DE Jure Maritimo ET NAVALI: OR, A TREATISE OF Affaires Maritime, And of Commerce.

In Three Books.

LONDON, Printed for John Bellinger in Clifford's Inne Lane against the West Doore of St. Dunstan's Church; And George Dawes in Chancery Lane against Lincolns-Inne Gate; And Robert Boulter at the Turk's Head in Cornhill. 1676.

THE Wisdome of God is highly to be admired, who hath not endowed the other living Creatures with that Soveraigne Perfection of Wisdome, but hath secured and provided for them by natural Muniments from assault and peril and other necessities; But to Man, he formed him naked and frail, because of furnishing him with Wisdome, Understand­ing, Memory and Sence to govern his Actions, endowing him with that pious affection of desi­ring Society, whereby one is inclined to defend, love, cherish and afford mutual ayd to each other: Nor hath he in no less a wonderful man­ner (Infinitely Transcending all humane wisdom Lactantius, lib. 9. and understanding) created the material world to be subservient to his Being and Well-being: Yet, without humane Understanding and Rea­son did he not build a Ship, raise a Fort, make Bread or Cloth, but these came to pass onely by humane Arts and Industry, in which by the Revolutions of the Coelestial Bodies, Times and Seasons, materials and other necessaries are brought forth, by the alteration of which, men in their proper seasons reap the fruits of their Labour; so that there is no Society, Seneca 4. de Benesicijs, Cap. 18. Nation, Countrey or Kingdom but stands in need of an­other: hence it is that men knowing each others necessities, are invited to Traffique and Commerce in the different parts and emensities of this vast World to supply each others necessities, and adorn the conveniences of humane life.

And as God hath so ordered this wonderful dependance of his Creatures on each other, so [Page] hath he by a Law Immutable provided a Rule for Men in all their actions, obliging each other to the performance of that which is right not onely to Justice, Leg. ut vim D. de just. & jur. n. 7. & 8. but likewise to all other Mo­ral Virtues; the which is no more but the dictate of right Reason founded in the Soul of Man, shewing the necessity to be in some act by its convenience and disconvenience in the rational na­ture in Man, and consequently that it is either forbidden or commanded by the Author of Na­ture, which is the Eternal Creator of all things: And as God hath imprinted this Universal Law in the minds of all Men, so hath he given Men power (Society being admitted) to establish other Lawes which proceeds from the will, the which is drawn from the Civil power, that is, from him or them that Rule the Commonwealth or So­ciety of Freemen united for their common be­nefit, (which is called the Lawes of Nations) and which by the will of all or many Nations, hath received force to oblige, and is Vasquez. 2. Controv. 54. 4. proved by a continued use and testimony of Authentique Memorials of Learned or Skilful Men.

Now by the Lawes of Nature every Man is bound to profit another in what he can, Florentius 3. p. tit. 22. Sect. 5. Leg. Servus. D. de Serv. export. nor is the same onely Lawful but Commendable; so true was that saying, Nothing is more serviceable to man then man: Cicero offic. lib. 11. ex pa­netio. But if Man shall neglect this immutable Law in the ayding and assisting his fellow Citizen, and enquire and dispute why God had laid this necessity upon him; And when Opportunity gives leave to take the bene­fit of Wind or Tyde, (in order to his furnishing himself or Neighbour with those things that adorn humane life) to dispute the Causes of their flux and reflux, and how they vary and change, He not only offends the Laws of Nature, but as­sumes [Page] a power of destroying Society, and con­sequently becomes (at the least) a wilful trans­gressor of the Lawes of Nations.

And though the Eternal Power hath so Esta­blished this necessity in Mankind, that every man should stand in need of another man, yet so great a Providence is over Industrious men, that scarce any man not disabled by Nature or Accident, Sickness, Impotenoy and the like, but by his In­dustry and pains may earn more than would supply his necessities; and so much as any man gets by being truly Industrious above what sup­plyes his necessities, is so much beneficial to him­self and Family, as also an enriching to that King­dome or State where he resides: from hence it is, that all Mankind (present or to come) are ei­ther Traders by themselves or others; and the ends designed by Trade and Commerce, are Strength, Wealth and Imployment for all sorts of people, (where the same doth most flourish) the end Coke 2. In [...]. fo. 28. tending to the advancement, Oppulan­cy and greatness of such a Kingdom or State.

Constantinople (the Throne once of Christen­dome) Anno 1453. Vide Knowls History of that Monarchy. having been Sack't by Mahomet the Se­cond, became a place of desolation as well as horror, yet he by granting a free Trade and Re­ligion soon after repeopled that great (but un­happy) Spott. Nor did Silemus tread amiss in following the steps of his Victorious Prede­cessor, when having the like success on Tauris and Grand Cairo, he translated the Persian and Egyptian Artificers and Traders to that repeo­pled City, following the Example of the Roman Virtues. Nor did our Victorious Third Edward Mirror, Cap. 5. Sect. 2. 11 Ed. 3. Cap. 3. deem it an Act unbeseeming his great Wisdome, when he brought in the Walloons, whose Indu­stry soon Established the Woollen Manufacture, [Page] he not deigning to give no less a security for the enjoying their then granted Immunities and Priviledges, then his own Royal Person. Nor did that politick Princess Vide Camb­den's Q. Eliza­beth. shut her Ears from em­bracing the Offer of those distressed Burgundians (after the Example of her Great and Royal Pre­decessor) who sought refuge in her Dominions from the ridged severity of the long Bearded Alva, who planting themselves by her appoint­ment at Norwich, Colchester, Canterbury, and other Towns, have of those places (then only habitati­ons for Beggars) raised them now in competition with (if not excelling) all, or most of the Cities in England, for Riches, Plenty and Trade. Nor need we run into the History of earlier Times to give an account of the many Kingdomes and States that have risen by Industry and Com­merce; 'tis enough if we cast our Eyes on our Neighbour the Hollander, a place by relation of Ortelius, not much bigger then Yorkshire, and such a Spott, as if God had reserved it as a place onely to digg Turf out of, for the accommodate­ing those Countries wherein he hoards up the miseries of Winter, it affording Naturally not any one Commodity of use, yet by Commerce and Trade (the Daughters of Industry) it is now become the Store-House of all those Merchandi­zes that may be Collected from the rising to the setting of the Sun, and gives those People a name as Large and High as the greatest Monarch this day on Earth: Nor need we pass out of Christen­dome to find Examples of the like, when Venice, Genoa, Lubeck, Embden, and the rest of the Han­siatique Towns (once the Marts of the World, till Sloth, Luxury and Ambition got within their Walls, and drove it to Ports of Industry) that have since kist and embrac't it, the which this [Page] 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 Anno 1666.1672.1673. 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; Cambden. And although long and difficult it was before that Mighty People could be brought over to have thoughts of the advantages arising from Qu [...]stus Omnis indecorus patri­bus, sayes livy, Lib. 1. Dec. 3. 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 Though they had 100 Ro­strated Sh [...]s, and 75 Gallies under Caius Duillus and his Collegue, [...] polybius ob­serves. 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 [Page] 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 [Page] 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 Cambden Strabo lib. 3. 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 Gaules Town near Yarmouth the Mart for those Neigh­bouring Mar­chants. 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, [Page] 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, Abrabamus Whelochus de priscis. Anglo­rum legibus, written origi­nally by Mr. Lambard. 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, Inserted in leges Edvardi, and afterwards confirmed by the Norman Conqueror. 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 Mr. Selden's Mare Clausum, lib. 2. Cap. the 10th to the 16. 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 [...]t tetra in qua Matthew Westm. Anno 1035. [...]o. 409. Selden Mare Clausum, lib. 2. Cap. 11. seneo est [...]c.) Egbert, Althred, Ethelfred, forget the assertion of their great Predecessors Domi­nion and Soveraignty of the same under no lower a stile then S [...]pream Lords of Gover­nours of the D [...]ean, surrounding the Brittish Shoare, never so much as contested by any Nation whatsoever, unless by those that at­tempted [Page] 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 Coke 4. In [...]t. fo. 142. 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 Inter Leges Marinas sub fine anno Regni Regis Johan­nis 2. 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 [Page] 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, Cic. ad Artic. l. 10. Ep. 7. 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 Born in En­gland, but re­sident at Ge­noa. 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 [Page] 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 Campanella Histor. Hispan: 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.

[Page] 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, Tempore Eliz. Regina Angl. 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 [Page] 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 wanting in thoughts to promote and incite the Profes­sors of the Law, raising and stirring up their Genius to the advancement of the Law in this point; and though I believe many have wish't that such a thing might be, yet none that I can find have ever yet attempted the same: nor is it possible, unless those things which are by Law constituted and known, be rightly separa­ted from those that are natural; for natural Law is immutable and alwayes the same, there­fore may easily be collected into Art. But things that come from Constitution, because they often vary and change, and are divers in divers places, are put without art, as other pre­cepts of Laws positive or municipal; hence it was that the Constitutions and Laws of Rhodes for their Justice and Equity got footing amongst the Romans as well as amongst other the bor­dering [Page] People on the Mediterranean, Rhodio­rum us (que) rerum memoriam disciplinae Navalis et Manil. pro Ora­tat Lege. gloria remansit; yet when they as well as the Romans became subject to fate, they then re­mained onely as Examples of Justice and Rea­son for others to imitate and fol­low: An obsequious Adorer of And Mr. Serjeant Calis must be so understood of the an­cient Civil and Modern Ro­man Law reduced into one, and they are not now two Lawes, one Civil, and the other Imperial, but onely one, that is, the Imperial. Vide his Reading on the Statute of Sewers, Sect. 1. fo. 31. which was the great Justinian, who caused them to be inserted into the Civil Law; and though they ob­tained a place amongst others of the Ancient Romans as well as the Mo­dern, yet have they not all received by custome a force as may make them Laws, but remain onely as they have the Authority in shew of reason, which binds not always alike, but varies ac­cording to circumstance of time, place, state, age, and what other conveniences or inconvenience meets with it; The Articles of Enquiry an­nexed to them in 12 Ed. 3. The Inquisition at Quinbo­rough, 49 E. 3. Anno 1375. Statutes of Enquiry transla­ted by Roughton. nor have those Laws instituted at Oleron obtained any other or grea­ter force then those of Rhodes or Imperial, considered onely from the reason the which are not become Lawes by any particular Custome or Constitution, but onely esteemed and valued by the reasons found in them and applyed to the case emergent.

Tis true, That in Rome and some other parts of Italy and Germany, and the Kingdom of Por­tugal, in all those cases wherein the municipal Ordinances of those Countries have failed in providing, the Imperial Laws (if the case be such as that it non Tragua peccado, or be not spiritual,) is there made of force; but there is no other Nation, State or Republique can be named [Page] where any part of the body of those Imperial Lawes hath obtained the just force of a Law, otherwise then as Custome hath particularly induced it; and where no such settled Custom hath made it a Law, there it hath force onely according to the strength of reason and circum­stance joyned with it, or as it shews the Opi­nion and Judgment of them that made it, but not at all as if it had any commanding power of obedience, that is valet pro ratione non pro inducto jure pro ratione quantum Reges Dinastae et Republicae intra potestatis suae fynes valere patiun­tur; And for Spain it is observed, Hispani Du­plex Selden tit. of Honour, lib. ult. Cap. ult. habent Jus solum Canonicum scilicet et Re­gium Civile enim (meaning the Imperial Lawes) non habet vim Leges sed rationes. And since this Kingdom as well as most others being free from all subjection to the Empire, having con­stituted or known Laws of their own, exclude all Imperial power and Law, otherwise then as Custome hath variously made some admission, I applyed my self to the Collection of such matters, according to my inconsiderable Judg­ment, as are either constituted by the Supream Authority of the Three Estates, or that which hath in some measure obtained by continued Custome the force of Law in reference to mat­ters Maritime and of Commerce as well in cases publique as private.

By the first part of which I thought it ne­cessary, since Nature by Traffique hath made us all Kinsmen, to consider and examine upon what Grounds and in what manner Commerce was first procured and established, which is by the Lawes of Leagues, Embassies and the like, which is a thing fit to be known; so likewise of what may interrupt the same, and likewise [Page] of those perpetual Rights that are between those that have any reference to Sea-faring cau­ses in matters Civil.

In the prosecution of this Work, I have taken care to refer those things which pertain to the Lawes of Nature unto Notions so certain, that no man without offering of violence to him­self may deny them; and to ascertain the truth of such, I have used the Testimonies of such authority (as in my weak Judgment are of Credit to evince the same) and as to that Law which we call the Law of Will or Common consent or the Law of Nations, for that which cannot by sure consequence be deduced out of sure principals, and yet appears every where observed, must needs have its rise from free will and consent, which is that which is called the Law of Nations; both which (as much as possible) hath been endeavoured to be kept asunder where the matter hath required it. And for the Civil Law, I have ascertained the several Authorities which I have made use of, that is of the Romans, into three sorts, the Pandects, the Code of Theodosius and Justinian, the Novel Constitutions, and these most excel­lent Juris consults that have by their profound­ness of Judgment illustrated the obscure paths of the same Law; the third those most excel­lent persons who joyned Policy to Law, as Grotius, Raleigh, Selden, and the like. Of other Pieces that of Shardius, entituled Leges Navales Rhodiorum et selectae Rhodiorum, Petrus Pekius the Zealander, Locinius, Vinius, that of Oleron Collect­ed by Garasias alias Ferrand, and Cleriack.

As to those matters that have passed the Pikes at the Common Law, I have as carefully as possible referred to their several Authori­ties. [Page] In the whole Work I have no where meddled with the Admiralty or its Jurisdiction, knowing well that it would have been imper­tinent and sawey in me to enter into the debate of Imperium merum, Impe­rium It is called Imperium, [...] cause it proceeds fro [...] [...] authority of the [...] and not from any [...] inherent in the party▪ Leg. 1. §. de Const! Princ [...] Coke lib. 106 fo. 73. [...] Case del Marshalsea! mixtum Jurisdictio simplex, and the like, and of the bounding out of Jurisdictions, which in effect tends to question the Government, and tripp up the Power that gives Lawes and Protection to us, since all that can be said as well on the one side as the other, hath been so fully and Learnedly handled and Trea­ted of by several Worthy Persons, (that have indeed said all that can be said) but more espe­cially in that Famous Dispute not long since before His Sacred Majesty in Council, where all the most Elaborate and Ingenious Reasons that could be drawn by the Skill of a Learned Civilian, were there asserted in vindicating the Admiralties Jurisdiction, by the Judge of the same, Sir Lionel Jenkins, in answer of whom was produced that Great Good Man the Lord Chief Justice Hale, who as well by Law positive as other his great Reasons, soon put a period to that Question, and layd that asleep which du­ring his dayes it may modestly be presumed will hardly (if ever) be awakened.

He that hath never so little to do with the Compass though he sits still in his place, does as much or more than all the other necessary noise in the Ship; the comparison is quit of Arrogance, for it holdeth in the design, it is not meant of the performance.

And though I well know, That those that spend their time in brewing of Books are by [Page] Seneca compared to petty Painters, that busie themselves in Copying out Originals, having this half Verse of Horace often thrown in their Teeth,

—O imitatores, Servum pecus!

Yet I have this hope left, That my faults and flawes like those found in the Cutts of Diamonds, may at this time the easilier escape under the excellency of their Subject, or at least under that of your Charity.

The Contents of the First Book.
  • Chap. Fol.
  • 1. OF Dominion and Property in general, and of the causes changing the same by Ships of Warr. 1
  • 2. Of Letters of Marque and Reprizal. 14
  • 3. Of Privateers or Capers. 25
  • 4. Of Pyracy. 33
  • 5. The Right of the Flagg as to acknowledging the Dominion of the British Seas. 46
  • 6. Of the Right of Pressing or Seizing of Ships or Marriners for Service publique. 62
  • 7. Of Dominion Established by Treaties of Alliance Equal. 70
  • 8. Of Alliances unequal, and of Protection. 83
  • 9. Of Treaties of Truce and Neutrality. 89
  • 10. Of the Immunities and Priviledges of Ambassadours and other Publique Ministers of State. 93
  • 11. Of the Right of delivering of Persons fled for Protection. 107
  • 12. Of Contribution paid by Places Neuter, to both Armies in Warr. 114
  • 13. Of the Naval Military part. 121
  • 14. Of Salutation by Ships publique and private. 147
The Contents of the Second Book.
  • 1. OF the various Rights and Obligations of Owners and Partners of Ships in cases private. 191
  • 2. Masters of Ships their Actions considered in reference to cases private and publique. 196
  • 3. Of Marriners their several Offices and Immunities, and of Barratry committed by them. 207
  • 4. Of Freight, Charter-parties and Demorage. 217
  • 5. Of Wreck. 226
  • [Page] Chap. Fol.
  • 6. Of Averidges and Contributions. 232
  • 7. Of Pollicies of Assurance. 239
  • 8. Of Prisage and Butlerage. 250
  • 9. Of Pylots, Wharfage, Primage, Averidge, and Loadmanage. 254
  • 10. Of Bills of Exchange. 258
  • 11. Of Moneys advanced by way of Bottomery, or Foenus Nauticum. 276
  • 12. Of Impositions called Great Customes, Petty Customes, and Subsidies. 288
  • 13. Of Impositions subsequent Conditional temporary, &c. 313
  • 14. Of Scavage, Package, Porterage, Ports, Members, Creeks, the Port of London, and places lawful to lade and unlade 319
  • 15. Provisions and Allowances made notwithstanding the seve­ral Clauses in the Acts for the Customes. 332
  • 16. Of the Right of Passage, of Imposing on the Persons and Strangers for Passage thorow the Seas. 344
The Contents of the Third Book.
  • 1. OF Freedome, Bondage, Slavery, Exile and Abjura­tion. 385
  • 2. Of Aliens as in reference to their Estates Real and Per­sonal. 395
  • 3. Of Naturalization and Denization. 405
  • 4. Of Aliens and Tryal per medietatem, where allowed, and where not. 414
  • 5. Of Planters. 421
  • 6. Of Merchants. 429
  • 7. Of Factors. 439
  • 8. Of the Lawes of Nature, and of Nations. 448

CHAP. I. Of Dominion and Property in generall, and of the causes changing the same by Ships of War.

  • I. Of Dominion in the primitive state of Man.
  • II. That such a Dominion universal might have continued.
  • III. Of the causes or change of the same into Dominion peculiar, or Property.
  • IV. Of things excepted tacitly by the Law of Dominion.
  • V. Of Property where the same may be changed against the owner.
  • VI. Of War, when accounted by the Laws of England.
  • VII. Of Forraign War, and of things justly acquired therein, whether Ships or Merchandize.
  • VIII. Of Restitution, where the same by Law may be made of Ships or Merchandize acquired in War.
  • IX. Of Restitution ex gratia, made by the Souveraign, of him whose Ships are lost, and regain'd after­wards in Battle by Ships of War; and of the like by Princes or Re­publiques in amity.
  • X. Of the Assaulting an Enemy in the Ports or Havens of a Nation Neuter, whether lawful by the Laws of Nations.
  • XI. Of Protection given to the Ships of the Enemies being in Port be­fore, & remaining after War de­nonnc't.
  • XII. Of the Goods of Friends found in the Ships of Enemies, and of those of Enemies found aboard the Ships of Friends.
  • XIII. Of the destroying of the Ships of Enemies in general.
  • XIV. Of interpellation and denun­ciation, whether necessary. XV. Of the Goods of Friends that supplyeth an Enemy, whether ca­pable of being made prize.

I. NO sooner had the Eternal Power created Man, but he bestowed on him a right over the things of this infe­riour Nature; nor was his goodness lessened upon the reparation of the World, after the Flood, (all things being then undivided and common to Justin. lib. 43. all, as if all had one Patrimony) since every Man might then take to his use what he pleased, and make consumption of what he thought good in his own eyes; which use of the universal right was then instead of A Theater is common, yet the place pos­sessed by any one, may be rightly called his own. Property, for what any one had so taken, another could not without injury take away from him.

II. Nor was it impossible for that state to have conti­nued, if Men through great simplicity, or mutual charity had [Page 2] lived together, and this is instant in those Americans, who through many Ages have lived in that community and cu­stom, and the other of Charity, which the Essens of old practised, and then the Christians, who were first at Hieru­salem, and at this day not a few that lead an assetick life; the simplicity of our first Parents was demonstrated by their nakedness, there being in them rather an ignorance of vice, then a knowledge of Virtue, their only business being Justin. lib. 2. ut de Scythis loquitur Tro­gus. the Worship of God, living easily on those things, which the Earth of her own accord brought forth without labour.

III. Yet in this simple and innocent way of life, all Primum inter Homines mali nescia, & ad­huc astutiae in­experta simpli­citas. Men persisted not, but some apply'd their minds to va­rious Arts; the most antient of which was Agriculture and Pasture, appearing in the first Brothers, not without some distribution of Estates, and then from the diversity of each Man's actions, arose Emulation, and then slaughter!; and at length, when the Good were infected with the bad, a Gigantick kind of life, that is violent; but the World be­ing washed by the Flood, instead of that fierce life, succeed­ed Seneca Natu­ralium 3. in fine. the desire of Pleasure, whereunto Wine was subservient; and thence arose unlawful Loves, but by that more generous vice Ambition, Concord was chiefly broken, after which Men parted asunder, and severally possess'd several parts of the Earth; yet afterwards, there remain'd amongst Neigh­bors a communion not of Cattle, but of Pastures, be­cause in the small number of Men, so great was the lati­tude of Land, that without any incommodity it might suffice to the uses of many, untill the number of Men, so of Cattle increased, Lands every where began to be Ne insignare quidem aut partire limite camp. fas erat. divided, not among Nations as before, but among Fami­lies; an instance of which we have hourly before our eyes in those vast immensities that are daily appropriating and a planting in America, from hence we learn what was the cause for which Men departed from the Primitive com­munion of things, first of movables, and then of immovables also; to wit, because when not content to feed upon that which of it self, and the Earth singly brought forth, to dwell in Caves, to go naked, [...]or clad with rinds of trees, or skins of Beasts; they had chosen a more exquisite kind of life, there was need of Industry, and using of Art in those matters, which they should give themselves up to; so like­wise from hence we learn, that Men not content to live in [Page 3] that innocent state of community, how things went into Property, not only by theact of the mind (for they could not know the thoughts of one another, what every one would have to be his own, that they might abstain from Grotius de Mari libero cap 15. it, and many might desire the same thing) but by a certain Copenant, either express as by division, or tacit as by oc­cupation; for so soon as Communion did not please them, and division was not made, it ought to be supposed an agreement amongst all, that every one should have proper to him self what he seized on, Cic. Offis. [...]. Addendum il­lud Quintilia­ni; Si haec con­ditio est, ut quicquid in u­sum hominis cessit, proprium sit habentis, profecto quic­quid jure possi­detur, injuri [...] aufertur. Ma [...] erobius Saturn. lib. 3. c. 12. for every one might prefer himself before another, in getting those things useful for the ac­commodating of Humane life, Nature not being repugnant to the same.

IV. And though Property may seem to have swallow'd up all that right which arose from the common State of things, yet that is not so; for in the Law of Dominion, ex­tream necessity seems excepted. Hence it is that in Naviga­tion, if at any time Victuals fail, what every one hath, ought to be brought forth for the common use: and so in a Fire, I may pull down or blow up my Neighbors House, to save mine; destroy the Suburbs, to raise Lines or Forts, Leg. 2. §. cum in eadem D. ad. Leg. Rhodani. Quo non fragm. §. Quod ait. D. incend. Leg. Quemadmodum §. item. D. ad. l. Aquilam. 12, Ed. 3. tit. distress. 170. 11. H. 7. 5. Reniger & Fogassas, Plowden c. 1. to the 10. Coke 3 Inst. sol. 83. to preserve the City thereby; dig in any Mans Grounds for Salt-Peter, cut in pieces the Tackling or Nets upon which my Ship is driven, if it cannot be disintangled by other means, all which are not introduced neither by the Civil Law, nor the Municipal Laws of Countrys, but are ex­pounded by them, with their proper diversities.

V. Nor is Property so far instated in Man, but the same Bald, lib. 3. de rerum diverso­rum, seems to have been of opinion, that by the Laws of Nations one may take Armes to abate the growing power of his Neighbors. Sed ut vim pati posse ad vim inferendam jus tribuat ab omni equitatis ratione abhorret: But that a possibility of suffering force, should give a right of offering of force, this is far from all equity, says the excellent Grotius lib. 2. cap. 1. sest. 27. Sir Walter Raleigh in Hist. of the Word cap. of Duels so. 550. may again be devested by such means as stand with the Law of Nature and Nations; and first by War, the causes of which are assigned to be three, Defence, Recovery and Revenge.

But then such War must be just, and he that undertakes it must be a Soveraign; the just causes to make a War are our Princes, or Countreys defence, and that of our Allies, the satisfaction of our injuries, or theirs; our just preten­tions [Page 4] to an Estate or Right; Divines have added another, not only the defence of Religion, but its advancement and propagation, by the way of Arms, and some the extir­pation and rooting up a contrary. Certainly War is too rough a hand, too bad a means, to plant Piety; Sicut non Martyrem poena, sic nec sortem pugna, sed causa; As it is not the punishment that makes the Martyr, so it is not fight­ing that declares a valiant Man, but fighting in a just cause; in which who so shall resolvedly end his Life valiantly, in respect of the cause, that is, in the defence of his Prince, Religion or Country, ought to be numbred amongst the Mar­tyrs of God.

VI. War by the Laws of England, is accounted when the Courts of Justice are shut up, and the Judges and Ministers of the same cannot by Law protect Men from violence, nor distribute Justice. So when by Invasion, Insurrection, Re­bellions, or such like, the current of Justice is stopt and shut up; Et silent Leges inter arma; then it is said to be time of [...]4 E. 3. tit. Scire facias 122. inter Mor­timer and Th. Earl of Lan­caster. War, and the Tryall of this is by Records and Judges of the Courts of Justice, and not by a Jury: the Kings Standard appearing in the Feild, or at Sea, does likewise de­note a War, and if the Rebells against whom the Kings Host marches, breaks a Prison, the Goaler is not lyable, for they are not such Rebels as are capable of being supprest by the ordinary Ministers of Justice; but the subject matter is now only touching forraign War, or that which is com­menced for Dominion or Right, or for the maintaning of the same in our peaceable possession, according to Justice.

VII. By the Law of Nature in such a War, those things are acquired to us, which are either equall to that, which being due unto us, we cannot otherwise obtain, or else is much a mark as does infer damage to the guilty part, by a fit measure of punishment. And by the Laws of Nations not only he that wageth War on a just cause, but every one in solemn War, and without end and mea­sure is master of all he taketh from the Enemy in that sense, that by all Nations, both himself and they that have title from him, are to be maintained in the possession of such things; which as to external effect we may call Dominion: Cyrus in Xenophon, it is an everlasting Law among Men, that Xenoph. 5. de Iustit. Cyri. the Enemies City being taken, their Goods and Money should be the conquerors; for the Law in that matter is as a common [Page 5] agreement, whereby the things taken in War become the Aristotle 1. Polit. Takers: from the Enemy are judged to be taken away, those things also which are taken away from the subjects of the Enemy, and Goods so taken cannot by the Law of Nations be properly said taken, but when the same are out of all probable hopes of recovery, that is as Pomponius observes, brought within the bounds or guards of the Enemy; Hujus modi res non tam capta quam re­cepta intelligi­tur, per D. per Pomponius & L. Leg. in Bello Parag. Si quis servum in pr. de Capt. & post. for, says he, such is a Person taken in War, whom the Ene­mies have taken out of our, and brought within their guards, for till then he remains a Citizen: and as the Law of Na­tions is the same reason of a Man, so likewise of a thing; and therefore Goods and Merchandize are properly said to be the Captors, when they are carried in [...]ra Praesidia of that Prince or State, by whose Subject the same were taken, or into the Fleet, or into a Haven, or some other place where the Navy of the Enemy rides: for then it is that the reco­very seems to be past all hope.

And with these Laws agrees the Common Law of this Realm, which calls such a taking a Legalis Captio in Jure 2. R. 3. s. 2. 7. R. 2. Tre­spass Statham Pl. 54. Belli, and therefore in 7. R. 2. an action of Trespass was brought for a Ship, and certain Merchandize taken away; the Defendant pleaded that he did take them in le haut Mere o [...] les Normans queu [...] sont Enemies le Roy: and it was adjudged, that the same Plea was good.

In the year 1610, a Merchant had a Ship and Merchan­dize taken by a Spaniard, being an Enemy; a month after M. 8. Jac. in B. R. Brown­low 2. part. Westons C. a Merchant Man, with a Ship called The Little Richard, retakes her from the Spaniard: it was adjudged, that such a possession of the Enemy, divested the Owner of his in­terrest, and the retaking afterwards in Battel, gained the Captors a property.

'Tis true, the Civilians do hold, that it is not every possession that qualifies such a Caption, and makes it become the Captors; but a firm possession (that is) when the prize doth pernoctare with the Enemy, or remain in his possession, by the space of 24 hours; but as this is a new Consulatu Maris c. 283. 287. Constit. Gallicae lib. 20. tit. 13. art. 24. 7. R. 2. Tres­pass Statham pl. 54. Law, so it is conceiv'd to be against the antient as well as the modern practice of the Common Law: for the Party in the an­tient Presidents doth not mention by their Plea, that the prize did pernoctare with the Enemy, and but general, that the same was gain'd by Battle of the Enemy.

But, if such a Recaption is by one of the King of Eng­lands [Page 6] Ships of War, their Restitution has been made, the Party relieved paying his offering to the Admiral, com­monly called Salvage Mony.

VIII. This right of changing of Dominion or Proper­ty, by force of Arms, is so odious, that in the taking of Goods, if by any possibility, the right owners may have re­stitution, the same hath been done: And although a larger time then 24 hours happens, between the capture and recapture, and so may pernoctare with the Captor, yet re­stitution may be made, and therefore if one Enemy takes the Ship and Merchandize of another Enemy, and brings her into the Ports or Havens of a Neuter Nation, the Owners may seize her, and the Admiral of that Neuter Na­tion, may in some cases restore the Ship and Goods to their Owners, and the Persons captive to their former liberty: the reason is for that the same ought to have been brought infra Praesidia Res quae intra Praesidia perdu­ctae nondum sunt, quanquam ab hostil [...]us oc­cupatae Domi­num, non mu­tarunt ex Gen­tium jure. Gro­tius de jure Belli ac Pacis l. 3. c. 9. of that Prince or State, by whose Subject she was taken.

A Dunkirker having seiz'd a Frenchmans Vessel, super al­tum Mare, sold the same with her lading at Weymouth; whe­ther it had been driven before she was brought infra Praesid. Dom. Reg. Hispaniae: the Frenchman coming into Port, then claims the benefit of the Laws of Nations; the King of England being then in amity with both their Princes, and that restitution be made; in which case it was resolved by all the Judges, Trin. 17. Car. 1. in B. R. Mar­she's Reports. that if there be a Caption by Letters of Marque, or by Piracy, and the Vessel and Goods are not brought infra Praesidia of that Prince or State, by whose Subject the same was taken, the same will not divest the Property out of the Owner; with this agrees the Law Ci­vil, For this is not an absolute Property im­mediately ve­sted in the Ca­ptor, upon the taking; but a conditional Property to answer the ori­ginal debt or damage which cannot be done without a Judicial adjudication, the oportunity of which he hath lost by bringing the prize into the Country of another Prince: for as to private War, their Countreys are as an Asyllum per leg. libertas, & de Leg. Jur. and restitution may be made.

IX. But if the Ships of War of Nations in enmity meet at Sea, and there be a caption, if there be that which is called a firm possession, the Neuter Nation cannot re-deli­ver or make restitution of the thing so acquired: and so it Buistrod 3. part. f. 28. ci­ted in Marsh's Case. was adjudged, where Samuel Pellagy with a Ship of War of the Emperor of Morocco, took a Spanish Ship, and brought the same into England, that he could no ways be question'd [Page 7] for the same criminaliter, or restitution to be made civili­ter; The getting of Letters of Reprizal a­gainst a Na­tion, does not make a War between both States; nor can they be said to be at enmity. 22. E. 3. f. 23. for that the King of Spain and the Morocco Emperor were enemies, and the King of England in amity with both, and that such a caption is not called Spoliatio, sed Le­galis captio, in which there can be no restitution made up­on, neither of the Stat. of 31. H. 6. cap. 4. or 27. Ed. 3. cap. 13. for he that will sue to have restitution in England for Goods taken at Sea, must prove that the Soveraign of the party was in amity with the King of England. Se­condly, that he that took the Goods, his Prince was at the time of the taking in amity with the Soveraign of him whose Goods were taken; for if he, which took them, was in enmity with the Soveraign of him whose Goods were taken, then the same will not amount unto a de­predation or robbery, but a lawful taking, as every enemy 2 R. 3. f. 2. might take of another.

A Spanish Merchant, before the King and his Councel, in Camera Scaccarii, brought a Bill against divers English-Men, 7. E. 4. 14. 13. E. 4. 9. 22. E. 3. f. 23. 2. R. 3. f. 2. wherein setting forth, quod depradatus & spoliatus fuit, upon the Sea, juxta partes Britannia per quendam Vi­rum Bellicosum de Britannia, de quadam Navi, and of divers Merchandises therein, which were brought into England, and came into the hands of divers Engish-Men, naming them, and so pray'd process against them, who came in, and pleaded, that in regard this depredation was done by a Stranger, and not by the Subjects of the King of England, 27. E. 3. c. 13. 31. H. 6. c. 4. which gives Restitution by the Chancel­lor, and one Judge, and by the Chancel­lor alone. they ought not to answer: It was there resolv'd, Quod quisquis extraneus, who brings his Bill upon this Statute to have restitution, debet probare quod tempore captionis fuit de amicitia Domini Regis, and also, quod ipse qui eum re­ceperit, & spoliavit, fuit etiam sub obedientia Regis, vel de amicitia Domini Regis, sive Principis quaerentis, quia si fue­rit inimicus, & sic ceperit bona, tunc non fuit spoliatio, nec depredatio, sed legalis captio, prout quilibet inimicus capit super unum & alterum. Hujusmodires non tam capta, quam recepta intelligitur: per D. Leg. Pompo­nius, & per Leg. in Bell [...] Par. si quis s [...] vum in pr. de Cap. & p [...]st.

But, if the King of England is in enemity with the States of Holland, and one of their Ships of War takes a Merchant-Man of the King of Englands, and afterwards another Ship of War of England meets the Dutch-Man and his prize, and in aperto praelio, regaines the prize, there restitution is commonly made, the Owners paying their Salvage: so where the prize is recover'd by a Friend in [Page 8] amity or comes into his Ports, restitution is likewise made; Per Leg. post­liminium, Par. Postliminio. de Capt. & postli. Boyce, and Cole, and Claxton, Hill. 26, & 27. Car. 2. in B. R. but when such Goods become a lawful and just prize to the Captor, then should the Admiral have a tenth part, following the religious example of Abraham, after his Vi­ctory over the five Kings.

X. He that is an Enemy, may every where be assault­ed, according to the Laws of Nations; Enemies may Restitution made formerly by a French-Man, who had regained an English prize out of the hands of a Dutch-Man of War. therefore be attaqu'd or slain on our own ground, on our Enemies, or on the Sea: but to assault, kill, or spoil him in a Haven or Peaceable Port, is not lawful; but that proceeds not from their Persons, but from his right that hath Empire there, for Civil Societies have provided that no force be used in their Countreys against Men, but that of Law, and where that is open, the right of hurt­ing ceaseth: the Carthaginean Fleet was at Anchor in Sy­phax Port, who at that time was at peace with the Ro­mans and Carthagineans, Scipio unawars fell into the same Haven, the Carthaginean Fleet being the stronger, might easily have destroy'd the Romans; but yet they durst not fight them: the like did the Venetian, who hindred the Greeks from assaulting the Turkish Fleet, who ride at Anchor in a Haven, then under the Government of that Republique; so when the Venetian and Turkish Fleet met at Tunis, though that very Port ackowledges the Ottoman Emperor, but in regard they are in the nature of a Free Port to them­selves, and those that come there, they would provide for the Peace of the same, and interdicted any hostile attempt to be there made.

But they of Hamborough, were not so kind to the English, when the Dutch Fleet fell into their Road, where rid at the Anno 1665, 1666. Bell. Angl. cum Batav. same time some English Merchants Men; whom they as­saulted, took, burnt and spoil'd, for which action, and not preserving the Peace of their Port, they wereby the Law of Nations adjudg'd to answer the dammage; and I think have pay'd most, or all of it since. But Enemies in their own Ports, may be assaulted, burnt or destroy'd, by This is Jus belli & in Re­publica maxi­me conservanda sunt Jura belli, Reg. f. 129. Ar­resi. fact. super bonis Meroator Alie [...]ig. the Law of Armes.

XI. If the Ships of any Nation happens to arrive in any of the King of Englands Ports, and afterwards and before their departure, a War breaks out, they may be secured, priviledged without harm of Body or Goods; but under this limitation, till it be known to the King, how that [Page 9] Prince or Republique of those, whose Subjects the Parties Some of old have held [...] Clericus, Agri­cola & Merca­tor tempore bel­li utroque col­lat commutet, pace fruuntur. Co. 2. Inst. f. 58. are, have used and treated those of our Nation in their Ports. But if any should be so bold, as to visit our Ports after a War is begun, they are to be dealt with as Enemies.

XII. By the Laws of Nations, generally all things are the Captors, which he takes from his Enemy, or which his Enemies gain'd from another by force of Arms; so like­wise all those Goods, that he shall find in his Enemies cu­stody: But then it must be apparently manifest, and evi­dently prov'd, that it is really the Enemys; for if an En­glish-Man should have Goods in the custody of a Dutch Factor at Cales, and a War should break out between that Prince and that Republique, yet are not the Goods of the English-Man subject to the seizure of the Spaniard, it being ap­parent, the owner is not a Subject of their Enemies: So likewise if the Goods of Friends are found in the Ships of Consul. Maris. c. 273. Enemies, this does not ipso facto, subject the same to be prize by the Laws of Nations; though it be a violent presumption, and may justly bear a legal examination, till which there may be a securing of the prize, till adjudica­tion shall pass. So on the other hand, if the Ships of Hostis sit ille, & qui intra praesidia ejus sunt: Let him be our Ene­my, and they that are with in his Guards. Liv. lib. 37, & alibi passim. Friends shall be fraighted out to carry the Goods of Ene­mies, this may subject them to be prize, especially if the Goods shall be laden aboard by the consent or privity of the Master or Skipper; though in France they have subjected and involv'd the innocent with the nocent, and making both of them prize: in the late Flemish Wars with England, the Ostenders became obsequious serviceable with their Ships to the Traffick and commerce of both Nations: memora­ble Gregor. lib. 9. Romani nos honestissimus eas atque justissimus credimus possessiones quas Belli Lege captas habemus; neque ver [...] induci possimus ut stulta facilitate deleamus virtute monumenta, si eas illis reddamus, quibus semel perierunt: imo vero talos possessiones, non tantum cum his qui non vivunt ci­vibus nostris communicandis; sed & posteris relinquendas censemus: tantum abest ut par­tu relinquendo in nos ipsos ea constituamus, quae in Hostes constitui solent: Titus Lar­gus his opinion in the Senate of Restitution: VVe Romans believe those possessions to be most honorable and just, which we have taken by the Law of VVar; nor can we be induc'd by a foolish facility to part with the monuments of our Valour, and restore them to those that were not able to keep them; nor do we judge such posses­sions to be communicated only to our Country, Men now living, but to be left to our Posterity: So far are we from relinquishing what we have got, and dealing with our selves, as if we were our own Enemies. De Veij idem in Romulo narrat Pluter­ [...]us. was the action, when the War was between the two Re­publiques, [Page 10] Venice and Genoa, the Grecian Ships being then imploy'd, (as those of Ostend) were search'd, and the Enemies pull'd out, but no other matter done; however, [...] it is most certain let the Commission, or Protection of such Ships be what they will, if Men will venture to trade un­der such a cloak, it behoves them, that the Skipper and his Crew be entirely ignorant; for it is his Action that will go far in the freeing, or making absolute the prize, and Goods so made prize, the property is immediately gone and changed be the Owner be who he will, he never can claim the same; for the Laws of Nations made the Enemies first masters by external Dominion, and then by Conquest, gave the property to the Captor: following that Judgement of the Ro­mans, whatsoever they got of their Enemies by valour, they would transmit, to their Posterity by right.

XIII. 'Tis not against nature, to spoil the Goods of him, whom it is lawful to kill; and by the Laws of Na­tions, it is permitted that the Goods of the Enemies may Hist. 5. be as well spoiled as taken; and Polybius observes that all things of the Enemies may be spoiled, their Ships, Goods, Forts, &c.

XIV. And though it may happen sometimes, that a War may break out, and there may be no public denoun­cing or proclaiming the same; that if a Friend, or Neuter should assist an Enemy with Contraband Goods, that is Armes, &c. whether upon such a caption, the Goods may be made prize; the resolution of which will depend on 3. Eliz. in C. B. Owens Report, fo. 45 but q. of that Case. these Considerations.

First, by Natural Law, where either force offer'd, is repelled, or punishment exacted, of one that hath offended; there needs no denunciation, for Princes are not to stand debating Grotius lib. 3. cap. 3. with words or arguments, being injured beyond words: For War undertaken to resist violence, is proclaim'd not by an Herauld, but by Nature: for it is no more then the invad­ing of one for another, or taking of the Goods of the deb­tor, to answer the creditor damage.

Secondly, Interpellation is introduced by the Laws of Nations, whereby Princes or Republiques, having received injuries, may apparently shew that they had no other way to recover their own, or that which is due to them: for such Interpellation following after injuries committed, con­stitutes that Prince or State in a fault that shall not render satisfaction.

[Page 11] Thirdly; admitting that Interpellation hath gone, and sa­tisfaction hath been required for the dammage, and no sa­tisfactory return hath been made, whether then the Ships or Territories of the Enemy may be assaulted: and for that it has been conceiv'd they may, for denunciation is no more but to signify that the Parties, against whom the same is commenc't, are unjust, and will not do right, and therefore War is begun by the Supream Power: now Princes or Republiques, having done that which by the Law of Nature they were not oblig'd to do, that is after a wrong done, abstain'd from War by Friendly demanding of satisfa­ction or reparation, (which is requir'd only by the Laws of Nations) and publique Justice being deny'd them, there remains no other or further obligation on the State, the same amounting and indeed is an apparent defiance; and Proclamation is no other.

So that if Indiction is not necessary, the caption of such Ships may subject them to be prize, (perhaps the Leagues of the several Countries, may have provided for cases of the like nature.)

XV. And although the Goods of Friends, according to the circumstance of the case, may be preserv'd by adjudica­tion, and restor'd to their owner; yet all manner of Goods have not that priviledge, for though the Freedom of Trade preserves the Goods of Friends against the rigour of War, Vide Treaty 1. Decemb: at London 1674, Art. the third, what is meant by Goods Con­traband, or prohibited Merchandize. yet it does not those Goods that supplies the Enemy for War, as Mony, Victuals, Ships, Armes and other things belonging thereto, for to supply an Enemy that invades our right, or seeks the destruction of our Countries, is a liberality not to be allow'd of, and it certainly stands with necessity, that if I cannot safely defend my self, or endamage my Enemy without intercepting the things sent, it may justly be done: but when such Goods are seized, whether they give the Captor a right of property, or a right by retention, to compel that neuter Nation to give Caution for the future, by Hostages or Pledges, not to supply the Enemy, may be a question. The Romans, who had brought Victuals to the Enemies of Carthage, were taken by the Carthaginians, and again rendred upon request; the Hollanders in the heat of the War between the Sweden and Polland, never suffer'd themselves to be interdicted with either Nation; the same Cambden. vi­de anno 1589, 1595. State when they had War with Spain, they intercepted [Page 12] the French Ships, passing to or for Spain, but restor'd them.

And Pompey, in the History of the Mitridatie War, set Plutarch. a Guard on the Bosphorus, to observe if any Merchant sailed in thither; whosoever did, and was taken, was surely put to death; so Demetrius when he possessed Attica with his Army, having blockt up Athens, hang'd up both the Master and Commander of a Ship, who attempted to bring in Corn: Mursius in his Danish Hist. l. part. 2. the Hollanders having blockt up Dunkirk, some English Mer­chants Ships did attempt to enter, but were deny'd by the Hollanders.

Most certain, if a Neuter Nation hath had notice of the War, and caution given them (as is usual) not to supply the Enemy with counterband Goods, as they call them; if such be the case, the prize is become absolute the Captors: So Queen Elizabeth did, when she seized on the 60 Sail of the Hansiatique Towns, who were carrying of Goods, Vide Tit. Cu­stoms. ropas contrabanda, to the Spaniard her Enemy; she con­demned them, and made them absolute prize; for as neuters are not compellable by the rigour of War, to give any thing 31. Eliz. C. B. Owen 45. Vide the Pro­clamation of Holland to En­gland, &c. against their will, so must they not against the will of each Party afford such things, as may dammage one another; for Persons or Nations having had notice of the War, which is done, and caution given sometimes by Proclamation, or some other publick Edict, signifying the right of their cause; shall afterwards gather to, and assist the Enemy, whether associates, neuters, or Subjects, the same yeilds a right, so far as to them, not only to the charge and dam­mage Bald. ad l. 2. c. de Sev. n. 70. Under the name of Con­traband may be compre­hended Arms only; as pieces of Ordinances, with all Im­pliments be­longing to them, Fire-Balls, Powder, matches, Bullets, Pikes, Swords, Lances, Spears, Holberts, Guns, Mortar-Pieces, Petards, Granadoes, Musket-rests, Bandaliers, Salt-peter, Muskets, Musket Shot, Helmets, Corslets, Breast-Plates, Coats of mail, and the like kind of Armature; so for Horses and other warlike Instruments, v. Marine Treaty between Eng. & Holl. 1. Decemb. 1674, art. 3. that may fall thereby, by making them prize; but may make them obnoxious to punishment; For it is the duty of those that abstain from War to do nothing for the strengthning of him, who maintains a bad cause, whereby the motions of him that wageth a just War may be retarded, and where the cause is doubtful, they ought to shew them­selves equall to both, permitting passage, Baking, Dressing, and affording provision for each Army, or Navy.

[Page 13] L. Aemilius Praetor, accused the Tejans for victualling So likewise it is Ships, Masts, and whatso­ever shall be thought or as­scertain'd ca­pable of Arm­ing an Enemy. Bartol. l. nul­lus nunc. l. 2. de Judaeis Coe­licolis. the Enemy's Navy, promising them Wine, adding, that unless they would do the like for the Navy of the Ro­mans, he would account them as Enemies: but common experience hath taught Nations and Kingdoms, when they declare a Neutrality, to make provision by way of League with both the Nations at War, that when it should happen the Armies of both, or any draw towards their Territories, it might be lawful for them to exhi­bite the Common offices of humanity to both.

The Venetians having so far prevail'd against the Turk, in the Island of Candia, that they held the City of Canea, straightly besieg'd by Sea and Land, whereby they had re­duc'd it to great extremities, it happened at that time to ride about 7 stout Merchant Men, in the Port at Smirna; the General of the Venetians being jealous of their joyning with the Turkish Armado, desired to know their minds, who answer'd, they would prove neuter in the dispute; but afterwards (though at first the Captains all refused) upon the threatning of the Grand-Seignior, to lay an Embargoe on all the Goods of the English Nation in his Dominion, and Anno 1650, or 1651. vide R. Cooke of the Church's State in equal dan­ger with the Trade. to make slaves of their Persons; those Captains were for­ced to joyn with the Turkish Forces, who beat the Vene­tians from before Canea, and so reliev'd it; the Venetians Embassador complain'd to the then Powers in England, but could have no relief, being answer'd, that those Ships in the Turks power, were Subject to it. [Page 12] [...] [Page 13] [...]

CHAP. II. Of Letters of Marque, and Reprizal:

  • I. Of Reprizals generally considered, and for what.
  • II. That Reprizals are unlawful by the Laws of Nature and the Ro­mans.
  • III. That the same by the Laws of Nations, are now become lawful.
  • IV. The advantage that accrues by the same.
  • V. The causes that requires the same.
  • VI. Of the things necessarily re­quisite for the observing them.
  • VII. Reprizals ordinary and ex­traordinary, according to the Laws of England.
  • VIII. Of the Interest of Princes of granting them, and Letters of Request
  • IX. The difference of injustice of­fer'd to Subjects and Forraigners; when and where the one is con­cluded, and not the other.
  • X. What is meant by denying of right, and doing of injustice, and where Reprizals take rooting, and where not.
  • XI. Of Reprizals awarded in cases ordinary.
  • XII. Of Reprizals issuing forth in cases extraordinary.
  • XIII. Of Letters of Request pre­cedent, allotting a time certain for satisfaction.
  • XIV. Domicil not origination sub­ject to Reprize.
  • XV. Reprizal not granted if the spoil was occasioned by War.
  • XVI. Of Persons exempt from Re­prizal by the Laws of Nations, Canon and Civil Law.
  • XVII. Where Ships or Goods are subject to Reprize, and where not.
  • XVIII. When right deny'd, whe­ther life is engag'd, and whether Persons refusing to yeild may be slain.
  • XIX. Goods taken by Reprize, where the Property is altered, and where otherwise.
  • XX. Where many Ships are present, and one becomes Captor, whether the spoil must be divided or remain his, that became Master.
  • XXI. Of the Captors duties af [...]ter a Prize taken, and its exemption from Custom.
  • XXII. Restitution, when to be made, after the debt satisfy'd.
  • XXIII. Contribution, whether it can be by the Laws of England to him whose Goods are taken by Reprize.
  • XXIV. Commissions awarded for the enquiring of depredations, un­der which the Parties may proba­ably obtain recompence.

I. REprizals known to us by the word of Represalie, or Leters of Marque, in Law have other appellations, as Pignoratio, Clarigatio and Androlepsia, &c. In imitation of that Androlepsia, among the Greeks, to seize the three next Citizens of that Place, whether the murderer had fled, and was always given to him who required revenge of the offender; the word (Reprisals) is from the French reprendre [Page 15] and reprise, i. e. resumptio, that is to re-take or take again Reprisals are all one, both in the Com­mon and Civil Law: Reprisa­lia est potestas pignorandi contra quemli­bet, de terra de­bitoris datae creditori per injuriis & da­mnis acceptis vocabular utri­usque Juris. 27. E. 3. Stat. 2. cap. 17. one thing for another, like our Saxon Withernam. Though the Art is now become lawful by the Law (indeed the consent) of Nations, yet it must have its Standard mark, for the same cannot be done by any private authority, but only by the power of that Prince or Republique, whose Subject the injur'd Person is, nor is the same grantable by authority; but where the Party injur'd has Justice deny'd him, or the same illegally delay'd.

II. By the Law of Nature, no Man is bound for anothers Act, but only the successor of his Estate, for that Goods and Estate should pass with their Burdens, was introduc'd together with the Dominion of things; hence it is that the Son cannot be molested for the debt of his Father, Leg. unica, c. ut null. ex vicanis. c. ne uxor pro mar. & ne fil. pro patre, totis tit. Ulpian. Leg. sicut sect. quod cuique univers­nom. nei­ther the Wife for the debt of the Husband, nor the Hus­band for the debt of the Wife; the same being against natural equity, that one should be troubled for the debt of another.

So it is, that no particular Men ow not, or are oblig'd for the debt which the Community ows, that is if the Com­munity have any Goods; but if Mony be lent to a Com­munity, each particular is naturally bound, as they are a part of the whole, if the Stock publique be wanting: If one lends my Country Money (says Seneca) I will not call Et: singuli de­bebunt non tan­quam proprium, sed tanquam publicem publi­ci partem. Se­neca lib. 6: de Benefit. c. 20. & cap. 19. my self his debtor, yet will I pay my share: And again, Be­ing one of the people, I will not pay as for my self, but contri­bute as for my Countrey: Naturally, nay, by the very Roman Law, Leg. nullam, c. de Execut. & Exactionibus. one Village was not bound for the other, nor one Mans Possessions charged for another; no not so much as with the debts publique: the reason being added, that it was against reason for one to be charged with the debt of another.

III. And though by the Law of Nature, one Mans Goods are not ty'd for the debts of another, no nor for those of the publique; yet by the voluntary Law of Na­tions, the same might be introduced and brought in, and the same may stand well with the Laws of Nature; for that might be introduced by custom and tacit consent, when even sureties without any cause, may subject and make lyable their Goods and Estates for the debts of a Stranger. So likewise, that for any debt, which any Civil Society, or the Head thereof ought to make good, or because the Soveraign or a Head hath not done right in anothers debt, [Page 16] but hath made himself lyable to render satisfaction; such a Society may oblige and make lyable all their Goods corpo­real In Nov. Just. 52 [...] 134. C. u­nico de injuriis in sexto. or incorporeal, for the reddition of satisfaction. Hence it was, as the Great Justinian observes, that this custom was constituted by the Nations, grounded on the urgency of humane needs, asserted with the greatest of necessities: since without this, great licence would be given and to­lerated, Just. Inst. de Jure Nat. for the committing of depradations and injuries; especially if only the Goods of Rulers were made lyable, who seldom possess any thing, that for satisfaction, the injured may easily come by, whereas those private Men, whose commerce are various, may be catcht for re­compence, sometimes with the greatest of ease, and freest from danger. Besides, the Owners of such prize, being members of the same Society, might more easily obtain mutual right, for satisfaction of the injur'd, and their Baldus 3. cons. 58. Bartol. de Repress. q. 5. ad ter. num. 9. own future indempnity then Forraigners could, who with­out such a tye, would be very little regarded.

IV. The benefit which this custom of obligation hath now introduced, is become universal, and common to all Nations; so that People that are at one time griev'd with [...] Herod, to whom it was not lawful to make War a­gainst the A­rabians, might lawfully use pignoration. Joseph. lib. 6. Livy lib. 34. this burden, at another time might be eased of the same, and by such taking, the oppressed might the more easily ob­tain Justice, & War be prevented. The Carthagineans would not suffer Ariston the Tyrian to be taken; for said they, the same will befall the Carthagineans at Tyre, and in other Towns of Trade, whereto they resort.

V. A due administration of Justice, is not the least sense, wherein Princes are styled Gods: To deny or delay Justice, is injustice; Justice is every Mans right, who hath not forfeited what he might claim by the Jus Gentium.

If therefore the Party cannot obtain his Definitive Sen­tence or Judgement, within a fit time against the Person of whom he complains, or if here be a Judgement given against apparent right and Law; yet if no relief can be had, the Bo­dies or movables of his Subjects, who renders not right, may be taken. C. Si senten­tiae c. 16. de Sent. excom. in 6. constit. Leg. qui restituere, de rei vindic.

VI. In the prosecution of which there must be,

  • 1. The Oath of the Party injur'd, or other sufficient proof, touching the pretended injury, and of the certain loss and dammage thereby sustain'd.
  • [Page 17] 2. A proof of the due prosecution for the obtaining a sa­tisfaction in a legal way.
  • 3. Protelation or denyal of Justice.
  • 4. A Complaint to his own Prince or State.
  • 5. Requisition of Justice by him or them, made to the Su­pream Head or State, where Justice in the ordinary course was deny'd.
  • 6. Presistency still, in the denyal of Justice:

All which being done, Letters of Reprisal under such cautions, restrictions, and limitations, as are consonant to Law, and as the special case may require, may issue not only by the Jus Gentium, and Civile, but by the antient and Municipal Laws of this Kindom. MagnaCharta C. 30. the later Clause. Claus 7. Johan­nis Reg. m. 22.

VII. The Reprisals grantable by the Laws of England, are of two sorts, Ordinary and Extraordinary. The Ordi­nary Pat. 15. E. 3. part. 2, dors. 48. are, where any English Merchants or their Goods are spoiled, or taken from them, in parts beyond the Sea Pat. 23. H. 6. part. 2. dors. 14, 15. by Merchants Strangers, and cannot upon Suit or the Kings demanding of Justice for him, obtain the same, he shall have upon testimony of such prosecution, a Writ out of the Chancery, to arrest the Merchants Strangers, of that Fitz. H. N. Bre. fo. 114. Reg. 129. Pat. Rolls 14. 14. H. 6. par. 1. dors. 15. 17. 22. & M. 5; 6, 7. par. 2. dors. 18. 22. E. 4. par. 2. M. 25. dors. 2 & 4. Nation their Goods here in England; the which is grantable the Subject opprest of Common Right, by the Chancellor or Keeper of England, who always in such case hath the approbation of the King or Councel, or both, for his so doing.

The Extraordinary are by Letters of Marque, for Repa­ration at Sea, or any place out of the Realm, grantable by the Secretaries of State, with the like approbation of the King or Councel, or both.

VIII. And as Princes by the Laws of Nations, are re­sponsible for injuries publique, so should they by the most prudent ways imaginable, prevent those that are private, not suffering Forraigners, if possible, to receive wrongs in their Countries: For, as the Florentine observes, If a Machiavel on his Tit. Liv. C. A Prince in this later Age lost his Coun­try but for a load of Sheep Skins. Man be exceedingly offended, either by the publique, or by any other private hand, in a Forraign Nation, and cannot ob­tain reparation according to Justice, he will never leave blow­ing the coals, or cease promoting the injury, till the flame break out in War; in which he cares not if he sees the ruin of that Kingdom or State, where he receiv'd his wrongs.

Nor should the Prince or State of the Person injur'd, [Page 18] value his misfortune at so low a rate, as to deny him Let­ters of Request; for that were to heap up injury upon injury, but likewise if Justice be deny'd after such Request, to Arm him with power to take satisfaction by Reprise, vi manu & militari. Leg. qui resti­tuere. de rei vindicat.

Generally there always preceeds Letters of Request, 2 or 3, more or less; and according to the satisfaction, suffi­cient or insufficient, returned in answer to the same, Com­missions are awarded.

IX. Subjects cannot by force hinder the Execution, even of an unjust Judgement, nor lawfully pursue their right by force, by reason of the efficacy of the power over them: But Forraigners have a right to compel, which yet they cannot use lawfully, so long as they may obtain satisfa­ction by Judgement. But if that ceases, then Reprisal is let in.

Now Judgement is obtained either in the ordinary course, Res judie. pro veritate habe­tur; yet it is as true, Judex male judicans pro injuria te­netur. by way of Prosecution, or Suit, or Appeal from the same, after Sentence, or Judgement given to a higher Court; or else in the Extraordinary way, which is by way of Sup­plication, or Petition to the Supream Power: but we must understand that to be, when the matter in controversie is, Et cum per in­juriam Judicis domino r [...]mquae debitoris non fuisset, abstu. lisset creditor, quasi obliga­tum sibi; & quaeretur, an soluto debitor restitui eam op­porteret; de­bitori Scae­vola restituen­dam probavit, Leg. scriptu­ram ss. de distr. pign. tam quod merita qu [...]m quod modum praecedendi; not doubt­ful, for in doubtful matters the presumption is ever for the Judge, or Court.

But the Reprisal must be grounded on a wrong Judge­ment, given in matters not doubtful, which might have been redressed one way or other; either by the ordinary or extraordinary power of the Country or place; and the which was apparently perverted, or deny'd.

But if the matter be doubtful, then otherwise; for in causes dubious or difficult, there is a presumption always that Justice was truly administred by them, who were duely elected to publick Judgements.

XI. And yet in this later case, some Verus debitor licet absolutus, sit natura ta­men debitor permanet. Pau­lus Leg. Julia. D de cond. in­debtor. who are of opi­nion, that if the cause were dubious, and if the Judge­ment were against apparent right, the Stranger oppressed, is let into his satisfaction; and the reason is because the Judge's authority is not the same over Forraigners, as over Subjects, for the reason above mentioned.

If an English Merchant shall prosecute a Suit in the Or­dinary Courts of Law beyond Seas, and Sentence or Judge­ment [Page 19] shall pass against him, from which he appeals to the Supream Judgement, and there the first Judgement or Sentence is affirmed, though the Complainant hath re­ceived a Judgement against the real right of the cause, yet this will be no cause for Letters of Reprisal, though per­haps it may occasion Letters of Request (if there be strong circumstances for the same) to have a rehearing of the cause.

But if an English Man shall recover a debt there, and then the Officer, having the debtor in custody, will wil­fully let the Prisoner escape, and then become insolvent; the same may perhaps occasion Reprisal.

In England, if a Forraigner brings an Action personal against I S. and the matter is found special, or general, and Nulli ve [...]de­mus, nulli ne­gabimus, aut differemus Ju­stitiam, Grand Charter. Coke 2. Inst. 56. the Party prays Judgement, and the Court refuses it; and then the Deffendant dyes, and with him the Action, (the nature of it being such) the Party is here without re­medy, the same may occasion Letters of Reprisals, if it be accompained with those circumstances, that evince an apparent denyal of Justice, i. e. as putting it off from Term to Term, without cause.

An English Man pursues his right in the legal Courts beyond Seas; and the Military Governor opposes the pro­secution, and by force conveys away the debtor and his Goods, the Sentence or Judgement is obtained, its ulti­mate Case of Slaughter, Lee against the Governor of Leighorn upon the Petition of Gould & Can­ham Merchants in Nov. 1670. on which two Letters of Re­quest are gone to the Great Duke of Tusca­ny, for redress. end being Execution, being thus frustrated, may occasion Letters of Reprisal.

XII. Persons murdered, spoiled, or otherwise dampni­fy'd in hostile manner, in the Territories or places be­longing to that King, to whom Letters of Request are issued forth, if no satisfaction be returned, Letters of Re­prisal may issue forth; and the Parties petitioners are not in such cases compelled to ressort to the Ordinary pro­secution: But the Prince of that Country, against whom the same are awarded, must repair the damage out of his or their Estates, who committed the injuries; and if that proves deficient, it must then fall as a common debt on his Country.

XIII. Such Letters of Request generally allot a time after the Mas­sacre at Am­boyna, and the other depre­dations com­mitted by the Flemings, on the English his Majesty in 1625. issued forth his Letters of Request to the States of Holland, for satisfaction within 18 Months; otherwise Letters of Re­prisal. Vide Journals of that year, and Leo Aitzma p. 48. 13. 41. 82. certain for damages, to be repaired, if not Reprisals to issue forth.

[Page 20] XIV. It is not the place of any Mans Nativity, but his domicil; not of his Origination, but of his Habitation, that [...]bjects him to Reprise: The Law doth not consider so much where he was Born, as where he lives, not so much where he came into the World, as where he improves the World.

If therefore Letters of Reprisal should be awarded against the Subjects of the Duke of Florence, and a Native of Flo­rence, but denizied or Naturalized in England, should have a Ship on a Voyage for Leighorn, if a caption should be made, the same is not lawful, nor can the same be made prise.

XV. Nor doth it any where appear, that Reprisals can be granted on misfortunes happenning to Persons or their Goods, residing or being in Forraign parts in time of War there; for if any misfortune happens, or is occa­sioned to their effects, or to their Persons, then they must be contented to sit down under the losse; it being their own faults, they would not fly or relinquish the place, when they fore-saw the Country was subject to the spoil of the Souldiers, and devastation of the Conqueror.

The factions of the Guelfs and Gibellins in Florence, warring against each other. The Guelfs obtaining the Vi­ctory, Vid [...] Machia­vel History of that War. and thrusting the Gibellins out of it, after they had taken the City. Domum cujusdam Hugonis de Papi in hoc Mich. 9. E. 1. Rott. 53. (in Thesaur. Recept. Regis in Scac.) Coram Rege Florentia. Regno Angliae demorantae diruerunt, and plundred his Goods therein, qui Hugo supplicavit Dom. Regi, ut inde Itali Mercatores (of that faction and City then in England) emendas hic sibi facerent; upon which adjudicatum fuit; quod dicti Mercatores, dicto Hugoni satisfaciant pro damnis susceptis, & destructione domus suae: upon which a Writ of error was brought, and the Judgement was reversed, Vide Rott. Va­sconie 28. E. 3. Rott. 7. pro Rob. Draper & aliis Civibus, Corke in Hiber­nia. in these words; Quod non est consuetudo Angliae de aliqua transgressione facta in aliena Regione, tempore Guerrae, vel alio modo, consideratum est, quod totus processus & ejus effe­ctus provocentur, &c.

XVI By right (for so it is now called of rendring like for like) there are many Persons exempted, and those Rex facisne tu Regium Nun­tium Populi Romani Quirit. vaja comites (que) meos. The Embassadors of the Romans being ill, used by the Cartha­ginians, and Scipio's Army having surprized the Embassadors of the Carthaginians, was demanded what should be done to them, answered, not as the Carthagi­neans have done to the Romans. whose Persons are so priviledged, have also protection [Page 21] for their Goods, some by the Laws of Nations, some by the Civil Law, others by the Common Law; among which Embassadors by the Laws of Nations, their retinue and Goods are exempt, coming from him, who awarded the Reprise, the Laws of Nations not only providing for the Dignity of him that sends, but likewise the security going and coming of him that is sent.

Nor against those that travel for Religion, nor on Stu­dents, Schollars, or their Books; nor on Women or Chil­dren, by the Civil Law: nor those that travel through a Country, staying but a little while there.

By the Canon Law, Ecclesiastical Persons are expresly ex­empt from Reprisals.

A Merchant of another place then that against which Reprisals are granted, albeit the Factor of such Goods were of that place, are not Subject to Reprisals.

XVII. Ships driven into Port by storm or stress of wea­ther, have an exemption from the Law of Reprisals, ac­cording to the Jus commune; but by the Law of England otherwise, unless expresly provided for in the Writ, or Commission.

But if such Ship flyes from his own Country to avoid confiscation, or some other fault, and is driven in by stress off, she may then become subject to be prize.

But it is not lawful to make seizure in any Ports, but in his who awarded the Reprisal, or his against whom the same issued; for the Ports of other Princes or States, the Peace of them are to be maintained.

XVIII. Vita autem Subditorum in­nocentium, ut ex tali causae obligetur, sorte creditum fuit apud aliquo [...] Populos eo ni­mirum quod crederent uni­cui (que) hominum jus vitae ple­num esse in se, & ad Rem pu­blicam potuisse transferri, quod minime esse probabile, nec savctiori Theo­logiae consenta­neum. Grotius de Jure belli lib. 3. cap. 2. ss. 4. And seems to be of opinion by the Law of Charity, that the prosecu­tion of right for a Man's Goods, which inevitably must be by the life of Man, ought to be omitted. Lib. 2 cap. 10. Livy lib. 2. Ships attaqued by those that have Letters of Reprise, and refused to be yielded up, may be assaulted, and entered; and though it may fall out not by inten­tion, but by accident, that some of those that so 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.

[Page 22] 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 Bartol. in Leg. si quid Bello D. de cap. Ang. & Salic. in Leg. ab hostibus, C. de Capt. Const. Gall. 20. tit. 13. Art. 24. Consul. Maris 287. Trin. 17. Car. I. in B. R. Marsh Report. Res qu infra Prae­sidia perd [...]ctae, nondum sunt quanquam ab hostibus occu­patae, Dominum non mutarunt, ex Gentium Jure. 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 Mich. 32. Eliz. Somers and Sir Ric. Bulckleys C. Leonard 2. part 181. 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, [Page 23] 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 Trin. 3. Jac. in B. R. Rols fo. 530. the Persons offenders should for such fault create a forfeiture of their Vessel, and the Owners must be for ever con­cluded Sir Francis Moors Rep. 1. Jac: waltham, vers. Mulgar. 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 3. Eliz. cap. 5. 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 12. Car. II: called the Act of Navigation. 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; Gregorias l. [...]. 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, [Page 24] 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 Fitz. H. N. B. fo. 162. Old. N. Bre 103. Reg. Orig. fo. 176. Country mony, I will not call my self debtor, yet I will pay my share: Seneca Benef. cap. 19. 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 Pat. 26. E. 3. pars 1. M. 16. Dorso. 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 Pat. de An. 6. H. 5. pars. 1. [...] M. 9. Dorso. De caeteris per­sonis arrest. & capiend. 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 to Privateers, and the immunities they claim by the same.
  • VII. Of the care that obliged on the issuing forth such Commissisions.
  • VIII. Of provisions made as in reference to their regulating, and especially the last Treaty Marine between England and Holland.
  • IX. Of Goods subject to prise, how considered in reference to adju­dication general.
  • X. Of the Goods considered in re­ference to adjudication, on occa­sions special.
  • XI. Of the lading made prise, whether it draws in a forfeiture of the Vessel, and where otherwise.
  • XII. Whether Ships refusing to yeild up to such, life is engaged.
  • XIII. Privateers where subject to punishment, and their actions occasion a forfeiture of their Vessel.
  • XIV. Of things not subject to spoil.
  • XV. Considerations general on Privateers.

1. NAturally every one may vindicate his own right, Leg. servus. [...]. de Serv. export DD. ad Leg. si quis in servi­tutem. D. de fur. Leg. prohib. c. de Jure Fisci. therefore were our hands given us: but to profit another in what we can, is not only lawful, but com­mendable; since nothing is more servicerble to Man, then Man: now there are divers obligations between Men, which engage them to mutual aid; for Kinsmen assemble and bring help, and Neighbors are call'd upon, and fellow Citizens; for it behoves every one either to take armes for himself, if he hath receiv'd injury, or for his Kindred, or for his Benefactors, or to help his fellows, if they be wrong'd: And Solon taught, that Common-wealths would be happy, wherein every one would think anothers injuries Bartol. in Leg. ut vim. D. de just & Jure n. 7. & 8. to be his own. But when War is denounc't, it matters not what obligations are wanting, it is enough the Na­tion is injur'd in general; for in that every individual is wrong'd, and all participate in the indignities and public damages of his Country; to revenge or prevent which, is the duty of every member of the same.

[Page 26] II. Since therefore it is not against the Law of nature to spoil him, whom it is lawful to kill, no wonder that the Laws of Nations permitted the Goods and Ships of ene­mies Cicero Offic. 3. to be spoiled, when it suffered their Persons to be slain.

III. The approbation of which in the Wars of later Ages, hath given occasion to Princes to issue forth Com­missions The Son of Cato Censorius, having served as a private Soldier of pay under Pompi­lius, the Le­gion being dis­banded, the Young Man was resolved to remain with the Army, though but a Volunteer; Cato wrote to Pompilius the General, that he should give him an Oath the second time; giving this reason, Quia priore amisso; jure cum hostibus pugnare non poterat: Cicero sets down the very words of Cato to his Son, whereby he admonisheth him not to enter into Battle; Neque enim jus esse qui mi­les non sit pugnare cum hoste, Cic. Offic. 1. to endamage the enemy in their Commerce, and to prevent such supplyes as might strengthen or lengthen out War, to persons to whom the prise or caption be­come absolute the Captors, and that to prevent the spare of Ships of force to be absent from their respectives Squa­drons or Fleets.

By those of Holland were termed Capers, by the Spa­niard they had their denomination, from their respective parts, as Ostenders, Dunkirkers, and the like, in England call'd Privateers; how far the actions of those as in rela­tion to the attacking and killing of the enemy, or spoil­ing of their Ships and Goods are lawful, not being com­manded nor hired thereto, may be some question.

IV. By the Laws of Nations (as hath been said) it is lawful for every Subject of that Nation in War, to seize upon the enemies Goods and Ships, as also to kill them; for they are after War denounc't by Law, lookt upon as of no account, and if respect be had to natural and in­ternal right, it seems granted to every one in a just War, to do those things, which he is confident within the just measure of warring, be advantageous to the innocent party; but though there may be such authority given, yet what tittle can they claim or appropriate to them­selves of the Ships or Goods of enemies (for surely there is nothing owing to such, nor are they lawfully call'd to the same:) unless they can shrowd themselves under the protection of what they do, is only to exact punish­ment from the enemy, by the Common right of Men.

V. Commissions to kill or spoil the enemy, are in two respects; either General or Special: General as in a tu­mult; [Page 27] among the Romans, the Consul said, Whosoever would have the Common-wealth safe, let him follow me; and to all particular Subjects is sometimes granted a right of killing in self-defence, when it is publickly expedient, as on a sudden occasion, and the like.

VI. Special Commissions, be such as are granted to those that take pay, and are under Orders; the not obeying of which may be punished with death, though Leg. Deserto­rem. D. de rei milit. the act succeeds well.

Others to repair a particular dammage by way of Re­prise, C. Quando li­ceat unicuique, Leg. 1 & 2. the original dammage being turn'd into a Natio­nal debt, but that satisfy'd the other determines, or else to those who receive no pay, but go to War at their own charge; and that which is more, administer at their own▪ costs a part of the War, by providing Ships of force, and all other military provisions to endammage the enemy or their Confederates, the which are termed Privateers, &c. as above, to whom instead of pay is grant­ed leave to keep what they can take from the enemy; and though such Licence is granted them, yet may they not convert of their own head to their private use those prises, before the same have been by Law ad­judged lawful to the Captors, and the Admiral had his share.

VII. Nor may such Privateers artempt any thing against the Laws of Nations, as to assault or endam­mage an enemy in the Port or Heaven, under the pro­tection of any Prince or Republick, be he Friend, Ally or Neuter, for the peace of such Places must be kept in­violably.

Sir Kenelme Digby having obtain'd a Commission against the French, who being in the Streights, was every where honoured as a Cavalier whom the King of Great Britain favoured; in his Voyage he took some prises and coming to Algier, redeemed several Captives, whom he took aboard, and placed in the several Vessels he had made prise of, the which he so effected, that in a short time he became Illustrissimo of six Ships of War; coming to Cape Congare, ten leagues from Scanderoone, and having sent a Boat to descry the road, word being brought that there were in the road two Venetian Galeasses, with two other Galeons, two English Ships, and several French [Page 28] Ships; Sir Kenelme being satisfy'd of the prise, resolved to attaque them the next Morning, although the Admi­ral of the Venetians having declared himself protector of the French, and that he would destroy all the English Ships of War that he should meet, either in that Repu­blick or Grand-Seigniors Seas. Sir Kenelme notwithstand­ing, resolv'd to engage them, and accordingly bore up to them, and the Venetian General weighed anchor to meet him; Sir Kenelme before he fired, sent a Satty, to inform the Venetian of his Quality, and of his Commis­sion, being only to endeavour to make prise of the French, This matter was highly de­bated at the Councel board on the com­plaint that of Landy then Embassador for that Repu­blique, at Lon­don an. 1629. Vide Hist. Re­public. Venet. fo. 170. and giving him all the assurance possible of his friendship and respect to the Republique; but before the Satty was answer'd, the engagement was begun by the English, French and Venetian: This action of Sir Kenelme Digby, was question'd by the Turk; for that hostility had been committed by the English in the Grand-Seignior road, and thereupon the Bassa of Alleppo, and Cady of Scanderoone, made an Avenia or Embargoe on the English Merchants, till reparation was made, for the breaking the peace of the Port.

VIII. In the granting of such private Commissions, there is alwaies great care to be had and taken by caution, to preserve the leagues of our Allies, Neuters and Friends, according to their various and several Treaties; and there­fore at this day by the late Treaty between His Majesty and the States of Holland at London, before any Privateer or Caper can receive Commission, the Commander is oblidged to enter before a competent Judge, good and sufficient security by able and responsible Men, who have no part or interest in such Ship, in 1500 l. Sterling, or 15500 Gilders; and when they have above one hundred Treaty Marine at Lond. 1. of Decemb. 1674. In the Com­mission must always be mentioned that they have given such se­curity. and fifty Men, then in 3000 l. or 33000 Gilders, that they will give full satisfaction for any dammage or in­juries, which they shall commit in their courses at Sea contrary to that Treaty, or any other Treaty made be­tween His Majesty and that State, and upon pain of Re­vocation and annullity of their Commissions, and for an­swering of such dammage or injuries, as they shall do, the Ship is made lyable.

IX. If a Suit be commenced between the Captor of a Prise and the Claimer, and there is a Sentence or a [Page 29] Decree given for the party reclaiming; such Sentence or Art. 13. Decree (upon security given) shall be put in execution, These Arti­cles for their excellency are fit to be a Standard to all the Nations of Europe. Art. 14. not withstanding the Appeal made by him that took the prise, which shall not be observed in case the Sentence shall be given against the Claimers; if torture, cruelty or barbarous usage happens after a caption to be done to the persons taken in the prise, the same shall ipso fa­cto discharge such a prise, although she was lawful, and the Captains shall loose their Commissions, and both they and the offenders be subjected to punishment.

X. Such sort of instruments having made a caption of In hostium esse partibus, qui ad bellum necessaria hoste administrat. Consulat. Ma­ris editus est Lingua Italica, in quem relate sunt constitu­tiones Impera­torum Graeciae, &c. cujus libr [...] tit. 276. Ships bound for an enemy from Nations Neuter, or in a­mity with both the warring States; the lading in order to be made prise, is reduced to these 3 several heads.

First, those Goods that are fit to be used in War, un­der which are included Powder, Shot, Guns, Pikes, Swords, and all other instruments and provisions of armature fit to be used in the Feild or at Sea.

The second, are those things that may be used in time of War and out of War, as Money, Corn, Victuals, Ships, and the like.

And the last are those Goods, that are only fit for lu­xury and pleasure.

XI. The first are accounted prise without controversy; He is to be accounted an enemy, that supplyes an enemy with things necessary for the War.

The second is to be governed according to the State and condition of the War; for if a Prince cannot well defend himself, or endammage the enemy, without in­tercepting Cambden an, 1791. by the fourth Article at the Treaty at Lond. 1674, those Goods that may be used out of war as in war, (exceptShips) may not upon any account be call'd pro­hibited, nor subject to a condemnation, except carry'd to Places besieged. Art. 4. See John Meursius his Danish History concerning the Prohibiting of Goods by those Northern State. Vide postea, the Grand prise condemned by Queen Elizabeth in tit. Customs. of such things, necessity will then give a right to the condemnation: And so Queen Elizabeth did the Hansiatique Fleet taken, laden with Corn for Lisbon, upon consideration of the state of the War, the same be­came prise.

The last become free, according to that of Seneea; I will not help him to Money to pay his Guards; but if he shall desire Marbles and Robes, such things hurt not others, only they minister to his luxury: Souldiers and Armes I will not supply him with; if he shall seek for Players and recreations [Page 30] to soften his fierceness, I will gladly [...] to him: Ships of War I would not send him, but such [...] for pleasure and ostentation of Princes sporting in the S [...], I will not deny.

XII. If a Privateer take a Ship laden wholly with And Persons so attempting to releive an enemy, may in some cases be punished; but if the same be done by necessity of obedience, though the par­ties are much to be blamed, yet are they not to be punished; and so it was with those which releived Sir John Old-Castle, with provisions, being taken, were discharged. counterband Goods, both Ships and Goods may be sub­jected, and made prise.

But if part be prohibited Goods, and the other part are not prohibited, but such as according to the necessity of the War shall be so deemed, the same may draw a By the 7. Ar­ticle in the Treaty at Lon­don, if the Skipper will deliver out the prohibited Goods, the Ship may proceed with the rest in their Voyage or course, as they please, and the Ship shall not be brought into Port. consequential condemnation of Ships, as well as lading.

If part of the lading are prohibited, and the other part are meerly luxurious and for pleasure, only the Goods pro­hibited become prise, and the Ships and the remainder become free, and not subject to infection.

XIII. If such Ships shall be attaqued in order to an Nec reus est mortis alienae, inquit Augu­stinus, qui sui possessioni mu­rorum ambi­tum circumdu­xit: si aliquis ex ipsorum usu percussus intereat. Publ. Epist. 154. examination, and shall refuse, they may be assaulted, like a house supposed to have Theeves or Pyrats in it, refuses to yeild up their Persons, may be broke up by the Officer, and the Persons resisters may be slain.

XIV. But if any of these Privateers wilfully commit any spoil, depradations or any other injuries, either on the Ships of our Friends or Neuters, or on the Ships or Goods of our own Subjects, they will notwithstanding Leg. 5. de N [...] ­viul. C. lib. 3. Trin. 3 Jac. in B. R. Rolls 5. p. Abridg. f. 530. they are not in pay, be subjected in some cases to death and other punishments, according to the demerits of their crimes, and perhaps may subject their Vessel to forfeiture.

And though by the Law of Nature the Goods of ene­mies are to be spoiled as well as their Persons slain, yet some Goods and things seem exempted, and ought not to be spoiled, and therefore it is not lawful to land on the ter­ritories of our enemies to spoil places dedicated to God: [Page 31] though Pomponius observes, when Places are taken by Pompon. Leg. cum loca D. de Religiosis. Tacitus Anal. 13. the enemy, all things cease to be Sacred, the reason given is, because the things which are call [...]d sacred, yet are they not indeed exempted from humane uses, but are pu­blique. The Townsmen, saith Tacitus, opening their gates, submitted themselves and all they had to the Romanes, Wars and Vi­ctories most part consist in taking and o­verthrowing Cities, which work is not done without injury of the Gods, the walls of Cities and Temples of the Gods partake in the same ruin, the Citizens and Priests equally slaughtered; nor is the ra­pine of sacred riches and prophane un­like: so many are the sacriledges of the Romans as their Trophies, so many are their Triumphes over Gods and Nations: and then goes further, Tot manubiae quot manent adhuc simulachra captivorum deorum. Mox & bene, quod si quid adversi urbibus acci­dit, [...]dem clades Templorum quae & moenium suerant. Even upon the same reason, that the instruments of Husband-men are not to be taken for a pledge by the Civil nor Common Law. Leg. exeunt. C. quae res pign. Coke sup. Littleton 47. themselves, were spared, the Town was fired, Pompey entered the Temple by the right of Victory, not as a suppliant, but as a Conqueror: and though that priviledge may seem right by the Law of War to a Soveraign, or a General, that intends a Conquest, yet that power may not seem de­volved to him, whose Commission is cautionally to en­dammage the enemy only, as in reference to his commerce and provisions of enabling them to withstand the War: Certainly, that conquest is poor, whose Trophies and Triumphs are made up with Roofs, Pillars, Posts, Pul­pits and Pews, and the spoil of Agriculture. Hence it is that at this day, the King of France in Germany and Hol­land, accepts of Contributions, by which the Cities and Churches are not olny spared; but even the Country-men plough and sow as quietly as if there were no Armies in their Territories at all.

XV. Most certain, those sorts of Capers or Priva­teers, being Instruments found out but of latter Ages, and its well known by whom it were well they were re­strained by consent of all Princes; since all good Men ac­count them, but one remove from a Pyrat who without any respect to the cause, or having any injury done them, or so much as hired for the service spoil Men and Goods, making even a trade and calling of it, a midst the cala­mities of a War. and driving a commerce and mart with the spoil, and that with as much peace and content, as if they had never heard of tears, blood, wounds or death, or any such thing: such to expose their lives against Ships of the like kind, were both honourable and just, or those [Page 32] that should aid the enemy with Goodsprohibited as afore, such prises were possessions most noble; but the Goods, Ships and lives of the innocent peaceable traders to be exposed to rapine and spoil, renders them worse then the Roman Lictors, by how much 'tis to kill without cause, Heads Men executing the guilty, they the guiltless.

It was a high necessity that enforced the English to commissionate such, the number of her then enemies, covering the Sea, like the Aegyptian locusts; it were well they were rejected by consent, or if allow'd off, not sub­ject to Quarter, when taken by Ships of War: A trade that St. Paul never heard of, when he said, Who goeth to War at his own charge? [...]. Cor. 9. 7.

CHAP. IV. Of Pyracy.

  • I. Pyrats what?
  • II. Of the duty incumbent on Prin­ces and States, as in reference to such, and whether lyable for the dammages they commit.
  • III. Pyrats where they hold a so ciety, how the is same esteemed in Law, and of equality held by them.
  • IV. Where such may obtain the right of legation.
  • V. Ships where lyable for the redem­ption of the Master, who remains as a pledge for the freedom of the Ship and lading, and where not.
  • VI. An oath given for the dis­charge of a Ship from Pyrats to pay them a summe, whether the same ought to be performed.
  • VII. Forraigners spoiled by En­glish Pyrats may, p [...]rsue for Ju­stice, within the Stat. of 28 H. 8.
  • VIII. Where the subjects of a For­raign Nation committing Pyracy may be punished for the same. and,
  • IX. Pyracy committed by the sub­jects of a Nation in enmity with the Crown of England, whether the same is Pyracy, or otherwise punishable.
  • X. Pyracy committed in the British Seas, properly punishable by the Crown of England, and not o­therwise.
  • XI. Pyracy committed on the Oce­an where the Pyrats may be exe­cuted by the Laws of Nature.
  • XII. Pyrats overcome in the at­tempt, where the Captors may execute them without any Tryall or Judgement.
  • XIII. Pyrats attempting, to rob commit a murder, whether all are principal, or only the slayer, and the rest accessories.
  • XIV. If the subjects of one For­raign Nation rob another, and bring the booty into England, whether the party injured may proceed Criminaliter for punish­ment, and Civiliter for restitu­tion.
  • XV. Pyrat takes only Men; and no part of the lading, whether the same be Pyracy.
  • XVI. Where a Master may commit Pyracy of those things that are committed to his charge, and where otherwise.
  • XVII. Where Pyracy may be, though there be nothing taken; and where Goods are taken out of a Ship, and no body in it.
  • XVIII. The Captain and Crew of a Vessel, that have a Commission of reprise commit Pyracy, whether he that procured the same and im­ployed them, ought to answer the damage.
  • XIX. Of Goods taken and retaken by a Friend, whether the property of the prise is altered.
  • XX. Of Restitution made of Goods taken and retaken from a Pyrat, by the Law Maritime.
  • XXI. Of Restitution frustrated by the Common Law.
  • XXII. Of Pyracy as in reference to matterscriminal, and how pu­nishable this day by the Laws in England.
  • XXIII. How the Stat. of 28 H. 8. operates, as in reference to Pyracies.
  • XXIV. Whether depradation in [Page 34] Ports within the Realm. remains Robbery at the Common Law, or Pyracy by the Law Maritime.
  • XXV. Where benefit of Clergy is allowable to Pyrats, and where not; and whether by the pardon of all selonies, Pyracy is included.
  • XXVI. Whether attainder for Py­racy works a corruption of Blood, and forfieture of Lands.
  • XXVII. Goods taken at Sea and brought to Land, the parties may be indicted upon the Stat. of. 28 H. 8. cap. 15.
  • XXVIII. Where the Admiralty claiming with an original or a concurrent Jurisdiction, the Com­mon Law will not intermeddle.
  • XXIX. How satisfaction of old was repaired to persons robbed, and how the offenders were pu­nished.

I. A Pyrat is a Sea Thief, or Hostis humani generis, who for to enrich himself, either by surprise or open force, sets upon Merchants and others trading by Sea, ever spoiling their lading, if by any possibility they can get the mastery, sometimes bereaving them of their lives, and sinking of their Ships; the actors wherein Tully calls Ene­mies to all, with whom neither Faith nor Oath is to be kept.

II. By the Laws of Nature Princes and States are re­sponsible for their neglect, if they do not provide Ships of War and other remedies for the restraining of these sort of Robbers; but how far they are bound either by the Civil Law or Common Law of this Kingdom, may be some question: for it is agreed they are not the cause of the unjust spoil that is committed by them, nor do they partake in any part▪ of the plunder; but if a Prince or State should send forth Ships of War or Commissions for If the offen­ders could be found, they ought to be yeilded up to Justice; and if they have any Estate, the s [...]me ought to go towards the reparation of the dammage. reprise, and those instead of taking prises from the Ene­my, turn Pyrats, and spoil the subjects of other Friends; there has been some doubt, whether they ought not to make satisfaction to the parties injured, in case the of­fenders should prove unable: surely there is no more rea­son for this latter then the first; for seeing Princes and States may give all their subjects power to spoil the Ene­my; nor is such a Permission any cause why dammage was done to our Friends, when even private Men without any such Permission, might send forth Ships of War; be­sides Caution is commonly ta­ken upon the giving forth of such Commis­sions to prevent the same, if possible. They are generally restrained by Proclama­tion when a War breaks forth, and commanded, that none presume to set forth, without a Commission. it is impossible that Princes or States should fore­see, whether they would prove such or not; nor can it be avoided, but we must imploy such, otherwise no [Page 35] Army or Fleet could be prepared; neither are Kings to be Constit Galliae tom. 3 tit. 3. constitutione [...]nni 1583. cap. 44. Vide etiam tom. con­constit. 3 tit. 2 constit. Anni 154 [...]. cap. 44. Vide 2 [...]. Art. at the Treaty at Breda be­tween England and Holland, and the 15. Article in the Marine Treaty at Lond. 1674. accused if their Souldiers or Mariners wrong their Confe­derates, contrary to their commands, though they are oblidged to punish and yeild up the offenders, and to see that legal reparation be made out of the Estate of the Pyrats: If Letters of Marque or Reprizal be granted out to a Merchant, and he furnishes out a Ship with a Captain and Mariners, and they instead of taking the Goods or Ships of that Nation against whom their Commission is a­warded, take the Ship and Goods of a Friend, this is Pyracy; and if the Ships arrive in * England, or in any other of His Majesties Dominions, the same shall be sei­zed, and the owners for ever loose their Vessel. Trin. 7. Jac. in B. R. Rolls f. 530. Vide Sir Francis M [...]ores Re­ports, 1 Jac. Waltham versus Mulgar [...]

From hence it is, that Princes and States are very cau­tious upon this we call Jure Belli privati, how they en­gage themselves, or those who seek reparation for wrongs before received; for the person injured governs not the action, but devolves the power to some other hired for that particular use, whose Law is no more then this, There is most right where is most pay or prize: Unhappy state of Man, whose support and living is maintain­ed only by exposing himself to death, a Calling that nothing can make it honest, but the highest necessity or pious charity. And therefore those that issue forth such sort of Commissions, generally take caution for their re­turning within a convenient time, and not to wander in that unhappy condition.

III. Though Pyrats are called enemies, yet are they not properly so termed: For he is an enemy, saies Cicero, who hath a Common-wealth, a Court, a Treasury, consent Leg. Hostes de verb. signif. and concord of Citizens, and some way, if occasion be of Peace and League; and therefore a Company of Pyrats or Freebooters are not a Common-wealth, though per­haps they may keep a kind of equallity among themselves, without which no Company is able to consist; and though Leg. Hostis de Captivis. it is seldom they are without fault, yet hold society to maintain right, and they do right to others, if not in all things according to the Law of Nature (which among [Page 36] many people is in part obliterated) at least according to agreements made with many other Nations; or according to Custom: So the Greecks at what time it was accounted lawful to take spoil at Sea, abstained from slaughter, and populations, and from stealing Oxen that plowed, as the Scholiast upon Thucydides observes, and other Nations li­ving also upon the spoil when they were come home from Sea, sent unto the Owners to redeem (if they pleased at an equal rate) what they were robbed of at Sea, and at this day if a Ship hath the Emperor of Barbarys protection, the Pyrats of that Nation (if they seize) will restore, and if there be no protection, yet if taken within sight of their Castles, the Prize is not absolute; but if resistance is made, and there be a Caption, she then becomes the Captors for ever; as the price of blood.

IV. Pyrats and Robbers that make not a Society, i. e. such a Society as the Laws of Nations accounts lawful, are not to have any succour by the Law of Nations. Tiberius, when Tacfarinas had sent Legates to him, he was displeased that both a Traytor and a Pyrat should use the manner of an Enemy, as Tacitus hath it; yet sometimes such Tacitus Annal. 3. C [...]sar lib. 3. de Bello Civ. Men (Faith being given them,) obtain the right of Lega­tion as the Fugitives in the Pyrenean Forrest, and the Ban­diti at Naples, and Solyman the Magnificent, having en­tertained Barbarossa the famous Pyrat, sent word to the Hist. Republ. Venice f. 91. Venetians, that they should use him and esteem him no more as a Pyrat, but one of their own Port.

V. If a Ship is assaulted by a Pyrat, for redemption of which the Master becomes a Slave to the Captors, by the Law Maritime the Ship and lading are tacitly oblidged ss. ad Legem Rhod. de jactu. l. 2. §. si navis a Pyratis re­demptae. for his redemption, by a general contribution.

But if a Pyrat shall feign himself stronded, and to duc­coy the Merchant Man for his releif, shall fire his Guns, or wave his Colours, who accordingly varies his course for his assistance, and the Pyrat enters him, for redem­ption of which he becomes a Slave to the Pyrat, there contribution shall not be made, and if the Ship loses any of her lading, the Master shall answer the same.

VI. A Pyrat attacques a Merchant Man, and enters her, for Redemption of which the Master gives his Oath, at a time and place to pay the Pyrat a summe certain; by some it hath been held, that the Master commits not [Page 37] perjury, if the price promised for redemption be not brought according to the Oath, because that a Pyrat is Leg. Bona si­des. D. Expos. not a determinate, but a common Enemy of all, with whom neither Faith nor Oath is to be kept, but that is no reason for the assoiling of the vow: for though the Person be deficient, yet the Just God is concerned; nor can that Person that hath promised a thing, satisfy his conscience after he hath once delivered it to him, to re­cover it back again; for the words in an Oath, as to God, are to be understood most simply, and with effect; and therefore he that returned secretly to the Enemy, and again departed, made not good his Oath concerning his return.

VII. If an English Man commit Pyracy, be it upon the Subject of any Prince or Republique in amity with the Crown of England, they are within the purview of the Stat. of 28 H. 8 and so it was held where one Win­terson, On a Com­mission groun­ded on the Stat. awarded. Rott. Admir. 28. Eliz. m. 23. Smith and others had robbed a Ship of one Matu­rine Gantier, belonging to Bourdeaux, and bound from thence with French Wines for England, and that the same was felony by the Law Maritime, and the Parties were convicted of the same.

VIII. And so it is if the Subject of any other Na­tion or Kingdom, being in amity with the King of England, commit Pyracy on the Ships or Goods of the English, the same is felony, and punishable by virtute of the Stat. and so it was adjudged, where one Careless Captain of a French Man of War of about 40 Tuns and divers others, did set upon four Merchant Men going from the Port of Bristoll to Carmarthen, did rob them of about 1000 l. Rott. Adm. anno 28. Eliz. m. 24. for which he and the rest were arraigned, and found guilty of the Pyracy.

But before the Stat. of 25 Ed. 3. if the Subjects of a Normandy was lost by King John, and out of the legeance of the King of England, & they were as now account­ed Aliens. 40. Assise placet. 25 p. Shard. Vide 2 H. 5 cap. 60. Forreign Nation and some English had joyned together, and had committed Pyracy, it had been Treason in the English, and felony in the Forreigners: And so it was said by Shard, where a Norman being Commander of a Ship, had together with some English committed robbe­ries on the Sea, being taken, were arraigned and found guilty; the Norman of felony, and the English of treason, who accordingly were drawn and hang'd.

[Page 38] But now at this day they both receive Judgement as felons, by the Laws Maritime.

IX. If the Subjects in enemity with the Crown of Eng­land be Sailers aboard an English Pyrat with other Eng­lish, and then a robbery is committed by them, and afterwards are taken, it is felony without controversy in the English, but not in the Strangers; for they cannot be tryed by virtue of the Commission upon the Statut, for it was no pyracy in them, but the deprdeation of an Ene­my, for which they shall receive a tryal by Martial Law, and Judgement accordingly.

X. Pyracy committed by the Subjects of the French King Selden Mare Claus. lib. 1. cap. 27 Case of Reginor Grim­bald in tempor. Ed. 1 Cited in 4. Inst f. 142. in c. of the Ad­miralty. or of any other Prince or Republique, in amity with the Crown of England upon the British Seas, are punishable properly by the Crown of England only, for the Kings of the same have istud regimen dominium exclusive, of the Kings of France, and all other Princes and States what­soever.

XI. If Pyracy be committed on the Ocean, and the Pyrats in the attempt there happen to be overcome, the Captors Injicere ma­num parcae tra­ [...]erunt debitum sibi, & sermone usus est juris; nam manus in­jectio dicitur, quoties nulla judicis a [...]cto­ritate, rem no­bis debitam vindicamus. Servius [...]1. Ae­neidos. are not oblidged to bring them to any Port, but may ex­oppose them immediately to punishment, by hanging them up at the main yard end before a departure; for the old natural liberty remains in places where are no judgements.

And therefore at this day, if a Ship shall be in on a Voyage to the West-Indies, or on a Discovery of those parts of the unknown World, and in her way be assaulted by a Pyrat, but in the attempt overcomes the Pyrat, by the Laws Maritime the Vessel is become the Captors; and they may execute such Beasts of prey immediately, withhout any solemnity of condemnation.

XII. So likewise, if a Ship shall be assaulted by Pyrats, Leg. extat. D. quod metus. and in the attempt the Pyrats shall be overcome, if the Captors bring them to the next Port, and the Judge openly rejects the Tryal, or the Captors cannot wait for the Judge without certain peril and losse, Justice may be Honorius & Theodosius: id­circo Judicio­rum vigor Ju­risque publici tutela in medio constituta, ne quis quam. sibi ipsi permittere valeat ultionem. Leg. nulli C. de Judaeis. done upon them by the Law of Nature, and the same may be there executed by the Captors.

[Page 39] Cajus Caesar being but a Private Man, pursued the Py­rats, by whom he formerly had been taken and spoiled by them, and making up to them with such a Fleet as he possible in haste could get ready, attaqued, burnt and destroyed their Ships, and the Men he brought back to an Anchor, where repairing to the Proconsul, to do Justice, Plutarch in Caesar. who neglecting, himself returned back, and there hang'd them up.

XIII. If a Pyrat at Sea assault a Ship, but by force is Ralph Williams indicted for the murder of one John Ter­rey, and Brid­ges, Black, and others, as ac­cessory. Rott. Admir. 28 Eliz. M. 24. Yel. f. 134 135. prevented entering her, and in the attempt the Pyrat hap­pens to slay a Person in the other Ship, they are all principalls in such a murder, if the Common Law hath Jurisdiction of the cause: but by the Law Maritime, if the Parties are known, they who gave the wound only shall be principalls, and the rest accessories; and where they have cognizance of the principal, the Courts at Common Law will send them their accessory, if he comes before them.

XIV. If a Spaniard robs a French Man on the High Res quae intra Praesidia per­ductae nondum sunt, quanquam ab hostibus oc­cupatae, domi­num non muta­runt ex Gen­tium jure. Gro­tius de Jure Belli ac Pacis cap 9. §. 16. Sea, both their Princes being then in Amity, and they likewise with the King of England, and the Ship is brought into the Ports of the King of England, the French Man may proceed criminaliter against the Spaniard to punish him, and civiliter to have Restitution of his Vessel: but if the Vessel is carryed intra Praesidia Trin. 17 Car. in B. R. Marsh's Reports. of that Prince, by whose Subject the same was taken, there can be no pro­ceeding civiliter, and doubted if criminaliter; but the French Man Leg. Hostes & Leg. Latro­nes D. de Cap. Leg. postlim. a Pyratis eod. Tit. must resort into the Captor or Pyrats own Country, or where he carried the Ships, and there proceed.

A Dutch Man, but Naturalized by the Duke of Savoy, and living at Villa Franca in his Dominions, procures a Commission from the States of Holland, and coming to Leighorn, there rid with the Colours and Ensigns of the Duke of Savoy, the Ship Dyamond being then in Port, and having received her lading, was afterwards in her Voyage home surprised by that Caper, and brought into Villa Franca, and there condemned and sold to one Poleman; The Caption was in 1665, [...] Adjudication passed 13 of May 1670, upon which there was an Appeal to the Duke of York; but nothing came of it. Rott. A [...]r. in an. supradict. which Ship afterwards coming for England, the Plaintiffs having notice, made a seizure, and upon Tryal Adjudi­cation passed for the Plaintiffs, the original proprietors: [Page 40] for though the Ship of War and the Captors were of Savoy, and carryed thither; yet being taken by virtue of a Dutch Comission, by the Law Maritime, she must be carryed infra Praesidia of that Prince or State by virtue of whose Commission she was taken.

Nor can such carrying of the Ensignes or Coulors, of the Duke of Savoy, who was then in amity with the Crown of England, or the Commander, though a Sub­ject of that Prince, make him a Pyrat, or subject them or those to whom they have transferred their interest of the Prize any waies to be questioned for the same crimi­naliter; for that the original quoad as to the taking was lawful, Bulstrod. 3. part. fo. 28.. Case of Samuel Pellagy. as one enemy might take from another; but civili­ter the same, for that the Captor had not entitled himself to a firme possession. Grotius de jure belli ac pacis lib. 3. cap. 9: §. 15, & 16.

And therfore in all cases where a Ship is by Letters of Marque or Pyracy, Mich. 8 Jac. in B. R. Brown­low 2. part. Westons C. if the same is not carry'd infra praesi­dia of that Prince or State, by whose Subject the same was taken, the Owners are not divested of their pro­perty, but may re-seize wheresoever they meet with their Vessels.

XV. If a Pyrat attaques a Ship, and only takes away some of the Men, in order to the selling them for slaves, this is a Pyracy by the Law Maritime; but if a Man takes away a Villaine or Warde, or any other Subject, and sells them for slaves; yet this no robbery by the Common Law.

XVI. If a Bale or Pack of Merchandise be delivered to a Master to carry over Sea to such a Port, and he Co. 3. Inst 109. lib. 8. f. 33. 6. Caleys c. but Black Maile & such sorts of taking in Cum­berland North­umberland, and Westmorland was Felony. 43. Eliz. cap. 13. goeth away with the whole Pack or Bale to another Port, and there sells and disposes of the same, ss. Nautae Caup. l. 1. sect. 3. Stabe the same is no felony.

But if he opens the Bale or Pack, and take any thing Glanvil. lib. 10. cap. 13. out, animo furandi, the same may amount to such a Lar­ceny, [Page 41] as he may be indicted in the Admiralty, though 13. E. 4. 9. it amounts not to a Pyracy.

Yet if such a Master of Ship shall carry the lading to Nautae Caup. Stab. lib. Sect. 7. sect. recepit. the Port appointed, and after retakes the whole Pack or Bale back again, this may amount to a Pyracy; for he being in the nature of a Common Carrier, the delivery Co. 3. Inst. 107, 108. had taken its effect, and the privity of the Balement is determined.

XVII. If a Pyrat shall attaque a Ship, and the Ma­ster 44. E. 3. 14. for the redemption shall give his Oath to pay a sum 4. H. 4. 2. §. ad Leg. Rhod. de jact. l. 2. §. si navis a Py­ratis redempta sit. certaine; though there be no taking, yet is the same Py­racy, by the Law Maritime.

If a Ship shall ride at Anchor, and the Mariners shall be part in their Ship-Boat, and the rest on the shore, and none shall be in the Ship, yet if a Pyrat shall attaque 14. E. 3. Cor. 115. her and rob her, the same is Pyracy.

XVIII. A Merchant procures Letters of Marque or Trin. 7. Jac. in B. R. Rolls A­cridg. 530. Reprise, and then delivers the Commission to Persons to endeavour a satisfaction; if such Persons commit Pyracy, the Vessel is forfeited without controversy: but the Mer­chant is no waies lyable to make satisfaction; for though Constit. Galliae tom. 3. tit. 3. constit. anni 1583. c. 44. the Superior shall answer for the actions of his Ministers or Servants, yet that is introduced by the Civil Law; but this question must be decided by the Laws of Nations, by virtue of which such Commissions are awarded or granted; Vide Sir Fran­cis Moore Re­ports Waltham vers. Mulgar. the which does exempt any Man to answer for the dam­mages of his Servants, unless he fore-knew that they would commit such a Pyracy or spoliation, or any way have abetted or consented to the same, which right may be forfeited, and the Civil Law let in to acquire satisfaction.

But if a Ship shall be at Sea and in necessity, if she at­taques another Ship, and takes out some Victuals, Cables, Ropes, Anchors or Sailes, (especially if that other Ship Leg. 2. sect. cum in eadem; D. ad l. Rhod. Leg. quo nau­frag. §. quod ait D. de in­cen. Leg. quem­admodum, sect. item. D. ad Leg. Aquiliam. 27. H. 8. cap. 4. may spare them) this is not Pyracy; but then the party must pay ready Money for such things, or give a Note or Bill for the payment of the value, if on this side the Straites of Morocco, within four months, if beyond, within twelve months.

[Page 42] XIX. By the Law Maritime, if Goods are taken by a Pyrat, and afterwards the Pyrat attaques another Ship, Per Leg. Pom­p [...]nus de acqu­ [...]el dom. but in the attempt is conquered, the Prise becomes absolute the Captor's, saving the account to be rendred to the Admiral. And it is accounted in Law a just caption of whatsoever may be got, or taken from such Beasts of prey, be the same in their own or in their Successors possession

But then an account ought to be rendred to the Ad­miral, who may (if they happen to be the Goods of the Fellow Subject of the Captors, or of Nations in A­mity with his own Soveraign) make restitution to the Per Leg. Mu­lier ea. cap. & post. 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 27 E. 3. c. 13. 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 Sigonius de Jure Rom. l. 1. cap. 11. 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 Mich. 13. Jac. in B. R. Sir Ri­chard Bingly's Case. Roll's Abridgement [...]. 530. 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 [Page 43] 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 Moore 756. offence, but the same ought especially to be named.

Though there be a forfeiture of Lands and Goods, yet But if the party be at­tainted before the Admiral, and not before the Commissi­oners, then there is no corruption of Blood or for­feiture of Lands; quod nota Co. Inst. 389. 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 Hyde and o­thers robbed the Ship of Captain Slu [...] of the Mer­chandize of one Mr. Mors, a Merchant in London; and they were indicted for it at the Common Law, and were found guilty of the same. Anno 23. Car. 2. 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, Sir Francis Moore 756. 1. Jac. par. 1044. 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 And the same was so ruled by the opinion of Sir Lyonell Jenkins, and the rest of the Lords the Judges, upon the Pyracy committed by Cusack and others, and denyed; and he was afterwards executed Anno 1674. vide 19. E. 3. Cor. 124. 9. H. 4. 2. Law; Felony super altum Mare is not pardoned; for though [Page 44] 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, 9. E. 4. 28. cited in Cokes 3. Inst. fo. 112. 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 28. Eliz. But­lers Case cited 3. Inst. fo. 113. 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 Marsh's Case 13 Jac. in B. R. 3 Bulstrod fo. 27. 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, Yelverton 134, 135. Sca­dings Case, Tench versus Harrison B. R. Styles 171, 340. 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. 50. E. 3. par. 2. Dors. 24. de audiendum & terminandum Mercatoribus super mare de­predatis. 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 [Page 45] of such depradations and robberies, and to punish Pat. 6. E. 1. m. 24 Dors. the Case of Will. de Dunstaple a Citizen of Winton. 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. Pat. 32. E. 1. m: 4. Dors. pro willielmo Perin & Domengo Perez Mercato­ribus.

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 made of the Danes Goods in his Ship; the Dane afterwards coming into England, and having in­telligence of the matter, prosecutedthe Fisherman in the Admiralty; and although Ignoramus was found, yet they there detained him; upon which a Habeas corpus was prayed, but denyed by My Lord Coke Chief Justice, for no other reason but because the truth of the matter was opened, which gave the Court cause to supect him of Pyracy; otherwise if he had moved barely upon the Igno­ramus found, quod nota Pasch. 13 Jac. in B. R. the King vers. Marsh Bulstrod 3. part. fo. 27.

CHAP. V. The Right of the Flagg, as to the acknowledg­ing the Dominion of the British Seas.

  • I. Considerations general as in re­ference to the same.
  • II. Whether Princes may have an exclusive property in the Sea.
  • III. That such an exclusive Domi­nion may be, and proved.
  • IV. Of the Sea, whether capable of Division, as the Land general.
  • V. Considerations general as in re­ference to Maritime Cities touch­ing Sea Dominion.
  • VI. Of the Sea, by reason of its in­stability, whether capable of sub­jection.
  • VI. Of the Dominion of the British Sea asserted long before, and ever since the Conquest of this Isle by the Romanes.
  • VIII. The duty of the Flagg, but a consecutive acknowledgement of that right, and of the Ordi­nance of Hastings declaring that Customary obeysance.
  • IX. Considerations had on some Treaties, in reference to the as­serting the duty of the Flagg.
  • X. Of the extent how far that duty is required and payable.
  • XI. Of the duty of the Flagg, not a bare Honourary salute, but a Right.
  • XIII. Of the importance and va­lue of the same as well in Nations Forraign, as in England.
  • XIII. Of the duty of the Flagg not regarded as a civility, but commanded as a duty.
  • XIV. Of the importance of that acknowledgement.

I. AFter the Writings of the Illustrious Selden, cer­tainly it's impossible to find any Prince or Repu­blique, or single Person indued with reason or sence, that doubts the Dominion of the British Sea, to be intirely sub­ject to that Imperial Diadem, or the duty or right of the Flagg, which indeed is but a consecutive acknowledgment of that antient Superiority: yet there has not been want­ing some, who though they have not questioned the former, have highly disputed the latter.

But there are some fatal periods amongst our Northern Regions, when the Inhabitants do become so brutal and prejudicate, that no obligation of Reason, Prudence, Conscience or Religion-can prevail over their passions, especially if they become the devoted mercinaries of an im­placable Faction; in opposition to all that can be called [...]vestein. either just or honourable, we need not reap up the car­riage [Page 47] of that late insolent Son of a Tallow Chandler, whose deportments made him no less insupportable at Home, then he was amongst Forreign Princes; the testimonies of his greatest parts and abilities, being no other then mo­numents of his malice and hatred to this Nation, and records of his own folly: But Princes are not to be wrangled out of their antient Rights and Regalities by the subtil argument of Wit and Sophistry; nor are they to be sup­planted or overthrown by malice or Arms, so long as God and Good Men will assist, in which His Sacred Ma­jesty did not want, when he asserted his Right with the Blood and lives of so many thousands that fell in the dispute.

II. That Princes may have an exclusive property in the Soveraignty of the several parts of the Sea, and in the pas­sage Fishing and shores, is so evidently true by way of fact, as no Man that is not desperatly impudent can deny it, the considerations of the general practise in all Maritime Coun­tries, the necessity of Order in mutual Commerce, and the Safety of Mens persons, Goods and lives, hath taught even the most Barbarous Nations to know by the Light of Human reason, that Laws are as equally necessary for the Government and preservation of the Sea, as those that ne­gotiate and trade on the firm Land; and that to make Laws and to give them the Life of Execution, must of necessity require a Supream Authority, for to leave every part of the Sea and shores to an Arbitrary and promiscuous use, with a correcting and securing power in case of wrong or danger, is to make Men with the like condi­tion of the Fishes, where the greater devour and swallow the less.

And though the Sea is as a High-way, and common to all; yet it is as other High-waies by Lands or great Ri­vers are, which though Common and Free, are not to be usurped by private Persons, to their own entire service; but remain to the use of every one, not that their Free­dom is such, as that they should be without protection or See that Plea of Chizzola for the Venetian Soveraignity of Adriatique Sea, at the end of Mr. Selden. Government of some Prince or Republique, but rather not exclude the same; for the true Ensign of liberty and free­dom is protection from those that maintain it in liberty.

IV. And as the Sea is capable of protection and Go­vernment, so is the same no less then the Land subject [Page 48] to be divided amongst Men, and appropriated to Cities and Potentats, which long since was ordained of God as a thing most natural, whence it was that Aristotle, when he said, That unto Maritime Cities the Sea is the Territory, because from thence they take their sustenance and defence; a thing which cannot be unless part of it might be appro­priated in the like manner as the Land is, which is di­vided betwixt Cities and Governments, not by equal parts, or according to their greatness, but according as they are able to Rule, Govern and defend them: Berne is not the greatest City of Switzerland; yet he hath as large Territory as all the rest of the twelve Cantons put togetether: The Cities of Noremberg and Genoa are very rich and great, yet their Territories hardly exceed their Walls: and Venice the Mistress and Queen of the Medi­terranian, was known for many years to be without any manner of possession in the firme Land.

V. Again on the Sea, certain Cities of great force, The substance of what was alleadged by the Hansia­tique Towns, at the Vene­tians asserting of the Sove­raignty of the Adriatique, In­ter res commu­nes, uti ipsi Imperator nu­merat mare, & ideo nemo in mari piscari, aut navigare prohibitur, & adversus inhi­bentem compe­tit actio injuriarum, l. 10. si quis in mare, l. injuriarum, sect. ult. de injuriis. Sin littora quoque communia sunt, l. 2. re divis. Quia accessorium sunt maris, & accesso­rium sequitur naturam Principalis, l. 2. de peculio. legat. c. accessorium de reg. jur. in 6. Ad littus maris igitur accedere quivis potest, non piscandi tantum gratia, sed etiam aedi­ficandi & occupandi causa, l. quod in litt. de acquir. rer. Dom. l. in litt. ff. nequid in loc. pub. Jo. Angelius I. C. de respub. Hansiat. par. 6. f. 85. Edit. Francof. an. Dom. 1641. But these arguments were easily answered by the Venetian Lawyers; Quemadmodum com­munio literorum restringitur ad populum, a quo occupata sunt, lib. 3. sect littora D. de. quid in loc. pub. Ita etiam communio maris: adeo ut per mare a nemine occupatum na­vigatio sit omnino libera: per mare autem occupatum ab aliquo Principe ii liberam h [...] ­beant navigationem qui sunt illi Principi subjecti; alii vero catenus, quatenus idem [...]rinceps permittit. Julius Pacius de Dom. maris Adriatici. have possessed large quantities thereof; others of little force, have been contented with the next Waters.

Neitheir are there wanting examples of such, notwith­standing they are Maritime, yet having fertile Lands ly­ing on the back of them, have been contented therewith without ever attempting to gain any Sea Dominion; others who being awed by by their more mighty Neighbours, have been constrained to forbear any such attempt; for which two causes a City or Republique, though it be Maritime, yet it may remain without any possession of the Sea. God hath instituted Principalities for the mainte­nance of Justice to the benefit of Mankind; which is ne­cessary to be executed as well by Sea, as by Land: Saint Paul saith, that for this cause there were due to Princes Customs and Contributions.

[Page 49] It would be a great absurdity to praise the well Govern­ment and defence of the Land, and to condemn that of the Sea; nor doth it follow because of the vastness of the Sea, that it is not possible to be governed and protected, but that proceeds from a defect in Mankind; for Deserts though part of Kingdoms, are impossible to be governed and protected, witness the many Deserts of Africk, and the immense vastities of the New World.

VI. As it is a gift of God, that a Land by the Laws and publique power be ruled, protected and Governed: so the same happens to the Sea; and those Grotius mare liberum. Com­munio parit di­scordiam quod communiter possidetur viti [...] naturali negli­gitur: Habet communio re­rum gerenda­rum difficulta­tem, Leg. pater. §. dulcissime. Leg. 2. are deceived by a gross equivocation, who aver that the Land by rea­son of its stability ought to be subjected, but not the Sea, for being an unconstant Element, no more then Air; forasmuch as they intend by the Sea and the Air all the parts of the fluid Elements, it is a most certain thing, that they cannot be brought under subjection and Govern­ment, because whilst a Man serves himself with any one part of them, the other escapes out of his power; but this chanceth also to Rivers, which cannot be detained; but one is said to rule over a Sea or River, it is under­stood not of the Element, but of the Scite where they are placed: the Water of the Adriatique and British Seas con­tinually runs out thereof, and yet is the same Sea as the Tiber, Poe, Rhine, Thames or Severne, are the same Ri­vers they were a thousand years since; and this is that that is subject to Princes by way of Protection and Go­vernment.

Again, it would seem ridiculous if any Man would assert that the Sea ought to be left without Protection, so that any one might do therein well or ill, robbing, spoiling, and making it unnavigable, or whatsoever should seem fitting in their eyes; from all which it is apparent that the Sea ought to be governed by those by whom it most properly appertains by the Divine disposition.

VII. When Quae omnia fore Gallis e­rant incognita, neque enim te­mere praeter mercatores adi [...] ad illos quis­quam, neque eis ipsis quidquam praeter oram maritima [...] at­que eos Regio­nes quae sunt contra Gallum, notum est. Com. Gall. Bell. lib. 4. fol. 72. m. 8. Julius Caesar first undertook the Inva­sion of this Isle, he summoned the Neighbouring Galls to inform him of the Shores, Ports, Havens and other things convenient that might acelerate his intended Conquest; but from them nothing could be had, they answering, All commerce and traffick, and visiting their Ports was interdicted to all Nations before license had; nor could any [Page 50] but Merchants visit the same, and then had they places Galls Town near Yarmouth, being then, as is conceived, one of the common pla­ces of Mart or Commerce for the Galls. assigned them whether they should come; nor was this Dominion that the Britains then used, commanded with­out a Naval Force; the sight of which when Caesar saw, he preferred them before those of the Romans: for upon that occasion it was that Caesar, having seen those Au­xiliary Squadrons, which the Britains sent the Gauls in their Expeditions against the Romans, took occasion to Quod omnibus fere Gallinis hostibus nostris inde sub mini­strata auxilia intelligebat. find out that warlike people, whose bare auxiliary aide shook the Flower of the Roman Squadrons.

And when the Romans became Conqueroues of this Isle, the same Right or Dominion was during all their time, supported and maintained when they sailed round their new atcheived Conquests in the time of Domitian, Agricola, Tacit. in vita Agricol. giving terrour to all the neighbouring Nations.

But when that Mighty Empire became subject to fate, and this Nation by the continual supply of Men, which went out of the Kingdom to fill up the contingencies of the Roman Legions, we became at last so enfeebled as to render us a prey to the Saxon; which Empire when ha­ving settled peace with their Danish Neighbours, and quieted their own home, bred quarrells; and having re­duced the several petty Kingdoms of their Heptarchy un­der one Diadem, they forgot not to assume their antient Right and Dominion of the Seas; as did the most noble Edgar, who kept no less a number then 400 Sail of Ships to vindicate and ascertain his Dominion, giving prote­ction Altitonantis Dei largi-flua [...]ementia, qui est Rex Regum; Ego Edgarus Anglorum Ba­sileus, omni­umque rerum Insularum Oce­ani quae Bri­tanniam cir­cumjacent, cunctarumque Nationum quae infra eam includuntur Imperator & Dominus, ex Charte fundam. Eccles Wigor: Sir John Burroughs fo. 21. Idem quoque Edgarus 400. Naves congregavit, ex quibus omni anno post Festum Paschale 100. Naves ad quamlibet Angli partem statuit; sic [...]state Insulam circumnavigavit; Hieme vero indicia in Pro­vincia exercuit, ex Ranulph. Cestrens. fo 22. J. B. to the peaceable, and punishment to the offender: nor did his Successors Etheldred, Canutus, Edmund, and those that followed of the Danish Race, any waies wave, relinquish or loose that Royalty, but obsequiously main­tained the same down to the Conqueror, and from him since for some upwards of 12 hundred years in a quiet and peaceable possession.

To mention the Antient Commissions, and exercise of this Soveraign power, Safe-conducts, Writs of seizure, Arrests, Records of Grants, and Licences to pass through [Page 51] the Sea, and to fish, Parliament Rolls and the like, So fully pro­ved by Mr. [...]el­den, that it would be im­pertinent in this Tract to rehearse the authorities he vouches. Vide Jac. us­serius Armach. Epistg. Hiberniae Silloge p. 121, 163. would make a Volum; in a word, if Right of Prescription, suc­cession of inheritance, continual claim, matter of fact, consent of History and Confessions, even from the mouths and pens of Adversaries, be of any moment to the asserting of a Tittle, his Sacred Majesty may be presumed, to have as good a Tittle to that, as the most absolutest Monarch this day on Earth, hath to what ever he can claim or does enjoy.

VIII. Now the duty of the Flagg is no more but a consecutive acknowledging of that Right and Dominion of the British Seas, (not as a bare Honorary Salute or Ce­remony, but as an absolute sign of the right and Soveraignty of those Seas where they are oblidged to strike Sail:) are in him to whose Flagg the Vail, and pay that duty to; and in substance is no more but that the King grants a gene­rall licence for Ships to pass through his Seas, that are his Friends, paying that obeysance and duty, like those services when Lords grant out Estates, reserving a Rose or pepper Corn, the value of which is not regarded, but the rememberance and acknowledging their Benefactors right and Dominion.

That this hath been an Antient Custom, alwaies wait­ing on that Soveraignty, appears by that memorable Re­cord upwards of 400 years since made, where it is de­clared by King John what the Antient Custom was, in these words; That if a Lievtenant in any Uoyage, be­ing Inter Leges Marinas sub fine anno regni Regis Johannis secundo, en­titled Le Or­dinance al Ha­stings. ordained by Common Councel of the Kingdom do en­counter upon the Sea any Ships or Uessels, laden or unladen, that will not strike vail and their Bonets at the Commandment of the Lievtenant of the King, but will fight against them of the Fleet, that if they can be taken, they be reputed as Enemies, and their Ships, Uessels and Goods taken and forfeited as the Goods of Enemies, although the Masters or Possessors of the same would come afterwards, and alledge, that they are the Ships, Uessels and Goods of those that are Friends to our Lord the King, and that the Common People in the same be chastised by imprisonment of their Bodyes for their Rebellion, by discretion.

Thus this Immemorial Custom was by that prudent Prince affirmed, the which hath been alwaies before, and [Page 52] ever since, (without interruption by all Nations) constantly pay'd to the Ships of War, bearing the Royall Standard and other of his Majesties Ships, wearing his Colours and Ensigns of Service; he knowing that undoubted Maxim of State, that Kingdoms are preserved by reputation, which is as well their strongest support in Peace, as their chiefest safety in time of War, when once they grow dispised, they are either subject to forreign invasions, or domestique troubles, the which (if possible) that Prince would have prevented, but he lived when those Celestial Bodies which govern the action of Princes seem to frown on the most Virtuous and Wise.

IX. And as there is no Nation in the World more tender and jealous of their honour then the English; so none more impatiently tollerate the diminution thereof. Hence it was that in all Treaties before, almost any thing other was assertained the Dominion of the Sea, and strick­ing the Top-fail was alwaies first provided for.

In the Year 1653, after the Dutch had measured the length of their Swords with those of this Nation, and being sensible of the odds, and having by their four Em­bassadours most humbly besought Peace, this very Duty of the Flagg was demanded by the 15th. Article, in these words:

That the Ships and Uessels of the said United Pro­vinces, as well Men of War as others, he they in single Ships, or in Fleets meeting at Sea with any of the Ships of this State of England, or in their service, and wearing the Flagg; shall strike the Flagg, and lower their Top-sail, untill they be passed by, and shall like­wise submit themselves to be visited if thereto required, and perform all other respects due to the said Common Wealth of England, to whom the Dominion and Sove­raignty of the British Seas belong. 15 November 1653.

This was so peremptorily demanded, that without the solemn acknowledging of the Soveraignty over the British Seas, there was no Peace to be had; that as to the acknowledging of the Soveraignty and the Flag, they were willing to con­tinue the Antient Custom, but that of Visiting was somewhat hard: 'tis true the latter Clause was by the Usurper waved, Le ab Atzma. fo. 847. for reasons standing with his private interest; but the first was made absolute, by the 13 Article between Him [Page 53] and that Republique, and from thence it was transcribed to the 10 Article at White-Hall, and afterwards into the 14 September 1662. 19 Article at Breda, and from thence into the 6th. Article made last at Westm. and that Clause of searching of each others Ships made reciprocate, by the 5 Article made in the December the 18 1674. S. V. Marine Treaty at London; but that extends not to Ships of War, but only the Ships of Subjects.

X. By the British Seas in the Article about the Flagg, are meant the four Seas, and not the Channel only; for in the 16 Article they did express what was meant by the British Seas. But now by the last Treaty at Westm: the dominion is ascertained from Cape Fi­nisterre to the middle Point of the Land Van Staten in Norway, 9 Feb. 1673/4.

That the Inhabitants and Subjects of the United Pro­vinces map with their Ships and Uessels furnished as Merchant Men, fréely use their Navigation, sail pass and repass in the Seas of Great Britain and Ireland, and the Isles within the same, commonly called the British Seas, without any wrong or injury to be offered them by the Ships or People of this Common-wealth; but on the contrary shall be treated with all love and Friendly offices, and may likewise with their Men of WarArtic. 16. in the Treaty of 15 Nov. 1653. not excéeding such a number as shall be agréed upon—sail, pass and repass through, the said Seas, to and from the Countries and Ports beyond them; but in case the said States General shall have occasion to pass through the said Seas with a greater number of Men of War, they shall give thrée Months notice of their intention to the Common-wealth, and obtain their consent for the passing of such a Fléet, for preventing of Iealousy and misunderstanding betwixt the States by means thereof.

The first part of this Article doth plainly set out the extent of the British Seas, and that it is not the bare Chan­nel alone that comprehends the same, but the four Seas, and the same is further explained in the Great Case of Constables, Hill. 29 Eliz. B. [...]. the Queen and Sir John Constables Case. Leonard 3. part 72. where the Dominion of the Queen (be­fore the union) as to the Seas, did extend midway be­tween England and Spain; but entirely between England and France; for the French never had any right or claim to the British Seas: for in the Wars between Edward the First and Philip the Fair, (all Commerce on both sides being agreed to be free, so that to all Merchants what­soever Selden de Dom. maris l. 2. cap. 14. 27, 28. there should be induciae, which were called suffe­rantia Guerrae, and Judges on both sides were appointed [Page 54] to take cognizance of all things done against these Truces, and should exercise Judicium secundum Legem Mercato­riam & formam sufferantiae: it was contained in the first provision of that League, that they should defend each others Rights against all others; this afterwards occa­sioned the introducing that Judgement in the same Kings time, (before those Judges, chosen by both the said Princes by the Proctors of the Prelates, Nobility and High Admi­ral Cooke 4. Inst. fo. 142. of England, and all the Cities Towns and Subjects of England, &c. unto which were joyned the suffrages of the most Maritime Nations, as Genoa, Catalonia, Spain, Al­main, Zeland, Holland, Freisland, Denmark and Norway, and divers other Subjects of the Roman Empire,) against Reginer Grimbald, then Admiral of France, for that there being Wars between Philip King of France and Guy Earl of Flanders, he had taken Merchants upon those Seas, in their Voyage to Flanders, and despoiled them of their Goods; whereas the Kings of England and their Predeces­sors, (as they all joyntly do declare and affirm without all controversy beyond the memory of Man,) have had the Supream Government of the English Seas, and the Islands thereof.

Praes [...]ribendo scilicet Leges Statuta atque interdicta armo­rum, naviumque alio ac Mercatoriis, armamentis instructa­rum, causationes exigendo, tutelam praebendo, ubicunque opus esset, atque alio constituendo quaecunque fuerint necessaria ad pacem, jus & equitatem conservandam inter omnimodas vates tam exteras quam in Imperio Anglicano comprehensas quae per illud transierint; supremam iisdem item fuisse atque esse tute­lam; A universal consent of all Nations. merum mixtum Imperium in juredicendo secundam di­ctas Leges Statuta praescripta & interdicta, aliisque in rebus quae ad summum Imperium attine in locis adjudicatis.

By which memorable Record, it apparently shewes that the Kings of England have hand istud regimen & dominium exclusive of the King of France bordering upon the same Seas and of all other Kings and Princes whatsoever: and 4. Instit. 142. Seldencap. 27 Mare clausum. it was there adjudged that Grimbalds Patent was an usur­pation on the King of England's Dominion, and he ad­judged to make satisfaction, or if he proved unable, then Sir John Bur­roughs fo. 42. the King his Master should and that after satisfaction he rendred to punishment.

And as to the second part of the Articles of giving [Page 55] notice, it was but an Act of Common prudence, their late unexpected visit which they then gave, put the English to some surprise; but they facing the Battavian, soon made them know that they were as capable of beating them home, as they were then daring in coming out, and were not to be braved out of a Dominion and Right, which their Ancestors had with so much glory acquired and asserted.

XI. By the Article of the Offensive and Defensive League between France and the United Provinces, it was Anno 1635. agreed, That if at any time the Dutch Fleet (—which were to scoure the French Coasts in the Mediterranean from Leo ab Aitzma Hist Tract. pa­cis Belgi pag. 177. Edit. Lug­duni Batavor. quarto 1654. Pyrats) should at any time meet the French, the Admiral of the Dutch was to strike his Flagg and lower his Top-Sail at his first approach to the French Fleet, and to salute the Admiral of France with Guns, who was to return the said salute by Guns also, as was usual when the Dutch and English Fleet did meet.

Only in this the right of the Flagg of England differs from that claimed by the French; for if there had been a failer on the part of the Dutch, of paying that respect to the French, the same would have amounted to no more but a breach of the League: but the not striking to the King of Englands Flagg, is open Rebellion; and the Ar­ticle does so signify, for it is there mentioned as a Right and Soveraignty, not a bare Dominion only, like that of Jerusalem to the King of Spain.

XII. The Duty of the Flagg that hath been so con­stantly pay'd to our Ancestors, is of such advantage to the continuing the renown of this Nation, that it serveth to imprint new reverence in Forreigners that render it, and adds new courage to those of our Sea Men that exact it; and since we know how much it imports a State that it be reve­renced abroad, and that Repute is the principal support of any Government, it equally influenceth the Subjects at Home and Forreign Allies abroad: And as there is no Nation in the World more tender of their Honour then the English, so none more impatiently tollerate the diminution thereof, with what resentments would not only the more generous and Noble, but even the Popular and vulgar Sea Men de­test this or any succeeding Age should they remit or loose that Regality; those acknowledgements which their Pre­decessors with so much Glory asserted, and the neglect [Page 56] whereof was alwaies punished as open Rebellion: the in­dignity of such an Action being sufficient to enflame the whole Kingdom, the consideration of which besides his Sacred Majesties own Royal inclination to the same, and his evident testimonies never to abandon a ceremony of so high a concernment; witness the exposing the one half of his own heart his Royal Highness, in the asserting the same, with such Fleets and in such Battles, that no Age It is no po­licyto attempt the change of old Customs and usages, even errors & abuses are up on such an ac­count legally tollerated. In omnibus rebus vetustas ipsa plurimum habet dignita­tis: ita ut Massalienses quorum praestantissima creditur fu [...]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. or time cannot shew a memorial of the like, are cau­ses sufficient to create in us new flames of love to those Royal Patriots and Defenders of our Rights. Private Per­sons move in another sphear, and act by other Rules then Soveraign Powers; the regard of credit with them, may oftentimes yield to those of utility or other motives; the Publique receives little injury thereby, or is their wisdom questioned for such punctilio's, if they relinquish them Ceteris mor­talibus in eo stare consilia, quid sibi con­ducere putent: Principium di­versam esse sor­tem, quibus praecipua rerum ad summam di­rigenda. Taci­tus Annal. l. 4. for other Imoluments or Peace sake; but Soveraigns can­not so transact, their subjects the People participate in their Honour and indignities; they have a property, a direct Right in the former Vide the Earl of Shastsbury's Speech to the Parliament 1672.: Soveraignes cannot alienate or suffer their Honours to be impaired, because it is not really theirs, it appertains to the Nation universally, and they are all effectually injured by such transactions, either because the indignity doth really extend to them, or because the Government and Authority is thereupon weakned and pre­judiced, which is the greatest of Civil detriments that can Si fama tua videtur neces­saria, rectam muneris tui ad­ministrationem non potest condonare. Lessius de Inst. l. 2. c. 11. dub. 24. §. 26. befall a People, though ordinarily they are not aware thereof.

As Prudence doth thus distinguish betwixt the demeanor of Private and Publique Persons, so doth Charity it self; for though the Gospel precepts do oblidge particular Per­sons to bear injuries and contumelies with patience, and to surrender even the Coat as well as the Cloak; yet is not this so to be construed, as if even Private Christians were to yield up their Civil Rights to every insolent that would incroach upon, and usurp them, or that they were [Page 57] to deprive themselves of those Reparations, which the Law and Government affords them; neither is it so to be un­derstood as if the Civil Magistrate in Christendom might not secure himself of that obedience and reverence, which is due unto dignity, but bear the Sword in vain.

XIII. This being the value which this Nation did al­waies place upon the Right of the Flagg, the which they never did regard it only as a Civility and Respect, but as a principal Testimony of the unquestionable Right of this Na­tion to the Dominion and superiority of the adjacent Seas, acknowledged generally by all the Neighbour States and Princes of Europe, and must be pay'd and ackowledged by all Princes in the World, that shall be or pass on the same. Selden Mare Clausum l. 2. cap. 24.

The Maritime Dominion by the Laws of England were alwaies accounted the Four Seas, such as are born thereon, are not Aliens, and to be within them is to be within Fitzherberts protection tit. 46. the Legeance of the King and Realm of England.

The Records in the daies of Edward the 3d. and Henry Seld. ibidem c. 23. the 5th. proclaim it, that those Kings and their Proge­nitors had ever been Lords of the Seas: and amongst those Co. 4. Iustit. fo. 142. many great Instances of proving the Soveraignty of the same, is that famous Record of Edward the first and Phillip the Fair of France, in which the Procurators of most Na­tions Bordering upon the Sea thoroughout Europe, as the Genoeses, Catalonians, Almaines, Zelanders, Hollanders, Freislanders, Danes and Norwygians, besides others under the Dominion of the Roman German Empire, where all joyntly declare, That the Kings of England, by right of the said Kingdom from time to time, whereof there is no memorial to the contrary, have béen in peaceable possession of the Soveraign Lordship of the Seas of England, and of the [...]es within the same, with power of making and esta­blishing Laws, Statutes and Prohibitions of Arms, and of Ships otherwise furnished then Merchant Men use to be, and of taking surety, and affording safe-guard in all cases where néed shall require, and of ordering all things necessary for the maintaining of Peace, Right and Vide part of the Record in fo. 54. Equity among all manner of People, as well of other Dominions, as their own passing through the said Seas, and the Soveraign Guard thereof.

By which it plainly appears, That the King of England had then been in peaceable possession of the said Dominion [Page 58] by immemorial prescription, that the Soveraignty be­longeth unto them not because they were Domini utriusque ripas,) when they had both England and Normandy, and were Lords of both shores; (for Edward the first at that time had not Normandy) but that it is inseparably appen­dant And 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. and annexed to the Kingdom of England, our Kings being Superior Lords of the said Seas, by reason (as the very Record mentions) of the said Kingdom, and since that the Soveraignty of the Sea did alwaies appertain unto the English King, not in any other Right then that of the Kingdom of England; no Prince or Republique ought or can doubt the Tittle by which our present claim is de­duced; 'tis in right of Britannia, that the same is chal­lenged, 'twas in that right the Romans held it: the claim justified Ed. 3. and his Rose Noble; though there are other reasons regarding to the Lancastrian Line, which yield a Colour for the use of the Port-cullis in the Roal Banners of England; yet as in reference to the Maritime Dominion Henry 8th. did embellish his Navy Royal therewith, and Queen Elizabeth stamped it upon those Dollars which she designed for the East India Trade, signifying her Power Anno Domini 1600. of shutting up the Seas, if she thought fit (as by a Port-cullis) with the Navy Royal; this Dominion of the British Seas did Authenticate the Proclamation of King James, ordaining the Flemish at London and Edinborough to take licence to Fish, this justified the like Proclamation Anno Domini 1609. by the late Royal Martyr King Charles, and warranted by the Earl of Northumberland in his Naval Expedition. Anno Domini 1636.

That Prescription is valid against the claims of Soveraign Princes cannot be deny'd, by any who regard the Holy Will. Fulbecks Pandects of the Law of Nations c. 4. Scripture; reason, the practise and tranquillity of the World: and that true it is, the modern Dutch have pretended, if not dared, to challenge the Freedom to Fish in the British The King a­gainst Sir John Byron Bridg­man fo. 23, 24, 25. Seas, by Prescription; but it is likewise as true that Pre­scription depends not upon the Corporeal but the Civil pos­session, and that is retained if claim, be but made so often [Page 59] as to barr the Prescription, the which hath been alwaies made evident; first by frequent Medals, next by punish­ing those that refused it as Rebels, by guarding it of it; and lastly by giving Laws time out of mind on it, which evidently proves that the Civil possession is not relinquished; & our Kings constantly claiming the Dominion of the same, none else pretending, all Nations acknowledging it to be in them, and the same never questioned, till those mo­dern Dutch (of yesterday) arose.

XIV. The importance of the Dominion of the Sea unto this Nation, is very great, for alone on that de­pends our Security, our Wealth, our Glory; from hence it is that England hath a Right to all those advantages and emoluments, which the Venetian Republique draws from the Adriatique Sea, where the Ships of the Grand Seignior, of the Emperor, King of Spain, and Pope, pay Customs, to maintain those Fleets, which give Laws to them within the Gulfe, 'tis hereby that the English can shut up or open these Seas for Ships or Fleets to pass or re­pass them; whereto Queen Elizabeth had so special a regard, that when the King of Denmark and the Han­siatique Towns sollicited her Majesty to permit them free passage, they transporting Corn into Spain, she refused them; and when a Protestant Fleet of Hamburgers and Vide postea in Chap. of Cu­stoms. others, had presumed to do so notwithstanding her pro­hibition, she caused her Navy Royal to seize, take, burn June 30. anno 1598. and spoil them, when they were passed her Maritime Ter­ritory, within sight of Lisbon; yielding this reason for her justification, that they not only relieved her Enemy with provisions, but had presumptuously made use of her Seas, without obtaining her Royal Permission for so doing: 'tis from hence that the Crown of England can justly de­mand an account of any Ship or Ships occurring in those Seas, what's their Business, and what their intentions are; and prohibite any Prince or Reipublique, to enter there with potent Fleets, without praeacquainting his Majesty and obtaining his Royal Permission; without which Dominion and Soveraignty, England can never live secure on shore, it being easy for any Forreign Fleets to amuse us with specious pretenses, and in their passage to invade and surprise us: Thus whilst the Turk pretended to sail for Malta, he occasionally possessed himself of Ca­nea, [Page 60] in the Isle of Candia; many such presidents do occur in History: And in fear of such surprizal, the Athenians Selden lib. 1. cap. 11. (being Lords at Sea) did exclude the Persian Monarchs from sending any Ships of War into any part of the Ae­gean Sea, Rhodian, Carpathian and Lydian Seas, and that which tends to the West, towards Athens; the like cau­tion was used by the Romans against Antiochus and the Carthaginians; and the Turk prohibits all Nations, saving his Vassals, to enter the Black Sea or Pontus Euxinus, and also the Red Sea; and that 'tis by virtue and force Alber. Gentil. Hisp. Advocat l. 1. c. 14. vide Mr. Secretary, Cookes Letter to Sir William Boswell April 16, 1635. of this right that the British Nation can drive on their own Commerce, navigate themselves, and permit others securely to trade with them; 'tis true that the Dutch have presumed some years since, to violate the security of the British Seas, by the attacking the Allies of Eng­land, not only within the British Seas, but in her Har­bours, attempting to pursue a French Vessel up almost to London, and have more then once 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. Al [...]. Gent. Hisp. Advocat, l. 1. 3. 14. attacqued the Spanish Fleets in her Ports, under the protection of her Castles, and that against the Laws of Nations, and the Peace of Ports, in which for the time they seemed to cloud the Honour of the Nation, but satisfaction for indignities of that nature, though slow, yet are sure, and should such as those have been longer tollerated: Beloved Britannia must become a prostitute, by a Confederation of those States, or take Pass-ports for her Commerce; But the Royal Martyrs goodness was no longer to be trod on, his Heart and his Cause were good, and though those unhappy times (which were crooked to whatsoever seem'd straight) did hinder the accomplshiments of his entire intention for satisfaction; yet those whom the just God of Heaven was pleased for a time to permit as a punishment to this Na­tion to rule, did not want in the fulfilling; for so soon as he was pleased to stay the fury of the Intestine Sword, their hearts took fire from that flame that had formerly been kindled in that Royal Brest, and having prepared a Fleet, in order to the treating as Souldiers with Swords in their hands, they were in the like manner assaulted Anno Domini 1552. in their Territories in the Downes; (but the Dutch found then what it was (though two for one) to assault a British Lyon at the mouth of his Den,) intending, if possible, to have destroyed the English Power, but were frustrated in [Page 61] their design, being severely beaten home to their own doo [...] [...]d afterwards those that then had got the English [...]d in their hands, begun to consider that the Vict [...]y [...]ust be pursued, as a season fit to assert their Antien [...] [...]ight and Soveraignty of the Sea, and then those people thinking that the odds before was not enough to destroy the Bri [...] Fleet, they equipt out a Fleet greater and far more numerous then the English, under the Admirals Van Trump, De Witt, the two Evertsons, and Ruyter; but they suffered the same fate as their former, about some 34 of their Ships on the Coast of Flanders, burnt and Jun̄e 2 and 3. taken, and the rest chased home to their Ports; and not long after followed the total defeat of their Naval forces, About the 8 of [...]g. 1653, accompanied with the death of Van Trump by the English, under the Admirals Blake and Monk, who had sunk and fired about 30 more of their Ships of War (no quarter be­ing given till the end of the Bataill) six Captains, and about a thousand Men were taken prisoners, and about six thousand slain of their Presomptions: since (amongst other things) in denying the duty of the Flagg, and of what punishment and check they have had for the same, to what condition they have been reduced and made, to acknowledge that Dominion and Superiority, to that Crown (under which their Ancestors humbly 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. besought the acce­ptance of the Soveraignty of the Netherlands, might be an­nexed and protected) is now fresh in our memories, so high and of so great Importance is this Dominion and Soveraignty signified by the Duty of the Flagg in the British circumjacent Seas.

CHAP. VI. Of the Right of Pressing or seizing of Ships or Mariners, for service publique.

  • I. That such Right is excepted in the Law of Dominion.
  • II. Whether the Ships of Nations who are in war at the same time may be pressed, the danger being equal.
  • III. Whether this Right extends to Ships to fight, and no [...]more, or gives a power to trade.
  • IV. By the Laws of England the King may seize.
  • V. The reason why such power was ves [...]ed in the Admiral.
  • VI. That such a right of compelling Men to serve in Naval Expe­ditions may be.
  • VII Objections legal refuted.
  • VIII. Of the antient punishment of such deserters of the Kings service.
  • IX. Whether it be lawful for a pri­vate Man to execute Justice on such as fly and desert the service.
  • X. Where a General Commission is given to Men to execute Ju­stice.

I. THe Civil Law, though it can command nothing which the Law of Nature forbids, nor forbid what it commands; nevertheless it may circumscribe natural li­berty, and prohibite what was naturally lawful: and also by its force antevert that very Dominion, which is na­turally to be acquired: Hence it is that Princes by the Law of Nations may acquire a Right of use, of things that do belong to private Persons, for property hath not (as hath been said) swallow'd up all that Right, which rose from the Common State of things; for as all Laws are to be construed as neer as possible to the intention of the Makers, so we must consider what was the mind of those that first introduced singular Dominions; now the Rule to construe that, must be as neer as possible to Enna, aut ma­lo aut necessa­rio facinere re­tenta. Livy lib. 24. naturall equity, and that in extream necessity that old right of using things should revive as if the things had remained common, the same standing with the interest of all humane constitutions; and therefore in the Law of Dominion extream necessity seems excepted: Hence it is that the Vessels and Ships of what nature or Nation soever F. de Navi­bus non excus. C. l. 11 tit. 3. and Pekius on the same Law. that shall be found riding in the Port or Havens of any Prince or State, may be seized on, and imploy'd upon any [Page 63] service of that Soverain that shall seize, the same being but a harmless utility not divesting the Owners of their inte [...] [...]r property.

II. If a Ship of the King of Denmark be in the Port of London, and the Swede is in War with that Prince; and it happens at that time the King of Britain is in War with the Spaniard, now the possessor is here pressed with an equal necessity, and by the same argument is rather obliged to the defense of his own Country then another, whether by the Law of Nations the Ship ought to be de­tained, hath been doubted; most certain they may, who Quidni enim (inquit Cicero) quando scire detremento sue potest, alteri communi [...]t, in iis qu [...] sunt accipienti uti­lia, danta non molesta. 1. de Offic. 1. would not pluck a Shipwrackt Man from his planck? or a wounded Man from his horse, rather then suffer himself to perish; to slight which is a sin, and to preserve the highest of wisdom; besides in the taking of the Vessel the right is not taken from the Owner, but only the use, which when the necessity is over there is a condition of restoring annexed tacitly to such a seizure.

De expedi­tione Cyri. And doubtless the same right remains to seize the Ships of War of any Nations, as well as those of Private interrest, the which may be imploy'd as occasion shall be present: So the Grecians seized on Ships of all Nations that were in Ports, by the advice of Xenophon; but in the time provided food and wages to the Mariners.

III. Whether this Right extends so far as to give Princes a power to seize in order to traffique, may be some question; certainly if the traffique be for such commodities as Masts, Timber, Tar, Powder, shot or other commodi­ties 10 Ed. m. 16. 12. or accoutrements of Armes, or Naval provisions of offence necessary for the defence of the Realm, it may be done (but then it is just, fraight 23 Ed. 1. Rott. 77. in the Exchequer. should be pay'd) for what hurt can it do me to let another my Boat to pass over a ford, if he rewards me? and if that be answered, the Owners are at no prejudice, for this is but a harmeless utility.

IV. By the Laws of England there is no question, but 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. the King may seize, and it appears by very many antient Records, that he might do it; and it was one of the Articles of enquiry amongst others, Item, soit in quis de Neifs qui sont arrestez pour le service du Roy ou de l'Admi­ral, & debreissant le Arrest, then follows, Ordonne estoit en temps du Roy Richard le primier a Grimsby per advise [Page 64] de plusteurs Seigneurs du Royaume, que quand Neifs se­ront arrestez, &c. and that upon such Arrests broken, the parties might be punished and fined.

Again, Inquiratur si arrestatus, ad serviendum Regi fre­git De Offic. Ad­miral Angliae per Roughton Artic. 10. arrestum, hujusmodi transgressor stat in gratia Regia sive Admiralli sui ultrum voluerint committere Carceribus manci­pandum vel finem facere, in hac parte si arrestum hujusmodi factum manifestum fuerit cognitum.

If the Admiral by the Kings Command arrests any Ships for the Kings service, and he or his Livetenant return and certify the Arrest or a List of the Ships arrested, into The Black-Book of the Admiralty. fo. 28 29 & 157, 158. 15. R. 2. c. 3. Chancery, no Master or Owner of the Ships so arrested shall be received to plead against the return, pur ceo que l'Admiral & son Lieu [...]enant sont de Record.

And if the Ship so arrested, break the arrest, and the Master or Owner thereof be indicted and convicted devant l'Admiral, by the Oath of 12 Men, the Ship shall be confiscate to the King, which power the General main­tains in all places where he has power, and the same seems Cro. Arg. of Hampdens C. called the Ship money C. fo. 79 to 100. to be provided for in the latter Clause of 15 R. 2. Ca. 3.

King Ethelred, his Bishops and Nobles in the General Councel of Enham an. 1009, for the setting out a Fleet every year; and the punishment of those who hurt or Spelmanni Cnocil. Tom. fo. 520, 521. spoiled any Ship, or deserted the service, especially if the King was present in the Expedition; amongst others it was enacted, Si quis Navem in Reipub. expeditionem designatam vitiaverit, damnum integre restitutio & Pacem Regis violatam compensato; si verum ita prorsus coruperit, ut deinceps nihili habeatur: plenam luito injuriam & laesam praeterea Majestatem, So Sir Henry Spelmans Version out of the Saxon Copy renders it, but the antient Copy hath it more largely.

Naves per singulos annos ob pa [...]ae defensionem & muni­tionem Spelmanni fo. 528 expe­ditio Navalis. praeparentur, postque Sacrosanctum Pascha cum cunctis utensilibus competentibus simul congregentur; qua igitur etiam poena digni sunt, qui Navium detrimentum in aliquibus per­ficiunt: notum esse cupimus, quicunque aliquam ex Navibus per quampiam inertiam vel incuriam, vell negligentiam cor­ruperit, & tamen recuperabilis sit; is Navis corruptelam vel fracturam ejusdem per solidam prius recuperet, Regique deinde, eaque pro ejusdem munitionis fractura, sibimet per­tenent rite persolvat.

[Page 65] Most certain it is, that the Kings of England, have in all Ages by their Writs and Patents, commanded not only the Admiral, but the Wardens of the Cinque Ports and o­thers, to arrest and provide Ships of War and other Vessels, and impress and provide Masters of Ships, Sea Men Ma­riners, Rot. Scotiae 10 E. 3. m. 2. to 17. and then to 34. intus & dors. to 28. and all other necessary Tackle. Arms and provi­sions for Ships, for the defense of the Sea and the Realm against forreign Enemies, or for transporting of Armies paying their freight (if not bound there by tenure) as well as to elect and provide all sorts of Souldiers, Car­penters and others Officers to be assistants in their several Expeditions.

But Firshermen or Mariners pressed for the Service, are 1 Eliz. cap. 13. Vide Stat 16. 17 Car. I. c. 15. not to be imploy'd as Souldiers, but only as Mariners; unless it be in cas [...]s of great necessity, or bound thereunto, by tenure, Custom or Covenant.

And Water-Men that shall withdraw themselves in 2 & 3 P. M. C. 16. time of pressing, shall suffer a fortnights imprisonment, and be prohibited to row on the Thames.

V. The reason why the Admirals had such power given them, was because they being sometimes called Capitanei, and Gubernatores Flotarum; they had their ordering and Governing of the Ships of War, and the raising and fit­ting up such Ships for the Navies, as they thought fit; other times called Custodes Maritimarum partium their duty being to provide all Naval provisions, as well to sup­ply the Kings Navies occasions, as to gratify another of the Kings Friends when distress should constrain them to touch in his Ports, that his Subjects might receive the like retaliation: again they were called Capitanei Nau­tarum, Vide Sir Henry Spelmans Gloss. in tit. Admir­ [...] Lambert Ar­cheion tit. Ad­miral. fo. 42. & Marinellorum; as in reference for the deciding all differences amongst those in the Kings service, and pu­nishing of such as transgressed; and as the place was great, so the power was large, especially in all things belonging to the Navy-Royall, in which they had the Supream rule and Government in all things belonging to it. He sate formerly in the Kings House, and there kept his Court, as the French Admirals do at this day at the Marble-Table, in the Kings House at Paris.

It is lawful for every Man to addict and yield up him­self to whom he pleaseth, as appears both out of the [Page 66] Hebrew Law and Roman Law; why then may not any Exodus 21. 6. Inst. de Jure person. §. servi autem. Gell. l. 2. C. 7. people being at their own dispose, give up themselves to their Prince or Soveraign; so as to transcribe the right of commanding their aide and help, as often as need shall require (it is not here inquired what may be presumed in a doubtful case, but what may be done in point of right,) most certain such a power may well be done, and that grounded on great reason; first if the Common-wealth should happen to be invaded by such a one as seeks not only the subversion of the Government but the destruction of the people, and they can find no other way to preserve themselves, but that the supream power should be vested with such such a Prerogative, as to inforce or presse the Inhabitants to serve in Armes in the defence of the same, and the contempt of which to punish, or if they should be opprest with want, and that supplies of provisions can no waies be had, but by compelling another by force to exhibite the common offi­ces of humanity to a Nation in whose Territories a famine rages, that the Inhabitants should on such extraordinary occasions be compelled by force to serve in Armes.

And this Dominion may be obtained several waies, either by a voluntary resignation to a Conqueror as they of Capua to the Romanes▪ Our Land, the Temples of our Gods, all Divine and humane things, we yield up into your hands, O ye Conscript Fathers: again Freedom may be granted to all by a Conqueror, except Mariners, which should in cases of necessity be excepted, or that some Prince, who will not suffer any Mariner to go out of his Dominions, without subjecting themselves to such a reasonable command, and the Majority of Nations on such grounds, may abdicate from a part of them the en­tire Freedom of that member.

Nor are their examples of this kind wanting; the Tacitus. Germans are every one Master of his owne house, but are almost on every occasion subject to their Lords, espe­cially in their Goods. The Irish Cosherers, which were reprehendinations when the Chief Lord, and his retinue Co. [...]. Inflit. fo. 358. came to his Tenants House, and fed upon their provi­sions till they were spent, all being solely at their de­votion: And as to the Sea, the King of Britain may at [Page 67] this day restrain Merchants or Mariners to pass out of 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. the Realm, without licence, and the various tenures that are introduced, which is presumed were since the Conquest, were no other but the will of the Conqueror, for the right is not measured by the excellency of this or that form, but by the will.

VII. And though it hath been conceived by some, that the King cannot presse Men to serve in his Wars, giving their reason, that of old he was to be served ei­ther by those that held by tenure, those that covenanted by Indenture to provide Men, or those who contracted Co. 6. part. Case of Soul­dier. Vide the 1. Institutes fo. 71. with the Kings Officers for wages and entered into pay, or those that were in Prison for the Kings debts; but that only extended to those Wars that were by Land: not one word in all those acts, or Mr. Rolls, that any waies mention the least of Mariners; and yet what vast Fleets were in those daies: but on the other hand it hath been alwaies accustomed to presse such sort of Men for the Naval Expeditions, the antient records that 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. mentions such Persons subject to presse by Law is that of 49 E. 3. commonly called 2 Aprilis 49 E. 3. in the Black-Book of the Admiralty 32, 33, 34, Art. and fo. 69. Art. 10. The Inquisition of Queenbor­rough, wherein it was expresly, in charge amongst others, to inquire of those Mariners that were pressed for the Kings Service, and deserted the same: So likewise by those other Articles translated by Roughton, it is ex­presse in charge to the Jury to present those that being prest to serve, brake the Kings Arrest, in order to their punishment; and in those daies it was esteem'd an high offence: and the Oath which the Jury then took being impanelled, was this:

This here see My Lord the Admiral, that I Iona­than Nash shall well and truly enquire for our Lord the King, and well and truly at this time then serve at this Court of th' Admiralty, present at moch, as I have acknowleche, or may have by information of eny of my fellows, of all mane Articles or circunstances that touchen the Court of the Admirate and Law of the Sea, the which shall be grate to me at this time; and I thereupon sworne or 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. [Page 68] Freindship, Love, hatred, Envye Enemitee, for dred The Black-Book of the Admir. f. 17. 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 Lamb. inter Leg. Edovardi f. 139. 13 Car. 2. cap. 9. 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 Non solis du­cib [...]s aliisque p [...]tentibus in­nasci solet, at­que immorari bene agendi propositum, sed cuique volenti & licet & ho­nestum est ejus qua vivit Re [...] ­publicae mali commoreri, & publicas utili­tates pro suis viribus promo­veri Vide Gro­tius l. 2. c. 20. 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. † 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.

And upon that very reason Queen Elizabeth deny'd the constituting of a Constable, for the Tryal of Sir An. 25. Eliz. Co. Litt. f. 74. Francis Drake, who struck off the head of Doughty, in partibus transmarinis.

X. Hence it is that every Man hath a licence given him Code Justin. tit quando li­ceat unicui (que) 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 [Page 69] 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 It was in force in England till the beginning of the Reign of Edw. 3ds. time. Co. Inst 128. B. 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 13 H. 4. fo. 4, 5. the Tryal of such deserters, by which impunity for such killing, seems allow'd off at this day by that Law. 37 H. 6. fo. 3.

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 [Page 71] of the Estate of affairs, and the conformity and 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. 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 As that be­tween Edward the 4th. and Lewis the 11th. in the Territories of the Duke of Burgundy. 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. 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. 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 may receive some detriment, [Page 72] which cannot be maintained amidst the contestations which happen in Conferences.

But if an Ambassador be deputed as Lievtenant to a Prince, there indeed such Commissioner is not bound to treat, but only with the Prince himself: and so it was where the Bishop of Gurgia, who was deputed by the Julius Ferretus de legatis Prin­cipium, & de [...] side & [...]. Emperor to Pope Julio the Second; the Pope commissio­nated 3 Cardinals to treat with him, but the Bishop having notice in what quality he was like to be recei­ved, commissionated 3 Gentlemen to confer with them, excusing himself upon other affairs; which afterwards was explained, that he came not as a single Ambassador, but as a Livetenant to the Emperor, to the which Qua­lity he had been received at Rome by the Pope.

V. The Deputies being assembled, their Seats are con­siderable, they having no power to quit any thing of the ranke, which their Masters ought to hold, and by the Laws of Treaties the first place, is at the head or end of the Table, (if there be one) the second is the first on the right hand, and the third is, the first on the left hand of him that is at the end: and if there be many Deputies to one Prince, they usually sit at one side, to have the more facility to confer together, if it be needful.

VI. Treaties which are made with our Neighbours as Friends, are called Treaties of Alliances, equal or un­equal: The equal is either of single Friendship only, for the entertainment of Traffique, or for aide and succour; that of succour is for the Defensive or offensive, and some­times for both, with or against all Men, or against some certain Princes and Republiques and there 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 look [...] upon to be the firmest of Al­liances Phil. Comines lib. 2. cap. 8. Alliances are contracted, either from Estate to Estate, and for the preservation of the Estates of each other (in which case by the death of the Prince they may not be in­terrupted. Or else they are contracted betwixt Prince and Prince, and then the death of one suspends till a new Treaty hath confirmed it, unless there is a time certain prescribed by the Treaty, to the which the Al­liance must continue after the death of the Prince; or else they are made from an Estate and Prince, where the death of the Prince does likewise, if not dissolve; yet at [Page 73] least suspend till a new Treaty of Confirmation of the 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. precedents, although by the Laws of England Rex non intermoritur.

VII. Sometimes Alliances are contracted for an En­terprize and for one effect only, in the part which the Allies are interressed, and such is generally called League; which in England have been sometimes confirmed by Act of Parliament. Rot. Pat. 4. H. 5. num. 4. Coke 4. Inst. 156.

Leagues commonly are offensive, but in effect they tend to attempt against some one, and in the bottom Treaty of Cambray, the Confederates of which were Pope▪ Julius the 2d. the Emperor, King of France, Spain and Arragon, anno 1558. Vide History Republique of Venic▪ so. 87. are lodged Articles of secresie for the Enterprise: and such was that of Cambray against the Venetians, in which they borrowed the pretext of Religion, and the Peace of Chri­stendom.

VIII. The ordinary causes for which Princes and Re­publiques make Leagues, they are either to facilate a Con­quest, as that that was made between Lewis the 12th. and Ferdinand of Arragon, for the Realm of Naples.

Or to ballance the Forces of one that is more mighty, in hindering him that he grow not greater, but Arms ought not to be taken, to diminish such a Neighbours power, for that fear is uncertain, but prudent Leagues Sed ut vim pati posse ad vim inferen­dam jus tri­buat ab omne equitatis ab­horre. Grotius de Jure belli & pacis lib. 2. cap. 15. §. 17. may be made in diminishing their power.

The English made a Lague to succour the Hollanders, not only to ballance the growing opulancy of the Spa­nish Monarchy, but likewise to encrease her own by the Alliance of the Dutch. Quid sequitur?

Again, Leagues may be made for the procuring of a general Peace, by way of Mediation of their Neighbours in War; and such was that League of Union propoun­ded by His now Sacred Majesty, and afterwards con­cluded betwixt him and the States General of the United Provinces for an efficatious Mediation of Peace between France and Spain, his Sacred Majesty of Britain having a prospect to what afterwards happened and of a War, [Page 74] wherein most inevitably the same must involve the most of the Princes in Christendom in) to the affecting of which Peace, his Majesty and the States General, did obtain a promise from the French King to the Dutch, to lay down Arms, on condition the Spaniards would formally and solemnly by a Treaty of Peace, quit to him all those Places and Forts together with the Chastellenies, and their appurtenances which they by force of Armes had taken in, or fortified in the then last years Expedition; or otherwise that the Spaniard be brought to transfer to the French all their remainder in the Dutchy of Lux­emburg (or to the County of Burgundy) together with Cambray and Cambresis, Douay, Ayre, St. Omers, Bergue, St. Avinox, Fuernes and Lynk, with the Bailywicks, Chastellenies and all other their dependancies, and the French King to restore to the Spaniard all Places, Ter­ritories, League of U­nion between his Majesty of Britain con­cluded at the Hague, with the States Ge­neral of the U­nited Nor­therlands Ja­nuary1 [...]/23anno 1668. which they have by Armes taken since their en­terance into Flanders, on condition that the States Ge­neral do reciprocally undertake and secure to the French, to prevaile with the Spaniard to consent to the same conditions, which once effected would (as was hopt) initiate the tranquility of, and interest not only of of two Warring Crownes, but of all other the Princes of Christendom. To the effecting of which, there were se­veral Articles agreed, and likewise it was agreed, that if a Peace should happen to be made, his Majesty and the States General should become Warranties, and a Place left for any other Prince or State to come into the same, and who should think it their interest to keep the Peace of Christendom undisturbed, and to restore the Low-Countries to their tranquillity, there was provision made likewise by the same, for the Forces of each of the War­rantees to be used against those that should break and violate the same, oblidging them to cease the violence, and repair the party injured.

IX. A Defensive League, which hath no other benefit But a Defen­sive War is un­just on his part who gave just cause of war. but a necessary defence, and in the which Mean Estates are in a manner equally interessed, last usually longer then an Offensive League, which is voluntary, and from the which either of the Confederates will easily part when he hath more interest; So as in ballancing the interest of [Page 75] the one and the other, he that shall find himself accom­panied with distrust, and an opinion to be irreconci­liable to the common Enemy, generally proves the most firm in the League.

The Wisdom, Courage, Means and Constancy of the Prince or State is to be considered; so likewise of the distance of the Places, as well in regard of those with whom they unite, as of those against whom they make the Leagues.

Leagues having no other limitation, but the end of the Enterprise for which they were made, have admitted Pontius Sam­nis after resti­tution made to the Romans, and the author of the breach yeilded up ex­piatum (saith he) ex quic­quid ex soedere rupto irarum in nos caelesti­um fuit. Satis scio quibuscun­que dii cordi suit subigi nos ad necessitatem cedendi res, iis non fuisse cor­di tam superbi a Romanis foe­deris expiatio [...] nem spretam: And a little after, What more do [...]ow to thee, O Roman? what to the League? what to the Gods, the Judges of the League, whom shall I bring unto thee to be the Judge of thy anger and of my punishment? I refute no people, nor pri­vate Men. many large debates in cases of accident: For instance, if an Enemy shall take the Countrey, for the defense whereof the League was made, the Question has been whether the Confederates be bound to assist him, who hath lost it in the 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, [...]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. Anno 1515. Vide Sir Rob. Cocten Remonst. of the Trea­ties of Amity and Marriage. made a League [Page 76] 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 An. 1515. vide Sir Robert Cot­ton Remonstr. of Treaties. 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 Andr [...] Mauro­ [...]eni Hist. Ven. 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 If one part hath violated the League, the other may de­part from it: for the several Heads of the League have every one the force of a Con­dition; So Gro­tius conceives lib. 2. Cap. 13. [...]. 15. and to make his [Page 77] accord apart, as did the Venetians with the Turks, after Soluti foederis culpam s [...]sti­nent, non qui deserti ad alios se conferunt, sed quicquam jura­ti promiserant opem re non pr [...]stant. Alibi apud eundem si vel tantillum ex dictis pars alterutra tra [...] ­sgrederetur ru­pta fore pacta. Thucyd. lib. 1. 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 19 E. 4. Vide Stat. 2. H. 5. cap. 6. 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 Hill. 14. Eliz. in the Duke of Norfolk's Case. 4. Inst. fo. 152. 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 † In fidelitat [...] feudali dicitur; Et si scivero velle te aliquem juste offendere, generaliter vel specialiter fuere requisitus me­um tibi, sicut potero praestabo auxilium. Orat. Demosthen. de Megalopoli. 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 Nihil inter­cedi, quo minus Samniti populo pacis bellisque, liberum arbi­trium sit. Liv. lib. 8. Peace, and cause the difference to be judg­ed Grotius de Ju­re belli ac Pa­cis lib. 2. c. 15. §. 13. by the Common Allies, which being propounded with a Declaration that the refuser; or having once submitted [Page 78] 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 In fidilitate feudali dici­tur: Et si sci­vero velle te aliquem juste ostendere, & inde generali­ter vel speciali­ter fuero requi­situs meum tibi sicut potero praestabo auxilium. Demosthenes Orat. de Megalopoli. 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 Equals cannot directly refuse War, nor de­mand Peace. 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 Liv. 3. Polybius in excerptis Le­gationum 35. this is by natural right.

XVII. By the Laws of Leagues though the Oath binds only the Person; yet the Promise binds the successor, VVhen Edw. the 4th. was chased out of the Kingdom, and Henry the 6th. was set up again; yet by reason there was incerted into the same, these words; viz. With the King and Realm, that the League did remain perpe­tual. Phil. Comines lib. 3. c. 6. 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 Ulpian. Leg. Jure▪ Gentium, sect. pactum. D. pactis. 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 [Page 79] his Successors, or for a time limited, the same does most Adde qua Helvetiis cau­santur post mor­tem Henrici 3. apud Thuanum, lib. 97. in An. 1589. Vide & insignem locum apud Cambde­num in Anno 1572, ubi de Foedere antiquo Gall. & Scotis. 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. Quintus said to Nabis, VVe have made no friendship nor society with thee, but with Pelops the just and lawfull King of the Lacedemoni­ans. 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 11 Hen. 7. cap. 1. 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 4 E. 4. 1. 5. E. 4. 12. 3 Inst. f. 7. 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 Ed. 4. in An. 1470. 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 Phil. Comines l. 3. c. 6. England: So that for Edward they should name Henry (who was newly taken out of the Tower by the Earl of Reges qui Re­gnis ex uti, sunt, cum aliis regni bonis eti­am jus legandi perdiderunt. 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 [Page 80] 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, Peter Mathew History of France in the Life of Henry the Third. 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 [Page 81] 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 Vide Peter Mathews Hist. of France in Vita Hen. 4. avowing their Ambassador, especially knowing at the same time that they were Rebels, and could pretend no Right nor Tittle separate from his Crown: For Princes (quoth he) when Ambassadors are addrest to them, ne­ver inform themselves of the Rights and Tittle of those [Page 82] Princes from whom they are sent; but whether they have possession of the Force and Power of those places from whence the Ambassadors are employ'd, for it would be an endless taske, and require an infallible true History of the World (which is not to be made by Man) if all In Regno di­viso gens una, pro tempore quasi duae gen­tes habentur: And Princes are to have an eye to the Power which each Kingdom hath to afford benefit one to the other, and not to examine their Titles. the Ambassadors before their receptions should be obli­ged, first to prove clearly to the World the just Right by which their Masters derive those Tittles and Juris­dictions, which they assume to themselves.’

CHAP. VIII. Of Alliances unequal, and of Protection.

  • I. Of Alliances unequal, as in re­ference to the acknowledging a Superiority or Protection in an­other.
  • II. Of Protections by a Prince or State voluntary or mercinary.
  • III. Of the Duty incumbent on the protected, and the obligation in honour and justice on the Pro­tector.
  • IV. Of Alliances unequal, and of the ordinary causes that may tend to a rupture of the same.
  • V. Of the causes extraordinary that may occasion the breach of such Alliances.
  • VI. Of Faith and assurance impli­citly discharged by the delivering of Hostages.
  • VII▪ Of the differences of Leagnes contracted by Princes, through force or fear, and private Con­tracts made with private per­sons by reason of the same
  • VIII. Ambiguity in words given, occasion to Princes to depart from the League, and of the Reputa­tion of Princes on such occasion preserving the Alliance.
  • IX. Of the firmness and assurance of Alliances whether to be found more in Princes, or in Reipu­bliques.
  • X. If one party hath violated the League, whether it be lawful for the other to depart from the same.
  • XI. In the construction of Leagues, the thoughts not the words of Princes to be considered.
  • XII. Of things favourable, things edious, and others of a mixt na­ture to be used in the interpret­ing of Leagues.

1. UNequal Alliance is that which is contracted betwixt Andronicus post Rhodius Aristotelem, a­micitiae inter partes, hoc ait proprium ut po­tentiori plus ho­noris infermori plus auxilii de­feratur. in Gro­tius lib. 1. cap. 3. §. 21. num. 2. It is the pro­perty of friend­ship 'twixt un­equals, that the stronger have more ho­nour, and the weaker have more help: Proculus adds that such a clause is incerted in the League, to signify the one is superior in authority and dignity; for both are free, but are sub pa­trocinio, non subditione. Livy lib. 37. Cicero Offic. 2. Princes or States unequal in Honour, or in Power, with unequal conditions, the acknowledging the other, not for Master or Lord, but by Honour as the more power­ful, and the better qualified, and some for Protector; and these Treaties are made with those States, which take or give Pension, or which put themselves into Protection.

Tribute is payed by the Subject, or by him, who, to en­joy his Liberty, payes that which is agreed upon to him that hath forced him to do it. But a Pension is held voluntary from him that is in Protection, or from him that is in all other things equal to the Treaty of Alliance to hinder the Pensioner, that he joyn not with the Ene­my, as the Swiss to the French, or to have aid and suc­cours from him.

[Page 84] II. But that Protection is most true and Honourable▪ Leg. non dubit. D. de Cap. when a Prince or Reipublique takes upon him the defense of another, freely without reward, though some, if not all, find it most necessary to ballance honour with pro­fit, from this maxim, that A pecuniary interest oblidges more to succour, then when barely obliged by Oath.

III. By the Law of Protection, he that is protected ows The Genoeses having put themselves in the protection of the French King, revolted; he thereupon changed their conditions in­to Priviledges, to the end it might be in his will to de­prive them when he should think fit. all Respect and Honour to his Protector, against whom if he conspire or attempt, or strayes from his duty, it is lawful for the Protector to make better assurance; nay, if he pleases to make himself Master: But then on the other side the Protector ought to defend and succour the protected, and use him well; for otherwise he may withdraw himself from the Protection, and seek another.

IV. In Alliances that are unequal, there are 4 kind of controversies may happen.

First, if the Subjects of a Prince or Reipublique, that is under the ptotector of another, have committed any thing against the League. Vide Cardinal. Thuse. P. P. [...]oncl. 935.

Secondly, if the Prince or Reipublique be accused.

Thirdly, if the Fellows, which are under the prote­ction of the same, Prince or Reipublique, contend with one another. This holds as well between Leagues equal [...] equal.

Fourthly, if the Subjects complain of their own Ruler.

To the first, if a fault appear, the Prince or Reipub­lique, is bound either to punish the offender, or ren­der [...] de Jure [...] ac Pacis li [...]. 1▪ cap. 3. [...] him up to the party injured, and see or endeavour that damages may be recovered.

But one of the Associates in the League, hath no right to apprehend or punish the Subjects of his confederate. This hath the same right in Leagues that are equal. Nam ut quis ultio­nem sumat ab eo qui peccavit satis est ut ipse ei qui peccavit subditus▪ non sit. Grot. de Jure Be [...]i lib. 1. cap. 3. §. 21. n. 5.

To the second, the Confederate hath a right to compel his confederate to stand to the League, and if he will not, to punish him; for that one may take satisfaction or revenge of him that hath offended; and this happens as well amongst those that have no confederation at all.

To the third, as in Confederacies equal, the contro­versies are wont generally to be brought before an As­sembly of the Confederates; that is to say, such as are not concerned in the question, or else before Arbitrators, or [Page 85] else before the Prince of the Association, as a Common Ar­bitrator. But that pro­ves not any power of com­manding, for Princes do usually try their causes before Judges of their own choosing. [...]. lib. cap. 3. §. 21. n. 6.

So on the other hand in a League unequal, it is agreed for the most part, that the controversies be debated before him who is Superior in the League.

To the last, the Confederates have no Cognizance. In common Affaires out of time of Assembly, even where the League is equal, the Custom is for him who is chose Cheif of the League, to have command over the Confede­rates, according to the Speech of the Corinthians in Thu­cydides, It becomes them that are Princes of the League, not Decet eos qu [...] Foederis Prin­cipes sant circa suas quidem u­tilitates, nihil praecip [...] su­mere; [...]t in communibus re­bus curandis e­miueresupra cae­teros in Orat. Corinthiorum. to seek their own particular advantage, but to content them­selves with an eminency above the rest, in taking care of the common Interest.

V. Though that the breach of Faith be much practi­sed in such affairs; yet there are few Princes found, which have not found a pretext, some have pretended to be cir­cumvented by error; others by change of Affairs have pleaded an excuse, as great wrongs or inevitable loss, and apparent danger of the ruine of their States, which are the causes, wherein some say, that an Oath is not obliga­tory; the condition, by reason of the Oath, being im­possible or unjust, to these limitations, some hold they must not keep faith with an Enemy of the Faith, nor with him Oldradus Cons. 1. that hath broken his, nor with a Subject, nor with a Thief or Pyrat; certainly if it be not lawful for a Man in these cases to keep Faith, it is not lawful to give it: If it be lawful to captulate with such Men, it is ne­cessary to hold that we promise, that is, (we presume) Gregorus Per­jurum Deo cul­pam impingit negligenti [...] when the word is given by him that may give it, and that they rely upon it.

VI. If Hostages are taken, he that gives them is freed from his Faith; for that in receiving Hostages, he that re­ceives them hath relinquished from the assurance, which he had in the Faith of him that gave them; so where a Captain for his Prince gives his word without Commis­sion, it binds not the Prince.

VII. Some Lawyers would judge of Treaties as par­ticular Contracts, by which means they would stretch the Consciences of Princes; for, say they, that as a private Man is not bound by that which he hath promised by [Page 86] force or fear, so it ought to take place amongst Princes and in Treaties which are made betwixt Soveraigns, but that is ridiculous, for that were in effect to banish Faith from all publique Negotiations; for there is no Treaty but is usually made in Arms by force or through fear, to loose either Life, or Goods, or Liberty, or the State; which are causes of just fear, and may shake the most constant.

VIII. Some Princes desirous to shew themselves more religious in these ruptures, have taken subject and occa­sion upon the ambiguity of some clauses in the Treaty, or upon equivocation, as Charles the Fifth did; or else they Upon the wo [...]s E [...]ing and Eu [...]g, to retain the L [...]grave of Hesse. seek other occasions, as attempting against those whom their Allie is bound to defend; to the end that drawing him into the field, he may lay the cause of the Repture on him.

But Princes, who respect such Treaties with a pious intention of preserving them, alwaies remain constant and firme; and though occasion may offer it self, by which they might get advantage by the breach; yet when they remain durable, such respect is afterwards had to their Word and Honour, that fewer and lesser securities will be demanded of them, then one whose Faith is doubted. Famous was the answer of the Carthagi­nians Senate to the Romans, upon the as­saulting of Sa­guntum; Ego non privato pu­blicove consilio Saguntum op­pugnatum, si quaerendum cen­seo; sed utrum jure an injuria; nostra enim haec quaestio atque animdversio in Civem nostrum, est nostrum an suo fecerit arbitrio vobiscum una di­sputatio est, licuerit ne per soedus fieri; Whether Saguntum was assaulted by Pri­vate or publique Councel, we conceive it not to be made the question; but this, whether it was assaulted justly or unjustly, for to our selves an account is to be given by our Citizens, whether it did it of himself, or by Commission; with you alone this is dispensable, whether it were a violation of the League, or no, Li­vius lib. 31.

IX. But assurances in cases of this nature has been found more in Reipubliques then in Princes; for though Reipubliques have the same mind, and have the same in­tentions as Princes, yet for that they move but slowly, it will cause them to stay longer in resolving: Famous is that of the Atheneans when Themosticles in his Oration told them, that he could discover a matter in which the Atheneans would reap great advantages in; but he could not tell it, for fear the discovery would take away the opportunity of atcheiving it: whereupon the Athe­neans deputed Aristides, to whom he should communicate the secret, and with him should consult about the ob­taining [Page 87] it, they meeting Themosticles demonstrated that it was in the power of the Atheneans to make themselves Masters of all Greece, for the Grecian Naval Army was then in their Ports and Protection; whereupon Aristi­des reply'd, The same was a breach of Faith: But it was answered, it being for the publique, all considerations of that kind ought to be laid aside; whereupon Aristides be­ing called by the People to give a Report, told them, Themosticles's advice was exceeding profitable, but dishonest, for which cause the People wholly refused it.

X. If one party has violated the League, the other may most certainly depart from it, for the transgression of the Articles, be it never so little, makes a breach of the agreement; unless it be otherwise prevented by Con­dition, which may be, by incerting into the same, Grotius de Jure Belli ac Pacis lib. 2. ch. 15. §. 15. that for every offence it may not be lawful to depart from the League.

XI. In all Leagues, the thoughts of Princes and States are to be considered not what they said; yet because in­ternal In fide quid senseris non quid dixeris cogitandum. Cic. de Offic. 1. Acts are not visible by themselves, it is necessary that somewhat certain should be determined, i. e. redu­ced to Heads or Writings: otherwise there would be no obligation at all, for then every one might free him­self by affixing on his own words what sense he pleases: Hence it is that by the dictates of Natural reason, he, to whom any thing is promised, hath a right to compel the promiser, to that which right Interpretation suggesteth, for otherwise the matter would have no end.

XII. In the Interpretation of Leagues and Truces, there ought to be a very great care had, in regard of the Sacredness of them; therefore in things promised or se­cured by such Leagues, some are favourable, some odious, some mixt, or of a middle nature. Those that are most favoured are those whose words tend to Peace, not to War; whose foot-steps leave ever behind, the deep im­pressions of misery, devastation and poverty, but more especially when such Leagues are made for War Defensive then otherwise; but those are called odious, which burden or oppress one part only, or one more then the other, and likewise such as tend to matter of Revenge or Punishment, or to violate some former acts, or obli­gations, or the bringing in a change or innovation of what [Page 88] hath been constantly settled, and used before. Mixt, as where a change is propounded; but that is with the Sisters of Moderation and Peace, which are proportiona­bly In L. non pos­sunt. D. de Le­gibus. good, according as the change may be esteemed.—Therefore the Standard Rule, is, that in Leagues and Treaties not odious, the words are to be taken according to the full extent and propriety of popular use; and if there be more significations, the largest is best: on the other hand we are not to recur to significations plainly impro­per, unless otherwise some absurdity or inutility of the agreement would follow: Again, words are to be taken ever more strickly then propriety suffers, if it be necessary for the avoyding of inequity or absurdity. But if there Vide exemplum in L. cum vi­rum. C. de fidei commissis. be not such necessity, manifest equity or utility in the re­striction, we are to stay them within the narrowest bounds of propriety, unless the cirumstances disswade; on the other hand in Leagues or Promises odious, even a figurative speech is admitted, to avoid the Odium, or burthen, therefore in Donation, Remission of ones Right, Do­minion or property, they are alwaies to be construed to those things, which were probably thought on, and really in­tended. So aids and succours promised from one part, Grotius lib. 2. cap. 16. §. 12. only is to be understood to be due at the charges of him who shall acquire them.

CHAP. IX. Of Treaties of Truce and Neutrality.

  • I. Of Treaties, the various sorts.
  • II. Of Rules in cases doubtful:
  • III. Of Truces amounting to a Peace.
  • IV. Of the advantages between Treaties of Truce and Peace.
  • V. How preserved and punished in England.
  • VI. Of Treaties of Neutrality, the various sorts.
  • VII. Of the advantages of the same.
  • VIII. In cases of necessity where he ought to declare, and for whom.

I. TReaties are either with Enemies or Friends, or with Persons which desire to continue Neuters with us, or we with them.

The Treaties which are made with our Enemies, are either for a time, or perpetual.

Perpetual, as the Peace that is made to compose all differences, and the War that is undertaken for Con­quest, or for Reparation of injuries, or to restore the Com­merce.

Treaties which are made for a time with our Ene­mies, are called Truces; the which are either General, for all the States of the one or the other Prince, for all Per­sons, and for all sorts of Commerce: Or else they are Par­ticular, for certain Places, for certain Persons, and for the Commerce.

II. When any one is bound by Alliance not to make Peace or Truce, without the consent of his Allie, and In the Truce that was made between Edw. the 4th. and Lewis the 11th there was like provi­sion made for Charles Duke of Burgundy, but he refused, and concluded a Peace for himself a part, being angry with Edw. the 4th. for making the same, Philip. Com. lib. 4. c 40. So Lewis the 11th. concluded a Truce for nine Years with Edw. the 4th. when he had invaded France, Phil. Com. lib. 4. cap. 8. whose agreement seems doubtfull, they set down no prefixed time, but, that it shall continue till he refuse, and some reasonable time ascertained after; as that which was made betwixt Charles the Eight, and the King of Spain.

III. Sometimes a General Truce holds the place of a [Page 60] Peace, as that of a hundred years. Such Truces are com­monly made betwixt Princes that are equal in Power, and will not quit any thing of their Rights by Peace; and yet desire to live quietly in the State wherein they are, satisfying by this medium, the Point of Honour.

IV. Treaties of Truce are many times less subject to Rupture then a Peace, which is made perpetual; for Prin­ces or States that find themselves aggrieved with a Treaty that is perpetual, seek out plausible reasons to forsake it, seeing the grievance cannot be otherwise repaired; but if the time be limited and expired, they may pursue that which they think ought to be granted, and the other may oppose; and if they have a desire to continue the Truce, there is nothing so easy as to renew it. Hence it is become a Maxim in State, that seeing Treaties are grounded on the Interests of Princes which change with the time, it is necessary to change and settle them at the end of the time, or to break them off: for it is in vain to trust to a bare Friendship.

A Truce is likewise made to advance a Peace, and to treat it; so likewise it is sometimes promoted for the more honest discharge of a League, which is made with some other Prince, whom they have accustomed to compre­hend therein: so as a Peace following it, or a Truce not being accepted by him, they take accasion to leave the League, it being not his fault that leaves it, that the War was not ended.

And although it seems that a Truce cannot by its con­dition prejudice the pretention in the Principal; yet it is most certain that if he which is chased out of a conten­tious State, consents, that during the Truce, the Commerce shall be forbidden to his Subjects, he doth wholly stop the gate, For the Right remains with him: how ever, he hath lost the pos­session. Grot. de Jure Belli ac Pacis lib. 2. ch. 16. §. 18. as Lewis the 12th. did in the Truce which he made with Gonsalve, after the Conquest of the Realm of Naples.

In England by the Stat. 2 H. 5. cap. 6. Robbery, spoil­ing, breaking of Truces and Safe-Conducts by any of the 2 H. 5. cap. 6. Kings Liege People, and Subjects within England, Ireland and Wales, or upon the main Sea, was adjudged and de­termined to be High-treason; but this branch concern­ing High-treason, is repealed by the Stat. of 20 H. 6. 20 H. 6. cap. 11. cap. 11. but by the said Act of 2 H. 5. for the better [Page 91] observation of Truces and Safe-Conducts, Conservator Induciarum & salvorum Regis conductum, was raised and appointed in every Port of the Sea by Letters Patents, his Office was to enquire of all offences done against the Kings Truces, and Safe-Conducts upon the main Sea (out of the Counties and out of the liberties of Cinque Ports, as Admirals of Custom were used to do. Sir John Trebiel was committed to the Tower, for taking a French Ship, and being brought into Parliament did there justify the same; but at last confessed his fault, and begged the Kings Pardon: And at the the Lords of Request of and Commons was pardoned, he making sa­tisfaction for the losse. 11 H. 4. ad Parli­ament tent quenden Hill. vide Cotton A­bridgement. 19 E. 4. 6. B. 18 H. 6. ca 4. 20 H. 6. cap. 1. generally all Leagues and Safe-Conducts are, or ought to be of Record, that is, they ought to be Inrolled in the Chancery, to the end the Subject may know who are in Amity with the King, and who not: who be Enemies, and can have no Action here, and who in League, and may have Actions personal here.

Sometimes they have been inrolled in the Wardrobe, 19 E. 4. 6. B. as being matters of State.

Note; In all Treaties, the power of the one party, and the Maxime. other, ought to be equal; nor are they to be held firm till ratified.

Before the Statute when any breach of Truces or Lea­gues Rott. Scotiae de An. 10 E. 3. m. 36. intus de puniendo illos qui contra for­mam Treugae hominibus de Scotiae concess [...] deliquerint. happened, or was occasioned by the misdemeanours of any of the King of Englands Subjects, there did usu­ally issue forth Commissions under the Great Seal of Eng­land, to enquire of the fringers of the same, and to pu­nish and award satisfaction to the injured.

VI. Princes who neither love nor hate any thing ab­solutely, seem generally inclined to neutrality, and in that govern themselves in their Friendships, according to their interests; and Reasons of State, in effect is no other but Reason of Interest.

Neutrality may be of two sorts; the one with Al­liance with either part, the other without Alliance, or so much as the least tie to the one or other, which is that which properly may be called Neutrality.

The first is governed by the Treaty of Neutrality, the latter by the Discretion of the Neuter Prince, whose car­riage ought alwaies to be such, as that he may not give the least glimpse of inclining more to one then to another.

VII: The advantages of Neutrality, are, that the [Page 92] neuter Prince or Republique is honoured and respected of both Parties, and by the fear of his declaring against one of them he remains Arbitrator of others, & Master of himself.

And as a Neuter neither purchases Friends, nor frees himself from Enemies; so commonly he proves a prey to the Victor: hence it is held more advantage to ha­zard in a Conquest with a Companion, then to remain in a State wherein he is in all probability of being ruined by the one or the other.

But Princes that are powerful, have used generally to preserve a Neutrality: for whilst Petty Princes and States ruin themselves by War, he fortifies himself with means; and in the end, may make himself Judge of their dif­ferences.

On the other hand, it hath been conceived, that Rei­publiques that are weak, what part soever they take, it will be dangerous unto them, especially if they are in the midst of two more powerful States then themselves; but experience hath made it appear to the contrary, that Neutrality is more beneficial to a weak Prince or Reipublique; so that they that are at War be not barba­rous Much practi­sed by the Free Princes and States of the Empire. or inhumane; for although a Neutrality does not please either party, yet in effect wrongs no Man; and as he doth not serve, so he does not hurt; besides his declaration is reserved till the issue of the War, by which means he is not oblidged that by siding with eiher party, to gain or loose by the War.

VIII. But if the Neuter be prest by necessity to de­clare himself, he must do it for the most powerful of the two parties, following that Roman Maxime, That either they must make themselves the strongest, or be a friend to the strongest: So they of Strasburgh An. 1674 Con­sul Quintus ad Achaeos, quod optimum esse di cant non inter­ [...]erponi vos bel­lo: imo nihil tam alienam re­bus vestris est: Quippe sine gratia, ne li­gnitate praemi­u [...] [...] e­ritis. Lucius lib. 35 Scripta Ammirat disc. polit. l. 18. disc. polit. declared for the Em­pire against the French; on the other hand, if the Neu­ter sees, that joyning to the weaker, will ballance the power of the stronger, and by this counterpoize, reduce them to reason: the same hath been generally followed upon the Maxime, That the safety of States consist chiefly in an equal counterpoize of the one, and the other; for as the greatness and oppulancy of a Prince draws after it the ruin of their Neighbours, it is wisdom to prevent it.

CHAP. X. Of the immunities and Priviledges of Am­bassadors, and other publique Ministers of State.

  • I. Of the Function of Ambassadors and Agents generally.
  • II. Of their right and protection by the Laws Divine and of Na­tions.
  • III. Of precaution, whether the same may be given to such not to come, and attempting against such interdiction, how dealt with, and of punishment of those that shall hurt them by the Laws of England.
  • IV. Of the several causes that Princes or Reipubliques may re­ject such publique Ministers of State.
  • V. Where Ambassadors may be sub­jected to punishment by the Laws of Nations.
  • VI. Of the proceeding against them by Princes & States at this day, according to the practise of Na­tions.
  • VII. Of the various proceedings against them by several Princes and Reipubliques, illustrated in 15 Presidents of examples.
  • VIII. Of the proceeding against them, according to the pactise in England.
  • IX. Ambassadors, where they for­feit their Priviledge by the Laws of England.
  • X. Where actions committed by them, though against the known Laws, yet oblidges them not to a forfeiture of their Priviledge.
  • XI. Of the duty of Ambassadors in cases Civil, and what their Of­fice includes for the King and Nation, whom they represent.
  • XII. Whether the House of an Am­bassador can be a Sanctuary, or whether he may exercise a Royal Jurisdiction over his Servants and Vassals; whether the same proceeds from the Laws of Na­tions.
  • XIII. Whether the Goods of an Ambassador may be seized for debt or other Contracts.
  • XIV. Whether outrages commit­ted by publique Ministers of State, can subject them to punishment.
  • XV. Of the punishment of those that commit any outrage on them.
  • XVI. Some observation of the immunities and Government by the Laws of Venice of their Am­bassadors.

AN Ambassador and Agent is the same thing, if we con­sider only the Function of their Charges: only in this they differ; an Agent hath charge to represent the Affairs only, but an Ambassadors ought represent the Great­ness of his Master, and of his Affairs.

[Page 94] II. The right of Ambassadors is secured both by the Safe­guard of Men, and also by the protection of the Law Di­vine; therefore to violate this, is not only unjust, but impious too: and as Protection is given to the Legates of Supream Pompon. Leg. si quis. D. de Le­cationibus. Rulers by the Laws of Nations, so by the Civil Law, there is a protection likewise for Provincial Legates, and He­raulds, &c. This Right of Legation was originally pro­vided, saith Livy, for a Forreigner, not a Citizen; yet in Livy lib. 1. 6. Civil Wars, necessity sometimes makes place for this right besides the Rule, as when the People are so divided into equal parts, that it is doubtful on which side the right of Empire lyeth, as that unhappy spot of Flanders, or Kings conquer ed in a solemn War, and de­prived of their Kingdom with other Royal­ties, loose the right Lega­tion. P. Aemi­lius detain'd the Heralds of Perseus, whom he conquered. when the right being much controverted, two contend for the succession to the Throne; for in this case one Na­tion is reckoned as two, and so was the State of Eng­land, when the House of York and Lancaster, contended for the Crown; nay, this right of Legation hath been pre­served that the very Messengers of Rebels have been pro­tected, as were those of Holland by Phillip of Spain: So great a respect P. Poole a Traitor, fled to Rome, the Pope sent him Ambassador to the French King, of whom the King of England demands his Subject, sed non prae­valuit. Co. Inst. 3. fo. 153. have Nations had in all times to such Men, that even Pyrats and Robbers, who make not a Society, nor have any Protection by the Law of Nations, and with whom neither Faith nor Oath (as some conceive) may be kept; Faith being given them, obtain the right of Legation, as once the Fugitives in the Perynean Forest.

III. Ambassadors may by a precaution be warned not to come, if they dare, they shall be taken for Enemies; but once admitted even with Enemies in Arms, much less with Enemies not in actual hostility, have the prote­ction Rot. Pat. 3. R. 2. num 18. and Safe-guard of the Laws of Nations; and there­fore their Quallity being admitted by Safe-conduct, they are to be preserved as Princes; and so it was declared in Parliament, where the killing of John Imperial, Ambas­sador from the States of Genoa, was High-treason, Crimen laesae Majestatis.

Legatus ejus vice fungitur a quo destinatur, & honorandus est sicut ille cu­jus vicem ge­rit, & Lega­tos violare, contra jus Gentium est. [...]2 Assize pl. 49. Note, this was 3 years before the making of the Stat. of 25 E. 3. quaere if such a Prorex is within the Stat, at this day. So likewise of A. de Walton, the Kings Ambassador Nuncium Domini Regis missum ad mandatum Regis exe­quendum, [Page 95] who was murdered by one John Hill, for which offence it was adjudged High-treason, and accordingly he was drawn, hang'd and beheaded.

IV. On the other hand, Ambassadors may not alwaies be received, though alwaies they ought not to be rejected; for there may be cause from him from whom they come, as the Roman Senate would not admit of the Ambas­sage of the Carthaginian, whose Army was then in Italy; the Cambden 157 [...] quaestionum ibi pro posticarum quarta. King of Spain those of Holland, and the then Pope the Ambassadors of Henry the 2d. after the murder of Becket Arch. Bishop of Canterbury: so likewise from the very Per­sons Daniels Hist. of Henry the Second. that are sent, as Theodorus Athest, whom Lisima­chus would not give Audience to, and Mr. Oliver Lewis the 11th's Barber, whom they of Caunt refused. Carolus quin­tus Imp. Galliae Venetorum & Florentinorum ad bellum sibi indicendum missos d [...]duci jussit in locum qui a comitatu sno abesset, tri­ginta millarum aria, Guic. l. 18. Bellaius lib. 3.

So likewise where the cause of sending is suspected, as in reference to disturbe the People or intentions rather to sow sedition then to conclude a Peace (if such be their errand) or not honourable or unseasonable; as for those assiduous Legations which are now in use, they may with very good right be rejected; for the no-necessity of them appears, by the Antient Custom whereto they are unknown.

The Venetian having admitted Henry the Fourth of France his Ambassador, yet they interdicted him Card. Arnold. Ossat in his 353 Epistle. Coke 4. Iust. 153. to come with the other Ambassadors to the Chappel, till the King was reconciled to the Church of Rome.

V. By the Laws of Nations, only unjust force is kept from the Bodies of Ambassadors; for if the Laws of Na­tions Menander Pro­tector Justino Imper. Avaro­rum Legatos contra jus Le­gationum in vinculis habuit Cothmannum Resp. 32. num. 29. Co. Inst. 4. 153. 2. H. 5. Cap. 6. 20 H 6: Cap. 11. be broken by him, he is subject to punishment.

Yet the opinion of Nations and Men Eminent for Wisedom, have been doubtful in this point, and Presi­dents on both sides have been avouched, one which seems to refute that position of punishing such Ministers of State: the Ambassadors of Tarquin, who had com­mitted treason at Rome, Quanquam visi sunt com­misisse ut Hostium loco essent, jure tamen Gentium valuit: and as Livy observes, were in the State of Enemies; yet the Right of Nations, as he calls it, prevailed so far as to preserve them, although in a case of hostility: On the other hand, Fit reus magis ex equo bonoque quam ex jure Gentium, Bomilicari comes ei qui Romam fide publ. venerat. Salust observes, that Bomilicar, one of the Carthaginian Ambassadors, [Page 96] who came to Rome on the Publique Faith, was adjudged guilty, rather (saith he) by the Rules of Equity, then by the Laws of Nations; Equity, that is the meer Law of Nature suffers punishment to be exacted where there is found a delinquent, but the Laws of Nations except the Persons of Ambassadors; for certainly their security out­weighs An Enemy is boundtowhom they are sent, [...] their Pri­ [...]ge oblid­ [...] [...] those [...] whose [...] th [...] [...] without leave. For if they go to, or come from their Enemies, or make a [...]y hostile attemp [...] they may be slain. Livy lib. 26. the profit arising from punishment, which may be inflicted by him that hath sent him (if he be willing) if unwilling, it may be exacted of him as an approver of the crime.

VI. Again, as Ambassadors are not to render a reason of [...] actions to any other, but him by whom they are sent [...]nd it is impossible, but by the reason of various Interests and other secrets of State, which pass through their hands, somewhat may be said, which bears a show Grotius de jure B [...]li [...]c Pacis lib [...] Cap. 18 §. 4. n [...]. 4 & 5. or face of crime, (which perhaps may prove otherwise;) yet the examining and tracing of the truth, may be of a dangerous consequence, and therefore if the offence be Senatus fa­ciem secu [...] at­tulerat auctori­tatem Reip M. Tullius 8. such as may be contemned, it is usually to be dissem­bled or connived at, or else the Ambassadour be com­manded to depart the Realm; and if the crime be cruel, and publiquely mischievious, the Ambassadors may be sent with Letters of Request to his Master to inflict pu­nishment, * Co. Inst. 4. f. 152. according to the offence: So likewise in the precaution of a great mischief, especially publique, (if Sic Carolus quintus Legato Ducis Medio­lanensis ut su­bditi sui impe­ravit, ne a Co­mitatu suo ab [...]cederet, Guicciardi indicat jam loc. there be no other remedy) Ambassadors may be appre­hended and executed; and if they oppose by force of Arms, they may be slain.

In the Bishop of Rosses Case, An. 13 Eliz. the question was, An Legatus qui rebellionem contra Principem ad quem Hill. 13 Eliz. Bishop of Rosses Case Co. 4. Inst. 15 [...]. Legatus concitat, Legati Privilegiis gaudeat, & non ut ho­stis poenis subjaceat; and it was resolved, that he had lost the Priviledge of an Ambassador, and was subject to punishment; nor can Ambassadors be defended by the Law of Nations, when they commit any thing against the State or Person of the Prince with whom they reside.

[Page 97] And why Ambassadors are in safety in their Enemies Countries, and are to be spared when they commit of­fences, is not so much for their own or Masters sake, but because without them there will never be an end of ho­stility, nor Peace after Wars: neither is the Name or Per­son of an Ambassador so inviolable, either in Peace or in time of War, but there may be both a convenient time and a good occasion to punish them, and this standing with the Laws of Nations.

VII. The Signiory of Venice understanding that cer­tain Traytors, who had revealed their Secrets to the Turk, were fled for protection into the House of the French Ambassador at Venice, sent Officers to search the Ambassador's House; but the Ambassador refusing them enterance, the Senate commanded certain Cannon to be brought out of the Arsenal to beat down his House, which when he saw planted, he surrendred up the Traytors.

(1) The Ambassadors of Tarquins, Morte affligendos Ro­mani non judicarunt, & quanquam visi sunt ut hostium loco essent, jus tamen Gentium voluit.

(2) The State of Rome, though in case of most capital crimes, exempted the Tribunes of the People from que­stion August. de Leg. Antiq. Rom. during the Year of Office.

(3) The Ambassadors of the Protestants, at the Councel of Trent, though divulging there the Doctrine of the Church, contrary to a Decree there, enacted a crime equivalent to Treason, yet stood they protected from Acta Tride [...] Concilii. any punishment.

It is generally consented by all the Civilians, That Legis de jure Gentium indictum est, & eorum corpora salva Pompon. Leg. ult. D. de L [...] patis. sint, propter necessitatem Legationis ac ne confundant jura commercii inter Principes.

(4) Viva, the Popes Legates, was restrained by Henry the Second, for exercising a Power within his Realm, not allowed or admitted of by the King, in disquiet of the State, and forced to swear not to act any thing in praejudicium Regis vel Regni.

(5) On the other hand, it has been answered, that Benedict. in Vita Henr. 2. [...] [Page 98] they are by the Laws of Nations exempted from Regal Tryal, all actions of one so quallified, being made the act of his Master, or those whom he represents, until he or they disadvow, and injuries of one Absolute Prince or State to another, is factum hostilitatis, and not Trea­son; the immunity of whom Civilians collect as they do the rest of their grounds from the practise of the Roman State, deducing their Arguments these exam­ples; The Fabii Ambassadors from Rome were turn'd safe from the Chades, with demand of Justice against them Colloquium Machiav. lib. 2. cap. 28. only, although they had been taken bearing Arms with the Ethurian their Enemies. Titus Liv. 2. Dec.

(6) King Edward the Second of England, sent amongst others a French Gentleman Ambassador into France; the King upon this arraigned him as a Traytor, for serving the King of England as Ambassador, who was his Enemy; (but the Queen procured his pardon.)

(7) Henry the Third did the like to one of the Popes Ambassadors, his Colleague flying the Realm secretly, fearing timens pelli sui, as the Records has it. Edward the First restrained another of the Popes turbulent Em­bassadors, Rott. Scaccar. Westm. Claus. Edw. primi. untill he had (as his progenitors had) in­formed the Pope of the fault of his Minister, and recei­ved satisfaction for the wrongs.

(8) Henry the Eighth commanded a French Ambassador to depart presently out of the Realm; but because he was the professed enemy of the Seat of Rome.

(9) Lewis de Prat, Ambassador for Charles the Fifth, was commanded to his house, for accusing falsly Cardinal Wolsey to have practised a breach between Henry the Eighth and his Master, to make up the amity with the French King 1523.

(10) Sir Michael Throgmorton by Charles the Nineth of France was so served, for being too busie with the Prince of Condy his faction.

(11) The Popes Ambassador at Paris was arraigned for practising certain Treasons in France, against the King in the Parliament of Paris, and was there found guilty and ccommitted to Prison.

(12) Doctor Man, in the Year 1567, was taken from [Page 99] his house at Madrit in Spain, and put under a Guard to a straighter Lodging, for breeding a scandal (as the Condo Teri said) in using by Warrant of his place, the Religion of his Countrey, although he alledged the like permitted to Guzman de Silva their Ambassador in Eng­land, and to the Turke, no less then in Spain.

(13) Francis the First King of France, sent Caesar Tr [...]gosus and Anthony Rincone, Ambassadors to the Turk, they were surprised by the Armies of Charles the Fifth, on the River Poe, in Italy, and were put to death; the French King complained that they were wrongfully mur­dered, but the Emperor justified their death; for that the one being a Genois, and the other a Milanois, and his Subjects feared not to serve the King his Enemy.

(14) Henry the Eighth being in League with the French and at enmity with the Pope, who was in League with the French King, and who had sent Cardinal Poole to the French King, of whom King Henry demanded the Cardinal, being his Subject, and attainted of Treason, sed non praevaluit.

(15) Samuel Pelagii, a Subject to the King of Mo­rocco, pretended that he was an Ambassador sent unto the States General of the United Provinces; he came to them, and accordingly they did treat with him, after­wards he departed; and being upon the Sea, he did take and spoil a Spanish Ship, and then came into Eng­land; the Spanish Ambassador here having received in­telligence of the spoliation, caused his Person to be seized upon, intending to proceed against him as a­gainst a Pyrat, and imprisoned him, and upon confe­rence with the Lord Coke, Dordridge, and other Judges and Civilians, they declared their opinions, That this Caption of the Spaniards Goods by the Morocco Ambassa­dor, the same is not in Judgement of Law a Pyracy, in regard it being apparent that the King of Spain and the King of Morocco are enemies, and the same was done in open Hostility; and therefore in Judgement of Law could not be called Spoliatio, sed legalis Captio, and a Case out of 2 R. 3. fo. 2. was vouched, where a Spanish Mere chant before the King and his Councel, in Camera Scac­carii, brought a Bill against divers English-Men there in [Page 100] setting forth quod depradatus & spoliatus fuit upon the Sea, juxta partes Britanniae, per quendam Virum bellico­sum de Britannia de quadam Navi, and of divers Mer­chandizes therein, which were brought into England, and came into the hands of divers English-Men, naming them, and so had process against them, who came in, and pleaded; that in regard this depradation was done by a Stranger, and not by the Subjects of the King; and therefore they ought not to be punished, in regard that the Stat. of 31 H. 6. Cap. 4. gives restitution by the Chancellor, in Cancellaria sibi vocato uno Judice, de uno Banco vel altero; and by the Stat. of 27 Ed. 3. Ca. 13. that the restitution may be made in such a case upon proof made, by the Chancellor himself without any Judge; and upon that case it was resolved, Quod quisquis ex­traneus, &c. who brings his Bill upon this Stat. to have restitution, debet probari quod tempore captionis fuit, de amicitia Domini Regis; and also quod ipse qui eum coeperit & spoliavit, fuit etiam sub obedientia Regis, vel de ami­citia Domini Regis, sive Principis quaerentis, tempore spoliationis, & non inimicus Domini Regis sive Prin­cipis quaerentis, quia si fuerit inimicus, & sic coepe­rit bona, tunc non fuit spoliatio, nec depradatio, sed legalis captio; pro ut quilibet inimicus, capit super unum & alterum; the Judgement of which case was held to be Law, and thereupon the Judges delivered their opi­nions, that the Morocco Ambassador could not be pro­ceeded Bulstr. 3. part. fo. 28. cited in Marshe's Case. against as a Pyrat.

(16) In the time of Philippe the Second of Spain, the Venetian Ambassador in Madrid, protecting one Bo­dovario a Venetian an offender, that fled into his house, and denying the Corigidor or Justices to enter his house, where the Ambassador stood armed to withstand them, upon complaint made, the Ambassador was removed unto another house, until they had searched and found the offendor, then conducting back the Ambassador with all due respect, a Guard was set upon his house to stay the fury of the enraged People; the Ambassador complaining to the King, he remitted it to the Supream Councel: they justified the proceedings, condemning Bodavario to loose his head, and other the Ambassadors Servants to the [Page 101] all which the King turned to Banishment, and to sa­tisfy the most Serene Republique, sent the whole process to Inego d' Mendoza his Ambassador at Venice, and de­claring by a publique Ordinance unto that State, and all other Princes, That in case his Ambassador should commit any offence unworthily, and disagreeing to their qualities and professions of Ambassadors, they should not enjoy the Privi­ledge of those Officers, but would refer them to be judged by the Laws of that Prince or States where they then re­sided, and where they had injured, it was a great and a noble Saying. Sir Henry Woot on fo. 211. stat. Cris.

(17) In the Year 1568, Don Guhernon d'Espes was ordered to keep his house in London, for sending scan­dalous Letters to the Duke de Alica unsealed, and in Vide Sir Ro­bert Cottens posthum. and the Proposit. to K. James. 1586 Don Bernardino de Mendoza, was restrained first, and after commanded away.

(8) The manner of proceeding against them, has been conceived necessary to be that some of the Chief Secre­taries of State were sent to the Ambassadors, and by way of advice, that understanding that the Common People having received notice of, &c. ‘And that they cannot but conceive a just fear of uncivil carriage to­wards their Excellencies or their followers, if any the least incitement should arise, and therefore for quiet of the State, and securing of their Persons, they were bound in love and respect to their Excellencies to re­strain as well themselves as followers, untill a further course be taken by legal examination, where the asper­sion began, the same being in their opinions the best and the only way to prevent the danger, &c.

Sometimes, if the Parliament be sitting, the King acquaints the Lords, and then departing, who having had conference with the Commons, conclude of a Message to be sent to the Ambassadors, (either by requiring an account of the matter or confining of them) the Persons to be sent, the two Speakers of both Houses, with some convenient number of either, having their Maces, or Ensigns of Offices born before them to the Ambassadors Gates, and then forborn; and then requested speech with them, let them know that a relation being made that day in open Parliament of, &c. they were deputed from both [Page 102] Houses, the Great Councel of the Kingdom, to the which by the fundamental Laws of this Nation, the Chief care of the Kings safety, and the Publique Peace and quiet of the Realm is committed; and that they were no less the High-Court of Justice, or Supersedeas to all o­thers, for the examining and punishing all attempts of so High a nature as, &c. if it carry truth, and having executed their Commission, concluded that the Houses, to show that reverence which they bear unto the di­gnity of his Master, by their Message, they two that never are imployed but to the King alone, were at that time sent, &c. and if the Houses shall upon re­ [...]n of their Speakers conceive their answer (if it be a matter that requires it) are such as may justly deserve th [...] being confined, they then make an address to his [...] [...] to confine them to their Houses, restraining their [...]ure untill the Prince or State, whom they repre­ [...] [...] [...]cquainted with their offence: And so it was [...] [...]n 44 H. 3. to the Popes Legates in England, and 28 E. 1.

XI. If a Foraign Ambassadors, being a Prorex com­mits here any crime which is contra jus Gentium, as Treason, Felony, Adultery, or any other crime which is against the Law of Nations, he looseth the Priviledge and di­gnity of an Ambassador, as unworthy of so high a Place, The opinion of the Lord Coke 4. Inst. 153, &c. and may be punished here as any other private alien; and not to be remanded to his Soveraign but of courtesy.

X. But if any thing be malum prohibitum by any Act of Parliament, private Law or Custom of this Realm, which is not malum in se jure Gentium, nor contra jus Gentium, an Ambassador residing here, shall not be bound by any of them, but otherwise it is of the Sub­jects of either Kingdom; for if a French Merchant or Spanish Merchant trades or imports any prohibited Goods, he must at his peril observe the Laws of England; and so it was adjudged Pasc. 33 Eliz. in the Exchequer, Tom­linson, qui tam versus Henry de Vale & [...]l. upon the Stat. of 19 H. 7. Ca. 21. but if an Ambassador imports any prohibited Goods econtra.

[Page 103] In Causes Civil.

XI. The Office of an Ambassador does not include a procreation private but publique, for the King his Master, nor for any several Subject otherwise then as 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 Hobart f. 71. 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 [Page 104] 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 Distingui ferme ac in re solent crimine. Vide [...]utam l. 10. ubi Rex Galliae hans ab causam [...]ratus [...]acatur. Vide euadem lib. 11. † Grot. de jure Belli ac Pacis l. 18. §. 4, 5, 6, 7. 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 Rex facisne metu regium nuntium populi Romani Quiri­tum vasa co­mitesque meos: yet an Eject­ment hath been brought and left at the house of the Ambassa­dor, and it was allowed good, and con­ceived no breachof their priviledge in the case of Monsieur Co [...] ­bert, for York House. Mich. 28 Car. 2. in Banc. Reg. 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; Grot. de jure Belli ac Pacis lib. 2. cap. 18. 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, Co. Inst. 4. 153. Certain it is that none dareth presume to meddle either with their Persons, Goods or Servants, without leave had, the contempt of which has been punish'd with imprisonment. 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 [Page 501] 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 13th. with whom he resided at Paris, coming one day Barkseate in memor. Grotii. 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 [Page 106] 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 Bodinus de Repub. l. 3. 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 Jac. Aug. [...] l. 27. [...]ta Augu­ [...] Barbadico [...] of Ve­c [...]. 1 86. 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, and had given notice to the Senate, rich, well allied, and had good Friends, they sent express command that he should re­sign the Patriarchship, otherwise they would take from his Father the Procuratorship of St. Marke, and confiscate all his Estate.

But if such Ambassadors have received any Present, Guift or Reward from any Forraign Prince or Repu­blique, and such Ministers of State are thought worthy of retaining the same, such a grace must pass by the suf­frage Paulus Par [...] ­ta in Hist. Ve­nice lib. 7. of the Senate, to oblidge them more to the be­nivolence of the Republique, then to the bounty of any Forraign Prince.

CHAP. VII. Of the Right of delivering Persons fled for Protection.

  • I. Where Superiors may become culpables for the crimes of their Subjects.
  • II. Of punishment, in whom lod­ged, and where offences to an­other Prince seem to be exce­pted.
  • III. What is meant by the words delivering up, and how con­strued in divers Countreys.
  • VI. To what crimes it can ex­tend to.
  • V. Such Persons have been refused to be delivered up, and on what reason deny'd.
  • VII. Admitting not compellable, whether he ought voluntary.
  • VIII. Of Persons running away with the Revenue, wheter to be delivered up by the Persons into whose Countrey they fled.

I. FAthers are not bound for the fault of their Children, nor Masters for those of their Servants; nor Princes for the Actions of their Subjects, unless they be­come Zeno intercee­ding for the Magnets to T. Quintus, and the Legates, with him be­sought them with tears; ne unius amen­tiam civitati assignarent, suo quemque peri­culo facere. Li­vy lib. 40. partakers in the crime; the which may be done in two respects, by sufferance and receipt; therefore if Princes shall suffer their Subjects by Pictures or Libells to abuse another Nation or Common-wealth, it is the same as if they should authorize it. Brutus to Cicero, How can you make me guilty? yes, well enough, if it were in you to hinder it; but receipt may admit of some fur­ther scrutiny.

II. Common-wealths being instituted, it was agreed that faults of particulars, which do properly belong to their own society, should be left to themselves and their Soveraigns, to be punish't or connived at, as they jud­ged most fit.

Yet that Right is not so absolute left to them, but of­fences, which tend to the destruction of Society or Go­vernment, whereof Treason is the chiefest, may seem to be excepted; the which if a Subject shall commit an act, tending to the subversion of his Soveraign's Government, the same is an offence that's subject to an unversal pu­unishment, i. e. it is to be punished every where, and the [Page 108] Governours into whose Territory such fly, seem to have a Right of prosecuting for the offence: in civil actions, which tend to Commerce that supports Society, the Sub­ject of forraign Subjects having justly contracted in their own Countrey, may obtain justice in another by a stron­ger reason it is thought that Princes or Republiques that have received publique injuries, have right to re­quire punishment for the indignity that is offered them, at least for that which tended to the subversion of their Governments.

III. The question is illustrious, opinions grounded on several great Presidents have been both waies, pro­duced, generally it hath been held that those Kingdoms where the offenders are fled, ought to do one of the two, either punish them according to their deserts being called upon, or leave them to the Judgement of the of­fended State, others the contrary; most certain it is by For the know­ledge of the cause ought to proceed the dedition; non decet homines dedere causa non cognita Plutarch in his Romulus. the delivering up, is understood, to leave him to the le­gal Judgement of that Prince or State, whom he hath offended: And such was the Declaration of Ferdinando King of Spain, who had been often requested by Henry the Seventh to deliver up Edmund de la Poole Earl of Suffolke his Subject, then fled for protection to that Prince's Countrey, but was alwaies refused; but being continually importuned by promises that he should not be put to death, caused the Earl to be delivered up Attainted by Act of Parlia­ment 12 H. 7: Co. Inst. f. 180. to him, who kept him in prison, and construing his promise to be personal to himself, commanded his Son Henry after his decease to execute him, who in the fifth Year of his Reign upon oold blood performed the same: But the malice of that Politique Prince the Father, and 5 H. 8. vide Lord Herberts Hist. of Henry the Eighth. Pipin receiv'd and would not deliver up those that fled to him out of Newstria, op­prest by Ty­ranny. Frede­degar. in reb. Pep. an. 1188. the uncontroulable Will of the Son are Presidents, but of small force; the example of which not long after gave the French King occasion to beware of trusting the latter with a Subject of his on the like occasion, for Cardinal Poole not many Years after, coming Ambassador from the Pope to the French King, they both being then in amity, and Henry the Eighth in League with the latter, but in enmity with the first, requested to have the Cardinal delivered up, but could not prevail, being doubty ar­med as the Ambassador of a Soveraign Prince (for such [Page 109] is the Pope) and in the Territory of a Forreign State.

The Israelites require of the Benjamites to deliver'd up the wicked Men, the Philistians Sampson, Cato gave his vote that Caesar should be delivered to the Germans, for spoiling them without just cause; nor are nocent Persons injured, if they are are either deliver'd up, or punished; yet does it not thence follow that they must be delivered up or punished: the Romans delivered up those that had done violence to the Cathaginian Am­bassadors.

IV. But then and as in this last, so in all other the offender must have committed some publique offence, Yet out of Churches be­yond Seas for private offen­ces, which are universal San­ctuaries, the offenders have been taken out in Lusita­nia, Ferdinand Lord Cham­berlain was taken by force out of the Church and burnt, for for­cing a Noble Virgin. Ma­riana lib. 11. Charles Duke of Burgundy delivered up to Lewis the 11th. the Earl of St. Paul, Constable of France, who flying to some of his own Cities, obtained Letters of Safe-Conduct to come and commune with the Duke, in order to the making his peace with the King, but the Duke after he had him in custody, delivered him to the King of France, who immediately after cut off his head. Phil. Comines lib. 4. c. 12. as Treason; for most certain it extends not to private injuries, because there is no President that ever at a War was begun for such, though they may contribute much, but for those which tends to the subversion or ruine of a Countrey, they often have been delivered up; Jugurtha of Bocchus in Salust, So shalt thou at once free us from the sad necessity of prosecuting thee for thy error, and him for his treason. And by most Writers it is agreed, that such offenders must either be delivered up or pu­nisht, the election is left to their choise, into whose Territory they are fled; though some have held, that in case of protection Ludovicus Pius, the Emperor, received those that fled to him from the Roman Church, as appears by his Decree anno 817. and Luther himself did not want Princes to protect him from the fury of St. Peter's Chair. Vide his Colloquiums printed in London an. 1663. the Sanctuary for such unfortunate Persons, Princes do make their Coutrey an Asylum.

T. Quintus Flaminius, sent Ambassadors to Prusias King of Bithinia, for the procuring the delivering up the Brave but unfortunate Hannibal, who accordingly being seized on, I will now, saies he, deliver the Romans of that fear which hath so many Years possest them; that fear which make them impatient to attend the death of Livy: vide Sir Walter Raleigh lib. 5. cap. 6. [...]. 2. an old Man: This Victory of Flaminius over me, which am disarmed and betray'd into his hands, shall never be [Page 110] numbred among the rest of his Heroical deeds: No, it shall make it manifest to all the Nations of the world, how far the antient Roman virtue is degenerate and corrupted; for such was the Nobleness of their Fore-Fathers, as when Phyr­richus envaded them in Italy, and was ready to give them Battle at their own doors, they gave him knowledge of the treason intended against him, by Poyson, whereas those of a latter race have imploy'd Flamineus, a Man who hath here­tofore been of their Consuls to practise with Prusias, con­trary to the honour of a King, contrary to his faith given, and contrary to the Laws of Hospitality, to slaughter or de­liver up his own guest.

V. What ever the opinion of those Writers have been, the practise of latter Ages have seemed to incline otherwise. Queen Elizabeth demanded Morgan and o­thers of her Subjects fled into France, that had com­mitted Treason against her; the answer of the French King was, Si quid in Gallia machinarentur, Regem ex jure in illos animadversurum; sin in Anglia quid machinati fue­rint Regem non posse de eisdem cognoscere, & ex jure a­gere; omnia Regna profugis esse libera Regum interesse, ut sui quisque Regni libertates tueatur, imo Elizabetham non ita pridem, in suum Regnum Mountgumerium, Principem 34 Elizabethae Cambden f. 35. Condaeum, & alios e Gente Gallica admisisse, &c. and they were never delivered up; but the like was not return­ed by the King of Scotland, for he promised that he Vide Cambd. anno 1585. would transmit Fernihurst and the Chancellor too, if they were convicted by a fair Tryal; the Cry of the late ROYAL MARTYR's Blood justly procured some of those Regicides to be delivered up by them of Holland.

VI. Most certain it is if War be threatned to a Na­tion An. 1660. or People, if they deliver not up the offender, though perhaps he is innocent, and that such is the malice That politik Princes gave the Scots a more equita­ble answer, when they demanded Bothwell, she answered, that she would ei­ther render him up, or send him out of England, Cambden annh 1593. of his enemies that they know they will put him to death, yet he may be deserted; especialy if that Nation or King­dom is inferior to the others; but then the same ought not to be done rashly: The Italian Foot that forsook the unfortunate Pompey, before all was lost, being assured of Quarter from the Victorious Caesar, were condemned by most that reported the Story of that day.

[Page 111] Pope Alexander (in that mortal Feude becween him and the Emperor Frederik, who favoured Octavian the Antipope) fled disguised to Venice, the Duke and Senate being jealous that the Emperor would demand him, sent an Ambassy to the Emperor to endeavour a Mediation and Peace, which was no sooner offered, but the Em­peror break forth into a rage, bidding them go home, saying; ‘Tell your Prince and People, that Frederik the Roman Emperor demands his Enemy, who is come to them for succour, whom if they send not presently bound hand and foot with a sure Guard, he will proclaim them Enemies to him and the whole Empire, and that there is neitheir Alliance or Law of Nations which shall be able to free them from revenge for such an injury, to prosecute which, he is resolved to overturn all Divine and Human Laws, that he will suddenly bring his forces before their City, and contrary to their expecta­tion, plant his Victorious Eagles on the Market-place of St. Marke. This Message being faithfully delivered, the Hist. Rep. Ven. in Vita Teba­stiano Cynei Duke of Ve­nice An. 1164. Senate decreed Arms, Arms; and while they were pre­paring, news was brought that Otho, the Emperor's Son and General of the Caesarian Fleet, was entered the Gulph with 7 5Gallyes, the most valiant and religious Teba­stiano Cyani resolved to meet him, and having encoun­tred them on the Coast of Istria, defeated Otho and all his Naval forces, taking 48 Gallyes, Otho their Admiral and the rest either burnt or distroyed; he returned in Triumph for Venice, and not long after Frederik became converted, that Heaven fights the Batailles for the Inno­cent, and on his knees begg'd pardon of the Pope.

Lewis the 11th. of France, required by Ambassadors of Phillip Duke of Burgundy, the delivery up of Sr. Oli­ver de la Marche; who being a Burgundian, had wrot (as was conceiv'd) somewhat against the claim of the French to several Territories, upon a publique audience at Lisle they were answered by Duke Phillip, That Oli­ver was Steward of his House, a Burgundian by birth, and in no respect Subject to the Crown of France; not­withstanding Phil. Comines lib. 1. cap. 1. if it could be proved that he had said or done any thing against the Kings Honour, he would see him punished according as his faults should deserve.

[Page 112] But admitting that such an Innocent Person ought not to be delivered up, whether he is bound to yield himself, by some it is conceiv'd he ought not, because the nature of Civil Societies, which every one hath enter­ed into for his own benefit, doth not require it, from which it follows that such Persons are not bound to that by right, properly so called, it doth not follow, but in charity he seems bound to do it, for there be many offices not of proper Justice, but of love, which are not only performed with praises, but also cannot be omitted without blame; and such indeed is the act of such a Persons voluntary yielding up himself, preferring the lives of an Innocent multitude before his own. Cicero for Idem de fini­bus 3 Vir bo­nus & sapiens, & Legibus pa­rens, & civilis officii non ig­narus, utilitati omnium plus quam unus alicujus aut suae consulit. And in Livy there is a most excellent saying of some Molosians, E­quidem pro Patria qui lethum oppetissent saepe fando audivi: qui Patriam pro se per­ [...]e aequum censerrent, hi primi inventi sunt. Livy lib. 45. P. Sextus, If this had happened to me sailing with my Friends in some Ship, that Pyrats surrounding us should threaten to sinck us, except they would deliver me, I would rather have cast my self into the Sea, to preserve the rest, then to bring my Friends either to certain death, or into great danger of their life: The Request of the Noble Strafford is fresh in our memories.

VII. But whether such an Innocent Person may be compelled to do that which perhaps he is bound to do, may be a question; Rich Men are bound by the pre­cept of Mercy to give alms to the poor; yet cannot be compelled to give: It is one thing when the parts are compared among themselves; another when Supe­riors are compared to their Subjects, for an equal can­not compell his equal: but unto that which is due by right strickly taken; yet may a Superior compell his In­ferior to things which vertue commands; in a famine to bring out provisions they have stored up, to yield him Leg. Desert. to death that deserts his Colours, or turns coward to mulct those that wear excessive apparel: Co. Inst. 3. fo. 199. And the like Plutarch Pho­cion. Fides agi visa deditos non prodi. Livy lib. 7. Satius judicemus esse paucos aliquos mala ferre, quam immensa [...] multitudinem. Phocion, pointing to his dear Friend Nicocles, said, Things were come to that extreamity, that if Alexander should de­mand him, he should think he were to be delivered up: It [Page 113] hath seem'd that such an Innocent Person might be de­serted and compelled to do that which Charity requires; The Son of Pompey was so worthy a Son of so great a Father, that he contended with Anthony and Augustus, about the Empire of the World; this Pompey entertaining Anthony and Augustus in his Gally; the Captain which commanded it, demanded leave of him to weigh Ancor and to carry away his guests, and to make prisoners of his Rivals: he answered him, that he ought to have done it without telling him of it, and should have made him great, without having made him forsworn: cer­tainly, an honest Person will never be of the mind of this Captain; therefore in such extremities, Councellors either for high advantages, or in the great necessi­ties of their Prince, should serve their Masters with their Estates and Goods, but not with their Honour and Conscience. but the late ROYAL MARTYR seem'd of another opinion, when he came to dye, in the case of the British Proto-martyr Strafford.

VIII. Persons that have wrong'd or defrauded Kings of their Revenue, especially in England, upon Letters of Request to those Princes, whether they have fled, have been delivered up.

Some Florentine Merchants of the Society of the Stri­scobaldi, being made Collectors and Receivers of the Kings Customs and Rents in England, Wales, Ireland and Gascoigne, running away with those Moneys, together with all their Estates and Goods for Rome, the King sent his Letters of Request to the Pope, desiring that they might be arrested, their Persons and Goods, and Rott. Rome A [...] 4 E. [...]. M. 17▪ Dorso. sent over to satisfy him the dammages he and his Subjects had sustained by them, promising not to proceed against them to the loss of their limbs and lives. Upon which Letters the Pope seized on their Goods, and not long Rott. Rome 4 E. 2. M. 16. 4 Dorso. after the King Writ for the seizing of their Persons, for answering of other frauds and injuries.

The like was done for one Anthony Fazons, who had received 500 l. of this Kings Moneys, and running away with it to Lorraine, the King writ to the same Duke, Claus. 8. E. 2. M. 31. Dors [...]. pro Rege. desiring that search might be made, and his Person seized upon in every place within his Territories, till he should satisfy the said 5000 pounds.

CHAP. XIII. Of Contribution pay'd by Places Deuter, to both Armies in War.

  • I. Considerations general, touching the same, and the chief matters that are objected by those that scruple thereat.
  • II The case stated generally in the question propounded to our Sa­viour of paying tribute to Caesar.
  • III In the payment of Contribu­tion to an Enemy, what is ne­cessary to be distinguisht in the beginning of a War.
  • IV. Of a second distinguishment drawn out of the first, of such payments, when a War is actu­ally formed.
  • V. Where a Man payes, but mis­likes the cause, whether excu­sable, the War not yet actually formed in the place.
  • VI. Where a Country is fully pos­sest, whether payment then is lawful.
  • VII. Of the State of those that live on Frontiers, their condition considered as in reference to procure their peace by Contri­butions.
  • VIII. Of interdiction by him to places from whom saith is ow­ing, Contribution notwithstand­ing being pay'd, whether the same creates an offence in them.
  • IX. Of the genuine construction of such interdictions according to the true intention of the same.
  • X. Of the impunity and punishment that such innocent offenders may be subjected, in case of being questioned for the contempt by their right Governours.

I. THe most excellent Grotius having most incompara­bly treated on, and cleared all the important objections against a just War, together with the incidents of the same, yet this one main of Contribution or paying to both Armies, whether lawfull, he has not touched in any other words but these, Quod sub tributo utrique part [...] [...]raestando factum due in Belgico, Germanico, bello nu­ [...] [...]dimus; estque id consentaneum mori veteri Indorum: [...] [...]d so cites a saying in Diodorus Siculus, * of the Peace that those People maintained in their possessions by reason of such Contributions, but to many Persons that instance of this without further scrutining, proves insufficient; for that there are many who not finding this liberty in their consciences, unnecessarily choose rather to give up their [...] to restraint and to abandon their whole means [Page 115] of subsistance in this World, both for themselves and their Children, (which ought not fondly to be done, un­less we would be worse then Infidels, as St. Paul saith) they ground their resolution on this reason, that they know not whether the Moneys they give may not furnish to the destruction of many Innocents, and perhaps the just Magistrate; yea, and the total subversion and ru [...]n of their Countrey, Liberty and Religion: and therefore though Men give and bestow what they please with their own, yet in such cases they may not; therefore it may not be impertinent for to examine whether thes be necessary scruples in themselves, and such as admit of no exception of liberty, or whether those scruples be reasonable, or indeed meer scandal.

II. The Scribes and Pharisees sought two waies to entrappe Our Saviour; one was as if he had blasphe­mously taught a new Religion, and a new God, (viz. himself) they hoped the People would be provok't to stone him for this, according to the Hebrew Law: Deut. 13. The other was, to bring him within the compass of Treason, as if he could not lead great Multitudes after him, without trayterous designs; but this gin failed too, because the Multitudes which followed him, was alwaies ready to defend him. However, when he was at Hie­rusalem, where the Roman Troops and Praetor were, they thought they had him sure, by propounding this sub­ject to him:

Is it lawfull to pay Tribute to Caesar? which was as much as to say, We, who are descended from Abraham, and are the peculiar People, to whom God hath given the large Priviledges of the Earth at home, to bath our selves in Rivers of Milk and Honey, to have full Barns and many Children; yea, that GOD himself will be adored in no other place of the World but at this our Hierusalem, and that abroad we should triumph over the Barbarous and uncircumcised World by virtue of that Militia; which he never ordered for any but our selves, how are we then in duty or conscience to submit now to the Ordinances of the Uncircumcised Romans? or what right can he have to exercise supream Jurisdiction over us, the priviledged Seed of Abraham, by levying of [Page 116] taxes on our Estates and Lands, which GOD himself laid out for us, by which means the Emperor and Senate hold this very Temple in slavery, and insult over our very Consciences and Religion, by defiling our very Sacri­fices with the mixture of impure Blood; which as they are the price of our Blood, and a Tribute far above Cae­sars, (payable in no other place but this Temple, which GOD himself built) so our Blood ought not to seem too dear to be sacrificed for the liberty of these; and though the Roman State could pretend, yet what can this Caesar pretend? every Man's Conscience knows that it was but the other day he usurpt over the Senate, in which resides the true Jurisdiction of Rome; and if that were otherwise, yet how can he pretend to a Title, unless poyson be a pedigree or violent usurpation, a just Election, by which he who is but the greatest Thief in the World, would now pass for the most Soveraign and Legislative Prince? How then are we in conscience ob­lidged to pay Tribute to this Caesar? Though those Lawyers thought in their Consciences that they were not to pay it, and that Our Saviour likewise, as Jew, thought so too; yet they supposed he durst not say so much in the crowde; nor yet deny it by shifting it off with si­lence, left the Roman Officers should apprehend him: But when Our Saviour shewed them Caesar's Face upon the Coyn, and bad them Render to Caesar that which was Caesar's, and to GOD that which was GOD's: His an­swer ran quite otherwise, not as some would have it, that by a subtility he answered not to the point pro­posed, for then the sense of the whole Text would sound very ill in such tearms, viz. If there be any thing due to Caesar, pay him it, and if any thing is due from you to GOD, then pay it likewise. This had been a weakening of GOD's Right for Caesars, and to have left a desperate doubting in a necessity: 'Tis beyond all cavil that Our Saviour's opinion was positive for pay­ing of Tribute to that Caesar; because de facto he did pay it, and the plain reason of it appears evidently in Matth. 22. 20. this his Answer: Caesar's Face was upon the Coyn, that is to say, Caesar by Conquest was in possession of that Coyn, by possessing the place where he oblidged them [Page 117] to take it; Coyning of Money being one prerogative of Soveraign Power. Coke 3. Inst. fo. 16, 17.

III. But to come more close to the question whe­ther Contribution may lawfully be pay'd, perferre & in­ferre bellum; the one is active, and properly at the be­ginning of a War, and in a place where yet no War is, and where its cause only, and not its effects can be considered; in this case every thing ought to be very cleer for warrant of a Man's Conscience, because of the calamities which he helps to introduce, and is in some manner the author of: the other is passive, and there where war or the power of war is actually formed, which is the case of this discourse.

IV. Secondly, we are to distinguish betwixt that which cannot be had, nor the value of it, unless we ac­tually give it, and that which may be taken by the Law of War whether we contribute I or no.

V. Most certain it is though a War be not yet actu­ally formed in a place, yet a scrupling conscience, which likes not the cause, may be excused in contributing to it in this one case, viz. if some number of Men able to take what they ask, demand (with an armed power) the payment of a certain some to be imployed in War, then in such a case, Man, whom we suppose, may pay it as a ransome for his life, or give it as a Man doth Procopius in the third of Gott [...]. of Toti­las, when he beseiged Rome, saith, Agrico­lis interim per omnem Italiam nihil mali in­tulit, sed jussit eos ita, ut so­liti erant ter­ram perpetuo, securos colere, modo ut ipsum Tributa per­ferent: This, saith Cassio­dore, is the greatest praise, 12. 15. his purse, when he is surprised 4 H. 4. 2. in the High-way; be­cause to this Man it is as much as if the whole Countrey were possest with an armed power: So several Dutchies and Segniories dependant on the Empire, do in the pre­sent War between them and the Crown of France, pay Contribution at this day.

But if the Person or Country be not for the time in the full possession of him, whose cause he scruples at, and that he or they have not a probable fear of extream danger, nor as probable assurance that without his help, the thing demanded nor its value can be taken from him or them; then there's little excuse remains for the act, because the very act (which his conscience dislikes) participates more of action then of passion.

VI. But where a Man or City is fully possest by an invading power (be the same just or unjust) from whom [Page 118] he or they cannot fly, nor remove their substance; most certain the payment of Contribution is no gift, no more then he, (as above) who with his own hands being set upon by Pyrats or Robbers, puts his purse into their hands; for the Law calls not that a gift 44 E. 3. 14: H. 4. 3. [...] 3. Inst. f. 68. nor excuses the party from taking it: And though the parties may imploy the same to the destruction perhaps of Innocents, and the like; yet that is an action out of their power, that give as far as winds and tempests are, to which two, as we contribute nothing, so we cannot be scrupulous in our [...]iences concerning their bad effects; nor is the same [...]ut to the Canon Law*, (which teaches us hu­ [...], [...] and the imitation of all their vertues,) and [...]fore persons, whose lives are innocent and harmless, will not have subjected to danger or plunder, which hardly can be avoided without Contribution or Tribute.

VII. Again, those that live on Frontiers, whose con­dition are more ticklish and deplorable, because they are not fully possest nor taken into the line of either party these live as it were in the Suburbs of a Kingdom, and enjoy not the security or priviledges of others, yet such Persons may lawfully contribute to both, for though they be but partly possest by one, and by the other, in respect of their suddain abandoning them, yet both parties have the power of destroying them wholly, wherefore those former reasons which justify those fully possest, do also acquit the payments of those, for their conditions here is more calamitous, seeing they are really but tenants at will, exposed to a perpetuall alarm, and that both parties wound one the other, only through their sides, as those this day that are scituate between France and Germany, for being perhaps Neu­ters in the War, they are in that case by the Law of Arms to shew themselves equall to both, Exemplum nobile vide a­pud Pautam lib. 8. Grotius lib. 3. cap. 17. in permit­ting of passage, in affording provisions for the Armies, in not releiving the beseiged.

VIII. Nor can the interdiction of him, to whom such ow faith and obedience any waies create the same an offence, since the declared wills of our Governors cannot make all those of our acts sins, when we obey or submit to that power, which is against our wills, (as [Page 119] much as against theirs, and it may be with more of our misery) hath divested them of the power of their rights, and deprived us of the power of their Govern­ment; and by the Laws of War, they who have over­come, should Govern those whom they have overcome; and therefore whatsoever is exacted by the Conquerors, may justly be pay'd by the Conquered. Grotius de [...] Jure Be [...]i ac Pacis l. 3 c. 8.

And since Princes by their commands cannot change the nature of humane condition, which is subject na­turally to those fore-mentioned changes; it would seem exceeding hard to oblidge us to almost morall impossi­bilities, and though those politicall commands were as Laws, yet doubtless they ought not to be oblidging; but according to the Legislative rule, which is cum sensu Jure hoc eve­nit ut quod quisque ob tu­telam corporis sui, [...] fe­cisse existimur. humanae imbecillitatis, this is that which usually is call'd the presumptious will Leg. ut vim. D. de just. & jur. of a Governor, or the mind of a Law: for in extream necessity it is to be presumed that both their wills proceed from the rigour of what they have declared, rather then by holding to that which is their supposed right, introduce certain miseries and confu­sion: without receiving any benefit thereby to themselves. Nor could they of Utrick, and others of the Conquered Cities in Holland, abandoned afterwards by the French, entirely preserved from destruction, be condemned by their Confederates, for the sums by them promised to the Enemy for the preservation of the same.

Neither are such Commands or Interdictions without their sense and profit, though they be not positively obeyed, And that is apparently e­vinced, by the Laws of Lea­gues; for such being made, the same re­mains al­though the same King, or his successor be driven out of his Kingdom, for the right of the King­dom remains although he hath lost the possession. Grot. de Jure Belli ac Pac [...]s l. 2. c. 17. §. 19. for thereby Governors shew to all the world, that they re­nounce no part of their right, no, though it be there where they cannot exercise any part of their just power.

IX. Now the true intentions of such Commands or In­terdictions is, that the Enemy should not by any means be assisted or strengthned; but if such prohibitions should be obeyed; nay at such a time, when they and all their substance are absolutely possest by the Enemy; most cer­tain such commands dash against themselves, and the one countermands the other; for if they refuse to sub­mit in such a case, then they do that which advantages their Enemies: Because at that time they will take all, whereas in case of submission they ask but a part.

[Page 120] X. In all Wars there are alwaies some, by whose dissasse­ctions, Enemies gain more then by their complyance, just as Physitians do by distempers.

And although, by after variety of successes, the just Governor should recover that place, which so submitted to the power of their Enemies, and for that reason should punish those that were plyable to extream ne­cessity; yet it follows not upon that, that they who so conformed, sinned, or did that which was absolutely un­lawfull; for we well know that reason of State oft calls for Sacrifices, where there is no fault to expiate: Ostro­cisme and Jealousy make away those, who are known In Reipubli­cam idem est nimium, & ni­hil mereri. to deserve most, but in strickt right (which is the term of this question) the just governour ought to look up­on them as more unfortunate then faulty.

CHAP. XIV. Of the Naval Military part.

  • I. The advantage that Princes have by a good Commander.
  • II. The love that naturally pro­ceeds from the Mariners to those that are valiant and generous.
  • III. Princes in prudence ought not to listen too much to the com­plaint against Commanders.
  • IV. Of the faults generally consi­dered in Soldiers and Mariners.
  • V. Of the punishments that gene­rally wait on such offenders:
  • VI. Of Drunkeness, Swearing, and other such sort of impieties, not to be suffered in Fleets.
  • VII. Spies, if lawfull to use them by the Laws of Nations, but being deprehended are to suffer death; and how they are to be dealt withall by the Laws of England.
  • VIII. It is not lawfull for a Friend or Neuter to relieve an Enemy, and Persons so offend­ing, how punisht.
  • IX. Ships taken as prize, the Ship papers and other matters con­cerning the same, are to be pre­served.
  • X. Of things taken and acquired in War, how the right of them becomes vested in the Captors, and how that is to be understood by the Law of Arms.
  • XI. To steal the Cables or other furniture of the King of Eng­land's Ships, how punishable at this day.
  • XII. Ships surrendred and vo­luntarily surrendred, how to be dealt with, and whether those that shall resist it, if entered by force, whether quarter may be refused.
  • XIII. Ships of War generally ought not to be yielded, but if entered or disabled, whether they may not accept of a quarter, standing with the Oath called Sacramentum Militare.
  • XIV. Of obeying Orders, the same ought to be punctually to be fol­low'd; and if broken, though the Act succeeds well, whether the same subjects not the actor to punishment.
  • XV. of the obligation incumbent on Commanders and Souldiers to behave themselves valiantly, and the right of slaying an Ene­my, where lawfull.
  • XVI. Ships how oblidged by the Law of Arms for the assistance of one another, and of the duty of those that have Fleets under their Convoy.
  • XVII. An Enemy beaten ought to be pursued, and how far it is lawfull to slay such flying with their lives in their hands by the Laws of Arms, and how the reeking sword ought to be go­verned.
  • XVIII. Persons exempted from the sword, by the Laws of Na­ture, Nations, Civil and Canon, and by the Municipall Laws of some Countries.
  • XIX. Mutining how esteemed, va­lued and punished at this day by the practise of Armies, and by the Laws of England.
  • XX. Whether it be lawfull to de­coy the Subjects Souldiers, or Ma­riners of an Enemy, to forsake his Prince or General, and to bring over his Men, Ships, or Arms, and where by Law they may be [Page 122] received; and how such deserters may be punished by the Laws of Nations, and of England.
  • XXI. Of Seducers, Message Car­riers and Decoyers of Souldiers, how to be handled by the Law of Arm.
  • XXII. Of those that shall disobey or strike their superiour Officers, how punishable.
  • XXIII. Of mutening, and those that shall act in the same how punished, though they have a just cause of complaint:
  • XXIV. Of the care incumbent on Commanders and Masters of the Great Ships, as in reference to their safety, and the punishment of wilfull burning and destroy­ing them.
  • XXV. Of the general offences at Sea, how punished.
  • XXVI. Court Martials how ere­cted, and what operation their Judgements have, and upon whom.
  • XXVII. Judges, and Advoca­tes, Power as in reference to give an Oath, and the Admi­ral's power how limited to the punishing of offences.
  • XXVIII. Of maimed Souldiers and Mariners, and the provi­sions that the Law makes for them at this day.
  • XXIX. Of Triumphs.

I. AN Excellent Generall is an evidence of the Fortune of a Prince, and the Instrument that occasions the happiness of a Kingdom; and therefore when GOD makes choise of a Person to repair the disorders of the World, or the good of a particular State, then is his care shewed in the furnishing him with necessary Principalls to undertake great matters; the thoughts are put in his Soul by that eternall Commander to execute, he troubles and confounds his Enemies, and leads him as by the hand [...]o Victories and Triumphs: And one of the greatest expedients whereof he serves himself for this purpose, is to raise unto him excellent Men, both in Courage and Conduct, to whom he communicates his care, and who help him to bear the weight of Affairs. Alexander had never conquered Asia, or made the Indies to tremble, but for Ephestion, Parmenio and Clytus; Caesar gained many a Bataill by his Lievtenants, and the fairest Empire of the World, which ambition and evil of the times had divided into 3 parts, was reduced under the Dominion of Augustus, by the valour of Agrippa; Justinian triumphed over Persia, and destroyed the Vandalls in Affrica; and the Goths in Italy, by the aid of Bellisarus and Narcete: And it is most certain, that Noble Commanders are the Glory of their Princes, and happiness of the People; on the other hand, base cowardly and treacherous Generals, are the shame of the one, and the dispair of the other.

[Page 123] II. Hence it is that Souldiers and Mariners draw their lines, either of love even to the mouth of Canons with a good Generall, or mutiny and hate to the main yard end against one that is bad, for to obey them who are not their Soveraigns when they do them hurt, when they insult and are cruell in cold blood, and base, cow­ardly, or treacherous in Bataill, is a sad necessity for them, and a hard essay of patience; yet must they be obeyed, and the Souldiers and Mariners must not rebell or repine, but submit till the Soveraign redresses the misfortunes.

III. Again, Princes ought not to listen too much to the mutinous demands of the Crew, or any others, whose ambition watches their ruin, whereby to conceive an­ger against this Commanders; for it is easier to purge out the choler and discontent that is got under the hatches, then to provide Commanders of Conduct, Courage and Faithfulness to govern their Expeditions. Bellisarius, that most excellent Commander, who had no other crime then his Reputation, and was not culpable, but that he was powerfull, having conquered Persia, subdued Africa, humbled the Goths in Italy, lead Kings in Triumph, and made appear to Constantinople somewhat of Old Rome, an Idea of the Antient Spendor of that proud Reipu­blique; Procopius Hist. Vandall, in Vi­ta Bellis. after all his Eminent Services, this Great Person is abandoned to Envy, a suspition ill grounded distroys the value of so many Services, and a simple jealousy of State wipes them out of the memory of his Prince: but he rests not there, for the demeanor had been too gentle, if cruelty had not been added to ingratitude; they de­prive Vide Sir Wal­ter Raleigh l. 5. c. 6. §. 2. And in that whole Paragr. the in­gratitude that hath been shown by Prin­ces to many a Brave and No­ble General & Commander, there particu­larly enume­rated. him of all his Honours, they rob him of all his Fortune, they take from him the use of the Day and Light, they put out his Eyes, and reduce him to the company of Rogues, and the miserable Bellisarius de­mands a charity, even that Bellisarius the Chiefest General of his Age, and the Greatest Ornament of the Empire, who after so many Victories and Conquests, accompanied with so high and cleer a Virtue, and in the midst of Christendom, reduced to so abject and low a misery.

Nor was this cruel and hasty reckoning of Justinian let slip, without a cruel payment, for Narces, who was [Page 124] as well a Successor in merit as in Authority to Bellisa­rius, who having notice of a disdain, conceived likewise against him upon a single complaint resolved not to ex­pose himself as a Sacrifice to their malice; and there­fore better to shake off the yoak then stay to be op­pressed, soon spoiled the affairs of Justinian, for the Goths revolted, and Fortune would not forbear to be of the party, which Narces Follow'd, nor to find the Barba­rian, where so Brave a Captain was engaged. There­fore, not one or many faults are to be listened to against Commanders, but patiently heard and redressed, but not to disgrace or loose them; for such having com­mitted a fault, yet being admonished by love, may en­deavour by future Services to make recompence by some Noble Exploit; but disgraced, become Instruments often of danger and ruin to their Superiors.

IV. Souldiers and Mariners faults are either proper to themselves, or common with others.

Those are common with others, which other Men fall into, and are corrected with like ordinary procee­ding as other crimes of like nature, as Man-slaughter, Theft, Adultery, and such like.

Those are proper, which do properly appertain to the Naval Military part, and are punished by some unusuall or extraordinary punishment: As are these, not to appear at the over musters or calling over the Ship, to serve under him, he ought not to serve, to vage or wander long from a Ship-board, although he return of his own accord, to forsake his Fleet, Squa­dron, Ship, Captain, Commander, or Officer, to leave his standing to fly over to the Enemy, to betray the Fleet, Squadron or Ship, to be disobedient to superior Affairs, to loose or sell his Arms, or steal another Man's, De Castrensi pe­culio, & C. de­mit. l. 12. C. de errogatione [...]ilitaris an­ [...]onae, & C. de [...]est. Militari. to be negligent in his Officer's command or in his watch, to make a mutiny, to fly first out of the Battle, and the like, which are very frequently set forth in the Titles of the Digest and Code of Military affairs, and other like Titles, which accompany them.

Arrian, who wrote the Life of Alexander the Great, observes, Every thing is counted an offence in a Souldier, which is done contrary to the common Discipline, as to be negligent, to be stubborn, to be slothfull.

[Page 125] V. The punishment wherewith Souldiers and Mari­ners are corrected, are those corporall punishments, or a pecuniary mulct or injunction of some service to be done, or a motion or removing out of their Places, and sending away with shame.

By Capital punishment, is understood for the most part death, or at least beating with Cat with nine tayls, as they commonly term it, Ducking, Wooden-horse, Gauntlet, and such like, unless happily it be pardoned, either for the unskilfulness of the Mariner or Souldier, or the mu­tiny of the Crew or Company, being thereto drawn by Wine, Wantonness, or for the commiseration or pitty of the Wife and Children, of the party offending; all which is left to the discretion of the Lord Admiral and others the Supream Commanders, or Captains.

VI. It is necessary that in Armies and Fleets all man­ner of impiety should be prohibited, especially that of Swearing and Cursing; for such are sins so foolish, that they unawares help Men into damnation, rendering Men worse then beasts; by how much the more they court that vanity of sin without any of the appendant allurements; which other vitious actions are accompa­nied with; the same in the end teaching Men to disavow GOD in their Discourse and actions, by their intem­perate and inconsiderate invoking him in their Oaths: Against such, as also against those that shall give them­selves 13 Car. 2. cap. 9. Artic. 2. up to Cursing, Execrations, Drunkenness, Unclean­ness, or other scandalous actions in derogation of God's Honour, and corruption of good manners, fynes and Imprisonment or such other punishment may be inflicted on them, by a Court Marshall, By Orders of His Royall Highness. which is now reduced to the forfeiture of one day's pay; but for drunkenness, the same extends not to Commanders, or other Com­mission and Warrant-Officers; for they upon conviction before the Admiral shall be rendred uncapable of their Command.

And a Lyar convicted a Ship-board, shall be hoisted upon the main-stay with 4 Braces, having a Broom and Artic. 1. Shovel tyed to his back, where he shall continue an hour, every Man crying, A lyar, a lyar, and a week following he shall clean the Ship's head and sides without board, [Page 126] according to the antient practise of the Navy, if he re­ceives Artic. 3. greater Wages then for an able Sea-Men, then half a day's pay.

VI. By the Laws of Nations, Spies may be sent to survey Livy lib. 2. cap. §. ult. ad Leg. Corn. de [...]icariis pun. the Enemy's Force, Fleet, Station or Squadron, and make discovery of whatsoever may give advantage to the Persons sending: So Moses and Joshua did into the Holy Land; on the other hand being deprehended, they are to be put to death, as Apian saith; and by the Laws of England, if any Officer, Souldier or Mariner, in ac­tual Service, and in pay in his Majesties Fleet, or any other Person in the same, shall give, hold, or entertain any intelligence to or with any King, Prince or State, being enemy to, or any Person in Rebellion against his Stat. 13. Car. 2. cap. 9. Art. 3. Majesties his Heirs and Successors, without leave or au­thority from the King, Admiral, Vice-Admiral, or Offi­cers in chief of any Squadron, they are to suffer death: Now, the bare receipt of a Letter or Message from an Enemy, will not make a Man subject to the penalty of this Article; and therefore the subsequent Article ex­plains the precedent, in which it is provided, that if any inferiour Officer, Mariner, or Souldier shall receive any Letter or Message from any King, Forreign Prince, State, or Potentate, being an Enemy, or on their behalf, and if such Person does not reveal the same within 12 hours, having opportunity so to do, and acquaint the Superior Commander with it, such Person is to suffer death; so like­wise, if such Superior Officer, or Mariner being acquaint­ed therewith by an inferior Officer, Mariner or other, such Superiour Officero, Cmmander or Mariner, in his own Artic. 4. Person, receiving a Letter or Message from any such Enemy or Rebell, and shall not in convenient time re­veal the same to the Admiral, Vice-Admiral or Com­mander of the Squadron, shall suffer the like pain of death, or such punishment as a Court Marshal shall inflict: Now, Spies are put to death sometimes justly by those that manifestly have a just cause of Warring by others, by that licence which the Law of War granteth; nor ought any Person to be moved with this, that such be­ing taken, are punished with death; for that proceeds not from their having offended against the Law of Na­tions, [Page 127] but from this, that by the same Law every thing is Ad Leg. Corn. de siartis pun. lawfull against an Enemy: And every one as it is for his own profit, determineth either more rigourously or gently, but that Spies are both lawfull and practable, there is no question; for at this day by the generall instruc­tions of Fleets, there is alwaies out of each Squadron Tacit Hist. 5. some Frigots or Ships appointed, to make discovery of the Enemy, and upon sight to make saile, and to stand with them; in order to the taking cognizance of their Force, as well Ships of War as Fire-Ships, and in what posture they lay; which being done, those detecting Frigots are to speak together, and to conclude on the report they are to give, which done, they return to their respective Squadrons; such Ships in such service are not oblidged to fight, especially if the Enemies Force ex­ceed them in number, or that they shall have an appa­rent advantage.

VIII. Again, it is not lawfull for any, be he friend or neuter, to relieve an Enemy, much less for a Soul­dier Bartol. Leg. nullus. Leg. 2. de Judaeis Cae­licolis. or Mariner in pay, to supply him that conspires the destruction of my Countrey, is a liberality not to be allowed of, he is to be accounted an Enemy that supplies the Enemy with necessaries for the War; and therefore by Procopius Goth. 1. the Laws of War is so to be esteemed; and by the Laws of England, if any Person in the Fleet relieve an Enemy or Rebell in time of War, with Money, Victuals, Powder, Stat. 13: Car 2. cap. 9. art. 5. shot, Armes, Amunition or any other supplies whatso­ever, directly or indirectly, shall suffer death.

IX. Ships being assaulted and taken as prize, all the Papers, Charter-parties, Bills of lading, Pass-ports and other Writings whatsoever that shall be taken, seized or found aboard, are to be duely preserved, and not torn or made away; but the very Originalls are to be sent up entirely and without fraude to the Court of Admi­ralty, Artic. 6. or to the Commander appointed for that purpose, in order to the condemnation of the Prize, upon pain of the Captors loosing their share in the Prize, and also subject to such other punishment as a Court Marshall shall think fit.

X. The Right of taking of spoil was approved of GOD, within these naturall bounds which have been [Page 128] already mentioned, is further evinc't by the appoint­ment that GOD in his Law concerning the Acquisi­tion of Empire over the conquered, after refusal of peace, All the spoil thereof shalt thou take unto thy self, and thou shalt eat the spoil of thine enemies, which the LORD thy GOD hath given thee: Hence it is, that things taken from the Enemy, presently become theirs that take them by the Law of Nations, and such acquisition is called Natural, for not any cause, but the naked fact is consi­dered: And thence a Right springeth; for as the Do­minion of things began from Natural possession and some print of the same remains in the things taken in the Leg. Natura­lem §. ult. D. de Atq. rerum Dom. tit. de rerum div. Land, the Sea, and the Air; so likewise of things taken in War; but though this gives a Right to the Captors, yet that must be understood to the Soveraign or to the State that imploy'd them, and not to themselves; but if they have any share of the Prize, the same proceeds by the condiscention or grant of the Soveraign, which may be enlarged or abridged as occasion serves; and therefore by the Laws of England, Ships of War having a Prize, the goods and all manner of lading is to be preserved, till adjudication shall pass; but that is to be understood, where the Ship voluntarily yields: but Ships whom they shall assault, and take in fight or prize, the pillage of all manner of Goods and Merchandizes (other then Arms, Ammunition, Tackle, Furnitures or stores of such Ships) as shall be found by the Captors, upon or above the Gun-deck of the Ship, become theirs By the dona­tion of His Majesty.; but Artic. 7. this is to be understood where such Prize may lawfully be possest; for there are times when such are not to be meddled with, and therefore it is against the rules of War in fight, if some of the Enemies Ships are there dis­abled; yet those Ships that did so disable them, if they are in a condition to pursue the Enemy, cannot during the fight take, possess, or burn such disabled Ships, and the reason is, least by so doing some more important service be lost, but they are to wait for such booty, till the Flagg-Officers shall give command for the same. Artis. 8.

Vluzzali, King of Algier, in the famous Bataill of Lepanto, having behaved himself very valiantly there against the Christians, that he destroy'd severall of their [Page 129] Galleys, and others, he took amongst the rest the Galleys of Pietro Bua of Corsa, of the Prior of Messina, and Lu­dovico Tipico of Trahu, and Benedeto Soranza, the which he towed after him before the Battle was compleated; but that getting proved the loss both of the one and the other, for the Turks out of coveteousness of the plun­der, or otherwise thronging into them, accasioned their Hist. Repbl. Venet. fo. 127, 128. taking fire, in which the Victors in those flames became Victimes, and after follow'd the totall rout of the Otto­man power.

XI. It is almost impossible, that in Ships of War, which in these daies carry so considerable force in Men, but there will be some amongst them that have heads of knavery, and fingers of Lime-twigs, nor fearing to steal that from their Prince, which is applicable only for the good of their Countrey; such sort of Night-wolves when caught, are to be severely punished; and therefore to steal or take away any Cables, Anchors, Sails, or any Artic. 8. of the Ships Furniture, or any of the Powder or Arms, or Amunition of the Ship, subjects the offender to the pains of death, or to such other punishment as the quality of the offence shall be found by a Court Martial to deserve.

XII. By the ninth Article, Forreign Ships or Vessels Croesus per­swading Cyrus not to give up Lydia to be pillaged by his Men, tels him, Non mean [...], in­quit, non res meas diripes, nihil enim ad me jam ista ad­pertinent: tua sunt, tua illi perdent, Herod. lib. 1. taken as Prize, without fighting, none of the Captains, Masters or Mariners being Forreigners, shall be stripped of their cloaths, or in any sort beaten, pillaged, or evil entreated; and the Persons so offending being oblidged to render double damage: this Law most expresly doth not extend to those that obstinatly shall maintain a Fight; for most certain, by the Law of Arms, if the Ship be boarded and taken, there remains no restriction, but that of charity; and if a Ship shall persist in the engagement, even till the last, and then yield to mercy, there has been some doubt, Victor. de Jure Belli n. 49, & 60. whether quarter ought to be given to such; (for they may ignorantly D. & C. de Juris & facto ign. maintain with courage a bad cause:) but Captives and those that yield or desire to yield, there is no danger; Now, that such may be justly killed, there must be some antece­dent crime, and that such a one as an equall Judge, would think worthy of death; and so we see great se­verity shew'd to the Captives and those that have yield­ed; [Page 130] or, their yielding on condition of life not accepted Princes in­deed are Gods, but neither do the Gods hear the prayer of suppliants, ex­cept they be just. if after they were convinced of theinjustice of the War, they had nevertheless persisted with hatred or cruelty, if they had blotted their Enemies Name with unsufferable disgraces, if they had violated their Faith or any Right of Nations; as of Ambassadors, if they were fugitives: But the Law of Nature admits not talliation, The Syra­cusians were accused for that they slew the Wives and Children of Hycetas, be­cause Hycetas had slain the Sister and Son of Dyon. Plu­tarch, Timon, & Dione. except against the very individuall Person that hath offended; nor doth it suffice that the Enemies are by a fiction con­ceived to be as it were one Body; though otherwise by the Laws of Nations, and by the Laws of Arms, and at this day practised, in all Fights, the small Frigots, Ketches and Smacks, are to observe and take notice of the Enemies Fire-Ships, and to Watch their motion, and to do their best, to cut off their Boats, and generally the Persons found in them are to be put to death, if taken, and the Vessel if not taken, distroy'd; and the rea­son why the extreamity of War is used to such, is that by how much the mischief is the greater by the act of such Men if executed, by so much the punishment is aggrivated if taken, and quarter deny [...]d them by Law of War.

XIII. Every Captain or Commander upon signall In England when the Ad­mirall would have the Van of the Fleet to tack first, the Admirall did generally put aboard the Union-Flagg, at the staff on the fore-top Mast­head (that was when the Red Flagg was not abroad.) But if the Red Flagg had been abroad, then the fore-top-fall was to be loared a little, and the Union Flagg was to be spred from the Cap of the fore-top-Mast downwards. When the Reer of the Fleet was to tack first, the Union Flagg was put abroad on the Flagg staff of the Mizon-top-Mast-head, upon which two signals the Flagg Ships were to continue the same sig­nals on their Ships, till the same was answered: when the Admirall would have all the Ships to fall into the Order of Battle prescribed at the Councell of War, the Union Flagg was put on the Mizon Peake of the Admirall's Ship, upon sight of which the Admiralls of the other Squadrons were to answer it by doing the like signall, when the Admirall would have the other Squadrons to make more saile, though himself shorten saile, a white Ensign was put on the Ensign staff of the Ad­mirall's Ship: Instruction first of May 1666. but yet signals may be altered or changed as often as it shall please the Admirall to think the same necessary and convenient. or order of Battle, or view, or sight of any Ships of the Enemy, Pyrat, or Rebell, or likelyhood of engagement, they are to put all things in the Ship in fit posture for a Fight, as the breaking down the Cabins, clearing of the Ships of all things that may impede the Souldiers, in the preserving the Ship and themselves, and endama­ging the Enemy; and every such Commander or Captain [Page 131] are in their own Person, and according to their Place, to hearten and encourage the inferiour Officers and common Men to fight valiantly and couragiously, and not to be­have themselves faintly, under the disgrace of being casheered, and if he or they yield to the Enemy, Pyrat or Rebell, or cry for quarter, he or they so doing, shall suffer the pains of death, or such other punishment as the offence shall deserve. Now, though Souldiers or Mariners having oblidged themselves faithfully to serve in the Expedition or Navy; yet that is to be understood no further then his or their power to do his utmost in his or their Quality, for though the obligation for the Service be taken in the strickest tearms of undergoing death and danger, yet it is to be understood alwaies con­ditionally as most promises are, viz. if the action or pas­sion may be for that Fleet or Princes advantage; and therefore if the Fleet of Squadron is beaten, and the Ships are diasabled, and left scarce without any to de­fend them, now the Souldiers or Mariners remaining can do no more for their Prince then die, which indeed is to do nothing at all, but to cease for ever from doing any thing either for him or themselves, in those Streights; therefore it is not repugnant to their Oath called Sa­cramentum Lipsius de Mil. Rom. l. 1. dial. 6, & 4. And Polybius ex­presseth the Oath thus, Ob­temperaturus sum, & fact [...] ­rus quiquid maendabitur [...] ad Imperatori­bus, juxta vi­res: and such, saies he, were termed Mili­tes per Sacra­mentum. Militare, to ask quarter or strike, and having begg'd a new Life and taken it, they are bound in a new and just obligation of Fidelity to those to whom they were bound to kill few hours before; neither can the Prince or Generall expect by virtue of their former obli­gation to him, they should kill any in the place where the quarter was given: however, this Fidelity hath not its inception, from the time of taking quarter; but when the Battle is over, and that time which is termed cold blood; for without all controversy, if a Ship be boarded, and the Quarter is given, yet if while the Fight lasts, the Persons captives can by any possibility recover their liberty and Ships, they may by the Law of Arms justly acquire the same.

And since impunity is granted to such unfortunate desertors, yet it must be apparently evident and fully proved, that they were reduced into a condition beyond all hope in the Battle: and therefore the feet that for­sook [Page 132] the Unfortunate Pompey before the field was lost, were justly condemned for the breach of the Roman disci­pline and Law of Armes: and therefore the Article hath not positively declared death only, but added, or such other punishment as the offence shall deserve, which provision leaves the Action to be judged and punished by a Councel of War, who know best what's to be done in cases of that nature; however, a base or cowardly yielding; or crying quarter, is to be punished with death, and that without mercy.

XIV. The obeying of Orders hath in all Ages been in mighty esteem: Chrysantus, one of Cyrus's Souldiers, Xenoph. Cyr. Plutaroh Quaest. Rom. 39, & Marcello. being upon his Enemy, withdrew his sword, hearing a retreat sounded; but this comes not from the external Laws of Nations; for as it is lawfull to seize on the Ene­mie's Vide in Tit. Ships of War. Goods, so likewise to kill the Enemy, for by that Law the Enemies are of no account; but such obe­dience proceeds from the Military discipline of several Na­tions: by the Romans, it was a Law Leg. deser­torem. D [...] de re Milit. noted by Mo­destinus, that whosoever obey'd not his Orders, should be punisht with death, though the matter succedded well; now he also was supposed not to have obey'd, Livy lib. 7. Manliani Im­peria. who out of Order without the Command of the General entered into any Fight.

For if such liberty were lawfull either Stations would be deserted, or (licence proceeding) the Army, Fleet, or Squadron would be engag'd in unadvised Battles, which The Order of Battle is to be preserved, and in all cases they are to endeavour to keep in one line as much as may be; and though they have beaten some of the E­nemy, yet must they not pursue a small number, before the main of the Enemy be bearen or run. Nor ought they in chacing, chase beyond sight of the Flagg, and at night all chacing Ships are to return to the Flagg. Just. 22, 23 in 1. May 1666. by all means is to be avoyded. M. Capello, a Venetian Gentleman of an antient Extraction, having the Charge of the Guarding the Venetian Gulph, Hist. of the Reipub. of Ven fo. 170, 171. met with the Bar­bary Fleet, whom he so assaulted, that he burnt and took divers of them; among the rest the Admirall Galley of Algier, (a Vessel of vast higness) which he brought with him away, and she remains at this day a Trophy in the Arsenall of Venice; the service although Noble and Ho­nourable, and such as brought renown to the Reipublique, yet in regard it was an Action exceeding his Commission, [Page 133] he was adjudged to punishment: (but his great Merit and Alliance, preserved his Life) such an exact obedience that Seignory expects to be pay'd to her Orders, be the suc­cess never so Glorious: And by the eleventh Article, every Captain, Commander, and other Officer, Seaman or Soul­dier of any Ship, Frigot or Vessel of War, they are duely to observe the Commands of the Admirall or other his Superior, or Commander of any Squadron, as well for Artic. 11. the assaulting, and setting upon any Fleet, Squadron, or Ships of the Enemy, Pyrat or Rebells, or joyning Battle with them, or making defence against them, as all other the Commands of the Admirall, or other his Superior Commander, the disobeying of which subjects them to the pains of death, or such other punishment, as the quality or neglect of his offence shall deserve.

XV. Again, every Captain and all other Officers, Ma­riners and Souldiers of every Ship, Frigot, or Vessel of War, shall not in time of any Fight or Engagement, with­draw or keep back; but on the other hand, they are to come into the Battle, and engage, and do their ut­most Artic. 12. endeavour to take, fire, kill, and endamage the Ene­my, Pyrat or Rebell, and assist and relieve all other his Confederate Ships; and if they shall prove cowards, they are to be dealt with as cowards ought by the Law of Arms, which is to suffer death: But circumstance of things may make alteration of matters, therefore there is added or other punishment, as the circumstance of the offence shall deserve, or a Court Martiall think fit.

There are some offices to be done, even to them from whom you have received an injury; for revenge and pu­nishment Cicero Offic▪ 1, & 2. must have a measure; and therefore the issues of the Roman Wars were either milde or necessary; now when killing is just in a just War, according to internal justice may be known by the examining the causes or end of the War, which may be for the conservation of Life and Members, Grotius de Jure Belli ac Pacis lib. 1. cap. 2. §. 1,. and the keeping and acquiring of things usefull unto Life; now in the assaulting of Ships, it happens that one is slain on purpose or without pur­pose; on purpose no Man can be slain justly, unless ei­ther for just punishment, as without it we cannot pro­tect and defend our Life, our Goods, our Countrey, &c. [Page 134] That such punishment may be just, it is necessary, that he who is slain, have offended, and that so much as may be avenged with the punishment of death in the Sentence Misericordia infortuniis de­bitur: atqui deliberati sci­entia male a­git, non infe­lix, sed injustus: And Cicero hath a saying out of Demo­sthenes; We must shew compassion to those whom fortune, not their own deeds have made mise­rable. of an equall Judge, be expected: now we must note be­tween full injury and meer misfortune of [...]en intercedes some mean, which is as 'twere composed of both; so that it can neither be called the act of one knowing and willing, nor meerly the act of one ignorant or unwilling.

This distinction by Themistius, is fully illustrated; You have made a difference 'twixt an injury, a fault, and a misfortune; although you neither study Plato, nor read Ari­stotle, yet you put their Doctrine into practise; for you have not thought them worthy of equall punishment, who from the beginning perswaded the War, and who afterward were carryed with the stream, and who at last submitted to him, that now seem'd to have the highest power; the first you condemned, the next you chastised, the last you pitty'd: Mos [...] certain to spare Captives or Prisoners of War, is a com­mand Scipio Aemi­lianus at the overthrow of Carthage, pro­claimed that they should fly that would. Polybius, vide Tacitus Annal. 12. of goodness and equity; and in Histories they are often commended; who when too great a number prove burdensom or dangerous, chose rather to let them all go then to slay them, or detain them, though for Ran­soms; as the last Flemish Wars with England, so for the same causes, they that strike or yield up themselves are not to be slain, (though there is no provision made by Covenant.) In Towns besieg'd it was observed by Vide Serran. in reb Franc. 1. & Hen. 2 Thueyd. lib. 3. the Romans, before the Ram had smitten the Wall, Cae­sar Caesar l. 2 de Bello Gallico denounceth to the Advatici, he would save their City, if before the Ram had touched the Wall, they yielded; which is still in use in weak Places, before the great Guns are fired; in strong Places before an Assault is made upon the Walls; Dinand in Germany, being taken by as­sault, the town was raised and burnt and the prisoners all put to death. Vide Phil. Co­mines lib. 2. cap. 1. and at Sea, by firing 1 or 2 Guns, or hanging out the bloody Flagg, according as the instructions are, however, till there be an absolute yielding or quarter cry'd by the Law of Armes, as well as by the above mentioned Article, every Commander and Souldier is to do his utmost, to take, fire, kill and endamage the Enemy, or whatsoeuer may tend there­unto.

XVI. By the Law of Arms, he deserves punishment who doth not keep off force that is offered to his fellow [Page 135] Souldier; and though it hath been conceived, that if there be manifest danger, that he is not bound to come into his relief: for such Commanders may prefer the lives in his own Ship, before those in another; yet that suffices not for every Souldier by the Law of Arms, is not only bound to defend, but likewise to assist and re­lieve his Companion: now Companions are in two re­spects, either those that are in actual service with such Souldiers, or those that are not, but only committed to their protection or Convoy, which are to be defended and guarded at the same peril and charge that a fellow I will defend my Compani­on at the cost of my own Blood, and partake in his danger. Senec. de Ben. 2. 15. Souldier is; and therefore all Ships that are committed to Convoy and Guard, they are diligently and carefully to be attended upon without delay, according to their Instructions, in that behalf: And whosoever shall be faulty therein, and shall not faithfully perform the same, and defend the Ships and Goods in their Convoy with­out either diverting to other parts or occasions, or re­fusing or neglecting to fight in their defence, if they be set upon or assailed, or running away cowardly, and submitting those in their Convoy to hazard and peril, or shall demand or exact any Money or other reward From any Merchant or Master, for conveying of any such Ships or other Vessells belonging to His Majesty's Sub­jects, shall be condemned to make reparation of the da­mage to the Merchants, owners, or others, as the Court of Admiralty shall adjuge, and also be punished crimi­nally according to the quality of their offences, be it by pains of death or other punishment, according as shall be adjudged fit by that Court Martiall: Now, those Ships that are not under Convoy but ingaged in fight, are faithfully to be relieved; and therefore if a Squa­dron shall happen to be over-charged and distressed, the next Squadron or Ships are to make towards their re­lief and assistance upon a signal given them; which is generally given in the Admiralls Squadron by a Pendant on the fore-top-Mast head of any Flagg-Ship in the Vice-Admiralls Squadron, or he that commands in chief in the second place, a Pendant on the main top-Mast head, and the Reer-Admiralls Squadron the like: but these signalls sometimes change, according to the wisedom and [Page 136] resolution of the Admirall. Again, Ships that are dis­abled by loss of Masts, shot under Water, or the like; so as they be in danger of sinking or taking, the di­stressed Ships generally make a sign by waft of their Jack and Ensigns, and those next to them are bound to their relief; but yet this does not alwaies hold place, for if the distressed Ship is not in probability of sinking, or otherwise encompassed with the Enemy, the releiver is not to stay under pretence of securing them, but ought to follow his leader and the Battle, leaving such lame Ships to the Stern most of the Fleet; it being an un­doubted Maxime, That nothing but beating the Body of the Enemy can effectually secure such disabled Ships.

XVII. It is not enough that Men behave themselves valiantly in the beating of an Enemy, for that is not all, but the reducing of him into a condition to render right either for damage done, or to render that which is right; which cannot well be done without bringing Artic. 14. him to exigences and streights; and therefore if the Ene­my, Pyrat, or Rebell be beaten, none, neither through But that is to be under­stood as in the XII. §. of this Chapter. cowardize, negligence, or dissaffection, ought to forbear the pursuit, and those of them flying, nor ought such either through cowardize, negligence or disaffection, for­bear the assisting of a known friend in view, to their ut­most power, the breach of which, subjects the offenders to the pains of death, or at least such punishment as a Court Marshall shall think fit.

Empires are got by Arms, and propagated by victory; and by the Laws of War, they that have overcome, should govern those they have subdued: Hence it is that Gene­ralls having compleated a Conquest in a just War, and in chase or otherwise have taken the Ships or Goods of the Enemy, have absolute power over the Lives, Estates, Ships and things that they by force of Arms hath ac­quired, by the Laws of Nations.

But yet in such Conquests where the reeking sword knows no Law, that is they are done impune, without punishment, because co-active Judges do grant them their authority; Tacitus 3. Annal. Pom­peius gravior remediis quam d [...]licta erant. but yet such power may be exorbitant, from that rule of right called Virtue; and therefore by the Law of War Captives may be slain, yet what Law forbids [Page 137] not, modesty prohibits to be done. Hence it is that Ge­nerals do often restrain that power of killing; for though such Prisoners of War do fight for the maintenance of an unjust cause, and although the War is begun by a solemn manner; yet all acts that have their rise from thence, are unjust by internal injustice; so that they who knowing­ly do persist in fighting, Grotius de Jure Belli ac Pacis lib. 3. cap. 10. §. yet ought they not alwaies to be slain, according to that of Seneca; Cruel are they, saies he 2. de Clem▪ cap. 4., that have cause of punishment, but have no mea­sure: For he that in punishing goes further then is meet, is the second author of injury; and the principal rea­son why mercy is often shew'd, is, for that Souldiers of fortune offend not out of any hatred or cruelty, but out of duty.

XVIII. Again, Generals in the measure of killing, look no further commonly then the distruction of those who by force of Arms oppose them, and though Ships or Cities are taken by assault, the which by the Laws of War subjects every individual to the mercy of the Con­queror; yet Children, Women, Old Men, Priests, Schol­lars and Husband-Men are to be spaired; the first by the In Vita C [...] ­milli Liv. lib. 1, & 5. Law of Nature, according that of Camillus, We have Armes, saies he, not against that age which even in taking Cities is spaired, but again [...]t armed Men, and this is the Law of Arms amongst good Men; by which we are to note that by the words good Men, as is observed, Grotius de Jure Belli ac Pacis l. 3. c. 11. who observes that many pretences may be found out against Men of mature age, but against In­fants, calumny it self can find nothing to say, as being cleer­ly innocents. to mean the Law of Nature for strictly by the Law of Armes, the slayers of them are without punishment.

Now, that which hath place in Children alwaies that have not attained the use of Reason, for the most part prevails with Women; that is unless they have com­mitted something peculiarly to be avenged, or do usurp Manly Offices, as flinging of stones from the Walls Herod. in Vi­ta Maximin. fo. 417. pour­ing down burning pitch, and brim-stone, and the like be-tuminous stuff, firing of Guns and the like, for it is a Sex that hath nothing to do with the Sword, that are capable of that clemency.

The like for old Men, whom Papinius observes, are not Papin. nullie violabilis ar­mis turba se [...] nes. Vict. D. loca. to be slain; so for Ministers of Sacred things, even Bar­barous Nations, have had them in reverence and preser­vation; as the Philistins enemies of the Jews, did to the [Page 136] [...] [Page 137] [...] [Page 138] Colledge of Prophets, whom they did no harm, and with 1 Sam. 10. 5. 10. those Priests are justly equalled in this respect, they that have chosen a like kind of life as Monks and Penitents, 1 Sam. 19. 18. Lord Coke's Comm. on 30 Cap. of magna whom therefore as well as Priests, the Canons following in naturall equity, will have spared, Charta fo. 58. to these are de­servedly added those that give themselves to the Study of good Learning and Sciences useful to Mankind, be it C. de Treuga & Pace. in Universities, or other publique Schools or Colledges.

To these are added Tradesmen, Vide 2. Inst. fo. 58. & Trin. 31 E. 1. coram Rege Rot. 127. so likewise Merchants, Leg. execut. C. quae res pign. which is not only to be understood of them that stay for a time in the Enemies Quarters but of perpetual Subjects, for their life hath nothing to do with Arms, and under that name are also contained other Work-Men and Artificers, whose gain loves not War, but Peace.

Again, Captives and they that yield, are not to be slain, for to spare such is a Command of goodness and equity, sayeth Seneca; De Benef. 5. cap. 18. nor are Hostages to be destroy'd, according to that of Scipio; who said, He would not shew his displeasure on harmless Hosta­ges, Livy lib. 28. The same saith Julian in Ni­ [...]etas. but upon those that had revolted, and that he would not take revenge of the unarmed, but the armed Enemy: 'tis very true, by the Law of Arms, if the Con­tract be broke for which they became Hostage, they may be slain, that is, the slayer is without punishment: but yet some Grot. de Ju­re Belli ac Pa­ [...]is l. 3. c. 11. conceive the slayer is not without sin, for that no such Contract can take away any Man's life, that is, I suppose an Innocents life; but without contro­versie, if those that become Hostage be or were before in the number of grevious delinquents, or if afterwards he hath broken his Faith given by him in a great mat­ter, the punishment of such may be free from injury.

XIX. Where offences are of that nature as they may seem worthy of death, as mutiny, and the like, &c. it will be a point of mercy, because of the multitude of them to remit extream right, according to that of Se­neca 2. de Ira cap. 10. Quic­quid multis peccatur inul­ [...]um est. Magis monendo quam minando: sic e­nim agendum est cum multi­eline peccanti­um severitas au rem exercenda est in peccata pauc [...]rum. Gailium de pace pub. lib. 11. cap. 9. 36., The severity of a General shews it self against par­ticulars, but pardon is necessary where the whole Army is revolting, what takes away anger from a wise Man, the [Page 139] multitude of Transgressors? Hence it was that casting of Lots vide Grot. lib. 3. cap. 11. §. 17. was introduced that too many might not be sub­jected to punishment.

However, all Nations have generally made it a stand­ing Rule in the punishment of Mutineers as neer as pos­sible, to hunt out the authors, and them make exam­ples of Victor de Ju­re Belli [...]n. 59. lib. 2..

And therefore by the 15 Article, if any Man at any time when Service or Action is commanded shall pre­sume to stop or put backwards or discourage the said Service and Action, by pretencee of arrears of wages or upon any pretence of wages whatsoever, they are to suffer death; and indeed the same ought to be without mercy, by how much the more they may raise a mutiny at a time when there is nothing expected but Action, and the shewing the most obsequious duty that possibly may Artic. 15. be; the breach of which may occasion the dammage of the whole Fleet, and being of such dangerous consequence, ought severely to be punished: So likewise the uttering of any words of Sedition or Mutiny, or the endeavour­ing to make any mutinous Assemblies upon any pre­tence Artic. 19. whatsoever, is made death: And the very con­cealors of any trayterous and mutinous practises, designs or words, or any words spoken by any to the prejudice of His Majesty or Government, or any words, practises, or designs tending to the hinderance of the Service, and shall not reveal them, subject them to such pains and punishments as a Court Marshal shall think fit. And Artic. 20. whereas in no case of the offences committed against any of the Articles for the Government of any of His Ma­jesties Ships of War, within the Narrow Seas, wherein the pains of death are to be inflicted, execution of such Sentence ought not to be made without leave of the Lord Admiral; this of mutiny is totally excepted, for such may be executed immediately. Art. 34.

XX. It is not lawful for Princes or States to make of their Enemies Traytors, or to desert the Service of their Prince, or to bring over their Ships, Ordinance, Provisions or Arms; for as it is not lawful for any Sub­ject Grot. de Jure Belli ac Pacis lib. 3. cap. 1. §. to do the same, so likewise to tempt him; for he that gives a cause of sinning to another, sins also him­self; [Page 140] but if a Man will voluntarily without any other impulse, then his own, bring over the Ships or Ar­mies, or deserts the Service of his Prince, to serve ano­ther; this, though a fault in the desertor, is not in the reciever. We recieve a fugitive by the Law of War, (saith Celsus Leg. Trans­fug [...]m D. re ac­ [...]reúm dom. Polyb. in ex­cerp. Legat. 9. 28. 34. Me­nander Prote­ctor idem nos docet.) that is, it is not against the Law of War to ad­mit him who having deserted his Princes part, elected his Ene­nemies; nor are such to be rendred, except it shall be agreed, as in the Peace of Lewis the 11th. Phil. Co­mines lib. 4. chap. 12. However such sort of gamsters, if caught, are to be severely punished; and there­fore it is provided, that if any Sea Captain, Officer, or Sea-Man that shall betray his trust, or turn to the Enemy, Pyrat or Rebel, or run away with their Ship or Ordi­nance, Ammunition or Provision, to the weakning of the Service, or yield the same up to the Enemy, Pyrat or Rebel, shall be punished with death; so likewise if Artic. 16. any shall desert the Service or the Employment, which they are in a Ship-board, or shall run away or entice any other so to do, they are subject to the like pain of Artic. 17. Tertul. Apolog. 9. c. quando liceat. lib. 2. in res majesta­tis & publicos hostes omnis homo miles. Vi­de Grot. lib. 1. cap. 15. §. death. And by the Law of Nations, such desertors that run away from their Colours or Fleet before Peace pro­claimed and concluded, all Persons of that Prince from whom they fled, have a right indulged to them to execute publique revenge.

XXI. By the Law of Nations, Livy lib. 2. lib. 3. §. ult. ad Leg. Corn. de Sicariis pun. Artic. 18. Spyes may be sent to view and survey the Enemies Force, Fleet, station, and make discovery of whatsoever may give advantage to Vide Hetley Rep. 235. 1 H. 7. cap. 1. 3 H. 8. cap. 5. the Persons sending, as is mentioned above; but being deprehended, they are to be put to death: and there­fore if any Person shall come from or be found in the nature of Spies, to bring any seducing Letters or Messa­ges from any Enemy or Rebel, or shall attempt or en­deavour to corrupt any Captain, Officer, Mariner, or other of the Navy or Fleet, to betray his or their trust, or yield up any Ship or Ammunition, or turn to the Ene­my or Rebel, shall be punished with death.

XXII. Souldiers and Mariners ow all respect and duty to their Superior Officers; and therefore when they are in anger, they ought to avoyd them; but above all not to quarrel with, or give them any provoking lan­guage: and therefore by the Law of Arms, a Souldier [Page 141] who hath resisted his Captain, willing to chastise him, if he hath laid hold on his rod, is casheer'd, if he pur­posely break it, or laid violent hands upon his Captain, he dyes: Leg. milites. D. de re milit: Rufus Legi militeribus cap. 15. And by the Laws of England if any Per­son shall presume to quarrel with his Superior Officer, he shall suffer severe punishment; and if he strikes him, shall suffer death, or otherwise as a Court Marshal shall adjudge the matter to deserve Artic. 21..

XXIII. And though Mariners and Souldiers may have just cause of complaint, as that their victuals or pro­visions are not good, yet must they not mutiny or re­bel, whereby to distract or confound the whole Crew; but must make a civil and humble address to their Com­mander, that the same may be amended; and if the case be such, that the Commander cannot redress the same, by going to Port to supply the exigencies, without de­triment of the Fleet (as if ready to engage, or the like) they must like Men and Souldiers bear with the extrea­mity, considering that it is better that some Men should perish, nay, the whole Crew in one Ship, then the whole Fleet; nay, perhaps the whole Kingdom be destroyed: Bacon m [...] fo. 17. Privi­legium non va­let contra rem publicam. And therefore if any in the Fleet find cause of com­plaint of the unwholsomness of his victuals, or upon other just ground, he shall quietly make the same known to his Superior, or Captain, or Commander in chief, as the occasion may deserve, that such present remedy may be had, as the matter may require; and the said Superior or Commander is to cause the same to be presently re­medied accordingly; but no Person upon any such or other pretence shall privately attempt to stir up any di­sturbance, upon pain of such severe punishment, as a Court Martial shall think fit to inflict.

XXIV. And as the Law doth provide that there be no waste or spoil of the Kings provision, or imbezlement Artic. 24. of the same; so likewise that care be taken, the Ships of War neither through negligence or wilfulness be strand­ed, split or hazarded, upon severe penalties. In fights Artic. 25. and when great Fleets are out, there are generally in­structions appointed for all Masters, Pilots, Ketches, Hoyes, and Smacks, who are to attend the Fleet, and to give them notice of the Roads, Coasts, Sands, Rocks, and [Page 142] the like, and they have particular stations allotted them, and orders given, that if they shall find less water then such a proportion, they then give a signall as they are directed to give, and continue their signalls till they are answer'd from the Capitall Ships.

But in time of Fight, they generally lay away their head from the Fleet, and keep their lead, and if they meet with such a proportion of water as is within their directions, they are to give such signal as they recieve Orders for, and stand off from the danger; but the wilful burning of any Ship or Magazine-store of pow­der, Artic. 27. Ship-boat, Ketch, Hoy or Vessel, or Tackle, or fur­niture thereunto belonging, not appertaining to an Ene­my or Rebel, shall be punished with death.

XXV. There are other faults often committed by the Crew, the which the Law does punish, as a quarrelling a Ship-board, using provoking speeches tending to make quarrel or disturbance Artic. 23., murthers, wilful killing of any Man Art. 28., Robbery, Theft Art. 29., and the unnatural sin of So­domy and Buggery, committed with Man or Beast, all which, and all other faults and misdemeanors are punished with death, or according to the Laws and Customs in such cases used at Sea Art 33.; and when any Persons have com­mitted any of the offences particularly mentioned in the Stat. of 13 Car. 2. Cap. 9. and contained in the Articles or any others, and for the which they shall be committed, the Provost Marshal is to take them into custody, and not suffer them to escape Art. 31., and all Officers and Sea-Men are to be aiding and assisting to Officers for the detecting and apprehending of offenders.

Touching the punishments that the Roman Generals used to their Souldiers, when they were at a Court Mar­shal found faulty, they were commonly proportioned ac­cording to the offence committed: Sometimes they were easy, of which sort were those which only brand the Souldier with disgrace; others were those that came heavy on the Person or Body; to the first belonged a shameful discharging or casheering Ignominiosa dimissio. a Mariner or Souldier from the Army, and generally lookt on as a matter of great disgrace, which punishment remains at this day for of­fences as well in England, as in most parts: A second [Page 143] was by stopping of their Fraudat [...] stipendii. Rosin. Ant. Rom. lib. 10. c. 25. Pay, such Souldiers which suffered this kind of mulct, were said to be Aere diruti, for that Aes illud diruebatur in fiscum, non in Militis sac­culum; the which is and may at this day be inflicted, especially on such as shall wilfully spoil their Arms, and the like sort of offences: A third was a Sentence en­joyn'd on a Souldier to resign Censeo Ha­staria. up his Spear, for as those which had atchieved any Noble Act, were for their greater Honour, Hasta pura donati, so others for their greater disgrace were inforc'd to resign up that Military Weapon of Honour: A fourth sort of punishment was, that the whole Cohort, which had lost their Banners or Standards, either in the Fields or at Sea, were inforc'd to eat no­thing but Barley bread, being deprived of their allow­ance in Wheat, and every Centurion in that Cohort had his Souldiers belt or girdle taken from him, which was no less disgrace among them then the degrading (among us) one of the Order of the Garter: for petty faults they generally made them stand bare-footed before the Gene­rall's Godwin Antiq. Rom. fo. 127, Pavilion, with long poles of 10 foot in length in their hands, and sometimes in the sight of the other Souldiers to walk up and down with turfes on their necks, some­times carrying a beam like a fork upon their shoulders round the Town; the last of their punishments, was, the opening of a Vein or letting them blood in one of their arms, which generally was inflicted on them who were too hot and bold.

The great Judgments were to be beaten with rods, which was generally inflicted on those who had not dis­charged their Office, in the sending about that Table cal­led Tessera, wherein the Watch-word was written, or those who had itoln any thing from the Camp, or that had forsaken to keep Watch, or those that had born any false witness against their Fellows, or had abused their Bodies by Women, or those that had been punished thrice Lips. de milit. Rom. lib. 5. Dial. 18. for the same fault, sometimes they were sold for bond-Slaves, beheaded and hang'd: But the last which was in their mutinies, the punishment fell either to Lots, as the tenth, twentieth, and sometimes the hundredth Man, who were punished with Cudgelling, and with these punishments those in England have a very near affinity, [Page 142] [...] [Page 143] [...] [Page 144] as cleansing the Ship, loosing pay, ducking in the Water, beaten at the Capsons head, hoisted up the main yard end with a shovel at their back, hang'd, and shot to death, and the like.

XXVI. The Admiral may grant Commissions to in­ferior Vice-Admirals or Commanders in chief of any Squa­dron of Ships, to assemble Court Martials, consisting of Commanders and Captains, for the Tryal and Execution of any of the offences or misdemeanours which shall be committed at Sea; but if one be attainted before them, the same works no corruption of Blood or forfeiture of [...]7 H. 6. fo. 4, [...]. Lands, nor can they try any Person that is not in actual Service and pay in His Majesty's Fleet and Ships of War.

But in no case where there is Sentence of death, can the execution of the same be without leave of the Lord [...] 13 Car. 2. cap. 9. Admirall, if the same be committed within the narrow Seas; yet this does not extend to mutiny, for there in that case the party may be executed presently.

All offences committed in any voyage beyond the nar­row Seas where Sentence of death shall be given upon any of the aforesaid offences, execution cannot be awar­ded nor done, but by the Order of the Commader in chief of that Fleet or Squadron, wherein Sentence of death was passed.

XXVII. The Judge Advocate hath power given by the words of the Statut, to administer an Oath in or­der to the Examination or Tryal of any of the offences mentioned in the Stat. of 13 Car. 2. Cap. 9. and in his ab­sence, the Court Marshall has power to appoint any other Person to administer an Oath to the same purpose.

This Statut enlarges not the power and and jurisdi­ction of the Admiral any further, then only to the above mentioned offences in no case whatsoever, but leaves his authority as it was before the making of this Statut.

Nor does it give the Admiral any other or further power to enquire and punish any of the above-mention­ed offences, unless the same be done upon the main Sea, or in Ships or Vessels, being and hovering in the main stream of great Rivers, only beneath the Bridges of the same Rivers nigh to the Seas, within the * 15 R. [...]. cap. 3. jurisdiction of the Admiralty, and in no other place whatsoever.

[Page 145] XXVIII. As Souldiers and Mariners for the honour and safety of the Realm, do expose dayly their lives and limbs, so the Realm hath likewise provided for them, in case they survive and should prove disabled or unfit for Service, a reasonable and comfortable maintainance to Stat. 43 Eliz. cap. 3. keep them; the which the Justices of the Peace have power yearly in their Easter Sessions to raise by way of a Taxe, for a weekly relief of maimed Souldiers and Mariners.

The maimed Souldier or Mariner must repair to the Treasurer of the County where he was prest, if he be able to travel; if he was not, then to the Treasurer of the County where he was born, or where he last dwelt by the space of three Years; but if he proves unable to travel then to the Treasurer of the County where he lands.

He must have a Certificate under the chief Comman­der, or of his Captain, containing the particulars of his hurt and Services.

The allowances to one not having been an Officer, is not to exceed ten pound per annum;

  • Under a Lievtenant—15,
  • A Lievtenant——20.

Till the Mariner arrives at his proper Treasurer, they are to be relieved from Treasurer to Treasurer, and when they are provided for, if any of them shall go a begging or couterfeit Certificats, they shall suffer as common rogues, and loose their Pensions: Over and above this provision, His Sacred Majesty hath provided a further supplyment for his maimed Mariners and Souldiers dis­abled in the Service [...], which is issued out of the Chest at Chatham, and constantly and duely pay'd them; and for his Commanders, Officers and others that served a­board, he, of his Royal Bounty, hath given to those that bear the character of War, and purchase the same by their fidelity and valour, a pious Bounty called Smart-Money, over and above their Pay.

XXIX. The wisedom of the Romans was mightily to be commended, in giving of Triumphs to their Gene­rals Vide Salmuth in [...] Leg. rerum depred. C [...]de Triumph. Dion. [...] lib. [...]. after their returns, of which they had various sorts; but the greatest was when the General rid in his Cha­riot, adorned and crowned with the Victorious Laurel, the Senators with the best of the Romans meeting him, [Page 146] his Souldiers, (especially those who by their valoor had purchast Coronets, Chains and other Ensigns of reward for their conduct and courage) following him: but what alas! could these to the more sober represent, any other but horror since, the centers from whence the lines were drawn, could afford nothing but death, slaughter and desolation on those who had the Souls and Faces of Men; and if it were possible that that Blood which by their Commissions was drawn from the sides of Mankind, and for which they made those Triumphs could have been brought to Rome, the same was capable of making of a Source great as their Tiber; but Policy had need of all its Stratagems to confound the Judgement of a Soul­dier by excessive Praises, Recompenses and Triumphs, that so the opinion of wounds and wooden-legs might raise in him a greater esteem of himself, then if he had an entire body. To allure others something also must be found out handsomly, to cover wounds and affrightments of death; and without this Caesar in his Triumph, with all his Garlands and Musick, would look but like a victime: but what sorrow of heart is it to see passionate Man, a ray of Divinity, and the joy of Angels, scourged thus with his own Scorpions? and so fondly to give himself alarums in the midst of his innocent contentments, as they of Holland but yesterday in the midst of their traf­fique and recreations did (by the denying His Sacred Majesty his Right, even that right the which his An­cestors had with so much glory acquired,) pul on their heads a War, which that mighty Re [...]publique by their greatest industry and wisedom hath not been yet able to quell (the colerickness of War (whereby the lustfull heat of so many hearts is redoubled) stirs up the lees of Kingdoms and States, as a tempest doth weeds and slimy seedment from the bottom to the top of the Sea, which afterwards driven to the shoare, together with its foam, there coverts Pearls and pretious Stones: and though the Canon seems mad by its continual firing, and the Sword reeking hot by its dayly slaughters, yet no good Man doubts but they even they will wheather out those storms, & in the midst of those mercyless instruments, find an incul­patatutela, who love justice, exercise charity, and put their trust in the Great Governour of all things.

CHAP. XV. Of Salutations by Ships of War, and Merchant Men.

  • I. Of salutation, how esteem'd by some in this later age.
  • II. Of the same pay'd in all ages as an undoubted marke of Sove­raignty of this Empire.
  • III. Of those Seas where this right is to be pay'd to the King of England's Flag.
  • IV. In what manner the King of England holds this Right, and by whom to be pay'd.
  • V. Of those that shall neglect or re­fuse to do the same, how punisht and dealt withall.
  • VI. Where his Majesty of Great Britain's Ships are to strike their Flagg, and where not.
  • VII. Of the saluting of Ports, Castles, Forts, how the same is to be done, and on what terms.
  • VIII. Of Ships of War their salut­ing their Admiral and Comman­ders and Chief.
  • IX. Of Ambassadors, Dukes, No­blemen, and other Persons of quality, how to be saluted com­ing aboard and landing.
  • X. The Admirals of any forraign Nation, if met withall, how to be saluted and answered.
  • XI. Of the Men of War or Ships of Trade of any foraign Nation, saluting his Majestie's Ship of war, how to be answered.
  • XII. Of the saluting of his Ma­jestie's own Forts and Castles, and when the salute cease.
  • XIII. Of the objection that seems to be made against the necessity of such Salutations.
  • XIV. Why Kingdoms and States attributes the effects not the cause of Rights to prescription.
  • XVI. That Kingdoms and Reipu­bliques ought not to be disorder­ed for the defect of Right, in presumption, and the objection in the 13 §. answer'd.
  • XVII. The inconveniency of war, and the justifique causes of the same.
  • XVIII. Of the causes not justi­fiable in war.
  • XIX. Of Moderation, and the utility of Faith and Peace.

I. AS reforming Powers in all Ages, made it their chiefest work to take down the great Colossues, and whatever else might be ombragious in the excre­scences of Civile Pompe; so we had some in this Age, who, by a new art of levelling, thought nothing could be rightly mended, and they planted unless the whole piece ravelled out to the very end, and that all inter­mediate greatness between Kings and them, should be crumbled even to the dust, where all lying level toge­ther [Page 148] as in the first Chaos, spades ought even to be put into the hands of those who were heretofore adorned with Scepters, all outward tokens of honour and esteem, which even from the first institution of Society seemed by an uninterrupted stream to be continued down to po­sterity, (even amongst the most barbarous Nations) was by them totally deny'd; the Hand, the Hat, the Knee (being no other but outward signs of an inward respect) being esteemed equal with Idolatry; but that unhappy brood, to whom whatsoever was crooked seemed streight, and what was dark to them appears light, are now not to be accounted Men, with whom the question may admit of a debate whether Salutation is innocent, ne­cessary and praise-worthy, since nothing of reason can be found in the foundation of their Religion, Honesty or Conscience.—Therefore this Discourse is directed to Men:

II. First, it is evident by what hath been said, that the British Seas before the Roman Conquest, ever belong­ed to the Isle of Great Britain, they alwaies claiming and enjoying the sole Dominion and Soveraignty of the same, which afterwards accrued to the Romans by Conquest, and from them translated with its Empire to the succeeding Saxon, Danish and Norman Successors, and in all the Reigns of those Princes there was alwaies some markes of Soveraignty pay'd, wherein the right of the same was evinc't and acknowledged.

III. Now those Seas which this Salutation or Duty of the Flagg are to be pay'd, are the four circumjacent Seas, in which all Vessels whatsoever are to pay that Duty, according to the Custom of the same, and the Ordinance of King John: How far this Right is pay­able, appears in the fourth Article in the Peace made lately between His Majesty and the States General of the United Provinces, in these words:

That whatever Ships or Uessels belonging to the said United Provinces, whether Uessels of War or other, or whether single or in Fl [...]ts, shall m [...]t in any of the Seas from Cape Finisterre to the middle point of the Land Van Staten in Norway, with any Ships or [Page 149] Uessels belonging to his Majesty of Great Britain, whe­ther those Ships be single or in great number, if they carry his Majesty of Great Britain's Flagg or Jack, the aforesaid Dutch Uessels or Ships shall strike their Flagg and lower their Top-sail, in the same manner, and with as much respect as hath at any time, or in any place, been formerly practised towards any Ships of his Majesty of Great Britain, or his Predecessors by any Ships of the States General, or their Predecessors.

IV. Now, his Majesty holds not this Salutation or Respect, by virtue of the League or of the Article, but as the same is a Right inherent to the Empire of Great Britain; and therefore in the first part of the Article it is declared in these words:

That the aforesaid States General of the Uni­thed Provinees, in due acknowledoment on their part of the King of Great Britain's RIGHT, to have his Flagg respected in the Seas hereafter mentioned, shall and do declare, and agree

Now this Right extends and subjects all Nations whatsoever that shall pass through those Seas, and be­tween those places meeting with any of his Majesty's Ships of War, bearing his Flagg, Jack, or Cognizance of Service, to strike their Top-sail, and take in their Flagg, in acknowledgement of His Majesty's Soveraignty in those Seas, and if any shall refuse to do it, oroffer to resist, they may be compelled vis manu & forti, for his Majesty's Honour is by no means to receive the least di­minition.

V. If therefore any of his Majesty's Subjects should be so negligent or forgetful to pay that obeissance, when it may be done without losse of the Voyage, they are to be seized on, and brought to the Flagg, to answer the contempt, or else the Commander may remit the Name of the Ship, Commander or Master, as also the place from whence, and the Port to which she shall be bound to the Admiral; however before she is dismist, she must pay the charge of the shot, that her negligence or forgetfulness occasioned, and afterwards may be in­dicted for the same, and severely punished.

VI. In His Majesty's Seas, none of his Ships of War [Page 150] are to strike to any, and that in no other part no Ship of His Majesty is to strike her Flagg or Top-sail to any Forraigner, unless such forraign Ship shall have first struck, or at the same time have strike her Flagg or Top-sail to his Majesty's Ships.

VII. But if any of the King of Englands Ships of War shall enter into the Harbour of any Forraign Prince or Sate, or into the r [...]ade within shot of Canon of some Fort or Castle, yet such respect must be pay'd, as is usu­ally there expected, and then the Commander is to send a shore, to inform himself what return they will make to this Salute; and that if he hath received good assu­rance, that his Majesty's Ships shall be answer'd Gun for Gun, the Port is to be saluted, as is usuall, but without assurance of being answered by an equal num­ber of Guns, the Port is not to be saluted: And yet in that very respect before the Port is to be saluted, the Captain ought to inform himself, how Flaggs (of the same quality with that he carrys) of other Princes have been saluted there, the which is peremptorily to be in­sisted on, to be saluted with as great respect and ad­vantage as any Flagg (of the same quality with the Ca­ptains) of any other Prince hath been saluted in that Place.

VIII. A Captain of a Ship of the second rate, being neither Admirall, Vice-Admiral, nor Reer-Admiral, at his first coming and saluting his Admiral or Comman­der in chief, is to give 11 Pieces, his Vice-Admiral nine, and his Reer-Admiral seven, and the other proportio­nably less by two, according to their Rancks; but the Commander or Captain of a Ship is not to salute his Admiral or Commander in chief, after he hath done it once, except he hath been absent from the Flagg two Artic. 38. Months.

XI. When a Ship of the second rate, shall carry any Ambassador, Duke, or Nobleman, at his coming aboard, he is to give eleven Pieces, and at his landing fifteen; and when he shall carry a Knight, Lady or Gentleman of Quality, at their coming aboard he is to give seven, and at the landing eleven; and the other Ships are to give [Page 151] less by two, according to their Rancks and number of Ordinance.

X. When an Admiral of any forraign Nation is met with, he is to be answered with the like number by all the Ships he shall salute, if a Vice-Admiral, the Ad­miral is to answer him with twelve less; but the Vice-Admiral and Reer-Admiral, and as many of the rest as he shall salute, shall give him the like number: if a Reer-Admiral, then the Admiral and Vice-Admiral, to answer him with two less; but if he shall salute the Reer-Admiral or any other, they are to answer him in the like number.

XI. When a Man of War or Merchant-Man of an­other Nation, or of our own, salute any of the King's Ships, he is to be answer'd by two less.

XII. When any of the Captains of his Majesty's Ships shall have occasion to salute any of the King's Castles, he is to give two Guns less then they are directed to give upon saluting their Admiral or Commander in chief, as aforesaid: But this extends only in time of Peace, for if War is begun, no Guns ought to be fired in Salutes, unless to the Ships or Castles of some forraign Prince or State in Amity.

XIII. Those duties or obligations being laid on Com­manders, they consist of two parts, the one is that an­tient prescription, which the Crown of England claims by virtue of the Soveraignty of that Empire, the other is but that respect, which is pay'd as visible marks of Honour and Esteem, either to Kingdoms or Persons pu­blique or private, to whom these several Commands are to be observed; and yet in these which are both inno­cent and harmless of themselves, yet we wont not those who being empty, of all that may be called good, want not malice to start up words, wherefore should the lives of Men, even Christian Men, be exposed to death and slaugh­ter for shaddows (as they call them) the right of salutation or Complement, being no other in their opinion.

XIV. Admitting therefore that the evidence of ori­ginal Compacts and Rights stand at such remote distances from us, that they are hardly discernable, and that the principal of Civil things, as well as Natural, is sought for [Page 152] in a Chaos or confusion; so that the evidence of antient facts vestigia nulla retrorsum, there being no infallible markes of their preexistence (one step doth so confound and obliterate another) and that time it self is but an imagination of our own and intentional not a reall measure for actions, which pass away concomitantly with that measure of time, in which they were done, for which reason we talk of antient things, but as blind Men do of Colours: Notwithstanding prescription is sup­posed by most to hold out such an evidence, that as they say, Coke Comm. on Littleton, fo. 25. it ought to silence all Counterpleas in all Tribu­nals, and by the present allowance which is indulged to it, it either proves a good or cleans a vitiated title; and this Prerogative in the Civil constitution of the World hath this Power in the Civil constitution of the World, and for quietness sake, that what it cannot find, we grant it a power to make.

XV. Yet if we examine all this strictly at the two great Tribunals, the external and the internal, and ar­argue the jue of it, as Statesmen and Lawyers do, we can then raise the argument of it no higher in the ex­ternal or temporal Court, then only this,—That it is very convenient it should have the effects of Right, left properties and dominion of things should be uncertain, and the apparent negligences of time: Owners should be punished, and controversies have a speedy end: States looking more after publique repose and quiet, then after strict virtue; and more after those things which are ad alterum, then that which concerns a Mans own self; for, say they, The Gods look well enough after their own injuries, States Deorum inju­riae Diis Curae. meddle not so much with great prodigalities, as in petty Larcenies, our chiefest Liberty, Priviledges or Preroga­tive in this World, consisting only in an uncountroulable Right, which we have to undo our selves, if we please. Certainly if we plead at the other Tribunal, as conscien­tious Lawyers, we must give our ultimate resolution, out of that Law, Quae inciditur non aere, sed animis: which is not ingraved in Tables of brass, but in the Tables of our Souls; for the Rules of Law tell us, Quae principio vitiantur ex post facto, reconvalescant, and that prescri­ption or usu-caption (which is but the lapse of so much [Page 153] time) hath the power to make Wrong a Right; yea, to change the morality of an action, and turn quantity into quality: upon the result of all which taking for grant­ed, what those stubborn people do hold, that instead of being a right, or a certain cause or proof of it, it only makes a shaddow or an opinion of right.

XVI. And when wehave taken those people by the hand, and with eagerness run with them to the very bottom and end of the line, and there find nothing, we are but in Pompey's astonishment, when after his Con­quest of Jerusalem, when he had with such reverence and curiosity visited the Sanctum Sanctorum, and found no­thing there but a paire of Candle-sticks and a Chair, in which there was no God sitting; yet for all this mistake, he would not (as Josephus saith) disorder or rob the Temple, which he took by force of Armes, because the the very opinion of Religion, hath something of Religion. (which made Jacob accept of Laban's Oath by an Idol) so ought not we for defect of giving the causes of the inception of Prescription, or of the Right in Prescription, disorder a State, or be the occasion of setting of two Nations at enmity; nay, though in conscience we are sa­tisfy'd that it contains but the opinion or shaddow of Right: and as to the involving the lives of the inno­cent, there is no such thing in the matter, for there is not required any thing which they do not owe, nor are they designed to death; but if the cause be such, that they that are innocent must perish, that is, be ex­posed to death by their Rulers, because they obstinatly will not yield that which is right, but will involve the lives of their innocent Subjects by force, to defend that which is wrong, such guilty Governors must an­swer for the defect of their own evil actions: on the other hand, there can be no doubt made, but he that hath an undoubted right, being a Soveraign, the Sub­jects partake in the same, and the indignity offered to him, they immediatly become partakers in the suffer­ing, for the satisfaction of which they may, yea, are oblidged both by the Law of God and Nations to seek reparation (if their Prince shall command) vis manu & sorti, by the hazard of their Blood and Lives.

[Page 154] XVII. On the other hand, as War introduces the greatest of evills, viz. the taking away of Mens lives, and that which is equivalent to life; so right Reason and Equity tells us that, it ought not to be undertaken without the greatest cause, which is the keeping of our lives, and that without which our Lives cannot be kept; or if they should be kept, yet they would not be of any value to us, seeing there may be a life worse then death, even Captivity; wherefore as we are for­bidden to go to Law for a little occasion, so we are not to go to War, but for the greatest: Now those things that are equivalent to a Mans life, are such whom Almighty God appointed the same equall punishment as well as to those of murderers, and such as were breakers into Houses, breakers of Marriage Fidelity, Publishers of false Religion, and those who rage in unnaturall lusts, and the like.

However, before Mens Persons or Goods are to be invaded by War, one of these three conditions is re­quisite.

1. Necessity, according to the tacite contract in the first dividing of Goods, as hath been already observed.

2. A Debt.

3. A Mans ill merits, as when he doth great wrong or takes part with those who do it.

Against which If any thing is committed, War may be commenc't, nor is the same repugnant to the Laws of Nature; that is whether the thing may be done not unjustly, which hath a necessary repugnance to the ra­tional and social Nature; among the first principals of Nature, there is nothing repugnant unto War; on the other hand there is much in favour of it, for both the end of War, the conservation of Life and Members, and the keeping and acquiring of things usefull unto Life is most agreable to those principalls: And if need be to use force to that purpose is not disagreable, since every Li­ving Ulpian. Leg. 1. Sect. vim. vi. D. de vi, & vi arma. thing hath by the gift of Nature strength to the end it may be able to help and defend it self; besides reason and the Nature of Society inhibits not all force, but that which is repugnant to Society, that is, which depriveth another of his right; for the end of Society [Page 155] is, that every one may enjoy his own, this ought to be and would have been; though the Dominion and pro­perty of possessions had not been introduced for life members and liberty, would yet be proper to every one; & therefore without injury could not be invaded by an­other, to make use of what is common, and spend as much as may suffice nature, would be the right of the occupant, which right, none could without injury take away. And this is proved by that Battle of Abraham with the four Kings, who took Arms without any Com­mission from GOD, and yet was approved by him; therefore the Law of Nature was his warrant, whose Wisedom was no less emineut then his Sanctity, even by the report of Heathens, Berosus and Orpheus; nor is the same repugnant to the Hebrew Law or Gospell, as the same is most excellently proved by the Incomparable Grotius. De Jure Belli ac Pacis lib. 1. cap. 1.

XVIII. On the other hand, the fear of uncertain danger, as building of Forts, Castles and Ships, and the like, though the former be on Frontiers, the refusing of Wives (when others may be had) the changing of Coun­treys either barren or Morish, for more fertile or health­full, which may justly be done: as the case of the Old Germans, as Tacitus relates; so likewise to pretend a Tittle to a Land because it was never found out or heard of before, that is if the same be held by a People that are under a Government; nay, though the Go­vernment be wicked or think amiss of GOD, or be of a dull wit; for invention is of those things that be­long to none, for neither is Moral Virtue or Religious, or Perfection of Understanding required to Dominion; Victor de Ind. nel. 1. n. 31. [...] but yet if a new Place or Land shall be discovered, in which are a People altogether destitute of the use of Reason, such have no Dominion, but out of Charity only is due unto them what is necessary for life; for such are accounted as Infants or Mad-Men, whose right or pro­perty is transferred, that is the use of the same, accord­ing to the Laws of Nations, in such case a charitable War may be commenc't. Victor de Jure Belli n. 5, 6, 7, 8.

XVIII. To prevent all the sad calamities that must inevitably follow the ungoverned hand in War, Faith must by all means be laboured for; for by that, [Page 156] not only every Common-wealth is conserved, but also that greater Society even of Nations, that once being taken away, then farewell Commerce, for that must be then taken away from Man; for Faith is the most Sacred thing that is seated in the breast of Man, and is so much more religiously to be kept by the Supream Rulers of the World; by how much more they are ex­empted from the punishment of their sins here then other Men, take away Faith, and then Man to Man, would be as Mr. Hobbs observes, even wolves; and the more are Kings to embrace it, first for Conscience, and then for Faith and Credit sake, upon which depends the au­thority of their Government. The Ambassadors of Ju­stinian, Procopius Per­sic. 2. addressed their Seepch to Chosroes after this man­ner, Did we not see yout here with our own eyes, and pro­nounce these words in your ears, we should never have be­lieved that Chosroes the Son of Cabades, would bring his Army, and enter forceably into the Roman bounds, con­trary to his League, the only hope left to those that are af­flicted with War; for what is this, but to change the Life of Men into the life of wild Beasts? take away Leagues, and there will be eternall wars, and wars without end will have this effect to put Men besides themselves, and divest them of their Nature. If then a safe Peace may be had, it is well worth the releasing of all or many of the injuries, losses and charges; according to that in Ari­totle, Better it is to yield some of our goods to those that are more potent, then contend with them, and loose all: for the common chances of war must be considered, which if so, the scope of the principall part of this First Book may be avoided, and we let into that of Traffique and Commerce.

The end of the First Book.

CHAP. I. Of the various Rights and Obligations of Owners and Partners of Ships in cases private.

  • I. Of Navigation in general.
  • II. Of Owners their several Powers over those Vessels they are Part­ners in.
  • III. Where Ships are obliged to make a Voyage before they can be sold; and what may be done when part protest against a Voyage.
  • IV. The Master how brought in by the Owners, and the reason why in such a manner.
  • V. Where the Owners ought to be repaired for the Damages of the Master.
  • VI. Where Ships broke in pieces determine the Partnership as to the Vessel; and where not.
  • VII. Where a Ship shall be the Builders, and where onely his whose Materials she was erected with.
  • VIII. Where Property of the Vessel altered changes not that of the Boat.
  • IX. A Ship for the act of Pyracy becomes forfeited; yet if bona fide sold, where the Property may be questioned.
  • X. Moneys borrowed by the Master, where the same obliges the Own­ers, and where not.
  • XI. Where he that obtains an un­lawful possession of a Ship, shall answer the full Freight to the Owners.
  • XII. And where the Owners shall have their Freight though they l [...]ss their Lading.

I. IN the precedent Book having observed something of the Rights of Persons and of Things in a state of Nature, and how necessarily they came at first to be appropriated, and how equitably they are now continued in the possession of those to whom they are consigned by the donation of others, and maintained or destroyed by the equity of those various Lawes which rules and governs them, all which is justified by the Scripture it self; It may not now seem improper to ex­amine the private causes changing the same, and of the contingencies and advantages that wait on that which we properly call Commerce.

The Great Creator no sooner had finished his Mighty Work, and given Man that Dominion which he now enjoyes as well over the Fish in the Seas, as the Beasts in [Page 192] the Field, he was not forgetful of bestowing on him those things which were necessary for the government and support of the same, creating at the same time Trees which grow as it were spontaneously into Vessels and Canoes, which wanted nothing but launching forth to render them useful for his accommodation, which after­wards he by his divine Genius (inspired by that Mighty One) finding Materials, hath since so Compleated and Equipt as to render it the most beautiful and stupendious Creature (not improperly so called) that the whole World can produce, which being not retarded by lett of Winds, or other contingent Accidents, submits it self to plow the unknown paths of that vast Element, to brave all Encounters of Waves and Rocks, to fathom and survey the vast emensities of the very World it self, to People, Cultivate and Civilize uninhabited and Barbarous Regions, and to proclaim to the Universe the Wonders of the Architect, the Skill of the Pilot, and above all, the Benefits of Commerce, so that it is no won­der at this day to find Nations contending who should surpass each other in the Art of Navigation, and to Mo­nopolize if possible the very Commerce and Trade of the World into their hands; and that, all by the means of this most Excellent Fabrick.

II. Hence it is, that Ships and Vessels of that kind be­ing Aretin. post Joan. Faber. in §. item exer­citor. num. 3. Instit. de oblig. quae ex quasi delict. originally invented for use and profit, not for plea­sure and delight, to plow the Seas, not to lye by the walls, to supply those of the Mountains as well as those on the Sea Coasts.

Therefore upon any probable design the major part of the Owners may even against the consent though not without the privity and knowledge of the rest, Freight out their Vessel to Sea.

If it should so fall out that the major part protest against the Voyage, and but one left that is for the Voy­age, yet the same may be effected by that party, especially if there be equality in Partnership.

III. Owners by Law can no wayes be obliged to Leg. Fin. C. §. pro Socio & poss. inst. & D. cod. continue their paction or partnership without sundering; but yet if they will sunder, the Law Maritime requires some considerations to be performed before they can so do.

[Page 193] And therefore if the Ship be newly built and never Leg. in hoc parg. si conveniat pro Sco. yet made a Voyage, or is newly bought, she ought to be subject to one Voyage upon the common outread and hazard, before any of the Owners shall be heard to sun­der and discharge their parts.

If it falls out that one is so obstinate that his consent Bart. & Paul. in leg. hec distinctio §. cum fundum. ff. locat. cannot be had, yet the Law will enforce him either to hold, or to sell his proportion; but if he will set no price, the rest may outrigg her at their own costs and charges, and whatsoever Freight she earns, he is not to have any share or benefit in the same. But if such Vessel happens Such Vessels when Freight ed our against the grain of some of the Part-Owners, the same is under such Provisoes, Cautions and Limita­tions as the Law in that case requires. to miscarry or be cast away, the rest must answer him his part or proportion in the Vessel.

But if it should fall out that the major part of the Gloss. Leg. si navis & juris in leg. utiq. para. culpae dè rei undic. & leg. arboribus. §. navis de usu fruct. Owners refuse to set out the Vessel to Sea, there by rea­son of the unequality they may not be compelled, but then such Vessel is to be valued and sold; The like where part of the Owners become deficient or unable to set her forth to Sea.

IV. The Master of the Vessel is elegable by the part-Owners not by the majority, yet he that is most able is Leg. non aliter F. de usu & habi. to be preferred; The wisdome of the later Ages have been such, that few have gone out in that condition, but those as have commonly had shares or parts in the same Ves­sel. In the preferring therefore of a Master, his Ability and Honesty is to be considered, since on him rests the charge not onely of the Vessel, but of the Lading; their very Actions subiecting the Owners Co. 4. Inst. 146. to answer for all damage that shall be sustained by him or his Marriners, Hill 23 Car. 2. B. R. Morse versus Slue. be it in Port or at Sea, to the Lading or Goods of the Merchants or Laders, and they are made lyable as well by the Common Lawes 18 H. 6. num. 52. of England, as the Law Mari­time. Naut [...] Caup. Stab. leg. 1. Sect. 3.

V. If the Master commits offences either negligently or wilfully, he shall be responsible over to his Owners for the repairation of damage; nor are they bound to joyn, but may sever and sue apart as well by the Common [Page 194] Law Hill. 26, 27 Car 2. in B. R. Stanley versus Ayles. as the Maritime; So likewise if the Ship hath earned Freight, and part of them receive their parts, the rest may bring their Action for their share without joyn­ing with the other.

VI. If a Ship be borke up or taken in pieces, with an Leg. inter [...]sti­pulantem in §. Sacram. ff. de ver. oblig. intent to convert the same to other uses; if afterwards upon advice or change of mind, she be rebuilt with the same Materialls, yet this is now another, and not the same Ship; especially if the Keel be ript up or changed, and the whole Ship be once all taken a sunder and rebuilt, Leg. quod in §. sin. F. de leg. there determines the Partnership quoad as to the Ship. But if a Ship be ript up in parts, and taken a sunder in parts and repaired in parts, yet she remains still the same Vessel and not another, nay though she hath been so often repaired that there remains not one stick of the Original Fabrick.

VII. If a man shall repair his Ship with Plank or o­ther Leg. Musius ff. de rei venic'. [...] Materialls belonging to another, yet the Ship main­taines and keeps her first Owners.

But if a man shall take Plank and Materialls belonging to another and prepared for the use of Shipping, and with ff. lib. 6. tit. [...]. leg. 61. them build a Ship, the property of the Vessel followes the Owners of the Materialls, and not the builder.

But if a man cuts down the trees of another, or takes Leg. si ex meis. ff. de acq. rer. dom. & leg. si convenerit §. si quis sic ff. de pign. act. Timber or Planks prepared for the erecting or repairing of a dwelling house, nay though some of them are for Shipping, and builds a Ship, the property follows not the Owners but the Builders.

VIII. If a Ship be sold together with her tackle, fur­niture, apparel, and all other her instruments thereunto Leg. Marcellus in §. armamen­ta ff. de re vin­dicat. belonging, yet by those words the Ships boat is not con­veyed, but that remains still in the Owners; so it is if the Ship be freighted out, and afterwards at Sea, she commits Piracy, the Ship is forfeited, but the Boat remaines still to the Owners. Trin. 3 Jac. B. R. Rolls 1. part, Abridg. fo. 530. Bald. in leg. cum proponas Code de nautic. e fenore num. 6.

IX. If a Ship commits Piracy by reason of which, she be­comes Mich. 13 Jac. in B. R. Sir Rich. Bingley's Case. Rolls Abridg fo. 530 forfeited, if before seizure she be Bona-fide sold, the property shall not be questioned, nor the Owners divested of the same.

[Page 195] X. If a Master shall take up Monys to mend or Victual Dig. lib. 14. tit. 1. §. 17. his Ship where there is no occasion, (though generally the Owners shall answer the fact of the Master,) yet here they shall not, but onely the Master. But if there were cause of mending the Ship, though the Master spend the Mony another way, yet the Owner and Ship become lyable to Bridgemans Case, Hobart, fo. 10, 11. the satisfaction of the Creditor; for it were very unreason­able that the Creditor should be bound to take upon him the care of the repairing the Ship, and supply the Owners roome, which must be so if it should be necessary for him, to prove that the money was laid out upon the Ship; so on the other hand, it stands with reason that he be sure that he lends his money on such an occasion, as whereby the Masters fact may oblige the Owners, which he can not do otherwise, unless he knows that the money bor­rowed was necessary for the repair of the Ship, and there­fore Gloss. Affrican. super cod. leg. & §. if the Ship wanted some repairs, and a far greater and Extravagant sum was lent then was needful, the Owners shall not be lyable for the whole. Dig. lib. 6. tit. 1. 62. & l. 7. tit. 1. 12. §. 1. & Pa­pinion on the same Law.

II. If a man gets possession of a Ship having no Title to the same, by the Law Maritime he shall answer such damage as the Ship in all probability might have earned; and the reason of that is, because the onely end of Ship­ping is the imployment thereof.

XII. A Ship is Freighted out, accordingly she receives Digest. lib. 19. tit. 2. 61. Scaevola on the same Law. in her lading pursuant to agreement, afterwards an Em­bargo happens, and the lading is taken as forfeited, yet the Owners shall notwithstanding receive Freight, for here is no fault in them, but only in the Merchant.

Thus men from their Necessity and Safety having from hollow Trees, nay Reeds, Twiggs and Leather (for such were the rude be­ginnings of those stupendious things we now admire) advanced the Art to that degree, as to render it now the most usefullest thing ex­tant; and as the Mathematiques, Astronomy, and other Sciences hath added to its security, so hath succeeding Ages from time to time provided Priviledges and Laws by which it hath alwayes been regulated and governed, the which upon all occasions, and in all Courts hath generally had a genuine construction as near as might be to the Marine Customes; and therefore at this day if a Ship be taken away or the Owners dispossest, they may maintain an Action of Trover and Conversion for 8th or 16th part of the same, as well by the Common Laws of this Kingdome, as the Law Maritime.

CHAP. II. Masters of Ships their Actions considered in reference to cases private and publique.

  • I. A Master or Skipper his Condi­tion considered in reference to his Interest and Authority general­ly.
  • II. Of Goods lost or imbezelled, or any other detriment happens in a Port, who shall answer.
  • III. The Duty of Masters of Ships, as if they shall s [...]t Sayl after an Imbargo, who shall answer.
  • IV. And of faults ascribed to him before departure in Tempestuous weather, staying in Port. &c.
  • V. Over-charging or over-lading the Ship above the birth-mark, or receit of such persons a Ship-board as may hazard the Lading.
  • VI. Of Lading aboard in the Ships of Enemies, his own proving dis­abled.
  • VII. Of shipping of Goods else­where then at the publique Ports or Keyes, and of taking in pro­hibited Goods.
  • VIII. Of wearing unlawful Co­lours or Flaggs; and of yield­ing up his Ship Cowardly if as­saulted, where lyable, and where excused.
  • IX. Of carrying fictitious Coc­quets and Papers, and refusing payment of Customes and Du­ties.
  • X. Of setting Sayl with insufficient Tackle, and of taking in and de­livering out with the like, and of his Charge of Goods till safely delivered.
  • XI. Of departing without giving Notice to the Customer.
  • XII. Of Faults committed by Ma­sters and Skippers at Sea.
  • XIII. Rules in Law in the Char­ging him for Reparation of Da­mage.
  • XIV. Of the Power and Authority that the Master hath in disposing Hipochicating or pledging the Ship, Furniture and Lading.
  • XV. Where Masters are disabled though in necessity to Impawn the Vessel.
  • XVI. Where they may dispose of Vessel and Lading, and where not.
  • XVII. What Vessels and Marri­ners the Master must have for Importing in or Exporting out of his Majesties Plantations in Asia, Affrica and America.
  • XVIII. What Ships may go from Port to Port in England.
  • XIX. Ships not to import the Goods of any Country but of that from whence they are brought.
  • XX. What time the Master shall be coming up after arrived at Gravesend, or at any other Port within the Realm, in order to his discharge.
  • XXI. Of going from Port to Port within the Realm how provi­ded.
  • XXII. Of Goods prohibited to be imported from Netherlands or Germany in any Ships whatso­ever.

[Page 197] I. A Master of a Ship is no more then one who for his knowledg in Navigation, fidelity & discretion, hath the Government of the Ship committed to his care and management, and by the Common Law, by which proper­ties Leg. 1. de ex­ercit. Act. are to be guided, he hath no property either general or special, by the constituting of him a Master; yet the Law Hob. Rep. fo. 11. Bridgeman's Case. looks upon him as an Officer, who must render and give an account for the whole charge when once committed to his care and custody, and upon failer to render satis­faction, and therefore if misfortunes happens, if they be either through negligence, wilfulness, or ignorance of himself or his Mariners, he must be responsible.

II. If the fault be commited in any Port, Haven, River or Creek, or any other place which is infra Corpus Comi­tatus, the Common Law shall have Jurisdiction to an­swer the party damnified and not the Admiralty, Dowda [...] 's case. but if Coke lib 6. fo. 47. the same be committed super altum mare, the Admiralty shall have Jurisdiction of the same; yet if it be on a place where there is divisum imperium, then according to the flux or reflux the Admiralty may challenge, the other of Common right belonging to the Common Law, accord­ing to the resolution given.

And therefore so soon as Merchandises and other Com­modities are put aboard the Ship, whether she be riding in Port, Haven, or any other part of the Seas, he that is Exer­citer Navis is chargeable therewith; and if the same be F. Naut. caup. stab. leg. 1. Sect. 2, 3, 6, 7. there lost or purloyned, or sustaine any damage, hurt or loss, whether in the Haven or Port before, or upon the Seas after she is in her Voyage, whether it be by Marriners or by any other through their permission, he that is Exer­citor Navis must answer the damage, for that the very lading of the goods aboard the Ship does Subject the Ma­ster to answer the same; and with this agrees the Com­mon Law, where it was adjudged, that goods being sent aboard a Ship, and the Master having signed his Bills of Lading for the same; the goods were stowed, and in the night divers persons under the pretence that they were Press Masters entered the Ship and rob'd her of those [Page 198] goods, the Merchant brought an action at the Common Law against the Master, and the Question was, Whe­ther he should answer for the same? for it was alledged on his part, That there was no default or negligence in him, for he had a sufficient guard, the Goods were all lockt up under hatches, the Theeves came as Press-Ma­sters and by force robb'd the Ship, and that the same was vis major, The which the Civil Law does some­times allow. and that he could not have prevented the same; And lastly, That though he was called Master or Ex­ercitor navis, yet he had no share in the Ship, and was but Morse versus Slue, Hill. 23 Car. 2. Re­gis, adjudged on a Special Verdict found at the Barr. in the nature of a Servant acting for a Salary. But not­withstanding it was adjudged for the Plaintiff, for at his peril he must see that all things be forth-coming that are delivered to him, let what accident will happen, (the Act of God, or an Enemy onely excepted) but for Fire, Theeves and the like, he must answer, and is in the nature of a Common Carryer; and that though he receives a Sallary, yet he is a known and publique Debet Exercitor omnium nauta­rum suorum sivi liberi sint, sive servi fa­ctum praestare, nes immerito factum eorum praestat cum ipse eos suo periculo adhibuerit sed non alias praestat quam iu ipsam nave damnum datum sit, caeterum, si extra navim licet à nautis non praestabit, Naut. Caup. Stabilit. Leg. 1. Sect. 7. debet exercitor. Officer, and one that the Law looks upon to answer, and that the Plaintiff hath his Election to charge either Master or Owners, or both at his pleasure, but can have but one satisfaction.

If a Master shall receive Goods at the Wharf or Key, or shall send his Boat for the same, and they happen to Eod. Leg. debet Exercitor. be lost, he shall likewise answer both by the Maritime Law and the Common Law.

III. If Goods are laden a board, and after an Embargo Digest. lib. 9. [...]. tit. Leg. 61. [...] or Restraint from the Prince or State he breaks ground, or endeavours to sayl away, if any damage accrues he must be responsible for the same. The reason is, because his Freight is due and must be paid, nay although the very Goods be seized as bona contra bandos.

IV. He must not sayl in Tempestuous weather, nor put forth to Sea without having first consulted with his company; Leg. Oleron. Judg'. 2. Nor must he stay in Port or Harbour with­out just cause when a fair wind invites his departure.

[Page 199] V. He must not over-charge or lade his Ship above the birth-mark, or take into his Ship any persons of an obscure and unknown condition without Letters of safe conduct.

VI. Nor ought he to lade any of his Merchants Goods Stat. 18 H. 6. cap. 8. aboard any of the Kings Enemies Ships, (admitting his own Vessel leaky or disabled) without Letters of safe l. ult. ad Leg. Rhod. & leg. quum proponas C de Naut. foenor. Conduct, otherwise the same may be made prize, and he must answer the damage that follows the action.

Nor shall he come or sneak into the Creeks or other places when laden homewards, but into the Kings great Ports, (unless he be driven in by Tempest) for other­wise Stat. 4 H. 4. 20. Leg. fin. parag. si propter neces­sitatem. he forfeits to the King all the Merchandize, and therefore must answer.

VII. Nor ought he to ship any Merchandize, but Stat. 15 H. 6. cap. onely at the Publique Ports and Keyes.

He must not lade any prohibited or unlawful Goods, whereby the whole Cargo may be in danger of Confisca­tion, 19 Eliz. cap. 9. 12 P. & M. 5. 1 Jac. cap. 25. or at least subject to seizure or surreption.

He may not set sayl without able and sufficient Marri­ners both for quality and number.

VIII. He may not use any unlawful Colours, En­signs, Pendants, Jacks or Flaggs, Proclama­tion 25 Sept. 26 Car. 2. Per leg. quum propouas ad leg. Rhod. D. leg. in fin. & leg. si ven­dita peric. rei vend. & leg. 5. & 6. Naut. Caup. whereby his Ship or Lading may incur a Seizure, or the Cargo receive any detriment or damage.

He must not suffer the Lading to be stolne or im­bezled, if the same be, he must be responsible, unless it be where there is vis major, as if he be assaulted at Sea either by Enemies, Ships of Reprize, or Pyrats, there if no fault or negligence was in him, but that he performed the part of an honest faithful and valiant Stat. 16 Car. 2. cap. 8. man, he shall be excused. Yet it hath been adjudged, That if a Merchant-man lyes in a Port or Haven, and a Pyrat, Sea Rover, or other Thieves enter her and over-power Morse versus Slue, 23 Car. in B. R. Rott. her men, and then rob her, yet the Master must be responsible; but if an Enemy enter and commit the de­pridation, there the Master is excused.

IX. He must not carry any counterfeit Cocquets or other fictitious and colourable Ship Papers to involve the 13 R. 2. cap. 9. Goods of the Innocent with the Nocent. Leg. 1. Cod. de Navib. non ex­cusand.

[Page 200] Nor must he refuse the payment of the just and Ordi­nary Secund. sin. leg. ult. ad leg. Rhod. & leg. quum proponas C. de Naut. soenor. Duties and Port-charges, Customes and Imposts, to the hazard of any part of his Lading; yet if he offers that which is just and pertaines to pay, then he is excu­sed.

X. He must not set Sail with insufficient Rigging or Leg. Oleron. 24. Per Leg. quant. de Pub. Tackle, or with other or fewer Cables then is usual and requisite, respect being had to the burthen of the Vessel: And if any damage happens by the delivery of the goods into the Lighter, as that the Ropes break and the like, there he must answer; but if the Lighter comes to the Wharf or Key, and then in taking up the goods, the Rope breaks, the Master is excused, and the Wharfinger is liable. Coke lib. En­tries, fo. 3.

If fine goods or the like are put into a close Lighter and to be conveyed from the Ship to the Key, it is usual there the Master sends a Competent number of his Marriners to look to the Merchandize, if then any of the goods are lost or imbezled, the Master is responsible Pasch. 26 Car. rul'd at Guild-Hall before L. C. J. Hale, inter and Peacock. and not the Wharfinger; but if such goods are to be sent aboard a Ship, there the Wharfinger at his peril must take care the same be preserved.

XI. After his arrival at Port, he ought to see that the Ship be well moared and anchored, and after reladed not to depart or set Sail till he hath been cleared; for if any damage happens by reason of any fault or negligence in 18 Eliz. cap. 9. 14 Car. 2. cap. 11. him or his Marriners, whereby the Merchant or the La­ding receives any damage, he must answer the same.

XII. And as the Law ascribes these things and many more to him as faults, when committed by him or his Marriners, in Ports, so there are other things which the Law looks upon to be as faults in him in his Voyage, when done.

As if he deviates in his course without just cause, or steers a dangerous and unusual way, when he may have a Digest. l. cum in debito ff. de Probat. more secure passage: Though to avoid illegal impositions, he may somewhat change his course; nor may he sail by places infested with Pyrates, Enemies, or other places no­toriously known to be unsafe, nor engage his Vessel among [Page 201] Rocks or remarkable Sands, being thereto not necessitated Li. 1. Cod. de Navibus non excusand. by violence of Wind and Weather, or deluded by false lights.

XIII. By the maritime Law, he that will charge a Ma­ster with a fault as in relation to his Duty, must not think that a generall charge is sufficient in Law, but he ought to assigne and specifie the very fault wherewith he is so charged.

So, he that will infer, that such or such a sad disaster to have happned or been occasioned by reason of some fault in the Marriners, must not only prove the fault it self, but must also prove that that fault did dispose to such a sad event, or that such a misfortune could not have hap­pened without such a fault precedent.

XIV. When Voyages are undertaken, the Master is there placed in by the Owners, and they ought to make good the Masters fact and deed; Recepit salvum fore, utrum si in navim, res mis­sae ei assignatae sint, an et si non sint è assignatae, hoc tamen ipso quod in navim missae, sint re­ceptae videntur et omnium rece­pit custodiam quae in navim illotae sunt et factum non so­lum nautarum praestare debet sed et rectorum. F. Nautae Caup. stab. leg. 1. Sect. recepit. And therefore as the whole Care and Charge of Ship and Goods are com­mitted to the Master, it is the prudence of the Owners to be careful who they will admit Commander of their Ship, since their actions subject them to answer the da­mage, or what ever other act he shall do in reference to his Imploy: And therefore he can freight out the Ves­sel, take in Goods and Passengers, mend and furnish the Ship, and to that effect if need be in a strange Coun­trey he may borrow Money with advice of his Marri­ners, upon some of the Tackle, or sell some of the Mer­chandize. If part of the Goods shall be sold in such ne­cessity, the highest price that the remainder are sold for must be answered and paid to the Merchant; after which the Merchant must pay for the Freight of those Goods as well as for the remainder, Leg. Oleron 1. But if the Ship in the Voyage happens to be cast away, then onely shall be tendred the price that the Goods were bought for.

By the Common Law the Master of a Ship could not impawn the Ship or Goods for no property either ge­neral or special, nor such power is given unto him by the constituting of him a Master.

Yet the Common Law hath held the Law of Oleron [Page 202] reasonable, That if a Ship be at Sea and takes leake, or otherwise want Victual or other Necessaries, whereby either her self be in danger or the Voyage defeated, that in such case of necessity the Master may impawn for Money or other things to relieve such Extremities by im­ploying the money to that end; and therefore he being the person trusted with the Ship and Voyage, may there­fore reasonably be thought to have that power given to Leg. Oleron. Cap. 22. Bridgeman's Case, Hobart, fo. 10, 11. him implicitly, rather then to see the whole lost.

But a Master for any debt of his own cannot impawn or Hipothycate the Ship, &c. for the same is no wayes lyable but in cases of neccssity for the relief and com­pleating of the Voyage.

Nor can he sell or dispose of the same without an au­thority or Licence from the Owners; and when he does Impawn or Hipothycate the Vessel or Furniture, he Leg. Oleron Cap. 1. 12. ought to have the consent and advice of his Marri­ners.

XV. And where the Ship is well engaged, she is for ever obliged, and the Owners are concluded thereby, till Redemption.

But in regard Masters might not be tempted to en­gage the Owners, or infetter them with such sort of Obligations, but where there is very apparent cause and necessity, They seldome suffer any to go Skipper or Master but he that has a share or part in her; so that if Moneys or provisions be taken up, he must bear his equal share and proportion with the rest.

The Master cannot on every case of necessity impawn the Vessel or Furniture; for if she be Freighted, and he Judgment Ole­ron. Cap. 22. and the Owners are to joyn in the laying in of the pro­visions for the Voyage, and parhaps he wants money, (a great sign of necessity) yet can he not impawn the Vessel or Furniture, any other or further then for his own part or share in her, the which he may transfer and grant as a man may do an 8th or 5th part in Lands or Houses: But such obligation of the Vessel must be in forreign parts or places where the calamity or necessity is universal on the Vessell.

XVI. If the Vessel happens afterwards to be wreckt [Page 203] or cast away, and the Marriners by their great pains and care recover some of the ruines and lading, the Master in that case may pledge the same, the produce of which he may distribute amongst his distressed Marriners in order to the carrying them home to their own Countrey; But if the Marriners no wayes contributed to the Sal­vage, Judgement, Oleron. Cap. 3. then their reward is sunk and lost with the Vessel.

But if there be any considerable part of the lading pre­served, he ought not to dismiss his Marriners, till advice from the Laders or Freighters; for otherwise perchance he may be made lyable.

If Merchants Freight a Vessel at their own charges, and set her to Sea, and then happens afterwards to be Weather-bound, the Master may impawn either Ship or Lading at his pleasure, or at least such as he could con­veniently Leg. Oleron cap. 22. raise moneys on, rather then see the whole Voy­age lost. And if he cannot pawn the Lading, he may sell the same, that is, so much as is necessary; in all which cases his act obliges.

However, Orders and Instructions are as carefully to be look'd upon and followed as the Magnate.

XVII. He is not to Import into, or Export out of The like pro­vision on the like penalty is for Goods of Muscovy, and of the Domi­nions and Territories of the Great Czar or Emperour. So likewise of Currants be­longing to the Othoman Ter­ritories or Dominions. any the English Plantations in Asia, Affrica, or America, but in English or Irish Vessels, or of the Vessels built and belonging to that Country, Island, Plantation or Terri­tory. The Master and 3 fourths of the Marriners to be English, upon forfeiture of Ship and Goods. And if otherwise, they are to be look't upon as Prize, and may be seized by any of the Kings Officers and Commanders, and to be divided as Prizes, according to the Orders and Rules of the Sea.

All Goods of the Growth of his Majesties Plantations are not to be imported into England, Ireland, or Wales, Islands of Jersey or Guernsey, but in such Vessels as truly belong to Owners that are of England, Ireland, Wales, Jersey or Guernsey, and three fourths at least of the Marriners are to be English, upon forfeiture of Ship and Note, In cases of sickness, Death, Capti­vity, Salves the Clause as to Marriners. Goods.

The Goods and Wares of those Plantations, and brought in such manner as aforesaid, must be brought from those very Countries of their several productions and growths, [Page 204] or from the Ports where they are usually shipped out; on forfeiture of Ship and Goods.

XVIII. No Ship to go from Port to Port in England, Ireland, Wales, Jersey, or Guernsey, or Berwick, unless the Owners are Denizens or Naturalized, and the Master That is, those that do not belong to English, Irish, Welsh, or those of Jersey or Guernsey. and 3 fourths to be English.

All Owners must swear that their Vessels or Ships are their own proper Ships and Vessels, and that no For­reigner has any share or part in her, and must enter the same, and that she was bought for a valuable consi­deration, Bona fide.

Nor to bring in any goods from any place, but what are of the growth of that very Country, or those places which usually are for the first Shipping, on pain of forfei­ture of their Vessel and Furniture.

This does not extend, but Masters may take in goods in any part of the Levant or Streights, although they are not of the very growth of the place so that they be im­ported in English Ships 3 fourths English Marriners: So 12 Car 2. cap. 18. likewise those Ships that are for India in any of those Seas to the Southward and Eastward of Cabo bona Speranza, although the Ports are not the places of their very growth.

Any people of England may import (the Master and Marriners 3 fourths English) any goods or wares from Spain, Portugal, Azores, Madera, or Canary Islands. Nay in Ships that are not English built Bullion may be im­ported; so likewise in those that are taken by way of Prize Bona fide.

But Sugars, Tobacco, Cottens, Ginger, Indicoes, Fu­stick, or any other dying Wood of the growth of his Ma­jesties Plantations, are to be Shipped, carryed or convey­ed from any of the English Plantations, are to be carryed to no place in the world, but are to come directly for England, Ireland, Wales, or Barwick, upon pain of for­feiture of Ship and goods, and the Master is to give bond with one Security in a Thousand pound if the Ship be under the burden of a 100 Tuns, and 2000 l. if above, that upon Lading he brings his Ship directly into Eng­land, Ireland, Wales, or Berwick, (the danger of the Seas excepted,) so likewise they are to do the same for the Ships that shall go from the Plantations at the Plantations [Page 205] to the Governour, upon forseiture of the Ship and Goods.

XX. When the Master shall arrive at Gravesend, he 12 Car. 2. Cap. 18. shall not be above 3. dayes coming from thence to the place of discharge; nor is not to touch at any Key or Wharfe till he comes to Chesters Key, unless hindred by contrary Winds, or draught of Water, or other just im­pediment to be allowed by the Officers; And like­wise he or his Purser are there to make Oath of the Burthen, Contents and Lading of his Ship, and of the marks, number, contents and qualities of every parcel of Goods therein laden to the best of his knowledge; also where and in what Port she took in her Lading, and what Country built, and how manned; who was Master during the Voyage, and who the Owners; And in out-Ports must come up to the place of unlading, as the con­dition of the Port requires, and make Entries, on pain of 100 l.

Nor is such Master to lade aboard any Goods outwards to any place whatsoever, without Entring the Ship at the 14 Car. 2. cap. 11. 12 Car. cap. 18. Custome-House of her Captain, Master, Burthen, Guns, Ammunition, and to what place she intends, and before departure to bring in a Note under his hand of every Merchant that shall have layd aboard any Goods, toge­ther with the marks and numbers of such Goods, and be sworn as to the same, on pain of 100 l.

No Captain, Master, Purser of any of his Majesties Ships of Warr shall unlade any Goods before Entry made, on pain of 100 l.

Note. There is a List of all Forraign built Ships in the Exchequer, and that no Forraign Ship not built in any of his Majesties Dominions of Asia, Affrica, or America, after 1. Octob. 1662. and expressly named in the List, shall enjoy the Priviledges of a Ship belonging to England or Ireland, although owned and manned by English, ex­cept onely such as are taken by way of reprize and con­demnation made in the Admiralty as lawful prize; none but English and Irish Subjects in the Plantations are to be accounted English.

If the Master shall have freight from Port to Port with­in the Realm, he ought to have Warrant for the same, [Page 206] on pain of forfeiture of the goods, and he is to take forth a Cockquet, and become bound to go to such Port de­signed for, and to return a Certificate from the chief Offi­cers of that port where the same was designed for, and discharged within 6 months from the date of the Cock­quet.

But from the Netherlands or Germany there may not be imported no sort of Wines (other then Rhenish) Spicery, Grocery, Tobacco, Pot-ashes, Pitch, Tar, Salt, Rozin, Deal-boards, hard Timber, or Olives, Oyl, in any man­ner of Ships whatsoever.

It might not seem impertinent that this latter part which is abridged as in reference to matters publique should be inserted, for that sometime it may happen that an honest and well meaning Master or Skipper might innocently involve and hazard the loss of his Ship by committing acts against Lawes positive and prohibitory; and though Masters and Marriners qua tales be not so ex­quisite as to know all that does belong to their duties, or at least that which the Law layes incumbent on their shoulders, yet for that most of them have some small glimmerings of the same, that such hints in matters pub­lique as well as private may not onely be of some ad­vantage to them, but likewise to Merchants, who al­wayes upon the miscarriages of the Masters, prove the greatest sufferers, the offenders, for the most part, proving not sufficiently solvant.

CHAP. III. Of Marriners, their several Offices and Immunities: And of Barratry committed by them.

  • I. The several Maritime Officers a Shipboard, and their Charges and Duties.
  • II. Of the Masters power and au­thority over them, as in relation to punishing or otherwise.
  • III. The duty that Marriners owe to each other, and they to the Ship.
  • IV. Their attendance requisite when laded; and if detriment, where to be responsible.
  • V. Where Accidents befall them, where they ought to be look't after, and at whose costs.
  • VI. The Marriners Oath where re­quisite to the discharging of the Master.
  • VII. What Accidents does destroy, and what not their wages.
  • VIII. Where they may joyn all in a Suit for the recovery of their Wages, and where not.
  • IX. Of their wages where lyable to answer damage.
  • X. Where they absolutely lose their wages.
  • XI. Of Money or Goods taken up by a Marriner, where it shall be debt, and where a discount of his wages.
  • XII. And of their becoming ly­able to correction.
  • XIII. Barratry in the Marr [...] ­ners, the reason why the Law imputes Offences in them to be answered by the Master.
  • XIV. In what cases the Master shall become lyable for the acti­ons of his Marriners.
  • XV. Of Goods purloyned before they are brought a Shipboard, where the Master is bound to an­swer, and where not.
  • XVI. Of the Antiquity of such Custome.
  • XVII. Of Goods brought secret­ly in a Shipboard if purloyned, where the Master is not made ly­able.
  • XVIII. Of Caution or fore­warning, where the same shall excuse the Master.
  • XIX. Where the Master shall be lyable notwithstanding such Caution.

I. THe Persons Ordinary for sayling in Ships have divers Denominations; The first which is the Leg. 1. & Pa­sim' ad leg. Rhod. & l. 1. Parag. 2. Naut. Caupo. Master, known to us and by most Nations both now and of old, and especially by the Roman Lawes, Na­vicularius, or Magister Navis; in English rendred Master, or Exercitor Navis; in the Tutonique, Skipper; by the Gre­cians, [Page 208] Nauarchus or Nauclerus; by the Italian, Patrono. But this is onely to those Vessels that are Ships of Burden and of Carriage: For to Ships of Warr the principal there is commonly called Commander or Captain. The next in Order of Office to the Master, is he who directs the Ship in the Course of her Voyage, by the French called Pylott; by the English and Flemming, Steirsman; by the Romans, Gubernator; by the Italians, Nochiero Pilotto and Nauarchus, as Gerretus writes. The third is esteemed the Master's Mate or Companion, chiefly if the Master be Steers-man himself; of old by the Grecian and Roman called Proreta; his Charge is to command all before the Mast. Vid. leg. Con­sol.

His Successor in order is the Carpenter or Shipwright, by those two Nations of old, called Naupegus by the latter, by the first Calaphates, from the Loyns of one of that Rank sprang that great Emperour Michael, sirna­med Calaphates, who denied not to own the quality of his The Father was of Phala­gonia, as Eg­natius Vola teranus ob­serves, lib. 23. Father among his Regal Titles. The very name Cala­phate, the Venetian and Italian still use to this day.

The next who succeeds him in Order, is he who bears the Charge of the Ships Boat, by the Italians called Bra­chierie; by the Grecians and Romans, Garabita, from Cara­bus, which denotes the Boat of a Ship.

The Sixth in Order, especially in Ships of Burden, is the Clerk or Purser, by the Italian called Scrivano, whose duty is the registring and keeping the Accounts of all re­ceived in or delivered out of the Ship; for all other Goods that are not by him entred or taken into charge, if they happen to be cast over-board in storm, or are stolne or imbezled, the Master answers them not, there being no Ill Consolato & per Stat. 14 Car. 2. Cap. 11. obligation on him by Law for the same; his duty is to un­lade by day, not night.

The 7th a most necessary Officer, as long as there are aboard bellies, sharp stomachs and provision, called the Cook.

The 8th is the Ships Boy, who keeps her continually in Harbours, called of old by the Grecians, Nauphylakes; by the Italians, Guardiano: These persons are distinct in offices and names, and are likewise distinguished in their hyres and wages; The rest of the Crew are under the common name of Marriners, by the Romans called [Page 209] Nautas; But the Tarpollians, or those Youths or Boyes Eudeum ad leg. 1. Naut. Caup. tot. that are Apprentices obliged to the most servile duties in the Ship were of old called Mesonautae.

II. The Master hath the supream Rule a Shipboard, and by that means his power and authority is by Law much countenanced, especially in the keeping his Crew in peace so long as they eat his bread; and if a Marriner shall happen to be bruised or hurt in doing his duty and service, the Master Per Leg. Ole­ron, Chap. 6. is to take care that he be carefully look't after in order to the procuring his recovery; and if it be occasioned by the miscarriage of another a ship­board, he may refund the damage out of his wages, but Per Leg. 1. de exerc. act. & l. in fin. Naut. Caup. still remembring who gave the first assault.

If it happens that the Master commands his Boat to be manned out, and it so happens that the same is out of Order, or unfit to take the Sea, the Tewes, or other ac­coutriments being impotent, if the Marriners happen to be drowned, the Master is to repay one whole years hyre to the Heirs of the drowned: Therefore Masters ought carefully to view and see that the Boat be fit for men to trust their lives in upon his command.

If a Marriner shall commit a fault, and the Master shall lift up the Towell 3. times before any Marriner, and he shall not submit, the Master at the next place of land may discharge him; and if he refuses to go ashoare, he shall lose half his wages, and all his Goods within the Ship: If the Marriner shall submit, and the Master will Per Leg. Oleron cap. 14. not receive the same, he shall have his whole Wages: Or if the Marriner shall depart the Ship on the Master's command, and the Master happens not to take another, if any damage happens to Ship or Goods, the Master must answer.

III. Marriners must help one another at the Sea and Per Leg. Ole­ron, Cap. 13. as per Leg. Denmarke. in Port; if they refuse, upon the Oaths of his Fellowes, he loseth his wages. None of the Crew must or ought to leave the Ship without leave of the Master when she comes to a Port, or rides at Anchor, but alwayes constant­ly to wait upon her till they are discharged, or have leave, at least half to be left a ship-board.

[Page 210] A Marriner may not carry out of the Ship above one meals meat; but drink not a drop; and when a shipboard, leg. nemo de Reg. jur. & leg. plerum (que) de in jus voc. ought not to be there arrested for debt, but onely so much of his wages in the hands of the Master attached: yet this is doubted if it be not on a sworn debt, t hat is, a Judgment or Sentence, or a penalty to the King.

They ought not to depart from a Shipboard when once admitted into their full pay, (which is always when they break ground,) without licence of the Master; and before they may so do, they are to leave a sufficient number to guard the Ship and Decks.

IV. If the Ship breaks ground, and is set sayl, if after she arrives at her desired Port, their full pay continues till she returns; nor may they in any wise depart from a shipboard without leave or licence of the Master; if they do, and any disaster happens, they must answer: yet at such Port if the Vessel be well moared and Ancho­red Leg. Oleron Cap. 5. with two Cables, they may go without leave, yet so as they leave a sufficient number behind to guard the Decks: but then their return must be in due season; for if they make a longer stay, they must make satisfaction.

V. If Marriners get drunk and wound one another, they are not to be cured at the charge of the Master or Ship; for such Accidents are not done in the service of the Ship: but if any of the Marriners be any wayes wounded, or do become ill in the Service of the Ship, they are to be provided for at the charges of the Ship; Leg. Oleron Cap. 7. and if they be so ill as not fit to travail, they are to be left ashoare, and to take care he hath all accommodations of humanity administred to him: and if the Ship is ready for a departure, she is not to stay for him; if he recover, he is to have his full wages, deducting the Masters charges which he laid out for him.

VI. In case of Storm if Goods are cast over-board for lightning the Ship, the Oaths of the Marriners who Leg. Oleron, Cap. 11. swearing that it was done for the preservation of the Vessel and the rest of the Lading, the same shall dis­charge the Master.

So Goods damnified at Sea, are cleared by the Oath of [Page 211] the Master and Marriners, by the Laws of Olerone.

To assault the Master a shipboard, is a Crime that sub­jects Leg. Oleron, Cap. 13. the Marriner's hand to be cut off, unless he redeems at 5. Solz.

VII. If a Ship happens to be seized on for Debt or otherwise to become forteited, the Marriners must re­ceive Consolat. del Mare. their wages, unless in some cases where the wages is forfeited as well as the Ship; As if they have Letters of Mart, and instead of that they commit Pyracy, by Trin. 7 Jac. B. R. Abr. Rolls, fo. 530. reason of which there becomes a forfeiture of all; but lading of prohibited Goods aboard a Ship, as Wooll, and the like, though it subjects the Vessel to a forfeiture, yet it disables not the Marriner of his wages; for the Marriners having honestly performed their parts, the Ship is tacitly obliged for their wages: But if the Ship perishes at Sea, they lose their wages, and the Owners their Freight. And this being the Maritime Custome, is allowed by the Common Law as well as the Civil Law.

VIII. The Courts at Westminster have been very favourable to Marriners in order to the suing for wages, for at the Common Law they cannot joyn, but must sue all distinct and apart for their wages.

Yet in the Admiralty they may all joyn, and the Courts at Westminster will not grant a Prohibition Not but they may, notwith­standing the Resolutions of 8 Car. Cro. 3. Reports, which are not now taken to be Law.: And so it was Rul'd, where one Jones a Master of a Ship was sentenc'd in the Admiralty for Wages at the Suit of Poor Marriners, a Prohibition being prayed upon a sug­gestion that the Contract was made at Land, and not super altum mare: The Court denyed it, for that he Jones versus the Poor Mar­riners. Winch. Rep. came too late, Sentence being given below against him: Yet if the Marriners had onely Libelled, and there had been no Sentence, and the Defendant had prayed a Pro­hibition as above, yet the Court would have denyed it. And this has been and is usually done.

But the Court will be very well informed that the Libel is for Marriners wages; for some who work Car­penters work and such like labour aboard a Ship in a Sitwell & al' Owners of a Ship, versus Love & al'. Mich. 27 Car. in B. R. Haven or Port within the Realm (which is infra Corpus Comitatus, (notwithstanding those great and ingenious Objections against it) and must be tryed by the Com­mon [Page 212] Law, and not elsewhere,) will libel under that cloake for Marriners wages. But the Court in that case will grant a Prohibition. And so it was done in the like case.

But if a Ship rides at Anchor in the Sea, and the Master sends his Boat a shoare for Victuals or other pro­visions for the Ship, and accordingly the Providore or the Slopp-seller does bring victuals and provisions aboard; in that case if the contract be made there, it Latch fo. 11. Hill. 1 Car. in B. R. Godfrey's Case. must be sued for in the Admiralty: but if the goods are by the Purser or Marriners contracted for at land, they must sue at Common Law.

IX. If Goods are so imbezled or so damnified that the Ships Crew must answer, the Owners and Master must deduct the same out of their Freight to the Mer­chants, and the Master out of the wages of the Marri­ners; for though Freight is the Mother of wages, so is it the very Father of Damage: For before the Marriner can claym his wages out of what the Ship hath earn'd, the Ship must be acquitted from the damage that the Merchant hath sustain'd, by the negligence or fault of the Marriners: And the reason is, for that as the Goods are obliged to answer the Freight, so the Freight and Ship is tacitly obliged to clear the damage; which b [...]ing done, the Marriners are then let in to their wages.

X. If a Marriner be hyred, and he deserts the Service before the Voyage ended; by the Law Maritime he loses leg. oleron, his wages: And the same Custome at Common Law pleaded, it hasbeen conceived will barr him.

If a Marriner shall commit any wilful or negligent fault, by reason of which the Master, Owners, or the Ship answers damage to the Merchant, an Action lyes well against him.

XI. If a Marriner takes up moneys or Cloaths, and the same is entred in the Purser's Book; by the Custome Maritime it is a discount or a receipt of so much of their wages as the same amounts to: and in an Action brought by them for their wages, the same shall be allowed, and [Page 213] is not accounted mutual, the one to bring his Action for the cloaths, and the other for his wages.

XII. A Master of a Ship may give moderate and Pasch. 27 Car. in B. R. Capr. Pidgeon adsect Argoe. due Correction to his Marriners, and if they bring an Action against him, he may justifie the same at the Com­mon Law; and by the Law of Oleron, if a Marriner shall assault the Master, he is to pay 5. Solz, or lose his Leg. Oleron, Cap. 13. hand.

Marriners after they have unladed the Ship, if they de­mand their wages, and there be any intention of their Per Leg. Oleron Cap. 18. departure, the Master may detain a reasonable proportion of the same till they bring back the Ship, or give cau­tion to serve out the whole Voyage.

XIII. Barratry of the Marriners is a Disease so Epi­demical a shipboard, that it is very rare for a master, be his Industry never so great to prevent; a Span of Villany a shipboard soon spreads out to a Cloud, for no other cause but of that circular encouragement that one knavish Marriner gives to another.

However the Law does in such cases impute offences and faults committed by them to be negligences in the Justit. de ob. quae ex dilect. §. Fin. Master; and were it otherwise, the Merchant would be in a very dangerous condition.

The Reasons why they ought to be responsible, are, for that the Marriners are of his own choosing, and un­der Pasch. 11 Jac, in B. R. Hernes versus Smith. Rolls Abridg. 530. his Correction and Government, and know no other Superiour a shipboard but himself; and if they are faulty, he may correct and punish them, and justifie the same by Law: and likewise if the fact is apparently proved against them, may re-imburse himself out of their wages.

XIV. And therefore in all cases wheresoever the Merchants loads aboard any Goods or Merchandize, if Naut. caup. Stab. Leg. 1. Sect. 3, 6, & 7. Morse versus Slue. Pasch. 23 Car. 2. in B. R. they be lost, imbezled, or any otherwise damnified, he must be responsible for them; for the very lading them aboard makes him lyable, and that as well by the Com­mon Law, as the Law Maritime.

XV. Nay, if his Marriners go with the Ship Boat [Page 214] to the Key or Wharfe to fetch Goods a Shipboard, if once they have taken charge of them, the Master be­comes Gloss. super [...]od. Sect. verb. & factum. immediately responsible if they steal, lose, dam­nifie or imbezle them.

XVI. The antient'st Record that is found extant, is that in Edw. the Third's time, where one brought an Action of Trespass against the Master for the imbezle­ment by his Marriners of 22 pieces of Gold, Bowe, Sheaf of Arrowes, Sword, and other things; And ad­judged he should answer. And for that the same is or may be of great moment, accept of a Transcript of the Record, as the same was certified into Chancery, in order to have it sent into the Kings-Bench, to enable the Plaintiff to bring an Action upon the same Judgment in any place in England where he could meet with the Defendant.

VEnerabili in Christo Patri Dn̄o I. Dei gratia Brevia Regis in Turri London. Trin. Anno 24 E. 3. num. 45. Bristol. Wygorn Episcopo Dn̄i Regis Ed. Cancellar̄ vel eius locum tenenti sui humiles, & devoti Robertus Gyene, Major Uille Bristol, Edwardus Blanckett, & Ioh̄es de Castle-acre Ballivi libertatem ejusdem Uille, salutem cum Omnia reverentia & honore, De tenori & Recordi & ꝓcessus loquelle que fuit coram no­bis in Cur̄ Domini Regis ibm sine braevi inter Henr̄ Pilk & Iurdanum Uenere Magistrum navis voc̄ la Graciane de Bayone in plito transgress̄ ꝓut ꝑ breve Dn̄i Regis nobis directum fuit vos inde certificatur, sub sigillis nr̄is vobis si placet mitimus in hijs scriptis. Ad placit Tols tent̄ ibm die Martis ꝓx post Festum Epiphaniae Domini anno Regni Regis nunc 24. Henr̄ Pilk quer̄ opt. se. versus Iurdanum Uenore Magi­strum navis vocat̄ la Graciane de Bayone de plito transgress̄ ꝑ pl &c. & unde quer̄, quod secundum le­gem & consuetudinem de OLERON unusquis (que) Ma­gister navis tenetur respondere de quacun (que) transgr̄ ꝑ servientes suos in eadem fact, & Ioh̄es de Rule & Fartolet de Fornes Servientes p̄dicti Iurdani Magi­steri navis p̄dicte die Mercur̄ ꝓx' ante Festum Omnium Sanctorum Anno Regui p̄dicti Regis Ed. 23. in Mari iuxta Britan: in eadem navi de Iohanne de Cornub̄ [Page 215] servient̄ p̄dict̄ Henr̄ 22. libt̄ in auro arcus Sagit glad. & al bona & catalla ad valenc̄ 40 l. ceperunt & asporta­verunt injuste &c. ad dampnum p̄dict̄ Henr̄ 60 l. & si p̄dictus Iurdanus hoc velit dedicere p̄dict̄ Henr̄ para­tus est verificare &c. Et p̄dictus Iurdanus venit & di­cit qd lex de Oleron talis est qd si aliqua bona & ca­talla Magistro alicujus navis liberata sunt custodiend, unde idem Magister ꝓ eisdem vel ꝓ aliqua alia re in eadem navi facta manucap̄ illo modo Magr̄ navis te­netur respondere, non alio modo, Et suꝑ hoc petit Iudicium, Et p̄dict Henr̄ dicit qd unusquis (que) Magister navis tenetur respondere doe quacun (que) transgressione ꝑ servientes suos in navi sua fact, & petit Iudicium simlr̄. Et suꝑ hoc p̄dicte ꝑtes habent diem hic die Sabati ꝓx̄ post Festum sc̄i Hillarij ꝓx̄. futur̄ ad audiend judicium suum &c. Ad quem diem pdicte ꝑtes venerunt & pe­tierunt Iudicium suum &c. Et recitat. Recordo & pro­cessu p̄dictis in plena Curia Coram Majore & Balli­vis & alijs probis hominibus Uille & Magistris & Ma­rinarijs, visum fuit Curie, quod unusquis (que) Magister navis tenetur respondere de quacun (que) transgressione ꝑ servientes suos in navi sua facta, Ideo consideratum The Judgment in this case is according to Law, & ought not to have been a Capia­tur; for it is not such a Trespass as the King is entitled to a Fine. Vide 2 Cro. 224. Beedle versus Morris, 7 Jac. Co. Entries the same, 347. est, quod p̄dict Henr̄ recuperet dampna sua 40 l. vsus p̄dict Iurdanum ꝑ Cur̄ ta [...]at & nichilominus idem Iurdanus transgressione p̄dicta in mīa.

XVII. The Master subject to answer damage, is to be understood in all such cases where the Lading was brought aboard either by his consent or his Pursers; for any other, or such as shall be secretly brought in not be­ing Leg. 1. in fin. Naut. Caup. per leg. itaque de furlis. entred in the Purser's Book, or in the Bills of Lading, the Master is not obliged to see forth-coming, unless it be such Goods as the parties bring into the Ship about them, as cloaths, money and the like, as above, those things being seldome entred, yet most commonly are visible, the Master by Law is responsible for.

[Page 216] XVIII. So likewise if a Master forewarn a Passen­ger Eod. Leg. in fin. Naut. Caup. & p [...]r Leg, ita (que) de eod. edict. to keep his Goods, and that he will no wayes take care of them, and if they be lost or purloyned by the Crew, he will not be obliged to see them forth-come­ing; The Master is not there held responsible in case Bartol. & Ja­son in leg. non solum §. mortem. de no [...] oper. of a loss, especially if there be any thing of an agree­ment thereunto.

XIX. But if Goods shall be sent aboard a Ship, Brand versus Glasses, Sir Francis Moore Trin. 25 Eliz. in the Exche­quer. and the Master shall appoint a Cabin for the same, and deliver the Key to the Lader and tell him he will not be responsible if a loss happens; yet if the Goods are stole, he must notwithstanding make satisfaction: By the Common Law it shall bind an Inn-keeper. Vide the same Book, Mich. 7 Eliz. post. W [...]rley's case.

Note, That Goods once delivered to a Master, the Cargo is not subject to be attached in his hands, nor can any Custome whatsoever support the same; for they are in Law as it were bayled to the Ship untill the Freight and all other charges are paid *: and very much doubted whether an Attachment can be made in London of any Goods at all lying a Shipboard in the Rives of Thames, (which though the Port of London) notwithstanding Freight and all other charges are paid off.

CHAP. IV. Of Freight, Charter-parties, and Demorage.

  • I. The various wayes that Ships may be Freighted at this day.
  • II. The ancient way of Freight­ing.
  • III. How the same is governed upon the various Contracts, and of Accidents happening to Ma­sters or Laders preventing the Voyage.
  • IV. Of Ships laded and unladed before the Voyage begun; Their becoming disabled, viz. perish in the Voyage before the same is compleated.
  • V. Of Ships departure considered as in reference to Freight and Damage.
  • VI. Of Freight arising on Tra­ding Voyages, and lost by con­tingent actions, considered by the Common Law, and the Law Maritime.
  • VII. Of Freight becoming due upon the various wayes of Con­tract, or general where none was agreed for.
  • VIII. Of Faults arising from the Freighters, and of the decease of the Ship, as in reference to Freight.
  • IX. Of Faults of Masters ari­sing from taking in Goods more than were contracted for; And of being forc'd into Ports in his passage.
  • X. Passengers dying, the Ship [...] title to their Goods and Con­cerns.
  • XI. The Ship in construction of Law, how far lyable to Freight.
  • XII. Ships taken and retaken in Warr, whether the same destroyes the Contract.
  • XIII. Goods become lost without fault of the Ship, whether Freight becomes due.
  • XIV. Of Freight contracted with persons deficient.
  • XV. Of Ships contracted for by the mouth to be paid at the ar­rival at a Port; Ship is cast away, the Goods saved: whe­ther the Freight ought to he paid.

I. IN the Freighting of Ships respect is alwayes had to the Ship it self, or else to a certain part there­of.

Again, The Merchants either Freight her by the Month, or the Entire Voyage, or by the Tun; for it is one thing to Freight a Ship, and another thing to take certain Tunnage to Freight.

So also it is one thing to be a Cape-Merchant, an­other to be an under Freighter.

[Page 218] II. There was of old another way of Freighting, which was when the Merchant agreed with the Master 21 E. 3. Cottons Abridgment of the Parliament Records, fo. 63 for a Sum certain to convoy the Goods ensur'd against all peril; such were to be responsible if any detriment or loss happened: but that is now become obsolete.

III. Freight is governed generally by the contract, Naut. Caupo. ftab. &c. Leg. 1. §. quamcun (que) vim. and varies according to the agreement, reduced gene­rally into a Writing commonly called a Charter-party, executed between the Owners and Merchant, or the Master in the behalf of himself and Owners, or himself Si quis navem conduxerit in­strumenat con­signata sunto, Pekieus Com. ad leg. Rhod. Art. 20. and the Merchant, or between them all.

The Master or Owners generally Covenant to pro­vide a Pylott and all other Officers and Marriners, and all other things necessary for the Voyage; and for the taking in and delivering out of the Lading.

If there be an agreement and earnest, but no writing, Per Leg. Naval. Rhod. Artic. 19. if the same be broke off by the Merchant, he loseth his earnest; but if the Owners or Master repent, they lose double the earnest.

But by the Common Law of England the party damni­fied Mich. 10 Car. in B. R. Lang­don and Stocks case. 1 Cro. fo. 279. Per Leg. item. §. Si in leg. loca. may bring his Action of the Case and recover his damages on the agreement.

If a time is appointed by the Charterparty, and either the Ship is not ready to take in, or the Merchant not ready to lade aboard, the parties are at liberty, and the party damnified hath his remedy against the other by Action, to recompence the detriment.

If part of the Lading be a Shipboard, and it happens some misfortune may overtake the Merchant that he hath not his full Lading aboard at the time, the Master is at liberty to contract with another, and shall have Freight by way of damage for the time that those Goods were aboard after the time limited; for such agreements are of a Conditional nature precedent, a failer as to a com­pleat Lading will determine the same, unless afterwards affirm'd by consent. And though it be no prudence for every Merchant or every Master to depart from the Contract if it should so fall out that the Agreement as to the Lading is not performed according to the Charter­party or Agreement, (seldome ever done if any part be [Page 219] aboard) yet it is the highest Justice, that Ships and Masters should not be infettered but free; for other­wise by the bare lading of a Cask or Bale, they might be defeated of the opportunity of Passage or Season of the year.

So on the other hand, if the Vessel is not ready, the Mich. 10 Car. in B. [...]. Lang­don and Stocks case, Cro. 1. part, 279. Merchant may ship aboard in another Vessel the remain­der of his Goods, and discharge the first Skipper, and recover damages against the Master or Owners for the rest: And this is grounded upon the like reason as the former.

And therefore by the Law Maritime, chance or some Per Leg. si ex conducto & leg. si item fundus & leg. haec distinctio. other notorious necessity will excuse the Master; but then he loseth his Freight till such time as he breaks ground: And till then he sustains the loss of the Ship.

But if the fault be in the Merchant, he then must an­swer Per Leg. Oleron. Cap. 21. the Master and the Ships damage, or else be lyable to entertain the Ships Crew ten dayes at his own Charge; but after that, then the full Freight: and if any damage Artic. 25. Le­gum Navalium, Art. 29. eod. happens afterwards, the Merchant must run the risque of that, and not the Master or Owners. But by the Common Law, so long as the master hath the Goods Rich versus Kneeland, Cro. 2. part. a shipboard he must see them forth-coming.

IV. If Goods are fully laded aboard, and the Ship hath broke ground, the Merchant on consideration after­wards Ad Leg. Rhod. resolves not on the adventure, but will unlade again; by the Law Maritime the Freight seems deser­ved.

But if the Ship in her Voyage becomes unable with­out the Masters fault, or that the Master or Ship be Ar­rested Judg. Oleron. Leg. ult. ad ad Rhod. by some Prince or State in her Voyage, the Master may either mend his Ship, or Freight another.

But if the Merchant will not agree to the same, then Digest. Paulus, l. 14. 2. §. 10. the Freight becomes due for so much as the Ship hath earned: For otherwise the Master is lyable for all da­mage that shall happen. And therefore if that Ship to which the Goods were transladed perish, the Master shall answer; but if both the Ships perish, then is he dis­charged.

[Page 220] But if there be extream necessity, as that the Ship is in a sinking condition, and an empty ship is passing by or at hand, he may translade the Goods; and if that Ship sink or perishes, he is there excused: but then it must be apparent that that Ship seem'd probable and suf­ficient.

V. If a set time be fixed and agreed upon between the Merchant and the Master wherein to begin and Leg. qui Romae [...]. Cllimachus, [...]. de verb. obl. finish his Voyage, it may not be altred by the su­pra Cargo without special Commission for that pur­pose.

If a Master shall weigh Anchor and stand out to his Voyage after the time covenanted or agreed on for his departure, if any damage happens at Sea after that time, he shall refund and make good all such misfor­tune.

If it is agreed that the Master shall sayl from London Ang. Alex. & Jason in di [...]. §. Callimachus. to Leighorne in two moneths, and Freight accordingly is agreed on, if he begins the Voyage within the two months, though he does not arrive at Leighorne within the time, yet the Freight is become due.

VI. If a Ship is Freighted from one Port to another Leg. Relagati ff. de poenis & Leg. ult. ff. de S [...]p. vi [...]. Port, and thence to a third, fourth, and so home to the Port from whence she first sayled, (commonly called a trading Voyage) this is all but one and the same Voy­age, so as it be in conformity to the Charterparty.

A Merchant agrees with a Master, That if he carries his Goods to such a Port, he will then pay him such a Sum; in the Voyage the Ship is assaulted, entred and robb'd by Pyrats, and part of her Lading taken forth, Trin. 9 Jac. in C. B. Rott. 638. Bright versus Cooper, Brownlow 1. part. and afterward the remainder is brought to the Port of discharge, yet the sum agreed upon is not become due; for the Agreement is not by the Master per­formed.

But by the Civil Law this is vis major, or casus for­tuitus, there being no default in the Master or his Mar­riners, and the same is a danger or peril of the Sea, which if not in Navall Agreements exprest, yet is na­turally implyed: For most certain had those goods [Page 221] which the Pyrats carried away in stress of weather, Na­vis levandae causa, been thrown over-board, the same Co. 1. part, 97. Shelley's case. Reniger and Fogassas case. Plowden Com. But a Pyrat is not an Enemy. Vide Chap. Pyracy. Leg. Si quis Cod. de Justit. & substic. would not have made a disability as to the Receipt of the sum agreed on; for by both the Common Law, and the Law Maritime, the act of God, or that of an Ene­my shall no wayes work a wrong in actions pri­vate.

VII. If a Ship be Freighted by the Tun, and she is full laded according to the Charterparty, the Freight is to be paid for the whole; otherwise but for so many Tun as the Lading amounted to.

If Freight be contracted for the Lading of certain Cattle or the like from Dublin to West-Chester, if some of them happen to dye before the Ships arrival at West-Chester; the whole Freight is become due as well for the dead as the living.

But if the Freight be contracted for the Transporting Arg. Leg. Ssite ff. de annis le­gatis & leg. illis libertis i [...] fin. ff. do con­dit, & demon. Arg. 7. Leg. qui ope­ras & leg. fi­aedes §. cum quidam & §. [...]n. ff. locati. Leg. sed & ad­des in §. Si quis mulirem [...] ▪ locat. them, if death happens, there arises due no more Freight then onely for such as are living at the Ships arrival at her Port of discharge, and not for the dead.

If the Cattle or Slaves are sent aboard, and no agree­ment is made either for lading or transporting them, but generally, then Freight shall be paid as well for the dead as the living.

If Freight be contracted for the transporting of Wo­men, and they happen in the Voyage to be delivered of Children on Ship-board, no Freight becomes due for the Infants.

The Charterparty does settle the Agreement, and the Bills of Lading the contents of the Cargo, and binds There are 3. Bills of Lading alwayes made, the one to be sent over Se [...] to him to whom the Goods are consigned to, the other for the Master, and the last for the Merchant or Lader. the Master to deliver them well conditioned at the place of discharge according to the contents of the Charterparty or Agreement; and for performance, the Master obliges himself, Ship, Tackle and Furniture to see the same done and performed.

If Goods are sent aboard generally, the Freight must be according to Freight for the like accustomed Voy­ages.

If a Ship shall be Freighted and named to be of such a Burden, and being Freighted by the Tun shall be found less, there shall no more be paid than onely by [Page 222] the Tun for all such Goods as were laded aboard.

If a Ship be Freighted for two hundred Tuns or thereabouts, the addition of thereabouts, is commonly reduced to be within 5. Tun more or less, as the moiety of the number Ten, whereof the whole number is com­pounded.

If a Ship be Freighted by the great, and the burden of it is not exprest, yet the sum certain is to be paid.

VIII. If the Ship by reason of any fault arising from the Freighter, as lading aboard prohibited or un­lawful Leg. penult. §. novem F. de lo­cat. Commodities, occasions a detention, or other­wise impedes the Ships Voyage, he shall answer the Freight contracted and agreed for.

If a Ship be Freighted out and in, there arises due Trin. 9 Jae. B. R. Bright versus Cowper, Brownlow, 1. part. for Freight nothing till the whole Voyage be perform­ed. So that if the Ship dye or is cast away coming home, the Freight outwards as well as inwards be­comes lost.

IX. If a Master Freights out his Ship, and afterwards Leg. Oleroon. Leg. Naval. Rhod. Art. 25. secretly takes in other Goods unknown to the first La­ders, by the Law Maritime he loses his Freight; and if it should so fall out that any of the Freighters Goods should for safety of the Ship be cast over-board, the rest shall not become subject to the Averidge, but the Ma­ster must make good that out of his own purse: But if the Goods are brought into the Ship secretly against his knowledge, it is otherwise; and Goods so brought in, the same may be subjected to what Freight the Master thinks fitting. Consol. del Mere.

If the Ship puts in to any other Port then what she was Freighted to, the Master shall answer damage to the Merchant; but if forc'd in by storm, or by Enemy, or Leg. Oleroon. Pyrats, he then must sayl to the Port conditioned at his own costs.

Generally the touching at several Ports by agree­ment, imports not a diversity, but a Voyage entire.

X. If Passengers having Goods happen to decease a Ship-board, the Master is to inventory their concerns, and the same may a year keep; and if none claym the [Page 223] same, the Master becomes Proprietor defeazeable: but the Bedding and Furniture of the parties become the Master and his Mates, and the clothing are to be brought to the Ship-Mast head, and there praised and distri­buted Leg. Consolat, del Mar. amongst the crew, as a reward for their care of seeing the body put into the Sea.

XI. The Lading of the Ship in construction of Law Bald. in leg. certi juris in 4. Q. in verb. Quid ergo Cod. locat. is tacitly obliged for the Freight, the same being in point of payment preferred before any other Debts to which the Goods so laden are lyable, though such Debts as to time were precedent to the Freight; for the Goods re­main as it were bayled for the same: nor can they be At­tached in the Masters hands (though vulgarly is concei­ved otherwise.)

Ships deserve wages like unto a Labourer, and there­fore in the eye of the Law the actions touching the same are generally construed favourably for the Ship and her Owners: And therefore if 4. part Owners of 5. shall make up their Accounts with the Freighters and Hill. 26, 27 Car. 2. in B. R. Stanley versus Ayles. 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 7 R. 2. Statham Abridg. 54. 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 In Jurae Post­liminij leg. retor'. & leg. in bello §. 1. 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 bovce versus Cole [...]' & Cole jun', Hill' 26, 27 Car. 2. in B. R. 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 [Page 224] 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 When such a misfortune happens, the Ensured com­mōly transfer those Goods over to the As [...]urors who take them to­wards satisfa­ction of what they pay by vertue of their subscriptions. 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 Co. 4. Inst. 146. 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 Johannes Loci­nius lib. 3. Cap. 8. 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 [Page 225] 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 Scudamore & al' versus Pit­man. Trin. 29 Eliz. in B. R. cited in Co. 2. Inst. fo. 673. 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 L. ne quid ff. de incendio ruina & naufragio. 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 Leg. 44. D. de adq. ver. dom. who was the owner thereof, and discend upon his Suc­cessor; neither Escheat to the King, neither to any other to whom the King hath granted such Royal Pri­viledge.

[Page 227] The reason why the Laws were so strictly declared by the Romans, was, for by the Lawes of Rhodes, if any Ship had become Wreck, though all the persons were saved and alive, yet the Ship and Goods became seizeable by the Lords: But the same being Barbarous, was afterward repealed and abrogated as well by those Emperours in their Territories, as here in England; the first by the Judgment of Oleron, which provided in such Per le Judg­ment Oleron, Cap. 26, & 47. misfortune, That if the Merchant, Marriners or Mer­chants, or any of these escape and come safe to Land, the same was not to be accounted Wreck.

The Emperour Constantine the Great sayes in this case, if any Ship at any time by any Shipwreck be driven unto the shoare, or touch at any land, Let the Owner Leg. 1. lib. 11. C. de Naufra­gijs. have it, and let not my Exchequer meddle with it: for what right hath my Exchequer in another mans Calamity, so that it should hunt after gain in such a woful case as this is?

And yet if no Kindred appear within a year and a day, and appearing prove not the Goods shipwracked to be theirs, the Goods come to the Exchequer even by that Law: So much that Law condemns carelesness, which is written, vigilantibus & non dormientibus. And with this agrees the Laws of Oleron, and the Lawes of this Land, as taken out of those Imperial Laws, in that Point, as is conceived.

II. The Civil Law was ever so curious and careful of the preserving the Goods of such miserable persons, Leg. 1. in pr. de incend. ruin. leg. in eum cum auth. seq. de surt. that if any should steal such, they should pay four-fold to the Owner, if pursued within a year and a day; and as much to the Prince or his Admiral: So carefully were, and so exact in requiring restitution, that the very steal­ing Leg. 3. in sin. de incend. ru. nauf. of a Nayl or the worth thereof, obliged the Thief to the restitution of all the remaining Goods. And by the Emperour Antonius it was made a Law for such sort of men, that they should be batten'd and banish'd for 3. years; but that was onely for those of a high and Leg. pedibus cod. Honourable rank: but those that were base and igno­ble, should be scourged and sent to the Gallies, or Me­tal Mines.

[Page 228] And the preventing of help to such shipwrackt per­sons Arg. leg. suc­curlarij de Extrod. Crim. was punisht with the same suffering as a Mur­therer.

The like for those that shall put forth any Treache­rous Lanthorn or Light, with intention to subject them to danger or shipwrack, was punish'd with death.

And though no harm happens, yet he may be punish­ed: Per leg. incend. ruin. Naufrag. Leg. ne piscator. hence it is that Fishers are forbidden to Fish with Lights in the Night, for fear of betraying of Say­lors. And here I cannot omit the Great and Pious Care that His Majestie hath had in his Directions about Light-Houses and Lanthorns, and other special Sea-Marks; but more especially in his Erecting at his own Princely Charge that most excellent Light-House near Goldston by Yarmouth, which both for Height, Curiosity and Form, not inferiour if not excelling all or most in Christendome.

But this good Law does not extend to Pyrats, Rob­bers, Sea-Rovers, Turks, or other Enemies to the Catho­lique Per Leg. Oleron Cap. 47. Faith.

Where a man, Dogg or Catt escapes alive out of the Ship, neither the Ship or other Vessel, nor any thing therein shall be adjudged Wreck, but the Goods shall be saved and kept by the Sheriff, Coroners, or the Kings Bayliffs, and delivered to the Inhabitants of the Town where the Goods are found; so that if any within a year and a day sue for those Goods, and after prove that they were his at the time of the shipwrack, they Westm. 1. c. 4. § E. 1. Naufragia ad publicanos pertinento. shall be restored to him without delay: but if not, they shall be seized by the said Sheriff, Coroners or Bayliffs for the Kings use, and shall be delivered to the Inhabi­tants of the Town, who shall answer before the Justices for the Wreck belonging to the King.

Where the Wreck belongs to another he shall have it in like manner, and if any be attainted to have done otherwise, he shall suffer Imprisonment, make Fine to the King, and yield damage also.

If a Bayliff do it, and it be disallowed by his Lord, the Bayliff shall answer for it if he have wherewithall; but if not, the Lord shall deliver his Bayliffs Body to the King.

[Page 229] The Lawes of Normandy agrees with this Law. Custm. Norm. Cap. 17.

IV. If the Ship perishes onely, and the Goods are safe, in that case the Goods ought to pay a proportion 37 Leg. Naval. Rhod. & 40. of a 5th or 10th penny, according to the easie or diffi­cult winning or saving of the said Goods; Rich Goods, as Gold and Silver, and Silk, pay less than Goods of great weight and cumber, being in less danger, unless it were a Wreck going into a Port, for which the Skip­per was not bound for, there è contra, then the Skipper is not to be considered.

V. The King shall have Wreck of the Sea Whales, and great Sturgeons taken in the Sea and elsewhere throughout the whole Realm, except in places privi­ledged by the King.

VI. By the grant of Wreck will pass Flotsam, Jet­sam, and Lagan, when they are cast upon the land; but Sir Henry Con­stables case, Coke 5. part, fo. 107. if they are not cast upon the land, the Admiral hath Jurisdiction and not the Common Law, and they can­not be said Wreck.

Wreccum Maris, are such Goods onely as are cast and left upon the land by the Sea.

Flotsam, is when a Ship is sunk or otherwise perish­ed, Faber & alij inst. de rer. divis. Sect. pen. and the Goods float upon the Sea.

Jetsam, is when the Ship is in danger to be sunk, and for lightning the Ship, the Goods are cast into the Sea, notwithstanding which the Ship perisheth.

Lagan vel Ligan, is when the Goods which are so cast into the Sea before the Ship perishes, being heavy, Leg. 7. D. pro derelicto. are by the prudence of the Master or Marriners, who have an intent to save them so sunk; as that they may come at them again, in order to which they fasten a Buoy or other light matter that may signifie to them where they lye, if providence should bring them in a Condition to retake them.

The King shall have Flotsam, Jetsam and Lagan when 46 E. 3. 15. F. N. B. 112. Anth. Omnes peregrini com­munia de suc­cessionibus ac. per Leg. Oleron. the Ship perisheth, or when the Owners of the Goods are not known; but when the Ship perisheth not, è contra.

[Page 230] A man may have Flotsam and Jetsam by the Kings Grant, and may have Flotsam within the high and low Water-mark by prescription, as it appears by those of Co. 5. part, 107. the West Countries who prescribe to have Wreck in the Sea, so far as they may see a Humber Barrel.

VII. If a Ship be ready to perish, and all the men therein for safeguard of their lives leave the Ship, and af­ter Co. 2. Inst. 167. the forsaken Ship perisheth, if any of the men be sa­ved Leg. 8. D. ad leg. Rhod. de jactu. and come to land, the Goods are not lost.

A Ship on the Sea was pursued with Enemies, the men for safeguard of their lives forsake the Ship, the Enemies take the Ship and spoyl her of her Goods and Tackle, and turn her to Sea; by stress of weather she is cast on land, where it happened her men arrived: It was S R. 2. Pro Willielmo Fishlake. Co. 2. Inst. 167. Leg. 43. §. 11. D. de surt. Resolved by all the Judges of England, That the Ship was no Wreck, nor lost.

VIII. If Goods are cast up as Wreck, and it falls out they be bona peritura, the Sheriff may sell them within Pl. Com. 466. the year, and the sale is good; but he must account to the true Owners.

Owners clayming the Wreck must make 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 F. N. B. fo. 12. 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 DD. diplo. & de Off. Admir. 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 Left unresol­ved in Moore, fo. 24. But since adjudg­ed Trin. 24 Car. in C. B. upon a Special Verdict found at St. Edmonds-Bury in Suffolk. Lord having power, takes them, he shall not pay Cu­stome.

[Page 231] The Admirals of England, ut magnus Admirallus; Angliae, Hiberniae, Walliae, ac Dominiorum & Insularum earundem Villae Calisiae & Merchiarum ejusdem nec non The very words of the Lord Howard's Patent, in 28 Eliz. in Rott. Admir. m. 10. 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 1 E. 2. m. 6. num. 6. 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 Pat. 20 E. 2. m. 10. intus pro Edwardo fil. Regis. 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 wreckn̄ maris Pertinens ad dictum Inquisitiones de Anno 47 H. 3. num. 32. Castrum valet ꝑ ann̄ 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 Leg. 3. §. [...]. D. Naut. Caup. St. l. 1. §. 4. D. de obl. & act. leg. 26. §. 6. D. mand. 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. Quia vis ma­jor providen­tiam & industriam humanam superat, nesi culpa casum praecesserit.

CHAP. VI. Of Averidges and Contributions.

  • I. Of Goods and Merchandize when subject to be cast over­board.
  • 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 Leg. Rhod. de jact'. 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.

[Page 233] If there be a super Cargoe, a request ought to be made Leg. Oleron. Cap. 8. to him to begin first; but if he refuses, the Marriners may proceed.

II. If the Ship so fortunes as to out-weather the Leg. Consolate del Mare. 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 Leg. Wisbicens. Artic. 38, 39. or places they arrive at.

III. King William the Conquerour, and Henry the First, made and ratified, this Law concerning Goods cast over­board Leges Guliel. 1. & H. 1. c. 98. de pactis ad legem Rhodiam. 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 Selden ad Ead­merum & Notae & Spici legium fo. 183. Whelock de Priscis Anglo­rum legibus, fo. 167. 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 Leg. 1. & 2. ad leg. Rhod. & leg. Oleron. 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 over­board. Leg. Wisbicens. Artic. 20, 21.

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 [Page 234] Master or Owners of the Vessel, the Defendant may 12 Jac. in B. R. Bulstrod. 2 part, 290. Bird ver­sus Astcot. 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 Leg. 1. ff. de exercitoria action. 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 L. amissae & Oleron. Tow-Anchor or Boat.

This Order is observed generally in the rating the remainder of the Goods by way of Contribution. Johannes Loci­nius lib. 2. cap. 7. de jactu. & 8. de con­tributione.

If they chance to be cast over-board before half the Voyage performed, then they are to be esteemed at the price they cost; if after, then at the price as the rest or the like shall be sold at the place of discharge.

VII. As the Common Law looks upon the Goods and Cargo as a pawn or pledge for the Freight, so the Leg. 1. de Del mal. except. & leg. Si non sor­tem de cond. in de. Maritime Law looks upon them likewise as a security for the answering the Averidge and Contribution, and that the Master ought not to deliver the Goods till the Contribution is settled; the same being tacitly obliged for the one as well as the other. Ad leg. Rhod. l. 2. Si non conservatis.

VIII. If through the rifling of the Ship, or the casting or unlightning the Ship, any of the remaining Leg. Navis 4. ad leg. Rhod. And Vinius Commentary, fo. 235. Goods are spoyled either with wet or otherwise, the same must come in to the Contribution for so much as they are made worse.

IX. If it falls out that a Ship entring into a Port or Channel cannot make way, and there be a lightning or disburdning of the Ship, then the Contribution falls Leg. 9. §. 3. ad exhib. two parts to the Lading, and one third to the Ship, except the Ship surpass in value the Lading, or that there is some bad quality in the Ship it self.

But to prevent that ambiguous Question, if the par­ty [Page 235] Covenants that the Goods shall be delivered at the L. 1. verse. quod convenit depos. Port. Covenanted and appointed, then Condition makes Law.

So for the Pylotts Fee and raising of the Ship off ground when there is no fault in the Master.

X. If two Ships happen to encounter and Cross each Leg. quem ad modum parag. Si navis ad leg. Aquiliae. other, and the Crew swear their Innocency, Contribu­tion must be made by a just equality; but if one pe­rishes, then can there be no proportion of the loss, so no Contribution. The reason that is given, for that otherwise a Skipper might of purpose set an old weak Ship against a strong Ship, and by that means hedge himself into a Contribution and recompence. How­ever, this barrs not the Owners from bringing their Action against the negligent Master, by which means Eod. Leg. 18 H. 6. num. 52. he may recoope himself in damage, if it happens at Sea, the Action by the Civil Law is called Legis Aqui­lae. 3. Inst. fo. 146. Goodwyn ver­sus Tompkins, Noy Rep.

If such a misfortune happens in the Night at Sea, the party if he will compleatly arm himself for his re­covery, ought to prove, that he made out Light or Fire, or otherwayes gave notice by crying or calling out.

XI. If it falls out the Ship or Vessel by the in­discreet Lusi Sernus 27. §. & Si. 23. ad leg. Aquil. Stowing or Lading the Ship above the Birth­mark such ejection happen'd, in that case it has been used by the Maritime Lawes no Contribution to be made, but Satisfaction is to be answered by the Ship, Master or Owners.

XII. If to avoid the danger of a Storm, the Ma­ster cuts down the Masts and Sayls, and they falling Ad Reg. Rhod. leg. 2. §. Si conservatis. into the Sea are lost, this damage is to be made good by Ship and Lading pro rata: otherwise if the case hap­pens by storm or other Casualties.

No Contribution is to be paid in case one Ship strike against another whereby damage happens, but full Satisfaction is to be answered the Merchant in case of fault or miscarriage in either; or an equal di­vision [Page 236] of the damage, in case it happen by a Casual­ty, as above.

If a Lighter or Skiff, or the Ships Boat into which part of the Cargo is unladen for the lightning of the F. de leg. Rhod. leg. Navis [...]nustae. leg. Na­vis. ad leg. Rhod. de Jactu. Sir Francis Moore, fo. 297. Ship perish, and the Ship be preserved, in that case Contribution is to be made; but if the Ship be cast away, and the Lighter, Boat or Skiff be preserved, there no Contribution or Averidge is to be had, it being a Rule, No Contribution but where the Ship Arrives in Safety.

XIII. If a Ship happens to be taken, and the Master to redeem the Ship and Lading out of the Ene­mies Leg. Rhod. de Jactu, l. 2. Si Navis a Pyra­tis. or Pyrats hands, promises them a certain sum of money, for performance whereof himself becomes a Pledge or Captive in the Custody of the Captor; in this case he is to be redeemed at the costs and charges of the Ship and Lading, and Money if there be any in her, are contributory according to each mans interest for his ransome.

So where a Pyrat takes part of the Goods to spare the rest, Contribution must be paid. Moore 297. plt' 442. Hicks versus Palling­ton.

But if a Pyrat takes by violence part of the Goods, the rest are not subject to Average, unless the Mer­chant hath made an express agreement to pay it after the Ship is robb'd. Grotius de In­trod. jure. Holl. part. 29. Suetonius. jure Naut. in the end of the 13. Chapter.

But if part of the Goods are taken by an Enemy, or by Letters of Marque and Reprizal, è contra.

So likewise in storm, if the same is done for preser­vation of the remainder.

XIV. In Ejectment the Master or Purser of the Ship shall contribute for the preservation of the Ship, and also the Passengers for such Ware as they have in the ship, be it Pearls, Pretious Stones, and such like; and Passengers that have no Wares or Goods in the ship, yet in regard they are a burthen to the ship, Esti­mate is to be made of his and their Apparel, Rings and Jewels, towards a contribution of the loss; and ge­nerally all things in the ship except the Victualling and Provisions of the ship, and the bodies of men (unless [Page 237] Servants) must bear a proportionable share in the Con­tribution.

The Estimate being made of the Goods lost and sa­ved, the price is to be set down not for how much they were bought, but how much they might be sold, at the time when the Ejectment was made; and if any Peckeus ad leg. Rhod. de jact. fo. 196, 197, 198. thing be flung into the Sea and endamaged, and after­wards is recovered again, yet contribution is to be made onely for the damage.

XV. Contribution is to be paid for the Pylot's Fee that hath brought a Ship into a Port or Haven for her safeguard, (it being not the place she was designed for) so to raise her off the ground when there is no fault in the Master.

If a Master of a Ship lets out his Ship to Freight, and then receives his compliment, and afterwards takes in Grotius Introd. jur. Holl. 3. 29. Vinius and Pekeus Com­mentaries on the Lawes of Rhodes, 236. Goods without leave of the Freighters; and a Storm arises at Sea, and part of the Freighters Goods are cast overboard, the remaining Goods are not subject to the Averidge, but the Master must make good the loss out of his own purse.

The Goods which are lost are to be valued, then the Goods saved are to be estimated, which being known, a proportionable value is to be contributed by the goods saved, towards reparation of the goods ejected, or cast overboard.

In which regard is alwayes had, not to what might be got by the Goods lost, but what the intrinsick da­mage Locinus lib. 2. Chap. 8, 9, 10, 11. is by the loss of the same; the which are not to be estimated what they might have been sold for, as what they cost or were bought for.

But now the Custome is general, the Goods saved The Custome of Places va­ries this Modus of Estimating; the which is done by Mer­chants and Marriners in­differently nominated by the Court. and lost, are estimated according as the Goods saved were sold for; Freight and other necessary charges be­ing first deducted.

If there were Plate, Jewels or the like in a Trunk, Chest, Pack or Bale, at the time of their Ejection, if there be a super Cargoe he ought to give notice by dis­covering of the same to the Master or Marriners, other­wise he shall be answered in the Contribution no more [Page 236] [...] [Page 237] [...] [Page 238] then the bare extrinsick value appeared to be; but the Ad Leg. Rhod. §. ult. Inst. de rer. divis. & leg. 9. §. ult. de ac (que) rer. Dom. Assurors will hardly fare so well.

If Contribution shall be setled, and the Merchant will not agree, the Master may detain the Lading, for the same is as tacitly obliged to answer that as the Freight; And if at the Common Law the Merchant should bring an Action, the Defendant shall barr him by pleading the special matter.

If Goods are cast overboard, and afterwards are re­covered; ff. Ibid. leg. Navis, §. cum autem. Contribution ceases, saving for so much as they are damnified and made worse by reason of such Ejectment.

Note, Goods cast overboard to lighten the ship make Leg. 25. D. de prob. leg. falsus §. Si jactum. D. de surt. no derelict.

And though such necessity seems to subject the La­ding to Ejectment to prevent the ruine and destruction of the persons, yet some Lading seems excepted, and therefore Canon and other Instruments or Provisions Bacon Max. fo. 17. privile­gium non valet contra rem pub­licam. consigned to relieve a City, ought not to be flung over­board; for in such case the Law imposeth on every subject, that he prefer the urgent Service of his Prince, before the safety of his life.

CHAP. VII. Of Pollicies of Assurance.

  • I. Assurances by whom first intro­duced.
  • II. Assurances the nature of them.
  • III. How esteemed of by Law.
  • IV. The various wayes of Ensure­ing, and on what.
  • V. Assurance when esteemed most dangerous, and of fraudulent Pollicies.
  • VI. Of the Receipt of Preimio, and the custome of abatement on losses.
  • VII. Pollicies that now ensure against all the Accidents of Hea­ven and Earth.
  • VIII. A Ship Ensured generally, whether the same includes the Cargoe; and whether it is neces­sary in the Pollicy to mention the particular Goods.
  • IX. If the Master is discharged of the damage, whether the En­surer may be made lyable.
  • X. A Ship Ensured from a Port, and she is burnt before her depar­ture, whether the Assurers are made lyable.
  • XI. Goods Ensured in one Ship, are afterwards in the Voyage put into another, the second mis­carries, whether the Assurors are made lyable.
  • XII. A man Ensures more than the value of the Cargo, the Cu­stome in such case.
  • XIII. A Ship is Ensured from one Port to another, and there to be landed; the Cargoe after ar­rival is sold, and before landing is burnt, whether the Assurors shall be made answerable.
  • XIV. A Ship Ensured from one Port to (blanck) being in time of Warr) taken, whether the Assurors shall answer.
  • XV. Of the Ensureds renouncing after a loss; and what opera­tion the same has by Custome.
  • XVI. Of the Office erected by the Statute of 43 Eliz. what power; of the Jurisdictions claymed by those at Common Law and the Admiralty.
  • XVII. What power and authori­ty was given by the Statute of 43 Eliz. to that Court.
  • XVIII. What things it was de­ficient in: and holpen by the Statute of 14 Car. 3. cap. 23. and of their authority and power general at this day.
  • XIX. Of the advantage [...] that seem to accrew to publique Assu­rances, different from privat [...] ones.

IT is conceived by Suetonius, that Claudius Caesar was the first that brought in this Custome of Assurance, In vita Claud. Caesar, lib. 25. c. 18. by which the Danger and Adventure of Voyages is di­vided, repaired and born by many persons, who for a certain sum by the Spaniard called Premio, assure Ship or [Page 240] Goods, or both, or a proportion, according as the Pol­licy is. Leg. 1. ff. qui Salisd. cog. Grotius de jure Be [...]i ac Pacis, lib. 2. cap. 12. §. 3. in fin.

II. Assurances are either publique or private; Pub­lique, when they are made and entred in a certain Of­fice or Court, commonly called the Office of Assurance in the Royal Exchange in London; and the same are called publique, for that it is free for any man to resort and see what another hath assured upon his Adventure.

Private is, when an Assurance is made, but the Ensu­red keeps the same secret, not deeming it fit that any should see or know their Cargoe or Adventure, or what Premio they have given, or assurance they have made; and the same being never entred in the Office, is known by the name of a Private Assurance.

III. By the Common Law they are both of the same validity, as in reference to obtain Satisfaction from the Ensurors, if loss or damage should happen to the Ad­venture.

But by the proceedings erected by Statute of 43 Eliz. 43 Eliz. cap. 12. Cap. 12. onely those that are entred in the Office of that Court, can be sued or determined there.

IV. Assurances are of various sorts, some being to places certain, others general; those that are made to places certain, are commonly upon Goods laden or to Leg. 4. 5. D. de Naut. saen. be laden aboard outward, and untill the same Adven­ture shall be laid ashoare at such a Port.

Or upon Goods laden or to be laden homeward in such a Ship till the Adventure shall likewise be landed.

Or else upon Goods out and in, with liberty to touch Johannes Loci­nius, lib. 2. cap. 5. §. 5, 6. at such Ports as are mentioned in the Pollicy.

So likewise on Ships that go Trading Voyages, as Round to Cales; and that it shall be lawful after the Ships delivery there, to take in at the same Port another Cargoe, and with that proceed to the West-Indies or other parts, and back again to Cales, and from thence to London, this Pollicy being general and dangerous, pro­cures seldome subscriptions.

As Goods and Merchandize are commonly Ensured, so likewise are the Ships Tackle and Furniture; but in Saut [...]r. p. 3. num. 13. seq. 43. Seq [...]. regard there seldome happens a Voyage but somewhat [Page 241] is missing or lost, the Premio commonly runs higher then for Merchandize.

Assurances may be made on Goods sent by land, so likewise on Hoyes and the like.

V. Those Assurances are most dangerous when there If such Ensu­rance be made in the Office, they then set down the hour when intima­tion is given of the loss. are these words inserted lost or not lost; which is com­monly done when a Ship hath been long missing and no tydings can be had, the Premio especially in time of Warr will run very high, sometimes 30 or 40 per Cent'; and though it happens at the time that the subscription is made the ship is cast away, yet the Assurers must an­swer.

But if the party that caused the Assurance to be made Locinius, lib. 2. cap. 5. §. 9, 9, 10. saw the Ship wreckt, or had certain intelligence, such subscription will not oblige, the same being accounted a meer fraud.

So likewise if the Assured having a rotten Vessel shall assure upon the same more then she is worth, and after­wards Arthur Stock­den of Stock­den's Case, Mich. 26 Car. 2. in B. R. Afterward convicted by Information for the Fraud, Term. Sancti Hillarij sequen. in B. R. Vide Livins, lib. 25. give order that going out of the Port she should be sunk or wreckt; this will be fraudulent, and not ob­lige the Assurors to answer.

VI. Few or scarce any Ensure the whole Ship, but the Subscriptions being for Sums certain, as 50 l. or The Subscrip­tion mentions as if the Pre­mio had been actually re­ceived, but it is seldome done till the adventure is bourn. 500 l. at the Premio then current, which when the Ad­venture is born they receive; but if a loss happens, the Premio is deducted together with the usual abatemate: so that the Ensured receive much about 80 per Cent. if a loss happens.

VII. The Pollicyes now adayes are so large, that almost all those curious Questions that former Ages and the Civilians according to the Law Maritime, nay and the Common Lawyers too, have controverted, are now Ut quae in na­ves imposs [...]is­sent, ab hostium tempestatis (que) vi publico periculo essent. Negotia toribud certa lucra proposuit suscepto in se damno, si cui quid per tempestates accidisset, Livins, lib. 23. c. 25. Vide Zasius in Commentario ad Digesta, tit. pro Socio. n. 25. out of debate; scarce any misfortune that can happen, or provision to be made, but the same is taken care for in the Pollicyes that are now used; for they Ensure against [Page 242] Heaven and Earth, Stress of Weather, Storms, Ene­mies, Pyrats, Rovers, &c. or whatsoever detriment shall happen Sub nomine periculi, de quo fit cautio, com­prehenditur omnis casus qui accidit in mari, à tempestate, ab hostibus, praedonibus, Repraesalis ut, vocant arrest is alijs (que) modis usitatis & inusitatis citra fraudem & culpam contrahentium, aut domini mercium vel navis. Grotius de jure Holl. part. 24. or come to the thing Ensured, &c. is provided for.

VIII. If a Merchant Ensures such a Ship generally, Iocinius, lib. 2. cap. 5. §. 7, 9, 10. and in the Pollicy it is expressed of such a Burthen, the Ship happens then to be loaden and after miscarries, the Ensurer shall not answer for the Goods, but onely for the Ship.

It matters not in the Pollicy whether the particular Wares and Goods are named, but generally upon the principal Wares, and all other Commodities laden or to be laden for the Ensured or for his account, or for any other.

X. If a Ship be Ensured from the Port of London to Cales, and before the Ship breaks ground takes fire, and is burnt, the Assurors in such case shall not answer, for the Adventure begun not till the Ship was gone from the Port of London; but if the words had been, at and from the Port of London; there they would upon such a misfortune have been made lyable.

If such an Assurance had been from London to Cales, Note, The Port of London ex­tends from the North Foreland in the Isle of Thanet, over in a Line to the Nase in Essex, and from thence to London-Bridge. R [...]tulo. Scaccarij 19 Car. 2. and the Ship had broke ground, and afterwards been driven by storm back to the Port of London, and there had took fire, the Ensurers must have answered; for the very breaking of ground from the Port of London was an inception of the Voyage.

XI. If Goods are Ensured in such a Ship, and af­terwards That has been much doubt­ed; and opi­nions of the Court hath generally en­clined against the Assurors. Leg. ult. ad Rhod. Digest. Paulus. l. 14. tit. 2. §. 10 in the Voyage it happens she becomes leaky and creazy, and the super Cargoe and Master by consent become Freighters of another Vessel for the safe delivery of the Goods; and then after her relading the second Vessel miscarries, the Assurors are discharged: But if there be these words, The Goods laden to be transported and delivered at such a place by the said Ship, or by any other Ship or Vessel untill they be safely landed, then the Ensurers must answer the misfortune.

[Page 243] XII. If a man Ensures 5000 l. worth of Goods, and he hath but 2000 l. remitted, now he having en­sured Vide Grotius Introd. jur. Holl. 212. 23. And indeed is more the Custome of Merchants then Law. the real Adventure, by the Law Maritime all the Assurors must answer pro rata. But by the opinion of some, onely those first Subscribers who underwrit so much as the real Adventure amounted to, are to be made lyable, and the rest remitting their Premio 10 s. per Cent. deducted out of the same for their subscriptions, are to be discharged.

XIII. A Merchant Ensures his Goods from London Locinius lib. [...]. cap. 5 §. 9. And by the Lawes of Antwerp there is a time allotted after the Ships arri­val at her Port how long the adventure is, to be born by the Ensurers, which is about 15 dayes, Art. 13. Assecur-Antwerp. to Sally, and there to be Landed; the Factor after ar­rival having opportunity sells the Cargo aboard the same Ship without ever unlading her, and the buyer agrees for the Freight of those Goods for the Port of Venice; before she breaks ground, the Ships takes fire, the Assured is absolutely without remedy; for the pro­perty of the Goods becoming changed, and Freight being contracted de novo, the same was as much as if the Goods had been landed.

And so it is if the Factor after her arrival had con­tracted for the Freight to another Port, and the Ship had happened to take fire, the Assurors are hereby ab­solutely discharged for ever.

XIV. If a Ship be Ensured from London to and blanck being so left of purpose by the Lader to pre­vent Case of Mon­sieur Gourda [...]. Governour of Calais. Anno 1585. her surprize by the Enemy, in her Voyage she hap­pens to be cast away, though there be private Instructi­ons for her Port, yet the Ensured sit down by the loss by reason of the uncertainty.

XV. After notice of loss, the Ensured, (if he doth think fit) for that he hath Ensured the most of his Ad­venture, Locinius, lib. 2. cap. 5. §. 8. or that he would have the assistance of the As­surors; when there is hope of Recovery of the Adven­ture, he may then make a Renunciation of the Lading to the Assurors, then he comes in himself in the nature of an Ensurer, for so much as shall appear he hath born the Adventure of beyond the value Ensured.

[Page 244] But if the Merchant shall not renounce, yet there is a power given in the Pollicy for him to travail, pursue and endeavour a recovery (if possible) of the Adventure after a misfortune to which the Assurors are to contri­bute, the same being but a trouble to give ease to the As­sours.

If prohibited Goods are laden aboard, and the Mer­chant ensures upon the general pollicy, which alwayes contains these words; Of the Seas, Men of Warr, Fire, Enemies, Pyrats, Rovers, Theeves, Jettezons, Letters of Mart, and Covenants, Arrests, Restrainment and Detain­ments of Kings and Princes, and of all other persons, Bar­ratry of the Master and Marriners, and of all other perils, loss [...]s and misfortunes whatsoever they be, and howsoever they shall happen or come, to the hurt and detriment of the Goods and Merchandize, or any part and parcel thereof; whether if such Goods be lawfully seized as prohibited Sub nomine pe­riculi, de quo fit [...]autio, com­prehenditur omnis cas [...]s qui accidit in mari, a tempestate, ab hostibus praedo­nibus reprisa­lijs ut vocant arrestis alijs [...]; modis usit [...]is citra fra [...]em, & culpam con­trathentium aut domini mercium vel navis. Gro­tius de introd. jur. Holl. par. 24. In hoc contractu bona fide versandum est, ut natura ultr [...] citro (que) obligatiodis postulat. Locinius, lib. 2. cap. 5. §. 8. goods, the Ensurors ought to answer? It is conceived they ought not; and the difference hath been taken, where Goods are lawful at the time of Lading to be imported into that Country for which they are consign­ed for, but by matter ex post facto after the lading they become unlawful, and after arrival are seized, there the Assurors must answer, by virtue of the Clause, And all other perils, &c. But if the Goods were at the time of lading unlawful, and the Lader knew of the same, such Assurance will not oblige the Assurors to answer the loss; for the same is not such an Assurance as the Law supports, but is a fraudulent one.

So it is if a Merchant will Freight out Wooll, Lea­ther, 12 Car. 2. cap. 32. 14 Car. 2. cap. [...], 18. and the like, or send out Goods in a Forraign bottome 12 Car. 2. cap. 18. and then make a Pollicy, the Ship happens afterwards to be taken, by reason of which there be­comes a forfeiture of Ship and Lading; the Ensurers are not made subject to answer the damage: for the very Foundation was illegal, and the Law supports only those Assurances that are made bona fide; for if otherwise, and men could be Ensured against such [Page 245] actions, they would destroy Trade, which is directly to thwart the institution and true intentions of all Pol­licyes.

But if Goods should happen to be lawfully Ensured, and afterwards the Vessel becomes disabled, by reason of which they relade by consent of the super Cargoe or Merchant into another Vessel; and that Vessel, after Ritter [...]hus. ad leg. contractus 23. de Reg. jur. cap. 18. pag. 236, 237. Stypman dicto loco num. 335. arrival, proves the Ship of an Enemy, by reason of which the Ship becomes subject to seizure: yet in this case the Ensurors shall answer, for that this is such an accident as is within the intention of the Pollicy.

Several men lade aboard Salt, without distinction, not putting them in Sacks, and the like; the Ship ar­rives, the Master delivers to their Principals according to their Bills of Lading as they come one by one, it falls out that some of the Salt is w [...]sht or lost by reason of Hill. 11 Jac. in C. B. Las [...]low and Tomlinsons Case, Hobart 88. the dampness of the Ship, and that the two last men cannot receive their proportion: There are in this case these things to be considered:

  • 1. Whether the Master is bound to deliver the exact quantity?
  • 2. Whether those that have received this loss can charge the Assurors?
  • 3. Whether the Assurors can bring in the first men for a contribution, they having their Salt deli­vered to them compleatly.

Certainly the Master is not bound to deliver the exact Inst. in pr. quib. mod. re. con­trab. ob. te. l. 2. Si cert. peti. quantity, nor is he obliged to redeliver thev ery specifi­cal Salt, but onely as men are to repay Money or Corn by the distinction in a Bagg or Sack, and out of them; but if the fault was in not pumping, keeping dry his Leg. quod con­venit de ver [...]. ob. Deck, and the like, there è contra: though perhaps there may be special agreement.

Besides, this is a peril of the Sea against which the Master could not prevent, and of necessity he must de­liver to one first before another.

As to the second, It is no question but that the Assu­rors shall answer. But whether they shall bring in the first men for contribution, may be some doubt.

[Page 246] It has been conceived by some, that they ought not, for they delivered their Salt to the Master tanquam in Creditum, and was not to expect the redelivery of the same specifical Salt: Besides, the Master must of neces­sity D. Leg. in m [...] ­nare. deliver to one man before another.

But by others it has been conceived they ought to contribute per ratione, for as Goods of necessity some must be stowed in the Hold, and that such Goods sel­dome fail without a perill of the Sea; so the rest must of necessity contribute to that misfortune, and so make no distinction.

The Bills of Lading are very useful to settle the diffe­rence between the Assuror and assured, of which there are 3. parts, one sent over Sea; the other left with the Master; and the last remaining with the Lader.

XVI. The Office of Assurance was Erected by the Statute of 43 Eliz. Cap. 12. which reciting, That where­as differences growing upon Pollicyes of Assurances had been ordered by discreet Merchants approved by the Lord Mayor, who did speedily decide those causes, un­till that of late years divers persons did withdraw them­selves from that Arbitrary course, and have sought to draw the parties assured to seek their Moneys of every several Assurer by Suits Commenced in her Majesties Court to their great Charges and delay; whereupon it was Enacted, That the Chancellor or Keeper for the time being should issue forth a standing Commission (to be re­newed yearly, or as often as to him shall seem meet,) for the hearing and determining of all such causes ari­sing on Pollicies of Assurance as shall be entred in the Office of Assurance in London.

The Judges or Commissioners appointed are the Judge of the Court of Admiralty, the Recorder of Lon­don, two Doctors of the Civil Law, two Common Lawyers, 8. grave and discreet Merchants, or to any 5. of them; and that they or the greatest part of the Commissioners have power to Hear, Examine, Order and Decree all such causes in a brief and summary way without formality of pleading.

They have power to summon the parties, examine witnes [...]s upon Oath, commit to prison upon refusal of [Page 247] obedience to their Decrees; they are to meet once a week at the Assurance Office, or some other convenient publique place, and no Fees at all are to be exacted by any person whatsoever.

There lyes an Appeal from their Sentence to the Lord Chancellor or Lord Keeper (but the party must deposite the moneys decreed, and then (though the par­ty be imprisoned he may be discharged) and then it lyes in the Lord Chancellors or Keepers Breast to affirm or re­verse, and to award the party assured double costs.

No Commissioner being party Assuror can act by vertue of this Commission, nor untill he hath taken his Corporal Oath before the Major and Court of Alder­men, To proceed uprightly and indifferently between party and party.

XVII. This was a good Act, had it been as care­fully penn'd as was intended; for there were many things in which this Act did not extend to.

First, Any man may at this day make a private Pol­licy notwithstanding this Act, which is as good and effectual in Law to all intents and purposes, as one made and entred in the said Office; and that such a Pollicy might and may be now sued at the Common Law.

Secondly, The number of Commissioners being so great that there could be no Court without 5. at the least; and without a Court they neither could summon parties or examine witnesses, and that was very difficult to get.

Thirdly, If the parties or witnesses refused to ap­pear, they had no power to punish the party for the delay, with costs or otherwise, which was very mischie­vous.

Fourthly, No Commissioner could sit before he was sworn: Commissions and the Commissioners being of­ten renewed, it was a trouble to be attending a Court of Aldermen, which was difficult sometimes of the year to get.

Fifthly, Though they had power to commit the party who refused to obey their Decree, yet they had no power to make any Order against the Ship.

[Page 248] Which matters being taken into consideration, it was 14 Car. 2. cap. 23. Enacted, That 3. Commissioners, whereof a Doctor of the Civil Law, and a Barrister of 5. years standing to be one should make a Court, and to act as any 5. before might have done.

They have likewise power now given them to sum­mon parties and witnesses, and upon contempt or delay in the witnesses upon the first summons and tender of reasonable charges: and in the parties upon the second summons to imprison offendors or give costs.

Every Commissioner is now to take his Oath before the Lord Major to proceed uprightly in the execution of the said Commission; and any of them may admini­ster an Oath so as the adverse party may have notice, to the end such person may be fairly examined.

Commissions may issue out of the Court of Admiralty for examining of witnesses beyond Seas, or in remote places by directions of the Commissioners, and Decrees may be made against body and goods, and against Exe­cutors and Administrators, and Execution accord­ingly; and assess Costs of Suit as to them shall seem just.

But Execution cannot be against Body and Goods for the same debt, but the party must make his Election as at the Common Law.

XVIII. But these Statutes took not away that Cog­nizance Oyles versus Marshall, Styles Rep. 1654. which the Courts at Westminster claymed upon such Contracts by the Common Law; but onely gave this new erected Court a concurrent Jurisdiction with those at the Common Law: for though the loss happen­ed out of the Realm, yet they had Jurisdiction of the Cause. And therefore if an Action is brought upon a Pollicy of Assurance, though the loss happened at Sea, Dowdales case, Coke lib. 6. fo. 47. 36 Eliz. in B. R. yet the Jury shall enquire; for the loss is not the direct ground of the Action, but the Assumpsit.

The Admiralty have likewise put in if not for an ab­solute Jurisdiction, yet at least a concurrent one; yet 38 H. 8. Crane and Beil, Co. 4. Inst. 138, 139. both have been denyed them, notwithstanding that the Judge of the Admiralty is Judge of the Court of Assu­rance.

XIX. By the making of an Office Pollicy according to the Statute, these advantages will follow.

[Page 249] 1. If the Pollicy be lost, if the same be entred with the Register of the Office, the Entry is effectual to an­swer the matter both at the Common Law, as well as in the same Court; but a private Pollicy lost is like a Deed burnt, unless that there be very strong evidence, as a Copy and the like, it will be of little value. So that then there will remain nothing but an Equitable relief in Chancery, for the satisfaction the party.

2. If a man Freights out a Ship from London to Cales, and assures here, he may write to his Correspondent to make an assurance there of the same; if the matter comes before Commissioners, they may examine the Ensured upon Oath, and determine therein according to Law and the Custome of Merchants: But at the Common Law the same cannot be, but relief must be had in that point according to Equity in Chancery.

3. The same is a Court of Equity as well as a Court of Law.

4. They may decree against 20 Assurors at one time, but at Law they must be sued distinctly; but they can­not compel the Defendants to put in Bayl.

5. They may proceed out of Term as well as in Term; and (if the matter will bear it) they may finish a Cause in a fortnights time.

6. The Judgments there given are generally upon mature deliberation, and by persons well skilled in Ma­ritime affairs; and if their Sentence is thought to be unreasonable, the Lord Chancellor or Lord Keeper may on Appeal determine the same.

CHAP. VIII. Of Prisage and Butlerage.

  • I. What is Prisage, where taken, and of what.
  • II. Merchant Strangers exempted from the same.
  • III. When due, and the exemption of the Citizens of London from the same.
  • IV. What Citizens are capable, and where not.
  • V. A Forraigner imports and makes a Citizen Executor and dyes; whether he shall have the benefit of the Immunity.
  • VI. Where a Forraigner sells to a Citizen before, but he broken, the Vendee shall be chargeable.
  • VII. Where a Grant to discharge a particular Ship shall be good; and where a Grant to particular persons shall be otherwise.
  • VIII. Of Butlerage what and whom are exempted.
  • IX. Where the King becomes enti­tuled to those duties.
  • X. A Grant to be free of all Cu­stomes, Impositions, &c. extends not to Prisage and Butlerage.
  • XI. Cinque-Ports exempted from Prisage.

I. PRisage, is a certain taking or purveyance for wine to the Kings use; The same is an ancient Duty which the Kings of England have time out of mind had and received; the manner hath been by taking of every Ship or Vessel that should come into this Realm, if ten Tun, to have for Prisage one Tun: and if it contain 20 Tun or more, to have two Tun (viz.) unum ante doleum, and the other deorsum, paying 20 s. for each Tun: And this ancient Immunity they have enjoyed as a Flower of the Crown, and by some has been con­ceived Dyer 92. 42. 165. Fleta, lib. 2. cap. 21. not grantable away without Act of Parliament. But yet in 6 E. 3. fo. 3. Case 15. mentions the same to be grantable over.

II. King Edward the First having laid some Impo­sitions on the Merchants, which in Anno 25. of his Reign being taken away with promise that neither he nor his Successors should do any such thing with­out Assent of Parliament: In 31. of his Reign they [Page 251] granted him an encrease of Customes; in lieu of which Rott. Parl. 31 Ed. 1. cap. 1. & 2. he granted them many Immunities, as Release of Pri­sage, &c.

III. Prisage is not due till the unlading, or that which Trin. 5 Jac. in B. R. Kennycot and Boggens case. is commonly called breaking of Bulk; for the words are, de qualibet navi important vini & disonerant inde.

King Edward the Third by his Charter dated 6. Mar­tij Anno Regni primi, granted his Royal Charter of dis­charge to the Major, Commonalty and Citizens of Lon­don, in haec verba, (viz.) Quod de vinis Civium nulla prisa 44 Eliz. fiat, sed perpetue inde essent quieti, &c. which was after­wards allowed in the Exchequer.

IV. It is not every Citizen that is capable of this Pri­viledge, but onely those that are Resiant within the City: And so it was Rul'd in the case of one Knowls, who being a Citizen and free Grocer of London, remo­ved his Houshold cum pannis, and did dwell at Boistol, but yet kept his Shop in London; and a Ship of his arri­ving with Wines at London, and being unladen, the Pri­sage was demanded; he claymed the benefit of discharge. 4 Hen. 6. Knowles case. It was adjudged, he was not capable of the same: for he that will claym the benefit of this discharge, ought to be Civis incola Comorans.

24 H. 6. (A Private Act of Parliament,) Complaint was made, That the Lord Major of London would make Strangers Citizens; It was there declared, That this benefit to be discharged from payment of Prisage, did Hill. 43 Eliz. in B. R. Rott. At­torn' General versus Sacheve­ril and Sneed. not extend to such Citizens as were dotati, made free, but unto those Citizens onely which are comorant inco­lant, and resiant within the City.

V. If a Forreigner brings a Ship laden with Wines Waller versus Hanger, Bul­strod. 3. part, fo. 1. into the Port of London, and then makes a Citizen his Executor and dyes, he shall not have the benefit of this Immunity from payment of Prisage for these Wines, for that they are not bona Civium.

VI. If a Forreigner arrives with a Ship laden with [Page 252] Wines at a Port with an intent to unlade, and before the Goods are entred or Bulk is broken, he sells them to a Citizen, Prisage shall be paid notwithstanding, for it was never the Kings grant to discharge a Citizen in such a manner.

VII. If the King does discharge such a Ship of J. S. being at Sea, particularly naming the same, from the pay­ment of Prisage, and he dyes before the Ship arrives, no duty can be demanded.

But it has been held, If a particular person has a grant to him to be discharged of his Goods, and he dyes be­fore the arrival, the duty shall be paid. Hanger's Case, Hill. 13 Jac.

A Quo Warranto was brought against three Arch­bishops of York, to shew cause why they demanded to have Prisage for Wines brought into the Port of Hull. Bro. tit. Dis­claymer, 47. The two first pleaded to have onely the first taste, and a pre-emption after Prisage paid: But the third pleaded 6 Ed. 3. fo. 5, 6. Archbishop of Yorks Case. a Charter of 15 E. 2. by force of which he claimed the same; and Rul'd not good. For though the Charter might be good, yet it was held in that case, a disclaymer by the Predecessor should bind the Successor: And at this day, the Duke of Ormond in Ireland hath an In­heritance Sir John Da­vies in the case of Cu­stomes. in the Prisage of Wines by the Kings Charter.

VIII. Butlerage is a Custome due from Merchant-Strangers of 2s. upon every Tun of Wine brought into this Realm by them.

King John granted to the Merchants of Aquitaine Trading for Wines thence into England divers Liber­ties, amongst others, Libertatibus concessis Mercatoribus In libro Rubeo in Scaccario Remem. fo. 265. vinetarijs de Ducatu Aquitaniae reddendo Regi & heredi­bus suis 2. s. de quolibet dolio vini ducti per eosdem infra Regnum Angliae vel potestate Regis.

All Merchants Strangers in consideration of the Grant Rott. Chartarum Anno 31 [...]. 1. nu. 44. called Charta Merca­toria. to them by the King of divers Liberties and Freedomes, Concesserunt de quolibet dolio vini quod adducent vel adduci facerent infra Regnum &c. solvent nobis & heredibus nostris See the Char­ter at large in the Chap. of Customes. nomine Custumae duos solidos &c.

[Page 253] It is called Butlerage, because the Kings chief Butler doth receive it. And the double value of these Duties is made penal if any person customes Goods in an­other Stat. 1 H. 5. 2 Ed. 6. 22. mans name whereby to defraud the King of Prisage and Butlerage.

IX. Breaking of Bulk is that which entitles the King to the Duty: for if a Merchant Imports Wines to the number of 20 Tuns, yet if he unlades but part, as 9. or 4. Tun, yet the King shall have the entire Prisage; and though the Custome seems to declare, that the taking must be as well before as after the Mast, yet is not the Officer tyed to that strictness, but may take where he pleases; for two Tuns are the Kings due: for other­wise Kenicott ver­sus Hoggan, Yelverton. Boytons Case, 3. Rep. 44. 10. he might be cozened, the Freighter perhaps lading other Commodities aboard after the Mast.

If there be but one Tun taken out, yet the Duty must be paid: The reason is, for that otherwise the Officer should be obliged to travail perhaps all over the King­dome.

X. The King granted to a Venetian Merchant that he should be quit, did omnibus custumis Subsidijs & im­positionibus & omnibus alijs denariorum summis debitis & solubilibus pro quibuscun (que) Merchandizis importandis; and that he should be as free as the Citizens of London: In that case it was adjudged in the Exchequer, That by that Vouched in the case of Cu­stomes in Sir John Davies Reports. Grant the King did not discharge him of Prisage, be­cause the Prisage was not specially expressed in the Grant, although that the City of London were by a spe­cial Charter freed of Prisage.

XI. The Cinque-Ports are likewise discharged of Cl. 1 E. 1. m. 5. Prisage.

CHAP. IX. Of Pylots, Wharfage, Primage, Averidge, Loadmanage.

  • I. Of the Pylots charge till the Ship is brought to her place or bed.
  • II. If the Ship is likely to miscar­ry, what the Ships Crew may do at such time.
  • III. Of Ignorant Pylots their pu­nishment, and if the Ship mis­carries, who shall Answer.
  • IV. Of Wharfage, and where the Wharfinger shall answer, and where not.
  • V. Primage and Petilodmanage where due, and for what; and if the Ropes break, where the Master, and where the Wharfinger shall answer.
  • VI. Petty Averidge where due, and for what, and Hatt mo­ney.
  • VII. Loadmanage where due, and for what.

I. BY the Lawes of Oleron after that the Pylot hath brought the Ship to sure Harbour, he is no fur­ther bound or lyable; for then the Master is to see her bed and to her lying, and bear all the rest of her Bur­then, charge and danger, except that of the act of God; So that before she comes to her place or bed, and while she is under the Pylot's charge, if she or her Goods perish, or be spoyled, the Pylot must make good the same.

II. By the Lawes of Oleron, if his fault is apparantly gross that the Ships Crew sees an apparent Wreck, they Leg. Oleron, Cap. 23. may then lead him to the Hatches and strike off his head; But the Lawes of England allow no such hasty execution.

By the Lawes of Denmark an ignorant Pylot is to pass thrice under the Ships Keel.

The Master generally in the Charterparty covenants to find a Pylot, and the Merchant covenants to pay him his Pilotage.

[Page 255] III. But if a Ship should miscarry coming up the River under the Charge of the Pylot, it has been a Question, Whether the Master should answer in case of the insufficiency of the Pylot; or whether the Mer­chant may have his remedy against both? It hath been conceived the Merchant hath his Election to charge ei­ther; and if the Master, then he must lick himself whole of the Pylot.

IV. Wharfage is money paid for landing Wares at 27 H. 8. cap. 26. 22 Car. 2. cap. 11. a Wharfe, or for shipping or taking in Goods into a Boat or Barge, they commonly keep Boats or Lighters of their own for the carrying out and bringing in of Goods, in which if a loss or detriment happens, they may in some cases be made lyable.

An Action of the Case grounded on the Custome of the Realm was brought against the Defendant Master of a Wharfe, for not safe delivering of Goods, &c. The Case appeared to be thus; The Master unladed a Bale of Silk into the Wharfingers Lighter, and sent part of his Marriners to convey it ashoare; it happened Randall ver­sus Hilton and Butler. Pasch. 26 Car. in B. R. that the Goods were stole: The Question was, Whe­ther the Wharfinger or the Master should answer? Up­on a Tryal at Guild-Hall before my Lord Chief Justice Hale, it was there Rul'd, That the Master was lyable, and not the Wharfinger; for till they are landed, the Master hath them under his power: but if goods are to be sent aboard, there if they miscarry in their passage, the Wharfinger must answer.

V. Primage and Petilodmanage is likewise due to the Master and Marriners for the use of his Cables and Ropes to discharge the Goods; and to the Marriners for loading and unloading of the Ship or Vessel, it is 32 H. 8. cap. 14. commonly about twelve pence per Tun.

If the Ropes break in hoysting of Goods out of the Leg. Oleron. Cap. 10. Ship into the Lighter or Boat, the Master must answer if the Goods be damnified or lost.

But if the Roapes break at the Crane in taking them out of the Lighter, (although till they are landed, they [Page 256] are not out of the Masters custody) yet the Whar­finger Co. Entry, fo. 2. shall answer.

VI. Petty Averidge is another little small Duty which Merchants pay to the Master when they onely take Tunnage, over and above the Freight, the which is a small recompence or gratuity for the Masters care Some conceive that the Ave­ridge men­tioned in the Bills, is that which is the Averidge or Contribution for losses. over the Lading; and in the Bills of Lading they are exprest after Freight, together with Primage and Ave­ridge accustomed.

The French Ships commonly term the Gratuity Hatt-Money, and our English Merchants pay it our Ma­sters over the Freight, it is sometimes more, sometimes less; two or three Pieces.

VII. Loadsman, is he that undertakes to bring a Ship safe through the Haven to the Key or place of discharge, and if thorough his ignorance, negligence [...]ghton, Ar­ [...]c. Enquiry, 27, 28. or other fault he suffereth the Ship or Merchandize to perish, an Action lyes against him at the Common Law; and by some conceived he may be punished in the Ad­miralty, but not in both.

The Hire is called Loadmanage, the which the Py­late receives of the Master for conducting the Ship up the River, or into the Port to her convenient Bed.

If two Ships lye in a Harbour, and the Anchor of one is feared may occasion to damnifie the other, if after request and refusal (and there be probable cause, the other may take up the same, and let the same down at a further distance, and the same is opposed or hindred, if any damage happens they are to make full satisfacti­on; so it is if they lay out an Anchor and neglect the Per Leg. Oleron Cap. 15. placing of a Buoy to the Anchor, and damage happen thereby, they are not onely subject to be punished in the Admiralty, but likewise to render satisfaction to the party damnified.

If two Ships be in the River, and the one falls foul on the other both being laden, by the Law Maritime the Contribution is to be in Common, and to be equal­ly [Page 257] divided and apprized half by half; but then the Mar­riners must swear there was no fault in them: for other­wise Per Leg. Oleron. Cap. 14. one that hath an old rotten Vessel which he can no wayes dispose of, may so order the matter as to lay her in the way of a good Ship under sayl, so that the same may be answered in damage: but when the Con­tribution is made equal, then the contrivance will be avoided.

CHAP. X. Of Bills of Exchange.

  • I. Of the Antiquity of Exchange by the Hebrew Law.
  • II. Of the Antiquity of Exchange by the Romans.
  • III. Of Exchanges by other Nati­ons in imitation of those peo­ple.
  • IV. Of the several sorts of Ex­changes, and of Cambio com­mune.
  • V. Of Cambio real, or Exchanges value for value.
  • VI. Of Cambio sicco, or dry Ex­changes.
  • VII. Of Cambio fictitio, or seigned Exchange.
  • VIII. Of the Exchanges used this day, and on what.
  • IX. How Exchanges are made, and upon Moneys in London.
  • X. Moneys paid generally, how re­paid by Exchange.
  • XI. Of Bills of Exchange payable at single usance.
  • XII. Bills of Exchange at double or treble usance, and of the cu­stomary usances to certain places from London and Amsterdam to other places.
  • XIII. Of the nature of Bills of Exchange, and how esteemed of by the Lawes of England.
  • XIV. Bills drawn more then one, no prejudice to the parties; and of the true measure of judging on Bills by Custome.
  • XV. What amounts to an acceptance generally, and on refusal where to be protested
  • XVI. All the drawers are made lyable; and whether the party to whom the Money is made payable is bound to procure an accep­tance.
  • XVII. Protest, what is meant by the same; and where the same is necessary, and where not.
  • XVIII. Bill drawn on two per­sons, where the same is necessary, and where not.
  • XIX. One Factor serves a Com­pany, where a Bill accepted of his by one of the Company obliges the rest, and where not.
  • XX. What words amount to an acceptance, and what not.
  • XXI. Where a Bill may be accepted for part, and what must be done with the Bill thereupon.
  • XXII. When a Countermand may legally be made, and when not.
  • XXIII. How the several parties interessed in a Bill of Exchange are obliged and fettered to each other.
  • XXIV. How a Collateral security may be annexed to a Bill when the time is elapsed for non-pay­ment.
  • XXV. Where the Protest is onely necessary to be kept, and where that and the Bill must both be remitted.
  • XXVI. Bill lost, what is necessa­ry for the parties interessed in such case to act.
  • XXVII. Of blanck Endorsements, the validity of the same.
  • XXVIII. A Bill once accepted, [Page 259] whether the same may be revo­ked; and whether it may be ac­cepted to be paid at a longer time then is mentioned: and what Protests are then necessary to be made.
  • XXIX. Of Bills accepted for the honour of the drawer, where the same shall oblige.
  • XXX. The time customary allow­ed for payment after failer of payment at the day.
  • XXXI. Of the validity of the spee­dy protest as in relation to re­cover the money to be paid on the drawer.
  • XXXII. Bill accepted, and before the day of payment the Acceptor is a sayling, what's necessary to be done as in reference to obtain­ing better security.
  • XXXIII. Bills accepted for the honour of the drawer, where turned into an act and remitted by him that gives honour to the Bill.
  • XXXIV. The Acceptor ready to pay, but the party to whom made payable is dead, what is neces­sary.
  • XXXV. Causes general for a Pro­test, and where satisfaction to the deliverer discharges all par­ties.
  • XXXVI. Of Exchange by way of Credit.
  • XXXVII. One payes a Bill before it be due, and the party to whom the same was paid fails, where he shall be answerable to the drawer notwithstanding.
  • XXXVIII. Of Bills assignable over according to the Customes of Merchants, what operation in England.

I. THe Exchange for Moneys is of great Antiquity as well by observation of the Hebrew Customes, as those of the Romans.

Upon the first of the Month Adar, Proclamation was made thoroughout all Israel, That the People should provide their half Sheckl [...] which were year­ly paid towards the Service of the Temple according to the Commandement of God; on the 25th of Adar then they brought Tables into the Temple, (that is, Exod. 30. 31. into the outward Court where the people stood) on these Tables lay the lesser Coyns which were to furnish those who wanted half Sheckles for their Offerings, or that wanted lesser pieces of money in their payment, for Oxen, Sheep, Doves and the like which stood there Moses Kotsenses Printed at Ve­nice 1557. de Siclis, fo. 12 [...]. Col. 2. in a readiness in the same Court to be sold for Sacrifi­ces; but this supply and furnishing the people from those Tables was not without an Exchange for other money, or other things in lieu of money, and that up­on advantage: Hence all those that sate at the Tables were called chief Bankers, or Masters of the Exchange.

[Page 260] II. By the Romans it is supposed to be in use up­wards of 2000 years, Moneys being then elected out of the best of Metals to avoid the tedious carriage of Mer­chandize, from one Countrey to another: So other Nations imitating the Jewes and Romans, erected Alex. Gendier. l. 5. cap. 30. [...]. Mints, and coyned Moneys, upon which the Exchange by Bills was devised, not onely to avoid the danger and adventure, but also its troublesome and tedious car­riage.

III. Thus Kingdoms and Countreys having by their soveraign authorities coyned Moneys, caused them to appoint a certain Exchange, for permutation of the va­rious Coyns of several Countreys, without any transpor­tation of the Coyn, but giving par pro pari, or value for value, with a certain allowance to be made those Ex­changers for accommodating the Merchants.

IV. As Commerce became various, so Exchange numerous; but generally reduced to four, Cambio Com­mune, Cambio real, Cambio sicco, and Cambio fictitio.

Cambio Commune in England was those that were Constituted by the several Kings, where having recei­ved Reg. Orig. 194. Statut. 5 R. 2. cap. 2. 3 H. 7. 6. Moneys in England, would remit by Exchange the like sum to be paid in another Kingdome. Edward the Third, to ascertain the Exchange, caused Tables to be set up in most of the g [...]eral Marts or Ports of England, declaring the values of all or most of the Forraign Coyns of those Countries where his Subjects held cor­respondence or Commerce, and what allowances were to be made for having Moneys to be remitted to such Countryes or Kingdoms.

V. Cambio real, was when Moneys were paid to the Exchanger, and Bills were drawn, without naming [...] E. [...]. Acton B [...]nel. the Species, but according to the value of the several Coyns, which two Offices afterwards were incorpora­ted, and indeed was no more but upon payment of Moneys here in England to be repaid the just value in money in another Countrey, according to the price agreed upon between the Officer and deliverer to allow or pay for the exchange of the money and the loss of time.

[Page 261] VI. Cambio sicco, or dry Exchange, is when a Mer­chant hath occasion for 500 l. for a certain time, and would willingly pay interest for the same; the Banker being desirous to take more than the Statute gives, and yet would avoid the same, offers the 500 l. by Exchange for Cales, whereunto the Merchant agrees; but the Mer­chant This Usury was first intro­duced by the Jewes here in England. Vide Co. 2. Inst. fo. 506. having no correspondence there, the Banker de­sires him to draw his Bill, to be paid at double or treble usance, at Cales, by Robin Hood, or John-a-Noakes (any seign'd person) at the price the Exchange is then cu­rant; accordingly the Merchant makes the Bill, and then the Banker payes the moneys; which Bill the Banker remits to some Friend of his to get a Protest from Cales for non-payment, with their Exchange of the money from Cales to London, all which with costs, the Merchant is to repay to the Banker; sometimes they are so con­scientious as not to make above 30 per Cent.

VII. Cambio fictitio, when a Merchant hath occasion for Goods to Freight out his Ship, but cannot well spare money; The Owner, of the Goods tells him he must have ready money; the buyer knowing his drift it is agreed, that the seller shall take up the moneys by Exchange for Venice, or any other parts; but then the Merchant must pay for Exchange and re-exchange.

So likewise where the Merchant is become indebted to the Banker▪ they are contented to stay, the Merchant paying Exchange and re-exchange; the which he will most certainly compel him to do.

These two last wayes of grinding the face of the 3 & 4 H. 7. generous Merchant, was afterwards prohibited, but, notwithstanding it was found impossible to moderate the inequality of Exchanges, and to have value for va­lue: so that at this day it seems to be a Cold, that many an honest man is apt to catch.

VIII. The just and true Exchange for Moneys that is at this day used in England (by Bills) is par pro pari, according to value for value; so as the English Exchange, being grounded on the weight and fineness of our own Moneys, and the weight and fineness of the Moneys of [Page 260] [...] [Page 261] [...] [Page 262] each other Countrey, according to their several Stan­dards proportionable in their valuation, which being truly and justly made, ascertains and reduces the price of Exchange to a sum certain for the Exchange of Mo­neys to any Nation or Countrey whatsoever: As for instance,

If one receives 100 l. in London to pay 100 l. in Exe­ter; this by the Par.

But if a Merchant receives 100 l. in London to pay 100 l. at Paris, there the party is to examine and com­pare the English weight with the weight of France, the fineness of the English Sterling Standard with the fine­ness of the French Standard; if that at Paris and that at London differ not in proportion, then the Exchange may run at one price, taking the denomination according to the valuation of the Moneys of each Countrey; but if they differ, the price accordingly rises or falls: and the same is easily known, by knowing and examining the real fineness of a French 5 s. piece, and an English 5 s. piece, and the difference which is to be allowed for the want of fineness or weight, which is the Exchange, and so proportionably for any, Sums or Moneys of any other Countrey; the which is called Par, or giving va­lue for value.

But this Course of Exchange And there­fore some are of opinion, that there can be no certain rate set on the Par in Ex­change, to answer justly the value of the Coyns of Forraign Parts, by reason of the diversity of them, and of their intrinsical values. Vide Sir Robert Cottens Posthuma, fo. 306. is of later years abu­sed, and now Moneys are made a meer Merchandize, and does over-rule Commodities, and Moneys rise and fall in price according to the plenty and scarcity of mo­ney.

IX. As Money is the common measure of things be­tween man and man within the Realm, so is Exchange between Merchant and Merchant within and without the Realm; The which is properly made by Bills when Money is delivered simply here in England, and Bills re­ceived for the repayment of the same in some other Country either within the Realm or without the Realm, at a price certain, and agreed upon between the Mer­chant and the Deliverer.

[Page 263] For there is not at this day any peculiar or proper Money to be found in Specie whereupon Outland Exchanges can be grounded; therefore all Forraign Coyns are called imaginary,

At London all Exchanges are made upon the pound sterling of 20 s. and 12 d. to the shilling, for Germany, Cro. 2. so. 7. Martin versus Bour. Pasch. 1 Jac. in B. R. Low-Countries, and other places of Traffique; and for France upon the French Crown: for Italy, Spain, and some other places, upon the Ducat: For Florence, Ve­nice, and other places in the Streights, commonly by the Dollar, and Florin.

X. Bills drawn to be paid, are either at sight, or a time certain, single, double or treble usance, and are commonly about 3. for fear of any miscarriage.

The taking and delivering money at sight binds the taker up to give his Bill to pay at sight, or within some short time the like sum after such a rate the Pound, Dol­lar, Ducat or Crown, as is agreed between them in Forraign Coyn, either according to the valuation of Moneys, or currant Moneys for Merchandize.

XI. The second time of payment is called Usance, it is known or taken to be the compass of one month, to be computed from the date of the Bill, and that go­verned according to the custome of the place where those Exchanges do run.

XII. The third is double or treble Usance 2. or 3. months; sometimes there are Exchanges made upon half Usance.

The times of payment do alter the price of Exchan­ges according to time, commonly after 12, 15, or 20 in the Hundred by the year.

[Page 264]

Usance from London toMiddleboroughare generally accoun­ted one months time from the date of the Bill.
The Bills may have a larger, sometime a shorter time, there is no di­rect certain­ty, but one­ly that single Usance is a month, dou­ble Usance 2. months, &c.
Usance from Amsterdam toRomeAre generally ac­counted 2 months from the date, &c.
From London toFlorenceis sometime accoun­ted treble Usance from the date of the Bill.

XIII. Excambium vel Cambium, or as the Civilians term, permutatio; Billa Excambij signifieth no more but a customary Bill, solempnized by a numerous consent of Traders, to have a respect more then other Bills, though of as high and as intrinsical a value: And those that give such Bills were called Exchangers, or Ban­kers.

Though the Act was no more but to keep up the life of Commerce, (without which it is impossible for any Nation to flourish;) yet could not any person draw Reg. Orig. fo. 194. Statut. 5 [...]. 2. Cap. 2. such Bills, or return Money beyond Seas, without Li­cence first obtained of the King.

[Page 265] But at this day any man may do it without being ob­liged to obtain such leave.

XIV. Such a Bill being drawn, they commonly take one or two more of the same date word for word, onely this Clause is inserted in the second, My first of the same date persons and sum not being paid: And in the third, My first and second of the same date, and con­tents not being paid.

The right measure of judging on Bills of Exchange, is purely by the laudable Custome often reiterated over Consuetudo quandocun (que) pro lege Servatur, saith Bracton, in partibus ubi fuerit more utentium appro­bata; longaevi enim temporis usus & consue­tudinis non est vilis authori­tas, lib. 1. Cap. 3. and over, by which means the same hath obtained the force of a Law, and not the bare and single opinion of some half-fledg'd Merchants: For Bills of Exchange are things of great moment as to Commerce, and are neither to be strained so high, as that a man should not cast his eye on them but the same shall be taken to be an acceptance: nor on the other hand having duly ac­cepted them, the same should be rashly and unadvisedly avoided, by the shallow fancy of such nimble pated shufflers; but they are soberly judged and governed, as the same hath generally been approved of and adjudged of in former Ages.

XV. A Bill being remitted, the party is to go im­mediately to the person to whom the same is directed, and present the same in order to his acceptance; if it be tendred, and the party subscribes Accepted; or, Ac­cepted by me A. B; or being in the Exchange sayes, I ac­cept the Bill, and will pay it according to the Contents; this amounts without all controversie to an Accep­tance.

But if the same be refused, the party must then pro­cure Words are made to sig­nifie things; By the word, Deliverer, is meant he that payes the Money beyond Sea. By the word, Drawer, he that writes or drawes the Bill of Exchange; the person upon whom, is called the Acceptor. a Protest, and remit the same to the Deliverer, who is to resort to the Drawer for satisfaction for the prin­cipal costs and damage.

[Page 266] XVI. If there be several Drawers who subscribe, all are liable in case of a Protest.

If a Bill is drawn upon a Merchant in London pay­able to J. S. at double Usance, J. S. is not bound in Nor is any such thing as a 3. dayes re­spite to be al­lowed for ac­ceptance. strictness of Law to procure an acceptance, but onely tender the Bill when the Money is due: but Merchants which generally have generous spirits will not surprize a man, but will first procure an acceptance, [...]or at least leave the Bill for the party to consider and give his an­swer, and then give advice of the same, and if the mo­ney be not paid, then protest.

XVII. A protest is no more but to subject the drawer to answer in case of non-acceptance or non-payment; nor does the same discharge the party Acceptor, if once accepted; for the Deliverer hath now two remedies, one against the Drawer, and the other against the Ac­ceptor.

To entitle the party to an Action at Law in England against the Acceptor, it matters not whether there be a Protest; but to entitle the party to a recovery against the Drawer beyond the Seas or elsewhere, there must be a Protest before a Publique Notary.

XVIII. A Bill drawn on two joyntly must have a Per Jasonem in lege allegantur ff. de conditio­nibus indebiti. joynt acceptance, otherwise it must be protested, but to two or either of them, è cont.

Then if the same be accepted by one, it is pursuant to the tenour of the Bill, and ought not to be protested, but in case of non-payment; and in that case the person acceptor is lyable to an Action: but if it be on joynt Traders, an acceptance by one will conclude and bind the other.

XIX. A Factor of the Hamborough, Turkey, or India Company drawes a Bill on the same, and a member ac­cepts the same, this perhaps may make him lyable, but not another member.

So it is if 10 Merchants shall imploy a Factor at the Canaries, and the Factor drawes a Bill on them all, and [Page 267] one of them accepts the Bill, and then refuses payment; this will not oblige the rest.

But if there be 3. Joynt Traders for the common stock and benefit of all there, and their Factor drawes a Mich. 19 Jao. C. B. Vanheath versus Turner, Winch. 24, 25. Bill on them; the acceptance of the one will oblige the residue of the Company.

XX. A small matter amounts to an acceptance, so that there be right understanding between both par­ties; As, Leave your Bill with me and I will accept it: Or, Call for it to morrow, and it shall be accepted; that does oblige as effectual by the Custome of Mer­chants, and according to Law, as if the party had actually subscribed or signed it, (which is usually done.)

But if a man shall say, Leave your Bill with me, I will look over my Accounts and Books between the drawer and I, and call to morrow, and accordingly the Bill shall be accepted; this shall not amount to a compleat accep­tance: for this mention of his Book and Accounts, was really intended to see if there were effects in his hands to answer, without which perhaps he would not accept of the same. And so it was Rul'd by L. Chief Justice Trin. 20 Car. 2 in B. R. Hale at Guild-Hall.

A Bill may be accepted for part, for that the party The receiving of part of the Moneys upon the Bill, does no wayes wea­ken the Bill. upon whom the same was drawn had no more effects in his hands; which being usually done, there must be a protest, if not for the whole sum, yet at least for the residue: however, after payment of such part there must be a protest for the remainder.

XXII. Any time before the money becomes due, the Drawer may countermand the payment, although Per leg. publia in si ff. depositi & per Bart. ibidem, & per Romanum sin­gulari, 474. the Bill hath been accepted.

The Countermand is usually made before a Notary; but if it comes without, so it comes under the parties hand, it is well enough.

If the Bill be accepted, and the party desires to have the money before it be due, and it is paid, and then [Page 268] there comes a countermand; it hath been conceived, that he ought not to be allowed, for as he could not enlarge the time, so he could not shorten it, but his duty is to follow his Order.

XXIII. Note, The Drawer is bound to the Deli­verer, Words are made to sig­nifie things; Therefore by the word, De­liverer, is meant he that payes the Mo­ney: he that drawes the Bill is called the Taker or Drawer: And the party upon whom, is called the Accepter. and the Acceptor to the party to whom the Bill is made payable; yet both are not bound to one man, unless the Deliverer be a servant to the party to whom the money is made payable; or the party to whom the money is made payable be servant to the Deliverer: yet both Taker and Accepter are lyable till the Bill is paid.

XXIV. Therefore when you bring your Action, be sure to draw your Declaration accordingly, and make the same part of the Custome as you set it forth; for if you vary, you must expect to be nonsuited: and the party is not bound to alledge a particular place of de­mand. Styles, Pasch. 1654. in B. R. fo. 370.

If a Bill be returned protested for want of payment, the Drawer is to repay the money and damage, or else he may procure a security, which is no more but ano­ther person of value subscribes the Bill, in these or the like words, I here underwritten do bind my self as Princi­pal, according to the Custome of Merchants, for the summe mentioned in the Bill of Exchange whereupon this Protest is made, Dated, &c.

Now the Drawer by vertue of this supplymental agreement hath as much time again to pay the Moneys as there was given him in the Bill when it was first drawn; so that if the money is not then paid, together with the Rechange and Charges of the party, the party may recover the same on the Principal or Security.

XXV. Beyond the Seas the protest That is for not payment, the Bill being once accept­ed. under the No­tary's hand is sufficient to shew in Court without pro­ducing the very Bill it self. But if a Bill in England be [Page 269] accepted, and a special Action grounded on the Cu­stome be brought against the Acceptor, at the Tryal the party Plaintiff must produce the Bill accepted, and not the Protest; otherwise he will fail in his Action at that time.

Therefore it is safe that a Bill once accepted be kept, and onely a Protest for non-payment be remitted; but a Bill protested for not acceptance must be remitted.

XXVI. If a Bill is lest with a Merchant to accept, and he loses the Bill (or at least it is so mis-lade that it cannot be found;) if the party shall request the Merchant to give him a Note for the payment according to the time limited in the Bill of Exchange. Otherwise there must be two Protests, one for not acceptance, the other for non-payment; but if a Note is given for payment, if there happens to be a failer, yet in that case there must be Protest for non-payment.

XXVII. A Bill is remitted to J. S. who owes mo­neys to J. D: J. S. delivers the Bill to J. D, and on the back-side subscribes his name; if J. D. receives the moneys, he may fill up the blanck as if the moneys had been actually paid to J. S: This is practised amongst Merchants, and by them reputed firm and good. But certainly the Common Law looks upon this filling up of Blanks after a man hath once signed or sealed, to be no better then a harmless forgery.

Note. No person be it Wife or Servant, can accept of a Bill of Exchange to bind the Master without a law­ful authority, as a Letter of Attorney, and the like, which must be under-hand, unless that it has been for­merly and usually done by the Wife or Servant in such case, when the Master hath been out of Town; who hath approved of the same and answer'd payment: it must be usually done; but one Partner may for an­other. Styles Reports, in B. R. 370.

A Servant of Sir Robert Clayton and Mr. Alderman Morris, (but at that time actually gone from them) took [Page 270] up 200 Guineys of Mr. Monck a Goldsmith, without any authority of his Masters; (but Monck did not know that he was gone) the Moneys not being paid, Monck Monck versus Clayton Mil', and Morris. Mich. 22 Car. 2. in B. R. brought an Action against Sir Robert Clayton and Mor­ris, and at Guild-Hall it was Rul'd per Keeling Chief Justice, That they should answer; and there was a Ver­dict for the Plaintiff: And though there was great en­deavours to obtain a new Tryal, yet it was denyed, the Court at West minster being fully satisfied that they ought to answer: for this Servant had used often to receive and pay moneys for them; and thereupon they actually paid the moneys.

Note. That which will oblige the Master, will be the And though the same seems an act of Wisdome for Merchants and others so to take, yet it oftentimes proves the destruction of many a Family; The Father puts out the Son perhaps with no less then 2 or 300 l; and is himself become bound for his Truth and just Accounting, &c. The Servant is immediately trusted with his Cash, and then he too young experienc'd in the World, either neglects keeping a iust account, or keeping that, subjects his Masters Cash to be spent by himself and those who make it their sole Trade to betray such Youths: The Master finding the consumption, calls his Servant to account, who conscious of the act, forsakes his Service, dares not see his Relations, and then as a general consequence falls into a Company, the which nothing but Providence can preserve from taking their wicked cour­ses. The Father is called to answer, (what ever the Master does say the Ser­vant hath spent or imbezled) none being able to contradict him, he must with a heart full of grief submit to and pay, besides the loss of the Moneys advanced upon the Servant's first putting forth: Which sometimes proves a great affliction in a Family. On the other side, if Servants were not to be entrusted, the My­stery could not be learnt, nor the business dispatched; and therefore faith must be given: but then it were Justice and Honesty that as a Father puts perhaps the Child of his love to one in whom he reposes a faith and trust, that the Master should be then as a Parent, so they should prevent all occasions that might sub­ject them to Temptations, and not be over-hasty in Trusting them with the Cash: which is the very Bait our London Gamesters catch such Gudgeons. authority and liberty which he usually gives the Ser­vant; therefore such a power devolved, ought to be secured by the prudent'st way that may be; which is generally done by Bonds and Obligations.

If a Bill of Exchange by contrary Wind or other occasions be so long on the way that the Usance or time limited by the Bill be expired, and being tendred, both acceptance and refusal are denyed; protests for both [Page 271] must be made, and the Drawer must answer the value, rechange and damage.

XXVIII. A Bill once accepted cannot be revoked by the party that accepted it, though immediately after Rastal 339. and before the Bill becomes due, he hath advice the Bald. in r [...] br. de constitut. pecunia in ult. Col. & leg. quidem ff. eo­dem Col. penult. Drawer is broke.

If a Bill is not accepted to be paid at the exact time, it must be protested; but if accepted for a longer time, the party to whom the Bill is made payable must protest the same for want of acceptance according to the tenour: yet he may take the acceptance offered notwithstanding. Nor can the party if he once subscribes the Bill for a longer time, revoke the same, or blot out his name, al­though it is not according to the tenour of the Bill; for by his acceptance he hath made himself debtor, and owns the draught made by his Friend upon him, whose right another man cannot give away, and therefore can­not refuse or discharge the acceptance.

Note. This case will admit of two Protests, perhaps three:

  • 1. One Protest must be made for not accepting ac­cording to the time.
    Bald. in Leg. pro debito. C. de bon. actor. Judi. possiden. & per Bartol. in Leg. singula­ria. Col. 7. ff. probatur.
  • 2. For that the money, being demanded according to the time mentioned in the Bill, was not paid.
  • 3. If the Money is not paid according to that time that the Acceptor subscribed or accepted.

A. drawes a Bill on B, and B. is in the Country; C. a Friend of his hearing of the Bill accepts it: the party to whom the money is to be paid must make a protest for non-acceptance by B, and then he may take the ac­ceptance of C, and it shall bind C. to answer the Mo­ney.

If a Bill is drawn on B, and B. happens to be in the Country, and a Friend of his desires the party not to Pinchard ver­sus Fowk, Styles, 416. protest, and he will pay the same, it is good, and shall bind such party.

If there be two joynt-Merchants or Partners, and [Page 272] one of them accepts a Bill of Exchange, the same shall Pasch. 1654. in B. R. Styles 370. bind the other; and an Action of the Case on the Cu­stome may be maintained against him.

XXX. Merchants generally allow 3. dayes after a Bill becomes due for the payment; and for non-pay­ment London. within the 3. dayes protest is made, but is not sent away till the next Post after the time of payment is expired.

If Saturday is the third day, no protest is made till Holland. Munday.

XXXI. The use of the Protest is this, That it signi­fies There are two Protests, 1. For non­acceptance, which is cal­led intimation. 2. for non­payment. to the Drawer that the party upon whom he drew his Bill was unwilling, not to be found or insolvent, and to let him have a timely notice of the same, and to en­able the party to recover against the Drawer,

For if one drawes a Bill from France upon a person in England, who accepts and fails, or becomes insolvent at the time of payment, if there be not a Protest and Which is look'd upon to be the third day. timely notice sent to the Drawer there, it will be difficult to recover the money.

In Holland they are not altogether so strict, yet there must be a reasonable time of notice; the reason is, for perhaps if he had reasonable and timely notice, the Drawer then might have had Effects or other means of his upon whom he drew, to reimburse himself the Bill; which since for want of timely notice he hath remitted or lost. And the general Rule is, That though the Drawer is bound to the Deliverer till the Bill is satis­fied, yet it is with this proviso, that protest be made in due time, and a lawful and an ingenious diligence used There is no danger, be the party never so responsible, to protest imme­diately if the money be not paid when it is due i. e. the third day; but there may (especially beyond Seas) be great hazard for want of protesting. for the obtaining payment of the Moneys; for it were unreasonable the Drawer should suffer thorough his neglect.

XXXII. Where a Merchant hath accepted, and before the same became due, he becomes insolvent, or at least [Page 273] his credit publiquely blasted, a Protest ought to go; but In leg. pno de­bito in fine C. de bonis author. Judi. possiden. then there is usually a demand made, which once come­ing, the Drawer is compellable to give better security; and if a second Bill comes if no protest, then Drawer and Security lye at stake.

XXXIII. If a Merchant drawes a Bill, and there is a Protest for non-payment; if another person hearing of the same declare, that he for the honour of the Draw­er will pay the contents, and thereupon subscribes; he is obliged thereby: and in this case it has been practi­sed, that the party that received the money hath put his name on the back-side of the Bill in blanck; but the receipt is sometimes taken on the Protest, which toge­ther with the whole proceeding is turned into an act, and the same being drawn by the Notary, is remitted to the Drawer by him who gave honour to the Bill.

XXXIV. If a Bill be accepted, and the party dyes, yet there must be a demand made of his Executors or Administration; and in default or delay of payment, a Protest must be made: and although it may fall out that the Moneys may become due before there can be 14 dayes al­lowed from the death be­fore Admini­stration can be committed, unless there be a Will. Administrators, or the Probate of the Will be granted; yet that is delay sufficient for a Protest in case of non-payment.

But on the other hand, if the party be dead to whom the Moneys are made payable, and the Moneys are ready to be paid, and there is no person that can legally give a discharge; yet a protest ought not to go for not payment: The reason is, because there is no person that But an Intima­tion ought to go, and that the Acceptor is willing to pay according to Order. hath any authority either in deed or in Law to make it, and a Notary ought not to make it; if he does, and the party hath received any prejudice thereby, an Action of the Case perhaps may lye against him for his pains: nor does it avail, that if security be offered to save him harmless against the Executors or Administrators, for that is an act left to his own discretion; for perhaps the security may not be lik'd: but whether good or bad, makes nothing as to oblige him in Law.

But if a man is bound in a Bond to pay a sum of [Page 274] money to J. S. his Executors, Administrators, &c. and the Obligee dyes intestate the day before the sum be­comes due, yet the Bond is not forfeited if not paid at the day, because there was no body to whom the Obli­gor could pay to save his Obligation: But as Littleton sayes, if it be to pay to J. S. generally, you must hunt him out all over the Kingdom, if you'l save the penalty.

XXXV. A man not found, or being found not met withal either at home or the Exchange, is cause suffici­ent for a protest; but in that there must be diligence used in the finding him.

A Bill returned protested for non-payment being once satisfied by the drawer to the deliverer, the drawer is discharged and so is the Accepter to him to whom the Moneys were to be paid: but, the Accepter by vertue of his acceptance makes himself a debtor secundum con­suetudinem Mercatoriam to the drawer.

XXXVI. Moneys may be had on Exchange by way of Letters of Credit, the which are in two respects, the first general, the other especial.

The general Letter is open directed, To all Merchants and others that shall furnish my Servant or Factor, or any other with such and such Moneys; for repayment of which he binds himself to answer and pay all such Bills of Ex­change as shall be drawn on him upon the receipt of the value, by his Servant, Factor or other person: If there be really Moneys advanced on this Letter of Credit and paid to the Factor, Servant or other, and Bills of Ex­change are sent to the party that sent such Letter of Credit, and if he refuses to accept, yet according to the customes of Merchants he is bound to pay; the reason is, for there was no respect had to the ability of the ta­ker up, but to him that gave his Letters of Credit: and therefore in such case if an Action at Law be brought, the particular custome as to that point must be carefully set forth.

The special Letters of Credit, where one writes a Letter to furnish another mans Factor or Agent; and there is in this the same remedy as above.

[Page 275] As Bills of Exchange seldome come without Letters of Advice, so ought they to be pursued: If a Bill shall express, And put it to the account of A; and the Letter of Advice sayes B; this must be protested against, for it cannot safely be paid; at least running the risque of an equitable Suit.

XXXVII. If one payes money on a Bill before it be due and the party breaks, it has been conceived that the party ought to answer the drawer: The reason hath been, because the drawer might have countermanded the same, or ordered the Bill to be made payable to an­other.

In Italy if Money is paid to a Banker's Servant, and if the Master subscribe, Pagate com si dice, this binds the Master as effectually as if he had subscribed it with his own hands.

XXXVIII. A Bill drawn by a Merchant in London payable by another person beyond Seas, such Bills in most Countreys are assignable over from Merchant to Merchant, and the last person may sue and recover the same upon an acceptance: But in England onely the first person mentioned in the Bill, and to whom the Money is made payable may recover. 'Tis true, such person to whom the Money is made payable, may for valuable consideration deliver this Bill to another per­son, and he may endorse an Order on the back-side; but if the party afterwards refuses payment of the same, it may be sued in the parties name to whom the same was transferred, laying the same by way of Custome.

CHAP. XI. Of Moneys advanced by way of Bottomerie, or Faenus Nauticum.

  • I. How Commerce is made equi­valent to Natural Communi­ty.
  • II. Whether Money be fit onely to maintain the Trade and Credit of Vice.
  • III. Whether Abraham chose to acquire a Property by Money.
  • IV. Of the natural and instru­mental measure of the value of things.
  • V. How Money is equal to all things.
  • VI. Money is for buying, and hin­ders not but helps Permuta­tion.
  • VII. Money the Instrument of Charity and Sacrifices as well as our Necessities.
  • VIII. Of the difference between Moneys advanced to be used in Commerce at Land, and that which is advanced at Sea.
  • IX. Of Moneys advanced by way of Bottomerie when the Con­tract hath its inception.
  • X. Of Moneys sent on Shipboard, and the Vessel is wreckt, where the Lender shall bear share of the loss, and where not.
  • XI. Of Moneys taken up by the Master, where the same shall oblige the Owners, and where not.
  • XII. The derivation and institu­tion of this sort of Loan, and for what causes.
  • XIII. Of the several wayes of ta­king up of Moneys by way of Bot­tomerie, real and feigned.
  • XIV. Moneys so advanced, whe­ther gain ought to be bounded, or otherwise left to the will of the Lender.
  • XV. Of Usura Maritima, how reasonable the same stands at this day.
  • XVI. Of Moneys advanced to a considerable profit called usu­fruit, being both honest and ho­nourable.

I. MOney is one of those things which they who want, want all other things but words to re­proach their bad Fortune. But sometimes it is the poli­cy even of Rags and Poverty it self to undervalue that which it cannot have, and to convert that which it hath (though never so mean) into an esteem; and then to lodge as much pride in a Tub, as Alexander could in [Page 277] a Palace, though it could not tempt him to a change of Condition.

Nil habet infaelix paupertas durius in se,
Quam quod ridiculos homines facit—

No wonder therefore, seeing Rich men will be obsti­nate to hold to their advantages, that deformed Pover­ty (which mixes with them in the same frame as a sha­dow to set off their Colours the better) would have the Rich to descend to them; and that instead of setting out Moneys by way of Bottomery, Usury and the like, they would not have any such thing as money at all, but would have all things reduced into a state as is afore men­tioned. L. 1. Cap. 1. §. 1, 2, 3.

It cannot be denyed, but that we all live by the na­tural or intrinsique value of things; but the way to come by them is by an Instrument of civil value, which is Money; instead of Community therefore we now have Commerce: which Commercium is nothing else but Communio mercium; but Communion must needs be by the means of another thing that may bear equal propor­tion on both sides, which is Money onely. But now let us hear and if possible satisfie the complaints that are made against it so impatiently.

Where there is great Luxury, there must be likewise great Industry to maintain it, and therefore the Indu­stry of this Civil State, must be greater than that which is in the simple state of Nature: But what is there here too blame, seeing Industry no more than Plenty is in it self a Sin?

II. It is the Answer of Envy or Ignorance, Prima peregrinos obscaena pecunia mores—in [...]ulit—Money is that (say they) which maintains the Trade and Cre­dit of Vice, if that were taken away, we should look after nothing but necessaries, which are virtuous; it makes too nice inequalities and distances, and is not significant enough in the best things: for all the Money in the World is not really worth one penny loaf, which is convertible into our Natures and Substances; it serves [Page 278] onely to assure Fortune, but not Virtue, it is accepted as the measure of all things Natural, Moral, and Divine: for Honour is nothing but ancient Riches Aristotle Polit., and in Morals, Virtus post nummos; This in Religion breeds that root of all Evil, Covetousness: for in a simple state of Nature necessary things must needs be spent within a short time, and the return of the Sun brings a new sup­ply and a Treasure greater than the Indies; Of which One Campanella Monarch. His [...]. makes this Observation, That it was got in blood, sayles home in a Sea of blood, and never rests till it be laid out in blood. This was that which was made the Price of Salvation, even of the Blood of our Blessed Sa­viour, 30 Pieces for that which was worth Thirty thou­sand Worlds; but in the Religion of the first times, Nullo violatus Jupiter auro, as Juvenal hath it.

And if this had not been brought into the World, we should not have so much to discount for at the day of Judgment. Why therfore should that which is con­demned to the obscurity of the Earth, and lodg'd so near Hell, now be made the price of all that which is above the Earth, even a Solo us (que) Coelum? Or why should we be excluded from the Gifts of Nature, un­less we have those of Fortune? Is it not then more rea­sonable that Rich men lose this Instrument of Luxury; than the Poor should lose the necessary means of their subsistence? This is the Plea which is made in forma Pauperis, Et de ipsa paupertate.

Most certain it is, that neither the stupid simplicity of the Woods, nor Poverty it self are any part of Virtue, and therefore are not reckoned Blessings, as Riches were to Solomon, (he who built Gods first Temple, and put his Religion in lustre) and as they likewise were to Numa, from whom Money was called Nummus: He likewise built the first Temple at Rome, and kindled first the Vestal fire, & ferocem populum deorum metu mi­tigavit.

III. We know how God conversed with Abraham who was the first that had Money, and made use of it to buy a Property: It is true, they with whom he inhabi­ted called him a Prince, but that was no argument to [Page 279] him to disown their properties, but for the contrary, lest they should think that Dominion or a right to things was founded in grace.

IV. But to come more close to the Question, and to examine the reason and necessity of this measure; Mo­ney is like a Law or Government, which are all consti­tuted by the same extream necessity; therefore the coun­terfeiting or attempting to destroy any of these by pri­vate means is every where Treason. Now this measure is two-fold, either Natural or Civil, or rather natural, and the Instrument which expresses the natural by equal Permutation: The natural measure is proportioned ei­ther by Want, or Plenty; In Want we consider whether the thing be useful or necessary; things which are ne­cessary are best, but of least price; as a Loaf of Bread is more necessary, but infinitely cheaper than a Diamond. One man hath Cloathes, another man hath Leather; those two possibly have no need one of another, and therefore there will be no Permutation betwixt them; but if one had need of another, then he who were most prest, would come to the price of the other: And therefore Want or Plenty is the measure of estimating things, and is the bond of Society, whereby one man shews he is or may be useful to another; and Nature hath so ordered it, that no man is so Rich who hath not some need of the Poor; and no man is so mean and ab­ject, but he may be some wayes useful to the Rich.

V. The Civil Measure or rather Instrument where­by Money is like the middle term of a Syl­logisine, of which it is said, Quo con­veniunt in ter­tio conveniunt inter se. the Natural expresses it self, is Money, which hath but a feigned value, and therefore it is sometimes higher and lower in esteem as men please; which could not be, if its value were natural which is unalterable. If I have Cloath at such a price, and you have Wines at the same price, then we regarding the same price may make an equal Permutation: Or if I give to you so many pieces of Gold for your Cloath at the same price, the Sale is equal again, whether it be an incovenience that in some Countries Poland and generally in most of those Northern Countries. is sometimes at a higheer value than at another, is not a consideration of this Discourse; for [Page 280] the price of things themselves change more than any Money doth daily.

VI. Money is an invention onely for the more expe­dite Permutation of things; but it doth not follow that men may 'not make any Permutations but by Money, even as well now as if we were in our natural state; if they who digg now in waste Hills had their Harvest of their Beans well gathered in, but had need of Wine for the Stomachs sake, or of Druggs for healths sake, if the Vintner, or Apothecary have no need of Beans; what use will they make of the natuaal value of their Beans with­out Money? Or if need be, what would they do till their Beans are gathered? Money therefore hinders not Permutation and Commerce of natural things, but assists them; nay, it is therefore an Instrument of Instru­ments: for he who hath Money may buy things which he need not use but sell, thereby to get other things af­terwards for his use. There is no Nation or People so barbarous, but have Money or a publique Instrument of Permutation either in Metals or Fish-bones, &c. for it imports not so much of what matter it is, provided it be durable, not counterfeitable, and difficult to come by.

VII. Take away this fungible Instrument from the service of our necessities, and how shall we exercise our Charity, which is a branch of Religion and Justice, as well as of humanity? He who goes to Church passeth as it were thorough two Temples, the Poor at the Porch, and the Temple it self: and the giving at the Porch is called Sacrifice, Offering and Gift, as well as that at the Altar. God would be sacrificed to onely in one Town of the World, Jerusalem: But could that Vide Chap. of Exchange, §. 1. have been, if Money and Money-changers had not been allowed? How could they who came from such re­mote places have by any other means brought their Oxen, Calves, Goats and Doves to the Altar? If there were nothing further to shew, but that one piece, which our Saviour himself coyned miraculously in the mouth of a Fish, it were Argument sufficient that the use [Page 281] of Money may be both good, just, and necessary.

VIII. Things being thus stated, and that Money is both good, just and necessary, it will be demanded loudly, That admitting a reasonable advantage may be made by way of Usury, quo jure it is that an advan­tage upon the same more than what the Law allowes, is taken?

The distinction is great between Moneys lent to be Leg. 3. D. de Naut. faen. l. 1. eod. l. 62. D. de rei Vindic. Locinius, lib. 2. Cap. 4. §. 2. used in Commerce at Land, and that which is advan­ced to Sea. In the first, the Lawes of the Realm have set marks to govern the same, whereby the Avaritious mind is limited to a reasonable profit; The reason of that is, because the Lender runs none, but the borrower all the hazard whatever that money brings forth. But money lent to Sea, or that which is called pecunia Leg. Faen. Naut. leg. peri­culi [...]od. tra­jectitia, there the same is advanced on the hazard of the Lender, to carry (as is supposed) over Sea, so that if the Ship perishes, or a spoliation of all happens, the Lender shares in the loss without any hopes of ever re­ceiving his Moneys; and therefore is called sometimes usura Maritima, as well as Faenus Nauticum; the advan­tage accrewing to the Owners from their Money, arising not from the loan, but from the hazard, which the Len­der runs; the which is commonly reduced to a time certain, or one or more Voyages, according to their se­veral and respective agreements.

IX. If the Bonds be sealed and the money is advanced, if the Ship happens to miscarry by Storm, Fire, Enemy, or any otherwise before the Voyage begun, then the bor­rower runs the Risque, unless it be otherwise provided generally, as that if such a Ship shall not arrive at such Vide Passim ad leg. de Faen. Naut. & DD. leg. Naval. Rhod. a place at such a time, &c. there the Contract hath its inception from the sealing; but if the Condition be, That if such a Ship shall sayl from London to Amsterdam, and shall not arrive there, &c. then, &c. There the con­tingency begins not till the departure. Yet it has been conceived, That if the Master takes up Money accord­ingly and buyes in a lawful Lading, but will happen [Page 282] to endeavour to defraud the Prince or State of their Customes, and puts such Goods aboard by means where­of Vide leg. 3. C. de Faen. Naut. he has incurred a forfeiture of his Ship; in such case the Lender is not obliged to such Hazard.

X. If money be lent on Shipboard by a Merchant su­per Cargoe or a passenger, and before the day of pay­ment the Ship happens to be wreckt or cast away; if there be such a Saver as will admit a Contribution, then the party is not to have his whole money, but is to come into the Averldge: but if the time of payment were Leg. Naval. Art. 17. past before the misfortune happened, then the Lender must be repaid his whole Money free from Contribu­tion.

And therefore by the Laws Maritime, if the bor­rower detains any such lent Moneys beyond the term appointed for the repaying, he shall at his return not only pay the profit agreed on before the Voyage, but also augment the same according to the time that hath Art. 18. accrued since the day of payment.

XI. A Master of a Ship hath no power to take up Money by Bottomreie, in places where his Owner or Owners dwell, unless it were for so much only as his part cometh unto in the said Ship: otherwise he Testatur Vi­nius in Peckium ad. I. L. Nautic. quem vide pag. 95. and his Estate must stand liable to answer the same. But when a Master is out of the Countrey, and where he hath no Owners, nor any Goods of theirs nor of his Leg. Oleron, Cap. 1. Leg. 4. D. de Naut. faen. l. 1. C. eod. leg. qui Romae §. Calli­machus de verb. obl. & ibi Gothfr. & alios. own, and cannot find means to take up by Exchange or otherwise, and that for want of money the Voyage might be retarded or overthrown, Moneys may be taken up upon Bottomerie, and all the Owners are liable there­unto; otherwise he shall bear the loss, that is, the Owners are liable by their Vessel, though the money is not so employed in truth; and the Owners have their remedy against him who they put in trust: but the persons of the Owners are no wayes made lyable by the act of the Master for moneys taken up. Scarborrough and Lyrius, Pasch. 3 Car. in B. R. Rott. 213. Noy 95.

If Owners agree not in setting out the Ship, most voices shall carry it, and then money may be taken up [Page 283] for their part by Bottomerie, or Faenus Nauticum, or by Hypothicating such a proportion of the Ship.

Many Masters of Ships having Ensured or taken up Moneys upon Bottomerie to greater Sums of Money than the value of their Adventure, do wilfully cast away, 16 Car. cap. 6. A good Law, and ought to be encoura­ged; It's pity it was not continued. burn or otherwise destroy the Ships under their charge, the same was made Felony, and the person or person so wilfully doing or procuring the same to be done, were to suffer death.

XII. The signification of this Faenus Nauticum, is by the Dutch called Bomerie, Bodmerie, Bodemerie, Bod­demerij; so variously pronounced from the Keel Joh. Locinij, l. 2. Cap. 4. §. 1. Latches Rep. fo. 252. Scar­borongh's case. or bottom of the Ship upon the parallel, whereof the Rud­der of a Ship doth Govern and direct the same, parte pro toto sumpta, ita primum appellata, cum etiam Lingua Gallorum antiqua & Britanica Bodo vel Bodun fundum aut profundum signet Teste Camdeno in Britannia, p. m. 149. in quem navis fundum, vel ipsam na­vem ejus (que) usum mutuo accepta est pecunia, sed postea latius pro faenore nautico etiam usurpari caepit. And the Money so taken up by the Master is done upon great extremity, and that for the compleating of the Voyage Locinius lib. 2. Cap. 4. §. 1. when they are in distress and want in some Forreign parts; and indeed such taking up is indeed in the nature of Mortgaging the Ship, for le Neife oblige al payment de ceo, &c. And in the Instrument there is a Clause that expresses that the Ship is engaged for the performance of the same.

Moneys that are advanced are upon two Securities, the one is on the bare Ship, the other upon the person of the Borrower, sometimes upon both: The first is where a man takes up Moneys and obliges himself, that if such a Ship shall arrive at such a Port, then to repay (perhaps) double the sum lent; but if the Ship happens to miscarry, then nothing.

XIII. So likewise some will take up Moneys, the condition reciting, Whereas there is such a Ship, naming her, bound to Amsterdam, whereas such a man is Master, (whereas indeed there is no such Ship or Master in na­ture) [Page 284] that if that Ship shall not arrive at such a place within 12 months, the money agreed on to be paid shall be paid; but if the Ship shall arrive, then nothing. The first of these is honourable and just according to the laudable practice among Maritime persons; and though the advantage runs high, as 20, 30, nay some­times 40 per Cent. without consideration of time; for the Moneyes are to be paid within so many dayes after Toto lit. Dig. & Cod. de Naut. faen. & Docto­rum sic hardus in tit. Cod. de Naut. faen. n. 4. the Ships safe arrival; yet in regard the Adventure is born by the Lender, (for if the Ship perishes, the ad­vancer loses) the Lawes and Practice of all Maritime Countries allow of the same. And therefore by the Common Law, if an Action of Debt be brought on such an Instrument, the Defendant cannot plead the Statute Trajectitia pe­cunia propter periculum cre­ditoris quam­diu navigat navis, infinit as usur as capere potest; upon which Law it was ob­served by Anianus, Quia Maris periculo committitur quant as conve­nerit usur as hanc pecuniam dare Creditor potest. of Usury. And so it was adjudged where one Sharpley had brought an Action of Debt on a Bond for Moneys taken up upon Bottomery; The Defendant pleads the Statute of Usury, and shewed, that a certain Ship called the made a Voyage to Fish in New­found Land (which Journey might be performed in eight months) and the Plaintiff delivered 50 l. to the Defen­dant to pay 60 l. at the return of the Ship to D, and if the said Ship by Leakage or Tempest should not re­turn from Newfound-Land to D, then the Defendent should pay the principal money; and if the Ship never returned, then nothing to be paid. Upon Trin. 6 Jac. in B. R. 2. Cro. 258. Sharpley versus Harroll. Demurrer it was adjudged the same was not Usury: for if the Ship had stayed at Newfound-Land 2. or 3. years, yet at her return but 60 l. was to be paid, and if she never return­ed, then nothing. Verum enim vero hie pro­priè non versari damnatum foenus sed compensationem aliquam periculi, quod creditor contra naturam mutui in se recepit patrim. Johannes Locinius, li [...]. 2. Cap. 4. §. 1. & 2.

The other advance which is upon a fictitious suppo­sition of a Ship and Master, where indeed there is no such in Nature, is more unconscionable, the same be­ing the common practice that's used amongst the Ita­lians, and now on this side the Water: The same is as [Page 285] to internal Right unjust, and cannot now be determin­ed, since it was not long since adjudged C. B. Hill. 22, 23 Car. 2. that such Contract was good, according to the Common Law of this Realm, and that on a Special Verdict.

XIV. Most certain it is, that the greater the danger is, if there be a real adventure, the greater may the profit be of the Moneys advanced: * And so hath the Vide Carolus Molinaeus de usur. q. 3. n. 92. ait, hoc appro­bant. omnes Theologi ut Cre­ditor possit ali­quid accipere ultra fortem pro susceptione peri­culi. But sure­ly that must be upon a real venture. same been the Opinion of Civilians, and likewise some Divines; though some seem to be of opinion, That any profit or advantage ought to be made of Moneys so lent, no more than of those that are advanced on simple loan, and on the peril of the borrower. However, all or most of the Trading Nations of Christendome do at this day allow of the same, as a matter most reasonable, by reason of the contingency or hazard that the Lender runs; and therefore such Moneys may be advanced se­veral wayes, and a profit may arise so that there runs a peril on the Lender. Cl. Salmasius, cap. 9. de modo usur. fo. 380. 188. 218. Trajectitia pecunia propter periculum creditoris, quamdiu navigat navis, infinit as usur as capere potest. Upon which place Anianus observes, Quia maris periculo committitur in quantas convenerit usur as hanc pecuniam dare Creditor potest. Vide Novel. Const. 106. 110.

There is likewise a second way of advancing of Mo­neys called Usura Maritima, joyning the advanced mo­neys and the danger of the Sea together; And this is obliging sometimes upon the Borrower's Ship, Goods and Person: The produce of which by agreement will advance sometimes 20, 30, and sometimes 40. per Cent. As for Instance, A private Gentleman has 1000 l. ready money lying by him, and he has notice of an Ingenious Merchant that has good Credit beyond Seas, and un­derstands his business fully, applyes himself to him, and offers him 1000 l. to be laid out in such Commodities as the Merchant shall think convenient for that Port or Countrey the Borrower designs for, and that he will bear the adventure of that Money during all that Voy­age; (which he knowes may be accomplished within a year) hereupon the Contract is agreed upon, 6 per [Page 286] Cent, is accounted for the Interest, and 12 per Cent. for usura legitima ejus qui tra­jectitiam pecu­niam trans mare vehendam saeneratur, id est cum periculo suo, centesima est. the Adventure outwards, and 12 per Cent. for the goods homeward; so that upon the return the Lender re­ceives 30 per Cent. which amounts to 1300 l. The Lender in this case hath a good bargain, no question. Now let us see what advantage the Borrower hath.

1. The Borrower prevents the taking up the like Sum at Interest which comes to 6. per Cent, and Bro­cage which comes now in this Age thorough the gene­rosity of the Merchant, and Covetousness of the Serive­ner, at 1. or 2. per Cent. more; and then the same is let out but for 6. months, and then the Scrivener in­evitably at the 6. months end sends his Note, that his Friend expects his Moneys to be yaid in; so that to stop that gapp there must be Continuation, which is at least one per Cent. more, besides the obliging of Friends in Securities.

2. The Assurance prevented, which perhaps may come to between 5 and 20 per Cent. according as the Times are; and common prudence will never suffer a Mer­chant to venture 2. parts of 3. parts of his Estate in one Bottome without assuring.

3. As he shall not have occasion to Ensure, so it may be a great occasion of preventing the common Ob­ligation of his Ensuring of others; the which in a gene­rous Merchant in honour cannot be denyed, the Premeo running pretty reasonable.

4. It prevents the parties running the Risque and danger of the Seas, Enemies, or any other fatal loss, and hath been a means to introduce a mans credit in a short time at lesser charge, if not to put him in in a Con­dition not to be beholding to such a fair, though charge­able means.

And this cannot be Usury by the Lawes of this Realm, for the Risque and Danger that the Lender runs.

[Page 287] VI. There is also another way, but that is both Honest and Honourable, called Usufruite, that is a Stock in a Company or Society which is perpetual; In the East-India, and in some other Companies. 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 [...]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 Pindfold ver­sus Northee, Pasch. 27 Car. 2. in B. R. ad­judged there on a Special Verdict. 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 [Page 289] 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 Rott. Almaign. 3 Ed. 3. Rott. Rott. Claus. 29 Ed. 1. Ex­tract Bruxelles: 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, Dors. claus. an. 16 Hen. 3. n. 20: 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 Rott. Claus: 11 Ed. 2. 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 12 Ed. 3. Memb. 22. in­dors. Rott. Al­maigne. 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 The Parlia­ment having justly, honou­rably and vo­luntarily humbly presented such and many more who are established on his Majestie according to their several limitations. managed for some time was afterward farmed out: The [Page 290] 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. Claus. Anno 5 Ed, 3.

Richard the Second, Anno 20. Farmed out the Subsidy Original. 17 Ed. 3. Rott. 2. 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, Vide the great Case in Mich. 4 Jac. in the Exchequer versus Bates. Lane Rep. fo. 22. 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 would protect them still in the Immunities and Condition she found them. Hereupon their Navigation and Traffique was suspended a while, which proved very advantageous to the English, for they tryed [Page 291] what they could do themselves herein, their adventures and returns proving successful, they took the whole Trade into their own hands, and so divided themselves to Stapters and Merchant-adventurers; the one resi­ding constant at one place, the other keeping their course and adventuring to other Towns and States abroad with Cloth and other Manufactures: This so nettled the Hans, that they devised all the wayes that a discontented people could to draw upon our new Sta­plers or Adventurers the ill opinion of othhr Nations and States: but that proving but of too small a force to stop the Current of so strong a Trade as they had got footing into, they resorted to some other; where­upon they applyed themselves to the Emperour, as be­ing a Body incorporated to the Empire; and upon com­plaint obtained Ambassadors to the Queen to mediate the. business: but they returned still re infecta: Here­upon the Queen caused a Proclamation to be published, That the Merchants of the Hans should be intreated, and used as all other Strangers within her Dominions in point of Commerce, without any mark of distinction.

This enflamed the more, thereupon they bent their Forces more eagerly, and in an Imperial Dyet at Rats­bone they procured that the English Merchants who had associated themselves in Corporations both in Embden and other places should be adjudged Monopolists; where­upon there was a Comitial Edict procured against them that they should be exterminated, and banished out of all parts of the Empire; which was done by Suderman a great Civilian. There was there at that time for the Queen as nimble a man as Suderman, and he had the Chancellor of Embden to second him, yet they could not stop the Edict, whereby our new erected Society of Adventurers were pronounced a Monopoly: Yet Gilpin played his Cards so well, that he prevailed the Imperial Ban should not be published till after the Dyet; and that in the interim his Imperial Majesty should send an Ambassador to England to advertise the Queen of such proceedings against her Merchants. But [Page 292] this made so little impression on the Queen, that the [...]an grew rather rediculous than formidable, for the Town of Embden harboured our Merchants notwith­standing, and afterwards the Town of Stode; but the Hansatiques pursuing their revenge, and they being not so able to protect them against the Imperial Ban, remo­ved and setled themselves in Hamburgh.

This Politique Princess in recompence of their re­venge commanded another Proclamation to be publish­ed, That the Hansatique Merchants should be allowed to Trade into England upon the same Conditions as they formerly did, Provided the English Merchants might have the same Priviledges to reside and Trade peaceably in Stode or Hamburgh; or any where else within the Precincts of the Hans. This so incensed and nettled them, That all endeavours were made to cut off Stode and Hamburgh from being Members of the Hans, or of the Empire: But the Design was suspended till they saw the Success of 88, King Philip having promised to do them some good Offices in the Con­cern.

But the Queen finding that the Hans were not con­tented with that Equality she had offered to make be­twixt them and her own Subjects, but were using such extraordinary means; put forth another Procla­mation, That they should transport neither Corn, Vi­ctuals, Arms, Timber, Masts, Cables, Metals, or any other Materials or Men to Spain, or Portugal. And not long after the Queen growing more redoubled and Fa­mous by the Overthrow of King Philip's Invincible Armada, (as the Pope christned it) the Hans began to despair of doing any good, especially they having about some 60 Sayl of their Ships taken about the River Lis­bon by her Majesties Frigats, that were laden with Ropas de contrabanda. She notwithstanding had thoughts of discharging this Fleet by endeavouring a reconcilement of the differences: but she having intelligence of an Extraordinary Assembly at Lubeck which had purpose­ly met to consult of means to be revenged of her, she [Page 293] thereupon made absolute prize of those 60 Sayl, onely two were freed to carry home the sad Tydings of their Brethrens misfortune. Hereupon the Pole sent a rant­ing Embassador in the behalf of the Hans, who spake the Injuries done to the Hans in a high tone. But the Queen her self suddainly answered him in a higher, with a satisfaction no greater than what she had done to others of the like quality before.

This fortunate Clashing for the 19. per Cent. on the Customes, has proved ever since advantageous for England, our Merchants have ever since beaten a peace­ful and an uninterrupted Trade into High and Low Germany; and by their constant Trade in those Parts have found a way thorough the White Sea to Arch-Angel and Mosco. The return of all which hath since vastly encreased the Riches and Strength of this Na­tion.

V. After the Jewes became Tributary to Rome, Joseph. locutus de Pompeio, lib. 1. de Bello Jud. cap. 5. pag. 720. (which was acquir'd by Pompey Threescore years be­fore the Birth of our Saviour) certain Officers or Com­missioners were appointed by the Romans in all those places where their Victorious Standards had claymed a Conquest, who used to appoint such Officers or Com­missioners to Collect and gather up such Custome-mo­ney or Tribute as was exacted by the Senate. Those that gathered up these Publique payments were termed Publicani Publicanes, and by reason of their Cruel Sigon. de An­tiq. Jure Civum Rom. lib. 2. Cap. 4. and Oppressive Exaction, they became hateful in all Nations.

Every Province had his several Society or Company of Publicans; Every Society his distinct Governour: in which respect it is that Zaccheus is called by the Evangelists, Princeps Publicanorum, the chief Receiver Luke 13. 2. of the Tribute, or chief Publican: And all the Pro­vincial Governours in these several Societies had one chief Master or Superintendant residing at Rome, unto whom the other subordinate Governours gave up their Accounts. These Publicans were hated of all the [Page 294] Roman Provinces, but especially of the Jewes, because though it was chiefly maintained by the Galileans, yet it was generally inclined unto by the Jewes, That Tri­bute Is. Causabon, Exercit. 3. 37. ought not to be paid by them. This Hatred is confirmed by the Rabinical Proverb, Take not a Wife out of that Family wherein there is a Publican, for such are all Publicans. Yea, a Faithful Publican was so rare at Rome it self, that one Sabinus for his honest mana­ging of that Office, in an Honourable remembrance thereof had certain Images with this Inscription, [...], For the Faithful Publican. No mar­vel that in Holy Writ Publicans and Sinners go hand Suton. in Flav. Vesp. c. 1. in hand.

But now the World has been so long used to them, that in all or most Nations the particular Princes or States chuse out the most Sagest and Prudent'st men for that Imployment: And certainly the Customes of this Realm never did return to that great and clear Account as they have done under the Care and Pru­dent management of the present Commissioners: And were Tertullian alive, he would have Recanted that Tertullian (Printed 1609.) de pu­di [...]. Cap. 9. Opinion of his, That none would be a Publican but a Heathen.

VI. Customes are Duties certain and perpetual payable to the King as the Inheritance of his Crown, for Merchandizes transported from and beyond the Seas from one Realm to another. Magna Custuma & antiqua is payable out of Native Commodities, scilicet, Wooll, Woollfels and Hides, and that is certain im­posed.

And this Custome which is called Magna Custuma, is due to the King of Common Right for Four Cau­ses:

1. For leave to depart the Kingdome, and to car­ry Commodities of the Realm out of it.

2. For the Interest and Dominion which the King hath in the Sea, and the Arms thereof.

[Page 295] 3. Because the King is the Guardian of all the Ports within the Realm, & Custos totius Regni.

4. For Whaftage and Protection of Merchants upon the Seas against the Enemies of the Realm and Pyrats.

VII. The Custome which is called Parva Custuma, is a Custome or Duty payable by Merchants Stran­gers, and begun in the time of King Edward the First, when they granted him, that they would pay to him 1 Eliz. Dyer 165. and his Heirs 3 d. in the pound for all Merchandizes Exported and Imported by them, &c. And that the Charter was and may be of great Use, I have here in­serted the same, as it was Faithfully Transcribed out of the Roll in the Tower.

For Merchant Strangers concerning Liberties granted to them.

THe KING, to his 31 Ed. 1. num 44. intus. Archbishops, &c. sendeth Greeting. Con­cerning the good Con­dition of all the Mer­chants of the Kingdoms, Lands, and Provinces underwritten: That is to say, Germany, France, Spain, Portugal, Navarr, Lombardy, Tuscany, Pro­vence, Cathalonia; Our Dukedoms of Aquitain, Tholous, Turein, Flan­ders, Brabant, and all other Lands, and forrein places, by what name soever called, coming into Our Kingdome of England, and there re­maining.

We being very soli­citous, out of Our espe­cial Care, that under Our Dominion, a free­dom of Tranquility, and full Security for the said Merchants may be pro­vided for the future, so as they may the more readily applythemselves [Page 297] to the service of Us, and of Our Kingdome, We graciously answering their Petitions, and or­daining more amply for securing their Conditi­on in form following underwritten, are plea­sed to grant to the said Merchants for Us and Our Heirs for ever.

Imprimis, That is to say, That all Merchants of the said Kingdomes, and Lands, may come from any other place, safe and secure under Our Tuition and Pro­tection into Our said Kingdome of England, and every where with­in Our Dominion, with their Merchandizes of what sort soever, and be unmolested, and quiet concerning Repair­ing publick Walls. Murage, Brid­ges. Pontage, and Pave­ments. Pa­vage, and that within Our said Kingdom, and Dominion, they may Traffique in the Cities, Boroughs and Market Towns, onely in gross, as well with Natives, or Inhabitants of this Our [Page 298] Kingdom and Domini­on aforesaid, as with Strangers Forrein and Domestick; But so, as their Wares vulgarly called Mercery or the SPECIES thereof, they may sell by retail, as for­merly hath been accu­stomed. And that all the said Merchants may carry, or cause to be carried whither they please, their Merchan­dize which they have brought into Our said Kingdom, and Domini­on, or otherwise acqui­red; Except to the Lands of the manifest and no­torious Enemies of Our Kingdom, paying the Customs which shall be due, Wines onely ex­cepted, which shall not be exported out of Our said Kingdom, or Domi­nion, after they have been Imported into Our said Kingdom, or Do­minion, without Plea­sure and special Licence, by any way or means whatsoever.

[Page 299] Item, That the said Mer­chants may lodge in the Cities, Boroughs, & Towns aforesaid, at their own pleasure, and there stay with their Goods, to the content of them who en­tertain them.

Item, That every Con­tract made by the said Mer­chants with what persons soever, and from what pla­ces soever, for what kind of Merchandizes soever, shall be firm and stable, so that neither of the Mer­chants shall depart from, or go back from his bargain, after a Gods-penny is given and received, between the principal persons contract­ing; and if it happen that a Contention arise on the said Contract, there shall be a Tryal, or Inquisition, ac­cording to the Usages and Customs of the Fairs, and Towns where such contract shall be made or begun.

Item, We promise to the aforesaid Merchants, and for Us, and Our Heirs for ever grant, That We by no meanes whatsoever will make, nor suffer to be made any Prize, or Arrest, or de­tention [Page 300] by occasion of Prise, for the future, upon their said Wares, Merchandizes, or other their Goods by Us, or by any other, or o­thers in any case, and ne­cessity whatsoever, against the will of the said Mer­chants, without the price presently paid, for which the said Merchants might sell to others, wares of the like sort for, or otherwise to satisfie them, so as they shall repute themselves con­tented. And that no Ap­praisement or value shall be put upon the said Mer­chants Wares, Merchandi­zes, or Goods, by Us or Our Ministers.

Item, We will, That all Bayliffs, and Officers of Fairs, Cities, Boroughs, and Market Towns, shall do spee­dy Justice to the said Merchants complaining to them, from day to day, without delay, according to the Merchants Law, con­cerning all and every thing which by the said Law may be determined: And if any defect shall happen to be found in any of Our Bay­liffs or Ministers aforesaid, [Page 301] whereby the said Merchants or any of their Factors shall suffer loss, although the Merchant recover his losses against the party in the whole, Yet nevertheless, the Bayliff, or other Ministers of Ours as the fault requires shall be punished; and We grant the said punishment in favour of the Merchants aforesaid, for compleating their right.

Item, That in all kinds of Pleas, saving in the case of Crime, for which the pain of Death is liable to be inflicted, where the Mer­chant shall be impleaded, or he implead another, of whatsoever condition [...]e that is impleaded be of, whether a Forreiner or a Domestick, in the said Fairs, Cities or Boroughs, where there is a sufficient plenty of Merchants of the Lands aforesaid, and Inquisition there ought to be made; Half of the Inquisition shall be of the said forrein Mer­chants, and the other half of honest and lawful men, where the Plea happens to be: And if a sufficient num­ber [Page 302] of the Merchants of the said Lands shall not be found, let those be put in the Inquisition who shall be found fit in that place, and let the residue be of other good and fit men, in the places in which that plaint shall be.

Item, We will, Ordain, and appoint, That in every Market Town and Fair of Our said Kingdom, and else­where within our Domini­on, Our Weight is to be put in a certain place, and be­fore weighing thereof, the Scale to be empty in the presence of Buyer and Sel­ler, and the arms thereof to be equal, and when he hath set the Scale equal, he is forthwith to take off his hands, so that it may remain equal; And that through­out Our whole Kingdome and Dominion, there be one Weight and Measure, both of them sealed with the sign of Our Standard, and that every one may have a Scale of one Quarteroni and un­der, where contrary to the Governour of the said place, or Liberty by Us, or Our Ancestors was not granted, [Page 303] or contrary to the Custom of the Villages and Fairs hi­therto observed.

Item, We will and grant, That some certain faithful and discreet person residing in London, may be appoin­ted a Justice in behalf of the before mentioned Mer­chants, before whom they may plead specially, and more speedily recover their Debts, if the Sheriffs, and Mayors, distribute not to them, day by day, compleat and speedy Justice; that then a Commission be gran­ted to the aforesaid Mer­chants, besides this present Charter, viz. Concerning those [Goods] which are to be conveyed between Mer­chants and Merchants, ac­cording to the Merchants Law.

Item, We Ordain and Appoint, and Our Will and Pleasure is, for Us, and Our Heirs, That this Ordinance and Statute be firmly kept for ever, notwithstand­ing any liberty whatsoever which We or Our Heirs for the future shall grant; the said Merchants ought not to lose their above written [Page 304] Liberties, or any of them: And for and in considerati­on of their obtaining the said Liberties, and free Usa­ges, and Our Prises to be re­mitted to them: All and singular the said Merchants for themselves, and all o­thers on their part, have heartily and unanimously granted to Us that for eve­ry Hogshead of Wine which they shall bring in, or cause to be brought in within Our Kingdome, or Domi­nion thereof; and from whence they are obliged to pay Freight to the Mari­ners, to pay to Us and to Our Heirs, by the name of Custome two shillings over and above the ancient Cu­stoms due, and accustomed to be paid in pence within Fourty dayes after the said Wines are put on shoare out of the Ships.

Item, For every Sack of Wooll, which the said Mer­chants or others in their names do buy, and out of this Kingdom transport, or buy to transport, shall pay fourty pence over and a­bove the ancient Custom of half a Mark, which former­ly [Page 305] was paid. And for a Last of Hides carried out of this Our Kingdom and Do­minion thereof, to be sold, half a Mark over and above that which according to ancient Custome was for­merly paid; and likewise for Three hundred Wooll­fels to be carried out of this Kingdom, fourty pence, be­sides that certain sum which according to ancient Cu­stome was formerly gi­ven.

Item, Two shillings for every Scarlet, and Cloth dyed in grain.

Item, Eighteen pence for every Cloth in which part of a grain-colour is inter­mixt.

Item, Twelve pence for every other Cloth without grain.

Item, Twelve pence for every Quintal of Wax.

And whereas some of the said Merchants deal in o­ther Commodities, as Goods weighed with Avoir-du­pois Weights, and in other

[Page 306] fine Goods, as Cloth of Tarsen, of Silk, of It is supposed it should be Sindo [...]ibus, of Lawn, Cam­brick or other fine Linnen. Cindatis, of Hair, and in di­vers other Mer­chandizes, in Horses also, and other Animals, Corn, and other Wares and Merchan­dizes of different sorts, which cannot easily be put to a certain rate of Custom; The said Merchants have consented to give Us and Our Heirs for ever Twenty shillings Estimation and va­lue of those Wares and Merchandizes, by whatso­ever name they be called, three pence in the pound, upon the Entrance of their Wares and Merchandizes into Our Kingdom, and Do­minion aforesaid, within twenty dayes after such Wares and Merchandizes shall be brought into Our Kingdom, and Dominion aforesaid, and there shall be unladen, or sold. And like­wise three pence for every twenty shillings, at the Ex­porting of what kind so­ever of Wares or Merchan­dizes bought in Our King­dom, and Dominion afore­said, [Page 307] besides the ancient Customs formerly given to Us or to others. And over and above the value and estimation of the said Wares & Merchandizes for which three pence for every twen­ty shillings as aforesaid are to be paid; they are to have credit by Letters, by them to be produced from their Principals or Partners, and if they have none, Let it be determined in this case, by the Oaths of the said Mer­chants, or in their absence, of their Servants.

Moreover, It may be lawful for the Society of the Merchants aforesaid, to sell Wooll to the fellows of the said Society, and likewise to buy the same one of another within Our Kingdom and Dominion, without payment of Cu­stom: Provided that the said Wooll come not to such hands whereby we may be defrauded of Our Customs.

And furthermore be it known, That after the said Merchants have once in any one place within Our Kingdom and Dominion [Page 308] paid our Customs granted, as aforesaid, to Us, for their Merchandizes in form a­foresaid, and thereupon they have their Warrant, they shall be free, and un­molested in all other pla­ces within Our Kingdom and Dominion, from pay­ment of the said Custom for the same Commodities or Merchandizes by the said Warrant, whether such Merchandizes remain with­in our Kingdom, and Do­minion, or are carried out, Except Wines, which with­out Our leave or licence, as aforesaid, are by no means to be Exported out of Our Kingdom.

We will also, and for Us, and Our Heirs grant, That no Exaction, Prise or or Loan, or any other bur­den shall be imposed in any part or measure on the persons of the said Mer­chants, their Merchandizes, or Goods contrary to the form before expressed and granted.

Witness hereto, The Re­verend Fathers Robert Arch­bishop [Page 309] of Canterbury Pri­mate of all England, Wal­ter Bishop of Coventry and Lichfield, Henry de Lacy Earl of Lincoln, Humphrey de Bohun Earl of Hereford and Essex, and Constable of England, Adomarus of Va­lentia, Galfrid of Geynvil, Hugh de le Spencer, Walter de bello Campo Chamberlain of our House, Robert of Bures, and others. Given by Our Hand at Westmin­ster the First day of Fe­bruary.

Pro Mercatoribus Alie­nigenis de Libertati­bus eis concessis.

REX, Archiepis. &c. Salutem. Circa bonum statum omnium Mercatorum subscripto­rum Regnorum, Cerra­rum, & Provinciarum, videlicet, Alemann. Franciae, Ispanioe, Portu­galiae, Navarr. Lumbar­diae, Tusciae, Provinciae, Catholoniae, Ducatus nostri Aquitann. Tho­losan Tatureini Flandr. Brebant. & omnium ali­arum terrarum, & loco­rum extraneorum quo­cunque nomine censean­tur, venientium in Reg­num nostrum Angliae & ibidem conversantium.

Nos precipua cura solicitat, qualiter sub nostro dominio tranqui­litatis, & plene securi­tatis immunitas eisdem Mercatoribus futuris temporibus preparetur: ut itaque vota ipsorum reddantur ad nostra, & Regni nostri Servicia [Page 297] promptiora; ipsorum Petitionibus favorabi­liter [...]nuentes, & pro statu eorundem plenius assecurando, in forma que sequitur ordinan­tes subscripta, dictis Mercatoribus pro no­bis, & heredibus nostris in perpetuum durimus concedenda.

Imprimis, Uidelicet, quod omnes Mercato­tes dictorum Regnorum & terrarum salvo, & se­cure sub tuitione & pro­tectione nostra in dictum Regnum nostrum An­gliae, & ubi (que) infra po­testatem nostram alibi veniant cum Merchan­disis suis quibuscunque, de Muragio, Pontagio, & Pavagio, liberi & qui­eti: quodque infra idem Regnum & Potestatem nostram, in Civitatibꝰ, Burgis & Uillis, Mer­catorijs possint mercari, duntaxit in grosso, tam cum Indigenis, seu Iucolis ejusdem Reg­ni, & potestatis nostre predicte, quam cum A­lieienigenis extraneis [Page 298] vel privatis. Ita ta­men quod Merces que vulgariter Merceriae, vocantur ac Species, minaciatim vendi pos­sint, prout antea fieri consuevit: Et quod omnes predicti Mer­catores Merchandisas suas quas ipsos ad pre­dictum Regnum & Po­testatem nostram addu­cere, seu infra idem Regnum & Potestatem nostram emere, vel a­lias adquirere contige­rit; possint quo volue­rint, tam infra Reg­num & Potestatem no­stram predictam, quam extra ducere, seu por­tare facere, praeter­quam ad terras mani­festorum, & notorio­rum hostium Regni no­stri, solvendo consuetu­dines quas debebunt, Vinis duntaxit excep­tis, que de eodem Reg­no, seu potestate no­stra, postquam infra idē Regnum, seu Potesta­tem nostram ducta fue­rint, sine voluntate no­stra & licentia speciali, non liceat eis educere quoquo modo.

[Page 299] Item, quod predicti Mer­catores, in Civitatibus, Burgis predictis pro volun­tate sua hospitari valeant, & moac U [...]llis rari cum bo­nis suis, ad gratum ipsorum quorum fuerint hospitia sive domus.

Item, quod quilibet Con­tractus per ipsos Mercato­res cum quibuscunque per­sonis, undecumque fuerint, super quocumque genere Merchandisae, initus, fir­mus sit & stabilis; ita quod neuter Mercatorum ab illo Contractu possit discedere, vel resilere, postquam de­narius Dei inter principales personas contrahentes, da­tus fuerit & receptus. Et si forsan super contractu hujusmodi contentio oria­tur, fiat inde probatio aut Inquisitio secundum usus, & consuetudines feriarum, & villarum ubi dictum con­tractum fieri contigerit, & iniri.

Item, Promittimus pre­fatis Mercatoribus pro no­bis, & heredibus nostris, in perpetuum concedentes, quod nullam prisam vel arestationem, seu dilatio­nem occasione prisae de cae­tero [Page 300] de mercimonijs, Mer­chandisis, seu alijs bonis suis per nos, vel alium, seu alios, pro aliqua necessitate vel casu, contra voluntatem ipsorum Mercatorum ali­quatenus faciemus, aut fieri patiemur; nisi statim solu­to precio pro quo ipsi Mer­catores aliis hujusmodi mer­cimonia vendere possint, vel eis alias satisfactio ita quod reputent se contentos, & quod super mercimonia, merchandisas, seu bona ip­sorum per nos, vel mini­stros nostros, nulla appre­ciatio, aut aestimatio impo­netur.

Item, Uolumus quod omnes Ballivi, & Ministri feriarum Civitatum, Bur­gorum, & Uillarum Merca­toriarum, mercatoribus an­te dictis conquerentibus co­ram cis, celerem justitiam faciant de die in diem sine dilatione, secundum LE­GEM MERCATORI­AM, de universis & singu­lis que per eandem Legem poterunt tetminari. Et si forte inveniatur defectus in aliquo Balivorum vel mi­nistrorum [Page 301] predictorum unde fidem Mercatores, vel eo­rum aliquis dileus incom­moda sustinuerint, vel susti­nuerit, licet Mercator ver­sus partem in principali re­cuperaverit dampna sua, ni­chilominus Ballivus, vel minister alius versus nos, prout delictum erigit, pu­niatur, & punitionem istam concedimus in favorem mer­catorum predictorum, pro eorum justitia maturanda.

Item, quod in omnibus generibus placitorum, salvo casu criminis pro quo i [...]i­genda sit poena mortis, ubi Mercatur implacitatus fu­erit vel alium implacitave­rit, cujuscumque conditio­nis idem implacitatus ex­titerit, extraneus vel pri­vatus, in Nundinis, Civi­tatibus, sive Burgis ubi fuerit sufficiens copia Mer­catorum predictarum terra­tum, & Inquisitio fieri de­beat, sit medietas Inquisi­tionis de eisdem Mercatori­bus, & medietas altera de alijs probis & legalibus ho­minibus loci illius, ubi pla­citum illud esse contigerit: Et si de Mercatoribus dicta­rum Cerrarum numerus [Page 302] non inveniatur sufficiens, ponantur in Inquisitione il­li qui idonei invenientur ibidem, & residui sint de aliis bonis hominibus, & idoneis, de locis in quibus placitum illud erit.

Item, Uolumꝰ, Ordinamꝰ, & Statuimus, quod in qua­libet Uilla Mercatoria, & feria Regui nostri predicti, & alibi infra potestatem no­stram, Pondus nostram in certo loco ponatur, & ante ponderationem Statera in presentia Emptoris & Uen­ditoris vacua videatur, & quod brachia sint equalia, & ex tunc Ponderator ponde­ret in aequali, & cum State­ram posuerit in aequali, sta­tim amo [...]eat manus suas ita quod remaneat in aequa­li, quod (que) per totum Reg­num, & potestatem nostram unum sit pondus & una mensura, & signo Standardi nostri signentur, & quod quilibet possit habere Sta­teram unius Quarteroni & infra, ubi contra Dominum loci, aut libertatem per Nos, seu Antecessores no­stros concessam illud non [Page 303] fuerit, sive contra villarum aut feriarum consuetudi­nem hactenus observatam.

Item, Uolumus, & con­cedimus quod aliquis cer­tus homo, & fidel [...]s, & discre­tus London residens, assig­netur Justiciarius mercato­ribus memoratis, coram quo valeant specialiter placita­re, & debita sua recuperare celeriter, si Uicecomites & Majores eis non facerent de die in diem celeris justi­tiae complementum, & inde fiat Comissio extra cartam presentem concessa Merca­toribus ante dictis, scilicet de hijs que sunt inter Mer­ca tores, & Mercatores, se­cundum LEGEM MER­CATORIAM deducen­da.

Item, Ordinamus, & Sta­tuimus, & Ordinationem il­lam statutumque pro Nobis & Heredibus nostris in per­petuum Voluimus firmiter observari, quod pro quacun­que libertate quam Nos vel Veredes nostri de caeter [...] concedimus, prefati Merca­tores supra-scriptas Liber­tates, vel earum aliquam non amittant.

[Page 304] Pro supradictis autem libertatibus & liberis con­suetudinibus optinendis, & Priūs nostris remittendis eisdem saepedicti Mercato­res universi & singuli pro se & omnibus alijs de parti­bus suis, Nobis concordi­ter & unanimiter concesse­runt quod de quolibet Do­lio vini quod adducent, vel adduci facient infra Reg­num, & Potestatem nostram, & unde Marinariis frettum solvere tenebuntur, solvent Nobis & heredibus nostris nomine Custumae, duos So­lidos ultra antiquas Custu­mas debitas, & in Denarijs solvi consuetas, nobis aut alijs infra quadraginta dies postquam extra Naves ad Certam posita fuerint dicta vina.

Item, de quolibet Sacco Lanae quem dicti Mercato­res, aut alij nomine ipso­rum ement, & de Regno nostro educent, aut emi, & educi facient, solvent qua­draginta Denarios de incre­mento, ultra Custumam antiquam dimidiae Marcae [Page 305] que prius fuerat persoluta: Et pro Lasto Coriorum ex­tra Regnum, & Potestatem nostram vehendorum dimi­diam Marcam, supra id quod ex antiqua Custuma antea solvebatur; Et simi­liter de trescentis pellibus Lanutis, extra Regnum & Potestatem nostram, dedu­cendis, quadraginta dena­rios ultra certum illud quod de antiqua Custuma fuerat prius datum.

Item, duos Solidos de qualibet Scarleta, & panno tincto in grano.

Item, Decem & octo de­narios de quolibet panuo in quo pars grani fuerit inter­mixta.

Item, Duodecim dena­rios de quolibet panno alio sine grano.

Item, Duodecim denarios de quolibet Cerae quintal­lo.

Cumque de prefatis Mer­catoribus nonnulli eorum alias exerceant Merchandi­sas, ut de Aberio ponderis, & de alijs rebus, subtilibus [Page 306] sicut de pannis Carsen. de Serico, de Cindatis, de Seta, & alijs diversis mer­cibus, & de equis etiam, ac alijs animalibus Blado, & alijs rebus, & Merchandi­sis, multimodis, que ad cer­tam Custumam facile pon [...] non poterunt, i [...]dem Mer­catores concesserunt dare Nobis, & Heredibus nostris de qualibet libra argenti estimationis seu valoris re­rum, & Merchandisarum hu­jusmodi quocunque nomine censeantur, tres denarios de libra in introitu rerum, & Merchandisarum ipsarum in Regnum, & Potestatem nostram predictam infra Ui­ginti dies, postquam hujus­modi Res & Merchand sae in Regnum & Potestatem nostram adducte, & etiam ibidem eroneratae, sive ven­ditae fuerint; Et Similiter tres denarios de qualibet libra argenti in eductione quarumcunque rerum, & Merchandisarum hujusmo­di [...]mptarum in Regno, & Potestate nostra predictis, ultra Custumas antiquas nobis, aut alijs ante datas. Et super valore, & estima­tione rerum & Merchandi [Page 307] sarum hujusmodi, de quibus tres denarij de qualibet [...] ­bra argenti sicut predicitur sunt solvendi; credatur eis per literas quas de Domi­nis aut socijs suis ostendere poterunt, & si literas non habeant, Stetur in hac par­te ipsorum Meccatorum si presentes fuerint, vel val­lettorum suorum in eorun­dem Mercatorum absentia juramentis.

Liceat insuper Socijs de Societate Mercatu­rum predictorum infra Regnum, & Potestatem nostram predictam, la­nas vendere alijs socijs suis, & similiter emere ab eisdem absque Custuma sol­venda; ita tamen quod di­ctae La [...]ae ad tales manus non deveniant, quod Cu­stuma nobis debita defrau­d [...]mur.

Et praeteria est scien­dum, quod postquam saepe­dicti Mercatores semel in uno loco infra Regnum & Potestatem nostram Custu­mam [Page 308] nobis concessam supe­rius, pro Merchandisis suis in forma solverint supra­dicta & suam habeant inde Warrantum, erunt liberi & quieti in omnibus alijs locis infra Regnum, & Po­testatem nostram predictam, de solutione Custumae hu­jusmodi pro eisdem Mer­chandisis, seu mercimonijs per idem Warrantum, sive hujusmodi Merchandisae in­fra Regnum, & Potestatem nostram remaneant, sive exterius deferantur, Ex­ceptis vinis, que de Regno & Potestate nostra predictis, sine voluntate & licentia no­stra sicut predictum est, nul­latenus educantur.

Volumus autem ac pro Nobis & Heredibus nostris concedimus, quod nulla exactio, Prisa vel Prestatio, aut aliquod aliud onus su­per personas Mercatorum predictorum, Merchandi­sas, seu bona eorundem ali­quatenus imponatur, con­tra formam expressam su­perius, & concessam.

[...] testibus venerabili­bus Patribus Roberto Can­tuariensi [Page 309] Archiepiscopo to­tius Angliae Primatae, Waltero Coventr. & Litchf. Episcopo, Henrie de Lacy, Comite Lincoln. Humfri­do de Bohun Comite He­reford. & Essex, ac Cor­stabular. Angl. Adomar. de Valencia, Galfrido de Geyn­vill, Hugone le de Spencer, Waltero de bello Campo Senescallo Hospitij nostri, Roberto de Bures & alijs. Dat. per manum nostram apud Westm. primo die Febr.

VIII. Subsidy is a Duty payable for Merchandizes Sir John Da­vies in the Case of Cu­stomes. Exported and Imported, granted by Act of Parliament for the life of the King. And are,

1. Ayds and Subsidies payable out of Native Com­modies Exported and Imported.

2. Tunnage, which is a Subsidy out of Wines of all sorts; and Poundage, which is a Subsidy granted out of all Commodities Exported and Imported, except Vide the Stat. 12 Car. 2. of Tunnage and Poundage. Wines and ancient Staple Commodities, and is the 20th part of the Merchandize, Imposts or Duties pay­able for Merchandizes rated and assessed by Parliament; and then they are in the nature of Subsidies imposed by the Kings Prerogative.

The Rates are generally agreed on by the Commons House of Parliament, and are exprest in a Book com­monly called the Rates of Merchandize; that is to say, the Subsidy of Tonnage and Poundage, and the Sub­sidy of Woollen Cloathes or old Drapery, and are sub­scribed with the hand of the Speaker.

IX. All Merchant-Strangers bringing in any sort of [Page 310] Wines, are to pay Thirty shillings in the Tun over and above the Rates which the Natives pay, including Twenty shillings the Tun formerly paid to His Ma­jesty by the name Southampton Duties, for all Wines of the growth of the Levant; for which sort of Wines, the Stranger is also to pay to the use of the Town of Southampton for every Butt or Bipe Ten shillings.

Aliens are like wise to pay the ancient Duty of But­lerage, Vide in tit. Prisage. which is 2 s. per Tun.

Rule, That all such Wines as shall be landed in any of the Out Ports, and Custome paid, and afterwards brought to the Port of London by Certificate, shall pay so much more Custome as they paid short of the Duty due in the Port of London.

For every Tun of Beer to be Exported in shipping Directions on Tunnage. English built in money must be paid Two shillings: And for every Tun of Beer Exported in any other shipping in money six shillings.

X. If there shall happen to be brought or carried out of this Realm any Goods lyable to the payment of Directions in Poundage. Custome and Subsidy which are omitted in the Book of Rates, or are not now used to be brought in or car­ried out, or by reason of the great diversity of the va­lue of some Goods could not be Rated; That in such case every Customer or Collector for the time being, shall and may levy the said Custome and Subsidy of Poundage according to the value and price of such Goods to be affirmed upon the Oath of the Merchant in the presence of the Customer, Collector, Comptrol­ler and Surveyor, or any two of them.

XI. Every Englishman shall pay for every short Directions for the payment of the Subsidy upon Woollen Clothes, or old Drapery. Cloth containing in length not above 28 Yards, and in weight not above 64 l. white or coloured by him to be shipped and carried out of this Kingdom, Three shillings four pence, being after the rate of two far­things and half a farthing the pound weight.

And so after that rate for all other sorts of Clothes [Page 311] of greater length and weight, allowing not above Twenty eight yards, and sixty four pound to a short Cloth; that is to say, for every pound weight over and above sixty four pound, two farthings and a half farthing: and for all other sorts of lesser Clothes to be allowed to a short Cloth; that is to say, every Stran­ger shall pay for every short Cloth cont' in length not above 28 yards, and in weight not above 64 l. white or coloured by him to be shipped or carried out of this Kingdom, Six shillings eight pence, besides the old duty of one shilling and two pence.

And so after that rate for all other sorts of Clothes of greater length and weight; and for all sorts of lesser Clothes to be allowed to a short Cloth: That is to say,

Dorset and Somerset Dozens, Rudge washt, Cardi­nals, Pin-whites, Straites, Statutes Stockbridge, Tavestock, seven of each sort shall be allowed to a short Cloth.

Tauntons, Bridgwaters, and Dunstars, the 5. not ex­ceeding 64 l. in weight; Devon. Dozens containing 12 or 13 yards, in weight 13 l. Five to be allowed to a short Cloth.

Ordinary Pennystones, or Forrest Whites cont' be­tween 12 or 13 yards, and in weight 28 pounds, Short­ing Penystones cont' 13 or 14 yards, and in weight 35 pounds unfreized, Four to be allowed to a short Cloth.

Narrow Yorkshire Kersies Whites and Reds cont', not above 17 or 18 yards, and in weight 22 pound. Hampshire Ordinary Kersies, Newberry Whites, and other Kersies of like making cont' 24 yards, and in weight 28 l. Sorting Hamshire Kersies cont' 28 pound, and in weight 32 pound; Three of them to make a short Cloth.

Northern Dozens, single sorting Penystons cont', between 13 and 15 yards, and in weight 53 pound Frized, Two of them to make a short Cloth.

[Page 312] And the Northern Dozens double; one to be ac­counted for a short Cloth.

All which shall go and be accounted for short Clothes, and shall pay after the rate of the short Cloth before rated, and for over weight 2. farthings and one half the pound.

The New sort of Cloth called the Spanish Cloth, otherwise Narrow List, Western Broad Cloth not ex­ceeding 25 yards in length, and 43 pounds in weight, to be accounted two thirds of the short Cloth before rated.

And for every pound weight exceeding 43 pounds, two farthings and half a farthing the pound weight.

Cloth Rashes alias Cloth Serges cont' 30 yards weigh­ing 40 pound, to be accounted two thirds of the short Cloth before rated.

And for every pound exceeding 40 pound weight, two farthings and half a farthing the pound weight.

And for any other sort of Woollen Cloth of the Old or New Drapery, and not mentioned in that Book, to pay two farthings and half a farthing the pound weight, And for any other sort of Woollen Cloth of the Old or New Drapery and not mentioned, is to pay 2 far­things and half a farthing for the Subsidy of every pound thereof.

CHAP. XIII. Of Impositions Subsequent, Conditional, Temporary, &c.

  • I. Of Impositions on the Manu­factures of France by Lex ta­lionis.
  • II. On Vineger, Perry, Cider and Rape, Customes payable by Deni­zens and Strangers, and Log­wood made Importable.
  • III. On Ships that have not two Decks, and 16 Guns.
  • IV. On Salt, Beer, Cider, Perry, Vinegar, a further Duty.
  • V. Of the Duty called Coynage, and upon what impos'd; and the Temporary Imposition called the Additional Duty.
  • VI. Of Goods particular Import­ed by Aliens; And Rules for petty Customes and other matters relating to Duties.
  • VII. Of Aliens Customes on Fish and other Commodities, and rates upon the same.
  • VIII. Impositions on Forraign Liquors, and Rates on the same.
  • IX. Of Native Commodities, and such as were formerly prohibited may be transported, paying cer­tain Duties.
  • X. Beer, &c. Exported; Skins, Leather, &c. Transportable, pay­ing such Duties—Bulloign and Coyn onely excepted.
  • XI. Of Spices Importable by any Nation.
  • XII. Of Great and lesser Officers Fees, and of Goods not paying one pound Custome in or out, what Fees to be taken.
  • XIII. Voluntary Gifts from some esteemed no Bribes; and Rates about payment of Fees.
  • XIV. Of Allowances for Jury, what.

THere are several Duties imposed subsequent to the Duties payable by the Book of Rates, and over and Subsequent Impositions to the Act of Tunnage and Poundage, and the Book of Rates. above the same; That is to say, on all Ships belonging to the French King's Subjects, which shall lade or un­lade any Goods in this Kingdome, or set on shore or take in any Passenger, to pay 10 s. per Tun; This was an Oliver for a Rowland, the French King having done us the like kindness, by imposing the value of 50 Solz 12 Car. 2. on every English Ship; this complyment lasts but 3. weeks longer then the French Kings, his remov'd, ours drops.

[Page 314] II. So likewise on Vinegar, Perry, Rape, Cider, and Cider-eager imported from Forraign Parts per English, This Collected as the Tunnage and Poundage is directed. shall answer Six pounds ten shillings per Tun; if by Strangers, then but six pounds.

But if they shall Export, then Three pounds ten shil­lings per Tun shall be repaid to the English, and Four 14 Car. 2. cap. 11. For preventing of Fraud. pounds fifteen shillings to be repaid to strangers.

The Statute of Eliz. Cap. prohibiting the Im­portation of Logwood Repealed; and the same may be Imported paying 5 l. per Tun: and in case of Exporta­tion 14 Car. 2. cap. 11. then to be repaid 4 l. per Tun.

III. The Parliament taking likewise again into con­sideration the encouragement of Trading in Ships of force, have imposed on all Goods and Merchandize Im­ported and Exported, from and to the Mediterranean Sea, beyond Malaga, in any Ship that hath not two Decks and 16 Pieces of Ordnance mounted, and two men to each Gun, to pay over and above the Rates im­posed by the Book of Rates one per Cent'; This does not extend to Ships laden with Fish, or half laden with 14 Car. 22. 11. Fish and other Commodities.

V. So likewise on Salt out of Scotland into England, one half-penny per Gallon.

Again, There is imposed on Wines, Vinegar, Cider, and Beer, Ten shillings per Tun; and on Brandy and Strong Waters 20 s. per Tun. For the Coinage Duty, the moneys that arises on this Duty is to be paid at the Custome-House to the Collectors and other Officers, to be by them kept apart from all other Moneys, and paid Quarterly into the Exchequer without Salary or Fee: The Goods are forfeitable for non-payment of this Du­ty; 18 Car. 2. cap. 5. and the same is to be repaid if the Goods are tran­sported within one year.

There is likewise an Imposition of 12 l. per Tun on 22 Car. 2. cap. 3. Spanish Wines, and 8 l. per Tun on French Wines and Vinegar; but that is but temporary, and ends the 24th of June, 1678.

[Page 315] VI. There is also Duties payable by Aliens for Per Act of Nav. 12 Car. cap. 18. Vide the Statutes, and the parti­cular Commo­dities enume­rated there. Goods Imported in Aliens Ships, commonly called Navigation Duties.

So likewise all Goods of the growth, production or Manufacture of Muscovia or Russia, and also of Tur­key.

Note, That in all cases where petty Custome inwards is payable, it is to be understood of the fourth part of Rule. the full Subsidy according to the rates and value in the Book of Rates before the 5. per Cent. is deducted.

Note. Wines of all sorts Imported are to pay Aliens Rule. Vide the Table of Strangers Duties upon Wines. Duties.

Note. That the Nett Subsidy of Vinegar, Perry, Rape, Cider, and Cider-eager both in London and out 14 Car. 2. Vide Table of French Wines. Ports, is the same with the Subsidy of French Wines, payable in London.

VII. So likewise there is a further Imposition cal­led Aliens Custome for all Fish, Fish Oyl, Blubber, Whale-bone, Act of Navi­gation, 12 Car. 2. cap. 18. or Whale-fins, not being caught in vessels belong­ing to Englishmen, are to pay double Strangers Cu­stome.

So likewise Custome and Impost to be paid for seve­ral Act of Trade, 15 Car. 2. cap. 7. Vide Stat. and the parti­culars enume­rated. sorts of salted or dryed Fish not imported in Ships English built, or belonging to England, and not having been stifled and caught in such Ships.

Upon which ACT, Note, That the 5. per Cent. is not Rule. to be allowed out of the Petty Custome.

VIII. There is likewise an Excise or Impost upon Forraign Liquors imported; That is to say, Beer or 12 Car. 23, 24. 22 Car. 2. 4. Ale 6 s. per Barrel; Cyder or Perry the Tun ten shil­lings; Brandy or Strong Waters perfectly made 8 d. per Gallon.

If any of those Goods be landed before those Duties be fully paid and Warrants signed, and without pre­sence 15 Car. 2. cap. 11. [Page 316] of an Officer, they are forfeited, the Informer half.

IX. There is likewise Duties imposed on several Commodities Exported by several Acts of Parliament subsequent to the Act of Tunnage and Poundage.

Coals Transported in English Shipping and Naviga­tion for his Majesties Plantations in lieu of all Custome, shall pay onely for one Chaldron of New-Castle Mea­sure Act for Trade, 15 Car. 2. cap. 7. 1 s. 8 d. For one Chaldron London Measure 1 s. Provided good Security be given for landing the said Coales accordingly.

There are likewise several Native Commodities and Act for Til­lage, 22 Car. 2. cap. 3. Cattle prohibited by divers Acts of Parliament not to be Transported unless sold under such prices; but non obstante they may now be Exported, paying Custome according to the Book of Rates.

X. There is likewise an Imposition on Beer, Ale and 22, 23 Car 2. 20 Car. 2. 5. Mum to be Exported, to pay 1 s. per Tun and no more; But this is but tempore for 6. years.

So likewise Leather of all sorts, Sheep-skins, Calve-skins, Tanned or dressed, non obstante any former Law, paying for each hundred weight cont' 112 l. weight one shilling and no more: This ends in 25th. of March, 1675. and both of them to the end of the next 20 Car. 2. 5. Sessions of Parliament after.

Likewise all sorts of Forraign Coyn or Bullion of Gold or Silver may be Exported without paying any Act for Trade, 15 Car. 2. 7. Duty or Fee for the same, entry being first made in the Custome-House; the like for Diamonds, Pretious Stones, Jewels, and Pearls of all sorts.

XI. All persons whatsoever may Import from any place beyond Sea in English Ships, Mace, Nutmegs, Cynamon, Cloves, into England, Wales, Jersey, Guernsey, paying the Customes thereof. Provided before the la­ding thereof they give notice to the Commissioners or Proclam. Car. Regis, 20 Dec. 1662. 26 Aug. 1663. But see 14 Car. 2. concerning Customes. Farmers of the Customes of the quantity & quality they intend to lade, with the name of the Vessel in which [Page 317] they intend to import the same, and procure a Licence under the hands of the said Farmers or Commissioners, or any 3. of them for the Importing the same.

Note. If Goods are Wreck't, and the Lord seizes them, yet they ought not to pay Custome. Sir Francis Moore's Report, 224. Lord Cobham's Case. The like not long since adjudged in the Common-Pleas (on a Special Verdict found at St. Edmonds-Bury in Suffolk) about Mich. 25, or Hill. 25 & 26 Car. 2.

XII. Fees and Allowances due and payable to the Officers of his Majesties Customes and Subsidies in the Port of London, and the Members and Creeks thereunto belonging; That is to say, to the Officers of the Petty Customes Outwards, Subsidy Outward; Petty Cu­stomes Inwards, Subsidies Inwards, Great Customes, Clerks Fees Inwards and Outwards, the Kings Waiters being in number Eighteen, the Register of the Kings Warrants, the Usher of the Custome-House, Gaugers of French Vessels, Chief Searcher, and his Majesties five Under-Searchers in the Port of London; and the two Searchers at Graves-end, were all set and entred in a Table; the same was settled by the Commons House of Parliament, and signed by the Right Honourable Sir Virtute cujus­dam Ordin. à Dom. Com. Sab­bati 17 Maij, 14 Car. 2. Re­gis. Edward Turner now Lord Chief Baron of his Majesties Court of Exchequer, and then Speaker to the Commons House of Parliament; at which time the Question being put, That for all Goods not paying one pound Custome in or out, there shall be but half Fees taken for all Coc­quets, Warrants, Debentures, Transires or Certificates; It was Resolved in the affirmative.

XIII. Societies or Companies Trading in a joynt stock, and making but one single Entry, the Adventu­rers being many, the Table of Fees does not hinder; but the Officers and Waiters may receive such gratuity as the Company shall voluntarily give.

All Goods under the value of 5 l. in the Book of Rates paying Subsidy the sum of 5 s. or less, shall pass with­out payment of Fee.

English Merchants that shall land out of one Ship at one time (although the receipt of the Subsidy be distri­buted into several Offices) shall not pay any more than for a single entry.

The Goods of Partnership to pass as if the propriety were in one single person.

[Page 318] Fish by English in English shipping or Vessels inwards or Outwards all along the Coast to pay no Fee.

Post Entries inward to pass without Fee under five shillings; if above five shillings and under forty shillings, then six pence: but if the Custome to be paid exceed 40 s, then full Fees.

The Merchant shall pay for all Goods opening that shall be short entred above 10 s. Custome.

The Merchant shall pay for weighing of all Goods shall be short entred above 20 s. Custome.

The Merchant is not to be at any charge if duly En­tred.

XIV. There is likewise to be allowed to the Mer­chants a certain abatement called Tare, for Goods and Tare and Tret, the first is the weight of the Cask, or Bale or Covering wherein goods are packed; the other is a consideration allowed in the weight for emptying and reselling the Goods. Merchandize, the which is reduced into a Table, and cannot be deviated from in any case within the Port of London, without special direction of the Commissioners or Farmers; or in their absence of the consent of the General Surveyors, and Surveyor of the Ware-house, or of two of them at the least, whereof the Surveyor of the Ware-house to be one; and in the Out-Ports not without the consent and advice of the Collector and Surveyor: or where there is no Surveyor, by the Col­lector himself, giving speedy notice to the Commission­ers or Farmers of the reason of so doing.

CHAP. XIV. Of Scavage, Package, Portecage, Ports, Members, Craks, the Port of London, and places lawful to lade and unlade in.

  • I. Scavage what, where payable, and to whom.
  • II. Who pay the same, and how Regu [...]ated and governed.
  • III. Goods omitted in the Sca­vage Table of Rates, how to pay.
  • IV. Of Package, how govern'd, and where payable.
  • V. Where Strangers shall pay as of old.
  • VI. Of Packers, Water-side Por­ters, what Duties Strangers are to pay for shipping out their Goods.
  • VII. Of Ports, Members and Creeks, what are meant and un­derstood by them as in reference to action, lawful or unlaw­ful.
  • VIII. The several Ports, Mem­bers and Creeks in England and Wales.
  • IX. Of the Extent of the Port of London.
  • X. Of the several Keyes, Wharfs and other placès lawfull for landing of Goods.
  • XII. What Goods are Excepted which may be shipped or landed at other places.

I. SCavage is an ancient Toll or Custome exacted by Majors, Sheriffs, &c. of Merchant Strangers for Wares shewed or offered to sale within their precincts, which is prohibited by the Statute of 19 H. 7. cap. 8. in a Charter of King Henry the Second to Canterbury, it is written Scewinga.

The City of London still retain the Custome, of which in an old printed Book of the Customes of London it is there mentioned, and how to be disposed; of which Custome, halfen del apperteyneth to the Sherriffs, and the other halfen del to the Nostys, in whose houses the [Page 320] Merchants boen lodged: And it is to wet that Scavage is the shew, by cause that Merchants shewen unto the Sherriffs Merchandizes of the which Customes ought to be taken ore that any there be sold, &c.

The Scavage that is taken consists of two parts, that which is payable by Denizens, and that which is requi­red of Aliens: And that all persons subject to such 22 H. 8. cap. 8. Duties might not be imposed upon, there are Tables mentioning the particular Duties set up and approved by the Lords Chancellor, Treasurer, President, Privy Seal, Steward, and two Justices of the Kings-Bench and Common-Pleas; and by them subscribed, or any four of them at least: The which Duties are on Goods In­wards and Outwards.

III. Note. All Goods mentioned in the Table of Per Order in K. Charles the First, subscri­bed by William Lord Bishop of London, H Earl of Man­chester, Lord C. J. Brampston, and Lord Lit­tleton. Scavage, and not mentioned in the Table of Rates, shall pay after the rate of one penny in the pound, accord­ing as they are expressed or valued in his Majestie's Book of Rates, and all others not expressed therein, shall pay the same Rates according to the true va­lue.

Note. That all private Baulks 8. Inches square and upwards, are by the 23. Article annexed to the Book of Rates reputed Timber, and valued at 3 d. the foot, 50 Foot making one Load, the value of which is 12 s. 6 d; and the Subsidy for one Load ⅝ of one penny, or one half penny and half one farthing, out of which the 5 per Cent. is to be deducted.

IV. There is likewise another Duty called Package, the which is likewise set and rated in a Table, and the which is taken of all the several Commodities therein mentioned.

All Goods not mentioned in that Table are to pay for Package Duties, after the rate of one penny in the pound, according as they are expressed or valued in his Majesties Book of Rates, and all others not ex­pressed [Page 321] therein shall pay the same rate according to their true value.

For every Entry in the Packer's Book for writing Bills to each entry outward as usually they have done, 12 d.

The Strangers are to pay the labouring Porters for making up their Goods, at their own charge, as alwayes they have done.

Strangers are likewise to pay the Water-side Porters belonging to the Package Office, such Fees and Duties for Landing and Shipping their Goods, as they usually have done within these 10 years.

The Packers Water-side Porters have Tables of Du­ties for landing of Strangers Goods, and for the ship­ing out their Goods; and Goods not mentioned in the Table are to pay Portage Duties as other Goods do of like Bulk or condition therein expressed.

VII. Port or locus Publicus, are those places to Portus qua pub­licus non solum mercibus exone­randis inservit sed ut naves ibi tutum recepta­culum habeant, & jure debito ac securitate fruantur Navigantes quatenus innocuum iter et stationem quaerunt. Hinc Portus & Navalia Privilegio pacis publicae guadent. arg. 1. Leg. 1. §. stationem D. de flum. Cap. 2. jur. Nautic. Sued. C. 1. §. 1. 4 H. 4. 20. [...] which the Officers of the Customes are appropriated, and which contain and include all the Priviledges and guidance of all Members and Creeks thereunto allotted.

By Members, are those places where anciently a Cu­stome-House hath been kept, and Officers or their De­puties attending, and are lawful places of Exportation or Importation.

Creeks are places where commonly Officers are or have been placed by way of prevention, not out of du­ty or right of attendance, and are not lawful places of Exportation or Importation without particular Licence or sufferance from the Port or Member under which it is placed.

[Page 322] VIII. The several Ports and Members as now they Portus est con­clusus locus quo importantur merces & ex­portantur l. 59. de verb. Sign. Alias statio, quod ibi tuto naves stare pos­sint, leg. 1. §. 13. D. de flum. account at the Custome-House, are,

London Gravesend.
  • Leigh.
  • Burnham.
  • West Mersey.
  • East Mersey.
  • Brickley.
  • Wivenhoe.
  • Maintree.
  • Harwieh.
  • Orford.
  • Dunwick.
Blackney and Cley. 
  • Hitcham.
  • Cross Keyes.
  • Wisbeech.
  • Spalding.
  • Fosdick.
  • Wainfleet.
  • Numby Chappel.
  • Thetlethorp.
  • Salt-fleet.

  • Seaton delaval.
  • Blith nooke.
  • Aylemouth.
  • Warnewater.
  • Holy Island.
  • East Marches, contain­ing the Coast of Nor­thumberland, border­ing on Scotland.
Carlisle. West Marches, contain­ing the Coast of Cum­berland, bordering on Scotland.
  • Workington.
  • Ravinglas.
  • Milnthorpe.

  • Pyte of Fowdrey.
  • Graunge.
  • Wyrewater.
  • Preston and Rible Water.
  • Sankey Bridge.
  • Fradsham.
  • South shoare of the River of Mersey to the Red Stones.
  • Hilbree.
  • Dawpoole.
  • Neston.
  • Burtonhead.
  • Baghill.
  • Mostin.
  • Holy-head.
  • Amlogh.
  • Pulhelly.
  • Barmouth.

  • Newport.
  • Fiscard.
  • Haverford West.
  • Tenby.
  • Carmarthen.
  • Lanelthy.
  • North Burrys.
  • South Burrys.
  • Neath or Britton Ferry.
  • Newton.
  • Aberthaw.
  • Penarth.
  • Newport.
  • Chepstow.
Glocester River Severn from Bridge-North to King-Road.
  • Pill.
  • Uphill.

St. Ives. 
  • Penrin.
  • St. Mawres.
  • Truro.
  • Saltash.
  • Stonehouse.
  • Cowsland.
  • Clovelly.
  • Appledore.
  • Biddiford.
  • Tincomb.
  • Starrcross.
  • Beare and Seaton.
  • Topsham.
  • Pouldram
  • Sydmouth
  • Lympson
  • Exmouth
  • Aylmouth.
  • Saltcomb
  • Brixham
  • Torbay
  • Totnes.

  • Bridport.
  • Charmouth.
  • Portland.
  • Lulworth.
  • Swanidge.
  • Wareham.
  • Christchurch.
  • Hinington.
  • Yarmouth
  • Newport.
  • Pagham Point.
  • Selsey.
  • New Haven.
  • Seaford.
  • Winchelsea.
  • Lyd.
  • Rumney.

  • Deale.
  • Rumsgate.
  • Marget.
  • Whitstable.

Note. All the Ports and Havens in England are infra Corpus Comit', and that the Court of Admiralty can­not hold Jurisdiction of any thing done in them. Hol­lands Case, Earl of Exeter, 30 H. 6. And because he held Plea in the Admiralty of a thing done infra Portum de Hull, damages were recovered against him 2000 pounds. Vide Mich. 12 Jac. C. B. Greenway vers' Barber, Godbolt 260, 261.

IX. In regard that the Port of London is of great concern as in relation to the Customes, the extent and Ad Portus in­staurationem quia pub­licae utilita­tis gratia fit omnes subditi loci conferre oper as debent. l. 7. C. de oper. pub. Portus intuitu fluminis quo ambitur, & vectigalis quod ex Navium statione penditur, est publicus & hodie Regalibus accen­situr. §. 2. Inst. de rer. dio. l. 4. §. D. de eod. c. un. quae sunt Rega. limits of the same Port is by the Exchequer settled, which is declared to extend and be accounted, from the Pro­montory or Point called North-Foreland in the Isle of Thanet, and from thence Northward in a supposed line, to the opposite Promontory or Point called the Nase, be­yond the Gunfleet upon the Coast of Essex, and so con­tinued Westward thorough the River of Thames, and the several Channels, Streams and Rivers falling into it, [Page 329] to London-Bridge, save the usual and known right, li­berty and priviledge to the Ports of Sandwich and Ipswich, and either of them, and the known Members 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, Whar [...]s and other places for the lading or landing of Goods,

  • Brewers Key.
  • Chesters Key.
  • Wooll Dock.
  • *Some Stairs on the West side thereof is declared not to be a place for ship­ing or ladding of Goods. Custome-House Key.
  • Porters Key.
  • Bear Key.
  • Excluding the Stairs there, which are de­clared no lawful place for shiping, or landing of Goods or Merchandize.Sabbs Dock.
  • Wiggons Key.
  • Youngs Key.
  • Ralphs Key.
  • *The Stairs there declared unlawful for shipping or landing Goods or Mer­chandize.Dice Key.
  • [Page 330] Smart Key,
  • The Staires there declared no lawful place for shipping and landing of Goods and Merchandizes.Somers Key,
  • Lyon Key,
  • Butolph Wharfe,
  • H [...]mons Key,
  • *The Staires on the East declared un­lawful for shipping or landing of any Goods, &c.Gaunts Key.
  • Cocks Key.Note: One other place betwixt Cocks Key and Fresh Wharfe, called part of Fresh Wharfe, the Staires are declared to be unlaw­ful for shipping or landing of any Goods, &c.
  • 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 [Page 331] 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 Forragn [...]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 [Page 333] 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 Vide Cap. 14. what are law­ful places of landing. 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 Coke 12 part, fo. 17, 18. 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 Fogassaes case, Plowden. Com. fo. 9. 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 [Page 334] 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 Goods or Merchandizes, or any part thereof, so as due proof be first made by Cer­tificate from the Officers of the due entry and payment of the Custome and Subsidy of all such Forraign Goods and Merchandizes inwards with the Oath of the Mer­chants importing the same, affirming the truth thereof, and the name of his Majesties Searcher, or Under-Searcher in the Port of London, and of the Searcher of any other the out Ports, testifying the shipping thereof to be Exported; after all which duly performed in manner before expressed, the moyety of the Subsidy first paid inwards, shall without any delay or reward be repaid unto such Merchant or Merchants who do export such Goods and Merchandizes, within one month after demand thereof, as also the whole addi­tional duty of Silk, Linnen and Tobacco as before is di­rected.

If the Officer shall refuse to pay, (admitting there was no Relief had by way of complaint) whether the Merchant Exporter may not bring an Action against him upon the Debt created in Law, as he that hath a 14 H. 7. Tally may do.

III. And if there be any Agreement now in force, which was formerly made by the late Commissioners of the Customes and Subsidies, with the Merchants Stran­gers or their Factors, or shall hereafter be made by any Commissioners or Farmers of the Customes and Subsidies, or any other power (except by consent of Parliament:) with any Merchant or Merchants Stran­gers or Factors for any Forraign Goods and Merchan­dizes, to be brought into the Port▪ of London, or any other Port or Haven of this Kingdome of England, or Principality of Wales, and to be Exported again by way of Composition; all other Merchants being his Majesties Subjects shall be admitted into the same Com­position, [Page 335] and not to be excluded from any other privi­ledge whatsoever granted to the stranger by any pri­vate agreement or composition, under the same Con­dition and with the same Restriction as shall be made with the Merchant Stranger.

IV. Every Merchant as well English as Stranger that shall ship and export any kind of Wines which formerly have paid all the duties of Tunnage inwards, shall ha [...]e paid and allowed unto them all the Duties of Tunnage paid inward, except to the Englishman 20 s. per Tun, and the Stranger 25 s. per Tun, upon due proof of the due Entry and payment of Tunnage inwards and of the shipping thereof to be Exported to be made as above.

V. If any Merchant, Denizen or Stranger shall Ex­port any Spanish or Forraign Wooll, he shall have li­berty 12 Car. 2. Cap. 32. 14 Car. 2. Cap. 18. so to do with this further condition, That such Spanish or other Forraign Woolls whatsoever be not Exported in any other Ship or Vessel whatsoever, with intent to be arrived beyond the Seas out of the King­dome of England and Dominion of Wales, then only in English Shipping, upon pain of confiscation.

VI. Every Merchant as well English as Stranger, which shall ship or Export any Currants which for­merly were duly entred and paid the Subsidy and Custome inwards, shall have allowed and repaid unto them respectively all the Custome and Subsidy paid in­wards for the same, except 1 s. 6 d. for every Hundred weight to the English, and 1 s. 8 d. and one half penny for every Hundred weight to the Stranger, upon due proof of the due Entry and payment of the Custome and Subsidy thereof inwards, and of the Shipping thereof to be Exported to be made as in the second Article.

VII. If any Merchant having duly paid all Duties inwards for Forraign Goods, and in regard of bad sales shall be enforced to keep the same or any part [Page 336] thereof in his hands after the space of a year shall be elapsed; in this case he or any other person is to be permitted to ship the same out for parts beyond the Seas if they think fit without payment for any Subsidy for the same outwards, upon due proof that the same was duly entred and Subsidy paid inward.

VIII. Every Merchant bringing in any sort of Wines into this Kingdome by way of Merchandize, and shall make due Entries of the same in the Custom-house, shall be allowed 12 per Cent. for Leakage.

IX. Every Hogshead of Wine which shall be run out and not full seven Inches, shall be accounted for outs, and the Merchant to pay no Subsidy for the same.

And by some is conceived that no freight shall be paid for the same, but the Merchant may fling them up to Boyce versus Cole sen. & Cole jun. Hill. 27 Car. 2. in B. R. the Master for Freight, but that should seem hard for non constat any fault in the Master, but the same may be in the Cask, or in the ill stowing (the Master by custome having no charge of the stowing of Wines, especially French, but the same belongs to certain Officers beyond Seas from whence they are imported) besides the Goods be they empty or full take up Tunnage in his Ship, and should all the Wines a Shipboard have the same misfor­tune, it would seem hard; however, it is pity Opi­nion in this case should amount to a laudable Cu­stome.

X. If any Wines shall prove corrupt and unmer­chantable, and fit for nothing but to distil into hot Waters or to make Vinegar, then every Owner of such Wines shall be abated in the Subsidy according to such his damages in those Wines by the discretion of the Collectors of the Customes and one of the Principal Officers.

XI. If any Tobacco or other Goods or Merchandize [Page 337] brought into this Kingdome shall receive any damage by salt water or otherwise, so that the Owner thereof shall be prejudiced in the sale of such Goods, the prin­cipal Officers of the Custome-House, or any two of them, whereof the Collector for the time being to be one, shall have power to choose two indifferent Mer­chants experienced in the values of such Goods, who upon visiting of such goods, shall certifie and declare There is a Book at the Custome-House, in which there is a general value set on all Goods, amongst which Tobacco is there valued. upon their Corporal Oaths first administred by the said Officers, what damage such Goods have received, and are lessened in their true value, and according to such damage in relation to the Rates set on them in the Book of values, the Officers are to make a proportionable abatement [...] the Merchant or Owner, of the Sub­sidy due for the same.

XII. All Merchants Strangers who according to Nor can such Merchants Stranger land their Goods before they have agreed for the Cu­stomes, not­withstanding Charta Merca­toria. the rates and values set in the general Book of Values and Rates, and do pay double Subsidy for Lead, Ti [...], Woollen Cloth, shall also pay double Custome for Na­tive Manufactures of Wooll; and the said Strangers are to pay for all other Goods as well inwards as outwards, rated to pay the Subsidy of Poundage, three pence in the pound, or any other Duty payable by Charta Mer­catoria, besides the Subsidy.

XIII. That the Merchants Trading into the Port of London have free liberty to lade and unlade their Goods at any lawful Keyes and places of shipping Vide Lib. 3. Chap. 14. §. 10. and lading of Goods between the Tower of London, and Lon­don-Bridge, and between Sun-rising and Sun-setting from the Tenth day of September, to the Tenth day of March; and between the hours of Six of the Clock in the Morning, and six of the Clock in the Evening, from the Tenth day of March, to the Tenth of September, gi­ving notice thereof to the respective Officers appointed to attend the lading and unlading of Goods; and such Officer as shall refuse upon due calling to be p [...]sent, he shall forfeit for every default 5 l. the one [...] to the King, the other to the party agrieved, he suing for the same.

[Page 338] XIV. The Merchants of York, Kingston upon Hull, and New-Castle upon Tyne, and the Members thereof, shall be allowed free Custome and Subsidy two of the Northern Clothes and Kersies in ten to be shipped in those Ports in the name of Double Wrappers, as formerly has been there allowed them.

XV. The Merchants of Exceter and other Western parts shall be allowed free of Subsidies one Perpetanae in Ten for a Wrapper, and three Devons Dozens in Twenty for Wrappers, the same to be shipped out of the Ports of Exceter, Plymouth, Dartmouth, Barnstable, Lyme Regis, or the Members thereof.

XVI. All Merchants Transporting any sort of Note. That all these severall allowances are not by Act of Parliament, but purely his Ma­jesties gratious and voluntary gift and benig­nity towards the encourage­ing the Mer­chants and Trade. Woollen whether new or old Drapery, as also all Bayes and Cottons, shall be allowed one in ten for a Wrapper free of Custome and Subsidy.

XVII. Every Merchant shall be allowed upon all other Goods and Merchandize appointed to pay to any the Subsidy of Poundage according to the Rate in the Book of Values, to be Imported, 5. in the Hundred of all the said Subsidies of Poundage so appointed to be paid.

XVIII. The Officers who sit above in the Custome-House of the Port of London, shall attend the service of their several places from 9. to 12 of the Forenoon, and one Officer or one able Clerk shall attend with the Book in the Afternoon during such time as the Offi­cers are appointed to wait at the Waters side, for the better deciding of all Controversies that may happen concerning Merchants Warrants, all other the Officers of the Out-Ports shall attend every day in the Custome-House of every respective Port for dispatch of Mer­chants and Ships, between the hours of 9. and 12; and 2. and 4. in the Afternoon.

XIX. Every Merchant making an Entry of Goods [Page 339] either Inwards or Outwards, shall'be dispatched in such Order as he cometh; and if any Officer or his Clerk, shall either for favour or reward put any Merchant or his Servant duly attending and making his Entries as aforesaid, to draw any other Reward or Gratuity from him then is limited in the Act of Tunnage and Poundage, and the general Book of Values, if the Master Officer be found faulty herein, he shall upon complaint to the Chief Officers of the Custome-House be strictly admo­nished of his Duty; but if the Clerk be found faulty therein, he shall upon complaint to the said chief Offi­cers be presently discharged of his Service, and not per­mitted to sit any more in the Custome-House.

XX. The Lord Major, Commonalty and Citizens of the City of London, their Officers or Deputies for and touching Offices of Package, Scavage, Baleage or Portage of any Goods or Merchandize of Aliens, or their Sons born within this Kingdom or unfreemen, Imported or Exported into or out of the City of London or the Li­berties or Ports thereof unto or from the parts beyond the Seas, for or concerning the receiving or taking of any Fee or Rates heretofore usually taken, for or in respect of the said Offices, or any of them might and may receive and take the same, any thing in the ACT of Tunnage and Poundage, or any other Act or thing to the contrary notwithstanding.

XXI. All ancient Duties heretofore lawfully ta­ken by any City or Town Corporate their Farmers, Deputies or Officers, under the name of Town Cu­stome or the like, for the maintenance of Bridges, Keyes, Harbours, Wharfes or the like, shall and may be received and enjoyed as formerly, any thing in the said Act, or any other Act to the contrary in any wise non obstante.

XXII. The Under-Searcher or other Officers of Gravesend have power to visit and search any Ship out­ward bound, but shall not without just and reasonable cause detain any Ship under colour of searching the [Page 340] Goods therein laden above 3. Tydes after her arrival at Gravesend, under pain of loss of their Office, and ren­dring damage to the Merchant and Owner of the Ship, and the Searcher or Officer of the Custome-House in any of the out-Ports having power to search and visit any Ship outward bound, shall not without just and rea­sonable cause detain such Ship under colour of search­ing the Goods therein laden above one Tyde after the said Ship is fully laden and ready to set sayl, under pain of loss of the Office of such offender, and rendring damage to the Merchant and Owner of the Ship.

XXIII. All Timber in balks which shall be of 8. inches square or upwards that shall be imported or brought from any part beyond the Seas into the Realm of England, Dominion of Wales, Port and Town of Ber­wick, or any of them, shall be rated according to the measure of Timber the foot square 3. d. for the value thereof, and according to that rate shall pay for Subsidy 12 d. in the pound according to Poundage; and all under eight inches square, and above 5 inches square, shall pay for Subsidy according to the Rates mentioned in the Book of Rates for middle Balks, and all of 5. inches square or under shall pay according to the rate of small Balkes.

XXIV. For avoiding of all oppressions by any the Officers of the Customes in any Port of this Kingdom, in exacting unreasonable Fees from the Merchant by reason of any Entries or otherwise touching the ship­ing or unshipping of any Goods, Wares or Merchandize it is ordered, That no Officer Clerk or other belonging to any Custome-House whatsoever, shall exact, require or receive any other or greater Fees of any Merchant or other whatsoever, then such as are or shall be esta­blished by the Commons in Parliament assembled; if any Officer or other offend contrary to this Order, he shall forfeit his Office and place, and be for ever after unca­pable of any office in the Custom-House.

XXV. All Fees appointed to be paid unto the Custo­mer, [Page 341] Comptroler, Surveyor, or Surveyor General in the Port of London, for any Cocquets or Certificate outwards, shall be paid altogether in one sum to that Officer from whom the Merchant is to have his Cockquet or Certi­ficate above in the Custom-House; and after the Mer­chant hath duly paid his Custome and Subsidy and other duties above in the Custome-house as is appointed above by the Book of Rates, he is to be master of and keep his own Cockquet or Certificate untill he shall ship out his Goods so entred when as he is to deliver the same to the Head Searcher, or his Majesties Under-Searcher in the Port of London or other Ports, together with the mark and number of his Goods.

XXVI. The Officers of the Custome-House for the time being shall allow and make unto all persons all such Moneys as are or shall be due unto them for the half Subsidy, and also the Algier Duty of Forraign Goods formerly Exported now due and unpaid.

The Duties and Sums of Money appointed to be paid by the Act of Tonnage and Poundage passed this Par­liament, and by the Book of Rates therein mentioned, and no other shall be paid to his Majesties Officers during the continuance of the said Act upon Goods imported and exported, any Law, Statute or Usage to the con­trary notwithstanding. Nevertheless the duty of Prizage and Butlerage, and the duty of 12 d. of every Chaldron of Sea-Coal exported from Newcastle upon Tyne to any other Port or Ports of this Realm, shall be continued.

XXVII. If any Merchant Denizen born shall happen to have his Goods and Merchandize taken by Enemies 27 Ed. 3. Cap. 13. 12 Car. 2. Cap. 4. or Pyrats at Sea, or perished in any Ship or Ships, the duties being either p [...]id or agreed for, upon due proof thereof may ship out of the same Port the like quantity as shall amount unto the Custome without paying of any thing for the same.

If the Importer shall pay ready money, he shall be al­lowed 10 per Cent. for so much as he shall pay down.

XXVIII. Ships of Warr may be entred and searched 14 Car. 2. Cap. 11. for prohibited and uncustomed Goods, and to bring them a shoar to the Kings Ware-houses, and the Com­missioners [Page 342] or Head Officers may leave aboard Officers to look after them, that none be unladen or imbezelled, on pain of forfeiturc of 100 l. And if Goods are con­cealed a shipboard after such time as the Ship is cleared, to forfeit 100 l; and then any with a Writ of Assistance out of the Court of Exchequer to go in the day time to any place, and enter and seize.

Goods conveyed secretly into Ships and carried away without paying the Subsidy and Duties, the Owners and Proprieters forfeit the double value, except Coals, which only forfeit the double Custome and Duty.

XXIX. There are allowances to be given Mer­chants for defective and damag'd Goods of 5 per Cent. on all Goods imported, and 12 per Cent. on all Wines to be allowed upon debentures; but if they shall ship out less then is in the Certificate, then the Goods there­in mentioned or the value thereof shall be forfeited, and the Owner or Merchant shall lose the benefit of receiving back any of the Subsidy: and Goods shipped out are not to be landed again in England, on pain of forfeiture of those Goods.

All Goods coming out of or carried into Scotland by Land, shall pass thorough Berwick or Carlisle, and pay Customes as others, on pain of forfeiture.

And although that by this Act there are many allow­ances to be made, especially Merchants Denizens, yet the Parliament have ever been so careful as to bound the same, that is, it shall be to such who Trafick in Ships, (which are indeed the Bul work of this Isle;) and there­fore if such Merchandize shall be Transported out in any Gally or Carrack, they are obliged to pay all man­ner of Customs; and all manner of Subsidies, as any Alien▪ but in regard that Herring and Fish are, and have been accounted one of the principal Commodities, and generally finds a vent or Market in those Kingdoms and Countries that usually imploy such sort of Vessels, those Commodities may be Transported in them as well as Ships from any Port, or Harbour within this Realm, without paying any Subsidy or poundage for the same; [Page 343] but then such Fish must be taken by the Natives of the Kingdom and Transported by them, otherwise to pay as Aliens.

And whereas all manner of Woollen Cloaths, as well White as Coloured, unrowed, unbarbed, and unshorne, and not fully dressed, are prohibited by Law Per Letters Patents bear­ing Date 24. of Feb. 27 Car. 2. to be Transported. His Majesty was gratiously pleased to Grant unto Frances Countess of Portland as well for her Alliance in blood, as also for the many Crosses and Ca­lamities which she hath suffered by the loss and Death of her nearest Relations, in his Majesty and his Royal Fa­thers Service, full power for one and thirty years, to Licence the Transporting of such goods, Non obstante such prohibitory Laws, the which is now put in Exe­cution by agreement, and Composition with her Depu­ties at the Custome House.

CHAP. XVI. Of the Right of Passage, of imposing on the Persons and Goods of Strangers for passage thorough the Seas.

  • I. Of the Right of harmless Uti­lity excepted tacitly in the pri­mitive dominion of things.
  • II. Where Passage ought to be open, and where the same might be implicitly provided for in the first institution of Property, and under what Cautions.
  • III. Of the same right as in re­ference to Goods and Merchan­dize.
  • IV. If Passage admitted, whe­ther Tribute or Toll may be imposed.
  • V. Where Imposition may lawfully be laid, and for what causes; And of the Kings Prerogative in that Point.

I. HAving in the foregoing Three Chapters ob­served somewhat of Customes and Impositions laid de facto within the Realm, and that by Acts of Parliament, or the consent of the Three Estates, it may not seem amiss to enquire what Im­position the King of his Prerogative may impose on Strangers and their Goods passing thorough his Ter­ritories and Seas; and in that to enquire of the same as in reference to Persons and Goods.

Beside the right of necessity which seems to be excepted in the first Institution of Dominion, there is another Relique of old Communion, namely, the Right of harm­less Utility; For why should not one (saith De Offic. 1. Cicero) when without his own detriment he may communicate to another in those things that are profitable to the Re­ceiver, and to the Giver not chargeable. Therefore Seneca De Benef. 4. Symps. 7. saith it cannot be called a benefit to give leave to another to light his Fire by yours. We read in Plu­tarch [Page 345] it is not lawful to spoyl our Victuals when we have more then enough, nor to stop nor hide a Foun­tain when we have drunk our fill; nor to abolish the Way marks either by Sea or Land which have been useful to us: So a River as a River is proper to that Prince or that Lord, or that People within whose Do­minion or Royalty it runs, and they may make a Mill on it, (unless it be Common as a High-way) and may Leg. quaeda [...] D. de rer. di­vis. take what Fish the River yields, but the same River as a running Water remained common as to drinking or drawing of it, notwithstanding as to the Fishing and the like it may be peculiar.

II. Again, Lands, Rivers, nay if any part of the Sea be come into the Dominion or Property of any People, it ought to be open to those that have need of Passage for just causes, namely, being expelled by force out of their own Country they seek void places, Bald. 3. cons. 293. or because they desire Commerce with remote Nations; The reason here is the same which hath been mention­ed Lib. 1. Cap. 1. elsewhere, because Dominion might be introdu­ced with a reception of such use §. 3. & 4. Serv. ad. 7. Aen. lit­tus (que) [...] innocuum cujus vindicatio, ait, Nulli possit no­cere. which profits these, and hurts not those, and therefore the Authors of Do­minion are to be supposed willing rather to have it so, then that such a restriction which perhaps in the end may destroy Society: however this hath its quantum, for though harmless Passage may be excepted in the first Institution of Dominion; yet that is to be understood when leave is granted: and though fear of the multitude which is to pass cannot take away that Prince his Right thorough whose Territories or Seas they go; yet it follows Plutarch re­lates, That Cymon going to ayd the Lacedemonians▪ led his Army▪ thorough Co­rinth, being reprehended by the Corinthians for not asking leave of the City: Nam et qui fores alienas puls [...]t, non intrare nisi domini permissu: ac vos inquit, Cleoneorum & Megarensium fores non pulsastis sed perfregistis, consentes omnia patere d [...]bere plus valentibus. However Passage is and must be requested; But in lieu of that, the striking of the Flagg, and lowring the Topsail is in token of that Right due to His Majestie in the Brittish Seas. as naturall that in the Institution of such liberty that Prince or People may provide, and if they have any probable or any reasonable cause interdict their passage [Page 346] till security or Hostages are pledged for their peaceable passage, nay without declaring their reason may inter­dict them absolutely any manner of passage, if there be any other way to pass in safety; And therefore at this day by the Laws of England, the King may interdict any Nation or People whatsoever to pass through his Seas without leave first obtained to that purpose, and Vide Lib. 1. Chap. 4. Vide Mr. Sel­den Mare Clau­sum. may visit all Ships, be they of War or of Trafick that shall occur or be in the same.

III. Nor is passage onely due to Persons but to Mer­chandize also, for no man hath Right That is by the Lawes of Nature, but the Lawes of Nati­ons and those of Countries may. willfully to ob­struct the way of Commerce to any Nation with any other that is remote; because the permission of Trade is for the interest of humane Society, and is not discom­modious to any one, and to that purpose Philo speaks; In Legat Cajum. On the Sea all Ships of burden safely pass according to that right of Commerce which is between all Nations arising from the desire of Natural Society, while they supply one Quomodo au­tem satis digne quis explicet facilitatem ad mutua Commer­cia, nobis da­tam? Ne enim itineris longi­tudo impedi­mentum alio­rum ad alios commetatibus ad ferret, bre­viorum viam, mare scilicet, ubi (que) terrarum disposuit Deus, ad mundum tanquam unum domum commu­niter inhabitantes crebro nos invicem inviserimu [...]; & apud se nata quis (que) alteri com­municans vicissim, commode acciperet res apud illum abundantes; ac sic exiguam te­nens terrae partem, ita tanquam si teneret universam, frueretnr ejus quae uibis sunt bo­nis. Licet itaque; nunc tanquam in communi mensa convivarum unicui (que) ea quae sibi opposita dare alteri longius accumbenti, ac contra quae apud ipsum sunt accipere mann tantum extenta. another mutually which the one wanteth, and the other can spare; for envy hath never invaded either the whole world, or the greater parts thereof. And Plutarch speaking thus of the Sea, This Element hath made our life sociable and perfect, that otherwise would be wild and without correspon­dence; it supplyes our wants with mutual ayd, and by ex­change of things needful it procures fellowship and friend­ship. And the wisdom of God is highly to be admired, who hath not granted all things to every Land, but hath distributed his gifts to several Countries, that men ha­ving need of one another might maintain Society for their Common good, therefore hath he endowed Man with knowledge and understanding to invent and build Ships, to govern and guide them by those Lamps of [Page 347] Heaven and other Instruments of his Divine Wisdome, enabling thereby the Merchant to convey to all what any place affords: according to that of the Poet,

What Nature any Land denyed,
By Navigation is supplyed.

But as the Sea is free and open for Traders, yet ne­vertheless the Passengers are subject to such Restricti­ons, Laws and Ordinances as those Soveraign Princes shall make of force in those places where they have an accession of Property or Soveraignty.

IV. But admitting that such free Passage may be granted as above, whether Tribute may be imposed by him that Rules the Land, upon Merchandize passing by Land or by River, or by part of the Sea, which may be called an Accession of the Land, (that is, the place thorough which they pass, is as much under the abso­lute Jurisdiction of the Prince, as the very Land it self;) Certainly whatsoever Burdens have no relation to the Merchandise, no equity suffers the same to be imposed Vide Strabo, lib. 8. & lib. 16. on the same; neither can Poll-money put on the Inha­bitants to sustain the Charge of the Commonwealth, be exacted of Passengers.

V. Nevertheless, if either to secure the Passengers Goods and Vessels from Pyrats and others, or for the Erecting of Beacons, Light-Houses and other Sea-Marks, and such like, 13 H. 4. fo. 14. there indeed some compensa­tion may be laid upon the Commodities or Ships pas­sing thorough, so that the measure of the cause be not exceeded; Or as my Lord Coke observes in the case of the Halage money, Lib. 5. fo. 63. Case of the Chamberlain of London. it be reasonable; for upon that depends the Justness of Tributes and Toll: And upon those Reasons the Venetian in the Hadriatique, the King of Denmark in the Baltique Sea, does demand the same; Vide the Plea of the Venetian Lawyers at the end of Mr. Selden's Mare Clausum. And the King of England may do the like in the Cham­bers of his Empire, and that by his Prerogative; for the same is not so much compulsory to any to pay, but to them that will take benefit of such accommodation.

[Page 348] Strabo relates, That the Corintbians even from the most ancient of times received Tribute of the Commo­dities, Pereg. l. 1. de jure Fisci, Cap. 1. num. [...]7. which to avoid the compassing of Malea were carried by Land from Sea to Sea. So the Romans re­ceived a price for the passage of the Rhine. But this Right of imposing on Ships and Goods passing tho­rough some Territories is found cruel, especially when they must pass thorough the Territories of a powerful and fierce People, then it is heavy to the Merchant to compound, for it's often done on hard and grievous terms.

The End of the Second Book.

CHAP. I. Of Freedom, Bondage, Slavery, Erile, and Abjuration.

  • I. Of Freedom by the Law of Na­ture, and of Bondage, Slavery, or Captivity introduced by the Law of Nations.
  • II. Of the Actions that subject Man to Bondage.
  • III. Of the Dominion over Slaves, Bond-men and Captives.
  • IV. Of the Cause, or Reason of such Dominion.
  • V. That this Right or Dominion, was not a Law universal.
  • VI. Of Bondage or Slavery, where discontinued by the Christians, and Mahomitans.
  • VII. Of a Servitade at this day, standing with the Laws of a Chri­stian Common-wealth.
  • VIII Of Manumission and Free­dom by the Hebrew and Roman Law, and by the Laws of Eng­land.
  • IX. Of Disfranchising the several ways.
  • X. Of Abjuration and Exile, and what operation it hath.
  • XI. Of Freedom in Cities and Corporations, in reference to Merchants, Traders and Fo­reiners.

I. IN the primitive state of Nature, no men were Ser­vants; L. libertus § 1. D. de statu hominum. Fiunt etiam servi liberi ho­mines Captivi­tate de jure gentium. Bra­cton l. 1. c. 6. Littleton Sect. 175. l. Postlim. § 1. D. de Captiv. yet it is not repugnant to natural Justice, that by the Fact of man, that is, by Covenant or Trans­gression, Servitude should come in; therefore Servitude is brought in by the Laws of Nations.

II. Hence it is, That those that will yield up their persons, or promise Servitude, are accounted Slaves; so likewise all that are taken in Publick War, and brought within the Guards of their Conquerors; nor is trans­gression necessary, but the Lot of all is equal, after the War is begun, even of those whose ill fortune subjected them to be deprehended within the Enemies Bounds; nor are they Servants only themselves, but all their Posterity for ever.

III. The Priviledges of this Right or Dominion, are in­finite; L. & servorum § 1. D. de statu hominum. Apud omnes peraeque gentes, ait Cajus animadvertere possumus dominis in servos vitae necis (que) pote­statem fuisse. Co. Instit. fo. 116. b. B. l. 1. D. de his qui sui sunt juris institit. de his qui sui. since there is no suffering which may not be imposed on such, nor work which may not every way be extorted from [Page 386] them: So that even the Cruelty of Masters became al­most unpunished, till the Municipal Laws of Countreys set Bounds to their rigour and power.

Nor are the persons become theirs only that have the power of them; but also all that they have; for such un­happy persons can have nothing of their own.

Hence it was, That that excellent Law in favour of Leg. Cornelia ff. de Testam. & Leg. Cornel. ff. de vulg. substit. such, was introduced by the Romans, called Legis Corneliae, which was when a Captive, intra presidia hostium, dyed in his Captivity; if he had made a Will, before his being taken Captive; yet such a Captive should in favour of such Will, and for the upholding of the same, be feigned to be dead, and in puncto temporis, immediately before such his being taken Captive; and so by that Legal Fiction of death, his Will became firm and valid, as if he had really dyed without ever being taken by the Enemy. So like­wise In jure Postli­minii Leg. re­tor. & l. in bello. § 1. & l. bon ss. de Capt. & § 4. D. qui­bus mod. jus patr. solvit. And Fortescue conceives, it began ab ho­mine & pro vito introdu­cta [...] servitus E [...] libertas [...] [...]inis [...] naturae quar [...] [...] ab homine [...] redire gli [...]t. ut facit [...] quod li­bertate natu­ralis privatur. Cap 42. if one had been made a Slave; yet if he had retur­ned out of his Captivity, that for the preservation of his Right and Propriety, he was feigned as if he had never been absent, and was immediately redintigrated into his pristine Estate and Condition.

IV. Now all these Priviledges and Immunities were introduced by the Laws of Nations, for no other reason, but that their Captors, tempted by so many Immunities, might willingly abstain from that cruel rigour of slaying their Prisoner.

Hence it is, That the Captors Dominion is extended to the Children; for should such use their highest Right, they would not be born; but Children that are born before that calamity, and were never taken Prisoners, are freed from that unhappy state.

V. Though this Dominion or Right was generally ac­quired in most Nations; yet was not the same a universal Law; for amongst the Jews, refuge was granted to Ser­vants who fell into that calamity by no fault of their own. And the state of Christendome at this day is appa­rent, That Prisoners taken in War, do not become per­fect Slaves, as of old; but only remain in the Custody of the Captor, till Ransoms are paid, whose valuations are generally at the pleasure of the Conqueror; yet persons of Eminent Quality, as Generals, and the like; such persons, Artic. of war Anno 1673. for His Maje­sties Forces, Artic. 24. if taken by a common Soldier, yet he has no [Page 387] advantake by the same; for such a Captive is become Prisoner immediately to that Prince or State under whom the Captor served: But if it be the Lot of an Inferior Soldier to become a Prisoner of War, he is then become absolutely the Captors to dispose of; but he wanting those necessaries in the Field for himself, which he ought B [...]rt in l. nam. & serv. D. de Reg gistis. to provide for his Prisoner, commonly waives that Inte­rest, and generally yields him up as a Prisoner of War to be disposed of by that Prince or State under whom he served.

VI. Slavery in Christendome is now become [...]bsolete; and in these latter ages the minds of Princes and States having as it were universally agreed to esteem the words Slave, Bondmen, or Villain, barbarous, and not to be used; and that such as are taken in War between Christian Prin­ces, In the Wars of the French with the Spa­niards in Ita­ly, a Horse­man was Ran­somed for the 4th of his yearly Pay. Vide Maria na. lib. 27 18. And in the last Belgick War, the Eng­lish dismist all the Flemings that were ta­ken in War, as they did the like with those of Eng­land An. 167 [...]/ [...]. Quam non sit ardua vertus servitium fugisse manu, it is none of the hardest Vertues to embrace Death to avoid Slavety. should not become Servants, nor be sold, or forced to work, or otherwise subjected to such servile things; but remain till an exchange of Prisoners happen, or a Ran­som paid, as afore: Nay, the very Turks and Mahomitans at this day generally observe this among themselves, not to make Slaves of those of the Mahomitan Religion, though taken in War; and that which is most to be admired, a Christian fallen into that miserable state, renouncing his Religion, and becoming a Mahomitan, immediately upon his Circumcision, obtains his Freedom; with a Recom­pence: The Cruelty of those Infidels to those unhappy Persons, together with the reward of renouncing, hath given cause to many a brave Person to become Renegado; the which being considered by the Parliament in England, they made a 16, 17. Car. 2. Cap. 24. It's expired; but His Maiesty is yet graciously pleased to consider the state of his poor Subjects, and thereupon hath appointed a Committee of the Lords of the Privy Council, for the managing of that Affair. provision for such miserable Persons as should be taken by Turkish and Moorish Pyrats.

VII. Though Slavery and Bondage are now become dis­continued, in most parts of Christendome; yet there may be a Servitude which may amount to a labour or suffering equal to that of Captives, the which may be justifiable; for men either through Poverty, and the Yet some of the English Merchants, & others, at the Canaries, do here support this unnatural Custom. So likewise at Virginia, and other Plantations. like, may ob­lige themselves by Contract for maintenance to a Servitude [Page 388] that's perpetual, i. e. for life, and so for years; but at this day there is no Contract of the Ancestor can oblige his Posterity to an Hereditary Service; nor can such as ac­cept those Servants, exercise the ancient Right or Do­minion over them, no nor so much as to use an extraordi­nary rigour, without subjecting themselves to the Law: If an Eye or a Tooth had been struck out injuriously, by Exod. 21. 26, 27. the Hebrew Law Freedom was immediately due; and by the Greeks, if Servants had been ill treated, it was law­ful for them to demand a Sale of themselves to others. At Rome the Statues became Sanctuaries for Servants to im­plore the help of the Governours, against rigour, hun­ger, or any other intollerable injury inflicted by their Ma­sters; and even in London at this day, Servitude amongst the many Causes, as not Inrollment of the Indentures, not Instructing in the Art, want of necessaries infra aeta­tem Vide the Sta­tute of 5 Eliz. who hath pro­vided the like remedy in o­ther places. 14, &c. Cruelty, Hunger, Rigour, immoderate Cor­rection, and the like, are Causes sufficient on a Monstrans, or Petition to the Lord Mayor and Aldermen, to dissolve the Contract, though under Hand and Seal, and to De­cree all, or part of the Dowry, or some given (if any) to the Servant; and if cruelty hath been in the case, to expose the Master to answer dammage to the Party Ser­vant.

VIII. Ulpianus observes after, that by the Laws of Nations Servitude came in, then followed the benefit of Deut. 15. 13. Manumission. By the Hebrew Law, after the expiration The Russians having seized on the Coun­trey of Illyria, and made it their own by Conquest, their Victory pleased them so highly, that thereupon called them­selves by a new Name, Slave, which is in their Langu­age Glorious; but in after time, (that warmer Climate having thawed their Northern hardness, and not ripned their Wits) when they were Conquered, the Italians in derision calling them; (being then their Bond-men) Slaves. Sir Walter Rawleigh, lib. 2. Cap. 17. § 8. of the time agreed on, the Servant was to be manumit­ted, and that not without Gifts, like Londons Freedom; by the Custom of which the Master is always at the charge of Cloathing, and discharging the Chamberlains Fees. By the Roman Law, every Son was in such subjection to his Father, that before he could be released of this sub­jection, and made Free, he should by an Imaginary Sale be sold Three times by his natural Father, to another man, who was called by the Lawyers Pater Fiduciarius; that is, a Father in Trust, and then be bought again by his natural Father, and so manumised by him, and then he became Free: This form of setting Free was by them called Emancipatio: Freedom.

[Page 389] That Roman Darling was to be obtained Three Vide leg. 12. Tabuli Sigonus de jure Roman. l. 1. Cap. 10. ways:

1. By Birth, Justin. Inst. l. 1. tit. de In­genius vide Franc. Silo in Cattilin ar [...] 4. both, or at least one of their Parents be­ing Free; and such were called Cives Originarii.

2. By Gift and Co-optation, when the Freedom was bestowed on any Stranger or Nation, and they were termed Civitate Donati: And so we read, that Caesar took in whole Nations into the Freedom.

Lastly, By Manumission, which was thus; when as the Servant was presented by his Master before the Consul or Praetor; the Master laying his hand upon his Servants head, used this form of words, hunc liberum esse volo; and with that turning his Servant round, and giving him a Cuff on the Ear, he did emittere servum e manu: The Praetor laying then a certain Wand, or Rod, called vin­dicta, Goodwyn An­ti (que) Rom. 4. 33, 34. upon the Servants head, replyed in this manner, Dico eum liberum esse more Queritur; then the Lictor or Serjeant taking the Wand, did strike the Servant on the head, and with his hand he struck 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, Tertullian de de resur. Car [...]. 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: As to some things Vide postea § 9. But a Stranger Born, is no Free-man, Magna Charta Cop. 14. 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, 1 R. 3. so. 4. 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 [Page 390] 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 Bacons Case, 1 Cro. 4. so. 437. this Statute, it has been adjudged more than once, That if an English-man marry a Foreiner, and has Issue by her Stephens Case 2 Car. in the Dutchy. 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, A Geius Noct. Artic. l. 3 c. 17. 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 First granted 17 Joh. Reg. revived 9 H. 3. and since con­firmed above 30 times. 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 The Lord Morley and Monteagles Case; for the supposed Mur­der of one Hastings, 15 Car. 2. Peers, that is by the Nobles. But if he be appealed of Murder upon the prosecution of a [Page 391] Subject, his Tryal shall be by an ordinary Jury of 12 Free-holders; 10 E. 4. 6. 33 Hen. 8. Bro. title tryals. 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 8 Ed. 3. Rot. Parl. m. 7. 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, 28 E. 3. Cap. 3 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. Atamen in poenae nomine lene fuit: Quip­pe relegatus, non exul dicor in illo Ovid. de Trist. li. 2. Elig.

There was a Fourth kind of Banishment, Disfranchising, called relegatio; which was the Exilement only for a sea­son, as that of Ovid's. Adde quod edictum quam­vis immitte minax (que)

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, In London the same is done by exhibiting an Informati­on in the name of the com­mon Serjeant, in the Mayors Court there a­gainst any Ci­tizen that shall justly deserve so great a d [...] honour. 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 [Page 392] fuerunt exilit' per Judicium in Parliamento. So likewise was that of the Banishment of the Earl of Clarendon, who dyed beyond the Seas. 17 Car. 2. Cap. 2.

X. Abjuration, was also a Legal Exile, by the Judg­ment Mr. Selden ob­serves, That in the time of King Henry the First, and of other Kings, both before and after him, that if any man accused of a Capital Crime done at Sea, being publickly called Five times by the Voice of the Cryer, after so many several days assigned, did not make his appearance in the Court of Admiralty, he was Banished out of England; & de mere appurtenant ou Roy d'Angleterre, for 40 years more or less, according to his offence. Mar. Claus. so. 12. 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 34 E. 1 [...]1 H. 4. Bulstrod, 3. part 188. 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 15 E. 3. Fitzh. Petition pl. 2. 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. 'Tis 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. [Page 393] 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. 8. Re. fo. 126. Case City of London.

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 Fo. 124 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 King Edward the 3d. gran­ted to John Falcount de Luca an Apothecary of the City of London, quod ipse omnibus libertatibus quas Cives Civitatis praedict habent in eadem Civitate alibi infra Regnum Angl' nostrum habeat gaudeat & utatur &c. Rot. P