hourly before our eyes in those vast immensities that are daily appropriating and a planting in America from hence we learn what was the cause for which Men departed from the Primitive communion of things first of movables and then of immovables also to wit because when not content to feed upon that which of it self and the Earth singly brought forth to dwell in Caves to go naked â—…or clad with rinds of trees or skins of Beasts they had chosen a more exquisite kind of life there was need of Industry and using of Art in those matters which they should give themselves up to so likewise from hence we learn that Men not content to live in that innocent state of community how things went into Property not only by theact of the mind for they could not know the thoughts of one another what every one would have to be his own that they might abstain from it and many might desire the same thing but by a certain Copenant either express as by division or tacit as by occupation for so soon as Communion did not please them and division was not made it ought to be supposed an agreement amongst all that every one should have proper to him self what he seized on for every one might prefer himself before another in getting those things useful for the accommodating of Humane life Nature not being repugnant to the same IV. And though Property may seem to have swallow'd up all that right which arose from the common State of things yet that is not so for in the Law of Dominion extream necessity seems excepted Hence it is that in Navigation if at any time Victuals fail what every one hath ought to be brought forth for the common use and so in a Fire I may pull down or blow up my Neighbors House to save mine destroy the Suburbs to raise Lines or Forts to preserve the City thereby dig in any Mans Grounds for Salt-Peter cut in pieces the Tackling or Nets upon which my Ship is driven if it cannot be disintangled by other means all which are not introduced neither by the Civil Law nor the Municipal Laws of Countrys but are expounded by them with their proper diversities V. Nor is Property so far instated in Man but the same may again be devested by such means as stand with the Law of Nature and Nations and first by War the causes of which are assigned to be three Defence Recovery and Revenge But then such War must be just and he that undertakes it must be a Soveraign the just causes to make a War are our Princes or Countreys defence and that of our Allies the satisfaction of our injuries or theirs our just pretentions to an Estate or Right Divines have added another not only the defence of Religion but its advancement and propagation by the way of Arms and some the extirpation and rooting up a contrary Certainly War is too rough a hand too bad a means to plant Piety Sicut non Martyrem poena sic nec sortem pugna sed causa As it is not the punishment that makes the Martyr so it is not fighting that declares a valiant Man but fighting in a just cause in which who so shall resolvedly end his Life valiantly in respect of the cause that is in the defence of his Prince Religion or Country ought to be numbred amongst the Martyrs of God VI. War by the Laws of England is accounted when the Courts of Justice are shut up and the Judges and Ministers of the same cannot by Law protect Men from violence nor distribute Justice So when by Invasion Insurrection Rebellions or such like the current of Justice is stopt and shut up Et silent Leges inter arma then it is said to be time of War and the Tryall of this is by Records and Judges of the Courts of Justice and not by a Jury the Kings Standard appearing in the Feild or at Sea does likewise denote a War and if the Rebells against whom the Kings Host marches breaks a Prison the Goaler is not lyable for they are not such Rebels as are capable of being supprest by the ordinary Ministers of Justice but the subject matter is now only touching forraign War or that which is commenced for Dominion or Right or for the maintaning of the same in our peaceable possession according to Justice VII By the Law of Nature in such a War those things are acquired to us which are either equall to that which being due unto us we cannot otherwise obtain or else is much a mark as does infer damage to the guilty part by a fit measure of punishment And by the Laws of Nations not only he that wageth War on a just cause but every one in solemn War and without end and measure is master of all he taketh from the Enemy in that sense that by all Nations both himself and they that have title from him are to be maintained in the possession of such things which as to external effect we may call Dominion Cyrus in Xenophon it is an everlasting Law among Men that the Enemies City being taken their Goods and Money should be the conquerors for the Law in that matter is as a common agreement whereby the things taken in War become the Takers from the Enemy are judged to be taken away those things also which are taken away from the subjects of the Enemy and Goods so taken cannot by the Law of Nations be properly said taken but when the same are out of all probable hopes of recovery that is as Pomponius observes brought within the bounds or guards of the Enemy for says he such is a Person taken in War whom the Enemies have taken out of our and brought within their guards for till then he remains a Citizen and as the Law of Nations is the same reason of a Man so likewise of a thing and therefore Goods and Merchandize are properly said to be the Captors when they are carried inâ—…ra Praesidia of that Prince or State by whose Subject the same were taken or into the Fleet or into a Haven or some other place where the Navy of the Enemy rides for then it is that the recovery seems to be past all hope And with these Laws agrees the Common Law of this Realm which calls such a taking a Legalis Captio in Jure Belli and therefore in 7. R. 2. an action of Trespass was brought for a Ship and certain Merchandize taken away the Defendant pleaded that he did take them in le haut Mere oâ—… les Normans queuâ—… sont Enemies le Roy and it was adjudged that the same Plea was good In the year 1610 a Merchant had a Ship and Merchandize taken by a Spaniard being an Enemy a month after a Merchant Man with a Ship called The Little Richard retakes her from the Spaniard it was adjudged that such a possession of the Enemy divested the Owner of
made of the Danes Goods in his Ship the Dane afterwards coming into England and having intelligence of the matter prosecutedthe Fisherman in the Admiralty and although Ignoramus was found yet they there detained him upon which a Habeas corpus was prayed but denyed by My Lord Coke Chief Justice for no other reason but because the truth of the matter was opened which gave the Court cause to supect him of Pyracy otherwise if he had moved barely upon the Ignoramus found quod nota Pasch. 13 Jac. in B. R. the King vers Marsh Bulstrod 3. part fo 27. CHAP. V. The Right of the Flagg as to the acknowledging the Dominion of the British Seas I. Considerations general as in reference to the same II. Whether Princes may have an exclusive property in the Sea III. That such an exclusive Dominion may be and proved IV. Of the Sea whether capable of Division as the Land general V. Considerations general as in reference to Maritime Cities touching Sea Dominion VI. Of the Sea by reason of its instability whether capable of subjection VI. Of the Dominion of the British Sea asserted long before and ever since the Conquest of this Isle by the Romanes VIII The duty of the Flagg but a consecutive acknowledgement of that right and of the Ordinance of Hastings declaring that Customary obeysance IX Considerations had on some Treaties in reference to the asserting the duty of the Flagg X. Of the extent how far that duty is required and payable XI Of the duty of the Flagg not a bare Honourary salute but a Right XIII Of the importance and value of the same as well in Nations Forraign as in England XIII Of the duty of the Flagg not regarded as a civility but commanded as a duty XIV Of the importance of that acknowledgement I. AFter the Writings of the Illustrious Selden certainly it 's impossible to find any Prince or Republique or single Person indued with reason or sence that doubts the Dominion of the British Sea to be intirely subject to that Imperial Diadem or the duty or right of the Flagg which indeed is but a consecutive acknowledgment of that antient Superiority yet there has not been wanting some who though they have not questioned the former have highly disputed the latter But there are some fatal periods amongst our Northern Regions when the Inhabitants do become so brutal and prejudicate that no obligation of Reason Prudence Conscience or Religion-can prevail over their passions especially if they become the devoted mercinaries of an implacable Faction in opposition to all that can be called either just or honourable we need not reap up the carriage of that late insolent Son of a Tallow Chandler whose deportments made him no less insupportable at Home then he was amongst Forreign Princes the testimonies of his greatest parts and abilities being no other then monuments of his malice and hatred to this Nation and records of his own folly But Princes are not to be wrangled out of their antient Rights and Regalities by the subtil argument of Wit and Sophistry nor are they to be supplanted or overthrown by malice or Arms so long as God and Good Men will assist in which His Sacred Majesty did not want when he asserted his Right with the Blood and lives of so many thousands that fell in the dispute II. That Princes may have an exclusive property in the Soveraignty of the several parts of the Sea and in the passage Fishing and shores is so evidently true by way of fact as no Man that is not desperatly impudent can deny it the considerations of the general practise in all Maritime Countries the necessity of Order in mutual Commerce and the Safety of Mens persons Goods and lives hath taught even the most Barbarous Nations to know by the Light of Human reason that Laws are as equally necessary for the Government and preservation of the Sea as those that negotiate and trade on the firm Land and that to make Laws and to give them the Life of Execution must of necessity require a Supream Authority for to leave every part of the Sea and shores to an Arbitrary and promiscuous use with a correcting and securing power in case of wrong or danger is to make Men with the like condition of the Fishes where the greater devour and swallow the less And though the Sea is as a High-way and common to all yet it is as other High-waies by Lands or great Rivers are which though Common and Free are not to be usurped by private Persons to their own entire service but remain to the use of every one not that their Freedom is such as that they should be without protection or Government of some Prince or Republique but rather not exclude the same for the true Ensign of liberty and freedom is protection from those that maintain it in liberty IV. And as the Sea is capable of protection and Government so is the same no less then the Land subject to be divided amongst Men and appropriated to Cities and Potentats which long since was ordained of God as a thing most natural whence it was that Aristotle when he said That unto Maritime Cities the Sea is the Territory because from thence they take their sustenance and defence a thing which cannot be unless part of it might be appropriated in the like manner as the Land is which is divided betwixt Cities and Governments not by equal parts or according to their greatness but according as they are able to Rule Govern and defend them Berne is not the greatest City of Switzerland yet he hath as large Territory as all the rest of the twelve Cantons put togetether The Cities of Noremberg and Genoa are very rich and great yet their Territories hardly exceed their Walls and Venice the Mistress and Queen of the Mediterranian was known for many years to be without any manner of possession in the firme Land V. Again on the Sea certain Cities of great force have possessed large quantities thereof others of little force have been contented with the next Waters Neitheir are there wanting examples of such notwithstanding they are Maritime yet having fertile Lands lying on the back of them have been contented therewith without ever attempting to gain any Sea Dominion others who being awed by by their more mighty Neighbours have been constrained to forbear any such attempt for which two causes a City or Republique though it be Maritime yet it may remain without any possession of the Sea God hath instituted Principalities for the maintenance of Justice to the benefit of Mankind which is necessary to be executed as well by Sea as by Land Saint Paul saith that for this cause there were due to Princes Customs and Contributions It would be a great absurdity to praise the well Government and defence of the Land and to condemn that of the Sea nor doth it follow because of the vastness of the Sea that it is
that to be when the matter in controversie is tam quod merita quâ—…m quod modum praecedendi not doubtful for in doubtful matters the presumption is ever for the Judge or Court But the Reprisal must be grounded on a wrong Judgement given in matters not doubtful which might have been redressed one way or other either by the ordinary or extraordinary power of the Country or place and the which was apparently perverted or deny'd But if the matter be doubtful then otherwise for in causes dubious or difficult there is a presumption always that Justice was truly administred by them who were duely elected to publick Judgements XI And yet in this later case some who are of opinion that if the cause were dubious and if the Judgement were against apparent right the Stranger oppressed is let into his satisfaction and the reason is because the Judge's authority is not the same over Forraigners as over Subjects for the reason above mentioned If an English Merchant shall prosecute a Suit in the Ordinary Courts of Law beyond Seas and Sentence or Judgement shall pass against him from which he appeals to the Supream Judgement and there the first Judgement or Sentence is affirmed though the Complainant hath received a Judgement against the real right of the cause yet this will be no cause for Letters of Reprisal though perhaps it may occasion Letters of Request if there be strong circumstances for the same to have a rehearing of the cause But if an English Man shall recover a debt there and then the Officer having the debtor in custody will wilfully let the Prisoner escape and then become insolvent the same may perhaps occasion Reprisal In England if a Forraigner brings an Action personal against I S. and the matter is found special or general and the Party prays Judgement and the Court refuses it and then the Deffendant dyes and with him the Action the nature of it being such the Party is here without remedy the same may occasion Letters of Reprisals if it be accompained with those circumstances that evince an apparent denyal of Justice i. e. as putting it off from Term to Term without cause An English Man pursues his right in the legal Courts beyond Seas and the Military Governor opposes the prosecution and by force conveys away the debtor and his Goods the Sentence or Judgement is obtained its ultimate end being Execution being thus frustrated may occasion Letters of Reprisal XII Persons murdered spoiled or otherwise dampnify'd in hostile manner in the Territories or places belonging to that King to whom Letters of Request are issued forth if no satisfaction be returned Letters of Reprisal may issue forth and the Parties petitioners are not in such cases compelled to ressort to the Ordinary prosecution But the Prince of that Country against whom the same are awarded must repair the damage out of his or their Estates who committed the injuries and if that proves deficient it must then fall as a common debt on his Country XIII Such Letters of Request generally allot a time certain for damages to be repaired if not Reprisals to issue forth XIV It is not the place of any Mans Nativity but his domicil not of his Origination but of his Habitation that â—…bjects him to Reprise The Law doth not consider so much where he was Born as where he lives not so much where he came into the World as where he improves the World If therefore Letters of Reprisal should be awarded against the Subjects of the Duke of Florence and a Native of Florence but denizied or Naturalized in England should have a Ship on a Voyage for Leighorn if a caption should be made the same is not lawful nor can the same be made prise XV. Nor doth it any where appear that Reprisals can be granted on misfortunes happenning to Persons or their Goods residing or being in Forraign parts in time of War there for if any misfortune happens or is occasioned to their effects or to their Persons then they must be contented to sit down under the losse it being their own faults they would not fly or relinquish the place when they fore-saw the Country was subject to the spoil of the Souldiers and devastation of the Conqueror The factions of the Guelfs and Gibellins in Florence warring against each other The Guelfs obtaining the Victory and thrusting the Gibellins out of it after they had taken the City Domum cujusdam Hugonis de Papi in hoc Regno Angliae demorantae diruerunt and plundred his Goods therein qui Hugo supplicavit Dom. Regi ut inde Itali Mercatores of that faction and City then in England emendas hic sibi facerent upon which adjudicatum fuit quod dicti Mercatores dicto Hugoni satisfaciant pro damnis susceptis destructione domus suae upon which a Writ of error was brought and the Judgement was reversed in these words Quod non est consuetudo Angliae de aliqua transgressione facta in aliena Regione tempore Guerrae vel alio modo consideratum est quod totus processus ejus effectus provocentur c. XVI By right for so it is now called of rendring like for like there are many Persons exempted and those whose Persons are so priviledged have also protection for their Goods some by the Laws of Nations some by the Civil Law others by the Common Law among which Embassadors by the Laws of Nations their retinue and Goods are exempt coming from him who awarded the Reprise the Laws of Nations not only providing for the Dignity of him that sends but likewise the security going and coming of him that is sent Nor against those that travel for Religion nor on Students Schollars or their Books nor on Women or Children by the Civil Law nor those that travel through a Country staying but a little while there By the Canon Law Ecclesiastical Persons are expresly exempt from Reprisals A Merchant of another place then that against which Reprisals are granted albeit the Factor of such Goods were of that place are not Subject to Reprisals XVII Ships driven into Port by storm or stress of weather have an exemption from the Law of Reprisals according to the Jus commune but by the Law of England otherwise unless expresly provided for in the Writ or Commission But if such Ship flyes from his own Country to avoid confiscation or some other fault and is driven in by stress off she may then become subject to be prize But it is not lawful to make seizure in any Ports but in his who awarded the Reprisal or his against whom the same issued for the Ports of other Princes or States the Peace of them are to be maintained XVIII Ships attaqued by those that have Letters of Reprise and refused to be yielded up may be assaulted and entered and though it may fall out not by intention but by accident that some of those that so
dissembled or connived at or else the Ambassadour be commanded to depart the Realm and if the crime be cruel and publiquely mischievious the Ambassadors may be sent with Letters of Request to his Master to inflict punishment according to the offence So likewise in the precaution of a great mischief especially publique if there be no other remedy Ambassadors may be apprehended and executed and if they oppose by force of Arms they may be slain In the Bishop of Rosses Case An. 13 Eliz. the question was An Legatus qui rebellionem contra Principem ad quem Legatus concitat Legati Privilegiis gaudeat non ut hostis poenis subjaceat and it was resolved that he had lost the Priviledge of an Ambassador and was subject to punishment nor can Ambassadors be defended by the Law of Nations when they commit any thing against the State or Person of the Prince with whom they reside And why Ambassadors are in safety in their Enemies Countries and are to be spared when they commit offences is not so much for their own or Masters sake but because without them there will never be an end of hostility nor Peace after Wars neither is the Name or Person of an Ambassador so inviolable either in Peace or in time of War but there may be both a convenient time and a good occasion to punish them and this standing with the Laws of Nations VII The Signiory of Venice understanding that certain Traytors who had revealed their Secrets to the Turk were fled for protection into the House of the French Ambassador at Venice sent Officers to search the Ambassador's House but the Ambassador refusing them enterance the Senate commanded certain Cannon to be brought out of the Arsenal to beat down his House which when he saw planted he surrendred up the Traytors 1 The Ambassadors of Tarquins Morte affligendos Romani non judicarunt quanquam visi sunt ut hostium loco essent jus tamen Gentium voluit 2 The State of Rome though in case of most capital crimes exempted the Tribunes of the People from question during the Year of Office 3 The Ambassadors of the Protestants at the Councel of Trent though divulging there the Doctrine of the Church contrary to a Decree there enacted a crime equivalent to Treason yet stood they protected from any punishment It is generally consented by all the Civilians That Legis de jure Gentium indictum est eorum corpora salva sint propter necessitatem Legationis ac ne confundant jura commercii inter Principes 4 Viva the Popes Legates was restrained by Henry the Second for exercising a Power within his Realm not allowed or admitted of by the King in disquiet of the State and forced to swear not to act any thing in praejudicium Regis vel Regni 5 On the other hand it has been answered that they are by the Laws of Nations exempted from Regal Tryal all actions of one so quallified being made the act of his Master or those whom he represents until he or they disadvow and injuries of one Absolute Prince or State to another is factum hostilitatis and not Treason the immunity of whom Civilians collect as they do the rest of their grounds from the practise of the Roman State deducing their Arguments these examples The Fabii Ambassadors from Rome were turn'd safe from the Chades with demand of Justice against them only although they had been taken bearing Arms with the Ethurian their Enemies Titus Liv. 2. Dec. 6 King Edward the Second of England sent amongst others a French Gentleman Ambassador into France the King upon this arraigned him as a Traytor for serving the King of England as Ambassador who was his Enemy but the Queen procured his pardon 7 Henry the Third did the like to one of the Popes Ambassadors his Colleague flying the Realm secretly fearing timens pelli sui as the Records has it Edward the First restrained another of the Popes turbulent Embassadors untill he had as his progenitors had informed the Pope of the fault of his Minister and received satisfaction for the wrongs 8 Henry the Eighth commanded a French Ambassador to depart presently out of the Realm but because he was the professed enemy of the Seat of Rome 9 Lewis de Prat Ambassador for Charles the Fifth was commanded to his house for accusing falsly Cardinal Wolsey to have practised a breach between Henry the Eighth and his Master to make up the amity with the French King 1523. 10 Sir Michael Throgmorton by Charles the Nineth of France was so served for being too busie with the Prince of Condy his faction 11 The Popes Ambassador at Paris was arraigned for practising certain Treasons in France against the King in the Parliament of Paris and was there found guilty and ccommitted to Prison 12 Doctor Man in the Year 1567 was taken from his house at Madrit in Spain and put under a Guard to a straighter Lodging for breeding a scandal as the Condo Teri said in using by Warrant of his place the Religion of his Countrey although he alledged the like permitted to Guzman de Silva their Ambassador in England and to the Turke no less then in Spain 13 Francis the First King of France sent Caesar Trâ—…gosus and Anthony Rincone Ambassadors to the Turk they were surprised by the Armies of Charles the Fifth on the River Poe in Italy and were put to death the French King complained that they were wrongfully murdered but the Emperor justified their death for that the one being a Genois and the other a Milanois and his Subjects feared not to serve the King his Enemy 14 Henry the Eighth being in League with the French and at enmity with the Pope who was in League with the French King and who had sent Cardinal Poole to the French King of whom King Henry demanded the Cardinal being his Subject and attainted of Treason sed non praevaluit 15 Samuel Pelagii a Subject to the King of Morocco pretended that he was an Ambassador sent unto the States General of the United Provinces he came to them and accordingly they did treat with him afterwards he departed and being upon the Sea he did take and spoil a Spanish Ship and then came into England the Spanish Ambassador here having received intelligence of the spoliation caused his Person to be seized upon intending to proceed against him as against a Pyrat and imprisoned him and upon conference with the Lord Coke Dordridge and other Judges and Civilians they declared their opinions That this Caption of the Spaniards Goods by the Morocco Ambassador the same is not in Judgement of Law a Pyracy in regard it being apparent that the King of Spain and the King of Morocco are enemies and the same was done in open Hostility and therefore in Judgement of Law could not be called Spoliatio sed legalis Captio and a Case out of 2 R. 3. fo 2.
neither to any other to whom the King hath granted such Royal Priviledge The reason why the Laws were so strictly declared by the Romans was for by the Lawes of Rhodes if any Ship had become Wreck though all the persons were saved and alive yet the Ship and Goods became seizeable by the Lords But the same being Barbarous was afterward repealed and abrogated as well by those Emperours in their Territories as here in England the first by the Judgment of Oleron which provided in such misfortune That if the Merchant Marriners or Merchants or any of these escape and come safe to Land the same was not to be accounted Wreck The Emperour Constantine the Great sayes in this case if any Ship at any time by any Shipwreck be driven unto the shoare or touch at any land Let the Owner have it and let not my Exchequer meddle with it for what right hath my Exchequer in another mans Calamity so that it should hunt after gain in such a woful case as this is And yet if no Kindred appear within a year and a day and appearing prove not the Goods shipwracked to be theirs the Goods come to the Exchequer even by that Law So much that Law condemns carelesness which is written vigilantibus non dormientibus And with this agrees the Laws of Oleron and the Lawes of this Land as taken out of those Imperial Laws in that Point as is conceived II. The Civil Law was ever so curious and careful of the preserving the Goods of such miserable persons that if any should steal such they should pay four-fold to the Owner if pursued within a year and a day and as much to the Prince or his Admiral So carefully were and so exact in requiring restitution that the very stealing of a Nayl or the worth thereof obliged the Thief to the restitution of all the remaining Goods And by the Emperour Antonius it was made a Law for such sort of men that they should be batten'd and banish'd for 3. years but that was onely for those of a high and Honourable rank but those that were base and ignoble should be scourged and sent to the Gallies or Metal Mines And the preventing of help to such shipwrackt persons was punisht with the same suffering as a Murtherer The like for those that shall put forth any Treacherous Lanthorn or Light with intention to subject them to danger or shipwrack was punish'd with death And though no harm happens yet he may be punished hence it is that Fishers are forbidden to Fish with Lights in the Night for fear of betraying of Saylors But this good Law does not extend to Pyrats Robbers Sea-Rovers Turks or other Enemies to the Catholique Faith Where a man Dogg or Catt escapes alive out of the Ship neither the Ship or other Vessel nor any thing therein shall be adjudged Wreck but the Goods shall be saved and kept by the Sheriff Coroners or the Kings Bayliffs and delivered to the Inhabitants of the Town where the Goods are found so that if any within a year and a day sue for those Goods and after prove that they were his at the time of the shipwrack they shall be restored to him without delay but if not they shall be seized by the said Sheriff Coroners or Bayliffs for the Kings use and shall be delivered to the Inhabitants of the Town who shall answer before the Justices for the Wreck belonging to the King Where the Wreck belongs to another he shall have it in like manner and if any be attainted to have done otherwise he shall suffer Imprisonment make Fine to the King and yield damage also If a Bayliff do it and it be disallowed by his Lord the Bayliff shall answer for it if he have wherewithall but if not the Lord shall deliver his Bayliffs Body to the King The Lawes of Normandy agrees with this Law IV. If the Ship perishes onely and the Goods are safe in that case the Goods ought to pay a proportion of a 5th or 10th penny according to the easie or difficult winning or saving of the said Goods Rich Goods as Gold and Silver and Silk pay less than Goods of great weight and cumber being in less danger unless it were a Wreck going into a Port for which the Skipper was not bound for there è contra then the Skipper is not to be considered V. The King shall have Wreck of the Sea Whales and great Sturgeons taken in the Sea and elsewhere throughout the whole Realm except in places priviledged by the King VI. By the grant of Wreck will pass Flotsam Jetsam and Lagan when they are cast upon the land but if they are not cast upon the land the Admiral hath Jurisdiction and not the Common Law and they cannot be said Wreck Wreccum Maris are such Goods onely as are cast and left upon the land by the Sea Flotsam is when a Ship is sunk or otherwise perished and the Goods float upon the Sea Jetsam is when the Ship is in danger to be sunk and for lightning the Ship the Goods are cast into the Sea notwithstanding which the Ship perisheth Lagan vel Ligan is when the Goods which are so cast into the Sea before the Ship perishes being heavy are by the prudence of the Master or Marriners who have an intent to save them so sunk as that they may come at them again in order to which they fasten a Buoy or other light matter that may signifie to them where they lye if providence should bring them in a Condition to retake them The King shall have Flotsam Jetsam and Lagan when the Ship perisheth or when the Owners of the Goods are not known but when the Ship perisheth not è contra A man may have Flotsam and Jetsam by the Kings Grant and may have Flotsam within the high and low Water-mark by prescription as it appears by those of the West Countries who prescribe to have Wreck in the Sea so far as they may see a Humber Barrel VII If a Ship be ready to perish and all the men therein for safeguard of their lives leave the Ship and after the forsaken Ship perisheth if any of the men be saved and come to land the Goods are not lost A Ship on the Sea was pursued with Enemies the men for safeguard of their lives forsake the Ship the Enemies take the Ship and spoyl her of her Goods and Tackle and turn her to Sea by stress of weather she is cast on land where it happened her men arrived It was Resolved by all the Judges of England That the Ship was no Wreck nor lost VIII If Goods are cast up as Wreck and it falls out they be bona peritura the Sheriff may sell them within the year and the sale is good but he must account to the true Owners Owners clayming the Wreck must make
yet it does not wholly remove the disease or non-ability as to the points of descent or hereditary transmission and resembles a Person in case of an Attainder and therefore if he purchases Lands and dyes without issue the Lord by Escheat shall have the Lands And therefore in lineal descents if there be a Grand-father natural born Subject Father an Alien Son natural Subject the Father is made Denizon he shall not inherit the Grand-father and if the Father dyes in the life of the Grand-father the Grand-child though born after the Denization shall not inherit the Grand-father for the Denization does not remove neither the personal nor the consequential impediment or incapacity of the Father So likewise in Collateral descents As for instance the Father a Natural born Subject has issue two Sons Aliens who are both made Denizens and one dyes the other shall not inherit him XII The like Law in Dower a Man seized of Lands in Fee and takes an Alien to Wife and then dyes the Wife shall not be endowed But if the King takes an Alien to Wife and dyes his Widdow Queen shall be endowed by the Law of the Crown Edmund Brother of King Edward the I. married the Queen of Navarre and dyed and it was resolved by all the Judges that she should be endowed of the third part of all the Lands whereof her Husband was seized in Fee A Jew born in England takes to Wife a Jew born also in England the Husband is converted to the Christian Faith purchaseth Lands and enfeoffeth another and dyeth the Wife brought a Writ of Dower and was barred of her Dower Quia vero contra justitiam est quod ipsa dotem petat vel habeat de temento quod fuit viri sui ex quo in conversione sua noluit cum eo adhaerere cum eo convert If an Alien be a Disseisor and obtains Letters of Denization and then the Disseisor release unto him the King shall not have the Land for the release hath altered the Estate and it is as it were a new purchase otherwise it is as if the Alien had been the feo ffee of the Deseissee And though Aliens are enabled by Charter of Denization to a transmission Hereditary to their posterity of Lands yet a Denizon is not capable of Honour nor a transmission of the same without Naturalization by Parliament for by the Charter of Denization he is made quasi seu tanquam ligens but to be a Member of Parliament he must be ligens revera non quasi for by his becoming a Noble-man he claims the place of Judicature in Parliament the which he cannot till naturalized by Act of Parliament and then he may claim as eligible to the same or any other CHAP. IV. Of Aliens and Crials per meditatem where allowed and where not I. Of the manner of Aliens obtaining Trials per medietatem at the Common-Law and of the Antiquity of the same II. Of the making the same a Law universal within this Realm as to some Persons afterwards general as to all III. Of the Writ and some Observations on the summons of such an Inquest IV. Of the opportunity lost or gained by praying this immunity V. Of the awarding of Tales upon request on such Enquiries VI. Where this immunity does not extend in Aliens and where it does in matters Civil and Criminal VII Of the validity of a witness Alien and of an Infidel VIII The tittle of a Renegadoe IX Of the benefit of the Kings Pardon whether it extends to an Alien whose abode is here but happens to be absent at the time of the promulging I. TRiatio Bilinguis or per medietatem linguae by the Common-Law was wont to be obtained by Grant of the King made to any Company of Strangers as to the Society of Lumbards or Almaignes or to any other Corporation or Company when any of them were impleaded the moyety of the Enquest should be of their own Tongue this Trial per medietatem in England is of great Antiquity for in some cases Trials per medietatem was before the Conquest Viri duodeni Jure Consulti sex Walliae totidem Anglis Wallis jus dicanto and as the Commentator observes it was called duodecem Virale Judicium II. This immunity afterwards being found commodious to us Islanders became universal for by the Statute of 27. E. 3. cap. 8. It was enacted that in Pleas before the Major of the Staple if both Parties were Strangers the Trial should be by Strangers but if one Party was a Stranger and the other a Denizon then the Trial should be per medietatem Linguae But this Statute extended but to a narrow compass viz. Only where both Parties were Merchants or Ministers of the Staple and Pleas before the Major of the Staple But afterwards in the 28th Year of the same Kings Reign it was enacted That all manner of Enquests which was to be taken or made amongst Aliens and Denizons be they Merchants or others as well before the Maior of the Staple as before any other Justices or Ministers Although the King be party the one half of the Enquest or proof shall be Denizens the other half Aliens if so many Aliens and Forreigners be in the Town or Place where such Enquest or proof is to be taken that be not Parties nor with the Parties in Contract in Plea or other quarrel whereof such Enquest or proof ought to be taken and if there be not so many Aliens then shall there be put in such Enquests or proofs as many Aliens as shall be found in the same Town or Places which be not thereto Parties as aforesaid is said and the remnant of Denizens which be good men and not suspicious to the one Party or other By which Statute the same Custom or immunity was made a Law universal although it be in the Case of the King for the Alien shall have his Trial per medietatem It matters not whether the moyety of Aliens be of the same Country as the Alien party to the action is for he may be a Dutch-man and they Spaniards French Walloons c. because the Statute speaks generally of Aliens III. The Form of the Venire facias in this case is De Nicenet c. quorum una medietas fit de Indigenis altera medietas fit de aliegenis natis c. And the Sheriff ought to return twelve Aliens and twelve Denizâ—…ns one by the other with Addition which of them are Aliens and so they are to be sworn but if this Order be not observed it is holpen as a misreturn It has been conceived of some that it is not proper to call it a Trial per medietatem Linguae because any Alien of any Tongue may serve but that surely is no Objection for People are distinguished by their Language and medietas Linguae is as much as to say half English and half of another