if they had been born in England and no man shall be received against an Act of Parliament to say the contrary Therefore if the Father an Alien has issue a Son born here and then the Son is naturalized the Son shall inherit If the Father a natural born Subject has issue an Alien who is naturalized the Father dyes the Son shall inherit III. Naturalization does remove all that disability and incapacity which is in Aliens in respect of themselves and so puts them entyrely in the condition as if they had been born in England The Relative terms as if born in England is generally used to supply the personal defect of the parties naturalized arising from their birth out of England and therefore shall never be carryed to a collateral purpose nor cures a disease of another nature as half blood illegitimation and the like but all diseases whether in the parties themselves or resulting from the Ancestor it cures Acts of Parliament of this nature may be so pen'd as to cure defects in the Father or Ancestor or in the parties themselves If restitution in blood be granted to the Son by Act of Parliament this cures that disability that resulted from the Fathers Attainder and that not only to the Son but also to the collateral Heirs of the Father the true reason of this is because the corruption of the blood by the Attainder is only of the blood of the Father for the Sons blood or coliateral Heir was not at all corrupted for the scope of the Act is taking notice of the Fathers Attainder does intentionally provide against and remove it for otherwise the same had been useless But in naturalization without express words it takes no notice of the defects in the Father or other Ancestor noâ—… amoves them And therefore such Acts of Parliament as take no other notice but of the Person naturalized's Forreign birth the same cures not any disability of transmission hereditary between the Father Brother or any other Ancestor resulting from the disability of them without actually naming of them As for instance the Father an Alien the Son naturalized by Act of Parliament the Father or any other Ancestor an Alien purchases Lands and dyes the Son shall not take by reason of the disability in the Father but there may be words inserted in the Act that may take away the impediment IV. Those that are born in Ireland and those that are born in Scotland are all alike for their birth are within the Kings Dominions and they are born under the like subjection and obedience to the King and have the like band of allegeance ad fidem Regis yet if a Spaniard comes into Ireland and by the Parliament is there naturalized though perhaps this may qualifie and cloath him with the title of a natural born Subject of Ireland yet it has been conceived that it will not make him a natural born Subject of England For the union of Ireland to that of England is different from that of Scotland for the first is dependant as a Kingdom conquered the latter independant Though Henry the II. after his Conquest of that Nation did remit over from England the Ancient modus tenendi Parliamentum enabling them to hold Parliaments which after was confirmed by King John yet that was by no other sorce then bare Letters Patents Now when a Nation is once conquered there remains no Law but that of the Conqueror and though he may incorporate such conquered Nations with his own and grant unto them their ancient Parliamentary wayes of making of Laws yet the Conqueror can no wayes grant unto them a power by vertue of such Grant or Confirmation as to impose upon his own Countrey for he himself before such Conquest could not make a natural born Subject without Act of Parliament and most certainly his Conquest adds nothing to his power though it does increase his Dominion V. Again Kingdoms that are absolute under one Prince ad fidem Regis there the Acts of each other are reciprocate and one naturalized by the Parliament of Scotland is as naturalized in England because Scotland is a Kingdom absolute but Ireland is a Kingdom dependant and subordinate to the Parliament of England for the Parliament in England can make an Act to bind Ireland but not e converso Now to be a Native of Ireland is the same as to be born in Ireland but that is by the Laws of Ireland but to be born in Ireland and to be the same as to be born in England must be by the Laws of England But there is no Law that hath enabled them with such a power as to naturalize further then their own Laws extend but the Law of Ireland does not extend in England therefore Naturalization in Ireland operates only in Ireland because of the failer of power VI. Again Kingdoms that are Conquered the Empire of the same may be acquired by the Conqueror only as it is in a King or other Governour and then the Conqueror only succeeds into his right and no further or also as 't is in the People in which case the Conqueror hath Empire so as that he may dispose of it or alienate it as the People themselves might for 't is one thing to enquire of the thing another of the manner of holding of it the which are applicable not only to corporal things but incorporal also For as a Field is a thing possessed so is a passage an Act a way but these things some hold by a full right of property others by a right of usufructuary others by a temporary right Again by the will of the Conqueror the Kingdom or Republique that is so conquered may cease to be a Kingdom or Common-wealth either so that it may be an accession of another Kingdom or Common-wealth as the Roman Provinces or that it may no wayes add here to any Kingdom or Common-wealth as if a King waging War at his own charge so conquer and subject a People to himself that he will have them governed not for the profit of the People chiefly but of the Governour which is a property of that we call Heril Empire not of Civil for Government is either for the profit of the Governour or for the utility of the Governed this hath place among Free-men that among Masters and and Servants The People then that are kept under such command will be alwayes for the future not a Common-wealth but a great Family hence it is that we may plainly understand what kind of Empire is that which is mixt of Civil and Heril that is where Servitude is mixt and mingled with some personal Liberty For if the People are deprived of Armes commanded to have no Iron for Agriculture to change their language and course of life and abstain from the use of many of their Customes to be confined to their own Houses Castles or Plantations not wander abroad to be governed by such Laws
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
of the Dominion of Ireland and several grants have been made to the Irish which proves them to be meer Aliens But afterwards though the same was a separate and divided Kingdom yet whilst they were under the subjection and obedience of the Kings of England if High Treason had been committed by an Irish man he might be arraigned indicted and tried for the same within England and by the Laws of England and so it was resolved by all the Judges of England in Orucks case 33 Eliz. and also in Sir John Perrots case that Ireland was out of England and yet that all Treasons committed there were to be tryed in England and that by virtute of the Statute of 38 H. 8. cap. 23. Arthur Crohagan an Irish-man was arraigned for that he being the Kings Subject at Lisbon in Spain used these words I will kill the King inuendo Dominum Carolum Regem Angliae if I may come unto him because he is a Heretick that afterwards he came into England and was taken and tried by a Jury of Middlesex and was found guilty and it was held High Treason by the Course of the Common Law for his Traiterous intent and imagination of his heart is declared by these words and within the Statute 25 E. 3. He confessed he was a Dominican Fryar and Priest in Spain Bracton sayes that an Alien born cannot be a witness but that is to be understood of an Alien Infidel for the Bishop of Rosse being an Alien born a Scot was admitted to be a witness and sworn Yet an Infidel may bring an action against another Merchant or any other however and that without controversie The testimony of a Renegadoe is not to be received at this day by the Laws of any Christian Kingdom or Republique he that hath once renounced his Faith can never be believed therefore he cannot be a witness and so it was rul'd where one Domingeo de la Cardre a Renegado who was sworn and gave evidence afterwards a new Trial being granted his testimony was rejected and he not suffered to be sworn it being at his Trial proved that he was a Spaniard and a Christian by birth and education and after became a Jew If an Alien be resident and commits an offence he shall have the benefit of the Kings general pardon but if he is not in the Kingdom at the time of the pardon promulgated then he looses the benefit of the same for he is no otherwise a Subject but by his residence here CHAP. V. Of Planters I. Of Possession and its original right II. Of Vacancies natural which gives a right to Planters III. Of Civil Vacancies how far the same may be possessed IV. Of Planters whether they have a firm right so as to dispose by Will or only a Usufructuary possession V. Of Planters wanting things necessary for the support of humane life generally considered according to the Laws of nature VI. Wherefore one man may naturally have more then another and what conditions are annexed to such fortunes for those that are in necessity VII Whence it is that there was at the beginning and is still a Tacite condition of reassuming our Original rights in case of extream or natural necessity for natural Community VIII Of necessity considered in a Christian Community IX Of the Primitive Communion considered in reference to its restrictions and limitations X. Of those things that are dedicated to God and holy use whether subject to the relief o our necessities I. HAving in the first Chapter of this Book discoursed of the original of property deducing its inception to that which we call possession or meum and how the same may be altered by War it may not seem unnecessary to discourse of the acquiring of property in the new discoveries of those vast immensities of America which being prepossess'd seem to deny us legally that title which we pretend to Possession by Law is esteemed the highest title that men can pretend to what they enjoy which is nothing else but positio pedis as if the Ancients had no other seal to confirm their tenures but the prints of their feet and good reason seeing the mind is not able to take up a place so well as the Body for many mens wills may concur in wishing and liking the same thing but many bodies cannot concur to the possessing it Besides the mind cannot set an outward mark on what it likes that thereby others might be warned to abstain from it all which the Body properly doth Abrahà m and Lot going to plant declared no more then this there was room or vacancy enough and therefore without further examination or scruple they knew they might turn to the right hand or to the left to possess what they would to themselves II. This Vacancy which gives us a right to plant is to be considered in two respects 1. Natural 2. Civil the first is in things which may be possess'd but actually are not neither in property nor use such a Vacancy which is nullius in bonis might be occupied by Switzers who as Caesar sayeth would fain have changed their rough Hills for some nearer Campania and Deserts or Places un-inhabited may be possess'd and appropriated to the first Planter and that without all controversie but especially by those who being expulsed from their own Seats or Estate seek entertainment abroad The Ansebarians in Tacitus cry out As the Heaven to the Gods so is the Earth granted to Mortals and what is void is publique Looking up to the Sun and Stars they did openly as it were enquire of them Whether they were pleased in beholding any ground empty and without Inhabitants they should rather cast forth the Sea and overwhelm the Spoilers of the Earth III. Civil Vacancy is where it is not absolutely incorporated as among the roving Arabians and Moores in Barbary and other Affricans and Americans who possess one place to day and another to morrow these by their frequent returns shew that they abondon not the Places they remove from as derelicta quae quis in bonis amplius numerare non vult we can not say that their natural or voluptary interest in them is no way improved for Grotius seems to be of opinion that if there be some Desert or barren ground the same ought to be granted to Strangers upon their request and says he It is also rightly seized on by them giving this reason For that Lands ought not to be esteemed occupied which is not cultivated but only as to the Empire which remains entire to the first People they do no offence who inhabite and manure a part of the Land that lyes neglected * But we must press this Argument of Grotius very tenderly least by the same reason others conclude that those Estates which are not competently improved are derelict and occupiable by others which would introduce perpetual confusions and easily perswade every man that he could husband his
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
as if a blanck is left in the policy if a loss happens the parties are without remedy 2. 7. 14 Indictment For Pyracy upon the Statute must mention the same to be done at Sea 1. 4. 23 Indiction If necessary 1. 1. 11 Infidel Cannot be a witness yet may bring an Action 3. 4. 7 Innocent Whether such a person may be deserted to prevent a Warr 1. 11. 5 How obliged to render up himself 1. 11. 7 Interpellation Interpellation having gone and no satisfaction returned whether Warr may be begun 1. 1. 14 Joynt-Traders Vide Societieg Joynt-Traders the acceptance of a Bill by one will bind the other 2. 10. 18 But accepted by one Member of a Company it cannot oblige another Justice Stopt and Judges not able to protect men from Violence denotes Warr 1. 1. 6 Denyed or delayed in the ordinary course to a Forraigner gives right of Reprizal 1. 2. 9 11 In matters doubtful the presumption is alwayes for the Judge 1. 2. 10 King KIng's Standard appearing in the Field denotes a Warr 1. 1. 6 King not entitled to the Copyhold Land of an Alien 3. 2. 11 Law OF Nature what thing may be acquired in Warr by the same and also by the Lawes of Nations 1. 1. 6 Law Civil cannot command any thing that the Lawes of Nations forbids 1. 6. 1 Lawes of Nations broken by an Ambassadour subjects him to punishment 1. 10. 5 Judgments how executed by the Lawes of Nations 3. 8. 8 Larceny Where the same may be in a Master 1. 4. 16 Leagues Leagues made with Princes though they have lost their Kingdome remain 1. 7. 18 Leagues remain though the Republique is changed into a Monarchy 1. 7. 17 Leagues the Oath binds the person and the Promise the Successor ibid. Leagues confirmed in England by Parliament and are often Offensive 1 7. 7 The cause ordinary for which they are made 1. 7. 8 Defensive Leagues Leagues how Ratified 1. 7. 12 How broken and the ordinary cause 1. 7. 13 14 How to be interpreted 1. 8. 6 Loadmanage What. 2. 7. 7 London Discharged of Prisage 2 8. 3 The Extent of the Port 3. 14. 9 Keyes and Places lawful for landing in the same 2. 14. 10 Charter confirmed 3. 1. 10 Lotts Vide Mutiny Manumission WHen first introduced 3. 1. 8 The various wayes of making Free ibid Marriners and Fishermen Pressed for the Service are not to be imployed but as Marriners 1. 6. 4 Their Wages dye with the Ship 2. 3. 7 Marriners their Suits favoured by the Courts at Common Law 2. 3. 8 May be corrected by their Master or Captain 2. 3. 12 Marriner cannot contract for Freight 2. 4. 14 Marriners what share they have in the Goods of a Passenger deceasing in the Voyage 2. 4. 11 Marriners their faults and punishments 1. 13. 4 5 Marriners a Shipboard their various Offices and Imployes 2. 3. 1 Their faults how punished 2. 3. 2 The mutual Ayd they must afford one another 2. 3. 3 Not to be arrested a Shipboard nor are they to depart thence when once entertained ibid. Obliged to make satisfaction 2. 3. 4 Masters of Ships Where his knowledge of the Goods may involve the whole Lading 1. 1. 12 Master of a Ship hang'd up for attempting to relieve a place block'd up 1. 1. 14 Master of a Ship becomes a Pledge in the hands of Pyrats for the redemption of the Ship the same is made lyable for his redemption 1. 4. 5 Master brings Goods to a Port and then runs away with them not Pyracy 1. 4. 16 Master responsible for offences to his Owners 2. 1. 8 Where he may release the Freight and where not 2. 4. 15 Where his act obliges the Owners and where not 2. 1. 10 Master hath no Property in the Vessel by being constituted Master 2. 2. 1 Master becomes lyable immediately by the lading the Ship aboard 2. 2. 2 So likewise if he receives them if lost he must answer 2. 2. 3 His Duty 2. 2. 4 He may borrow Money on the Ship 2. 2. 14 2. 11. 10 The Master is obliged to the care and preservation of his Marriners 2. 3. 2 He is obliged for the Barratry of his Marriners 2. 3. 13 Master not lyable unless the Lading is brought aboard by his and his Pursers consent 2. 3. 17 Nor can the same be attached in his hands 2. 3. 18 If he translades the Lading and the Ship miscarry he shall answer but if both è cont ' 2. 4. 4 Master to answer for insufficient Ropes in hoysting out the Goods 2. 9. 5 Masters obliged by the act of their Servants 2. 10. 27 Members What is understood by them 2. 14. 7 Merchants Honour justly due to Merchants 3. 9. 1 The more Honourable the persons are the more reputation they bring to their Country 3. 6. 2 All Nations professing the same may freely Traffique for England 2. 12. 1 Merchants Strangers their Immunities granted 2. 12. 9 An Alien Infant cannot be a Merchant Trader in England nor can be enter Goods in his own name 3. 2. 11 No survivor amongst Joynt Merchants 3. 6. 14 May depart without leave 3. 6. 15 Money Is the civil measure of things 2. 11. 5 Its necessity in Society 2. 11. 6 7 Advanced on a contingency is no Usury 2. 11. 13 14 Mutiny To be punished with death how the same is to be governed in such extremity 1. 14. 17 Not to Mutiny if the Victuals are naught 1. 14. 23 They may be Executed immediately 1. 14. 26 Naturalization CAnnot be in England without Act of Parliament 3. 3. 2 It removes all the disability or incapacity in the Ancestor 3. 3. 3 Naturalized in Ireland operates not in England but in Scotland otherwise 3. 3. 4 Necessity The Master may translade without Commission 2. 4. 4 Necessity is excepted out of the Law of Dominion 1. 1. 4 Ships in Necessity may take things necessary from another by force of Arms 1. 4. 18 The right of Nature in such extremity where let in 3. 5. 5 In such Exigencies how written Lawes are to be interpreted 3. 5. 7 Neutrality Neuters how they ought to carry themselves in Warr 1. 1. 14 Neuters their Ships in the Ports of the warring Parties whether being forced to fight is a breach of the League 1. 1. 15 Neutrality what and how made 1. 9. 6 The advantage of the same 1. 9. 7 Neuter neither purchases Friends nor frees himself from Enemies 1. 9. 7 It works no wrong ibid. If prest for whom must he declare 1. 9. 8 Oath HE that gives it to Pyrat is bound to the performance 1. 2. 6 Oath may be administred by the Judge Advocate 1. 14. 27 Office King not entitled to the Lands of an Alien till Office found but in Treason è cont ' 3. 2. 10 Officer Quarrelling with how punished if struck the party offending suffers death 1. 14. 22 Owners Owners may Freight out their Ship against the consent of each other 2. 1. 2 Cannot be
his interrest and the retaking afterwards in Battel gained the Captors a property 'T is true the Civilians do hold that it is not every possession that qualifies such a Caption and makes it become the Captors but a firm possession that is when the prize doth pernoctare with the Enemy or remain in his possession by the space of 24 hours but as this is a new Law so it is conceiv'd to be against the antient as well as the modern practice of the Common Law for the Party in the antient Presidents doth not mention by their Plea that the prize did pernoctare with the Enemy and but general that the same was gain'd by Battle of the Enemy But if such a Recaption is by one of the King of Englands Ships of War their Restitution has been made the Party relieved paying his offering to the Admiral commonly called Salvage Mony VIII This right of changing of Dominion or Property by force of Arms is so odious that in the taking of Goods if by any possibility the right owners may have restitution the same hath been done And although a larger time then 24 hours happens between the capture and recapture and so may pernoctare with the Captor yet restitution may be made and therefore if one Enemy takes the Ship and Merchandize of another Enemy and brings her into the Ports or Havens of a Neuter Nation the Owners may seize her and the Admiral of that Neuter Nation may in some cases restore the Ship and Goods to their Owners and the Persons captive to their former liberty the reason is for that the same ought to have been brought infra Praesidia of that Prince or State by whose Subject she was taken A Dunkirker having seiz'd a Frenchmans Vessel super altum Mare sold the same with her lading at Weymouth whether it had been driven before she was brought infra Praesid Dom. Reg. Hispaniae the Frenchman coming into Port then claims the benefit of the Laws of Nations the King of England being then in amity with both their Princes and that restitution be made in which case it was resolved by all the Judges that if there be a Caption by Letters of Marque or by Piracy and the Vessel and Goods are not brought infra Praesidia of that Prince or State by whose Subject the same was taken the same will not divest the Property out of the Owner with this agrees the Law Civil and restitution may be made IX But if the Ships of War of Nations in enmity meet at Sea and there be a caption if there be that which is called a firm possession the Neuter Nation cannot re-deliver or make restitution of the thing so acquired and so it was adjudged where Samuel Pellagy with a Ship of War of the Emperor of Morocco took a Spanish Ship and brought the same into England that he could no ways be question'd for the same criminaliter or restitution to be made civiliter for that the King of Spain and the Morocco Emperor were enemies and the King of England in amity with both and that such a caption is not called Spoliatio sed Legalis captio in which there can be no restitution made upon neither of the Stat. of 31. H. 6. cap. 4. or 27. Ed. 3. cap. 13. for he that will sue to have restitution in England for Goods taken at Sea must prove that the Soveraign of the party was in amity with the King of England Secondly that he that took the Goods his Prince was at the time of the taking in amity with the Soveraign of him whose Goods were taken for if he which took them was in enmity with the Soveraign of him whose Goods were taken then the same will not amount unto a depredation or robbery but a lawful taking as every enemy might take of another A Spanish Merchant before the King and his Councel in Camera Scaccarii brought a Bill against divers English-Men wherein setting forth quod depradatus spoliatus fuit upon the Sea juxta partes Britannia per quendam Virum Bellicosum de Britannia de quadam Navi and of divers Merchandises therein which were brought into England and came into the hands of divers Engish-Men naming them and so pray'd process against them who came in and pleaded that in regard this depredation was done by a Stranger and not by the Subjects of the King of England they ought not to answer It was there resolv'd Quod quisquis extraneus who brings his Bill upon this Statute to have restitution debet probare quod tempore captionis fuit de amicitia Domini Regis and also quod ipse qui eum receperit spoliavit fuit etiam sub obedientia Regis vel de amicitia Domini Regis sive Principis quaerentis quia si fuerit inimicus sic ceperit bona tunc non fuit spoliatio nec depredatio sed legalis captio prout quilibet inimicus capit super unum alterum But if the King of England is in enemity with the States of Holland and one of their Ships of War takes a Merchant-Man of the King of Englands and afterwards another Ship of War of England meets the Dutch-Man and his prize and in aperto praelio regaines the prize there restitution is commonly made the Owners paying their Salvage so where the prize is recover'd by a Friend in amity or comes into his Ports restitution is likewise made but when such Goods become a lawful and just prize to the Captor then should the Admiral have a tenth part following the religious example of Abraham after his Victory over the five Kings X. He that is an Enemy may every where be assaulted according to the Laws of Nations Enemies may therefore be attaqu'd or slain on our own ground on our Enemies or on the Sea but to assault kill or spoil him in a Haven or Peaceable Port is not lawful but that proceeds not from their Persons but from his right that hath Empire there for Civil Societies have provided that no force be used in their Countreys against Men but that of Law and where that is open the right of hurting ceaseth the Carthaginean Fleet was at Anchor in Syphax Port who at that time was at peace with the Romans and Carthagineans Scipio unawars fell into the same Haven the Carthaginean Fleet being the stronger might easily have destroy'd the Romans but yet they durst not fight them the like did the Venetian who hindred the Greeks from assaulting the Turkish Fleet who ride at Anchor in a Haven then under the Government of that Republique so when the Venetian and Turkish Fleet met at Tunis though that very Port ackowledges the Ottoman Emperor but in regard they are in the nature of a Free Port to themselves and those that come there they would provide for the Peace of the same and interdicted any hostile attempt to be there made But they of Hamborough were
the Fellow Subject of the Captors or of Nations in Amity with his own Soveraign make restitution to the Owner the costs and charges and what other things in equity shall be decreed to the Captor first considered and deducted XX. By the Status of 27 Edw. 3. cap. 13. if a Merchant loose his Goods at Sea by Pyracy or Tempest not being wrackt and they afterwards come to Land if he can make proof they are his Goods they shall be restored to him in places Guildable by the King's Officers ' and six Men of the Country and in other places by the Lords there and their Officers and six Men of the Country This Law hath a very near relation to that of the Romans called De Usu-Captione or the Atinian Law for Atinius enacted that the Plea of Prescription or long possession should not avail in things that had been stoln but the interest which the right Owners had should remain perpetual the words of the Law are these Quod surreptum est ejus rei aeternitas auctoritas esset where by Auctoritas is meant Jus Dominii XXI Yet by the Common Law of England it has been held that if a Man commit Pyracy upon the Subjects of another Prince or Republique though in League with us and brings the Goods into England and sells them in a Market Overt the same shall bind and the Owners are for ever concluded and if they should go about in the Admiralty to question the property in order to restitution they will be prohibited XXII This offence was not punishable by the Common Law as appears by the preamble of the Stat. of 28. H. 8 cap. 15. but the same was determined and judged by the Admiral after the course of the Civil Law but by force of the said Act the same is enquired of heard and determined according to the course of the Common Law as if the offence had been committed on Land XXIII This Act does not alter the offence or make the offence Felony but leaves the offence as it was before this Act viz. Felony only by the Civil Law but giveth a mean of Tryall by the Common Law and inflecteth paines of death as if they had been attainted of any felony done upon the Land The Indictment must mention the same to be done upon the Sea A Pardon of all Felonies does not extend to this offence but the same ought especially to be named Though there be a forfeiture of Lands and Goods yet there is no corruption of Blood There can be no Accessory of this offence tryed by virtue of this Statute but if there be an Accessory upon the Sea to a Pyracy he must be tryed by the Civil Law The Statute of 35 H. 8. cap. 2. taketh not away this Statute for Treasons done upon the Sea Clergy is not allowable to the party on the Statute 28 H. 8. vide 14. Jac. in B. R. Moore 756. placet 1044. Though a Port is Locus publicus uti pars Oceani yet it hath been resolved more then once that all Ports not only the Town but the Water is infra corpus Comitatus If a Pyrat enters into a Port or Haven of this Kingdom and a Merchant being at Anchor there the Pyrat assaults him and robs him this is not Pyracy because the same is not done super eltum Mare but this is a down-right robbery at the Common Law for that the Act is infra corpus Comitatus and was inquirable and punishable by the Common Law before the Statute of 28 H. 6. cap. 15. XXV So If such a Pyracy be made in a Creek or Port in such cases it has been conceived that Clergy is allowable upon the Stat. of 28 H. 8. but if it be done super altum Mare there no Clergy is allowable by the Pardon of all Felonies at the Common Law or by the Statute Law Felony super altum Mare is not pardoned for though the King may pardon this offence yet being no Felony in the eye of the Law of this Realm but only by the Civil Law the Pardon of all Felonies generally extends not to it for this is a special offence and ought especially to be mentioned XXVI A Man attainted by virtue of that Statute forfeits his Lands and Goods yet there works no corruption of Blood by virtue of that attainder nor can there be any Accessory of Pyracy by the Law of this Realm but if it falls out that there is an Accessory upon the Sea such Accessory may be punished by the Civil Law before the Lord Admiral but he cannot be punished by virtue of this Act because it extends not to Accessories nor makes the offence felony XXVII If one steals Goods in one County and brings them into another the Party may be indicted in either County but if one commits Pyracy at Sea and brings the Goods into a County in England yet he cannot be indicted upon that Statute for that the originall taking was not felony whereof the Common Law took conuzance XXVIII If a Man is taken on suspition of Pyracy and a Bill is preferred against him and the Jury find Ignoramus if the Court of Admiralty will not discharge him the Court of Kings Bench will grant a Habeas Corpus and if there be good cause discharge him or at least take Bayle for him But if the Court suspects that the Party is guilty perhaps they may remand him and therefore in all cases where the Admiralty legally have an original or a concurrent Jurisdiction the Courts above will be well informed before they will mdedle If a Man be in custody for Pyracy if any aids or assists him in his escape though that matter is an offence at Land yet the Admiralty having Jurisdiction to punish the principal may have likewise power to punish such an offender who is lookt upon quasi an Accessory to the Pyracy but to rescue a Prisonner from an Officer of theirs they may examine the cause but they cannot proceed criminally against the offender XXIX Antiently when any Merchants were robbed at Sea or spoiled of their Goods the King usually issued out Commissions under the Great-Seal of England to enenquire of such depradations and robberies and to punish the Parties and for fraudes in Contracts to give dammages to the Parties and proceed therein secundum Legem consuetudinem Angliae secundum Legem Mercatoriam Legem Maritimam all three Laws included in the Commissions One Marsh a Fisherman being at Sea was taken by Pyrats and all which he had after that the Pyrats took another Ship belonging to the Dane and the Pyrats having rifled the Ship and taken the best of the Goods of the Danes the Pyrat put aboard the Fisherman and so suffered him to depart who landing here went immediately to Dr. Talbot a Civilian and shewed him all this matter and desiring his advice who directed an Inventory to be
Flagg and lower his Top-Sail at his first approach to the French Fleet and to salute the Admiral of France with Guns who was to return the said salute by Guns also as was usual when the Dutch and English Fleet did meet Only in this the right of the Flagg of England differs from that claimed by the French for if there had been a failer on the part of the Dutch of paying that respect to the French the same would have amounted to no more but a breach of the League but the not striking to the King of Englands Flagg is open Rebellion and the Article does so signify for it is there mentioned as a Right and Soveraignty not a bare Dominion only like that of Jerusalem to the King of Spain XII The Duty of the Flagg that hath been so constantly pay'd to our Ancestors is of such advantage to the continuing the renown of this Nation that it serveth to imprint new reverence in Forreigners that render it and adds new courage to those of our Sea Men that exact it and since we know how much it imports a State that it be reverenced abroad and that Repute is the principal support of any Government it equally influenceth the Subjects at Home and Forreign Allies abroad And as there is no Nation in the World more tender of their Honour then the English so none more impatiently tollerate the diminution thereof with what resentments would not only the more generous and Noble but even the Popular and vulgar Sea Men detest this or any succeeding Age should they remit or loose that Regality those acknowledgements which their Predecessors with so much Glory asserted and the neglect whereof was alwaies punished as open Rebellion the indignity of such an Action being sufficient to enflame the whole Kingdom the consideration of which besides his Sacred Majesties own Royal inclination to the same and his evident testimonies never to abandon a ceremony of so high a concernment witness the exposing the one half of his own heart his Royal Highness in the asserting the same with such Fleets and in such Battles that no Age or time cannot shew a memorial of the like are causes sufficient to create in us new flames of love to those Royal Patriots and Defenders of our Rights Private Persons move in another sphear and act by other Rules then Soveraign Powers the regard of credit with them may oftentimes yield to those of utility or other motives the Publique receives little injury thereby or is their wisdom questioned for such punctilio's if they relinquish them for other Imoluments or Peace sake but Soveraigns cannot so transact their subjects the People participate in their Honour and indignities they have a property a direct Right in the former Soveraignes cannot alienate or suffer their Honours to be impaired because it is not really theirs it appertains to the Nation universally and they are all effectually injured by such transactions either because the indignity doth really extend to them or because the Government and Authority is thereupon weakned and prejudiced which is the greatest of Civil detriments that can befall a People though ordinarily they are not aware thereof As Prudence doth thus distinguish betwixt the demeanor of Private and Publique Persons so doth Charity it self for though the Gospel precepts do oblidge particular Persons to bear injuries and contumelies with patience and to surrender even the Coat as well as the Cloak yet is not this so to be construed as if even Private Christians were to yield up their Civil Rights to every insolent that would incroach upon and usurp them or that they were to deprive themselves of those Reparations which the Law and Government affords them neither is it so to be understood as if the Civil Magistrate in Christendom might not secure himself of that obedience and reverence which is due unto dignity but bear the Sword in vain XIII This being the value which this Nation did alwaies place upon the Right of the Flagg the which they never did regard it only as a Civility and Respect but as a principal Testimony of the unquestionable Right of this Nation to the Dominion and superiority of the adjacent Seas acknowledged generally by all the Neighbour States and Princes of Europe and must be pay'd and ackowledged by all Princes in the World that shall be or pass on the same The Maritime Dominion by the Laws of England were alwaies accounted the Four Seas such as are born thereon are not Aliens and to be within them is to be within the Legeance of the King and Realm of England The Records in the daies of Edward the 3d. and Henry the 5th proclaim it that those Kings and their Progenitors had ever been Lords of the Seas and amongst those many great Instances of proving the Soveraignty of the same is that famous Record of Edward the first and Phillip the Fair of France in which the Procurators of most Nations Bordering upon the Sea thoroughout Europe as the Genoeses Catalonians Almaines Zelanders Hollanders Freislanders Danes and Norwygians besides others under the Dominion of the Roman German Empire where all joyntly declare That the Kings of England by right of the said Kingdom from time to time whereof there is no memorial to the contrary have béen in peaceable possession of the Soveraign Lordship of the Seas of England and of the â—…es within the same with power of making and establishing Laws Statutes and Prohibitions of Arms and of Ships otherwise furnished then Merchant Men use to be and of taking surety and affording safe-guard in all cases where néed shall require and of ordering all things necessary for the maintaining of Peace Right and Equity among all manner of People as well of other Dominions as their own passing through the said Seas and the Soveraign Guard thereof By which it plainly appears That the King of England had then been in peaceable possession of the said Dominion by immemorial prescription that the Soveraignty belongeth unto them not because they were Domini utriusque ripas when they had both England and Normandy and were Lords of both shores for Edward the first at that time had not Normandy but that it is inseparably appendant and annexed to the Kingdom of England our Kings being Superior Lords of the said Seas by reason as the very Record mentions of the said Kingdom and since that the Soveraignty of the Sea did alwaies appertain unto the English King not in any other Right then that of the Kingdom of England no Prince or Republique ought or can doubt the Tittle by which our present claim is deduced 't is in right of Britannia that the same is challenged 't was in that right the Romans held it the claim justified Ed. 3. and his Rose Noble though there are other reasons regarding to the Lancastrian Line which yield a Colour for the use of the Port-cullis in the Roal Banners of England
up he must bear his equal share and proportion with the rest The Master cannot on every case of necessity impawn the Vessel or Furniture for if she be Freighted and he and the Owners are to joyn in the laying in of the provisions for the Voyage and parhaps he wants money a great sign of necessity yet can he not impawn the Vessel or Furniture any other or further then for his own part or share in her the which he may transfer and grant as a man may do an 8th or 5th part in Lands or Houses But such obligation of the Vessel must be in forreign parts or places where the calamity or necessity is universal on the Vessell XVI If the Vessel happens afterwards to be wreckt or cast away and the Marriners by their great pains and care recover some of the ruines and lading the Master in that case may pledge the same the produce of which he may distribute amongst his distressed Marriners in order to the carrying them home to their own Countrey But if the Marriners no wayes contributed to the Salvage then their reward is sunk and lost with the Vessel But if there be any considerable part of the lading preserved he ought not to dismiss his Marriners till advice from the Laders or Freighters for otherwise perchance he may be made lyable If Merchants Freight a Vessel at their own charges and set her to Sea and then happens afterwards to be Weather-bound the Master may impawn either Ship or Lading at his pleasure or at least such as he could conveniently raise moneys on rather then see the whole Voyage lost And if he cannot pawn the Lading he may sell the same that is so much as is necessary in all which cases his act obliges However Orders and Instructions are as carefully to be look'd upon and followed as the Magnate XVII He is not to Import into or Export out of any the English Plantations in Asia Affrica or America but in English or Irish Vessels or of the Vessels built and belonging to that Country Island Plantation or Territory The Master and 3 fourths of the Marriners to be English upon forfeiture of Ship and Goods And if otherwise they are to be look't upon as Prize and may be seized by any of the Kings Officers and Commanders and to be divided as Prizes according to the Orders and Rules of the Sea All Goods of the Growth of his Majesties Plantations are not to be imported into England Ireland or Wales Islands of Jersey or Guernsey but in such Vessels as truly belong to Owners that are of England Ireland Wales Jersey or Guernsey and three fourths at least of the Marriners are to be English upon forfeiture of Ship and Goods The Goods and Wares of those Plantations and brought in such manner as aforesaid must be brought from those very Countries of their several productions and growths or from the Ports where they are usually shipped out on forfeiture of Ship and Goods XVIII No Ship to go from Port to Port in England Ireland Wales Jersey or Guernsey or Berwick unless the Owners are Denizens or Naturalized and the Master and 3 fourths to be English All Owners must swear that their Vessels or Ships are their own proper Ships and Vessels and that no Forreigner has any share or part in her and must enter the same and that she was bought for a valuable consideration Bona fide Nor to bring in any goods from any place but what are of the growth of that very Country or those places which usually are for the first Shipping on pain of forfeiture of their Vessel and Furniture This does not extend but Masters may take in goods in any part of the Levant or Streights although they are not of the very growth of the place so that they be imported in English Ships 3 fourths English Marriners So likewise those Ships that are for India in any of those Seas to the Southward and Eastward of Cabo bona Speranza although the Ports are not the places of their very growth Any people of England may import the Master and Marriners 3 fourths English any goods or wares from Spain Portugal Azores Madera or Canary Islands Nay in Ships that are not English built Bullion may be imported so likewise in those that are taken by way of Prize Bona fide But Sugars Tobacco Cottens Ginger Indicoes Fustick or any other dying Wood of the growth of his Majesties Plantations are to be Shipped carryed or conveyed from any of the English Plantations are to be carryed to no place in the world but are to come directly for England Ireland Wales or Barwick upon pain of forfeiture of Ship and goods and the Master is to give bond with one Security in a Thousand pound if the Ship be under the burden of a 100 Tuns and 2000 l. if above that upon Lading he brings his Ship directly into England Ireland Wales or Berwick the danger of the Seas excepted so likewise they are to do the same for the Ships that shall go from the Plantations at the Plantations to the Governour upon forseiture of the Ship and Goods XX. When the Master shall arrive at Gravesend he shall not be above 3. dayes coming from thence to the place of discharge nor is not to touch at any Key or Wharfe till he comes to Chesters Key unless hindred by contrary Winds or draught of Water or other just impediment to be allowed by the Officers And likewise he or his Purser are there to make Oath of the Burthen Contents and Lading of his Ship and of the marks number contents and qualities of every parcel of Goods therein laden to the best of his knowledge also where and in what Port she took in her Lading and what Country built and how manned who was Master during the Voyage and who the Owners And in out-Ports must come up to the place of unlading as the condition of the Port requires and make Entries on pain of 100 l. Nor is such Master to lade aboard any Goods outwards to any place whatsoever without Entring the Ship at the Custome-House of her Captain Master Burthen Guns Ammunition and to what place she intends and before departure to bring in a Note under his hand of every Merchant that shall have layd aboard any Goods together with the marks and numbers of such Goods and be sworn as to the same on pain of 100 l. No Captain Master Purser of any of his Majesties Ships of Warr shall unlade any Goods before Entry made on pain of 100 l. Note There is a List of all Forraign built Ships in the Exchequer and that no Forraign Ship not built in any of his Majesties Dominions of Asia Affrica or America after 1. Octob. 1662. and expressly named in the List shall enjoy the Priviledges of a Ship belonging to England or Ireland although owned and manned by English except onely such as are taken by way of reprize
been denyed them notwithstanding that the Judge of the Admiralty is Judge of the Court of Assurance XIX By the making of an Office Pollicy according to the Statute these advantages will follow 1. If the Pollicy be lost if the same be entred with the Register of the Office the Entry is effectual to answer the matter both at the Common Law as well as in the same Court but a private Pollicy lost is like a Deed burnt unless that there be very strong evidence as a Copy and the like it will be of little value So that then there will remain nothing but an Equitable relief in Chancery for the satisfaction the party 2. If a man Freights out a Ship from London to Cales and assures here he may write to his Correspondent to make an assurance there of the same if the matter comes before Commissioners they may examine the Ensured upon Oath and determine therein according to Law and the Custome of Merchants But at the Common Law the same cannot be but relief must be had in that point according to Equity in Chancery 3. The same is a Court of Equity as well as a Court of Law 4. They may decree against 20 Assurors at one time but at Law they must be sued distinctly but they cannot compel the Defendants to put in Bayl. 5. They may proceed out of Term as well as in Term and if the matter will bear it they may finish a Cause in a fortnights time 6. The Judgments there given are generally upon mature deliberation and by persons well skilled in Maritime affairs and if their Sentence is thought to be unreasonable the Lord Chancellor or Lord Keeper may on Appeal determine the same CHAP. VIII Of Prisage and Butlerage I. What is Prisage where taken and of what II. Merchant Strangers exempted from the same III. When due and the exemption of the Citizens of London from the same IV. What Citizens are capable and where not V. A Forraigner imports and makes a Citizen Executor and dyes whether he shall have the benefit of the Immunity VI. Where a Forraigner sells to a Citizen before but he broken the Vendee shall be chargeable VII Where a Grant to discharge a particular Ship shall be good and where a Grant to particular persons shall be otherwise VIII Of Butlerage what and whom are exempted IX Where the King becomes entituled to those duties X. A Grant to be free of all Customes Impositions c. extends not to Prisage and Butlerage XI Cinque-Ports exempted from Prisage I. PRisage is a certain taking or purveyance for wine to the Kings use The same is an ancient Duty which the Kings of England have time out of mind had and received the manner hath been by taking of every Ship or Vessel that should come into this Realm if ten Tun to have for Prisage one Tun and if it contain 20 Tun or more to have two Tun viz. unum ante doleum and the other deorsum paying 20 s. for each Tun And this ancient Immunity they have enjoyed as a Flower of the Crown and by some has been conceived not grantable away without Act of Parliament But yet in 6 E. 3. fo 3. Case 15. mentions the same to be grantable over II. King Edward the First having laid some Impositions on the Merchants which in Anno 25. of his Reign being taken away with promise that neither he nor his Successors should do any such thing without Assent of Parliament In 31. of his Reign they granted him an encrease of Customes in lieu of which he granted them many Immunities as Release of Prisage c. III. Prisage is not due till the unlading or that which is commonly called breaking of Bulk for the words are de qualibet navi important vini disonerant inde King Edward the Third by his Charter dated 6. Martij Anno Regni primi granted his Royal Charter of discharge to the Major Commonalty and Citizens of London in haec verba viz. Quod de vinis Civium nulla prisa fiat sed perpetue inde essent quieti c. which was afterwards allowed in the Exchequer IV. It is not every Citizen that is capable of this Priviledge but onely those that are Resiant within the City And so it was Rul'd in the case of one Knowls who being a Citizen and free Grocer of London removed his Houshold cum pannis and did dwell at Boistol but yet kept his Shop in London and a Ship of his arriving with Wines at London and being unladen the Prisage was demanded he claymed the benefit of discharge It was adjudged he was not capable of the same for he that will claym the benefit of this discharge ought to be Civis incola Comorans 24 H. 6. A Private Act of Parliament Complaint was made That the Lord Major of London would make Strangers Citizens It was there declared That this benefit to be discharged from payment of Prisage did not extend to such Citizens as were dotati made free but unto those Citizens onely which are comorant incolant and resiant within the City V. If a Forreigner brings a Ship laden with Wines into the Port of London and then makes a Citizen his Executor and dyes he shall not have the benefit of this Immunity from payment of Prisage for these Wines for that they are not bona Civium VI. If a Forreigner arrives with a Ship laden with Wines at a Port with an intent to unlade and before the Goods are entred or Bulk is broken he sells them to a Citizen Prisage shall be paid notwithstanding for it was never the Kings grant to discharge a Citizen in such a manner VII If the King does discharge such a Ship of J. S. being at Sea particularly naming the same from the payment of Prisage and he dyes before the Ship arrives no duty can be demanded But it has been held If a particular person has a grant to him to be discharged of his Goods and he dyes before the arrival the duty shall be paid A Quo Warranto was brought against three Archbishops of York to shew cause why they demanded to have Prisage for Wines brought into the Port of Hull The two first pleaded to have onely the first taste and a pre-emption after Prisage paid But the third pleaded a Charter of 15 E. 2. by force of which he claimed the same and Rul'd not good For though the Charter might be good yet it was held in that case a disclaymer by the Predecessor should bind the Successor And at this day the Duke of Ormond in Ireland hath an Inheritance in the Prisage of Wines by the Kings Charter VIII Butlerage is a Custome due from Merchant-Strangers of 2s upon every Tun of Wine brought into this Realm by them King John granted to the Merchants of Aquitaine Trading for Wines thence into England divers Liberties amongst others Libertatibus concessis Mercatoribus vinetarijs
him on the face and gave him a push on the back and after this he was Registred for a Freeman This being performed the Servant having his head shaven purposely at that time received a Cap as a Token of Liberty Tertullian observes That at this time of their Manumission the Servants received from their Masters a white Garment a Gold Ring and a new Name added to their former By the Laws of England every Subject Born within the Kings Dominions is a Freeman of this Realm as appears by the Grand Charter Cap. 14. yea though he be a Bond-Slave to a Subject But a Stranger Born is no Free-man till the King have made him a Denizon in whose Power alone without the help of any other one may be made Free To be a Freeman of the Realm the place of Birth is held more considerable than the Quality of the Person Yet by the opinion of Hussey Chief Justice in 1 R. 3. fo 4. And in Calvins Case of the Post Nati it is held for Law That if Ambassadors of this Realm have Children Born in France or else where the Father and Mother being Natural Born Subjects the Children are Free of the Realm of England But if either the Father or the Mother of such Children were an Alien then are not those Children Free But the Law is conceived to be otherwise at this day The Statute de Natis ultra mare 25 E. 3. Cap. declares the Issue Born of an English-man upon an English-woman shall be a Denizon for upon the Construction of this Statute it has been adjudged more than once That if an English-man marry a Foreiner and has Issue by her Born beyond Seas the Issue is a Natural Born Subject IX Disfranchising by the Romans called Capitis diminutio was Three fold Maxima Media Minima the least degree was when the Censors pulled a Man from a higher Tribe down to a lower and less Honourable or when by any Censure they disabled a man from suffraging or giving his Voice in the publick Assemblies such as were thus in the last manner punished were termed Aerarii and in aerarios veluti quia omnia alia jura Civium Romanorum preterquam tributi aeris conferendi amiserunt Gellius relates That P. Scipio Nascica and M. Pompilius being Censors taking a view of the Roman Knights observed one of them to be mounted on a lean starvling Horse himself being exceeding fat whereupon they demanded the Reason why his Horse was so lean himself being so fat his Answer was Quoniam ego inquit me curro statius mens servus By the Ancient Laws of England and by the Great Charter no Freeman shall be taken or Imprisoned but by the Lawful Judgment of his Peers that is by Jury Peers for Peers ordinary Juries for others who are their Peers or by the Law of the Land which is always understood by due process of the Law and not the Law of the Land generally for otherwise that would comprehend Bond-men whom we call Villains who are excluded by the word Liber for such Bond-men might be Imprisoned at the pleasure of his Lord but a Free-man neither could nor can without a just Cause nor does the Priviledge extend to private Actions or Suits between Subject and Subject but even between the Sovereign and the Subject Hence it is that if a Peer of the Realm be Arraigned at the Suit of the King for a Murder he shall be tryed by his Peers that is by the Nobles But if he be appealed of Murder upon the prosecution of a Subject his Tryal shall be by an ordinary Jury of 12 Free-holders and as the Grand Charter did and does protect the Persons of Free-men so likewise their Free-hold For by the same Charter it is declared That the King or His Ministers shall out no man of his Free-hold without reasonable Judgment and so it was rul'd upon a Petition in Parliament setting forth that a Writ under the Privy Seal went to the Guardian of the Great Seal to cause Lands to be seized into the Kings Hands and that thereupon a Writ issued forth to the Escheater to seize against the form of the Great Charter upon debate of which the Party had Judgment to be restored the greatest and most Explanatory Act which succeeded in point of Confirmation was that of Edward the 3d. the words are That no Man of what Estate or Condition soever he be shall be put out of the Lands and Tenements nor taken or imprisoned nor dis-inherited nor put to death without he be brought to answer by due process of the Law that is by the Common Law 2. Diminutio media was an Exilement out of the City without the loss of ones Freedom the words of the Judgment or Sentence were Tibi aquae igni interdico 3. Diminutio maxima was the loss both of the City and the Freedom and by his Judgment or Sentence was obliged and limited to one peculiar Countrey all other places in general being forbidden him There was a Fourth kind of Banishment Disfranchising called relegatio which was the Exilement only for a season as that of Ovid's The Laws of England in this matter have some resemblance with those of the Romans for Bracton observes 4 Distinctions 1. Specialis hoc est interdictio talis Provinciae Civitatis Burgi aut Villae 2. Generalis Interdictio totius Regni aliquando est 3. Temporaria pro duobus tribus quatuor aut pluribus annis aut c. 4. Perpetua pro termino vitae exilium est aliquando ex arbitrio principis sicut in exiliando Duces Hertfordiae Norfolciae per Regem Richardum Secundum aliquando per Judicium Terrae ut fit in Casu Piers de Gaviston etiam in Casu Hugonis de le Spencer Junioris qui ambo fuerunt exilit ' per Judicium in Parliamento So likewise was that of the Banishment of the Earl of Clarendon who dyed beyond the Seas X. Abjuration was also a Legal Exile by the Judgment of the Common Law as also by the Statute Law and in the Statute of Westm the second Cap. 35. He which Ravishes a Ward and cannot render the Ward unmarried or the value of his Marriage must abjure the Realm and this is a General Exile And by the Statute made 31 Ed. 1. Butchers are to be abjured the Town if they offend the Fourth time in selling measled Flesh and this is a Special Banishment A man Exil'd does forfeit these things 1. Hee looseth thereby the Freedom and Liberty of the Nation out of which he is Exiled 2. He forfeits his freedom in the Burrough or City where he was free for he which forfeits the Freedom of the whole Realm forfeits his Freedom in every part 3. The Law accounts him as one dead for his Heir may enter and so may his Wife enter into her own Lands and may sue
an Action as a Feme sole 4. He shall forfeit those Lands which he shall purchase in the Realm during his Banishment for he during his Banishment is as much disabled to purchase as an Alien for fit alienigena by his Banishment and he is observed to be in a worse Condition than an Alien for he is marked with Indignatio principis 'T is true he cannot forfeit neither Title of Honour nor Knighthood nor the Lands he had before Exile unless there be special Sentence or Judgment as that of the Spencers If the Father be in Exile this hinders not the Freedom of the Son for the same is not a thing descendable for should it be so then the Banishmens of the Father would make a Forfeiture of the Freedom but the Son has this Freedom by his own Birth as a Purchase and not by the death of his Father by descent Like the Case where J. S. hath many Children and then he confesseth himself a Villain to J. D. in Court of Record yet his Children formerly Born are Free-men and no Villains the Reason is because they were Free by their own Births but the Inheritance is Inthralled because it is to come to the Heir by descent XI A Free-man of a City or Burrough may be made divers ways as my Lord Cooke observes 1. By Service 2. By Birth by being the Son of a Free-man 3. By Purchase or Redemption At Bristol by Marriage Sir John Davies in his Irish Reports observes the same for Law St. Paul was born at Tarsus in Cicilia which was under the obedience of the Romans by vertue of which he challenged the priviledge of a Roman Citizen but it was accounted no more than a National Freedom like that of Calvin who claimed the general Freedom of an English-man being born in Scotland but under the obedience of the King of England but that Challenge made not St. Paul Free of the Private Customs Priviledges and Franchises of Rome no more than Calvins Birth made him a Free Citizen of London to the particular Customs of that City The King by his Letters Patents cannot make one a Free-man of London yet he may thereby make him a Free-man of his Kingdom If one be Born in a City of Parents that are not Free the Child hereby is no Citizen by Birth and if one be born of Free Parents out of the place of Priviledges as London c. he yet is a Free-man by Birth yet in the Charter Granted to Yarmouth the words were concessimus Burgensibus de magna Yarmutha de Villa praedict ' Oriundis that they should have such and such Liberties So that Special words may alter the Case London had many Royal Franchises granted them from time to time and were often by former Kings successively confirmed nor wanted they a share when the great Charter was granted to have their ancient liberties secured nor were the succeeding Princes slack in their Royal grants and confirmations but especially Richard the Second who in Parliament granted and confirmed to them all their ancient customes and liberties with this clause Licet usi non fuerint vel abusi fuerint and notwithstanding any Statute to the contrary amongst the number of their many Priviledges the freedom of the same was accounted of no small importance since in divers Parliaments it was very much aimed at and endeavoured to be impaired but at last they obtained a most gracious and Royal Confirmation in Parliament of their ancient liberties amongst which it is declared that no Merchant being a Stranger to the Liberty of the said City should sell any Commodities within the Liberty of the said City to other Merchant-Strangers nor that such Merchant-Stranger should buy of anyother Merchant-Stranger such Merchandize within the Liberty of the said City without forfeiture thereof saving that any Person Lord Knight c. may buy within the Liberties of any Merchant-Stranger Merchandizes in gross for their own use so that they do not sell them again to any other And as this City by Custom may pre-clude any Person not being free of the same to sell in such manner upon such pain so any other City which are Burroughs or Cities by prescription within this Realm may have the like Custom and the goods sould or bought by such may be subjected to forfeiture but the same cannot be good by Charter or Grant A compleat Free-man is such a one as hath challenged his freedom and taken the Free-mans Oath and is admitted into the Society and Fellowship of the Free-men Citizens and Burgesses otherwise he hath but a bare right to his freedom CHAP. II. Of Aliens as in relation to their Estates real and personal I. Of an Alien his ability and disability in the taking and enjoying of Estates real and personal II. Of his capacity in purchasing and disability to transfer by an hereditary descent III. Of the rules of descents according to the Laws of several Countreys IV. Of descents according to the rules of the Common Law of England lineal and collateral V. Of Impediments in one that is not the medius antecessor VI. Of Impediments in one that is the medius antecessor lineal and collateral VII Of the Statute of Natis ultra Mare and of issues born beyond the Seas VIII The Lord Cokes opinion that if an Allien has issue two Sons Denizons the one purchases Lands and dyes the other cannot inherit them debated and refuted IX Of Foreign births which do not create a disability X. Of Aliens not disabled by Law to bring either real or personal actions XI Of Office that must entitle the King to an Aliens Estate XII Of some particular immunities and other matters relating to an Alien AN Alien is one born in a strange Countrey under the obedience of a strange Prince and State and out of the legeance of the King of England and can have no real or personal action for or concerning Lands and therefore if he purchase Lands Tenements and Hereditaments to him and his Heirs albeit he can have no Heir yet he is of capacity to take a fee-simple but not to hold for the King upon Office found shall have it by his Prerogative So it is if he purchase Lands and dyes the Law doth cast the free-hold and inheritance upon the King But if he purchase or take a Lease for years of a House or Ware-house which is for the accommodating him as a Merchant-stranger whose Prince or State is in League with ours there he may hold the same for that the same is incident to Commerce And in that case if he departs and relinquishes the Realm the King shall have the same so it is if he be no Merchant The like Law is if he takes a Lease of Meadows Lands Woods or Pastures the King shall have the same for the Law provides him nothing but a habitation to Trade and traffique in as a Merchant II. Though he may take
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
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
for a detriment that was occasioned purely by the Laders means 2. 7. 15 Attachment Attachment of the Lading cannot be made in the Masters hand 2. 3 18 Attaint The Law takes notice of the person Subject but of an Alien è cont ' 3 2. 2 No corruption of blood upon an Aâ—…tainder of Pyracy 1. 4. 23 26 Barretry BArretry of the Marâ—…iners who shall be responsible for the same 2. 3. 13 Battel Goods or Ships gain'd therein where the Owners are divested of their property 1. 1. 7 But regain'd by a Ship of Warr the Property is preserved 1. 1. 9 Blanks Filling them up against Law 2. 10. 27 Boats Ship Boat not forfeited by the Pyracy of the Ship 2. 1. 8 The Duty of Boats and all other small Vessels in time of Warr and in Battail 1. 14. 24 Bottomery From whence so called 2. 11. 12 Buoyes Not putting them to Anchors subject the Master to punishment and answer the damage 2. 9. 7 Bulk When the same may be broke 2. 15. 1 Butlerage What and when payable 2. 8. 8 Canon CAnon designed for the Relief of a City or Fleet cannot in a Storm be flung over-board 2. 6. 15 Captives Where they may be justly kill'd 1. 14. 12 How that power is governed 1. 14. 17 Where he that dyes in it is supposed to dye before his being taken 3. 1. 2 Children born before their being taken are free 3. 1. 2 Captive General is immediately the Prince's Prisoner 3. 1. 5 Ports and Cinque-Ports Ports in England 2. 14. 18 Free of Prisage 2. 8. 10 Members and Creeks What are meant by them 2. 14. 7 Within the Body of the County 2. 14. 8 Port of London its extent 2. 14. 9 Clergy Not allowable to a Pyrat for Pyracy on the High Sea 1. 4. 23 But in a Creek or Port it is 1. 4. 24 Commanders Their Duties in time of Fight 1. 14. 13 Commissions Commissions awarded to enquire of Depridations 1. 2. 24 And to give satisfaction 2. 4. 28 Commission for Warr in what respect 1. 3. 5 Commissions qualifie the Caption 1. 4. 14 Communion Communion of Pastures in our first Parents 1. 1. 3 Confederates Differences amongst them how determined 1. 8. 4 Confederates how bound to defend each other 1. 7. 9 Of the Succours they are to lend 1. 7. 15 May ayd one another against one anothers Confederates 1. 7. 16 Consanguinity The various degrees of the same 3. 2. 8 In all Collateral descents except between Brother and Brother the half blood does inherit but between them the half blood does impede 3. 2. 8 Contraband Contraband Goods where the same may be seized 1. 1. 15 Contracts Contracts between Princes though by force oblige 1. 8. 9 Contracts between Merchant and Master where valid and where not 2. 4. 3 6 7 Contract is not determined if the Ship be taken by an Enemy and afterwards retaken 2. 4. 12 Contract for Freight cannot be made with a Marriner 2. 4. 14 Charter-parties settle the Agreement and the Bills of Lading the Contents 2. 4. 7 Contracts where they have their inception from Sealing 22. 11. 9 None of the Ancestor can bind the person of the Successor as to point of slavery 3. 1. 7 Contribution Contribution for Moneys lent on Bottomery 2. 11. 10 Contribution the remainder of the Lading are as tacitly obliged to the same as for Freight 2. 6. 7 Two Ships encounter anawares the Contribution is to be proportionable 1. 6. 10 Contribution shall not be made if the Sayls or Masts are broken or lost in the Storm but if cut down otherwise 2. 6. 12 No Contribution but where the Ship arrives in safety ibid. Contribution in cases of Necessity 3. 5. 26 Contribution a main Ingredient in Leagues and how regulated 1. 7. 9 Contribution cannot be had by one whose Goods are taken by Reprizal 1. 2. 23 Contribution where to be made for the Redemption of the Master 1. 4. 5 Contribution may be paid to both parties 1. 12. 6 7 Corporations When introduced for Merchants in England 3. 5. 2 Of those Trading to India from England and Holland 3. 5. 5 Countermand May be made by the drawer at any time before the money becomes due 2. 10. 22 Courts By the Statute of H. 8. Courts may be erected for the Tryal of Pyracy 1. 4. Where the Admiralty hath Jurisdiction of the principal the Courts at Common Law will remit them their Accessory 1. 4. 28 Court appointed for the Trying of Merchant Strangers Causes according to the Custome of Merchants 2. 12. fol. 303 Customes Goods Wreck't pay no Customes 2. 13. 11 Customing Goods in another mans name the penalty 2. 8. 8 The King is entitled to his Duty upon breaking of Bulk 2. 8. 9 Cannot be imposed without Act of Parliament 1. 12. 1 2 3 May be Fermed out 2. 12. 3 The Antiquity of Customers 2. 12. 5 Customes what is meant by the same 2. 12. 6 Of Magna Custuma and for what given ibid. Parva Custuma on what Considerations given 2. 12. 7 How the same is governed 2. 13. 6 7 Câ—…wards To suffer death without mercy 11. 14. 12 15 17 Damage TO be repaired out of his or their Estate that commit an Injury if not then the same becomes a National Debt 1. 2. 12 Denizen The Issue born of English-man on the Body of a Forraigner beyond Seas is a Natural born Subject 3. 1. 8 Denization by Letters Patents of France remove the total disability but in England è cont ' 3. 3. 11 Two Denizon Brothers one purchases Lands and dyes the other may inherit 3. 3. 11 Not capable of Honour ibid. Derelict Cannot be of any Goods cast over-board to lighten the Ship 2. 6. 15 Of places that are possessed one day and abandoned another make not a Derelict 3. 5. 3 Descrters May be slain by any man by the Lawes of Nations 1. 6. 9 12 15 Coward suffers death without mercy 1. 14. 17 Vide Derâ—…lict Disability Ships disabled in Battail are not to be relieved till the Enemy is beaten 1. 14. 16 Disability of the Father hinders not but one Brother may be Heir to the other 3. 2. 8 No disability in an Alien beinging an Action in Auter Droit 3. 2. 9 An Alien Infant disabled to be a Merchant Trader in England 3. 2. 11 Disability not cured in an Ancestor without actual naming them 3. 3. 3 Discipline Orders must be obeyed and they that break them may be punished though the act succeeds well 1. 14. 14 Disclaimer By the Predecessor shall barre the Successor 2. 8. 7 Discent 1. The Rules that govern them 3. 2. 3 2. Discents according to the Canon Law 3. 2. 4 Impeded in an Ancestor from whom and to whom will hinder the discerit 3. 2. 5 Disfranchise The ancient way of compleating the same 3. 1. 9 Cannot now be done to a Freeman without lawful Tryal 3. 1 9 The various wayes now used by the Laws of England 3. 1. 9 Domiâ—…on
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
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