The Case between the King and Carew, concerning the Letters Patents for Reprisals (hereunto annexted) against the Hollanders; Briefly and faithfully stated, for satisfaction of all persons concerned.

GEorge Carew of Richmond, in the County of Surrey Esq; Administrator of the Goods and Chattels of Sir William Courten Knight deceased, with his Will annexed; having contested at the Hague and Amsterdam, after the Kings Restoration, for the space of fifteen Months, concerning the Spoils and Depredations, upon Sir William Courten's Ships and Factories: A Provisoe was made in the fifteenth Article of the Treaty concluded at LONDON, between the King and the States General, the 4th. of September 1662. that satisfaction and reparation should be made by the East-India Company of the Netherlands, for the two Ships named the Bona Esperanza and Henry Bona Adventura, with their Freights and Lading.

In pursuance of the said Treaty, Carew having Expended and Disbursed divers great Sums of Money, both in Holland and England without effect, he was prompted by several Ministers of State at Whitehall, to Address himself by Petition to the Commons in Parliament, in the year 1664. for Relief, who referred the same to the Committee of Grievances accordingly.

Sir Tho. Clifford, then Chairman of the said Committee, after Examination of all the Papers and Depositions concerning this Case, brought in by Sir Thomas Littleton, Reported that the Loss and Damages amounted to the Sum of One Hundred and Fifty Thousand pounds Sterling and upwards, hinting at the evil consequences thereof, to the Honour and Interest of the Nation, if those Damages were not satisfied and repaired unto the Families of Sir William Courten and Sir Paul Pindar, who had merited so much from the Crown and Kingdom.

Soon after a War insued, whereupon the Commons Voted to assist the King with their Lives and Fortunes, unto whom they granted several Millions of Money for the Prosecution thereof.

In the Month of May 1665. the Cause concerning the said Spoils and Depredations which had been debated in the Admiralty, in Council, and in Parliament, was reduced to a certainty, for satisfaction by Letters Patents for Reprisals under the Great Seal of England, wherein Sir Edmund Turnors Name is used in Trust, Carew having the Interest in Law on the behalf of himself and others, the Dutch Ambassador then Resident in England had notice of all the proceedings, as it is recited in the body of the said Patent, which passed through the greatest Offices of Trust in the Kingdom, upon mature Consideration.

The Warrant for passing the said Patent, issued out of the Lord Arlingtons Office, then Principal Secretary of State, containing two clauses for continuance of the Grant, until the Debt of 151612l. with Damages should be recovered, which was debated three Months, by the Lord Chancellor Hyde, before it passed the Great Seal, Sir William Turnor and Sir Robert Wiseman the Kings and Dukes Advocates general, being often consulted therein, affirmed, That it was consonant to the Laws of Nature and Nations, that the said Debt and Damages should be satisfied and repaired. A President thereof being shewn under the Great Seal, in the late Kings time, in the Case of Paulet, a Merchant, who had the like Letters of Reprisals against the Spaniards, to continue effectual in the Law, until the Debt and Damages should be Reprised, who upon a Peace made with Spain, had the remainder of his Debt unsatisfied.

In the year 1666. Carew and the Creditors claiming under him, procured several Duplicates and Exemplifications of the said Letters Patents, and put the same in execution, by deputations against the Hollanders, who Trading in divers Bottoms, under the colours of Sweeds, Hamburgers and other Neighboring Princes and States in Amity with England, the very charges of equipping out private men of War could not be gotten, the Ships brought in for Prizes▪ being reclaimed and restored, as by the Rigister of the Admiralty Court appears.

However Sir William Coventry then Secretary to his Royal Highness complaining, That those special Letters of Reprisal, obstructed the Lord High-Admirals profits of Tenths by Letters of Marque in time of War, & that the Kings Ships were deprived of Seamen: A Proclamation issued out the 10th. of August 1666. to suspend the Execution of the said Letters Patents, protempore. Notwithstanding his Royal Highness was gratified with a Months Tax for his Heroick Courage at Sea.

In the year 1667. a Peace was concluded at Breda, whereby all Letters of Reprisals were mentioned to be revoked, whereupon the said Carew and the Creditors remained passive, until the year 1671. when another War was proclaimed, the King having particularly owned this Cause, declaring, That he was obliged in Iustice and Honour to see that Debt and Damages, mentioned in the Letters Patents aforesaid, to be satisfied and repaired; the Lords of the Privy Council having also affirmed, That all past Treaties were absolutely cancelled, as if no such Treaties ever had been made.

Then the said Carew was dispatcht away with Orders of the Councel Table, Referrences and Instructions, with the Kings Letters to his Ambassadors and Plenipotentiaries, to insist upon plenary satisfaction and Reparation in any Treaty to be made with the States; The King expressing in his Leters under his Sign manuall his care to protect his Subjects in their just Rights, as well as to assist them in the recovery thereof.

In the Month of August 1672. It so hapned that Carew and his Servants were Imprisoned by the States of Holland as Spies, for seeking after Justice, and detained close Prisoners without access (and threatned with Death) during the War, which ended in a common Alliance, in the year 1674. upon the consideration of Eight hundred Thousand Patacoons (inter alia) to be paid to the King in four years, for Damages yet three parts thereof were assigned to the Prince of Orange, and the fourth part received for other services by Alderman Backwel, upon his Majesties account, but the Debt and Damages ascertained for the Spoils and Depredations aforesaid, was left in statu quo, to the remedy at Law prescribed.

In the year 1680. divers of the Creditors of Sir William Courten, Sir Paul Pindar and Sir Edward Littleton, having importuned the said Carew to put in execution the said Letters of Reprisals, since they had no satisfaction either out of the Prizes taken by the Kings Ships, during the War, nor out of the said Patacoons, or any other waies or means whatsoever, notwithstanding their several Addresses to the King, the States, and the Prince of Orange, for that purpose.

Then Carew being advised that several Writs at Common Law, in case of a Spoil at Sea, lay against the Subjects of Forraign Princes and their Goods found in England, until the Statute of Edw. the third, provided that the only Remedy should be by the Law of Marque or Reprisals, without Fraud or Deceit, for all Damages upon Spoils, which being ascertained and reduced into a Grant, under the Great Seal of England, became such an Interest vested in the Grantees, coupled with an Authority that could not be taken away without satisfaction made to the Parties interessed and injured.

And further advised, That Soveraign Princes in all parts of the World, having once granted such Letters of Reprisals for Spoils and Wrongs done to their Subjects, hold themselves obliged to see right done by one means or other, being trusted with the power of Peace and War: A Prerogative subservient to the immutable Laws of Nature, and right Reason.

Then Carew Equipped out a small Ship called the George Bona Adventura, under the command of Captain Compton Gwyther, who took a Fly-Boat laden with Wine and Chesnuts near the Isle of Wight, called the Love of Rotterdam, to awaken those that ought to make reparations, whereupon the Dutch Ambassador moved for Proclamations, Supersedeas and scire facias, but nothing was offered for satisfaction or repairation upon any account whatsoever, for the Debt of 151612 l. although no part of that principal money, or of ten thousand pounds more expended and disbursed by the said George Carew, in the prosecution of his right, was recovered or received, as by his Affidavit filed in Chancery, hereunto annexed also appears.

Then Compton Gwyther and his Mariners, being Apprehended were tryed for Pyracy and Fellony, by a special Commission of Oyer and Terminer, grounded upon the Statute of Henry the VIII. at the New Hall, in the Court of Marshalsea in Southwark, on the 18th. of Febr. 1680. where the Jury acquitted them as not acting with a Fellonious intent, under the colour of that Commission for Reprisals, Yet the Ship was restored by the King to the Dutch.

In the Month following Sir Robert Sawyer, the Attorney General, brought a scire facias in the Pettibag against Sir Edmund Turner, and George Carew, to shew cause Why the LETTERS PATENTS should not be revoked, repeald, or made null and void; Whereupon Slings by Bethel and Henry Cornish Esquires, the Sheriffs, gave personal notice, and returned the said VVrit in Easter Term 1681. Then Turnor and Carew Appeared and Pleaded the same Term, which lay Dormant until Easter-Term, 1682. when the Attorney General put in a Demurrer: whereunto the Defendants rejoyned, and the Record being Read in Court (consisting of five large Skins of Parchment) on Saturday the 20 of May, the Lord High Chancellor of England, appointed Tuesday following to Argue the same; whereupon the Defendants Councel moved the Court for longer time, in regard they could not have Copies of the Record VVritten out so soon, yet it was denied; and his Lordship gave Judgment for the King, without Arguing the same by the Defendants Councel, who will in due time be ready to make appear not only divers Errors in the said Scire facias. But that Judgment ought not by the Laws of the Land, to be given on the said scire facias: his Lordships Judgment being reversable by Writ of Error or Appeal.

But in the Interval, between the scire facias brought and the Demurrer put in, Carew being pressed to enter other Ships and Pinnaces (according to his Covenants) to Reprise some part of the Debt and Dammages, many Widdows and Orphants Creditors of Courten and Pindar, being concerned therein; The Ship named the America, with 4 others, were offer'd, at their instance, to be entred in the Admiralty, and Cap. W. Hawley to be Commander of the America. But Sir R. Lloyd & Mr. Bedford refusing to take any other Notice of the Paper, than only Reading and returning the same, it was Registred in the Chancery, and a Deputation given to the said Cap. Hawley upon an Authentick Copy of the said Letters Patents to put the same in Execution; who in Prosecution thereof, took a Fly-boat laden with Wheat and Rye, called the Young Schonemaker of Dort, under Sayl about three Leagues from the Texell, and then brought the same into Woodbridge Harbour, and sent the Bills of Lading with all the Papers on Board unto Mr. Thomas Broadrick Procter in the Admiralty, in order to a Sentence of Condemnation. Then a Warrant dated 29th of April 1682. issued from the Lords Commissioners of the Admiralty, directed to Mr. William Ioynes the Marshal, who restored the Prize to the Dutch, and apprehended Captain Hawley and his Men for Pyracy and Fellony, and committed them to the Prison of the Marshalsea, in order to their Tryal on Saturday the 10th of Iune 1682.

Mr: Carew's Affidavit Filed in Chancery: Dom. Rex vers. Carew & al' super Brev. scire facias in suprem' Curia Cancellar.

GEorge Carew of Richmond in the County of Surrey Esq one of the Defendants in this Cause, maketh Oath That he this Deponent being advised by his Councel Learned in the Laws, that a special Proviso was made in the fifteenth Article of the Treaty Concluded at London, between the King and the States General, Dated the 4th of September 1662. For Satisfaction and Repairation of the Spoyles and Depredations of the Two Ships, called, The Bona Esperanza, and Henry Bona Adventura, and the Letters Patents for Reprisals in pursuance thereof Recited, in the PLEA to the said scire facias he this Deponent valued himself, as vested with such a right and property in the Debt and Damages, Ascertained by the Grant in the said Letters Patents, That he this Deponent disbursed and expended the sum of Ten Thousand Pounds and Upwards in the Prosecution of his Right; Three Thousand and Five Hundred Pounds of the said Money being furnished by Thomas Foley Esq upon the purchase of Aunton Farm in Worcester-shire, from this Deponent, Two Thousand Pounds more thereof lent to this Deponent by Tho. Colman Esq upon the Mortgage of Eight Houses in the City of London, and Two Thousand Five Hundred Pounds by Sir Iames Butler, upon a Conditional Surrender of a Coppy-hold Estate in Richmond; Whereupon there is a Decree in this Court to foreclose this Deponant from the Equity of Redemption if the Principal Money Interest and Charges be not paid by Christmas next, most part of the said 8000 l. being paid to Sir William Powell, Sir Iohn Ayton and others, claiming their Debts under this Deponants Administration, by Judgments and other Securities from Sir Paul Pindar and Sir William Courten. And this Deponant farther faith, That He this Deponent hath not Directly nor Indirectly received any Satisfaction for the principal Debt of 151612 l. mentioned in the said Letters Patents for the said Spoyles and Depredations, save only the Sum of 50 l. Sterling, paid by Alderman Backwell, by the Earl of Danby's Order out of the 800000 Pattacoons, and 150 l. more by the States of Holland, towards this Deponents extraordinary Charges in Prison. The King having paid the ordinary Costs and Expences of this Deponents Imprisonment, with two Servants for the space of 22 Months at the Hague, during the last War; notwithstanding there is One Hundred & Fifty Thousand Pounds Sterling, and upwards, due to the Creditors of Sir William Courten, and Sir Paul Pindar upon Bonds and Judgments, wherein many poor Orphants and Widdows are concerned. And this Deponent saith, That the Record consisting of five Skins of Parchment, appointed to be Argued on Fryday 26 of this Instant May. This Deponants Councel that Subscribed the Plea cannot be ready in so short a time to Argue the several Points in Issue, the Record being but Read in Court on Saturday last, & the Defendants having Rejoyned in the Demurrer to the PLEA but two days before.

Iurat 25 die Maij Anno R. Rs. Carol. sec. &c. xxxiiij. Coram me George Carew. Io. Coell.

An Exact Account of the Proceedings at the Marshalsea, June 10: 1682. against Cap: Hawley, and his men, upon Pretence of Piracy, acting under Letters Patents for Reprisals against the Hollanders.

ON the 10th of Iune instant, the Commissioners appointed to try Capt. Hawley and his men, upon the Stat. of Hen. 8. for Paracy & Fellony. Being met at the New Hall in the Marshals Court in Southwark. The Commission was read by Mr. Tho. Bedford, the Register of the Admiralty, Sir Tho. Exton, as President of the Court, gave the Charge: Then the Sheriff of Surry brought in the Precepts, whereupon the Jurors were return'd and Sworn: The Indictment then was delivered to the Grand Jury who found the Bill. Unto which the Prisoners pleaded, NOT GUILTY, Took their Tryal, and put themselves upon God and the Country.

Then Sir Richard Lloyd, Council for the King, alleadged to the Petty Jury that the Letters Patents for Reprisals, aforesaid, were made null and void by Treaty of STATE, Supercedeas, Proclamation, and Iudgment of the Ld Chancellor upon a Scire facias: Yet was so tender of the KING's Honour, That he would not suffer the Letters Patents to be read openly in Court, but only by the Jurors thmselves privately. Whereupon the Council for the Prisoners insisted, That there were not Arguments suffered to be made on the Defendants side, upon the Atturney Generals Demurrer to the Defendants Plea, which consisted of 5 Skins of Parchment: the Record being read on Saturday the 20th of May, Judgment was given in the Week following, before Copies could be made of the Record. However Mr. Carew himself persisted, at this last Tryal, That nothing could affect the Patent but Satisfaction: For That by the Laws & Statutes of England, Letters Patents in this Case, which vested an Interest in the Patentees, by especial Grant (as set forth in his Plea to the scire facias) could not be revok'd or taken away without satisfaction first made to the parties that suffered the wrong. And that the L d Chancellors Judgment is as avoidable upon a Writ of Error for Mistakes in his Opinion, as the Grants in the Letters Patents are avoidable upon Satisfaction made: for that no Act of State (unless an Act of Parliament) can bind the particular Interests of the Subject without Satisfaction: and the scire facias being defective, the Judgment given upon it, is null in it self, there being no such Letters Patents as are mentioned in the Scire facias, returned by the Sheriffs, as aforesaid, for Restitution to Carolo tunc Comiti Salop, &c.

Then the matters of Fact being made out by the Dutch men the Master & others in the Ship call'd the Schonemaker of Dort, against Cap. Hawley and his men, That they took the ship by force, and possest themselves of the Ship and Lading. To which the Prisoners made little Defence, save only, That they did nothing felloniously or pyratically, but acted by Virtue of a Commission and Deputation indorsed upon the back-side of an Authentick Copy of the Letters Patents, hereunto annexed, which was put into the Jurors hands to peruse; who brought them in Not Guilty.

Werereupon Mr. Ioynes the Marshal, immediately arested Mr. Carew, Capt. Hawley, and his men in a joynt Action for 1000l. Dammages, by Writ out of the Admiralty, upon the Dutch Ambassadors desire, at the Suit of Willem de Widt, Iohanes van Eich voor, Alewyn van Vollenhoven, Lodewyck Terwe, Iacob van Harrlem, Antony Walbeeck, Antony van d Santheuvel, all Inhabitants of Dort, that were the Owners of the said ship and lading; but upon Mr. Carew's complaint to the Court, then sitting, and the Dutch Ambassador also present, he was discharged pro tempore. But within two days after gave sufficient Bail by two eminent Citizens to answer the said Action both for himself, the Capt. and his Company.

Then some of the most considerable Creditors claiming under Carew's Administration being unsatisfied with these Proceedings, caused Mr. Ioynes to be arested by Writ out of the King's Bench for 2000l. Dammages, to answer the Value of the said Ship and Lading: having dispossest the said Cap. Hawly, and his men thereof, in an extrajudicial way, upon pretence of a VVarrant from the Lords Commissioners of the Admiralty, dated about the 29 of April 1682. who brought the said Cap. and his men Prisoners, and put them into the custody of Mr. Lowman, the Keeper of the County Gaol in Southwark, where they were detained 44 dayes, or thereabouts, close Prisoners at their own costs and charges, and after they were legally discharged, wereforced to pay Mr. Ioynes and the Register of the Admiralty, several exorbitant Fees, amounting to 6l. 10 s. a man, or thereabouts; to procure which Money, they were forc'd to fell their Beds from under them: For all which the Captain and his men are advised to take their due Course at Law against them for their respective Dammages: That is to say, Cap. Wil. Hawley, Richard Washington, Ri. Terret, Ierom Hawley, Th. Tomkins, Iohn Tayler, and Glanvil Lamboy.

☞ ☞ Its Remarkable, That the Dutch Ambassadors are very clamorous at Court, upon any Complaint of the Hollanders, whose ships and goods are suddenly restored right or wrong, although they refuse to appear for the Heirs and Executors of Ia. Pergens of Amsterdam, & Pet: Boudaen of Middleburgh, who have got into their hands and Possessions the Effects of Sir W. Courtens, & Sir Paul Pindars Estates to the value of 138000l. owing upon Accounts of Bills of Exchange, Moneys lent upon Obligations, and Goods exported out of England in Trade of Partners-ship, wherein divers great summs of Mony were taken up at Interest▪ and imployed in that Trade, and are still standing out and due to divers Orphants and VViddows whose Crys have reached the Heavens, and fallen down with Inundations upon their Country, for Justice in those Civil matters, wherein the States of Holland and Zealand protects the Persons and Estates of the Heirs and Executors of the said Pergens and Boudaen from common Justice, under the Pretence of Treaties of Peace and common Alliance between the King and the States General, although they never came under the Consideration of any publick Treaty, as the spoils and depredations of the Ships Bona Esperanza an Bona Adventura did. And that which cannot be mentioned without Grief and Astonishment, is that the Complaints of the oppress'd Creditors concerning the civil Causes of Actions depending in Holland and Zealand against Pergens and Boudaen leys before the Secretaries and principal ministers of State at Whitehall for relief, without any effectual Answer, although earnestly solicited for many years together. Dormiat aliquando jus sed moritur nunquam.

Recollected by Th. Smith, Gen. Iune 16th. 1682.

A Copy of the Affidavit, made by Mr Conny and Mr Peisley, filed in Chancery, concerning the Entry of the Ships in the Admiralty, hereunto annexed.

IN pursuance of an Agreement in Writing Indented, made the Twelveth day of May; one Thousand six Hundred sixty six, and in the Eighteenth year of the Reign of Our Sovereign Lord Charles the second; Between George Carew, Esq Administrator of the Goods and Chattels, Rights, Debts and Credits of Sir William Courten and Sir Paul Pyndar Knights, (With their Wills annexed) Deceased of the one part; And John Graham of Westminster, Esq and John Brown of London Gent. of the other part, on the behalf of several Creditors in the Schedule to the said Indenture annexed.

These five Ships, with their Tackle, Ammunition, Provisions and Men, are Nominated and Appointed to be entred in the Admiralty, in Prosecution of certain Letters Patents for Reprisals in the said Indenture mentioned, and thereunto Annexed to put the same in Execution, from time to time, according to this entry, and the Proviso's and Limitations in the said Letters Patents contained, until the Debt of One Hundred Fifty One Thousand Six Hundred Twelve Pounds, with all Costs and Damages shall be Recovered and Received, or a Composi • ion made for the same, as in the said Letters Patents is mentioned and expressed.

The Ship named the Planter, of the Burthen of twenty Tuns or thereabouts, four Guns, twenty five Men, Victualled for six Months, Aaron VVright Commander, to put the said Commission or Deputation in Execution, from six Months to six Months, until the Debt of One Hundred Fifty One Thousand Six Hundred and Twelve Pounds, with all Costs and Dammages, shall be Recovered or otherwise Composed.

The Ship named the Asia, burthen one Hundred Tuns or thereabouts, Ten Guns, seventy Men, Captain Roger Hawkshead, Commander, Victualled from time to time for the space of three Months every season, until the said Debt of One hundred, fifty one thousand six hundred and twelve Pounds, with Costs and Dammages mentioned in the said Letters Patents, shall be recovered or composed.

The Ship named the VVilliam and Thomas, burthen one hundred and fifty Tuns or thereabouts, two hundred Men, twenty five Guns, Victualled for nine Months, Captain Robert Cambell Commander, and at the Expirations of nine Months, for nine Monts more; and so at the end of every nine Months to be Victualled de Novo, from time to time, for nine Months longer, until the said Debt, Dammages and Costs shall be Recovered and Received, or a composition made with the persons Interested and Injured.

The Ship named the America, burthen fourscore Tuns or thereabouts, one hundred Men, eight Guns Victualled for six Months, Captain VVilliam Hawley Commander, and at the Expiration of the said Term, to Revictual and Equip the said Ship, from six months to six months, until the said Debt of One Hundred Fifty One Thousand Six Hundred & Twelve Pounds, with costs and Dammages shall be satisfyed & repay'd.

The Ship named the Affrica, burthen one hundred and twenty Tons, or thereabouts, one hundred and fifty Men, fifteen Guns, Victualled for 12 months, Captain Thomas VVood Commander, to put the: said Commission in Execution, as aforesaid, according to the several Conditions, Limitations and Proviso's in the said Letters Patents, expressly mentioned and contained.

Unto whom Deputations were immediately given accordingly of the same date, to put the said Letters Patents in Execution at such times and in such parts of the World as they should think most convenient for their Purpose.

THomas Conny, and Samuel Peisly of London Gentlemen, make Oath, That they these Deponents, did in Company with George Carew, Esq on the ninth of September, 1681. at the request of several persons Interested and Concerned in the Debt of 151612 l. mentioned in the Letters Patents within Recited; call upon Thomas Bedford, Esq Register of the Admiralty Court, at his Office in Doctors-Commons, and then and there require of him to make an entry of the five Ships with the number of their Men, Guns, Provisions, Burthens, Commanders Names, and times of Victualling, as they are mentioned and expressed on the other side of this Affidavit. whereupon the said Thomas Bedford, desired these Deponents to come again the next Morning, and appear with him, before Sir Richard Lloyd, Surrogate to the Iudg of the said Court, who took the same in his Hand, and after he had perused the Contents thereof, gave these Deponents the said Paper again, in Company of the said George Carew. Saying they would not make any other entry, then several Notes they had taken in Writing, and the Names of these Deponents.

Jurat 10. die Octobris Anno Regni Dom nri. Car. sec. 33o. Coram me magro in Canc'. Io. Francklin. Ex. W. Poynter. Tho. Conny. Samuel Peisly.

A COPY of the LETTERS-PATENTS For Especial Reprisals granted by the King of Great Britain, (under the Great Seal of ENGLAND) against the States General, and their Subjects, for 151612 l. Sterling, with Costs and Damages for the Recoverie thereof.

CHARLES the Second, by the Grace of GOD, King of England, Scotland, France and Ireland, Defender of the Faith, &c. To all Christian People to whom these Presents shall come, Greeting. Whereas our loving Subject William Courten Esq deceased, and his Partners, in the year 1643. by the Depredation and Hostile Act of one Geland, Commander in Chief of two Ships belonging to the East-India Company of the Netherlands, was between Goa and Maccao in the Streights of Malacca, deprived and most injuriously spoiled of a certain Ship named the Bona Esperanza, and of her Tackle, Apparel & Furniture, and all the Goods and Lading in her, upon a very hopeful Trading Voyage to China, which were carried to Batavia, and there all de facto, without due Process of Law confiscated: and that also in the said year, another laden Ship of our said Subject, called the Henry Bona Adventura, being come on ground on the Island Mauritius, was there both Ship and Goods seized upon by some of the Officers and Ministers, and others under the Command of the said East-India Company, and utterly deteined from the right Owners. And whereas the said William Courten, and his Assigns in his life-time, used all possible Endeavours to recover the said Ships and Goods, and to procure further Iustice against the Malefactors, and yet could obtain no Restitution or Satisfaction, whereby they became to be much distressed and utterly undone in their Estate and Credit: and that thereupon, and upon the most humble Supplication and Addresses of Francis Earl of Shrewsbury, and William Courten Esq Son and Heir of the said William deceased, Sir John Ayton, and Sir Edmond Turnor Knights, George Carew and Charles Whitaker Esquires, on the behalf of themselves and divers others Interessed in the said two Ships Bona Esperanza and Henry Bona Adventura, and in the Estates of the said William Courten deceased, Sir Edward Littleton Baront and Sir Paul Pyndar Knight deceased, That We would take their Case into Our Princely consideration. We out of the just sense We then had, and still have of their unjust▪ Sufferings in that Business, both by Our own Letters under our Sign Manual to the States General of the United Provinces, and by Sir George Downing Knight and Bart. Our Envoy Extraordinary, to whom We gave Especial Command so to do, required satisfaction to be made according to the Rules of Iustice and the Amity and good Correspondence, which We then desired to conserve with them firm, and inviolable: And whereas after several Addresses made to the 〈◊〉 States General by our said Envoy, and nothing granted effectual for Relief of Our said Subjects (whom We take Ourselves in 〈◊〉 and Iustice, concerned to be satisfied and repaired) We lately commanded the said Sir George Downing to intimate and signify to the said States, That We 〈◊〉 their 〈◊〉 Answer, concerning Satisfaction to be made for the said Ships and Goods by a time then prefixed, and since elapsed, That we might to govern Our selves thereupon, that Our aforesaid Subjects might be relieved according to Right and Iustice: And yet no Satisfactory Answer hath been given, so that We cannot but apprehend it to be not only a fruitless Endeavour, but a prostituting of Our Honour and Dignity, to make further Application, after so many Denyals and Slightings. And whereas John Exton, Doctor of Laws, Iudg of Our High Court of Admiralty of England, upon Our Command, to certify to Us the Da • ie of the Losses and Dammages Instaine▪ by the said William Courten and Partners, whose Interest is now vested in our loving Subjects, Sir Edmond Turnor Knight and George Carew Esq and Partners, hath upon full Examination and Proofs thereof made by Witnesses in Our High Court of Admiralty, Reported and certified under his Hand, That the same do amount to the sum of One hundred fifty one Thousand six hundred and twelve Pounds.

Now know Ye, That for a full Restitution to be made to them for their Ships, Goods and Merchandizes, of which the said William Courten, and the Assigns of the said William Courten, and Partners, were so despoiled, as aforesaid, with all such Costs and Charges; as they shall be at for Recovery of the same: Wee by Advice of Our Privy Council have thought fit, and by these Presents do Grant License and Authority under our Great Seal of England, unto Our said Subjects Sir Edmond Turnor and George Carew, their Executors, Administrators and Assigns, for and on the behalf of themselves, and other persons interessed as aforesaid, to Equip, Dictual, Furnish, and set to Sea, from time to time, such and so many Ships and Pinaces as they shalll think fit: Provided alwayes that there be an Entry made and Recorded in the Admiralty Court of the Names of all ships and Vessels, and of their Burthen and Ammunition, and for how long time they are Victualed: and also of the Name of the Commander thereof, before the same, or any of them be set forth to sea: and with the said ships and Pinaces by force of Arms to set upon, take and apprehend any of the ships, Goods, Moneys and Merchandizes of the said States General; or any of their subjects inhabiting within any their Dominions or Territories whatsoever, of any particular Estate within those Provinces, and the Inhabitants thereof; wheresoever the same shall be found, and not in any Port or Harbor of England, and Ireland, unless it be the ships and Goods of the Parties that did the Wrong: and the said ships, goods, Moneys and Merchandizes being so taken and brought into some Port of Our Realm or Dominions, an Inventory thereof shall be taken by Authority of Our Court of Admiralty, and judgment shall be given in Our Court of Admiralty by the Iudg or Iudges thereof, for the time being and upon Proof made before him or them, That the same ships, Goods, Wares, Merchandizes or Money, did belong to the States General, or any of their subjects, as aforesaid, That they shall be lawfull Prize to the said Sir Edmond Turnor and George Carew, their Executors, Administrators and Assigns, as aforesaid, to keep and retain in their or any of their Possessions, and to make sale, and dispose thereof in open Market, or howsoever else, to their and every of their best advantage and benefit; in as ample manner, as at any time heretofore hath been accustomed by way of Reprisal, and to have and injoy the same as lawful Prize, and as their own proper Goods: so that neither the Captain, Master nor any of the Company that shall serve in his own person, or shall promote and advance the said Enterprize in manner and form aforesaid, shall in any manner of wise be reputed or challenged for any Offender against any of Our Laws. And that also it shall be lawful for all manner of Persons, as well Our Subjects as any other, to buy the said Ships, Goods and Merchandizes so taken, and apprehended by the said Captains, Masters and others, and adjudged, as aforesaid, without any Damage, Loss, Hindrance, Trouble, Molestation, or Incumbrance, to befall the said Buyers, or any of them, in as ample and lawful manner, as if the said Ships, Goods, Wares and Merchandize had been come and gotten by the lawful Traffique of Merchants, or of just Prizes in time of open War. Provided always, That all ships, goods and merchandizes, taken by Virtue of this Our Commission shall be kept in safety, and no part of them spoiled, wasted or diminished; nor the Bulk thereof broken, untill Iudgment have first past, as aforesaid, That they are the ships and Merchandizes of the States General, or some of their subjects, as aforesaid. And if by Colour of this Our Commission, there shall be taken any ships, Goods or Merchandizes of any of Our loving subjects, or the subjects of any Prince, or State in good League, or Amity with Us (except the States General) or their subjects, as aforesaid: and the Goods therein Laden, sold, embezled or ••••• ed, or the Bulk thereof broken in any place, before they shall be adjudged to belong to the said States General, or to some of their subjects, as aforesaid, That then this Commission shall be of no sufficient Authority to take the said ships Goods and Merchandizes, or to Warrant, and save harmless such as shall Receive, Buy or Intermeddle therein but that both the Prizes so taken, and the said ship of War, shall be confiscated to Our Vse. And further, We do hereby declare, That it is Our Will and Pleasure, That this Our Commission shall remain in full Force and Power, to all Intents and Purposes until the said Sir Edmond Turnor and George Carew, their Executors, Administrators and Assigns, as aforesaid, shall by Virtue thereof have by Force of Arms Apprehended, Taken, Seized, Recovered and Receiv'd from the said States General, or their Subjects, One hundred fifty one Thousand six hundred and twelve pounds, according to Appraisement to be made by sufficient Appraisers upon Oath, Nominated and Authorized in our said Court of Admiralty, of all such Ships, Goods, Wares & Merchandizes, as shall be taken from the said States General, or any of their Subjects, by Virtue of this Commission, or shall otherwise receive Satisfaction of the Debt aforesaid, by Composition to be made between those of the East India Company of the Netherlands, and the said Sir Edmond Turnor and George Carew, their Executors, Administrators and Assigns as aforesaid. ☞ Notwithstanding it may so happen, the present Difference between Us, and the States General depending upon General Reprisals, may be agreed and composed, and that in the Interim a Peace and good Correspondance may be renewed between Us, and the said States General: In which Case, Nevertheless, it is Our Will and Pleasure, That in the Execution of this Our Commission, no Violence shall be done to the Persons of the said Subjects of the States General, but only in Case of Resistance; and that after, in cold Blood, the said Subjects of the said States General, if hurt or Wounded, shall be used with all convenient Office of Humanity and Kindness. ☞ And Further, Our Will and Pleasure is, That although it shall happen, That all Hostility between Us and the States General, and Our respective Subjects shall cease, yet this Our Commission shall remain, and be in full Force and Power, to the said Sr Edmond Turnor and George Carew, their Executors, Administrators and Assigns, as aforesaid, by Virtue thereof to apprehend, take and seize by Force of Arms, so many more of the said Ships and Goods of the said States General, or any of their said Subjects, as besides the said Summ before mentioned shall countervail, satisfie and pay all such Costs and Charges as the said Sir Edmond Turnor and George Carew, their Executors, Administrators or Assigns, as aforesaid, shall from time to time make proof to have disburst and paid towards the Equipping, Manning, Paying, Furnishing and Victualing of the said Ships, so licensed and authorized, as aforesaid, by this our said Commission, to be Equipped, Manned, Payed, Furnished or Victualed by the said Sir Edmond Turnor and George Carew, their Executors, Administrators and Assigns, as aforesaid, for the Purpose aforesaid. And Our Will and Pleasure is, and We do hereby require Our Iudge or Iudges of Our High Court of Admiralty, for the time being, and all other Officers of the Admiralty, and all other our Iudge or Iudges, Officers, Ministers and subjects whatsoever, to be aiding and assisting to the said Sir Edmond Turnor and George Carew, their Executors, Administrators and Assigns as aforesaid, in all points in the due Execution of this Our Royal Commission, and to proceed to Adjudication, and to adjudge all ships, Merchandizes, Moneys and Goods by Virtue thereof to be taken and proved to belong to the said States General or any of their subjects, to be Lawful Prize to the said Sir Edmond Turnor and George Carew, their Executors, Administrators or Assigns, as aforesaid, according to Our Princely Intention, hereby signified and expressed, and to take Care that this Our Royall Commission be duely executed, and favourably Interpreted and Construed in all respects, to the Benefit and best Advantage of the said Sir Edmond Turnor and George Carew, their Executors, Administrators and Assigns, as aforesaid. In Witness whereof, We have caused these Our Letters to be made Patents. Witness Our self at Westminster the 19 day of May, in the 17 Year of Our Reign.

Per ipsum Regem. Barker.

Nota, That there is due to the Estates of Sir William Courten and Sir Paul Pindar the Summ of Two hundred Thousand Pounds sterling and upwards from the Crown of Enland, for Moneys lent to the late King upon several Branches of the Revenue, before the year 1640. towards the ordinary Charge of the Crown, the greatest part of the said Money being taken up at Interest, and still standing out, and due to several Orphants and Widows who claim their proportionable Shares of the Debt and Dammages mentioned in the Letters Patents aforesaid.

Memorandum.

THat King Charles the First, found it necessary to put Sir William Courten, and his Partners, upon Trading Voyages to the East-Indies, China and Japan, unto whom he gave a Charter under the great Seal of England, for the prosecution thereof in the Year 1635.

That his said Majesty incouraged Sir Paul Pindar, and others, to advance divers great Sums of Money, as Adventurers in that Expedition and Enterprize.

That Sir Edward Littleton, and others Interessed before the Kings most happy Restoration (being under the Notion of Delinquents and Sequestration) durst not appear openly against the States and their Subjects for Common Iustice, concerning satisfaction and reparation for the Spoyles and Depredations.

That Sir William Courten and Sir Paul Pindar, strained their Credits so far by borrowing several great Sums of Money, both of Natives and Strangers to carry on this affair, That there is not a County nor Corporation in England; Wherein there are not either Original Creditors, or their Relations at this time Complaining for their Debts.

It is inconsistent with the Honour and Interest of the King, and Kingdom, (under all the Circumstances attending this Case) to let the History of such Oppression remain upon Record, when the Creditors have made their humble Proposals to his Majesty, that Lyes before the Lords Commissioners of the Treasury, and Mr. Secretary Jenkins for relief upon easie Terms, even out of the Foundations that Sir William Courten, and Sir Paul Pindar laid.

The Royal Word of a KING being past, and confirmed under his Great Seal, That his Grant should not be Obliterated, until Satisfaction and Reparation to the Grantees in this Case; there ought to be an Inquiry made, Whether the Parties Grieved be Satisfied and Repaired, and also that they may be duly heard, before this Grant be any ways called in, by Ministers or Officers of State, to be Cancelled and made Null. It being repugnant to the Laws of God, the Laws of Nature, the Statutes of this Realm, and even against the Laws of Common Humanity, that a particular Interest (so ascertained and secured) should be taken away from Private persons for a Common Good, and not be Satisfyed and Repaired, either out of the Publick Purse, or suffered to Reprise their Satisfaction and Reparation, for the Wrongs and Injuries done them, by the Subjects of Holland and Zealand, without the Danger of being Hanged as Pyrates and Felons, for asking their OWN.

Three Humble Proposals of the Creditors of Sir William Courten, Sir Paul Pyndar, William Courten Esq and David Goubard; Humbly offered to the KING.

That in consideration of the Debt and Damages of 151612 l. contraded by the Spoils and Depredations upon the Ships, Goods, and Factories of Sir William Courten, Sir Paul Pyndar, and their partners, in the East-Indies; for which Letters Patents for Reprizals were granted under the Great Seal of England, to continue effectual in the Law, until the said sum of 151612 l. with Costs and Damages, should be recovered and received; which is become a Debt incumbent upon the Crown, if his Majesty undertakes to Indempnifie and discharge the States-General and their Subjects concerning the same.

I. It is therefore humbly proposed, That His Majesty should, in lieu thereof, grant and assign the 4 and ½ per cent, arising out of the Barbadoes, and the Careebe Islands, and the wast Lands there, to certain Trustees, for the use and benefit of William Courten, Grand-child and Heir of Sir William Courten, and the Creditors of his Father and Grand-father, who were the Original Proprietors of the Island of Barbadoes, whereof they were dispoiled by Iames, late Earl of Carlisle, and his Adherents; to the insupportable Damages of Sir William Courten, his Family, and Creditors.

That in Contemplation of Sir Paul Pyndar's great Services and Sufferings for the Crown of England; and more particularly, for the vast sums of Money lent to the late King, Charles I, amounting to the sum of One hundred and thirty thousand Pounds, upon the Allom-Farm, Sugar-Farm, Collectors of the Papists Compositions in the Northern Counties, and other Branches of the Revenue; which were diverted in the late troublesom times to other uses, leaving Sir Paul Pyndar's Assignments unsatisfied, and many of his Creditors undone.

II. It is therefore humbly proposed, That there may be a Privy-Seal granted for Fifty thousand Pounds upon the Reference from His Majesty, that lies before the Lords Commissioners of the Treasury to be raised out of the said Papists Estates (at the instance and Petition of Richard Powel Esq and Nathaniel Hill Gent.) upon their old Compositions in the eleven Northern Counties, as they paid under the Collection of Thomas, Viscount Wentworth, in the year 1638. which they are willing now to satisfie accordingly.

That whereas there are divers great Debts and Sums of Money owing, and resting in the hands and posessions of the Sons, Heirs and Executors of Jacob Pergens of Amsterdam, and Peter Boudaen of Middleburgh in Zealand, that belongs to the Estates of Sir William Courten and Sir Paul Pyndar, upon Bills of Exchange, Obligations for Money lent, and private Contracts in Trade and Merchandizing, amounting to the sum of One hundred and twenty thousand Pounds, and upwards: Whereupon there are Actions depending in the ordinary Courts of Iudicature in Holland and Zealand, ready for Sentences, and final Decrees; wherein Iustice is positively denyed, upon vain pretences of extinguishments and mortifications by Treaties of common Amity and Alliance.

III. It is most humbly proposed, That His Majesty would be graciously pleased effectually to recommend the Petition of the Creditors, that lies before the Lord Conaway to that purpose, for speedy satisfaction to be made therein, for relief of His most Oppressed Subjects.

POSTSCRIPT.

KInd Reader, before you come to peruse the Answer to the Lord Chancellor's Arguments, when his Lordship gave that hasty Iudgment for the King, upon the Scire facias, and Pleadings relating to the Letters Patents for Reprizals, without hearing Counsel of the other side: It's necessary that you should first read the Abstract of the Scire facias, brought by Sir Robert Sawyer, His Majesty's Attorney-General, and the Plea thereunto: The Demurrer, and Rejoynder thereupon, being things of form and course, to bring the whole matter in Issue, are omitted herein, for Brevity-sake. The Plea being filed in Easter-Term 1681. lay dormant until Easter-Term 1682. Then the Demurrer was brought in generally that the Plea was not sufficient in Law, &c. Whereupon the Defendents persisting in their Rejoynder that it was, the Record was made up and read in Court accordingly

An Abstract of the Scire facias (returned into the Pety-Bag-Office) rendred out of Latine into English

CHARLES the second, by the Grace of God of England, Scotland, France and Ireland King, &c. To the Sheriff of Middlesex, greeting. Whereas by our Letters Parents under Our Great Seal, dated the 29th of May, in the 17th year of Our Reign, for restitution to be made to Charles then Earl of Shrewsbury, and others, for certain Ships, Goods and Merchandizes therein mentioned, that were unjustly taken and detained from them by the Subjects of the States-General of the United Provinces: We gave License and Authority to Sir Edmond Turnor Knight, and George Carew Esq their Executors, Administrators and Assigns, on the behalf of themselves and others to set forth several Ships and Pinnace's to Sea, from time to time to take and seize the Ships, Goods and Merchandizes of the said States, and their Subjects; and to detain and keep the same, as lawful Prize, until the said Turnor and Carew shall have recovered the Money in the saeid Letters Patents mentioned, with their Costs and Damages, as by the said Letters Patents (with the special Clauses and Provisoes therein contained) may appear; With this, that by Articles of Peace and Amity between Vs and the said States-General at Breda, July 21. 1667. in the 19th year of Our Reign, and ratified under Our Great Seal Aug. 24. following: It was agreed and concluded, that all Letters of Reprizals, Marque, and Counter-marque, general and special, should be inhibited and revoked; so that the Subjects of either Party should not exercise any Hostility or Violence afterwards, upon any pretext or colour whatsoever; And by other Articles of Peace and Amity between Vs and the said States, concluded at Westminster, Febr. 9. in the 26th. year of Our Reign, and ratified under Our Great Seal on the 28th. of the same month, and proclaimed accordingly, that the Treaty made at Breda was renewed and confirmed; And that further by Our Letters Patents, dated June 6. in the 32d. year of Our Reign, We had superseded, revoked and made null and void the said Letters Patents, bearing date May 19. in the 17th. year of Our Reign, as aforesaid; And that all and every the Powers, Authorities, Clauses, Commissions, Grants and Licenses in the said Letters Patents confirmed to the said Turnor and Carew, were thereby made null and void, and of no effect in the Law. Wherefore, to the end that the Treaties of Peace and Amity between Vs and the States, might be kept firm, and that a further remedy might be provided for that purpose: We command you, by good and lawful men of your Bailywick, to summon the said Sir Edmond Turnor and George Carew to be and appear before Vs, in Our High-Court of Chancery 15 days after Easter, to shew cause, if they can, why the Letters Patents aforesaid should not be brought into Chancery, and the Enrollment thereof cancelled, and made null, and void. Witness Our Self at Westminster, the 12th. day of February, in the 33d. year of Our Reign.

By virtue of which Writ, the said Sir Edmond Turnor and George Carew being summoned, and the said Writ returned by Slingsby Bethel and Henry Cornish, Esqs; Sheriffs, they appeared and pleaded in Easter-Term accordingly, as follows.

An Abstract of the Plea filed in the Pety-Bag-Office, in Easter-Term, 1681.

THe aforesaid Sir Edmond Turnor and George Carew, by Matthew Pyndar Esq their Attorney, comes and defends the force and injury, &c. craving Oyer of the Letters Patents, and pleaded the same in haec verba; Charles II. by the Grace of God, &c. which being read, they said, that the Letters Patents ought not to be brought into Chancery, nor the Enrollment thereof obliterated, and made null or void; because King Charles I. by his Letters Patents under the Great Seal of England, in the year 1635 gave Sir William Courten and his Partners a Charter to Trade and settle Factories in the East-Indies, China and Iapan, for Trading Voyages; and renewed the same to William Courten, Son and Heir of Sir William, and his Partners. And that Sir Paul Pyndar had furnish'd Sir William Courten with Thirty five thousand Pounds, towards the first enterprize of that Trade. And that the said William Courten the Son, and his Partners, had set forth the two Ships named the Bona Esperanza, and Henry Bona Adventura, (in▪ the Patent for Reprizals mentioned) in the year 1641. with Moneys, Goods and Merchandizes, for supply of the said Factories and Trade; whereof seven parts belonged to Courten, and the 8th. part to his Partners. And that William Courten the Son, by his Indenture, dated 26 April 1642. had transferred and assigned his Interest in the said Ships and Merchandizes to Sir Edward Littleton, in the County of Stafford, Baronet, for Counter-security against several Debts contracted by Sir Wil. Courten and his Son wherein he stood obliged for payment thereof▪ And that Sir Edward Littleton, joyntly with Wil▪ Courten the Son, had by their Indenture dated Decemb. 19. 1642. transferred and assigned all their Interest in the said Ships, Bona Esperanza and Henry Bona Adventura, to Sir Paul Pyndar, towards his Debt, and the surplus to the Creditors of. Courten and Littleton. And the said Turnor and Carew further say, that the Officers of the East-India-Company of the Netherlands in the year 1643. unjustly seized and detained the said two Ships and Lading, and converted the same to their own use, without any legal Process, contrary to the Laws of Nations, and the Laws and Statutes of this Realm; which was proved by the Testimonies of several Witnesses in due form of Law taken. And that the said East-India-Company, and the States of the Netherlands, had altogether denied to make any satisfaction or reparation to the said Proprietors for the said Spoils and Depredations. Afterwards, Wil. Courten Esq the Son and Executor of Sir Wil. Courten, died Intestate, in the year 1655. And William Tooms, Executor of Sir Paul Pyndar, in the same year also died Intestate; And that Letters of Administration of the Goods and Chattels of Sir Paul Pyndar, with his Will annexed unadministred, was in due form of Law granted to Sir William Powel Baronet; and Letters of Administration of the Goods and Chattels of Sir Will. Courten, with his Will annexed, unadministred, was likewise in due form of Law, granted to the said George Carew, who (bona fide) paid and satisfied the said Sir Will. Powel, Iohn Whitfield, Esq, and others, the sum of 3000 l. sterling, in satisfaction of their Debts, upon account of Sir Paul Pyndar, out of the said Carew's proper Money; whereupon Sir Will. Powel by agreement having relinquished the Administration, Letters of Administration, with Sir Paul Pyndar's Will annexed, was in due form of Law granted to the said George Carew. Then the said Francis Earl of Shrewsbury, Sir Iohn Ayton, and others, humbly supplicated His Majesty, on the behalf of themselves and others interessed, to require the States-General to make satisfaction and reparation for the said Spoils and Depredations, as in the said Letters Patents at large appears; but no restitution or reparation could be obtained; Whereupon the said Letters Patents were granted for the recovery of 151612 l. with Costs and Damages, under those conditions and limitations therein expressed. And the said Turnor and Carew further say, that they are entituled, and legally vested with an Interest, and inviolable right to recover and receive the said Money, according to the Laws of Nations, and the Laws and Statutes of England, and the very express grants and intentions in the Letters Patents contained accordingly; notwithstanding any War or Wars, or the supposed Treaty at Breda, or any other Treaties whatsoever, between His Majesty and the States-General; or the pretended Supersedeas in the Scire facias mentioned. The said Turnor and Carew▪ in fact saying, that they, or either of them, or any claiming under them, or either of them, have not to this day received, taken or seized from the States-General, or their Subjects, or the East-India-Company of the Netherlands, the said sum of 151612 l. or any part thereof, or any part of the 800000 Pattacoons, mentioned in the 10th. Article of the last Treaty at Westminister, mentioned in the said Scire-facias; or half the Charges and Expences occasioned thereby. Wherefore, the Letters Patents ought not to be brought into Chancery, or the enrollment thereof cancelled, or made null and void; for that the King was not deceived in His Grant.

Signed by Richard Wallap, Edmond Saunders, Iohn Somers. Richard Powell, Charles Molloy,

THe Record being made up, and brought into Court on the 26th. of May 1682. the Attorney-General and the Solicitor both moved for Judgment without any other Argument for it, than pretended. Reason of State. Whereupon the Councel for the Defendants moved, that it was against the practice of all Courts in Westminster-hall, to argue the same. Term the Record was brought in, or without a Consillium, and a convenient time appointed to study and argue the points in Issue; especially in a matter of this weight and consequence, being a noble Case to be debated and argued, both in point of Law and State; and therefore desired a longer day; whereupon the Lord Chancellor stood up, and said, If they were not ready to argue, he was ready to give Judgment; and that they might argue by the Spirit, if they would. So his Lordship informing the Court that he had studied the Case himself; And for the satisfaction of all man-kind (as he said) gave these Arguments following, which were taken in writing by several Councellors at Bar.

The Lord Chancellor's Arguments.

THe Statute of 31 H. 6. cap. 4. gives Admiral Iurisdiction to the Court of Chancery for speedy relief in cases where strangers are robbed at Sea by the King's Subjects.

And that, after a Peace concluded, Letters of Marque (for Reason of State) are totally extinguished.

These Letters Patents, especially being granted when this Kingdom and the Hollanders were in a state of Enmity, (they appearing to bear date the 19th. of May, 1665. in the heat of the War) are therefore disannulled by the subsequent Peace.

A Safe Conduct granted by the King, supersedes Letters of Marque, as appears, 11 H. 4. N. 66. by Iudgment of the Parliament of Paris, and the Parliament of Montpellier, 2 H. 5. N. 34.

A Truce between Nations that have been at Enmity, supersedes Letters of Marque, as appears, 11 H. 6. N. 34. Parl. Rot.

A fortiori, A Peace, after Proclamation thereof, and a Supersedea sunder the Great Seal, will abolish and extinguish Letters of Marque; and that for the Reason aforesaid; The King having the Power of Peace and War.

Mr. Carew cannot be a good Subject, to involve the Publique, by executing these Letters of Marque in times of Peace; who (as I am informed) had 30 Ships out in time of War.

And the Clauses contained in the Patent, that no Peace shall extend to the prejudice of the said Letters Patents, before satisfaction, was a Clause unusual, and incerted by surprize, and ought not to have been, and is in no sort obligatory.

Wherefore, I give Iudgment, That the Letters Patents shall be brought into Court, to be cancelled, and the Enrollment thereof razed.

☞ The Argument turns upon his Lordship; the King being sole Legislator of Peace and War. The Clause of continuance in the Patent, hath the force of an Act of Parliament

His Lordship would be both Judge and Party, (and sole Arbiter) if a Writ of Error did not lie in the Kings-Bench, and finally in Parliament, to reverse his Erroneous Iudgment.

A Copy of the Order in Chancery. Veneris, 26 die Maii, Anno Regni Caroli secund' Regis tricesimo quarto. Inter Dom' Regem Quer', Edmund' Turnor Mil' & Georg' Carew Ar' Defend'. Lord Chancellor.

THe Record of the Demurrer joyned in the Pety-Bag upon a Scire facias brought by Mr. Attorney General on the behalf of His Majesty, for revoking certain Letters of Reprizal granted to the Defendents the 19th. of May 1665. coming this present day to be argued before the Right Honourable the Lord High-Chancellor of England, by vertue of an Order of the 20th. instant, at which time the Record was read: The Defendents Councel desired longer time; But, upon hearing of Mr. Attorney-General on the behalf of the King, his Lordship declared, that the matter in debate did concern the Publick, and could not admit of any further day to be given to the Defendents. And his Lordship having been attended with the Record, and duly considered the whole matter, is of opinion, and doth order, That the said Demurrer do stand, and that Iudgment be entred up for the King, for the revoking the said Letters Patents; and doth further order, That the Enrollment thereof be vacated upon Record, and that the Defendants do forthwith bring into this Court the said Letters Patents, and all Exemplifications and Duplicates thereof, under Seal to be cancelled.

Ex. Per George Edwards, Deput' Register.

On the next morning the Lord Chancellor was pleased in open Court to give order, that the Attorney-General should be careful in drawing up the Judgment; and that the Clerk of the Pety-Bag should enter it upon the Roll, aud exemplifie the whole Record, under the Great Seal, and send it to the Admiralty-Court, to remain there.

It may be observed, That the Scire facias being returned in Easter-Term 1681. and the Plea filed of the same Term, and the Demurrer coming in not before Easter Term last: the Attorney-General had a whole year to consider of the said Plea, which is admitted as to the matters of Fact in all particulars by the said Demurrer, and since sworn to be true by one of the Defendants: So that the Attorney-General making no Reply, insisted only upon the Law. The Questions therefore that do naturally arise upon it, are, Whether the Scire facias be a Legal and warrantable Writ in this Case for the Lord Chancellor to ground his Judgment upon, for repealing the Letters Patents, (without satisfaction) so solemnly obtained under the Great Seal of England, according to the Laws of the Land? or, Whether the Plea be not sufficient in Law to support and maintain the Letters Patents, until the Debt and Damages be recovered?

BUt before we come to answer the Lord Chancellor's Arguments, it's absolutely necessary to speak a word or two concerning the Scire facias, and the Order entred by the Register, that the Defendents should bring the Letters Patents, and all Exemplifications and Duplicates thereof, under Seal into Court, to be cancelled.

It's recited in the Record made up, pro restitut' faciend' Carolo tunc Comiti Salop, & al' in eisdem Literis Patent' &c. whereas there is no such Patent as is mentioned in the Scire facias. Notwithstanding, it's affirmed in the said Order of the 26th. of May 1682. That his Lordship had been attended with the Record, and duly considered the whole matter; and yet in the second Line of the said Record it's written, Carolo tunc Comitis Salop; whereas in the Letters Patents for Reprizals it's mentioned for restitution to be made to Francis Earl of Shrewsbury, and others; So that the Foundation being bad, the Structure must fall to the Ground: there being no such Patent as the Scire fas' recites. Whereupon a Distringas is since issued forth to the Sheriff of Mid. to distrain all the Lands and Tenements of George Carew within his Bayliwick, until the said Patent, Exemplifications and Duplicates thereof, under Seal, be brought into Court, and cancelled; which is impossible for him to do, being out of his power; the said Duplicates and Exemplifications being in the hands of several Persons beyond the Seas, with Assignments and Covenants that they shall continue effectual in Law, until the Debt of 151612 l. with Damages, shall be recovered and received, according to the words of the Grant, and the King's Declaration. Wherefore, it would be both Honourable and Just for any Ministers of State in England or Holland, to bring the Scire facias in one hand, and Money to satisfie the Debt and Damages in the other; And without that Quid pro quo, (under his Lordship's favour) the Patent cannot be legally revoked, repealed, or made void.

Yet for satisfaction of all Mankind, that the Defendents will abide by their Plea, they have retained their Councel to give modest Answers to the Lord Chancellor's Arguments, as followeth; who holds it convenient to begin at the root, where his Lordship ended.

That the Clause of continuance was unusual, and incerted by surprize, and ought not to have been, and is in no sort obligatory.

1. The stipulation for extinguishing all other Losses and Damages by the Treaty 1662. from the like Sovereign Remedies. 2. The States denyal of making satisfaction for the Spoils and Depredations of those two Ships, according to the said stipulation. 3. The Services and Sufferings of Courten and Pyndar for the Crown of England, so eminently known to all Parts of the World 4. And the great Supplies given to His Majesty in Parliament, for the Protection of His Subjects at the very time the said Patent for Reprizals was passing through Sir Heneage Finch's Office, when he was Solicitor-General, (upon the Negotiation of Mr. Gilbort Crouch) were four invincible Arguments for the King to pass this Grant of common Right, to his Subjects, with those two Clauses of a continuando until the Debt 151612 l. wi • h Costs and Damages, should be recovered and received; the King having declared so much in his Speech to both Houses of Parliament, and expressed in the very body of the Patent, (in these words) For relief of Our said Subjects, whom We take Our selves in Honour and Iustice concernd to be satisfied and re-paid So that the King declares Himself equally Great and Just. Therefore, neither surprized nor deceived in this Grant of Reprizals, that had passed the Test of all the chief Officers of State and Trust in the Kingdom, whose Judgments are Arraigned, by questioning the validity of the said Grant.

The reasons are very obvious to all Mankind, that the Patent ought to be so worded, until the Debt and Damages shall be recovered and received; for that there is no other remedy for the Subjects relief, but such Grants, grounded upon the Law of Marque, after Justice denied in the Case of a Spoil.

This Clause of continuance distinguisheth between general and particular Reprizals; the one being an Act of War, the other a Process at Law, and out of the King's Power to obstruct the restitution of this Debt and Damages to the persons interessed, and injured otherwise the remedy would prove a Grievance, after such vast Expences in ascertaining the Debt and Damages according to the Rules of Law, if the Grant should not be obligatory.

It is in the Power of the States of Holland, or the King, to satisfie this Debt and Damages, to make good the King's own words, and preserve His Honour and Justice entire, which ought to be kept Sacred and Inviolable; And if the King cannot pardon the least Trespass, when sued for reparation in the ordinary Course of Law: à fortiori, He cannot pardon a Spoil after a Judicial Grant to recover it according to the Laws and Statutes of the Realm.

General Letters of Marque, in time of War, are ambulatory, and revokable at Pleasure, being usually granted to all persons in all Nations that will ask for the same, to weaken the Enemy; as they did at Oast-End, Dunkirk, Flushen and Diep, in the times of War between Spain and England, France and England, and Holland and England; and those are called Privatters, or Private men of War, of whom the Lord High-Admiral hath a tenth part of all Prizes; And these are the Letters of Marque▪ the Lord Chancellor so often mentions in his Arguments; whereof there are hundreds of Precedents in the Courts of Admiralty in England, Holland, France and Spain; which are Temporary Grants, and determinable at Pleasure, or certain days prefixt under the Seal of the Admiralty.

By the sacred prescriptions in Holy Writ, restitution is to be made double the value of the property injuriously taken, which implies the Charge of Prosecution; and if the Trespasser, be not able to satisfie, he shall be Sold for his Theft, or kept for a Ransom: Upon this ground the old Writs in the Register, and F. N. B were made, and our Ancestors were so careful for the preservation of every English-mans Right and Property, and the encouragement of Navigation and Commerce; That Merchants Strangers resident in England, and their Goods were Arrested by those Writs, for satisfaction of Injuries done at Sea by the People of that Kingdom or Nation, that did the wrong, whereof they were Subjects.

But upon the Petition of the Merchants, Staplers, and others to the Parliament, in the 27th. of Edw. 3. c. 17. The force of those Writs were taken away, and it was ordained and Enacted by the same Parliament, That all Persons Spoyled at Sea, shall have the Law of Marque, without fraud or deceipt, that is of taking the value of the Loss and Damage again.

Bracton Says, Quod nihil aliud potest Rex in terris cum sit Minister Dei, & Vicarius; quam solum quod de jure potest. Every Man hath a Right to Justice; and every Subject of England having a Fundamental property in his Goods, and a Fundamental liberty of his Person. It is repugnant to the Laws of God, Religion and Property, to take away our Goods (for reason of State) without price or satisfaction: he is not a Subject, but a Slave that suffers his Substance to be taken from him against his Will Infinite are the Arguments that may be used, and deduced from the Law of Reason and Natural Justice, in the vindication of this Patent: However, its neccessary to answer the Lord Chancellour Gradatim to his Arguments, aforesaid,

His Lordship was pleased to say, That the Chancery had an Admiral Iurisdiction, by the Statute 31. Hen. 6. cap. 4. for the speedy relief of Strangers Robbed at Sea, by the Kings Subjects.

His Lordship would here beg the question, and have all Mankind to take it for granted, That those who Act under this His Majesties Royal Charter and Authority, are Robbers and Theeves: Notwithstanding the express words in the Patent, That it shall be lawful for them to recover the said Debt and Damages, although a Peace for General Reprizals (concerning the Dominion of the Sea) should be concluded.

Its true, the said Statute of Hen 6. provides a remedy for those that have safe Conduct, and are Robbed by the Kings Subjects. The Lord Chancellour calling to him, any of the Judges of either Bench, who upon Bill of Complaint, shall cause Restitution to be made of Ships and Goods to the parties grieved. This Statute may be still in Force, but not practicable, since the Odious and Arbitrary power of the Admiralty Court was taken away by the Statute of Hen. 8. in the 28th. year of his Reign, for Tryal of Piracy by Jurors, according to the course of the Common Law. However the Statute of Hen. 6. recited by his Lordship, comes not to this case upon the Scire Facias.

But its enacted and ordained, by the Statute made in the 20th. year of Hen. 6. cap. 1: And several other Statutes of this Realm: That all Letters of safe Conduct, Treaties and Leagues of Amity and Alliance, shall be Inrolled of Record in Chancery, or else not to be of any Force or Effect in the Law.

And the Treaty at Breda being not Inrolled, or made any matter of Record in Chancery, whereby the Kings Subjects might have recourse thereunto; cannot any ways affect this grant to Turnor and Carew: And many proper Officers have lost their Heads in former ages, for their miscarriages; not inrolling in due time such publick Treaties, Leagues and Alliances.

Its also true as the Lord Chancellour observes, the Letters Patents to Turnor and Carew, were granted in time of War, (for an injury done to private Persons in time of peace,) but provided that no Subsequent peace should affect it, without a recovery or satisfaction to be made for the Debt and Damages: either by force of the Grant, or Composition made with the Persons interessed. The Fiat passed in the month of May 1665. But the proceedings that brought it to that conclusion, continued de die in diem, ever since the Treaty of Alliance, made in the year 1662. Wherein it was concluded and agreed, That the said Debt and Damages so assertained and Liquidated should be satisfied and repayed.

Yet admitting this Treaty at Breda concluded upon the surprize of Chattam, had been duly Inrolled, and made a matter of Record in Chancery: It was afterwards cancelled, disanulled, and openly extinguished by Proclamation, in the year 1672. And particularly signified to His Majesty by a report, upon a reference to five Lords of the Council Table, concerning the Debt and Damages mentioned in the Letters Patents aforesaid; In these words, That the States General having wholly cancelled all past Treaties and Agreements, and left your Majesty and your Subjects as free in all iustice and Equity, as if they never had been made: We therefore humbly presume to report our Opinions to your Majesty, that it is now but just and seasonable for your Majesty, to insist upon reparation for the Debt and Damages aforesaid: This reference was made to the Lord Arlington, Lord Ashley, Sir Thomas Clifford, Sir Iohn Trevor, and Sir Iohn Duncomb, by Order of Council 22. of March 1671. Now whether a Treaty never Inrolled, and afterwards Cancelled by Order of Council, and Proclamation should be properly insisted upon, in any Judicial Writs, is fit for another Court of Judicature, or Parliament to resolve.

It's granted, that after a peace concluded, all Temporary Letters of Marque having a bare Authority in themselves, are for reasons of State totally Extinguished, in regard those Letters of Marque had not an Authority coupled with an Interest.

A general Letter of Marque or Reprizal, as before it's said, is an Act of War; A particular or Especial one is a process at Law, which is our case.

Letters of safe conduct, usually granted to Foreign Ambassadors, and other Persons: Upon Emergent occasions are in the nature of a Supersedeas to any Commander (that hath a Commission or general Letter of Marque) or Privateer, so properly called as before; nor shall they be interrupted by any Person that hath a speciall Commission grounded upon the Law of Marque; and this is consonant to reason of State, and the Law of Nations.

And it is not denyed but that a Truce between Enemies supersedes all Temporary Letters of Marque, being Acts of War, but not special Letters of Marque or Reprisals which take their rise from Spoyls & Depredations committed in times of Peace upon particular men or Companies, that becomes a personal injury. And the reason is plain, for that the Law of Marque and Grants thereupon, are consistent with times of Peace, and the strictest Amity and Alliance, between Sovereign Princes and States. Captions thereupon being in the nature of Seizures in a hundred for a Robbery upon a private person before Sun-set, which comes to a common Average to prevent a failer of Justice.

It's observed that Sovereign Princes holds the Scepter in one hand and the Globe in the other. The Sword is carried before them by some Chief Minister of State, to shew that Justice is to be duely Administred by Officers that are accomptable for their miscarriages; By the Law of England, the King can do no wrong. He is obliged by Oath to protect His Subjects in their Rights, Properties and Estates; Therefore His Ministers cannot take them away.

Yet no man of sence will denie, but that the King for a publick good may by due means and ways make void even the Letters Patents, in this case of Reprisal, that is to say (as it's observed before) with Money in the right hand of a Lord Treasurer, Dutch Embassador, or Lord Chancellor, and the Scire-facias in the left hand, for the Grantees to shew cause (the Money being payed) why they should not bring the Letters Patents into Court to be Cancel'd.

Treaties of State if they be repugnant to the Law of God, the Law of Reason, or the Laws and Statutes of England (ipso Facto,) they are void in themselves; The third Article of the pretended Treaty at Breda, concluded in the year 1667. after the Surprize at Chatham, says that all Offences, Injuries, Damages and Losses sustained on either side by the King or the States, or their Subjects during this War, or at any time before upon any cause or pretence whatsoever, should be totally expunged and buried in Oblivion, and all Actions at Law concerning the same.

Now if any forced Interpretation should be put upon this Article, (so generally Penned) that all private differences of meum & tuum, between particular persons of either Nation should be comprehended in this Article, it's void, because its not in the Power or Prerogative of any Prince to hinder the due course of Law for a particular debt or personal injury. Admit that a Hollander were indebted to an English-man before the Treaty at Breda for goods Sold or sent to make Sale of, and the Dutch-man should plead specially the Treaty at Breda; in Bar to an Action brought for the Money, it would not hold good in Law; for that it cannot be any ways intended that particular Debts and Actions should fall under the considerations of such Offences, Injuries, Losses and Damages mentioned in that Article which generally relates to Kings and States.

As for Mr. Carew, his Plea to the Scire Facias, and Affidavit annexed, speaks sufficiently for his Justification: Persisting, That no restitution is made for the 151612 l. or any part thereof; although Sir James Butler and others are ravishing his Estate from him, upon Fore-closures of Equity, even for Moneys lent upon account of prosecuting this Cause.

There was never such a president since the Creation, that a particular Interest and Property so Liquidated and Established for satisfaction and reparation (under those circumstances) according to the Laws and Statutes of this Realm; wherein so many Families are concerned, as the Creditors of Sir William Courten and his Son, Sir Paul Pynder and Sir Edward Littleton should be so slighted and contemned

The Lord Chancellor well observed it concerned the publique, it's very true it concerns the publick Honour and Interest, the publick Justice and Equity of the Nation, that the Debt and Damages should be satisfied and repayed.

There is no Reason of State that particular persons should Purchase a publick Peace at their own Charge, or that a private Interest should be Sacrificed for the publick good, without satisfaction out of the Publick Purse.

The Parliament of Paris, or Monpilier, cannot give Laws to the Parliament of England, that enacted if any man should be spoiled by French or others at Sea, in peaceable times they shall have the right and benefit of the Law of Marque or Reprizals, to recover their Loss, Damages and incident Charges; which by consent of Nations being once ascertained by a Judicial Act, must have its Extent, and Execution the end of the Law (Satisfaction.)

And this being agreeable to the Laws of God, the Laws of Nature, the positive Laws of Nations, and the Laws and Statutes of England, and the King having by His Letters Patents, under the Great Seal of England, pursuant thereunto, commanded and required all Judges of the Admiralty and Officers there for the time being, to be Aiding and Assisting to Turnor and Carew, their Executors Administrators and Assigns, and to take care that all things shall be favourably interpreted, and construed in all respects, to the benefit and best Advantage of the said Turnor and Carew, their Executors, Administrators and Assigns; Witness himself at Westminster, the Letters were made Patents the 19th. day of May, in the 17th. year of his Reign

Now how the Actions and Proceedings of several Ministers and Officers of the Admiralty (and other Mercenary Mortals) do quadrare with the Kings Honour and Iustice, (that have Issued out Warrants in the Kings name, to apprehend and seize the Persons and Goods of his Majesties Subjects; detain them in Prison and Irons until they were Tryed, as Fellons and Pyrats, for duly acting under his Majesties Royal Commission and Charter; grounded upon the Laws and Statutes of England; Whereby they were found innocent and accquitted. Yet afterwars detained for Exhorbitant and Extrajudicial Fees of Registers and Marshalls of the Admiralty) is left to any Mankind to Iudge.

Conclusion.

THe Commons of England in Parliament in the Preamble of their Acts, acknowledging their thankefullness to His Majesty, for His aboundant care in their preservation at Sea, and the great charge necessary for the defence thereof, granted to the King at several times, during the two last short Wars between England and Holland, the Sum of Five Millions Four Hundred and Forty Thousand Seven hundred and Fifty Pounds, Eleven Shillings and Eight Pence Sterling Money; For extraordinary supplies toward the said Wars (whereof His Royall Highness the Duke of York received 120902 l. 15 s. 8 d. being one Months Tax, as a present for his Heroick Courage at Sea.) This vast Expence of Treasure, occasiond by the Hollanders, gave hopes to the Kingdom for greater returnes, than that only Debt of 151612 l. Liquidated and assertained for satisfaction.

That reason of State was depraved in the Lord Treasurer Danby, who parted with 600000 Pattacons (the price of so much English Bloud and Treasure) out of England to the Prince of Orange, that reaped the benefit of his Ancesters Offices and Honours by the last War, besides his tributes (as Lord High Admiral of the seven Provinces) out of 1500 Ships and their Ladings, taken from the English by the Dutch Capers, (having his general Letters of Marque,) during that War.

There was no necessity therefore for those great Ministers, H. Finch, C. S. Latimer, Ormond, Arlington, H. Coventry, and Marquess del Fresno, to suffer the Debt of 151612. and Damages to remain incumbent upon the King or the States, when treble the value of that Debt was offered to the English Ambassadors in the year 1673. at Cologne, besides another Sum of Money in gross for the Fishries upon the English Coasts, to purchase a seperate peace with England. Divers Polliticians remarking the English Administrations of State and Justice, Blushed for several miscariages in our later days; Wherein the due course of Law hath been Obstructed, Strangers and others suffered to eat our Bread, and have disgested the very Bloud of many hundred Orphants and Widows: Some by Imbeaziling the spoyls of Wars, others in detaining our Monies and Goods; All men in Office turning deaf Ears to our Complaints; forgeting the Kings Honour; and that Justice which Establisheth the Thorne, and Exalts the Nation, being unmindful of those very periods, in his Majesties Speech to both Houses of Parliament, on the 24th of Novemb. 1664. as follows,

Mr. SPEAKER,

ANd you Gentlemen of the House of Commons, I know not whether it be worth My pains, to endeavour to remove a vile Iealousie, which some ill Men scatter abroad, and which I am sure will never sinck into the breast of any Man who is worthy to sit upon your Benches; That when you have given me a Noble and proportionable Supply, for the Support of a War, I may be induced by some evil Councelors, (for they will be thought to think very respectively of my own Person,) to make a suddain Peace, and get all that Money for my own private occasion.

But let me tell you, and you may be most confident of it, that when I am compelled to enter into a War, for the Protection, Honour, and Benefit of my Subjects; I will (God Willing) not make a Peace, but upon the obtaining and securing those ends, for which the War is entred into; and when that can be done, no good Man will be sorry for the determination of it.

How far the Plea and the Judgement given upon the Demurrer, concerning the 151612 l. will be reconciled to the Kings Speech, or the Law of the Land is left to those Members of both Houses that heard it, to resolve if any man can be safe in his Rights and Properties, under such presidents as these, which calls to my mind the Old Addage of Sir Fulke Grevil, Lord Brook in his time. —Mankind is both the Form And matter wherewith all Tyranies transform; For Kings can neither see, act nor devise, Without the Peoples Hands, Hearts and Eyes: And were not man by himself opprest, Kings would not, Tyrants could not, make him Beast.

FINIS.