themselves without prejudice to their condition in this of Commerce the which would be more honourable unto them then to be Usurers and Bankers as in Italy or to impoverish themselves in doing nothing but spend and make consumption of their fortunes and never gathering or laying up II. Hence will grow many advantages both to the publique and private To the publique for that they that should deal in Commerce having means courage and sufficiency for this conduct it would be far greater in the furnishing more Ships to Sea and better armed the which the Estate at need might make use of for the safety of the Publick and would add to the reputation of the Nation in all parts they knowing that an indignity or dammage offered to such would require satisfaction with a strong and powerful hand the which they cannot do who being poor and having but small stocks or what they borrow from Banckers or are indebted for the Cargoe which they send forth have not the courage to hazard themselves and their all in an enterprize that is great Besides such who have honour riches and courage would keep up the reputation of their several Commodities by the not lessening the Market the which the poorer sort to pay Customes Freight Bills of Exchange and other contingent and necessary charges which accompanies the importing they are often forced to mortgage the Cargoe to the Bankers at excessive usury or else to sell for ready money for an inconsiderable gain nay some rather then their wants to be known for ready money will sell for loss all which would be prevented if such Persons of value would apply themselves to a prudent management of the same for whatsoever hazard they run there would be more gotten by such in 2. voyages then the smaller sort in three or four Voyages and by that means it would be the occasion of preventing of many expenses or importuning their Prince with demands nay perhaps they might get more at Sea in one year then in ten at Court Besides experience hath taught and doth daily manifest that where the richest have dealt in this of Commerce it hath enriched both them and the Estate under which they lived and at this day the Examples of the Venetians Portugals Spaniards and Hollanders have made it known unto us III. The consideration of which first gave light to that industruous Nation the Burgundians to procure the Association or Incorporation by John Duke of Brabant of that Ancient Company of the Adventurers Anno 1248 which were then called the Brotherhood of Saint Thomas Becket of Canterbury which being afterwards translated into England was by Edward the III. confirmed and by his Successors Henry the IV. Henry V. Ed. IV. Henry VI. Richard III. and King Henry the Seventh who gave them the name of Merchant Adventurers and from him successively hath their Charter been confirmed down to his sacred Majesty that now is and as this Society is of Ancient estimation so is their Government very commendable IV. The Society of the Company trading to the East-Indies differ from others both as in reference to Persons Members which are at this day many of the principal Nobility of Engalnd as also for that their Adventurers run all into many stocks and is governed and carried all jointly upon benefit and loss they were incorporate Anno 1599. and since then they surrendred their Charter and accepted a new one and are incorporated by the name of Governour and Company trading to the East-Indies their Adventurers run all into one Stock and is governed and carried on upon benefit and loss the same being at this day according to the subscriptions about four hundred thousand Pounds which the several Persons Subscribers may sell transfer and dispose of but they can no wayes take out the same The great Stock may be encreased if the Company shall see occasion so to permit but they are very cautious of the same for that the greater the dividends the more reputation the Stock bears which above all things is to be maintained however directly upon his own account no Person can have above ten thousand Pounds Stock there nor can he have a compleat title till he is made a Free-man of that Society their returns are very profitable and of late very rich and have wany Places of great importance in India as Meslopotam on the Coast of Cormondel Bombay Suratt Fort St. George Bantam c. V. The Dutch having found relief in their distress from the British shoar against their powerful Enemy found also a pattern to carry on Commerce they not being wanting in the imitating the Incorporation of a Company trading to those Places which they possess'd in the East-Indies and therefore in the Year 1602. leave was granted from the Estates to Traffique into those Parts before all others during the space of one and twenty years the which was granted them in consideration of five and twenty thousand Florens which they promised to pay to the Estates during the first ten years thus reduced all into into one Company Amsterdam had one moyety Midleburgh in Zealand a fourth part Delph Rotterdam Horne and Enchusen had either of them a sixth part and the whole Stock of this Union amounted to six millions of Livers or six hundred thousand pound Sterling For the direction of this Trade and the interests of the Associates they have established in either of those Towns a certain number of Administrators at Amsterdam twenty at Midleburgh twelve in either of the rest seven and if any one dyes the Chamber of the Place names three of which either the Estates General or the Magistrate of the Town chooseth one Those Chambers choose Seventeen among the Administrators that is to say Amsterdam eight Middleburgh four Delph and Rotterdam two Horne and Enchusen two and the Seventeen are chosen alternatively sometimes at Midleburgh sometimes at North-Holland the which are called together to resolve jointly of how many Ships and of what Equipage and Furniture they shall make the Fleet which they mean to send and to what Fort or Coast they should go This Assembly is held six years together at Amsterdam and afterwardr two years at Midleburgh and then again at Amsterdam by the Conditions of the accord the Ships must return to the same Port from which they parted and the Spices which are left at Midleburgh and other Chambers is distributed amongst them by the weight of Amsterdam and the Chamber which hath sold her Spices may buy from other Chambers By this Order they have hitherto continued this Commerce with reputation not as simple Merchants only but as if they were Soveraigns they have made in the Names of the Estates Alliances with many of the Princes of those parts as with the Kings of Sian Quadoen Patam Johor the Heir of Mataca Bornean Achin Sinnatra Baretan Jocotra and other Kings of Jatta they have made themselves absolute Masters of the Island of Amboina but by what means Where they have a
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
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
savctiori Theologiae consentaneum Grotius de Jure belli lib. 3. cap. 2. ss 4. And seems to be of opinion by the Law of Charity that the prosecution of right for a Man's Goods which inevitably must be by the life of Man ought to be omitted Lib. 2 cap. 10. Livy lib. 2. Bartol in Leg. si quid Bello D. de cap. Ang. Salic in Leg. ab hostibus C. de Capt. Const. Gall. 20. tit 13. Art 24. Consul Maris 287. Trin. 17. Car. I. in B. R. Marsh Report Res qu infra Praesidia perdâ—…ctae nondum sunt quanquam ab hostibus occupatae Dominum non mutarunt ex Gentium Jure Mich. 32. Eliz. Somers and Sir Ric. Bulckleys C. Leonard 2. part 181. Trin. 3. Jac. in B. R. Rols fo 530. Sir Francis Moors Rep. 1. Jac waltham vers Mulgar 3. Eliz. cap. 5. 12. Car. II called the Act of Navigation Gregorias l. 〈◊〉 Fitz. H. N. B. fo 162. Old N. Bre 103. Reg. Orig. fo 176. * Seneca Benef. cap. 19. Pat. 26. E. 3. pars 1. M. 16. Dorso Pat. de An. 6. H. 5. pars 1. 〈◊〉 M. 9. Dorso De caeteris personis arrest capiend Leg. servus 〈◊〉 de Serv. export DD. ad Leg. si quis in servitutem D. de fur Leg. prohib c. de Jure Fisci Bartol in Leg. ut vim D. de just Jure n. 7. 8. Cicero Offic. 3. The Son of Cato Censorius having served as a private Soldier of pay under Pompilius the Legion being disbanded the Young Man was resolved to remain with the Army though but a Volunteer Cato wrote to Pompilius the General that he should give him an Oath the second time giving this reason Quia priore amisso jure cum hostibus pugnare non poterat Cicero sets down the very words of Cato to his Son whereby he admonisheth him not to enter into Battle Neque enim jus esse qui miles non sit pugnare cum hoste Cic. Offic. 1. Leg. Desertorem D. de rei milit C. Quando liceat unicuique Leg. 1 2. This matter was highly debated at the Councel board on the complaint that of Landy then Embassador for that Republique at London an 1629. Vide Hist. Republic Venet. fo 170. Treaty Marine at Lond. 1. of Decemb. 1674. In the Commission must always be mentioned that they have given such security Art 13. These Articles for their excellency are fit to be a Standard to all the Nations of Europe Art 14. In hostium esse partibus qui ad bellum necessaria hoste administrat Consulat Maris editus est Lingua Italica in quem relate sunt constitutiones Imperatorum Graeciae c. cujus librâ—… tit 276. Cambden an 1791. by the fourth Article at the Treaty at Lond. 1674 those Goods that may be used out of war as in war exceptShips may not upon any account be call'd prohibited nor subject to a condemnation except carry'd to Places besieged Art 4. See John Meursius his Danish History concerning the Prohibiting of Goods by those Northern State Vide postea the Grand prise condemned by Queen Elizabeth in tit Customs And Persons so attempting to releive an enemy may in some cases be punished but if the same be done by necessity of obedience though the parties are much to be blamed yet are they not to be punished and so it was with those which releived Sir John Old-Castle with provisions being taken were discharged By the 7. Article in the Treaty at London if the Skipper will deliver out the prohibited Goods the Ship may proceed with the rest in their Voyage or course as they please and the Ship shall not be brought into Port. Nec reus est mortis alienae inquit Augustinus qui sui possessioni murorum ambitum circumduxit si aliquis ex ipsorum usu percussus intereat Publ. Epist. 154. Leg. 5. de Nâ—…viul C. lib. 3. Trin. 3 Jac. in B. R. Rolls 5. p. Abridg. f. 530. Pompon Leg. cum loca D. de Religiosis Tacitus Anal. 13. Wars and Victories most part consist in taking and overthrowing Cities which work is not done without injury of the Gods the walls of Cities and Temples of the Gods partake in the same ruin the Citizens and Priests equally slaughtered nor is the rapine of sacred riches and prophane unlike so many are the sacriledges of the Romans as their Trophies so many are their Triumphes over Gods and Nations and then goes further Tot manubiae quot manent adhuc simulachra captivorum deorum Mox bene quod si quid adversi urbibus accidit â—…dem clades Templorum quae moenium suerant Even upon the same reason that the instruments of Husband-men are not to be taken for a pledge by the Civil nor Common Law Leg. exeunt C. quae res pign Coke sup Littleton 47. 〈◊〉 Cor. 9. 7. If the offenders could be found they ought to be yeilded up to Justice and if they have any Estate the sâ—…me ought to go towards the reparation of the dammage Caution is commonly taken upon the giving forth of such Commissions to prevent the same if possible They are generally restrained by Proclamation when a War breaks forth and commanded that none presume to set forth without a Commission Constit Galliae tom 3 tit 3. constitutione â—…nni 1583. cap. 44. Vide etiam tom conconstit 3 tit 2 constit Anni 154â—… cap. 44. Vide 2â—… Art at the Treaty at Breda between England and Holland and the 15. Article in the Marine Treaty at Lond. 1674. †Trin. 7. Jac. in B. R. Rolls f. 530. Vide Sir Francis Mâ—…ores Reports 1 Jac. Waltham versus Mulgarâ—… Leg. Hostes de verb. signif Leg. Hostis de Captivis Tacitus Annal. 3. Câ—…sar lib. 3. de Bello Civ Hist. Republ. Venice f. 91. ss ad Legem Rhod. de jactu l. 2. §. si navis a Pyratis redemptae Leg. Bona sides D. Expos. On a Commission grounded on the Stat. awarded Rott Admir 28. Eliz. m. 23. Rott Adm. anno 28. Eliz. m. 24. Normandy was lost by King John and out of the legeance of the King of England they were as now accounted Aliens 40. Assise placet 25 p. Shard Vide 2 H. 5 cap. 60. Selden Mare Claus. lib. 1. cap. 27 Case of Reginor Grimbald in tempor Ed. 1 Cited in 4. Inst f. 142. in c. of the Admiralty Injicere manum parcae traâ—…erunt debitum sibi sermone usus est juris nam manus injectio dicitur quoties nulla judicis aâ—…ctoritate rem nobis debitam vindicamus Servius â—…1 Aeneidos Leg. extat D. quod metus Honorius Theodosius idcirco Judiciorum vigor Jurisque publici tutela in medio constituta ne quis quam sibi ipsi permittere valeat ultionem Leg. nulli C. de Judaeis Plutarch in Caesar. Ralph Williams indicted for the murder of one John Terrey and Bridges Black and others as accessory Rott Admir 28 Eliz. M. 24. Yel f. 134 135. Res quae intra Praesidia
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
abuses are up on such an account legally tollerated In omnibus rebus vetustas ipsa plurimum habet dignitatis ita ut Massalienses quorum praestantissima creditur fuâ—…ssa Respublica laudentur to nomine quod gladio ad puniendos sontes usi sint eodem a condita Urbe quo indicarent in minimis quoque rebus antiquae consuetudinis momenta servanda Proxime enim ad demum accidit Antiquitas aeternitatis quadam imagine Grot. de Antiq. Rep. Batav in Praefat. Ceteris mortalibus in eo stare consilia quid sibi conducere putent Principium diversam esse sortem quibus praecipua rerum ad summam dirigenda Tacitus Annal. l. 4. †Vide the Earl of Shastsbury's Speech to the Parliament 1672. Si fama tua videtur necessaria rectam muneris tui administrationem non potest condonare Lessius de Inst. l. 2. c. 11. dub 24. §. 26. Selden Mare Clausum l. 2. cap. 24. Fitzherberts protection tit 46. Seld. ibidem c. 23. Co. 4. Iustit fo 142. Vide part of the Record in fo 54. And the case 29 Eliz. in B. R. Sir John Constables Leonard 3. part 72 the reason of the opinion there is mistaken for the right unto the Sea ariseth not from the possession of the shores for the Sea and Land make distinct Territories and by the Laws of England the Land is called the Realm but the Sea the Dominion and as the loss of one Province doth not infer that the Prince must resign up the rest so the loss of the Land Territory doth not by concomitancy argue the loss of the adjacent Seas I is no more necessary that every Sea Town should command 100 miles at Sea then that each City should command 100 miles by Land Julius Paucius de Dom. maris Adriatici Anno Domini 1600. Anno Domini 1609. Anno Domini 1636. Will. Fulbecks Pandects of the Law of Nations c. 4. The King against Sir John Byron Bridgman fo 23 24 25. Vide postea in Chap. of Customs June 30. anno 1598. Selden lib. 1. cap. 11. Alber. Gentil Hisp. Advocat l. 1. c. 14. vide Mr. Secretary Cookes Letter to Sir William Boswell April 16 1635. * The fight of the Dutch with the Spanish Fleet in the 1639. Downes Scilicet hoc factum Hollan dorum est contra justitiam omnem pro certo contra reverentiam qua partibus territoriis debitur alienis Alâ—… Gent. Hisp. Advocat l. 1. 3. 14. Anno Domini 1552. JunÌ„e 2 and 3. About the 8 of â—…g 1653 †Offered to Queen Eliz. Cette-cy entre autres merite bien une consideration speciale Que la conjunctiondesdits Pays de Hollande Zelande Frize des Villes de l'Escluz Ostende in Flandres avec les Royaumes de vostre Majesté emporte soit l'Empire de la Grande Mer Oceane par consequent une asseurance Felicité perpetuelle pour les Subjects de vostre Serenissime Majesté John Stow Supplement to Holling shed An. Dom. 1585. Vide Sir Walter Raleigh lib. 5. cap. 2. §. 2 3. Enna aut malo aut necessario facinere retenta Livy lib. 24. * F. de Navibus non excus C. l. 11 tit 3. and Pekius on the same Law Quidni enim inquit Cicero quando scire detremento sue potest alteri communiâ—…t in iis quâ—… sunt accipienti utilia danta non molesta 1. de Offic. 1. * De expeditione Cyri. 10 Ed. m. 16. 12. * 23 Ed. 1. Rott 77. in the Exchequer 12 E. 3. in the Black-Book of the Admiralty p. 26 and 27. 6 Joh. m. 11. 9. Joh. m. 3. 24. Ed. 2. m. 17. 11 R. 2. m. 13. Rot. Franc. De Offic. Admiral Angliae per Roughton Artic. 10. The Black-Book of the Admiralty fo 28 29 157 158. 15. R. 2. c. 3. Cro. Arg. of Hampdens C. called the Ship money C. fo 79 to 100. Spelmanni Cnocil Tom. fo 520 521. Spelmanni fo 528 expeditio Navalis Rot. Scotiae 10 E. 3. m. 2. to 17. and then to 34. intus dors to 28. 1 Eliz. cap. 13. Vide Stat 16. 17 Car. I. c. 15. 2 3 P. M. C. 16. Vide Sir Henry Spelmans Gloss. in tit Admirâ—… Lambert Archeion tit Admiral fo 42. Exodus 21. 6. Inst. de Jure person §. servi autem Gell. l. 2. C. 7. Tacitus Co. 〈◊〉 Inflit. fo 358. 2 E. 1. Memb. 18. Rott Pat. 1 E. 1. m. 17. Ro. sin 31 E. 〈◊〉 num 44. Ro. pat 17 H 6. Ro. Cla. indors Vide the Case of Bates in Lanes Reports fo 4. Co. 6. part Case of Souldier Vide the 1. Institutes fo 71. And the Stat. of which provides punishment for those Watermen which shall hide themselves does evidence what the common Law was as to the right of pressing which certainly would never punish those whom they could not press †2 Aprilis 49 E. 3. in the Black-Book of the Admiralty 32 33 34 Art and fo 69. Art 10. The Black-Book of the Admir f. 17. Lamb. inter Leg. Edovardi f. 139. 13 Car. 2. cap. 9. †Non solis ducibâ—…s aliisque pâ—…tentibus innasci solet atque immorari bene agendi propositum sed cuique volenti licet honestum est ejus qua vivit Reâ—…publicae mali commoreri publicas utilitates pro suis viribus promoveri Vide Grotius l. 2. c. 20. †That is as to entitle him to Clergy and so it was ruled by all the Judges in B. R. M. 23 Car. 2. in the Case of one found specially at Surrey Assizes before Mr. Justice Twisden who slew the adulteror in the very act Vide August Civit. Dei citatum C quicunque causa 23 qu. 8. An. 25. Eliz. Co. Litt. f. 74. Code Justin. tit quando liceat unicuique It was in force in England till the beginning of the Reign of Edw. 3ds time Co. Inst 128. B. 13 H. 4. fo 4 5. 37 H. 6. fo 3. Jugurtha taken by his Father in Law Bocchus and delivered to the Romans Charles the 7th of France at a personal Treaty with Duke of Orleans 〈◊〉 slew the Duke though a Soveraign Prince Meyer l. 15. Phil. Comines lib. 4. c. 9 10. * As that between Edward the 4th and Lewis the 11th in the Territories of the Duke of Burgundy Vide Aemilius Paulus in History of France and Ferron his supply of the same of the Life of the Duke of Orleans afterwards Lewis 12th upon the failer of issue male of Charles the 8th Julius Ferretus de legatis Principium de 〈◊〉 side 〈◊〉 †The Leagues between the Crown of France and Spain are commonly between Kings and Kings Realm and Realm and Man and Man of their subjects and hath in time past been lookâ—… upon to be the firmest of Alliances Phil. Comines lib. 2. cap. 8. 9 E. 4. 2. a. The League then made with the Scots and likewise between Ed. 4th and the Duke of Burgundy Phil. Comin lib. 3. c. 6. * Rot. Pat. 4.