charged and of all other that may renew in my minde and in shall for nothing lette that is for to say for franchise Lordship Kinreden aliance Freindship Love hatred Envye Enemitee for dred of lost of Goodnee for none other case that I shall soe doe the Kings Counseils my fellows mine owne will and truly hele what oute fraude or malengyn so God me help at the holydome and by this Book VIII And as the enquiry was strict so was the punishment very great Item qui fugiet a Domino vel Socio suo pro timiditate belli vel mortis in conductione Heretochii sui in expeditione navali vel terrestri perdat omne quod suum est suam ipsius vitam manus mittat Dominus ad terram quam ei antea dederat IX If such Persons shall so desert the service it hath been a question whether a private Person under the same obedience meeting with such a deserter might not put him to death it hath been conceived that he might and the Act is lawful and the party that slayes him hath a true right before God as impunity before Men But that is to be understood partly by the words and partly by the letter of the Law for if the Law gives indulgence to passion it takes away humane punishment and not the fault as in case a Husband kills an adulterous Wife or the adulterer in the act most certain it is a provocation in the highest nature and will justify the slayer But if the Law respect the danger of future evill by delay of punishment it is conceived to grant right and publique power to a private Man so that he is not then in the capacity of a private Man And upon that very reason Queen Elizabeth deny'd the constituting of a Constable for the Tryal of Sir Francis Drake who struck off the head of Doughty in partibus transmarinis X. Hence it is that every Man hath a licence given him to oppose force against plundering and pillaging Souldiers and the next the subsequent Law about deserters saith Let all Men know they have a power given them against publique robbers and desertors that run from their Colours and all are Ministers of revenge for the quiet of all to this purpose is that of Tertullian Against traitors or publique enemies every Man is a Souldier and herein differs the right of killing of exiles and Outlaws or those whom they call Bannitoes from those kind of Laws because there proceeds a special Sentence the Judgement of Banishment or Outlawry being promulgated but here a generall Edict the fact being evident obtains the force of a Judgement or Sentence pronounced the Judgement of the latter must be according to the Civil Law which yet remains still in force as to the Tryal of such deserters by which impunity for such killing seems allow'd off at this day by that Law CHAP. VII Of Dominion established by Creaties of Alliance equal I. Of Treaties by interview of Princes and where generally held II. Of Princes equal the honour pay'd by him in possession to him that comes to the Treaty III. Of Treaties by Princes unequal IV. Princes where oblidged to treat personally and where not V. Deputies their demeanor considered generally at Treaties VI Of the nature of Treaties generally and their ends and where they determine by the death or dispossession of a Prince and where not VII Of Treaties in reference to matters particular and of the nature of Leagues offensive and to what end VIII Of the causes ordinary procuring such Leagues IX Of Leagues tending to the procuring of general Peace and Warranty X. Of Leagues defensive and of their end together with considerations on the Persons with whom they are made XI Of accidents not provided for in the League how far in honour to be comply'd with XII Of Contribution the difficulty in regulating the same to the satisfaction of the parties interessed XIII Of Leagues concluded by Deputies and of the Ratifying the same XIV Of the causes extraordinary that tend to the breach of Leagues XV. Of the causes ordinary that give occasion for rupture of the same and from whence they proceed XVI Of the obligations on Confederates as in reference to mutual succours XVII Of Aide granted to particulars and common Allies when invaded by another Ally and of protection granted when a people are oppressed whether aide to such may stand with the League XVIII Whether the Oath taken for the performance of such a League is personal or binds the Successor and the general rule in construing of the same XIX Of Leagues made with Princes though driven out of their Country when the same are good I. TReaties are acted either by the interview of Princes or by Persons sufficiently Commissionate for that purpose Those that are by interview have been often disapproved though often practised but that depends rather of the Estate of affairs and the conformity and diversity of honours and manner of living of the Princes and their People then of the interview that of Lewis the 11th with Duke Charles of Burgundy and with the same King with Edward the 4th of England past fairly and in all such Treaties they govern themselves as in reference to their supplies according to the confidence which they repose in each other Places Neuter belonging to some Common Friend or or some Frontiere or Islands are generally appointed for the same together with what numbers or forces they are to be accompanied II. But if of two Princes the one goes home unto the other he is bound to do him the honour of his House And if the Prince be inferiour unto him he commonly snds forth some of Principal Officers of his Court to receive him but if he be his equal in Quality as being both Kings although there be some debate betwixt him for precedence if he comes first to the Place where the Treaty is to be made he must go in person and not by proxy In the interview that was between Lewis the 12th and Ferdinand of Arragon at Savona which then belonged unto the French King Lewis the 12th at the approach of Ferdinands Gally before he could land entered into it accompanied only with his Guard to testify his confidence and thereby to assure King Ferdinand of that which he had promised he should find in him and at their going to Land King Lewis left the Right hand to Ferdinand who lodged in the Castle as the most Honourable place and himself went to the Bishoprick III. By the Laws of Treaties when two Princes unequal in Quality partly the inferior is to come first to the place of congress there to attend the Greater IV. Ambassadors having received Orders to treat the Prince to whom such are sent are not by the Laws of Treaties bound to treat personally but only to depute some of his Councel for that effect the reason is for that the dignity of a Prince
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
him on the face and gave him a push on the back and after this he was Registred for a Freeman This being performed the Servant having his head shaven purposely at that time received a Cap as a Token of Liberty Tertullian observes That at this time of their Manumission the Servants received from their Masters a white Garment a Gold Ring and a new Name added to their former By the Laws of England every Subject Born within the Kings Dominions is a Freeman of this Realm as appears by the Grand Charter Cap. 14. yea though he be a Bond-Slave to a Subject But a Stranger Born is no Free-man till the King have made him a Denizon in whose Power alone without the help of any other one may be made Free To be a Freeman of the Realm the place of Birth is held more considerable than the Quality of the Person Yet by the opinion of Hussey Chief Justice in 1 R. 3. fo 4. And in Calvins Case of the Post Nati it is held for Law That if Ambassadors of this Realm have Children Born in France or else where the Father and Mother being Natural Born Subjects the Children are Free of the Realm of England But if either the Father or the Mother of such Children were an Alien then are not those Children Free But the Law is conceived to be otherwise at this day The Statute de Natis ultra mare 25 E. 3. Cap. declares the Issue Born of an English-man upon an English-woman shall be a Denizon for upon the Construction of this Statute it has been adjudged more than once That if an English-man marry a Foreiner and has Issue by her Born beyond Seas the Issue is a Natural Born Subject IX Disfranchising by the Romans called Capitis diminutio was Three fold Maxima Media Minima the least degree was when the Censors pulled a Man from a higher Tribe down to a lower and less Honourable or when by any Censure they disabled a man from suffraging or giving his Voice in the publick Assemblies such as were thus in the last manner punished were termed Aerarii and in aerarios veluti quia omnia alia jura Civium Romanorum preterquam tributi aeris conferendi amiserunt Gellius relates That P. Scipio Nascica and M. Pompilius being Censors taking a view of the Roman Knights observed one of them to be mounted on a lean starvling Horse himself being exceeding fat whereupon they demanded the Reason why his Horse was so lean himself being so fat his Answer was Quoniam ego inquit me curro statius mens servus By the Ancient Laws of England and by the Great Charter no Freeman shall be taken or Imprisoned but by the Lawful Judgment of his Peers that is by Jury Peers for Peers ordinary Juries for others who are their Peers or by the Law of the Land which is always understood by due process of the Law and not the Law of the Land generally for otherwise that would comprehend Bond-men whom we call Villains who are excluded by the word Liber for such Bond-men might be Imprisoned at the pleasure of his Lord but a Free-man neither could nor can without a just Cause nor does the Priviledge extend to private Actions or Suits between Subject and Subject but even between the Sovereign and the Subject Hence it is that if a Peer of the Realm be Arraigned at the Suit of the King for a Murder he shall be tryed by his Peers that is by the Nobles But if he be appealed of Murder upon the prosecution of a Subject his Tryal shall be by an ordinary Jury of 12 Free-holders and as the Grand Charter did and does protect the Persons of Free-men so likewise their Free-hold For by the same Charter it is declared That the King or His Ministers shall out no man of his Free-hold without reasonable Judgment and so it was rul'd upon a Petition in Parliament setting forth that a Writ under the Privy Seal went to the Guardian of the Great Seal to cause Lands to be seized into the Kings Hands and that thereupon a Writ issued forth to the Escheater to seize against the form of the Great Charter upon debate of which the Party had Judgment to be restored the greatest and most Explanatory Act which succeeded in point of Confirmation was that of Edward the 3d. the words are That no Man of what Estate or Condition soever he be shall be put out of the Lands and Tenements nor taken or imprisoned nor dis-inherited nor put to death without he be brought to answer by due process of the Law that is by the Common Law 2. Diminutio media was an Exilement out of the City without the loss of ones Freedom the words of the Judgment or Sentence were Tibi aquae igni interdico 3. Diminutio maxima was the loss both of the City and the Freedom and by his Judgment or Sentence was obliged and limited to one peculiar Countrey all other places in general being forbidden him There was a Fourth kind of Banishment Disfranchising called relegatio which was the Exilement only for a season as that of Ovid's The Laws of England in this matter have some resemblance with those of the Romans for Bracton observes 4 Distinctions 1. Specialis hoc est interdictio talis Provinciae Civitatis Burgi aut Villae 2. Generalis Interdictio totius Regni aliquando est 3. Temporaria pro duobus tribus quatuor aut pluribus annis aut c. 4. Perpetua pro termino vitae exilium est aliquando ex arbitrio principis sicut in exiliando Duces Hertfordiae Norfolciae per Regem Richardum Secundum aliquando per Judicium Terrae ut fit in Casu Piers de Gaviston etiam in Casu Hugonis de le Spencer Junioris qui ambo fuerunt exilit ' per Judicium in Parliamento So likewise was that of the Banishment of the Earl of Clarendon who dyed beyond the Seas X. Abjuration was also a Legal Exile by the Judgment of the Common Law as also by the Statute Law and in the Statute of Westm the second Cap. 35. He which Ravishes a Ward and cannot render the Ward unmarried or the value of his Marriage must abjure the Realm and this is a General Exile And by the Statute made 31 Ed. 1. Butchers are to be abjured the Town if they offend the Fourth time in selling measled Flesh and this is a Special Banishment A man Exil'd does forfeit these things 1. Hee looseth thereby the Freedom and Liberty of the Nation out of which he is Exiled 2. He forfeits his freedom in the Burrough or City where he was free for he which forfeits the Freedom of the whole Realm forfeits his Freedom in every part 3. The Law accounts him as one dead for his Heir may enter and so may his Wife enter into her own Lands and may sue
an Action as a Feme sole 4. He shall forfeit those Lands which he shall purchase in the Realm during his Banishment for he during his Banishment is as much disabled to purchase as an Alien for fit alienigena by his Banishment and he is observed to be in a worse Condition than an Alien for he is marked with Indignatio principis 'T is true he cannot forfeit neither Title of Honour nor Knighthood nor the Lands he had before Exile unless there be special Sentence or Judgment as that of the Spencers If the Father be in Exile this hinders not the Freedom of the Son for the same is not a thing descendable for should it be so then the Banishmens of the Father would make a Forfeiture of the Freedom but the Son has this Freedom by his own Birth as a Purchase and not by the death of his Father by descent Like the Case where J. S. hath many Children and then he confesseth himself a Villain to J. D. in Court of Record yet his Children formerly Born are Free-men and no Villains the Reason is because they were Free by their own Births but the Inheritance is Inthralled because it is to come to the Heir by descent XI A Free-man of a City or Burrough may be made divers ways as my Lord Cooke observes 1. By Service 2. By Birth by being the Son of a Free-man 3. By Purchase or Redemption At Bristol by Marriage Sir John Davies in his Irish Reports observes the same for Law St. Paul was born at Tarsus in Cicilia which was under the obedience of the Romans by vertue of which he challenged the priviledge of a Roman Citizen but it was accounted no more than a National Freedom like that of Calvin who claimed the general Freedom of an English-man being born in Scotland but under the obedience of the King of England but that Challenge made not St. Paul Free of the Private Customs Priviledges and Franchises of Rome no more than Calvins Birth made him a Free Citizen of London to the particular Customs of that City The King by his Letters Patents cannot make one a Free-man of London yet he may thereby make him a Free-man of his Kingdom If one be Born in a City of Parents that are not Free the Child hereby is no Citizen by Birth and if one be born of Free Parents out of the place of Priviledges as London c. he yet is a Free-man by Birth yet in the Charter Granted to Yarmouth the words were concessimus Burgensibus de magna Yarmutha de Villa praedict ' Oriundis that they should have such and such Liberties So that Special words may alter the Case London had many Royal Franchises granted them from time to time and were often by former Kings successively confirmed nor wanted they a share when the great Charter was granted to have their ancient liberties secured nor were the succeeding Princes slack in their Royal grants and confirmations but especially Richard the Second who in Parliament granted and confirmed to them all their ancient customes and liberties with this clause Licet usi non fuerint vel abusi fuerint and notwithstanding any Statute to the contrary amongst the number of their many Priviledges the freedom of the same was accounted of no small importance since in divers Parliaments it was very much aimed at and endeavoured to be impaired but at last they obtained a most gracious and Royal Confirmation in Parliament of their ancient liberties amongst which it is declared that no Merchant being a Stranger to the Liberty of the said City should sell any Commodities within the Liberty of the said City to other Merchant-Strangers nor that such Merchant-Stranger should buy of anyother Merchant-Stranger such Merchandize within the Liberty of the said City without forfeiture thereof saving that any Person Lord Knight c. may buy within the Liberties of any Merchant-Stranger Merchandizes in gross for their own use so that they do not sell them again to any other And as this City by Custom may pre-clude any Person not being free of the same to sell in such manner upon such pain so any other City which are Burroughs or Cities by prescription within this Realm may have the like Custom and the goods sould or bought by such may be subjected to forfeiture but the same cannot be good by Charter or Grant A compleat Free-man is such a one as hath challenged his freedom and taken the Free-mans Oath and is admitted into the Society and Fellowship of the Free-men Citizens and Burgesses otherwise he hath but a bare right to his freedom CHAP. II. Of Aliens as in relation to their Estates real and personal I. Of an Alien his ability and disability in the taking and enjoying of Estates real and personal II. Of his capacity in purchasing and disability to transfer by an hereditary descent III. Of the rules of descents according to the Laws of several Countreys IV. Of descents according to the rules of the Common Law of England lineal and collateral V. Of Impediments in one that is not the medius antecessor VI. Of Impediments in one that is the medius antecessor lineal and collateral VII Of the Statute of Natis ultra Mare and of issues born beyond the Seas VIII The Lord Cokes opinion that if an Allien has issue two Sons Denizons the one purchases Lands and dyes the other cannot inherit them debated and refuted IX Of Foreign births which do not create a disability X. Of Aliens not disabled by Law to bring either real or personal actions XI Of Office that must entitle the King to an Aliens Estate XII Of some particular immunities and other matters relating to an Alien AN Alien is one born in a strange Countrey under the obedience of a strange Prince and State and out of the legeance of the King of England and can have no real or personal action for or concerning Lands and therefore if he purchase Lands Tenements and Hereditaments to him and his Heirs albeit he can have no Heir yet he is of capacity to take a fee-simple but not to hold for the King upon Office found shall have it by his Prerogative So it is if he purchase Lands and dyes the Law doth cast the free-hold and inheritance upon the King But if he purchase or take a Lease for years of a House or Ware-house which is for the accommodating him as a Merchant-stranger whose Prince or State is in League with ours there he may hold the same for that the same is incident to Commerce And in that case if he departs and relinquishes the Realm the King shall have the same so it is if he be no Merchant The like Law is if he takes a Lease of Meadows Lands Woods or Pastures the King shall have the same for the Law provides him nothing but a habitation to Trade and traffique in as a Merchant II. Though he may take
resist may happen to be slain yet the fault will lie at their own doors for hindering the execution of right and that which the Law most justly approves of XIX This right of changing of Dominion is so odious that in the taking of Goods if by any possibility the right Owners may have restitution the same has been done and though a larger then 24 hours may happen between the capture and recapture and so may pernoctare with the Captor yet restitution may be made And therefore if he who hath Letters of Mark or Reprisal takes the Ships and Goods of that Nation against whom the same are awarded and brings the same into a Neuter Nation the Owners may there seize her or there the Admiral may make restitution by Law as well the Ship 's Goods to the Owners as the Persons captives to their former liberty for that the same ought first to have been brought infra Praesidia of that Prince or State by whose Subjects the same was taken And wth this agrees the Common Law for a Dunkirker having taken a French Vessel sold the same at Weymouth whether it had been driven before it was brought infra Praesidia Dom. Regis Hisp. it was in such case rul'd that if a Ship be taken by Piracy or Letters of Mark and Reprisal and is not brought infra Praesidia of that Prince or State by whose Subject the same was taken the same could not become lawful prise nor were the Owners by such a caption divested of their property But if the Caption be Ships of War the property will be immediately in the Captors and never divested unless afterwards vis manu forti be in Battle regained XX. Upon the sharing the Spoil of the captivated Ships regard is had to the Ships present not the Captors only for his reward must be the encouragement of his Prince like the Roman Coronas of which there were various according to the atchievement of the Conqueror in imitation of which our Soveraign in his Royal encouraging Medals follows the example to his deserving Commanders as so many Ensigns to enflame Noble Souls to the performing Acts of Glory and Renown I say the profits of Prises are to be equally divided amongst the Ships present and not solely to the Captor for if Letters of Reprisal are granted to two Ships and they happen both of them at Sea to meet a prise and the one attaques and enters her by means of which she becomes absolute the Conquerors yet the other hath right to an equal distribution with the Captor both in Ship and Goods although he did nothing in the Conquest the reason is for although he mist the opportunity of taking her yet the presence of his Vessel armed and prepared for Battle at the time of taking became a terrour to the Ship that was so conquered And by the Law presumed siue ejus that the other Ship would not or could be so taken which Law hath passed the current and approbation of the Common Law as reasonable just and equitable and may be pretended or surmised to entitle the party Captor to the making restitution of a moyety to his Companion then present But if it should so happen that those to whom Letters of Mark are granted should instead of taking the Ships and Goods of that Nation against whom the same were awarded take or spoil the Goods of another Nation in amity this would amount to a down-right Piracy And the Persons offenders should for such fault create a forfeiture of their Vessel and the Owners must be for ever concluded by the same notwithstanding such Commission XXI Therefore Letters of Mark or Reprisal issue not without good and sufficient caution first given for the due observance thereof according to Law the transgression of which creates a forfeiture of the same And therefore having taken a prise and brought the same intra Praesidia the Captor must exhibite all the Ship Papers and captived Marriners to be examined in order to adjudication till when Bulck ought not to be broken without Commission nor may the Captain of the Captor suffer an imbezlement of the lading or sell Barter or dispose of any part without Commission for the King hath a proportion in all prises Such Goods so brought in are not subject to pay Customs XXII By the Law of Nations ipso facto the Dominion of the things taken by those to whom Letters of Mark are granted become the captors till the debt and costs that is the original dammage and subsequent charges are satisfied which being done the residue ought to be restored So the Venetians used their equity having taken the Ships of Genoa did not spoil any of the lading but preserved the same very carefully till the debt being pay'd which done restitution was made of the things entirely without diminution XXIII When for the fault perhaps of a few a debt becomes National by reason of which the Goods of the Innocent become lyable if taken for satisfaction whether by the Law of England the Party ought to have Contribution most certain by the Common Law where more are bound to one thing and yet one is put to the whole burden the Party may have process called Contributione facienda for his releif but when a debt becomes universal or National it seems otherwise For if one lends my Country mony I will not call my self debtor yet I will pay my share so it may seem equitable by the Laws of Charity though not compellable by the Laws of the Land XXIV Yet when depradations have happened to Forraign Merchants and complaint hath been made the Kings of England have often issued forth Commissions to enquire of the same and so it was done upon the Petition of some Merchants of Genoa who complain'd against the Inhabitants of the Isle of Garnsey for a depradation in taking away and detaining their Merchandize and Goods to the value of many thousands of pounds out of a Ship wracked by tempest near that Isle by which the Commissioners were impowr'd to punish the offenders and to make restitution satisfaction for the dammages The like complaint was made by the Merchants of the Duke of Britain of certain depradations committed by the Subjects of the King of England who issued forth the like Commission and to give them reparation and damages for the same so that if the Subjects of the King of England have had their Goods by way of Reprise for the satisfaction of such debt or dammage they may have the benefit of the like Commissions to lick themselves whole out of the estates of the offenders CHAP. III. Of Privateers or Capers I. Of Privateers whether allowable by the Laws of Nature II Of permission of such by the Laws of Nations III. The occasion of their first Institution IV. Whether it be lawful to undertake such an Employment V. Of Commissions generall to endamage an Enemy VI. Of Commissions special and
the Fellow Subject of the Captors or of Nations in Amity with his own Soveraign make restitution to the Owner the costs and charges and what other things in equity shall be decreed to the Captor first considered and deducted XX. By the Status of 27 Edw. 3. cap. 13. if a Merchant loose his Goods at Sea by Pyracy or Tempest not being wrackt and they afterwards come to Land if he can make proof they are his Goods they shall be restored to him in places Guildable by the King's Officers ' and six Men of the Country and in other places by the Lords there and their Officers and six Men of the Country This Law hath a very near relation to that of the Romans called De Usu-Captione or the Atinian Law for Atinius enacted that the Plea of Prescription or long possession should not avail in things that had been stoln but the interest which the right Owners had should remain perpetual the words of the Law are these Quod surreptum est ejus rei aeternitas auctoritas esset where by Auctoritas is meant Jus Dominii XXI Yet by the Common Law of England it has been held that if a Man commit Pyracy upon the Subjects of another Prince or Republique though in League with us and brings the Goods into England and sells them in a Market Overt the same shall bind and the Owners are for ever concluded and if they should go about in the Admiralty to question the property in order to restitution they will be prohibited XXII This offence was not punishable by the Common Law as appears by the preamble of the Stat. of 28. H. 8 cap. 15. but the same was determined and judged by the Admiral after the course of the Civil Law but by force of the said Act the same is enquired of heard and determined according to the course of the Common Law as if the offence had been committed on Land XXIII This Act does not alter the offence or make the offence Felony but leaves the offence as it was before this Act viz. Felony only by the Civil Law but giveth a mean of Tryall by the Common Law and inflecteth paines of death as if they had been attainted of any felony done upon the Land The Indictment must mention the same to be done upon the Sea A Pardon of all Felonies does not extend to this offence but the same ought especially to be named Though there be a forfeiture of Lands and Goods yet there is no corruption of Blood There can be no Accessory of this offence tryed by virtue of this Statute but if there be an Accessory upon the Sea to a Pyracy he must be tryed by the Civil Law The Statute of 35 H. 8. cap. 2. taketh not away this Statute for Treasons done upon the Sea Clergy is not allowable to the party on the Statute 28 H. 8. vide 14. Jac. in B. R. Moore 756. placet 1044. Though a Port is Locus publicus uti pars Oceani yet it hath been resolved more then once that all Ports not only the Town but the Water is infra corpus Comitatus If a Pyrat enters into a Port or Haven of this Kingdom and a Merchant being at Anchor there the Pyrat assaults him and robs him this is not Pyracy because the same is not done super eltum Mare but this is a down-right robbery at the Common Law for that the Act is infra corpus Comitatus and was inquirable and punishable by the Common Law before the Statute of 28 H. 6. cap. 15. XXV So If such a Pyracy be made in a Creek or Port in such cases it has been conceived that Clergy is allowable upon the Stat. of 28 H. 8. but if it be done super altum Mare there no Clergy is allowable by the Pardon of all Felonies at the Common Law or by the Statute Law Felony super altum Mare is not pardoned for though the King may pardon this offence yet being no Felony in the eye of the Law of this Realm but only by the Civil Law the Pardon of all Felonies generally extends not to it for this is a special offence and ought especially to be mentioned XXVI A Man attainted by virtue of that Statute forfeits his Lands and Goods yet there works no corruption of Blood by virtue of that attainder nor can there be any Accessory of Pyracy by the Law of this Realm but if it falls out that there is an Accessory upon the Sea such Accessory may be punished by the Civil Law before the Lord Admiral but he cannot be punished by virtue of this Act because it extends not to Accessories nor makes the offence felony XXVII If one steals Goods in one County and brings them into another the Party may be indicted in either County but if one commits Pyracy at Sea and brings the Goods into a County in England yet he cannot be indicted upon that Statute for that the originall taking was not felony whereof the Common Law took conuzance XXVIII If a Man is taken on suspition of Pyracy and a Bill is preferred against him and the Jury find Ignoramus if the Court of Admiralty will not discharge him the Court of Kings Bench will grant a Habeas Corpus and if there be good cause discharge him or at least take Bayle for him But if the Court suspects that the Party is guilty perhaps they may remand him and therefore in all cases where the Admiralty legally have an original or a concurrent Jurisdiction the Courts above will be well informed before they will mdedle If a Man be in custody for Pyracy if any aids or assists him in his escape though that matter is an offence at Land yet the Admiralty having Jurisdiction to punish the principal may have likewise power to punish such an offender who is lookt upon quasi an Accessory to the Pyracy but to rescue a Prisonner from an Officer of theirs they may examine the cause but they cannot proceed criminally against the offender XXIX Antiently when any Merchants were robbed at Sea or spoiled of their Goods the King usually issued out Commissions under the Great-Seal of England to enenquire of such depradations and robberies and to punish the Parties and for fraudes in Contracts to give dammages to the Parties and proceed therein secundum Legem consuetudinem Angliae secundum Legem Mercatoriam Legem Maritimam all three Laws included in the Commissions One Marsh a Fisherman being at Sea was taken by Pyrats and all which he had after that the Pyrats took another Ship belonging to the Dane and the Pyrats having rifled the Ship and taken the best of the Goods of the Danes the Pyrat put aboard the Fisherman and so suffered him to depart who landing here went immediately to Dr. Talbot a Civilian and shewed him all this matter and desiring his advice who directed an Inventory to be
Recovery some have held that the Defensive did not extend so far notwithstanding if there were no Treaty which had concerned this Conquest yet it would seem more reasonable to comprehend the Recovery in the defensive if it be general For as it hath for its end to preserve the Allie in his State and that to attain unto it the Forces must not only remain in the Countrey of the Allie to attend the Enemy but after denunciation and other acts of hostility done by the Enemy they must enter into his Country to the end to prevent him or divert him from attempting any thing against the Allie The Offensive being judged by the aggression â—…and not by that which follows by a stronger reason they ought to enter into the Countrey conquered from the Allie for the recovery thereof but excuses in this kind proceed from those who fail in their faith courage or means to recover Contribution is one of the main ingredients in a League and is of great difficulty to regulate It is made either in Men or Money the Men are entertained by all Parties or by him only that hath need or otherwise as the League is Henry the 8th made a League with Francis the French King against the Emperor Maximilian and Ferdinand for the Recovery of Millane which he did the protection of his Neighbours and Reduction of the Swisse from the Imperial side for which he employed the Bastard of Savoy the agreement was of reciprocal Succour of 10000 Men if the War were made by Land and of 6000 if it were made by Sea and in all other occasions the French King was bound to assist the King of England with 12000 Launces and the King of France with 10000 Foot at his charge that had need So where Contribution is concluded for Money there are difficulties that do arise from the Person or Place where it must be kept for to deliver it to the hand of the strongest is not safe for fear they shall not be able to call him to account to lay it in a weak Place were to oppose it to the attempt and force of the strongest or to him that shall first take Armes but it has been usual the summe has been advanced not till after the War begun XII Leagues concluded by the Deputies of the Confederates there sometimes falls out a Difficulty who shall ratify and declares himself first In the League which was made between Francis the first the Pope and the Princes of Italy the King refused to ratify until the Pope and Venetians had ratify'd before him and in that he so cunningly wrought that he procured the Colleagues to declare and begin the War whilst that he treated secretly for himself to the end he might make his Conditions with more advantage this he declared was for fear those Italian foxes should shew him the like XIII Leagues made for an Enterprise succeed seldom according to the hope of the Allies if the Enterprise be long for besides the preparations be long the opinions divers in the pursuit the resolutions inconstant the interests of Princes or States in a League may change with time or with the practise of him against whom they are in League in withdrawing some one of them or making him to suffer more losse then the rest for seeing himself ill defended or succoured by his Confederate and that he was in a greater danger to loose then his Companions he then studies to retire and to make his accord apart as did the Venetians with the Turks after the losse of Cypresse XIV The ordinary causes of the Rupture of Leagues are distrust jealousy as if one hath had conference with the Enemy without the consent of the rest if that which serveth for the safety of one diminish the safety of the other inconstaney variety cowardize division usurpation without the consent of the others So if he treats with the Enemy not comprehending the other Allies but as adherents as Lewis the 12th left the League of the Venetians for that they had made a Truce with him and had presumed to name him only as an Adherent by the opinion of Bryan that if all the Subjects of England would make War with a Confederate Prince or Republique in League with the King of England without the assent of the King of England that such a War was no breach of the League and upon the same reason was the resolutions of the Judges in the the Duke of Norfolk's Case where the Question was whether the Lord Herise and other Subjects of the King of Scots that without his assent had wasted and burnt divers Towns in England and proclaimed Enemies were Enemies in Law within Statut of 25 E. 3. the League being between the English and Scots and resolved they were and that the League remain'd XV. The Succours that one Confederate must afford another Confederate according to the Laws of Leagues against Confederate is of a great consequence Three Princes Allied the one makes War against the other and demands succours from the third in this case if the Treaties of Alliance be only for Friendship it is certain he is not bound to give any succours But if the Treaty carries an Offensive League he must succour the most antient allied by a precedent alliance If the precedent Alliances have been made both at one time he must succour him that is allied in all Offensive and Defensive Leagues but if the League be Offensive and Defensive of either side he ought not to succour either but he may mediate a Peace and cause the difference to be judged by the Common Allies which being propounded with a Declaration that the refuser or having once submitted will not yield to Judgment that he will succour the other as the Swede and Swiss upon severall occasions hath done notwithstanding in point of State in such occasions they usually ballance their Estate and looking more to safety then Justice they succour him who being enforc't may weaken the powerful who is more to be feared yet to unjust Wars there is no obligation then certainly he ought to be preferred who hath a just cause of War XVI By the Laws of Alliances Princes may aide particular and Common Allies if they be wronged by one of the Allies But he which is not comprehended in the Treaty of Alliance cannot be defended against him that is allied without breach of the Alliance therefore Mediation in such cases is the only hopes of ahe oppressed which not having its effect if the oppressed put themselves into the protection of the Mediator they then become in the nature of his Subjects and then that Prince is oblidged to their succour and defence even against his Allies and this is by natural right XVII By the Laws of Leagues though the Oath binds only the Person yet the Promise binds the successor for though some do hold that Leagues do depend upon the
Oath as their firmament though that is not so for the most part of the efficacy of such Leagues rests in the promise it self to which for Religion sake the Oath is added Hence it is that Promises made to a Free-People are in their nature real because the subject is a permanent matter although the State or Republique be changed into a Monarchy yet the League remains for that the body i. e. the power is still the same though the Head be changed And the Person is incerted into the agreement not that the agreement may be personal but to shew with whom it is made for if it be incerted into the League that it shall be perpetual or that it is made for the good of the Kingdom or with the Person and his Successors or for a time limited the same does most apparently demonstrate the thing to be real However in all Leagues which tend to Peace though there may remain somewhat whereby words of ambiguity may arise yet the most pious way of interpreting hath been to account the same rather real then Personal for all Leagues made for Peace or Commerce admit of a favorable construction Leagues defensive have more of favour offensive of burthen XVIII Leagues made with Princes although they happen afterwards to be driven out of their Kingdoms by their Subjects yet the League remains firm and good for the Right of the Kingdom remains with such an unfortunate Prince notwithstanding he hath lost his Kingdom on the other hand Leagues made with the Invader cannot be good for his cause being unjust is odious but if the people will make him King de facto and investe him the question is then out of all controversy for then he is become a King regnant and by the Laws of England if treason by committed against his Person and after he is beaten out and the King de Jure comes to his Crown the King de Jure may punish those Traytours with death The Earl of Warwick having raised an Army in France and Flanders invaded England and within five or six daies after his landing King Edwards Forces betraying him the Earl became Master of the Realm the King flying for protection to his Kinsman the Duke of Burgundy he kindly in his misfortunes entertained him yet while he was in this banished estate the Duke of Burgundy renewed the League with the English it being agreed that notwithstanding King Edwards misfortune the League remained firm and unviolable between the Duke Charles of Burgundy and the King and Realm of England So that for Edward they should name Henry who was newly taken out of the Tower by the Earl of Warwick at his chacing out of King Edward now the true reason that Leagues remain and are firm notwithstanding such a change is because there goes along with them a tacite condition viz. of holding their possessions and therefore the World wondred not that His late Sacred Majesty having sworn a League with the King of Spain expresly as he was King of Portugal did notwithstanding receive two Embassadors from the then new King of Portugal and that without being judged either in England or Spain to have broken his former Oath and League The Duke of Guise having formed the League against Henry the Third which was that in regard the King was so cold in the Profession of the Romish Faith that it was in danger to be extinguisht by the increase which he permitted of the Reformed Religion especially seeing Henry the Fourth then King of Navar was of that Religion and was to succeed to the Crown wherefore by the Mediation of Philip the Second of Spain the Pope qualified the Duke of Guise Head of that Catholique League and which in point of Government was to set him above the King avowed him Protector of the Catholique Faith in the Kingdom of France When Henry the Fourth succeeded the Crown then this League for security of Religion was most violent and the Spaniard without hoped by nourishing thus the division within to carry all for himself at last To avoid which gin and to answer all the King chang'd his Religion and negotiated by d'Ossat to be received by the Pope as a dutyful Son of the Church of Rome demanding absolution for what was past and making large promisses of due obedience for the time to come the King of Spains interest was that he should not be received and thereupon he endeavoured to perswade the Pope that King Henry did but dissemble with him and that under this disguise he would easiest ruine the Romish Religion notwithstanding this the Cardinal obtained his Reception Absolution and Benidiction through the many promises and presents which he made to His Holyness whereupon the Spaniards designes were in a moment all blown over from France but fell heavily upon the United Provinces which were sorely opprest for that they apprehended the loss and ruine of their Countrey and thereupon they implored assistance from King Henry who received their Ambassadours very gratiously and gave them assurance of relief The King of Spain who wanted no good intelligence in the Court of France immediately remonstrates to the Pope that his former inclinations concerning Henry's dissimulations did now appear in the face of all the World and that seeing His Holyness had been so credulous he knew not now whether they should be able to save the Catholique Faith from being subjected to the Reformed Religion or no for whereas the Hollanders had revolted from him only because he resolved to use the true means for the establishment of the Romish Faith among them and that now he was in a fair way of reducing them which conduced so much by his Holiness his opinion to the establishment of the Romish Faith Henry had taken their party against him in that work and that at Paris he had received their Ambassadors to that purpose although he knew they were his lawful Subjects c. This startled the Pope not a little who charged d'Ossat for having betrayed him and put the Church in danger this argument was as subtil on the Spaniards side as changing Religion was on King Henry's and therefore the Cardinal was not a little perplext how to answer it to the advantage of his Master as also coherently to the considerations of his former reception into the Church But at last he replyed That His Holyness needed not wonder how in reason of State those different Religions might joyn together for political ends without hazard of altering Religion Thus David sought protection of the Philistians and Abraham redeemed the sinful Sodomites That he took it to be upon the same ground that His Holyness himself not long before received a Persian Ambassador who was so far from being an Heretick that he never pretended to the Name of Christian that it was a plausible argument which the King of Spain used in complaining of Henry's receiving and avowing their Ambassador especially knowing
it concerns the King and his publique Ministers to protect them and procure their protection in forreign Kingdoms in the nature of an Office and Negotiation of State therefore their Quality is to Mediate and prosecute for them or any one of them at the Councel Table which is as it were a Court of State but when they come to settled Courts which does and must observe essential formes of proceedings scil processus legitimos they must be governed by them And therefore in the Case of Don Diego Serviento de Acuna Ambassador Leger for the King of Spain who libelled in the Admiral Court as Procurator General for all his Masters Subjects against one Jolliff and Tucker and Sir Richard Bingley for two Ships and their lading of divers kinds of the Goods of the Subjects of the King of Spain generally and not naming of them adduct ad Port de Munster in the Preface of the Libel generally against them all and then proceeds and charges them severally thus That Jolliff and Tucker Captain Pyrate in alto Mare bellico dictas Naves aggressi sunt per vim violentiam took them and that they were adductae in partes Hiberniae and that they came to the hands of Sir Richard Bingley and he converted them to his own use not saying where and refuseth to render them being required it was there held that a Prohibition should go for the matter is tryable meerly at the Common Law and that such a Procuration was not good Don Alonso de Valesce Ambassador from the Catholique King attached Tobaccoes at Land here which one Corvero a Subject to the King of Spain brought hither and the Ambassador by his Libel supposed to belong to his Master as Goods confiscated as all others his Goods were Sir John Watts the Plaintiff in the suggestion pray'd a Prohibition which was granted accordingly for the property of Goods here at Land must be tryed by the Common Law however the property be guided and it was likewise rul'd that if any Subject of a Forreign Prince bring Goods into this Kingdom though they were confiscate before the property shall not be questioned but at the Common Law Don Alfonso vers Corvero Mich. 9 Jac. Hob. 212. Hill 9 Jac. upon the like Libell by Don Pedro Surega Ambassador for Spain XII Whether an Ambassador hath Jurisdiction over his own Family and whether his House be a Sanctuary for all that fly into it depends upon the concession of him with whom he resides for this belongs not to the Law of Nations †and it hath been seen that an Ambassador hath inflicted punishment on his own Servants and Vassals as the Muscovite did here in England but for Fugitives that fly into their Houses nay their own Servants if they have greatly offended cannot be drawn forth by force without a demand and refusal which then done it is then become as an offence in them XIII Most certain by the Civil Law the movable Goods of an Ambassador which are accounted an accession to his Person cannot be seized on neither as a pledge nor for payment of a debt nor by Order or Execution of Judgement no nor by the King or States leave where he resides as some conceiue for all coaction ought to be far from an Ambassador as well that which toucheth his necessaries as his Person that he may have full security if therefore he hath contracted any debt he is to be called upon kindly and if he refuses then Letters of Request are to go to his Master so that at last that course may be taken with him as with Debtors in another Territory to some this may seem hard yet Kings who cannot be compelled want not creditors but the Lord Coke seems to be of another opinion for as to Contracts and Debts that be good Jure Gentium he must answer here XIV If an Ambassador commits any private outrage against one of the Princes Subjects with whom he resides unless it be to defend the Dignity of his Charge or of his Master it has been conceived by some not to be justifiable before the Prince with whom he resides for say they there is a great difference between the Dignity and Authority of the Prince in the Countrey of another Soveraign for say they he may well retain his Dignity but not his Authority usually injuries of that nature being done they have admitted debates at a Councel of State where the Soveraign with whom the Minister of Stare hath resided being satisfied that reparation ought to be made to the party injured he hath been ordered or at least requested to comply with the same XV. But on the other hand if any private outrage be committed by the Subjects of that Prince with whom he resides upon his Person the offenders may be subjected to punishment and the Queen of Sweden having made the Incomparable Grotius after he had escaped by Providence out of Prison by a greater from his Country-Men her Ambassador for that Crown with Lewis the 13 th with whom he resided at Paris coming one day from St. Germans the Secretary of Ceremonies being in the Coach with him it chanced that in one place as they passed a great number of People were in the way seeing of an execution his Postillion and Coach-man driving boldly through the company the Archers then attending the execution with short pieces concerned somewhat angerly that the execution was disturbed made after the Coach shot his Postillion and Coach-man and through the Coach even through his hat the matter coming to be examined the King ordered 3 or 4 of them to be hang'd but that Good Man first pardoned them himself and then obtained the King's XVI The Republique of Venice imployeth generally more Ambassadors abroad then any other State and they are as other Princes be Ordinary and Extraordinary the Commission of the Ordinary continueth for 3 years but he which resides at Constantinople is not call'd Ambassador but Bailio residing there perpetually and that Republique allowes him a greater provision to support his Grandeur then to any other and by the Laws of Venice whatsoever he expends is allowed him upon his accounts without any examination the which no other of their publique Ministers of State have like priviledge By the Laws of Venice there can be no Extraordinary Ambassador imploy'd unless they have been Ambassadors formerly and upon their return are strickly examined of their comportment in their Legation and are to discover what Presents they have received from the Prince or State to whom they are sent the concealment of which is of a dangerous consequence Nor may any of their Ambassadors receive any preferment from any other State during their Legation The Patriarch of Aquilia dyed and Hermolao Barbaio being there Ambassador for that Republique the Pope conferred on him that Ecclesiastical Dignity and made him a Cardinal which being known at Venice notwithstanding he was a Person of great desert
receive their proportions yet the fifth man may sue singly by himself without joyning with the rest and this as well by the Common Law as the Law Maritime XII A Ship in her Voyage happens to be taken by an Enemy afterwards in Battle is retaken by another Ship in Amity and restitution is made and she proceeds on in her Voyage the Contract is not determined though the taking by the Enemy divested the property out of the Owners yet by the Law of Warr that possession was defeazeable and being recovered in Battel afterward the Owners became re-invested so the Contract by fiction of Law became as if she never had been taken and so the entire Freight becomes due XIII If Freight be taken for 100 Tuns of Wine and 20 of them leak out so that there is not above 8. inches from the Buge upwards yet the Freight becomes due One reason is because from that gage the King becomes entitled to Custome but if they be under 8. inches by some it is conceived to be then in the Election of the Freighters to fling them up to the Master for Freight and the Merchant is discharged But most conceive otherwise for if all had leaked out if there was no fault in the Master there is no reason the Ship should lose her Freight for the Freight arises from the Tunnage taken and if the leakage were occasioned through storm the same perhaps may come into an Averidge Besides In Burdaux the Master stowes not the Goods but the particular Officers appointed for that purpose quod Nota. Perhaps a special convention may alter the case Most certain if a Ship Freighted by the great be cast away the Freight vanishes but if by the Tun or Pieces of Commodity and she happens to be cast away afterwards part is saved doubted whether pro rata she ought not to be answered her Freight XIV If a Merchant takes Freight by contracting with a Marriner that is not a Master he must be contented to sit down without any remedy against the Owners but perhaps such a Marriner for such act may subject himself to an action But if there be a fault committed by a Marriner which was hired or put in by the Master or Owners there for reparation the Owners become lyable XV. The Master is not bound to answer Freight to the Owners for passengers if they are found to be unable to pay If a Ship by Charterparty reciting to be of the Burden of 200 Tuns is taken to Freight for a sum certain to be paid at her return the sum certain is to be paid though the Ship amounts not to that Burden If a Ship is Freighted after the rate of 20 l. for every moneth that she shall be out to be paid after arrival at the Port of London the Ship is cast away coming up from the Downs but the Lading is all preserved yet the Freight is become due for the money arises due monthly by the Contract and the place mentioned is onely to shew where payment is to be made for the Ship deserves wages like a Marriner who serveth by the month and though he dyes in the Voyage yet his Executors are to be answered pro rata Besides the Freight becomes due by intendment on the delivery or bringing up of the Commodities to the Port of London and not of the Ship If the Master enters into a Charterparty for himself and Owners the Master in that case may release the Freighters without advising with the Owners but if the Owners let out to the Freighters such a Ship whereof J. S. is Master though the Master Covenant in the same Charterparty and subscribes yet his Release in that case will not bind the Owners but the Owners release on the other hand will conclude the Master And the reason is for that the Master is not made a proper party to the Indenture And so it was Rul'd where an Indenture of Charterparty was made between Scudamore and other Owners of the good Ship called the B. whereof Robert Pitman was Master on the one party and Vandenstene on the other party In which Indenture the Plaintiff did Covenant with the said Vandenstene and Robert Pitman and bound themselves to the Plaintiff and Robert Pitman for performance of Covenants in 600 l. and the Conclusion of the Indenture was In witness whereof the said Robert Pitman put his hand and seal and delivered the same in an Action of Debt brought upon the Bond for performance of Covenants the Defendant pleaded the Release of Pitman whereupon the Plaintiff demurred And it was adjudged That the Release of Pitman did not barr the Plaintiff because he was no party to the Indenture And the diversity in that case was taken and agreed between an Indenture reciprocal between parties on the one side and parties on the other side as that was for there no Bond Covenant or Grant can be made to or with any that is not party to the Deed but where the Deed indented is not reciprocal but is without a Between c. as Omnibus Christi fidelibus c. there a Bond Covenant or Grant may be made to divers several persons CHAP. V. Of Wreck I. Of Goods Wreckt as in relation to the alteration of the property by the Civil Law II. Of the preservation of Goods Wreckt and the punishment of those that should add misery to the condition of such persons so distressed III. Of Goods Wreckt their preservation according to the Lawes of Oleron and of England and of the punishment of those that shall not make restitution IV. Of contribution where the Ship perishes and the Goods are all saved and where not V. The King of Great Britain's Prerogative as in relation to Wreck and other Royalties of the Sea VI. Of Flotsam Jetsam and Lagan where the King shall have the same and whether by the grant of Wreck the same passes and where a Subject may prescribe VII Of Ships Wreckt and no Creature in them yet no Wreck and of Ships forsaken whether in Law accounted lost or wreckt or neither VIII Of the Sheriffs duty as in relation to Goods wreckt and of Owners their time of claiming their property IX Wreckt Goods not to pay Custome X. Of Wreck in the Isle of Wight not in the Admiral without special words IN matters of Wreck there is as it were a Contract between them which have lost their Goods by such misfortune and them upon whose Lands the Goods and Merchandize are driven that the same be restored to them or those that claym under them And therefore by the Civil Law it is precisely forbid that no man shall meddle with such Goods as are Wreck'd and such as are proved to have stolne any thing thereout are holden for Robbers for that such Goods being cast on Land and recovered out of the Sea remains still his who was the owner thereof and discend upon his Successor neither Escheat to the King
their proof by their marks or Cockets by the Book of Customes or by the Testimony of honest men and if the Wreck belongs to the King the party may sue out a Commission to hear and determine and that by the Oaths of twelve men Or else he may bring his Action at Law and make out his proof by Verdict but such Action must be brought within the year and day Note Flotsam Jetsam and Lagan are Goods on or in the Sea and belong to the King who by Charter hath granted them to the Lord Admiral IX If Goods are wreckt on the shoare and the Lord having power takes them he shall not pay Custome The Admirals of England ut magnus Admirallus Angliae Hiberniae Walliae ac Dominiorum Insularum earundem Villae Calisiae Merchiarum ejusdem nec non Gasconiae Aquitaniae classium marium dictorum regnorum Angliae praefectus generalis c. which are the words of their Patents used at this day do claym all Wrecks arising from any of those places by vertue of their Grants X. King Edward the Second in the first year of his Reign by his Charter granted the Castle of Carisbrook with all the Lands and Tenements in the Isle of Wight formerly belonging to Isabella Fortibus Countess of Albemarle to his great Favourite Peter de Gaveston and Margaret his Wife and the heirs of their two bodies begotten together with sundry other Castles and Lands and commanded Nicholas de Bosco to put him into actual possession and likewise commanded Robert de Sanson Keeper of the Forrest of Parkhurst in that Isle to be intendent to them for the Farm he had granted him for life for the Custody thereof which being after soon reseised into the Kings hands he granted this Castle with all its Services and all his Lands in that Isle to Edward his Son and his Heirs Kings of England and afterwards for the ascertaining what did of right belong to the same Castle an Inquisition went out by which it was found inter alia qd wrecknÌ„ maris Pertinens ad dictum Castrum valet ê‘ annÌ„ 4 S So that by the general Patent of the Admiral will not pass the Wreck of this Isle without special words granted in the Patent Note If the Wreck happened or was occasioned by reason of any fault or negligence in the Master or Marriners the Master must make good the loss but if the same was occasioned by the act of God to avoid an Enemy or Pyrat and the like there he shall be excused CHAP. VI. Of Averidges and Contributions I. Of Goods and Merchandize when subject to be cast over-board II. Of the Account rendred of such ejected Goods and by whom III. Of the Antient Lawes of England as in reference to such Ejectments IV. What Goods must come into the Averidge and what are exempt V. The Master discharged by such acts by the Common Law VI. The Ships Geare or Apparel whether within the Averidge VII The residue of the Goods where tacitly obliged to answer the Averidge VIII Of Goods remaining a shipboard spoyl'd by reason of the ejecting of others where subject to the Averidge IX Where Ship and Lading are both made liable to the Averidge X. Of misfortunes not subject to an Averidge XI Where the remainder of the Goods are exempted from the Averidge and the damage of the ejected Goods falls on the Master XII Damage to the Ship where the Lading contributes and the Standard rate in Contributions XIII The Master becomes a Captive for the redemption of Ship and Lading where lyable to the Averidge and where discharged XIV What Goods are subject to the Averidge XV. Contribution for Pylotage and where the remaining Goods not subject to Averidge XVI Rules general for settling the Averidge I. SHips being Freighted and at Sea are often subject to storms in which by the Ancient Lawes and Customes of the Sea in Extream necessity the Goods Wares Guns or whatsoever else shall be thought fit may in such Extremity be flung over-board but then the Master ought to consult with his Marriners who if they consent not and yet the storm and danger continues the Master may command notwithstanding the casting overboard what he shall judge most fitting for the common safety of the rest If there be a super Cargoe a request ought to be made to him to begin first but if he refuses the Marriners may proceed II. If the Ship so fortunes as to out-weather the Storm and in safety arrives at her Port of discharge the Master and the most of his Crew must swear that the Goods were cast over for no other cause but purely for the Safety of the Ship and Lading The custome of clearing of that Point varies according to the several Countries or places they arrive at III. King William the Conquerour and Henry the First made and ratified this Law concerning Goods cast over-board by Marriners in a Storm in imitation of the Ancient Rhodian Law de jact ' Si ego jecero res tuas de Navi ob metum mortis de hoc non potes me implacitare nam licet alteri damnum inferre ob metum mortis quando periculum evadere non potest Et si de hoc me mesces qd ob metum mortis nil fecisse de comespriorai Et ea quae in navi restant dividantur in communi secundum catalla et si quis fecerit Catalla extra navim quando necessitas non exigerit ea restituat IV. The Ship arriving in safety the remainder must come into the Averidge not onely those Goods which pay Freight but all those that have obtained safety and preservation by such ejection even Money Jewels and Clothes and such like are not exempted But those things which are born upon a mans body Victuals and the like put a Shipboard to be spent are totally excluded from the Contribution The Master ought to be careful that onely those things of the least value and greatest weight be flung over-board V. As this Law does take care that this common Calamity should be born by all the parties interessed by a general Contribution so the Common Law takes notice of the misfortune and makes provision to Indempnifie the Master and therefore if the party Owner of such ejected Goods shall bring an Action against the Master or Owners of the Vessel the Defendant may plead the special matter and the same shall barr the Plaintiff VI. But if the Ships Gear or Apparel be lost by Storm the same is not within the Averidge but is accounted like unto a Workman breaking or spoyling his Tools So for Goods secretly brought into the Ship against the Master or Pursers knowledg no Contribution is to be made except in the avoiding of a danger as the flinging the Most overboard or the slipping the Tow-Anchor or Boat This Order is observed generally in the rating
such a Stock or Portion may be purchas'd that is the advantage or benefit arising by the improvement of the same As for Instance The East-India Company hath a Stock lodged in their hands by divers persons which they in the most prudent'st manner as they see fit imploy to those places as they judge most proper if a return is made the advantage of that is distributed â—…o each person that is any way entitled to that Stock which advantage is called a Divident and perhaps may afford some years 20 or 30 per Cent. But on the other hand if that that proportion of the Stock which goes out happens to miscarry the abatement is proportionable and so the Stock may be lessened unless that they will stay the Dividents to keep the Stock the which they may do For it is a Trust reposed of so many mens Moneys in their hands to yield them such advantage as they shall upon a just account set out So that if a man hath a 1000 l. Stock he cannot take the same out of the Great Stock whereby to lessen the same but he may transfer that usu-fruite by that Customary way which they have to any other person for a valuable consideration infinitum Such a Stock of 100 l. in the East-India Company in time of Warr might have been purchas'd for 80 l. Nett but now in time of Peace scarce got under 170 or 180 l. the Dividents running high CHAP. XII Of Impositions called Great Customes Petty Customes and Subsidies I. Impositions whether they may be commanded without the Three Estates and of Magna Charta touching the same II. Of Impositions made voluntary by consent of Merchants and of the adnull of the same III. Of the Confirmation of the Great Charter for free Traffique and of the Settlement now made on his Majesty of the same IV. Of the Immunities formerly of the Hansiatique Towns here in England and when determined V. Of the Antiquity of Customers or Publicans as well in former Ages as at this present time in most Nations VI. Of the Imposition called Magna Custuma VII Of that which is called Parva Custuma payable by strangers and the Act called commonly Carta Mercatoria VIII Of Subsidy and of what and the Rates how set IX Of Subsidy by Strangers on wines X. Of Goods not rated how to pay XI Of the Subsidy-Duty for Cloaths I. THat Impositions neither in the time of Warr or other the greatest necessity or occasion that may be much less in the time of Peace neither upon Forraign nor Inland Commodities of what nature soever be they never so superfluous or unnecessary neither upon Merchants Strangers nor Denizens may be laid by the King 's absolute Power without Assent of Parliament be it never so short a time By the Statute of Magna Charta Cap. 30. the words are All Merchants if they were not openly prohibited before shall have their safe and sure Conducts to enter and depart to go and tarry in the Realm as well by Land as by Water to buy and sell without any Evil Tolls by the Old and Rightful Customes except in the time of Warr and if they be of the Land making Warr against Us and be found in Our Realm at the beginning of the Warr they shall be attached without harm of Body or Goods untill it be known to Us or Our Justices how our Merchants be intreated there in the Land making Warr against Us. The Statute of which this is a branch is the most ancient'st Statute Law we have won and sealed with the Blood of our Ancestors and so reverenced in former times that it hath been 29 times solemnly confirmed in Parliament II. Impositions were in some sort done Consensu Mercatorium by Edward the First and Edward the Third And again in Henry the Eighth of which the House of Burgundy complained as against the Treaty of Entercourse King Henry the Third finding that such a Modus of Imposition tended to the destruction of Trade and apparent overthrow of Commerce and was against the Great Charter made Proclamation Anno 16. in all Ports of England That all Merchants might come faciendo rectas debitas consuetudines nec sibi timeant de malis tollis for that such Impositions had no better name then Maletolts The like was declared and done by Edward the First in the 25th year of his Reign and Edward the Second in the 11th and 12th years of his Reign III. In 2 Ed. 3. the Great Charter for Free Traffique was Confirmed and about some 3. years after there were Commissions granted for the raising of a new kind of Tallage but the people complained whereupon the Commissions were repealed and he promised never to assess any but as in the time of his Ancestors But this Prerogative Power of Imposing inward and outward upon Commodities over and above the ancient Custome of Subsidy without a free consent in Parliament is now ceast and settled And that Question which for many Ages had been handled by the most Learned'st of their times in the asserting and in the denying will never more be remembred Which being managed for some time was afterward farmed out The like having been done by former Kings as did Edward the Third with the New and Old Customes of London for 1000 Marks monthly to be paid unto the Wardrope Richard the Second Anno 20. Farmed out the Subsidy of Cloth in divers Counties So Edward the 4th Henry the 8th Queen Elizabeth and King James the same having been used in former Ages even in the best govern'd State Rome which let out Portions and Decim's to the Publicans IV. The Old Hanse Towng viz. Lubeck Collen Brunswick Dantzick and the rest had extraordinary Immunities granted unto them by our Third Henry for their great assistance and furnishing him in his Warrs and Naval Expeditions with so many Ships and as they pretended the King was not onely to pay them for the Service of their Ships but for the Vessels themselves in case they miscarried The King having concluded a Peace and they being on their return home for Germany the most considerable part of their Fleet miscarried by Storm and stress of weather for which according to Covenant they demanded reparation The good King in lieu of that which he wanted Money granted them divers Immunities and amongst others they were to pay but 1. per Cent. Custome which continued till Queen Mary's time and by the Advice of King Philip she enhanced the 1. to 20 per Cent The Hans not only complained but clamoured aloud for breach of their Ancient Priviledges confirmed unto them by long Prescription from 13 successive Kings of England and the which they pretended to have purchased with their Money King Philip undertook to accommodate the business but Queen Mary dying and he retiring nothing was effected Complaints being afterwards made to Queen Elizabeth she answer'd That as she would not innovate any thing so she
thereof and of the Customers Comptrollers Searchers and other Deputies of and within the said Ports of Sandwich and Ipswich and the several Creeks Harbours and Havens to them or either of them respectively belonging within the Counties of Kent or Essex X. And in regard that when Ships did come up to the Port of London there used to be very great Frauds committed by a promiscuous kind of shipping and landing of Goods and Merchandizes at several blind or unknown Wharfes and Keyes by reason of which his Majesty was often defeated of his Customes it was provided that a Commission might issue forth out of the Exchequer to ascertain all such Wharfes Keyes or other places as his Majesty by virtue of such Commission should appoint in pursuance of which his Majesty hath been pleased to allow to be lawful Keyes Wharâ—…s and other places for the lading or landing of Goods Brewers Key Chesters Key Wooll Dock Custome-House Key Porters Key Bear Key Sabbs Dock Wiggons Key Youngs Key Ralphs Key Dice Key Smart Key Somers Key Lyon Key Butolph Wharfe Hâ—…mons Key Gaunts Key Cocks Key Fresh Wharfe Billingsgate To be a common open place for the landing or bringing in of Fish Salt Victuals or Fuel of all sorts and all Native Materials for Building and for Fruit all manner of Grocery excepted and for carrying out of the same and for no other Wares or Merchandize Bridge-House in Southwark May be allowed a place convenient for landing of any kind of Corn bought or provided for Provision or Victualling of the City of London and not upon any private or particular persons account and for no other Goods or Merchandize XI It may be lawful for any person to ship or lade into any Ship or Vessel on the River of Thames bound over Seas Horses Coals Beer Ordinary Stones for Building Fish taken by any of his Majesties Subjects Corn or Grain the Duties being paid and Cocquets and othar lawful Warrant duly passed for the same So likewise Deal Boards Balks and all sorts of Masts and Great Timber may be unshipt and laid on Land at any place between Lyme-house and Westminster the Owner first paying or compounding for the Customes and declaring at what place they will land them before he unships them and upon Licence had and in the presence of an Officer they may unlade them otherwise they encur a forfeiture CHAP. XV. Provisions and Allowances made notwithstanding the several Clauses in the Acts for the Customes I. Custome to be paid for no more then is landed and when Bulk shall be broken II. Of Goods Imported and Exported what of the Customes shall be repaid back and by whom and of the things requisite in the same III. Of Agreement or Contracts made or to be made for the importing and exporting by way of Composition ratified IV. What Allowances to be made to the Exporters of Wines V. Of Exporting of Spanish Wooll where the same may be done VI. Of Currants Exported what Allowances shall be made and to whom as well to Denizens as Forragnâ—…s VII Goods imported not finding Market after a year Wine Exported discharged of Custome VIII What Allowances are to be made for Leakage IX What shall be accounted Leakage X. Wines proving unmerchantable what allowances to be made XI Tobaccoes receiving detriment or damage in the Importation what allowances to be made XII Strangers paying double Subsidy where they shall pay double Custome XIII Of Times and places lawful to unlade and Officers Duties then attendant to be present XIV York New-Castle and Hull men where Custome-free and for what XV. Exceter and other Western men what Free Subsidies shall be allowed in XVI Woollen where new or Old what allowances shall be made in Custome or Subsidy XVII Allowances of 5. in the Hundred for all other Goods XVIII The Customers and other Officers Duties in reference to attend their several Duties in the Customes XIX Of Officers their Duties and the punishments where made on complaint XX. The several Duties of London how preserved XXI The like for other Cities for those Duties granted or taken for publique good uses XXII Where Ships may be visited and the Officers duty relating to the same XXXIII Timber to be rated and in what manner must pay XXIV Prevention in Extortion of Customers and Officers and on what pains and penalties XXV Where Fees for Cocquets and Certificates shall be paid altogether and where he shall detain his own Cocquet till the Vessel has broke ground XXVI Where the Officers and Customers shall allow and make good to the Merchants the Algiere Duty and all other allowances and no other Imposition or Duty required by the Book of Rates shall be required or paid XXVII If Goods shall happen to be taken by Enemies or Pyrats or wreckt and what allowances shall be paid XXVIII Ships of Warr and other priviledged Vessels subject to search XXIX Of Allowances to be made and of shipping out lesser quantities then is contained in the Certificate what operation the same hath 1. EVery Merchant shall have free liberty to break Bulk in any Port allowed by Law and to pay Custome and Subsidy for no more then he shall enter and land Provided that the Master or Purser of every such Ship shall first make declaration upon Oath before any two Principal Officers of the Port of the true contents of his Ships lading and shall likewise after declare upon his Oath before the Customer Collector Comptroler Surveyor or any two of them at the next Port of this Kingdome where his Ship shall arrive the Quantity and Quality of the Goods landed at the other Port where Bulk was first broken and to whom they did belong A Merchant brought 80 Tun of Bay Salt by Sea to a Port in England and out of that ship sold 20 Tun and discharged the same into another Ship then riding at the same Port but the 20 Tun were never actually put on shoare and for the rest being 60 Tun the Master agreed for the Customes and put them on land and although that that 20 Tun was alwayes water-born and never were put on shoare yet adjudged they ought to pay the reason was for the discharging them out of the Ship amounts as much as to the laying them on Land the same being done in Port for otherwise the King would meerly be defrauded But if a Ship is carried in by storm and to preserve the Vessel part is landed before the Duty paid yet this will not subject the same to a forfeiture II. All Forraign Goods and Merchandizes except Wines Currants and wrought Silks first Imported shall be again Exported by any Merchant English within 12 months and such Merchant and Merchants as shall Export any such Forraign Goods or Merchandizes except as before is excepted shall have allowance and be repaid by the Officer which received the same the one moyety of the Subsidy which was paid at the first importation of such
yet it does not wholly remove the disease or non-ability as to the points of descent or hereditary transmission and resembles a Person in case of an Attainder and therefore if he purchases Lands and dyes without issue the Lord by Escheat shall have the Lands And therefore in lineal descents if there be a Grand-father natural born Subject Father an Alien Son natural Subject the Father is made Denizon he shall not inherit the Grand-father and if the Father dyes in the life of the Grand-father the Grand-child though born after the Denization shall not inherit the Grand-father for the Denization does not remove neither the personal nor the consequential impediment or incapacity of the Father So likewise in Collateral descents As for instance the Father a Natural born Subject has issue two Sons Aliens who are both made Denizens and one dyes the other shall not inherit him XII The like Law in Dower a Man seized of Lands in Fee and takes an Alien to Wife and then dyes the Wife shall not be endowed But if the King takes an Alien to Wife and dyes his Widdow Queen shall be endowed by the Law of the Crown Edmund Brother of King Edward the I. married the Queen of Navarre and dyed and it was resolved by all the Judges that she should be endowed of the third part of all the Lands whereof her Husband was seized in Fee A Jew born in England takes to Wife a Jew born also in England the Husband is converted to the Christian Faith purchaseth Lands and enfeoffeth another and dyeth the Wife brought a Writ of Dower and was barred of her Dower Quia vero contra justitiam est quod ipsa dotem petat vel habeat de temento quod fuit viri sui ex quo in conversione sua noluit cum eo adhaerere cum eo convert If an Alien be a Disseisor and obtains Letters of Denization and then the Disseisor release unto him the King shall not have the Land for the release hath altered the Estate and it is as it were a new purchase otherwise it is as if the Alien had been the feo ffee of the Deseissee And though Aliens are enabled by Charter of Denization to a transmission Hereditary to their posterity of Lands yet a Denizon is not capable of Honour nor a transmission of the same without Naturalization by Parliament for by the Charter of Denization he is made quasi seu tanquam ligens but to be a Member of Parliament he must be ligens revera non quasi for by his becoming a Noble-man he claims the place of Judicature in Parliament the which he cannot till naturalized by Act of Parliament and then he may claim as eligible to the same or any other CHAP. IV. Of Aliens and Crials per meditatem where allowed and where not I. Of the manner of Aliens obtaining Trials per medietatem at the Common-Law and of the Antiquity of the same II. Of the making the same a Law universal within this Realm as to some Persons afterwards general as to all III. Of the Writ and some Observations on the summons of such an Inquest IV. Of the opportunity lost or gained by praying this immunity V. Of the awarding of Tales upon request on such Enquiries VI. Where this immunity does not extend in Aliens and where it does in matters Civil and Criminal VII Of the validity of a witness Alien and of an Infidel VIII The tittle of a Renegadoe IX Of the benefit of the Kings Pardon whether it extends to an Alien whose abode is here but happens to be absent at the time of the promulging I. TRiatio Bilinguis or per medietatem linguae by the Common-Law was wont to be obtained by Grant of the King made to any Company of Strangers as to the Society of Lumbards or Almaignes or to any other Corporation or Company when any of them were impleaded the moyety of the Enquest should be of their own Tongue this Trial per medietatem in England is of great Antiquity for in some cases Trials per medietatem was before the Conquest Viri duodeni Jure Consulti sex Walliae totidem Anglis Wallis jus dicanto and as the Commentator observes it was called duodecem Virale Judicium II. This immunity afterwards being found commodious to us Islanders became universal for by the Statute of 27. E. 3. cap. 8. It was enacted that in Pleas before the Major of the Staple if both Parties were Strangers the Trial should be by Strangers but if one Party was a Stranger and the other a Denizon then the Trial should be per medietatem Linguae But this Statute extended but to a narrow compass viz. Only where both Parties were Merchants or Ministers of the Staple and Pleas before the Major of the Staple But afterwards in the 28th Year of the same Kings Reign it was enacted That all manner of Enquests which was to be taken or made amongst Aliens and Denizons be they Merchants or others as well before the Maior of the Staple as before any other Justices or Ministers Although the King be party the one half of the Enquest or proof shall be Denizens the other half Aliens if so many Aliens and Forreigners be in the Town or Place where such Enquest or proof is to be taken that be not Parties nor with the Parties in Contract in Plea or other quarrel whereof such Enquest or proof ought to be taken and if there be not so many Aliens then shall there be put in such Enquests or proofs as many Aliens as shall be found in the same Town or Places which be not thereto Parties as aforesaid is said and the remnant of Denizens which be good men and not suspicious to the one Party or other By which Statute the same Custom or immunity was made a Law universal although it be in the Case of the King for the Alien shall have his Trial per medietatem It matters not whether the moyety of Aliens be of the same Country as the Alien party to the action is for he may be a Dutch-man and they Spaniards French Walloons c. because the Statute speaks generally of Aliens III. The Form of the Venire facias in this case is De Nicenet c. quorum una medietas fit de Indigenis altera medietas fit de aliegenis natis c. And the Sheriff ought to return twelve Aliens and twelve Denizâ—…ns one by the other with Addition which of them are Aliens and so they are to be sworn but if this Order be not observed it is holpen as a misreturn It has been conceived of some that it is not proper to call it a Trial per medietatem Linguae because any Alien of any Tongue may serve but that surely is no Objection for People are distinguished by their Language and medietas Linguae is as much as to say half English and half of another
abuses are up on such an account legally tollerated In omnibus rebus vetustas ipsa plurimum habet dignitatis ita ut Massalienses quorum praestantissima creditur fuâ—…ssa Respublica laudentur to nomine quod gladio ad puniendos sontes usi sint eodem a condita Urbe quo indicarent in minimis quoque rebus antiquae consuetudinis momenta servanda Proxime enim ad demum accidit Antiquitas aeternitatis quadam imagine Grot. de Antiq. Rep. Batav in Praefat. Ceteris mortalibus in eo stare consilia quid sibi conducere putent Principium diversam esse sortem quibus praecipua rerum ad summam dirigenda Tacitus Annal. l. 4. †Vide the Earl of Shastsbury's Speech to the Parliament 1672. Si fama tua videtur necessaria rectam muneris tui administrationem non potest condonare Lessius de Inst. l. 2. c. 11. dub 24. §. 26. Selden Mare Clausum l. 2. cap. 24. Fitzherberts protection tit 46. Seld. ibidem c. 23. Co. 4. Iustit fo 142. Vide part of the Record in fo 54. And the case 29 Eliz. in B. R. Sir John Constables Leonard 3. part 72 the reason of the opinion there is mistaken for the right unto the Sea ariseth not from the possession of the shores for the Sea and Land make distinct Territories and by the Laws of England the Land is called the Realm but the Sea the Dominion and as the loss of one Province doth not infer that the Prince must resign up the rest so the loss of the Land Territory doth not by concomitancy argue the loss of the adjacent Seas I is no more necessary that every Sea Town should command 100 miles at Sea then that each City should command 100 miles by Land Julius Paucius de Dom. maris Adriatici Anno Domini 1600. Anno Domini 1609. Anno Domini 1636. Will. Fulbecks Pandects of the Law of Nations c. 4. The King against Sir John Byron Bridgman fo 23 24 25. Vide postea in Chap. of Customs June 30. anno 1598. Selden lib. 1. cap. 11. Alber. Gentil Hisp. Advocat l. 1. c. 14. vide Mr. Secretary Cookes Letter to Sir William Boswell April 16 1635. * The fight of the Dutch with the Spanish Fleet in the 1639. Downes Scilicet hoc factum Hollan dorum est contra justitiam omnem pro certo contra reverentiam qua partibus territoriis debitur alienis Alâ—… Gent. Hisp. Advocat l. 1. 3. 14. Anno Domini 1552. JunÌ„e 2 and 3. About the 8 of â—…g 1653 †Offered to Queen Eliz. Cette-cy entre autres merite bien une consideration speciale Que la conjunctiondesdits Pays de Hollande Zelande Frize des Villes de l'Escluz Ostende in Flandres avec les Royaumes de vostre Majesté emporte soit l'Empire de la Grande Mer Oceane par consequent une asseurance Felicité perpetuelle pour les Subjects de vostre Serenissime Majesté John Stow Supplement to Holling shed An. Dom. 1585. Vide Sir Walter Raleigh lib. 5. cap. 2. §. 2 3. Enna aut malo aut necessario facinere retenta Livy lib. 24. * F. de Navibus non excus C. l. 11 tit 3. and Pekius on the same Law Quidni enim inquit Cicero quando scire detremento sue potest alteri communiâ—…t in iis quâ—… sunt accipienti utilia danta non molesta 1. de Offic. 1. * De expeditione Cyri. 10 Ed. m. 16. 12. * 23 Ed. 1. Rott 77. in the Exchequer 12 E. 3. in the Black-Book of the Admiralty p. 26 and 27. 6 Joh. m. 11. 9. Joh. m. 3. 24. Ed. 2. m. 17. 11 R. 2. m. 13. Rot. Franc. De Offic. Admiral Angliae per Roughton Artic. 10. The Black-Book of the Admiralty fo 28 29 157 158. 15. R. 2. c. 3. Cro. Arg. of Hampdens C. called the Ship money C. fo 79 to 100. Spelmanni Cnocil Tom. fo 520 521. Spelmanni fo 528 expeditio Navalis Rot. Scotiae 10 E. 3. m. 2. to 17. and then to 34. intus dors to 28. 1 Eliz. cap. 13. Vide Stat 16. 17 Car. I. c. 15. 2 3 P. M. C. 16. Vide Sir Henry Spelmans Gloss. in tit Admirâ—… Lambert Archeion tit Admiral fo 42. Exodus 21. 6. Inst. de Jure person §. servi autem Gell. l. 2. C. 7. Tacitus Co. 〈◊〉 Inflit. fo 358. 2 E. 1. Memb. 18. Rott Pat. 1 E. 1. m. 17. Ro. sin 31 E. 〈◊〉 num 44. Ro. pat 17 H 6. Ro. Cla. indors Vide the Case of Bates in Lanes Reports fo 4. Co. 6. part Case of Souldier Vide the 1. Institutes fo 71. And the Stat. of which provides punishment for those Watermen which shall hide themselves does evidence what the common Law was as to the right of pressing which certainly would never punish those whom they could not press †2 Aprilis 49 E. 3. in the Black-Book of the Admiralty 32 33 34 Art and fo 69. Art 10. The Black-Book of the Admir f. 17. Lamb. inter Leg. Edovardi f. 139. 13 Car. 2. cap. 9. †Non solis ducibâ—…s aliisque pâ—…tentibus innasci solet atque immorari bene agendi propositum sed cuique volenti licet honestum est ejus qua vivit Reâ—…publicae mali commoreri publicas utilitates pro suis viribus promoveri Vide Grotius l. 2. c. 20. †That is as to entitle him to Clergy and so it was ruled by all the Judges in B. R. M. 23 Car. 2. in the Case of one found specially at Surrey Assizes before Mr. Justice Twisden who slew the adulteror in the very act Vide August Civit. Dei citatum C quicunque causa 23 qu. 8. An. 25. Eliz. Co. Litt. f. 74. Code Justin. tit quando liceat unicuique It was in force in England till the beginning of the Reign of Edw. 3ds time Co. Inst 128. B. 13 H. 4. fo 4 5. 37 H. 6. fo 3. Jugurtha taken by his Father in Law Bocchus and delivered to the Romans Charles the 7th of France at a personal Treaty with Duke of Orleans 〈◊〉 slew the Duke though a Soveraign Prince Meyer l. 15. Phil. Comines lib. 4. c. 9 10. * As that between Edward the 4th and Lewis the 11th in the Territories of the Duke of Burgundy Vide Aemilius Paulus in History of France and Ferron his supply of the same of the Life of the Duke of Orleans afterwards Lewis 12th upon the failer of issue male of Charles the 8th Julius Ferretus de legatis Principium de 〈◊〉 side 〈◊〉 †The Leagues between the Crown of France and Spain are commonly between Kings and Kings Realm and Realm and Man and Man of their subjects and hath in time past been lookâ—… upon to be the firmest of Alliances Phil. Comines lib. 2. cap. 8. 9 E. 4. 2. a. The League then made with the Scots and likewise between Ed. 4th and the Duke of Burgundy Phil. Comin lib. 3. c. 6. * Rot. Pat. 4.
the which this Isle by the Influence of his Royal Majestic hath been no small sharer in Hence it is that Trade and Commerce are now become the onely Object and Care of all Princes and Potentates its Dominion not being acquired by the rufull face of Warr whose footsteps leave behind them the deep impression of misery devastation and poverty they knowing the return of Commerce is Riches and Plenty of all things conducing to the benefit of humane life and fortifying their Countries with Reputation and Strength It was Trade that gave occasion to the bringing of those mighty Fleets to Sea as if God had left it to them to decide by force wherein no Age or Time can witness the like the Empire of the World Hence it was the advantages being found which arise by Commerce that Navigation got its birth into the World reducing the several Nations on the Earth by that means to be even as one Common Family and when in this Isle we were even in the state of Canibals it brought in a People that instructed us in Arts Policies and Manners and taught us actions no less virtuous then those themselves followed And although long and difficult it was before that Mighty People could be brought over to have thoughts of the advantages arising from Commerce and Navigation they onely propounding to themselves Blood Slaughter Conquest the Riches and Spoyls of Nations but when they entred into the Carthagenian Warr a quarrel with a People not worth the opposition of Tribune as they thought but finding that neither Tribune nor Pretors no nor the Flower of the Roman Army was able to withstand them or to prevent the Invasion of their Country and then in the very bowels of the same put it to the Question Rome or Carthage Mistress of the World they began to consider whence and from what causes those unknown Affricans should withstand the Conscript Fathers and power of Rome and should dare to dispute with those that had lead so many Captivated Kings in Triumph and brought so many Haughty Nations to Truckle under their Victorious Eagles at last they found it was Commerce and Navigation that gave power and force to that Mighty People Then it was that Rome began to know that Rome could not be Rome without a Naval force the which and to redeem their bleeding Honor they soon hastened and equipt ' great as their Competitors and afterwards Argentum being won Carthage became no more impregnable after which with Peace they plowed the Neighbouring Streights to Tinges Gades and the Heroulean Streights nor could any thing be too difficult afterwards till they arrived on the British shore where beholding her ample Bayes Harbours Rivers Shoares and Stations the Jewels and Ornaments of that Spott and having made a Conquest of the same they soon cultivated into our rude Natures the spirit of Commerce teaching instructing us in those polite ways that fortifie a Kingdom by Naval force as the Standard and undeniable marks of Empire and by ayding and teaching us in the driving on a continued and peaceable Tract of Commerce we have fathomed the unknown depth of the Indian Shoares uniting as it were extreams made the Poles to kiss each other teaching us thereby that it was not the vast Emensities of Earth that Created Empire but scituation accompanied with Industry Commerce and Navigation that would enable a People to give Lawes to the World In the pursuit of whose Virtues this Nation hath not been wanting and of following their great Directions in the enlarging our Fleets for they when they advanced their Eagles on the British Shoare found us not then without Ships of Force time having not been so envious to this Island as to eat out those Records wherein mention is made that the Britains accompanied the Cymbrians and Gaules in their Memorable Expedition to Greece long before the Incarnation of the Worlds Saviour and it was from that Center that the Mighty Caesar first drew his Line and took thoughts of plowing the Ocean to find out that Warlike People to face his victorious Legions when having Landed and finding a place adorned by Nature beyond any thing that could be called great taught us to maintain that superiority of Dominion that no Neighbouring Nation should frequent our peaceable Shoares and those Merchants that came assigned them places to drive their Commerce and Traffique jealous that any Neighbouring Rival should kiss his beloved Britannia but a Roman and for whom he fetch 't so long and tedious a march Thus in our Infancy teaching us both Defence and Commerce And when that mighty Empire began to decline and those remaining Romans began to moulter and mix among the Natives and to become as one People again then Sloth Luxury and Idleness the fore-runners of ruine invaded our Shoars by a fatal stupidity it suffered our floating Castles Balwarks of the Kingdom to rott in their pickled Brine and our Ports to be surveyed by forraign people which supine negligence soon subjected us a prey to our ambitious Neighbors who no sooner finished their Conquest and sheath'd their devouring Swords but each as if inspired by the very genius of the place Equipt out Fleets great as their Commander to secure what they had so dearly won of whom Story makes mention of the mighty Arthur no less famous in his Warlike Atchievements then in leading his Squadrons as far as Iceland bringing those Northern People to pay obeysance to his victorious Standard and acknowledge him as their Supream Lord even from the British to the Russian Tracts and by him left to the famous Edgar who no sooner found his undoubted Right but resolved to vindicate that Dominion which his Royal Predecessor had with so much glory acquired and with so great care had communicated and remitted down to his Successors No less a number then four hundred Sayl of Ships did that mighty Prince at once cover the Neighbouring Ocean making them the Port-cullis of this Isle and the adjacent Seas by which he vindicated his Dominions on the Waters and gave Lawes in the Chambers of his Empire Nor did his Successors Canutus whom Record makes mention that having laid that ancient Tribute called Danegeld for the guarding of the Seas and Soveraignty of them was emblematically exprest sitting on the shoar in his Royal Chair while the Sea was flowing speaking Cumeae ditionis es â—…t tetra in qua seneo est â—…c Egbert Althred Ethelfred forget the assertion of their great Predecessors Dominion and Soveraignty of the same under no lower a stile then Sâ—…pream Lords of Governours of the Dâ—…ean surrounding the Brittish Shoare never so much as contested by any Nation whatsoever unless by those that attempted the Conquest of the entire Empire in which that became subject to Fate as well as the other of the Land Nor did the succeeding Princes also of the Norman Race start or waive that mighty advantage in their
successive Claims and maintaining their Right to the adjacent Sea as appeared not long after by that Famous Accord made between Edward ths First and the French King Philip the Fair calling him to an account for Pyracies committed within the Brittish Seas the Submission of the Flemmings in open Parliament in the Second Edwards Reign and the Honour or Duty of the Flagg which the Politique King John had above Four hundred years since challenged by that Memorable Ordinance at Hasting there decreed to take place universally not barely as a Civility but as a Right to be paid cum debita reverentia and persons refusing to be assaulted and taken as Enemies the same not onely to be paid to whole Fleets bearing the Royal Standard but to those Ships of Priviledge that wear the Princes Ensigns or Colours of Service Nor was this barely a Decree written but nobly asserted by a Fleet of no less than 500 Sayl in a Voyage Royal of his wherein he sail'd for Ireland in his way commanding all Vessels which he met in the Eight circumfluent Seas to pay that Duty and Acknowledgment Nor was the Third Edward slow in following the steps of his wise Predecessors when he Equipp'd out a Fleet of no less than 700 though on another occasion with 200 of which he vanquished a Fleet of twice the number before Calais to the loss of 30000 French Nor did our victorious Conquerour of the Sepulchre the Great Richard the Second who in his return from the Holy Land want a Navy Royal to attend him home by the force of which he took and destroyed near 100 more Ships of the French And look we but into the mighty Actions of the succeeding Princes we shall find all that ever designed Empire but were Zealous in the encouragement of Navigation looking on that Axiom as undeniable Qui Mare tenet cum necesse esse rerum potiri and that without which the British Soveraignty is but an empty Title Nor ought alone the Praises of those great Monarchs whose mighty care had always been to preserve the Reputation of their Empire in their Maritime preparations to be remembred but also those of our Inhabitants who alwayes have been as Industrious to follow the encouragement of those Princes under whom they flourish't and who with no less Glory and timely application in Traffique did constantly follow the examples of those of Genoa Portugal Spaniards Castillians and Venetians whose Fame in matters of Commerce ought to be inrolled in letters of Gold since the Ages to come as well as present having been doubly obliged to their memory the third of which making use of a discontented Native of this Isle the Famous Columbus who prompted by that Genius that naturally follows a Native wise man discovered a New World in whose Expedition he fathomed unknown Paths and detected the Antillus Cuba and Jumaca c. and the Terra Firma of the American Shoare who taking his Conjectures from the spireing of certain Winds from the VVestern Points by strong impulse accompanied with that Philosophy he attained to concluded some Continent must needs be hid in those unknown Parts his Service being first offered to his Prince and refused he was soon after entertained purely on the faith of that Noble Princess Issabella of Spain who for 17000 Crowns for which she engaged her Jewels she received not long after as many Tuns of Treasure and to her Husband 's own use in Eight or Nine years time came above Fifteen hundred Thousand of Silver and Three hundred and sixty Tuns of Gold Thus Ingenuity encouraged though in one single Person hath occasioned Wonders and from a small Kingdom as Spain it hath since raised its head in a condition of bringing all those many Kingdomes and Vast Emensities of Earth which they possess under their protection putting them once on thoughts of no less than an Universal Monarchy We need onely mention Sebastian Chabott a Native of Bristol who discovered Florida and the Shoares of Virginia dedicated to that Virgin Princess Elizabeth Thorn Elliott Owen Gwyned Hawkins Cavendish Furbisher Davis Stadson Raleigh and the Incomparable Drake who was the first agreed Universally of any Mortal to whom God vouchsafed the stupendious Atchievement of Incompassing not this New World alone but New and Old together twice embraced by this Mighty Man who first making up to Nombre de Dios got sight with Tears of Joy of the Southern Seas the which in five years after he accomplished it passing through the Magellan Streights towards the other Indies and doubling the famous Promontory he circum-navigated the whole Earth Nor ought that truly worthy Captain Sir John Norborough be precluded from having place after the mighty Drake he having not long since passed and repassed the Magellan Streights by which that Worthy Person hath performed that Atchievement which was never yet done by any Mortal before To reckon up the particular Actions of John Oxenham a sharer in that mighty performance of Drake of his drawing his Vessel up to Land and covering the same with boughs passed the unknown paths of Land from Nombre de Dios to the South Sea and there building a Pinnace enters the Isle of Pearles and from the Spaniards takes a Treasure almost beyond credit of the indefatigable diligence of Willoughby Burroughs Chanceler Button Buffin Furbisher James Middleton Gilbert Cumberland who plowed up the North-East and North-West Cathaian and China passage of Jones and Smith whose Fortune and Courage was great in those Parts of Poole who found out the Whale Fishing of Captain Bennett the first discoverer of Cherry Island Gillian and of Pett and Jackman that passed the Vaigates Scythian Ices and the River of Ob as far as Nova Zembla nor of the Famous Davies who had penetrated to 86 degrees of latitude and almost set his foot on the Northern Pole Men whose Actions in the atchieving of discoveries and pointing out to places for an immense improvement in Navigation and Commerce ought to be inrolled in the Temple of Fame as Monuments to succeeding Ages of their Mighty and Laborious Travails and Industry The Consideration of all which gave some sparks of encouragement to the writing the ensuing Tract especially when reflecting that among all Nations there is a Common Law which governs the mighty thing of Navigation and Commerce I had some impulses more then ordinary to induce me to the same especially at a time when Navigation and Commerce were never from the erection by Divine instinct that Mighty Proto-Type the Ark to this present Age in greater esteem then now and by which we have found vast and great easements and discharges from those Royal and Just Rights and Dues which ever were and of Old justly due to those that Govern'd this Empire Therefore ought by all wayes and means to be fortified and encouraged be it by whatsoever Art Science or thing that does in the least point out towards the same Nor was it then