III. Though Pyrats are called enemies yet are they not properly so termed For he is an enemy saies Cicero who hath a Common-wealth a Court a Treasury consent and concord of Citizens and some way if occasion be of Peace and League and therefore a Company of Pyrats or Freebooters are not a Common-wealth though perhaps they may keep a kind of equallity among themselves without which no Company is able to consist and though it is seldom they are without fault yet hold society to maintain right and they do right to others if not in all things according to the Law of Nature which among many people is in part obliterated at least according to agreements made with many other Nations or according to Custom So the Greecks at what time it was accounted lawful to take spoil at Sea abstained from slaughter and populations and from stealing Oxen that plowed as the Scholiast upon Thucydides observes and other Nations living also upon the spoil when they were come home from Sea sent unto the Owners to redeem if they pleased at an equal rate what they were robbed of at Sea and at this day if a Ship hath the Emperor of Barbarys protection the Pyrats of that Nation if they seize will restore and if there be no protection yet if taken within sight of their Castles the Prize is not absolute but if resistance is made and there be a Caption she then becomes the Captors for ever as the price of blood IV. Pyrats and Robbers that make not a Society i. e. such a Society as the Laws of Nations accounts lawful are not to have any succour by the Law of Nations Tiberius when Tacfarinas had sent Legates to him he was displeased that both a Traytor and a Pyrat should use the manner of an Enemy as Tacitus hath it yet sometimes such Men Faith being given them obtain the right of Legation as the Fugitives in the Pyrenean Forrest and the Banditi at Naples and Solyman the Magnificent having entertained Barbarossa the famous Pyrat sent word to the Venetians that they should use him and esteem him no more as a Pyrat but one of their own Port. V. If a Ship is assaulted by a Pyrat for redemption of which the Master becomes a Slave to the Captors by the Law Maritime the Ship and lading are tacitly oblidged for his redemption by a general contribution But if a Pyrat shall feign himself stronded and to duccoy the Merchant Man for his releif shall fire his Guns or wave his Colours who accordingly varies his course for his assistance and the Pyrat enters him for redemption of which he becomes a Slave to the Pyrat there contribution shall not be made and if the Ship loses any of her lading the Master shall answer the same VI. A Pyrat attacques a Merchant Man and enters her for Redemption of which the Master gives his Oath at a time and place to pay the Pyrat a summe certain by some it hath been held that the Master commits not perjury if the price promised for redemption be not brought according to the Oath because that a Pyrat is not a determinate but a common Enemy of all with whom neither Faith nor Oath is to be kept but that is no reason for the assoiling of the vow for though the Person be deficient yet the Just God is concerned nor can that Person that hath promised a thing satisfy his conscience after he hath once delivered it to him to recover it back again for the words in an Oath as to God are to be understood most simply and with effect and therefore he that returned secretly to the Enemy and again departed made not good his Oath concerning his return VII If an English Man commit Pyracy be it upon the Subject of any Prince or Republique in amity with the Crown of England they are within the purview of the Stat. of 28 H. 8 and so it was held where one Winterson Smith and others had robbed a Ship of one Maturine Gantier belonging to Bourdeaux and bound from thence with French Wines for England and that the same was felony by the Law Maritime and the Parties were convicted of the same VIII And so it is if the Subject of any other Nation or Kingdom being in amity with the King of England commit Pyracy on the Ships or Goods of the English the same is felony and punishable by virtute of the Stat. and so it was adjudged where one Careless Captain of a French Man of War of about 40 Tuns and divers others did set upon four Merchant Men going from the Port of Bristoll to Carmarthen did rob them of about 1000 l. for which he and the rest were arraigned and found guilty of the Pyracy But before the Stat. of 25 Ed. 3. if the Subjects of a Forreign Nation and some English had joyned together and had committed Pyracy it had been Treason in the English and felony in the Forreigners And so it was said by Shard where a Norman being Commander of a Ship had together with some English committed robberies on the Sea being taken were arraigned and found guilty the Norman of felony and the English of treason who accordingly were drawn and hang'd But now at this day they both receive Judgement as felons by the Laws Maritime IX If the Subjects in enemity with the Crown of England be Sailers aboard an English Pyrat with other English and then a robbery is committed by them and afterwards are taken it is felony without controversy in the English but not in the Strangers for they cannot be tryed by virtue of the Commission upon the Statut for it was no pyracy in them but the deprdeation of an Enemy for which they shall receive a tryal by Martial Law and Judgement accordingly X. Pyracy committed by the Subjects of the French King or of any other Prince or Republique in amity with the Crown of England upon the British Seas are punishable properly by the Crown of England only for the Kings of the same have istud regimen dominium exclusive of the Kings of France and all other Princes and States whatsoever XI If Pyracy be committed on the Ocean and the Pyrats in the attempt there happen to be overcome the Captors are not oblidged to bring them to any Port but may exoppose them immediately to punishment by hanging them up at the main yard end before a departure for the old natural liberty remains in places where are no judgements And therefore at this day if a Ship shall be in on a Voyage to the West-Indies or on a Discovery of those parts of the unknown World and in her way be assaulted by a Pyrat but in the attempt overcomes the Pyrat by the Laws Maritime the Vessel is become the Captors and they may execute such Beasts of prey immediately withhout any solemnity of condemnation XII So likewise if a Ship shall be assaulted by Pyrats
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
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
yet it does not wholly remove the disease or non-ability as to the points of descent or hereditary transmission and resembles a Person in case of an Attainder and therefore if he purchases Lands and dyes without issue the Lord by Escheat shall have the Lands And therefore in lineal descents if there be a Grand-father natural born Subject Father an Alien Son natural Subject the Father is made Denizon he shall not inherit the Grand-father and if the Father dyes in the life of the Grand-father the Grand-child though born after the Denization shall not inherit the Grand-father for the Denization does not remove neither the personal nor the consequential impediment or incapacity of the Father So likewise in Collateral descents As for instance the Father a Natural born Subject has issue two Sons Aliens who are both made Denizens and one dyes the other shall not inherit him XII The like Law in Dower a Man seized of Lands in Fee and takes an Alien to Wife and then dyes the Wife shall not be endowed But if the King takes an Alien to Wife and dyes his Widdow Queen shall be endowed by the Law of the Crown Edmund Brother of King Edward the I. married the Queen of Navarre and dyed and it was resolved by all the Judges that she should be endowed of the third part of all the Lands whereof her Husband was seized in Fee A Jew born in England takes to Wife a Jew born also in England the Husband is converted to the Christian Faith purchaseth Lands and enfeoffeth another and dyeth the Wife brought a Writ of Dower and was barred of her Dower Quia vero contra justitiam est quod ipsa dotem petat vel habeat de temento quod fuit viri sui ex quo in conversione sua noluit cum eo adhaerere cum eo convert If an Alien be a Disseisor and obtains Letters of Denization and then the Disseisor release unto him the King shall not have the Land for the release hath altered the Estate and it is as it were a new purchase otherwise it is as if the Alien had been the feo ffee of the Deseissee And though Aliens are enabled by Charter of Denization to a transmission Hereditary to their posterity of Lands yet a Denizon is not capable of Honour nor a transmission of the same without Naturalization by Parliament for by the Charter of Denization he is made quasi seu tanquam ligens but to be a Member of Parliament he must be ligens revera non quasi for by his becoming a Noble-man he claims the place of Judicature in Parliament the which he cannot till naturalized by Act of Parliament and then he may claim as eligible to the same or any other CHAP. IV. Of Aliens and Crials per meditatem where allowed and where not I. Of the manner of Aliens obtaining Trials per medietatem at the Common-Law and of the Antiquity of the same II. Of the making the same a Law universal within this Realm as to some Persons afterwards general as to all III. Of the Writ and some Observations on the summons of such an Inquest IV. Of the opportunity lost or gained by praying this immunity V. Of the awarding of Tales upon request on such Enquiries VI. Where this immunity does not extend in Aliens and where it does in matters Civil and Criminal VII Of the validity of a witness Alien and of an Infidel VIII The tittle of a Renegadoe IX Of the benefit of the Kings Pardon whether it extends to an Alien whose abode is here but happens to be absent at the time of the promulging I. TRiatio Bilinguis or per medietatem linguae by the Common-Law was wont to be obtained by Grant of the King made to any Company of Strangers as to the Society of Lumbards or Almaignes or to any other Corporation or Company when any of them were impleaded the moyety of the Enquest should be of their own Tongue this Trial per medietatem in England is of great Antiquity for in some cases Trials per medietatem was before the Conquest Viri duodeni Jure Consulti sex Walliae totidem Anglis Wallis jus dicanto and as the Commentator observes it was called duodecem Virale Judicium II. This immunity afterwards being found commodious to us Islanders became universal for by the Statute of 27. E. 3. cap. 8. It was enacted that in Pleas before the Major of the Staple if both Parties were Strangers the Trial should be by Strangers but if one Party was a Stranger and the other a Denizon then the Trial should be per medietatem Linguae But this Statute extended but to a narrow compass viz. Only where both Parties were Merchants or Ministers of the Staple and Pleas before the Major of the Staple But afterwards in the 28th Year of the same Kings Reign it was enacted That all manner of Enquests which was to be taken or made amongst Aliens and Denizons be they Merchants or others as well before the Maior of the Staple as before any other Justices or Ministers Although the King be party the one half of the Enquest or proof shall be Denizens the other half Aliens if so many Aliens and Forreigners be in the Town or Place where such Enquest or proof is to be taken that be not Parties nor with the Parties in Contract in Plea or other quarrel whereof such Enquest or proof ought to be taken and if there be not so many Aliens then shall there be put in such Enquests or proofs as many Aliens as shall be found in the same Town or Places which be not thereto Parties as aforesaid is said and the remnant of Denizens which be good men and not suspicious to the one Party or other By which Statute the same Custom or immunity was made a Law universal although it be in the Case of the King for the Alien shall have his Trial per medietatem It matters not whether the moyety of Aliens be of the same Country as the Alien party to the action is for he may be a Dutch-man and they Spaniards French Walloons c. because the Statute speaks generally of Aliens III. The Form of the Venire facias in this case is De Nicenet c. quorum una medietas fit de Indigenis altera medietas fit de aliegenis natis c. And the Sheriff ought to return twelve Aliens and twelve Denizâ—…ns one by the other with Addition which of them are Aliens and so they are to be sworn but if this Order be not observed it is holpen as a misreturn It has been conceived of some that it is not proper to call it a Trial per medietatem Linguae because any Alien of any Tongue may serve but that surely is no Objection for People are distinguished by their Language and medietas Linguae is as much as to say half English and half of another
themselves without prejudice to their condition in this of Commerce the which would be more honourable unto them then to be Usurers and Bankers as in Italy or to impoverish themselves in doing nothing but spend and make consumption of their fortunes and never gathering or laying up II. Hence will grow many advantages both to the publique and private To the publique for that they that should deal in Commerce having means courage and sufficiency for this conduct it would be far greater in the furnishing more Ships to Sea and better armed the which the Estate at need might make use of for the safety of the Publick and would add to the reputation of the Nation in all parts they knowing that an indignity or dammage offered to such would require satisfaction with a strong and powerful hand the which they cannot do who being poor and having but small stocks or what they borrow from Banckers or are indebted for the Cargoe which they send forth have not the courage to hazard themselves and their all in an enterprize that is great Besides such who have honour riches and courage would keep up the reputation of their several Commodities by the not lessening the Market the which the poorer sort to pay Customes Freight Bills of Exchange and other contingent and necessary charges which accompanies the importing they are often forced to mortgage the Cargoe to the Bankers at excessive usury or else to sell for ready money for an inconsiderable gain nay some rather then their wants to be known for ready money will sell for loss all which would be prevented if such Persons of value would apply themselves to a prudent management of the same for whatsoever hazard they run there would be more gotten by such in 2. voyages then the smaller sort in three or four Voyages and by that means it would be the occasion of preventing of many expenses or importuning their Prince with demands nay perhaps they might get more at Sea in one year then in ten at Court Besides experience hath taught and doth daily manifest that where the richest have dealt in this of Commerce it hath enriched both them and the Estate under which they lived and at this day the Examples of the Venetians Portugals Spaniards and Hollanders have made it known unto us III. The consideration of which first gave light to that industruous Nation the Burgundians to procure the Association or Incorporation by John Duke of Brabant of that Ancient Company of the Adventurers Anno 1248 which were then called the Brotherhood of Saint Thomas Becket of Canterbury which being afterwards translated into England was by Edward the III. confirmed and by his Successors Henry the IV. Henry V. Ed. IV. Henry VI. Richard III. and King Henry the Seventh who gave them the name of Merchant Adventurers and from him successively hath their Charter been confirmed down to his sacred Majesty that now is and as this Society is of Ancient estimation so is their Government very commendable IV. The Society of the Company trading to the East-Indies differ from others both as in reference to Persons Members which are at this day many of the principal Nobility of Engalnd as also for that their Adventurers run all into many stocks and is governed and carried all jointly upon benefit and loss they were incorporate Anno 1599. and since then they surrendred their Charter and accepted a new one and are incorporated by the name of Governour and Company trading to the East-Indies their Adventurers run all into one Stock and is governed and carried on upon benefit and loss the same being at this day according to the subscriptions about four hundred thousand Pounds which the several Persons Subscribers may sell transfer and dispose of but they can no wayes take out the same The great Stock may be encreased if the Company shall see occasion so to permit but they are very cautious of the same for that the greater the dividends the more reputation the Stock bears which above all things is to be maintained however directly upon his own account no Person can have above ten thousand Pounds Stock there nor can he have a compleat title till he is made a Free-man of that Society their returns are very profitable and of late very rich and have wany Places of great importance in India as Meslopotam on the Coast of Cormondel Bombay Suratt Fort St. George Bantam c. V. The Dutch having found relief in their distress from the British shoar against their powerful Enemy found also a pattern to carry on Commerce they not being wanting in the imitating the Incorporation of a Company trading to those Places which they possess'd in the East-Indies and therefore in the Year 1602. leave was granted from the Estates to Traffique into those Parts before all others during the space of one and twenty years the which was granted them in consideration of five and twenty thousand Florens which they promised to pay to the Estates during the first ten years thus reduced all into into one Company Amsterdam had one moyety Midleburgh in Zealand a fourth part Delph Rotterdam Horne and Enchusen had either of them a sixth part and the whole Stock of this Union amounted to six millions of Livers or six hundred thousand pound Sterling For the direction of this Trade and the interests of the Associates they have established in either of those Towns a certain number of Administrators at Amsterdam twenty at Midleburgh twelve in either of the rest seven and if any one dyes the Chamber of the Place names three of which either the Estates General or the Magistrate of the Town chooseth one Those Chambers choose Seventeen among the Administrators that is to say Amsterdam eight Middleburgh four Delph and Rotterdam two Horne and Enchusen two and the Seventeen are chosen alternatively sometimes at Midleburgh sometimes at North-Holland the which are called together to resolve jointly of how many Ships and of what Equipage and Furniture they shall make the Fleet which they mean to send and to what Fort or Coast they should go This Assembly is held six years together at Amsterdam and afterwardr two years at Midleburgh and then again at Amsterdam by the Conditions of the accord the Ships must return to the same Port from which they parted and the Spices which are left at Midleburgh and other Chambers is distributed amongst them by the weight of Amsterdam and the Chamber which hath sold her Spices may buy from other Chambers By this Order they have hitherto continued this Commerce with reputation not as simple Merchants only but as if they were Soveraigns they have made in the Names of the Estates Alliances with many of the Princes of those parts as with the Kings of Sian Quadoen Patam Johor the Heir of Mataca Bornean Achin Sinnatra Baretan Jocotra and other Kings of Jatta they have made themselves absolute Masters of the Island of Amboina but by what means Where they have a
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
ought not to be done by Nations in Amity 1. 1. 9 Restitution of the overplus the debt and damages satisfied 1. 2. 22 Restitution only to be made in that Country whither the Vessel is carried 1 4. 14 Scavage WHat and for what due 2. 14. 1 Sea Princes may have an Exclusive Property in the same 1. 5. 11 It is a common High-way and such as are born on the same not Aliens 1. 5. 13 Princes may have an exclusive property in the same 1. 5. 2 Subject to protection and to be divided amongst men 1. 5. 4 5 Sea inseparably appendant to the Kingdom of England 1. 5. 13 Not without protection 1. 5. 6 The British Sea the Dominion vindicated by King Edgar and others 1. 5. 7 British Sea is the 4. Seas 1. 5. 18 Kings of England have istum Regimen exclusivè of the Kings of France 1. 5. 11 The importanee of the same to the Crown of England 1. 5. 14 The British Sea ever belonged to the Empire of this Isle 1. 15. 2 The Extent thereof and the King of England's Right on the same how far agreed by the Dutch Treaty 1. 15. 3 Servitude or Slavery Brought in by the Lawes of Nationt 3. 1. 1 Those that continue in that state can have nothing of their own 3. 1. 2 Children are Slaves and the Reasons that fiâ—… introduced that Dominion 3. 1. 4 Refuge was granted by the Jewes to such 3. 1. 5 Slavery become obsolete in Christendome 3. 1. 6 Servitude in some respects may stand at this day 3. 1. 7 A Slave might be imprisoned at the will of his Lord 3. 1. 9 Sheriff May sell bona peritura of Shipwrackt Goods 2. 5. 8 Ships In necessity may take Goods from another by force of Arms 1. 4. 18 Ships gain'd by an Enemy in Battail and regain'd where the property is lost 1. 1. 7 Ships of Warr retaking a Prize from an Enemy restitution of the same where made ibid. Fire Ships not subject to Quarter 1. 14. 12 Ships where subject to an Embargo by the Laws of Enemies 1. 1. 11 Ships of Friends freighted with the Goods of Enemies 1. 1. 12 Ships taken by Letters of Marque ought to be carried infra presidia of that Prince or State by whose Subject the same were taken 1. 2. 19 Ships taken by a lawful Commission but the property not being changed by the Lawes of Nations the persons may be questioned Civiliter but not Criminaliter 1. 1. 4. Ships may be Pressed for Publique Service 1. 6. 1 4 Though the Vessels of another Prince in Amity be they private or publique 1. 6. 2 4 Ships Pressed ought not to be imployed but on publique occasions 1. 6. 3 The punishment of those that shall break the Arrest 1. 6. 4 Newly built ought to make one Voyage before the Owners can part 2. 1. 3 King of England's Ships are not to strike to any Ship whatsoever generally and when out of Courtesie they may 1. 15. 6 Are to Salute Castles and Ports of Strangers and how the same is regulated 1. 15. 7 The Commanders of them are not to Salute their Admiral or Commander in Chief after they have done it once 1. 15. 9 Second Rate Ships when they are to Salute Noble-men coming aboard 1. 15. 9 Their Duties in Salutations 1. 15. 9 10 11 Ship taken in pieces and rebuilt is another Ship but if ript up only to the Keel otherwise 2. 1. 6 Ship repaired with another mans Plank who are the Owners 2. 1. 7 By the Sale of the Ship with all her Apparel and Instruments thereto belonging the Ship Boat passes not 2. 1. 8 May be Mortgaged in time of necessity 2. 2. 14 The various way of Freighting them 2. 4. 1 Perishes the Freight vanishes 2. 4. 13 Ships Encountring each other how the damage is to be settled 2. 9. 7 Not having two Decks and 16 Guns are to pay one per-Cent over and above the Book of Rates 2. 13. 3 Burning any of his Majesties Ships the party to be punished with death 1. 14. The Kings Ships and their Provisions not to be imbezelled uâ—…r they by negligence or wilfulness destroyed 1. 14. 24 The French Ships are to pay 10 s. for every Passenger that shall passe in or out of this Kingdome 2. 13. 1 Societies They make but one Body and are to make but one single Entry of their Goods 2. 13. 13 Where their debt obliges each Member and where not 1. 2. 2 3 A Bill accepted by one binds not the rest though it may the party acceptor 2. 10. 19 Superiours not responsible to Inferiours by the Lawes of Nations 1. 4. 18 Spies Lawful by the Lawes of Nations how used if catch't 1. 14. 21 1. 13. 6 Ships in that Service not obliged to Fight 1. 13. 7 Spoyl Goods may be as well spoyled as taken 1. 1. 15 Spoliatico the difference between that and Legalis Captio 1. 1. 9 The Spoyl or Prize is to be equally divided as well to those Ships that are present as those that attaque and enter 1. 2. 10 States May execute the Judgments of each other 3. ult 8 But not in cases of Life or Honour 3. ult 9 Subjects Share in the Indignity offered to their Prince 1. 15. 16 Subsidy On what it issues out 2. 12. 8 How the same is governed upon Woollen Cloaths 2. 12. 11 Care WHen to be allowed and for what 2. 13. 14 Traytors It is lawful to make use of a Traytor but not to make one 1. 14. 20 Treason in an Alien is to be tryed by the course of the Common-Law and not per medietatem 3. 4. 5 Treason out of the Realm may be tryed within the Realm 3. 4. 7 Treason Is subject to be punished every where 1. 11. 2 They are to be delivered up 1. 11. 4 If Treason in killing an Ambassadour Creaties Of Truce for years settles a Peace and preserves the Honour of each party 1. 9. 3 Less subject to a Rupture then a Peace 1. 9. 4 Breaches of Truces how punishable 1. 9. 5 Tribute It is lawful to pay Tribute to Caesar what is meant by the same 1. 12. 2 Vide Customes Tiumphs Their Antiquity Use and Advantage 1. 14. 29 Trust. A Stock in a Company is a Trust and is governed accordingly 2. 11. 6 Tryals Tryal of Warr must be by the Records of Courts and not Juries 1. 1. 6 Tryals per medietatem their Antiquity 3. 4. 1 It matters not of what Tongue so the moyety are Aliens 3. 4. 3 If both parties are Aliens then all are to be Natural born Subjects ibid. May pray Venire facias as well after the awarding the Venire as before 3. 4. 4 Vacancy GIves a Right to plant 3. 5. 2 Civil vacancy what is meant by the same 3. 5. 3 Victuals Failing a Shipboard what every one hath a Shipboard may be brought forth 1. 1. 4 Voyage Voyage when the same begins 2. 7. 10 Trading Voyage but one Voyage 2. 4.
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
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
yet as in reference to the Maritime Dominion Henry 8th did embellish his Navy Royal therewith and Queen Elizabeth stamped it upon those Dollars which she designed for the East India Trade signifying her Power of shutting up the Seas if she thought fit as by a Port-cullis with the Navy Royal this Dominion of the British Seas did Authenticate the Proclamation of King James ordaining the Flemish at London and Edinborough to take licence to Fish this justified the like Proclamation by the late Royal Martyr King Charles and warranted by the Earl of Northumberland in his Naval Expedition That Prescription is valid against the claims of Soveraign Princes cannot be deny'd by any who regard the Holy Scripture reason the practise and tranquillity of the World and that true it is the modern Dutch have pretended if not dared to challenge the Freedom to Fish in the British Seas by Prescription but it is likewise as true that Prescription depends not upon the Corporeal but the Civil possession and that is retained if claim be but made so often as to barr the Prescription the which hath been alwaies made evident first by frequent Medals next by punishing those that refused it as Rebels by guarding it of it and lastly by giving Laws time out of mind on it which evidently proves that the Civil possession is not relinquished our Kings constantly claiming the Dominion of the same none else pretending all Nations acknowledging it to be in them and the same never questioned till those modern Dutch of yesterday arose XIV The importance of the Dominion of the Sea unto this Nation is very great for alone on that depends our Security our Wealth our Glory from hence it is that England hath a Right to all those advantages and emoluments which the Venetian Republique draws from the Adriatique Sea where the Ships of the Grand Seignior of the Emperor King of Spain and Pope pay Customs to maintain those Fleets which give Laws to them within the Gulfe 't is hereby that the English can shut up or open these Seas for Ships or Fleets to pass or repass them whereto Queen Elizabeth had so special a regard that when the King of Denmark and the Hansiatique Towns sollicited her Majesty to permit them free passage they transporting Corn into Spain she refused them and when a Protestant Fleet of Hamburgers and others had presumed to do so notwithstanding her prohibition she caused her Navy Royal to seize take burn and spoil them when they were passed her Maritime Territory within sight of Lisbon yielding this reason for her justification that they not only relieved her Enemy with provisions but had presumptuously made use of her Seas without obtaining her Royal Permission for so doing 't is from hence that the Crown of England can justly demand an account of any Ship or Ships occurring in those Seas what 's their Business and what their intentions are and prohibite any Prince or Reipublique to enter there with potent Fleets without praeacquainting his Majesty and obtaining his Royal Permission without which Dominion and Soveraignty England can never live secure on shore it being easy for any Forreign Fleets to amuse us with specious pretenses and in their passage to invade and surprise us Thus whilst the Turk pretended to sail for Malta he occasionally possessed himself of Canea in the Isle of Candia many such presidents do occur in History And in fear of such surprizal the Athenians being Lords at Sea did exclude the Persian Monarchs from sending any Ships of War into any part of the Aegean Sea Rhodian Carpathian and Lydian Seas and that which tends to the West towards Athens the like caution was used by the Romans against Antiochus and the Carthaginians and the Turk prohibits all Nations saving his Vassals to enter the Black Sea or Pontus Euxinus and also the Red Sea and that 't is by virtue and force of this right that the British Nation can drive on their own Commerce navigate themselves and permit others securely to trade with them 't is true that the Dutch have presumed some years since to violate the security of the British Seas by the attacking the Allies of England not only within the British Seas but in her Harbours attempting to pursue a French Vessel up almost to London and have more then once attacqued the Spanish Fleets in her Ports under the protection of her Castles and that against the Laws of Nations and the Peace of Ports in which for the time they seemed to cloud the Honour of the Nation but satisfaction for indignities of that nature though slow yet are sure and should such as those have been longer tollerated Beloved Britannia must become a prostitute by a Confederation of those States or take Pass-ports for her Commerce But the Royal Martyrs goodness was no longer to be trod on his Heart and his Cause were good and though those unhappy times which were crooked to whatsoever seem'd straight did hinder the accomplshiments of his entire intention for satisfaction yet those whom the just God of Heaven was pleased for a time to permit as a punishment to this Nation to rule did not want in the fulfilling for so soon as he was pleased to stay the fury of the Intestine Sword their hearts took fire from that flame that had formerly been kindled in that Royal Brest and having prepared a Fleet in order to the treating as Souldiers with Swords in their hands they were in the like manner assaulted in their Territories in the Downes but the Dutch found then what it was though two for one to assault a British Lyon at the mouth of his Den intending if possible to have destroyed the English Power but were frustrated in their design being severely beaten home to their own dooâ—…â—…d afterwards those that then had got the English â—…d in their hands begun to consider that the Victâ—…y â—…ust be pursued as a season fit to assert their Antienâ—…â—…ight and Soveraignty of the Sea and then those people thinking that the odds before was not enough to destroy the Briâ—… Fleet they equipt out a Fleet greater and far more numerous then the English under the Admirals Van Trump De Witt the two Evertsons and Ruyter but they suffered the same fate as their former about some 34 of their Ships on the Coast of Flanders burnt and taken and the rest chased home to their Ports and not long after followed the total defeat of their Naval forces accompanied with the death of Van Trump by the English under the Admirals Blake and Monk who had sunk and fired about 30 more of their Ships of War no quarter being given till the end of the Bataill six Captains and about a thousand Men were taken prisoners and about six thousand slain of their Presomptions since amongst other things in denying the duty of the Flagg and of what punishment and check they have had for
time or in any place been formerly practised towards any Ships of his Majesty of Great Britain or his Predecessors by any Ships of the States General or their Predecessors IV. Now his Majesty holds not this Salutation or Respect by virtue of the League or of the Article but as the same is a Right inherent to the Empire of Great Britain and therefore in the first part of the Article it is declared in these words That the aforesaid States General of the Unithed Provinees in due acknowledoment on their part of the King of Great Britain ' s RIGHT to have his Flagg respected in the Seas hereafter mentioned shall and do declare and agree Now this Right extends and subjects all Nations whatsoever that shall pass through those Seas and between those places meeting with any of his Majesty's Ships of War bearing his Flagg Jack or Cognizance of Service to strike their Top-sail and take in their Flagg in acknowledgement of His Majesty's Soveraignty in those Seas and if any shall refuse to do it oroffer to resist they may be compelled vis manu forti for his Majesty's Honour is by no means to receive the least diminition V. If therefore any of his Majesty's Subjects should be so negligent or forgetful to pay that obeissance when it may be done without losse of the Voyage they are to be seized on and brought to the Flagg to answer the contempt or else the Commander may remit the Name of the Ship Commander or Master as also the place from whence and the Port to which she shall be bound to the Admiral however before she is dismist she must pay the charge of the shot that her negligence or forgetfulness occasioned and afterwards may be indicted for the same and severely punished VI. In His Majesty's Seas none of his Ships of War are to strike to any and that in no other part no Ship of His Majesty is to strike her Flagg or Top-sail to any Forraigner unless such forraign Ship shall have first struck or at the same time have strike her Flagg or Top-sail to his Majesty's Ships VII But if any of the King of Englands Ships of War shall enter into the Harbour of any Forraign Prince or Sate or into the râ—…ade within shot of Canon of some Fort or Castle yet such respect must be pay'd as is usually there expected and then the Commander is to send a shore to inform himself what return they will make to this Salute and that if he hath received good assurance that his Majesty's Ships shall be answer'd Gun for Gun the Port is to be saluted as is usuall but without assurance of being answered by an equal number of Guns the Port is not to be saluted And yet in that very respect before the Port is to be saluted the Captain ought to inform himself how Flaggs of the same quality with that he carrys of other Princes have been saluted there the which is peremptorily to be insisted on to be saluted with as great respect and advantage as any Flagg of the same quality with the Captains of any other Prince hath been saluted in that Place VIII A Captain of a Ship of the second rate being neither Admirall Vice-Admiral nor Reer-Admiral at his first coming and saluting his Admiral or Commander in chief is to give 11 Pieces his Vice-Admiral nine and his Reer-Admiral seven and the other proportionably less by two according to their Rancks but the Commander or Captain of a Ship is not to salute his Admiral or Commander in chief after he hath done it once except he hath been absent from the Flagg two Months XI When a Ship of the second rate shall carry any Ambassador Duke or Nobleman at his coming aboard he is to give eleven Pieces and at his landing fifteen and when he shall carry a Knight Lady or Gentleman of Quality at their coming aboard he is to give seven and at the landing eleven and the other Ships are to give less by two according to their Rancks and number of Ordinance X. When an Admiral of any forraign Nation is met with he is to be answered with the like number by all the Ships he shall salute if a Vice-Admiral the Admiral is to answer him with twelve less but the Vice-Admiral and Reer-Admiral and as many of the rest as he shall salute shall give him the like number if a Reer-Admiral then the Admiral and Vice-Admiral to answer him with two less but if he shall salute the Reer-Admiral or any other they are to answer him in the like number XI When a Man of War or Merchant-Man of another Nation or of our own salute any of the King's Ships he is to be answer'd by two less XII When any of the Captains of his Majesty's Ships shall have occasion to salute any of the King's Castles he is to give two Guns less then they are directed to give upon saluting their Admiral or Commander in chief as aforesaid But this extends only in time of Peace for if War is begun no Guns ought to be fired in Salutes unless to the Ships or Castles of some forraign Prince or State in Amity XIII Those duties or obligations being laid on Commanders they consist of two parts the one is that antient prescription which the Crown of England claims by virtue of the Soveraignty of that Empire the other is but that respect which is pay'd as visible marks of Honour and Esteem either to Kingdoms or Persons publique or private to whom these several Commands are to be observed and yet in these which are both innocent and harmless of themselves yet we wont not those who being empty of all that may be called good want not malice to start up words wherefore should the lives of Men even Christian Men be exposed to death and slaughter for shaddows as they call them the right of salutation or Complement being no other in their opinion XIV Admitting therefore that the evidence of original Compacts and Rights stand at such remote distances from us that they are hardly discernable and that the principal of Civil things as well as Natural is sought for in a Chaos or confusion so that the evidence of antient facts vestigia nulla retrorsum there being no infallible markes of their preexistence one step doth so confound and obliterate another and that time it self is but an imagination of our own and intentional not a reall measure for actions which pass away concomitantly with that measure of time in which they were done for which reason we talk of antient things but as blind Men do of Colours Notwithstanding prescription is supposed by most to hold out such an evidence that as they say it ought to silence all Counterpleas in all Tribunals and by the present allowance which is indulged to it it either proves a good or cleans a vitiated title and this Prerogative in the Civil constitution of the World hath this Power in the Civil constitution
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
tongue or Nation whatsoever nor matters it of what sufficiency the Jurors are for the form of the venire facias shall not be altered but the clause of quorum quolibet habeat 4. c. shall be in If both parties are Aliens then the Inquest shall be all English for though the English may be supposed to favour themselves more then Strangers yet when both Parties are Aliens it will be presumed they will favour both alike without any difference IV. If an Alien is party who slips his opportunity and suffers a Trial by all English the same is not a Verdict Erroneous for if he will be so negligent as to slip that advantage which the Law gives him it is his fault for the Alien if he will have the benefit of that Law he must then pray a venire facias per meditatem Linguae at the time of the awarding the venire facias But if a neglect of that opportunity happens yet if he prays it after the awarding a general venire facias the same may be retreeved so as it be before the venire be returned and filed for then he may have a venire facias de novo or otherwise he cannot nor can he afterwards challenge the Array for this cause if it falls out the Juries are all Denizens though Sandford seems to be of a contrary opinion for the Alien must pray it at his peril V. If there be a general venire facias the Defendant cannot pray a decem Tales c. per medietatem Linguae upon this because the Tales ought to pursue the venire facias But if the venire facias be per medietatem Linguae the Tales ought to be per medietatem Linguae as if five Aliens and five Denizens appear on the principal Jury the Plaintif may have a Tales per medietatem but if the Tales be general de Circumstantibus it hath been held good enough for there being no exception taken by the Defendant upon the awarding thereof it shall be intended well awarded If an Alien that lives here under the protection of the King of England and Amity being between both Kings commits Treason he shall by force of the Act of 1. and 2. Ph. and Mary be tryed according to the due course of the Common Law and shall not in that case be tryed per medietatem Linguae But in case of Petit Treason Murder Fellony c. if he prays his Trial per medietatem Linguae the Court ought to grant it Yet if an Information be exhibited against an Alien the Trial is not per medietatem but according to the Common-Law If an Alien in League brings an action if there be cause the Defendant may plead in abatement but if it be an Alien Enemy he may conclude in the action In an action for words the Defendant pleaded not guilty and said he was an Alien born and prayed Trial per medietatem Linguae which was granted and at the nisi prius in London but six English-men and five Aliens appeared and the Plaintif prayed a Tales de Circumstantibus per medietatem Linguae and it was granted so there wanted one Alien and the Record was Ideo Alius Aliegena de Circumstantibus per vic' London ad requisitionem infra nominati Julii Caesaris per mandato Justiciarum de novo apposito cujus nomen panelo praedict ' affilatur secundum formam Statuti in hujusmodi casu nuper editi provise qui quidem Jurato sic de novo appositus viz. Christianus Dethick Alienigena exactus venit ac in Juratam illam simul cum aliis Juratoribus praedicta prius impanellatis Juratis Juratus fuit c. It was found for the Plaintiff and afterwards moved in Arrest of Judgment That no Tales was to be granted de Circumstantibus when the Trial is per medietatem Linguae by the Justices of Nisi prius by the Act of 35 H. 8. because in the Act it is spoken of Free-hold of Jurors and an Alien is not properly said of any Countrey or to have any Free-hold but it was adjudged because the Statute was made for speedy execution that it should be expounded favorably according to the intent and meaning of the Makers of the Act and though in this case the Tales was prayed by the Plaintiff where it ought to have been ad requisitionem defendentis yet that should be taken to be but a misprision and would be amended VI. If the Plaintiff or Defendant be Executor or Administrator though he be an Alien yet the Trial shall be by English because he sueth in Auter droit but if it be averred that the Testator or Intestate was an Alien then it shall be per medietatem Linguae Shely a French man who joyned with Stafford in the Rebellion in the taking of Scarborough Castle in the County of York he being taken was arraigned in the Kings Bench upon an Indictment of Treason and the Indictment was contra legiantiam suam debitam and the Indictment was rul'd to be good although he was no Subject because it was in the time of Peace between the Queen and the French King But if it had been in the time of War then the Party should not have been indicted but ransomed It was likewise rul'd there that the Trial was good although the Venire facias awarded in York was general and not de medietatem Linguae for such Trial per medietatem Linguae does not extend to Treasons 4. Ma. Dyer 145. the Indictment ought to omit the words Naturalem Dominam suam and begin that he intended Treason contra Dominam Reginam c. Hill 36. Eliz. in B. R. Stephano Ferraro d'Games case in Dr. Lopez Treason If an Alien Enemy come into this Realm and be taken in War he cannot be indicted of Treason for the Indictment cannot conclude contra legianeiae suae debitum for he never was in the protection of the King and therefore he shall suffer death by Marshal Law and so it was rul'd in 13 H 7. in Perkin Warbecks case who being an Alien born in Flanders feigned himself to be one of the Sons of King Edward the 4th and invaded the Realm with intent to take upon him the Dignity who had his Judgment and Trial by Martial Law and not by the Common-Law of England VII The Kingdom of Ireland was a Dominion separated and divided from England at the first and came to the Crown of England by Conquest in the time of Henry the Second and the meer Irish were as Aliens Enemies to to the Crown of England and were disabled to bring any action and were out of the protection of the Laws of this Realm and five Scepts of the Irish Nation were only enabled to the Laws of England viz. Oneil de Ultonia O Molloghlin de Media O Connoghor de Connacia O Brian de Tholmonio and Ma Murogh de Lagenia as appears by the Records
wandring Angel these steal even the Ship-wrack'd mans picture from him which as his whole inheritance he carried at his back to move compassion and by the insatiable Sea of their Avarice and Luxury they wreck him over at Land IX But this free Primitive Communion had and hath its bounds and its quantum in Contributions as well as the natural otherwise it might be fraudulent and thieving For they who possess but a little would contribute it all on purpose to share equally with those who possess very much which would introduce a visible decay and ruin in all as Tiberius rightly observed on M. Hortalus his petitioning an Alms for Augustus Caesar's sake Idleness would encrease and industry languish if men should entertain no hope nor fear for themselves but securely expect other mens relief idle to themselves and burthensom to us Wherefore in the midst of that primitive Communion we find that the Apostles went Domatim from house to house breaking of bread therefore they even then retained by their houses in property which property is supposed by the eighth Commandment as well as it is by Christian Charity For no man can steal but by invading the right of another and as for Charity it is necessary he have something of his own to be able to fulfil its commands and to make a dole at his door and it is very convenient that he give it rather with his own hand then by some publique Collectors For Charity is hated most with the sence of its own action Moreover under the Law Jews were commanded to love one another as themselves yet this Command took not away property then therefore it takes it not away now notwithstanding we own the use or usufruct of our properties to the distressed though our selves be at the same time in distress just as we are commanded by the peril of our own lives to endeavour to secure our Neighbours life which is yet a Charity more transcendent then the other by how much life is above livelyhood And though the various Laws of Countreys have variously provided punishment for those who out of meer necessity take something out of anothers plenty yet that proves not the Act to be sin or repugnant to equity or conscience but rather repugnant to the conveniency of that Kingdom or Republique where the Act is committed and the true reason of the same is least thereby a gap might be laid upon to Libertinism besides Reason of State we know considers not vertue so much as publick quiet and conveniency or that right which is ad alterum X. We will now consider those things which are Gods which yet are not his in such a strict rigorous sence but that they lye open to the exceptions of our just necessities hence that which is devoted as a Sacrifice to him in case of necessity may be made our dinner witness the Action of David Wherefore the consequence of our Saviours answer was very strong when he defended his pulling the Eares of Corn in anothers Field That if it was lawful for David in his necessity to eat that Bread which was provided for the Table of God then how much more was it lawful for him and his Apostles in their necessities to take a refreshing out of that which belonged to Man by the Canon Law if no other means can be found the Vessels of the Altar may be sold to redeem those Souls who are enthralled in misery and captivity and is there not good reason for it seeing they serve but for the Souls of Men and therefore the Souls of Men are more precious then they Yea the Sacrifice it self to what end is it but to obtain a state of piety for us Upon what hath been said it may not seem an injury if a Planter wanting those things for the support of humane life requesting a reasonable proportion of his Neighbour having it to spare with an intention to repay if denyed by force take the same from him for that reason which creates a punishment in a settled Common-wealth for the like actions does in such places fail CHAP. VI. Of Merchants I. Merchandizing the same is honourable and proffitable both to Prince and State II. The Advantages that might accrue to Kingdoms iâ—… the more Nobler and Richer sort applyed themselves to the same III Of the first Institution of the Company of Adventurers IV. Of the â—…stitution of that in England to the Indies V. Of the forming of that in Holland to these parts VI. Of the forming the like by the Most Christian King to the same parts VII Of the advantages and disadvantages considered as in reference to reducing them to Companies VIII How Merchants in England were provided for of old IX Of their immunities settled by Magna Charta X. Of Merchants Strangers whose Prince is in War with the Crown of England how to be used in time of War and the reasons why Merchants Strangers ought to be used fairly XI Goods brought in by them the Moneys raised how to be disposed according to the Statute of Imployment XII Merchant Strangers made Denizons by Parliaments or Letters Patents to pay as before they were so made XIII What things requisite that makes a Competent Merchant according to Law XIV One Merchant may have an Account against his Partner and if he dyes no survivorship to be of the Estate belonging or acquired in their Traffique XV. Of their Immunities which they claim by the Custom of Merchants in reference to Exchange XVI All Subjects are restrained to depart the Realm but Merchants XVII Prohibitory Laws bind Forraigners according to the Leagues of Nations XVIII The necessity and advantage that is incumbent on Merchants to preserve their marks I. THere are certain affairs which should be left to the poor and Common People to enrich them but there are others which they only can execute which are rich as that at Sea by way of Merchandizing which is the most profitablest in an Estate and to the which they should attribute more honour then some do here at this day For if in all Estates they have thought it fitting to invite the Subjects by honour to the most painful and dangerous actions the which might be profitable to the Publick this being of that quality they should attribute more honours to those that deal in it And if Nobility hath taken its foundation from the courage of Men and from their valour there is certainly no vocation in the which there is so much required as in this they are not only to encounter and strive amongst Men but sometimes against the four Elements together which is the strongest proof that can be of the Resolution of Man This hath been the occasion that some have been of opinion that they should open this door to Merchants to attain to Nobility so as the Father and Son hath continued in the same Trade and to suffer Noble Men who are commonly the richest in an Estate to practise
President which governs in their name at Banda they have a Fort for a retreat where they must deliver them the Spices at a certain price in Trinate they have another a mile distant of that of the Portugales at Magniene they have three at Motire one at Gilele they have taken that which the Portugales have built and indeed whatsoever either can or may consist with their interest in those parts they have engrossed and by that means almost the Trade of the whole Spices of the East VI. So likewise the Most Christian King hath within few years established such another Trading to those Eastern Parts And in England we have several others as that of trading to Turkey that of Affrica to Guiny and several others dividing the several Trades according to the Coasts and Places where they are appointed forbidding them to intrench or incroach on each other so likewise to all other his Majesties Subjects on severe penalties VII Now it is not the dividing of the Trade into Companies that can answer the expectation but it is the dividing the Trade into Companies where the Places may bear it as that to the Indies Turkey Hambourough and some others But to some others as the Canaries France or any of those Places on this side the Line it has been conceived the Trade will not bear it but the same would be better distributed either into the Trade of voluntary Associations or single Traders others perhaps would result into Monopolies if incorporated however the Standard rule is to know whether the Trade of the Place will bear a Company or not VIII Merchants in England were alwayes favourably provided for by the Common Law of this Kingdom By the Ancient Laws of King Alfred it was provided Defer due fuit que nul Merchant Alien ne hantaâ—…t Angleterre forsque aur quater Foires ne que nul demeurast in la terre outer quarante Iours Mercatorum navigia vel inimicorum quidem quaecunque ex alto nullis jactata tempestatibus in portum aliquem invehentur tranquilla pace fruuntor quin etiam si maris acta fluctibus ad domicilium aliquod illustre ac pacis beneficio donatum navis appulerit inimica atque istuc nautae confugerint ipsi res illorum omnes angusta pace potiuntor IX Again by the Grand Charter of our Liberties they are provided for in these words Omnes Mercatores nisi publice antea prohibiti fuerint habeant salvum securum conductum exire de Anglia venire in Angliam morari ire per Angliam tam per terram quam per aquam ad emendum vel vendendum sine omnibus malis tolentis per antiquas rectas consuetudines praeterquam in tempore guerrae Et sint de terra contra nos guerrina tales inveniantur in terra nostra in principio guerrae attachiantur sine damno corporum suorum vel rerum donec sciatur a nobis vel a Capitali Justitiario nostro quomodo Mercatores terrae nostrae tractantur qui nunc inveniantur in terra illa contra nos guerrina Et si nostri salvi sint ibi alii salvi sint in terra nostra 1. By which it is declared that all Merchant Strangers might be publiquely prohibited to Trade into this Realm be they in Amity or otherwise 2. All Merchant Strangers in Amity except such as be so publiquely prohibited shall have safe and sure conduct in seven things 1. To depart out of England 2. To come into 3. To tarry in 4. By Water and Land to go in and thorough 5. To buy and sell  6. Without any manner of evils Tolls  7. By old and rightful Customs  X. But concerning such Merchant Strangers whose Prince is in War with the Crown of England if they are found within the Realm at the beginning of the War they shall be attached with a Priviledge and limitation i. e. without harm of Body or Goods with this limitation until it be known to the King or his Chief Justice how Merchants of England are used and intreated in their Countrey and accordingly they shall be used in England the same being jus Beli. But for Merchant Strangers that come into the Realm after War begun they may be dealt withal as open Enemies It being the Pollicy of England ever to entertain Merchant Strangers fairly in the 18. year of Ed. 1. in the Parliament Roll it is contained thus Cives London peâ—…unt quod alienigenae Mercatores expellantur a Civitate quia dicantur ad depauperationem Civium c. Responsio Rex intendit quod Mercatores extranei sunt idonei utiles magnatibus c. non habet Concilium cos expellendi However though great Immunities were granted them yet they alwayes found Sureties that they should not carry out the Merchandize which they brought in XI And at this day if they bring in any Merchandize into the Realm and sell the same for Moneys they are to bestow the same upon other Merchandizes of England without carrying of any Gold or Silver in coin plate or mass out on forfeiture the principal reason of this was as well to preserve and keep the Gold and Silver within the Realm as for the encrease of the Manufactures and the same at this day extends as well to Denizons so made by Letters Patents as Strangers however he may use the same in payment to the Kings Leige People without incurring the penalty of the Statute of 4 H. 4. but yet in strictness of Law ought not to receive any Gold in payment XII All Merchant Strangers that shall be made Denizons either by the Kings Letters Patents or by Act of Parliament must pay for their Merchandize like Custom and Subsidy as they ought or should pay before they were made Denizons XIII Every one that buys and sells is not from thence to be denominated a Merchant but only he who trafiques in the way of Commerce by importation or exportation or otherwise in the way of Emption vendition Barter permutation or exchange and which makes it his living to buy and sell and that by a continued assiduity or frequent negotiation in the mystery of merchandizing But those that buy Goods to reduce them by their own art or industry into other forms then formerly they were of are properly called Artificers not Merchants Not but Merchants may and do alter Commodities after they have bought them for the more expedite Sale of them but that renders them nor Artiâ—…rs but the same is part of the mystery of Mâ—…ts But Perâ—…â—…ying Commodities though theâ—… alâ—… not the form yet if they are such as â—…ell the 〈◊〉 at â—…ure dayes of payment for greater priâ—… then 〈◊〉 〈◊〉 them they are not properly called Merchants 〈◊〉 are 〈◊〉 thâ—… they 〈◊〉 〈◊〉 other names as Ware-House Keepers and the like but Banckers and such as deal by Exchange are properly called Merchants XIV
for Decrees given in the Chancery in England which have been exemplyfied under the Great Seal directed to the Kings Lievtenant for the putting the same in execution there but in no case a Judgment given in England may be certified over under any other Seal but that of the Great one But in Scotland it is otherwise for that is a Kingdom absolute and not like Ireland which is a Crown annexed by Conquest but the other is by Union and though they be united under one Prince ad fidem yet their Laws are distinct so as if they had never been united and therefore the execution of the Judgments in each other must be done upon Request as above and that according to the Laws of Nations XI But in Collonies or Plantations which are reduced into the condition of great Families have not this Right of Requesting for they are governed by the Laws prescribed by the Souveraign of the same who may set Jurisdictions make them places priviledged not to have the Persons attached or arrested in any other places but within their own bounds so likewise upon their first forming or Institution may so declare that for any debt or Contract made or done in any place but in that of the same Plantation they shall not be impleaded and therefore in Virginia at this day if a Man contracts a debt in England flies to the same she cannot be there impleaded But if a Man takes up Goods and carries the same over thither there he may be sued in the place so likewise if it can be proved he carryed over the money borrow'd and this amongst others of the Laws and Constitutions of those Plantations is preserved inviolably the same being as it were a pledge and general safety which is given to those Inhabitants that shall resort thither and there plant themselves for the good of the Place and although those that thither flie by reason of great and unreparable losses have contracted debts far beyond their ability to satisfy a failer of which in strictness of Law may if the Creditor pleases oblidge their Bodies to Imprisonment yet doth it not thence follow that the same ought to exacted for though the Carcass of Men may gratify the revenge of the Creditor yet it never can pay the debt wherefore if those ends by themselves in a morall estimation be not necessary or if other ends on the opposit part occur not less profitable or necessary or if the ends proposed by Imprisonment may be attained another way it will then follow that if there be nothing of obligation on the Debtors part to render himself a Prisoner to the Creditor that then if the same can or may be avoided by flight the same in conscience may be done according to that of Cicero It was not fit perhaps to dismiss him being brought to Judgment but that he should be enquired after and brought to judgment was not necessary FINIS A Short Table of the Principal Matters contained in this Book Distinguished by Lib. for the Book Chap. for the Chapter and §. for the Paragraph Accessory Lib. Chap. § PYrat in the attempt kills a person by the Law Maritime the Slayer onely is Principall and the rest onely Accessories but by the Common Law otherwise 1. 4. 13 No Accessory to Pyracy can be tryed by virtue of the Stat. 28 H. 8. but he must be tryed in the Admiralty 1. 4. 23 26 Acceptance Acceptance of a Bill of Exchange what words amount to the same 2. 10. 15 20 Actions Actions of Trover will lye for an 8th or 16th part of a Ship 2. 1. 12 Admirals The reason of their power 1. 6. 5 Lib. Chap. § Admiral where 10th part of the Prize is due to him 1. 1. 〈◊〉 Admiral hath no Jurisdiction infra Corpus Com. 2. 2. 2 He may issue forth Commissions for the assembling of Court Martials 1. 14. 16 Execution of a Sentence of Death cannot be without his leave ibid. Agrument Made with Forraigners by the Commissioners of the Custome-House all persons Subjects shall have benefit of the same 2. 15. 3 Agreement for Freight where the same is determined by the fault of either party 2. 4. 3 Cannot be made with a Mariner for the Freightment of the Vessel 2. 4. 14 Averidge Vide Contribution Alien Not Capable of the Kings Pardon unless they were resident at the time the same was promulgated 3. 4. 7 Capable of taking but not of enjoying What they may hold and if they depart who will enjoy the same 3. 2. 1 Cannot transfer to his Heir to what he is disabled to hold 3. 2. 2 Alien marries an English Woman that is seized the Issue shall inherit 2. 2. 6 Though the Issue be born beyond the Seas shall inherit 3. 2. 7 Born in the Kings Dominions not Aliens Purchases Lands with a Natural born Subject to them and their heirs they are Joynt-Tenants 3. 2. 11 Aliens resident and Aliens travelling through France the difference bâ—…tween them as in reference to their Estates 3. 3. 8 Administration of an Alien's Estate may be committed to the next of Kin. 3. 3. 9 Diffâ—…rence between the Crowns of France and England in reference to the Births of persons born in places which they formerly possest 3. 3. 10 Alien in League his Action is only to be abated but in Enmity may conclude in barr 3. 4. 1 Alliances Alliances not determined by the death of the Prince 1. 7. 6 Ambassadors Where obliged not to Treat with any other but the Prince 1. 7. 4 How Regulated at the Congresse 1. 7. 5 Their Function 1. 10. 1 How protected though the Messengers of Rebels or Thieves 1. 10. 2 Violence or killing them how punishable 1. 10. 3 15 May be rejected and not received and when 1. 10. 4 Where punishable by the Lawes of Nations 1. 10. 5 6 14. 9 Are not to render account to none but to them that sent them 1. 10. 6 Not bound by any thing that is not malum in se jure gentium 1. 10. 10 Yet obliged to the formalities of Law 1. 10. 11 He may have Soveraign Jurisdiction over his Family by the concession of him with whom he resides 1. 10. 12 His Goods and Moveables cannot be seized on for any Civil matter 1. 10. 13 Ambassadors of Venice cannot receive any Present or preferment from any Forraign Prince or State 1. 10. 16 Bailio at Venice is the Ambassador for that Republique 1. 10. 6 Anchors Anchors may be placed for conveniency against the Owners will in other places 2. 9. 7 Not fastning of Buoyes to them punishable 2. 7. 7 Appeal Appeal lyes from the Commissioners of Assurances to the Lord Keeper 2. 7. 16 Assurance Assurances private and publique are both alike as in reference to the obtaining satisfaction 2. 7. 1 2 3 May be made on Ships or other things as well as Merchandize 2. 7. 4 Assurors are discharged upon the alteration of the property 2. 7. 13 They are not to answer
Dominion universal 1 1. 1 Where acquired lawfully by Warr 1. 1. 7 Division of Estates first among Families 1. 1. 3 Dominion personal where the same may be 1. 6. 5 Dominion of things began from natural possession 1. 13. 10 Not founded in grace 2. 11. 3 Dower The Wife of one in Exile may bring a Writ of Dower 3. 1. 10 An Alien Wife cannot have the same unless a Queen 3. 2. 12 A Jew born in England takes a Jew born in England she cannot have Dower ibid. Ecclesiastical persons BY the Canon Law exempt from Reprizals 1 2. 16 So likewise from the Sword in time of Warr 1. 14. 18 Election Given to the Merchant to charge either Master or Pylot for Damage done 2. 9. 4 The like to charge the Master or Owners ibid. Embargo Embargo when by the Lawes of England 1. 1. 11 Goods of a Friend in the hands of an Enemy not subject to an Embargo 1. 1. 12 Goods laid aboard are Embargo'd yet Freight shall be paid 2. 1. 12 Enemy Goods taken from them become the Captors 1. 13. 10 Enemies Goods and Merchandize taken by them and afterwards retaken alters the property 1. 1. 7 Enemies what is lawful to do against them 1. 1. 9 If taken in the Realm are to be tryed by Martial Law 3. 4. 6 To relieve him by a Souldier in pay punished with death 1. 13. 8 England None could Trade thither without leave 1. 5. 7 English no Nation nâ—…re tender of their honour 1. 5. 9 Exchange Exchanges the various sorts 2. 10. 4 Bills on the same are to be governed by Custome 2. 10. 14 What amounts to an acceptance 2. 10. 15 Once accepted not to be revoked 2. 10. 28 Accepted for the honour of the drawer ibid. Executor Executor of a Forraigner shall not have the benefit of being discharged of Prisage though he is a Citizen of London 2. 8. 5 Exile The various wayes of banishing a Subject 3. 1. 9 What a man forfeits by the same 3. 1. 10 Exile of the Father binders not the Freedom of the Son ibid. Factor FActor Enemy the Goods of a Friend in his possession not subject to an Embarge 1. 1. 12 Factor contracts for another Port and before departure the Ship takes fire the Assurors are discharged 2. 7. 13 Factor super Cargo cannot alter the Voyage agreed on without special Commission 2. 4. 5 Factor super Cargo ought to be consulted with before there be a casting over-board 2. 6. 1 He ought to give notice if there be any Plate or Jewels in Boxes or Trunks 2. 6. 15 Factor Enemy the Goods in his possession not subject to Reprize 1. 1. 12 Cannot give time 3. 7. 3 Principal where obliged by his act and where not 3. 7. 4 Feés To the Officers of the Custome-house how governed 2. 13. 12 Felony The wilful casting away of a Ship by a Master that had taken up Moneys on Bottomery 2. 11. 11 Stealing of Cables or any of the Ships Furniture belonging to the King punished as Felons 1. 14. 11 Stealing of men at Sea Felony 1. 4. 15 Fishermen Fishermen ought not to Fish in the Night with Lanthorns or Lights 2. 5. 2 Flagg But a consecutive acknowledgment of the British Seas 1. 5. 7 Demanded peremptorily by the English and punished as Rebels if refused 1. 5. 9 How the same differs from that claymed by the French 1. 5. 11 The Right how far it is to be paid 1. 15. 3 How punishable for the neglect 1. 15. 5 Force Used by persons in opposition to Justice may occasion Reprisal 1. 2. 11 Forfeiture The Forfeiture of Ships drawes not the loss of the Boat 2. 1. 8 Forraigners Have a Right to compell where Justice is denyed in the ordinary way which Subjects have not 1. 1. 9 Forraigners Robb'd at Sea have a right to prosecute within the Stat of 28 H. 8. 1. 4. 7 So for the like offence to be punished by the Statute of 25 F. 3. 1. 4. 8 Forraigners in enmity together with some English commit Pyracy how punishable 1. 4. 9 Forraigners committing Pyracy on the British Seas punishable by the Crown of England and not elsewhere 1. 4. 10 Vide Aliens Fraud Fraud and Covinous Assurance is void 2. 7. 5. 15 Freéman How many wayes he may be made of City or Burrough 3. 1. 11 What makes a compleat Freeman ibid. Freight Freight where the same may be refused by the Master and where not 2. 4. 15 Freight is the Mother of Wages so likewise the Father of Damage 2. 1. 9 It is governed by the Contract 2. 4. 2 It shall be paid though the Ship proceeds not her Voyage if once she laded 2. 4. 4 Freight becomes due though there be a failer of compleating the Voyage according to the time agreed on 2. 4. 5 Freight not due if the Vessel is Robb'd 2. 4. 6 Out and in not due till the whole Voyage be compleated 2. 4. 8 If any fault arises from the Freighter he shall answer ibid. Fugitives Fugitives the houses of Ambassadors are Sanctuaries for them 1. 10. 12 Whether they may be delivered up flying into another Countrey 1. 11. 3 Persons that have wronged Kings of their Revenue have been delivered up when they become Fugitives 1. 11. 7 Are received by the Laws of Warr 1. 14. 20 Generals GOod Generals one of the greatest of happinesses that can come to a Prince 1. 13. 1 Such are followed to death by the Army ibid. Not to be slighted and of the Cruelty shewed to Belisarius 1. 13. 3 When taken in Battail they are not the Captors but that Princes or States by whose Subject they were taken 3. 1. 5 Goods When the property of the same is altered by the Lawes of Arms 1. 1. 7 Of a Friend in the custody of an Enemy not subject to Reprize 1. 1. 12 Goods counterband where the same may be subject to reprize 1. 1. 15 Of an Enemy may as well be spoyl'd as taken 1. 3. 1 What may be made Prize and what not 1. 3. 11 12 Goods secretly brought a shipboard if lost oblige not the Master 2. 1. 17 But if secretly brought in by the Master after a Ship is Freighted if damage happens to the rest he shall answer nor can those goods if cast over-board be subject to an Averidge 2. 4. 9 Goods on a mans Body not subject to an Averidge 2. 6. 4 Goods how estimated for the setling an Averidge 2. 6. 14 Exported what allowances to be made 2. 3. 2 5 Habitation IN time of Fire or Warr may be pulled down 1. 1. 4 Habitation or Domicil and not Originatirn or Nativity that subject men to Reprizal 1. 2. 14 Havens The same ought to be kept in peace 1. 1. 10 Hostages He that gives them is freed from his faith 1. 8. 6 Are not to be slain generally may be put to death if the Contract be broke 1. 14. 18 Impiety IMpiety punished a Shipboard 1. 13. 4 Incertainty Of the Port