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
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
DE Jure Maritimo ET NAVALI OR A TREATISE OF Affaires Maritime And of Commerce In Three Books LONDON Printed for John Bellinger in Clifford's Inne Lane against the West Doore of St. Dunstan's Church And George Dawes in Chancery Lane against Lincolns-Inne Gate And Robert Boulter at the Turk's Head in Cornhill 1676. THE Wisdome of God is highly to be admired who hath not endowed the other living Creatures with that Soveraigne Perfection of Wisdome but hath secured and provided for them by natural Muniments from assault and peril and other necessities But to Man he formed him naked and frail because of furnishing him with Wisdome Understanding Memory and Sence to govern his Actions endowing him with that pious affection of desiring Society whereby one is inclined to defend love cherish and afford mutual ayd to each other Nor hath he in no less a wonderful manner Infinitely Transcending all humane wisdom and understanding created the material world to be subservient to his Being and Well-being Yet without humane Understanding and Reason did he not build a Ship raise a Fort make Bread or Cloth but these came to pass onely by humane Arts and Industry in which by the Revolutions of the Coelestial Bodies Times and Seasons materials and other necessaries are brought forth by the alteration of which men in their proper seasons reap the fruits of their Labour so that there is no Society Nation Countrey or Kingdom but stands in need of another hence it is that men knowing each others necessities are invited to Traffique and Commerce in the different parts and emensities of this vast World to supply each others necessities and adorn the conveniences of humane life And as God hath so ordered this wonderful dependance of his Creatures on each other so hath he by a Law Immutable provided a Rule for Men in all their actions obliging each other to the performance of that which is right not onely to Justice but likewise to all other Moral Virtues the which is no more but the dictate of right Reason founded in the Soul of Man shewing the necessity to be in some act by its convenience and disconvenience in the rational nature in Man and consequently that it is either forbidden or commanded by the Author of Nature which is the Eternal Creator of all things And as God hath imprinted this Universal Law in the minds of all Men so hath he given Men power Society being admitted to establish other Lawes which proceeds from the will the which is drawn from the Civil power that is from him or them that Rule the Commonwealth or Society of Freemen united for their common benefit which is called the Lawes of Nations and which by the will of all or many Nations hath received force to oblige and is proved by a continued use and testimony of Authentique Memorials of Learned or Skilful Men. Now by the Lawes of Nature every Man is bound to profit another in what he can nor is the same onely Lawful but Commendable so true was that saying Nothing is more serviceable to man then man But if Man shall neglect this immutable Law in the ayding and assisting his fellow Citizen and enquire and dispute why God had laid this necessity upon him And when Opportunity gives leave to take the benefit of Wind or Tyde in order to his furnishing himself or Neighbour with those things that adorn humane life to dispute the Causes of their flux and reflux and how they vary and change He not only offends the Laws of Nature but assumes a power of destroying Society and consequently becomes at the least a wilful transgressor of the Lawes of Nations And though the Eternal Power hath so Established this necessity in Mankind that every man should stand in need of another man yet so great a Providence is over Industrious men that scarce any man not disabled by Nature or Accident Sickness Impotenoy and the like but by his Industry and pains may earn more than would supply his necessities and so much as any man gets by being truly Industrious above what supplyes his necessities is so much beneficial to himself and Family as also an enriching to that Kingdome or State where he resides from hence it is that all Mankind present or to come are either Traders by themselves or others and the ends designed by Trade and Commerce are Strength Wealth and Imployment for all sorts of people where the same doth most flourish the end tending to the advancement Oppulancy and greatness of such a Kingdom or State Constantinople the Throne once of Christendome having been Sack't by Mahomet the Second became a place of desolation as well as horror yet he by granting a free Trade and Religion soon after repeopled that great but unhappy Spott Nor did Silemus tread amiss in following the steps of his Victorious Predecessor when having the like success on Tauris and Grand Cairo he translated the Persian and Egyptian Artificers and Traders to that repeopled City following the Example of the Roman Virtues Nor did our Victorious Third Edward deem it an Act unbeseeming his great Wisdome when he brought in the Walloons whose Industry soon Established the Woollen Manufacture he not deigning to give no less a security for the enjoying their then granted Immunities and Priviledges then his own Royal Person Nor did that politick Princess shut her Ears from embracing the Offer of those distressed Burgundians after the Example of her Great and Royal Predecessor who sought refuge in her Dominions from the ridged severity of the long Bearded Alva who planting themselves by her appointment at Norwich Colchester Canterbury and other Towns have of those places then only habitations for Beggars raised them now in competition with if not excelling all or most of the Cities in England for Riches Plenty and Trade Nor need we run into the History of earlier Times to give an account of the many Kingdomes and States that have risen by Industry and Commerce 't is enough if we cast our Eyes on our Neighbour the Hollander a place by relation of Ortelius not much bigger then Yorkshire and such a Spott as if God had reserved it as a place onely to digg Turf out of for the accommodateing those Countries wherein he hoards up the miseries of Winter it affording Naturally not any one Commodity of use yet by Commerce and Trade the Daughters of Industry it is now become the Store-House of all those Merchandizes that may be Collected from the rising to the setting of the Sun and gives those People a name as Large and High as the greatest Monarch this day on Earth Nor need we pass out of Christendome to find Examples of the like when Venice Genoa Lubeck Embden and the rest of the Hansiatique Towns once the Marts of the World till Sloth Luxury and Ambition got within their Walls and drove it to Ports of Industry that have since kist and embrac't it
III. Though Pyrats are called enemies yet are they not properly so termed For he is an enemy saies Cicero who hath a Common-wealth a Court a Treasury consent and concord of Citizens and some way if occasion be of Peace and League and therefore a Company of Pyrats or Freebooters are not a Common-wealth though perhaps they may keep a kind of equallity among themselves without which no Company is able to consist and though it is seldom they are without fault yet hold society to maintain right and they do right to others if not in all things according to the Law of Nature which among many people is in part obliterated at least according to agreements made with many other Nations or according to Custom So the Greecks at what time it was accounted lawful to take spoil at Sea abstained from slaughter and populations and from stealing Oxen that plowed as the Scholiast upon Thucydides observes and other Nations living also upon the spoil when they were come home from Sea sent unto the Owners to redeem if they pleased at an equal rate what they were robbed of at Sea and at this day if a Ship hath the Emperor of Barbarys protection the Pyrats of that Nation if they seize will restore and if there be no protection yet if taken within sight of their Castles the Prize is not absolute but if resistance is made and there be a Caption she then becomes the Captors for ever as the price of blood IV. Pyrats and Robbers that make not a Society i. e. such a Society as the Laws of Nations accounts lawful are not to have any succour by the Law of Nations Tiberius when Tacfarinas had sent Legates to him he was displeased that both a Traytor and a Pyrat should use the manner of an Enemy as Tacitus hath it yet sometimes such Men Faith being given them obtain the right of Legation as the Fugitives in the Pyrenean Forrest and the Banditi at Naples and Solyman the Magnificent having entertained Barbarossa the famous Pyrat sent word to the Venetians that they should use him and esteem him no more as a Pyrat but one of their own Port. V. If a Ship is assaulted by a Pyrat for redemption of which the Master becomes a Slave to the Captors by the Law Maritime the Ship and lading are tacitly oblidged for his redemption by a general contribution But if a Pyrat shall feign himself stronded and to duccoy the Merchant Man for his releif shall fire his Guns or wave his Colours who accordingly varies his course for his assistance and the Pyrat enters him for redemption of which he becomes a Slave to the Pyrat there contribution shall not be made and if the Ship loses any of her lading the Master shall answer the same VI. A Pyrat attacques a Merchant Man and enters her for Redemption of which the Master gives his Oath at a time and place to pay the Pyrat a summe certain by some it hath been held that the Master commits not perjury if the price promised for redemption be not brought according to the Oath because that a Pyrat is not a determinate but a common Enemy of all with whom neither Faith nor Oath is to be kept but that is no reason for the assoiling of the vow for though the Person be deficient yet the Just God is concerned nor can that Person that hath promised a thing satisfy his conscience after he hath once delivered it to him to recover it back again for the words in an Oath as to God are to be understood most simply and with effect and therefore he that returned secretly to the Enemy and again departed made not good his Oath concerning his return VII If an English Man commit Pyracy be it upon the Subject of any Prince or Republique in amity with the Crown of England they are within the purview of the Stat. of 28 H. 8 and so it was held where one Winterson Smith and others had robbed a Ship of one Maturine Gantier belonging to Bourdeaux and bound from thence with French Wines for England and that the same was felony by the Law Maritime and the Parties were convicted of the same VIII And so it is if the Subject of any other Nation or Kingdom being in amity with the King of England commit Pyracy on the Ships or Goods of the English the same is felony and punishable by virtute of the Stat. and so it was adjudged where one Careless Captain of a French Man of War of about 40 Tuns and divers others did set upon four Merchant Men going from the Port of Bristoll to Carmarthen did rob them of about 1000 l. for which he and the rest were arraigned and found guilty of the Pyracy But before the Stat. of 25 Ed. 3. if the Subjects of a Forreign Nation and some English had joyned together and had committed Pyracy it had been Treason in the English and felony in the Forreigners And so it was said by Shard where a Norman being Commander of a Ship had together with some English committed robberies on the Sea being taken were arraigned and found guilty the Norman of felony and the English of treason who accordingly were drawn and hang'd But now at this day they both receive Judgement as felons by the Laws Maritime IX If the Subjects in enemity with the Crown of England be Sailers aboard an English Pyrat with other English and then a robbery is committed by them and afterwards are taken it is felony without controversy in the English but not in the Strangers for they cannot be tryed by virtue of the Commission upon the Statut for it was no pyracy in them but the deprdeation of an Enemy for which they shall receive a tryal by Martial Law and Judgement accordingly X. Pyracy committed by the Subjects of the French King or of any other Prince or Republique in amity with the Crown of England upon the British Seas are punishable properly by the Crown of England only for the Kings of the same have istud regimen dominium exclusive of the Kings of France and all other Princes and States whatsoever XI If Pyracy be committed on the Ocean and the Pyrats in the attempt there happen to be overcome the Captors are not oblidged to bring them to any Port but may exoppose them immediately to punishment by hanging them up at the main yard end before a departure for the old natural liberty remains in places where are no judgements And therefore at this day if a Ship shall be in on a Voyage to the West-Indies or on a Discovery of those parts of the unknown World and in her way be assaulted by a Pyrat but in the attempt overcomes the Pyrat by the Laws Maritime the Vessel is become the Captors and they may execute such Beasts of prey immediately withhout any solemnity of condemnation XII So likewise if a Ship shall be assaulted by Pyrats
time or in any place been formerly practised towards any Ships of his Majesty of Great Britain or his Predecessors by any Ships of the States General or their Predecessors IV. Now his Majesty holds not this Salutation or Respect by virtue of the League or of the Article but as the same is a Right inherent to the Empire of Great Britain and therefore in the first part of the Article it is declared in these words That the aforesaid States General of the Unithed Provinees in due acknowledoment on their part of the King of Great Britain ' s RIGHT to have his Flagg respected in the Seas hereafter mentioned shall and do declare and agree Now this Right extends and subjects all Nations whatsoever that shall pass through those Seas and between those places meeting with any of his Majesty's Ships of War bearing his Flagg Jack or Cognizance of Service to strike their Top-sail and take in their Flagg in acknowledgement of His Majesty's Soveraignty in those Seas and if any shall refuse to do it oroffer to resist they may be compelled vis manu forti for his Majesty's Honour is by no means to receive the least diminition V. If therefore any of his Majesty's Subjects should be so negligent or forgetful to pay that obeissance when it may be done without losse of the Voyage they are to be seized on and brought to the Flagg to answer the contempt or else the Commander may remit the Name of the Ship Commander or Master as also the place from whence and the Port to which she shall be bound to the Admiral however before she is dismist she must pay the charge of the shot that her negligence or forgetfulness occasioned and afterwards may be indicted for the same and severely punished VI. In His Majesty's Seas none of his Ships of War are to strike to any and that in no other part no Ship of His Majesty is to strike her Flagg or Top-sail to any Forraigner unless such forraign Ship shall have first struck or at the same time have strike her Flagg or Top-sail to his Majesty's Ships VII But if any of the King of Englands Ships of War shall enter into the Harbour of any Forraign Prince or Sate or into the râ—…ade within shot of Canon of some Fort or Castle yet such respect must be pay'd as is usually there expected and then the Commander is to send a shore to inform himself what return they will make to this Salute and that if he hath received good assurance that his Majesty's Ships shall be answer'd Gun for Gun the Port is to be saluted as is usuall but without assurance of being answered by an equal number of Guns the Port is not to be saluted And yet in that very respect before the Port is to be saluted the Captain ought to inform himself how Flaggs of the same quality with that he carrys of other Princes have been saluted there the which is peremptorily to be insisted on to be saluted with as great respect and advantage as any Flagg of the same quality with the Captains of any other Prince hath been saluted in that Place VIII A Captain of a Ship of the second rate being neither Admirall Vice-Admiral nor Reer-Admiral at his first coming and saluting his Admiral or Commander in chief is to give 11 Pieces his Vice-Admiral nine and his Reer-Admiral seven and the other proportionably less by two according to their Rancks but the Commander or Captain of a Ship is not to salute his Admiral or Commander in chief after he hath done it once except he hath been absent from the Flagg two Months XI When a Ship of the second rate shall carry any Ambassador Duke or Nobleman at his coming aboard he is to give eleven Pieces and at his landing fifteen and when he shall carry a Knight Lady or Gentleman of Quality at their coming aboard he is to give seven and at the landing eleven and the other Ships are to give less by two according to their Rancks and number of Ordinance X. When an Admiral of any forraign Nation is met with he is to be answered with the like number by all the Ships he shall salute if a Vice-Admiral the Admiral is to answer him with twelve less but the Vice-Admiral and Reer-Admiral and as many of the rest as he shall salute shall give him the like number if a Reer-Admiral then the Admiral and Vice-Admiral to answer him with two less but if he shall salute the Reer-Admiral or any other they are to answer him in the like number XI When a Man of War or Merchant-Man of another Nation or of our own salute any of the King's Ships he is to be answer'd by two less XII When any of the Captains of his Majesty's Ships shall have occasion to salute any of the King's Castles he is to give two Guns less then they are directed to give upon saluting their Admiral or Commander in chief as aforesaid But this extends only in time of Peace for if War is begun no Guns ought to be fired in Salutes unless to the Ships or Castles of some forraign Prince or State in Amity XIII Those duties or obligations being laid on Commanders they consist of two parts the one is that antient prescription which the Crown of England claims by virtue of the Soveraignty of that Empire the other is but that respect which is pay'd as visible marks of Honour and Esteem either to Kingdoms or Persons publique or private to whom these several Commands are to be observed and yet in these which are both innocent and harmless of themselves yet we wont not those who being empty of all that may be called good want not malice to start up words wherefore should the lives of Men even Christian Men be exposed to death and slaughter for shaddows as they call them the right of salutation or Complement being no other in their opinion XIV Admitting therefore that the evidence of original Compacts and Rights stand at such remote distances from us that they are hardly discernable and that the principal of Civil things as well as Natural is sought for in a Chaos or confusion so that the evidence of antient facts vestigia nulla retrorsum there being no infallible markes of their preexistence one step doth so confound and obliterate another and that time it self is but an imagination of our own and intentional not a reall measure for actions which pass away concomitantly with that measure of time in which they were done for which reason we talk of antient things but as blind Men do of Colours Notwithstanding prescription is supposed by most to hold out such an evidence that as they say it ought to silence all Counterpleas in all Tribunals and by the present allowance which is indulged to it it either proves a good or cleans a vitiated title and this Prerogative in the Civil constitution of the World hath this Power in the Civil constitution
any damage happens they are to make full satisfaction so it is if they lay out an Anchor and neglect the placing of a Buoy to the Anchor and damage happen thereby they are not onely subject to be punished in the Admiralty but likewise to render satisfaction to the party damnified If two Ships be in the River and the one falls foul on the other both being laden by the Law Maritime the Contribution is to be in Common and to be equally divided and apprized half by half but then the Marriners must swear there was no fault in them for otherwise one that hath an old rotten Vessel which he can no wayes dispose of may so order the matter as to lay her in the way of a good Ship under sayl so that the same may be answered in damage but when the Contribution is made equal then the contrivance will be avoided CHAP. X. Of Bills of Exchange I. Of the Antiquity of Exchange by the Hebrew Law II. Of the Antiquity of Exchange by the Romans III. Of Exchanges by other Nations in imitation of those people IV. Of the several sorts of Exchanges and of Cambio commune V. Of Cambio real or Exchanges value for value VI. Of Cambio sicco or dry Exchanges VII Of Cambio fictitio or seigned Exchange VIII Of the Exchanges used this day and on what IX How Exchanges are made and upon Moneys in London X. Moneys paid generally how repaid by Exchange XI Of Bills of Exchange payable at single usance XII Bills of Exchange at double or treble usance and of the customary usances to certain places from London and Amsterdam to other places XIII Of the nature of Bills of Exchange and how esteemed of by the Lawes of England XIV Bills drawn more then one no prejudice to the parties and of the true measure of judging on Bills by Custome XV. What amounts to an acceptance generally and on refusal where to be protested XVI All the drawers are made lyable and whether the party to whom the Money is made payable is bound to procure an acceptance XVII Protest what is meant by the same and where the same is necessary and where not XVIII Bill drawn on two persons where the same is necessary and where not XIX One Factor serves a Company where a Bill accepted of his by one of the Company obliges the rest and where not XX. What words amount to an acceptance and what not XXI Where a Bill may be accepted for part and what must be done with the Bill thereupon XXII When a Countermand may legally be made and when not XXIII How the several parties interessed in a Bill of Exchange are obliged and fettered to each other XXIV How a Collateral security may be annexed to a Bill when the time is elapsed for non-payment XXV Where the Protest is onely necessary to be kept and where that and the Bill must both be remitted XXVI Bill lost what is necessary for the parties interessed in such case to act XXVII Of blanck Endorsements the validity of the same XXVIII A Bill once accepted whether the same may be revoked and whether it may be accepted to be paid at a longer time then is mentioned and what Protests are then necessary to be made XXIX Of Bills accepted for the honour of the drawer where the same shall oblige XXX The time customary allowed for payment after failer of payment at the day XXXI Of the validity of the speedy protest as in relation to recover the money to be paid on the drawer XXXII Bill accepted and before the day of payment the Acceptor is a sayling what 's necessary to be done as in reference to obtaining better security XXXIII Bills accepted for the honour of the drawer where turned into an act and remitted by him that gives honour to the Bill XXXIV The Acceptor ready to pay but the party to whom made payable is dead what is necessary XXXV Causes general for a Protest and where satisfaction to the deliverer discharges all parties XXXVI Of Exchange by way of Credit XXXVII One payes a Bill before it be due and the party to whom the same was paid fails where he shall be answerable to the drawer notwithstanding XXXVIII Of Bills assignable over according to the Customes of Merchants what operation in England I. THe Exchange for Moneys is of great Antiquity as well by observation of the Hebrew Customes as those of the Romans Upon the first of the Month Adar Proclamation was made thoroughout all Israel That the People should provide their half Shecklâ—… which were yearly paid towards the Service of the Temple according to the Commandement of God on the 25th of Adar then they brought Tables into the Temple that is into the outward Court where the people stood on these Tables lay the lesser Coyns which were to furnish those who wanted half Sheckles for their Offerings or that wanted lesser pieces of money in their payment for Oxen Sheep Doves and the like which stood there in a readiness in the same Court to be sold for Sacrifices but this supply and furnishing the people from those Tables was not without an Exchange for other money or other things in lieu of money and that upon advantage Hence all those that sate at the Tables were called chief Bankers or Masters of the Exchange II. By the Romans it is supposed to be in use upwards of 2000 years Moneys being then elected out of the best of Metals to avoid the tedious carriage of Merchandize from one Countrey to another So other Nations imitating the Jewes and Romans erected Mints and coyned Moneys upon which the Exchange by Bills was devised not onely to avoid the danger and adventure but also its troublesome and tedious carriage III. Thus Kingdoms and Countreys having by their soveraign authorities coyned Moneys caused them to appoint a certain Exchange for permutation of the various Coyns of several Countreys without any transportation of the Coyn but giving par pro pari or value for value with a certain allowance to be made those Exchangers for accommodating the Merchants IV. As Commerce became various so Exchange numerous but generally reduced to four Cambio Commune Cambio real Cambio sicco and Cambio fictitio Cambio Commune in England was those that were Constituted by the several Kings where having received Moneys in England would remit by Exchange the like sum to be paid in another Kingdome Edward the Third to ascertain the Exchange caused Tables to be set up in most of the gâ—…eral Marts or Ports of England declaring the values of all or most of the Forraign Coyns of those Countries where his Subjects held correspondence or Commerce and what allowances were to be made for having Moneys to be remitted to such Countryes or Kingdoms V. Cambio real was when Moneys were paid to the Exchanger and Bills were drawn without naming the Species but according to the value of the several Coyns which two Offices afterwards were
And were Tertullian alive he would have Recanted that Opinion of his That none would be a Publican but a Heathen VI. Customes are Duties certain and perpetual payable to the King as the Inheritance of his Crown for Merchandizes transported from and beyond the Seas from one Realm to another Magna Custuma antiqua is payable out of Native Commodities scilicet Wooll Woollfels and Hides and that is certain imposed And this Custome which is called Magna Custuma is due to the King of Common Right for Four Causes 1. For leave to depart the Kingdome and to carry Commodities of the Realm out of it 2. For the Interest and Dominion which the King hath in the Sea and the Arms thereof 3. Because the King is the Guardian of all the Ports within the Realm Custos totius Regni 4. For Whaftage and Protection of Merchants upon the Seas against the Enemies of the Realm and Pyrats VII The Custome which is called Parva Custuma is a Custome or Duty payable by Merchants Strangers and begun in the time of King Edward the First when they granted him that they would pay to him and his Heirs 3 d. in the pound for all Merchandizes Exported and Imported by them c. And that the Charter was and may be of great Use I have here inserted the same as it was Faithfully Transcribed out of the Roll in the Tower For Merchant Strangers concerning Liberties granted to them THe KING to his Archbishops c. sendeth Greeting Concerning the good Condition of all the Merchants of the Kingdoms Lands and Provinces underwritten That is to say Germany France Spain Portugal Navarr Lombardy Tuscany Provence Cathalonia Our Dukedoms of Aquitain Tholous Turein Flanders Brabant and all other Lands and forrein places by what name soever called coming into Our Kingdome of England and there remaining We being very solicitous out of Our especial Care that under Our Dominion a freedom of Tranquility and full Security for the said Merchants may be provided for the future so as they may the more readily applythemselves to the service of Us and of Our Kingdome We graciously answering their Petitions and ordaining more amply for securing their Condition in form following underwritten are pleased to grant to the said Merchants for Us and Our Heirs for ever Imprimis That is to say That all Merchants of the said Kingdomes and Lands may come from any other place safe and secure under Our Tuition and Protection into Our said Kingdome of England and every where within Our Dominion with their Merchandizes of what sort soever and be unmolested and quiet concerning Murage Pontage and Pavage and that within Our said Kingdom and Dominion they may Traffique in the Cities Boroughs and Market Towns onely in gross as well with Natives or Inhabitants of this Our Kingdom and Dominion aforesaid as with Strangers Forrein and Domestick But so as their Wares vulgarly called Mercery or the SPECIES thereof they may sell by retail as formerly hath been accustomed And that all the said Merchants may carry or cause to be carried whither they please their Merchandize which they have brought into Our said Kingdom and Dominion or otherwise acquired Except to the Lands of the manifest and notorious Enemies of Our Kingdom paying the Customs which shall be due Wines onely excepted which shall not be exported out of Our said Kingdom or Dominion after they have been Imported into Our said Kingdom or Dominion without Pleasure and special Licence by any way or means whatsoever Item That the said Merchants may lodge in the Cities Boroughs Towns aforesaid at their own pleasure and there stay with their Goods to the content of them who entertain them Item That every Contract made by the said Merchants with what persons soever and from what places soever for what kind of Merchandizes soever shall be firm and stable so that neither of the Merchants shall depart from or go back from his bargain after a Gods-penny is given and received between the principal persons contracting and if it happen that a Contention arise on the said Contract there shall be a Tryal or Inquisition according to the Usages and Customs of the Fairs and Towns where such contract shall be made or begun Item We promise to the aforesaid Merchants and for Us and Our Heirs for ever grant That We by no meanes whatsoever will make nor suffer to be made any Prize or Arrest or detention by occasion of Prise for the future upon their said Wares Merchandizes or other their Goods by Us or by any other or others in any case and necessity whatsoever against the will of the said Merchants without the price presently paid for which the said Merchants might sell to others wares of the like sort for or otherwise to satisfie them so as they shall repute themselves contented And that no Appraisement or value shall be put upon the said Merchants Wares Merchandizes or Goods by Us or Our Ministers Item We will That all Bayliffs and Officers of Fairs Cities Boroughs and Market Towns shall do speedy Justice to the said Merchants complaining to them from day to day without delay according to the Merchants Law concerning all and every thing which by the said Law may be determined And if any defect shall happen to be found in any of Our Bayliffs or Ministers aforesaid whereby the said Merchants or any of their Factors shall suffer loss although the Merchant recover his losses against the party in the whole Yet nevertheless the Bayliff or other Ministers of Ours as the fault requires shall be punished and We grant the said punishment in favour of the Merchants aforesaid for compleating their right Item That in all kinds of Pleas saving in the case of Crime for which the pain of Death is liable to be inflicted where the Merchant shall be impleaded or he implead another of whatsoever condition â—…e that is impleaded be of whether a Forreiner or a Domestick in the said Fairs Cities or Boroughs where there is a sufficient plenty of Merchants of the Lands aforesaid and Inquisition there ought to be made Half of the Inquisition shall be of the said forrein Merchants and the other half of honest and lawful men where the Plea happens to be And if a sufficient number of the Merchants of the said Lands shall not be found let those be put in the Inquisition who shall be found fit in that place and let the residue be of other good and fit men in the places in which that plaint shall be Item We will Ordain and appoint That in every Market Town and Fair of Our said Kingdom and elsewhere within our Dominion Our Weight is to be put in a certain place and before weighing thereof the Scale to be empty in the presence of Buyer and Seller and the arms thereof to be equal and when he hath set the Scale equal he is forthwith to take off his hands so that it
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
President which governs in their name at Banda they have a Fort for a retreat where they must deliver them the Spices at a certain price in Trinate they have another a mile distant of that of the Portugales at Magniene they have three at Motire one at Gilele they have taken that which the Portugales have built and indeed whatsoever either can or may consist with their interest in those parts they have engrossed and by that means almost the Trade of the whole Spices of the East VI. So likewise the Most Christian King hath within few years established such another Trading to those Eastern Parts And in England we have several others as that of trading to Turkey that of Affrica to Guiny and several others dividing the several Trades according to the Coasts and Places where they are appointed forbidding them to intrench or incroach on each other so likewise to all other his Majesties Subjects on severe penalties VII Now it is not the dividing of the Trade into Companies that can answer the expectation but it is the dividing the Trade into Companies where the Places may bear it as that to the Indies Turkey Hambourough and some others But to some others as the Canaries France or any of those Places on this side the Line it has been conceived the Trade will not bear it but the same would be better distributed either into the Trade of voluntary Associations or single Traders others perhaps would result into Monopolies if incorporated however the Standard rule is to know whether the Trade of the Place will bear a Company or not VIII Merchants in England were alwayes favourably provided for by the Common Law of this Kingdom By the Ancient Laws of King Alfred it was provided Defer due fuit que nul Merchant Alien ne hantaâ—…t Angleterre forsque aur quater Foires ne que nul demeurast in la terre outer quarante Iours Mercatorum navigia vel inimicorum quidem quaecunque ex alto nullis jactata tempestatibus in portum aliquem invehentur tranquilla pace fruuntor quin etiam si maris acta fluctibus ad domicilium aliquod illustre ac pacis beneficio donatum navis appulerit inimica atque istuc nautae confugerint ipsi res illorum omnes angusta pace potiuntor IX Again by the Grand Charter of our Liberties they are provided for in these words Omnes Mercatores nisi publice antea prohibiti fuerint habeant salvum securum conductum exire de Anglia venire in Angliam morari ire per Angliam tam per terram quam per aquam ad emendum vel vendendum sine omnibus malis tolentis per antiquas rectas consuetudines praeterquam in tempore guerrae Et sint de terra contra nos guerrina tales inveniantur in terra nostra in principio guerrae attachiantur sine damno corporum suorum vel rerum donec sciatur a nobis vel a Capitali Justitiario nostro quomodo Mercatores terrae nostrae tractantur qui nunc inveniantur in terra illa contra nos guerrina Et si nostri salvi sint ibi alii salvi sint in terra nostra 1. By which it is declared that all Merchant Strangers might be publiquely prohibited to Trade into this Realm be they in Amity or otherwise 2. All Merchant Strangers in Amity except such as be so publiquely prohibited shall have safe and sure conduct in seven things 1. To depart out of England 2. To come into 3. To tarry in 4. By Water and Land to go in and thorough 5. To buy and sell  6. Without any manner of evils Tolls  7. By old and rightful Customs  X. But concerning such Merchant Strangers whose Prince is in War with the Crown of England if they are found within the Realm at the beginning of the War they shall be attached with a Priviledge and limitation i. e. without harm of Body or Goods with this limitation until it be known to the King or his Chief Justice how Merchants of England are used and intreated in their Countrey and accordingly they shall be used in England the same being jus Beli. But for Merchant Strangers that come into the Realm after War begun they may be dealt withal as open Enemies It being the Pollicy of England ever to entertain Merchant Strangers fairly in the 18. year of Ed. 1. in the Parliament Roll it is contained thus Cives London peâ—…unt quod alienigenae Mercatores expellantur a Civitate quia dicantur ad depauperationem Civium c. Responsio Rex intendit quod Mercatores extranei sunt idonei utiles magnatibus c. non habet Concilium cos expellendi However though great Immunities were granted them yet they alwayes found Sureties that they should not carry out the Merchandize which they brought in XI And at this day if they bring in any Merchandize into the Realm and sell the same for Moneys they are to bestow the same upon other Merchandizes of England without carrying of any Gold or Silver in coin plate or mass out on forfeiture the principal reason of this was as well to preserve and keep the Gold and Silver within the Realm as for the encrease of the Manufactures and the same at this day extends as well to Denizons so made by Letters Patents as Strangers however he may use the same in payment to the Kings Leige People without incurring the penalty of the Statute of 4 H. 4. but yet in strictness of Law ought not to receive any Gold in payment XII All Merchant Strangers that shall be made Denizons either by the Kings Letters Patents or by Act of Parliament must pay for their Merchandize like Custom and Subsidy as they ought or should pay before they were made Denizons XIII Every one that buys and sells is not from thence to be denominated a Merchant but only he who trafiques in the way of Commerce by importation or exportation or otherwise in the way of Emption vendition Barter permutation or exchange and which makes it his living to buy and sell and that by a continued assiduity or frequent negotiation in the mystery of merchandizing But those that buy Goods to reduce them by their own art or industry into other forms then formerly they were of are properly called Artificers not Merchants Not but Merchants may and do alter Commodities after they have bought them for the more expedite Sale of them but that renders them nor Artiâ—…rs but the same is part of the mystery of Mâ—…ts But Perâ—…â—…ying Commodities though theâ—… alâ—… not the form yet if they are such as â—…ell the 〈◊〉 at â—…ure dayes of payment for greater priâ—… then 〈◊〉 〈◊〉 them they are not properly called Merchants 〈◊〉 are 〈◊〉 thâ—… they 〈◊〉 〈◊〉 other names as Ware-House Keepers and the like but Banckers and such as deal by Exchange are properly called Merchants XIV
for Decrees given in the Chancery in England which have been exemplyfied under the Great Seal directed to the Kings Lievtenant for the putting the same in execution there but in no case a Judgment given in England may be certified over under any other Seal but that of the Great one But in Scotland it is otherwise for that is a Kingdom absolute and not like Ireland which is a Crown annexed by Conquest but the other is by Union and though they be united under one Prince ad fidem yet their Laws are distinct so as if they had never been united and therefore the execution of the Judgments in each other must be done upon Request as above and that according to the Laws of Nations XI But in Collonies or Plantations which are reduced into the condition of great Families have not this Right of Requesting for they are governed by the Laws prescribed by the Souveraign of the same who may set Jurisdictions make them places priviledged not to have the Persons attached or arrested in any other places but within their own bounds so likewise upon their first forming or Institution may so declare that for any debt or Contract made or done in any place but in that of the same Plantation they shall not be impleaded and therefore in Virginia at this day if a Man contracts a debt in England flies to the same she cannot be there impleaded But if a Man takes up Goods and carries the same over thither there he may be sued in the place so likewise if it can be proved he carryed over the money borrow'd and this amongst others of the Laws and Constitutions of those Plantations is preserved inviolably the same being as it were a pledge and general safety which is given to those Inhabitants that shall resort thither and there plant themselves for the good of the Place and although those that thither flie by reason of great and unreparable losses have contracted debts far beyond their ability to satisfy a failer of which in strictness of Law may if the Creditor pleases oblidge their Bodies to Imprisonment yet doth it not thence follow that the same ought to exacted for though the Carcass of Men may gratify the revenge of the Creditor yet it never can pay the debt wherefore if those ends by themselves in a morall estimation be not necessary or if other ends on the opposit part occur not less profitable or necessary or if the ends proposed by Imprisonment may be attained another way it will then follow that if there be nothing of obligation on the Debtors part to render himself a Prisoner to the Creditor that then if the same can or may be avoided by flight the same in conscience may be done according to that of Cicero It was not fit perhaps to dismiss him being brought to Judgment but that he should be enquired after and brought to judgment was not necessary FINIS A Short Table of the Principal Matters contained in this Book Distinguished by Lib. for the Book Chap. for the Chapter and §. for the Paragraph Accessory Lib. Chap. § PYrat in the attempt kills a person by the Law Maritime the Slayer onely is Principall and the rest onely Accessories but by the Common Law otherwise 1. 4. 13 No Accessory to Pyracy can be tryed by virtue of the Stat. 28 H. 8. but he must be tryed in the Admiralty 1. 4. 23 26 Acceptance Acceptance of a Bill of Exchange what words amount to the same 2. 10. 15 20 Actions Actions of Trover will lye for an 8th or 16th part of a Ship 2. 1. 12 Admirals The reason of their power 1. 6. 5 Lib. Chap. § Admiral where 10th part of the Prize is due to him 1. 1. 〈◊〉 Admiral hath no Jurisdiction infra Corpus Com. 2. 2. 2 He may issue forth Commissions for the assembling of Court Martials 1. 14. 16 Execution of a Sentence of Death cannot be without his leave ibid. Agrument Made with Forraigners by the Commissioners of the Custome-House all persons Subjects shall have benefit of the same 2. 15. 3 Agreement for Freight where the same is determined by the fault of either party 2. 4. 3 Cannot be made with a Mariner for the Freightment of the Vessel 2. 4. 14 Averidge Vide Contribution Alien Not Capable of the Kings Pardon unless they were resident at the time the same was promulgated 3. 4. 7 Capable of taking but not of enjoying What they may hold and if they depart who will enjoy the same 3. 2. 1 Cannot transfer to his Heir to what he is disabled to hold 3. 2. 2 Alien marries an English Woman that is seized the Issue shall inherit 2. 2. 6 Though the Issue be born beyond the Seas shall inherit 3. 2. 7 Born in the Kings Dominions not Aliens Purchases Lands with a Natural born Subject to them and their heirs they are Joynt-Tenants 3. 2. 11 Aliens resident and Aliens travelling through France the difference bâ—…tween them as in reference to their Estates 3. 3. 8 Administration of an Alien's Estate may be committed to the next of Kin. 3. 3. 9 Diffâ—…rence between the Crowns of France and England in reference to the Births of persons born in places which they formerly possest 3. 3. 10 Alien in League his Action is only to be abated but in Enmity may conclude in barr 3. 4. 1 Alliances Alliances not determined by the death of the Prince 1. 7. 6 Ambassadors Where obliged not to Treat with any other but the Prince 1. 7. 4 How Regulated at the Congresse 1. 7. 5 Their Function 1. 10. 1 How protected though the Messengers of Rebels or Thieves 1. 10. 2 Violence or killing them how punishable 1. 10. 3 15 May be rejected and not received and when 1. 10. 4 Where punishable by the Lawes of Nations 1. 10. 5 6 14. 9 Are not to render account to none but to them that sent them 1. 10. 6 Not bound by any thing that is not malum in se jure gentium 1. 10. 10 Yet obliged to the formalities of Law 1. 10. 11 He may have Soveraign Jurisdiction over his Family by the concession of him with whom he resides 1. 10. 12 His Goods and Moveables cannot be seized on for any Civil matter 1. 10. 13 Ambassadors of Venice cannot receive any Present or preferment from any Forraign Prince or State 1. 10. 16 Bailio at Venice is the Ambassador for that Republique 1. 10. 6 Anchors Anchors may be placed for conveniency against the Owners will in other places 2. 9. 7 Not fastning of Buoyes to them punishable 2. 7. 7 Appeal Appeal lyes from the Commissioners of Assurances to the Lord Keeper 2. 7. 16 Assurance Assurances private and publique are both alike as in reference to the obtaining satisfaction 2. 7. 1 2 3 May be made on Ships or other things as well as Merchandize 2. 7. 4 Assurors are discharged upon the alteration of the property 2. 7. 13 They are not to answer
Grand-father and if the Father dyes in the life of the Grand-father the Grand-child though born after the denization doth not remove neither the personal nor consequential impediments or incapacity of the Father In collateral descents the Father a natural born Subject has issue two Sons Aliens who are both made Denizons and dyes without issue the other shall not inherite him A. an Alien marries an English woman who is seized of Lands and has issue the Father and Mother dyes yet the issue may inherite the Mother non obstante the incapacity of the Father being an Alien VII The Statute de Natis ultra Mare declares the issue born of an English-man upon an English-woman shall be a Denizon yet the construction has been though an English Merchant marry a Forraigner and has issue by her born beyond the Seas that issue is a natural born Subject But if an English-woman go beyond the Sea and there marry an Alien and have issue born beyond the Sea that issue are Aliens If an English-woman marries an Alien beyond the Seas and than comes into England and has issue they are not Aliens but may inherit My Lord Cook in his Commentaries on Littleton seems to be of opinion that if an Alien has issue two Sons born in England one dying without issue the other shall not inherit him But the Law is otherwise taken at this day as I conceive the reasons that have been given are I. Though the descent from one Brother to another Brother be a collateral descent yet it is an immediate descent and consequently if no disability or impediment can be found in them no impediment in another Ancestor will hinder the descent between them That this is an immediate descent appears First In point of pleading one Brother shall derive himself as Heir to another without mentioning any other Ancestor Secondly According to the computation of degrees Brother and Brother make but one degree and the Brother is distant from his Brother or Sister in the first degree of consanguinity and no more by the Laws of England According to the Civil Law Brother and Brother make but one degree for the Brother is in the second degree from the Brother yet both make but one degree According to the Canon Law Frater Frater or Frater Soror sunt in primo gradu And therefore the Laws prohibiting marriage between Kindred in the fourth degree takes Brother and Sister to be the first degree of the four The Laws of England in computation of the degrees of consanguinity agrees with the Canon Law and reckons the Brother and Brother to be the first degree Herewith agrees the Customs of Normandy which though in some cases differs from the Laws of England yet herein and in divers other particulars touching descents they agree Another evidence to prove that the descent between Brother is immediate is this viz. the descent between Brothers differs from all other collateral descents whatsoever for in other descents collateral the half blood does inherit but in a descent between Brother the half blood does impede the descent which argues that the descent is immediate The Uncle of the part of the Father has no more of the blood of the Mother than the Brother by the second venter the Brother by the second venter has the immediate blood of the Father with the Uncle viz. the Fathers Brother has not but only as they meet in the Grand father the Brother of the half blood is nearer of blood then the Uncle and therefore shall be preferred in Administration It is apparent that if in the line between Brother and Brother the Law takes notice how the Father was the medium thereof the Brother of the second venter should rather succeed the other Brother because he is Heir to the Father therefore in a descent between Brothers the Law respects only the immediate relation of the Brothers as Brothers and not in respect of the Father though it is true the foundation of their consanguinity is in their Father or Mother Again if the Father in case of a descent between Brothers were such an Ancestor as the Law lookt upon as the medium that derives the descent from the one Brother to the other then the Attainder of the Father would hinder the descent between the Brothers But the Attainder of the Father does not hinder the descent between the Brothers the reason is because the Father is not such a medium or nexus that is look'd upon by the Law as the means deriving such a descent between the two Brothers As for instance of three cases two whereof evince the first preposition viz. That although the descent from one Brother to another Brother though it be a Collateral descent yet is an immediate descent and that if no disability or impediment arises in them no impediment in another Ancestor will hinder them The younger Brother has issue and is attainted of Treason and dyes the elder Brother has title to a petition of right dyes sans issue without a restitution the younger Brothers Son has lost that title for though the title were in the Ancestor that was not attaint yet his Father that is the medium whereby he must convey that title was attaint and so the descent was obstructed Henry Courtney had issue Edward and was attainted of Treason and dyed Edward purchased Lands and dyed without issue the Sisters and Heirs of Henry were disabled to inherit Edward yet neither Edward nor his Aunts were attainted or their blood corrupted yet because Henry was the medium through whom the Aunts must derive their pedigree and consanguinity to Edward who was attainted the descent was obstructed till a restitution in blood But if the Grand-father of Edward had been attainted and not Henry this would not have hindred the descent from Edward to the Aunts because that Attainder had been paramount that consanguinity which was between Henry and his Sister and that is proved by this third case William Hobby had issue Phillip and Mary and was attainted of Treason and dyed Phillip purchases Lands and dyed without issue it was adjudged in that case that non obstante the Attainder of William Hobby Mary should inherit because the descent and pedigree between Phillip and Mary was immediate and the Law regards not the disability of the Father If the Heir of the part of the Father be attaint the Land shall escheat and shall never descend to the Heir of the part of the Mother but if the Son purchase Lands and has no kindred of the part of the Father but an Alien it shall descend to the Heirs of the part of the Mother IX Those that are born sub side legiantia obedientia Domini Reges are not Aliens and therefore those that were born in Gascoyne Normandy Acquitaine Turnay Callice Guyan whilst they were under the Dominion of the Kings of England were natural born Subjects and