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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A62673	An essay concerning the laws of nations, and the rights of soveraigns with an account of what was said at the council-board by the civilians upon the question, whether Their Majesties subjects taken at sea acting by the late king's commission, might not be looked on as pirates? : with reflections upon the arguments of Sir T.P. and Dr. Ol / by Mat. Tindall ...	Tindal, Matthew, 1653?-1733.	1694 (1694)	Wing T1300; ESTC R4575	22,311	37

debated there To which he answered that King James was allowed very lately the Rights of a King and that those that acted by his Commission in Ireland were treated as Enemies and People that followed his Fortune might still suppose he had a right which was enough to excuse them from being guilty of Piracy One of the Lords then demanded of him if any of Their Majesties Subjects by virtue of a Commission from the late King should by force seize the Goods of their Fellow-Subjects by Land whether that would excuse them from being guilty at least of Robbery If it would not from Robbery why should it more excuse them from Piracy To which he made no Reply Then the Lords asked Sir T. P. and him whether it were not Treason in Their Majesties Subjects to accept a Commission from the late King to act in a hostile manner against their own Nation which they both owned it was and Sir T. P. has since as I am informed given it under his Hand that they are Traitors The Lords further asked them If the seizing the Ships and Goods of Their Majesties Subjects were Treason why they would not allow it to be Piracy because Piracy was nothing else but seizing of Ships and Goods by no Commission or what was all one by a void or null one and said that there could be no Commission to commit Treason but what must be so To which they had nothing to reply only Dr. Ol. not by way of Answer to one of the Lords who as the Jacobitish Account supposeth made use of it as an Instance for the other side pretended to quote a Precedent which he said came up to the present Case about Antonio King of Portugal who as he said after he had lost his Kingdom gave Commissions to Privateers to seize upon all Spanish Vessels whom as the Spaniards met with they hanged as Pirates so far his Precedent is against him but an Author without naming him was of Opinion as he said that if Antonio had ever been a rightful King that then the Spaniards ought not to have treated those that acted by his Commission as Pirates This was all that was said by the Doctor in behalf of the late King's Privateers upon which I must beg leave to make a few Reflections As to those Privileges which were allowed the late King in Ireland they were not allowed him upon the account of any Right nor was it an owning that he had any Right to that Kingdom but barely as he was in Possession for then he had Rempublicam Curiam c. and consequently a Right to be treated as an Enemy and not only he but whoever had been in Possession would have had a right to have been used after the same manner and is no more than what is practised in all Civil Wars where there are just Forces on either side These Privileges being allowed him when he was a publick Person and in possession of a Kingdom could be no just reason to induce any to imagine that they would be permitted him when he was reduced to a private Condition much less is it such a Presumption as is sufficient to excuse them who acted by his Commission from suffering as Pirates The very taking a Commission from him after he was reduced to a private Condition to act against their own Nation was a Demonstration that the Government was no longer in his but other Hands who could not reasonably be presumed would allow that he had still any Right or that they that acted by his Commission should be dealt with as if he still had a Right but that they should be used as if they acted by no Commission or what is all one a null or invalid one Their pretending to believe he has still a Right is no more an excuse in the Case of Piracy than of Treason which every Traitor may pretend to As to the Story of Antonio the Doctor is to suppose no worse abominably mistaken in the very Foundation for they that suffered by the Spaniards as Pirates were French who had not their Commissions from Antonio but from their own King as Albericus Gentilis who mentions this Story Lib. 1. cap. 4. saith At ipsa Historia vincat eos non fuisse Piratas per literas quas Regis sui ostendebant cui Regi serviebant non Antonio etsi maxime pro Antonio quod illos non tangebat And Conestaggius who is the Historian he refers to and who has given an excellent Account of that War saith it was the Royal Navy of France which is very improbable did act by any Authority but that of the French King 's set out as he words it Regiis sub Auspiciis with which the Spanish Fleet engaged and had the good fortune after a long and bloody Fight to rout it and took above five hundred Prisoners of which almost the fifth part were Persons of Quality whom the Spanish Admiral was resolved to sacrifice as Pirates because the French King without declaring War had sent them to the Assistance of Antonio Against which Proceedings the Officers of the Spanish Fleet murmured and represented to their Admiral that they were not Pirats because they had the French King's Commission but That they chiefly insisted on was the ill Consequence it would be to themselves who if they fell into the hands of the French must expect the same Usage As to the French King 's assisting Antonio without declaring War they supposed that before the Sea Fight the two Crowns might be said to be in a State of War by reason of frequent Engagements they had in the Low-Countries This is the Account Conestaggius gives of it which how little it is to the purpose the Doctor quoted it for is so visible that there is no need of any words to shew it But granting as the Doctor supposeth that Antonio never had any Right or at least the Spaniards would never allow he had any yet it is evident from the Historian that they allowed him during Possession the same Privileges as the late King had during the War in Ireland And if the Spaniard by the Law of Nations after Antonio was driven from his Kingdom might treat those that acted by his Commission as Pirates why may not the English deal after the same manner with those that act by the late King's Commission since they look on him to be in the same Condition as the Spaniards did on Antonio without a Kingdom or Right to one What difference can That make that one had never a Right and the other though he had once a Right has lost it These two Civilians I believe are the only Persons pretending to be Lawyers that are of Opinion that a King without a Kingdom or Right to one has by the Law of Nations a Right to grant Commissioners to Privateers especially if they are Subjects as they have acknowledged it to that King against whom they by their Commissions are to act Upon what account

disturb the Trade of a Nation which can only tend to exasperate and vex them That cannot in common Understanding be reputed a just Design to recover his Kingdom or to conquer his Enemies but only a Pretence to let those People that act by his Commission inrich themselves by exercising Piracy which is such an odious thing that Nations cannot be too careful in punishing whatever tends that way Besides the Laws of Nations respect the general Good of Societies more than the Right of any particular Person who to speak properly can have no Right when it is inconsistent with the Good of the Society because a particular must always give place to a general Good and the Interest of a King when he has no longer the Management of the Affairs of any Nation is no more sacred than that of any other private Person who by Nature is his equal it was only the Office which is sacred because it is so necessary for the Good of Mankind that made the Difference which when he is no longer possessed of he is but upon the same Level with the rest of Mankind and then the Peace and Quiet or Trade and Commerce of a Nation ought not to be disturbed more for his than any other particular Person 's Interest And People who have a Right even to the Lives of their Enemies use them when the mutual Good of Societies do not forbid it after the same manner as they do Pirates and Robbers and they use all Spies and those that privately attempt the Lives of their Enemies whatever Right the Prince has that employs them as Pirates The Pretence of his Right who employs them will be no manner of Plea to prevent their Execution And the same Reason the Good of Societies does more strongly require the putting those to Death that rob by the Commission of any private Person whatever Besides these Reasons which I think are sufficient to prove them who were taken acting by the late King's Commission Pirates there is another unanswerable One from the Persons who accepted the Commission Who being their Majesties Subjects and which the Question that was put to the Civilians justly supposeth were morally incapable to receive such a Commission it was not in their Power to take a Commission from any King whatever to invade in a hostile manner the Ships and Goods of their Fellow-Subjects The accepting the Commission was Treason and no Commission whatever can authorize People to commit Treason so that the Commission was null and void as well upon Their account that received it as His that granted it These Reasons or at least what is most material in them the Heads of them I will not pretend they were then as fully and largely handled as they are here set down were urged either by Dr. Littleton or my Self He did not upon a Question where so much could be said leave out as it were on purpose what was most material nor did not as the sham-Account reports only say That the late King had no right to grant Commissions because he had no Treasury or Aerarium and because there was no War between him and England or somewhat to that effect Nor did I as the Account will have it without offering at any Reasons my self assent to what he said but not only then but since I am in a manner forced to say so much when I gave my Opinion in Writing I made use of what I thought most material in these Arguments It is a great Sign of the Weakness of their Cause as well as their Disingenuity that they dare not repeat the whole Matter of Fact but only relate so much of the other side as they think may serve to give a better Gloss to what they without any respect to Truth have thought fit to divulge but they were under a kind of necessity of so doing and which is the only Excuse the Matter is capable of since they had no other way of making what they pretend was said by them appear tolerable but by representing what was said by those of the contrary Side if it were possible more absurd And it is no wonder where People have neither Law nor Reason on their side that they have recourse to Lies and Calumnies the usual Arts of that Party and the only Props they have to support their so often baffled Cause But to return The Occasion of sending for the Civilians after some of them that were consulted had given their Opinions in Writing was as the Lords told Sir T. P. and Dr. Ol. who had declared that they were not Pirates without offering to shew the least Reason why they were of that Mind to hear what Reason they had to offer for their Opinion Then Sir T. P. said It was impossible they should be Pirates for a Pirate was hostis humani generis but they were not Enemies to all Mankind therefore they could not be Pirates Upon which all smiled and one of the Lords asked him Whether there ever was any such thing as a Pirate if none could be a Pirate but he that was actually in War with all Mankind To which he did not reply but only repeated what he had said before Hostis humani generis is neither a Definition or as much as a Description of a Pirat but a Rhetorical Invective to shew the Odiousness of that Crime As a Man who tho he receives Protection from a Government and has sworn to be true to it yet acts against it as much as he dares may be said to be an Enemy to all Governments because he destroyeth as far as in him lieth all Government and all Order by breaking all those Ties and Bonds that unite People in a Civil Society under any Government So a Man that breaks the common Rules of Honesty and Justice which are essential to the well-being of Mankind by robbing but one Nation may justly be termed hostis humani generis and that Nation has the same right to punish him as if he had actually robbed all Nations Doctor Ol. said that the late King being once a King had by the Laws of Nations a Right to grant Commissions and that though he had lost his Kingdoms he still retained a right to the Privileges that belong to Sovereign Princes It was asked him by one of the Lords whether he could produce an Author of any Credit that did affirm that he that had no Kingdom nor right to any could grant Commissions or had a right to any of those Privileges that belong to Sovereign Princes and that no King would suffer those Privileges to be paid to Christina when she ceased to be Queen of Sweedland and that it was the judgment of all the Lawyers that ever mentioned that Point that she had no right to them and he did hope that those that had sworn to Their present Majesties did not believe the late King had still a right and that that Point was already determined and would not be suffered to be