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Jure Maritimo
NAVAL
O R, A
TREATISE
O F
9
f A f
xt% fmxxXx
A N D O F
Commerce.
In THREE BOOKS.
The EIGHTH EDITION, with many valuable
Additions.
By CHARLES MO L LOT, late Barrifter at Law.
LONDON:
Printed for Jo h n W a l t h o e, over-againft the Royal Exchange
in Corn hi I L
>, MDCCXLIV.
^'ADAMSirl, 17
•sV
T O T H E
READER.
TH E Wifdom of God is highly to be ad-
mired, who hath not endowed the other
living Creatures with that Sovereign Per-
fection of Wifdom^ but hath fecured and
provided for them by natural Muniments from Af-
iault and Peril, and other Necefficies : But Man he
formed naked and frail, becaufe of furnifhing him
with Wifdom, Underftanding, Memory, and Senfe,
to govern his Adlions ; endowing him with that pious
Affediion of deiiring Society, whereby one is inclined
to defend, love, cherifh, and afford mutual Aid to
each other : Nor hath he in no lefs wonderful man- Laaanths
ner (infinitely tranfcending all human Wifdom and ^*
Underftanding) created the material World to be fub-
fervient to his Being and Well-being : Yet without
human Underftanding and Reafon did he not build a
Ship, raife a Fort, make Bread or Cloth ; but thefe
came to pafs only by human Arts and Induftry, in
which by the Revolutions of the Celeftial Bodies,
Times and Seafons, Materials and other Neceflaries
are brought forth, by the Alteration of which Men
in their proper Seafons reap the Fruits of their La- Seneca 4. de
hour 5 fo that there is no Society, Nation, Country ^g''^-^'"^'^'"^*
or Kingdom, but ftands in need of another. Hence
it is, that Men knowing each others NecefTaries, are
invited to T'raffick and Commerce in the different Parts
and Immenfities of this vaft World to fupply each
others Neceffities, and adorn the Conveniencies of
human Life.
And
I
ii r^ /^g R E A D E R.
And as God hath fo ordered this wonderful Depen-
dance of his Creatures on each other, fo hath he by
a Law immutable provided a Rule for Men in all
their Adions, obliging each other to the Performance
leg.^ ut -Jim. of that wliich is right, not only to Juftice, but like-
^ n-%^ ^^^^ ^^ ^^' Other Moral Virtues ; the which is no more
but the DiBate of right Reafon founded i?i the Soul of
Man, f/jewing the Neeefjity to be infofne A5i by its Con-*
*venience and Difconvenie?ice in the ratiojial Nature in
. Man, and consequently that it is either forbidden or com--
manded by the Author of Nature, who is the Eternal
Creator of all 'Things. And as God hath imprinted
this univerfal Law in the Minds of all Men, fo hath
he given Men Power (Society being admitted) to
eftablifh other Laws, which proceed 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 Laws of Nations) and which by
the Will of all or many Nations, hath received Force
Vnfque% 2. to oblige, and is proved by a continued Ufe and Te-
Controv.ii,.\. ftiniony of authentick Memorials of learned or Ikilful
Men.
Now by the Laws of Nature every Man is bound
Florentius 3. to profit anothcr in what he can, nor is the fame only
fart. tit. 22. jj^^fui \.^i commendable^ fo true was that faying,
Leg. s'er^'ius Nothing is more ferviceable to Man than Man : But if
D. ^fe/er^\ .Man fl:iall neglect this immutable Law in the aiding
^Cuao Offic. and afiUling his Fellow Citizen, and inquire and dif-
itb.w.depa-'^xxx,^ wliy God hath laid this Neceffity upon him;
and when Opportunity gives leave to take the Benefit
of Wind or Tide (in order to his furnifhing himfelf
or Neighbour with thofe things that adorn human
Life) to difpute the Caufes of their Flux and Reflux,
and how they vary and change ; he not only offends
the Laws of Nature, but affumes a Power of defbroy-
ing Society, and confequently becomes (at the leafl)
a wilful Tranfgrelibr of the Laws of Nations.
And
net 10.
To de KE A DE R. v
And though the Eternal Power hath fo eftablifhed
this Neceflity in Mankind, that every Man fhould
Hand in need of another Man, yet fo great a Providence
is over induftrious Men, that fcarce any Man not dif-
abled by Nature or Accident, Sicknefs, Impotericy,
and the like, but by his Induftry and Pains may earn
more than w^ould fupply his Neceffities ; and fo much
as any Man gets by being truly induftrious above
what fupplies his Neceflities, is fo much beneficial to
himfelf and Family, as alfo an enriching to that King-
dom or State where he relides : From whence it is,
that all Mankind (prefent or to come) are either Tra-
ders by themfelves or others ; and the Ends defigned
by Trade and Commerce, are Strength, Wealth and
Imployment for all forts of People, (where the fame
doth moft flourifh) the End tending to the Advance* Cdh z. hf.
ment, Opulency and Greatnefs of fuch a Kingdom ovM 28.
State.
Conjiantimple (the Throne once of Chriftendom) Anno 1453.
having been facked by Mahomet the Second, became Hiftof^'oTthe
a Place of Defolation as well as Horror, yet he by Monarchy,
granting a free Trade and Religion, foon after repeo-
pled that great (but unhappy) Spot. iMor did Sile?nui
tread amifs in following the Steps of his victorious
PredeceiTor, when having the like Succefs on Tanris
and Grajid CairOy he tranflated the Ferjian and Egyp-
tian Artificers and Traders to that repeopled City,
following the Example of the Roman Virtues. Nor
did our victorious Third Edward deem it an A6t un- Mirror, cap.^:
befeeming his great Wifdom, when he brought in the ^fj^h ^^. ...
Walloons^ whofe Induftry loon eftablifhed the Woollen
ManirfaCture, he vouchfafing to give no lefs a Secu-
rity for the enjoying their then granted Immunities
and Privileges, than his own Royal Perfon. Nor did ^-^^ ^^^.
that politick Princefs fhut her Ears from embracing den"^ Q^£li^
the Offer of thofe diftreffed Burgmdiam (after the ^^^'g'^'' '^"'
, Example of her Great and Royal Predeceflor) who A.EMeteran.
fought Refuge in her Dominions from the rigid Se- f/>''- ^^k-
a verity ^
vi r^ //5^ R E A D E R.
verity of the long-bearded Aka^ who planting them-
felves by her Appointment at Norwich^ Colchejler^ Caii-
terbury^ and other Towns, have of thofe Places (then
only Habitations for Beggars) raifed them now in
Competition with (if not excelling) all, or mofl: of
the Cities in 'England^ for Riches, Plenty, and Trade.-
Nor need we run into the Hiilory of earlier Times to
give an Account of the many Kingdoms and States
that have rifcn by Induftry and Commerce j 'tis
enough if we call our Eyes on our Neighbour the
Hollander^ a Place by relation of Orfellius^ not much
bigger than TorkJJnre^ and fuch a Spot, as if God had
referved it as a Place only to dig Turf out of, for the
accom.modating thofe Countries wherein he hoards
up the Miferies of Winter, it affording naturally not
any one Commodity of ufe ; yet by Commerce and
Trade (the Daughters of Induftry) it is now become
the Store-houfe of all thofe Merchandizes that may
be coiled:ed from tlie rifing to the fetting of the Sun,
and gives thofe People a Name as large and high as
,^ the greateft Monarch this Day on Earth : Nor need
we pafs out of Chriftendom to find Examples of the
like, wlien Veiiice^ Genona^ Lubecky Embderiy and the
reft of the Hanjiatick Towns, once the Marts of the
Vv'orld, till Sloth, Luxury, and Ambition, got with-
in their Walls, and drove it to Ports of Induftry, that
have iince kified and embraced it, the which this Ifle,
by the Influence of his Royal Majefty, hath been no
fmall Sharer in.
Hence it is, that Trade and Commerce are now
become the only Object and Care of all Princes and
Potentates, its Dominion not being acquired l3y the
, ruful Face of War, whofe Footfteps leave behind them
the deep Impreffion of Mifery, Devaftation and Po-
verty, they knowing the Return of Commerce is
Riciies, and Plenty of all things conducing to the Be-
nefit of human Life, and fortifying their Countries
with Fveputution and Strength.
It
To the READER. vii
.It was Trade that gave occafion to the bringing of ^'^'^^ ^666.
thofe mighty Fleets to Sea, as if God had left it to^^^^* ^^'^^'
them to decide by force, (wherein no Age or Time
'caix witnefs the like) the Empire of the World: Hence
It was, (the Advantages being found which arife by
Commerce) that Navigatioji got its Birth into the
World, reducing the feveral Nations on the Earth by
that means to be even as one common Family ; and
when in this Ifle we were ^\'iz\\ in the State of Cani-
bals, it brought in a People that inftruded us in Arts,
Policies and Manners, and taught us Actions no \zi% Camden.
Virtuous than thofe themfelves followed : And altho*
long and difficult it was before that rnighty People
could be broudit over to have Thoug-hts of the Ad- -^^^A^ omnis
^vantages arifing from Commerce and Navigation (they /J//^J[^^fays**
only propounding to themfelves Blood, Slaughter, /'^^^, /^^ i.
Conqueft, the Riches and Spoils of Nations ;) yet ^^'"" ^*
when they entered into the Carthaginian War, a Though they
Quarrel with a People not worth the Oppofition of ^^^ looShips,
a 1 ribune (as they thought) finding that neither Tri- under Cajus
bune nor Confide no nor the Flower of the Roman fjfc^jj^"^
\Army was able to withftand them, or to prevent the as PoUh^s
Invaiion of their Country, and they in the very Bowels obferves.
of the fame, put it to the Queftion, Kome or Carthage
Miftrefs of the World ; they began to confider whence
ind from what Caufes thofe unknow^n^^/V^;zi ihould
withftand the Confcript Fathers and Power of Ro?72ei
and fhould dare to difpute v/ith thofe that had led fo
many captivated Kings in Triumph, and brought fo
many haughty Nations to truckle under their vid:o-
rious Eagles ; at laft 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 Honour, they
foon haftened and equipt, great as their Competitors ;
afterwards Argejitum being won, Carthage became no
more impregnable \ after which with Peace they
a 2 plowed
viii lo the R E A D E R.
* Now the plowed the neighbouring Streights to Tinges^ * Gades^
'^cr'lvTan- ^"d ^^^ Herculean Streights ; nor could any thing be
gier. too difficult aftcrwards, till they arrived on the Britijh
Shore, where beholding her ample Bays, Harbours,
Rivers, Shores, and Stations, (the Jewels and Orna-
ments of that Spot, and having made a Conqueft of
the fame) they fgon cultivated into our rude Natures
the Spirit of Commerce^ teaching and inftrudling us in
thofe polite Ways that fortify a Kingdom by Naval
Force, as the Standard and undeniable Marks of Em-
pire^ and by aiding and teaching us in the driving on
a continued and peaceable Tra6l of Commerce^ we
have fathomed the unknown Depth of the Indian
Shores, uniting, as it were, Extremes, made the Poles
to kifs each other, teaching us thereby, that it was
not the vaft Immenfities of Earth that created Em-
pire, but Situation accompanied with Lidujiryy Com-
merce and Navigation^ that would enable a People to
give Laws to the World : In the Purfuit of whofe
Virtues, this Nation hath not been wanting, and of
f6!lowing their great Direftions in the enlarging our
Fleet 3 for they, when they advanced their Eagles on
the BritiJJo Shore, found us not then without Ships
of Force, time having not been fo envious to this
>%tr(ih, lib. 3. Ifland, as to eat out thofe Records wherein mention
is made, tliat the B?itains accompanied the Cymbriaris
and Gf.uls in their memorable Expedition to Greece^
long before the Incarnation of the World's Saviour 5
and it was from that Center that the mighty Ccefar firfl
drew his Line, and took Thoughts of plowing the
Ocean to find out that warlike People to face his vic-
torious Legions ; when having landed, and finding a
Place adorned by Nature beyond any thing that could
be called great, taught us to maintain the Superiority
of Dominion, that no neighbouring Nation fhould
frequent our peaceable Shores, and thofe Merchants
that came were affigned Places to drive their Com-
merce and Traffick, jealous that any neighbouring
Rival
To //5^ RE A DE R. ix
Rival jfhould kifs his beloved Britaiinia but a Romany ^^^is Towns
and for whom he fetched fo long and tedious a "^e Marffor^
March \ thus in our Infancy, teaching us both De- thofe neigh-
fence and Commerce. And when that mighty Em- ^^^""^ ^^^'
pire began to decline, and thofe remaining Romans
began to moulter and mix among the Natives, and
to become as one People again, then Sloth, Luxury
and Idlenefs (the Forerunners of Ruin) invaded our
Shores by a fatal Stupidity, which fufFered our floating
Caftles (Bulwarks of the Kingdom) to rot in their
negled:ed Brine, and our Ports to be furveyed by Fo-
reign People 3 which fupine Negligence foon fubjed:-
ed us a Prey to our ambitious Neighbours, who no '
fooner finilhed their Conquefls, and fheathed their
devouring Swords, but each (as if infpired by the Ahraha?nus
very Genius of the Place) equip'd out Fleets great as ^^;^^^^;^^^^^
their Competitors, to fecure what they had fo dearly ru^n Ugibus,
won, of whom Story makes mention of the mighty '^'|,"^l °^''
Arthur^ no lefs famous in his warlike Atchievements, lambard,
than in leading his Squadrons ^s (ar 2iS Iceland, bring-
ing thofe Northern People to pay Obeyfance to his
*vid:orious Standard, and acknowledge him as their
Tupream Lord, even from the Britijh to the Ruffian
"Trafts, and by him left to famous Edgar ^ who no inferted in
%oner found his undoubted Right, but refolved to LegesEdivardi
vindicate that Dominion which his Royal PredecefTor ^ards con-
had with fo much Glory acquired, and with fo great firmed by the
Care communicated and remitted down to his Sue- j^ZZT ^-'^
queror.
^ cefTor : With no lefs a Number than four hundred ivir. sMn's
^ Sail of Ships did that mighty Prince at once cover the ^'^^''^ ^^'^'*',
neighbouring Ocean, making them the P or tct^l/h cap! the lo. to
of this Ifle and the adjacent Seas, by which he vin-^'^^e i6.
dicated his Dominions on the Waters, and gave
^Laws in the Chambers of his Empire : Nor did his
SuccefTors Canutus (whom Record makes mention,
that having laid that ancient Tribute, called Dane-
geldy for the guarding of the Seas, and Sovereignty
of them, was emblematically expreifed, fitting on the
a 3 Shore
X 'To //5^ R E A D E R.
Shore in his Royal Chair, while the Sea was flow-'
Matth.wefim. ing, fpcaking, Cu tiicae Bttionis eg, $ tetia ill qiut
iTc''^^' f^^^^ ^^' ?^0 %^^^^> Althrcd, EtheJfred, forget
,^^//^«'i M«r^ the Afferticn of their great Predeceflbrs Dominion and
ciaufum, lib. Sovereignty of the fame, under no lower a Style, than
^'cap.iu gjyp^^^^^^ %is\xs^ aiits ©o\)ernojfi of tfie SDccait
fUtrOttnrtfnO: tf)C 'Bjitift) aijCJC, never fo much as
contefted by any ^Nation whatfoever, unlefs by thofe
that attempted the Conqueft of the entire Empire, in
which that becam-e fubjeft to Fate as well as the other
of the Land : Nor did the fucceeding Princes alfo of
the Norman Race ftart or wave that mighty Advan-
tage in their fucceffive Claims, and maintaining their
Right to the adjacent Sea ; as appeared not long after,
by that famous Accord, made between 'Edward the
Firft, and the French King Philip the Fair^ calling
Coh\.inji. him to an Account for Piracies committed within
joL 142. ^^ BritiJJo Seas ; the Submiffion of the Flemings in
open Parliament in the Second Edward'^ Reign ; and
the Honour or Duty of the Flag^ which the politick
King fohji had above four hundred Years fince chaP
Inter Legei Icngcd by that memorable Ordinance at Hafling^
Marinas fiih therfe dccrccd to take place unlverfally, not barely as
Regis foban. ^ (£li}l!itp, but as a Eitjljt, to be paid cum debita
?• rroerentiay and Perfons refufing to be afTaulted and
taken as Enemies, the fame not only to be paid to
. " whole Fleets bearing the Royal Standard, but to thofe
; Ships of Privilege that wear the Prince's Enfigns or
Colours of Service : Nor was this barely a Decree
X^ritten, but nobly aflerted by a Fleet of no lefs than
500 Sail in a Voyage Royal of his, wherein he failed
for Ireland^ in his way commanding all VeiTels which
he met in the eight circumfluent Seas to pay that
Duty and Acknowledgment. Nor v/as the Third
Edward flow in following the Steps' of his wife Pre-
■ deceflbrs, Vv'hen he equip'd out a.Pto of no lefs than
700 (though on another Occafion) vv'ith 200 of which
he vanquiiiied a Fleet of twice the Number befort
Calais^
7^ /y5^ R E A D E R. xi
Calais^ to the Lofs of 30,000 French. Nor did our
vidiorious Conqueror of the Sepulchre, the Great
Richard^ in his Return from the Holy Land, want a
Navy Royal to attend him home, by the Force of
which he took and deftroyed near 100 more Ships of
the French, And look we but into the mighty Ac-
tions of the fucceeding Princes, we fliall find that all
that ever defigned Empire were zealous in the En-
couragement of Navigation, looking on that Axiom
as undeniable, %// Mare tenet ^ eum necejfe ejje re- Cic. adJtth,
Tium potiri^ and that without which the Britijh So- ^' ^°" ^^'^^
vercignty is but an empty Title.
Nor ought alone the Praifes of tliofe great Mo-
narchs, whofe mighty Care had always been to pre^-
ferve the Reputation of their Empire in their Mari-
time Preparations, to be remembered, but alfo thofe
of our Inhabitants, who always have been as indu-
ftrious to follow the Encouragement of thofe Princes
under whom they flourifhed, and who with no lefs ,^^
Glory and timely Application in Traffick, did con-
ftantly follow the Examples of thofe oiGe7ioa, Por^
tiigaly Spaniards^ Caftilians, and Veiietians, whofe
Fame in Matters of Commerce ought to be enrolled
in Letters of Gold, fince the Ages to come, as well
as prefent, having been doubly obliged to their Me-
mory, the third of which making ufe of a difcon-
tented Native of this Ifle, the famous Columbus, who, Born in Eng^
prompted by that Genius that naturally follov/s a na- ^^^^^ ^^^ ^®"
tive wife Man, difcovered a new World, in whofe Genoa.
Expedition he fathomed unknown Paths, and detedt- ,
ed the AntilleSy Cuba, and 'Jamaica, &c. and the
T^erra Fi?'ma, of the America)! Shore, who taking his
Conjectures from the fpiring of certain Winds from
ihe IVejlern Points by ftrong Impulfe, accompanied
with that Philofophy he attained to, concluded fome
Continent muft needs be hid in thofe unknown Parts ;
his Service being firft offered to his Prince, and re- Hen. 7.
fufed, he was foon after entertained, purely on the
• a 4 Faith
xii 7J //5^ READER-
CampaneL Faith of that noble Princefs Ifabella of ^ain^ who.
-y- 'y/^«- £qj. j^^ooo Crowns (for which ihe engaged her
?'€'wels) received not long after, as many Tuns of
reafure, and to her Huftand's own Ufe,^ in eight or
nine Years Time came above fifteen hundred thoufand
of Silver, and three hundred and fixty Tuns of Gold.
Thus Ingenuity encouraged, though in one fingle
Perfon, hath occafioned Wonders, and from a fmall
Kingdom (as Spain) it hath fince raifed its Head, in
a Condition of bringing all thofe many Kingdoms, and
vaft Immenfities of Earth which they poflefs, under ^
their Proteftion ; putting them once on Thoughts of no
lefs than an Universal Monarchy. We need only
mention Sebajiion Chabot^ a Native of BriJiolJ who dif- |
covered Florida^ and the Shores oi Virginia^ dedicated
to that Virgin Princefs Elizabeth;! Thorriy Elliot y
Oweriy Gwynedy Hawkins^ Cavendijlo; Furbijhery Da^
visy Stadforiy Ralegh y and the incomparable Drake y
who was the firfi: (agreed univerfally) of any Mortal
to whom God vouchfafed the ftupendous Atchiev-
• %ients of incompaffing not this New World alone, but^
New and Old together, twice embraced by that I
mighty Man, who firft making up to Nombre de)
DioSy got fight (with Tears of Joy) of the Southern ^
Seas, the w^hich in five Years after he accomplifh- i
ed, paffing through the Magellan Str eights towards"!
the other IndieSy and doubling the famous Promon-?
tory, he circumnavigated the whole Earth.
Nor ought that truly worthy Captain Sir John
Narborciigh be precluded from having Place after the
mighty Drakey he having not long fince paflTed and
repafled the Magellan StreightSy by vl^hich that wor-
thy Perfon hath performed that Atchievement, which
was never done by any Mortal before. To reckon
up the particular Actions of "John Oxenham (a Sharer
in that mighty Performance of Drake) who drawing
his Vefl^el up to Land, and covering the fame with .
Boughs, paffed the unknown Paths of Land fronv^
Nombre
To the READER, xiii
Timbre de Dios to the South Sea, and there building
a" Finance, enters the Ifle of Pearls^ and from the
Spaniards takes a Treafure almoft beyond Credit ; of
the undefatigable Diligence of Willoughby^ Burroughs^
Chancelery Buffin^ Furbijher^ James Middleton^ Gil--
bert Cumberland^ who plowed up the North-Eajl and
North-Weji Cathaian and China Paflage j of Jones and
Smithy whofe Fortune and Courage was great in thofe
, Parts ; of Poole^ who found the Whale Fifhing ; of
' Captain Bennett the firft Difcoverer oi Cherry-land :, of
Gillian and of Pett^ and Jackman that pafled the Vai--
gates, Scythian Ices, and the River of Ob, as far as
Nova Zembla ; nor of the famous Davies and Woody
who had penetrated to 86 Degrees of Latitude, and
almoft fet their Feet on the Northern Pole, and for
truly valiant the famous Monk, Blake, Lawfon, MineSy
Sandwich , OJfory , and the never-to-be-forgotten
Spragg, and living his Royal Highnefs Tork's vidto-
rious Duke, and the brave Rupert, Men whofe Cou-
rage and glorious Aftions as well in Battles as in the
atchieving of Difcoveries, and pointing out to Places
for an immenfe Improvement in Navigation and
Commerce, ought to be inroUed in the Temple of
Fame as Monuments to fucceeding Ages, of their
mighty and laborious Travails and Induftry. The
Confideration of all which gives fome Sparks of En-
couragement to the writing the enfuing Trad, efpe-
cially when reflecting, that among all Nations, there
is a Common Law which governs the mighty Thing
of Navigation and Commerce ; I had fome Impulfes
more than ordinary to induce me to the fame, efpe-
cially at a time when Navigation and Commerce were
never (from the Ereftion by Divine Inftind: of that
mighty Prototype, the Ark to this prefent Age) in
greater Efteem than now, and by which we have
found vaft and great Eafements and Difcharges from
^ofe royal and juft Rights and Dues which now and
Ipf old were juftly due to thofe that governed this
Empire ;
XIV To the READER.
Empire ; therefore ought by all ways and means to
be fortified and encouraged, be it by whatfoever Art,
Science or Thing that does in the leafl point out to-
wards the fame. Nor was it then wanting in
Thoughts to promote and incite the ProfelTors of the
Law, raifing and ftirring up their Genius to the Ad-
vancement of the Law in this Point ; and though I
believe many have wifhed that fuch a thing might
be, yet none that I can find have ever yet attempted
the fame : Nor is it poffible, unlefs thofe things which
are by Law conflitiited and known^ be rightly feparated
from thofe that are natural', for natural Law is im-
mutably and always the fame, therefore may eafily
be coUedted into Art : But things that come from
Conftitution, becaufe they often vary and change, and
are divers in divers Places, are put without Art, as.
other Precepts of Laws pofitive or municipal -, hence
it was that the Conftitutions and Laws of Rhodes^ for
their Juftice and Equity, got footing amongft the
Romans as well as amongft other the bordering Peo-
ple on the Mediterranean^ Rhodioriim iifq-y rerum me^
llamlfro mortani difciplmc^ Navalis & gloria reraanfit -, yet
^^' when they, as well as the Romans^ became fubjed; to
Fate, they then remained only as Examples of Juftice
h nd M. Ser- and Reafon for others to imitate and follow : An obfe-
jeant Caiiis quious Adorcr of which was the great Juftinian^ who
deribod of the caufcd them to be inferted into the Civil Law ; and
ancitnt Civil though they obtained a Place amongft others of the
and iModern ^^cient Rojnans as well as the Modern, yet have they
Roman Law . ^ ' -^ J
reduced into not all received by Cuftom fuch a Force as may make
cnc, r.nd they ^-^^^y^ Laws, but remain only as they have the Au-
two La wr, one thority in Shew of Reafon, which binds not always
Civil, and the alike, but varics according to Circumftances of Time,
mirburoniy Pl^^ce, State, Age, and what other Conveniences or
one, that is, Inconvenicnccs meet with it ; nor have thofe Laws,
^VulwTKclk- inftituted at Oleron^ obtained any other or greater
iQg on the Force than thofe of Rhodes or Imperial, confidered
StatuteofSew- ^^^jy fj-Qj^^ ^^ Rcafon the which are not become
/./. 51. Laws
To the READER. xv
Laws by any particular Cuftom or Conftitution, but The Article of
only efteemed and valued by the Reafons found in 5"^^""^ \""
J 1 r> ?• nexsdtothem
them, and applied to the Cale emergent. m 12 Ed. i.
'Tis true, that in Rome and fome other Parts of T^^ Inquifi- ^
Italy and Ge?'man)\ and the Kingdom of Portugal:, in boroughT^^E,
all thofe Cafes wherein the municipal Ordinances of 3- ^^^'"f 375-
thofe Countries have failed in providing, the Imperial qu^rvTranfiat-
Laws (if the Cafe be fuch as that it 7io?i Tragiia pec- ed by Rough-
cado, or be not fpiritual) is there made of force ; but ^''"^
there is no other Nation, State or Republic can be
named, where any Part of the Body of thofe Impe-
rial Laws hath obtained the juft Force of a Law,
otherwife than as Cuftom hath particularly induced
it ; and where no fuch fettled Cuftom hath made it
a Law, there it hath Force only according to the
Strength of Reafon and Circumftance joined with it,
or as it fhews the Opinion and Judgment of thofe
that made it, but not at all as if it had any com-
manding Power of Obedience, that is, valet pro ra-
tioned non pro induBo jure 5 pro ratione quantum Reges^ SeUenh Tl-
Dynaftce & Reipublica intra potejiatis fuce fines valere^^^^ °/-l^^
patiuntur : And for Spain it is obferved, Hifpani du- cap. \lt,
plex habent Jus, folum Canoniciim fcilicet & Regium ;
Civile e?iijn (meaning the Imperial Laws) 7ion habet
vim L'egis^ fed rationis. And lince this Kingdom, as
well as moft others, being free from all Subjection to
the Empire, having a conftituted or knov/n Law of
its own, excludes all Imperial Power and Laws, other-
wife than as Cuftom hath varioufly made fome Ad-
miffion, I applied myfelf to the Colle6lion of fuch
Matters, according to my inconfiderable Judgment,
as are either conftituted by the Supream Authority of
the Three Eftates, or that which hath in fome mea-
fure obtained by continued Cuftom the Force of Law
in reference to Matters Maritime, and of Commerce,
as well in Cafes publick as private.
By the firft Part of which I thought it necefliiry,
fince Nature by Traffick hath made us all Kinfmen,
to confider and examine upon what Grounds, and
in
xvl To de RE AD E R.
in what manner, Commerce was firft procured and
eftabliflied, which is by the Laws of Leagues, Em-
baflies, and the like, which is a thing fit to be known -,
{o likewife of what may interrupt the lame, and like-
wife of thofe that have any reference to Seafaring
Caufes in Matters Civil.
In the Profecution of this Worlc^ I have taken care
to refer thofe things, which pertain to the Laws of
Nature^ unto Notions fo certain, that no Man, with-
out offering of Violence to himfelf, may deny them ;
and to afcertain the Truth of fuch, I have ufcd the
Teftimonies of fuch Authority as in my weak Judg-
ment are of Credit to evince the fame ; and as to
that Law, which we call the Law of Will, or Com-
mon Confent, or the Law of Nations, for that which
cannot by fure Confequence be deduced out of iiire
Principles, and yet appears every where obferved,
muft needs have its Rife from free Will and Confent,
which is that which is called the Law of Natmis ;
both which (as much as poffible) hath been endea-
voured to be kept afunder where the Matter hath re-
quired it. And for the Civil Law, I have afcertain-
ed the feveral Authorities which I have made ufe of,
that is, of the Roma7is^ into three forts, the Pafideois^
the Codes of Theodofius and fiiftiniaii^ the Novel Con-
ftitutions^ and thefe moft excellent furifconfults that
have by their Profoundnefs of Judgment illuftrated
the obfcure Paths of the fame Law ; the third thofe
moft excellent Perfons who joined Policy to Law, as
Grotius^ Ralegh^ Bacon^ Selden^ and the like. Of
other Pieces, that of Shardius^ intituled. Leges Na-
*vales Rhodioruniy (3 fekotce Rhodiorum^ Pefrus Pekhis
the Zcalander^ Locinius^ Viniiis^ that of Okf^on col-
leded by Garafas alias Ferrandy and Cleriach
As to thofe Matters that have paffed the Pikes at the
Common LaWy I have as carefully as poffible, referred
to their feveral Authorities. In the whole Work I
have no where medled with the Admiralty or its Ju-
rifdidtioa
To the READER. xvii
rifdidtion (unlefs by the by, as incidently falling in with
other Matters) knowing well, that it would have been
impertinent and fancy in me to enter into the Debate
of Imperium meruniy Imperium mixtum^ JurifdiBio it is called
Jimplex^ and the like, and of the bounding out of Ju- ^f^/''-"'"* ^^'
rifdidtions, which in effedt tends to queftion the Go- ceeds froin the
vernment, and trip up the Power that gives Laws and ^"^^ °"^y *^^
Proteftion to us ; fince all that can be faid, as well on no^ from^an/
the one fide as the other, hath been fo fully and learn- fig>»t inherent
edly handled and treated of by feveral worthy Perfons ^u^^^T^j^
(that have indeed faid all that can be faid) but more Conji. Prin-
efpecially in that famous Dilpute not long fince before "^' ^°^® ^^f
His Sacred Majefty in Council, where all the moHu Ca/e M*
elaborate and ingenious Reafons that could be drawn ^arjhalfea.
by the Skill of a learned Civilian, were there afferted
in vindicating the Admiralties Jurifdiftion, by the
Judge of the fame. Sir Leoline JenkinSy in anlwer of
whom was produced that Great Good Man the Lord
Chief Juflice Haky who as well by Law pofitive as
other his great Reafons, foon put a Period to that
Queftion, which during his Days flept, and it may mo-
deftly be prefumed will hardly (if ever) be awaked.
He that hath never fo little to do with the Com-
pafs, though he fits ftill in his Place, does as much
or more than all the other neceflary Noife in the Ship ;
the Comparifon is quit of Arrogance, for it holdeth
in the Defign, it is not meant of the Performance.
And though I well know, that thofe that Ipend
their Time in brewing of Books, are by Seneca com-
pared to petty Painters, that bufy themfelves in copy-
ing out Originals, having this half Verfe of Horace
often thrown in their Teeth,
0 ifnitafores ferviim pecus !
Yet I have this Hope left, that my Faults and Flaws,
like thofe found in the Cuts of Diamonds, may at
this time the eafier efcape under the Excellency of
their Subjed:, or at leaft under that of your Charity.
Charles Molloy.
■— — i*— ■■ .I «M I
THE
CONTENTS
O F T H E
FIRST BOOK.
Chap. Page
i./"^ F Dominion cr Property in general^ and of the
\^ Caufes changing the fame by War i
2. Of "Letters of Mart and Reprisal 25
3. Of Frivateers or Capers 47
4. Of Piracy ^^
5. The Right of the Flag^ as to the acknowledging the
Dominion of the Britifli Seas y^
6. Of the Right of Pr effing or Seizing of Ships or
Mariners for Service publick .97
7. 0/ Dominion eftablifbed by Treaties of Alliance in
general 114
8. Of Alliances unequal^ and of ProteElion 134
9. Of Treaties of Truce, Neutrality, and Peace 141
I o. Of the Immunities and Privileges of AmbaffadorSy^
and other publick Miniflers of State 146
11. Of the Right of delivering Perjonsfiedfor Pro^
teBion 163
12. Of Contribution paid by Places Neuter to both
Armies in War 173
JS- Of the Naval Military Part 18 1
14. Of Salutations by Ships of War^ and Mercha?it-
Men 210
The
rhe CONTENTS.
The Contents of the Second Book.
Chap. Pagi
-t./^^i^ the various Rights and Obligations of
o
Owners and Partners of Ships ^ in Cafes pri-
vate 219
2. M after s of Ships, their ABions conftdered in refe-
rence to Cafes private and publick 229
3. Of Mariners y their fever al Offices and Immunities
and of Barretry committed by them 242
4. Of Freight y Charter-parties and Demorage 254
V Of Wreck 268
6. Of Avaridges and Contributions 278
7. Of Policies of AJfurance 287
8. Of Prifage and Butler age 300
9. Of Pilots, Wharfage, Primage, Avaridge, Load-
manage 304
10. Of Bills of Exchange 307
1 1. Of Monies advanced by way of Bottomry, or Foenus
Nauticum 353
12. Of Impofitions called Great Ciftoms, Petty Cu-
fioms, and Subfidies 363
13. Of Impofitions fubfequent, conditional, temporary,
&c. 385
14. OfScavage, Package, Porterage, Water-Baillage,
Ports, Members, Creeks, the Port of London,
• a77d Places lawful to lade and unlade in 391
15. Of Provifons and Allowance made notwithfiand-
ing the feveral Claufes in the A5ts for the Cu-
ftoms 402
16. Of the Right ofPaffage, of impofing on the Per-
fons and Goods of Strangers for Paffage through
the Seas 412
The
rbe CONTENTS.
The Contents of the Third BooL
Chap. Page
1. /^^ F Freedom, Bondage^ Slavery ^ Exile y and
\^ jibjuration 417
2. Of Aliens^ as in relation to their EJlates real and
per final 428
3» Of Naturalization and Denization 438
4. Of Aliens y andTryals per Mcdietatem, where aU
lowedy a7id where not 448
5. Of Planters 454
6. Of "Jews 462
7. Of Merchants 47^
8. 0/ Factors 493
9. 0/ f*^ L^7e*^ 0/ Natm-e and Nations 498
CHAE
to
CHAP. I,
jQDf dominion o? ^loptttv in general, ana
of tf)t Caufejs cj^angtng t^e fame bv CiHar.
I. Of Dominion in the Primitive
State of Man.
II. l^hat fuch a Dominion univerfal
might hanje continued.
III. Of the Cau/es changing the fame.
IV. Of thingf excepted tacitly by the
Laiv of Dominion.
V. Of Property^ inhere the fame may
be changed againfl the Onjoner by
War.
VI. Of PublickWar, foiemn or lefs
folemn.
VII. Solemn War, by ivhom to be
undertaken.
VIII. Jn equitable Interpretation of
the fame in Cafes of Necefjtiy.
IX. Of War by the Laws of Eng-
land.
X. That yuflice is the <very Bafts
that muji fupport a War.
XI. Jujiice rwhaty andivhether War
jujiifiable by the Laivs of Nature
to prefer^e the fame.
XI I . O/ War, and of the Ships and
• Goods of an Enerny^ ivkere the
Property is changed by the Lwws
of Nature and of Nations.
XIII. Where the Property of Goods
taken from an Enemy is qualified
by the Laiv Civil.
XIV. OfReJiitution, nvhere the fame
by Lanu may be of Goods or Mer-
(handife acquired in War.
XV. Of Rejiitution ex gratia, made
by the Sovereign of him nuhofe Ships
icre lofi\ and regained aftemuards
in Battle by Ships of War ; and of
the like by Primes or Republicks in
Amity*
XVI. Of the affaulting an Enemy in
the Ports or Havens of Nationi
Neuter, vohether lavoful by th^
Lavjs of Nations.
XVII. Of Proteaion given to Shipi
cf Enemies being in Port before^
and found there after War de*
nounced.
XVIII. Of the Goods jf Friends
found in the Ships of Enemies y and
of thofe of Enemies found in the
Ships of Frievdsy and vohere Pro-
perty of the fame is altered.
XIX. Whether againfi Nature h
defray the Goods and Ships of our
Enemies.
XX. Of Interpellation and Denun-
ciation, vohether neceffary by ths
LavJS of Nature and Nations.
XXI. Of Denunciation by the Cufom
of the Romans and other Nations^
and vohether requifite at this Day»
XXII. War vjhere proclaimed 4-
gainfi any one, includes his Sub-
jefts and Adherents ^ but not as
confidered by themfelves,
XX II I. The true Reafon voherefors
Indiaion voas introduced,
XXIV. Of the Goods of Friends thai
fupply an Enemy , vohether fubjeB
to be made Prize by the Lavjs of
Nations.
XXV. Havo dealt voithai after fei-
zure, by the Pradice of antient
and modern Ages.
XXVI. Whether lavoful for a Chi"
flian to afjifl an Infidel againfl a
Chrifiian by the Lavoscf Nations ^
and by our Religion,
I.TW T O fooner had the Eternal Power created Man, but
i^\| he bellowed on him a Right over the things of this
inferior Nature •, nor was his Goodnefs leffened upon the
A Reparation
2 fiDf ^Up$ of mat. B o o K I.
yujih, lih. Reparation of the World after the Flood {all things he-
43- ing then undivided and common to all, as if all had one Patri-
mony) fince every Man might then take to his ufe what he
A Theatre is pleafed, and make confumption of what he thought good
common, yet j^ his own Eyes *, which ufe of the univerfal Right was
feffed^b^^ an^ ^^^^ inftead of Property : For what any one had fo taken
one, may he ^^^^^^^ could not without Injury take away from him.
rightly called II. Nor was it impolTible for that State to have conti-
his own. nued, if Men through great Simplicity or mutual Charity
had lived together •, and this is inftanced in thofe Ameri-
Juflin, lih. 2. cans, who through many Ages have lived in that Commu-
Uf ^eScy this lo- n'liy and Cuftom, and the other of Charity, which the EjJ'enes
guitar "Trogus.^^^^^^ pradifed, and then the Chriftians who were firil
rritnum inter t^ r i i i-ta r iii
Homines znali^'^J^^^M^^^'y ^"^ ^^ ^"^^ -"-^^y "^t E kw that lead an a-
fiefcia ^ «^-fcetick Life : The Simplicity of our firft Parents was de-
huc ajiutia in- monftratcd by their Naked nefs, there being in them rather
txperta fimph' ^^ fg;/^r^»r^ of Vice, than a knowledge of Virtue, their only
Bufinefs being the Worfhip of God, living eafily on thofe
things, which the Earth of her own accord brought forth
without labour.
ill. Yet in this fimple and innocent way of Life, all Men
perfifted not, but fome applyed their Minds to various
Arts*, the moft antient of which were Agriculture and Fa-
Jiure, appearing in the firfl Brothers, not without fome
diftribution of Eftates, and then from the diverfity of each
Man's Actions arofe Emulation, and then Slaughter ; and
at length, when the Good were infe6led with the Bad, a
gigantick Kind of Life, that is, violent ; but the World be-
ing walhed by the Flood, inftead of that fierce Life, fuc-
Senua f^atu- ceeded the defire of Pleafure, whereunto JViite was fubfer-
ralium. 3. in vicnt ; and thence arofe unlawful Loves, but by that more ^
f^'' general Vice Ambition, Concord was chiefly broken, after
which Men parted afunder, and fcverally poflels'd feveral
parts of the Earth ; yet afterwards, there remained a-
mongft Neighbours a communion not of Cattle, but of
Paftures ; becaufe in the fmall number of Men, fb great
was the Latitude of Land, that without any incommodity
t^einfignart it might fuffice to the ufes of many, until the number of
quidemaut^ Men, fo of Cattle increafing. Lands every where began
cTmtos Fas^^ to be divided j not among Nations as before, but among
trat. Families ; an inftance of which we have hourly before
cur Eyes in thofe vaft immenfities dbat ^re daily appro-
"' 1:. :■:"" ' ' ' F^iating
Chap. I. £>{ ^^ip$ of m^V, %
priating and planting in America : From hence we learn
what was the caufe for which Men departed from the pri-
mitive communion of things, firft of moveables^ and then
of immoveables alfo ; to wit, becaufe when not content to
feed upon that which grew of itfelf, and the Earth fmgly
brought forth, to dwell in Caves^ to go naked^ or clad with <
rinds of Trees ^ or skins of Beafis ; they had chofen a more •
exquifite kind of Life, there was need of Induftry, and
ufing of Art in thofe matters, which they fhould give
themfelves up to ; fo likevvife from hence we learn, that
Men not content to live in that innocent ftate of commu- ^o^/«. lih. 3.
nity, how things went into Property, not only by tht^^P- 7*
a6l of the Mind (for they could not know the thoughts of
one another, what every one would have to be his own, Gro/;aj//^;i/^-
that they might abftain from it, and many might defire''^* ^^^^^'<'i <^P*
the fame thing) but by a certain Coveftant ; either e:^prefs ^5'
as by divifion, or tacit as by occupation : For fo foon as
Communion did not pleafe them, and divifion was not
made, it ought to be fuppofed an agreement amongft all^
that every one fhould have proper to himfelf what he fei-
zed on, ^ for every one might prefer himfelf before another^ in* CU o$c. f .'
getting thofe things ufeful for the accommodating of human '^^^^^^^!^^ J-}'
Life^ Nature not being repugnant to the fame, ^* . ff^^^lcon-
ditio efty ut quicquid in ufum hominis cejjli^ proprium Jit hahtntU, pt-ofeSlo quicquid jur6
pojjidetury injuria aufertur. Macrohius Saturn. /. 3. c. 12,
IV. And though Property may feem to haVe fwal-^-
low'd up all that right which arofe from the common
ftate of things, yet that is not fo ♦, for in the Law of Bo-
minion^ extream neceffities feem excepted. Hence it is that
in Navigation, if at any time Viduals fail, what every
one hath, ought to be brought forth for the common ufe t
And fo in a Fire, I may pull down or blow up my Neigh-
bour's Houfe to fave mine 5 dellroy the Suburbs, to raife
Lines or Forts to preferve the City thereby ; dig in any Z^^. 2. §,fum
Man^s Ground for Salt Peter, cut in pieces the Tadding^^^^^^^^^^^-^^
or Nets upon which my Ship is driven, if it cannot ^^ ^',„^ljlagmi
difintangled by other means: All which are not introdu-^ ^od ait,
ced neither by the Civil Law, nor the Municipal Laws ofD.incend. Leg.
Countries, but are expounded by them, with their V^^'^'J^j^f^jy^
per diverfities. ad I. Aqmia7n\
12, U. 3. tiidiftrtf. 170. li. <^. 7. 5, Rcmger 5e Fogafia, Plowden fol. i. to
' ' A a V. Nor
4 ifiDf ^\)ip?i of C[lar* Book I.
BalJ. lib. 3. V. Nor is Property lb far inflated in Man, but the fame
de rerum di- j^^y ^g^in be divcftcd by fuch means as ftandx with the
^emTtrhave ^'^^ ^ 'Nature and Nations % and firft by War, the Cau-
beenofopi- fes of which are alTigned to be three. Defence^ Recovery ^
nion, that and Revenge.
by the Laws
of Nations one ipay take Arms to abate the growing Power of his Neighbours.
S^ ut 'vim fati pojje ad 'vir/i infer endam "J us tribuat^ ah omtti aquitatis ratione ah-
horret: Bat that a poflibility of fuffering Force, Ihould give a right of offering of
Force, this is far from all Equity, fays the excellent Grotius^ lib. 2. cap. 1. fed. 27.
Fa/egh's Hiflory of tlie World, p. 678. G;o/. de jure belli ^ pads, I. 3. c. 6. SeSl.
II, 12, 13, 14.
But then fuch War muft be juft, and he that undertakes
it mud be a Sovereign : The juft: caufes to make a War are
our Princess or Countryh defence, and that of our Allies,
the Satisfadiion of our Injuries, or theirs ; our juft Preten-
fions to an Eftate or Right •, Divines have added another,
not only the Defence of Religion, but its Advancement
and Propagation, by the way of Arms, and fome the
extirpation and rooting up a contrary. Certainly War
is too rough a Hand, too bad a Means, to plant Piety \
Sicut non Martyr em pcena^ Jic nee for tern pugna^ fed caiifa ;
Raleghy 680. As it is not the ptinijhment that makes the Martyr^ fo it is not
fighting that declares a valiant Man, but fighting in a juft
caufe \ in which whofo fliall refolvcdiy end his Life vali-
antly, in refped of the caufe, that is, in the Defence of
his Prince, Religion, or Country, ought to he numbered a-
mong the Martyrs of God,
VI. Publick War is either Solemn by the Laws of Na-
tions, or elfe lefs Solemn. What we here call Solemn is
commonly called Juft, in the fame fenfe as a juft Tefta-
Ita inter ctjes j^g^j- J3 oppofed to CodicilSy not that it i^ not lawful for
^matlimonia^ ^^^ that pleafes to make Codicils, but becaufe a Solemn
nan jujluy «o«Teftament hath by the Civil Law fome peculiar effeds;
jujii liberi. and this difference is worth Obfervation, feeing many
-^^"^••^^"'•^'^mifunderftanding the Word Juft conceive all Wars to be
^ ' ^^' condemn'd as unjuft and unlawful, whereunto this Ap-
For the more peHation of Tuft is not agreeable.
clear under- ■»••'*-'
(landing of VI. mat
the foregoing Seflion we think it may be 6f ufe to abftraft Lord Chief Juftice
H«/<?'s fenfe of this matter as follows, -Our Wars with foreign Countries have
been either fpecial or general: i. Special, ufually called Marque or Reprifal, and
thefe either particular, /. e. granted to fome particular Perfohs on particular Oc-
cafions to right ihemfdvcs, vid, 5/«/. 2. H, 5, 7. Or, 2. general Marque or Reprifal,
which
w A >..
c H A p, I. )©f ^^ip^ of mtiv, s
which though it hath the efFedl of a War, yet differs in thefe two Inftances j
1 . regularly no Perfon may by aggreffion take the Ship or Goods of the adverfe
Party, without a Commiflion ; 2. ihe two Nations are not therefore in a perfeft
State of Hoftility ; though they mutually take from each other as Enemies j and
many times thefe general Reprifals grow into a formed War. Such was the Dutcb
War 1664. Ha/e's Hiji. PI. Cr. 162.
A general War is either folemnly denounced, or not folemnly denounced ; the
former, when War is folemnly declared or proclaimed by our King againft another
State. Such was the Dutch War 1671, (and the prefent War with Spain.) Am
unfolemn War is when two Nations flip into a War without any folemnity ; and
ordinarily happeneth among us. Again, if a foreign Prince invades our Coafts, or
fets upon the King's Navy at Sea, hereupon a real, though not a folemn. War
may, and hath formerly arifen. Such was the Spanijh Invafion in 1588. So that
a State of War may be between two Kingdoms without any Proclamation or ln<r
diflion thereof, or other matter of Record to prove it. Idem. 164.
VII. That War, according to the Law of Nations, may
be Solemn, two things are requifite: Firft, Th^t it be wa-
ged on both fides by his Authority who hath the higheft
,Power in the Commonwealth. Secondly, That certain
Rights be ufed (of which we ihall fpeak in due place) one
of thefe without the other (becaufe they are both required)
doth not fuffice. Publick War lefs Solemn may v/ant
thofe Rites, and be waged againft private Perfons, and
have for the Author any Magiftrate. And according to
the opinion of moft Civilians, if the matter be confidered
' without Civil Laws, it feemeth that every Magiftrate
hath right to wage War, as for the defence of the People
committed to his Charge, fo for the Exercife of Jurif-
didion, if he be oppofed by Force: But becaufe by War
the whole Commonwealth is endangered ; therefore by
the Laws of all Nations that War be not undertaken with-
out the Authority of him whofe Power in the Common-
wealth is the higheft, there is extant fach a Law of Plato's, Uh deLeg.!.$,
and in the Roman Law it is called Treafon in him who^^-^^^^s-J^h
without the Command of the Prince, hath waged War, ^^''-^*
or lifted Soldiers, or raifed an Army -, in the Cornelian , ..
Law brought in by L. Cornelius Sylla it was, without ths
Command of the People ; in Jujiinian^s Code is extant a
Gonftitution of Valentinian and Valens^ None have leave
to take any Arms without our knozvledge and direvlion. And foi g. i^ j^o^,
my Lork Coke in his Third Inftitutes obferves. That by the doit de droit
Common Law of this Realm it was High-Treafon * to levy>f'^f ^ ^^^
-^•3 ^ ^^ Realm -vers
Enemies, ^c. F. N. B. w'i,. a, * See i Hale's HiJi. PI. Cr. p. 130, &c. and
to the end of Chap. 1 4. for much good matter on this Point. It mua be a levying War
6 ^f ^f^ip$ Ot Zmv. Book I.
aga'tnj} the King, by the Statute ; and it mull be in his Realm, Therefore private
Quarrels, tho* carried on more guerrino among the great Men, did not amount to the
levying of War.
The Realm q^ England comprehends the narrow Seas. Idem, page 154.
War without Authority from the King, for to him it be-
longeth only. And the reafon why it fhould be fo fub-
je6led is, becaufe that natural Order for preferving of
peace among Men requires that an Authority and Council
in undertaking of War Ihould remain in Princes.
VIII. But as all Laws muft be interpreted by Equity,
fo muft this Law ; and therefore there is no Queftion but
that 'tis lawful for one having Jurifdidion, by force of
thofe which we call a peaceable Guard or Power, viz, Con-
ftable, Serjeants, Watchmen, ^c, to conftrain a few dif-
pbedient Perfons as oft as there's no need of greater Power
to that purpofe, and no imminent danger to the Common-
wealth. Again, if it be fo prefent a danger, that time will
not admit of Confultation with him who hath Supreme
Power, here alfo neceflity affordeth another Exception ;
and therefore in Garrifons, if the Townfmen ihould endea-
vour to fall over to an Enemy, they may be dealt withal
as Enemies by the Governor of the Garrifon, and by
that Right L. Pinarius Governor of Enna^ a Garrifon in
Sicily^ having information that the Townfmen were falling
off to the Carthaginians y making flaughter of them kept
the Town : And the reafon why fuch extraordinary Force
is called War, is, for that the fame is commenced by the
right of the Magiftrate, in which cafe the War is fuppos'd
to be made by the highell Power, becaufe every one is
judged Author of that which he giveth another Commiffion
to do ; befides the univerfal reafon which warrants the a6V,
requires that all Dangers, Rebellions, and Infurredlions
be withftood and checkt in the very bud, and tho* this
Oar Author \^ called War, yet this ftridly is not properly War, the*
derftood\ere ^^^ Parties who fupprefs or punifh are impune.
of War within the Realm. But War folemn or unfclemn with Enemies out of the
Kealui, are bothecpially War. See i. Hale's Hijl. 163. ihewed above, Seei. 6.
IX. But War properly by the Laws of this Realm or
Solemn.^ is, when the Courts of Juftice are fhut up, and
the Judges and Minifters of the fame cannot proted Men
' from violence, nor diftribute Juftice : So when by Inva/ion^
' ' Infurreilion'j^
c H A p. I- M ^i)ip$ of 22lar* 7
Infurre^ion^ Rehellion^ or the like, the current of Juftice is"
ftopt and fhut up, Etftlent leges inter arma^ then it is faid h ^^- 3. tiu
to be time of War, and the Trial of this is by Records ^^''''^ /''"^^
and Judges of the Courts of Juftice, and not by a Jury. ]l^,'i!'l^^l^[^^
So likewife War by the Laws of England is when the Earl of hau*
King's Standard and Hoft enter the Realm of another ^^A''.
Prince or State, and hath been there by the fpace of Forty
Days, for till then the War is not properly faid to h^tr'm. yEd.^:
begun. fol' 29.
X. Wars, though undertaken by publick Authority, Gro/. d'^yW
muft have the Effedls of Law, that is, there muft be a jufl helU et pa. tiL
caufe for the undertaking the fame *, fo that Alexander^ for^* ^* ^* §* '•
that without caufe he warred upon the Perfmns and other
Nations, is by the Scythians in Curtius and by Seneca too Seneca de hem-
defervedly called a Robber. For take away Juftice, and/c i. c, 13,
what are Kingdoms 'but great Robberies ? Therefore the
juft caufe of taking Arms muft be the Iniquity, or, as we
underftand it, the Injury of the adverfe Party, according
to the Words ufed in the antient Denunciation of the
Roman Heralds, *' I call you to witnefs^ that People is unjuft^ * Ego *vv u-
and doth not perform what is Right, Nov/ that is unjuft/'"'» Populum
which hath a neceffary repugnance to the rational ^'^'^ g!f-^ ^f^^'^^
focial nature. Now amongft the firft principles of ^^' pgrjhhere.
ture there is nothing neceflarily repugnant to War, there
is much in favour of it ; for the end of War, the confer-
vation of Life and Members, and the keeping or acquir- '
ing of things ufeful unto Life is moft agreeable unto thofe
Principles : And if need be, to ufe Force to that purpofe
is not difagreeable, fince every thing hath by the Gift of
Nature ftrength, to the end it may be able to defend and
help itfelf, and therefore he is by Nature fitted for Peace
and War \ though coming into the V/orld unarmed^ yet he
hath a Hand fit to provide and handle Arms. Moreover
right Reafon and the Nature of Society inhibits not all
Force, but what is repugnant to Society, that is, which
depriveth another of his Right ; for the end of Society is,
that by mutual Aid every one may enjoy his own. And
this were fo, although the Dominion and Propriety of
Pofleflions had not been introduced -, for Life, Members,
Liberty would yet be proper to every one, and therefore
could not without Injury be invaded by another, and to
ipakc i)fc of what is common, and to fpend as much as
A 4 may
? M ^ffip& of mat. B o o K I,
may fuffice Nature, would be the right of the occupant,
which right none without Injury could take away : And
that is made evident, fince by Law and Ufe, Dominion i^
5r«/^VQ^f.3.eflablifhed, and that appears by the Orator, JJt Ji unum-
quodque memhriim fenfum fuum haberet^ ui pojfe putaret ft '
valerefi proximi membri valetudinem ad fe traduxijfet^ debi-
litari &f interrire totum corpus necejje eft : And applying
that, fays. So if every one of us fnatch unto himfelf the com-
. modities of other Men, and draw away from every one what
he can to advantage himfelf , human Society cannot ftand. Na-
ture gives leave to evexy Man, in the acquifuion of things
ufefuly to fupply himfelf before another : But by the Spoils of
another to increafe his own Store, that Nature doth not permit.
It is not then againft Society to provide for one's felf, fo
that another's right be nqt diminifhed ; nor is that violence
iunjuft which doth not violate the Right of another. Of
the two kinds, Contention by debate and by force, the
one agreeing to Men, the other more becoming Beafts,
we muft fly unto the latter when the former would not ferve.
te- ? • fi^r '^^^ incomparable Ulplan fays, Caffius writes that it is by
<vim 'vL p. de Nature lawful to repel Force by Force, and Arms by Arms,
^'^^'^^' f\Vi^x!ci\% is further proved out of Sacred Hiflory ; for
when Abraham having armed his Servants and Friends,
purfued the four Kings that fpoiled Sodom, and returned
with Victory and Spoil of the Enemy, God by his Prieft
pen. xiy. i8, Melchifedeck approved his Adion, Bkffed be the mcft High.
God, faid Melchifedeck, who hath delivered thine Enemies
into thine Hand. Abraham, as appears by the Story, had
taken Arms without any fpecial CommilTion from God \
therefore the Law of Nature was his Warrant, whofe Wif-
<3om was no lefs eminent than his Sandlity •, nay, God
himfelf hath prefcribed to hi3 People general and perpetual
Laws of waging War, thereby fliewing that Wars may be
Juft, even without his fpecial Mandate -, for he doth plain-
ly diftinguifh the Caufe of tjie feven Nations (in which
God gave a fpecial Mandate for the deftroying of them,
which is properly called the Wars of God, and npt of hu-
rnan Counfel) from the Caufe of other People, and pre-
icribing nothing about the juft Caufes of entring into War,
thereby fhews them to be manifeft enough by the Light
pf Nature, as the caufe of the defending of the Fron-
tier3 in the Wars of Jephtha againft the Ammonites^ and
• - thQ
Ch AP, I. is>t ^i)iv& of Mar. ^
the caufe of Embafladors violated in the Wars of David
againft the fame People.
XI L By the Law of Nature, in War thofe things are
acquired to us, which are either equal to that, which
being due unto us, we cannot otherwife obtain, or elfe
is fuch a mark as does infer Damage to the guilty Party
by a fit meafure of Punifhment ; and by the Laws of Na-
tions, not only he that wages War on a juft Caufe, but
every one in folemn War, and without end and meafure,
is Mafler of all he taketh from the Enemy in that Senfe,
that by all Nations, both himfelf and they that have
Title from him, are to be maintained in the PofTeiTion of
I them ; which as to external Effed we may call Domi-
nion ; Cyrus y in Xenophon^ It is an everlafting Law among Xenoph. c. de
Men, that the Enemies City being taken^ their Goods and Inftit. Cyri.
Money Jhould be the Conquerors ; for the Law in that mat-
ter is a common Agreement, whereby the things tdk^nAriJi.i, Polite
in War become the Takers. From the Enemy are judged
to be taken away thofe things alfo which are taken away
from the Subjects of the Enemy, and Goods fo taken can-
not by the Law of Nations be properly faid taken, but Hujufmodi res
when the fame are out of all probable hopes of recovery ^ that^''" ^^^ ^^p^^
is, as Pomponius obferves, brought within the bounds or ?"''^. 7^^^^
guards of the Enemy *, For^ fays he, fuch is a Perfon taken in ^d! plf. Pompo-
War^ whom the Enemies have taken out of our ^ and brought ni us &Leg. in
within their Guards^ for till then he remains a Citizen. And BelloParag.Si
as the Law of Nations is the fame reafon of a Man, {^q^i^ f^r'vumin
. likewife of a thing; and therefore Goods and Merchan-'?fJ' ^ '
dize are properly faid to be the Captor's, when they are
carried Infra Pr^ejidia of that Prince or State, by whofe
Subjeds the fame were taken, or into the Fleets or into a \ . Halis Hiji,
Haven ^ or fome other place where the Navy of the Enemy PI- ^^'P-^^S'
rides : For then it is that the recovery feems to be paft
all hope. And therefore the common Law of this Realm
calls fuch a taking a Legalis Captio in Jure Belli^ and in 2 ^- Z-fil- 3'
7 i^. 2. an A6lion of Trefpafs was brought for a Ship, ^ ^'^' J*"^^'
and certain Merchandize taken away, the Defendant py -/ ^"^
pleaded that he did take them in \t |)ailt 9^Zlt OU IC0
laptmangi qtieut font Cneniiegi leEop: And it was
adjudged that the fame Plea was good. And, in the Year
16 10. a Merchant had a Ship and Merchandize taken by
a Spaniard^ being an Enemy -, z Month after a Merchant
" ' ' ^ " / Man,
1 a jflOf ^l^tpiS Of max. B o o K. I.
M. 8. Jac. Man, with a 6'i?//> called The little Richard^ retakes her from
k'^'ii^^'Td ^^^ ^P^^^^r^ ' It was adjudged, that fuch a poflfemon of •
a!" I A. a, 24.^^^ Enemy, divefted the Owner of his Interred, and the
U.S. 16. 17. retaking afterwards inBattle, gained the Captors a Pro-
lucas, 79. perty.
XIIL 'Tis true, the Civilians do hold, That it is not
every PoflefTion that qualifies fuch a Caption, and makes
f.JF/i»/fVZf//?. it become the Captor's; but a firm poiTeflion (that is)
Pl.Cr. p. 16$, when the Prize doth perno5iare with the Enemy, or remain
in his pofieflion by the fpace of 24 Hours ; but as this is a
• Confulatii new * Law, fo it is conceived to be againft the antient' 1
JWijr/V, r. 283. jujjgn^gf^fs of the Civil Law, as well as the modern Prac-
%ailicat 20 ^^^ of common Law ; For the Party in the antient Pre-
iit. i^/art. Cedents doth not mention by his Plea, that the Prize did
^4. pernoSlare with the Enemy, but generally, that the fame
7^' 2- Tref-^^ gained by Battle of the Enemy.
P/ ^cl^^^^^ XIV. This right of changing of Dominion or Property
by force of Arms, is fo odious, that in the taking of Goods,
if by any poflibility the right Owners may have reftitu-
tion, the fame hath been done. And although a larger
time than 24 Hours happens between the capture and re-
capture, and fo it may perno^are with the Captor, yet re-
ilitution 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 Nat ion .^ the
Owners may feize her, and the Admiral of that Neuter Na-
tion may in fome cafes reftore the Ship and Goods to their
Owners, and the Perfons captive to their former liberty ;
the reafon is, for that the fame ought to have been brought
(a) Res qua in- infra Prxftdia (a) of that Prince or State by whofe Subjed
^Zduai'^mn fl^e was taken.
^mfunt.M^an' ^ Dunklrksr having feized a Frenchman's Veflel, fuper
quam ahhop-cltum Mare^ fold the fame with her lading at Weymouth \
%us occupat^, whither it had been driven before Ihe was brought infra
Pominum non p^^jj^^ j^^fjj^ j^^g. Hifpani^ : The Frenchman coming into
Isenilum jure. P^^^j thtxt claims the benefit of the Laws of Nations, the
Crotiusiiejure'KAn^ of England being then in amity with both their
J?^////3fP^m, Princes, and that reftitution be made; in which cafe
\h)\T V^" ^^ ^^^ refolved by all the Judges, (b) That if there be a
j^gp j'^j'^^ ' Caption by Letters of Marque^ or Piracy, and the VefTel
and Goods are not brought infra Pr^/idia of that Prince
or State, by whofe Subjeft the fame was taken, the fame
-. - will
Chap. I. £)f %Up& Of JEOar. ii
will not diveft the Property out of the Owner j with this
agrees the Law Civil, and reftitution may be made.
For this is not an abfolute property immediately veiled
in the Captor upon the taking ; but a conditional pro-
perty to anfwer the original Debt or Damage, which
cannot be done without a judicial Adjudication, the op-
portunity of which he hath loft by bringing the 'Prize Per leg. iihtr-
\ into the Country of another Prince : For, as to private '^^» ^ ^f h*
War, their Countries are as an Afylum. '^^^'
XV. 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 popffion^ the Neuter Nation cannot re-deliver
or make reftitution of the thing fo acquired : And ib it
was adjudged, where Samuel Pellagii with a Ship of War iRo,Rip.iy^>
of the Emperor of Morocco , took a Spanijh Ship, and3^«^^'?^- «3.
brought the fame into England^ that he could no ways ^^U^^^^^^c
be queftioned for the fame criminaliter^ or reftitution to Reprifal a-
be made civiliter ; for that the King of Spain and the gainft a NatJ-
Morocco Emperor were Enemies, and the King of England ^"^^^^^^^^^
in Amity with both, and that fuch a caption is not called ^g^^^g^^ ^[^
Spoliation fed legally captio, in which there can be no refti- states ; nor
tution made, upon neither of the Statutes of 31 H, 6. can they be
cap. 4. or 27 Ed. 3. cap. 13. for he that will fue to have^^^ ^P ^ ^^
reftitution in England for Goods taken at Sea, muft prove, 2^E^l^'foIi^
That the Sovereign of the Party was in amity with the King CoramReae ^
of England. Secondly, T^hat he that took the Goods^ his Condlio fuo in
Prince was at the time of the taking in amity with the Sove- CameraSfe//a-
reign of him whofe Goods were taken. For if he which took^^ fol^z'j
them, was in enmity with the Sovereign of him whofe
Goods were taken, then the fame will not amount unto
a depredation or robbery, but a lawful taking, as every
Enemy might take of another.
A Spanifh Merchant, before the King and his Council,
in Camera Scaccarii, brought a Bill againft divers Englifh-y E. 4, 14.
men, wherein fetting forth quod depr^datus & fpoliatus fu^ ^3 -2^- 4- 9-
f/, upon the Sea, juxta partes Britannia per quendarn Virum ^^ '^ \,l*
Bellicofum de Britannia^ de quadam Navi^ and of diversy^/. 2.
Merchandizes therein, which were brought into Eng-
land^ and came into the Hands of divers Englifhmen^ na-
Tning them, and fo prayed procefs againft them, who
came in, and pleaded, that in regard this depredation
3(yas done by a Stranger, and not by the Subjeds of the
' ' ^ King
1
12 ^( ^f)ip0 Ot mat. Book I.
27 F. 3.^. 13. King of England^ they ought not to anfwer. It was
3 ' ^^ ^- J^- 4 there refolved, ^od quifquis extraneu>y who brings his
\ro Rep 17c ^^^^ upon this Statute to have reftitution, debet pr oh are
quod tempore capiionis fuit de amicitia Domini Regis % and
alfo, quod ipfe qui eum ceperit, ^ fpoliavit^ fuit etiam fub
ohedientia Regis ^ vel de amicitia Domini Regis ^ five Principis
qu^rentis^ tempore fpoliationis^ ^ non Inijnicus Domini Re^
gis^ five Principis qu^rentis : ^iaftfuerit inimicus, i3 fic
ceperit bona^ tunc non fuit fpoliatio^ nee depredatio^ fed !e-
galis captiOy prout quilihet inimicus capit fuper unum ^
alter urn.
Uujufmodi res But if the King of England is in enmity with the States
fiontam capta, of Holland^ and one of their Ships of War takes a Mer-
^-"^^lintuJ^ chant-Man of the King of £;z^te^'s, and afterwards a-
^fer D.LeZ' ^^^^^^ ^^^P ^f ^^^ ^^ England meets the Dutchman and
P<7w/.o«/aj, ^ his Prize, and in aperto pr^elio^ regains the Prize, there
ferleg.inBel-Y^^ix.\xx\Qn is commonly made, the Owners paying the
lo Par. ft quis g^i^^^g , Sq ^hetc the Prlzc is recovered by a Friend in
tcriJUJH 1^ fir. ^ . . ' . ,
de Cap. l^ toil, ^"^^^^y-i ^^ comes into his Ports ^ reftitution is likewife
made ; but when fuch Goods become a lawful and juft
Ter Leg. pojl- prize to the Captor, then fliould the Admiral have a tenth
limimi, Par. ^^^^ followine the reliffious example of Abraham, after
Capt. & popL his Vidory over the five Ktngs.
Boyce &" Cohy verf. Claxton^ Hill. 26, ^ 27 Car. 2. in B. R. Reftitution made for-
merly by a French- Man, who had regained an Englijh Prize out of the Hands of a
Dutch Man of War.
XVI. He that is an Enemy, may every where be af-
faulted, according to the Laws of Nations. Enemies
may therefoj-e be attacked or llain on our Ground, on
our Enemies, or on the Sea ; but to aflfault, kill, or fpoll
him in a Haven or peaceable Port., is not lawful •, but
that proceeds not from their Perfons, but from his right
that hath Empire there, for Civil Societies have provided
that no force be ufed in their Countries againft Men,
but that of Law, and where that is open the right of
Sir Walter hurting ceafeth. The Carthaginian Fleet was at Anchor,
Ralegh, /. 5. in Syphax Port, who at that time was at Peace with the
f'Z' §• 17- Romans and Carthaginians *, Scipio unawares fell into the
fame Haven, the Carthaginian Fleet being the ftronger,
might eafily have deftroyed the Romans j but yet they
durft not fight them. The like did the Venetian^ who
hindered the Greeks from aflaultinor the Turkifh Fleets who
nd
Chap. I. jflDf %Up& Of mSiV. 13
rid at Anchor in a Haven, then under the Government
of that Republick ; fo when the Venetian and Turkijh Fleet
met at Tunis^ though that very Port acknowledges the
Ottoman Emperor -, yet in regard they are in the nature
oi a Free Port to themfelves, and thofe that come there,
they would provide for the peace of the fame, and in-
terdicted any hoftile attempt to be made there.
" The Corfairs having been in the Gulph^ put into the
Port of Vallona^ which is fubjedl to the Turk ; whereup-
on Capello^' Proveditor-General for the Venetian^ and
Captain of the Gulph, having notice of the fame, made Hiftory ofthe
into the Port ; and though the Ottoman Port had by Republick of
Treaty permitted the Venetian to purfue the Pirates in ^Tg^^^^^"?
all Places, and forbad their Commanders to protedl or .,7/
ihew them any Favour, yet the Caftle interdidted, and
forbad the Venetian General with Cannon to attack them ;
for it was neverthelefs intended by the Treaty that the
Peace of Ports muft be prefer ved.
And the fame Republick having War with thofe of
Cenoa^ met, at 'Tyre^ Reinerius Zenus Duke of Venice with
the united Power of the Venetians and Pifans^ counting
no fewer Number than 74 VejGTels well provided, and Fuller's Holy
would have engaged in the very Haven, but were there ^*^» ^- 4- ^<
interdicted by the Governor*, but yet with this Pro-^^'
vifo, that if by confent they would go out of the Pro-
teclion of the Port, and at open Sea decide the caufe,
they had then freedom : And accordingly they failed
forth and engaged. The like not long fince happened
-between Cornelius de Wit^ Commander of a Ship of War
of the States General^ and Captain Harman^ Commander
of one of His Majefty's Frigates at Cales^ a Challenge be-
ing made in that Port by the firfl, and as brifkly ac-
cepted by the latter, but both were interdicted the exe-
cution of the fame in the Port, but out of the protection
of the fame they might decide the Queftion -, the which y«». Anno
they did to the no fmall Fame of the laft ; for in that 1672.
difpute, of 380 Men then aboard the States Man of War
there were fcarce 100 whole Men in her, and Harman
having entered and taken her, brought her at his Stera
in Triumph to the Port again.
But they of Hamburgh were not fo kind to the Eng-
lijhy when the Dutch Fleet fell into their Road, where rid
at
14 ^f @^t pg Of mat. B o o K I.
jfrtno 166^, at the fame time fome English Merchant-Men, whom they
j^fcumBa- ^^^^^^^^y *^oo^' t)urnt, and fpoiled ; for which Aclion,
t^y^^ ^^ "°^ preferving the Peace of their Port, they were
by t\it Law of Nations adjudged to anfwer the damage,
and I think have paid moft or all of it fmce. But Ene-
This is Jus mies in their own Ports may be alTaulted, burnt, or de-
helli, ^ in ftroyed by the Laws of Arms.
Republica
maxime confer vanda funt Jura Belli. Reg. fol. 129. Arrejl fa^ fuper honis Mercator,
alienig,
XVII. If the Ships of any Nation happen to arrive in
any of the King of England ^s Ports, and afterwards, and
before their departure, a War breaks out, they may be
Grot, de Jure fecured, privileged without harm of Body or Goods j
belli iff pads but uudcr this limitation, till it be known to the King,
A^. 3. f. II. j^Q^ jj^g Prince or Republick of thofe, whofe Subjedls
Some of old ^^^ Parties are, have ufed and treated thofe of our Nation in
have held that //&<?/V Ports. But if any fhould be fo bold as to vifit our
Clericus, Agri- Ports after a War is begun, they are to be dealt with as
liuuolatlcom- XVIII. By the Laws of Nations generally all things
mutet, oretque2iTt the Captor's which he takes from his Enemy, or
face /r«a»/ar which his Enemies gained from another by Force of
Co. 2. Inflit. Arms ; fo likewife all thofe Goods that he fiiall find in
^ ^ * his Enemies cuftody : But then it muft be apparently ma-
nifeft, and ' evidently proved, that is really the Ene-
mies ; for if an Englifh-Man fhould have Goods in the
cuflody of a .Dutch Fa5ior at Cales^ and a War fhould
break out between that Prince and that Reptihlick^ yet
are not the Goods of the Englifh-Man fubjed: to the fei*
zure of the Spaniard^ it being apparent, that the Owner
ConfuL Marit. IS not a Subjedt of their Enemies : So likewife if the
*• 273. Goods of Friends are found in the Ships of Enemies^ this
does not ipfo fa5io fubjedt the fame to be prize by the
Laws of Nations ; though it be a violent prefumption,
and mayjuftly bear a legal examination, till which there
Hops Jit ille, may be a fecuring of the prize, till adjudication fhall pafs.
frJid\JTu^ So on the other had, if the Ships of Friends fhall be
>«/; Let^Wm ^^^^g^^^^ ^"^ ^^ ^^^^ ^^^ Goods of Enemies, this may
be our Ene- fubjedt them to be prize, efpecially if the Goods fhall be
my, and they laden aboard ly the confent or privity of the Mafler or Skip^
in^hirCuard*-^^'' ' ^^^"8^ '" France they have fubjeded and involved
Liv. lib. Z7^.^^^ innocent with the nocent, and made both of them
^alihipajfm, " ' ' 2 friz^^.
c H A p. I. iS>t %f^ip$ of mat. 15
prize. In the late Flemijh Wars with England, the OJlen^
ders became obfequioufly ferviceable with their Ships to
the Traffick and Commerce of both Nations. Memora-
ble was the Action, when the War was between the two
Repiiblicks, Venice and Genoa^ the Grecian Ships be-
ing then employed, (as thofe of Oy?^«/^) were fearched, Gr^^er. A^, 9.
and the Enemies pulled out, but no other matter done :
However it is mod certain, let the Commijfion or Protect--
on of fuch Ships be what they will, if Men will venture
to trade under fuch a Cloak, it behoves them, that the
Skipper and his Crew be entirely ignorant j for it is his
adtion that will go far in the freeing, or making abfo-
lute the Prize, and Goods fo made prize, the property is
immediately gone and changed, be the Owner who he
•will, he never can claim the fame ; for the Laws of
Nations made the Enemies firft Mafiers ly External Domi^
nion^ and then by Conqueft gave the property to the Captor :
Following that Judgment of the Romans^ Whatfoever they
got of their Enemies by Valour ^ they would tranfmit to their ^^^^^^^o^^^'
Pofterity by Right. • r/«fT>JX
A J ' nig
mas cred'imui pojfejjiones quas Belli Lege captas hahemus ; neque njero induct fojjimus ut
fiulta facilitate deleamus 'virtutis monument Uy Ji eas illis reddamui^ quibus femel perie-
runt : Imo vero tales pojfejjiones , mn tantum cum his qui nunc 'vivunt ci'vibus nojlris com-
municandas ; fed i5f pojleris relinquendas cenfemus : tantum abeji ut farta relinquendo in
nos ipfos ea conJiituamuSy qu^ in Hojies conjiitui folent : Titus Largus his opinion in
the Senate of Reftitution : We Romans believe thofe pofleffions to be moil honou-
rable and juft, which we have taken by the Law of War ; nor can we be indu-
ced by a foolifh Facility to part with the Monuments of our Valour, and reftore
them to thofe that were not able to keep them ; nor do we judge fuch pofTeffions
to be communicated only to our Country-Men now living, but to be left to our
Pofterlty. So far are we from relinquifliing what we have got, and dialing with
ourfelves, as if we were our own Enemies. De Veij idem in Romulo narrat Plu"
tarchus,
XIX. 'Tis not againft Nature to fpoil the Goods oitlij}. 5.
him, whom it is lawful to killy and by the Laws of ^^'?7/.\J^-^^'^'
tions it is permitted that the Goods of Enemies may be/^ ^^ /T^?
as well fpoiled as taken; d,nd Polybiu^ obferves, That§. i.
all things of the Enemies may be fpoiled, their Ships,
Goods, Forts, ^c,
XX, And though it may happen fometimes that a
War may break out, and there may be no publick de-
nouncing or proclaiming the fame ; that if a Friend or
Neuter fliould affift an Enemy with Contraband Coods^ that
~~. is.
i6 £)f %i)ip& of mat. Book I.
Oiuen, 45. IS, Arms, (fjc, whether upon fuch a caption the Goods
^u^ ^n^r °^ "^^y ^^ niade prize ; the refolution of which will depend
on thele Lonlitierations.
Firft, By natural Law, where either force offered^ is re^
Grotiusjih.^.pelledj or punijhment exa^led of one that haih offended^ and
€ap.^.^. 2,^. is denied^ there needs no denunciation; for Princes are.
not to (land debating with Words and Arguments, being
injured beyond Words : For War undertaken to rejiji vio-
lence^ is proclaimed not by an Herald^ but by Nature : For
it is no more than the invading of one for another, or
taking of the Goods of the Debtor, to anfwer the Credi-
tor's damage.
Secondly, Interpellation is introduced by the Laws of
Nations, whereby Princes or Republicks having received
injuries, may apparently fhew that they had no other
way to recover their own, or that which is due to them :
For fuch Interpellation following after injuries committed,
Vid. Maria- conftitutcs that Prince or State in a fault that fhall not
PI, Cr. p, 161, 162, dsfr.
Denunciation Thirdly, Admitting that Interpellation hath gone, and
is either con- fatisfaftion hath been required for the damage, and no
pure"^Condi- ^^^^^^^^°^y return hath been made, whether then the
tionate where Ships or Territories of the Enemy may be aflaulted : And
it is joyned for that it has been conceived they may, for denuncia-
with remand- ^ jqj^ jg ^^ j^^j.^ \y^^ ^-q fjgnify that the Parties, againft
and°in\he^^' whom the fame is commenced, are unjufi and will not do
name of m re- right ^ and therefore War is begun by the Supreme Power,
petita the He- Now Princes or Republicks having done that which by the
"n^H^^V "^^^ of Nature they were not obliged to do, that is, af-
fzw! compre- ^^^ ^ wrong done, abftained from War by Friendly de-
hended not manding of Satisfaftion or Reparation (which is required
only vindica- only by the Laws of Nations) and publick Juftice being
tion by right ^gj^jg^ them, there remains no other or further obliga-
butalfo\he ' ^^^^ ^n the State, the fame amounting to, and indeed is
profecution an apparent defiance \ and Proclamation is no other.
of that which is due upon a civil or criminal Caufe. Severus.
' ad \o. XXI. True it is, that while the Romans were uncor-
u€n. explamsj.yp|.g^ jj^ ^l^^lj. DifcipHne, they were religioufly fcrupulous
thence was ^"
flbat in the Forms to be renJgred, to bt fatisjifd, to he fteldfdt where to be yielded,
as
Chap. I. ^t %i^ip^ ot V^at, 17
as we have faid clfewhere is to be undcrftood, unlefs they that kre called upon will ra-
ther punifh the guilt/ themfclves : This requiring of things P/iny tellifics was named
Clarigation, /;i. 8.
in beginning a War ; for they never fent forth their Ar-
mies till they had fought for Juftice in the trads of Peace,
and after the publick promulgation of their intent. Such
alfo was the integrity of the Afhaans, before they had
forewarned the Enemy to a defence. Mdchiavel com-
mends the fimplicity of the Antient Plorentines^ that en-
terprized no Hoftility on their Neighbours till they had
by ringing a Bell for the fpace of a whole Month, fum-
moned them to a peaceable fatisfa6lion or a brave refifl-
ance : But thefe Cufloms and Inftitutions are only of fome
Countries, not from the Law of Nations. The white Rod
among the Greeks^ the Turfs and Bloody Spear a-
mong the EquicoU, renunciation of Friendfhip and So-
ciety (if there had been any) thirty folemn days ^^^^^ » f i^e fh o\v^
fatisfadion demanded, * are rather introduced by thatjng of the
which we call the Cuftom or Law of particular Kingdoms Spear, and
and States •, for there may be War no Queftion intro- ^^^h fort of
duced, without any folemn Proclamation, as the violation ^^.^j^ ^.^
of Ambafilidors by approbation of publick Authority is not belong to
an open denunciation of War, and upon the fame Reafon the Law of
Gufiavus Adolphus invaded "t" the Germatt Empire, with- Nations,
out ever declaring War, to revenge the contumelious ^^P.'^*'^^^ _
ufage of his AmbafTadors at Lubeck. The form of de- came obfo-
nunciation of War is either conditional, or abfo- lete j nay the
Jute; Conditional, when reflitution or fatisfadion is de- ^^^''^ -^"^'"'^'^
manded at the fame time that the War is ^^"o^^ced. ^^^Jj^^j^^^
A pure or abfolute denunciation, is that v/hich efpecially and begun,
is called an Indidlion or Proclamation, which is either r^r;v7, lib.
when the other Party hath already begun the War, 4- ^^ /•
or when he himfelf hath committed that which deferves"^., '' * yl*^'
to be puniihed. hee hxamples^ Grot, lib. 3. r. 3, 8, 7. SuecUa, joL
Zouch de yure Fedalif part. 2. fe^. 10. qu. An heUum aliquando cm'Jfa indi5i'ione
mo'Vere liceai ?
XXII. But if War be indi<?led, or is begun, againfl
him who hath the higheft Power over the People, it is
fuppofcd to be proclaimed againft all his, not only Sub-
jeds, but thofe v/ho will join themfclves unto him, as
B being
iS sDf ^i)ip^ of mau Book h
being an acccffion to his party. And this is that which
the Law interprets, ibe Prijtce being defied^ his adherents
V't^ffidafo Prin- nlfo avc dt[fied ', for to proclaim a War is to defie, which
eipe, difidati J3 j-q ]q^ undctftood of that fame War whichis waged a-
hllcins^ Bal-^^^'^^ ^^^ ^^ whom it is indidled, as when War was de-
Jus ad Leg. i.^ouwccdi againfl Antiochus^ they were not pleafed to de- '
C. de Sew. n. nounce it againft the jEtolians apart becaufe they had o-
7°- penly joined themfelves with yf/^/Z^rte; The Heralds an-
Li'v. lib. 36. fvvered, ^tclians have declared War of their own accord
againft themfehes \ but that War being ended, if another
People or King, for fupply of Aids, is to be warred a-
gainft, that the efFedb of the Laws of Nations may fol-
low, there will be need of a new Indi6tion, for now he"
Idefn d'uipotfji is not lookt upon as acceflary, but principal : Wherefore
de hello foch- jj. j^ lightly faid, That by the Law of Nations, neither
^cZonasFri- ^^^ ^^^^ ^^ MauUus upon the Gallo-Greeks^ nor of Cafar
amo quondam upon ArioDiftus was lawful. For they were not aflault-
auxiliatos, de ed now as an acceffion of a Neighbour's War, but prin-
^Od"ir ^S* ^T^^^y • To which purpofe, as by the Law of Nations
ibiDidymus, ^^didion, fo by the Roman Law a new Command of the
Roman People was neceflary. For what was faid in the
• propofal againfl Aniiochus : JVas it their Will that War
liruhsy lib. JJjould he entered with King Antiochus and thofe that followed
36, 42. ^/j Party (which was obferved alfo in the Decree againfl:
King Perfeus) feems truly undcrftood fo long as the War
continued with King Antiochus or Perfeus^ and thofe that
really immixed themfelves in that War.
XXIII. Now the true Reafon wherefore Nations re-
quired Denunciation to that War which was faid to be
juft by the Law of Nations, was not that Force fhould
not be offered privily, or carried on by deceit, for that per-
tains more to the excellency of their Valour than to flric^
Right y (for fome Nations (as we have read) have ap-
pointed their Enemy the time and place of Batdej but
that it might certainly appear the War was not waged
by a private undertaking, but by the will of either peo-
ple or their Heads. Servius Honoratus when he had de^
duced the Original of the Heralds Law from Ancus Man-
lius, and further from the Equicohe^ faith, That if at any
time Men or Beafts were by any Nation taken from the Peo-
ple of Ronie, the Pater Patratus went with the Heralds
(that is, Priefts) who have Authority in fnaking Leagues.,
2» and
Chap. L :©f ^i)iP^ Of ^^^^* i?
andftanding lefore the Bounds y with a loud voice pronounced Tmi certare a-
the caufe of the War \ and if they would not reftore the things f^'* .T^. 'T;
taken^ or deliver up the Authors of the Injury y he threw a ''''^'^'i^'^ '^^ *'^'
Spear^ which was the beginning of the fight^ and thence-
forth it was lawful, after the manner of War, to take the
Spoil.
XXIV. War Is not only lawful againfl thofe that:
are our Enemies, but iikewlfe againft thofe that fupply
them J but yet we muft diftinguilli of the things them-
felves. For fome things there are chat have ufe only in
War, as Arms : Some that have no ufe in War, as thofe
that ferve for pleafure : Some that have ufe both in War
and out of Vv'ar, as Money, Corn, Viduals, Ships and
things belonging thereto.
1. It is plain, that by the firfi: he is my Enemy that
fupplies my Enemies with things neceffary for the
War.
2. But by the fecond he is not, according to that ofiv^^c^ and
Seneca : I will not help him to Monies to pay his Guards ; ^^^'^ and^"h»
hut if he fhall defire Marbles and Robes, fuch things ^^^^{ ^..^l^^,^ neuter
.not others, only they minifier to his Luxury: Soldiers ^/viwuh' both,
^^ Arms I will not fupply him with-, if he fhall feek /^rthelatter per.
Flayers and, Recreations to foften his fiercmefs, I will gladly ^^"«f ^^^
offer to him : Ships of War I will not fend bm^ but Juch^^^^;i^^^/^^_
as are for Pleafure and Ojlentation of Prijtces fporting in {d of Pleafure
the Sea. I will deny to give to one that purpofes the de- 2X Portfmcuth^
Ilrudion of another's Country thofe things that are effen- ^Jjjf^^'J^'
^ tial, for it is a bounty not to be allov/ed of. Francs, and
3. But in the third, which is a doubtful ufe, there the svas no breach
ftate of the War is to be confidered : For if I cannot of the Neu-
defend myfelf unlefs I intercept the things fent, ne- ^^'^|;^>'» ^'^^^
ceflity v/ill then give right, but with the Burden of '
Reftitution *^, except fome other caufe accede; but \i*Grothiinju^^
the apportation of thofe things hinders the execution cf ^'J^^'^'l^^ '^'"
my right, and he could know fo much who brought//'^ -^■^*
them, as if I had driven the Enemies Fleet into a Fort
or Haven, or had flraitened a Town with a Siege ox ^\i^ Englijh
Blockade, and were now in expedation of their yielding drive the
or compounding, there is no queftion but he that ^aJl^^^f^^P^J^'
' in fuch cafe fuccour my Enemy, ought in Jullice be made -^^^ -^^^^^^^^
liable for the Daniage I havs tulUinccl dirough his 2nd xXizDans
- - - g; 2 means : there praG«di'
^o 3©f ^t)ip$ of mar. B 0 0 K L
eathcmA- nieans: Like a Goaler that fliall wilfully fufFer my Pri-
fcac^urind ^^"^^ toefcape; or one that hath refcued my Debtor
the Laws of j^^^V tletaincd by me for my damage, whereby I am in-
Nations, for jured, and according to -the meafure of my lofs his
which die en. Goods alfo may be feized and brought into fuch a (late,
wastc^unted ^^ ^^^ ^"'^ ^ "^^^ ^^^^^^ ^ P^ fatisfa6lion. But if he
juil on the ^^^^ ^^t yet done any damage, but hath been willing
Iving of to do it, there will be a right by retention or flaying
s^'t'^'-w'/" ^^ ^^^^ Ship and Goods to compel him to give caution
j^^r^;^!/ 7'^'^' ^^^ ^^^^ ^"^^^^ ' but if my Enemies injuflice towards me
§. 12. ' " ^'be moil evident, and a Nation that ought to be Neuter
confirm him in that mofl unjufl War, in that cafe it
will not only Civilly be liable, but Criminally as one
that refcues a Pirate manifeftly guilty from the Judge at
the very Bar ; ^ and therefore it will be lawful to deter-
mine againfl him by fuch meafures as are neceffary and
meet for his Offence : Wherefore within thofe rules, he
may be fpoiled of Ship and Lading ; and that is the
true reafon why Indiflion or publick Proclamation by
internal right ought to be denounced, that fo other Na-
tions may fee they have a juft caufe who commenced the
War, and that they ought not to be impeded in the ac-
quiring due fatisfaclion.
And though Neuters are not compellable, by the ri-
gour of War, to afford Affillance to either Party without
« the Will of the other, yet fuch may the emergency
of the cafe be, that if enforced, they may lawfully de-
,clare, though to the damage of the weaker. Such was
the cafe, when the Venetians had fo far prevailed a-
gainfl the Turks in Cajidia, that Canea which they then
beficged by Sea and Land, was brought to that extre-
mity that in all human probability it mufl then have
been fpeedily furrcndred, the Englijh Ships being then
at Smyrna, and prefs'd by the Turk to afTifl the Grand
Signicr in the relief of that City. If the Perfons whom
the Eu^Jjh had thus aOided, had been Chriflians, there
is no quefllon this Auxiliary Aid had been well j but to
aOlft a.n Enemy of Chrillianity againfl Chriflians them-
fch^es hath feemed doubtful : But furely there feems
little reafon for fuch an Ambiguity ; for if it be lav/-
i-ul to make League wilIi thofe that are Aliens from
the
Chap. I. 0( ^^tp^f Of Um. 2 r
the true Religion by the Law of Nature, then there
can be no doubt but they may be aided. Nov/ by the
Law of Nature they may be entered into by Chriflians
with fuch, for that Law is fo common to all Men, that
it admitteth not any Difference of Religion : Nor was
the fame univerfally forbidden by the Hebrew Law, as
appears by Ahrahamh aiding the wicked Sodomites with Laus eorum in
his Arms •, and that which was very remarkable, that ^'^^'■^»'''-
the Afmoneans^ being exceedingly fkilful in the Law,
and' great Obfervers of the Hebrew Rites, yet made^^V. Carokm
Leagues with the Lacedeemonians and Romans by the ^^''j''.^; ''"^'^•
confent of the Priefts and People, yea and publickly of- ^' ^■'^^ * ^^^'
fered Sacrifice for their fafety : Nor were they forbid-
den by the Evangelical Law, according to that of TVr- Lih, 7. c j,
tullian who obferves. That fo long as Ifrael was only
his People, God did judly command mercy towards
their Brethren alone », but after that, he gave unto
Chrift the Nations for his inheritance, and the ends of
the Earth for his poffejfwn^ and that began to be paid
which was promifcd in Hcfea^ 'They that were not my
People fhall be my People, and the Nations that had not
obtained mercy f}j all obtain mercy \ From that time Chrift
hath extended unto all the Law of fraternal benignity,
excluding none from our Compaflion, no more than T/Wf the Cafa
from his Vocation: From whence it follows, that at large irnl^Q
the a6lion of thofe Captains being then in the power ^^ "^f '^^^
of the Turli, was lawful in the afliSing them againft the ^'^^^^
Venetians.
XXV. And although the Goods of Friends, according 7«//^«W*,
to the circumdance of the cafe, m.ay be preferved by
adjudication, and reftorcd to their owner -, yet all man-
ner of Goods have not that priviledge : For though the
Freedom cf Trade preferves the Goods of Friends, againil
the rigor of War^ yet it does not thofe Goods that J'upply Vidt Treaty
the Enemy for War, as Money, Visuals, Ships, Arms, 1 Dec at Un^
and other things belonging thereto : for to ' fupply an Ene- ^^^ ^^J.^'w a
my that invades our right, or feeks the defttudion of^^^j^^'^ ^3 ^j^^^^^
our Countries, is a liberality not to be allowed of, and by Goods
it certainly ftands with neceflity, that// I cannot fafe ly Contra.b4r)d
defend myfelf or endamage my Enemy without intercepting^^ prohibited
the things fent^ it may jvftly be done : But wh^n fu^h goods ^'^ ^^* ^^
^^ £>f ^i)ll)0 Of m^X* B o o k I.
are felzed, whether they give the Captor a right of
Property, or right by Retention, to compel that neuter
Nation to give Caution for the future, by Boftages or
Fledges^ not to fupply the Enemy, may be a queftion.
Tlie Romans who had brought Viduals to the Enemies
Camhden indi of Carthage-^ Were taken by the Carthaginians^ and
Ann.^\l^(^. again rendered upon requeft *, the Hollanders in the
^^^' heat of the War between Szvcden and Poland, never fuf-
fered thcmfelves to be interdi6led with either Nation ;
the fame State when they had War with Spain, inter-
cepted the French Ships, pafTing to or from Spain, but re-
ftored them.
Plutfinh. And Pompey, in the Hiilory of the Mithridaiick War,
fet a Guard on the Bofphorus, to obferve if any Merchant
failed in thither ; whofoever did, and was taken, was
furely put to Death; fo Demetrius when he pofiefTed
Attica wdth his Army, having blockt up Athens^
hanged up both the Mafter and Commander of a Ship,
Ji^a;/»jinhisvvho attempted to bring in Corn: The Hollanders hav-
f^'aff r^' ^"S blockt' up Dunkirk, fome Englijh Merchans Ships'
did attempt to enter, but were denied by the Hol-
landers,
Moll certain, if a Neuter Natiofi had had notice of
the War, and Caution given them (as is ufual) not to
fupply the Enemy with the Counterband Goods, as
they call them ; if fuch be the cafe, the prize is be-
FideTit. Cu-come abfolutely the Captor's. So Queen Elizabeth did,
floms. when fhe feized on the 60 Sail of the Hanfmiick Towns,
who were carrying of Goods, ropas contrabanda, to the
Spaniard her Enemy ; fhe condemned them, and made
them abfolute prize ; For as neuters are not compellable by
the rigour of V/ar, to give any thing againft their Will, fo
tnujl they not againfi the Will of each Party afford fuch things
0^j:£it, 45. ^j ;;;^j, damagc one another. For Perfons or Nations hav-
ing had notice of the War, which is done, and Caution
given fometimes by Proch'mation, or fome other publick
Edi6l, fignifying the right of their Caufe, and Ihall af-
terwards gather to, and afTift the Enemy, whether Af-
fociates, Neuters, or Subjeds, the fame yields a rights
t.^^eS^wnnoS^ ^^^ as to them, not only to the charge and damage
Under the' that may fall thereby, by making them prize y but may
Name of Con- make
Chap, I. flDf ^i)ip0 Of mav. 25
•make them obnoxious to punifhment : For it is 7/^^ traband may
puty of thofe that alftain from War to do nothing for the ^^ compre-
jtrengthning of him who maintains a had Caufe^ whereby ^J^ ^ ^^ ^^^
the motions of him that wageth ajiift War may he re- ces of Ord-
tarded ; and where the caufe is doubtful they ought to nance, with
•ihew themfelves equal to both, permitting paiiage, ^^^ l"^ft"
.baking, drefling, and affording Provifion for each Army^j^^ j^ them^'
or Navy. ' Fire-Balis, *
Powder,
Matches, Bullets, Pikes, Swords, Lances, Spear?, Halberts, Guns, Mortar-Pieces,
Petards, Granadoes, Mufket-rells, Bandaliers, Salt petre, Mufeets, Mu&et ihot, Plel-
mets, Corflets, Breaft-plates, Coats of Mail, and the like kinds of Armature; fo
for Horfes and other Warlike Inftruments. Vide Marine Treaty between England and
Holland y December i. 1 674. j^rt, 3. Fide the Attempt made by John Burroughs to
trade with the ^ixede exprefly againil the Interdiction of the D'inifh King : Sir Waluv
Ralegh 't /. 5. f. I. § 10.
L. j^ mi li US Pr^t or zccukd the ^ejans for vidualUngSo likewlfe
the Enemy's Navy, promifing them Wine, adding, ^'^'P^ ^^^^^^*
That unlefs they would do the like for the Navy of^^^^j. ^^jj ^^
the Romans^ he would account them as Enemies ; thought or af-
but common Experience hath taught Nations and King- certained ca-
doms, when they declare Neutrality, to make Pro- ?^^^^ of^rm-
vifion by way of League with both the Nations at^^^y^
War, that when it fhould happen the Armies of both, BartoL I nuU
or any draw towards their Territories, it mio;ht be \2c^^lusnunc.lih.z,
ful for them to exhibit the Common Offices of Humanity ,. J.^^^'^^"
to both.
' It happened that about feven flout Merchant-Men
rode in the Port at Smyrna •, the General of the Vene-
'tians^ being jealous of their joining with the Turkifh Ar-
mado, defired to know their Minds, who anfwered,
they would prove Neuter in the Difpute ; but after-
wards (though at firfl the Captains all refufed) upon
the threatning of the Grand Signior, to lay an Embargo . -^
on ail the Goods of the Englifo Nation in his Dominion, i6-i.i;i^W^.
and to make Slaves of their Perfons •, thofe Captains, Cooke of the
;.-,were forced to join with the Tiirkifo Forces, who beat church's ftate
^ the ri?«f//,3;;j from before Canea^ and fo relieved it-, the ^^^^^^^^;^|^ "^^"^
Venetian Ambafiadbr complained to the then Powers in xrad^!
England^ but could have no Relief, being anfwered, '^hat
thofe Ship being in the Turks Power ^ wsre fuhje^ to it \ the
? 4 ^^ccideot
2i jflDf ^Uv& of mat. B 0 o K 1. 1
accident being fuch as made the Adion lawful, as we
have afore rem em bred.
Leagues may be made with Infidels, by the Law of
Nature, and likewife by that of Religion, which is fo
equally indulgent to all Men, that it will not admit of
any Difference upon the Score of Religion. Vid. Ex-
amples and Cautions. Groi, de jure belli t? pacts lib. 2.
Cap, 15. §. 85 9, 1O5 II, 12.
CHAP.
[ 25 3
I
C H A p. II.
flDf iLettetjs of ^avqut anti mtpti^nt
y I, Of Reprisals generally conjideredy
' and for nxihat Caufes aivardcd.
II. Whether unlanxful by the Lwvo
of Nature J and of the Roman
Lanjo
III- Where la<vful by the La<ws of
Nations at this Day, and the rea-
fons lAjherefore they are fo recei-
ved.
IV. Of the Advantages that accrue
univerfally by fuch Reprisals.
V. Of the effential Caufes or
Grounds generally for the wvjard-
ing Letters of Reprifals.
VI. Of the effential Caufes or
Grounds particularly that are re-
quifite before they can be anuarded
by the Lavjs of Nations and of
this Realm.
VII. Of the ordinary and extraor-
dinary by the Laivs (t/' England.
VI II. Whether the fame creates a
Debt in the Grantee ^ andnvhether
the Execution may be fufpended.
JX. Whether the a^varding the fame
amounts to a Breach of Peace.
X . Of Letters of Repri%.al extraor-
dinary nuhere granted, and of
njchat Force.
XI. T^hat it confijls nvith the Intereji
of Princes, not only to prevent thoje
things that may occajion reprize,
hut likenjoife not to deny the fame,
if there be ground fufficient.
^U. ^he Difference of Injujiice of-
fered to Subje^s and to Foreigners,
and vohere the one is concluded by
the fame and not the other.
XIII- What is meant by denying
of Right and doing of Injujiice,
and vjhere Reprizal takes rooting,
and ivhere not.
%W. Of Reprisals fwhereaivarded,
for denying of common Jujlice, or
thofe <uohich are called Letters of
Marque in Cafes ordinary.
XV. Not repairing the damage after
Letters of Requeji creates a Na-
tional Debt, and is the Founda-
tion of Repri%.al.
XVI. Domicil not Origination fuh-
jeSis to reprize.
XVII. Reprisal not grantable, if
the Spoil n.vas occafioned by War.
XVIII. Of Perfons exempted from
Reprisal by the Lan/js of Nations,
Canon and Civil Lavj.
XIX. Where Ships and Goods an
fubjefi to reprize, and vjhere not.
XX. When Right is denied, vjhether
Life is engaged, and vohether Per-
fons refufng to yield may be flain»
XXI. Goods taken by Reprize vohere
the Property is altered, and vuhere
not try able in the Admiralty.
XXII. Where many Ships are pre-
fent, and one becomes Captor, vjhe-
the Spoil muji he divided, or re-
main his that became Mafer of
the Prize.
XX I II. Where the Grantee of Let-
ters of Reprifal may become a
Pirate notvjithjianding fuch Com-
miffion.
XXIV. Where a Mifcaptian creates
not an Injury in the Grantee, nor
fubje{ls him to anfvjer Damage
to the Sufferers.
XXV. Of the Duties incumbent upon
the Captor, and vohether the Goods
taken are fubjeSl to pay Cuftoms.
XXVI. After the Debt and Damage
fatisfed, rejiitution of the Rejidue
ought to be made.
XXVII. Contribution, vohether it can
he by the Laws of England to him.
vfbofe Goods ars taken by Reprize,
XXVIII. Where CommiJJions have
been avuardedfor the enquiring of
Depredations , under vohich the
Parties have fometimes obtained
Satiffa^isft,
I. Reprifals y
26 m Xttuts of a^arqttc aitb MtpUnl b o o ic. i.
Grot, de Jure I. TJ Eprifals^ known to us by the Word Reprifalia^ or
^^^/// f/ Pacts Y\^ Letters of Marque^ in Law have other Appellations,
. * / ' ' ^'as Pignoration Clarigatio, and Androkpfta^ &c. in Imitati-
on of that Androlepfia^ among the Greeks^ to feize the three
next Citizens of that Place, whither the Murderer had fled,
and was always given to him who required revenge of the
Offender ; the word {ReprifaJs) is from the French repren-
dre and Reprife^y i. e. refumptio^ that is, to re-take or take
again one thing for another, like our Saxon ^ItljCtUnitt.
Reprifals are Though the Adl is now become lawful by the Law (in-
all one, both deed confent) of Nations^ yet muft it have its Standard-
m the Com- ^^^^j.]^ f^j. |.|^g ^^Ltno. Cannot be done by any private Authd-
mon and Ci- . ' ., , riA-^r^ ii-,
vilLaw; J^^-^^tyj «^ut only by the power or that Prince or Republick,
prifalia eji po- v^ho^G Subjcd: the injured Perfon is, nor is the fame
tejiaspignoran- ^x^x\X.xh\<^ by Authority, but where the Party injured has
iTeCde^Zra J^fi^^^ ^^'^^'^^ ^^^^^^ ^^ ^^^ ^^"^^ /%^//>' delayed,
debitoris data
aeditori pro hjurih t^ damnis acceptis, vscaiular. utriufque jfuris. zy E. 3. Slat, 2.
cap. ly. 2 7*/?. zoAj 205.
11. By the L^w cf Nature no Man is bound for ano-
ther's Act, but only the Succeflbr of his Eftate, for that
Goods and Eftate fhould pafs with their Burthens.^ was
^ ~ . introduced together with the Dominion of Things ; hence
lit luvTex'^vi'^^ ^^ ^^^^ ^^* ^^" cannot be molefted for the debt of his
canii f. ne ux- Father, * neither the Wife for the debt of the Husband,
cr pro mar. ^nor the Hufbaud for the debt of the Wife ; the fame be-
fiejilprcpatre. jj^g ag^inft natural equity, that one fliould be troubled for
the debt of another.
XJIpian.Leg.fi' So it is, that no particular Men owe, or are obliged
cut fen. quod for the debt which the Community owes, that is, if the
^^n^^^^^''"^^^'/' Community hz.'vt 2iny Goods; but if Money be lent to a
^FiftnguU dehe-^^^^^^^^^^^y^* ^^^^ Particular is naturally bound, as they are
hunt non tan-s, part of the whole, if the Stock publick be wanting.
^uamproprium\{ one Icnds my Country Money {{dij^ Seneca.^) I will not
^'tblkam'*^ub ^^^^ ^^yM^^^ Debtor, yet will I pay my Share. And again,
Jid ^piZem. ' Being one of the People^ I will not pay as for myfelf, but
Sfne^, lib. 6. contribute as for my Country, Naturally, nay, by the very
de Benefic. c. Roman Law^ * one Village was not bound for the other,
»^r? ^''^//^^* nor one Man's Pofleffions charged for another s no not fo
*lei.nu/.a., ^ - ^^^^^
ichap.II. m%tttmotWatmtanh mtpimt ^7
much as with the Debts publick ; the reafon being added, c. ^e Exccut.^
w^hat it was azainfi reafon for one to he charged with the debt ^ ExaaiQni^
\^of another. -
ij III. And though by the Lazv of Nature one Man's
'Goods are not tied for the debts of another, no nor for
thofe of the Puhlick *, yet by the voluntary Law of Na-
tions, the fame might be introduced and brought in, and
the fame may ftand well with the Laws of Nature j for
that might be introduced by Cuftom and tacit Confent,
when even Sureties without any Caufe, may fubje6t and
make liable their Goods and Eflates for the Debts of a
Stranger. So likewife that for any Debt, which any Ci-
vil Society^ or the Head thereof ought to make good, or
becaufe the Sovereign or Head hath not done right in an-
other's Debt, but hath made himfelf liable to render Sa-
tisfaction ; fuch a Society may oblige and make liable
all their Goods corporeal or incorporeal, for the Reddi-
tion of Satisfadlion. Hence it was, as the great Jufii-
nian obferves, That this Cuftom was conftituted by the i„ j^^^^ ja/.
Nations., grounded on the Urgency of human Needs, af-52. 134. c. »-
ferted with the greateft of Necefilties : Since without ^^'^^ ^^ i^junh
this, great Licence would be given and tolerated for the j^^f^j^a ^g
committing of Depredations and Injuries -, efpecially injure JSat.
only the Goods of Rulers v/ere made liable, who fel-
dom poflfefs any thing, that, for Satisfadion, the in-
jured may eafily come by ; whereas thofe private Men,
whofe Commerces are various, may be catcht for re-
compence, fometimes with the greateft eafe, and freeft
from Danger. Befides, the Owners of fuch Prize 5^/^^^ - ^^^y.
being Members of the fame Society^ might more ea- 58. Barfoi. de
fily obtain mutual right for fatisfadion of the injur'd, ''^/'^^ f- 5-
and their own future indemnity than Foreigners could, '^^^^^•^*^* ^"
who without fuch a Tye would be very little regar-
ded.
IV. Befides, the Benefit of this Obligation was com-
mon to all Nations, fo that they which were one Time
grieved with it, another time might be eafed by the
fame. Moreover that this Cuftom was received, appears
not only out of full Wars which Nations wage a-
gainft Nations* (for in thefe what is obferved may be
feen in the Forms of the ancient Denunciations. Pcpu-
lis prifcorum LstinQrum^ hcminih/que^ frifcis Laiinis helium Liv. lib. u
indies
28 iS>t %tttm of aBarotte ait D \^tp;mt Book i.
Lib. 11. indico facioque. So likewife in the Propofal : Vellent^ ju^
her en t Philippo Regi^ Macedonibufque qui fub regno ejus ejjenfy
Gemuslih.ie.^^^^^^ ^^^^^^' ^^^ ^^ the very Decree or Proclamation
£ap. 4. itfelf : Populus Romanus cum populo Hermundulo hominibuf-
que Hermundulis helium juffit) but alfo where Wars are
not come to that fulnefs of War, yet there is need of a
certain violent Execution of Right, that is imperfedt
Plutarch Jge- War. Agefilaus of old faid to Pharnahazus^ a Subjed to
//. the King of Perjia : We^ O Pharnabazus, when ^uve were
the King's Friends^ carried ourfelves like Friends towards all
his, and being now become his Enemies^ we carry ourfelves
like Enemies ; wherefore feeing you will he one of the things
that are his, we do jujlly oppofe him in you. A fpecies of
this fort of Execution by Reprizal was that which the
Athenians called apprehenfion of Men, of which the At-
Archaohgia tick Law (as Mr Rous obfervesj If one have force offer'' d
Attica. f^^j^ ^^^ ^^g^ 1^1^ Kinfmen and Friends moy apprehend Men,
till either the Manjlayer he duly punifhed or yielded •, but it is
lawful to apprehend three Men and no more. By which it
plainly appears, that for the debt of the City, which is
bound to punifh her Subjedls that have hurt others, is
Jierod, to tied a certain incorporeal right of the Subjeds, that is,
whom It was j-j^g liberty of taking whom they pleafe, and doing
mtke WaVa- ^^^^ they will : So that fuch Perfons fo taken, by that
«7ainft the Law might be made Slaves until the City did that
Arabians, which by Law flic WHS obliged to perform. In like
might hw- manner to recover a Citizen taken Captive by mani-
roration ^'^' ^^^ Injury, are the Citizens of that City, where the In-
Jo/eph. lib. 6. jnry was done, retained by Reprize, Wherefore at
Carthage they would not fuffer Arifion the Tyrian to be
ti'^.lih. 34. taken •, for, faid they, the fame will hefal the Q?i\'X.\\^g\n\dim
at Tyre, and in other 'Towns cf Trade, whereto they often
■ refer t.
V. A due Adminiflration of Juflice is not the leail
itt?i{t, wherein Princes are ftiled Gods : To deny or de-
lay Juftice is Injuftice ; Juflice is every Man's right
who hath rot forfeited what he might claim by the fus
Gentium.
C.^z fti^tent'ia jf therefore the Party cannot obtain his Definitive
^'^^'^'^.^^2^*' Sentence or Judzment, within a fit time againft the Per-
conjiit. Leg. ^o" of whom he complains, or if there be a Judgment
qui rejiiiuere givcH againll appar^t Right and Law \ yet if no Relief
de ret ^indic. q^^
Chap. II. M'ltttmof^amtt attti JRep?lfaL 29
can be had, the Bodies and Moveables of his Subjeds,
who renders not right, may be taken.
VI. In the Proiecution of which there mufl be,
1. The Oath of the Party injured, or other fufficient
Proof, touching the pretended Injury, and of the cer-
tain Lofs and Damage thereby fuftained.
2. A Proof of the due Profecution for the obtaining of
Satisfaction in a legal way.
o. Protelation or denial of Juflice.
4. A Complaint to his own Prince or State.
5. Requifition of Juflice by him or them, made to the
Supreme Head or State, where Juftice in the ordinary
courfe was denied.
6. Perfidency ftill, in the denial of Juftice.
AH which being done, Letters of Rcprizal under fuch
cautions, reftri<fl:ions, and limitations as are confonant to .
Law, and as the fpecial cafe may require, may ifTue not
only by the Jus Gentium and Civile^ but by the antient^.. _,
and municipal Laws or the Kingdom *. ^^ c.xo. the
latter Claufe.
Clauf. 7. Johan. Reg. m. 22. Pat. 15. E. 3. part. 2. dorf. 48. Pat. 23. H. 6. part, 2.
dorf. T4, I C.
VII. The Reprizals ^vznt2ih\t by the Ijxs^soi England^
are of two forts. Ordinary and Extraordinary, The Ordi-
nary are either within the Realm or without, and are al-
ways granted where any Englijh Merchants or their Goods Fitz. H. N,
are fpoiled, or taken from them, in parts beyond the Sea^''^- *H-
by Merchants Strangers, and cannot upon Suit, or ^^^ pj/ j^J/l i a
King's demanding of Juftice for him, obtain the fame, 14 h 6. par.
he ftiall have upon Teftimony of fuch profecution, a.'Writi-dor/.i^.iy.
out of the Chancery^ to arreft the Merchants Strangers ^^^^^-5 -6.
of that Nation their Goods here in England -, the which ^g ^2 £ 1
is grantable to the Subjedt opprefted of Common Rights h^ par. z.M. 25.
the Cbanceilor or Keeper of England^ who always in fuch^<?^/. 2. ^ 4
cafe hath the approbation of the King or Council, or^^/-^H-J25.
both, for his fo doing ; the other, which is for fatisfadion ^Ueycat^^zo,
out of the Realm, is always under the Great Seal. i Hak\ w/f,
Pl.Cr p.x'ol.
They are either, i . Particular to particular Perfons upon particular Occafions ; or,
2. General, which hath in a great Degree the Effeft of a War, though it is not a
regular War. S(i for more Matter the Place cited ; or above, C^ap. i . Siil, 6.
VIII. But
30 iOf %tttm of a^arquc an& mpvi^ah Book i.
VIII. But Letters of Reprizal granted in the Ordinary
way for reparation out of the Realm, which are always
under the Great Seal of England, cannot be revoked,
(though perhaps in point of State there may be a fufpend-
ing the Execution of them for reafon grounded on the
publick good) and the reafon wherefore they cannot be
annulled or revoked is, becaufe after the Perfon injured
lez. quirejli- ^^^^ petitioned, and hath according to Law made Out by,
tuerederei proof his lofs, and Letters of Requeft have gone, and no
<vindic, reparation made, then the Letters Patents of Reprizal be-
ing fealed, the fame does immediately create and vefl a
National Debt in the Grantee to be fatisfied in fuch man-
ner and by fuch means as the fame Letters Patents do
dire6l out of the Goods and Eflates of his Subjedts, who
Vide Treaty refufes or protelates to do right (however as the King
1666. Breda hath the Legiflative power of Peace and War in a publick
'^rt. 5. Treaty for the Nation's good, they may be mortified,
and then revoked by the great Seal in purfuance of that
Treaty j.
Nor do I fee it an a6l unjufl internal to deny the Exe-
cution of fuch Letters Patents, according to that of ^x.
Paul^ Ml things are lawful for me^ hut all things are not
expedient. Now to the true Interpretation of the word
lawful flriftly, it is to do a thing without violating the
Rules of Piety and Charity. Now there are many things
amongfl men which are not internally jufl, and cannot be
done without violating the Laws of Charity, yet are
^ini'Man. lawful to be done, as in the Law of the XII. Tables^ the
Creditors might divide the Dekor^s Body amongfi ther^L So
in acquiring' fatisfadion for Damages, the Lives and
Goods of Innocents may be involved in Death and De-
ft ruiflion, Vv'hofe peaceable Tra6t in Commerce never
gave them knowledge of this privatum Bellum, nor
were they Adlors in the Injury original. 'Tis true ex-
Omnia dat f«;ternally, according to that of L//r^;/, That Prince or State
jujta negat. that denies me rights gives me all. But the incomparable
Oral, pro Cicero obferves, That there are fome Offices to he done to them
Baih. from whom you have received (in Injury^ for revenge andpii-
nifljment mufi have a meafure. Now if the fupreme Power
does think that the Execution of fuch Letters of Repri-
zal cannot well be efFe6led without endangering the
Peace of both Eftates, there may be a juft caufe to ref-
chavm Mttttm of ^avdmmximmmi 3 r
pite the Execution till a time more convenient may oc- Eji enim ali-
rnr for that the Lives and Eilates. of thoufands may be ?^'"^' f^"'^ «''«
^ ',.1 •• r T- -^j oporteaty etiam
involved m the repairing of one Injury, private and J}.^^^ '^^^
peculiar: Nor do 1 fee the fame to appear repugnant ^,oM/7fl»^.
to the Laws pofitive that have been made for the award-
ing thofe CommiiTions. ■'Tis very true the t Statute t4H'tf»5.c.7.
reciting, " That at the grievous Complaints of the
" Commons o^ England ^ who hadfuffered many Wrongs
*' and Injuries in the Lofs of their Ships and Goods upon
«' the main Seaagainft Leagues, fafe-Conducls, and Tru-
" ces which were broken by the Subjects of other Na-
" tions, the fame Parliament reciting their willingnefs
*< to provide Remedy and Relief for the grieved by
<' fpoiland injuries done unto them beyond the Seas, up-
" on Complaint to the Keeper of the Privy-Seal (on full
" evidence fhewn) he fliall fign Letters of Requeft: to
<« demand reftitution and reparation to the Parties
" grieved : Which if not made in convenient time, then
" the Lord Chancellor of England fljall grant Letters of
*' Reprizal in due Form of Law for the Indempnity of
*' the Perfons interefted and injured." Yet this does in
no refpedt reftrain the King's Prerogative and Autho-
rity, which he had at the Common Law in the judging
the conveniency and time, when to be executed. Nor
does the fubfequent Statute f, reciting : " WiljZltdi^ Bl- ti4^/4.<r 4.
" Decs great offenceis uiete often commtttea asainff
" jLcasuegjCuiices, auD amities bettnecn tfjei^mg
" ano otijei* ^mtzr^ o? S)tate0, agatiilt fafe-Con-
^' Xim^ ana licences^ anD againfi t&e iLatug ana
^' ©tatutcg of tfje Eeaim (m tljat cafe mace anQ
'' P^oniCeD) to tlje great (iantiei: of one ©otjcrergit
^' tm tlje MM'^ ana tlje Damages of tije gooti
^' %\x\s\za& tlje Commons; of Enghnd. 3it m^
'^ muXm fiDjoainen, (Eliabliajec, enacted, ana
^^ ConficmeB Op tlje Ccnfent of tljelo?tis ©pirttuaf
^^ anD CempojaL ana Commons afiembieti in {Mi-
" liament, Cftat all ©tatntes anB £)j5inanceg
*^ againtt tlje ©ffentiers of leagues, duces, fafe-
'' Concuets, ano Sinuties ftallbe in fuUfojce, n-
'^ cepting tfje Claufe m tlje act toWcti maue it Oiglj
'' ^teafon m tlje feecono ^eat of Hen. 5. xhere^
fore it is plain there were Statutes made for the more ef-
fectual
iSDf jdettcrg of ^avaue ana istp?i?at Book i;
fe6lual providing for the Subjed, and Letters of ReprU
fJohan.Reg.z^lSj they being granted long -f before the Statutes, and
fneml^ 22. the King's Prerogative not the leaft diminifhed, but
f^^"^5--^^-3-i-emainino; at the Common Law to iudo;e when expe-
Client.
IX. And fince the granting of Letters of Reprizal
does not, in the ordinary way for particular fatisfadion,
amount to a breach of the Peace, I have thought fit for
the excellency and care that is had in the compofing
Fi^e §. 15. and framing of them, to recommend one that was grant-
pojlea. ed upon Solemn Advice, and for the Reafons therein
mentioned.
X. The Extraordinary are by Letters of Marque ^ for
reparation at Sea, or any place out of the Realm, grant-
able by the Secretaries of State, with the like approba-
tion, of the King or Council, or both ; but they are on-
ly during the King's Pleafure, and to weaken the Ene-
my during the time of War, and may at any time be
revoked.
T/lachia'vel on XI. As PrInces by the Laws of Nations are refponfiblc
his7//.Z-/i/. C. for injuries />;^Z'//V/^, fo lliould they by the mod prudent
A Prince in ways imaginable prevent thofe that are private^ not
J^j^^j^.^^'^S^fuffering Foreigners, if pofTible, to receive wrongs in
try but for a"^i"^cii^ Countries : For, as the Florentine obfcrves. If a Man
Xcad of he exceedingly offended^ either by the publick, or by any other
fihcep. Skins, private handjin a Foreign Nation^ and cannot obtain repara-
Philip Comines ^^^^ accordin? tojufiice^ he will never leave blowino the Coalsy
Ditcii Bur- ^^ ^^^fi promoting tioe injury^ tilt the fiame break out into
guild. War •, in v;hich he cares not if he fee the ruin of that King-
dom or State, where he received his wrongs.
Nor fliould the Prince or State of the Perfon injured,
value his Misfortune at fo low a Rate, as to deny him
Letters of Requeft, for that were to heap up injury upon
7,eg. qui r^j?;- injury ; but likcwife, if Judice be denied after fuch re-
tuerederei qutd, to arm him with pdwer to take fatisfaclion by re-
innduat. prife, «t;/, manu & militari.
Generally there always proceed Letters of Requeft^
two or three, more or lefs ; and according to the fatisfa/
<5lion, fufficient or infufficient, returned in anfwer to the
fame, Commifilonsare awarded.
Resjudk. fro XII. SubjeEls cannot by force hinder the Execution evett
<veritate habe- ^^ r^^ unjuft Judgment, or lawfully purfue their right
tun yet It 18 J ^ o J s: o
, Ch AP. II. £)f %ttttv& Of ^atqttt ana mtp^i^ah 3 1
by force, by reafon of the efficacy of the power over them : as true,yu^ejs
But Foreigners have a right to compel, which yet ^^^^ey^^^^Vy^^^^^
cannot ufe lawfully, fo long as they may obtain fatisfa-^^J/^f^"^ '
6tion by Judgment. But if that ceafes, then Reprizal is
let in.
XIII. Now Judgment is obtained either in the Ordijiary^^ cum per in^
Courfe, hy W2iy o^ Profeculion^ or Suit ^ ox Appeal fxom tht^]^^^^^^'^^^^'
fame, after Sentence, or Judgment given, to a higher ^«^^^^//^^;V
Court ; or elfe in the Extraordinaryv^'^y y which is by vi2iynonfuipt, aB*
of Supplication, or Petition to the Supreme Power ; but^"''^^ ^^^^j.
we muft underftand that to be, when the matter in ^^^-^ZtumfL] ^
troverfy is, tarn quoad merit a quam quoad modum procedendi \qucsritur an
not doubtful, for in doubtful matters the prefumotion \%[oluto dehitori
ever for the Judge or Court. . , rejutm earn
But the Reprizal muft be grounded on wrong ^^^^g-tt'oTllSu
tnent given in matters not doubtful, which might h.^yt rejiituendam
been redrefled one way or other; either by the ordinary ^^^j^^i'^'^, Leg.
or extraordinary power of the Country or Place j and-^^'^f^^^^"*.^*
the which was apparently perverted or denied. ^J'^-Pi •
But if the matter be doubtful, then otherwife ; for in
Caufes dubious or difficult, there is a prefumption always
that Juftice was truly Adminiftred by them who were
duly Eleded to publick Judgments.
XIV. And yet in this latter Cafe, fome * are of Opinion, * ^^^^f^ ^eki-
that if the Cafe were dubious, and if the Tudg;ment were^/'*' hcet abfa-
. n T>,-i io rrj-1- tutus fit naturct
againft apparent Right, the Stranger opprefTed is let into ^^^,^ ^,^,v,^
his fatisfadlion ; and the reafon is, becaufe the ]u<^^d's per mane t.Pau-
Authority is not the fame over Foreigners^ as over SuhjeBs^ i^^ Leg- Julia
for the reafon above-mentioned. %tor!'^' '"*'
If an £;?^/z/^ Merchant fhall profecute a Suit in the Or-
dinary Courts of the Law beyond Seas, and Sentence or
Judgment fhall pafs againft him, from which he appeals
to the Supreme Judgment^ and there the firft Judgment or
Sentence is affirmed, though the Complainant hath receiv-
ed a Judgment againft the real Right of the Caufe, yet
this will be no caufe for Letters of Reprizal, though per-
haps it rhay occafion Letters of Requffi (if there be ftrong
tifciimftances for the fame) to have a rehearing of the
Caufe.
But if ah Engtijh Man fliall recover a Debt there, and
then the Officer having the Debtor in Cuftodv, will wil-
G fully
1
3 4 ^t letters of ^av(\m antj mep?(?at b o o k. i.
fully let the Prifoner efcape, and then become infolvent,
the fame may perhaps occafion Reprizal.
h^ullivevde- \n England^ If a Foreigner bring an Adlion Perfonal
mus, nullt ne- ^p-j^jp^- J ^^ and thc matter is found fpccial or z^neraL andii
deferemui ^^^^ P'^'^Y P^^Y^ Judgment, and the Court refufes it -, andft
jufiit'iam, then the Defendant dies, and with him the Adlion, (th©_^
Grand Char- nature of it being fuch) the Party is here without Re*|)
^^^M '6 "^^'^Y' ^^^ ^^^^ ^""^y occafion Letters of Reprizal, if itjj
' ' ^ ' be accompanied with thofe Circumftances that evince an^
apparent denial of Juitice, i. e, as putting it off froni||
^erm to Term without caufe. ?g
An Englijh Man purfues his Right in the legal Courts'fi
beyond Seas, and the Military Governor oppofes the
profecution, and by force conveys away the Debtor and'«l
c {^ { ^^s Goods, the Sentence or Judgment is obtained : its
Slaughter, ultimate end being Execution^ being thus fruftrated, may
Z^eagainil the occafion Letters of Reprizal.
Governor of XV. Perfons murder'd, fpoil'd, or otherwife damni- *.
fhfpe'tkionoffi^^ in hoftile manner, in the Territories or places be-'"
GW^and longing to that King, to whom Letters of Requeft are
Canha?n mer- iffued forth, if no fatisfaclion be returned. Letters of
^^°^^' j" Reprizal may ifTue forth ; and the Parties Petitioners are
whTch two°""°^ ^" ^^^^ ^^^^^ compelled to refort to the Ordinary pro-;'^
Letters of Re- fecution : But the Prince of that Country, againft whom^
queft were the fime are awarded, muft repair the damage out of his •
lent to the ^j. j|^g|j. gftates, who committed the injuries ; and if that
¥ufaim "fo^r° P^ov^s deficient, it muft then fall as a common Debt on
redrefs.' his Country.
Such Letters of Requeft generally allot a time f cer-
MafTacre at i ^^"^ ^^^ Damages to be repair'd, if not, Reprizals to ilTue
AmboyrM, andforth : A fingular Example of which you will find here-
the other de- under,
predations
'Committed by the Flemings on the Englijh, his Majefly in 1625, ifTued forth his Let-
ters of Requeft to the States of Holland; for Satisfadlion within 18 Months, otherwife
Letters of Reprizal. /''/V^ Journals of that Year, ^nd Leo Jiizma, ^. 4§. 13. 41. 82.'
So likewife Letters of Requeft went to the King of Spain, requiring Satisfaction for
the depredation committed on the Ship and Goods of Mr Sfampe, who Was fpoilcd
and murdered at the Hu'vanna, Anno 1674.. /^/Wi? the Proclamation 1675. of Reward-"
promifed by his Majefty for the apprehending the Offenders dead or alive.
A Copy of Y^HARLES the Second, by the Grace of God, of
fen"^"f^^" ^^ England, Scotland, France, and L'eland, King, De-
fpecial Repri-f<^^der of thcFaith, ^c. Co alt Cil2(ffla« People, to
2 ttj{)gm
Chap. II. Of Letters of Marque and Reprkal. ^S
ixiijom tfjefe |0?erents fljall come, greeting: zaisfrom the
WHEREAS Otli: fOWnp: g^UbfCCt WiUiam CounenA''!Z^^ Great
cfH; ncceafcD, ano l)i0 jpattneris ^itno 1643. bP tlje^;;;;;"^^."^^^^^
neprecation ano ftaftileact of one Oaiiand, Com= seai of £;;^.
mmut in cDief of CtDO @!ji})0 befongtUB to tfje/w) againn
eaft inDia Compaiip of tije Netherlands, m$ be- j!?^ States-
tmm Goa aim Maccao lit tlje ©traiffWS of Malacca Y':"''^^^^^^^^
DepjiticD ano nioft iniutioufi? fpoitea of a certain inroiied in the
®ljip nameU tlje Bona Efperanza, mXl} Of IjCC Cacft^ High Court
ling, flppate!, anD fucnitnre, anti all tfte ©oot^gi of chancery,
anD laaniff in Ijer, upon a Derp ftopeful tta'oino; ([iop--}? ^^"> ^s-
age to china, iDljicl) Uiere cameD to Batavia, ana^'"' ""*
there all de fado luitljout »ne ^jocefs of jLato confif-
cate». ^nti tfjat alfo in tfje fame J^ear another
(aoen %m of ©ar UiiD ©ubfect, caiieD tlje Henry
Bonadventurej being: comc on ©iGuuti near t&e 3iflano
Mauritius, m$ ti)ttt botlj ®ij!p anD ©OO»0 feijcD
[ipon bp fome of tlje ©fficerg ano a^intilerg, anD
otljers unoer tlje ConimanD of tlje faiQ (£afr3int!ia
Eompanp, ano utterip netatnen from tlje rfg^t
mmtS. AND W Fl E R E A S t&e faft William
:ourten, m\} lj!0 Mm& ^^^ W life time, ufea alf
joffible enneaDouriS to recover tU fairs Sljips ana
Saofisi, ann to procure furtber 3!ufttce agafnl! tlje ®a^
efa(to?0, ann pet couio obtain no Eeftitution o| ®a-
:isfactian, toberebp tljep became mucb to be Diffreflen
nin utterip unoone in tbeir €(!ate ano CreOit t ^no
liat thereupon, anD upon tlje moll fjumble ©uppli^
:ntionjSl ano ;aOO?eirej5 of Francis CEar J of Shrewfbury,
iiiO William Courten, Cfq*. ©^anO-dCbilo ano |)eir of
IjefaiO Sir William OeceafeO, sir John Ayton anOSir
idmond Turner l^nlffljtlS^ George Carew aitO Charles
^Vhicaker (iEfquire0, on tlje beljalf of t&emfelSies anti
JiSetiSi otljers interefleo in tlje faiO ttoo ®W$ Bona
ifperanza, anO Henry Bonadventure, anO itt t^t
EttateS of tbe faiO sir William Courten BCCeafeO, Sir
idward Littleton TBaronet, anO Sir Paul Pindar Jl&nigbt
5Eccafco, t&at mz mm ta&e tbetr Cafe into SDnt
minmp confioeration. weoutofajust
5ENSE 82Je tljen baO anO ffill Ijabe of tbeir mnuS
bufferings in tbat buflnefs •, botfj bp Our
3U)n letters unoer our sign Manual to tl)c
States-General Of tljC United Provinces, anO W Sir
C 2 George
J
36 Of Letters of Marque and Reprizal. Book lljl
• George Downing lUttfflJt ailB IBatOnCt, 2DUt CntiO^ll
cEirtraozliintup, to luljom Mlc ga^e ^fpecial €am^
manti fc to no, rcquireti fattgfactioit to be niafie i»^|
co?OiiiD: to tlje Eiucs of Suflice, ano tlje aniiti? aiui
good co;;iefpon6cncc, tuljiclj UXz tijrn UeOteD to con^
fecac toit& tljem ficm ana intiiolable* a n d
WHEREAS after federal atiDjeires niatie to tSe
faiD States- General bP OUt faiO CtlbOP, anO nOtfjttlg
gtaiitea effectual foi Eelief of SDur faiD ©ubiectj,
(toliom tue tafee SDiitfelbcs in l^onour aiiO 3«ff(cj,
conc£trte5 to fee fatigfien anti repaiU) ^e iateto
commauoen tlje foto sir George Downing to (nttmaft
nno fignifp to tlje ratn States, tljat toe ei:pectea tbeft
final anfUier, concerning fattgfaction to be mk
fo? tlje faiD @l)ip0 ann <©oo5S bi> a time t^en p?^-
firea ana frnce elapfea, tljat mz misljt fo goaent
£)ur felbeis tljereupon, tljat ©ur aforet'aia ©ubiectjs
miBljt be reliebea accoraing to Eigbt ana 3utticg;
ana pet no fattsfactorp ^nftoer Ijatlj been giDen, fo
tbat OUe cannot but app2eljena it to be, not onlp a
fruitlefg Cnaeabcur, but a p?oft!tuting of laDur %^
iiour ana Dtgnitp, to make furtijer application
after fo \wm aenialiei ana fligfitingis* ANp
WHEREAS John Exton, DoCtOr Of IM%
2uage of our iptglj aamiraltj? Court of England,
upon our Conmiana, to certify to CIS tlje aialue ^\
t&e loffes ana Damages futtainea bp tlje faia m
liam Courten aua PartuetSj toljofe Sinter^a is ndlD
fteffea \\\ our lObing ®UbfeCtS, sir Edmond Turner,
ffitnigfit, ana George Carew, cfq, aua Ipartncuft
ftatlj upon full Cramination ana l^^oofs tbereo!
niaae bp axUitneKes in SDur Diglj Court of amiii-
taltt«, repo?tea ana certifiea unaer ijis l^ana, t|)at
tbe fame ao amount to tlje ©urn of ©ne ipunarei
fiftp one Cljoufana fir |)unarea ana ttoelbe I'ounasi^
NOWKNOWYE, ctiat foi a full rettitution
to be maae to tbem fo? tbeir ^ljips> <Sooas m
^ercbanaijes, of inljiclj tbe faia wiiiiam Courten,
ana tbe siirigns of tlje fata Wiiiiam courten anti
ISartners, toere fo aefpoilea as afoiefaia, toitb all
fuclj Cotts ana Cljaiges^ as tljep fiiall be at fo? tje
recoberi) of tlje fame, Mie bp tlje aaaice of ©iii;
f 2tbP Council ija^e tfiougljt fit, ana bp tljefe lP?e-
feiUjH
)
Chap. II. Of Letters of Marque and ReprlzaT. 37
fentis BO (r?ant licence ana srut&mft)) unfier ©ui:
0tznt @cal of England, unto Qut fain &ubiects sir
Edmond Turner attt! George Carew, tljeiC eereClltO?g, .
aftmmiffrtitorg ano affigns?, fo? ano on tije beijalf
of tf)emfe{Dt05 ana otfter petfons intercffeD as a-
fojefatD, to equip, \)\amh futniflh anti to fet to
fe>ea fcom time to time, fuel) anD fo man? ®|)tpis
nnn 15)inaccs as tDep fljaii t&inft fit. provided,
altoaps tijat tf)ere be an (Bwuy maoe auo ixcocBeti in
tlje aomtraltp Court of tlje Bamt0 of alt ^Ijips
ana QetTelg, anii of tljeiu HBmmx ano ammmiition,
ann fo? ftom long time tfjep ate aictiiallen : ano alfo
of tlje i3ame of tbe Commantiee tljereof> befoje tlje
fame 0? mv of tljem be fet f02t& to @ea ^ ^m \iiittt
m faia ®ljips ann pinaces lip fojre of atmis to fet
upon, take ana app^efieno anp of tfie ©fiips, ©ooosf,
ponies ann ^eccljanaijes of tlje states General, 0?
anp of tbe ®ubject0 mljabitino; tettlnn anp tbeit Do-
minions 02 Cercito^ieS, tofcetefoeaer tbe fame fljall
be founo, a no not in anp Pmt 0? |)atboui: in Eng-
land, 0? Ireland, tmlCfS it U tl)Z §)!}ipS OUtl ©OOBS
of tbe i^arties tftat Bun tbe sajcons* ^na tbe faia
®ljtps ano ©ootis, ironies ana seercbanfiijes, be-
ing: fo taken ana btougbt into fome pp?t of SDur
Eealms ana Dominions^ an Jnuentojp tljeteof fljall
be taken bp autbo?rtp of ©ur Court of ^amtralti?
bv tbe 31uage 02 Jfuageis thereof, fo? tbe time btinSy
upon proof, maoe before bim 0? tbem, tljat tbe faiO
§>bipS5 ©ooas, Mares, ^^ercbanaif es or #0nej?,aiD
belong to tl)Z states General, C| anpof tljC ^UfejeCtS
as acojeftita. Cljat tbep iDaU be imM prt?e to
tbe fata sir fidmond Turner anO George Carew, tljCiC
(]£,recnto?S5 StaminiRratojs ana ^fiSgns as afbre-
faia, to retain ana keep in tbeir o? anp of tbeit i3of-
feffions, ana to make fale, ana aifpofe tbereof iit
open Market 0? botofoeS3er elfe, to tbeir ana eberp
of tbeir bed aasantage ana isenefit, in as ample
manner as at anp time beretofo?e batb been accu^
ftomea bp toap of Eepiijai, ana to babe ana eniop
tbe fame as lawful #?i5e, ana as tbeir oton p^opec
oSooas: so THAT '^ NEITHER Captain,
'' ©afler, no? anp of tbe Companp, tbat (ball ferbe
V in tits oton p?rton^ o? (ball pjomote ana aabance
c ^ ?> m
3^ Of Letters of Marque and Reprizal. Boo k I.
<^ tfje fain entcrpjlfe (n niannec ana fojm afo'craiB,
^' ftiall in mxp manner of toife be reputeu n? cljal-
. ♦' lentyeo fo? anp ©ffenner njjainft anp cf our tm^,
' ^' anti tljat alfo it fljall be latofiil for ail manner of
<' perfons as tuell onr fe^abfectg, as anp otiier, to
^^ bt!P tije faiU g^ljfps, ©ooiis, ano SEJercljanDijes
^« fo tafcen ano npp^eljenCeD bp tije faio Captaing,
^ ^^ ^aifers ann ntljers, ann aD)iittin:eD as afo^etaio,
'' luitijcnt anp Damage, tofs, i^mucance, Croii-
'^ ble, 0? molettatiou, oz incumbrance, to befal tlje
^« fain mimSy o? anp of tljem, in as ample anu laui-
*' ful manner, as if tlje Sljips, ©oons, CDHares^ ano
^^ a3ercbanbi?e, ijao been come ana gotten bp tde
^«^ !aU3fnl Craffick of a5ercbantS) o? of iuft pjijeu
^^ in tije ^ime of open mm provided al-
loaps* tljat all feftips, ©oofls, ana asercJjanaije,
tahen bp Wcttie of tljts ©ur Commiffion fliall be
feept in fafetp, ana no part of tljem uiaSea, fpoilea
V 0? Biminifljea, o? tlje wnlbi tljereof b^ofeen, until
Siuagment ija^e firft paft as afo?efaia, tijat tljep
s lire tbe ^fjips ana ^ercljanai^cs of tlje states Ge-
neral, 0? fome of tljeir subjects as aforefata. 3na
If bv colour of tbis our ComnnfQon, tbere fijall be
taben anp ©{jips^ ®ooB0, or asercbanaijes of anp
of our lobing ^utjectS) oj tbe Subjects of anp
grince, 0? ©rate in gooa league, o? amitptoitft
&$ fe^Cept tlje States General) 0] tljeft fe^UbjeCtS aS
afojEfaia, ana tlje <©ooas tfjerein laaen, foia ana cm-
bejj^elea, oj aiminifljea, oi tfte ii^uife tbereof b?ckcn
in anp place before tljep ftali be aajuagea to be-
long to tfte States General, 0? fOUie Of tbetC ©UbjCCtS
as afoaefaia, tbat tben tljts CouniufOon ftall be of
no Sufficient autbotitp, to tafee tlje fata &bips»
®ooas ana ^ercbanaijeiSj bi to warrant, oKabe
Sarmlefs fuclj as fljall receibe, blip o? intermeaaie
tljerein •, but tbat botb tlje prices fo tafeen, ana tbc
fata &l)rp of taiar, fljall be confifcatea to our 2lfet
*^ AND FURTHER, UiZ BO JjCrCbP acclarf,
'^ tbat it is our mui ana i^^ieafure, tijat tbiS SDuc
^^ CommifTion Ojall remain in full fojce ana poU)er,
*-' to all intents ana purpofes> until tbe faia sir
<• Edmond Turner, aua George Carew, tljCir €K£CH-
^' tois, saamimfttatojs^ ana affigns^ as afo?eiaia;
'' lual(
Ch AP. L Of Letters of Marque and Reprizal. j9
fi 'ymn bp fifmie tijeitof {?aUe bp fo?ce of arms ap- *
fl 'rpieimmii, taken, filseo- recoSBC'D; ajrt receitieii
^r from tije faio states General, 0? tijeiu ^ub)rct0, one
" i)mmm fiftp one ttjoufanH Gi: ljuno?eli anli ttoibe
" #oanii3, acco?tiinff to tt)C appjaifcment to fe
*^ maDc bp fufflcient app?aifers, upon ©atlj nonu=
'' nateti a»a outljoifjeD in 2Dut: liuD Court of 38-
'' niiraltp, of all fucfj MiVS. ©ooBjS, ©Hare0, ano
'* SPercftanBi?e0, as ftall be tafeen from tlje fain
'' Stares General, 0? aiip Of tbClt ^UbjCCtS, b^ Wr-
'^ tue of tins CommiifiDH, o? fijail ctljcrtoaps re-
^^ cetie fatisfactton of t&e Debt afo?efatO) bp€om^
'' pontion to be maoe betujeen tbofe of tlje mtt
'' 3nDia companp of tije Netherlands, aiiB tlje faia
^ Sir Edmond Turner, ailO George Carevv, tl)2it
'' €,recuto?05 ammniGrato^S ana affign^, as afo?e-
« faiti* NOTWITHSTANDING It fo Ijappen, tlje
" p^efcnt Difference bettoeen €ls, ana tbe States-
" General, aepenoing upon general Eepjifals^ map
** be agixea ana compofea, ana t&at in tU 3inte-
'^ rim a ^aeace ana gooa Co?refponuence mop be
'' reneiDea bettoeen ais ana tbe fata States General :
'' In which Cafe ncverthelefs, 3It (S SDUr mtU aUB
« pleafiire tljat in tlje etetntm of tt}iS ®ur Com-
'' mMoih m fiJiolence fljall be aone to tfie 3^erfons
^^ of ttje fata ©UbjeCtS of tlje faia states General,
^' but onlp in Cafe of Eefiftance. ana tljat aftec
'' in cola TSlooa. tbe .^ubiects of tljt fata states
'' General, if l)jirt or ttJounaea, fljall be ufea toitlj
" all coni^enient office of Ijumanitp ana feinanefs.
" AND FURTHER, fflur l©i!l ana picafure is,
" Cljat altljouglj it Kjail Ijappen tljat all i^offili^
^^ ti> bettueen Qs ana tfie states General, ana SDnt
<* refpectiSe subjects (ball ceafe, pet tljts ©ur Conv
'^ miifion fljall remain, ana be m full jfo?ce ano
*^ ?^0lner, to tbe faia Sir Edmond Turner, SUa George
^* Carew, tljeir ci;recuto?s, 9aminiOrato?s, ana 9f*
'' fiffns, as afo?efaia, bp iirtue tljereof to app?e*
*' bena, tafee ana feije, bp iToice ana armg, fa
'' nianp mo?e of tfte faia ^Ijips ana ©ooas of tlje
[' Stares General, 0? aup Of tljeir (atB ^ubjects* as
•; befiaes tbe fata ^umbefo?e'mentioneafl)all coun-
•! tertiail, fattsfp, ana pap all f«c& Cofls ana
c 4 :: €mm
io Of Letters of Marque and Reprizal. Book I.)
^' CljaCffCS as tlje fatO sir Edmond Turner, dtia
•' George Carew, tMt (£rCCUtO?0, 9linUnfaratO?g,
'' 0? ateung, as afo^efaiD, CEiaH from time to time
'' mafee i&?oof to fjaSe msbucfen, nnti paiiJ totcacoiai
^' tfte equippino:, manning:, paping, fliwiifljinij, ana
** SirtnaHtno; of tfje faia ^Wpis, fo Itcenfeo ano an^f
" tljon^en as afo?efaiD, bPtljigom: fain Commit
^' Con to be cquippeD, niannin, furnifljeU, ann Die-;
^' tualletl, bp tlje faiO sir Edmond Turner, anD George
" Carew, tljeit eitecuto?^, acmimftcato?^, nno ap
" lim^ as afojefaio, fo? tije f urpofe afojefaio*
AND OUR WILL anH ^leaftite is, anu me Bo
\ittz\sv nqmce ©ui: SluBge o? SuBgeS of ©ur Ijiglj
Court of aomiraltp, fo? tije tjcime being, anB all
qtfier ©fficeris of tlje aamiraltp, anB all otijer
our JuBge 0? SuBges, ©fflcers, Siginitterg, anB
S^ubiects uiljatfoeaer, to be aiotng ano aJTifttng to
tbe faiB Sir Edmond Turner, anO George Carew,
tbefr <erec«to?s, 9Bmtnifirato?s, anB afCgns as
afo?eraiB, in ail points in tbe Due dEjrecutton of
tljis Our Eopal Commifiion, anB to p?oceeB to
9BfuBications, anB aBjuBge all J^ljips, ^erctjan-
tiijes, ironies anB ©ooBS bp (Hirtue tljereof to be
tfikzn, acco^Bing to our ^rincelp 3intention, Ijere^
bp fignifieo ana wprefleB, ano tts tafee Care tbat
tftis S)ur Eopai Commiffion to be Bulp erecutcB,
ano faaoutablp fnterpieteB ana conRruea in all re-
fperts, to tlje ^Benefit ana bell aauantage of t&e
faia Sir Edmond Turner auB George Carew, t&Ctf ^Xt-
cut0?s, atiminiflratc?s, ana aifigns> as afo^efata*
IN WITNESS Mjereof, mz ijalje cafca toele Dur
Letters to be maae patents* JKHitnefs SDurfeir at
Weftminfter, tbe ipch ©ap Of May, lU tfiC SeBeU^^
teentD fear of ©ur Eeign,
* . - ■ -
BY THE KING.
XVI. It is not the place of any Man's Nativity^ but his
Domicil; not of his Origination but of his Habitation^ that
jfubjedls him to Reprize : The Law doth not confider fo
much where he was born, as where he lives ; not fo much
where he came into the World, as where he improves
the World.
If
chap.ii. 0f %ttttt&of^^t(\mmiiMtpmai. 4?
If therefore Letters of Reprizal fhould be awarded
aaainft the Subjeds of the Duke of Florence, and a Na-
me of Florence, (but denizened or naturalized in England)
Ihould have a Ship in a Voyage for Leghorn, if a Caption
ihould be made, the fame is not lawful, nor can the fame
be made Prize. Yet by the Laws of England, a natural
born Subjea cannot diveft himfelf of his Allegiance ; tho'
he happens to be com.morant in the Enemy's Country.
XVII. It doth not any where appear, that Reprizals
can be granted on Misfortunes happening to Perfons or
their Goods, refiding or being in Foreign parts in time of
War there ♦, for if any Misfortune happens, or is occafi-
oned to their Effeds, or to their Perfons, then they muft
be contented to fit down under the Lofs ; it being their
own fault, they would not fly or relinquifti the place,^
when they forefaw the Country was fubjedt to the fpoil ot
the Soldiers, and devaftation of the Conqueror.
The Fadions of the Guelfs and Gibellins in Florence,
warring againft each other. The Guelfs obtaining the Vic-
tory, and thrufting the Gibellins out'of it, after they had
taken the City, Bomum cujufdam Hugonis de Papi in hoc j^^^j^ ^-^^^^
Regno Anglic demorantis diruerunt, and plundered his i?^/. 53. (in
Goods therein, ([ui Hugo fupplicavit Domino Regi, ut Inderhefaur. Re-
It ali Merc at ores (of that Fadion and City then ^^^^^g-f/^',ff,'^Z
land) emendas hie fihi facer ent -, upon which ^^(^j^i^^^^^^f^ RegeF/ounti^,
fuit, quod dim Mercatores di^o Hugoni fatisfaciant^ pro
damnis fufceptis, ^ deflru5lione domus fu£ : upon which a n^g Rot Fa/
Writ of Error was brought, and the Judgment was re-ro«z>28 £.3.
verfed in thefe words ; ^bd non efl confuetudo Anglic de ^°^;JJg^'^'
aliqua trmfgreffione faUa in aliena Regione, tempore Guerre, Jy ^.^.j^^^
vel alio modo confideratum efl, quod iotus proceffus ^ Corke in Hi-
ejus effeffus revocentur, &c. ^ berma. ^
XVIII. By right (for fo it is now called of rtr\&mg ji^^ fad/ne tu
like for like) there are many perfons exempted^ and ihoft RegiumNm-
^hofe Perfons are fo privileged, have alfo proted ion for ^^«^^^^^^^^^^
their Goods, fome by the Laws of Nations, fome ^ by the ^^'^^^j^j^f^/.
Civil Law, others by the Common Law \ among which Am- tif^ue meos.
haffadors by the Laws of Nations, their Retinue andTheAmbaf-
Goodsare exempt, coming from him who awarded ^^^ ^^°"^fbdng
Reprize, the Laws of Nations not only provided for the •jj^^J'jj' by
Dignity of him that fends, but likewife the fecure going the Carthagi-
and coming-of him that is lent. «^'^«^, ^"^
.. - ^ - . - ]^Qj. 5r;>/tf's Army
42 jfiDfXeftct!SoE0parqueantiBcpn?aI* Book i.
having fur- Nor againfl thofe that travel for Religion, nor on Stu-
^^^'^vf'T^A ^^"^s, Scholars, or their Books ; nor on Women or ChiU
f"the CaT-^ ^^^" ^y ^^^ Civil Law : nor thofe that travel through a
thaginians. Country, flaying but a little while ther^ *, for they are
was demand- only fubjc(5l to the Law of the place,
cd what gy ^i^g Canon Law Ecclefiaftical Perfons are exprefsly
STetotLm/xe^ipt from Reprizals ^ . ^ ,. ,
anfwered, A JVlerchant or another place than that agamlt which
not as the Reprizals are granted, albeit the Fadlor of fuch Goods
Carthaginians ^^^^ ^f ^}^^^ place, is not fubjcfl to Rcprizals.
t\l\omans! XIX. Ships driven into Port by dorm or fbrefs of wea-
ther, have an exemption from the Law of Reprizals, ac-
cording to the Jus CGmmune^ but by the Law of England
otherwife, unlefs exprefsly provided for in the Writ, or
CommifTion.
But if fuch Ship flies from his own Country to avoid
Confifcation, or fome other Fault, and is driven in by
ilrefs of Weather, fhe may then become fubje6l to be
prize.
But it is not lawful to make feizure in any Ports, but
in his v/ho awarded the Reprizal, or his againfl: whom thfe
fame iflfued ; for the Ports of other Princes or States the
Peace of them are to be maintained.
, XX. Ships attacked by thofe that have Letters of Re-
J/to)Tmhino'' '9^'^'^^'> ^"^ refufed to be yielded up, may be aflaulted and
centium, a^^A-cutrcd ; and though it may fall out, not by intention, but
talicaufaobli-]Qy accidcnt, that fome of thofe |hat fo refifl;, may hap-
ratup forte ^^^ ^^ \^^ Q^jn^ yg|. ^^ Fault will lie at their own Doors,
^ILdaTiquos ^^^ hindring the Execution of right, and that which the
fvpulcs, eo ni' Law mofl: juflily approves of.
mirum quod
<rederent uniculque hominumjus ^ita plenum ejfe infe, ^ ad rem puhlicam potuijfe tranj-
Jerrif quod minime ejje prohabiUy nee fanEliori Theologi/e confentaneum. Grotius de Jure
/" helli iib. 3. r. 2. ^.^^And feems to be of opinion by the Law of Charity, that the
Profecution of right for a Man*s Goods, which inevitably muft be by the Life of Alaii,
ought to be omitted. Lib. 2. cap. 10. Liv.Iib.z.
XXI. This right of changing of Z)(?;«/«/^« is fo odious,
that in the taking of Goods, if by any pofllbility the right
Owners may have Refl:itution, the fame hath been done ;
and though a larger time than 24 Hours may happen be-
tween the capture and recapture, and fo may pernoBare
with the Captor 5 yet Refl:itution may be made.
If
ch AP.ii. fSDtHtttmot^avdutannnmmt 43
If a Ship be Prize or not, this fliall be tried in the Ad- Prize or not
miralty, and no Prohibition fhall be granted. The Cafe P^^^^. j^^^^f
was, there being War between us 2ind Denmark^ ^ -^^^^^" rifdiaion, "
teer of Scotland took a Ship as Prize being a Danijh Ship,
and Ihe was condemned as Prize by the Admiralty in
Scolknd', And brought her upon the Land, and S. Jibell'd
in the Admiralty of Englajid-, and fuggeiled that fhe was
not a Danijh but a Ship of London^ per Curiam, In as much
that the matter is Prize or not Prize no Prohibition.
^ompfon and Smith i Sid. 320. 2 Keehle 158. ^ 176.
One who had Letters of Marque in the late Wars a Ship taken
with the Dutch, took an Ojhnder for a Dutch Ship, and at Sea as Prize
brought her into an Haven, and libelled againft her as f^^^^ ^^ ^"^<1
Prize, and the Oftender libelled in the Admiralty againft ^^jj^^^^"^""^'
the Captor for damage fuftained, for the hurt the Ship
fuftained in the Port, and a Prohibition was prayed, for
this that the Suit is for damage done in the Port, for
which an Action lies at the Common Law ; but the Pro-
hibition was denied, becaufe the Original being a Caption j^^Ty;^;^;?^^^^
at Sea, and the bringing her into Port in order to have ^^^^^^ againll
her condemned as Prize, is but a confequent of it, not ^^f^^^^»^ ^
only the Original, but alfo the confequences Ihall be^'^^*
tried there. 'Turner and Cary cont. Neele i. Lev. 243.
1. Sid. ^6j. 2. Keeble 360. 364. r. Vent. 173. Radly zud
Delbow con. Egksfield and Whital 2. Keehle 828. and
2. Lev. 2^. 2. Saun. 259.
And therefore if he, who hath Letters of Marque or Barthol. in
Reprizal, takes the Ships and Goods of that ,Nation, Leg- fi quid
againft whom the fame are awarded, and brings the fumQ^J^^^j^-^^^^l''
into a Neuter-Nation, the Owners may there feize her, j„"^i^„ J, ^^'
or there the Admiral may make Reftitution by Law, as hojiihus, c. de
well of the Ship's Goods to the Owners, as the Perfons Capt. Conji. -
captives to their former Liberty ; for that the fame ought ^^^''- Jo. ///.
firft to have been brought infra Prafidia of that Prince or ]:o'nfu/ Marts
State, by whofe Subjedls the fame was taken. ' 287.
And with this agrees the Common Law \ for a Dunkirker Trin.iyCar.l.
having taken a French Veflel, fold the fame at Weymouth, in B. R.
whither it had been driven before it was brought infra March 'Rep.
fraftdia Dom. Regis Hifp. k was in fuch cafe ruled, that ''°* ^.Jw/L
if a Ship be taken by Piracy, or Letters of Marque and gainil B^rdey
Reprizal, and is not brought infra Rr^efidia of that Prince Res qua in.
or State, by whofe Subje(5l the fame was taken, the fame A^ Pra/tdia
44 3©f Utttmot^aVdUt anb Ecp^t?aL Book I.
dnmfunt, could not bccome lawful Prize, nor were- the Owners by
|«^«|««»» ah fy(.|^ ^ Caption divefted of their Property.
fatJl'Domi^ But if the Caption be by Ships of War, the Pro-
numnon wa/^perty will be immediately in the Captors, and never di-
runty ex G£«- veiled, unlefs afterwards vi^ manu ^ forti it be in Battle
iiumjur. regained.
FUeSAci^. XXII. Upon the fharing the Spoil of the captivated
§. 6, 7, 8. Ships, regard is had to the Ships prefent, not the Captors
only ; (for his Reward muft be the Encouragement of his
Prince, like the Roman Corona's^ of which there were va-
rious, according to the Atchievement of the Conqueror,)
for the Profits of Prizes are to be equally divided amongft
the Ships prefent, and not folely to the Captor ; therefore
if Letters of Reprizal are granted to two Ships, and they
happen both of them at Sea to meet a Prize, and the one
attacks and enters her, by means of which fhe becomes
ahfolutely the Conqueror ; yet the other hath right to an
equal diftribution with the Captor both in Ship and
Goods, although he did nothing in the Conqueft : the
Mich. '3,zEUz,rt2Son is, That although he miffed the opportunity of taking
Somers and Sir qJ^ j^gjr^ y^t the prefence of his Fejfel armed and prepared for
C L ona d ^ -^^^^^^' ^^ ^^^ ^^^^^ ^f ^^^^^g-> became a Terror to the Ship
part 182. ' that was fo conquered. And by the Law prefumed 7?«^
ejus^ that the other Ship would not or could not be fo
taken, which Law hath pafled the current, and approba-
tion of the Common Law^ as reafonable, juft, and equita-
ble, and may be pretended or furmiftrd to entitle the
Party Captor to the making Reftitution of a Moiety to
his Companion then prefent.
XXIII. But if.it fhould happen, that thofe to whom
Letters of Marque are granted, fhould inftead of taking
the Ships and Goods of that Nation againft whom the
Rolls. AlridgS^mt were awarded, wilfully take or fpoil the Goods of
fol. 530. another Nation in amity, this would amount to a down-
Moor T]6. j.jg|^^ l^iraCP* And the Perfons offenders would for fuch
fault create a Forfeiture of their VefTel, and the Owners
muft be for ever concluded by the fame, notwithftanding
fuch Commiffion.
XXIV. But that muft be underftood where fuch a Cap-
tion is done in a Pyratical manner ; for moft certainly,
if Letters of Reprizal are granted to a Man, and then he
devolves the power to another, and the Party to whom
the
44 ^f ILtttmot^aVWt anti ECp^l?aL Book I.
dumfunt, could not bccome lawful Prize, nor wefethe Owners by
TftLTocm ^"^^ ^ Caption divefted of their Property.
paL'!'Doml ^^f ^^ the Caption be by Ships of War, the Pro-
tiumnon muta-^tny wiU be immediately in the Captors, and never di-
runty ex Gf«- veiled, unlefs afterwards i;/, manu Q forti it be in Battle
iiumjure, regained.
Vi^eGJ.c.i^, XXII. Upon the fharing the Spoil of the captivated
§. 6, 7, 8. Ships, regard is had to the Ships prefent, not the Captors
only ; (for his Reward muft be the Encouragement of his
Prince, like the Roman Coronals ^ of which there were va-
rious, according to the Atchievement of the Conqueror,)
for the Profits of Prizes are to be equally divided amongft
the Ships prefent, and not folely to the Captor ; therefore
if Letters of Reprizal are granted to two Ships, and they
happen both of them at Sea to meet a Prize, and the one
attacks and enters her, by means of which fhe becomes
ahfolutely the Conqueror ; yet the other hath right to an •
equal diftribution with the Captor both in Ship and
Goods, although he did nothing in the Conqueft : the
M;V/^. 32j?//«.rcafon is, ^hat although he miffed the opportunity of taking
Somers and Sir qj^ j^gjr^ yet the prefence of his Veffel armed and prepared for
Rtch_ Bui ley s ^^f^ig ^^ ^^^ ^^-^^^ ^f f^kinz-, became a Terror to the Ship
C. Leonard 2. ,/. jajiit ^ix."
part 182. that was Jo conquered. And by the Law prelumed y/w^
ejus^ that the other Ship would not or could not be fo
taken, which Law hath pafTed the current, and approba-
tion of the Com?non Law, as reafonable, juft, and equita-
ble, and may be pretended or furmifcd to entitle the
Party Captor to the making Reftitution of a Moiety to
his Companion then prefent.
XXIII. But if.it fhould happen, that thofe to whom
Letters of Marque are granted, fhould inflead of taking
the Ships and Goods of that Nation againft whom the
Rolls. Ahr'idg,ikmt were awarded, wilfully take or fpoil the Goods of
fol. 530. another Nation in amity, this would amount to a down-
Moor -j^e, j,jg|^^ piracy* And the Perfons offenders would for fuch
fault create a Forfeiture of their Veffel, and the Owners
muft be for ever concluded by the fame, notwithftanding
fuch Commiffwn.
XXIV. But that muft be underftood where fuch a Cap-
tion is done in a Pyratical manner ; for moft certainly,
if Letters of Reprizal are granted to a Man, and then he
devolves the power to another, and the Party to whom
;he
chap.il M%tttmotSldSivmt ana lSep?t?aL as
z the power is configned, takes the Ship and Goods of ano-
ther Nation than againfl whom the fame were awarded,
but upon a violent prefumption that he made a right
Caption, for that he found the Colours of feveral Nati-
ons in the Ship, the Mariners of feveral Countries, the
Ship of the Built of that Country againfl whom the Let-
ters of Reprizal were awarded, though perhaps upon a
Judicial hearing the parties are reftored to their Ship and
Goods, yet the Captors are not to be punifhed Criminali-
ier^ nor the Grantee of the Letters Patents Civiliter : and'?''^'-4^-5-^»
the reafon wherefore it was no injury in the Captors to^" H ^' 4-
take, did arife from the probable caufe which will ex- * ^'
cufe the Captors from punifhment (though perhaps it
,will not from anfwering of the damage ;) but it is clear
the Grantees are ej^cufed from both, unlefs privy to the
Caption 5 and the reafon is this, for the Letters Patents
do not only veil the debt in the party, but do likewife
give Power to the Party to recover^ and is a judicial pro-
,pefs to obtain fatisfadlion, vi^ manu & forii from theSub-
je(5ls of that Prince or State againfl whom the fame are
awarded : So then it will be no more than if the Cre-
ditor deliver procefs to the Officer to take his Deb-
tor, and he takes a vv'rong Perfon without the Know-
ledge of the Creditor, this may fubjedl the Officer
to anfwer Damage to the Party taken, but not the Cre-
ditor.
XXV. Therefore Letters of Marque or Reprizal if-
fue not without good and fufficient Caution firfl given for
the due obfervance thereof according to Law ; the Tranf-
greffion of which creates a Forfeiture of the fame.
And therefore having taken a Prize, and brought the
fame infra Prejidia^ the Captor muft exhibit all the Ship-
papers, and captivated Mariners to be examined, in order
to adjudication, till when Bulk ought not to be broken
without CommiJJion, nor may the Captain of the Captor
fuffer an embezzlement of the lading, or fell, barter or
difpofe of any part without Commijion ; for the King hath 3 EHz.cap. 5.
a proportion in all Prizes.
Such Goods fo brought in are not fubje6t to pay Cu- ^ 2 Car. ir.
iloms. J r J ^^^jgj ^jjg ^^
XXVL By the Law of iVia/Z^f/j, ipfofa^o^ the Domi* ^'
nion of the things taken by thofe to whom Letters of
Marque
46 flDf ttttm of aparrttic anh mtpri^ai Book l
Marque are granted, become the Captors, till the Debt
and Cofts, that is, the original Damag? and fubfequent
charges are fatisfied ; which being done, the refidue ought
to be reftored : So the Venetians ufed their equity, having
Greg, lib, 9. taken the Ships of Genoa ^ did not fpoil any of the lading,
but preferved the fame very carefully, till the Debt was
paid ; which done, reftitution was made of the things en-
tirely, without diminution.
XXVII. When for the fault perhaps of a few, a debt
becomes National^ by reafon of which the Goods of the
innocent become liable (if taken for fatisfadlion) whether
by the Law of England^ the party ought to have Contri-.
bution, is a queftion mod certain by the Common Law ;
///«. N. B. where more are bound to one thing, and yet one is put
fol. 162. O/^. to the whole Burden, the Party may have procefs called
N. Bre. ^^Z' Contrihiitione facienda for his Relief: but when a debt be-
176. 'comes Univerfal or National, it feems otherwife : For if
one lends my Country Money .^ I will not call myfelf debtor^
'* Seneca Benef. yet I will pay my fhare* : So it may feem equitable by the
€ap. 19. Laws of Charity, though not compellable by the Laws of
the Land.
XXVIII. Yet when depredations have happened to Fo-
reign Merchants, and complaint hath been made, the
Kings of England have often illued forth CommiiTions to
enquire of the fame : and fo it was done upon the Peti-
tion of fome Merchants of Genoa^ who complained againfl:
Tat. 26 E, 3. the Inhabitants of the Ille of Guernfey for a depredation,
pars. I M. 16. in taking away and detaining their Merchandize and Goods,
^''•^°' to the value of many thoufands of Pounds, out of a Ship
wrecked by temped near that Ille, by which the Commif-
fioners were empower'd to puniJJj the offenders^ and to make
reftitution and fatisf action for the damages.
The like complaint was made by the Merchants of the
Duke of Britain^ of certain depredations committed by
Tat dtAn.t,^^ Subje6ls of the King of England^ who ifTued forth
>/. 5. pan I. the like Commiffion, and to give them reparation and
M. 9. Dorfo, damages for the fame •, fo that if the Subjeds of the
ferfonis ^arrell ^^"^ ^^ England have had their Goods taken by way of
^5* (apiend. Reprize for the fatisfa61:ion of fuch debt or damage, they
may have the Benefit of the like Commifiions to lick them-
felves whole out of the Eilates of the Offenders. .
CHAP.
[47]
CHAP. III.
Of PrivateerSt ^whether alloixi-
able by the Laivs of Nature.
Of permiffton of fuch by the
Laivs of Nations.
[ . The Occajion of their frji In-
(li tut ion.
' ." Whether it he lamufulto under-
take fuch an Employment,
Of CommiJ/ions general to enda-
mage an Enemy.
. Of CommiJJions fpecial and to
Privateers, and the Immunities
they claim by the fame.
I. They are not to ^violate the
l^anv cf Nations. A great Cafe
m that Head.
II. Of the Care that is obliging
on the iffuing forth fuch Com-
mijjions, in referente to their Re-
lulatiuHy and efpecially in the lajl
^Treaty Marine, hetnveen England
atid Holland.
IX. Of Goods fuhjeil to Prize y ho<vi
confidered in reference to adjudica-
tion general.
X. Of the Goods confidered in refe^
rence to adjudication, on Occaflons
fpecial.
XI. Of the Lading made Prize,
^whether it draivs in a Forfeiture
of the Veffely and njohere other<voife.
XIX. Whether Ships refufing to yield
up to fuch, life is engaged.
Xlir. Privateers ijuhere fuhje£i ta
Pu'fiijhmenty and their Anions
vjhere Occajton a Forfeiture of
their Veffel.
XIV. Of Things notfuhje^ tofpoil.
XV. Conjiderations general on Pri"
<vateers.
NAturally every one may vindicate his own Right,
therefore were our Hands given us ; but to pro-
another in what we can, is not only lawful, but com-
=ndable, fince nothing is more ferviceable to Man than
an. Now there are divers obligations between Men
lich engage them to mutual Aid, for Kinfmen affem-
i and bring help, and Neighbours are called upon, and
low Citizens ; for it behoves every one, either to take
rms for himfelf, if he hath received Injury, or for his
ndred, or for his Benefadtors, or to help his Fellows,
they be wronged. And Solon taught, ^hat Common-
alths would he happy wherein every one would think another^ s
uries to he his own. But when War is denounced, it
itters not what obligations are wanting, it is enough the
ition is injured in general-, for in that every individual is
onged, and all participate in the Indignities and publick
images of his Country ; to revenge or prevent which, is
e Duty of every Member of the fame,
II. Sines
Leg.fermus.D.
deServ. export.
DD.adLeg.fi
quis in fervi in-
tern D. defur.
Leg. prohib. c.
de "jureFifci,
BartholJnLeg.
ut vim. D de
Juji. & Jure
«. 7. b* 8.
46 fiDf %tttm of ^avtim anh Mtpri^ai Boojc
Marque are granted, become the Captors, till the D(
and Cofts, that is, the original Darhage and fubfequc
charges are fatisfied ; which being done, the refidueouc
to be reflored : So the Venetians ufed their equity, havi |
Greg. lib. 9. taken the Ships of Genoa^ did not fpoii any of the ladir
but preferved the fame very carefully, till the Debt v
paid ; which done, reftitution was made of the things e
tirely, without diminution.
XXVII. When for the fault perhaps of a few, a de
becomes National^ by reafon of which the Goods of t
innocent become liable (if taken for fatisfadlion) wheth
by the Law of England., the party ought to have Conti'
bution, is a queflion moft certain by the Common Laiz
Tit%, N. 5. where more are bound to one thing, and yet one is p
fo/. 162. O// to the whole Burden, the Party may have procefs call<
JV. B^. ^^Z- Contrikitione facienda for his Relief: but when a debt b
176. 'comes Univerfal or National, it feems otherwife : For
one lends my Country Money., I will not call myfelf debto
"^ Seneca Benef. yet I will fay my Jhare * : So it may feem equitable by tl
€/fp. 19. Laws of Charity, though not compellable by the Laws •
the Land.
XXVIII. Yet when depredations have happened to F(
reign Merchants, and complaint hath been made, tl
Kings of England have often illued forth Commiflions t
enquire of the fame : and fo it was done upon the Pet
tion of fome Merchants of Genoa., who complained again
Tat. 26 E. 5. the Inhabitants of the lile of Guernfey for a depredatior
pan. I M. 16. in taking away and detaining their Merchandize and Good:
^'^''* to the value of many thoufands of Pounds, out of a Shi
wrecked by temped near that Ille, by which the Commii
fioners were empowered to puniJJj the offenders^ and to mak
reftitution and fatisfatlion for the damages.
The like complaint was made by the Merchants of th
Duke of Britain^ of certain depredations committed b
Pat dej^n.e.^^^ Subjcds of the King of England., who ifTued fort:
//. 5. pats I. the like Commiflion, and to give them reparation ani
M. 9. Dorfo, damages for the fame •, fo that if the Subjeds of th
ferfonUarreft ^^"B ^^ England have had their Goods taken by way c
•^s* ((^piend. Reprize for the fatisfadion of fuch debt or damage, the;
may have the Benefit of the like Commiflions to lick them
fclves whole out of the Eflates of the Offenders.
C H A I
[47]
CHAP. III.
I. Of Privateers, ^whether allonv-
able hy the Lawns of Nature.
II. Of fermiffion of fuch hy the
Laivs of Nations.
III. Jhe Occajion of their frji In-
fiitution.
IV.' Whether it he lanvful to under-
take fuch an Employment.
V. Of Commijfions general to enda-
mage an Enemy.
VI. Of Commiffions fpecial and to
Privateers, and the Immunities
they claim by the fame.
VII. ^hey are not to violate the
Lanjo of Nations. A great Cafe
on that Head.
VIII. Of the Care that is obliging
on the iffuing forth fuch Com-
tnijjionsy in reference to their Re-
gu/atian, and efpecially in the lajl
Treaty Marine, hetixjeen England
afid Holland.
IX. Of Goods fuhje Si to Prize, honx}
conjidered in reference to adjudica-
tion general.
X. Of the Goods conftdered in refe^
rence to adjudication, on Occafions
fpecial.
XI. Of the Lading made Prize,
'whether it dravos in a Forfeiture
of the Feffely and nvhere othervuife.
XII. Whether Ships refuftng to yield
up to fuch, life is engaged.
XIII. Privateers vohere fubjeSi ta
Punijhment, and their Adions
vihere Occajton a Forfeiture of
their Veffel.
XIV. Of things not fuhjeB to fpoil.
XV. Conjiderations general Ofi Pri'
^vateers.
I.
NAturally every one may vindicate his own Right,
therefore were our Hands given us ; but to pro-
fit another in what we can, is not only lawful, but com-
mendable, fmce nothing is more ferviceable to Man than
Man. Now there are divers obligations between Men
which engage them to mutual Aid, for Kinfmen afifem-
ble and bring help, and Neighbours are called upon, and
fellow Citizens *, for it behoves every one, either to take
Arms for himfelf, if he hath received Injury, or for his
Kindred, or for his Benefadors, or to help his Fellows,
if they be wronged. And Solon taught, nat Common-
wealths would he happy wherein every one would think another'* s
injuries to he his own. But when War is denounced, it
matters not what obligations are wanting, it is enough the
Nation is injured in general ; for in that every individual is
"Wronged, and all participate in the Indignities and publick
Damages of his Country ; to revenge or prevent which, is
the Duty of every Member of the fame.
II. Since
Leg. fer'vus .T) ,
deServ. export.
DD.adLeg.fi
quis infervitu-
tern D. defur.
Leg* prohib. c,
de fure Fifci,
BartholJnLeg.
ut vim. D de
Jtiji. & Jure
n, 7. ^ 8.
4? fiOf Plitatttt^ 0? CaperjS* Book t.
II. Since therefore it is not againft the Law of Nature,
to fpoil him whom it /> lawful to kill^ no wonder that the
Laws of Nations permitted the Goods and Ships of Ene-
CiceroOjffic.'^.mxtsX.Q be fpoiled, when it fuffered their Perfons to be
flain.
III. The approbation of which in the Wars of later
The Son of -^g^^' ^"^^^^ given occafion to Princes to iflue forth Com-
Cato Cenfori- miflions to endamage the Enem.y in their Commerce, and
nus having to prevent fuch Supplies as might flrengthen or lengthen
fervedasapri-Qyi- ^^r, to perfons to whoni the prize or caption be-
pay under^ come abfolutely the Captors, and that to prevent the
Pempilius, the fpare of Ships of Force to be abfent from their refpedlivc
Legion being Sqiudrons or Fleets.
disbanded, the gy j-j^^fg ^f Holland they were terrlied Capers^ by the
wa""fefolved ^P^^^^^^ t^^y had their denomination from their refpe-
toremainwith<Sive parts, as Oflenders^ Dunkirkers^ and the like, in Eng-
the Army, land call'd Privateers ; how far the Anions of thofe, as
tho' biit a Vo- jj^ relation, to the attacking and killing of the Enemy, or
wrotrto PoL^ ^P^^^^"§ ^^ ^^^^^ Ships and Goods are lawful, not being
plius the Ge- commanded nor hired thereto, may be a queftion.
neral, that he
fhould give him an Oath the fecond time, giving this Reafon, ^ia priore atni/foyjun
cum hojiibui fugnare non -poterat : Ckero fets down the very Words of Cato to his SoD,
whereby he admonifheth him not to enter into Battle j Avy»^ enimjus eje qui miles m
fit pugnare cum hojie. Cic. Offic. i -
IV. By the LaWs of Nations (as hath been faid) it is
lawful for every Subjedl of that Nation in War to feize
upon the Enemy's Goods and Ships, as alfo to kill themj
for they are, after War denouncM by Law, look'd upon
as of no account ; and if refpe6l be had to natural and in-
ternal Right, it feems granted to every one in a jufl War
to do thofe Things, which he is confident within the juit
meafure of warring, to be advantageous to the innocent
party : but though there may be fuch authority given^ yet
what title can they claim or appropriate to themfelves of
the Ships or Goods of Enemies, (for furely there is no-
thing owing to fuch, nor are they lawfully called to the
fame) unlefs they can fhrowd themfelves undef the PrOtd-
dion of this, that what they do^ is only to exa6l pdnifh-
ment from the Enemy by the common right of men.
V. Commiffions to kill or fpoil the Enemy ^te in tvVO
refpeds, either general or fpecial : General as ■ in a tu-
mult j
Chap. III. M PlihUtUVS 0? €aptrS. 49
rnult ; among the Romans the Confitl faicl, IVhofoever would
have the Commonwealth fafe^ let him follow 7ne -, and to all
particular fubjecls is fometimes granted a Right of killing
in felf-defence, when it is publickly expedient, as on a
fudden occafion, and the like.
VI. Special Commiffions are fuch as at-e granted to
thofe that take Pay, and are under Orders *, the not obey- i^<?^* Deferto-
ing of which may be punilhed with Dc^ath, though the
rem. D. de r&
a6l fucceeds well.
Others to repair a particular damage by way h^ He-C.^ando^
prize^ the original damage being turned into a National ^-^^^J'^^^"^"
debt, but that fatisfied, the other determines : or elfe to j_ ^ 2*.
thofe who receive no pay, but go to Wat* at their own
charge ; and that which is more, adminifter at their own
cells a part of a War, by providing Ships of Force, and
all other military provifions to endamage the Enemy or
their Confederates, the which are termied Privateers^ &c.
as above, to v/hom inftead of pay is granted leave to keep
what they can take from the Enemy ; and though fuch
Licence is granted them, yet may they not convert of
their own Heads to their private ufe thofe Prizes, before
the fame have been by Law adjudged lawful to the Cap-
tors, and the Admiral had his Ihare.
VII. Nor may fuch Privateers attempt ^ny thing againfl:
the Laws of Nations, as to aflault or endamage an Enemy
in the Port or Haven, under the protedion of any Prince
or Republick, be he Friend, Ally, or Neuter, for the
peace of fuch places mull be kept inviolably.
Sir Kenelm Dighy having obtained a Commifllon againd
the French^ being in the Straights^ \Vas every where
honoured as a Cavalier whom the Khig of Great- Britain
favoured -, in his Voyage he took fome Prizes, and com-
ing to Algier redeemed feveral Captives, W'hom he took
aboard, and placed in the feveral Vetfels he had made
prize of : the which he fo effecled, that in a (hort time
he became Illufiriffano of fix Ships of War *, coming to
Cape Congare^ ten leagues from Scanderoon^ and having
fent a Boat to defcry the road, word being brought that
there v/ere in the road two Venetian GalealTes, with two
other Galleons, tv/o Engliflj Ships, and feveral French
Ships, Sir Kenelm being fatisfied of the Prize, refolved
to attack them the next morning, although the Admiral
D of
S(3 jSDf P^ttiatCCrgi 02 CapetjS* Book I,
of the Venetians had declared himfclf Protedtor of the
Frejicb^ and that he would deflroy all the Englifi Ships
of War that he (hould meet, either in that Repuilkk's or
Grand Signior's Seas. Sir Kenelm notwithftanding refol-
ved to engage them, and accordingly bore up to them, and^^
the Venetian General weigh'd Anchor to meet him •, Sicr
This matter Kenelm bdovc he fired, knt a Settee to inform the Vene-^
was highly tian of his Quality, and of his CommifTion, being only to
•dtbateaat ^^^ endeavour to make prize cf the French^ and giving him all,
Board on the ^^^^ affurance pofTible of his fricndfhip and refped to the
complaint of Rcpublick *, but before tht Settee was anfwered, the en^j
lan^y then gagement was begun by the Engltjh, French^ and Venetian.^
Amb^iiTador -pfj^ Adion of Sir Kenelm Bigby was queflioned by the,
pii'bli At lt«- "^^^^ •, for that Hollility had been committed by th^Eng-
don. Anno lift) in the Grand Seignior's Road, and thereupon the B^'a
1629. Fide of Aleppo and Cady of Scanderoon made an Avania or Em-
Biji. Republic. i^y.^Qg Q^ i-j^e Englijh Merchants, till reparation was made,
ene .Jo .170. ^^^ ^^^^ breaking the Peace of the Port.
VIII. In the granting of fuch private CommifTions there
is always great care to be had and taken by caution, to
preferve the Leagues of our Allies, Neuters and Friends,'
according to their various and feveral Treaties ; and there- •
fore at this day by the late Treaty between His Majefty
and the States of Holland at London^ before any Privateer
or Caper can receive Commiflion, the Commander is ob-
liged to enter before a competent Judge, good and fuffi-
cient fecurity by able and refponfible Men, who have no
part or intereft in fuch Ship, in 1500 /. Sterlings or 15,500
Gilders ; and when they have above an hundred and fifty
treaty Mar ine.yitn^ then In 3000/. or 33000 GilderSy that they will
ai land. De- g^yg f^]] fafisfaSion for any damage or injuries, which
iTthe'com^ they fhall commit in their courfes at Sea, contrary to that
iniffion muft Treaty, or any other Treaty made between His Majefty
always be and that State, and upon pain of Revocation and Annullity
mentioned of their CommifTions ^ and for anfwering of fuch damage
have eleven ^f injuries, as they fhall do, the Ship is made liable.
fuch fecurity.
There is a Frovifion to the like EiFefl between us and the French on the lafl Peace.
IX. If a Suit be commenced between the Captor of a
Prize and the Claimer, and there is a Sentence or a Decree
given for the party reclaiming •, fuch Sentence or Decree
(upon
c H A p. lit. m Wiumts 01 iapm^ i i
(upon fecurity given) fliall be put in execution, notwith- ^ri. 13.
{landing the Appeal made by him that took the Prize,
which Ihall not be oblerved in cafe the Sentence fhall be Thefe Articles
given againft the Claimers j if torture, cruelty, or bar- for their ex^
barous ufe happens after a Caption, to be done to the ^^^^J^ncy are fit
Perfons taken in the Prize, the fame fhall ipfo fa^o (^i^'l'l^.o^il^th^
IIJ charge fuch a Prize, akhough fhe was Jawfiil, and the Nations of '
Captains Ihall lofe their CommifTions^ and both they and Euupe.
the Offenders be fubjedled to punifhment. ^^^' H-
X. Such forts of Inftruments having made a caption o^inhopumeffk
Ships bound for an Enemy from Nations Neuter, or mpartibus, qui
amity with both the warring States ; the lading, in order '^'^^^^'^^ ^^7
to be made Prize is reduced to thefe three feveral heads, ^^^^^nifiri/
Firfi:, Thofe Goods that are fit to be ufed in War, Coiifulat, Ma^
under which are included Powder, Shot, Guns, Pikes, ris editus efi
Swords, and all other inftruments and provifions of Ar- lingua Italica,
mature fit to be ufed in the Field or at Sea. %m'Z7itllf
The fecond, are thofe things that may be ufed in time-^^^^^^ ^mpera/o'-
of War and out of War, as Money, Corn, Victuals, rum Gr^d^,
Ships, and the like. i^c.cujusUbti
And the laft, are thofe Goods that are only fit for^^^- ^7^»
luxury and pleafure.
XL The firft are accounted Prize without controverfy »
He is to be accounted an Enemy that fupplies an Enemy
with things necejjary for the JVar,
The fecond is to be governed according to the (late and ^^^^^^^^^«^-
condition of the war ; for if a Prince cannot well defend fQ^^th Article
himfelf, or endamage the Enemy, without intercepting of the Treat/
of fuch things, neceility will then give a right to the con-atZ,o«^ 1674*
demnation. And fo Queen Elizabeth did the ^^^>^^'^"'^ th°[^j^a''°be
Fleet taken, laden with Corn for Lisbon^ upon confidera- ^[^^ ^^^ of
tion of the (late of the War, the fame became prize. War as in
War (except
Ships) may not upon any account be called prohibited^ nor fubjefl to a condemnation^^
except carried to places befieged. Art. 4. vSee John Meurjtus h\s Danip Hiftory con-
cerning the prohibiting of Goods by thofe Northern States. Vide pojha, the Grand
Prize condemned by c£_Elizaheth in tit. Guftoms, and 'uide tit. Ships of War, §. 24.
The laft become frecj and (as we have before mention-
fed), according to that of Seneca ; / will not help him to
Money to pay his Guards ; but if he fhall defire Marbles and
Robes^ fuch things hurt not others^ only they rnnifler to his
^uyitcry : Soldiers and Arms t zvilt not fupply him with ♦, //
D 5 he
52 £Df PlMtttt^ 01 €aptVS* Book I.
he Poall feek for Players and recreations to [often hisfiercenefs^
I will gladly offer to him : Ships of War I would not fend'
him^ hut fiich as are for pie af are and ojlentation of Princes
fportlng in the Sea, I zvill not deny.
And Perfons • XII. If a Privateer take a Ship laden wholly with
fo attempting counterband Goods, both Ships and Goods may be fub-
to relieve an . ^ , , . ' . -t •'
Enemy may jected, and made prize.
in fome cafes
be punifhed; bat if the fame be done by neceffity of obedience, though the parties are
much to be blamed, they yet are not to be punifhed ; and fo it was with tiiofe which
relieved Sir John Oldcajile with provifions, who being taken, were difcharged.
But if part be prohibited Goods, and the other part is
not prohibited, but fuch as according to the neceffity of
the Warfhall be fo deemed, the fame may draw a confe-
By the feventhquential condemnation of Ships, as well as lading.
Article in the If part of the lading is prohibited, and the other part
"Treaty ^tLon- j^ nierely luxurious and for pleafure, only the Goods pro-
Skipper will hibited become prize, and the Ships and the remainder
deliver out the become free, and not fubjeft to infection.
prohibited
Goods, the Ship may proceed with the reft in their Voyage or Courfe, ss they pleafe,
and the Ship fhall not be brought into Port.
XIII. If fuch Ships fliall be attacked in order to an
Nee reus ejl examination, and fliall refufe, they may be alfaulted, as
morth aliefice, a houfe fuppos'd to have Thieves or Pirates in it, which
inqmt Augu- j-efufes to yield up their perfons, may be broken up by
t^fjii^mt^ ^^^ Officer, and the perfons refifters may be flain.
rorum amhi-
turn circumduxit : Ji aliquls ex ipforum ufu per cnjfus inter eat. PubL Epiji. 154.
XIV. But if any of thefe Privateers wilfully commit
, any fpoil, depredations, or any other injuries, either on
the Ships of our Friends or Neuters, or on the Ships or
Z,?7. 5 . fl^^ iV«- Goods of our own Subjects, they will, notwithflanding
tmoul.C.lib.'^. ^Y^Qy 2LXt not in pay, be fubjedled in fome cafes to Death
hiB 'r '^ ^^^ other puniiliments, according to the demerits of
Rolls Abr'idg. their crimes, and perhaps may fubjed their Veflel to For-
/. 530. feiture.
And though by the Law of Nature the Goods of Ene-
mies are to be fpoiled as well as their Perfons flain, yet
fome Goods and things feem exempted, and ought not
to
I
(Chap. III. M ^^iMtttV^ 0 J €aptm i3
to be fpoiJed, and therefore k is not Jawful to land on
rhc Territories of our Enemies, to fpoil places dedi-
cated to God : though Pomponitis obferves, when places Pompon. Leg.
are taken by the Enemy, all things ceafe to be Sacred j^^'^^^^ ^- ^^
1 the reafon given is becaufe the things which are call'd ^ ^^^^■^^^'
Sacred, yet are they not indeed exempted from humane
ufes, but are publick. The Townfinen^ faith 'Tacitus^ open- Tacit. Annal
ing their gates ^ fubmitted themfehes and all they had to the 13.
Romans, themfehes were fpared., the Town was fired. Pom-
pey ent7'ed the 'ifemple by the right of Vi5iory^ not as a flip-
pliant^ but 'as a Conqueror : and though that privilege may
feein right by the Law of War to a Sovereign, or a Ge-
neral, that intends a Conqueft, yet that power may not
feem devolved to him, whole Commiffion is cautionaily to Y^^^^ ^"^ ^^^'
endamage the Enemy only, as in reference to his ^^^- j^Q^Zancon-
merce and provifions of enabling them to withftand the 13ft in taking .
War,: Certainly, that Conqueft is poor, whofe Trophies and over-
and Triumphs are made up with Roofs, Pillars, Pofts, throwing Ci-
Pulpirs, and Pews, and the fpoil of Agriculture. I'^^^'ce JJfJOV^^"^^^
it is, that at this day the king of France in Germany and done without
the Netherlands Ticcepts of Contributions, by which the injury of the
Cities and Churches are not only fpared, but even the^^^*^^'^^.^.
Countrymen plough and fow as quietly as if there were ^o^^^^^r^^^^^^^^^
Armies in their Territories at all. ^ of the Gods
partake in
the fame ruin, the Citizens and Priefts equally flaughtered; nor is the rapine of facred
riches and prophane unlike : fo many are the Sacrileges of the Romans as their Tro-
phies, fo many are their Triumphs over Gods and Nations ; and then goes further,
Tot manubi^ qiiot manent adhuc Jimulachra capti'vorum deoriim. Mox ilf benCy ^uod Jl
quid ad-verji Urbibus accidit, cadem clades Templorum qute t3' mosnhim fuerant .
Even upon the fame Reafon, that the Inflruments of Hu&bandmen are not to b-s
taken for a pledge by the Civil or Common Law. Leg. exeunt. C. ^uce res pigti. CqkQ
00 l<iuleton 47.
XV. Moil: certain, thofe forts of Capers or Privateers,
being Inftruments found out but of later Ages, and 'tis
well known by v/hom, it were well they were reftrained
by confent of all Princes ; fince all good Men account
them but one Remove from Pirates, who without any
refpecl to the caufe, or having any injury done them, or
fo much as hired for the Service, fpoil Men and Goods,
•making eveii a Trade and Calling of it, amidft the Cala-
mities of a War, and driving'a commiCrce and m^art with
the fpoil, and that with as much peace and content, aa
'^4 f)f Pjtiftateet j5 o j €aptt§. b o o k i.
if they had never heard of Tears, Blood, Wounds or
Death, or any fuch things : fuch, to expofe their lives
againft Ships of the like kind, were both honourable and'
jud, or thofe that fhould aid the Enemy with Goods pro-
hibited as afore, llich Prizes were poflTeflTions moft noble ;
but the Goods, Ships and Lives of the innocent peace-
able Traders to be expofed to rapine and fpoil, renders
them worfe than the Roman Lidlors, by how much 'tis
to kill without caufe, Headfrilen executing the guilty,
they the guiltlefs. - "
It was a high necefTity that enforced the Englijh to com'.
mifTionate fuch, the number of her then Enemies cover*'
ing the Sea, like the Egyptian Locufts ; it were well they
were rejc6led by confent, or if allowed of, not fubjedl tq
Quarter, when taken by Ships of War : A Trade that
I Cor, i^. 7. St Paul never heard of, v/hen he faid. Who goeth to Wat
at his own charge t
CHAP.
2»
''I J. Pirates n)ohat.
t|| II. Of the duty incumbent on Princes
and States fs in reference to fuch,
and ^whether liable for the da-
mages they eommit.
III. Pirates ijohere they hold a So-
ciety^ howo the fame is ejieemed in
Laiv, and of Equality held by them.
IV. Whether capable of the Solem-
nities of Wary and Right of Le-
gation.
V. Whether capable of fuccour by
the Lanus of Nations.
VI. Ships Inhere liable for redemp-
tion of the Majier remaining pledge
for Ship and Ladingy and lohere
not.
VII. Oath given to pay a renjoard
for redemption of a Ship from Pi-
rates, ^whether the fame ought to
be performed.
VIII. Foreigners fpoiled by Engli{h
Pirates^ may purfue fcr Jujiice
tvuithin the Statute of 2?, H . 8 .
IX. So where the SuhjeBs of any
foreign "Nation committivg the
fame^ may he punifhed by the fame
Statute.
X. Piracy committed by the SuhjeBs
of a Nation in Enmity n.vith the
Crown o/Erigland among Englifh
Pirates^ cannot be punifhed by the
Statute of 2^ H. 8.
XI. Committed on the Br it if? Seas
punijhabk by the Cronvn of En?"-
land, and none other.
XII- Where committed in the Ocean,
fwhether they may be executed
^without trial, by the Lamo of Na-
ture.
XIII. The like nx}h ere the Judge re-
fufes to try them, or in cafe of
emergency, whether JuJlice may
be executed immediately.
XIV. Pirates attempting to rob,
(otnmit a Murder, whether nil
principals, or only the flayer ^ and
the reji Acer Jori^s.
[ SS ]
CHAP. IV.
XV. If the SubjeSls of one Foreign
Nation rob another, and bring the
Booty into England, whether the
party injured ?nny proceed Crimi-
TidWiGV for punifjmenty and Civi-
\\ttr for reftitution.
XVI. Pirates take Men, and no part
of the Lading, if Piracy.
yiSfW. Where a Mafter may commit
Piracy of thofe things that are
committed to his charge, and
fivhere not.
XVIII. Where Piracy may he, though
there be nothing taken : and nvhere
Goods are taken out of a Ship, and
no body in it.
XIX. The Captain and Crenv of a
Veffel having a Commijjion of Re-
prize commit Piracy,rf hether thofe
that employed them ought to an-
fwer the Damage.
XX. Where Goods taken at Sea
amount not to Piracy.
XXI. Goods taken and retaken by a
Friend, ivhether the Property of
th^ Prize is altered.
XXII. Of P^eftitiition of Goods taken
by Piracy by the Laws ^England.
XXIJI. Of Reftitution refufed by
the Laws rf England.
Juftijications in this by a War-
rant from the Admiralty. The
Admiralty muft allonjo the Statute
of Limitation if pleaded.
XXIV. Of Piracy as in reference ia
matters Criminal, and honu pu-
nijhable at this Day by the Lawt
cf England.
XXV. The Statute ofz^U. 8. hio
it operates in cafes of Piracy.
XXVI. Of Pardons in cafes of Pi-
racy, Forfeitures, Cqrruption of
Blood, and Clergy,
XXV f I. Whether a Depredation
committed in a Port nvithin thi^
Realm remains Robbery, at th&
Cofnmon Law, or Piracy by thi^
Law Majine*
f
56 SDf ^iV&Cf. Book L
XXVIII. mstber Clergy is alloiu* \
able for a Depredation in a Party
and if Pardons extend thereto.
XXIX. A Pirate arraigned and
Jlandir7g mute ft^all ha<-je fudj-
Tjient of Pain, Fort and Dare,
• XXX. Of the Operation of the At-
tainder in cafes of Piracy ^
XXXI. Of Goods taken at Sea and
brought to Land, ivhethir the
Party is punif^able by our La^\
Stat. II. 12W. ^. c. 7. Pii
I ra-
cy ivhere and hoiv triable.
XXXII. Jf the Admiralty claims
either an original, or a concurrent '■
Jurifdiaiony the Courts abo've^
n.vill not intermeddle.
XXX III. SatisfaSiicif of old, hozo
made to Perfans ff oiled at Sea.
XXXIV. Pirfons unjuftly detained
in Cujiody uponSuficion of Piracy,
the Courts abo've, on a Habeas A
Carpus, may^ if the^e hejuji caujt,
either bail or difcbarge them.
I.
If theofien-
A pirate is a Sea-Thief, or Hoftis humani generis^ who
to enrich himfclf, either by furprife or open
force, lets upon Merchants and others trading by Sea, j
ever fpoiling their Lading, if by any poOlbility he can,
get the maftery, fomctimes bereaving thein of their
Lives, and finking their Ships ; the Actors wherein,
"Tully calls Enemies to al], with whom neither Faith nor Oath
is to hekept. Againft Pirates and fuch as live by Robbery
. at Sea, any Prince hath power to make War, tho' they
are not fubjed to his Government. Grot, de jure belli ^
facis, lib, c. cap. 20. § 40. jjf
11. By the Laws of Nature, Princes and States are reP
fponfible for their neglecl if they do not provide Ship*
ders couM be "^^ ^^'''^^' ^^.^ ^^^'^^* remedies for the retraining of thofe
found, they ^^^^ o^. Robbers ; but how far they are bound, either by
ought to be the Givil Law or Common Law of this Kingdom., may be
yielded up to fome queftio.n : for it is agreed they are not the caufe of
thTy wTnv^^^ """J'^^ ^P^^^ ^^^^^ '^ committed by them, nor do they
Eftate, the ' Partake m any part of the plunder ; but if a Prince or
fame ought to State fhould fend ion\\' Ships cf TVar^ or Commiffions for
go towards reprife, and tliofe inaead of taking prizes from the Ene-
cf'thTda''°""^>'' ^^'" ^''^^ ^'^^ ^P^^^ the Subjeds of other Friends,
iiiage. there has been fome doubt, whether they ought not to
. ■ niake fatisfadlion to the Parties injured, in cafe the offen-
ders iliould prove unable. Surely there is no more reafon
for this latter than the firft ; feeing Princes and States
may give all their fubjeds power to fpoil the Enemy, nor
Camion Is is fuch a Permiffion any caufe why damage was done to
ken ""do ^^t^^""* Friends, when even private Mm, without any fuoh
givinrfforth'^P^^"^'^'^"' might fend forth Ships of War -, befides it is
of fuch Com- ^"^po^it)le that Princes or States ibould forefee, v/hether
^iiffionsto * • they,
:hap. IV. sDf imacv^ 57
hey would prove fuch or not ; nor can it be avoided, but prevent the
ve muft irhploy fuch, othervvife no Jrmy or Fleet could be h^^*,jjf P°^*'
Drepared ; neither are Kings to be accufed if their Sol- generally^re-^
jiers or Mariners wrong their Confederates, contrary toftrained by
:heir commands, though they are obliged to punilh and Proclamation
^ield up the Offenders, and to fee that legal Reparation "^^^^^^^^
be made out of the Eflate of the Pirates. If Letters of^^^ comman-
Marque or Reprizal be granted out to a Merchant, andded that none
he furniflies out a Ship with a Captain and Mariners, and prefumeto fet
they inllead of taking the Goods or Ships of that Nation ^^^'^^^^^^^^^^
againft whom their C(7»2;;?i^^;^' is awarded, take the Ships * (;^„y^/^, G^/1
and Goods of a Friend, this is Piracy * -, and if the Ships //^ tom. 3. tit.
arrive in England^ or in any other of his Majefty's Y^o^'h-Conftitutione
minions, the fame fhall be feized, and the Owners for^'f' ^^^i'-v
ever lofe then* Vellel f. ^^^^.^ ^,^, ,^^,
fiit. 3. ///. 2.
conflit. Annl 1543. cap. \\. Vtdezi. Article at the Treaty at J?;W« between £«'^-'
land and Holland, and the 15th Article in the Marine Treaty at London 1674,
f I Rolls Ahr. 530. 776.
From hence it is, that Princes and States are very cau-
tious upon this we call Jure Belli privati., how they engage
themfelves, or thofe who feek reparation for wrongs be-
fore received -, for the Perfon injured governs not th^
adlion, but devolves the power to fome other hired for
that particular ufe, whofe Law is no more than this, ^bere
is moft right where is moft pay or prize. Unhappy ftate of
man, v/hofe fupport and living is maintained* only by ex-
pofing himfelf to Death \ a Calling that nothing can make
honeft, but the higheft necefijty or pious charity. And
therefore thofe that ilfue forth fuch fort of Cornmijfions^
generally take Caution for their returning within a con-
venient Time, and not to wander in that unhappy con-
dition.
III. Though Pirates are called Enemies, yet are theyi^l-. Hops di
not properly fo termed : For he is 'an Enemy ^ fays Cicero^ lerb.fignif.
who hath a Commo/iwealth^ a Courts a Treafury^ Confent
and Concord of Citizens, and fome way, if occafion he^ of
Peace and League ; and therefore a Company of Pirates or
Freebooters are not a Commonwealth, though perhaps they
may keep a kind of equality among themfelves, without
"^hich no Company is able to confill j and though it is fel-
dom
58 ^ flDf Piracy* Book I.
teg. Hoflii de dom they are without fault, yet they hold fociety to
Capnvii, maintain rights and they do right to others, if not in all
Things according to the Law of Nature (which among
many people is in part obliterated) at lead according to
agreements made with many other Nations : or according
to Cuftom : So the Greeks^ at what Time it was account-
ed lawful to take fpoil at Sea, abftained from (laughter and
depopulations, and from dealing Oxen that plowed, as the
SchoUaft upon Thucydides obferves ; and other Nations
living alfo upon the fpoil when they were come homt
from Sea, fent unto the Owners to redeem (if they pleafed
at an equal rate) what they were robbed of at Sea: and
at this day, if a Ship hath the Emperor of Barbarf'l
protedion, the Pirates of that Nation (if they feize) will
reftore, and if there be no protedlion, yet if taken with-
in ftght of their Caftles, the Prize is not abfolute •, but if
refiftance is made, and there be a Caption, fhe then be-
comes the Captor's for ever, as the price of Blood,
Grot, de Jure 1^^- Again, Pirates that have reduced themfelves into
belli ^ pads a Government or State, as thofe of Algier., Sallee, 'Tripo-
iib, 2. c, 18. 11^ ^unis., and the like, fome do conceive ought not toob-
^' ^* tain the Rights or Solemnities of War, as other Tov/ns or
places : for though they acknowledge the Supremacy of
* Confiantino- ^^^ * Porte.^ yet all the power of it cannot impofe on
pie, generally them more than their own Wills voluntarily confent to.
ib called. The famous Carthoge having yielded to the viflorious 6"^/-
pio.^ did in fome refpe6l continue, and began to raife up
her drooping Towers, 'till the knowing Cato gave Coun-
fel for the total extirpation ; out of the Ruins of which
arofe 'Tunis^ the revenging Ghoft of that famous City,
who now, what open Hoftility denied, by Thieving and
Piracy continue -, as (linking Elders fpringfrom thofe places
where noble Oaks have been fell'd ; and in their Art are be-
come fuch Mafters, and to that degree as to diflurb the
mightieft Nations of the Weftern Empire : and though
the fame is fmall in bignefs, yet it is great in mifchief: the
confideration of which put fire in the Bread of the aged
Fuller's Holy Lewis IX. to burn up this ne(t of Wafps,who having equipt
War lib, 4. out a Fleet in his way for Pakjiine., refolv'd to befiege it :
<"«/• 27' whereupon a Council of War being called, the queftion was
Whether the fame fhould be fummoned ? and carried, it
fhould not i for it fjvas not fit tbefoUmn Ceremonies of War
Jhoiili
II
:hap.iv. flDf Piracy* 59
huld be lavijhed away on a company of Thieves and Pirates,
J^otwithftanding this, Tunis and 'Tripoli ^ and their Sifter
dicier do at this day (though nefts of Pirates) obtain the
•ight of Legation, and Sir John Lawfon did conclude ^oaoh c.^w.
Peace between his Majefty by the Name of the moft Se- 1662! But by
•ene and Mighty 5^?l^Ce CljiltleS the Second, by the^^^ Turk in
^\Graceof God King of Great T>litm^ iftattCe, ""^^ 'iXZ-'^^'Xm^l^nd
.'anDj Defender of the Faith^ &c. and the mofi Excellent feakd"in ^he
')igniors ^abamet TSafljato, t!je Dii^an of tfje jaoble prefence of
Ktp of Ctmis i 8)aBo;e ^uftaplja T)zU ^mt 15tU Almighty
ind the refi of the Soldiers in the Kingdom of Tunis : and ^°^* !" °"^
with them of Tripoli by Sir John Narborough * by /^^^noble^Cky^of
]v^»;^ ^/ ^alti nBalljato, 3b?atiim Dcp, aga, DiBartjW;, theian
md Governours of the Noble City and Kingdom of 'CtipOlf ^^7 ^^ ^^^
r;i 'BaCbatp* So that now (though indeed Pirates) yet ^^°" ^^/^^^i
having acquired the Reputation of a Government, they^^^^^^j^^g°
cannot properly be efteemed Pirates but Enemies. * Manh 5/
1675-6, and
(afterwards, May i. 1676. by the Turks) being the 26th day of the Moon Zaj)birf,
and the year of the H?^/V^, 1087.
V. Pirates and Robbers that make not a Society, /. e.
fuch a Society as the Law of Nations accounts lawful, are
not to have any fuccour by the Law of Nations. Tiberius,
when Tacfarinas had fent Legates to him, he was dif-
pleafed that both a Traitor and a Pirate fhould ufe the Tadt. Annal.
manner of an Enemy, as Tacitus hath it; yet fometimes 3* ^^A^'^'f^-
fuch men (Faith being given them) obtain the right of
Legation, as the Fugitives in the Pyrenean Foreft, and „. - ^ , .
the Banditti at Naples ; and Solyman the Magnificent, hav- vinlt.fol.cxx,
ing entertained Barbarofjo the famous Pirate, fent word to
the Venetians^ that they fhould ufe him and efieem him no
more as a Pirate, but one of their own Port.
VI. If a Ship is aflaulted by a Pirate, for redemption^, ad Legem
oF which the Mailer becomes a Slave to the Captors, by Rhod. dejaau,
the Law Marine, the * Ship and Lading are tacitly obliged {■ 2. §./»«'?/«
for his redemption by a general Contribution. But if a Pi- \jnpta. "
rate fhall feign himfelf ftranded, and to decoy the Mer- * The fame
chant-Man for his relief, fhall fire his Guns, or wave his Co- Poipt, and al-
lours, who accordingly varies his Courfe for his Affiftance, %^\^^^^
and the Pirate enters him, for redemption of which he be- Enemy! Lord
comes Raymond 932.
6o fS>{ PitaC^. Book I.
To know comes a Slave to the Pirate, there contribution fhall not
Pr^ce^d" ^'^^ ^^ made, becaufe it was his folly to be fo decoy'd.
in fuch Matter be legal, the Party muft wait till the Promovent has libelled, before he
can move for a Prohibition. 7^/V. 934.
VII. By the Civil Law a Ranfom promifed to a Pirate,-
if not complied with, creates no wrong ; and the reafon
given is, for that the Law of Arms is not communicated
to fuch, neither are they capable of enjoying that privilege
■which lawful enemies may challenge in the Caption of
another : however this hath its meafure ; for a Pirate may
have a lawful pofTefiion, the which he cannot be denied
(if injury or wrong be done him) to claim the benefit of
Law. But the reafon of that fprings from a more noble
Fountain, which is his taking a legal courfe, for by
that he hath fubmited to the Magiftrate, and paid obedi.
ence to the Laws in demanding Juftice ; befides, the fame
is not done fo much in favour of the Pirate as in Hatred
of him who firft commits the wrong. Auguftus the
^0^;/;. /.I. r. I. Emperor proclaimed a reward of ten Sefterces to be,
given him that fhould bring in Coracotas^ the famous «Sf^-
mfi Pirate, who having notice of the fame, voluntarily
comes and prefents himfelf before the Emperor, and de^
rriands the promifed reward ; and the quellion was, whe-
ther death or the Sefterces were to be his reward : The
Emperor gavejudgment, that the fum promifed, fliould be;
paid him, for otherwife in taking away his life he fliould
deceive him of the fum promifed, which would, in effed,
violate the publick Faith given to him, who of himfelf
offered himfelf upon the tryal of Juftice.
A Pirate attacks a Merchant- Man, and enters her, for
redemption of which the Mafter gives his Oath, at a time
and place to pay the Pirate a Sum certain ; by fome it
hath been held, that the Mafter commits not perjury,
if the price promifed for redemption be not brought ac-*
fording to the Oath ; becaufe a Pirate is not a determi^
Le^.lona Me^^^^'* ^^^ ^ common Encmy of all, with whom neither
d! Expo/. Faith nor Oath is to be kept: but that is no reafon for
the affoiiing of the Vow : for though the Perfon be de-
ficient, yet the Juft God is concerned ; nor can that per-
fon that hath promifed a thing, fatisfy his Confcience a^
ter he hath once delivered it to him, to recover it back
again 4
■^i:HAP.iv. M p'rac^ ^ 6i
ain *, for the words in an Oath, as to God, are to be
-.derftood moft fimply, and with efFed ^ and therefore
ic that returned fecretly to the Enemy, and again depart-
;d, made not good his Oath concerning his Return.
VIII. If an Englijh Man commit Piracy, be it upon
:he Subjed of any Prince or RepuHck in amity with the
Crown of England^ he is within the purview of the
Stat, of 28 H. 8. and fo it was held where one Winter- On a Com-
fon^ Smith, and others, had robbed a Ship of one M^- miffion groun-
turine Ganlier, belonging to Bourdeaux, and bound from ^^ ^^ ^^^
thence with French Wines for England^ and that the fame ^^^'^^ J^^^ *
was Felony by the Law Marine, and the parties were con- z%Eli%.m,zi,
vi(5led of the fame.
IX. And fo if the Subjed of any other Nation or
Kingdom, being in Amity with the King of England.,
commit Piracy on the Ships or Goods of the En^iflj^ ^
the fame is Felony, and punifliable by virtue of the Stat,
and fo it was adjudged, where one Carelefs^ Captain of a
French Man of War of about 40 Tuns, and divers others,
fetting upon four Merchant-Men going from the Port of
Briftolto Caermathen, did rob them of about 1000/. ior Rott,Adm.an^
for which he and the reft were arraigned, and found guil- ^° ^^ Ehz.fx,
ty of the Piriicy. ^'^*
But before the Siat. of 25 Ed. 3. if the fubjedls of a fo- Normandy wsls
reign Nation and feme Engii/Jj had joined together, and loft by King
had committed Piracy, it had been Treafon in the Eng-J^^^"'^^^^^^
lijb, and Felony in the Foreigners: And fo it was faid by °[[};;^f5'"^^
Shard., where a Norman being Commander of a Ship, had ^;;^/^;z^^ and
together with fome Englijh, committed Robberies on the they were as
Sea, being taken, they were arraigned and found guilty; the i^ow account-
Norman of Felony, and the Endijh of Treafon, who ac- ^/^. T^'.'^^
cordmgly were drav/n and hang'd. But now at this Cid,j perShard.'vid.
they both receive Judgment as Felons by the Laws Marine. 2 H. ^.cap.6,
X. If the Subjeds in enmity with the Crown of England
be Sailors aboard an Englifi Pirate v/ith other EjigliJJo, and
then a Robbery is committed by them, and afterwards are
taken, it is Felony without controvefy in the Englifi, buc
not in the Strangers \ for they cannot be tried by virtue
of the Commiffion upon the Statute, for it was no Piracy
in them, but the Depredation of an Enemy, for which
they fliall receive a Trial by ^aitlilJ JLtlUS and Judg-
ment accordingly.
XI. Piracy
62 flDf p'MC^ BooKte
SeUen Mare XI. PIracy committed by the Subje6ls of the French
Clauf. ^^^-J* King, or of any other Prince or Republick, in amity wit^
^cf ReJi'nor ^^^ Cfown of England^ upon the Britijh Seas, is punifh-*
Grimbald in able propcrly by the Crown of Etigland only, for the
temp. EJ I . Kings of the fame have tjlud regimen i^ dominium exclu-
Cited m ^ hjl j^,y^ Q^ the Kings of France^ and all other Princes and
of "tht Admi- S^^^^s whatfoever.
ralty. XII. If Piracy be committed on the Ocean ^ and the
Pirates in the Attempt there happen to be overcome, the
JnjiceremanumC2iY>toTS are not obliged to bring them to any port, but
farca iraxe- j^^y expofe them immediately to punifhment, by hanging
^fihi.ljfirm^ne^^'^ up at the Main-yard end before a Departure j for
ufus eji juris \ the old natural liberty remains in places where are no
Tiam n:anus in- Judgments.
^'ZlfmUa ^"^ therefore at this Day, if a Ship (hall be on a Voy-
judictsTuaori-'^^} ^^ ^^^ ^^ft- Indies^ or on a Difcovery of thofe parts
tate, rem «o-of the unknown World, and in her Way be affaulted by
bis dehitam a Pirate, but in the Attempt overcomes the Pirate, by the
Serv!'^n'i i ^'^^^^ Marine, the VefTel is become the Captors ; and
'they may execute fuch Beafts of Prey imm.ediately, with-
out any Solemnity of Condemnation. If we refped ex-
pletory Juflice, it cannot be denied, but for the Con-
fervation of Ship and Goods, a Pirate invading may be
flain, for the inequality between thefe things and life is
made up in favour of the innocent, and by hatred to
the injurious : Whence it follows, if we regard only that
Oratiorie in A-^^o^'^^^ that a Pirate running away with ftolen Goods, if
ripcratem, they cannot otherwife be recovered, may be funk. D^
mofthenes faid, // v:as very hard end unjuft^ and contrary
both to the zvritten Laws and the common Rules among ft Men^
71 ot to he filtered to ufe Force againft him who in a hofiile yuan-
tier hath taken my Goods.
Leg. extat. D. XIII. So likewife, if a Ship fhall be aflaulted by Pi*
quodmetus, rates, and in the Attempt the Pirates fhall be over-
come, if the Captors bring them to the next port, and
the Judge openly rejeds the Trial, or the Captors can-
not wait for the Judge without certain peril and lofs^
Juftice may be done upon them by the Law of Nature,
Honorius & and the fame may be "there executed by the Captors.
Iheodoftus ; id-
circo Judicio' CaiUS
rum njtgor Ju-
rifque ptblici tuttla in medio conjlituta, ne qu'ifiuarn fthi ipjt fsrmittere *caJeat ultionefit*
Leg, nuUi C. de Jud^eif,
^
SAP. IV. €>f ^ivacv* 63
Caius Cafar being but a private Man purfued the Pi-
■'ies, by whom he fbrmerly had been taken and
jjled, and making up to them with fuch a Fleet as
' poffibly in hafle could get ready, attacked, burnt, and
llroyed their Ships, and the Men he brought back to p;^^^ r *
Anchor, where repairing to the Proconful to do Ju- Cafar.
:e, and he negleding, himfelf turned back, and there
ng'd them up.
XIV. If a Pirate at Sea aflault a Ship, but by force is
evented entringher, and in the attempt.the pirate hap-
ns to flay a perfon in the other Ship, they are all Prin-
<als in fuch a Murder, if the Common Law hath Jurif-
5lion of the caufe : but by the Law Marine, if the par-
s are known, they who gave the wound only fhall be
ij Incipals^ and the reft accejjories * •, and where they have* j^^^^ j^/^^_
gnizance of the principal, the Courts at Common Law Hams mdi£ied
11 fend them their accelTory, if he comes before ^^^ ^^^e mur-
,jj^j- cler of one
' ' yo/jn Terrey ;
id Bridget y Blacky and Others as AcceiTorles. Rot. Admlr. 28. £//«. M. 24.
Yehiftonfol. 134, 135.
'' XV. If a Spaniard robs a French Man on the High Sea, p^ ^ • .^
th their princes being then m amity, and they hKcv/ne p^^J^^ia per-
th the King of England^ and the Ship is brought into dua^ mndum
e ports of the King of En^Mnd^ the French Man x^2.^fu^t^quanquam
oceed Crimmaliter againft the Spaniard to punifli him, ^atadomfuum
d Civiliter to have Reftitution of his VefTel : but if the non \iutdrunt
elTel is carried infra Fraftdia * of that prince, by whofe ex Gentium ju-
! bjeft the fame was taken, there can be no proceeding '^^- ^"^^^*?^ ^®
« Iviliter^ and doubted if Criminaliter •, but the French- ^^ci^ c g §^
tan -f muft refort into the Captor's or Pirate's own 16.
ountry, or where he carried the Ships, and there pro-* MarcV^Re-
ed. P°^^^ ''^°-
-j" Leg. Hojies
iff Leg. Latrones D. de Cap. Leg. pojilim a Piraiis ecd. 'lit.
A Dutchman., but naturalized by the Duke of Savoy ^ The Caption
id living at Ff//^ ir^;^<:^, in his Dominions, procures ^^^. |P. ^^^5*
'^Commiffwn from the Stales of Holland., and coming to' ^fg^J^/J,^^
'^ghorn^ there rid widi the Colours and Enfigns of the 1670. upon
)uke 0^ Savoy ; the Ship Diamond being then in port, and w^'ich there
aving received her Lading, was afterwards in her ^^y^^^^^^^l^^
ge home furprifed by that Caper, and brought into Villa ^^ ^^^^j, . ^^^
Franca^
■'1
nothing came Prancn, and there condemned and fold to one Poleman
° ^^' which Ship afterwards coming for England^ the Plaintiff,
Rott. Jdmir, havingNotice, made a feizure ; and uponTrial,' Adjudicati- r
rnAn.fupra- on paffed for the PJaintiffs, the original Proprietors : Fotl
, tho' the Ship of War and the Captors were of ^aviyA'
and carried thither \ yet b^ing taken by virtue of a D«/f/|
Commijfion^ by the Law Marine^ fhe muft be carried infra,
Prafidia of that Prince or State by virtue of whofe Qm-
wijfion fhe was taken. Nor can fuch carrying of the En-
figns or Colours of the Dake of Savoy^ who was then in
amity with the Crown of England^ or the Commander^
though a fubjed of that Prince, make him a Pirate, or
fubjedt them or thofe to whom they have transferr'd their
intereft of the prize, any ways to be queftioned for
the^ fame Criminaliter -, for that the original q^uoad the
♦ 3 BuIJirode taking was lawful, * as one Enemy might take fro^n another;
28- but Civiliter the fame might be, for that the Captor
f Grotius, had not entituled himfclf to a firm poflefTion t- And
/;^. 3. rfl/. 9. therefore in all cafes where a Ship is taken by Letters oj
\'1}.'^J^' Af^^^//^ or Piracy *, if the fame is not carried infra Pr^Jidin
Jac'inB.R.^^ ^^^^ Prince or State by whofe Subjed the fame was
Bronvnlonv taken, the Owners are not diverted of their Property,
7. part. We- but may refeize whcrefoever thev meet with their
pn\C. VefTels. ^
XVI. If a Pirate attacks a Ship, and only takes away
fome of the Men, in order to the felling them for flavcs,
C.2 7«/?. log.this is Piracy by the Law Marine ; but if a Man takes
^i'cJr'^c'^^'^'^ a Villain ox Ward ^ or any other Subject, and fells
but Black- ^h^"^' ^^^ flaves, yet this is no robbery by the Commi
mail, and fuch LrlW.
forts of tak-
ing in Cumberland, Northumberland, and Wejimorland ^2,^ made Felony 43. Lli%. cap. 13,
XVII. If a Bale or Pack of Merchandize be delivered to
a Mailer to carry over Sea to fuch a Port, and he goes away
with the whole Pack or Bale to another Port, and there
^ff.Vauta |-£j]5 ^^^ difpofes of the fame, * the lame is no Felony.
3 Stalj. ^^^ ^1 ^^^ ^P^'^s the Bale or Pack, and take any thing out,
Glannjil. lib. animo furandi^ the fame may araounc to fuch a Larceny,
10. cap. 13, as he may be indidled in the Admiralty^ though it amounts
'^afit cJup. "^^ ^^ ^ Piracy. Yet if fuch a Mailer of Ship Ihall carry
Stab, lib./ea.'^^'^^ Lading to the Port appointed, and after retakes the
7 fe^. recepit, wbols
Chap. IV. M pitacv^ 65
whole Pack or Bale back again, this may amount to o. Co. 'i. hjl.
Piracy ; for he being in the nature of a Common Carrier, ^°7> ^o^-
the delivery had taken its efFed, and the Privity of the
Bailment is determined.
XVIII. If a Pirate fiiall attack a Ship, and the Mafter 44^. 3. 14.^
for the Redemption fhall give his Oath to pay a Sum i^,f^'
certain •, though there be no taking, yet is the fame Pi- ]^^^^ Jf}^^.
racy by the Lazv Marine -, but by the Common Law there /. 2. §./
mud be an adual taking, though it be but- to the value of ^a^vis a Pira-
a Penny, as to a Robbery on ihz Highway. usredcmpta
If a Ship fhall ride at Anchor, and the Mariners Hiall^^^^ q. ii?.
be part in their Ship- boat, and the reft on the fhore, and
none fhall be in the Ship ; yet if a Pirate ihall attack her
and rob her, the fame is Piracy.
XIX. A Merchant procures Letters of Marque or Reprife-, Trin. yjac h
and then delivers the Commifiions to perfons to endeavour B- ^- ^^^'^-^
a fatisf\(flion -, if fuch Perfons commit Piracy, the VelTel ^^''^^t?-53o-
is forfeited without controverfy: But the Merchant is CGnflit .Gallles
noways liable to make fatisfaclion •, for though the Supe- ^^'^.[ ^^^' ?*
rior fhall anfwer for the Aftions of his Minifters or Ser- ^°'it,'^.TL
vants, yet that is introduced by the Civil Law *, but this
queftion muft be decided by the Law of Nations^ by virtue yide Moor'^
t)f which fuch Commiffions are awarded or granted, the Reports 776.
which does exempt any Man to anfwer for the Damages
of his Servants, unlefs he foreknew that they would com-
mit fuch a Piracy or Spoliation, or any way have abetted
or confented to the fame, which right may be forfeited,
and the Civil Law let in to acquire fatisfa6lion. And yet
in the Cafe of Sir Edmond 'Turner^ and Mr George Carew, Viae the very
who having Letters of Reprizal againft the Dutch, Mr L?-ters of Rc-
Carew by Indorfement on the back- fide of the Letters Pa- "^^^ n/^^^
tents did nominate and appoint one Tyrence Byrne to exe-
cute and perform all fach adls and things as by force of the
Letters Patents he might lawfully do : I'yrence Byrne pro-
vides Ship and Crew, and being at Sea takes a certain Ship
belonging to Bruges called the Godelife, and there was
fome probable caule of fufpicion^ yet not enough to war-
rant a Condemnation: Whereupon the Owners, having j^^^y^ -
had fentence of Reftitution, libeli'd in t\\Q Admiralty againft Car. z ^tSer-
^ir Edmond Turner, Mr Carew and Byrne, for Damages ; jeants-lnn.
upon which a Sentence was given againft the Defen-
E dants,
66 ^t piV&tl^* Book L
dants, who Appealing, the Delegates confirmed the firit
Sentence. \
Leg. z.feB, XX. But if a Ship fliall be at Sea and in necefTity, if (lie
f«/-^;«<'«^m ; attacks another Ship, and takes out fome Viduals, Ca-
D adl. Rbod. y^y^ j^ Anchors or Sails, (efpeciallv if that ot'her
Leg. quo nail- ^i • r i x i • • t% • i i i
fragJ\.^uod oh I p may 1 pare them) this is not Piracy \ but then thQ,
ait.D.dc'vian, Party mufb pay ready Money for fuch things, or give g^
Leg. quemad- ^Qte or Bill for the payment of the value ; if on this fide^
^''''n' ^frl the ^^raits of Morocco, within four Months, if beyond
Item D. ad Leg. . iit/ri J -^
Jquiliam. withm twclvc Months.
27 H. 8. cap. XXI. By the Law Marine, if Goods are taken by a Pi- ^
4- ^.4- rate, and afterwards the Pirate attacks another Ship, but
ponius^d'e acqu. ""^ ^^ Attempt is conquered, thePWz^ becomes abiolute-
ter dam. ly the Captor's, faving the account to be rendred to the.^
Admiral And it is accounted in Law a jufb Caption
of whatfoever may be got or taken from fuch Beafis of\
prey, be the fame in their own or in their Succefibrs Pof-
TerLeg.Muli' fefTion. But then an account ought to be rendred to the^
er, eod. cap. Jdmird, who may (if they happen to be the Goods of,
^^* the Fellow- fubjed of the Captors, or of Nations ia-
amity with his own Sovereign) make reftitution to the
Owner ; the coils and charges, and what other things in
equity fhall be decreed to the Captor, firft confidered and,
dedudled. i
Iffr^^'uo^* XXII. Bythe^/^////^of 2 7Eize;. 3. cap. 13. ifaMer-.
chant lofe his Goods at Sea by Piracy, or Tempelt (not
being wreckt) and they afterwards com^e to Land % if he
•Can make proof they are his Goods, they lliall be reflcred
to iiim in places Guildahk, by the King's Officers and
fix Men of the Country -, and in other places by the
Ix>rds there and their Officers, and fix Men of the Coun-
try. If a Pirate takes Goods upon the Sea, and fell^
them, the Property is aot thereby changed, no more-
than if a Thief uoon the Land deals them and fells them.
Godb, 193. Barhr^'s Cdic.
This Law hath a very near relation to that of the Ro-
mans, called De Ufii-Captione or the Atinian Law ; for
Atinius Ena6ted, That the Flea of Prefcription or long
poffeffion, lliould not avail in things that had been floln,
timihi ^s ^'"^^ ^^^^ Intereft which the right Owners had fhould re-
Jure Rom. main perpetual j the v/ords of the Law are thefe,, ^od
Avi. f. ti. fiirreptum^
Chap. IV. M Witac%\ 67
furreptum efi^ ejus rei sterna au^oritas ejjct^ where by Au-
Horitas is meant Jus Bominii.
XXIII. Yet by the Cormnon Laiv of England^ it has been ^%//s Cafe
held, That if a Man commit Piracy upon the Subjedls of ^ ^^^'^"s
another Prince or Republick (though in League with us) ^}"''^4"^?^
and brings the Goods into England, and fells them in a •^>.^^'^' '^'
Market Oi;^r/, the fame fhall bind, and the owners are Grotiusjib.'^,
forever concluded ; and if they fhould go about in the <:- 9-/£- ]^:
Admirdiy to (\v\Q^\on the Property, in order -to Reflitution, ^ ^^ ^^J^^^^^
they will be prohibited, {a) Hob. 79. ^ two^CaL^
In Trover for Goods of 400 /. value. Motion was for where a pro-
a Trial at Bar, the Goods being taken by a SpajtiJJ) Caper, i^ibition was
and brbught into Plymouth^ and from thence Shipt f^^^fb^^g ^^'
away without Condemnation, becauie tho* Br, Properly jj-aa was
38. fays the Property is altered by the Enemy's pofleflion made on
above 24 hours, which is good when they are brought Land and un-
into fife Port of an Enemy's Country, yet the conflant ff Jf/o'the"^
Opinion of the Civilians and the Practice at Guildhall in parpofe. Sed
i\\t Butch War, is that if fuch Goods be brought into a wV. Cro. EL
Neutral Port, or, as thefe were, into a Friend's, the Pro- 685. IV-v.
perty is not altered till Condemnation, and thefe Goods ^^^' lef'zJ
were taken from a French Man in League with us, which sluLzeo.iJ.
is ftronger •, and this being matter of Evidence, tho' the Lev. 25. ifr.
Defendant was only a Fador in England coulA not con- ^^J^^.'^.^^*
demn the Goods, but the condemnation was in HolLvid^ hel/thatif
whither they were fhipt y yet the Trial at Bar was granted, the Admiral
3. Keehle 397. Verdale con. Marten. Like C-^Jiz Radley and hath Jarifdi-
Belbow againfl Eglesfield & al. 2 Sa?id, 259. i. Vent, 173. ^'?^°^^'^^
Several Perfons were Owners of a Ship, which they thel'lattexs^'
fent to the Indies to merchandize, upon the High Sea depending
the Mariners and Refidue commit Piracy. Upon the thereon fnall
Return of this Ship to the River of Sanies the Admiral ^^ ^T/^^^p
fciz'd her, as Bona PyrataTum, the Merchants took the ^q^^.^^ ^h?' ^
Sails and Tackle out of the^Ship. The Admiral Ihall not theyarifeon
have the Goods iloln from other Men, but the Owner the Land,
(hall have them, i Rol Rep, 285. the Cafe o^ Hildehrand
and others.
XXIV. This offence was not punilhable by the Common
Law, as appears by the Preamble of the Sfat, of 28 H. 8.
^^/>. 15. but the ilime was determined and judged by the
Admiral, after the courfe of the Civil Law •, but by force
of the faid //^, the fame is inquired of, heard, and deter- ^
E 2 mined
68 ®f PltScf . BookI.^
mined according to the courfe of the Common LaWy as if
the offence had been committed on Land.
But by Lord Hale^ in Hijl. PL Cr. Vol. 2. />. 14, 15.
The Court of King^s-Bemh had certainly a concurrent
Jurifdidlion with the Admiralty, in Cafes of Felonies
done upon the narrow Seas or Coaft, though it were High
Sea, becaufe within the ^King's Realm o^ England : But
this Jurifdidion of the Common-Law Courts was inter-
rupted by a fpecial Order of the King and Council,
35 Ed. 3. And fince 38 Ed. 3. it does not appear, that
the Common- Law Courts took Cognizance of Crimes
committed upon the High Seas.
Trial of Pi- Stat. 11. and 12. IV, 3, cap. 7. All Piracies, Felonies,
racy. and Robberies committed in or upon the Sea, or in any
Haven, River, Creeks, or Place where the Admiral hath
Jurifdi6lion, may be tried at Sea, or upon the Land, in
any of his Majefty's Iflands, Plantations, Colonies, i^c,
appointed for that purpofe by Commiffion under the
Great Seal of England^ or Seal of the Admiralty dired-
ed to fuch Commiflioners as his Majelly Ihall think fit,
who may commit fuch Offenders and call a Court of
Admiralty thereupon to confift of feven Perfons at the
lead.
And for want of feven, then any three of the Commiflio-
ners may call others as therein is mentioned.
The Perfons fo affcmbled may proceed according to
the courfe of the Admiralty, and give Sentence of Death
and av/ard execution of the Ofi^enders, who fliall there-
upon fuffer Lofs of Lands, Goods and Chattels.
The Regifter of the Court, or if none be, the Prefi-
dent to take Minutes of the Proceedings and tranfmit tha
fame to the Admiralty Court in England.
If any natural born Subje6ls or Denizens of England
commit Piracy or any a6l of Hoftility, againfl any of his
Majefty's Subjedls at Sea, under Colour of a Commiffionor
Authority from any Foreign Prince or State or Per-
fon whatfoever, fuch Offenders fhall be adjudged Pi-
rates.
If any Commander or Mafter of a Ship, or Sea-man or
Mariner, turn Pirate, or give up his Ship, &c. to Pi-
rates, or combine to yield up, or run away with aay
Ship, or lay violent Hands on his Comm.ander, or eni-
dcavour
Chap. IV. €>( pitac^* 6^
deavour to make a Revolt in the Ship, he fhall be adjudg-
ed a Pirate and fuffer accordingly.
All Perfons who after the 29th of September 1700,
Ihall fet forth any Pirate ('or be aiding and affiiling to
any fuch Pirate) committing Piracy on Land or Sea,
or fhall conceal fuch Pirate, or fliall receive any VefTel
or Goods, Piratically taken, fliall be adjudged accef-
fory to fuch Piracy, and fuffer as Principals, according to
the Statute of 28 H, 8. which is hereby declared to be in
force.
When any Englifi) Ship fhall have been defended
by Fight againft Pirates, and any of the Officers or Sea-
men killed or wounded, the Judge of the Admiralty
or' his Surrogate in London^ or the Major, or chief
Officer in the Out-Ports, afllfted by four Subfcantial Mer-
chants, may by Procefs out of the faid Court levy upon
the Owners of fuch Ships, (^c, a Sum not exceeding
2 /. per Cent, of the Value of the Freight, Ship and
Goods fo defended, to be diflributed among the Officers
and Seamen of the faid Ships, or Widows and Children
of the flain.
A Reward of 10 /. for every VefTcl of 100 Tuns or
under, and 15 /. for every Veffcl of a greater Burden
fhall be paid by the Captain, Commander or Mafcer, to
the firfl Difcoverer of any combination for running away
with, or deftroying any fuch Ship at the Port where the
Wages are to be paid.
The CommifTioners aforefaid fhall after the 29th of
September 1700, have the fole power of trying the faid
Crimes, and Offences within the Colonies and Plantati-
ons in America governed by Proprietors, or under Grants
or Charters from the Crown, and may iffue their War-
rants for apprehending fuch Pirates, &c. and their Ac-
cefTories in order to their being tried there, or fent intp
England.
CommifTions for Trial of the faid Offences fent to any
Place within the Jurifdi6lion of the Cinque Ports, fhafl
be diredled to the Lord Warden of the Cinque Ports, or
his Lieutenant, and fuch Perfons as the Lord Chancellor
fhall appoint -, and the Trial to be by the Inhabitants of
the Cinque Ports.
P 3 Ail
ax PiraCf ♦ Book
All Seamen, Officers and Sailors, who Ihall defert the
Ships or Vedels, wherein they are hired for a Voyage^
fliall forfeit their Wages.
If any Mafief of a Merchant Ship or Veflel fliall after
the 29th of Sdptemher 1700, during his being abroad,
force any Man aflioar, or wilfully leave him behind, or
refufe to bring all his Men home again, who are in a Con-
dition to return, he fhall fuffer three Months Imprifon-<
ment.
The above A6i; 1 1 and 12 IF. 3. ch. 7. was continued by
J Geo. I. ch, 25. for five Years, i^c, and was made per-
petual by 6 Geo. i. ch. 19.. And tis enadied by 4 Geo. 1.
ch. II. fee. 7. that all Perfons who fhall commit any Of-
fence for which they ought to be adjudged Pirates, Fe-
^ Ions, or Robbers, by 1 1 and 12 W. '^. may be tried and
judged for every fuch Offence, according to 28 H. 8, and
fhall be excluded from their Clergy.
By Stat. 8. G<:o. i. ch. 24. Sec. i. If any Commander
of a Ship, or Other Perfon, fhall any v/ife trade with any
Pirate, or fhall furniih any Pirate with Ammunition or
Stores, or fit out any Ship with fuch defign, or confede^
rate or correfpond with any Pirate, knov/ing him to bt,
fuch, fuch Perfon fliall be adjudged guilty of piracy;
and fhall be tried according to Stat. 28. //. 8. ch. j^,
and Stat, n and 12 IV, 3. ch. 7. and being convicled
fhall fuffer as a Pirate. And perfons belonging to any
Ship, who fhall upon meeting any Merchant- man up*
on the High Seas, forcibly board fuch Ship, and though
they do not carry off fuch Ships, fliall throv/ overboard,
or dcflroy any part of her Goods, fhall be punifhed as
Pirates.
And ibid. fee. 2. Every Ship fitted out with defign to
trade with, or fupply any Pirate, and all the Goods put
on board fuch Ship, ihall be ipfo fa^o fovkkcd., one Moie-
ty to the King, and the other to the Informer, to be re-
c6vered in the High Court of Admiralty,
And ibid. fee. 3. All perfons declared AccefTories by 11
and 12 JV. '^. are hereby declared principal Offenders.
And by fee, 4. Offenders convided on this A61 are ex-
cluded Clergy.
XXV. The A^: 11 and 12 IV. 3. ch. 7. does not alter
the Offenccj or make the Offence Felony, but leaves the Of-
fence
Chap. IV. M ISttaC^ 7^
fence as it was before this A(5l, viz. Felony only by the C/- Cok 3. /»///.
'vil Law^ but giveth a mean of Trial by the Common Laii\ '^^^' ^^^^^^\
and infli(^eth pains of death, as if they had been attainted of
any Felony done upon the Land. The Indiflment muft
mention the fame to be done upon tPie High Sea.
Note, By 2 Geo, 2. ch. 21. If any Perfon be felonioufly
ftricken, or poifoned upon the Sea, or at any place out
of England^ and dies in England., or ftricken or poifoned
in England, and dies on the Sea, or out of England \ the
Fa<ft is triable in any County, according to the ,Courfe
of the Common Law, except Challenges for the Him-
dred.
XXVI. A pardon of all Felonies does not extend to Moore 756.
Piracy, but the fame ought efpecially to be named ; and py- 308. But
though there be a Forfeiture of Lands and Goods, yet ^^ ^^.^ ^^^^y *^^
there is no corruption of Bloorf, nor can there be an Ac- f"?"^e Ad-'
cejfory of this offence, tryed by virtue of this Statute ; but miral, and not
if there be an AccefTory upon the Sea to a Piracy, he before ^ the
muft be tryed by the Civil Law. e^rsT'f h""
ThQ Statute of 35 fi. 8. cap. 2. taketh not away the fg'^^no ^"y^Jp®
Statute for Treafons done upon the Sea, nor is Clergy al- tion of Blood
lowable to the Party on the Statute 2S H. 8. vide 14 Jac. °^ forfeiture
in B, R. Moore 756. plac. 1044. 3 ^^fi- ^ 1 2. ^^d^T"^^ *
XXVII. Though a Port be Locus publicus uti pars Oce- \ infl '^'cn:
mi., yet it hath been refolved more than once, that all njid. popa
Ports, not only the Town, but the Water is infra corpus §• 3o-
Comitatus,
If a Pirate enters into a Port or Haven of this King- j^-^^ 2 1 ^
dom, and a Merchant being at Anchor there, the Pirate ihers robbed
aiTdults him and robs hiiTi, this is not Piracy., becaufe the ^^e Ship of
fame is not done fuper altum Mare ; but this is a down ^^P^^^" ^^^^^%
right Robbery at the Common Law., >for that the Ad is in- chandtze^l?'
fra corpus Ccritafus., and was inquirable and punifhable oae Mr Mo/s,
by the Common LaWy before the Statute of 28 i/. g. aA4ercliantin
cup. 15. . London; and
they were in=.
, „ _ dided for it
at the Ccmmon Law, and were found guilty of the fame, ^nno 22 Car. 2. at the
Otd-JBai/y.
XXVIII. So if fuch a Piracy or Robbery be made in ^^oore 7^6.
a Creek or Port, in fuch cafes it has been conceived, that * ^^^- ^^^'^
Clergy is allowable upon the Statute of 28 H. 8. but if it ^^^^[^^ ^^^
be done fuper altum Mare., there no Clergy i§ allowable •, was fo ruled
E 4. , how-
72 €>f PiVaCV* Book I '
bythe-opmion howbeit, if ftich a Robbery be committed on great Rivers .
o Sir Lyonel ^\^Yi\n the Realm, which are look'd upon as common
the reft of the Highways, there perhaps Clergy may not be granted •, and
Judges, upon fo it was rul'd in the aforefaid Cafe of Hyde, who with a
the Piracy parcel of Men came one- Night in a Boat in the River of •
oXi'and^o^- "^^^^^^^^^ ^^^ "nder the Colour of Prefs-Mafters, board- , -
thers ; and he cd t^"^^ Ship of one Captain 67//f, and robb'd her, for
was executed which being taken and tried at the Old-Baily, by the
Jnno 1674. greater Opinion of the Judges there prefent, 22 Car. 1.
'Vide 19 E. 3. Q^y.^y ^y^g cienied him. By the Pardon of all Felonies, ati
9 H. 4. 2. ^he Common Law, or by the Statute-'Law, Felony fuper
Ma.']^b.\ln{l. altum Mare is not pardonable *, for though the King may
i^i^Dy- 30S. pardon this Offence, yet being no Felony in the eye of the
Law of this Realm, but only by the Civil haw, the
pardon of all Felonies generally extends not it •, for this
is a fpecial Offence, and ought efpecially to be men-;:
tioned. .?
XXIX. One Cohham was arraigned in Southwark, befores
the Commiffioners of Oyer and Terminer, for a Piracy:',
and Robbery committed on a. Spaniard, ^ ftetit mutuus Q
7toluit direBe refpondere : And it being moved by the At*
torney-General, v/hether he ought to have the Judgment
of pain fort ^ dure in this Cafe, Saunders, Chief Baron,
, Brown and Dyer v/ere of Opinion he fhould, and that by
the Words and reafonable Intendment of the Statute
of 28 H. 8. c, 15. and according to the Opinion fnpra,
the Judgment was given by Car us Serjeant. Dy, 241.
i^' 49-'
95.4.28.0*1- XXX. A Man attainted by virtue of that Statute, for-
^l^r^n^^^^ feits his Lands and Goods, yet there works no corruption
.V ' -^ ■ 'of blood, by virtue of that Attainder; nor can there be
any Acceffory of Piracy by the Law of this Realm ; but
if it falls out that there is an Acceffory upon the Sea, fuch
Acceffory may be puniflied by the Civil Law, before the
Lord Admiral, but he cannot be punifhed by virtue of
this A61, becaufe it extends not to Acceffories, nor makes
tLie Offence Felony.
28 Eliz. But- XXXL If one fleal Goods in one County, and brifigs
ler's Cafe ci- them into another, the Party maybe indicled in either
ted 3. hjiu. County; but if one commits Piracy at Sea, and brings
JqI. 113. ^Yit Goods into a County in England, yet he cannot- be
indicled upon the Statute, for that the original takirig
was
:hap. IV. ^t WivacV' 73
vas not Felony, whereof the Common Law took Cogni-
sance.
XXXII. If a Man is taken on fufpicion of Piracy^ and Marj^'s Cafe
I Bill is preferred againfl him, and the Jury find Ignora- ^3 >^- ^'^^^^
itus', if the Cowrto^ Admiralty will not difcharge him, ^^^^ 'y; 2^" '
he Court of King* s -Bench will grant a Habeas Corpus,
md if there be good Caufe, difcharge him, or at leafl take
Bail for him : But if the Court fufpedls that the Party is
t^uilty, perhaps they may remand him ; and therefore in
all cafes, where the Admiralty legally have an original, or
a concurrent Jurifdid;ion, the Courts above will be well
informed before they will meddle.
Trefpafs for breaking a Ship, and taking away the jujiijicathn in
Sails ; the Defendant juftified by warrant out of the Ad- Tref. by ivar-
miralty, by which he entered the Ship, and took away rant of the Ad^
the Sails. Objedlion, The breaking is not anfwered, pr Cu- ^^^^ ^*
r'lam its good enough, for the entry is a breaking in Law,
as Claufumf regit ^ &c. And that he may carry away the
Sails, becaufe this is the manner of their proceedings, and
grounded upon Reafon, becaufe the Ship cannot be kept
fafe, if the Sails be not carried away. Creamer againft
Tokely. Latch 188.
Suit in the Admiralty, the Defendant pleaded the Sta- statute of Li-
tute of Limitation; if that Court deny the Plea, Prohibi- mitation plea-
tion will be granted, or if they do receive the Plea, but dable there,
will not give Sentence accordingly. Prohibition will go.
Hardres ^02. Berkly and Morris.
If a Man be in cuftody for Piracy, if any aids or aflills Tehertom^j^,
him in his Efcape, though that matter is an Offence at 135.
Land, yet the Admiralty having Jurifdidion to punifh the ^^'^^' ^^5*
principal, may have likewife power to punifh fuch an Of- /^^g^^i'^i
fender, who is look'd upon (^uajl an AcceiTory to the Pi- 3^0.
racy ; but to refcue a Prifoner from an Officer of theirs,
they may examine the caufe, but they cannot proceed cri-
minally againft the Offender.
■ The Exemplification of the Sentence of the Court of
Admiralty^ under their Seal, is conclufive Evidence in a
Court of Common Law, Lord Raymond^ ^(^^,
. XXXIII. Anciently when any Merchants were robbed ^oEllz.^.par:
at Sea, or fpoiled of their Goods, the King ufually ifTued 2 Dor/. 24. de
miCommiffwnsundQY the Great Seal of England, to en- ^^^fJ^ff^J^
quire of fuch depredations and robberies, and to punifh Mercatori'bus
the
74 ^f piracy EooKi/^
fuper marede- the parties ; and for frauds in Contra6ts,»to give Dai-nao-es
pradahs. jq ^^^ Parties, and proceed therein feamdum Legem & con^
T.'t Dorf. the fii(^fi(din€m Attgli^^ fecundum Legem Mercatoriam^ ^ Legem
Cafe of WilL Maritimam ; all three Laws included in the Commijjions,
de Dunjiapley
a Citizen of IVinton* Fat. 32 J?. I. w. 4. Dorf. pro Willielmo Ferin ^ Domengo Perez
Mercatoribus, ^
^BuIJlrodezy. XXXIV. The Courts of ^^;;?/>/^r have a Sovereigh
. power to enquire after the Liberty of every Man, and th^t
he fhould not be deprived of the fame without juft caufe]
^ and therefore as in other capital Caufes, fo likewife in thji
they may fend their Habeas Corpus to remove the Body of
any committed upon fuch an account, and if they fee 'i
juft caufe, they may either bail, or difcbarge, or remand,
as the matter fhall feem juft before them.
Cok 3 Inpt. And altho' the Statute of 28 H. 8. r. 15. does not ah
foLi^l* ter the offence, or make the offence felony, but leaveth
the offence as it was before that Statute, {vtx,) Felony
only by the Civil Law^ and gives a mean of Trial by the
Common Law^ and inflicted fuch pains of death as if they
* ^fff. Admir. }^2A been attainted of any Felony ; yet it was refolved * by
Cafe of C<?»7^ ^^^ the Judges, and the reft of the Commiffioners then
ion Gnvyther. ptefent, that his Majefty having granted Letters of Re-^
^ al. prizal to Sir Edmond 'Turner and George Carew, againft tht
Subjects of the States-General of the United Provinces^
and that afterwards that Grant was called in by Procla-
mation, then mortified in the Treaty of Breda^ and af-
terwards fuperfeded under the Great Seal : That Care''d;{
(without Turner) having deputed feveral to put in Fxe-
cution the faid Commiflion, v/ho accordingly did •, an3
being indicted for Piracy, the fame was not a felonioij^
and a piratical Spoliation in them, but a Caption in or^
der to an Adjudication ; and thoug^i the Authority wai
deficient, yet not being done by the Captain and his Ma-?
^■inersj animo depr^dandij they were acquitted. '•
1
)
C H A i^
[75 1
CHAP. V.
I ^igljt of t!je iJflag, m to t^t acli«otM«
in ing tlje ?©ominton of tl^e 35rit(l|) ^ca.s.
njideratiom general as in refe-
ce to the fame.
Vhether Princes may hame an
lufi've Properly in the Sea.
That fuch an exdufive Domi-
n Tnay be, proved.
Of the Seay nxihether capable of
vifion as the Land.
'onfderations general, in re-
ence to Maritime Cities touch-
Sea dominion.
Of the Sea, by reafon of its in-
hility, whether capable of fub-
lion.
Of the Daminion of the Bri-
1 Sea afftrted long before, and
er fince the Conqueji of this Jfle
the Romans.
. The Duty of the Flag, but a
tfecuti've Ackiwwledgment of that
'ght. And of the Ordinance of
^
Haftings declaring that Cuffoma"
ry obeifance.
IX. Confiderations had 072 fome Trea-
ties, in reference to afferting the
Duty of the Flag.
X. Of the extent honvfar thai duty
is required and payable.
XI. Of the duty of the Flag, not a
hare Honorary Salute, but a Right.
X I f . Of the importance and 'value of
the fame f as <\vell in Nations Fo-
reign, as in England.
XIII. Of the effeas of fuch a Right
and So'yereignty. Of the extent
of this Dominion by the La^ws of
England.
XIV. Of the Duty of the Flag mt
regarded as a Ci'vilityt hut com-
manded as a Duty.
XV. Of the importance of that ac-
knonjcledgment.
\ Fter the Writings of the Illuflrious Selden, cer-
^^ tainly 'tis impoffible to find any Prince or Repub-
or Tingle Perfon indued with Reafon or Senfe, that
ts the Dominion of the Briti/h Sea^ to be entirely fub-
to that Imperial Diadem ; or the duty or right of the
•, which indeed is but a consecutive Acknowledgment
lat ancient Superiority : Yet there have not been want-
fome, who though they have not queftioned the for-
, have highly difputed the latter.
;ut there are fome fatal Periods amongft our Northern
ions, when the Inhabitants do become fo brutal and
udicate, that no obligation of Reafon, Prudence,
ifcience, or Religion can prevail over their PafTions,
:cially if they become the devoted Mercenaries of an
ilacable Fa^ion f, in oppofition to ail that can be cal- ^ lovejtm.
led
[75]
CHAP. V.
tfft iSt's^t Gf tlje iJflag, as to tU acfinotu*
leDfltiTg t!je ?©ominion of tl^e 35nrtD[) ^ca.3.
f . CoTiJideraiions general as in refe-
rence to the fame.
[f. Whether Princes may hanje an
exclufive Property in the Sea.
III. Ihat fueh an exdufive Domi-
nion may be^ proved.
IV. OftheSea^ nvhether capable of
Di'vi/ion as the Land.
V. Confidtrations general^ in re-
ference to Maritime Cities touch-
ing Sea dominion.
VI. Of the SeUy by reafon of its in-
f ability, <vjhether capable of fub-
je8ion.
^11. Of the Dsminion of the Bri-
tifh Sea afftrted long before^ and
enjer fince the Conqueji of this Jfe
by the Romans.
VIII. The Duty of the Flag, but a
confeculi'ue Ackiwwkdg/nent of that
Right, And of the Ordinance oj
^
Hadings declaring that Cujloma'
ry obeifance.
IX. Conjiderations had on fomeTrea-
ties, in reference to afferting the
Duty of the Flag.
X. Of the extent hoivfar thai duty
is required and payable.
XI. Of the duty of the Flag, not a
bare Honorary Salute y hut a Right.
XII. Of the importance and 'value of
the fame f as <\vell in Nations Fo-
reign, as in England.
XIII. Of the effeas of fuch a Right
and So'yereignty. Of the extent
of this Dominion by the Lanjus of
England.
XIV. Of the Duty of the Flag not
regarded as a Ci'vility^ hut com"
manded as a Duty.
XV. Of the importance of that ae^
knonvledgment.
I. \ Fter the Writings of the Illuftrious Seldeft, cer-
£\^ tainly 'tis impoiTible to find any Prince or Rcpub^
Ucky or Tingle Perfon indued with Reafon or Senfe, that
doubts the Dcmimcn of the Briti/h Sea, to be entirely fub-
jed to that Imperial Diadem y or the duty or right of the
Flag^ which indeed is but a confecutive Acknowledgment
of that ancient Superiority : Yet there have not been want-
ing fome, who though they have not queftioned the for-
mer, have highly difputed the latter.
But there are fome fatal Periods amongft our Northern
B-egions, when the Inhabitants do become fo brutal and
prejudicate, that no obligation of Reafon, Prudence,
Confcience, or Religion can prevail over their Paflions,
efpecially if they become the devoted Mercenaries of an
implacable Fa^ion f, in oppofition to all that can be cal- + Uvsnm.
' led ^
76 €)f tl^e flag* Book If
led either juft or honourable; we need not rip up the
Carriage of that late infolent Son of a Tallozv- Chandler;
whofe Deportments made him no lefs infupportable at
home, than he was amongft Foreign Princes ; the tefti-
monies of his greateft Parts and Abilities being no other
than 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 ancient Right and Regalites by the
fubtil Arguments of JVit and Sophiftry ♦, nor are they to be
fupplanted or overthrown by Malice or Arms, fo long as
God and good Men will aflift, in which his facred Ma-
jelly did not want, when he aflerted his Right v/ith the
Blood and Lives of fo many Thoufands that fell in the
dilpute.
II. That Princes may have an exchifwe property in th't
Sovereignty of the Jeveral parts of the Sea ^ and in the pajfage,
Fifhing and Shores, is fo evidently true by way of ta6l, as
no man that is not defperatejy impudent can deny it:
the Confiderations of the general practice in all Maritime
Countries, the neceflity oi order in mutual Commerce, and
the Safety of mens perfons, goods, and lives, hath taught
even the mod Barbarous Nations to know by the Light of
human Reafon^ that Laws are as equally neceffary for the
Government and Prefervation of the Sea, as thofe that ne-
gotlate and trade on the firm Land ; and that to make
Laws^ and to give them the Life of Execution, mud of
neceffity require a fupream Authority ; for to leave every
-part of the Sea and Shores to an arbitrary and promifcu-
■ ctts Ufe^ without a correcling and fecuring Power in cafe
of wrong or danger, is to make Men in the like Condi-
tion with the Fiflies, where the greater devour and fwal-
iow the lefs.
III. And though the Sea is as the Highway^ and com-
mon to all ; yet it is as other Highways by Land or great
Rivers are, which though common znd free, are not to be
See that Plea ufurped by private Perfons to their own entire Service, but
of Chiozzola remain to the ufe of every one : Not that their Freedom
for the Fe;:eti- -jg {^^q]^^ ^s that they fhould be without Prote^ion or Govern-
^y cTihe^A-^^^^^ of fome Prince or Republick, but rather not exclude
itriatick Sea, the fame ; for the true Enfign of Liberty and Freedom
at the end of is ProtcEfion from thofe that maintain it in liberty,
Mi^eldefi.
CrtAP.v. £)f ti^e flag. , 77
IV. And as the Sea is capable of Protedllon and Go-
vernment, fo is the fame no Jefs than the Land fubjed to
be divided amongft Men, and appropriated to Cities and
Potentates, which long fince was ordained of God as a
tiling moft natural : whence it was that Ariftotle faid, ^at
unto Mciritime Cities the Sea is 'the Territory^ hecaufe from
thence they take their fuftenance and defence \ a thing which
cannot be, unlefs fart of it might be appropriated in the
like manner as the Land is, which is divided betwixt Ci-
ties and Governments, not by equal Parts, or according
to their greatnefs, but according as they are able to
rule, govern, and defend them ; Berne is not the greatelt
City of Switzerland ; yet ilie hath as large a Territory as
all the reft of the Twelve Cantons put together : The Ci-
ties of Norembcrg and Genoa are very rich and great, yet
their Territories hardly exceed their Walls : and Venice
the Miflrefs,and Queen of the Mediterranean, was known
for many Years to be without any manner of PofTelTion
on the firm Land.
V. Again on the Sea, certain Cities of great Force
have poliefTcd large quantities thereof; others of little '^^^ [j^^^'^"^®
Force have been contented with the next Waters. alledaed by
Neither are there wanting Examples of fuch, as not- xh^Hanjiatique
withftanding they are Maritime, yet having fertile Lands Towns, at the
lying on the back of them, have been contented therewith ^f^^^^^^^^^^^^-
•'. L - • n TA • • 1 tingof theSo-
witnout ever attempting to gain any Sea-Domtmon ; others vereignty of
who being awed by their more mighty Neighbours, have the Adriatkk^
been conftrained to forbear any fuch attempt; for which Inter res com-
two caufes a City or Republick, though it be Maritime, TT' ""^^ '^^'
■ -1 rr- fr r 1 r, ^ \ Jmperator nu-
yet It may remain without any pojjejfion of the Sea. God meratmare,^
hath inftituted Principalities for the maintenance of Juftice Ueo mmo in
to the benefit of Mankind; which is neceflary to be exe- ^aripifcari,
cuted as well by Sea as by Land : St Paul faith, that for ]mIT!'i^
thiscaufe there were due to Princes, Cufioms and Contribu- adverfus'inU-
ttons, bcntem ccmpe-
Tf- tit ad'ioinjuri-
arunif I. \o.
fi quis in mare, I. ivjuriarum^ feSf. ult. de injurits. Sin iittora quoque communia
fMt I. 2. re di'uerf. ^hiia acceJJ'oriu7n funt maris y l^ accejjhrium fequiiur naturam Prin-
dpalis, /. 2. de peculio. legat. c. accejjcrium de rcg. jur. in 6. Ad littus maris igiiur
accedere qui'vis potejl, non pifcandi tantum gratia, fed etiam adificandi ^ occupa;tdi cau-
fa quod in tit. de acquirend. Dom, I. in Hit. ff. ne quid in ioc. pub. Jo. Angeliui J. C. de
repub. Eanfat. par. d.fol. 85. Edit. Francof. Jn. Dom. 1 641. Bat thefe argumencs
were eafily anfvvered by the Venetian Lawyers j ^et?iadmodum communio littorum re*
fringittt
-y •
78
M tt)2 ifla^.
Book 1
fringitur ad populum, a quo occtipata/unty lib. 3. fed. It tiara. D. de quid in loc. pub. hn
etiam communio maris : adco tit per fnare a nemine occupatum na'uigatk Jit omnino libera ;
per mare autem occupatum ab aliquo Principe ii libiram habeant nanjigationem qui funt iUi
Priiicipi fubjeSli ; alii 'veiQ eatenusy quatenus idem Princeps permittit. Julius Pacius de
Dom. maris Adriatici.
It would beagreatabfardlty to pralfe the well Govern
ment and Defence of the Land, and to condemn that^
the ^6(1 ; nor doth it follow, becaufe of the vailnefs of tlft
Sea^ that it is not poflible to be governed and proteded j
but that proceeds from a defe^ in Mankind ; for Defarts,
though part of Kingdoms, are impoffible to be governed
and protedled, witnefs the many Defarts in Africk^ and
the immenfe vaftities of the New World,
VI. As it is a gift of God, that a Land by the Laws and
publick Power be ruled, proteded, and governed : fo the
fame happens to the Sea •, and thofe -f- are deceived by ^
grofs equivocation, who aver that the Land^ by reafon of
\l% ft ability^ ought to be fubjeded, but not the Sea^ for
being an unconflant Element,^ no more than Air \ foraf-
much as they intend by the Sea and the Air all the parts
of the fluid Elements^ it is a moft certain thing, that they
cannot be brought under SubjeHion and Government^' be-
caufe whilft a Man ferves himfelf with any one part df
them, the other efcapes our of his power i but this chan*
ceth alio to Rivers^ which cannot be detained : but when
one is faid to rule over a Sea or River,, it is underftood not
of the Element,, but of the Site where they are placed : the
Waters of the Adriatick and Britijh Seas continually run
out thereof, and yet it is the lame Sea : as the 'Tyber^ Poe^
Rbyne, Thames, or Severn, are the fame Rivers they were
a Thoufand Years fince *, and this is that which is fubjed
to Princes by way of Protetlion and Government.
Again, it would feem ridiculous if any Man would af-
fert that the Sea ought to be left without Protedion, JJ''
that any one might do therein well or ill, robbing, fporl*'
ing, and making it unnavigable, or whatfoever fhould
feem fitting in their Eyes ; from all which it is apparent^
that the Sea ought to be governed by thofe to whom it moft
properly appertains by the Divine Difpofition. "'^
Vlf. Wlien '* Julius Cccfar firft undertook the Invafion
of this Ifie^ he fummoned the neighbouring Gauls to iiV"
form him of the Shores, Ports^ Havens y and other things
convenient
*|- Grotlus mare
iih&rum. Com'
munio parit
difcordiam :
quod communi-
ier pojjidetury
*vitio naturali
negligitur :
Habei com^
Tnunio rerum
gerendarumy
dijjtcultatem
Leg. pater.
J. dulcijfime
Leg, 2.
^ Qjii omnia
fere Gallis
erarit incog'
nita, neque
tniui tdtiius
:h AP. V. M tf)t flag. 79
Dnvenient that might accelerate his intended Conquejl ; fr^tor merca-
ut from them nothing could be had, they anfwering, All ^^J'' ""fji ^^^
bmmerce and Traffick, and vifiting their Ports, was in- 'JquTehipfa
rdi^ed to all Nations before licence had •, nor could any but guidquampr^^
Merchants vifit the fame, and then had they places f teraramman.
Tigned them whither they iliould come ; nor was this ^^^^"""'^ f^^'^'^
)ominion that the Britains then ufed, commanded with- quJfmtcon^
lit a Naval Force ; the fight of which when Cafar faw, tra GalUam
e preferred them before thofe of the Romans : For upon ^^^^^ ^fi- ^'^^^
lat occafion it was that C^^r^ having feen thofe Auxi- ^"l^f ffj'l\
cry Squadrons^ which the Britains fent the G/iuls in their | GaulsTown
'expeditions againft the Romans^ took occafion to find nediX Tartnouth
at that Warlike People, whofe bare Auxiliary Aid Ihook ^^'^^Z then, as
le Flower of the Roman Squadrons. 'on^oUhf*
common pla-
19 of Mart or Commerce for the Gauls, ^od omnibus fere Galli hoflibus nojiris inde
bminijirata auxilia intelUgebat»
And when the Romans htc^mt Conquerors of this IJle^
le fame Right or Dominion was during all their time fup-
orted and maintained, when they failed, round their new
xhieved Conquejl s in the time of Domitian^ Agricola giv- Tacit, in njita
ig terror to all the neighbouring Nations, JgricoL
But when that Mighty Empire became fubject to Fate,
nd this Nation by the continual fupply of Men, which
ent out of the Kingdom to fill up the Contingences of
le Roman Legions, became at laft fo enfeebled as to ren-^
erusa Prey to th^ Saxons % which Empire having fettled
^cace with their Banijh Neighbours, and quieted their
wn home-bred Quarrels ; and having reduced the feve-
al petty Kingdoms of their Heptarchy under one Diadem,
hey forgot not to aflume their antient Righi and Dominion
f the Seas ; as did the mofl Noble Edg^ir f, who kept f Jhitonantii
lO lefs a Number than 400 Sail of Ships to vindicate and ^^^ largifiua
fcertain his Dominion, giving Protedion to the peaceable, '^^^^«^'^?«'
nd punifhment to the offenders : nor did his Succefifors ;„^ T -p^'
flit 1 ^~t yMi/i t ^x"
zlbetdr£d, Canutus, Edmond, and others that followed of Edgarus An-
he Banijlj Race, any ways wave, reiinquifh or lofe that glorumBafi-
Royalty, but obfequioully maintained the fame down x^o ^^^'^ omnium*
he Conqueror, and from him fince for upwards of 1200 f„fuZilm Oc-
y^ears in a quiet and peaceable PoffelTion. . ^eani.qu^Bri-
tanntam cir-
f npQ cu7J'j<zcentf(un-
\
qui
8o flDf tiie f lag. Book I
^aramque NattGnum qu<e infra earn includuntur, Imperator & Dominus. Ex Chart.
fondam. Ecclef. Wigor. Sir John Burroughs, fol. 12. Idem quoque EdLgzr\i% ^0.
Na'ves congrega'vitf ex quibus omni anno poji Fejium Pafchale 100. Naves ad quamlihv.
Anglia partem jlatuit ; Jic ajiate Infulam circumnavigavit : hyeme njero judicia in "Bra
vincia exercuit. Ex Ranulph. Ceftrenf. fol. 22. J. B.
To mention the antlent Commiffions^ and Exercife of
this Sovereign Power, Safe-ccnduEi^ Writs ef Seizure ^ At-
refts^ Records of Grants^ and Licences to pafs through the
Sea and to fifli, Parliament Rolls and the like, f would
proved by make a Volume ; in a word, li Right of Prefer iption^fuc-
Mr Selden, ceffiou of Inheritance^ continual Claims matter of Fa5f^ cm
' that it would fent of Uifiory and Confeffons^ even from the Mouths and
be imperti- p^j^g o^ adverfaries^ be of any moment to the averting of
Traft^to re- ^ Title, his Sacred Majefty may be prefumed to have as
liearfe the good a Title to that, as the moft abfohite Monarch thii
authorities day OH Earth, hath to whatever he can claim or does
fer. Armach. Efif. Hihernia Sylloge, />. 121, 163.
VIII. Now the Duty of the jfltlg is no more but a con
fecutive acknowledgment that the Right and Dominion o
the Brittfh Seas^ (not as a bare Honorary Salute or Cm
77tony^ but as an ahfolute Sign of the Right and Scvereipt
of thofe Seas v^here they are obliged to flrike Sail) are
him to whofe Flag they veil, and pay that duty to ; ani
in fubfcance is no more but that the King grants a gene
ral Licence for Ships to pafs through his Seas, that an
his Friends, paying that obeyfance and duty, like thoft
fervices when Lords grant out Eftates, referving a Ro*
or Pepper-Corn^ the value of which is not regarded, bo
the remembrance and acknowledgment of their Bemfi
&or'*s Right and Dominion,
To be paid by The Duty of the Flag or Salutation, is to be paid nc;
weU aTFo °"^y ^y Foreigners, but alfo by natural born Subjeft
reigners. ' ^^^^ ^^^h who refufe to pay the fame, may be brought to
the Flag to anfwer that Contempt.
That this hath been an Antient Cuflom^ always wait
ing on that Sovereignty, appears by that memorable Rf
cord upwards of 500 years fmce made, where it is declare^
by King John what the Antient Ctiftom was, inthet
interLe^^. Ma- Words ; cijat if ^ licutenant in anp aiDji?ao*r^ fo
Tinas fuh fine oioaiucD Dp Cammou Couucil of tijc Eiitst: jin, i^
encouiiw
Chap. V. Mt1^ti!laQr 8i
tntotmttt upon tlje Sea anp ©SfpS oi Ctefiels, la^ ^'^^^* ^^^«^' ^^-
Bert 0? urt!aoeit5 tfjat toill not ftme ants &ni timf^f'^i"^'.
mmtt^ at tfie Commanament of tl)ttimunmivZd i.^ii
'Of tfie iStng:, but U3tU figfit asaintt tljem of tlje jf !eet) nance ai Ha.
t&at If ttep can bt tafeen? tljep be teptttea as cEne- fti^gs*
mit&y anD tfjeii: ©Sips, flleffe^ aim ©oofig tafeeit
ano fo?:ttteli b$ tije iSooCS of CnemieSr alttjouglj
tlje ©aaecg o? f ofTelTojis of tlje fame tooults come
afceciijacos, aim alleoge^ tljat tijep are tlje Sljipg,
eicITeis, anti ©ao9S of tljofe tijat are jFrfenos to one
Uio ti}t Mns ; alio tfiat tlje common iDeople in tlje
fame be cfiamiea bp Impjifoument of tljeir 'Bmit&
foi t&eir Eebellion, bp afrcretioiu
Thus this Immemorial Cuftom v/as by that prudent Prince
affirmed, the which hath been always before, and ever
fince (without interruption) -by all Nations conflantly paid
to the Zhips of War^ bearing the Royal Standard^ and
other of his Majefty's Ships^ wearing his . Colours and En-
figns of Service y he knowing that undoubted Maxim of Leon Leffim de
State, nat Kingdoms are preferved by reputation^ which isJj'J^^'^'^J^^*.
as well their fir ongeft fupport in Peace^ as their chief eft fafety j^^^'jg^ *
in time of War \ when once they grow defpifed^ they are ei-
ther fubje^ to Foreign Invajions^ or Domcftick "Troubles^ the
which (if poflible) that Prince v/ould have prevented, but
he lived when thofe Celeftial Bodies, which govern the
adions of Princes^ feemed to frown on the mod Virtuous
and Wife.
IX. And as there'is no Nation in the World more ten-
der and jealous of their Honour than the EngliJIo ; fo none
more impatiently tolerate the diminution thereof. Hence
it was that in all Treaties, before any thing was afcer-'
tained, the Dominion of the Seas, ^.ndftriking the 'Top-fail
was always firft provided for.
In the Year 1653. ^^^^^ ^^^ Dutch had meafured the
length of their Swords with thofe of this Nation, and
being fenfible of the odds, had by their four Am-
lajfadors moft humbly befought Peace, this very Duty
of the Flag was demanded by the 15th Article, in thefe
words :
^^ijat m &UW atttJ ^tm& of tlje xm ^nitm ^ ^^'^* That
|&?o\)ittceg, m mil i©eiiof ^ar momm^ be t&ep ^C^T&iT
m Uiigie S)l)fp05 01 in Jfleets, meeting at ©ea tBitij ever infened
F • aUp any fuch Ar-
8^ ~ J©Ml)elFlag* Book I.
fide into any ^|tj; of tljC ©IjIpS Of tW ©tcltC Of England, 01 tit
Treaty: Our f.^^jj, ftrWcc, auo tDcaniis tije Stl^ Aj^H At^tfee tje
R)ght and ^ ^^j^j, jpjj3^j, j jjj.j^ Cop^Cail, uiitil tljcp poffeii
?ve"he" ./. bv •, ana ajall lifeeluifc fubmit tUrmfelieis to be itOteli
/;>?. Sea having if tl)zttto terjuireB, aitti peif 03111 all otf)zt tcfp^ctg
never been j^^ to tljc fasC ConimoiHucaltfi of England, to iDljom
difputed be- jjjg Domiuioii mw ©otieceignip of tlje Britiai stag
fore, but by i.<^,^..^
an immemo- UUUllli* • ^
rial prefcrip-
tion and pofTefTion tranfmltted to us, and fuppofed as unquelllonable by all Princes.
'• This was fo peremptorily demanded, that without the*
folemn acknowledgment of the Sovereignty over the Britifh,
Seas^ there was no Peace to be had. As to the ac-,
know/edging of the Sovereignty and the Flag, they were wil-^
ling to continue the /Intient Cujiom^ but that of Vifitin^
was Ibmewhat hard : 'tis true the latter Claufe was by thfs^
LeoahAit^ma, Ufurper waved, for Reafons ftanding with his private lo;-?
ftL 847. tereft ;■ but the firfl was (with the addition of the fe words;
• — ftt fuclj ttiatiiicr as tfje fame Ijatlj been fo?metlg
obfetbeD i\\ anp tinier tuljatfoebei:) made abfoiute by
the 13th Article between Him and that Repuhlick, in thefe,.
Words : Item quod Naves ^ Navigia di Alarum Fodder at a- ^
mm Provinciarum^ tam hellica iB ad Hojlium vim propul^,.
fandam injlru^a, quam alia, qii^ alicui e Navibus bellicis-^^
hujus Reipuhlic^ in marihus Britannicis obviara dederint^
vexillum fuum e mali vert ice detrahent, ^ fupremum velum
demittent^ eo modo^ quo ullis retro tcmporibus^ fub quocunque,
anteriori regimine unquam obfervatum fuit, and from thence
Sept.i^.1662. it was tranfcribed into the loth Article 2XlVhitehall, and
afterwards into the 19th Article 21 Breda, and from thence
into the 6th Article made laft at TVefiminfter, and thatj
Claufe of fearching of each others Ships made reciprocate,
Dec.\?>. 1674. by the 5th Article made in the Marine Treaty at London ;^
^- ^' but that extends not to Ships of War, but only to the.
Ships of Subjeds. v
X. By the Britijh Seas in the Article about the Flag.
are meant the four6'^^j, arid not the Channel only ; for in.
*But now by ^^^^ ^^^^^ Article of the Treaty in 1653, they did exprefs
the Jaft treaty what was meant by the BritiJJj Seas^,
at Weflyninjier
the dominion is afcertained from Cape Finijlem to the middle Point of the Land Van
\itaten in K'jr-v:m Feb. o. 1671,
Cijat
Chap. V. SDf tlje flag* .2^
coat tfje 3i«Ijabitantg anO ^uhicm of t&e ffltntt el3 ^^^ ^^'^^ f«^'
Britain am Ireland, atlB tlje 3|(leS tiJttJjm tl)C fame, propofed by
commonli^ callet! tlje Biitiiii sea., untftoat anv mtami ^^/^;;^«^^^
0? iiifucp to be offcreti tfjem fap tlje ^aijipg oj People ;;t;[:J'^!f
of tljiies Commontuealtf) ; but on tliecoatrarp fljalf of c//...^' .
i>r/-
fie treateD tuitlj alt laue ana finenBtp cffjtc^, ana but th » 5,
map iifeelDife toitl] tljece S0eit of (LUar — - not £^- 'i/^^ Mjniiters
ceeDinn; fucij a ji2itmbee as Ojall be agreeo upon — '?;:^f °^ .
fail, pafg ana repafg tlj^ouBU tlje faia ^eag, to ana z..;!-;!; ata
from tlje CoiintHes ana \^om bepona tljem h but m had ic accord.
cafe t!je fata States-Generai Hjall IjaBe occafioit to pafs ^^g > •
tb?ouiji) ttje faia ©eas untb a gteat number of &3en
^ of mat, tfjep fljall gtbe tfjree ^ontb^ mtict of
f tfieir (ntention to t&e Commonlueaitb, ana obtain
tWt confent fo^ tlje paffruff of fuclj a jf leet, fo? p?e-
benting of jeaioufie ana mtfunaecaanaing bettoirt
tlje Stares bp uieans tljereof.
The firft part of this Article doth plainly fet out the
extent of the Britifh Seas^ and that it is not the bare Cba-
nel alone that comprehends the fame, but the four Seas :
and the fame is further explained in the Great Cafe of
ConflaMe's, v/hciQ the Dominion of the ^^een (before the ///// 29 Zi/z>;
Union) as to the Seas, did extend mid-way between E?7g- ^^'- R- the
/Wand Spain^ but entirely between England and France ; jf^'^^f ,^^'p
t\it French never had any right or claim to the Britijh jJ^jJ/^'q^^^
Seas ; for in the Wars between Edward the Flrft and Leollhrd ^^
Philip the Fair^ (all commerce on both fides being agreed f^^- 7-2-
to be free, fp that to all Merchants whatfoever there fliould
be inducia^ which were cxWtd fitfferantia Guerr^^ 2iV\d^'e^^''^^^eDom:
Judges on both fides were appointed to take cognizance ^^'"^^ -''• 2- '"•
of all things done- againfl thele Trucks ^ and fhouid cxer- 7- 2 .
cife Judicium fecu'fidum Legem Mcrcatoriam & for mam fuf- Rolls Ahridg,
fer amide) it was contained in the firft provilion of that ^/'r^n. 174,
League, that they fhouid defend each others Rights
againft all others \ this aftei wards occafioned the intro-
ducing that Judgment in the fame King's time, (before
thofe Judges, chofen by both the faid Princes by the ^'^^ 4 ^#'^»
ProSiors of the Prelates^ Nobility^ and High Admiral of^42.
F 2 E^ng-
4m ^
84. £)f tije flag* Book I.
England^ and all the Cities, Towns, and Subje6ls of £^^.
layid^ &c. unto which were joined the fuffrages of the
mod Maritime Nations, as Genoa^ Catalonia^ Spain, AU
main, Zeciland, Holland, Friezeland, Denmark and Nor-,
way, and divers other Subjeds of the Roman Empire]
againft Reginer Grimbald, then Admiral of France, for
that there being Wars between Philip cf France and Guy
Earl of Flanders, he had taken Merchants upon thofe
Seas, in their Voyage to .Ftei^rj, and defpoiled them of
their Goods ; whereas the Kings o^ England and their
Predeceflbrs (as they all jointly do declare and affirm)
-without all controverfy beyond the memory of Man have
had the Supreme Government of the Englijh Seas, and the
JJlands thereof.
\ Ro. Jh. P reefer ihendo fcilicet Leges, Statutaatqtie interdifia armo-
528. pi. 2. mm, naviumqtie alio ac Mercatoriis armamentis injlm^a-
rum, caufaiiones exigendo, tutelam pr^ehendo, uhicunque opus
ejfet, atque alia conjiituendo quiscunque fuerint neceffaria ad
pacem, jus ^ aquitatem confervandam inter omnimodas rates
An unlverfal t^'i^ externas quam in Imperio Anglicano comprehenfas qua per
confent of all iUud tranfterint -, fupremam iifdem item fuijfe atque eJJe tute-
Nations. i^yyi . pierum mix turn Imperium in juredicendo fecundum di5las
Leges, Statuta, prafcripta Cs? interdiUa, aliifque in rebus
qua ad fummu'in hnperium attinent in locis adjudicatis.
Which memorable Record apparently fhews, that
4. hjiit, 142. the Kings of England have had ijlud regimen & dominium
Sddencap.z-]. exclufive of the King o^ France bordering upon the fame
Mare claufum. g^^g^ ^^^^ ^f ^]] other Kings and Princes whatfoever •, and
it was there adjudged that Grimhald\ Patent was an ufur-
^\r John Bur- patiou OH the King of England's Dominion, and he ad-
^^^.^^''■^'^^•42' juc^ged to make fatisfa6lion, or if he proved unable, then
the King his Mailer fhould, and that after fatisfadiori he
be rendred to punifhment.
And as to the fecond part of the Articles of giving no-
tice, it was but an A61 of common Prudence ', their late
unexpeded Vifit, which they then gave, put the Englijh
to fome furprife ; but they facing the Batavians, foon
made them knov/ 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
.^..uni
Chap. V. S)f ti^e JTraff. 85
which their Anceftors had with fo much Glory acquired
and aflerted.
X|. By the Article of the Offenfive and Defenfive Anno 1635;
League between France and the United Provinces^ it was
agreed. That if at any time the Dutch Fleet ( — ■. — which Leoah AU%.
were to fcour the French Coafis in the Mediterranean from ^^fi{ft TraSi,
Pirates) (hould at any time meet the French^ the Admiral yj"' !^^'
of the Dutch was to ft r ike his Flag and lower his 1.' op -fail -^X Edit, Lugdi
his firfl approach to the French Fleets and to falute the Batavor
Admiral of France with Guns, who was to return the faid V*^^^'^ '^54»
Salute by Guns alfo, as was ufual when /Z?^ Dutch and Eng-
lifh Fleet did meet.
Only in this the Right of the Flag o^ England differs
from that claimed by the French ; for if there had been a
failure on the part of the Diitch^ of paying that refpe6i: to
the French^ the fame would have amounted to no more
but a breach of the League : but the not llriking to the
King of England's Flag, is open Rebellion ; and the Article
does fo fignify, for it is there mientioned as a Right and
Sovereignty, not a bare Dominion only, like that of Jeru-
falem to the King of Spain. 'Tis very true, the refufing
of it is an abfolute annulling of the Tr^^aty ; tor though
in the League with England it is mentioned, yet there is
nothing of any concefTion granted by the fame, but only
recognized there as a Fundamental of the Crown and
Dignity of the Kings of England •, nor was the fame ever
fo much as mentioned in any former Treaty before Crom^
well's time, as we have already mentioned, but it wlis al-
ways a Claufe in the Infl:ru6lions of the Admiral and tlie
Commanders under him. That in cafe they met with
any Ships whatfoever on the Britijh Seas that refufed to
ilrike Sail at the Command of the King's Admiral or his
Lieutenants, that then they fhould repute them as Ene-
mies (without expecting any declared Warj and deftroy
them and their Ships, or otherwife feize and confifcate
their Ships and Goods ; and thefe Inllrudions amongft
others continue to this day. The like are given by the
Venetians to their Captains in reference to the Adriatick
Sea, and by feveral other Princes.
XII. The Duty of the Flag that had been fo conflantly
paid to our Anceftors is of fuch advantage to the con-
tinuing the Renown of this Nation, that it ferveth. ta
F 3 imprini
86- SDftl^eflag^ Book I.
print nezv Reverence in Foreigners that render it, and adds
new Courage to thofe of our Seamen that exa(5l it : and
fince 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 Subjcds at
Home and Foreign Allies Abroa^l And as there is no Nar
tion in the World more tender of their Honour than the
EngJifl?^ fo none more impatiently tolerate the diminu4
tioii thereof. With v/hat refentmcnts would not only the
more Generous and Nobk^ but even the popular and vulgar
Seamen detefb this or any fucceeding Age, ihould they<
remit or lofe that 7^^^^//>y, thofe Acknowledgments which?
their PredecefTors with fo much Glory aflcrted, and the
Negle6t whereof was always punifhed as open Rebellicn ^
' The indignity of fuch an Action being fufBcient to en flame
the whole Kingdom. The confideration of which, befideg
his Sacred Majefty's own Royal Inclination to the fame,
and his evident teftimonies never to abandon a Ceremony
of fo high a concernment ; witnefs the expofing the one
half of his own heart, his Royal Highnefs^ in tiie affert*^
ing the i^ie, with fuch Fleets and in luch Battles^ that nrt
age or time can fhew a Memorial of the like ; are caiifes
fufficient to create in us new flames of Love to thofe Royal
Patriots and Defenders of our Rights, Private Perfons
move_ 1 n__aQ other jphere^nd act by otherJR.ules than
Sjv^xeipi Powers^ ; the regaTj^jF^TredjI^i^^
to attem t ^^ oftgntimes^^^g!^^ thoiroTutiljtjr^orQtlier fe)tiYcr; \M
the change of ^^l^f^Jiecelves^^
old Cuftoms gueftion^dTor^jch punctilio's, jf they relinquifli'thenrfoc
and Ufages, otKerjemokiments or peace Jake ; but Soyereigns^cj^nript
anTabufe's ^SLH^i^^^^^']?!!. ^^^^^^^ paTticipate in their
are upon fuch Honour and_Indignities •, they have^Prop^_rtyj_ .a^dire6t
^n account (Right in the former ^^^Sovereigns cannot alienate or fuffer
legally tole- tffeir^llbnours to be impairea, beGau|e it ,is .not^Teally
^^^^.7* \ theirs' n appertains to the Nation uhlvefellv. ^nd thev^re
omnibus rebus —r. — ;^-^- — fr~--^ t-— -^-tr, ^-tt y >r^ — ?^~f^~ >*~j«^H5sft--!-ufc^ju<4^v'
wetuftasipfa ^H eltectually injured byTuca Tranlaclions, either becaufe
plurimum ' "^"""^ ' ' ^■' - ~ ^^ ' / " ' ' -^ thc
habet d'tgnila-
t^s : ita ut MaffalUnfes quorum fr^JlarAlJJima crediiur futffe Refpublica, laudeniur eo nomi-
ne quod gladio ad puniendas fontes uji fint eodem a condita Urbe, quo indicarent in minimii
^uoque r^biis antiqua confuetudims momenta fer<vanda. Frox'nne en'im ad Deum accedit
Antiquitas^ fetemitatis quadarti indagine. Grot, de Antiq, Reipub. Batav. in Prafat.
* Fide the Earl q{ Shaft ffiurfs Speech to the Parliament, 1672. C(^teris mortalthui
c H A p. V. jsDf n)t iiag. 87
4\ iMeoJiartconftlia^quldfthiconducereputent: Princlpum dl'verfam ejfe fartem^ quibus pns-
"i cipua rerum ad fummam dirigenda. Tacit. Annal. lib. a^, Si fama tua 'videtur neleffa'
ria, reSiam muneris iui adminijlrationem nan poteji condonare. Leffius de Ind. /. 2. c. j<,,
dub. 24. §.26.
'I the_nidignity really extends to them^ or becaufe the Go-
\\ 'vernment znd jiufbonTy is' thereupon weakned and prejudi-
!i( teST^which is the greatefl: of Civil detriments thai can be* ^
ctj hTa People, tho' ordinarily thty are not aware ^t^^lgg£ ^
tjl ~^s Prudence doth thus diftinguilh b^twlkt tlie Demea-
^1 nov 0^ private and puhlick PerfonS, fo doth Charity itfelf;
i for though the Gofpel precepts do oblige particular Perfons
li to bear Injuries and Contumelies with patience, and to fur-
Ij render even the Coat as well as the Cloak ; yet is not this
fo to be conflrued, as if even private Chrijiians were to
yield up their Civil Rights to every infolent one that would
incroach upon, and ufurp them, or that they were to de-'
p-ive themfelves . of thofe Reparations, which the Law
and Government affords them ; neither is it fo to be un-
derilood as- if the Civil Magiftrate in Chriftendcm might
not fecure himielf of that Obedience and Reverence,
which is due unto Dignity, but-^^^r the Sword in vain.
Xlir. This being the value which this Nation did al-
ways place upon the Right of the Flag^ the v/hich they ne-
ver did regard only as a CliSllltp and iRefpeCt, but as ^
piincipni Ceffimonp of tlje imqiicOiontible Eiffftt of
tW imtmx to tlje Dominioit aim ^upeiio^itp of
tl)e .aSiaC-Cnt ©6^05 acknowledged generally by all the ,
Neighbour States and Princes of Europe^ and muil be
paid and acknowledged by all Princes in the Worlds that
fhali be, or pafs on the fame.
The Etfe^s of this 'Dominion Univerfal^ or Sovereignty
which accrue to a Prince are thefe :
1. Not only the Regality of the fifliing for Pearl, Co- Joan^Fahiiu^
ral. Amber, ^c. but likewife the Advantage of all Fifh deDom.Maris^
Royal, as Whales, Sturgeon, ciff. and not only thofe, {'V^/'*^*
but alfo the diredion and difpofal of all other Fifh, ac- ^ " ^ ^^^'
cording as they ihall feem to deferve the regards of the
Publick, as in Spain, Portugal, &c. is ufed.
2. The prefer ibing of Laws and Rules for Navigation,
not only to his own Subjects, but unto others Strangers,
whether they be Princes of equal ftrength and dignity
with'himfeif, or any way inferior. Thus the Romans did
F 4 con£ne
88 0f tl^e jFlag. Book I.
confine the Carthaginians to equip out no Fleets; and for-
bade Antiochus to build any more than twelve Ships ofj
Grotiusdejure War : and if Tradition informs me right. Queen Eliza-^)
Belli. L2.C.2,. heth interdidled the then French King to build any othct)
^- 'S- or more Ships of War than what they then had, with-
out her leave firft obtained. The Athenians prohibited,
all Median Ships of War to come within their Seas, and:
prefcrib'd to the hacedamonians with what manner of Vef-
fcls they fhould fail. All Hiftories are full of fuch Pre-
cedents, which Princes 'have enaded either upon Agree*)
ments enforced upon the Conquered, or Capitulations be-:
twixt them and others (their equals or inferiors) for mutual
Conveniences.
joan.Palatius 3- The Powcr of impofing Caftom.s, Gabels, and^
ubifupra. Taxcs upon thofc that navigate in their Seas, or others
Julius Paucius ^^y\{^ fifh therein; v/hich they do upon feveral rightful
MDom. Maris Q]^ as protecHiing them from Pirates, and all other.
Acts or Holtilities, or airuting them with Lights and Sea-'
marks; for which advantages common Equity obligeth
13H.3/0/.14. thofe that reap benefit thereby, to repay it witli fome ac-i
5 Coh 63. knowledgment, which ought to be proportioned accord-;
ing to the favour received, and the Expence v;hich the;
Prince is at to continue it unto them. .^
4. As it is incumbent on a Prince duly to execute Jufi
ftice in his Kingdoms by Land, fo the Sea being his Ter-
ritory, it is requifite and a nece0ary effcdl of his Domini-
on, that he caufe Juftice to be adminiftred in cafe of Ma-
ritime Delinquencies. j
5. That in Cafe any Ships navigate in thofe Seas, they
{hall falute his floating Caftles, the Ships of War, by.
lowering the Top-fail^ ft r iking the Flag (thofe are the moft
ufual Courfes) in like mianner as they do his Forts upon
Land ; by which fort of SubmifTions they are put in re-
membrance, that they are come into a Territory wherein
they are to own a Sovereign Power and Jurifdidion, and
receive Protedlion from it.
Thefe are the proper Effects of a real and abfolute
Sovereignty over the Seas ; which how they are poffeiTed
hy x\\t Venetians^ this enfuing Account will declare.
The Gulph of Venice is nothing elfe but a large Bay
or Inlet of the Sea, which entring in betwixt two Lands,
and fevering them for many Miles continuance, in the
end
'
:hap.v. fiDf ti^eflag* 89
>nd receives a flop or interruption of further Paflage
w an oppofite Shore, which joins both the oppofite Shores
ogether : It is called the Gulph of Venice^ from the ♦
[^ity of Venice, fituate upon certain broken Iflands near
jnto the bottom thereof : it is alfo called the Adriatick
5ea, from the ancient City Adria^ lying not far diftant
1 rom the former ; from the Entrance thereof unto
fi:he Bottom it contains about fix hundred Italian Miles,
»Jkvhere it is broadeft it is an hundred and fixty Miles
J| Dver, in others but eighty, and in moft an hundred. The
I! South- Weft Shore is bounded with the Provinces of Tug-
ij lia and Abruzzo in the Kingdom of Naples •, the Marqui-
1 fate of Ancona and Romagnia in the Pope's State -, and
I the Marquifate of Trevifana in the Venetian State : The
I North- part of it, or Bottom, hath Fn«// for its bounds ;
i the North- Eaft is limited by Iftriay Dalmatia, Albania,
D and Epirus ; whereof Iftria doth not fo entirely belong ,^.g
to tht Vejjetians, but that the Emperor, as Arch-Duke ofjate by the
of Gratz^ doth poflefs divers Maritime Towns therein ; great Conduft
inBalmatia^ kving Zar a, Spalato and Cataro, they have and good For-
nothing of importance, the reft belonging to Ragufa and Q^^^^^lg^ y^^.
the Turks : In Albania and Epirus they poifefs nothing at j..q„i ^^^ q?.
all, it being entirely the Turks •, fo that he who {hall exa- ningjmarke,
mine the circuit of the Sea, which muft contain about theyhavenow
twelve hundred Miles, fliall find the Shores of the Vene^ |°,\fdlfn?oft
iian Signory, not to take up two hundred of them, omit- ^^ principal
ting feme Scattered Towns and difperfed Illands lying on parts of the
the Turkijh fide of the Adriatick Shore. ' Mona,
For the fecuring hereof from the depredations of Pi-
rates, and the pretences of divers potent Princes, as the
Pope, Emperor, King of Spain^ and the Great Turk,
who each of them have large Territories, lying thereup-
on ; alfo to caufe all Ships which navigate the fame to go
to Venice^ and there to pay Cuftom and other Duties, the
Republick maintains continually in adion a great number
of Ships, Gallies, and Galliots \ whereto alfo they add
more, as there may be occafion, whereof feme lie about
the bottom of the Gulph in Iftria, others about the
IQands of Dalmatia, to clear thofe parts of Pirates, who
have much infefted thofe Seas, and others, and thofe of
moft force, have their ftation in the Ifland of Corfu and
Standia j in the firft of which commonly refides the Cap-
tain
90 flDf tfte JFlaO;* Book I,
Baptijia Nani taifi of the Gulph^ whole Office is to feaire the Naviga^
hisHiftory of fJQ,^ ^f fj^^ Gulph^ not only from the Corfairs^ buttopro*
^f"f^''l' Vide, that neither the Gallies or Ships of the Pope or
448? King of Spain^ nor Great Turk do fo much as enter the
fame, without permifTion of the Signiory, and upori fueh'
conditions as beft pleafe them -, which they are fo care*
ful to effedl, that in the Year 1638 the Turkifh Fleet eiV*
tring the Gulph without Licence, was aflailed by the Ve^
fietian General, who funk divers of their VefTels, and com-
pelling the reft to fly into Valona^ he held them there bit
fieged, although the fame City and Port whereon it ftand^^
be under the Jurifdi6lion of the Grand Signior\ and not-
>» withftanding that a great and dangerous War was likely
to enfue thereupon betwixt the Grand Signior and the Rd^
puhlick^ becaufe the Venetian General being not content'
to have- chafed them into their own Ports, did more^
over fink their VefTels, and landing his Men flew di*
vers of their Mariners, who had efcaped his fury at Sea J
yet after that a very honourable Peace was concluded again
betwixt them, wherein amongft other Things it was a-
greed, That it fhould be lawful for the Venetians^ as of*
ten as any TurkiJJj VefTels did without their licence enter
the Gulph ^ to feize upon them by force, if they would not
otherwife obey: And that it fhould likewife be lawful fd!^
them, fo to do, within any Haven, or under any Fort of
the Grand Signiorh bordering on any part of the Venetian
Gulph: So jealous hath this Republick been in all times
to permit any to fail the Gulph^ that in the Year 1630'i^
J)e Dom. Ma- (as Palatius relates) Mar}\ Sifter to the King of Spainf
risy I. 2. c. 6. [^^ij^g efpoufed to the Emperor's Son Ferdinand^ King
of Hungary^ the Spaniards defigned to tranfport heP
/ from Naples in a Fleet of their own. The Venetians fuA"
pedled that they had an intention hereby to intrench uponj('
and privily to undermine, by this fpecious Precedent!,'
that Dominion of the Sea, which the Signiory had con*^
tinued inviolate 'Time out of mind', and that they took th
Opportunity when Venice was involved with aWar abroa
and infefted with the Plague at home, and therefore n
in a condition to oppofe tlieir Progrefs. The Spanijh A
bafTador acquainted the State, that his Mafler's Fie
was to convoy the Queen of Hungary^ being his Sift6^
' . from Naples to Triejie : The Duke repliedg That h'(!#
Majefly
:hap.v. j€)f ti^e flag* . 9^
Vlaiefty Ihould not pafs but in the Gallies of the Repub-
ick 5 the Spaniard repined thereat, pretending that they
vere ipfe<^ed with the Plague : The Senate being con-
bited, came to this Refolution, That the Sifter of his
Jatho'lick Majefly fhould not be tranfported to Triefte
^y other way, than by embarking in the Venetian Gal-
ies according to the ufual manner of the Gulph ; and
hat, if the AmbaffBdor would acquiefce therein, her Ma-
efty fhould be attended and ufed with all that refped and
deference which became her Quality : hut if Jhe proceed-
d any other way^ the Repuhlick zvould by force ajjert her
troper Rights^ and attack the Spanifli Navy as if they were de-
dared Enemies^ and in hojiile manner invaded them, Where-
jpon the Spaniard was compelled to defire the favour of
them to tranfport the Queen in their Gallies, which Jn-
tonio Pifani did perform with much State and Ceremony ;
and the Courtefy was acknowledged by folemn Thanks
from the Courts of the Emperor, and of Spain.
XIV. The Maritime Dominion by the Laws of Eng- Selden Man
land were always accounted the Four Seas -, fuch as are Clauf. I. 2. c,
born thereon are not Aliens^ and to be within them is to ^^- ^f*^^^^-
be within the Ligeance of the King and Realm of England. ''^^^ ^°^*
The Records in the days of Edward the Third and SeU. ibid, c
Henry the Fifth proclaim it, that thofe Kings and their 27,. Coke 4.
Progenitors had ever been Lords of the Sea ; and amongft i^P^-fi^-^^^^
thofe many great Inftances of proving the Sovereignty of
the fame, is that famous Record of Edward the Firfi and
Philip the Fair of prance ^ in which were the Procurators
of moft Nations bordering upon the Sea, throughout Eu-
rope., as the Genoefes^ Catalonian.^, Almaines^ Zelanders, iRo.Ah.^2%^
Hollander^., Friezelanders, Danes ^ and Norwygians^ befides Z^- ^*
others under the Dominion of the Roman German Empire^
where all jointly declare, CMt t\)t iSvUlffS Of England,
bp riffijc of m faiD jKingoom from time to time,
tolieieof there i-s no memo?taI to tfie eontratp, Ijatie
been (11 peaceable poffefilort cf t&e Sotiereign Lo^a-
Hiip of tlje mm of England, ana of t!je 3lfles toitfj-
\\\ tl)e fame, tDttlj poitier of mafeing ana eflaWifljtnB;
latDS, Statutes^ ana ^?oljibition0 of arms, ana
otfetiipisotljertDife furaiiljea tljan ^ercfjant-^en
ufe to be, ana of tafetng furetp, ana affo?amo: fafe-
BuacD in al( cafcg toDerc neea fljall require, ana of
P?aerin0
\
92 flDft^eflag* Book l:
ra. part of o^iietirto: all tljitms neccffarp fo? tfie mai!itntn(ng
the Record. ^^^^^ ^ j^jgfji; ^^^ cquitp, ampnB alf niaimec
people, ag Uidl of otljet Domimong as tljeic omn,
pafoito: tljmsl) ttje rata ©eas, ano tlje ©oaeceign
(Suato tijcccot;
And the Cafe By which it plainly appears, That the Kings of En^-
27 E/tz. in i^j^^ h^(^ l-}^gPj l3e£j^ jj^ peaceable pofifeflion of the faid Bor
Con/iM's^^" ;?2/V^/^« by immemorial Prefcription, that the Sovereignty
Leonard '^*par. belopgeth unto them, not becaufe they were Domini titn-
72. ufque rip£^ when they had both England and Normandt
The reafon of ^^^ ^^^^ Lords of both Shores , (for Edward theFirft at that
there^^s"mif- ^^^^ ^^^^ "°^ Normandy) but that it is infeparably appeii-
taken ;fcr the dant and annexed to the Kingdom of England^ our Kings
right unto the htmg fuperiour Lords of the faid Seas, by reafon (as the
Sea arifeth not y^^y Recqrd mentions) of the faid Kingdom ; and fince
feffion of die" ^^^^ ^^^ Sovereignty of the Sea did always appertain unto
Ihores ; for the Englijh King, not in any other Right than that of th
the Sea and X/;;^ti<?;/7 ^/ England ; no Prince or Republick ought or
\^a^c^^^' can doubt the Title by which our prefent Claim is dedu-
tories and by ^^^ > '^^^ ^^ right of Britannia, that the fame is challenged,
the laws of 'twas in that right the Romans held it.
England, the
Laftd is called the Realm, but the Sea the Dominion; and as the lofs of one Pro-
vince doth not infer that the Prince mull refign up the reft ; fo the lofs of the
Land Territory doth not by Concomitancy argue the lofs of the adjacent Seas. It
is no more necefTary that every Sea Town Ihould command an hundred MHes at Sia,
than that each City fhould command an hundred Miles by Land, Julius Paucius it
Domin. Maris Jdriatici,
The claim juilified Edward the Third and his Roj<:
"Nolle, though there are other reafons regarding the Ldh-
caftrian Line, which yield a Colour for the ufe of Pr^ri-
cullis in the Royal Banners of England ; yet as in reference
to the Maritime Dominion, Henry the Eighth did embel-
lifh his Navy Royal therewith, and ^een Elizabeth (lamp-
-ed it upon thofe Dollars which ihe defigned for the E4'
'Anno Domini India Trade, fignifying her power of fliutting up the Seas,
1600. ]f f[^g thought fit (as by a Port-cullis) with the Navj
Royal ; this Dominion of the Britifh Seas did authenticate
'Jnno Domhii the Proclamation of King James, ordaining the Fhmijh at
^009. London and Edinburgh to take Licence to fifh: Thisju-
jnno Dgmitti fti^cd the like Proclamation by King Charles I. and vtit-
1636. ranted
00
It
:hap.V. SDt ti)t ifla^. 93
inted by the Earl of Northumberland in his Naval Expe-
ition.
That Prefcription is valid againft the Claims of Sove- Will. Fulbeck's
»ian Princes cannot be denied, by any who regard the Pandeasoh\i<i
^hly Scripture^ Reafon^ the pra£fice and tranquillity of the ^^"^ cat^^'
jffVorld : and that true it is, the modern Butch have pre-
mded, if not dared, to challenge the Freedom to fifh in The King a-
he Britijh Seas, by Prefcription-, but it is likewife as gainasiry^^a
rue that Prefcription depends not upon the Corporeal but Byron. Bridge
he Civil PolTcfrion, and that is retained, if claim be but ^""^^ ■^'^' ^3>
nade fo often jjs to harr the Prefcription, the which hath
)een always made evident ; firil by frequent Medals, next
)y punifhing thofe that refufed it as Rebels, by guarding
if it, and laftly by giving Laws time out of mind on it;
vhich evidently proves that the civil Pofleffion is not re-
inquifhed •, and our Kings conflantly claiming the Domi-
nion of thq fame, none t\^Q pretending, all Nations ac-
vcowledgingit to be in them, and the fame never quefti-
)ned, 'till thofe modern Dutch (of yeflerday) arofe.
XV. The Importance of the Dominion of the Sea unto
;his Nation, is very great, for on that alone depends our
Security, our Wealth, our Glory •, from hence it is that
England hath a Right to all thofe Advantages and Emo-
luments, which the Venetian Republick draws from the
Adriatick Sea, where the Ships of the Grand Signior, of
the Emperor, King of Spain, and Pope pay Cuftoms, to
maintain thofe Fleets, which give Laws to them within
the Gulph ; 'tis hereby that the Englifh can fhut up or
open thefe Seas for Ships or Fleets to pafs or repafs them ;
whereto dueen Elizabeth had fo fpecial.a regard, that
when the King of Denmark and the Hanfiatick Towns
follicited her Majelly to permit them free paflage, they
tranfporting Corn into Spain ^ Ihe refufed them ; and when
a P rot eft ant Fleet of Hamburgers and others, had prefumed
to do {o, riotwithftanding her Prohibition, fhe caufed Vide foflea in
\itx/Navy Royal to feize, take, burn, and fpoil them. Cap. of Cu-
when they were pafled her Maritime Territory, within S^J^J^o. An-
^\^t 0^ Lisbon ', yielding this reafon for her juftification, ^^ 1598.'
That they not only relieved her Enemy with Provifions,
Wt i)ao pjefumptuouap wmz ufe of Det %zm^ unti}-
cut pbtaimns W Mn\ PermifOon m fo uoing :
'tis
94 lS>ttljt0aQ. Book I.
'tis from hence that the Crown of England can juftly de-
mand an account of any Ship or Ships occurring in thofe
Seas, what their Bufinefs, and what their Intentions are •
and prohibit any Prince or Republick to enter there with
potent Fleets, without pre-acquainting his Majelly, and
obtaining his Royal Permiflion ; without which Domi-
nion and Sovereignty, England can never live fecure on
fhore ; it being eafy for any Foreign Fleets to amufe us
with fpccious pretences, and in their paflage to invade
and furprife us. Thus while the 'Turk pretended to fail
for Malt a ^ he occafionally pofTeired himfelf of C^;7^^,'irt
Selden, lib. i. the Ifle of Candia., and after having tailed the fweet of
tap. II. that place, never forfook it, till he made himfelf Maftcr
of the whole. Many fuch Precedents do occur in Hi-
llory : And in fear of fuch Surprizal, the Athenians (being
Lords at Sea) did exclude the Per/tan Monarchs from
fending any Ships of War into any part of the ^gean,
Rbodian, Carpathian^ and Lydian Seas, and that
MeriGentil. which tends to the JVefi^ towards Athens -, the like Cau-
Hifp.Mvocat. tion was ufed by the Romans againft Antiochus and the
Mr Secretary^ Cf?r//6^^/;?//^«j ; and the T^urk prohibits all Nations, faving
Cooic^ Letter his VafTals, to enter the Black Sea or Pontus Euxinus^ anj'
to Sir VFill. alfo the Red Sea -, and 'tis by virtue and force of this
^of'^^^/^prii Right that the Britijb Nation can drive on their own Com-
^^* merce, navigate themfelves, and permit others fecurely
to trade with them. 'Tis true that the Dutch have pre-
fumed fome years (ince, to violate the fecurity of the Bri*
iifh Seas^ by the attacking the Allies of £;7^/<^^/i, not only
within the Britijb Seas^ but in her Harbours^ attempting
to purfue a French VefTel up almoft to London^ and haviJ
* The fight more than once * attacked the Spanijh Fleets in her Roads,
of the Dutch under the protedion of her Caftles, and that againft the
^^^^l^Jl^' Laws of Nations, ^rv^ the Peace of Por(s, in which for the
the Doavns, ^inie they feemed to cloud the Honour of the Nation -, but
1639. fatisfa6lion for Indignities of that nature, though Jlow^
Scilicet hoc yet are y?Yr^, and fhould fuch as thofe have been longer to-
faaum Hoi' lerated beloved Britannia muft become a proftitute, hf
landorum eft 2i Confederation of thofe States, or take Pafs-ports for her
contra jufiiti- Commerce ; but the Royal Martyr'* s Goodnefs was no
am omtiem pro ' v-tt jt-/^r j
eerto & contra longer to be trod on, his Heart and his Caufe were good,^,
reverentiajn and though thofc Unhappy Times (which were crooked
qua partibus jq
ivo-
:hap. V. mtt^t£H^. 95
whatfbever feemed flraight) did hinder the accom- ^ teniteriis
lilhment of his entire intention for Satisfamo?i -, Y^t ^f^,'' ^^f^''''*
lofe whom the juft God of Heaven was pleafed for a j^jj-p ^H]
me to permit as a pimifhment to this Nation to rule, cat. lib. i.
'\ not want in x.\\t fulfilling y for fo foon as he was cap.. 14.
jafcd to flay the fury of the htefiine Sword, their Hearts
^^okfire from xho(t flames that had formerly been kindled
i that Royal Bfeafty and having prepared a Fleet, in
-ler to the treating as Soldiers with Swords in their
J, Lands, they were in the like manner aflaulted in their
territories in the Downs fbut the Dutch found then
»j hat it was (though two for one) to aflault a Briiifh Lion ^nm Domini
II the mouth of his Den) intending, if poffible, to have ^552-
iftroyed the Englifh Power, but were fruftrated in their
rfign, being feverely beaten home to their own doors ;
id afterwards thofe that then had got the EnglifJj Sword
. their hands, begun to confider that the Vi^ory mud
\ purfued as a feafon fit to afiert their Antient Right and
'vereignty of the Sea, and then thofe People thinking
at the odds before was not enough to deftroy the Britifh
ket, they equipt out a Fleet greater and far more nu-
erous than the Englifh, under the Admirals, Van Trumps
e Wit, the two Evertfons and R^uyter ; but they fuf-
ted the fame Fate as their former, about fom^e thirty J««^ 2 and 3.
ur of their Ships on the Coaft of Flanders, burnt and ta-
!n, and the reft chafed home to their Ports •, and not About the 8
ng after followed the total defeat of their Naval Forces, ^^ ^^i- ^^53*
;companied with the death of Fan Trump by the Englifh,
ider the Admirals, Blake and Monk, who had funk and
red about thirty more of their Ships of War (no quarter
-ing given till the end of the Battle) fix Captains and
)out a thoufand Men were taken Prifoners, and about
JC thoufand flain. Of their Prefmnptions fince famongfl
:her things) in denying the Duty of the Flag, and what
jnifhment and check they have had for the fame, to
hat condition they have been reduced, and made to ac-
nowledge that Dominion and Superiority to that Crown
mcler which their Anceftors humbly * befought the ac- * Offered to
"ptance of the Sovereignty of the JSletherlands, might be ^"^^^ £-1'^^-
nncxed and proteded) is now frefh in our memories ; fo ^'f ' '^ '""^'f
Jgn ana ot \() great Importance is this Dominion and So- hJen une confi-
Vereignty deration fpeci*
96 SDt tf)t ipiag^
-c- s ^uelacoft' vereignty fignified by the Duty of the Flag in th Britijk
JciKcie, Ze-
lande, Frieze, & des Villes de PEfcIuZt ^ Ofiende en Flanders, a'vec les Royaunet dt
'vojire Majefte, emporte ^ foit t Empire de la Grande Mer Oceane ; ^ par confequtnt unt
ajjurance ^ Felicite perpetuelle pour les SubjeSis de 'vojire Sereniffime Majelle. J(^
^/oau's Supplement to Hollinjhsd, An. Dom, 1585. Vide Six Walter Ralegh , Uh.t,
cap, 2. §. 2. ^3.
CHAP.
[97]
CHAP. VI.
<aDf m Etgi^t of peffing o j ^ct?tng (if%i)ip^
I. fhatfuch Right is excepted in the
Latv of Dominion.
II. Whether the Ships of Nations
fwho are in IV ar at the fame timey
mdy be prejfed^ the danger being
equal.
III. Whether this Right extends to
Ships to fight y and vo marey or
gives a Foxver to trade.
IV. By the Laivs i?/"- England the
King mayfeize.
V. The reafon ivhy fuch a poiver
nvas <vejied in the Admiral.
VI. Thatfiich a Right of compelling
Men to ferve in Naval Expedi-
tions may be.
VII. 0hje8ions legal refuted.
VIII- Of the antieni punijhment of
deferters of the King^s fervice.
IX . Concerning the fe^veral Statutes
noiv in force touching Mariners
and Soldiers.
X. Whether it be lanjjfulfor a pri^
<vate Man to execute fujlice on
fuch asfiy and defert the fervice.
XI. Where a ge^ieral CommiJ/ion is
gi-ven to Men to execute Jufiice.
XII. Several Cafes touching the Ad-
tniralty and their furifdiSlion.
Ships or Boats found at Sea,
Royal Tify and Deodands belong
to the Admiralty.
I. rr^H E Civil Law^ though it can command nothing
Jl which the Law of Nature forbids, nor forbid what
it commands *, neverthelefs it may circumfcribe natural
Liberty, and prohibit what was naturally lawful : and
alfo by its force ant evert that very Dominion, which is
naturally to be acquired. Hence it is that Princes, by
the Law of Nations, may acquire a Right of ufe of things
that do belong to private Pgrfons ; for property hath noc
(as hath been faid) fwallowed up all that Right., which
rofe from the common flate of things ; becaufe as all Laws
are to be conftrued as near as polTible to the intention of
the Makers, fo we muft confider what was the mind of
thofe that firil: introduced fmgular Dominions : now the gnta, aut
Rules to conftrue that muft be near as pofTible to na- malo aut ne-
tural equity, and that in extreme necefiity that old right '^?i^''^V^"-
of ufmg things fhould revive, as if the things had remained ^^^
common, the fame Handing with the Intereft of all hu-
nian Conltitutions j and therefore in the Law of Domi-
G nion
no re retenta.
24;
lib. " '^
98 Of i^?effmg ^ijtpiS mn ^atinm. Book i.
nlon extreme NecefTity feems excepted. Hence it is that
the VelTels and Ships of what nature and nation ibever
•f F. de Navi- + that fhould be found riding in the Ports or Havens of
bus non excuf. any Prince or State, may be feized on, and employed
C./. I !.//>. 3. upon any fervice of that Sovereign that fhall feize the
^ni Pehus on ^^^^ beino; but a harmlefs utility, not diveiline the
the lame Law. v^'rT-r n r%
Owners or their Interdt or 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 PoiTeflbr is here prefTed with an;
equal necefTity, and by the fame argument is rather ob-
^idni enlm liged to the defence of his own Country than another,
(inquit Cice- whether by the Law of Nations the Ship ought to be d^-
^rlefe'trfmento ^^i"^^» ^^^^ ^^^^ doubted ; moft certain it may. Who
juototejl al' would not pluck a fhipwrackt Man from his plank, or
ieri communi- a wounded man from his Horfe, rather than fufFer himfelf
cet, in its qua ^q perifh ? To flight which is a fin, and to preferve, the
^larZfami ^ig^^ft ^f wifdom : befides, in the taking of the VelTd
Tion molejla? the right is not taken from the Owner, but only the ufe,
I. deOJic. I. which when the necefTity is over, there is a condition of
reftoring annexed tacitly to fuch a feizure.
And doubtlefs the fame Right remains to feize the Ships
cf JVar of any Nations, as well as thofe of private intereft,
the which may be employed as occafion fhall prefent :
* T)e Expedi- So the Grecians feiz'd * on Ships of all Nations that were
done Cyn. -j^ Ports, by the advice of Xenophon ; but in the time pi-Q-
vided food and wages to the Mariners.
III. Whether this Right extends fo far as to give
Princes a power to feize in order to trafHck may be fome
queftion -, certainly if the Traffick may be for fuch Com-
jc5^.3.»7.i6. modities, as Mails, Timber, Tar, Powder, Shot, or
12. other Commodities or Accoutrements of Arms, or Naval
Provifions of offence neceffary for the defence of the
Realm, it may be done (but then it is jufl, freight fhould
C3 'Ed. I. be paid) for what hurt can it do me to let another have
Mott. 77. in my Boat to pafs over the Ford, if he rewards me ? And
theExche- jf that be anfwered, the Owners are at no prejudice, for
^^^^' this is but a harmlefs utility.
12 £. 3. m I^- jBy t^^e l.aws of Blngland there is no quefllon, but
the Black- the King may feize, and it appears by very many antient
Book of the Records, that lie might do it, and it was one of the Arti-
Admiralty. . - •' • o
Ch AP.VL ^t^itf(m$ %i)ip^ am Watittm, gg
cles of Enquiry amongft others ; 3Item, fOlt Cnqill^ SC P- ^^.indzr:
jf^c% que font ntrcfteecs pour It ftmcz 5u Eop, ou <^ >^' ^- ^ « •
pour autce tatfoiuibie coufeper U& SDfticcrs Da Eo}', ^^'^: ^^;
oil u immwaU f nefajtfent ratceft, $ par leg ,;;? ^.^.J;
mtllts auaiUDiites Ji5efjs font emniene?, ^ tetamec i?^//. ^«»f.
/eg ^amm$ qui font oioonne? pout le ftrDice tiu
Eop ; $ fi retiacent, ?: en cas que |}Ottime foit eit-
Dite qui la nctoife I acted en fa iBef atreifee pent: le
fcrWce w Eop, $ ce ce fait conijttie pat itiK il per-
D?a fa Ji3ef fi I m pace mi Eop ou 5u Dault anmiraf^
$ pout ce quii a efte pliifleursf foig Cebatii en Mslt^
tcrre pour leg arrefteg ces I^Jefg, quant le Eo?
amanoe ©ergeantg o'arms, ou autre 90miftre0 poui*
iirreffer I3ef0 al oepg 5u Eop, $ leies Seigneurs De0
jRcfs font m\m ueiiant r^flmiral, $ aHeguent que
.cm Bets neftoient mpe arreOeeg, ojconne eftore
Ul tett]p0 QU EOP Richard le Primier a Grimfby per
iD5)f3 De plufieuriS ©eiffneuris au Eopalme, que
liinnt Ji5efs feront arreeeeg pour feti3ice nu Eor,
lae le Eoj> efcrfpta par feg JLettre? ^atenteg a i an--
niral a arreiler lefg 5i3efg plus ou woing a la Bou-
ante Hu Eop, $ felon ce qutl a befoin, $ ranmiral
:lcrip?a au Eop ou au Cljancelter a'angleterre it&
lomjSDes Befs ainfi arrefteeg afiemWement auec ks
lams it$ ©eign.eurjs $ Sgaiffres O'lcelleg, $ en tel
MS le Seigneur 5e la JSef ne la ©aiftre ne atenujont
m a ttire que la iSef neffoit mpe arreflee ne a ce nc
'CtOnt Op5> and that upon fuch Arrefts broken, the
Parties might be punifhed and fined.
Again, Inquiraturji arreftatus^ ad ferviendum Regi fre- Ds Ojfic Jd-
\it arreftum^ hujufmodi tranfgrejfor Jiat in gratia Regiafive ^^^^^- ^%li^
ddmiralli fui utrum voluerint comtnittei'e Carceribus manci- j^^-'^^^ q"'
)andum vel finem facer e^ in hac 'parte Ji arreftum hujufmodi
'^a^um manifeftum fuerit cognitum.
If the Admiral by the King's Command arrefts any The Black-
3hips for the King's Service, and he or his Lieutenant re- Book of the
:urn and certify the Arrefl:, or a Lift of the Ships arretted ^/^g ,g^'^
\^to Chancery^ no Matter or Owner of the Ships fo ar- i^";, '158.
retted fiiall be received to plead againft the Return, 15 /^. 2. f. 3;
put CEO que rasmiral $ fon tieutenant font Qc
rcco?ii,
Jitttit^ Inquirendum de omnibus Natjibus qii£ ad feriien-
ditm Domino Regi fuper mari ar reflate fuerint, ^ fojtea
G 2 Domini
100 ^tpttiiim^f^ip^iinh^avinm. Booki.
Domini, pojfejfores^ftve Magiftri dolo (^ fraude afervitio hu-
jufmodi fe ftihtraxerunt in deceptionem Domini Regis, qui
ft inde poftea indiElati fuerint, & convi^i fuper hoc, naves
fua; Domino Regi forisfa5f^ per ordinationem Domini Regis
Richard Primi ; ^ fi Domini, PoJfeJJores, ve I Magiftri hiu
jufmodi inde coram Domino Rege Q Cancellario fuo per alt-
quas allegationes fe aut naves htijufmodi excufare voluerint, fi
jidmir alius vel locu?n tenentes fui per Liter as fuas Patentes de
cirreflo hujufmodi fa5io fidem fecerint pleniorem^ Domini, Pof-
fejjores, aut Magiftri pradi^i nullo modo audiri deheant, feu
eis fides quovis modo adhiberi, eo quod Adrdrallus & locum
tenentes fui funt derecor do.
And if the Ship fo arrefled break the Arreft, and
Croke\ Arg. the Mafler or Owner thereof be indided and convicled
in na7npden\ BeiJaitt I'SOtllltSll by the Oath of twelve men, the Ship
Cafe, fol. 79, fhall be confifcate to the King, which power the Genml
F/V^^State rnaintains in all places where he has power, and the fame
Trials, Vol. I. feems to be provided for in the latter Claufe of \^R, 2.
Ca. 3. i-
IV. By King CtljelteBj his Bifhops and ISloUes in the
Spelmanni General Council of dEltfj^UI, Anno 1009. for the fetting
Concil, 520, out a Fleet every Year, and the punifhment of thofe who
521- hurt or fpoiled any Ship, or deferted the Service, efped-
ally if the King was prefent in the Expedition, amongft
others it was ena6led, 6"/ quis Navem in Reipub. Expe-
ditionem dejtgnatam vitiaverit^ damnum integre rejlituito ^
Pacem Regis violatam compenfato -, Jl verb ita prorfus cor-
ruperit, tU deinceps nihili habeatur, plenam luito injuriam li
iJfam praterea Majefiatem. So Sir Henry Spelman^s Ver-
fion out of the Saxon Copy renders it, but the antient
Copy hath it more largely.
Spelmnn. 528. JSfaves per fingulcs annos ob patriae defenftonem Cf? munittc-
expediiio Na- j2em praparentur, poflque SacrofanUum Pafcha cum cun^ts
•^^^''- utenfilibus competentibus fimul congregentur \ qua igitur etiatn
poena digni funt, qui Navium detrimentum in aliquibusper-
ficiunt ? No turn effe cupimus, quicunque aliquam ex Naviks
per quampiam inertiam vel incuriam, vel negligentiam corn'
pern \ d? tamen recuperabilis fit \ is Navis corruptelam 'vd
fra^uram ejufdem perfolidamprius recuperit, Regique deindSi
ea qua pro ejufdem munitionis froBurafibimet pertinent^ rit6
perfolvat,
Moft
Ch ap. VI. £)f is^^elTmg ^i)ip0 ana ^avimv§. i o i
Mod certain it is, that the Kings of Eitglajid have in all
Ages, by their IVrits and Patents^ commanded not only
the Admiral^ but the Wardens of the Cinque- P oris and
others, to arreft and provide Ships of War, and other
VefTels, and imprefs and provide Mafters of Ships, Sea-
men, Mariners, and all other neceffary Tackle, Anns,
^land Provifions for Ships, for the defence of the Sea and Rot.Scotiof
ii the Realm againfl foreign Enemies, or for tranfporting ^2\oij-^'^
''of Armies paying their Freight (if not bound thereto by then to 34.
Ij tenure) as well as to eledl and provide all forts of Soldiers^ htus ^ dorf.
Carpenters, and other Officers to be affiitants in their ^028.
feveral Expeditions.
But Filhermen or Mariners preflfed for the Service, are ^ ^^y'/^^^
not to be employed as Soldiers, but only as Mariners ; \n\car,\!
anlefs it be in cafes of great necelTity, or bound thereunto c, 5.
\ by Tenure, Cuftom, or Covenant.
V. Thereafon why the Admirals hzd fuch. power given ^°"^^ of Ad-
them, was becaufe they being fometimes called Capitanei^ SedbvlT^'
and Gubernatores Flotarum^ they had tlit ordering and
governing of the Ships of War, and the raifing and fitting
up fuch Ships for the Navies, as they thought fit ♦, other
times called Cuftodes Maritimarum partitm., their duty be-
ing to provide all Naval Provifions, as well to fupply the
King's Navies occafions, as to gratify any other of the
King's Friends, when diftrefs fliould conftrain them to
touch in his Ports, that his Subje6l:s might receive the Spelmanh
like retaliation again ; they were called Capitanei Nauta- GlolT. intltl
rum i^ Marinelloruniy as in reference to the deciding all Lambert Ar^
differences amongfl thofe in the King's Service, and pu- cheion tit. Ad-
nifhing of fuch as tranfgreffed ♦, and as the place was miraL
great, fo the power was large, efpecially in all things
belonging to the Navy-Royal •, in which they had the fu-
preme rule and government in all things belonging to it.
He fate formerly in the King's Houfe, and there kept his
Court, as the French Admirals do at this day at the
Marhle-Tahk^ in the King's Houfe at Paris.
VI. And although there feems no queflion but the King
may prefs Ships, yet there have been thofe who feem to ^
j doubt, if not to queftion, whether he may prefs Men to
! ferve •, for my own part I think he may, my Reafons are
:| thefe : It is lawful for every Man to addid: and yield up
G 3 hinifcU'
102 S;f}&?efftnsg)^tpjsanb2iparmer0, Booki.
himfelf to whom he pleafeth, as appears both out of the
Exodus i\. 6. Hebrew Law and Roman Law *, why then may not any
jvji. de Jure People, behig at their own difpofe, give up themfelves
prjon.^Servi to their Prince or Sovereign, fo as to transfer the right
?/7l ^^ commanding their aid and help, as often as need fhall
**'*'* require (it is not here inquired what may be prefumed in
a doubtful cafe, but what may be done in point of right)
rnoft certain fuch a power may well be, and that ground-
ed on great Reafon ; as if the Commonwealth fhould
happen to be invaded by fuch a one as feeks not only the
fubverfion of the Government, but the deftrudlion of the
People, and they can find no other way to preferve
themfelves, but that the fupreme Power fhould be vefted
with fuch a Prerogative, as to enforce or prefs the Inha-
bitants to ferve in Arms in the Defence of the fame, and
the contempt of which to punilh ; or if they fhould be
be opprefled with want, and that fupplies of Provifions
can no ways be had, but by compelling another by force
to exhibit the common OfBces of humanity to a Nation
in whofe Territories a Famine rages, that the Inhabitants
fhould on fuch extraordinary Occafions be compelled by
force to ferve in Arms.
And this Dominion may be obtained feveral v/ays, ei-
ther by a voluntary Refignation to a Conqueror, as they
of Capua to the Romans^ Qur Land^ the Temples of our
Gadsy all Divine and Humane things we yield up unto your
hands ^ O ye Confer ipt Fathers, Again, Freedom may be
granted to all by a Conqueror, except Mariners, which
ihould in Cafes of neceffity be excepted \ or that fome
Prince, who will not fufFer any Mariner to go out of his
Pominions, without fubjecling themfelves to fuch a rea-
fon able command, befides the Majority of Nations on
fuch grounds may abdicate from a part of them the en^
tire Freedom of that Member.
Nor are there examples of this kind wanting ; the Ger»
mans are every one Mailer of his own Houfe, but are aK
moft on every occafion fubjed to their Lords^ efpecially
Coh'i.hflit. in their Goods, Th& Irifh Cofherers., vt^hich were repren-
/;/. 358. dinations, when the Chief Lord and his Retinue came to
his Tenant's Houfe, they fed upon his Provifions till they
were fpent, all being folely at their Devotion. And as to
the
lacuiis.
Chap. VI. ©f p^cITtns ^Up& attB ^atimvg. 103
the Sea, the King of Britain may at this day reftrain Mer-
chants or Mariners to pafs out of the Reahn, without Li- z.E.i.Memh.
cence J and the various tenures that are introduced, ^ 8. i^/-/. p^z,
which is prefumed were fince the Conqueft^ were no other ^'^f 'J''"'^^*
\\ but the Will of the Conqueror -, for the right is not mea- ^^ i num'
'ijfured by the excellency of this or that form, but by the 44. Ro. Pat,
|j Will. '7. H. 6. Ra.
As to the impreffing of Seamen, it is flrange that ^/^JtheCaf
its Lawfulnefs fhould ever be called in Queftion by any ofBatef, in
II Perfon, who has read our Hiftory, or our Statute- Book. Lane's Re-
II The Crown has been in Poffefrion of it from Time im- ports,/©/. 4.
1' memorial : And if a new Race of People were this Day / ^{"r^^^^^*
Ijtofpring out of the Earth to poiTefs this Ifland •, if we '
^ may at the fame Time {iippofe them to unite under one
il Civil Polity, and to be conufant of the Necefilty of NavaF
1: Strength for their Defence ; the Power of imprefling
them for the Sea-Service would be implied in the executive
Part of their Government, let it's Conftitution be what it
might ; viz, limited Monarchy, Ariftocracy, or Demo-
i cracy, or ^ny compound of them, or fome of them.
But, as was hinted above, our Legiflature has frequently
maintained this Power, as undoubted Law. See 2. Ann,
ch. 6. concerning Protections to be granted to Appren-
tices to be bound to the Sea-Service. But more explicite
is a former Statute, viz. 2. and 3. P. & M. cJp. 16. by
which Watermen on the Thames who abfcond in PrefUng-
Time, and then return to row, are made liable to Im-
prifonment for two Weeks, and to be banifhed to row
upon the River by the Space of a Year and a Day. See
alfo 2. R. 2. ch, 4. and 5. Eliz, ch. 5. fe3i. 41, 43.
VII. And though it hath been conceived by fome, that
the King cannot prefs Men to ferve in his Wars, giving 1 hfi. 7K ^.
their Reafon, that of old he was to be ferved either by
thofe that held by tenure, thofe that covenanted by In-
denture to provide Men, or thofe who contradled with
the King's Officers for Wages and entered into Pay, or
thofe that were in Prifon for the King's Debts ; but that
only extended to thofe Wars that were by Land : not or^
word in all thofe A6ls, or Mufter Rolls^ relating in th&
ieaft to Mariners •, and yet what vail Fleets were in
ihofe Pays ? But on the other Hand it hath been always
G 4 accuilomed
,.
J04 flDf #?em'itg ^f)ip0 ann mavinm. Book
aceuftomed to prefs fuch fort of Men for the Naval Ex-
peditions. The ancient Records that mention fuch Per-
fons fubjefl to be prefs'd by Law is that of 29 £. 3. com»
* 2. Jpr. 49 monly called * Tbe Inqui/ilicn of ^eenhorough^ wherein
j:. 3. in the it was exprefsly in charge amongft others, to enquire of
^^?^\ ^ v^- ^^^^^ Mariners that were preflfed for the King's Service,
rally ^'12, %^] ^^^ dcfertcd the fame : So likewife by thofe other Articles
34. J,t. and tranflated by Roughton^ it is in exprefs charge to the Jury
fol. 62. Art. to prefent thofe that being preft to ferve brake the King*s
'°' ' Arrefl, in order to their Punifliment ; and in thofe days-
it^ was efleemed ah high offence : and the Oath which the
Jwj then took being impanelled, was this :
Cljig l)rre fee mp lo?a tJ)e ammtal, tfiat 31 Jona,
than Nafli fi)ail WW ailO ttiUp ZmMZ fO? OUt 1L0?5
tu lUniT, anD toelJ aiiD tnili> at tiM tixm tbert fecue
at t{j^0 Coutt of tlj' SBmicaltp, pjefcnt as mccfj^ agj
ijaDc acfeuoM£c&5 oi map Jja'oe bp lufa^mation of en?
of tttp jf elloius, cf all manet aiticieg o? €(ixun^
ftanceg t&at toiicijeu tlje Court ot tlje anmicatc anji
ILatu of tlje ©ca, tse tufiiclj fuall be grate to me at^
tljig time, aitu tfietenpoit ftooin or cljarffeo, anti
of alt ot&er tfiat map renetti in mp rninD, arin in
Ojall fo? notljlns lette, tljat is fo? to rap, fo? jfran-
tljiTe, lojsfljip, j^inrctien, ailtence, jFrienaSjip, loDe,
|)atret!5 eiisp, (enemitee, fo? njea of lof! of ©oon*
The Black mz^ fo? itOH otber cafe t^jat 31 fljall foe aoe, tfie
Book of the J^ingis Coimfeilg, mp felloajs, mine oton, toil! anD
Admiralty, frulp ijelE initljout ftaun 02 maiengpn, fa ®m me
/^^- *7. Ijelu at tfte ijolp come, ano ftp tw Boofe.
Lamb zV//^/- VIII. And as the enquiry was ftri6t, fo was the punifli-
Leg. Edo'vardi Hicnt very great : Ilem, qui fugiet a Domino vel focio fuo
139. pro timiditate belli vel mortis in condu5fione Heretochii fuiin
?3.C2r. 2. cap, expcdilione ?mvali vel terrfflri^ perdat omne quod fuum efl, (i
^' ^* ^7* fuam ipjius vitam^ mantis mitt at Dominus ad t err am quam ei
antea dederat.
IX. In the Service of the King two forts of perfoii^
were always capacitated to attend the Navy-Royal m their
Expeditions, the one a Salt-water Land-Soldier, the other
a' compleat Mariner or Sailer : It was a doubt, whether
fuch a Soldier, departing from the Service, were fubjeft
to any other punifliment than that of Martial La w^h'ich
c;in at no time be executed in England, but when thrlCing's
Standard is in the Field i thereupon it was provided, 7M'
^chap.vi. flDfpteflfMtg^lJtlpgJattlifll^attttetg^ 105
f any Soldier being no Captain imjnediately retained with 7^-7 (^p* i •
\\he Kingy which /ball be in wages and retained^ or take any §• ^'
^^)reft to ferve the King upon the Sea^ or upon the Land be- ^°' ^''* '^'*
'^' ond the Sea^ depart out cf the King's fervice without licence
'' ^fhis Captain^ that jiich departing be taken ^ deemed^ and ad-
'dged Felony. And that all the Jujiices in every Shire of ^H. 2.cap.^:
,,n gland, where any fuch Offender be taken ^ have power to §- 2.
\muire of the [aid offences ^ and the fame to hear and deter ^
Inine as they do and may do of Felony^ &c. expreffed in the
King^s Commiffwn to them made^ as though the fame offences
\ were done in the fame Shire, And alfo that the departing of
^uch Soldiers^ and alfo their Retainers^ if it be traverfed^
he tried in the fame Shire where they are for fuch a Caufe ar^
nfted and arraigned. The Juftices have here a concurrent
power to enquire and try, but it does not fliut out the So-
vereign Courts, or hinder but the King may try them
upon a Commiffion of Oyer and Terminer, or Goal-de-
livery. It was a doubt conceived by fome of the late
Judges, if a Man had run from his Colours at Ply mouthy
and afterwards was taken in Middlefe^^ and committed to
Newgate, whether after a Bill is found in Middlefex, the
Juftices of Goal-delivery for Newgate could try him *, but
it was ruled more than once by the greater number of the
Judges, they might ; and fo have the Precedents been
always fince the making of this Statute, and upon the like
Reafon, that a Man that takes a fecond Wife, hath by the
Statute the fame diredlions to be tried in the fame Shire
where he is taken ; yet if taken in Middlefex, was always
tried at the Old-Baily in London.
Thefe Statutes were made, becaufe the Statute of 1 8 //.
6. cap, 19. was looked upon not to be fufficient, for that
Adt had reference only to the ancient Tenures, and thofe
that covenanted with the King to provide Soldiers •, where-
upon a queftion afterwards arifmg, whether feveral who
having then taken preft Money to ferve the §ueen againft ^^ eUz.
the Rebels in Ireland,, and had departed and withdrawn
themfelves from the Service, fhould be within thofe Sta-
tutes, in regard fome doubt feemed to arife on the fame •, Coke 6. part,
but.it v/as refolved by all the Judges of England,, that/^^-^/*
thofe two Statutes of 7 H, 7. Cap. i. and 3 H, 8. Cap, 5. ^^^^^ ^^^^^^
are all one in efFedl, and were perpetual Adls : the great ed in his A-
doubt and queftion^ whether the Statute cf 18H. 6. bridgment.
io6 0f Pzeflftng ^f^ip$ anD ^avimvs. Book i.
C^/). 19. did extend to Mariners and Gunners fervingonthe
Seas, and taking Wages of the King, was in Parliament
not long before cleared in thefe Words : That tbefaidSia-
tute made in the eighteenth Year of the Reign of H. 6. in al
pains ^ forfeitures^ and other things^ did^ doth^ and bereaf-
ter fhall extend as well to all and every Mariner and Gun-
ner, having taken, or who hereafter fJjall take preji or wa^es
ioferve the ^een's Majefiy, her Heirs and Succejfors, to all
intents and purpofes^ as the fame did, or doth unto Soldiers^
any diverfities of opinion^ doubt, matter, or thing to the contrary
thereof notwithflanding : But now Mariners deferting the
Sea-fervice are particularly within the Provifion of i^Csr.
Article 17. 2. Cap, 9. which hath made the Offence Death *, but the
Trial is by a Court Martial. .
And Land-Soldiers, though in Time of Peace, are like-
wife within the Statute of 7 Hen. 7. Cap. i. and 3 Hen. 8.
' Cap, 5. if they take any preft Money to ferve the King
upon the Sea, or upon the Land, or beyond the Sea, and
ihall defert the Service -, but that is inquirable according
to the Courfe of the Common-Law, where if the party
Ihall depart without Licence, he fliall fuffer Death, with-
out benefit of the Clergy.
Nonfotis duct- X- If f^ch Perfons (hall fo defert the Service, it hath
bus alii/quepo been a Queftion, whether a private Perfon, under the fame
tentibus inna- obedience meeting with fuch a Deferter, might not put
%f^^o^' i^lTm ^^^ ^^ ^^^^^ ' ^^ ^^^^ ^^" conceived that he might, and
Jgendi propcfi- the a6l is lawful, and the party that flays him hath a true
turn, fed cuique Right before God, as impunity before Men: But that is
^volenti ^ licet j-q ]qq undcrftood partly by the Words, and partly by the
^ homjium eft j^^j-^gj. ^f j-j^g L^^ . p^j. if ^^ L^w gives indulgence to
J^eiplltc^'^^ Paflion, it takes away human Punifhment, and not the
malts comma- Fault; as in cafe an Husband kills an Adulterous Wife or
rj€ri,i^ puhli- j-j^e Adulterer * in the Ad -, moft certain it is a Provoca-
^on!i!^!iLs ^^^^^ ^^ ^^^ \(ig\i^^ nature, and will juftify the Slayer;
■promoSr?. "^ But if the Law refpedl the Danger of future Evil, by dc^
Fide Grotium lay of Punifhment, it is conceived to grant right and pub-
/. 2. c. 10. Y\c\!* power to a private Man : fo that he is not then in the
2^t^Z ^^-^^y «f - P"--'^ Man.
Clergy, and fo ^^
it was ruPd
by all the Judges m B. R. M. 23 Car. 2. in the Cafe of one found fpecially at
Surrey Aflizes before Mr Juftice Tnvi/den, who flew the Adulterer in the very A6t. Fi^
xAuguft. dg Ciiit. Dei citatum. C, quiJunqus caufa. 23. ja. 8.
;h AP. VI. ^f pitmns ^¥V$ an^ ^avimvg. 107
And upon that very Reafon Queen Elizabeth denied the ^«. 25 Elix
onftituting of a Conjiable, for the Trial of Sir Francis ^"^ -t.;//.74.^.
^hrake, who ftruck off the Head of Doughty, in fartibus
^ -nnfmarinis.
XL Hence it is that every Man hath a Licence given
m to oppofe force againft plundering, and pillaging
loldiers : and the next the fubfequent Law about Defer-
1 L-rs faith, Let all men know they have a power given them Cod. Jujlln,
% ijrainft publick. Robbers and Beferters that run from their Co- tit- quando li-
\!iurs, and all are Minijiers of Revenge Jar the quiet of all-, ceatumcm^ue.
k 0 this purpofe is that of Tertullian., againft Tray tors or pub-
ick Enemies every Man is a Soldier : And herein differs
he right of killing of Exiles and Outlaws, or thofe whom
hey call Banditoes^ from thofe kind of Laws-, becaufe there It was in force
)roceeds a fpecial Sentence, the Judgment of Banilliment in England tiW
)r Outlawry being promulgated ; but here a general E- ^f^the^Re^gn^
iid, the Fact being evident, obtains the force of a Judg- oi Ed. 3.
■nent or Sentence pronounced : the Judgment of the lat- Co. Liu. 128.
:er muft be according to the Civil Law^ which yet re- ^- *^^*i-{*
nains flill in force, as to the Trial of fuch Deferters ; 1/^,.^^//^]
vhich Impunity for fuch killing feems allowed of at this ^.'j. 4.
day by that Law.
XII. Cafes relating to the Jurifdiiflion of the Admi-
ralty as to Matters fueable there, or at the Common Law.
The Trial fhall be vyhere the Original Contract is made, Tryal cohere
which if in England^ tho' the fubfequent Matter to be done the Original
be upon the Sea, the Trial fhall be at the Common; Law. ^fj^^^^^ «•
But if the contrad, and what is to be done all of it is be- '^'-^"*
yond Sea, it cannot be tried at Law here, but in the Ad-
miralty ; but if part be to be done here and part beyond
Sea, fo as it is mixed, then it fhall be tried at Law. As
an Adlion upon the Cafe upon a Policy of AfTurance made
at London^ that a Ship fhall fail from Melcomb Regis in
the County of Dcrfet to Abville in France^ fafely, i^c.
And the Plaintiff declared that the Ship in failing towards
Ahville^ viz. in the River of Soame in France^ was arrefl-
ed by the King of France., Sec. and the IfTue was whether
the Ship was fo arrefled or not ; the Trial was by Ni/i
Prius in London, and refolved to be well brought, though
'twas objeded that this IfTue arifmg merely from a Place
out of the Realm, could not be tried at Law, for the Af-
fumpfit being at London was the crround and foundation
of
1
io8 flDf PttMn^ ^l^ipsf ana ^avintvs. b o o k i.
of the A6lion, and therefore Ihall be tried here, for other,
wife it could not be tried at all. Cited in Dowdale's Caft
6 Rep, 47. ^. GodhoU ^6. and 204.
And fo if the Con trad be made at Land, tho' beyond
Sea, the Trial fhall be at Law, tho' what is to be done,
be all of it beyond Sea, by laying the Contraifl made at a
Place in England^ as in Bourdeaiix apud IJlingtvn in Cm,
Middle/ex. So is the Cafe of Slaney and Clohery againft
Cotton^ where the PlantifF fued the Defendant in the Ai-
mralty Court upon a Promife made in Barbary^ to fail
from Sirborona in Barbary to Rkumpta in Brazil, &c,
upon fuggeftion that the Contract was made in London-s
Prohibition was granted : for, by J ones, the performance of
the confideration does not give the A6lion without the
Contra6t, and this was made at Land^ tho' beyond the
Seas, which may be fuppofed to be done in a place in
England. 2. Rolls Rep. 486. See Tucker 2iV\d Cuff's Cafe in
the fame Book 492. and 497. and 2 Brow. 10. 11.
Matters be- A Contract was made at Newcaftle that a Ship Ihould
yond Sea not ^^jj ^^^^ 7'armouth to Amfterdanu Debt was brought upon
ljjfgj.JQj.CQjjjf, this Contradl, in the Court of iVi?ze?f(^/^ ; adjudged, that
the Adtion would not lie there, being a limitted Jurif.
didion, which fhall not have conufance of any matters
done in partibus tranfmarinis, but only the Courts at Wefi-
minfter, March's Rep. ^.
Pr^emmlre (or If onc libel in the Court of Admiralty for a thing
fuing in the donc Upon the Land, and it appeareth upon the Libel,
Admiralty, that the thing was done upon the Land, and they not-
withftanding that hold Plea of it, a Pr^munire lyeth up-
on it ; but if the fame do not appear within the Libel,
then it is not within the ig of i^. 2. c. 5. and 15 of R,
2. f. 3. but a Prohibition fhall only iffue, 2 Leon. 183.
Admiralty The Admiralty hath J urifdidion of i^/^/2;^;;?. 'Trefdian
hath Jurifdic- againft Jones 2. Keeble ^61,
tion of F/ot- ^ j^.^^^j^ 5l^ip ^^s broken by a great Tempeft in a
Superfedeas to ^^^^^ ^^ ^^^ Sea, Infra Corpus Comitatus de Dorfet -, the
the Admiral- Sailors upon pretence that the Goods in the Ship were
ty* bona peritura, procured a Comm.ifTion of Sale out of the
Admiralty-Court to {t\\ them ; and the true Owners to
^ prevent fuch Sale, brought a Super fedeas ; and upon fhe^-
ing the Libel to the Court, a Prohibition was granted.
(i.^ Becaufe the Caufe of Ad;iori accrvied infra Corpus
Co^nitat^
-]j
:hap.vi. s>t mt^iH ^¥v^ attt> ^avintm 109
:omitaius. (2.) Becaufe the Sale of the Goods was good,
s bona peritura. Ctilmer ag2iini\: Brand. 2 Sid, 81.
One having taken a Ship as Prize which had bona peri- Unjuft Sen*
ra entred into a Recognizance with fureties before the ^^^^^. ^^ ^^®
idges delegate to bring the Money raifed by Sale of the ^hweM^y
;oods in the Admiralty- Court before fuch a day, if they have original
1 ipon a Plaint there depending did not adjudge the Ship Conufance is
\nd Goods to be lawful Prize, which they adjudged law- "° S^M^^^°^
t r 1 • • J 1 r^ 1 a Prohibition,
ul Prize ; and after at another time cited the Owner be-
bre the Judges of the Admiralty, and for his not coming
md bringing the Money at the day, they threatned to fue
fj Execution againft the Bail or Sureties who were Mer-
:hants of London^ Proliibition was prayed ; for by their
nrft Judgment or Sentence, their Recognizance was dif-
charged, and they ought not by Colour of this to endan-
ger the Credit of Men of Reputation -, but the Court
would not grant a Prohibition, for they faid an unjufl ^^Z^. 1-2.
Sentence of the Admiralty, in a Caufe of which they Becks, v.
have Original Conufance, is not a Caufe of Prohibition. Chelfcoke.
As if Tythes which in verity are paid, are found not paid
in the Spiritual Court, yet a Prohibition lies not, and
here the Judges Delegate have fole Power upon this Re-
cognizance, to make Execution or defeat it.
The Corporation of Triniiy-Houfe^ under pretence of Suit there for
Letters Patents from Queen Elizabeth for the ballafting of not ^allafting
all Ships within the Bridge of London and the Sea, and ^ ^^*
that no Ship (hould take Ballafl of any other but of them,
fued one Borcman (a Dutch Man) in the Admiralty for
taking Ballafl: of another, within the Place aforefaid. Per
Curiam the Place being alledged to be at Ratcliffe^ a Pro-
hibition was granted-, refolved that the Letters Patents zBrovonLiil
were void, for that thereby a Charge . is raifed upon the
fubjecl for the private gain of the Houfe, for they would
not ballafl: a Ship under 2 d. per Ton,
In the Cafe of Sir Richard Hawkins^ Vice- Admiral of 13 c^?. 51.
the County of Bevon^ who was profecuted in the Star-
Chamber^ for abetting and comforting Hull, and other no-
torious Pirates. It was there refolved that, by the Com-
tnoa Law the Admirals ought not to meddle with any /
thing done within the Realm, but only v/ith. things done
upon the Sea j and alfo by the Statute of 13 R. 2. c, 5. ^
It
no M pjeffing ®Up& ana ^ar mem b o o k i.
It was likewife refolved, that the faid Statutes are to
be intended to hold Plea, and not of a power to awanl
Execution ; for the Judge of the Admiralty notwithftand-
ing thefe Statutes may do Execution within the Body
of the County.
13 Co. 53. The Court of Admiralty is not a Court of Record
becaufe they proceed there according to the Civil Law.
Where one admits the Jurifdidlion of the Admiralty by
pleading there ; no Prohibition fhall be granted. Jenninn
Lord Ray- againft Audley^ 2 Brow, -^o, 12 Rep. jj. Therefore on
mond, 247. Motion for a Prohibition in a Suit for Seamen's Wages,
there the Suggeftion was, that the Court below refufed to
allow the Defendant's Allegation ; that the Place where
the Plaintiffs entitled themfelves, was not a Port of De-
li very : This is no Foundation for a Prohibition \ if any
thing it mull be an Appeal.
Suit tliere for Cradock bought divers Things within the Body of the
Gontraaapon Countv, which concerned the furnifhing a Ship, as Cor-
LandProhibi- ^^g^^ 'y^^ ^j-^^ Vender fued him in the Admiralty Court;
a Prohibition was granted, 2 Brow. 37. Cradock's Cafe,
Owen 122, ^Keeble ^^2. Merryweatherdi^xm^Mountfori
Note^ No Appeal from the Admiralty before a Defini-
tive Sentence. Lord Raymond^ 1248.
I. LeiK 243. The Defendant being Mafter of a Ship, of which the
^^^•^3^5-*73* Plaintiff was Owner, the Ship was taken by Pirates upon
2 Saun!' 260 ^^^ ^^^' ^^^ ^^ redeem himfelf and the Ship he con-
zL^v, 25. trailed with the Pirate to pay him 50/. and pawned his
I Fen. 173, Perfon for it -, the Pirate carried him to the Ille of Scil-
3°^- /y, and there he paid it with Money borrowed, and gave
Cro.F./^z'is-, -^^"^ ^^^ ^^^ Money at his Return*, after the Redemption
both of the Ship atid himfelf he fued in the Admiralty for
the 50 /. and had a Sentence for it, and thereupon a Pro-
hibition to the Admiralty was prayed but denied, becaufe
the Original Caufe began upon the Sea, and whatever fol-
lov/ed was but accefibry and confequential. Ha7'd. i8^j>
Prohibition was granted to the Admiralty Court on th*
22d and 23d Ca. 2. cap. 26. Se5i. 11. in Suit there for
the Forfeit of a Ship on felling Wares in Ireland without
breaking Bulk, being put into Ireland from America^ by
contrary Winds, this being triable in the Plantations or
any
Ih AP.vi. <s>( l^jcffmg %f)ip$ antj ^atintvg. 1 1 1
erjiy Court of Record in JVeJiminfter, Pidgeon con, Trent ^
toi Keeble640, 647, 651. {Vide Lihrum.)
A Mafter of a Ship agreed with certain Merchants '
)ncerning a Voyage, and received Orders from them to
y in Provifions of Meat and Drink, and to provide
fjlariners, 6fr. and after the Voyage was finiihed^ the
lerchants refufed to pay the Mafter of the Ship, what
ley had agreed for, upon which he libell'd againft them.
. the Admiralty ; Prohibition was granted upon die Sta-
ite of 2 i^. 2. cap. 3. the Contradb being upon Land, and
snied the Cafe, Hill, 8. Ca. i. Cro. 296. which faith Prohibition
lat when a Thing is in its Nature Maritime, as in the ^°" "^t lie
afes of Mariners Wages, the Admiralty Ihall have the Wa^s."""' ■
.'onufance of it. JVoodward2L^2im^BomJhan^ Raymond^,
.id 3 Levinz. 60, C^^d* againft Cr etcher y &c. 2 Vent, 181.
If a Contrad or Obligation be made upon the Sea, Cortraa not
et if it be not for a Caufe Marine, the Suit upon this, ^^^rine made
lall be at Common-Laiv^ not in the Admiralty, Hob, 1 1. ^' ^^*
If the Original Contrad be made at Sea, on a Marine Contraa at
.aufe, and after reduced into Writing at Land, the Com- L^nd '^^^^ ^^
wn-Law not Admiralty ftiall have the Conufance. Hob^
9. 212. Palmer 2,^3^n^ Pope,
If a Charter-Party be made in England to do certain
hings in divers Places upon the Sea, tho' that no A6fc is
0 be done in England^ but all upon the Sea, yet no Suit
hall be in the Admiralty for Non -performance of the Agree-
nent •, for the Contradt is the Original and is out of their Common
furifdidion, and where part is triable at Common-Law^ Law pre-
md part in the Admiralty ; the Common-Law fhall be
^referred. Maldonado and ^laney i Roll. Abr. 532. 533.
A Contradt laid to be made infra fluxum Q reflumm Lord Ray:
Maris ^ (^c, is well enough laid to. give the Admiralty a mona 1453,
Jurifdidion : It was upon the high Seas, when the Water
was at High- Water-Mark ; and it might be at Land
when the Water was at Low- Water-Mark. In that Cafe
there is Divifum Imperium between the Common- Law and
Admiralty Jurifdidion. Prohibition
It was moved for a Prohibition to the Admiralty, be- J^j'y ^^'I'^o-
caufe the Libel was to execute a Sentence of the Alcade ceeding to
^vhich is the Admiralty 2X Malaga in Spain,, upon^ thing execute an
done within a Port there, and after a Rule for a Prohi- ^"^e^^ocutory
bition nift, 'twas moved that no Prohibition flaould be, for pXig^Ad.^
tho' miialty.
•'J
SDf p?effmg ®Up^ attb ^aviixm. fiooKi
tho' this Court will not execute the Sentences of
any
pi 12. Raym.
473-
Refcous and
Contempt
triable there.
Goods taken
by Piracy,
triable there
tho' fold at
Land.
Teh. 13^,
173. Hard.
183. 1. Si J.
320, 367.
2 Saun. 260.
2 Lev. 25.
I F(n. 173.
Foreign Court, in as much that it is governed by a
diftincl Law, yet thefe of the Admiralty may, ahd this
is their ufe to do fo, for this that all the Admiralty Court!
in Europe proceed by the fame Law, viz. the CiviLLaw
and TFibrel and IViat^s Cafe 5. ^t?. was cited, to be ad-
judged accordingly. But upon Reading the Libel in the
Principal Cafe, it appears, that the Sentence was not!
Definitive, but Interlocutory concerning a Matter that
founds as an Adtion upon the Cafe, and no Sum fct;
and alfo the Alcade is not as an Admiralty there, and
for this a Prohibition was granted. Jurado and Gregot)^
I. Sid. 418, I. Levinz. 267. i. Vent. 32. and 2. Kethh
512. 610.
Motion for a Prohibition to the Admiralty.^ for that they
libelPd againft one for refcuing a Ship, and taking away
the Sails from one that was executing the Procefs of
the Court, againft the faid Ship, and for that in the pre-
fence of the Judge and Face of the Court, he aflaulted
and beat one, and fpake many opprobrious Words
againft him. Now feeing that thefe Matters were deter-
minable at Law, the Ship being infra Corpus Comitatui^
and they could not adjudge damages to the Party, t)r
Fine or Lnprifon, a Prohibition was prayed, but denied,
for they may punifli one that refifts the procefs of their
Court, and may fine and imprifon for a contempt
tho' they are no Court of Record, but if they fhould
proceed to give Damages, they would grant a Prohibition
quoad that. Sparkes^ ^c. againft Martyn. i. Vent, i,
The fame Dodlrine Lord Raymond''^ Reports, 446. and
I. Vent, is there cited.
A Prohibition prayed to the yf(^«2/r^//y, where there was
a Libel for a Ship taken by Pirates, and carried to 'Turn
and there fold, for that it did not appertain to xkiz Court
to try the Property of the Ship being fold upon Land.
Curia in regard it was taken by Pirates, it is originally
within the Admiral Jurifdidlion, and fo continues* not-
withftanding the Sale afterwards upon the Land. Other-
wife where the Ship is taken by Enemies, for that alters
the Property. Contrary to my Lord Hobart in the SpaniP
AmbalTador's Cafe 78. i. Vent, 308. 3. Cro. 68s»
If
If Ships or Boats are found on the Sea or upon the Sh'ps found
^oaft, without any Living Creature therein, and no ^^ ^f^ l^'^-^'^S
Tan claiming the lame withm a Year and D^y, the ^j^
inder formerly ufed to have one Moiety, and the Prince
he other Moiety, but now 'tis left to the difcretion of
''^' he Admiral, what the finder fhall have for his Trav-il,
^'S^haro^es, Danger. And if the finder conceal fuch Goods,
^'^'vhether belonging to the Ship, as Anchors, Timber or
^^l»ther Goods, hefhall not only lofe his Part, but be fined
^'l,t the Will and Pleafure of the Admiral.
•I If Whales or other regal Fifii, Ships or Boats with- J^nyal Flfh
5')ut any Living thing in them, be driven by force oi Deodands,
'•Wind or Waves only, to any Coaft or Land, then all
\ ioth belong to the Admiral, Lex Meraxt. 120.
See more of this Matter, 4, Inft. 134, i£c. of the Court
^{Admiralty, i. Roll. Ahr. 528, l£c. Title Admiralty,
% After Sentence in the Admiralty Court for the feizing Trover aftef
of a Ship, Trover and Converfion at Law will not lie, ^entence will
Bedke contra T^hynwhitt^ Laws of the Sea, 425.
Hutchinfon killed one Colfon in Portugal^ and was ac- Acquittal of
quitted there of the Murder, the Exemplification of ^^"^^.^^^^^ ^.^^
which Acquittal he produced under the Great Seal of a Foreierf ^"
that Kingdom, which by the Opinion of all the Judges Kingdom, he
was fuch an Acquittal by xheir Law, that he could not be ihall not be
tried here again. medagaia
The Admiralty hath not Jurifdidlion o^JVrecke. 5. Rep,
106. 2. Infi, 167. 4. Inft. 154. 15. R.2, c. 3.
Cafe upon the Statutes, 13. R. i.e. 5. 15. R. 2. c. 3. and 9^^^ Tor Aie-
2. H. /^. c. II. for fueing in the Admiralty for matters done ^^fjjj^raltv
upon the Land, and declared that the Plaintiff was go- foj. matters
ing from the Port of London., with his Ship laden with at Land.
Merchandizes, and that the Defendant brought a Suit
in the Admiralty to flay the Ship, till caution fhould be
given, that fhe fhould not traffick with Infidels, within
the Limits of the Charter of the Eaft- India Company ;
and that they procured the Ship to be arrefted by Pro-
cefs of the Admiralty., and to be detained, by which the
Plaintiff lofl the Profit of his Voyage •, upon not guilty
pleaded, a Special Verdid was found, viz. they found
the Charter of the Eaft- India Company of 13. Car. 2. by
which they are incorporated, and had the fole Trade
to the Eaft^IndisSy granted to them witb a Prohibition
H to
3 14 iSDf KleagttCjS fig aUtauce equal Book l
to all others to trafHck with Infidels there upon pain of
Forfeiture of Ship and Goods, and that the Plaintiff had
prepared a Ship and Goods to go to the Eaft- Indies to
TrafHck with Infidels within the Limits of the Eqft^India
Company, upon this they petitioned the King in Council
to flay the Ship, where an Order was made to the ^dmi-
ralty to ftay the Ship by their Procefs, which ifTued ac-
cordingly, and the Ship was (laid, prout^ C^c. all which
was done by the Defendants as Agents of the Company,
and they as Agents paid the Fees of the Profecution,
and if guilty. Damages for the Plaintiff in duplo 1500/.
fo upon Arraignment judgment for the Plaintiff, and oa
Error afiirmed. Sands againft Sir Jojtas Child and
4.7«/?. 138. others. 3. Levinz 351. A like Cafe i. Vent, 47. Home
againft Ivie. *.
C H A P. vir.
SDf J^omiin'on eftabltj|)el> 6^ Creattc^ of ai^
Umtt in (general*
I. Of Treaties their ends.
II. Of the matters conftderahle in
the making of them^ and hcvj
the overtures are made.
III. Of the 'varicui Sort of Treat iesy
and firji of thofe by inier'vieiu.
IV. Of the pretexts generally made
to obtain fuch Treaties.
V. Of Princes equal, the honour is to
be paid by him in poffefjion.
VI. Of Treaties by Princes unequal.
VII. Of Treaties fecret and open.
VIII. Of Things requifitefor Prin-
ces during fuch Treaties,
IX. Of Places proper for Treaties.
X- Princes nvhere obliged to treat
perfcnally, and njoher^ not.
XI. Deputies f their demeanor gene-
rally ccnfJered in Treaties.
XII. Of tht Clanfes generally to he
conftdered in Treaties general and
\ particular.
XIII. Of the nature of Treaties ge-
nerally confidered as to their endsy
and cohere they determine by the
Death or Difpoffejfion of a Prince^
andivhere not,
XIV. Of Treaties to njohat end, ani
ho^M they ha've been flrengthma
in England.
XV. Of the Caufes ordinary pro*
curing fuch Leagues.
XVI. Of Leagues by nioay of Me-
diation tending to the procuring
of a general Peace <vjith War-
ranty,
XVII. Confideralions on Leaguti.
defenji^e and offenfive, and oftht^
Ad'vantages and Difad'vantagei
thereof in reference to the Eflatt
confederate.
XV III. Leagues deferfive confruei,
offenfi-vc in fai'our of the oppreft.
XIX. CQUtribution, the difficulty in
regulatini
njadsd hy one another , and of Pro-
te^ion granted a People 'vchen op~
prejfed, ^wh ether Aid to fuch may
be cofijijient ntjith a Leagu-'
XXV. Whether the Oath tnken fcr
the Perfcrmanct of the League h^
per/onaly or hivds the Succajfor,
and of the Interpretation of the
fame.
regulatmg the fame to the fatlf
faSlion of the Per Jons intereffed. .
XX. Of Leagues concluded hy Depu-
ties, and the Difficulties ifed to
' 'delay t by ivhich defgns may Je-
er etly he carried on.
XXI. Conjideration had on Leagues
made for carrying on fame parti-
cular Enterpriz,e
XXII. Of the Caufes that generally ; XXVI. Of Leagues taade ^vith
tccafon a Rupture.
i XXII I. Of the Obligation on Con-
|j federates in reference to mutual
[^ Succours.
XXIV. Of Aid granted to particu-
Princes tvhcn dri'ven out of theif
Countries, imhether they remain
<vaUd and frm.
XXVII. Whether Leagues may he
entred into by Chrijfian Princes
lar and common Allies ijjhen in- ' ^th Infidels.
I. fir\ R E AT I E S are occafioned by a wife and pru-*-
X dent Care of infpedling the Motions of Neigh-
bours and of their Affairs, the v;hich are generally re^
duced to thefe Three Heads, upon the Confiderations,
1. How a Prince fliould govern himfelf with his
Neighbours.
2. In gaining a Credit among them, and to have
a part in their Dehberations.
3. Is the main, which is to pierce into his Neigh-
bours defigns -, for thofe Centers being difco-
vered, a Prince eafily knows how to draw his
Lines.
II. In Treaties, the firft thing to be confidered is the
manner of making the O^^erture •, and therefore it may
fo happen, that of tv/o Princes who are Enemies, the one
will not feek unto the other for an accord •, therefore the
general Medium is, that the motion be propounded by
fome greater Prince, or by fome Neighbour that is a
Friend to both, and fometimes the Minifters of two ^ .
rinces meeting * accidentally, if they be employed, yet ^^^d a Steward
propound an Accommodation. When a Prince or State is of the Duke
exafperated with another, and having gotten an Advan- "^^ ^'aniua
tage, will often refufe to treat any where but in his own "J^^'^'^S^t
v^ountry, nor that unlefs nril fought to by a fubmiinve ,./^, to con-
dole in their
Matters names for the Death of the Marquefs of Forcat, made an overture for the
Treaty of Peace betwixt Cbarlss the Eighth and Lewis Sforfe.
H 2 > Requeft,^
1 1 6 flDf Kleagttes hv aiitatt te c^ttai* b ook i.
+ March 8. Requefl, as by Letter, &c. So they of f Holland and
^^>3- t^yor- Weft-Friezelnnd confidering the miferable Diftrefs and
States fub! incorrigible Diforders of their People, did fubmit thus to
{cvihtd Her- confefs their Errors.
hert Van
.Beaumont, and afterwards by a Letter from the States General praying a Neuter place,
April 30. 1653. then by a Petition j§ "June after. Leo ab Ailzmay fol. 817, 818, 825.
III. Treaties are a6led either by the interview of
Princes, or by perfons fufiiciently commiflionated for that
purpofe. "^
Thofe that are by interview, have been often difap-
proved, though often pradlifed ; but that depends rather
on the Eflate of Affairs, and the conformity and diverfity
of Honours, and manner of living of the Princes and their
People, than of the interview : that of Lewis the Eleventh
with Duke Charles of Burgundy^ and of the fame King
with Edward the Fourth oi England pail fairly : And in all
fuch Treaties they govern themfelves in reference to their
fupplies, according to the Confidence which they repofe
\jugurtha in each other. |l But thofe interviews of Princes have ever
taken by his y^^^^s. obferved dangerous ; for Princes meafure theit
l^^^B^c'chus Q!^^^^^y> not by the extent of their Dominions, but by the
and delivered abfolutenefs of their Power : So that he that is Supreme
to the Ro- and Independant in his own Country, counteth himfelf
mum\ Charles equal to any other Prince, how great foever. Perchance
%^Fran^^\t fomc youthful Kings may difport and folace themfelves
a perfonai in one another's Company, whilfl: yet Pleafure is all the
Treaty with elevation of their Souls ; but when once they grow k^-
the^Dukeof fj^je ^f ^\^^\^ own Greatnefs, (a Leflbn they will quickl^
Se Duke ^^^^"' ^"^ ^^^^ "^^^^ want Teachers) then emulation will
though'a * be betwixt them, becaufe at their interview they cannot
Soyereiga fo go in Equipage, but one will ftill be the foremoft, e!^
^M^^^'ih ^^^^ ^^^ Perfon will be more proper, or Carriage more
Phf.Womims' Court-like, or Attendance more Accomplifhed, or Attire
ifb.^. cap. 10. more Fafhionable, or fomething will either be or be con-
ceived to be more Majeflical in one than the other : And
Corrivals in Honour count themfelves eclipfed by every
beam of State which fhineth from their Competitor j
therefore fome hold the befl way to keep great Princes to-
ther is to keep them afunder, accommodating their
Bufinefs by their Ambafliidors, left the meeting of their
own Perfons part their Affections, as it fell out between
King
I j Chap. VII. jflDf TLta^ut^ bv SiUiamt eqaaL ui 17
* f Kino* Richard of England and Philip of France y and Richard Hove'
Maximilian the Firft and Zfw/J the Twelfth. ^^J ^'« ^^'^'^- 1 *
IV. It is prefumed, that the Perfonal Treaties of^'^' ^^^•
Princes are not for matters fmall and trivial ; therefore it
is an undoubted Maxim, That as Jealoufies may heincreafed
amongfi Neighbours^ by reafon of fuch perfonal interviews^
fo they muft find out fame apparent and important pretext^
which being made known and publifoed to remove the jea-
loufies of their Neighbours^ they jnay then under fuch colour
and Jhadow^ treat the mofi fecret of their Affairs. So Pope
Clement the Seventh under the borrowed Pretext of Ti,
general Peace and League againft the I'urksy Cwhich
founded pleafingly in the Ears of all Princes) at Marfeilles
concluded the Marriage of his Niece with Henry the
Second of France,
V. But if of two Princes, the one goes home unto the
other, he is bound to do him the Honour of his Houfe 5 '
And if the Prince be inferior to him, he commonly fends
forth fome of the principal Officers of his Court to receive
him V but if he be his equal in Quality, as being both
Kings, although there be fome debate betwixt them for
precedence, if he come firfl to the place where the
Treaty is to be made, he muft go in Perfon and not by
Proxy.
In the interview that was between Lewis the Twelfth ^;V^ jEmiliu\
and Ferdinand of Arragon at Savona (which then belonged Paulm\ Hi-
unro the French King) Levns the Twelfth at the approach ^^°^y ^^
^i Ferdinand\Gd\\f^ (before he could land,) enter'd into ^^^^^^^^i^"
it, accompanied only with his Guards to teftify his con- fuppiyof the
fidence, and thereby to afiure King Ferdinand of that fame, of the
which he had promifed he fhould find in him ; and at ^i^l^^^r^
their going to Land, King Lewis left the Right-hand to /^^^;,/ after-*
Ferdinand^ who lodged in the Caftle, as the moft honour- ^yards Le^is
able Place, and himfelf went to the Bijhoprick, XII. upon the
VL By the Laws of Trealies^ when two Princes unequal failure of iffaa
in Quality parley, the inferior is to come firft to the place ^l^r/es tH
of congrefs there to attend the Greater ; yet the contrary 8th.
hath been moft commonly obferved upon this very rea-
fon, that he that is lefs ought firft to wait on the Greater,
and from thence go to the place appointed for the Parley 5
and this was particularly done at the interview of Popq
|i 3 Qlem.ek^.
Clement the Seventh and King Francis the Firft, although
that Marfeilks were in the King's Subjedlion.
VII. Again, Treaties by thofe that are fufficiently com,
iniffionated for that purpofe, are to acfl either fecretly or
openly. Treaties clofe or fecret are ufually made in or-
der to the compkating or fettling of Leagues between
two Piinces or States, fometimes by entertaining him with
whom they treat under fuch a Pretext, to deceive him in
the end ; at other times to furprize an Enemy, or to aft
fure a Prince of two Enemies, treating with one fecretly,
the other openly, and the like. Thefe are the ordinary
f So W^r/V^r- Policies among Princes, and wherewith the wifcft of
^^^" TI. ^^^ Kings t, and the moft knowing Councils have been de-
ine'^twice^a. reived and abufed even to accept of a Treaty, when at the
bu.ld H. 8. fi-rne time the Propoler hath no other thoughts than to be-
propofed a tray them : the Spaniards have been fam.ous at thefe Projects,
third, which pvlcmorable was that defign of theirs to interrupt the League
would reiVn which was ready to be made between the Princes of //^/y
up the Impe- and Pope Clement the Seventh, after the Battle of ?a-
rial Crown to <uia^ propounding unto the Pope to treat and accord,
him; the Re- the which not only hindred the Leamie, and flaid the
itnttoE-ridavJ preparations or War whicn he might make, but alio cauled
and approved, hin> to difcharge the Tioops which he had drawn unto
H. 8. is to him for his fafety. So Bourbon^ General of the Impe-
^°^^!,^^t^^^'"^ rial Army, entertained the Pope with an accord, whilft
cefve the ^^^ Army marched to the Walls of Rome,
Crown, and
Maximilianis to acrompany him to Rome to receive the laft Right of the Imperial Digfli*
ty, and having given him the Invellitureof Milan in fie do more ImpsnaU, then in poffef.
iion of the French^ and in enmity with the Hcufe of Aujlria : a!l things being thus coo-
duded, and //. 8. having paid the Monies agreed on, and made ready his preparations.
Charles the Fifth and Grandfon of Maximilian^ is a rub in this League, v.' ho muft be
firft removed j thereupon the old Fox the Emperor fends a Propofal, that he would
come firft into the Neiherlatds to take orF his Grandfon, which while agitating, he
llrikes up a fecret Peace with the French King, and fo H. 8. is betrayed a third till\p
^Tid the agreement refufed to be complied with, Coiton Treaty. of Amity^ foL 99.
VIII. Hence it is, that during Treaties, be they open
.or fecret, the Princes or States concerned in them, muft
watch the more carefully, have the diligenter Eye, and
by all the ways imaginable reinforce their ilrength ; not
pnly to fruflrate their Enemies of all hopes to furprize
.them, but to the end the Confideration of their Force
»n4
ghap-vil m%ta$ut& bv antance zmau 119
and Opulency may put them in a pofture to obtain Con-
ditions of more Advantage. Bcfides, it is an undeniable
Maxim, that no treaty mufl be held firm, valid, and con-'
eluded, unlefs it be ratified by that Prince or State with
whom the fame is made, efpecially if it be with a Prince
whom they detain Prifoner -, for by f Law the force by ^ ^^^^^^^^^^^
the which he hath been conitramed to promile, will at ^^^^^^^ ^^, ^,.
leaft difpenfe with him fo far as to rc-advife, if not to nerequipotuit,
break. ^-T %ff'
pojtto Imfsrh pri'vatui & capfus ipfe in ahenam fvenijfet poteftatem ? Curio in Caefar, to
rhofe that had been the Soldiers of Domitius, fo fpake, iib. \i. de Bella Ci'vili. Vide
ii,ot,Ub.z.cap. 13. §. 18. Vo^e Clement the Seventh refufed to ratify the Treaty
with Dnke Ftrrara which he made when a Prifoner, faying, That it was a dilhoncur-
able thino- for a Man in Life to ratify a matter done in his Name when dead, noc
confiftcnt with his Honour ncr Intereft. So Francis the Firft excufed himfelf to ratify
the Treaty of Madrid, upon the inhumanity done to him by the permiffion of Charles
the Fifth, they being extorted from him, nor did they take place, though the iCing
-left his Children as Hoflages.
IX. Again, as in the Parlies of Princes, the place where
the Interview is to be made is very confiderable j fo is it;
in Treaties v/hich are tranladed by EmbafTadors, Agents,
Envoys, i£c. if it be to compleat a Peace, or fettle a
League, icmuft not'be too far from the Confederates, but
at feme convenient place, to the end they may have the
more fpeedy Anfwers from their Principals ; h\^t then the
firft is always to be in fome place Neuter, or fometimes
upon the Confines of Kingdoms 5 for that it is nei-
ther reafonable or honourable to treat a Peace in the Ter«.
ritory of one's Enemy ; but the latter touching Leagues
may be any where. That of Edward the Fourth with
Lewis the Eleventh was in the Territories of the Duke of
Burgundy^ but that was perfonal : And that between
France and Spain^ concluded by Cardinal Marazine, and
Don Lnvis Mendez de Haro, Plenipotentiaries of both
Crowns, was in the Ifle of Pheafants in the River Bidajfoa j<[,rve?nhf ?,
upon the Confines of the Pirenaan Mountains. And the 1659,
laft great Treaty which begun at Cologne in the year 1673.
under the Mediation of Swede land^ in order to put an
end to that War wherein moft of the CrownM Heads of
Europe were involved, was look'd upon as a place proper i
but rhe feizing of Prince JVilliam of Furftemberg^ and the
i^l^ing of forty thoufand Crow.ns out of the Waggons of
H 4 thQ
120 flDf jdtasue^ ht 3llltancc equal* Book i,^
the French Embafiador in a Neutral City, broke off that
Js^egotiatioa ; and though the violence committed on this
Prince, by the Eipperor'^ Minifters, and the Injury done
to the French King, gave ground to fear, that there wa$
ro Peace to be expe&d, and that the Mod Chrifti^i
King would never content to the renewing of the Treaty^
unlefs reparations were firil made for thofe two injuries;
Neverrhelefs, at,the inftance of the King of England (whofe
Mediation was generally embraced by all the Princes cotk
cerned in that War) and at the folicitation of the Bifhop
o^ Sirasberg^ who pubhckly declared he preferred the Ad-
vantages of Peace before the Liberty of his own BrothePa^
J^bneguen was pitch*d upon as a place neuter and proper,
for a Treaty, and thereupon the French King, 17 Ftbrm-
?7, 1675, named for that Effe(5l the Duke of Filry^ Moiw^
ficur Colbert, and the Count D*Avaux, his EmbaifadoFs,'
X. Embajjddcrs having received Orders to treat, the
Prince, to whom fuch are fent, is not by the Law, p|.
Treaties bound to treat perfonaliy, but only to depute,
fome of his Council for that Effeft », the Reafon is, for
that the Dignity of a Prince may receive fome detriment
which cannot be maintained amidfl: the Conteftations
which happen in Conferences.
Julius Ferre- But if an Ambaffador be deputed as Lieutenant to a
tus de Legatts pj-j^ce, there indeed fuch CommiRloner is not bound to
/e7o"um"£de ^^^^^ ^^^ ^^^^ ^^^^ ^^^ Priuce himfelf : and fo it was where
U oficiQ, the Bifhop of Gurgia was deputed by the Emperor to Pope
Julius the Second : the Pope commiflionated three Car-
dinals to treat with him ; but the Bifhop having notice in
what quality he was like to be received, commiiTionated
three Gentlemen to confer with them, excufing himfelf
upon other Affairs \ which afterwards v^as explained, that
. he came not as a fingle Embaffador, but as a Lieutenant
monly^n the*^^ ^l^^ Emperor, in the which Quality he had been re-
inftruaions ceived at Rome by the Pope •, Yet it hath fo happened,
provided for that Embaffadors, if not admitted to a perfonal Treaty,
the EmbaiTa- j^^^^ refufed the Difcharge of their Commiffion ; and fo
point if the ^^^ Chancellor Marvel^ Embaffador from the French
matter Ihould King, who delivered his Meffage to Philip Duke o£
come into de- Burgundy, was interrupted by Charles the Duke's Son. Jf
p}^', ^ . ^ am Jent, fa id he, not to treat with you,, hut with your, "B^k:
lib i. " ther \ and Mr Wai^^, who being commiflionated by Queen
pliz^hih
* HAP.viL £)£ KLeagueg bv SUiiance eaaai* 12 1
^ lizaheth to Philip King of Spain ^ would by no means
t i^it himfeif to be turned over * to the Sfantjh Privy- * CaMnE-
)uncil, but would either have Audience from the King i^sA/o/.tso.
.mfelf, or would return without it. 5 4 -3
XI. The Deputies being aflembled, their Seats are con-
.'tl derabie ; they having no power to quit any thing of the
i'^ank which their Mafters ought to hold : and by the Law
i^ f Treaties the firft place is at the head or end of the
VahU^ (if there be one) the fecond is the firft on the
^ighthand, and the third is the firft on the left hand of
^^ lim that is at the end : and if there be many Deputies to
me Prince, they ufually fit at one fide, to have the more
acility to confer together, if it be needful.
XII. The EmbafTadors having concluded and fettled g^ julim the
heir Places, their CommilTions of each fide are to be in- Second did,
■peded and confidered : and therefore it is an undoubted who finding
Vlaxim, That when they are general or ambiguous, the ^imfelf preft
Principals have no will to conclude ; or if they are fair withL^w/nL
ind plain, yet there may be wanting power to conclude ; fent Cardinal
3r having power to conclude, it may be with a Salvo, till F^"a/,^nd Bi^
they are ratified. fhopof W/^
' to Panj, but
never arine4 them with Power to conclude: this was to fruHrate the important
inftance of the Coniiftcry.
The principal Claufes generally are,
1. Either for Peace or Truce.
2. For Reftitution of that which they pretend hath
' b'^en unjuftly taken away.
3> For the CelTion of Rights.
4. For Limits and Bounds, the which if they can-
not regulate, they put them in fufpence, or elfe
they make fome Adt which may interrupt the prc-
fcription of him which holds them.
5. For paffage, with Confignation of Hoftage.
6. For Forts or Caftles for AfTurances.
7. For an Offenfive and Defenfive League.
8. For Neutrality.
In the managing of all which, and of all other matters
ptoper for fuch Treaties, a fpecial regard muft be had
«ot to move for a Perfon odious to him with whom the
Jr^aty is made, ngr to yield to the firft demands though
•; " ■ never
\
never fojuft, bat refift them Itoutly ; but if danger i
imminent, then it is a certain Maxim, No^ ^ojludy fo tnum'\
to negotiate with advantage^ as ta provide for fafety,
XIII. Treaties which are made with our Neighbour
as Friends, are called Treaties of Alliances^ equal or ««,
The Leagues ^?^^^^- The equal is either of fingle Friendlhip only, [^
between the the entertainment of Traffick, or for aid and fuccour^
Crown of that of fuccour is for the Befeiijive or Offenfive^ and fome.
sTr are ^^^^^ ^^^ ^^^^' ^^^^ ^^ againft all Men, or againft fome
commonly certain Princes and Republicks ; and their Alliances ait
betweenKings contradled, either from Efiate to Efiaie^ and for the Pre.
and Kings, fervation of the Eflates of each other (in which cafe by
Realm ^and ^^^^ death of the Prince they may not be interrupted) or
Man and Man ^Ife they arc contraded betwixt Prince and Prince, and
of their Sub- then the death of one fufpends till a new Treaty hath con-
jea:s,andhave farmed it, unlefs there is a time certain prefcribed by die
been"lookM ^^^'-'^O'^ ^^ ^^e which the Alliance mnft continue after the
upon to be the death of the Prince-, or elfe they are made from an EfiaU
iirmeft of Al- to a Prince^ where the death of the Prince does likewiff,
liances. Phi. jf not diflblve, yet at leaft fufpend till a new Treaty ol'
STT And* Confirmation of the precedents, although by the Lav4:of
in the very England, Rex non fnoritur.
Alliance with
France concluded July f r- The firfl Article is in thefe words : ^hat there he an mi-
fv Br fal and perpetual^ true, and ftncere Feace and Amity hetnvcen the MoJ] Chrifian Kini
and the Kina of Great-Britain, their Heirs and Succejfon, and het<wetn the Kingilom,
States, andSubje^s of both, Scz. Fide 9 E. 4. 2 a. The League then made with
the Scots, and likewife between Edv^ard the Fourth and the Duke of Bur^unilj,
J'hil. Comin. /. 3. f. 6.
- XIV. Sometimes Alliances are contracted for an Enter-
prize and for one effect only, in the part in which the
•Allies are interefled, and fuch are generally called Leagues^
f Rot. Pat. 4. which in England have been fometimes confirmed by M
ji. <j. num. 4. ^y Parliament *.
Coke 4. Infit. L(»ag;ues are fuch Ao;reements that are made by the
Grot, dejure Command of the fiipreme Power, and whereby the whole
6e//i ^ pads Nation is made liable to the Wrath of God, if they in-
/. 2.^.15. §.3. fringe it.
All Leagues or Safecondu6ls are, or ought to be of Re*
cord, that is they ought to be inrolled in the Chance^f»
to the end the Subjed: may know, who are in AmitJ
■ with the King, and who not, who are Enemies and can
five no A6lion here, and who are in League and may
^^ve Aftions Perfonal here, 4/??/?. 152.
Leagues commonly are Offenftve^ but in effed they
' d to attempt againll fome one, and in the bottom are
^ dged Articles of Secrecy for the Enterprize : and fuch
las that of Camhray againil the Venetians^ in which they
!-owed the pretext of Religion and the Peace of Chri- Treaty of
-dom. Camhray, the
Confederates
' which were Pope Julius the Second, the Emperor-, Kings of France^ Spain, and
nagon. Anno 1558. Hde Hiilory of the Republick of Venice tfol. 87.
XV. The ordinary caufes for which "Princes and Re- Sedutmrnpa-
iiUicks make Leagues^ are either to facilitate a Conquefl, {^po/r^ ^d^vtm
I s that that was made between Lewis the Twelfth and ^f^^l^^f ^^J^^
'Ferdinand of Arragon^ for the Realm of Naples-, or x.o omni aquitate
dance the Forces of one that is more mighty, in hin- ahhorret Gxq-
lering him that he grow not greater ; but Arms ought ^f^^ aejure ^
lottobe taken to diminifh fuch a Neighbour's power, i\[c\^.C\i.
or that fear is uncertain ; but prudent Leagues may be
nade for diminifhino; their Power.
The Englifo made a League to fuccour the Hollanders^
lOt only to balance the growing opulency of the Spanifh
Monarchy, bur likewife to increafe her own by the Alli-
ance of the D'/Jch. 9uid feq^uitiir ?
XVI. Again, Leagues may be made for the procu-
ring or a gijueral peace by way of Mediation of their
Neighbours in War, and fuch v/as the Treaty of Nimc-
giicn mediated by the King of England^ and concluded
Aug, 10. 1678. between the Ambafladors and Plenipo-
tentiaries of his mod Chridian Majefty on the one part,
and the Ambailadors and Plenipotentiaries of the Lords
States General of the United Provinces on the other part ;
Aich was'alfo the League of Union propounded by his
late facred Majefty King Charles II. and afterwards con-
cluded betwixt him and the States General of the United
Provinces^ for an efficacious Mediation of Peace between
France and Spain^ his facred Majefty of Britain having a
Profpecl to what afterwards happened, and of a War,
wherein nioft inevitably would be involved moft of the
Princes in Chrifiendom •, to the efFedting of which Peace,
{iis Majefty and the States General dW obtain a promife
from
124 5©{Xeartuejs bv alliance mmi Book J^
from the French King to the Dutch ^ to lay down Ai
on condition the Spaniards would formally and folemr
by a Treaty of Peace, quit to him all thofe Places aii
Forts, together with the Chaftellenies, and their Appurl'
tenances, which they by force of Arms had taken in,
fortified in the then lad year's Expedition ; or, otherwifi
that the Spaniard be brought to transfer to the FrenckA
their remainder in the Dutchy of Lux ember g {ox to the
County 0^ Burgundy) together with Camhray and Qawkn^
Jis^ Douay^ Ayre^ St Omers, Bergue^ St PFijioXj Furm
' and Lynk^ with the Bailiwicks, Chaftellenies, and all ,0,
league of U- ther their dependencies •, and the French King to reftoreto
liion between the Spaniard all Places, Territories, which they have^j
his Majefty of ^.rms taken fince their entrance into Flanders^ on condi-
and^the ^States ^^^^ ^^^^ ^^^ States General do reciprocally undertake and
General oU\iQ fecurc to the French^ to prevail with the Spaniard to con-
United Ne- fent to the fame Conditions, which once effeded would
'fa^'^^^^^'^h"' ^^^ ^^^ hoped) initiate the tranquillity and be the intereft
Ba'Tue JanM ^^^ ^"^7 ^^ ^^^ ^^^ Warring Crowns, but of all other
Jum i£6S. the Princes of Chriftendom. To the effecting of whicli
there were feveral Articles agreed -, and likewife it was
agreed, that if a peace fhould happen to be made, tis
Majefty and the States General fhould become Warrantees,
and a place left for any other Prince or State to come
into the fame, who fhould think it their Intereft to keep
the Peace of Chriftendom undifturbed, and to .reftore the
Low-Countries to their tranquillity : there was provifioa
made likewife by the fame, for the Forces of each of the
Warrantees to be ufed again ft thofe that fhould break and
violate the fame, obliging them to ceafe the violence, and
repair the Party injured.
The -^nfwer XVII. A Befenftve League^ which hath no other bene-
of the Ambaf- fit but a necefTary defence, and in the which mean Eftates
fador from ace in a manner equally intereffed, laft ufually longer than
Privernum to ^^ Offcnfive League^ which is voluntary, and from the
Si bonamd'ede- ^hich Cither of the Confederates will eafily part when he
ritis tff^damh^^^ more iutcrcft : So as in balancing the intereft of the
cf perpetuam, onc and the other, he that fhall find himfelf accompanied
'^.^^''^;''^ ^'''"^with diftruft, and an opinion to be irreconcilable to the
Li'vMk^*.zi, common Enemy, generally proves the moft firm in the
League^
Tte
I r A p. VII. jsDf %tmm& fi^ mimct tami 125
The fFi/dom, Courage^ Means ^ and Conftancy of the
F nee or State is to be confidered ; fo likewife the di^
(\ ce of the Places^ as well in regard of thofe with whom
fljr unite, as of thofe againft whom they make the
I igues.
XVIII. Leagues having no other limitation, hut the end Pontius Samnis
D he Enterprize for which they are made, have admitted ^^^^^ reftitmi-
iVrny large debates in cafes of accident : For inftance, If [^e ^omam
"a Enemy fhould take the Country, for the defence where- and the Au-
c the Leagues was m.ade, the Queftion has been whe- thor of the
"^,^r the Confederates be bound to afTift him who hath loft ^^^^^^ y^^^^"
^ n the Recovery ; fome have held, that the Def en/we Tum''%\th%
1. not extend fo far : notwithftanding if there were no eji qukquidex
"Heaty, which had concerned this Conqueft, yet it would A^-?^^ rupto
, i m more reafonable to comprehend the Recovery in the ^'""^^'^^ '* ^°^.
\i enfive, if it be general. For as its end is to preferve Tath/Zqui-
,'j ; Ally in his State, and to attain it, the Forces muft not bufcmque Dih
'I^J ly remain in the Country of the Ally to attend the Ene- cordi fuit juhi-
J'jr; but after denunciation and other ads of Hof^iWty ^' "^^^ ^^ '^"■^:
'! ne by the Enemy, they muft enter into his Country, "^^^f^ ^^//^^ol '
li the end to prevent him or divert him from 2Lttempting fuiji corditam
rj y thing againft the Jlly^ the Offenjive being judged by f^^p^^-^^ a Ro-
^ t aggrejjion, and not by that which follows ; by a ftrong ^^^"" f^^dens
'i* \ "% • 1 /^ 1 £ XV I ^t 10726 77%
lion they ought to enter mto the Country conquered ^^.^^^^ . ^^d
)m the Ally, for the Recovery thereof -, but Excufes in a little after,
is kind proceed from thofe who fail in their faith, cou- ^^^^ mofe
!i ge, or means to recover. ^? ^ °^^ ^^
(1=5 ' thee, O Ro-
man ? what to
! League? What to the Gods, the Judges of the League? Whom Hiall I bring un-
tbee to be the Judge of thy anger and of my pumfhment? I refufe no People,
f private Men.
I XIX. Contribution is one of the main ingredients in a Jn.n^i^.Vid.
league, and is of great difficulty to regulate. It is made Sir ^o^^r/ Co/-
i ther in Men or Money •, the Men are entertained by all ^^^ xreanes^.
arties, or by him only that hath need, or otherwife as the of Amity and
.eague is. Henry Eighth made a League with Francis Marriage.
le French King againft the Emperor Mammilian and Fer-
iiiand, for the Recovery of Milan, which he did, for
le protedion of his Neighbour, and Redudion of the
'^ijfe from the Imperial fide, for which he employed the
^^(ijtard of Savoy 5 the agreement was of r;£ciprocal Suc-
' cour
^
126 €)f jHeagueji t^v autatrce taml BookJ(
cour of loooo Men, if the War were by Land, andj^'
6000 if it were made by Sea ; and in all other occafion!
the French King was bound to afTift the King of £wii
with 12000 Lances^ and he the King of France with looc
Foot at his charge that had need.
So where Contribution is concluded for Money, ther
are difficulties that do arife from the Perfon or Place wher;
it mufhbe kept ; to deliver it into the hand of the ftron4
eft, is not fafe, for fear they fh all not he able to call hint u
cccount ; to lay it in a weak place, were to expofe it tf)\U
attempt and force of theflrongeft^ or to him that Ihall fifft
take Arms •, but it has been ufual for the fum not to be
advanced till after the War begun.
XX. Leagues concluded by the Deputies of the Confdi-
rates^ there fometimes falls out a difficulty who fhall ra-
tify and declare himfelf firft. In the League which was
Andre^p Man- made between Francis the Firft, the Pcpe^ and the Prm
roceni Hift. ^^f Jtaly^ the King refufed to ratify until the Pop and
Venetians had ratified before him, and in that he fo cun-
.ningly wrought, that he procured the Collegues to dedare
and begin the War, whilft that he treated fecretly for
himfelf, to the end he might make his Conditions with
more advantage ; this he declared was for fear thofe lla-
lian Foxes fhould floew him the like,
XXI. Leagues made for an Enterprize fucceed feldoro
according to the hope of the Allies^ if the Enterprize k
long ', for befides that the preparations be long, the op
nions divers in the purfuit, the refolutions inconftant, the
interefts of Princes or States in a League may change with
time, or with the pradice of him againft whom they are
in League, in withdrawing fome one of them, or making
him to fuffer more lofs than the reft •, for feeing himfelf
ill defended or fuc cour ed by his Confederate, and that he was
in a greater danger to lofe than his Companions, k
• If one part ^^^" ftudies to retire * and to make his accord apart, as
hath violated did the Venetians with the Turks ^ after the lofs of Cyprus.
the League,
the other may depart from it ; for the feveral Heads of the League have every oae
the force of a Condition, fo G^/-(?//«j conceives, /. 2. c. 13. §. 15.
Soluti firderis XXll. The Ordinary caufes of the Rupture of U(i^^^^
'rtrl"'^''' ^^^ ^^-^^"^ zr\djealoufy, as if one hath had conference with
'^l/lrJZlTws ^^^ Enemy, without the confent of the reft j if that which
/e confer unt, fefVeth
:hap. VII. jat>f Kleasttegi bv aintance equals 1 27
;rveth for the fafeiy of one^ diminifh the fafety of the ffdquiquam
\htr inconftancy^ variety, cowardice^ divifion^ ufurpation J"*'"^^' P''°^''f^'
ythout the confent of the others. Zl pTJfiant,
So if he treats with the Enemy, not comprehending ^///5/ «/)«^
le other Allies^ but as Adherents ; as Lewis the Twelfth eundem, ft <vel
:ftthe League of the Venetians y for that they had made ^^i^f^'^^^l^^i
Truce with him, and had prefumed to name him only teruirairfnf
J an Adherents It was the opinion of Bryan, that if all grederetur,
le Subjects of England would make War with a Confede- rupta/org
jte Prince or Republick m League with the King of Eng- cyd'^/zl^r
md^ without the aflent of the King of England^ fuch a i^e. \. Vide
Var was no breach of the League ; and upon the fame ^tat. 2. H. ^,
;afon were the refolutions of the Judges in the Duke of ^- .^•
lorfolk's Cafe, where the Queftion was. Whether the ff^ \^'^^^
.ord Herife and other Subjecfls of the King of Scots, that Duke of Ncr-
'ithout his affent had wafted and burnt divers Towns in /c/^'s Cafe. 4.
■»f/W, and proclaimed Enemies, were Enemies in Law, ^^ft-fi^- ^S^*
ithin the Statute of 25^. 3. the League being between
le Englijh and Scots, and refoived they were, and that
le League remained.
XXIII. The Succours that one Confederate muft afford ^'£^^,'^^.
nother (Confederate (according to the haw of Leagues) Etfi/ci'vero '
gainft a Confederate, is of great Confequence : Three 'velUteali-
'finces allied, the one makes War againft the other, and q'^^^f^ji^P of-
emands fuccours from the third ; in this Cafe, if the ^^^ ^^^J. ,
r AIT 1 1 r T-. • 7/7 • • • • generaltter 1361
reaties or Alliance be only lox Friendjbtp, it is CQn2i\njpecialiterfue'
e is not bound to give any fuccours : But if the Treaty ro requijitus,
irries an offenftve League, he muft fuccour the moil an- ^^"^^ ^''^^'' /-
'ent allied by a precedent Alliance, If the precedent Al- TlnT* •
ances have been made both at one time, he mult luccour Hum. Orat,
im that is allied in an offenfive and defenfive League : Demofthen.
iutif the League be offenfive and defenfive of either fide, '^^ MegahpolL
t ought not to fuccour either ; but he may mediate a * Peace, ^'^ihilinurce-
nd caufe the difi^rence to be judged by the Common f^,Zi"ppuh
tllies, which being propounded with a Declaration, that pads bellique
■ one refufe, or having once fubmitted, will not yield to Hhenim arbi-
udgment, he will fuccour the other, as the Swede znd^p''"'^^-^!'^'-
^[s,^ upon feveral occafions have done ; notwithftanding j^ j^f^ j^^n^
^ point of State on fuch occafions they ufually balance ^r>^aV //^.
iieirEftate, and looking more to fafety than Juftice, they 2. cap. 15.
Jccourhim who beino; enforced, may weaken the power- tv^^' ^^"^t.
Ill nrU^ • t r 1 • rL TTT 1 " Monmcuth Hi-
^1) Who IS more to be., feared ; yet to unjuft Wars there ftoryofivw/c^
is/5/. 31.
128 ©f iteagteegi hv ^iiianct equal* Book i.
is no obligation 5 then certainly he ought to be preferred
who hath a juft caufe of War.
XXIV. By the Laws of Alliances Princes may dX^Ur-
ticular and common Allies^ if they be v/ronged by one of
the Allies.
Equals cannot But he which is not comprehended in the Treaty of
w'f ^ nor de"" ^^^^^"^^' ^^""^^ ^^ defended againft him thdt is *
mand Peacer ^^^^0"^: breach of the Alliance ; therefore* Mediation in
fuch cafes is the" only hopes of the oppreffed^ which not
having its efFed, if the cpprejjed put themfelves into tfe
tZ' tl' exVr'p- pi*oted:ion of the Mediator, they then become in the na-
th Legationum ture of his Subjedls, and then their Prince is obliged to
35. t\it\r fuccour and defence^ even againft his Allies^ and this
is by natural Right.
When£//- XXV. By the Laws of Leagues, though the Oath binds
Wth was ^"^^ ^^^ P^r/^/?, yet the Promife binds the Succeffor ; for
chafed out of ^^o^gh fome do hold, that Leagues do depend upon the
the Kingdom, Oath as their Firmament, though that is not fo for the
and Henry the moft part, yet the efficacy of fuch Leagues refts in the
«P agaTn ; ^'et ^^^"^"^^ '^-^'^^^ P. ^^^^^ ^°^ Religion fake the Oath is ad-
by Reafon ^^^- Hence it is, that Promifes made to a Free-peoplem
there was in- in their nature real^ becaufe the Subje6l is a permanent mt-
ferted into the Ur ; although the State or Republick be changed into a
v/Z\f'%th ^^^^'^^h:> yet the League remains, for that the body,
ihe King and ^' ^' ^^^ power is ftill the fame, though the Head be chang-
M:ea/m, that cd. And the Perfon is infcrted into the agreement, not
the League that the agreement may be perfonal, but to (hew wii
tfrpQ^^l ^^^^ ^^ ^^ ^^^^ ' ^^^ ^^^^ ^^ inferted into the League th
I'hit. Comines ^^ ^^^^ ^^ perpetual, or that it is made for the^^^^ oflhi
lib. 3. cap. 6. Kingdom, or with the Perfon and his SuccelTors, or for 2
Ulpian. Leg. time limited, the fame does moft apparently demonftrate
i-T?'f"'^' the thing to be real.
D.paais.
Addequa Hehetiis caufantur poji mortem Hen. 3.'«/»^Thu3num, lib. 97. in An. IJ89.
Vide ^ itijignem locum apud Cambden. in Anno 1C72. ubi de Fee dire anticuo Gd
i^Scol,
However, in all Leagues which tend to Peace^ though
there may remain fomewhat, whereby words of ambi-
guity may arife ; yet the moll pious way of interpreting,
hath been to account the fame rather real, than perfonal)
for all Leagues made for Peace or Commerce, admit of »
favourable
'N'lvourable conflruclion. Leagues defe^ve have 7ncre of
wour^ offerifive of burthen.
.. XXVI. Leagues made with Princes^ although thtj ^htus(^A^
happen afterwards to be driven out of their Kingdoms to Nahis, We
■ ly theif Subjects, yet the League remains firm and good ; ^^ysniadeno
> dx the Right of the Kingdom remains with fuch an unfor- ^^^j. society
anate Prince, notwithftanding he hath loft his Kingdom : vyitaihca, but
The Prefident, Canon, and Plenipotentiary for the Duke with Pehps
^\)i Lorraine at the Treaty of Nimeguen, r^enewed his in- ^^^^ ^ ^.
sJlbaces with the French AmbaiTadors, that he might ob- ^^^-^^ j^ace-
ain feme moderation of i\\Q Conditions that had been damonians.
oil lipulated for his Mafter •, the Emperor did the like, but
I mthout fuccefs ; however the Duke would not negle(5l
" iny thing that might give the French King frelli Evidences
jr' his defire to merit the Favour of his IVIajefty, he got
Sir Leoline Jenkins^ and the reft of the Mediators, to de-
clare to Monfieur Colbert^ that the Emperor had taken
)l into his Service all the Lorraine Forces \ and in the pub-
lick Declaration which the Duke made at Nimmegv.en^ he
faid, Tihat he had delivered all his Forces to a Prince at
Peace with France, that he might raake it appear to the King^
that though he was expelled his own Dominion^ yet he would
do nothing that might give his Majcfiy ground to deprive
him of the honour of his favour : And notwithftanding all
thefe moft fubmiffive offers, this unfortunate but gallant
Prince was fiiut out of that famous Treaty, which put an
end to a War wherein almoft all the Princes of Europe
were engaged. On the other hand, L^eagues made with
the Invader cannot be good •, for his caufe being unjufl^
is odious : but if * the People will make him King de *iiH.7,c.i:
fa5io^ and inveft him, the queftion is then out of all con-
troverfy •, for then he is becom.e a King regnant^ and by
the Laws of England^ if Treafon be committed againft -:■
his Perfon, and f after he is beaten out, and the King f 4E. 4. i:
de Jure comes to his Crown, the King de Jure may pu- 9 ^- 4- '2-
nifh thofe Traytors with death. 3- ^¥->^- 7-
The Earl of Warwick having raifcd an Army in France
and Flanders^ invaded England, and within five or {\yi ^'^ 4- '« ^^*
days after his landing, Kin^ Edward's Forces betraying H7o-
■him, the Earl became Mafter of the Realm •, the King
flying for protection to his Kinfman the Duke of Burgundy^
he kmdly in his mi&fortunes entertained him j yet while
I he
130 S)f %ta%m$ ht MUamt equal Book i.
he was in this baniflied eftate, the Duke of Burgundy
renewed the League with the Englijh^ it being agreed,
that notwithftanding King Edward's misfortune, the
League remained firm and inviolable between the Duke
Pbii. Comities Charlss of Burgundy^ and the King and Realm of Eng-
/. 3. c. 6. i^,^^ ; So that for Edward they Ihould name Hoiry (who
was newly taken out of the 'Tower by the Earl of Warwick^
Reges qutreg- at his chafing out of King Edward), Now the true rea-
tiis exiutfunt i^^^ j.j^^^ ]Leao;ues remain, and are firm, notwithftanding
lonis eiiamjus ^^^^ ^ cliange, is, bccaufe there goes along with them a
leganji perdi' tacit Condition, viz. of holding their pofTeflions ; and
derunt. therefore the World wondred not, that Charles II. having
fworn a League with the King of Spain^ exprefsly as he
was King of Portugal^ did notwithftanding receive two
Ambajfadors fi-om 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 Guife having formed the League againft
Henry the Third, which was, in regard the King was
fo cold in the ProfefTion of the Romijh Faith^ that it was
in danger to be cxtinguifhed by the increafe v/hich he per-
mitted of the Reformed Religion, efpecially feeing Henrj
the Fourth then King of Navarre was of that Religion,
and was to fucceed to the Crown ; wherefore by the Me-
diation of Philip the Second of Spain^ the Pope qualified
the Duke of Guife., Head of that Catholick League., and
Peter Mat- (Which in point of Government was to fet him above the
ot/vl^fln^ King) avowed him ProteEior of the Catholick Faith in the
the Life of Kingdom of France. When Henry the Fourth fucceeded
Henry HI. to the Crown, then this League for fecurity of Religion
was moft violent, and the Spaniard without, hoped, by
nourifhing thus the divifion within, to carry all for himfelf
at laft. To avoid which gin, and to anfwer all, the King
changed his Religion, and negotiated by d^Offat., to be
received by the Pope as a dutiful Son of the Church of
^ Rojne^ demanding abfolution for what was paft, and mak-
ing large promifes of due obedience for the time to come.
The King of Spain's intereft was, that he fliould not be
received, and thereupon he endeavoured to perfuade the
Pope^ that King Henry did but diflemble with him, and
that under this Difguife he would eafilieit ruin the Rcmijh
Religion : Notwithdanding this the Cardinal obtained hi?
Reception,
\
Chap.vii. SDf %ta^ut& hv MUanct eaimL 13 1
Reception, Abfolution, and Benedi(flion, through the
niany Promifes and Prefcnts which h^: made to H^s HoU-
nefs ; whereupon the Spaniard^ Defigns w^re in a Moment
all blown over from France, but fell heavily upon the
United Provinces, which were forely opprtflied, for that
they apprehended the Lofs and Ruin of their Country 5
and thereupon they implored AfTiflance from King Henry^
who received their Amballadors very graciouily, and
gave them Afliirance of Relief. The King of 6'/'^/;/, who
wanted no good Intelligence in the Court of France,
immediately remonftrated to the Pope^ That his former
Intimations concerning Henry^s DiflTimulations, did now
appear in the Face of all the World ; and that feeing His
Holinefs had been fo credulous, he knew not now whether
they fhould be able to fave the Catholick Faith from being
fubjeded to the i?c/'^r;;?^i Religion or no: for whereas the
Hollanders had revolted from him, only becaufe he re-
folved to ufe the true Means for the Eilabliiliment of the
RomiJJj Faith among them ; and that now he was in a
fair way of reducing them (which conduced fo much (by
His Holinefs his Opinion) to the Eitablifhment of the
Romijh Faith) Henry had taken their Party againft him ia
that Work \ and that at Paris he had received their A m-
bafladors to that Purpofe, although he knew they were his
lawful Subjeds, ^c.
This ftartled the Pope not a little, who charged d^OJfat
for having betrayed him, and put the Church in Danger.
This Argument was as fubtile on the Spaniard's fide, as
changing Religion was on King Henry^^ ; and therefore
the Cardinal v/as not a little perplexed how to anfwer ic
to the Advantage of his Mailer •, as alfo coheremly to the
Confiderations of his former Reception into the Church:
But at laft he replied, That Plis Holinefs needed not won-
der how in reafon of State, thofe different Religions might
join together for political Ends, without Hazard of alter-
ing Religion. Thus David fought Protection of the Phi-
liftines, and Abraham redeemed the iinful Sodermtes That
he took it to be upon the fame Ground, that Flis Holinefs
himfelf, not long before, received a Per/tan Atnbaffador,
who was fo fir from being a Heretick, that he never
pretended to the Name of Chriftian : That it was a plau-
fible Argument which the King of Spain ufed, in cqm-
I 2 plainin
or
Fide Peter plaining of Henry^s receiving and avowing their AmbafTa-
miof '^f '^°^' ^^P^^^^^^ly l<-nowing at the fame tinne that they were
France in Vita Rebels, and could pretend no Right or Title feparate from
Hen. 4. his Crown : " For Princes (quoth he) when AmbafTadors
In Regno di- cc ^j.^. addrcfled to them, never inform themfelves of the
Z{\fmLir' " ^^B^^^s and Title of thofe Princes from whom they are
quafi du<£ gtn- " f^Ht ', but whcthcr they have Poffeflion of the Force and
tes habent'ur : " Powcr of thofe Placcs from whcncc the AmbafTadors
And Princes <t ^.g employed ; for it would be an endlefs Talk, and
an^Eye^Tthe "' require an infallible true Hiftory of the World (which is
Power which " not to be made by Man) if all the AmbafTadors, be-
each King- '^ fore their Reception, fliould be obliged, firft to prove
"^^"^^^R ^' ^l " clearly to the World, the jufl Right by which their
one to the " Mafters derive thofe Titles and Jurifdiclions which
other, and " they afTume to themfelves."
not to exa- XXVII. And as Leagues are Covenants or Agreements
inine their inade by command of the higheft' Powers, wherein the
Parties are bound over to the Divine Wrath, in cafe they
break their Faith ; it hath been a famous queftion, Whe-
Coke 3. injiit. ther they may be entred into which thofe that are Aliens
foU 155. from the true Religion, whereof by the Law of Nature
there is no doubt nor difficulty ; for that Law is fo com-
mon to all Men, that it admits not any difference of Reli-
gion ; but xh^ queftion is about the Law Divine, out of
which it hath been difcufTed, not only by Divines, but
Grot. Lih, 2. famous Lawyers, as Oldradus.^ Decianus^ Grotius ; upon
cap. 15. §.8, j-|^g whole they have agreed, that they may be entred into
^' ^°' as well with Princes Infidels as Chriftians : and that is
evidently proved ; for that before the Law of Mofes it was
lawful to con trad Leagues with Aliens from Religion for
an inofFenfive and harmlefs behaviour, as that of Jad
with Laban : nor did the Law of Mofes make any change,
the example of the Egyptians being exprefs in the point.
'Tis true thofe feven Nations and other Kingdoms, as the
Amakkites^ that were deftinated by Divine Sentence to be
extirpated, were excepted ; but Leagues of Commerce,
and fuch as pertain to the utility of both Nations, or ot
either Party, are by the Law permitted with the profane :
So David and Solomon made League with Hiram King of
the Tyrians \ and that which is very obfcrvable in the Sa-
cred Hiftory, of that Adion it is laid, That the Alliance
wai made by Solomon according to the Wifdom v/hich God
had
chap.vii. j©f Uta^ms bv Mtance equaL 133
jihad given him. 'Tis very true, the Jews were generally
I very cautious of con trading with Idolatrous Princes, and
;Ithe Reafon was, for that they had exprefs Promifes of
'I Victory, but that was conditionally, f. e. if they kept the
iLaw, which if performed, they had the lefs need of
'human Aid. But now under the Gofpel fuch contrads
1 have a more favourable Admittance, according to that of
i ^ertulli^n : So long as Ifrael (?;^/y was his people^ God did Lib. j. cap. '^',
jufily comwand mercy towards their Brethren alone \ hut after ^"''"^ ^-^5^-
\ that he gave unto Chrift the Nations for his Inheritance.^ and p^^tores h/*'
the Ends of the Earth for his poffeffion ; and that began tp be Reges Chrijii-,
paid which was promifed in Hofea, Tihey that were not my ^»^' F(£dera^
feople foall he my people, and the Nations that had not obtained ^!^!i^ ^°^
mercy jhall obtain mercy ; from that time Chrift hath extended autcumnmfa.
unto all the haw of Fraternal Benignity., excluding none from ne Chrijiianis
our compajion no more than from his Vocation \ and therefore fic^re, Con-
! as it is no evil to do good to the profane, fo neither is it ^Q^'ly^^y
unlawful to implore their help, as Paul invoked the Aid dalh, Jufil."
Qt^Ccefar and the Chief Captain •, fo that at this day there »/««/// cum
is no intrinfical or univerfal Pravity ; neverthelefs thofe Lon?obardis,
Alliances have their Circumflances or Rules of Govern- Sl'^f:^'^!!'
ment, as not to join with them but in extreme neceffity, ^^orius ^ cum
according to that of * T^hucydides : They that are treache- Mauris Reges
roujly ajfnulted., as we are by the Athenians, are not to he H'lfpani^.cum
blamed., ^f they feek for fafety^ andfecure themf elves by the aid J^/J^'^'/rfl'
not of GvQQks 0/?ly, i*^/ Barbarians. fpurgenfzs, Adi
Johannem de
Carthagtna /. 3. de Jure Belli Romani Ponttjicis c. I. Julius fecundus Poniifex Turcis
ufuSf Fide Buljirod part. ^. fol z%. cited in I^ Jar/he's Cafe, the Cafe of Samuel Pellagy
that had been Ambairador to the States q{ Holland to treat with them from the Emperor
o{ Morocco.
* Famous was the Piety of Emanuel Duke of Savoy ^ who when he was ahic to tak»
Cyprus by the aid of the Great T/#ri, refafed it.
I 3
CHAP,
[ 134]
CHAP.' VIII.
sEiDf 3Uiance^ wnequai. ant) g£ ptcttctm,
I. Of Alliances unequaL in reference
to the ackno^vjiedging a Superiority
or F rote "ion in another.
II. Of ProteFiions by a Prince or
State 'voluntary or mercenary.
III. Of the Con'veniences of fuch
Alliances^ hoiv confidered.
IV. Of the Duty imumhent on the
f rote Bed, and the obligation in Ho-
nour and f if ice on the FrofeBor.
V. Of Alliances unequal, and of the
ordinary Caufes that may tend to
a Rupture of the fame.
VI. Of the Ccuje\ extraordivar'f
that may occafon the Breach of
fuch Alliances.
"VII. Of Faith and AJ/urance im-
flicitly difcharged by the delii'er-
ing of Hojiages.
V 1 1 1 . Of the Diff'erences of Leagn e.s
(ontraclcd by Pri?2ces, through
force or fear y differing from Cou-
ira5is pri-vate»
IX. Of Ambiguity in fviords^ honuit
halh gi'ven occafon to Princes to
depart from the Lmgue, andoftht
Reputation of Princes on fuch oc-
cafon prefsr'ving the Alliance.
X. Of the Firmnefs and Affurance of
Alliances f ^whether to he fcmd
more in Princes, or in Repub-
licks.
XI. If one Party hath violated tU
League y nx:hether it be lan.fulfer '
the other to depart from thi
fame.
XII. In the Conjlruclion of LeagueSy
the l^houghts not the Words of
Frances to be confidered.
XIII. Of things ta i ly except d in
all Leagues and "Treaties^ in reft'
rence to their nullity.
XIV. Of things faa)Our able y things
odious, and others of a mixt na-
ture to be ufed in the interpreting
of Leagues.
j^ndronicus
Rhodius pofi
Ariftotelenty
€tmicitite inter
partes hoc ait
proprium, ut
potent iori plus
honoris, in fir-
sniori plus
Guxilii defe*
ratur. Grot.
lib. I. c. 2. §.
21. n.2. It is
the property
of Fri«ndftiip
''t'.vixt ur.e-
ciial:\ :l:ac thQ
I. T TNequal Alliance is that which is contradled be-
\^ twixt Princes or States unequal in Honour^ or in
Powery with unequal Conditions, the acknowledging the
other, nat for Majhr or Lord, but by Honour as the more
powerful, and the better qualified, and fome for Pro-
teffor *, and thefe Treaties are made with thofe States,
which take or give Penfion, or which put themfelves in-
to Proteffion, And fuch was the League of * Prote6lipn
propounded to Queen Elizabeth by the States-General of
the United Provinces, who by Jcos Van Menin moft hum-
bly befought Her to accept of the Sovereignty and Su-
preme Dominion over the faid United Provinces upon cer-
tain and reafonable Conditions and Articles, ^r,
^rikti
i.'HAP.viii. ©fKLeaguegB^tiitaitce unequal. 13^
•onger have more Honour, and the weaker have more Flelp : Procu/as zdds that
IchaClaufe is inferted in the League, to fignify the one is fuperior in Authority
I id Dignity, for both are free, but are fuh pafricinio, mn fuh didione. Liv. lib, 'ifj,
\icer0Offic.2.
* Hon fine netu in pofierum, quern tunc prafens necpjjitas averterat. Grotius AnnaL
11. c. A. E. Mi tor an. lib, 13. ad An, 1585. Grimjion, lib. 12. ad An, 1585.
Tribute is paid by the Suhje^, or by him, who, to en-
y his liberty, pays that v/hich is agreed upon to him
lat hath forced him to do it. But a Pen/ion is held volun-
! ry from him that is in Protections or from him that is
I all other things equal to the Treaty of Alliance to hinder
iie Penfioners that he join not with the Enemy, as the
I wifs to the Frenchy or to have Aid and Succours from
'im.
I II. But that ProteElion is moft true and hcnourable, Leg. non duhitl
hen a Prince or Republick takes upon him thedefence of ^« ^s Ca^,
lother, freely without Reward \ though fome, if not all,
nd it mofl: neceflary to balance Honour with Profit,
•oni this Maxim, that A pecuniary inter eft obliges more to
iccoury than when barely obliged by Oath.
III. Again there feems to be a kind of ProtcBion or
n Alliance, which indeed is no more than a bare pe-
uniary retaining. Politicians have confidered the Sub-
let diverfly, either Abfolute or Conditional *, Abfolute
J that which is meafured by the concurrence of the great-
.efs of Forces, Treafure, Munitions, and other Military
^reparations : Conditional is that, the which although
c be lefs than an abfolute, yet is more fit to fuccour us
ir do us Harm : In this the Neighbourhood is of very
^reat confideration ; for that a Neighbour Prince of mean
forces may more eafily hurt or fuccour us, than a great
Prince that lies far off; near Succours are always fooner
•eady and with lefs Charge. And this makes the Bifhop
)f Munfter to be in that efteem with the States of Holland
md the other Sovereign Princes borderins; on his Terri-
:ory 5 and the Reafon why he is fo much the more courted
into Afliftance and Friendfhip is, for that his Forces be-
ing at hand, if Peace be concluded, he is the more eafily
difpatched, whereas remote and abfolute Princes their
fuccours come often too late after the Occafions to defend
us, and too foon to opprefs us.
I 4 IV. By
1
136 fiDf "jfLeafiiresi tv SlUtancc uncquaL Book i.
The Genoejes IV. By the Law Q^Prote^ion^ he that is proteded owes
IhJmfelv^ in ^^^ ^C//'^^ and Honour to his Frotetfor, againft whom if
the proteaion ^e confpirc or attempt, or ftrays from his duty, it is law-
ofthefrr«f>^ ful for the Protedor to make better ajjurance % nay, if
King, revolt- v»e pleaffs, to make himfelf Mafter : But then on the
^^^^^y^^^^^^ other fide, the Protcdor ought to defend and fuccour
their Conditi- ^h^ P^'o^^'^^di and ufe him well ; for otherwife he may
ons into Privi- withdraw himfelf from the Protedion, and feek anotherji
leges, to the
end it might be his Will to deprive them when he Taould think ^t. Vide Cardinal,
Thu/c. P. P. Cw;f/.\935.
V. In Alliances rhit are unequal, there are four kinds
of Controverfies may happen.
This holds as Firft^ If the Subjects of a Prince or Republick, that
well between j^ under the Protedion of another have committed any
Leagues equal y ■ . n i t
as unequal, thing agaiiifi ike League.
Grotius^<7«- Secondly^ If the Prince or Republick be accufed.
re Belli ac Pa- ^hir^ly^ If the Fellows, which are under the protec-
cis, L I. f. 3. j-Jq^ q^ j-j^g j'^^j^g Prince or Republick^ contend with one
This hath the another.
fame Right in Fourthly^ l^ the Subjcfts complain of their own
Leagues that Ruler.
^NamV^'uis ^^^ ^^^ •^^^^' ^^ ^ ^'^"'^ appears, the Prince or Rc-
uhhnemfumat publick is bound either to punifli the Offender, or to ren*
ab eo qui pecca- <d^r h\m nulo the Patty injured, and fee or endeavour
wit, Jatis eji^ xhn Damages may be recovered.
""^ '^'' ^* ffhdi' ^^^ ^"^ ^^ ^^^ j/ociates in the League hath no Right to
tTs^mn fit. apprehend or punifh the Subjeds of his Confederate.
Grot, de Jure To the fcccnd, the Confederate hath a Right to com-
BelliJ.i.c.o,. ^q\ his Confederate to fland to the League, and if he
Burth-t^* will not, to punifh him, for that one may take fatis-
proves not a- fadlion cr revenge of him that hath offended -, and this
ny power of happens as well amongfl thofe that have no Confedera-
commanding, ^J^n at all.
lTuan"''Tr' *^° '^^ ^^^ '^^^*^^' ^^ ^" Confederacies equal, the Contro-
their caufes verfies are wont generally to be brought before an Jffcfn-
before judges hly of the Confederates, that is to fay, fuch as are not
of their own concerned in the Quelfion, or el fe before y/r^//r<j?/^n, or
fT'^f't' ^^^"^ ^"-^^^^^ ^^^ ^^^^^^ ^^^^^ Alfociation, as a Common Ar-
2i.«, 6. p^f^/bitrator.
So
51 :hap.viii. £)f xcagtte^ hv ainiatice unmuai 137
i\ So on the other hand in a League uneqiiaU it is agreed ^w qui Fade-
or the moll part, that the Controverfies be debated befoi-e 'Jf-' ^^^^"P^i
. ' n ' '.IT jurii. Circa
lim who IS Superior in the League, ^^^^ ^^.^^^
To the laft, the Confederates have no Cognizance, In utilitates nihil
rommon Affairs out of tinne of AfTembly, even where /''•^">aa^ /«-
v-\\e Leaiue is equal, the Cuftom is for him who is chofe ^^^^* ^f ^"
tChiefofthe League, to have Command over the Confe- ^,^^^ ,^^^„^;^
II derates, according to the Speech of the Corinthians in eminere fupra
<' Tbucydides^ It becomes them that are Princes of the League^ cateros. In
*' ^Q^ to feek their own particular advantage, hut to content ^!^^' ^^'■^"-
ii themjelves ivith an Eminency above the refi^ in taking care
of the common Intereft.
VI. Though that the Breach of Faith be much prac-
tifed in fuch Affairs, yet there are few Princes found which
have not found a pretext ; fome have pretended to be cir-
I cumvented by error ; others by Change of Affairs have
! have pleaded an excufe, as great Wrongs or inevitable
Lofs, and apparent danger of the ruin of their States^
which are the Caufes, wherein ^bmt fay, that an Oath is
not obligatory -, the Condition, by reafon of the Oath, be-
ing impoffible or unjull *, to thefe Limitations, fbme hold
they mud not keep fiith with an Enemy of the Faith, nor QUrad Confix
with him that hath broken his, nor with a Subject, nor
m\h ^ Thief OY Pirate ', certainly if it be not lawful for
a Man in thefe cafes to keep Faith, it is not lawful to
give it : If it be lawful to capitulate with fuch Men, it is Gre<>orius,
necefiary to hold what we promife, that is, (we prefume) PerjuriumDeo
when the word is given by him that may give it, and that ^^^^p^^^ impin
they rely upon it. gitnegligmia:.
VII. If Hcftages are taken, he that gives them is freed
from his Faith ; for that in receiving Hoflages, he that re-
ceives them hath relinquifhed the affurance v/hich he hath
in the Faith of him that gave them ; fo where a Captain
for his Prince gives his Word without Commijfion it binds
not the Prince,
VIII. Some Lawyers would judge of "Treaties as par-
ticular ContraEfs, by which means they would ftretch the
Confciences of Princes ; for, fay they, that 4is a private
Man is not bound by that which he hath promifed by
force Q^ fear, fo it ought to take place amongft Princes anA
in Treaties which are made betwixt Sovereigns ; but that is
ridiculous, for that were in eff^^l to banilh Faith from all
publick
138 ^f )Leagttcjj hv ^ilianaumcimi Book i.
pnblick Negotiations ; for there is no Treaty but what
is ufually made in j4rms by force, or through fear to lofe
either Life or Goods, or Liberty, or the Slate; which
are caufes o{ juft fear, and may fliake the moft conftant.
IX. Some Princes defiroiis to fhew themfclves more/>,
religious in thefe Ruptures, have taken fubjed and occa-
fion upon the Ambiguity of fome Claufes in the Treaty^ or
Upon the upon Equivocation, as Charles the Fifth did ; or elfe they I
words Et'uing fg^]^ other Occafions, as attempting againft thofe whom
and £«?;^. to their Ally is bound to defend, to the end that drawint^
retain the , . , J . ^ i , , 77 r r i 1^ °
Landgrave of "1^1 mto the field, hc may lay the cauje oj the Rupture on
Bejfe. him.
But Princes, who refpedl fuch Treaties with a pious In-
tention of preferving them, always remain conftant and
firm -, and though occafion may offer itfelf, by which they
might get advantage by the Breach ; yet when they re-
main durable, fuch refpedl is afterwards had to their Word
' and Honour, that fewer and lefler fecurities will be demand-
ed of them, than one whofe Faith is doubted.
X. But AfTurances in cafes of this Nature have been
found more in Republicks than in Princes ; for though Re-
publicks have the fame Mind, and the fame intentions z%
Princes, yet for that they move but flowly, it will caufe
Famous was |.j-jgjYi today longer in refolving. Famous is that of the
th^ CarthaJi' -^^^^^^^^^-^j when ^hemiflocks in his Oration told them,
titan Senate That he could difcover a Matter in which the Athenians
to the E.omans would reap great Advantages, but he could not tell it,
upon the af- f^j. f^^j. ^he Difcovery would take away the Opportunity
^" '^^^^.°Yl^g] of atchieving it: whereupon the Athenians deputed yfr/-
ther Sagun- JUdes, to whom he fhould communicate the Secret, and
ium was af- \^ith him fhould confult about the obtaining it : They
faulted by pri- irjeeting, Themijlocks demonftrated that it w^as in the Pew*
lick Council ' ^^ ^^ ^^^ Athenians to make themfelves Mafters of all
we conceive it Greece, for the Grecian Naval Army was then in their
Kottobemade Ports and Protedion ; whereupon Arijlides replied, ^he
the Queftion ; y^^^ ^,^j ^ Breach of Faith : But it was anfwered, // bein^
ther it^ was af- /^^ ^^^^ puhlick, all confiderations of that kind ought to k
faulted juftly Iciid afide \ whereupon Arijlides being called by the People
or unjuftly ; to give Report, told them, "Themifioclesh advice was ex-
r7, *° ^^^' ceeding profitable, but difhonefiy for which caufe the People
lelves an Ac- . <. r* r j *
eoun: is to be wholly refuted It.
XI. If
MUn by our Citizens, whether it did it of itfelf, or by Commiflion ; with you
tW; alone is difputable, whether it were a violation of the League, or no. Li-
t|J^. 31.
XI. If one party has violated the League, the other
j J ly moft certainly depart from it ; for the TranfgrefTion
^, the Articles, be it never fo little, makes a Breach of
cj]^ Agreement^ unlefs it be otherwife prevented by Con-
\\ 'ion, which may be, by inferting into the fame, * thai * Grot. /. 2.
\\\' every Offence it may net be lawful to depart from the ,^' ^5* §• 'S*
5^11. In all Leagues^ theThoughts of Princes and States are Infidequldfen^
(jii be confidered, not what they faid ; yet becaufe internal /^.'*'^»/^^^.^^^^
[J ts are not vifible by themfelves, it is necefFary that fome- ^^^'^"cfc^Te
ijibat certain ihoiild be determined, i. e. reduc'd to Heads ofHc. i.
:j • Writings^ otherwife there would be no Obligation at
\ i, for then every one might free him.felf by affixing on
s own Words what ^txdt he pleafes. Hence it is, that
J the Didates o^ 'Natural Reafon, he to whom any thing
promifcd, hath a Right to compel the Promifer to than
hich right Interpretation fliggefieth, for otherv/ife the
laticr would have no End. And as the reducins of
le Treaties into Writing makes the Agreements plain
id obvious, fo the m.utual Advance of the Minifters pro-
artionably hallens the Accomplifhment. The Counts
\vaux and Servient^ being appointed for the Treaty at
dunftery as they paflTed through Holland^ they enter-
i into a Confederacy with thofe States, wherein
ach Parry reciprocally did bind themfelves by Articles,
ot only not to treat of any thing without the AfTent
nd Participation of the other Coilegue, but that the Monmouth's
Treaty fliould be carried on fo equally, as if one of the ^^^^^L^\^
^arties Ihould fee the other's Bufinefs advance further ^^*'^^'''^ '^ '
han his, it fhould be lawful for the one to defire the other
0 proceed no further, till his Affairs were equally ad-
'anced : which Articles bounding the Approaches of
ach other, foon haftened the End of that tedious
Treaty.
XIII, Again, in all Leagues and Treaties for Peace, ^ipromUtit
-here is this Exception to be fuppofed in the Contractors, nonoffenden.is
ankfs fome new Caufe intervene, gr unieis it be by the {;^,^', -f f^^^
default lJir^ c^ufafu'
Of
140 ^f%taQm& iv Sintance unequal Booki.
fer've7iiat. nijt default of him with whom the League and Compadl: is
'•"t'c'T^r'fw' made, or Affairs continuing in the fame pofture and ftate
Jio'iJaftlZf ^" which they were at the Time of the Contradl : and that
paaio i'ceJerisy Saying of Ulpianus and Fom-poniiis concerning private Com-
rehu ft jianti- pa6ls, v'lz That an Agreement is not violated from "jdhkh
G til d-^[u- ^ ^^'^ recedes upon ajufi reafon and motive ; is by Inter-
Beiii/3.c.24, preters extended to National Leagues betwixt Princes and
States.
XIV. In the Interpretation of Leagues and Truces, there
ought to be a very great Care had, in regard of the U-
crednefs of them •, therefore in things promifed or fecured
by fuch Leagues, fome are favourable, fome odious, fome
mixt, or of a middle Nature. Thofe that are moil favour-
able, are thofe whofe Words tend to Peace, not to War,
whofe Footfteps leave ever behind the deep Imprefllons
of Mifery, Devaftation, and Poverty, but more efpeci-
ally when fuch Leagues are made for F/ar Defenfive than
qtherwife j but thofe are called odioitSy which hurden or
cpprefs one part only, or one more than the other, and like-
wife fuch as tend to matter of Revenge or Punijhment,
or to violate fome former acls or obligations, or the bring-
ing in a change or innovation of what hath been . confimly
In L. mn fof fettled , and ufed before'. Mixt, as v/here a Change is pro-
fuvt. D. de he- pounded ; but that is with the Sillers of Moderation and
gihus. PeacCy which are proportionably good, according as the
Change may be eileemed. Therefore the Standard
Rule is, That in Leagues and Treaties not odious, ik
Words are to be taken according to the full extent and prs-
priety of popular ufe *, and if there be more Signification^^
the largeft is befi : On the other hand we are not to re-
cur to Significations plainly improper, unlefs otherwife
fome abfurdity or inutility of the Agreement would fol-
Videexemplum low. Again, Words are to be taken ever more ftridly
in L. cum i;/- than propriety fuffers, if it be neceffary for the avoid-
^Zmm^'^'' ing of inequity or abfurdity. But if there be not fuch ne-
cefllty, manifefl equity or utility in the Reflridtion, we are
to flay them within the narrowefl Bounds of Propriety,
unlefs the Circumftances diffuade. On the other Hand
in Leagues or Promifes odious, even a figurative Speech is
admitted to avoid the Odium, or burden ; therefore in do-
nation ^ Remiffwn of one's Righs^ Dominion^ or Propertj,
(jAP.viii. jDf'iLcaffttejt tv^iUmct umami 141
tiV are always to be conftrued to thofe things which
\ re probably thought on, and really intended. So Aids Grotius /il,.i:
%id Succours promifed from one part only, is to be un- ^^P- 16. §.12.
HJrftood to be due at the Charges of him who Jh all ac-
W^re them.
CHAP. IX.
H\
'^, )f Creaties! of Cruce, jijeutraltt^, an&
?Seace«
Of Treaties^ the ^various forts. I VII. Ho^v prefer'ved and •punijhed
Of Rules in Cafes doubtful. J by the Laucs of England.
VIII. Of treaties of 'Neutrality,
the 'various Sorts.
IX. Of the Advantages of the
fame.
X. In Cafes of Necefjity nxihere he
ought to declare, and for 'whom.
I. Of truces amounting to a Peace
T, Of the Ad'vantages hetijoeen
treaties of Truce and Peace.
. When promoted.
I. Whether it can prejudice the
Pretevjions of the Principal.
TReaties are either with Enemies or Friends., or
with Perfons which defire to continue Neuters
'ith us, or we with them.
The Treaties which are made with our Enemies are ei-
ler for a time^ or perpetuaL
Perpetual^ as the Peace that is made to compofe all
ifferences, and the War that is undertaken for Conquefi^
r for Reparation of Injuries, or to rejiore the Commerce,
Treaties., which are made for a time with our Enemies,
re called Truces \ the which are either general., for all the
Jtates of the one or the other Prince, for all Perfons, and
or all forts of Commerce : Or elfe they are particular^ for
:ertain Places^ for certain Perfons^ and for the Commerce ^
ind fometimes no further than a bare fufpenfion of Arms.
A Truce is an Agreement, whereby though the War Truce, what
:ontinue, yet all Ad:s of Hoftility do for a while ceafe ; it is.
iOr between War and Peace there is no Medium, it is,
I and may be called a War, tho' at prefent its Operations
[are intermitted. An Habit may be, tho' at prefent
't doth not operate* A Man may be faid to be v/ife
or
142 M Cixatfegf of Cruce anb jl!ieutrattt^BooKil
or prudent, tbo' he be afleep, and virtuous, tho' fc
a while he be void of Adtion. So that a Truce cannc
Grof. de Jure be Called a Peace, for tho' the Fight ceafe, the Wi
Belli ^ pads, continues, 'tis but a bare Sufpenfion of the Ads
/Of. $.£.21, War.
^* ^* II. When any one is bound by Allimtce not to mab
P^jr^ or Truce., without the Confent of his Ally., and
In the Truce ^^^^^ Agreement feems doubtful, they add in the
that was made Treaty, that it fhall take place for all thofe the Con-
between Ed-oj. traclers fliall Name, and they fet down no prefixed time,
the Fourth [^yj- ^}^^^ it Jloall continue till he refufe^ and fome reafondk
^^^^^^^^ ^ time afcertained after 'y as that which was made betwixt
there was* like Charks the Eighth and the King of Spain,
provifion
made for Charles Duke of Burgundy, but he refufed, and concluded a Peace for himfeif
apart, being angry with Edward the Fourth for making the fame. Phil. Comin* hh.L
cap. 40. So Len>jis the Eleventh concluded a Truce for nine Years with Edvmi
the Fourth when he had invaded France, Phil. Comin. lib. 4. cap. S.
III. Sometimes a general Truce holds the place of Fmt,
as that of a hundred years. Such Truces are commonly
made betwixt Princes that are equal in Pozver^ as that be-
twixt Spaift and Portugal,, and will not quit any thin^of
their Rights by Peace ; and yet defire to live quietly in
the State wherein they are, fatisfying by this Medium lb
point cf Honour.
IV. Treaties of Truce are many times lefs fubjeftto
Rupture than a Peace, which is mzdc perpetual ♦, for Princes
or States that find themfelve^ aggrieved with a Treat)*
that is perpetual, feek out plaufiblc Reafons to forfakeit,
feeing the Grievances cannot be otherwife repaired; bv:
if the time be limited and expired, they may purfuethar
which they think ought to he granted^ and x.ht other may
oppofe ; and i£ they have a defire to continue the trm,
there is nothing fo eafy as to renew it. Hence it is becoir^e
a May.im in State, That feeing Treaties are grounded
on the Inter efis of Princes ivhich change with the time., itv
7iecejfary to change and fettle them at the end of the time, cf
to break them off : for it is in vain to truft to a ' bare
Fricndfliip.
*TIs true, the " V. A Truce is likewife made to advance a Peace, and to
Sixjedes and treat of it ; and fuch was the Truce of the Hollanders pro-
Confederates P^^^'''^^^' ^^ ^^^^ Treaty of Mmiflcr^ who refufed abfolutely
I H AP. IX. ^(€xtatit§ of Ctttce anh Btutvalitv* 1 43
j liften to any more than a Truce 5 and the Reafon that with Fra»cg
iey then gave was, that their Commonwealth was to be p^^cV^and
'aintained by Arms, and that by admitting a Peace, the ^^^ Marquis
I me might be ^ means to reduce it to weaknefs, which Capl RodHgo
ould in the end tend to the deflruction of that State ; thenofFered a
ay, they offered the Truce on Terms, that if * France fj^—l,
• ould enter thereinto, ihe fhould oblige herfelf upon ^hj^h they
jiy Breach to reaflfume War, and that Treaty of Truce might treat of
as continued, which not long after was converted into a at home.
, -r, * Monmouth'^
; ^rpetual Peace. ^ j^.^^^^ ^^
il Again, 'Truces are lometimes promoted lor the more franQeJoUzZ^
\ meft difcharge of a League^ which is made with fome
iher Prince, v/hom they have accuftomed to compre-
i:nd therein: fo as a Peace following it, or a Truce not
:ing accepted by him, they take occafion to leave the
sague, it being not his fault that leaves it, that the War
\ as not ended.
VI. And although it feems that a T!ruce cannot by its
indidon prejudice i]\q pret en/ion in the Principal •, yet it
moft certain that if he which is chafed out of a conten-
)us State, confents that during the T'ruce the Commerce
all be forbidden to his Subje^s^ he doth wholly flop the gat e^
* Lewis the Twelfth did in the T'ruce which he made * ^^^ ^^^ ,
ith Gonfalve after the Conquefl of the Realm of Naples, ^jfj,^ ^Tm ^'"'
VII. In England by the Statute of 2 H, 5. cap, 6. Rob- however he
ry, Spoiling, breaking of 'Truces and Safe-Condu£fs by hath loft the
jiyof the King's Liege People and Subje^s within Eng- poffcffion.
nd^ Ireland^ and Wales^ or upon the main Sea, was ad- ^°^\ ' / ^\
dged and determined to be High-Treafon, but this
•anch concerning High-Treafon is repeal'd by the Statute
20 H, 6. cap, II. I E. 6. c. 12. i M, Sejf. i. c. t. But n H. 4.
h the faid yl5i of 2 H. c. for the better obfervation of
races and Safe-Condu6ls, Conferva tor Induciartan i^ faU
]Vrum Regis condu^uum, v/as raifed and appointed in every
ortof the Sea by Letters Patents: His Office was to in-
Jire of all Offences done againft the King's Truces and
ife-Condu6ls upon the main Sea (out of the Counties
jl^doutof the Leagues of Cinque Ports) as Admirals of
uftom were ufed to do. Sir John Trebiel was committed
^^ the Tower for taking a French Ship, and being brought
,,'to Parliament^ did there juitify the f^ime ; but at fail
ifcfs'd his fault, and begged the King's Pardon. And-
II at '
144 MZnatits of €tmt antj j^eufraittt^ BookI.
■\ AdParliam. at the requeft of the Lords and Commons was pardoned
m)^fide"' ^^ "taking fatisfaaion for the lofs f. Generally all
Cotton Leagues and Safe-Condudls are, or ought to be of Ruori,
Abridgment, that is, they ought to be Inrolled in the Chancery^ to the
igE.4.6.B. end the Subjedl may know who are in Amity with the
^i^6 ^ 8* -^^"p' and w^o not; who be Enemies and can have no
20 H. 6. c.u Adion here, and who in League, and may have Adions
14 J5. 4. r. 4. perfonal here.
i9i?. 4. 6. B. Sometimes they have been inrolled In the JVardrohe^ as
being matters of State.
J^axlm. Note, In all Treaties^ the power of the one party ^ mi
the other y ctight to be equal , nor are they to be held firm tiH
ratified.
Rott.Scot^^ede Before the Statute, when any breach of Truces or
jnm. 10 £.3. Leagues happened, or was occafioned by the mifdemea-
^'^JS/'^^^^^^^^y ^^ ^^^ 'Kmgo^^ England's Subjeds, there did
qui contra for- ufually ifluc fotth Commiflions under the Great Seal oi
■mam Treuga England^ to inquire of the Infringers of the fame, and to
hominihus de punifh and award Satisfaction to the injured.
^ddiquerlnu ^I^I* Frinces who neither love nor hate any thing ab-
folutely, feem generally inclined to Neutrality^ and in that
govern themfelves in their Friendfhips according to their
Interefts ; and Reofon ofi State^ in efFed, is no other but
Re af on of Inter eft.
Neutrality may be of two forts -, the one with Allimi
with either <part^ the other without Alliance, or fo much 25
the leaft Tye to the one or other, which is that which
properly may be called Neutrality.
The firft is governed by the 'Treaty of Neutrality\'tk
latter by the Difcretion of the Neuter Prince^ whofe Car-
riage ought always to be fuch, as that he may not give
the leaft glimpfe of inclining more to one than to ano-
ther.
IX. The Advantages of Neutrality are, that the Neu
ter Prince or Republick is honoured and refpefted oil
both Parties, and by the fear of his declaring againft oni
Of them, he remains Arbitrator of others, and Mafterol
himfelf.
And as a Neuter neither purchafes Friends, nor/^'^'
hhnf elf from Enemies \ fo commonly he proves a Prey^'
the Vi6lor ; hence it is held more advantage to hazafd^'
a Congurft ivlth a Companion^ than to remain in a St^'^
'wherC'
:hap. IX. jfiDf € watte j( of Zvmtanh0tutvautt, hs
)herein he is in all probability of being ruined by the one or
he other.
But Princes that are pozverful^ have ufed generally to
•referve a Neutrality ; for whilft Petty Princes and States
juin themfelves by War, he fortifies himfelf with means^
nd, in the end, may make himfelf Judge of their Dif-
srences.
On the other hand it hadi been conceived that Repub-
icks that are weak, what part foever they take, it will be
iangerous to them, efpecially if they are in the midft of
wo more powerful States than themfelves ; but experi-
nce hath made it appear to the contrary, that Neutrality
J more beneficial to a weak Prince or Republick^ fo that Much praai-
»' hey that are at War be not barbarous or inhuman. For al- ^^d by the
. hough a Neutrality does not pleafe either Party, yet in ^""^5^ oi^Q
ffed it wrongs no Man ; and as he doth not ferve, fo he peTify'states. ]
loes not hurt : befides his Declaration is referved till the
ifue of the War, by which means he is not obliged, by
iding with either party, to gain or lofe by the War.
X. But if the Neuter be preft by NecefTity to declare
1 1 limfelf, he muft do \tfor the moft powerful of the two Par-
I ies, following th^it Roman Maxim, That either they muft
, nake themfelves theftrongeft^ or be a Friend to theftrongefl :
So they of Strasbourg * declared for the Empire againfl: ^ . ^ ^
,( ;he French. On the other hand, if the Neuter fees, that Conful^ln'
I oining to the weaker, will balance the Power of the tus ad Achcsos^
(dronger, and by this Counterpoife reduce them to Rea- q.^^^ optimum
Ton; the fame hath been generally followed, upon the #^'^^«^«''«
Maxim, That the fafety of States confifvs in an equal conn- hello: imo nihil
I terpoife of the one^ ajtd the other % for as the greatnefs and tam alienum
I opulency of a Prince draws after it the Ruin of their Neigh- ^^^^^ 'veftris
I hursy it is wifdom to prevent it. ^j l^iavei
dignitate pnS'
m'lum'iji^Qris eriiii, Lucius lib. 35. S<rJpta Ammirat. difc, potit. /. 18.
K CHAP,
[ H6]
CHAP. X.
£>f t\^t gimmum'ttejs anD p^iUUQt^ of ^m--
ijairat)o?0, ana otl^er publics ^iniUm of
^tate.
I. Cy the Fun^ion of Amhajfadors
and Agenti generally conjidered.
II. Of the Difference betijoeen Or-
dinary and Extraordinary.
III. Of the ^alif cations and Mat-
ters requifite to be in fuch.
IV. Whether any but Sovereign
Princes and States may qualify
fuch, and njoho may not.
y. Of the Right of AmbaJJadorSy
honx) fecured by the Lwws Dinjine,
and of Nations.
"VI. Of Precautiotty ^whether the
fame may he ginjen to fueh not to
come^ and attempting againf fuch
interd'i^ion, honu to he dealt n.vith ;
and of the punijhment of tbafe that
fhall <violate them , by the Lains of
England.
VII. Ho'iv Princes and States may
goi'ern jhemfel'ves in reference to
their Reception or Refufal.
VIII. Whether Ambaffadors may be
fuhjeHed to Punifjment nvhen they
offend againjl the La<zvs of Na-
tions.
IX. Of proceeding againf them by
Princes and Repuhlicks at this day^
according to the La^vs of Na-
tions.
X. Whether pri'vileged in that State
or Country thro' <which they pafs
'without lawue ; andof the<various
Proceedings agai?iji them by fede-
ral Princes and States ^ illujlratii
in Precedents and Examples.
XI. Of proceeding againfi then aC'
cording to the Laws o/'Englaij^,,
XII. Where they forfeit their Pru
<vilegey according to the Laavstf
England, in things Capital. ^'
XIII. Where prefernjed in Matters
ordinary not malum in fe.
XIV. The Office of a publick Mini-
fiery 'what it includes in Matters
Cinjil for the King and Natita
wohom they reprefsnt.
XV. Whether the Hoi fe of an Am-
baffador can he a SanSiuary to of-
fendorsy or that he may exercife
Royal furifdiSiion o'ver his tron
Domefiicks and Vaffals.
XVI. Whether the Goods of an
Ambaffador are fubjeSi tofeizurt
for Debts contraBed by himfelf.
XVII. Outrages cotnmitted by Am-
baffadors y niuhere a Forfeiture of
their pri'vilege.
XVIII. Of puniffment on thofe that
fpall offer Violence to their fn-
fans.
XIX. Obfervations touching the Im-
munities and Goi'ernments of tht
publick Minifiers ofYcmzQ.
XX. Hoijo introduced by the Laws
of Nations.
XXI. Wars ijohether jufi for Viola-
tion done to publick Minifiers,
1,
Coke A.lnfiit. ^' A ^ Amhajfador and Agent is the Tame thing, if
fol. 153. ZjL ^^- confidcr only the Fundlion of their Charges:
Agents are only in this they differ ^ an Agent hath charge to repre-
kni
c H A p. X. SDf giml)affatio?3S. 147
fent the Affairs only ; but an Amhaffador ought to repre- generally ufed
fent the Greatnefs of his Mafter^ and his Affairs. ^^^J.^" ^^'^re ^
- , cion that the
Ambaflador will not be honoured as he ihould be ; therefore the french Kings of late
Years have no Ambafiadors in the Emperors, Court, bat Agents, becaufe of the Com-
'i petition for Precedence betwixt him and Spain,
\ '^n . . .
II. Ambafiadors are in two Capacities, either Ordi-
nary or Extraordinary : The Ordinary or Lieger Ambaf*
li fadors, are thofe who are commanded to refide in the
ii Place whither fent, unlefs they receive Letters of Revo-
cation *, and as the time of their Return is indefinite, ^o
their Bufmefs is uncertain, arifing out of emergent Occa-
I fions, and commonly the Protediori and Afi^airs of the
I Merchants, is their greatefl: Care. The Extraordinary
! or fro tempore are thofe that are employed upon fome par-
\ ticular great Affairs, or Condolements, or Congratula-
tions, or for Overtures of Marriage, ^c. Their Equi-
page is generally very magnificent and illultrious, and
they may return without requefl:ingof Leave, unlefs there
be a reftraining Claufe in their Commiffion.
III. An Ambafiador or Agent ought to be converfant
in all forts of Hifi:ory, reading with Judgment, and
weighing all the Circumflances of Adlion which are there
reprefented, by which he will be qualified to know (but
efpecially of that Country whither he is fent)
- 1. TheEflablillimentof Eftates,
^ 2. The Rights of Limits. -
3. The Genealogies of Princes.
4. The Pretenfions of Kings upon the Eftates of
others.
5. Their Forces, Means, Alliances, and manner of
living. Perfonally he muft be
1. Refolute and Couragious in that which he hath
wifely deliberated.
2. Secret in Affairs of Importance.
3. Difcreet in his Speech.
4- No Detradlor or Evil Speaker of any King or
State, but more efpecially of him or them^ with
"whom he remains. -
K 2 5. ^^^
0
148 ®f gittlMlfatlO;^* Book I.
5. One that will fpeak freely of his Matter's Pretenfi-
ons, if there be a Queftion to maintain them.
The Trum- IV. By the Laws of Nations, none under the Degree
peter that ^f ^ Sovereign Prince can nominate or fend any in that
Letters Vrom Qi'^^^^Y > ^^^r Can any Subjedt fend or receive any Ambaf-
the Maid of f^dor, be he never fo Great 5 if a Viceroy doth it, it is
Orleans to the no Icfs than High Treafon ; and fo it was declared when
Earl of Sujolk jj^^ Scots^ inconfulto Principe^ fent Lowden and others in
arfd the Rea- Q^^^'ty of private clancular CommifTioners, to treat with
fon of that the French King Lewis the Thirteenth, in the Name of
was, becaufe the whole Nation for Afliflance, the King would not ad-
he came from ^^a^ qj. |^g^j. them. So did Queen Elizabeth v/hen CM}?^
Prince nor f^^^ AJfonvilk Came into England in Quality of a Minifter
one commifTi- of State, fent from the Duke of Alva then Governor
onated, or ca- of Flanders^ fhe refufed to admit him, he not having
pableof fend- ^^y Commiflion or Credentials from the King of Spain,
pe?er. GrTw- '^^^ ^^^^^5 ^^^ Eledlors and Princes of Germany have ob-
/o«'sHiftory tained the Privilege of fending, and the Reception of
of France, AmbafTadors, * but that is limited only to Matters
/e/- 326. touching their own Territories, and not the State of the
^ Empire. And fo likewife the Hans Towns may do the
GermaV?i[ti- ^^^^ ' ^^^ ^^^Y ^laim the like Privilege, they being free
ces may have Imperial Cities, and partake of the fame Regalia's, either
fuch a Prero- by Prefcription or by Grants from former Emperors,
gative, but It vvhofe Neceflities enforced them to part with fuch Royal
IS jecunano pIq^^j-s of the Empire; and generally they + fend for
tantumfure. Airr^i i t-»/- r
Et qui jus mit- their Ambafiadors always two Perfons, one or great
tendorum he- Birth, and that hath been a Soldier, to maintain Decency;
gatorum fecun- ^^^ ^^ ^^^^ ^ Do6lor or Lawyer, to regulate Affairs
inhlCnu ^^^^^ Learning, and by the Pen.
mlttantur Le-
gatinon de Rehus uni-verfum ccncernentihus hnperiufiy fed tantum fui Territorii rationt ] w
£m7n ipjis intuitu tctntum datum, ultra igitur tertriinos non eji procedendum, Jieret enimam
fr^judicium Impfratorl, iSc. Kirknerus §.25. Memorable was that of the Siviizfi)
v/ho fent a Meflage to the French King, that he ihould not fend them an Ambaffador
with ftore of Words, but a Treafurer with Plenty of Money.
■J Monmouth'' s Hi (lory oi France ^ fol. 27, 28.
V. The Right of Ambafiadors is fecured both by the
Safeguard of Men, and alfo by the Protection of theZ^o'
Divine ; therefore to violate this, is not only unjuft^ but
Pompon. Leg. impious too : And as Prote5fion is given to the Legates o\
jiquisD. de Supreme Rulers by the Laws cf Nations \ fo by the Cm
l^gationihus. ^^^ .j^^j.^ -^ ^ Proteftion likewife for Provincial U-
Chap. X. €>f atttbaflabO^g^* 149
vrateSy Heralds^ and Confuh, This Right of Legation
was originally provided, faith Livy^ for a Foreigner^ Liv. Uh, 16.
not a Citizen ; yet in Civil Wars, NecefTity fometimes
makes Place for this Right befides the Rule, as when the
People are fo divided into equal Parts, that it is doubt-
ful on which Side the Right of Empire lieth, as that
unhappy Spot of Flanders \ or when the Right being
much controverted, two contend for the Succeflion
X.'Q\kitT^hrone \ for in this Cafe one Nation is reckoned
as two ; and fo was the State of England^ when the Houfes qjered^in^a
of Tork 2ind Lancqfier contended for the Crown ^ properly folemn War,
then called Commiffioners : Nay, this Right of Z^^^//^;? and deprived
hath been fo preferved, that the very Meflengers of^^.^^^^^^
Rebels have been protected, as were thofe of ^^^/^^-^ ^vi'tlf oth^r
by Philip of Spain, So great a Refpe6t have Nations Royalties,
had in all times to fuch Men, that even * Traitors,, lofe the
nay Pirates and Robbers^ who make not a Society, ^'S^^ ^^ p^'
nor have any Prote6lion by the Law of Nations^ and ^^^i]iis de-
with whom neither Faith nor Oath (as fome conceive) tained the
may be kept. Faith being given them, obtain the Right Heralds of
of Legation, as once the Fugitives in the Pyrenean For eft ^^'/^«^.whom
XA heconquer'd.
^^^- * C. Pooh a
Traitor fled
to 'Rome't the Vofe fent him AmbafTador to the Trench King, of whom the King of
£»^/flW demands his Subje'51, fed non pra'valuit. Coke Injiit. 4. fol. 153.
VI. Ambajjadors may by a Precaution be warned not
:c.to come j if they dare, they fhall be taken for Enemies ; Lucas'^ Rep.
but once admitted even with Enemies in Arms, much 4- 5-
more with Enemies not in adlual Hoflility, have the
Proteflion and Safe-guard of the Laws of Nations ; and
therefore their Quality being admitted by Safe-condud,
they are to be preferved as Princes ; and fo it was declared Rot. Pat. 5.
in Parliament^ where- the killing of John Imperial^ i^.3,«»».i8,
AmbafTador from the States of Genoa^ was High-Treafon,
Crimen Ufa Majeftatis,
t So likewifeof ^. de Walton^ the King's AmbafTador,
Nuttcium Domini Regis miffum ad mandatum Regis exequen^ t Legatus ejus
dum^ who was murdered by one John Hill, which Qf- '^'^^^J'^^f^^
fence was adjudged High-Treafon, and accordingly he "^^ hlmranJul
was drawn, hang'd, and beheaded. epfuutillecu-
jus njicem ge-
^^.h ^ LegaiQs 'violar^ontrajus Gentium ej}, 22. v^s;^//. 49. Note, This was three
^ K 3 Years
1 50 ©e ambalTaDO? 3'. Book i;
Years before the making of the Statute of 25. £. 3. ^«<y/-^ if fuch a Prorfjc- is within
the Statute at this Day.
^i violarit And by the Julian Law, he that violates AmbafTadors
JuUade^r ^^ S^^^^y. ofp^t)lick Violence-, that is of prollituted Faith
iublica tens- ^^ publick Authority, and of a Breach of the Laws of
iur. Nations : And by the Pontifical Law, it is no lefs than a
Piacle, and to be interdided from the Benefit of holy
things. Philomela fung a fatal Requiem for the bloody En-
tertainment which fhe gave the Ambafladors of Frederick,
Barharojja^ the Empe'ror having fent them to treat in or^ ,
der to Peace -, but they inftead of that avowed the Adion'
Tulhrh Holy of thcfe that murdered his Ambalfadors : The offended
War,/. 3. C.4. Emperor having taken the City, razed it to the
Ground, and executed all the People therein as Rebels
and Traitors againft the Laws of Nations.
Vn. On the other Hand, AmbafTadors may not al-
'^ays be received, though they ought never to be rejeded
without Caufe \ for there mayl^e Caufe from him from
"whom they come, as the Roman Senate would not admit
of the EmbafTage of the Carthaginian^ whofe Army was
Camcl£n\^n\. ^^^^ ^" ■^^^6' > ^^^ ^j^ig oi Spain ^ thofe o^ Plolland -, and
Daniel's Hi- the then Pope^ the AmbafTador of Henry the Second after
ilory of Henry the Murder of Becket Archbifhop of Canterbury : So like-
2. Caro/us ^,jrg f^Q^^ j-j^^ y^j-y Perfons that are fent, as Tbeodorus ih
Gall^^, Veni ^^h^ifit whom hyfwiachus would not give Audience to ;
ioru7n, & Flo- and Mr OJii-er^ Lewis the Eleventh's Barber, whom they
rentinorumad of Gaunt refufed : Yet Matthceus Palmer ins ^ an Apothe-
^dkZ^uml'if- ^^^y ^^ Florence, had better Fortune than the French Bar-
Joi dedudjuf- b^^ ' f"^^ he being fent in Quality of AmbafTador to Alphon[(i^^
Jit in locum Khg of Napks^ and having acquitted himfelf elegantly^'.
^uiacomitatu^ and wlth much Generofity at his firfl Audience, the King^i
fuoaoeffeutri' {.^vi^g Information that he was an Apothecary, faid, ^f^
ria. Guic. I. ^^^^ /^'^'^ Z"^ fpeciak dt FiCTcnze^ qtialt debhono ejjere gh Medh
iS.Be//aius ci ? If the Apothecaries of ^lox^nct are fuch^ what Jhall list
^•3' think of their Phyficians P
So likewife where the Caufe of fending is fufpedled, in
reference to diflurb the People, or with Intentions rather-
to fow Sedition, than to conclude a Peace (if fuch be theii*
Errand) or not honourable, or unfeafonable. As for thofe
afTiduous Legations which are now in ufe, they may with
very good Right be rejeded , for the no NecefTity of them
appears
: H A p. X. M awftafifafio^g* 151
ppears by the antient Cuftom whereto they are un- Bacon'sH.
,nown, which made Henry the Seventh admit of none. ^^^*
The Venetian having admitted Henry the Fourth of * ^^^^
'France his AmbaHador, yet thay interdided him * to mld^'o'ipatin
ome with the other Ambafifador to the Chapely till the i^is 353 Epi-
uno- was reconciled to the C^z/r^i? ^/ Rome. ftle.Co/f^^.
vlll. By the Laws of Nations, only unjuft Force is kept ^-^^l^' ^°^*^
^ 11 rom the Bodies of Ambafladors ; for if the Laws of Na-
'ons be broken by him, he is fubjed toPunifhment : Yet ^^^Tju^^^^^^
;, he Opinions of Nations, and Men eminent for Wildom,.X,^X.'^flX-
ive been doubtful in this Point, and Precedents on both rum Legates
iides have been avouched : One which feems to refute <^ontrajus Le.
J hat Pofition of punching fuch Minifters of State : The ^^^fX/.l''
p| Vmbaffadors of Tarqiiin^ who had committed Treafon at huityCotV.
lome^ and as * Livy obferves, were in the State of Ene- »i^»«. Re/p,
nies; yet the Right of Naiions (as he calls it) prevailed fo 32. «. 29.
ar as to preferve them^ though in a Cafe of lioftility. On ^^^^^''f^^A*
he other Hand,, f Saluft obferves, that Bomilcar^ one of <:^,^/6. i m\
he Carthaginian Ambafladors, who cam.e to Rome on the Scf. i. c. i.
)ublick Faith, was adjudged Guilty^ rather (faith he) hy the * ^^n^am'
Rules of Equity, than by the Laws of Nations : Equity, that '"S/fr^lt'h^
s the mere Law of Nature^ fuffers Punifhment to be exadl- pumhcQef-
:d where there is found a Delinquent, but the Laws of fent,justam£77\
Nations except the Perfons of Ambafjadors : for certainly ^';^^*'«^^ ''^^'
;heir Security out- weighs the Profit arifmgfrom Punifhment^ 1^^-^
»vhich may be inflided by him that hath fent him fif he gis ex equo
3e willing) if unwilling, it may be exadted of him as an bonoqueqnam
Approver of the Crime. ex jure Gent,
^ Bomitcar co-
mes ei qui Ro.
mam fide puhlica venerat. An Enemy Is board to whom they are fent ; but their
Privilege obliges not thofe through vvhofe Bounds they pafs without Leave ,• for if
they go to, or come from their Enemies, or make any holliie Attempt, they may
be flain. Lin), lib. 26. "*
IX. Again, as Ambaffadors are not to render a Reafon
of their Anions to any other ^ but to hir4 by whom they are r .- >
II lent j 10 'It IS impoiiibie, by reaion or various Interefis c ig. §.4,
(an4 other Secrets of State, which pafs through their 4» ^ 5. *
jj Hands, but fomewhat may be faid, which bears a Show '^^^'''^^>^^'*-
|or Face of Crime j (which perhaps may prove orherwife) 'h/at'Zaor^
\ yet the examining and tracing of the Truth, may be of a taiefn\e°S^ ' '
4ngerous Confequence -, and therefore if th,e Offence be -^^. ^«//. C
^ '' K 4 fuch
152 iSDf amfcaffaijo?0* Booki;^
fuch as may be contemned, it is ufually to be diffembled
or connived at, or elfe the AmbaiTador be commanded to
depart the Realm ; and if the Crime be cruel, and pub-
Coke Injlit 4. lickly mifchievous, the Ambafiador may be fent home
foL 152. i^jth Letters of Requeft to his Mafter, to inflid Punifh.
ment according to the Offence : So hkewife in the Precau-
tion of a great Mifchief, efpecially publick, (if there be
no other Remedy) AmbafiTadors may be apprehended and
Sic Carolus exccutcd ; and if they oppofe by Force of Arms, thev
DucisMedlh. may be (lain.
nenjts ut juhdi-
ti fiii impera^vitf ne a Comitafufuo ahederet, Guicciard, in did. jam loc. Vide Camb-
den'j Eliz, Anno 1571. 15S4.
Co. \Infi.fQl. In the Bifhop of Rofsh Cafe, An, 13 Elix. the Que-
^52* flion was. An Legatus qui rebellionem contra Principemd
quern legatus concitat^ Legati privilegiis gaudeat^ i^ non ut
hcftis pcsnis fubjaceat ; and it was refolved. That he had
loft the Privilege of an Ambafiador, and was fubje6l to
Punifhment ; nor can Ambafladors be defended by the
Law of Nations, when they commit any thing againft
the State or Perfon of the Prince with whom they
refide.
c ( f the ■^' "^^^ ^^^y Ambafiadors are in Safety in their Enc-
Ambaffador ^ly's Countries, and are to be fpared when they commit
of Mufccvy. Offences, is not fo much for their own or Mafterh fake,
Lucas s Re- i^i hecaufe without them there will never be an End, of Ho-
ports, 4. 5. j}iiiiy^ f2or Peace after War : Neither is the Name or Par-
fon of an Ambaffador fo inviolable, either in Peace or in
time of War, but there may be both a convenient time
and a good Occafion to punifh them, and this ftanding
with the Laws of Nations, as may appear by thefe fol-
lowing Examples.
Thucyd. lih. 2. I. The Law does not pertain to them through whofe
Jppiande Bel- Bounds Ambaffadors pafs without Leave -, for if they go
li AthlnienPMm ^^ ^^^"^ Enemies, or come from their Enemies, or make
Socit legatoi ^"y hoftile Attempt, they may be flain : So the Alht-
Syracufanorum nians did to the Ambafladors between the Per/tans z"^^
mijfosadCi'vi- Spartans ', the Illyrians to the Ambaffadors between the
';;;; «//^ ce- -^p^^^ ^^^ Romans,
2. The Emperor Charles the Fifth, advertifed of the
League,made ag^^inft him, would. not difmifs the -Ain-
^.,, " ' balladors
inaflkdors of France^ England^ and Venice, till his own ^^ Gallorum
Ze in Safety, but he fets Guards upon thofe of France, ^f J"^^^'" ^':
were in >:3dici^, r j o j ^i • ^,i^^^^* q^o^ ««
r^/(^, and Florence, caufing them to be condueted thirty p^j^ ^^^„.
Miles from his Court, with a Prohibition not to fpeak to cepere occide-
them, nor for them to write. As to him of Milan, as runty ^mdejw
his Subje^l, he was enjoined not to part from Court \ but /^''', f ''""''^'
as for him of England, there was no Alteration. Camden Eliz.
■^ 0. The Venetians havings deftroyed fome of the Cor- Anno 1571.
rm>j Amurath commanded Luigi Contarini, then Bailio Hiftory of
Jr "* . 1 • -r J the Republictc
of F^«/rMo be impnfoned. , ,. , . of FenL. foL
A. The Seigniory of Venice underftandrng that certam 450,451,
Traitors, who had revealed their Secrets to the Turk, were
fled for Protedlion into the Ploufe of the French Ambaf-
fador at Venice, fent Officers to fearch the Ambaflador*s
Houfe; but the Ambaffador's refufing them Entrance,
the Senate commanded certain Cannon to be brought out
of the Arfenal to beat down his Houfe, which when he
faw planted, he furrendred up the Traitors.
J*"" ^5. The Ambafladors of Tarquin, Morte affigendos Ro- '
mani non judicarunt, {3 quanqiiam viji funi ut hojlium loco
ejjmt, jus Gentium tamen valuit.
6. The State of Rome, though in Cafe of mod Capital Good^h de
Crimes, exempted the Tribunes of the People from Que- ^^i- ^"^^i-
(lion during the Year of Office. ^''"'
7. The AmbalTadors of the Protefianis at the Council Aaa trident,
of 'Trent, divulging there the Bo5irine of the Church, Gonalu.
contrary to a Decree there, whereby it was enadled a Crime
equivalent to Treafon, yet flood they protected from any
Punifhment.
It is generally confented by all the Civilians, That Le- Pompon. Leg.
.gatis de jure Gentium indicium eft, ^ eorum corpora falva ^^^'\ ^' *** ^^
fmty propter necejjitatem Legationis, ac ne confundantur Jura ^^
commercii inter Principes,
8. Viva, the Pope's Legate, was retrained by Henry Benedi^. /«
the Second for exercifing a Power within his Realm, not ^i^^ V.en. 2.
allowe^i or admitted of by the King, in difquiet of the
State, and forced to fwear not to a6t any thing in praju-
dictum Regis vel Regni.
On the other hand, it hath been anfwered, That they
are by the Laws of Nations exempted from Regal Trial ;
all A6lions of one fo qualified, being made the Adls of
' his Mailer, or of thofe whom he reprefents, until he or
they
154 flPf Slmbaffatio?st. b o o k i.
they difavow ; and Injuries of one Abfolute Trince or ^tait
to another, \% fa5lumhoftilitatis^ and not Treafon 3 the Inv
munity of whom Civilians colle6t, as they do the reft of
their Grounds from the Pra6lice of the Roman State^ dc*
ducing their Arguments from thefe Examples.
Colloquium 9. The FabU Ambafladors from Rome^ were returned
Machiav, 1,2. fafe from the Chades^ with demand of Juftice againft them
^Liv, 2 Doc, ^^^y' ^^^^^°^g^ ^h^y ^^^ ^^^" taken bearing Arms with the
EtrurianSy their Enemies.
Sir Robert 10. King Edward xht Second of England^ fent amongft
Cotton's Poji- others a French Gentleman Ambaflador into France \ the
fsume. King upon this arraigned him as a Traitor, for ferving
the King of England as Ambaflador, who was his Enemy
(but the Queen procured his Pardonj.
Hott. Scaccar. i j. Henry the Third did the like to one of the Pope'%
Tfw'^im'^' Ambafladors, his Collegue flying the Realm fecredy, fear-
vj.frmi. -^g^ timens felli fui^ as the Records have it. Edward thi
Firft refl:rained another of the Pope's turbulent AmbalTa*
dors, till he had (as his Progenitors had) informed the
Pope of the Fault of his Minijier^ and received Satisfac-
tion for the Wrongs.
12.- Henry the Eighth commanded a Fr^;?^i> Ambafla-
dor to depart prefently out of the Realm, becaufe he was
the profefled Enemy of the See of Rome.
Berhert^ 13' Lcwis de Prat., Ambafl'ador for Charles the Fifth,
Hift. H. 8. was commanded to his Houfe, foraccufing falfly Cardinal
Mko 1523. Tl^oolfey to have pracbifed a Breach between Henry the
Eighth and his Mafler, to make up the Amity with the
French King.
14. Sir Michael Throgmorlon^ by Charles the Ninth of
France., was fo ferved, for being too bufy with the Prince
of Conde's Fad ion.
15, The Pope's Ambaflador at Paris was arraigned,
for prafliflng certain Treafons in France againfl: the King,
in the Parliament of Paris, and was found there guilty and
committed to Prifon.
Cafnhdefis i^* Doclor Man then Ambaflador was taken from his
Hift.Q^ £/;"«. Houfe at Madrid in Spain., and put under a Guard iot
J. 1567. fliraiter Lodging for breeding a Scandal (as the Conde^cn
faid) in ufing by Warrant of his Place, the Religion of
his Country, although he alledged the like permitted to
Guzmap
Guzm^-n de Silva^ their Ambailador in England^ ds\d to the
^urk no lefs than in Spain,
ij, Francis the Firll, Kmg of France, fent C^far Pre- Gukdm-d,
1 r^/i/J and Anthony Rincome, Ambafiadors to the Turk ; //^. 18.
' they were furprized by the Armies of Charles the Fifth
on the River Po in //^/y, and were put to Death •, the
frcnch King complained that they were wrongfully mur-
dered; but the Emperor juftified their Death; for thac
the one was a Genois, and the other a MilanoiSy and his
Subjects feared not to ferve the King his Enemy.
18. Henry the Eighth being in a League with the French, Herherrs
and at Enmity with the Pope, who v/as in League with ^^^* -"• ^^
i:\^ French King, and who had fent Cardinal Pool to the
Ymch King, oF whom King Henry demanded the Car-
nal, being his Subjed, and attainted of Treafon, fed
non pTievaiuit.
19. Samuel Pelagii, a Subjed to the King of Morocco^
pretended that he v/as an AmbafTador fent unto the States
General of the United Provinces ; he came to them, and
accordingly they treated with him, afterwards he de-
parted ', and being upon the Sea, he there took and fpoil-
ed a Spamfo Ship *, and then came into England \ the Spa-
nijh AmbafTador here having received Intelligence of the
fpoliation, caufed his Pcrfon to be feized upon, intend-
ing to proceed againil him as a Pirate, and imprifoned
him •, and upon Conference with the Lord Coke, Baderidge,,
and other Judges and Civilians ; they declared their Opi-
nions, That the Caption of the Spaniard'^ Goods by the .
Morocco AmbafTador, is not in Judgment of Law a Pira-
OS in regard it was apparent that the King of Spain and
the King of Morocco are Enemies, and the fame was done
in open Hojlility ; and therefore in Judgment of Law
could not be called Spoliatio, fed legalis Captio ; and a
Cafe out of 2 i^. 3./?/. 2. was vouched, v/here a Spanijh
Merchant before the King and his Council, hi Camera Scac-
f«nV, brought a Bill againft divers Englifhmen, therein fetting
forth quod depradatus ^ fpoUatus fuit upon the Sea, juxta
partes Brittani^e, per quendam Virum helliccfam de Britan-
^^(^dttiuadam Navi, and fo of divers Merchandizes there-
"!» which were brought into England, and came into the
Hands ot divers Engliflimen, naming them, and fo had
Procefs
156 fiDf ambaffaBo^iS. Booki
Pioccfs agalnfl them, who came in, and pleaded, That
in regard this Depredation was done by a Stranger, and
not by the Subjedls of the King, therefore they ought
not to be punifhed ; in regard that the Statute of 3 1 /^, 5
Cap. 4. gives Reftitution by the Chancellor^ in Cancelkrk
fihi vocato uno Judice^ de uno Banco vel altero \ and by the
Statute o^ 2y Ed. 3. cap, 13. that the Reftitution maybe
made in fuch a Cafe upon Proof made, by the Chancellor
himfelf without any Judge ; and upon that Cafe itwasre-
'iBulflrodez^, folved, ^od quifquis extrancus, ^c. who brings his Bill
iRo.RepAj^. Upon this Statute to have Reftitution, debet probare fjjM
tempore captionis fuit de amhitia Domini Regis \ and aifo,
'quod ipfg qui eum ceperit ^ fpoliavit^ fuit etiam fuh obei-
entia Regis, vel de amicitia Domini Regis, five Principii jw-
rentis tempore fpoliationis, £5? non inimicus Domini Regis fivt
. Principis querentis, qui fi fuerit inimicus .^ i^ fie ceperit k-
na, tunc non fuit fpoliatio, nee deprcsdatio, fed legalis captb^
prout quilihet inimicus capit fuper unum £5? alterum : the
Judgment of which Cafe was held to be Law, and there-
upon the Judges delivered their Opinions, that the Morom
AmbafTador could not be proceeded againft as a Pirate.
20. In" the time of Philip the Second o^ Spain, the^^
netian Ambaflador in Madrid protecting one Bodovario^i
Venetian, an offender, that fled into his Houfe, andde-
nying the Corrigidor or Jufiice, to enter his Houfe, where
the Ambaflador ftood arm'd to withftand them ; upon
Complaint made, the Ambaflador was removed unto ano-
ther Houfe, till they had fcarched, and found the Offen-
der; then conducing back the Ambalfador with all due
refpecl, a Guard was fet upon his Houfe to ftay the fur}'
of the enraged People ; the AmbafTador complaining to
the King, he remitted it to the Supreme Council: theyju-
llified the Proceedings, condemning 5^^<9i;^m to lofe his
Head, and other the Ambaflfador's Servants totheG/zfc
all which the King turned to Banifhment ; and to fatisiy
the xviO^Serene Republick, fent the whole Procefs to hip
de Mendoza, his AmbafTador at Venice, declaring by a pub-
lick Ordinance unto that State, and all other Princes, 'ih(^^
in cafe his AmbafTador s fioould commit any Offence unworlhil)\
and difagreeing to their ^alities and Profeffwns of Amhdjl^'
dors, they fhould not enjoy the Privilege of thofe Officers, U
be wmld refer them to be judged by the Laws of that Princt
c H A p. X. Of SimJiatolio^jS* j^y
or State where they then reftded^ and where they had injured. Sir Hen. Woot-
It was a great and noble Saying. ' T\!'^^^T ^^
21. In the Year 1568, Don Guhernon d*Efpes was or-^^^^Ti
der*d to keep his Houfe in London^ for fending fcanda- r^. . g- d /
lous Letters to the Duke d'Aha unfeal'd ; and in 1586, c,'//5«»s /^/
J)on Bernardino de Mendoza, was reftrained firft, and af- hum. and the
ter commanded away. Propofition to
XL The manner of proceeding againft them, accord- ^^^ZJ^^^^-
ing to the practice in England^ hath been conceived ne-
ceiTary to be, that fome of the Chief Secretaries of State
were fent to the AmbafTadors, and by way of advice, that
underftanding that the »common People having receiv'd
notice of, &c. " And that they cannot but conceive a
" jufl fear of uncivil carriage towards their Excellencies
{' or their Followers, if any the lead Incitement fhould
" arife, and therefore for Quiet of the State, and fecu-
" ring of their Perfons, they were bound in Lpve and
" Refped to their Excellencies to reftrain as well them-
" felyes as Followers, till a further Courfe be taken by
*' legal Examination, where the Afperfion began, the
*' fame being in their opinions the beft and the only way
" to prevent the danger, &c.^*
Sometimes, if the Parliament be fitting, the King ac-
quaints the Lords ^ and tlien departs -, wiio having had
Conference with the Commons^ conclude of a Mejjage to
be fent to the AmbafTadors, (either by requiring an account
of the matter or confining of them) the Perfons to be fent,
the two Speakers of both Houfes^ with fome convenient
number of either, having their Maces, or Enfigns of Of-
fices born before them to the Ambaffador's Gates, and
then forborn ; and then requefting Speech with them, let
them know that a Relation being made that Day, in open
Parliamefit of, &c. they were deputed from both HoufeSy
the great Council of the Kingdom^ to the which by the
Fundamental Laws of tiiis Nation, the chief Care of the
King's Safety, and the publick Peace and Quiet of the
Realm is committed ; and that they were no lefs the
iiigh Court of Juftice^ or Superfedeas to all others, for the
examining and punifhing all Attempts of fo high a na-
ture, ^c. if it carry truth ; and having executed their
Commiffion, conclude that the Houfes, to Ihew that re-
verence which they bear unto the Dignity of his Mc^fter
by
•158 ' €)f 9imbsiratio?0, : feookl
by their Mejfagc^ declare that they two who are never em-
ployed but to the King alone, were at that time fer\t, i^f
and if the Houfes fhall upon return of their Speakers con.
The Parlia- ceivc their Anfwers (if it be a Matter that requires it) art
ment not fit- fuch as may juftly deferve their being confined, they ther,
tmg, the Se- j^^kt an addrefs to his Mcijefty to confine them to tjieir
State may^fig- ^°'"^^^' reflraining their departure till the Prince or State,
pify the like, whom they reprefent, be acquainted with their offence!
if occafion. And fo it was done in 44 H. 3. to the Popeh Legates \[i
^^' England, and 28 E. i.
XII. If a Foreign AmbafTador, being a Pr^r^:^, comn\its
here any Crime which is conlra Jus Gentium^ as Treafoo,
Felony, Adultery, or any other Crime which is againfl eke
Law of Nations, he lofeth the privilege and dignity of an
The opinion AmbafTador, as unworthy of fo high a place, and may
of the Lord be punifhed here as any other private Alien, and not to
Coke, 4 Inftit. be remanded to his Sovereign but of courtefy.
foL 153, ^c. XIII. But if any thing be malum prohibitum by any
A(5l of Parliame7it, private Law, or Cuftom of this Realm,
which is not 'malum in fc Jure Gentium, nor contra Jus
Xjentium, an AmbafTador refiding here, fhall not be bound
by any of them ; but otherwife it is of the Subjeds of ei-
ther Kingdom ; for if a French Merchant or Spanijh Mer-
chant trades or imports any prohibited Goods, he mull
at his peril obferve the Laws of England •, and fo it was
adjudged Pafc. ^'^ Eliz. in the Exchequer^ Tomlinfon^ ^ui
tarn, verfus Henry de Vale ^ al. upon the Statute of 19
//. 7. Cap. 11. but if an AmbafTador imports any prohi-
bited Goods, e contra.
The Florentines having fent AmbafTadors to Charh
the Fifth and Clement the Seventh, being then at Bolon'id^
together with their Hon Hiold -fluff, they brought covert-
ly many rich Commodities to fell and traffick with, fup-
pofing that they might be free from paying the Gabel;
J-jiust A', but the Seachers of the Cuflom-houfe having difcovered
i^-S» it, they became objeds of laughter and mirth to the&*
lonians, and for that, as unworthy of the OfHce of Am-
bafTadors, were remanded home without Audience.
Sir "Thomas Challoner having been fent AmbafTador to
Spain by Queen Elizabeth, remitted a Complaint to the
Queen, that his Chefls had been fearched : upon which
the Queen demanded the opinion of her Council in the
point
Chap. X. SDf amfealTatlO^Jf* .159
] point, who upon the whole matter refolved the AiSlion
J into this, Legato omnia ^equi honique ferenda dummodo Prin-
Idpis Honornon dire^e violetur^ the very words of Mr Cam^
^ ^m An AmbafTador muft bear all things patiently, pro-
ided that the Honour of the Prince (whom he ferves)
J. DC not diredly violated.
XIV. The Office of an AmbafTador does not include a Leg.JiT, de
protedion private but publick, for the King his Mailer, %«./««a^
not for any feveral Subjedls otherwife than as it concerns ^^fa^^ij-
the King and his publick Minifters, toprotedl them, and §*^''"^^' ''^'-
procure their protedlion in foreign Kingdoms, in the
nature of an Office and Negotiation of State \ therefore their
Quality is to mediate and profecute for them or any one
dF them, at the Council-Table^ which is as it were a Couri
'}f State ; but when they come to fetded Courts, which do
md muft obferve efiential forms of proceeding, fcil. 'pro-
:iJI[us legitimos, they muft be governed by them : And
therefore in the Cafe of Don Diego Serviento de Acuna^ ^^rd Hohartt
AmhaJJador Lieger for the King o^ Spain, who libelled in the ^^^'/r. ^^i;
Mmiral Court as Procurator-General for all -his Matter's 68c.r^ii;.
Subjeds, againft one JoUiff d^nd 'Tucker, and Sir Richard 135, 173.
Bingley, for two Ships artd their Lading of divers kinds, Hard. 183. ■
Df the Goods of the Subjedls of the King o^ Spain gene- ^ ^!f' |^^' .
rally, and not naming of them addu5i ad Port de Munfter^ 260! Xlev. '
in the Preface of the Libel generally againft them all, and 25. i Fen,
:hen proceeds and charges them feverally thus ; That Jol- ^7o> ^08.
'//and Tucker Captain Pirat^e, in alto Mari belli ce di^as
Naves aggrejji funt, i^ per vim i£ violentiam took them,
ind that they were addu^^ in partes Hibernice, and that
coming into the hands of Sir Richard Bingley, he convert-
ed them to his own ufe, ('not faying where) and refufing
to render them being required, it was there held that a
Prohibition fhould go, for the matter is Triable merely at
the Common Law, ai^d that fuch a Procuration was not
^ood, though to an AmbafTador.
pon Alfonfo de Valefco Anibaflador from the Catholick
King, attached Tobacoes at Land here, which one Cor-
mn a Subje6l of the King of Spain, brought hither, and
file AmbafTador by his Libel fuppofed to belong to his
l^after, as Goods confifcated, as all other his Goods were.
■ Sir John IVatts the Plaintiff, in the fuggeftion, prayed a
*'P/'^^/teV», which was granted accordingly, for the pro-
perty*
i6o SDt ^nibaffaws. fiooKi,
peity of Goods here at Land muft be try'd by the Cmm\
Law, however the Property be guided ; and it was like,
wife rul'd, that if any Subjed of a Foreign Prince brin^
* Goods into this Kingdom, though they were confifot^.
before, the Property Ihall not be queftioned but at th(
Common Law, Don Alfonfo verf. Corvero, Mich, 9. ^
Hob, 212. Hill. 9. Jac, upon the like Libel by Don Peim
Surega Ambafiador for Spain,
XV. Whether an Ambafiador hath Jurifdidion over
* Difitngut Y{\s own Family, and whether his houfe be a San^uan^
ferme hac inre f. ,, . ^ ■ • i i i ,^ ^
folent aimina. ^^r all that fly into It, depends upon the conceffion of
ridc?arutamy\i\v[\ with whom he refides, for this belongs not to the
lib. 10. uhi Law of Nations -f ; and it hath been feen that an Ambaf.
Rex ^^^^""^ fador hath inflidled punifhment on his own Servants and
iraius paca/ur: Vaflals, as the Mufcovite did here in England ; but that
Vide eundem, muft be purely by concefiion, as the I'urk permits it to
lib. II. the Englijh Ambafiador at Conftantinople : But Fugitives
% ^r^Belltac ^^^^ ^^ ^"''^ ^^'^'^ Houfes, nay, their own Servants if they
Fadsylib.i%. ^^^^ greatly offended, cannot be drawn out by force,
§.4, 5, 6, 'J, without a Demand and Refufal ; which when done, it Is
then become as an offence in them.
Rexfacifneme- XVL Moft certain by the Civil Law, the moveable
iu regiumnv^.- Qoods of an Ambafiador, which are accounted an ac-
^^"TJcf":!.;,,!,,, ceffion to his Perfon, cannot be feized on, neither as a
'vafa comitefqi pledge, not for a payment of a Debt, nor by Omr or
fneos : yet an Execution of Judgment ; no nor by the King or States leave
^j^^^"^ where he refides fas fome conceive) for all coadlion ough;
brought and ^^ ^^ ^^^ ^^^"^ ^^ Ambafiador, as well that which toucher^,
left at the his necefiiiries as his Perfon, that he may have full fecuri-
Houfe of the ty ; if therefore he hath contraded any Debt, he is to be
Ambaffador, called upon kindly, and if he refufes, then Letters of ^^
lowed goodt ' ^'^^fi ^^^ ^^ S^ ^^ ^^^^ Mafiier * -, fo that at lafl; that courfe
and conceived may be taken with him as with Debtors in another Tern-
no breach of tory ; to fome this may feem hard, yet Kings, who can-
je^e^n^iiie "°^ ^^ Compelled, want not Creditors -, but the Lord Ck
Cafe^of iiw. ^^^nis to be of another opinion -f, for as to Contracts and
Colbert for Debts that be good Jure Gentium^ he mufl: anfwer here.
Tork Houfe,
Mich. 28 Car. 2. in Banc, Reg.
* Grotius, lib. 2. cap. 18.
-|- Cokej^. Injiit.fol. 153. Certain it is that none dareth prefume to meddle eithff
with their Perfons, Goods, or Servants, without leave had, the contempt of which haS
beenpunifhed with Imprifonment. Lucai 4. Vid. Stat, 7. J. th» 12. §. 5. —
XVII. I'
,Chap*X. S)t SimMK&HOtS. x6i
XVII. If an AmbafTador commits any private outrage
againft one of the Prince's Subjects with whom he refides,
unleft it be to defend the Dignity of his Charge, or of his
Mafter, it hath been conceived by fome not to be ju- *
. ftifiable before the Prince v/ith whom he relides ; (fay they)
there is a great difference between the Dignity^ and Au^
ihrily of the Prince in the Country of another Soveraign,
for he may well retain his Dignity^ but not his Autherity,
.Ufually Injuries of that nature being done, they have ad-
. mittcd debates at a Council of State^ where the Soveraign,
with whom the Minifter of State hath redded, being fatif-
fied, that Reparation ought to be made to the party in-
jured, he hath been ordered, or at lead requeiled, to
comply with the fame.
XVIII. But, on the other hand, if any private outrage
be committed by the Subjeds of that Prince with whom
he refideS) upon his Perfon, the Offenders may be fub-
jei^ed to punifhment. The Queen o^ Sweden having made
the incomparable Grolius Rafter he had efcaped by Provi-
dence out of Prifon, and by a greater from his Countrymen)
her Ambaflador with Lewis the Thirteenth, with whom Barkfeate In
he refided at Paris^ coming one day from St Germains, men.or.Grotiu
the Secretary of Ceremonies being in the Coach with him,
it chanced that in one place as they paifed, a great number
of People v/ere in the way feeing of an Execution, his
Pofiilion.2Lnd Coachman driving boldly through the Com-
pany, the Archers then attending the Execution with
Ihort Pieces, (concerned fomewhat angerly that the Exe-
cution was difturbed) made after the Coach, fliot his Po^
fiilion and Coachman^ and through the Coach, even ^
through his Hat : the matter coming to be examined,
the King ordered three or four of them to be hanged, buc
that Good Man firft pardoned them himfelf, and then ob-
tained the King*s.
XIX. The Republick of Vc7tice employeth generally
more Ambaffadors abroad than any other State, anH they
are as thofe of other Princes be. Ordinary a.nd Extraordi-
nary i the CommilTion of the Ordinary continueth for three
Years, but he who refides at Conflantinople is not called
AmbafTador, but Bailio^ redding there perpetually •, and
that Republick allows him a greater Provifion to fupporC
his Grandeur, than to any other, and by the Laws of Fe-
L nice
j62 M ^WltatCaJiOl^, BookI,
;//V(? what foe ver he expends is allowed him upon his ac-
counts without any examination : the which no other q[
their publick Minifters of State have like privilege.
• By the Laws of Venice there can be no extraordinary
AmbalTador employed, unlefs they have been Ambaffa-
dors formerly, and upon their return are ftridly examined
of their Comportment in their Legation, and are to dif-
^oditras de Re- covcr what Prefents they have received from the Prince
pub. lib. -J. or State to whom they were fent, the concealment of
which is of a very dangerous confequence.
Nor may any of their Ambafifadors receive any Prefer-
ment from any other State during their Legation. The
jacAug.Thu- Patriarch of Aquileia dying, Hermolao Barbara being there
Tua JuJufthi Ambaflador for that Republick^ the Pope conferred on him
Barbadico that Ecckjiajtical Dlgnily^ and made him a Cardinal \ which
T>nk.tolVe' being known at Venice^ notwithftanding he was a Perfon
^'^^^y/^^^o of great Merit, and had given notice to the Senate^ rich,
'"^ ' well allied, and had good Friends, they fent exprefs com-
mand that he fhould refign the Patriarchpoip^ otherwife
they would take from his Father the Prociirator'Jhip of St
Mark^ and confifcate all his Eflate.
But if fuch Ambaffadors have received any Prefent,
Gift, or Reward, from any Foreign Prince or Republick,
PauIusParuta and fuch Miniftcrs of State are thought worthy of retain-
7ib^''^' ^^'^' '"§ ^^^ i'^^m^^ fuch a Grace muil pafs by the Suffrage of
the Senate, to oblige them more to the benevolence of
the Republick, than to the bounty of any Foreign Prince.
The confideration of which put the fame generous fcrupie
into the Breaft of Sir Amias Paulet^ who returning from
Francis HottO' his AmbaiTy in France^ would not at his departure^reccive
man, fol. 23, from the French King the Chain of Gold which is given
^^' of courfe, till he was half a League out of Paris. But
more famous v/as the a6lion of Sir Leoline Jenkins, the
EngliJJj AmbafTador at Nimeguen, who, though after the
Treaty concluded, abfolutely refufed the French King's
Prefent.
XX. By the Laws of Nations, in the Reception of Am-
bafladors, thofe from a King are generally introduced by
an Earl or Count, thofe from a Duke or Republick by a
Baron •, nor are they to be allowed that Ktonour but only
at their firfl and laft Audience,
XXL Pro-
dnAP. XL ^t^bttttion, &c«
i6j
'■ XXI. Prophane Hiftories are full of Wars becaufe of
wrong done to Ambafllidors ; and in the facred Story is
extant tiie memory of the War which David upon that
Ground waged againll the Ammonites : nor doth Cicero
i^fleem any Caufe more juft againfl Mithridates ; and at
this day not only Lawyers *, but Divines f are all of the * q^q^^ i ^?
fame opinion, That a War cannot be more juftly com- r. i8. §. n.
aienced than for the Violation done to their Publick t Montague^
\K' 'CI w« Ads and Mo-
■ M 45°'
"" CHAP. XL
j)f ti^e ist'sijt of tselifierfng Pettong flcti fc|
gtjiotectton.
VII. Whether an innccent P erf on may
be defer ted and yielded y if War bt
threatned.
VIII. Whether an innocent PerfoH
refufedtohe delivered up ^ ought to
yield himfelf.
IX. Jf Charity in an innocent to
yield himfelf njuheiher Compulfiori
may be ufcd if he refufes.
X. Whether this ofdeli'verivg up doe i
extend to Soniereign Princes driven
out of their Country.
XI. Perfons running anvay woith the
Puhlick Revenuey wohere their Per'
fans and Goods ha've been feized
till reparation and fatisfaBion be
made.
\, Where Superiors may become cnU
pable for the Crimes of their
Suhje^s.
II. Offences by ivhom properly punifh-
tdy nuhether by the injured State
or they into nxihofe Territory the of-
ftnder is fled.
til. Whether Kingdoms and States
ought to deliver up Fugitives, if
required, or net. ^
IV. Where Perfons are fed, the pi a-
cts nubitber they come, ought to be
Afylums.
V. Honu dijlinguifhedy and vohen to
hefunijhed or delivered.
VL Whether an innocent Man may
he deferted aJid delivered up to the
enraged Poiver that demands him*
I. TT^Athers are not bound for the fault of their Children,
JP nor Mafters for thofe of their Servants ; nor Prin-
ces for the A6lions of their Subje6ts, unlefs they become
partakers in the Crime ; the which may be done in two
refpeds, by fufferance and receipt ; therefore if Princes
M fuffer or Countenance their Subjefts^ by Pidlures or
Libels, or otherwife^ to abufe another Nation or Common
'^^dth^ it is the fame as if they ihould authorize it. Bru-
ius to Cicero^ How can you make me guilty ? T'es., well
enough^ if it were in you to hinder it y but receipt may
admit of fome further fcrutiny.
'**^^ La II. Comwon*
Xeno inter-
ceding for the
Magnets to T,
^inius and
tne Legates
with him be-
foLight them
with tears : ni
unitis amcnti-
amcivitati
ajjignareni,
fuo quemque
periculo facer Cy
Liv. L 40.
164 (Df P^DteCttOn, &c. Book I
II. Commonwsalths being inftituted, it was agreed that
Faults of Particulars, which do properly belong to their
owA Society, fhould be left to themfelves and their So-
veraigns, to be puniihed or connived at, as they jud<^ed
mofl fit.
Yet that Right is not fo abfolutely left to them, but
Offences, which tend to the Deftruftion of Society or Go-
vernment, whereof Treafon is the chiefeft, may feem to
be excepted *, for if a Subjedl fhall commit an A61 tend-
ing to the Subverfibn of his Soveraign's Government,
the fame is an Offence that's fubjedl to an univerfal punijh-
meni, i. e. it is to be punifhed every where •, and the Go-
vernors into whofe Territory fuch fly, feem to have a Right
RolPsAhndg- Qf profecuting for the Offence : In Civil Adlions, whldr
l^^er'fcJs' ^^"^ ^^ Commerce that fupports Society, the Subjeds of
foreign Nations having juftly contraded Debts in their
own Country, may obtain Juflice in another ; by a ftronger
Reafon it is thought, that Princes or Republicks that have
received publick Injuries, have Right to require Punilli-
ment for the Indignity that is offered them, at leaft for
that which tended to the Subv^erfion of their Government,
and to have the Offenders delivered up.
For the |jj^ 'y^q Queftion is Illuftrious, Opinions grounded on
oftheCaufe ft:veral great Precedents have been both ways produced:
ought to pre- It hath been generally held. That thofc Kingdoms where
cede the Red- the Offenders are fled, ought to do one of the two, either
^f '° V ""* punijh them according to their Defer ts being called tipon^ or
dedere caufa ^^^'"^^ ^^^^^^ ^^ ^^^ Jiidgv.ient of the offended State \ others on
non cognita the Contrary \ moft certain it is by the delivering up^'n
Plutarch in underftood, to leave him to the legal Judgment of that
his Romulus. Prince or State, whom he hath offended : And fuch was
the Declaration of Ferdinand King of Spain^ who had been
Attainted by often requefted by Henry the Seventh to deliver up Ednud
At\ of Parlia- ^^ ^. p^^i g^^j ^^ ^^^^^^ j.^ig Subjea:, then fled for Protec-
Co. hji. foi. ^^^^ ^o that Prmce's Country, but was always reruled ;
180, but being continually importuned by Promifes that he
Ihould not be put to Death, caufed the Earl to be deliver'd
up to him, who kept him in Prifon, and conftruing his
^ promife to be perfonal to himfelf^ commanded his Son Henrj
imH. 8 ^^^^^ ^^^ Deceafe to execute him, who in the fifth Year of
Pepin receiv ^^^ Reign in cold Blood performed the fame. But the
ed, and would Malicc of that politick Prince the Father, and the uncon-
not deliver up troul^^^^^
iiCHAP.xi. £Df PjotectfOtt, &c* 165
'troulable Will of the Son are Precedents but of fmall thof* that
^ Force 5 the Example of which, not long after, gave the ^^^ ^^ ^|«»
^^ French King occafion to beware of trufling the latter with^^J^^^^p'^^^'^'^^
\ aSiibjedl of his on the like occafioh ; for Cardinal Pool not by Tyranny.
^ many Years after, coming AmbaiTador from the Pope Fredegar in
>lto the French King, they both being then in Amity, reh.Pep.Jn.
land Henry the Eighth in League with the latter, but in ^
i Enmity with the firft, requefted to have the Cardinal
i delivered up, but could not prevail, being doubly
* armed, as the AmbaiTador of a Sovereign Prince, (for
* fuch is the Pope) and in the Territory of a foreign
State. ^ "^ .
The Ifraelitcs required of the Benjamites to deliver up .
the wicked Men -, the Philifti'ries^ Sampfon, Cato gave his
Vote that C^ejar fhould be delivered to the Germans^ for
fpoiling them without juft Caufe. Nor are nocent Per-
fons injured, if they are either delivered up, or punifli-^
ed ; yet does it not thence follow that they muft be
delivered up or puniflied : The Romans delivered up thofe
that had done Violence to the Carthaginian AmbafTadors ;
yet the AmbafTadors of the Abajfines having been traite-
roufly murthered by one of the Templars at Jerufalem^
the Offender being demanded, that fo Juft ice might ht Tynui, lib. 20I
executed on him for the A<3:, the Grand Majler anfwered, ^^P- ^.S- ^««^
That he had already enjoined him Penance, and had di- ^*^^*
refted him to be ftnt to the Pope, but abfolutely refufed
to deliver him up.
IV. But then, and as in this lafl, fo in all other, the ^ ^^^ ^^^ ^^
Offender muft have committed fom.e publick Offence *, churches be-
as Treafon •, for moft certainly it extends not to private yond Seas for
Injuries, becaufe there is no Precedent that ever a War private Of-
v/as'begun for fuch, thou&h they may contribute much, fences, which
irir ,.1 1 ,/-.t#- -r.- r^re unjverial
but tor thofe which tend to the Subverfion or Rum or sanauaries,
a Country, they often have been delivered up *, Jugur- the Oifenclers
thao^ Bocchus in Salluft^ So Jhall thou at once free us from ^i^ve been
th fad neceffity of profecuting thee for thy Err or ^ and him ^l^^^^^:J^
for his Treafon. And by moft Writers it is agreed, PerdinLd
that fuch Offenders muft either be delivered up or pu- Lord Cham-
niihed, the Election is left to their Choice, into Jerkin xvas
whofe Territory they are fled ; though fome have ^ held, p^^'^^^^^^f
that in cafe of Protedion or Sanduary for fuch un- the Church
L 3 fbltunat-e and burnt, for
i66 tSit P^OteCttOtT, &c. BooKl
forcing a* fortunate Perfons, Princes do make their Countries'
Noble Virgin, jr^^^^^ ^_
Mariana, lib. •'■^ '
1 1 . Charles
"Duke of Burgundy delivered up to Lewis the Eleventh, the Earl of St Paul, Con-
ilable of France^ who flying to fome of his own Cities, obtained Letters of Safe-
Conduft 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 Cuftody, delivered him to
the King of Trance y who immediately after cut off his Head. Fhil. Comkis
I. 4. c. 12.
-f Ludo-vicus Pius the Emperor received thofe that Hed to him from the J?j.
man Churchy as Appears by his Decree, Anno 817. and Luther himfelf did not
want Princes to proted him from the Fury of St Peters Chair. Fide his CiJL
loquiums.
jT. ^intus Flaminius fent AmbalTador to Frufms King
of Bithynia^ for the procuring the delivering up the brave
but unfortunate Hannibal^ who accordingly being feized
Sir Walter on, / will now^ fays he, deliver the Romans of that Fear
Ralegh's Hift. i^Q^ich hath fo many Tears pojfejl them ; that Fear which mda
l/i^^'Is ^ ^^^'^ impatient to attend the Death of an Old Man : ,This
Vi^ory (?/" Flaminius over me^ who am difarm^d and hetrafi
into his Hands ^fhall never he numbered amongfi the reft ofkis
Heroical Deeds : No^ itjhallmake it manifefi to all the Nations
cf the JVorldy how far the aniient Roman Virtue is degentr&U
end corrupted ; for fuch was the Nohlenefs of their Forefa-
thers^ as when Pyrrhus invaded them in Italy, and was red]
to give them Battle at their own Doors ^ they gave him Know-
ledge of the Treafon intended againfi him by Poifon ; wherm
ihefe of a latter Race have employed Flaminius, a Man wk
bath her ef ore been one of their Confuls^ to praBife with Prufias,
contrary to the Honour of a King^ contrary to his Faith g^^
md contrary to the Laws of Hofpltality, tojlaughter or deliver
up his own Guefl. Then took a Draught of poyfon^ and dfL
V. Though Kingdoms and States are looked upon as
places of Refuge ; yet that mufb be underilood for thofe
that are perfecuted with caufelefs Hatred, not to fuch as
have committed that which is injurious to human Sode-
ty, or to other Men. Gilippus the Laccnian in Diodorus
lih. 13. Siculus^ fpeaking of the Right of fuch miferable Fugitives,
faith, They that introduced thefe Rights atfirfi^ meant the Un-
fortunate Jhould expe^ Mercy ^ the Injurious Punijhment — •
After — Thefe Men ^ if by the unjufl Defire of that which is
another's^ they have fallen into thefe Evils, muft not accuji
Fortune^ nor imfofe on themfelves the Name of Supplicant^
for
CflAP. XL M l&jotectton, &c. 167
for that hy Right belongs to them that have an innocent Mind^
mi dvnfe For time,
Carum occidifli, dum vis fuccurrere : nullum
Crimen habes -, manus eft ibi purior, ac fuit ante.
^\ii the Life of thofe Men full of wicked A^s^ Jhiit up againfl;
tkm all Places of Refuge, and leaves no room for Compaffion.
Cicero hath a Saying out of Demofihenes : We muflfhew Com^
puffion to thofe whom Fortune, not their own evil Deeds, hath
made Mlferable. And by the holy Law, when any one
had been flain by an Ax flipping out of another's Hand,
the Cities of Refuge were open : The moft holy Altar it
•ft If was no Protedion for thofe that had flain an inno-
'cent Man malicioufly, or had troubled the Common-
wealth ; which Law Fhilo explaining, faith, Unholy Men
have no Entertainment in the Holy Place. Lycurgus the Ora-
tor relates that one CalUfiratus, having committed a Ca-
pital Fault, and advifmg with the Oracle, received an-
fwer, Tioat if he went to Athens he [hould have Right : And
thereupon, in Hopes of Impunity, he fled to the moft
'holy Altar there, notwithftanding which he was taken
from thence, and put to Death by the City moft obfer-
vant of her Religion, and fo the Oracle v/as fulfilled.
Princes indeed (faith 'Tacitus) are like Gods, hut neither do
the Gods hear the Prayers of Supplicants, unlefs they he jufi,
.Such then are either to be puniflied or delivered up at
leaft J yet furely this hath been obferved to extend only
to thofe Crimes that touch the State, or at leaft are of a ^j^^y ^f j^^^,
very heinous Nature ; fometimics they are exprefsly ftipu- land lately
lated by Leagues to be delivered up •, however this is cielivered up
to be obferved, that fuch fort of Fugitives and Suppli- ^^^ ^^P^'^us
cants, be they Foreigners or Subjects, are to be protect;- Cook that
ed till they have been fairly tryed ; and if that where- had been ia
of they arcv accufed, be not forbidden by the Law of the wicked
Nature or Nations, the Caufe muft be tryed and adjudg- ^^^.^/^^^T^
ed by the Municipal Laws of that Kingdom or- State Countefs of
from whence the Crime doth arife. From which it may ^oi[fons ia
be obferved, that a Fault committed in England^ and Franc^^
the Perfon flying, and Requeft made ; yet, by Reafon
that none can by the Laws of that Nation be tryed but
f «• Pares^ nor then but in Perfon \ it will thence follow,
L. 4l th3..t
^
^^^ ©f ^tOttCtion, &c. Book I.
that fuch may feem out of the general Rule : However,
it may ftand with the highefl Reafon, that the Fad and
Proof being remitted over with the Requefl, there may
appear a jull: Ground for .the Demand.
VI. Whatever the Opinion of thofe Writers have beea
the Pra6lice of latter Ages hath feemed to incline other-
wife. Qnc'en Elizabeth demanded Morgan and others of
her Subjcds fled, into France^ that had committed Treafon
againfb her; the Anfwer of the French King was. Si quii
in Gallia machinareniur^ Regem ex jure in illos animadver-
furum \fin in Anglia quid machinatifueriyit^ Regem non pojje
de eifdem cognofcere^ [fj ex jure agere % omnia Regna profu-
gis ejfe lii?era ; Regum inlerejje, ut fui qui/que Regni libcrtO'
tes tucatM\ imo Elizahetham non ita pridem^ in fuum Re^*
^^Eli^.Camr nam Mount gumeriiim^ Principem Condceum^ iS alios e Genu
^it^^c'^l' Gallica admijijje^ (^c, and they were never delivered up:
JnL icSc* ^^^ ^^^ ^^^^ ^^^^ ^^^ returned by the King of Scotland^ %r
he promifed that he would tranfmit Fcrnihtirft and the^
Chancellor too, if they were convi6ted by a fair Tryal.
tiv. ^■^. 2 2. Perfeus King of Macedon^ in his Defence to Martim^
cap. 37. fpeaking of thofe that were faid to have confpired againft
Eumenes : So focn as I was admonijhed hy you^ and finding
the Men in Macedonia, I commanded them away^and chargd
them never to return into my Dominions, The Cry of the
Anno 1660. JRC^tl! ^aCtpt'S Blood, juftly procured them of Hollad
In the Alii- to deHver up the Regicides to the injured Succeflbr. And
ance between from the Crown of Denmark it was exprefsly ftipulated
\eb^\-^\66o ^^^y fl^LOuld be delivered in thefe Words : Item quod ft
provided for' ^^^^ eorum qui rei funt illius nefandi Parricidii in Regm
in the fifth C A R O L U M Primum heatiffim^e Memorise admijft^ ac k'
Article. gitime de eodem feeler e attinBi^ condemitati^ vel convi5fi^ (^c.
" If any of them who are guilty of the horrid Murder
«' committed upon King CHARLES the Firft of
BlefTed Memory, be either now in the Dominions of
the King of Denmark and Norway^ or fliall hereafter
*« come thither, that as foon as it fhall be known or told
to the King of Denmark^ or any of his Officers, they
be forthwith apprehended, put in fafe Cuftody, and
*' fent back into England^ or be delivered into the Hands
<' of thofe whom the King of Great-Britain fhall order
1^ to take charge of them^ and bring tliem home.
VII. Mod
ciAP.xi. ©f ^tmction, &c. 169
VII Moft certain it is, if War be threatned to a Na- That poli-
„on or" People, if they deliver not up the Offender, tho' -^^P'^-f^.
perhaps he is innocent, and that fuch is the Malice ot his ^,^^^ g^^e ^^^
Enemies, that they know they will put him to death, yet Scots a more
he may be deferted, efpecially if that Nation or Kingdom equitable an-
is inferior to others ; but then the fame ought not to be ^^'''^^2^
done rafhly. The Ifaliaji Foot that forfook the unfortu- ^a Bothnvell,
nate Pompey before all was loft, being afifured of Quarter flie anfwered,
from the vidtorious C^far^ were condemned by moft that that fhe would
reported the Story of that day. hlm^Tol'
fend him OMt oi England. CamhJen Anno i595»
Tope Alexander (in the mortal Feud between him and
the Emperor Frederick^ who favoured 05favian the Anti-
pcpe) fled difgui fed to Venice., the Duke and Senate being
jealous that the Emperor would demand him, fent an Em-
bafify to the Emperor to endeavour a Mediation and Peace,
which was no fooner offered, but the Emperor broke out
into a Rage, bidding them go home, faying ; " Tell your
" Prince and People, that Frederick the Rojnati ¥.m^txov
" demands his Enemy, who is come to them for Suc-
" coiir, whom if they fend not prefently bound hand
"and foot, with a fure Guard, he will proclaim them
" Enemies to him and the whole Empire^ and that there
" is neither Alliance or Laws of Nation which fhall
" be able to free them from, revenge for fuch an Injury, to
*' profecute which he is refolved to overturn all divine
" and human Laws, that he will fuddenly bring his Forces
•* before their City, and contrary to their expedlation,
*' plant his Vi^orious Eagles on the Market-place of St
" Marl:' This Mefiage being faithfully delivered, the Hiji, Relp.
Senaie decreed Arms^ Arms •, and while they were pre- ^7-/'' fl'"
paring, News was bought that Otho, the Emperor's Son, SkTof rT-
and General of the Cafarean Fleet, was entred the Gulph nhey Anna.
with feventy-five Gallies ; the moft valiant and religious Se- 1164.
\ kfiiano Cyani refolved to meet hitn, and having encountred
tij them on the Coafl of Iflria, defeated Otho, and all his Na-
I val Forces, taking forty-eight Gallies, Otho their Admiral
li and the refl either burnt or deflroyed ; he returned in Tri-
flumph for Venice^ and not long after Frederick became
"convinced, that Heaven fights the Babies of the Innocent,
and
lyo flDf Protection, &c. Book
and on his knees begg'd pardon of Alexander the Fu&itjy^
Fope,
Lewis the Eleventh of France required by Ambaffadon
of Philip Duke of Burgundy^ the delivering up of Sir 0//^^
de la Marche^ (who being a Burgundian^ had wrote (aj
was conceived) fomewhat againft the Claim of the French
to feveral Territories) upon a publick Audience at U^
they were anfwered by Duke Philips "That Oliver was5/^
ward of his Houfe^ a Burgundian hy Birth^ and in no refpeS
fuhje^i to the Crown of France ; notwithflanding if it could
be proved that he had faid or done any thing againft the
King's Honour^ he would fee him punifhed according..as
his faults fhould deferve.
VIII. But admitting that fuch an innocent Perfon ou^ht
not to be delivered up, whether he is bound to yield
himfelf ; by fome it is conceived he ought not, becaufc
the nature of civil Societies, which every one hath entred
into for his own Benefit, doth not require it ; from which
it follows, that though fuch Perfons are not bound to that
by Right, properly fo called, yet it doth not follow,
but in charity he feems bound to do it *, for there may
be many Offices not of proper Juftice, but of Lqve,
which are not only performed with praifes, but alfo can-
not be omitted without blame ; and fuch indeed is the
A61 of fuch a Perfon's voluntary yielding up himfelf, pre-
ferring the Lives of an innocent Multitude before hij
Uein de finlhm ^^^' Ciccro for P. Sextus, If this had happened tomej&il
3 . Fir bonus ing with my Friends in fome Ship, that Pirates furroundin^
i^fapiensy iff US fhodd threaten to fink us, except they would deliver m,
Legibus parens, ^ J qjDGuld rather havc cafl myfclf into the Sea to preferveL'
vton7gnarusl^u- ^^^ ^^^^ ^^ hring my Friends either to certain Death, or in-
iilitati omnium to great danger of their life,
plufquam unius
alicujus^ autfues confuUt. And in Li'uy there is a moll excellent Saying of fome M^-
^ans: Equidem pro P atria qui lethum oppefijjent pepe femdo audi'vi \ qui patriam fn ji
ferire a^uum cenferent, hi primi inventi/unt. Liy. lib, 45. ^^c^Z^,
IX. But whether fuch an innocent Perlbn may be
compelled to do that which perhaps he is bound to do,
may be a queftion \ rich Men are bound by the precept oi
Mercy to give Alms to the Poor, yet cannot be compelJ*^
to give : it is one thing when the parts are compared
among themfelves, another when Superiors are compared
\
Chap. XI. iSDf Protection, &c. 171
to their Subjedls ; for an Equal cannot compel his E- * leg. De/ert,
Qual, but unto that which is due by right ftridlly taken ; f^^^^^M>.3-
yet may a Superior compel his Inferior^ to things which p^3/ Pho^
Virtue commands ; in a Famine to bring out Provifions don: Fides agi
they have ftored up, to yield him * to Death that deferts njifadeditosmn
hi<j Colours, or turns Coward, to muI6l thofe that wear ex- ^if': ^^^j:'^^
"'^ ^^' 5 1 1 ,-1 -nr . • • 1-1 Statins judtce-
ceillve Apparel r , and the like. Fhocion^ pointing to his dear ^^^ ^^ ^
aucos
Friend Nuocles faid, Things were come to that extremity^ that aliquos mala
if Alexander /?<?///i demand him., he jhonld think he were to he f^^re, quam
delivered up. It hath Teemed that fuch an innocent Per- "^l^^m!^"'''^^
fon might be deferred and compelled to do that which
Charity requires ; but the late ROYAL MARTYR The Son of
feemed of another Opinion, when he came to die, in the ^^Tflf Tson
Cafe of the Britijh Protomartyr Strafford. of°fo ^great^a
Father, that
he contended with Anthony and Augujlus about the Empire of the World ; this Pojnpey
entertaining Anthony and Augujlus in his Galley, the Captain which commanded it,
demanded leave of him to weigh Anchor and to carry away his Guefts, and to make his
Rivals Prifoners ; he anfwered him, that he ought to have done it without telling him
of it, and fhoald have made him great without having made him forfworn : Certain-
ly, an honed Perfon will never be of the Mind of this Captain : therefore in fuch
extremities Counfellors, either for high advantages, or in the great neceffities of their
Trince (hould ferve their Mailers with their Eftates and Goods, but not with their
Honour and Confcience.
X. But this delivering up does in no refpe6t extend
to Sovereign Princes, v/ho are by Divine PermifTion un-
fortunately driven out of their own Country ; and there-
fore memorable is the great Treaty commonly called by
the Flemings^ Intercurfus Magnus.^ where there was an ex-
prefs Article againft the reception of the Rebels either of ' ^ H. 7.
Henry Nil, or of the Jrch-Buke of Burgundy by others, ^^^s^lve^h^^^^
purporting that if any fuch Rebel (hould be required by^^/. 162. *■
the Prince, whofe Rebel he was, of the Prince Confede-r
rate, that forthwith the Prince Confederate fhould by
Proclamation command him to avoid the Country, which
if he did not within fifteen days, the Rebel was to ftand
profcrib'd, and put out of Protedion. But a Prince, or
one that hath a Sovereign Power, and had been conten-
j ding for his Right, but Succefs not crowning his hopes,
j occafion^d his flight, hath always been excepted ; to de-
\ liver up fuch, is even againft Nature and the Majefty of
H Power ; and therefore it is very remarkable what at-
p tempts were made for E. 4., H. 7. nay in the very Treaty
of
y
172 ^t PjOteCttOn, &c. Book!
of Intercurfus magnus it is memorable that at that time Per.
kin Warheck was contending with H. 7. for the Crown of
Englmid by the name of Richard Duke of Tork^ youncrer
Son and furviving Heir Male of Edward the Fourth. My
Lord Bacon does take a particular notice, that Perkin
Warheck in that very Treaty was not named nor contain.
ed, becaufe he was no Rebel, but one that contended for
the Title. Afterwards when Perkin was fled into Scotland^
and there received by the Scottijh King, Henry the Se-
venth fent to have Perkin delivered up, and it was one
of the principal Inducements of the King to accept of a
Peace upon that condition, giving for an argument, that
Perkin was a Reproach to all Kings, and a Perfon not
protected by the Laws of Nations ; but the Scotch K
peremptorily denied fo to do, faying, "That he [for
fart) was' no competent Judge of Perkin' j ^i//^, but that be
had received him as a Suppliant^ protected him as a Perfon
fled for refuge^ efpoufed him with his Kin/woman, andaidd
Lord Bncon^s him with Arms^ upon the belief he was a Prince^ andthtrtr
Henry ^t ^^' foyg ^^ could not now with his Honour fo unripe and (in a
JO . -J , y^^^ j p.^^ ^ lyg ^pr)yi ^11 ^j^^j j^Q had f aid and done before^ aslo
deliver him up to his Enemies, This was fo peremptorily
infilled on by the Scotch King, that Henry the Sevenfh
was at length contented to wave the Demand, and condude
a Peace without that Article ; notwithftanding the King
of Scotland had often in private declared, that he fufpeft-
ed Perkin for a Counterfeit.
XI. Perfons that have wronged or defrauded Kings of
their Revenue, efpecially in England^ upon Letters of Re-
queft to thofe Princes whither they have fled, have bep
delivered up. ^,t
Some Florentine Merchants of the Society of the Prl^^
haldi^ being made Colledtors and Receivers of the King's
Cuftoms and Rents in England^ TVales^ Ireland^ and Gc.-
coigne, running away with thofe Monies, together with
all their Eftates and Goods, for Rome, the King fent
Rott. Roma his Letters of Requefl; to the Pope, defiring that they
^«. 4. E. 2. might be arrefted, and their Perfons and Goods feiw
ilf. 17. Dor/o. ^^^ ^gj^j. (j^gj. jQ fatisfy him for the damages he and his
Subjefts had fuftained by them., promifing not to proceed
againft them to the lofs of their Limbs or Lives. Upon
which L-tters, the Pope feized on their Goods, and not
long
l:flAP.xii. 0f €onttihutiom in mat, 173
jnff after the King writ for the feizing of their Perfons, ^off, Roma/i^.
or anfwering of other frauds and injuries. ^^^' ^- 16.
Xhe like was done for one Anthony Faxons^ who had °^'^°'
eceived 500 /. of the King's Monies, and running away
vith it to Lorraine^ the King writ to the fame Duke^ de-
iring that fearch might be made, and his Perfon fcized CZ/ya/ 8. 5. 2,
ipon, and his Goods fecured in every place within his ^-31 l^orfi
rerritories, till he Ihould fatisfy the faid 500 /. ^'' ^'^'^
CHAP. XII.
U Contn'btttt'on pain ^ piact^ ^mttv to
iotfi ^vrnit^ in Ulnv,
[. 0/ force ufedio Neuters nvhether
lawoful
W. Of Neuter Sf their duty conftder d
in reference to either of the 'war-
ring Parties.
III. Cfonfideratiofis general touching
the famey avd the chief matters
that are ohjeded hy thofe that
fcrupie thereat.
IV. The Cafe ftated generally in the
quejiion propounded to our Saviour
of paying tribute to Casfar.
V. In the payment of Contribution
to an Enemy y nvhat is neceffary to
be dijiinguijhed in the beginning of
a War.
VI. Of a fecond diflingidfhment
dranjcn out of the firfiy of fuch
payments y <when a War is aBual-
ly formed.
VII. Where a man pays ^ but miflikes
the caufe^ ^whether excufable, the
War not yet aBually formed iti
place.
VIII. Where a Country is fully pof'
fefiy fwhether payment then is
lanxfuL
IX. 0/ the fate of thofe that li've
on Frontiers y their condition confl-
dered in reference to procure their
Peace by Contribution.
X . Of inter diSion by him to Places
from ^oom faith is onxiingy Con-
tribution notvnthfianding being
paidy <v:hether the fame creates
an offence in them.
XI. Of the genuine ConfiruBion of
fuch interdidions according to the
true intention of the fame.
XII. Of the impunity and punifh'
ment that fuch innocent Offenders
may be fubjeSied to, in cafe of be-
ing quef toned for the contempt bj
their right Go'vemors.
I. T T is manifeft there is no Right of War over Neuters
JL in War •, yet becaufe by occafion of the War many
thin'gs are ufually done againft fuch (Borderers efpecial-
ly) on pretence of necelTity, there can be no Excufe for
the a6t, unlefs it be apparent NecefTity, and that the
feme ought to be extreme^ for then it may give a Right
over
174 ^f €onttibmiom in mat, Booki.
over what belongs to another Man ; for in fuch cafe if
the neceflity be manifeft:, there may be fuch a proportion
exadled as the neceflity requires, that is, if the Cuftody
fuffices, the Ufe of the thing is not to be taken ; if the
Ufe, not the Abufe, be neceflary, yet is the Price of the
thing to be reftored. Mofes^ when the higheft neceflity
urged him' and the People to pafs through the Land of
the Idumeans^^ firft he faith, he would pafs along the hiA
way^ and not divert into their Corn-fields or Vineyards ; tf
he had need hut of their Water ^ he would pay a price for it,
The worthy Captains, both Greek and Roman ^ have done
the like : In Xenophon the Greeks with Clearchus, promife
the Perjians to march away without any damage to the
Country, and if they might have neceflfaries for Money,
they would take nothing by force. This Virtue is often
* See to this commended in * Bclifarius by Procopiushxs Companion
purpofe his and Witnefs of his Adlions.
(Excellent
Speech to his
Soldiers near 5/«^, when he marched into ^r/c/^, and the Narration of his March
thorough Africk, Vandal, i .
II. And as the Law doth preferve the Eftates and Ter-
ritories of fuch Neuters, or thofe that abftain from War,
fo on the other hand fuch ought to do nothing for either
Party, but efpecially for him who maintains a bad Caufe,
or whereby the Motions of him who wageth a juft War
in ay be retarded ; and in a doubtful Cafe they ought to
kxemplum fhew themfelves equal (as v/e have mentioned elfevvhere)
r^obile 'vide to both in permitting pafTage, in affording Provifion for
cpudParw |.|^g Legions or Navies, and in not relieving the Befieged
^"ucJideii 1 ^^ ^^ ^^^ ^^^y ^f ^^^ Athenians, if they would not fide wttb
any Party, cither to prohibit the Corinthians from raifal
Soldiers out of Attica, or permit them to do the like. So the
Emperor and Confederate Princes of the Empire, with the
Cantons of Switzerland in the late German War, and fo of
the King of England^ who was fo careful to preferve the
Neutrality, that he iffued forth his Proclamations to pro
hibit all Perfons, of what Condition foever, to become
Soldiers in the Service of any of the warring Princes. It
was obje6led by the Romans agairifh Philip King of the
Macedonians, That the League was violated bv him two
ways, both becaufe he did injuries to the Fclloivs of the Rornofi
Peoplii
Chap- XII. ®f €ollttihUtiom iU Wav. 175
Peoph, and becaufe he ajjlfted the Enemy with Aids and Money.
The fame things are urged by ^itus ^intus in his Confe-
-ence with Nahis^ Yet thou fayeft, / have not violated you ^
yiorP^^ Friend/hip and Society^ how often lliall I prove
:he contrary ? In fhort, wherein is Friendfhip violated ?
By thefe two things efpecially : If thou haft my Friends Procop.Goth.
V Enemies : if thou art a Friend to my Enemies : he is i •
mhnd an Enemy who fupplieth them with what is ufeful
^or the War,
III. But now there are many things that are ufeful for
he War worthy of feme confideration, the which are not
b accounted at this day by the Laws of Nations ; un-
bftand me, That I call the Laws of Nations^ which is
t this day univerfally pra6lifed, as namely the fupplying
ither or both of the warring Parties with Monies, or
hat which is called Contribution. Now if the Minds of
he Subjeds cannot be fatisfied by the declaration of the
'aufe, it will certainly be the OfRce of a good Prince or SH. in Verh,
leneral rather to impofe upon them Contribution than i^ellump, i.
/lilitary Service, efpecially when that Prince or General ^.J^
ath an Army fuflicient to profecute his Defigns, the
'hich a juft Commander may ufe as God doth the ready
ervice of the Devil.
The mod excellent Grotius having moil incomparably
•eated on, and cleared all the important Objedicns againft
juft War, together with the Incidents of the fame ; yet
lis main one of Contribution or paying to both Armies,
hether lawful, he hath not touched in any other v/ords
at thefe, ^.od fub tributo utrique parti pra^ftando fa5lum
'u in Belgicc^ Germanico bello nuper vidimus^ eft que id con'
Intaneum mori veteri Indcrum "f : and fo cites a faying in ^Grot. dejun
Hodorus Siculus *, of the Peace that thofe People main- ^dl.^acPads^
ined in their Polleffions by reafon of fuch Contributions. / '^' ^"^^2!^*
j| ut to many Perfons this Inflance, without further fcru- * uh, 2.
f ny, proves infufficient •, for there are many, v^ ho not
ding this Liberty in their Confciences, unnecelllu-ily
ife rather to give up their Bodies to reflraint^ and to
Andon their whole means of Subfiftence in this World,
th for themfelves and their Children, (which ought not
^'ndly to bedone, unlefs we would be worfe than lyiftdels^ ii.%
Paul faith) they ground their Refolution on this Reafon,
^t they know not whether the Monies they give may
not
176 ^( €ontvibittion^ in zmv. Booki
not fiirniili to the Dcftruclion of many Innocents^ and
perhaps thejuft Magifcrate ; yea, and the total fubyer.
fion and ruin of their Country, Liberty, and Religion;
and therefore though Men give and beftow their, own
where they pleafe, yet in fuch Cafes they may not ; there,
fore it may not be impertinent to examine whether tjk^fc
be neceffary Scruples in themfelves, and fuch as admitof
no exception of Liberty, or whether thofe Scruples be
reafonable, or indeed meer fcandal.
IV. The Scribes and Pharifees fought two ways toea-
trap Our Saviour ; one was if he had blafphemoufly
taught a new Religion, and a new God^ {viz. himfelf)
they hoped the People would be provoked to ftone him
Beut.xiii. for this, according to the Hebrew Law : The other was,
to bring him within the compafsof Treafon^ as if he could
not lead great Multitudes after him without traiterous de-
figns j but this Gin failed too, becaufe the Multitudes
which followed him were always ready to defend him.
However, when he was at Jerufalem, where the Romn
Troops and Pr^tor were, they thought they had him
fure, by propounding thisSubje61: to him :
Is it lawful to pay 'Tribute to Csefar ? Which v/as as mucli
as to fay, We who are defcended from Abraham^ and are
the peculiar People, to whom God hath given the large
Privileges of the Earth at home, to bathe ourfelvcs m
Rivers of Milk and Honey, to have full Barns and mary
Children; yea, that GOD himfelf would be adored ia
no other place of the World but at this our Jeriifakm^i^^
that abroad we fhould triumph over the Barbarous andur-
circumcifed World by virtue of that Militia^ which he
never ordered for any but ourfelves ; how are we
in Duty or Confcience to fubmit now to the Ordinances
the Uncircumcifed Romans ? Or what Right can he havew
exercife fupreme Jurifdidion over us, the privil^e
Seed of KhvdL\i2im^ by levying of Taxes on our Eftatesan^
Lands, which GOD himfelf laid out for us, by \^^'*
means the Emperor and Senate hold this very Temple r
(lavery, and infult over our very Confciences and M'
gion, by defiling our very Sacrifices with the mixtuicc:
impure Blood ; which as they are the price of our BWt
and a Tribute far above C^r's, (payable in no other Pia«
but this Temple, which GOD himfelf built) io oij
0!
J
ckap. Xir. s?f €mttiMtibn^itt m&v* 177
Blood ought not to feem too dear to be facrificed for tht
Liberty of thefe : and though the Roman State coUld pre-
tftnd, yet what can this defar pretend ? Every man's Con-
fdence knows that it was but the other day he ufurpt over
the Senate^ in which refides the true Jurifdiclion of Rome j
and if that were otherwife, yet how can he pretend to a
Tide unlefs Poifon be a Pedigree, or violent Ufurpatioh
a juft Eledion, by which he who is but the greateft Thief
in the World would now pafs for the mofh Sovereign and
Leo^itimate Prince ? How then are we in Confcience ob-
lioed to pay Tribute to this C<efar ? Though thofe Law-
yers thought in their Confciences that they were not to
pay it, and that Our Saviour likewife, as a Jeijv^ thought
fotoo j yet they fuppofed he durfl: not fay fo mUch in the
crowd ; nor yet deny it by fnifdng it off with Silence, left
the Roman Officers fhould apprehtliid him : But when Ouf
Saviour Ihewed them C^fafs Fade upon the Coin, and
bade them Render to Cafar that which was Ccefar^s, and td
GOD that which was G O D's -, His Anfwer ran quite
otherwife, not as fome would have it, that by a Subtilty*
he anfwered not to the Point propofed, for then the fenfe
of the whole Text would found very ill in fuch Terms, viZi
If there be any thing due to C^far, pay him it, and if any
thing is due from you to GOD, then pay it likewife ;
This had been a weakening of GOD's Right for C^far^s,
and to have left a defperate doubting in a necefTity : 'Tis
beyond all cavil that Otir Saviour*s Opinion was pofitive for Matt» xxii,-
paying of Tribute to that C^far, becaufe defa^o he did ^o-
pay it •, and the plain Reafon of it appears evidently in
this his Anfwer : C^far's Face was upon the Coin, that
is to fay, Ccffar by Conqueft was in PofTeiTion of that
Coin, by pofTeiTing the place where he obliged them to
take it *, coining of Money being one Prerogative of Sove- Coke 3. Injiitl
raign Power. fot. 16, 17.
V. But to come more clofe to the Queftidn, whether
Contribution may lawfully be paid: Firft, we are to
make a Difference betwixt perferre i^ inferre helium -, the
one is adive, and properly at the beginning of a War,
and in a place where yet no War is, and where its Caufe
<>nly, and not its Effects can be confidered ; in this cafe
every thing ought to be very clear for Warrant of a
Man's Confcience, becaufe of the Calamities which he
M helps
:
lyS jfiDf Cotttrtijatton^ tn 52!atr* Booki.
helps to introduce, and is in fome manner the Author of:
the other is palTive, and there v/here War, or the Power
of War is adtually Ibrmed, which is the Cafe of this
Difcourfe.
VI. Secondly, we are to tiiftinguifh betwixt that I
which cannot be had, nor the Value of it, unlefs tve
actually give it, and that which may be taken by the Law
of War whether we contribute or no.
VII. Moft certain it is, though a War be not y^t
actually formed in a place, yet a fcrupling Confcienc^,
which likes not the Caufe, may be excufed in contributirtg
to it in this one Cafe, viz. If fome number of Men, able
to take what they afl<., demand (with an armed powd-j
the payment of a certain fum to be employed in War,
then in fuch a cafe, the Man, whom we fuppofe, may
pay it as a Ranfom for Im Life, or give it as a Man doth
4 H, 4. 2. his Purfe, when he is iurprifed in the Highway, becaofe
to this Man it is as much as if the whole Country victe
Procopius in pofTelTed with an armed Power. So feveral Dutchies and
the third of Seigfiiories dependent on the Empire^ did in the War
Goth.oiTotilas between them and the Crov/n of France^ pay Contri-
faith, /^gricolis
interim per omnem Italiamnihil mali intuUt % fed jujffii eos itat ut foliti erant^ term
perpetuo fecuros colerCy modo ut ipfi Tributa perferrent : This, faith Caffiodore, is the
greateft Praife. 12. 15.
But if the Perfon or Country be not for the time in full
PofTeiTion of him whofe Caufe he fcruples at, and that he
or they have not a probable fear of extreme danger, nor
as probable afifurance, that without his help the thing de-
manded nor its value can be taken from him or theiti,
then there is litde Excufe remains for the Ad, becaufe
the very Ad (which his Confcience diflikes) participates
more of Adion than of Paffion.
VIII. But where a Man or City is fully pofTefTd by
an invading Power fbe the fame juft or unjuft) from
whom he or they cannot fly, nor remove their Subftance,
moft certain the payment of Contribution is no gift, any
more than he (as above) who with his own Hands being
kt upon by Pirates or Robbers, puts his Purfe into their
Hands j for the Laws calls not that a Gift, nor excufcs
the
Chap. xii. mtontvibmiom in m&v. 179
' tfe Party from taking it : And altho' the Parties may
employ the fame to the DeftruClion perhaps ot Innocents,
and the like j yet that is an Adion out of their Power
that give, as far as Winds and Tempefts are^ to which 44 ^- 3- H*
;wo, as we contribute nothing, fo we cannot be ^c^^" r^ ^ '/'/?•
pulous in our Confciences concerning their bad Eifeds ^^J ^g'^ "-'''*
nor is the fame repugnant to the Canon Law, (which
teaches us humanity, and the imitation of all their virtues) C. 2 deTrevg.
and therefore Perfons, whofe Liv(.^s are innocent and ^ ^^^^- ^^'*
harmlefs, ought not to be fubjeded to danger or plunder, ^^""^^^
which hardly can be avoided without Contribution or
Tribute.
-^i^., Again, thofe that live on Frontiers, whofe coridi- The qmet of
tion is more tickliih and deplorable, becaufe they are not ^^^ World
fully pofleit nor taken mto the Lme or either Party, thele j^^d without
live as it were in the Suburbs of a Kingdom, and enjoy Arms, no
not the Security -or Privileges of others, yet fuch Per- Arms with-
fons may lawfully contribute to both y for though they p^^^^^^^^^^P^.
fee but partly pofleft by one, and partly by the other, in wltlioutCon^
refped of their fudden abandoning them, yet both Par- tribution.
ties have the Power of dellroying them wholly ; where- ^'^«^- Hiji, '^,
'fore thofe former Reafons which juftify thofe fully pof-
feft, do alfo acquit the Payments of thefe ; for their con^
dition here is more calamitous, feeing they are really but
Tenants at Will, expofed to a perpetual Alarm, and that
both Parties wound one the other only through their
fides, as thofe this day that are fituate between Francs and
Germany \ for being perhaps Neuters in the War, they
afe in that cafe by the Law of- Arms to fhew themfeives Exmpkmm'
^ to both, in permitting of PafTage, in affording ^^^J^fj^ff^
Provifions for the Armies, and in not relieving the Be- g''^^^^.^/^')^/
fieged. c. 17.
X. Nor can the Interdiction of him to whom fuch owe
Faith and Obedience, any ways create the fame an Of-
f'tte, fince the declared W^ills of our Governors cannot
niake. all thofe of our Ads Sins, when we obey or fubmit
pnycdus of the Pov/er of their Government ; and by the Gfoi. dejufi
Laws of War, they v/ho have overcome, fhould govern ^f/^» '^^ -^^"'^
thofe whom they 'have overcome; and therefore what- ^ 3-^-M <«•
M2 foever^-*^*^^-
i8q ^t €ontnhutiom in tmv* BookI.
foever is exadled by the Conquerors, may juftly be paid
by the Conquered.
And fince Princes by their Commands cannot change
the nature of human Condition, which is fubjedt naturally
to thofe fore- mentioned Changes, it would feem exceed-
Jiirehoccve- ing hard to oblige us to almoil moral ImpolTibilities \ and
7iitut qmd though thofc Political Commands' were as Laws, yet
^te'}m ct-poris ^-^^ubtlefs they ought not to be obliging, but according to,
fuUure fldjTe th^ Legiflative Rule, which is cum fenfu humane mbecit-
^exipmetur. litatis^ this is that which is called the prefumed Will
* Leg. ut 'Vim. * of a Governor, or the Mind of a Law : for in extreiSJ
p. dejujl. ^ necefTity it is to be prefumed, that both their Wills prb-
^"''' ceeding from the Rigour of what they have declarec};
rather than by holding to that which is their fuppofed
Right, introduce certain Miferies and Confufion without
receiving any Benefit thereby to themfelves. Nor could
they of Utrecht^ and others of the conquered Cities in
Holland^ abandoned afterwards by the French^ and entire-
ly preferved from Deftrudlion, be condemned by their
Confederates^ for the Sums by them promifed to the Ene-
my for the Prefervation of the fame.
And that is Neither are fiich Commands or Inter diElians without their
apparently j-^^^jg ^^^ profit^ though they he not pofttively obeyed ; for
thTLaws^f thereby Governors lliew to all the World, that they
Leagues; for renounce no part of their Right, no, though it be
fach being there where they cannot exercife any part of their juft
made, the Power.
fame remains,
although the
fame King or his Succeflbr be driven out of his Kingdom, for the Right of the
Kingdom remains, although he hath loll the Pofleffion, Grotius, lib. 2. cap,}]'
XT, Now the true Intention of fuch Commands or In-
terdictions is, that the Enemy fhould not by any means
be afTifted or ftrengthened *, but if fuch Prohibitions fhould
be obeyed, nay at fuch a time, when they and all their
fubftance are abfolutely pofTeft by the Enemy, moft cer-
tain fuch Commands dafli againft themfelves, and the one
countermands the other ; for if they refufe to fubmit in
fuch a cafe, then they do that which advantages -their
Enemies, becaufe at that time they will take all, whereas
in Cafe of Submiflion they afk'but a part.
^ ^ XII. In
Chap. XIII. ^t t^e|5a&si ^Uitavv patt i8 r
XII. In all Wars there are always fome, by whofe
DifafFe^Ttions Enemies gain more than by their Compli-
ance, juft as Phyficians do by Diflempers.
And although, by variety of Succefles, the juft Gover-
nor fhould after recover that place, which fo fubmit-
ted to the Power of their Enemies, and for that reafon
fhould punifh thofe that were pliable to extreme Neceflity -,
yet it follows not upon that, that they who fo conformed,
finned, or did that which was abfolutely unlawful ; for
we well know that reafon of State often calls for Sacrifi-
ces where there is no fault to expiate : Oflradfm and Jea- InRepuhlka
loufy may make away thofe who are known to deferve moft : ^^^^ f!,"'T-]
but in ftnct Right (which is the Term of this Queftion) ;^^;^^;./.
the juft Governor ought to look upon them as more
Unfortunate than Faulty,
CHAP. XIII.
£)f ti}t 0ai)al ^ilitarv part
I. fhe Advantage that Princes hwue
by a good Commander,
II. The Love that naturally proceeds
from the Mariners to thofe that
are valiant ojid generous.
III. Princes in prudence ought not
3d! l9 hjien too much to the Com-
plaints againjl Commanders.
IV. Of the faults generally confid^er-
ed in Soldiers and I^lariners,
V. Of the punifhments that gene-
rally ijuait on fuch Offenders.
«^VI. Of Drunkenjtefs, Sivearing, and
ether fuch fort of Impieties^ not
to he fuffered in Fleets.
VII. Spies, Uis ianvful to ufe them
hy the Laivs of Nations, hut being
deprehended, are to fuffer Death ;
and hozv they are to he dealt uoith-
al by the Laivs 0/ England.
yill. // is not lawful for a Frie:id
or IJeuter to relieve an Enemy, and
^^rfansfo offendin?, how pun'tfht.
IX. Ships taken as Prize ^ the Ship^
Papers i and other matters concern'
ing the fame, are to he prefer^ved,
X. Of things taken and acquired in
War ; ho^ the Right of them be-
comes njefted in the Captors, and
honx) that is to be underP.ood by tk4[
Lavj of Arms.
XI. %fealthe Cables or other Fur-
niiure of the King of England's
Ships, ho'w punijhable at this day,
XII. Ships fur rendred or woluntari^
ly yielded, hovj to be dealt <v:ith^
and to thofe that fhall refifl, if
entred by force, luheiher quarter
may be refufed.
XIII. Ships of War gsneraP^
ought not to be yielded j but if en-
tred or difabled, 'whether they
may not accept of garter, fiand-
ing nuiih the Oath cc^llei SagriV
mentum Milicare.
M 3
XIY. ^-
6Z
iDf t^e Batm ^iliutt pavt Book i.
XIV, 0/ obeying Oniers, the fame
ought funiluaV.y to he foUo^ied ;
and if broken^ trough (he a^ fuc-
Cteds ivell, nvhether thejame fub-
je£ls not the Aclor to punijhmeiit.
Xy. Of the Obligation incumbent
on Commanders and Soldiers^ to
hehat'e thejnfehes 'valiantly^ and
the right of flaying an Enemy ^
ijohere la-vcful.
XVI. Ships hons) obli^d by the Latv
of Anm to the Jf/Ifance of one
another ; and of the duty of thofe
that ha<ve fleets under their Con-
voy.
"XVil. An "Enemy beaten ought to he
furfued, and ko'vofarii is la'rtful
to flay fiich fifing ivith their li'ves
in their hands^ by the La^w of
Arms, andhonjothe reeking fiQord
ought to be go'uerned.
XVIII. Perjons exejnpted from the
fword by the Lazes of Nature^
Nations, Ci'vil and Canon, and
by the Municipal Lwvjs of feme
Countries.
XIX. Mutinying hc^M ejieewed, n-a-
lued and punijhed at this Day ly
the praSiice of Armies, and by the
Lan.vs of England.
XX. Whether it be lanxful to decoy
the Subje^s, Soldiers, or Mart-
Tiers of an Ene?ny to forf&ke his
Prinze or General, and to hrinv
tf-ver his Men, Ships or Arms, ajxd
nxihere by La<w they may be recei'v-
ed; and hoi.v fu<h Defer ters tna^
be punijhed by the Laavs ofNationi
and of Engiard.
XXI. Of Seducers, Meffage- carritn
and Decoyers of Soldiers, hoiu to
he handled by the Laiu of Arms.
XXir. Of thofe that fhall difobty-^r
fir He their fuperior Oncers, hvoi
punifjjahle.
XXII I. Of mutinying, and thoft
that flmll atl in the fame, bonti
punijhed, thous^h they hwve a jufi
Cavfe of Complaint.
XXIV. Of the Care incumbent om
Commanders and Majiers of tht
Great Ships, in reference to thtir
fafety, and the punijhment oftoit*
ful burning and defraying them^ •
XXV. Of the general Offences at
Sea, honjo funifljed.
XXVI. Court Martials hovoere^-
ed, and luhat Operation theifi
fudgmetits hanje, and upon ivhom.
XXVII. :. Judges and Adwcatts,
PoiJuer in reference to gi'ving an
Oath, and the Admirai'j Po'wer
honjo limited in the punifhing of
Offences.
XXVIII. Of maimed Soldiers and
Mariners, and the P ro^vifons that
the Laavs make for them at this
Day.
XXIX. 0/ Triumphs.
LAN excellent General is an Evidence of the Fortune ;
XjL ^f 2. Prince^ and the Inflrumcnt that occafions^
the Happinefs of a Kingdom ; and therefore when God':-
rnakes choice of a Perfon to repair the Diforders of the .,
World, or the Good of a particular State, then is his Care.1-
fhewed in the furnifhing him with necelTary Principles-
to undertake great Matters ; the Thoughts are put in his
Soul by that eternal Commander to execute, he troubles
and confounds his Enemies, and leads him as by the Hand,
to Vidlories and Triumphs : And one of the greateft Ex-
pedients whereof he ferves himfelf for this Purpofc, is iQ^^
raife untg him excellent Men, both in Courage and Con-
duft,
If
. Chap. XIIL iS>ttf)t ^ai)Vl S&iUtaVV patt. iSj
I duft, to whom he communicates his Care, and who help
*ihim to bear the Weight of Affairs. Alexander had never
l! conquered 4/^a, or made the Indies to tremble, but for
1 Epheftioft, Parmenio^ and Clilus ; defar gained many a
I Battle by his Lieutenants ; and the faireft Empire of the
k World, which Ambition and the Evil of the Times had
f divided into three Parts, was reduced under the Dominion
of Auguftus by the Valour of Agrippa \ Juftinian trium-
phed over Perjtay and deftroyed the Vandals .in Africa^
and the Goths in Italy by the Aid o^Belifarius and Narfes :
And it is moft certain, that Noble Commanders are the
Glory of their Princes^ and Happinefs of the People ; oa
the. other Hand, Bafe, Cowardly and Treacherous Ge-
nerals are the Shame of the one, and the Defpair of the other.
II. Plence it is, that Soldiers and Mariners draw their
Liftes of Love even to • the Mouths of Cannons with a
good General, but Mutiny and Hate to the main Yard
end againft one that is Bad ; for to obey them who
are not their Soveraigns when they do them Hurt,
when they infult and are cruel in cold Blood, and Bafe, '
Cowardly or Treacherous in Battle, is a fad Necefllty
for them, and a hard Eflfay of Patience ; yet mufl they
be obeyed, and the Soldiers and Mariners mufb not rebel
or repine, but fubmit till their Soveraign redrefles their
Misfortunes.
III. Again, Princes ought not to liften too much to the
mutinous Demands of the Crew^ or any others whofe
Ambition watches their Ruin, whereby to conceive An-
ger again fl: their Commanders •, for it is eafier to purge out
the Choler and Difcontent that is got under the Hatches,
than to provide Commanders of Condu^, Courage, and
Faithfulnefs to govern their Expeditions. Belifarius, that
moft excellent Commander, who had no other Crime than
his Reputation^ and was not culpable, but that he was
Powerful, having conquered Perfta^ fubdued Africa^ hum- ProcopimEiJl.
bled the Goths in Italy, led Kings in Triumph, and made ^^''^^^v^^^/''
appear to Confiantirople fomewhat of Old Rome ; an Idea ^ ^ ^-'^^"' ^
of the antient Splendor of that proud Republick ; af-
ter all his eminent Services, this great Perfon is aban- FUe Sir irW-
doned to Envy: A Sufpicion, ill grounded, deftroys the ^^^. ^^^-^^^^'s
Value of fo many Services -, and a fimpk J ealoufy cf State, ^"^g^"'^'^^*
Wipes them out; of the Memory of his Prince : but he ^,/^y. \'y^s.
M 4, refts
^1
1 84 SD( tliei^afial Sl^iUtatt pSitt Book t
The Ingrati- refts not there, for the Demeanor had been too gentle
been mew^n^'^ if Cruelty had not' been added to Ingratitude -, they
by Princes to ^^P^ive him of all his Honours -, tliey rob him of all his
many Brave Fortune ; they take from him the life of the Day and
and Noble Light, ibey put out his Eyes^ and reduce him to the Com-
Co"^'^tnde"t P^^^ ^^ Rogues, and the miferable Belifarius demands a
there particu' Charity ; even that Belifarius the chiefeft General of his
larly enume- Age, and the greateji Ornament of the Empire^ who after
rate4. fo many Vi6lories and Conquefts, accompanied with.fo
high and clear a Virtue, and in the midft of Chriftendoniy
was reduced to fo abjed: and low a Mifery.
.,;Nor was this cruel and hafty reckoning of Jw/zW^wi let
flip without a cruel Payment ; for Narfes^ who was as
>vell a Succeflbr in Merit as in Authority to Belifarius,
having notice of a Difdain, conceived likewife againft
him upon a fingle Complaint, refolved not to txpofe
himfelf as a Sacrifice to their Malice ; and therefore
thinking it better to fhake off the yoke, than flay to be
ppprefTed, foon fpoiled the Affairs of Juflinian^ for the
Qoths revolted, and Fortune would not forbear to be of
the Party which Narfes followed, nor to find the Barha^
rian where fo brave a Captain was engaged. Therefore
not one or many Faults are to be liftened to againft
Commanders, but patiently heard and redreffed, not to
cjifgrace or lofe them ; for fuch having committed a
Fault, yet being admonifhed by love, may endeavour by
future Services to make recom pence by fome noble Ex-
ploit ; but difgraced, become Inftruments often of Danger
and Ruin to their Superiors.
IV. Soldiers and Mariners Faults are either proper to
^hemfelves, or common with others.
Thofe are common with others which other Men fall
into, and are corrected with like ordinary Proceedings as
pther Crimes of like Nature, as Manflaughter, Theft,
Adultery, and fuch like.
Thofe are proper which do purely appertain to the
. „ .;., iV^^':;^/AZ////jryparr, and are punifhed by fome unufualor
Decajhenftfe' extraordinary Punilhment : As are thefe •, Not to appear
txilia, {5 C. ebr at the over-muflers or calling over the Ship ; to ferve un-
^m /;/. /. 12. der him he ought not to ferve ; to vage or wander long
C. (ieercgatio- f^^^ ^^ Ship-board, altho' he returned of his own accord;
anrianakfjCat ^^ iQuai^e his Fleer, Squadron, Ship, Captain, toifl'
n;ejl Militari. IHailder,
«ckAP. XIII. m t^e iUabai ^ilitavv patt 185
% niander, or Officer •, to leave his (landing to fly over to'
'the Enemy; to betray the Fleet, Squadron, or Ship ; to
Jll be difobedient to his luperior Officers ; to lofe or fell his
5 Arras, or to fteal another Man's ; to be negligent in his
i Oficer's Command, or in his Watch •, to make a Mutiny ;
I to fly firft out of the Battle, and the like, which are
i very frequently fet forth in the Titles of the Digefl and
Code of Military Affairs, and other like Titles which ac-
company them.
jirrian, who. wrote the Life of Alexander the Greats
obferves, Every thing is counted an Offence in a Soldier^
which is done contrary to the common Difcipline^ as to be
negiedlful, ftubborn, and flothfuh
V. The Punifhment wherewith Soldiers and Mariners
are corredled, are thofe corporal Punifhments, or a pecu-
niary Mulk or Injundion of fome Service to be done, or
a motion and removing out of their Places, and fending
them away with fhame. ^:
' By capital Punifhment is underflood for the mod
part Death, or at leaft beating with Cat with Nine 'Tails,
as they commonly term it, Ducking, Wooden- HorfCy Gaunt-
let, znd hch like, unlefs happily it be pardoned, either
for the unfkilfulnefs of the Mariner or Soldier, or the
Mutiny of the Crew or Company, being thereto drawn by
Wine, Wantonnefs, or for the Commiferation or Pity of
the Wife and Children of the Party offending-, all which
is left to the Difcretion of the Lord Admiral^ and others
the Supreme Commanders or Captains.
VI. It is neceffary that in Armies and Fleets, all
manner of Impiety fhould be prohibited, efpecially
that of Swearing and Curfing ; for fuch Sins are fo
foolifh, that they unawares trip Men into Damnation,
rendring Men worfe than Beafts, by how much the more
they court that Vanity of Sin, without any of the appen-
dent Allurements which other vitious Adlions are accom-
panied with, the fame in the end teaching Men to difavow
GOD in their difcourfe and adions, by their intemperate
and inconfiderate invoking him in their Oaths. Againftfuchj
cs alfo againft thofe that Jhall give themfehes up to Curfing^
^ecrations, Brunkennefs, Uncleannefsy or other fcandalous i^Car.2.
ifi^ions in Derogation of God*s Honour, and corruption of Good ^^^ 9^ Art.z.
Manners -, Fines and Imprifonment^ or fuch other Punifbfnent
may
1 86 £>( tf^t i^abai flptittat^ part Book i.
may he hjfli^ed on them by a Court Martial^ which is qov
By Order of reduced to the Forfeiture of one day's Pay •, but for Drunk.
his Royal ennefs, the fame extends not to Commanders, or other
Dlk^e"ofrc^;i Commiffion and Warrant Officers, for they upon Convic.
1666. * tion before the Admiral^ ftiall be rendered uncapable of
their Command.
Artie. I. And a Lyar cnnvifled on Ship-board, fhall be hoiftcd
upon the main Stay with four Braces, having a Brooir.
' and Shovel tied to his Back, where he ftiall continue an
Hour, every Ma: crying, A Lyar^ A Lyar^ and a Week
following, he fti. 11 clean the Ship's Head and Sides witt
out board, according to the antient practice of the Navy i
if he receives greater Wages than for an able Sea- man-
then half a day's Pay.
VII. By the Laws of Nations., Spies may be fent tofu(.
vey the Enemy's Force, Fleet, Station, or Squadron, anS
Lih. 2. f. 3. rnake difcovery of whatfoever may give advantage to the
Corn'ifsica ^^^^^ns fending : So Mofes and Jo/hua did into the Holj
rii^'puL ^^^ Land, On the other hand being deprehended, they are
to be put to death, as Appian faith. Bat whether it be
lawful to make Spies of the Subjeds of that Prince wA
whom the War is begun, hath been fome doubt : It is not
lawful for a Subjed to kill his King, nor to yield up hi$
Ships of War without publick Council, nor to fpoil hjs
fellow Citizens, to thefe things it is not lawful to tetnpt
a Subje<^ that remains fuch -, nor may any reply. That to
him who impelleth fuch a Man to a wicked A(5l, that Aft,
^ as namely the betraying of his Enemy, is lawful •, no body
doubts, he may indeed do it, but not in that mannei';
but yet if a Subjedl will voluntarily defert his Prince and
Country, i. e. fo enter into a Correfpondency with the
Enemy of it, without any impulfe but his own covetous
leg. tramfug, qj. j-evengcful Mind, furely it cannot be unlawful for the
rum ^Dom ^^' ^^^^^ ^^ receive him. IVe receive a Fugitive by the Law
of IVary faith Celfus., that is, it is not againft the Law of
* As was in War to admit fuch, even a Traitor, who having defertd
^^^, ^^p^^j. the Enemy'* s part., ele^eih ours \ however fuch Perfons ought
the^^/eW "^^ ^^ ^^ rendered, unlefs exprefsly ftipulated *, but
Jniiochui, pI ought to be pardoned. By the Laws of England, if an;j
iyb. in excerpt. Officer., Soldier or Mariner., in a5fual Service., and in the
^T^'tiV . ^^J ^^y ^^ ^^^ Majefly^s Fleets or any other Perfon in thefim^y
Prote^7,^Ue;;t' Jhall givey heldy cr entertain any Intelligence to Qr withi^n^
TICK decet. ^%'^
c
jHAP. XIII. M tl)e i^atar 3®tiitar^ part. 187
iji/p-, Prince or State^ being Enemy to^ or any Perfon in Stat.i^. Car-
cllion againfi his Majefty^ bis Heirs and Succejfors, ^: ^^P' 9- -^'*-
boui Leave or Authority from the King, Admiral, Vice-
liiiral, or Officers in Chief of any Squadron, they are to
■d. ^er Death. Now the bare receipt of a Letter or Meffage
(•m an Enemy, will not make a Man fubjetSt to the Pe-
■^ ty of this Article ; and therefore the fubfequent Article
lains the precedent, in which it is provided. Thai if
inferior Officer, Mariner, or Soldier, /hall receive any
1 1 iter or Mejfage from any King, Foreign Prince, State,
^j Potentate, being an Enemy, or on their behalf -, and if
jj b Perfon doth not reveal the fame within Twelve Hours,
ji ving opportunity fo to do, and acquaint his Superior Com- ^'
rJer with it, fuch Perfon is to fuffer Death ; fo likewife,
fiich Superior Officer or Mariner being acquainted there ^
b by an Inferior Officer, Mariner, or other ; or fuch
erior Officer, Commandor or Mariner, in his own Per-
, receiving a Letter or Meffage from any fuch Enemy or
•el, and' fh all not in convenient time reveal the fame to
1? Addiiral, Vice- Admiral or Commander of the Squadron^
Jhall fuffer the like pain of Death, or fuch Punifloment
a Court Martial fhall infliEl. Now Spies are put to
eath fometimes juftly by thofe that manifeftly have a
(I caufe of Warring by others, by that licence which
e Law of War granteth -, nor ought any Perfon to be
oved with this, that fuch being taken, are punifhed
ith Death \ for that proceeds not from their having of-
ndecj againfi: the Law of Nations, but from this, that
} th^ fame^'Law every thing is lawful againft an Enemy ; Ad teg. Com.
'id every one, as it is for his own Protit, determineth deSkariispun.
-aer more rigoroufly or gently : But that Spies are both facU. Hijl. 5.
[ wful and pradicable, there is no Queilion ; for at this
'".^ ly by the general Inflruflions of Fleets, there are al-
' ''^^ys out of each Squadron fome Frigates or Ships ap-
ated to make difcovery of the Enemy ; and upon fight
^'> make Sail, and to Hand with them,' in order to take
. ^^nizance of their Force, as well Ships of War as Fire^
^ raps, and in what pofture they lay ; which being done,
_^/'>je deleting Frigates are to fpeak together ^ and to conclude
t the Report they are to give, which done, they return to
^^^^ ,W>c^ive Squadrons ', fuch Ships in fuch Service are
ot oDli^ed to fight, efpecialJy if the Enemies Force exceed
them
I
iS 8 £>f t^e fHahai ^ilitavv part Book i
them in number, or unlels they ihall have an appartr;
Advantage.
BartoL Leg, VIII. Again, it is not lawful for any, be he Friend o
^^^y^-^'r^' ^^^^^^5 ^o relieve an Enemy, much lefs for a Soldier o:
/ico/fs '^^ ^' M^^ii^^^ i^ P^y? tofupply him that confpires the deftru^lk,
of my Country y is a liberality not to be allowed of : He is to
Procopius be accounted an Enemy that fupplies the Enemy with
Got^. I . NecefTaries for the War ; and therefore by the Laws of
War is fo to be efteemed ; and by the Laws of En^kni^
Stat. 1 3 . Car, jj ^^^ Perfon in the Fleet relieve an Enemy or Rebel in t'm
iic. /, ^ of War ^ ivith Money ^ Vi5iiials^ Powder^ Shot ^ Arms y An.
munition y or any other Supplies whatfoever^ dire5fly or inii-
rcElly^ he fhallfuffer Death,
^''^^^' ^* IX. Ships being ajjaulted and taken as prize, all :k
Papers, Charter-parties, Bills of Lading, Pafs-portSyini
other Writings whatfoever that JJoall be taken, feizd, cr
found aboard, are to be duly preferved, and not torn or nm
away -, but the very Originals are to be fent up entirely ani
without fraud to the Court of Admiralty^ or to the Conim-
der appoijited for that purpofe, in order to the Condemnatm
of the Prize, upon pain of the Captors lofing their Shan in
the Prize, and alfo fubje5l to fuch other Punifloment (H i
Court Martial fh all think fit,
X. The Right of taking of Spoil was approved of God,
within thofe natural 'Bounds v/hich have been alreadv
inentioned, as is further evinced by the Appointment ot
God in his Law concerning the Acquifition of Empire
Deut. XX. 14. over the conquered, after refufal of Peace, All tk j^i
thereof fhalt thou take unto thy f elf, and thou fhall eat the ffit-'
of thine Enemies, which the LO RB thy GOB batb^m
thee. Hence it is, that things taken from the Enemy.
prefently become theirs that take them by the Lawc
Nations, and fuch Acquifition is called Natural, fornc
leg.Nat.^.uit, any caufe, but the naked fa6l is confidered ; And thence
dH'^IT^''^ Right arifeth; for as the Pominion of things bega.i
rerum Deo, ^^"^ Natural PoiTeflion, and fome print of the fame re-
mains in the things taken in the Land, the Sea, and th;
^aarmts Air, fo likcwife of things taken in War-, all whidin-
tr^it^fbem ^^"^^y become theirs that firft become Captors : and fe
jure nlndimil- ^^ Enemy are judged to be taken away thofe things alio
tenda, which are taken away from the Subjeds of the Eneiny'
But though this gives a Right to -;he Captors, yet twf
■ ■ ■ * "^ m
f
a 132 underftood to the Soveraign, or to the State that
!" [oyed them, and not co themfelves •, but if they have
"^fmareof the Prize, the fame proceeds by the conde-
^{\Sh or grant of the Soveraign, which may be en-
fed or abriged as occafion ferves ; and therefore by
K^Laws of Englmdy Ships of War having taken a Prize ^ Artie. 7.
^Goods and all manner of Lading is to he preferve'd^ till Ad-
{iiication jhall pafs % but that is to be underftood, where
the Ship voluntarily yields : but Ships whom they fhall
afTiult, and take in fight as Prize, the pillage of all man-
ner of Goods and Merchandizes (other than Arms, Am-
munition, Tackle, Furnitures or Stores of fuch Ships) as
(hall be found by the Captors, upon or above the Gun-Beck By the dona-
j fjj^ Ship, become theirs ; but this is to be underftood tion of his
ihere fuch Prize may lawfully be pofteft ; for there are ^'^'^''J^J^y'
times when fuch are not to be meddled with ; and there-
fore it isagainft the Rules of War in Fight, if fome of the
Enemies Ships are there difabled •, yet thofe Ships that
did fo difable them, if they are in a condition to purfue
the Enemy, cannot during the Fight take, poftefs, or
burn fuch difabled Ships, and the reafon is, left by fo do- Artie. 8.
in^ fome more important fervice be loft^ but they are to wait
for fuch Booty, till the Flag-0?ciQtxs fliall give command
for the fame.
Vluzzali\ King of Algier, in the famous Battle of Le-
^anto, having behav'd himfelf very valiantly there againft
\\izChrijiians^ fo that he deftroyed feveral of their Gall ies,
and others, he took amongft the reft of the Gallies of Pietra
Em of Ccrfa^ of the Prior of McJJina., and Ludovico 57-
pco of I'rabUy and Benedeio SoranzOy the which he tov/ed
after him before the Battle was com pleated ; but that
getting proved the lofs both of the one and of the other ;
for the ^urks out of Covetoufnefs of the Plunder, or jcj-j^^ Reipuhh
otherwife thronging into them, occafioned their tak- Venet.fQl.iz-j,
ing fire, in which the Vi5fors^ in thofe Flames became 12S.
M/W, and after followed the total Rout of the Ottoman
Power.
XI. It is almoft impofTible, but that in Ships of War,
which in thefe days carry fo confiderable a force of men,
thercj^ill be fome amongft them that have Heads of kna-
very, and Fingers of Lime-Twigs, not fearing to fteal
ihac from their Prince which is applicable only for the
Good
190 £>f tfit iSa&al ^llitatv patt Book I ^
Good of their Country j fuch fort of Night-wolves \M
caught, are to be feverety punifhed -, and therefore i
Artie. 8. fteal or take away any Cables^ Anchors^ Sailsy or of,
of the Ship*s Furniture^ or any of the Powder or Arms c
Ammunition of the Ship, fuhjeBs the Offender to ti
pains of Death, or to fuch other Punifloment as the ^.'
lity of the Offence fhall he found by a Court-Marlial /j
deferve,
Jrik g. ^^ XII. By the Kmth Article, Foreign Ships or Feffelstok
{wtdlng Cyrus ^^ Prize, Without fighting, none of the Captains, Mafitn^
not to give up or Mariners being foreigners, JJjdll be ftripped of tkir
Lydia to be Cloaths, or in any fort beaten, pillaged, or evil intreatti-
pillaged by ^^^ Perfons fo offending being obliged to render double Damn ;
'^m^^onme- ^^is Law moft exprefsly doth not extend to thofe thatob.
am,h^uif,non i^imtdy fliall maintain a Fight-, for mod certain, by the
rej mtas diri- Law of Arms, if the Ship be boarded and taken, there
^iTme'-lm"^ remains no reftridion but that of Charity -, and if a Ship
%apertineit: ^^'^^ perfifl in the Engagement, even till the laft, and then
tua funt, tua yield to mercy, there hath been fome doubt, * whether
nil perdent. Quarter ought to be given to fuch (for they may igno*
^v'a'rdy' ^^^^h niaintain with courage a bad caufe) but in Captives
reBelliyn^AQ. ^"^ thofe that yield or defire to yield, there is no danger.
^ 60. Now that fuch may be juftly killed, there muft be fome
D^^C.deJu- antecedent Crime, and chat iuch a one as an equal Judge
ris^faaitg' yff^^i^ think worthy of Death -, and fo we fee great feve-
Princes in- ^i^Y fl"iewed to the Captives and thofe that have yielded,
deed are Go^^, or their yielding on condition of Life not accepted, if
but neither afcgj- ^hcy were convinced of the Jnjuftice of the War.
hLrdie^°rf - ^^^^ ^^"^ neverthelefs perfifted with Hatred or Cruelty; ::
ersofTuppIi- they had blotted their Enemies Name with unfufferabi^
cants, except difgraces ; if they had violated their Faith or any Rightoi
they be juft. Nations, as of Ambafladors j if they were Fugitives: But
,-,, ^ - the Law of Nature admits not Taliation, except againft
-„, wp^rir the very individual Perfon that hath offended ; nor doth
K77j Were aC" / • ' , I
cufed for that it fuffice that the Enemies are by a fidion conceived to
they flew the be as it were one Body -, tho' otherwife by the Laws o[
SiMren"of ^^^^^"s, and by the Laws of Arms, and at this day
Hycetl7!ht' pta61if<^d, in all Fights, the fm all Frigates, Ketches, and
caufe Hycetas Smacks are to obferve and take notice of the EnemieJ
hadflainthc Fire-fhips and to watch their Motion, and to do their
^i^n-^""^!?" bed to cut off their Boats, and generally the perfons foud
o: Uton. Flu- . . , 1 1 r 1 it rr m f-^ni
tarch. Timon ^^ ^^^^ ^^'^ ^^ oe put to deatb^ if taken ^ and the Vej^ei^ tpo^
i:f Dion. * taktii^
r
Chap. XIII. S)t ti^t ^atai ^Uitavv part 191
')(ikeff deftroyed -, and the reafon v/hy the extremity of War
i^ ufed to fuch, is that by how much the Mifchief is the
creater by the A<^ of fuch Men, if executed, by fo much
{^t PunKhment is aggravated, if taken, and Quarter de-
fied them by the Law of War.
'^^Xill. E'u^U Captain or Commander upon Jignal or order of Anic. lo.
W^U ^^ 'view^ or fight of any Ships of the Enemy ^ Pirate^
cr Rehl, or likelihood of Engagement ^ are to put all things
intbcSbip in fit Pojlure for a Eighty as the breaking down the
Cd'ins, clearing of the Ships of all things that may impede the
Soldkrs in the preferving the Ship and themfelves, and enda-
ming the Enemy ; and every fuch Commander or Captain are
in their own Perfons^ and according to their Place ^ to hearten
ad encourage the inferior Officers and Common Men to fight
<{j{iliantlyand couragioufly^ and not to behave themfelves faiyit-
/v, under the difgrace of being cafhiered \ and if he or they
"kid to the Enemy y Pirate or Rebels or cry for quarter^ he
friheyfo doings fhallfuffer the pains of Deaths or fuch other
: Tunijhment as the Offence Jhall deferve. Now, tho' Soldiers
or Mariners have obliged themfelves faithfully to ferve
in the Expedition or Navy *, yet that is to be underflood
ho further than his or their power to do their utmoft in
• his or their Quality •, for though the Obligation for the
Servicfe be taken in the ftridefl Terms of undergoing
■ feth and danger; yet it is to be underflood always con-
ditionally as moil Prom ifes are, viz. if the adion or paf-
fioh may be for that Fleet or Prince's advantage; and
therefore if the Fleet or Squadron is beaten and the Ships
are difabled, and left fcarce without any to defend them,
riowthe Soldiers or * Mariners remaining can do no more * im^s de
for their Prince than die, which indeed is to do nothing Mil. Rom. i. 2.
at all, but to ceafe for ever from doing any thing either ^i^^- 6. ^4.
for him or themfelves ; in thofe flraits therefore it is not ^'^'^ ^^t^'?
repugnant to their Oath, called Sacramentum Militare^ to theOath thus
alk quarter or to flrike, and having begg'd a new Life and ohtemperatt^
tal^en it,, they are bound in a new and juft Obligation of nnfumy ^
Fidelity to thofe whom they were bound to kill few ^^^^^^""^Ym^dabi-
hcfore; neither can the Prince or General exped by vir- ll^Jblmpera-
t^eof their former Obligation to him, they ihould kill torihusy juxta
inyin the place where the quarter was given: However, *vires :'dud
this Fidelity hath not its inception from the time of ta- ^"'^'^A^'
•""g quarter j but when the Battle is over, and that tim.e MHUesper Sa-
which cr amentum.
1
192 SDf tl)t iljahal S^ilitaVV pSitt Book i.
which is termed cold blood ; for without all controverfy
if a Ship be boarded, and Qiiarter is given, yet if while
the Fight lafts, the Perfons Captives can by any poffibi-
lity recover their Liberty and Ship, they* may by the
* Sir Thomas "^^^ ^/ ^^^^^y j^^^Y acquire the fame *.
Cbichkydid
fo aboard the Katherine m the War with Holland*
And fince Impunity is granted to fuch unfortunate
Deferters, yet it muft be apparently evident and fully
proved, that they were reduced into a Condition beyond
all hope in the Battle : and therefore the Foot that for-
fook the Unfortunate Pompey before the Field was lo(l,werc
juftly condemned for the breach of the Roman Difciplinc
and Law of Arms : and therefore the Article hath not
pofitively declared Death only, but added, or fuch oikr
Punifhment as the Offence (hall deferve, which Provifi-
on leaves the A6i:ion to be judged -and puniflied by a
Council of War^ who know beft what's to be done in
Cafes of that nature 5 however, a hafe or cowardly yuUini
or crying quarter^ is to be puniJJjed with Deaths and tkl
without Mercy.
'Zencph. C^r. XIV. The obeying of Orders hath in all Ages been in
Plutarch. mighty efteem : Chryfantus^ one of Cyrus\ Soldiers, being
^^'^' m"^- "P<^r^ ^is Enemy, withdrew his Sword, hearing a Retreat
^^^/^^ founded ; but this comes not from the external Lmii
Vide in Tit. Nations i for as it is lawful to feize oh the Enemy's Goodi,
Shipsof War. fo Ijkewife to kill the Enemy, for by that Law the Ene-
mies are of no account ; but fuch Obedience proceeu
from the Military Difcipline of feveral Nations. By th^
Leg. defert. D. Romans it Was a Law noted by Modeflinus^ That whci
iie re Milit. evcr obeyed not his Orders, fliould be punifhed with dead-
though the matter fucceeded well : Now he alfo was fup-
pofed not to haVe obeyed, who out of Order, withoi^^
Li<v. lih. 7. |-|^e Command of the General^ entred into any Fight. Fct
^^«^««;y;«- .^~^^^j^ liberty were lawful, either Stations would be de-
ferred, or (licence proceeding) the Army, Fleet, or Sqw
dron would be engaged in unadvifed Battles, which by ^'
The Order of means is to be avoided. M. Capello^ a Venetian Gentle
Battle is to be man of an antient Extraftion, having the Charge of tl"'
aid^kr-1l* g^i^rding the Venetian Gulph *, met with the 5<?*'j'
festhcv'ar- Fleet y whom he fo affaulted^ that he burnt and ^^^
CHAP. XIII. m f ^e 0aM ^Uitavv patt 193
divers of them ; amongft the reft the Mmiral Galley of to endeavour
Mlier, (aVeffelof vaft bignefs) which he brought with -keep mo^e
him away, and fhc remains at this day a Trophy in the ^^ ^^^ ^^ .
Mend of Venice ; the Service, although Noble and Ho- and though
nourable, and fuch as brought renown to the Republick, they have
yet in regard it was an Afiion exceeding his Commi(rion,^^^^^^^^°^_®
he was adjudged to punifhment (but his great Merit and ^^^ y^^ ^^1^
Alliance preferved his Life :) fuch an exa6b Obedience that they not pur-
Simry expedls to be paid to her Orders, be the Succefs fue a fmall
never fo glorious. And by the Eleventh Article, Every "^^^^^'^l:^
Captain,, Commander^ and other Officer^ Seaman or Soldier ^f ^Yiq Ene-
ojany Ship, Frigate y or Vejj'el of JVar^ are duly to ohferve my be beaten
tk Commands of the Admiral^ or ether his Superior ^ or Com- or ^un. Nor
mander of any Squadron^ as well for the affaulting ^^^7"^^" chafine chafe
ting upon any Fleets Squadron ^ or Ships of the Enemy ^ beyond Vight
t irate or Rebels ^ OY joining Battle zvith them, or making of the Flag,
defence againft them, as all other the Commands of the Ad- and at night
0nral or other his Superior Commander^ the difobeying o^\,f^^]^^.^
,.* , ~ .—^ . /• I 1 ouips arc XXj
which fubjects him to the pains or Death, or luch other j-etum to the
Punilhnient as the Quality or Negled of his Offence Ihall Flag. hp.
deferve. ^J, 23. in
May I. 1666.
* Hiftory of
the Republick of r^«/f^, /tf/. 170, 171.
XV. Again, Every Captain and all other Officers, Ma* Artie, xz.
riners and Soldiers of every Ship, Frigate, or Veffel of War^
foall 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 utmofi endeavour to take^
fire, kill, and endamage the Enemy, Pirate or Rebel, and
ajjift and relieve all other his Confederate Ships -, and if they
Jhall prove Cowards, they are to be dealt with as Cowards ' /
ought by the Law of Arms, which is to fuffer Death : But
Circumftances of things may make alteration of Matters,
therefore there is added other punifhment, as the circum-
ftance of the Offence fhall deferve, or a Court Martial
think fit. By the word Captain the General or Admiral is
not included, but all Flag-Officers and others under them, jlrTeji! i^nhl
are within the purview of the Statute by the denomination ^eratore uni-
Cf the word Captain, &:c. and the Reafon wherefore fuch 'verfirum peri-
Commanders in Chief are not within the Law, is, be- 'll'^plmTfu-
caufe the Weapon of a General is his Truncheon, but of i°"'quamuni^
N all fverfacivitas.
194 ^f tif)^ i^3t»ai 0^tittarr part Book i.
CUarchus Cyro all Other Officers is the Sword j a General is only tocom-
deditconfilium, jyjand, and the reft to execute, for in the latter is the
lk!tmopr.' ^^"ger only of one Man's life, but in the firft is the ha-
ret/ed in/pe- zard of all *, therefore by the Law of Arms no General q:
aoremfi pug- Admiral in Chief ought to expofe their Perfon to apparent
v^ gereret ; Peril, but in cafe of a general Overthrow and manifcft
fugnantem Defeat. Fcter CapponL the Famous General for the Eo-
entm carpers . -t-r ? _ \ r\
mlmagnieffi- renttnes befieging Soiana^ and encamping on the River
eeref, fi ^>ero Cofina -^ ; being in a Place of danger, extreamly incju.
quiddamniac' f^j-^Q^^s about planting his Battery, was ihot with alir-
fittrditw'um ^l^ebufs, immediately upon which the Siege was raifedj
quos fecum ha- yet, on the other hand, let it be examined where any fa-
heret. Polyb. mous battle hath been obtained, and the fame was not
^-I'c'tc'ard I S^^' ^^^^ °"^^ ^y ^^^ Conduct, but likewife by the fingje
'^.jphor^z'i.' ^^^ perfonal Courage of the General.
There are fome Offices to be done, even to them from
whom you have received an Injury ; for Revenge and Pu-
nifhment muft have a meafure ^ and therefore the IlTues
CUero Office I. of the Roman Wars were either mild or neceifary : Now
^ 2. -when killing is juft in a juft War, according to internal
Juftice, may be known by examining the Caufes or End
of the War, which may be for the Confervation of Life
Grotius de ^nd Members, and the keeping and acquiring of things
Jr^/c / I ^c "^^^^^ ""^^ ^^^^ ' ^^^ ^" ^^^ affaulting of Ships, it hap-
2. §.*!.' * ' P^^s that one is flain on purpofe or without purpofe ; on
purpofe can no man be flain juftly, unlefs either for juft
punifhment, as if without it we cannot protect and defend
our Life, Goods, and Country, ^c. That fuch Puniih-
ment may be juft, it is neceflary that he who is flain have
offended, and that fo much as may be avenged with the
punifhment of Death in the Sentence of an equal Judge.
Mijericordia Now we muft notc, between full Injury and mere Mif-
inforiunits de- ^Qxtui'it often intercedes fome mean, which is as it were
Mib'eratd^^^ compofed of both, fo that it can neither be called the Ad
fcuntid male ^^ One knowicg and willing, nor merely the adl of one
agit, nonin- ignorant or unwilling.
^"itus -'^tll' ^^^^ Diftinftion by rhemiftius is fully illuftrated : itf«
^/mVhatha ^^'^'^ ^''^^^ ^ difference betwixt an Injury ^ a Faulty and a
Saying out of Misfcrtune ; altkoiigh you neither ftudy Plato, 7iorreadhi\'
Demcfthenes ; ftotle, yet you put their Bo5lrine in practice ; for you hcvi
e mult ^ j^^^ thought them worthy cf equal punifhment^ who from A^
fion to thcfe '" ^^('■ginning perfuaded the JVar^ and who afterward were car-
rid
wiiom i or-
Chap.^ui. Mti)tmhaimiiitavvp&vt 195
ried with the ftream^ and who at lafi fiibmitted to him^ that toae, not
nowfeemed to have thehigheft Power ; thefirftyou condemned^ ^^^'^ own
the next you chajiifed^ the lafl you pitied. Moil certain, J^aje^^ifeJa-
to fpare Captives or Prilbners of War, is a command of ble.
Goodnefs and Equity ; and in Hiftories they are often
%)mmended, who when too great a number prove bur-
"^henfome or dangerous, chofe rather to let them all go ^"pioJEmili'
than to (lay them, or detain them, though for Ranfoms ; q'^^^^I^ ^^^ c
as in the lall Flemijh Wars with England. So for the fame Carthaoe, pro-
caufes, they that flrike or yield up themfelves are not claim'd that
to be {lain (though there is no Provifion made by Cove- ^^n ftiould
iiant). In Towns befieged it was obferved by the Romans, wou'd ^
before the Ram had fmitten the Wall ; C<efar * denoun- pdybius, 'vide
ceth to the Aduatici^ he woyld fave their City, if before Tacitus AnnaL
thQ Ram had touched the Wall, they yielded; which is ^2.
llill in ufe in weak Places, before the great Guns are fired -, [^fj^pfj^^'^
% ftrong Places, before an Afiault is made upon the i.iSHen.z'i
^Walls -f ; and at Sea, by firing one or two Guns, or hang- Thucyd. lib, •
'''fegout the Bloody Flag, according as the Inilrudions '*C.^farlib. 2,
-are-; however till there be an abfolute yielding or quarter f ^/^^^Ji^*^^"
' cried, by the Law of Anns, as well as the abovementioned Germany be-
^-Artlcle, every Commander and Soldier is to do his utmofl ing taken by
^\o take, fire, kill, and endamage the Enemy, or whatfo- ;^^'^"^^' ^^^
%er may tend thereunto. . ^^^^l^f
burnt, and the
Prifoners all put to Death. PhiL Cofnin. lib. 2. cap. i,
XVI. ^y xht Law of Arms, he deferves punifliment
^who doth not keep off force that is offered to his Fellow
''Soldier ; and though it hath been conceived, if there be
raanifeft danger, that he is not bound to come into his
^Relief; for fuch Commander may prefer the lives in his I will defend
Ibwn Ship before thofe in another, yet that fuffices not ; n^y Compa-
for every Soldier by the Law of Arms is not only bound "!^^"^^^^^
^to defend, but alio to affift and relieve his Companion : ownBIood"^^
now Companions are in two refpecls, either thofe that and partake
are in adual fervice with fuch Soldiers, or thofe that i^ i»is danger,
are not, but only committed to their Protedion or Con- Senec.de Ben.
"▼tjy, which are to be defended and guarded at the fame
peril and charge that a fellow Soldier is ; and therefore
all Ships that are committed to Convoy and Guard, ^'hey Artie. 13.
i^e diligent l^ and carefully to he attended upon without del^y,
N 2 according
1 96 flDf tlje iljabal S!diUtSitt putt Book I.
according to their hftrii^ions^ in that behalf : And whofi.
ever Jhall he faulty therein^ and fhall not faithfully perform
the fame^ and defend the Ships and Goods in their Convoy^
without either diverting to other farts or occafions^ or re-
fufing or negle5fing to fight in their defence^ if they be fst
upon, or aff ailed ^ or rwining away cowardly ^ and fuhmitiim
thofe in their Convoy to Hazard and Perils or Jhall demand,
cr exaU any Money or other Reward from any Merchant n
Mafier, for convoying of any fuch Ships or other Vejfels h*
longing to His Majefly^s Subje^s, fhall be condemned to maki
reparation of the Damage to the Merchants, Owners, pp
others, as the Court of Admiralty fhall adjudge, and aifih
he punifhed criminally according to the quality of their Offeu'
ces, be it by Pains of Death or other Punijhmenty according
GS fhall be adjudged fit by that Court Martial ' ,j£
Prote6lion of Convoys by the Laws of Nations ^ is ofoj(
£t':am hujus gfcat Utility to a Kingdom or State •, therefore when
ret inferis i- Violence is offered to thofe Ships under Convoy, they
magoquadam. ^j.g ^^^ fg^j^ ^q bg ^q^^ ^q them, but to thofe Ships ojf
ter^^pcenam' "^^^ under whofe Guard they pafs ; and therefore when
confur^it. Violence is offered to fuch, publick Revenge is let io,
Plin. Hift. according to that of Tacitus, Hefhould provide for tkir
Nat. 8. 16. Security by ajufi Revenge. Now that fuch Ships may not
fuffer Wrong from their Invaders, two ways may be taken
by their Convoys : firft, by deftroying him or them that
fhall have attempted and commited any hoftile Adt againft
any thing under their Protedlion ; fecondly, by all ways
imaginable endeavour the w^eakning his or their Force,
that he or they may not be able to do any other or further
Hurt ; therefore there is no doubt but Vindication to
thefe Ends is within the Bounds of Equity, though this
is no more than private ; yet if he refpedl the bare Law
of Nature, abftradl from Laws Divine and Human, and
from all not necefiary Accidents to things, it is not un-
lawful, whether the Satisfaction or Revenge is taken by
Convoy Ships themfelves, or the wronged ones under his
or their Guard or Prote6tion, feeing it is confentaneous
to Nature, that Man fhould receive Aid from Man ; and
in this Senfe may be admitted that faying of Cicero, ?i^
Law of Nature is that which comes not from Opinion, tut
innate Virtue : Among the Examples of it is placed Findi-
cation, which he oppofes to Favour j and that none might
doubt
Chap. XIII. <^( tf)t Baikal WUitavv part 197
I doabt how much he would have underftood by that name,
i he defines Vindication, whereby^ by defending or revenging^
^ wskeep off Force and Contumely from us and ours^ who ought
to be dear unto us^ and whereby we punifh Offences.
> Now'thofe Ships that are not under Convoy, but en-
gaged in Fight, are faithfully to be relieved ; and there-
fore if a Squadron fhall happen to be over-charged and
diftrefled, the next Squadron or Ships are to make to- _
wards their relief and afliftance upon a Signal given them.
Again, Ships that are difabled by lofs of Mails, fhot
under Water, or the like, fo as they be in danger of fink^
ing or taking, the diftrefled Ships generally make a Sign
by Waft of their Jack and Enfigns^ and thofe next to them
arc bound to their Relief-: but yet this does not always i
hold place ; for if the diftrefled Ship is not in probability
of finking, or otherways encompafled with tiie Enemy,
the Reliever is not to ftay under pretence of fecuringthem,
but ought to follow his Leader and the Battle, leaving
fuch lame Ships to the Srernmoft of the Fleet, it being
an undoubted Maxim, 'That nothing hut beating the Body of
the Enemy can e ff equally fecure fuch difabled Ships,
XVII. It is not enough that Men behave themfelves
valiandy in the beating of an Enemy, for that is not all,
but the reducing of them into a condition to render right
either for Damage done, or to render that which is right ;
which can't well be done without bringing him to Exi-
gences and Straits y and therefore if the Enemy, Pirate, or
Rebel be beaten, None^ through Cowardice^ Negligence^ ^^//^. i^;
or Difaffe^ion, ought to forbear the purfuit^ and thofe of
them fly ing 'y nor ought fuch either through Cowardice^ Neg- But that is ta
li^ence^ or Bifaffe^ion^ forbear the affjlance of a known be underftood
Friend in view^ to their utmoft Power ^ the Breach ^^f ofj^iV*
which fubjeds the Offenders to the Pains of Death, or at chapte?,
leaft fuch Punifhment as a Court Martial fliall think fit.
Empires are got by Arms, and propagated by Vidlory ^
and by the Laws of War^ they that have overcome, fhould
govern thofe they have fubdued. Hence it is, that Gene-r
rals having compleated a Conqueft in a juft War, and ia
chafe or otherwife have taken the Ships or Goods of the
Enemy, have abfolute Power over the Lives, Eft^tes>
Ships and things that they by Force of hxm,^ hay? acqu.;-.
Fed by the Lavos of Nations,
N 3 Bui
JIu'
198 Mtf^tf^am^ilitaV^pSLVt Book 1.0
But yet in fuch Conqnefts where the reeking Sword .
knows no Law, that is, they are done impune^ without
Punifhrnent, (becaufe co-a6live Judges do grant them
7acit. 3. Jn- their Authority) yet fuch Power may be exorbitant from
ftal. Pompeius ^j^^^ R^^]e ^f Right called Virtue -, and though by the
^dii7^°uamdl'. ^^"^ ^f ^^^ Captives may be flain, yet what Law for-
Uaaerant, bids not, Modefty prohibits to be done, Hence it is tllat
Generals do often reftrain that Power of killing ; for
though fuch Prifoners of War do fight for the Mainte-
nance of an unjuft Caufe, and although the War is begun
by a folemn Manner •, yet all A^^s that have their rife from >
thence, are unjufb by internal Injuftice, fo that they who
*Grot.deJun knowingly do perfift in fighting, * yet ought they not al-
Belhac I' acts, y^^ij^ ^q [-,g {]ain, according to that of Seneca \ Cruel m
•i-lde ciem ^^0'> ^^ys he, i" that have Caufe of Punifhment^ lut havens
(ap. 4. jneafure. For he that in punifhing goes further than k
meet, is the fecond Author of Injury ; and the principal
Reafon why Mercy is often fhewed, is for that Soldiers of
Fortune offend not out of any Hatred or Cruelty, butoor^
• of Duty.
XVIIL Again, Generals m the Meafure of killiil^J
look commonly no further than the Dell:ru6lion of thofe
who by Force of Arms oppofe them -, and though Ships
or Cities are taken by Affault, the which by the Laws of
War fubjedls every individual to the Mercy of the Con-
queror, yet Children, Women, old Men, Priefls, Scho-
^.^ lars', and Hufbandm.en are to be fpared -, the firfl by the
^'.,j!^^r. ^'}L Law of Nature, accordins; to that o{ Camillus : We have
1, ^ 5. Arms^ fays he, not again jt that Age which even in taking
Cities is fpared^ hut againft armed Man : and this is the
Law of Arms amongfl good Men ; by which we are
to note, that by the Words good Men, as is obferved,
"W'e mean the Law of Nature, for flridly by the
Grctiiis, tik Law of Arms, the Slayers of them are without Punifh-
^'^^^-y- ment.
who oblerves,
that many
Pretences may be found out againft ?vlen of mature Age, but agalnll Infants, Calumny
itfelf can iind nothing to fay, as being clearly Innocents. ^
Now that which hath always place in Children that
have not attained the ufe of Reafon, for the moft part
prevails with Women 5 that is, unlefs they have commit-
ted
ichap. XIII. mti)t 0abal09ilttar? paxt 199
r:u fomething peculiarly to be avenged, or do ufurp man-
1/ Offices, as flinging of Stones from the Wails, pour- Herod, in Vu
ngdown burning Pitch, Brimftone, and the like bitumi- ^J;^^^'"'"'''-
tinpus ScutlV firing of Guns, and the like ; for it is a Sex ' ^^''''
li'that hath nothing to do with the Sword, that are capable
5(1 of that Clemency.
i The like for Old Men, who, Papinius obferves, are Papjn. nuUh
ilnot to be flain •, fo for Miniflers of facred things, even 'violabUh ar^
1! barbarous Nations have had them in Reverence and Pre- ^^" y^^ "^n
II fervation ; ^s t\\^ Philijiines^ Enemies of the y^ix;^, did to /^^J.
lithe College of Prophets^ to whom they did no Harm : and i Sam. x. 5.
ilwith thofe Priefls are juftly equalled in this Refped, they ^^'^ ^ S^"^'
•'lat have chofen a like kind of Life, as Monks and Pent- ^^^' ^ '
nts^ whom therefore as well as Priefls, the Canons fol-
(I lowing in natural Equity will have fpared : to thefe Cch's zd /#-
III are defervedly added thole that give tl>emfelves to the/-'^-^S.
^ itudy of good Learning and Sciences ufeful to Mankind,
11 be it in [7///'i;^;;y?//>j, or other publick Schools gy Colleges.
But yet if any of thefe be taken in adual Service, they
then may receive the common Fate of others. So our
King Richard the Firft, having taken the Martial Bifliop
of Beauvais Prifoner, received a Letter from the Pops^
that he fhould no longer detain in Cuflody his dear Son ;
the King fent the Pope back the Armour wherein he was
taken, with the Words of Jacob's Sons to their Father,
See. whether or no this he the Coat of thy Son^
To thefe are added Tradefmen, fo likewife Merchants, Leg.execut.C.
which is not only to be underflood of them that flay for ?^^ res^ign.
a time in the Enemy's Quarters, but jDf perpetual Sub-
jeds •, for their Life hath nothing to do with Arms, and P^ide 2 /«///,
under that Name are alfo contained other Workmen and^^-. 5^. ^
Artificers, whofe Gain loves not War but Peace. Ra*,' 127^/ ' '
Again, Captives, and thofe that yield, are not to be
flain, for to fpare fuch is a Command of Goodnefs and Eqiii-
i}\ fays Seneca -, however it may fo come to pafs, that ^^ Benejic. |,
though the military Power may exempt a Prifoner of^^^-*^-'
War from the Execution of the Sv/ord, yet it may be out
of their Power to exempt or difcharge a Delinquent or
Traitor from the Execution of the Magiflrate, as if the
Fleet were prepared, and the War principally begun fop
the Suppreffion of fuch 5 and the Reafon of this is, if i%
(hould be in the Power of one Soldierj who takes a Trai-.
N 4. ^??
tor Prifoner upon fuch Terms, it would pari ratione be in
the Power of all to pardon ; not that the Article hath no
Lihertinum in- efFc^l, for the Traitor is by that freed from the immedj.
gratum in pri- ^^^ Exccution of the Sword; Sure it is, that iftheyieli
fernjitutlm!^^ iog be \n aperto pr^lto^ methinks abfolute Pardon is im,
Fortefcue, plicitly'in the Con trad : however this is undeniable,
cap. ^6, that having yielded himfelf Prifoner of War, if hcc-
fcape, he forever lofes the Benefit of the Promifc. Nor
are Hoftages to be deftroyed, according to that of Scipid^
Li'v. lih. 28. who fa id : He would not Jhew his Difpleafure on harmkfs
T^t ^^^/- Hojlages^ but upon thofe that had revolted ; and that he wouii
in Nice^aT^ ^^^ ^^^^ i^fi;^;/^^ of the unarmed^ but of the armed Emm),
'Tis very true by the Law of Arms, if the Contraft be
broke for which they became Hoftages, they may beflalnj
Grot, lih. 3. that is, the Slayer is without Punifhment : But yet fomc
tap. II. conceive the Slayer is not without Sin, for that no fuch
Contra6t can take away any Man's Life 5 that is, I fup-
pofe, an Innocent's Life ; but without Controverfy, if
thofe that become Hoftages be, or were before, in the
number of grievous Delinquents, or if afterwards he hath
broken his Faith given by him in a great Matter, the
• Punifhment of fuch may be free from Injury. / .
XIX. Where Offences are of that nature as they raay
feem worthy of Death, as Mutiny, and the like, yc.it
will be a Point of Mercy, becaufe of the multitude of
them, to remit extreme Right, according to that:of
Seneca : The Severity of a General fhews itfelf againft Far-
10 ^ 9uicQuid ^^'^^^^^-^5 ^^'^ Pardon is necejjary when the whole Army is rt-
multii peccatur voUing : What takes away Anger from a wife Man? tht
inultum eft. multitude of 'Tranfgreffors, Hence it was, that cafting of
Magismonendo % L^^g ^^s introduced that too many might not be fub-
fie enim agm-l^^^^ '» punifliment.
dum eft cum
tnultttudine peccantiuntf feveritas autem exercenda eft in peccaia paucarum, Vidt Gailiao
de Pace publ. //^. 11. <:^^. 9, 36.
* FideQrot, lib, 3. cap. il. §. 17.
However all Nations have generally made it a Hand-
ing Rule in the Punifhment of Mutineers, as near as pof-
t ^'^v'ji-^' ^^t>le, to hunt out the Authors, aad make them Exam-
Jure Beih, n. ^1 , ' ^
55. lib. 2. F^s T.
An4
Cfl AP. xiii. flDf t^e |5aftai ^ilitavv psitt 20 1
And therefore by the 15th Article. Jf any Man at Artie, i^^
m timey when Service or A^ion is commanded^ fhall pre-^
(utm to ftop^ or put backwards or difcourage^ the faid Ser-
'ifice and A^ion^ by pretence of arrears of Wages ^ or upon
m pretence of Wages whatfoever^ they are to fuffer Deaths
and indeed the fame ought to be without Mercy, by how
much the more they may raife a Mutiny at a time when
there is nothing expedled but an Adion, and the Ihew-
ing the moft obfequious Duty that poflibly may be ; the
Breach of which may occafion the Damage of the whole
Fleet, and being of fuch Dangerous Confequence, ought
to be feverely puniflied. Guftavus Adolphus upon his
firft entrance into (jermany^ perceiving how that many
Women followed his Soldiers, fome being their Wives,
and fome wanting nothing to make them fo but Marri-
age, yet moft pafling for their LandrelTes (though com-
monly defiling more than they wafh) the King coming
to a great River, after his Men and the Waggons were
pafled over, caufed the Bridge to be broken down, hop-
ing fo to be rid of thefe feminine Impediments ; but
they on a fudden lift up a panick Shriek which pierced
the Skies, and the Soldiers Hearts on the other fide of
the River, who inftantly fell into Mutiny, vowing not
to ftir a Foot further except with Baggage, and that the
Women might be fetched over, which was done accord-
ingly ; for the King finding this ill Humour fo generally
difperfed in his Men, that it was dangerous to purge it
all at once, fmiled out his Anger for the prefent, and
permitted what he could not amend. So likewife the Artie, 19,
uttering any Words of Sedition or Mutiny^ or the endea-
vouring to make any mutinous Affemblies upon any Pretence
whatfoever^ is made Death : And the very Concealers of Artie. 34.
my traiterous and mutinous TraEtices^ TieJignSy or Words^
w any Words fpoken by any to the Prejudice of His Majejly
or Government^ or any Words^ Pra^ices^ or Dejigns tend^
ing to the Hindrance of the Service^ and fhall not reveal them^
fubje£i them to fuch Pains and Punifhments as a Court
Martial fhall think fit. And whereas in any of the Of-
fences committed againft any of the Articles for the Go-
vernment of any of His Majeftyh Ships of War, within
the narrow Seas, whein the Pains of Death are to be
inflidledjj Exequtjon of fuch Sentence ought not to be
'" ■ p:iade
202 €)f t^t j^atai a^iittarp part Booki.
jirtic. 20. made without Jeave of the Lord Admiral *, this of Mutim
is totally excepted, for fuch may be executed immc.
diately.
XX. It is not lawful for Princes or States to make of
Grotiui, 1. 3. their Enemies Traitors, or caufe them to defert the Scn
^. I. §. yj\^^ of their Prince, or to bring over their Ships, Ordi.
nance, Provifions, or Arms •, for as 'tis not lawful for any
Subjedl to do the fame, fo neither to tempt him ; for he
' that gives a Caufe of finning to another, fms alfo him.
felf-, but if a Man will voluntarily, without any other
♦ I T «/*- "^"^P"^^^ ^^^^ ^^^^ ^^"» bring over the Ships^ or Armies,
fu<T.^de acoT ^^ defert the Service of his Prince to ferve another,
rerumdom.Po- thls, though a fault in the Deferter, is not in the Recei-
Ijfb. in excerp. yet : JVe receive a Fugitive by the Law of War^ (faith *
^^^^^ivp ^d' ^^V^^) ^^^^ ^^t ^^ ^^ ^^^ agalnft the Law of War to dm
Proteaor Idem ^^^> '^^'^'^ having defer ted his Princess part^ ele^ed bis Em-
ms docet, my's ; nor are fuch to be rendered, except it Ihall be a^
•\PhiLComtn. gtccd, as in the Peace of ^ Lewis the Eleventh. However
/;^. 4. ftf/.i2. fuch fort of Gameflers, if caught, are to be feverely{)u-
Artic, 16. liifhed ; and therefore it is provided. That if any Sea-
Captain y Officer^ or Seaman^ fhall betray his Trufty tr
turn to the Enemy ^ Pirate^ or Rebels or run awaywitb
their Ship or Ordinance^ Ammunition^ or Provifm^ U
the weakening of the Service^ or yield the fame up to tht
Enemy i Pirate or Rebels they fJj all be punifijed with Death \
Attic. 17. fo like wife. If any defert the Service or the Employ tmi
which they are-in on Ship-board^ or fhall run away or ent'm
any other fo to do^ they are fubje5l to the like pain of Btalk
Terml Ado! ^^^ ^^ ^^^ ^^^ ^^ Nations, fuch Deferters* that run away
9. c. quando ftom their Colours or Fleet before Peace proclaimed and
iic£at,l.2. ?V7 concluded, all Perfons of that Prince from whom they
reos majejlatis fl^d, have a Right indulged to them to execute publick
fies omnis homo l^^VCngC.
piiles. Vide
Grot. lib. I. cap. 5. Hetley Rep. 235. J H. 7. cap. 1, 3 H. 8. cap. 5. HuU. 134.
Liv.l.z.c. 3. XXI. By the Laws of Nations, Spies may be fent to
Cofj'ft^^^' view and furvey the Enemy's Force, Fleet, Station, and
pu„^ ' make difcovery of whatfoever may give Advantage to the
Perfons fending, as is mentioned above •, but being
deprehended they are put to Death ; and therefore ij
Artie. 18. any Perfon fJ^all come from or be found in the nature tij
l^jiAP. XIII. m ti)t j^aftsi ^iiitsitv pan. 203
^'pifs to bring tiny /educing Letters or Mejfages from any
i 7^gfjjy QY Rebels or Jhall attempt or endeavour to corrupt any
, ^-'(imln^ Officer^ Mariner^ or other of the Navy or Fleets
i betray his or their 'Truft^ or yield up any Ship or Ammu-
liti&n, or turn to the Enemy or Rebel ^ he flmll he punijhed
•jgitb Death.
-XXII- Soldiers and Mariners owe all Refpedt and Du-
•y to their Superior Officers ; and therefore when they
ire in Anger, they ought to avoid them : But above all
lot to quarrel with, or give them any provoking Lan-
guage: And therefore by the Law of Arms, a Soldier
vho hath refilled his Captain, willing to chailife him, if
le hath laid hold on his Rod, is cafhier'd, if he purpofe-
y break it, or laid violent Hands upon his Captain, he
dies : * And by the Lav/s of England^ if any Perfon fhall * ^p' ^^!^!'
prefume to quarrel with his fuperior Officer he fliall fuf- jie/L^i^^, ^i
ferfevere Punifhment ; and if he ftrikes him, he fhall /;^r. r«^. 15.
fuffer Death, or otherwife as a Court Martial fhall adjudge
the Matter to deferve f. f Artie. 21.
XXIII. And though Mariners and Soldiers may have
juft Caufe of Complaint, as that their Viftuals or Provifi-
onsare not good, yet muft they not mutiny or rebel,
whereby to diftrad or confound the whole Crew, but
muft make a civil and humble Addrefs to their Com-
mander, that the fame may be amended ; and if the
Cafe be fuch, that the Commander cannot redrefs the ^^'^oft's Max-
fame, by going to Port to fupply the Exigencies, without ^pl]^/g)^,l'
Detriment of the Fleet, (as if ready to engage, or the „on njakt cot^^^
like) they mufl, like Men and Soldiers, bear with the tra remfubli-
Extremity, confidering that ^tis better that fome Men ^^'^•
ihould perifh, nay the whole Crew in one Ship, than the
whole Fleet ; nay, perhaps the whole Kingdom be de-
ftroyed : And therefore if any in the Fleet find Caufe of Com- ■^^'^^^* 22.
plaint of the Umvholfomenefs of his Visuals ^ or upon other
juft ground, he Jhall quietly make the fame known to his Supe-
rior or Captain^ or Commander in Chief, as the Occofion may
deferve, that fuch prefent Remedy may he had, as the matter
w<?y require •, and the faid Superior or Commander is to caufe
the fame to he prefenily remedied accordingly ; but no Perfon
^ipon any fuch or other Pretence, fhall privately attempt
to ftir up any Dillurbance, upon pain of fuch fevere Pu-
niihment as a Court Martial ^\?i\\ think fit to inflid.
XXIV. And
ii.i J .
2P4 iflDf tf^t jljabai ^ilitavv putt Book i
XXIV. And as the Law doth provide that there be
Jrtic, 24. no wajie or fpoil of the King*s Provijion^ or imbezzkmmt4
the fame '9 fo likewife that care be taken ^ the Ships of Wi
neither through Negligence or JVilfulnefs be flranded, fpUt^
hazarded^ upon fever e Penalties. In Fights, and when
great Fleets are out, there are generally Inftrudlions ap.
pointed for all Mafiers^ Pilots^ Ketches-, Hoyes^ and Smoiki
who are to attend the Fleet, and to give them notice of
the Roads, Coafts, Sands, Rocks, and the like-, and
they have particular Stations allotted them, and Ordm
given, that if they fhall find lefs Water than fuch a pro.
portion, they then give a Signal as they are direded
to give, and continue their Signal till they are anfwercd
from the Capital Ships.
But in time of Fight they generally lay away their
head from the Fleet, and keep their lead •, and if they
meet with fuch a Proportion of Water as is within their
Pire6lions, they are to give fuch Signal as they receive
Orders for, and Hand off from the danger -, but the wil-
ful burning of any Ship or Magaziite-fiore of Powder^ Shif-
hoat^ Ketchy Hoy^ or Veffel, or 'Tackle^ or Furniture thml6
belonging , not appertaining to an Enemy or Rebels jhall k
punijhed with Death,
XXV. There are other faults often committed by the
Crew, the which the Law does punifh, as a quarrdki
'Jrtic. 23. on Ship' hoard ; ufing provoking fpeeehes tending te md
Jrtic. 28. quarrel or difturbance ; Murthers ; wilful killing of axj
Artie. 2^. j^^^ . Robbery, Theft-, and the unnatural Sin ofSoim
and Buggery, committed with Man or Beaft : all which, and
all other Faults and Mifdemeanors are punifhed with
Death, or according to the Laws and Cufloms in fucli
Artie. 33. cafes ufed at Sea; and when any Perfons have committed
any of the Offences particularly mentioned in the S'MU
of 13 Car, 2. Cap, 9. and contained in th6 Articles, of
any others, and for the which they fhall (je committed,
Artie 31. the Provofl Martial is to take them into cufiody, and mtfvfif
them to efcape^ and all Officers and Seamen are to be aid-
ing and aflifling to Officers for th? deteftipg ^nd appre-
hending of Offenders.
Touching the Punifhments that the Roman Gcntm
ufed to their Soldiers, when they were at a Court Martid
found faulty, they were commonly proportioned accord-
■ • ■ " n
liAP. xiil. SDf ti)t ^ahal ^iiitatv V^tt 205
I ^ to the Offence committed : Sometimes they were eafy,
tef'which fort were thofe which only branded the Soldier
•i'ith dif^race j others were thofe that came heavy on the
fi'erlbn or Body. To the firft belonged a fhameful dif-
reing or cafhiering a Mariner or Soldier from the
irmy, and generally Jooked on as a matter of great dif- Ig^miniofa
Urace which punifliment remains at this day for offences ^'^#^*
! '3 well in England^ as ill moft parts. A fecond was by
Hopping of their Pay ; fuch Soldiers which fuffered this Fraudatjiipen^
Und of muld, were faid to be Mre diruti^ for that Ms ^^-'^ofi^-^nu
i'lud diruebalur in ffcum^ non in Militis facculum\ the^/^'/^°*
ji /hich is and may at this day be inflided, efpecially on
( jch as fhall wilfully fpoil their Arms, and for the like
3rt of offences. A third was a Sentence enjoined on a
oldier to refign np his Spear ; for as thofe which had at-
hieved any Noble Ad, were for their greater Honour Cenfa Ha*
jafta pur a donatio fo others for their greater difgrace wevQjiaria,
nforced to refign up that Military Weapon of Honour.
\ fourth fort of punifhment was, that the whole Cohort^
i^hich had loft their Banners or Standards^ either in the
Melds or at Sea, were in forced to eat nothing but Barley-
jread, being deprived of their allowance in Wheat, and
very Centurion in that Cohort had his Soldier's Belt or
jirdle taken from him, which was no lefs difgrace among
hem than the degrading (among us) one of the Order of
he Garter : for petty Faults they generally made them
land bare- footed before the General's Pavilion, with long GoodnvwAn-
Polesof Ten Foot in length in their Hands, and fometimes ^^i- Rom.foU
n the fight of the other Soldiers to walk up and down *^7-
with Turff, on their Necks, and fometimes carrying a
Beam like a Fork upon their Shoulders round the Town.
The lafl of their Punifhments was, the opening of a Vein
Dr letting them Blood in one of their Arms, which
j generally was infiidled on them who were too hot and
jbold.
( The great Judgments were, to be beaten with Rods^
I which was generally inflicted on thofe who had not dif-
ij charged their Office, in the fending about that '^ahle cdi-
tkd'TeJfera, wherein the Watch- word was written, or
thofe who had ftoln any thing from the Camp, or that
ihad forfaken to keep Watch, or thofe that had born any
^ falfe Witnefs againft their Fellows, or had abufed their
Bodies-
2o6 0f tlje iSabsi fi^flitstt part^ Book
Bodies by Women, or thofe that had been punifKedth
Lip/, de milit. for the fame Fault, fometimes they were fold for Bo"
Rom, lib. 5. flaves, beheaded and hanged. But the lad, which was
Dialog. 18. |.|^eij. Mutinies, the puniiliment fell either to Lots, ^
Tenth, Twentieth, and fometimes the Hundredth
who were punifhed with Cudgelling *, and with
Punifliments thofe in England have a very near affinir'
as cleanfmg the Ship, lofing Pay, ducking in the Watt^'
beaten at the Capfon's-head, hdifted up the main Yard ea
with a Shovel at their Back, hanged, and fhot to Deatl
and the like.
XXVI. The Admiral may grant Commiflions to infe.
rior Vice- Admirals or Commanders in Chief of any Squj
dron of Ships, to affemble Court Martials^ confiding c
Commanders and Captains ^ for the Trial and Execution c
any of the Offences or Mifdemeanors which Ihali h.
2,y ti. ().fol committed at Sea ; but if one be attainted before tlieir.
4, 5- the fame works no corruption of Blood or forfeiture c
Lands ; nor can they try any Perfon that is not in adl'i
Service and Pay in His Majefty*s FJeet and Ships of War
13 Car, t. But in no cafe where there is Sentence of Death can tb:
tap. 9. Execution of the fame be without leave of the lurik
miral^ if the fame be committed within the narrow St25
Yet this does not extend to Mutiny, for there in ths;
cafe the Party may be executed prefently.
All Offences committed in any Voyage beyond tlii
narrow Seas where Sentence of Death fhall be given up-
on any of the aforefaid Offences, Execution cannot V
awarded nor done, but by the Order of the Commar^r
in Chief of that Fleet or Squadron, wherein Sentence c
Death was paffed.
XXVIL The Judge- Advocate hath Power given,
the words of the Statute,^ to adminifter an Oath inordr
to the Examination or Trial of any of the Offences nu:
tioned in the Statute oi, 13 Car. 2. Cap. 9. and in his ai:
fence the Court Alartial hath power to appoint any othr
Perfon to adminifter an Oath to the fame purpofe. Th
Statute enlarges not the Power and Jurifdicftion of the -A-
miral^ any further than only to the abovementioned 0-
fences, in any cafe whatfoever, but leaves his Authority
as it was before the making of this Statute. Nor do.
give the Admiral any other or further Power toenc
Chap. XIII. ©f ti|c ^aMl ^Uitaxv part 207
'indpunilh ^ny of the- above-mentioned Offences, unkfs
e6tpe be done upon the main Sea, or in Ships or Vef-
Is bein<y and hovering in the main Stream of great Ri-
ers only beneath the Bridges of the fame Rivers nigh
to the Seas, within the Jurifdidion of the JdmiraUy, and isRz.cap.'^,
in DO other place whatfoever.
XXVIII. As Soldiers and Manners for the Honour and Stat.^i.EHz,
Safety of the Realm, do daily expofe their lives and limbs, cap. 3. &Vide
jo^he Realm hath likewife provided for them, in cafe '3» ^^'^i^\
Aey furvive and fhould prove difabled or unfit for Service, ^\^| l\ 2, g.
areafonableand comfortable maintenance to keep them v ^.c.6. where-
ttje which the Juflices of the Peace have povi^er yearly in by Provifion
their Eafier Sejfwns to raife by way of a Tax, for a weekly ^u"^w\3^%-
^r^ief of maimed Soldiers and Mariners. and Orphlns,
The maimed Soldier or Mariner mufb repair to the
Jmjurer of the County where he was prefled, if he be
able to travel ; if he be not, then to the I'reafurer of the
County where he was born, or where he laft dwelt by the
Ipace of Three Years ; but if he prove unable to travel,
then to the freafurer of the County where he lands.
He muft have a Certificate under the chief Commander,
or of his Captain, containing the Particulars of his Hurt
and Services.
The Allowance to one not having been an Officer, is
not to exceed Ten Pounds per Annum j
Under a Lieutenant — -. 15
A Lieutenant ^ 20
}
Till the Mariner arrives at his proper ^reafurer^ they
are to be relieved from 'Treafurer to Treafurer^ and when
they are provided for, if any of them fhall go a begging
or counterfeit Certificates, they fhall fuffer as commoa
Rogues ; and lofe their Penfions : Over and above this
Provifion, His Sacred Majefty hath provided a further
Supplement for his maimed Mariners and Soldiers dif-
abled in the Service, which is ilTued out at the Cheft at
^atbam^ and conftantly and duly paid them ; and for his
Commanders, Officers, and others that ferved abroad,
"C, of his Royal Bounty, hath given to thofe that bear
JeCharader of War, and purchafe the fame by their
fiddity and Valour, a pigus Bounty called Smart-Money,
over
2o8 £Df tf)Z iSaftal ^ilitat^ pan. Book I
over and above their Pay ; and laid the Foundation o(
an Hofpital at Cbelfea, in his Life-time, which his not'
Sacred Majefty hath compleated, and endowed, both fof
' Beauty and Magnificence, excelling all in Chrifiendom.
Nor muft we forget that noble Hofpital at Grui^.
wkb, which for a further Encouragement for Marincii
maimed or worn out mth Age or any other Infirmity in
the Sea Service, our late mod glorious Deliverer King
William the Third, was gracioufly pleafed to give as j
Royal Bounty a ftately Palace at Greenwich for an Hof.
pital, which is fince fo enlarged as to receive a thoufand
Seamen, and when compleat will be able to receive Ev»
hundred more 5 which for Statelinefs and Grandeur, 1
may venture to fay, will exceed any thing of its Kind that
Chrijlendom can produce.
And it muft not be omitted a very laudable Under-
taking is very lately fet on Foot, it being a generous and
voluntary Subfcription by all the Officers of the Navy,
allowing Three-pence in the Pound to be deduded ogt
of their Wages for the Maintenance of the Widows and
Orphans of fuch Commiffion and Warrant- Officers, vb)
died fince the 30th of Auguft 1732, from which time it
commences ; which his prefent Majefty King Gmit II.
was gracioufly pleafed to encourage by the granting iii:
Royal Commiffion, bearing Date the 30th of Juguft 1732,
by which a comfortable Maintenance is fecured by die
following Allowance.
r Captain 45 /. per Annum,
1 Lieutenant 7
Widow of the ^Af^/(?r J ^^
I All other War- 1
L rant Officers j
The greateft aflurance of a Fleet is in the prudent Go-
vernment of the Admiral ; the greateft weakning of itiJ
by difcontent, which generally proceeds from two things,
want of good Vidluals at Sea, and Pay when come home,
thefe are the poor Mariners Aqua vita ; but want of them
is fuch an Aquafortis as eats through all manner of D*|
and Obedience : That Prince that expedls to be wl
ferved and obeyed, (efpecially by an Englijhman) ^
take care that he fuffer not a greater Power iri his Flcc^
in AT. XIII. jflDf tljei^abai WiUtavv part 2^0
jhari his own ; this Commander is Neceflity, which
bfcaks Difcipline at Sea, and creates Difcouragement ar
Land.
XXIX. The Wifdom of the Romans was mightily to FJ^fg Salmuth,
be commended, in giving of Triumphs to their Generals ir.Pandr.Leg,
^ their Return, of which they had various forts ; but ^f^^^y^^P"-^^*
|ic*greatefl: was when the General rid in his Chariot, ^^^/^ ^^-^^
Iflorned and crowned with the Vidlorious Laurel, the Haiicamaf,
fMors with the beft of the Romans meeting him, his ^-f'^- s*
jbldiers (efpecially thofe who by their Valour had puN
^afed Coronets, Chains, and other Enfigns of reward
4br their Condud and Courage) following him : But
what alas ! could thefe to the more fober reprefent any
other but horror, fmce the Centers from whence the Lines
were drawn," could afford nothing but Death, Slaughter
and Defolation on thofe v/ho had the Souls and Faces of
Men ; and if it were pofTible, that the Blood which by
their Commiflions was drawn from the fides of Man^
kind, and for which they made thofe Triumphs, could
have been brought to Rome^ the fame was capable of
making of a Source great as their Tikr -, but Policy had
need of all its Stratagems to confound the Judgment of
a Soldier by excefTive Praifcs, Recompences and Tri-
umphs, that fo the Opinion of Wounds and wooden Legs
might raife in him a greater Elleem of himfclf, than
il he had an entire Body. To allure others, fomething
alfo muft be found out handfomly to cpver w^ounds and
affrightments of Death ; and without this Cc^far in his.
Triumph, with all his Garlands and Mufick, would look
but like a Victim •, but what forrow of Heart is it to
fee palTionate Man, a Ray of Divinity, and the Joy of
Angels, fcourged thus with his own Scorpions ? The
cholericknefs of War (whereby the luftful heat of fo
many Hearts is reduced) ilirs up the Lees of Kingdoms
ind Slates^ as a Tempeft doth weeds and flimy fediment
from the bottom to the top of the Sea, which afterwards
driven to the Shore, together with its foam, there co-
vers Pearls and precious Stones : and though the Can-
non Ihould feem mad by its continual firing, and the
Sword reeking hot by its daily flaughters, yet no good
rnan doubts but they, even they, fball weather out
thofe Storms, and in the midft of thofe merciiefs In-
O ftruments
2;JO
SDf Salutations?. Booki,
ftrumcnts find an inculpata Tutela, who love Juftice, ex-
ercife Charity, and put their Truft in the Great Governir
ef all things.
CHAP. XIV.
M ^alutattonjs i>v %Wv^ of Jsaar, sk
I. Of Salutations paid in all Ages
as an undoubted Mark of So^e-
raignty of this Empire.
II. Of thofe Seas njjhere this Right
is to be paid to the King ^ Eng-
land'.f Flag.
III. In ^vhai manner the King of
England holds this Right y and by
ixjhom to be paid.
IV. Of thofe that (hall negleB or re-
fife to do the fame, ho'w punijhed
and dealt ^withal.
V. Where His Majejly of Great
Britain^ Ships are to Jlrike their
Flag, andnxjherenot.
\l. Of the fainting of Ports ^ Ca-
Jiles, Forts, hoiv the fame is to he
done, and on <vohai Therms.
VII. Of Ships of War their faluting
their Admiral and Commanders in
Chief.
VIII. Of Amhaffadors, Dukes y No-
ble men, and other Perfons of po-
lity, hoiju to be faluted coming
Aboard and landing.
IX. The Admiral cf any Foreign Na-
tion, if met nvithal, hoio la It
faluted and anfn,vered.
X. Of the Men of War or Sliipef
Trade of any Foreign Nations, ft-
luting His Majejifs Ships of
War, honx) to be anfnxiered.
XI. Of the faluting of His Mijiffi
ozvn Forts and Cajlles, and whr.
the Salute ceafes.
XII. Of the ObjeSiion that ferny it
be made againji the Necefuj of
fuch Salutations.
XIII. Wh^ Kingdoms and Sttilis
attribute the EffeBsy mt thtcaujt
of Rights, to prefcription.
XIV. That Kingdoms and Refai-
licks ought not to be difordtru
for the Defea of. Right, infri-
fumption, and the ohjeSimk^i
XII . §, anfiuered.
XV. The Inconvenieng of War, iJii
the caufes jujiifying the f am.
XVI. Of the caufes notjupfiililtl'!
War.
XVII. Of Moderation, andthtvii-
lity of Faith and Peace.
I. TT is evident by what hath been faid, that the in-
X lijh Seas., before the Roman Conq^ueft., ever belonged
to the IJle of Great Britain^ they always claiming and en-
joying the fole Dominion and Soveraignty of the fame,
which afterv/ards accrued to the Romans by Conqueft,
and from them tranflated with its Empire to the fucceed-
ing Saxcn^ Banijh^ and Norman Kings > and in the Reigns
of thofe Princes there were always fomc marks of Sove-
raignty
Chap. XIV. M ^allttatlOtt^* 1 1 1
raignty paid, wherein the right of the fame was evinced
and acknowledged.
II. Now thofe Seas in which this Salutation or Duty
of the Flag are to be paid, are the four circumjacent Seas,
in which all VeiTels whatfoever are to pay that Duty, ac-
cording to the Cuftom of the fame, and the Ordinance of
King John. How far this Right is payable, appears in
the Fourth Article in the Peace between His Majejiy and
the States-General of the United Provinces^ in thefe words :
^ That whatever Ships or Vejfels hi^Ionging to the
[aid United Provinces^ whether Vejj'els of War or other j
whether fingle or in Fleets^ fhall meet in any of the Seas frora
Cape Finil^erre to the middle point of the Land Van Staten
in Norway, with any Ships or Veffels belonging to His Ma-
jefly of Great Britain, whether thofe Ships he Jingle or in
great number^ if they carry His Majejiy of Great Britain^
Flag or Jack^ the aforefaid Dutch Vefjels or Ships fhall
firike their Flag and lower their Top- f ail ^ in the fame man-
ner^ and with as tnuch refpe5l as hath at any time^ or in any )
^lace^ been formerly pra^ifed^ towards any Ships of His
Majejiy of Great Britain, or his Predecefj'ors^ by any Ships
c//^^ States- General, or their Predecefjors.
III. Now His Majefly holds not this Salutation or Re*
fpe(^, by virtue of the League of the Article, but as the
fame is a RIGHT inherent to the Empire of Great
Britain -, and therefore in the firfl: part of the Article it
is declared in thefe Words :
— — . That the aforefaid States-General of the United
Provinces^ in due acknowledgment on their part of the King
of Great Britain^ RIGHT to have his Flag refpeEied
in the Seas hereafter mentioned, fhall and do declare, and
agree. .
Now this Right extends and fubjeds all Nations what-
foever that fl:iall pafs through thofe Seas, and between
thofe Places meeting with any of His Majcily's Ships of S^lden Mare
War, bearing his Flag, Jack, or Cognizance of Service, ^.^"y«^ ^■^*
to ftrike their Top-fail, and take in their Flag in ac- '' ^'^^' ^^*
knowledgm^nt of His Majefif^ Soveraignty in thofe Seas ;
pnd if any fhall refufe to do it, or offer to refifl, they
niay be compelled vi, & manu forti, for His Majejlf^
Honour is by no means to receive the leaft Diminution.
O 2 IV. If
IV. If therefore any of His Majefty\ Subjects fhouldbe
fo negligent or forgetful to pay that Obedience, when it
may be done without lofs of the Voyage, they are ta be
feized on, and brought to the Flag, to anfwer the Con«i
tempt, or elfe the Commander may remit the Name of
the Ship, Commander or Mafter^ as alfo the Place from
whence, and the Port to which fhe fhall be bound, to the
Admiral ; however, before Ihe is difmifled, ihe muft pay
the Charge of the Shot that her Negligence or Forgetful
nefs occafioned, and afterwards may be indicted for the
fame, and feverely puniflied. ^i
V. In His Majefty's Seas, none of his Ships of War
are to (Irike to any *, and in no other Part is any Ship of
His Majefty to flrike her Flag or Top-fail to any Fo-
reigner, unlefs fuch Foreign Ship fhall have firft ftrud,
or at the fame time have flruck her Flag or Top-fail to
His Majefly's Ships.
VI. But if any of the King of £;/^tei's Ships of War
fhall enter into the Harbour of any Foreign Prince or
State, or into the Road within fhot of Cannon of feme
Fort or Caftle, yet fuch Refpe6l mufl be paid, as is
ufually there expedted, and then the Commander is to fend
afhore to inform himfelf what return they will make to
his Salute *, and that if he hath received good AfTurance,
that His Majefly's Ships fhall be anfwered Gun for Gun,
the Port is to be faluted, as is ufual ; but without affurancc
of being anfwered by an equal number of Guns, the Port
is not to be faluted : And yet in that very refped before
the Port is to be fliluted, the Captain ought to inform
himfelf, how Flags (of the fame quality with that he
carries) of other Princes have been faluted there, the
which is peremptorily to be infifled on, to be faluted with
as great Refped and Advantage as any Flag (of the fame
quality with the Captains) of any other Prince hath been
faluted in that place.
VII. A Captain of a Ship of a fecond Rate, being
neither Admiral, Vice- Admiral, nor Rear- Admiral, at
his firfl coming and faluting his Admiral or Commarider
in Chief, is to give Eleven Pieces, his Vice- Admiral Nine,
and his Rear- Admiral Seven, and the other proportiona-
bly lefs by two, according to their Ranks -, but the Com-
Artic. 58. mander or Captain of a Ship is not to falute his Admiral
or
"W
Chap: XIV. ©f ^altttatiOttSf* ^313
(St Commander in Chief, after he had done it once, ex-r
cept he hath been abfent from the Flag Two Months.
VIII. When a Ship of the fecond Rate Ihall carry any
AmbafTador, Duke or Nobleman, at his coming aboard
he is to give Eleven Pieces, and at his Landing Fifteen ;
and when he fhall carry a Knight, Lady or Gentleman
of Quality, at their coming aboard he is to give feven,
and at their Landing eleven ; and the other Ships are to
give lefs by two, according to their Ranks and Number,
of Ordnance.
IX. When an Admiral of any Foreign Nation is met
with, he is to be anfwered with the like Number by aJI
the Ships he fliall falute ; if a Vice- Admiral, the Admir
ral is to anfwer him with twelve lefs ; but the Vice-Ad-
miral and Rear-Admiral, and as many of the reft as he
(hall falute, fhall give him the like number ; if a Rear-
Admiral, then the Admiral and Vice- Admiral to anfwer
him with two lefs ; but if he fhall falute the Rear- Ad-
miral or any other, they are to anfwer him in the likq
Number.
X. When a Man of War or Merchant Man of ano-
ther Nation, or of our own, falutes any of the King's
Ships, he is to be anfwered by two lefs.
?''XL When any of the Captains of his Majefty's Ships
fliairhave occafion tq falute any of the King's Caftles, he
is to give two Guns lefs than they are diredled to give
up6n faluting their Admiral or Commander in Chief, as
aforefaid : But this extends only to time of Peace •, for if
War is begun, no Guns ought to be fired in Salutes, un-
lefs to the Ships or Caftles of fome Foreign Prince or
State in Amity.
XII. Thofe Duties or Obligations being laid on Coni^
manders, they confift of two parts ; the one is that antienX
prefcription, which the Crown of England chims by virtue
of the Soveraignty of that Empire •, the other is but that
Refpedt which is paid as vifible Marks^ of Honour and
Efteem, either to Kingdoms or Perfons publickor private^
to whom thefe feveral Commands are to be obferved y
and yet in thefe which are both innocent and harmlefs
c>f thernfelves, we want not thofe, who being empty of
all that may be called good, want not malice to ftart up.
^ordsj Wfperefore Jhoujd the Lives of Men^ n'cn Chriftiaix
2 14 jSDf ^altttatfonjl* b o o k i
Mefjy he expofed to death and Jlaughter for Jhadows (as they
call them) the Right of Salutation or Compliment bein*
no other in their Opinion.
XIII. Admitting therefore that the Evidence of ori-
ginal Compadls and Rights ftand at fuch remote diftances
from us, that they are hardly difcernabje, and that the
principal of Civil things, as well as natural, is fought for
ina' Chaos or Confufion ; fo that the Evidence of antient
fad:s vefligia nulla reirorfum^ there being no infallible
marks of their pre-exiftence (one ftep doth fo confound
and obliterate another) and that time itfclf is but an
imagination of our own, an intentional, not a real me&-
fure for adlions, which pafs away concomitantly with that
meafure of time in which they were done, for which rea-
fon we talk of antient things, but as blind Men do of Co-
Coh on Lit' lours : Notwithftanding prefcription is fuppofed by mod
ileton, fol. ^^ j,q|^ ^^^ j-^^^ ^^ Evidence, that as they fay, it ought
*^4» jQ filence all Counterpleas in all Tribunals, and by the
prefent allowance which is indulged to it, it either proves
a good or cleanfes a vitiated Title *, and hath this power
in the civil Conftitution of the World, that for Quiet-
nefs fake what it cannot find, we grant it a power to
make.
And if we examine all this ftridly at the two great
Tribunals, the external and the internal, and argue the
Jus of it, as Statefmen and Lawyers do, we can then
raife the Argument of it no higher in the external or
temporal Court, than only this T^hat it is very con-
'uenient it floould have the effe5fs of Right \ lefl Proper tits
and Dominion of things fjould be uncertain^ and by the ap-
parent negligences of Time Owner sfiould be punifhed \ and that
Controverf.es may have a fpeedy end : States looking more
after publick repofe and quiet than after ftrid Virtue ; and
-more after thofe things which are ad alterum^ than that
which concerns a Man's own felf •, for, fay they, ^be
Deonim vjju- Gods look well enough after their own Injuries : States mcd-
riaDoicur^, ^j^ ^^^ £q j^^^^j^ ^j^j^ gj.^^^ Prodigalities as in petty Lar-
cenies, our chief eft Liberty^ Privileges^ or Prerogative in
this Worlds conjifting only in an uncontroulable Rights which
we have to undo ourfelves^ if we pleafe. Certainly if wc
plead at the other Tribunal, as confcientious Lawyers, we
mufl give our ultimate Refolution out of that Law, ^^
inciditur
:1 Chap. XIV. £)f ^alUfattOUSf* 215
inciditur non are^ fed animis : which is not engraved in
Tables of Brafs, but in the Tables of our Souls ; for the
Rule of Law tells us, ^^ principio vitiantur^ ex poft
d fa^o reconvalefcant^ and that prefcription or ufu-caption
i (which is but the lapfe of fo much Time) hath the power
H to-make /^r^«^ ^ Right', yea, to change the morality of
I an Action, and turn Qiiantity into Quality : Upon the
\ Refult of all which taking for granted, what thofe Itub-
( born People do hold, that inftead of being a right, or a
certain Caufe or Proof of it, it only makes a Ihadow or an
opinion of right.
XIV. And when we have taken thofe People by the
hand, and with eagernefs run with them to the very
bottom and end of the line, and there find nothing, we
are but in Pompey^s Aftonifhment, when after his Con-
qut&:of jferufalemy when he had with fuch reverence and
curiofity vifited the San5fum San5forum, and found no-
thing there but a pair of Candleflicks and a Chair, in
which there was no God fitting ; yet for all this Miftake,
he would not (as Jofephtis faith) diforder or rob the Tem-
ple, which he took by force of Arms, becaufe the very Machiavelh
Opinion of Religio7ihathforaething of Religion *, (which made I^^^courfcs,
Jacob accept oi' La ban's Oath by an Idol) fo ought not we ^^^" ^^*
for defecl: of giving the Caufes of the Inception of Pre-
fcription, or of the Right in Prefcription diforder a
State, or be the occafion of fetting of two Nations at en-
mity ; nay, though in Confcience we are fatisfied that it
contains but the Opinion or Shadow of Right : And as to
the involving the Lives of the Innocent, there is no fuch
thing in the matter, for there is not required any thing
which they do not owe, nor are they defigned to Death -,
but if the Caufe be fuch, that they that are Innocent muft
perilh, that is, be expofed to Death by their Rulers be-
caufe they obftinately will not yield that which is right,
but will involve the Lives of their innocent Subjedls by
Force, to defend that which is wn'ong, fuch guilty Go-
vernors muft anfwer for the Defe6t of their own evil
Anions : on the other hand, there can be no doubt madej ^.
but he that hath an undoubted Right, being a Soveraign, ••
the Subjects partake in the fame, and the Indignity offer-
ed to him, they immediately become Partakers in the Suf-
^^ring, for the Satisfaction of which they may, yea, are
O 4 obliged
2i6 flDf ^aiutattcnis* Booki
obliged both by the Law of God and Nations to feek
Reparation Cif their Prince fhall command) viy (^ mm
forti^ by the Hazard of their Blood and Lives,
XV. On the other Hand, as War introduces the great-
eft of Evils, viz. the taking away of Men's Lives, and
that which is equivalent to Life ; fo right Reafon and
Equity tells us, that it ought not to be undertaken without
the greateft Caufe, which is the keeping of our Lives, and
that without which our Lives cannot be kept \ or if they
fhould be kept, yet they would not be of any value to us,
feeing there may be a Life worfe than Death, even Captj.
vity •, wherefore as we are forbidden to go to Law for a
little Occafion, fo we are not to go to War but for the
greateft. Now thofe things that are equivalent to a Man's
Life, are fuch to whom Almighty God appointed the fame
equal PunifhnPient as to Murderers, and fuch were break-
ers into Houfes, breakers of Marriage-fidelity, Publilh-
^rs of falfe Religion, and thofe who rage ia unnatural
Lulls, and the like.
However, before Men's Perfons or Goods are to be
invaded by War, one of thefe three Conditions is re-
quifite.
1. NeceiTity, according to the tacit Contraft in
the firft dividing of Good, as hath been already ob«
lerved.
2. A Debt.
3. A Man's ill Merits, as when he doth great "Wrong,
or takes part with thofe who do it.
Againft which if any thing is committed. War may be
commenc'd, nor is the fame repugnant to the Laws of Na-
ture i that is, whether the thing may not be doneunjuft-
ly, which hath a neceffary Repugnance to the rational and
focial Nature ; amongft the firft Principles of Nature,
there's nothing repugnant unto War ; on the other hand
there is much in favour of it, for both the end of War,
the Confervation of Life and Members, and the keeping
and acquiring of things ufeful unto Life, is moft agreeable
to thofe Principles •, and if need be, to ufe Force to that
\ Purpofe is not difagreeable, fince every living thing hath
\>y the Gift of Nature S.rength, to the end it may be able
^^l^:^' to help and defend itfelf. Befides, Reafon and the Nature
^" yZ'C^ pf Society^ inhibits not all Force, but that which isrepug*
m\
c H AF. XIV. £)f &a\utatiom. zij
^tQ-Society, that is, which depriveth another of his
Right *, for, the end of Society is, that every one may en-
oY his* own ; this ought to be, and would have been,
though the Dominion and Property of PofTeflions had
not been introduced ; for Life, Members and Liberty
\vbuki yet be proper to every one ; and therefore with-
out Injury could not be invaded by another : To make
ufeofwhat is common, and fpend as much as fuffices
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 CommifTion from GOD,
and yet was approved by him ; therefore the Law of
Nature was his Warrant, whofe Wifdom was no lefs
eminent than his Sandlity, even by report of Heathens,
Berofus and Orpheus -, nor is the fame repugnant to the
Hebrew Law or Go/pel^ as the fame is moft excellently
proved by the Incomparable Grotius*. * uh, i.
XVI. On the other hand, the Fear of uncertain Dan- cap. i.
ger, as building of Forts, Caftles and Ships, and the like,
though the former be on Frontiers, the refufing of Wives
(when others may be had) the changing of Countries
either Barren or Moorifh for more fertile or healthful
which may juftly be done ; as in the Cafe of the old
Germans^ as Tacitus relates : So like wife to pretend a Ti-
tle to a Land, becaufe it was never found out or heard of
before ; that is, if the fame be held by a People that
are under a Government ; nay, though the Government
be wicked or think amifs of G O D, or be of a dull Wit ;
for Invention is of thofe things that belong to none •, for
neither is moral Virtue, or Religion, or Perfedion of
Underftanding required to Dominion ; but yet if a new yisior. dehd.
Place or Land ihall be difcovered, in which are People rel. i. «. 31.
altogether deftitute of Reafon, fuch have no Dominion,
but out of Charity only is due unto them what is necelTary
for Life ; for fuch are accounted as Infants or Mad-men,
whofe Right or Property is transferred, that is, the ufe yi^or ie Jurt
of the fame, according to the Law of Nations ; in fuch BelU^ ». 5,
Cafes a charitable War may be commenc'd. ^» 7> ^*
XVII. To prevent all the fad Calamities that muft
inevitably follow the ungoverned Hand in War, Faith
wuft by all Mcaps be laboured for \ for by that, not only
every
2i8 sot ^aintatiom.
every Common-Wealth is conferved, but aJfo that greater
Society even of Nations, that once being taken away
then farewel Commerce, for that muft be then taken
away from Man ; for Faith is the mod Sacred thing that
isfeated in the Bread of Man, and is fo much morerelj.
gioufly to be kept by the fupreme Rulers of the World
by how much more they are exempted from the Punilh'
ment of their Sins here than other Men : Take away
Faith, and then Man to Man would be (as Mr Hokk
obferves) even Wolves •, and the more are Kings to
embrace it, firft for Confcience, and then for Faith and
Credit fake, upon which depends the Authority of their
Government. The AmbafTadors of Juftinian addrefled
Procopius Per- their Speech to Chofroes after this manner : Did we mt fee
'^^^' ^' you here wi lb our own Eyes^ and pronounce thofe Words iti
your EarSy we fhould never have believed that Chofroes tk
Son ^^fCabades, would bring his Army^ and enter forcibly
into the Roman Bounds^ contrary to his Leagues^ the on!)
Hope left to thofe that are affli5fed with War ? For what is
this, but to change the Life of Men into the Life of wild
Beafts ? Take away Leagues^ and there will be eternal Wan^
and Wars without end will have this Effe5fy to put Mm
hejides themfelves, and divefi them of their Nature, If then
a fafe Peace may be had, it is well worth the releafmgof
all or many Injuries, LofTes, and Charges, according to
that in Arifiotle : Better it is to yield fome of our Goods k
thofe that are more Potent, than contend with them and hft
all \ for the common Chances of War muft be confidered,
which if fo, the Scope of the principal part of this Firft
Book may be avoided, and we let into the peaceable
' Track of Traffick and Commerce.
The End of the Fif^Jl Booh
1
BOOK
[ 219 ]
O O K II.
CHAP. L
d
ii
r)e tl^e Utim§ mfixlitgi snu SDbligattoniS of
mnm anu partnevgs of ^i^tps! in Cafes?
pjtbate.
O/'Navigatlon /« general.
I. 0/ Owners their fe'veral Po<voers
o'ver thofe Vejfeh they are Partners
in. Trover for a part of a Ship.
II. Where Ships are obliged to make
a Voyage before they can he fold ;
and nvhat may he done <when part
proieft againji a Voyage.
V. Th£ Majier hoix) brought in by
the Onjuners, and the reafon why
infuch a Manner.
J , Where the Oivners ought to be
repaired for the Damages of the
Majier.
/I. Where Ships broke in pieces de-
tttkine the Partnerjhip as to the
V^PK and nvhere not.
/U. Where a Ship Jhall be the Buil-
der*s^ and ijuhere only his '-whofe
Materials f>e njcas ereSied <uoith.
i^III. Where Property of the Veffel al-
tered changes not that of the Boat.
iX. A^hipfor the ad of Piracy be-
comes forfeited ', yet ^ bona fide
fold, mchere the Property may be
quefiioned.
X. Monies borroived by the Mafier^
ijohere the fame obliges the Omuners,
and nxihere not.
XI. Whether he that obtains an tin-
lanjofiil poffeffion of a Ship, Jhall an^
fnjcer thefullFreight totheOvuners,
XII. And <njhere the O^juners Jhall
ha<ve their Freight ^ though they
lofe their Lading.
XIII. Where a Ship may become a
Deodandt and 'where not* Not for"
feited till Condemnation,
XIV. Honxj reco'verable by the La<vjs
o/'England.
XV. Foreign Ship naturalized ufon
fale needs not to make Oath again
upon the Nenv Afi.
Forfeitures for deli<vering
Goods ivithoui paying the Du*
ties.
XVI
It
I
N the precedent Book having obferved fomething of
the Rights of Perfons and of Things in a ftate of
Nature., and how neceflarily they came at firft to
3e appropriated, and how equitably they are now continu-
ed in thepolTcflion of thofe to whom they are configned by
nhe donation of others, by the Laztjs of Nations , and main-
^ tained
D
ti^
D
220 £)f oujnetis an& l&attnerss of ^i^tps?* Book i
tained or deftroyed by the equity of thofe various
which rule and govern them in reference to matters ylt!^
Uck^ all which is juftified by the Scripture itfelf : h
not now feem improper to examine the private
changing the fame, and of the contingencies and ad
tages that wait on that which we properly call CoJ
merce. ^ .^
The Great Creator having finifhed his Mighty WAk
and given Man that Dominion which he now enjoys, aj
well over the Fifh in the Seas, as the Beafts in the Field,
he was not forgetful of bellowing on him thofe thing
which were neceffary for the Government and fuppon
of the fame, creating at the fame time Trees i^icli
grow as it were fpontaneoufly into Veflels and Canoosi
which wanted nothing but launching forth to render the:
ufeful for his. accommodation, which afterwards he by
his Divine Gen ills (inipired by that Mighty One) findlr:
Materials, hath fince fo compleated and equipped, aj ti
render it the mofl beautiful and ftupendious Creature (no:
improperly fo called) that the whole World canproooa
which being not retarded by lett of Winds, or other cor,
tingent accidents, fubmits itfelf to plow the unknow:
paths of that vafl Element, to brave all Encounters a
Waves and Rocks, to fathom and furvey the vaftimmen-
fities of the very World itfelf, to people, cultivate, inc
civilize uninhabited and barbarous Regions, and topro-
claim to the Univerfe the Wonders of the ArchittU, the
Skill of the Pilots and, above all, the Benefits of Comma \
fo that it is no wonder at this day to find Nations contend-
ing who fhould furpafs each other in the Art of Nafiga
tion, and to monopolize if pofTible, the very Commoc
and Trade of the World into their hands ; and that, a!
by the means of this mofl excellent Fabrick.
Areth.poji H. Hence it is, that Ships and Veffe)s of that kind be-
Joan. Faber. jng originally invented for ufe and profit, not for plealiiR
']ator'num' ^^^ delight, to plow the Seas, not to lie by the Walk
3^. inji. de ' to fupply thofc of the Mountains as well as thofe on tit
chlig. qua ex Sea Coafts. ,
^uafidelia. Therefore upon any probable defign the major parte
the Owners may even againft theconfent^ though not ^t^
out thQ privily and knowledge pf the reft, freight out^lk-'
VelTel to Sea. ..
dAP. I 0f ©tBttetiS ana ]^attmv& of &t)ip^, zi i
vjf it fhould fo fall out that the major part pr^/^ agaiinll:
the Voyage, and but one left that is for the Voyage, yet
the fame may be efFeded by that party, efpecially If there
be (({uality in Partnerfhip .
.pButthe Admiralty compels them to give Security for h.Raym.izi^.
licr fafe Return 5 and the Recognizance may be fued S. P, ibid,
tnere. ^ ^ ^
^Buf, where two Part- Owners (ent out the Ship, with-
out the Confent of the third, and fhe was loft ; the
third mud bear his Proportion of the Lofs, becaufe he
would have had his Share of the Profits, if any. i. Fern,
iQj, But note in this Cafe there had been no previous
Application to the Admiralty, as there ought to have
been. '^'-' -
The Account of the Voyage fettled by a major part of i p^ern. 465.
the Part- Owners, binds the reft.
As an encouragement to the Building of Ships being of
that univerfal, Advantage to the Publick in point of
Trade, and Commerce, to contrive and veft the Owners
propriety in them, both by the Common Laws of this
Realm, and the Maritime Laws, it is provided that in
cafe a Ship be taken away or the Owners difpofifefled, they
may maintain an Adionof Trover and Converfion for
an 8th, -'a i6th, or any other Part or Share of the
lame. . .. :iO'-
Inan Adion on the Cafe, the Plaintiff declared that he Tenants in
was Owner of the i6th part of a Ship, and the Defen- Common of
dant Owner of another 1 6th Part of the fame Ship, and ^ ^^^P*
that the Defendant fraudulently and deceitfully carried
the laid Ship ad loca tranfmarina^ and difpofed of her to
bis own ufe, by which the Plaintiff loft his i6th part
to his damage : On not guilty pleaded, and verdid for
the Plaintiff, it was moved in Arreft of Judgment, that
the Adion did not lie, for tho' it be found deceptive,
yet this did not help it, if the Adion did not lie on the
fubjcd matter ; and here they are Tenants in Common ^^f § ^23,
of the Ship, and by Littleton between Tenants in Com- i /»/?. 199. ^.
mon there is. not any Remedy, and there cannot be any 200. a.
fraud between them, becaufe the Law fuppofes a truft ^''^^- ^9°*
and confidence betwixt them •, and upon thefe Reafons ^?^'
Judgment was given ^uod ^fcrens 7iil capiat per billam.
Graves
to
%tz m^^mu anb Partners! of %^^% Boc^
Graves againft Sawcer^ Raym, 15. i' Levinz 29. j.
I Keeble 38.3 Leon. 228. Bennington againft Bennm<l-
Leg. Fin. C. §. III. 'Owners by Law can no ways be obliged to cV-
pro Socio ^ nue their padion or partnerfliip without funderin» j b
^^''Jjf' yet if they will funder, the Law Marine requires fomeco'
fiderations to be performed before they can do fo. A:
^a'tctZln' ^^^^^^^^^ ^^^^^ ^^^P ^^ "^^^y t>«-"Jt, and never yet'made
Zpro7c7r' ^^y^ge» or is newly bought, flie ought to be fubjeft.,
one Voyage upon the common out read and hazard, be.
fore any of the Owners fhall be heard to funder and d;:-
charge their parts •, but by the Laws of England theOw-
ners may, before any fuch Voyage, fell or tranfmit the::
Right.
Bart.i^PauL If it falls out that one is fo obftinate that his confer:
%nai'o\'''^'' ^^""^^ ^^ ^^*^' y^^ ^^^ L^^^ "^^^ enforce him either t.
fZdumff!'*'^ ^o^^' o^ ^o ^^^^ ^^^ proportion •, but if he will fet noprice,
iocat. the reft may out-rigg her at their own cofts and chaise?.
and whatfoever Freight Ihe earns, he is not ,to have an,
ftiare or benefit in the fame. But if fuch VefTdl happen
to mifcarry or be caft away, the reft muft anfwer him ,V;
. part or proportion in the Veffel.
vl^is i^'juris ^"^ ^^ ^^ Ihould fall out that the major part of the Owe-
in Leg. utique ^^s rcfufe -to fet out the Vefifel to Sea, therQ by reafon c
para culpa de the unequality they may not be compelled ; but then [1
rei undic. & VefTel is to be valued and fold : The like where partof tiic
^ na^il'^de^^^' Owners become deficient or unable to fet her forth 10
ufufiua. Sea.
IV. The Mafter of the VefTel is eligible by the Part
Leg.mnaliter Owncrs in proportion, not by the majority, and hethz:
fail "^"^ ^ ^^ ^^^ ^^^^ ^^ ^o ^^ preferred. The Wifdom of the la:;.
Ages have been/uch, that few have gone out in that cor.
dition, but thofe that have commonly had fliaresorp::
"^ in the fame VefTel. In the preferring therefore of a Mi-
'1 4 /«///. 1 46. fter, his ability and honefty is to be confidered, fmceoi
him refts the charge not only of the VefTel, but oiihhr
i8i7.8,«.5S. dmg •, their very actions fubjeding the Owners t to anfwc
for all damage that ihall be fuftained by him or his Ma:
'*HilL2'i,Car. ners, be it in the Port or at Sea, to the Lading or
2. B. R Mor/e of the Merchant or Laders, and they are made liable i
TnLZ^'' ^^^^^y ^^^^ Common Laws * oi England, as the Law:
Caup.stah. Marine.
Leg, I. Sea. z. ^ ■ ;,
Chap. I. SDt ^Mxm attD mvttim Of &i)ip&. 223
V. If the Mailer commits offences either negligently
or wilfuUyj he ihall be refponfible over to his Owners for.
the reparation of damage ; nor are they bound to join,.;
but may fever and fue apart as well by the Common Law * * Stanley ever-
the Marine : So likewife' if the Ship hath earned fi^'^y^'f-
fj-eiffht, and part of them receive their parts, the reit "^ ^^^
-^ay^bring their A6lion for their fhare without joining
with the others.
The Defendant and feven other Perfons were proprie- Mailers and
tors of a Ship, in which Goods were ufually tranfported Owners re-
fer hire, and the Fhmtiff onerat Goods upon the Ship to %o^^a^^«-
lie carried for hire, from London to 'Toppam in Comitatu
dnon, and that the l^efendant received them, and un-
dertook to bring them to Topjbam, but that he not being-
careful of his Duty but negleding it, iam improvidentur
placed and carried the faid Goods, that tho* the Ship
fafely arrived at "Topf/oam^ yet the Goods were fpoiled.
And upon non culp, pleaded. The Jury found a fpecial
Verdid, W2. That the Defendant and feven other
Perfons were Proprietors and Part- Owners of the Ship,
that the Ship had a Mailer heat in her by the Part-
Ovvners who had 60 /. Wages for every Voyage between
l^o^jham and London^ that the Goods were delivered to the
Mafter, none of the Part-Owners being prefent, and that
there was not any Contract made with them or any of
them by the Plaintiff, that the Ship arrived fafe to ^op-
Iham but the Goods were fpoiled. Etfipro ^er* pra
^tr'finonpro Def.
And two points were made. . -
1. If the Proprietors are chargeable no Con trad being
made with them, and there being a Mafter that is charge-
able in refped of his Wages, according to the. Cafe of
%-[e and Slue, yet per Holt Ch. Juftice clearly, that tho*
the Mafter be chargeable in refpecl of his Wages,- fo are
the Proprietors in refped of their Freight that they
receive for the carriage of the Goods, at the Eledion of
the Plaintiff.
2. If the Aftion lay againft the Defendant alone, it
appearing that there are other Part- Owners not made
C|efendants •, and held that the A^ion did not lie againft
him folc, but ought to have been againft all the Part- •
Owners,
224 Of SDtuners ana partnerjs of ^fiips. Book ii.
Owners, for all the Part- Owners are chargeable in
refpcdt of the Profit they make by the carriage of the
Goods, and that in point of Contradl upon their under-
taking, be it implied or exprefs, and are not chargeable
as TrefpafTers, for then one might be chargeable alone
but in point of Contrad upon their Receipt of the
Goods to be carried for hire. ] udgmtnt pro Def en, ^
by 3 Mod. 321. Bo/on con, Sanford 3 Levinz. 258. where
it is with a Cur. advifare^ mes le Reporter ut audivit Judg-
ment pro Defen.
Leg. inter flu VI. If a Ship be broken up or taken in pieces, with an
^ta^amW.^de ^"^^"^ ^^ convert the fame to other ufes; if afterwards
*ver.ob£. upon advice or change of mind, fhe be rebuilt with the
fame Materials, yet this is now another, and not the lame
Ship, efpecially if the Keel be ript up or changed, and
the whole Ship be once all taken afunder and rebuilt,
Leg, quoding, there determines the Partnerihip quoad th^ Ship. But if
/«. F. de leg. jj gj^ip i^g j.jpj yp jj^ parts, and taken afunder in parrs, and
repaired in parts, yet fhe remains flill the fame VeiTel and
not another ; nay though fhe hath been fo often repair-
ed that there remains not one flick of the Original Fa-
brick.
Leg. Mufiusff. VII. If a Man (hall repair his Ship with Plank or other
de ret vtndic. ]y[aterials belonging to another, yet the Ship maintains
and keeps her firft Owners.
ff.Iih.e.tit.i, But if a Man take Plank and Materials belonging to
A?- 01- another, and prepared for the ufe of Shipping, and with
them build a Ship, the property of the VeiTel follows die
Owners of the Materials and not the Builder.
leg.fi ex meisf But if a Man cut down the Trees of another, or takes
ff. deacq rer. Timber or Planks prepared for the eredling or repairing
tn^e^eruXfi ^^ ^ Dwelling-Houfe ; nay, though fome of them are
quUfic.ff. de for (hipping, and builds a Ship, the Property follows no:
fign. aa. the Owners but the Builders.
Leg.Marcellus VIII. If a Ship be fold together with her Tackle, Fur-
in §. arma- ^iture. Apparel, and all other her Inftruments thereunto
7T^inicat belonging, yet by thefe words the Ship's Boat is not con-
. Rolls A-' veyed, but that remains flill in the Owners ; fo it is if the
bridg, 530. Ship be freighted out, and afterwards at Sea fhe commits
Bald, in Leg. Piracy : The Ship is forfeited, but the Boat remains U
<umproponas j-q j-j^g OwHCtS f.
Cad. de Nau-
iic. efccnare, p^^^
num. 6.
CiiAP. I. M^^nevs anh mttnevs of &^ip§, 225
And though Baliaft is generally ufed in Shipping by
thofe Ships that are freighted outwards, in order to bring-
ing home of Goods, yet is not the fame any part of the
Furniture of the Vefiel ; and fo it was adjudged in debt on
Bod, The Condition was, that whereas the Plaintiff had
jj^ght of the Defendant a Ship, if the Plaintiff fhall en-
■ay the laid Ship with all the Furniture belonging to the
linie, without being difturbed for the Ship or any Furni-
ture appertaining to it, that then, &c. And the cafe fell
out to be, that after the fale of the Ship, a ftranger fucd
the Plaintiff for certain monies due for Baliaft bought by
the Defendant for the fame Ship, in which Suit he ob-
nined Sentence, upon which the Ship was feized, The
Qucftion was, If Baliaft be Furniture for a Ship or not, Zz'«/!?r*s Cafe*
it was refolved that it was not ; for though it may be as ^^^^' 4^> 47*
neceffary as Sails, yet it is not always fo, for fometimes
they fail without Baliaft, for the Merchandize itfelf may
be iufficient to anfwer that purpofe.
IX. If a Ship commits a Piracy, by reafon of which flie Bhigle/s Care^,
becomes forfeited, if before feizure fhe be Bofia fide fold, ^^^^^ Abridg.
the property ftiall not be queftioned, nor the Owners n- ^r?*
J- /I J f ! r ~ ^^Z' lib. 14.
divelted ot the lame. ///. i. §. 17.
A Mortgagee of a Ship, by Deed, intrufts the Mort-
gager with the original Bill of Sale ; the Mortgager in- i.P.miliam$
dorfes thereon fublequent Mortgages or Bills of Sale of 393» 394-
feveral Parts of the Ship, the firft Mortgagee acquiefces,
he Ihall be poftponed.
X. If a Mafter fliall take up Monies to mend or vi6lual ^
his Ship where there is no occafion, though generally the
Owners fhall anfwer the fad of the Mafter, yet here they
Ihall not, but only the Mafter. But if there were caufe of
"tending the Ship, though the Mafter fpend the Money BrUgpyanU
another v/ay, yet the Owner and Ship become liable to ^^f^> H^bart^
the fatisfadlion of the Creditor; for it were very ^J^^^^fon-^^' '^^g]^'
«ble that the Creditor ftiould be bound to take upon him
the care of repairing the Ship, and fjpply the Owners
foom, which muft be fo, if it fliould be neceffary for him^
to prove that the Money was laid out upon the Ship ; ^o on
fne other hand, it ftands with reafon that he, be fure that
^ lends his Money on fuch an occafion as whereby the
MafterMacl may oblige the Owners, which he cannot do
otherwife, unlefs he knows that the Money borrowed was
P neceffary
1
TT '
2> 26 (2Df SD^mnm anfi i^attnm o( ^Ups. Book 11.
Glof African, ncceflary for the repair of the Ship -, and therefore if the
jupereod. leg. gj^jp y^2i\itftd fome repairs, and a far greater and more
^* extravagant fum was lent than was needful, the Owners
fhall not be liable for the whole.
i.P.JFilJiams The Eaft- India Company's Agent in the Indies bought
395* a Ship and her Cargo of the Commander, who had no
Power to fell her ; the Owner had the Value decreed for
Ship and Cargo (the Value being found by a Jury) and
/«J/^ Intereil, viz, 12 I. per C en I.
Dig. Uh.G. tit. XI. If a man gets pofTefTion of a Ship having no Title to
1,62.^ lib. ^i^g fame, by the Law Marine, he Ihall anfwer fuch da-
\' I '&Papi- ""i^g^ ^s the Ship in all probability might have earned*,
-j/^7«onthe and the reafon of that is, becaufe the only end of Ship-
fame Lasv. ping, is the employment thereof : but if a Warrant be
direded out of the Jdmiralty to the Marjhal^ to arreft
fuch a Ship and Saho Cuftodire^ who by force of the lame
enters into the fame Ship, though the Warrant does not
Creamer mention that the Officer fliould carry away the Sails of
yrjHs Jockhy, ^^^ i^mt Ship, yet he may juflify the taking the fame,
iSsT^ for that he cannot Salvo Cujlodire the fame Ship, unlefs
he carries away the Sails.
XII. A Ship is freighted out, accordingly fhe receives
BlgejlJih. 19. in her Lading purfuant to agreement, afterwards an Em-
iit. 2. 61. bargo happens, and the Lading is taken as forfeited, yet
linlm^eLaw ^^^^ Owners fliail notwithftanding receive Freight^) for
* here is no fault in them, but only in the Merchant.
XIII. In Aqua dulci a Ship may become a Deodand,
but in the Sea, or in Aqua falfa^ being an Arm of the
c^hjl.fil. 58. Sea, no Deodand of the Ship or any part of it, though
any body be drowned out of it, or otherwife come by their
death in the Ship *, becaufe on fuch waters, Ships and
o;:her VeiTels are fubjed to fuch dangers upon the raging
weaves in refped of Wind and Tempefl ; and this divcr-
. fity all our antient Lawyers do agree in, and it does more
efpecialiy appear in the Parliament Rolls, where upon a
Rot. Parliaf}:. Petition it was defired, 'That if it Jhotild happen that uny
5iii<^. 3. j^^j^ ^y. ^Qy jijQui^i ^^ drowned by a fall out of any Sbipi
3X2.I'. 106. ^^^^^^ ^^ ^#4 ^^O' J^f^^ld he no Beodands : Whereupon
4^^.2.3.3^. the King, by great advice with his Judges and Council
learned in tne Laws, made anfwer, The Shipy Boater
Fejfely being upon the Sea floould he adjudged no Deodandt
i H. 5. « 35. i>i4i i^ifjg upon a frejh River it Jhould he a Deodand -«^
Chap, t ^t S^lx^nm SttS l^avtum Of ^f^lpQ, ^2f
lat the King will/hew favour. There are abundance of
other Petitions upon the like occalion in Parliament.
A Ship lying at Rotherhith^ in the County of Kent^
near the ihore, to be careen'd and made clean, it hap-
pened that one of the Shipwrights being at work under
her at low Water, the Vefiel (then leaning afide) fortuned
to turn over the contrary fide, by means of which the
Shipwright was killed : Upon a Trial at Bar, where the
Queftion was, Whether this Deodand did belong to the Ukh. igCin
E^rlo^ Salt shry, who v/as Lord of the Manor, lying 2- t»B,R.
contiguous to the place where the Man was flain, or to
the Almoner as a matter not granted out of the Crown ?
la that cafe it v/as refolved, That the Ship was a Deodand^
and the Jury thereupon found a Verdi6l for the Lord of
Salisbury, that the fame did belong to his Manor.
On Impoftation of prohibited Goods, the Ship cannot T/V^ i r.?/?. 47.
be feiz'd as forfeit till a Condemnation in the Exchequer ^ ^jf'j'^^l'
thereon. Hor?te againft Ivye 2 Keehle 604.
XIV. Thus Men from their necefiity and fafety having
from hollow Trees, nay Reeds, Twigs and Leather (for
fuch were the rude beginnings of thofe ftupendious things
we now admirej advanced the Art to that degree, as to
render it now the moft ufeful thing extant 5 and as the
Mathematicks, Ailronomy and other Sciences have ad-
ded to its fecurity, fo have fucceeding Ages from time to
time, provided Privileges and Laws by which it hath al-
ways been regulated and governed, the which upon all
occafions, and in all Courts have generally had a genuine
conftrudlion as near as might be to the Marine-Cultoms ;
and therefore at this day, if a Ship be taken away, or the
Owners difpoffeft, they may maintain an A6lion of Tro-
ver and Converfion for an eighth or fixteenth part of the
lame, as well by the Common Laws of this Kingdom,
as the Law Marine, and they need not join v/ith the reft
of their Owners.
XV. Upon an information tarn qiiam^ grounded upon ShiplNatara^
the Ad of Navigation, for importing Goods in a Foreign ^^^^'^'
Ship contrary to that A<^, The queftion was, whether or
not, if a Foreign Ship naturalized by the new, A6t, being
a Prize taken in the late War with Holland^ be afterwards
fold to a Foreigner, who fells her again to an Englijh Man,
whether or no the Oath muft be taken again according
»* Pa to
228 €)f ©toners anti FattnerjS of ^fiipg^ Book ii
to the A61 ? Per Curiam it need not, becaufe that the
Ship was once lawfully naturalized. Hardres 511. Martin
againft Verdue.
Forfeitures XVI. Stat. 4th and 5th TVill. and M?. cap. 15. ^, n.
for delivering ^\\ perfons who by way of Infurance, or otherwife, fhalj
ou°°payTng " Undertake to deliver any Goods imported from beyond
the Duties. Sea without paying the Duties payable for the fame, or
any prohibited Goods, ihall forfeit 500 /. *^K^
5- ^5' And all who fhall agree to pay any Money, for the in-
Turing or conveying any Goods imported without paying
the Duties, or any prohibited Goods, or fhall receive
fuch prohibited Goods, or fuch other Goods before the
Duties are paid, knowing thereof j fhall alfo forfeit for
every Offence 500 /.
^' '^- And if the Infurer or Manager of fuch Fraud be the dif-
coverer^ he fhall not only keep the Infurance Money given
him, and be difcharged of the Penalties to which he is
liable, but fhall have one half of the Penalties impofed
upon the Parties making fuch Infurance or receiving the
Goods as aforefaid : And in cafe no difcovery be made by
tl^e Infurer, and the Party Infured fhall make difcovery
thereof, he fhall recover back his Pr^mium^ and have one
Moiety of the Forfeitures impofed upon the Infurer, and
be difcharged of thofe impofed upon himfelf.
§.17. The faid Penalties and Forfeitures to be recoverable
according to the Courfe of the Exchequer,
5- 18. No Penalty to be recoverable, unlefs profccuted \vithin
Vide Ch. xii. 1 2 Months after the Fa6t committed.
Sec, ult*
CHAP.
>■♦
ffflfti"
[ 229 ]
C H A P. II.
ilpaCet?} oE %>f)ip0tf)m action confiiOewti in
reference to cafeji piibatt anD publico
A Mafler or Skipper his condition '
confidered, in reference to his Inte-
reft and Authority generally. The
Mafier only liable to Deviation
and Barret ry.
[. If Goods be lof or imbezxled, or
any other detriment happens in a
Port, ivhojhall anfwer. Mafer
chargeable to pay the Duty of
«ioeigha^e.
II. "[be ^Duty of Mailers of Ships,
as if they Jhall fet Sail after an
Embargo ^ ^jubofjall anfnjoer ?
V. Of faults afcribed to him before
departure in tempejiuous Weather y
ftaying in Port, &c.
'. 0<ver-charging or onjer- lading the
Ship above the Birth-mark ; or re-
ceipt of fuch Perfons on Ship-board
as may hazard the Lading.
II. Of Lading aboard in the Ships of
Enemies, his own proving difa-
hied.
/II. Of Jhipping Goods elfevohere
than at the puhlick Ports or
Keys ; and the taking in prohibit-
ed Goods.
, ii^III. Of ^wearing unlanxful Colours
or Flags, and of yielding up his
Ship coivardly, if affaulted, vohere
liable, and <vohere excufed.
IX. Of carrying fictitious Coquets
and Papers, and refufing payment
ofCuJioms and Duties.
i^'.Of fetting Sail ^th infufiicient
-, Tackle, and of taking in and de-
livering out voith the like ; atid of
his Charge of Goods till fafely de-
livered. I
XI. Of departing luithout giving »*-
tice to the Cuflomer.
XII. Of Faults commited by Mafler
and Skipper at Sea.
XIII. Rules in Lavu in the charging
him for reparation of damage , In-
fant Mafler of a Ship fueable ia
the Admiraltyy for vuafiing or
fpoiling Goods.
XIV. Of the Poiver and Authority
that the Mafler hath in difpofing
Hypothecating or Pledging the Ship,
Furniture and Lading.
XV. Where Mafier s are difabled,
though in neceffjty, to hnpavjn the
VeffeL
XVI. Where they may difpofe of Vef
fel and Lading, and ivhere not,
X V I L What Veffeh and Mariners the
Mafier mufi have for importing in
or exporting out of His Majefiy^s
Plantations in Afia, Africa, and
America.
XVIII. What Ships may go from
Port to Port in England.
X.IX. Ships not to import the Goods
of any Country, but of that from
vohence they are brought.
XX. What time the Mafier fh all he
coining up after arrived at Gravef-
end, or at any other Port vjithin
the Realmy in order to his dif
charge.
XXI. Of going from Port to Port
voithin the Realm hovj provided.
XXII. Of Goods prohibited to he
i?nported from the Netherlands or
Germany in any Ships twhatfQ-
ever.
4 a
5. 4
230
S©atterj{ of @l)tp!J. Bookii.
In Chancery.
L /\ Mafter of a Ship is more than one, who, for his
ji\^ knowledge in Navigation^ fidelity and difcretion
hath the Government of the Ship committed to his care
Lig. i.deEx' and management •, and by the Common Law, (by which
frcii. Aa, Properties are to be guided,) he hath no Property either
general or fpecial, by the conftituting of him a Mafter;
Boh. Rep.foL yet the Law looks upon him as an Officer, who muft
' ^ ' i^r^I render and give an account for the whole^charge, when
Tnan^ «. ^^^^ committed to his care and cuftody ; and upon failure
to render fatisfadion : And therefore if misfortunes hap.
pen, if they be either through negligence, wilfulnefs,
or ignorance of himfelf or his Mariners, he muft be re-
fponfible.
A Mailer of a Ship, fo appointed by B. Owner, treats
with the Plaintiff to take the Ship to Freight for 80 Tuns
to fail from London to Falmouth,- 2cc\^ fo from thence to
Barcelona, without altering the Voyage •, and there to un-
lade at a certain Rate fer Tun. And to perform this the
Mafter obliges the Ship and what was therein, valued at
300 /. and accordingly a Charter-party was made and
iealcd between the Mafter and the Merchant j but the
Owners of the Ship were no Parties thereunto. The
Mafter deviates and commits Barretry, and the Merchant,
in effed:, lofes his Voyage and Goods, for the Merchan-
dize, being Fifh, came not till Lent was paft, and were
rotten. The Merchant's Fa6lor thereupon fueth the Ma-
fter in the Court of Admiralty at Barcelona, and upon
an Appeal to a higher Court in ^ain, hath Sentence
againft the Mailer and the Ship ; which coming to his
Hands (t'/2;. the Merchant's Hands) the Owner brings an
Adlion of Trover for the Ship ; the Mafter fues in Chan-
cery to ftop this Suit, and another Suit brought for the
Owner for Freight, claiming dedudlions out of both, for
his Damages fuftained by the Mafter, for the breach of
the Articles by the Mafter, for if the Owner gives Au-
thority to the Mafter to contrad he fhall bear the lofs,
f^ut in Cafe of Bottomry after a Voyage begun the Mafter
cannot oblige the Owner beyond the Value of the Ship:
But this Cafe is on Contract.
Lord-Chancellor. The Charter-Party values the Ship
at a certain rate, and you fliall not oblige the Owners far-
^ ■ ^ ther,
29.
Chap. II. ^attm ot ^UP^^ " 231
ther, and that only with relation to the Freight, not to
the value of the Ship ; the Mafter is liable to the Devia-
tion and Barretry, but not the Owners ; elfe Mafters
ihould be Owners of all mens Ships and Eflate, Micb^
Car. 2.
But where the Mafler of the Ship took Beef, Sails, 2r^r«. 643,
tff. on Credit, and failed, the Owners were obliged to
pay ; and not allowed to defend themfelves by infifting
H that the Mafter was liable only, and that they had given
him Money to pay the Plaintiff. He is but their Ser- '
vant, and where he buys, they are liable, and continue
fo if he has not paid the Creditor, though they gave him
Money for that Purpofe.
II. If the fault be committed in any Port, Haven,
River, or Creek, or any other place which is infra Corpus
Cmilatus, the Common Law fhall have] Jurifdidion to
anfwer the party damnified, and not the Admiralty \ but vide 5. Co.
if the fame be committed /z^p^r altum mare^ the Admiralty io7.7i/». 8qi,
fhall have Jurifdi6lion of the fame ; yet if it be on a 9»^*
place where there is divifum imperium^ then according
to the Flux or Reflux the Admiralty may challenge -,
the other of Common Right belonging to the Common
Law.
The Common Law is the over-ruling Jurifdidlion In L. Raymond
this Realm •, and they are to intitle themfelves well who ^7^-
would draw a thing out of it.
And therefore fo foon as Merchandizes and other Com-
modities are put aboard the Ship, whether fhe be riding
in Port, Haven, or any other part of the Seas, he that
is Exercitor Navis is chargeable therewith , and if the fame
be there loft or purloined, or fuftain any damage, hurt
or lofs, whether in the Haven or Port before, or upon the F. N^uf. caup.
Seas after flie is in her Voyage, whether it be by Mariners A^- ^^g- »•
or by any other through their permifTion, he that is Ex- ^^'^'^>h^>7\
ercitor Navis muft anfwer the damage, for that the very
lading of the Goods aboard the Ship, does fubjed: the
Mafler to anfwer the fame : And with this agrees the ju, j ^
Csmmon Law, where it was adjudged. That Goods being ^^^,^^'2^^^
fent aboard a Ship, and the Mafter having figned his Bills i hn, 190}
of Lading for the fame, the Goods were ftowed, and in 23?;
the night divers Perfons, under the pretence that they ^ ^^^* ^^^'
yere Prefs-m.afters, entered the Ship and robbed her of \^^^ 'jj^*,
P 4 "" thofe ?35.!
232 fliPatterS of ^i^ipS. Book II.
thofe Goods -, the Merchant brought an Adlion at the
Common Law againft the Mafter ; and the Queftion was,
Whether he fhould anfwer for the fame ; For it was.ai-
ledgcd on his part, That there was no default or negli-
gence in him, for he had a fufficient guard, the Gocxls
were all lock'd up under Hatches, the Thieves came as
PrcfS'Mqfte7's^ and by force robb*d the Ship ; and that
f The which the fame was vis major f, and that he could not have
the Civil Law prevented the fame. And laftly, That though he was
times allow- c^l^^d Mafter or Exercitor Navis^ yet he had no fhare ia
the Ship, and v/as but in the Nature of a Servant, ading
for a Salary. But notwithftanding it was adjudged for
* Rey. 105.^ the Plaintiff, for at his peril he muft fee that all things
^'^}n l^^^ be forth-coming that are delivered to him, let what acci-
40^84/^. ^^"^ foever happen -, (the ad of God, or an Enemy,
Mo. 876. perils and dangers of the Seas only excepted) but for Fire,
Hoh. 17, 18. Thieves and the like, he muft anfwer, and is in the ca-
Poph.i-jS, ^ of a * Common Carrier; and that though here-
Cro^Jac.1^2. ceives a Salary, yet he is a known and publick Officer,
189,330,331. and one that the Law looks upon to anfwer, and the
Sa/k. 388. Plaintiff" hath his Eledion to charge either Mafter or
1 Si^. 3 . Owners, or both at his pleafure, but can have but one
Debet Exerci- s^tisfadion.
iQr omnmm
nautarum fud-
rum (I've liheri Jintjive fer^vi^ faBiun prajiare^ nee immerilo faSlum eorum ptyejlaty cum
ipfe eos fuo periculo adhibuerit : Sed non alias prerjlat quamji in ipfa nave damnum datum
(ity caterum fi extra navirriy licet anautis, ?ion prajlabit, Naut. Caup. Stabilit. Leg.},
Sea, 7. debet Exercitor,
.iu i
Eod. Leg. de- If a Mafter fhall receive Goods at the Wharf or X^,
hst Exercitor. or fhall fend his Boat for the fame, and they happen to
be loft, he ftiall likewife anfwer both by the Marine Law
and the Common Law,
Mayor £5? Com, de London againft Hunt,
Error of a Judgment in B. R. in Affumpfit brought by
the Mayor and Commonalty againft Hunt^ where they de-
clared of a Cuftom, That they and their Predeceffors, Ma-
jors, i^c. had of every Mafter of a Ship 8 s, per Tun for
every Tun of Cheefe brought from any place in England
to the Port of London^ ab oriente de London-Bridge^ in the
pame of Weighage \ and that the Pefendant being M^-
U AP. II. fl^afietiS of ^Uv^. 233
ler of a Ship, had brought to the Port of London fo ma-
t,' 'funs, which at that rate came to fo much, which he
Hath not paid ; upon non AJJumpfit, Verdid and Judg-
f ment for the Plaintiff. Upon which Hunt the Defendant,
• 'ouf^ht a Writ of Error, and two Errors were afligned.
«i I. That the Adlion did not lie againft the Mailer, but
' that the Duty was due from the Merchants, Ow-ners of
y the Goods •, but the Judgment was affirmed, for that the
lifter is intruded with the Goods, and hathaRecom-
5! pence from the Merchants for bringing the Goods, and is
i refponfible for them, and therefore fhall be charged for
'i the Duty *, and it would be infinite to fearch for the Ow-
^ nersof the feveral Goods, which are all in the Cuftody of
\ the Mafter who brought them into Port, and therefore he
i( ihall be charged. 3. Levinz '^y.
I III. If Goods be laden aboard, and after an Embargo Digeji. lih, 9.
orReftraint from the Prince or State comes forth, and ''^-2.1^^.61.
then he breaks Ground, or endeavours to fail away, if any
ji damage accrues, he muft be refponfible for the fame. The
reafon is, becaufe his Freight is due and muft be paid ;
nay, although the very Goods be feized as lona contra-
kudos.
A Ship was hired to J. S, in England to freight at zVem, 242:
3 /. 10 s. per Tun to Bourdeaux ; then an Embargo is
laid •, (he afterwards proceeds to Bourdeaux ; the Mafter,
not difcovering his firft Agreement, agrees with the Cor-
refpondents there of J. S. to allow him 6 /. 10 .f. per
Tun ; upon this laft Agreement he recovered at Law 5
and Equity would not relieve ; becaufe the Performance
of the firft Agreement was hindered by the Embargo.
|| IV. He muft not fail in tempeftuous Weather, ncr put
forth to Sea without having firft confulted with his Com-
pany* ; nor muft he ftay in Port or Harbour without juft * Leg. Oleron,
caufe when a fair wind invites his departure. 7«^^- 2*
V. He muft not over-charge or lade his Ship above
the Birth-mark, or take into his Ship any Perfon of an
obfcure and unknown Condition, without Letters of fafe -^'^^ iS/f. 6.
jVL Nor ought he to lade any of his Merchant's Goods Leg. Rhod. ^
aboard any of the King's Enemies Ships (admitting his Leg, quum
own Veffel leaky or difabledj without Letters of fafe ^^^7""' ^* '^^
Co(^du6t i otherwife the fame may be made Prize, and stat^'±H°'^L
he 20. * ° *
234 W^^tt& Of %i^ipg. Book If.
he mufl: anfwer the Damage that follows the Az.
tion.
Siat, 15H.6. Nor fliall he come or fneak into the Creeks or other
(^. S. places, when laden homewards, but into the King's great
Ports, (unlefs he be driven in by Tempeft) for otherwife
he forfeits to the King all the Merchandize, and therefore
muft anfwer.
I EL e. II. §. VII. Nor ought he to ihip any Merchandizes, but only
^' ^ at the Puhlick Ports and Keys.
]^ii.\, 14! tl^ "^"^ "^^ ^^^^ ^"y prohibited or unlawful Goods,
19J?/. cap.'^, whereby the whole Cargo may be in danger of Confifca.
i,2F.^M5. tion, or atleaft fubjed to feizure or furreption.
jjac.cap.z^. He may not fet fail without able and fufficient Mari-
12^ ar.z.cap. ^^^^ ^^^^ ^^^ quality and number.
By ^ G. 2. ch, 20. Matters of VefTels outward-bound
are not to receive on board their Gunpowder, either as
Merchandize or Ammunition (the King's Service ex-
cepted) before they be at, over-againft, or below Black-
Wall^ on forfeiture of 5 /. for every 50 Ih, Weight, i3c.
By the fame Ad the Mailers of Ships coming into the
Thames fhall land their Powder before their Arrival at
Blackwalls or within twenty-four Hours, if Weather
■ permit, after they come to anchor there, or at the Place
of unloading •, forfeiture as in foregoing Sedion.
Keeping Guns lliotted, firing a Gun above Bkckwd
before Sun-rifing or after Sun-fetting, are alfo prohibited
by the fame Ad, but under fmaller Penalties, viz,,A
Gun fhotted 5 J. a Gun fired 10 s. melting Pitch there
on board is liable to a Penalty of 5 /.
Search may be made by an Elder-Brother of Tmity-
Houfe^ impov/ered under the Corporation Seal ; and notper-
mittinghim to make due fearch is liable to a Penalty of 5/.
VIII. He may not ufe any unlawful Colours, Enfigns,
9 Proclama- Pendants, Jacks or Flags *, whereby his Ship or Lading
^ion Sept. 25. may incur a Seizure, or the Cargo receive any detriment
■f'fCar.2. or damage.
fropttrf"" He mufl not fuffer the Lading to be ftoln or Imbezzled ;
Leg. Rhod. if the fame be, he mufl be refponfible, unlefs it be where
D. Leg. in fin. there is vis major ; as if he be affaulted at Sea either by
Is' Leg. ft ^en- Enemies, Ships of Reprize, or Pirates, there, if no Fault or
W S'zT negligence was in him, but that he performed the part
^^e.Naui of an honeft, faithful, and valiant man, he fball be ex-
Caup. culecl
N
j Chap. H- fl^aSetSE Of ®l)tp^* 235
I cufed. Yet it hath been adjudged. That if a Merchantman 1 ^^«. 190,
I ijes in a Port or Haven, and a Pirate, Sea- Rover, or other ?,38.
I xhicves enter her and over-power her Men, and then rob i^Mo7.%1^^'
her, yet the Mafter muft be refponfible •, but if an Enemy zLevinz. 69.
enter and commit the depredation, there the Mafter is ex-
cofed. 2 Keble S66, 3 Kek 72, 112, 132, 135.
IX. He muft not carry any counterfeit Cocquets or i^R.z.eap.g:
other fid:itious and colourable Ship-Papers to involve the {^S- ]'^°^-^
Goods of the Innocent with the JNocent. cufand.
Nor muft he refufe the payment of the juft and ordinary Secmd.fin.Leg,
Duties and Port-charges, Cuftoms and Imports, to the ultadLeg.quum
hazard of any part of his Lading ; yet if he offers that P^P^^^^^^- ^*
which IS juft and pertams to pay, then he is exculed. i oieron.
X. He muft not fet fail with infufficient Rigging or 24. Per Leg,
Tackle, or with other or fewer Cables than is ufual and quant.de pub.
requifite, refped being had to the burden of the Veflel :
And if any damage happens by the delivery of the Goods
into the Lighter, as that the Ropes break, and the like ;
there he muft anfwer •, but if the Lighter comes to the
Wharf or Key ; and then in taking up the Goods, the
Rope breaks, the Mafter is excufed, and the Wharfinger
is liable.
If fine Goods, or the like, are put into a clofe Lighter,
and to be conveyed from the Ship to the Key, it is ufual
there, that the Mafter fend a competent number of his
Mariners to look to the Merchandize, if then any of the
Goods are loft and imbezelled, the Mafter is refponfible*, * Pafek 26
and not the Wharfinger ; but if fuch Goods are to be Car. mVA at
fent aboard a Ship, there the Wharfinger, at his Peril, f^^f^^]'^'
muft take care the fame be prefer ved. * '*^* ^ ■'
XI. After his arrival at Port, he ought to fee that the
Ship be well moored and anchored ; and after reladed,
not to depart or fet fail till he hath been cleared ; for
if any damage happens by reafon of any fault or neg- i^EH^.cap.q.
ligence in him or his Mariners, whereby the Merchant 14 Car. z.
or the Lading receives any damage, he muft anfwer the c^p- »i-
lame.
XIL And as the Law afcribes thefe things and many
more to him as faults, when committed by him or his
Mariners in Ports, fo there are other things which the
Law looks upon to be as faults in him in his Voyage,
ivhen done : ^ '
As
236 ^a^m of ©l^tpjS* Book II.
pigefi. L lum A? if he deviates in his courfe without jufl: caufeV br
tn dehito F. de fle^j-g ^ dangerous and unufual way, when he may have a
more feciire pafTage -, though to avoid illegal impofitions,
he may fomewhat change his courfe ; nor may he fail by
places infefted with Pirates, Enemies, or other places no-
torioufly known to be unfafe ; nor engage his Veffel a'*'
JJb.i. Cod.de mong Rocks or remarkable Sands, being thereto not ne-
WW ''''' ceflitated by violence of Wind and Weather, or deluded
^-^^^-^ • by falfe Lights.
The Mafler Ihall not be anfwerable for the Contrads
of their Mariners ; but they may be detained for their
Crimes.
XIII. By the Marine Law, he that will charge a Ma-
iler with a Fault, as in relation to his Duty, muft not
think that a general charge is fufficient in Law, but he
ought to afTign and Ipecify the very fault wherewith he is
fo charged.
So he that will infer, that fuch or fuch a fad difafter
hath happened or been occafioned by reafon of fome fault
in the Mariners ; muft not only prove the fault itfelf, but
muft alfo prove that that fault did difpofe tofuchi'fel
event ; or that fuch a misfortune could not have happened
without fuch a fault precedent.
Jnfant Matter If an Infant being Mafter of a Ship, by Contract with
cfaShip, Ha- another, take upon him to bring certain Goods from 5/
^^^ h ^M^^ Chriftophers to England, and there to deliver them, but
rftlty. delivers them not according to agreement, but waftes
and confumes them, he may be fued in the Admiral Court,
^Itho' he be an Infant ; for this Suit is but in Nature of a
Detinue or a Trover and Converfion at the Common Law;
and a Prohibiton denied for that Caufe. Fumes againft
Smith. I Rolls Ahr. 530.
XIV. When Voyages are undertaken, the Mafter is
there placed in by the Owners, and they ought to make
f Recepltfal- good the Mafter's fad and deed ; f and therefore as the
'vum fore, u- whole care and charge of Ship and Goods are committed
%Zt!l7^ to the Mafter, it is the prudence of the Owners to be
TiZJi^nl"^^ careful who they will admit Commander of their Ship,
ftnt,anetftnon fince their ac^ions fubje6l them to anfwerthe damage, or
fvit ei ajfigna- whatever Other Ad he fhall do in reference to this Imploy;
Tpfo ^uodTZ ^"^ therefore he can freight out the Veffel, take in Goods
^^vimZAjrljint ^.nd PaflengerSj mend and furnifh the Ships and to that
effefti
i Chap. H. ^aftm Of ^i)ipg. 237
I ggfe^cj.^ if need be, in a ftrange Country he may borrow recept^ ^uiden^
% Money, with advice of his Mariners, u^n fome of the ^"^V^^r.T
i Tackle, or fell fome of the Merchandize. If part of the pdiam^u^ i„
i Goods fhall be fold in fuch neceflity, the higheft price that na^vim Ulat^
\\ the remainder are fold for, mufl be anfwered and paid xofi^^U ^ faa-
\ the Merchant -, after which the Merchant mufl: pay for ZZltZ-
\ the Freight of thofe Goods as well as for the remainder, y?^,.^ debet, Jed
Ijg. Oleron. i. But if the Ship in the Voyage happens to bf reaomm,
be caft away, then only fhall be tendered the price that ^- ^^^^^
the Goods were bought for. ^ ^^f\^ 7.i.
By the Common Law^ the Mailer of a Ship could not im- recepit^
pawn the Ship or Goods, for any Property either general
orfpecial was not in him, nor is fuch power given unto
him by the conftituting of him a Mafter.
Yet the Common Law hath held the Law of Oleron reafo- i-^g- Oleron,
jiable, That if a Ship be at Sea and takes leak, or other- ''V^'
wife want Victuals or other Neceffaries, whereby either lat ch 2\z. '
herfelf be in danger, or the Voyage may be defeated, that Noy. 95.
in Tuch cafe of neceflity the Mafter may impawn for mo- ^'>' 9'^*
neyor other things, to relieve fuch extremities, by imploy- ^^^' ^"^^'^•
ing the fame to that end ; and therefore he being the Per- ^^/^ ^^.pi.y,
fon trailed with the Ship and Voyage, may therefore rea-
fonably be thought to have that power given to him im- Lex Mercator
plieitly, rather than to fee the whole loft. 102, 122.
A Ship put into Bojlon in New-England^ and there the
Mailer took up NeceiTaries, and gave a Bill of Sale by
way of Hypothecation, and there being a Suit againft the SalL'^!;.pl.g.
Ship and Owners to compel Repayment, a Prohibition ^ Mod.ca.yg.
was prayed -, whereupon the Court held, that the Mafter
could not by his contradl make the Owners perfonally * ^^"^°^ '
liable to a Suit, and therefore granted a Prohibition as to ^
them, but refufed it as to the Ship ; for the Mafter can
have no credit but upon giving fecurity by Hypotheca-
tion : And that it was unreafonable for them to prevent
the Court of Admiralty's giving a Remedy, when they
could give none themfelves.
But a Mafter, for any debt of his own, cannot Impawn L- Raymsnd,
or Hypothecate the Ship, ^r. for the fame is no ways 9^4- ^- ^'
liable but in cafe of neceflity for the relief and compleat-
ing of the Voyage.
Nor can he fell or difpofe of the fame without an Au- Irfj^^Yk^/l^'
thority or Licence from the Owners 3 and when he does ^V.5 30.^-2.
Impawn
\
238 apaaet0 of ©l^tpgE. Book Ii)
Impawn or Hypothecate the Veflel. or Furniture, he ought
to have the corient and advice of his Mariners.
Peer Williams A Ship being repaired, i^c, m t\iQ names y isnotli-
367. fee L. able, but the Owners.
^^j«.Wi52, XV. And where the Ship is well engaged, fhe is for
ever obliged, and the Owners are concluded thereby till
Redemption.
But in regard Mafters might not be tempted to engage
the Owners, or infettcr them with fuch fort of obligati-
ons, but where there is very apparent caufe and neceflity
they feldom fuffer any to go Skipper or Mailer, but he
that hath a ihare or part in her -, fo that if Monies or
Provifions be taken up he muft bear his equal Ihare and
proportion with the reft.
Judgment, O- Nor Can the Mafter on every cafe of neceflity impawn
inon, cap, 22. the VefTel or Furniture ; for if fhe be Freighted, and ht^
and the Owners are to join in the laying in of the Provi-
fions for the Voyage, and perhaps he wants money, (a
great fign of neceflity) yet can he not impawn the Veflel or
Furniture, any other or further than for his own part or
Ihare in her, the which he may transfer and grant as a noan
may do an eighth or fifth part in Lands or Houfes : But
fuch obligation of the Veflfel muft be in Foreign parts, or
places where the calamity or neceflity is univerfal on the
Veflfel, that will oblige all the Owners.
L. ttaymand Where a Ship was hypothecated at Amfterdam^ the
577* S?^- Party was allowed to fue in the Admiralty here.
XVI. If the Veflfel happens af(:er wards to be wreck! or
caft away, and the Mariners by their great pains and care
recover fome of the ruins and lading, the Mafter in tha^
cafe may pledge the fame, the product of which he may
diftribute amongft hisdiftreflfed Mariners, in order to the
Judgment, O- carrying them home to their own Country : But if the
i^ron. cap. 3, jy[ariners no way contributed to the Salvage, then their
reward is funk and loft with the Veflfel. And if there be
any confiderable part of the Lading preferved, he ougbr
not to difmifs the Mariners, till advice from the Ladcrs
or Freighters s for other wife perchance he may be macb'
liable.
If Merchants freight a Veflfel at their own charges, and
fet her to Sea, and fhe happens afterwards to be Wea-
ther-bound, the Mafter may impawn either the Ship or
Lading
J Chap. II. ^&tim Of %^ipg. 239
k L^i^S ^^ ^'^^ pleafure, or at leaft fuch as he could cove- ^^i- Oleron.
'niently raife monies on, rather than fee the whole Voy- ^^^' ^^'
il age loft. And if he cannot pawn the Lading, he may
■fell the fame, that is, fo much as is neceffary 5 in all
ii which cafes his adl obliges.
However, Orders and Inftrudllons are as carefully to
be look'd upon and followed as the Magnet.
I XVII. He is not to import into, or export out of any The like pro-*
i the Englijh Plantations in Jfta^ Africa^ or America., but in ^.^^^°" °" ^^^
i hglijh or Irijh Veflels, or of the VelTels built and be- for Ss of'
J longing to that Country, Ifland, Plantation, or Territo- Mufco'vy, and
j ry ; the Mafter and 3 fourths of the Mariners to be En- of tiie Domi-
- ^/^, upon forfeiture of Ship and Goods; and if other- Ji!°"! ^"^
-wife, they are to be look'd upon as Prize, and may be ofThe°c^!zr-
i feiz*d by any of the King's Officers and Commanders, and So likewife of
I to be divided as Prizes, according to the Orders and Rules Currants be-
I of the Sea. ^ ^ S'LVtw-
All Goods of the Growth of his Majefty's Plantations ritorkror "'
are not to be imported into England., Ireland^ or Wales^ Dominions.
Ifland of Jerfey or Guernfey^ but in fuch Veflfels as truly ^^te^ In cafes
belong to Owners that are of England^ Ir eland ^ Wales ^ Jer- ^^ ^cknefs, ^
/(y, or Guernfey.^ and 3 fourths at leaft of the Mariners are ^y^ f^'iygs jj^^
to be Engli/h^ upon forfeiture of Ship and Goods. Claufe as to
.The Goods and Wares of thofe Plantations, and brought Mariners,
iii fuch manner as aforefaid, muft be brought from thofe
very Countries of their feveral produc^lions and growths,
or from the Ports where they are ufually fhipped out, on.
forfeiture of Ships and Goods.
XVIII. No Ship to go from Port to Port in England^, That is thofe
Ireland^ JVales^ Jerfey., or Guernfey^ or Berwick^ unlefs the jj^^^ ^° "°^
Owners are Denizens or Naturalized, and the Mafter and /J/a|, 7°;-^
3 fourths to be Englifh. Weljh.ox thofe
All Owners muft fwear that their Veftels or Ships are of Jerfey^ or
their own proper Ships and VefTels, and that no Foreigner ^^^^nf^*
hath any fhare or part in her, and muft enter the fame ; and
that (he was bought for a valuable confideration, Bonafide^
XIX. Nor to bring in any Goods from any place, but
what are of the growth of that very Country, or thofe
places which ufually are for the firft fhipping, on pain of
forfeiture of their VefTel and Furniture.
This doth not extend fo far, but that Mafters may take
m Goods in any part of the Levant or S freights^ although
they \
24^ iSPaffetjS of &i)ip?.
they are not of the very growth of the place, fo thatthev
be imported in Englijh Ships, 3 fourths Englijh Mariners*
12 Car, 2. So likewife thofe Ships that are for India in any of thofc
€ap. \ 8. 3gas to the Southward and Eaftward of the Cape of Good-
Hope, although the Ports are not the places of their very
growth.
Any People o^ England may Import (the Mailer and Ma-
riners 3 fourths EngUjIo) any Goods or Wares from ^ain^
Portugal^ Azores^ Madeira^ or Canary I Hands ; nay in Ships
that are not Englijh built. Bullion may be imported j fo
likewife in thofe that are taken by way of Prize, Bonajidi.
But Sugars, Tobacco, Cottons, Ginger, Indicoes, Fu-
flick, or any other dying Wood of the growth of his Ma-
jefly's Plantations, to be fiiipped, carried or conveyed
from any of the Englijh Plantations, are to be carried to
no place in the World, but are to come diredly for Englady
Ireland^ WaleSy or Berwick^ upon pain of forfeiture of Ship
and Goods ; and the Mafter is to give Bond with one Se-
curity in 1000/. if the Ship be under the burden of 100
Tuns, and 2000/. if above; that upon Lading he brings
his Shipdire6i:ly into England,, Ireland, Wales, or Berwick^
(the danger of the Seas excepted) fo likewife they are to
do the fame for the Ships that fhall go from the Plantati-
ons, to the Governor of fuch Plantation, upon forfeiturcof
the Ship and Goods.
By a late Ad (3 G. 2. c. 28 ) Rice is permitted tobc
Carried South of Cape Finijierre without firft coming to
Great-Britain.
12 Cor. 2. XX. When the Mafter fhall arrive at Grav'ejend, he Ihall
f. iS. not be above three days coming from thence to the placiof
difcharge ; nor is he to touch at any Key or Wharf till he
comes to Chejier^s Key, unlefs hindered by contrary Winds,
or draught of Water, or other juft impediment to be allow-
ed by the Officers : And likewife he or his Purfer are there
to make Oath of the Burden, Contents and Lading of his
Ship, and of the Marks, Number, Contents, and Qualitirt
of every parcel of Goods therein laden to the bed of ins
knowledge j alfo where and in what Port (he took in her
Lading, and what Country built, and how manned, who
was Mafter during the Voyage, and who the Owners •, and
in Out- Ports muft come up to the place of unlading, asrtflC
condition of the Port requires, and make Entries, onpj/fi
of 100/. Nor
Nor is fucli a Mailer to' lade aboard any Goods out-
wards to any place whatfoever, without entring the Ship
at the Cullom-Houfe, her Captain, Mailer, Burden,
Guns, Ammunition, ^nd to what place llie intends, and
before departure to bring in a Note under his hand of
every Merchant that fhall have laid aboard any Goods,
toc^ether with the marks and numbers of fuch Goods, and
befworn as to the fame, on pain of 100 /.
No Captain, Mailer, Purfer of any of His Majeily's
Ships of War fliall unlade any Goods before Entry made,
on pain of 100 /.
Note, There is a Liil" of all Foreign built Ships in the
Exchequer. No F'oreign Ship not built in any of His
Majeity's Dominions of J/m, Africa, or America after
OM. I. 1662. and exprefsly named in the Lift, fhall eri-
joythe Privileges of a Ship be) on ging to £??^to^ or Jr^-
knd, although owned and manned by Englijh, except only
fuch as are taken by way of reprize, and condemnation
made in the Admiralty as lawful Prize. None but Eng-
Ufh and Irijh Subjeds in the Plantations are to be account-
<W Ehgiifi.
''■ XXI. If the Mailer fhall have Freight from Port to Port
:within the Realm, he ought to have Warrant for the
'fame, on pain of forfeiture of the Goods *, and he is to
take forth a Cocquet, and become bound to go to fuch
'Port defigned for, and to return a Certificate from the
^ihief Officers of that Port where the fame is defigned for,
and difcharged within fix Months from the date of the
^'Cocquet.
XXII. But from the Netherlands, or Germany, there
■^tnay not be imported any fort of Wines (other than Rhe«
nifh) Spicery, Grocery, Tobacco, Pot-afhes, Pitch, Tar,
Salt, Rofin, Deal-boards, hard Timber, Oil, or Olives,
% ^ny manner of Ships whatfoever.
it might not feem impertinent, that this latter pare
which is abridged, in reference to matters publick, fhould
be inferted -, for that fometimes it may happen that an ho-
'ned and well meaning Mailer or Skipper might innocent-
ly involve and hazard the lofs of his Ship by committing
a6ls againfl Laws pofitive and prohibitory -, and though
Mailers and Mariners, tiua tales, be not fo exquifite as to
know all that does belong to their Duties, or at leafl that
0 ' which
24;
which the Law lays incumbent on their Shoulders ; yet
for that moft of them have fome fmall glimmerings of the
fame, fuch hints in matters publick as well as private
may not only be of fome advantage to them, but alfo to
Merchants, who always upon the Mifcarriages of the
Mafters, prove the greateft Sufferers ; the offenders, for
the moil part, proving not fufficiently folvent.
CHAP. III.
iSDf ^avintv&y tljctr federal i^ftim m
gimmunitiegf, anD of :i5srretri? committeii
fir t1^tm.
I. 7Z-^ fevBral Marine Oficers on
Ship-board J and their Charges and
Duties.
II. Of the Majler s ponjoer and au-
thority onjer them^ as in relation
to punijhing or otherivi/e^
III. fhe Duty that Mariners o-we
to each other y and they to the
Ship.
IV. ^heir attendance requijite ivhen
laden ; and if detriment, nvhere
to be refponfihle.
V. When Accidents befalthem^ivhsre
they ought to be look'd after, and
at <whofe cojis.
VI. The Mariners Oath ivhere re-
quijite to the difcharging of the
Majier.
VII. What Accidents do dejiroy, and
tvhat noty their Wages.
VIII. Where they may join all in a
Suit for the recovery of their Wa-
ges, and nxjhere not.
IX. Of their Wages njuhere liable to
anfaver damage.
X. Where they abfolutely lofe their
Wages.
XI. Of Money or Goods taken up by
a Mariner, 'where itfiall bt Mt,
and 'vohere a Dif count of his IVa-
XII. And of their becoming liciu tt
CorreSlion.
XIII. Barratry in the Mariners, tht
reafon ix)hy the Lanv imputu ofn-
ces in them to be anfv:end hj h
Majler.
XIV. In nvhat cafes the MaprpH
become liable for the Adim ^In:
Mariners. . ,
XV. Of Goods purloined hefireth
are brought on Ship-board^ mc.
the Majier is bound to anfnuer, ni
owhere not,
XVI. Of the Antiquity offmh &•
Jio?n.
XVII. Of Goods brought fccrin)
in on Ship- board, if purlointi,
ivhere the Majier is not mdt Hi-
hie.
XVIII. Of Caution or fore-nvarnim
ivhere the fame Jhall excuft m
Majier
XrX. Where the Majier Jbd »
liable, notwthjlanding fuch Co*'
tion*
I. THE
Chap. til. M ^av(mt0. 243
I. Tp H E peiTons ordinary for failing in Ships have di-
JL vers denon:iinations : The firfl, which is the Ma-
fter, known to us and by moil Nations both now and of
old, and efpecially by the Roman Lav/s, Ncivicularius or
Ma^ifter Navis ; in Engliflj rendered Maftcr % or Exer- Leg. i. ^
(iter Navis i in the Teulomck Skipper ; by the Grecians^ paffimadLegl
flavcrchus or Nauclerus ; by the Italians^ Patrono, But ^'^^^' ^ ^^^'
this is only to thofe VeiTels that are Ships of Burden and i^aut!^Caup.
of Carriage \ for to Ships of War the principal there is
commonly called Commander or Captain. The next, in
order of Office to the Mailer, is he who direds the Ship
in the Courfe of her Voyage, by the Fr^^r^ 'called Filote %
by the Englijh and Flemming^ Steerfman ; by the Romans, ;r
Quhernator 5 by the Italians^ Nochiero Pilotio and Navar-
cbus, as Gerettus writes. The third is efteemed the Ma-
iler's Mate or Companion, chiefly if the Mafter be
Steerfman himfelf ; of old by the G?'^dans and Romans
calkd Proreia 'y his charse is to command all before the ^^/- ^^g'^on-
Maft. ° _ >'•
His Succeflbr in order is the Carpenter or Shipwright,
by thofe two Nations of old, called Naupegus by the lat-
ter ; by the firft Calapbafes. From the Loins of one of
that Rank fprang that great Emperor Michael^ firnamed
Calaphates^ who denied not to own the quality of his Fa- The Father
ther among his Regal Titles. The very Name of Gala- ^^•J'^fgYt
/to the Venetian and Italian dill ufe to this Day. natius Folate-
The next who fucceeds in order, is he who bears the ranus ob-
Charge of the Ship's Boat, by the Italians called B^achie- ^^^^^^^ Hb.z^.
nV i by the Grecians and Romans, GaraMta^ from Cara-
hs, which denotes the Boat of a Ship.
The fixth in order, efpecially in Ships of Burden, is
the Clerk or Purfer^ by the Italians called Scrivano : whofe
Duty is > the regiftring and keeping the Accounts of all
received in or delivered out of the Ship ; for all other
poods that are not by bitn entred or taken into Charge^
if they happen to be caft over- board in a Storm, or are
ftoln or imbezzled, the Mafter anfwers them not, there
Wng no Obligation on hina by Law for the fame s his lUConfokto
% is to unlade by Day, not Night. ^''^'- '4^'^'''
J i^ o 2. cap. ii»
,-. 0^2 ^ Th0
244 ^t Spanner?!* Book ii;
The feventh a moft ncceflary Officer as long as there '
are aboard Bellies, Iharp Stomachs and Provifion, called
the Cook.
The eighth is the Ship's Boy, who keeps her continu-
ally in Harbours, called of old by the Gr^ecians^ Nauphi-
lakes ; by the Italians ^ Giiardino : Thefe Perfons are di-
ftindl in Offices and Names, and are likewife diftinguifh-
ed in their Hires and Wages •, the reft of the Crew ^re
under the common Name of Mariners, by the Romans
Budceus ad Called Naiit^e ; but the TarpoUians^ or thofe Youths or
Leg. I . Naut. Boys that are Apprentices, obliged to the moft fervile
Caup. tot. Duties in the Ship, were of old called Mefonaiita.
By Stat. 1. Ann. ch. 6. Two Juftices of Peace, or the
J, Church- Wardens, i^c. with Confent of fuch Juftices,
may bind out any Boy of ten Years of Age, who is or his
Parents are chargeable to the Parifh, or who begs for
Alms, to be Apprentice to the Sea-Service to any Sub-
jed, Mafter of a Ship, belonging to any Port in Englandj
IVales^ or Berwick. See the At\. how the Indenture is to
be made, and for feveral other Particulars. The Church-
Wardens are to pay 50 s. to buy neceflary Clothing and
Bedding : Such Apprentice is not to be impreffed, or
permitted to inlift himfelf in the King's Service till eigh-
teen Years of Age. But Note, that by Stat. 4. and 5.
jinn. ch. 19. Se^. 16. Mafters are not obliged to take
fuch Apprentices under the Age of fifteen Years ; nor,
unlefs they be healthy and ftrong of Body. The Admi-
ralty is to grant Protedions for Apprentices 'fo bound,
till eighteen Years of Age, without Fee. They may be
affigned, with the Afient of two Juftices -, and then alfo
to have Protedlions.
II. The Mafter hath the fupreme Rule on Ihip- board,
and by that Means his Power and Authority is by Law
much countenanced, efpecially in the keeping his Crew
in Peace fo long as they eat his Bread ; and if a Mariner
fhall happen to be bruifedor hurt in doing his Duty and
* Per Leg. Service, the Mafter * is to take Care that he be carefully
OIeron,cap.6. ]ook'd after, in order to the procuring his Recovery;
PerLeg.de and if it be occafioned by the Mifcarriage of another on
]''^'^''q%^ Ship-board, he may refund the Damage out of his, ^a-
Calp!" ^^^' S^^> ^^^ ^^^^ remembring who gave the firft AlTauk.
If
:hap. hi. M W^vinm. 245
If it happens that the Mafter commands his Boat to
3C manned out, and it fo happens that the fame is out
dF order, or unfit to take the Sea, the Tews, or other
Accoutrements being impotent, if the Mariners happen
robe drowned, the Mailer is to repay by theLawiVf(^n;^^
jie whole Year's Hire to the Heirs of the drowned :
Therefore Mailers ought carefully to view and fee that
^ the Boat be fit for Men to trufl their Lives in, upon his
, Command.
If a Mariner fhall commit a Fault, and the Mailer fhall
' lift up the Towel three tim.es before any Mariner^ and he
^ (hall not fubmit, the Mailer at the next Place of Land
, may difcharge him ; and if he refufeth to go afhore, he
i ihali lofe half his Wages, and all his Goods within the
\ Sfrip. Vi the Mariner fhall fubmit, and the Mailer will Per Leg. Ok-
\ not receive the fame, he fhall have his whole Wages ; or ron^ cap. 14.
i^'^t Mariner fhall depart the Ship on the Mailer's Com-
mitrd, and the Mafler happens not to take another, if
any Damage happens to Ship or Goods, the Mailer mull
arifWer.
III. Mariners mufl help one another at the Sea and in p^^ i^g^ qu^
Port ; if any refufe, upon the Oaths of his Fellows, he ran, cap. 13,
lofeth his Wages. None of the Crew mull or ought to ^ P^^ ^^i-
leave the Ship, without Leave of the Mailer, when Ihe ^^«^'^'"^*
comes to a Port, or rides at Anchor, but always con- '
ftandy to wait upon her till they are difcharged, or have
leave, at leafl; half to be left on Ship-board.
''k' Mariner may not carry out of the Ship above one i^g, nemo de
Meal's Meat, but Drink not a drop *, and when on Ship- Reg.jur. &
board, ouglit not to be there arrefled for Debt, but on- L^g- plerumq^
ly fo much of his Wages in the Hands of the Mailer at- '^''"^''' '^''^
tached : Yet this is doubted, if it be not on a fworn
Debt, that is, a Judgment or Sentence, or a Penalty to
the King.
They ought not to depart from on Ship-board when
once admitted into their full Pay (vv'hich is always when
they break Ground) without Licence of the Mailer ; and
before they may fo do, they are to leave a fufHcient
number to guard the Ship and Decks.
See the feveral Ads of the jt\\ and 8th William IIL
Cap, 21, Intituled an A61 for the Increafe and Encou-
ragement of Seamen J and of the 8th and 9th of the fame
0.3 King^
246 ©f ^mWU^. Book II.
King, Cap. 23. Intituled an A(5l for the further Increafe
and Encouragement of Seamen, for regiftring of Sea-
men, and providing for their Widows and Children in I
fuch manner as therein is mentioned, too large to be
recited here.
By Stat. 9. Jm. ch. 21. the Regiftring of Seamen is
repealed.
IV. If the Ship breaks Ground, and is fet fail, if after
fhe arrives at her defired Port, their full Pay continues
till fhe returns -, nor may they in any wife depart from
on Ship-board without Leave or Licence of the Mafter;
if they do, and any Difafter happens, they muftanfwer:
leg, Olenn, Yet at fuch Port if the Veffel be well moored and an-
f^/- S- chored with two Cables, they may go v/ithout leave,
yet fo as they leave a fufficient number behind to guard
the Decks : But then their return mufb be in due
Seafon ; for if they make longer flay, they mud make
Satisfaction.
V. If Mariners get drunk and wound one another, they
are not to be cured at the Charge of the Mafter or Ship •,
for fuch Accidents are not done in the Service of the
Ship : But if any of the Mariners be any ways wounded,
or do becom.e ill in the Service of the Ship, he is to be
provided for at the Charges of the Ship ; and if he be
leg. Oliran,] fo iH as not fit to travel, he is to be left afhore, and
^^P' *• Care to be taken that he hath all Accommodations of Hu-
manity adminiftred to him : And if the Ship is ready for
a Departure, fhe is not to ftay for him •, if he recover,
he is to have his full Wages, deducing the Mailer's
Charges which he laid out for him.
Leg. Okrouy VI. In Cafe of Storm, if Goods are caft over-board for
f^'f ^*' lightning the Ship, the Oaths of the M/^m^rJ, fwearing
that it was done for the Prefervation of the VefTel and
the reft of the Lading, fliall difcharge the Mafter.
So Goods damnified ^at Sea, are cleared by the Oath
of the Mafter and Mariners^ by the Laws oWleron.
leg. Olerott. To aflault the Mafter on Ship-board, is a Crime that
^^P' 13- ,fubje6ls the Mariner's Hand to be cut off, unlefs he re-
deems it at 5 Solz,
VII. If a Ship happens to be feized on for Debt, or
otherwife to become forfeited, the Mariners muft receive
, Confoiat, dd. their Wages, unlefs in fome Cafes where their Wages are
mtrs. forfeited
ighap. III. ^i ^atitxm. , 247
: f^jrfeited as well as the Ship ; or if they have Letters of
Jerque, and inltead of that they commit Piracy, by rea-
fon of which there becomes a forfeiture of all : but Lading Rolls' s A-
of prohibited Goods aboard a Ship, as Wool, and the bridg. /a/,
like, though it fubjecls the Veflel to a Forfeiture, yet it 530'
difahlcs not the Mariner of his Wages ; for the Mariners
having honeilly perform'd their Parts, the Ship is tacitly
blitzed for their Wages : But if the Ship periflies at Sea,
0
they lofe their Wages, and the Owners their Freight.
And this being the Marine Cuftom, is allowed by the
Common Law as well as the Civil Law.
If ihe comes to her firil delivering Port they have
Wages till then : If loft afterwards, they only lofe thofe
fubfequent Wages. L, Raym. 639. ^ this, and fee
h^Rapn. 739. where they loft part of their firft Wages.
VIII. The Courts ^tlVeftmivfter have been very favour-
able to Mariners in order to the fuing for Wages, for at
the Common Law they cannot join, but muft fue all di-
ftinft and apart for their Wages.
Yet in the Admiralty they may all join, and the Courts i ^ent. 146.
ztWeftminfier will not grant a Prohibition: And fo it 343- 2 ^^-?«^.
was ruPd where one Jones f a Matter of a Ship was fen- ^ ^^^^/^ „
tenced in the Admiralty for Wages at the Suit of poor -j^ m^uh.
Mariners, a Prohibition being prayed upon a Suggeftion Rep. 8.
ihat the Contra6l was made at Land, and not fuper ahum
mm\ the Court denied it, for that he came too late.
Sentence being given below againft him : Yet if the
Mariners had only libelled, and there had been no Sen-
tence, and the Defendant had prayed a Prohibition, as
above, the Court would have denied it. This hath
been, and is ufually done.
It was by meer Indulgence that Mariners were per-
mitted to fue in the Admiralty for their Wages : And Saik/ii. ^It,
this Indulgence was, becaufe the Remedy in the Ad mi- 4-
ralty was the eafier and better •, eafier, becaufe they
muft fever here, whereas they may join there *, and
better, becaufe the Ship itfelf is anfwerable : but it is '
exprefsly againft the Statute, tho' now Communis Error
facit Jus. The firft inftance of it is in Winch, 8. Yet it
was never allowed the Mafter iliould fue there •, nor is
itreafonable where he commenceth the Voyage as Ma^
fcr ; for tho' the Mariners contrad upon the Credit of.
A
the Ship, the Mafter doth contradl on the Credit of die
Owners. L. Raym. 397, ad idem.
Sdik.^l.pl^, But yet the Mate may fue in the Admiralty for his
Wages, becaufe he Contradls with the Mafter, as the reft
of the Mariners do. L, Raym. 632, ad idem.
Bat the Court will be very well informed, that the Libel
is for Mariners Wages ; for fon;e who work Carpenters
Sit^dl^ al, work, and fuch like Labour, aboard a Ship in a Havenlor
Owners of a ^Q^t within tlie Realm, which is infra Corpus Comitatusy
love^al (notwithftanding thofe great and ingenious Objedions
Mich, z-j Car. againft it) and muft be tried by the Common Lazv, and
in B. R. pot elfewhere, will libel under that Cloak for Marintrs
Wages. But the Court in that cafe will grant a Prohi*
bition. And fo it was done in the like Cafes.
But if a Ship rides at Anchor in the Sea, and the Mafter
fends his Boat afhore for Viduals or other Provifions'for
the Ship, and accordingly the Prcvidore or Slop-felkr .
Latch, fol II. does bring Viduals and Frovifions aboard •, in that Cafe
if the Con trad be made there, it muft be fued for, in
the Admiralty : But if the Goods are by the Purfer or
Mariner s Q.QiXi\.xz.6itdi for at Land, they muft fue at Comnitrr,
La%v.
But a Suit in the Admiralty for Seamens Wages grown
due in the River, though no Voyage made, was not pro-
hibited. L. Raym. 1044^^
Nor tho' made by Writing at Land •, or even by
Deed. (^ of this laft Point.) L,. Raym. 1206. ...
The Mafter cannot fue in the Admiralty forbiis
Wages. L. Raym. 576. t.t/
ThisDoflrlne IX. If Goods are fo imbezzled, or fo damnified that the
cited. L. Ship's Crew muft anfwer, the Owners and Mafter muft
Rajm.6^0. dedu6t the fame out of their Freight to the Merchants,
and the Mafter out of the Wages of the Mariners -, for
though Freight is the Mother of Wages, fo is it the very
Father of Damage •, For before the Mariner can claim his
Wages out of what the Ship hath earn'd, the Ship muft
be acquitted from the Damage that the Merchant bath
fuftained by the Negligence or Fault of the Mariners .vAnd
the reafon is, for that as the Goods are obliged to anfwer
the Freight, fo the Freight and Ship is tacitly obliged to
leg. oieyon. clear the Damage •, which being done, the Mariners are
th^n \tt in to their Wages.
"^ x.if
^iAP. IH- ®f ^avimm 249
X. If a Mariner be hired, and he deferts the Service
fore the Voyage ended, by the Lazv Marine he lofes
his Wages: And the fame Cuftom at Common Law plead-
'• it hath been conceived will bar him.
\{z. Mariner fliall commit any wilful or negligent Fault,
byreafon of which the Mafter, Owners, or the Ship anfwers
D.^mage to the Merchant, an Action lies well againft him.
In a Suit for Mariners Wages 'twas agreed. That if i Sid. 236.
the Ship do not return, but periflies by Temped, Ene-
my, Fire, &c. the Mariners fhall lofe their Wages •, for
if; the Mariners fhall have their Wages in thefe Cafes,
they will not ufe their bcfl Endeavours, nor hazard their
Lives to preferve the Ship, i Sid, 179. But if the Ship
unlade, they fhall have their Wages ; in the Cafe of Culkn
ind Mico, i Keehle 831.
If a Seaman be prefTed, he Ihall have his Wages pro
rata. L. Raym. 12 11.
XL If a Mariner takes up Monies or Cloaths, and the
fame is entered in the Purfer's Book, by the Cuftom Ma- *
rine it is a Difcount or a Receipt of fo much of their
Wages as the fame amounts to ; and in an A6lion
brought by therq for their Wages, the fame fliall be
allowed, and is not accounted mutual, the one to bring
his Adipnfor the Cloaths, and the other for his Wages.
XII. A Mader of a Ship may give moderate and due Pafch. lyCar,
Correction to his Mariners^ and if they bring an A<n:ion inB.R.Pidge-
againft him, he may juftify the fame at the Common Law ; °^ adfea.Ar.
and by the Law of Oleron^ if a Mariner fhall affault the ^^^all. Leg
Mafter, he is to pay 5 Solz, or lofe his Hand. 0/eron. c, 13,
^rf] Mariners after they have unladen the Ship, if they de-
Amand their Wages, and there be any Intention of their
.Departure, the Mafler may detain a reafonable Propor- Per Leg. O/r-
'iiion of the fame till they bring back the Ship, or give ^^^' ^^P- ^^•
Caution to ferve out the whole Voyage.
XIII. Barretry of the Mariners is a Difeafe fo Epide-
mical on Ship-board, that it is very rare for a Mafler be
his Induftry never fo great, to prevent it ; a Span of Vil-
lany on Ship-board foon fpreads out to a Cloud, for no
other Caufe but of that circular Encouragement that one
''feavifti Mariner gives another.
However the Law does in fuch Cafes impute Offences 7"-^- ^^.f^'
and jp(.7«//j committed by them to be Negligences in thc-^^^f^^^
Mafler •, ' *
250 SDt ^avimm ' Booki.
Mader ; and were it otherwife, the Merchant would b*
in a very dangerous Condition.
Tafch.w .Jac, The Reafons why they ought to be Refponfible, are, for
in B. R.Herti j-^at the Mariners are of his own chufjng, and under his
Rolfs'ASg. Correcflion and Government, and know no other Supe^
^23. " riour on Ship-board but himfelf ; and if they are Fault^j
he may correct and punifh them, and juftify the fameJ
by Law: And likewife if the Fa6t is apparently prov-
ed againfl them, may reimburfe him^felf out of their
Wages.
Naut. Caup. XIV. And therefore in all Cafes, wherefoever the M<r-
f ""r e'^H ^^"^^"^ ^^^^^ aboard any Goods or Merchand'ize, if they be
\Ven. 190, ^^^y Imbezzled, or any other ways Damnified, heinuftbe
238. ' Refponfible for them ; for the very lading them aboard
Rajm. 220. makes them liable, and that as well by the Common Law z&
' ut'e'"' ^^^ ^"^^ Marine.
^Glc/rrupereod ^^^ ' ^^^^ "^ ^^ ^^'^ Mariners go with the Ship-Boat to the
vW. aTJ/^ ^^y ^^ Wharf to fetch Goods on Ship-board, if once they
fa.ium. have taken Charge of them, the Mailer becomes immedi-
ately Refponfible, if they Steal, Lofe, Damnify or Im-
bezzle them. '
XVI. The antienteft Record that is found extant,- "is^
that in Edvjard the Third's time, whei-e one brought an
Aclion of Trefpafs againft the Mafter for the Imbezle-
ment by his Mariners of twenty two Pieces of Gold, Bow,
Sheaf of Arrows, Sword, and other things-, and adjudg-
ed he Ihould anfwer. And for that the fame is or raayi
be of great Moment, accept of a Tranfcipt of the Re-
cord, as the fame was certified into Chancery^ in orde!
to have it fent into the King^s Bench, to enable the Plain-
tiff to bring an Aclion upon the fame judgment in anf
Place in- England^ where he could meet with the Dw^fcn*
danc.
Srsv:a Regis X J (Z\\ZtM\\ I'tt CfjJlCO ^3^1 ^01111110 3!- D^l ffW^
i. Turre Lon^ y j j^ ildlpsom' ^Cpifcopo Donuui mm ^^^
rjTnZ' GancellattD U\ zm locum tenenti fut fiuniiic^ ^ ^r-
IrifioL iotr, Eobmug (gpene, ^aiac (XiWz 15?iaoI, w^-
toacDug Qplanfeeit, gt SjoDannes tie €afi|e acre 'iJ^
iiDi iihcctatum eiufaem aiile, falutcm mm mx\i
re&ecentia $ \)mniz. £)e ttmit $ Recrsim' $ W:
cefiiiiS loquele que fuit cojam nouig iii Cuc'Dominj
Chap. HI. ®f ^S^VUXttS* 251
aefft0 ibium fine hmi inter ^zn. ipilfe $ SiutJa--
I numffleno?^ spagianim JBaWs feocat la aJracianc
i: Be TBapone in pi'ito tcanfgrefS' p?out per b?e&e ©a--
fe m(m WiW0 nobis Directum tutt Dobig inoe certifica=
y tiir, rub fifftlUg noftris l3ob!0 fi placet mittimtig in
ri 11(10 fcriptw* ^'0 placit' Tolls tent' ibioem aie S^ar--
» tijs^ vm' poilf eaum Epiphanis Doniini anno Eeo:*
^ ni EeffiS nunc ^4 fpen* f iffe qiter' opt' ft SerfujS
i jawanum caeno?e ^agiRram il2a5}i0 \50cat' la ©ra-
ciaite t)z Bapone ae prita tranfgrefs' per' pr $c. s:
I iiime quer'^ quoa fecunoum legem $ confuetuUinem
Be 0 L E R o N unufquifqi ® agiRer JOa^ig tenetur
refponUEre De qiiacunque tranfgrefg' per feriiteates
im in eaaem fact', $ Soljannes Be Eule $ ^arcolet
Be 15omt& feruienteg p^esicti SurBani a^agifirt iQa*
m pjeaicte Bie ^ercur* p?or' ante ifeOum onmtimi
©aiictojum anno Eegni p?eBictt Eegis cea. ^3, m
^ari furta iiBritan. in eaaem nasi Qe 3lo&anne ae
€mw\f ferDlenr preafct' ^^ Ubf in auro, arcug,
fagit', glaa. $ ar bona $ catalla aa salenc'* 4° u
ccpenint $ arpojtaserunt iniufte, $f* aa aampnum ^
mw |)em 6^*r $ fi preaicttis Juraanus fjcc aelit
mmzy p?eaict |)en* paratus efi aerificare, $c* ct
p?cnfrtus auraamis uenit ^ aicit quoa ler ae ojeron
talis tft quoa fi niiqua bona ?: catalla ^agtftro alt=
nijiiis J!2ai)f0 libcrata funt cuff oaiena', unae laem
fagifter p?o eifaem ^el p?o aiiqua alta re in eaaem
nail facta manucap', tllo moao ^agiffer Bms w
Mm refponaere ; non alio moao, $ fup' Ijoc petit
JttBiciam* €t p^eaict l)zn. aicit, quoa umsfquifquc
tagifter tmzmt refponaere ae quacunque tranfgref-
fione per ferDientes fuos in ii5ai3i fua facts $ petit Ju. ^
aicium fimiUter. €t fup' feoc p?eaict' partes Ijabent
Hiem Uc ate ^abbati p?or pod jf effum fci. iMmi
Kof futur' aa auaientf auaicium fuum, ?c* aa
quern Biem pjeBicte partes ienerunt $ petierunt Jxu
Biniim fuum, fc* €t recitat EecojBo $ p^oceffu
ppictis in plena Curia cojam t^aiore $ neraiiibis $
aiiis p?ob!S Ijominifaus ^iilt $ ^agiaris $ carina--
tils, Bifuni fait Curtee, quoa unufqutfq^ ^agiflfer
I5ai3is tenetur refponaere Be quacunque tranP
Bceiftone per feraientes fuos in Ba^i fua facta, jaea
contiaeratunj
25a SDf ^atittttS. Book II,
The ludg- caiiCDetattmi cff, quoti preuict' ©en, recuperet Janiu^
ment in this ^^ f(|g 40 1. jjetfusi preDtct' 3f«rlianiim per Cur. tntar
^'?;il?n" 9 nifttlDniiniis fDeni 3iu«iauuis tranrBreCione mwu
ought not to
have been a capiatur ; for it is not fuch a Trefpafs as the King is entitled to a Fine
Vide Cro. jf^c, 224. Beed/e *verfus Moris. Coki& Entries, /o/. 347.
XVIL The Mafter fubjed* to anfwer Damage, is to be
underftood in all fuch Cafes where the Lading was brought
aboard either by his Confent or his Purfer's ; for any 0-'
Leg I . zn/n. ther, or fuch a6 fhall be fecretly brought in, not being
Naut. Caup. entered in the Purfer's Book, or in the Bills of Lading,'
^defurt'iiy''' the Mafter is not obliged to fee forth-coming, unlefs'ic
be fuch Goods as the Parties bring into the Ship about
them, as Clothes, Money, and the like, as above,
thofe things being feldom entered, yet mod commonly
thofe that are vifible, the Mafter by Law is Refponfiblef
for.
Eod. Leg. in XVIII. So likewlfe if a Mafter forewarn a Paflenger to
Jin. Naut. keep his Goods, and that he will no weys take Care of
^''^ita^utde them, and if they be loft or purloyn'd by the Crew^^'He
eod. edia. will not be obliged to fee them forth-coming; the Mafter
Bart. ^Jafon is not there held Refponfible in Cafe of a Lofs^ efpecially
in kg. nonfo- jf x\[i^i^^ ^c any thing of Agreement thereunto.
^^^nortem de XIX. But if Goods ftiall be fent aboard a Ship, and
mn oper, the Mafter fliall appoint a Cabbin for the fame, and deliver
the Key to the Lader, and tell him he will not be Re-
fponfible if a Lofs happens ; yet if the Goods are flole,
he muft notwithftanding make Satisfa6tion : By the Com-
mon haw it Ihall bind an Inn-keeper. Mo. 78.
8 Coh ^^. a. But if the Inn-keeper defires his Gueft to put hisGoods
^"n^^o' in fuch a Chamber under Lock and Key, &c. and then
he will warrant, otherwife not, and the Gueft leaves them
in an outer Court, where they are ftole, (f^c, the Inn-
keeper ftiall not be charged.
Nofe^ That Goods once delivered to a Mafter, the
Cargo is not fubjed to be attached in his Hands, nor can
any Cuftom whatfoever fupport the fame; for they are
in Law as it were bailed to the Ship, until the Freight
Tpt U^r ^"^ ^^^ ^^^^^ Charges are paid : And very much doubted
Chief jullice whether an Attachment can be made in London of any
Hale. Goods
Goods at all lying on Ship-board in the River of "Thames,
(wbich, though the Port of London) notwithftanding
Freight and all other Charges are paid off.
Commiflioners of Bankrupt ifTued a Warrant to feize HiH. 8 Anna
Goods of the Bankrupt on board two Ships in Topjham Bay ^'« Chancery,
in Devon/hire ; the Goods were confign'd to Perfons in
Holland who had not paid the Bankrupt for them : The
Mafters refufed to deliver the Goods, notwiihftanding the
Warrant ; which occafioned the CommifTioners coming to
' demand theGoods, which ft ill were refufed.
Sir Peter King moved for an Order upon the Mafters
ft their Contempt.
The Court at firft greatly doubted whether they can
make an Order in Aid and Afllftance of the Warrant
of the CommifTioners of Bankrupt, the Statute having
veiled a large Power in them ; befides the Perfons to
whom the Goods are configned, would be indebted to
the Creditors of the Bankrupt, which Creditors may re-
cover by the Law of Holland,
Sir Peter King, We fliall rather lofe the Goods, than
follow them into Holland.
Lord Chancellor. Their refufing to deliver the Goods
upon the Warrant, is no Contempt to this Court, tho*
the CommifTioners a6l under a CommilTion under the
Broad Seal. I remember the Queen was applied to, to
lay an Embargo upon a Ship in the like Cafe, but de-
nyed; becaufe an Embargo would have affe6led other
Goods in the Ship : The Mafters in this prefent Cafe
have fome Colour to detain the Goods ; for upon a De-
hvery of them, they may be difappointed of Freight,
and the AfTignees of the Commifiion muft ftand in the
fame Place as the Bankrupt, and be fubjed to his Con-
trad.
But however, an Order was made upon the Mafters
to deliver the Goods upon payment of the Freight
Money, and the Mafters to be indemnified by the Cre-
ditors, againft a Bill of Lading, which v/as fent to the
Confignees.
CHAP.
254
£>f ^Xti0)t anD Ci^atttV-'pHttk^. Book II,
CHAP. IV.
3age.
or
tn
I. 7^^ <var:ous nvays that Ships may
be freighted at this Day.
II. The antient <vj ay of Freighting.
III. HoHJO the fame is go'vemed upon
the ^various Contra^Sy and of Ac-
cidents happening to Mafiers
Laders presenting the Voyage.
IV. Of Agreements parol and
Writing, honv conjirued by the
Common Lanv ; tuhat it is.
y. Of Ships laded and unladed he-
fore the Voyage begun j their he-
coming difabled, viz. perifh in the
Voyage before the fame is com-
pleated,
"VI. Of Ships departure confidered in
reference to Freight and Damage.
yn. Of Freight arifing on Trading
Voyages, and loji by contingent
Actions, confidered by the Common
La^Wy and the Laiv Marine.
y III. Of Freight becoming due upon
the ^various ivays of Contra^, or
general (where none ^was agreed
for.
IX. Of Faults arifing from the
Freighters ; and of the Deceafe of
the Ship in reference to Freight.
X. Faults of Mafiers arifing from
taking in Goods more than lotri
. contracted for ; and of being for.
ced into Ports in his Paffage,
XI. Paffengers dying, the Ship's Tuii
to their Goods and Concerns,
XII. The Ship in conJiruSiion ofLceo)
honvfar liable to Freight.
XIII . Ships taken and retaken in
War, ^whether the fame defirgji
the Contra^.
XIV. Goods become loji mthaut
Fault of the Ship, nvhethtr Freiibt
becomes due.
XV. Of Freight contraSledvjithTtr-
fons deficient.
XVI. Of Ships cont railed for bjtht
Month, to be paid at the Arrivtl
at a Port ; Ship is caft aivay, the
Goods fa<ved : Whether the Frd^f^t
ought to be paid.
XVII. Co'venant mutual in a Char-
ier-Party ^ fhall not bepleadiitk
one againfi the other. Plea that
anj'hvers to Part only is ill. Crvi-
nant therein byfe've7-al,yei bni^hl
againfi one only. Co'venant hjft'
'zjeral & que^ilibet eorum, nw^
he brought againfi one only*
1. T N the Freightng of Ships, refpedl is always had
X to the Ship itSlf, or elfe to a certain Part there-
of.
Again, the Merchants either Freight her by the Monih,
or the entire Voyage, or by the l^m \ for it is one thing
to Freight a Ship, and another thing to take certain 2l/»-
nage to Freight.
Sd
Soalfo it is one thing to be a Cape- Merchant, another
to be an under Freighter.
II. There was of old another way of Freighting, v/hich 21 ^. 5. Cou
jfizs when the Merchant agreed with the Mafler for a Sum '^'''^ Abridg-
certain to convey his Goods enfured againft all Peril -, Pa^rHamen^^
fuch were to be refponfible if any Detriment or Lofs hap- Records, fol.
pened *, but that is now become obfolete. 63.
^III. Freigbi is governed generally by the Contracl, and Naut. caup.
ifies according to the Agreement, reduced generally Stab. i^c. Leg,
;to a Writing commonly called a C/^^r/^r-p^r/y, execur '• §-f^^^'^-«-
* ted between the Owners and Merchant, or the Mafler in ^^uirZ^em ^
j the behalf of himfelf and Ov/ners, or himfelf and the conduxerit, in-
Merchant, or between them all ; or elfe is Parol. Jlmmenta con-
The Mailer or Owners generally covenant to provide Jk^-^^^M^o-
a Vikt and all other Officers and Mariners, and all other ^^ '1/ ^Rhod
things necefTary for the Voyage \ and for the taking in Art, 20.
and.delivering out of the Lading.
If there be an Agreement and Earneft, but no Writing, P^^ Leg. Ka-
if the fame be broke off by the Merchant, he lofeth his '^J^' ^^°'^'
Earnejl \ but if the Owners or Mafler repent, they lofe '' * ^*
double the Earneft,
But by the Common Law o^ England., the Party damni- Cro.Car.i^^J
fied may bring his Adion of the Cafe, and recover all Da-
mages on the Agreement.
If a time be appointed by the Charter-party^ and either ^^^ ^f; ^'^^'^
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 againit the other by
Adion, to recompence the Detriment.
If Part of the Lading be on Ship-board, and it happens
I fome Misfortune may overtake the Merchant that he
hath not his full Lading aboard at the time, the. Mafler
is at liberty to contrail with another, and ihall have
Freight by way of Damage for the time that thofe Goods
were aboard after the time limited ; for fuch Agreements
being of a Conditional nature Precedent, a Failure as to a
compleat Lading, will determine the fame, unlefs after-
wards affirmed hy Confent, And though it be no Prudence
for every Merchant or every Mafler to depart from the
Contradl, if it fhould fo fall out that the Agreement as
^0 the Lading is not performed according to Promife,
(feldom or ever done if any Part be aboard) yet it is the
highefl
256 flDf iftmf^t att& €i)atttv^^pmiz:S. Bookii
highefl Juflice, that Ships and Mailers fhould not be In
fettered, but Free: for otherwife by the bare lading of a
Cafk or Bale, they might be defeated of the Opportunity
of Paflage or Seafon of the Year.
Cro. Car.'^Sz. So on the other hand, if the Veffel is not ready, the
3 Le'vhz 283. Merchant may Ihip aboard in another VefTei the Remain-
^^ndua & ^^ ^^^ ^^ ^^^ Goods, and difcharge the firft Skipper, and
Teg.ftitemfun- rccover Damages againft the Mafter or Owners for the
dus iff Leg. reft. This is grounded upon the like Reafon as the
hac difiinaio. former.
^ron ^Ip zt' ^^^ therefore by the Law Marine., Chance, or feme
other notorious Neceflity, will ekcufe the Mafttr \ but
then he lofeth his Freight till fuch time as he breaks ^rounJ^
and till then he fuftains the Lofs of the Ship.
But if the Fault be in the Merchant, he then muft an-
fwer the Mafter and the Ship's Damage, or elfe be liable
to entertain the Ship's Crew ten Days at his own Charf^e;
At.zt^. Legem but if after that, then the full Freight: And if any Da-
Naval. Art. magc happens afterwards, the Merchant muft run the
{aii'iiodS- R^^4^^ of ^^^^y ^"^ "°^ the Mafter or Owners. (5) But
j^aym. '220/* W the Common Law^ fo long as the Mafter hath th? Goods
I Fen. 190, on Ship-board, he muft fee them forth-coming.
^3^. IV. Charter-parties have always, by the Common Lau)^
^Kebnz 11*2 ^^^ ^ genuine Conftru6lion as near as may be, and ac-
135.' ' cording to the Intention and Defign, and not according to
the literal Senfe of Traders, or thofe that Merchandiz.
by Sea, yet they muft be regularly pleaded ; and there-
fore in an Adlion of Covenant on an Indenture dated 9
05f. 38 EL wherein was recited, Whereas by Indenture
Charter-party dated Sep. 8. 38 Eliz. between the Plan:...
and Francis Cherry ; the Plaintiff having hired of him a
Ship, for a Voyage to Dantzick, upon taking the Ship it
was agreed between them, that the Ship fhould be laden
with Corn at Dantzick, and to fail to Leghorn. Now hy
the faid Indenture, in Confideration the Plaintiff had a-
greed, that the Defendant fhould have the Moiety of Com,
quod tunc fuit^ or afterwards fhould be laden in the Ship
during the faid Voyage, the Defendant covenanted to p:i?
the Moiety of the Money for the faid Corn, quod tunc J-
it, or afterwards fhould be laden, ^c. and allcdgeth/*
fa^o, that O^. 9. 38 Eliz. the Ship was laden withw
Lafts of Corn, and for not Performance of this Covenajit
the
r
Chap. IV. 0t JfrefoJlt a«D €imttVpavtim 257
the A6lion was brought ; the Defendant pleaded that
the Deed was fealed and delivered O^. 28. 38 E/iz. ^
nud ad tunc vel poftca there was not any Corn laden there,
.iiid traverfeth the Delivery 05f. 9. or at any Time after-
wards before the 28 Ocf. 38 Eliz. And it was adjudged
'"'^n Demurrer, That in regard the PlaintiiT declared
ipua a Dyed dated 0^7, 9. 38 Eliz. it fhall be intended to
jiave.ifs EfTcncc and Delivery at that time, and no other ;
and if he fliould confefs it to be delivered at any other
"time, it would be a Departure from, his Declaration, and
the Wordiufic is referred to the Delivery, and not to the
Date J and if it were Delivered ten Months after zh^
Dace, he lliould not have the Benefit of the Cora laden
before the delivery : And therefore the Defendant was 2 c^a. 263.
adjudged not to be c'aarged with 'paying for any Corn ojey v. Sir
before the Delivery of the Deed, the Words of thtBaptifi Hicks,
Deed being, that he (liould pay for the Corn then laden,
l:jc, which [then) is referred to the time of the EiTence of
the Deed by the Delivery, and not to the Date,
Atkinfon did contract with Buckle for the Carriage of 3 Bulfi. 1^2.
100 Quarters of Barley, and did promife to deliver unto ^ ^'^^' 3 ^2.
him the lOo Qiiarters of Barley, a Ship board at Barton
Haven, in the County of Tcrk^ to carry them for him,
' and for the Carriage thereof did promife to pay to him
fomuch i and Buckle promifed to carry the fame for him,
and accordingly brought his Ship to the faid Haven, ex-
pe<jLing there the Delivery of the 100 Quarters of Barley ;
\)i\i Atkinfon came not to deliver the fame to him, where-
upon Buckle brought his Action of the Cafe upoft the
Promife, and upon non ajjumpfit pleaded had a Verdict
and Judgment, v/hich was affirmed upon a Writ of Error.
Charter- Party {Charta partita., i. e. a Deed or Writ- '
ting divided) is all one in the Civil Law, with an Inden-
ture at the Common Law. It fettles the Agreement and
Bills of Lading, the Contents of the Cargo, and binds the^
Mailer to deliver them well conditioned at the place of
difcharge, according to the Contents of i'a^ Charter- Party
or Agreement ♦, and for Performance, the Mailer obliges
HImfelf, Ship, Tackle, and Furniture^ to fee the fame
done and performed.
f!£n'
R Covenant
258 Mftzigl^t anD €f)avttvpavtit€* Book 11.
Covenant /«- Covenant upon a Charter Party between Bolton
'^^ p'^ ^^ ^^A Owner, and L^^ and Morgan Merchants, Freighters of a
^"^n'd C.^on Ship, by which Bolton put to Freight the Ship in a Voy-
the other, ^ age to Guinea <it 48 /. per Menfem^ and there was a mutual
quemlibet eo- Covenant between the Parties ^ qiierdibet eoruni modofe-
Ta' ^^^ ^^^ quente^ and then divers Covenants follo\y concerning the
brought a- Ship's Tackle and Performance of the Voyage ; and then
gainil one on- a Covenant for the Payment of the Freight [viz.) when
]y, and well, the Ship arrived at Guinea^ the Freight then due was up.
on Notice to be paid in England^ and when fhc arrived
in England the Refidue from the time of tlie lafl; Payment
was to be paid. And faith that at fuch a time the Ship
arrived, and that 6 Months and 10 Days were then paft,
which came to fo much, whereof Notice v/as given -, and
that after fuch a time the Ship arrived at England, and
that the Freight for 6 Months, from the time of the
laft Payment, and the Freight came to 287 /. 45. and that
the Defendant had not paid any of the Sums, upon which
the Defendant demurred. And took thefe Exceptiof^^i
to the Declaration:
I Mod. Caf. ^ Pqj. j.|^jg j.j^^|. i-j-^g A6lion is broudit againft one, of
Salk 205. ^^^ Defendants only, omitting the other ♦, fed non allocs*
//. 2. tur^ the Covenant being between them 6f quemlibet eormi
is joynt and feveral of every Part.
2. For that it appears upon Computation, the Plain-
tiff demanded more upon the firft Breach than is due by
30 J. and lefs than is due upon the fecond by 16 s. and tho*!
that the firft may be cured by the Jurors finding lefs, or
by the Plaintiff's releafing the Overplus, yet where he
demands lefs than his due, it is incurable ; and cited fe-
veral Books there quoted for that purpofe in Afrumpfit,
wliere, as in this Cafe, only Damages are to be recover-
ed y and on the other Part was cited, Cro. Jac. 498. P^«^
her ten v. Shell en ^ ^ 529. Parker v. Cttrfon ^ uxor, fee
2 Levi?iz 4.. Hulme i^ S ambers, ^ 2 Vent. 129. ^V^^kf
& Philips, Hale Chief Juftice took a Difference between
this Cafe of Covenant, and Debt, and held that after Ver-
dict it had been cured without queftion, but upon Demur-
rer there may be fome Doubt, the Demurrer being ge-
neral, but had the Demurrer been fpecial it had been ill*
and ruled Judgment, pro ^Jhier, 2 Levinz ^6, ^ 3 ^^^^
39. y 50. Bolton and Lee.
r
Chap. IV. ®f jft^eigfit aiiB €1^axUv^4'^ttit0. 259
V. If Goods are fully laded aboard, and the Ship hath Adleg^Rhod-
koke Ground, the Merchant on Confidcration afterwards
refolves not on the Adventure, but will unlade again 5 by
the Law Marine the Freight is due. ^ ,.
And if the Ship in her Voyage becomes unable without Judg.Okron,
the Matter's Fault, or that the Mailer or Ship be arrefted ^^^'^f^' ^'^
byfome Prince or State in her Voyage, the Mafter may
either wend his ^hip, or Freight another.
But if the Merchant will not agree to the fame, then Bigejl.Vauhs,
M'Frei'^jt becomes due for fo much as the Ship hath /• h- f- 2.
imed^ for otherwife the Matter is liable for all Da- §-^^-
mages that fhall happen. And therefore if that Ship, to
uliich the Goods were tranflatcd, perifhed, the Matter
Hiall anfwer -, but if both the Ships perifn, then he is
difcharged.
But if there be extream Necettity, as that the Ship is
in a finking Condition, and an empty Ship is pafTmg by,
or at hand, he may tranfiate the Goods -, and it that Ship
finkorperitties, he is there excufed : But then it mutt be
apparent that that Ship feemed probable ^nd efficient.
'Vi. If a fet time be fixed and agreed upon between the Leg.^uiRmof
Merchant and the Matter, wherein to begin and fin ifii i ^^^^^^-
his- Voyage, ic may not be altered by the Supra Cargo, '^,gXf^/^
without fpecial Committlon for that Purpofe.
If a Matter Oiall weigh Anchor, and ftand out to his
Voyage after the time covenanted or agreed on for his
Departure, if any Damage happens at Sea after that
titne, he fhall refund and make good all fuch Misfortune •,
Yet if a Charter-party is made, that the Plaintiff fliall fail
irom Landon to Lhhon with the iirtt Yv'"ind and Opportu-
nity, ^c, in Confideration of which the Merchant did
covenant to pay fo jnuch for Freight -, the Ship departs
not with the firft Vv^ind and Opportunity, yet afterwards
hmks Ground, and arrives at her Port, the Freight in
this Cafe is become due ; for there is nothing can bar the Popham. \Gi.
Ship of her Freight but the not Departure, for only that ^^f^^ SQj'
in Law is traverfable, being material .to avoid the Pay-
ment of Freight -, but to fay the Ship did not "depart
^ith the next Wind, is but a Circumttance which in
ftri^lnefs of Law is not traverfable. j i jj c^
^ If it be agreed that the Matter ttiall fall from London to lSLf« :I;f
^■^torn in two Months, and Freight accordingly is agreed ^ Cailima-
R :j on, chus.
8.
49.
26o flDf jfrcigljt anD Cfjarte^partiegf. Bock iil
on, if he begins the Voyage within the two Months, tho*
he does nor arrive at Leghorn within the time, yet the
Freis!;ht is become due.
2 yern. 210. Where the EnjU India Company by Charter-Par ty might
keep the Ship a long time in India^ and did fo keep her
until Hie was unfit for Service, and could not come home;
they were obliged in Chancery to pay the Damage -, t(io'
by the perufing of the Charter- Party it was payable at
the Return of the Ship.
2;.. ... 212. So where no Freight was to be paid for the Cairwo
outwards but freight for the Cargo homewards ; and the
Fa6lor abroad had no Goods to load her homewards
Payment of the Freight w^as decreed.
2 Fern. 727. So though the Officers and Mariners o;ave Bond not to
demand Wages unlefs the Ship returned to London y the
arrived at a delivering Port, and afterwards was taken by
the Enemy. They had their Wages to the delivering
Port. -
leg.^ Rekgatt VII. If the Ship is freighted from one Port to another
L't^ u/^^'Je Po^j ^^^ thence to a third, fourth, and fo home to the
Sip. ^vio. Port from whence fhe firfl failed, (commonly called.^
"Trading Voyage) this is all but one and the fam^e Voyage,
fo as it be in Conformity to the Charter-parly.
^rlti. g. Jac. A Merchant agrees with a Mailer, that if he carries
znC.B.Rot. j^jg Goods to fuch a Port, he will then pay him fucha
Bright 'verfus ^^^^ ' ^" ^^^^ Vovage the Ship is afiaulted, entred and
Cooper, I robbed by Pirates, and part of her Lading taken forth,
BrQi.>:nh zi, and afterwards the Remainder is brouo;ht to the Port of
' difcharge, yet the Sum agreed upon is not become due,
for the Agreement is not by the Mafcer performed.
But by the Civil Law this is !i)is major or cafus forluitus,
there being no Default in the Mailer or his Mariners, ffid
the fame is a Danger or Peril of the Sea, which if not in
\^/'' ^"r r ^^''^^ Agreements expreffed, yet is naturally im. plied : For
Rerr'/nerznd ' ^'^^^ Certain, had tliolc Goods, wjiich the Pirates carried
fogaj/a'sCak. away in llrels of Weather, Navis levayida caufa^ been
Pio'witen Com. throwu over-board, the fame would not have made a Dif-
Euta Pirate ability as to the Receipt of the Sum aerecd on ; for by
my." Vide ^ ^^^^^ ^^^ Cpmmcn Law and the Law Marine^ iht Au or
Q\\di^.Firao. God, or tlmof an Enemy, flial) noways work a Wrong
in A^flions private.
yiii. li
Chap. IV. jgDf jfrnglit stiD €'i)avttvpattit0. 26 1
.Vin. If a Ship be freighted by the Tun, and fhe is full
faSen according to the Charter-party^ the Freight is to be
paid for the whole ; otherv/ife but for fo many Tun as the
lidirig amounted to.
'"If Freight be contracted for the lading of certain Cat- Leg.fiquis
tie, or the like, from Dublin to Wcft-Cheftcr^ if fome of Cod.dejufiit,
happen to die before the Ship's Arrival at Weft- ^ MJ^^^-
'efler, the whole Freight is become due as well for the
dead as the living *. *Arg.Leg.fcio
But if the Freight be contra61:ed for the tranfporting/'- ^i^"]"'^^'
them, if Death happens, there arifeth due no more Freight ^Hl'^^^^ /*% ' if
than only for fjch as are living, at the Ship's Arrival at d&condit. S '
, her Port of Difcharge, and not for the Dead f . demon. Arg.-j,
^llf'the Catde or Slaves are fent aboard, and no agree- i Leg-qmope-
ment is made either for lading or tranfporting them, but ^"^^/^ /f^'
generally, then Freight fhall be paid as well for the Dead quidatn & §.
as the Living. f»-ff- ^^^^'*
If Freight be contradled for the tranfporting of Wo- ^jJ^^^ r..
men, and they happen in the Voyage to be delivered of ^^j/^J^/^^^^'
Children on Ship-board, no Freight becomes due for the jr. heat.
Infants.
"The Charter-pcirty does fettle the Agreement.^ and the There are 3
Bills of Lading- the Contents of the Cargo, and binds ?^^^^ °^ ^^^'
ihe Mafler to deliver them v/ell conditioned at the f^lace ^j!^f^|^^\J^g
of Difcharge, according to the Contents of the Charter- one to be
party or Agreement ^ and for Performance, the Mailer ^ent over Sea
obliges Himfelf, Ship, Tackle and Furniture to fee the 'I ^';^ 'J^°^
c Si 1 r ■> tfie vjrooos arc
lame done and performed. configned to.
If Goods are fent aboard, generally the Freight muft the other for
be according to Freight for the like accuftomed Voy- ^^^e Mafter,
^fyog , and thelaft
If a Ship fhall be freighted and named to be of fuch a chant or
Burden, and' being freighted by the Tun, fhall be found Lader.
lefs, there fhall no more be paid than only by the Tun
for all fuch Goods as were laded aboard.
If a Ship be freighted for tv/o hundred Tuns or there-
abouts, the addition of ihereahouts is commonly reduced
to be within five Tun, more or lefs, as the Moiety of
the number '^en^ v/hereof the whole number is com-
pounded.
If a Ship be freighted by the great, and the Burden of chaf^jonti
Jp not exprefied, yet the Sum certain is to be paid. n)erf.U-verhg,
R 3 IX. If%/^i2 20.
262 fiDf freight atiD €i)avuvpmtit^. Book ii.
Leg penult. § IX. If the Ship, by realbn of any Fault arifing from the
9./'. dclocat. Freighter, as hiding aboard prohibited or unlawful Com-
modities, occafions a Detention, or otherwifc impedes
the Ship's Voyage, he fhall anfvvcr the Freight contrafted
and agreed for.
Trin. ^.Ja£. If a Ship be freighted out and in^ there arifes due for
B. R. Bright. Freight, nothing, till the whole Voyage be performed :
ijerf. Cozvper, g^ ^^^^^ -^' ^k^ g,^^ ^ ^^ jg ^^^ ^.^^ comjng home, the
I part. zi. Freight outwards, as well as inwards becomes loll.
13th 7^6^' 1680, in Chancery, a Part-Owner of a
Ship fued the oth^r Owners, for his Share of the Freight
of tYiS, Ship which finiflied her Voyage ♦, but the other
Owners fet her out, and the Complainant would wk
join with them in fetting her out, or in the Charge
thereof ; whereupon the other Owiiers complained jin
the Admiralty -, and by Order there, the other Owners
gave Security, That if the Ship perifhed in the Voyage,
to make good to the Plaintiff his Share, or to that ef-
fed; in fuch a Cafe, by the Law Marine, and Courfeof
the Adm.iraky, the Plaintiff was to have no Share of
the Freight. It was referred to Sir Lionel Jenkins to
certify the Courfe of the Admiralty, who certified ac-
cordingly, and that it was fo in all places, for otherwife
there would be no Navigation, whereupon the Plaintiff's
Bill was difmiff. See more of Freight, and the Inci-
dents thereunto, Lex Mercaioria ico. w,a
Leg. Oleron. X. If a Mailer freights out his Ship, and afterwards
Leg. Na'ual. fccrctly takes in other Goods unknown to the firil La*
Rhod.Jrt.zz, ^gj.5^ |3y j-i^g i^^^^ Marine he lofes his Freight; and if it
fhould fo fall cut, that any of the Freighter's Ggods
Ihould for Safety of the Ship be caft over-board, thetcfl
fhall not become fubjecl to the Average, but the Mafter
muff make good that cut of his own Purfe : But if the
Goods are brought into the Ship fecretly againft his
Knowledge, it is otherwife ; and Goods fo brought in^
Cov'hl del ^^^ (^iVTit may be fubjeded to what Freight the Mailer
jlf^;-.* thinks fitting.
If the Ship puts into any other Port than what flie was
Le<r, Oleron. freighted to, the Mafter fhall anfv/er Damage to the
Merchant j but if forced in by Storm, or by Enemy, oi*
Pirates, he then muff fail to the Port conditioned at his
own Cofts,
Generally
X
\
Chap. IV. £)f f tei'aljt auh C^arter^pattiejj. 263
j'.GencnjlIy the touchmg at fever al Forts by Agreement^ im- Kule.
fort^ not a Diverjiiy^ but a Voyage entire.
XL If FalTengers having Goods, happen to die on
Ship-board, the Mafter is to inventory their Concerns,
and the fame may keep a Year ♦, and if none claim the
fame, the Mafher becomes Proprietor defeafable : But the
Bedding and Furniture of the Parties become the Mailer's
and his Mates, and the Clothing are to be brought to
the Ship-Maft-Head^ and there praifed and diftributed Leg. Conplat,
an^ongft the Crew^ as a reward for their Care of feeing the del Mtre,
Body put into the Sea.
The Captain died leaving Money on Board, the Mate
became Captain, and improved the Money : He fliall, J ^' ^ *
on Allowance for his Care in the Management of it, ac-
count for the Profits, and not for the Intereft only.
XIL The Lading of the Ship in Conftrudlion of Law, -^^l^- 'm %.
[^tacitly obhged for the Freight, the fam.e being, in Point ^^^^v^'^-f^M-
of Payment, preferred before any other Debts to which "ouid erzo Cod.
the Goods fo laden are liable, though fuch Debts, as to locat.
time, were precedent to the Freight •, for the Goods re-
main as it were bailed for the fame : Nor can they be at-
tached in the Mailer's Hands, though vulgarly it is con^
ceived.otherv/ife.
Ships deierve PF^ges like unto a Labourer •, and there-
fore in the Eye of the Law, the Aclions touching the
fame, are generally conilrued, favourably for the Ship ^^^»h '^^^./«*
and her Owners: And therefore if four Part-Owners ^^t"?/ ^""f^'
ofEve, fhall make up their Accounts with the Freigh-
ters, and receive their ProDortiohs, yet the fifth Man
may fue fingly by himfelf without joining with the reft ;
knd this as v/eli by the Common Ldiu as the Law Ma-
rine,
XIII. A Ship in her Voyage happens to be taken by an
Enemy, afterwards in Battle is re- taken by another Ship
in Amity, and Reilitution is made, and (he proceeds on
in her Voyage, the Contract is not d^itermined, though yR.iStaiha;^
the taking by the Enemy divefted the Property cut of the Abridg. 54.
Owners ; yet by the Law of War that PoiTelTion was de-
feafeable, and being recovered in Battle afterwards, the InJurePoftn-
Owners became re^inveftcd : So the Contrad, by Fidion ^^'"^5;/'.'.
of Law, became as if flie never had been taken, and fo ^^/}^ ^.^'^/'^
the entire Freight becomes due.
R A. Covenant
264 ©f ftmljt ann €\^amtrpanit$. Booj: Hh
Covenant by a Charter- Party, that the Ship fhall re-
turn within the River of 'Thames by a certain time
{periculis i^ cafualiiaUhus Marium., Anglue^ Dangers of the
Sea, exceptis) and after in the Voyage, and within "the
time of the return, the Ship was taken upon the. Sea,
fer homines beUicofos niodo guerrino arraiatos^ to the Covc-
liantor unknown, i^c. iif cihinde hue afque detenta fuit )dj
them, per qiiod he could not return within the River of
Thames v/ithin the tirtie mentioned in the Covenant.
Refolved this Impediment was within the Exception,: for
tiiefe Words intend as well any Danger upon the Sea hy
Pirates and Men of War, as Dangers of the Sea by Ship-
wreck, Temped, or the like. Pickering and Barkla^
sales 132. ^ 2 Roll's Abridg. 248. " ^^/
Boya^j. Cole, XIV. If Freight be taken for 100 Tuns of Wine, and
Hill. 2^, 27 twenty of them leak out, fo that there ~ is not above
eight Inches from the Buge upwards, yet the Freight be-
comes due : One Reafon is, becaufe from that Gage the
King becomes entitled to CuPcom, but if they be under
eight Inches, by fome it is conceived to be then in the
Election of the Freigjirers to fiins; them up to the Maflfir
o ox
ibr Freight, and the Merchant is difcharged. But molt
conceive otherv/iie ; for if all had leak'd out, (if there was
no Fault in the Mafter) there is no Reafon the Ship
fliould lofe her Freight ; for the Freight ariies from the
Tunnac:e taken, and if the Leaka&;e was occafidned
through Storm, the i^imc perhaps may come into ati
Average. Befides, in Bcta-deaux the Mafter ftowsnot the
Goods, but the particular Officers appointed for that
Purpofe, qucd 7iota, Perhaps a fpecial Convention inay
alter the Cafe.
Mofl: certain, if a Ship, freighted by the Great, be caft
i^ar, 2. B. R.
.When fuch away, the Freight vanilhes -, but if by the Tun or Pieces
;:^!:°ll"'"'!v„ of Com.modity, and Ihe happens to be caft away, after-
Infured com- Wards Part is laved ; doubted whether pro rata Ihe ought
jTioniy tranf- not to be anfwered her Freight.
fer thofe
Goods over to the Aflurors, who take them towards SatisfatH-ion of what ibey p^y
hy Virtue of their Subfcriptions.
Debt upon* a Charter-party upon a Penalty, the Co-
venant was to pay To much per Tun for Freight, and
Breach v/as afUgned in non Payment, for fo many Turti
and
chxp. IV. 0( jFveigtjt ana €l9mmpavtit?. 265
d an Hogiliead, which came to fo much : Upon De-
lurrer, 'twas held the Declaration was ill, for the Co-
venant is only to pay fo much per Tun ; aliter if it had
beenjto my fecundum ratam of fo much per Tun. Roe a- Teh, 134.
aainft 5^in/J. .2 Lm;72; 1 24. ^ 3 Kehle 421.
° XV. If a Merchant takes F'reight by contra61:ing with
a Mariner that is not a Mafter, if Lofs happens, he muft
be contented to fit down without any Remedy againft the
Owners ; but perhaps fuch a Mariner for fuch an Ad may
fubjed himfelf to an Adion.
£ut if there be a Fault commited by a Mariner which j^hfi, 146.
was hired, or put in by the Mafter or Owners ; there for
Reparation the Owners become liable.
XVI. The Mafter is not bound to anfwer Freight to JohannesLo-
theOv/ners for Pallengers, if they are found to be una- ^"^^^^' ■^'^'
ble to pay.
If Ship by Charter-party reciting to be of the burden of
200 Tuns is taken to Freight for a Sum certain, to be
paid at her return, the fum certain is to be paid, though
the Ship amounts not to that Burden.
IfaShip is freighted after the rate of 20 /. for every
Month that fhe Iliali be out, to be paid after arrival at
tlie Port Q^ London -, the Ship is caft away coming up from
t\itdowns^h\M the Lading is all preferved ; yet the Freight
is become due : For the Money arifes due monthly by the
Contrad, and the Place mentioned is only to ftiev/ where
payment is to be made, for the Ship deferves Wages like
ai/Iariner, who ferveth by the Month -, and though he
dj^^.'in the Voyage, yet his Executors are to be anfwered
fro rata. Befides, the Freight becomes due by intend-
ment on the delivery or bringing up of the Commodities
tothe Port of London^ and not of the Ship.
,:lf;fiMan freights a Ship out, and covenants that the ^ j.^ ^.^3^
Ship with the firft Wind and Opportunity ftiould fail out J j„i 204. «
of that Port to Cales^ and the Freighter covenants that he Dy^ 76. a.
for the Freight of all the Premiffes would pay unto the 2 ^and. 3-0.
Mafter 184/. pro tola iransfretatione omnimn premiffarum^
if the Mafter doth not aver that the Ship did arrive at
the Port of Cales^ he cannot maintain an Action againft
the Freighter.
• If the Mafter enters into a Charter-Party for him-
fdf 'and OwnerSj the Mafter in that cafe may releafe
the
Jl
^e
266 iS>t svmU ana Cftarte^pattiejs, Book ii.
the Freighters without advifing with the Owners-, butr
the Owners let out to Freight fuch aShip whereof 7. 5
is Mafter, though the Mailer covenant in the fame
Charter-party and fubfcribes, yet his Releafe in that cafe
will not bind the Owners, but the Owners Releafe on the
other hand will conclude the Mafter : And the reafon is
for that the Mafter is not made a proper Party to the In-
denture. And fo it was ruled, where an Indenture of
Charter-party was made between Scudamore and other Ow-
ners of the good Ship called the B. v/hcrtof Robert Pit,
man was Mafter on the one Part, and Vandenftene on the
other Part; in which Indenture the Plaintiff did coven:
with the fiid Vandenftene and Robert Pitman^ and boii
themfelves to the Plaintiff and Robert Pitman for perfor-
Cro E/iz. 56 mance of Covenants in 6co /. and the Conclufion of the
Scudaraore ^ Indenture was, "■ In witnefs whereof the faid Robert
ar <verfusPit piffyi^H put his Hand and Seal, and delivered the fame-,
£//i inB^R. ^^ ^^ Adion of Covenant for not performing certain Go-
cited in Co^e venants in this Indenture, the. Defendant pleaded the
^hpt.fol. Releafe o^ Pitman \ whereupon the Plaintiff demurred;
^73. And it' was adjudged, That the Releafe o'i Pitman did not
^coT^^cliid^'^^^^^ Plaintiff, becaufe he was no Party to the Inden-
^ 3 Lenjinz ture ; and the diverfity in that cafe w^as taken.and agreed
238. Gilby between an Indenture reciprocal between Parties on the one
'v^^ffii Copley, jQjjg^ jjj^j Parties on the other fide, as that was •, for there
^cmra ^ ^^ Bond, Covenant or Grant can be made to or vvith any
that is not party to the Deed ; but where the Deed indent-
ed is not reciprocal, but is without a Between^ &c. as Om-
7iibiis Chrifti fidelibus^ &c. there a Bond, Covenantor
Grant may be made to divers feveral Perfons.
If an Indenture of CZ'^r/fr-pt^r/j be made between //.
and B. Owners of a Ship ol the one Part, and C. and D.
Merchants of the other Part, and A. only feals the D:ed
of the one Part, and C. and D. of the other Part ;
but in the Indenture it is mentioned that A. and B. co-
venant with C. and D. and C. and D. covenant with
A, B, in this Cafe J. and B. may join in an Aftiona-
gainft C. and D. tho' that B. never fealed the Deed, for
he is a Party to the Deed, and C and D. have fealed the
other Part to B. as well as to J. Clement agalnft Henleji
2 Rolls Abr. 22.
XVll
f
li (jp-AP. IV. ©f f reigtft anh €^avttv^^pattit§. 267
XVII. Covenant upon a Charter-party^ by which the Covenants
Mafter of the Ship covenants to fail with the firft fair mutual fhall
r Wind to Barcelona^ 2i\-\6. that the Mariners fhall attend edone^a^?[i
with a Boat to relade the Ship, and then to return with the other.
the 6r(l fair Wind to London^ and to unlade and deliver
the Goods, and the Merchants covenant to pay fo much
for Freight, and fo much for Demurage every day ; the
Mafter brought his Acflion for the Freight and Demu-
rage, and declares that he failed fuch a Day with the firft
fair Wind, and upon all the other Points. The Defen-
dant, quoad iht Freight, that the Ship did not return di-
redly to London^ but went to Alicant and Tangier and
made divers Deviations, and by thefe delays the Goods
were ff^oiled, and as to the Demurage, that this was oc-
cafioned by the Negligence of the Mariners in not attend-
ing with the Boat to relade the Ship ; to which the Plain-
tiff demuired, and per Curiam pro ^ler. for that the Co-
venants are mutual and reciprocal, upon v/hich each ihall
have his Action againft the other, but fnall not plead
the breach of one in bar of another, for perhaps the da-
mage of the one fide and of the other are not equal, 3 Le*
vinz^^i. Cole centra Shallet. & Tho. Jones 2.16, Show-
frjagainfl Cuamore.
In Covenant the Plaintiff declared, that he covenanted Pica that a n-
to fail with a Ship to D. in Ireland^ and there to take ^werstoPart
280 Men of the Defendant's, and to carry them to Jamais r"^^lV^68
ca^ and the Defendant covenanted to have the 280 Men ^/, ^.^Jq J
there ready, and to pay. for their carriage 5/. for each 10.433,434.
MaDj, and that the Defendant had not the 2,80 Men rea- Cro,Jac. 27.
dy, but that he had 180, which he took on Board, and ^^Ztl^^^'
carried them, but that* the Defendant had not paid for 7,^^^^/, ^02'.
them-, the Defendant pleaded that he had the 280 Men Plon.vd. 138.
JT^ady, and tendered to the Plaintiff, who refufed to
re5:^ive them, but faid nothing as to the carrying of the
i,So Men, nor to the Payment for them -, and for that it
was not a Plea to all, Judgment was given for the Plain-
tiff upon Demurrer, 1 Levinz 16 , 1 Kcble 100.
C H A P.
[ 268 ]
CHAP. V.
0( mvWh,
I. Of Goods tvrecktf as in relationSWl. Of Flotfam, JetfaB),
to the Alteration of the Property
by the Ci-vil Lanxj.
II. Of the Prefervation of Goods
wreckt, and the Punijhment of
ar'i
Lagan, nvhere the Kir" ''
have the fame, and -xtvA ...
the Grant of Wreck thfjamt
paj/es I and nvhere a Suhjc£i' Mat
thofe that Jhall add Mifery to the \ prefcrihe.
Condition of.Juch Perjons fo di- VII. OfShips'WXtQ^&iandnoCrta
frefd
III. Of Goods \vrtc]^t, their Prefcr-
'vatton according to the Lavos of
Oleron, /jWo/' England, and of
ture in them, yet no Wreck; anl
of Ships for faken, njohether in lav
accounted lojl or Rureckt, or bli-
ther.
the Punijhment of thofe that Jhall \\' III. Of the SherlJ^s Dutyasinrt-
lation to Goods wreckt; W»/
Oivners their time of claiming ihiir
Property.
tjot make Reftitution..
IV. Of Contribution (where the Ship
periJheSf and the Goods are allfa-
- fvedy andivhere not. j IX. Wreckc Goods not to pay Cu
V. The King ^ Great. Britain'j i /lom.
Prerogative as in relation ' to X. Of Wreck, in the IHe [f
Wreck afid other Royalties of the \ Wight, not in the Admiral mi'-)-
Sea . out fpecial (Fords .
I. Y N matters of /Fr^i:^ there is, as it were, aContraiS:
X between them which have loft their Goods by fuch
Misfortune, and them upon whofe Lands the Goods and
Merchandize are driven, that the fame be reftored to them
or thofe that claim under them. And therefore by the
de^huenZ/' ^''^'^ ^^'^^ ^^ ^^ prccifcly forbid, that no Man fhall med-
ruina & liau- die with fuch Goods a^ are wreckt ; and fuch as are pro-
jragio. ved to have ftoln any thing thereout, are holden for Rob-
bers j for that fuch Goods being caft on Land and reco-
•^^.S'-44- ^'^^ vered out of the Sea, remain ftill his who was the Owner
acq, ter. m, ^^^^^s^^ ^^^ defcend upon his SuccciTor; neither Efchcat
to the King, neither to any other to whom the King hath
granted fuch Royal Privilege.
The reafon why the Laws were fo ftriclly declared by
the Romans, was, for that by the Laws of i^ W^J, it any
Ship had become Wreck, though all the Perfons were h-
ved
f
chap.v, m esirecfi* 269
' vedand alive, yet the Ship and Goods became feizable by
the Lord : But the fame being barbarous, was afterwards
repealed and abrogated.
The Emperor CGr>ftanftine the Great lays, in this Cafe,
if any Ship at any time by any Shipwreck be driven to
rhelhore, or touch at any Land, Let the Owner have it^ ^^i- i./z^. u.
end lei not ray Exchequer meddle with it : For what Right ' ^ ^w^g-
hath my Exchequer in another man^s Calamity^ fo that it
jhould hunt after Gain in fiich a woful Cafe as this is ?
And yet if no Kindred appear within a Year and a Day,
or, appearing, prove not the Goods ihipwreck'd to be
theirs, the Goods come to the Exchequer^ even by that
Law : So much that Law condemns carelefTnefs, which is
written, zngilantihus i^ non dormientibus^ ^c. ■ And with
this agree the Laws of Oleron and the Laws of this Land,
as taken out of thofe Imperial Laws, in that Point, as is
conceived.
II. The Civil Law was ever fo Curious and Careful to
preferve the Goods of fuch miferable Perfons, that if any Jj^^f^J^ ^^'
Hiould Ileal fuch, they fhould pay four-fold to the Ow- kg.ineumcum
ner, if purfued within a Year and a Day, and as much auth.feq, de
10 tht Prince or his Admiral : So careful were they, and ^'^^•^^-§''3-''«
fo exa61: in requiring Reftitution, that the very dealing of -^^^^^ ^naupa '
a Nail, or the Worth thereof, obliged the Thief to the
Reftitution of all the remaining Goods. And by the 'Em-
^trox Antonitts it was made a Law for fuch fort of Men,
that they Ihould bebatten'd and banifh'd for three Years j le?. pedihus
but that was for only thofe of a high and honourable ^oi.
Rank: But thofe that were Bafe and Ignoble, fliould be
fcourged and fent to the Gallies or Metal Mines. ^^^ ^<?. A'-
And the preventino- of Help to fuch fhipwreckt ^''^T'^'.'^'^'^'
rerlons, was punifh d with the lame Sufiering as a
Murderer.
The like for thofe that put forth any treacherous Lan-
thorn or Light, with Intention to fubjed others to Dan-
ger or Shipwreck, thefc were punifhed with Death.
And though no Harm happens, yet he may be punifh-
ed: Hence it is, that Fifhers are forbidden to fifh with ^^rJegAncend.
Lights in the Night, for fear of betraying Sailers. Teg.mpifc'cufr.
III. And here I*
cannot omit the great and pious Care that his Majefty hath had, in his Diredions a-
oout Light-Houfes ar;d Lanchcrns, ^nd other fpecial Sea-marks ; but more efpecially in
his
i
270 SDt WMtk. Book 1
his ere6>i'ng at his own Priacely Charge, that moft F-xcellent Lighi-Houfe near G •
fon by Tannouthy which, both for Height, Curioiity and Form, is not inferior to
not excelling, all, or raoft, in Chrillendom.
III. And as the Emperor, and other maritime Kir-
doms, had in fome fort abrogated and repealed that cru.
Law, and fubjedted the Violaters to Punilliment for th:
Inhumanity offered to fach diftreffed Perfons ; fo our Fa-
mous King 7^/<;^^r^, returning from the Holy War, in
his own Experience at Sea, became fenfible of the Mifcri-
which Merchants and Mariners at Sea underv/ent, their
Lives being always within few Inches, often within a:i
Hair's Breadth of Death ; and having Confideradon'ot
their Calamities and Diflrefled State in his Voyage, re-
folved to revoke that Law, and at Oleron in the Bay of
Aquitain fthen part of his Dominions, as Sovereign Lad
of the Ocean, and ail thofe Maritime Kingdoms) did
there, amongft other good Marine Laws, declare, iHifl/
if any Perfon or living I'hitig efcaped out of any inrick-
ed Ship to Land^ it JJoould not be Wreck or confifcaui h
him or his SucccJJor^ as it was before^ though all the M:::
efcaped alive. For before that, both in England and in
* J^raaon, hh. * f^oYmarJy\ the ■\ Crown was entitled to fhipwrcck:
Xcu^.uma ^oods, and the King y^r^ G^w/i^^;;^ (indeed accordii^ to
Norman. c,\'], the Rhodian Law) became Heir unto them, v/hich other-
wife Jure naturali were conceived to be in bonis nulliuf,
pertaining to no Owner: But now that Valiant and Re-
ligious Prince refolved no longer to embrace fo cruel
a Prerogative, by the dripping the difLreffed Mariners of
thofe Rags of their Eftates, which the Mercy andModeilv
of the Waves and Winds had left tiiem -, and therefore
in the Month of O^ober at MeJTana^ in the prcfence oi
i?i?r5rBVj^^^« ^"^^"y -^^'chbifhops, and Bifliops, and others, he then tor
in'^the latter ever quitted the Royal Claim to Wrecks, which after-
part of his wards was declared and publilhed at Oleron in his own
tiT'joan' Territories ; fo that if any Man out of the Ship came
jiromptlT' alive to Hiore, the Property of the fhipwreckt Goods
CJoron.Coll. was flill preferved to the Owner : Which Royal Con*
fol. 1S87. defcention was fo enlarged by our fucceeding Kings
That if a Man., Dog^ or Cat efcapes alive out of the Sb'ti^
neither the Ship or other Fejfel^ nor any thing therein jhttJi
he adjudged Vvreck, but the Goods fhall be faved and . ^
^}
(Chap. V. ffifsBrccS* 271
h the Sheriff, Coroners, or the King's Bailiffs^ and dc-
Mrd to the Inhabitants of the Tozvn where the Goods are
found', fo that if any^ within a Tear and a D/ry, fue for Wejlm.\,c,\,
ihofe Goods, and after prove that they were his at the time 3^- *•
: fflifg Shipwreck, they fljall be refloredto him without delay :
K ^i if not, they fhall be feized by the f aid Sheriffs Coroners^ 2 ////?. 166.
^t bailiffs for the King^s ufe -, and fhall be delivered to the
l^hnhitants of the Town, who fhall anfwer before the Jufiices
■J the Wreck belonging to the King : But this good Law ^^^ ^^^' '
ftUnds not to Pirates, Robbers, Sea Rovers, Turks, or other ^°"*
Estmies to the Catholick Faith.
Where the Wreck belongs to another, he fhall have it
1 like manner •, and if any be attainted to have done
oiherwife, he fhall fafl^er Imprifonment, make Fine to
the ILin^, and yield Damage alfo.
Ifa Bailiff do it, and it be difallowed by his Lord, the
Bailiff fhall anfwer for it if he hath wherewithal -, but if
not, the Lord fhall deliver his Bailiff's Body to theKing.
IV. If the Ship periflies only, and the Goods are fafe,
in that Cafe the Goods ought to pay a Proportion of a ^^' -]Z* ^iL.
fifth or tenth Penny, according to the eafy or difficult .q/
\ Winning or Saving of the fliid Goods. Rich Goods, as
Gold, and Silver, and Silk, pay lefs than Goods of great
Weight and Cumber, being in lefs Danger, unlefs it were
a Wreck going into a Port, v/hich the Skipper was not
bound for, there e contra, then the Skipper is not to be
confidered.
Goods may be retained for Payment of Salvage. id.Raxm.
But if the Ship and Goods perifli in the wSea, and the 393.
Owners do totally forfake her, and fo fhe becomes a meer
Dmli^^ in that Cafe the firfl Poffeffor that recovers her»
or any part of her Lading, gains a Property : And this
according to the Laws of Nations, as is that given for lofi,
"'i^hsreof there is 710 Hopes of Recovery^ like a Lamb in the
"aws of a Lion. And the incomparable Ulpian compares
^^^^zDereli^ion to a Man that knows his own Goods to
i^e by another Man detained, and makes no Claim unto
them in along time j unlefs fome Caufe do manifeftly'
appear, feems to do it to no other purpofc but to fliew
fhat he is willing to renounce them -, and this is it what
Ulpian elfewhere intends, where he faith, that a Houfe
poffefs*d for along time by -another, and no Claim made,
nor
^72 SDf mvu% Book;
nor Rent demanded for it, feems to be deferted bv •
right Owqer.
To eicaEi Inta-eft long fmcc due^ faith the good Empcn.
Antonius^ is hardly juft ; for the not demanding it infolo^t,
a /pace, makes it probable that thou wert 'willin? to remit -
and that by not fo much as demanding it^ thy purpofe 'Was :■
make thy [elf the more Beloved and Honoured^ and th B:
the more Thankful.
Now that Silence fhould be of fuch a force as to
juftify our Prefumption of a Dereli^iion^ two things arere
quifite 5 Firfl:, That he that is filent knows that he hath
a Right J for him that knows it not, Silence canno:
prejudice. Secondly, That his Silence be free and vo-
luntary, and not occafioned by Fear, or any other fuch
Caufe ; and the true Realon is, that it is hardly pofliblc
that in a long time a Man fhould not by fome Means
or other arrive at the Knowled2:e of his own RjtJhr
time ' daily adminiftring occaiions to the difcovery of
Truth.
But becaufe that time, which exceecfs the Memory of
Man, is in a moral Senfe infinite, therefore if Claim be
not made -with a reafonable time to a thing out of P[)f.
Grotiusjih. 2. feflion, it is a fufficient Prefumption that it is fcrfobr.,
<:«/•. 4. §. 5,6. unlefs fome very Urong Reafons be brought to the con-
trary ; and therefore the recovery of the Plate near r'..
BahamaRocks^ loll near fifty Years before by thcSpnniar:.,
becam.e mofl apparently a Derelidt, and free not cn:y
for the Undertakers to recover and pofTefs, but to keep
nlrt^ al.^' '^^ a Property juftly acquired by them, as well by th:
2ny^nf2o\t?,j. Laws of Nations, as the Civil Law.
lyE.z.c.ii. V. The King fhall have Wreck of the Sea, \Vhales,arJ
great Sturgeons taken in the Sea, and elfewhere through-
out the whole Realm, except in Places privileged by
the King.
Id Raj-m. Alfo Wreck may be claimed by Prefcription : and r' ^
^74- Lord High Admiral poflibly may have it by Pre-
fcription.
LdRaym. ^ ^^^^^ ^^ ^^^^j^ ^^ ^^^ Lord High Admiral asap-
^' pertaining to his Office, will not pais Wreck belonging
Sir Henry Con- ^^ ^^^ King's Mauor by Prefcription,
jiable'^Cz^c, VI. By the Grant of Wreck will pafs Flotfam, JtW:
Coke, ^ pari. ^^^ Lagan, when they are caft upon the Landj bat"
>/. 107. ^ ' ^ ^ they
Chap. V. g>t muc% 273
they are not caft upon the Land, the Admiral hath Ju-
rifdiclion, and not the Common Lazv^ and they cannot be
faid Wreck.
JVreccum. Maris ^ are fuch Gpods only as are call and 5 Co. 106. /«,
\A upon the Land by the Sea. 5 ^<'' '^o^- ^»
Floijamy is when a Ship is funk, or otherwife perifhed,
and the Goods float upon the Sea.
Jetfam^ is when the Ship is in danger to be funk, and -^^y*
for lightning the Ship the Goods are cail intp the Sea,
iiotwidiflanding which the Ship perifheth. ^
Lagan vel Ligan^ is when the Goods being heavy, are Ihid.
caft into the Sea before the Ship periihes, which by the Braaon, Hk
Prudence of the Mafter or Mariners, who have an In- 3- ^- 2.
tent to fave them fo funk, as that they may come at them
again ; in order to which they fallen a Buoy or other
light Matter, that may fignify to them where they lie,
if Providence fliould bring them in a Condition to retake
them ; (sj dicitur Ligar a Uganda.
The King fhall have Floifam., Jetfam an/i Lagan ^ when r. A^. B. ml
the Ship perifheth, or when the Owners of the Goods 46 ^. 3. 15.
are not known j but when the Ship p^rifhes not, e ^^'^'^^ Plane's
^ ^ terezrtni com-
'^^^'^' ^ , vtmiadefuc^
A Man may have Flotfam and Jetfam by the King's csjp.onihus acq^
Grant-, and may have F/(?//^;?2 within the high and low .^^^■-^^|--0^'?^-o«'
Water-mark by Prefcription, as it appears by thofe of Coh ^. fart,
the Weft-Countries, v/ho prefcribe to have Wreck in the/'^-*°7-
Sea -, fo far as they may fee a Humher Barrel. J^ 167'^^ ^ *
VII. If the Ship be ready to perifh, and all the Men i^^^ g. ^^ ^g
therein, for Safeguard of their Lives, leave the Ship, and k^. Rhcd. de
after the forfliken Ship pcriflies, if any of the Men be/'^'^*-
faved and come to Land, the Goods arc not loft.
A Ship on the Sea was purfued by Enemies, the Men
therein for Safeguard of their Lives, forfake the Ship,
the Enemies take the Ship, and fpoils her of her Goods
and Tackle, and turn her to Sea \ by ftrcfs of Weather z, R. 2. pro.
fteis caft on Land, v/here it happened her Men arrived 1 'WilHeimolip^
It was rcfolved by all the judges of England, that th? Y''^'' ^ ^^Z-
ohip was no Wreck, nor loft. 4,5 ^. xi
VIII. If Goods are caft up as a Wreck, and it fiills out z>. dsfuru
they be ^o«i7 peritura.^ the Sherift" may fell them within /"/. C^/«. 466,
the Year, and the Sale is good \ but he muft account to
the true Ov/ncrs.
S Owners
274 ^i mvttfi. BOOK^I],
F.N.B.fol. Owners claiming the Wreck, muft make their Proof
Yc ^' d 1h ^y ^^^^^ Marks or Cocquets, by the Book of Cuftoms, or
ihatl^be ac- ^^ ^7 ^^^ Tcilimony of honcft Men ; and if the Wreck be-
counted from longs to the King, the Party may fue out a CommiiTionto
the Seizure, j^ear and determine, and that by the Oaths of twelve Men ;
^ C"^ '^^^ ^'' ^^^^ ^^ ^'^^ bring his Adion at Law, and make out his
I Keb. 657. Pi'oo^ t>y Verdi3i ; but fuch Adion muft be brought with-
in the Tear and Day.
5 Co. 126. h. Note^ Jplotfam^ J^ff-f^^ and Lagan, are Goods on or in
the Sea, and belong to the King, who by Charter hath
o;ranted them to the Lord Admiral.
Lcfc u^re- IX. If Goods were wrecked on the Shore, and the
fo/^zd Bat Lord having Power, takes them, he fliall not pay Cullom,
iince adjudo-- neither by the Common Law nor by the Statute ♦, for at the
ed in C. B. Common Law^ wrecked Goods could not be charged with
"P°",.^^P^^'^j Cuftom, becaufe at the Common Law all V/reck was wholly
2xlTEdmund\ ^^ King's, and he could not have a fmall Duty of Cu-
JBuryh\Suffolk. ftom out of that which was all his own ; and by Wejlm.
Sbepknrdv. i. wlicrc wrccked Goods belonged more to another than
Gofnold, UilL fQ j-v,g King, he (hall have it in like manner, that is, as
Vaughan, fol. Now Goods that are chargeable with Cuftom,.accord-
159. ing to the A(5l of Tunnage and Poundage^ muft have thefe
Properties.
izCar. z,c.^, i. They muft be Goods which ftialj come or be brought
into the Ports or Places of the Kingdom.
2. They miuft come or be brought into fuch Ports ox
Places, as Merchandize that is for fale, and to that end ;
for there can be no other Conception of Goods broughtas
Merchandize, v^
3. They muft come and be brought as Merchaniip^
and for fale by the King's natural born Subjeds, or i)y
Strangers and Aliens, as diftinguifned from the natural
Subje(5ts.
4. The Duty payable to the King, is to be meafured
by the Quality of him that imports the Commodity ; that
is, if the Importer be a natural Subject, he pays kfs to
the King ; and if an Alien, more.
5. All thofe Goods charged with the Duty by the Sta-
tute, fo to come, or be brought into Ports or Places of
the Kingdom, are to be foreign, as of the Growth or
France, the Levant, Spain^ Portugal, Germany, ^c.
Whence
chak V. ofi^rccTn 275
Whence it follows, i. That Goods of foreign Growth,
and whidi by their kind are to pay Duty, if they fhall
come or be brought into the Ports or Places of the King-
dom, neither by the King's natural born Subjeds, nor by
Aliens, they are not chargeabk with the Duties menti-
oned in the A61.
2. If they are not brought into the Ports and Places of
the Kingdom as Merchandize, 'viz. for Sale, they are not
charoeable with the Duty ; but Wines or other Goods
coming or brought into the Realm as JVreck^ are neither
brought into the Kingdom by any of the King's Natural
torn Stihje5fs^ nor by any Stningers^ but by the Wind and
Sea ; for fuch Goods want a Proprietor until the Law-
appoints one.
3. Wrecked Goods are not brought into the Kingdom,
being caft on Shore, as Merthandize, viz. For Sale ; but
are as all other the native Goods of the Kingdom, indif-
ferent in themfelvcs, for Sale or other ufe at the Pleafure
of the Proprietor.
4. All Goods foreign or domedick are, in their Nature,
capable to be Merchandize, that is, to be fold ; but it
follows not thence, that wherefoever they are broug^ht
into the Kingdom, they are brought as Merchandize,
and to be fold, and fhouki pay Cun:om ; for they are
transferred from Place to Place, more for other ufes than
for Sale.
5. All Goods charged with the Duty of the Ad:, muft
be propriated by a Merchant Natural born^ or Merchant
Alien, and the greater or lefs Duty is to be paid, as the
Proprietor is an Alien or Native Merchant; but wrecked
Goods are not the Goods of any Merchant Natural horn.,
Alien or Denizen., whereby the Duty payable fhould be
either demanded, diftinguiflied,- or paid : Therefore a
Duty impoflible to be known, can be no Duty ; for Ci-
villy v^hat cannot be known to be., is as that zvbich is not.
' 6. All Goods fubjed to the Duty of Tunnage and Poun-
clage, may be forfeited by the Difobediencc and Mi (be-
haviour of the Merchant-Proprietor, or thofe tnilled by
him. As unjhipping before Payment., or lawfully iendring or
'o^Yeeingfcr., &c. But wrecked Goods cannot be import-
ed into any Creek or Place of the Realm by way of Mer-
S 2 , chan^
276 ©f mttCU. Book II.
chandize, and unfhipped to be laid on Land •, for if fo
imported and unfliipped to be laid on Land, it is no
Wreck, and therefore are not Goods forfeitable by the
Mifbehaviour of any within the A6t -, and confequendy
not Goods intended to be charged with the Duties by the
AS:.
Goods drowned or lofl: in pafTmg a Ferry, a great Ri*
ver, or an Arm of the Sea, are not to be faid to be export-
ed, though they be carried to Sea •, but Goods exported
are fuch as are conveyed to Sea in Ships or other Naval
Carriages of Man's Artifice ; and by like Reafon, Goods
imported muft not be Goods imported by the Wind,
Water, or fuch inanimate Means, but in Ships, VefTels,
and other Conveyances ufed by reafonable Agents^ fe
Merchants, Mariners, Sailors, &c. Whence it may be
concluded, that Goods or Merchandize imported withia
the Meaning of the Acl, can only be fudh as are import-
ed with Deliberation, and by reafonable Agents^ not ca-
fually and without Reafon ; and therefore wrecked
Goods are no Goods imported within the Intention of
the Adl, and confequently not to anfwer the King's
Duties ; for Goods, as Goods, cannot Offend, Forfeit,
Unlade, pay Duties, or the like, but Men whofe Goods
they are : And wrecked Goods have no Owners to do
thofe Offices, when the A6t requires they fhould be done;
therefore the A61 intended not to charge the Duty upon
fuch Goods.
Per Bolt., C. J. That Wreck ihall not pay Cuftom,
has never been made a Doubt fmce the Cafe in Vaughan^
159. of Shephard i'. GofnoU, L. Raym. o,"^^. The fame
h/Raym.^oi, Point (including Flotfajn) refolved by both Courts, viz,
5'^2. • c^ B. and then B, R. on Error brought.
The very The Admirals of England^ ut magnus Ad^nir alius An-
Words of the ^/z>, Hibemi^y Walli<£^ ac Dominiorum Cs? Infulariim earun-
L. Ho=ivard'$ 2em^ Villa Califice iS Merchiarmn ejufdem^ necnon Gafconi^t
E/:z. in Rot Aqultanla., elajfium i^ Marium dii'iorum Regnorum Jngli^
Mmir.m. 10. p'^fe^lus gensralis^ &'c, which are the words of their Fa-
tents ufed at this day, do claim all Wrecks arifing from
any of thofe Places, by virtue of their Grants.
And yet in the like Cafe, in all Circum fiances, be-
tween P^w^r and SivTVilliam PortmaUy HilL 6, PFilHam
Com, B, Rot, 143 1. where the Judge^s, and more particu-
larly
C«AP. V. SDf mtttfi, 277
larJy Juftice Trely^ ieemed to be of Opinion, that Goods
wrecked, or FJotfam, fhould pay Cuftom.
X. King Edward the Second, in the firfl: Year of his i E. 2. m. 6.
Reign, by his Charter, granted the Callle of Carishrook^ »«-^' 6.
with all the Lands and Tenements in the IJle of Wight^
formerly belonging to Ifahella Fortihus^ Countefs of AU
hemarle^ to his great Favourite Peter de Gavefton^ and
Margaret his Wife, and the Heirs of their two Bodies
begotten (together with fundry other Caftles and Lands)
and commanded Nicholas de Bofco to put him into actual
Pofleflion ; and like wife commanded Robert de Sanfon^
Keeper of the Foreft of Parkhurft in that Ifle, to be In-
tendent to them for the Farm he had granted him for
Life, for the Cuftody thereof, which being afterwards
foon refeized into the King's Hands, he granted this
Caftle with all its Services, and all his Lands in that Ifle»
to Edward his Son and his Heirs Kings of England^ and Pat. 20. E. 2I
laftenvards, for the afcertaining what did of Right belong ^- ^i^'/'^^^j
to the fame Caftle, an Inquifition went out by which it w ^'^f^[
was found, inter alia, qd^ wrechrm Maris pertinens ad
di^um Cajlrum valet per Ann. 4 s.
So that, by the general Patent of the Admiral, will lnquifit.de An:
not pafs the Wreck of this Ifie, without fpecial Words 47-^-3'«-32.
granted in the Patent.
iVi?/^, If the Wreck happened, or was occafioned by 7:^^.3. §.i./>.
reafon of any Fault or Negligence in the Mailer or Ma- l^ant. caup. St
riners, the Mailer muft make good the Lofs •, but if the ^'f^'J^j^^^'^f^'
fame was occafioned by the A6t of God, to avoid an Ene- j 26. §. 6*
my or Pirate, and the like, there he fliall be excufed. d. mand.
^da vis ma-
jor provideniiam ^' indujlriarn humanamfuperati niji culpa cfifum praceprf^i.
CHAP,
(278 )
T-tj)
CHAP. VI. ■
I. Of Goodi ard MerchandixCy ivhen
Juhjid to be <afi G<ver-hQard.
II. Of the Account rendrtd of fuch
ejcHed Goods ^ and by nvhom.
III. Of the antient Laivs of Eng-
land, in reftrcnce to juch Ejci!:!-
menti.
IV. What Goods mnfl corns Into the
Average, and ^ivhat are extfnpt.
'^ihe Defription ^Average.
V. V;e Mafier difchargcd by fuch
ASiSf by the Common Lavj.
VI. The Shifts Gear or Apparel^
nvhether 'within the Average.
VI I. 'The rendue of the Goods nvhere
tacit I-/ ohlized to avfvjcr the Ave-
'■'J
'J'
ra
g-
VII i. Of Goods remajni7?g r,n f:Kt"
board,fpo^lcd by rectjoii of toe ejtdl-
ina of others, ^ixh&re fu'^]cfl to the
Average.
IX . IVhire Ship and Lading are both
made liable to the Average,
X. Of Misfortunes not fuhject to aM
Average. ..j
X I . Where the remmnder of the doocd
are exempted from the Aver?w,
and the Damage of the
Goods falls on the Mafier.
X i I . Damage to th£ Ship^ niohereiii
Lading contribules, and the JIom.
dard Kate in Contributions.
X U 1 . 7he Majltr becomes a Captive
for the Redemi>tion of Ship ani
Ladings lukere liable to the Ay&
rage, and nx)here difcharged. y^^
XIV. What Goods are fuhjed tarn
Avcrae,e.
XV. Contribution for Pilotage, taiA
ijohere the remaining Goods, tuft
fnhjet^ to Avera^^e. ,•
X V' 1. R ules general for fettling tf>e
Average. '
XVII. Three Sorts of G-jods taken
at Sea, \
Leg.Rhod, de I. O K I P S being freighted and at Sea, are often fubt
Jaci, . ^ \q^ j-q Storrr.s and orher Accidents, in which, b^
the antient Laws and Cuftcms of the Sea, in extrerne Ne^
Braaonjih.z, ceffi'.)\ the Goods ^ Wares ^ Guns., or whatfoever elfe fhall be
foL^\,h,n.i. thought//, may in fuch Extremity be flung over-board ;
but then the Mailer ought to confult with his Mariners,
who if they confent not, and yet the Storm and Dan-
ger continues -, the Mailer may command notwithftand-
ing, the calling over-board what he fliall judge moft
fitcing for the common Safety of the red. So likewife
Goods coming from infedled Towns or Places may be
vcr-board \ and if -an Adion be brought at Coyn-
mofi
Q
Chap.vi. ©f ^fterages ana €ontvibutiom. ^yg
jiwn Law^ the Defendant may juftify the fame by plead- 49^.3/5/. 15.
ino- the fpecial Matter.
If there be a Super-Cargo^ a Rcquefl ought to be made Leg. Oieron,
to him to begin firil ; but if he refufes, the Mariners ^^P- 8-
may proceed.
II. If the Ship fo fortunes as to out- weather the Storm, Le? ConjJat.
and in Safety arrives at her Port of Difcharge, the Mailer, M Mere.
and mofl of the Crew, mull fwear that the Goods were
cad over for no other Caufe but purely for the Safely of L&g.Wifcitvf,
the Ship and Lading, The Cuitom of clearing of that ^^rt. 38, 39.
Point, varies according to the ftveral Countries or Places
they arrive at.
Where Goods are laden above the Overlopc^ or for-
bidden Goods be tranfported ; if fuch Goods happ^e'n
to be the Caufe of any Danger or Damage, the Mafter
ihall bear the Lofs ; alfo he may be profecuted Crimi-
nally.
III. King William the Conqueror^ and Henry the Firfi^ LcgesGuUei.il
made and ratified this Law concerning Goods cafl over- ^^-i-^-Q^*
ijiTv/r' . o -T-* c ^ ' de pa fits ad le-
board by Marmers m a Storm, m Imitation 01 the anti- ^JfiRhodiam,
ent Rhodian Lazv^ De ja5f.
Si ergo jecero res tuas de Navi ch metnm mortis^ de hoc Se/den ad
W* potes me implicit are ^ nam licet alteri 'daninurd infer re ^f'^^''i^""^'r.
mmemn mortis quanao penculum evader e non potejt. ^^ igaium /.i8^,
fide hoc 7ne mefces^ qa^ ob me turn mortis nil fecijje de comef ihelockde
pricrari. Et ea qiLe in navi rejtant dividantur in communi Pfif- Anglo-
kourJum cat alia. ^ fi aids jecerit cat alia extra navim 7T^ ^fg^o^^^*
1 - •-« ■'. ^ n-. . f'^t. 167.
q^iianao neccjjitas non exegerit^ ea rejtttuat. '' '
IV. The Ship arriving in fafety, the remainder muil
come into the Average^ not only thofe Goods which ^^<?- ^- ^ 2.
payi Freight, but all thofe that have obtained Safety and ''^%' q^J^^
J^R-fcrvation by fuch Ejeclion -, even Money, Jewels an4 '^
Clothes, and fuch like, are not exempted.
-But thofe things v^hich are borne upon a Man's Body,
Vicluals, and thedike, put on Ship-board to be fpent, are
totally excluded from the Contributiqn.
. The Mafter ought -to be careful, that only thofe things l^Z-^^^fiicenj,
oU\it leaf. Value and greatefi Weight be ilung over-board. ^'^' ''''* ^'•
ivixi the rating of Goods by way of Contribution, this Johames La-
OrtJer.is obferved : If they chance to be caft over-board "''"''' ^2.
before half the Voyage be performed, then they are to ^ g_ 'Ja'^
be efteemed at the Price they cod j if after, then at the tyihutk
S 4 Pi- ice
utianSi
1
28o 3©f aterasciS ana Contrfbuttong* Book h. jc
Price^as the reft, or the like, (hall be fold at the Place of
Difcharge. ;:Jc
The Ferfon (whofe Goods have been cad) is to be"
careful to have the fame eftimated before the Ship do dif;.
charge, wherein the Maft'er ought to be Afiiftant.
Average, in the Merchants Law, is ufed or taken for
a certain Contribution that Meichants and others do
proportionably make towards their LoiTes who have their
Goods call into the Sea tor the Safeguard of the Ship;,
or of the Goods and Lives of them in the Ship, in the
tinne of TenipeR •, and this Contribution feemstobefo
called, becaule it is proportioned after the Rate of every
Man's Average or Goods carried. It is derived frora/the
"Word Averia^ Cattle, ^r^^r
2 Ro/Ie'i'Rer. Goods are ill ipp'd in Eno-Jand., and a Tempeft arifetlv I
498. Caps'v, the Pairenp;ers, for fivins; their Lives, caft them over-!
umer. board, and another Ev.glijh Ship takes them, the pwiv-!
ers bring Ircvcr^ it lies, becaufe delivered upon the
Land.
120.^^63. It is lawful for Palfcngcrs to caft Goods over-board
2 Biiljlr. 280. Qi^i of a Ferry-boar, in Cafe of a Tempeft, for Prefer
vation of their Lives : So if the Ferryman furcharge the
Boat with Goods, the Owners of the. Goods fhall have
their Remedy againft the Ferryman in this Cafe of a Sur-
charge, but not in the other Cafe. .. .1 '•
V. As this Lav/ doth take care that this common Can
t Bulp. 280. lamity fliould be borne by all the Parties intereffed byii
Bird'v.Afioot. aeneral Contribution, fo the Cowmen Law takes noticKi
MLone^^. Qf tj-je Misfortune, and makes Provifion'to indemnifyn
the Mafter ; and .therefore if the Party, owner of fuch
ejecled Goods, fnail bring an Action againft the Mafter
.or Owners of the Veffcl, the Defendant may plead the
fpecial Matter, and the fame fiiall bar the Plaintiff. : .^
VI. But if the Ship's Gear or Apparel be loft by Storm,
leg. \.ff. de the fame is not within the Average^ but is accounted like
ixercit.uaion. unto a Workman breaking or fpoiling his Tools ; except
t.amijTcel^ in the avoiding of a Danger, as the flinging the M4
Ohron. over-board, or the flipping the Tov:-Anchor or Boat,
Goods brought fecretly in the Ship againft the Mailer
or Purfer 's Knowledge, if cjeded, no Contribution is to
be had.
VII. As
J-VII. As the Common Law looks upon the Goods and Leg. i. ^^/.
Car^^o as a Pawn or Pledge for the Freight, fo the Marine ji^^ exempt.
X/j^ looks upon them likewife as a Security for the an- foj./g^ J/"^
{^^{\r\p the Average iind Contribution., and that the Mafter cond. inde.
ought not to deliver the Goods till the Contribution is
feccfed, the fame being tacitly obliged "for the one as well
as the other. Ad Leg. Rhod. l. 2. 6"/ non confervatis,
VIM. If through the rifling of the Ship, or the calling leg. Na^is 4.
orunlightning the Sliip, any of the remaining Goods are ad Leg. Rhod,
ipoiled, either with wet or otherwife, the fame mud come ^ndrm«/s
into the Contribution for fo much as they are made r^i^^^J^^^^^
worfe.
IX. If it fiills out that a Ship entring into a Port or Leg:g. §.3,
Channel, cannot make way, and there be a lightning or adexUb,
difburdening of the Ship, then the Contribution falls two
Parts to the Lading, and one third to the Ship, except
the Ship furpafs in value the Lading, or that there is fome
bad Quality in the Ship itfelf.
But to prevent that ambiguous Queflion, if the Party
covenants that the Goods ihall be delivered at the Port L. i. verf.
covenanted and appointed, then Condition makes Law. quod con^enie
So for the Ptloih Fee and rifing of the Ship off Ground', ^^^°-^'
when therfe is no Fault in the Mailer.
X. If two Ships happen to encounter and crofs each leg, quemad-
other, and the Crew fwear their Innocency, Contribution modumpa-
muft be made by a juft Equality •, but if one perifhes, as ^^^' ^^^^'^^^^
there can be no Proportion of the Lofs, fo no Contribu- ^■^^^' ^"^'
tion. The reafon given is, for that otherwife a Skipper
might on purpofe fet an old weak Ship againfl a flrong
Ship, and by that Means hedge himfelf into a Contribu-
tion and Recompence. However, this bars not the Own- Fod. leg. 18.
ers from bringing their Adion againfl the negligent Ma- H.b.num.i^z.
iler, by which Means he may recoop himfelf in Damage, ll^-^y'^. '^^ ,:
It It happens at Sea, the Action by the Civu Lazu is jompkinsy Noy
called Legis Aquil^. Rep. 148.
If fuch a Misfortune happens in the Night at Sea, the
Party, if he will compleatly arm himfelf for his recovery,
ought to prove, that he made out Light or Fire, or
Otherways gave notice by crying cvr calling out.
*XI. If it falls out in the Ship or VcfTel, by the indifcreet luj} Semus.
Stowing or Lading thereof above the Bir^h-mark, that §• 2'j.t5 Si
fuch EjcElion happened, in that Cafe it has feeen uled by ^3- ^f h-
the ^^'''^-
J
282 SDf mtva^td anb €cntnbtrtion?f. Book m
the Marine Laws no Contribution to be made, butS
tisfadi9n is to be anfvvered by the Ship, Mafter of
Owners.
If Salt or Corn be laid loofe, or in an heap by diven
Perlbns inoneShip, without Diftindlion, and the Maftc
delivers to any of them their due Share or Quantity ; bu:
before the reft receive their Share or Meafure, the-re-
rnainirg Salt or Corn wafhes or lofes, thofe that had the
good Fortune to have their Shares, fhall enjoy it without
any Contribution to the other Partners. Lex Mercat. \\q.
Ad leg, RhoJ. XII. if to avoid the Danger of a Storm, the Mafter cuts
/eg. 2. §. Si down the Mafts and Sails, and they falling into the Sea,
Confer-vaiis. ^iXQ loft, this Damage is to be made good by Ship and
Lading fro rata : Otherwife if the Cafe happens by Storm
or other Cafualties.
No Contribution is to be paid in Cafe one Ship ftrike
^gainft another whereby Damage happens, but full Satif-
fadlion is to be anfwered the Merchant in Cafe of Fault
or Mifcarriage in either ; or an equal Divifion of the Da-
mage, in Cafe it happens by a Cafualty^ as above.
F.d^leg.Rhod. If a Lighter or Skiffs or the Ship's Boat into which part
/W. natis Qf tj^e Cargo is unladen for the lightning of the Ship, pe-
Zhad^^'"" ^^^' ^^^ ^^^ ^^'P ^^ preferved, in that Cafe Contribution
jLhodUejaau. ^s to be made ^ but if the Ship be call away, and tlie
Moor 297. Lighter, Boat, or Skiff be preferved, there no Contribu-
tion or Average is to be had, it being a Rule, No Con-
iribtition hut where the Ship arrives in Safety.
Leg. Rbdd. de XIII. If a Ship happens to be taken, and the Mafter,
jaait, 1. 2. Si to redeem the Ship and Lading out of the Enemies or Pi-
mvis a ?ira- ^^^^^^ Hands, promifes them a certain Sum gf Money^ for
Performance whereof himfelf becomes a Pledge or Op-
tive in the Cufiody of the Captor; in this Cafe, he is to
be redeemed at the Cofts and Charges of the Ship and
Lading, and Money, if there be any in her, are con-
tributary according to each Man's Intereft for his Ran-
fom.
lUof^, fol So where a Pirate takes part of the Goods to fpare the
/JJwt?" ''^^' Contribution muft be paid.
la/il^on. ^'^^^ i^ ^ Pirate takes by Violence part of the Goods, liic
reft are not fubjed to Average, unlefs the Merchant hath
made an expreJs Agreement to pay it after the Ship is
robb'd.
Bui
'j(
Chap. VI. S)i ^zvaats mti Contt^iiittttonj?. zH
I Mt if part of the Goods are taken by an Enemy, or ^rot. de in-
by Letters of Mart and Reprizal, e contra. trodjur.HolL
So likewife in Srorm, if the fame is done for Preferva- ?aL«.%^-
tion of the Remainder. • ^ Naut. in the
He may hypothecate the Ship for his own Redemp- end of chap,
tion. L. i^'^^j/^^Ws Reports 2 2. ^^'
fh Ship was taken by a French Privateer, and the Mafter Hill. 7 Annar,
of her ranfom'd her for 1800/. (the Mailer having ^ '^^ Chancery,
Share in the Ship) the Mate was carried into France^ Winur,
a$)af Hoftage for this Money. \jdxA Chancellor {-^x^^ the
Ranfom Money mud be raifed out of the firil Profits,
DOt^ithflanding any former Mortgage of the Ship; for
if there was a precedent Mortgage, what would have be-
come of the Security if the Ship had not been redeemicd :
After the Ship was redeemed fiie performiCd her intended
Voyage, and the Freight-Money earned after her Re-
demption was the firfl Profits arifing, and cut of thefe.
the Ranfom-Money is to be fatisfied. This was upon
Motion. The Lord Chancellor faid, the Infurers always
paid part of the Ranfom-Money.
;XIV. In Ejedlmient the Mailer or Purfer of the Ship
flmjl contribute for the Prefervation^of the Ship, and alfo
thePalfengers for fuch Wares as they have in the Ship, be
it Pearls, precious ^tones, and fuch like •, and Paffengers
tiiar have no Wares or Goods in the Ship, yet in regard
they are a burden ta the Ship, Eilimate is to be made of
his and their Apparel, Rings, and Jewels, towards a
Contribution of the Lofs ; and generally all things in the
Ship, except the Victualling and Provifions of the Ship,
and the Bodies of Men (unlcfs Servants) mull bear a
proportionable Share in the Contribution.
The Eftimate being rrade of the Goods lofl and faved, Pedeusadkg,
the Price is to be fet down, not for how much they were ^^-'^^' de jaP,,
bought, but how much they might be fold for at the time-^^^g*9^> i97»
when the Eje(5l men t was made ; and if any thing be flung'
into the Sea, and endamiaged, and afterwards is reco-
vered again, yet Contribution is to be made only for the
Damage.
XV. Contribution is to be paid for the Pilot's Fee that
liath brought a Ship into a Port or Haven ibr her Safe-
guard, (it being not the Place Ihe was defigncd for) fo
tp
284 Df ^btva^es ana €cnttiimtions. BookiI
to raife her off the Ground when there is no Fault in ti,
Mafter.
Grofitis in- If a Maftcr of a Ship lets out his Ship to freight,
ifod.Jur. HoIL then receives his .Compliment, and afterwards takes „
^^d pl^keus ^^°^^ without leave of the Freighters, and a Storm
Commenta- arifes at Sea, and part of the Freighters Goods are car
ries on the over-board, the remaining Goods are not fubjedl to tht
Laws of Average, but the Mafter muft make good the Lof^out
Modes, foh of his own Purfe. 0
The Goods which are loft are to be valued, an(tthf
Goods faved are to be eftimated, which being known, a
proportionable Value is to be contributed by the (^dj
faved, towards Reparation of the Goods eje5ied^ or cad
over-board.
In which, regard is always had, not to what might be
locznus, lih. got by the Goods loft, but what the intrinfick Damage is
2. cap. 8, 9, j-^y ^i^g Yoist of the fame ; the which are not to be di-
* * mated what they might have been fold for, as what they
coft, or were bought for.
The Cuftom XVI. But now the Cuftom is general, the Goods favec
of Places va- ^^^ Jq(^ ^^j.^ eftimated according as the Goods faved were
X^of^efli-^' ^^^^ ^'^^' Freight, and other necelTary Charges, tog
mating; the firft dedu6led.
which is done Jf there were Plate, Jewels, or the like, in a Trunk,
indifferently "^h^te be a Super-Cargo^ he ought to give notice, by difco-
rocninated by vering of the fame to the Mafter or Mariners, otherwifc:
the Court. \^^ f]n^all be anfwered in the Contribution no more t|ian
flu'hfiit' ^^^ ^^^^ extrinfick Value appeared to be : But the Mu-
Je rer. divif, '"^^s ^^^ hardly fare fo well.
l3 leg. 9. §*. If Contribution ftiall be fettled, and the Merchant will
iilt.de acq. not agree, the Mafter may detain the Lading, for the
rsr. Dom. ^^,^^ j^ ^^ tacitly obliged to anfwer that as the Freights
and if at the Common Law the Merchant fliouki bring an
Adion, the Defendant Ihall bar him by pleading the fpe
cial Matter.
ff. ihid. leg. If Goods are caft over- board, and afterwards are re-
r^m? ^''""^ covered. Contribution ceafes ; faving for fo much as they
are damnified and made worfe by reafon of fuch Ejec:-
ment.
Leg 25. D. dt js^^f Q^Q^g ^^^ over-board to lighten the Ship, make
prob. leg. fat- T\ 1,-, r> 7 °
fus ^.Sijad- "0 Derelict, ^ Lo, lO'j, i?. . .
umD.deJurt. -f*"^
to
Chap. VI. ©f gfietagCjS anb €onttihutiom. 285
^nd though fuch NecefTity feems to fubje6t the Lading
Ejectment, to prevent the Ruin and Deftruclion of the
Perfons, yet fome Lading feems excepted, and therefore
Cannon, and other Inftruments or Provifions conftgned to Bacon'^ Max,
^gligyi'aCily, ought not to be flung over-board 5 for mf°^\^7'P^i'^'i-'
fucb Cafe the Law impofeth on every Subjed:, that he J'^.'^^^a '^'"
prefer the urgent Service of his Prince, before the Safety rempublkam.
of his Life.
XVII. Goods taken upon the Sea, are of three Sorts.
1. Goods taken by Letters of Mart, by jus Reprifaliarum,
2. Taken from Pirates or Sea Rovers •, And 3. From
profeffed Enemies. Thofe Goods that are taken from
Pirates, are efteemed to be the juft Prize or Prey to any
Taker of them,- fo that an Account be given of them to
the Admiral. If a Ship or Goods be taken from a profelTed
Enemy, it is to be proceeded in according to the Autho-
rity whereby it was taken. But if a Ship or Goods
te taken by a profeiTed Enemy, and afterwards they arQ
taken from him, and the fame Owner claims them, they
ought to be rcflored to him ; for the Law looks upon
thefe Goods as received, not taken, yet with fome Re-
compence for them.
By an Ad 13 G. 2. c. 4. If a Ship be retaken by a
Man of War, the Ov/ners are to pay one Eighth of the
Value of the Ship and Cargo, in lieu ^f Salvage : If by
a Privateer or other Ship they are intituled to one Eighth,
in Cafe fuch Ship hath been in PofTeffion of the Enemy
24 Hours : If above 24 Hours and under 48 one fifth
Part : If above 48 Hours and under ^6 one Third : If
above 96 Hours they are intituled to a Moiety thereof.
By the faid Ad Privateers have the fole Property of
't^at they take from the Enemy, being firfl: adjudged
lawful Prize in any of His Majefty's Courts of Admiralty ;
as alfo 5 /. for every Man on Board every Ship of War
or Privateer, taken, funk, burnt, or other wife defliroyed,
who was living at the Beginning of the Engagement be-
tween them. And by a Proclamation ifTued in Purfu-
ance of this Ad, dated 19 June 1740, 'tis direded that
the neat Produce of all Prizes, and the like Bounty
Money for Prifoners taken by any of His Majefty's
Ships, be divided into eight equal Parts, whereof the
Captain gr Captains of any of His Majefty's Ships of
War,
i.^
SDf SiUrast& ana €ontrimtiom. Book ii!
War, who Ihall be aflually on Board at the takino
fliall have three Eights ; but if fuch Ship be under
the Command of a Flag, and the Flag OfBcer be.
ing adlually on Board, or direding and affifling in thj
Capture, he is to have one of the faid three Eighths.
Captains of Marines, and Land Forces, Sea Lieute-l
nants and Mailers on Board one Eighth. ' |
Lieutenants and Quarter- Mailers of Marines and
Lieutenants, Enfigns and Quarter-Mafters of Land
Forces, Boatfwain, Gunner, Purfer, Carpenter, Matter?
Mate, Chlrurgeons, and Chaplain one Eighth.
Midihipmen, Carpenter's Mates, Boatfwain's Mates
'Gunner's Mates, Mailer at Arms, Corporals, Yeomen
of the Sheets, Coxfwain, Quarter- Mailer, Quarter- Ma-
iter's Mates, Chirurgeon's Mates, Yeomen of the Powder
Room, and Serjeants of Marines or Land Forces one
Eighth.
Trumpeters, Quarter- Gunners, Carpenter's Crew-,
Steward, Cook, Armourer, Steward's Mate, Cook's
Mate, Gunfmith, Cooper, Swabber, ordinary Trumpe-
ter, Barber, able Seamen, ordinary Seamen and Marine
or other Soldiers two Eighths.
If any CommilTion or Warrant Officer be not on board
at the Time of the Capture, his Share to be call into the
Shares allowed the Trumpeter, ^c.
In Cafe any Perfon have more Offices than one, he is
to have no more than what Ihall belong to his fuperior
Commiffion. ^
j
CHAP.
( 287 )
CHAP. VII,
\;Marances^ hynjjho??iJirJi introduced.
II. Ajfurancesy the Nature of them.
III. Hovj ejieemedofby La^w.
IV. Vh various Ways of enfuring^
and on Rvhat.
'^.•AJfurance, nvhen ejleemed tnoji
dangerous y and of fraudulent Po-
licies.
yi. Of the Receipt of ^rtmio, and
the Cufiom of Abatement on Loffes.
VII. Policies, iJmt no^v enfure
a^ainJI all the Accidents of Jtiea-
wn and Earth.
Vlil. A Ship enfure d generally ^
nuhether the fame includes the
Cargo, and ^whether it is necefjary
injhe Policy to mention the parti-
cular Goods.
Ia'. Xlafes upon Affurances.
X. When the Policy is difcharged hy
Deviation,
XI. Goods enfured in one Ship^ ^re
after^.vards in the Voyage put into
anothery the fecond ?nifcarries ,
'whether the Afiirers are made
liable.
XII. A Man enfure s more than the
Value of the CargOy the Cufom in
fuch a Cafe tvhen ufurious,
XIII. A Ship is infured from one
Port to anothery and there to be
landed ; the Cargo after Ar ritual
ii foldy and before landed is burnt y
nvhether the Afjurers pall be made
anfiverable.
XIV. A Ship infured from one Port
to (bisnk) being in Time of War
taken y <vjh ether the Affurers fpall
anfn.ver.
XV. Of the Afar ed''s renouncing af-
ter a Lofs y and nvhat Operation
the fame has by Cufiom.
T. TT is conceived by Suetonius^ that Claudius CcefarY7SLB In ruita Claud.
X the firll that brought in this Cuftom of JJJurance, by c^Jar.Uh. 25.
which the Danger and Adventure of Voyages is divid- ^^^' ^^*
ed, repaired and born -by many Perfons, who for a cer-
tain Sum, by the Spaniards called Premio., afiiire Ships or
Goods, or both, or a Proportion, according as the Policy
is*. ' *Leg-l.ff.qui
II. By 43 Eliz. c. II. An Office of JJfurance mzs QroLlih. 2.
creeled for deciding of Differences arifing upon Policies cap. 12. §. 3.
of AJjurance in London ; and a Court was to be held for
that Purpofe," by Virtue of a (landing Commiirion iffued
out by the Lord Chancellor to the Court of Admiralty,
the Recorder of London^ two Doflors of the Civil Law,
two Common Lawyers, and eight Merchants *, w^hich
Vonimidioners were to meet weekly, and to have Power'
to
288 !©| PollCUS Cf Murance^ Book II.
to fummon and examine Witnefles, and hear and deter,
mine all Caufes in a fummary Way, fubjed to appeah,
the Lord Chancellor, (yc. And by Stat. i4C^r. H. J<
25. feveral additional Privileges were granted to this
Court, which was a Court of Equity, as well as of Law;
but now there is rlo fuch Court in Being, and Caufes of
this Nature are tryed in the ordinary Courts.
By 6 Geo. I. r. 18. His Majefty was empowered to
grant two Charters for AfTurance of Ships and Merchan-
dize, &c, and to incorporate the Adventurers, in Con-
\ fideration of a large Sum of Money by them to be ad-
vanced.
2 Le-vhz. 1 5 3. IW.Indehitat. AJfumpfit pro p^'csmio -, upon a Policy of Jf
Foivlk 'u. Pin- ji^y^yi(-Q upon fuch a Ship, the Defendant demurred fpeci-
•^''' ^* ally becaufe he did not fliew the Confideration certainly
what the Premium was, or how it became due, [edm
allocat^ for it is as good as Indehitat. pro quodam Saliir%
which hath been adjudged good.
If the Perfon whofe Name is ufed in the AJurance^ be
in Time of War taken to be no Friend to the State, there
is danger to pay the Ajjurance \ if after the Subfcription
of the AfTurer, the Goods fliould be arreiled and made
forfeited, to anfwer the fame to the Prince, as it often
happens.
Lex Mcnat, If Goods are fboln or embezzeled on Shipboard, the
loy- Mafter, - not the Aillirer is refponfible. So if the Goods
be loft in default of the Pilot.
AfTurance for Policy of Ajjurance to warrant a Ship for twelve Months ;
12 Months, the Ship did not periOi within the time of twelve Months,
V° ^ being accounted according to the Months o^ January., Ft-
hruary^ &c. but within twelve Months reckoning twenty
eight Days to the Month, refolved that the Policy was
not forfeited \ cited in Sir IVoollafion Dit^ey^s Cafe i Um.
IV. A£urances are of various forts, fome being to places
le^. 4. 5. Z). certain, others general : Thofe that are made to places
deNaut./an. certain, are commonly upon Goods laden or to be laden
aboard outward, and until the fame Adventure Ihall be
laid afhore at fuch a Port.
Or upon Goods laden or to be laden homeward in fucn
a Ship till the Adventure iliall likewife be landed.
'Or
Chap. VII. M ^olicte^ Of Muvmtt. ^^
'drcKc upon Goods out and in, with liberty to touch at Johannes Loci-
gll Ports as are mentioned in the PoHcy. '^'''l' ^^^- ^- 5*
" So likewife en Ships that go trading Voyages, as round * ^*
to Cadiz ; and that it iliall be lawful after the Ship's deli-
very there, to take in at the fume Port another CargoJ,
anii with that proceed to the PFeft-hdies or othtv p3,vt5
and back again to Cadiz, and from thence to London % this
j Policy being general and dangerous, feldom procures fub-
fcriptions, or at leaft very chargeable ones.
As Goods and Merchandize are commonly enfured, fo Sautor.p. 5."
likewifeare the Ships Tackle and Furniture; but in re- r.iun. i^.feq.
aard there feldom happens a Voyage but fomewhat is 43-/^f-
mifTing or lofb, the Fr'cniio Qommonly runs higher than
for Merchandize.
Ajftirances may be made on Goods fent by Land, fo Lip 'ver Sedg-
jikewife on Hoys, and the like, and may be made on the ^^i^:^* Mkh.^
heads of Men ; as if a Man is going for the Streights^ and ^^^''*^' ^* ^*
perhaps is in fome fear that he may be taken by the Moors
or furkijh Pirates, and fo made a Slave, for the Redemp-
.tion of whom a ranfom mud be paid, he may advance a
"Premio accordingly upon a Policy of Ajjurance j and if
there be a Caption, the Aflurer mud anfwer the Ranfom
that is fecured to be paid on the Policy.
V. Thofe JJjurances are moil dangerous v^hen there
are thefe words inferted, loft or not loft ; which is commonly
done when a Ship hath been long mifling, and no Tidings
can be had, the Premio (cfpecialiy in time ot War) will
run very high, fometimes 30 or 40 per Cent, and though
it happens at the time that the fubfcription is made, the
Ship is caft away, yet the AlTurers mud anfwer.
Bat if the Party that caufed the AJfurance to be made, LodnlmM-^-
Taw the Ship wreckr, or had certain Intelligence, fuch ^^/'•5-i9'io-
fubfcription will not oblige, the fame being accounted a j^thur Stock-
meer fraud. den's Cafe,
Solikewife if the Afilired, having a rotten Ve {Tel, fhall i'^^^f^^- 26 Car.
aflfure upon the fame more than fhe is worth, and after- \l^^^^'^^^
wards give order that going out of the Port, fhe lliould convidedb/
be funk or wreckt, this will be fraudulent, and not oblige information
the Affurers to anfwer. ''^^ ^^^ ^^^^^^
A Merchant ^laving a doubtful Account of his Ship, in- 2. P. M^illiams
furesher, without acquainting the Infurers of her Danger ; ^7^-
Chancery relieved againil the Policy of this fraudulent In-'
furance. T I^
290 ^ £)f ^Olkit^ of Mtttance* Book II.
In the Year 1678. one Nownham Perkins and ^ioaku
were Owners of a Veflel called the May-Flower Ketch, the
Veflel coming laden with Wines on the account of hfr-
hrajfe and Stone^ to the IJle of Wight •, Perkins being then
; in the fame Place, contrives with one Ivy the Mailer to
fell the Freighters Goods privately, and that being effc^.
ed to go out to Sea fome fmall diftance from the Ifle, and
there privately fmk the Veflel, and pretend fhe ftruck,
and then foundred by the Extremity of Weather. The
Plot being laid, Perkins haftens up to London^ and makcsa
Policy diAjJiirance on the Veflel ; which being done, re-
mits his Orders to Ivy to put in Execution the contrivance,
who accordingly, the Goods, or the befl: of them, bei/ig
difpofed of, fl:ands out to Sea, and then with his oij^fii
Hands, by the Force of an Iron Crow, makes a hole ii^tbe
Hold, and then in his long Boat (the Crew perceiving the
Veflel to be finking) conveys himfelfand Mariners afhore/,
Ivy remits up advice of the lofs, and Perkins (as if he had
never known any thing of the Matter) demands the Mo-
nies afllired with great Confidence, and thereupon bringi
an Aclion for the fame ; but before the Caufe came to a
Hill 32. Car. Tryal, Fierhrajfe and Stone bring Trover againft P^r%»
2. B. R. and thereupon the whole Pradice^came out, and a ter-
dicl was had againft the Defendant, wnth this further,
That if Perkins would proceed on his Actions on the Af-
furance, he muft exped that this pra6lice and fraud gf his,
would totally poifon his JJfurance^ and thereupon being
well advifed, never proceeded.
L. Raymond, The Infurance was againft the Barretry of the Mailer;
<349' the Breach afljgned was, that the Ship was loft by the
Fraud and Negled of the Mafter ; this is well enough;
it is the Meaning of the Words of the Policy ; it is not
neceflfary to ufe the very Words.
Ibid. 840. The Government laid an Embargo, feized a Ship, and
converted her to a Fire-fliip -, the Infurers are liable.
Uid, Holt C, J, In Cafes of Deviation, the Infurers are liable
s for Damages before the Deviation •, and from the Time
gf the Deviation they are difcharged.
VI. Befidcs the two Corporations before- mention'd^
there are feveral Offices near the Royal- Ex change for the
ftflfuring Ships and Merchandize, where many of the moft
Eminent Merchants bv their Subfcriptions fubjed then)-
felves
Chap. VII. M polim0 Of Muvmtt 291
felves to the Payment each of a Sum certain, as 100 /. or
jnore, at the Premio then current, which in the Policy is
faid to be received, tho' it may be not adlually paid : There
ufed to be a Claufe to dedudl 10 per Cent, in Cafe of Lofs,
andfix/>^r Cent, more was cuilomarily abated on Account
of prompt Payment. So that the aflured received but 84 /.
w Cent, But of late it is become much more frequent to
ftipulate for an Abatement of two per Cent, only, in which
Cafe there is a proportional Advance of the Premio.
If an Afiurer pays his Money, believing the Ship io
be loft when it is nor, he may bring an AJfumpfit for the
Money. Cited to be adjudged, Salk. 22. />/. 2.
VII. The Policies now adays are fo large, that almod all
thofe curious Queftions that former Ages, and the Civili-
ans according to the Law Marine, nayand the common
Lawyers too, have controverted, are now out of debate ; ^^^ ^^'^ ^''^ /*^*
fcarce any misfortune that can happen, or provifion to be ^^^ ^abtofUum
made, but the fame is taken care for in the Policies that^^^^^^^^^y-^^^^
are now ufed ; for they enfure againft Heaven and Earth, njip'ublkoperU
ftrefs of Weather, Storms, Enemies^ Pirates, Rovers, ^c. ^«^^ #«^- ■^'"^-
or whatfoever detriment fliall happen * or come to the g'^^'f^p^'^^
thing enlured, <5c. is provided ror. ' p^j.^^ fi'fccpto
in fe damno,Ji
mtiuidfer Umpeftatei accidijffet^ Livlus, lib. t^. cap. 25. /^/dV Zefius In Commentario
ad digefia tit. pro Socio ^ num. 2^.
* ^ub nomine periculi, de quo fit catttiOy comprehenditur omnis cafus qui acddlt in mart,
a tempefiat£y ab hoftibus^ pr^donibus, reprifaliii^ ut <vocant arrejlis aliifque modis ufitatis
kS inufitatii citra fraudem ^ ciilpam contrahentiumy aut domini mercium njel navis. Gro-
tias de Jure HolL part. 24.
But a Policy againft Reftraint of Princes, will not ex- 2 Fern. 176.
tend to Pradices againfl the Laws of Countries, to a Sei-
zure for not paying Cuftom and the like.
A Man lent Money on a Bottomry-Bond, and infjred
the fame Money on the Ship ; jQie out-lived the Time in
v^hich die Bond came due, and then was loft ; he reco-
I Vers on the Bond •, Chancery would not fuffer to recover Egu.Jlr.'tyi,
' on the Policy alfo, but decreed it to be delivered up. and 2 Fn;:.
But where the Infurance was larger as to the Voyage, 269.
than the Bottomry-Bond, and the Ship was loft, Chan- oFem.yir^
eery would not intermeddle. • ^
Where the AfluVance is Intereft or no Intereft, what
Chancery will do, See 2 Fcrnon 716.
T 2 • VIIL If
^
i
92 M I^OltCieSi of Mmantt. Book tf
Locintus, lib. VIII. If a Merchant enfures fuch a Ship generally, anc
2. ^«>. 5.,§. 7. jj^ |-]^e Policy it is exprelTed of fuch a Burthen, the Ship
^' * happens then to be laden and after mifcarries, the Enfu-
rer (liall not anfwer for the Goods, but only for the Ship,
It matters not in the Policy whether the particukl
Wares and Goods are named, but generally upon the
Principal Wares, and all other Commodities laden or to
be laden for the Enfured, or for his Account, or for any
other.
IX. If a Ship be Enfured from the Port of London to
Cadiz, and before the Ship breaks Ground, takes Fire,
and is burnt, the Aflurers in fuch a cafe fhall not anfwer,
for the Adventure begun not till the Ship was gone from
the Port of London •, but if the Words had been, atcni
from the Port of London, there they would upon fucn a
misfortune have been made liable.
h-ote. The jf ^^^}^ ^j^ Affurance had been from London to CadiZs and
^•^«%xtends' ^^ ^^^^P ^^^^ broke Ground, and afterwards been driven
from the iVor//^ by Storm to the Port o^ London, and there had took Fire,
Fore land in the. the Eufurcrs muft have anfwered ; for the very breaking
Iile of Thanet, ^f Ground fi'om the Pqrt of London was an Inception ot
over in a Line 1 it '^
to the A^.y-. in the Voyage.
Efex, and On the Other hand, if a Man at Cadiz enfures a Saip
from thence from thence to London, if a lofs happens, the Aflurer, :;
to London- j^^ comes iuto England, (hall anfwer by the Common La'^\
Bridee, Rot. u , ^ ^ \ ^ ^ c ^ r • ■ J
Scaaar.'iQ. ^^^ though tuc placc whcre the Subicription was mau.,
Car. 2. and the Premio given was in a Foreign Country, yet thai
is not material, for the Action that is brought is ground-
7 H. 6. 14.. tn ^^ Q^ ^YiQ Prcmife, which is tranfitory,* and not local, ,■■.
"c^^z! Tryal ^^ ^^ ^'^^ adjudged where the Defendant in confk.--
54.. ' ' of I o /. had enfured, that if the Plaintiff's Ship and Gcoo
34 H. 8. tit. did not come fafe to London, he would pay 100/. afic:-
Wh i wards the Ship was robb'd on the Sea, and in an Ate.
'I'.EI:!* brought for the 100/. the Plaintiff had Judgment, not-
withflanding the Robbery or Lofs V7as on the main fe
and the Subfcrlption out of the Realm.
SalL 444. X. If after a Policy o^ Affurance, a damage happens, anc
^cixttm^l^t' ^^^c^^^^^^s ^^ f'^'^ ^^^e Voyage a Deviation ; yet the In-
.,-^ c tfw. j-^^j.^^ £|^^^|| j.(,(,Qy£j. fQj, what happened before the Devia-
* That has tlon, for the Policy is difcharged fr.om the Time of ll^^'
been mucii Deviation only.
i.abtcd, and xi. If Goods are Enfured in fuch a Ship, and after-
wards
C:
Cfl A P. VII. iS>t polUit^ of Mmamt. 293
wards in the Voyage it happens flie becomes leaky and Opinions oF
crizy, and the Super- Cargo and Mailer by conient become ^^'^ ^^^^^
Freighters of another VefTel for the fafe delivery of the jv^ncfineT '
Goods ; and then after her relading, the fecond Veflel againil the
lifcarries *, the Affurers are difcharged : But if there be Affurers. Le^
thefe words, Tbe Goods laden to he tranfported and delivered ^^/^ ^^ p^''^f\
atfuch a place by the f aid Ship, or hy any other Ship or FeJ/el iii \.^ "tl^Lz.
until they he fafely landed^ then the Enfiirers mufl: anfwer §. 10.
:e- misfortune.
XII. If a Man Enfures 5000 /.worth of Goods, and he Vide Groth-
hath but 2000/, remitted, now he having enfured a real trod.Jur.Holl.
Adventure, by the Law Marine all the AfTurers mull an- fj^deed^is^
{\mpro rata, if a lofs. But by the Opinion of fome, only niore the Cu-
thofe firft Subfcribers who under- writ fo much, as the ftom of Mer-
r^ajl Adventure amounted to, are to be made liable, and chants than
the reft remitting x}^tu Fremio (lo^f. p^r C^;^/. deduded ^^'
out of the fame for their Subfcriytions) are to be dif-
charged.
Oii a Policy of Infurance on Goods by Agreement va-
laed at 600 /. and the Infured not to be obliged to prove ^ ^^^' ^
ahylntereft, the Lord Ci?/2;?r^//^r, ordered the Defendant '
to aifcQvq'r what Goods he put on board; for akhough
the Defendant OiTe red to renounce all Intereft to the In-
furers ;' yet" referred it to a Mafter to examine the Value
of tjie Goods faved, and to dedud: it out of the Value or
Slim of 600 /. at which the Goods were valued by the
4^reem€nt.
Debt upon Obligation with Condition, to pay fo much
Mopey, if a Ship returned within fix Months from Oftend
'mPlanders to London (vyhich v^as more by a Third part
than the Legal Intereft of the Money) and if fhe do not
return then the Obligation to be void : The Defeadant
pleaded that there was a corrupt Agreement betv/een him
and the Plaintiff, and that at the time of making of the
^Obligation that he fliould have no more for Intereft^ thaa
.the Law permit's, in cafe the Ship ilould ever return,
and avers thai; .the Bond was entre4 into by Covin to
.'avoid the Statute of Ufury. Per Eale^ clearly this Bond
,is:tiot v/ithin the Statute, for this is the common Way
of AfTurance, and if this were void by the Statute of U-
fury. Trade would be deftroyed, for it is a cafualty whe-
ther ever fuch Ship (hall return or not, but he agreed the
T 3 Averment
J
294 ©f lUolicte^ of afftirance. Book ii.
Averment was well taken, becaufe it difclofed the manner
of the Agreement. Hardres 418. Joy againft Kent,
To depart Adion upon the cafe, upon a Policy of AfTufanceof
wich Convoy. Qoods from London to Naples \ the Adventure was to
AMod zS°' begin in time of the Lading at London (dangers of the
3 Lev. 320. Sea only^ excepted j with this Claufe, warranted to it-
^<a/i443. part with Convoy, the Ship departed with Convoy, btit
v/as feparated from the Convoy, by flrefs of Weather,
and put into ^orhay^ and was there detained by contrary
"Winds ; afterwards the Mailer of the Ship expedingto
meet the Convoy, departed out of the Harbour, but could
not meet the Convoy, being hindred by ftrefs of Weather,
the Ship was taken by the French, Judgment p
§luef,
Sail 44^. Cafe upon a Policy, which was to infure the Willim
Galley^ in a Voyage from Bremen to the Port of London^
warranted to depart with Convoy : The cafe was, the Galley
fet fail from Bremen under Convoy of a Dutch Man of
War to the Elb, where they were joined with two other
Dutch Men of War, and feveral Dutch and Englijhy[txz\m.
^Ships, whence they failed to the ^exel, where theyfoilnd
"a Squadron of Englifi Men of War and an Admiral ; 'after
a ftay of nine Weeks, they {tt out from the Texel^ and the
Galley was feparated in a Storm, and taken by a FrM
Privateer, taken again by a Dutch Privateer, and paid
So /. Salvage, And it was ruled by Holt C. J. That the
Voyage ought to be according to Ufage, and that their
going to the £//», tho' in Fadl out of the Way, was no
Deviation ; for till after the Year 2703. there was fio
Convoy for Ships dire6tly from Bremen to London : And
. the Plaintiff had aVerdid. Bondv, Gonfalfe^ February tif
1704. coram Holt C.J, at Ni/i Prius at Guildhall,
Warranted to depart with Convoy has been refolved to
import, by the Ufage of Merchants, a Continuance with
that Convoy as long as may be. Lucas*s> Reports 287.
locin. L 2. • XIII. A Merchant Enfures his Goods from Londoni(i
And by the 'S'^^'^'^^,^nd there to be landed ; theFadlor, after arrival,
Laws of ^«/- having Opportunity, fells the Cargo aboard the fame Ship
'vjerp there is without ever unlading her, and the Buyer agrees fdr the
aftlTthe°"''^ Freight of thofe. Goods for the Port of Venice ; before flic
Ship's' arri- breaks Ground the Ship takes Fire, the AfTured and Buyer
vai at her are abfolutcly without remedy 5 for the Property of the
Port how Goods
/
:i
(^H AP. v^ii. £)f Poiicfe^ of Mmanct. 2gs
Goods becoming changed, and Freight being contra6led long the Ad-
k novo, the fame was as much as if the Goods had been venture is to
J J be born by
J^ndecl. ^ ^ tjjg Enfurers "
And fo it is if the Fadlor after her arrival had contrad- which is a- *
jjd for Freight to another Port, and the Ship had happen- bout 1 5 days,
ed to take Fire, the Affurers are hereby abfolutely dif- ^'^^- ^3- 4:/^-
^^arged for ever. ^ Cafe oTS-
XIV. If a Ship be Enfured from London to and fieur Gomdan
Jblank being left by the Lader to prevent her furpize by Governor of
Wie Enemy, in her Voyage fhe happens to be call away, ^^^^^^ ^^^''■
fthbugh there be private Inflrudlions for her Port, yet the ^^ ^*
Enfured fit down by the lofs, by reafon of the uncertainty.
So a Blank is left in the Pohcy for the value of the Ship or
Lading, if a lofs, and there be not words that may fup-
ply, the Enfured may endanger the Policy.
A taking of a Ship (that is infured) by Pirates is to Silks 1^2:
be underftood, the Perils of the Sea. ^ ^'^^' ^^^^
Where Goods are redeemed from a Pirate, contribu- ^"^ *
tion muft be paid by all, becaufe the Redemption is made
for the fafety of all ; but if the Pirate be once Mailer of
f^l, and yet take but fome fpecial Goods •, whether from
Ship or Merchant, and not as a Contentation for fparing
of the reft, in this cafe, becaufe the Remainder is not
affured thereby, but freely fpared, no Contribution is to
be made for the taken Goods to charge any AfTurer with
any part thereof. So Contribution fhall be made for
Goods fpoiled by wet, or other accident. Again if it
be needful to lighten a Ship for her eafier entry into Har-
J|y)ur or Channel, two parts of the Lofs fall upon the
IjGeods, and the third upon the Ship •, unlefs the Ship is
more worth than the Lading, and the charge of the
Goods be not the Caufe of her inability to enter, but
fome bad quality proceeding from the Ship itfelf, or
that btherwife it be provided in the Charter-party. Le:>c
Merest. 109.
XV. After notice of Lofs, the Enfured, (if he doth Lociniusy /. 2^
think fit) for that he hath Enfured the mofbof his Adven- ^' 5- §• ^•
ture, or that he would have the affiftance of the Affurers ;
when there is hope of Recovery of the Adventure, he may
then make a Renunciation of the Lading to the AfTurerSa
then he comes in himfelf in the nature of an Enfurer, for
>;V
1
296 £Df Policies of aUxttailCe. Book IJ,
fo much as fliall appear he hath born of the Adventure
beyond the Vakie enfured.
But if the Merchant fhall not renounce, yet there is a
power given in the Pohcy for him to travel, purkie, and
endeavour a Recovery (if poffible) of the Adventure after
a misfortune to which the Afliirers are to contribute, the
lame being but a trouble to give eafe to the Afifurers.
If prohibited Goods are laden aboard, and the Mtr-
chant enfures upon the general Pohcy, which always con-
tains thefe words :, Of ths Seas^ Men of War^ Fire^ Ene.
mes^ Pirates^ Rovers^ Thieves y Jellezons^ Letters cf
Ma/l^ dnd CounUrmarty Arrefls^ Reflrainments and Ds-
tainments of Kings and Princes^ and all other Perfons^ Bar^
retry of the Mafter and Mariners^ and cf all other Perils^
Lojj'eSy and MisfDrtunes vshatfoever they he^ and hcwfomr
they fhall happen to come^ to the hurt and detriment of tk
Goods and Merchandize^ or any part or parcel thereof \
whether if fuch Goods be lawfully feized as prohibited
Goods, the Enfurers ought to anfwer ? It is conceived
they ought net ; and the dilrerence hath been taken,
where Goods are lawful at the timiC of Lading to be im*
• ported into that Country, for which they are configned
sbr ; but by matter ex pcfi farro after the lading they be-
come unlawful, and after arrival are feized, there- the
AfTurers muft anfwer, by virtue of the Claufe, And all
other Perils^ &c. But if the Goods were at the time ot"
lading unlawful, and the Ladcr knew of the fame, fdch
AITurance will not oblige the Afiurers to anfwer the iois-,
for the fame is not fuch an Aflurance as the Law fup-
ports, but is a fraudulent one.
h h€( (on- A Policy was made from Cadiz to Vera Cruz in '^'^'
iraau hona Spain^ upon Monies lent upon Bottomry, and upon anv
^^lumefl^^ut ^^^^ ^^ Goods and Merchandize whatfoever loader
rMturanliro aboard the Good Ship called the Noufira Seignora ddC&r-
€iiroque obli- men and Mary Magdalen^ the Adventure beginning im-
gaiioms fofu- lyjcdiattly from the lading before a day to come, and the
/?/' -, ^!!.?"!' Monies from the tim.e they v/ere to be lent, and fo to
§ 8. ' continue fromi Cadiz to Vera Critz, and after Delivery,
with Provifo to flay at any Port or Place in her Voyage,
and likewife to touch at Porto Rico, and there to lade and
unlade without any Prejudice to the Enfurance, the Cargo
,l?eing valued at 1700/, SterL without Account, ^'^^
againft
QiAP. VII. flPf Solicits of Mmmtz. 297:
aaaioft '^'^^*^' -^^^^ ^f ^^^^^ Fires, Enemies, Pirates, Ro*
vers, 'Thieves, Jettezons, Letters of Mart and Counter mart ,
Surprizals at Sea, Arrejls, Rejiraints and Detainments of
(ill Kings, Princes, and People, of what Nation, Condition
Qf.Gjuality foever. The Ship being laden at Cadiz, did
depart towards Vera Cruz, and before arrival there,
touching at Porto Rico, the Goods were there feized and
arrefted. In an Adlion brought upon the Policy, the Houbknd'v,
Defendant came in and pleaded. That the Ship at her ^^j-pM-
arrival in her Voyage at the Port of Rico, was laden car l^'^^
with Goods and Merchandize prohibited, and the fame, y^^. /«
and alfo the Ship, did there become forfeited by Default P^M-fe^.
of the Proprietors, and was there feized and taken. The
Queftion was, if the Owners Ihould enfure, and then
order prohibited Goods to be laden, whether that an ■
Arreft upon the fame Ihould entitle them to a Recovery ?
The fecond Objedion was, If (as the Defendant had
pleaded this Plea) the fame were good ? As to the firft,
the Court did all incline, that the Enfurance ought to be
honafide^ i. e. the R«{lrarint ought to be of fuch Goods as
by, Law were not reftrainable ; but furely that cannot be,
for the Intention of Policies are to warrant the Perils of
all manner of Goods in all manner of Cafes. So that if
there be a loading l^ona fide, be it prohibited or not, the
fame in Cafe of Lofs ought to be anfwered, unlefs it were
E'ft^udulent Contrivance : But to the fecond, it was re- Like JuJg-
folved, That the Plea was infufficient -, for admitting the "^^"^ ^^^ S^"
fame Ihould not oblige the Enfurer, yet becaufe the De- YethSeradf
fendant did nd't lliew that the Goods were laden either Uouhland,
by the En fu red, or by their Fad or or Order, otherwife !/>/«. 32 c«r.
the fame fnould not conclude them ; for perhaps the Ma- ^- ^" -f * ^'
fter or his Mariners, or a Stranger, might load them on
Board without Order, fo that upon the meer InfufHciency
of the Manner of Pleading, and not of the Matter, the
Court gave Judgment for the Plaintiif.
But if a Merchant will freight out Wool, Leather* * nCar^z.
and the like, or fend out Goods in a Foreign Bottom '\, ^^p- 32-
and then make a Policy, the Ship happens afterwards to ^^ ^^^' ^*
be taken, by Reafon of which there becomes a Foifeiture f izCar.
of Ship and Lading, the Eniurers are not made fubjed cap. 18.
to anfv/er the Damage ; for the very Foundation was ille-
gal and fraudulent, and the Law iupports only ihofe Aflu-
rances
2.
298 SDf PoUckS of affUtance. Book
ranees that are made bona fide ; for if otherwife, and Men
could be enfured againft fuch Adions, they would de-
£lr,oy Trade, which is directly to thwart the Inftitution
and true Intentions of all Policies.
But if Goods fhould happen to be lawfully Enfured, and
afterwards the VeiTel becomes difabled, by reafon of
Ritterjhuf. ad which they relade by confent of the Super-Cargo or Mer.
leg. contraa, chant, into another VeiTel, and that Veflel, after arrival
^Ir ^f Ts P^^^^^ ^^ ^^^P ^^ ^^ Enemy, by reafon of which the
/"'^z 36, 237*. Ship becomes fubjed to Seizure; yet in this Cafe En-
Stypman diao furcrs fhall anfwer, for that this is fuch an Accident as is
iQQCkfium. 335. within the Intention of the Policy.
Several Men lade aboard Salt, without diftindion, not
putting them in Sacks, and the like •, the Ship arrives,
the Mafter delivers to their Principals according to their
Bills of Lading as they come one by one, it falls out that
fome of the Salt is wafh'd or loft by reafon of the Damp-
nefs of the Ship, and that the two laft Men cannot re-
ceive their Proportion. There are in this Cafe thefe
things to be confidered :
' I. Whether the Mafter is bound to deliver the exad
Quantity ?
2. Whether thofe that have received this Lofs can
charge the Affurers ?
3. Whether the AfTurerers can bring in the firft Men
for a Contribution, they having their Salt delivered
to them compleatly ?
Hill II Jac, Certainly the Mafter is not bound to deliver the exacl
in c. B. Lajl- Quantity, nor is he obliged to re-deliver the very fped-
^'P^f ^"^^^'^- fical Salt, but only as Men are to repay Money or Corn by
Hobart, ^fol ^^ diftin6tion in a Bag or Sack, and out of them \ but if
j58. ' the Fault was in not pumping, keeping dry his Deck,
Leg. quod, con- and the like, there e contra : Though perhaps there may
^enit de njerb. ^g fp^^ial Agreement.
° ' Befides, this is a Peril of the Sea which the Mafter
could not prevent, and of neceftity he muft deliver to one
firft before another.
As to the fecond. It is no Queftion but that the Affurers
fhall anfwer. But whether they ftiall bring in the firft
Men for Contribution, may be ibme doubt.
D. Leg. in It has been conceived by fome, that they ought not }
p^oMan, fQj. ^hey delivered their Salt to thc'^fvlafter tajiquam in
.^ Qredituinx
{
Chap. VII. 1D( polf Cie0 fif Muvmct 299
Creditum^ and were not to exped the redelivery oF the
jame fpecifical Salt.
But by others it has been conceived they ought to con-
tribute pro ratione \ for as Goods of neceflity, fome muft
be flowed in the Hold, and that fuch Goods feldom
cfcape the Peril of the Sea ; fo the reft muft of neceflity
contribute to that Misfortune, and fo make no Diftinc-
don.
The Bills of Lading are very ufeful to fettle the Diffe-
rence between the AfTurer and AfTured, of which there
are three Parts, one fent over Sea, the other left with the
Mailer, and the laft remaining with the Lader.
CHAP.
[ 300 ]
I,
C H A P. VIII.
il'v
I. What Prifage is, and fwhere I
taken y and of n.vhat.
II. Merchant Strangers exempted
from the fame.
III. When due, and the exemption
of the Citizens of London from
the fame.
IV. What Citizens are capable, and |
'v:here not.
V. A Foreigner imports and makes
a Citizen Executor and dies ;
^whether hefhall ha^ve the Benefit
of the Immunity.
VI. Where a foreigner fells to a Ci-
tizen before Bulk be broken^ the
■ Vendee fhall be chargeable.
VJI. Where a Grant to difcPaiji
a particular Ship fhall he good ;
and m'hers a Grant to partitMlu^
Terfons foal I be other'vjife. ^ _ ^
Will. Cy Butlerage, avhat/ ijid
nvho are exempted.
IX. Where the King becomts m^.
tuled to thofe Duties.
X. A Grant to be free of oIICmJ-
tomSf Impofitionsy &c. ' e^ittliii
no* to Prifage and Butleragft.
XI. Cinque Ports exempted frwi
Prifage.
iij
Dyer 92, 42,
165.
Fleta, 1.2. c.
2.
^alk. 617.
Hard. 477.
I, T3^{A^^ is a certain taking or purveyance for Wine
\^ to the King's ufe ; the fame is an antient Dyty
which the Kings of England have, time out of mind,
had and .received ; the manner hath been by takingj)f
every Ship or Veflel that Oiould come into this Realfh,
if ten Tuns, to have for Prifage one Tun : And if^it
contain twenty Tuns or more, to have two Tuns, {'oh,
one Tun before the Mail, and the other behind the Maftj
paying 20 s. for each Tun. This antient Immunity they
have enjoyed as a Flower of the Crown, and by fottie
has been conceived not grantable away without A6tof
Parliament. But yet in 6 E. 3. fol, 3. Cafe 15. menti-
ons the fame to be grantable over.
Such Wine maybe tailed, and the fulled Veflels may
be taken for Prifage. And if a Ship has ten Tuns, then
only one Tun is to be taken : and none if there be but
.fine Tuns.-; unlefs there be Evidence of Fraud. But if
there be nine Tuns and an half, that is Fraud apparent \
and then one Tun fhall be taken.
II. King
Chap. VIII. fBt pjtfage attn Tdutuu^z. 301
II. King Edward the Firft having laid fome Impofi-
tlons on the Merchants, which in Anno 25. of his Reign,
being taken ^away, with promife, that neither he nor
his Succeflbrs fhould do any fuch thing without Aflent
of Parliament ; in the one and thirtieth of his Reign Rot. Pari, •^i,
they granted him an increafe of Cuftoms, in lieu of ^ ^' ^^^* *'
which he granted them many Immunities, as Releafe of
Prifage ; &c.
III. Prifage is not due till^ the unlading, or that which Teh. 198.
is commonly called breaking of Bulk ; for the Words are ^^^^'^"^ '^•
J)d qualibet navi important vina^ i^ difonerant inde. King •*
Edward the Third by his Charter dated 6 Martii Anno
HegniPrimo, granted his Royal Charter of difcharge to
Ifie Mayor, Commonalty, and Citizens of London^ in
h^c verba ^ (viz.) ^od de vims Civium nulla prifa fiant^
fed perpetue inde ejfent quieti^ ^c. which was afterwards
allowed in the Exchequer.
IV. It is not every Citizen that is capable of this Pri- 4 ^' 6-
vilege, but only thole that are refident within the City : Kno^li&Q^[Q
And fo it was ruled in the Cafe of one Knowles^ who be- ^ "-^ ^' ^'
ing a Citizen and free Grocer of London., removed his
Houfhould cum pannis, and did dwell at Brijlol^ but yet
kept his Shop in London \ and a Ship of his arriving with
Mints ?it London, and beino; unladen, the Prifao;e was
aemanded ; he claimed the Benefit of difcharge. It
as adjudged, he was not capable of the fame : For he
twill claim the benefit of his difcharge ought to, be
wis ^ Jncola commorans.
By 24 //. 6. (a private A6t of Parliam.ent) Com- 3 BuIJIr. 4, 5.
plaint was made. That the Lord Mayor of London
would make Strangers Citizens *, It was there declared,
that this benefit to be difcharged from Payment of
Prifage., did not extend to fuch Citizens as were donatiy
made free, but unto thofe Citizens only which comnio-
ranty incolant^ and are refident in the City.
V. If a Foreigner brings a Ship laden with Wines, 3 Bulp. 3.
,into the Port of London^ and then makes a Citizen his
Executor and dies, he fhall not have the benefit of this
Immunity from Payment of Prifage for thefe Wines, for
, that they are not bona Civium,
VI. If a Foreigner arrives with a 'Ship laden wath 3 Buljlr, 10.
Wines at a Port with an intention to unlade, and before
the .
302 iS>t mitast attD TStttlerafie* Book it
the Goods are entred, or Bulk is broken, he fells them to
a Citizen, Prifage fhall be paid notwithflanding, for i|
was never the Intent of the King in this his Grant to dill
charge a Citizen in fuch a manner.
3 Bulftr. 10, VII. If the King does difcharge fuch a Ship of J, s^
''• being at Sea, particularly naming the fame, from the
Payment of Prifage y and he dies before the Ship arrives
no Duty can be demanded.
J^anger'sCik, g^t it has been held, if a particular Perfon has a
Ca/tbr. Rep. q^.^^ ^^ ^^^ ^^ ^^ difcharged of his Goods, and he db
3 Buljlr. I. before the arrival, the Duty fhall be paid.
I Ro. 138.
Vide the Cafe at large for the Court was divided in Opinion.
Bro. tit, dif- ^Q Warrantors were brought againft three Archbi.
claimer, foL ^^^^ ^^ York^ to fhew caufe why they demanded to havd
-Jhulfir. ir. Prtfage for Wines brought into the Port of Hull: fhc
6 Ed. 3. two lirft pleaded to have only the firft tafte, and a pre-
fol. 5, 6. emption after Prifage paid 5 but the third pleaded a
o/rt^i'fcafe. Charter of 15 E. 2. by force of which he claimed the
* fame \ and ruled not good. But though the Charter
might be good, yet it was held in that cale, a difclaimef
^ixjohn Da- by. the Predeceflbr fhould bind the Succeflbr. Note, the
^es m the Duke of Ormond in Ireland had an Inheritance in the
ftoms? "' Prifage of Wines by the King's Charter. But the fame
was forfeited. 2 G. i.
VIII. Biitlerage is a Cullom due from Merchant-
Strangers of 2 5. upon every Tun of Wine brought into
this Realm by them •, but EnglifJomen^ pay it not.
King John granted to the Merchants of Jquitain
trading for Wines thence into England^ divers Liberties,
In lilro Ruhro and amongft others, Lihertatibus conceffis Mercatoriks
in Scaccario ^i^inetariis de Ducaiu Aquitania^ reddendo Regi £s? b<£rediks
mem. Jo . j^^^ ^ ^^ j^ quoUbet dolio vini du5li per eofdem infra Regnm
Rot'charta- Anglic vel poteflatem Regis,
runyjinno^i. All Merchants Strangers in confideration of the Grant
^\\ TT ^^' ^^ ^^^"^ ^y ^^ ^^"? ^^ divers Liberties and Freedoms,
Mercatoria^ Concefferunt de quolibet dolio vini quod adducent vd addutt
See the Char- facerent infra Regnum^ &c, folvent nobis £2? hierdHui
ter at large in nofiris nomine Cujlunice duos folidos.^ &c.
S^ C^flomr ^^ ^^ ^^^^^^ Butkrage, becaufe the King*s chief Butler
, H.VT5. doth receive it. If any Perfon free of Prifage or Butkrali
2 Ed 6. 2u cwftvtni
ctfAP. VIII. of |^?ifage anD ^utUvagt. 303
cuftoms Wines of a Perfon not free of Prifage or Butle-
ra^e^ he forfeits double the Value of the Prifage of the
Wines fo cuftomed.
By SlaL I. H, S. ch. 5. Making falfe Entry to defraud
the King of Prifage and Butkrage^ infers a Forfeiture of
double the Value. And by Stat, 2. and 3 Ed. 6. ch, 22,
of the Offender's Goods and Chattels, provided the Pro-
fecution be within three Years. One Moiety to the
King, the other to the Informer.
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 nine
or four Tuns, yet the King ihall have the entire Pri-
[age ; and though the Cuftom feems to declare, that the
taking niuft he as well before as after the Mafi^ yet is not ^^«'^^^ njerfuf:
the Officer tied to that Stridlnefs but may take where ^'^T' '^f
, , r r rr^ ^ tr- \ -i r 'Verton 1 98.
he pleaies ; tor two Tuns are the King's due ; tor BoyntQn\Q2L(e,
other.wife he might be cozened, the Freighter perhaps 3Kep.44.10.
lading other Commodities aboard after the Maft.
If there be but one Tun taken out, yet the duty muft
be paid : The reafon is, for that otherwife the OfHcer
Hiould be obliged to travel perhaps all over the King-
dom.
X. The King granted to a Venetian Merchant that he
Ihoald be quit, de omnibus Cti/lurms, Suhjidiis^ & Impofi-
tionibus, & omnibus aliis denariorum ftimmis debitis iS folu-
hilibus fro quibufcimque Merchandizis import andis •, and that
hefhould be as free as the Citizens of London. In that Vouched in
cafe it was adjudged in the Exchequer., That by that Grant ^^^^^^^ ?^
the King did not difcharge him of Prifage^ becaufe the ^xfjohnDa-
Prifage was not fpecialiy expreifed in the Grant, al- «z,7Vi Reports,
though that the City of Lo?tdon were by a fpecial Charter
freed of Prifage.
ipXI. The Cinque Ports are likewife difcharged of CI. lE.i,
Prifage '^ ^ yet if a Citizen of Salisbury fhouid configa ^- 5-
Wines to be delivered and unladed at Dover^ the bare
Difcharge of the Goods at that Port will not acquit the Buljlr.zpart
Iniporter from the Duty ; for it is not the Party's Im.- ^^'' *•
portation, but his Domicil that qualifies him for the Bene-
fit of his Immunity.
^ CHAP.
[ 304 ]
C H A P. IX.
)LoDmanagc*
I. O/fhe Pilots'/ cbarge tilt the Ship
is brought to her place or bed.
II. If the Ship is likely to mif carry,
nvhat the Ships Cn^w may do at
fuch time.
III. Of ignorant Pilots their punijh-
mentj and if the Ship mifcarrieSf
nuhojhall anf-uoer.
IV. Cff Wharfage, and ivhere the
Wharfingers Jhall arfvoer, and
ivhere not,
V. Primage and Petty Lodman^
nvhere due, and for nvhat -, a>U
if the Ropes break, njohethtr tht
Majler, or Wharfinger pall m-
fiver.
VI. Petty AvsTRge ivhere due, md
for njohat, and Hat-money.
VI r. Lod manage ivhere due^ and
for nvhat.
Leg. Oleron,
tap, 21 .
I. "D Y the Laws of Oleron after that the Pilot h^th
j3 brought the Ship to fure Harbour, he is no fur-
ther bound or liable , for then the Mafter is to fee her bed
and to her lying, and bear all the reft of her Burthen,
Charge, and Danger, except that of the A61 of God : So
that before flie comes to her place or bed, and while Ihe
is under the Pilot's charge, if fhe or her Goods perilh, or
be fpoiled, the Pilot muft make good the fame.
II. By the Laws of Oleron., if his fault is notorioufly
grofs, that the Ships Crew fees an apparent Wreck, they
may then lead him to the Hatches, and ftrike off his
Head ; but the Laws of England allow no fuch hafty
Execution.
By the Laws of Denmark^ an ignorant Pilot is to pafs
thrice under the Ship's Keel.
The Mafter generally in the Charter-party covenants
to find a Pilot, and the Merchant covenants to pay him
his Pilotage.
III. But if a Ship fhould mifcarry coming up the Ri-
ver, under the charge of the Pilot, it has been a Que-
flion, whether the Mafter fliould anfwer in Cafe of the
infufficiency of the Pilot ; or whether the Merchant
may have his remedy againft both ? It hath been con-
ceived
Chap. IX. ©f ptlOtjS, mijAtta^t, &c. 305
ceived the Merchant hath his eledlion to charge either ;
and if the Mailer, then he mufl lick himfelf whole of the
Pilot. .
IV. IFharfage is Money paid for landing Wines at a it Car, i.e.
Wharf, or for iliipping or taking in Goods into a Boat "• §-21.
or Barge 5 they commonly keep Boats or Lighters of
their own for the carrying out and bringing in of Goods,
in which if a lofs or detriment happens, they may in
fome cafes be made liable.
An Adion of the Cafe grounded on the Cuftom of •
the Realm was brought againft the Defendant, Mafter
of a Wharf, for not fiife delivering of Goods, l£c.
The Cafe appeared to be thus : The Mafter unladed a
Bale of Silk into the Wharfinger's Lighter, and fent pare RanMIcver-
of his Mariners to convey it afhore ; it happened that >-f ^^'^^^^
the Goods were ftole : The Qaeftion was, Whether ^ptjf^^^'
the Wharfinger or the Mafter fhould anfwer ? Upon Car'^ln B. R.
a Trial at Guildhall before the Lord Chief Juftice Hak^
it was there ruled. That the Mafter was liable, and
not the. Wharfinger ; for till they are landed, the Ma-
iler hath them under his Power : But if Goods are to be
fent aboard, there if they mifcarry in their Paftage, the
Wharfinger muft anfwer.
V. Primage and Pe^ty-Lcdmanags is like wife due to the 32 H. S. i^,
Mafter and Mariners for the Ufe of his Cables and
Ropes to difcharge the Goods, and to the Mariners for
loading and unloading of the Ship or Vefiel *, it is com*
monly about twelve Pence per Tun.
If the Ropes break in hoifting of Goods out of the Leg. Qhron^
Ship into the Lighter or Boat, the Mafter muft anfwer <^^P- ^^'
if the Goods be damnified or loft.
But if the Ropes break at the Crane in taking them
out of the Lighter i (although till they are landed, they |
arc not out of the Mafter's CuftodyJ yet the Wharfinger
Ihall anfwer.
VI. Petty Average is another little fmall Duty which Some con-
Merchants pay to the Mafter, when they only take ceive thac the
Tunnage over and above the Freight, the which is a ^^^^,1^1^,^ in
fmall Recompence or Gratuity for the Mafter's care^ over the Bills, is
leading-, and in the Bills of Lading they are exprefted that which is
after Freight, together v/ith Primage and Average accuf- the Average
'■^^^'^^* ,,., tior. for loiles.
U The
.1
306 ©f PilOtSf, mliatfage, &c. Book
The French Ships commonly term the Gratuity Hat-
money^ and our Englijh Merchants pay it our Mafters
over the Freight ; it is fometimes more, fometjmes lefs ;
two or three Pieces.
VII. Loadfman^ is he that undertakes to bring a Ship
fafe through the Haven to the Key or Place of Dilcharge,
Houghton Ar- and if through his ignorance, negligence, or other fault,
tic. Enquiry, ^^ fuffcrcth the Ship or Merchandize to perilh, an
/fl . 27, 2 . ^£|-iQj^ lies againfl him at the Common Law *, and fo by
fome conceived he may be punillied in .the Admiralty,
but not in both.
The Hire is called Lodmanage^ the which the Pilot
receives of the Mailer for conducting the Ship up the Ri-
ver, or into the Port to her convenient Bed.
If two Ships lie in a Harbour and the Anchor of one
is feared may occafion damage to the other, after re-
queft and refufal (and there be probable caufe) the other
may take up the Anchor, and let the fame down at a
further diftance, and the fame, if oppofed or hindred
and any damage happen thereby, they are to make fiill
Per Leg. Ok- Satisfadion •, fo it is if they lay out an Anchor, and
ron, cap. 15. ncglcdt the placing of a Buoy to the Anchor, and damage
happen thereby, they are not only fubjedl to be punilhed
in the Admiralty, but likewife to render fatisfadion 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 Marine t}ie
Contribution is to be in Common, and to be equally
Ptr Leg, Oh- divided and appraifed half by half ♦, but then the Man-
ron^ cap. 14. ^^ers muft fwear there was no fault in them : For other-
wife one that hath an old rotten VefTel which he can no
ways difpofe of, may fo order the matter as to lay her in
the way of a good Ship under Sail, fo that the fame may
be anfwered in damage : But when the Contribution is
made equal, then the Contrivance will be avoided ; but
at the Common Law there can be no fuch Judgment, for
one of them mufl: be found guilty •, and if fo, he muft
anfwer the other's Damage, and for his own he may fit
dowji by the lofs.
CHAP.
[ 307 1
CHAP. X.
I Of the Antirjutty o/' Exchange by
the Hebrew Lww.
\\, Of the Antiquity of Exchange
hjthe Romans.
]II. Of ExchangCi by other Na-
tions in imitation of thofe People.
iV^^'b/* the fe'vnal forts of Ex-
chan^es, and of Cambio com-
mune.
V. 0/ Cambio realy or Exchanges
njaluefor <value.
VI. Of Cambio ficco, or dry Ex-
changes,
Vfl^jO/Cambio fiftitio, or feigned
Exchange.
VIII. Of the Exchanges ufed this
dof, and on njjhdt.
IX. Honjo Exchanges are made, and
ufnn Monies in London.
X. Moni-es paid generally ^ honx) re-
paid hy Exchange^ ho%v an A^ion
Jhall he brought for Guineas, or
Foreign Coin.
XI. Of Bills of Exchange payable
^tfingle ufance.
XII. Billi of Exchange at double or
tnble ufance, and of the cuffo-
nary ufances to certain places
from London and Amilefdam
to other places.
XIIL Of the nature of Bills of
Exchange, and howo efieemed of
iy the Laws of England.
XIV. Bills dranvn more than one,
W Prejudiee to the Parties ; and
\ 6fthe true tneafurc of judging on
\ ^'^^i h tufiom.
aV. What amounts to an accep-
tance generally, and on refufal
'where to be prot^fled. Indebitat.
Affuinpfu upon ag;^eral acceptance.
XVI. All the Draivers are made
liable ; and <whether the Party
to ijohom the Money is made pay^
able, is bound to procure an ac-
ceptance.
XVII. Proiefl, <vjhat is meant by
the feme \ and nvhere the fame
is neceffary, and ivhere not.
Protefi upon the Stat, of g ^ lo
Will. 3. cap. 17.
XV in. Bill dra-wn on tnv'o Per-
fonsy n>:here the fame is neceffary ^
and njchere not.
XIX. One FaBor fer<ves a Com-
pany ivhere a Bill of his accept-
ed by one of the Company, obliges
'the reft, and 'where not.
XX. What fjords amount to an ac-
ceptance ^ and Rvhat not.
XXI. Where a Bill may be accept-
ed for part, and nvhat mufi bi
done 'with the Bill thereupon.
XXII. When a Countermand may
legally be made, and nvhen not.
XXIII. Ho^-w the federal Parties
intereffed in a Bill of Exchange
are obliged and fettered to each
other.
XXIV. Ho'w a collateral Security
may be anrzexed to a Bill, nuhen
the time is elapfd, for non-pay^
ment.
XXV. Where the Protejl is only
neceffary to be kept, and <whei:e
that a?td the Bill mttfl both be
remitted.
XXVI. Bill loft, 'what is neceffary
for the Parties intereffed in fuch
cafe to afl.
XX VII . Of blank Endorfements,
the <validiiy of the fame.
u 2 xxviir.
3o8
£)f T5im O! (BXC\)amt. Book II
XXVIII. ^ Bill once accepted,
<whether the fame may he re-
evoked i and •whether it may be
accepted to he paid at a longer
time than is mentioned : And
<vchat Protejis are then necejfary
to he made.
XXIX. Of Bills accepted for the
honour of the Dratvery <wheu the
fame fh all ohlige.
XXX. T^he time cnfiomai-y alloived
for payment after failure of pay-
ment at the day.
XXXI. Of the Validity of fpeedy
Proiejls in relation to reco'ver
the money to be paid on the
Dra-ojer,
XXXII. Bill accepted, and before
. the day of payment the Acceptor is
. failing J luhat'^s neceffary to he
done in reference to the obtaining
better Security.
XXXIII. Bills accepted for the ho-
nour of the Dranver, inhere
turned into an ASl, and remith
by him that gi-ves honour /« th
Bill.
XXXIV. The Acceptor ready to /aj,
but the Party to ivhom madt tea.
able is dead, ijohat is neceJTary,
XXXV. Caufes general for a 'rrj;
teft, and nubere fatifaElionu tkt
deliverer difcharges all Parties.
XXXVI. Of Exchange hy «i^«^' of
Credit.
XXXVII. One pays a Bill hfort
it he due, and the Party to (it^n
the fame nvas paid, fails ^ *vJiert
he Jhall be anf^werahk to tk
Dravjer notn.vithJianding.
XXXVIII. Of Bills ajjignahkmr
according to the Cujjoms of Mtr-
chants, vjhat Operation in Eng-
land.
XXXIX. Where an Averment it
neceffary of Defendant'' s bein^ a
Merchant,
ii
!■
txod. XXX.
31.
I, 'T^ H E Exchange for Monies is of great Antiquity
JL ^s well by obfervation of the Hebrew Cuftoms,
as thofe of the Romans.
Upon the fir ft of the Month Adar^ Proclamation was
made throughout all Ifrael^ That the People fliould pro-
vide their half Shekels^ which were yearly paid towards
the Service of the Temple according to the Commandment
oi God % on the 25th of Jdar^ then they brought fdb
in the Temple, (that is, into the outward Court where
the People flood) on thefe Tables lay the lefTer Coins
which were to furnifh thofe who wanted half Shekels for
their Offerings, or that wanted lefTer pieces of Money in
Mo/es Kotfen- their payment for Oxen, Sheep^ Doves, and the Ijike,
fes, printed at which flood there in a readinefs in the fame Court to/be
Fenice, An. ^^|j f^^. Sacrifices -, but this fupply and furniihing the
People from thofe Tables was not without an Exchange for
other Money, or other things in lieu of Money, and
that upon advantage : Hence all thofe that fat at the
Tables were called chief Bankers, or Mafters of the
Exchange.
II. By the Romans it is fuppofed to be in ufe upwards
of 2Q00 Years, Monies being then elefted out of the bcft
1557. de Sic-
iis,fol. 122.
CW. 2.
iof
"■Hi
CHAP. X. Df 5eai0 of €]trc]^ange. 305
of Wetals to avoid the tedious Carriage of Merchandize
from one Country to another : So other Nations imitat- Alex, Gen^
ing the Jews and Romans^ erecftcd Mints, and coined ^'^^- ^'^- S*
Ironies, upon which the Exchange by Bills was devifed, ^^^' ^^*
not only to avoid the danger and adventure, but alfo its
troublefome and tedious Carriages.
V III. Thus Kingdoms and Countries having by their
Sovereign Authorities coined Monies, caufed them to
appoint a certain Exchange for permutation of the various
Coins of feveral Countries, without any tranfportation of
the Coin, hut giving par pro pari or vake for value, with
J a "certain allowance to be made thofe Exchangers for ac-
commodating the Merchants.
IV. As Commerce became various, fo Exchange nu-
merous ; but generally reduced to four, Cambio commune, \
Cmhio real, Cambio Jicco, and Cambio Ji5iitio,
Cambio coramune, in England was thofe that were con- Reg, Ongi
ftituted by the feveral Kings, who having received Mo- 194- Stai.^.
nies in England, would remit by Exchange the like ^'J" ^^t ^*
fiifti to be paid in another Kingdom. Edward the Third, ^ • /• •
to afcertain the Exchange, caufed Tables to be fet up
in moll of the general Marts or Ports of England, de-
daring the Values of all or mod of the foreign Coins of
thofe Countries where his Subjedls held Correfpondence
or Commerce, and v/hat allowances were to be made
for having Monies to be remitted to fuch Countries or
Kingdoms.
V. Cambio real, was when Monies were paid to the iB E. 3."
Exchanger, and Bills were drawn, without naming -^^^^ B^trm,
the fpecies ; but according to the value of the feveral
Coins, v/hlch two Offices afterwards were incorpo-
rated, and indeed was no more but upon payment of
Monies here in England to be repaid the jufl value in
Money in another Country, according to the Price
agreed upon between the Officer and Deliverer to allow
or pay for the Exchange of the Money, and the lofs of
time.
VI. Cambio ficco, or dry Exchange, is when a Mer«^
chant hath occafion for 500 /. for a certain time, and
would willingly pay intereft for the fame •, the Banker
being defirous to take more than the Statute gives, and
y?t would ^void the fame, offers the 500 /. by Exchange
U 3 . fov
3IO SDf TBlllg Of (BXtf^mC^t. Book U
ThetJfury for Caks^ whereunto the Merchant agrees *, but tk
^^^d^^Vb' Merchant having no Correfpondence there, the Banker
theJ^Lshere defires him to draw his Bill, to be paid at double or
in England, treble ufance, at Cales^ by Rohin Hood^ or John a-Noka
Vide Co. 2. (any feigned Perfon) at the Price- of Exchange then
hji'fol 506. current , accordingly the Merchant makes the B
and then the Banker pays the Monies ; which Bill the
Banker remits to fome Friend of his to get a Protell
from Cales for Non-acceptance, with the Exchange of
the Money from Calcs to London^ all which with Cods,
the Merchant is to repay to the Banker ; fometimes
they are fo confcientious as not to make above 3op^r
Cent. '•:-)■>
VII. Camhio fiEiitio^ when a Merchant hath ocafiidli
for Goods to freight out his Ship, but cannot well fpare
Money •, the Owner of the Goods tells him he muft
have ready Money ; the Buyer knowing his drift, it is
agreed, That the Seller fhall take up the Monies by ex-
change for Venice^ or any other parts ; but then the Mer-
chant mull pay for exchange, and re-exchange.
So likewifc where the Merchant is become indebted to
the Banker, they arc contented to (lay, the Merchant
paying exchange and re-exchange , the which he will mod
certainly compel him to do.
5 Cif 4 H. 7. Thefe two laft ways of grinding the Face of the gene-
^ rous Merchant was afterwards prohibited, but notwith-
llanding it was found impofTible to moderate the inequality
of Exchanges, and- to have value for value : So that at
this day it feems to be a Cold that many an honed Man
is apt to catch.
VIIL The juft and true Exchange for Monies that is
at this day ufed in England^ (by Bills) \s par pro fari^
according to value for value ; fo ds the Englijh Ex-
chanee beinp; grounded on the weight and finenefs of
our own Monies, and the weight and finenefs or the
Monies of each other Country, according to their fe-
veral Standards proportionable in their valuation, which
being truly and juftly made, afcertains and reduces the
Price of Exchange to a fum certain for the Exchange
of Monies to any Nation or Country whatfoever : As for
inftance,
If
ch ap. X. M )5im of ^xci^an^t 3 1 x
If one receives loo/. in London to pay loo/. in Exeter \
this by thtpar.
But if a Merchant receives loo /. in London to pay
100 /. at Paris^ there the Party is to examine and com-
pare the Englifb weight with the weight of France^ the
jj^nefs of the Engltjh Sterling Standard with the fine-
nefs of the French Standard ; if that at Paris and that at
^andon differ not in proportion, then the Exchange may
run at one Price, taking the Denomination according to
the Valuation of the Monies of each Country ; but if
ihey differ, the Price accordingly rifes or falls : And
the fame is eafily known by knowing and examining the
real finenefs of a French 5 s. Piece and an Englijh 5 j.
Piece, and the difference which is to be allowed for the
want of finenefs or weight, which is the Exchange ;
«od. fo proportionably for any Sums of Monies of any
Other Country, the which is called Par^ or giving value
for value.
But this Courfe of Exchange * is of latter Years abufed, * And there-
and now Monies are made a meer Merchandize, and does foJ"^ |onie are
over-rule Commodities, and Monies rife and fall in Price ^j^^t there can
according to the Plenty and Scarcity of Money. be no certain
Rate fet on
^t?ar in Exchange, to anfwer juHly the Value of the Coins of Foreign Parts, bf
reafon of the Diverfity of them, and of their intrinfick Values. Vide Sir Robert Coi-
/5«; Podhuma, fol. 306.
; IX. As Money is the common Meafure of Things be-
tween Man and Man within the Realm, fo is Exchange
between Merchant and Merchant within and without the
Realm ; the which is properly made by Bills when Mo-
ney is delivered fimply here in England^ and Bills re-
ceived for the repayment of the fame in fome other
Country, either within the Realm or without the Realm,
' at a Price certain, and agreed upon between the Mer-
chant and the Deliverer. For there is not at this Day
any peculiar or proper Money to be found in fpcie
whereupon out-land Exchanges can be grounded \ there--
fore all Foreign Coins are called imaginary.
At London d\\ Exchanges are made upon the Pound
Sterling of 20 ^. and 12 d. to the Shilling; for Germany^
i^w-Countries^ and other Places of Traffick ; and for
France upon the French Crown : For Italy^ Spainy and
U 4 lomQ
3X2 €)f XilliS of tXtl)mq,t. Book II.
feme other Places, upon the Ducat : For Florence^ y^,
nice, and other Places in the Sir eights y commonly by the
Dollar and Florin.
2 Buljl, 53, Note, in an Action on the Cafe upon a Bill of Ex-
54» change, it was faid in Vernal againft Debujte^ Special
Bail is not required in a Writ of Error by the Stat, of
3 Jac. I. cap. 8. becaufe an A6tion upon the Cafe is not
within that Stat, but only Adions of Debt ; for had this
i6, i-Crtr. 2. been aided by 3 Jac. i. there needed no provifion by the
'' ^' ^- 3- Stat, of Car. 2. 2 Keh. 234.
X. Bills drawn to be paid, are either at fight, era
time certain, fingle, double or treble ufance, and are
commonly about three, for fear of any piifcarriage.
The taking and delivering Money at fight binds the
taker up to give his Bill to pay at fight, or within feme
fhort time the like Sum after fuch a Rate the Pound,
Dollar, Ducat or Crown, as is agreed between them in
Foreign Coin, either according to the Valuation of Mo-
nies, or current Monies for Merchandize.
See what Aclion and how fhall be brought for Guineas,
Guheasy Fa- Foreign Coin, in Fope and S. Leger^s Cafe, i Lmwyicb
'''fl^''"''' 414. I L(^on. 41. rVil/balge -^g^infi Davicfge. %Cro. 536.
4iic.409. ^Bag/haw z^2i\r\^ P lay72 . iCro.Giy. Rands v. Peck, LaUh^
77, 84. Wardh Cafe.
XI. The fecond time of Payment is called Ufance \ it
is known or taken to be the Compafs of one Month, to
be computed from the date of the Bill, and that governed
..^/«. 135. according to the Cuftom of the Place where thofe Ex-
changes do run. For which Reafon in an A6lion on a
Bill of Exchange payable at Ufance, the Plaintiff muftH
Jhew what the Ufance is.
XII. The third is double or treble Ufance, two or
three Months : Sometimes there are Exchanges made
upon half Ufance.
The times of Payment do alter the Price of Exchanges
according to time. '
Ufance
:hap.
X.
ulkncefrom
tondon to
M 'Btngi of Cjccl^anse*
Middlehoroifgh
313
<;
Ufance from
Jmprdam to
<
Ufance from
London to
<;
Amfterdam
Antwerp
Bruges
Rotterdam
Lijle
Roan
Paris
Rome
Genoa
Venice
Naples
Palermo
Lucca
Seville
Lisbon
'* Florence
Venice
Leghorn
Zant
Aleppo
Lucca
And all France,
Flanders, and Hoi-
, land, is generally ac-
• counted one Month's
time from the Date
of the Bill.
And all Italy, Spain,
and Portugal, is ge- J>
)> nerally accounted two
Months from the
Date, y^.
is fometimes account-
\> ed trebleUfance from
the Date of the Bill.
The Bills
may have
a larger,
fometimes
a fliorter
time, there
is no direct
certainty,
but only
that fingle
Ufance is
a Month,
double U-
fance two
Months,
XIII. Excamhium vel Cambium, or as the Civilians
term it, Permutatio ; Billa Excambii fignifies no more -
but< 'a cuftomary Bill, folemnized by numerous con-
fent of Traders, to have a Refpe6t more than other
Bills, though of as high and as intrinfical a Value :
And thofe that give fuch Bills are called Exchangers or
Bmkers,
Though the A 61 was no more but to keep up the Life Reg, Oiig,
of Commerce, (without which it is impoSible for any/^^- '94-
Nation to flourifh) yet could not any Perfon draw fuch Jf' 2^ * "'
Bills, or return Money beyond Seas, without Licence
firft obtained of the King. But at this day any Man may
do it without being obliged to obtain fuch leave.
Where there are two joint-Traders, and one of them h,Raym.i'j^.
fubfcribes a Bill for himfelf and Partner it binds both.
A Bill drawn upon B. requiring him to pay C. fe-
ven Pounds every Month, out of the growing Sub-
fiftence
3H
0.
L. Rtiymond
Si6.
Confuetudo
quandocunque
fro lege fer-
<vaiur, faith
BraBotiy in
fartibus ubi
Juerit more
utentium ap-
f rob at a ; Ion-
ga^vienimtem-
foris ufus iff
CQTtfuetudin'is
fion eft. njilis
authoritas,
lib, I. cap. 3.
Words are
made to fig-
nify things ;
by the word
Delinjerer is
meant he that
flOf TBillsi of C]cc]^anff e, b 0 0 k u
fiilence of the Drawer, was adjudged to be no Bill
Exchange. Lucas 294. 316.
Note, There is not the fame Stridnefs requlfite in
penning of Bills current between Merchant and Merchant.
as in Deeds, i^c, Lucas 287.
There is no material Difference whether a Bill be drawn
payable to the Order of A, or to A. or Order : For upon
Acceptance, A. may maintain his Action in the one
Cafe as well as the other. Lucas 286.
XIV. Such a Bill being drawn, they commonly take
one or two more of the fame date word for word, only
this Claufe is inferted in the fecond. My firft of the fam
Date^ Perfons and Sum not being paid : And in the third,
My firfi and fecond of the fame Date, and contents not hm
paid.
The Declaration ought to aver that the fecond and
third are not paid {& vice verfa come femble) but this
may be aided by Verdidl, though ill upon a Demurrer.
The right Meafure of judging on Bills of Exchange, is
purely by the laudable Cuftom often reiterated, by which
means the fame hath obtained the force of a Law, and
not the bare and fmgle Opinion of fome half-fledged
Merchants : For Bills of Exchange are things of great
Moment as to Commerce, and are neither to be ftraincd
fo high, as that a Man Ihould not caft his eye on them,
but the fame fhall be taken to be an acceptance : Nor on
the other hand, having duly accepted them, the (lime
fhould be rafhly and unadvifedly avoided, by the (hallow
fancy of fuch nimble-pated fhufflers ; but they are foberly
judged and governed, as the fame hath generally been
approved of and adjudged of in former Ages.
XV. A Bill being remitted, the Party is to go imme-
diately to the Perfon to whom the fame is direded, and
prefent the fame in order to his acceptance ; if it be ten-
dred, and the Party fubfcribes Accepted \ or Accepted hy mt
A. B, or being in the Exchange fays, / accept the Bilk
end will pay it according to the Contents j this amounts with-
out all Controverfy to an Acceptance.
But if the fame be refufed, the Party mud then procure
a Protefl, and remit the fame to the Deliverer , who is IQ-
refort to the Drawer for Satisfaction for the principal, cofts,
and damage.
The
Chap. X. M 15X110 Ot €XCi^amt 315
Days {he Money beyond Sea. By the word Drafwer, he that writes or draws the
Bill of Exchange ; the Perfon upon whom, is called the Acceptor,
\ The Drawing a Bill of Exchange is an a6lual PrOnfiife.
lj.Ray7}2ond p,^'^.
Acceptance after the Day of Payment pafl is ufual, and
aood. L. Raymond 364. 574. So Acceptance for the
lionour of the Drawer. Idem c^j^.
Three Days of Grace are allowed upon Foreign Bills,
unlefs the third Day be Sunday or Chrijtmas-Day^ &c,
and then only two Days. Idem ^y^, 743. No fuch
Cuftom for inland Bills. Idem y^^' Goldfmiths Notes
to be received immediately. Idem 744, 757, y^^y
774'
The queftion whether a general Indehitat, Ajjumffit Hard. 48^,
will lie upon a bare acceptance of a Bill of Exchange, in 4^6.
the Argument of the Cafe of Bella/is and Hefter. By ^ '^^^'
Juftice John Powel^ a general Indehitat. Ajjumpfit does
not lie on a Bill of Exchange ; bur it ought to be a fpe-
cial Declaration upon the Cuftom of Merchants, as in the
^'dkoii Brown and London, i Levinz 298. i Mod. 285.
iKehle 695, 731, y^^^ 822. i Vent. 152. In which
Cafe, Judgment was arrefted after Verdidl as reported by
Levinz and Ventris.
In the Cafe of Bromwich and Lades ^ it was faid by the
Chief Juftice Trehy^ that Bills of Exchange were of fuch
general Ufe and Benefit, that upon an Indehitat, Af-
fump/it, a Bill of Exchange may be given in Evidence to
maintain the Action -, and by Mr Juftice Powel, that
upon a general Indehitat. Ajjumpftt., for Monies received
to the ufe of the Plaintiff, fuch Bill may be left to the
Jury to determine, whether this was for value received
or not. In this Cafe the Declaration was on the Cuftom
of Merchants, and a general Indehitat. Ajjumpfit thereon.
See the Declaration and Exceptions to it, in the faid Cafe
0^ Bellqfis ^nd Hejler^ in i Lutwych^ 1589.
By the Stat, of the 9th and loth of TFilL 3. cap. 17,
It is enaded that after the 24th of June 1698. All Bills
of Exchange drawn in, or dated *at, and from any Place
of this Kingdom of the Sum of 5 /. or upwards upon any
Perfon in London^ or any ether trading City, Town or
Place' (in which Bills, the value ftiall be exprefled'to be
receivedj
3^6 SDf 75ill0 Of €xtl)amt. Book II.
received) drawn payable at a certain time, after the Date
thereof, may after acceptance in Writing, and the expi-
ration of three Days after the fame fhall be due, be pro-
tefled by a Notary Pubh'ck, or in default of fuch Notary
Publick, by any other fubftantial Perfon of the Place be-
fore two WitnefTes ; refufal or negled being firft made of
due Payment ; which Proteft fhall be made under a Copy
of the Bill, in the form prefcribed by the Ad, and Ihall
be notified within 14 Days after, to the Party from
whom the Bills were received, who (upon producing
fuch Proteft) is to repay the faid Bills with Intereft and
. Charges from the Protefting ; for which Proteft there
fhall not be paid above 6 d. And in Default of fuch Pro-
teft, or due Notice thereof, the Perfon lb failing (hail
be liable to all Cofts, Damages and Intereft thereupon.
Provided that if any fuch Inland Bills be loft, or mif-
carry within the time limited for Payment of the fame,
the Drawer of the faid Bills fhall give'other Bills of the
fame Tenor, Security being given to indemnify him,
Sa!Li2^. ^ in Cafe the faid Bills fo loft or mifcarried be fqund
2 Mod. Caf,
So.
again.
A Writ of Error was brought on a Judgment by'
dicil in an Adion againft the Drawer of an Inland Bill of
Exchange ; and it was obje£led, that fince the Aft of
9 /F. 3. no Damages fhall be recovered againft the
Drawer upon a Bill of Exchange without a Proteft, and
therefore the Adion lies not, there being no Proteft.
But Holi C. J. The Statute never intended to deftroy
the A6lion for want of a Proteft, but only to deprive
the Party of recovering Intereft and Cofts upon an In-
land Bill againft the Drawer without Notice of Non-
payment by Proteft ; for before the Statute there was
this Difference between Foreign and Inland Bills ^of Ex-
change ; If a Bill was foreign, one could not refort to
the Drawer for Non-acceptance or Non-payment with-
out a Proteft, and reafonable Notice thereof-, but in
Cafe of an Inland Bill, there was no occafion for a Pro-
teft, but if any Prejudice happened to the Drawer by
the Non-payment of" the Drawee, and that for want of
Notice of Non-payment, which he to whom the Bill is
made ought to give, the Drawer was not liable j 9.d
the Word Damages in the StatutCj was meant only of
Damages
r
c H A P. X. ©f Tdim of (0]ccljange* 3 1 -
^images that the Party ^ is at by being longer out of his
Money by the Non-payment of the Drawee, than the
Tenor of the Bill purported, and not of Damages for
the Original Debt : And the Proteft: was ordered for the
Benefit of the Drawer ; for if any Damages accrue to the
Drawer for want of Proteft, they fhall be borne by him to
whom the Bill is made ; and if no Damages accrue to
l^iiri, then there is no Harm done him, and a Proteft is
only to give formal Notice that the Bill is not accepted,
pr accepted and not paid ; and if in fuch Cafe the Da-
mage amount to the Value of the Bill, there fhall be no
Recovery, but otherwife he ought not to lofe his Debt ;
but that ought either to appear by Evidence upon
Non JJfump/u, or by fpecial Pleading ; and the A61 is
very obfcurely and doubtfully penn'd, and we ought not
hy Conftrudion upon fuch an A61 to take away a Man's
Right. And the Judgment was affirmed per totam
Curiam,
What A6tions lie upon a Bill of Exchange, and how to
be brought, and againft whom. See Hardrefs 487! in
Scaccario, and Brown and London^ s Cafe, i Mod. 285,
I Levinz 298. and 2 KeMe 6^^. and the Cafe of Cram-
lington againft Evans and Perchal, 2 Vent. 307. L. Raym.
i75» 3^4. 574- . , /
Acceptance of a Bill of Exchange may be pleaded as
Payment in Bar of an Adlion of Account. Luc. ^y.
Where the Drawee firft accepts and then fuffers the
Bill to be protefted, he fhall pay Intereft from the Time
of the Proteft. Lucas '^j.
If a Bill be accepted, and afterwards indorfed to the
•Drawer, he may maintain an Adlion as Indorfee, in Cafe
he had Effeds enough in the Hands of the Drawee, to
anfwer the Bill : but it is otherwife where the Acceptance
was only for the Honour of the Drawer. Luc. ^y.
A. draws a Note upon a Goldfmith, and fends his Ser-
vant to receive the Money, and inveft it in Exchequer-
Bills ; the Servant gets B. to give him Money for the
Note, and then brings the Exchequer-Bills to his Mafter,
and two Days afterwards the Goldfmith fails ; it was ad-
judged that A, muft anfwer the Money to B : for the
Property of the Note was not transferred to 5, there be-
ing no Indorfement j and he could not have fued upon it ;
ic
3 1 8 M 75iW of €]cc^ange* b o o k ii.
it was only in the Nature of a Pledge or Security to him
Luc, 1 09.
A Bill was drawn on the Tork-Buildhigs Company ; one
V Bijhop^ who was their Cafliier, accepts it without writ-
ing for the Company^ or any thing to that EfFedl : An
Adion was maintained againft him in his private and fin-
gle Capacity upon this Acceptance.
XVI. If there be feveral Drawers who fubfcribe, all
are liable in cafe of a Proteft.
Nor is any If a Bill is drawn upon a Merchant in London payable
fuch thing as J.Q j^ ^^ at double Ufance, J. S. is not bound in Strid-
refpite^obr "^fs of Law to procure an acceptance, but only tender
allowed for the Bill when the Money is due : But Merchants who
Acceptance, generally have generous Spirits, will not furprize a Man,
but firft procure an Acceptance, or at leaft leave the Bill
for the Party to confider and give his anfwer, and then
give Advice of the fame, and if the Money be not paid,
then proteft.
iV<?/f, the Staf. 3 £5? 4 Jm. ch. 9. having given like
Remedy upon promifTory Notes, as upon inland Bills of
Exchange : it was refolved that an Adlion lies by a
fecond Indorfee upon a Note, whereby the Defendant
promifed to be accountable to J, S. or order for 100/.
value received. L. Ray^nond i^^6.
A Note value received de premijfts in Rofewary-km,
was adjudged a good Note within the Statute. lim
1545-
The Indorfee declared that the Defendant made his
Note in writing, by which he promifed to pay, ^c
■without faying that the Defendant figned it : This was
held good, on Demurrer. Idetn 1376, 1377. The
like of a Bill. Idem ir;4.2.
' So where the Declaration Ihewed that the Defendant
made it for himfelf and his Partner, and figned it;
whereby he promifed for himfelf and his Partner to
pay, C5?r. Idem 1484.
A Bill need not to be exprefsly averred to be drawn
according to the Cuftom of Merchants. Idem 1542.
An Adlion on a Note by which the Defendant and
another promifed jointly or fcverally, is ill. I^^^'*
i544> 1545.
XVII.
Chap. X. £)f 1i3(llj{ Of ^tCl^ange* 3^9^
XVII. A Proteft is no more but to fubjed the Drawer
to anfwer in cafe of non-acceptance, or non-payment ;
nor does the fame difcharge the Party Acceptor, if once
accepted ; for the Deliverer hath now two Remedies,
one againft the Drawer^ and the other againft the
Jcccptor.
To entide the Party to an Aclion at Law in England
aoainft the Acceptor, it matters not whether there be a
Proteft ; but to entitle the Party to a recovery againft
the Drawer beyond the Seas or elfewhere, there muft be
a Proteft before a Publick Notary.
if a Merchant hath accepted a Bill, and before
the fame becomes to be due, he proves infolvent, or at
le^ his Credit is publickly blafted, a Proteft ought
togb.
If a Merchant to whom the Bill is payable, be abfent,
fick or like to die, any Friend or Servant of his, may
caufe a Proteft to be made.
A. draws a Bill upon B. to the ufe of C. and upon non- 2 Keb, 584.
payment, C. protefts the Bill, he cannot fue A, unlefs he
gives notice that the Bill is protefted, for J. may have
Effefts of 5. in his Hands, by which he may fatisfy
himfelf, i Vent. 45.
By the Statute 3,4 A, c. 9. It is enaded, that if the
Party on whom an Inland Bill of Exchange fhall be
drawn, ftiall refufe to accept the fame by under-writing
it, the Party to whom the fame is made payable may
and fhall caufe fuch Bill to be protefted for Non-accep-
tance.
No Acceptance of fuch Inland Bill of Exchange fhall
be fufficient to charge any Perfon, unlefs the fame be
underwritten or indorfed in Writing thereupon ; and if
fuch Bill be not accepted by fuch under-writing or Indorfe-
ment, no Drawer Ihall be liable to pay any Cofts, Da-
mages or Intereft thereon, unlefs fuch Proteft be made for
non-acceptance thereof, and within fourteen Days after
fuch Proteft, the fame be fent, or Notice thereof be given
to the Party from whom fuch Bill was received or left in
writing at the Place of hi§ ufual Abode.
If fuch Bill be accepted and not paid before the Expi-
ration of three Days after the fame ftiall become due,
then no Drawer ftiall be compellable to pay any Cofts, ^
Damages
in
320 f^t MW Of €%tf)amt. BooKii
Damages, or Intereft thereon, unlefs a Protefl: beriuc
and fenr, or Notice thereof be given in manner above
mentioned : Neverthelefs, every Drawer fliall be liable r
pay Cods, Damages and Intereii, if a Proteft be madefc
non-aeceptance or non-payment and Notice thereof b
fent, given, or left as aforefaid.
Such Proteft is not neceflary unlefs the Value bcac
knowledged in fuch Bill to be received, and unleii ^k
Bill be drawn for 20 /. or upwards.
If any Perfon accepts fuch Inland Bill of Exchange
Satisfaction of a former Debt, the fame fhall be efteemcd
a compleat Payment of fuch Debt, if the Perfon accept-
ing fuch Bill for his Debt doth not take his due Courlc
to obtain Payment thereof by endeavouring to get
the fame accepted and paid, and make his. Proteft as
aforefaid.
Before this Statute the Declaration need not, ]b^
fhev/n a Proteft upon fuch Bill, though the Doip
ought to have had convenient Notice of Non-Payment.
L. Raymond 992, 993. But the Law feems to be al-
tered, as to the Proteft by this Statute.
An Inland Bill drawn to be paid out of a particular
Fund, is not a Bill of Exchange. L. Raymond 1361,
1362, 1563.
Yet, Pay to J. S. or Order 10 /. as my Quarter'-
Half-Pay by Advance^ a good Bill of Exchange.
Idem 148 1.
Terjafomm XVIII. A Bill drawn on two jointly muflhave:
in lege allcgan- jqjj^j- acceptance, otherwife it muft be protefted j but to
tur. if. de con- -i ■ -iv f ..1 - *
A-r.ni-hu, two or either or them, e contra,
aittonious r r It • • /*
indebiti. Then if the fame be accepted by one, it is purluar.:
the tenor of the Bill, and ought not to be protei;.
but in cafe of non-payment *, and in that cafe the IV
fon Acceptor is liable to an Adion, but if it beonjoi.
^alk. 126. Traders, an acceptance by one will conclude and biru
L. Raymond the Other.
'75- XIX. A Fador of the Hamhurgh, Turkey, or /rf*
Company draws a Bill on the fame, and a Member ac-
cepts the fame, this perhaps may make him liable, b'^
not another Member.
So it is if ten Merchants fhall employ a Fa6lor at ti
Canaries^ and the Fadlor draws a Bill on them all, ano
C
r
one of them accepts the Bill, and then refufes Payment ;
this will not oblige the reft.
But if there be three joint Traders for the common
Stock and Benefit of all three, and their Factor draws a
Bill on them, the Acceptance of the one will oblige the 1/^7^/^.24,25:
refidue of the Company. Sa/L 1 26.
XX. A fmall Matter amounts to an Acceptance, fo
that there be right underftanding between both Parties :
As Leave your Bill with me^ and I will accept it 5 or. Call
for it to morrow^ and it jhall he accepted ; that does oblige
as effectually by the Cuftom of Merchants, and according
to Law, as if the Party had actually fubfcribed or flgned
it (which is ufually done.)
But if a Man fhall fay, Leave your Bill with me^ / will
hok over my Accounts and Books between the Drawer and me^
and call to morrow^ and accordingly the Bill Jhall he accepted^
this Ihall not amount to a com pleat Acceptance : For this
mention of his Book and Accounts was really intended
to fee if there were effedts in his hands to anfwer, with-
out which perhaps he would not accept of the fame.
And fo it was ruled by the Lord Chief Jullice Hale at
Guildhall,
XXI. A Bill may be accepted for parr, for that the The receiving
Party upon whom the fame was drawn, had no more ^^ P^''^ °^ ^^^
Effeds in his hands; which being ufually done, there ^fJ^^'j^P^^^^
muft be a Proteft, if not for the whole Sum, yet at lead no ways wea-
for the Refidue : However, after payment of fuch part ken the Bills.
there muft be a Proteft for the Remainder, "Lrin. 10. Car,
Before the time of payment of the Bill, the Party may ^* ^^^' "^^
notwithftanding accept it, and pay it at the time of pay-
ment ; or another may accept the Bill for the Honour
of the Drawer, and if he pay it in default of the Party,
yet before payment he is bound to make a Proteft, with
a Declaration that he hath paid the fame for the Honour
of the Drawer^ whereby to receive his Money again.
XXII. Any time before the Money becomes due, the Perh^-piihU-
Drawer may countermand the payment, although the ?«//"• ^^P°fi'
Bill hath been accepted. IbfdeT^^'lr
The Countermand is ufually made before a Notary •, ^^JrZlium /iZ
but if it comes without, fo it comes under the Fatty s gu/ari, //,
li^ndj it is well enough. 474-.
X H
322 iSDf BlIIjS of €xt\)amt. Book II.
If the Bill be accepted, and the Party defires to have
the Money before it be due, and it is paid, and then
there comes a Countermand ; it hath been conceived
that it ought not to be allowed ; for as he could not en-
large the time, fo he could not fhorten it, but his Duty
is to follow his Order,
fiill payable XXIII. AJfumpftt, and declares on the Cuftom of Lj;f.
to the Bearer. do?i^ that if any Merchant or other Perfon merchandizing
Saik. 125. jj^ London^ make a Note in Writing upder his Hand,
and by this promifeth to pay any Sum of Money to it
Perfon in it named, or to the Bearer •, and if the Per-
fon in the Note named, to whom by the Note it %as
promifed to be paid, afUgn or deliver it to anothel'
Perfon for to receive the Money to his own ufe, and
he carries this to the Drawer, of the Note, and tt
quefts him to pay the Money to him, then the Perfai
that made the Note, was chargeable to pay this to the
Bearer. That the Defendant (being a Goldfmith) made
fuch a Note, by it promifing to pay a lOo /. to W. B,
or the Bearer •, and that ^F. B, delivered the Note to the
Plaintiff to receive the Money to his own ufe, in fatif-
fadlion of 100 /. due to him by the faid W. B. and that
the Plaintiff carried it, and fhewed it to the Defendant
and requefled him to pay the 100 /. which he had not
done •, by which by the Cuftom he became chargeable,
and fo promifed to pay. After Verdidl for the Plaintiff,
it was moved in Arreft of Judgment ; that this Cuftom
to pay to the Bearer was too general : For perhaps the
Goldfmith before notice by the Bearer had paid it to fV. B.
himfelf, as in truth he had •, and of fuch Opinion was the
Court, Horton verf. Cogs, 3 Levinz 299. where fee the
Pleadings.
Drawer and {a) If the Plaintiff recover againft the Drawer of a Bill
Indorfer. (though he has no Execution upon it) he ihall not after-
ul ment ^^^^^^ recover againft any of the Endorfers. See the Cafe
was reverfed ^^ ^^^ge, Claxton and Swift y 3, Mod, 86. Skinner 255.
in the Exche-
quer Chamber, becaufe the Recovery, without Execution, was no Satisfadlion.
Luthv. 878, 882, b.
L. Raymond If a Goldfmlth's Note be drawn payable to J.S, or
180, 181. Bearer, the Bearer cannot maintain an Adion for the
Money, except in the Name of 7. S.
-^ Note,
Chap. X. iS>t 75Ui& Of (Sjcc^attge* 323
jVb/^, The Drawer . is bound to the Deliverer, and
the Acceptor to the Party to whom the Bill is made
payable ; yet both are not bound to one Man, unlefs the
pfiliverer 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 Acceptor are liable till the Bill is paid.
XXIV. Therefore w^hen you bring your Adion, be S^y/es 370.
fure to draw your Declaration accordingly, and make
the fame part of the Cuftom as you fet it forth -, for if
you vary, you muft expedl to be nonfuited : And the
Party is not bound to alledge a particular Place of
Demand.
See L. Raymond 281. That the Day of Acceptance
fliall be included in the Days allowed for Payment, un-
lefs there be a Cuftom of Merchants to exclude it ; and
then that ought to be pleaded. ^ Whether fuch Cuftom.
See alfo Idem 365.
To make an Indorfer liable to an Adlion, the Indorfee
muft in convenient Time demand the Money of the Per-
fon upon whom the Bill was drawn. Uid. 443, 444.
If a Bill be returned protefted for want of payment,
the Drawer is to repay the Money and damage, or elfe
he may procure a Security, which is no more but
another Perfon of value lubfcribes the Bill, in thefe
or the like words, / here underwritten do bind wyfelf as
Principal^ decor di^'g to the Cuftom of Merchants^ for the
fum mentioned in the Bill of Exchange whereupon this Proteft
is made^ Dated ^ &c.
Now the Drawer, by virtue of this fupple mental Agree-
ment, hath as much time again to pay Monies as there
was given him in the Bill when it was firft drawn; fo
that if the Money be not paid, together with the Re-
change and Charges of the Party, the Party may recover
the fame on the Principal or Security.
XXV. Beyond the Seas the Proteft * under the No- * That is for
tary's hand is fufficient to fhew in Court, without pro- ^^ot W";^"'-
ducing the very Bill itfelf. But if a Bill in England be ^.'^ ^^^^^^^^^^
accepted, and a fpecial Aclion grounded on the Cuftom ed,
be brought againft the Acceptor, at the Trial the Party
Plaintiff muft produce the Bill accepted, and not the Pro-,
tcft j otherwife he will fail in his Adiion at that time.
X % Therefore
324 ^t %iU& Of CjCCl^ange. Book iiJ
Therefore it is fafe that a Bill once accepted be kept
and only a Proteft for non-payment be remitted ; but a
Bill prottrfted for non-acceptance muft be remitted.
XXVI. If a Bill is left with a Merchant to accept, and
' . he lofes the Bill, (or at lead it is fo miflaid, that it can*
pot be found) the Party fhall requeft the Merchant to
give him a Note for the payment according to the time
limited in the Bill of Exchange ; otherwife there mud
be two Protefls, one for not acceptance, the other for
non-payment : But if a Note is given for payment, and
there happens to be a failure, yet in that cafe there muft
be a Proted for non-payment.
Ssll iz3, XXVIL A Bill is remitted toJ.S. who owes Mo.
nies to J. D. J. S. delivers the Bill to J. D, and on the
back- fide fubfcribes his Name ; if J. D receives the
Monies, he may fill up the blank as if the Monies had
been adlually paid to J, S. This is pradifed amongft
Merchants, and by them reputed firm and good. But
BytheOpI- certainly the Common-Law looks upon this filling up of
i^^^dnY fc^^^*^^^^ ^^^^^ ^* Mzn hath once figned or fealed, to bene
Hdl.z^.Car. better than a harmlefs forgery ; but if there be either a
B R. at general or fpccial Authority to the purpofe, it may then
Guildhall. alter the Law.
Noie^ No Perfon, be it Wife or Servant, can accept
of a Bill of Exchange to bind the Mafter without a lawfcl
Authority, as a Letter of Attorney, and the like, which
mufl be under hand, unlefs that it has been formerly and
%.Vi37c. ufually done by the Wife or Servant in fuch cafe, when
the Mafter hath been out of Town, who hath approved
of the fame and anfwered payment ; It muft be ufually
done ; but one Partner may for another.
"A Servant of Sir Robert Clayton^ and Mr Alderman
Morris^ (but at that time adually gone from them)
Ihnck verfus took Up 200 Guineas of Mr Monck a Goldfmith, with-
^M^T'^^ru ^"^ ^"y Authority of his Mafters -, (but Monck d^i^M
^iCa/,2'. know that he was gone) the Monies not being paid,
IK B. R. ' Monck brouglit an Action againft Sir Robert Clayton and
Morris^ and at Guildhall it was ruled per Keeling Chief
Juftice, That they fliould anfwer •, and there was a Ver-
did for the Plaintiff. And though there were great en-
deavours to obtain a new Trial, yet it was denied, the
Court at Wefiminpr being fully fatisfied that they oyghc
to
toanfwer : For this Servant had ufed often to receive
and pay Monies for them , and thereupon they adlually
paid the Monies.
By Holt C. J. A Servant is fent to receive Money for
a Bill, he can't accept of a Note inflead of Money, with-
out the particular Diredion of his Mafter. L. Raym. 930.
A Note given in Payment, is intended to be taken
under this Condition, that it be paid in convenient Time,
iMem, S. P. ^if S. C. Eq; Abr. 375, ^j6.
\^ Nole^ That which will oblige the Mafter, will be the And though
Authority and Liberty which he ufually gives the Ser- J.^^ ^^^^
yant; therefore fuch a Power devolved, ought to be fe- o^wiTdom'^
Hured by the prudenteft way that may be : Which is gene- for Merchants
rally done by Bonds and Obligations. and others
(0 to take,
yet it oftentimes proves the Deftru6lion of many a Family. The Father puts out the
Son perhaps with no lefs than 2 or 300 /. and is himfelf become bound for his Truth
and juft Accounting, &c. The Servant is immediately trulted with his Calh, and
then he, too young to be experienced in the World, either neglefls keeping a juft
Account, or keeping that, fubjedls his Mafter's Cafh to be fpent by himfelf and thofe
who make it their fole Trade to betray fuch Youths. The Mafter finding the Con-
famption, calls his Servant to account, who, confclous of the Aft, forfakes his
Service, dares not fee his Relations, and then, as a general Confequence, falls into
Company, the which nothing but Providence can preferve from taking their wicked
Courfes. The Father is called to anfwer whatever the Servant hath fpent or im-
bezzled ; he muft with a heart full of grief fubmit to pay, befides the lofs of the
Monies advanced upon the Servant's iirft putting forth : Which fometimes proves a
great Affliftion in a Family. On the other Side, if Servants were not to be intrufled^
the Myftery could not be learnt, nor the Bufinefs difpatched ; and therefore faith
ffiuft be given : But then it were Juftice and Honefty that as a Father puts perhaps
the Child of his love to one in whom he repofes a Faith and Truft, that the Mafter
Ihould be then as a Parent, fo they lliould prevent all Occafions that might fubje^
them to temptations, and not be Over hafty in trufting them with the Cafh. Which
is the very Bait our London Gamefters catch fuch Gudgeons with.
If a Bill of Exchange by contrary Wind or other oc-
cafions be fo long on the way, that the Ufance or time
limited by the Bill be expired, and being tendred, both
acceptance and payment are denied ; Protefts for both
muft be made, and the Drawer muft anfwer the value,
rechange and damage. Rajlalfol,
XXVIII. A Bill once accepted, cannot be revoked by ^^^U. in ruhr,
the Party that accepted it, though immediately after and deconjiit.pe-
before the Bill becomes due, he hath advice the Drawer ^««« '» »^f-
i$ broke, ^°^: ^ '^^^•
quidem ff. eo-
dem CoL pe-
lt null.
0
I
326 M ^iiijs of €xci^amt^ b oo^L i
If a Bill Is not accepted to be paid at the exa£t xin
it mud be protefted ; but if accepted for a longer tujl 1
the Party to whom the Bill is made payable, muft pn
teft the fame for want of acceptance accord intr to tl
tenor ; yet he may take the acceptance offered n
withllanding. Nor can the Party if he once fubfcri
the Bill for a longer time, revoke the fame, or y,
out his Name, although it is not according to the
nor* of the Bill ; for by his acceptance he hath madi
himfelf debtor, and owns the draught made by hii
Friend upon him, whofe Right another Man cannot
give away, and therefore cannot refufe or difcharge fc
acceptance.
Nole^ This Cafe will admit of two Protefls, perijapj
^ three.
V _
BaU. in kg. I. One Proteft muft be made for not accepting accord-
pra debit. ins; to the time.
aaorld ^* ^^^ ^^^ ^^ Money, being demanded according to
pojfidcn, k^' ^^ ^^"^^ mentioned in the Bill, was not paid.
fer BartoL 3. If the Moncy is not paid according to that time
in leg.ftnguf. that the • Acccptor fubfcribed or accepted.
Col 7. #. ^ ^
probatur, ^ BJH ^^s drawn payable the firft of January^'ik
Perfon upon whom the Bill was drawn accepts the Bill
to be paid the firft of March, the Servant brings bad;
the Bill : The Mafter perceiving this enlarged accep-
tances, ftrikes out the firft of March., and puts in the
firft of January, and then fends the Bill to be paid, the
Per L.C. J. Acccptor then refufes : Whereupon the Perfon to whom
Pemherton, in- j-j^g Monies werc to be paid, ftrikes out the firft of Jm-
Shute[^Pafch. ^O'' ^"^ puts in the firft of March again : In an Adion
33clr. 2. 7« brought on this Bill, the Queftion was. Whether tkfe
B. R, Alterations did not deft-roy the Bill ? And ruled it did
not.
XXIX. J. draws 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, muft make a
Proteft for non-acceptance by B. and then he may take
the acceptance of C. and it fhall bind C. to anfwer the
Money. I
.Pinchardv. If a Bill is drawn on B. and B. happens to be in the I
^frTt'r. Country, ^nd a Friend of his defires the Party not to
^'^''''^' ■ /proteft,
Ich AP. X. m i^flljS of €]rc!jange* 327
proteft, and he will pay the fame. It is good, and fliall
bind fuch Party.
If there be two joint Merchants or Partners, and one Sa/k. 126.
of them accepts a Bill of Exchange, the fame fhall
yijd the other ; and an A<5lion of the Cafe on the Cuftom
' ^iy be maintained againft him.
XXX. Merchants generally allow three days after Lot:don,
a Bill becomes due for the payment j and for non-pay-
ment within three days proteft is made, but is not fent
jvay till the next Poft after the time of payment is
' Spired.
- If Saturday is the third day, no Proteft is made till I^olland,
XXXI. The Ufe of the Proteft is this, That it fig- There are
nifies to the Drawer that the Party upon whom he T^F^r n^o^- *
drew his Bill was unwilling, not to be found, or infol- acceptance,
vent, and to let him have a timely Notice of the fame, which is
: ffld to enable the Party to recover againft the Drawer ; called Inrima-
for if one draws a Bill from France upon a Perfon in non-payment.
: England^ who accepts and fails, or becomes infolvent
at the time of payment, if there be not a Proteft and
* timely Notice fent to the Drawer there, it will be dif- * Which is
ficult to recover the Money. ^"''be'lhT''
In Holland they are not altogether fo ftridt, yet there jj^jj-^j -Q^y^
mud be a reafonable time of notice j the reafon is, for
perhaps if he had reafonable and timely notice, the
Drawer then might have had effeds, or other means of
his upon whom he drew, to reimburfe himfelf the
Bill, which fince for want of timely notice he hath
remitted or loft. And the general Rule is, That though
the Drawer is bound to the Deliverer till the Bill is fatif-
W, yet it is with this Provifo, that Proteft be made in
due time, and a lawful and an ingenious diligence ufed There is no
for the obtaining payment of the Monies ; for it were "P^^F*^' ^^
unreafonable the Drawer lliould fuffer through his yg^ ib reipot-
I^eglea:. lible, to pro-
tefl immedi-
ately if the Money be not paid when it is due, /. e. the third Day, but there may
(especially beyond Seas) be great Hazard for want of protefting.
XXXII. Where a Merchant hath accepted, and be-
jore the fame became due, he becomes infolvent, or at
Icaft his Credit publickly blafted, a Proteft ought to go ;
but
328 M 75ill& Of €ltC})Simt. Booklj
Jn leg. pro di- but then there is ufually a demand made, which oncJ
hitoinfineC. coming, the Drawer is compellable to give better Secu
%udl' ""omen '''^^y ' ^"^ ^^ ^ ^^^^"^ ^^^^ <iomt%y if no Protcft, thcr
ju t. pojji en. pj,^^gj. ^^^ Security lie at flake. ^.^
If a Bill of Exchange be paid before it is due untaM
that breaketh afterwards, he fhall be compelled to pay it
again unto the Deliverer of the Money, within what time
it is payable. ^j]
Brunettiis XXXIII. If a Merchant draws a Bill, and there is a
Cafe. Proteft for non-payment ; if another Perfon hearing
of the fame, declare, that he for the honour of the
Drawer will pay the contents, and thereupon fubfcribes,
he is obliged thereby ; and in this cafe it has been pmc-
tifed, that that Party that received the Money, ,haih
put his Name on the back- fide of the Bill in blank ; but
the Receipt is fometimes taken on the Proteft, which
together with the whole proceeding is turned intqan
Ad, and the fame being drawn by the Notary, >i3
remitted to the Drawer by him who gave honour to the
Bill.
Fourteen XXXIV. If a Bill be accepted, and the Party dies,
t)ays allowed yet there muft be a demand made of his Executory or
T>°"^h^b f Adminiftrators ; and in default or delay of payment,' a
Adminiftra-^ Proteft muft be made : And although it may fallout,
tion can be that the Monies may become due before there an be
committed, Adminiftrators, or the Probate of the Will be granted ,
T^^^Wll^ yet thsft is delay fufScient for a Proteft in cafe of non-
payment.
But on the other hand, if the Party be dead to whom
the Monies are made payable,, and the Monies are ready
to be paid, and there is no Perfon that can legally
Butanlnti- give a Difcharge, yet a Proteft ought not to go for
mation ought not payment : The reafon is, becaufe there is no pcr-
IhaHheAc- ^^" ^^^^ ^^^^ ^"y Authority either in Deed or in Law
ceptoHs wU- to make it, and a Notary ought not to make it •, if he
ling to pay does, and the Party hath received any prejudice there-
according to \yy^ an Action of the Cafe perhaps may lie againft him
^^'^"* for his pains : Nor does it avail, that if Security be of-
fered to fave him harmlefs againft the Executors of
Adminiftrators, for that is an Adt left to his own DiN
cretion ; for perhaps the Security may not be liked
Chap. X. jBDf 75ilU Of e^Cl^ange* 3^9
But whether good or bad, makes nothing as to<oblige
iim in Law.
I'But if a Man is bound in a Bond to pay a Sum of
'Money to J. S. his Executors, Adminiftrators, ^c. and
the Obligee dies inteftate the Day before the Sum be-
tjomes due, yet the Bond is not forfeited if not paid at the
'bay, becaufe there was no body to whom the Obligor ^
icould pay to fave his Obligation : But as Littleton fays.
If it he to pay to J. S. generally, you muft hunt him out all
mr the Kingdom ^ if you'll fave the Penalty,
XXXV. A Man not found, or being found, not met
withal either at Home or the Exchange, is caufe fufHcienc
for a Proteft ; but in that there muft be diligence ufed in
the finding him.
A Bill returned protefted for non-payment being once
fatisfied by the Drawer to the Deliverer, the Drawer is
difcharged, and fo is the Acceptor to him to whom the
Monies were to be paid : But the Acceptor, by virtue of
his acceptance, makes him Debtor according to the Cujlom
of Merchants to the Drawer.
XXXVI. Monies may be had on Exchange by way of
Letters of Credit, the which are in two refpeds j the firlt
general ; the other fpecial.
The general Letter is open, directed, To all Merchants
and others that (hall furnifh my Servant or FaElor^ or any
other with fuch and fuch Monies ; for repayment of which
he binds himfelf to anfwer and pay ail fuch Bills of Ex-
change as fhall be drawn on him upon the receipt of the
value, by his Servant, Factor, or other Perfon : If there
be really Monies advanced on this Letter of Credit, and
paid to the Fadlor, Servant, or other, and Bills of Ex-
change are fent to the Party that fent fuch Letter of Cre-
dit, and if he refufes to accept, yet according to the
Cuftom of Merchants he is bound to pay : The Reafon
is, for that there was no Refpect had to the Ability of
the taker up, but to him that gave his Letters of Credit :
And therefore in fuch Cafe if an A6bion at Law be
brought, the particular Cuftom as to that Point muft be
carefully fet forth.
Y The
m
330 fS>t XiU& Ot €%Ci)mzts Book a
The fpecial Letters of Credit, where one writes a Let.
ter to furnifli another Man's Factor or Agent ; there isi
this the fame Remedy as above.
As Bills of Exchange feldom come without Letters of
Advice, fo ought they to be purfued : If a Bill fhailex-
prefs, ^nd put it to the Account of A ; and the Letter of
.Advice f.ys B\ this mud: be protefted againft, for it can-
not fafely be paid, at lead running the Rifque of an eoii.
table Suit. Mr :
XXXVII. If one pays Money on a Bill before kbe
due, and the Party breaks, it has been conceived diat
the Party ought to anfwer the Drawer : The Reafcn'
hath been, becaufe the Drawer might have counter^'
manded the fame, or ordered the Bill to be made payable
to another.
In Italy if Money is paid to a Banker's Servant, and
if the Mafter fubfcribe, Pagate comfi d'lcc^ this binds the
Mailer as effe6tually as if he had fubfcribed it with his own
hands.
XXXVIII. A Bill drawn by a Merchant in Lv^
payable by another Perfon beyond Seas, fuch Bilishin
moft Countries are affignable over from Merchant to
Merchant, and the lall Perfon may fue and recover
the fame upon an acceptance : But in England^ only the
firfl Perfon mentioned in the Bill, and to whom the
Money is made payable tnay recover. 'Tis true, fuch
Perfon to whom the Money is made payable may for
valuable Confederation deliver this Bill to another pcTr
fon, and he may indorfe an Order on the back-fidc.;
and if the Party afterwards refufes Payment of .the
fame, it may be filed in the Party's Name to whom
the fame was transferred, laying the fame by way ol;"
Cuflom.
But if the Perfon to whom payable, indorfes it for
Payment of Part to J, S. the Drawer is not hable to (lie
A<ftion of 7. S, for, a Man cannot make another-liaWe
to tv/o Aclions, where by the Contrad he is liable but to
one. L. Raymond 360, 744.
Where the Bearer receives Value for a Bill not in-
dorfed, it is a Sale of the Bill. Idem 442. But if there
be an Indorfement, though only upon Difcount, the
Ipdorfer
:i
ckAP. X. €)f TBtlliS of cycliange* 331
Indorfer is liable. Idem 443, 444. And a blank In-
dorfement may be filled up by the Indorfee. Ibid. In
j^iftion againft Indorfer, not neceiTary to prove the Hand
ofthe prawer. Ibid,
It is effential to a Bill of Exchange to be negotiable.
iMdS 294.
It is enaded by ^, 4. A. r. 9. That all Notes payable
to any Perfon or Order Ihall be adignable over in the fame
Manner as Inland Bills of Exchange are or may be, and
that any Perfon to whom fuch Note is indorfed, may
maintain an A6lion for the Money, either againft the
Perfon who figned fuch Note, or againft any of the
Perfons who indorfed the fame, in like manner as in Cafes
of Inland Bills of Exchange.
By Stat, 2. Geo. 2. Ch. 25. Se5f, i. If any Perfon
Oiall forge, or procure to be forged, or aflift in forging
any [inter alia) Bill of Exchange, Promiffory Note for
Payment of Money, Indorfement, or AfTignment of any
Bill of Exchange, or Promiflbry Note for Payment of
Money, or any Acquittance or Receipt for Money or
Goods -, or fhall utter or publifh as true any fuch forged,
fc^f. knowing the fame to be forged, with an Intent to
defraud any Perfon ; every fuch Offender fhall be guilty
of Felony without Benefit of Clergy. And,
By Stat. 7. Ges. 2. Ck 22. If any Perfon fhall falfly
make, alter, or forge, or procure to be falfly made, £f?f.
or aflifl: in falfly making, &c. any Acceptance of any Bill
of Exchange, or the Number or principal Sum of any
accountable Receipt for any Note, Bill, ^c. or any War-
rant or Order for Payment of Money or Delivery of
Goods, or fhall utter or publifh any fuch falfe Accept-
ance, Bill, C^c. with Intent to defraud any Perfon *,
every fuch Offender fhall fuffer as a Felon without Benefic
of Clergy.
XXXIX. In an Adion on the Cafe grounded upon i Keh. 592,
the Cuftom of Merchants, that whenever any fuch or ^3^-
other Perfon, negotiating for them with any other Mer-
tfaant in England, have Bills direded to them, that if
He to whom fuch Bills are diredcd, refufe to accept on
fight, or to pay fuch Bills, then he that drew it ought :
Both being by the Cuflom to be Merchants, the Bearer
^5
352 flDf 35tiljS0f €%tf^mst. BookiS
as well as the Drawer. And the Plaintiff not having
Ihewed that the Bearer was fuch a Merchant or Perfon
negotiating, it was moved to ftay Judgment for that
Caufe ; but Judgment was given for the Plaintiff, for by
the Court fuch Merchant, is referred only to him, to
whom the Bill is directed, and to the Procurers of fudi a
Bill, and not to the Drawers, or they to whofe ufe the
Money is to be paid.
See where an Averment is neceffary of the Defen-
dant's being a Merchant on fuch A6tion upon the Cuftom
of Merchants, Cro. James 306. . Oafle verf, Taylor, and
Cro. Charles 301. Barnahy verf, Rigalt,
Salk, 125. In an A6lion on the Cafe on an Inland Bill of Exchange
brought by the Indorfer againft the Drawer it was ob-
jeded, that there was no Averment of the Defendant's
being a Merchant ; but it was anfwered and refolved by
the Court, that the Drawing of the Bill was a fufficient
merchandizing and negotiating to this Purpofe.
CHAP. XI'
( 353 )
■vs:^
P< — i»-*i
i^^"^^piHll ■■■IIIIU.IJ tMlJt
■■ ■ ^mL
CHAP. XI.
( m
I ijjpf ^o\m$ aBimnceti bp toap of 15ottomt}>, o|
3.' Foenus Nauticum.
I
i. How Commerce is made equi^va-
lent to natural Community.
II. Whether Money be Jit only to
maintain the Trade and Credit of
Vice.
III. Abraham chofe to acquire a
froperty by Money.
IV. Of the natural and infrumen-
tal Meafure of the Value of
Things.
V. Uonx) Money is equal to all Things.
VI. Money is for buying^ and hin-
ders noty but helps Permutation.
VII. Money the InJIrument of Cha-
rity and Sacrifices y as nvell as our
NeceJJities.
VIII. Of the Difference hefvoeen
Monies advanced to be ufed in
Commerce at Land, and that
nuhich is adnjanced at Sea.
IX. 0/ Monies ad'vanced by nvay of
Bottomry, ivhen the Contrail
hath its Inception.
A,
X. Of Monies fent on Ship-hoard^
and the Veffel is nvreck'd, 'zvhere
the Lender /hall bear Share of
the Lofs, and ivhere not.
XI. Of Monies taken up by the Ma-
Jier, nvhere the fame Jhall oblige
the 0<ivners, and^where not.
XII. The Deri'vation and Infitu-
tlon of this fort of Loan, and for
wuhat Caufes.
XIII. Of the fe^veral Ways of taking
up of Monies by n^joy o/'Bottomry,
real and feigned.
XIV. Monies fo advanced, ivhether
Gain ought to be bounded^ or o-
thernvife left to the Will of the
Lender.
W. Of Ufura Marina, hon.v rea-
fonable the fame Jiands at this
Day.
XVI. Of Monies advanced to a con"
Jiderable Proft called Ufufruit.
MONEY is one of thofe things, which they who
want, want all other things but Words to reproach
their bad Fortune. But fometinnes it is the Policy, even
of Rags and Poverty itfelf, to undervalue that which it can-
not have, and to convert that which it hath (though never
fo mean) into an Efteem j and then to lodge as much
Pride in a Tub, as Alexander could in a Palace, though it
could not tempt him to a Change of Condition.
Nil hahet infeelix paupertas durius in fe^
^am quod ridiculos homines facit
No wonder therefore, feeing rich Men v/ill be obftinate
to hold their Advantages, that deformed Poverty, (which
mixes with them in the fame Frame, as a Shadow to fet off
Z their
354 SDf 0150ttOtt1tp, BooKlI.
.their Colours the better) would have the Rich to defcendl
to them ; and that inftead of fetting out Monies by way
of Bottomry^ Ufury^ and the like, they would not have any
fuch thing as Money at all, but would have all things re-
* Lib. I. cap. duced into a State as is before mentioned *.
»• ^ i>z, 3- It cannot be denied, but that we all live by the natural
or intrinfick Value of Things •, but the way to come by
them is an Inilrument of Civil Value, which is Money j
inftead of Community, therefore, we now have Commerce;
Which Commercium is nothing elfe but Communio merciutn\
but Communion muft needs be by the means of another
thing that may bear equal Proportion on both fides, which
is Money only. But now let us hear, and, if pofTible, fa-
tisfy the Complaints that are made againft it lb impa-
tiently.
Where there is great Luxury, there muft be liKewife
great Induftry to maintain it ; and therefore the Induftry
of this Civil State muft be greater than that which is in the
Jfcham de fimple State of Nature : But what is there here to blame,
cat'&f'"''' ^^^^"§ Induftry, no more than Plenty, is, in itfelf, a Sin ?
II. It is the Anfwer of Envy or Ignorance, Prima pre-
grinos ohfccena pecunia mores IntuIiL Money is that ffay
they) which maintains the Trade and Credit of Vice, if
that were taken away, we fhould look after nothing but
Neceflaries which are virtuous ; it makes too nice Inequa-
lities and Diftances, and is not fignificant enough in the
beft Things : For all the Money in the World is not really
worth one Penny- Loaf, which is convertible into our Na-
tures and Subftances •, it ferves only to afTure Fortune, but
not Virtue \ it is accepted as the Meafure of all things Na-
tural, Mora], and Divine : For Honour is nothing but an-
t Ariji. Polit. cient Riches i*, and in Morals, Virtus poft nummos •, this,
in Religion, breeds that Root of all Evil, Covetoufnefs :
For, in a fimple State of Nature, neceftary things mult
needs be fpent within a fhort Time, and the Return of the
Sun brings a new Supply and a Treafure greater than the
\u7at7'^^'' A'i/Vj ', of which One || makes this Obfervation, That it
Hifp!^ ' was got in Bloody fails homo in a Sea of Bloody and never
rejis till it he laid out in Blood. This was that which was
made the Price of Salvation^ even of the Blood of our
Bleffed Saviour^ thiity Pieces for that which was worth
thirty
r
Ghap. XI. 01 Foenus Nauticum, 355
' thirty thoufand Worlds ; but in the Religion of the firft
Times, Nullo violatiis Jupiter auro^ as Juvenal hath it.
And if this had not been brought into the World, we
Ihould not have fo much to difcount for at the Day of
Judgment. Why therefore ihould that which is condemn-
ed to the Obfcurity of the Earth, and lodged fo near Hell,
now be made the Price of all that which is above the Earth,
even a Solo ufque adCcelum ? Or why fhould we be excluded
from the Gifts of Nature, unlefs we have thofe of Fortune ^
Is it not then more reafonable that rich Men lofe this In-
ftrument of Luxury, than the Poor fhould lofe the necef-
fary Means of their Subfiftence ^ This is the Plea which is
made in forma Pauperis^ i^ de ipfa Paupertate,
Moft certain it is, that neither the Itupid Simplicity of
the Woods, nor Poverty itfelf, are any Part of Virtue ;
and therefore are not reckoned BlefTings, as Riches were to
Solomon^ (he who built God's firft Temple, and put his
Religion in luftre) and as they likewife were to Numa^
from whom Money was called Nummus j he likewife built
the firft Temple at Rome, and kindled firft the Veftal Fire^
^ ferocem popuhim deorum metu mitigavit.
III. We know how God converfed with Abraham^ who
was the firft that had Money, and made ufe of it to buy a
Property : It is true, they with whom he inhabited called
him a Prince ; but that was no Argument to him to dif-
own their Properties, but for the contrary, left they fhould
think that Dominion or a Right to Things was founded in
Grace.
IV. But to come more clofe to the Queftion, and to ex-
amine the Reafon and Neceffity of this Meafure ; Money
is like a Law or Government, which are all conftituted by
the fame extreme Neceftity *, therefore the counterfeiting
or attempting to deftroy any of thefe by private means, is
every where Treafon. Now this Meafure is two-fold, ei-
ther Natural or Civil, or rather Natural, and the Inftru-
ment which expreffes the natural by equal Permutation :
The natural Meafure is proportioned either by Want^ or
l^knty. In Want we confider whether the thing be ufeful
or necelTary ; things which are necefiary are beft, but of
leaft Price \ as a Loaf of Bread is more necefiary, but in-
finitely cheaper than a Diamond. One Man hath Clothes,
another Leather \ thofe two pofiibly have no need of one
Z 2 another,
I -
35<5 Of 130ttomtp, BooKl
another, and therefore there will be no Permutation betwixt
them •, but if one had need of another, then he who were
more prcfs'd, would come to the Price of the other : And
therefore Want of Plenty is the Meafure of eftimatino
things, and is the Bond of Society, whereby one Man
ffiews he is or may be ufeful to another ; and Nature hath
fo ordered it, that no Man is fo rich who hath not fome
need of the Poor ; and no Man is fo mean and abje61:,^but
he may be fome ways ufeful to the Rich.
Money is like V. The Civil Meafure, or rather Inftrument, whereby
TermofaSd-^^^ Natural expreflcs itfelf, is Money ^ which hath but a
logiim, of feigned Value, and therefore it is fometimes higher and
which it is lower in efteem as Men pleafe ; which could not be, if its
faid, ^^con- Value were natural, which is unalterable. If I have Cloth
li^cZ^-Ziiln't ^^ ^"^^ ^ Price, and you have Wines at the fame Price,
inter fe. then we regarding the fame Price, may make an equal
Permutation : Or if I give to you fo many Pieces of Gold
for your Cloth at the fame Price, the Sale is equal again.
* Polandy and Whether it be an Inconvenience, that in fome Countries* it
generally in jg fometimics at a higher Value than at another, is not a
Northern Confiderltion of this Difcourfe ^ for the Price of things
Coantries. themfelves change more than any Money doth daily.
VI. Money is an Invention only 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
dig now in wafle Hills have their Harveft of Beans well
gathered in, but had need of Wine for the Stomach's fake,
or of Drugs for Health's fake -, if the Vintner, or Apo-
thecary have no need of Beans, what ufe will they make of
the natural 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 aflifts them ; nay, it is therefore an
Inftrument of Inftruments ; for he who hath Money may
buy things v/hich he need not ufe, but fell, thereby to get
other things afterwards for his Ufe. There is no Nation or
People fo barbarous, but have Money or a publick Inftru-
ment of Permutation either in Metals or in Filh Bones,
&c. for it imports not much of what matter it is, pro-
vided it be durable, not counterfeitable, and difKciilc to
come by.
^ VII.
Chap. XI. O? Foenus Nauticum. 3^7
VII. Take away this fungible Inftriiment from the Ser-
vice of our NecefTities, and how fhall we exercife our Cha-
nty, which is a Branch of Rehgion and Juftice, as well as
of Humanity? He who goes to Church, pafleth, as it
were, through two Temples, the Poor at the Porch, and
the Temple itfelf : And the giving at the Porch is called
Sacrifice, Offering , and Gift, as well as that at the Altar.
God would be facrificed to only in one Town of the World,
Jerufalem : But could that have been, if Money and Money- Vide Chap, of
Changers had not been allowed ? How could they, who Exchange,
came from fuch remote Places, have, by any other means, **
brought their Oxen, Calves, Goats and Doves to the Altar?
If there were nothing further to fhew, but that one Piece
which our Saviour himfelf coined miraculouQy in the
Moudi of a Fifh, it were Argument fufHcient that the Ufe
of Money may be both good, juft, and necelTary.
VIII. Things being thus flated, and that Money is both
good, juil, and neceffary, it will be demanded loudly, That
admitting a reafonable Advantage may be made by way of
Uftiry, quo jure is it, that an Advantage upon the fame,
more than what the Law allows, is taken ?
The Diftindlion is great between Monies lent to be ufed ^^^^- 3- ^-^^
in Commerce at Land, and that which is advanced to Sea. ///V ^TJ /
In the firil, the Laws of the Realm have fct Marks to go- 62. D. de ret.
vern the fame, whereby the avaricious Mind is limited to Vindic
a reafonable Profit : The Reafon of that is, becaufe the ^"^'' ^'^'
Lender runs none, but the Borrower all the Hazard, w^ha-t- ^' 2.
ever that Money brings forth. But Money lent to Sea, or
that which is called Pecunia * traje^itia, there the fame is * ^^S- ■^'^^•
advanced on the Hazard of the Lender, to carry (as is ^^^f^- j-^S-
luppofed) over Sea •, lb that if the Ship peridies, or a icx Mercat,
Spoliation of all happens, the Lender fhares in the Lofs, 122.
without any Hopes of ever receiving his Monies -,_ and
therefore is called fometimes Ufura Marina^ as well as
Fcenus Nauticum, the Advantage accruing to the Owners
from their Money, arifing not from the Loan, but from
the Hazard which the Lender runs -, the which is com-
monly reduced to a time certain, or one or more Voy-
ages, according to their feveral and refpcdive Agree-
njents.
Z 3 1%.
■H
353 ®f 'BOttomt?, Book II.
IX. If the Bonds be fealed, and the Money is advanced
if the Ship happens to mifcarry by Storm, Fire, Enemy',
or any otherwife before the Voyage began, then the Bor-
rower runs the rifque, unlefs it be otherwife provided ^ene-
Vldepajfimad rally, as that if fiich a Ship fliall not arrive at fuch a Place
aC "^^ h'dd ^^ ^^^^ ^ ^^m^-, ^c. there the Contradt hath its Inception
leg%JavaL ' ^^^^ ^^^ ScaUng ', but if the Condition be. That if fuch a
R/^cd. Ship fhall fail from London to Amfterdam^ and fhall not
arrive there, <£c. then, l£c, there the Contingency beajns
not till the Departure. Yet it has been conceived
that if the Mafter takes up Money accordingly, and
buys in a lawful Lading, but will endeavour to defraud
the Prince or State of their Cuftoms, and put fuch Goods
Vide leg. 3. C. o^^ Board, by means whereof he has incurred a Forfeiture
de Focn. Naut. of his Ship ; in fuch Cafe the Lender is not obliged to fuch
hazard.
X. If Money be lent on Ship-board by a Merchant /«p^r
Cargo or Paflenger, and before the Day of Payment the
Ship happens to be wreckt or cafb away ; if there be fuch
a Saver as will admit a Contribution, then the Party is not
f^eg. Na'val, to have his whole Money ^ but is to come into the Average:
Arttc. 17. g^ij. jf ^}^e Time of Payment were paft before the Misfor-
tune happened, then the Lender muft be repaid his whole
Money free from Contribution.
And therefore by the Laws Marine, if the Borrower de-
tains any fuch lent Monies beyond the Term appointed for
Artk. I S. the repaying, he fhall at his Return not only pay the Profit
agreed on before the Voyage, but alfo augment the fame
according to the Time that hath accrued fince the Day of
Payment.
Where the Bond will be forfeited by Deviation. Stt
2 Cha. Ca. 130. 2' Salk. 444.
Where the Ship never went out of the River, the Lender
was obliged to take his Principal and Intereft, becaufe he
ran no Hazard, i Fern. 263.
Courts of Equity will not affifl Bottomry-Bonds, which
carry an unreafonable Intereft. Dandy and f timer, Equ.
Jl^r. 372.
XI. A Mafler of a Ship hath no Pov/er to take up Mo-
ney by Bottomry., in Places where his Owner or Owners
fdwell, unlefs it were for fo much only as his Part comes to
in
Chap. XI. of Foenus Nauticum. 359
in the faid Ship : Otherwifc he * and his Eflate miiO; ftand * Teflatur re-
liable to anfwer the fame, {a) But when a Mailer is out ""'"^ '^i^f^'
of the Country, and where he hath no Owners, nor any j^autic. Qu'em
Goods of theirs, nor of his own, and cannot find means to ^idepag. 95.
take up by Exchange or otherwife, and that for want o^^eg.oiero7t.
Money the Voyage might be retarded or overthrown, Mo- ^j/^^f^^ t-^ '
nies may be taken up upon Bottomry^ and all the Owners /. i, c. eod.
are liable thereunto ; otherwife he fhall bear the Lofs, that Leg.quiRctna
is, the Owners are liable by their Vefiel, though the Mo- h-^'^ljtna-
my is not fo imployed in truth -, and the Owners have their Ji ^ ]^/^ *
Remedy againft him whom they put in Trufb. {h) But Gothfr. &
the Perfons of the Owners are no ways made liable by the ^^''^■^•
Ad of the Mafter for Monies taken up. ^^^ ^f^ ^^j
If Owners agree not in fetting out the Ship, mofi: Voices 95.* Laich. °^
Ihall carry it, and then Money may be taken up for their 252. 5'^/i. 34.
Part by Bottomry^ or Fcenus Nauticum^ or by Hypothecating ^^^' '^'^''^•
fuch a Proportion of the Ship. WsI/l]^,
Many Mailers of Ships having Ehfured or taken up Mo^ 2 Mod. Cafes
nies upon Bottomry to greater Sums of Money than the 79-
Value of their Adventure, do wilfully caft away, burn, or l^^^^-^-^ap,
otherwife deftroy the Ships under their Charge, the fame ,' A" ^^*
was made Felony, and the Perfon and Perfons fo wilfully § 5/
doing or procuring the fame to be done, were to fuffer
Death.
XII. The Signification of this Fcsnus Nauticum^ is by
the Dutch called, Bomerie^ Bodmerie^ Boddemerii^ (fo vari-
oully pronounced) from the Keel * or Bottom of the Ship * joj,. Locin,
upon the Parallel whereof the Rudder of a Ship doth go- iib. 2. c. 4.
vern and direct the fame ; parte pro totofwmpta^ itaprimum ^- ^- ^^^^^^^
appellata^ cum etiam lingua Gallorum antiqiia & Britannica Scarborough^^
Bodo vel Bodun fundum aut profundum fignet '\ in qiiem navis Cafe.
fundum^ vel ipfam navem ejufqy ufum mutuo accepta efi pecu- 1 "^^P Camh-
nia, fed poftea latins pro fee nor e nautico etiam ufurpari ccepit. T°^^ ^^T^
And the Money fo taken up by the Mafter is done upon lodniuiub.z,
great Extremity, and that for the compleating of the Voy- cap. 4. §. i.
age when they are in Diftrefs and Want in Ibme Foreign
Parts ; and indeed fuch taking up is indeed in the Nature
of Mortgaging the Ship, ^ov le Neif efl oblige al pay ?n en t
de ceo^ ^c. And in the Inftrument there is a Claufe that
exprcifes that the Ship is engaged for the Performance of
the fame.
Z 4 Monies
3^0 ®f TSuttOnit?, Book II.
Monies that are advanced are upon two Securities, the
one is on the bare Ship, the other upon the Perfon of the
Borrower, fometimes upon both : The firfl is where a Man
takes up Monies and obliges himfelf, that if fuch a Ship
fhall arrive at fuch a Port, then to repay (perhaps} double
the Sum lent -, but if the Ship happens to mifcarry, then
nothing.
Difference be- This Money Is likewife called pectinia traje5fitia^ becaufc
pXeTLoan's at ^^^^ "P^" ^^^ Lender's Danger or Adventure, it is carried
Jntereil. beyond or over the Seas, fo that if the Ship perifh, or all be
fpoiled, the Lender does lofe his whole Money lent : But
on the contrary. Money lent at Intereft is delivered at the
Peril of the Borrower, and the Profit of this is merely the
Price of the fimple Loan, and is called Ufura, But the
Profit of the other is a Reward for the Danger and Ad-
venture of the Sea, which the Lender takes upon him du-
ring the Loan, which is to be underflood until the Voyage
be ended.
XIII. So likewife fome will take up Monies, the Con-
dition reciting, Whereas there is fuch a Ship^ naming her,
hound to Amfterdam, whereof fuch a Man is Mafitr^ f where-
as indeed there is no fuch Ship or Mailer in Nature) that if
that Ship fhall not arrive at fuch a Place within iwehe
Months^ the Money agreed on to be paid^ fhall he paid \ tut
if the Ship fhall arrive^ then nothing. The firft of thefe is
honourable and jufl, according to the laudable Pradicc
among Marine Perfons, and though the Advantage runs
Toto tit, Mg, high, as 20, 30, nay fometimes 40 per Cent, without
^ ^f-/' . . Confideration of Time ; (for the Monies are to be paid
Doaorumjlc withm 10 many Days after the Ship s fafe Arrival ;) yet m
fiardus m tit, regard the Adventure is born by the Lender, for (if the Ship
Cod. de Naut, perilhes, the Advancer lofes,) the Laws and Pradice of all
Jam. n. c. Maritime Countries allow of the fame. And therefore by
7rajeaitlafe- ^^^ Common Law., if an Adion of Debt be brought on fuch
funia propter an Inflrumcnt, the Defendant cannot plead the Statute oi
fenculum ere- Ufury. And fo it was adjudged where one Sharpley had
^jTnl^gaT brought an Adion of Debt on a Bond for Monies taken up
ita-vis ivfinitas "pon Bottomrv : The Defendant pleads the Statute o^Ufwrjy
tifuras caper e and fhewed that a certain Ship called the made a
Chkh Law"'t ^^y^g^ to fifn in Newfoundland, (which Voyage might be
was obferved by Anianus, ^ia maris pericuk commitiiitir in fiuantas convenerit ufurai
ftanc tecuniam dai e creditor poirji. ' '
"' ' performed
Chap. XL oj Foenus Nauticum.' 361
performed in eight Months) and the Plaintiff delivered 50/.
to the Defendant to pay 60 /. at the Return of the Ship to
J), and if the faid Ship by Leakage or Tempeft fhould not
itturn from Newfoundland to D. then the Defendant fhould
pay the principal Money •, and if the Ship never returned,
then nothing to be paid. Upon * Demurrer it was adjudged
the fame was not Ufury : For if the Ship had (laid at New- Verumemm-
foundland two or three Years, yet at her Return but 60 /. '^^^^J^ ^^
was to be paid, and if fhe never returned, then nothing, /ari, damna-
tum fcenus , fed
cmpenfationcm aliquant periculi, quod creditor contra naturam mutui infe recepit partem.
Johams Lociuius, lib. 2. cap. 4. §. I, ^ff 2. * Trin. 6. Jac. in B. R. 2 Cro. 208,
Sharpley ver{ns Harroll, i Levinz 54. Sayer & Cleane^ ^ I. Sid. 27. Cro. Jac. 503*
I Keb. 711.
The other Advance which is upon a fid:itious Suppofi-
tion of a Ship and Mailer, wherein indeed there is no fuch
Nature, is more unconfcionable, the fame being the com-
mon Practice that's ufed amongft the Italians^ and now on
this fide the Water, though the fame is as .to internal Right
iinjuft, yet it is daily praftifed, and it was not long fince ad-
judged t that fuch Contrad was good, according to the f c. 'B. Hill.
Common Law of this Realm, and that on a fpecial Verdift. 22, 23 Car, 2-
XIV. Mod certain it is, that the greater the Danger is,
if there be a real Adventure, the greater may the Profit
be of the Monies advanced : And fo hath the fame been the
Opinion of Civilians, and likewife fome Divines ; though ^'^'^'''f. Caroluin
fome feem to be of Opinion, that any Profit or Advantage ,,n.'^^^^^ '
ought not to be made of Monies fo lent, no more than of 92. ait hoc ap-
thofe that are advanced on fimple Loan, and on the Peril oiprohant onmes
the Borrower. However, all or moil of the trading Na- ^7//'^)|^'^X
tions of Chriflendom do at this Day allow of the fame, as a Lidaccipere
Matter moil reafonable, on account of the Contingency ultra fortem
or Hazard that the Lender runs ; and therefore fuch Mo- pro fuiceptione
nies may b^ advanced feveral ways, and a Profit may ^{^^^{^ [jj^t ^^
arife fo, that there runs a Peril on the Lender. mull be upon
a real Venture.
CI. Salmafms, cap. g. de modo ufur. fol. 380, 188, 218. TrajeSIitia pecunia propter
firiculum creditor is, quamdiu na=vigat na'visy injinitas ufuras caper e potejl. Upon which
place Anianus obferves, ^ia ?naris fcriculo committitur in quantas connjsnerit ufuras
^anc pecunia7n dare creditor potefi. Vide No-vel. Con/}. 106, 11 o,
XV. There is likewife a fecond way of advancing Mo-
nies called Ufura Marina^ joining the advanced Monies
and
.
362 fiDf TSottomrp, 9c* Book I
and the Danger of the Sea together ; and this is oblJeinJ
fometimes upon the Borrower's Ship, Goods and Perfon
The Produd of which by Agreement will advance fome-
time 20, 30, and fometimes 4.0 per Cent. As for inftance
A private Gentleman has 1000/. ready Money lying by
him, and he has Notice of ah ingenious Merchant that has
^ good Credit beyond Seas, and underftands his Bufinefs
fully, applies himfelf to him, and offers him a 1000/. to I
be laid out in fuch Commodities as the Merchant (hall think
convenient for that Port or Country the Borrower defigns
for, and that he will bear the Adventure of that Money
IJfura legi- during all that Voyage ; (which he knows may be accom-
iima ejus qui piif}^ed Within a Year) hereupon the Contrad is agreed
^feclniam^ upon, 6 fer Cent, is accounted for the Intereft, and
irans mare 12 fer Cent, for the Adventure outwards, and 12 per Cent.
wehenda7nfa' for the Goods homeward *, fo that upon the Return the
Vu^Telk l"^' Lender receives o^o per Cent, which amounts to 1300/.
fuo, centefima And this cannot be Vfury by the Laws of this Realm, for
efi. the Rifque and Danger that the Lender runs.
In the Eafi' XV. There is alfo another way, but that is both honeft
India, and and honourable, called Ufufruit^ that is, a Stock in a Com-
iome other pany or Society, which is perpetual ^ fuch a Stock or Por-
inpanies. ^|^^ ^^^^ 1^^ purchafed, that is, the Advantage or Benefit
arifmg by the Improvement of the fame.
As for inftance. The Eaji- India Company hath T^Skcl
lodged in their Hands by divers Perfons, which they in the
moft prudent manner as they fee fit, imploy to fuch Places
as they judge moft proper \ if a Return is made, the Ad-
vantage of that is diftributed to each Perfon that is anyway
intitled to that Stock \ which Advantage is called a Dm-
dend^ and perhaps may afford fome 20 or 30 per Cent. But
on the other hand, if that Proportion of the Stock which
goes out happens to mifcarry, the Abatement is propor-
tionable, and fo the Stock may be leiTened, unlefs that they
will ftay the Dividends to keep up the Stock -, the which
they may do ; For it is a Truft repofed of fo many Mens
Monies in their Hands., to yield them fuch Advantage as tbt^j
Jhall upon a jufi Account fet out : So that if a Man hath
1000/. Stock, he cannot take the fame out of the Great
Stock whereby to leften the fame, but he may transfer that
Ufufruit by that cuftomary Way which they have to any
other Perfon, for a valuable Conlideration in infinitum.
CHAP.
Chap. XI.
Cu(foni0t
363
CHAP. XII.
Of impoGtionss callca <©?cat Cuffoms, pcttp
I. Impofitions, nuhether they may he
commanded <^mthout the 7hree
EJlatesy and of Magna Charta
touching the fame.
II. Of Impofitions made <voluntary
hy confent of Merchants, a^id of
the Adnul of the fame.
III. Of the Confirmation of the Great
Charter for ft ee Trajfick ; and of
the Settlement noiv made on His
Majtjly of the fame.
IV. Of the Immunities formerly of
the Hanfiatick Tokens here in
England, and ivhen determined.
V. Of the Antiquity of Cufiomers or
Publicans as n,ve II in former Ages
as at this prefent time^ in moft
Nations.
VI. Of the Impofition called Magnz
Cuftuma.
VII. Of that nvhich is called
Parva Cuftuma payable by Stran-
gers j and the h&L called commonly
Charta Mercatoria.
VI II. OfSubfidy^andoffwhatfand
the Rates ho<wfet.
IX. Of Subfidy hy Strangers on
Wines.
X. Of Goods not rated ho'w to
pay.
XI. Of the Subfidy Duty for
Cloths,
I. jMPOSiriONS neither in the Time of War or
other the greateft NecefHty or Occafion that may
be (much'lefs in the Time of Peace) neither upon Foreign
nor Inland Commodities of what Nature foever, be they
never fo fuperfiuous or unneceflary, neither upon Mer-
chants, Strangers, nor Denizens, may be laid by the King's
abfolute Power without Aflent of Parliament, be it never
fo fhort a time.
By the Statute of Magna Charta^ Chap. 30. Al Mer^
chants, if they were not openly prohibited before^ jhall have
their [a fe and fur e Conducts., to enter and depart^ to go and
tarry in the Realm., as well by hand as by IVater^ to buy and
fell without any evil 'Tolls y by the old and rightful Cujioms
{except in time of War) and if they be of the Land making
War againft us, and be found in our Realm at the Beginning
of the War., they fh all be attached without Harm of Body or
Goods^
364 CtiContiJ* BooKnf
Goods, until it he known to us or our Jujiices how our Met
chants he intreated there in the Land making War againfi us
The Statute of which this is a Branch, is the moft ancimt
Statute Law we have, won and fealed with the Blood of our
Anceflors, and fo reverenced in former times, that it hath
been twenty-nine times folemnly confirmed in Parliament.
Cufloms, Subfidies, Tolls, Excifes, Imports, and other
Duties upon Commodities imported or exported are due to
the particular Princes or States, by the general Law of Na-
tions, as a Matter inherent to their Prerogatives, as they
are the abfolute Commanders, Proprietors, and Maintainers
of the Harbours, Havens and Ports, where the Commodi.
ties are exported or imported : And all Merchants are bound
to take notice thereof, and obferve the fame, according to
the Feudal Laws, Conftitutions and Proceedings therein
ufed in ^11 Countries refpedlively, whereby they are fecured
and defended in their Trade and Traffick. Or otherwife
in Breach of not obferving fuch Laws and Conftitutions,
they are in danger of Mulds, Fines, Lofs and Forfeitures
of their Goods and Commodities. To give an exad Ac-
count of the Nature, Antiquity, feveral forts of Cuftoms,
Subfidies, Impofts, and other Duties relating to Merchants,
would take up too large a Compafs for this Treatife, there-
fore fhall refer as to the Nature of them to the feveral Books
of my Lord Coke m his 2 Injlit. upon the Stat, of Mapa
Charta, Cap, 30. And other Statutes and Books which are
many on this Subjedl.
Rot Abnaign. II. Impofttions Were in fome fort done Confenfu Merca-
3 Ed. 3 Rot. torum, by Edward the Firft, and Edward the Third : And
^^""fd I Ex ^S^^" ^^ Henry the Eighth, of which the Houfe of Bur-
trasi. Bruxei-g^i^^y Complained, as againil the Treaty of Entercourfe.
/«. K-ing Henry the Third finding that fuch a Modus oil^-
-pofition tended to the Deftruclion of Trade, and apparent
Overthrow of Commerce, and v/as againft the Great Char-
ter, made Proclamation Anno 1 6. in all Ports of England^
Dorf. Clauf. tf^ai; ^\\ Merchants might come faciendo re5fas ^ debitai
T zt ^^^' ^* confuetudines, necfihi tirneant de malts tollis^ for that fuch
Impofitions had no better Name than Maletolts.
Rot. Clauf. The like was declared and done by Edvoard the Firft m
II Ed. 2. the twenty-fifth Year of his Reign ; and Edward the Se-
cond, in tlie eleventh and twelfth Years of his Reign.
And
Chap. XII. Cuttomgf* 365
And though the King cannot lay any Impofition on
Merchant o^ Merchandize without AfTent in Parliament,
yet the King by his Prerogative may reftrain them from
Trading (if not from any Chriflian Foreign Prince) yet
from any Infidel Realm, State or People, without his Royal
Licence : And the Reafon of this is, for that by fuch Com- ^i^e Lane\
merce it might give occafion for the Relinquilliment of the ^^po^,^ '^ r
Catholick Faith, and an Opportunity to adhere to Infide- jj^jg Matter *
lifm ; and therefore generally in Edward the Third's Time, there debated.
Licenfes were frequently granted with this Preamble, that Mitchelboum
the King having fpecial Truft and Confidence that the Party and Mitchel-
would not decline from his Faith, did licenfe him, ^c. In p^^"'^ ^^^^*
the feventh Year of King James this very Matter came in ^ 'Bron^^nhvi
Queftion, upon Licenfe granted to a Merchant to trade to 296.
the Eaft-Indies,
III. In 2 Ed» III. the Great Charter for free Traffick was
confirmed ; and about fome three Years after there were
CommifTions granted for the raifing of a new kind of Tal-
lage, but the People complained ; whereupon the Com- 12 Ed. 2,,
miiTions were repealed, and he promifed never to aflefs any ^emb. 22. in
but as in the Time of his Anceftors. ^'^f ^^f * ^^'
But this Prerogative Power of impofing inward and out-
ward upon Commodities over and above the ancient Cu-
ftom of Subfidy without a free Confent in Parliament, is
now ceafed and fettled ; and that Queftion, which for many
Ages had been handled by the moft Learned of their Times,
in the aflerting and in the denying, will never more be re-
membered, the fame being now eftabliihed by Ad: of Par-
liament : Which being managed for fome time, was after-
wards farmed out, and now again managed. The like
having been done by former Kings, as did Edward the * Clauf.Anno,
Third with the * New and Old Cuftoms of London for S ^^- 3 Orig.
1000 Marks monthly to be paid unto the Wardrobe. Rofi' ^
Richard the Second, y^mo 20. farmed out the Subfidy
of Cloth in divers Counties.
So Edward the Fourth, Henry the Eighth, Queen Eli- Lane's Rep."
zabeth^ and King James ; the fame having been ufed mfi^- 22.
former Ages even in the beft governed State, Rome, which
let out Portions and Decim's to the Publicans.
The Old ^anfe 'CotDn0, viz. Luheck^ Collen^ Brunf-
'^ick^ Bantzick^ and the reft, had extraordinary Immuni-
ties granted unto them by our Third Henry ^ for their great
^ Aflillance
3^6 CuffonijSf. Book
AfTiflance, and furnifliing him in his Wars and naval ExdJ
ditions with fo many Ships ; and as they pretended rh
King was not only to pay them for the Service of'thei
Ships, but for the VefTels themfelves in cafe they mifcarried-
The King having concluded a Peace^ and they being on
their return home for Germany^ tlie mofl confiderable Part
of their Fleet mifcarried by Storm and Strefs of Weather-
for which (according to Covenant) they demanded Rep/.
ration. The good King in lieu of that which he wanted
Money^ granted them divers Immunities ; and amongft
others, they were to pay but i pr Cent. Cuftom, which
continued tiH Queen Mary^s Time ; and by the Advice of
King Philip ihe enhanced the i to 20 per Cent, the Hmi
not only complained, but clamoured aloud for Breach of
their ancient Privileges confirmed unto them by lono- Pre.
fcription from thirteen fuccefTive Kings of England, and the
which they pretended to have purchafed with their Money.
King Philip undertook to accommodate the Bufinefs, but
Queen Mary dying, and he retiring, nothing was efFeded.
Complaints being afterwards made to Queen Elizakth, Ihe
anfwered. That as fie would not innovate any thing, filht
would protect them ft ill in the Immunities and Condition fkt
found. Hereupon their Navigation and Traffick was fuf-
pended a while, which proved very advantageous to the
Englijh, for they tried what they could do themfelves here-
in ; their Adventures and Returns proving fuccefsful, they
took the whole Trade into their own Hands, and fo divi-
ded themfelves into Staplers and Merchant-adventurers;
the one refiding conflant at one place, the other keeping their
Courfe, and adventuring to other Towns and States abroad
with Cloth and other Manufa6lures. This fo nettled the
Hans^ that they devlfed all the ways diat a difcontented
People could to draw upon our new Staplers or Adventu-
rers the ill Opinion of other Nations and States : But that
proving but of too fmall a Force to flop the Current of fo
llrong a Trade as they had got footing into, they reforted
to fome other ; whereupon they applied themfelves to the
Emperor, as being a Body incorporated to the Empire :
And upon Complaint obtained iVmbafladors to the Queen
to mediate the Bufinefs : But they returned ftill re infe^i^'
Hereupon the Queen caufed a Proclamation to be publilh-
ed, That the Merchants of the Hans Jhould k intrcatcdani
ujd
[Chap. XII. CttftomS* 367
' ufed as all other Strangers within her Dominions in point of
Commerce^ without any Mark of DiJiin5iiGn,
This inflamed them more, whereupon they bent their
Forces more eagerly, and in an Imperial Diet, at Ratif-
1 \sni they procured that the Englifh Merchants, who had
aflbciated themfelves in Corporations both in Emhden and
other Places, fhould be adjudged Monopolijis ; whereupon
there was a Comitial Edid: procured againft them that they
Hioiild be exterminated, and banifhed out of all Parts of
the Empire ; which was done by Suderman a great Civi-
lian. There was there at that time for the Qiiecn as nim-
ble a Man as Suderman^ and he had the Chancellor of Emb-
den to fecond him, yet they could not flop the Edidt,
whereby our new ere(5led Society of Adventurers were pro-
nounced a Monopoly : Yet Gilpin played his Cards fo well,
that he prevailed the Imperial Ban fhould not be publilhed
till after the Diet j and that in the interim his Imperial Ma-
jefty Ihould fend an Ambaflador to England to advertile
i\\t Queen of fuch Proceedings againft her Merchants. But
this made fo little Impreflion on the Queen, that the S3dtt
grew rather ridiculous than formidable, for the Town of
Emhden harboured our Merchants notwithftanding, and af-
terwards the Town of Stode ; but the Hanfiaticks purfuing
their Revenge, and they being not fo able to prote(fl them
againft the Imperial Ban, removed and fettled themfelves
in Hamburgh.
This Politick Princefs, in recompence of their Revenge,
commanded another Proclamation to be publifhed, * That V
' the Hanfiatick Merchants fhould be allowed to trade into
' England upon the fame Conditions as they formerly did,
* provided the Englijh Merchants might have the fame
* Privileges to refide and trade peaceably in Stode or Ham-
' hvjgh^ or any where elfe within the Precinds of the Hans*
This fo incenfed and nettled them, that all Endeavours
were made to cut off Stode and Hamburgh from being Mem-
bers of the Hans^ or of the Empire : But the Defign was
fufpended till they faw the Succefs of 88, King Philip ha-
ving promifed to do them fome good Oifices in the
Concern.
But the Queen finding that the Hans were not contented
with that Equality flie had offered to make betwixt them
and her own Subjeds, but were ufing fuch extraordinary
% Means^
IJl
Dii
363 CtlrfbttlS. Book lie
Means, put forth another Proclamation, ' That they fhoui
' tranfport, neither Corn, ViduaJs, Arms, Timber, Mafi
< Cables, Metals, or any other Materials or Men to Spai\ itl|
* or PorfiigaC And not long after the Queen growi 1
more redoubted and famous by the Overthrow of Km I
Fbilip^s Invincible Armado, (as the Pope chriftenedit)tlJ!r
Hans began to defpair of doing any good, efpecially thcl
having about fome 60 Sail of their Ships taken about thcl 1
River Lisbon by her Majefly's Frigats, that were lad^nl
with Ropas de contrahanda. She notwithftanding liad
Thoughts of difcharging this Fleet by endeavouring a R^
concilement of the Difference : But fhe having Intelligence
of an extraordinary Aflembly at Luheck^ which had pur-
pofely met to confult of Means to be revenged of her, flie
thereupon made abfolute Prize of thofe 60 Sail, only two
were freed to carry home the fad Tidings of their Brethrens
Misfortune. Hereupon the Pole fent a ranting Ambaffador
in the Behalf of the Hans^ who fpake of the Injuries done
to the Hans in a high Tone. But the Qiieen herfelf fui-
denly anfwered him in a higher, with a Satisfadion no
greater than what fhe had done to others of the like Qua-
lity before.
This fortunate Clafliing for the 19 pe7' Cent, on the
Cuftoms, has proved ever fince advantagious for £»fW,
our Merchants have ever fince beaten a peaceful and an un-
interrupted Trade into High and Low Germany -, and by
their confiiant Trade in thofe Parts have found a way thro*
the White Sea to Arch- Angel and Mofco, The Return of
all which hath fince vaftly increafed the Riches a,nd Strenph
of this Nation,
Jofeph. hew V. After the Jews became tributary to Rome^ (which
tus dePornpeio. was acquired by Pompey threefcore Years before the BirDi
jld. t ^'^^'' ^^ ^"^ Saviour) certain Officers or CommilTioners were
p. 720. * appointed by the Romans in all thofe Places where their vic-
torious Standards had claimed a Conqueft, who ufed to ap-
point fuch Officers or Commiffioners to collect and gather
up fuch Cullom.-money or Tribute as was exa6led by th?
Senate. Thofe that gathered up thefe publick Payments
were termed Puhlicani^ Publicans^ and by reafon of their
cruel and oppreflive Exaction, they became hateful in all
Nations.
Every
Chap. XII. CtiffomS* 369
Every Province has its feveral Society or Company of
Publicans ; * every Society its diftind: Governor : In which * Sigon.de An
refpec^ it is that Zacheus is called by the Evangelifts, Prin- ^t^- 7^' ^''^
ceps Puhlicanorum^ the chief Receiver of the Tribute, or ^^^^ 11/2?
chief Publican : And all the Provincial Governors in thefe
feveral Societies had one chief Mafter or Superintendant
refiding at Rcine^ unto whom the other fubordinate Gover-
nors gave up their Accounts. Thefe Publicans were hated
of all the Roman Provinces, but efpecialiy of the Jews^ be-
caufe though it was chiefly maintained by the Galileans^ yet
it was generally inclined unto by the Jews^ that Tribute
ought not to be paid by them. This Hatred is confirmed Jf- Caufahon,
by the Rabinnical Proverb, T^ake not a Wife out of that Fa- '^^^^"^' 3-37<
mily wherein there is a Publican^ forfuch are all Publicans,
Yea, a faithful Publican was fo rare at Rome itfelf, that one
Sahims^ for his honeft managing of that Office, in an ho-
nourable Remembrance thereof, had certain Images with
this Infcription^ KaAw? rfXcoviifl-avlt For the faithful Publican, Sutton, in
No marvel that in Holy Writ Publicans and Sinners go ^^'^'^- ^^f^*
Hand in Hand. ^^^'
Hut that moft excellent Advice of my Lord Shaftfhury
ought never to be forgot, but to be engraven in the Hearts
of the Managers fo well as over the Door of the Cufiom-
fe, VIZ.
Let me recommend to you fo to manage the King's Ju-
ftice^ and the Revenues, as the King may have moft Profitj
and the Subje6t lead Vexation. Raking for old Debts, the
Number of Informations, Proje6ls upon Concealments, I
could not find (in the eleven Years Experience I had in this
Court) ever to advantage the Crown -, but fuch Proceed-
ings have, for the moft part, delivered up the King's good
Subjects into the Hands of the worft of Men, Clerk of the
Court, Cuftom-houfe Officers, and Excife-men.
Vide the Earl of Shaftjbury's Speech to Serjeant 'Thur-
land 1673.
But now the World has been fo long ufed to them, that
in all or moft Nations the particular Princes or States chufe
out the moft fage and prudent Men for that Employment.
VI. Cuftoms are Duties certain and perpetual, payable
to the King as the Inheritance of his Crown, for Merchan-
dizes tranfported from and beyond the Seas from one Realm
to another. Magna Cujiuma i^ antiqua is payable out of
A a Native
37<^ Cuffom0> Book D,
Native Commodities, fcilicety Wool, Wool-fells, and
Hides, and that is certainly impofed.
And this Cuftom, which is called Magna Cuftuma is
due to the King of common Right for four Caufes.
1 . For leave to depart the Kingdom, and to carry Com-
modities of the Realm out of it.
2 . For the Interefl and Dominion which the King hath
in the Sea, and the Arms thereof.
3. Becaufe the King is the Guardian of all the Ports
within the Realm, iS Cuftos totius Regni,
4. For Wharfage and Protedion of Merchants upon the
J. ^^^ Seas againft the Enemies of the Realm, and Pyrates.
y^y I S- yjj^ 'Pl^g Cuftom which is called Parva Cuftuma^ is a
Cuftom or Duty payable by Merchant Strangers, and begun
in the Tim.e of King Edward the Firft, when they granted
him, that they would pay to him and his Heirs Three
Pence in the Pound for all Merchandizes exported and im-
ported by them, &c. And that the Charter was, and may
be of great Ufe, I have here inferted the fame, as it was
' faithfully tranfcribed out of the Roll in the ^ower.
For Merchant SfrangerSy Pro Mercatoribus Alien!-
concerning Liberties genis de Libertatibus eis
granted to them. conceffis.
3i£/. i.rz;;^rpHE KING, to his 11 EX, jarcf)icpifc. %l
j^±.mtus. j^ ArchbiiOiops, ^c, Ja &alutem. C|cca bonum
fendeth Greeting. Concern- ffatum omnium ^iim-
ing the good Condition of 'imx fuftrcripto^um, IRepo-
all the Merchants of the rum? tlCerrauuni, $ ^roDin=
Kingdoms, Lands, and Pro- Ciarum? tiitjelicet, Alemann.
vinces under-written : That Francias, Hifpania?, Portu*
is to fay, Germany^ France^ gali^, Navarr. Lumbardia?,
Spain ^ Portugal^ Navarre^ Tufcis, Provencias, Catalo-
Lomhardy.Tufcany^Provence^ ni^ ; 9DucatU0 noftci Aqui-
Catalonia ; Our Dukedoms tann. Tholofan. Tatureini,
of Aquitain^ Thouloufe^ Tii- Flandr. Brabant, f omnium
rein, Fhjtders^ Brabant^ ^nd aliauum tcrraruni, $ to
all other Lands, and Foreign rum ejCtCaneojum qUDCUntJue
Places by what Name foever nomiue cenfeantur, Drniciv
called, coming into Our linm Ux 3Reg:mmi noftrum
Kingdom of England^ and Anglije, $ \])\mxi contjer
there remaining. faiuium*
mi
Chap. Xit CuffOttt!?.' 371
^02^ p^ecfpua Cttra folici- We being very folllcitousj
tat, qualitec futi nollco tlO= out of Our fpecial Care, that
miniOtranQUllltatl^, ^ picnc under our Dominion, a Free-
fecuritati0, immunita^ £ir= dom of Tranquillity, and full
dm 90ercatO?lbu^ futUCl^ Security for the faid Mer-
temponIJ«2^ prcparetur t Wit chants may be provided for
itaque bOta jpro^m retiDan^ the future^ fo as they may
tUC all nottca, ^ Eegnt no-- the more readily apply them-
m Uv^im pjomptio^a -, ip felves to the Service of Us,
fo^unt getitionibu? fatjoja-- and of our Kingdom, We
lijliturannuenie^,$p^oaatU graciouQy anfwering their
wiuntiem plemu0 aCTecuran- Petitions, and ordaining
JI0, in forma que fequitUC more amply for fecuring
Otninante0 fubfcripta, Um their Condition in form fol-
^ercatOinhu^ pro nobi^ $ losing under-written, are
^tmm^ mm^ m perpc- pieafed to grant to the faid
mm Wmm COncetienDa. Merchants for Us, and Our
Imprimis, mitsclicct, quoti ^f^/^.^ ^^^^- , . • . r
mu^mmtmmmum Thl?aTMerTha t^ S Zl
Kegnorum f Cerrarum r fv [rT a ? T
km $ fecure fob tuitione ^^'^ Kingdoms and Lands,
^protectionenoaralnDistmn ^'^ ^^ ^r '"^ '''^''
Eepuitt nodrum Angh^, Race fafe and ^cure under
Mliique infra potcftatcm Our Tuition and Protedion
noarmn alibt titniant cum ^"^^^^f ^^^^ Kingdom ot
a^ercljantiia^ fui^ quibuf= ^^gjf^^ji and every where
CUnque, He Muragio, Pon- within Our Dominion, with
tagio, ^ Pavagio, liberi $ their Merchandizes of what
quieti, quotique infra itiem f^I.^ f^^^^' ^?^ be unnio-
Hepum $ PottHatcm nof^ ^^^^^ ^"^ ^"5,^ concerning ^
tCUm,inCititatibu??,15ur* * Murage, t Pontage, and l^-r-^
ffi0, $ (LIiUi0 S^ercatorii^ " ^^T^^-^V-^^'i ^^^^ Y'^'"" &^^^^^^
pOtfcnt mercari, duntaxat in Our laid Kingdom and Do- || Payments.
groffo, tam cum 3|niiiffcni0 minion, they may traffick in ^
feu 9|ncoU«S emCDem mcgni, the Cities, Boroughs, and
% idoteftati^ nofire prttiiCte Market -Towns, only in
quam cum Alienigenis e;rtra= grofs, as well with Natives
.mi0 \)el prit3ati0. gta ta. or Inhabitants of this Our
men quoD, ^erccgf que tul* Kingdom and Dominion a-
gariter Mercerias tiocantur forefaid, as with Strangers,
ac Species, minuciatim Dentil Foreign and Domeftick :
poffinc, prout antea fieri con^ But fo, as their Wares, vul-
A a 2 garly
it
'iil
IlOi
372 CtlffomS* Book II.
garly called Mercery^ or the fuetJit t CEt quob omncg prj:
SPECIES thereof, they tjicti g^ercatorcjK i^trc^an:'
may fell by Retail, as for- ijiCa^ fua0 quas( ipfo^adprf;
nierly hath been accuftom- DiCtum Efgnum $ l^Otctta:
ed. And that all the faid tem noftcam atitiucere, feu
Merchants may carry, or infra iticm l^cn;num f ij^..
caufe to be carried, whither ttfl^atcm noftcam cmm^W
they pleafe, their Merchan- aU'a0 atiquirere COntipm,
dize which they have polTint quD toluerint, tam
brought into Our faid King- infra Ecjjnum f potcaatem
dom and Dominion, or o- noaramprctiiitam,quamfl:
therwife acquired, except to tra DUCere, f£U portari fe:
the Lands of the manifeft C^t^^ prasterquam ad ten^
and notorious Enemies of manifeftorum & notoriorum
Our Kingdom, paying the hofliumRegni noftri fdlDtiH» [j
Cuftoms which fhall be due, confuetutJinesfquajJtieiiEliunt, ^
Wines only exceoted, which ^^"^s duntaxat exceptis, qw
fliall not be exported out of tie cotiem IRcffno feu potef:
Our faid Kinordom or Domi- tate noftra, poaquam infra
nion, after they have been im- ^^^^ %Z^mn\, Uw Poteda:
ported into our faid Kingdom ^em liollram DUCtO taint,
or Dominion, without our Cinc l^oUmtatc nottrafta
Pleafure and efpecial Licence, tia fpcciall, non llCCat ElfJ
• by anyWay or Means what- eUUCCrc quoquo moto.
Soever. Item, ^im pretlltti ?«•'
Item, That the faid Mer- cator00, in Cltiitatilm0B«r^
chants may lodge in the Ci- gf^j pr^tu'cti^ pro toluntaif
ties, Boroughs, and Towns fyg Ijofpttari taknut, $ nifl=
aforefaid, at their own Plea- XWCX (ILIlUl0 ac CUlU to
fure, and there flay with fm'^^ aD g-ratum iptom
their Goods, to the Content quorum fuen'nt Sofpitia 01)(
of them who entertain them, liomusf.
Item, That every Con- Item, j©U0tl quiU'betCOn'JJ
tra6l made by the faid Mer- tractU0 per I'pfo^ i^ECCaro
chants with what Perfons reg CUm quibuCcuiVlue f-
foever, and from what Places f oni0, imDeCunque %iUli fii'
foever, for what kind of petquocunque,tuerint®f"
Merchandizes foever, fliall cljantliC^, initUJJ ficmUJl ^^
be firm and ftable, fo that % aalnll0 ; ita quoti neutcf
neither of the Merchants ^ercatoruni ab iUo (^011=
(hall depart, from, or go tractupoffitDlTccticrc,\3fla(i=
back from his Bargain, af- lire, pottquam denarius
tcr a Gods-fenny is given '^^^^^
i
Chap. XII. Cu(fom0* 373
inter principale^ perfona^ and received between the
COntraf)CntC0, tiatllS? fmvit principal Perfons contrad-
^meptU??. (fet (i forfan in- ing; and if it happen that
percontractUl)UjurmotiiCOn= a Contention arife on the
tmrio oriatur, fiat intie pro-- laid Contra^, there fhall be
liatl'oaUtinquiCtioCecuntlUtn a Tryal, or Inquifition, ac-
uru0 $ COnfuctUtime^ $ZVU cording to the Ufages and
arum, ^ Qlillarum IXU niC* Cuftoms of the Fairs, and
rum ilTontractum fiZti con- Towns where fuch Contrad:
tipcet, f inivU fhall be made or begun.
Item, ^COmittfmtl^ prg= item. We promife to the
toi0 me^catorifUlgi pro no« aforefaid Merchants, and for
W, $ !jeretsiliU0 nodri^, Us, and our Heirs, for ever
in perpctuum COncetientCgf* grant, that we by no means
Quod nullam prifam vel ar- whatfoever will make, nor
reftationem, feu dilationem f^iffer to be made, any Prize,
occafione prife de cstero dc or Arreft, or Detention by
Mercimomis, Merchandifis, occafion of Prize, for the fu-
feu aliis boms fuis per nos, ture, upon their faid Wares,
vel alium, feu alios, pro ah- Merchandizes, or other their
qua neceffitate vel cafu, con- Qoods bv Us or by any
travoluntatem ipforum Mer- other, o/others in any Cafe
catorumaliquatenusfaciemus, ^nd Neceffity whatfoever,
aut fieri patiemur ; nifi fta- ^gainft the Will of the faid
tim foluto pretio pro quo ipfi M erchants, without the Price
Mercatores alus hujufmodi prefently paid, for which the
mercimonia vendere poffint, f^j^i Merchants might fell to
vel eis alias fatisfadioita quod others Wares of the like
reputentfecontentos,&quod fort for, or otherwife to fa^
fuper mercimonia, merchan- tjsfy ^^em, fo as they Ihall
difas, feu bona ipforum per repute themfelves contented,
nos, vel miniftros fuos, nulla ^nd that no Appraifment or
appreciatio, aut ^ftimatio Value Ihail be put upon the
^"iponetur. faid Merchants Wares, Mer-
chandizes, or Goods, by Us
Item, JHoUmtU^, S2U0tl or Our Minifters.
omnegj Ballilii, ^ ^iniitri J^^^^^ '^'^ will, that all
if eriaruin, €it3itatum,Bur- Baihffs, and Officers of Fairs,
gorum ^ Cllillarum #erca* Cities, Boroughs, and Mar-
tOUarum, ^ercatorilm^ aiV- ket Towns, fl^all do fpeedy
telliCti0 COnquereatltm0 CO- Juftice to the faid Merchants,
^^\n Zi^i celerem juftitiam complaining to them, from
A a 3 Day
374 CtllfOttlSJ* Book II.
Day to Day, without De- facient de die in diem fine
lay, according to the Mer- dilationefecundum LEGEM
chayits Law^ concerning all MERCATORIAM,tieun(:
and every thing which by SccQ^^CnguUgjquepereani
the faid Law may be deter- tiUltt %t^zm pOtcrutlt term(:
piined. And if any Defefl naci. Ct ft forte inbenia-
fliall happen to be found in tur UefeCtUS! in aliquo f all(:
any of Our Bailiffs or Mini- torum M ^mU^imxi^p
flers aforefaid, whereby the tlltforitm IXXM litiem ^tm^
faid Merchants, or any of COre0, tieUorum ah'qui^ Di;
theirFaaorsfhallfufferLofs, IcttU^ lUCOmmotia futtinut-
although the Merchant reco- tint, ^zi fuUinucriet, \m
verhisLoiTesagainfltheParty ^^ercator \)2Cru0 partem
in the whole, yet neverthe- in pciUCipaU tecupecaDerit
lefs, the Bailiff, or other Mi- Uampna ftta, niljiloimnu^
nifters, as the Fault requires, ^UiliU!:^, \^t\ mmmM
fhall be punifhed at our Suit j ^^trfu^ iPo0, pCOUt Heliffum
and we grant the faid Pu- ^^I'Slf? puniatur, $ punitiO:
nifhment in favour of the 1^^^^ iUm COncetlimu^ (it
Merchantsaforefaid,forcom- fatorem ^ercatOtum |r^
pleating their Right. tilCtorum pro eorum juftiua
"^ ^ maturanda.
Item, That in all kinds ^^^"l^ ^""^ «'" »'"*«
of Pleas, faving in the cafe mmUS placitorum, faltl)
of Crime for which the "f» """'"'^ Pf" 1"" '«");
Pain of Death is liable to be ^}^^^ ^'^ P!"^na mottl0, ubl
inflifted, where the Mer- ^c"atOi: .inplacitatug fuc=
chant (hall be impleaded, or l-''^.^/' "''"'" •n'pJftltajJCtlt,
he implead another, of what- tUIUftUlUlueconOmontWm
foever Condition he that is ''"P'a"taru^ t;;tlU t tP
impleaded be of, whether a '^'"^t.^r.^ll'S f. 'fiS
Foreigner or aD^meftick, in ^"^^Ti .f'Tttfl
oui?whe";Sercis"M copia'a?ercatorum p«fiit=
roughs,^vherethucisaiut- ^ tcccaruill, I inqu(=
ficient Plenty of Merchants g^^^ g^^.^ j,^^^^,^^ V.t medic
of the Lands a.orefaid, and ^^ inquifitionis de eifdem
Inquifitton there ought to be Mercatoribus, & medietas
made ; half of thelnquifiticn ^j^^^^ ^^ ^^us probi. °' lega-
fhall be of the laid foreign jj^^s hominibus Lei iJiius.
' Merchants, and the other ^bi placitum illud effe con-
half of honeft and lawful ^- ^^^^ . ^^ g^^ g^jrtatO-
Men, where the Plea happens ^j, ^^ q.imtm
to be : And if a lumcjent ntiutftW
Chap. XIL CuffontiS; 375
numctU?? non (nt enatUt M-- Number of the Merchants of
fic(fn05 ponantur in Inqui- the faid Lands fhall not be
fitione illi qui idonei inve- found, let thofe be put in the
nientur ibidem, & refidui Inquifition who fhall be found
fint de aliis bonis hominibus fie in that Place, and let the
& idoneis, de locis in qui- Refidue be of other good and
bus placitum illud erit. fit Men, in the Places in
which that Plaint fhall be.
Item^ JlloIumU^:?, ®rtlf« Iiem, We will, ordain,
namttgf f i5tatUimu«;J, SI>mti and appoint, that in every
in qimliliet aiilla SQercatO-- Market-Town, and Fair of
m $ ftm Ecgni nottci ^It'- our faid Kingdom, and elfe-
tii(ti, I alio infra ^Bottfta^ where within our Dominion,
Km nottram, Pondus no- Our might is to be put in a
drum in certO loco ponatur, certain Place, and before
^ ante pOUDerationem S>ta^ weighing thereof, the Scale
tera in p^eCentia CmptO^igJ to be empty in the Prefence
^ ©ent!itO^i0 tiactia liitiea^ of Buyer and Seller, and the
tur, $ quoti bracljia fint Arms thereof to be equal •,
equalia, $ e;; tunc ^ontie- and when he hath fet the
ratur pondecet in eqtmli i scale equal, he is forthwith
turn ^tatcram poCucnt m ^-o take off his Hands, fo
tcquall, aatim amoticat ma== ^^at it may remain equal, and
m tua^ ita qiioti tmaneat ^^.^^ throughout our whole
inecquam,quodq-,pertotum Kingdom and Dominion,
Regnum & Poteflatem no- ^^^^% ^^ ^^^ ^^j 1^^ ^^^
flrani unum fit pondus & una Meafure, both of them fealed
menfura & figno Standardi ^^-^j^ ^^^ gj ^f ^^^^ S,^^^_
noftri fignentur & quod ^^^^ ^^^ ^^^^ ^^^
quilibet poffit habere State- ^^^^ ^ g^^^^ ^^ ^^^ ^^^^
ram unius Quarteroni & m- ^^^^^^^ ^^^ ^^^^^^ ^^^^^^ ^^^.
fra, m contra 2Dominiun trary to the Governor of the
loci, aut libcrtatem per j^O0, f^ia place, or Liberty by Us,
Ceu ^nrecelToregf noarojj ^^ ^^^ Anceflors, it was not
conceffam lUu^ non tuerit, ^^^^^^ ^^, ^^ ,^ ^he
rit3e contra ©lllariun aut g,,ftom of the Villages and
iFenarmn conCuetumnem ^^-^^ ^^^^^^^^ ^bferved.
5a(tenu0 DbCcrtjatam. ^ ,,, .„ ,
Item, (Eoiumu0 ^ conce-^ ^^''^^ ^"^ ^ ^^^1 ^"^\§^'^f '
Di'mus, £iuot. aliquijs certu0 ^^^^^ f^^^^ ^^f^;,"' ^^i^J^^^^^
i)omo, $ fiticli^, $ tJifcrctu^ ^"^ ^^^^^^^^ ^" ^^'^^^^ refidmg
London rcfitien^, aiBsnetur ^^ Z.W^;^, may be appomt-
Juaitiarius Mercatoribus me- eel a Juftice in behalf of ^ the
A a 4 before-
37^ Cuflomg* Book II.
before-mentIon*d Merchants, moratis, coram (Juo taleant
before whom they may plead f pccialitet placi tare, $ Detiita
fpecially, and more fpeedily fua rtcuperarc ccleriter, (i
recover their Debts, if the Slicecomftegj $ Sl^aiorejf ti^
Sheriffs and Mayors diflri- nou facerettt De tiie in tllrm
bute not to them, Day by ttltvi^ )U(tltie COmpltmm--
Day, compleat and fpeedy tum-, f llltie fiat Commldio
Jullice, that then a Commif- txtva c^artam p^cfentm
fion be granted to the afore- conccITa a^ercatorilnijs antf:
iaid Merchants, befides this tsictl0, fcilfcet, tje ijli^ qu$
prefent Charter, viz. con- Tunt inter 9l?eccatore0 |
cerning thofe [Goods] which ^tXtatm^i, fecuntium LE-
are to be conveyed between ^EM MERCATORIAM
Merchants and Merchants, tieCOUenDa.
according to the Merckmts
Law,
Uetn, We ordain and an- t^„„ /ir,rs;t.-..v.».^ * <u.
point, and our Will and ,„/''^' ®/^Sl??"'
Pleafll-e i<; for TT<; -nd nnr t""""^' * flDCtimatlOmni
l^ealiue IS tor Us and our j,jg,„ S)tatUtUm(lue proNo-
Heirs that this Ordinance bis & Haredibus noftrisin
and Statute be firmly kept perpetuum Volumus firmiter
forever, notwithftandingany ^bfervari, quol, pro quatun^
Liberty whatfoever which que ukctate q«am |oss W
we or our Heirs for the fu- \^^^^^^ ^^^^^ j/^^j^^
tore ftall grant ; the faid ton„tiemu^, pjefati m
Merchants ought not to lofe tatore^fupia-ftripta^ILitet-
their above-written Liber- tare?, tiel earutti aliquant
ties, or any of them : And npn a„,fttant. f JO fupta-
for and in conlideration of i,j-(ttjj autElJt %mmx\m
their obtaining the faid Li- ^ m.jjijt ConfuetuainiW
berties and free Ufages, and obtinentilSf, f pnljj notttitf
our Prifes to be remitted to rcmfttmlliff eiCnem fepeSilti
them: All and fingular the %rcatOrcjS UlUUerCl CnffUli
laid Merchants for them- pjo fe ^ omm'bU0 alll'Sl Je
felves, and all others on their pactl'b(I0 fui'iJ, j^oMsS tom
Part, have heartily and una- tOjDitCc f UlianiinitfC ton=
nimoufly granted to Us, that tcffcruttt quoD De qualilitt
for every Hogjhead of Wine Dolio vini quob a&tlllttnt,
which they ihall bring in, or tidatlllUCi fatl'cnt (llfra Etg'
cauie to be brought in within nuiJl $ potettateilt nottcatltj
our Kingdom or Dominion & unde Marinariis frettum
thereof; and from whence folvere tenebuntur, Colttnt
0i\»
Chap. XII. CtlRdmjft 377
'" 0hi0 $ I^cC£tiiIut$:( mflvisi they are obliged to pay
nomine Cuftumjr, tlUOS! ^o- Freight to the Mariners, to
MM W^^^^ antlQUagJ €\it!tU' pay to Us and to our Heirs,
uta^ rjelnta^, $m2D0nanisi by theNameofCuftom, two
foltl COnCuctas, nolii^ aut Shillings over and above the
alu0 infra fluatiraffinta tiiegs ancient Cuftoms due, and
poltfl[wam ej:tca il5at3e<J aU accuftomed to be paid in
Cercant pOtita fuerint tlftta Money within forty Days
tiina* after the faid Wines are puc
on Shore out of the Ships.
Item, SDc quoUkt Sac- Item, For every Sack of
CO Lana?, quem DiCti ^tt^ Wool, which the faid Mer-
cator^0, aut alii nomine ip- chants or others in their
fojttin £m£nt $ De Eegno Names do buy, and out of
nottro £tiucent, aut tmi $ this Kingdom tranfport, or
tWi facicnt, (Olbcnt qua- buy to tranfport, fhall pay
draginta Denarios tie incrc- forty Pence over and above
mentO, ultra Cu(f umant the ancient Cuftom of half a
antiquam dimidi^ Marc^ Mark, which formerly was
que pciu0 fucrat pecColuta* paid. And for a Lall of
Ct pro lado CoriOCUm ZX'- Hides carried out of this our
tra "i^zmmx $ Potcttatem Kingdom and Dominion
noftcam liefienDo^uni tJimi-- thereof to be fold, half a
tiiam^jarcam, Cupra io Quon Mark over and above that,
iX antiqua Cuduma antea which according to ancient
folljebatur ^ CEt fimilitcr tie Cuflom was formerly paid,
treccnti0 pcUilms Eanuti^, ^p^^ likewife for three hun-
c;ctca Kcgnum $ f oteua-- ^^^d Woolfels to be carried
tern noltramv Hetiucenm^, out of this Kingdom, forty
quatiraginta ticnario? ultra p^^^^^ t^^l-^des that certain
certum mun (\m i3e ami- Sum, which according to an-
qua Cuauma fuerat pnu?? ^j^^^ Cuftom was formerly
tiatum.
given.
Item, SDUDSi feolitJO0 tie Item, Two Shillings for
qualibet Scarleta, f panno every Scarlet, and Cloth dyed
tintto in gcano, in Grain.
Item, SDecem f OftO tlC' Item, Eighteen Pence for
nation tie QuoUbet panno m every Cloth, in which part of
^uo pau0 grani fuerit inter- aGrainColour is intermixed,
mixta.
Item, a)UOtiecim tienariO0 Item, Twelve Pence for
be qu9likt panno alio fme every other Cloth without
grano. Grain, Itsm^
0
378 CuttomS* Book n ^,
Item, Twelve Pence for Item, §DuDtiecim titnibL
every Quintal of Wax. tlO0 tie flUOUtet Cer^ qm'J j
And whereas fome of the Cumque tie p^efotijj 99erJ'
faid Merchants deal in other CatOCibUgJ nounulU torum
Commodities, as Goods aUagJ e;cecceattt ^ecclaniii-'
weighed with Avoir-du-pois fagJ, tt lie aUijai rebU0 futi--
Weights, and in other fine tilibujs?, Ccut tie pannis tac--
Goods, as Cloth of Tarfe, of Ten, tie feecico, tie Ciniiati?,
•7//V/«/^eA^Silk,of *C^»^^//j,ofHair, at ^era, $ m% tiiterfitf
itfiouldbe and in divers other Merchan- merctbU0, tt tie equis ctiain,
l^tT cl'/dizes, in Horfes alfo, and ac alii0 ammalibus, Blado,
^nvi/.r./;^.;' other Animals, Corn, and tt aUi0 tebugf, et %rct)an.
/>;^ ii««^. other Wares and Merchan- tiifli^ multtmotii?^, qus aH
dizes of different forts, which cettam Cuftumam fatilt
cannot eafily be put to a cer- P^^^ ^^" pOtecunt, iiHem
tain Rate of Cuftom : The ^etcatores contcfferunt
faid Merchants have con- ^^^i ^^^^^ et ^ceHite
fented to give Us and our ^o^tng ^e «jual«tet libra ar=
Heirs for every Twenty Shil- P^^^ eaimationf^ftu tw-
lings Eftimation and Value ^^^^^ ^^^""^ /^ ^^^^J^'^^
of diofe Wares and Merchan- ^^^^tum imuCmotli quocun-
dizes, by whatfoever Name ^"^ ^ ^'^^^^"^^ cenfeantur,
they be called, three Pence t res denanos de libra (nin.
in the Pound, upon the En- «0^^" ^^^»«^' * ^^^^ ^^^;;
trance of their Wares and ^^^'Ta^iP^^f JLS
Merchandizes into our King- ^"^^. j^ ?''lf ^f.fnf ^^
dom and Dominion aforefaid, ff^^ t^SflTC
withintwentyDaysafterfuch gX^^^^^^^
Wares and MerchanQizes ^/^^tettatem nottcam aD«
Jail be brought into our ^^^ ^^ ^^^^^^ ^^^,,,, eto*
Kingdom and Dommion ^^^^^^^ g^^ ^^^^^^^ f„j,
aforefaid, and there fiia 1 be ^^^^^ Et fimiliter m^ bcna«
unladen, or fold. Andhke- rio^ tic quaUbet Ubra arjcntl
wife three Pence for every ^^ etiuttione quarumCUnHUC
twenty Shillings, at the ex- xzmxi, $ Kit? erdjatiDif arum
porting of what kind foever jujm;^^^^ cmptatunt in
of Wares or Merchandizes %i^x\^ £t ^Doteffate UOttra
bought in our Kingdom and p^ctJiCtiiS, ultra Cudutlia^
Dominion aforefaid, befides antiqua^ nolu^, aut alii0
the ancient Cuftoms formerly ^^^^ tJata0- Et fuper ta-
given to Us, or to others, ui^ et rttimatione return ct
Chap. XIL CuffOttlS^ 379
^ercSannifarum ^Uf Ufmo- And over and above the Va-
W, DC (lliiim^ tre^ Denacit lue and Eftimation of the
jl0 Quallftet libra argenti faid Wares and Merchan-
CCUt pretiiCltUC Cunt Coltien- dizes : for which three Pence
Hi J crctiatur Zi0 pet Uurajs^ for every twenty Shillings as
ijua? 0e S)omini0 aut focilgf aforefaid are to be paid ;
W oUttntZtZ potetunt, Ct ft they are to have Credit by
literal non l)al3eant, ^tztut Letters, by them to be pro-
Itl 6ac parte ipforum met^ duced from their Principals
mmn fi p^eCcnt00 fuerint, or Partners, and if they have
tiel tallcttojum Tuo^um in none, let it be determined in
fOjuittiEm mercato^um ab* this cafe, by the Oaths of
fmtla I'uranunti??* the faid Merchants, or in
their Abfence, of their Ser-
vants.
Liceat (nfuper ^ntii^ tie Moreover, It may be
feocietate mercatojutn pje- lawful for the Society of
l)i(toiuni infra ISlegnum et the Merchants aforefaid, to
f otettatem nottram p^e^ fell Wool to the Fellows of
tiitfam, Eana0 tientiere aliigJ the faid Society, and likewife
fom0fuij5,etCmiliteremcre to buy the fame one of an-
ab ElCtietn abC»lue Cuttuma other within our Kingdom
foltjentia ^ tta tamen ilUOtI and Dominion, without Pay-
tiicts %m^' ati talegf manugJ ment of Cuftom : Provided
non nctieniant, quotr tie Cu^ that the faid Wool come not
fluma noblj5 tiebita tJefrau^ to fuch Hands whereby we
liemur* may be defrauded of our
Cuftoms.
Et pr^terea eft fciendum. And furthermore be it
flDuoti poaquam faspetiictl known, that after the faid
S9ercatore0 fcmel in urn Merchants have once m any
loco infra Ecgnum et f 0-- one Place within our King-
ttftmm noOtram CuSumam dom and Dominion paid our
mm COnccCCam fuperiu^, Cuftoms granted, as afore-
P^O S^ercIjauUia^ fui^ in faid, to Us, for their Mer-
fo^ma foltierint fUp^atiiCta et chandizes in form aforefaid,
fuuni Ijtlbeant intie Warran- and thereupon they have
turn, crunt llbert et quieti their Warrant, they ftiall be
in omnibus altijS lOCi0 infra free, and unm.olefted in all
Heguum et ^Oteftateni no- other Places within our King-
ftrampietiictam,tiefolutione dom and Dominion, from
Cudum^ IjUiufmoDi p?0 eiC^ Payment of the faid Cuftom
for
jSo CuffOtttjS. Book IL
for the fame Commodities or Dcm^crt^anWCjS, Utc30tv
Merchandizes by the faid cimomig^ per iUem diHarrani
Warrant, whether fuch Mer- tum, (ite SujuCmOtli mer--
chandizes remain within our Cbautiifa^ fnfca lSl£fi:nuin tt
Kingdom and Dominion, or i^Otettatem ttottram rtma=
are carried out, except Wines neant, Ci^Z tXtttiU^ tieferani
which, without our Leave or tur, (txttl^ti^ iaini^ que lit
Licence as aforefaid, are by i^fffno^PotrffatCpJCMctij^
no means to be exported out Cne tolUUtatt 2t licentia nof
of our Kingdom. tra ficut ptttiictum eft, nul:
We will alfo, and for Us, latenu0 etiucantut.
and our Heirs grant, that no Volumus autem, ac pro
Exadion, Prife or Loan, or ^^^^^ ^ Hasredibus noftris
any other Burden fhall be im- concedimus, ;©uotr nulla
pofed in any Part or Meafure ^^actio, ^cifa ttl ^^rcttatio,
on the Perfons of the faid 9"^ allQuoD aliuD Onu0 fupec
Merchants, their Merchan- perfonagf mercatojum pie^
dizes, or Goods, contrary to ^J^OJtim, tmrcSauUira^, fCU
the Form before expreffed ^^"^ to^untiem aliquatenujS
and granted. imponatuc, contra fojmam
e:rprf (Tarn fuperiujsfy $ con*
ceffam.
Witnefs hereto, the Reve- ^u^ tcttibu^ tmraMli^
rend Fathers, Robert Arch- tm ^mihm Roberto Can-
biHiop of Canterbury, Pri- tuarienfi^rcljiepifcopo tOtW
mate of all England^ fValter Angliae primate, Wakero
Bifhop o{ Coventry ^ndiLitch- Coventr. £ t Litchf Cpifcopf,
field, Henry de Lacy Earl of Henrie dc Lacy, Comite
Lincoln, Humphrey de Bohun, Lincoln, Humfrido de Bo-
Earl of Hereford and Effex, hun, Comite Hereford. &
and Conftable of England, EfTex. aC Conttaliular. Angl.
Adomarus of Valentia, Gal- Adomar. de Valentia, G&-
frid of Geynvil, Hugh de le frido de Geynvill, Hugone
Spencer, Walter de Bello de le Spencer, Waiterode
C^;?2/'^,StewardofourHoufe, Hello Campo ^tnefcallO
Robert of Bures, and others, l^ofpitll noftci, Roberto de
Given by our Hand at Weft- Bures ct alll^. 2Dat. pfC
minfter the Firft Day of Fe- xmmm noaram aputi Weft,
bruary, p^itHo \^xz jFebr,
' Upon an Information for not paying of Cuflom for Li-
nen Cloth, the Cafe was thus : The Defendants were born
within
Chap. XII. CuCOttlSf* 381
within the Realm, their Father being an Alien, but their
Mother was born here, the Queflion was, whether the De-
fendants fo born fliould pay Aliens Cuftom or not ? Becaufe
the Attorney General faid, that Diredions were lately given
in Scaccario^ that the IfTue of Aliens for the firft Genera-
tion, Ihould pay Aliens Duties ^ but here the Defendant's
Mother was Englijh^ and the Court gave Liberty to find it
fpecially -, but the Plaintiff would not infill upon it, becaufe
feme part of the Goods were clearly forfeited, for not pay-
ing any Cuflom at all, or making any Offer to pay it, fave
only by Poft-entry after Seizure, and a Month lacking 3
Days after the firil Entry of the Quantity and Parcels at the
Cuftom-Houfe. And a Verdifl pafTed for the Plaintiff for
that Part only, Hardrefs, ^^c^^ ^'^6.
If Goods are landed, and the Cuflom paid at one Port, Goods con-
and afterwards the Goods are conveyed crofs the Land, or "^^V^^^^ ^«'
bf Sea, to another Port, Cufloms fhall not be paid for JJ^di noTpay
them at the fecond Port, and that this is not within the Cuftom twice.
Stat, of 3 H» 7. cap, 7. i Sid. 264. Bruen. v. Roe,
Bancks had feized Cambricks and Hollands, becaufe they
were landed at Dover without paying Cuflom ; and it was
afterwards agreed, that the Owner fhould pay the Cuflom,
and have his Goods again, and fo it was done ; whereupon
an Information was brought againfl Banks for the Goods on
the Statute 3 //. 7 . r. 7 . and he pleaded not guilty, and gave in .
Evidence, that the Goods were entered in the Cuflom-Houfe
Book. But per Curiam^ that was no Difcharge to him for
the Mifchief j for then when Goods are forfeited, every
body will redeem them by paying Cuflom : And therefore
the Goods being once forfeited fhall be the King's without
Redemption, and the Officer is not difcharged by deliver-
ing them over, as in Trover.
The Plaintiffs were Farmers of the King of his Cufloms, Compofitiont
and the Defendants brought into Port a Ship with Goods with the Far-
and unladen, the Cufloms not paid : After they compound- porfei^'g^^
ed with the King for the Forfeiture, (which the Farmers
had not in their Grant) after the Farmers brought Debt
againfl them for the Cuflom of twelve Pence per Pound.
The Defendants pleaded this Matter in Bar ; and upon De-
murrer Judgment pro ^er, for this Reafon, becaufe the
twelve Pence in the Pound became a Duty by bringing the'
Goods into the Haven, and a Chattel vefted. By Tanjield^ this
2 Cuflom
38^
Cuffomsf>
Duty for Salt
taken as
Prize.
3 Keb. 510.
Sir John Da-
tvies in the
Cafe of Cu-
fioms»
Vide the Stat.
1 2 Car. 2. of
Tannage and
Poundage.
/
Vide in tit.
DIre£lions in
*iunnage.
Book n (
Cuftom is due, when a Ship is brought within an Haven '^
with intent to unlade there, but not when they are caft
over- board by Tempeft. Salter and Garraway ao-ainA
Malapert, i Rolls i^^p. 383. ^^^
Salt taken from a Spaniard by a Dutchman., by Com
million from Scotland., and brought into Scotland, and from
thence into England., the Duty Ihall be paid for it as Scotch
Salt : But if it had been taken by Englijh Commifllon, and
only put into Scotland., it fhould pay as Englijh or Foreign
Salt, within the Meaning of the Statutes of the 12 C«r.2
cap. 18. Se5l. 16. and 14 Car, 2. cap. ii. Se5i. 38.
VIII. Subfidy is a Duty payable for Merchandizes ex-
ported and imported, granted by A6t of Parliament for tlic
Life of the King. And are,
1. Aids and Subfidies payable out of Native Commodii
ties exported and imported.
2. Tunnage^ which is a Subfidy out of Wines of all forts j
and Poundage, which is a Subfidy granted out of all Com'
modities exported and imported, except Wines and ancient
Staple Commodities, and is the twentieth Part of the Mer-
chandize, Impofts or Duties payable for Merchandizes ra-
ted and aflefTed by Parliament ; and then they are in the
Nature of Subfidies impofed by the King's Prerogative.
The Rates are generally agreed on by the Commons
Houfe of Parliament, and are expreffed in a Book com-
monly called the Rates of Merchandize ; that is to fay, the
Subfidy of Tunnage and Poundage, and the Subfidy of
Woollen Cloaths or old Drapery, and are fubfcribed with
the Hand of the Speaker.
IX. All Merchant-Strangers bringing in any fort of
Wines, are to pay thirty Shillings on the Tun over and
above the Rates which the Natives pay, including twenty
Shillings the Tun formerly paid to his Majefty by the
Name of Southampton Duties, for all Wines of the Growth
of the Levant •, for which fort of Wines, the Stranger is
alfo to pay to the Ufe of the Town of Southampton for
every But or Pipe Ten Shillings.
Aliens are likewife to pay the ancient Duty of Butler-
age, which is Two Shillings per Tun.
Rule, That all fuch Wines as floall he landed in any of the
Out' Ports, and Cujlom paid, and afterwards brought to tht
Port of London by Certificate, fmll pay fo much won
Cuftm
i
Chap. XII. CuffOtttlS; 383
Cupm as they paid Jhort of the Duty due in the Port of
i,j XiOndon,
For every Tun of Beer to be exported in fhipping ^?/^- Direaionsia
lljb built in Money mult be paid Two Shillings : And for Poundage.
i. every Tun of Beer exported in any other Shipping in Mo-
1 ney Six Shillings.
) X. If there Ihall happen to be brought or carried out of
I this Realm any Goods liable to the Payment of Cuflom and
^ Subfidy which are omitted in the Book of Rates, or are not
{ now ufed to be brought in or carried out, or by reafon of
the great Diverfity of the Value of fome Goods could not
be rated ; in fuch cafe every Cuftomer or Colledlor for the
Time being, Ihall and may levy the faid Cuftom and Sub-
fidy of Poundage according to the Value and Price of fuch
Goods to be affirmed upon the Oath of the Merchant in the
Prefence of the Cuftomer, Colledor, Comptroller and Sur*
veyor, or any two of them.
XL Every Englijhman fliall pay for every Ihort Cloth Direaions for
containing in length not above 2 8 Yards, and in Weight ^^^ Payment
not above 64 lb. white or coloured, by him to be Ihip- ^^^^^^^^f^
ped and carried out of this Kingdom, Three Shillings Four cSoth, or old
Pence, being after the Rate of Two Farthings and half a Drapery.
Farthing p(?r Pound Weight.
And fo after that rate for all other forts of Cloths of
greater Length and Weight, allowing not above Twenty-
eight Yards, and Sixty-four Pound to a Ihort Cloth j that
is to fay, for every Pound Weight over and above Sixty-
four Pound, two Farthings and a half Farthing : And for
all other forts of IciTer Cloths to be allowed to a Ihort
Cloth -, that is to fay, every Stranger Ihall pay for every
Ihort Cloth cont, in length not above 28 Yards, and in
Weight not above 64 lb. white or coloured, by him to be
Shipped or carried out of this Kingdom, Six Shillings Eight
Pence, befides the old Duty of One Shilling and Two
Pence.
And fo after that rate for all other forts of Cloths of
greater Length and Weight -, and for all forts of lefTer
Cloths to be allowed to a fhort Cloth ; that is to fay,
Borfet and Somerfet Dozens^ Rudge-wajhed^ Cardinals^
'Pin-whites^ Straits^ Statuets^ Stockbridges, Taveftocky feven
oi each fort fhall be allowed to a fhort Cloth.
^auntons%
3^4 (^UffOtttS. Book!
Tauntons^ Bridgwaters, and Dunfiars, the fifty not ex
ceeding 64 lb. in Weight -, Devon. Dozens containing i
or 1 3 Yards, in Weight 1 3 lb. five to be allowed to a Lr
Cloth. ^°*
Ordinary Pennyftones, or For eft Whites cont. between r
or 1 3 Yards, and in Weight 2 8 Pounds, Shorting Perm
ftones cont. 13 or 14 Yards, and in Weight 35 Pounds^
feized, four to be allowed to a fliort Cloth.
) Narrow TorkJJoire Kerfies Whites and Reds, cont. no
above 17 or 18 Yards, and in Weight 22 Pound. Uam.
Jhire ordinary Kerfies, Newberry Whites, and other Kerfa
of like making cont. 24 Yards, and in Weight 28 lb. Sort-
ing Hampjhire Kerfies cont, 28 Pound, and in Weight 22
Pound ; three of them to make a fhort Cloth.
Northern Dozens, fingle forting Penny ftones cont. between
13 and 15 Yards, and in Weight c^^ Pound frized, two of
them to make a fhort Cloth.
And the Northern Dozens double, one to be accounted
for a fhort Cloth.
All which fhall go and be accounted for Ihort Cloths,
and ih^ pay after the rate of the fhort Cloth before rated,
and for over- weight two Farthings and One-half the Pound.
The new fort of Cloth called the Spaniftj Cloth, odier
wife Narrow Lift, Wellern Broad Cloth not exceeding 25
Yards in Length, and 43 Pounds in Weight, to be account-
ed Two- thirds of the fhort Cloth before rated.
And for^ every Pound Weight exceeding 43 Pounds,
Two Farthings and half Farthing the Pound Weight. '
Cloth Rafhes, alias Cloth Serges, cont. 30 Yards weigh-
ing 40 Pounds, to be accounted Two-thirds of the Ihor:
Cloth before rated.
And for every Pound exceeding 40 Pound Weight,
Two Farthings and half a Farthing the Pound Weight.
And for any other fort 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 fort of Woollen Cloth of the Old or
New Drapery, and not mentioned, is to pay Two Farthings
and half a Farthing for the Subfidy of every Pound thereof.
By the Book of Rates annexed to the Ad of Tunnage,
and Poundage 5 /. per Cent, are allowed to the Merchants
out of the Subfidy for Poundage, and 10 /. more for ready
Money :
I Chap. XIL CuffOlttiS* 385
f Money : And whereas 12 d. in the Pound' is due and pay-
able to the King for Poundage, 6 d. in the Pound more is
given by another Acl called the Additional Duty. And
whether or not 5 /. per Cent, fhall be allowed out of this
Addidonal Duty, or not, was the Queftion. Per Curiam, FapiUion, v.
t^l per Cent, ought to be allowed out of the Additional ^j'"^^^^';^^''
Duty, as well as out of the 12 d. per Pound *, for it appears 2^^^' ,^^'
in divers Places of the Book of Rates, that 6d. in the ^ ^^ ^'^ '
Pound is looked upon as part of the Subfidy of Poundage,
;/ and 5/. is to be allowed out of all Subfidies. The Book
of Rates is incorporated into the A6t of Parliament, and is
part of it, fo that whatever is there muft be taken as com-
prifed in the Body of the Ad itfelf.
Since our Author wrote, there have been fcveral fevere
Statutes againft running uncuftomed Goods -, but as it
would too much enlarge this Work to give Abltracls of
them here, we lliall do litde more than refer to thofe of
them which are moft remarkable ; the rather, becaufe the
Offences cognizable by them are moftly at Land, and
triable by the Courfe and in the Courts of the Common
Law.
By Statute 5 Geo, I. chap^ii,^. 34, ^^. If Perfons armed,
tumultuoully aflembled, to the Number of Eight or more,
Forcibly hinder, beat or wound an Officer of the Culloms
in the due Execution of his Office, they are to be tranfport-
ed, not exceeding feven Years -, and returning within that
Time is Felony without Benefit of Clergy.
The Statute 9 Geo. II. chap. 2 5- w^as a kind of general
Pardon to all Offenders concerning the Cuftoms ; it enume-
rates many Offences, and acquits ail Perfons guiky of them ;
but under fome Reftridlions, viz. any Peribn receiving the
Benefit of that A6t for any of the Offences which made him
liable to Tranfportation, will be a Felon without Clergy,
if he again commits any fuch like Offence.
And by the fame Adl three or more Perfons armed, who
alTemble to affift in running, [^c. uncuftomed Goods are
Felons, and to be tranfported for feven Years •, and return-*
ing within that Time is Felony, fans Clergy.
B b CHAP.
/
( 386)
CHAP. XIII.
SDf 3inipoQtion0 g'U'bfequent, Contiitianalj€tm=
I. Of Impofttions en the Manufac-
tures o/* France, by Lex Talionis.
II. On Vinegar, Perry, Cyder, and
Rape, Cufoms payable by Denifons
and Strangers, and hognuood
made importable,
III. On Ships that ha've not t'wo
Decks, and {6 Guns.
IV". On Salt, Beer, Cyder, Perry,
Vinegar, a further Dtity.
V. Of the Duty called Coynage,
and upon njohat impofed ; and the
temporary L/?pofiiion called the
Additional Duty.
VI. Of Goods particularly imported
by Aliens ; and Rules for petty
Cujioms, and other Matters re-
lating to Duties.
Vil. Of Aliens Cujioms on Tijh and
other Commodities, and Rates
upon the fame.
VIII. hnpofitions on Foreign Limn
and Rates on the fame.
IX. Of Nati've Commodities, and '
fuch as <were formerly prohibitid
may be t ran [ported, paying cert ait
Duties.
X. Beer, Sec. Exported; Silv,
Leather, &C. tranfportable, tak-
ing certain Duties — Bullion and
Coin only excepted.
XL Of Species importable hy attj
Nation.
XII. Of great and lejfer Offiart
Fees, and of Goods not paying one
Pound Cujiom in or out, tubei
Fees to be taken.
XIII. Voluntary Gifts from fom
ejieefned no Bribes ; and Rata a-
bout Payment of Fees.
XIV. Of Allo'wances for Jurjf
ivhat.
Subfequcnt
Impofitions to
the A61 of
Tannage and
Pounds p-e»and
the Book of
Rates.
12 Car^ 2.
This colle(Ele4
^s the Tun-
nage and
Poundage js
di reded,
} ^Car.z.ci I.
For prevent-
ing of Ffau^s,
I. rTpHERE are feveral Duties impofed fubfequent to ^
JL, the Duties payable by the Book of Rates, andl
ever and above the fame -, that is to fay, on all Ships be-
longing to the French King's Subjefls, which Ihall lade or
unlade any Goods in this Kingdom, or fet on Shore or take
in any PalTenger, or pay 20 s. per Tun : This was in Re-
turn for the French King's impofing the Value of 50 Solz
on every Englijh Ship ; this Complement lafted but three
V^'^eeks longer than the French King's \ his removed, ours
drops.
II. So likewife on Vinegar, Perry, Rape, Cyder, and
Cyder-eager imported from Foreign Parts per Englijh^ Ihall
anfwer Six- Pounds Ten Shillings per Tun -, if by Strangers,
then but Six Pounds.
But if they fhall export, then Three Pounds Ten Shil-
lings per Tun fliall be repaid to the Englijlo., and Four
Pounds Fifteen Shillings to be repaid to Strangers.
Chap. XIIL CuffOttlSf* 387
The Statute of Eliz. prohibiting the Importation of
Logwood, repealed ; and the fame may be imported, pay- H^^r.z.c.ii.
ing 5 ^' P^^ T^^" • -^^^ i^ c^^^ of Exportation, then to be
repaid 4/. per Tun.
III. The Parliament taking likewife again into confide-
ration the Encouragement of Trading in Ships of Force,
have impofed on all Goods and Merchandize imported and
exported from and to the Mediterranean Sea, beyond Ma-
laga, in any Ship that hath not two Decks and Sixteen
Pieces of Ordnance mounted, and two Men to each Gun,
to pay over and above the Rates impofed by the Book of
Rates one per Cent, This does not extend to Ships laden 14 ^^^- 2»
with Fiih, or half laden with Fifh and other Commodities, ^^f' ^^*
IV. So likewife on Salt out of Scotland into England^ One
half-penny per Gallon.
Again, there is impofed on Wines, Vinegar, Cyder and
Beer, Ten Shillings />^r Tun ; and on Brandy and Strong-
waters Twenty Shillings /)^r Tun. For the Coinage Duty,
the Monies that arife on this Duty are to be paid at the
Cuftom-Houfe to the Colledors and Officers, to be by them
kept apart from all other Monies, and paid quarterly into the '
Exchequer without Salary or Fee : The Goods are forfeit- 18 Car. 2.
able for Non-payment of this Duty ; and the fame is to be ^^^- 5-
repaid, if the Goods are tranfported within one Year.
V. There was likewife an Impofition of ill. per Tun nCar.z. f.3.
on Spanijh Wines, and 8 /. per Tun on French Wines and
Vinegar, which was but temporary, and ended the 24th of
June 1678.
VI. There are alfo Duties payable by all Aliens for P^r Aft of
Goods imported in Aliens Ships, commonly called Navi- ^^^'^ ^^ ^^2
lation Duties. the Statutes,
So likewife all Goods of the Growth, Produ6l, or Ma- and the par-
nufadure of Mufcovia or Ruffia^ and alfo of Turkey. "^'d^tk^e^u
Note., That in all cafes where petty Cuftom inward is JJJeratedthe"re"
payable, it is to be underftood of the fourth Part of the full
Subfidy, according to the Rates and Value in the Book of R^^^-
Rates, before the 5 /. per Cent, is deduced. ^ ^
iV(?/^, Wines of all forts imported are to pay Aliens Duties. ^,v, th^eTable
Note., That the Neat Subfidy of Vinegar, Ferry, Rape, of Strangers
^ Cyder, and Cyder-eager both in London and Out-Ports, is Duties upon
^ the fame with the Subfidy of French Wines, payable in ^'^^^;^ ^.^
i! l^ondon. Table of
I ^" B b 2 y II. Fmic^ Wines
388 CuflomS* Book H
AftofNavi- VII. So likewife there is a further Impofition called
KTz TiS ^^^^'^^ Cuflom for all Fifh, Oil, Blubber, Whale-bone, or
Aft of Traded Whale-fiiis, not being caught in Veffels belonging to %
i:;Car.2.c. 7. Ifjb Men, are to pay double Strangers Cuftom.
l^Ue Scat. So likewife Cullom and Impoft to be paid for feveral
Oculars' Tnu- ^^^^^ of faltcd or dried Fifli not imported in Ships En^lijh
merated. built, or belonging to England^ and not having beenftified
Rule. and caught in fuch Ships.
Upon which ACT, Note^ That the 5 /. per Cent, is not
to be allowed of the Petty Cuftom.
j2C^r,23,24. VIII. There is likewife an Excife or Impoft upon Fo-
yzzQar.2.^. reign Liquors imported; that is to fay, Beer or Ale 6 j.
per Barrel , Cyder or Perry the Tun Ten Shillings j Brandy
or Strong-waters perfectly made, 8 d. per Gallon.
15 Car.c. II. If any of thofe Goods be landed before thofe Duties be
fully paid, and Warrant figned, and without Prefenceoi
an Officer, they are forfeited, to the Informer half.
IX. There are likewife Duties im.pofed on feveral Com-
modities Exported by feveral Adls of Parliament fubfequent
to the- Ad; of Tunnage and Poundage.
^aforTrade, Coals tranfported in Englijh Shipping and Navigation
1 5 Car, 2. for his Majefty's Plantations, in lieu of all Cuftom, fhallpay
^^>' 7- Qpjy for one Chaldron of Newd-^Jlle Meafure i;, %i For
one Chaldron London Meafure i s. provided good Security
be given for landing the faid Coals accordingly.
Aa foT Til- There are likewife feveral Native Commodities and Cattle
Jage, 22 Car. prohibited by divers Ads of Parliament not to be tranfported
unlefs fold under fuch Prizes •, but non ohjiante they may
now be exported, paying Cuftorp according to the Book of
Rates.
zi,2iCar. 2. X. There is likewife an Impofition on Beer, Ale, and
20 Car. 2, Mum to be exported, to pay i s. per Tun and no more;
^^/- 5' but this is but pro tempore for Six Years.
So likewife Leather of all forts, Sheep-fkins, Calve-fkins,
to Car. 2. tanned or dvt^td^ non ohftante any former Law, paying for
^^P' S- each hundred Weight coyit, 112/. Weight One Shillingand
no more : This ended On the 25^/6 of March 1675. and
both of them to the End of the next SefTions of Parliament
after.
Aft^orTrade, Likewife all f:>rts of Foreign Coin or Bullion of Gold or
^5 Car. 2, Silver may be Exported without paying any Duty or Fee
^^/* 7' for the fame, Enti'v bcins; firil: made in the Cuftom-houfei
^ ^ "^ the
chap.xiil ctiConij?; 389
:. the like for Diamonds, Precious Stones, Jewels, and Pearls
I of all forts.
XI. All Perfons whatfoever may import from any Place Pyodam, Car.
\. beyond Sea in Englijh Ships, Mace, Nutmegs, Cinamon, ffP^'jl'^'^'l'
I Cloves into England^ Wales ^ J^rfey^ Gnernfcy^ paying the j55^'^ But fee
i Cuftonis thereof. Provided before the lading thereof they 14 Car.2.con*
give notice to the CommifTioners or Farmers of the Cu- cernmg Ca-
t ftoms, of the Quantity and Quality they intend to lade, ^^^'
with the Name of the Veflel in which they intend to import
j the fame, and procure a Licence under the Hands of the
faid Farmers or CommifTioners, or any three of them for
the importing the fame.
Notey If Goods are wrecked, and the Lord feizes them,
yet they ought not to pay Cuftom. * So held by Three ^f ^g^^g'^'^'rt
Juftices, contra. Chief Juftice I'reby^ Trin. 11 W. 3. Co.flJ'^^^l^i^^^^
PI Courtrey againft Bower. Cobhatns
Cafe. The
like not long iince adjudged in the Common Vieas (on a fpecial Verdid found at St. Ed*
mnd's'Bury in Suffolk) about Mich. 25, or Hill, 25, i^ 26 Car, 2.
XII. Fees and Allowances due and payable to the Of-
ficers of his Majefty's Cuftoms and Subfidies in the Port of
hndoriy and the Members and Creeks thereunto belonging ;
that is to fay, to the Officers of the Petty Cuftoms Out-
wards, Subfidy Outwards, Petty Cuftoms Inwards, Subfidies
Inwards •, Great Cuftoms, Clerks Fees Inwards and Out-
wards, the King's Waiters being in number Eighteen, the
Rcgifter of the King's Warrants, the Ufher of the Cuftom-
houfe, Gaugers of French Veflels, chief Searcher, and his
Majefty's five under Searchers in the Port of London ; and
the two Searchers at Gravefend^ were all (tt and entred in a
Table •, the fame was fettled by the Commons Houfe of
Parliament, and figned by the Right Honourable Sir Ed- Virtute cujuf-
ward Turner y late Lord Chief Baron of his Majefty's Court ^-^» Or^^«- ^
0^ Exchequer y and then Speaker to the Commons Houfe of^°J^^^J^'
Parliament ; at which time the Queftion being put, that ^Maijy 14.
for all Goods not paying One Pound Cuftom in or out. Car, 2. Regis,
there ftiall be but half Fees taken for all Cocquets, War-
rants, Debentures, Tranfires, or Certificates, it was refolved
in the Affirmative.
XIII. Societies or Companies trading in a joint Stock,
and making but one fingle Entry, the Adventurers being
Kiany, the Table of Fees does not hinder, but the Officers
B b 2 and
39^ CuffomsfZ Book
and Waiters may receive fuch Gratuity as the Company
voluntarily give.
All Goods under the Value of 5 /. in the Book of Rates,
paying Subfidy the Sum of 5 s. or lefs, fhall pafs withou:
Payment of Fees.
Englijh Merchants that fhall land out of one Ship at one
tim.e, (although the Receipt of the Subfidy be diftributed
into feveral Offices) fliall not pay any more than for a fingle
Entry.
The Goods of Partnerfhip to pafs as if the Propriety
were in one fingle Perfon. 41
Filh by Englijh in Englijh Shipping or VefTels Inwards or
Outwards all along the Coaft, to pay no Fee.
Poft-entries Inward to pafs without Fee under Five Shil-
lings ; if above Five Shillings, and under forty Shillings,
then Sixpence : But if the Cuftom to be paid exceed 40 j.
then full Fees.
The Merchant fliall pay for all Goods opening that fhall
be fhort entred above 10 s. Cuflom.
The Merchant fhall pay for weighing of all Goods that
fliall be fliort entred above 20 s, Cuflom.
The Merchant is not to be at any Charge, if duly entred. "
Tare and XIV. There is likewife to be allowed to the Merchants
Tret, the firft a certain Abatement called "Tare^ for Goods and Merchan-
oflheCa&^or^^^^' ^^^ ^^*^^^^^ ^^ reduced into a Table, and cannot be
Bale, or Co- deviated from in any cafe within the Port of London, with-
yering, where- out fpecial Direction of the Com mifTioners or Farmers ; or
T k°d^-^ T ^" ^^^^^ Abfence of the Confent of the General Surveyors
mher\ a^ ^ ^"^ Surveyor of the Ware-houfe, or of two of them at the
Cdnfideration leail, whereof the Surveyor of the Ware-houfe to be one ;
allowed in the and in the Out- Ports not without the Confent and Advice
^pfJing°Ld ^^ ^^^ Colledor and Surveyor : Or where there is no Sur-
refeliing the veyor, by the Colledor himlelf, giving fpeedy Notice to th;
Goods. CommifTioners or Farmers of the Reafon of fo doing.
CHAR
(391 )
CHAP. XIV.
©f ©casagc, pacfeaffe, porterage, ujater^
pojt of London, aiin piacc? laMul to lace
ana unlaoe tn^
I. Scavage, iv^^/> "where payable,
and to njohom.
II. /ST/^o /^zy the fame, and honv re-
gulated and go-verned.
III. Goods omitted in the Sca-
vage lahle of Rates J ho'w to
IV. Of Package, ho'w governed^
and <v)here payable .
V. Where Strangers fhall pay as
of old,
VI. Of Packers, Water-fide Por-
ters, nvhat Duties Strangers are
to pay for fhipping out their
Goods.
.VII. Of the Duty of Water-
Baillage-,
VIII. Of Ports, Members, and
Creeks ; nvhat are meant and
underjiood by them as in refe-'
rence to aSlion, lawful or un-
lawful.
IX. The fever al Ports, Members
and Creeks in England, and
Wales.
X. Of the Extent of the Port of
London.
XI. Of the fe'veral Yitys, Wharfs,
and other Places lanvfulfor land-
ing of Goods.
XII. What Goods are excepted,
nvhich may bejhipped or landed at
other Places.
1. OCA VA GE IS an ancient ^oll or Cuftom exadled by
Mayors, Sheriffs, ^c. of Merchant-Strangers for
Wares fliewed or offered to Sale within their Precindts,
which is prohibited by the Statute of 19 //. 7. cap, 8. in
a Charter of King Henry tlie Second to Canterbury^ it is
written feccVoinp*
The City of London ftill retains the Cuftom, of which in
an old printed Book of the Cuftoms of London it is there
mentioned, and how to be difpofed ; of which Cuftom,
Jalfcn ncl appertcgnct'^ to tie feljeciffiB?, and tlie otfiec
Salfm ti£l to tje ^^oUg??, in to^oCe ^mtz^ tje ^et--
c6ant0 bent iotJffeu \ 9nti it ij5 to toet t^at fecatage 10 t^e
fe^etD, tip CauCe tljat^eccfjantjs (tjeVoen unto tje ^IjeciSfjj
^crtt)anui?e0 of tfje loljiclj dtuttoms^ oagljt to be tafeen oje
tSat auH tljeve U folO> &c.
Bb 4
11.
392 CuffomjS* Book II.
2zH.S. c, 8. II. The Scavage that is taken confifts of two Parts, that
which is payable by Denizens, and that which is required
of AHens : And that all Perfons ' fubjed to fuch Duties
might not be impofed upon, there are Tables mentioning
the particular Duties fet up and approved by the Lord Chan^
cellor, Treafurer, Prefident, Privy-Seal, Steward, and two
Juilices of the King^s- Bench and Common- Pleas -, and by
them fubfcribed, or any four of them at leaft : The which
Duties are on Goods Inwards and Outwards.
Per Order of III. NoU, All Goods mentioned in the Table of Scavage^
K. Charles T. and not mentioned in the Table of Rates, fhall pay after
^//4'^^Lofd ^^-"^ ^^^^ ^^ ^^^ Penny in the Pound, according as they are
Binicpoflo;/- exprefTed and valued in his Majefty's Book of Rates, and
</<?«./f Earlof all others not exprefTed therein, fliall pay the fame Rates
Manche/ier, according to the true Value.
BraJpfton, Note^ That all private Baulks 8 Inches fquare and up-
and Lord wards, are by the 23d Article annexed to the Book of Rates
Littleton, reputed Timber, and valued at 3 d, the Foot, 50 Foot
making one Load, the Value of which is 12 j. 6d. and the
Subfidy for one Load -| of One Penny, or One Half-penny
and half One Farthing, out of which the 5 fer Cent, is to
be deduded.
IV. I'here is like wife another Duty called T adage ^ the
which is likewife fet and rated in a Table, and the which is
taken of all the feveral Commodities therein mentioned.
All Goods not mentioned in that ^ahle^ are to pay for
"Package Duties, after the Rate of One Penny in the Pound,
according as they are exprefTed or valued in his Majefty's
Books of Rates, and all others not exprefTed therein fhall
pay the fam.e Rate according to their true Value.
For every Entry in the Packer's Book for writing Bills to
each Entry Outward, as ufually they have done, 11 d,
V. The Strangers are to pay the labouring Porters for
making up their Goods, at their own Charge, as always
rhey have done.
Strangers are likewife to pay the V^^ater-fide Porters be-
longing to the Package Office, fuch Fees and Duties for
Landing and Shipping their Goods, as they ufually have
' done within thefe ten Years.
VI. The Packers Water-fide Porters have Tables of Du-
ties for landing of Strangers Goods, and for the Shipping
out their Goods \ and Goods not mentioned in the Table
arc
Chap. XIV. CuffomiS* 393
are to pay Portage Duties as other Goods do of like Bulk
or Condition therein exprefTed.
VII. There is another ancient Duty called Water Bail- r
W, which the City of London have received time out of
Mind, viz. for all Goods and Merchandizes imported as
well from any Port within the Realm to the Port of Lon-
iun, as from any Part out of the Realm to the fame, and
io the like Duties (with fome Variances) for all fuch Goods
as fhall be exported from the Port of London to any other
Port within the Realm, fo likewife without : Of this Duty
all the Citizens and Freemen of the City are exempted ;
and though the fame is very ancient, * and was once but * 5 July, i
fmall, in regard, within Memory, it was looked upon as an 7^-
Honour for a Merchant to be a Citizen of London, and fo ^ -^'^^^^-S?*
confequently freed ; but now, efpecially fince the late
Wars, abundance of Perfons eminent both for Honours
and Eflates being unwilling to entangle themfelves in the
publick Affairs of the City, do refufe abfolutely to accept
of the Freedom of the fame, fince which there have been i^ug. 21R.2,
great Contefls with.thofe Traders ; and though the Coaft!,"^^^^^'^^^®
Duties have been agreed to, yet the Foreign now arifing to ^.^'[ig^ ^^^.
fome confiderable Value, is highly difputed. And though thomyfol 96,
Charters, A6ls of Parliament, Common-Councils, conti- ^ 97- Reper-
nuedTra6tsandFoot-fteps of ancient Evidences and Records ^°^^ 7^* "^"^^
are yet extant to evince and make out the moil apparent z'oa. 3 Jac*
Title that may be, the fame neverthelefs labours under the ^c.
greateft Difficulty amidil the Divifions of its Proprietors.
VIII. Port, or locus puhlicuSi are thofe Places to which Partus qua
the Officers of the Cuftoms are appropriated, and which M^^^*-^ ^"^
contain and include all the Privileges and Guidance of ^^hu^exoneran-
Members and Creeks thereunto allotted. dis in/er^vit,
fed ut na<ves
ihitutum receptaculum haheanty ^ jure deb'ito ac fecuritate fruantur NaviganteSy quatenus
innocuum iter i^ Jlationem qucerunt. Hinc Partus ^ Na'valia pri'vilegio pacts publiae gau-*
dent. Arg, I. Leg. I. §. Jiationem D. de fum. cap. 2. Jur. Nautic. $usd, c. i* ^ I.
4 H. 4. 20.
Members are thofe Places where anciently a Cuflom-houfe
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
2 Importatioi>
394 CulfomiS^ BookU.
Importation without particular Licence or Sufferance from
the Port or Member under which it is placed.
Partus eft con- jx. The feveral Ports and Members as now they account
t/u/us locus guo ^ Cuftom-houfe, are,
tmportantur •' j ^ •>
merces & exportantur, /• 59. ^^ verb. Sign. Alias flat io, quod ibi tuto narves flare p^m
/eg. I. § 13. D. defium.
[
Ports.
London.
Members;
Maiden, —
ipfmch. - \ ^^^^^^^^_
Tarmouth.
Lynn Regis. J;^,.,^,,^.
Harwich,
'Woodbridge,
Aldhorough. — -
\ Southwold, " —
[^Blackney and Cley,
Wells cum Burnham.
Creeks.
Grave/end,
r Leigh.
} Burnham;
LWeJi Merfey.
rEaft Merfey,
\ Brickley.
LWivenhoe,
Maintree,
j Orford.
I Dunwick,
Walderfwick
Leftoffe.
\
Hitcham,
Crofs Keys*
Bofton.
^Spalding.
Fofdick.
Wainfleet^
\ Numhy Chapel
I Thetlethorp.
[^Salt-jleeL
r Grimsby Gaintborp*
Hull, — \ Bridlington,
I Scarborough,
N^wcff^i
Chap. XIV.
Ports.
Cuffomu;
Members.
Creeks.
Whithy.
Stockton.'
-r ni Hartlepool,
Ucwcaftle I Sunderland,
upon fyne. Shields.
Berwick, -*-
Carlijle. <
Whitehaven*
Lancafler.
Chefter, — "^
Poulton,
Liverpool
'Middlehorough,
c Seaton delaval*
i Blitb moke.
Aylemouth,
JVarnewater,
Holy IJland,
) Eaft Marches^ con-
taining the Coaft
oi Nor thumb er-
land^ bordering oil
t Scotland,
'Weft Marches^ con-
taining the Coaftof
Cumberland^ bor-
dering QXiScotland.
f Workington.
\ Ravinglas*
(^Milnthorpe.
ePyteofFowderyl
I Graunge.
f Wyrewater,
\Prefton and Rible
I Water.
'5^»^^ Bridge.
Fradjham,
South Shore of the
River of Merfey to
the Red Stones.
3J^
Chejler.
396
Ports.
Members.
Ch
Book Il| p
Creeks.
Chejter.
Aherconway,
j Bewmaris,
Caernarvon.
Conway, ^ •
Holyhead,
Pulhelly,
rAherdovy,
Milford, — -{
Cardigan.
Swanzey,
Cardiffe. -^
Hilhree.
DawpooL
Nefton.
*> Burtonhead.
Baghill.
Mojiin.
Amlogh.
Barmouth.
^Pembroke, — —
Aherujlah.
c Newport.
f Fifcard.
! Haver ford Weft.
Tenhy.
Carmarthen.
Lanelthy.
North Burrys,
South Burrys.
Neath or Briton-
Ferry.
'Newton.
SAherthofm.
Penarth.
Newport.
Chepjiow*
Clocejter.
Chap. XIV.
Ports.
Glocefier.
Members.
BriftoL
Bridgwater.-
'Minhead,
'Padfiow,
St. Ives.
Fenfance.
Gweeke,
Falmouth,
Fowey,
Plymouth, — < L<^'^^'
Penrytt,
\
Truro.
'Ilfracomb.
Barnjiahle.
Biddeford.
Exeter.
-i
Creeks.
River Severn from
Bridge-North to
King-Road^
-
rPill.
Uphill.
St. Maures.
r Saltajh.
\ Stonehoufe^
L Coujland.
I Clovellyl
c Jppkdore.
Tincomh:
Starcrofs,
Bear and Seaton*
Tap/ham.
'i Pouldram.
Sydmouth.
Lympfon.
Exmouth.
Aylmouth»
397
Exeter.
39S
Ports.
Exeter.
Cuffomu.
Members.
-i
Book Ijf
Creeb.
Dartmouih.
Lyme Regis,
Toole,
Weymouth,
t^altcomb,
jBrixham,
{jTotnes,
f Bridport^
^Charmouth.
€ Portland,
i
Lulwortb,
r Swanidge,
LWareham,
f Chrift church.
Southampton, ^
\
Hinington,
Cowes, — — —
r Tarmouth.
\
Newport,
{^Port/mouth,
r
Arundel,
Shoreham,
\
Chichefier, -{ Lewis,
Pemfey,
Hajtings,
Rye.
iHyth.
-{
Emfworth,
Pagham Point,
Selfey,
Brighthempfton,
New Haven,
Seaford,
r Winchelfea,
jLyd,
t Rumney,
Sandwich.
Chap. XIV.
Ports.
'Dover.
Members.
399
Creeks.
Sandwich. ^
(
'Rumfgate*
MargeL
Whitftahle.
Deal,
Feverjham,
Milton
.Rochejler,^
^^inhorougK
Nole, All the Ports and Havens in England are infra
Corpus Comit. and that the Court of Admiralty cannot hold
Jurifdidlion of any thing done in them. Hollands Cafe,
Earl of Exeter^ 30 H, 6. And becaufe he held Plea in the
Admiralty of a thing done infra Portum de Hull^ Damages Godhoh 260;
were recovered againll him two thoufand Pounds. ^°'-
X. In regard that the Port of London is of great Concern ^d Partus in-
in relation to the Cufloms, the Extent and Limits of the^f-^^^^*
fame Port is by the Exchequer fettled, which is declared to utilitatis gra-
extend and be accounted, from the Promontory or Point tin fit, omnes
called North-foreland in the IHe of Thanet, and from thence /«^^*^'^^^^^^^^^^
Northward in a fuppofed Line to the oppofite Promontory J J^^^^^^^^J^^^^
or Point called the Nafe^ beyond the Gun-fleet upon the c. de'oper.
Coaft of Effex, and continued Weftward through the River M^- ^''^'^^
of Thmes, and the feveral Channels, Streams and Rivers '^'''^^/j^t
falling into it, to London-bridge^ fave the ufual and known ^^;.; ^ cveai*
Right, Liberty and Privilege to the Ports of Sandwich and galls quod ex
Ipfwicb, and either of them, and the known Members nacviumftatw"
thereof, and of the Cuftomers, Comptrollers, Searchers, ^^/J^^'^g'/^
and other Deputies, and within the laid Ports of Sandwich ^/^ Regalihus
and Ipfwich^ and the feveral Creeks, Harbours and Havens accenfitur, § 2,
to them or either of them refpedively belonging within ^^•^^^'■^'^'^^.
theCounties q^ Kent or EJfex, eoL i m. 'guof
funt Regah
XI.
0!
4<^C) Cufiomsf. Book 1
XI. And in regard, that when Ships did comeuD
the Port of London^ there iifed to be very great Frau
committed by a promifcuous kind of fhipping andlandir
of Goods and Merchandizes at feveral blind or unknow
Wharfs and Keys, by reafon of which his Majefty was ofe
defeated of his Cuftoms, it was provided that a CommifTior
might ifTue forth out of the Exchequer to afcertain all fucj)
Wharfs, Keys, or other Places, as his Majefty, by virtue
fuch CommifTion, fhould appoint, in purfuance of whji
his Majefty hath been pleafed to allow to be lawful K
Wharfs, and other Places, for the lading or landing
Goods.
Brewer'' s Key,
Cbejler^s Key.
Gaily Key,
Wool Bock, ^ * The Stone Stairs on the Weft-fide there-
* Cuftom-houfe j of are declared not to be a Place for
K^' L Shipping or Landing of Goods.
Porter's Key. rf Excluding the Stairs there, which are
Bear Key, -J declared no lawful Place for Shipping
f Sa^b^s Dock. L orLandingof Goods and Merchandize.
IViggcn^s Key, C
toun^sKcy, \* The Stairs there declared unlawful for
Ralph* s Key, J Shipping or Landing of Goods
* Dice Key, [^ Merchandize.
r., '->' r C ^ '^^^ Stairs there declared no W
/'.//'', ^l \ Place for Shipping and landing
^ ' ^' t Goods and Merchandizes.
Lyon Key, f"
Butolph Wharf, \* The Stairs on the Eaft declared unlaw-
Hamon's Key. i ful for Shipping or Landing of any
* Gaunt^s Key. (_ Goods, i^c, .
One other Place betwixt Cock's Kty and
Freff) Wharf, called Part of Fup
Cock's Key, \ Wharf, the Stair? are declared to be
unlawful for Shipping or Landing ot
any Goods, i^t.
Chap. XV.
Cufioragf^
401
I frejh Wharf.
Mingfgate.
("To be a common open Place for the
landing or bringing in of Fifli, Salt,
Victuals, or Fuel of all forts, and ail
Native Materials for Building, and
for Fruit (all manner of Grocery ex-
cepted,) and for -carrying out of the
fame, and for no other Wares or Mer-
chandize,
ils only allowed for landing of any kind
of Corn for the City of Lo7tdon^ and
not upon any private or particular Per-
fon's Account.
XII. It may be lawful for any Perfon to fliip or lade into
any Ship or Veflel on the River of Thames bound over Seas,
Horfes, Coals, Beer, ordinary Stones for Building : Filh
taken by any of his Majefty's Subjefts, Corn or Grain, the
Duties being paid, and Cocquets and other lawful Warrant
duly pafTed for the fame.
So likewife Deal-boards, Balks, and all forts of Mafls
and Great Timber may be unfhipt and laid on Land at any
place between Limehoufe and Weftminfter^ the Owner firft
paying or compounding for the Cuftoms, and declaring at
what Place they will land them before he unfhips them, and
upon Licence had, and in the Prefence of an Officer they
may unlade them j othcrwife they incur a Forfeiture.
C c
C FI A P.
( 402 )
C H A p. XV.
}p>?oijtfioii0a»ti3Uot»anccjsmaiiettottDit|)ffaniitii!r
tlje federal ClauCes in ttjc 9fts fo? tljc Cufloms.
I. Cuflom to be paid for no more
than is landed i and Hxhen Bulk
Jhall he broken.
II. Of Goods Imported and Export-
ed^ nxjhat of the Cujioms Jhall be
repaid backy and by 'whom ; and
of the things requijite in the fame.
III. Of Agreement or Contrails
made, or to be made for the im-
porting and exporting by ^vay of
Compojition, ratified.
IV. What Allonvances to be made to
the Exporters of Wines.
V. Of Exporting (7/"Spanifh Wool ^
ivhere the fame may be done.
VI. Of Currans Exported, 'vjhat
Allo<vjances Jhall be made, and to
nvhom, as ivell to Denizens as
Foreigners.
Vn. Goods imported not finding
Market after a Year ', Wine ex-
ported nvhen d f charged of Cufiom.
VI I J. What Alloivances are to be
made for Leakage.
I X . What f7 all be accounted Leakage.
X. Wines pronjing unmerchantable,
njohat Allowances to be made.
XI. Tobacco's recei^ving Detriment
or Damage in the Importation,
' nvhat Allo'vjances to he made.
XII. Strangers paving double Subfidy,
ivhere theyjhall pay double Cujicm.
Xin. Of times and Places lawful
to unlade, and Officers Duties
then attendant to he prefent.
XIV. York, Nevvcaflle, and Hull
Men n.xjere Cufiom free, and for
fwhat Goods.
XV. Exeter and other Weflern Men,
n.vhat free Subfidies Ihall be al-
loixed in.
XVI. Woollen, iKihether neiv or old,
fwhat Allo<v:ances Jhall hs made in
Cufio7n or Subfidj\
XVII. Alloivances of fi^ut ,, ^l
Hundred for all other Goo^s.
XVTII. The Cufiomers and tthtr
Ofiicers Duties in reference tiu-
tend their feveral Duties in dt
Culioms.
XIX. Of Ofiicers their Duties, mi
the Punijhment nuhere mait n
Coinplaint .
X X . The fe'veral Duties of London,
honv prefer'ved.
XXI. The lika for other Citits fsr
thofe Duties granted or taken jtr
publick good Ufes.
XXII. Inhere Ships may bevifttJ,
and the Ofiicers Duty relatini tt
the fame.
XXIII. Timber to he rated, and in
nvhat manner mujl pay.
XXIV. Pre'vention in Extortintf
Cufiomers and Ofiicers, and a
<what Pains and Penalties.
XXV. Where Fees for Coquets taal
Certificates Jhall he paid all itft-
ther, and ixhere he Jhall detain
his oivn Cocquet till the Vejfelhu
broke Ground.
XXVI. Where the Ofiicers and Cu-
fiomers Jhall alloiJu and maktgud
to the Merchants the Algier Dutj
and all oiher Allowances ^ and na
other Impofition or Duty requirii
by the Book of Rates, Jhall he ri-
quired to be paid.
XXVII. If Goods fi?allhapfenti)U
taken by Enenties or Pyrates, or
^wrecked, and ivhat Allonuamtt
Jhall be paid.
XXVIII. Ships of War and ot^
pri'vileged VefiTelsfubjeSi tofearck
XXIX. Of Allowances to be maifj
and of Shipping out lejfer ^anti-
ties than are contained in the Cer
tificate, what Operation thefa"^
hath.
Chap. XV. CueotHS* 40J
EVERY Merchant fhall have free Liberty to break VUe Cap, 14.
Bulk in any Pert allowed by Law, and to pay Cuftom What are law-
and Subfidy for no more than he lliall enter and land v pro- landin^^^^ °
vided that the Mafter or Purfer of every fuch Ship fhall
firft make Declaration upon Oath before any two principal
Officers of the Port of the true Contents of his Ship's lading,
and fhall likewife after declare upon his Oath, before the
Cuftomer, CoUeSlor^ Comptroller^ Surveyor^ or any two of
them, at the next Port of this Kingdom, where his Ship
ihall arrive, the Quantity and Quality of the Goods landed
at the other Port where Bulk was firfl broken, and to whom
they did belong.
A Merchant brought eighty Tun of Bay-Salt by Sea to
a Port in England^ and out of that Ship fold twenty Tun,
and difcharged the fame into another Ship then riding at
the fame Port, but the twenty Tun were never a6lually
put on Shore, and for the reft, being fixty Tuns, the Ma-
fter agreed for the Cuftoms and put them on Land ; and CoL 12. part
I although that that twenty Tun was always water-born, and/^^- »7> ^S.
never were put on Shore, yet adjudged they ought to pay ;
the Reafon was, for the difcharging them out of the Ship
amounts as much as to the laying them on Land, the fame
being done in Port •, for otherwife the King would merely Pk^den 9,
be defrauded. But if a Ship is carried in by Storm, and fozaffa'%
to prelerve the Veflel part is landed before the Duty paid. Cafe,
jret this will not fubjedl the fame to a Forfeiture.
j II. All Foreign Goods and Merchandizes (except Wines,
\ Currans, and wrought Silks) firfl Imported, fhall be again
fii Exported by any Englijh Merchant within twelve Months^
nd fuch Merchant or Merchants as fhall export any fuch
"I Foreign Goods or Merchandizes (except as before is except-
\^ id) fhall have Allowance and be repaid by the Officer which
eceived the fame, the one Moiety of the Subfidy which
"•I «^as paid at the firft Importation of fuch Goods or Merchan-
' lizes, or any Part thereof, fo as due Proof be firft made
)y Certificate from the OfHcers of the due Entry and Pay-
■ Tient of the Cuflom and Subfidy of all fuch Foreign Goods
nd Merchandizes inwards, with the Oath of the Merchants
^importing the fame, affirming the Truth thereof, and the
S^ame of his Majefty's Searchers, or Under-fearcher in the ^
^ort of London^ and gf the Searcher of any other the Out-
C c 2 Ports,
"I
404 Cuffcmg* Book II.
Ports, tefllfying the Shipping thereof to be exported -, after
all which duly performed in manner before expreffd, the
Moiety of the Subfidy firft paid inwards, lb all without any
Delay or Reward be repaid unto fuch Merchant or Mer-
chants who do export fuch Goods and Merchandizes, within
one Month after Demand thereof, as alfo the whole addi-
tional Duty of Silky LineUy and Tobacco^ as before is
directed.
tutirj. 215. If the OiTicer fliall refufe to pay, (admitting there was no
221- Relief had by way of Complaint) whether the Merchant
14 ^- 7- Exporter may not bring an A6tion againfl him upon the
Debt created in Law, as he that hath a Tally may do *.
* Hohart 270. III. And if there be any Agreement now in force, which
Rolls Abridg. was formerly made by the late Commifiioners of the Cuftoms
5 99- and Subfidies, with the Merchants Strangers or their Fadors,
or fliall hereafter be made by any Commifiioners or Farmers
of the Cuftoms and Subfidies, or any other Power, (except
by Confent of Parliament) with any Merchant or Merchants
Strangers or Factors for any Foreign Goods and Merchan-
dizes, to be brought into the Port of London^ or any other
Port or Haven of this Kingdom of England^ or Principa-
lity of Wales ^ and to be exported again by way of Compo-
fition ; all other Merchants being his Majefty's Subjeds
fhall be admitted into the fame Compofition, and not be
excluded from any other Privilege whatfoever granted to
the Stranger by any private Agreement or Compofition,
under the fame Condition and with the fame Rellridionas
ihall be made with the Merchant Stranger.
IV. Every Merchant, as well Englijh as Strangers, that
fliall fliip and export any kind of Wines, which formerly
have paid all the Duties of Tunnage inwards, fhall have
paid and allowed unto them all the Duties of Tunnage paid
inward, except to t\\Q Ejiglijhmen los^perTuu^ 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.
ii<'.ar. 2. v. If any Merchant, Denizen, or Stranger, fhall export
'■'• 32- ' any Spa?iijh or Foreign IVool^ he fliall have Liberty ^0 to do,
i[4C«,t. 2. ^.^j^ ^j^.^ further Condition, that fuch Spanifi or other Fo-
reign TFools whatfoever be not exported in any other Ship
or VefTel whatfoever, with intent to be arrived beyond tl.
. Seas out of the Kingdom of England, and Dominion ot
Chap. XV. Ctlffamt?* 405
JVales^ than only in Englijh Shipping, upon Pain of Con-
fifcation.
VI. Every Merchant, as well Englijh as Stranger, which
{hall fiiip or export any Currans which formerly were duly
entered, and paid the Subfidy and Cuftom inwards, fhail
have allowed and repaid unto them refpe6tiyely all the Cu-
ftom and Subfidy paid inwards for the fame, except is. 6d,
for every hundred Weight to the Englijh^ and is. Sd. and
One-halfpenny for every hundred Weight to the Stranger,
upon due Proof of the due Entry, and Payment of the Cu-
ftom and Subiidy thereof inwards, and of the Shipping'
thereof to be exported to be made as in the fecond Article.
VII. If any Merchant, having duly paid all Duties in-
wards for Foreign Goods, and in regard of bad Sale fhall
be enforced to keep the fame, or any Part thereof in his
Hands, after the Space of a Year fhall be elapfed ; in this
cafe he or any other Perfon is to be permitted to fliip the
fame out for Parts beyond the Seas, if they think fit, with-
out Payment for any Subfidy for the fame outwards, upon
due Proof that the fame was duly entered, and Subfidy paid
inward.
Vill. Every Merchant bringing in any fort of Wines
Into this Kingdom by way of Merchandize, and iliall make
due Entries of the fame in the Cuflom-houfe, fhall be al-
lowed 1 2 per Cent, for Leakage.
IX. Every Hoglhead of Wine which fhall be run out,
and not full feven Inches, fliall be accounted for outs, and
the Merchant to pay no Subfidy for the fame.
And by fome its conceived, that no Freight Ihall be paid Boycewrf.
for the fame, but the Merchant may fling them up to the Cdefen. ^
Mailer for Freight; but that fhould feem hard, for non ^'l//l"' Car-
conftat any Fault in the Mafter, but the fame may be in the ^.^vi b. R, '
Calks, or in the ill flowing (the Mailer by Cuflom having
■hb Charge of the Stowing of Whines, elpecially Frentb, but
tte fame belongs to certain OHicers beyond Seas, from
whence they are imported) befides the Goods^ be they empty
or full, take up Tunnage in his Ship -, and fhould all the
Wines on Ship-board have the fame Misfortune, it would
feem hard ; however, it is pity Opinion in this cafe fliould.
;iatoount to a laudable Cuflom.
X. If any Wines fhall prove corrupt and unmerchant-
able, and fit for nothing but to diflil into hot Waters, or to /
C c 3 ' make
406 CuffomS* Book IT,
make Vinegar, then every Owner of fuch Wines lliall be
abated in the Subfidy, according to fuch his Damages in
thole Wines, by the Difcretion of the CoUedors of the Cu-
floms, and one of the principal Officers.
XL If any I'ohacco or other Goods or Merchandize brought
into this Kingdom fhall receive any Damage by fait Water
or otherwife, fo that the Owner thereof fhaJl be prejudiced
There is a in the Sale of fuch Goods, the principal Officers of the
Book at the Cuftom-houfe, or any two of them, whereof the Colleftor
i?whTchthe;e *or the Time being to be one, ffiall have Power to chufe
is a oeneral two indifferent Merchants experienced in the Values of fuch
Valae fet on Goods, who Upon vifiting of fuch Goods, fhall certify and
all Goods ; (declare upon their Corporal Oaths firft adminiftred by the
Tobacco^is^ * ^^i<^ Officers, what Damage fuch Goods have received, and
there valued, are lefTened in their true Value •, and according to fuch Da-
mage in relation to the Rates fet on them in the Book of
Values, the Officers are to make a proportionable Abate-
ment unto the Merchant or Owner of the Subfidy due for
the fame.
By an A6b 12 Anne c. 8. §. 8. There is to be no Allow-
ance for damaged Tobacco -, but the Merchant refufingto
pay the Duties, fuch Tobacco is to be burnt.
Nor can fuch XII. All Merchants Strangers, who, according to the
Merchants Rates and Values fet in the general Book of Values and
thetr Goods R^tes, and do pay double Sublidy for Lead, Tin, Woollen
before they Cloth, fhall alfo pay double Cuilom for Native Manufac-
have agreed tures of PFool ', and the faid Strangers are to pay for all
ftoms not- ^^^'^^ Goods, as well inwards as outwards, rated to pay the
withftandi'ng Subfidy of Poundage, three Pence in the Pound, or any other
Charta Mgr- Duty payable by Charta Mercatoria^ befides the Subfidy.
(uioria, y^\S\. That the Merchants trading into the Port of L^/J-
don^ have free Liberty to lade and unlade their Goods at
any lav/I\il Keys and Places of Shipping and lading Goods
between the Toiver o^ London and London- Bridge^ and be-
tween Sun-rifing and Sun-fetting from- the Tenth Day of
September to the Tenth Day of March ; and between the
Hour 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 there-
fpedive Officers appointed to attend the lading and unlad*
ing of Goods •, and fuch Officer as fhall refufe upon due
Calling to be prefent, be fliall forfeit for every Default 5/.
tlK
Chap. XV. Cuffoms?. 407
the one Moiety to the King, the other to the Party aggriev-
ed, he filing for the fame.
XIV. The Merchants of Tork^ Klngflon upon Hull^ and
J^ewcajile upon "Tyne^ and the Members thereof, fhall be
allowed free of Cuftom and Subfidy two of the Northern
Cloths and Kerfies in ten to be Ihipped in thofe Ports in the
Name of 'Double Wrappers^ as formerly has been there al-
lowed them.
XV. The Merchants of Exeter and other Weftern Parts
fhall be allowed free of Sublidies one Perpetana in Ten for
a Wrapper y and three Devons Dozens in Twenty for Wrap^
pers^ the fame to be fhipped out of the Ports of ExeUr^
Plymouth y Dartmouth^ Earnfiahle^ Lyme Regis ^ or the
Members thereof.
XVI. All Merchants tranfporting any fort of Woollen^ Kote, That all
whether new or old Drapery, as alfo all Bayes and Cottons^ ^^ff^ ieveral
Ihall be allowed one in Ten for a Wrapper free of Cuftom , ''^^^t^u,?
rr are not Dy
and Subfidy. AaofPar/ia-
XVII. Every Merchant fhall be allowed upon all other ^^«^ but
Goods and Merchandize appointed to pay to any the Sub- ?^^ 7 nisma-
fidy of Poundage, according to the Rate in the Book of Jf^s^arxf vo-"
Values, to be imported five in the Hundred of all the faid Umtary Gift
Subfidies of Poundage fo appointed to be paid. ^"^ Benignity
XVIII. The Officers who fit above in the Cuftom-houfe fj^^'raging
of the Port of London, fhall attend the Service of their the Merchants
feveral Places from Nine to Twelve in the Forenoon, and and Trade,
one Officer, or one able Clerk, Hiall attend with the Book
in the Afternoon, during fuch time as the Officers are ap-
pointed to wait at the Water-fide, for the better deciding
of all Controverfies that may happen concerning Merchants
Warrants, all other the Officers of the Out- Ports fhall at-
tend every Day in the Cuftom-houfe of every refpeflive
Port for Difpatch of Merchants and Ships, between the
Hours of Nine and Twelve s and Two and Four in the
Afternoon.
XIX. Every Merchant making an Entry of Goods
cither inwards or outwards, fhall be difpatched in fuch order ,
2ls he Cometh ; and if any Officer or his Clerk, fhall either
for Favour or Reward put any Merchant or his Servant duly
attending and making his Entries as aforefaid, to draw any
other Reward or Gratuity from him than is limited in the
A61 of Tnnnage and Poundage, and the general Book of
C c 4 Values,
4P8 CuffomS* . Book II.
Values, if the Mafter Officer he found faulty herein, he
Ihall, upon Complaint to the chief Officers of the Cuftom-
houfe, be ftridly admoniflied of his Duty •, but if the Clerk
be found faulty therein, he fhall upon Complaint to thefaid
chief Officers be prefendy difcharged of his Service, and
not permitted to fit any more in the Cuftom-houfe.
XX. The Lord Mayor, Commonalty, and Citizens of
the City of London^ their Officers, or Depudes for and
touching Offices of Package^ Scavage, Baleage or Poriqe
' 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 Farts beyond the Seas, for or
concerning the receiving or taking of any Fee or Rates
heretofore ufually taken, for or in refped of the faid Of-
fices, or any of them, might and may receive and take the
fame, any thing in the A61 of Tunnage and Poundage, or
any other A61 or Thing to the contrary notwithftanding.
XXI. All ancient Duties heretofore lawfully taken by
any City or Town Corporate, their Farmers, Deputies or
Officers, under the Name of Town-Cuilom, or the like, for
the Maintenance of Bridges, Keys, Flarbours, Wharfs, or
the like, fhall and may be received and enjoyed as formerly,
any tfiing in the faid Ad, or any other A6t to the contrary
in any v/ife non ohjlante.
XXII. The Under-Searcher or other Officers of Gravtj-
end have Power to vifit and fearch any Ship outward bound,
but fhall not, without jufl and reafonable Caufe, detain any
Ship under Colour of fearchins: the Goods therein laden
above three Tides after her Arrival at Gravefendy under
Pain of Lofs of their Office, and rendering Damage to
the Merchant and Owner of the Ship ♦, and the Searcher or!
Officer of the Cuilom-houfe in any of the Out-ports having
Power to learch and vifit any Ship outward bound, M
, not without juft and reafonable Caufe detain lucli Ship,
pnder Colour of Searching the Goods therein laden, above
one Tide after the faid Ship is fully laden and ready to fet
fail, under Pain of Lofs of the Office of fuch Offender, and
rendering Damage to the Merchant and Owner of the Ship.
XXIII. All Timber in Balks, which fhall be of eight
Inches fquare and upwards, that fhall be imported or
^ ^rpuglit from any Pari beyond the Seas into the Realm af^
[5
:hap.xv. €ul!cm«s* 409
^Mla>id, Dominion of Wales, Port and Town of Berwick^
)r any of them, Ihall be rated according to the Meafure
)f Timber, the Foot fquare 3 d. for the Value thereof, and
iccording to that Rate fhall pay for Subfidy 12^. in the
I Pound according to Poundage -, and all under eight Inches
fquare, and above five Inches fquare, fhall pay for Subfidy,
according to the Rates mentioned in the Book of Rates for '
niddle Balks, and all of five Inches fquare or under fhall
pay according to the Rate of fmall Balks.
XXIV. For avoiding of all Oppreflions by any the
Officers of the Cufloms in any Port of this Kingdom, in
exafting unreafonable Fees from the Merchant, by reafon
of any Entries or other wife touching the Hiipping or un-
fhipping of any Goods, Wares or Merchandize, it is or-
dered that no Officer, Clerk, or other, belonging to any
i Cuflom-houfe whatfoever, fhall exadl, require, or receive
i any other or greater Fees of any Merchant or other what-
j foever, than fuch as are or Hiall be eflablifhed by the Com-
mons in Parliament affembled : and if any Officer or other
offend contrary to this Order, he fhall forfeit his Office and
Place, and be for ever uncapable of any Office in the
Cuftom-houfe.
XXV. All Fees appointed to be paid unto the Cujlomery
Comptroller^ Surveyor, or Surveyor General in the Port of
London, for any Cocquets or Certificate outwards, fhall be
paid altogether in one Sum, to that Officer from v/hom the
Merchant is to have his Cocquet or Certificate above in the
Cuflom houfe ; and after the Merchant hath duly paid his
Cuftom and Subfidy, and other Duties above in the Cuflom-
houfe, as is appointed above by the Book of Rates, he is to be
Mafter of and keep his own Cocquet or Certificate, until
he (liall fhip out his Goods fo entered, when as he is to
deliver the fame to the Head Searcher, or his Majefty's
Under Searcher in the Port of London or other Ports^ to-
gether with the Mark and Number of his Goods. '
XXVI. The Officers of the Cuflom-houfe for the Time
being, fhall allow and make unto all Perfons all fuch Mo-
nies as are or fhall be due unto them for the half Subfidy,
and alfo the Algier Duty of Foreign Goods formerly ex-
ported now due and unpaid. v
The Duties and Sums of Money appointed to be paid by
the Aft of Tunnage and Poundage pafTed this Parliament,
and
C. II
410 CuRomiS. fiooicii.
and by the Book of Rates therein mentioned, and no other
Ihall be paid to his Majefty's Officers during the Continu'
ance of the faid Ad: upon Goods imported and exported
any Law, Statute, or Ufage to the contrary notwithftandl
ing. Neverthelefs the Duty of Prizage and Butlerage^ and
the Duty of 12 ^. of every Chaldron of Sea-coal exported
from Newcaftle upon 'J'yne to any other Port or Ports of this
Realm, fhall be continued.
27 Ed. 3. cap. XXVII. If any Merchant Denizen born fhall happen to
13. izCar. 2. }|ave his Goods and Merchandize taken by Enemies or Py.
^^P' 4- j-ates at Sea, or perilhed in any Ship or Ships, the Duties
being either paid or agreed for, upon due Proof thereof,
may Ihip out of the fame Port the like Quantity as fhall
amount unto the Cuftom without paying of any thing for
the fame.
If the Importer Jhall pay ready Money ^ be Jhall be allowd
10 per Cent, for fo much as he fhall pay down.
14 Car. 2. XXVIII. Ships of War may be entered and fearched for
prohibited and unaccuftomed Goods, and to bring them
afhore to the King's Warehoufes, and the Commiflioners
or Head- Officers may leave aboard Officers to look after
them, that none be unladen or embezzled, on Pain of For-
feiture of 1 00 /. And if Goods are concealed on Ship-board
after fuch time as the Ship is cleared, to forfeit 100/. and
then any with a Writ of AfTiftance out of the Court of £)f-
chequer to go in the Day-time to any Place, and enter and
feize.
Goods conveyed fecretly into Ships, and carried away
without paying the Subfidy and Duties, the Owners and
Proprietors forfeit the double Value, except Coals, which
J only forfeit the double Cuftom and Duty.
XXIX. There are Allowances to be given Merchants
for defective and damaged Goods of 5 per Cent, on all
Goods imported, and 1 2 per Cent, on all Wines to be al-
lowed upon Debentures ; but if they fhall fhip out lefsthan
is in the Certificate, then the Goods therein mentioned, or,
the Value thereof, fhall be forfeited, and the Owner or
Merchant fhall lofe the Benefit of receiving back any of the
Subfidy : And Goods fhipped out are not to be landed
again in England^ on Pain of Forfeiture of thofe Goods.
All Goods coming out of, or carried into Scotland, by
Land, fhall pafs through Berwick or CarUfle^ and pay Cu-
ftom as others, on Pain of Forfeiaire. And
t
[ Chap. XV. CuffOtttdv 41 1
^ And although that by this Acl there are many Allow-
[ anccs to be made, efpecially to Merchants Denizens, yet the
Padiament have ever been fo careful as to bound the fame,
! that is, it fhall be to fuch who traffick in Ships ; (which are
1 indeed the Bulwark of this Iflej and therefore if fuch Mer-
I chandize fhall be tranfported out in any Galley or Carack,
they are obliged to pay all manner of Cuftoms, and all
manner of Subfidies, as any Alien -, but in regard that Her-
ring and Fifh are, and have been accounted, one of the
principal Commodities, and generally finds a Vent or Mar-
ket in thofe Kingdoms and Countries that ufually employ
fuch fort of VefTels, thofe Commodities may be tranfported
in them as well as Ships from any Port or Harbour withia
this Realm, without paying any Subfidy or Poundage for
the fame j but then fuch Fifh muft be taken by the Natives
of the Kingdom, and tranfported by them, otherwife to pay
as Aliens.
And whereas all manner o^ Woollen Cloths, as well white
as coloured, unrowed, unbarbed, and unlhorn, and not
fully drefled, are prohibited by Law to be tranfported, His
Majefly was gracioufly pleafed to grant * unto Frances * P^^ Letters
Countefs of Portland, as well for her Alliance in Blood, as ^f^^olte^^"^'
alio for the many CrofTes and Calamities which fhe hath 2^h of Feb.
fuflfered by the Lofs and' Death of her neareft Relations in 27 Car, 2.
his Majefly's and his Royal Father's Service, full Power for
one and thirty Years, to licence the tranfporting of fuch
Goods ncn ohftante fuch prohibitory Laws ; the which is
now put in Execution by Agreement, and the Compofition
with her Deputies at the Cuflom-houfe.
CHAP.
( 412 )
'.■^I
CHAP. XVI.
£)f tl3e Etgljt Of paffage : €)f impoang ontiie
pcrfons aiiii iS5oo5s of S^ttangers fo? §{\m
tljjoiifflj tlje ©eas^
I. 0/ />^^ T^/g-^/ ofharmlefs Utility IV. ^ P^jf^j?^ admitted, wmTF
excepted tacitly in the primiti<ve Tribute or Toll ;wajp be impcJU. p
n — j-;.^ ./•.TZ.;^^. y. ^^^r^ Impojiiion may IumT'
be laid, and for ivhat Cav'tiA
And of the Kings Prerogatl^i n I
that Point. I
VI. Whether lanijful to flay /, ».
Dominion of Things.
II. Where Paffage ought to he open,
and tohere the fame might be ijn-
plicitly pro<vided for in thefirfi In-
Jiitution of Property, and under
ivhat Cautions.
JII. Of the fame Right in reference
to Goods and Merchandize,
thers Country, and to builifur
Seafon,
I
I
I. T TAVING In the foregoing three Chapters obfered
X JL fomewhat of Cnjioms and Iwpofttions l^iiddefa^t
within the Realm, and tliat by Acls of Parliament, or the
Confent of the three Eftates, it may not feem amifs to in-
quire what Impofition the King of his Prerogative mayim-
pofe on Strangers and their Goods paiTing through his Terri-
tories and Seas ; and in that to inquire of the fameinrefe
rence to Perfons and Goods.
Befides the Right of NecefTity which feems to be except-
~ ed in the firft Inibtution of Dominion, there is another Re-
lique of old Communion, namiely, the Right of harmlefs
Cic.de Offic.i. Utility : For why Jhctdd not one (faith Cicero) when witku:
bis own Detriment he may^ communicate to another in thoji
things that are profitable to the Receiver^ and to the Gktr
Sen.deBenef.4^. not chargeable ? Therefore Seneca faith, // cannot he cala^
Sympf. 7. a Bencfa to give leave to another to light his Fire by yours.
We read in Plutarch^ it is not lawful to fpoil our Viduak
when we have more than enough, nor to flop, nor hide
a Fountain, when we have drunk our Fill \ nor to aboliOi
the Way-marks either by Sea or Land, which have been
ufeful to us : So a River as a River is proper to that ?r/«ff,
7,. ^vw ♦« or that Lord^ or that People^ within whofe Dominion c
J), de rer, di- Royalty it runs, and they may make a Mill on it, (iin.eis.
'^U'- be common, as a High-way) and may take what Fifli '"^
M
i
:hap. XVI. ©fpaffagev ^ 413
Liver yields, but the fame River as a riianlng Water re-
^nained common as to drinking or drawing of it, notwith-
tanding as to the Fifhing, and the like, it may be peculiar.
II. Again, Lands, Rivers, nay, if any part of the Sea
}e come into the Dominion or Property of any People, it
f)llj)ught to be open to thofe that have need of Paflage for juft Bal^. 3. con/.
Zaufes, namely, being expelled by Force out of their own 293.
Country they feek void Places, or bccaufe they defire Com-
nerce with remote Nations : The Reafon here is the fame
which hath been mentioned * elfewhere, becaufe Dominion * Lih i. c.i»
] might be introduced with a Reception of fuch Ufe f which §• 3» ^ 4-
profits thefe, and hurts not thofe ; and therefore the Au- J^*^^^^^^^/*
thors of Dominion are to be fuppofed willing rather to have rogamus imo-
it fo, than that fuch a Reftridlion, which perhaps in the cuum, cujus ^
end may deflrcy Society : However this hath its quantum \ '^^^dicatio.^it,
for though harmJefs Pallage may be excepted in the firft In- ^^erl. "^
ftitution of Dominion, yet that is to be underftood when
Leave is granted : And thouo;h Fear of the Multitude, which
is to pafs, cannot take away that Prince his Right through 1 ^ , u ^^
whofe Territories or Seas they go ; yet it follows as natu- man go'mg to*
rally, that in the Inftitution of fuch Liberty that Prince or aid the Lace-
People may provide, and if they have any probable or any ^^/"onlam, led
reafonable Caufe, interdict the Paflage till Security or Hof- rovLcrhCorLtl'
tages are pledged for their peaceable Paffage, nay, without but being re-
declaring their Reafon, may interdid; them abfolutely any prehended by
manner of Paffage, if there be any other way to pafs in '^^ Conntht-
Safety -, and therefore at this Day, by the Laws of Eng- aiking Leave
land*y the King m.ay interdid: any Nation or People what- of the City :
foever to pafs through his Seas without Leave nrft obtained ^^^ ^ 9^^
to that Purpofe, and may vifit all Ships, be they of Y^zv^''"f ''''''.
or 1 rafficK that mail occur or be m the lame. tratnifidomini
permijfu : at
'VoSf inquit, Clioneorum iff Magarenjium fores non pulfajl'is fed perfregijiis confentes omnia
fatere debere plus <valent:bus. However, PaiTage is and mull be requelled ; but in lieu
of that, the ilriking of the Flag, and lowering the Top-fail, is in Token of that Right
due to his Majefty in the Britijh Seas. * Fide lib. i . cap. 4. and SeldenV Mare Claufum,
III. Nor is Paffage only due to Perfons, but to Mer-
chandize alfo ; for no Man hath Right f wilfully to obftrud t That is, by
the way of Commerce to any Nation with any other that is ^^^ Laws of
remote, becaufe the PermilTion of Trade is for the Intereft ^^^ Laws of
of human Society, and is not difcom mi odious to any one. Nations and
and to that Purpofe Philo fpeaks : On ths Sea all Ships ^/ thofe (iCoun-
4H Cuffomg* BooKlj
In Legaf. Burdcn fdfely pafs according to that Right of Commerce wk'
Latum. • ^^ between all Nations arifing from the Befire of natural s]
ciety, while they fupply one another mutually with what
i
one wanteth^ and the other can fpare \ for Envy hathnev
invaded either the whole Worlds or the greater Paris tbcrt^
^iomodo au- of. And Plutarch fpeaking thus of the Sea : ^his Elernait
tern fat i s digne ^^/^ ^^^^^ q^^ Life fociahk andperfe5i^ that otherwife wouldl
Tacilitaumad ^^ '^^^^ ^^^ without Corrcfpondence \ it fupplies our Wmt L
muiua Com- '^l^h mutual Aids^ and by Exchange of Things needful^ jtp^ '^''
mercta nobis curcs FcllowfJoip and Fricndfhip. And the Wifdom of God
datam ? Ae jg highly to be admired, who hath not granted all things to
iTngitudo iln- ^very Land, but hath diitributed his Gifts to feveral Coun-
fedlmentum tries, that Men having need of one another, might main- {"
^liorum ad tain Society for their common good ; therefore hath he en- T
ItlZIfTret dowed Man with Knowledge and Underftanding to invent
hr.e'viorem ^i- ^nd build Ships, to govern and guide them by thofe Lamps
am, maris of Heaven, and other Inftruments of his Divine "Wifdom,
fcihcet, uhq; enabling thereby the Merchant to convey to all what any
tojuitDeus,ad E^^^^c afFords : According to that of the Poet,
mundum tan-
quam domum What Nature any Land denied^
/Xw^ ■ By Navigation is Supplied.
crsbro i/fvicem
in^iferifnus ; ^ apud fe nata quifque alteri communicans <vidjjlm, commode accipirtl rit
apud ilium abundantes ; ac Jic exiguam tenens terns partem, ita tanquam ft tenmt wmtx'
fam, frueretur eis qui^ orbis funt bo7iis. Licet itaq tunc tanquam in communi menfa en-
'vi'varum unicuiq; ea quajtbi oppojita dare alteri longius accumbentif ac contra qua a^
ipfum funt accipere manu. tantum extent a.
But as the Sea is free and open for Traders, yet never-
thelefs the Paffengers are fubjed to fuch Reftridions, Laws
and Ordinances, as thofe Sovereign Princes ihall make of
Force in thofe Places where they have an Acceflion of Pro-
perty or Sovereignty.
IV. But admitting that fuch free Paffage may be grant-
ed, as above, whether Tribute may be impoied by him
that rules the Land, upon Merchandize paffing by Land or
by River, or by part of the Sea, which may be called an
Accefiion of the Land, Cthat is, the Place through which
they pafs, is as much under the abfolute Jurifdidion ot the
Prince, as the very Land itfelf :) certainly whatfoever Bur-
VideStraho. dens have no Relation to the Merchandize, no Equity fur-
lib. 8, ^ lib, fers the fame to be impofed on the fame j neithe; can PoH-
10' , Money
'00
'ct
4
0
I
Chap. XVI. €l\t!toms: 415
Money put on the Inhabitants to fuftain the Charge of tht
Commonwealth, be exaded of PafTengers.
V. Neverthelefs, if either to fecure the Paflengers Goods
and VefTels from Pyrates and others, or for the erefting of
Beacons, Light-houfes, and other Sea-marks, and fuch
like, * there indeed fome Compenfation may be laid upon * 1 3 //. ^.fiL
the Commodities or Ships pafiing through, fo that the Mea- H-
fure of the Caule be not exceeded ; or as my Lord Coke ob-
, ferves in the Cafe of the Halage-money, f it be reafonable •, t Li^- 5. fs/.
for upon that depends the Juitnefs of Tributes and Toll : ^3- Cafe of
And upon thofe Reafons the Venetian in the Adriatick^ the bedai/^*
King of Denmark in the Baltick Sea does demand the fame ; London,
and the King of England may do the like in the Chambers y^^ ^.j^^ pt
of his Empire, and that by his Prerogative ; for the fame ohheFenetiaa
is not fo much compulfory to any to pay, but to them that Lawyers at
will take Benefit of fuch Accommodation. !^® ^"^, f,
-^ Mr. SeUens
MartClaufum
%t^ doimm p^afont que lou It Eo? ttg m^smim^
tie long tcmp0 Jaut ettre Jbti^nmc tit S^tr, $ o^e ett Dcnugf
que U Eo^ feeigneuc X^t0 Co(f0 tie amtiitieuc partejs tirf
^er, I par ceo p^aiont le IRop tie impoCer un impoCtion
fur (Eftranffergf patCant purmg la ^er*
Straho relates, that the Corinthians, even from the mofl Pereg. Uh. t.
ancient of Times, received Tribute of the Commodities, ^^ J^^' ^^fi^*
which to avoid the compaffing of Malta, were carried by ^* '* ^^^' ^'^'
Land from Sea to Sea. So the Romans received a Price for
the Paflage of the Rhyne. But this Right of impofing on
Ships and Goods pafling through fome Territories, is found
cruel, efpecially when they muft pafs through the Territo-
ries 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.
VI. Again, to ftay fome time for Health Sake, or for
any other juft Caufe, ought alfo to be permitted to PafTen-
gers, for this too is among the innoxious UtiUty *, where-
fore Illoneus in Virgil, * when the Trojans were prohibited * Servius ad
to flay on the Shore of Africk, is bold to invoke the Gods eum he,
as Judges : And the Complaint of the Megarenfes againft
^^^ Athenians, who drove them from their Havens f againft f Plutarch
common Right, was approved by the Greeks, fo that the P^ricle,
l^cedamonians efteemed no Caufe to create a War more
a juft:
4i6 ©f lEJaCrage* Book III
juft : Hence It Is, that at this Day it is held by all Law-
yers, that it is lawful (either in cafes of Wreck, or any othr
Exigency upon fuch landing^ for PafTengers to build a Cot-
tage or Hut on the Shore to fhelter Them for a Sealbn
fio llttorLun- ^^"^s- T^^ ^^"^' Pompontus does think there ought to be
de ojienduntur the PriEtor's Decree ; but certainly that extends only tothoic
cnideles qui Paficngers, that, being expulfed their own Countries, defirc
6Ha7na com. perpetual Habitation, and a Subiec'lion to the Governmerr
hibeant. ^^ ^"^ r^Q^ wherc they defire to dwell.
'The End of the Second Book,
BOOK
[
( 4^7 )
BOOK III.
CHAP. I.
©f fumm, •BonDagc, ©lauetp, Cjctle, ano
9b)ucattan*
I I, 0/ Freedom hy the Lanx) of Na-
' ture^ and of Bondage, Sla'veryy or
Captt<vtty introduced hy the Lanv
of Nations.
II. Of the Aaions that fuhjeSi Man
to Bondage.
III. Of the Dominion o<ver Sla'ves,
Bond-men and Capti'ves.
IV. Of the Caufey or Reafon of
fuch Dominion,
V. That this Right or Dominion
nuas not a Laav uni'verfal.
VI. Of Bondage or Sla<very, 'where
difcontinued hy the Chrijiians and
Mahometans.
VII. Of a Servitude at this Day,
Jiajiding avith the La^ws of a Chri-
Jiian Commonnjoealth .
VIII. Of ManumiJJton and Freedom
hy the Hebrew and Roman Laiv^
and by the Lazvs (t/* England.
IX. Of disfranchijingy the feveral
nvays.
X. Of Abjuration and Exile i and
wohat Operation it hath.
XI. Of Freedom in Cities and
Corporations , in reference to
Merchants y Traders and Foreign-
ers.
I. T N the primitive State o^ Nature^ no Men were Ser- l. liberty S.u
\^ vants •, yet it is not repugnant to natural Juftice, that D. dejlatu
by the Fa(5l of Man, that is, by Covenant or "Tranfgrejfion.^ hommum. Fi-
Servitude fhould come in ; therefore Servitude is brought ^i^lUl^^Jni^el
in by the Laws of 'Nations. captivitate de
II. Hence it is, that thofe that will yield up their ^qx- jttre gentium,
fons, or promife Servitude, are accounted Slaves ; fo like- •^f^<^'^"> '• *•
wife all that are taken in Puhlick War^ and brought within
the Guards of their Conquerors ; nor is Tranfgreflion necef- Littleton §.
fary, but the Lot of all is equal after the War is begun, 175. /. Toft-
even thofe, whofe ill Fortune fubjedled them to be depre- ^^' ^* V ^'
hended within the Enemies Bounds ; nor are they Servants ^ ^^ '^*
only themfelves, but all their Poflerity for ever.
D d
III.
^
418 jSDf jfi:ce5am,'Battlir!ge5S)la&erp,&c. BookIii.
L t^fera-'o- HI. Thc Privileges of this Right or Dominion are infinite-
rum §. I. D. j-^^^^ ^j^^^^ ^^ j^Q Stiff tring which may not he impofed onfucb
7u!m. ^Jpud ^0^ Work which may not every way be extorted from them :
cmr.es perreg; So that cven the Cruelty of Mafters became almofl unpu-
gentss, ait niflied, till the Municipal Laws of Countries fet Bounds to
Caius, am- ^1^ . Rigo^jj. 3nd Power.
madnjertere O
foffiuniis domi-
nis in Jef^os tnta necifqi potejiatem fuijp. Co. Injlit, fol. 1 1 6. h, I. i. Z). de hit nui
fui J'utit juris.
Nor are the Perfons become theirs only that have the
Power of them, but alfo all that they have ; for fuch un-
happy Perfons can have nothing of their own.
Hence it was, that that excellent Law in favour of fuch,
Leg. Corn el ff. was introduced by the Romans^ called Lex Cornelia^ which
de Tejfam. (3' was, whcn a Captive, intra pr^Jidia hojlium^ died in his
Leg. Coryielff. Captivity ; if he had made a Will, before his being taken
evug.ju J It. (^^pj-jyp^. ypj. j-^^}^ ^ Captive ihould in favour of fuch Will,
and for the upholding of the fame, be feigned to be dead,
and in pun5fo temporis^ immediately before fuch his being
Injure Pofili- taken Captive ; and fo by that Legal Fidlion of Death, his
tr^'dl'ir' ^'"^"^ became firm and valid, as if he had really died with-
bdlo §. I . ^ out ever being taken by the Enemy. So likewife if one had
/. hon.ff. d. been made a Slave, yet if he had returned out of hisCap-
^''P^y^' §. 4. tivity, that for the Prefervation of his Right and Propriety,
iu^Tat'r^ohit ^^ ^^^ feigned as if he had never been abfent, and was im-
mediately redintegrated into his priftine State and Condition.
And Forte/cue IV. Now all thefe Privileges and Immunities were intro-
duaa eji fcr^ RrifoHcr.
njifus, E--M Hence it is, that the Captor's Dominion is extended to
homines %diL ^^ Children ; for fhould fuch ufe their highejl Rights they
rratura-, quare would not be bom ', but Children that are born before that
ip/7 ab homine Calamity, and were never taken Prifoners, are freed from
jubiata femper ^j^^j. unhappy State.
reatre glijat, ^ ^ -^
«t faciat omne quo hhertate naturali privatiir^ cap, 42.
V. Though this Dominion or Right was generally ac-
quired in moft Nations, yet was not the fame an univerfil
Law ', for amongft the J^w;, Refuge was granted to Ser-
vant^
Chap. I. C)f JFteeBam,T15on&aB:e5@)lat)ctp, &c, 419
vants who fell into that Calamity by no Fault of their own.
And the State of Chrifiendojn at this Day is apparent, That
Prifoners taken in War do not become perfed; Slaves, as of
old, but only remain in the Cuftody of the Captor, till Ran-
foms are paid^ whofe Valuations are generally at the Plea-
fure of the Conqueror; yet Perfons of eminent Quality, as
Generals, and the like, fuch Perfons, * if taken by a com- * Article of
men Soldier, yet he has no Advantage by the fame ; for ^^^^ ^-^^^ ,
fuch a Captive is become Prifoner immediately to that Prince JjjJ-^j^ T^ ^"^
or State under whom the Captor ferved : But if it be the Forces, ArtK.
Lot of an inferior Soldier to become a Prifoner of War^ he 24.
is then become abfolutely the Captors to difpofe of j but h^
wanting thofe Neceflaries in the Field for himfelf, which
he ought to provide for his Prifoner, commonly waves that 'Bart, in I.
Intereft, and generally yields him up as a Prifoner of War ^'^' ^ fi^'^*
to be difpofed of by that Prince or State under whom he ^^'1^^ ^
lerves.
VI. Slavery in Chriftendom is now become obfoiete ; and
in thefe latter Ages the Minds of Princes and States having
as it were univerfally agreed to efleem the W^ords, Slaves^
Bondman, or Villain, barbarous, and not to be ufed ; and '
that fuch as are taken in War between Chriftian Princes,
Ihould not become Servants, nor he fold, or forced to work,
or otherzvife fubje£fed to fuch fervile Things, but remain till o^the F ^n^&
an Exchange of Prifoners happen, or a Ranfom paid, as with the Spa-
afore : Nay, the very Turks and Afaho?netans at this Day »^ar^s mhaly,
generally obferve this among themfelves, not to make Slaves ^ ^^^^^"^^"
of thofe of the Mahometan Religion, though taken in W^ar •, for the ^th of
and that which is moft to be admired, a Chriftian fallen into his yearly
that miferable State, renouncing his Religion, and becom- ^^X-
ing a Mahometan, immediately upon his Circumcifion ob- ^^^^ ^^^^^^^^
tains his Freedom with a Recompence. The Cruelty of And in the*
thofe Infidels to thofe unhappy Perfons, together with the laft Be/gici
Reward of renouncing, hath given Caufe to many a brave /^/lVfa.\
Perfon to become Renegado ; the which being confideredby ^i^ Flemings
the Parliament of Z;?^te<i, they made a -f Provifion for fuch that were ta-
miferable Perfons as Ihould be taken by Turkifh and Moorifh ^^^ i" ^^^
Pyrates. , as they did the
•^ like with
^o{e oi England. A?ino iS"] 1-2. ^atrt mn Jit ardua 'virtm few'itium fugijfe manuy it
IS none of the hardeil Virtues to embrace Death to avoid Slavery. i* 1 6 Car. i .
cap. 24. it's expired. Mr. Thomas Betton^ a Turkey Merchant, left a very confiderable
Sum of Money to the Ironmongers Company, to be laid out in the Purchafe of an
Ettate, the Produce of which is appropriated to the Redemption of Britijh Slaves.
D d 2 VII.
) .
420 Of jFi^eciiom, TBonuage, ©latierp, &c. Book ni.
Salk, 666, VII. Though Slavery and Bondage are now become dif-
, ^^7- continued in mofl Parts of Chrijlendom^ and to that Degree
that for the Perfon of a Man, be he Moor or other Indian
a Trover is not maintainable by the Laws of England-, yet
there may be a Servitude which may amount to a Labourer
Suffering equal to that of Captives -, the which may be
The Erjglijh juftifiable ; for Men, either through Poverty, and the like
^^^^^r"" may oblige themfelves by Contract for Maintenance to a
for the Vir- Servitude that's perpetual, /'. e, for Life, and fo for Years;
gwia and but at this Day there is no Contrail of the Anceftor can
other PJanj^- obHge his Poilerity to an hereditary Service ; nor can fuchas
Servants^or^a ^^cept thofe Servants, cxercife the ancient Right or Domi-
Term of riion over them, no nor fo much as to ufe an extraordinary
Years. Rigour, without fubjefling themfelves to the Law. If an
Exod. 21. 26. Lye or a Tooth had been ftruck out injurioufly, by the ^f-
27. hrew Law Freedom was immediately due ; and by the
Greeks i if Servants had been ill treated, it was lawful for
them to demand a Sale of themfelves to others. At Rqim
the Statues became Sanduaries for Servants to implore the
Help of the Governors againfl Rigour, Hunger, or any
Vide the S'a- Other intolerable Injury inliidted by their Matters ; and even
tuteof 5 £//«;. in London at this Day in Servitude^ (amongft the many
ha\ ^^ ov^ed ^^"^^^5 ^^ ^^^ Inrollment of the Indentures, not inftriiding
the like Re- i^ ^he Art, Want of Neceflaries, infra tetatem 14, &c.)
medy in other Cmelty, Hunger, Rigour, immoderate Corredion, and the
Places. jii^e^ are Caufes fufficient, on a Monjlrance or Pedtion to the
Chamberlain, to diffolve the Contrad, though under Hand
and Seal, and to decree all or part of the Dowry, or Sum
given (if any) to the Servant ; and if Cruelty hath been in
the Cafe, to expofe the Mafler to anfwer Damage to the
Servant.
VIII. Ulpi anus ohCtrveSy after that by the Laws of Na-
tions Servitude came in, then followed the Benefit of Ma-
numilTion. By the //^ir^ze; Z^w, after the Expiration of
the Time agreed on, the Servant was to be manumitted,
and that not without Gifts, like London's Freedom ; by the
Cuftom of which the Mafter is always at the Charge of
Cloathing, and difcharging the Chamberlain's Fees. By
the Roman Law, every Son was in fuch Subjedion to his
Father, that before he could be releafed of tliis Subjedlion,
and made free, he fhould by an imaginary Sale be fold three
times by his natural Father to another Man, who was called
by
\
Chap. I. ®f Jfteetiom, TSoitHap, ©laljetp, &c. 42 1
by the Lawyers Pater Fiduciarius^ that is, a Father in p^ut. 15. 13.
Truft, and then be bought again by his natural Father, and ^I^X^"£^"a
fo manumitted by him, and then he became free : This ©n the Coun-
Form of fetting free was by them called Emancipation try of illyria,
$mma. and made it
^ their own by
Conqueft,
their Viflory pleafed them fo highly, that thereupon they called themfelves by a new
Name, Sla<voSy which is in their Language, Glorious ; but in after time, (that warmer
Climate having thawed their Northern Hardinefs, and not ripened their Wits) when
they were conquered, and made Servants to their Neighbours, the Italians, which kept
many of ihem in Bondage, began to call all their Bond-men Slaves. Sir Walter Ralegh,
Vol.1, p. 282. Edit. 1736. '
That Roman Darling was to be obtained three Ways : Vide leg. 12.
1. By Birth •, * both, or at leaft one of their Parents ^f^^^- V^°'
being free, and fuch were called Gives Originarii, ^R^maV^^^
2. By Gift and Coaptation ; when the Freedom was be- * jufJn. In-
flowed on any Stranger or Nation, and then they were /^>- ^z^- » • ''>•
termed Civitati Bonati : And fo we read that Cafar took f ^"<?'''/l'/ "Y-
, 1 XT • • 1 ■!-» 1 tranc. otlo in
in whole Nations mto the Freedom. Catilin. art.^.
Laftly, by Manumiffion ; which was thus : When as the
Servant was prefented by his Mafter before the Conful or
Prator^ the Mafter laying his Hand upon his Servant's
Head, ufed this Form of Words, Hunc liherum ejfe volo \
and with that turning his Servant round, and giving him a
Cuff on the Ear, he did emitter e fervum e manu : The Goodwyn An-
Pr£tor laying then a certain Wand or Rod, called Vin- ^'^1- ^°^' 4»
^lEta^ upon the Servant's Head, replied in this manner, '^'^y'^^'
Dice eum liberum ejfe more §ueritum ; then the LiSlor or
Serjeant taking the Wand, did ftrike the Servant on the
Head, and with his Hand ftruck him on the Face, and
gave him a Pufli on the Back •, and after this he was regi-
ftered for a Freeman, This being performed, the Servant
having his Head fhaven purpofely at that time, received a
Cap as a Token of Liberty.
fertullian obferves, that at this Time of their Manumif- TertulUan. de
fion, the Servants received from their Mafters a white Gar- ^'^M- Cam,
ment, a Gold Ring, and a new Name added to their
former.
By the haws of England^ every Subjefl born within the Magna Char*
King's Dominions, is a Freeman of this Realm, as appears ^^» ^^P- H-
by the Grand Charter ^ cap. 14. yea, though he be a Bond-
Jlave to a Subjedl : -f But a Stranger born is no Freeman^ f As to fome
till the King have made him a Denizen^ in whofe Power things, njide
Dd3 alone, ^^-/^'^' §-9'
422 ©f jftecUom, 15ontJage, g)latietp5 &c. Book hi.
alone, without the Help of any other, one may be made
free.
To be a Freeman of the Realm, the Place of Birib is
1 Rich. 3. held more confiderable than the Quality of the Perfon ; yet
/of. 4. |3y fi^e Opinion of Htfjfey Chief Juilice, and in Calvm\ Cafe
of the Poft'Nati^ it is held for Law, that if Jmbajfadors of
this Realm have Children born in France., or elfewhere, the
Father and Motjier being natural born Subjedls, the Chil.
dren are free of the Realm of England : But if either the
Father or Mother of fuch Children were an Alieny then are
not rhole Children free.
bacon's Cafe, But the Law IS conceived to be otherwife at this Day.
O-oi^ Charles The Stature de Nans ultra mare, 25 £. 3. declares the
°'' IlFue born of an Englip Man upon an Englijh Woman, fhall
JenhinHCent. be z. Dcnizen i for upon the Conflru(5lion of this Statute it
'? 2, 3. ]^3s httn adjudged more than once, that if an Englijh Mzri
marry a Foreigner., and has IlTue by her born beyond Seas,
the IfTue is a Natural horn Suhje5f.
Iflue born be- If Barpn and Fem.e EngUfi go beyond Sea without Li-
yond Sea. cence, or tarry there after the Time limiitedby tiie Licence,
^nd have IfTue, that the IfTue is an Alien^ and not inherit-
able, contrary to the Opinion of Hujfey, i R. 3. 4. Bit
again fl Hill. Cro. Eliz. 3. Cro. Charles 602. 6'/^w»*s Cafe,
cited in Bacon's Cafe.
Eng/ijh Mer- An EngUJh Merchant had IfTue by a Polijh Woman in
an'^w'and ^^^^^^' ^"^ ^^^^^^^ ^^^ Copyhold Land to the Ufe of his
has ifuie he Children, per Crook., the Children are not Aliens. i.Be-
is not an caufe the Father went with Licence, being a Merchant.
'Jlie:t. ^ 2. In our Law, Partus non fequitur Ventrem. 3. Blood
fufiam. -J, between him and his KTiie. Several of the Judges held,
that the Words in the Stat. 25 Ed. 3. cap. De natis ultra
mare, whofe Fathers or Mothers be or fhall be of the Alle-
giance of our King, fliall be taken diflributive, Father or
Mother, and not copulative, JJttleton^s Rep. 23, 26, 27.
IX. Disfranchifing by the Romans, called Capitis ditni-
nut to, was three- fold, Maxima, Media, and Minima-, the
leaft Degree was, when the Cenfors pulled a Man from a
higher IVibe down to a lovyer, and lefs honourable ; or
when by any Cenfure they difabled a Man from fuffraging
or giving his Voice in the publick AfTemblies ; fuch as were
thus in the laft manner punifhed, were termed JSrarii, and
/« <erarios i^clutiy qma omnia alia jura Civium Romanorutn
prceteqtiUfi
Chap, l £)f irceliom, TSont^arre, S>Iaaei:}?, &c. 423
fr^terquam tributi 6? aris conferendi amlferunt. Gellius
relates, that P. Scipio Nafica and M. Pompilius^ being Cen-
fors, taking a View of the Roman Knights, obferved one j. Gellius
of them to be mounted on a lean ftarvling Horfe, himfejf ^'^^<'^- ^fti<^'
being exceeding fat ; whereupon they demanded theRea- ' ^' ^' ^'^'
fon, why his Horfe was fo lean, himfelf being fo fat? His
Anfwer was, ^oniam ego^ inquity me euro 5 equum vero
fervus.
By the ancient Laws of England^ and by the Great Firil granted
Charter^ no Freeman fliall be taken or imprifoned, but by ^ijoh. Reg.
the lawful Judgment of his Peers (that is, by Jury, Peers revjved9^.3.
p-w-j ■.. T ' c I 1 I" T~» < 3-Jicl lines con-
ror Peers, ordinary Junes tor others who are their Peers) firmed above
or by the Law of the Land ; which is always underilood by thirty times,
due Procefs of the Law, and not the Law of the Land ge- \
nerally •, for otherwife that would comprehend Bond-men,
(whom we call Villains) who are excluded by the Word
Liber ; for fuch Bond- man might be imprifoned at the
Pleafure of his Lord, but a Free-man neither could nor
can, without a juft Caufe -, nor does the Privilege extend t^
private Adions, or Suits between Subje6l and Subje6l, but
even between the Sovereign and the Subjefl. Hence it is,
that if a Peer of the Realm be arraigned at the Suit of the
King for a Murder, he fhall be tried by his * Peers, that is, * The Lord
by the Nobles. But if he be appealed of Murder upon Mori; and
the Profecution of a Subjed, his Tryal fhall be by an or- ^'^'^^f fj^'^
dinary Jury of twelve Freeholders : And as the Grand fuppofed Mur-
Charter did, and does protect the Perfons of Freemen, fo derofoneH^-
likewife their Freehold j for by the fame Charter it is de-/'^^^>»S^^''*
clared, that the King, or his Minifters, fhall out no Man of ^^ e a 6
his Free-hold without reafonable Judgment ; and fo it was 33 Hen. 8.*
ruled upon a Petition in Parliament, fetting forth, that a Bro. Title,
Writ under the Privy Seal, went to the Guardian of the T^X^l^-
Great Seal, to caufe Lands to be feized into the King's
Hands, and that thereupon a Writ iffued forth to the Ef-
cheater to feize, againft the Form of the Great Charter ; 8 Ed. 3. Rot,
upon Debate of which, the Party had Judgment to be re- P^rl. m, 7.
flored : The greateft and mod explanatory A61, which
fucceeded in Point of Confirmation, was that of Edward 28 E. 3. c. 3.
the Third ; the Words are, %\dX nO 33an, Of toljat €(tate
Oi Conliition foelier \z be, ftaU tie pat out of tlje ^antifif
anu <££mmmt0, m\ taken 0^ impciioneo, no^ tiidnlienteti,
P d 4 noj
424 flDf f teetiom, TBont^ase, ©tatietp^ &c. Book hi.
mi put to 2Dcatlj, toitl)Out !)C lie bjoug^t to anCtotr by tJue
^jDCi:r0 of tljc HatD, tljat i^, bp tl)e Common 1QLa\3).
2. Diminutio media, was an Exilement out of the City
without the Lofs of ones Freedom *, the Words of the
Judgment or Sentence were, ^ibi aqu^ l^ igni interdico.
3. Dimimitio maxima, wzs the Lofs both of the City and
the Freedom, and by his Judgment or Sentence was obli-
ged and limited to one peculiar Country, all other Places
in general being forbidden him.
There was a fourth kind of Banifhment, disfranchifing t)
called Rekgatio ; which was the Exilement only for a Sea-
fbn, as that of Ovid's,
pvid. de frift, Addc quod edi5lum quamvis immite minaxque^
^^- 2. , Attamen in pcena nomine lene fuit :
^lippe relegatusy non exul die or in illo.
The Laws of England In this Matter have fome Refem-
blance with thofe of the Romans ; for Bra5fon obfervesfour
Diftindlions :
In London the j ^ Specialis, hoc efi, interdi5iio talis Provinci^e, Civitatis,
i3.nie IS done y^ . ■*■ 7 '•77"
by exhibiting ^^^^g^ ^^^ ^^^^^•
an Informa- 2. Generalis, Inter di5iio totius Regni, £5? aliquando eft,
tioninthe ^^ Temporaria, pro duobus, tribus, quatuor, aut pluri-
jeant, in the 4- Perpetua, pro termino vit^, ^ exilium eft aliquando
Mayor'.Court ex arhitrio Principis, Jicut in extliando Duces Herttordis
there agamfi ^ Norfoicia", per Regem Richardum Secundum, y ali-
that fha!riull- ?^'^^-^^ P^^ Judicium Terr^, ut fit in cafu Piers de Gavefton,
\y deferve fo ^ ftiam in cafu Hugonis de le Spencer Junior is ^ qui amho
%re^t3.DiihO'fuerunt exflit' per Judicium in Parliamento. So likewife
'^°"^' was that of the Banifliment of the Earl of Clarendon, who
*iqCar,z. died beyond Sea *.
€. 10.
Mr. Seid'-a oh- X. Ahjuration was alfo a legal Exile, by the Judgment
ferves, that in of the Common Lazt\ as aifo by the Statute Law ; and m
^KHeT\hl^^^'^ Statute ofWeftm. the fecond, cap, ^5. he that ravilhes
Fi'rft ^and of ^ Ward, and cannot render the Ward unmarried, or the
other KingF,
both berore^nd after him, that if any Man, accufed of a Capital Crime done at Sea,
being pubiickly called five times by the Voice of the Cryer, after fo many fevcral Day
kffigned did not make his Appearance in the Court cf Admiralty, he was banifhed out
of England ^ cf de mere appurtenant au Roy d' Jngleterre, for forty Years more or lels,
accorHine to his Offence. Mar, Clauf. fol. \z. - ' • ,^ ,
•'^- ■ t :^ ^ Value
. S x.i't*
CtiAP. I. ©f f tcenottt, TSonnaBe, S)laibcrp, &c. 425
Value of his Marriage, muft abjure the Realm ; and this is
imeral Exile. And by the Statute made 3 1 Ed. i . Butch-
ers are to be abjured the Town, if they offend the fourth
Time, in felling meazled Flefh •, and this is a fpecial Ba-^
nilhment.
A Man exiled does forfeit thefe things.
1. He lofeth thereby the Freedom and Liberty of the
Ration out of which he is exiled.
2. He forfeits his Freedom in the Borough 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 deady for his Heir may 34^-i' 1^-4.
enter, and fo may his Wife enter into her own Lands, and ^ ^^^' *^^'
may fue an Aftion as a Feme f ok. ,-^^ ' ^^^^
4. He fhall forfeit thofe Ljjnds which he fhall purchafe 15 -E". 3. Fitz,
in the Realm, during his Banijhment ; for he, during his Petition />/. 2.
Banifhment, is as much difabled to purchafe as an Alien ;
for// alienigena by his Banifhment, and he is obferved to
be in a worfe Condition than an Alien ; for he is marked
with indignatio Principis, 'Tis true, he cannot forfeit
neither Title of Honour, or Knighthood, nor the Lands
he had before Exile, unlefs there be Ipecial Sentence or TotleVM?^-
Judgment, as that of the Spencers *. , J/. Sofs?.
If the Father be in exile, this hinders not the Freedom
of the Son, for the fame is not a thing defcendible ; for
ihould it be fo, then the Banifhment of the Father would
make a Forfeiture of the Freedom ; but the Son has this .
freedom by his own Birth, as a Purchafe, and not by the
' Death of his Father by Defcent : Like the Cafe where
J>S. hath many Children, and then he confefleth himfelf
a Villain to J. D. in a Court of Record ; yet his Children
formerly born are Freemen, and no Villains ; the Reafon
, is, becaufe they were free by their own Births ; but the In-
heritance is inth railed, becaufe it is to come to the Heir by
Defcent.
XI. A Freeman of a City or Borough may be made SRep/o/.i26.
divers ways, as my Lord Coke obferves. Cafe City of
1. By Service. - . •^''^^^^•
2. By Birth, by being the Son of a Freeman,
3. By Purchafe or Redemption.
^. At Brijiol by Marriage.
Sir
426 SDf JTreeHom, rBnitliaffe, Slaijetp, &c. Book iiii
^^^' ^2. Sir John Bavies in his Irijh Reports obferves the fanJ
for Law. St. Paul was born at Tarfus in Cilicia^ which
was under the Obedience of the Romans^ by virtue of
which he challenged the Privilege of a Roman Citizen-, but
it was accounted no more than a National Freedom ; jikg
that of Calvin^ who claimed the general Freedom of an I
Eyigli/hman^ being born in Scotland^ but under the Obedi*
ence of the King of England ; but that Challenge made not
St. Paul free of the private Cuftoms, Privileges, and Fran-
chifes of Rotne^ no more than Calvin^ Birth made him a
free Citizen of London^ to the particular Cuftoms of that
City.
VixTigEd-ivard The King, by his Letters Parents, cannot make one a
the 1 hii-d Freeman ot London^ * yet he may thereby make him a
John Falcount Freeman of his Kmgdom.
de Lucay an
Apothc cary of the City of London, qwod ipfe omnibus lihertatilus quas Gives Chitctis
fr^ediSf habent in eadcm Cinjitate alibi infra Regnum Angl' nojirum habeat, gauitat iS
utatury isfc. Rot. Pat. 32 E. 3. in the Tower; yet it was held, that this Grant did not
make him a Freeman of the City, for it cannot be attained but by one of ihofe wayj.
* Cafe of tke City of London, Co. 8. Report.
If one born in a City, of Parents that are not free, the
Child hereby is no Citizen by Birth ; and if one be born of
free Parents out of the Place of Privileges, as London, &c,
he yet is a Freeman by Birth -, yet in the Charter granted
to X^r mouth .f the Words were, Conceffimus Burgenftbus it
Magna Yarmutha de villa ' fr^edi^l. oriundis^ that they
fhould have fuch Liberties : So that fpecial Words may
alter the Cafe.
Confirmed by London had many Royal Franchifcs granted them from
Magna Char- time to time, and were often by former Kings fuccefiively
%lt^^Pa?l' confirmed, nor wanted they a Share when the great Char.
ter was granted, to have their ancient Liberties feciired;
nor were the fucceeding Princes flack in their Royal Grafts
and Confirmations ; but efpecially Richard 11. who in Par-
7 ^' «^»^- 37- liament granted and confirmed to them all their andent
Cuftoms and Liberties, with this Claufe, LJcet uji nonfuc-
9 E. 2: cap. z. rint vel ahift fuerint., and notwithftanding any Statute to
29^. 3- cap.z. the contrary ; amongft the Number of their many ?m-
^ "/y ^ 7i^^ I * ^^g^s» ^^^ Freedom of the fame was accounted of no fmall
' * Importance, fince in divers Parliaments it v;as very mudi
^imed at, and endeavoured to be impaired s butatlaft they
obtaine4'
I
1
Chap. I. ©f jFteeUom^ TSfl^tBap, ©latietp, &c. 427
obtained a mod gracious and Royal Confirmation in Par- 9 ^-^ 4- this
liament of their ancient Liberties, amongft which it is de- . '^"°'^
dared, that no Merchant, being a Stranger to the Liberty
of the fald City, lliould fell any Commodities within the
Liberty of the laid City, to other Merchant- Strangers ; nor
that any fuch Merchant-Stranger lliould buy of any other
Merchant- Stranger fuch Merchandize within the Liberty of
the faid City, without Forfeiture thereof, faving that any
Perfon, Lord, Knight, ^c. may buy within the Liberties
of any Merchant-Stranger Merchandizes in grofs for their
own Ule, fo that they do not fell them again to buy any
other. And as this City by Cuftom may preclude any
Perfon, not being free of the fame, to fell in fuch manner
upon fuch Pain ; {a) fo any other City, which are Boroughs W Vide Salk,
or Cities by Prefcription within this Realm, may have the f ?4- ^^^'"^
like Cuftom, and the Goods fold or bought by fuch, may fy^h Cuftom
befubjeded to Forfeiture ; but the fame cannot be good is an Injury to
by Charter or Grant. 8 Co. 1 25. a. ^^e Party, and
,i\ compleat Freeman is fuch a one as hath challenged his the^ublick^^
Freedom, and taken the Freeman's Oath, and is admitted Lucas's Rep.
into the Society and Fellowfhip of the Freemen, Citizens, 146. 173.
and Burgefifes ; otherwife, he hath but a bare Right to his 7'^^gg'^
Freedom. ^ ^ ^ ifRep.^s.b.
A Bond to reltrain a Man from trading in a particular
Place, if made upon a reafonable Confideration, is good ;
fecus if it be on no reafonable Confideration, or to rellrain i P^^^ ^il-
a Man from trading at all. //«w/s Re-
^ ports 181,
CHAP.
( 4^8 )
CHAP. II.
f)f aucit^, as in telatton to tijett qEfiattji Eeal
ann petfonau
he
lai
I. Of an Alien his Ability and Dif-
ability in the taking and enjoying
of Ejiates Real and Perfonal.
II. Of his Capacity in purchajing,
and Difabiliiy to transfer by an
hereditary Defcent.
III. Of the Rules of Defcents^ ac-
cording to the Laws of federal
Countries.
IV. Of Defcentsy according to the
Rules of the Common Lanv of
England, lineal and collateral,
V. Of Impediments in one that is
fiot the medius anteceflbr.
VI. Of Impediments in one that is
the medius antecelTor lineal and
collateral.
VII. Of the Statute of Natis ultra
Mare, and IJjfues horn htjni
' Seas.
YIII. The LorJ Coke'; Opinit,,
that if an Alien has JJfut Pwt
Sons Denizens, the one purchafn
Landy and dies, the other canmt
inherit them, debated and ^^
fated.
IX. Of foreign "Births, nukid Jk
not create a Difability.
X . Of Aliens not di fabled by lav)
to bring either real or perftnal
ASlions-
XI. Of Office that muji entitle the
King to an Alien'' s EJlate.
XII. Of fome particular ImmunitiUt
and other Matters relating to an
Alien,
1 Co \6 z ^' A -^ Alien is one born , in a flrange Country, under
Telv'ertoni'f^q. - jLjL ^^^ Obedience of a ftrange Prince and State^ and
out of the Legiance of the King of England^ and can have
I Infl..2. a, b. no ^^^1 ^^ perlbnal Aclion for, or concerning Lands; and
therefore if he purchafe Lands, Tenements, or Heredita-
ments, to him and his Heirs, albeit he can have no Heir,
yet he is of Capacity to take a Fee-fimple, but not to hoU\
for the King upon Office found fhall have it by his Pr^
rogative.
So it is if he purchafe Lands and dies, the Law doth cad
th^ Freehold and Inheritance upon the King.
But if he purchafe or take a Leafe for Years of a Houfcor
a Warehcufe, which is for the accommodating him as a
Merchant- Stranger .y whofe Prince or State is in League
with ours^ there he may hold the fame, for that the fame
is incident to Commerce,
And in that cafe, if he departs and relinquifhes the
Realm, the King fliall have the lame , fo it is, if he be no
Merchant,
The
pyer 283.
1 Infl. 2. b.
1 Infl. 2. b.
I
Chap. II. SDf Slieilg* 429
The like Law is, if he takes a Leafe oF Meadows, -P^/^^ 29 £//«.
Lands, Woods or Paflures, the King Ihall have the fame ; cloJtTc^fQ
for the Law provides him nothing to a Habitation to trade by the Judges.
and traffic k in as a Merchant.
II. Though he may take by Purchafe by his own Con- i Ven, 417.
ira^^ that which he cannot retain againft the King, yet the ^^^%'^f ^
Law will not enable him by an Adl of its own to transfer by q^^^^
hereditary Defcent (the Alien dying, his IlTue a Denizen
born, the Land will not defcend) or to take by an A^ in
Law ; for the Law, ^^ nihil facit fruftra^ will not give
him an Inheritance or Freehold by an Ad in Law, for
he cannot keep it.
SI. By Defcent.
2. By Courtefy.
3. By Dower.
4. By Guardianfhip.
And in refpe<51: of that Incapacity he refembles a Perfbn
Attaint^ but with this Difference ;
• The Law looks upon a Perfon Attaint as one that it takes Vide hp, S. z,
notice of, and therefore the eldeft Son attainted overliving
the Father, though he fhall not take by Defcent in refped:
of his Difability, yet he Ihall hinder the Defcent to the
younger.
But if the eldeft Son be an Alien^ the Law takes no no- 32 Ed. 3.
tice of him., and therefore as he fhall not take by Defcent, fo ^o^inage,
he Ihall not impede the Defcent to the younger Brother : %°'^st^i
As for inftance, if there be three Brothers, the eldeft an i, V. 7. '
Alien, the other two naturalized, and the middle Brother '
purchafe, and dies without Iffue, the younger Brother fhall
have the Land.
III. Concerning the Rule of Defcents, we are not to go-
vern ourfelves therein by the general notions of Love^ or
Proximity of Nature., but by the Municipal Laws of the
Country wherein the Queftion arifeth ; for the various Laws
of divers Countries have varioufly difpofed the manner of
Defcents, even in the fame Lire and Degree of Proximity:
For inftance, the Father certainly is as near of kin to the
Son, as the vSon is to the Father, and is nearer in Proximity
than a Brother, and thereror'- '^ rV be preferred as next of
kin in Adminiftraticn to xht "u:a:^,
III
According
43° Ot^tm, Book J
^^/^Y's According to the Jews, for want of IfTue of the Sop
3 M^ 37. ^^^ Father fucceeds, excluding the Brothers ; and that "
i>eld. c/e/uccef- been the Vk and Conftrudlion of the Jewijh Dolors
ftonihm apud Numh. xxvii. 9. but the Mother was wholly excluded
Hcbraos, cap. 2. According to the Provifion of the Greeks for the Sue
ceffion or Exclufion of the Father, is left doubtful.
Comment on 3. By the Roman or Civil Law^ according to the Edi
Littleton, foL mation of the twelve Tables, the Father fucceeded in the
Purchafe of the Son for want of IfRie of the Son, underihe
Title proxim, agnato, and fo was the Ufe j but my Lord
-,. Coke fuppofes the contrary.
deh^redilm ^^^^ ^^^ing the whole Inftitution of Juftinian, the Son
ab intejlato,^ dying without IfTue, his Brothers, Sifters, Father, or Mo-
-vementibus thcr, do fuccccd him as well to Land as Goods, in a kind
ISV.. ^^Coparcenary, ' ™
Jiammtis,fo, 4- According to the Laws of Normandy, (which in feme
233. things have a Cognition with our Law) his Brothers are pre
ItT:. ill: f^'"'-^,^ before the Father, (.f the Son die iffuekfs) but Bb
cheancres. Father berore his Uncle.
J. 5- According to the Laws o^ England i\\tSox\%^yj'm(r
^'^' ^' 3* fangf Iffue,^ or Brothers, or Sifters, the Father cannot fuc-
ceed, but it defcends to the Uncle.
I Injl. io.a,b. IV. There be two kinds of Defcent, according to the
Common Laws of this Realm,
Hahs'5 Hift. ^- Lineal, from the Father or Grandfather to Son, or
of the Law, Grand-fon.
ch.ii, 2. Collateral or tranfverfed, as from Brother to Sifter,
Uncle to Nephew, and e converfo : And bodi thefe
again of two forts.
I . Immediate, as in Lineals from Father to Son.
Grotius de 2. Mediate, as in Lineals from Grandfather to Grand-
Jure Belli ac child, whcrc the Father dying in the Life-time of the
?ads, lib. 2. Grandfather, is the medium differ ens of the Defcent.
^^/- 7' Collateral, as in Lineal, from Uncle to Nephew, or
i converfo.
And this mediate Defcent, or mediate Anceftor, though
to many Purpofes it be immediate ; for the Father dying
in the Life of the Grandfather, the Son fucceeds in point ot
Defcent in the Lands immediately to the Grandfather ; and
in a Writ of Entry fhall be fuppofed to be in by the Grand-
father, and not in the poft ^ cut.
This
HAP. It €)f9I(cniJ* 431
. This is called a mediate Defcent, becaufe the Father is
the Medium through whom the Son derives his Title to the
Grandfather. .
In immediate Defcents there can be no Impediment, but
, what arifes in the Parties themfelves : For inilance, the Fa-
ther feized of Lands, the Impediment that hinders the De-
fcent mufl be in the Father or Son, as if either of them be
Attaint or an Alien.
In mediate Defcents, a Difability of being an Alien or
Attaint, in him that is called the medius antecejfor^ will dif-
able a Perfon to take by Defcent, though he himfelf have
no fuch Difability.
. In Lineal Defcents, if the Father be Attaint or an Alien,
and hath IlTue a Denizen born, and die in the Life-time of
the Grandfather, the Grandfather dies feized, the Son ihall
not take, but the Land fhall efcheat.
In Collateral Defcents, A, and B. Brothers, A, is an Dyer, 274.
Alien or Attaint, has IlTue C. a. Denizen born, B. purchafes ('faye's Cafe.
Lands and dies without IlTue, C. fhall not inherit, becaufe
i which was the medius antecejfor or medium differens^ is
uncapable.
V. But in any Defcents, the Impediment in an Anceftor
that is not medius antecejfor^ from whom and to whom, will
not impede the Defcent.
As for inftance, the Grandfather and Grandmother both Courtney %
Aliens, or Attaint of Treafon have IlTue, the Father a Be- ^^^^-
nizen^ who hath Iffue the Son a natural born Subje5f^ the Corg„roi,
Father purchafes Lands, and dies, the Son fhall be Heir to 141.
the Father, notwithflanding the Difability of the Grand-
father, (and yet all the Blood which the Father hath is de-
rived from his difabled Parents) for they are not medii an-
tecepres^ between the Father and the Son, but para-
mount.
The Law does not hinder, hut that an Alien is of the
[me Degree and Relation of Confanguinity^ as natural born
khf:Els^ or Denizens horn^ the Son, the Father and Brother, CrBoh Car,
though Aliens •, the Son, Father and Brother, our Law ^ 9-
takes Notice of, as well as natural born Subjetls, and fo it ^^^^'"'* ^^^^
was adjudged, for he fhall be preferred in Adminiftration^
though an Alien, as next of kin.
But in Cafes of Inheritance the Law takes no notice ofhim^
and therefore as he.lhail not take by Defcent, ^o he fhall not
impede
f
)i
432 f)f aifeits^ B90K lit
29 Ed. ^ ilt, impede the Defcent to the younger Brother : As for inftance
Coinage 5. ^^ ^^ ^Yxqu, B. and C. naturalized by Adl of Parliamenti
(Brothers) B. purchafes Lands, and d\ts, fine prole, C. ihall[r
inherit, and not A,
Ram/ey'sCzCe. A, an AUen, B. and C. his Brothers, both naturalized by
15 Car. 2. in A61 of Parliament, B. purchafes Lands, and dies without
Com, Banc. \^^^^ ^^^ ^^^^ flj^U ^^^ ^ome to A. nor to his IfTue, though
a Denizen, but ihall come to C. and his IfTue ; the Law
taking no notice of A, as to impede the SuccefTion of C. or
his liTue, though it work a confequential Difability to bar
the IfTue of A, parallel to what the Law calls Corruption of
Blood, which is a Confequent of Attainder.
VI. Again, in Lineal Defcents, if there be a Grand-
father a natural born Subjed, the Father an Alien, Son
natural born Subjedl, the Father is made a Denizen, he
fhall not inherit the Grandfather -, and if the Father dies in
the Life of the Grandfather, the Grand-child, though km
after the Denization, doth not remove neither the Perfonal
nor Confequential Impediments or Incapacity of the Father.
Godfrey and In Collateral Defcents, the Father a natural born Subjeft
Dixon s Cafe, has IfTue two Sons Aliens, who are both made Denizens, and
Godholf, 275. ^jgg without IfTue, the other fhall not inherit him.
z-'Q. z^Rolls ^' ^^ Alien marries an Englijh Woman, who is feizedof
'Rep. qz. Lands, and has IfTue, the Father and Mother dies, yet the
FaughaniS^. j^^jg j^^y inherit the Mother, non objiante the Incapacity
De Natis ul' VII. The Statute de Nat is ultra Mare, declares the
tra Mare, Iffut bom of an EngUJh Man upon an Englijh Woman
25 Ed. 3. ^^ij ^ ^ Denizen ; yet the Conflru6lion has been, though
Cro.Car. 601. zx\ Englijh Merchant marry a Foreigner, and has IfTue by
her born beyond the Seas, that Que is a natural hn
Subject,
Cro.Car.6ou But if an Englijh Woman go beyond the Sea, and there
Bacon sCzk. marry an Alien, and have IfTue beyond the Sea, thatllTue
are Aliens.
Proivde's If an Englijh Woman marries an Alien beyond the Seas,
C^koiKent. ^^d then comes into England, and has IfTue, they are not
Aliens, but may inherit.
Com.Litfol.^. VIII. My Lord Coke in his Commentaries on LittUioi^^
I Le'v. 60. f^^nis to be of Opinion, that if an Alien has IfTue two Soos
I Ven Izo' born in England, one dying without IfTue, the other ihaJl
Hard. 224. not inherit him. But the Law is otherwife taken at "is
Day, as I conceive the Reafons that have been given,
are,
I. Though the Defcent from one Brother to another PerL.C.J.
Brother be a collateral Defcent y yet it is an immediate Be- Hales \nRan>
fcent, and confequently if no Difability or Impediment can-''^-^ ^ ^ ^'
be found in them^ no Impediment in another Ancefior will
hinder the Defcent between them.
That this is an immediate Defcent, appears,
Firfl, In Point of Pleading, one Brother fhall derive
himfelf as Heir to another, without mentioning any other
Anceftor.
Secondly, According to the Computation or Degrees,
Brother and Brother make but one Degree^ and the Brother
is dillant from his Brother or Sifter in the firft Degree of
Confanguinity^ and no more, by the Laws of England,
According to the Civil Law * Brother and Brother make * J^fl- ^- 9-
but one Degree^ for the Brother is in the fecond Degree from /^^ confanzui'
the Brother, yet both make but one Degree. nitatis 38*
According to the Canon Law., -f Prater & Frater^ or f Decret.
Prater (^ Soror funt in primo gradu, Gratiani,
And therefore the Laws prohibiting Marriage between ^^-^//V
Kindred in the fourth Degree^ take Brother and Sifter to be
i\it firft Degree of the four.
The Laws of England^ in Computation of the Degrees of ^^f- ^^^' 20.
Confanguinity, agree with the Canon Law^ and reckon the ^q j' \s
Brother and Brother to be the firft Degree, ^ Holland's '
Herewith agree the Cuftoms of Normandy^ || which. Cafe cited by
tho^igh in fome cafes differ from the Laws of England, yet ^^*^^^^^^' .
herein, and in divers other Particulars touching Defcents, Compte^stde-
they agree. i grees in Line
Another Evidence to prove, that the Defcent between Collat. Solenk,
Brothers is immediate, is this, {viz.) the Defcent between ^^^- 'gCafe
Brothers differs from all other collateral Defcents whatfo- Mich. 1656.'
ever, for in other Defcents collateral the half Blood does in- B, R. contra
herit, but in a Defcent between Brothers the half Blood does "5 •^- ^'.^^^:
impede the Defcent , which argues, that the Defcent is im- '^^ "1' which
mediate. prefers the
The Uncle of the Part of the Father has no more of the Brother of the
Blood of the Mother, than the Brother by the fecond Ven- J'^''/efj^e°j^or
ter, the Brother by the fecond Venter has the immediate x.\iQv,
Blood of the Father with the Uncle (viz, the Father's Bro-
E e • ther
'
434 ©faUenS* EooKlU.
ther) has not but only as they meet in the Grandfather-, the
Brother of the half Blood is nearer of Blood than the Un«
cle, and therefore fhall be preferred in Adminiftration,
It is apparent, that if in the Line between Brother and
Brother, the Law takes notice how the Father was the A&-
dium thereof, the Brother of the fecond Venter Ihould ra-
ther fucceeii to the other Brother, becaufe he is Heir to the
Father ; therefore in a Defcent between Brothers the Law
refpedls only the immediate Relation of the Brothers as Bro-
thers, and not in refpe6t of the Father, though it is true,
the Foundation of their Confanguinity is in their Father or
Mother.
Again, if the Father, in cafe of a Defcent between Bro-
thers, were fuch an Anceflor as the Law looked upon as the
Medium that derives the Defcent from the one Brother to the
other, then the Attainder of the Father would hinder the
Defcent between the Brothers : But the Attainder of the
I Ifffi. 8. a. Father does not hinder the Defcent between the Brothers ;
the Reafon is, becaufe the Father is not fuch a Medium o:
Nexus that is looked upon by the Law, as the Means deriv-
ing fuch a Defcent between the two Brothers : As for in-
fliance of three Cafes, two whereof evince the firft Propofi-
tion, (viz.)
That although the Defcent from one Brother to another
Brother, though it be a collateral Defcent, yet is an imme-
diate Defcent, and that if no Dif ability or Impediment arifes
in theni^ no Impediment in another Anceilor will hinder
them.
Dj'^r, 24.7. The younger Brother has liTue, and is attainted of Trea-
Gray\ Cafe, on, and dies, the elder Brother has Tide to a Petition of
Right, dies fans liTue v/ithout a Reftiturion, the younger
Brother's Son has lofl: that Title •, for though the Title were
in the Anceflor that was not attaint, yet his Father that is
the Medium, v/hereby he muft convey that Title was at-
taint, and fo the Defcent was obilrudted.
C.orr.. flacit. Henry Courtney had Ififue Edward, and was attainted of
Cron.fol. Treafon, and died, Edward purchafed Lands, and died
^Uenn Court- Without KTue, the Sifters and Heirs of Henry were difabled
nej^ CalV, to inherit Edward \ yet neither Edward nor his Aunts were
attainted, or their Blood corrupted \ yet becaufe Henry was
the Medium through whom the Aunts nriwit derive their Pe-
digree
r
CiiAP. II. mmitm. 435
digree and Confangiiinity to Edward^ who was attainted,
the Ddcent was obftrudled till a Reftitution in Blood.
But if the Grandfather of Edward had been attainted,
and not Henry ^ this would not have hindered the Defcent
from Edward to the Aunts, becaufe that Attainder had been
paramount to that Confanguinity which was between Henry
and his Sifter, and that is proved by this third Cafe.
Willicim Hcbhy had IfTue Philip and Mary^ and was at- ^-tch. 40, 41 .
tainted of Treafon, and died, Philip purchafes Lands, and ^^'^-^^]^^ m
died without IfTue ; it was adjudged in that cafe, that non ]„ the*Caie"of
chftante the Attainder of William Hobby ^ Mary fhould in- Hobhy.
herit, becaufe the Defcent and Pedigree between Philip and
Mary was immediate, and the Law regards not the Difabi-
lity of the Father.
[{^ the Heir of the Part of the Father be attaint, the Land 49 ^- 3- 12.
Ihall efcheat, and fhall never defcend to the Heir of the fj^'^^^^' ^"^
Part of the Mother •, but if the Son purchafe Lands, and ^^^^'^^'
has no Kindred of the Part of the Father, but an Alien, it
Ihall defcend to the Heirs of the Part of the Mother.
IX. Thofe that are born fub fide^ legiantia^ obedientia
Domini Regis are not Aliens -, and therefore thofe that were
born in Gafcoyn^ Normandy^ Aquitain^ '^ our nay ^ Callis^ Co. 7. Ttep.i^.
Guy an, whiift they v/ere under the Dominion of the Kings Cal-vin\Q&(Q,
of England, were natural born Subjects, and not Aliens.
Scotland is a Kingdom by Union, and therefore thofe
that were born in Scotland under the Allegiance of the King,
as of his Kingdom of Scotland, before the Crown came uni- Faughan^iS^.
ted, were Aliens born, and fuch Plea againftfuch Perfons ^^3^'^^^-^"^
was a good Plea ; but thofe that were born fince the Crown
of England defcended to King James are not Aliens, for
they were born fub fide ^ legiantia Domini Regis -, fo thofe
that are born at this Day in Virginia, New-England, Bar- Sir John Bur-
hadoes, Jamaica, or any other of his Majefty's Plantations rough's Soye^
and Dominions, are natural born Subjedls, and not Aliens*, sefs">A 102.
fo likewife thofe that are born upon the King of England^
Seas are not Aliens.
X. But if an Alien be made an Abbot, Prior, Bifliopi
or Dean, by the Plea of an Alien, we fliall not difable him
to bring any real or mixed Action concerning the Poflef-
fions that he holds in his politick Capacity, becaufe the. f ami
is brought in auicr droit,
' E e 2 I'he
436 SDf Mtmi Book ni.|(
Vy. 2. pi. 8. The like Law is for an Executor or Adminiftrator be-
Sa^lT a6^' ^"^^^^ ^^^ Recovery is to another's Ufe, 3 Cro. 683. yetfeg
the fame Book 142. />/. 7.
1 Bronx.'nlo^\ If an A6lion is brought againft an Alien, and there is a
42. Verdi6t and Judgment againft him, yet he may bring a Writ
of Error and be Plaintiff there, and that fuch Plea is not I
good in that Cafe.
Goldshorough, Though an Alien may purchafe and take that which he
"Micl^ oE/iz ^^""^^ ^^^P ^^ retain, yet the Law hath provided a mean of
Coh'l^parfl' Inq^^iiy before he can be diverted of the fame, for until
Page's Cafe, fome Office be found, the Freehold is in him. I
foL 52. And this Office, which is to gain to the King a Fee
Walton ''ver. ^^ Freehold, muft be under the Great-Seal of England, for
Majhum. ' a Commiffion under the Exchequer-Seal is not fufficient to
Dyer 282. J- entitle the King to the Lands of an Alien born, for the
//.« WW- CommifTion is that which gives a Title to the King, for
Crown! ' before that the King hath no Title -, but in cafes ofTreafin,
i?£^/5. ^r/.i8. there upon Attainder the Lands are in the King without
•^^f 53- ^/^' Office, and in that cafe, to inform the Court a Commiffion
^^g e in, j^^y g^ ^^^j under the Exchequer- Seal
An Alien cannot purchafe Lands for his own Benefit ;
but he may for that of the Crown. Lucas's Reports 91.
94. 120. 122. 136.
Therefore if Land be devifed to an Alien, theCrownfhall
have it, ihid. 94. Yet if an Ahen, Tenant in Tail, fufFers
a common Recovery before Office found, the Recovery is
good, ibid. 124.^
3 Cro. 123. XI. If an Alien and a Subjed born purchafe Lands to
Plorivd. Com. jj^gj^ ^^^ ^Q j.j^^-j. j^ejj-s^ j]^ey ^j-e JQi^^ Tenants, and (hall
17 i. 3./0/. jpii^ ii^ Affize, and the Survivor fhall hold Place till Office
10 Hen. Hiirs found.
Cafe. By the finding of this Offxe the Party is out of PofTeflion,
if the fame be of Houfes or Lands, or fuch things as do lie
in Livery j but of Rents, Common, Advowfons, and
Qther Inheritances incorporeal which lie in Grant, the
Alien is not out of Polfeffion (be they appendant or in
grofs) therefore if an Information or an A6lion be brought
for the fame, the Party may traverfe the Office in that
Court, wh^re the Aftion pr Information Is brought for the
King.
And
Chap. II. £)f9liensf^' 437
And if the King obtains not the PofTefTion within the * 29.^2:^30,
Year after the Office found, he cannot feize * without a 5J» 32- ^IF^^
Scire factas, ^ vouched in
It is not for the Hmour of the King (an Alien purchafing Staun/ordplt,
of a Copy-hold) to feize the fame, for that the fame is a/^^-54-^^/'-i8.
bafe Tenure •, and fo it was adjudged, -f where a Copy-hold f Styles 20.
was furrendered to J. S. in Truft, that one Holland an Alien,
ihould take the Profits thereof to his own Ufe and Benefit ^
I upon an Inquifition taken, it was adjudged the fame was
void and fhould be qualhcd, becaufe the King cannot be
intitled to the Copy-hold Lands of an Alien, nor to the Ufe
of Copy-hold Lands, as the principal Cafe was.
XII. An Alien Infant under the Age of 21 Years, can- 13 & 14 Car,
not be a Merchant Trader within this Realm, nor can he 2.^. n. §. 10.
enter any Goods in his own Name at the Cuftom-houfe.
If an Englijh Man Ihall go beyond the Seas, and fliall 14, 15 H. 8,
there become a fworn Subjedt to any Foreign Prince or ^^P- 4-
State^ he fhall be looked upon in the Nature of an Alien,
and fhall pay fuch Impofition, as Aliens ; if he comes and
lives in England 2LgB.in^ he fhall be reftored to his Liberties.
An Alien is robbed, and then he makes his Executor, and ' ^o- H4»
dies, and afterward the Goods are waft, the Lord of the 3 -^'#''- 9*
Franchife fhall not have them, but the Executors. Fide 1 3 £. 4.
All Perfonal Adiions he may fue as on a Bond, fo like- i Bui/. 134.
wife for Words ; for the Common Law. accordino; to the ^l'verton\()'^.
Laws of Nations, protedls Trade and Traffick, and not to ^[^r^^ Tlac
have the Benefit of the Law in fuch cafes is to deny Trade, b. R.
Moore,
fol. 431 . But yet Aliehs. and Denizens are reftrained by the Statute of 5 Eli^. to ufe any
Trade, not having ferved feven Years as Apprentices within the Realm. Vide the Statute
what Trades, Trin. 1 2 Car. i . at Serjeant's- Inn in Fleet-ftreei, by all the Judges.
Button' 2, Reports, fol. 132. but quere that Refolution.
An Alien Enemy commorant here by the King's Licence, Lord Ray-
and under his Protedion, may maintain Debt upon Bond, ^^"^^ ^^^*
akhough he came not with fafe Conduct.
Where an Alien fhould take by courfe of Defcent, there
the Eflate fhall go over to him, to whom it would have
gone in cafe the Alien had been already dead ; as, where
Tenant in Tail has IfTue two Sons, and the eldefl is an
Alien, the younger Brother fhall inherit. Lucas 1 16. Yet
if an Alien be Tenant in Tail, Remainder to a natural
born Subjeft, the Remainder-man cannot come in until the
Eflate Tail be fpent. Lucas izo. CHAP.
(433)
1 II ■<— <.ii«jj— i6i^tai»yM
CHAP. III.
SDf l5aturali?ation am Deni'fattoit,
J. Whether the Kings of iingland
can naturalize nvilhout ASt of
Pariiament,
II. What Operation ^Naturalization
hath in refsyence to remo've the
Difabtlity a: !Ji g frD?n ihemftl<ves.
Jir. What Operation Naturaliza-
tion hath in reference to remove
Defers arijing from a lineal or
collateral Jncejior.
IV. Where Per/on s horn out of the
Realm may inherit by the La<v:s
of England.
V. A Kingdom conquered, and
united to the Croivn of England,
tvhether hy granting them a Pcn.cer
to make La^vs ca?i implicitely
create in them fuch a Sovereignty,
as to impcfe on the Realm oj Eng-
land.
VI. Of Perfons naturalized hy a
Kingdom dependent^ vuhether ca-
pable ofimpofing on one that is ah-
flute.
VII. Of Kingdoms obtained hy Con-
quejt, hovo the Empire of tie fame
is acquired, and hovj the Conqueror
fucceeds.
Vill. Ireland, wohat Condition it
nvas accounted before tbe Con*
queji in reference to the Nati'vts
of the fame, and ^whether ^
making it. a Kingdom, they can
create a Foreigner as a natural
born SubjeSl oy England.
IX. Of Aliens in reference to the
TranfmiJJion of their Goods and
Chattels by the Lanvs of France.
X. Of the Privileges the Kingt
of England, of old^ claimed in
the Efiates of Jews dying comma-
rant here, and hovu the fame at
this Day flands.
XI. Of Perfons born in Places an-
nexed or claimed by the Cronvn
of England, how efieemed iy
the Lavus of the fame,
XII. Of Denization, and nvhat
Operation it hath according to tbt
Lavos of England.
XIII. Where an Alien is capable of
Doiver by the Lavos ^England,
and vihere not, and of the total
Incapacity of a Jew.
XIV. Whether a Denizefi is capa-
ble of the Creation and Retention
of Honour, by the Laws of
England.
I. 'T"^ H E Father and Mother are the Fountain of the
X Blood natural, and as it is that that makes their
I Hue, Sons of Daughters, lO it is that that makes them
Brothers and Sifters -, but it is the civil Qualifications of the
Blood that makes them inheritable one to the other, and
capable of enjoying the Immunities and Privileges of the
Kingdom ; but that is from another Fountain, viz. the
Law of the Land, which finding them legitimate, doth
tranfplant them into the Civil Rights of the Land, by an
Ad called Naturalization; which does fuperinduce and
cloath that natural Canfanguinity with a Civil hereditary
Quality,
Chap. III. Of l3atm:aIijiittom 439
Quality, whereby they are enabled not only to inherit each
other, but alfo to enjoy all the Immunities and Privileges
that mere natural born Subjeds may or can challenge.
II. According to the Laws o^ Normandy the Prince might Ser<v. hb. 2.
naturalize-, but fuch Naturalization could not diveH tiie^^/'- 12-
Defcent already vefted.
But according to our Law by no way but by A5f of Par- i Injl. 129. a.
liament^ and that cures the Defeat as if they had been born
in England^ and no Man fhall be received againfl an A^ of
parliament to fay the contraiy.
Therefore if the Father an Alien has Iffue a Son born
here^ and then the Son is naturalized, the Son Ihall inherit.
If the Father, a natural born Subje6l, has IfTue an Alien Com, LU.izg,
who is naturalized^ the Father dies, the Son fhall inherit.
III. Naturalization does remove all that Difability and
Incapacity^ which is in Aliens in refpe6l of themfelves, and
fo puts them intirely in the Condition as if they had been
horn in England,
The Relative Terms, as if horn in England^ is generally
ufed to fupply t\iz p erf onal Defe£f of the Parties naturalized^
arifing from their Birth out of England^ and therefore fhall
never be carried to a collateral Purpofe, nor cures ^ Dif.^afe
of another Nature, as half Bloody IlUgitimaiion, and the
like ; but all Difeafes, w^hether in the Parties themfelves,
or refulting from the Anceflor, it cures.
Atls of Parliament of this Nature may be fo, penned, as
to cure Defects in the Father or Anceflor^ or in the Parties
tJoemfehes,
If Reftitution in Blood be granted to the Son by Ad of Coke 3. Infi^
Padiament, this cures that Difability that refulted from the-^''^* ^^^*
Father^s Attainder, and that not only to the Son, but alfo
to the collateral Heirs of the Father •, the true Reafon of
this is, becaufe the Corruption of the Blood by the Attainder
is only of the Blood of the Father, for the Sons Blood or colla-
teral Heir was not at all corrupted -, for the Scope of the A6t
takijig notice of the Father's Attainder, does intentionally
provide againfl, and remove it, for otherwife the fame had
been ufelefs.
But in Naturalization, without exprefs Words, it takes
no notice of the Defeds in the Father or other Anceflor,
nor removes them,
E e 4 And
44^ €)f BatUta!t?attOu; Book III.
And therefore fuch Aofs of Parliament as take no other
notice but of the Ferfon naturalized^ s Foreign Btrth^ the fame
cures not any Difability of Tranfmijfwn hereditary between
the Father, Brother, or any other Anceftor, refuhing from
the Difability of them without a5fually naming of them ; As
, for inftance, the Father an Alien, the Son naturalized by
Act of Parliament, the Father or any other Anceftor an
Alien purchafes Lands and dies, the Son fhall not take by
reafon of the Difability in the Father, but there may ht
Words inferted in the Ad: that may take away the Impe-
diment.
IV. There are four ways by which Men born out of
England^ may inherit in England^ befides by the Statute of
Edward the Third, De Natis ultra mare.
1 . If they be born in any Dominion of the King's, when
he is adually King of England.
2, If they be made inheritable by A61 of Parliament in
England.
efl/w«*£Cafe, 3. If they be born Subjeds to a Prince holding his King-
fo/. 21. b. clom or Territories as Homager and Leigeman to the King
of England during the Time of his being Homager : So
the IVelch were inheritable in England before 12 EL i.
though Subjects to the Princes of IVales^ who v/ere Ho-
magers to the King of England. So v/ere the Scotch in
Edward the Firft's Time ; but when once the Homage de-
termines, then they becom.e Aliens, otherwife Subjeds,
* Placit.Parl. and upon that Reafon Magdulph a Scot appealed * from the
^i Ed. \. fol Judgment of his Prince to Edward the Firft ut Superiori
15 ^» *57- Domipo Scotia ; but then it muft be underflood where fuch
Prince is Yiomz^tr fubje5lionis^ and not only infeodationis^
for another King may hold of the King of England an
IHand or other Territory by Tenure, and not be his
Subjed.
4. If the King of England enters in a hoftile manner the
Territories of another Prince or State, and any be bom
within any of the Places or Guards poITefTed by the King's
Army, they are looked upon in Law to be within his Pro-
4- F/' D' ■ ^^^^^"9 ^^'^ ^^^^^^ Perlbn born is a natural born Subjeftof
fol. 224. "^ ' England -, but then he muil" be of Parents Subjeds f , not
placit. 29. hoflile ; and therefore a Baftard born in Tangier is capable of
Crnnv njerf. purchafing Land in England, if his Parents were Subjects.
Ranifiy, Lord *^ P o ' -^
Vaugban^fol, *r
301, ^»
I Chap. III. JDf Batutali^aticin 441
V. Thofe that are born in Ireland^ and thofe that are
born in Scotland^ are all alike ; for their Births are within
the King's Dominions, and they are born under the like
Subjedlion and Obedience to the King, and have the like
Band of Allegiance adfidem Regis •, yet if a Spaniard come^
into Ireland^ and by the Parliament is there naturalized,
though perhaps this may qualify and cloath him with the
Title of a natural born Subjed of Ireland^ yet it has been
conceived, that it will not make him a natural born Subjedb
of England.
For the Union of Ireland to that o^ England^ is different My LordC^I^
from that of Scotland ; for the firft is dependent as a King- ^^^^^fse7jen
dom conquered, the latter independent. Though Henry denies that ^^
the Second, after his Conquefl of that Nation, did remit ever there was
over from England the ancient fnodus tenendi Parliamen- any fuch ^/o-
turn, enabling them to hold Parliaments, whicK after was ^^'^ ffe'fame
confirmed by King John ; yet that was by no other Force is an Impo-
than bare Letters Patents. Now when a Nation is once fture. Vide his
conquered, there remains no Law, but that of the Con- ^''f* °!!?°"5
T ' , , , - . ^1 J nour, /<?/. 70b.
queror; and though he may mcorporate luch conquered ^jo^ -^,3^' ^^
Nations with his own, and grant unto them their ancient 721.
Parliamentary Ways of making 0^ Laws *, yet the Con-
queror can no ways grant unto them a Power, by virtue of
fuch Grant or Confirmation, as to impofe upon his own
Country •, for he himfelf before fuch Conqueft, could not
make a natural born Subje6l without Ad of Parliament,
and moil certainly his Conqueft adds nothing to his Power,
tho' it does increafe his Dominion.
The Doctrine with refpe6l to Scotland is intirely altered
by the Union fince our Author wrote.
VI. Again, Kingdoms that are abfolute under one Prince, Selden'sTnlts
adfidem Regis, there the Ads of each other are reciprocate, f ,^°'l'^y'
and one naturalized by the Parliament or Scotland, is as Scotland, the
naturalized in England, becaufe Scotland is a Kingdom ab- Title hCaro-
folute, and yet in the Cafe of Craw and Ramfey^ it is there ^^ ]f^'%^^,
held, that an Alien naturalized in 6'c^?//^;?^ remains an Alien ^/^^^//,Xr-
notwithftanding ; but Ireland is a Kingdom dependent and nia Rex ; but
fubordinate to the Parliament oi England, for the Parliament in helandy
in England can make an A6t to bind Ireland, but not e con- ^J^'"^' ^^^'
verfo. Now to be a Native 0^ Ireland, is the fame as to be T^^'g Scotland
born is not a Do-
minion be-
longing to the QxowtiO^ England, but to the Kln^of England. * Vaughan 301.
442 ®f jaatUtalljatiOtt* Book
born in Ireland^ but that is by the Laws of Ireland-, but
be born in Ireland^ and to be the fame as to be born
England^ mud be by the Laws of England : But there is no
Law that hath enabled them with fuch a Power, as to na-
turalize further than their own Laws extend -, but the Law
of Ireland does not extend into England^ therefore Natura-
lization in Ireland operates only in Ireland^ becaufe of the
Failure of Power.
ti
♦From hence ^^K- Again, Kingdoms that are conquered, the Empire
it is, that the of thc fame may be acquired by the Conqueror, only as it is
King at this \^ ^ King, or other Governor, and then the Conqueror
alien oHb?!^ only fucceeds in his Right, and no further* j or alfoas'tis
Ireland with- in the People, in which Cafe the Conqueror hath Empire,
out an Aftof fo as that he may difpofe of it, or alienate it as the People
Parliament, themfelves might ',for Uis one 'Thing to inquire of thsfbini^
RiVht he flic- cinother^ of the Manner of the holding of if^ the which arc
ceeds, could applicable not only to corporal Things, but incorporeal alfo:
not do it, pQj- as a Field is a thing poiTelTed, fo is a PalTage, an Ad,
can he grant, perty, Others by a Right of Ufufrudtuary, others by a tem-
Portus Maris porary Right. Again, by the Will of the Conqueror, the
ohedtentits ad- Kingdom or Republick that is fo conquered, may ceafe to
lsf%TrQ7iatio' t>e a Kingdom or Commonwealth, either fo that it may be
jiibus Ecclejta- an Acceflion of another Kingdom or Commonwealth, as the -
rum Metropo- Roman Provinces, or that it may no ways add hereto any
CatZdZl^m Kingdom or Commonwealth, as if a King waging War at
Cancellar^ his own Charge, fo conquer and fubjed a People to him-
Jufliciar. nor felf, that he will have them governed, not for the Profit ot
iKcro ^ in'ixto ^}^^ Pcoplc chicfly, but of the Governor, which isaPro
minymort, P^rty of that we call Herile Empire f, not of Civil ; for
ill which are Government is either for the Profit of the Governor, or for
infeparabiy the LTtility of the Governed ; this hath Place among Free-
Kiif "dom^^ ^ "^^"' ^^^^ among Mailers and Servants. The People then
■^ImpeHuma- that are kept under fuch Command, will be always for the
imd efi oh uti- futurc not a Commonwealth, but a great Family : Hence
Jitaiem ejus jj. jg ^h^t w?^ may plainly underfland, what kind of Empire
ZerUh^r^st ^^^^ is, which is mixcd of Civil and Herile, that is, where
cum hahet, il- Servitude is mixed and mingled with fome perfonal Li-
lud inter do- bcrty : For if the People are deprived of Arms, command-
^ihos &/rr- ^^ ^^ ^ Yxon but for Agriculture, to change their
4e Republica.
HAP. in. Of BatuiMlif m'oiu 443
ano'uage and Courfe of Life, and abflain from the Ufe of
any of their Cuftoms, to be confined * to their own * Cafe of the
[oufes, Caftles, or Plantations, nor wander abroad ; to ^'^^^ K
: governed by fuch Laws as the Conqueror fhould tranfmit the Stat, of
. them t, all which are the Tokens of a Nation by Con- 28 H. s. of
left made fubordinate to the Conqueror, and are part He- Abfentees,
e, and part Civil ; and though they may remain a King- ^j-ibes ^^^"
)m, and abfolute within themfelves as to the making of /hi. 3/4.
aws, to oblige each other, yet they can no ways impofe t Orelfethey
I their Conqueror ; for though that be true, which in ^^^^r^th^rn"
uintilian is alledged on the Behalf of the Thebans^ That ci. 18 H. 3/
at only is the Conqueror's which he holds hlmfelf •, butw. 17. Jno-
1 incorporeal Right cannot be holden, and the Condition ^')^^^ ^/^^.
" an Heir and of a Conqueror is different, becaufe the e^eheuTaiTut
ight paffeth to the former by the Delcent, but only the qui ^jidjjent,
! hin^ to the laft by virtue of the Conqucft. But certainly «/ q^os 'vkif-
I; at is no Objedion, for he that is Mafter of the P^rfons,>2rwt«i
^ alfo Mailer of the Things and of all Right which does imperarent.
long to the Perfons : for he that is pofTefled ||, doth not de bello Gal-
)^d% for himfelf, nor hath he any thing in his Power who ^^^^^^ ^- ^•
^ ;th not himfelf ; and fo it is if he leaves the Right of a
lingdom to a conquered People, he may take to himfelf 11 ig„ ^^;;^
' me things v/hich were the Kingdom's, for it is at his Vl^d.- /ernjlme eft,
I re to appoint what Meafure he will to his own Favour : ^^ ^^g- 7^^'^f
I rom hence it is we may obferve what fort of Empire that jr/^^^f ^£^»^^'
j ingdom is at this Day. jud. de Adult,
VIII. Now Ireland.^ before the fame became united to the
rown by the Conquefl of Eenry the Second, the Natives
ere mere Aliens, and out of the Protedlion of the Laws C^^'^^Z/r's Cafe.
\ this Realm ; yet when once they became a conquered ^ ' ^'•'^ '^^*
eople, and fubjed to the Crown of England^ and united
ifidem Regis^ then did arife their Allegiance -, but that
nion neither made them capable of the Laws of England^ -
Dr of their own, till fuch time as the Conqueror had fo
!clared them : Now what do they defire in order to revive
leir Government ? Firfl, they humbly beg of King Henry
le Second, that fince he was pleafed that they fhould
'main as a diftind Dominion, that their ancient Cuftoms or
Ymsjhoiild not continue j that he would he ^leafed to or^
dain^
444 ®f Bntutalijatfoiu Booki
• For at a ge- datn^ that fuch Laws as he had in England * Jhould he
"^ cl^/^^f ^ F^r<:^, and obferved in Ireland ; purfuant to which he
all the Oergy grants them power to hold Affemblies by the three EJlata
there, Jtmo of the Realm^ and that they fliould be regulated according
1170. Eccle- j-Q x\\t Inilitution and manner of the Parliaments
n
oiEn land^ /^W, fhould have the Benefit ofM<3^;^^ Charta^ and other the
wereellablifh- great Laws o{ England ^^ and by fuch Means put them into
ed, and made a Method of governing themfclves according to the knowi
/^ l^^Tce ^^y^ ^^ England^ and to make fuch Laws as fhould
rlldui 'cam- among themfelves •, and by following the Example of
irefij^s fopo- thofe of England [!, their Judgment might be fupervifed,
graphia Hi- and corre6led according to the Juftice and Laws of En9>
hernia hL 3. j^^^^ 1 ^^'^^^ ^f ^ ^ j ^^^ ^^^ ^ikt,
cap. 18. rat. ' / ' rr
^ E.i.m, 13. Hibern. -^ Matthenv Paris Hi/. Angl. pag. 121. Leges Angliee ab nmni-
bus fun t grate accepts. \\ 7 Coke 23. Rjlfs Placita Parliam. 198 to 208.
Now here is no continuing or reviving their ancient Go-
. vernment, but the introducing a new one, part Civil, and
part Herile *, nor indeed had they before any fuch thing as
S'lvJohiDa- a Parliament there, or general Affembly of the three
^/^i on the £ftates; for when Henry ^ the Second went over, there
Ireland, 10' Were fcvcral Klngs or Scepts, who had their feveral and
104, 105. diftind: AfTemblies \ but when they fubmitted, this great
Afiembly of Eftates which he conftituted, was a colledion
outof all of them, for their future well Government •, fo
that whatfoever modus of Regimen the Conqueror declared,
it was no more than for the well governino; of the Place,
and making fuch Laws as were necefiary, and proper a- ^v!
mongft themfelves : But for them to impofe, by virtue of
an A6t of Naturalization, upon an abfolute Kingdom as
Lord Vaugh- England.^ without the Confent of the three Eftates of the
an^foL 301. fjjpi-je furely was never intended, much lefs efFeded : The
Cra^w <ver us ^ r • 1 1 i i • i • 1 r
J^am^'ey. ^aic IS both great, dubious, and curious, thererore (lu^ff-
IX. By the Laws of France all Perlbns not born under
the Legiance of that King, are accounted Aliens, and it
they die, the King is entitled to their Eftates -, for all (hall
be feized into his Exchequer., or Finances \ but it they
make a Will, the Prerogative is difappointed : Yet that
extends only to Chattels perfonal, in which Strangers pal-
ling through the fame, have greater Immunities than A-
liens there refident 5 for Travellers dyinff without Wiethe
^ Hem
Chap. III. Of Batutalijatfan* 445
Heirs or Executors fhall have Benefit and Poflfeflion of
their Eftates.
X. The like Priviledge the Kings of England formerly
daimed in the Goods and Eftates of the Jews after their
Death, if the Heir fued not, and paid a Fine to the King
to enjoy them, as by this Record appears.
, Jurat ores fuper facrum fuum dicunt quod pradi5fum Mef-
fuagium fuit quondam Elise le Bland, quu ^c, diem claufit
ixtrmum, et quia mos eft Judaifmi quod Dominus Rex om-
nia bona Cattalla Judei mortui de jure dare foterit cui vo-
luerit, niji propinquior h^res ejufdemjud^i finem fecerit pro
hares di^iEYix, Jinem non fecerit pro Catallis ejufdem Elice "'""*'
hahendis^ &'c.
But whether the fame is now ufed, may feem doubtful ;
for the Goods of Aliens efcheat not at this Day to the ^^'"''^^'^ ^^^^•
Crown, but Adminiftration fliall be committed to the next Hohbfs Cafe.
ofkin. Sfepben\Cz{(i.
XI. By the Laws of jfrancc, Flanders^ Milan, Savoy y
and the Frenche Compte, though poiTefTed by feveral other
Princes, yet the Natives of the fame partake in the Immu«
nities with the natural born Subjeds of France, and if they
die without Will, their Heirs claim their Eftates ; the Rea-
fon given, becaufe, fay they, thofe Countries were never
alienated from them, but were always annexed to the
Crown of France, who acknowledges them to be his Sub-
jcfts to this Day.
But in England it is otherwife, for thofe that are born in
Gafcoin, Normandy, Aquitain, and thofe other Territories
\vhich were formerly the Pofleflions of the Crown of Eng-
land, in which if any had been born when fubjed to the ^r^^^ rpj^j^
lame, they would have been natural born Subjeds, yet was before the
now are eftcemed Aliens ; and fo was the Cafe vouched Statute of zc
h-^ Shard, of a Norman, who had robbed together with 3- *ts
other Englijh, divers of his Majefty's Subjects in the nar- ^sJmrd'm Jo.
row Seas, being taken and arraigned, the Norman was Affize//. 24
found guilty only of Felony, and the reft of Treafon -, for See Calvin ^
that Normandy being loft by King John, was out of the ^^^^» 7 Re-
Allegiance of FJ. III. and the Norman w^as accounted as
an Alien.
XII.
446 S)f BiltUtalfMtfOlU Book
XII. Ill France the Kings may there Denizzee, folfol-
wife here in England^ but with this Difference, the Lettenl
of Denization by thofe of France remove the total Difabil
^. . J „ lity and Incapacity of the Alien :
129. a. The ^^^ i" England the Charter of Donation or Denization^
Difference be- is but a temporary, partial, and imperfed Amotion of the
tyveenNatura- Difability of an Alien ; for though it puts the Perfon in-
Denization, ^^"i^ied, as to fome Purpofes, in the Condition of a Sub- -
je6l, and enables a Tranfmiffion hereditary to his Children,
born after the Denization, yet it does not wholly remove
the Difeafe or Nonability, as to the Points of Befcent off^
hereditary 'Tranfmiffion^ and refembles a Perfon in cafe of
Co. I hji. 2n Attainder '9 and therefore if he purchafes Lands and dies'!
fol 2. without IfTue, the Lord by Efcheat fhall have the Lands.
And therefore in lineal Defcents, if there be a Grand-
father natural born Subjed, Father an Alien, Son natu-
ral born Subje6t, the Father is made Denizen, he fhall
not inherit the Grandfather; and if the Father dies in the
Life of the Grandfather, the Grand-child (though born •
after the Denization) fhall not inherit the Grandfather, fofl'i
the Denization does not remove, neither the perlbnal, nor
the confequential Impediment, or Incapacity of the Father. "'
Qodfry and So like wife in collateral Defcents ; as for Inftance, the
G^^r? ^^n^ Father a natural born Subjed, had Ififue two Sons Aliens,
Dyer A A. who are both made Denizens, and one dies, the other •
1 hji. ^i. b. Ihall not inherit him,
XIII. The like Law in Dower, a Man feized of Landi\%
in Fee, takes an Alien to Wife, and then dies, the Wife
fhall not be endowed : But if the King takes an Alien to
"Wife, and dies, his Widow Queen fhall be endowed
by the Law of the Crown. Edmund j Brother of King
16 E^. i.Roi. Edward the Firfl, married the Queen of Navar, and died,
part I. and it was refolved by all the Judges, That Ihe Ihould be
endowed of the third Part of all the Lands whereof her
Husband was feized in Fee.
1 I^iJf. 31. b. A Jew born in England^ takes to Wife a Jew bornalfo
3 2. a. jpj England., the Flusband is converted to the Chriflian Faith,
purchafes Lands, and enfeoffeth another, and dieth ; the
Wife brought a W^rit of Dower, and was barred of her
Q.^auf, H. 3, Dower. Silvia vero contra juft it iam eji q^iiod ipfa dot em ft-
Mm. 17. ^^f^ ^^i j^abeat de tenemento quodfuit virifui ex quo ifi ^^^'
''-'' verjiunefua noluit el adharere. ^ ctm eo. converters
HAP. III. ©f Batutali?at(on* 447
.XIV. If an Alien be a Diffeifor, and obtains Letters of C- ' inft.foL
lenization, and then the DilTeilor releafe unto him, the ^7^« "^•
jno- fhall not have the Land \ for the Releafe hath altered
le Eftate, and it is as it were a new Purchafe ; otherwife
is, if the Alien had been Feoffee of the DilTeifee.
j And though Aliens are enabled by Charter of De-
ization to a TranfmifTion hereditary to their Pofterity
f Lands, yet a Denizen is not capable of Honour^ nor
) a Tranfmiffion of the fame, without Naturalization by
Parliament 'j for by the Charter of Denization he is made,
ioft, feu tanquam ligem \ but to be a Member of Parlia-^^* 4- ^'^Z^'-
lent, he muft be ligeus revera^ ^ non quaft^ for by his be-
aming a Nobleman, he claims the Place of Judicature in
•arliament, the which he cannot till naturalized by Ad of
'arliament, and then he may claim as eligible to the fame, Decreed' in
r any other : And the fame Law is at this Day in France^ the grand E-
fhere no Foreigner can hold any Honour or Dignity in ftate of Paris,
le State or any Part of the Government. 'Tis true, Car- '^°7-
inal Mazarine^ who was an Italian, held a great Share
1 the fame, but it was i;/, ^ manu forti, and was the V, de Man-
kcafion of introducing a Civil War in that Kingdom ; ^^«^^ ™^- ^f
[id yet the late Duke oi RicJmond claimed the Honour or ^'•^^^^'Z- VS-
)ignity of a Peer of France ^ as Lord of Auhigny, but that
^as a Title rather annexed to the Tenure of that Seigniory
lian otherwife.
And though his Majefty has been pleafed to confer the
)ignityof Dutchefsof P^r///;?^^/^ on the Lady ^erouaille,
'et the fame is rather Honorary than a Title confident
vith the Laws o^ England : For though his Majefty is the
^untain of Honour, and may call the meaneft of his Sub-
eds to the higheft of Dignities, yet it is their Civil Qua-
ifications which make themcapable of enjoying thelmmu-
lities and Priviledges of Peers ; but that flows from ano-
ther Fountain, even the Law of the Realm, which as to
Denizens difable them to take fo fignal a Mark gf Sove-
reignty without Ad of Parliament.
CHAP.
( 448 )
CHAP. IV.
jDf Mtm, ana Ctpal^ per Medietatem, M)tttii
lotȣ5, ana ftiljccc not.
I. Of the manner of Aliens obtain-
ing Trials per Medietatem, at the
Common La<^v, and of the Anti-
quity of the fame.
II. Of the making the fame a Lanv
uni<verfal wcithin this Realm, as
to feme Ferfons^ afteravards ge-
neral, as to all.
III. Of the Writ and feme Ohfer-
'uations on the Summons offuch an
Inquefe.
W . Of the Opportumty loft or gained
by praying this Immunity.
V. Of the aivarding of Tales Mkt
Requeft on fuch Enquiries.
VI. Where this Immunity does not tx-
tend to Aliens y and 'where it dm '
in Matters Ci'vil and Criminal.
VII. Of the Validity of a Witiu[t
Alien f and of an Infdel.
VIII. The Title of a Renegadat,
IX. Of the Benefit of the Kin^i
Pardon, nnhether it extends to cm
Alien, <whofe Abode is here, hut
happens to be abfent at the fine
of the promulgating.
/
I. ^Tp R lAT' 10 bilhtguis or per medietatem lingiue^ by
JL the Common Law was wont to be obtained by
Grant of the King, made to any Company of Strangers,
Stanf. FL Co- ^s to the Society of Lombards or Almaignes., or to any
ron. lib. 3 cap. Other Corporation or Company •, when any of them were
7- impleaded, the Moiety of the Inqueft fhould be of their
own Tongue ; this Trial per medietatem in England is of
great Antiquity, for in fome Cafes Trials per medietatm
Lamb.fol.Qi, was before theConqueft, Viriduodeni Jure Confulti^An^IU
feXy Wallicg totidem^ Anglis^ JVallis jus dicunlo, and as the
C9. 1 . Inf. Commentator obferves, it was called Duodecim virile Ju-
155- ^' dicium.
II. This Immunity afterwards being found commodious
27 E. 3. cap. to us IJlanderSy became univerfaU for by the Statute of 27
18. £.3. cap. 8. it was enabled, that in Pleas before the Ma-
jor of the Staple^ if both Parties were Strangers^ the Trial
fhould be by Strangers ; but if one Party was a Siran^^r,
and the other a Denizen^ then the Trial fhould be per m-
dietatem Lingua : But this Statute extended but to a nar-
zS E. %.c.i7. row Compafs, viz. only where both Parues were Mfr-
' chants or Minifters of the Staple^ and the Pleas before the
Major of the Staple : But afterwards in the twenty-eighth
Year of the fame King's Reign it was enaded, ^W ^^^
Chap. III. ^UmS Ctpnlg. 449
manner of 3|niluc(f j2?, toljic^ lua0 to fte ulm or matie a-
monffft SiUm^ rt 2Deni^en<s, hz tljtv ^^rcljantjj, or 0^
ttiers^, ajs toell licfore tlje ^afor of tftc Staple, assf before
an? otijer 3!u^ice0 or ^inift^rs: Although the King be
Party, the one half of the Inquell or Proof llialJ be Deni*
zens, the other half AUois^ if fo many Aliens and Fo-
reigners be in the Town or Place where fuch Inqueft or
Proof is to be taken, that be not Parties, nor with the Par-
ties in Contrad, in Plea, or other Quarrel, whereof fuch
Inqueft or Proof ought to be taken ; and if there be noty2?
many Aliens, then fhall there be put in fuch Inquefts or
Proofs as many Aliens as fliali be found in the fame Town
or Places, which be not thereto Parties, as aforefaid ; and
the Remnant of Denizens, which be good Men, and not
fufpicious to one Party or other.
By which Statute the fame Cuftom or Immunity was Bat if It be for
made a Law Univerfal, although it be in the Cafe of the Treafon, e
King, for the Alien fhall have his Tv'ul per medietatem. <:°^j^^'J^^^
It matters not whether the Moiety of AJiens be of the "* ''^•S-
fame Country, as the Alien Party to the Adion is; for ZJ^^r 144.
he may be a Dutch Man^ and they Spaniards^ French
Walloons^ &c. becaufe the Statute fpeaks generally of
Aliens.
III. The Form of the Venke facias in this Cafe, is. Tie
VicinetOy Sec, quorum una medietas fit de Indigenes, ^ alte- Cro. EUz.
ra medietas fit de alienigenis nafis, Sec. And the Sheriff 8 18. 841.
ought to return twelve Aliens and twelve Denizens, one ^^'^' ^'^Tnai.
by the other, with addition which of them are Aliens, and
fo they are to be fworn ; but if this Order be not obferved,
it is holden as a mifreturn.
It has been conceived of fome, that it is not proper to
call it a Trial per medietatem Lingua, becaufe any Alien
of any Tongue may ferve ; but that furely is no Objection,
for People are diftinguifhed by their Language, and Me-
dietas Lingua is as much as to fay, half Englifh, and half
of any other Tongue or 'Nation whatfoever •, nor matters it
of y}\i?Li fufficiency the Jurors are, for the Form of the Ve- ^^o- ^l- 841
nire facias fhall not be altered, but the Claufe of quorum
quilibet haheat 4. /. &c. fliall be in.
If both Parties are Aliens, then the Inqueft lliall be all
EngliJIo i for though the Englifh may be fuppofed to favour 21 H. 6. 4.
themfelves more than Strangers, yet when both Parties
F f are
u
45^ Mtm CtpallS* Book III,
'^ixtJliens^ it will be prefumed they will favour both alike
without any Difference.
2 Ro, Abr. . Where an Illue is joined between a Denizen and an A-
^^^' lien, and a Venire facias awarded ^^r Medietatem Lingua;
and the Sheriff returns 12 Denizens and 12 others for A-
liens, whereas in Truth there are not 1 2 Aliens nor 6 A-
liens returned : In this Cafe it feems that the Alien may '
challenge the Array, for otherwife he hath no Remedy, if
he fhall be concluded by the Sheriffs Return.
Dv. 2?,. I. /« ^'-^t ^^ he doth not challenge, and fo they are impanelled,
Margine, i^c. it is fufficicnt ; yet if eight Denizens and four Aliens
are impanelled it is ill, becaufe it appears in this Cafe that
the Trial is not per Medietatem.
Cro. El. 293 . If 2. Writ of Inquiry of Damages be awarded in an Adion
between a Denizen and an Alien, the Inqueft fhall be all
of Efigltffj^ and not Pare of Aliens for it is out of the
Statute.
Dyer 28. a. IV. If an Alien is party, who flips his Opportunity, and
fuffers a Trial by all Englijh^ the Judgment is not Erro-
neous', for if he will be fo negligent as to flip that Advan-*.
(^) ^' H4- rage which the Law gives him, it is his Fault \ (a) for the'
Alien, if he will have the Benefit of that Law, muft pray
a Venire facias per Medietatem Lingua^ at the Time of the
awarding the Venire facias : But if a negled: of that Op-
portunity happens, yet if he prays it after the awarding a
21 //. 7. 32. general Venire facias^ the fame may be retrieved, fo as it
be before the Venire be returned and filed, for then he
may have Venire facias de novo^ or otherwife he cannot,
{h)PLCorou ^^^ j^Qj. ^^^ i^g afterv/ards challenge the Array for this
2 j^^.;^/^!?'* Caufe, if it falls out the Juries are all Denizens y though
Cro. Et. 562. Stamford feems to be of a contrary Opinion, for the Alien
" £ 4. 1 1 I " ^^^^ft pi'^y it '^^ ^'is Peril, Heyward againfl Lipfon,
V. If there be a general Venire facias^ the Defendant
cannot pray a decern T'ales^ &c. per Medietatem Lingua up-
loCo. 104. a. on this, becaufe the Tales ou^t to purfuethe Venire facias:
But if the Venire facias be per Medietatem Lingua, the
Tales ought to be per Medietatem Linguae, as if five Aliens
and five Denizens appear on the principal Jury, the Plain-
tiff* may have a Tales per Medietatem ; but if the Tc.Us\^
Cro^ EL 818, general ^^ circumflantibus^ it hath been held good enough,
for there being no Exception taken by the Defendant up-
on the cKvarding thereof, it fliall be intended well awarded.
•' Chap. IV. 9Il£ttS Ctpl0* 45^
' If an Alien that lives here under the Protection of the ^i ff- 4-
KirJg of England, and Amity being between both Kings, f^^f/Z'^^H'
■ commits Treafon, he fhall by Force of the Adi of i and 2 r»r. icps^l
Philip and Mary, be tried according to the due Courfe of Cafe by all the
the Common Law, and fhall not in that Cafe be tried per J"^§es-
i mdietatem Lingua.
But in the Cafe of Petit Treafon, Murder, Felony, &c. Dyer 144.
if he prays his Tryal per medietatem Lingua, the Court ^^erf tlfr'''^"^
ought to grant it. Point is fully
handled, Co. Infiit. ^.part.foi 27.
•v.
Yet if an Information be exhibited againft an Alien, and Moore 57.
iXiEngUjhman, the Tryal is v^oi per medietatem, but accord- ^^rrhQ^^Q,
ing to the Common haw.
If an Alien in League bring an A6lion (if there be Caufe) CoUnjrcCoh^
the Defendant may plead in Abatcmeut ; but if it be an ^?.^^'^^'' *^*'
Alien Eyiemy he may conclude in the A6lion. ^,^^ i6o.-ff.
In an Action for Words the Defendant pleaded Not 27 ^d'. 3. r. 8.
Guilty, and faid he was an Alien born, and prayed Tryal 28 Ed. 3. 13.
Mr medietatem Lingua, which was granted, and at the nift ^ 'J^' ^'
prius in London, but fix EnglijJomen and live Aliens ap- /„ Margine,
peared, and the Plaintiff prayed a 'Tales de Circumftantibus
per medietatem Lingua, and it was granted, fo there want-
ed one Alien, and the Record was :
Ideo alius Alienigena de Circumftantibus per Vic. London, 10 Co. 104. 2.
ad rcquijitionem infra nominati Julii Ca^faris, per mandatum
Jufticiarioruin de novo appofito, cujus nomen pannello pradi^l,
affilatur, fecundum formam Statuti in hujufmodi cafu nuper
ediii i^ provifi \ qui quidem Jurator fic de novo appofitus^
viz. Chriftianus Dethick Alienigena exatlus venit, ac in Ju-
rat am illamfimul cum aliis Juratorihus pr^edi^. prius impa-
ndlatis i^ juratis juratus fuit, &c. It was found for the
Plaintiff, and afterwards moved in Arrcfl of Judgment,
That no Tales was to be granted de Circumftantibus, when
the Tryal is per medietatem Lingua, by the Juftices of Nifi
prius, by the Aft of 35 //. 8. becaufe in the Ad: it is fpoken ^i^'.^^^ 5|-
of Freehold of Jurors, and an Alien is not properly faid of ,^^.^y^J^-^,>;^;
any Country, or to have any Freehold ; but it was ^djiv'g- /:r.'-l.er/as^/Ji-
td becaufe the Statute was made for fpeedy Execution, that tif Currevy,
it fhould be expounded favourably, according to the Intent ^'''^^'^' S^S-
and Meaning of the Makers of the A61 ; and though in
this Cafe the Tales was prayed by the Plaintiff, whcrre it
F f 2 ought
45^ ai(ens ^tpals*
oiiglit to have been ad requtfitionem DefendentiSy yet that
lliould be taken to be but a Mifprifion, and would be
amended. '
Dy. zS. VI. If the Plaintiff or Defendant be Executor or Adml
aUarfine.^^ y^lflrator^ though he be an Alien^ yet the Tryal Ihall be by
^°' -^ • "''^' Englijh, bccaufe he fueth in Si^ttr tl^Oit ; but if it beaver-
red, that the deflator or Inteftate was an Jlien^ then it Ihall
be per medietatem hingUc-e. ^
Sherley a Frenchman^ who joined with Stafford in the Re-
bellion, in taking of Scarborough Cafile in the County of
l^crky he being taken, was arraigned in the King's Bench
upon an Indictment of 'Treaforiy and the Indi6lment was
'J Co. 6. b. contra legiantiam fuam debit am •, and the Indiftment was
ruled to be good, although he was no Subjeft, becaufe it
was in the Time of Peace between the ^leen and the French
King, But if it had been in the Time of PFar^ then the
Party lliould not have been indi5fed^ but ranfemed. It was
likewife ruled there, that the Tryal was good, although
the Venire facias awarded in Tork was general, and not k
medietate Lingua ; for fuch Tryal per medietatem Liniu^
does not extend to Treafons^ and the Indidlment ought to
I>i;cr. 145. omit the Words, Naturalem Dominamfuam, and begin that
H^b. 271. he intended Treafon contra Dominam Reginajn, &c. Hill.
SalL 633. ^g Eliz. in B.R, Stephana Ferrara de Gama's Cafe in Dr.
Lopez's Treafon.
7 Co. 6. b. If an Alien Enemy come into this Realm, and be taken in
Wary he cannot be indi6led of Treafony for the Indidment
Sir John Da- Cannot conclude contra legiantiam fuam debit amy for he never
i;;Vj's Con- was in the Protection of the King •, and therefore he Ihall
queft oi Ire f^^jjf^j. Death by Martial LaWy and fo it was ruled ini3 ^.
Vot'^o-!''^' 7. in Perkin War beck's Cafe, who being an Alien born in
Flanders y feigned himfelf to be one of the Sons of King £i-
ward the Fourth, and invaded the Realm, with intent to
take upon him the Dignity 5 who had his Judgment and
Tryal by Martial Law^ and not by the Common Law of
England.
VII. The Kingdom of Ireland \vsls 2, Dominion feparated
and divided from England at the firft, and came to the
Crown of England by Conqiiefl^ in the Time of Fienrj the
Second ; and the meer Irif}:^ were as AlienSy Enemies to
the Crown of England^ and were difabled to bring any Ac-
tion, and were out of the Proteftion of the Laws of tnis
Realm}
Chap. II. aiieilS Zt^dig, . 45J
Realm •, and fiv^e Scepts of the Irijh Nation were only ena-
bled to the Laws of England^ viz. Ojieil de Ultonia^ O
Molloghlin de Media^ O Connoghor de Coiinacia^ O Brian de
Thoimonio, and Mac Morough de Lagenia^ as appears by
the Records of the Dominion of Ireland^ and feveral Grants
have been made to the Irijh^ which proves them to be mere
Aliens. But afterwards, though the fame was a feparate
and divided Kingdom, yet whilft they were under the Sub-
iedion and Obedience of the Kings of England^ if High
^reafon had been committed by an Jrifioman^ he might be Co. y.fol. 2%.
arraigned, indidled, and tried for the fame within England, CahtnhC^it.
and by the Laws of England ; and fo it was refolved by all
the Judges o^ England m Orurkeh Cafe, 0,0, Eliz. and alfo in
Sir John Perrofs Cafe, that Ireland was out of England,
and yet that all Treafons committed there, were to be tried
in England, and that by virtue of the Statute of 38 H. 8.
cap. 23. Arthur Crohagen, an Irijhman, was arraigned, for Cro.Car. 333.
that he being the King's Subjedt, at Lisbon in Spain ufed
thefe Words, / zvill kill the King (inuendo Dominum Cara-
turn Regem Jngli^) if I may come unto him, becaufe he is a
Heretick -, that afterwards he came into England, and was
taken, and tried by a Jury of Middlefex, and was found
guilty •, and it was held High Treafon by the Courfe of the
Common Law, for his traiterous Intent, and Imagination of
his Heart is declared by thefe Words, and within the Sta-
tute of 25 £. 3, he confefTed he was a Dominican Fryer,
and Prieft in Spain.
Bra5fon fays, that an Alien born cannot be a Witnefs ; 1 4 ^^^'^j- in the
but that is to be underfliood of an Alien Infidel j for the j^uj^.J^y^Vor-
Bifhop of Rojfe, being an Alien born (a Scot) was 2idm\t- folk^, Co. h/lit.
ted to be a Witnefs, 2iX\difworn. i^pt.foUzjc^.
Yet an Infidel may bring an A(5lion againfl another Mer-
\ chant, or any other however *, and that witliout Con- * 1 1 H. 8.
troverfy. f°^- 4-
Vill. The Teftimony of a Renegadce is not to be re-
' ceived at this Day, by the Laws of any Chriftian Kingdom
; or Repuhlick •, he that hath once renounced his Faith can
never be believed, therefore he cannot be a Witnefs \ and
fo it was ruled where one Domingo de la Cardre, a Rene-
gadoe, who was fworn, and gave Evidence ; afterv/ards a
new Tryal being granted, his Teftimony was rejected, and ^'^[' ^''.* p\
he not fuifered to be fworn, it bemg at his Tryal proved, '^obks'L'rfus
F f 3 that Laiigfion.
\
\ 2Df Plaittecief* Bookui.
that he was a Spaniard^ and a Chriftian by Birth and Edu-
cation, and after became a Jew.
JX. If an Jlien be Refident, and commits an Offence, he
271 . Courtetis iliall have the Benefit of the King's general Pardon j but if
^3fe. lie is not in the Kingdom at the Time of the Pardon pro.
mulgated, then he lofes the Benefit of the fame 5 for he is
no otherwife a Subje6t5 but by his Rejidence here.
454
Hthart^fJ.
f
CHAP. V.
I. Of Poffef!l67i and its Original
II. 0/ Vacancies natural y ^ivkich
give a Ri^ht to Plarters.
III. Of Ci<-uil VacaticirSy honx} fur
the f stir, e riight be pofcU'ed.
IV. Of Per,'ors exptl'edy <nxhf.0^er
juf to deny fach to plant in places
^vacant.
v. Of Plantersy 'vshethcr the^ ha've
a firm Ri^ht, fo as to d./pofe by
Will, or only a VfufuSiuary Pof-
fejiov.
VI Of Planters^ nvanting Things
necejfa. , for the Support of human
Lifey generally confidcred accord-
ing to the La^as cf Nature.
VII. tf hercfore one Man may natu-
rally ha-ve more than another, and
<Tx:hat Conditions are annexed l$
fuch Fortunes y for thofe that art
if! NeceJJity.
\ll\. i^' hence it is, that there was
at the Beginning, and is pll a
tacit Condition of re-ofumlngtur
original ilights, in cafe cfextrimt
or natural NeceJJity for natural
Community.
IX. Of NeceJJity ccnfidered in a
Chrifiian Com.v:unity.
X. Of the Primiti've Communm^
confidered in reference to its Rt
firiBions and Limitations.
XI. Of thofe things that are diix-
cated to God, and holy Ufe, nvhe-
ther fuhjeSl to the Relief of m
NeceJJity.
I
Afham. I. T TAVING in the firfl Chapter of this Work dif-
Jol. 15. X X com fed of the Original of Property, deducing its
Inception to that which wc call PofTefTion or Meiim., and
how the fame may be altered by War, it may notfeemun-
neceflary to difcourfe cf the acquiring of Property in the
new Difcoveries of thofe vaftlmmenfities o^ America, which
being prepofR^fTed, fccni to deny us legally that Tide which
we pretend to.
PoiTefiion by Law is efteemed the higheft Title that Men
can pretend to what they enjoy, which is nothing t\k but
fojitio pedis ; as if the Ancients had no other Seal to confimi
their Tenures, but the Prints of their Feet : And good
Keafon,
I
Chap. V. f)f pinittCtiEf; ' 455
Reafon, feeing the Mind is not able to take up a Place fo
well as the Body ; for many Men's Wills may concur in
(wifhing and liking) the fame thing, but many Bodies can- ^
not concur to the poffeffing it : Befides the Mind cannot
(et an outward Mark on what it likes, that thereby others
might be warned to abftain from it, all which the Body
properly doth. Abraham and Lot going to plant, declared
no more than this, there was Room or Vacancy enough ;
and therefore, without further Examination or Scruple,
they knew they might turn to the right Hand or to the left,
to poffefs what they would to themfelves.
II. This Vacancy, which gives us a right to plant, is to
be confidered in two Refpe<5ls ; t. Nadiralt 2. Civil : The
firfl is in things which may be pofTefied, but a6tually are
not, neither in Property nor Ufe ; fuch a Vacancy which
is niiUius in bonis, might be occupied by Switzers^ who,
as C^efar feith, would fain have changed their rough Hills
for fome near Campania ; and Defarts or Places uninha-
bited may be polTefTed and appropriated to the firfl Planter,
and that without all Controverfy, but efpecially by thofe
who being expulfed from their own Seats or Eilate, feek
Entertainment abroad : The Anpbarians in 'Tacitus, cry Tadi. Annal.
out. As the Heaven to the Gods, fo is the Earth granted to ^l-
Mortals, and what is void is publick : Looking up to the
Sun and Stars, they did openly as it were inquire of them.
Whether they were pleafed in beholding any Ground empty, and
without Inhabitants, they Jloould rather caft forth the Sea^
and overwhelm the Spoilers of the Earth,
III. Civil Vacancy is where it is not abfolutely incorpo- Vhlncc pojejfa
rated, as among the roving Arabians and Moors in Barbary, eftpkne in ho-
and other Africans and Americans, who pollefs one Place to ^^^"^' nechoma
Day, and another to morrow -, thefe by their frequent Re-^/^^^ ' -^
turns Ihew, that they abandon not the Places they remove
from, as dereli£fa qu<e quis in bonis amplius numerare non
vult ', we cannot lay, that their natural or voluptuary In-
tereft in them is no v\^ay improved j for Grotius feems to be
of Opinion, * that if there be fome Deiert or barren Ground, ^DeJureBel-
the fame ought to be granted to Sirangers upon their Re- liacPadsUh,
queft, and, fays he, It is alfo rightly jeized on by them^ 2. cap.z.^.iy.
giving this Reafon, For that Lands ought not to he efleemed
occupied which are not cultivated \ but only as to the Empire,
'which remains intire to the firfl People^ they do no Offence
F f 4 ^ who
4SS fiDf IPIantCtS* Book III.
f Dron. Pru- wlio Inhabit, and manure a Part of the Land that lies ne-
^" i. But we muft prefs this Argument of Grotitis very ten-
derly, left by the fame Reafon others conclude, that thofe
Eftates which are not competently improved, are derelift
and occupiable by others, which would introduce perpetual
Confufions, and cafily perfuade every Man that he could
Reaefaaaefi hufband his Neighbour's Lands better than himfelf : How-
cof^ccjjio, qu^ gy^.,.^ ,-[^jc is a clear Cafe for all Planters, that thofe Wades,
^alt rius ^'^"^^ ^^ ^fperi monies^ which the Natives make no ufe of, nor
can receive any Damage by their being poflefTed by others,
may lawfully be impropriated by them.
IV. Again, if a Nation or People expelled their own
Country^ ,lhould defire to feek void Places, or atleaftfuch
BffU 3. Ccfjf. as might not abfolutely endamage a People into whofe Ter-
293 ritory they come, they m.ay juflly plant -, the Reafon is,
for that Dominion or Property m/ight be introduced with a
* Seri\ ad 7. Reception of fuch Ufe which profits * fuch diftreffed People,
Mn. Litt:ifa\ and hurts not thofe -, and therefore the Authors of Dominion
rogamm in- ^^^ fuppofed willing rather to have it fo *, but to give away^,
"'virjica'h%i ^^^^^ which we have but a bare Right to, and no Poireflion,
vullifojjit can neither be juft in the Giver, nor lawful in the Receiver.
vacen. We have an eminent Example of this amongft the 1^yLYh\
for the 'Tartars having over-run the North of Afia^ and
many Nations, fled from their own Countries for fear of
them, amongft other the Corafines^ a warlike People, being
thus unkennelled, they had their Recourfe to the Sullanoi
Babylon^ and petitioned him tobeftow feme Habitation upon
them i their Suit, according to the Rules of Policy, he
could neither fafely grant nor deny ; to admit them to be
Joint-tenants in the fime Country with the poffelTed ^urk
would turn to a prefent Inconvenience and a future Mifchief,
Maithetv Pa^ and to dcRy them, might perhaps edge their Difcontents
rU^foL 85 1 . jp^Q Defperatenefs •, therefore inlrcad of giving them Gold,
he fcnt them to the Mines, yet fo as they took it as a very
great Courtefy ; for he beftowed on them all the Lands
which the Chriftians held in Pakfiine^ liberally to giveaway
what was none of his, and what the others muft piirchalc
Mattheriv Pa before they could enjoy : Sad was the Donation ; tor by
ris,/oJ. 834, virtue cf that Conveyance they became Conquerors of 7^'-
^35' rujakn'iy and cf the v/hcle Strength of the Chriftians.
Y.
ft
Chap. III. ®f ipIaitteejS* 457
V. But admitting that Planters may appropriate a Plan-
tation for their Living, whether fuch may difpofe of the
fame by Will (we fuppofing the PofleiTor having no Heir)
for that he might feem to have but an ufufrucftuary Poflef-
fion, till a Defcent had been caft, which then perhaps may
turn the fame into a Right : f Without all Controverfy the t As it is con-
very immediate poffelTing and planting creates a right againft Jy^g "^^^ "
all, but he that hath Empire there, and that very right, the share of Sub-
Party in his Life-time might have a6lually transferred over fiftence,whick
to another. Now though the Devife in the Will operates ^^^ ^^otq
not till after his Death, yet the Gift is made during his fhouldTou'
Life ; according as the French have it, Se defpouilkr avant be fixed, fo it
m s^en aller coiicher^ that is, Man firft puts off his Cloaths, '^ neceffary,
and then goes to Bed. fen'^hlch""-
Others gave to
this at firft fiiould ftand fixed, efpecially if there wa? no. Obligation or Declaration at the
firft to the contrary. Vide Selden de 'Jure Nat. &" Gen. ad men. Heb. id. ohligat. quod efi
ex officio quod legis eji : But the Sandion of a Law fuppofes the Nullity of a State of Na*
ture, not of a Right of Nature.
VI. Again, , Perfons having arrived in thofe Territories,
and planted, but before they have reapt the Fruits of their
Labour, Neceffity is found within their Huts, and a Sup-
ply of Things for the Support of human Life is wanting,
whether fuch may feek the Means of Subfiilence by the
Laws of Nature, and in cafe of Refufal (after Requeft) force
them from their Neighbour Planter ? Surely that which is
neceffary for my natural Subfiilence, and not neceiTary to
another, belongs juftly to me, unlefs 1 have merited to lofe
the Life which I feek to preferve. There were a Defecfb in
God's creating our Natures, fuch as they are, if he did not
provide Means to uphold their Beings, according to the na-
tural Faculties v/hich he hath given them. A good Mother pia mater
divides her Bread among her Children, fo as a Morfel may panem inter
come to each •, let us therefore judge this Cafe by thofe ^^j^^/^^ ^^P^- ^
Rules of Juftice, by which we judge other Cafes : If a Fa- ^Iniltfwgu-
ther in his W^ill pafs by a Child, or names him, but upon lis.
falfe Caufes leaves him nothing, he is not with {landing by
the Equity of the Civil haw admitted to a Child's Part,
2i^l€gitimate^ and may form his Kdiiow contra Tejtamentum in-
officiofum. Men are all akin, and we derive one from an-
other, and to let others fettle in our Places, who may juflly
expert as much due to them, for their natural SubMence,
as
'
4S8 fiDf piautCtS. Book III.
as was to thofe who before went out of the World, to make
place for them, yea though they affign them nothing at
their Departure. ^
Man were of all living Creatures mod miferable, if j^^
might not during this Life have that Meafure, which God
would not have an Ox defrauded of; thus hath every
Dunghil-Fly a Right to live, and to remain infedile, which
befides Exiftence hath Senfe, and may notjuftly bcdepriv-
ed of that its chiefefl Felicity, unlefs it be importunate to a-
nobler Creature.
VII. 'Tis very true, that no Man can pretend to fharc
in the Sweat of another Man's Brows, or that the Pains
and wafting of another Man's Life, Ihould be for the Main-
tenance of any but his own •, nay, though it be granted,
that thofe Neighbour-planters, who being fettled before us,
and having acquired either by Induftry, or lawful Donation,
the Fruits of other Men's Labours, and confequently muft
Xenophon in cnjoy more Plenty than a new Comer or Planter, yet all
the Anlvver to ^.j^^^ ^.j^^y poflefs is not properly theirs •, for if another by i
\jlijusemendi extreme NecelTity be periiliing, and they have above what
mhis non con- they Can confume in a natural way, then they have no ful- \
ceditnr fi^e in jer a Property in that Plenty than Ste war^is have, and for
^ti'nCra- this Regard they are fo called in Scripture : The Earth fiill
canio folo ubi ^^ ^^ LonVs^ and the Fidnefs of it is his^ for he made it of
qu^e opus f urn- his OWH Matter^ and for the Fafhion of it iifed not our Aid\
mus, non per y^^^ jf jj jjj^ ^j^^ which ftill produces^ and his Clouds which
'vexJfJitateJLx'^^'^P F<r7/;/^y} ; We can only pretend the Contribution of a
fed. Cyri. httle Pains for that which is our natural Share •, fo that in
plain Reafon we may not exped: to be otherwife qualified
than Stewards, for all that which is not probably neceflary
for our own Subfiftence, or for theirs, who fubfift only by
us : Wherefore if Lazarus ready to perifh (not by Fault,
but by Misfortune) had taken Dives his Crumbs, contrary
Lrftus, lib. 2. to his Will ; yet he had finned no more than he who takes
cap. 12. dub. fomething which the Lord or Mafter hath given him, dio*
12. num. 70. ^j^^ Steward contradid it : But if it fo happen, that both die
Planters are in pari neceffitatc^ then melior eft conditio p^i^
dentis ; or, as St. Paul's Words are, when he excited the
2 Cor. 8. 13. Churches Charity and Alms, for the Relief of the diftreffed
Members of Chrift, Not (quoth he) that other Men he eafedy
and you burdened,
VIII.
Chap. V. ©f Planter jj; 459
VIII. The Will of thofe who firft confented mutually to
divide the Earth into particular PoiTefTions, was certainly
fuch as receded as litde as might be, from natural Equity -,
for written Laws are, as near as polTible, to be interpreted
by that ; and therefore in Cafes of fuch Extremities we are Grotius de
not without Examples, of taking the Goods of one to fup- J^reBeiUac
ply the Neceffides of many : And therefore at Sea, if Pro- £^'"^' ^^|- 2-
vifions begin to fail in a Ship, every one may be forced to g^g, ' * ''*
bring out openly, what he laid in for his Paifage in parti-
cular •, fo a Ship at Sea, having in Strefs of Weather, fpent
her Sails, Cordage, and Anchors, meeting other VefTels at Leges humana:
Sea, may take a Supply of fuch as fhall be wandng ; but obliga?it uti
yet governed according to St. FauV^ Words, So that fuch ff^^^^^^*^^^^^^
taking ft rait ens not the other Ship, So when the Sea breaks humana: imbe-
in upon a Country, we may dig in the next Man's Grounds dllitatis,
to make a Bank, without ftaying for the Ov/ner's Permif-
fion, yea, tear dov/n any Man's Hedge, or Fence, when
the common Failage is ftopped : For in fuch cafes of Ne-
ceflity human Laws (as is mentioned afore) do not fo much
permit as expound their natural Equity, and that which
Men give to thofe who are fo innocently diflreffed, who
borrow Life only from the Shadows of Death ; Et pi5la
[e tempeftaie tiientur^ is not fo properly a Charity to them as
a Duty •, and if he be a Chriilian that gives, perhaps he
doth more Charity to himfelf than to the Receiver.
IX. The Reafonof this Chriftian Charity or Communion
is as far above the natural, as Chrifl himfelf was above Na-
ture •, this requires an equal Beadng of all Pulfes, that as
Fellow. Members we have a homogeneal Senfe and Palpita-
tion •, we are to divide a Crufe of Oil, and a few Handfuls
of Meal, with one of Chriil's Flock, with an abandoned mqulcquam
Creature ; and what can be in more Extremity than a ^oox /undo Jufpirei
Planter in a ftrange Place, deftitute for the prefent Sup- f^J^'""^ '«
ports of human Life ?
And furely the Violation of this Jus Chart tatis is no lefs
than Theft in thofe, who having extended Fortunes, never
defalcate a Gibeoniteh Cruil perhaps for a wandering An-
gel ♦, thefe ileal even the Ihipwrack'd Man's Pidure from
him, which as his whole Inheritance he carried at his Back,
to move Compaffion, and by the infadable Sea of their
Avarice and Luxury, they wreck him over at Land.
X.
^
460 ©f Planters; . Book III.
* IntgnJltur X. But this free primitive Communion had, and hath
inquit focordia jj-g gounds, and its quantum in Contributions, as well as the
XJw^'/W-"^^"^^^' otherwife it might be fraudulent, and thieving:
lus exfe met us For they who poflefs but a little, would contribute it all '
aut/pesy ^fe- on purpofe to fhare equally with thofe who polTefs very
TJ^fMia'' much, which would introduce a vifible Decay and Ruin in
ITpe^aLTt, all ; as Tiberius rightly obferved * on M. Hor talus his pe-
fibiigna^iy^ titioning an Alms for Jugujius C^fars Sake, Idlenefs would
iwhis graces, picrcafe^ and Indujiry languijh^ if Men fljould entertain no
^^^^' Hope nor Fear to themfelves^ hut fecurely expe5i other Men*i
Re lief y idle to themfehes^ and hurdenforne to us ?
Wherefore in the midft of that primitive Communion, I'j
we find that the Apoftles went domatim^ from Houfe to l]
Houfe breaking of Bread, therefore they even then retained
by their Houfes in Property ; which Property is fuppofed
by the eighth Commandment, as well as it is by Chriftian
Charity : For no Man can ileal, but by invading the Right
of another •, and as for Charity, it is necelTary he havefome- g
thing of his own, to be able to fulfil its Commands, and to
make a Dole at his Door ; and it is very convenient that
he give it rather with his own Hand, than by fome publick .
Cclle6l:ors, For Charity is heated moft with the Senfe of in j
'Mat. 7.11. own A5lion, Moreover under the Law, Jews were com-
manded to love one another as themfelves ; yet this Command
took not away Property then, therefore it takes it not away '
now, notwithilandino; we owe the Ufe or Ufufrud of our ,
Properties to the diftrefied, though ourfclves be at the fame •
time in Diftrefs , jufl as we are commanded, by die Peril of
our own Lives, to endeavour to fecure our Neighbours
Life, w^hich is yet a Chanty more tranfcendent than the
other, by how much Life is above a Livelihood. And
though the various Laws of Countries have variouQy pro-
vided Punifliment for thofe, who outof meer NeccfTity take
fomething out of another's Plenty •, yet that proves not the
Act to be Sin, or repugnant to Equity or Confcience, but
rather repugnant to the Convenience of that Kingdom or
Republick where the Ad is committed ; and the true Rea-
fon of the fame is, left thereby a Gap might be laid open to
Libertinifm •, befides, Reaibn of State, we know, confidcrs
not Virtue fo much as pubJick Quiet and Convcniency, or
that Riirjit which is ad aherum.
XI.
\l
CHAP.iir. f)f piiHttersJv 461
XI. We will now confider thofe things which are God's,
which yet are not his in fuch a ftrid rigorous Senfe, but
that they lie open to the Exceptions of our juft NecefTities i
hence that which is devoted as a Sacrifice to him, in cafe
of NecelTity, may be made our Dinner, witncfs the A6lion
of David : Wherefore the Confequence of our Saviour's
Anfwer was very ftrong, when he defended his pulling the
Ears of Corn in another's Field : That if it was lawful for
David in his NecefTity to eat that Bread, which was pro-
vided for the Tabic of God, then how much more was it
lawful for him and his Apoitles in their NecefTities to take
a refrefhing out of that which belonged to Man ? By the Decretals of
Canon Law, if no other means can be found, the Veffels of ?^^^i^"\/.^^'
the Altar may be fold to redeem thofe Souls who are enthral- nenfu.^Cafu
led in Mifery and Captivity \ and is there not good Reafon Synodm Aure-
for it, feeing they ferve but for the Souls of Men, and Hacenfis,
therefore the Souls of Men are more precious than they ? ^^% ^onctlt-
Yea the Sacrifice itlelr, to what End is it, but to obtain a
State of Piety for us ?
Upon what hath been faid, it may not feem an Injury,
if a Planter (wanting thofe things for the Support of human
Life) requefting a reafonable Proportion of his Neighbour
(having it to fpare) with an Intention to repay, if denied, Grotimde
by force to take the fame from him \ for that Reafon which ^"''f ^^.fj^ ^^
creates a Punifhment in a fettled Commonwealth, for ^^ cat.L^'ltQ.
like Adions, does in fuch Places fail.
CHAP,
( 462 )
CHAP. VI.
I. Of Conjtderations touching their
fvarious and fe^veral Forms ofGo-
njemment donxn till their total
Extirpation.
II. Gf thtir fir ft coming into Eng-
lanc^, andnvhen.
III. Of thtir State and Condition
after their inhabiting here.
IV. Of their Pri'vi leges and other
Immunities in reference to their
Monies and Charters.
V. Of their Chefts and StarSy and
the Manner of Proceedings for the
reco'vering of their Debts.
VI. Of their Charters and Irnnm-
nitiesy and of the Confirmation of
the fame.
VII. Of the Confequences and Incon-
fveniences that fell and ivere occa-
fioned by reafon of their Courts ^ as
to the Ecclefiafiicat Cognizance .
VI n. Of their Ponjuer in ereSling
of Synagogues y and of the Founda-
tion of the Houfe of Con'verts, nonv
called the Rolls.
IX. Of their Charter obtained of
the Pricfthood of all the J eivs of
England.
X. Of Places totally exempted k
England /a-(?/« their Society.
XI. Of the Endonxjment of thtir
TPi'ves, according to the Laivsof
the Jews, and of their Power of
Excomfnunication of each other.
XII. Of the real State and Condi-
. tion that they remained in, ntt-
nvithfianding all their 'various and
fe'veral Immunities.
XIII. Firfiy in reference to their
Perfons, being obliged to <wear
Badges or Tables on their Breajis,
as Notes cf DiftinSiion, and ha-
<ving entered the Realm, could not
depart ^without Licence.
XIV. Secondly, as to their EJiate,
the fame being folely at the Will \
cf the King ; for at their Death
the fame efcheated ; they could '
not fue ivithout Leave or Li- i
cence, the King might refpite or \
rtleafe the fame ^ and ha^ve nothing
hut 'vjhat iv as folely at the Devo- '
tion of the State ; continued fo till
their total Banijhment out of tht
Realm.
SINCE theRemainder of that mighty Nation, which
1- ^
of old were eledled a People peculiar, are now by
him that firft chofe them, difperfcd over the Face of the
Earth, and are become the moft poHtick of Traders now
extant, having by their Induftry cemented themfelves into
the principal Revenues and Traffick of the Univerfe, but
more elpecially among thofe Nations who remain in Dark- I
nefs, and in the Shadows of Death. It might not feem im-
proper to examine how their Condition flood of old in this
Nation, what Advantages and Difadvantages they brought
to this Realm, and how the Laws of the fame ftand in*re-
fcrence to the People at this Day.
At
Chap. VI. Of tlje JiCtPiJ* 463
At the jfirft the Fathers of their feveral Families, and
the Flrft-born after them, exercifed all kind of Government
both Ecclefiaftical and Civil, being both Kings and Priefts
jn their own Houfes, they had Power over their own Fa-
milies, to blefs, curfe, call our, difinherit, and punifh
with Death, as is apparent by Noah towards Cham, Abra^
ham towards Hagar and Ifmaely Jacob towards Simeon and
Levi^ &c. In Mofesh Days then did this Prerogative of
Primogeniture ceafe ; and as Aaron and his Pofterity were
invefted with the Right and Tide of Priefts, fo Mofes and
Jojhua governed the People in a kind of Monarchical Au-
thority.
After Jojhua fucceeded Judges^ their Office was of abfb-
lute and independent Authority, like unto Kings when once
they were ele(5led ; but there were long Vacancies and
Chafms (commonly) between the CefTation of the one, and
the Ele6lion of the other ; yea, for the moft part they M-
dom chofe a Judge but in the Time of great Troubles and
eminent Dangers, which being over-paft, he retired to a
private Life, much fymbolizing with the Roman Didlators,
and condnued with them according to the Computation of
fome 329 Years. In the Vacancies or Diftances of Time Jug.deCi'vit,
between Judge and Judge, the greater and weightier Mat- ^^^* ^^^- ^^•
ters were determined by that great Court of the Seventy ^^^' ^^'
called the Sajihedrim^ in which refpedt the Form of Govern-
ment may be thought Ariftocratical ; Kings fucceeded the
Judges, and they continued from Saul to the Captivity , that
is, about 500 Years.
From the Captivity unto the coming of the Mejfiah^ which VJher.
is thought to have been c^i6 Years, the State of the Jews
became very confufed, fometimes they were ruled by Vice-
gerents, who had not Supreme Authority in themfelves,
but as it pleafed the Perjian Monarchs to aftign them ; they
were called Heads of the Captivity^ of which was Zorobabel
and his Succeflbrs down to Hofodia^ which were thought to
have been of the Pofterity of David ; fo likewife the other
iucceeding ten chief Governors under Alexander the Great ^
in the laft of thofe ten. Government departed from the
Houfe of Davids and was tranftated to the Maccabees^ who
defcended from the Tribe of hevi^ and from them the So-
vereign Authority continued to Herod the Askalonite his
Reign, at which Time our Saviour Chrift was born accord-
ing
464
Gen. 49. 10.
* A y^ou Is a
Name of Pro-
feffion, not of
Country or
Nation. Jo-
Jefh Scaliger
ex quo Cafau-
borty adn}. Ba-
ron pag. 1 9 .
tff 39.
Fol. 568,569.
HolhiJJped.Vol.
3 P^g' 15"-
Condi. 623.
Spelman Con-
ci
-•/
623.
®f tSe 31etog^ Book III!
ing to JacoFs Prophecy : ne Scepter Jhall not depart fro$
Judah^ nor a Law-giver from between his Feet^ until Shikh
(that is, the Alejfiah) come ; which Scepter was <yiven
to Judah^ that is, to the twelve Tribes from the Time of
McfeSy and that it was taken fully from them in Herod\
Time, and given to him who was a * Profclyte, and no
ways defcended from that holy Stock, for fuch was Hcroi,
Their Condition fince the Extirpation of their Common-
wealth, and their difperfing over the Face of the whole
Earth, after the facking of their Metropolis, is fully related
by Jofephus^ Eufebius^ and others, and what Condition, and
how ufed in mofb Nations they have been fince then, is
fully iiluftrated by Heylin in his Microcofm.
II. When they came firil into this Realm is not certainly
related by any of the Hiflorians in their Writings ofBriliJh
or Saxon King's Reigns ; however, this certainly appears,
that William the Conqueror tranflated the Jews in Roan^
from thence to London, oh numeratum pretitim, for a Sum
of Money given by them to him, who accordingly appoint-
ed them a Place to inhabit and trade in, which being af-
figned them, they were under the Prote(5lion and Patronage
of the King, and as his meer VafTals, their Perfons and
Goods being his alone, and that they could difpofe of nei-
ther of them without his Licence •, and this appears by that
ancient Law related by Sir Henry Spelman,
De Judceis in Regno conflitutis.
S(£ientium ett quoque, qttou omntss Jud^ei uliicunque (it
Ecgno ftmt, {\x\s ttitda $ tiefenConc 2Domfni IRcgi^
fitnt-, nee quilikt eo^umalicuitJitiitirepotettrubtierefinc
Ee0:i0 liccntta. Judiei, $ omnia Cua '^m^ funt. jSQuoli
fi qulfquam Detinuecit i\^ pecuntam ftiam, pcrquirat Kcr
tanquam fuum p^opiiinn, (or tietinucrit eosf, tel pccuniam
cojum, perquirat Hcj a tiult, tanquam fuum pjopiiuni)
as Sir Hairy Spelman renders it.
III. Thefe People, after they had planted themfelves in
this IQe, and being thus protected, drovd on the Trade
and Traffick of the fame with a mighty Hand, to fuch a
Height, that by the End of King Ritfus's Time, they be-
came powerful, rich and numerous, and t6 that Degree lO
zealous
Chap. VI. ®f tit ZltW^ 455
zealous for their Religion, that they not only held open DIA
putes, but endeavoured to bring over by Monies the poor
and needy to be of their Opinion. So high and infolent
were they groWn up in a {hort time, which continued till jcb. Brecon
King Henry the Second's Reign, at which time their Con- ^0/. 1048.
dition became a Grievance to the Nation, by reafon of their
OpprefTions, Murders and Infolencies, which that K.ing Cerva/us Do-
taking into Confideration, banifhed the wealthiefl of them, roheme^/s in
and the reft he fined at 5000 Marks. The moft pernicious ^^^Cbronica^
A61 of Murder which they were accufed of, v/as, that ge- ^ * ^°^^'
nerally on a Good Friday they would, if poffible, get a Child
of Chriftian Parents, and crucify him in derifion of his p^x Vol, i.
Religion. foL 305.
IV. King Richard^ after his Return from the Holy Land,
taking into Confideration the NeceiTities and Straits that that
expenfive Expedition had brought him under, and being de-
firous to reduce the Monies and Eftates of the Jews into
fuch a Condition, as if Neceffity fliould compel him to feize on
the whole ; but before the fame could be done, it was pro-
pounded, that the King declaring his being fenfible of the Matthe^v Pd-
State and Condition of the Jews^ a Means might be found ^^^yfi^- 641-
out for the feding and peaceable driving of Commerce be- ^^'-^ ^^' ^^'
tween the Chriftians and them •, whereupon Judges were «az^. 6. cJ/f.
appointed to hold Courts touching the Government of the 4- hjiit.foL
Jews, and their Commerce was appointed out in thefe Ji4-
^TT \ ^^ Job. Bromp-
Words: ion,Collea.
All the Debts, Pawns, Mortgages, Lands, Houfes, Rents 1258.
GndPoJfeffions Jhall he regiftered, the Jew, who Jhall conceal ^''^^^"^A^^
any of thefe, fhall forfeit to the Ktjjg his Body, and the Con- ^"^-Z-P-'^SS^
cealment, and likewife all his Pof[eJfions and Chattels -, neither
fhall it he lawful to the Jew ever to recover the Concealment ;
alfofix or f even Places fhall he provided, in which they fhall
make all their Contrails, and there fljall he appointed two
Lawyers that are Chriftians, and two Lawyers who arc
Jews, and two legal Regifiers, and before them and the Clerks
of William of the Church of S. Maries, and William of
Chimilii ii^all tljcir Contract^ lie uiaDc, anD Cljauterjs iljall
iiematie of tklr Contcaftjs bv toap of 3!J^tienture, anti one
^art of tht Sjntjcnturc tljall rtmain toit^ tl)c 31^^ fealco
toitlj tj!0 ^ea!, to loljom tijc S^oncp 10 fsnt, tt)e ctfjct
pact tljall remain in tlje Comuiou C^cQ^, to^crein i^all
lie tljjce Hocfe^ anti l&ep^, VoljereoE tSe tioo CtjnaianjJ
G g t^M
466 ®f tfie 3[ett)!S; Book III.
fijall feccp one Tkt^, anti tje mo 31e\33?J anofber, tl)e <nccfe
of William of fet. Maries (l[:ijurclj autl William of Chimillj
fijall feeep tljc t^iutJ •, anti moieotiet: ttjece fijall lie tbm
fe>ealj3 to it, auD tIjoCe tofto keep ttje »>eal0 n;all put tjc
&£al0 tIjcretD- ajo^eotiec tlje dkvk^ of tlje fait) William,
and William fljall feeep a ISloll of tlje tEranfccipt^ of alltje
€ljartec0 ; ant) a0 tlje C!)acter0 l^all lie altereti, fo letttie
Holt be lilieVoire •, fo^ etiecp QTljactec tl)ere lljaU tie 3^.
paiti, one S5?oiet^ tljereof li|) tI)e3|^tD, annanotljec^oietp
h? Ijfm to NDljom tlje Sf oi'etp i?? Cent, toljereof tlje ttoJ
<l<llriters f^all Ijatie 2 ^. ann tlje I^eepec of tlje EoU tlje 3^.
anti from Ijcntefortlj no Contract (ball lie matie toitj, noj an?
^apment made to ilje JeVo^, noi an^ Alteration mane of
tlje Cl)arter0 hut before tlje faiti ^erfonj2( oj cfie greater
^art of t^Uy if all of tljem cannot hz p^efent, anti tje
afojefaiti Cljriltian^ (Jail tatie one l^oll of tje a)£lit0anu
IReccipt^ of tlje ^apment toljiclj from Ijencefojtft are to
lie mane to tje 91eto0, anii t^e ttoo 3^?^ one, anti t^i
lieeper of tlje EoU one* ^ojeoter, t^zv^ 3Ieto (ftall
flocar upon li^ Eoll, t^at all \)\ss 2Delits anti ^Batnnsf, ann
1Rent«3, anti all lji0 (Boons anti goffeffiong^, !je fljall taufc
to lie enrolled, and tljat Ije (Jail conceal notljino:, a0 i^
aforcfaid j and if Ije (tjall fenolo tljat an? one iijall conceal
mp tl)ing:, Ije iljall fecretl^ repeal it to tl)e 2^ilim fent
unto tl)em, and tljat tljep fijall detect and fljeto unto t|eni
all jfaiafier^ and jfo^ger^ of Cfiarter^, and Clippersi of
^onie0, toljen and tol)ere tljep il^all knoto tjem, and likc»
toife all falfc Cliarterssf.
See Purchases V. This Chefl was called Jrca Chirographica, or Chirogra-
/ 2^""^^o^* T^^^^'^ Jii^^orumy and the Notaries and Regifters of them
^.7. ' filled Chirograpbi Chrijliani and Jud^ei Arcce Chirogra-
fhica London^ Oxon^ or other fuch City where fuch Chelb
the t^^ ^^^^^ ^^^"^^^y ^^^^P^- ^^^ ^^^^^ ^^e^s, Obligations and Re-
Chamber was Icafcs were ufually called &tar0 and Starra^ Starruniy Star
the old Re- in our Latin Records, from the Hebrew Word (as Mr.
^^'^^^pr n-^7 .S^/if;/ obferves Sbetar contracted by the Omifiion of kc)
^WcftnlrfteT ^^^^^^^ fignifiieth a Deed or Contrail. Thefe Stars were fof
remained with the moft Part Writ in the Hebrew Tongue alone, or elfein
the Stan of Hebrew on the one Side or Top of the Parchment, and in
^^''V^'^^r^"'^ Lrt//« on the other Side or Bottom of the Deed after the
not io called, jj ■,
as it is men- tieorew,
tioned, Co. 4. Inft. 66. Some of them arc now e;«ant in the Treafury of the Exche-
quer in King jQhn% Reign.
I
1
I Chap. Yt SDf tSe %tW. 467
If any Chriftian became indebted to any Jew by fuch
rar or Writing put up and referved in his Cheft, and
( paid not his Money at the Day appointed, together with
I all the Intereft where any Intereft was referved, then he fued
,1, forth Letters by way of Procefs againfl him both for the
Debt and Intereft under the Notary's or Regifter's Hand,
to appear before the Juftices efpecially appointed for the
Government and Cuftody of the Jews^ to recover the
fame ; but yet fuch Jew could not obtain fuch Licence till VUe Fine
he had paid a Fine to the King for the obtaining of fuch ^^^'^ 6- 7^*
Letters, unum Befantum^ viz. Befantum for every Pound, and likevvlfe
and fuch Stars were in- the Nature of Judgments, upon in H. 3. Q
which Extents were fued fortli, and tht Lands of the Debt- Ed. i.
ors were feizable, notwithftanding in whofe Hands foever
they came, after the Star was entred into * : And if it hap- * Fines 9.
pened, that any Perfons denied their Deeds, or any Con- 7°^- ^emb. 5*
troverfy did arife upon which there was any Tryal^ the fame
was by a Jury half of Chriftians, and the other of fix legal
Jews.
Such Stars or Cheft- Judgments wei^ afTignable to Chri-
ftians, together with the Extents upon them, and the
Affignee might vouch over the AlTignor to Warranty in fuch Pat. pars t,
cafe. So likewife to the King they might afTign over Debts ^«' 3- i^^"' h
to pay their Taxes. ^' **
VI. As this Politick Prince had provided this Meansf for
the difcovering of their Eftates, fo did he from time to time
award Commiffions to Juftices for the Tryal of Caufes and
Controverfies that arofe between Chriftian and Jew^ and
granted them divers Liberties and Privileges, which after-
wards were confirmed by thefc two enfuing Charters of
King John.
Johannes Dei Gratia, &c. fecfatl>? nCI<2? COnwCRffe ^m-- charLz.Joh.
niliU0 3|ut!0efS Anglias^ NormanijE, Kbere % llonoiifiCC n. 4Q. Charttf,
habere reatjerttiam in terra nodra i omnia ilia u noftri0 , >j^^^«'»
I omnia ilia qu^ matio rationaliiliter tencnt \xk tcrri-s $ ^''^"^^
lm\% I liatiii0 ahatijsCui^: ^ ciuoti Ijakant omne0 liber*
tategf % confuetutiine^ fua0 Ccut ea<5 Ijabuerunt tempore
pretiitti EeQ:i0 H. ^ti patri^ nodri, melius $ quieriujs
I Ijono^abiliu^, (Bt fi querela orta fucrit inter C^riftianunt
$ Juda^um, (lie qui alium appellatecit aD querelam fuant
titrationentianb Ijabeat "Celtei?, fcilicet legitimum Ctirifti--
G g 2 anuni
4^S i2Df tlje 3leto|S* Book III.
anum $ Juda^um. (£t ft Jud^us tic quctcla fua I5;ek
Ijiibuent, iD^e^c fuum trit ti teUi's, (£t a CijriOianujj
l)almccit i]ucr£lam atiVicffu^ Judaeum fit jutiicata per pm^
Judc-ci. (£c cum Judxus otiiecit, non tietincatuc cojpuu
fumn fupcr teiTain, teD Ijabeant ^omine^ pecuniam fuam
f tictsita fua, ira quoD milji non tiiCtutbetec, fi (jalment
Ijccrcticnt qui pjo ipfo reCpontieat $ rectum faciat lie ncbitis
fuigf I tie to^!55:aito Uio, Ci;t liceat Judaeis omnia quee cis
appojtata fuerint fine occafione accipere at emere, e;ccep:
t\0 i\U0 quce tic €cclcSa funt $ panno Tangutne lento, et
fi Judsfus all aliquo appellatu^ tuerit fine tette, tie illo ap^
pcUatu cut Quietus folo feacramcnto fuo fuper libcum
luum, $ tie appellatu lUarum rcrum quee ati Copnam mU
iram pertinent, Gmiliter quietus erit folo Sacramento fuo
fuper Eotulum fuum. €t fi inter Cljriftianum $ Judsum
fuecit tiilfentio tie accommotiatione alicuju^ pecunice, Judaeus
pjoliatum Catallam fuum, $ <£^riltianu0 lucrum* €t
liceat Judaeo quiere tcntiere tatiium, podquam certum
ccit, cum illuti unum annum $ unum tiicm tcnuiCCc. ^t
Juda^i non mtralui^ implacitum, nia co^am iE^otii^, m
tmm iWi^ qui curiae noHra^ cudotJierint, in quorum
5i5alllti0 Juda.^i manferint. ^t ulu'cunque boluerint, cum
omniliu? cataUi0 eo^um ficut rejs noltree piiopciee, $ nulli
liceat eajs retinere, nequc Ijoc ei^ p^oljibere. (Bt pcfieci-
pimu0 quoti ipft quieti fint per totam Angliam & Norma-
niam tjc omnilui^ confuctutimilm^ | €Ijeolonij0 i moDia--
tfone tint Gcutnoltrum p:op;iium catallum. <£t \m\\U'
mu0 liotu0 ^ pra^cipimu0 quoti to^ cufrotJiaticJ, $ tiefcnna'-
ti0y $ manu=teneati0, $ p^oljibemus ne quijj contra cliar-
tarn idam tie l)i0 fup^atiirti<s eo0 in placitam ponat fuprc
t'ouijjfacfuram noilram ficut Cljarta Een;i0 H. f atcijJ no»
llri rationaliilitcr tellatuc. '(lelle T. Humf. filio Petri
com. Eilcx, Wiliielmo tic il^erefcal. Com. tie Pemb. Henr.
de Bohun Coni- tie Hereford. Robert de Turnham, Wilii-
elmo Brywcr, ^c. 2Dar. per manum S. Well, ^rcljitiiac. apiiD
Markberg, tiec mo tiie Aprilis 3nno B.etjni nollri fecimtio.
Chnrf. 2. Jg- TOhann^.s Dei Gratia, Szc, »)Ciati0 nO0 COnceffiffC, f
^^^ »s3' J prcfcp.ti carta noftra confirmalfe Judasis noitrij:( in
yt/Zn!m de ^^^S^^^' «t ercclfujJ qui inter eo!3 rmerferint, ercepti^
Libert, fu'u. Ijii0 qni ati Coronam $ 91uftiuam noftram pertinent, $ De
i^one Ijominisi % maljemio, $ tie alfaltu preemetiitato, $ tie
frattura Domu,^, % tsc raptu, %^ tic S^atrociuio, % tie combur--
tione,
I
w
Chap. VI. ©ftljeSetJOg. 469
tione, $tie fQEIjcfaun'^, inter eo0 uetiucantur ftcimtiam He^
g;ein Cuam, ^ ementjentur, $ 3Iu(titmm fuaiu inter rci^jros?
faciant. concetiimus etiam ei0, iluoti R qui^ eojmn aliuni
appellatierit tie querela qti^^ aD co^ pertineat, iposJ nemtneui
conipellemus^ ad tediinoniunt cuiquam eormn contra aUuni
erbtbentium, fed (i appellator rationalnlem $ idonciun
tedem ^aliere potent* eunt Tecum adducat. fe>i quod t«era
opu0 Ccelaratum $ apertum inter eosf emerCerit quod ad Co-
jonam noftrain hd ad 31u(litiani pertineat •, ficut de prs^
diffiB ^aiacitigj Coron^e licet nullum eonmt nofccr appellator
fuerit , il^o<3 ipfam querelam fatiemu0 per ILeple^ Juda^os
no(lro0 Anghae inquiri Cicut Cljarta Ecijis? H. ^atuigf no^
ftti rationitiiliter teSatur. Cede G. ttUo Petri com> Effex,
Willielmo S^arefc^allo com* de Pembr. Hen. de Bohiin '
com. de Hereford, Petro de Pratcll. Roberto de Turnham,
Willie! mo de Waren, Hugo de Ncvil, Roberto de Veteri
Ponte. SDat. per manum S. Well, ^rcljidiac. apud Mer-
leberg decimo dte Aprilis ^nuo Reg;ni nottct fecundo.
VII. This Court being thus ere<5led for the Government CoL 4. /////.
of the Jews^ under Colour of the fame, there were many/^^- 254*
Evafions found out to avoid the Punifliments which they
juftly acquired for their feveral Delinquencies ; and there-
fore when any of thefe Jews were convidbed before any of
the Ecclefiaftical Judges for Offences againft an Ecclefiaftical
Perfon, or for Ecclefiaftical things, or for Sacrilege, or for
laying of violent Hands upon a Clerk, or for Adultery
with a Chriftian Woman, the Conufance of the Caufe was
alv/ays avoided by the King's Prohibition, becaufe fas was
alledgedj they had their pro]ptv delegated Judges who ihould
and ought to have Conufance of fuch things *, fo that if a Matthe^w Pa-
Jew happened to be convened before the Judges alligned ^^^ Mtamen-
for fuch things, upon denial of the fame by the Perfon ^0/° ' ^ ^'
alone, the fimple AfTertion of another Jew and of one Chri-
ftian without the adminiftring of any Oath, they might have
purged themfelves, the Proof of the Profecutor being utterly
rejeded.
VIII. By the Canon Law no Jew could build or eredl a Decret. Gra-
Synagogue ; for if he did, the fame was feizable into ^^^'^^/- j'r ^'7
Crown : The like was fo done in the Year 1231. when they <fom.^. p.yz6,
had ere(5led and new-built a curious Structure for a Syna- * cv- , <,
gogue, the fame was taken into the King's Hand *, and (^{^IJ^^ ^^'^ ^
G g 3 ' dedicated/^/. 182.
470 ©f tijc 3Ietog> Book III,
dedicated to the Blejfed Virgin^ and afterwards granted to
the -Brethren of St. Anthony of Vienna^ and called St. ^«,
*DecretGra' thonie*s Hofpital j but yet an old * Synagogue they might
Matthenv Pa- King Henry the Third finding that many of the Jews
^^J y^^' ^''«^^' were converted to the Chriflian Faith, but yet were not*
^^j^l^^^^^^jj^g perfecuted by their Brethren, ereded a con-
venient Houfe and Church, with all necelTary Accommo-
dations, and called it by the Name of the Eoufe of Con-
vertSy in which Place, if any would live a retired Life, they
had all Accommodations granted them for their Lives;
which Place continued a Houfe of Alms and Receptacle for
the converted Jews conflantly down till iS Ed. ^. and then
there proved a Failure of fuch Converts, and the Place be-
came empty and ruinous ; whereupon that Prince in the
eighteenth Year of his Reign granted the fame Houfe to
other poor People who had nothing to live on, with the Be-
nefit and Accommodation of the Gardens and other things,
and an Alms of i ^. a Day out of the Exchequer to each poor
Perfon : Which Place one William de Bunftal being made
Guardian of, and likewife at that time Mafter of the Rolls,
afterwards obtained of that King to annex the fame Houfe I
|i£. 3. «.2o. and Chapel of the Converts to the Mafter of the Rolls and
his SuccefTors for ever. I
4 ConciL Tole- The Conftitution of this Society (when it was in being)
tl ^7* ^^' ^^^ purfuant to the Cannon Law ; for by that it was de.
Grat.Dij?.22. ^^^^^'> recidng. Thai in regard the Companies of evil Men 11
^u. I. b' 29. ^0 oftentimes corrupt even the good., how much more then
^ qu,u thofe who are prone to Vices? Let therefore the Jews, who
are converted to the Chriflian Faith^ have no further Com-
munion henceforth with thofe who ftill continue in their old
Jewifh Rites., lefl per adventure they fhould be fubvertedhy
their Jewifh Society. Therefore (I(Ile ti£Crte, That the Sons
end Daughters of thofe Jews zvho are baptized^ and that do
not again involve themf elves in the Errors of their Parents'^ I
flmll be feparated from their Company^ and placed with "
Chriflian Men and Women fearing God., where they may \e
well ififlru^ed., and grow in Faith and Chriflian Manners,
And further by the fame Council it was decreed, That if a
JcwffDould have a Wife converted to the Faith., they fhould
pe divorced^ unlefs upon admonition the Husband would
follcw,
IX.
[[ Chap. VI. C)f tfie 3Ieto3* 471
1 IX. However thefe People having got footing for their Rot. i Reg,
[ Perfons, foon obtained Licence notwithftanding againft the J°^^nuis,
exprefs Canons, not only for the ereding of Synagogues, ^chali T7 ^ '
but alfo obtained a Charter, whereby was granted to one Vide Co. 2.
James ^/London, a Jewijh Priejl^ the Priefthood of all the l^fifol 508.
Jews throughout all England, tO Ija^e anD tO IjOlD ft tJUt:^ large!""^ ^^
ing !)i0 Hi'fe fcccly, quietly, Ijonourablp and mtirel^,
toitljout Q?oleilation, 'cEuDaWe, or 3Diffui:6ancc ii^ an^
JelD or Cnglifii^man fit tlje oEjCcrcfCe thereof, &c. And in
the very clofe of the fame there is alfo granted, '(Ifjat \t
ijoulti not be impleatitti for an? tljing: appertaining; to Ijint,
Imt onlp before tljc %\\\^ ijimfelf, or j)i0 Cljief ludice*
This Charter was made at Roan^ from whence the Con-
queror iirft tranfplanted thefe People into this Realm.
X. And though they obtained footing in mofl of the
great Places of England \ yet fome there were who ob-
tained fuch favour as to be exempted of their Company,
as New-caftle^ to which Corporation it was granted. That Clauf.\%Hen,
no Jew from thenceforth fliouid remain or refide in their 3- ^- ^^'F^^^
Town during the Reign of King Henry the Third, or his ^ '^' *
Heirs ; fo likewife they of Southampton, Winchel[ea, Wi-
comh^ Newberry, Berkhamfted, and other Places.
If a Jew died and left an Infant, the Houfe did efcheat ciauf. ^ H.5.
to the Crown, until the fame was redeemed by the Heir ^- ^7- dcdom.
at full Age, and in the interim the King might grant the J^^^^^^^^-
fame till he came of Age, together with all his Goods,
Chattels, Lands, Tenements and Hereditaments, and then
upon Payment of their Fines, they had a fpecial Writ of
Reflitution awarded to give them aflual PoffefTion.
XL By the Laws of England, if a Man died leaving If- SeUen. defuc-
fue divers Sons, the Lands defcended to the Eldeft 5 but ''^J^^
a Jew dying, leaving IfTue divers Sons, after the Fine paid ^f ^o. ^ ^^"*
to the King, they all inherit Lands, Goods and Chattels in
a kind of Coparcenary^. So likewife by the Law of the * But that was
Realm, if a Jew died feized of Lands, his Wife could not bfif},me^f o'f
by the Common Law, bring a Writ of Dower ; yet fhe the Juftices
might bring a Plaint before the Juflices affigned for the appointed for
Jews in the Nature of a Writ of Dower, and fhould there ^^^ J^'w^j.
recover, neverthelefs fubjedt to anfwer the King a Fine,
nay, though the Hufband was converted to the Chriftian
Faith f. + p^- ^ V-
^ S 4 }^^ Clauf.2<^.H.i,
in, 4. dorjb, Clauf, 36 H. 3. m. 26. pro quccdam Judaa,
/
472i SDf tfie 3!efeS* Book IlFj
Ji. 3. «r. 3. The Power of Excommunication was granted the Jews
to excommunicate any of their own ProfefTion ; but the
fame could not be done by them without Licence.
XII. Notwithftanding all thefe Privileges and indulged
Liberties which were granted to them by thofe Kings from
the Conqueror to that their fatal Year in iS E. i. yet they
were in no other Condition but moft abfolute Bond-flaves,
and exquifite Villains, for their Names were enrolled in the
36H. 3..T. 6. King's Exchequer for the Jews, and they confined to live
and abide only in fuch Places as thofe feveral Kings, or
their Juftices afTigned for their Cuflody, fhould prefcribe
and allot them, from which they might not remove with-
out fpecial Licence, but always be refident, that fo the
King's Officers might on all Occafions find both them and
their Families, and then as often as the King's Pleafure
was, were they tranflated from Place to Place, and not fuf-
fered to have any Habitation but where they had a common
Cheil, and where Taxes were impofed on them, or Debts
were ov/ing from them to the Crown, their Perfons, Wives,
Children, Infants, Families were imprifoned and fent to re-
mote Places and Caltles, nay banifhed, executed, and put
to Fines and Ranfoms upon all fuch Occafions as thofe
Kings thought fit ; they were fold either Perfon by Perfon, •' I
or in wholefale, as BondOaves or Villains in grofs by the
King, and mortgaged to thofe who would accept them as
a Pledge, or otherwife advance any Monies upon their
AlTignment.
zClau/2. //. XIII. And that they might be diftinguifhed from others,
g.OT. \o.dorf. they were obliged always to bear a Badge and Table on
their outmofl Garments, as well females as Males, where-
ever they rode oi* went, to diftinguilh them from Chriflians,
with whom they were to have no intimate Communion,
nor could the Chriftians be Servants or Nurfes to the Ji'ws
in any kind, their State and Condition being fuch, that they
were all of them meer Slaves and Servants to the King in
pne kind or other.
Vv''hcn they had entered the Realm, they were abfolutely
prohibited to depart without fpecial Licence ; the which they
hardly and but fjldom could obtain, and if they attempted
it, the which they fometimes would do to avoid the heavy
Taxes that were laid on them, they were imprifoned and
put to fcvere Fines and Ranfoms.
^ . • XIV.
I
tl
II Chap. VI. ®f tfie %t^$i 473
XIV. As for their Real and Perfonal Eftate, it v^2i%C!auf.i0oh,
wholly at the Difpofal of the King ; for he might feize all ^^^^^^- ' 3-
their Lands, Houfes, Rents, Annuities, Fees, Stars, meV.z,paru\,
d Mortgages, Debts, Goods and Chattels whatfoever, and Ehor.
" {t\\^ grant, releafe and give them to whom he pleafed at
his Pleafure.
At their Deaths their whole Eftate, both Real and Per- ^lauf. 5 F. 3.
fonal, efcheated to the King -, neither could their Heirs or ^' y* ^^^"^^^
Executors, Wives and Kindred have or enjoy them without '^^^"'"*
making Fines, Releafes, and Compofitions, with the King
I for them.
And when they had Occafion to fue or implead any Per-
fon upon any Account, Real or Perfonal, they could not
proceed till Licence obtained, which always was upon Fines
made -, and thofe very Adions, after they were commenc-
ed, he could ftay, and the very Debts which they profe- ^^^^f, 7. y^.
cnted for, he might refpite Payment of Principal or Inte- ^\^^^'
reft, and give what Time he pleafed •, nay, he could not Clau/(). Jo-
only lower or leflen the Sums mentioned in their feveral ban. Reg,
Charters, but he might releafe them for ever ; and though ^' 5» ^ ^*
the King might pardon or releafe a Debt, yet he might
notwithftanding revive * the fame. And thofe pubhck *C/^7«/:35H.
Chefts, the common Repofitory of all their Fortunes, they 3- ^' 5- ^^^f-
often feized and fealed up the fame, and difpofed what of
them they pleafed to the King's own Ufe, notwithftanding
their Charters and Grants of Privilege, nay, forced them
fometimes to tax and diftrain one another under Pain of
perpetual Imprifonment, Banilhment, Confifcation of all
their Eftaces, and the moft fevere Penalties that could be in-
fiided, they living purely under an unceffant and arbitrary
"Will of thofe feveral Kings ; and that which was the more
to be admired, that if they turned Chriftians, they imme-
diately upon their Converfion forfeited all their Eftates to
the Crown. At length King Edward the Firft having ^;//^;.,^^.^ 2.
fought all ways that might be to reform the exorbitant Ufu- H. 3. Rot. 9.
ries and OpprefTions which they daily committed, did, ^" ^^® Exch*-
through the earneft Sollicitation of the Commons, publifh ^^^^'
an Edidl in Parliament for their total and univerfal Banifli-
ment, which accordingly was done, and the King at that
Time fent his Letters and Letters Patents to feveral Sea-
Towns, reciting, that he had prefcribed a certain Time for
|:heir Departure out of the Realm, commanding them not
to
474 ®f tfje actoiS* Book III..
CoJk. 2. Jnfii(. to do, nor fuffcr any Wrong to be done them, but togrant\
fol. 507. theni fpeedy PafTage at their own Colls and Charges. After 1
which prefixed time, if they were found refiant within the 1
• Mafih. Realm, they were hanged *, and fome of the Rents and '
Wejim. Flor. profits of their Houfes were difpofed to pious Ufes, but all
1 2Q0 "* "^^^^ generally feized into the Crown, and difpofed and fold
fart. 2. to the Englijh by feveral Grants and Sales, under the Great
fol. 381. Seal o^ England, Thus thefe People, having by their ex-
traordinary Ufury, Extorfions, and Oppreflions, reduced
In the 20th themfelves to be defpifable, and then banifhed, and that by
Yearof ^d^. I. ^ People too, with whom, if they had continued in Love and
it^^Cbart^ Friendfliip, and improved their Fortunes by the Rules of
Je Judaifma Moderation, they in all Probability might have continued
Liters Pa- ^nd flourilhed, they having from the feveral Kings, from
tentes de domi- ^ Conqucror down to their fatal Year, as many large Pa-
€oncejJis poji tents 01 Liberties and r ranchiles granted them, as ever were
torum exilium granted by any Chriflian Prince or State fince the Extirpa-
de Jnglia, ^^^^ of their Commonwealth.
dred^parti- ' ^^^^ notwithftanding tliis, yet Commerce and Traffick
cular Patents having now taught them a more exquifite way of enridi-
of the Sale of jpg themfelvcs, than by that cruel and bitmg Trade of
their t^pufcs. ufury, they have now got Footing into the Realm, and
do now flourifh in as high a manner as of old, (though itii^i
^ hoped, not in that manner for which they juftly procured
their total BanilKment out of the fame) and fince Time hath
been fo kind to them as to deflroy thofe Rolls and Monu-
ments of their former Cruelties and OpprefTions, and where
their Banilhment was recorded (there being no other Foot-
fteps of the fame, nor of any other before 5 Ed. 2. to be
found, they being totally loft ; yet there are other Records
that have Sufficient Recitals of the fame as well as Hiftory
to evince the Truth, if in the leaft contradided) it is
hoped, that if they continue in the Realm, that they will
by their conftant Anions confult and do fuch things as may
ftand with the Honour, Juftice, and Good of the Kingdom.
CHAP.
( 475 )
CHAP. VII.
I. Merchandizing^ the fame is ho-
nourable and profitable both to
Prince and State.
II. The Adn) ant ages that might ac-
crue to Kingdoms y if the more noble
and richer fort applied themfehes
to the fame.
III. Of the firf hjlitution of the
Co?npany of Ad-venturers.
IV. Of the hjlitution of that in
England to the Indies.
V. O/' the forming of that in Hol-
land, to thofe Farts.
VI. Of the forming the like by the
mojl Chrijiian King to the fame
Parts.
VII. Of the Ad'vantages and Dif
aduantages confdered, in reference
to reducing them to Companies.
VIII. Ho-vo Merchants in England
nuere provided for of old,
IX. Of their Immunities fettled by
Magna Charta.
X. Of Merchant Stranger Sy nvhofe
Prince is in War with the Crotjon
©/"England, h)njo to be ufed in time
of War^ and the Re a fans nvh^
Merchant Strangers ought to be
ufed fairly.
Xr. Goods brought tn by them, the
Monies raifed^ ho^jo to be difpofed,
according to the Statute of Em^
floyment.
XII. Merchant-Strangers, made De*
nizens by Parliament, or Letters
Patents, to pay as before they
nverefo made.
XIII. What things requijite that
make a competent Merchant ac-
cording to Lanv.
XIV. One Merchant may ha've an
Account againji his Partner, and
if he dies, no Survi'vorjhip to be
of the E/iate belonging, or acquire
ed in their Trajffick.
XV. Of the Immunities ivhich they
claim by the Cufom of Merchants^
in reference to Exchange.
XVI. All SuhjeSis are refrained
to depart the Realm but Mer-
chants.
XVII. Prohibitory Lanus bind Fo^-
reigners according to the Leagues
of Nations.
XVIII. The Necejjty and Advan*
tags that is incumbent on Mer-^
chants to prefer've their Marks,
I. Tp H E R E are certain Affairs which fhould be left to
X the poor and common People to enrich them, but
there are others which they only can execute which are rich ;
as that at Sea by way of Merchandizing,, which is the moft
profitable in an Eftate, and to the which they fhould attri-
bute more Honour, than fome do here at this Day. For
if in all Eilates, they have thought it fitting to invite the
Subje6ts by Honour to the moft painful and dangerous Ac-
tions, the which might be profitable to the Pubhck, this
being of that Quality, that they fhould attribute more Ho-
nours to thofe that deal in it ; And if Nobility hath taken
its
p.
le:
or
8
1
476 £)i ^ttClainS. Book III.
Trtetcrmerca- Jts Foundations from the Courage of Men, and from their
tura ufumNa- Valour, there is certainly no Vocation in the which there u
'ues ret mtlita- ^ ' • j • i- 1 i ^
ri & inlands fo much required as in this •, they are not only to encounter
in fnari contra 2ind ftrivc aiiiongft Men, but fometimes againft the four
externam <vim Elements together, whlch is the ftrongefl Proof that can be
"^t^m of the Refokition of Man. ^ This hath been the Occafion, ,
Ariftot. 7. Po' that fome have been of Opinion, that they fhould open this =
/:/. 6. Mare Door to Merchants to attain to Nobility ^ fo as the Father
K.if ^^if" ^^ ^"^ ^°" ^^^^^ continued in the fame Trade, and to fufftr
tela m^rei pub. Noblemen, who are commonly the richeft in Eftates, to
ait Tacitus 5. pra6life themfelves (without Prejudice to their Condition)
Ilij}. ClaJJes in this of Commerce ; the which would be more honour-
Imperii mani- ^j^ ^^^^^ ^j^^^ ^^^^ ^^ ^^ Ufurers and Bankers, as in Itah :
Jthenienftum or to mipoveriihthemlelves in doing nothing but Ipend, and
hyati apud make ConfumptioH of their Fortunes, and never gathering
Ihucydidem, Qj. J^yjpjg up^
lib. I. H.
Orat. ad La'
ced^mon.fortunas Greci^e in nan}ium pr^jldio Jltus fuiJJ'e predicant, ejus rci muri li^nei
Themiftoclis abunde jidem fecerunt^ idem experientia fatis hodie loquitur^ hide Cofmo
Medicseo familiare fuit dictum^ Non habendam potentem qui potentloe terreftri, non
fimul etiam navalem haberet conjunftam. Et Hifpanorum eji adagiuniy Regnum fine
portu effe ficut furnum abfque igne ; Praterquam quid na-vigatiojies cultui vita; ^ ar*
tium tradudioni Coloniarium 'valetudiney Cif njoluptati ferviunt.
The mod ufual way of buying and felling of Commodi-
ties, between Merchants beyond Seas, is by Bills of Debt,
or Obligatory, called Bills Obligatory, which are thereby
the Law Merchant Alienable or AfTignable, tho' not by our
Law, as being held as chofes en A^ion^ where no Property
can pafs by AfTignment or Alienation, though certainly it
would be of great Convenience, were they by Ad of Par-
liament made afTignable, as, by Cuflom, their Bills of Ex-
change are by Endorfement. hex mercat. 71.
The Form of fuch a Bill Obhgatory.
I, /L B. Merchant of Amfterdum^ do acknowledge by
thefe Prefents to be truly indebted to the honed C. D. Eng-
lijh Merchant dwelling at Aiiddlehorongb, in the Sum oil]
500 /. currant Money for Merchandize, which is for Com^
modities received of him to my Contentment ; which Sum
of 500 /. as aforefaid, I do promife to pay unto the faid
C Z). (or the Bringcr hereof) within Six Months next after
the Date of thefe Prefents. In Witnefs whereof, I have
fubfcribcd the fame diX. Amjierdam^ the ;oth Day of 7«^J'
1704.
Chap. VII. SDf ^mlmt$. 477
704. Stilo novo. Sometimes, and in fome Countries, this Lex. Mercat,
Bill is fealed. And if fuch Bill be made beyond Seas, by 74> 7S'
2, 3, or more Perfons, as having bought a Comm.odity as
Partners together, or taking up Monies together at Inte-
reft ; wherein they bind themfelves all as principal Parties
or Debtors, yet every one is bound to pay but his own Part,
by the Civil Law, and Cuftom of Merchants.
' Merchants ought to be very wary and circumfpedl in their Surety, tho'
giving a Charadter one of another, as to their Credit in their not intended.
Dealings as to each others Ability, left unawares they be-
come Sureties, where not fo much is intended. To which
End I (hall cite a Cafe in Lex Mercat. cap. 10. fol. 6g,
which was this. A Merchant being at Franckfort in Ger-
many, during the Mart- Fair there, went into a Merchant's
Warehoufe to confer of fome Bufmefs with him, where he
found another Merchant of his Acquaintance cheapening a
Parcel of Silk Wates of the faid other Merchant, to v/hom
this Man (as it feemed) was unknown ; whereupon the
Seller of the faid Silk- Wares took occafion to afl<> of him,
whether he were a good Man, and of Credit, who anfwered
he was. So the Bargain was made, and the Goods deli-
vered to the faid Merchant, the Buyer, to the Value of
460 /. For the which he made a Bill Obligatory, payable
the next Fair following •, at which time the Buyer not ap-
pearing, Demand was made of the Merchant that gave the
Buyer the Charafter of being a good Man, and of Credit,
who in his Defence did alledge, that what he faid was but
only a bare Charadler, and at moft was but Nudum Pa^um
ex quo non oritur A5lio, and fo not bound to pay the fame,
as having had no Confideration for it : And upon Suit there-
upon, he was adjudged to pay the faid 460 /. All he had for
a Recompenfe to reimburfe himfelf, was the Buyer's Bill
Obligatory made over to him, which proved of no Avail,
for that the Buyer became infolvent. Note, this was by
\\\t Civil Laiv and general Law and Cuftom between Mer-
chants. Though I conceive this would not in any wife avail
in our Law, but thought fit to add this Cafe as a Caution
to Merchants. If he had faid, he is taken or reputed to be
a Man of good Credit, or, I take him to be fo, he had been
cleared by the Law, and the Cuftom of Merchants.
A6lion of Debt was brought by a Conceffit folvere, ac-
cording to the Law Merchant, and the Cuftom of the City
of Brijtol^ GodholL 49. If '
47? S)t S0ttd)m\t^. fiooKlii.
Two Partners If two Men be Partners of Merchandize in one Ship, and
one makes a ^^^^ Qf them appoints and makes a Fador of all the Mer.
Fadtor. chandizes, both of them may have Writs of Account againft
him, or they may join in one Writ, Tamen qii^re^ Godbok
90. Fajhion cont, Atwood.
Account by One joint Fa6lor may account without his Companion by
one joint Fac- ^j^^ y_,2cn of Merchants, for Fadors are oftentimes difperfed,
ther^*^ ^ ^ °' ^^ ^s ^h^y cannot be both prefent at their Accounts. Goort
y ah cont. Dawbeny^ 2 Leon. 75, 76.
Sale by a Fac- A Merchant delivered Ker/ies to be fold in Spain, the
tor, to one Fador fells them to one who becomes aBankmpt (and there
Bank^rrr'' ^^ ^ ^^^^ ^" ^P^^^' ^^^^ ^^ ^^^ ^^^^^ ^"^^^ ^^^^ before a Re-
gifter, and had a Teftimonial, that he fhall be difcharged)
we judge here that he Ihall be difcharged. In Capps and
Tucker's Cafe. 2 Rolls. Repts. 497.
Account a- Account for Goods received ad Mercandizandum is good
gainll him. ^^ q^^ j^^^^ Hales. And though declared againft as Re-
ceptor general, yet fhall not anfwer other Profits, and fhall
have Charges as a BaylifF. Burdet cont, Threele, 3 Kcbli \
387-
Faftor buys If a Servant or Fallot buy Goods generally, and doth
generally. not upon the Contrail declare that he only buyeth as Servant?
or Fador, he is chargeable in his own Right. De^elderl
againft Savory. 2 Keble 812. j
Where Ac- Jn account 'twas held per Curiam^ that if a Man delivers
count, not .^/. y^Q ^^ i^jg g^yjiff ^^ pador to lay out for him in Com-
Jumpjiti lies a- ,. / , ^ . . ^^. ^ r \ 1 a
gainil a Fac- modities, he cannot bring an Ajjumpjit., but only an Ac
tor. I Vent, count ; for it may fo happen, that the Faflor hath laid 0
'*3- more Money than he hath received.
Merchants Indebitatus Affumpfit for 1000 /. for Monies had and re-
Account Stat, ceived, and alfo an Infimul computajfet, upon Account •, the
pleadrbTe. looo/. became due; the Defendant pleaded the Stat, of
Limitations. The Plaintiff replied that he is a Merchant,
and the Provifo and Exception for Merchants Accounts.
By Twifden^ Rainsford ^ Moreton abfente Kelyng, ftated
Accounts between Merchants as this Cafe is, are not with-
in the Provifo, but only Accounts Currant, IVchber cont.
Tyrell. i Levinz 287. 2 Keeble 611. 2 Sand. 124. Where
Judgment for the Defendant. Yet the Cafe of Martin and
Delboe., I Levinz 298. to the contrary upon an Account
ftated between Merchants ; yet the fame Cafe, i Mod. 70.
Judgment for Defendant, z KeM 6y^» i Vent. ^^ ^
ij
Chap. VII. fiDf 9^tttW\t&* 479
I Sid. 465. See likewife the Cafe of Famngton Cs? Lee,
I Mod. 268. y 2 M?i. 311.
II. Hence will grow many Advantages both to the publick
and private : To the publick, for that they that fhould deal
in Commerce, having Means, Courage, and Sufficiency
for this Condu6l, it would be far greater in the furnilhing
more Ships to Sea, and better armed, the which the State
at need might make ufe of for the Safety of the Publick,
and would add to the Reputation of the Nation in all Parts,
they knowing that an Indignity or Damage offered to fuch,
would require Satisfaction with a flrong and powerful Hand ;
the which they cannot do, who being poor, and having but
fmall Stocks, or what they borrow from Bankers, or are in-
debted for the Cargo which they fend forth, have not the
Courage to hazard themfelves and their All in an Enter-
prize that is great. Befides, fuch who have Honour,
Riches, and Courage, would keep up the Reputation of
their feveral Commodities, by not lefTening the Market,
whereas xht poorer forty {to fay Cuftoms^ Fr eighty Bills of
Exchange.^ and other contingent and necejfary Charges ^ which
accompany the importing and exporting,) are often forced
to fell for an inconfiderable Gain ; nay, fome rather than
their Wants fhould be known, will for ready Money fell
their Goods for even lefs than they coft : All which would
be prevented, if fuch Perfons of Value would apply them-
felves to a prudent Management of the fame *, for what-
foever Hazard they run, there would be more gotten by
fuch in two, than by the poorer fort in three or four Voy-
ages, and by that means it would be the Occafion of avoid-
ing many Expences, and prevent the importuning their
Prince for Places, when perhaps they might get more at
Sea in one Year, than in ten at Court. Befides, Expe-
rience hath taught, and doth daily manifefl, that where
the moft Subflantial have dealt in Commerce, it hath in-
riched both them and the State under which they lived ;
and this prefent Practice of the Venetians^ Portugueze^ Spa-'
niards and Hollanders^ plainly demonftrates.
Stat. 9, 10 IV. 3. c. 15. Of ending Suits by Arbitra- Arbitrameuf,
ment. After the i ith of May 1698. All Merchants and made a Rule
Traders and others defiring to end any Controverfy, Suit °^ Court,
or Quarrel, for which there is no other Remedy but by per-
fonai Adion or Suit in Equity, by Arbitrament may agree,
that
48o • C)f £0ttt\)a\m. Book IIU
that their SubmlfTion of the Suit to the Award or Umpi.
rage of any Perfon or Perfons fhould be made a Rule ol
any of his Majefty's Courts of Record, which the Parties
Ihall chufe, and may infert fuch' their Agreement in thei-
SubmifTion, or the Condition of the Bond or Promife ; ana
upon producing an Affidavit of fuch inferting, and upon
Reading and Filing fuch Affidavit in the Court fo chofe,
the fame may be entred of Record, that the Parties Ihall
fubmit to, and finally be concluded by fuch Arbitration or
Umpirage. And in cafe of Difobedience thereto, the
Party negledling or refufing, fhall be fubjed to all the Pe-
nalties of contemning a Rule of Court, and Procefs fliall
ifTue accordingly, which fhall not be flopped or delayed,
unlefs it appear on Oath, that the Arbitrators or Umpire
mifbehaved themfelves, and that fuch Award was cor-
ruptly or unduly procured. In which cafe fuch Arbitra-
tion or Umpirage fhall be void and fet afide by any Court
of Law or Equity, fo as fuch Corruption or undue Pradice
be complained of, in the Court where the Rule is made for
fuch Arbitration, before the laft Day of the next Term,
after fuch Arbitration made and publilhed to the Parties.
Which Claufe may be to the Purpofe following, at the
End of the Condition, viz. And the abovementioned^.5.
doth agree and defire that this his Submiffion to the Award
above-mentioned be made a Rule of His Majefty's Court
of King's Bench, purfuant to the late A(5t of ParliamenC^
for this Purpofe provided.
The like for the other Party fubmitting to fuch Awar
Sa/L 72. /./.8. A SubmifTion was to an Award by Bond, and at the En
of the Condition of the Bond was this Claufe : Jnd if th
Obliger Jhall con[cnt that this Suhmijfion jhall he made a Ruli
of Courts that then., &c. Upon Motion to make this Sub-
miffion a Rule of Court, it was oppofed, bccaufe thefe Words
do not imply his Confent ; but if he would forfeit his Bond,!
he need not let it be made a Rule of Court ; yet becaufe
this Claufe could be inferted for no other Purpofe, the Court
took thefe conditional Words to be a fufficient Indication of
Confent, and made the Award a Rule of Court.
Salk. jz.pl. A Matter was referred by Confent at Nijifrius to the
\Q.farreJley%, three Foremen of the Jury •, and before the Award was
made, one of the Parties ferved the Arbitrators with a ^uh-
p^na out of Chancery, which hindered their proceeding to
make
Chap. VII. ^f ^tttljmiS. 481
make the Award. And the Couit held this a Breach df
the Rule, and granted an Attachment, Ni^ Caufa.
Upon a Submiffion to the Award of the three Foremen Sa/ly^.pl.n,
of the Jury, who made their Award, the Defendant moved
to fet it afide ; becaufe they went on without giving him
, Time to be heard, or produce a Witnefs : And Holl Chief
Juftice faid, the Arbitrators being Judges of the Parties
own chufing, the Party fhall not come and fay they have
not done him jfuftice, and put the Court to examine it :
JliUr, where they exceed their Authority : however, the
Award was examined and confirmed, and the Plaintiff
moved for an Attachment for not performing ir, and the
Court held, that the Non-performance, while the Matter
was Sui^ Judice, was no Contempt : then the Plaintiff moved
for his Cofbs, and that was denied ; upon which Powel Ju-
ftice faid, that feeing they could not give the Party any
Cofls, he Ihould never be for examining into Awards again.
H, bound himfelf in a Bond to fland to the Award ofSa/k. 71- pK
J, S. which Submiffion was made a Rule of Court. The ^^*
Party, for whofe Benefit the Award was made, moved the
Court for an Attachment for Non-performance^ which was
granted : pending that, he brought an A6lion of Debt upon
the Bond ♦, upon this Serjeant Darnell moved that he might
not proceed both ways ♦, and likened it to the Cafes, where
the Court ftays Actions on Attorney's Bills, while the
Matter is under Reference before the Maffer. Sed per Cu-
riam^ the Motion was denied, and this Difference taken ;
where the Court relieves the Party by way of Amends in
a fummary way, as in the Cafe cited, there it is reafonable i
otherwife here, where the Plaintiff has no Satisfaction upon
the Attachment, and the Defendant was put to anfwer L>
terrogatories.
Attachm^ent lies not for not performing an Award made Sa/lSj f. ij
upon a Rule of Court without a Perfonal Demand. Hols
Chief Jufdce remembered the firft Attachment of this kind
was in Sir John Httmble's Cafe in Kelyng*s Time, in whichj
and ever fince, a Perfonal Demaad has been thought necef-
I fary. In fuch Cafes of Awards, though they be not legally
' good, an Attachment lies for Ndn-performance, aliter^ if
impoffible : but the Party is excufed as to that Part which
is impoffible only.
H h If
4^2 ®f ®etcljantg* BookIii.
^alk. 84.//.3. If a Rule be made at Niji prius to refer a Matter to the
three Foremen otthe Jury, and that the Plaintiff may either
enter up Judgment on the Verdi(5l, or have an Attach-
ment for not obeying the Rule of Court, it being in his
Eletflion which way he will execute the Award •, and this
was affirmed by Mr. North^y^ and at the Bar, to be the con-
ftant Prat5lice. Tourton and Gould (in the Abfence of the
Chief Juftice) doubted of it, becaufe the Verdid flood ftill
on Record ; to which Mr. Nor they anfwered, there could
not be a Judgment entered on fuch Verdi6l without Leave
of the Court : And the Attachment was granted. |
III. To engage Perfons of Rank and Fortune in Trade,
that induflrious Nation the Burgundian^ procured the AlToci'
ation or Incorporation by John Duke of Brabant^ of that
ancient Company of the Adventurers, Amio 1248. which
were then called the Brotherhood of St. Thomas Bechtoi
Canterbury ; which being afterwards tranflated into Englani^
was by Edward the Third confirmed, and by his Succeffors
Henry the Fourth, Henry the Fifth, Edward the Fourth,
Henry the Sixth, Richard the Third, and King Henry the
Seventh, who gave them the Name of Merchant- Adven-
turers, and from him fuccefilvely hath their Charter been '
confirmed down to, and by his facred Majefty that now is; ;
and as this Society is of ancient Eftimation, lb is their Go-
vernment very commendable. ' j
IV. The Society of the Company trading to the E4-\ 1
Indies^ differs from others, both as in reference to the Per-'
fons and Members, which are at this Day many of the prin-
cipal Nobility of England^ as alfo for that their Adventu-
rers run all into many Stocks, and is governed and carried
on jointly upon Benefit and Lofs ; they were incorporate,
Anno 1599. and fince they furrendered their Charter, and
accepted a new one, and are incorporated by the Name of
Governor and Company trading to the Eatl-Indies ; their Ad-
* Abundance venturers run all into one general Stocky and is governed
more at this and carried on upon Benefit and Lofs ; the fame being at
Time, under this Day, according to the Subfcriptions, about * four hun-
ct-I'-'"' ■ ^^"^^ thoufand Pounds, which the feveral Perfons fubfcribers
mat^'irraid ^^'^-^J f^Hj transfer, and d^fpofe of; but they can no ways
in this Para- t-ake out the fame : The Great Slock may ht increafed, it
it'ockr^J"^? the Company fhall fee Occafion to permit it ; but dieyare
toThe oid'^' very cautious of the fame, for that the greater the Divi-
Compan/. • ^^nds,
Chap. VII. £>f S^crcfiaittg* 483
dends, the more Reputation the Stock bears, which above
all things is to be maintained -, hov/ever, diredly upon his
own Account, no Perfon can have above Ten thoufand
Pound Stock there, nor can he have a compleat Title, till
he is made a Freeman of that Society *, their Returns are
very profitable, and of late very rich, and have many Places
of great Importance in India:, as Mafulapatan on the Coaft of
Cor omandd^ Bombay^ Surat, Fort St. George, Banta?n, &c.
V. The Dutch having found Relief in their Diftrefs from
the Britijh Shore, againil their powerful Enemy, found alfo
a Pattern to carry on Commerce ; they not being wanting
in the imitating the Incorporation of a Company, trading
to thofe Places which they poffeffed in the Eaji-Indies ; and
therefore in the Year 1602. Leave was granted from the
States to traffick into thofe Parts before all others, during
the Space of one and twenty Years, the which was granted
them, in Confideration of five and twenty thoufand Florins,
which they promifed to pay to the States during the firffc
ten Years. Thus reduced all into one Company, Amfier"
dam had one Moiety, Middlehurgh in Zealand a fourth
Part, Delft^ Rotterdam, Home, and Enchuyfen, had each
of them a fixteenth Part, the whole Stock of this Union
amounting to upwards of fix Millions of Livres, or fix hun-
dred thoufand Pounds Sterling.
For the Diredlion of this Trade, and the Interefls of
the AflTociates, they have eflablifhed in either of thofe
Towns, a certain Number of Adminiflrators, at Amfter-
dam twenty, at Middlehurgh twelve, in either of the reft
feven \ and if any one dies, the Chamber of the Place names
three, of which either the States-General, or the Magiflrate
of the Town chufeth one.
Thofe Chambers chufe feventeen among the Adminiflra-
tors, that is to fay, Amfterdam eight, Middlehurgh four,
"Delft and Rotterdam two. Home and Enchuyfen tv/o ; and
the feventeen are chofen alternatively, fometimes at Mid^
dlehurgh, fometimes at North-Holland -, the which are called
together to refolve jointly of how many Ships, and of what
Equipage and Furniture they fhall make the Fleet, which
they mean to fend, and to what Fort or Coafl they Ihould
go. This AiTembly is held fix Years together at Amfter^
dam, and afterwards two Years at Middlehurgh, and then
again at Amfier dam -, by the Conditions of the Accord the
H h 2 Ships
nations.
484 ©f a^etcSautjSv Book III.
Ships muft return to the fame Port from which they part-
ed ; and the Spices which are left at Middkhurgh^ and
other Chambers, are diftributed amongft them by the
Weight of Amfterdam^ and the Chamber which hath fold
her Spices, may buy from other Chambers.
• There are By this Order * they have hitherto continued this Com-
nowfomeVa- fierce with Reputation, not as fimple Merchants only, but
as if they were Sovereigns, they have made in the Names
of the States^ Alliances with many of the Princes of thofe
Parts •, as with the Kings of Siam^ ^adoen^ Patam Johor^
the Heir of Malaca^ Borneo^ Achin^ Sumatra^ Baretan^
Jocotra^ and other Kings of Java •, they have made them-
felves abfolute Maflers of the Ifland of Amhoyna^ but by
what Means } — Where they have a Prefident who governs
in their Name ; at Banda they have Fort for a Retreat,
where they muft deliver the Spices at a certain Price ; in
female they have another a Mile diftant from that of the
Portugueze *, at Magniene they have three ; at Motive one •,
at Gilolo they have taken that which the Portugueze had
built ; and indeed whatfoever either can, or may confift
with their Interefl: in thofe Parts, they have ingroffed, and
by that means almoil the Trade of the whole Spices of the
Eaft. ^
VI. So like wife the moft Chriftian King hath within few
Years eftabliflied fuch another trading to thofe Eajlern
Parts.
And in England we have feveral others, as that of trad-
ing to Turkey^ that of Africa to Guiney^ and feveral others,
dividing the feveral Trades, according to the Coafls and
Places where they are appointed, forbidding them to intrench
or incroach on each other ; fo likewife to all other his Ma-
jefty's Subjects on fevere Penalties.
VII. Now it is not the dividing of the Trade into Com-
panies that can anfwer the Expedation, but it is the divid-
ing the Trade into Companies, where the Places may bear
it ', as that to the Indies^ Turkey^ Hamhorough^ and fome
others : But to fome others, as the Canaries^ Prance^ or
any of thofe Places on this Side the Line, it has been con-
ceived the Trade will not anfwer it, but the fame would be
better diftributed, either into the Trade of voluntary AfTo-
ciations, or fingle Traders ; others perhaps would refult into
Monopolies, it incorporated \ however, the Standard Rule
is,
Chap. VII. SDf S^CtCftattW^ 485
is, to know whether the Trade of the Place will bear a
Company, or not.
The Hiidfons Bay Company made a By-Law, that if 2. p. wil-
any of their Members fhould be indebted to the Company, liamszo;,^^.
his Stock in the Company fhould be in the firft Place liable
to fuch Debt, and that they might feize and detain it : this
was held good in Chancery,
It is Foreign Trade that is the main Sheet Anchor of us
Iflanders, without which the Genius of all our ufeful Stu-
dies, and the which renders Men famous and renowned,
would make them ufelefs and infignificant to the Publick.
When Man has fathomed the Bottom of all Knowledge,
what is it, if not reduced to Practice, other than empty
Notion ? If the Inhabitants of this Illand were learned in all
the Languages between the rifmg and fetdng of the Sun,
did know and underfland the Situation of all Places, Ports,
and Countries, and the Nature of ail Merchandize and Com-
modities, were acquainted with the Order and Motion of
all the Stars, knew how to take the Latitude and Longi-
tude, and were perfedlly read in the Art of Navigation, to
what Purpofe would all be, if there were no Foreign
Trade ? We fhould have no Ships to navigate to thofe
Countries, nor occafion to make ufe of thofe Languages, nor
to make ufe of thofe Commodities •, v/hat would this Ifland
be without Foreign Trade, but a Place of Confinement to
the Inhabitants, who (without it) could be but a kind of
Hermits, as being feparated from the reft of the World •, it's
Foreign Trade, that renders us rich, honourable and great,
that gives us a Name and Efteem in the World, that makes
us M afters of the Treafures of other Nations and Countries,
and begets and maintains our Ships and Seamen, the Walls
and Bulwarks of our Country •, and were it not for Foreign
Trade, what would become" of the Revenue for Cuftoms, Les aJ'uanta-
and what would 'the Rents of our Lands be ? The Cuftom g^^ ^^ ^om-
would totally fail, and our Gentlemen's Rents of Thoufands %^'n^j^
"perAnnum^ would dwindle into Hundreds.
VIII. Merchants in England were always favourably pro-
vided for by the Common Law of this Kingdom. By the
ancient Laws of King Alfred it was provided, ^tUnWz Mirour,cap,i:
fuitiluenul^erc!3ant'^liennc!)ani*afc3nQ;leterce,forCque Sesi. 3!
auc iiuacter fairer, ne Que nul tinneurait m la terre ourcc J"^"-- %^
QiiaraUtC JOUt^ ; Merc at or nm navigia^ vel inimkorum qui- ^^l^^l- ^^P- 2.
H h 3 4^m
486
Magna
Charta,
cap. 30.
®f ^CtCljantg* Book IH.
dem qu^ecunque e^c alto (nuUisja5fata te^npeftatihus) inportum
aJi quern hivehenfur tranquilia pace fruanlur^ quinetiamji ma-
ris a5la fiu5libu5j ad dofnicilium aliquod illuftre^ ac pads he-
neficio donatum navis appulerit inimica^ atque iftuc nauu
conhigerunt ^ ipfi IS res illonim omnes atigiifta pace potiuntur,
IX. Again, by the Grand Charter of our Liberties, they
are provided tor in thefe Words : Omnes Mercatores ntfi
fuhlice antea prohihiti fuerint^ haheant falvum fc? fecurum
conduSium^ exire de Anglia^ ^ venire in Angliayn^ & me-
rari^ ^ ire per Angliam^ tarn per terram^ qtiam per aquam^
ad emendum vel vendendumftne omnibus malts tolertis per an-
tiquas ^ re 51 as confuetudines^ pr^terquam in tempore guerra.
Et ft fint de terra contra nos guerrina ^ tales inveniantur
in terra. nojlra in principio guerre ^ attachiantur fine damna
ccrporum fuorum^ vel rerum^ donee fciatur a nobis ^ vel a
Capitali jufticiario noftro^ quomodo Mercatores terra nojlra. ■
ira5ianiur^ qui nunc inveniantur in terra ilia contra^ nos guer-
rina J IS fi noftri falvi fint ibi., alii falvi fint in terra nojlra.
1 . By which it is declared, that all Merchant-Strangers
might be publickly prohibited to trade into this Realm, be
they in Amity, or otherwife.
2. All Merchant-Strangers in Amity, except fuch as be
fo publickly prohibited, Ihali have fafeandfure Conduct in
feven things.
Addtt Canon,
Mercafores,
quod 7ton tan-
tum de his qui
temporariam
in hojlico mo-
ram agitanty
intelligendum
eji, fed ut de
fubd.tis perpe'
1 . To depart out of
2. To come into
3. To tarry in
4. By Water and Land to go in,
I
through
5. To buy and fell.
6. Without any manner of evil Tolls.
7. By old and rightful Cufioms.
and I
England,
Juis.} tiajn i3'
horum <vita ab armis allena : Eft ac fuh hoc nomine conttnentur Jimul alii opifica l3 arii-
Jiccs. quorum quaftus pacem amat, non bellufn. Grodas de Jure belli^ lib. 3. cap. 1 1. § 12.
X. But concerning fuch Merchant- Strangers, whofe
Prii-ice is in War with the Crown of England^ if they are
found within the Realm, at the Beginning of the War,
they fhall be attached, with a Privilege and Limitation,
/. e. without Harm of Body or Goods ; with this Limita-
tion, until it be known to the King, or his Chief
Juftice,
Chap. VII. £)f ^mtimtSl 487
J Juftice *, how Merchants of England diVt ufed and Intreated * That is, the
in their Country, and accordingly they fhall be ufed in Eng- peeper of the
land^ the fame being Jus Belli. But for Merchant- Stran- AbVence.
gers that come into the Realm after War begun, they may Et in Repuh-
be dealt withal as open Enemies, it being the Policy of ^^'^^ maxime
England ever. to entertain Merchant-Strangers fairly. In ^^^^fun7h!,raB^lli
18th Year of Ed. i. in the Parliament Roll, it is contain- Co. 2. L?j}a'
ed thus : Gives London petimt quod alienigeni Mercatoresfoi- 58.
expdlantur a Chit ate., quia dicantur ad depauperationem Ci- Rot. Rarliarn.
vium., &c.« — Refponjio — Rex intendit quod Mercatores ex- 18 -E". 1./0/.4.
tranei funt idonei (^ utiles magnatibus^ &c. i^ non hahet^^^^'^^'
Concilium eos expellendi.
However, though great Immunities were granted them, ^^ot. Fa/con,
yet they always found Sureties that they fhould not carry ^' ^*
out the Merchandize which they brought in.
XL And at this Day *, if they bring in any Merchan- * The Law is
dize into the Realm, and fell the fame for Monies, they ^,^^.^''5^ ^^ ^^
are to bellow the fame upon other Merchandizes of Eng- \^^^^ ou" Au-
land., without carrying of any Gold or Silver in Coin, Plate thor wrote,
or Mafs out, on Forfeiture •, the principal Reafon of this ^^^ above, lib.
was as well to preferve and keep the Gold and Silver within 2<r£'.i3.§.io.
the Realm, as for the Increafe of the Manufactures ; and j^H.d^.cap. 5,
the fame at this Day extends as well to Denizens, fo made 5 ^- 4- cap,^.
by Letters Patents, as Strangers •, however, he may ufe the
fame in Payment to the King's Liege People, without -j" in- f Stat. 17. E,
curring the Penalty of the Statute of 4 H. 4. but yet in ^' c.i. con-
Stridtnefs of Law, ought not to receive * any Gold in ^"^^^ ^X 3 .^
Payment. ^ *?/H.e.c.i^,
XII. All Merchant-Strangers that fhall be made Deni- wH.j. c. 14.
zens, either by the King's Letters Patents, or by A61 of 22 -^ 8. e.g.
Parliament, muft pay for their Merchandize like Cuftom ^^ T'lni fhl
and Subfidy, as they ought, or lliould pay before they were 742.
made Denizens. Leg.unic.Cod,
XIII. Every one that buys and fells is not from thence ^^J^^^^-^ ^
to be denominated a Merchant., but only he who trafRcks m^^rcisle. 3'
in the way of Commerce, by Importation or Exportation ', in Leg. merds
or otherwife in the way of Emption, Vendition, Barter, 207. de 'verb.
Permutation, or Exchange, and which makes it his living •^^'^"'■^'
to buy and fell, and that by a continued AiTiduity, or fre-
quent Negotiation in the Myflery of Merchandizing : But c. ejidens 88.
thofe that buy Goods to reduce them by their own Art or aij},
Induftry into other Forms than formerly they were of, are,
H h 4 properly
488 flDf 50ttmM&. Book III.
properly called Artificers, not Merchants : Not but Mer-
chants may and do alter Commodities after they have bought
them for the more expedite Sale of them, but that renders
PauUe Cajir. them not Artificers, but the fame is part of the Myfteryof
in Leg, cum J", jvicrchants ; but Perfons buying Commodities, though they
^ ^ ' alter not the Form, yet if they are fuch as fell the fame at
future Days of Payment for greater Price than they coft
them, they are not properly called Merchajtts^ but arc
Ufurers^ though they obtain feveral other Names,* as Ware-
houfe-keeprrs^ and the like ; but Bankers, and fuch as deal
by Exchange, are properly called Merchants.
«i E % -r Co. ^I"^- The Wares, Merchandizes, Debts or Duties that
ph Littlet.fol. Merchants have as joint Traders or Partners, fhall not go
1S2. per Le- jq the SuiVivor, but fhall go to the Executor of him that is
gem ^^'^rcajG- ^^^^^{..^ ■ ^^^ ^H^j the Exccutor may join in an Adtion with
^^irdi inter thc furviviiigMcrchant, 2 Levinz 188. Hall againfl Huffam,
Mercatoreypro
leveficio commercti loctm ron hahet. Ca) Sed ^^re^ for it hath been fmce held,
that the hxecutor and Survivor cannot join, for the Remedy furvives, thcugh thb Duty
doth not ; and the.efore on Recovery he mull be accountable to the Executor for that.
Martin <v. Crump. Salk. 414.
I Fern. 217. In CopartnerfTiIps between Merchants, it is not ncceflary
to provide againfl Survivorfhip.
If two joint Merchants occupy their Stock, Goods and
Merchandize in common to their common Pront, one of
them naming himfclf a Merchant, fhall have an Account
^ Co. Litt, againil the other, naming him a Merchant ; and fhall
J 7 2. lib. In- charge him as Recent or * denariorum ipfius B. ex quacimqui
trat. 17, 18, caufd ^ contraElu^ ad communem utilitatem ipforum A. ^ B.
F. N. B. prcvenicnt.Jicut per L'gem Mercatoriam rattonahilker mon-
ii-j.D. ftrare pGtcrit^ lo H.y. i6. a.
Ld Raymond ^^ where there are tv/o joint Merchants, and one of them
'340. dies, thc other fhall have Account againfl their Fadlor,
without the joining of the Executor of the Dcceafed.
lex Oleraft. I^ there be fcrverai Owners of a Ship, and they fall out,
Partners of a the Ship notwithltanding this Variance may make one Voy-
Sni^) diiagree. j^gg upon their Common Charge and Adventure, before
fuch time as they fliall be fo much as heard to difiolve the
Partnerfliip ; but if after that they cannot agree, he who
defires to be free, is to ofrer to the rcfl his Part, at a Price
as he will either give or take ; which if he will not do, and
yet refufes to fett the Ship forth with the left of the Own-
' ers
Chap. VII. SDf S^etCljaitt^^ 489
ers or Partners, then may rig the Ship at their own Charge,
and upon the Adventure of the Refufer, fo far as his Pare
doth extend, without any Account to be made unto him of
any Part of the Profit at her Return. But they are bound
to bring her home fafe, or to anfwer him the Value of his
Part : But if the Perfons Partners, who have the greateft
Shar€ or Part of the Ship, refufe to continue the Partnef-
fhip, with one who hath but one Part, or a fmall Share in
the Ship, who cannot fell or part with his Part at a Price
{cty without great Lofs, nor is of Ability to buy their Parts,
then are they all bound to put the Ship to an Appraifement ;
and fo difpofe of her by Sale, or fetting her forth on the
Voyage according to fuch Appraifement. And if for want x
of Buyers, the poor Partner can neither avoid the Oppref-
fion of the richer, nor yet the Rich fatisfy the poor Man,
who alfo may be obftinate and wilful, then may the Judge
of the Admiralty fentence or decree the fame, as he may do
in Omnibus aliis bona fidei A5iionibus. Lex Mercat, 120,
121.
In an A6lion upon the Cafe againft A, the Plaintiff de- A£Hon againft
Glares upon the Cuftom between Merchants, l^c, that ifone when two
two Merchants are found in Arrear upon an Account, and P^°"^^ ^ *
they prom^fe to pay it at certain Days, that any or either of
them may be charged for the whole fingly •, and then fhew-
ed the Account, that A. and B. were found in Arrear fo
much, (^c. and promifed to pay it at certain Days, but did
not, and the Plaintiff brought his Adlion againfl A. only,
and refolved that it lay. 2 Rolls Ahr. 702, 703.
If two Merchants have a joint Trade, and one of them Salk. 126.
accept a Bill of Exchange, if he do not pay it, an Aflion
jjes againfl the other, fer liwtfden^ Stiles 370. but rather
againft both.
XV. And as the Law eflabhfhes Security for their Eftates, Martin 'verfus
fo it gives them other Immunities in rh ^ir Commerce ; for -^^^^^- * 7^^-
if one Merchant draws a Bill of Exch^ ige upon another, be
it In-Lan 1 or Out-Land, (if it be by \vay of Exchange) the
Acceptance of the Bill by the Party fhall bind him to that
Party, to whofe Ufe the Money in the Bill is to be paid, and
he may bring his Adion in his own Name, per Legem mer-
cat or i am,
A nd fo it is, if a third Perfon, that is a Stranger to the Vide tit. Eft-
Billj.lhall accept the fame for the Honour of the Drawer^ cbr.vge
^ •' ^ -j^i.«/w. 891.0.
49^ ©f S^etCljailtjS^ Book nil
it fhall bind him as efFeclualJy, as if he, upon whom the
Bill was drawn, had accepted it j and this by the Cuftom
of Merchants.
Ld Raymond And Courts of Law will take notice of general Cuftoms
2Si' among them, without being pleaded ; as that there is no
Right of Survivorfhip, ^c. but not of Special Cuftoms.
Merchandize is {<^ univerfal and extenfive, that it is in
a manner impoflible, that the Municipal Laws of any one
Realm fliould be fufficient for the ordering of Affairs and
Traflick relating to Merchants. The Law concerning
Merchants is called the Law Merchant from its univerfal
Concern, whereof all Nations do take fpecial Knowledge,
and the Common and Statute Laws of England take notice
of the Law Merchant, and leave the Caufes of Merchants
in many Inftances to their own peculiar Law. As in the
13 Ed. 4. 9, 10. A Merchant-Stranger made Suit before
the King's Privy Council, for certain Bails of Silk feloni- ^
oufly taken from him, wherein it was moved, that this Matr
ter fhould be determined at Common Law ; but the Lori
Chancellor anfwered, that this Suit is brought by a Merchant^
who is not bound to fue according to the Law of the Land,
nor to tarry the Tryal of twelve Men. And it was there
Jikewife refolved by all the Juflices, that, if the Merchan
dizes of fuch a Merchant-Stranger be fcolen and waved b
a Felon, the King himfelf fliall not have them as Waifs
otherwife of the Goods of a Common Perfon. Vid, 27 £J.
3. cap. 20.
In War, Merchants in an Enemy's Country are privi-
leged from any Violence to be offered them, Grot, dejure
helli i^ pacts ^ lib. 2. cap. 11. fe^. 12.
There are hkewife (for the Accommodation of Com-
merce and TrafFick) in all Countries, privileged Ships and
Boats fcrving t\\t Country or the Prince ; which have great
Prerogatives of being free of Impofls and Cuftoms, and
not fubjeft to Arrefts. And all Ships are fubjecl to thiljl
Service upon Commiand, and if they refufe, the Ships ardi
forfeited, by the Law Maritime., Lex Mercat. no, in.
If a Merchant commit any Offence, for which he is to be
amerced, this Amercement fliall be Salva Merchandizafua,
For that Trade and Traffick is the Livelihood of a Mer-
chant, and the Life of the Commonwealth, wherein the
King and everv Subject hath an Intereft. Magna Cbartay
fap, 14. 2 ////?. 28. ^y
HI
1
i
Chap. VII. Of^etCljauW* 491
By the Statute of the 5 H. 4. cap. 7. Merchants Alien
fhall be ufed in this Realm as Denizens be in others;
To call a Merchant Alien Bankrupt is adionable. Tarloot
tont' Morrifon. Tel. 198. i Bulft. 134.
A Man delivered Kerfies to be fold in Spain^ the Fadtor
fells to one who becomes a Bankrupt, and it is a Law in
Sfain, that if the Fa<5lor enter it before a Regifter, and had
^^ a Teftimonial, that he fhall be difcharged. And the Court
^^ faid we will judge here, that he fhall be difcharged. 2 Rolls
'"' Rep. 497. Caps and 'Tucker.
^j^' Debt upon a Bill by a Merchant to pay Foreign Coin
'amounting to fo much, to be paid upon the Feail of the
Purification called Candlemas -day. Upon non efi faUum
pleaded, Verdi^ for the Plaintiff. Moved in Arrefl of
Judgment, that the Declaration was not good, becaufe
Payment at Candlemas is not known in our Law ; yet the
Judgment was affirmed, for that amongfl Merchants fuch
Payment is known to be on the 20th o^ February^ and the
fudges ought to take notice of it, being ufed among Mer-
:hants, for the Maintenance of TrafHck, Tel. 135. i Brow,
103. Pernifon and Pountey\ Cafe.
XVI. /All other Subjects are reflrained to depart the J^y^r. 296.
R.eaim, to live out of the Realm, and out of the King's 37S-
Dbedience, if the King fo thinks fit \ but Merchants are
lot, for they may depart, and the fame is no Contempt,
^ Jiey being excepted out of the Statute of 5 i?. 2. cap. 2.
A.nd by the Comjnon Lazv they might pafs the Seas without
Licence, though not to merchandize.
XVII. It vv^as once conceived, that thofe Laws, which
were prohibitory againft Foreign Goods, did not bind a
Merchant-Stranger ; but it was ruled otherwife : For in the
, Leagues that are now eflablifhed between Nation and Na-
Jtion, the Laws of either Kingdom are excepted ; and there-
fore as the Engltjh in France., or in any other Nation in 19 ^' 7'
* Amity, are fubjed to the Laws of that Country where they ToTnlinfon qui
'Irefide ; fo mufl they of France^ or any other Country be/«^» 'verf.
^Ifubjedl to the Laws of England^ when Refident here ; and ^^^^p/^^Hale.
*l therefore if a Frenchman imports any Points, Laces, Belts, 35 ^//g,. ,•„
'Hats, and the like, they are forfeited. iiia Exchequer,
XVin . The marking of Goods is of a great Confequence,
as in relation to the fettling the Property of the Merchan-
dize in the right Owner , and in Courts of Juftice, both the
Civil
49^ ®f ^ercfiantss* Book
Civil Law and the Common Law hath a great Refpe
the fame, therefore the life has been, that every partlcu
Merchant hath his particular Mark appropriated to him-
by which means, if the Perfon is of any Value confiderabk
as in relation to Commerce, his Mark is prefently known.
The Catlers of Every Merchant is to fet down his Mark upon his Book!
Io«^o«dogive of Accompt, wherewith his Commodities are marked ;fo
to each Mem- Companies and Societies have their particular Mark : No '
laTMaTk, ^^ Merchant ought to ufe another Mark, without Leave firft
which cannot had of the Party whofe Mark the fame is -, for as Flacks are
be ufed or ap- the Enfigns that give Conufance of the Nation whofe Shipji"
propriate , ^^ ^ ^^ Marks are to afcertain the Owners of their Pm
without a par- J ' ^r^ t->. at '-''^"iru-
ticular Order perty. Without Contulion or Damage : And though to fei
and Leave of the Mark of another Man alters not the Property, yet jt^'
the Company ^^^ work fuch a Detriment as may be very mifchievous;
fo" other Com- ^"^ therefore by the Common Law of England^ ^^ J-S. fliall
panies, 2 Cro. maliciouily fet the Mark of J. D. upon his Goods, to the
fol. 471. Intent J, D. fhall or may be brought into any Trouble, or
put to any Damage or Charge, an Adion of the Cafe will y]
lie againft J. S.
Ld Raymond The Property of Goods is in the Perfon to whom the Bill
27i» of Lading is configned, and he may adign it over. Butif
the Bill be fpecial, as to deliver to A, to the Ufe of j5. the 1
Property is in B,
*ii
CHAP.
!
( 493 )
apv>«M4kMBaMs
'*i
CHAP. VIII.
I. TaElori^ their Salifications ge-
nerally confideredy in reference to
their Employment.
II. Of Commijfions, and the Words
in the fame y that qualify them in
their Employment.
III. Of CommiJJions to Favors that
limit their Anions.
IV. Of a Fa^or that deals for fe-
tveral Merchants, of the Ohliga-
tions that ohligey and not ohligCy
each other.
V. Of their Popery confidered in
reference to the difpenfing nvith the
Debtors of their Principals.
VI. Where the falfe Entry y or Vn-
faithfulnefs of the Fador fuhje^is
him to anfmjer Damage to his
Principal 'y and of the like com-
mitted by the Principal y nxjhere to
anfiuer to the FaSlor.
VII. Of Goods remitted to FaSlors,
and loji in their PoJfeJJiony *wha
hears the Misfortune.
VIII. Bills of Exchange dra^wn on
the Fa6lor by the Principal^ and.
accept edy hut before Day of Pay"
ment the Principal becomes Bank"
rupty ^whether the fame miijl he
paid.
IX. Of Freighting of Ships by a
Fador, twhere he is obliged to fee
the fame dif charged,
X. Of the general Rules to be ufed
touching the Confiru£lion of their
A£lions,
I. A F A C T O R is a Servant, created by a Merchant's
l\ Letters, and taketh a kind of Provifion called
Fadlorage, fuch Perfons are bound to anfwer the Lofs,
which happens by over-pafiing or exceeding their Commif-
fion j but a fimple Servant, or an Apprentice, can only
incur his Mafter's Difpleafure. The Spaniard hath a Pro-
verb, ^ien pajfa Commijion, pierde Provifion : He that
exceeds his Commijfion^ Jhall lofe his Fa5iorage. But Time
and Experience hath taught them to know better things ;
for now it is, Suholca la paga^ His Purfe muft pay for it.
The Gain of Factorage is certain, however the Succefs of
the Voyage proves ; and it is the Prudence of Merchants
to chufe honeft and induftrious Perfons, for otherwife the
Fadlor may grow rich, and the Merchant poor, the firft
being fure of his Reward, the latter uncertain of his Gain.
il. In Commillions they now generally infert thefe
Words : Bifpofe^ do,, and deal therein ,, as if it were your
own y by which the A6lions of the Fadlor are to be excufed^
though it turns to his Principal's Lofs, becaufe it" fhall be
prefumed
494 * 2Dfjfac?o?g* BooKin;'
prefnmed he did it for the beft, and according to his ]}k]
cretion. \
2 Fern. 117, He is barely a Truftee for his Principal ; therefore ifh*
'^'^'^r**' Principal, having Goods in his Hands, owes him Money
Tern. 6x2, ^y fnnple Contrad, and then dies indebted by Spedalt]
more than his Afiets are worth, the Fadtor cannot retain
the Goods. '
III. But bare CommifTion to a Faflor, to fell and dif.
pofe, will not enable him to truft, or give further Day of
Payment ; for in the due Execution of his Authority, he
ought on a Sale to receive quid pro quo^ and as he delivers
one to receive the other ; for otherwife by that means, as
they may truft fix Months, they may truft fixteen Years:
'Nor by the Virtue of that Claufe, of doing as if it were
7 Jac. B. R. their own^ may they truft out to an unreafonable Time, as
fon^^Sa(t^' ^^" ^^ twenty Years inftead of one, two or three Months,
^ofyJj. 5«//?. I . which is the cuftomary Time for the like Commodities:
fart. 103. And fo it was adjudged, where one had remitted Jewels to
Teh. 202. 2. J^is Fa6lor in Barbary^ who difpofed of the fame to MuU
' ' lejhack the Emperor, for a Sum certain to be paid at a time,
which being elapfed, the Fa6lor not obtaining it, was
forced to make the fame good to his Principal.
IV. Again, one and the fame Fa6lor may ad for feveral
Merchants, who muft run the joint Rifque of his Anions,
though they are mere Strangers to one another ; as if five
Merchants fhall remit to one Factor five diftindl Bales of 1
Goods, and the Fa6lor makes one joint Sale of them to one
Man, who is to pay one Moiety down, and the other at!
fix Months End \ if the Vendee breaks before the fecond*
Payment, each Man muft bear an equal Share of the Lofs,
and be contented to accept of their Dividend of the Money
advanced.
Salh 126. But if fuch a Fador draws a Bill of Exchange upon all
thofe 'ii'^t Merchants, and one of them accepts the fame,
the others ftiall not be obliged to make good the Payment.! I
^amen qii<£re de hoc. 11
Heath njerfus V. And as the Authority and Truft repofed in Factors isi]
7urner.Winch. Ytxy great, fo ought they to be provident in their A6tion»
^'^^ ^^' for the Benefit of their Principals ; and therefore if Fadors
Ihall give time to a Man for Payment of Monies contraded
on Sale of their Principals Goods, and after the Time is
elapfed, they Ihall fell Goods of their own to fuch Perfons
for
Chap, VIII. f)f ifaSEo^Sf; 495
for ready Cafh (leaving their Principals unreceived) and
then fuch Man break, and become infolvent, the Fadlor in
Equity and Honefly ought to make good the LofTes, for
they ought not to difpenfe with the Non-Payment of their
Principals Monies, after they become due, and procure
Payment of their own to another Man's Lofs 5 but by the
Laws of England they cannot be compelled.
VI. Yet if Goods are remitted to a Factor, and upon Le^ifon 'verftu
Arrival he fhall make a falfe Entry at the Cuftom-houfe, ^'"'^'^'F^'^y:
or land them without the Cullomer, whereby they fhali in- lan/^Kt^/
cur a Seizure or Forfeiture, whatfoever the Principal is en- 65,
damaged, he muft inevitably make good, nor will fuch
general Claufe help him as above : But if a Fadlor makes
his good Entry, according to the Envoice, or his Letter of
Advice, and it falls out the fame are miftaken, if the Goods
fliall be loft, yet the Factor is difcharged.
And as Fidelity, Diligence and Honefty are expe<5led
from the Fadlor, (o the Law requires the like from the
Principal, judging the A6t of one to be the A61 of the
other ', and therefore if a Merchant fhall remit counterfeit
Jewels to his Fadlor, who fells and difpofes them for valu-
able Confederations, as if they were right, if the Fadtor re-
ceives any Lofs or Prejudice thereby, by Imprifonment,
or other Punifhment, the Mafter fhall not only make good
the Damage to the Fadlor, but alfo render Satisfadlion to
the Party damnified : And fo it was adjudged, where one
How was pofTeffed of three counterfeit Jewels, and having
Fadors in Barhary^ and knowing one Southern^ a Mer-
chant, was Refident on the Place, configns thofe Jewels to
his Factor, who i-eceiving them, intreated Southern to fell
thofe Jewels for' him, telling him that they were good
Jewels ; whereupon Southern^ not knowing they were coun-
terfeit, fold them to the King of Barhary for eight hundred
Pounds (they being worth really but one hundred Pounds)
and delivered the Money to the Fa6lor, who remitted the
fame to How \ the King o^ Barhary not long after finding 2 Rolls ^.
himfejf cozened, committed Southern to Prifon till he repaid 2 Cro.^6%.
the eight hundred Pounds. Whereupon Southern coming ^6 1 2*
for England^ brought his Adion againft How^ and had popham. 143,
Judgment to recover his Damage ; for the Principal fhall not refolved
anfwer for his Fa6lor in all Cafes where he is privy to the "^ ^^^,^ ^°j^'
Ad or Wrong : And fo it is in Contrails, if a Fador fliall Jj^^/, ^,^^*
buy ,37. ' , '
I
•)
It
496 ©f JFa2(i?g* Book III.
buy Goods on the Account of the Principal ^efpecially iflie
has ufed fo to do) the Con trad of the Fadtor will oblige the
Principal to a Performance of the Bargain.
VII. When Fa6tors have obtained a Provenue or Profit
for their Principal, they mufl: be careful how they difpofc
of the fame, for without CommifTion or Order they muft
be refponfible. Goods remitted to Factors, ought in Ho-
nefty to be carefully prcferved, for the Trufl is great that
^ is repofed ; and therefore a pador robbed, in an Account
brought againil him by his Principal, the fame fhall dif-
• Southcote^ charge him *. And fo it is, if a Fa6tor buys Goods for
^^^'f'f' ^^^ Principal, which afterwards happens to be damnified,
4- j'^ ■ 4- ^.j^g Principal muft bear the Misfortune : But if a Factor
fhall difpofe of the Goods of his Principal, and take
Money that is falfe, he fhall there make good the Lofs ; yet
if he receives Monies, and afterwards the fame is by Edid
or Proclamation lefTened in Value, the Merchant, and not
the Faftor, muft there bear the Lofs.
Again, in Letters of Credit, the Fadlor muft befureto i|
fee, whether the CommifTion is for a Time certain, or to
fuch a Value, or not exceeding fuch a Sum, or general, in
which he muft have a careful Eye.
1 C^a. Ca. Where the Fadtor defrauds a State of the Cuftoms, which |
25. is there a capital Crime in the Fador, and a Forfeiture of
the Freight, he fhall have the Benefit of the faving.
1 Cha.Ca. 30. But if the Cuftoms were due to our King, he is bound to
difcover them on a Bill brought. ,
VIII. A Merchant remits Goods to his Fadlor, and about* '
a Month after draws a Bill on him, the Fadlor having Et-
fedls in his Flands, accepts the Bill, then the Principal
^are. If breaks, againft whom a CommifTion of Bankrupt is award-
noTrelievek ^^' ^"^ ^^^^ ^^'^^'^ ^" ^^^^ Fador's Hands are feized ; it has
i'uch Cafe. been conceived, tlie Fadlor muft anfwer the Bill notwith-
ftanding, and come in a Creditor for fo much as he was
enforced by reafon of his Acceptance to pay. '
IX. If a Fadlor enters into a Charter-party with a Mafler
for Freightment, the Contradl obliges him i but if he lades
aboard generally the Goods, the Principals and the Lading
are made liable, and not the Fadlor for the Freightment.
The Principal orders his Fadlor, that as foon as he hath
loaded (he having Monies in his Hand) to make an AfTu-
ranee on the Ship and Goods, if the Ship happens to mii-
carry
Chap. VIII. Of Jfa^OrS* 497
carry by the Cuflom of Merchants, he fhajl anfvver the
fame, if he hath negledted his Commiffioa ; fo it is, if he
having made an AfTurance, and Lofs hath occurred, he
ought not to make a Compofition without Orders from his
Principal.
X. Generally the Adlions of Fadors do depend on Buy-
ing, Selling, Freighting, and all other the Heads that have
been treated in the fecond Book, by which their Employ-
ment is univerfal in Matters Maritime and of Commerce ;
and the Queflions which would arife touching the fame, if
treated on, would be in infinitum : However, thefe are to
be the Standard Rules which fhould govern their Anions,
viz. Honefly, Faithfulnefs, Diligence, and obferving of
Commiflion, or Inflruftions, which being confidered, and
weighed by thofe that fhall be Judges of their Adions, a
right underftanding and determining of the Matters arifing
between them and their Principals, would foon be attained.
But thofe forts of Fadors that have w^anted thofe things,
feldom or never render any other Account, but long and
tedious Chancery-Suits, by which they not only have en-
damaged their very Trade, but feek to marry their Prin-
cipals to a double Afflidlion, by obliging them to fue either
a Beggar, or that which is worfe, a naughty Man.
On the other hand, Fadors that behave themfelves wor-
thily and prudently in the Service of their Principals ought,
after their tedious Service, to be numbered amongft thofe that
juftly challenge that worthy Denomination of Merchant :
And fuch was he who never made Breach of Commiflion.
in the Service of his Principal, but once ; th^t was, when
Wines were committed to him to difpofe of, but the Price
(by reafon of a Glut) fell. Advice being given to the Prin-
cipal of the fame, who immediately in PafCon writes to his
Fador to take a Hammer and knock out the Heads ; but
the Faflor confidering (that Leave muft be given to Lofers
to fpeak) knew better things, and kept the Goods, and
fold them for their full Value -, and when Accompts were
to be made, inftead of bringing to the Accompt of Wines,
their Heads knocked out per Order, worthily brought per
contra^ fold at their intrinfick Value. Such faithful Mini-
fters, I fay, juftly deferve that of our Saviour, PFell done^
&c. and to be m more called Fadlors, but Merchants.
I i CHAR
(498)
[■ S
C H A P. IX.
SDf tlje Min cf 33atute auo of Bation?.
\
I. Of the Variety and Contrariety of
human AHions, and from nvhunce
they fpring.
II. Of the Difficulties that happen
in the ohjiruSiing our Inquifttion in
finding that nxhich ii Iwwful,
III. Hutnan Laivs from nvhence they
foiv, and nvhercfore the Ldnxs cf
feature are above ours.
IV. No Man naturally more a
yuage than another cf Nature'' s
Laivs.
V. Nature'' s Laavs are infiitutedfor
inivard Goodnefs and Virtue^ but
State-Laivs for i^iet and Repofe.
VI. Of Punijhjmnt required by Kings
againjl thofe that <violaie the Laivs
cf Nature or Nations y though the
fame touch not them, nor their
SuhjedSy and of punifhing an
Equal.
VII. Of punijhln^ an Equal, <where
that Right fails y and the Reafont
of the fame. .
VIII. Subjeds ought not to feek Jui
Jiice in the ''Territory of another
Prince, hut in their omon, unlefi
the Defendant become Fugiti've.
IX. Of Kingdoms equal in Pou-er
cannot be commanded, but entreat'
ed may be, to execute the Judgment
of another by the Laiv of Nations.^
X. That fuch Ponver of executing
the Judgments or Decrees of any
Foreign Nation^ extends not (9
thofe of Life or Honour.
XI. Of executing the Judgmentt
given in a Kingdom ahfolute, in
another that is annexed by Con-
quefi ; and of the Difference of
that., and one by Union.
XII. Where that Right faih in
Plantations, and the Reafon of
the fame.
L T) LAIN Reafon fliews us, that Natural and Mathe-
JL^ matical Caules have more Certitude than Civil ; for
Nature is always uniform and alike in its Operations. Hence
Fire always burns, and never wets ; a Stone in the Air na-
turally tends downwards, and never flays in the middle. In
Mathematical Caufes, ordinarily the Forms are fuch, as
i^ave no middle interpofed, as between even and odd there
is no medium participatwnis •, between a right Line and a
crooked, there is no middle fort of Line j thus two and
two always make four. i\
^ hr (ju'id na- H. But civii and human A6lions proceeding from a mu-
j^;W^y?/7>jV table and various Principal (the \Vill*) cannot always be
quThenef-'^ alike Of Uniform : And befides the Will within, human
turidiim natw AdioHs without, are fubje6t to different Circumftances, and
iumfehabtnt, j-q infinite Encountcfs ; by reafon of which their exceflive
c'J/If! A?rr Nwi^^^er, they cannot be fgrrfsen while Men arc making
^W,.*i.s.' ., Laws:
Chai>. IX, ©f tljt lafcis of Batuce, &c. 499
Laws : Hence we may undcrftand, wherefore it is faid,
Omnis dejinitio injure eji periculofa -, and zhAtfiimjnumJus
at fome time may be found fumma Injuria ; as to render a
Man his Sword, when he is adually mad, ^c. And as
Circumftance hath Power to change the Matter, fo in the
Form of the Adion, it leaves in the middle a Latitude,
' Ibmetimes inclining to one Extreme, fometimes to an-
other.
For Example, betwixt that v^^hich by Precept we are
commanded ever to do, and that which we are commanded Non ideo id
»ever to do, is placed that which is lawful for us now and ^^"^\ '^'^'He,
then to do, or not to do, in Matters of our own Rio;ht, fo l'"fJ^P''"^j^*
rar as they leem expedient, or not expedient for us : Thus (that r due m
Joffph is called a juft Man, becaufe he thought of divorce- Law) quia
ing himlelf from Mary^ though upon Circumftances he ^^^^ 'vduu.
would not, ^c. But that which perplexes us all here is, f "!f pl^."'
that this hcitum leans fometim.es more to the one hand, chum in A-
fometimes more to the other, fometimes more to that which lexaadio.
is abfolutely bad ; from whence grow Scruples and Doubt-
ings, whether in fuch Twilight we really participate more of
Light than of Darknefs ; that is, more of good than of
bad.
III. Human Laws grow moil out of thefe middle t'hings,
e^ mediis Ucitis ; and upon right Examination we find, that
a Man hath nothing elfe to difpofe, for we (poor fubordi- ^Wqu'' ir.
nate VeiTels) cannot fo much as deliberate de ahfoluts debi- ^^'^*'"^-^-54-4-
//i, and abfrAute illicitis^ for they were in force before Man,
Prince or Peoule were in beinj;];* and God hlmfelf cannot Grotiusdeju-
now alter them, they flowing intrinfically, either from his ^^^^^^^^^-^^
Sanflity, Wifdom and Juflice, as he is a Creator and Go- §.14.
vernor ; or elfe they flow from Nature, whofe Rule (ac-
cording to God's making it by that which is in himfelf)
is right Reafon and Honefty. This Uprightnefs of Na-
ture, together v/ith that Obligation we have to be fubje(5h
to it, was not a Moment after us, arfid therefore we could
not determine any thing about it ; for which Caufe we have
not a legillative Power to alte** or diminifh any of Nature's
Laws.
IV. St. Paul tells us of thofe who^ without any After-
knowledge of God's revealed Will or Laws to Man^ were
£ondejnnable by thofe ef Nature aloyie in the punifhmg the
Breakers thereof. No Man is naturally more a Magiflrate
I i 2 than
500 ©r tljC Latog of Batntty Book III.
than another, otherwife what meant Cain, when after hii
Murder he cried, IVhoJoever Jh all find me^ will kill mef 1
V. And though human LaWs remember us of thofc things
yet it is not as if they gave their original and primary Force
of obHging ; yea, Reafon of State is not bufied fo much
about inward Piety and Virtue, as it is about publick Qui^t
and Repofe, or thofe A6lions which regard another Man's
receiving right or wrong : And hence it is, that great Pro-
digaUty is not fo feverely puniflied as a little Robbery ; and
that mains homo poteft ejj'e bonus Civis^ the Reafon is, be-
caufe though he may do himfelf Wrong in his own Rights,
yet he may always do other Men right in theirs -, neither is
• there any clear Reafon, wherefore thofe lefTer Sins and Im-
pieties fhould be punifhcd by any but God, who is wifcft
CO know them, jufbeft to weigh the Merit of them, and
power fulleil to punifh them.
This is the State of God's, and of Nature's Laws, to
which we are all equally obliged y but our floating and cir-
cumfcantiated Laws are only to give a Rule for an equal
and mutual Community in things, which God and Nature
gave us to difpofe of as we would ourfelves.
VI. Hence it is, that Kings, and fuch as have equal
Power with Kings, have a right to require Puniflimentj
not only for Injuries committed againft themfelves or their
Subjeds, but for them alfo that do not peculiarly touch
themielves ; as v/here Perfons commit Adlions in Violation
of the Law of Nature or of Nations, for the Liberty by
Grot'iusdeju- PunifLments to provide for human Society (as hath been
^Y^^lj^acP^- already mentioned) was in the Hand of every Man ; but
2V. ' * after Commonwealths and Courts of Juftice were ordained,
it refided in the Hands of the higheft Powers, not properly
as they are over others, hut as they are under none : For
Subje(flion to others has taken away that Right ; yea, fo
much more honeft it is to vindicate other Men's Injuries
than our. own, by hov/ much more it is to be feared, ^ac
a Man in his ovv'n, by too deep a Refentment, may either
exceed a Meafure, or at leaft infed his Mind ; however,
this Right of punifhing an Equal remains (lill in thofe Places
>yhere the People remain as in great Families, and not in
Cities, or under fome Government -, and therefore thofe
that have now PoffefTions of any Parts of the New World,
or American IQes, till they have either voluntarily fubmit-
ted
Chap. IX. aUtJ Of BattOttjS* 50 1
ted to a Government, or put them and their Dlfcovery into
the Hands or Protection of fome Prince that may exercife
Power, there ^remains the old and natural Right of punilh-
ing for Offences : So likewife v/here Perfons fliall be afiault-
ed by Pyrates on the Seas, if they be overcome, they may
be immediately executed by the Law of Nature ; for other-
wife there would be a Failure of Power to punifh fuch : v-je ChatTx.
Befides, the old natural Liberty remains in all Places where racy, §.i j,iz.
are no Judgments \ fo where they are taken and brought
to a Port, and the Judge openly refufes the Tryal of them,
or that the Tryal of tlfem cannot be had, without an ap- Up.extant.D,
parent Detriment and Lofs to the Captors, Jufliceinay be quod mnus,
done upon them by the Law of Nature.
VII. Two Pyrates refolving to affault and rob the next
VeiTel they meet with, (not knowing each others Condi-
tion or Defign) encounter, and the one happens to be over-
come by the other ; the Queftion is now, whether the above-
mentioned Right fo far remains, as that the ftronger may ^/ non reddit
execute him whom he hath overcome : Right Reafon die- fadendo quod
tates, that the Evil-doer may be punillied, not who fhould ^^^^^fy ^eddet
punifh him ; but that Nature fufficiently fheweth, that it '\^ debit Phrio. •
moil convenient to be done by him that is fuperior ; yet Peccare dum
doth it not demonflrate this to be neceffary,. except fupe- /^'^^^^'^» ^'^
rior be taken in that Senfe, that the Evil-doer be thought ^^^^^j^.^;^^^'
to have tnade himfelf thereby inferior to any other, and to
have it as it were degraded himfelf from the Order of Men
into the Nurfiber of Beads fubjedl to no Man, and fuch are
Pyrates, who have no other Denomination but Night-
wolves, or Beads of Prey. By Nature it is ordained, That
the better command the worfe : And Arijiotle faith. The Arifi. 7.
worfe are 'provided for the Ufe*of the better, as well in Na- Pol, 14.
iurals as in Artificials. It follows hence, that at leafl a
guilty Perfon ought not to be puniilied by another equally
guilty, to which Purpofe is that Saying of Chrift, Whofo^
iver of you is without Sin (that is fuch Sin) let him throw
the firft Stone. Pertinent is that faying. The Sentence can
■have no Authority^ where he that judgeth is to he condemned :
From whence it follows, that the right of punifhing in fuch
cafe, at fuch time ceafes.
VIII. On the other hand. Subjects that have jufl Caufe
of Adion, and inhabit under their own Sovereign, ought
not to wave his Juftice, and fly into the Territory of ano-
1 i 3 ther^
S02 €)f tt\z taW of Batute, Book in!
ther, but ought to feek it in their own, unlcfs the Defend-
ant becomes Fugitive. One Richard Hieron being a Mer-
chant of London^ and Liege-man of the King, and born
in England^ commenced a Suit againft J. Walden Major of
the Staple of Calis^ and other Merchants of the Staple, and
caufed them to be arrefted in Flanders in the Court of the
Duke of Burgundy^ held in Bruges^ for certain Injuries fup-
pofed by them to be made within the Jurifdidion of the
King of England at Calis^ and after the Defendants did ap-
peal to the Parliament at Paris^ and were there difmified
by a Judicial Sentence, for that the^" had no Cognizance of
Ground to inquire or examine Matters committed within the
Jurifdidion of the King of Eyigland^ and by his Subjeds
there inhabiting in a Foreign Court , the Record docs make
mention, that this was an Ad: io derogating from the Law,
i?tf/. Tarl and of fo high a Contempt, that it was ena(5led, ;©uc ti^ief UC
26 ^ci-d ^r* ?*^^^^^iV»nation iffera, \\xi tommaunnant a fttcccafar Con m't
ment //•/. Pre' t^d Hxtafm b'^uglcterce pec afcun matter timrminable
rogHiive,/^/. under the Jurifdi(5lion and Obedience of the King oi Eng-
*^^- land^ qu 'on ll aU juriftliction. The Judgment given
tiOmlUe \\ fcrra, ac* he fhalJ be put out of the Protedibn of
the King of England^ and forfeit all his Lands, Tenements,
Goods and Chatdcs, and that no Pardon fhall be to him
available.
IX. Yet Kingdoms which are equal in Power, and ha-
ving no Dependance on each other, cannot be commanded
nor corrected of another -, but if there be a Queftion, to
execute the Decree or Judgment of one in the Territory of
tlie other, there may iflue forth a Commiffion of Entreaty
undeF the Seal of that Court where the Judgment was given,
or at ieaft under the Great Seal of the Prince, directed to the
Judges in that Place where the Defendant is refident, and
<he Judge to whom the faid Commiflion is directed may
award Execution, according to the Laws of Nations : And
fo it was adjudged, where one having recovered a Debt be-
\ P.O. Ah. r 30. fore the Governor of Fnejfand, the Defendant upon that fled
I Le^. 267. foi- E^igland^ the Governor, at the Requeil of the Plaintiff,
I vtn "^'2 * ^^^^'^^ iorxh his CommifTion of Requefl, diredled Omnibus
z Keh. 511, Magijlratihus infra Regnum AngUa^ rogans^ to make Exe-
6»a cution of the faid Judgment ; upon which the Judge of the
Admiralty in England ifllred forth an Execudon of that
Sentence,
Chap. IX. aitH of Batiom^ 503
Sentence, and the Defendant was taken, upon which he 'v. Lord Ray-
brought his Habeas Corpus^ and adjudged the Sentence well ^"^"^^ ^ep-
executed by the Laws of Nations, and according to the ^^^' ^^
CsmmoH Law of this Realm.
So likewife, if a Dutchman takes up Goods at the Port
of London^ and gives a Note under his Hand for the Pay-
ment of the fame, and then flies into Holland^ the Vendor
may apply himfelf to the Lord-Mayor of London ; and upon
Proof of the Delivery, and the Sale of the Goods, th®
Lord-Mayor making a Certificate of the fame, and fending
it under the City-SeaJ, directed, as above, they of Holland
will and do execute the fame upon the Party,
Herein this kfl Cafe differs from the firft ; for by the
former, if there fhould fall a Queftion about the Interpre-
tation (5f the Judgment or Sentence, the fame cannot be
done, for they are not to examine the fame ; and the Rea-
fon is, left the Stranger be induced at another time to do
the like, and fo difiblve the Judgments whereof they fhould
demand the Execution, the which would be done more
through Jealoufy of the State, than for any Injuftice in
them : Befides, the Judgments or Sentences, which are
Matters of Record, and of the greateft Security in a King-
dom, the Prefumption that they were juftly given, iliall
always be underftood.
X. But in the latter, the fame may be examined, that
is, the Merchant may be heard as to his legal Defence,
either to the leffening or difcharging the Debt or Damage,
but againft the Teftimony certified, no Objeclion can be
made, but the fame is admitted, as legally proved.
But if there be a Queftion of Honour or Life, there they
may not execute the Judgments of Foreign Judges, efpeci-
ally if they have not known the Merit of the Caufes, or ^tcn
the Informations, or heard the Witnelles ; but more efpe-
cially in England^ for there can in no refpe6t whatfoever the
Life of a Man (let his Offence be never fo heinous) be
brought to Punilliment without a legal Tryal, * and that * Cok. 4. h-
by the producing of WitnefTes viva voce to his Face ; ^tx.fi^^-f°^' 3^'
Princes for the Refpe(5l they bear each other, and for the
good of Juftice, though they cannot at the bare Requeft of
the Judges of another Prince, put them to Death ; yet they
may for exemplary Puniftiments (which ought to be made
upon the Places where the Fad was committed) yield the
114 r^tijraA
504 0f tfie LatoS of I3atute, Book III}
F.oto de Jufl, natural Subjedl to his natural Prince, unlefs the Prince, to
^ *^^'5 ^' I* whom the Fugitive is fled, finds that he is unjuftly purfued ;
^Satius {udic'a- ^^r in fuch Cafes he is not bound to yield them -, yea, he is
miis ejfe paucos forbidden by the Law of God to reftore a Bond-man, which-
^liquos mala \^ flgj \^^q another Man's Houfe to avoid the Fury of his
viultiiudinem, XI. And as the fame is in Cafes Foreign, fo likewife in
Zonal as, thofe Eftates that are under the Crozvn of England-, and
P^fch' 24. therefore if a Man recovers againfl * J. S. in the King's^
in Hiiern. v'l - J^^^^^h in England^ and then the Defendant flies over into
ter Wat deixn^ Ireland, the Judgment may be certified over into the
^^^.^'- Chancery in Ireland, and they may by Mittiinus fend it into
the King s-Bench there, and they may award Execution, or
otherwife the Party may bring his Albion of Debt on the
fame ; fo the like has been done for Decrees given in the
Chancery in England, which have been exemplified under the
Great Seal, directed to the King's Lieutenant, for the put-
ting the fime in Execution there ; but in no Cafe a Judg-
ment given in England may be certified over under any
other Seal but that of the Great one.
Vide the .-&. But in Scotland it is otherwife ; for that is a Kingdom
of Parliament ^bfolute, and not like Ireland, which is a Crown annexed by
ot" EnolanP Conqucft, but the other is by Union •, and though they be
and Scotland. United under one Prince adfidem, yet their Laws are diftinft,
fo as if they had never been united •, and therefore the Exe-
cution of the Judgments in each other, mufl be done upon
Requeil, as above^ and that according to the Laws of
Nations.
XII. But Colonies or Plantations, which are reduced into
the Condition of great Families, have not this Right of Re-
* See Contra qucfling, for they are governed by the Laws * prefcribed by
2. ?. JV. 75. the Sovereign of the fame, who may fet Jurifdielions, and
f^'^/'-'^rT n:ake them Places privileged, not to have the Perfons at-
Laus with tached or arreftcd in any other Places, but vvithin their own
thcAi. Bounds, fo likevv^fe upon their firfl: forming or Inftitution,
may ^o declare, that for any Debt or Contrad: made or done
in any Place but in that ot the fame Plantation, they fhall
not be impleaded -, and therefore in Virginia at this Day, if
a Man contrads a Debt in England, and flies to the fame,
he cannot b>" there irriplcaded : But if a Man takes up Goods,
and carries the fame over thither, there he may be fued in
th.e Place -, io iikev;ile if it can be proved he carried over
the
Chap. IX. aittl Of I5atl0tti8» 505
the Money borrowed, and this amongfl others of the Laws
and Conftitutions of thofe Plantations^ is preferved invio-
lably, the fame being as it were a Pledge and general Safety,
which is given to thofe Inhabitants that fhall refort thither,
and there plant themfelves for the Good of the Place ; and
although thofe that thither fiy, by reafon of great and imre- ^
parable LofTes, have con traded Debts far beyond their
Abihty to fatlsfy, a Failure of which, in Striftnels of Law,
may (if the Creditor pleafes) oblige their Bodies to Impri-
fonment ; yet doth it not thence follow, that the fame ought
to be exacled ♦, for though the Body of Man may gratify
the Revenge of the Creditor, yet it never can pay the Debt ;
wherefore if thofe Ends by themfelves in a moral Eftima-
tion be not necelTary, or if other Ends on the oppofite Part
occur, not lefs profitable or neceflary, or if the Ends pro-
pofed by Imprifonment may be attained any other way, it
will then follow, that if there be nothing of Obligation on
the Debtor's Part, to render himfelf a Prifoner to the Cre-
ditor, that then if the fame can or may be avoided by flight,
the fame in Confcience may be done ; according to that of
Cicero^ It was not fit perhaps to difmifs him being brought to Ad^intum
Judgment^ but that he jhould be inquired after^ and brought ^^^^' i* 2U
to Judgment^ was not necejfary.
F IN I S.
T A B L E
O F T H E
PRINCIPAL MATTERS.
A
Book Chap. «.
BJURATION. ^^^ Exile.
Acceptance. See Bills of Exchange.
AccefTary.
I . Acceflbries to Piracy^ when to bepmijhed as Principals^ v i . 4. 2^
or noty 3 I. 4. 30.
Admiral and Admiralty. See Dominion of the Sea, Flag,
Mariners, Pymtes, Privateers, Prizes, Reprizals,
Ship-wreck.
I. 3. 6.
I. I. 24.
I. 2. 21.
I. 4- 32'
1. When entitled to the tenth Part of a Prize, k ^' '* '5
•^ c I. 2. 6
2 . IFhat Goods are to he deemed contraband^ or not,
3 . ^Lhe Admiralty jJo all try, whether a Ship he Prize or not,
4. Is to haz^e his Share of Prizes taken by Privateers, \ r
before they convert them to their own life, \ ^' ^'
5. Where the Jurifdiftion is concurrent, B.R. ought to-x
be well informed before they dif charge a Perfonfufpe£led C
of Piracy. What Regard had to Sentence there, J
6. y^ Warrant c//^^ Admiralty, «^ ^(5(7^ Juftification, ^^c. i. 4. 32.
7. Prohibidon to them for not allowing Plea tf/ Statute of}
Limitations, ' | • 4* d •
8. Has a Power to imprefs S\ivg%for Service^ 5 r ' S 61:
9. Alay imprefs Seamen, and why ^ | 'c> c> jq]
10.
Book
Chap. f.
I.
6.
5-
I.
6.
12,
2.
2.
2.
2;
3-
8.
I.
6.
12.
I.
6.
12.
I.
13-
26.
I.
13.
27-
/
THE TABLE.
to. Why the Admiral has a Tower of imprejfmg Ships.,
1 1 . Where the Trial of Contra5ls^ &cc. fhall he in the Ad-
^ miralty, and where at Common LaWy
12. The Admiralty has Jurifdi^fion ^/Flotfam,
13. An unjuji Sentence in the Admiralty, where no Caufe \
for a Prohibition. Other Cafes of Prohibition'^ )
14. Of Courts Martial in the Sea Service^ how held^ \
Adventurers. See Merchants.
Agents. See AmbafTadors.
Agriculture.
\, Agriculture and Tafture^ the two earliefi Arts^ I. i, ^^
Algier. See Pirates 5. 6.
Aliens.
See Cufloms 7. Subfidies, Tryals, 4, &c^
J. Who is an Alien by the Law of England ? \ %
2. Whether he can pur chafe Lands ^ and to what Pur- 1 3-
pofes? J 3-
3. His Tffue Hot inheritable to him in England, 3.
4. How the Laws of Bef cents differ in fever d Countries ^ 3.
^. The Rules of Def cents lineal and collateral by the Law 1
^/England, . 3 ^'
6. In what Cafes an Impediment in an Anc eft or fhall hinder a ^
Defcent^ or not^
*j. ^ Where Iffue of Englifhmen, though born beyond Sea^
fhall not be accounted Aliens \ and of other Perfons born^
$ut of the King^s Dominions ^
I.
8.
2.
I.
2.
I.
2.
2.
2.
2.
2.
3-
2.
4-
2.
5-
2.
6.
2,
8.
3-
3.
3.
12.
I.
s.
2.
I.
2..
7'
2.
9-
3-
4.
3-
5-
THE TABLE.
Book
3
3
3
3
3
3
3
3
3
3
3
3
3-
3-
3-
3-
^. Whether Aliens may maintain real and perfonal A5i.
and in what Cafes^
9. T^he King^ when and by what Means int tiled to the Lands y )
&c. purchafed by an Alien^ \
10. 'The Copyhold of an Alien not given to the King^
1 1 . Some Cafes relating to Aliens y
12. 'The Effe5ls of Naturalization ^ \
1 ^ . Naturalization not compleat without an AB of Parliament ^
14. The Nature of the Union of Ireland to England,
i^. Whether a Perfon naturalized in Ireland be thereby na- 7
turalized in England, 3
1 6. Of Rights which a conquered Country may lofe or \
enjoy by Permiffion of the Conqueror, 5
1 7. The Condition of the People <?/ Ireland before Henry II. 1
and his Alterations, \
1%. How Aliens are treated in France with refpe6l to the \
Succeffion to their Goods, V
19. How the Jews {with refpeEl to their Succeffion) were 1
treated formerly, and now. See Jews, J
to. The Natives of Countries formerly (but not now) in
Poffeffon of the Crown ^/England, are Aliens \ other-
wife ufed in France,
2 1 . Denization is by Letters Patents \ its Effects are im- 1
perfe5i, J
22. Whether and in what Cafe an Alien may be capable of\
Bower in England. A Jew cannot, 5
t^, A Denizen by Patent is not capable of Honour in England, 3
24. An Alien may be a Witnef \ an Infidel may bring anl 2
A^ion, 3
2 5 . How an Alien may have or lofe the Benefit of the King^s 1
general Pardon, S
Alliances. See Leagues, Treaties.
AmbafTadors.
«
1. Exempted frtim Reprizals, !•
2, Their Furi5fions^ and how they differ from Agents, i.
3^ 'Divided into ordinary and extraordinary -, how thefe differ y i.
Chap d ,
2. 10.
2.
2.
2.
2,
2.
2.
3-
3-
3.
3-
3-
3-
3-
3-
3-
3-
3«
3-
3.
3-
3-
2. it
10. I-
4'
THE TABLE.
Book
4. Salifications requifite in Amhajfadors^
5. None but Sovereign Princes can fend Amhajfadors ; -^
Viceroys cannot ; hut the Ele5fors^ &c. of Germany C
do^ i
6. Ambaffadors prote5fed by the Laws Divine^ and of\
Nations \ to whom extended, 5
7. Being warned not to come^ they are treated as Enemies o
hut if fafe Condu^ granted, are protected even among >
Enemies, ^
8. ^he Degree of the Crime of violating their Privileges,
9. Caufesfor which States may reafonahly refufe to receive them,
10. Whether they he punifhahle, if they offend againjl they^
Laws of Nations, \
1 1 . When they commit againfi the State with whom they 1
r eftde, whether funifhaMe \ andwho is their pr of er Judge, 5
12. I^he Reafons of their Privilege, and Cafes in which it }
hath been difallowed, 5
13. Whether privileged in Countries thro^ which they pafs 7
without Leav£, 3
14. Method by the Laws of England of proceeding againfi: 1
Ambaffador* s offending, %
15. Not puniflmble where he refides, for an Offence heing't '
onlyM.d\um Prohibitum. Secus on importing prohibited >^
Goods, ^
1 6. The Nature of their Office in Gvil Matters, for their 7
Prince and his 'Subjects, >
17. Whether his Houfe a San£fuary, and whether he has 7
Jurifdi^ion over his own Family, J
18. Whether his Goods liable to Seizure for his Debts. \
The Remedy againfi him for his Debts, $
19. Where they may forfeit their Privilege by committing!
an Outrage, S
20. Offenders to be punifhed for Violence offered to them,
2 1 . Condu5i of the Venetians with refpe£i to their Ambaf- }
fadors, 3
22. By whom introduced by the Law of Nations^
23. Violating them, ajufi Caufe of War y
Ambition.
I. Ambition deflru^ive of Concord among Men^
Chap.§.
10. 5.
10. 4r
10- 5*
10. 6.
10. G.
10* 7.
10. 8.
10. 10.
10, 9.
10. 10.
10. 10.
10. 10.
10. II.
10. 12.
10. 13.
10. 14.
la 15.
10. 1 6.
10. 17.
10. i8*
10. 19.
10. ao.
10. 21*
I. I. 3.
Androlepfia,
\
THE TABLE.
Book Chap.j!
Androlfepfia.
2. J
I. What it was f - - - j i- 2. iJ
Appeal.
I. Where not io Jlay Execution^ - - - i.
'• AiTurances.
1. me Nature of Affurances^ -. - - - 2.
2. By whomfrji invented^ - - - - 2.
3. EftaMiJhed by A^ of Parliament^ - - - . 2.
4. Various Kinds of Affurances^ and on what Goods ^ &c. 2.
5. 0/ dangerous Affurances^ loft or not loft, ^c. and of\
fraudulent^ Sec. 5 * '
6. Premium, when received -, mijlaken Payment refunded^ 2. 7
7. 'The Extent of Affurances in Modern Pra5iice^ - 2. 7
8. Affuriug the Ship^ whether it includes the Cargo ? Whe-^
ther neceffary to name all the particular Wares in the >^ 2. 7
Policy P J
C 2. 7
9. Some Cafes of Affurancesy - - - - *) 2. 7
C 2. 7
2. 7
2. 7
0. /Fi&^» /i>^ P^//ry /j difcharged by Deviation ? - j
1 . Whether Affurers liable for Goods removed from Ship tol r^ ^
Ship, ^ - - - - i '
i . Of enfuring more than Value \ and ufurious Agree- \ ^ 7
ments, Affy.rance Inter eft or no Inter eft ^ - J
3. Warranted to depart with Convoy^ how fulfilled^ 2. 7
4. Where altering the Property of the Goods will dif- ^
charge the Enfurers^ - - - 3 *
5. Ti(?^ Danger of leaving Blanks in Policies^ - 2. 7
6. Taking by Pirates is a Peril of the Seas, - 2. 7
7. TZ'^ £^^^7 ^//i?^ Enfured^s Renunciation of the Lading \
after a Lofs^ -«^. _ _5''
%. Enfurers^ whether to anfwer for prohibited Goods feized) 2. 7
9. ^;7/; c^ Lading ufeful in AJfurances^. to futle Difputes^ 2. 7
5.
6.
7-
9*
12.
15.1
5''
10.
Ill
12.
14.
15.
Attainder,
THE TABLE.
Attainder. See Pirates 31.
Average. See Coiitributioa.
Book Chap, f .
i. Average defer ibed^ - - - - - 2. 6. 4.
2. Petty Aver age y what^ - - - - :2.^. 6.
Amity. See Piracy.
B
B.
AIL. See Bills of Exchange.
Ballaft. See Ships 22.
Barratry. See Mariners, Mailers.
I, ^bat Offence of the Majier of a Ship may be Piracy^ or 1
Felony^ ox not^ - - - - - J i- 4- i?-
Bills of Exchange. See Exchange.
1. Bill of Exchange^ what it is ^ and by whom drawn ^ 2. 10. i^.,
2. Generally two or more drawn^ and how ? to he judged j
by the Cufiom of Merchants^ - - ^ 2. 10. 14.
2. 10. 15.
3. T!o be prefented and accepted ; what is an Acceptance
and by whom ? on Refufal^ to be protefted^
4. Whether indeb. Affumpfit lies upon a general Accept am e^ '2, 10. 15.
^. Method of protefting inland Bills prefcribed by Statutes :l 2. 10. 15.
Difference between them and Foreign Bills, - f 2. 10. 17.
6. A5ii0ns on them^ how to be brought, - - 2. 10. 15.
7. All the Drawers liable in cafe of a Protefi, - 2. 10. i&.
5. Whether the Perfon, to whom payable, mufi procure an-h 2. 10. 16.
Acceptance, - - - - - - J 2. 10. 17.
r 2. 10. 17,
9. ne Nature of a Ptotejl ; its life and Effe5fs ; where \ 2. 10. 31.
neceffary or not, - - - | 2. 10. 32.
L 2. 10. 35.
10. Bills drawn on two, how to b-e accepted, - 7 />' r^* on*
Hi
THE TABLE.
Book Chap, j
11. Where a Bill drawn by a Fa 51 or of a Company^ andy^ 2. 10. iq
accepted by a Member y Jhall bind the Company or noty J 2. 10. 5c
12. A Bill 7nay be accepted for Party - - - 2. 10. ai]
13. Bills accepted for the Honour of the Drawer oblige S ^* ^^' 21I
they are to be protect edy and how ? . - - - 1 • ' Q- 2^J
14. TFhen and how Countermands may he made ? - 2.10. 22.
15. Drawer and Accept or y to whom bound ? - 2. 10. 22J
1 6. Collateral Security after the 'Time of Payment elapfedy 7
how given, and its Effect ? - - - j . 0. 2^
1 7. Where the Bill and Protejl are both to be remitted or} |
noty and why ? - - - 5 • • 5^
18. What is to be done in cafe of a Bill lofiy - ■{ ' * /i,
•^ -^ -^ ' € 2. 10. 26.11,
19. Of Blank EndorfementSy their Validity y - 2. 10. 27.1'
20. Bills of ExchangCy not revocable by the Acceptor y - 2. 10. 28.
21. A Bill may be accepted to be paid at a longer time than 7 «
it .was drawn for y - - - J * * 'I I
£2. Bills y at what time to be protejled for Non-Pay-Y 2. 10. 30.
fnenty - - - - 5 2. 10. 31.
23. Where the Acceptor becomes infolvent before the Day ofi
Payment y a Proteji ought to go, - - - . J * ' 3 *
24. Where paid too early, and the Party breaks, the Mo- 1 2. 10. 32.
ney payable over again, - - * - 5 2. 10. 37. '
25. What to be done, where the Acceptor is ready to pay, 1
but the Holder of the Bill is. dead -, and vice verfa, J * ''*
26. Of Exchange by way of Letters of Credit : The Sorts } ^
and Frame of themy - - - j • • :) ' .
27. Letters of Advice to be obfervedy - - 2. lo. 3^
28. Bills and Notes affignable over, and how ? Felony to} gj.
forge them or the Affignmenty &c. - - > * 1
29. Whether it be necejfary to aver that the Defendant is}
a Merchant \ in Cafe on the Ctifiom of Merchant Sy Sec. > * ' "^"/l
Bills of Lading. See AiTurances 19. Merchants 34.
Boats. 6"^^ Ships 20, 21.
Bondage. Se^ Freedom.
Bottomry. See Money.
I . A wide Difference between Moriey lent for Commerce on}^ 2 . 11. ^•
Landy and that which is lent for the Sea^ - i 2. 11. 12.
2. In
THE TABLE.
Book Chap. §
2. In Loans hy way of Bottomry^ at the Times different i
Centrals have their Inceptions^ - - J • • 9
3. In which Cafes the Lender^ and in which the Borrower^ -y
is to bear the whole or Jpart of the Lofs. The Money L ^' ^^' ^
i lojl hy Deviation^ - - - j ' *
4. In what Cafe the Mafier to hind his Owners^ and i^j ^
what Cafe fome of the Owners to hind the reft \ may take C ^ * ^
up Money on Bottomry^ - - - 3 * °
5. The Etymology of the IVordy the Nature and Ufeofthei ^ ^ ^ ^ ^
Things - - - S ' '
6. Bottomry allowed hy all Maritime Countries, - 2. 11. 13
7. A fictitious Bottomry is unconfcionahle j yet has had ^ } *
Judgment in Favour of it, - - - - J • • 0
S. The Gain and Rifque ought to hear a Pnportim to each \
Other, - - - 3 ^
9. Ufura Marina, what, arid whether lawful ? - 2. 11. 15
10. Of Ufufru£is, or Money advanced into the Stock of Com- j ^
panies, - - - - 3 * * '
Britifh Seas. See Dominion, Flag, Seas.
Butlerage.
1. What it is, and iy whom paid, cr not, - 2. 8. 8.
2. P erf on free of it, not to cuftom the Wines of Perfons J 2 S 8
unfree, - - - 3
3. When it becomes due, - - - 2. 8. 9.
4. Not difcharged by a Grant to he free of all Cufioms and 1 ^ 810
^ Impofitions, - - - 3 * *
c
C
A P E R S. See Privateers.
Captains. See Commanders.
Caption and Captors. See Privateers, Prizes, War.
I. What fhall he faid a legal Caption, - - i. i. 15.
r I. I. 18.
1. What Things taken from an Enemy, become the Captor"* s, < i. i. 20.
t I. 13. 10.
K k 3- ^^^:
6
THE TABLE.
Book Chapj
3. Whether any and what Goods of a neutral Power may > i. i.
' become the Captor's ? - - - J i. i.
/i^. Who Jhall JJoare the Spoil of Prize Ships^ - - i. 2.22]
5. Where Captors may not hold the Capture^ and yet are )
not Pirates, - - - - - - J i- 2. 24.
6. Captors ought to exhibit Ship-Papers, &c. - i. 2. 25,
.7. Captors are to get Prizes condemned, and pay the Ad'-\
miral his Share before they convert them to their ownv i. 3, 5
Vfe, .... J
8. Where Captors may funifl) Pirates without Trial, -\ ' ^' '^'i
Chartcr-Party. I
1. What it is ^ its ufual Content Sy - - - -j 2. 4. 4.
C 2. 4. S.
f 2. 4. 4.
2. //(J'k; conflrued, as alfo parol Agreements \ they muji be] 2. 4. 8. J
regularly pleaded^ - - - J 2. 4. i5.
(. 2- 4- I?'
3 . Whether the Contra^ be deftroyed by the Ship*s being 1
taken and retaken in War^ - - 5 * **!•
4. Where the mutual Covenants fhall not be pleaded in Bar \
cf each other, - - . J 2. 4. 17.
^ Cinque- Ports. See Prifage r.
Clergy. See Pirates.
Commanders. See Flag, Manners, Prizes, Privateers,
Ships, Spies, War.
1 . ^he Benefits arifing to a State from its having good Com- 1
manders, - - - - j • 3*
2 . What ^lalities endear Commanders to the Soldiers and 1 «
Mariners, - - - - J i- ^3* •
3. Good Commanders ought not to be too readily flighted by ^
their Sovereigns, nor Complaints againft them too much? -i. 13. 3*
41
favoured,
, They ougi
■ Prizes^ - - - ^ - J I. 13
4. They ought to preferve and exhibit the Writings taken in\ i» 2 . 25.
3 I. IV 9-
5
."Iht
THE TABLE.
Book Chap. 5.
5. ^he Difference {as to Adjudication) between Ships yield- 1
ing voluntarily y and thofe taken in Fight ^ - j i • 1 3 . i o.
6. How the Crews^ &c. are to be treated^ where Ships ^
yield without fighting \ and whether in Cafe of fightingS i. 13. 12.'
Sluarter to be given^ - - j
7. Fire-Ships^ how treated}, their Crews ^ &c. to havei ,
no garter, - - - - 5 ^- '3- 12.
8. «S^//>j <?/ IVar^ how to prepare for Fight ? whether they j
may be yielded •, or being overpower ed^ accept of ^ar- f i. 13. 13.
ier ? the Effe^ of garter given^ - - - 1
9. Orders are to be obeyed with great Stri^nefs, Difobe- j
dience to be feverely puni/hedj - - Ji-i3*i4«
10. Cowards in Fight, to be puni/hed with Death. ACom-i
mander in Chief ought not to expo fe his F erf on ^ - \ ^ 6* "^o*
11. garter ^ when to be given, or not, - - \ ^•^3'i3'
c I- 13- 15.
12. iS^/^j, &c. ^r^ mutually to affift each other : Of Con- 1 -
voys, and the Prote^ion due from them, - J i. 13. 10.
13. Of Purfuity and Slaughter after a Fi^ory, - i. 13, 17.
14. ^ho ought to be exempted from Slaughter, in Towns, \
&c. taken by Affault, J i- ^S- i^*
15. Whether, and in what Cafes, Hofiages may be put to \
Death, J I. 13. 18.
16. Mutiny, what-, and how punijhed, - - < ^-^^'^P-
c I. i^, 23.
1 7. Whether it be lawful to caufe Enemies to defer t their 7
Sovereign? Deferters, howpunifhed? - - j1.13.20.
18. Spies, their Ufe ', howpunifhed? - - - S ^' ^Z- 7*
19. Di fob eying or rejifiing Officers, how punifhed? - i. 13. 22.
20. Great Care to be taken that Ships be not loft. Ma- 1
gazines, &c. not to be deftroyed, - - - J^'^3*24.
21. Of Courts-Martial in the Sea-Service, how appoint'! i. 13. 26.
^^ ? ^/ 'k;Z?c7;2 to conjift ; "^^^/^ ^i??^ what triable by thera ; J i . 13. 27.
22. Good Pay and good Visuals neceffary to the Sea-Service, i. 13. 28.,
23. A Rapfody on 'Triumphs, - -, - - 1.13.29.
Commerce. See Bottomry. Merchants. Money.
I. Commerce fupplies the Place of a natural Community of\
/->, J V2.II.I.
Goods, " - - ■ ■ ^
K k 2 ~ CommifTion.
THE TABLE.
CommifTion. See Fa6lors.
Commonwealth or State.
Book Chap, jj
1. lis Marks, and conftituent Parts^ - - i. 4. g.
2. Pirates, 7iot a Commonwealth, - - i. 4. ^^
Communion of Goods. See Dominion.
Companies. See Merchants.
Condufl. See Merchants.
Contraband Goods.
1. Furnijhed to an Enemy, and no 'Denunciation of War, \
how the other Party may aEi ? - - - j • i« 20. |
2, What Goods fhall or Jhall not he deemed contraband, \ ^' ^' '^^^
Contradls. See Treaties.
1 . When triable in the Admiralty, and when at the Common 7 ^ i
Law, - - - _ J I. 6. 12. *
2. Whether the Contra5ls of Princes may be avoided for \
Force or Fear ? - - - _ J i» 0. 8.
Contribution. See Pirates 7. Wreck.
1. Whether Contribution ?nay be had in Cafe of Reprizals\ i. 2. 27.
fuffered, - - - - 3 i. 2. 28.
2. Contribution for Redemption, when cognizable in the\
Admiralty, - - - - J i. 6. 12.
ci. Is a principal Matter in Leazues, and is hard to rem- 1
late, - . - - . M '• 7- 19-
4. Whether a Neuter may pay Contribution to one of the \ ^' ^^' ^'
Parties at War ? - , . ) ^^
C I. 12. 9.
5. Whether Neuter can be effe5fually inter diiied by their \ i. 12. 10.
Prince jrom paying Contribution ? - J i. 12. 12.
6. ^/^^^
12. Cafes in which there Jhall be no Average^ or the Lofi
to he paid by the Mafter, - - - -
T H E T A B L E,
Book Chap. 5*
2. 6. 4.
2. 6. 6.
6. ^i^^/ Goods Jhall come into Average^ or not, and) 2. 6. 8.
how ? - - - - 2. 6. 14.
2. 6. 15.
2. 6. 1 5,
7. «S'^W2^ i^«/^j concerning Contribution, - - 2. 6. 4.
8. In what Cafes the Ship* s Apparel jnay he within Ave- \ 2. 6. 6.
r^^<f, or not, - - - 3 2. 6. 12.
9. 516^ Refidue of the Cargo is tacitly obliged to Contribu- 7 ,
//(?;/, ^;/i -k;^!?;/, - - - _ J • • /•
10. In what Cafe both Ship and Lading may be liable to} ,
the Average, - - - J 2. 6. 9.
11. Whether Average or not, where two Ships encounter} 2. 6. 10.
by Misfortune? - - - - 3 2. 9. 7.
6. II.
6. 12.
6. 15.
13. iVi? Contribution but where the Ship arrives in Safety, 2. 6. 12.
14. Where the Ship and hading flo all contribute to redeem 11. 4. 6.
the Mafier or Mate, - - - - - J 2. 6. 13.
15. Contribution or not, where Tart loft by Pirates, or an\ 2. 6. 13,
Enemy, - - - - - 3 2. 7. 14.
16. When Contribution fhall be made for Pilotage, - 2. 6, i§.
17. By whom born to redeem Goods from a Pirate, - 2. 7. 14.
1 8. Whether the Mafter fhall anfwer, or a Contribution \
be, for Lofs fujiained in Goods wafiing? - 3 ' ^*
Convoys. 6"^^ Commanders 12.
Corruption of Blood. See Pirates 31.
Coiinterband. See Pirates.
Countermand. See Contraband.
Courts Martial. See Commanders 21.
Cufloms. See Excife. Subfidies.
I. Whether Impofitions may be laid without Authority of} 2. 12. iJ
Parliament^ - - - - J 2. 12. 3.
K k 3 2. ImpO'
THE TABLE.
Book Chap. §.
2 . Lnpnfitiom laid by Con fen t of the Merchants only^ are ^oty^
lawful^ - - - - - - " J*-.
3. "The Hifiory of the Privilege of the Hanfe Towns, - 2. 12. 4.
4. T^he Antiquity of Cufiomers or Publicans, Good Advice \
to them^ - - - - - - -J*'^*
5. Cufioms defined. Magna Cuftumse, what^ and ^^? j ,2 ^
what Caufes due^ - - - \.'- _ 3 ' * *
6. Parva Cuiluma, w^^/, and by whom payable. Cafes ^ 2. 12* 7.
thereupon^ - - - - 32, 13. 6.
7. Liberties granted to Merchants-Strangers by Charter. \
Medietas Linguse, - - - j • • /•
8. One Weight and Meafure thro"* the Kingdom ena5fed^ 2. 12. 7,
9. Wines not to be eixported without Licence, Not Law^
at this Day, - - - j • • 7-
ID. Duties on Goods exported^ - - - 1 «* '
-^ ' t 2. 13. 10.
11. Foreign Coin^ Bullion^ Diamonds^ &c. ^^j he esc-y^
ported Duty free,, - - - - | 2. 13. ic.
12. Spices^ who may import them, - -
13. Fees to the Officers how regulated ? when to he half ^
only^ and when not to hepaid^ - - -
14. Merchants may break Bulk in the Ports allowed by ^
Law,, and pay Cuflom only for what Goods they land,, \ ' ^5* ^•
15. On what Goods, and upon what Terms ^ Drawbacks of^ 2. 15. 2.
the Cufioms are allozved, - - 5" 2. 15. 7,
16. A Provifton {now obfolete) concerning Compofitions with \
the Farmers of the Cufioms, - - j ^* ^5* o*
17. What Drawback allowed on Exportation of Wines ^ 2. 15. 4.
18. Foreign Wool, upon what Terfns exported, - 2. 15. 5.
19. Drawback on the Exportation of Currants, - 2. 15. 6.
20. What Goods exported, not to pay Cufioms y - 2. 15. 7.
21. Allowance for Leakage of Wines, - - - 2. 15. 8.
22. What fh all be accounted Leakage, - - - 2. 15. 9.
23. /F'i'/^/ Allowance on unmerchantable Wines, - 2. 15. 10.
24. ^F/?^/ /^ he done in the Cafe of other unmerchantable i
Goods, . . - j 2. 15. II.
25. Where Strangers fhall pay double Cuflom, - 2. 15. 12,
2 6. Where, when, and before whom. Merchants may un- 7
lade in the Port of London. See^oxlSy - 3 ^' ^^* '^•-
27. What
THE TABLE.
27. What Allowance made upon the Northern Cloths
28. fFhat Allowance made upon the Weft em Cloths ^
29. Allowance on Woollens exported^ - - -
30. Allowance of 5 1. per Cent, upon the Suhjidy ofPoun- 1
dage of all other Goods ^ - - J
3 1 . ^he Officers^ what Attmdance they are to give^
32. "l^he Duty of Officers in difpatching the Merchants, 7
Extortion in them or their Clerks prohibit ed^ - 3
^^, Afaving for Duties to the City ^/London,
34. 'The like for other Corporations^ - - -
Q^c^, Regulation for fe arching Ships outward hound. The \
Penalty of Abufe therein^ - " - 3
^6. Timber^ how rat ed^ and to pay ^ . . •
37, Officers required to make Allowances,
^'^, Where Goods loft at Sea, the like ^antity to be ex- 1
ported Duty free, - - - J
39. Ships of War may be fearched : Penalty on Smuggling,
40. On Allowance for damaged Goods, the Merchant is 1
not to export lefs than is contained in the Certificate, \
Book
2.
2.
2.
2.
2.
2.
2.
2.
2.
Chap. §
15
15-
15'
15-
15'
15-
2. 15,
2.
2.
2.
2.
2.
15'
15-
15-
15-
14.
15"
16.
17'
18,
19.
24.
20,
21,
22.
26.
27.
28,
29,
D
D.
EL AY of Juftice. See Juflice.
Demorage. See Charter-Party 4. Wreck.
Denial of Juftice. See Juftice.
Denization. Denizen. See Aliens.
Denunciation of War. See War.
1 . The Forms ufed by fever al Nations,
2. May be conditional or abfolute, - - -
3. Why ufed by Nations,
Deodand. See Owners 13.
Derelidtion.
I. What it is, and what neceffary to it, - «
K k 4
I.
I.
].
\
I. 21.
I. 21.
I. 23.
2. 5. 4.
2. 6. 16,
Dcfcents.
THE TABLE.
Defcents. See Aliens.
Book Chap.
Defertion. See Commanders 1 7. Mariners.
Deviation. cS"^^ Freight 12. Maflers 3. 16.
Dominion. See Mariner's Property, Seas, Ships, War,
1. Of DomtTiion in the primitive State of Man^ or imiver- }
fal Dominion^ __-_.. 5
2. Whether univerfal Dominion might have continued? -
3. Of the Caufes which changed univerfal Dominion ^ -
4. ^he Growth of private Propriety^ - - -
5. /;/ the Laws of Dominion extream Neceffity feems excepted^
6. Whether any and what fort of War may change Domi- \
nion F See War. - - - - 3
7. Dominion is eflahliped by Law and Ufe^
8. Dominion of the King of England in the Britifh Seas^ \
9. The Dominion of the Sea provided for by Treaties^ -
10. The Effe^s of the King^s Dominion of the Britifh Seas^
1 1 . The Importance of the Flag^ and Dominion of the \
Britifh Seas^ - - - - . • j
Dower. See Aliens.
■■\ 2
0
0
i
»
"\
I. I.
I.
I. 4.
2.,
I. 4.
3.
I. 4.
3-
I. I.
4-
I. I.
5-
I. I.
10^
I. 4.
II.
I. 5.
I.
I. 5.
9-
I. 5.
I?-
I. 5.
12.
I. 5.
1.5-
E
E.
AST-INDIA Company.
I. A Cafe relating to their exclufive Charter^ before the \
A^s of Parliament in thcfr Favour^ - - J ^ *
Ecclefiafticks. 6"^^ Reprizals 18.
Embargo. See Maflers 6.
Enemies.
tl Wl>ere they way be attacked ^ or not.
6. I2t
I. I. i5.it
2. The
T H E T A B L E.
Book Chap. §,
2. 'The SubjeBs of an Enem}\ how treated in England at i
the breaking out of a War^ - - - J • • ^ 7*
2. What things taken from an Enemy will belong to the \
Captor, - - - • - J ^- ^- ^^•
4. The Goods of Enemies may be fpoiledy - - i. i. 19.
5. Where neutral Powers furnifh Contraband Goods to one'%
Party, and no Denunciation of War, what may the other > i . 1.20.
Party do? - ' - - 3
6! He is my Enemy who fupplies my Enemy with warlike 1 i. i. 24.
Neceffaries, - . - - 3 i. 13. 8.
7. Where they are not Pirates^ though they rob with Pirates, i . 4. 10.
^, The Crimes of correfponding and relieving Enemies, and 1 i. 13. 7.
the Punifhment, - - - 31. 13. 8.
9* Of giving and taking garter ^ - - - 5^'^^*^3-
10. Whether it be right to caufe Enemies to defer t their "i
Prince, or to furrender his Forts or Ships, - 3 * ^' ^^'
11. An Enemy cannot be guilty of Treafon, - - 3» 4. 6.
England. ^S^^ Seas.
I. Our Kinz^s Dominion in the Bnti^ Seas, - - C i- 4- u.
^ t I. 5. I.
JE. 7>^^ Antiquity of the King's Dominion in the Britilli j
Seas, - - , - - I ^* 5^ 7-
Enmity. See Enemies, Pyrates, War.
Exchange. See Bills of Exchange.
1. Its Antiquity among the Hebrews, - - -
2 . among the Romans, and its life,
3. among other Nations, -^
4. The fever al forts of Exchanges, - -
5. Of Cambio commune, - _ . -
6. 0/ Cambio r^<3/, or Value for Value,
7. Of dry Exchange or U fury, - - -
8. 0/ Cambio fidtitio, or feigned Exchange ; or Ufury ai
little varied from the foregoing, - - - 3
9. Of Exchanges in modern life in England,
10. Of Exchange between Ij^n^on and other Places, -
2.
10.
I.
2.
10.
2.
2.
10.
3-
2.
ID.
4-
2.
10.
4-
2.
10.
5-
2.
10.
6.
2.
10.
7-
2.
10.
8.
2.
10.
9-
II.
Ii>
THE TABLE.
Book Chap, f
11. How Bills are to he drawn for Money paidy - 2. lo. iq,
12. Ufance^ what a Jingle Uf an ce^ - - - 2. 10. n.
13. Double and treble Ufance^ half Ufance^ Ufances to many \
different Places, - - - - J ^- ^^- ^2.
Excife.
I. Excife on Beer y &c. import ed, - - 2. 13. 8,
Exile.
1. Exile ^ what among t If e Romans and the "EngWfh 'y //Ji 3. i. 9.
Generation^ - - - - 33.1.10.
2. Abjuration was a legal Exile , - - - 3. i. 10.
F
F.
ACTORS.
1. A FaB or defined \ his Salifications. He fhall anfwer 1 3. S. i.
;/ he exceeds his Commiffion^ - - - 53. 8. 10,
2. Commiffions^ their ufual Extent, He is ahare'Trufteei ^
for his Pri7tcipah - - . J 3- «• 2.
3. Not to give Credit by a general Commijion^ - 3' ?• 3.
4. 0;?f Fa^or deals for fever al Merchants^ where they may l ^
^// ^^ bound or not^ - - 3 3* • 4*
5. Ti^^j d^^^i?^ /^ be provident for their Principals ^ and get | ^
in Debts due to them, - - - J 3* o* 5-
6. Where by falfe Entry ^ or other Fraud of Fa5ior orj
Principal^ the other is damaged^ the Wrong-doer Jhall^ 3. 8. 6.
anfwer, - - - 3
7. C/2/fj /» w^/V^ hCy others in zvhich the Merchant^ fhall\ ^
hear the Lofs, - . - J 3- «• 7;
8. Factor bound to pay a Bill of Exchange which he has ac- •\
cepted^ though his Merchant^ the Drawer^ fails after ^ 3» B* ^*
Acceptance^ - - - - 3 .
9. Where obliged to pay the Freight^ or not ^ - - ?»• ^' ^^
10. Bound to make Affurance^ being ordered fo to do ^ - 3. 8. 9.
11. Not to compound Debts without Authority for that Purpofe^ 3. 8. 9.
12. General Rules for their ConduBy - - 3. 8. 10.
Faith.
THETABLE.
Book Chap. §»
Faith. See King 4.
Fees. See Cuftoms 13. 32.
Firefhips. See Ships 6.
Flag. See Seas, Ships.
r I. 4- II.
1. ?l>^ jR/^^/ ^/ it in the Britilh 5"^^^ belongs to Eng- \ i. 5. i.
land, - - - - "j I. 14. 2,
L I. 14- 3-
2. 5l?(? Z)?^(y of the Flag is but a Confequence of the Bo- 1 i. 5. 8.
minion of the Seas J - - - J i. 14. 4.
C I- 5- S-
3. Z)«/y ^/ //, by whom to be paidy and its Antiquity ^ - . < i. 5. 14.
C I. 14. 4,
6^, ne Duty of ftipulated by Treaties^ - - C '• 5- 9-
c !• 14* 3*
5. T'/^^ Extent of the Britifh 6"^^^, - - - J ^- 5- 10.
C !• 5* i4«
6. T'i'^ D/^/j of the Flag is a Right in the Crown of Eng- 11. 5. 1 1.
land, - - - - - J I. 14. 4,
7. The Duty of the Flag em5fed by other Nations in their j
,Seas, - - - . J I- 5- II-
8. 27?^ Importance of the Duty of the Flag^ - - \ 1 c ic.
Flotfam.
1. ne Admiralty hath Jurifdi5lion of Flotfam j and to\ i. 6. 12.^
w^^;;; // belongs^ " - - - - 3 2. ' 5. 8.
2. Ti^^ X/'/^^V Prerogative as to it^ - - - \ ^' ' g]
3. ff^hat it isy - - - 2. 3. 6.
Foenus Nauticum. 5<?^ Bottomry.
Force. See Treaties 41. War.
1. ^^^« F(?rr^ w^7 be lawful^ or not, - - i. i. 10.
2. Force is an odious Method of acquiring Property^ - -J ' ^' ;'
3-
THE TABLE'.
Book Chap. §.
3. Force willjtfftify a neutral Power to declare for one of ^ i. i. 24.
the Parties at IFar, - - - 3- x. i. 25*
4. Force againji neutral Powers^ where excufed by NeceJjUty^ i. 12. i. I
Foreigner. See Alien. Merchants. Reprizals.
Fraud. See Affurances 5. Barratry.
Freedom. See Aliens,
i3- '• I.
3. I. 2.
3. I. 0
3. I. 4.
3. I. 5.
2. Slavery is ohfolete in Christendom, - - - 2. i. 6.
3 . 'The Pra^ice of the Turks with regard to their Captives ^ g. i. 6.
4. Servitude, how in Ufe among Chrijlians, - - 3. i. 7.
5. 0/ Manumiffton, and making free -, Englifhmen ^^"^7 3. i. 8,
horn free, - - - J 3. i. 9.'
6. Several ways of disfranchizing, - - - 3e i. 9.
7. jEat//^, what? Its Confequences, - - - 5 3- ^* 9*
' -/ 1 ' t 3. I. 10.,
8. Freedom in Cities, Sec. how gained f its Effe5fs, - 3. i. Iijl
9. Of the Freedom of l^owdon, - - - 3. i. 11.
10. Bo/id in Rejlraint of Trade, where good or not ^ - 3. i. 11.
Freight. See Charter- Party. See Owners 12. "^
1. Of the modern ways of freighting of Ships, - 2. 4. i
2. Of the ancient way of freighting of Ships, - - 2. 4. 2
3. Freight is generally governed hy the Contrail, which be- \
ing in writing is called Ch^rter-F3,YtYi - - j • 4- d
4. Of Accidents to Merchant or Mafier preventing the Voyage, 2 . 4. 3
5 . Where the Merchant will have his Goods unladed. Freight \ j
is due, - - - - . J 2. 4. 5
6. fVhat the Mafier may do if the Ship becomes unable, bei
arrefled, &c. - - - j • 4- 5*
7. Of the Ship's Departure with refpe^l to Freight and} ^
Damages, - - - S ' ^' .'
8. Freight may become due, though the Ch^incr-Fsiny not 1 a 6.
punctually complied with, - - - - j • 4*
9'
1
f
THE TABLE.
9. Of Freight ariftng on a Trading Voyage, and loft hy
contingent Actions, - - - -
10. Of Freight become due on the various Ways of Con-
traify or where no Contra^ ,
Book Chap. §
}-
I 2.
2. 4
4
4
11. Of Faults arifing hy the Freighter^ and of the Death S ^ ^
of the Ship with reference to Freight^ , - - \ o a
12. Of Faults by the Mafter in taking in more Goods ^ and 1
of putting into Ports, - - - - - j • 4
13. The lading, how obliged for the Freight, - - 2. 4
14. Whether Freight due, where the Goods are loft without j
Default of the Ship, - - - j • 4
15. Of Freight contracted with a Mariner, not the Mafter, 2. 4
16. Where the Mafter is to anfwer Freight, or not, for 1
Paffengers, ------ j'4
17. Where Freight due, though the Ship loft, the Goods 1
heingfaved, ------ J*^
Fugitives.
I, Whether States (upon Requeft) ought to deliver up any,^
and what Fugitives ?
2. Tn what Cciufes they ought to find an Afylum where they
fly, -■ •
3. Whether, and in what Cafe, an innocent Per fin may be j
delivered up ? - - - - 5
4. Whether an innocent Perfon ought of his own Accord to j
yield himfelf, to prevent Mifchiefs confequent upon pro- >
teeing him P - - - 3
5. An exiled King ought not to he delivered up,
6. Fugitives guilty of Peculation have been delivered up.
7
8
4
6
9
4
6
o
2
4
5
6
t. II.
3^
I. II.
4-
I. II.
I. II.
5-
6.
I. II.
II.
I. II.
4.
I. II.
I. II.
5.
6.
I. II.
7-
I. II,
9-
I. II.
8.
I. II.
16.
I. II.
II.
G.
O O D S. See Communion, Contraband, Dominion, Property,
War.
Guarrantees,
G
THE TABLE.
Book Chap. <{
Guarrantees. See Treaties 21.
H.
■
TTANSE Towns, - . - -
Hoflages. See Treaties ^^.
• I. 2. 3
•
I. Whether liable to be put to Deaths and in what Cafes ^ i. 13. i9
Hypothecation. See Bottomry, Mailers 19.
J
I.
ETSAM. 5'f^ Wreck 7, 8, 9, i©.
Jews. See Aliens 19.
1. The Government of the ]tyfSy hifiorically deduced from \^ ^
Noah, &c. --.---
2. j^t what Time the^ firfi came to England, and how
treated here .^ - - -
3. Their Growth and State in England at the Time of H. II. 3.
4. The Law of R. I. with refpe5f to keeping and evidencing 1 3.
their ContraSfs ; and the Intent of that LaWy - S 3*
5. Charters of King ]ohn to the Jews, - - 3.
6. The Court granted to the Jews was injurious to the Ec- 1
ckjiajiical JurifdiSiion^ - - - - j ^'
7. Of their Synagogues formerly in England, and theHoufe )
of Converts^ now the Rolls Libert ies^ - - J ^*
8. King John granted a Charter of Priejihood of all the 1
Jews in England, - - - - 5" ^*
9. Some Towns excluded them, Succejfion to their Houfes^ 1
how ? - - - - . y ^*
10. Of their Right of Succeffion^ Dower ^ Suits^ Excommu-^ ^
nication^ - - -
C 2,
6.
2
6.
12.
6.
13'
6.
14,
6.
3-
6.
4-
6.
5-
6.
6.
6.
7-
6.
8.
6.
9-
6.
10.
6.
10.
6.
I ft
6.
14.
II.
THE TABLE.
' ^ Book Chap. §.
11. ney lived here formerly in a State of Slavery^ wcre-\ ^
Badges^ and were at the King^s Pleafure^ Body andi ^' }■' ^^'
Goods, i 3- 0. 13,
12. Their Expuljion formerly ^ and the Occafion of It. Their 1 ^
Re-eft ablijhmenty _ - - - - - J 3- ^. 14.
Impofitions. See Cuftoms, Subfidies,
Imprefling. See Mariners, Ships.
Indi(flion. See Denunciation, War.
Infants. See Mafters.
Infidels.
r I. I. 24,
I. Leagues may be lawfully made with them, - ^ J i. i. 25.
C I. 7. 27.
Injuftice. See Juftiee.
Infurance. See Aflurance.
Infurredlion. See War.
Interpellation.
I. Interpellation y how introduced^ anditsUfcy '^ l. r. 2q]
Invafion. See War.
Judgments. See Reprizals."
Jurifdiftion. See Admiralty, Juftiee, King, Offences.
Juftiee. See Admiralty, Ambaffadors, Juftiee, King, Offences.'
I. Denial or Belay of Juftiee is Injuftice ; and a Caufe
. for Reprizals y - . - - . '
2. Juftiee is every Man^s Right , who has not forfeited it y
Cafes in which private Men may
out the Solemnity of a Judgment y
3. Cafes in which private Men may execute Juftiee y with- 1
2. 5,
2, 13.
2. 14,
2. 15.
2. 5-
6. 10.
6. II*
King.
K
THE table;
^ Book Ghap. ^*
K.
I N G. See Fugitives, Leagues, Princes, Seas, Treaties.
1. Of England, his Dominion in the Britifh Seas, - 5
2. Where Kings or States may or may not partake of the i
Crimes of their Subje5fs, - - - 3
3. An exiled King ought not to he delivered up^ - i
4. Kings and States ought to keep Faith, - - i
Kingdoms. See Aliens, Laws.
4. II.
5- 13-
II. I.
II. 10.
14. 18.
t X A DING. ^^^ Owners 12. Wreck.
L
1. In what Cafes Goods may he cafl over hoard-, and which { ^' / . ^'
Goods chiefly, - - - t fi ^'
2. Goods caji overheard, how accounted for ? - 2. 6. 2.
0^, T^he Antiquity of the Law of the foregoing Matter, - 2. 6. 3.
Laws of Nature and Nations.
i» Human A5f ions fuhje5i to great Variety, and why ? j ^* 9'
2. ^he Origin of human Laws, the Law of Nature /V} 3- 9. 3.
above them : Why ? their Difference, - - ^ 3' 9* 5*
3. Of the Law of Nature, no Man is more a Magiftrate 1
than another, - - - - - ^ ^ 6' y' ^'
/^. Why Magiftrates may punifh the Violation of the Laws \ 3. 9. 5.
of Nature, or of Nations? of punijhing Equals, - 33. 9. 6,
5. Where the Right of punifhing an Equal fails, and why .? 3. 9. 7.
6. Fr^;;? whom Subjects ought to feek Juftice, - Z' 9* ^'
7. By what means Kingdoms equal in Power execute thel 3. 9. 9.
Judgments of each other, and in what Matters, - 33. 9. 10,
8. Judgment given in England, how to be executed in Ire- 33. 9. i in-
land, &c. whether f9 in the Plantations, - 33. 9. 12.
Leagues.
THE TABLE.
Leagues. See Treaties.
Book Chap. §.
t i. I. 24.
, I, Leagues may he lawfully made with Infidels^ - -j i. i. 25.
\ ^ I. 7. 27.
2. Leagues defined^ - - - - - - i. 7. 14,
3. Statutes concerning the Breakers of them^ - - i. 9. 7.
Legation. 6*(f^ Pirates.
Letters of Marque. See Reprizals.
1. Caption under Letters of Marque^ when it alters the \
' Property^ - - - - 3 • • 4*
2. 'The Origin of Reprizals y - - - - ^ 1 o jr,
3. By whom y and for what Caufes grantahle^ or not^ \ * * *.
\ 4. 'The Courfe to be ohferved in order to obtain them^ - \ ' .'
5. The Form of Letters Patents for fpecial Reprizals, - i, 2. 15.
6. Men become fubje5i to Reprizals by their Place of Reji- 1 ^
dence or Domicile not by their Place of Birth^ J *
7. What Perfons exempted from Reprizals, - - i. 2. 18.
8. Letters of Reprize juflify ajfaultifig thofe that reftfl, and)
the Confequences. - - - J *
9. Where Perfons may be guilty of Piracy, notwithjianding 1 i. 2.23.
their Letters of Marque, - - - - 51.2.24.
10. Caution to be given on obtaining them y - i. 2. 25,
Ligan. See Wreck 7, 8, 9, 10.
Load manage.
2. 20.
1. Petty Loadmanage, what ? - * 2. 9. 5.
2 . Loadmanage, what ? and Loadfman, who f his Charge, &c. 2. 9. 7.
London. iS*^^ Freedom 9. Merchants. Ports.
» r iir
M
Aintenance. See Bills of Exchange.
Man of War. See Commanders.
L 1 Manumiflion,
THE TABLE.
Book Chap. §.
ManumifTion. See Freedom.
Marc. See Letters of Marque.
Mariners. See Commanders, Matters, Piracy, Privateers,
Prizes,
1. Beferting their Ships, forfeit their IVageSy - J -* 1* i*
2. Whether imp effing any^ and what Ships he lawful ? \ to S ft
3. Whether impr effing Mariners he lawful^ and why 1 1 r \ 1
4. Ohje5fion againft impreffvig Mariners^ anfwered, - 1.6. 7,
5. TZ'^ ancient Punifloment of Defer tion^ capital, - i. 6. g.
6. Statutes againji Defertion making it Felony, and direSf- 1
ing the Trial, - - - J i. 6. 9.
7. Whether a private Pcrfon may put fuch Defer ter to-i i. 6. 10.
Death, - - - - J i. 6. 11.
f I. 13. 4.
! I. 13. 6.
8". 0/ Offences ufually committed hy Soldiers and Ma-j i. 13. u.
riners, - - - - | i. 13. 22.
j I- iJ- 23-
I. 13. 25.,
I. 13. 5.
^ I. 13. IX.
9. 0/ Piinifkments for Offences hy Soldiers and Ma-j' i. 13. 1^9.
riners, ji.13. 22.
i i I- 13- 23.
L I- 13. 25.
10. Cowards to he puniped with Death, - i. i?. ir.
11. Provifion made for them and their Widows, - I. 12. 28.
1 2. 5^/6^ different Decrees, Charges and Duties of Marine Y
Officers, . - . ^ . I 2. 3. t.
13. Of the Maflers, Power and Duty as to the reft of the \ 2. 3. 2.
Officers and Mariners, - - - - 32. 3. 12.
14. The Duty of Mariners to each other, and to the Ship, 2. 3. 3.
15. iVi?/ /^ /^<3i;^ //^^ Ship without Licence of the Mafter.-i
When an fwerahle for Damage, When their Pay com- \ 2. 3. 4,
mences, - - - - j
[
2.
6
7
lO
8
9
T H E T A B L E. ^
Book Chap. §
1 6, JVhen and where^ at whofe Charges to he taken care |
of^ heing wounded or fick^ - - \ '^' Z' &
17. Where their Oath Jhall difcharge the Mafter^ - 2. 3. 6
, 18. 1'he Funijhment for ajfaulting the Majier on Boards 2 . 3
19. j&y what Accidents^ &c. /^^/V Wages are loft^ ^r") 2. 3
;/^/, - - - - - 3 2. 3
20. Where they may all join in a Suit for their Wages ^ or not ,? 2 , 3
21. Where their Wages liable to anfwer Damages ? - 2. 3
I. 22. Where Goods taken up by them is a Difcount of their \
Wages ? -- - - - - -3
23. Barratry^ Sec, in them^ whether^ how^ and why im-\ '
puted to the Majier ? - - - - ] * ^
L 2." 3
24. An ancient Record to the Purpofe ofScd:. 23. - 2. 3
2 5. F<?r ^^^/ G^^ij embezzled on board the Majier is not{ ' ^
anfwerabky - - - * / '
Mafters. See Barratry, Lading, Owners, Pilot, Pirates,
Privateers, Prizes, Ships, Wreck.
1. Punijbable, (and how) for leaving their Men aboard^ &c. i.
2. ne Definition of a Majier of a Ship •, his Inter ejl and} 2.
Office in general, - - - - - 32.
3 . The Majier y and not the Owners, anfwer able for Devi- 7
ation and Barratry, - - - 3 *
4. Maflers are hound to anfwer for Goods damaged or em-) 2.
bezzled in Port, or at Sea -, the Owners are alfo liable, J 2.
L 2.
5. The Majier is chargeable with the Duty ofWeighage, 2. 2. 2.
6. The Majier anfwer able for Damage occajioned by failing ^
after an Embargo, An Agreement diffolved by Em-V 2. 2. 3.
barg'O, - , - - . J
7. His Duty with refpeSl to failing, or flaying in Port, i^l 2 2 A.
fair or tempejluous Weather, - - 3 ' *
8. His Duty as to ^antity of Lading, and ^ality ofPaf 1 ^ 2, ^
fengers received on Board, - - j . . .
L 1 2 ^, Not
4.
24.
2.
I.
3-
I.
2.
I.
2,
2.
2.
8.
2.
10.
9-
5-
2. 2.
T H E T A B L E.
Book Chap,. J.
9. Not tojhip Goods aboard the King^s Enemies, though -k "I
his own Ship leaky ^ &c. - - J ' *
10. Of his jhipping unlawful Goods, or Goods at unlawful! 07
Places, - - -- - - - \ ' ' '
1 2« 2. 1
11. Not to fail without fuficient Mariners, tackle, ^c. v ^ 2! 10
12. Not to ufe unlawful Colours, - - 2. 2. 8
13. Where excufed, or not, as to Goods taken from him ^ 2. 2. 8
14. Not to carry counterfeit Cocquets, nor to refufe Pay- ■>
ment of Duties, &c. - - 3
15. /-//i Care of the Ship in Port, and to clear out, 2. 2. if
16. Bis Duty at Seawithrefpe^i tohis Courfe, 2. 2. 12
2. 2. 12
2. 3. 13
1 7 . Whether and in what Cafe anfwer able for the Mariners, ^ 2 . 3.14
2. 3. 16,
18. Charge againft him, how to he brought? A5lion lies}
againfl an Infant, Mafter, &c. - -^ ^' ^\^^
f 2. i.'^io
I 2. 2. 14
19. fi/j Pi/'K;^^ /^ fell or hypothecate the Ship, Sec. in what) 2. 2.15
Cafes, ornotf -. - 2. 2. 16,
2. 6. 13
- 2. II. II
20. Orders to be carefully infpeBed and obeyed, 2. 2, 16
2 1 . What Fejpls and Marijiers to be ufed in tradiitg with } o o *,
Goods of Afia, Africa, and America ? 5 * * ^
22. What Ships, &c. jnay'go from Port to Port in "Eng-J 2. 2. 18
land, &c, a7id how ? 5 2. 2. 21
23. Goods imported, when to he of the Country, whence y
brought, or not? J ' * -^
24. Not to ufe affe^ed Delay in coming to his Place ofDif- >
charge, ^e Manner of makijig his Entries, >
25. What Goods not to be imported from the Netherlands 1
• or Germany, J
a 6. 'The Mafter s Power and Duty, with refpe^ to the refi 1 2. 3. 2
of the Officers and Mariners, 32. 3. 12
A 7. F<?r what Goods embezzled on Board, the Mafter ^'•^5 2* 8
;/^/ anfwer able, I ' ^
. C 2. 3. 19
2. 2. 20
2. 2. 22
THE TABLE.
Book Chap. §.
aS. Whether Goods can he attached in the Mafter*s Hands^ 2. 3. 19.
2^. His Duty and Inter eft ^ if a Pajfenger dies on Boards 1
&c. if himfelf dies the Maters Duty ^ - \
30. When the Mafter is to make good the Lofs hy Wrecks or
not^ - - - -
2. 4. II.
\ 2. 5. 10.
6. I.
gi. In what Cafes the Mafter may caft Goods over-] 2. 6. 4.
hoards - - - ^ 2. 6. 5,
(.2. 6. 16.
32. The Mafter* s Duty to fee the Average fettled and an- 7 2. 6. 7,
fwered^ - - - » 3 2. 6. 16.
33. Where the Ship and Lading fhall contribute to redeem | i. 4. 6.
/i?^ Mafter? - - - J 2. 6. 13.
34. Where the Mafter ftoallpay the Lofs of Goods caft overboard^ 2 . 6. 1 5,
35. Mafter wilfully deftroying his Ship^ guilty of Felony ^ 2. 11. ii .
Mediation. See Treaties 21.
Medietas Linguse. See Trial 4. &c.
Merchants and Merchandize. See Bills of Exchange, But-
lerage, Cuiloms, Factors, Lading, Pilot, Prifage,
Reprizals, Se5l. 18. Subfidies, Wreck.
1. Where Merchandize is embezzled hy a Mafter of a Ship^ 7 a i ^7
when Felony or not^ - - - J * t- /•
2. Merchants anciently relieved under Royal Commijions 1
for Frauds in Contra^s^ &c. as well as Piracy^ 3 *
3 . Whether the King may reft rain Infidel Merchants^ or our i ^ i '>
Merchants from trading to Infidel Countries^ - j * * *
4. Diamonds^ Gold,, 8zc. may be exported Duty free^ 2. 13. 10.
5. Tare and Tret ^ what? - - - 2. 13. 14.
6. Scavage^ what? and where? and to whom pay able y 2. 14. i.
7. Scavage, by whom payable^ and how regulated ? 2. 14. 2.
8. Scavage, at what Rate payable ? - - 2. 14. 3.
o. Package^ what ? and where and at what Rates pay-^ 2. 14. 4.
able? - - - J 2. 14. 6.
10. Package^ how paid by Strangers f - - - 2. 14. 5,
1 1 . Of Porter age <i and Waterfide Porters : At what Rates 7 2.14. 5.
p^/<^, - - - - J 2. 14. 6.
12. Water-Baillage^ what? - - 2. 14. 7.
L 1 3 13. Cs?»?-
THE TABLE.
Book Chap. §♦
13. Commerce is both honour able and profitable . lis Be- 1 3. 7. i.
jufiss £?tumerated, - - - J 3* 7* 7*
14. Aler chants ought to be tender of giving a Chara5ier^ \ o >i \
whereby another is to gain n Credit^ - J i* /•
15. 'Tisfor the Bejufit of the Publick to have the Noble an d^
Rich to engage in Commerce. Particular Injlancesr 3. 7. 2.
• mentioned^ - - - ^
16. Abjira5f from the Statute for ending Suits by jirbitra-\
tion -, and Cafes thereon^ - - J 3* /• •
17. Hiftory of the Company of Merchants Adventurers^ 3. 7. 3.
18. O/'Z-i?^ Eaft- India C^;;?/>^;2y, - - Z' 7- 4*
19. 0/ the Dutch EaPc-India Company^ - - 3« 7- 5*
20. 57'd' African C(?w^i?72y. 7)6^ French Eaft-India C^«?p^/?y, 3. 7. 6.
21. Whether^ and in what Cafes^ Companies are for the Be- 1
nefit of "Trade^ or not^ - - j o* /• /•
22. Merchants provided for by Law in the Saxon Times 573. 7. 8,
and by Magna Charta, - - - 3 3. 7. 9.
23. Mr chant-Strangers^ how to be treated zvhen their 'k
Sovereign is an Eneray^ - - - 3_.L
24. Merchants made Denizens by Patents or A3f of Par- 1
liament^ whether to pay fuch Cuft cms .^dzc. as before ? ) ^* ^'
25. IVhat kinds of Dealings pall denominate Men Mer-\
chants., or not^ - - - - 3 ^* '' ^*
7.6. 'The Right of SurvivcrfJoip holds not among Merchants^ 3. 7. 14,
27. One Partner 7nay have account againft the other^ - 3. 7. 14.
28. IVhere there are Part-owners in a Ship^ and cannot ^
agree what is to be dofie ? - - - - j 3* 7* 4t
29. 2^i6i;7y Controvirfies to be determined by Law-Mer- 1
chant. Other Privileges., - - ^ o' 7* 5'
30. T^fjy ^r^ the only Siihjetls who may depart the Realm , 1 ^
&c. without Ijcence., - - - - 5 o* 7*
31. Merchants 'Strangers are bound by prohibitory Laws \
of the Land, - - - S ^' ^* ^'^'
32. Marking of Goods., its Ufe. The fame guarded by Law ^ 3. *^i'''i8r'
33. /^^/ By-Law of a Company ?nay be good to give y^
them fives a Preference., - - ^ 6' 7' 7'
34. The Ufc of Bills of Lading with refpeof to altering Pro- } *,' 0
pmy., - ^ . \ - I 3- /• ^0.
Money
THETABLE.
Book Chap. §.
Money. See Bills of Exchange*
1. Its Ufe and Ahufe ; Traife and Difpraife^
2. How Money becomes the Meafure of the Value of\ 2. i
Things^ ' - - - 5 2. I
3. Money does not hinder^ but ajjlfts the Permutation of'h
natural Things^ - - - i '
4. Money is ancillary to Charity^ - - 2. i
Murder. See Pirates.
Mute. See Pirates 34.
Mutiny. See Commanders 16.
N
N.
ATUR ALIZATION. See Aliens,
Nature. See Laws of it, ^c.
2.
6.
7-
4.
5-
6.
Navigation. 6"^^ Merchants, Owners, Pirates, Privateers,
Prizes, Ships.
I. Its Encomium, - - - 2. i. i.^
NecefTity. See Occupancy.
1. Extream Necejftty feems excepted from the Laws of Pro- 71. i. 4*
perty, - - - - 3 i. 6. i.
2. A^' ^;<*r«/> /i'^ taking Stores at Sea, paying or giving} a on
Bills for themy - - _ 5 ' '^^ •
3. Where it excufes Force ufed againft a Neutral Power, i. 12. i.
4. Where extream Neceffity excufes Neuters for paying Con- •^
tribution, even contrary to the Inter di^ion of their ^ i. 12. 10.'
Prince^ "l"'*::^
L 1 4 5. jE^-
THETABLE.
Book Chap. §
5. Extream Necejfity excufes the confuming of things ^^'1 ^ r u,
voted to Gody - " •"
} 3- 5
Neuters and Neutrality.
1 . Where a 'Neutral Tower ought to rejicre Prizes taken at
Sea. See Prizes. , - .
2. JVh ether. Enemies may or may not he attacked in a neu-
tral Port^ &c. - - -
3. See EnefTiIes, Se5f. 5. - -
4. Supplying Necejfi'.ries for War to an Enemy ^ is ajufl
Caufe cf IVary . - -
5. What Goods a Neuter may well fur nijh to a Party in
War^ - - _ -
6. Whether a neutral Power may he excufed for ajfifiing one \
cf the Parties at War ^ , . - - j
7. ^he Kinds of Neutrality^ and how each is governed^
8. "J^he Advantages and Difadv ant ages of Neutrality^ -
9. Neutral Powers^ in what Cafes to declare^ and for vshom ?
10. Whether it he lawful for warring Powers to ufe Force 1
againfi Neutrals^ &c. - - - 3
J I. "The Condu5i to he ohferved in aflri^ Neutrality^ \
1 2 . Whether neutral Powers may pay Contrihution to al
warring Party^ - - - ^ 1
13. Whether Neuters may he eff equally interdi5fed hy their \
Prince from payirg Contrihution^ Sec. - 1
14. The Intent of Inlerdi^lions againft Contrihution to he\
paid hy Neuters.^ - . - - 3
I. I.
16.
I. I.
24.
I. I.
24.
I. 13.
8.
I. I.
24,
I. I.
25,
I. I.
24.
I. I,
25.
I. 9.
8.
I. 9.
9-
I. 9.
IQ.
I. 12.
I.
I, 12.
2.
I. 12
9-
I. 12.
3-
) I. 12
.9.
I. 12.
10.
I. 12.
12.
I. 12.
iO.
I. 12.
II.
o.
o
ATHS.
1. Oath given to a Pirate^ whether it chligesf - i
2. Whether exacting an Oath to poy Money for Redemption 1
hi Piracy.^ - - - J '
Obedience. See Ccmmr.nders o. 19.
4- 7-
4. 1?.
Occupancy,
THE TABLE.
Occupancy.
Book Chap. §.
1. Occupancy^ one Method of acquiring Troperty^ - i
2. Occupancy^ a Right antecedent to all other Divijion of} i
Property^ - - - - - J 3
3. Natural Vacancies give Right to Occupants^ ^^) 3
Planters^ - - - 3 3
4. C/w7 Vacancy^ what ? what fhall not he /aid a Dere- 1
liSiion? - - - 3
5. P^<?//^ expelled their Country have a Right to feek and}
occupy void Places^ - - 3 '^
6. Whether Planters acquire a Rights or an Ufufru^^ 3
7. What is due or not to the Necejfities of new Planters A 3
Perfons in Dijirefs at Sea^ &c. - J 3
l 3
8. jT/^^ primitive Communion of Goods ^ and Chriftian Cha- \
rity, to have their Limits^ - - i ^
9. Plantations^ by what Laws io he governed^ *• 3
Offences and Offenders. See Fugitives, King, Mariners,
55 ^^ 7' ^5 9' ^o-
. I.
3-
. I.
10.
• 5-
I.
• 5.
2.
• 5-
3-
• 5.
3.
• 5.
4-
• 5-
5-
• 5-
6.
• 5-
7-
• 5-
8.
• 5-
9-
• 5-
10.
• 5-
12.
. Offences^ hy whom properly punifhed^
I. II. 2.
Ofncers.
See Commanders, Cuftoms 13. Mariners,
• Mailers.
I. 13. 28»
^^i. Provifion made for Officers Widow Sy
Orders. See Commanders 5*. Maflers 20.
Owners. See Maflers, Piracy, Privateers, Prizes, Ships.
\ . T!he Majority of the Owners may fend out their Shipl
without the Confent of the reft^ hut not without their I 2. r. 2.'
Privity-^ upon what Terms. Whether the lejfer Num-C 2. i. 3.
her may fend y &c. - - - J
2. A Part -Owner may maintain Trover for an Eighth -^ ^2. i. 2.
&c. - - - - - J 2. I. 14.
2. 1, 2,
4. Whether
3. Part 'Owners are Tenants in common of a Ship,
p
p.
ACKAGE. See Merchants 9, 10.
4-
5-
10.
16.
5-
6.
THETABLE.
Book Chap, f
4. Whether Owners muft continue their Partnerjhip until \
the Ship make one Voyage^ - - - - J • • 3*
5. The Mqfler is to he chofen hy the Owners^ hy their Va- j
lue, not Number, ^lalities requifite in him^ - 5
6. Where the Mafter jhall anfwer to the Owners ; and^ 2.
whtre they are chargeable for his Default ; or Debt con- > 2.
trailed by him^ or not^ - - - 3 2,
7. Where an Action will lie for or again ft fome of them \ -
Gnly^ or not^ - - - J '
8. Where the breaking up of the Ship determines the Part- >
nerfldip^ or not., - ' - - 3 *
9. Whether the Sale of a Ship forfeited for Piracy may ft and 7
cr not., - - - - 5 •
10. M^hat Damages the unlawful Poffeffor of a Ship fhalli
anfwer to the Owners^ - - 3 *
11. In order to thefafe Cuftody of a Ship arrefted^ the Of \
ficer may take her Sails^ - - 1 *
12. Where the Owners fh all have Freight, though thei
Lading be loft, - - - S *
13. Whether and when a Ship becomes a Deodand, or\
not, - . - . f 2-
14. Forfeitures for running, or undertaking to run import- i
ed Goods, - - - ) *
15. A Cafe in which the Owner mortgaged the Ship fever al j
times, and the firft Mortgagee was poftponed, - J
II.
II.
12.
16.
Pardon.
I. PFhat Pardon will extend to Piracy, or not ? - i ' o'
•^ l I. 4. 28.
Partners. See Merchants, Owners.
PafTage. See Seas 8, ^c.
X
Paffenger. See Freight 16, Mailers 29.
Peace.
THE TABLE,
Peace. See Leagues, Treaties, Truce, War.
Penfion. See Treaties.
Pilot.
1 . His Duty and Charge^
2. His Punijhment^ by foms Laws^ for Ignorance^ &c.
3. By whom employed^ and paid^
4. Whojhall anfwer if the Ship mifcarries under his Care^
Pirates and Piracy.
1. Whether a Caption by Pirates alters Property ^ and}
when ? - - ' - >
2. Perfons having Letters of Marque may be guilty of-i
Piracy, - - . J
3. Their Definition or Defcription, They are Enemies to }
Mankind, - - . J
4. Sovereigns are {by the Law of Nature )bound to reftrain \
them : but not by the civil Law, or the common Law, 3
5. A Company of Pirates are not a Commonwealth or State^ 1
therefore not properly Enemies, - - - J
6. Whether capable of the Solemnities of War, and Rights 1
of Legation, - - - - 3
7. Whether Ship and Lading may be obliged to contribute 7
to redeem the Mafier, or not ? - i"
8. Where a Pirate may be entitled to Ranfom, or not f
9. Oath given to a Pirate, whether it obliges^
10. Englifh Pirates within the Stat. 28. H. 8. guilty of
Felony, The like of Foreign Pirates fpoiling Englifh
Book Chap. $.
men.
-i
1 1 . Enemies, where not guilty of Piracy, though they rob 7
with Pirates, - - - 3
12. Piracies within the Britifh Seas punifhable by the King 1
of England, - - ' - 3
13. Pirates on the Ocean punifhable infiantly without Judg- 1
ment, - - - - 3
1 4. The like if brought into Port, and the Judge rejects the j
Trial, &c. - - . y
J 5 . Whether all are Principals in Murder by common Law^ 1
and by the marine Law^ - - - 3
2.
2.
2.
2.
9- I.
9. 2.
9. 2.
9- 3-
I. 14,
6.
2.
23.
2.
24.
4-
I.
4.
2.
4-
?•
4-
4-
4-
5-
4-
6.
4.
7-
4-
7-
4.
8.
4-
9-
4-
10.
4-
II.
4-
12.
4-
13-
4-
14.
Where
3
T H E T A B L E. I
Book Chap, f
1 6. tVhere a Suhje5i of one Foreign Army having robbed -j
another, brings the Booty to England, whether any, and^ i, 4. 15.
what Redrefs ? 3
1 7. Having carried the Colours of a Prince in Amity ^ andf
making Prize under an Enemy^s Commijftony makes not ^ 1, ^. 15
the Captors Pirates^ - . 3 '" '.
18. Taking Men to fell for Slaves ^ whether Piracy, ori r
not? - - - - J • 4*
19. Piracy may be committed, though nothing taken. Or'% 1
where Goods are taken out of a Ship, and no body in> * ^'
it, - - ^ - ^ 3 ^* '^' ^^
20. Whether the Owners or Imployers foall anfwer Da-'h
mage, where a Ship having a Commiffion of Reprizal > i . 4.19
commits Piracy, - - - 3
21. ff^hat taking of Goods (being enforced by NeceJJity) is \
not Piracy, - - - J i. 4- 20
22. Merchants Goods taken from Pirates, whether theyy^
■ belong to the Captors, or the former Owners? - j • 4-
23. Sale of Goods taken by Pirates, alter not the Pro--\
perty. Other wife of the Goods of Strangers fold in Eng- C
land in open Market, - - - 3 '
■24. Goods taken by -them, coming afterwards to Land,} i. 4. 22
. fiall be delivered to the Owner, - • 5 i. 4. 23!^
25. Not .punifhable at common Law, but by the Civil Law 1
by the Admiral, before the Stat. 28. H. 8. c. 15. 5 ^' ^' '^^
26. The Statutes againft P-iracy, dire^fing the Trial, Sec. 1 >
Lofs of Lands and Goods, - - J i. 4. 24.
27. Denizens acting againji Brltilh Subje5ls under Foreign |
Authority,, Pirates, ... . - - \ ^' "^^ '^^
28. What other Offences are made Piracy, &c. by the A^ 7
wand 12: W. 3. ch. 7. and fubfequent Statutes, - > ' ^
29. Accefforics to Piracy, when to be punifhed as Princi- 11. 4. 2
pals, or not, - - - - J i. 4. 30
4. 2i
4. n
3
\
I. 4. 24
30. Rewards enabled for defending againft Pirates, difco
vcring Combinations, &c.
r I. 4. 2
31. Conftru^ion uponSt^t. 2S. II. 8. ch. 15. . - i 1 a 2q
( I. 4. 3c
32. Robbery in Port is not Piracy^ ^ * i. 4. 27.
I
33. Whal
THE TABLE.
Book Chap. §,
33. What Pardon will extend to Piracy^ or not f - 5 ^* 4-2 6.
C I. 4. 28.
34. Pirate ftanding mute was put to his Penance^ - i. 4. 29.
^c,. Pirate brings the Goods into England, where triable P i. 4. gi.
36. TVh ether B. R. -ze;/// ^/>^« a Habeas Corpus difcharge a -j
Per/on fufpe^ed of Piracy^ after Ignovsimus returned by > i. 4. 32,
the Grand Jury^ - - , 3
^y. Murder at Sea, triable at Land, by Statute, - i, 4. 25.
Planters. See Occupancy.
Porterage. See Merchants ir.
I Ports.
1. The Peace of neutral Ports to he preferved, - i. i. 16.
2. Ports are within the Bodies of the Countries, therefore }
Robbery there not Piracy, - - j i. 4. 27*
3. Ports defined or defer ibed, - - 2. 14. 8,
4. A Member of aPort, and aCreek, defcribed, - 2. 14, 8,
5. The Ports with their Members and Creeks in England 1
and Wales, enumerated, - - J 2. 14. 9.
6. Port c/ London, its Extent, - - 2, 14. lo.-
*i, A Lift of the lawful Landing Places for Goods in the\
Port ^/London, - - _ J 2. 14. 11.
2, What Goods may he fhipped or landed at other than the}
lawful Wharfs and Keys in the Port of London, - J ^t ^4* ^2.
PofTefllon. See Dominion, Occupancy, Property.
Poundage. See Subfidies.
Prefoiption.
• r I. 5. 14.
1. Whether valid among States, - - s i. 14. 14,
t I. 14. 15.
2. Its Force in fome Inftances, - - '' 2. 5. 4.
Preffing. See Mariners, Ships.
Primage.
I, What it is, and for what Conjideration paid, - 2, 9, 5*
THE TABLE.
Princes and States. See Kings, Leagues, Treaties.
Book Chap, f
}
!
1. Prifage^ its Defer iption and Antiquity^ - - |
2. Whether Merchants^ Natives y or Sir anger s^ liable to
it?
3. Jt what Time due^ - - _ -
4. The Londoners (refident) free from it, - - <
5. -^Londoner having Wines en auter droit, not eaemfted 1
from it, - - - y
6. A Londoner charged, who purchnfed a Cargo after
Arrival, &c. - - -
7. Grants of Difcharge, when good, or not ?
8. Perfons not charged with it, are not to cujlom the Wines \
of Perfons charged, - - - 3
9. By what Grant not difcharge d,
10. The Cinque Ports are dif charged of Prifage,
Privateers. See Prizes.
1 . They are edlcwahle by the Law of Nature,
2. ■' ' and by the Law of Nations,
3. When, and why they were infiituied^ and have been en-
couraged? ► - -
4. Whether they have a Right to kill the Enemy, and to
feize and poffefs their Ships and Goods ?
5. Commifions to killor fpoil an Enemy are general or fpe-
cial. The general Commiffion,
6. Special Commijfwns to kill or fpoil an Enemy, to whom
granted -, and the Rights accruing by them ?
7. Privateers not to convert Prizes to their own life before
Condemnation, - - -
\
1. Why Princes are called Go d^? - - - i. 2.
2. Whether States in any fort anfwerable, if their Ships ofl
War or Privateers become Pirates, - - J • 4«
3. Dangers attending Interviews of Princes, - i. 7. 3
- Prifage. See Butlerage.
2.
8.
I
2.
8.
9
2.
8.
I
2.
8.
2
2.
8.
3
2.
8.
3
2.
8.
4
2.
8.
5
2.
8.
6
2.
8.
7
2.
8.
8.
2.
8.
10.
2.
8.
u.
3'
3"
2.
I.
t
6.
3. 6.
6. 17..
3
3
3
3
8. 77;g?
THE TABLE.
Book Chap. §.
8. They are not to violate the Laws of Nations, A Cafe \
onthatHead^ - - - 5 ^* 3- 7*
9. They are not to violate Treaties ; and Caution to he taken 11. 3.8,
on granting their Commijfions, - - 3 1 . 4. 2 .
10. Where Frizes fhall he difcharged for the Cruelty of the 7
CaptorSy - - - - 3 ' ^
11. Ships refufing to he examined^ may he affaulted^ - i- 3
1 2 . May in many Cafes he criminal j and in fome capitally 3 i . 3
punifhedy viz. on their hecoming Pirates y - 31,4
13. Privateers fever ely cenfured^ - ^ - 1
V I. 4
\\, Their Sovereigns not anfwerahle^ if they hecomePyrateSy i. 4
.15. What fhall not make them Pyr at esy - - j '
1 6. Whether their Employers to anfwer Damages^ if the \
Captain^ &c. commit Piracy ? - - 3 ^'
Priveleges. 6*^^ Ambafladors.
Prizes. See Captors, Commanders, Pirates, Privateers.
4
4
4
4
9-
14.
2.
15.
2.
2,
34-
19.
I
I. I. 12;
. Prizes at Sea^ at what Time they properly helong to the j
Captors^ - - - j
2. What Things are good Prize^
3. Whether a Ship he Prize or not^ where triable^ -
4. Among whom the Spoil of Prize-Ships is to he di-}
vided^ - - - - J
5. Taken hy Privateers^ to he condemned hefore they con- \
vert them to their own Ufe^ -" - 5
6. Where Prizes fh all be difcharged for the Cruelty of the \
.. Captors^ - - - 3
7. Where an Appeal jhall fufpend the Execution of the Sen- j
tence or Adjudication^ or not P - - - j
I.
I.
13-
I.
I.
H-
I.
2.
21.
I.
3.
6.
I.
4.
15-
I.
13-
10.
I.
I.
18.
I.
0
10.
I.
3-
II.
2.
6.
17-
I.
2.
21.
I.
2.
22.
2.
6.
17*
I.
3-
6.
2.
6.
17-
I.
3-
9-
I.
3-
9-
8. Where
T H E T A B L E.
Book Chap. §.
8. where the Ladings or Part^ being Prize ^ infers the \ ^
Forfeiture of the VeffeU or not ? - - 3
9. Merchants Goods taken from Pirates^ whether they be- 1 i
long to the Captors ? - - - 31
10. Ship-Papers^ &c. ought to be preferved and exhibited^ 1 i
&c. - - - - 3 I
11. How the Crews ^^c, of Ships yielding without fight- ■\ ^
ing^ are to be treated : and of garter given or refu- C
fed in Cafe of fightings . - 3
Prohibition. See Admiralty 7, 11, 12, 13.
Property or Propriety. See Dominion, Neuter, Prizes,
Wreck.
3. 12.
4, 21.
4. 23.
2. 25.
13. 10.
13. 12.
1. Property^ or the Propriety in Goods ^ its Origin^
2. Its Progrefs^ -
3. Occupancy^ one Method of acq^uiring it,
4. Extream JNeceJfityfeems excepted from the Laws of Pro- 1
perty, - - - - j
5. Property may be diveftedby ajuft War undertaken by ai
Sovereign. How ? when ? and i^ what Proportion^ - 3
6. Dominion or Property is eftablifhed by Law and Ufe,
7. Invafion of Property is prohibited by the Law of Nature,
%, Property of Ships taken at Sea, how and when vefted^
in, or divejied out of the Captors,
Protection. See Commanders 12. Fugitives, Leagues,
Treaties.
Proteft. 6'^(? Bills of Exchange, 3. 5. 13. 17.
3
3
5
12
10
10
12
i4t
15.
Q
UARTER. See Commanders 8. 11.
K.
R
THE TABLE.
Book Chap. ^.
R.
ANSOM. 6*^^ Contribution, Pirates, 7. 8.
Rates. See Cgftoms, Subfidies.
Rebellion. See War.
Redemption. See Contribution, Pirates, 7.
Renegade. See Aliens.
Reprizals. See Letters of Marque.
I. Reprizals^ zDhat ? - - - i. 2. i
I. 2. I
2. 5
2. 17
3. Whether founded in natural Equity ? - - i. 2. . 2
r I.
2. Bywhom^ and for what Caufes grant able ^ or not ^ ^ i.
C I .
1 o. Extraordinary^ what ^ in what Cafes ^ hy whom and \
to whom z^antahle ? - - J *
2.
r I. 2. 3
4. Introduced hy the Law of Nations^ and for I>^eceffttyy ^ i. 2. 4
t I. 2. 12
5; Androlepfta among the Grecians-, particularly hy the-i 1, 2. i
Athenians, - - - 3 i. 2. 4
6. 71?^ aS/^/jj neceffary to he taken^ in order to obtain Let- 1
ters of Reprizal^ - - - j *
7. Ordinary y in what Cafes^ and to whom^ and hy whom\
grantahky - - - / '
8. In what Cafes they may he revoked^ or fufpendedy or\ i- 2, 8
not? - - - - y I. 2. 10
9. ne granting Letters of Reprizal in the ordinary Way \ <> c\
does not break the Peace^ - - j • • y
I. 2. 7
2. 8
2. 15
2. 10
11. On a wrong Judgment in a Matter not doubtful ^ ^^' 1 ^* ^' ^3
prizal may be grounded. Q^ if in a doubtful Cafe ^ 3 i. 2. 14
12. A Precedent of Letters Patents for fpecial Reprizals^ i. 2 , 15
13. Men become fubje^ to Reprizals by their Refidence or} o \6
Domicily . ., . , 5 * '
Mm 14. Whi-
THE T A B L E.
Book Chap. §.
14. Whether any and what Per fans he exempted from Re* 1 «
frizah? . . . . J I. 2. 18.
15. Whether any and what Dijlrefs may exempt Ships ^ Sec. 1 , ^..
from ReprizalP - - - \ ^' ^' ^p
16. Letters of Reprize^ in Cafe of Refjlance^ willjuftify 1
Ajfault^ and its Confequences, - - J ^ *
1 7. 'The Equity to be obferved in making them^ - i. 2.26.
18. Whether they who fuffer by Reprizals made^ can have }^ i. 2. 27.
Contribiitiony - - - 31.2,28.
Requefl or Requifition.
1. Requifition of Jujlice neceffary between States before! \
Letters of Reprizal granted^ - - \ ^' ^* ■*
2. In England, ena5ied by Stat. 4. H. 5. ch. 7. 14 E. 4. i «
ch. 4. - . . . J '• ^- ^*
5. Letters of Requeji ought to be repeated^ - - i. 2. 11.
Reftkutlon. See Prizes, Property.
1. Who may have Rejiitution of Goods taken at Sea ? andl ^* ^- I3»
what he ought to prove ? - - V i. i. 14.
3 I. I. ,15.
2 . The Opinion of the ancient Romans concerning Rejiitution^ r. 1 . 1 8.
3. Rejiitution ought to be of the Refidue in Cafe ofjuft Re- j
prizals^ - . . - j *•
4. Where Rejiitution may be, or not, of Goods taken by\ ^* 4* 21.
Pirates, - *. . . -^ j i. 4. 22.
C I. 4. 22.
2. 2 5.
I. 4. 21.
4. 22,
4. 23-
Riots. 4$"^^ War.
Romans.
1 . neir Opinion of Rejiitution, - -
2. They were fcrupulous in beginning War,
3. Their Manner of denouncing War,
Royal Fifh) ^c. See Seas 6.
I. i^^jf?/ Fijh driven afJjore, to whom they belong.
^ 1.
I. IS.
I. 21,
I. 10.
I. 23.
2. 4.
^
I.
6. 12.
SAFE-
s
THE TABLE.
Book Chap. §
* s.
AFE-CONDUCT. 5^^ Ambaffadors, Leagues, Treaties.
Sally. See Pirates 5. 6.
Salvage. See Contribution.
1. Where a Ship is lofty and the Goods faved^ they are toi ^ ^ y
fay Salvage^ - - - . J • o- •4-
2. Goods may be detained until Payment of Salvage^ - 2. 5* 4*
Salutations. See Ships 7.
Scavage. See Merchants 6. 7. 8.
Scholars. See Reprizals 18.
Seamen and Sea-Service. See Commanders, Mariners*
^ ' Seas. See Flag.
I. Whether the Sea may fall under the Laws of Property] i.
and Government ? . • - i.
oik 1
I- 5
li 5
5
5
^' 5
2. 16
2, Whether the Sea is capable of Divijion ? - i i' r
3. The Ohje5iion taken from the Inft ability of the Waters^ 1 .
anfweredy
4. The Antiquity of the Dominion of the Britilh Seas de-i i.
dueled, &c. - - ' - 51.
^, Which are meant by the Brkiih Seasy - - i ^'
f I- 5
6. 7*/^^ £^^i57j ^/y5>^ King^s Sovereignty in the Britlfh Seas^ < 2.16
t 2. 16
7. 71^^ Adriatick ^^^ appropriated by the Venetians^ ^ i» 5
2
3
5
I
4
5
7
14
10
14
I
5
13
M m 2 S. That
2'
3-
4-
6.
THE TABLE.
Book Chap. §.
S. T'hat the P^Jfage of the Seas ought to he open ; yet liable i ^
to Reftri^iofis^ - - - - 3 ' '
9. Pajfage ought alfo to he had for Merchandizes^ - 2.16.
10. V/hether ^oU or "Tribute^ and for any and what Caufes^ 1 2. 16.
may be impofed on Goods or Perfons paffing the Seas, 5 2 . 16.
1 1 . IVhere Paffengers ought to he allowed to land^ and a\ ^
temporary Refidence in a Jlrange Country ^ - J * *
Ships. See Commanders, Flags, Freight, Letters of
Marque, Mariners, Mailers, Owners, Pilot, Privateers,
Prizes, Reprizals, Spoil.
1 . IVhere Ship and Lading are obliged to contribute for the 1
Redemption of the Mafter, or noty - - 5
2 . Barratry in a Mafler of a Ship^ whether a Piracy or 1
Felony^ - - - . j
3 . JVhether imprejjing any^ and what Ships he lawful ? j
4. Whether Princes may imprefs Ships in order to traffick 1
with them^ ------ J
5. T^he Penalty where a Ship breaks the Arrefi^
6. Fire-Ships and their Crews, how treated ^
7. Salutation of Ships paid as a Mark of Sovereignty ^ -
8. Salutation of Ships , where paid to the Englifli, or\
Britiili, - - ■ . - J
9. Salutation to the King of Great Britain'^ Ships is a\
Right of his Empire^ - - J
TO. Saluting, how? and by whom to he performed,
11. Negle^ of Saluting, how punifJoable ?
12. Where the King s Ships are to flrike, or not,
13. How ayid on what Therms Ports and F^orts are to he fa- \
luted, - . - _ J
1 4. Of Ships of War faluiing their Commander in Chief,
1 5. Of Salutes to Perfons, of ^ality coming on Board, or \
landing, - - , - _ J
16. Admirals of Foreign Nations, how to he faluted, andi
anfivered P - - - - j
17. Merchant -Men, and Foreign Men ofW^ar, their Sa- 1
lutes^ how anfwered f - - J
1 8 .. The King's Forts, how ? and when or not, to he faltited v
hy his own Ships, • - , y
I. 4.
2. 6.
6.
13-
I. 4.
17-
I. 6,
to Sedl
I.
• 5-
I. 6.
3-
I. 6.
I. 13.
4.
12.
I. 14.
I.
I. 14.
2.
I. 14.
3-
I. 14.
I. 14.
I. 14.
3-
4-
5-
I. i4.
6.
I. 14.
7-
I. 14.
8.
I. 14.
9-
I. 14.
10.
I. 14.
ir.
19.
An
iC I. 14. 12.
^ I. 14. 14.
THE TABLE.
Book Chap. §.
19. y^;/ Ohje5lion againji fight big for Sahitationjfiated and
anfwered^ - - -
^ I. 14. 14.
20. Where a Ship fioall belong to the Builder •, and where 1
to the Owner of the Materials^ - - - j 2. i» 7.
2 1 . Where altering the Property of the Ship does not alter }
that of the Boat y - - - - - J 2. i. JJ.
22. Ballajl is not part of the Furniture of a Ship^ - 2. i. 8.
23. Whether and when a Ship may become a Deodand^ - 2. i. 13.
24. A Ship is naturalized^ then fold to a Foreigner^ who-k
fells her to an Englifhman. She is not to he deemed aL 2. i. 15.
^, Foreign Ship^ - - - - 3
* Slavery. See Freedom.
Smuggling, See Owners 16.
Spies.
I. Their Ufe. They are liable to be put to Death ^ if ap-^^ i. 13. 7.
prehended. By whom ^ and why? - - 31.13.21,
Spoil.
I. Among whom the Spoil of Ships taken^ is to be divided^ i. 2. 22.'
States. See Commonwealths, Princes.
Subfidies. See Cuftoms, Excife.
1. Whether Impofitions may he laid without Authority of \ 2. 12. i.
Parliament^ - - - J2.12.-3.
2. Subjidy defined. The Kinds of Subfidies. Howimpofed'i 2. 12. 8.
and after tained ? - - • - 3 2. 12. 10.
3. Rates extraordinary on Wines to be paid by Strangers^ 2. 12. 9.
4. Goods not rat ed^ how to pay f - - 2. 12. 10.
5i The Subjidies for Cloths^ - - 2. 12.' 11.
6. Allowances to Merchants for ready Money y - 2. 12. 11.
7. Impofitions on French ShipSy &c. particularly, - 2. 13. i,
8. 0« Vinegar^ &c. Logwood, - - 2. 13. 2.
9. Impofitions on Ships not being of good Force ^ - 2. 13. 3.
M m 3 10. Further
T H E T A B L E.
10. Further Duties on various Goods imported,
11. Navigation Duties^ what? - - - 2. 13
12. Duties on Goods export ed^ - * . 1
13. Foreign Coin, Bullion^ Diamonds, &c. may he eX'-h
ported Duty-free, - - - - - 5 ' ^
14. Spices, by whom may he imported, - - - 2. 13
Book Chap. §.
6.
7-
6.
9*
xo.
10.
II.
T.
fTp ALES. See Aliens.
Tare and Tret. See Merchants 5.
Toll. See Seas 8, £s?r.
«■
Trade. See Bottomry, Cuftoms^ Freedom, Merchants^
Trading- Voyage.
I. jd Trading- Voyage defer ihed^ - r 2. 4. 7«
Travellers. iS"^*? Reprizals i8.
Treafon. f?^^ Commanders 1 7.
Treafure. See Seas 6.
Treaties. ^^^ Leagues, Neuters, Truces.
1. Not to he violated by Privateers, - - - i. 3. B,
2. Trfj/>'-M<3n7f^ ^'f/Z? //^^ Dutch, j December 167-4. ( ' ^' ^
cited, - '- - " / 1^
Lv;
3- 9-
3. II.
3i
3. Tr^^.//>j w/z/i^ ^^/'Jt'^^« England «?;/i Tunis, /2;zi Eng- 1 t a j-
land end Tripoli, - - - J ' ' '
4. Treaties providing for the Honour of the Flagy - i . B' 9^
. T/:?^ Ends or Ufcs of Treaties, - r 1. y, i
6. //^zy
3
THE T A B L E.
6. How the Propojitions or Overtures for 'Treaties are made^
7, Some Treaties carried on by Commiffion^ fome by Inter- 1
view. The Danger of Interviews of Princes^ - 3
9. Perfonal Treaties ufually carried on under feigned Pre- \
tences, - - • * 3
10. Of Ceremony received and paid on Interviews between \
Princes equals - - - - j
He Of Ceremony on Interview between Princes unequal,
12. Treaties are either fe ere t or open. Ends offecret Trea- \
ties, - - - - J
13. Ratification of Treaties y its Neceffity,
14. Which are the proper Places for treating,
1^, Where it may be infified, that a Prince fball treat per- 1
finally with the Minijler of another, - 5
16. Of Ceremony or Precedence among Minifters at Trea- 1
ties, - - - - 3
17. The Commlffions or Powers of Ambaffadors to be con- j
fidered, whether full or not. Advice for the Condii^ at >
the beginning, . - - - 3
18. Of Treaties of Alliance equal and unequal, offenfiveY
and defenftve. Their Ufes, Sufpenjion, and Diffolution, 3
19. Leagues ought to be inr oiled in Chancery, - <
20. Leagues ufually contain fecret Articles, - -
2 1 . The ufual Intents of making Leagues, " ' \
21. Of Leagues for Mediation, or to procure a generals
Peace with Guarantees, - - - 3
22. Matters proper to be conjidered with refpe5l to Leagues 1
offenfive and defenfive, - -3
23. Defenftve Leagues liberally conftrued in favour of the 1
opprejfed, - - - 3
24. Contribution is a principal Matter in Leagues, and is 1
difficult to be regulated, . - - _ j
25. Where Leagues are made by Minijler s, Difficulties f
fometimes arife about ratifying them -, and with what V
Views, - - - - "J
26. Reafons why Leagues for Enterprizes feldom anfwer 7
Expehation, - - - - 5
27. The ufual Caufes of the Breach of Leagues, -
Book Chap. §-
?■
7-
7'
7-
7'
7'
7'
7-
7'
7-
7-
9-
7-
7-
7'
7'
7-
7-
7. 21,
7. 22.
28. JFhere
THE TABLE.
Book Chap. §.
28. Where Confederates are to afford mutual Succours^ or\ i. 7. 23.
;/<?/, - - - - 5 I. 7. 24.
29. Where Succour may he afforded^ Mediation havings
failed of Slice efs^ - - - 3 '
30. Whether and in what manner a Sue ceffor is hound ; and \
when ? ^ - - -J *
7. 24.
7. 25.
31. Whether Leagues re-main valid^ when the Prince with } h iG
whora 7nade is driven out cf his Country, - 3 '
32. Leagues fnade zvith Kings d^f ^3:0 are valid^ - ..,.>}' 7* ^6.
33. Treaties may l^e made with Infidels^ ^ "- - 5 •4-4*
34. jT/je Nature of unequal AlUances with refpe5i to Pro- j «
teElion, &:€. - - - 3 ' ' '
35. Prote^ion is either-Voluntary or mercenary '<i remote or ^ i. 8. 2.
;^^<^r, - - . - - 5 I. 8. 3.
-^6, The mutual Obligations hetzveen the Prote^for and the j ^
ProteEied, - ' - - J i- «• ^4^^
Q^*]. Ruptures of unequal Alliances, how ordinarily occ a- y^ ^
fioned? and the Remedies and Judges, - ' '-' 3 * * 5*
38. Extraordinary Caufes of the Breaeh of unequal Jilt- ? j o /:i
anees, -. , - - - 3 ' * J
39. The givi/ig of Hoflages, its Effe^, - - - i, 8. 7
40. The Siihje^ making a Promife without a Cominiffion, \ ^
does not hind his Sovereign, - - - 3 * '
41 . Whether the Contra^ s of Princes are void or voidable 1 to
for Force or Fear ? - - - 3 * '
42 . Leagues fometimes broken under Colour of ambiguous 1 ^
Words in the Treaties, but the fair Conjiru^ion is moft> ' o' ,
honourable, - - . - 3 ' '
4.:>. Whether Treaties with Princes or Republicks be mofl 3 q
^^ r > I. O. 10
. jirm, - ' - - ■ 3
44. Whether Breach of League on the one Party, jufiifies 3
8. II
the Departure of the other,
45. What are the true and fair Rules in conflruing Trea- 11. 8.12
ties, vid. fupra 42. - - - J i. 8. 14
46. Exceptions tacitly implied in Treaties, which may avoid 3
or nullify them, - - - 3
47. Treaties with Enemies are either teriiporary or per- 3
petual, . - - - 3 '
48. Temporary Treaties {or Truces] are either general or ^
particular^ - - - Z ^
8. 13
I
I
Trial
THE TAB L E.
Trial.
1. Whether Time of War ^ or noty how iriahle f
2. Whether a Ship be Prize^ or not^ where triable f -
3. Where a Trial Jhall be in the Admiralty^ and where at
common Law^ -
4. Trials by Medietas Linguae, were formerly by Grant ,
but -afterwards were extended by Ah of Parliament^
5. On Trials per Medietatem the Aliens need not be of the
fame Country^ - ^
6. The Form of the Writ of Medietas Linguae, and how
it is to be executed^ -
7. Where both Parties Aliens^ the Jury to he ^^//Englifli.
The like in high Treafon^ &c.
8. He that would have the Trial per Medietatem, &:c.
mujl pray it^ and when ? - - ^
9. Tales, how grant able on the Trial ip^r Medietatem Lih-
^ gu^ ?
' 10. In what Cafes Aliens fhall have Medietas Linguae, or
not^ - - - -
1 1. Treafons committed in Ireland, triable in England,
12. A Renegado cannot be a Witnefsy
Tribute. See Treaties.
Book Chap. §.
I
3
3
3
3
3
3
3
3
1
2
6
10
4
4
4
4
4
4
4
4
9-
21.
12.
14.
I.
2.
2.
3-
5-
6.
7-
8,
Tripoli. ^^^ Pirates 5. 6.
I , Treaty made between England and Tripoli.
Triumphs. See Commanders 23.
Truce. See Treaties.
1 . Truces defined and divided^ - -
2. Conditional Agreement for an Ally in making a Truce^
3. Truces which hold the Place of Peace ^
4. Whether Treaties of Truce ^ or perpetual Peace ^ he leafi\
. liable to a Rupture^ - - - J
5. Truces fometimes made to promote a Peace^
6. Whether a Truce can prejudice the Pretcnfions in the 1
Principal^ - - - - ^
I. 4. 4.
I. 9. I.
I. 9. 2.
I. 9. 3.
I. 9. 4,
I. 9. 5.
I. 9. 6,
Statutes
T H E T A B L E.
Book Chap. J.
7. Statutes in England concerning Breakers of Leagues \
andl'ruces^ - - - \ - 9* 7*
Tunis. See Pirates 5, 6.
I. treaty made between England andTums^
Tunnage. See Subfidies.
I. 4. 4.
V
V.
r ACANCIES. See Occupancy.
Venice.
I. Its Gulpb defcribed. ne Dominion thereof appropriated^ i. 5. 13*
Voyage. See Mariner, Mailer, Owner, Ship, Trading- Voyage,
Ufury. See Bottomry, Exchange 6, 7.
Utility. See Dominion, Occupancy.
\
m
W.
AGES. See Mariners 19, 20, 21, 22.
ti^^
n
War. See Dominion, Letters of Marque, Prizes,
Property, Reprizal.
I . yljuft War undertaken by a Sovereign^ may divefi Pro-
perty or Dominion. How ? when ? and in what Pro-
portion ? • - -
2. What arejuji Caiifes of War ^ or not?
I, ft ^, .^
U 12.
I. 25.^5
13. 10.
bid.
I. 10.
I. 24.
14. 16,
14. 17.
3. Pub lick
THE TABLE.
Book Chap. §.
6.
d
}
}
3. Puhlick War is folemn or lefs folemn.
4. Solemn War^ what ? ^ - \
5. Lefs folemn^ or unfolemn War^ what ? ib
6. What Magijirates have Power {or a Right) to wage 1
War, - - - J
7. How the Time of War is to be tried by the Laws ^/Eng-
land, - . - -
8. Where Enemies may he attacked, or not ? - y r^ ^
9. How Enemies are to be treated in England at the Be-
ginning of a War, - - -
10. The Goods of Enemies may be fpoiled,
1 1 . Whether a Denunciation of War is necejfary by the 1
Law of Nature ? - - - 5
12. Where no 'Denunciation and a neutral Power furnifhes 1
Contraband Goods, - - - 3
13. Interpellation, its Ufe^ . - ■
14* Of Acceffories in a War ; and the Confequence of a'k
Denunciation with refpe£f to them, - J
15. Why Denunciations of War were ufed,
16. To fupply any Enemy with warlike Stores, ajuji Caufe 1
of War, , _ - - ^ ■ J
17. Whether a neutral Power may not infome Cafe ajjifi'%
one of the Parties ? - - - J
18. Whether there be any Right of War againfl neutral 1
Powers? - - - J
19. Of giving garter, * " /
20. Ships and Soldiers are to affift each other againfl the 1
Enemy, . - - j
21. Rules concerning Pur fait, and to moderate the Fury ^ i. 13, 17.
of the Sword after a Vi^iory, - - J i. 13. 18.
22. Keeping Faith ufeful to prevent Wars, - i. 14. 17.
^l. Moderation recommended, - - i. 14. 17.
Water-Baillage. See Merchants 12.
Weighage, Weights and Meafures. See Cuftoms 8. Mafters 5.
Wharfage.
7-
9^
7-
8.
9-
16.
24,
17-
19.
20,
21.
20.
20.
22.
24.
24.
12.
13. 16,
THE TABLE.
Book Chap. §.
Wharfage.
• * - '
1. What it is, - - - 2. 9. 4.
4.
9- 5'
2. Wharfinger y when anfwerable^ or net, for Goods , \ ^ ^
Wreck.
I. The Admiralty has not Jurifdi5fion of it. Whenl i. 6. 12.
5 2.
2. Whether the Property of Goods wrecked he altered? and
when ? ' *• - -
C 2.
ctherwife, - - - 5 2. 5. 6.
2. 5. i»
5- 3-
5. 4.
2. The Pmijhment of Jlealing Goods wrecked', of putting -I 2. 5. i.
out falfe Lights J &c. - - - 5 2. 5. 2.
f 2. A, 2
4. G^^^J wrecked are to he preferved and rejiored, &c.\ 2' ^
What not Wreck by the Laws of Oleron ? - \ "i k ±
5. When a Ship fh all he faid to be dereli£f^ fo as to lofel 2. 5. 4,
the Property, or not ? - - - - 3 2. 5. 7.
6. The King*s Prerogative as to Wreck, Flotfam, Jet-5 2' f* f
fam, andlj^an, - - - / ^* ?' o*
' ° ' C 2. 5. 8.
7. Wreck, what it is ? and what will pafs by a Grant cf\ ^
it. What will not pafs it ? - - \ '^^ S* ^^
8. Wrecked Goods, how to be claimed, &c. - - 2. 5. 8.
5, Wrecked Goods, whether liable to Cufloms. The Reafons \ 2. 5. 9.
for the Negative. The Negative refolved, \ 2. 13. 11.
10. The Claim of the Admiral to Wrecks ', whether good y^ 2, 5. 9.
;« /^(? Ifle of Wight, ^c. - - - - 32. 5. 10.
11. JVhenthe Mafieristomake goodtheLofs, or not, . 2. 5. 10.
FINIS.
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