the life of a Man let his offence be never so hainous be brought to punishment without a legal Tryall and that by the producing of Witnesses viva voce to his face yet Princes for the respect they bear each other and for the Good of Justice though they cannot at the bear request of the Judges of another Prince put them to death yet they may for exemplary punishments which ought to be made upon the places were the fact was committed yield the natural Subject to his natural Prince unless the Prince to whom the fugitive is fled findes that he is unjustly pursued for in such cases he is not bound to yield them yea he is forbidden by the Law of God to restore a bound-Man which is fled into another Mans house to avoid the fury of his Master X. And as the same is in cases Forraign so likewise in those Estates that are under the Crown of England and therefore if a Man recovers against I. S. in the Kings Bench in England and then the Defendant flies over into Ireland the Judgment may be certified over into the Chancery in Ireland and they may by Mittimus send it into the Kings Bench there and they may award execution or otherwise the party may bring his Action of Debt on the same so the like has been done
his interrest and the retaking afterwards in Battel gained the Captors a property 'T is true the Civilians do hold that it is not every possession that qualifies such a Caption and makes it become the Captors but a firm possession that is when the prize doth pernoctare with the Enemy or remain in his possession by the space of 24 hours but as this is a new Law so it is conceiv'd to be against the antient as well as the modern practice of the Common Law for the Party in the antient Presidents doth not mention by their Plea that the prize did pernoctare with the Enemy and but general that the same was gain'd by Battle of the Enemy But if such a Recaption is by one of the King of Englands Ships of War their Restitution has been made the Party relieved paying his offering to the Admiral commonly called Salvage Mony VIII This right of changing of Dominion or Property by force of Arms is so odious that in the taking of Goods if by any possibility the right owners may have restitution the same hath been done And although a larger time then 24 hours happens between the capture and recapture and so may pernoctare with the Captor yet restitution may be made and therefore if one Enemy takes the Ship and Merchandize of another Enemy and brings her into the Ports or Havens of a Neuter Nation the Owners may seize her and the Admiral of that Neuter Nation may in some cases restore the Ship and Goods to their Owners and the Persons captive to their former liberty the reason is for that the same ought to have been brought infra Praesidia of that Prince or State by whose Subject she was taken A Dunkirker having seiz'd a Frenchmans Vessel super altum Mare sold the same with her lading at Weymouth whether it had been driven before she was brought infra Praesid Dom. Reg. Hispaniae the Frenchman coming into Port then claims the benefit of the Laws of Nations the King of England being then in amity with both their Princes and that restitution be made in which case it was resolved by all the Judges that if there be a Caption by Letters of Marque or by Piracy and the Vessel and Goods are not brought infra Praesidia of that Prince or State by whose Subject the same was taken the same will not divest the Property out of the Owner with this agrees the Law Civil and restitution may be made IX But if the Ships of War of Nations in enmity meet at Sea and there be a caption if there be that which is called a firm possession the Neuter Nation cannot re-deliver or make restitution of the thing so acquired and so it was adjudged where Samuel Pellagy with a Ship of War of the Emperor of Morocco took a Spanish Ship and brought the same into England that he could no ways be question'd for the same criminaliter or restitution to be made civiliter for that the King of Spain and the Morocco Emperor were enemies and the King of England in amity with both and that such a caption is not called Spoliatio sed Legalis captio in which there can be no restitution made upon neither of the Stat. of 31. H. 6. cap. 4. or 27. Ed. 3. cap. 13. for he that will sue to have restitution in England for Goods taken at Sea must prove that the Soveraign of the party was in amity with the King of England Secondly that he that took the Goods his Prince was at the time of the taking in amity with the Soveraign of him whose Goods were taken for if he which took them was in enmity with the Soveraign of him whose Goods were taken then the same will not amount unto a depredation or robbery but a lawful taking as every enemy might take of another A Spanish Merchant before the King and his Councel in Camera Scaccarii brought a Bill against divers English-Men wherein setting forth quod depradatus spoliatus fuit upon the Sea juxta partes Britannia per quendam Virum Bellicosum de Britannia de quadam Navi and of divers Merchandises therein which were brought into England and came into the hands of divers Engish-Men naming them and so pray'd process against them who came in and pleaded that in regard this depredation was done by a Stranger and not by the Subjects of the King of England they ought not to answer It was there resolv'd Quod quisquis extraneus who brings his Bill upon this Statute to have restitution debet probare quod tempore captionis fuit de amicitia Domini Regis and also quod ipse qui eum receperit spoliavit fuit etiam sub obedientia Regis vel de amicitia Domini Regis sive Principis quaerentis quia si fuerit inimicus sic ceperit bona tunc non fuit spoliatio nec depredatio sed legalis captio prout quilibet inimicus capit super unum alterum But if the King of England is in enemity with the States of Holland and one of their Ships of War takes a Merchant-Man of the King of Englands and afterwards another Ship of War of England meets the Dutch-Man and his prize and in aperto praelio regaines the prize there restitution is commonly made the Owners paying their Salvage so where the prize is recover'd by a Friend in amity or comes into his Ports restitution is likewise made but when such Goods become a lawful and just prize to the Captor then should the Admiral have a tenth part following the religious example of Abraham after his Victory over the five Kings X. He that is an Enemy may every where be assaulted according to the Laws of Nations Enemies may therefore be attaqu'd or slain on our own ground on our Enemies or on the Sea but to assault kill or spoil him in a Haven or Peaceable Port is not lawful but that proceeds not from their Persons but from his right that hath Empire there for Civil Societies have provided that no force be used in their Countreys against Men but that of Law and where that is open the right of hurting ceaseth the Carthaginean Fleet was at Anchor in Syphax Port who at that time was at peace with the Romans and Carthagineans Scipio unawars fell into the same Haven the Carthaginean Fleet being the stronger might easily have destroy'd the Romans but yet they durst not fight them the like did the Venetian who hindred the Greeks from assaulting the Turkish Fleet who ride at Anchor in a Haven then under the Government of that Republique so when the Venetian and Turkish Fleet met at Tunis though that very Port ackowledges the Ottoman Emperor but in regard they are in the nature of a Free Port to themselves and those that come there they would provide for the Peace of the same and interdicted any hostile attempt to be there made But they of Hamborough were
and in the attempt the Pyrats shall be overcome if the Captors bring them to the next Port and the Judge openly rejects the Tryal or the Captors cannot wait for the Judge without certain peril and losse Justice may be done upon them by the Law of Nature and the same may be there executed by the Captors Cajus Caesar being but a Private Man pursued the Pyrats by whom he formerly had been taken and spoiled by them and making up to them with such a Fleet as he possible in haste could get ready attaqued burnt and destroyed their Ships and the Men he brought back to an Anchor where repairing to the Proconsul to do Justice who neglecting himself returned back and there hang'd them up XIII If a Pyrat at Sea assault a Ship but by force is prevented entering her and in the attempt the Pyrat happens to slay a Person in the other Ship they are all principalls in such a murder if the Common Law hath Jurisdiction of the cause but by the Law Maritime if the Parties are known they who gave the wound only shall be principalls and the rest accessories and where they have cognizance of the principal the Courts at Common Law will send them their accessory if he comes before them XIV If a Spaniard robs a French Man on the High Sea both their Princes being then in Amity and they likewise with the King of England and the Ship is brought into the Ports of the King of England the French Man may proceed criminaliter against the Spaniard to punish him and civiliter to have Restitution of his Vessel but if the Vessel is carryed intra Praesidia of that Prince by whose Subject the same was taken there can be no proceeding civiliter and doubted if criminaliter but the French Man must resort into the Captor or Pyrats own Country or where he carried the Ships and there proceed A Dutch Man but Naturalized by the Duke of Savoy and living at Villa Franca in his Dominions procures a Commission from the States of Holland and coming to Leighorn there rid with the Colours and Ensigns of the Duke of Savoy the Ship Dyamond being then in Port and having received her lading was afterwards in her Voyage home surprised by that Caper and brought into Villa Franca and there condemned and sold to one Poleman which Ship afterwards coming for England the Plaintiffs having notice made a seizure and upon Tryal Adjudication passed for the Plaintiffs the original proprietors for though the Ship of War and the Captors were of Savoy and carryed thither yet being taken by virtue of a Dutch Comission by the Law Maritime she must be carryed infra Praesidia of that Prince or State by virtue of whose Commission she was taken Nor can such carrying of the Ensignes or Coulors of the Duke of Savoy who was then in amity with the Crown of England or the Commander though a Subject of that Prince make him a Pyrat or subject them or those to whom they have transferred their interest of the Prize any waies to be questioned for the same criminaliter for that the original quoad as to the taking was lawful as one enemy might take from another but civiliter the same for that the Captor had not entitled himself to a firme possession And therfore in all cases where a Ship is by Letters of Marque or Pyracy if the same is not carry'd infra praesidia of that Prince or State by whose Subject the same was taken the Owners are not divested of their property but may re-seize wheresoever they meet with their Vessels XV. If a Pyrat attaques a Ship and only takes away some of the Men in order to the selling them for slaves this is a Pyracy by the Law Maritime but if a Man takes away a Villaine or Warde or any other Subject and sells them for slaves yet this no robbery by the Common Law XVI If a Bale or Pack of Merchandise be delivered to a Master to carry over Sea to such a Port and he goeth away with the whole Pack or Bale to another Port and there sells and disposes of the same the same is no felony But if he opens the Bale or Pack and take any thing out animo furandi the same may amount to such a Larceny as he may be indicted in the Admiralty though it amounts not to a Pyracy Yet if such a Master of Ship shall carry the lading to the Port appointed and after retakes the whole Pack or Bale back again this may amount to a Pyracy for he being in the nature of a Common Carrier the delivery had taken its effect and the privity of the Balement is determined XVII If a Pyrat shall attaque a Ship and the Master for the redemption shall give his Oath to pay a sum certaine though there be no taking yet is the same Pyracy by the Law Maritime If a Ship shall ride at Anchor and the Mariners shall be part in their Ship-Boat and the rest on the shore and none shall be in the Ship yet if a Pyrat shall attaque her and rob her the same is Pyracy XVIII A Merchant procures Letters of Marque or Reprise and then delivers the Commission to Persons to endeavour a satisfaction if such Persons commit Pyracy the Vessel is forfeited without controversy but the Merchant is no waies lyable to make satisfaction for though the Superior shall answer for the actions of his Ministers or Servants yet that is introduced by the Civil Law but this question must be decided by the Laws of Nations by virtue of which such Commissions are awarded or granted the which does exempt any Man to answer for the dammages of his Servants unless he fore-knew that they would commit such a Pyracy or spoliation or any way have abetted or consented to the same which right may be forfeited and the Civil Law let in to acquire satisfaction But if a Ship shall be at Sea and in necessity if she attaques another Ship and takes out some Victuals Cables Ropes Anchors or Sailes especially if that other Ship may spare them this is not Pyracy but then the party must pay ready Money for such things or give a Note or Bill for the payment of the value if on this side the Straites of Morocco within four months if beyond within twelve months XIX By the Law Maritime if Goods are taken by a Pyrat and afterwards the Pyrat attaques another Ship but in the attempt is conquered the Prise becomes absolute the Captor's saving the account to be rendred to the Admiral And it is accounted in Law a just caption of whatsoever may be got or taken from such Beasts of prey be the same in their own or in their Successors possession But then an account ought to be rendred to the Admiral who may if they happen to be the Goods of
the Fellow Subject of the Captors or of Nations in Amity with his own Soveraign make restitution to the Owner the costs and charges and what other things in equity shall be decreed to the Captor first considered and deducted XX. By the Status of 27 Edw. 3. cap. 13. if a Merchant loose his Goods at Sea by Pyracy or Tempest not being wrackt and they afterwards come to Land if he can make proof they are his Goods they shall be restored to him in places Guildable by the King's Officers ' and six Men of the Country and in other places by the Lords there and their Officers and six Men of the Country This Law hath a very near relation to that of the Romans called De Usu-Captione or the Atinian Law for Atinius enacted that the Plea of Prescription or long possession should not avail in things that had been stoln but the interest which the right Owners had should remain perpetual the words of the Law are these Quod surreptum est ejus rei aeternitas auctoritas esset where by Auctoritas is meant Jus Dominii XXI Yet by the Common Law of England it has been held that if a Man commit Pyracy upon the Subjects of another Prince or Republique though in League with us and brings the Goods into England and sells them in a Market Overt the same shall bind and the Owners are for ever concluded and if they should go about in the Admiralty to question the property in order to restitution they will be prohibited XXII This offence was not punishable by the Common Law as appears by the preamble of the Stat. of 28. H. 8 cap. 15. but the same was determined and judged by the Admiral after the course of the Civil Law but by force of the said Act the same is enquired of heard and determined according to the course of the Common Law as if the offence had been committed on Land XXIII This Act does not alter the offence or make the offence Felony but leaves the offence as it was before this Act viz. Felony only by the Civil Law but giveth a mean of Tryall by the Common Law and inflecteth paines of death as if they had been attainted of any felony done upon the Land The Indictment must mention the same to be done upon the Sea A Pardon of all Felonies does not extend to this offence but the same ought especially to be named Though there be a forfeiture of Lands and Goods yet there is no corruption of Blood There can be no Accessory of this offence tryed by virtue of this Statute but if there be an Accessory upon the Sea to a Pyracy he must be tryed by the Civil Law The Statute of 35 H. 8. cap. 2. taketh not away this Statute for Treasons done upon the Sea Clergy is not allowable to the party on the Statute 28 H. 8. vide 14. Jac. in B. R. Moore 756. placet 1044. Though a Port is Locus publicus uti pars Oceani yet it hath been resolved more then once that all Ports not only the Town but the Water is infra corpus Comitatus If a Pyrat enters into a Port or Haven of this Kingdom and a Merchant being at Anchor there the Pyrat assaults him and robs him this is not Pyracy because the same is not done super eltum Mare but this is a down-right robbery at the Common Law for that the Act is infra corpus Comitatus and was inquirable and punishable by the Common Law before the Statute of 28 H. 6. cap. 15. XXV So If such a Pyracy be made in a Creek or Port in such cases it has been conceived that Clergy is allowable upon the Stat. of 28 H. 8. but if it be done super altum Mare there no Clergy is allowable by the Pardon of all Felonies at the Common Law or by the Statute Law Felony super altum Mare is not pardoned for though the King may pardon this offence yet being no Felony in the eye of the Law of this Realm but only by the Civil Law the Pardon of all Felonies generally extends not to it for this is a special offence and ought especially to be mentioned XXVI A Man attainted by virtue of that Statute forfeits his Lands and Goods yet there works no corruption of Blood by virtue of that attainder nor can there be any Accessory of Pyracy by the Law of this Realm but if it falls out that there is an Accessory upon the Sea such Accessory may be punished by the Civil Law before the Lord Admiral but he cannot be punished by virtue of this Act because it extends not to Accessories nor makes the offence felony XXVII If one steals Goods in one County and brings them into another the Party may be indicted in either County but if one commits Pyracy at Sea and brings the Goods into a County in England yet he cannot be indicted upon that Statute for that the originall taking was not felony whereof the Common Law took conuzance XXVIII If a Man is taken on suspition of Pyracy and a Bill is preferred against him and the Jury find Ignoramus if the Court of Admiralty will not discharge him the Court of Kings Bench will grant a Habeas Corpus and if there be good cause discharge him or at least take Bayle for him But if the Court suspects that the Party is guilty perhaps they may remand him and therefore in all cases where the Admiralty legally have an original or a concurrent Jurisdiction the Courts above will be well informed before they will mdedle If a Man be in custody for Pyracy if any aids or assists him in his escape though that matter is an offence at Land yet the Admiralty having Jurisdiction to punish the principal may have likewise power to punish such an offender who is lookt upon quasi an Accessory to the Pyracy but to rescue a Prisonner from an Officer of theirs they may examine the cause but they cannot proceed criminally against the offender XXIX Antiently when any Merchants were robbed at Sea or spoiled of their Goods the King usually issued out Commissions under the Great-Seal of England to enenquire of such depradations and robberies and to punish the Parties and for fraudes in Contracts to give dammages to the Parties and proceed therein secundum Legem consuetudinem Angliae secundum Legem Mercatoriam Legem Maritimam all three Laws included in the Commissions One Marsh a Fisherman being at Sea was taken by Pyrats and all which he had after that the Pyrats took another Ship belonging to the Dane and the Pyrats having rifled the Ship and taken the best of the Goods of the Danes the Pyrat put aboard the Fisherman and so suffered him to depart who landing here went immediately to Dr. Talbot a Civilian and shewed him all this matter and desiring his advice who directed an Inventory to be
paction or partnership without sundering but yet if they will sunder the Law Maritime requires some considerations to be performed before they can so do And therefore if the Ship be newly built and never yet made a Voyage or is newly bought she ought to be subject to one Voyage upon the common outread and hazard before any of the Owners shall be heard to sunder and discharge their parts If it falls out that one is so obstinate that his consent cannot be had yet the Law will enforce him either to hold or to sell his proportion but if he will set no price the rest may outrigg her at their own costs and charges and whatsoever Freight she earns he is not to have any share or benefit in the same But if such Vessel happens to miscarry or be cast away the rest must answer him his part or proportion in the Vessel But if it should fall out that the major part of the Owners refuse to set out the Vessel to Sea there by reason of the unequality they may not be compelled but then such Vessel is to be valued and sold The like where part of the Owners become deficient or unable to set her forth to Sea IV. The Master of the Vessel is elegable by the part-Owners not by the majority yet he that is most able is to be preferred The wisdome of the later Ages have been such that few have gone out in that condition but those as have commonly had shares or parts in the same Vessel In the preferring therefore of a Master his Ability and Honesty is to be considered since on him rests the charge not onely of the Vessel but of the Lading their very Actions subiecting the Owners to answer for all damage that shall be sustained by him or his Marriners be it in Port or at Sea to the Lading or Goods of the Merchants or Laders and they are made lyable as well by the Common Lawes of England as the Law Maritime V. If the Master commits offences either negligently or wilfully he shall be responsible over to his Owners for the repairation of damage nor are they bound to joyn but may sever and sue apart as well by the Common Law as the Maritime So likewise if the Ship hath earned Freight and part of them receive their parts the rest may bring their Action for their share without joyning with the other VI. If a Ship be borke up or taken in pieces with an intent to convert the same to other uses if afterwards upon advice or change of mind she be rebuilt with the same Materialls yet this is now another and not the same Ship especially if the Keel be ript up or changed and the whole Ship be once all taken a sunder and rebuilt there determines the Partnership quoad as to the Ship But if a Ship be ript up in parts and taken a sunder in parts and repaired in parts yet she remains still the same Vessel and not another nay though she hath been so often repaired that there remains not one stick of the Original Fabrick VII If a man shall repair his Ship with Plank or other Materialls belonging to another yet the Ship maintaines and keeps her first Owners But if a man shall take Plank and Materialls belonging to another and prepared for the use of Shipping and with them build a Ship the property of the Vessel followes the Owners of the Materialls and not the builder But if a man cuts down the trees of another or takes Timber or Planks prepared for the erecting or repairing of a dwelling house nay though some of them are for Shipping and builds a Ship the property follows not the Owners but the Builders VIII If a Ship be sold together with her tackle furniture apparel and all other her instruments thereunto belonging yet by those words the Ships boat is not conveyed but that remains still in the Owners so it is if the Ship be freighted out and afterwards at Sea she commits Piracy the Ship is forfeited but the Boat remaines still to the Owners IX If a Ship commits Piracy by reason of which she becomes forfeited if before seizure she be Bona-fide sold the property shall not be questioned nor the Owners divested of the same X. If a Master shall take up Monys to mend or Victual his Ship where there is no occasion though generally the Owners shall answer the fact of the Master yet here they shall not but onely the Master But if there were cause of mending the Ship though the Master spend the Mony another way yet the Owner and Ship become lyable to the satisfaction of the Creditor for it were very unreasonable that the Creditor should be bound to take upon him the care of the repairing the Ship and supply the Owners roome which must be so if it should be necessary for him to prove that the money was laid out upon the Ship so on the other hand it stands with reason that he be sure that he lends his money on such an occasion as whereby the Masters fact may oblige the Owners which he can not do otherwise unless he knows that the money borrowed was necessary for the repair of the Ship and therefore if the Ship wanted some repairs and a far greater and Extravagant sum was lent then was needful the Owners shall not be lyable for the whole II. If a man gets possession of a Ship having no Title to the same by the Law Maritime he shall answer such damage as the Ship in all probability might have earned and the reason of that is because the onely end of Shipping is the imployment thereof XII A Ship is Freighted out accordingly she receives in her lading pursuant to agreement afterwards an Embargo happens and the lading is taken as forfeited yet the Owners shall notwithstanding receive Freight for here is no fault in them but only in the Merchant Thus men from their Necessity and Safety having from hollow Trees nay Reeds Twiggs and Leather for such were the rude beginnings of those stupendious things we now admire advanced the Art to that degree as to render it now the most usefullest thing extant and as the Mathematiques Astronomy and other Sciences hath added to its security so hath succeeding Ages from time to time provided Priviledges and Laws by which it hath alwayes been regulated and governed the which upon all occasions and in all Courts hath generally had a genuine construction as near as might be to the Marine Customes and therefore at this day if a Ship be taken away or the Owners dispossest they may maintain an Action of Trover and Conversion for 8th or 16th part of the same as well by the Common Laws of this Kingdome as the Law Maritime CHAP. II. Masters of Ships their Actions considered in reference to cases private and publique I. A Master or Skipper
them forth-comeing The Master is not there held responsible in case of a loss especially if there be any thing of an agreement thereunto XIX But if Goods shall be sent aboard a Ship and the Master shall appoint a Cabin for the same and deliver the Key to the Lader and tell him he will not be responsible if a loss happens yet if the Goods are stole he must notwithstanding make satisfaction By the Common Law it shall bind an Inn-keeper Note That Goods once delivered to a Master the Cargo is not subject to be attached in his hands nor can any Custome whatsoever support the same for they are in Law as it were bayled to the Ship untill the Freight and all other charges are paid * and very much doubted whether an Attachment can be made in London of any Goods at all lying a Shipboard in the Rives of Thames which though the Port of London notwithstanding Freight and all other charges are paid off CHAP. IV. Of Freight Charter-parties and Demorage I. The various wayes that Ships may be Freighted at this day II. The ancient way of Freighting III. How the same is governed upon the various Contracts and of Accidents happening to Masters or Laders preventing the Voyage IV. Of Ships laded and unladed before the Voyage begun Their becoming disabled viz. perish in the Voyage before the same is compleated V. Of Ships departure considered as in reference to Freight and Damage VI. Of Freight arising on Trading Voyages and lost by contingent actions considered by the Common Law and the Law Maritime VII Of Freight becoming due upon the various wayes of Contract or general where none was agreed for VIII Of Faults arising from the Freighters and of the decease of the Ship as in reference to Freight IX Of Faults of Masters arising from taking in Goods more than were contracted for And of being forc'd into Ports in his passage X. Passengers dying the Shipâ—… title to their Goods and Concerns XI The Ship in construction of Law how far lyable to Freight XII Ships taken and retaken in Warr whether the same destroyes the Contract XIII Goods become lost without fault of the Ship whether Freight becomes due XIV Of Freight contracted with persons deficient XV. Of Ships contracted for by the mouth to be paid at the arrival at a Port Ship is cast away the Goods saved whether the Freight ought to he paid I. IN the Freighting of Ships respect is alwayes had to the Ship it self or else to a certain part thereof Again The Merchants either Freight her by the Month or the Entire Voyage or by the Tun for it is one thing to Freight a Ship and another thing to take certain Tunnage to Freight So also it is one thing to be a Cape-Merchant another to be an under Freighter II. There was of old another way of Freighting which was when the Merchant agreed with the Master for a Sum certain to convoy the Goods ensur'd against all peril such were to be responsible if any detriment or loss happened but that is now become obsolete III. Freight is governed generally by the contract and varies according to the agreement reduced generally into a Writing commonly called a Charter-party executed between the Owners and Merchant or the Master in the behalf of himself and Owners or himself and the Merchant or between them all The Master or Owners generally Covenant to provide a Pylott and all other Officers and Marriners and all other things necessary for the Voyage and for the taking in and delivering out of the Lading If there be an agreement and earnest but no writing if the same be broke off by the Merchant he loseth his earnest but if the Owners or Master repent they lose double the earnest But by the Common Law of England the party damnified may bring his Action of the Case and recover his damages on the agreement If a time is appointed by the Charterparty and either the Ship is not ready to take in or the Merchant not ready to lade aboard the parties are at liberty and the party damnified hath his remedy against the other by Action to recompence the detriment If part of the Lading be a Shipboard and it happens some misfortune may overtake the Merchant that he hath not his full Lading aboard at the time the Master is at liberty to contract with another and shall have Freight by way of damage for the time that those Goods were aboard after the time limited for such agreements are of a Conditional nature precedent a failer as to a compleat Lading will determine the same unless afterwards affirm'd by consent And though it be no prudence for every Merchant or every Master to depart from the Contract if it should so fall out that the Agreement as to the Lading is not performed according to the Charter-party or Agreement seldome ever done if any part be aboard yet it is the highest Justice that Ships and Masters should not be infettered but free for otherwise by the bare lading of a Cask or Bale they might be defeated of the opportunity of Passage or Season of the year So on the other hand if the Vessel is not ready the Merchant may ship aboard in another Vessel the remainder of his Goods and discharge the first Skipper and recover damages against the Master or Owners for the rest And this is grounded upon the like reason as the former And therefore by the Law Maritime chance or some other notorious necessity will excuse the Master but then he loseth his Freight till such time as he breaks ground And till then he sustains the loss of the Ship But if the fault be in the Merchant he then must answer the Master and the Ships damage or else be lyable to entertain the Ships Crew ten dayes at his own Charge but after that then the full Freight and if any damage happens afterwards the Merchant must run the risque of that and not the Master or Owners But by the Common Law so long as the master hath the Goods a shipboard he must see them forth-coming IV. If Goods are fully laded aboard and the Ship hath broke ground the Merchant on consideration afterwards resolves not on the adventure but will unlade again by the Law Maritime the Freight seems deserved But if the Ship in her Voyage becomes unable without the Masters fault or that the Master or Ship be Arrested by some Prince or State in her Voyage the Master may either mend his Ship or Freight another But if the Merchant will not agree to the same then the Freight becomes due for so much as the Ship hath earned For otherwise the Master is lyable for all damage that shall happen And therefore if that Ship to which the Goods were transladed perish the Master shall answer but if both the Ships perish then is he discharged But if there be extream
incorporated and indeed was no more but upon payment of Moneys here in England to be repaid the just value in money in another Countrey according to the price agreed upon between the Officer and deliverer to allow or pay for the exchange of the money and the loss of time VI. Cambio sicco or dry Exchange is when a Merchant hath occasion for 500 l. for a certain time and would willingly pay interest for the same the Banker being desirous to take more than the Statute gives and yet would avoid the same offers the 500 l. by Exchange for Cales whereunto the Merchant agrees but the Merchant having no correspondence there the Banker desires him to draw his Bill to be paid at double or treble usance at Cales by Robin Hood or John-a-Noakes any seign'd person at the price the Exchange is then curant accordingly the Merchant makes the Bill and then the Banker payes the moneys which Bill the Banker remits to some Friend of his to get a Protest from Cales for non-payment with their Exchange of the money from Cales to London all which with costs the Merchant is to repay to the Banker sometimes they are so conscientious as not to make above 30 per Cent. VII Cambio fictitio when a Merchant hath occasion for Goods to Freight out his Ship but cannot well spare money The Owner of the Goods tells him he must have ready money the buyer knowing his drift it is agreed that the seller shall take up the moneys by Exchange for Venice or any other parts but then the Merchant must pay for Exchange and re-exchange So likewise where the Merchant is become indebted to the Banker they are contented to stay the Merchant paying Exchange and re-exchange the which he will most certainly compel him to do These two last wayes of grinding the face of the generous Merchant was afterwards prohibited but notwithstanding it was found impossible to moderate the inequality of Exchanges and to have value for value so that at this day it seems to be a Cold that many an honest man is apt to catch VIII The just and true Exchange for Moneys that is at this day used in England by Bills is par pro pari according to value for value so as the English Exchange being grounded on the weight and fineness of our own Moneys and the weight and fineness of the Moneys of each other Countrey according to their several Standards proportionable in their valuation which being truly and justly made ascertains and reduces the price of Exchange to a sum certain for the Exchange of Moneys to any Nation or Countrey whatsoever As for instance If one receives 100 l. in London to pay 100 l. in Exeter this by the Par. But if a Merchant receives 100 l. in London to pay 100 l. at Paris there the party is to examine and compare the English weight with the weight of France the fineness of the English Sterling Standard with the fineness of the French Standard if that at Paris and that at London differ not in proportion then the Exchange may run at one price taking the denomination according to the valuation of the Moneys of each Countrey but if they differ the price accordingly rises or falls and the same is easily known by knowing and examining the real fineness of a French 5 s. piece and an English 5 s. piece and the difference which is to be allowed for the want of fineness or weight which is the Exchange and so proportionably for any Sums or Moneys of any other Countrey the which is called Par or giving value for value But this Course of Exchange is of later years abused and now Moneys are made a meer Merchandize and does over-rule Commodities and Moneys rise and fall in price according to the plenty and scarcity of money IX As Money is the common measure of things between man and man within the Realm so is Exchange between Merchant and Merchant within and without the Realm The which is properly made by Bills when Money is delivered simply here in England and Bills received for the repayment of the same in some other Country either within the Realm or without the Realm at a price certain and agreed upon between the Merchant and the Deliverer For there is not at this day any peculiar or proper Money to be found in Specie whereupon Outland Exchanges can be grounded therefore all Forraign Coyns are called imaginary At London all Exchanges are made upon the pound sterling of 20 s. and 12 d. to the shilling for Germany Low-Countries and other places of Traffique and for France upon the French Crown for Italy Spain and some other places upon the Ducat For Florence Venice and other places in the Streights commonly by the Dollar and Florin X. Bills drawn to be paid are either at sight or a time certain single double or treble usance and are commonly about 3. for fear of any miscarriage The taking and delivering money at sight binds the taker up to give his Bill to pay at sight or within some short time the like sum after such a rate the Pound Dollar Ducat or Crown as is agreed between them in Forraign Coyn either according to the valuation of Moneys or currant Moneys for Merchandize XI The second time of payment is called Usance it is known or taken to be the compass of one month to be computed from the date of the Bill and that governed according to the custome of the place where those Exchanges do run XII The third is double or treble Usance 2. or 3. months sometimes there are Exchanges made upon half Usance The times of payment do alter the price of Exchanges according to time commonly after 12 15 or 20 in the Hundred by the year Usance from London to Middleborough are generally accounted one months time from the date of the Bill Amsterdam Antwerpe Bridges Rotterdam Lisle Roane Paris The Bills may have a larger sometime a shorter time there is no direct certainty but onely that single Usance is a month double Usance 2. months c. Usance from Amsterdam to Rome Are generally accounted 2 months from the date c. Genoa Venice Naples Palermo Luca Sevill Lisbon From London to Florence is sometime accounted treble Usance from the date of the Bill Venice Leighorne Zant Aleppo Luca. XIII Excambium vel Cambium or as the Civilians term permutatio Billa Excambij signifieth no more but a customary Bill solempnized by a numerous consent of Traders to have a respect more then other Bills though of as high and as intrinsical a value And those that give such Bills were called Exchangers or Bankers Though the Act was no more but to keep up the life of Commerce without which it is impossible for any Nation to flourish yet could not any person draw such Bills or return Money beyond Seas without Licence first obtained of the King But at this day any man may do it without being
an Action as a Feme sole 4. He shall forfeit those Lands which he shall purchase in the Realm during his Banishment for he during his Banishment is as much disabled to purchase as an Alien for fit alienigena by his Banishment and he is observed to be in a worse Condition than an Alien for he is marked with Indignatio principis 'T is true he cannot forfeit neither Title of Honour nor Knighthood nor the Lands he had before Exile unless there be special Sentence or Judgment as that of the Spencers If the Father be in Exile this hinders not the Freedom of the Son for the same is not a thing descendable for should it be so then the Banishmens of the Father would make a Forfeiture of the Freedom but the Son has this Freedom by his own Birth as a Purchase and not by the death of his Father by descent Like the Case where J. S. hath many Children and then he confesseth himself a Villain to J. D. in Court of Record yet his Children formerly Born are Free-men and no Villains the Reason is because they were Free by their own Births but the Inheritance is Inthralled because it is to come to the Heir by descent XI A Free-man of a City or Burrough may be made divers ways as my Lord Cooke observes 1. By Service 2. By Birth by being the Son of a Free-man 3. By Purchase or Redemption At Bristol by Marriage Sir John Davies in his Irish Reports observes the same for Law St. Paul was born at Tarsus in Cicilia which was under the obedience of the Romans by vertue of which he challenged the priviledge of a Roman Citizen but it was accounted no more than a National Freedom like that of Calvin who claimed the general Freedom of an English-man being born in Scotland but under the obedience of the King of England but that Challenge made not St. Paul Free of the Private Customs Priviledges and Franchises of Rome no more than Calvins Birth made him a Free Citizen of London to the particular Customs of that City The King by his Letters Patents cannot make one a Free-man of London yet he may thereby make him a Free-man of his Kingdom If one be Born in a City of Parents that are not Free the Child hereby is no Citizen by Birth and if one be born of Free Parents out of the place of Priviledges as London c. he yet is a Free-man by Birth yet in the Charter Granted to Yarmouth the words were concessimus Burgensibus de magna Yarmutha de Villa praedict ' Oriundis that they should have such and such Liberties So that Special words may alter the Case London had many Royal Franchises granted them from time to time and were often by former Kings successively confirmed nor wanted they a share when the great Charter was granted to have their ancient liberties secured nor were the succeeding Princes slack in their Royal grants and confirmations but especially Richard the Second who in Parliament granted and confirmed to them all their ancient customes and liberties with this clause Licet usi non fuerint vel abusi fuerint and notwithstanding any Statute to the contrary amongst the number of their many Priviledges the freedom of the same was accounted of no small importance since in divers Parliaments it was very much aimed at and endeavoured to be impaired but at last they obtained a most gracious and Royal Confirmation in Parliament of their ancient liberties amongst which it is declared that no Merchant being a Stranger to the Liberty of the said City should sell any Commodities within the Liberty of the said City to other Merchant-Strangers nor that such Merchant-Stranger should buy of anyother Merchant-Stranger such Merchandize within the Liberty of the said City without forfeiture thereof saving that any Person Lord Knight c. may buy within the Liberties of any Merchant-Stranger Merchandizes in gross for their own use so that they do not sell them again to any other And as this City by Custom may pre-clude any Person not being free of the same to sell in such manner upon such pain so any other City which are Burroughs or Cities by prescription within this Realm may have the like Custom and the goods sould or bought by such may be subjected to forfeiture but the same cannot be good by Charter or Grant A compleat Free-man is such a one as hath challenged his freedom and taken the Free-mans Oath and is admitted into the Society and Fellowship of the Free-men Citizens and Burgesses otherwise he hath but a bare right to his freedom CHAP. II. Of Aliens as in relation to their Estates real and personal I. Of an Alien his ability and disability in the taking and enjoying of Estates real and personal II. Of his capacity in purchasing and disability to transfer by an hereditary descent III. Of the rules of descents according to the Laws of several Countreys IV. Of descents according to the rules of the Common Law of England lineal and collateral V. Of Impediments in one that is not the medius antecessor VI. Of Impediments in one that is the medius antecessor lineal and collateral VII Of the Statute of Natis ultra Mare and of issues born beyond the Seas VIII The Lord Cokes opinion that if an Allien has issue two Sons Denizons the one purchases Lands and dyes the other cannot inherit them debated and refuted IX Of Foreign births which do not create a disability X. Of Aliens not disabled by Law to bring either real or personal actions XI Of Office that must entitle the King to an Aliens Estate XII Of some particular immunities and other matters relating to an Alien AN Alien is one born in a strange Countrey under the obedience of a strange Prince and State and out of the legeance of the King of England and can have no real or personal action for or concerning Lands and therefore if he purchase Lands Tenements and Hereditaments to him and his Heirs albeit he can have no Heir yet he is of capacity to take a fee-simple but not to hold for the King upon Office found shall have it by his Prerogative So it is if he purchase Lands and dyes the Law doth cast the free-hold and inheritance upon the King But if he purchase or take a Lease for years of a House or Ware-house which is for the accommodating him as a Merchant-stranger whose Prince or State is in League with ours there he may hold the same for that the same is incident to Commerce And in that case if he departs and relinquishes the Realm the King shall have the same so it is if he be no Merchant The like Law is if he takes a Lease of Meadows Lands Woods or Pastures the King shall have the same for the Law provides him nothing but a habitation to Trade and traffique in as a Merchant II. Though he may take
tongue or Nation whatsoever nor matters it of what sufficiency the Jurors are for the form of the venire facias shall not be altered but the clause of quorum quolibet habeat 4. c. shall be in If both parties are Aliens then the Inquest shall be all English for though the English may be supposed to favour themselves more then Strangers yet when both Parties are Aliens it will be presumed they will favour both alike without any difference IV. If an Alien is party who slips his opportunity and suffers a Trial by all English the same is not a Verdict Erroneous for if he will be so negligent as to slip that advantage which the Law gives him it is his fault for the Alien if he will have the benefit of that Law he must then pray a venire facias per meditatem Linguae at the time of the awarding the venire facias But if a neglect of that opportunity happens yet if he prays it after the awarding a general venire facias the same may be retreeved so as it be before the venire be returned and filed for then he may have a venire facias de novo or otherwise he cannot nor can he afterwards challenge the Array for this cause if it falls out the Juries are all Denizens though Sandford seems to be of a contrary opinion for the Alien must pray it at his peril V. If there be a general venire facias the Defendant cannot pray a decem Tales c. per medietatem Linguae upon this because the Tales ought to pursue the venire facias But if the venire facias be per medietatem Linguae the Tales ought to be per medietatem Linguae as if five Aliens and five Denizens appear on the principal Jury the Plaintif may have a Tales per medietatem but if the Tales be general de Circumstantibus it hath been held good enough for there being no exception taken by the Defendant upon the awarding thereof it shall be intended well awarded If an Alien that lives here under the protection of the King of England and Amity being between both Kings commits Treason he shall by force of the Act of 1. and 2. Ph. and Mary be tryed according to the due course of the Common Law and shall not in that case be tryed per medietatem Linguae But in case of Petit Treason Murder Fellony c. if he prays his Trial per medietatem Linguae the Court ought to grant it Yet if an Information be exhibited against an Alien the Trial is not per medietatem but according to the Common-Law If an Alien in League brings an action if there be cause the Defendant may plead in abatement but if it be an Alien Enemy he may conclude in the action In an action for words the Defendant pleaded not guilty and said he was an Alien born and prayed Trial per medietatem Linguae which was granted and at the nisi prius in London but six English-men and five Aliens appeared and the Plaintif prayed a Tales de Circumstantibus per medietatem Linguae and it was granted so there wanted one Alien and the Record was Ideo Alius Aliegena de Circumstantibus per vic' London ad requisitionem infra nominati Julii Caesaris per mandato Justiciarum de novo apposito cujus nomen panelo praedict ' affilatur secundum formam Statuti in hujusmodi casu nuper editi provise qui quidem Jurato sic de novo appositus viz. Christianus Dethick Alienigena exactus venit ac in Juratam illam simul cum aliis Juratoribus praedicta prius impanellatis Juratis Juratus fuit c. It was found for the Plaintiff and afterwards moved in Arrest of Judgment That no Tales was to be granted de Circumstantibus when the Trial is per medietatem Linguae by the Justices of Nisi prius by the Act of 35 H. 8. because in the Act it is spoken of Free-hold of Jurors and an Alien is not properly said of any Countrey or to have any Free-hold but it was adjudged because the Statute was made for speedy execution that it should be expounded favorably according to the intent and meaning of the Makers of the Act and though in this case the Tales was prayed by the Plaintiff where it ought to have been ad requisitionem defendentis yet that should be taken to be but a misprision and would be amended VI. If the Plaintiff or Defendant be Executor or Administrator though he be an Alien yet the Trial shall be by English because he sueth in Auter droit but if it be averred that the Testator or Intestate was an Alien then it shall be per medietatem Linguae Shely a French man who joyned with Stafford in the Rebellion in the taking of Scarborough Castle in the County of York he being taken was arraigned in the Kings Bench upon an Indictment of Treason and the Indictment was contra legiantiam suam debitam and the Indictment was rul'd to be good although he was no Subject because it was in the time of Peace between the Queen and the French King But if it had been in the time of War then the Party should not have been indicted but ransomed It was likewise rul'd there that the Trial was good although the Venire facias awarded in York was general and not de medietatem Linguae for such Trial per medietatem Linguae does not extend to Treasons 4. Ma. Dyer 145. the Indictment ought to omit the words Naturalem Dominam suam and begin that he intended Treason contra Dominam Reginam c. Hill 36. Eliz. in B. R. Stephano Ferraro d'Games case in Dr. Lopez Treason If an Alien Enemy come into this Realm and be taken in War he cannot be indicted of Treason for the Indictment cannot conclude contra legianeiae suae debitum for he never was in the protection of the King and therefore he shall suffer death by Marshal Law and so it was rul'd in 13 H 7. in Perkin Warbecks case who being an Alien born in Flanders feigned himself to be one of the Sons of King Edward the 4th and invaded the Realm with intent to take upon him the Dignity who had his Judgment and Trial by Martial Law and not by the Common-Law of England VII The Kingdom of Ireland was a Dominion separated and divided from England at the first and came to the Crown of England by Conquest in the time of Henry the Second and the meer Irish were as Aliens Enemies to to the Crown of England and were disabled to bring any action and were out of the protection of the Laws of this Realm and five Scepts of the Irish Nation were only enabled to the Laws of England viz. Oneil de Ultonia O Molloghlin de Media O Connoghor de Connacia O Brian de Tholmonio and Ma Murogh de Lagenia as appears by the Records
The Wares Merchandizes Debts or Duties that Merchants have as joint Traders or Partners shall not go to the Survivor but shall go to the Executor of him that is deceased If two joynt Merchants occupy their Stock Goods and Merchandize in Common to their common profit one of them naming of himself a Merchant shall have an account against the other naming him a Merchant and shall charge him as Receptor denariorum ipsius B. ex quacunque causa contractu ad communem utilitatem ipsorum A. B. provenient sicut per legem Mercatoriam rationabiliter monstrare poterit XV. And as the Law establishes security for their Estates so it gives them other immunities in their Commerce for if one Merchant draws a Bill of Exchange upon another be it in-Land or out-Land if it be by way of Exchange the acceptance of the Bill by the Party shall bind him to that party to whose use the Money in the Bill is to be paid and he may bring his action in his own name per legem Mercatoriam And so it is if a third Person that is a Stranger to the Bill shall accept the same for the honour of the Drawer it shall bind him as effectually as if he upon whom the Bill was drawn had accepted it and this by the Custom of Merchants XVI All other Subjects are restrained to depart the Realm to live out of the Realm and out of the Kings Obedience if the King so thinks fit but Merchants are not for they may depart and the same is no contempt they being excepted out of the Statute of 5 R. 2 cap. 2. And by the Common Law they might pass the Seas without Licence though not to Merchandize XVII It was once conceived that those Laws which were prohibitory against Forraign Goods did not bind a Merchant-Stranger but it was ruled otherwise For in the Leagues that are now established between Nation and Nation the Laws of either Kingdom are excepted and therefore as the English in France or in any other Nation in Amity are subject to the Laws of that Countrey where they reside so must they of France or of any other Country be subject to the Laws of England when resident or here and therefore if a French Man imports any Points Laces Belts Hats and the like they are forfeited XVIII The marking of Goods is of a great consequence as in relation to the settling the property of the Merchandize in the right Owner and in Courts of Justice both the Civil Law and the Common Law hath a great respect to the same therefore the use has been that every particular Merchant hath his particular mark appropriated to him by which means if the Person is of any value considerable as in relation to Commerce his mark is presently known Every Merchant is to set down his mark upon his Books of Account wherewith his Commodities are marked so Companies and Societies have their particular mark No Merchant ought to use another mark without leave first had of the Party whose mark the same is for as Flags are the Ensigns that give consusance of the Nation whose Ships they are so marks are to ascertain the Owners of their property without confusion or damage And though to set the mark of another Man alters not the property yet it may work such a detriment as may be very mischievous and therefore by the Common Law of England if J. S. shall maliciously set the mark of J. D. upon his Goods to the intent J. D. shall or may be brought into any trouble or put to any dammage or charge an action of the case will against J. S. CHAP. VII Of Factors I. Factors their qualifications generally considered as in refference to their employment II. Of Commissions and the words in the same that quallifies them in their employment III. Of Commissions to Factors that limit their actions IV. Of a Factor that deals for several Merchants of the obligations that oblige and not oblige each other V. Of their power considered as in refference to the dispensing with the Debtors of their Principals VI. Where the false entry or unfaithfulness of the Factor subjects him to answer dammage to his Principal and of the like committed by the Principal where to answer to the Factor VII Of Goods remitted to Factors and lost in their possession who bears the misfortune VIII Bills of Exchange drawn on the Factor by the Principalâ—… and accepted but before day of payment the Principal becomes Bankrupt whether the same must be payed IX Of Freighting of Ships by a Factor where he is obliged to see the same discharged X. Of the general rules to be used touching the construction of their actions I. A Factor is a Servant created by a Merchants Letters and taketh a kind of provision called Factorage such Persons are bound to answer the loss which happens by over-passing or exceeding their Commission but a simple Servant or an Apprentice can only incur his Masters displeasure The Spaniard hath a Proverb Quien passa Commission pier de Provision He that exceeds his Commission shall loose his Factorage But time and experience hath taught them to know better things for now it is Subolca la paga His Purse must pay for it The gain of Factorage is certain however the success of the Voyage proves and it is the prudence of Merchants to chuse honest and industruous Persons for otherwise the Factor may grow rich and the Merchant poor the first being sure of his reward the latter uncertain of his gain II. In Commissions they now generally incert these words Dispose do and deal therein as if it were your own by which the actions of the Factor are to be excused though it turns to his Principals loss because it shall be presumed he did it for the best and according to his discretion III. But bare Commission to a Factor to sell and dispose will not enable him to trust or give further day of payment for in the due execution of his authority he ought on a Sale to receive quid pro quo and as he delivers one receive the other for otherwise by that means as they may trust six Moneths they may trust sixteen years Nor by the vertue of that clause of Doing as if it were their own may they trust out to an unreasonable time as ten or twenty years instead of one two three Moneths which is the Customary time for the like Commodities And so it was adjudged where one had remitted Jewels to his Factor in Barbary who disposed of the same to Mulleshack the Emperor for a Sum certain to be paid at a time which being elapsed the Factor not obtaining it was forced to make the same good to his Principal IV. Again one and the same Factor may act for several Merchants who must run the joynt risque of his actions though they are meer Strangers to one another as if five Merchants shall remit to
there is no Nation in the World more tender and jealous of their honour then the English so none more impatiently tollerate the diminution thereof Hence it was that in all Treaties before almost any thing other was assertained the Dominion of the Sea and stricking the Top-fail was alwaies first provided for In the Year 1653 after the Dutch had measured the length of their Swords with those of this Nation and being sensible of the odds and having by their four Embassadours most humbly besought Peace this very Duty of the Flagg was demanded by the 15th Article in these words That the Ships and Uessels of the said United Provinces as well Men of War as others he they in single Ships or in Fleets meeting at Sea with any of the Ships of this State of England or in their service and wearing the Flagg shall strike the Flagg and lower their Top-sail untill they be passed by and shall likewise submit themselves to be visited if thereto required and perform all other respects due to the said Common Wealth of England to whom the Dominion and Soveraignty of the British Seas belong This was so peremptorily demanded that without the solemn acknowledging of the Soveraignty over the British Seas there was no Peace to be had that as to the acknowledging of the Soveraignty and the Flag they were willing to continue the Antient Custom but that of Visiting was somewhat hard 't is true the latter Clause was by the Usurper waved for reasons standing with his private interest but the first was made absolute by the 13 Article between Him and that Republique and from thence it was transcribed to the 10 Article at White-Hall and afterwards into the 19 Article at Breda and from thence into the 6th Article made last at Westm. and that Clause of searching of each others Ships made reciprocate by the 5 Article made in the Marine Treaty at London but that extends not to Ships of War but only the Ships of Subjects X. By the British Seas in the Article about the Flagg are meant the four Seas and not the Channel only for in the 16 Article they did express what was meant by the British Seas That the Inhabitants and Subjects of the United Provinces map with their Ships and Uessels furnished as Merchant Men fréely use their Navigation sail pass and repass in the Seas of Great Britain and Ireland and the Isles within the same commonly called the British Seas without any wrong or injury to be offered them by the Ships or People of this Common-wealth but on the contrary shall be treated with all love and Friendly offices and may likewise with their Men of War not excéeding such a number as shall be agréed upon sail pass and repass through the said Seas to and from the Countries and Ports beyond them but in case the said States General shall have occasion to pass through the said Seas with a greater number of Men of War they shall give thrée Months notice of their intention to the Common-wealth and obtain their consent for the passing of such a Fléet for preventing of Iealousy and misunderstanding betwixt the States by means thereof The first part of this Article doth plainly set out the extent of the British Seas and that it is not the bare Channel alone that comprehends the same but the four Seas and the same is further explained in the Great Case of Constables where the Dominion of the Queen before the union as to the Seas did extend midway between England and Spain but entirely between England and France for the French never had any right or claim to the British Seas for in the Wars between Edward the First and Philip the Fair all Commerce on both sides being agreed to be free so that to all Merchants whatsoever there should be induciae which were called sufferantia Guerrae and Judges on both sides were appointed to take cognizance of all things done against these Truces and should exercise Judicium secundum Legem Mercatoriam formam sufferantiae it was contained in the first provision of that League that they should defend each others Rights against all others this afterwards occasioned the introducing that Judgement in the same Kings time before those Judges chosen by both the said Princes by the Proctors of the Prelates Nobility and High Admiral of England and all the Cities Towns and Subjects of England c. unto which were joyned the suffrages of the most Maritime Nations as Genoa Catalonia Spain Almain Zeland Holland Freisland Denmark and Norway and divers other Subjects of the Roman Empire against Reginer Grimbald then Admiral of France for that there being Wars between Philip King of France and Guy Earl of Flanders he had taken Merchants upon those Seas in their Voyage to Flanders and despoiled them of their Goods whereas the Kings of England and their Predecessors as they all joyntly do declare and affirm without all controversy beyond the memory of Man have had the Supream Government of the English Seas and the Islands thereof Praesâ—…ribendo scilicet Leges Statuta atque interdicta armorum naviumque alio ac Mercatoriis armamentis instructarum causationes exigendo tutelam praebendo ubicunque opus esset atque alio constituendo quaecunque fuerint necessaria ad pacem jus equitatem conservandam inter omnimodas vates tam exteras quam in Imperio Anglicano comprehensas quae per illud transierint supremam iisdem item fuisse atque esse tutelam merum mixtum Imperium in juredicendo secundam dictas Leges Statuta praescripta interdicta aliisque in rebus quae ad summum Imperium attine in locis adjudicatis By which memorable Record it apparently shewes that the Kings of England have hand istud regimen dominium exclusive of the King of France bordering upon the same Seas and of all other Kings and Princes whatsoever and it was there adjudged that Grimbalds Patent was an usurpation on the King of England's Dominion and he adjudged to make satisfaction or if he proved unable then the King his Master should and that after satisfaction he rendred to punishment And as to the second part of the Articles of giving notice it was but an Act of Common prudence their late unexpected visit which they then gave put the English to some surprise but they facing the Battavian soon made them know that they were as capable of beating them home as they were then daring in coming out and were not to be braved out of a Dominion and Right which their Ancestors had with so much glory acquired and asserted XI By the Article of the Offensive and Defensive League between France and the United Provinces it was agreed That if at any time the Dutch Fleet which were to scoure the French Coasts in the Mediterranean from Pyrats should at any time meet the French the Admiral of the Dutch was to strike his
Flagg and lower his Top-Sail at his first approach to the French Fleet and to salute the Admiral of France with Guns who was to return the said salute by Guns also as was usual when the Dutch and English Fleet did meet Only in this the right of the Flagg of England differs from that claimed by the French for if there had been a failer on the part of the Dutch of paying that respect to the French the same would have amounted to no more but a breach of the League but the not striking to the King of Englands Flagg is open Rebellion and the Article does so signify for it is there mentioned as a Right and Soveraignty not a bare Dominion only like that of Jerusalem to the King of Spain XII The Duty of the Flagg that hath been so constantly pay'd to our Ancestors is of such advantage to the continuing the renown of this Nation that it serveth to imprint new reverence in Forreigners that render it and adds new courage to those of our Sea Men that exact it and since we know how much it imports a State that it be reverenced abroad and that Repute is the principal support of any Government it equally influenceth the Subjects at Home and Forreign Allies abroad And as there is no Nation in the World more tender of their Honour then the English so none more impatiently tollerate the diminution thereof with what resentments would not only the more generous and Noble but even the Popular and vulgar Sea Men detest this or any succeeding Age should they remit or loose that Regality those acknowledgements which their Predecessors with so much Glory asserted and the neglect whereof was alwaies punished as open Rebellion the indignity of such an Action being sufficient to enflame the whole Kingdom the consideration of which besides his Sacred Majesties own Royal inclination to the same and his evident testimonies never to abandon a ceremony of so high a concernment witness the exposing the one half of his own heart his Royal Highness in the asserting the same with such Fleets and in such Battles that no Age or time cannot shew a memorial of the like are causes sufficient to create in us new flames of love to those Royal Patriots and Defenders of our Rights Private Persons move in another sphear and act by other Rules then Soveraign Powers the regard of credit with them may oftentimes yield to those of utility or other motives the Publique receives little injury thereby or is their wisdom questioned for such punctilio's if they relinquish them for other Imoluments or Peace sake but Soveraigns cannot so transact their subjects the People participate in their Honour and indignities they have a property a direct Right in the former Soveraignes cannot alienate or suffer their Honours to be impaired because it is not really theirs it appertains to the Nation universally and they are all effectually injured by such transactions either because the indignity doth really extend to them or because the Government and Authority is thereupon weakned and prejudiced which is the greatest of Civil detriments that can befall a People though ordinarily they are not aware thereof As Prudence doth thus distinguish betwixt the demeanor of Private and Publique Persons so doth Charity it self for though the Gospel precepts do oblidge particular Persons to bear injuries and contumelies with patience and to surrender even the Coat as well as the Cloak yet is not this so to be construed as if even Private Christians were to yield up their Civil Rights to every insolent that would incroach upon and usurp them or that they were to deprive themselves of those Reparations which the Law and Government affords them neither is it so to be understood as if the Civil Magistrate in Christendom might not secure himself of that obedience and reverence which is due unto dignity but bear the Sword in vain XIII This being the value which this Nation did alwaies place upon the Right of the Flagg the which they never did regard it only as a Civility and Respect but as a principal Testimony of the unquestionable Right of this Nation to the Dominion and superiority of the adjacent Seas acknowledged generally by all the Neighbour States and Princes of Europe and must be pay'd and ackowledged by all Princes in the World that shall be or pass on the same The Maritime Dominion by the Laws of England were alwaies accounted the Four Seas such as are born thereon are not Aliens and to be within them is to be within the Legeance of the King and Realm of England The Records in the daies of Edward the 3d. and Henry the 5th proclaim it that those Kings and their Progenitors had ever been Lords of the Seas and amongst those many great Instances of proving the Soveraignty of the same is that famous Record of Edward the first and Phillip the Fair of France in which the Procurators of most Nations Bordering upon the Sea thoroughout Europe as the Genoeses Catalonians Almaines Zelanders Hollanders Freislanders Danes and Norwygians besides others under the Dominion of the Roman German Empire where all joyntly declare That the Kings of England by right of the said Kingdom from time to time whereof there is no memorial to the contrary have béen in peaceable possession of the Soveraign Lordship of the Seas of England and of the â—…es within the same with power of making and establishing Laws Statutes and Prohibitions of Arms and of Ships otherwise furnished then Merchant Men use to be and of taking surety and affording safe-guard in all cases where néed shall require and of ordering all things necessary for the maintaining of Peace Right and Equity among all manner of People as well of other Dominions as their own passing through the said Seas and the Soveraign Guard thereof By which it plainly appears That the King of England had then been in peaceable possession of the said Dominion by immemorial prescription that the Soveraignty belongeth unto them not because they were Domini utriusque ripas when they had both England and Normandy and were Lords of both shores for Edward the first at that time had not Normandy but that it is inseparably appendant and annexed to the Kingdom of England our Kings being Superior Lords of the said Seas by reason as the very Record mentions of the said Kingdom and since that the Soveraignty of the Sea did alwaies appertain unto the English King not in any other Right then that of the Kingdom of England no Prince or Republique ought or can doubt the Tittle by which our present claim is deduced 't is in right of Britannia that the same is challenged 't was in that right the Romans held it the claim justified Ed. 3. and his Rose Noble though there are other reasons regarding to the Lancastrian Line which yield a Colour for the use of the Port-cullis in the Roal Banners of England
Oath as their firmament though that is not so for the most part of the efficacy of such Leagues rests in the promise it self to which for Religion sake the Oath is added Hence it is that Promises made to a Free-People are in their nature real because the subject is a permanent matter although the State or Republique be changed into a Monarchy yet the League remains for that the body i. e. the power is still the same though the Head be changed And the Person is incerted into the agreement not that the agreement may be personal but to shew with whom it is made for if it be incerted into the League that it shall be perpetual or that it is made for the good of the Kingdom or with the Person and his Successors or for a time limited the same does most apparently demonstrate the thing to be real However in all Leagues which tend to Peace though there may remain somewhat whereby words of ambiguity may arise yet the most pious way of interpreting hath been to account the same rather real then Personal for all Leagues made for Peace or Commerce admit of a favorable construction Leagues defensive have more of favour offensive of burthen XVIII Leagues made with Princes although they happen afterwards to be driven out of their Kingdoms by their Subjects yet the League remains firm and good for the Right of the Kingdom remains with such an unfortunate Prince notwithstanding he hath lost his Kingdom on the other hand Leagues made with the Invader cannot be good for his cause being unjust is odious but if the people will make him King de facto and investe him the question is then out of all controversy for then he is become a King regnant and by the Laws of England if treason by committed against his Person and after he is beaten out and the King de Jure comes to his Crown the King de Jure may punish those Traytours with death The Earl of Warwick having raised an Army in France and Flanders invaded England and within five or six daies after his landing King Edwards Forces betraying him the Earl became Master of the Realm the King flying for protection to his Kinsman the Duke of Burgundy he kindly in his misfortunes entertained him yet while he was in this banished estate the Duke of Burgundy renewed the League with the English it being agreed that notwithstanding King Edwards misfortune the League remained firm and unviolable between the Duke Charles of Burgundy and the King and Realm of England So that for Edward they should name Henry who was newly taken out of the Tower by the Earl of Warwick at his chacing out of King Edward now the true reason that Leagues remain and are firm notwithstanding such a change is because there goes along with them a tacite condition viz. of holding their possessions and therefore the World wondred not that His late Sacred Majesty having sworn a League with the King of Spain expresly as he was King of Portugal did notwithstanding receive two Embassadors from the then new King of Portugal and that without being judged either in England or Spain to have broken his former Oath and League The Duke of Guise having formed the League against Henry the Third which was that in regard the King was so cold in the Profession of the Romish Faith that it was in danger to be extinguisht by the increase which he permitted of the Reformed Religion especially seeing Henry the Fourth then King of Navar was of that Religion and was to succeed to the Crown wherefore by the Mediation of Philip the Second of Spain the Pope qualified the Duke of Guise Head of that Catholique League and which in point of Government was to set him above the King avowed him Protector of the Catholique Faith in the Kingdom of France When Henry the Fourth succeeded the Crown then this League for security of Religion was most violent and the Spaniard without hoped by nourishing thus the division within to carry all for himself at last To avoid which gin and to answer all the King chang'd his Religion and negotiated by d'Ossat to be received by the Pope as a dutyful Son of the Church of Rome demanding absolution for what was past and making large promisses of due obedience for the time to come the King of Spains interest was that he should not be received and thereupon he endeavoured to perswade the Pope that King Henry did but dissemble with him and that under this disguise he would easiest ruine the Romish Religion notwithstanding this the Cardinal obtained his Reception Absolution and Benidiction through the many promises and presents which he made to His Holyness whereupon the Spaniards designes were in a moment all blown over from France but fell heavily upon the United Provinces which were sorely opprest for that they apprehended the loss and ruine of their Countrey and thereupon they implored assistance from King Henry who received their Ambassadours very gratiously and gave them assurance of relief The King of Spain who wanted no good intelligence in the Court of France immediately remonstrates to the Pope that his former inclinations concerning Henry's dissimulations did now appear in the face of all the World and that seeing His Holyness had been so credulous he knew not now whether they should be able to save the Catholique Faith from being subjected to the Reformed Religion or no for whereas the Hollanders had revolted from him only because he resolved to use the true means for the establishment of the Romish Faith among them and that now he was in a fair way of reducing them which conduced so much by his Holiness his opinion to the establishment of the Romish Faith Henry had taken their party against him in that work and that at Paris he had received their Ambassadors to that purpose although he knew they were his lawful Subjects c. This startled the Pope not a little who charged d'Ossat for having betrayed him and put the Church in danger this argument was as subtil on the Spaniards side as changing Religion was on King Henry's and therefore the Cardinal was not a little perplext how to answer it to the advantage of his Master as also coherently to the considerations of his former reception into the Church But at last he replyed That His Holyness needed not wonder how in reason of State those different Religions might joyn together for political ends without hazard of altering Religion Thus David sought protection of the Philistians and Abraham redeemed the sinful Sodomites That he took it to be upon the same ground that His Holyness himself not long before received a Persian Ambassador who was so far from being an Heretick that he never pretended to the Name of Christian that it was a plausible argument which the King of Spain used in complaining of Henry's receiving and avowing their Ambassador especially knowing
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.
his Condition considered in reference to his Interest and Authority generally II. Of Goods lost or imbezelled or any other detriment happens in a Port who shall answer III. The Duty of Masters of Ships as if they shall sâ—…t Sayl after an Imbargo who shall answer IV. And of faults ascribed to him before departure in Tempestuous weather staying in Port. c. V. Over-charging or over-lading the Ship above the birth-mark or receit of such persons a Ship-board as may hazard the Lading VI. Of Lading aboard in the Ships of Enemies his own proving disabled VII Of shipping of Goods elsewhere then at the publique Ports or Keyes and of taking in prohibited Goods VIII Of wearing unlawful Colours or Flaggs and of yielding up his Ship Cowardly if assaulted where lyable and where excused IX Of carrying fictitious Cocquets and Papers and refusing payment of Customes and Duties X. Of setting Sayl with insufficient Tackle and of taking in and delivering out with the like and of his Charge of Goods till safely delivered XI Of departing without giving Notice to the Customer XII Of Faults committed by Masters and Skippers at Sea XIII Rules in Law in the Charging him for Reparation of Damage XIV Of the Power and Authority that the Master hath in disposing Hipochicating or pledging the Ship Furniture and Lading XV. Where Masters are disabled though in necessity to Impawn the Vessel XVI Where they may dispose of Vessel and Lading and where not XVII What Vessels and Marriners the Master must have for Importing in or Exporting out of his Majesties Plantations in Asia Affrica and America XVIII What Ships may go from Port to Port in England XIX Ships not to import the Goods of any Country but of that from whence they are brought XX. What time the Master shall be coming up after arrived at Gravesend or at any other Port within the Realm in order to his discharge XXI Of going from Port to Port within the Realm how provided XXII Of Goods prohibited to be imported from Netherlands or Germany in any Ships whatsoever I. A Master of a Ship is no more then one who for his knowledg in Navigation fidelity discretion hath the Government of the Ship committed to his care and management and by the Common Law by which properties are to be guided he hath no property either general or special by the constituting of him a Master yet the Law looks upon him as an Officer who must render and give an account for the whole charge when once committed to his care and custody and upon failer to render satisfaction and therefore if misfortunes happens if they be either through negligence wilfulness or ignorance of himself or his Mariners he must be responsible II. If the fault be commited in any Port Haven River or Creek or any other place which is infra Corpus Comitatus the Common Law shall have Jurisdiction to answer the party damnified and not the Admiralty but if the same be committed super altum mare the Admiralty shall have Jurisdiction of the same yet if it be on a place where there is divisum imperium then according to the flux or reflux the Admiralty may challenge the other of Common right belonging to the Common Law according to the resolution given And therefore so soon as Merchandises and other Commodities are put aboard the Ship whether she be riding in Port Haven or any other part of the Seas he that is Exerciter Navis is chargeable therewith and if the same be there lost or purloyned or sustaine any damage hurt or loss whether in the Haven or Port before or upon the Seas after she is in her Voyage whether it be by Marriners or by any other through their permission he that is Exercitor Navis must answer the damage for that the very lading of the goods aboard the Ship does Subject the Master to answer the same and with this agrees the Common Law where it was adjudged that goods being sent aboard a Ship and the Master having signed his Bills of Lading for the same the goods were stowed and in the night divers persons under the pretence that they were Press Masters entered the Ship and rob'd her of those goods the Merchant brought an action at the Common Law against the Master and the Question was Whether he should answer for the same for it was alledged on his part That there was no default or negligence in him for he had a sufficient guard the Goods were all lockt up under hatches the Theeves came as Press-Masters and by force robb'd the Ship and that the same was vis major and that he could not have prevented the same And lastly That though he was called Master or Exercitor navis yet he had no share in the Ship and was but in the nature of a Servant acting for a Salary But notwithstanding it was adjudged for the Plaintiff for at his peril he must see that all things be forth-coming that are delivered to him let what accident will happen the Act of God or an Enemy onely excepted but for Fire Theeves and the like he must answer and is in the nature of a Common Carryer and that though he receives a Sallary yet he is a known and publique Officer and one that the Law looks upon to answer and that the Plaintiff hath his Election to charge either Master or Owners or both at his pleasure but can have but one satisfaction If a Master shall receive Goods at the Wharf or Key or shall send his Boat for the same and they happen to be lost he shall likewise answer both by the Maritime Law and the Common Law III. If Goods are laden a board and after an Embargo or Restraint from the Prince or State he breaks ground or endeavours to sayl away if any damage accrues he must be responsible for the same The reason is because his Freight is due and must be paid nay although the very Goods be seized as bona contra bandos IV. He must not sayl in Tempestuous weather nor put forth to Sea without having first consulted with his company Nor must he stay in Port or Harbour without just cause when a fair wind invites his departure V. He must not over-charge or lade his Ship above the birth-mark or take into his Ship any persons of an obscure and unknown condition without Letters of safe conduct VI. Nor ought he to lade any of his Merchants Goods aboard any of the Kings Enemies Ships admitting his own Vessel leaky or disabled without Letters of safe Conduct otherwise the same may be made prize and he must answer the damage that follows the action Nor shall he come or sneak into the Creeks or other places when laden homewards but into the Kings great Ports unless he be driven in by Tempest for otherwise he forfeits to the King all the Merchandize and therefore must answer VII Nor ought he
been denyed them notwithstanding that the Judge of the Admiralty is Judge of the Court of Assurance XIX By the making of an Office Pollicy according to the Statute these advantages will follow 1. If the Pollicy be lost if the same be entred with the Register of the Office the Entry is effectual to answer the matter both at the Common Law as well as in the same Court but a private Pollicy lost is like a Deed burnt unless that there be very strong evidence as a Copy and the like it will be of little value So that then there will remain nothing but an Equitable relief in Chancery for the satisfaction the party 2. If a man Freights out a Ship from London to Cales and assures here he may write to his Correspondent to make an assurance there of the same if the matter comes before Commissioners they may examine the Ensured upon Oath and determine therein according to Law and the Custome of Merchants But at the Common Law the same cannot be but relief must be had in that point according to Equity in Chancery 3. The same is a Court of Equity as well as a Court of Law 4. They may decree against 20 Assurors at one time but at Law they must be sued distinctly but they cannot compel the Defendants to put in Bayl. 5. They may proceed out of Term as well as in Term and if the matter will bear it they may finish a Cause in a fortnights time 6. The Judgments there given are generally upon mature deliberation and by persons well skilled in Maritime affairs and if their Sentence is thought to be unreasonable the Lord Chancellor or Lord Keeper may on Appeal determine the same CHAP. VIII Of Prisage and Butlerage I. What is Prisage where taken and of what II. Merchant Strangers exempted from the same III. When due and the exemption of the Citizens of London from the same IV. What Citizens are capable and where not V. A Forraigner imports and makes a Citizen Executor and dyes whether he shall have the benefit of the Immunity VI. Where a Forraigner sells to a Citizen before but he broken the Vendee shall be chargeable VII Where a Grant to discharge a particular Ship shall be good and where a Grant to particular persons shall be otherwise VIII Of Butlerage what and whom are exempted IX Where the King becomes entituled to those duties X. A Grant to be free of all Customes Impositions c. extends not to Prisage and Butlerage XI Cinque-Ports exempted from Prisage I. PRisage is a certain taking or purveyance for wine to the Kings use The same is an ancient Duty which the Kings of England have time out of mind had and received the manner hath been by taking of every Ship or Vessel that should come into this Realm if ten Tun to have for Prisage one Tun and if it contain 20 Tun or more to have two Tun viz. unum ante doleum and the other deorsum paying 20 s. for each Tun And this ancient Immunity they have enjoyed as a Flower of the Crown and by some has been conceived not grantable away without Act of Parliament But yet in 6 E. 3. fo 3. Case 15. mentions the same to be grantable over II. King Edward the First having laid some Impositions on the Merchants which in Anno 25. of his Reign being taken away with promise that neither he nor his Successors should do any such thing without Assent of Parliament In 31. of his Reign they granted him an encrease of Customes in lieu of which he granted them many Immunities as Release of Prisage c. III. Prisage is not due till the unlading or that which is commonly called breaking of Bulk for the words are de qualibet navi important vini disonerant inde King Edward the Third by his Charter dated 6. Martij Anno Regni primi granted his Royal Charter of discharge to the Major Commonalty and Citizens of London in haec verba viz. Quod de vinis Civium nulla prisa fiat sed perpetue inde essent quieti c. which was afterwards allowed in the Exchequer IV. It is not every Citizen that is capable of this Priviledge but onely those that are Resiant within the City And so it was Rul'd in the case of one Knowls who being a Citizen and free Grocer of London removed his Houshold cum pannis and did dwell at Boistol but yet kept his Shop in London and a Ship of his arriving with Wines at London and being unladen the Prisage was demanded he claymed the benefit of discharge It was adjudged he was not capable of the same for he that will claym the benefit of this discharge ought to be Civis incola Comorans 24 H. 6. A Private Act of Parliament Complaint was made That the Lord Major of London would make Strangers Citizens It was there declared That this benefit to be discharged from payment of Prisage did not extend to such Citizens as were dotati made free but unto those Citizens onely which are comorant incolant and resiant within the City V. If a Forreigner brings a Ship laden with Wines into the Port of London and then makes a Citizen his Executor and dyes he shall not have the benefit of this Immunity from payment of Prisage for these Wines for that they are not bona Civium VI. If a Forreigner arrives with a Ship laden with Wines at a Port with an intent to unlade and before the Goods are entred or Bulk is broken he sells them to a Citizen Prisage shall be paid notwithstanding for it was never the Kings grant to discharge a Citizen in such a manner VII If the King does discharge such a Ship of J. S. being at Sea particularly naming the same from the payment of Prisage and he dyes before the Ship arrives no duty can be demanded But it has been held If a particular person has a grant to him to be discharged of his Goods and he dyes before the arrival the duty shall be paid A Quo Warranto was brought against three Archbishops of York to shew cause why they demanded to have Prisage for Wines brought into the Port of Hull The two first pleaded to have onely the first taste and a pre-emption after Prisage paid But the third pleaded a Charter of 15 E. 2. by force of which he claimed the same and Rul'd not good For though the Charter might be good yet it was held in that case a disclaymer by the Predecessor should bind the Successor And at this day the Duke of Ormond in Ireland hath an Inheritance in the Prisage of Wines by the Kings Charter VIII Butlerage is a Custome due from Merchant-Strangers of 2s upon every Tun of Wine brought into this Realm by them King John granted to the Merchants of Aquitaine Trading for Wines thence into England divers Liberties amongst others Libertatibus concessis Mercatoribus vinetarijs
him on the face and gave him a push on the back and after this he was Registred for a Freeman This being performed the Servant having his head shaven purposely at that time received a Cap as a Token of Liberty Tertullian observes That at this time of their Manumission the Servants received from their Masters a white Garment a Gold Ring and a new Name added to their former By the Laws of England every Subject Born within the Kings Dominions is a Freeman of this Realm as appears by the Grand Charter Cap. 14. yea though he be a Bond-Slave to a Subject But a Stranger Born is no Free-man till the King have made him a Denizon in whose Power alone without the help of any other one may be made Free To be a Freeman of the Realm the place of Birth is held more considerable than the Quality of the Person Yet by the opinion of Hussey Chief Justice in 1 R. 3. fo 4. And in Calvins Case of the Post Nati it is held for Law That if Ambassadors of this Realm have Children Born in France or else where the Father and Mother being Natural Born Subjects the Children are Free of the Realm of England But if either the Father or the Mother of such Children were an Alien then are not those Children Free But the Law is conceived to be otherwise at this day The Statute de Natis ultra mare 25 E. 3. Cap. declares the Issue Born of an English-man upon an English-woman shall be a Denizon for upon the Construction of this Statute it has been adjudged more than once That if an English-man marry a Foreiner and has Issue by her Born beyond Seas the Issue is a Natural Born Subject IX Disfranchising by the Romans called Capitis diminutio was Three fold Maxima Media Minima the least degree was when the Censors pulled a Man from a higher Tribe down to a lower and less Honourable or when by any Censure they disabled a man from suffraging or giving his Voice in the publick Assemblies such as were thus in the last manner punished were termed Aerarii and in aerarios veluti quia omnia alia jura Civium Romanorum preterquam tributi aeris conferendi amiserunt Gellius relates That P. Scipio Nascica and M. Pompilius being Censors taking a view of the Roman Knights observed one of them to be mounted on a lean starvling Horse himself being exceeding fat whereupon they demanded the Reason why his Horse was so lean himself being so fat his Answer was Quoniam ego inquit me curro statius mens servus By the Ancient Laws of England and by the Great Charter no Freeman shall be taken or Imprisoned but by the Lawful Judgment of his Peers that is by Jury Peers for Peers ordinary Juries for others who are their Peers or by the Law of the Land which is always understood by due process of the Law and not the Law of the Land generally for otherwise that would comprehend Bond-men whom we call Villains who are excluded by the word Liber for such Bond-men might be Imprisoned at the pleasure of his Lord but a Free-man neither could nor can without a just Cause nor does the Priviledge extend to private Actions or Suits between Subject and Subject but even between the Sovereign and the Subject Hence it is that if a Peer of the Realm be Arraigned at the Suit of the King for a Murder he shall be tryed by his Peers that is by the Nobles But if he be appealed of Murder upon the prosecution of a Subject his Tryal shall be by an ordinary Jury of 12 Free-holders and as the Grand Charter did and does protect the Persons of Free-men so likewise their Free-hold For by the same Charter it is declared That the King or His Ministers shall out no man of his Free-hold without reasonable Judgment and so it was rul'd upon a Petition in Parliament setting forth that a Writ under the Privy Seal went to the Guardian of the Great Seal to cause Lands to be seized into the Kings Hands and that thereupon a Writ issued forth to the Escheater to seize against the form of the Great Charter upon debate of which the Party had Judgment to be restored the greatest and most Explanatory Act which succeeded in point of Confirmation was that of Edward the 3d. the words are That no Man of what Estate or Condition soever he be shall be put out of the Lands and Tenements nor taken or imprisoned nor dis-inherited nor put to death without he be brought to answer by due process of the Law that is by the Common Law 2. Diminutio media was an Exilement out of the City without the loss of ones Freedom the words of the Judgment or Sentence were Tibi aquae igni interdico 3. Diminutio maxima was the loss both of the City and the Freedom and by his Judgment or Sentence was obliged and limited to one peculiar Countrey all other places in general being forbidden him There was a Fourth kind of Banishment Disfranchising called relegatio which was the Exilement only for a season as that of Ovid's The Laws of England in this matter have some resemblance with those of the Romans for Bracton observes 4 Distinctions 1. Specialis hoc est interdictio talis Provinciae Civitatis Burgi aut Villae 2. Generalis Interdictio totius Regni aliquando est 3. Temporaria pro duobus tribus quatuor aut pluribus annis aut c. 4. Perpetua pro termino vitae exilium est aliquando ex arbitrio principis sicut in exiliando Duces Hertfordiae Norfolciae per Regem Richardum Secundum aliquando per Judicium Terrae ut fit in Casu Piers de Gaviston etiam in Casu Hugonis de le Spencer Junioris qui ambo fuerunt exilit ' per Judicium in Parliamento So likewise was that of the Banishment of the Earl of Clarendon who dyed beyond the Seas X. Abjuration was also a Legal Exile by the Judgment of the Common Law as also by the Statute Law and in the Statute of Westm the second Cap. 35. He which Ravishes a Ward and cannot render the Ward unmarried or the value of his Marriage must abjure the Realm and this is a General Exile And by the Statute made 31 Ed. 1. Butchers are to be abjured the Town if they offend the Fourth time in selling measled Flesh and this is a Special Banishment A man Exil'd does forfeit these things 1. Hee looseth thereby the Freedom and Liberty of the Nation out of which he is Exiled 2. He forfeits his freedom in the Burrough or City where he was free for he which forfeits the Freedom of the whole Realm forfeits his Freedom in every part 3. The Law accounts him as one dead for his Heir may enter and so may his Wife enter into her own Lands and may sue
as the Conqueror should transmit to them all which are the tokens of a Nation by conquest made subordinate to the Conqueror and are part Heril and part Civil and though they may remain a Kingdom and absolute within themselves as to the making of Laws to the obliging each other yet they can no wayes impose on their Conqueror for though that be true which in Quintilian is alledged on the behalf of the Thebanes that that only is the Conquerors which he holds himself but an Incorporeal right can not be holden and the condition of an Heir and of a Conqueror is different because the right passeth to the former by the descent but only the thing by the last by virtue of the Conquest But certainly that is no objection for he that is master of the Persons is also master of the things and of all right which does belong to the Persons for he that is possessed dotâ—… not possesse for himself nor hath he any thing in his power who hath not himself and so it is if he leaves the right of a Kingdom to a conquered People he may take to himself some things which were the Kingdoms for it is at his pleasure to appoint what measure he will to his own favour from hence it is we may observe what fort of Empire that Kingdom is at this day VII Now Ireland before the same became united to the Crown by the Conquest of Henry the II. the natives were meer Aliens and out of the protection of the Laws of this Realm yet when once they became a conquered People and subject to the Crown of England and united ad fidem Regis there did arise their allegeance but that union neither made them capable of the Laws of England nor of their own till such time as the Conqueror had so declared them now what do they desire in order to revive their Government First they humbly beg of King Henry II. that since he was pleased that they should remain as a distinct Dominion that their ancient Customes or Usages should not continue that he would be pleased to ordain that such Laws as he had in England should be of force and observed in Ireland pursuant to which he grants them power to hold Assemblies by the three Estates of the Realm and that they should be regulated according to the institution and manner of the Parliaments in England should have the benefit of Magna Charta and other the great Laws of England and by such means puts them into a method of Governing themselves according to the known wayes of England and to make such Laws as should bind among themselves and by following the example of those of England their Judgment might be supervized and corrected according to the Justice and Laws of England by Writs of Error Appeal and the like Now here is no continuing or reviving their Ancient Government but the introducing a new one part Civil and part Heril nor indeed had they before any such thing as a Parliament there or general Assembly of the three Estates for when Henry the II. went over there were several Kings or Scepts who had their several and distinct Assemblies but when they submitted this great Assembly of Estates which he constituted was a collection out of all of them for their future well Government so that whatsoever modus of Regiment the Conqueror declared it was no more then for the well Governing of the Place and making such Laws as were necessary and proper amongst themselves But for them to impose by vertue of an Act of Naturalization upon an absolute Kingdom as England without the consent of the three Estates of the same surely was never intended much less effected the case is both great and curious therefore c. VIII By the Laws of France all Persons not born under legeance of that King are accounted Aliens and if they dye the King is entitled to the estate for all shall be seized into his Exchequer or Finances but if they make a Will the prerogative is disappointed Yet that extends only to Chattels personal in which Strangers passing through the same have greater immunities then Aliens there resident for Travailers dying without Will the Heirs or Executors shall have benefit and possession of their Estates IX The like Priviledge the Kings of England formerly claimed in the Goods and Estates of the Jews after their death if the Heir sued not and paid a fine to the King to enjoy them as by this Record appears Irratores super sacrum suum dicunt quod praedictum Messuagium fuit quondam Eliae le Bland qui c. diem claufit extremum quia mos est Judaeismi quod Dominus Reg omnia Cattalla Judaei mortui de jure dare poterit cui voluerit nisi propinquer haeres ejusdem Judaei finem feceret pro eisdem dicunt quod Dominus Rex dictum Messuagium dare poterit cui voluerit sine injuria alicui facienda si ita quod sit haeres dicti Eliae finem non fecerit pro Catallis ejusdem Eliae habendis c. But whether the same is now used may seem doubtful for the goods of Aliens escheat not at this day to the Crown but Administration shall be committed to the next of Kin. X. By the Laws of France Flanders Milan and the French County of Savoy though possessed by several other Princes yet the Natives of the same partake in the immunities with the natural born Subjects of France and if they dye without Will their Heirs claim their Estates the reason given because say they those Countreys were never alienated from them but were alwayes annexed to the Crown of France who acknowledges them to be their Subjects to this day But in England it is otherwise for those that are born in Gascoin Normandy Acquitain and those other Territories which were formerly the possessions of the Crown of England in which if any had been born when subject to the same they would have been natural born Subjects yet now are esteemed Aliens and so was the case vouched by Shard of a Norman who had robbed together with other English divers of his Majesties Subjects in the Narrow Seas being taken and arraigned the Norman was found guilty only of Fellony and the rest of Treason for that Normandy being lost by King John was out of the allegiance of Ed. 3. and the Norman was accounted as an Alien XI In France the Kings may there Denizize so likewise here in England but with this difference the Letters of Denization by those of France remove the totall disability and incapacity of the Alien But in England the Charter of Donasion or Denization is but a temporary partial and imperfect amotion of the disability of an Alien for though it puts the Person Indenizen'd as to some purposes in the condition of a Subject and enables a transmission hereditary to his Children born after the Denization
President which governs in their name at Banda they have a Fort for a retreat where they must deliver them the Spices at a certain price in Trinate they have another a mile distant of that of the Portugales at Magniene they have three at Motire one at Gilele they have taken that which the Portugales have built and indeed whatsoever either can or may consist with their interest in those parts they have engrossed and by that means almost the Trade of the whole Spices of the East VI. So likewise the Most Christian King hath within few years established such another Trading to those Eastern Parts And in England we have several others as that of trading to Turkey that of Affrica to Guiny and several others dividing the several Trades according to the Coasts and Places where they are appointed forbidding them to intrench or incroach on each other so likewise to all other his Majesties Subjects on severe penalties VII Now it is not the dividing of the Trade into Companies that can answer the expectation but it is the dividing the Trade into Companies where the Places may bear it as that to the Indies Turkey Hambourough and some others But to some others as the Canaries France or any of those Places on this side the Line it has been conceived the Trade will not bear it but the same would be better distributed either into the Trade of voluntary Associations or single Traders others perhaps would result into Monopolies if incorporated however the Standard rule is to know whether the Trade of the Place will bear a Company or not VIII Merchants in England were alwayes favourably provided for by the Common Law of this Kingdom By the Ancient Laws of King Alfred it was provided Defer due fuit que nul Merchant Alien ne hantaâ—…t Angleterre forsque aur quater Foires ne que nul demeurast in la terre outer quarante Iours Mercatorum navigia vel inimicorum quidem quaecunque ex alto nullis jactata tempestatibus in portum aliquem invehentur tranquilla pace fruuntor quin etiam si maris acta fluctibus ad domicilium aliquod illustre ac pacis beneficio donatum navis appulerit inimica atque istuc nautae confugerint ipsi res illorum omnes angusta pace potiuntor IX Again by the Grand Charter of our Liberties they are provided for in these words Omnes Mercatores nisi publice antea prohibiti fuerint habeant salvum securum conductum exire de Anglia venire in Angliam morari ire per Angliam tam per terram quam per aquam ad emendum vel vendendum sine omnibus malis tolentis per antiquas rectas consuetudines praeterquam in tempore guerrae Et sint de terra contra nos guerrina tales inveniantur in terra nostra in principio guerrae attachiantur sine damno corporum suorum vel rerum donec sciatur a nobis vel a Capitali Justitiario nostro quomodo Mercatores terrae nostrae tractantur qui nunc inveniantur in terra illa contra nos guerrina Et si nostri salvi sint ibi alii salvi sint in terra nostra 1. By which it is declared that all Merchant Strangers might be publiquely prohibited to Trade into this Realm be they in Amity or otherwise 2. All Merchant Strangers in Amity except such as be so publiquely prohibited shall have safe and sure conduct in seven things 1. To depart out of England 2. To come into 3. To tarry in 4. By Water and Land to go in and thorough 5. To buy and sell  6. Without any manner of evils Tolls  7. By old and rightful Customs  X. But concerning such Merchant Strangers whose Prince is in War with the Crown of England if they are found within the Realm at the beginning of the War they shall be attached with a Priviledge and limitation i. e. without harm of Body or Goods with this limitation until it be known to the King or his Chief Justice how Merchants of England are used and intreated in their Countrey and accordingly they shall be used in England the same being jus Beli. But for Merchant Strangers that come into the Realm after War begun they may be dealt withal as open Enemies It being the Pollicy of England ever to entertain Merchant Strangers fairly in the 18. year of Ed. 1. in the Parliament Roll it is contained thus Cives London peâ—…unt quod alienigenae Mercatores expellantur a Civitate quia dicantur ad depauperationem Civium c. Responsio Rex intendit quod Mercatores extranei sunt idonei utiles magnatibus c. non habet Concilium cos expellendi However though great Immunities were granted them yet they alwayes found Sureties that they should not carry out the Merchandize which they brought in XI And at this day if they bring in any Merchandize into the Realm and sell the same for Moneys they are to bestow the same upon other Merchandizes of England without carrying of any Gold or Silver in coin plate or mass out on forfeiture the principal reason of this was as well to preserve and keep the Gold and Silver within the Realm as for the encrease of the Manufactures and the same at this day extends as well to Denizons so made by Letters Patents as Strangers however he may use the same in payment to the Kings Leige People without incurring the penalty of the Statute of 4 H. 4. but yet in strictness of Law ought not to receive any Gold in payment XII All Merchant Strangers that shall be made Denizons either by the Kings Letters Patents or by Act of Parliament must pay for their Merchandize like Custom and Subsidy as they ought or should pay before they were made Denizons XIII Every one that buys and sells is not from thence to be denominated a Merchant but only he who trafiques in the way of Commerce by importation or exportation or otherwise in the way of Emption vendition Barter permutation or exchange and which makes it his living to buy and sell and that by a continued assiduity or frequent negotiation in the mystery of merchandizing But those that buy Goods to reduce them by their own art or industry into other forms then formerly they were of are properly called Artificers not Merchants Not but Merchants may and do alter Commodities after they have bought them for the more expedite Sale of them but that renders them nor Artiâ—…rs but the same is part of the mystery of Mâ—…ts But Perâ—…â—…ying Commodities though theâ—… alâ—… not the form yet if they are such as â—…ell the 〈◊〉 at â—…ure dayes of payment for greater priâ—… then 〈◊〉 〈◊〉 them they are not properly called Merchants 〈◊〉 are 〈◊〉 thâ—… they 〈◊〉 〈◊〉 other names as Ware-House Keepers and the like but Banckers and such as deal by Exchange are properly called Merchants XIV
abuses are up on such an account legally tollerated In omnibus rebus vetustas ipsa plurimum habet dignitatis ita ut Massalienses quorum praestantissima creditur fuâ—…ssa Respublica laudentur to nomine quod gladio ad puniendos sontes usi sint eodem a condita Urbe quo indicarent in minimis quoque rebus antiquae consuetudinis momenta servanda Proxime enim ad demum accidit Antiquitas aeternitatis quadam imagine Grot. de Antiq. Rep. Batav in Praefat. Ceteris mortalibus in eo stare consilia quid sibi conducere putent Principium diversam esse sortem quibus praecipua rerum ad summam dirigenda Tacitus Annal. l. 4. †Vide the Earl of Shastsbury's Speech to the Parliament 1672. Si fama tua videtur necessaria rectam muneris tui administrationem non potest condonare Lessius de Inst. l. 2. c. 11. dub 24. §. 26. Selden Mare Clausum l. 2. cap. 24. Fitzherberts protection tit 46. Seld. ibidem c. 23. Co. 4. Iustit fo 142. Vide part of the Record in fo 54. And the case 29 Eliz. in B. R. Sir John Constables Leonard 3. part 72 the reason of the opinion there is mistaken for the right unto the Sea ariseth not from the possession of the shores for the Sea and Land make distinct Territories and by the Laws of England the Land is called the Realm but the Sea the Dominion and as the loss of one Province doth not infer that the Prince must resign up the rest so the loss of the Land Territory doth not by concomitancy argue the loss of the adjacent Seas I is no more necessary that every Sea Town should command 100 miles at Sea then that each City should command 100 miles by Land Julius Paucius de Dom. maris Adriatici Anno Domini 1600. Anno Domini 1609. Anno Domini 1636. Will. Fulbecks Pandects of the Law of Nations c. 4. The King against Sir John Byron Bridgman fo 23 24 25. Vide postea in Chap. of Customs June 30. anno 1598. Selden lib. 1. cap. 11. Alber. Gentil Hisp. Advocat l. 1. c. 14. vide Mr. Secretary Cookes Letter to Sir William Boswell April 16 1635. * The fight of the Dutch with the Spanish Fleet in the 1639. Downes Scilicet hoc factum Hollan dorum est contra justitiam omnem pro certo contra reverentiam qua partibus territoriis debitur alienis Alâ—… Gent. Hisp. Advocat l. 1. 3. 14. Anno Domini 1552. JunÌ„e 2 and 3. About the 8 of â—…g 1653 †Offered to Queen Eliz. Cette-cy entre autres merite bien une consideration speciale Que la conjunctiondesdits Pays de Hollande Zelande Frize des Villes de l'Escluz Ostende in Flandres avec les Royaumes de vostre Majesté emporte soit l'Empire de la Grande Mer Oceane par consequent une asseurance Felicité perpetuelle pour les Subjects de vostre Serenissime Majesté John Stow Supplement to Holling shed An. Dom. 1585. Vide Sir Walter Raleigh lib. 5. cap. 2. §. 2 3. Enna aut malo aut necessario facinere retenta Livy lib. 24. * F. de Navibus non excus C. l. 11 tit 3. and Pekius on the same Law Quidni enim inquit Cicero quando scire detremento sue potest alteri communiâ—…t in iis quâ—… sunt accipienti utilia danta non molesta 1. de Offic. 1. * De expeditione Cyri. 10 Ed. m. 16. 12. * 23 Ed. 1. Rott 77. in the Exchequer 12 E. 3. in the Black-Book of the Admiralty p. 26 and 27. 6 Joh. m. 11. 9. Joh. m. 3. 24. Ed. 2. m. 17. 11 R. 2. m. 13. Rot. Franc. De Offic. Admiral Angliae per Roughton Artic. 10. The Black-Book of the Admiralty fo 28 29 157 158. 15. R. 2. c. 3. Cro. Arg. of Hampdens C. called the Ship money C. fo 79 to 100. Spelmanni Cnocil Tom. fo 520 521. Spelmanni fo 528 expeditio Navalis Rot. Scotiae 10 E. 3. m. 2. to 17. and then to 34. intus dors to 28. 1 Eliz. cap. 13. Vide Stat 16. 17 Car. I. c. 15. 2 3 P. M. C. 16. Vide Sir Henry Spelmans Gloss. in tit Admirâ—… Lambert Archeion tit Admiral fo 42. Exodus 21. 6. Inst. de Jure person §. servi autem Gell. l. 2. C. 7. Tacitus Co. 〈◊〉 Inflit. fo 358. 2 E. 1. Memb. 18. Rott Pat. 1 E. 1. m. 17. Ro. sin 31 E. 〈◊〉 num 44. Ro. pat 17 H 6. Ro. Cla. indors Vide the Case of Bates in Lanes Reports fo 4. Co. 6. part Case of Souldier Vide the 1. Institutes fo 71. And the Stat. of which provides punishment for those Watermen which shall hide themselves does evidence what the common Law was as to the right of pressing which certainly would never punish those whom they could not press †2 Aprilis 49 E. 3. in the Black-Book of the Admiralty 32 33 34 Art and fo 69. Art 10. The Black-Book of the Admir f. 17. Lamb. inter Leg. Edovardi f. 139. 13 Car. 2. cap. 9. †Non solis ducibâ—…s aliisque pâ—…tentibus innasci solet atque immorari bene agendi propositum sed cuique volenti licet honestum est ejus qua vivit Reâ—…publicae mali commoreri publicas utilitates pro suis viribus promoveri Vide Grotius l. 2. c. 20. †That is as to entitle him to Clergy and so it was ruled by all the Judges in B. R. M. 23 Car. 2. in the Case of one found specially at Surrey Assizes before Mr. Justice Twisden who slew the adulteror in the very act Vide August Civit. Dei citatum C quicunque causa 23 qu. 8. An. 25. Eliz. Co. Litt. f. 74. Code Justin. tit quando liceat unicuique It was in force in England till the beginning of the Reign of Edw. 3ds time Co. Inst 128. B. 13 H. 4. fo 4 5. 37 H. 6. fo 3. Jugurtha taken by his Father in Law Bocchus and delivered to the Romans Charles the 7th of France at a personal Treaty with Duke of Orleans 〈◊〉 slew the Duke though a Soveraign Prince Meyer l. 15. Phil. Comines lib. 4. c. 9 10. * As that between Edward the 4th and Lewis the 11th in the Territories of the Duke of Burgundy Vide Aemilius Paulus in History of France and Ferron his supply of the same of the Life of the Duke of Orleans afterwards Lewis 12th upon the failer of issue male of Charles the 8th Julius Ferretus de legatis Principium de 〈◊〉 side 〈◊〉 †The Leagues between the Crown of France and Spain are commonly between Kings and Kings Realm and Realm and Man and Man of their subjects and hath in time past been lookâ—… upon to be the firmest of Alliances Phil. Comines lib. 2. cap. 8. 9 E. 4. 2. a. The League then made with the Scots and likewise between Ed. 4th and the Duke of Burgundy Phil. Comin lib. 3. c. 6. * Rot. Pat. 4.