to the most honourable assembly of knights, citizens, and burgesses of the house of parliament the humble petition of the adventurers in the ship called the pearle. pearle (ship) approx. kb of xml-encoded text transcribed from -bit group-iv tiff page image. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a stc estc s ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) to the most honourable assembly of knights, citizens, and burgesses of the house of parliament the humble petition of the adventurers in the ship called the pearle. pearle (ship) england and wales. parliament. broadside. s.n., [london : ?] a complaint that they have been deprived of their goods or the value thereof since april .--cf. ( nd ed.) place and date of publication suggested by stc ( nd ed.). reproduction of original in the guildhall library (london, england). created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the , texts created during phase of the project have been released into the public domain as of january . anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng pirates -- east indies. maritime law -- cases. - tcp assigned for keying and markup - aptara keyed and coded from proquest page images - mona logarbo sampled and proofread - mona logarbo text and markup reviewed and edited - pfs batch review (qc) and xml conversion to the most honourable assembly of knights , citizens , and burgesses of the house of parliament . the humble petition of the aduenturers in the ship called the pearle . hvmbly shewing : that shee departed out of the port of london in nouember . and returned two yeeres after laden with goods , to the value of .li. vpon the . of nouember . before the goods came to london , morris , one of the aduenturers , was sent for before diuers of the lords of his maiesties councell , who deliuered that the spanish embassador had made a great complaint to his maiestie , that the pearle had beene in the east indies , and rob'd the king of spaines subiects , desiring therefore that the goods might be sequestred into his maiesties custodie ( as indifferent betweene the embassador , and the aduenturers , vntill the point of piracie was tryed . morris answered he neuer was pirate , but a merchant , and had paid the king many thousands for custome and impost ; and yet if he were , the law of england was , that giuing securitie , he was to possesse the goods vntill the law had tryed the title ; but this would not be granted . but their lordships ordered that the goods should be put into ware-houses ( the weights and contents first taken by morris ) vnder three locks , whereof his maiesty had one key committed to sir lionel cranfield and sir arthur ingram ; the embassador another key ; and morris a third key : and if by law they appertained to him , god forbid ( said the earle of northampton ) but they should haue them . afterwards the cause was brought into the admirall court , and in aprill . after seuerall daies of hearing of the same , before sir daniel donn , knight ; and doctor treuor doctors of the laws , chiefe iudges of the said court ( in the presence of master manning proctor for the embassador , and francis fowler sollicitor for his lordship , and of iames ireland proctor for morris ) it was vpon the . of the said month of aprill ordered , that the goods so sequestred , should be prized , and sold by the publique officers of his maiesties exchequer , or by any other that were able at the full value with all celeritie that might be , and the moneis arising thereof to be sequestred , and safe kept in the hands of sir lionel cranfield , and sir arthur ingram knights , they giuing fit caution to pay the moneis to the true proprietors . but vpon the . of the said month of aprill . sir arthur ingram came before the said iudges , and altogether refused , both for himselfe , and sir lionel cranfield , to giue any caution for the said moneis , as they had ordered them to doe : whereupon the iudges the same day ordered , that the said goods should be by sir lionel cranfield and sir arthur ingram , prized , and sold to such as would giue most for the same ; and that the moneis thereof accruing , should be deposited in safe keeping in his maiesties receipt at westminster , for whom right had . that in aprill . the said cause receiued finall hearing before the right honourable sir iulius casar , knight ; sir daniel donn , knight , chiefe iudge of the admirall court ; sir iohn crooke , knight ; and diuers others his maiesties iudges of the admiraltie of england : where the point of piracie was legally acquitted , and discharged by proclamation . since which , they haue often attended the lord embassador of spain , that as he was the author of this their misfortune , so he would be pleased to get them restitutiō of their said goods , or the moneis they were sold for , with such damages as they haue sustained for want thereof : from whom , they haue receiued many faire and hopefull answers , and in truth neuer went from his lordship vnsatisfied with strong assurance to effect their request within some short time after : and in these hopes they haue spent many moneths , but yet no reliefe thereby , but they , their wiues and children still suffred to languish in great miserie ; besides diuers others to whom they are indebted , are also like to be vndone , for that the petitioners are not able to giue them satisfaction , by reason their goods are kept from them as aforesaid . that they haue likewise diuers other waies endeuoured to haue restitution of their goods , or the true value thereof , but neuer could obtaine the same , nor certainely vnderstand how they haue beene disposed . therefore the humble suite of the complainants is , that this honourable house will be pleased to take into their considerations these points following , as well for the reliefe of the complainants , in restitution of their goods , or the true value , with such further damages , as they haue sustained for want thereof , as for the generall good of the people . whether the goods were sold to the full value , and according to the true intent of the order in the admirall court. whether the moneis they were sold for , were deposited in his maiesties receipt at westminster , or what is became of them . and whether it be not a iust grieuance to the common-wealth , that vpon complaint , and suggestion of piracie by any forraigne princes minister , the subiects , by strong hand , and powerfull proceedings , should be kept from their goods , and the moneis they were sold for , after the point of piracie legally cleared , and acquitted by proclamation , as the complainants haue beene euer since aprill . and if these , or any of them shall in the high wisedome of this honourable court be found to be grieuances ▪ then , the complainants humbly pray , that they may be relieued therein , as the iustice of their cause shall require . notes, typically marginal, from the original text notes for div a -e heerein the petitioner was debarred of the benefit of the law , as he conceiues . the key of the ware-house morris had , yet the locks were broken open , the goods carried away , and sold without his priuitie . of these goods , to the value of . li. were deliuered to the spanish embassador , who was to giue securitie to pay them to the proprietors , if the suggestion of the piracie made by his lordship was acquitted , but yet they neither haue the money , nor the securitie . that after the piracy acquitted , so much of the goods as came to . li. or thereabouts , were sold , and the moneis disposed of without their consents . synēgoros thalassios, a vievv of the admiral jurisdiction wherein the most material points concerning that jurisdiction are fairly and submissively discussed : as also divers of the laws, customes, rights, and priviledges of the high admiralty of england by ancient records, and other arguments of law asserted : whereunto is added by way of appendix an extract of the ancient laws of oleron / by john godolphin ... godolphin, john, - . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a wing g estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) synēgoros thalassios, a vievv of the admiral jurisdiction wherein the most material points concerning that jurisdiction are fairly and submissively discussed : as also divers of the laws, customes, rights, and priviledges of the high admiralty of england by ancient records, and other arguments of law asserted : whereunto is added by way of appendix an extract of the ancient laws of oleron / by john godolphin ... godolphin, john, - . [ ], , [ ] p. printed by w. godbid for edmund paxton ... and john sherley ..., london : . title transliterated from greek. "an extract by way of appendix of the ancient laws of oleron" has special t.p. reproduction of original in british library. "a series or catalogue ... of such as have been dignified with the office of lord high admiral in this kingdome, since king john's time to the reign of king charles the first of blessed memory": p. - . marginal notes. includes index. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the , texts created during phase of the project have been released into the public domain as of january . anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng admiralty -- england. maritime law -- england -- early works to . maritime law -- france -- early works to . admirals -- england -- directories. oléron, ile d' (france) - tcp assigned for keying and markup - apex covantage keyed and coded from proquest page images - emma (leeson) huber sampled and proofread - emma (leeson) huber text and markup reviewed and edited - pfs batch review (qc) and xml conversion ΣΥΝΗΓΟΡΟΣ ΘΑΛΑΣΣΙΟΣ . a vievv of the admiral jurisdiction . wherein the most material points concerning that jurisdiction are fairly and submissively discussed . as also divers of the laws , customes , rights , and priviledges of the high admiralty of england by ancient records , and other arguments of law asserted . whereunto is added by way of appendix an extract of the ancient laws of oleron . by john godolphin , ll. d. — littusque rogamus innocuum . — virg. aen. . london , printed by w. godbid for edmund paxton over against the castle tavern neer doctors commons , and john sherley at the pellican in little brittain . . to the reader . he that negotiates about maritime affairs , is under protection without letters of safe conduct , as being within the sanctuary of jus gentium ; and the right timing of a modest address oft times proves more successful then a confident argument out of season ; there seems some probability , as if this treatise obtrudes not upon the world , or thy patience , like a tract borne out of due time ; nor as if it came like a physitian to his patients funeral ; or as suetonius relates touching the deputies of troy , sent to condole with tiberius seven or eight moneths after the death of his sons ; if this treatise be out of season , others as well as my self are happily deceived ; in which case it will suffice to say with philip de comines , that it is very hard for a man to be wise , that hath not been deceived . for the method , it is as regular as the arguments would afford ; though not so exact as might have been , if the same metal had been cast into another mould ; yet not so rude and out of shape , as to suspect from the disproportion of the body that the soul is ill lodged , or like some long-breath'd confused discourses , of late much in fashion , whereof it may be truly said as was once of the romans two ambassadours sent to one of their provinces , whereof one wounded in the head , the other lame in his feet , mittit populus romanus legationem , quae nec caput nec pedes habet ; and which for their prolixity and immethodicality may justly expect the same answer that those of lacedemon gave the samnites , that they had forgotten the beginning , understood not the middle , and disliked the conclusion . the subject-matter of this treatise is not so much de jure as de jurisdictione admiralitatis angliae , not so much touching the law of the admiralty or sea-laws , as now received and practised in the navigable parts of the world , as in reference to the jurisdiction of that law within this kingdome of great brittain ; so that it will on all hands be eafily agreed , that the argument of jurisdictions is quaestio admodum subtilis ; and no wonder , if you consider , that that which is de competentia judicis & jurisdictionis , is totius juris velut obex & repagulum ; but 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and zeal for the publick facilitates the highest difficulties . to leave the laws sub incognito , or jurisdictions sub incerto , are both of national ill consequence , subjecting the people either to transgression through ignorance , or to unnecessary expences by multiplicity of law-suits . lux , lex , & veritas , are almost synonimous ; if either of these suffer , though but a partial eclipse , how great is the darkness thereof ; if a jurisdiction , without which the law is but as a dead letter , be uncertain , how great is that uncertainty ? but the liquid and clear stating and ascertaining of jurisdictions to their proper and respective boundaries , beyond which one may not pass to the invading of another , is one of the primary constitutions of jus gentium . this short view of the admiral jurisdiction was in its origination designed only to prevent a vacuum inter alia negotia , and not to hazard the censure of a superfluum inter aliorum otia . and although a great part of this fabrick , be laid on a foundation of civil law , yet in regard it is an indispensable duty which every man owes his native countrey , to keep , as much as may be , sub incognito , from strangers and forraigners abroad , what possibly may not be absolutely perfect ( for there is no perfection under the sun ) quoad modum procedendi at home , sumus enim surdi omnes in linguis quas non intelligimus ; and in regard this treatise must recite the very letter of certain clauses of several acts of parliament , transactions of state , and book-cases of common law ; and in regard the satisfaction of merchants and mariners was the main motive and design of emitting this to the opinions of men ; for these reasons it could neither properly nor profitably speak the ideum of that law , which is no less adequate to the admiralty , then currant over all the christian world . the just rights and customes of the jurisdiction of the admiralty of england , are here with submission asserted , and consequently therein many of the priviledges of merchants and mariners ; and not only of those who have a birth-right to england's laws of the admiralty , but also of all such , who negotiating with us , have a right thereto by the jus gentium , and national treaties . the merchant is bonum publicum , and such is that nations interest whose merchants do flourish , that to gratifie them with all possible immunities and due encouragement is now become the common policy of all such kingdomes and states , as reap more treasure from their ports then pastures . it was most true what seneca once said of them , mercator urbibus prodest , medicus aegrotis ; without whom a communalty or civil society of men can scarce plentifully or honourably subsist . it was a saying with baldus , that famous civilian , that the world could not live without merchants . whence it may be rationally inferred , that that nation is nigh drowning , whose merchants are under water ; their function being to import necessaries , and to export superfluities ; if therefore such marine controversies as arise between merchant and merchant , or between merchant and mariner , should be removed from the cognizance of the admiralty ( whereof there is now no fear ) ad aliud examen , it might prove no fallible index , but that our trade and commerce in too sad a measure might also in some short time after be exported ad aliam regionem . here therefore is the merchant and the mariner insisting not for any thing more then what is according to the known laws of the land , and the ancient established sea-laws of england , with the customes thereof , so far as they contradict not the laws and statutes of this realm , it will not be denyed , but that jurisdictio originaliter radicata est in principe , & ab eo descendunt iudices sicut rivuli à fonte suo . the decision of the rights of jurisdictions resides not in any persons of a private capacity , but in that power that creates and constitutes jurisdictions ; that is , the prince or chief magistrate , as the supream source or fountain of all humane laws and judicatories . reader , it seems something difficult to determine whether the sophistication of truths , or the fucus of errors hath of late years been the more epidemical cheat in print , it being sufficiently notorious how that adulterous generation went a whoring after the press , and what a noisome spawn of illegitimate brats were then generated of the froth of the brain , not less numerous then spurious , that neither their male-content parents , nor religion , law , reason , nor charity are able to maintain . and although this treatise be of a more generous extraction , yet it is very far from complementing it self with the least vain hopes of exemption from those censures which are common to all men . it is worth an asterisk to observe how infeazable it hath been in all ages for the most innocent to escape this correction ; aristotle that prince of peripateciks , was accused of being too obstruce and obscure , and in many things labours under galen's reprehension ; the dialogues of divine plato are taxed for being too confused and immethodical ; virgil by some is counted but a shallow and weak witted poet , and by others charged as if he were wholly beholding to homer for his works ; and homer himself is derided by horace , as if he were too drowfie a poet ; demosthenes could not please marcus tullius in all things ; trogus pompeius doth accuse titus livius his orations of fiction and falsities ; seneca was nick-named , and called lime without sand ; pliny is compared to a turbulent river that tastes of many things , but digests few . but to come home to the worthies of the civilians profession ; for even the most orthodox oracles of the civil law have not escaped such undue reprehensions ; as some have affirmed that accursius had no depth of judgement ; others reprove bartol for the length of his distinctions , as if somewhat too monstrous by having too many members ; on the other side albericus is blamed for too much brevity ; baldus for inconstancy and instability of judgement ; alexander for the perplexity of his method ; and both the raphaels for their too much subtilty , in some things for their neglect of and carelesness in the more polite literature , in other things for their non-citing and mis-alledging the doctours ; and in a word , those very ancient and most famous lawyers , that by the profoundness of their judgement and splendour of their eloquence have so illustrated the dark and obscure places of the civil law , as that they nave left the world just cause of admiration , no hopes of imitation , even these have not escaped the like mis-reprehensions ; for in the life of iustinian , perinus ( out of suidas ) hath a large invective against tribonian , that architect of the pandects ; besides , who more eloquent then ulpian ? who more pithy then paulus ? who more learned then callistratus ? who more acute then papinianus ? who more distinct , and withal succinct then scaevola ? who more free and fluid then caius ? who more profound then africanus ? who more delightful and satisfactory then pomponius ? who more clear and transparent then celsus ? who more candid and ingenious then triphonius ? yet all these in their respective and incomparable works have met with the said undue reprehensions . if this therefore shall chance to meet with some waspish humours , we must consider the climate ; nor is it more then wants a president , or less then needs a charitable construction ; which is the worst revenge can possibly be executed by such as chuse rather to suffer then offend . j. c. the introduction , or , preface to the ensuing treatise . the systeme of jurisdictions is , as the law it self , above the notions of any private conception ; he is something more then of a singular invention , that thinks he can arraign the verdict of all ages , nihil dici queat quod non priue dictum fuit ; and he is more then of an audacious spirit , that dares invade the laws prerogative , nihil proferri debet , quod non prius constitutum fuit . hence it is , that he that writes of that subject without book , that is , that vents his own notions , or sails by the weather-cock of his own brain , not only consiscates the ill-stowed cargo of his intellect , but also renders himself no less arrogant and presumptuous in the tacite apprehensions of the prudent , then shallow and ridiculous to the most rural capacities . it is therefore nothing dishonourable for treatises of this nature to merit the application of that liberty which chrysippus took , of whom it is said , that he borrowed so freely from authours , that if his name were but expunged or obliterated out of the title page , there would nothing remain that could properly be called his own ; it is neither heretical nor disingenious to accommodate old truths to new designs , so it be done aptly and honestly & sine animo furandi : for there is that credit by way of debt due to the authours , that it is no less then theft to conceal them , whereas one half of the debt is paid , if you duly quote them ; yea , they become your debtours , if by the ingenuity of your husbandry you raise their credit according to the improved value ; but he that conceals the patrons of his assertions , is ashamed of his own craft , robs the dead , and ch●ats the living . he that writes politicks without prefixing his principles , comes short of his duty ; but he that writes law without quoting his authority , presumes beyond his line ; he that blushes to be ingenious , is ashamed of his own modesty ; plato borrowed many things from pythagoras ; aristotle from plato , and theophrastus from aristotle ; this treatise hath borrowed nothing but what it intends to pay , here 's the acknowledgement of the debt , full satisfaction with interest may be expected elsewhere , sufficient caution being given in the subsequent elenchus of the creditours . as reason is the soul of the law , so jurisdictions may be styled the faculties of that soul , being reduced to act or exercise as they are accommodated to this or that object ; consequently therefore to confound jurisdictions , is to obliquitate the rule of all humane actions , specially if any thing less then bonum publ●cum , under a vizor be the authour of that confusion . mine and thine divide the world betwixt them ; in private transactions they are unhappy monosyllables , but in publick affairs they may be of most dangerous consequence ; insomuch that seneca said , the world would be quiet were it not for those two ambitious pronouns . a this meum & tuum is here understood collective , for jurisdictio being of publick right is not competible with any private interest exclusive to common good , b that being beside the design of jus gentium , whereby jurisdictions were originally constituted . c the flux and reflux of jurisdictions are from and to the prince as rivers from and to the ocean , wherein transactions of the greatest weight and burden are navigable ; and therefore to obstruct the current of justice in this or that channel , may force open the sluces of the law to a cataclysme of injustice , and dissolve the ligaments of the best jointed body politick in the whole world ; and yet if the streams of one jurisdiction , running too rapid , over-flow its banks to the inundation of another , it 's most just and safe , seasonably to reduce them to their proper channels . were it true what bald. says , d jurisdictiones penes principes residere quasi scabellum , the clashing of jurisdictions might be an offence only to the footstool of majesty ; but if jurisdictio ejus ossibus inhaeret , as tapia and others assert , e then it may be of an higher nature . where divers persons are concredited with juridical trust or authority , there the jurisdiction is either separate , or concurrent , or in common . a separate jurisdiction may appertain to a certain number of persons privative or exclusive to all others , whereby they are externally qualified to take cognizance either of other persons , f or of other causes , g or of other quantities , h or of other places , i then what other judges are juridically qualified for . a concurrent jurisdiction is that which appertaineth to many cumulative , as when the same cases are equally subjected to the cognizance of many judges : yet so that each of them , whether one or more , by himself or themselves , may in solidum hear and determine the case , and he or they only may take cognizance thereof to whom address by the complainant is first made , and before whom the suit is first commenced , for in such cases prevention takes place ; and in all competent jurisdictions wherever the action is first commenced , there judgement ought to be given in the case . l thus the emperial chamber by an ordinance there made hath concurrent jurisdiction with the emperour himself , m save in matters relating to the fee or inheritance of the emperial crown . a jurisdiction in common appertaineth to many , and that cumulative , as to all of them , so to all of them together , and complexive ; insomuch that one of them may not proceed without the other , the law obliging all of them to be present together in judgement . n but whatever jurisdictions there are in a nation , of how many kinds , degrees , orders , or subordinations soever , this is a sure rule and without exception , jurisdictiones non sunt confundendae ; o the bonum publicum is more rationally stated , and more concerned in rhe equal administration of justice , then to admit the least confusion in that which is the only expedient to prevent confusion ; for justice ( whose office it is not only to doe that which is equal , but also to remove that which is unequal ) is never illustrable through any mediums that hath the least tincture of injustice ; and although for its material object , it ever hath some one external action or other , as suppose equality between payment and debt , yet for its formal object it ever hath honesty and conformity unto , at least an adequate consistency with natural reason , comprised in that external act. of all jurisdictions , that of the admiralty or sea-affairs hath been the least beholding to the auxiliaries of the press in defence of its ancient rights and priviledges against such as would without offence impair the same ; the reason probably may be either from the paucity of such , as are more specially therein concerned , in respect of that numerous host or retinue , that in fealty to the other jurisdictions are most prompt notaries on all occasions ; o● rather in that it is of that excellent use in all maritime dominions , that the friends thereof are well assured , its worth would be better valued , if the want thereof were more smartly felt . the ensuing treatise is to assert the rights thereof in part , the design of whose highest ambition being only rather to excite others by this hint to supply the defects hereof by a more full and clear illustration of the rights and priviledges of so ancient and necessary a jurisdiction , then to convince any by arguments less perswasive then that interest whereon some me●s prejudice may be founded . though merchants and mariners qua tales be not such able lawyers as to know how their maritime cases should be determined according to the exact rule of law , yet they are such able supports to any nation or kingdome , that they are not to be left sub incerto , where or in what tribunal to find that rule under such a quality of juridical competency , as not to run hazards by land as well as by sea ; yet this under the notion of a maritime cause , when possibly it is of another element , may not be strain'd in favour of one jurisdiction in derogation of another ; nor under the notion of merchants , when posibly they are at best but quasi mercatores ; for not every one that buyes and sells , is thence presently to be denominated a merchant , but he only who in the way of trade and negotiation deals in moveables for gain or profit , upon design of disposing thereof in the way of commerce either by importation , exportation , or otherwise , in the way of emption , vendition , barter , permutation or exchange . p so that he is not properly said to be a merchant , who once and no more doth buy commodities that he may sell the same , for it is not one act that doth denominate a merchant , q but a certain assidutiy or frequent negotiation in the mystery of merchandizing , unless he be matriculated or entred as such in the society or corporation of merchants . he also may be said to be a merchant , who by common fame and in the opinion of men is commonly reputed a merchant . r they that buy wares or merchandizes to reduce them by their own art or industry into other forms then formerly they were of , are reputed rather artificers then merchants ; s unless by their order they are so transformed by the art and industry of others upon design of selling the same to gain thereby , in which case they may be said to be rather merchants then craftsmen or artificers . and such as buy wares for present money , that without altering the form thereof they may sell the same at a future day of payment at a far dearer price then they were bought , are reputed rather usurers then merchants . t but bankers , money-changers , and such as deal by way of exchange are reputed under the notion of merchants . u for whereas it is formerly said that a merchant deals only in moveables , understand that money is comprised under that notion . w so also are ships . the isle of rhodes anciently was the only mart of trade and commerce in the whole world ; antiquity describes that isle and the city thereof as the only metropolis of merchants ; who , though they have a latitude as wide as the ocean in point of trade and negotiation , yet they may not in time of war transport prohibited goods or commodities to an enemy , though designed for the redemption of captives . x yet such is the reputation of merchants , that credit is generally given , without the least distrust , unto their count-books , unless some legal exception may be raised against the same , or other just cause of suspicion . y and whereas each merchant hath his peculiar mark wherewith his goods are usually marked , by way of discrimination from the goods of other men , the law in favour of so laudable a custome doth presume the goods to be his , whose mark is thereon affixed ; not that such marks , abstracted from other concurrent evidence , do of themselves amount to a full proof ; only they induce such a presumption , as doth ( without stronger evidence or presumption on the other side more energetical ) carry the possession for him whose marks they are ; nor is it therefore less hazardous then unlawful for one merchant to make use of anothers mark , save when in time of war they strain a point to drive a colourable trade , which , with other the like stratagems , the law will interpret no other then solertia or dolus bonus rather then trade shall be totally obstructed , or the merchants quite discouraged ; and where the goods controverted happen to have the marks of both the parties litigant , in that case his is the best condition who hath the possession , till by the other party better cards can be shewed for the property ; a for a presumption grounded only upon the marks must ever give place to a proof of the title or property grounded upon an emption , permutation , or the like . b nor may the plaintiff pendente lite , make use of that mark touching which the dispute or controversie is , till there be a decision in the case . c the interest of the merchant mainly depending on the mariners , it concerns him to know wherein their duty consists ; a right understanding whereof is not with more facility attainable then by a due perpension of those things which the law it self ascribes as faults to mariners ; such in part as these ; viz. the mariner may not set sail when under an embargo or other restraint of princes ; nor in tempestuous weather ; nor after the time limited by contract ; he may not during his voyage in reference to ship or lading , doe ought mis-becoming an honest , able , skilful , and prudent mariner ; he may not stay in port or harbour without cause when a fair wind invites his departure ; he may not deviate in his course without just cause , or steer a dangerous or unusual way when he may have a more secure passage , yet to avoid illegal impositions , he may somewhat change his course and be excusable ; d he may not unlade his merchants goods into another vessel worse then his own ; he may not lade any goods into a leaky or insufficient vessel ; he may not over-charge or over-lade his ship , nor stowe goods above her birth-mark ; he may not sail without able and sufficient mariners , both for quality and number ; he may not voluntarily sail by places infested with pirats , enemies , or other places notoriously known to be unsafe : he may not transport persons of an obscure and unknown condition , without letters of safe conduct , or other suspected persons , to the rendring ship or lading liable or subject to a seizure or surreption ; he may not lade any prohibited or unlawful goods , whereby the whole cargo may be in danger of confiscation ; he may not use any unlawful colours , ensigns , or flags , whereby his ship or lading may incur a seizure ; * he may not , being haled at sea , behave himself otherwise then becomes a prudent master ; he may not carry counterfeit cocquets or other fictitious and colourable ship-papers to involve the goods of the innocent with the nocent ; he may not with his vessel engage among the rocks , being thereto not necessitated by the violence of wind and weather , nor by night deceived or deluded by false lights ; he may not refuse payment of the just and ordinary duties , port-charges , customes , and imposts , to the hazarding of any part of his lading ; he may not sail with insufficient rigging , or tackle , or with other or fewer cables and anchors then is requisite , respect being had to the burthen of the vessel ; he may not sail with other ship-provisions then what is good and wholesome , and sufficient for the voyage ; he may not neglect the well moaring of his vessel in port ; he may not sail without one cat or more in his vessel ; he may not suffer the lading to take wet , to be stoln or embeziled ; he may not permit debates or contests among his mariners , to the prejudice of the merchants goods ; he may not let open the hatches of the ship , to endanger the lading ; he may not prejudice any part of the lading by any indiscreet or unskilful stowing of the goods , respect being had to quantity , nature , and quality thereof ; he may not take up more money upon bomeree or the gross adventure then his interest is in ship or lading ; he may not contrary to order touch at ports , not necessitated thereunto by contrary winds or otherwise . many other are the faults and miscarriages incident to mariners ; these only by way of hint to merchants , who are the greatest sufferers hereby , having herein very seldome equivalent reparation , the offendors for the most part not sufficiently solvant . but here note , that he that will charge a mariner with a fault in reference to his duty , must not think that a general charge is sufficient in law , but he ought to assign and specifie the very fault wherewith he is so charged . e in like manner he that will infer such or such a sad disaster to have happened or been occasioned by reason of some fault in the mariners , must not only prove the fault it self , but must also prove that that fault did dispose to such a sad event , or that such a misfortune could not have happened without such a fault precedent ; f wherein the mariners though legally qualified as good and competent witnesses for acts done a ship-board , g yet to exculpate and excuse themselves , they are not witnesses without exception , save in certain cases wherein the law allows them a toleration by way of juramental purgation ; and in case of loss or damage to the lading or any part thereof by reason of such disaster occasioned by or in consequence of such fault of the mariners , the merchant hath his election in law , whether he will sue the master or the owners of the vessel , h only he can recover but of one of them ; and having once determined his election , he ought to stick to that ; in which case if the master happen to be judicially condemned by reason of any default in his mariners , he may detain their wages till payment be made , and satisfaction given for such damage as he suffered by their neglect ; for they ought by the law to refund it out of their wages . i ships and other vessels of that kind were originally invented for use and profit , not for pleasure and delight ; to plow the seas , not to lie by the walls ; therefore upon any probable design the major part of part-owners may , even against the consent , though not without the privity and knowledge of the minor part , set a vessel to sea , under such provisions , limitations , and cautions , as by the law is in that behalf provided ; yea , the same thing may be also effected by the one party only , in case of equality in partnership . k but in the choice of a master , where there are several part-owners of the same vessel , not always he that is chosen by the major part , but he that is best qualified for that employment , is according to law most eligible and to be preferred . l if a ship be ript up or taken abroad into pieces , with design of converting the materials thereof to some other use , and it be afterwards upon other advice or change of mind re-built with the same materials , this is now another and not the same ship , m specially if the keel be ript up or changed , and the whole ship be at once all taken asunder and re-built ; it is otherwise if it be ript up in parts or taken asunder in parts , and so repair'd in parts ; in which case it remains still the same ship , and not another , albeit it be so often repaired , that in tract of time there remain not one chip of the original fabrick . and although a man repair his ship with plank or other materials belonging to another , yet the ship shall not be his to whom the materials belong , but remains his who repaired it . n it is otherwise if one takes another man's planks or materials prepared for the use of shipping , and therewith build a vessel ; for in that case the owner of the materials shall be owner also of the ship , for the property of the whole vessel follows the keel thereof . o but if one prepare tables and other implements , as for the use of a dwelling house , or the like , with oke or deal belonging to another man , and afterwards with those implements build a ship or other vessel , in this case the ship is his who built the same . p if a ship be bought , together with all her tackle , apparel and furniture , and other instruments thereto belonging , in this case and by these words the ships boat is not conveyed . q and therefore if by reason of any offence the ship happen to be forfeited or confiscate , the said ships boat is not confiscate . r if one doth sell that ship or vessel , wherewith he hath exercised the detestable acts of piracy , whether the parties that suffered loss by such depredations , have any remedy in law against such ship now bought bona fide , or against the buyer thereof now bonae fidei possessor , is a question much controverted ; some are of opinion that he hath no remedy in law , because the ship is a senseless thing , and not capable of offending . s as also , because the buyer thereof ( supposing him not conscious of any such depredations , nor privy to , abettor or partaker thereof ) ought not to suffer being innocent ; t others are of another opinion , for that it is lawful for every man to seize the goods of pirats , u especially for that there lies a tacite obligation on the goods of all offendors for satisfaction ; w whence some infer that the merchants who are so despoyled of their goods , have a legal recourse for satisfaction on the pirats goods wheresoever or in whose hands soever they find them . but the more received opinion is , that whereas it is held lawful for every man to apprehend the goods of pirats and be blameless , it is meant and intended only so long or whilest they are the goods of such pirates ; x unless you can also affect the possessors of such goods with a participation of the same crime . and if any do bona fide , either buy or redeem a ship or other goods from such pirats , he may upon restitution thereof to the true proprietor recover of him the price of such emption or the redemption-money . y if a ship or other vessel by stress of weather or through fear of enemies or pirats , be forced or chased into a port , no duties or customes or other duties in that case ought to be exacted or paid . z in fraighting of ships , respect is had either to the ship it self , or else to a certain part thereof ; as also either by the moneth , or the voyage , or by the tun ; for it is one thing to fraight a ship , another thing to take certain tunnage to fraight ; so also one thing to be the cape-merchant , another to be an under-fraighter ; and the law of fraight ordinarily is regulated by the contract , and varies according to the diversities of agreement , for convention makes law. if fraight be contracted for the lading of certain slaves , cattle , or the like , and some of them happen to dye before the vessel arrives to her port of discharge , the whole fraight is due , that is , as well for the dead as the living . a it is otherwise if the fraight were contracted for the transporting them , in which case fraight is due for no more then are alive at the ships arrival to her port of discharge , and no fraight due for the dead . b if it be not known or liquid , whether the contract were for the lading or transporting them , the fraight is due for the lading , and consequently as well for the dead as living . c if fraight be contracted for transportation of a woman , and she happen during the voyage to be delivered of a child on shipboard , no fraight is to be paid for the said infant . d if such misfortune happen to a ship in her voyage that she cannot proceed therein , the fraight contracted for doth cease in some cases , only for so far and so much of the said voyage as the said ship made before such misfortune , fraight shall be paid . e if the ship by reason of the fraighters fault , as for lading prohibited commodities , or the like , be detained or impeded , he shal pay the fraight contracted and agreed ; f the lading of a ship in construction of law is tacitly obliged for the fraight ; yea , the payment of fraight is preferr'd before any other debts to which the goods so laden are liable , albeit such debts in time were precedent to the said fraight . g if a set time be fixed and agreed between the merchant and the master , wherein to begin and finish a voyage , it may not be altered by the supra-cargo without special commission ad hoc ; nor may the master sail after the time covenanted , without refunding the damage out of his owne purse , in case any happen at sea after the said time . h a promise being made by a master of a ship to to sail venice from the port of london in two moneths , the promise is performed if he begin to sail the said voyage within the two moneths , though he arrive not at venice within the said time . i and the sailing from one port to another , thence to a third , fourth , &c. and so home to the port whence she first set sayle , o● some other port of her last discharge , is all but one and the same voyage , k so as it be in conformity to the charter party . as there is no art more necessary , so none more dangerous and uncertain , then that of navigation ; insomuch that bias the philosopher ( one of the seaven grecian sophies ) had a conceit that navigators and mariners , when under sayle , might not properly be reputed either among the living or the dead ; and plutarch in the life of cato , relates it as one of cato's three penitentials at his death , if ever he conveyed any thing by water when he might have done it by land ; hence it is that the law is so favourable in cases of wreck , and in nothing more consults the reparation of any , then such as by that deplorable casualty are reduced to misery . now no man by the law may be prohibited or denyed the liberty of sayling either upon the seas or any publick rivers . l that is , no man may be denyed that freedome , or prohibited by any private persons , or other who have not jura regalia in that territory , for some princes and states have in all ages exercised that prerogative in this point which no lesser powers can pretend unto ; witness the city of peru , in her concessions , and interdictions or prohibitions , touching a liberty or restraint of sayling on the lake of peru ; as also the like by the venetians as to the adriatick gulfe ; m not here omitting to make an honourable mention of that undoubted soveraignty which the kings of great brittain in all ages have had in the seas thereof . n another duty of merchants and mariners is contribution , which is not onely in the case of goods cast over-board for the lightning of the vessel , but also in case of redemption of ship or lading , or any part thereof from enemies or pirates , o insomuch that if a master redeem the ship and lading out of the hands of pirates by promising them payment of a certain sum of money , for performance whereof himself remaines as a pledge or captive in the custody of the pirates ; in this case he is to be ransomed or redeemed at the costs and charges of the said ship and lading , ratably and proportionably as each mans interest therein doth amount thereunto . p and if there be cash or mony in the ship ; it is not in this case exempt from paying its share of the contribution proportionably to ship and lading , because the master knowing the said money to be a ship-board , was probably the more willing to redeem the ship , though at a dearer rate . in a storm , when the ship is in danger of perishing , it is not lawful for the master at his own discretion , without advice first had with the merchants or their factors or supracargoes , to cast goods over-board for the lightning the vessel , or to cut down the mast , or the like ; but in case they consent not , and the master see cause for it , he may even against their consents do the same , by the advice of the major part of his mariners , who at the end of their voyage are to make oath , that they did the same out of necessity , and only for preservation of ship and lading , and by advice of the mariners : and the master in such case is to take as much care as in him lies , that such goods only be ejected and cast over-board as are of the heavyest weight , and least value ; q for which contribution is to be made , wherein the ejected goods are to be valued as other of the same species are sold for ; and jewels , though of no burthen to the vessel , yet in such case are liable to pay their share of contribution according to their value ; and in such cases the custome of the place is to be observed ; for by the custome of some places the oaths of the master and a third part of the mariners are required , by the custome of other places the masters oath with two or three of his mariners doth suffice . but if only the ship it self , or any of her tackle happen by stress of weather to be damnified , there is no contribution for the same , though the lading be all preserved . r contribution is to be made and regulated in this manner ; first , the goods which are lost or were ejected for conservation of the rest , are to be valued and appraised ; then the goods saved are likewise to be estimated , that so the values of each being known , a proportionable valuation may be contributed by the goods saved , towards satisfaction for the goods ejected , lost , or thrown over-board ; wherein regard is to be had not to what might be got by the goods lost , but what the damage is by the loss thereof ; which are to be estimated not so much by what they might possibly be sold for , as by what they cost or were bought for . though in truth the more received practise and custome is , that the goods saved and lost are both estimated as the saved goods happen to be sold for , the fraight and other necessary charges being first deducted ; and the estimation or computation is to be made by such skilful merchants and mariners as adhere in their judgements and affections to neither party , farther then becomes indifferent arbitrators ; which may be managed with most equality and least suspicion or exception , if the appraisment be made upon oath . and if any in the ship hath money , plate , jewels , or the like , in any trunk , chest , pack , fardel , or other thing now to be thrown over-board , he ought to discover it and shew it to the master of the ship before the ejection , or otherwise in casting up the contribution , these things will come no farther into consideration , then what the bare extrinsick value appeared to be . the goods preserved are by law as liable to pay contribution as fraight , and are tacitely obliged for the one as for the other , and the master may retain them as a pledge in law as well for the satisfaction of the one as of the other ; if such ejected goods or the merchandize be afterwards recovered out of the sea , the contribution for them ceases , saving for so much as they are thereby deteriorated . s but if by reason of the masters over-lading the vessel , or by his indiscreet stowing the goods or the like , such ejection or casting goods over-board happen , in that case no contribution to be made by the merchants ; but satisfaction by the ship , the master , or owners thereof . t if to avoyd the danger of a storm , the master cut down the masts and sayls , and they falling into the sea are lost ; this dammage is to be made good by ship and lading pro rata ; not so in case the same had happened by the violence of the wind or storm , or other casualties . also no contribution in case one ship strike against another , whereby dammage happens ; but full satisfaction in case of a fault or miscarriage in either , or an equal division of the dammage in ca●e it happen by a meer casualty . lastly , if a lighter , or skiff , or the ships boat into which part of the cargo is unladen for the the lightning of the ship , perish , and the ship be preserved , in that case contribution is to be made ; otherwise it is , in case the ship perish , and the lighter , skiff , or ships boat be preserved ; for no contribution but where the ship arrives in safety . v within the cognisance of the jurisdiction of the admiralty , and wherein merchants and mariners are principally concerned , are also all causes of reprizals , known to us by the words reprisaliae , or letters of marque , which in the law have also other appellations , as pignoratio , clarigatio , and androlepsia ; for it is supposed that those reprizals now commonly used , were first introduced in imitation of that androlepsia among the greeks , with whom it was a certain right in case of murder , to apprehend and seize any three persons whether citizens or other of any such place or city , into which the murtherer had fled for shelter , making it his place of residence ; and such persons to keep in safe custody , until upon demand the said murderer were delivered up to justice ; this was androlepsia with the greeks , which ( as some suppose ) gave an hint to other nations for these reprizals , which are now of practice more common then commendable . the word clarigatio is more acceptable to express reprizals , then either androlepsia or pignoratio ; fot pignoratio is a word too generall , and androlepsia too special , as being only by the authority of such as required the revenge of murder , and upon no other accompt then that . the word [ reprizals ] is from the french , reprendre & reprise , that is , to retake , or to take again one thing for anorher ; albeit this may not be by any private authority , but only by the authority of that prince whose subject the injured person is , and only in case justice be denyed or illegally delayed by that prince whose subject the offender is : for before any concession of letters of reprizal or marque , there ought to precede the oath of the party injured , or other sufficient proof touching the pretended injurie , the certain lo●s and damage thereby sustained , the due prosecution for obtaining satisfaction in a legal way , the denyal or protelation of justice , the complaint thereof to his own prince , requision of justice by him made to the supreme magistrate where justice in the ordinary course was denyed , persistency still in the denyal of justice ; all which precedent , letrers of reprizal ( under such cautions , restrictions , and limitations as are consonant to law , and as the special case may require ) may issue by the jus gentium ; for such law-casuists as question whether reprizals are lawful , are in that point rather divines then lawyers ; grotius , who was both , resolves it in the affirmative ; w wherein nations as well as persons , the jus civile as well as the jus gentium agree the legality thereof ; whether you understand general and universal reprizals , which is quasi bellum privatum , or special and particular reprizals , which is quasi duellum publicum . the precedent requisites being duely observed , reprizals may issue by the authority of the prince , in whom alone resides the power as of making war and peace , so also of granting letters of marque ; and this notwithstanding any lawes to the contrary that seem to inhibite the same ; x but with respect to the national treaties and coventions , which in this point may at times vary and alter the case in conformitie to such national contracts . a due administration of justice is not the least sense wherein princes are stiled gods ; to deny or delay justice is injustice ; justice is every mans right who hath not forfeited what he might claim by the jus gentium ; therefore the prince , within whose territories justice is denyed or delayed , is accomptable to that other prince whose subjects suffer thereby ; and by the law subjects may be punished for their prince's omissions in what the law of nations requires . y and that prince who unlawfully detained the rights of a subject under another prince , or suffers it within his territories to be detained , and in the ordinary course of law denies restitution , he may at length be compelled to restitution , vi & manu militari . z he that in the way of reprizals apprehends at sea another mans goods , ought not to keep them in his own private custody , and to convert them by his own authority to his own private use , but ought to bring them to some publick place in order to a judication according to law ; yet they are to remain with the captors till by them they are thus brought and submitted to publick justice ; by the authoritie whereof commission may issue for landing or unlading the said goods , for inspection , for inventorying , and for sale , either of such part thereof as upon such inspection shall appear to be bona peritura , or of the whole in case the court shall see cause , which is to order payment out of the proceed thereof to the party to whose use the letters of marque issued for and towards satisfaction of his debt and damages , after deduction of all dues , duties , necessary costs and charges relating to the seizure , either judicially or extra-judicially ; and the said debt and damages ( with all costs and charges ) being fully satisfied , the remainder or overplus ( if any , which seldome happens in such cases ) is to be restored to their owners from whom they were taken , and the said letters of marque thenceforward to cease . such letters of marque issue not without good and sufficient caution first given in court for the due observance thereof according to law , the transgression whereof creates a forfeiture of such judicial recognizance or stipulation ; and the captor for the better management of a judicial proof , in order to a right decision according to the merits of the case , is to produce part of the seized mariners to be sworn and examined according to law , as also to exhibite all the ship-papers and evidences found a shipboard ; and till judication he may not break bulk of his own private authority , nor suffer any imbezilement of the lading , nor sell , barter , or otherwise alter the property thereof , without special commission from the court for so doing . in the law there are certain persons and things exempt from being lyable or subject to reprizals ; they whose persons are exempt , have also their goods free. reprizals granted against any kingdome or state , are understood as against such only who inhabit therein , and not against such who though originally of that countrey against which the reprizals are , yet inhabit elsewhere , possibly in the same kingdome whence the letters of marque issued ; for he is not in this point reputed of that kingdome , state , province , or city wherein he doth not inhabite , albeit he were born therein ; it is not the place of a mans nativity but his domicill , not of his origination but of his habitation , that subjects him to reprizals ; the law doth not consider so much where he was borne , as where he lives ; not so much where he came into the world , as where he improves the world ; provided he hath there decenniated or inhabited ten years , or less , in case he hath born office there , or paid scott and lott , or removed his family thither , or his estate , or the greater part thereof , or is naturalized a denizon of that countrey . reprizals may not be exercised on pilgrims , or such as travel for religion sake , nor on students , scholars or their books , or other necessaries ; nor on ambassadors or their retinue ; nor on women or children . likewise goods found with a merchant of another place then that against which reprizals are granted , albeit the factor of such goods were of that place , are not subject to such reprizals ; nor ought the presumption of the place ( though strong enough for condemnation where proof of an innocent property failes ) prevail against fuller evidence . ecclesiastical persons are also by the canon law expresly exempt from reprizals ; so likewise such persons , as by storm or stress of weather are driven into port , have an exemption from the law of reprizals according to the jus commune , what the edict of any particular state in that case may doe , is not here determined ; but a ship or goods belonging to the subjects of another prince , against whom reprizals are granted , coming into a port , of that state , issuing such letters of reprizal , not by storm or stresse of weather , but to avoid confiscation for some delict committed at home in their own countrey , may be subject to reprizals in port. this right of reprizals ( which as some would have it , answers to the saxon withernam ) is not only admissable in cases of denyal , or protelation of justice , as when judgement may not be had within the time prescribed by law , but also when judgement is given plainly against the law , and no remedy to be had against such wrong judgement , either in the ordinary course per viam provocationis a appellationis ad j●dicem superiorem , nor in the extraordinary per viam supplicationis ad principem ; understand thus when the matter in controversie is tam quod merita quam quod modum procedendi , not doubtful , for in doubtful matters the presumption is ever for the judge or court ; but a wrong judgement in matters not doubtful must be redress'd one way or other , specially if such be given to the prejudice of foraigners , over whom the authority of a judge , though in his own jurisdiction , is not so exactly the same , as over his own subjects ; and although it be a rule in law , res judicata pro veritate habetur , yet it is as true , that judex male judicans pro injuria tenetur ; nor doth a judgement or a definitive diminish the merits , though it may alter the case ; therefore paulus the lawyer held , that a debtor , that is a debtor indeed , though judicially absolved , yet by nature remains a debtor still ; and therefore when this happens to be a foraigners case , he may ( if all other legal expedients fail ) for redress have recourse to the jus gentium , which holds conformity with the law of nature . subjects indeed may not by force oppose the execution even of an illegal judgment , nor forcibly prosecute their denyed rights , and that by reason of the energie of that power and authority which is over them , the subjects obedience being in the emphasis of the magistrates authority : but yet foraigners can fly to the jus gentium to right themselves by way of compulsion , which they could not effect by any legal prosecution , so long as their right is reparable by judgment according to law , but infeazible by reason of the denegation or protelation of justice , contrary to the regular proceedings of law. it seems at least summum jus if not plus justo , that the goods of his innocent subjects that denyed justice , should be taken and seized for that ●njustice , wherof they appear no more guilty then the original complainants : the truth is , this is not introduced by the jus naturae , but yet being commonly received by custome and national practise , is now become qualified for an allowance or tolleration by the jus gentium ; whether this were sufficient for nestor to plunder the elidenses for taking away his fathers horses , or for others on the like peccadilloes in this age , to centuple their losses on their innocent neighbours for their princes omissions under colour of letters of marque , is easier to question then proper to determine ; but whether christian blood should be ingaged in the quarrel which originully was but of private interest , would soon be decided where no military man hath the chair . by the law of nations all the subjects of the dominion doing wrong , whether natives or strangers making their aboad there , are within the reach of reprizals ; whereby 't is evident , that strangers not permanent there , nor under any of the aforesaid qualifications , are excepted ; for reprizals being in their nature quasi onus publicum , are introduced for the satisfaction of publick debts , to which strangers , that are meerly such , are no way obliged ; indeed to the laws of the land , where their present being is , they are subject , but yet are not subjects . and whereas it is formerly said , that ambassadors are exempt from reprizals , as also their retinue and goods , understand it not of such as are commissionated to any prince or state in enmity or actual hostility against that prince who issues such letters of marque . lastly , by the law of nations in matters of reprizals , whatever is taken , immediately upon the capture accrues ipso facto to the captor in point of propetty , so far as the original debt or damage with all incident costs and charges doth amount unto , and the surplus to be restored ; which equity in this case the venetians long since used to the ships they took on this accompt from the genuises ; but by the civil law , monitions or citations after a seizure ought to issue , and the parties concerned are not to carve for themselves , but submit the whole matter to a judicial examination , in order to their satisfaction , which ought to ballance the damnum emergens , but not to exceed by way of supplement in reference to the lucrum cessans ; for the law of reprizals though otherwise rigid enough , yet restitutio in integrum is its ultimate design ; and as no man ought to be enriched by anothers losse , so no man ought to gain by his own losse , when it may not be repaired otherwise then by remedies extraordinary , if not unlawful . having glanced at some general heads of the law of the admiralty quasi in transitu by way of introduction ( the least whereof in its due latitude requiring more volumes then are pages in this ) and therein the custom paid , with other ordinary port-charges usual in such cases , it may now be free to sayl from the law to the jurisdiction of the admiralty , being the port of discharge in the design of this adventure ; the wind seems fair , the seas well purged of rovers , and nereus reinvested with his trident ; the ensurance therefore need run but low , the danger is not great now that we have peace with all our selves ; yea , the loss is but small though the ship miscarry , so the cargo be preserved , for that 's of value , indeed a jewell , without which the whole world would soon be bankerupt ; so that if it escape the private arrest of some fained or fictitious action , there is no fear of a general embarg . elenchus authorum ; or , the names of the authours quoted in this treatise . aeschilus . accursius . afflictus . africanus . albericus . alexander . alonzo de chavez . andreas masius . angelus . annot. in sac. bib. edit . . aristotle . athenaeus . aurelius . aul. gellius . baldus . bartolus . bernar. gerardus . boerius . boroughs . brownlow . bullenger . caius . caiciapulus . cagnolus . calvinus . calistratus . carbo . cassanaeus . castrensis . casus . caesars comment . coelus rhod. caepolla . celsus . cicero . comines . consul del mar. corp. jur. civil . corp. jur. can. codinus . coke . corvinus . cowell . crook . curopalates . curtius . cynus . cothereou . pet. coth . demosthenes . diodor. sic. dion . afric . doct. & stud. domin . niger . donellus . durandus . faber . fascic . de sup . adm. in arce londinensi . fazellus . ferrandus . fitzherbert . fleta . florus . forster . fragm . hist . aquit . fragm . ascript . polib . fulgosius . galen . gellius . gerardus . godwyn . goldsborough . gothofred . granat . decis . greg. gemist . grotius . herodotus . hevedin . rog. heved . hieron . de chavez . hobard . homer . horace . huntindon . jason . isernia . junius . justinian . larrea . leonard . leon. marsisc . leunclavius . libanius . littleton . livius . lucius florus . lupus de magistr . mainus . maranta . marsicius . malmesburiensis . math. paris . masius . ms. admtis . voc . liber niger . monstrelatus . morisotus . moursius . noy . omphalius . oleron sea-laws . ortelius . oswaldus . owen . panormitan . papinianus . paris . math. paris . paris de puteo . paulus . paul. emil. peregrinus . perinus . petr. cothereou . plato . plinie . plutarch . polybius . pompeius trog . pomponeus . pruckman . fred. pruck . ptolimaeus . purchas . purpureus . ramus . ranulphus castrensis . raphael . rhodiae leges . ridley . rodorig . zamerano . rupertas , aliàs robertus le monachus . sabellicus . salycet . scardius . scaevola . selden . seneca . siffridus . sigebertus . sigonius . speculator . spelm. consul . spelm. glossar . spiegelius . strabo . suetonius . suidas . tacitus . tapia . terms of law. theophanes . thucidides . tibullus . triphoneus . tullus . turpinus . tuschus . valer. max. valer. forster . victor . virgill . vlpian . vopischus . zamerano . zasius . zonarus . the contents of this treatise . viz. chap. i. admiral ; the etymon or true original of the word ; with the various appellations thereof . chap. ii. the original of navigation , and the sea-laws ; with the antiquity of the office of high admiral in the transmarine or forraign parts of the world . chap. iii. the antiquity of the maritime authority , together with the office and jurisdiction of the admiralty within this kingdome of great brittain . chap. iv. of persons maritime ; as also , of such things as are properly cognizable within the jurisdiction of the admiralty of england ; and in what method it proceeds to judgement . chap. v. of laws and jurisdictions in general ; with the several kinds and degrees thereof . chap. vi. of prohibitions ; their several kinds , causes and effects in the law. chap. vii . of fictions ; what a fiction in law is ; how farre and in what cases fictions may be used according to the rules of law. chap. viii . that the cognizance of all causes and actions arising of contracts made , and other things done upon the sea , is inherent in the jurisdiction of the admiralty . chap. ix . of contracts and bargains made , and other things done beyond the seas . and whether the cognizance thereof doth belong to the admiralty . chap. x. of judicial recognizances and stipulations for appearance , and performance of the acts , orders , judgments , and decrees of the court of admiralty ; as also whether the said high court of admiralty of england be a court of record . chap. xi . of charter-parties made on the land , and other things done beneath the first bridge next to the sea ; vel infra fluxum & refluxum maris ; and how far these may be said to be cognizable in the admiralty . chap. xii . of the jurisdiction of the high admiralty of england , stat. r. . cap. . stat. r. . cap. . stat. h. . cap. . & stat. eliz. cap. . chap. xiii . of the agreement touching the admiralty in anno . as also of the resolutions hill. . car. . upon the cases of admiral jurisdiction . a view of the admiral jurisdiction . chap. i. admiral : the etymon or true original of the word ; with the various appellations thereof . the glossographists and others have digg'd very deep to come at the root of this word ; some are of opinion that the word admiralius is derived from the greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 salsus , or from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 salsugo , or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 salsigo , or from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 quasi salmacidus & salsus , à salsugine elementi cui imperat : a from the saltness of that element where properly his authority and jurisdiction doth reside ; b vel quod in salso mari suum exercet imperium . but this not seasoned with sufficient reason , is held but as an unsavoury derivation , from the great improbability that any in imposing of names should quit the thing it self , wherein the denominated is most inherent , and flie only to the more remote qualities thereof ; as if you should say that the admiral in rebus maritin●s were rather salinarius then marinarius , as is truly observed by the learned sir henry spelman . c so that if you offer this derivation , though cum grano vel mica salis , it will not pass . therefore others are of opinion that it is derived from the french [ ameral ] signifying an high officer or magistrate in sea-affairs ; but this is as if you should say , ( to keep to the metaphor of a liquid element ) that ice dissolved is the mother of water , rather then water frozen the mother of ice ; no doubt but [ ameral ] in french now signifies such an high officer or magistrate ; but where was that french word [ ameral ] when the office of admiral , by other appellations almost homophonous to that , was in being , but not in france ? that office by other names appellative not much dissonant to this of admiral was anciently known in the world , when no such thing in france ; for the romans themselves anciently had not these admirales ( for so then called ) till constantine , in whose time isti admirales magistratus creati sunt ; d that is , among the romans ; for they were known to other parts of the world long before constantine the great , anno . so that it may be truly said that this high officer or magistrate in sea-affairs is in the french now rendred by the word [ ameral ; ] but not that the word admiral is thence derived . therefore others conceive it is derived from the saxon aen mere eal , that is , over all the sea. this passes for a currant derivation and exposition of the word admiral with us ; possibly because it sounds both so prettily and pithily ; for we are now as apt as our neighbours t'other side the water to be alamoded as well with fine words as other vanities . yet this being a derivation of our own generation , it may not be much controverted , specially for that others as well as those of our own nation , have acknowledged the word admiral to be derived from the saxons , with whom the word [ hadmiral ] doth signifie praefectum maris . others there are who will have it derived from neither of these , but from the sarazens , [ admirantes ] for that in the infancy of that empire there were quatuor admirantes , hoc est , militum praefecti , qui terra marique pugnarent . e but some think that this opinion hath no farther truth then in appearance only ; for that the sarazens had no farther use of that office then in the holy wars . therefore those ancients that derive the word much higher then the time of the holy wars , will have it dr●wn rather from the greek then arabick ; so that they seem to come nighest of any to the truth , that derive the pedegree of this word admiral both from the greek and arabick . for that amir in the arabick signifies princeps , praefectus ; and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in the greek marinus , both which amount to admiralius , or rather to amiralius , quasi princeps vel praefectus marinus . and this carries the greater probability with it , for that , as the said sir henry spelman observes , such bilingue compounds were much in request at the court of the eastern empire ; and it seems yet the more probable , for that in homer we find the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 pro rectore maris , or governour of the sea ; yea , and for neptune himselfe . wherefore amir , otherwise emir , also amira , amirae , amiras , and amiradis , do signifie regem , principem , eparchum , and praefectum ; also with the turks and sarazens , it sometimes signifies their great emperours , and sometimes their proto-symbol or president of the senate . and so the arabick [ amira ] or the hebrew [ amar ] that is , dixit , edixit : illud praecepit , imperavit ; from whence [ mamurem ] that is , praeceptum , edictum ; and [ amirom ] that is , dux , capitaneus , imperator , praefectus . and so 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in the compound ; from whence [ alamiro ] ( with the article al ) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the chief captain . and from hence the spanish [ almirante ] or according to their ideom , el amirante , and thence by turning l into d the word admirans by some hath been used for admiral ; whence others also , though very corruptly , yet by reason of their being so consonant , have given it other such like names , as admirabilis and admirandus ; which words , if compared with the former , will , in the sense of such as have so express'd themselves , be found to be rather syncatagorematical in their signification , then homophonous in their accent or pronunciation : and therefore the said archiologist conceives that the word [ amiratus ] ( which in malmsb. is so often used for admiral ) is not thence derived , but rather from [ amiradis ] the genitive singular of the foresaid amiras , by an exchange of d for t , as was usual ; and adds , that the word [ admiraldus ] is very legible in the antiquities of turpin and rupert or robert the monk f quasi al amiradus , that is , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and by an apocope of the letter d admiral ' g which others will have to be express'd by the word admirarius . h this high officer or chief magistrate in marine affairs with us is styled the lord high admiral of england ; with the greeks 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ; with the latines , amira , amiras , amireus , ammiratus , admirallus , admiralis , admirans , admirandus , admirabilis , admiravisi , almiramisi , admiralius , amiralius . in the eastern empire , amerii , admirantes ; also drungarius , drungarius magnus , drungarius classis , drungarius navigiorum , drungarius mari praefectus . with the athenians and others , thalassiarchus , archithalassus , magistratus rei nauticae jurisdictionem habens . with the romans there were duum viri navales , afterwards praefectus maris , praefectus classis , magnus dux classis , archigubernius . with the spaniard almirante , el amirante , adelantado . with the french , l' ameral , praefectus maris & litoris , custos limitis maritimi , comes litoris . besides these there are several other appellations of this one and self-same high officer , consonant unto the ideom of such nations and countries respectively , where this great office hath been constituted . this word admirallius , how it should signifie bellicosus or victoriosus , as mat. paris hints , i seems not easily to be resolved without a far strained notion ; for , without doubt , of all the presupposed etymons of that word , that which junius gives , seems to be the most legitimate , that from the arabick [ amira ] princeps , and the greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 marinus ; it being generally agreed that this word is a compound of an exotick extraction from two distinct languages or tongues ; and therefore although gretserus k be pleas'd to be displeas'd with this derivation thereof , yet it is supposed that others without the least hazard of naufragating their art of glossographie , may securely cast anchor and safely acquiesce therein . chap. ii. the original of navigation , and the sea-laws ; with the antiquity of the office of admiral in the transmarine or foraign parts of the world. the world was no sooner created , but man had dominion over the fish of the sea jure divino , which could not well be without naval architecture , and some skill in the art of navigation ; and it is now no less then nigh years since noah , that totius orbis thalassiarchus , or high admiral of the whole world in that general cataclysme , with his ship , or vessel called the ark of gopher , laden with a cargo of the whole vniverse , after a nigh six moneths voiage safely arrived at ararat , his port of discharge in armenia ; which though re-peopled by his progeny , yet thence to believe and affirm , a that by naval acquisitions his son sem proprietated all asia , his son japhet all europe , and his son c ham all africa , is more then a meer historical faith hath sufficient warrant for , though less then navigation hath antiquity to possibilitate . whether jupiter king of crete , now the isle of candie , did purge the seas of pirats , and his son minos by sea-fights beat the athenians into tributaries , is also a question more ancient then certain , or easie to be resolved ; b yet that theseus son of aegeus , king of athens , vanquished taurus then high admiral to minos , is asserted by good authority , c and drowned him in the sea , hinc fabula minotauri . d but the master or steersman of theseus his ship , not remembring to advance or display the white eagle as the ensign of victory at his approach on his arrival to crete , his father aegeus betwixt fear and fury cast himself headlong into the sea , which gives it the name of the aegean sea in the archipelago to this day . in those days lived daedalus , who to avoid the tyranny of minos fled , from crete into sicily , but the wings wherewith he is feigned to have fled , the more modest mythologists expound to be only the sails of his ship . e some are of opinion that former ages were ignorant of this art of navigation , for that they ingraved non ultra upon hercules pillars : the nations about pontus supposing no sea in the world like their own , and doubting whether there were any other sea then that only ; whence pontus became a word used for the sea in general ; though prometheus according to aeschilus the attick poet doth challenge all the glory of this art of navigation to himself ; whom , among others who boasted themselves as authours of this art , the rhodians envying , presumed to give laws , and to prescribe the rules of naval discipline , in order to the better government of maritime affairs , f which were now occasionally introduced into the world by this art of navigation ; which laws are found dispersed among the several titles of the civil law by command from the emperour justinian . this island of rhodes in the mediterranean or carpathian sea , was by reason of the multitude of their shipping and great commerce , g no less famous for their sea-laws , then for their monstrous colossus ; the one was no less the wonder of reason in the infancy of trade , then the other of art , though that the greatest of the seven in all the world ; this appears by that memorable and known passage of the emperour antoninus pius , who in answer unto eudemon's complaint concerning the seizure of his ship-broken goods by the customers of the cyclides in the archipelago , referres him for justice to the rhodean laws , professing that although he were lord of the world , yet the law was of the sea. h to which rhodian law several other emperours , as tiberias , hadrian , vespatian , trajan , lucius septimius , severus and others do referre all maritime controversies ; i yea , for many hundred of years the mediterranean and most parts of the christian ocean , where any trassick or commerce was , subscribed to the law of rhodes in the decision of all matters of admiral cognizance . but some there are who by no means will admit that the rhodians should thus monopolize the glory of advancing the common interest of mankind , as if the law of the sea was born into the world only by their obstetricy ; and therefore will have the origination of the sea-laws attributed to the phaenicians ; who as they are by some accounted the authors of arithmetick and astronomie , so also of navigation ; whence is that , prima ratem ventis credre docta tyrus . they were the first that took the observation of the north-starre in supplement of that navall mystery . these phaenicians , who came with cadmus into greece , as they civilized , the graecians by their sciences and other literature , l so they exceedingly debauch'd them by their luxurie , and insatiable avarice , which together with their wares and merchandise they first imported into greece . m these were they that transported io ( whence the ionean sea is so called ) out of greece into aegypt ; and were the first that descryed the two poles . n this phoenicia is the sea-coast of syria , o the greeks call this sea-coast phoenicia , but the hebrews call it chanaan , and the inhabitants chananites . p dionysius also is of opinion that the phoenicians were the first mariners , merchants , and astronomers , q and tyrus the maritine metropolis thereof ; whose trade and commerce was so great and remarkable in that aera from adam , and consequently her pride and luxurie , that less then two whole chapters of the sacred record will not suffice to describe the vastness of the one , and the judgments of the other . this city tyrus is there styled a merchant ; all whose ships were made of firre , their masts of cedar , their oares of bashan oke , the hatches of ivory , the wast clothes , vanes , flaggs , and pendants of purple and scarlet , the common mariners were the zidoneans and inhabitants of arvad , their calkers were the ancients of geball , and their steers-men or pilots where the wise men of tyrus . to these may be added the inhabitants of caria in asia minor , for it is upon good records of history that these also were anciently reputed lords of the sea ; as also the inhabitants of corinth ; likewise the people of aegina , one of the isles of the cyclades and of aegypt ; all these respectively have challenged to themselves this honourable invention of the art of navigation . r but the first that invented ships on the red sea & sailed thereon , is said to be king erythrus , whence the red sea took its name of erythreum mare . s there are others who ascribe this art of navigation to the carthaginians ; t this seems to have more then fumum probationis in it ; for that these poeni or carthaginians originally were phoeni or phoenicians , u it is most undeniable that their naval discoveries attempted by hanno , w by hamilco , and other carthaginians are no less famous upon historical record , x then their three great though unfortunate bella punica maritima , when hannibal himself was lord high admiral , which began in the olympiad , and concluded with the sad catastrophe of that famous city of carthage , then years old , in the last year of the olympiad , y whereby rome by her conquests lost the glory of a competitor for the worlds empire . now when the roman empire ( which is so commonly mistaken for the beast with ten horns , mentioned in the prophet daniel , with teeth of iron , and nails of brass ; which in truth is meant of the syrian monarchy under the seleucidae , so called from seleucus nicanor ) was shattered and dilacerated , whereby a very dark and dismal eclipse ensued generally on all laws , necessity then , which hath no law , occasioned new laws , and bad manners at sea begat good laws on land , yet not so much a creation of new laws that never were before , as a reviver or resurrection of the former out of the cinders of that fallen empire , together with such additionals as time , experience , and negotiations had administred occasion for , especially to such parts of the world as by their neighbourhood to the sea were most conversant in naval expeditions and maritime affairs . hence it is , that in supplement of the forementioned sea-laws all the chief towns of commerce and traffick on the mediterranean contributed special sea-constitutions and ordinances of their own for the better regulation of all maritime occurrencies ; such were the sea-laws published by divers emperours of rome , also by the inhabitants of pisa , by the genuises , by those of messene in peliponesus , of marselleis , venice , constantinople , arragon , by the massilites , barcelonians and others . z as also the laws , of oleron , nigh years now received by most of the christian world , specially the mediterranean , as the legal standard of all naval discipline , and for decision of all maritime controversies ; for the rhodian laws being grown somewhat superannuated and obsolete , these laws of oleron succeeded the other , and were published in that isle , then belonging to the dutchy of aquitane , by king richard the first , at his return from the holy land in the fifth year of his reign , the said isle at that time being under the dominion of the kings of england . as to the original of the soveraign command at sea in the infancy of time ( though very uncertain ) yet divers nations , among which chiefly the assyrians , macedonians , persians , egyptians , romans & carthaginians have ascribed it to themselves ; but the greeks confidently assert , that minos king of crete had the first soveraign empire over the sea , and thence would fain have it over our faith also , as if saturn king of crete , seeing his son neptune to have invented the art of navigation , gave him the command of his navies at sea , which he managed with such success , that after-ages sacrificed to him as to a god of the sea ; so that minos being descended of saturn by his son jupiter , having afterwards obtained the superintendency and guard of the seas , left it to his successours . notwithstanding which , the syrians , egyptians , cyprians , rhodians , but specially the phoenicians have in all former ages had the honour of being reputed the most valiant and expert artists at sea in maritime affairs , and that from the excellent conduct and government of their navies beyond all other nations and countries whatsoever . but the corinthians are supposed to be the first that ever formed or modelled navies at sea in a classical way . a the athenians had two chief magistrates for the maritime affairs ; the one was to provide such a number of ships for this or that design , each captain having in charge to see to the equipping of his own vessel . these captains they called trierarchy . the other had power of setting them to sea , and of ordering them home again at his pleasure , whom they called magistratus rei nauticae iurisdictionem habens , qui trierarchis jura reddebat , and ordered the several squadrons to such or such stations and places of rendezvous , and discharged them as he thought fit . this was that thalassiarchus , or admiral of the athenians , b who sometimes had more admiral 's then one at once , as niceas and demosthenes ; at other times but one only , as alcibiades , pericles , simon and others . likewise under alexander the great and his successours , kings of syria and egypt , there were divers admirals , whereof some were grecians ; others of other countries , such were nearchus , onesicratu● , beton , diognot and others ; as also patroclus , under nicanor and seleucus of the syrian monarchy ; but most memorable is that commission which was by ptolomeus philadelphus given to decearchus , as if he had been to take an exact measure of the circumfercnce of the whole world by a line of navigation . among the phoenicians , the tyrians and zidonians were the most eminent in all maritime affairs , as was formerly hinted . these not only transported from place to place varieties of merchandizes till then unknown to other parts of the world , but also made divers new discoveries , and planted colonies therein , as at vtick , hippone , and lepte in africa ; at thebes in greece and egypt ; and at gades and carthage , that carthage which is in spain ; but of all africk , the other carthage , once lord of the levant , the chiefest for sea-affairs ; whose admiral hanno by order of the senate discovered the utmost coasts of africk , even to one degree of the aequinoctial ; and their other admiral hamilco discovered all that part of europe , which till then lay as sub-incognito to the carthaginians . in the eastern empire he that was high admiral was styled drungarius , as drungarius navigiorum constantinopoli ; drungarius classis ; drungarius mari praefectus ; drungarius magnus . c although some are of opinion that this was a general word with them , or a word which signified generals as well by land as by sea , qui drungis , hoc est , globis militum imperabant . d this magnus drungarius classis was a subordinate officer or naval magistrate under their great duke , e and was also styled ameralius , which with them was likewise a common appellation for terrene princes ; thus the tyrant of babylon was called amiralius ; f thus huntindon speaks of twelve amiralios paganorum , that were slain at the siege of antioch . thus matth. paris in will. . speaks of reges & amiralios at once appointed for the warres by corbaranus . thus robert the monk g makes mention of the son of cassianus king of antioch , and twelve admiraldi of the king of babylon slain in battel , whom with an army he had sent to aid the said king of antioch . thus the agents or ambassadours of the the king of babylon styled the said king himself admiraldum . h dominus noster admiraldus babyloniae , mandat vobis francorum principibus salutem . thus nabuchodonosor king of babylon was styled admiralius . i thus we also find a chieftain of a bow-militia styled arcubalistariorum admiralius . k so that anciently this word ameralius or admiralius did signifie as well the commander in chief of the armies by land as of the navies by sea , and sometimes the office or dignity of kings and princes or other soveraigns of supreme authority ; but this you are to limit only to the turks and asiaticks . again , in the eastern empire there were no less then four admirals or amiraei ( there properly so called ) at once , for that mahomet or rather muhammad appointed four praetors in the kingdome of the sarazens which were called ameraei . l and that muhamed a little before his death constituted four ameraeos , qui debellarent omnes ex genere arabum christianos . m these four ameraei were also called quatuor admirantes . and of these four admirals with the sarazens , the one had the sea-command of egypt and africa ; two others thereof divided the spanish coasts betwixt them ; and the fourth had palestine and the coasts of syria . but many are of opinion that before charlemaigne the sarazens had but one admiral , viz. addala : after him aron ; and after him mabarmad : which charlemaigne having war with his brother haldala , and being more then half conquered by him , condescended that the sarazens should have two admirals for one . and turpin , who was secretary to the said emperour charlemaigne , acquaints us with an admiral of babylon , vvho came to the succour and relief of the sarazens of spain against the french ; as also of another admiral , viz. galaffre , a very potent favorite with the said emperour . n under the roman state , when pompey banded with caesar for the soveraignty , there were several admirals , well nigh as many as the nations were which aided either party with shipping , as the egyptians , asiaticks , rhodians , syrians , achaians , and others , over whom m. bibulus was lord high admiral . but when the government was reduced to an establishment , the admiralty was setled also ; which not long after was again divided into two parts , for there was one admiralty at misene and the adjacent po●●s for the south ; another at ravenne towards the east ; which two for distinctions sake they called the high and low seas ; each whereof was under the command of his proper admiral , whom they called praefectus classis , as the captains of their ships were known by the style of navarchi . it is also evident that in the roman empire there was anciently a company or society of owners and masters of ships , as also of merchant-adventurers at sea in the isle and city of rhodes , which above all other places in the world had once the prerogative in deciding all maritime controversies ; insomuch that the emperour antoninus , who though imperious enough in styling himself totius mundi dominus , yet in all nautical controversies subscribed to the rhodian law , acknowledging that though himself was lord of the world , yet the other was of the sea. o there were also very ancient laws made and published by those of rhodes , who were most exp●rt at sea , as well touching navigation , as merchant-affairs , where the use thereof was of no less consequence unto , then of antiquity in that mediterranean isle p the assertions upon historical record touching the excellency of their sea-laws , their incomparable skill in navigation , and the trophies of their naval victories are almost incredible . q but this so famous isle being at length reduced from the glory of a splendid to the eclipse of a decaied merchant , by reason of the many irruptions and incursions made thereon by several nations , specially by the turks , a little before the reign of charles the great , ( when about the same time the turks also possessed themselves of several other isles in the mediterranean ) the gallantry of the rhodian navies soon after vanished ; which at length ( as some german authours would have it ) was thence translated to the oriental ocean or baltick sea ; for that wisby in gotland anciently prescribed the sea-laws to merchants and mariners ; whereunto ( as afterwards to lubeck ) the neighbouring cities did usually appeal in all affairs of maritime cognizance . the word admiralius from the eastern empire was first transported into italy and sicilia , thence into france , and from thence into england . the first high admiral in france ( as supposed ) was one rutlandus , so called by aeginardus in the life of charles the great ; others called him rolandus ; he was constituted high admiral of france about the time of king pipin or charles martel . r yet others are of opinion that the office of ameral , that is , admiral , was known to the french first in the daies of lewis the seventh , from whose time till philip the fourth there was only one admiral ; after that , there were two admirals in france at the same time . s and afterwards more then two at one and the same time , each dividing his jurisdiction according to the coasts of their several provinces respectively . t this high officer l' ameral in point of dignity is next to the high constable of france . anciently there were three admirals in france : one in aquitane , another in brittany , and the other was generalis in francia ; which three are now reduced to one , who doth exercise his jurisdiction at the marble table in palatio parisiensi . and whereas it is by some supposed that rutlandus alias rolandus ( as aforesaid ) in king pipins daies was the first admiral of france , yet the more probable opinion is , that either enguarrantus dom. de causy in king philip the third's time ; or americus vicount of narbone in king johns time , was the first that ever had the honour of that high office in the kingdome of france . chap. iii. the antiquity of the maritime authority , together with the office and jurisdiction of the admiralty within this kingdome of great brittain . in the precedent chapter it is said , that the name of admirallius first came out of the eastern empire into italy and sicily , thence into france , and thence into england ; and this ( as the learned sir hen : spelman doth suppose ) after the time of the holy warre . for that , as he observes out of hovenden , when king rich. the first prepared his navy for that design , he appointed no single person to the command in chief of that navy by the name or style of admiral , but deputed five several persons * to that command , by the name or style of ductores , justiciarii , & constabularii totius navigii . a the said learned authour comes something nigher to our times , and says that this appellation or style of admiral seems not to be received with us in an. h. . for that the king in his grant at that time to william de lucy expresses himself only by the words of concessit maritimam angliae , without any mentioning of the word admiral in that patent . nor yet in the forty eighth year of his reign , for that he then constituted tho : de moleton , capitaneum & custodem maris ( non admirallium ; ) so that he is of opinion , that this high officer was not known to us here in england by the name or style of admirallius till the beginning of ed. the first 's reign . and that william de leiburn was the first with us that had the dignity of that office by the style of admiral , who at the assembly at bruges , anno ed. . was styled admirallus maris regis . and that soon after the said office became tripartite , viz. anno ed. . when the said william de leiburne was made admiral of portsmouth , and the adjacent parts ; john de botecurts of yarmouth , and the neighbouring coasts thereof ; and a certain irish knight of the west and irish coasts . after whom succeeded three other admirals for the same divisions in the year of ed. . viz. john otervin , nicholas kiriel , and john de felton . and in those daies the admiral was often styled not admirallus maris , but admirallus flotae navium , id est , classis , or the admiral of the navy . and this admiral had his power divided into two stations ; the one was the north station , which began at the mouth of the river of thames , and thence extended it self north-ward , comprising yarmouth and all the eastern shore . the other was the west station , which beginning likewise at the mouth of the river of thames , stretched it self west-ward , comprising portsmouth , and all the south and west of england . but the first that was styled admirallus angliae was richard the younger son of alan earl of arundel and surrey , in the tenth year of r. . b notwithstanding all this which hath been said , intimating that william de leiburn in the of ed. . was the first in england that had this office by the name or style of admirallus ; yet it is evident by matth. paris in h. . ( which is about years before that of ed. . ) that at that time there was mention made of one balac ameralius here in england , who in fight took and surprized jocelyne earl of edessa , c with his cousin galeranus . but at what point of time precisely that office by the style or appellation of admiral was first known in england , it matters not much , since the thing it self , which signified that office now known to us by the style of lord high admiral , and the jurisdiction thereof hath ever been in this kingdome time out of mind ; this will the more evidently appear if you consult the records of history , and compare them with others national , touching that ancient dominion the kings of england have ever had over the seas of england , together with that maritime jurisdiction which hath ever asserted the same . that the kings of great brittain have an undoubted right to the soveraignty of the seas of great brittain , none but a few mare libertines ( and that for their own interest ) ever scrupled . sir hen : spelman gives us an account of a very ancient record d extracted out of the laws of hoelus dha , regis seu principis walliae , cir . an. . which for the proof of the said dominium quasi uno intuitu , is here inserted in haec verba , viz. variato aliquantulum nominis vocabulo , dici hic videtur huwell da , qui superius hoêl dha , latine hoêlus & hoelus , alias huval , ( quem malmesburiensis unum fuisse refert e quinque wallensium regibus ) quos cum cunadio rege scotorum , malcolmo rege cambrorum , & maccusio achipirata ( seu principe nautarum vel marium praefecto ) ad civitatem legionum sibi occurrentes , rex anglorum eadgarus in triumphi pompam deducebat . una enim impositos , remigrare eos hanc coegit , dum in prora ipse sedens , navis tenuit gubernaculum : ut se hoc spectaculo , soli & sali orbis brittanici dominum praedicaret & monarcham . in this ancient and memorable record king edgar , neptune-like rides in triumph over the brittish seas , giving the world to understand , that dominium maris is the motto of his trident. consonant whereunto is that which the law it self says mare dicitur esse de districtu illius civitatis vel loci , qui confinat cum mari , in quantum se extendit territorium terrae prope mare . in a word , to this purpose the renowned learned mr. selden , who hath left no more to say , but with jo : baptist larrea in one of his decisions of granada , that authorum sententias non ex numero , sed ex ratione metiri oportet ; & pensitari debent juris fundamenta , non authorum elenchum velut calculatione computari f the lord high admiral is by the prince concredited with the management of all marine affairs , as well in respect of jurisdiction as protection . he is that high officer or magistrate to whom is committed the government of the kings navy , with power of decision in all causes maritime as well civil as criminal ; so that befide the power of jurisdiction in criminals , he may judge of contracts between party and party touching things done upon or beyond the the seas . g wherein he may cause his arrests , monitions , and other decrees of court to be served upon the land , as also may take the parties body or goods in execution upon the land. h the lord coke in honour of the admiralty of england , is pleased to publish to the world , that the lord admirals jurisdiction is very ancient , and long before the reign of ed. . and that there hath ever been an admiral time out of mind , as appears not only by the laws of oleron , but also by many other ancient records in the reigns of hen. . ed. . & ed. . i thus as the laws and constitutions of the sea are nigh as ancient as navigation it self , so the jurisdiction thereof hath universally been owned and received by all nations ; yea , and this kingdome is by way of eminency crowned by antiquity for the promulgation of the one , and establishment of the other . for , otherwise without such maritime laws , and such an admiral jurisdiction , how could the ancient brittains , long before julius caesar invaded this isle , restraine all strangers ( merchants excepted ) from approaching their confines , k or regulate such navies as were the wonder of that age ? l or , how could king edgar in the titles of his charters have effectually styled himself as well imperator dominusque rerum omnium insularum oceani qui brittaniam circumjacent , as anglorum basileus , m or maintain in naval discipline these four hundred sail of ships appointed by him to guard and scour the brittish seas ? n and did not etheldred after edgar for the self-same end and purpose set forth to sea from sandwitch one of the greatest navies that ever this kingdome prepared ? doubtless this was no lawless navy , without maritime constitutions for the due regulation thereof according to the laws of the sea , consonant to that of the jurisdiction of the admiralty then in use and received by all the maritime principalities of europe . whereas it is universally acknowledged , that the admiralty of england is very ancient , and long before the reign of edward the third , who ever consults antiquity shall find it farre more ancient , and long before the reign of edward the first ; even time out of mind before the said edward the first . to this purpose very remarkable is that ancient record in the tower of london , entituled , de superioritate maris angliae & jure officii admirallatus in eodem , and out of the old french rendred into english by sir john boroughs in his compendious treatise of the soveraignty of the brittish seas , pag. , &c. edit . anno . in which it evidently appears that the admiralty of england , and the jurisdiction thereof was farre more ancient then edward the first , and that from age to age successively , and time out of mind even before the days of the said edward the first , it was so owned and acknowledged by this and all other neighbour-nations , as appears by the said record , which was occasioned by a national agreement of certain differences arising between the kings of england and france in the year of the reign of the said edward the first , by reason of certain usurpations attempted by reyner grimbald , then admiral of the french navy in the brittish seas ; in which agreement the commissioners or agents for the maritime coasts of the greatest part of the christian world , of genoa , spain , germany , holland , zealand , freezland , denmark and norway , then present , made this memorable acknowledgment and declaration , which is extracted out of the said record , as to so much thereof as relates to the jurisdiction of the admiralty , viz. that the procurators of the admiral of the sea of england , and of other places as of the sea-coasts , as of genoa , catalonia , spain , almayne , zealand , holland , freezland , denmark and norway , do shew that the kings of england time out of mind have been in peaceable possession of the seas of england , in making and establishing laws and statutes and restraints of arms and of ships , &c. and in taking surety , &c. and in ordering of all other things necessary for the maintaining of peace , right and equity , &c. and in doing justice , right and law , according to the said laws , ordinances and restraints , and in all other things which may appertain to the exercise of soveraign dominion in the places aforesaid . and a. de b. admiral of the sea deputed by the king of england , and all other admirals ordained by the said king of england have been in peaceable possession of the soveraign guard , with the cognizance of justice , &c. and whereas the masters of the ships of the said kingdome of england in the absence of the said admiral have been in peaceable possession of taking cognizance and judging all actions done in the said sea , &c. the said procurators in the names of their said lords , do pray , &c. that speedy delivery of the goods and merchandizes taken and detained , be made to the admiral of the said king of england , to whom the cognizance of the same of right appertaineth , so that without disturbance of you or any other he may take cognizance thereof , and do that which appertaineth to his office. in which record it is observable , that even in those days , that is , before the time of edward the first , the kingdome of england had not only the soveraignty of the brittish seas , but also an admiral empowered with a jurisdiction maritime to take cognizance and judge all actions done on the sea ; to doe justice , execute the laws of the sea , maintain peace , right and equity , according to the laws and ordinances of the sea ; and in a word , to minister justice in all things that to the office of an admiral appertain . to this might be added king john's ordinance made at hastings , touching the soveraignty of the brittish seas in the point of striking sail or veiling bonnets by the vessels of forraign nations to the kings ships ; which ordinance was made long before the reign of edward the first , and wherein mention is likewise made of the high admiral of england ; but this that hath been said , may abundantly suffice both to prove and illustrate the antiquity of the high admirall of england , and his jurisdiction in matters maritime . if it be granted , that frustra sunt arma foris , nisi est consilium domi , it cannot well be denied but that frustra sunt arma domi nisi est dominium maris , to which as undeniably may be added , that frustra est dominium maris , nisi est jurisdictio domi . if therefore the ancient rights of the jurisdiction of the admiralty of england , should at any time happen to be impeded by ought , not so properly qualified judicially to conserve the rights of the soveraignty of the brittish seas , might not a decay of trade , that cornucope of all national provisions , be justly suspected ? specially if neighbour-nations should thence pretend to spy any thing like a flaw in englands trident , as if her dominium maris were in part dismantled ; the plenty as well as the safety and security of these kingdomes , much ( under god ) consisting in the power of the royal navy , those pyramids of majesty , or floating garisons . the dominium & jurisdictio maris are such confederates , you cannot prejudice the one , and not the other ; and therefore to scruple that jurisdiction , those ancient rights , whereby our own are conserved and secured , may not be convenient ; so that to doubt whether the established jurisdiction of the high admiralty of england may judge of marine properties , is implicitely and in effect to inferre , that the navy royall is equipped only to enamel the seas and take the air , or that their captures at sea must evaporate ; if bargains and sales made super altum mare can transferre and alienate properties , then doubtless the admiralty can finally judge and determine thereof . nor let any man think the admiralty of england is without remedy , in case one man impleads another for an admiral cause in another jurisdiction ; for if the admiralty cannot summon and proceed according to the ancient style , practice and known rights , laws and customes of that jurisdiction , against such who in matters of admiral cognnizance prosecute the law elsewhere , then what is it more then a meer idaea that hath no real existence beyond the pleasure of the parties litigant ; nor is that other mis-opinion , viz. ( that the admiralty may not enforce its own decrees and orders ) worth consideration ; for the executive part is so inherent in a jurisdiction , quatenus such , that in effect it is but a lame and imperfect jurisdiction without a power coercive , which breaths life and vigour into a jurisdiction by execution , which otherwise would be but like a body without a soul , or like an expert commander commissioned to fight with his hands manacled behind him ; sententia absque executione , est quasi splendidum justitiae cadaver . this mis-conceit may not be much inferiour to theirs who are dextrous at translocations by surmises and suggestions ; if the the circumstance of locality be too light to be traversable , yet it is of weight enough to be surmised or suggested . it is not impossible but that the cognizance of the admiralty , being in part essentiated by the marine circumstance of place , may be obstructed by a meer missurmise as to the locality . suum cuique tribuere is the ultimate result or summa totalis of all justice , whose ballance is then best poized , when it weighs each individuals , policy with a consistency to common interest . it may be not less hazardous then chargeable for the client to complement justinian with one fee , and littleton with another ; if so , it will be expedient that he provide two purses , which is but the beginning of sorrows , for he must also provide a good stock of patience to await the event of what will put no issue to the merits of his cause . and in concurrencies of jurisdictions a concurrency of jurisdictional qualifications as well intrinsick as extrinsick seems to be requisite ; for , admitmitting that by a dedimus potestatem , or other writ of like nature , witnesses might be legally examined at venice , lisboa , or other transmatine parts ; sub mutuae vicissitudinis obtentu , yet what judicial improvement can be made thereof , especially quando ex facto jus oritur , without due intrinsick qualisications calculated for the meridian of a maritime cause . but to digress , may be to transgress ; to return therefore to the antiquity of the office and juisdiction admiral . the authour of the book entituled , rights of the kingdome , hath several passages concerning the office and jurisdiction of the admiralty , whereof one is ( pag. . ) that edgar that great monarch , was as great a conquerour by sea , as aethelstane by land ; that it might be easier to shew his four seas , then to set their exact bounds . but in ( pag. . ) he is pleas'd to say , that the law maritime is dark enough , with all the jurisdiction of the court admiral ; ( so is the sun to him that will not see ) where he farther seems to please himself with saying , that that office may be harder then the name , by calling it a strange mixture of greek and arabick . yet for the antiquity of the said office , he doth the admiralty that right , as withal in the same place to assert , that the old ms. del'office del ' admiral hath divers records of h. . rich. . and king john , speaking of trials by twelve ( as at common law ) but that now the practice is much otherwise . and that in the rolls of ed. . the name of admiral : but not in our printed laws ( that the said authour knows of ) till edward the second . and then adds , that in edward the third the rolls are full of that office. and so proceeds , that in rich. . it was brought to a weldy ( that 's the epethite it pleases him to afford it ) model . being uncertain rather then infinite before , as the said authour is there pleased to determine ; for ( says he ) the bounds were ever straighter much , then some may imagine . also that they were again disputed in henry the fourth , q. elizabeth , and king james . and then he is pleas'd most facetiously to add , that it lies more open to the common law , then to the wind. yet withal he doth not there conceal , but that besides the laws of arthur the brittain , and edgar the saxon , we have some records of custome by sea as well as by land ; with priviledge to some , below the king , before the norman : whom they make the founder , yet he was ( in the said authours judgement ) but patron of the ports , and wardens of the sea. and the same authour , speaking of the sea-statutes of rich. . how that they were made , de communi probarum virorum consilio , refers to the very expression of the charter it self ; in hovenden , wendover , or matthew paris , who doth add , that per consilium magnatum , there were made justiciarii super totum navigium angliae , &c. which with divers records of henry the third may be added to the admiral : or saxon aen mere eal , over all the sea. to which much might be added from the rolls of hen. . and ed. . but this that hath been said , may suffice to satisfie some and convince others , touching the antiquity of the office and jurisdiction of the high admiralty of england . for the utility of this ancient jurisdiction of the admiralty in this kingdome of great brittain , if you have retrospect to the honour thereof in precedent generations , antiquity can witness with what effectual success ( if not to the nonplus of neighbour-nations ) the dominium maris brittanici hath been from age to age judicially asserted ; if you consider the plenty and splendour of a flourishing kingdome , the present generation cannot yet forget to give ample testimony thereof in reference to the trade and commerce of this nation ; and if you will not be so irregular as to deny the consequence that naturally flowes from these premises , you cannot but inferre this positive conclusion , that the succeeding generations are like to suffer as well an eclipse of their honour , as an abatement of interest , without the influence of that jurisdiction ; insomuch as the late cardinal ( save one ) of france did wisely ( according to the last cited authour ) dispose , or rather retain that office , as the best jewel of that kingdome , which yet must yield to this . but in a word , the jurisdiction of the admiralty of england may not unaptly be compared to that tree in the island of fierro , being one of the sept. insulae of the canaries , which as historians tell us , doth with the droppings of his leaves yield water for the sustenance of the whole island ; it is farther added , that the moors having taken that island from the christians , attempted to fell down that tree , but each blow recoyled on the striker . the former part of this strange relation with a small variation passes for a truth , as known unto and acknowledged by most of the ancient travellers and geographers ; the other part being probably but a fabulous addition , to keep hands off , has not ( as the other ) the credit of an application . to conclude , if this chapter seems to a genius more ratified by acuteness for apprehension , then endued with patience for expectation , more prolix then may be regularly consistent with a treatise only by way of summary view , let him only consider , that where eagle-eyes , who are seldome dazeled with too much light , are to be dealt with , it may be less dis-ingenious to borrow a point of expatiation , then to remain too much in debt to the truth for want of room to display her beams in . chap. iv. of persons maritime ; as also , of such things as are properly cognizable within the jurisdiction of the admiralty of england ; and in what method it proceeds to judgement . there are but three things that seem specially to illustrate the splendour of a jurisdiction , viz. sceptrum majestatis , or the power and legal authority of the prince , as to the constitution thereof ; codex administrationis , or the right administration of justice ; and gladii potestas , vel gladius executionis , or the coercive power . a that jurisdictions thus constituted are inter regalia principum , no person not dis-principled will deny ; so as what was long since the law as to the emperour in point of jurisdiction within the empire , imperator quoad jurisdictionalia dominus totius mundi appellatur , b is the same and as true in absolute kings and princes within their own kingdomes , dominions , principalities and territories ; and no wonder , in that kings and princes tantum possunt in suo statu , quantum imperator in imperio . c some without lisping say , that a king in his kingdome hath a farre greater right and interest , then the emperour hath in the empire ; for that a king is loco domini , and his kingdome is more assimilated unto & hath a greater resemblance with that which is dominiū , properly so called , then with that which is but simply regimen . d the emperour is not proprietarius , but chief governour of the empire ; e and that only by election , not by succession as the other . f now as the seas belong to princes in respect of jurisdiction and protection ; g so also in them properly resides the right and power of commissionating ministers of justice for the due exercise and administration thereof , in decision of all matters , whether civil or criminal within their cognizance according to the known laws of the sea , not contradicting the statute or municipal laws of that kingdome or state , whereof the said prince is next and immediately under god supreme . h as to persons maritime , it might be considered who they are that more peculiarly are of marine capacities , and properly may be said to be within the jurisdiction of the admiralty ; what their rights , priviledges and immunities are ; and what their office or duty respectively is ; likewise as to things properly maritime , it might be considered either as they be in respect of the actions thence arising , civile , and respecting only commodum privatum , between party and party , whether it be contractus or quasi contractus , either by any perpetual known rights , or by some casual occurrence ; or criminal , and respecting the fiscus in reference ad utilitatem publicam ; but that the design of this treatise is not to expatiate in the law on any of these , but only ( as most adequate to a summary view of the admiral jurisdiction ) to touch quasi in transitu what referres to each of these under its own proper head , and no farther then may be of use for the clearer discovery of the subject matter of the jurisdiction of the admiralty of england ; without engaging into controversal points ; chusing rather in a treatise so compendious to be wind-bound in our own ports , then to lanch forth into the wide ocean of the maritime laws touching this subject , specially in an english bottome , having an eye to the burden of the vessel , and for whose accompt this cargo was first shipp'd , whither bound , and for whom consigned ; as also how disadvantageous it might prove for the principals to have the returns of their expectation only in the arbitrary altercations of cross-opinions , rather then in such stapletruths of the law as are not only currant in all the navigable parts of the world , but of most use and practice in the admiralty of england . for these reasons the reader may expect only a taste of admirall varieties , and therein no more then may serve to excite his impatience after the excellency of that which in a set treatise for this purpose might in its proper dialect and due latitude be emitted by an abler artist . all maritime affairs are regulated chiefly by the emperial laws , the rhodian laws , the laws of oleron , or by certain peculiar and municipal laws and constitutions appropriated to certain cities , towns and countries bordering on the sea , within or without the mediterranean , calculated for their proper meridian ; or by those maritime customes and prescriptions or perpetual rights which are between merchants and mariners , each with other , or each among themselves . this maritime government and jurisdiction is by the king as supreme , as well by sea as at land , concredited with the lord high admiral of england , who next and immediately under the prince hath the chief command at sea , and of sea-affairs at land. this lord high admiral hath several officers under him , some of a higher , others of a lower form ; some at land , others at sea ; some of a military , others of a civil capacity ; some judicial , others ministerial . such as are chief in the judicial capacity are in the law known by the style of magisteriani , or judges of sea-faring debates and all maritime controversies ; whereof one being the judex ad quem in all maritime causes of appeal from inferiour courts of admiralty , is with us known by the style of supremae curiae admirallitatis angliae judex ; within whose cognizance in right of the jurisdiction of the admiralty by the sea-laws , the laws and customes of the admiralty of england , are comprized all matters properly maritime or any way pertaining to navigation . the judicial proceedings wherein are summary , velo levato , & sine figura judicii . as by warrant of arrest or other original mandate ; execution and return thereof ; interposition of caution given by the arrested for his legal appearance according to the tenor of the said warrant of arrest ; appearance and introduction of sureties by way of stipulation or judicial recognizance in the summe of the action , de judicio sisti , de judicato & expensis solvendis , cum ratihabitione procuratorii ; as also the plaintiffs caution to pay costs in case he fail in his suit ; contempt in case of non-appearance , and forfeiture of the said caution in case of such contempt ; offering the libel in case of appearance ; litis contestation or joyning of issue ; decree for the defendants personal answer upon oath to the said libel exhibited against him ; a decree for a viis & modis in case of a non inventus ; a decree against the sureties to produce the party principal in judicio ; production of him accordingly ; his answer upon oath to the libel ; production of witnesses ; compulsory against such witnesses as will not appear without it ; commission for examining of witnesses at home , or sub mutuae vicissitudinis obtentu beyond sea ; the oath of calumny by both parties , if they please ; exception against the witnesses ; the supplementary oath ; exhibition of instruments ; publication of witnesses ; conclusion of the cause ; sentence definitive ; appeal made within fifteen days of the said sentence ; assignment ad prosequendum , prosecution of the appeal ; remission of the cause to the judge a quo ; decree for execution , and sentence executed accordingly . beside the other way of proceeding by arrest of goods , or of goods in other mens hands , and so to a primum decretum ( as to the possession ) upon four defaults ; and thence after one year ) to a secundum decretum ( as to the propriety ) in case of nonintervention ( upon laying down the costs of the prim. decret . ) in the interim . in the proceedings there may be also reconvention , also sequestration of goods lite pendente ; and sentence interlocutory , as well as definitive ; with many other particulars which may or may not happen according as the court sees cause and the merits of the case require . within the cognizance of this jurisdiction are all affairs that peculiarly concern the lord high admiral , or any of his officers quatenus such ; all matters immediately relating to the navies of the kingdome , the vessels of trade , and the owners thereof , as such ; all affairs relating to mariners , whether ship-officers or common mariners , their rights and priviledges respectively ; their office and duty ; their wages ; their offences , whether by wilfulness , casualty , ignorance , negligence , or insufficiency , with their punishments . also all affairs of commanders at sea , and their under-officers , with their respective duties , priviledges , immunities , offences , and punishments . in like manner all matters that cnocern owners and proprietors of ships , as such ; and all masters , pilots , steersmen , boteswains , and other ship-officers ; all ship-wrights , fisher-men , ferry-men , and the like ; also all causes of seizures and captures made at sea whether jure belli publici , or jure belli privati by way of reprizals , or jure nullo by way of piracy ; also all charter-parties , cocquets , bills of lading , sea-commissions , letters of safe conduct , factories , invoyces , skippers rolls , inventories , and other ship-papers ; also all causes of fraight , mariners wages , load-manage , port-charges , pilotage , anchorage , and the like ; also all causes of maritime contracts indeed , or as it were contracts , whether upon or beyond the seas ; all causes of mony lent to sea or upon the sea , called foenus nauticum , pecunia trajectitia , usura maritima , bomarymony , the gross adventure , and the like ; all causes of pawning , hypothecating , or pledging of the ship it self , or any part thereof , or her lading , or other things at sea ; all causes of jactus , or casting goods over board ; and contributions either for redemption of ship or lading in case of seizure by enemies or pyrats , or in case of goods damnified , or disburdening of ships , or other chances , with average ; also all causes of spoil and depredations at sea , robberies and pyracies ; also all causes of naval consort-ships , whether in war or peace ; ensurance , mandates , procurations , payments , acceptilations , discharges , loans or oppignorations , emptions , venditions , conventions , taking or letting to fraight , exchanges , partnership , factoridge , passagemony , and whatever is of maritime nature , either by way of navigation upon the sea , or of negotiation at or beyond the sea in the way of marine trade and commerce ; also the nautical right which maritime persons have in ships , their appar●● , tackle , furniture , lading , and all things pertaining to navigation ; also all causes of out-readers , or out-riggers , furnishers , hirers , fraighters , owners , part-owners of ships , as such ; also all causes of priviledged ships , or vessels in his majesties service or his letters of safe conduct ; also all causes of shipwrack at sea , flotson , jetson , lagon , waiffs , deodands , treasure-trove , fishes-royal ; with the lord admirals shares , and the finders respectively ; also all causes touching maritime offences or misdemeanours , such as cutting the bovy-rope or cable , removal of an anchor whereby any vessel is moared , the breaking the lord admiral 's arrests made either upon person , ship , or goods ; breaking arrests on ships for the king's service , being punishable with confiscation by the ordinance made at grimsby in the the time of rich. . mariners absenting themselves from the kings service after their being prest . impleading upon a maritine contract or in a maritime cause elsewhere then in the admiralty , contrary to . the ordinance made at hastings by ed. . and contrary to the laws and customes of the admiralty of england ; forestalling of corn , fish , &c. on ship-board , regrating , and exaction of water-osficers ; the appropriating the benefit of salt-waters to private use exclusively to others without his majesties licence ; kiddles , wears , blind stakes , water-mills , and the like , to the obstruction of navigation in great rivers ; false weights or measures on ship-board ; concealings of goods found about the dead within the admiral jurisdiction , or of flotsons , jetsons , lagons , waiffs , deodands , fishes royal , or other things wherein the kings majesty or his lord admiral have interest ; excessive wages claimed by ship-wrights , mariners , &c. maintainers , abettors , receivers , concealers or comforters of pyrats ; transporting prohibited goods without licence ; draggers of oysters and muscles at unseasonable times , viz. between may-day , and holy-rood-day ; destroyers of the brood or young fry of fish ; such as claim wreck to to the prejudice of the king or lord admiral ; such as unduly claim priviledges in a port ; disturbers of the admiral officers in execution of the court-decrees ; water-bayliffs and searchers not doing their duty ; corruption in any of the admiral-court-officers ; importers of unwholesome victuals to the peoples prejudice ; fraighters of strangers vessels contrary to the law ; transporters of ptisoners or other prohibited persons not having letters of safe conduct from the king or his lord admiral ; casters of ballasts into ports or harbours , to the prejudice thereof ; unskilful pilots , whereby ship or man perish ; unlawful nets , or other prohibited engines for fish ; disobeying of embargos , or going to sea contrary to the prince his command , or against the law ; furnishing the ships of enemies , or the enemy with ships ; all prejudice done to the banks of navigable rivers , or to docks , wharsfs , keys , or any thing whereby shipping may be endangered , navigation obstructed , or trade by sea impeded ; also embezilments of ship-tackle or furniture ; all substractions of mariners wages ; all defraudings of his majesties customes or other duties at sea ; also all prejudices done to or by passengers a shipboard ; and all damages done by one ship or vessel to another ; also to go to sea in tempestuous weather , to sail in devious places , or among enemies , pyrats , rocks , or other dangerous places , being not necessitated thereto ; all clandestine attempts by making privy cork-holes in the vessel , or otherwise , with intent to destroy or endanger the ship ; also the shewing of false lights by night either on shore or in fishing vessels , or the like , on purpose to intice sailers , to the hazard of their vessels ; all wilful or purposed entertaining of unskilful masters , pilots or mariners , or sailing without a pilot , or in leaky and insufficient vessels ; also the over-burdening the ship above her birth-mark , and all ill stowage of goods a shipboard ; also all importation of contrabanda goods , or exportation of goods to prohibited ports , or the places not designed ; together with very many other things relating either to the state or condition of persons maritime , their rights , their duties , or their defaults ; all which only to enumerate would require a volume of it self ; these therefore may suffice for a hint of persons and things properly cognizable within the jurisdiction of the admiralty of england ; omitting what might be here likewise added as to the naval military part within the cognizance of the said jurisdiction ; as that ships in the brittish seas not amaining at the first summons to any of his majesties ships , may be assaulted and taken as enemies ; that no prize ought to be carried from the fleet without the admirals leave ; that all above hatches , saving the ship-furniture , ought upon a seizure jure belli to goe to the captors ; that the vessels of forraigners met with at sea , may be visited and examined , if suspected , specially in times of warre , their cocquets , pasports , charter-parties , invoyces , bills of lading , ship-roll , with other instruments & ship-papers perused , that so , if there be cause , they may be brought before the admiral . there are many other particulars , referring as well to the civil as to the criminal part of this jurisdiction , which might be here inserted ; but the design of this compendious treatise being ( as formerly hinted ) rather to touch then handle things , it may not be expected that the great continent of the admiralty should be comprized in so small a map. to conclude therefore with that great oracle of the civil law , baldus , touching the marine jursdiction . in mari jurisdictio est , sicut in terra . nam mare in terra ( h. e. ) in alveo suo fundatum est , quum terra sit inferior sphaera : & videmus de jure gentium , in mari esse regna distincta sicut in arida terra : ergo & jus civile ( id est ) praesciptio illud idem potest ( in mari scilicet quod in terra ) operari . so that all such , as out of a subtile humour would fain insinuate into the world , as if there were no such thing as jurisdictio maris , or dominium maris , with its prescript limits and bounds ( some arguing from the perpetual motion of that liquid element ; others , from a supposed parity between the sea and the air in point of community ) are by this learned oracle left without any hopes or possibility of the least orthodox support for their anti-thalas-monarchical opinion ; for in this place he is positive , that both the jurisdiction and the dominion of the sea , with their distinct limits and bounds , as well as that of the land , are duly constituted , and that not by force and power , but by law , not only by the civil , but also by the law of nations ; and this not in the emperours alone , but also in such kingdomes and states as by prescription , custome , or otherwise may claim the same . chap. v. of laws and jurisdictions in general ; with the several kinds and degrees thereof . it is recorded in the historical part of the law by that famous lawyer of millayne , jason maynus , ( who flourished about the year of our lord , and taught at padua , where he dyed anno . a upon this subject of jurisdictions , that raphael fulgosius , that jaspis virtutum , utroque jure stupor , as his epitaph in s. anthonies church at padua ( where he also dyed above one hundred years before the other ) styles him , b when he was a young student in the laws , was wont to say that of other matters and points of law he could attain to some understanding by his private study and chamber-disquisitions , but in this point of jurisdictions he could understand nothing at all but what he heard in the schools voce magistra . c of such difficulty is the subject matter of this treatise , and yet with what confidence do some illiterate persons , ( like boyes at foot-ball ) toss and play with jurisdictions , even almost to the tripping up the heels of magistracy it self . jurisdictions are things of much tenderness as well as profoundness , and must be gently touch'd as well as deeply weigh'd ; if persons in juridical authority be styled mortal gods , then jurisdictions are in some sense things sacred , and may not be approached unto but with civil reverence ; nor is the acquisition of the profound knowledge of the law touching jurisdictions a pomeridian work for sollicitous students , much less obvious to rural capacities . a right understanding what law is , gives the clearest prospect to a discovery what jurisdictions are ; the civilians do succinctly and fully define law , lex est sanctio sancta , jubens honesta , prohibens contraria . law is a decree not to be violated , commanding things honest , forbidding the contrary . plato in his definition of law , says it is a reasonable rule , leading and directing men to their due end for a publick good , ordaining penalties for them that transgress , and reward for them that obey . and cicero defines it to be the highest and chief reason graffed in nature , commanding those things which are to be done , and forbidding the contrary . and of all laws , those of the empire , next to the jus divinum , seem to challenge the precedency in all forraign kingdomes and states ; though in this as not in their proper sphere they display not their beams with that lustre , for want of that encouragement and employment they deserve ; it is every mans duty to have the best and highest thoughts of the laws of his own country , yet to oppose them to the ancient emperial laws , either as to the theory thereof , with their numerous host of most learned interpreters , or as to the practick , in the pleadings of the highest courts of the greatest part of the christian world , in the many judgements and decisions of the several rotes of italy at rome , at naples , at florence , at genoa , at bononia , at mantua , at perusium , and the rest ; in the judgements of the imperial chamber at spire , which is the last result of the german nation ; in the decisions of granado and other places of spain , and other kingdomes ; as in the arrests of the several courts of parliament in france , as paris , aix , burdeaux , grenoble , and the rest ; to oppose any municipal laws ( save our own ) to the ancient emperial laws in the latitude aforesaid , recitasse est refutasse , the very recital thereof is confutation enough , saving the honour due to the laws of our native country . it will not be denyed but that the great legislator of heaven and earth is the fountain of all laws , that is , law properly so called , had its origination from god himself . this is an undoubted position not only in christian religion , but such as the doctors of the gentiles and heathens themselves will easily admit ; for even among them such as assumed the legislative authority , and took upon them to prescribe laws , would at the enactment thereof invocate their false gods , and endevour to father them on one or other of their heathenish deities , as minos who gave laws to the cretians , on jupiter : numa , who gave laws to the romans , on aegeria nympha : zoroaster , who to the bractians and persians , on horomasis : trismegister , who to the egyptians , on mercurius : charondas , who to the thurians , on saturn : lycurgus , who to the lacedemonians , on apollo : draco and solon , who to the athenians , on minerna : mahomet , who to the arabians , on the angel gabriel . thus all agree in this , that law hath the image and superscription of some supernaturall powers , and is more ancient then adams fall , as is evident by necessary though sad consequences ; for without law there had been no transgression . in immediate subordination to the divine and natural law written in the tables of the heart , came the jus gentium , or the law of nations , when men first began to have mutual commerce with each other , for thereby was introduced a kind of necessity for all nations to observe some certain rules as law , without which no society of men in way of reciprocal negotiations could subsist ; which law doth indeed flow from the law of nature ; insomuch that cicero was of opinion , that in all matters and affairs of the world whatever was the consent and concurrent approbation or allowance of all nations , that was to be understood the law of nature ; next unto which is the jus humanum & civile , being a distinct law both from the law of nature and also from the jus gentium , and seems to be then born into the world , when men first of many individuals began to compact themselves into one society , and when they first began to incorporate themselves into bodies politick , which in the worlds infancy seems to be when cain built the city enoch ; for civil laws seem to have their origination then when cities began first to be built , magistrates to be constituted , and ordinations of government to be committed to writing ; for indeed civil law properly so called , is no other then that which every city constituted and enacted for it self , and for its own peculiar government ; which law also hath its foundation laid in the law of nature , from whence as from a fountain are derived divers lesser channels and rivulets according to the great variety of places , persons , times and transactions ; and the civil law of the roman empire in common acceptation and mode of speech is now for the antiquity , excellency , universality , and authority thereof called the civil law by way of eminency , the name and appellation of the civil law being now properly appropriated to the emperial law and constitutions , as that law which was the law currant in all the dominions of the roman empire , and is at this day in most parts of the whole christian world . beside these laws peculiar to a due administration of justice in matters meerly secular , there was also at the worlds infancy a kind of sacerdotal law or law of the priesthood , when men congregated first began to adore the ●reat god in the way of a publick wor●hip ; for in the first constitution of common-weals and cities , it was necessary to establish certain laws peculiar to the priesthood ; for it cannot be imagined , but that when men first began to offer their first-fruits and to sacrifice to god , there was then some law in being for the worship of the deity ; nor ought it to be doubted but that in those days there was a true church of beleevers , as also true sacrifices , and ( as some hold ) true sacraments ; and therefore not to be conceived but that there was also some ecclesiastical law then in force , which afterward became much more clear under moses law. and by way of additament to this , in tract of time was the canon law established in every christian common-wealth , which received not ( as some suppose ) it 's original at that time when the general and universall councils began to be first held , as under constantine , but in the days of the apostles themselves , who gave divers rules and made many canons touching divine w●rship , and in order to the salvation of souls . and thus laws being introduced into the world , it could not be but there must be jurisdictions also , without which the law is but a dead letter . for the clearer understanding whereof , know that the word [ jurisdictio ] without the letter [ c ] etymologizeth it self . d for it is not so called from [ juris ] and [ dictio ] as some would have it , but from [ juris and [ ditio ] . and so jurisdictio is quasi juris potestas . e but this pleaseth not calvin , who in this matter following ferrand ▪ f would derive it from [ juris & dictio ] and doth charge accursius with an errour in judgement for holding it to be derived from [ juris & ditio ] though he confesses that bartol himself and many others do follow accursius therein ; whose opinion seems to have the best congruity with reason in the energy of law , though ferrand's opinion seems to out-weigh , if the comprized matter should be ballanced only by the letters of the word ; but indeed of the two accursius hath by farre the more numerous retinue . so that jurisdictio taken in the large sense , as the genus generalissimum or plenissima jurisdictio , is nothing else but potestas g de jure publico introducta h cum necessitate juris dicendi i & aequitatis statuendae . k the word [ jurisdictio ] taken in this large sense , doth properly signifie that office or function which the lawful magistrate doth hold and exercise by the ordinary right of his just power and authority . l of jurisdictions taken in this large sense , there are three species or kinds in the law ; there is imperium merum , imperium mixtum , & jurisdictio simplex . and it is called imperium , because it proceeds from the authority of the judge , and not from any right inherent or residing in the party . the first of these , viz. imperium merum , is that jurisdiction , which respecting only the publick utility is exercised officio judicis nobili , and by way of accusation . m this hath the power of the sword contra homines facinorosos , and all capital offenders . n and is so called from its purity , simplicity and immixture with either of the other kinds of jurisdictions . o of this imperium merum bartoll makes six several degrees p which jason contracts into four , but zasius into three . of these six degrees of imperium merum , the first is merum imperium maximum ; and this resides only in the prince , or in the supreme authority . q in this bartol doth lodge the legislative faculty or power of enacting laws ; also the calling a general council , or the summoning a parliament ; also the power of confiscation of delinquents goods . in a word , under this merum imperium maximum are contained all things competible to princes or the supreme magistrate . r and to these particulars which bartol mentions under this head , the dd do add one more , and that is the creating of tabellions general or publick notories . s the second degree is merum imperium majus . this extends to the taking away of life , and hath the power of the sword. t under this head also is that potestas gladii in homines facinerosos forementioned ; u but derivative from the prince . the third degree is merum imperium magnum , under which head is comprehended deportation or perpetual banishment . w but these two last degrees jason comprehends under one and the same head , x for says he , under the power of the sword in facinerosos homines is comprehended three kinds of capital causes , viz. first , when the life natural is taken away either in whole or in part , as by dismembration , amputation , or mutilation . y secondly , when the life civil is taken away , as by loss of liberty and by perpetual imprisonment ; for such are dead in law. thirdly , when a man is deprived of his franchise , freedome or priviledges which he had in any place by a natural or civil right . z the fourth degree is merum imperium parvum , under which head is comprehended relegation or temporal exilement ; a which is no more then an extermination , whereby a man is commanded out of the confines of his own country for a season . and although deportatio & relegatio be often used promiscuously in the law for one and the same , yet the law discriminates them by very different characters ; for in deportation there is a perpetual , in relegation but a temporal banishment . and as they differ in the circumstance of time , so also in the circumstance of place ; for in relegation the party is only circumscribed , and it's part of his punishment that he shall not go out of the limits of such a certain place . so shimei the benjamite that cursed david in his way to mahanaim , was after davids death confined by his son solomon unto hierusalem , and not to pass over the brook kidron ; who upon occasion of his going afterwards to gath , exceeded the limits of his circumscription , and for so doing was put to death by benaiah at the kings command . but now in deportation the party is not so confined to or circumscribed by any certain place , but is quite banished and exiled out of all the precincts of his own country . again , in deportation the party cannot take his goods with him , in relegation he may ; but this difference holds not always . likewise under this head is comprized every corporal punishment , b provided it be tortura ad poenam delicti ; for if it be tortura only ad investigationem veritatis , then it may be otherwise . the fifth degree is merum imperium minus , under which is comprized that moderate coertion by corporal castigations which are ad vindictam maleficii , to distinguish it from coertio verbalis per officium merum , and is competible with the office or function of magistrates in authority . c also cognizance of such crimes as are of the lesser and inferiour kind . d of this and the last precedent degree or member of imperium merum , jason makes but one , as forme●ly but one of the second and third degrees ; so that although here be six species , degrees , or members of imperium merum , according to bartolls accompt , yet here are but four according to jasons computation , and to him in this matter the dd do generally incline rather then unto bartoll . the sixth and last degree is merum imperium minimum , which comprehends whatever is imposed by way of pecuniary mulct upon some crime , e provided such pecuniary mulct be in reference to the publick utility , and not in satisfaction of private injuries . the second species or kind of jurisdictio taken in this large sense , is imperium mixtum ; and it is that jurisdiction which respecting only private utility is exercised officio judicis nobili . f it is so called , as being of a mixt nature , because it consists partly of imperium merum , and partly of jurisdictio simplex ; and as it consists in commodo pecuniario , respecting only private utility , so it doth participate of jurisdictio simplex , and is differenced from imperium merum . of this imperium mixtum , bartol as in the former makes other six degrees , which jason contracts to three , and calls them gradum maximū , medium , & minimū g the first and second of bartols degrees jason doth join in one , as being both competible only to the prince or supreme magistrate . the third and fourth of bartols degrees he likewise joyns in one , as both requiring plenam causae cognitionem , and both incompetible with interiour magistrates . so likewise of the fifth and sixth degrees . now because this last division of jasons seems to take best with the most part of the dd , as being the most succinct yet comprehensive of all , jasons method shall here be followed , as formerly was bartols . the first degree then of imperium mixtum according to jasons account is imperium mixtum maximum , which pertains solely to the prince , and concerns only actus voluntarios ; h yet it may be al●o in the ordinary magistrate , but then it must be by way of derivation from the prince . i this imperium mixtum maximum comprehends veniam aetatis impetranti , k that is , that whereas by the civil law a man is held a minor and under age until he attain unto the age of twenty five years , the prince might at his petition grant veniam aetatis impetranti , that is , if such minor being a male could prove himself to be of the full age of twenty years , or being a female could prove her self to be of the full age of eighteen years , then might such by way of petition impetrare veniam aetatis à principe , that is , they might for the better management of their estate request the prince's favour for an exemption from their minority , and to be held and taken as of full age , that is , as of the age of twenty five years , to all intents and purposes of law whatever ; only they could not by vertue of such priviledge alienate their praedials or immoveables without a special decree for that purpose ; and this priviledge was obtainable only by the prince's grant. l also under this head is comprehended that which the civilians call arrogatio , which is a kind of adoption , but something different from it ; m for the prince did interponere authoritatem arrogationi , n likewise under this head is comprehended legitimation , or the power of legitimating such as are unlawfully begotten ; o and also emancipation , which , properly so called , is a judicial and solemn transference , alienation , or vendition of free-born children ( for manumission relates only to servants and bond-men ) from and out of the dominium , power , and jurisdiction of their natural parents into the power ●nd right of another , had and done by the authority of the competent judge with the concurrency and mutual consent of both parent and child . by such emancipation the patria potestas is dissolved , si filium suum forisfamiliaverit ; for it is a kind of vendition or sale by a tradition or delivery of his child out of his own right over to another , who thereby becomes as it were pater fiduciarius , or a father in trust to the child ; although anciently such emancipation was held no less then civil death to the child , or then an ingressus religionis . p likewise under this head is comprehended that which the law calls supplicatio , which is a cognition or retractation of a judicial sentence , from which lies no appeal , by way of supplication , pertaining only to the prince , and in the roman government to the praetorian praefect . q this is that remedy of a judicial sentence which the canonists call revisionem sententiae , or the review of a sentence . r this is used but very rarely and only in extraordinary cases , but chiefly against the sentence of such judges as from whom by reason of their eminency non licet appellare . s in such cases the imploring of the grace and favour of the prince or supreme authority is properly called supplicatio . the second degree is imperium mixtum medium , under which is comprized a full and plenary cognition of a cause , with coertion as well real as personal ; of such is the putting a man into possession by vertue of a secundum decretum ; likewise restitutio in integrum ; also the expulsion or outing another of his actual possession ; t in like manner under this head are comprehended all matters that require a plenary cognition , although it hath not real or personal coertion ; as to give such a possession of goods as shall convey and carry a right of property with it ; also to pronounce for the putting into possession ex secundo decreto ; also to interpose ones authority for the alienation of things appertaining to minors ; also in transactions of alimony , and the like . u the third and last degree is imperium mixtum minimum ; and this consists in such things as are expedited officio judicis nobili , but do not require a plenary cognition as the former , but are determined by a summary proceeding , and have respect only to private utility . of this kind is the putting into possession by a primum decretum ; also any possession which to the cognizance of the cause doth not require a proceeding de plano , but only summarily & sine strepitu judicii . w of this kind also is the granting of possession to minors ex edicto carboniano , so called from cneus carbo the praetor , and authour of that edict . for when upon the death of a parent intestate any question or controversie arose to the pupil or minor , either male or female by the masculine line , concerning the inheritance or goods of such parent ; as also concerning the state , quality or condition of such minor , or whether he were the legitimate child of such parent ; in all such cases da●ur carboniana bonorum possessio , saith the law ; that is , such minor shall by that edict be put into possession of the said goods , he first giving good caution or security not to diminish the same during his minority ; and in the mean time the dispute in law or controversie touching the right of title to the said goods , as also touching the state , quality and condition of such minor , is by the same edict to be deferred and put off untill he come of full age . x likewise under this head falls manumission , y or the setting at liberty such as were under the servitude and dominium of others , and refers properly to servants that were under the domination of masters , as emancipation doth to children free-born , that were under the power of their natural parents ; of these kinds are causae libertinitatis , & causae ingenuitatis . z the third and last species or kind of jurisdictio taken in this large sense is jurisdictio simplex ; and it is that jurisdiction which is exercised officio judicis mercenanario ; respecting only private utility , jure actionis . a and being thus exercised officio judicis mercenario , it differs from both the former , viz. both from imperium merum , and from imperium mixtum . of this jurisdictio simplex , which in truth is jurisdictio propriè stricte & specialiter sumpta , bartol as in the former makes no less then six degrees ; but jason again as formerly reduces and contracts them to three , viz. gradum magnum , medium , minimum . b which method now follows , as being the acceptablest with the modern dd. and distinctly comprehensive of all , that the six degrees which bartol makes , are capable of . under the first of these , viz. gradum jurisdictionis simplicis magnum , are comprehended such as the law looks on as matters of great prejudice ; such are causae liberales , wherein are controverted all disputes concerning liberty or servitude , freedome or bondage , ingenuity ( not of wit , but of birth ) or libertinity . c these causae liberales , are understood in the law as certain species opposite to such things as are either of merum or mixtum imperium . d the actions that hence do arise are as formerly actiones liberales , cogni●able only before the superiour judges . e the truth is , such actions as these that concern the state , quality , condition , or reputation of perions are in the law termed causae arduae , & negotium arduum . f and therefore inferiour judges ( who by interpretation of law according to the civil laws account are judices municipales g are no way competent to take cognizance of such cases . h likewise under this head fall all causes , wherein upon any action any castigations , coertions , restraints , or other corporal punishments in execution of some definitive sentence do happen , i according to that smart proverb in law , qui non habet in aere , luat in corpore . k but to make it yet more clear ; the actions specially aimed at and properly intended hereby in the law that fall under this head , are such cases as in themselves and according to their nature are criminal , but yet are civilly proceeded in or prosecuted , quando ex causd descendenti ex delicto , quis fuit condemnatus civiliter . l or such actions quae civiliter ex maleficiis intentantur . m the second degree of jurisdictio simplex is gradus medius , under which are comprized all such peouniary causes as in value exceed treoent ' aureos . n this aureus among the ancients was in value about our english noble , or six shillings and eight pence ; but in justinians time it was something more , viz. about the value of an angel in our gold coin. o which is something less then centum cestertii , according to the roman account , which some would have the aureum antiquum to amount unto , p if every cestertius must be in value three half pence farthing according to our account . q the third and last degree of jurisdiotio simplex comprehends only such small and petty summes , as will not defray the charges of a plenary and judicial order of proceeding , and therefore they are heard and determined summarily & velo levato . r bartol would state , liquidate and ascertain these petty summes to the value of centum aureos : s others to twenty , others to ten duckets . t but jason tells us plainly , that the truth and the more received opinion is , that in such cases the just and exact values are not determined or ascertained in the law , but left ad arbitrium judicis , u according to that rule in law in ff . de jur . delib . w and thus although here hath been distinctly touch'd each of the three species or kinds of jurisdiction , taking the word jurisdictio as the genus generalissimum ; and although here have been given some instances for the more clear description of each member or degree of each species thereof ; yet all this would be but imperfect if such things as are or may be both of merum imperium and of jurisdictio simplex also , but in divers respects , should be omitted . of this kind therefore is that tortura , formerly hinted at ; which , when it is imposed or executed ad poenam , or in criminal causes ad veritatem eruendam , is of merum imperium ; x but when in civil causes it was wont to be used or imposed , because the witnesses did vacillare , and were inconstant , staggering or wavering in their testimony , it was then of jurisdictio simplex . y in like manner all moderate and light correction or punishment being inflicted ad poenam levis delicti , is of merum imperium ; but being imposed for contempt or contumacy in civil actions , it is of jurisdictio simplex . z also , excommunication , when pronounced ex publica causa against rebellious and contumacious persons , is of merum imperium ; but being pronounced ad instantiam partis , it is of jurisdictio simplex . a so likewise restraint or . imprisonment , when imposed by the canon law ad delictum puniendum , is of merum imperium ; when otherwise imposed , it is of jurisdictio simplex . b lastly , appeals in all criminal causes are of merum imperium ; but in civil causes they are both of jurisdictio simplex , and of merum imperium also . c there are also in the law ( for these things are only hinted to the memories of such as know the law ) several other distinctions of jurisdiction . such as jurisdictio voluntaria & contentiosa . d but this is a distinction in respect of the parties litigant ; the former distinctions being in respect of the judges themselves . there is also jurisdictio ordinaria & delegata ; which though a very common received distinction from the speculator , e yet in truth 't is less true then common , and is reproved by bartol , because the one differs not from the other according to the law of distinctions , both being in their nature one and the same , though diversified in the exercise thereof ; for the judge delegate doth but exercise jurisdictionem delegantis . f there is also jurisdictio prorogata ; as when the parties litigant do of themselves consent unto a jurisdiction in one , who without such consent were no judge in the case ; g but this seems more like a compromise or arbitrary decision , then like a jurisdiction properly so called . there are several other distinctions of jurisdiction in the law , here purposely omitted as being not so pertinent to the design in hand ; this therefore that hath been said may suffice for a hint to all such appendexes on the law , as sollicite rather for the lawyer then the clyent , to learn what a jurisdiction in the eye of the law is , before they attempt the invasion thereof . to apply the premises , and so to conclude this point with omphalius , that famous and modern german lawyer , h jurisdictio est res indivisibilis : si tamen ejus domini in eodem territorio dissentiant in exercitio jurisdictionis , pertinebit ad superiorem potestatem , conoordia partes interponere , vel usum jurisdictionis exercendae dividere . this seems to be the admiralties case in terminis . all jurisdictions are essentially radicated only in the prince or supreme magistrate . i the law ranks them inter regalia principum . k the right and power of the conservation of jurisdictions doth lodge and reside properly there , from whence they had their being and origination . jurisdictiones omnes ab ipso principe velut rivuli à fonte suo manarunt . l when the prince or supreme authority ex plenitudine potestatis doth create or constitute a jurisdiction , he doth not devest himself of the right of expounding his own grant , according to that in the law , m jurisdictio licet concedatur à principe , semper tamen inhaeret ejus ossibus . so that when differences do arise concerning the rights or demands , the ampliations or restrictions , the latitude or boundaries of jurisdictions , the prince is the competent judge to decide and reconcile ; in this case therefore to caesar is the appeal . chap. vi. of prohibitions ; their several kinds , causes and effects in the law. having spoken of jurisdictions in general , it may not now be of less consequence to enquire , of what superseding faculty a prohibition in its original and due intendment of law may be in point of right and power for the removal of the cognizance of causes from one jurisdiction to another . and although in the precedent chapter there hath been a clear and distinct prospect of the matter of jurisdictions out of the civil law , being the best and indeed the only law that could with such transparency present us with an object of that depth and difficulty , yet now being to look through other mediums , so clear a sight of prohibitions may not be expected to be presented in the same glass ; for prohibitio in the sense now intended , may not be taken for interdictum , quo praetor vetat aliquid fieri ; a nor be thence dissected into its several kinds and distinctions according to the analogy of civil law ; this would be as little pertinent to the present purpose in hand , as rationally it could expect of credit or belief out of its proper sphere . suffice it therefore that it be described under such rules and characters as the law of this realm doth not disown . it shall therefore only be premised what boerius , that famous civilian says of it ; b that a judge in matters cognizable before him , may prohibit such as are within his jurisdiction , from impleading any in another court to his prejudice ; and that an ecclesiastical judge may issue his mandate to a judge secular , prohibiting him from medling with matters of ecclesiastical cognizance . and the same boerius in another place c says , that in such cases of excess by the power of one jurisdiction exercised over another , the king is to decide the controversie . a prohibition in the sense most adequate to the purpose in hand , is a writ forbidding to hold plea in a matter or cause supposed to be without the jurisdiction and cognizance of that court where the suit depends ; sir thomas ridley calls it a commandement sent out of some of the kings higher courts of record , where prohibitions have been used to be granted in the kings name , sealed with the seal of that court , and subscribed with the teste of the chief judge or justice of the court , from whence the prohibition doth come , at the suggestion of the plaintiff , pretending himself to be grieved by some ecclesiastical or marine judge , in non-admittance of some matter , or doing some other thing against his right , in his or their judicial proceedings , commanding the said ecclesiastical or marine judge to proceed no farther in that cause , upon pretence that the same doth not belong to the said ecclesiastical or marine judge . but this description of the writ of prohibition , though large enough , yet not comprehensive enough ; for prohibitions may issue to courts that have neither ecclesiastical nor marine cognizance , as appears by the learned fitzh . who among sixty several cases by him mentioned , wherein a prohibition doth lye , doth not instance in any against the admiralty ; nor do the statutes ( though express as to prohibirions against courts ecclesiastical ) speak of any in express terms or in the letter of it as against the admiralty . hence probably it is that the authour of the terms of the law d makes no other description of a prohibition then this , viz. that it is a writ that lyeth where a man is impleaded in the spiritual court of a thing , that toucheth not matrimony , nor testament , nor meerly tithes ; and this writ shall be directed as well to the party as to the judge or his official , to prohibit them that they proceed no farther ; but if it appears afterwards to the judges temporal , that the matter is to be determined by the spiritual court , and not in the court temporal , then the party shall have a writ of consultation , commanding the judges of the court spiritual to proceed in the first plea. which description of the writ of prohibition is consonant to the statute of ed. . cap. . whereby it is provided , that he that sueth for a prohibition , shall make a suggestion and prove it by two witnesses ; and in case it be not proved true by two witnesses at the least in the court where the prohibition is granted , within six moneths next after the said prohibition ; then the party so hindred by such prohibition , shall have a consultation , and recover double costs and damages against the party that sued for the prohibition . and in the said description of a prohibition by the authour of the terms of law , there is not any thing express'd as to a prohibition against the admiralty , but only against judges in matters spiritual , wherein the court of admiralty is not concern'd ; by the proceedings whereof there is not ( as in the other once was ) the least pretence for any fear of dis-inheritage of the crown-rights , which will be agreed to be originally the causa finalis of prohibitions . whence it was long since observed and published by a learned civilian of this nation , e that this writ of prohibition in those days may well be spared ; for although it were some help to the kings inheritance and crown , when the two swords were in two divers hands ; yet now that both jurisdictions are settled in the king as the only supreme magistrate , there is little reason thereof . and indeed the jurisdiction of the admiralty of england was ever inherent in the crown of england ; so that there was never in that sense that parity of reason for prohibitions against the one as against the other . that which at first hath its origination from a principle of well-grounded policy , and is of good use in one age , may afterwards be otherwise in another , specially if the rule cessante ratione cessat lex should hold in this case as in others . the fiery brazen serpent when first erected , was of happy use ; yet when abused by the people , hezekiah brake it in pieces ; f yea , though of divine institution , yet when it became a snare to the people , that good king did not scruple to call it nehushtan . the court of admiralty is one of the courts temporal , one of the courts of our soveraign lord the king , and long since owned as such , as appears by the resolutions upon the cases concerning the jurisdiction of the admiralty in anno . if the court of admiralty be one of his majesties temporal courts , then the old argument of the conservation of the crown-rights , seems not to hold in this case , and only for that reason , as to prohibitions against the admiralty ; as well for that the said court is a court temporal , as that it is one of his majesties courts ; specially in cases that are either locally or materially maritime . it may not therefore be much material to inquire whether prohibitions do lye as well against temporal as spiritual and eccsesiastical courts ; for admitting a prohibition according to the learned fitzh . [ g ] to be a writ for the forbidding any court ; either spiritual or secular , to proceed in any cause there depending , upon suggestion that the cognition thereof belongeth not to the said court ; yet it is presumed that this doth not concern such cases as primo intuitu appear to be locally maritime , or according to the nature thereof have been time out of mind properly of the admiral cognizance ; for without doubt the suggestion mentioned in the said definition doth not in construction of law pretend to any thing beyond the very truth of what is suggested ; or so , as to transplea a cause from one jurisdiction to another , absque minimo fumo probationis , of the truth and reallity of the suggestion , or that the cognition of the cause belongeth not to the court prohibited . thus having seen what a prohibition is , which in truth is no more but this , viz. a charge by writ to forbear to hold plea either in some matter or manner , which ( as is supposed or suggested ) a man dealeth in beyond his jurisdiction , or otherwise then law will warrant ; it follows , that every prohibition is either prohibitio juris by the law it self ; or prohibitio hominis , where the ministery of a competent judge is used ; or prohibitio facti , of meer fact , where it hath no fufficient ground or foundation in the law : the second of these , viz. the ministery of a competent judge is so essential , as without which neither of the other can proceed . prohibitio juris is a very prohibition in it self , and therefore it is a contempt to sue against it . prohibitions of law are such as are set down by any law or statute of this land , whereby ecclesiastical courts are interdicted from dealing in the matters in such statutes contained . such are the statutes of ed. . cap. . whereby judges ecclesiastical are forbidden to hold plea of any matter , cause , or thing , being contrary or repugnant to or against the effect , intent , or meaning of the statute of westminster . cap. . the statutes of articuli cleri , circumspecte agatis , silva caedua , viz. ed. . cap. . the treatise de regia prohibitione , stat. ed. . cap. . such also is the statute of ed. . cap. . there are also other statutes declaring in what cases prohibitions will not lye ; such are the statutes of ed. . cap. , , . also ed. . cap. . & ed. . cap. . prohibitions of fact , are such as having no sollid foundation ( as the other ) on the laws and statutes of this kingdome , may yet pro tempore have some kind of operation like prohibitio juris , because therein also is prohibitio hominis , or the ministery of the judge or superiour magistrate . such prohibitions of fact ( where they happen ) may administer more matter for lawyers to work on , then possibly the merits of the cause require , and have in former times occasioned several complaints by reason of the perplexity of law-suits , uncertainties in matters of jurisdiction , multiplicity of litigious controversies , excess of charges , delayes of proceedings , retardations of justice , and the like . hence it was , that sir tho. ridley in his view of the civil and ecclesiastical law so long since on this subject said , h that the right of the supreme magistrate is not to be supposed by imagination , but to be made plain by demonstration . and so both the statute of ed. . cap. . is , whereby it is provided , that no prohibition shall issue , but where the king hath the cognizance , and of right ought to have ; which is very observable ; and also by the fore-mentioned of ed. . which prohibits ▪ prohibitions to be granted otherwise then upon sight of the libel , and other circumstances in the said statute expressed . by which it is intended , the meaning of the law-givers was not that every idle suggestion of every atturney should breed a prohibition ; but such only should be granted , as the judge according to law should think worthy thereof , if there were right to deserve it . where the said sir thomas ridley goes on and says , that as emulation between the two laws in the beginning brought in these multitude of prohibitions , either against or beside law : so the gain they brought to the temporal courts maintaineth them ; which also ( they are his words ) makes the judges that they sesse not costs and damages in cases of consultation , ( although the statute precisely requires their assent and assignment therein ) because they would not deterre other men from suing out of prohibitions , and pursuing the same . though this was the observation , and these the very words of sir thomas ridley upon this subject in his time , yet we may not thence inferre that so it is also now in our time , specially now that justice runs again in its proper channel , and her ballance equally poized ; it was too true that in late years of unhappy memory the said words and observation of that civilian were too sadly verified ; which now no doubt will in some short time ( as is already in a good degree ) be completely rectified . in order to a prohibition there is to precede such a suggestion as may be proved , not such a suggestion as is not capable of proof ; improbable suggestions lay no foundations ; non-entities are no basis for existencies ; it hath been a rule without exception ever since the creation , that ex nihilo nihil fit . by suggesting the place , where a contract is supposed to be made , to be at burdeaux in france in islington in the county of middlesex , seems to imply as if the alledging the place , ( viz. to be within the body of some county within the realm ) were essential for the entituling of that jurisdiction , where such suggestion is made , to a cognizance of the cause grounded upon that suggestion , so that the place seems to be of such jurisdictional weight , as not capable of being translocated by the highest strength of imagination , which may present strange things in apparitions , but cannot possibly enervate the energy of truths and reallities ; and thence possibly it is , that for prevention of improbable surmizes , as a suggestion may be quasi causa sine qua non of a prohibition , so the said statute of ed. . cap. . provides that probability by witnesses ( which cannot be without verity ) be a due requisite of suggestions . the lord coke upo● this subject of suggesting and surmizing , viz. of places beyond sea to be as within the body of some county within this realm , doth acknowledge , i that there is variety of opinions in the very books of the common law upon this point . this kind of suggesting and surmizing did in late years of fatal memory much impede the judicial proceedings of the admiralty , when it was no rare thing to meet with a suggestion of a contract to have been made or other thing done upon the land in some certain place within the body of some county , that really and in truth was made or done upon or beyond the seas , and farther possibly then the suggestor ever saw in a map. the civilians say , there are certain cases wherein prohibitio vim suam non exercet , whereof one is , quando aliquid prohibetur sinel causa ; and the law of this realm allows another , and that is , quando consultatio conceditur . prohibitions in the law there are of other kinds , though not so pertinent to the purpose in hand ; such is the writ indicavit , as in matter of tithes ; k this lyeth also for the patron , where the incumbent is impleaded for the advowson or right of patronage in a spiritual court ; though it lyeth not till the libel be brought to be viewed in chancery , et lis contestata ; l and it lyeth only before sentence is given in the ecclesiastical court , being afterwards void . lastly , a prohibition ceaseth and loseth his vertue after a consultation is granted , as appears by the statute of ed. . which declares in what cases a consultation is grantable ; which again is afterwards more full in the statute of ed. . cap. . whereby it is enacted , that a consultation shall be granted for default of proving the suggestion , and double costs and damages ( as aforesaid ) awarded to the party hindred by such prohibition , against him that so pursued the same . and where a consultation is once truly granted , the judge formerly prohibited , shall according to the statute of ed. . cap. . proceed in the cause , notwithstanding any other prohibition thereupon , provided the matter in the libel be not altered . chap. vii . of fictions ; what a fiction in law is ; how farre and in what cases fictions may be used according to the rules of law. by fiction is here intended no other then such as the law it self intends , no other then such as being authorised by law , and introduced upon a warrant of law , hath in operation the due effect of law. as for other fictions , the law understands them but as meer cyphers , tollerating none but such as are grounded upon and regulated according to the just principles of the law ; the essence of law being more rational , her designs more equitable , her mediums more feasible , and her style more serious and venerable , then to hazard either under the conduct of any notions inconsistent either with equity or possibility ; for the law doth imitate nature ; such fictions therefore as cannot endure the test of law , are fictions indeed , proper only for a comment upon lucians dialogues . to proceed therefore to the law. a fiction in the eye of the law , and such whose practice may be warranted by law , is legis adversus veritatem in re possibili ex justa causa dispositio . a so that it is legis non hominis dispositio ; it must be a fiction framed according to the rules of law , not whatever is imaginable in the conceptions of man. this word [ dispositio ] is sometimes taken for a quality of the mind , or imperfect habit , that is , an inclination or affection . b but in this place it signifies an act proceeding from good authority of law ; for it must be ex justa causa ; which word [ just ] hath divers acceptations or significations in the law ; as sometimes it is opposed to that which is wicked or contrary to justice and equity ; whence it follows , that the suggestor may not frame or model a fiction opposite thereto ; sometimes the word [ just ] is in the law taken for full or perfect ; and hereby all defects and imperfections for want of any legal requisites in the suggestors notions to the fabricating of a fiction , are excluded ; such are the defects or imperfections in respect either of equity or possibility ; for as the suggestions are to arise ex justa causa , so they are to center in re possibili . but to prevent mistakes , let it not be hence inferred , as if it were here implyed , that all surmizes and suggestions at law in order to remove or transplea a cause from one jurisdiction to another , were such fictions as fall not within the compass of the said definition of a legal fiction ; if any such inconsequent construction be made of the premises , or shall be made of what follows , it is no mans errour but the readers ; for though all fictions , whether legal or illegal , may be surmizes , suggestions , or suppositions , yet all surmizes or suggestions are not illegal fictions ; and many of the suggestions used in the practick part of the law for the end aforesaid , are both true , equitable , and possible , and consequently probable , and so of good and necessary use in practice , according to the law in the statute of prohibitions in that behalf provided . and this not by way of digression , but ad majorem & necessariam cautelam , to prevent all mis-apprehensions . the foresaid definition of a fiction legal , not finding general entertainment among the dd , it may be free to incline with the more received opinion to bartols definition thereof ; whose words are c these , viz. fictio , est in re certa , ejus quod est possibile adversus veritatem , pro veritate a jure facta assumptio . a fiction is an assumption of law upon an untruth for a truth , against the truth , in some thing possible to be done , but not done . so that surmizes and suggestions in judicial practice that are true , are not ( as was aforesaid ) fictions . in this definition it is said to be in re certa , to difference it from presumption , which ever fixes upon something that is dubious , d yet carries so much of truth with it , as without better evidence is not counterpoized ; but fictio fit super certo , e super falso & certo fingitur ; super vero & incerto praesumitur . f likewise , in in this definition it is said to be ejus quod est possibile , because super eo quod est impossibile non potest fingi . g of impossibilities there can be no fiction according to law whereon to ground any suggestion . reason it self proves this , for art ( as aforesaid ) ever imitates nature ; and what is impossible according to nature , is impossible according to art ; and though art in some sense may be said to perfect nature , yet it may not contradict nature in any sense . a fiction in law ever imitates a possibility in natur● . h again , it is said to be adversus veritatem , because if it were really true , it would cease to be a fiction , yet withal it is said to be pro veritate , an assumption of law upon an untruth for a truth , because it hath the effect of law , being thus qualified , as fully as if it were an assumption upon a truth . lastly , it is said to be à jure facta assumptio , to exclude all illegal untruths , which are not of law , but of man , and therefore have not the designed effect in operation of law. the premises considered , it is most evident , that on every fiction according to law , attend two such essential requisites , that if either of them be wanting , it ceases to be a legal fiction ; the one is equity , the other is possibility ; these are the duo necessaria to every legal fiction ; and such fictions thus qualified , are introduced by the civil law , wherein among many others there are specially two that may be said to be the capital or more principal fictions in the law ; the one whereof is in lege cornelia ; the other in jure postliminii ; a fiction legis corneliae takes place , when a captive intra praesidia hostium dyes under such captivity ; for if so , then such captive by that law , if he made a will before such his being taken captive , shall in favour of such will , and for the upholding of the same , be feigned to be dead in puncto temporis , immediately before such his being taken captive . i and so by that legal fiction of death his will is firm and valid , as if he had really dyed without ever being taken by the enemy . that de jure postliminii is , whereby for the preservation of a mans right of property , the law doth feign him that is returned out of captivity to be and to have been as if he had never been captive , or at all absent from that place of his freedome and priviledge , whereof he was before such his capture ; k whereby he is redintegrated into his pristine state and condition . as it is thus as to persons , so also is it as to things , such only excepted as by law are exempted from the priviledge of postliminium . there are divers other fictions in the law , though of less weight , which have not any dependance at all on the former , yet not one of them without equity and possibility . thus he that is in contempt for non-appearance in court upon due summons , is by law feigned to be present , that so neither the law might be rendred elusory by his absence , nor himself get any advantage by his own laches , nor the adverse party receive prejudice by the others contempt . l so on the other side , he that is present in court , but doth there lurk and hide himself , vel latitare inter columnas , is by the law feigned to be absent . m also , he that is in utero , and as yet unborn , is by the law quoad suum commodum , feigned to be born , lest otherwise he should be left without remedy as to a childs portion . n likewise , such as enter into mutual contracts of partnership , though themselves may not therein create fictions other then the law allows , yet in matters of society and partnership the lex aquiliana doth feign a mutual stipulation or hypothecation in such consortship , which the law styles stipulatio aquiliana , & in such cases socius socio tenetur lege aquiliana . o and in such cases of partnership for the acquisition of a dominium and property in all the goods in partnership without any actual delivery , the law doth tacitly feign such a delivery , albeit it never specially intervened . p likewise the law feigns the person of one to represent the person of another , that so nephews and nieces may succeed together with their unkles and aunts in their grand-fathers and grandmothers goods and chattels , for so much thereof as should have come to their parents respectively , in case they had been alive at the time of their said grand-parents decease . q in like manner he that is dead , may by law be feigned to be alive to several constructions and operations of law , if others his equals in age be then alive , or in case his being really alive at such time of feigning him to be alive , doth not exceed the natural age of man. r many more instances of legal fictions might here be added , but these may suffice for proof , that though the law allows of fictions , yet never but where there is justa causa with equity and possibility , disowning all others as monstrous fictions , that are propagated meerly of the froth of the brain ; for the law ( as aforesaid ) ever resembles and imitates nature ; and therefore if any man will enter the lists with lucian , or strain his imagination to forge rarities beyond his dialogues , and feign a battel of elephants to be fought on a cobweb in the air , or fresh water-spring to rise out of the whales belly , or a mine of gold fifty fathome under ground in the middle region of the air , or the like , he may expect no protection from the law for such irregular notions . a legal fiction under the foresaid qualifications , is threefold ; either inductiva , or privitiva , or translativa & extensiva . a fiction inductive , is , when the law feigns that to be which indeed is not ; a fiction privitive , is , when the law feigns that not to be which indeed is ; and a fiction translative or extensive , is , when the law doth feign a thing to be done in one manner , which in truth is done in another . the first of these , or the inductive fiction ▪ is an assumption of law in a thing certain and possible , upon a non-existency for an existency ; the second , or the privitive fiction , is alike definable , only the words inverted ; and the third , or translative fiction , is only an assumption of law more upon the modus then the thing it self ; so called , because it is mainly conversant in one of these four varieties ; as either when the law by a fiction transfers or translates some act or thing , either from one place to another , or from one person to another , or from one thing to another , or from one time to another ; but which soever of thes● the fiction be , it must still keep within the due limits and bounds of equity and possibility . whatever the fiction be , it may be reduced to one of these three heads , either inductiva , privitiva , or translativa ; and neither of these but must quadrare with bartols said definition , or the law rejects it as spurious and illegitimate . for the yet clearer apprehension of the premises , it may be no digression to insert a word by way of caution to the imperfect notionist , that he would not hence infer as if the law did feign impossibilities , because it supposes the living to be dead , and the dead to be alive ; the absent to be present , and the present to be absent ; and the like . for although they would indeed be impossibilities , if only considered simply in an identity of fact and time , of person and of place , without their right and due diversifications ; yet they are not impossibilities , being rightly according to the law of fictions distinguished in respect of fact , time , person and place , together with such transactions , translocations , transtemporations , and transpersonalities , as according to rules of law are requisite to every fiction that enures to any effect in law ; for that which may seem deceptio intellectus , and by mis-apprehension possibly be taken for an impossibility in the precedent instances of a legal fiction , is in truth nothing but that defect or absence of verity in the person , act , thing , manner , time or place feigned ; indeed , to look for truth in a fiction , is to expect an impossibility with as much vanity as some men do for revelations : if it were possible that there could be the least verity in the thing supposed , it would immediately cease to be a fiction . legal fictions may be aptly styled , the just policies of law , to attain unto the end and effect of law by remedies extraordinary , only where the ordinary means do fail . this therefore is no warrant to fly to fictions though legal , much less to others , as remedies extraordinary , when the ordinary means by law provided may be used . this point of fictions having now been put to the touchstone of the law , and impartially weighed in the ballance thereof , it plainly appears , what kind of fictions they are , that are legally qualified to take place in the judicial proceedings of the civil law in forraign nations , as also in this kingdome ; which ( before the late unnaturall and intestine wars ) was , and now seems to be for religion , justice and commerce , regina insularum totius orbis . chap. viii . that the cognizance of all causes and actions arising of contracts made , and other things done upon the sea , is inherent in the jurisdiction of the admiralty . this truth in the law is not denyed in the judgements of men , though it hath not wanted at least a seeming contradiction in practice . witness susans case against turner in noys reports ; where it is said , that if a suit be in the court of admiralty for a contract supposed to be made super altum mare , the defendant upon a surmize or suggestion that it was made upon the land within the realm , may have a prohibition . such and the like begat that complaint of the admiralty , which gave the lord coke occasion to assert in these words following , viz. a that by the laws of the realm the court of admiralty hath no cognizance , power , or jurisdiction of any matter of contract , plea , or querele within any county of the realm , either upon land or the water : but every such contract , plea , or querele , and all other things rising within any county , either upon the land or the water , ought to be tryed and determined by the laws of the land , and not before or by the lord admiral or his lieutenant in any manner : so as it is not material , whether the place be upon the water infra fluxum & refluxum aquae , but whether it be upon any water within any county . wherefore we acknowledge that of contracts , pleas , and quereles made upon the sea or any part thereof , which is not within any county ( from whence no tryal can be had thereof by twelve men ) the lord admiral hath and ought to have jurisdiction . this was the answer long since given to an objection made by the admiralty ; but the objection was , that whereas the cognizance of all contracts and other thiags done upon the sea , belongeth only to the juisdiction of the admiralty , the same are made tryable at the common law , by supposing the same to have been done in cheapside , and such like places . so that the sinew of the objection is , that things done upon the sea , being cognizable only in the admiralty , are made tryable elsewhere by supposing them to be done in cheapside , and such like plaees . the said answer speaking nothing as to the said manner of supposing , seems not to enervate the said objection ; the answer distinctly declares and sets forth where and in what places the jurisdiction of the admiralty hath not cognizance , viz. not upon land or water within any county ; but why ( according to the said objection ) things done upon the sea , and belonging only to the admiralty , are made tryable at common law , by supposing them to be done in cheapside , and such like places , seems yet to be resolved ; statutum simpliciter loquens , debet intelligi de his quae vera sunt secundum veritatem , non de his quae sunt secundum fictionem . b the scruple touching the surmize implyed in the supposition mentioned in the said objection , doth arise from the fact so supposed , as whether solid enough to lay foundation for such superstructures as are built thereon . it is acknowledged , that of contracts made and other things done upon the sea , or any part thereof , which is not within any county , the lord admiral hath and ought to have jurisdiction ; but if this super altum mare should by a meer surmize or suggestion be translocated in operation of law , and so thereby become as it were infra corpus comitatus , the said acknowledgement would seem to be disacknowledged , and the said objection would seem to be an objection still . veritatis congressus invictae est major veritas . and he that sues an admiral cause in another court , ought to withdraw it , and to fine to the king. c brownlow reports , d that if a bond bear date super altum mare , it must be sued only in the admiral court. whether then an obligation or other contract made on board one of the frigots of the navy royall , or the like , in the straights , may be tryed in other then the admiral court , by alledging or supposing the same to have been made in the straights in islington in the county of middlesex , seems to be the question ; for the very truth of the fact as to the place of making such obligation in the straights , or super altū mare , seems not to alter the case , if the place so suggested is not to be traverfed , it being as easie and as feasible to suppose and suggest the said frigot and the straights , as burdeaux in france to be in islington . but the great oracle of the law assures us , e that things done out of the realm may not be tryed within the realm by the oath of twelve men . it is reported in palmers case against pope , f that jennings libelled in the admiralty against one audley , upon a contract laid to be made apud malaga infra districtum maris vocat . the straights of gibralter infra jurisdictionem maritimam ; and because it appeared , that the contract was made at the island of malaga , prohibition was granted , for it was not regarded , that he added infra jurisdictionem maritimam , which appeared contrary . if in another case it happen to be elsewhere supposed that the contract is made at burdeaux in france in islington , though by the very light of nature it appears , as soon as it is put , to be contrary , yet there may be that reason of law to hold the place is not traversable as to the infra corpus comitatus , which the infra jurisdictionem maritimam cannot duly expect , when that appears to be contrary . it was once said by justice wray in sir julius caesars case , g that it was hard that his jurisdiction should be tryed before himself . it hath been observed for these last twenty years , that it is far more easie to preach good doctrine then to practise it . the law in all jurisdictions is but reason regulated ; no wonder therefore if sometimes a cause as to the merits of it meet with a right decision in a wrong jurisdiction ; but less wonder if it oftner happeneth otherwise . it is reported in the case of bright against couper , h that an action of covenant being brought upon a covenant made by a merchant with a master of a ship , viz. that if he would bring his fraight to such a port , then he would pay him such a summe ; it was shewed that part of the goods were taken away by pyrats , and that the residue of the goods were brought to the place appointed , and there unladen ; and that the merchant had not paid , and so the covenant broken : and the question was , whether the merchant should pay the mony agreed for , since all the merchandizes were not brought to the place appointed : and the court was of opinion , that he ought not to pay the mony , because the agreement was not by him performed . here is no mention made of a penny-fraight paid for the residue of the goods brought to the place appointed , albeit there was vis major , or casus fortuitus , without any default in the master or mariners , in the case ; the court being of opinion that he ought not to pay the mony , because the agreement was not by him performed ; nor had it been performed in case of stress of weather , part of the goods had navis levandae causa , been thrown over-board ; probably this pyracy , whereby came this casual incapacity of performing the agreement , was super altum mare . and the same reporter in westons case , i a merchant hath a ship taken by a spaniard , being enemy , and a moneth after an english merchant with a ship called the little richard , re-takes it from the spaniard ; and the owner of the ship sueth for that in the admiralty court. and prohibition was granted , because the ship was gained by battel of an enemy . probably this capture and re-capture , the occasion of this plea and querele , was only super altum mare ; and the property of shipping called into question by reason of such supermarine accidents , the matter of this plea and querele , is of every days practice in the admiralty , and so accustomed time out of mind . but at another time in a case something parallel to that quoad merita causae super altum mare , a prohibition would not be granted , k a dunkirker having seised a french mans vessel super altum mare , sold the same with her lading at we●mouth , whither it had been driven before its brought infra praesidia dom. regis hispan . whereupon the french man libelled in the court of admiralty against the vendee pro interesse suo , who shewed that it was taken not by letters of mart , as was pretended , but by piracy ; and prayed a prohibition . and it was agreed by the justices , that if a ship be taken by piracy , or by letters of mart , and be not brought infra praesidia , of that prince by whose subject it was taken , that it is no lawful prize , and the property is not altered : and such was said to be the law of the court of admiralty . and therefore the court would not grant a prohibition . in the former case where prohibition was granted , the property of the ship seems not to be altered , for though she were , as that case puts it , taken by an enemy , and a moneth intervened between the capture and re-capture , and so did pernoctare with the captors , yet it does not appear by that case that she was ever brought infra praesidia hostium before such re-capture , or that ever judication passed thereon ; and if there were any alteration of property of that ship , the property must have been altered super altum mare , which is properly cognizable in the admiralty in respect of the place as well as the thing it self in its own nature . littleton , that famous oracle of the law , as aforesaid , asserts , l that a thing done out of the realm may not be tryed within the realm by the oath of twelve men . the lord coke ( as aforesaid ) acknowledgeth , m that the lord admiral hath and ought to have jurisdiction of contracts , pleas and quereles made upon the sea , or any part thereof not within any county . and sir george crook says , n that if a suit be commenced in the court of admiralty upon things done upon the sea , no prohibition is to be granted . therefore it follows , that contracts made and other things done upon the sea are inherent in the jurisdiction of the admiralty . chap. ix . of contracts and bargains made , and other things done beyond the seas . and whether the cognizance thereof doth belong to the admiralty . if the jurisdiction of the admiralty in this point should seem to be pretermitted or waved , by saying that bargains and contracts made beyond the seas ( wherein the common law cannot administer juflice ) do belong to the lord high constable and earl marshal of england , it might seem tacitely to imply , as if charter-parties , bills of lading , cockets , invoyces , commissions of mart , marine consortships , and other contracts or things made or done beyond sea touching trade and navigation , were not within the conusance of the jurisdiction of the high admiralty of england . whereas it is well known , that they are only contracts and deeds of arms , and of war , and the like , out of the realm , that do properly belong to the lord high constable and earl marshal of england , and the like within the realm ; whose jurisdiction is of a distinct and diversified nature , both from that of the common law and of the admiralty also . it is said , o that if an indenture , bond , or other specialty , or any contract be made beyond sea , for the doing of any act or payment of mony within the realm , or otherwise , wherein the common law can administer justice , and give ordinary remedy ; in these cases neither the constable and marshal , nor the court of admiralty hath any jurisdiction . so that the admiralty seems hereby to be of little use as to contracts though vltra-marine . but the lord hobard in bridgmans case goes farther , and says , p that it hath been often resolved , that if any obligation were made at sea , yet it could not be sued in the admiralty court , because it is an obligation which takes his course , and binds according te the common law. so that it hence follows , that if it be made beyond sea , wherein the common law can administer justice , the court of admiralty hath not any jurisdiction ; and if it be made at sea , it cannot be sued in the admiralty court , because it takes its course , and binds according to the common law. thus betwixt land and water , between contracts made beyond sea , and obligations made at sea , the admiralty seems like a kind of derelict . but probably it is not hereby meant or intended that every contract made beyond sea shall be tryed at the common law , but only such as are there made for doing some act within the realm , or otherwise , wherein the common law can administer justice , and give ordinary remedy ; nor every thing done at sea , but only obligations , which have their course , and bind according to the common law , and also when these things done at sea , be not ( as bridgmans case farther puts it ) of the same nature and respect , that is , ( as the said case explains it ) an obligation made at sea for security of a debt growing before at land , cannot be sued in the court of admiralty , because it is not for a marine cause . no man , 't is presumed , doth question but there may be debts growing at land for marine causes , as in respect of shipping , navigation , and the like ; otherwise a skipper signing bills of lading at land , might pretend such bills of lading so signed by him did not oblige him to a delivery of the goods therein expressed according to the consignation thereof . a marine contract may be made , and a nautical debt contracted as well by land as by sea , for security whereof obligation may be afterwards made at or beyond the sea , and be within the cognizance of the jurisdiction of the admiralty ; which would not signifie much in this or any nation , if it could not administer justice in any cases save only such as have their birth , life and death , their foundation , negotiation , and consummation precisely super altum mare ; specially where a surmize or suggestion may be material quoad examen , though the case oft times happens to prove otherwise , quoad merita . sir george croke in the foresaid resolutions upon the cases of admiral jurisdiction , q seems to be of another opinion , where it is said , that if a suit be commenced in the court of admiralty upon contracts made or other things done beyond the seas , or upon the seas , no prohibition to be granted or awarded . there respect seems to be had more to the place where the contract is made , then whether it be for a marine cause ; there are some things that wherever they be made or done ( whether this side the sea , upon the sea , or beyond the sea ) may be properly cognizable in the admiralty ; such are charter-parties , bills of lading , and the like ; there are other things wherein the jurisdiction of the admiralty is limited as to the locallity upon or beyond the sea ; personal actions may sometimes be or not be of admiral cognizance , according as they are here or there local , at other times they are regulated quoad subjectam materiam , about which they are conversant ; for as there are some certain places that sui natura are subject to the jurisdiction of the admiralty , so there are some certain things that are likewise sui natura , subject to the same jurisdiction ; and as a maritime place may without respect to the sub●ect matter entitle that jurisdiction to a cognoslibility of a case ; so sometimes the subject matter as the said charter-parties , bills of lading , and such like , may without such absolute respect had to the place , have the same operation ; were it otherwise , it might be something difficult to find a case simply and absolutely of an admiral cognizance ; for contracts though made even upon or beyond the seas , are generally to take effect at land ; and that which is purely marine in the cause , may be terrene in the effect ; bills of lading , that are so properly inherent in the admiralty , take effect at land , though made and firm'd a ship-board for the most part , upon or beyond the seas ; likewise contracts for fraight and mariners wages , take effect at land ; yet for the most part are made a ship-board upon or beyond the seas . these obligations ( for they are obligations ) though they are for doing some act within the realm , as in bills of lading for the safe delivery a shore ( the dangers of the sea excepted ) of such goods to the consignatory as are therein mentioned ; and in contracts of fraight and mariners wages for the due payment of mony on the land , yet are all within the jurisdiction of the admiralty . when a contract is really made super altum mare vel ultra quatuor maria , specially in matters sui natura maritime , though in order to something afterwards to be done or performed in whole or in part upon the land ; this seems by the ancient customes , style and practice of the admiralty to be within the jurisdiction thereof ; yea , properly and exclusively , unless you hold the doctrine of universal concurrency . and herein the admiralty may safely appeal to the words of that great oracle of the law , whereof mention hath been made in the precedent chapter , r viz. que chose fait hors del royalme n' aient poet estre trie diens le royalme per le serement de . a thing done out of the realm may not be tryed within the realm by the oath of twelve men . this is the judgement of him whom the lord coke styles not only by the name of a lawyer , but of the law it self . no surmize or suggestion can cause that to be , which in sui natura is not , nor cause that legally to seem to be , which in rerum natura is not capable of being . the question is not whether an alien born out of the dominions of the realm of england may as a demandant bring his real action ; nor is it imagined by any , that because he is an alien , that therefore his case may not come to tryal for want of a suggestion ; to feign a native of france to be born in such a certain place in england , doth not reach the case in hand ; for though it be impossible for one and the same individual person to be born in both places , yet it is not impossible but that he who is surmized or suggested to be born in one place , might in truth be born in another ; nor contrary to the rules of law to surmize a translocation of a mans nativity , which admits a possibility in any place within the habitable parts of the whole universe ; therefore such a surmize or suggestion may be regularly consiste●t with the law of fictions , and consequently practicable for the foundation of process , action , or judicial proceedings ; but it may be otherwise of certain things , which if you assay by a surmize to remove from their proper element , you may seem as it were to annihilate the thing it self . or endeavouring a representation of such non-entities by a meer conception of words , you may seem as it were to attempt incapabilities , which the law understands not , or no other then the ebolitions of fancy ; for ex nihilo nihil fit . nor is it controverted whether a delinquent for adherency with the kings enemies beyond sea , shall be tryed in england ; no question but such adherency without the kingdome ( to accommodate the matter for tryal somewhere , and to prevent a total failure of justice ) may according to law be alledged to have been made in some place within the kingdome ; because a fact of that kind is within the notion of nature and reason capable of a being in either ; but it does not thence follow , that the collision of one ship against another by the violence of wind and tide , being and capable of happening where terra firma is not , may according to rules of law be supposed to have happened in the ward of cheap , when possibly or in truth the said casualty did happen super altum mare , it may be sixty leagues west-ward of the cassiterides , or isles of scilly ; and this not so much to accommodate the matter for a tryal at law somewhere for prevention of a total failure of justice , as in the former cases ; as to remove a tryal , already in being , from one jurisdiction to another , & lite pendente ad aliud examen . there is a double difference and of wide dimensions between the said instances and the true state of the case in hand . first , that way of arguing holds well and rationally to create a tryal in case of necessity , where otherwise justice might totally fail for want of a competent tribunal in order thereto ; and here there is no opponent , for the objection is of another nature , as when surmizes and suggestions are used as a remedy extraordinary , where the ordinary means fail not , and that not so much to beget a tryal which otherwise could have no being , as to remove a tryal actually in being . secondly , there is a vast difference in law between persons and things , in reference to legal fictions , as to their operation in judicial proceedings ; for persons in one place will without offence to the law admit of fictions to suppose them in any place ; but things and actions are ever to be accommodated as unto a possibility in nature , so to rationality and equity in act ; insomuch that if by any manner of supposing they happen to be strain'd beyond either of these , all the superstructure may fall for want of sufficient foundation . though it be very true what spiegelius once said , fingi lites poterunt , ut transactio fiat citra praetoris authoritatem , yet most apt and true also is that of ulpian , s fictio privata & illicita nihil distat à fraudulent a simulatione ; the reason in law is , because as all legal fictions must ever imitate nature it self in re possibili , though it be adversus veritatem : so it must also be legis ex justa causa dispositio . it is said , t that an obligation made beyond the seas , may be sued in what place in england the plaintiff please ; insomuch that notwithstanding it bear date at burdeaux in france , yet it may be alledged to be made in quodam loco vocat ' burdeaux in france in islington in the county of middlesex , and there it shall be tryed ; for , ( as it is there farther added ) in that case it is not traversable whether there be such a place in islington or no. but yet the renowned littleton says plainly , as is before observed , that a thing done out of the realm may not be tryed within the realm by the oath of twelve men . u if an obligation made beyond the seas , may be sued here in england , in whatsoever place the plaintiff please , admitting the intraversability of the place , it follows , that a thing done at burdeaux in france may be tryed in middlesex in england , and that which was done in the east-indies may be tryed in the ward of cheap . if it be admitted that the words of the incomparable littleton , viz. [ out of the realm ] and the words of the lord coke , viz. [ beyond the seas ] do according to the intendment here agree in parity of sense , though in other cases very distinguishable , then it would seem as if there were some need of a person dexterous at gordian knots in this point , that may not alexander-like cut instead of untying the same ; who withal must remember what the lord coke himself there says in the close of that burdeaux case in islington , viz. that these points are necessary to be known in respect of the variety of opinions in our books ; whereby it is evident , that there is not that universal unanimity of consent in this point , as to render it indubitable ; so that although a surmize or suggestion should translocate burdeaux into islington , yet 't is not to be gain-said but that the great oracle of the law asserts , that things done without the realm cannot be tryed within the realm by the oath of twelve men . where the locality is meerly circumstantial to the fact , and not withal essential to a jurisdiction , in that case the intraversability of the place need not be so considerable , as when a right of cognizance admits dispute by reason of such locality , or the claim of another jurisdiction not inadmissable , specially of such a jurisdiction as mainly calculates her cognizance according to the meridian of that place , where the thing or ground of action received its origination , and where the very locality becomes as it were one essential to the jurisdiction it self , and where by such an intraversability of the place , though only surmized , it becomes not impossible but that a competent jurisdiction may happen to be quoad hoc excluded . the jurisdiction of the admiralty having ever been of the complaining hand touching the inconveniencies through uncertainty of jurisdiction as to the cognizance and tryal of causes maritime , may aptly say with the lord coke , w misera est servitus ubi jus est vagū aut incognitum . it hath been said , x that if an indenture , bond , or other specialty , or any contract be made beyond the sea , for the doing of any act or payment of any mony within the realm , that in such cases the court of admiralty hath not any jurisdiction ; and that therefore prohibitions have been granted , as by law they ought , when the court of admiralty hath dealt therewith in derogation of the common law. if instances of awarding prohibitions should amount to a general rule without exception , the admiralty would seem to have made in former times many frivolous complaints ; it is presumed all men will not deny , but that it is possible for a transmarine contract to be a maritime contract ; if so , then possibly the admiralty may seem to deal therewith not in derogation to the common law , specially if things done without the realm may not be tryed within the realm by the oath of twelve men . that no maritime contract shall be tryed elsewhere then in the court of admiralty , appears plainly by the sea-laws , by the customes of the admiralty , and by the act made at hastings by king edward the first . y for maritime contracts may be made as well beyond the seas , as at sea ; and the performance of something ex post facto within the realm , in pursuance of a precedent contract made beyond sea , not altering the maritime quality of the original fact , doth not seem to make it cease being maritime , nor render that incapable of continuing maritime , which was of a maritime nativity . justice croke in the resolution upon the cases of admiral jurisdiction , subscribed febr. . by all the reverend judges of both the honourable benches , reports , z that if there be a suit commenced in the admiralty for fraight or mariners wages , or for breach of charter-parties , though the charter-party happen to be made within the realm , so as the penalty be not demanded , a prohibition is not to be granted . much less then , if the charter-party happen to be made without the realm . such charter-parties , as also bills of lading , and the like , are contracts frequently made beyond sea for the delivery of goods to whom they are consigned within the realm ; if the admiral cognizance of such transmarine contracts be in derogation of the common law , then it should seem as if things done out of the realm might be tryable within the realm by the oath of twelve men ; in variation from the precedent assertion of the renowned littleton . the concessions of the said reverend judges in anno . seem not so much by way of enlargement as in affirmance of the admiral jurisdiction , for prevention of future uncertainties in point of jurisdictions . in the case of don diego serviento de acuna , ambassador lieger for the king of spain , against jolliff and tucker , a it was said , that when the case is laid at land , no man may by a new-found form of suit draw it ad aliud examen , but he must submit his forms to the law , and not è contra. if this be the law , which no man questions , as being visibly founded upon good reason , it follows , that when the case is laid at sea , no man should by a new-found form of suit draw it ad aliud examen ; for surmizes and suggestions or suppositions will admit of any forms , and assume what shape you please , so may not suits and actions ; this would seem rather to prostitute the law to forms , then to submit the forms to the law. remarkable is the case of palmer against pope . b the case was this ; pope agreed with palmer super altum mare , to transport him certain sugars ; this agreement was afterwards put in writing in the port of gado on the coast of barbary ; the sugars happened to be spoyled at sea by salt water ; for which palmer sues pope in the admiralty ; for that the original contract and the breach also were both super altum mare ; yet upon a suggestion that the charter-party was made in the port of gado , upon the continent of barbary ; it was resolved , that a prohibition lay , because the original contract , though it were made at sea , yet was changed when it was put into writing sealed , which being at land changed the jurisdiction as to that point . this was the case , and this the resolution thereupon . it is here said , that the original contract and the breach thereof were both super altum mare . but it is said withal , that upon a suggestion of the charter-parties being made in the port of gado , upon the continent of barbary , the contract originally made at sea was changed by being afterwards put into writing sealed at land , whereby the jurisdiction was also changed . it doth not appear that there was any variation , as to the substance of the agreement , in the writing sealed ( as supposed ) at land , from the contract originally made at sea ; nor any alteration , as to circumstance , other then that of locality where the writing was sealed , containing that contract or agreement which was bonae sidei contractus , and therefore good and valid among merchants without any writing at all , whether sealed or not . the charter-party is suggested to be made in the port of gado , upon the continent of barbary ; in a port upon a continent ; by a continent is meant terra firma ; and a port or portus , est locus conclusus quo importantur & exportantur merces . c a vessel designed for the port of london is intended for the river of thames ; a port is navigable , a port-town is upon the continent ; a charter-party made in london , is made upon the continent of england ; a charter-party made in the port of london , is made upon the river of thames ; the said original contract was upon the sea ; the breach thereof was also upon the sea ; the concurrence of which two makes the cause of the suit entire , as in the said case more at large ; and the suggestion it self lays the charter-party to be made in the port , which nature hath adapted for importation and exportation . it was in that case agreed , that if it had been a writing only without seal , it had wrought no change of the contract , and consequently no change of the jurisdiction . put the case , the like contract or agreement had originally been made at land , afterwards put into writing sealed at sea ; the question is , whether the contract be changed , and with that change another change in consequence thereof . seals may be essential to deeds , being but as embrio's till thereby animated , and as abortive till by the obstetricy of witnesses well delivered ; but bargains , contracts , and agreements among merchants and mariners , proceeding only secundum aequum & bonum , and being contracts bonae fidei , do oblige ultro citroque without any seal to the same ; and such made at sea though but parole , are with merchants and mariners as valid , as if in writing sealed at land ; and this is consonant to that law which is most conversant in such affairs . a seal ( as aforesaid ) may be essential to a deed , or the like instrument , so is the place of making a contract or agreement essential suo genere , to the admiral in point of cognizance ; which in effect is not denyed in the report of that case between palmer and pope , where it is said , that the jurisdiction of the admiralty groweth not from the cause ( as of tithes and testaments in the spiritual courts ) but from the place ; yet this may not be understood exclusively to such things as are properly maritime , and consequently within the cognizance and jurisdiction of the admiralty , such as reprizals , derelicts , matters touching navigation , charter-parties , bills of lading , mariners wages , and the like , whereof you have a summary enumeration in the fourth chapter of this treatise , to which the reader is referred . a surmize or suggestion in certain cases is doubtless a very legal expedient ; yet possibly some men will no more agree with others of their fellow-rationals in suggesting a contract to be made in the port of new-haven upon the continent of france , then if they surmiz'd it to be made in the bay of biscay , upon the continent of spain . to this purpo●e very memorable is that fore-mentioned case of susans against turner , d where it is said , that if a suit be commenced in the court of admiralty for a contract supposed to be made super altum mare , the defendant upon a surmize or suggestion that it was made upon the land , within the realm , may have a prohibition . the fact is re vera super altum mare ; notwithstanding which , the jurisdiction of the high admiralty of england seems , as that case puts it , to be in point of cognizance subordinated to a bare surmize or suggestion , though in re minus vera . in matters of an inferiour alloy it is no superlative argument to infer , a thing ought to be so , because it hath been so , much less in point of jurisdiction . though it be a common rule in law , that ex facto jus oritur , yet this is ever to be understood non de facto supposito , sed vero . it is yet too fresh in memory to escape observation , how of late unhappy years prohibition have been prayed , even by such as in the self-same case had before admitted the jurisdiction of the admiralty , by pleading there ; yea , when by the libel it could not appear that the contract , whereon the action was grounded , was made out of that jurisdiction ; insomuch as it became most mens policy that suspected the success of their cause in one jurisdiction , to endevour by the art of surmizing the removal thereof to another ; and this though the case in it self never so clear of admiral cognizance , and after themseves had submitted to the jurisdiction . this had but a slender affinity with what is reported in the case between jennings and audley , e where prohibition was prayed to the admiral , and the libel shewed to the court , which contained the contract was made in the straights of malago , within the jurisdiction of the admiralty , and doth not say , upon the deep sea. and it was agreed , that in all cases where the defendant admits the jurisdiction af the admiral court , by pleading there , prohibition shall not be granted , if it do not appear by the libel that the act was done out of their jurisdiction . the like we find in the case of baxter against hopes . f in which it is said , that if the defendant admits the jurisdiction of the court , then the court will not upon a bare surmize grant a prohibition , after the admittance of the party himself , if it be not in a thing which appeareth within the libel , that is , that the act was not made within the jurisdiction of the sea ; and to this difference all the court agreed . so that for the same party in the same cause to surmize and move for a prohibition against that jurisdiction , to which himself had formerly submitted , and in a cause which by the libel appears not other then maritime , seems quite beside the rule and practice of law. to conclude this point of forraign contracts made , and other things done beyond the seas , the merchants case , mich. jac. in the kings bench , g may not be omitted . it is therein thus reported , viz. henry yelverton moved the court for a prohibition to the admiralty court : and the case was , there was a bargain made between two merchants in france , and for non-performance of this bargain , one libelled against the other in the admiralty court. and upon the libel it appeared , that the bargain was made in marcelleis in france , and so not upon the deep sea , and by consequence the court of admiralty had nothing to do with it ; and flemming chief justice would not grant a prohibition ; for though the court of admiralty hath nothing to do with this matter , yet insomuch as this court cannot hold plea of that ( the contract being made in france ) no prohibition ; but yelverton and williams , justices , to the contrary ; for the bargain may be supposed to be made at marcelleis in kent , or norfolk , or other county within england , and so tryable before us ; and it was said , that there were many presidents to that purpose , and day given to search for them . this was the case , wherein it appears the bargain was made beyond the seas , and between merchants , yet said the admiralty hath nothing to do therewith , because not upon the deep sea ; nor that court hold plea thereof , because made in france , therefore according to flemming , chief justice , no prohibition ; but yelverton and williams , justices , to the contrary , the contract being supposable to be made at marcelleis in kent or norfolk ; therefore a search for presidents of contracts , though really made beyond sea , yet supposed to be made in some forraign parts beyond sea in england , as marcelleis in kent or norfolk , or the like . this could not be so much out of any necessitous ground to accommodate the matter to a tryal somewhere for prevention of a total failure of justice , as in order to a removal thereof from the court of admiralty , where it actually depended . it is now nigh thirty years since in the royal presence it was unanimously resolved and subscribed by all the reverend judges of both the honourable benches , viz. febr. . upon the cases of the admiralty-jurisdiction , h that if a suit be commenced in the court of admiralty upon contracts , or other things done beyond the seas , no prohibition is to be awarded . chap. x. of judicial recognizances and stipulations for appearance , and performance of the acts , orders , judgments , and decrees of the court of admiralty ; as also whether the said high court of admiralty of england be a court of record . although the court of admiralty time out of mind hath ever used to take such recognizances and stipulations for judicial appearances , and due performance of such acts , orders , and judgments , as are made and given in the said court ; yet this ancient practice of the admiralty , though so adequate to the genuine rights of judicatories and tribunals of justice , quatenus , such , hath not escaped a contradiction founded upon this assertion , that the court of admiralty is no court of record . such as hold prohibitions may be granted to the court of admiralty upon the ground or reason aforesaid , seem to model the argument syllogistically , and say , that for the taking of recognizances against the laws of this realm , prohibitions have been and ought to be granted : but the court of admiralty doth take recognizances against the laws of this realm , ergo , &c. the minor proposition is said to be proved thus , viz. no court being not a court of record , can take such recognizances : but the court of admiralty is no court of record ; ergo , &c. that unhappy minor is said to be a truth , how fatal soever , built upon this double foundation : first , because the court of admiralty proceeds by the civil law. secondly , because if an erroneous sentence be given in that court , no writ of errour , but an appeal doth lye , according to the statute of eliz. cap. . reason is , or should be the source or fountain of all humane laws , no waters rise higher then their springs ; the first enquiry therefore will be , what a court of record is , or what court may properly be said to be a court of record ; which being known and considered , if you be not then satisfied , you may , if you please , farther enquire , whether the being of record be such an essential qualification to a court , as without which it is incapable of taking such stipulations ( i say , such stipulations ) as the court of admiralty hath ever used to take , and de jure ought to take . the lord coke makes this description of a court of record , i every court of record is the kings court , albeit another may have the profit ; wherein if the judges do erre , a writ of errour doth lye . but the county-court , the hundred-court , the court-baron , and such like , are no courts of record ; and therefore upon their judgments a writ of errour lyeth not , but a writ of false judgment , for that they are no courts of record , because they cannot hold plea of debt or trespass if the debt or damage do amount to forty shillings , or of any trespass vi & armis . it is observable that it is here said , that every court of record is the kings court ; so is the high court of admiralty styled the kings court , as appears not only by the title or preliminary description , but also by the second article or proposition in the resolutions upon the cases of admiral jurisdiction , k subscribed in anno . by the reverend judges in presence of his late majesty of ever blessed memory , and the lords of his majesties most honourable privy councel . and whereas in the said description of a court of record , it is said , they are no courts of record , because they cannot hold plea of debt or trespass , if the debt or damage do amount to forty shillings , or of any trespass vi & armis , it is well known that the court of admiralty can hold plea of a debt or trespass maritime if the debt or damage do amount to as many thousands of pounds as there are pence in forty shillings , and not only of trespass vi & armis , but also of maihem , yea , of death it self . l wherefore , as the former character of a courts being of record , may be applyed to the high court of admiralty as the kings court : so the other character of a courts not being of record , is no way applicable to the said court of admiralty . but in the said description of a court of record , it is said , that every court of record is the kings court , wherein , if the judges do erre , a writ of errour doth lye ; the question then is , whether it be a question whether a writ of errour doth lye in the consistory court of the university of cambridge , which queen elizabeth by her charter dated april , anno reg. made a court of record . m and writs of errour did also properly lye in any court where they have power to hold plea by the kings charter , or by prescription in any summe , either in debt or trespass above the summe of forty shillings . n in which sense the court of admiralty as aforesaid , is sufficiently qualified as a court of record ; which though eminent enough for its practice and interest in the realm , and so not probable to have escaped a particularization among the other fore-mentioned courts , the county-court , hundred-court , and court-baron , as no courts of record , by reason of any oblivion , yet is not there instanced among those other courts not of record . and the county is called a court of record . westm . . cap. . anno ed. . but it seems by britton , cap. . that it is only in these causes , whereof the sheriff holdeth plea by special writ , and not those that are holden of course or custome . o and whereas brook seemeth to say , that no court ecclesiastical is of record ; p yet bishops certifying bastardy , bigamy , excommunication , the vacancy or plenarty of a church , a marriage , a divorce , a spiritual intrusion , and the like , are credited without farther enquiry or controlment . q this only by the way , and in transitu . if it be said , the court of admiralty is no court of record , because it proceeds by the civil law , it may be demanded by what law the consistory-court of cambridge proceeds , which q. elizabeth ( as aforesaid ) made by her charter a court of record ; for the king may make a court of record by his grant ; r which seems to allay that antipathy that is supposed between a court of record and a court proceeding by the civil law , a law allowed , received , and owned as the law of the admiralty of england . yet serjeant harris in the case of record against jobson , argued , that a recognizance taken in the court of admiralty to stand to the order of the court , is void , and that it hath been so adjudged . s so it 's argued ; it is not said , resolved . it is a happiness as well as a truth , what was once said in dr. james his case , t that the king is the indifferent arbitratour in all jurisdictions , and of all controversies touching the same , and that it is a right of his crown to distribute to them , that is , to declare their bounds . it is no novel doctrine to assert , that stipulations taken in the high court of admiralty for appearance , or performance of its own acts , orders and decrees , are in modo procedendi quasi accessorium quoad principale ; and the modern reporter in a case depending before the commissioners of ensurance between oyles and marshal , u says , that it being moved in the kings bench for a prohibition , and a rule there given to shew cause why a prohibition should not be granted to the court of ensurance ; it was then declared , that if they had jurisdiction of the principal matter , they had jurisdiction of matters also incident thereto . and what are recognizances taken in the court of admiralty , for appearance , and performance of its own acts and decrees , more then stipulations judicio sisti & judicatum solvi ? insomuch as to deny the right or power of taking such stipulations , seems in effect as to imply an inhibition of the whole jurisdiction ; for without such stipulations in praeparatorio litis , the subsequent judgement , be it for plaintiff or defendant , would prove but vain and elusory ; and a judgement without due and effectual execution is quasi sententia inanimata ; without such stipulations justice may be perverted into injustice , for default of that which is the complement , or ultimate design of all justice , viz. facultas suum cuique tribuendi . the practice of taking such stipulations for the legality thereof according to that law whereby that court proceeds , is nothing inferiour in point of antiquity to the jurisdiction it self , the style of that court in that point of practice being as ancient as the court it self ; and whereas the right of taking such stipulations for appearance , and performance of the acts , orders , judgements and decrees of the court of admiralty hath not been without contradiction upon the foresaid ground ; that the said court is no court of record , it doth plainly appear by a record of good antiquity , and with the learned mr. selden of good authority , that the said court is a court of record . w and if the court of admiralty be discharactered as no court of record , by reason of its proceeding by the civil law , it would thence seem to be implyed as if no part of the civil law were any part of the law of england ; it is not concealed from the world by a person of no less honour then knowledge in the laws of this realm , that the imperial or roman law is in some cases the law of the land. x this worthy authour speaking of the right of prerogative in absolute kings and princes , as to impositions upon merchandizes , doth upon that occasion in the fore-cited place declare himself in haec verba . forasmuch as the general law of nations , which is and ought to be law in all kingdomes , and the law-merchant is also a branch os that law , and likewise the imperial and roman law have been ever admitted , had , received by the kings and people of england , in causes concerning merchants and merchandizes , and so are become the laws of the land in these cases ; why should not this question of impositions be examined and decided by the rules of those laws so far forth as the same doth concern merchants and merchandizes , as well as by the rules of our customary or common law of england , especially because the rules of those other laws are well known to the other nations , with whom we have commerce , whereas the rules of our own municipal laws are only known within our islands . what this worthy authour here speaks of the civil law in england , as to this point of impositions by the king on merchandizes , is applicable in any case of navigation , naval negotiation , or other affairs properly relating to merchants or mariners within the sphere of the admiralty of england . and the same learned authour in another place , y when the city of rome was gentium domina & civitas illa magna quae regnabat super reges terrae , the roman civil law being communicated unto all the subjects of that empire , became the common law , as it were , of the greatest part of the inhabited world , &c. and again in the same place , all marine and sea-causes which do arise for the most part concerning merchants and merchandizes crossing the seas , our kings have ever used the roman civil law for the deciding and determining thereof . thus far goes the said worthy authour in this point . it is most true , the civil law in england is not the law of the land , but the law of the sea ; great brittain , and the dominions thereof comprizing the adjacent seas , as well as the land ; the law by which the high admiralty of england proceeds , being in all causes cognizable in that jurisdiction allowed , owned and received by prince and people , soveraign and subject , seems to be a law of england , though not the law of england , not the land-law , but the sea-law of england ; for as in matters terrene and in land-affairs it is proper to say infra corpus comitatus , so in matters maritime and sea-affairs it is no less proper to say sur le hout mere . the jurisdiction of the admiralty of england is one of the jurisdictions of england , which ever implyes a law to proceed by that cannot be but of that place whereof the jurisdiction it self is . it neither may , nor ought to be denyed , but that for the taking recognizances against the laws of the realm , prohibitions have been granted ; yet possibly it may not thence by a necessary concludency follow that the high court of admiralty ( in taking stipulations for judicial appearance , or performance of the acts and orders of the court , vel judicio sisti vel judicatum solvi , and this according to that law whereby it is to proceed ) is involved under such a guilt of transgression against the laws of the realm , as eo nomine to incur a prohibition ; which if grantable upon every such recognizance or stipulation for appearance , and performance of the acts and judgements of the court ( without which it cannot proceed according to law ) there could then be no suit or action depending in the high admiralty of england , be it for place , nature , or quality in it self , never so maritime and of undoubted admiral cognizance , but must be subject and lyable to a prohibition , and consequently to a removal from its proper jurisdiction ad aliud examen , to the great grievance of merchants and mariners , and others the good people of these his majesties dominions , by reason of the multiplicity of suits , protelation of justice , excess of judicial expences , together with the uncertainty of jurisdictions , and all as the unavoydable consequences of such prohibitions . chap. xi . of charter parties made on the land , and other things done beneath the first bridge next to the sea ; vel infra fluxum & refluxum maris ; and how far these may be said to be cognizable in the admiralty . touching this subject it hath been asserted , that if a charter-party be made within any city , port-town , or county of this realm , although it be to be performed upon or beyond the seas , yet is the same to be tryed and determined in the ordinary course of the common law , and not in the court of admiralty . a this is exclusive as to the admiralty in matters of charter-parties made upon the land ; but yet it is agreed and resolved , hill. . car. upon the cases of admiral jurisdiction , that though the charter-party happen to be made within the realm , so as the penalty be not demanded ; a prohibition is not to be granted . b were it otherwise , or that the jurisdiction of the admiralty might not take cognizance of such maritime contracts though made on land , then by thereunto adding what was formerly observed out of the same place , c viz. that the court of admiralty hath not any jurisdiction of any contracts made beyond sea for doing of any act within this realm , or otherwise , wherein the common law can administer justice ; it would follow , that if ( according to the one of these assertions ) such maritime contracts when made upon the land , though to be performed upon or be●ond the seas , may not be tryed or determined in the court of admiralty ; and when ( according to the other of these assertions ) made beyond the sea for doing of any act within this realm , &c. the court of admiralty hath not any juriidiction thereof ; in such ca●e it must necessarily follow , that the jurisdiction of the admiralty ( being thereby excluded the cognizance of such maritime contracts both sides the water ) must keep to sea in all weathers , yet scarce retain the libert , ( if i may so say ) of a confinement super altum mare , according to the energy of that suggession reported in the case aforesaid , of susans against turner ; d where it is said , that if a suit be commenced in the admiralty for a contract supposed to be made super altum mare ; the defendant upon a surmize or suggestion , that it was made upon the land within the realm , may have prohibition . according to which comnutation , with the premises considered , the jurisdiction of the admiralty seems to be hard put to it both by sea and land ; nor need it seem any thing strange that the jurisdiction of the admiralty seems excluded of cognizance in such cases of charter-parties , whether made at land or beyond sea , if a bare surmize or suggestion according to the ●aid report in the case of susans against turner , may work as to a prohibition against the admiralty when a suit is there commenced for a contract not appearing other then made super altum mare . according to these premises , if the charter-party be made at land , though to be performed upon or beyond the seas , it is to be tryed in the ordinary course of the common law ; and if the contract be made beyond sea , for doing any act within the realm , &c. the court of admiralty hath not any jurisdiction thereof ; and if the suit be commenced in the admiralty for a contract supposed to be made upon the sea , then by a surmize or suggestion , that it was made upon the land , a prohibition ( according to the said case ) may be had . thus in matters of charter-party this side the sea , the common law seems to claim the cognizance ; in contracts made beyond sea , the admiralty seems not to be allowed any jurisdiction ; and in contracts supposed to be made upon the sea , the defendant upon a surmize may have a prohibition ; but no fiction can spunge the ocean , nor turn the sea into dry land , or the bay of mexico into middlesex , till it be proved as well as surmized , in the said case of susans against turner , where it is said , if a suit be in the admiral court , for a contract supposed to be made super altum mare , the defendant upon a surmize that it was made upon the land within the realm , may have a prohibition . it is there farther added in these words , viz. and that it may come in issue if it was upon the land or upon the sea. but by the justices , their rule is , that upon such a suggestion they shall not grant a prohibition after sentence pass'd . so that , be the verity of the fact ( as to the super altum mare ) in it self never so liquid , yet being primarily but supposed ( as all things in judicio , though in themselves never so clear , never so true , yet must be alledged before the court can proceed ) a counter-supposition or crosssurmize may work ( according to this ) as to a prohibition , to bring it in issue whether it was upon the land or upon the sea ; and so it seems as if scarce possible in any case to avoid a prohibition , for the reallest truths and the undenyablest verities under the sun , if in judicio & foro contentioso , can be at first but supposed truths ; for the court , if it proceed legally , cannot but proceed secundum allegata first , & probata next . charter-parties , bills of sale of ships , and the like maritime contracts are commonly made according to the law of oleron , and frequently wic● a clause express to that purpose inserted therein ; the civil law , the laws and customes of the sea , whereby the admiralty proceeds , takes notice thereof , and can judge and determine accordingly ; how far other laws , that are accommodated to matters of another element , though in them●elves and in their proper sphere most excellent , can do the like , is no part of the design of this compendious treatise to determine . but that prohibitions have been granted upon charter-parties , is undenyably true . e ye● , the lamentable cases of poor mariners , for their wages have not of late unhappy years escaped prohibitions , although it be not denyed but they may all joyn in one libel in the court of admiralty , whereas at the commo● law ( if they must there prosecute ) ▪ they may not bring their actions otherwise then severally and apart , to their greater expence and charges , respect being not had to the identity of the case , or the poverty of the dem●ndants , to introduce a joynt action . to this purpose it is reported , f that where judgement was given in the court of admiralty against one jones a master of a ship at the suit of certain poor mariners for their wages , a prohibition was prayed upon a suggestion that the contract was made at london in england ; but the prohibition was denyed , because he had not sued his prohibition in due time , viz. before a judgement given in the court of admiralty . whereby it seems as if it was not the nature of the case , though for mariners wages , that prevented the prohibition , but the unseasonable suing for it , viz. after judgement given in the court of admiralty . touching the jurisdiction of the admiralty in ontracts made , and other things done upon the rivers beneath the first bridges next the sea , where it ebbs and flows , and in the ports , creeks , havens , peers , sounds , harbours , rhodes , bayes , channels , and other places infra fluxum & refluxum maris ; it hath been asserted , g that by the laws of this realm the court of admiralty hath no cognizance , power , or jurisdiction of any matter within any county , either upon land or water ; so as it is not held material , whether the place be upon the water , infra fluxum & refluxum maris , but whether it be upon any water within any county ; and it is farther added , h that for the death of a man , and of mayhem , ( in these two cases only ) done in great ships , being and hovering in the main stream only beneath the points of the same rivers , nigh to the sea , and no other place of the same rivers , nor in other causes , but in these two only , the admiral hath cognizance ; yet probably it will not be denyed , but that by exposition and equity of the statute of r. . cap. . ( whence , as supposed , that assertion is taken ) he may inquire of and redress all annoyances and obstructions in those rivers , that are any impediment to navigation or passage to or from the sea : and also try all personal contracts and injuries done there which concern navigation upon the sea. and no prohibition is to be granted in such cases . i the reader may at his leisure consult the said statute , whether it says , [ in the main streams only beneath the points of the same rivers nigh to the sea ] or whether the statute doth not say , [ in the m●in stream of great rivers , only beneath the bridge of the same rivers nigh to the sea ] for the difference may be material . in the case of palmer against pope it is reported , k that the statute saith , ad prim●s pontes . and in the case of leigh and burley , l it is said , that the of r. . is mis-printed , viz. that the amiral shall have jurisdiction to the bridges : for the translator mistook bridges for points , that is to say , the lands end . so reported in the said case . the words of the statute are , viz. [ in the main stream of great rivers , only beneath the , &c. of the same rivers nigh to the sea , and in no other places of the same rivers the admiral shall have cognizance ] it is not denyed by the statute , but the admiral hath jurisdiction in cases of mayhem and death in the main stream of great rivers ; rivers are not found beneath the lands end ; if bridges be mistaken by the translator for points , and points be taken for the lands end , then rivers and the main stream of great rivers should be beneath the lands end , where they empty them●elves into the main ocean . again , the words of the statu●e are , [ in the main stream of great rivers only beneath the , &c. ] and the words in that ca●e of leigh against burley are , [ that the admiral shall have jurisdiction to the , &c. ] question is , whether there also be a mistake in the translation ? for the difference is great and very significant between to a place , and beneath a place . in the said case of leigh against burley , it is said , that the statute of r. . is mis-printed ; yet probably the press followed the copy , and in so doing it may be excused from an errour of mis-impression ; in the said case it is also said , that the translator mistook bridges for points , that is to say , the lands end ; a right impression of a mis-translation ( if any such be ) seems not to render the word bridges , in stead of points or lands end , as mis-printed , so long as the press agrees with the copy . pons in the latine rendred into english seems rather to be a bridge then points , or a lands end ; pons in the latine sounds more like points then bridge , and so doth pont in the french , which yet is a bridge , and not point or lands end ; which in the french seems to be more properly rendred by the word la poincte or un poinct ; but a point of land at which rivers or waters meet , seems to be most properly rendred by the word bec in the french , which seems sufficiently dissonant from the word points . and those navigators , that by experience know the meaning of doubling the point , probably do ●eldome sail over rivers , either great or small , beneath such points . but this only by way of observation upon the said mistake , as reported in the ●aid case of leigh against burley ; and not in the least by way of any thing else in reference to what is not of any private interpretation , but reserved only for ●uch as unto whom are specially committed the oracles of the law. the assertion , [ that it is not held material , whether the place be upon the water , infra fluxum & refluxum maris , but whether it be upon any water within any county ] was formerly hinted ; yet possibly it may be material to know what waters are held to be within a county , specially if the question put by doderidge serjeant in the same case of leigh against burley be duly considered . in which case it is reported , that the lord coke said , that the admiral should have no jurisdiction where a man may see from one side to the other : but the coroner of the county shall inquire of felonies committed there ; which was held to be good by all the other justices ; and he gave this difference , that where the place was covered over with salt-water , and out of any county or town , there est altum mare : but where it is within any county , there it is not altum mare : but the tryal shall be per vicenetum , of the town . doderidge serjeant demanded this question , the isle of lunday de corpore comitatus of devonshire , and lyes twenty miles within the sea ; whether is that within the county . foster , if the sea there be not of any county , the admiral hath jurisdiction , or else not . in this case it is said , that the admiral hath no jurisdiction where a man may see from one side to the other ; which in a transparent horizon a man may do from the lands end to the cassi●erides , or isles of scilly , which lye seven leagues at least thence distant in the main ocean ; and almost the like from some part of england to the other side the water over to france . the said isles of scilly are de corpore comitatus cornubiae , yet doubtless the high admiral of england ( notwithstanding both sides are mutually visible ) hath jurisdiction on the interflux there , though the said word [ within ] should be taken in a sense as large as the ocean it self . and whereas it is said , that the admiralty hath not any jurisdiction of contracts , pleas , or quereles made or done upon a river , haven , or creek , within any county of this realm , probably it is not thereby meant or intended to be limited or restrained otherwise then according to the statute-law , the laws and customes of the realm , whereof those of the sea are a part ; the realm of england consisting of more elements then one . and if you consult the topography of several of the harbours , havens , ports , rhodes , bayes , sounds , and creeks of this kingdome , probably the admiralty might have in more senses then one a more liquid demonstration , then so to be disjuri●dictioned by any meer supposition , which had no small operation to the prejudice of the admiralty in the days of the late licentious times , when fancies were much in fashion ; thereby reducing jurisdictions to uncertainty , the common fate of all things , in the said days of legerde brain , but especially to the needle●s protelation of justice , as to merchants and mariners in the legal prosecution of their maritime contracts , notwithstanding the resolutions upon cases of admiral cognizance , subscribed by all the reverend judges and justices of both the honourable benches in the eighth year of the reign of our late soveraign charles the first , of blessed memory ; wherein among other things relating to that jurisdiction , it was then unanimously resolved , l that in cases arising upon the thames , the admiralty hath jurisdiction , specially in the point mentioned in the statute of r. . and by equity thereof may inquire of and redress all annoyances and obstructions in those rivers that are any impediment to navigation , or passage to or from the sea , and in all navigable rivers . and no prohibition to be granted . but in the case of goodwin against tompkins , it seems something otherwise ; according to the report , m the case was this . a suit was in the admiral court for setting a ship in a wharf to the damage of the plaintiff : so that none could come to his wharf , which is said within the bill to be within the ward of saint mary hill : and a prohibition was granted : upon a suggestion , that it was good for the ordering of ships . a consultation was granted , hut afterwards upon good advice and opening the matter , a supersedeas to the consultation w●s granted , & quod prohibitio stet ; for the wrong and fact is said to be within a county and ward ; and for that it does not belong to the admiral : for all civil contracts or trespasses done upon the river of thames , or any other river , that is proper to the common law , are tryable in that county , which is next to the bank , and that side of the river where the fact was done ; but in criminal matters upon any river , that is given to the admiral by the statute of h. . cap. . thus it is reported . but the resolution aforesaid , is , that in cases arising upon the thames the admiralty hath jurisdiction , specially in the point mentioned in the statute of r. . and no prohibition to be granted . chap. xii . of the jurisdiction of the high admiralty of england , stat. r. . cap. . stat. r. . cap. . stat. . h. . cap. . & stat. eliz. cap. . the exposition , explanation , and interpretation of the statute-laws being a right properly inherent in the supreme authority that enacted them , and in the reverend judges , the lex loquens , or voice of them ; there remains no more to the good people of his majesties dominions then to yield all obedience to them , and thereby claim their birth-right in them . in order whereto it is every mans prudence , as much as in him lyes , to clarifie his intellect ; yet with such sobriety , that as ignorance may be no obex to his obedience on the one hand , so also that super-curiosity may not quite dazle his intellect on the other ; it is not ignorantia juris , but facti , that can excuse any ; and though in a sense it may properly be said of humane as of sacred laws , that they are not of any private interpretation , whose oracles alone are intrusted with the exposition thereof , yet it is every mans duty to know the rule of his duty ; and he that will understand that he may obey aright , must have a right understanding of what he is to obey . upon the●e considerations it is most clear , that it well becomes all such , who may be concerned in the subject matter of this treatise , to have right-informed apprehensions ( not to make private interpretations ) of the true intent and meaning of the said statutes in order to a clearer prospect of the admirall jurisdiction . it is enacted by the statute of r. . cap. . that the admirals and their deputies shall not meddle from henceforth of any thing done within the realm , but only of a thing done upon the sea , as it hath been used in the time of the noble prince king edward grand-father of king r. . whence it hath been inferred , that the jurisdiction of the admiralty is confined only to things done upon the sea. the said statute says , that the admirals shall not meddle with any thing done within the realm , but only with things done upon the sea , as it hath been used in the time of king edward , grand-father of r. . that is , in the time of edward the third , to the usage in whose days the said words seem to have reference , as limitative with a referendo . and admitting the word [ duly ] if not by the letter of the statute , yet by construction of law , it may seem almost as equally difficult , exactly to know what was the usage as what was the due usage or what was in this point duly used in the days of edward the third ; only with this difference , that an usage being matter of fact , there may be rei evidentia , in that case to prove it self ; whereas to know what was duly used , may be matter of law , and capable of diversities of opinion consonant to various perswasions . and yet until it be known what was in this matter the due usage in the time of edward the third , it seems not indubitably obvious to every running intellect to conceive what may be the full scope and true intent or meaning , that the admirals shall not meddle , &c. but only with things done upon the sea , as it hath been used in the time of king edward , grand-father of king richard the second . for the clearer apprehension wherof it may not be impertinent ( under submission to better judgements , and without presuming on any thing quod est supra nos , as formerly hinted ) to inquire a little what was used or duly used in this point of admiral jurisdiction in the days of the said edward the third , grand-father to king richard the second . to this purpose the learned mr. selden in his impregnable treatise of the dominion and soveraignty of the brittish seas , a le ts us to understand , that it appears by ancient and publick records , b containing divers main points touching which the judges were to be consulted with for the good of the kingdome in the time of king edward the third ; that consultation was had for the more convenient guarding of the sea. for the whole bench of judges were then advised with , to the end ( so runs the record ) that the form of proceedings heretofore ordained and b●gun by edward the first , grand-father to our lord the king , and by his councel , at the prosecution of his subjects , may be resumed and continued , of●ngland ●ngland , and the authority of the office of admiralty in the same , as to the correcting , expounding , declaring , and conserving the laws and statutes long since made by his predecessors , kings of england , for the maintaining justice among all people of what nation soever passing through the sea of england ; and to take cognizance of all attempts to the contrary in the same ; and to punish offenders , and award satisfaction to such as suffer wrong and damage ; which laws and statutes were by the lord richard heretofore king of england , at his return from the holy land , interpreted , declared , and published in the isle of oleron , and named in french , le ley olyroun . that which mr. selden takes special notice of , and commends to our chiefest observation , is what we find in these records touching the original of the naval laws published at the isle of oleron . the said statute of r. . makes mention of the usage in the time of king edward , grand-father of r. . who was edward the third ; in whose reign ( according to this record ) not only the form of proceedings ordained by king ed. . and his councel , were to be resumed and continued for the retaining and conserving the authority of the office of admiralty , as to the correcting , expounding , declaring and conserving the laws and statutes made long before by the predecessors of the said king edward the first , for the maintaining of peace and justice among the people of what nation soever , and to take cognizance of all attempts to the contrary , to punish offenders , and to award satisfaction to such as suffered wrong and damage . but also , that those very laws and statutes which were so to be corrected , declared , expounded and conserved by the authority of the office of the admiralty , were the sea-laws published at oleron by king richard the first . so that the said laws of oleron gave the rule , and seems to be the usage concerning the admiralty in the time of edward the third , wereof the said statute of r. . speaks ; and by which laws all maritime affairs , whether upon or beyond the seas , are properly cognizable in the jurisdiction of the admiralty . and in those laws of oleron , so published by richard the first , are comprehended the matters of admiral cognizance , whereunto that form of proceedings ( in these records mentioned , to be ordained by edward the first , and afterwards to be resumed , revived , and continued by edward the third ) relates . which very records are also verbatim transcribed and published by the lord coke , in that part of his instit . concerning the court of admiralty , which speaks of the superiority of england over the brittish seas , and of the antiquity of the admiralty of england , which he there proves expresly as high as to the time of edward the first , and by good inference of antiquity and ancient records much higher . c for it appears by ancient records , that not only in the days of king edward the first , but also in the days of king john , all causes of merchants and mariners , and things happening within the floud-mark , were ever tryed before the lord admiral . d again ; for the clearer understanding of what was the usage in the time of ed. . concerning the admiralty , it may be observed , that in the beginning of these records in edward the third's time it is said , that a consultation was had , and the whole bench of judges advised with , to the end , that the form of proceedings heretofore ordained by edward the first and his councel , should be resumed and continued , not only for the retaining and conserving the ancient superiority of the sea of england , but also the office of the admiralty , as to the correcting , expounding , conserving , and declaring the laws and statutes long since made by his predecessors , for the maintaining of peace and justice , &c. if upon a full consultation in ed. the third's time , that form of proceedings which had been formerly ordained by ed. the first and his councel , shall be again resumed and continued , it seems then requisite in the next place to inquire a little farther , what was ordained by the said edward the first and his councel , over and above what is already mentioned in the said record . and it appears , that in the days of the said ed. the first , th●r● was a good provision and remedy ordained for such complainants as by prohibit●ons issuing out of one court to surcease the legal prosecution of their rights in another , could obtain redress in neither . for by the statute of the writ of consultation in anno ed. . it is enacted , that where there is a surceasing of proceedings upon prohibitions , and the complainants could have no remedy in the kings court , that then the lord chancellour , or lord chief justice upon sight of the libel , should write to the judges before whom the cause was first moved , that they proceed therein notwithstanding the kings prohibition directed to them before . in a word therefore ; the said statute of r. . mentions the usage in the time of ed. . edward the third resumes and continues the laws of oleron published by rich. . and what was ordained in the time of ed. . and edward the first ordained as in the records aforesaid , and statute of consultation . the expositor of the terms of law in his description of the lord admiral , e says , that he is an officer to judge of con - contracts between party and party concerning things done upon or beyond the seas . and in another of ancient authority it is said in these words , f viz. that if an obligation bear date out of the realm , as in spain , france , or such other , it is said in the law , and truth it is , ( they are the authours words ) that they be not pleadable at the common law. also the learned mr. selden in the fore-cited place says , that the jurisdiction of the common law extends not it self beyond the seas , and without the realm of england ; for ( as he speaks , g ) in the law of the land it is reckoned among the priviledges of such as are absent , that they , who shall be out of the realm of england at the levying of a fine of any land , and making proclamation thereupon , are not so bound either by a yearly prescription , as heretofore , or by a five years prescription , as is usuall of later times , but that their right remains entire to them upon their return home . so that being beyond sea , and without the realm of england at that time , and nothing of prejudice in that case fastned on them by reason of any non-appearance , it seems as without the reach of the common law. and mr. selden in the same place proves , that to be beyond the seas , or extra quatuor maria , doth in the common law-books signifie the very same thing with extra regnum . and again mr. selden ( for 't is but due as well to the truth as his memory to repeat his authority ) in the same place asserts , concerning things relating to actions for matters maritime , that they were not wont to be entered in express tearms heretofore , h in the ordinary courts of the common law , whose jurisdiction was ever esteemed of such a nature , that an action instituted about a matter arising in any other place then within the bounds of the realm , was by the ancient strict law always to be rejected by them . after which manner as it hath been a custome now for many years , that an action ought to be rejected , unless the matter have its rise within the body , as they call it , of the county , that is , within some province or county of the island , usually given in charge to certain governours or officers known to us by the name of sheriffs ; so also is it in the sea-province belonging by the ancient received custome , to the high admiral or his deputies , not only so far as concerns its defence and guard , but also as to matter of jurisdiction . likewise in the same place mr. selden in honour of the admiralty says , that in ancient records , i concerning the customes of the court of admiralty , it was an usual custome in the time of king henry the first , and of other kings both before and after him , that if any man accused of a capital crime done by sea , being publickly called five times by the voice of the cryer ( after so many several days assigned ) did not make his appearance in the court of admiralty , he was banished out of england , & de mer appurtenant au roy d'angleterre , or out of the sea belonging to the king of england , for forty years , more or less , according to the pleasure of the admiral . this hath mr. selden the lawyer , as well as mr. selden the antiquary ; there is far less feasibility of contesting with him , then of gaining honour by subscribing to his authority . wherefore , upon an interestless perpension of what hath been only touch'd , not so largely handled as might have been in a set treatise proportionable to this subject matmatter , the jurisdiction of the admiralty may be found not only a body of more solidity then to dissolve only into water , and not only a jurisdiction proceeding by such laws as have from age to age successively been owned by the supreme authority of this nation , but also such a jurisdiction as though it hath its due bounds , yet possibly ( according to what hath been duly used in the time of king edward grand-father of king rich. . ) not so exceedingly straight-laced as some in the late licentious times imagined ; specially if in addition to the premises they consider what hath been formerly said to have been urged by haughton , k viz. that the intent of the statute of r. . cap. . was not to inhibit the admiral court , to hold plea of any thing made beyond sea , but only of things made within the realm , which pertains to the common law , and is not in prejudice of the king or common law , if he hold plea over the sea ; and that this was the intent of the statute , appears by the preamble . and in the same report it is farther said , that walmesly and warburton justices agree , that if a thing be done beyond sea , as if an obligation bears date beyond sea , or be so local , that it cannot be tryed by the common law , if the admiral hold plea of that , prohibition shall not be awarded , for it is not to the prejudice of the king or of the common law. by the statute of r. . cap. . it is enacted and declared , that the court of admiralty shall have no cognizance of contracts , pleas , and quereles , or other things done within the bodies of the counties , as well by land as by water ; nevertheless of the death of a man , and of mayhem done in great ships being and hovering in the main stream of great rivers only beneath the bridge of the same rivers nigh to the sea , and in no other places of the same rivers , the admiralty shall have cognizance . from hence it hath been observed by way of inference , how curious the makers of this statute were to exclude the admiralty of all manner of jurisdiction within any water which lyeth within any county of this realm ; possibly it hath not been so exactly observed by way of redress , how unfortunate specially of late years the same hath been , in having its jurisdiction impeded and obstructed in waters without any county of this realm , by the prohibitory consequences of a surmize or suggestion , when in rei veritate , the matter was otherwise then surmized or suggested . this is that statute whereof mention is made in the precedent chapter , touching the mistake of the word [ bridge ] instead of [ points ] . it seems something more then strange in nature , to find a main stream , or great rivers ( whereof this statute speaks ) beneath the points which beak out into the main sea , as navigators well know when they double the point , the main sea or great rivers being commonly emptyed into the main ocean above , not beneath such points , and usually cease to be streams or rivers before the waters thereof reach the said points . and it were no prejudice if it were ascertained what havens and harbours may be held as within the bodies of some county , because possibly geographers know not with what counties to incorporate milford-haven , mounts-bay , tor-bay , plymouth-sound , and the like . the law in express tearms hath put the difference , res facta in portu , non facta in terra . l the law knows no preternatural confusion of elements , lex semper imitatur naturam . time was ( & olim meminisse dolebit ) in the late licentious days , when the admiralty of england between land-imagined , and the sea-county-corporated , could scarce keep above water ; but now that justice once more looks like it self , and suum cuique tribuitur , miraculously arrived instead of sic volo , sic jubeo , &c. insomuch that it might then be as truly as sadly said , terras astraea reliquit ; yet now that justice by an over-ruling hand of divine providence is again turned into its ancient and proper channel , and it being well known to the whole world of what lustre and value the jewel of the admiralty is ( when well set ) in the diadem or crown of great brittain , it may not now be unseasonable to alledge what is asserted , ( as is aforesaid ) to be of ancient record , m viz. that not only in the days of edward the first , but also in the days of king john , all causes of merchants and mariners , and things happening within the floud-mark were ever tryed before the lord admiral . consonant to what was resolved in sir hen. constables case , n that the soyl betwixt the high and low water-mark may be the subjects ; but when covered with water , the admirals jurisdiction reaches to it . by the statute of h. . cap. . it is enacted , that the statute of . r. . cap. . shall be firmly holden , and kept , and put in execution . this statute therefore seems as a reviver , or in confirmation of that , which ( as aforesaid ) mentions according to that which hath been duly used in the time of king edward , grand-father of king richard the second ; which being formerly insisted on , a retrospect may here suffice . by the statute of eliz. cap. . it is enacted , that all and every such of the said offences before mentioned , as hereafter shall be done upon the main sea , or coasts of the sea , being no part of the body of any county of this realm , and without the precinct , jurisdiction , and liberty of the cinque-ports , and out of any haven or pier , shall be tryed and determined before the lord admial , &c. it hath been hence inferred , that by the judgement of the whole parliament , the jurisdiction of the admiralty is wholly confined to the main sea , or coasts of the sea , being no parcel of the body of any county of this realm ; and that this statute is a particular description of that jurisdiction as to the limits thereof . this statute gives the jurisdiction of the admiralty a power of cognizance in such offences done upon the main sea , or coasts thereof ; there 's the ampliation : being no part of the body of any county , and without the precinct of the cinque-ports , and out of any haven or pier ; there 's the limitation . where either of these is part or parcel of the body of any county within this realm , the admiralty may not claim jurisdiction therein . touching contracts made beyond sea the said letter of this statute is silent ; in the resolutions upon the cases of admiral jurisdiction , o the substance of the first article or proposition is , that no prohibition be awarded against the court of admiralty in suits there commenced upon contracts made beyond the seas . chap. xiii . of the agreement touching the admiralty in anno . as also of the resolutions hill. . car. . upon the cases of admiral jurisdiction . the non-observance of the said agreement , being for the more quiet and certain execution of admiral jurisdiction , was one of the objections of the admiralty in anno jac. reg. whereof mention is made by the lord coke , in par. . instit . cap. . and where it is said to be a supposed agreement , and that it had not been delivered to the then judges , but acknowledged to have heard the same read over in his majesties presence ; and to which answer was then made , that for so much thereof as differeth from those answers , ( viz. to the other objections then made ) it is against the laws and statutes of this realm : and therefore the judges of the kings bench never assented thereunto , as is pretended , neither doth the phrase thereof agree with the tearms of the laws of the realm . this was the answer then given to that objection grounded upon the said agreement . whether the same were no more then supposed , may be referred to the matter of fact ; wherein , if so , the evidentia rei will easily liquidate the scruple , and dissipate dubieties . though the said agreement be disagreed , yet the law like the axis of the body politick , remains fixed notwithstanding the rotation of opinions ; and whether so much thereof , as differed from the answers then made to the other objections , were repugnant to the laws and statutes of the realm , or the phrase discrepant from the tearms thereof , would be more visible upon an inspection , were it free to insert that as an imprinted agreement here , which is called but a supposed agreement there ; therefore to inquire how far the said agreement made , or supposed to be made , in one age , may be obligatory in another , may possibly have an implication of more verity and reality , then the thing it self with general consent doth or may challenge ; yet being in substance consonant to the subsequent resolutions upon the cases of admirall jurisdiction , and being an objection long since under a former impression , with the answer thereto as aforesaid , it may be now a less transgression to omit the thing it self , saltem in terminis , then digression to have given this short hint thereof , quasi in nubibus . the resolutions , hill. . car. . upon the cases of admiral jurisdiction , being the articles , propositions , and agreement made and subscribed in febr. . by all the reverend judges of both the honourable benches , for the accommodating and setling the differences concerning prohibitions , are very energetical in affirmance of much of the rights of the said jurisdiction . the sun need not borrow the auxiliaries of art to demonstrate his light. these articles and this agreement ( whatever the former be ) are more then supposed , being reall and true . you have it here ( as to the body and substance thereof ) in no other words then sir geo. croke in his reports delivers it ; with the requisite addition of the style or preface thereto , together with the names of the lords of his majesties most honourable councel then present ; as followeth , viz. at white hall , febr. . present , the kings most excellent majesty . lord keeper . lord arch-bishop of york . lord treasurer . lord privy seal . earl marshal . lord chamberlain . e. of dorset . e. of carlisle . e. of holland . e. of denbeigh . lord chancellour of scotland . e. of morton . lord v. wimbleton . lord v. wentworth . lord v. faulkland . lord bishop of london . lord cottington . lord newburgh . mr. treasurer . mr. controller . mr. vice-chamberlain . mr. secretary coke . mr. secretary windebank . this day his majesty being present in councel , the articles and propositions following for the accommodating and setling the difference concerning prohibitions , arising between his majesties courts at westminster , and his court of admiralty , were fully debated and resolved by the board ; and were then likewise upon reading the same as well before the judges of his majesties said courts at westminster , as before the judge of his said court of admiralty , and his atturney general , agreed unto and subscribed by them all in his majesties presence , viz. . if suit should be commenced in the court of admiralty upon contracts made , or other things personal , done beyond the seas , or upon the sea ; no prohibition to be awarded . . if suit be before the admiral for fraight , or mariners wages , or for breach of charter-parties , for voyages to be made beyond the seas : though the charter-party happen to be made within the realm ; so as the penalty be not demanded , a prohibition is not to be granted . but if the suit be for the penalty ; or if the question be , whether the charter-party were made or not ; or whether the plaintiff did release or otherwise discharge the same within the realm ; this is to be tryed in the kings courts at westminster , and not in his court of admiralty . . if suit be in the court of admiralty for building , amending , saving , or necessary victualling of a ship , against the ship it self , and not against any party by name , but such as for his interest makes himself a party ; no prohibition is to be granted , though this be done within the realm . . although of some causes arising upon the thames beneath the first bridge , and divers other rivers beneath the first bridge , the kings courts have cognizance ; yet the admiralty hath also jurisdiction there , in the point specially mentioned in the statute of r. . and also by exposition and equity thereof , he may inquire of and redress all annoyances and obstructions in these rivers , that are any impediment to navigation or passage to or from the sea : and also to try personal contracts and injuries done there which concern navigation upon the sea. and no prohibition is to be granted in such cases . . if any be imprisoned , and upon habeas corpus brought ; if it be certified , that any of these be the cause of his imprisonment , the party shall be remanded . subscribed febr. . by all the judges of both benches . an extract , by way of appendix , of the ancient lavvs of oleron . rendred into english out of garsias aliàs ferrand . together with some marginal observations thereon . london , printed in the year . an extract ( by way of appendix ) of the ancient sea-laws of oleron ; rendred into english out of garsias , aliàs ferrand . the judgements of the sea , and the isle of oleron . for the regulation and government of merchants , owners of ships , part-owners , masters of ships , and common mariners in all maritime affairs . i. when a ship or other vessel , whereof a master is made , belonging to several part-owners , and departing from her own port , arrives at burdeoux , rouen , or such like place , and is there fraighted to sail for scotland , or some other forraign country ; the master in such case may not sell or dispose the said vessel without licence or a special procuration for that purpose from the said owners ; but in case he want monies for the victualling , or other necessary provisions of the said vessel , he may for that end with the advice of his mariners , hypothecate , pawn , or pledge part of the tackle or furniture of the said ship. ii. if a ship or other vessel be in a port or haven , waiting for her fraight , therewith to depart ; the master , before he depart thence , ought first to consult with his company , and say , ( sirs ) we have now an opportunity to set sail ; some of them possibly will say , the weather as yet seems not good enough , the wind being but now newly changed , and we ought to see it somewhat setled ; others of them possibly will say , the weather is good and fair : in this case the said master is to concur with the opinion of the major part of his company ; if he does otherwise , and the vessel happen to miscarry thereby , he is obliged to make good the same , according to the value upon a just appraisement . iii. if any vessel through misfortune happen to be cast away , in whatsoever place it be , the mariners are bound to use their best endevour for the saving as much of the ship and lading as possibly they can ; and if they preserve part thereof , the master is bound to allow them reasonable consideration , whereby to get home to their own country ; and in case they save so much as whereby the master may do this , then may he lawfully pledge to some honest persons such part thereof as may serve for that occasion . but if they have not endevoured to save as aforesaid , then the master is not bound to provide for them in any thing ; but rather they lose their wages when the vessel is lost . and the master may not sell the furniture of the vessel , or her lading without a procuration for that purpose from the owners and merchants ; but yet he ought , if it may be , to have the mariners in a readiness , until he knows the pleasure of the owners ; and herein he ought to doe as becomes a prudent master ; for if he does otherwise , he is obliged to satisfaction . iv. a vessel laden , departing from rochel , or some other place , happens in the course of her voyage to be rendred unfit to proceed therein , yet the mariners save as much of the lading as possibly they can ; the merchants and master are at variance , requiring to have their merchandize or the lading from the master ; they ought indeed to have them , paying fraight for so far as they made the said voyage , kenning by kenning , and course by course , if it so please the master . but if he will , he may repair his vessel , if so be she be in such case as that readily she may be repaired ; but if otherwise , and he cannot hire another vessel to finish his said voyage , then the master shall have his fraight for so far of the said voyage , and for so much of the lading as is there saved . and the fraight of the goods that are saved , ought all of it to be reckoned liver by liver , and the saved goods to pay the costs of their salvage , according as they shall happen to be . and in case it happens that the master , merchant , or mariners promised the people of the country , where such misfortune is , a third or one moity of what by their help should be saved of the ship and lading , out of the dangers they were in ; in that case the justice of that country , where such misfortune happens , ought well to consider what pains they bestowed , and what hazards they did run in the saving thereof , and to reward them accordingly , notwithstanding what promise in such distress so made them as aforesaid by such master , merchant , or mariner . v. if a vessel depart from any country laden or empty , and arrive at any port , the mariners ought not to leave the ship , or to go out of her without the masters leave or licence ; for if otherwise , and the vessel should happen to be lost , or by any misfortune be damnified , they are obliged to make satisfaction for the same . but if the vessel was in such a place , as wherein she was anchored and moared with two or three cables , they may then lawfully go out of her without the said masters licence , provided they leave behind them on ship-board such a number of the ships company , their fellow-mariners , as is sufficient to keep the decks , and the merchandize or the lading of the ship , provided also that they return again in due time and season to their said ship. for if they make unnecessary delays , or stay from the ship longer then is meet , they ought to make satisfaction , if they have wherewithal . vi. if some of the mariners , that hired themselves with the master , go out of the ship without his leave , and drink themselves drunk , or the like , whereby there happens contempt to their master , besides debates , fightings and quarrellings among themselves , whereby some happen to be wounded ; in this case the master is not obliged to get them healed , or in any thing to provide for them , but rather to discharge them of the vessel , and to turn them out of the ship , both them and their comrades . but if by the masters order and command any of the ships company be in the service of the ship , and therein happen to be wounded or otherwise hurt , in this case they ought to be healed and provided for at the costs and charges of the said ship. vii . if it so happens that sickness doth seize on any of the mariners of the ship , while he is in the service of the said ship , the master ought to set him on shore , and to let him have candle-light , and to provide him a lodging , as also to spare him one of the ship-boyes to look to him , or hire a woman to attend him ; likewise to afford him such diet as is usual in the ship , that is to say , so much as he had a ship-board in his health , and nothing more , unless it please the master to allow him more ; and if he will have better diet , the master is not bound to provide it for him , unless it be at his own costs and charges . and if the vessel be ready for her departure , she ought not to stay for the said sick party ; if he recover , he ought to have his full wages or competent hire , rebating or deducting only such charges as the master hath been at for him ; and if he dyes , his wife or next of kin ought to have it . * viii . a vessel is laden to sail for rouen , or some other place ; it happens that a storm overtakes her at sea , and so violent that she cannot escape without casting some of her lading and the merchandize over board , for lightning the said vessel , and preserving the rest of the lading , as also of the vessel it self ; in this case the master ought to say , sirs , it is fit or expedient to cast over board some part of the lading to save the vessel ; and if there be no merchant that answers his pleasure herein , or accords and approves thereof by his silence ; then the master ought to use his discretion , and to do what in him lyes , and to cast part of the lading over board ; and if this please not the merchants , but that they gain-say or contradict it , yet the master , notwithstanding this , ought not to forbear casting out so much goods as he shall see may be for the common good and safety ; he and the third part of his mariners making oath on the holy evangelist , when they arrive at their right port of discharge , that he did it only for the preservation of the vessel , and the rest of the lading that remains yet in her . and the wines ( or other goods ) that were cast over board , ought to be valued and prized according to the just value of the other goods that arrive in safety . and when these shall be sold , the price or value thereof ought to be divided liver by liver among the me●chants ; and the master ought to make the division , and to compute the damage of the vessel , or the fraight at his own choice for the recovery thereof ; and the mariners also ought to have one tun free , and another divided by cast of the dice , according as it shall happen , if he make it appear he did the part of an able sea-man . but if he make not this to appear , then he shall have nothing freely ; and the merchants in this case may lawfully put the master to his oath . ix . if it happen that by reason of much foul weather the master is like to be constrain'd to cut his masts , he ought first to call the merchants , if there be any a board the ship , and such as have goods and merchandize in the vessel ; and to say unto them , sirs , it is requisite to cut down the mast , to save the ship and lading , it being in this case no more then becomes my duty ; and oft times it comes to pass that they also cut their moaring cables , leaving behind them their cables and anchors to save the ship and her lading . all these things are reckoned and computed liver by liver , as goods are that were cast over board ; and when the vessel arrives in safety at her right port of discharge , the merchants ought to pay their shares or proportions without delay , or sell the goods and pledge the mony thereof proceeding to satisfie the same before such time as the said goods may be unladen out of the said ship. and if the vessel be such as usually is let out for hire upon fraight , and there happen controversies and debates touching the premises , if the master observes collusion therein , he ought not to depart , but is to have his compleat fraight as if his tunnage were full . x. when a master arrives in safety at the right port of his discharge with his vessel , he ought to shew his merchants the cordage , ropes , or slings , wherewith he intends to hoyse the goods over board ; and if they find that they need mending , he ought to mend the same ; for if a pipe , hogshead , or other vessel , should happen by default of such cordage , or slings , to be spoyled or lost , the master and mariners ought to make satisfaction for the same to the merchants . so also if the ropes or slings break , the master not foreshewing them to the merchants , he is obliged to make good the damage . but if the merchants say the cordage , ropes , or slings are good and sufficient , and it notwithstanding happen that they break , in that case each of them ought to divide the damage , that is to say , the merchant to whom such goods belong , and the said master with his mariners . xi . a vessel being laden with wines or other goods , hoyses sail to transport the same to brest , or some other place , but the master and mariners trim not their sails so as they might or ought to have done , and it happens that ill weather overtakes them at sea , and so as that the main yard shakes or strikes out the head of one of the pipes , or hogsheads of wine ; this vessel being in safety arrived at her port of discharge , the merchant says to the master , that by reason of his main yard his wine was lost ; the master replying , says , it was not so : in this case if the master and his mariners will make oath ( be it four or six , and such of them as the merchant hath no exception against ) that the wine perish'd not by the main yard , nor by them , or through their default , as the merchant charges them , they ought then to be acquitted thereof ; but if they refuse to make oath to the effect aforesaid , they are then obliged to make satisfaction for the same , for that they ought to have ordered their sails aright before they departed from the port where they took in their lading . xii . a master having hired his mariners , he ought to keep the peace betwixt them , and to be as their judge at sea ; so that if there be any of them that gives another the lye , whilest they have wine and bread on the table , he ought to pay four denieres ; and if the master himself give any the lye , he ought to pay eight denieres ; and if any of the mariners give the master the lye , he also ought to pay eight denieres . and if the master strike any of his mariners , he ought to bear with the first stroak , be it with the fist or open hand ; but if the master doth fiercely assault him with more stroaks , the said mariner may defend himself ; but and if the said common mariner doth first assault the master , he ought to pay five solz , or lose his hand . xiii . if a difference happen between the master of a ship , and any one of his mariners , the master ought three times to take away from him , or lift up before the said mariner the towel , ere he turn him out of the ship , or discharge him thereof ; but if the said mariner offer in the presence of the rest of the mariners to make the master satisfaction , and the master be so resolved that he will accept of no satisfaction from him , but notwithstanding such offer of satisfaction will put him out of the ship ; in such case the said mariner may betake himself to follow the said vessel to her port of discharge , and ought to have as good hire or wages as if he had come in the ship , or as if he had made satisfaction for his fault in the sight and presence of the ship-company ; and if the master take not another mariner into the ship in his stead , as able as the other , and the ship or lading happen thereby to be through any misfortune damnified , the master is obliged to make good the same , if he hath wherewithal . xiv . if a vessel lying at anchor be struck or grapled with by another vessel under sail , that is not very well steer'd , whereby the vessel at anchor is prejudiced , as also wines , or other merchandize in each of the said ships damnified ; in this case the whole damage is to be in common , and to be equally divided and appraized half by half ; and the master and mariners of the vessel that struck or grapled with the other , are bound to swear on the holy evangelist that they did it not wittingly or wilfully . and the reason why this judgement was first given , was , that an old decayed vessel might not purposely be put in the way of a better , which will the rather be prevented when they know that the damage must be divided . xv. suppose two or more vessels in a harbour where there is but little water , so as that the anchor of one of the vessels lyes dry ; the master of the other vessel ought in that case to say unto him whose anchor lyes dry ; master , take up your anchor , for it is too nigh us , and may do us a prejudice ; if neither the said master nor his mariners will take up the said anchor accordingly , then may that other master and his mariners ( who might be otherwise thereby damnified ) take up the said anchor , and let it down again at a farther distance from them ; and if the others oppose or withstand the taking up of their anchor , and there afterwards happen damage thereby , they are bound to give full satisfaction for the same ; in like manner it is , if they neglect the placing of a boy to the anchor , and damage happen thereby , they are obliged to repair the same ; and so also it is in case damage so happen in a haven at low water , for they ought to fasten such boys or anchor-marks , and such cables to theit anchors , as may plainly appear and be seen at full sea. xvi . a vessel going to seek a fraight , arrives at her place of lading in england , or elsewhere ; the master ought then to say to his company ; sirs , will you fraight by your selves , or be allowed at the fraight of the ship ? they are to answer which of the two they intend ; if they take as the fraight of the ship shall happen , they shall have proportionably as the ship hath . and if they will fraight by themselves , they ought to fraight so as that the ship be not impeded or hindred thereby . and if it so happen , that fraight may not be had , the master is blameless ; and he ought to shew them their ship-fare , which he may weigh out to each of them . and if they will there lade a tun of water in stead of so much wine , they may ; and in case there should happen at sea a casting of goods over board , the case is the same for a tun of water as in a tun of wine , or other goods , liver by liver . and if so be that merchants do fraight the said vessel for transportation of goods , what freedome and immunity the said mariner hath , the said merchant shall also have . xvii . the mariners of brittain ought to have but one meal a day from the kitchin , because they have beverage or drinkings out and home ; but those of normandy are to have two meals a day , because they have only water at the ships allowance ; only when the ship arrives at a wine-country , there the master is to procure them wine to drink . xviii . when a vessel doth discharge or unload , and the mariners demand their wages , whereof some have neither bed , chest , nor cabbin aboard , the master may lawfully retain part of their wages till they have brought back the ship to the port from whence she came , unless they give good caution to serve out the whole voyage . xix . if the master hire the mariners in that town whereunto the vessel belongs , whereof some at their own finding , others of them at his own costs and provision ; and it happen that the ship cannot procure fraight in those parts where she is now arrived , but must sail yet farther to obtain it ; in such case they that are at their own finding , ought to follow the master , and such as are at his own costs , ought to have their wages advanced kenning by kenning , and course by course , for that he hired them to one certain place . and if they go not so far as to that place for which the contract was made , yet they ought to have the whole promised hire , as if they had gone thither ; but they ought to bring back the vessel to the place from whence they took her . xx. when a vessel arrives at rouen , or any other place , two of the mariners at a time may go a shore and take with them one meal of such victuals as is in the ship , therein cut and provided , as also bread proportionably as much as they eat at once , but no drink : and they ought very speedily and in season to return to their vessel , that thereby the master may not lose the earnest or hire of the ship ; for if so , and damage come thereby , they are bound to make satisfaction ; or if any of their company be hurt for want of their help , they are to be at such charge of his recovery as one of his fellow-mariners , or the master , with those of the table shall judge or arbitrate . xxi . if a master lets his ship to fraight to a merchant , and set him a certain time within which he shall lade his vessel , that she may be ready to depart at the time appointed , and he lade it not within the time , but keep the master and mariners by the space of eight days , or a fortnight , or more , beyond the time agreed on , whereby the master loseth the opportunity of a fair wind to depart , by reason of this the merchants said default ; the said merchant in this case is obliged to make the master satisfaction for such delay , the fourth whereof is to go among the mariners , and the other three fourth parts to the master , because he finds them their expences . xxii . when a merchant fraights a vessel at his own charge , and sets her to sea , and the said vessel enter into an harbour , where she is wind-bound , that she stays so long till her monies be all spent , the master in that ease ought speedily to send home to his own country for mony ; but he ought not to lose his armogan , or desert his voyage or main design ; for if so , he is the● obliged to make good to the merchant all such damag●s as shall ensue thereby ; but yet the master may take part of the wines or other merchand-goods , and dispo●e thereof to compass his return ; and when the said vessel shall be arrived at her right port of discharge , the said wines that the master hath so disposed of , ought to be valued and appraized at the same rate as the other wines shall be commonly sold for , at no more nor less , and accordingly be accounted for to the merchant ; and the master ought to have the fraight of such wines as he hath so taken and disposed of for the use and reason aforesaid . xxiii . if a pilot undertaking the conduct of a vessel , to bring her to st. mallo , or any other port , fail of his duty therein , so as the vessel miscarry by reason of his ignorance in what he undertook , and the merchants sustain damage thereby , he is obliged to make full fatisfaction for the same , if he hath wherewithal : and if he be not able to make satisfaction , he ought to lose his head . and if in that case the master or any of the mariners , or the merchants , cut off his head , they are not bound to answer for it ; but yet before they do this , they ought to know whether he hath wherewith to make satisfaction . xxiv . a vessel being arrived at her port of discharge , and hoysed up there into dry ground , and so as the mariners deeming her to be in good safety do take down her sails , and so fit the vessel a loof and aft , the master now cught to consider an increase of their wages kenning by kenning ; and if in winding or hoysing of wines , it happens that they leave open any of the pipes , or other vessels , or that they fasten not the ropes well at the ends of the vessel , by reason whereof it slips , and falls , and so lost , or falling on another , both are damnified , or lost ; in these cases the master and mariners are bound to make them good to the merchants , and the merchants must pay the fraight of the said damnified or lost wines , because themselves are to receive for them from the master and mariners , according to the value that the rest of the wines are sold for ; and the owners of the ship ought not to suffer hereby , because the damage happened by default of the master and mariners , in not fastning the said vessels of wine . xxv . it two vessels go on a fishing design in partnership , as for mackerel , herring , rayes , or the like , and do set their nets , and lay their lines for that purpose ; the one of the vessels ought to imploy as many fishing engines as the other , and so shall go in equal shares as to the gain , according to the agreement betwixt them made . after this , if it so happen , that one of the said vessels with her fishing instruments and engines perish , the other escaping , arrive in safety ; the surviving friends of those that perished , may require of the other to have their part of the gain , as also of their fish and fishing instruments ; and they are to have it accordingly upon the oaths of those that escape ; but in or of the vessel it self , they are to have nothing . xxvi . if any ship or other vessel sailing to and f●o , and coasting the seas , as well in the way of merchandizing , as upon a fishing design , happen by some misfortune through the violence of the weather to strike her self against the rocks , whereby she becomes so bruised and broken , that there she perishes , be it on what coasts , country or dominion soever , and the master and mariners , merchant or merchants , or any one of these escape and come safe to land ; in this case the lord of that place or country , where such misfortune shall happen , ought not to let , hinder , or oppose such as have so escaped , or such , to whom the said ship , or vessel , and her lading belong , in using their utmost endevour for the preservation of as much thereof as may possibly be saved . but contrariwise , the lord of that place or country , by his own interest , and by those under his power and jurisdiction , ought to be aiding and assisting to the said distressed merchants and mariners , in saving their ship-broken-goods , and that without the least imbezilment or taking any thereof from them . nevertheless there may be a remuneration or consideration for salvage to such as took pains therein , answerable to their conditions , according to right reason , and a good conscience , and as justice shall appoint , notwithstanding what promise in that case was made to the salvers by such distressed merchants and mariners , as before is declared : and in case any shall do contrary hereunto , or take any part of the said goods from the said poor , distressed , ruin'd , undone , ship-broken persons , against their wills , and without their consent , they are excommunicated by the church , and ought to receive the punishment of thieves , without speedy restitution be made by them ; and there is no custome or statute whatever that can protect them against the said penalties . xxvii . if a ship or other vessel entring into an harbour , or elsewhere , happen by misfortune to be broken and perish , insomuch that the master , mariners , and merchants , which were on board her , are all drowned ; so that the goods thereof in part are driven a shore , the rest floating on the sea , without being sought after by those to whom they belong , they being ignorant of this sad disaster , and knowing nothing thereof ; in this case , which is very lamentable , the lord of that place or country ought to send persons to save the said goods , which he ought to secure and to put into safe custody ; and thereof ought also ( if it may be ) to give notice to the friends or next of kin to the deceased , and to satisfie for the salvage thereof , not out of his own purse , but of the goods saved , according to the hazard and pains taken therein ; and the remainder to reserve in safe custody for one year or more ; and if in that time they to whom the said goods did appertain , do not appear and claim the same , and the said year or more be fully expired , he may publickly sell and dispose thereof to such as will give most , and with the monies proceeding of the sale thereof , he is to procure prayers to be made for the * remission of the sins of the deceased , or to provide marriages for poor maids , and to do therewith such other works of piety and charity as is consonant to reason and a good conscience . but if he assume the said goods either in whole or in part unto himself , he shall incur the curse or malediction of our mother the holy church , with the foresaid pains and penalties , without ever obtaining remission , unless he make satisfaction . xxviii . if a ship or other vessel happen to be lost by striking on some rock , or elsewhere nigh the shore , and the mainers thinking to escape and save their lives , attempt to come nigh the shore or brink of the sea in hope of help , but in stead thereof it sometimes happens that in many places they meet with people more barbarous , cruel , and inhumane , then mad dogs , or ●nraged wolves , who to gain their monies , apparel , and other goods , do sometimes murder and destroy these poor distressed mariners ; in this case , the lord of that country ought to execute justice on such wretches , to punish them as well corporally as pecuniarily , and in their goods , and they are to be plunged into the sea until they be half dead , then to be drawn forth out of the sea , and stoned or knock'd down as you would do even to a dog or a wolf. xxix . if a ship or other vessel arriving at any place , and making in towards a port or harbour , set out her flag , or give other sign to have a pilot come a board , or a boat to towe her into the harbour , the wind or tide being contrary , and contract be made for piloting the said vessel into the said harbour accordingly ; but ( by reason of an unreasonable , yea , accursed and damnable custome in some places , that the third or fourth part of the ships that perish and are lost , shall accrue to the lord of the place where such sad casualties happen ; as also the like proportion to the salvers , and only the remainder to the master , merchant , and mariners ) the persons contracting for the pilotage of the said vessel , to ingratiate themselves with their landlords , and to gain to themselves part of the said ship and her lading , do like faithless villains and treacherous persons sometimes even wittingly , willingly , and out of design to ruine ship and goods , guide and bring her upon the rocks ; and then feigning to aid , help , and assist the now distressed mariners , themselves are the first in dismembring and pulling the ship to pieces ; then purloyning and carrying away the lading thereof contrary to all reason and a good conscience ; and that they may be the more welcome to their landlord , do with all speed post to his house with the sad narrative of this unhappy disaster ; whereupon the said landlord with his retinue appearing at the place takes his share , the salvers theirs ; and what remains the merchants and mariners may have . but seeing this is contrary to the law of god , the edict and judgement is , that ( notwithstanding any law or custome to the contrary ) the said lord of that place , salvers , and all others ●hat take away or embezil any of the said goods , shall be accursed , excommunicated , and punished as robbers and thieves , as fotmerly hath been declared . xxx . touching such false and treacherous pilots , the judgement is , that they ought to suffer a most rigorous and unmerciful death ; for there ought to be very high gibbets erected for them in the very same place , or as nigh as conveniently may be , where they so guided and brought the said ship or vessel to ruine as aforesaid , and thereon these accur-pilots are with ignominy and most shamefully to end their days ; which said gibbets are to be made substantially strong , to the intent that they may abide and remain to succeeding ages on that place , as a visible caution to other ships that shall afterwards sail thereby . xxxi . if the said lord of that place were so feloniously inclined , and so barbarous withal , as not only to permit such inhumane people , but also to maintain and abet them in such villanies , that he may participate of the spoil , and have a share in such wrecks ; in such case the said lord of that place ought to be apprehended , all his goods confiscate , and sold to be converted into pious uses , and for restitution and satisfaction to such as of right it appertaineth ; and himself to be fastned to a poste or stake in the midst of his own mansion house , which being fired on the four corners or quarters thereof , all are to be burnt together ; which done , the walls thereof are to be demolish'd , the stones thereof pull'd down , turn'd to rubbish , and then to be converted to a market place , for the sale only of hogs and swine to all posterity . xxxii . if by reason of tempestuous weather it be thought expedient , for the lightning of any ship or vessel at sea , or riding at anchor in any road , to cast part of the lading over board , and it be so done accordingly for the preservation of themselves ; know , taht the said goods so ejected and cast over board do become his that can first possess himself thereof , and carry them away ; nevertheless , it is here to be farther known and understood , that this holds true only in such case , as when the master , merchant , and mariners have so ejected or cast out the said goods , as that withall they quit all hope or desire of ever recovering them again , and so leave them as derelict , or as things utterly lost and forsaken , without ever making any inquiry or pursuit after them ; in which case only , the first occupant becomes the lawful proprietor thereof . xxxiii . if a ship or other vessel hath cast over board several goods or merchandize , which are in chests well lock'd and made fast ; or books so well secured , and so well conditioned , that they may not be damnified by salt-water ; in such cases it is to be presumed , that they who did cast such goods over board , do still retain an intention , hope , and desire of recovering the same ; for which reason such as shall happen to find such things , are obliged to make restitution thereof to him who shall make a due inquiry or pursuit after them ; or at least to imploy them in charitable uses according to a good conscience . xxxiv . if any man happen to find any thing in the sea , or sea-sand , or on the shore , ( be it precious stones , fishes , or the like , which never belonged to any man in point of property ) it becomes his own ; for such things belong to the first finder , who carries it away . xxxv . touching great fishes that are taken or found dead on the sea-shore , regard must be had to the custome of that country where such great fishes are taken or found ; for by the custome the soveraign prince of that country ought to have his share , his demand or pleasure therein . and good reason , for the subject owes obedience and tribute to his soveraign . xxxvi . in some cases also the lord of the place where some fishes are found may have his share , respect being always had to the laudable custome of the country where such fishes are found ; and he that there finds them is no farther obliged then to save them by bringing them without the reach of the sea , and then forthwith to make it known to the said lord of the place , that so such care may be taken therein as appertaineth to justice . xxxvii . if the lord of the place please , and it be the custome of that country where the said fish was found , he may cause the same to be brought to him that found it , or to the publick and open market-place , but to no other place ; and there the said fish ought to be inventaried and appraised by the said lord according to the custome . and the price being set , the other party that made not the price , shall have his choice or election either to take or leave at that price ; and if either of them whether per fas , or nefas be an occasion of loss or damage to the other , though but to the value of a deniere , he is obliged to make him restitution . xxxviii . if the costs and charges of carrying the said fish to the said market-place , may probably amount to a greater summe then the fish it self may be worth , then the said lord is bound to take his share at the place where such fish was found . xxxix . also the said lord ought to submit to the foresaid costs and charges , for that he ought not by anothers damage to inrich himself ; otherwise he sins . xl. if by some chance or misfortune the said fish happen to be lost , or otherwise stoln away from the place where it was first found , and this about the time of the said lords going to see it , or before ; in this case he that first found it is not any way obliged to make it good . xli . in all other things found by the sea-side , which have formerly been in the possession of some or other , as wines , oyls , and other merchandize , although they have been cast over board , and left by the merchants , and so ought to appertain to him that first finds the same ; yet herein also the custome of the country is to be observed as formerly in the case of fish . but in case there be a presumption that these were the goods of some ship that perished , then neither the said lord , nor finder thereof , ought to take any thing thereof so as to convert it to their own use ; but they ought to doe th●rewith as before hath been said , that is , to cause therewith that prayers be made for the deceased , as also other special good works ; or otherwise they shall incur the forementioned maledictions . xlii . if any ship or other vessel at sea happen to find a fish , it is wholly theirs that found it , in case no due pursuit be made after it ; and no lord of any place ought either to challenge it or demand any part thereof , although they bring it to his ground . xliii . if any seek for gold or silver on the sea-shore , and findeth some ; he ought to restore it all , without any diminution thereof . xliv . if any going along the sea-shore to fish , or otherwise , happen to find gold , or silver , or the like , he is bound to make restitution thereof , deducting for his own pains ; otherwise if he be poor , he may retain it to himself , that is , if he know not to whom to restore it ; yet he ought to give notice of such his sinding the same , to the neighbourhood and parts next adjacent to the place where he found it . moreover he ought to advise with his prelate , curate , or confessor , who ought to weigh and take into consideration the indigency and poverty of the finder , and the quantity of the silver , and then to give him such advice as is consonant to a good conscience . xlv . if a vessel by stress of weather be constrained to cut her towes and cables by the end , and so to quit and leave behind her both cables and anchors , and make to sea as please the wind and weather ; in this case the said cables and anchors ought not to be as lost to the said vessel , if there were any boy at them ; and such as fish for them are bound to restore them , if they know to whom : but withal they ought to be paid for their pains , according as justice shall determine . but because sometimes they know not to whom to restore them , the lords of the place have their shares , and the finders theirs , and they neither cause pater noster to be said , nor avie maria , as they ought . and therefore it hath been ordained , that every master of a ship cause to be ingraven , or set upon the boyes thereof , his own name , or the name of his ship , or of the port or haven whereof she is ; which will prevent great inconveniencies ; for it sometimes happens , that he that left his anchor in the morning , hath recovered it again by night ; and such as detain it from him , are no better then thieves and pirates . xlvi . if any ship , or other vessel by any casualty or misfortune happen to be wreck'd and perish ; in that case the pieces of the bulk of the vessel as well as the lading thereof ought to be reserved and kept in safety for them to whom it belonged , before such disaster happened , notwithstanding any custome to the contrary . and all takers , partakers , abettors , consenters , or contrivers in the said wreck , if they be bishops , prelates , or clerks , they ought to be deposed and deprived of their benefices respectively ; and if they be lay-men , they are to incur the penalties aforesaid . xlvii . which is to be so understood , when the said ship or vessel so wreck'd did not exercise the thievish mystery of robbing and free booting , and when the mariners thereof are not pirates , sea-rovers , or enemies to our holy catholick faith. but in case they be pirates , robbers , sea-rovers , turks , or other enemies to our said catholick faith , every man may then deal with such as with meer brutes , and despoil them of their goods without any punishment for so doing . a series or catalogue ( according to sir spelman's computation ) of such as have been dignified with the office of lord high admiral in this kingdome , since king john's time to to the reign of king charles the first of blessed memory . wherein no mention is made of marthusius , that princeps nautarum , in k. edgars time ; nor of those other tetrarchs of his navy , who for the guard of the ●rittish seas had no less then a thousand sail of ships under their command ; nor of those other commanders in chief touching the sea-affairs , who have been , beside the common and usual mode , constituted by his successors , kings of england ; but of such only , as in the ordinary way have been dignified with the said office and marine authority in this kingdome , viz. h. . richard de lucy is said to have maritimam angliae . h. . thomas de moleton was constituted capitaneus & custos maris & portuum maritimorum . ed. . william de leiburne is styled at the assembly at bruges , martii , ed. . . admirallus maris angliae . ed. . john de botetort , admiral of the north , for the coast of yarmouth , and that station . william de leibourn , admiral of the south , for por●●●outh , and that station . a certain irish knight , admiral of the west , and the parts thereof . admirals of the north , viz. admirals of the west , viz.   from the mouth of the river of thames north-ward . from the mouth of the river of thames west-ward .   ed. . edward charles . gervase allard .   ed. . john botetort . william cranis .     ed. . nichalds cryoll .   ed. . john perbrun , aliàs perburn . robert leiburn , knight .     ed. . john athey .   ed. . john perburn . robert de leiburn , knight , admiral of the western ports of england , wales , and ireland .   ed. . john perburn . robert battail , aliàs batall , one of the barons of the cinque-ports .   ed. . john sturmy . robert bendon .   ed. . john otervin . nicholas keriel . walsingh . calls these the three admirals of the three coasts of england , viz. of yarmouth , portsmouth , and the west . and here note , that the south coast is comprehended in the west .   john de felton .   ed. . john de stormy . nicholas criell .   ed. . john sturmy . nicholas criell .   ed. . john layborne .     ed. . john perbrun . wares . de valoniis .   ed. . william de clinton .     ed. . john de norwico . roger de hegham , aliàs higham .   ed. . thomas ughtred .     ed. . john de norwico . walter de say , baronet .   ed. . robert ufford , & william de manton .   john de roos . admiralli flotae .   ed. . walter de manney . barthol . de burghershe , k t.   ed. . thomas de draiton . this thomas elsewhere appears not as admiral , but only as vice-admiral to walter de manney : so possibly in some others there may be some errors also . peter dardus , aliàs bard.   ed. . ro●ert morley , robert trussell . bar. de hengham .     ed. . richaard , fil. alani , com. arundeliae .     ed. . robert de morley . william clinton , com. huntingd .   ed. . william trussel . robert beaupell .   ed. . william trussell . john de monte gomerico .   ed. . robert uffer . com. suffolk . reignald de cobham .   ed. . richard , fil. alani , com. arundeliae .     ed. . robert de ufford , comes suff. richard , fil. alani , com. arundeliae .   ed. . john de howard , knight . john de monte gomerico , knight .   ed. . walter de manny , bar. s. salvato . reignald de cobham , knight .   ed. . robert de causton . john de bello campo , knight of the noble order of the garter .   ed. . robert de morley .     ed. . william de bohun . com. northampt. henry d. of lancaster .   ed. . william de bohun . com. northampt. tho. de bello campo , senior , com. warwicen .   ed. . rob. de morley , bar. de hengham . john de bello campo , brother to the said thomas .   ed. . robert de morley . guido de brian , knight .   ed. . guide de brian .     , ed. . robert de morley . guido de brian .   ed. . john de bello campo aforesaid , was constituted high admiral as well of the north as of the west of england , julii , ed. . at which time he was also lord warden of the cinque-ports , constable of the tower of london , and of the castle of dover ; and dyed decemb. . the same year in possession thereof .   ed. . robert herle , knight . admirallus omnium flotarum utriusque partis .   ed. . ralph spigornell . admirallus utriusque partis .   ed. . nicholas tamworth , knight . robert aston , knight .   ed. . john nevill , kt. bar. de raby . guido brian .   ed. . ralph de ferrariis . robert aston , knight .   , , ed. . w. de nevill . phillip courtney .   ed. . william de ufford , william de monteacuto . com. suff.   , ed. . mich. de la poole , knight , dn. de wingfield . brother of rob. de hales , prior of the hospitall of s. jo. of hierusalem .   r. . thomas de bello campo , jun. com. war. richard , fil. alani . com. arundel .   r. . thomas percy , frat. com. northumb. hugh calveley , knight .   , r. . william de elmham , knight . phillip courtney , knight .   r. . william de elmham . john roches , knight .   r. . walter , fil. walt. knight , dn. de woodham . john roches , aliàs de rupibus , knight .   r. . henry percey , com. northumb. edward courtney , com. devon .   r. . tho. percey , frat. hen. com. northumb. jo. radington , prior of saint john of hierusalem .   r. . phillip darcy , k t. thomas trivet , knight .   r. . richard , fil. alani , com. arundel , admirallus angliae .   r. . jo. de bello monte , bar. de folkingham . jo. holland , com. huntington .   r. . jo. de rupibus , kt.     r. . jo. de bello monte , praedict . jo. holland , com. praedict .   r. . edward com. rutland . jo. holland , com. praedict .   r. . edward , com. rutland , & cor●●giae , afterwards d. of albemarle . constituted high admiral as well of north as western parts .   r. . john beaufort , marq. dorset , & com. somerset . fil. jo. de gandavo , d. of lancaster , admiral 〈◊〉 north and west .   ●● r. . thomas percey , com. winchester , frat. hen. com. northumb. he was then constituted admiral of both parts .   h. . rich. gray , bar. de codenore . thomas reniston , knight .   h. . tho. beaufort , frat. praed . marq. dors . tho. dom. berkley , knight .   h. . nicholas blackburn , esquire . richard cliderhow , esquire .   admirals of england , &c. h. . tho. lancastrius , reg. h. . fil. vice-roy of ireland , high steward of england ; afterward d. of clarence . admirallus utriusque partis . h. . john beauford , praedict . com. somerset . admirallus angliae . h. . edmund holland , earl of kent . admirallus angliae . h. . thomas beuford , praed . adm. angliae . h. . john lancastrius , d. of bedford , e. of richmond and candale , high constable of engl. fil. reg. h. . admirallus angliae . h. . joh. holland , d. of exon. e. of huntington . constituted ( together with his son ) admirals of england , ireland , and aquitain , for life . h. . will. de la poole . mar. & e. of suffolk , made admiral of england , ireland , and aquitain , during the minority of hen. d. of exon ; who with his father had that office by the kings ●rant , ad terminum vitae eorum , &c. h. . hen. holland , d. of exon. adm. angliae , hiberniae & aquitaniae . ed. . rich. nevil , comes warwic . & sarisb . admirall of england , ireland & aquit . ed. . will. nevil , e. of kent , & bar. falconberg . adm. of engl. ireland , & aquit . ed. . richard d. of gloucester , brother to the king ; adm. of engl. irel. & aquit . h. . rich. nevil , e. of warwic . & sarisb . capt. of the town and castle of calice . constable of the castle of dover , & custos . portuum . adm. ut supra . ed. richard d. of gloucester , praedict . constituted admiral , ut supra . r. . john howard , d. of norfolk . adm. of engl. ireland & aquit . h. . jo. de veer , e. of oxford , high chamberlain of england , &c. adm. ut supra . h. . edw. howard , knight , fil. tho. e. of sur. afterwards d. of norf. adm. ut supra . h. . tho. howard , eld . brother of the said edw. e. of sur. afterwards d. of norf. adm. ut supra . h. . henr. fil. nothus , reg. h. . d. of richm. & somers . e. of nottingh . adm. ut supra . h. . will. fitz william , e. of southampt . adm. ut supra . h. . john russel , knight , dom. russel . admirall , ut supra . h. . john dudley , knight , vicecom . insulae , & bar. de malpas , &c. adm. ut supra . ed. . tho. de s. mauro ( vulg. seimor ) knight , dom. de s. mauro de sudley , brother to edw. d. of somers . adm. angl. hib. walliae , cales . bologniae , &c. ed. . john dudley , e. warwic . vicecom . lisley , &c. magnus admirallus angl. hib. wall. cales . bologn . & marchiarum earundem , normanniae , gasconiae , & aquitaniae ; also praefect . gen. classis & marium regis , &c. ed. . edw. clinton , knight , bar. clinton , & saius . admiral , ut supra . mar. will. howard , knight , bar. effingham . adm. ut supra . mar. edw. clinton , knight , bar. clinton & saius . adm. ut supra . eliz. charles lord howard , knight of the noble order of the garter , baro de effingham , e. of nottingh . magn. adm. angl. hiber . ac dominiorum & insularum earundem villae calesiae & marchiarum ejusdem , normandiae , gasconiae , & aquitaniae ; also , praefect . gen. class . & marium dict . regnorum . jac. georgius , marchio & com. buckingh . vicecom . villers , baro de whaddon , deinde d. buckingh . knight of the noble order of the garter , &c. constituted magn. adm. ut supra . non est dubium ( uti spelman ) quin perplures procerum istorum , equites fuerint periscelidis sive garterii ; sed cum id sibi non prompte innotuerit , aliis reliquit disquirendum . an alphabetical table of the principal things contained in this treatise . admiral ; it 's etym●n or original , with the various appellations thereof . page . to the antiquity thereof in forraign parts . . to the antiquity thereof in england . . to who the first admiral in france . twelve admirals slain at once at the siege of antioch . aegina , where scituate ; supposed by some to have first invented the art of navigation . aegean sea , why so called . africa , by whom first peopled . agreement national , between england and france , acknowledging the soveraigntie of the seas to be in the king of great brittain . , anchors ; h●w to be laid in harbours where but little water . , alcibiades , admiral to the athenians . antonius pius , his memorable answer to eudemon's complaint touching shipwrack . pag. arragon , famous for maritime constitutions . arrogatio , what it is , and how it differs from adoptio . aruad , the inhabitants thereof able marinors . asia , by whom originally peopled . athenians , their two chief maritime magistrates . made tributaries by the sea-fights of minos . averidge , what the law is therein . aureus , how much in value among the ancients . b. barcelonians , famous for sea-laws . baxter case against hopes . beast with ten horns , what meant thereby . , bridgmans case . brights case against couper . brittains , of old famous for navigation ; and how they anciently restrained all strangers , merchants excepted , from approaching the brittish coasts . boyes to the anchors , to have the name of the ship or skipper engraven thereon . c. candie , formerly called the isle of crete . pag. canon-law , what ; the original thereof . carbonianum edictum ; why so called ; the true meaning thereof in the law. caria , where scituate ; the inhabitants thereof anciently reputed lords of the sea. , carpathean sea , where scituate . carthage ; when and how demolished . carthaginians ; the art of navigation anciently ascribed to them . ibid. casting goods over board ; to be done at the skippers discretion . case of baxter against hopes , in brownl . rep. . part . case of bridgman , in hob. reports . case of bright against couper . case of admiral court , in brownl . reports , part . . case of don diego serviento de acuna , against jolliffe and tucker , in hob. rep. , case of sir hen. constable , in coke's reports . case of the french man , against the vendee of a ship . trin. . car. in bro. reports . case of goodwyn against tompkins , in noy's rep. case of dr. james , in hob. rep. case of jennings against audley , in br. reports , part . . case of sir julius caesar , in leonard's rep. case of leigh against burley , in owen's rep. case of mariners against jones , in whinch . rep. case of the merchants , mich. . jac. in br. rep. part . . case of oyles against marshal , in the mod. rep. case of palmer against pope , in hob. rep. , , case of record against jobson , in noy's rep. case of susans against turner , in noy's rep. , case of weston , in brownl . rep. cases of admiral jurisdiction resolved . cro. rep. , to cestertius , how much in value . chanaan ; so called by the hebrews ; by the greeks , phaenicia . charondas , law-giver to the thurians . charter-parties , properly cognizable in the admiralty . , to civil law , properly so called , what ; and when first introduced . colossus , one of the worlds seven wonders , where scituate . concurrency of jurisdictions . constantinople , famous of old for sea-laws . corynth ; anciently reputed lord of the sea , and by some supposed to have invented the art of navigation . cyclades isles ; where scituate . ibid. cymon , another admiral of the athenians . clergy , anciently to be advised with in case of treasure-trove . collision of one ship against another , and damage thereby ; the law in that case . , custome in sea-matters , to be observed . , , cutting of masts and cables in a storm ; what the law is in that case . d. damage , happening to goods at sea ; what the law is in that case . debate or difference between the skipper , and his mariners ; the law in that case . decearchus , his memorable sea-commission . , demourage , when to be paid by the merchant . demosthenes , another admiral of the athenians . deportatio , what ; and how it differs from relegatio . , derelicts ; in what case goods may properly be said to be derelict . daedalus ; what his wings were made of . , dominion of the sea , the right and antiquity thereof in the kings of great brittain . , to , & , dominion of the sea in general ; the original thereof . don diego serviento de acuna , his case against jolliff and tucker . , draco , law-giver to the athenians . drungarius & drungarius magnus , the admirals style in the eastern empire ; whence so called . e. edgar ; his marine style and title in all his charters . egyptians , the strange way of their navigation . emancipation , what ; and how it differs fr●m manumission . erythraeum mare , where that is ; and why so called . etheldred , his incomparable navy for the guard of the brittish seas .. europe , by whom first peopled . execution , or the coercive power the life of the law , and a right of the jurisdiction of the admiralty . extra regnum , or things done out of the kingdome , where or in what place tryable . , to f. fishes royal , to whom they belong . page fictions legal , what they are ; the several kinds thereof ; two capital instances of such in the law ; and how the practice of fictions may be said to be prejudicial to the admiralty . , to fierro , where scituate ; the strange tree that grows on that island . fraight , how to be apportioned when the voyage is imperfect . france , when first an admiral there . , g. genuises , famous for their maritime laws . gold , silver , precious stones , and the like , found in , on , or nigh the sea , in what cases may be kept by the finder , and in what cases not . , , goods found , that belonged to shipping , how they were to be disposed of in ancient times . , goods cast over board to lighten the ship , no derclict . , graecians , by whom they were first civilized . , h. hannibal , high admiral of the carthaginians . hanno & hamilco , famous for their naval discoveries . ibid. hercules pillars ; why the motto of non ultra engraven thereon . i. iennings case against audley . imperium , what ; the several degrees thereof in the law. , to impleaders of marine causes in a wrong jurisdiction punishable by the admiralty . , interdictum at the civil law , how it differs from prohibitio at the common law. joh. rex ; his ordinance made at hastings touching the soveraignty of the kings of england in the brittish seas . ionean sea ; where , and why so called . jurisdiction ; the etymon of the word , with the several kinds and degrees thereof in law. , to jurisdiction of the admiralty of england , the great antiquity thereof . , to jus gentium , the original thereof . jus humanum & civile , what ; and how introduced . just ; the divers acceptations of that word in law , as in reference to fictions . l. lading , or ships lading , in part disposed to supply the ships occasions ; the law in that cas● . pag. , law , the true definition thereof . the law of nature ; of nations ; the civil law ; the law sacerdotal , and canon . , to law of the sea , or law admiral , the great antiquity thereof . laws imperial , their use and exeellency above other laws in most kingdomes . , laws of the heathens , fathered on their heathenish idols . leigh's case against burley . lycurgus , legislator to the lacedemonians . lye ; the lye given to or by either the skipper or mariners ; the ancient penalty in that case . m. mahomet , law-giver to the arabians . manumission , what ; and how it differs from emancipation . marcelleis , famous for marine constitutions . mariner's case against jones . mariners , their duty in case of disaster to the vessel . not to desert the ship till the voyage be ended . not to go out of the ship without the skippers leave . in what case they may . if hurt or wounded , in what case not to be healed at the ships charge . , messine , where scituate ; the people thereof famous for their sea-laws . minos , he gave laws to the cretians . minotauri fabula , why so called . murderers of ship-broken men , their strange and cruel punishment . n. names of ships and skippers to be engraven on the buoyes of the anchors . navigation , the antiquity thereof ; to whom originally ascribed . , to nearchus , admiral to alex. the great . neptune , why feigned to be god of the sea. niceas , another admiral to the athenians . noah , how long since he arrived at ararat . north-starre , its use in navigation , by whom first invented . numa , law-giver to the romans . o. oleron , where scituate ; most famous for their sea-laws and maritime constitutions ; when and by whom first published . pag. , onesicratus , admiral to the assyrians . p. patroclus , admiral to the syrians . palmer's case against pope . , , partnership in a fishing design , the law in that case . paeni , or carthaginians , originally phoeni or phoenicians . phoenicia , where scituate ; the people thereof supposed to be the first mariners , merchants , and astronomers ; as also the first inventors of arithmetick , and the art of navigation . , pilots ; the punishment of an unskilful pilot in case of damage thereby . the punishment of treacherous pilots . , the strange punishment of their abettors . pirates , their punishment . , who supposed to be the first that purged the seas of such vermin . pisa , the inhabitants thereof famous for their maritime laws . poles , who first descryed the two poles . pericles , another admiral of the athenians . pontus , the reason why the sea is so called . port and port-town , how they differ . , prohibition , what ; the original thereof ; with its several kinds , causes and effects in law. , to properties created at sea , & super altum mare , whether cognizable in the admiralty . r. red sea , who there first invented ships and sailed thereon ; and why called erithraeum mare . relegatio , what ; how it differs from deportatio . , re●●er crimbald , the french admiral , his 〈◊〉 and illegal attempts on the brittish seas , in derogation of the soveraignty of england . , rhodes , where scituate ; their precedency to all other nations in marine constitutions . rhodian law generally referred to by the emperours in decision of maritime controversies . , , richard the first , the first that published the sea-laws of oleron , and when . ridley's opinion touching . prohibitions . , roman admirals . , s. sales of ship or lading , or any part of either , made by skippers or mariners without special procuration , in what cases good , or not good in law. , , , salvage , how to be paid and satisfied . , sarazen admirals . , seleucidae over the syrian monarchy , why so called . ship forced from her cables and anchors , the law in that case . , not to stay for a sick mariner . when broken , the mariners not to be hindred from saving the goods , in king edgar's time sail for the guard of the brittish seas . sick mariners how to be provided for . and what wages such may challenge . skipper's duty before he leaves a port. how to finish his voyage , in case of some disaster to his own ship . slings for hoysing of goods . , if damage happen thereby , who must make it good . solon , legislator to the athenians . soveraignty of the brittish seas publickly acknowledged by the agents and procurators of no less then ten neighbour-nations , kingdomes and states at once , to be de jure in the monarch of great brittain . striking a ship-board , whether by the skipper or mariners ; the law in that case . statutes , r. . cap. . & r. . cap. . & h. . cap. . & el. cap. . touching the jurisdiction of the admialty . , to super altum mare , properly within the jurisdiction of the admiralty . , to supplicatio , what it imports in law. surmizes , suppositions , or suggestions of places beyond sea , to be locally as within the body of some county within the realm ; variety of opinions touching the same in the common law-books . susans case against turner . , , sydonians , famous and able mariners . , t. tackle , ship-tackle , pawned , pledged , or hypothecated for the ships use in case of necessity , good . taurus , high admiral to minos , king of crete . theft committed at wrecks , the penalty thereof . , tortura , the different respects and acceptations thereof in construction of law. treasure trove , the old law in that case . trismegister , legislator of the egyptians . tyrus , the maritime metropolis of phoenicia ; the costly materials of her navy ; her prosperity and misery . tyrians , famous and able mariners . , v. venetians , famous for their sea-laws , and maritime ordinances . w. vvages of mariners to be paid according to contract . if deceased in the voyage , to whom payable . weston's case . wounded mariners , the law in that case . wreck ; the ancient provisional laws of oleron in that case . . , z. zoroaster , the bractians and persians law-giver . finis . notes, typically marginal, from the original text notes for div a -e de benefic . . angel. in rub. d. de jurisdic . om . judic . notes for div a -e terent. in prolog . enuchi . a senec. lib. de morib . b l. . l. est receptum . ff . de jurisd . om . jud. & l. privatorum . cod. de jurisd . c natta . cons . . nu . . & . & joach . steph. de jurisd . c. . nu . . d bald. cons . . lib. . e car. tap. in ff . de const . prin. cap. . nu . . & marant . distinct . nu . . f l. . cod. de jurisdict . g l. ult . cod. ibid. h l. . cum seq . de jurisd . i alex. tot . tit . de offic. juridic . l. penult . ff . de pet●t . haeredit . & l. . cod. ubi de crim ●gi . oport . l l. . ubi coeptum . ff . de judic . m gail . l. . obs . . nu . . & obs . . nu . . n l. tune autem . . ff . de re judic . o l. nemo . cod. de jurisd . om . jud. p l. unic . cod. de nund . & alceat , in l. mercis . & l. mercis . de verb. signif . q accurs . & alii in l. . §. mercis . st . de trib. r bart. in rub. cod. de navic . s c. ejiciens . dist . t c. in civitate . &c. consuluit . extra . de usu . u paul. de castr . in l. in eum . ff . de instit . w l. moventium , ff . de verb. sign . x c. significavit . extra . de judaeis , ubi abbas . y decii confil . . nu . . & consil . nu . . z ] bald. in auth. dos data . cod. de donat. ant . nupt. a §. commodum . instit . de interdict . b l. intra . §. vendentibus . ff . de minor . c bald. in l. . cod. ut nemin . liceat sine jud. autoritat . the skipper or master is a mariner , though no common mariner . d l. cum in debito . ff . de probat . * l. ● . cod. de navib . non excusand . e l. praetor ●it , in prin . ff . de injur . f l. non omne , ff . de stat. libe . & l. is , ff . de act. & oblig . g l. consensu . cod. de r● h l. . §. igitur , ff . de exerc . i aret. post joan. fab. in §. item exercitor , nu . . instit . de oblig . quae ex quasi delict . k bart. & paul. in l. haec distinctio . §. cum fundum , ff . locat . l l. non inter , ff . de usu & habi . m l. inter stipulantem , in §. sacram. ff . de ver. oblig . & in l. quod in §. fin . ff . de leg. & in l. qui res , §. aream , ff . de solut. & in l. quid tamen , in §. in navis . ff . quib. mod . usufr . ami● . n l. mutius , ff . de rei vendic . o ff . lib. . tit . . leg. . p l. si ex meis , ff . de acq . rer . dom . & l. si convenerit , §. si quis sic , ff . de pign . act . q l. fin . ff . de fund . instruct . & l. scapham , ff . de evict . & l. marcellus , in §. armamenta , ff . de rei vendicat . r bald. in l. cum proponus . cod. de nautic . soenore . nu . . s l. . ff . si quo ad . pau . fe . di . t jas . in consil . . nomine magnifici , &c. vol. . u bald. paul. & sal. in l. autem navigiae . cod. de furt . w bal. in l. furt . cod. de furt . x l. in delictis . §. si extraneus . ff . de noxa . & angel . in l. sive manifestus , in §. tam diu , ff . de com. fur . y l. mulier . ff . de captiv . z l. fin . §. si propter necessitatem . ff . de public . & l. caesar . ff . de public . wearing apparel and victuals for the ships use , pays no fraight . ff . naut . caupo . stab . &c. l. . §. quamcunque rem . a l. si quis . cod. de instit . & substit . b arg. l. seio . ff . de annuis legatis . & l. illis libertis . in fin . ff de condit . & demon . ar● . . c l. qui operas . & l. si aedes . §. cum quidam . & §. fin . ff . locati . d l. sed & addes . in §. si quis mulierem . ff . locat . e paul. in l. si uno . in §. cum quidam . & §. ubicunque ff . locat . & sign . de homod . consil . . nu . . f l. penult . §. novem . ff . locat . g bald. in l. certi juris . in . q. in verb. quid ergo . cod. locat . h l. qui romae . §. callimachus . ff . de verb. obl. i ang. alex. & jason in dict . §. callimachus . k l. relegati . st . de poenis . & l. ult . ff . de sep. viol. l l. . §. si quis in mari . ff . ne quid in loc . publ . & §. & quidem . inst . de rerum . divi . & l. uni . ff . ut in flum . pub . navigate licear . m angel. consil . . & veronensis . n bellissime . seld. de mar. claus . o ff . ad leg. rhod. de jactu . l. . §. si navis à piratis . p dict. §. si navis à piratis . & ibid. juan . de heuia lib. . p. . cur. philae . naufragio . . nu . . q leg. wisbicens . art . , , , . r ff . ad leg. rhod. l. . §. si con●c●vatis . the persons of m●n , wearing appa el , and the ships provisions are exempt from contribution . some are of opinion that the goods saved are to be valued as they may be sold for , but the goods lost as they were bought . goods cast overboard to lighten the ship makes no der●lict , §. ult . inst . de rer. divis . & l. . §. ult . de acqrer . dom . s ff . ibid. l. navis . §. cum autem . t lusi sernus . . §. & si. . ad leg. aquil. v l. navis . ff . ad. leg. rhod. de jactu . demosthen . in orat . in aristogit . w grot. de jur . bel. lib. . cap. . nu . . x ne alius pro alterius debito & paena teneatur . auth. & omnino , ne uxor marito c. l. providendum . de decurio . li● . . c. titu . ne fil . pro patre . auth. imo . c. de acti . cum similib . y c. si sententiae . c. . de sent. excom . in . constir . z l. qui restituere . de rei vindicat . hom. iliad . . gregor . lib. . notes for div a -e a lupus de magistr . paul. emil. hist . de fran. guaguin . & morisor . lib. . c. . de orbe maritimo . b morisot . ib. lib. . cap. . c spelm. gloss . verb. admiral . d petr. cothereau . in suo schedul . magistr . civil . tit . de praesibus provin . & purpur . in l. . col . . . exemp . dig. de offic. ejus cui mandata , &c. cassanae in catalog . glor. mund. part . . consid . . e morisot . orb. marit . lib. . cap. . anno . in h. . matth. paris , viz. in the wars between the christians and the sarazens in the land of promise , that john k. of hierusalem with christs militia castellanum ab equo stravit , & admiraldum unum . admiraldum capio pro centurione sive capitanio , says the glossar . on that word , in that place . and the said matth. par. anno . in h. . viz. potestas januae , quem admiratum vocant . the gloss . there , viz. ille potestas , podesta , sive praetor urbanus , nunc dierum admirallii sive thalassia●chae munere fungebatur . f this rob. the monk was one of k. johns three emissaries to miramulalim k. of morocco , to signifie his pleasure to him , how ready he was to resign his kingdome . g fragm . hist . aquit . h leon. marsic . in casinens . hist . lib. . cap. . about anno . when k. john sent thomas her●inton , ralph nicholson , and robert the monk to the k. of morocco , we read misir nuncios ad admirallium murmelium , regem magnum aphricae , marrochiae , & hispaniae , quem vulgus miramumelinum vocat . matth. par. in johannem reg. ita , sed satis corrupte , regem moroccae indigitarunt nostrates . sed corruptius adhuc roger. hovedin . almiramisi sive almiramimoli . hovedin . pars poster . in r. . pag. . drungarius magn. fragm . ascripr . polybio . i matth. paris in r. . circa dies istos rex de maroch . potentissimus , quem mirabilem mundi vulgus , vel quod melius , admiralium murmulin , id est , admiralium bellicosum & victoriosum nominavit . et an. . otho . . imp. german . cognomin . otho rufus , iste cognominabatur mirabilia mundi . sif●rid . epit. lib. . p. . k glossar . in matth. paris in verb. admiral . notes for div a -e gen. . . gen. . . & . . & . , . the antiquity of navigation . a fazel . li. . decad. . rer. sicul. & morisot . hist . orb. marit . l. . c. . b sabellic . aenead . . l. . & . plutarch . in theseo . c thucid. l. . c. . d moris . ubi supra . e greg. gemist . lib. . rer. graec. the antiquity of the sea-laws , or laws of the admiralty . f leg. rhod. in leunela . jus graec. rom. tom. . g gloss . mag . in l. . ff . ad leg. rhod. & in decre . dist . . c. rhodiae . h l. depraedatio . ff . ad leg. rhod. & le. unclavius . ubi supra , in leg. rhod. i leuncla . in prin . ll. rhod. tibullus . l herodot . terpsi . m diodor. l. . c. . n morisor . in orb. marit . l. . c. . o strabo l. . p andr. masius in jos . . q dionys . afric . in vers . ezek. cap. . . cap. . v. . cap. . ver . , to . r herodot . l. . & plin. l. . c. . & . & athenaeus deipn . l. . s morisot . ubi supra . the egpptians used to coast the shores of the red sea upon rafts , divided by king erythrus . t plin. nat. hist . l. . u dom. nig. w ramus . x diodor. sicul. l. . c. . gen. chron. & dom. nig. y morisot . orb. marit . l. . cap. . & polyb. plin. aurel. victor . livie , sabel . ennead . val. max. sigon . lucius florus , & alii . dan. . , , . vid. annot. in dan. per theolog . conv. edit . an . . the readers of the lecture for the art of navigation at sivil have published divers treatises concerning marine causes , viz. hieronymo de chavez . alonzo de chavez , & rodorigo zamerano . z consul . del mare . a thucid. libanius , cels . rhod. . c. . b herod . . thucid. . & demosth . pro clesiph . c moris . orb. mar. l. . c. . ubi zonarus , codinus , bulenger . imp. rom. l. . c. . d vopiscus . e curopalates in official . aulae constant . vixit an . cir . . f huntindon . qui sub steph. reg. . floruit & sigeberti auctuar . g rupertus aliis robertus monachus vixit an. . hist . suae de bello saracenico , l. . these are the same twelve amiralios mentioned by huntindon . h robertus , ibid. l. . in prin . & turpinus archiep. qui floruit an . . lib. de gest . caroli mag. cap. . [ si illus sit ] says the learned sir h. sp. in his day , and we in ours . i auth. fra● . hist . aquitan . k monstreletus . l sigebert . in suis chron. an . . chro. de flandr . c. . & . m theophanes . in chronico , à moursio citatus . n turpin . hist . de charlemaigne , cap. . & . o l. . depr●catio , di● . ●d leg rhod. de jact● . p c. rhodiae , . distinct . q aul. gell. l. . noct. attic . cap. . & fred. pruckman in sect . soluta potestas , cap. . nu . . usque ad nu . . p. . comes maris . r morisot . orb. mar. l. . c. . in prin . s idem l. . c. . in prin . t bernard . girard . de stat. & succes . rer . galliae l. . . calais . admirallus seu comes maris in gallia , post conestabilem praefertur . an. cir . . an. cir . . notes for div a -e * gerard. an●iens . archiepiscop . bernard . baon . episc . robertus de sabul . richardus de canvil . williel . de forz de ulerum ( opinatur ) oleron . a spelm. glos . ex hovendeno . an. domini . an. domini . an. domini . an. domini . b spelm. glossar . verb. admiralius . in temp . w. . odo admiralius . ita spelm. gloss . de admiralio gall. an. . c edessa , a town in mesopotamia , anciently called antioch , one side of euphrates . edessa , macedoniae urbs in aemathia regione . ortelii thesaur . geogra . seldeni mar. claus . seu de domin . maris , & boroughs soveraign . of the seas . d spelm. consil . p. . leges ecclesiasticae hoeli dha ( id est , boni ) regis seu principis totius walliae , è secularibus suis mss. decerptae , ci● . an . . malmesb. de regib . l. . c. ▪ marthusius archiparata ( id est , princeps nautarum ) ita spelm. gloss . rex angliae soli & sali orbis brittanici dominus . bald. consil . . & tusch . concl. . verb. m●●e . f larreae decis . granat . disp . . nu . . & leg. unic . fect . sed neque . cod . de vet . jur . enucleando . g tearms of law , verb. admiral . h ibid. i coke part . . instit . l. . c. . sect. . & lib. . cap. . sect. . k caes . com. de bel. gall. l. . fo . . l ibid. l. . fo . . m ex charta fundationis eccesiae cathed . wigor . cit . per sir tho. boroughs in his soveraignty of the british seas , p● . . n ranulphus cestrensis . in temp. h. . rich. de lucy had maritimam angliae , & tho. moleton was capit . & custos m●ris ▪ spelm. glos . record in the tower of london . jurisdictionem cujusvis judicis impediens ab co puniri potest , & coerceri , licet ejus subditi non sint . bart. & alex. in l. omnibus . sect. is videtur . d. si quis jus dic . non obtemp . & larrea . decis . gran. disput . . nu . . jurisdictione concessa , censetur concessum imperium mistum , h. e. potestas exequendi . quoniam ca concessa , censentur etiam tradita ea sine quibus exerceri non potest . carbo de legib. lib. . disp . . pag. . lit. c. where the place is the foundation , it is more then a bare circumstance . it may not be hence imagined but that it is as legal at common law to surmise in a declaration an act possibly done at sea to be indeed done at land : as at the admiralty , to alledge in a libel an act possibly done at land , to be indeed done at sea , vel infra jurisdictionem maritimam . a concurrency of jurisdiction seems to imbly a divisibility thereof . but jurisdictio est quid incorporale , nec divisionem recipit nec patitur . dur. spec. l. . de praescript . nu . . car. richlieu . purch . notes for div a -e a peregrin . de jur . fisc . lib. . tit . . nu . . b l. deprecatio , dig. ad leg. rhod. de jact . c bart. in l. . par. de quare . d. de postul . & in l. infamem . d. de public . judic . d bald. consil . num . e ibid. consil . . nu . . f andr. iser . & afflict . in cap. . de vassal . decrept . aetat . g jason jac. de are. & bald. in l. . ff . de rer. devis . h glos . in verb. criminalibus , in tit . de pace . constan . bald. in auth. cassa . cod. de sacr. sanct. eccl. alex. con● . . col . . cagnol . in l. . de orig . jur . nu . li consoli del mare . ten days by the law. fifteen days by the stat. whales , sturgeons , porpoises , bailines , dolphins , and all fishes strange for bulk , rarity , or quality , are called fishes royal , and belong to the king. bald. ad leg. d. de rer. divi● . notes for div a -e a val. forst . hist . jur. civil . l. . c. . b ibid. c. . c jason . in ff . de jurisdict . om. jud. rub. nu . . de legibu● l. . de legibus . l. in t . cler. c. de sum. trin. cic. phil. . l. . ff . de legib . coel. rhod. l. . c. . plat. in min. rom. . , tusc . . . . . ●●mnes pop . ●f . de just . & ●ure . gen. . d in arb. jurisd . lit . a. e inst . jur . civil . in proem . par. quorum . f ferrand . l. . explicat . in lib. . jurisdict . g l. potestas . de verb. sig. h l. . par. hujus , ff . de just . i l. munerum . par. judicandi , ff . de muneribus . k l. placui● . cod. de judiciis . l l. . ff . de jurisd . & jas . in rub. & l. nu . . ibid. m bart. in arb. jurisd . lit . c. n corvin . de jurisd . & fulgos , l. . de jurisd . nu . . o bart. ubi supra . p bart. ib. . q l. . ff . de const . princip . r cacialup . in l. imperium , ff . de jurisd . om . jud. s jun. & alii in c. cum pub. tabellio , de fin . just . & bald. in tit . de jurisd . om . jud. . t bart. ubi supra , lit . c. u bart. de jurisd . nu . . . w ibid. nu . . x jas . in l. . ff . de jurisd . nu . . in prin . y cyn. in l. si quis non dicā . q. . c. de episc . & cler. & in l. transigere , q. . c. de transact . z jas . ubi sup . . a bart. & jas . ibid. & l. nulli , c. de sent . king. c. . v. , , &c. b l. si quid erit , ff . de offic . procons . . c bart. ibid. & l. magistratib . ff . de jurisd . d bart. ibid. e l. fin . c. de modo mulct . & l. . ff . si quis jus dicen . ō . obtemp . & l. . c. de sportul . imperium mixtum . f bart. ibid. nu . . g in l. imperium , nu . . ff . de jurisd . om . jud. h l. . c. de his qui veniam aetatis impet . i l. . ff . de jurisd . k bart. ibid. nu . . l l. . c. de his qui ven . aetat . impet . m caius in l. . tit . de adop . n ibid. o auth. quibus mod . nat. effic . legit . par. illud . p flet. lib. . cap. . par. idem emancipat . & cowel . instit . jur . angl. l. . c. . par. . q l. . c. de sen . praef. & auth. quae supplicatio . c. de praecib . imper . off. & barr. ubi sup . nu . . & in arb. jurisd . lit . m. r c. ex literis . de integ . restitut . s l. . ff . de offic. praef. praetor . t l. ea quae par. magistratib . ff . ad municipalem . u bart. fulgos , & alii ubi supra . w fulgos , in l. imperium . ff . de jurisd . om . jud . nu . . x casus in glos . in l. . ff . de carbon . edict . y bart. in l. imperium . ff . de jurisd . om . jud . nu . . z salyc . & rubr. l. . de pedan . judic . jurisdictio simplex . a barr. ubi sup . nu . . jas . ubi sup . nu . . fulg. de jurisd . om . jud . nu . . b jas . in l. imperium , ff . de jurisd . om . jud . c rub. in ff . de lib. caus . & l. . § . ff . sol. ma rim . & l. . § liberali , st . de receptis , qui arb . receper . d l. placet . c. de pedan . jud. e rub. & glos . de lib. caus . & fulg. in l. imperium , ff . de jurisd . nu . . f defin. jur. nu . . ff . de jurisd . & c. ex ratione . de appell . & jason . sup . nu . . g fulg. ubi sup . h rub. & glos . min. ff . deliber . caus . & bart. ubi sup . nu . . i bart. jas . & fulg. ubi sup . nu . . k l. quicunque c. de ser. fug . & l. divus , ff . de injuriis . l desin . jurisd . nu . . ff . de jurisd . m fulg. ubi sup . nu . . n dd. ib. o calvin . ver . aureus . p tacit. l. . de othone . q godw. rom. hist . li. . sect. . cap. . r bart. ubi sup . nu . . & jas . ibid. nu . . s bart. ibid. t fulg. ubi sup . nu . . u jas . ib. nu . . w l. . § fin . ff . de jur , elib. d x bart. in l. interdum . § qui furem , ff . de furt. y anth. de test . § si vero ignoti , col . . z ang. & jason . in l. imperium , ff . de jurisd . a panor . in cap. cum contingat . col . . de foro competent . b alb. bald. sal. alex. jas . in dict . imperium . c definit . jurisd . nu . ult . ff . de jurisd . d l. . ff . de offic. procons . e spec. de jurisd . in prin . f bart. in l. imperium . ff . de jurisd . om . jud. nu . . g l. si convenerit . ff . eod . & l. sed & si . ff . de precario . h omphal . l. . civil . polit. cap. . nu . . & l. lucio . ff . de aqu. quot . & aestiv . & ang. in l. . § ex his . ff . de verb. sig. i car. tap. in ff . de const . prin. cap. . nu . . & marant . distinct . nu . . k auth. quae sunt regalia . coll. . l l. . ff . ubi sup . & l. . § cum urbem . ff . de off●c . praes . urb. & l. . cod. eod . tit . m tap. ubi supra nu . . notes for div a -e a l. . § interdictum , & l. . ff . de interdict ▪ & § prohibitoria . instit . cod . tit . b boer . decis . . nu . . & ibi faber . in l. ante fin . cod. de off. praef. urb. per tex . in c. transmissa . de foro compet . & paris de put. in syndicat . tit. de excess . baron . cap. ult . & ang. in l. haeredi . de usu fruct . legat . ut voluit saldus in prooem . . lib. decret . colum . . c boer . decis . . nu . . & bar. & alex. in l. omnibus . § is videtur . ff . si quis jus dic . non obtemp . sir tho. ridleys view of the civil and ecclesiastical law , in part . . cap. . sect . . fitzh . n. b. verb. prohibit . d terms of law , verb. prohibit . e d. cowel interp. ver . prohibitio . it may not be hence inferred , that what seems to cease of use in one respect , may not remain of use in another ; as indeed this is , in conservation not derogation of jurisdictions ; and for prevention of trials coram non judice competente , by an expedient of law , whereby the gognizance of a cause may not be drawn from its proper jurisdiction ad aliud examen . f num. . . & kin. . . nehushtan , h. e. brass , or brazen , or a piece os brass . this implyes not , but that prohibitions are still of necessary use , where inferiour jurisdictions meddle with matters which do not concern them , and wherein they are incompetent . fitzh . n. b. fo . . cowel interp. verb. prohibit . ridley view of the civil and ecclesiastical law , part . . cap. . sect . . h ibid. though by warrant from the proverb , losers have leave to speak ; yet in case of interest , such as cannot hold their own , may hold their peace . this hinders not , but that a thing really done super altum mare , ( though not yet so in proof ) may be surmized or suggested to be done at land , in order only to bring it to issue , whether a prohibition lyes in the case . this is but the law of one jurisdiction without any derogation of another . i cok. inst . l. . c. . sect . . in sin . k fitzh . n. b. tit . prohibitio . l fitzh . ibid. notes for div a -e a schard . ver . fictio . b cas . tract . dialect . . part . cap. , & . vid. larrea . decis . granar . disp . . nu . . semper fictio , licet veritati contraria , tamen veritatem imitatur . § minorem . de adopr . & l. si filius , . d. si cer. per. & l. triennio . d. de stat. liber . et solum extenditur ad id quod per veritatem & rerum naturam fieri potest . glos . in l. . d. pro socio , & curr . l. . conject . ad fratrem , cap. . & oswald . l. . ad donel. cap . lit . a. c bart. in l. si quis pro emptore . d. de usucapionib . d l. sive possidetis , cod. de probat . & cyn. ibid. & l. non est verisimile . d. quod metus causa . e ibid. in glos . mag . in l. non est verisim . f gothof . ad rub. d. de probat . g bart. ibid. nu . . h l. adoptio . ff . de adopt . i le. cornelia . ff . de testam . & l. cornel . ff . de vulg. substi● . k l. retro . & l. in bello . § . & l. bona . ff . de capt. & § . d. quibus mod . jus . patr . solvit . l l. absent● , ff . de verb. sign . m l. ibid. glos . mag . n l. qui in utero , & l. pen. ff . de stat . hom . o ff . ad leg. aquil. & rub. ibid. & l. si ex causa . d. pro socio . p l. quia licet ff . pro socio . q l. . § si filius . ff . de suis & legitimis , & l. , , . cod. cod . r § sed si in bello . inst . de excusat . tutor . notes for div a -e noy rep. m. eliz. c. b. this may be but a surmize in one jurisdiction for a supposition in another , as an expedient whereby to discover unto which jurisdiction the case doth properly belong . a coke inst . part . . cap. . this is meant when the thing is so in truth and in fact , as well as supposed . b bart. in ● . si is qui pro emptore . d. de usucap . c in lib. nig. adm. fol. . d brownl . rep. part . . mich. jac. e littl. l. . c. . sect . . f hob. rep. in cas . palmer vers . pope . g leonard rep. eliz. in sir jul. caes . case , in b. r. h brownl . rep. par. . case bright vers . couper . trin. jac. rot. . in com. plac. i brownl . rep. par. . westons case . mich. jac. . in b. r. k trin. char. in b. r. grand abridgment of the law. verb. admiral . res quae intra praesidia perductae nondum sunt , quanquam ab hostibus occupatae , dominum non mutarunt ex gentium jure . gror. de ●ur . bel. l. . c. . l littl. l. . c. . ●ect . . m coke inst . par. . c. . n cro. rep. in resol . upon the cases of the admiral jurisdiction . hill. char. notes for div a -e o coke inst . par . . c. . p hob. rep. in bridgmans case . q croke rep. hil. char. r littlet . l. . c. . sect . . s l. cum hi § si cum lis . d. de transact . t coke par . . instit . l. . c. . sect , . u littl. l. . c. . sect . . brownl . rep. . admiral court , ibi in haec verba . note ( says the report ) that it was urged by haughton , that the intent of the statute of r. . cap. . was not to inhibit the admiral court , to hold plea of any thing made beyond sea , but only of things made within the realm , which pertains to the common law , and is not in prejudice of the king or common law , if he hold plea over the sea ; and that this was the intent of the statute , appears by the preamble . w coke par . . instit . c. . x coke ibid. cap. . y cod. ms. de adm. angl. vulgo vocar . lib. nig. adm. in fo . . z hill. char. a hob. rep. case of don diego serviento de acuna , against jolliff and tucker . b hob. rep. mich. jac. case palmer against pope . morisot . lib. . cap. . port-town ] the lord coke in par . . instit . cap. . in his answ . there to the fourth objection , makes mention thereof by the name of port-town , as infra corpus comitatus . the port of gado is part of the sea , the port-town of gado is upon the continent of barbary . c l. . d. de verb. sig. thamesim , prolemaeus jamissam , dio himensam , vocat . an testamentum factum in portu cujusdam civitatis soldani , dicatur factum in terris-soldani . bald. in rub. d. de rer. divis . in . col. in prin . dicit , quod tempore suo hoc fuit revocatum in dubium , & dicatur , quod non , quia portus est publicus , & ita christianorum , sicut sarecenorum . nam hoc est introductum jure gentium , vid. barth . cepol . de servit . rust . praed . cap. . de portu . nu . . which could not be assirmed of a ●ort-town ; this plainly shews a wide difference between a port and a port-town , and proves portus to be locus publicus , uti pars oceani . yet in the case of don diego serviento de acuna , against jolliff and tucker in hob. rep. it is said , that no port is part of the sea , but of the continent . so says that report . but may we not distinguish between portum naturalem & portum artificialem . portum naturalem 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , manu & artificio factun 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , graeci vocant . morisot . histor . orb. marit . lib. . cap. . d noys rep. m. , el. case , susans against turner . a surmize at common law may be as legally qualified to call the right of cognizance into question , as an allegation at th● civil law to lay a soundation for a definitive sentence , and possibly in a case whereof it hath no right to determine ; for neither a surmize in the one , nor an allegation in the other , are more then suppositions , till reallized by proof . e brownl . rep. part . . in cas . jennings against audley , mich. . jac. in com. ban. f brownl . rep. part . . ibid. in cas . baxter against hopes . g brownl . rep. par . . mich. . jac. in ban. reg. h croke rep. hil. char. notes for div a -e i coke on littl. par . . instit . lib. . c●p . sect . . mr. seld. in suo mar. claus . l. . cap. . styles the judge of the admiralty , summae cutiae regiae admiralitatis judicem . k hil. char. . febr. . l stat. r. . cap. . m cowels interpreter , verb. record . n fit●h . n. b. writ of errour . o cowel , ubi supra . p brook tit . record . q cowel , ubi supra . ubi brook tit . bastardy . fleta li. . cap. , , , . lamb. eirenareha , lib. . cap. . & glanvile , lib. . cap. , . the register orig. fol. . b. bracton lib. . tract . . cap. . nu . . britton , cap. , , , , & . doct. & stud. lib. . cap. . & cosins apol. par . . cap. . r glanvil , lib. . c. . britton , cap. . & cowel , verb. record . s noys rep. cas . reord against cornel . jobson . t hob. rep. in dr. james case . u moder . rep. trin. . in banc. reg. w cod. ms. de adm. viz. lib. nig. adm. fol. . & ibid. in art. . artic. inquisit . adm. citat . per d. seld. in suo mare clauso , lib. . &c. . x sir jo. davies . jus imponendi vectigalia , c. . y idem . jus imp . vect . c. . notes for div a -e a coke part. instit . c. . in the answ . to the fourth objection . b croke rep. hill. . car. resolution upon the cases of admiral jurisdiction . c coke ibid. in the answ . to the second objection . d noy rep. in cas . susans against turner . q. whether in matters of dubiovs jurisdiction , meerly depending upon future contingency of proof , a bare surmize at common law ; may not as rationally expect the relief of a prohibition , as a naked allegation at civil law the count●nance of a litis contestation . so that the law is good , if it be used lawfully . therefore to prevent this inconvenience , and obviate such objections as these ; before any prohibition doth actually issue upon such surmizes , the courts of westminster have ever used to prefix a day wherein to shew cause , if any , why a prohibition should not be granted . so that although there be a surmize , yet there is no surprize in the case . e coke , ubi supra . mich. h. . rot. . in banc. hill. . ph. & m. rot. . cr. hil. el. rot. . cr. the common law in some cases doth take notice of conjunct : persona , but not as does the civil law. f winch rep. easter term g coke par . . instit . c. . answ to the first object . h ibid. answ . to the sixth object . i croke rep. hil. car. resolution upon the cases of admiral jurisdiction . subscribed feb. . by all the judges of both benches . beneath the bridges ] so the expos . terms of the law , verb. admiral . k hob. rep. case . palmer versus pope . mich. jac. l owen rep. in casu leigh against burley . mich. jac. l cro. rep. hil. car. . m noy rep. in cas . goodwin against tompkins . notes for div a -e a selden , de mar. claus . lib. . cap. . b ibid. in fascic . de superioriatate maris , in arce lond. & coke , de antiquit . admiral . in par. . instit . cap. . c coke par . . instit . cap. . rot. in archivis in turri lond. de superioritate mar. angl. & jure officii admiral . & in alio rot. de articulis super quib . consult . anno ed. . d cowel , interp . verb. admiral . e terms of law , verb. admiral . f doct. & stud. dialogue vel lib. . c. . g seld. mar. claus . lib. . cap. . h temp. ed. . fitzh . tit . avowry . & placit . . & hen. . rot . . devon . ●tim sussex . hen. . rot . , & trin. ed. . in brevib . reg. inter pilke & venore , quae in arcis londin . archiv . ejusmodi item sunt alia . i ms. fo . . k brownl . rep. par. . admiral court-case . l caepol . de servit . rust . cap. . nu . . & bald. in rub. de r●r . divis . m cowel interp . verb. admiral . n coke rep. in cas . sir hen. constable . eliz. cap. . cokes instit . par . . cap. . o croke rep. hil. . car. . resolution upon cases admirall . notes for div a -e skippers sale , without speciall procuration , not good . ship-tackle pawned for ship-necessaries , good . notes for div a -e skipper not to quit a port without advice of his mariners . notes for div a -e mariners in case of that like wreck , to save what may be saved . skippers sale , in case of disaster , not good without speciall procuration . notes for div a -e part of fraight to be paid for part of a voyage . the skipper , to hire another ship to finish his voyage , in case of disaster to his own . the reward of salvage not to be paid according to promise made in time of distresse , but as the court of admiralty shall determine according to equity . notes for div a -e mariners ( without the leave of the skipper ) may not go out of the ship , when arrived to a port. in some cases some of them may . notes for div a -e mariners drunk a shore , and wounded , not to be healed at the ships charge . mariners wounded in the ships service , are to be healed at the ships charge . notes for div a -e how sick mariners are to be provided for . the ship not to stay for a sick mariner . sick mariners ought to have their full wages , deducting the charge of his sickness . * executors of a deceased mariner , ought to receive the wages due to him . notes for div a -e in case of storm , skipper to use his discretion in casting goods over board , to lighten the vessel , and to preserve the same . what the law is in the case of averidge . notes for div a -e what the law is in case of cutting masts or cables in a storm . notes for div a -e the ship-ropes or slings to hoyse out goods withal , to be viewed before used . notes for div a -e goods damnified at sea , whether by the ship-tackle or not , to be purged and cleared by the oath of the skipper and part of his company . notes for div a -e the law in case of the lye , or a stroak given by or to the skipper or his mariners . notes for div a -e the law in case of difference between the skipper and any of his mariners . skipper to take an able mariner in the absence of another , or to make good the damage , if any thereby . notes for div a -e in case of collision , one ship against another , the damage to be in common , and equally divided , yet so as they both ( if need be ) purge themselves of all wilfulness by oath . notes for div a -e what the law is in placing of anchors in harbours , specially where there is but little water ; as also of boys to the said anchors . notes for div a -e what the mariners immunity or priviledge anciently was in fraight ; which is now grown obsolete . notes for div a -e it seems in those days this was the law ; now no such thing in use . notes for div a -e the skipper may compel the mariner to complete the ships voyage . notes for div a -e the contract for wages must be performed , though the voyage be not ; so as the fault be not in the mariners . notes for div a -e what the law is touching mariners going a shore when the ship is in port. notes for div a -e the merchant to pay demourage , when it happens through his own default . notes for div a -e what the law is in ●ase a skippe● on his voyage be reduced to necessities in a forraign port. in some cases the skipper may sell part of his lading . if part os a merchants carge be sold to supply the necessities of the ship , the value and fraight thereof is to be made good to and by the said merchant . notes for div a -e the head of an unskilful pilo must go for the loss of a vessel occasioned by his unskilfulness , in case he hath not wherewith to make satisfaction . notes for div a -e what the law is in case of damage to goods , by reason of the ship-ropes or slings in hoysing of goods over board . notes for div a -e what the law is as to partnership in the fishing craft . in case of such partnership , part of the profits upon such a fishing design , accrue to the next of kin , to the deceased in that design . notes for div a -e ship broken , men not to be impeded or h●ndred , but aided and assisted in preservation of ship and lading . salvage to be regulated , not according to promise made by the distressed , but as the court of admiralty shall judge in equity . art. . naufragium , quasi navis fractio . the penalty of such thieves as steal srom persons that are ship-broken . notes for div a -e vvhat the law is in case of wreck . * as if the gift of salvation might be purchased with mony . good meanings will never exculpate blind and superstitious devotion . this is the law of rome by land at this day , as well as of oleron at sea , nigh years since . notes for div a -e covetousness which is idolatry , sometimes is also bestiality . they that lived like beasts , might not dye like men ; by the law of oleron . notes for div a -e behold and wonder at the diabolical practice of some treacherous pilots . the penalty of such thieves as steal goods from poor distressed ship-broken persons . notes for div a -e the exemplary punishment of all treacherous pilots . notes for div a -e an adequate punishment , & without respect of persons ; which will not counterpoize one grain of honesty in the ballance of justice ; so exact was this law in punishing such politickly covetous miscreants . notes for div a -e goods cast over board for lightning the ship , quatenus such , are not derelicts . merces è nave jactae , derelictae non videntur . leg. . dig. pro derelict . notes for div a -e what symptomes for a presumption in certain cases of goods cast over board , that they are not derelict . notes for div a -e res nullius , & noviter inventa , fit primo occupantis . notes for div a -e now called royal fishes . out of the mouth of a fish the king of kings himself will work a miracle to pay tribute , rather then offend by denying it where it is due . matth. . . notes for div a -e in such things custome is to be observed . notes for div a -e consuetudo in tract of time may evaporate into desuetudo ; as in this case . notes for div a -e this hath reference only to such times and places , as wherein such custome did prevail . notes for div a -e locupletari nemo debet cum alterius injuria . leg. . tit . . cod. lib. . & dig. lib. . tit . . leg . . § . & dig. lib. . tit . . leg . . § . & dig. lib. . tit . . leg . . notes for div a -e non tam tenetur , qui non tenet , quam qui detinet . notes for div a -e consuetudo est lex non scripta , & natura postscripta . goods found and presumed to have belonged to shipping , are dedicated not to profane but pious uses . art. . if in heaven , they need no prayers ; if in hell , ab inferis nulla redemptio ; if in purgatory , 't is pity to trouble them , the longer there , the better purged ; this is rom●s utopia . notes for div a -e res capta sit captentis , was law well meant at oleron ; but very ill expounded by our late interpreters . notes for div a -e presupposing the finders knowledge of of the true owner thereof . notes for div a -e what the law is in case of treasure trove . you may not note or infer hence , as if in all ages the clergie had a finger in all elements . notes for div a -e what the law is in case a ship by stresse of weather be forced from her cables and anchors . well meaning devotion in a superstitious way , opens a dore to idolatrie ; and politick devotion in an hy-pocritical way le ts in blasphemy . the names of skippers or of their ships to be engraven on their boyes . notes for div a -e what the law is in case of wreck . notes for div a -e pirates and other unreasonable men are to be dealt with like other irrational animals . catholick signifies general or universal ; but orthodoae hath a far better signification . a proclamation discharging the transporting of persons to the plantations of forraigners in america. scotland. privy council. approx. kb of xml-encoded text transcribed from -bit group-iv tiff page image. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). b wing s estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. b ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) a proclamation discharging the transporting of persons to the plantations of forraigners in america. scotland. privy council. scotland. sovereign ( - : william ii) sheet ([ ] p.) printed by the heirs and successors of andrew anderson, printer to the king's most excellent majesty, edinburgh : anno dom. . caption title. intentional blank spaces in text. dated: given under our signet at edinburgh the day of december and of our reign the tenth year . signed: gilb. eliot, cls. sti. concilii. reproduction of the original in the national library of scotland. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the , texts created during phase of the project have been released into the public domain as of january . anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng maritime law -- scotland -- early works to . international travel regulations -- scotland -- early works to . broadsides -- scotland -- th century. - tcp assigned for keying and markup - spi global keyed and coded from proquest page images - mona logarbo sampled and proofread - mona logarbo text and markup reviewed and edited - pfs batch review (qc) and xml conversion a proclamation discharging the transporting of persons to the plantations of forraigners in america . william by the grace of god , king of great-britan , france and ireland , defender of the faith , to macers of our privy council , messengers at arms , our sheriffs in that part , conjunctly and severally specially constitute , greeting ; forasmuchas , it is inconsistent both with the honour and interest of this our ancient kingdom , that any persons should be transported out of the same , either by natives or forraigners to plantations belonging to forraigners not natives of this kingdom , without leave and allowance first obtained from our privy council : therefore we with advice of the lords of our privy council , do hereby strictly prohibite and discharge all persons masters or owners of ships and others whatsoever , whether natives of this kingdom or forraigners , to presume to take up , engadge or carrie abroad any of the subjects of this our antient kingdom , in order to their being transported to the foresaid plantations after the day and date hereof , without licence first obtained from our said privy council , under the pains to be repute and punished as men-steallers , and to be prosecute accordingly . our will is herefore , and we charge you strictly and command , that incontinent these our letters seen , ye pass to the mercat cross of fdinburgh , and to the remanent mercat crosses of the hail head-burghs of the several shires and stewartries within this kingdom , and there in our name and authority by open proclamation , make publication hereof , that none may pretend ignorance and ordains these presents to be printed . given under our signet at edinburgh the day of december and of our reign the tenth year . per actum dominorum secreti concilii gilb . eliot , cls. sti. concilii god save the king. edinburgh , printed by the heirs and successors of andrew anderson , printer to the king 's most excellent majesty , anno dom. . a vindication of a national-fishery wherein is asserted that the glory, wealth, strength, safety, and happiness of this kingdom, with the flourishing of trade, and growth of navigation, as also the employing of the poor of this realm, doth depend (under god) upon a national-fishery : and all the general, vulgar, (tho' erroneous) objections against encouraging the fishery of england, answer'd, and confuted : to which is added the sovreignty of british-seas. gander, joseph. approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a wing g estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) a vindication of a national-fishery wherein is asserted that the glory, wealth, strength, safety, and happiness of this kingdom, with the flourishing of trade, and growth of navigation, as also the employing of the poor of this realm, doth depend (under god) upon a national-fishery : and all the general, vulgar, (tho' erroneous) objections against encouraging the fishery of england, answer'd, and confuted : to which is added the sovreignty of british-seas. gander, joseph. gander, joseph. sovereignty of the british-seas asserted. [ ], p. printed for f. coggan ..., london : mdcxcix [ ] "epistle dedicatory" signed: joseph gander. "sovereignty of the british-seas asserted"-- p. - . reproduction of original in the huntington library. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the , texts created during phase of the project have been released into the public domain as of january . anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng fisheries -- economic aspects -- great britain -- early works to . fisheries -- economic aspects -- netherlands -- early works to . maritime law -- great britain -- early works to . - tcp assigned for keying and markup - aptara keyed and coded from proquest page images - elspeth healey sampled and proofread - elspeth healey text and markup reviewed and edited - pfs batch review (qc) and xml conversion a vindication of a national-fishery : wherein is asserted , that the glory , wealth , strength , safety , and happiness of this kingdom ; with the flourishing of trade , and growth of navigation : as also the employing the poor of this realm , doth depend ( under god ) upon a national-fishery . and all the general , vulgar , ( tho' erroneous ) objections against encouraging the fishery of england , answer'd , and confuted . to which is added , the sovereignty of the british-seas . england's a perfect world ; 't has indies two : correct your maps ; the fishery ▪ is peru. london : printed for f. coggan , in the inner temple lane. mdcxcix . to the most noble and mighty prince , thomas duke of leeds , marqvess of carmarthen , earl of danby , viscount latimore , baron osbourne of kiveton , lord president of his majesty's most honourable privy-council ; lord lieutenant of york-shire , governour of kingston upon hull , and knight of the most noble order of the garter . may it please your grace , the great applause you have so deservedly meritted , hath encouraged me to dedicate this small epitomy to your honour ; and not knowing any man , that can with more lively colours represent this important affair to the wisdom of the nation , i lay it at your lordship's feet , as an undertaking , ( which if your grace be pleased to espouse , for the good of the kingdom ) you will thereby add another trophy to your former atchievements ; and the glory of the action will be recorded to all posterity : for upon a national-fishery , under god , doth depend the safety , honour , and happiness of this kingdom , the flourishing of trade , and the supporting of credit , as in the sequel of my discourse , i hope , i have made appear . my lord , this age gives us too many examples , of discouraging ingenuity ; many excellent qualities lying often hid under humble looks , and mean habits , which soon are discountenanc'd , and suppress'd by insulting greatness and popular opulancy : but you have shewed by the constant example of your actions , that you have agreed with seneca , in his renowned maxim ; that sola virtus vera nobilitas , when so many others , are blinded with their absurd vanity and airy greatness . but you have rendred your self a true patriot to your country ; and therefore i most humbly implore this book may be sheltred under the wings of your graces protection : who am , right honourable and renowned sir , your graces most humble and most obedient servant , joseph gander . to the barons of the cinque-ports , and the members of parliament for the coasting-towns and burroughs of the kingdom of england . honoured and worthy senators , the cinque-ports of this kingdom , having signalized their loyalty and valour by sea , in several expeditions , for the glory of the king 's , honour of their country , and safety of the realm , our preceding kings confirmed several dignities on them , and amongst the rest , made their members of parliament barons , as an encouragement to navigation , and their prowess . and gave them the honour of supporting the canopy over his head at his coronation ; as is supposed by way of similitude : that whereas they had defended , supported , and maintained his honour by their courage against his enemies by sea , he gave them the honour to support the canopy over his head ; as a mark of honour to them , and his acknowledgement of the greatness of their service . and many coasting-towns and burroughs , have from time to time , been endowed with great priviledges , some of them remaining to this day ; as a mark of honour , by several kings , to encourage navigation ; from whence originally , we have beyond all dispute , arrived to the knowledge we are now attained to in marine affairs ▪ but now most of those towns and burroughs ( that formerly flourished by their fishing ) are reduced to miserable poverty , and thousands of families ruined for want of the fishery . and the gentlemen who have estates in those places , or near the coast , are exceedingly impair'd . of which calamity , king henry the th had undoubtedly a fore-sight of , as appears by the sratute of of his reign , 't is there thus inserted ; because the english fishermen dwelling on the sea coasts , did leave off their trade of fishing in our seas , and went the half seas over ; and thereupon they did buy fish of pickards , flemmings , normands and zealanders , by reason whereof , many incommodities did grow to the realm , viz. the decay of the wealth and prosperity , as well of the cinque-ports , and members of the same , as of other coasting-towns by the sea-side , which were builded , and inhabited by great multitudes of people , by reason of using , and exercising the feat , and craft of fishing . secondly , the decay of a great number of boats and ships . and thirdly , the decay of many good mariners , both able in body , by their diligence , labour , and continual exercise of fishing ; and expert by reason thereof , in the knowledge of our sea-coasts , as well within the realm , as in other parts beyond the seas . it was therefore enacted , that no manner of persons , english denizons , or strangers , at that time , or any time after , should buy any fish of any foreigners in the said ports of flanders , zealand , pickardy , or france , or upon the sea between shoar and shoar . this shews what great care our former kings , and parliaments have taken to preserve the nursery for sea-faring men , for the defence of the kingdom , and for the preservation of our coasting towns , &c. and , have therefore thought fit in all humility to dedicate this book to you , as before-mentioned . if my sincere intentions to serve the kingdom , have its desired success , i have my wish , who am your most humble and most obedient servant , j. gander . a vindication of a national fishery , &c. by the benign goodness of god , and by the wise conduct of our king , and the admirable wisdom , and prudent care of our sage senatours at home : england , after a tedious and chargeable war , hath obtained an honourable peace . and the sword being now sheathed ; his majesty in his most gracious speech to both houses of parliament , hath declared his royal inclination , for the preservation of the saftety , honour , and happiness of the kingdom , &c. so that it is not to be doubted but that the genius of our government , will make it the chiefest of their care , to settle the affairs of trade , upon the most firmest foundation , for the publick good of our nation . for the most destructive consumption that can happen to a kingdom , and the only nurse of idleness and beggary , is want of trade ; whereas on the contrary , increase of trade , encourageth labour , art and invention , and enricheth the common-weal . and beyond all dispute , the fishery of england , is the main trade of this kingdom , rightly managed ; the good patriots of our country are to weigh the matter : and it is so comprehensive a blessing , that were those advantages but industriously improved , that providence hath bestowed on this island , we might consequently be the most flourishing people in the whole world , both by sea and land. and seeing by the decay of the fishing trade , we have lain open to france , and holland , by neglecting our own preservation , and ill management of the fishery amongst our selves , it may be supposed , it is high time to look to it . but whether this great loss to the kingdom hath been occasioned by our wilful , or inadvertised neglect : i shall not determine ; and hope it will speedily be taken into the consideration of the most judicious patriots of our countrey . and then we shall draw back the trade from foreign nations , and employ our own people . the great and weighty question upon this point of trade to be considered , is : whether it is not the general interest of england , to revive and encourage a national fishery , it being the main pillar of the trade of this nation ; and humbly offer my weak opinion of the necessity of it ; for england being situated in the very jaws of neptune , by her commodious harbours , rivers and bays , &c. must be defended by shipping ; and she is the best accommodated with sea-ports of any place in christendom , and stands fairest to be lords of the sea of any people in the world. this kingdom being an island comparatively , were it , not for that isthmus or neck of land to the north , that joyns it to scotland . it must be universally allow'd , that her floating castles must defend her from all foreign invasions or incursions . and since she is obliged to defend her self by naval-force . it should be considered how that must be maintain'd and preserved : for , without those bul-warks , the kingdom , and consequently the rest of the dominions must be in a few years , in a very deplorable condition . and nothing is more certain than , that it is the sea enricheth the land , which is confirmed by the great advantages of getting treasure , by navigation both at home and abroad ; as is manifested by the grandeur that merchants generally live in , in england , holland , france , &c. history gives a very satisfactory account of this truth ; how the venetians have arrived to that greatness they now live in by navigation , and by their naval force , claim a prerogative of the adriatick sea. and also , to what greatness hath the french king attained to by navigation in a few years , that he gives laws in the mediteranean sea. and the hollanders by their navigation are grown , as opulent ( almost ) if not altogether , as any people in the world. but in queen elizabeths reign of blessed memory , england gave so fatal an overthrow to the spanish armado in anno , that she was the terror of the whole universe , by being so potent by sea ; and after her majesties success of that famous victory , she was as much aggrandized by foreign princes , for her conquest , as she would undoubtedly have been despised , had she been overcome . but how england has declined since her reign , for want of the fishery for nursery for sea-faring men , is obvious to the whole world. woful experience tells us , how much our neighbours have grown upon us ; by this neglect of ours , by the wealth they have got within this forty or fifty years ; and also by their daily increase of of shipping . and for want of true telescope to see clearly how this national fishery may be preserv'd and maintain'd , we are and have been many years , in the dark . it is not only the fish that we loose , and the impoverishing the coasting towns , and burroughs , the only loss that this nation sustains ; but for want of a prudent method to manage this fishery . we have only the colour for a nursery for seamen , which will not breed a tenth part of the men we have occasion for in time war , as we are an island . further , the hollanders and french , finds these advantages ( by encouraging of the fishery's , that they do not only get wealth , but it inures their men to the hardship of the sea , and makes them skilful in handling their tackling in pilotage and navigation . ) so that they know our own coasts , shoals and harbours , better than we do . but the antient britains permitted none to fish on our coasts , or in our seas , nor any to sail into the island , without their leave , and those only merchants ; nor would not permit any foreigner to view or sound their sea-coasts , which was undoubedly a great security to them , and encouragement to their pilots ; but now , 't is observable , that the hollanders seldom make use of english pilots , to come into any of our harbours ; and if they have occasion to man out a fleet of men of war , 't is but making a draught out of the fishery , and they are put on board their own climate . whereas , to the great detriment of this nation , and loss of our men ; when we have occasion to man the royal navy , we are forc'd to press tag , rag , and bob-tail , a parcell of lowsy vagrants and vagabonds , that have not prowess to make them soldiers , nor genius to make them mariners ; and while they are in harbour , eat up the nations provision : and when they come to be roll'd and toss'd by the waves at sea , they are as sick as so many dogs , and infect great numbers of sea-faring-men , * by which great inconveniecy , renders them more fit for an hospital , than a fighting navy ; as is seen in time of war , and our sea commanders the daily witness of this calamity . and it cannot be deny'd , but that it was the fishery of england , that supplied queen elizabeths navy with seamen , and made her so potent , to give so fatal an overthrow to the spaniards , that , that one blow was so great a loss , that they will never retrieve it , nor be able to oppose us either by sea or land. and her clemency to the hollanders , in giving them permission to fish on our coasts , was the very first foundation that they laid , to raise themselves to their present grandeur , and by the wealth they have got , and shipping , by their breeding of sea-faring men , they are rendred very formidable at sea. it is worth the while , saith the reverend mr. cambden , to observe what an extraordinary gain the hollanders , and zealanders , do make by fishing on the english seas , ‡ having first obtained leave from the castle of scarbourough ; for the english have ever granted them leave to fish , reserving always the honour and the priviledge to themselves ; but through negligence resigning the profit unto strangers , 't is almost incredible , saith he , what a vast sum of money the hollanders do make by this fishing upon our coast . and in edward the fourth's reign , * he ordered commanders with a naval power , to protect and guard the fisher-men upon the coasts of norfolk , and suffolk , and the charges of the guard were defrayed by the fishermen ; the english nation were ever in past ages renowned for sea-affairs , in all countries near the seas ; and they had also a numerous navy , that the people of all countries esteemed , and call'd the king of england , king and sovereign of the seas . and why england should not now insist upon the sovereignty of the british seas , as in former times , seems very wonderful ! but some people may say , that in case this fishery were encouraged , it may be a means to prevent eating so much flesh , as we do now in england : and so consequently , be very prejudicial to our landed-men , and bring the rents of the farms lower . but this with submission , is a very erroneous notion . for example : the fish that may or should be caught in the british seas , is not intended to be eat in england , and perhaps not one huudredth part of it , but to be sold at foreign markets ; as in due time shall be observed . and to make it appear , that if a national fishery be encouraged , it will cause a greater consumption of flesh than is now in england , and consequently , rather encrease than diminish the rents of our landed gentlemen , and in few years might double the rents , as the fishery flourished , and our trade encrease both at home , and abroad . i humbly offer these reasons ; first , our coasting towns , bouroughs and villages adjacent , that formerly had their dependance on the fishery , are reduced to so great poverty , for want of being employ'd , that they are now constrain'd to feed upon coarse-bread , butter , cheese , milk , turnips , carrots , or on such roots and herbs , as they can get : whereas if they were employed in this fishery , they would then have money to go to market , and buy flesh , as their ancestors did before them , for themselves , and families : and i suppose there is not any man , but what is sensible that the english naturally loving flesh , the meanest man or woman in the kingdom would have roast and boyl'd meat for themselves and families , as well as their landlords , if their purses would bear it . so that then there would be a greater consumption of flesh than there is now , not only in our coasting towns , &c. but in all probability , through the whole kingdom , when once we flourish in this fishery . this great and glorious undertaking will not only enrich us , but employ thousands of people that are now so miserable poor , that they gradually starve for want of having this encouragement . and what is worthy your particular notice , it would prevent abundance of sea-faring men from going into foreign service in times of peace , for want of employment at home ; many of them leaving their wives and children to be maintained by the parish , which undoubtedly is a great grievance to the respective parishes , and a burthen to the inhabitants . and this fishery would not only preserve thousands of families from starving , but then they would wear better cloaths , and promote our woollen manufactury ; for 't is only poverty makes people wear rags ; and being disheartned , it oftentimes prevents their devotion . and it will also prevent a great many inconveniencies , that now attend this nation , for want of being employed . for example : there would not be so many vagrants and vagabonds , nor so many people that take illegal courses ; as thieving , robbing , &c. to the ruine of themselves and others . nor so many export our corn , nor carry our wooll unwrought out of the kingdom , if they were employed another way . this fishery would also employ abundance at land , so well as by sea ; as clerks , accomptants , ware-house and store-keepers , and the like , and great numbers of artists and tradesmen : so that then there would be provision for a great many men , that go crawling about the streets , like so many snails , for want of employ , that have been well educated . besides , 't is an universal maxim , that idleness is the root of all evil ; and a great many people fear starving more than hanging , as is seen almost every session , or assizes ; for let the judge enquire of the criminals , what induced them to take the lewd courses they are indicted , or arraigned for , the general reply , is want. further , it is supposed by all that have travelled , in the low-countries , that where one male-factor is executed in holland or in france , there is above one hundred in england ; and the only reason that can be given , why there are so few in holland and france , and so many executed in england , is , that they take care to employ their subjects ; and those that are uncapable by age , or any other infirmity for labour , are provided for , by allowing them a competent maintenance to live on ; ( but 't is the fishery of england , that employs and enricheth them . ) and the hollanders themselves will boast , that god blesseth them in their tradring , and defends them from their enemies , for being so good to the poor . and it is a confirmation of the sacred writ , that he that considereth the indigent , the lord will remember him in the day of his tribulation . and what a great glory will it be to the king and kingdom , to preserve so many thousand subjects , that are now involv'd in such miserable necessity , that in all probability they must perish , if this method be not speedily taken . and since his majesty has been instrumental in delivering these kingdoms from slavery , and popery , &c. 't is to be supposed that he will also make it his chiefest care , to preserve his subjects from destruction ( that have so bravely ventur'd their lives , both by sea and land ; and have paid their money with so much chearfulness to carry on the war. and have so long languished under their afflictions . ) and he * having maugred all opposition , both at home and abroad , it now remains , that he attacks himself , that his goodness and greatness , may vye with each other , by enquiring , b what is to be done to retrieve them from their withering calamity . and 't is believed by all well-wishers to the welfare of these kingdoms , that his majesty will sign all those acts , that shall be for his glory , the senatours honour , and the preserving so well as enriching of his subjects . when he shall be advised to it by his parliament , in whom he has so great confidence , as he hath often declared for the good of his people , in his most gracious speech to both houses of parliament , which are too tedious here to insert . and having made the proud lillies of france stoop to him , and recovered the principality of orange , he will now assume his trident. and to emulate his royal predecessor , william the i. conquerour of england , who , after being possessed of the kingdom , took a view of it in a royal progress , and then did see there was an incumbent necessity to defend this realm by shipping ( altho' he set fire of his own fleet at his landing , to let his men know his intentions : aut caesar aut nullus . ) whereupon he demolished several villages in hampshire , and there planted a large forrest of oaks , c which to this day is call'd new forrest , it being above two and twenty miles in length , and eleven miles over . this shews what care our ancestors from time to time , have taken to secure this island by navigation , and for providing ships of force , as well as for commerce ; the one to enrich , the other to defend , as well our trading by sea ) as the island from invasion . for there is no dominion that can expect to flourish in trade , or be enriched by commerce , if they do not secure themselves by force , either by sea or land , as opportunity offers , or the necessity requires . 't is undoubtedly the interest of the nation to stand as well upon their guard in times of peace , as in war ; that they may give no opportunity to an enemy to surprise us , by sea , or land. and since there is so great a necessity for the defence of the nation , to support our navgation by this fishery , certainly our senatours will take care that the grandeur of these glorious kingdoms shall not be ecclipsed by the growing greatness of our neighbours , who have , and still do encroach upon the sovereignty of the british seas , which is the only diadem of the imperial crown of these dominions ; and the port cullizes and guard of the realm . but the fishery , if encouraged , will be for the good of the kingdom in general , from the king to the peasant ( or meanest subject ) and in some measure take off the burthen of the taxes this nation hath so long struggl'd under ; and not only make the exchequer the greatest bank in the world , but oblige the treasure of the east and west-indies , comparatively , to meet in our streets ; and also preserve a perpetual union amongst the subjects of england , let them be never so retrogade in their opinion , as to their profession of religion . and this happy union will prevent all intestine commotions ; and bid defiance to all foreign invasions , or incursions . and it cannot be denied , but that england had formerly the richest fishery in the world ; when we maintain'd the sovereignty of the british seas ; and by computation , had above fishing ships ; and had it been encourag'd , by a reasonable . increase , we must have had now , between and fishing ships ; and nothing can be more true , than that the fishery of england , is the main pillar of the trade and defence of this nation . and it will not only raise the naval force of england , but by its growth and flourishing , be a curb , to keep under the growing power of the french and hollanders , and bring in great treasure to the kingdom , as aforesaid . and further , if this nursery for seamen were encouraged , the merchants would never want men to carry their ships to sea , nor be in danger of having their men press'd in time of war ( which is a great detriment to our trade , and loss to the king and kingdom ) for then we should have sea-faring men , and mariners enough , to serve the kingdom . and in regard that some people may say that there will not be constant employ for our seamen in the fishery in times of peace ; and so prevent their going into foreign service for want of employ at home : i have particulariz'd the respective seasons for fishing , throughout the year , in the british seas . of the miraculous treasure of the british seas . the coast of great-britain doth produce a continual harvest of profit and benefit to all that do fish there ; and such shoals and multitude of fishes are offer'd to the takers , that it makes an admiration to those that are employ'd among them . the summer ▪ fishing for herrings , beginneth about midsummer , lasteth some part of august . the winter fishing for herring , from september , to the middle of november ; both which extend from bonghoness in scotland , to the river thames mouth , being a run of above a hundred leagues . the fishing for cod , at allum by , whirlington , and white-haven , near the coast of lancashire , from easter till whitsuntide . the fishing for hake , at aberdenie , abveswitch , and other places between wales and ireland , from whitsuntide , to st. james-tide . the fishing for cod and ling , about padstow , within the land ; and of severn , from christmas to midlent . the fishing for cod on the west part of ireland , frequented by those of biscay , and portugal , from the beginning of april until the end of june . the fishing for cod and ling on the north and north-east of ireland , from michaelmas to christmas . the fishing for pilchers on the west-coast of england , from st. james tide until michaelmas . the fishing for cod and ling , upon the north east of england , from easter to midsummer . the fishing of great staple-ling , and many other sorts of fish lying about the island of scotland , and in the several parts of the british seas all the year long . in september , not many years since , upon the coast of devonshire near minegal , five hundred tun of fish were taken in one day . and about the same time , three thousand pounds worth of fish , in one day were taken at st. ives in cornwal , by small boats. our five men boats and cobles , adventuring in a calm , to launch out amongst the hollands busses , not far from robinhood's bay , returned to whitby , full freighted with herrings , and reported that they had seen some of those busses take ten , twenty , and twenty four lasts at a draught of herring , and returned into their own country with forty , fifty , and a hundred lastes of herring in one buss . our fleet of colliers , not many years since , returning from newcastle , laden with coals , about the wells , near flamborough head , and scarborough , met with such multitudes of cod , ling , and herring , that one among the rest , with certain ship hooks , and other like instruments , drew up as much cod , and ling , in a little time , as sold for well nigh as much as her whole lading of coals . and many hundred of ships might have been laden in two days , and two nights . now what great inconveniency and detriment is this to the english nation ; that we do not encourage a national fishery , that we may retrieve those great advantages , that we have so long taken no notice of , in regard we can employ our seamen throughout the whole annual ? and out of which wonderful affluence and abundance of fish , swarming in our seas ; that we may the better perceive the infinite gain , which foreign nations make : i will especially insist upon the fishing of the hollanders on our coasts ; and thereby shew , how by this means principally they have risen , to the greatness of their present grandeur : . in shipping . . in mariners . . in trade , at home and abroad . . in towns and fortifications . . in power at home and abroad . . in publick revenue . . in private wealth . . in all manner of provisions , and stores of things necessary for the preservation of mankind , and munitions of war. encrease shipping . besides seven hundred strand boats , four hundred evars , and four hundred sullits , drivers , and tod-boats , wherewith the hollanders fish upon our coasts , every one of these employing another ship , to fetch salt , and carry the fish into other countries , being in all three thousand sail ▪ maintaining and setting on work , at least twelve thousand persons ; fishers , tradesmen , women and children . they have above ( as it is supposed ) one hundred doyer-boats , of one hundred and fifty tuns apiece , or thereabouts , seven hundred pinks and well-boats , from sixty to one hundred tuns burthen , which altogether fish upon the coast of england , and scotland , for cod and ling only . and each of these employ another vessel , for providing salt , and transporting of their fish , making in all , one thousand six hundred ships ; which maintain and employ persons of all sorts , four thousand at least ▪ for the herring season , they have one thousand six hundred busses at the least , all of them fishing only on our coast , from bonghoness in scotland , to the mouth of the thames . and every one maketh work for three other ships , to attend her ; the one to bring salt from foreign parts ; another to carry the said salt and cask to the busses , and to bring back their herring , and the third to transport the herring into foreign markets ; so that the total number of ships and busses , plying the herring-fare , is six thousand four hundred ships ; where every buss , one with another , employs forty men , mariners and fishers within her own hold ; and rest , ten men apiece , which amounteth to one hundred twelve thousand fishers and mariners . all which maintain double , if not treble so many tradesmen , women , and children by land. besides , they have generally four hundred vessels at least , that take herring at yarmouth , and there sell them for ready-money ; so that the hollanders ( besides three hundred ships , beforementioned , fising upon their own coasts or shoars : have at least four thousand eight hundred ships , onely maintain'd by the seas of great-britain . and to this number , they undoubtedly add every day ; although their countrey neither affords victuals , nor materials , nor merchandize to set them forth . yet by the great advantages that they have got by fishing on our coast , they abound in every thing that is fit for the use of mankind . encrease of mariners . the number of ships , fishing on our coasts , as being aforesaid , four thousand eight hundred , if we allow but twenty persons to every ship , one with another , the total of mariners and fishers amounteth to one hundred sixty eight thousand , out of which number they daily furnish their ships , to the east and west-indies , to the meditereanean , and for their grand fleet of men of war ; for by this means they are not only enabled to brook the seas and know the use of their tackles and compass , but are likewise instructed in the knowledge of navigation and pilotage , insomuch , that from hence their greatest navigators have had their educations and knowledge of the seas . encrease of trade . by reason of those multitude of ships and mariners , they have extended their trade to all parts of the world , exporting for the most part , in all their voyages , our herrings , and other fish , which they catch upon our coasts , or in the british seas , for the maintenance of the same . in exchange whereof they return these several commodities from other countries : from the southern parts , as france , spain , and portugal ; for our herrings , and other fish , they return oyls , wines , pruens , honey , woolls , leather , with store of coin in specie . from the streights ; velvets , sattins , and all sorts of silks , aloms , currants , oyls , and all grocery-ware , with much money . from the east-countries for our herrings , and other french , and italian commodities , before returned , they bring home corn , wax , flax , hemp , pitch , tarr , soap-ashes , iron , copper , steel , clap-board , wain-scot , timber , deal-board , dollars , &c. from germany , for herrings and other salt fish , iron , mill-stones , rhenish-wines , plate-buttons for armour , with other munition , too tedious to insert ; silks , velvets and rushes fustians , baratees , and such like frankford commodities ; with store of rix dollars . from brabant and flanders : they return for the most part ready-money , with some tapestries , and some other commodities ; and some of our herrings are carried so far as brassil . and that which is more strange , and to our great dishonour , they have generally four hundred ships , which fish in sight of yarmouth , and vend the herrings in england , and make us pay ready-money for our own fish . sir josiah child in his discourse of trade , in the end of his preface , is pleased to say , that he hath exposed his conceptions to the publick censure , with an assurance , that they will be received and honoured with a publick sanction , and past into laws ; and thus begins his book . the prodigious increase of the netherlands in their domestick and forreign trade , riches , and multitude of shipping , is the envy of the present , and may be the wonder of future generations . here he sets out the riches of holland , and backs it on with an addition , in several subsequent expressions in his book : they are sampsons , and goliah's , in trade : sons of anach ; men of renown , masters of the field ; like a prevailing army that scorns to build castles and fortresses , to secure themselves as we do by act of our navigation ; and to advance their glory herein , he tells us , that we are but dwarfs , and pigmies , in stocks and experience , &c. but he takes no notice that they have attained to their greatness by fishing on our coasts ; and that we were the sampson's and goliah's in queen elizabeths reign , and they the pigmies , as shall be made appear more at large . and the honoured author goes further on in his preface , and tells us , that were they freed from the french fears , they would be worse than task-masters over us in trade , considering their treasure . that the trade of the english nation is in a very bad circumstances , is plainly seen by all thinking men ; and since it is practical among kings and princes , and sates , to joyn one with another ( or enter into a confederacy ) to oppose a king , or prince , that is growing too great , that if they do not endeavour to suppress him , it may be a means to lie open to them whenever he intends to make an invasion or incursion into their dominions , or invade their territories . and whether it is not now high time , considering those vast improvements of the hollanders and french , to depress the growing greatness of our neighbours , must be left to the great wisdom of our senatours ; and also , whether a longer continuance of their fishing on our coasts will not be a further encouragement to their encroachments , and our own title , as to the antient sovereignty of the british seas ? by this their large extent of trade , they are become citizens of the whole world , whereby they have so enlarged their towns , that most of them within this hundred years , are full as big again as they were before ; as amsterdam , rotterdam , dort , middleburgh , &c. having been twice enlarged , their streets and buildings are orderly set forth , that for beauty and strength , they may compare with any other cities in the world ; upon which they bestow infinite sums of money ; all this originally flowing from the bounty of the british seas , from whence by their labour and industry , they derive the beginning of all that wealth and greatness ; and particularly for the havens of the aforesaid towns , whereof some of them cost forty , fifty , or an hundred thousand pounds : their fortifications , both for number and strength , ( upon which they have bestowed innumerable sums of money ) as well upon their frontiers , as ports , and may vye with any people in the world. encrease of power abroad . such being the number of the ships and mariners , and so great their trade , occasioned principally by their fishing , they have not only strengthned , and fortified themselves at home , and to repel all foreign invasions ; but have likewise stretched their power to the east and west indies , and in many places thereof , they are lords of the sea-coasts ; and have likewise fortified upon the main : and more than this , all the neighbouring princes , in their differences by reason of this their greatness at sea , are glad to have them of their party , as was exemplified , when the wars were between the danes and the swedes , the hollanders were for the king of denmark , and lent him vantrump to be his admiral , who had the success of sinking the swedish admiral , and overthrew the swedish fleet. this is a confirmation how much they are in esteem for their strength at sea , and that one would think ought to be a president for england , to preserve our naval-force . encrease of publick revenue . moreover ; how mightily the publick revenue , and custom of that state is increased by their fishing on our coasts , may appear in this ; that above forty years since , over and above the customs of other merchandize , excises , licenses , waftage and lastage , there was paid to the states for custom of herring , and other salt fish , above five hundred thousand pounds in one year , besides the tenth fish , and cask paid , and for waftage , which cometh to at least as much more , among the hollanders only : whereto the tenth of other nations being added , it amounteth to a far greater sum. we are likewise to understand that great part of their fish that they take out of our seas upon our coasts , is sold in other countries for ready money , and they generally import from foreign countries , of the finest gold and silver ; coming home , recoin it of a baser allay under their own stamp , by which means they exceedingly augment their publick treasure . observation . so that if england would encourage this national fishery , we should heap the same advantages ; ( the allay of the coin only excepted , ) which we cannot permit in england . encrease of private wealth . as touching their private wealth ; if we consider the abounding stores of herrings , and other fish by them taken on our coasts , and the usual prices that they are sold for ; as also the multitude of tradesmen and handicrafts men , that by reason of this their fishing , are daily set on work , we must needs conclude , that the gain and profit thereof , made by private men , must of necessity be exceeding great ; as by observing the particulars following , will appear ; by dunkirk spoyling and burning the busses of holland , and setting great ransom upon their fishermen , enforced them to compound for great sums of money ; that they might fish quietly for one year ; whereupon the next year after the fishermen agreed amongst themselves to pay to the states of holland a dollar , for every last of herring , towards the maintenance of certain ships of war , to secure them in their fishing on our coasts , they having obtained liberty from england for the same ; by reason whereof there was a record kept of the several lasts of herrings that year , and it appeared thereby , that in one half year they had taken thirty thousand lasts of herrings , which at twenty pound per last , amounteth to three millions six hundred thousand pounds , at sixteen , twenty , and thirty , pounds a last , as they are ordinarily sold ( according as they pick them ) and then transported into other countries , it cometh at least to five millions , whereunto , if we add the herrings taken by other nations ; as france , lubeck , hamborough , bremen , biscay , portugal , spain , &c. which for the most part fish in our seas ; together with cod , ling , hake , and other fish , and taken by the hollanders upon the british coasts , all the year long , the total will modestly and evidently arise to above ten millions . per annum . but admit it did amount to but five millions ; what a vast loss is it for our nation to sustain ? the great trade of fishing , employing so many ships at sea , must likewise maintain an innumerable number of tradesmen and artists by land ; as spinners , hemp-winders to cables , cordage , yarn , twine for nets and lines ; weavers , to make sail-cloths , cesive , packers , tollers , dressers , and cowchers , to sort and make the herrings lawful merchandize ; tanners , to tan their sails and nets ; coopers , to make cask , block , and boultmakers for ships , keelmen , and labourers for carrying and removing their fish : sawyers for planks , carpenters , shipwrights , smiths , carmen , boatmen , brewers , bakers , and a great number of others , whereof many are maimed persons , and unfit to be otherwise employed , children and families ; and further , every man and maid-servant having any poor stock , may venture the same in their fishing-voyages , which affords them ordinarily , great increase , and is duly paid according to the proportion of their gain . encrease of provision . and further it is well known , that holland it self , only doth afford a few hops , madders , butter and cheese , and yet aboundeth in a very bountiful manner , ( by reason of this art of fishing ) in all kind of provision , so well for life as commerce ; as in beef , mutton , veal , corn , &c. in cloths and leather , and wines , silks , spices ; and for to defend themselves by sea , they have pitch , tarr , cordage , and timber , iron , steel , cannon , and all manner of small arms , for the service of their land forces . of all which they have not only enough to supply themselves , but from their magazines , are able to furnish their neighbouring countries . and if this fishery is not encouraged , it must certainly redound to the ignominy of the english nation , to permit strangers to fish on our seas , and impoverish our selves to make them rich ; insomuch that for want of encouraging this fishery , above two hundred towns , burroughs and villages are ruin'd ( that formerly were enriched by fishing ) and the inhabitants reduced to miserable want. whereas on the contrary , by our sedulous endeavouring to make use of this great blessing , we might in a few years , repair the decayed towns , and the losses of this kingdom ; and not only prevent the destruction of thousands of families , and grow so potent by sea , that none durst oppose us . and beyond all dispute , had our ancestors ( in the reign of queen elizabeth ) been told that either the french or hollanders , should ever have been so powerful by sea , as to appear with that naval force as they have done on our seas , they would have thought they had been the greatest lyars and impostors in the world , which is now too manifestly known , not only to this kingdom , but to the whole universe . and how can it be supposed , that we shall be able to defend our selves against any invasion or incursion , that a foreign enemy may make , unless we preserve the foundation of those floating castles that must secure the island ? which without controversie is a national-fishery . when 't is daily visible that the french and hollanders had never attained to that force by sea , they are now arrived to , if it had not been encouraged by this neglect of ours ; which in all probability may prove the giving the sword out of our own power , and to the last degree prove fatal to the english nation , if not speedily prevented . and since god and nature hath offered so great a treasure , and lays it at our own doors ; should we not be exceedingly to blame , if we do not accept of such a wonderful blessing , which no people in the world but our selves can boast of , to enjoy in so bountiful a manner as this is bestowed on us ? the right method to be taken to retrieve and secure our priviledges , ought to be the great and speedy care of the best patriot of our country ; i might give here many reasons for defending the right of the fishery to our own subjects , as upon the reason of justice , prudence and interest , and the right of our sovereignty of the british seas , admits of no dispute . some men may say , that it is not a proper time to insist upon , or dispute the sovereignty of the british seas . for these reasons . first , the king is a hollander born. secondly , that he hath an estate and revenues in holland . thirdly , if the states of holland had not assisted his majesty with their navy and army , in his expedition against king james , he would not have succeeded in his design . fourthly , that the states of holland may insist , that if they had not assisted england in the distress they were involved in king james's reign , they had not been delivered from tyranny and popery , &c. in answer to these objections , i humbly offer these considerations . as to the first , it is true , the king was born in holland , and by the mothers side english , but now his majesty is espoused to england by his coronation oath , and therefore , according to the sacred writ , will ( no doubt ) cleave unto his wife . and let some mens mistakes be what they will ▪ he must undoubtedly have a greater esteem for the english and for england , that hath crowned him with the imperial diadem of these kingdoms and dominions , than for the hollanders , if once they should oppose the sovereignty of the british seas , which is now his right , as hath been acknowledged by hugo grotius , upon the innaugaration of king james the first of england , he rendreth this magnificent character of him . tria sceptra profundi in magne cojere ducem ; which is , that the rights of english , scottish , and irish seas , are united under one scepter , neither is he satisfied with this bare profession , but he goes on , sume animos à rege tuo , quis det jura mari ; which is , take courage from the king , who giveth laws to the sea : and in the same book , in contemplation of so great a power , he concludeeth . finis hic est qui fine caret , &c. that is , this is an end beyond an end , a bound that knoweth no bound ; a bound which even the wind and the waves must submit unto ; this is the acknowledgment of hugo grotius himself , that before he had disowned the sovereignty of the british seas in his mare liberum . as to the second objection . the king is not unsensible , that his revenues in england doth far exceed those of holland , and the only way to secure his interest there , must be by dint of sword , for without that , he had never regained the principality of orange ; and it cannot be supposed that his majesty should value these kingdoms and dominons at so slender a rate , as to lie open to a foreign enemy for want of encouraging a national-fishery , which will be for his glory , the honour of the kingdom , and the publick good in general ; when he is convinced it is to be done , and thereby secures the interest and safety of his dominions , both at home and abroad . as to the third objection . 't is allowed , the states of holland did assist his majesty with their navy and army ; and in answer to this , the king knows it may be proved from undeniable record ; that if queen elizabeth ( of blessed memory ) had not assisted the states both by sea and land , when they first revolted from the king of spain , they would never been freed from the spanish yoke , nor a free state ; and further , for her majestie 's assistance , offer'd her the sovereignty of the netherlands , in consiederation of her royal bounty , and goodness to them , after she had sent threescore thousand pounds , upon on the account of sir thomas gresham , in anno , one thousand five hundred seventy and two ; so that it is supposed that not only the king but all christendom knows , that the hollanders owe their ab-origine , and the greatness they are now attained to , from england : so this is but one service done for another . as to the fourth objection . beyond all dispute the king and kingdom hath taken care to pay the hollanders , all the charges they were at for the navy and army . but it cannot be supposed that they would quit their pretensions to the sovereignty of the british seas , which is the main pillar of the nation . as in the preamble , of an act of parliament made in the . year of the reign of king charles the second , it is thus inserted . that the wealth , honour and safety of this realm ; as well for the maintainance of trade , and encouragement of navigation , as in many other respects , doth in a high degree depend on the fishery . and should god almighty , out of his infinite mercy and goodness , inspire the king and senatours , to revive and promote this national-fishery ; it would be such a comfort in danger to this nation , as the honey sampson found in the lyons jaws : and not onely the coasting towns , burroughs and adjacent villages , be enriched thereby ; but the king and kingdom in general , would find the sweetness of it . for did we but secure the sovereignty of the british seas , it would not only make the whole world stand in awe of us , but court us to buy our fish . for without , it is impossible the east and northern countries should subsist , and in many other places , herrings are every days meat , winter and summer , as well to draw on drink , as to satisfie hunger and in many places , the greatest part of the year , they are scarce to be had ; for soon after michaelmas , the sound is frozen , so that no herrings can be transported thither ; and france , spain , italy , and the rest of the catholick countries , could not keep lent ( without our fish ) which next to their own salvation , they tender most dear , in obedience to the command of the church of rome . 't is observable , that the hollanders make it their business to infect the people of england , that we cannot make the advantage of the fishery as they do ; and therefore it will be convenient to remove all the vulgar objections : some will have it that we want men , and others , that our men will never take to it . as to the first , i answer , that we have men enough , but they are idle and live upon the publick , without making any return of their labour , but let these people be employ'd in the fishery , and they protected by an act of parliament , we shall soon have enough , and to spare ; and it is a great happiness to this kingdom , that we can employ our sea-faring men in times of peace , and 't is so great a blessing , that no nation in the world has the like opportunity of employing and enriching themselves . the second ( exception or ) objection is ; that the genius of this nation will never endure the hardships of this employment . to which i answer , that the english do run greater hazards , and suffer greater hardships in their long , tedious , and unhealthy voyages ; as to the east and the west-indies , and the turkey voyages , where many men are lost , by reason of the heat of the climate , want of provisions and water , which in the fishery , there is none of these inconveniences to attend them , they being so often in and out of port ; and as to labour , the working of a mine is far beyond that of fishing , where the men sometimes work up to the middle in water . — but to come nearer to the point , the english is so far from having an aversion against fishing , that they apply themselves to it ; for example , after harvest is in , and the herring-season comes on , the country fellows and boys do go to the coasting towns , to be hired into the fishery ; and do generally take such a liking to it , that after or voyages they very rarely return to their rural employment , but take to the sea altogether . and further , i cannot imagine what hardships the hollanders can undergo in the fishing , more than the english are willing to do ; this is another objection . but this , beyond all dispute , is a very erroneous notion ; for the herring fishing in the english seas begins in june , and goes out in november ; and that for the first four months , it is the best time for profit , pleasure , and fair-weather ; for we seldom look out after the herring fishing till september , and so continue to the end of november , which is the most tempestuous season in the whole annual ; and then in january , we fit out for the north seas , and spend the remaining part of winter in all extremities of cold and hardship ; this is enough to satisfie , that we are able to undergo as much hardships as the hollanders . but however , i 'le strain this point a little further ; suppose that the winter fishing would be too hard for us , what excuse can we have for not makeing our improvements on the summer fishing , which is more advantageous abundantly ; another objection is , that the hollanders can fare harder than the english , in their course feeding , and great stress is laid upon this ; and that an english man will never be able to live on so sparing a diet as they do . now if it were so , and that an english diet could not be had , and that a dutch diet would not serve us ; but that is not our condition : for he that cannot brook with the one may have the other ; and i am induced to believe that pork , pease , and beef , are much better and more strengthening , than roots and cabbage , for the hollanders victualling is the same with ours , for beer , biscuite , butter , cheese ; all which we can provide our selves with , much cheaper than they : and to make good the defect of their ordinary provisions , they drink a great deal more brandy than the english do ; so then to take one thing with another , we victual with good provisions , as cheap or cheaper than they do . but besides the very suggestion of leaving a good diet , to go to a bad , is a very great error ; for the countrey men that enter themselves on board the fishery , fare far better at sea than they did at land ; for besides their general victualling , which they carry with them to sea , they feed upon the fish they catch , which for variety , being fresh taken , is a treat , to what a person of quality has at his table a shoar ; and of pitiful weak men at land , in a voyage or two , become stout , hearty , and healthful men. there are two more wolves in the way ; first , that our herrings are in no esteem abroad , because we have not the right way to cure them . secondly , we shall never make nothing on 't , for the hollanders will under-sell us , for freighting cheaper , and consequently beat us out of the trade . in answer to which ; first , there are two ways of curing the herrings , the one at sea , where they are gipp'd , immediately upon their taking , and barrell'd ; the other at land , where they are gipp'd , and pack'd some days after they are taken ; these we call shoar-made-herrings , and we know very well , that one barrel of the other for goodness , is worth one hundred of these ; and that they will never take their pickle kindly , unless their throats be cut , as soon as they are caught ; so that it is a great error to take a shoar-made-herring , for a tryal of skill in curing ; but for those that are made at sea , they are made as good , and as much in esteem abroad as any of the hollanders herrings , and they have been frequently sold in the east-country for four pounds a barrel ; and i could wish we were no more to blame , for not taking them than curing them ; but admit we did not know how to cure them ; i hope 't is not impossible for the english to learn. secondly , the other notion is , that the hollanders will beat us off of our trade ; this is as erroneous as the rest , and of no force at all against the fishery , or it is much more force against the merchant , and the newcastle trade ; for this lies under our noses , and more in our conveniency than any body 's else . and to neglect our fishing upon this consideration , is to quit all navigation , and leave our selves to the mercy of the hollanders , or to be made a prey to any that will attack us . and then to fear we shall want vent , is to imagine that the people will leave off eating , and a great part of the tradeing world is yet unserv'd with fish , and it never could be made appear that our herrings lay upon our hands for want of a market . and since all these objections are sufficiently answer'd , there is nothing wanting , but assuming our antient right , and taking possession of the fishery . and notwithstanding it is so apparently made appear , that this national fishery will redound so much to the glory of the king , honour of our senatours assembled in parliament , and welfare of the kingdom in general . we will suppose for argument sake 't is all but wast-paper . but here is the question to be put to the king and kingdom in general , if the growing greatness of the french and hollanders , has so much increased within this thirty or forty years last past , and still continue in the increasing of sea-faring men , mariners , and their naval force ; what will become of england in ten or twenty years ; when in all probability , they may be so potent ( unless a speedy check is put to their carrier ) that we shall not be able to oppose them ? and 't is an universal maxim , that the forces of potentates at sea : sont des marques de grandeur d'estat , saith a french author ; whosoever commands the sea , commands the trade of the world : he that commands the trade , commands the wealth of the world , and consequently the world it self . again ; as he that is master of a field , is said to be master of every town , when it shall please him ; so he that is master of the sea , may in some sort , be said , to be master of every countrey , at least of such as are bordering on the sea ; for he is ▪ at liberty to begin , and end war where , when , and upon what terms he pleaseth , and extend his conquests even to the antipodes . and england being encompassed with the sea , as aforesaid , and abounding in commodious and excellent havens bayes and ports , it excels for safety and security ( which is no small praise ) all the neighbouring countries in europe , if not all in the world , and needs not fear any neighbouring nation , but only that which grows potent in shipping ; for they onely can deprive us of our main security ; and if an island can make us as the continent . and if this nation is once over power'd at sea , we must expect to be the most miserable people in the vniverse , having for so many generations last past , lorded it over the whole world by sea ; that the very name of the english struck a terror into all those that durst oppose them . when william the first , subdued the realm , conquerour of england that was an easy fall ; it proving only prejudicial to some particular families ; and he residing in the kingdom , took all the care imaginable to preserve this nation , as already has been said , by his planting of a new-forrest with oaks , to his perpetual glory . but if once the naval power of england be overcome by the french or hollanders ; ( according to all human probability ) it must prove a fatal overthrow , so far as they can reach with fire and sword , being spurr'd on by ambition , and avarice , revenge and interest ; and then we should find the english saying to be too true ; that the french and hollanders are like fire and water ; good servants but bad masters . and it is most certain , that there is no other way to maintain the glory and grandeur of this kingdom but by raising a national-fishery ; which rightly understood , is the primum mobile of the nation ; 't is the only palladium of this realm , without which , 't is impossible to preserve , or revive the former glory of our ancestors , and secure the sovereignty of the british seas , and enrich the kingdom by navigation . the sovereignty of the british-seas , asserted . england hath claimed a prerogative of the british seas time out of mind ; and amongst our former and ancient kings , king edgar was very potent , who possessing an absolute dominion of the seas , sailed round about it every year , and secured it with a constant guard , as it is recorded ; and what dominion king edgar had , as absolute lord of the sea , appears in these words ; i edgar king of england , and of all the islands , and of the ocean lying round about britain , and of all the nations that are included within the circuit thereof , supream lord and governour ; do render thanks to almighty god my king , who hath enlarged my empire , and exalted it above the royal estate of my progenitors , who altho they arrived to the monarchy of all england ; ever since athelstan , yet the divine goodness hath favoured me to subdue all the kings of the islands , in the ocean , with their most stout and mighty kings , even as far as norway , and the greatest part of ireland ; together with their most famous city of dublin . so far edgar . and after him , king conutus left a testimony of his sovereignty over the sea ; in this expression ; thou o sea art mine , &c. and from the testimony of the saxons , and the danes , we shall descend to the government of the normans , whereby many notable and clear proofs we shall find , as may be gathered out of that breviary of england , called dooms-day : rot. par. hen. . . edw. . . rich. . the tribute called danegelt , was paid in the time of the english saxons , which amounted to four shillings upon every hide of land , for the defending the dominion by sea. roger hoverden asserteth it was paid until the reign of king stephen ; and in the parliament records of king richard the second , it is observable that a custom was imposed upon every thing that passed thro' the northern admiralty ; that is , from the , thames along the eastern-shoar of england , towards the north-east , for the maintaining a guard for the seas . and this was not imposed only upon the english , but also upon all the ships of foreigners , paying at the rate of six pence a tun that passed by ; such ships only excepted that brought merchandize out of flanders to london . rot. par. rich. . part . act . seld. mare clausum , page . rot. fran. . hen. . rot. fran. . hen. . rot. par. edw. and it appeareth by publick records , containing divers main points , touching which , the judges of the land were to be consulted for the good of the common wealth ; that the kings sea dominion ▪ which they called , the antient superiority of the sea , was a matter beyond all contradiction amongst all lawyers of that age , and asserted by the determinations and customs of the law of the land ; and by express words of the writs and forms of the actions themselves . and this truth was not only comfirmed by the laws , but by our medals : there hath been a piece of gold very often coyned by our kings , called a rose noble , which was stamped on the one side of it , a ship floating in the sea , and a king armed with a sword and a shield , sitting in the ship it self , as in a throne ; to set forth the representation of the english king by sea. the first author hereof , was edward the third ; when he guarded his own seas with a potent navy , consisting of eleven hundred ships , at which time as at others , he marched victoriously thro' france . but of all that has been said , there can hardly be alledged a more convincing argument to prove the truth of all that hitherto hath been spoken , than the acknowledgment of the sea dominion of the kings of england ; when the agreement was made by edward the first of england , and phillip the fair of france ; reyner grimhald was then admiral of the french navy , intercepted and spoyled on the english seas , the goods of many merchants that were sailing to flanders , as well english as others , and was not contented with the depredation of their goods , but he imprisoned their persons , and delivered them up to the officers of the king of france . and in a very insolent manner , justified his actions in writing , as done by authority of the king his master's commission . this being alledged to be done to the great damage and prejudice of the king of england ; the prelates , peers , and the rest of the nation , exhibited a bill against reyner grimbald , and managed by the procurators on the behalf of the prelates , peers , and of the cities and towns through out england ; and also of the whole kingdom of england in general ; and by and with the authority , as is supposed , of the estates assembled in parliament ; with those were joyned procurators of most nations bordering upon the sea , throughout europe , viz. the genoeses . the catalonians . the spainards . the almayns . the zealanders . the hollanders . the freezlanders . the danes . the norwegians . the hamburghers and all these instituted a complaint against reyner grimbald , who was admiral of the french navy , in the time of the war , between philip king of france , and guy earl of flanders ; and all these complainants in their bill , do joyntly affirm , that the king of england and his predecessors , have time out of mind , and without controversie , enjoyed the sovereignty and dominion of the english seas , and the isles belonging to the same , by right of the realm of england ; that is to say , by prescribing laws , statutes , and prohibition of arms and of ships , otherwise furnished , than with such necessaries and commodities as belong to merchants , &c. also , that they have had , and have the sovereign guard hereof , with all manner of cognizance and jurisdiction , doing right and justice , according to the said laws , ordinances , and prohibitions ; and in all other matters which may concern the exercise of sovereign dominion in the said places . this is the declarations of the nations aforemention'd , and they did declare he was lord of the sea , &c. this is cited out of the parliament records ; and they did declare an acknowledgment of the sea dominion of our kings , made by those foreign and neighbour nations , who were most concern'd in the business , to the glory of our kings of england . mr. hitchcock , in the reign of queen elizabeth , presented a book to the parliament , concerning the commodity of fishing ; that the hollanders , and zealanders , every year towards the latter end of summer , do send out four or five hundred vessels , called busses , to fish for herrings in our eastern seas ; but before they fish , they ask leave of starbourough ; these were the words : care was also taken in king james the first of englands reign ; that no foreigner should fish on the english or irish seas , without leave first obtained ; and every year at the least , this leave was renewed from commissioners , for that purpose , appointed at london . and the kings of france have desired leave of the kings of england , for a certain time to fish on our seas , only for fish for his houshould , and obliged themselves in articles , that none of the fish , that was taken in the british seas should be exposed to sale in any market . in the seventh year of the reign of king james the first , the sovereignty of the british seas was strenuously asserted by proclamation ; and all persons excluded from the use of the seas upon our coasts , without particular licence ; the grounds whereof , you have here set down in the proclamation it self . a proclamation . touching fishing . james by the grace of god , king of great-britain , france and ireland , defender of the faith , &c. to all and singular persons to whom it may appertain , greeting . although we do sufficiently know by our experience , in the office of regal dignity ( in which by the favour of almighty god we have been placed and exercised these many years ) as also by the observation , which we have made of other christian princes exemplary actions how far the absoluteness of sovereign power extendeth it self ; and that in regard thereof , we need not yield account to any person ( under god , ) for any action of ours , which is lawfully grounded upon that just prerogative ; yet such hath ever been and shall be our care and desire , to give satisfaction to our neighbour princes and freinds in any action which may have the least relation to their subjects and estates ; as we have thought good ( by way of premonition ) to declare to them , and to whomsoever it may appertain , as followeth . whereas we have been contented since our coming to the crown , to tolerate an indifferent and promiscuous kind of liberty to all our friends whatsoever , to fish within our streams , and upon any of our coasts of great britain , ireland , and other adjacent islands , so far forth , as the permission or use thereof might not redound to the impeachment of our prerogative royal , nor to the hurt and damage of our loving subjects ; whose preservation and flourishing estate we hold our self principally bound to advance before all worldly respects : so finding that our continuance therein hath not only given occasion of over-great encroachments upon our regalities , or rather questioning our right ; but hath been a means of daily wrongs to our own people that exercise the trade of fishing , as ( either by the multitude of strangers , which do pre-ocupy those places , or by the injuries that they receive commonly at their hands . ) our subjects are constrain'd to abandon their fishing , or at least , are become so discouraged in the same , as they hold it better for them to betake themselves to some other course of living ; whereby , not only divers of our coast towns are much decayed , but the number of mariners daily diminish , which is a matter of great consequence to our estates , considering how much the strength thereof consisteth in the power of shipping , and use of navigation ; we have thought it now both just and necessary ( in respect that we are now by gods favour linealy and lawfully possess'd as well of the islands of great britain and ireland , and the rest of the isles adjacent ) to bethink our selves of good lawful means to prevent those inconveniences , and many others depending upon the same . in consideration whereof , as we are desirous that the world may take notice , that we have no intention to deny our neighbours the allies those fruits and benefits of peace and friendship , which may justly be expected at our hands in honour and reason , or are afforded by other princes in the point of commerce , and exchange of those things which may not prove prejudicial to them : so , because some such convenient order may be taken in this matter , as may sufficiently provide for these important considerations , which do depend thereupon ; we have resolved first , to give notice to all the world , that our express pleasure is , that from the beginning of the month of august next coming , no person of what nation or quality soever , being not our natural born subjects ▪ be permitted to fish on any of our coasts and seas , of great britain , ireland ▪ and the rest of the isles adjacent , where most usually heretofore any fishing hath been , until they have orderly demanded and obtained licenses from us , or such of our commissioners as we have authorised in that behalf , viz. at london , for our realms of england and ireland ; and at edenburgh ▪ for our realm of scotland ; which licenses our intention is , shall be yearly demanded , for so many vessels and ships , and the tunnage thereof , as shall intend to fish for that whole year , or any part thereof , upon any of our coasts and seas , as aforesaid , upon the pain of such chastisement as shall be fit to be inflicted on such offenders . given at our palace at westminster , the th of may , in the th year of our reign of great britain , anno dom ' . notwithstanding this proclamation , the netherlanders still proceeded in the way of their encroachment upon the seas , thro' the whole reign of king james , and were at length so bold as to contest with him , and quarrel his majesty out of his rights , pretending ( because of the long connivance of queen elizabeth ) that they had of their own a right , of immemorial possession . and in king charles the i's reign , a proclamation was published , for restraint of fishing upon his seas and coasts , without license , dated the th day of may , in the th year of his reign . this proclamation being set forth in the year , serv'd to speak the intent of those naval preparations , made in the year ; which were so numerous and well provided , that our netherland neighbours , were apprehensive of some great design in hand , for the interest of england by sea. as i might shew at large ( if it were requisite ) by certain papers of a publick character yet in being . but there is one which may serve instead of all ; and it is a very ingenious letter of secretary cokes , that was written to sir william boswell , the king 's resident , then at the hague ; the original whereof is still reserved among the publick papers : in which letter he sets forth , the grounds and reason of preparing that royal and gallant navy ; with the king's resolution to maintain the right derived from his royal progenitors , in the dominion of the british seas ; and therefore i here render a true copy of it , so far as concerns this business , as most pertinent to our purpose . sir , by your letters , and otherwise , i perceive many jealousies and discourses are raised upon the preparations of his majesty's fleet , which is now in such forwardness , that we doubt not but within this month , it will appear at sea. it is therefore expedient , both for your satisfaction and direction , to inform you particularly , what was the occasion , and what is his majesty's intention in this affair : first , we hold it a principle , not to be denied ( as it may be prov'd from undeniable record ) that the king of great britain , is a monarch at land and sea , to the full extent of his dominions ; and that it concerneth him , as much to maintain his sovereignty in thebritish seas , as within his three kingdoms ; because without * that , these cannot be kept safe ; nor he preserve his honour and due respect with other nations . but commanding the sea , he may cause his neighbours , and all countries , to stand upon their guard , whensoever he thinks fit . and this cannot be doubted , that whosoever will encroach upon him by sea , will do it also by land , when they see their time . to such presumption , mare liberum , gave the first warning-piece , which must be answer'd with a defence of mare clausum ; not so much by discourse , as by the lowder language of a powerful navy ; to be better understood , when over-strain'd patience seeth no hope of preserving her right by other means . the degrees by which his majesty's dominion at sea , hath of latter years been impeached , and then question'd , are as considerable as notorious . first , to cherish , and as it were , to nourish our unthankful neighbours , we gave them leave to gather wealth and strength upon our coasts , in our ports , by our trade , and by our people : then they were glad to invite our merchants residence , with what priviledges they would desire . then they offer'd us the sovereignty of their estates ; and then they su'd for license to fish upon our coasts , and obtained it under the great seal of scotland , which now they suppress . and when thus by leave , or by connivance , they had possess'd themselves of our fishings , not only in scotland , but in ireland and england ; and by our staple , had raised a great stock of trade , by these means they so increased their shipping and power at sea , that now they endure not to be kept at any distance : nay , they are grown to that confidence , to keep guards upon our seas , and then project an office and company of assurance , for the advancement of trade ; and withal prohibit us free commerce within our seas , and take our ships and goods , if we conform not to their placarts . what insolences and cruelties they have committed against us heretofore in ireland , in greenland , and in the indies , is too well known to all the world. in all which , tho' our sufferings , and their wrongs , may seem forgotten ; yet the great interest of his majesty's honour , is still the same , and will refesh their memories , as there shall be cause . for tho' charity must remit wrongs done to private men ; yet the reflection upon the publick may make it a greater charity to do justice on crying crimes . all this notwithstanding , you are to conceive , that the work of this fleet , is revenge , or execution of justice for these great offences past , but chiefly for the future , to stop the violent current of that presumption , whereby the men of war , and free-booters of all nations ( abusing the favour of his majesty's peaceable and most gracious government ) whereby he hath permitted all his friends and allies , to make use of his sea-ports , at a reasonable and free manner , according to his treaties ) have taken upon them the boldness , not only to come confidently at all times into all his ports and rivers , but to convey their merchant ships so high as his chief city , and then to cast anchor close upon his magazines ; and to contemn the commands of his officers , when they have required a further distance . but which is more intolarable , have assaulted and taken one another within his majesties * chamber , and within his rivers ; to the scorn and contempt of his dominon and power ; and this being of late years an ordinary practice , which we have endeavoured in vain to reform by the way of justice and treaties , the world , i think , will be satisfied , that we have reason to look about us . and no wise man will doubt , but it is high time to put our selves in this equipage upon the seas ; and not to suffer that stage of action to be taken from us , for want of our appearance . so you see the general ground upon which our counsel stands ; in particular , you may take notice , and publish as cause requires ; that his majesty by his fleet intendeth not a rupture with any prince or state , nor to infringe any point of his treaties , but resolveth to continue , and maintain that happy peace wherewith god hath blessed his kingdom , and to which all his actions and negotiations have hitherto tended , as by your own instructions , you may finally understand . but withal considering , that peace must be maintain'd by the arm of power , which only keeps down war by keeping up dominion ; his majesty thus provoked , finds it necessary for his own defence and safety , to re-assume and keep his antient and undoubted right , in the dominion of these seas , and to suffer no other prince or state to encroach upon him , thereby assuming to themselves or their admirals any sovereign command ; but to force them to perform due homage to his admirals and ships , and to pay them acknowledgments , as in former times they did . he will also set open ▪ and protect the free trade , both of his subjects , and allies , and give them such safe conducts and convoy , as they shall reasonably require . he will suffer no other fleets , nor men of war , to keep any guard upon these seas , or there to offer violence , to take prizes , or booties , or to give interruption to any lawful intercourse . in a word ; his majesty is resolved , as to do no wrong , so to do justice both to his subjects and friends , within the limits of his seas . and this is the real and royal design of his fleet , whereof you may give notice , as you find occasion , to our good neighbours in those parts , that no vmbrage may be taken of any hostile act , or purpose to their prejudice in any kind ; so wishing you all health and happiness , i rest your assured friend and servant . john coke . so what has been said is sufficient to prove the undisputable titles of the kings of england's sovereignty over the british seas ; and the necessity of maintaining and defending it : the conclvsion . to conclude , that by which hath been undeniably asserted , it doth evidently appear , that the kings of england ( by immemorable prescription , continual usage and possession ; and also by the acknowledgment of all the kings , princes , and states of christendom , and the laws of this kingdom , ) have always held the sovereign propriety of the british seas . — and his majesty by right of his sovereignty hath supream commands , and iurisdiction over the passage of his seas , and fishing therein beyond all contradiction . * and considering the nutural sight of these our seas , that interpose themselves between the great northern commerce , and that of the whole world ; and also , that of the east , west and southern climates ; and with all , the vast treasure that is got by fishing in them daily . it cannot therefore be doubted but his majesty , by reason of his great wisdom and virtue , and his admirable valour ; and the diligent care of his faithful and loyal subjects , may without injustice to any prince or state , be made the greatest monarch for wealth and command in the world ; and his people the most opulent flourishing of any in the universe . and the sovereignty of the seas being the most precious jewel of his imperial crown ; ( and next under god ) the principal means of our wealth , and safety ; all true english men , are bound by all possible means of honour and industry , to preserve it with the utmost hazard of their lives and fortunes . thus you see , what wonderful advantages may redound to the felicity and glory of this nation , if god gives us hearts and resolutions to vindicate those rights which are most impiously and injuriously invaded by our neighbours . finis . notes, typically marginal, from the original text notes for div a -e vid ▪ seld. mare clausum . . * and many dies . ‡ rich. . fitz herbert . tit. protection . . * rob. belknap , an eminent judg in his tim . affirmed , ● that the sea is subject to the king , as a part of this kingdom , or of the patrimony of the crown . ☞ object . ☞ ☞ * the king b the kingdom would promote trade ☜ c all intended for building men of war , as a guard to the kingdom . and if we had the mines of mexico and peru , in this kingdom , unless they were secured by force of arms , they would undoubtedly lie open to any that would invade us . ☞ ☜ ☞ ☞ ☞ observ . note , that we might make the same advantages of our fish abroad , did we encourage this national-fishery . ☞ note , if this national fishery were encouraged , there would undoubtedly acrue to the crown , above l ▪ per annum . ☞ observ . ☞ hugo grotius lib. . lib. . notes for div a -e guil. malmesb . lib. . cap. . am. part . page . vide edw. coke , part . fol. . and in con ▪ littleton ▪ sect. . fol. . note , p. . remark . rot. par. . edw. . membran . . ☞ ☞ * * ☞ * the downs . white-hall , april . . our style . * and for these reasons , stand the fairest of any people in the world , to be lords of the seas , and give : laws to the whole world by our naval-force ▪ a proclamation for observing the staple-port at camphire. scotland. privy council. approx. kb of xml-encoded text transcribed from -bit group-iv tiff page image. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). b wing s estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. b ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) a proclamation for observing the staple-port at camphire. scotland. privy council. scotland. sovereign ( - : william and mary) sheet ([ ] p.) printed by the heir of andrew anderson, printer to his most excellent majesty, edinburgh : anno. caption title. royal arms at head of text; initial letter. intentional blank spaces in text. dated: given under our signet at edinburgh, the eleventh day of august, and of our reign the fourth year, . signed: gilb. eliot, cls. sti. concilii. reproduction of the original in the national library of scotland. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the , texts created during phase of the project have been released into the public domain as of january . anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng maritime law -- scotland -- early works to . foreign trade regulation -- scotland -- early works to . scotland -- commerce -- netherlands -- early works to . netherlands -- commerce -- scotland -- early works to . broadsides -- scotland -- th century. - tcp assigned for keying and markup - spi global keyed and coded from proquest page images - mona logarbo sampled and proofread - mona logarbo text and markup reviewed and edited - pfs batch review (qc) and xml conversion rr diev et mon droit honi soit qui mal y pense royal blazon or coat of arms a proclamation for observing the staple-port at camphire , william and mary by the grace of god , king and queen of great-britain , france and ireland , defenders of the faith ; to macers of our privy council , messengers at arms , our sheriffs in that part , conjunctly and severally , specially constitute , greeting : forasmuch as by many antient contracts past betwixt the royal burghs of this our antient kingdom , and the town of camphire in zeland , and which have been approved by the kings our predecessors , the whole trade and commerce , as to the staple-commodities exported from this our kingdom , to the seventeen provinces of the nether-lands , has been settled and established at the said town of camphire , as being found by experience the fittest place for the scots staple , and there being in the former reigns of our royal predecessors many proclamations issued forth , requiring all our subjects traveling to the seventeen provinces of the netherlands , to export all staple-goods and commodities to the said staple-port , and to no other port nor place , and ordaining the laws and acts of parliament , and acts of the convention of the royal-burghs to be put to due and vigorous execution , for the full observance of the same : and we being informed , that of late , the staple-trade of this kingdom , hath been altogether diverted from the said staple-port at camphire , and carried to roterdam , and other places in the nether-lands , to the great prejudice and discouragement of trade , and contrair to the foresaid agreement with camphire , from presences that the said town of camphire neither could , nor would furnish sufficient convoyes , for convoying the saids ships , both out-ward and in-ward bound , from and to the said port now in the time of war. and now it being certified to us , that the magistrats of the town of camphire have engadged to the royal-burghs , that they will furnish sufficient convoyes , for securing of the trade betwixt that port and the firth and road of leith , twice in the year , viz. against the middle of september , and the middle of march yearly , commensing from the middle of september next ; and we being fully resolved , that all the standing laws and acts of parliament , and acts of convention of our royal-burghs , be put to full and vigorous execution , for the more due observance of the said staple-port for the future ; do therefore with advice of the lords of our privy council , hereby require all our subjects to give all due and exact obedience to the foresaids acts made for observing of the staple-por● discharging all merchants and skippers , or any other our subjects , to export forth of this our kingdom , any goods or commodities , that are or shall be declared to be staple commodities , to any other port or place in the nether-lands , but only to the said staple-port and town of camphire in zeland , under the pains and certifications mentioned in the saids acts of parliament , and acts of the convention of burghs , which pains and penalties , we ordain to be exacted from the transgressors with all rigour , and that they be further proceeded against , as our council shall find cause . and further , we with advice foresaid , do hereby require the general farmers , tacksmen , or collectors of our customs , and their sub-collectors , surveyers for the time being , that they make exact search and tryal of all staple goods and commodities that shall be hereafter transported forth of this kingdom , to any port of the seventeen provinces of the nether-lands , and take sufficient security from the merchants or skippers transporters thereof , that they shall transport the same to the said staple-port at camphire , and at no other place nor port within the said seventeen provinces , and that they shall not break bulk before their arrival thereat , conform to the acts of parliament , oblidging the said exporters to report certificats from the conservator , or his deputs at camphire , bearing , that the said staple-commodities were livered thereat , without breaking bulk ; and we do ordain the saids testificats , to be delivered in quarterly by the collectors at the several ports , to the agent of our royal-burghs for the time , to the end exact diligence may be done by him , against all the transgressors of the said staple , conform to the saids acts. our will is herefore , and we charge you strictly and command , that incontinent these our letters seen , ye pass to the mercat-cross of edinburgh , and whole remanent royal-burghs of this kingdom , and other places needful , and thereat , in our name and authority , by open proclamation make publication of the premisses , to the effect , our royal-burghs , and all merchants and other persons , may have timeous notice hereof , and give due and punctual obedience thereto , as they will be answerable at their outmost perril , the which to do , we commit to you conjunctly and severally our full power by these our letters , delivering them by you duely execute , and indorsed again to the bearer , and ordains these presents to be printed . given under our signet at edinburgh , the eleventh day of august , and of our reign the fourth year , . per actum dominorum secreti concilii . in supplementum signeti . gilb . eliot , cls. sti. concilii god save king william and queen mary . edinburgh , printed by the heir of andrew anderson , printer to their most excellent majesties , anno dom , the maritime dicæologie, or, sea-jurisdiction of england set forth in three several books : the first setting forth the antiquity of the admiralty in england, the second setting forth the ports, havens, and creeks of the sea to be within the by john exton ... exton, john, ?- . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a wing e estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) the maritime dicæologie, or, sea-jurisdiction of england set forth in three several books : the first setting forth the antiquity of the admiralty in england, the second setting forth the ports, havens, and creeks of the sea to be within the by john exton ... exton, john, ?- . [ ], p. printed by richard hodgkinson ..., london : . first ed. cf. nuc pre- . errata: p. [ ]. reproduction of original in british library. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic 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instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng maritime law -- great britain -- early works to . admiralty -- great britain. great britain -- history, naval. - tcp assigned for keying and markup - aptara keyed and coded from proquest page images - mona logarbo sampled and proofread - mona logarbo text and markup reviewed and edited - pfs batch review (qc) and xml conversion whitehall aug. . . let this book be printed . henry bennet . the maritime dicaeologie , or sea-jurisdiction of england . set forth in three several books . the first setting forth the antiquity of the admiralty in england . the second setting forth the ports , havens , and creeks of the sea to be within the jurisdiction of the admiralty . the third shewing that all contracts concerning all maritime affairs are within the jurisdiction of the admiralty , and there cogniscible . by john exton doctor of laws , and judge of his majesties high court of admiralty . london , printed by richard hodgkinson , printer to the kings most excellent majesty , . tudor rose scottish thistle fleur-de-lis depiction of irish harp to his royal highnes james duke of york and albany , earl of vlster , lord high admiral of england and ireland , &c. constable of dover castle , lord warden of the cinque-ports , & governor of portsmouth , &c. your royal highness having been graciously pleased to constitute me judge or president of the high court of admiralty , i held it my duty ( according to my poor ability ) to assert the just jurisdiction thereof , against those undue encroachments and usurpations , whereby the power of the lord high admiral hath been heretofore , and is at this present straightned , in decision of matters , relating to maritime affairs ; wherefore having some time since in those sad and distracted times , bestowed some labour in searching and perusing such of the records of our own , as well as forreign nations as i could meet with , wherein the just extent of the admirals jurisdiction is sufficiently and undeniably evidenced , together with the necessity of deciding all controversies about maritime affairs , according to the ancient sea customes , and the reason and directions of the civil and maritime laws . i held it no less my duty to recollect the said papers , and reduce them into some method for the clearing those objections which hitherto have been and still are made use of , either against the antiquity or extent of the lord high admiral his jurisdiction in maritime causes , or against the decision of them by the ancient sea customes , and the rules of the civil law : and as i have observed this nation hath happily flourished a long time , under that happy government of all land affairs by its municipal laws , practiced in the common law courts ; so hath it no less prospered and been enriched in its navies , trade , and commerce under that exact government which hath ordered and guided all maritime businesses and sea affairs , by the civil and maritime laws and customes ( corresponding , agreeing , and according with the laws of forreign nations , being suitable to the nature and negotiations of the people that are subject to them ) exercised and practised in the high court of admiralty : the design therefore that i propound to my self in the publishing this treatise , is , to shew how necessary and fitting it is , that the power and jurisdiction of this court should be no longer subject to such interruptions ; and how expedient it now is , that the rights and privileges of the same should be observed and kept , and the laws and ancient customes thereof , whereby all commerce and navigation is upheld ▪ should be precisely and strictly preserved and maintained : that all which may appear , i have set forth the antiquity of the lord admirals jurisdiction here in england , by ancient records of the tower : next the jurisdiction it self , and the extent thereof , as also the necessity and necessary use of it in divers respects . in all which i have endeavonred neither to eclipse the honour , power , or least right of the muncipall laws of this kingdome , nor in any sort to detract from the renown of the reverend and learned professors thereof , but hope i have manifested that the upholding of both jurisdictions , and restraining each of them to its proper limits and confines , will be more advantagious to this kingdome and the inhabitants thereof , then the suffering eitber of them to swallow up or devour the other . be pleased therefore to receive this unpolished work from the hand of your servant as the same is dedicated unto the protection of your royal self . the contents . the chapters contained in the first book of the maritime dicaeologie or sea jurisdiction . chap. . the antiquity of the admiralty in england set forth so farre as to prove the same to have been settled and continued in and before edward the thirds time , to whose time the statute of the of ric. . referreth , argued from the antiquity of the high-officers that exercised that jurisdiction in those times , and from their grants and patents . page . chap. . that these high-officers or admirals , or keepers of the seas , sea-coasts and ports , had like power and authority in them , and over them , as the keepers and governours of land-provinces had over them ; and had their maritime laws for guidance of their jurisdiction , both civil and criminal , as well as the other had their land laws for the guidance of theirs . page . chapt. . the beginning of sea laws , and the further antiquity of admirals , and their jurisdiction from thence argued , p. . chap. . of the laws of oleron , and the antiquity of the admiralty argued and inferred from the introduction of them into england p. . chap. . the ancient introduction of the sea laws argued , and inferred from the king of englands dominion over the british seas . p. . chap. . the antiquity of the admiralty argued and inferred from the defect and want of ability in other co●rts in deciding of maritime causes in those antient times . p. . chap. . of the exercise of the sea laws by the grecians , athenians , romans , italians , venetians , spaniards ; and by the admirals of naples and castile . p. . chap. . of the admiral of france and denmark . p. . chap. . of the admiral of scotland . p. . chap. . from the common acceptance of the sea laws in other nations is inferred the acceptance of them in england . p. . the chapters contained in the second book of the maritime dicaeologie , or sea jurisdiction . chap. . that the sea-jurisdiction and the land jurisdiction are , and so necessarily must be , two different and distinct jurisdictions , having no dependancie each upon the other . chap. . that the jurisdiction of the admiralty doth extend to all manner of ships , shipping , seafaring , and sea-tradingmen . p. . chap. . that the ports and havens , and creeks of the sea , are within the jurisdiction of the admiralty . p. . chap. . the arguments deduced out of the statute law , to prove the ports , havens , and creeks of the sea , to be within the bodies of counties , and not within the jurisdiction of the admiraltie , redargued . p. . chap. . the argument deduced from the first judgement at the common law , that the ports and havens of the seas are within bodies of counties , redargued . p. . chap. . that from the two other actions instanced in , to be brought against the parties suing in the admiralty court for a business done upon the ports , no concludent argument is deduced . p. . chap. . the argument deduced from two praemunires instanced in , to be brought against the parties suing in the admiralty for things done upon ports , redargued . p. . chap. . the book-cases and authorities brought to prove , that the admiral hath no jurisdiction upon the ports , creeks and havens , answered . p. . chap. . that the rhodian and other maritime laws were ordained as well for the decision of the differences happening upon the ports and havens , as upon the high seas . p. . chap. . that the laws of oleron , and other ancient laws of the sea were constituted and ordained as well for the decision of controversies happening & arising from things done upon the ports and havens , as from things done upon the high seas . p. . chap. . that by the ancient statutes of the admiralty settled before the last confirmation of the laws of oleron edw. . and articles of enquiry added thereunto , it is plain that the admiral hath jurisdiction upon the ports as well as upon the high seas . p. . chap. . that by the inquisition taken at quinborough secundo aprilis , anno ed. . annoque dom. . it is plain that the admiral hath jurisdiction upon the ports , as well as upon the high seas . p. . chap. . that by the ancient statutes of enquiry , translated out of french into latine by roughton , the admirals jurisdiction is upon the ports and havens , as well as over the high seas . p. : chap. . that the civil law is used and practised in all or most nations of christendome . p. . chap. . that the traffique and sea-trading is different from the bargaining and trading at land ; and that therefore in foreign nations they have their distinct judicatories guided by the distinct laws ; and that though the judicatories for land affairs have in divers nations divers municipal laws mixed with the civil law , yet the civil law is strictly used and practised in all admiralty courts , and is absolutely nece●●ary in the decision of all maritime causes & sea differences . p. . chap. . that by several of the laws of the titles selected out of the body of the civil law by peckius , for the determination of maritime causes , and divers other of the civil laws conducing thereunto , it doth appear that the ports and havens , and businesses done thereupon , are within the cognizance of the admiralty jurisdiction . p. . chap. . that by the records of the admiralty , it appeareth that the admiral had , and hath power and jurisdiction upon the ports and havens . p. . chap. . that by writs de procedendo out of the chancery , upon supersedeas from thence granted , the admiral is acknowledged to have jurisdiction upon the ports and havens . p. . chap. . that by consultations out of the courts of common law upon prohibitions thence granted , it is clear the admiral hath jurisdiction upon the ports and havens . p. . chap. . that the ports , havens , and harbours where ships do lye or ride at anchor , are not within the bodies of counties , but that the jurisdiction which the admiralty hath anciently had thereon , hath been by act of parliament reserved thereunto . p. . the chapters contained in the third book of the maritime dicaeologie , or sea jurisdiction . chap. . that all differences arising from contracts concerning maritime affairs ought to be tryed in the admiralty court , and the reasons thereof . page . chap. . the arguments deduced out of the statute of the th of r. . cap. . to prove that maritime contracts , made at land concerning maritime affairs , are not tryable in the admiralty court , answered . p. . chap. . that by the ancient statutes of the admiralty , and by the laws of oleron , it appeareth that contracts made at land of and concerning maritime affairs , were cognizable and tryable in the admiralty , both before , and even in the time of edward the third , whereunto the last mentioned statute maketh reference . p. . chap. . that by the ancient inquisition taken at quinborough in edward the third's time , it appeareth that the cognizance of contracts made at land concerning maritime affairs belonged then and before unto the admiralty court. p. . chap. . the argument deduced out of the statute of the th of r. . cap. . to prove the contracts made at land concerning maritime affairs , are not cognoscible in the admiralty court , answered . p. . chap. . the argument deduced out of the statute of the second of henry the fourth , cap. . to prove the contracts made at land concerning maritime affairs , are not cognoscible in the admiralty , redargued . p. . chap. . that the admiral by these statutes , was not barred the cognizance of maritime contracts , though made at land , made appear by the practice of those times , proved out of ancient records remaining in the tower of london . p. . chap. . that by other records out of the chancery , contracts made at land concerning maritime affairs are cognoscible in the admiralty court. p. . chap. . that by consultations granted from the courts of common law at westminster , after prohibitions formerly from thence obtained , contracts made at land of and concerning maritime businesses to be agitated and transacted at sea , beyond the seas , or upon the ports and havens , or of or concerning the same , are acknowledged to be cognizable in the admiralty , and have been thereunto by the same remitted . p. . chap. . that divers and several of the laws under the titles selected out of the body of the civil law by peckius for determination of maritime causes ; and other laws selected out of several other titles , as subsidiary unto them , do set forth most exactly the determination of controversies , which may and do daily arise from contracts made at land concerning matters to be done at sea. p. . errata . pag. . lin . . pro jesemuch lege gernemouth . pag. ead . pro norfolcae & suffolcae lege norfolciae & suffolciae . p. . l. , . & . pro prince lege province . p. . l. . pro the others lege others . p. . l. . pro find lege i find . p. ead . l. ult . pro ame●amuntis lege amertiamens . p. . l. . pro praecepti lege percepti . l. . pro percellas lege parcellas . l. . pro hinc lege huic , & l. . pro quandam lege quondam . p. . l. . pro our own lege their own . p. . l. . pro covent lege covenant . p. ead . l. penult . pro all wares lege ill wares . p. . l. . pro admiral lege admiralty . p. . l. . pro de tour lege de lour . p. . l. . pro did lege dit . l. . pro ia lege la p. . l. . pro in self lege . in it self . p. . l. . pro admiral lege admirals . p. . l. pro fidelum lege fidelem . p. . l. . pro saith lege he saith . p. . l. . pro marrii lege martii . p. ead . l. . dele & . p. . l. . pro concluded lege concludent . p. . l. . pro nostr . lege nobis . p. . l. . pro absquo compoto lege absque computo , & pro alique lege alique ▪ p. . l. . pro resided lege reside . p. . l. . pone verbum not . p. . l. . pro hoc lege hoc . p. . l. . pro thamases lege thamasis . p. ead . l. . pro courts lege court. p. . l. . pro implitaverit lege implacitaverit . p. . l. . pro marinarum lege marinariorum . p. . l. . pro fething lege fetching . p. . l. . pro contractus lege contractis . p. . l. . pro bodsworth lege dodsworth p. . l. . pro implitasset lege implacitasset . p. . l. . pro accipiendum lege accipienda . p. . l. . pro secla lege secta . p. ead . l. . pro coram vobis lege coram nobis ▪ p. ead . l. . pro panuclaneo lege pannulaneo . p. l. . pro elegantur lege eleganter . p. ead . l. ead . pro conditionibus lege condictionibus . p. ead . l. . pro sect . pone § . the introduction . although the soil of this kingdome of england , wherein we are so happily and in so plentifull a manner planted and settled , be so blessed with all sorts of fruits , that it hath been accounted and esteemed as the very seat of the goddess of fruit : quod solum ejus ab omni frugum genere ita beatum ut cereris sedem fuisse , dixerit orpheus : and been as it were the barn and storehouse of victuall and provision for the western empire ; occidentalis imperii quasi horreum & cella penuaria fuerit ; and doth abound with an innumerable multitude of tame and profitable cattle , flowing with milk , and full freighted ; and laden with wools , that it seemeth not to need the help of any other countreys or colonies , nor any of their commodities : yet let us withall consider how requisite and necessary the mutuall correspondency , commerce and trade hath been , and is , for the exchange of such goods and commodities as this aboundeth withall in so plentifull a manner , and may well spare , and others want , for those which those others abound withall in as plentifull a manner , and may spare and this wanteth ; and what plenty , store , and encrease hath arisen , and doth arise and arise and accrew to all , and how much they have been and are enriched thereby . and it is not unknown what succour and relief this nation , though so plentifull , hath oftentimes had and received from foreign nations , by the importing even of such commodities as this nation hath at other times abounded withall , and doth generally in a most plentifull manner abound : and the like succour no doubt other nations have received from hence , and one from another . hence it is that pliny saith 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , mercium commutatio victus causa inventa fuit ; this commerce and trade of exchanging commodities for commodities was invented for mans livelihood : diversas igitur gentes commercio ita miscuit ut quod genitum esset usquam , id apud omnes gentes natum esse videretur : commerce therefore hath so mingled divers nations one with another , that whatsoever is begotten anywhere should seem to be brought forth everywhere . and it is most of all to be considered , if this correspondency , commerce , and trade , should not be upheld , maintained , and continued , how the shipping , navage , and navigation of this kingdome ( the wooden walls thereof ) should be sustained , since the benefit and profit raised and gained by such commerce and trade , is the only incitement and encouragement to merchants and owners of ships to build them , and unto all masters of ships , pilots , and other mariners to sail , serve , and be employed in them , and to others to addict themselves to that course of life , to be trained and brought up therein , for the obtaining of skill , knowledge and perfection in navigation . and we may wel be assured , that if this benefit should cease , few or no ships at all would be built by private men in the time of peace , and but few by the publique for the service of warre in the time of warre ; and those built in the time of peace would lie by the walls and rot , their tackle and furniture be decayed and wasted , their captains , commanders and mariners unaccustomed to the seas and navigation , or else unskilfull and unexperienced in sea affairs , by which means this nation would lye open to the violence of other nations who envy its prosperity . if then the loss or discontinuance of the trade , traffique and commerce of this kingdome with other kingdomes , nations and commonwealths , may prove so dangerous , how necessary will it be to keep and preserve the laws of nations civil and maritime , the very laws of traffique , commerce and trade , whereby the same ( withall requisites thereunto appertaining ) are upheld and maintained compleat and perfect , which is a point i must leave to be considered by my loving friends the merchants of england , owners of ships and vessels , and sea-trading men that will spare but so much time as to read over this small treatise ! the maritime dicaeologie , or sea-jurisdiction . chap. i. the antiquity of the admiralty in england set forth so farre as to prove the same to have been settled and continued in and before edward the third's time , to whose time the statute the of ric. . referreth , argued from the antiquity of the high-officers that exercised that jurisdiction in those times , and from their grants and patents . for the antiquity of the admiralty some have been of opinion , that it had its rise , and received its first beginning but in edward the third's time ; but from whence this opinion should arise , or what should beget the same , i know not , unless its exceeding flourishing at that time set a greater mark upon it , then all its proceedings and employments for a long time before had done . some have derived its original from edward the third , upon this ground , that he in the th year of his reign , caused an inquisition to be taken at quinborough , by persons which he caused to be called from severall maritime parts of this land thither , to consider of , and agree upon such articles , as should be necessary and fit for the enquiry , and making presentment of all such crimes and offences as should be committed upon the seas , or upon any port , harbour , haven , or creek of the sea , conceiving that thereupon the admiralty court was then set up , and not before . to take away this last conceipt in the first place , and remove this opinion , i shall from that th year of edward the third , look backwards unto what was done in all his time , and then by degrees derive its originall farre further upwards , by so many admirals patents , and records of the tower ( which i have seen and perused ) as shall only serve to set forth , and prove the continued settlement of that jurisdiction all his time , and from many years before without endeavouring a perfect catalogue of all such admirals upwards , as i find amongst those records mentioned , and set forth , it making little to my intent , or purpose , more then to enlarge that which i study to be brief in . but he that will be curious therein , may find as well those that were both in and before edward the third's time briefly set down in sir henry spelmans glossarie under the title admiral , pag. . as those that have been from the said edward the third's time unto the th year of king james , from which time the rest that have been since constituted , are easily collected . those then which serve to my purpose are these . i finde that before the th of edward the third , a patent of that office of admiral was granted to guy de bryenne ad partes occ●●●entales , anno ed. . and another to john nevill ad partes boreales , anno ed. . and another to john nevill and guy de bryenne then knights the same year , both joyned together in one patent . and another to robert de ashton ad partes occidentales anno . ed. . and another to nich. t●mworth ad partes boreales anno eodem . and another to ralph spignevell for the keeping the town of dover , the cinque-ports , and the admiralty , ad partes australes , boreales , et occidentales anno ed. . next i shall here set forth a patent at large , granted to robert de herle anno ed. . by which patent it will plainly appear , that the office of the admiral was then accounted an ancient office , and had an ancient , different , and distinct jurisdiction from the municipall lawes of the land. the patent in the tower roll is thus set forth : rex universis et singulis vicecomitibus , majoribus , balivis , ministris , dominis , magistratis , et marinariis navium , ac aliis fidelibus suis , tam infra libertates , qua extra , ad quos , &c. salutem . sciatis quod nos de circumspectione et fidelitate dilecti et fidelis nostri roberti de herle plenius confidentes , constituimus ipsum admirallum nostrum omnium flotarum , navium australium , borealium , & occidentalium , quamdiu nobis placuerit , dante 's ei plenam tenore praesentium potestatem , audiendi querelas omnium et singulorum de hiis quae officium admiralli tangunt , & cognoscendi in causis maritimis , & justitiam fa●iendi , et excessus corrigendi , et delinquentes juxta eorum demerita castigandi , puniendi , incarcerandi , et incarceratos qui deliberandi fuerint , deliberandi , et omnia alia quae ad officium admiralli pertinent faciendi , et ad alios , quos ad hoc idoneos noverit , quoties idem robertus vacare non poterit , ad omnia praemissa , et singula faciendum loco suo substituendum et deputandum prout ei melius videbitur expedire ; et ideo vobis mandamus , quod eidem roberto , et ejus deputato , in praemissis omnibus & singulis faciendis , et exequendis , intendentes sitis , et respondentes , quotiens , et prout idem robertus , vel ejus deputati vobis vel alicui vestrum fecerint , vel fecerit ex parte nostra ; in cujus , &c. t. r. apud westmonasterium . per ipsum regem die jan. now amongst those that have been of opinion that the jurisdiction of the admiralty had its beginning in edward the third's time , i find mr. lambert to be one , who in his archeion saith , that he thinketh that the decision of maritime causes was not put out of the kings house , and committed over unto the admiral , untill the time of edward the third ; and his reason is , for that ( as he saith ) he never heard mention of it before the second year of richard the second , who in his th year made a statute to restrain the admiralty from medling any further then it used to do in the time of his grandfather edward the third ; where he heard mention of it in the second year of richard the second , he mentioneth not . but he must give me leave , ( who by this record last mentioned , and by divers others have found mention made of it before such time as he heard mention of it , and for divers other reasons ) to believe this court to be farre more ancient then he thought it to be . for if this record be well observed , it will plainly appear that the office of the admiralty was an ancient office at the time of the grant , which may easily be gathered out of these words : dante 's ei plenam tenore praesentium potestatem audiendi querelas omnium et singulorum de hiis quae officium admiralli tangunt , &c. and likewise out of these , et omnia alia quae ad officium admiralli pertinent , &c. from whence it appeareth that there was then a known office of the admiral , not then lately instituted and ordained . and it will more plainly appeare , if we look further back to the grants and patents made unto others throughout this kings reign , and other kings reigns before him , which being deduced out of the tower records , will shew this office and place to be of a farre greater antiquity : i shall therefore steer my course by degrees backwards towards the confines of the antiquity of this jurisdiction , although hopeless to arrive there ; yet i shall go as farre by the antient records as will serve for my purpose . next before this robertus de herle , john de bello-campo frater tho. de bello-campo , com. warwicensis , eques primae fundationis ordinis periscelidis constitutus fuit admirallus ad partes tam boreales quam occidentales angliae , . julii anno ed. . qui fuit eodem tempore dom. gardianus quinque portuum , constabularius turris lond. et castri dover , et obiit in possessione dictorum munerum . decembris eodem anno . robertus morley , baro de hengham constitutus fuit admirallus ad partes boreales martii , anno ed. . & johan . de bello-campo fuit eodem tempore admirallus ad partes occidentales qui eandem dignitatem obtinuit anno ed. . wiliel . de bohun comes northampt. constitutus fuit admirallus ad partes boreales . martii anno ed. . & eodem tempore hen. du●● lancast . constitutus fuit admirallus ad partes occidentales , & proximo sequente anno in ejus loco tho. de bello-campo comes warwicensis . robertus de ufford comes suffolciae , quum constitutus fuisset admirallus ad partes boreales . maii , anno ed. . continuatus fuit admirallus . feb. anno ed. . & rich. fil . alani comes arund . qui constitutus fuisset admirallus ad partes occidentales . feb. anno ed. . continuatus fuit admirallus . feb. anno ed. . robertus morley baro de hengham fuit admirallus ad partes boreales in anno ed. . & in anno ejusdem regis per literas patentes constitutus capitaneus , & admirallus singulorum portuam , & locorum per costram maris versus partes boreales quamdiu &c. t. r. apud eltham . aprilis . et johannes de monte gomeri eodem tempore constitutus fuit capitaneus , & admirallus , &c. tam quinque portuum , quam aliorum portuum , & locorum per costram maris versus partes occidentales quamdiu , &c. t. r. apud eltham . aprilis . walterus de manney in anno . ed. . fuit admirallus ad partes boreales , ut constat , quod eodem anno idem walter . manney tam nuper constitutus capitantus & admirallus , &c. hugonem venables , & michaelem chylde conjunctim & divisim loco suo deputavit &c. et rex ibi confirmavit t. r. apud weston . sept. et eodem anno barthol . de burghersh fuit capitaneus & admirallus ad partes occidentales . johannes normico constitutus fuit capitaneus et admirallus omnium portuum et locorum &c. versus partes boreales . jan. anno ed. . et rogerus de hengham constitutus fuit capitaneus et admirallus , &c. tam quinque portuum , quam aliorum portuum et locorum , &c. and in the first year of the same kings reign , johannes parbroun constitutus fuit capitaneus et admirallus , &c. versus partes boreales , per ipsum regem et consilium aprilis . et wares de valoniis versus partes occidentales eodem die . and these are those admirals , but not those only ( as will hereafter appear ) to whose office and power the patent of robert de herle of the of edward the third relateth in the dante 's ei plenam tenore praesentium potestatem audiendi querelas omnium et singulorum de hiis quae officium admiralli tangunt , et cognoscendi in causis maritimis , et justitiam faciendi , &c. et omnia alia quae ad officium admiralli pertinent faciendi , etc. prout in dictis literis . these had their patents from the same king , as appeareth by their patents themselves in the tower rolls : rex omnibus ad quos , &c. salutem : sciatis quod nos de fidelitate probatâ , et circumspectione providâ dilecti et fidelis nostri rogeri de hengham plenariè confidentes , constituimus ipsum rogerum capitaneum et admirallum , &c. and so had the last mentioned , constituted in the first year of his reign : rex omnibus ad quos , &c. salutem . sciatis quod nos de circumspectione et fidelitate dilecti nobis johannis parbroun confidentes constituimus ipsum capitaneum et admirallum , &c. t. r. apud rocksborough die jan. and by the same patents they have potestatem castigandi , puniendi , &c. prout justum fuerit , et hactenus consuevit , &c. in cujus , &c. t. r. apud stanford aprilis , et mandatum est omnibus et singulis , &c. now to remove the first opinion , it is plain hereby that this office of the admiral had not its beginning in edward the third's time , the patents themselves , all of them , as well these of the first year , as the other , determining the power thereby granted with prout justum fuerit , et hactenus fieri consuevit : so that it plainly appeareth by the words hactenus consuevit , that this had been a settled office before the granting of his very patent in the first year of edward the third : nor was this , and those of his time the first patents that determined the admirals power , with a prout justum fuerit , et hactenus fieri consuevit . for in the th year of edward the second i find robertus leybourne constitutus fuit admirallus versus partes boreales : et nicholaus kyrel versus partes occidentales anno ed. . both which patents conclude with the same words ; prout justum fuerit , et hactenus fieri consuevit . in the th year of the same kings reign robertus leybourn censtitutus fuit admirallus navium regis super mari occidentali , et robertus battalius , ( alias batallus ) de singulis portibus versus austrum . then do i find some styled admirals , and others styled and constituted by other titles . as john athy stiled by the title of capitaneus navigii , in the th year of edward the second . et nich. kirel constitutus fuit admirallus , &c. versus partes occidentales . and in the th year of edward the first , viz. symo de monte acuto assignatus fuit capitaneus et gubernator flotae , navium , &c. and in the year next preceding viz. in the four and thirtieth year of edward the first , gervasius alard constitutus fuit capitaneus et admirallus flotae , navium , quinque portuum , et aliorum portuum , à portu dover per costram maris versus partes occidentales , usque in cornubiam , atque totius comitatus cornubiae . and edwardus charles versus partes boreales usque ad villam de berwick super tweed , et ejusdem villae . johannes botetort constitutus fuit custos regis portuum maritimorum versus partes boreales . willielmus leybourne constitutus capitaneus marinariorum , &c. idem constitutus fuit admirallus angliae . now though mr. lambard did think the decision of maritime causes was not put out of the kings house untill edward the third's time , because ( as he saith ) he found no mention of an admiral before richard the second's time ; yet doth it plainly appear by the beforementioned patents , that there were several admirals , even up unto the three and twentieth year of edward the first . though some of them went without that title , yet had they the same office , and the same power , which together with the prout hactenus consuevit , wherewith the before mentioned admirals patents are terminated and concluded , hath guided me further backwards , and led me to many others of more ancient times , that have exercised that office under divers other titles , which bear the same signification , though not the same appellation ; nor do these former titles ( in my judgement ) seem to carry any less power and authority under them , then doth the title of admiral , or capitaneus et admirallus ; but seem rather to have conveyed unto the admirals so styled , which have succeeded in that office , such power and authority as they have since exercised and used . and here i shall set forth the parties that formerly bore this office , and by what names and titles they bore the same , before the title of admiral was added thereunto . in the two and twentieth year of the said king edward the first his reign , willielmus leybourne constitutus fuit capitaneus nautarum et marinellorum , quinque portuum et membrorum eorundem . et similiter jesemuch bayon hiberniae , walliae , et omnium aliorum portuum et locorum , in quibus naves et battalli applicant infra regnum et potestatem regis , etc. attested by the king at westminster the seventh of june . in the th yeer of henry the third tho. de moleton constitutus fuit custos maris , portuum maritimorum et maritimarum partium : and in the same patent , the barons and bayliffs of the cinque-ports , and all others of or belonging unto the maritime parts , are commanded to be attending , aiding and assisting unto the said tho. tanquam custodi maris , et maritimarum partium ; attested by the king at canterbury . in the th year of the same kings reign hammon de crevequor , et wollerandus tutonick habuerunt custodiam quinque portuum , cum costrâ maris à portu de hastings usque ad portum de la-pool , etc. and their patent is attested by the king at canterbury the th of february . in the th year of his reign richardus augillan constituts fuit custos marinae reg . norfolcae , suffolcae , cum omnibus pertinentiis suis : sc . erewell , oreford , dunwitch , gernemouth , and lynne . and the king in their patents doth command all men belonging unto these coasts to be attendant and obedient unto them in all things thereunto belonging . the patent runneth in these generall words : rex omnibus de costra maris norfolcae , et suffolcae , salutem : sciatis quòd concessimus richardo aguillan marinam nostram norffolcae et suffolae cum omnibus pertinentiis suis : sc . erewell , oreford , dunwitch , gernmouth , et linn , custodiend . quamdiu nobis placuerit ; et ideo vobis mandamus quòd ei in omnibus , quae ad dictam marinam pertinent , intendentes sitis et respondentes . t. r. apud westmonast . die octobris . in the same year commisit johanni filio roberti & ohoeli de insulâ , partes & marinam com. northumbriae custodiend . quamdiu domino regi placuerit ; & mandatum est vicecomiti northumbriae , quòd proclamari faciat pro totam ballivam suam , quòd omnes eis in omnibus quae ad praedictas partes & marinam pertinent , intendentes sint , & respondentes . t. r. . aprilis . in his eighth year commisit johanni de baosis marinam suam de cornub. & devon. custodiend . quamdiù ei placuerit . et mandatum est omnibus per costram maris , cornub. & devon. quòd ei in omnibus quae ad marinam illam pertinent intendentes sint , & respondentes . t. r. apud lond. . die septembris . eodem modo scribitur omnibus de costra dorcest . pro radulpho de germam , qui illarum partium marinam habuit . richardus de lucy dicitur habuisse marinam angliae augusti . so that it appeareth that those that bore this office of the admirall , before that title was used , were sometimes called capitanei navigii , in respect of the great power they had over all manner of shipping : for 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , navigium , with the french , toute sorte de navire ; with the italian , navilo , vassello ; with the german , ein jede gattung eines schiffs ; with the spaniard , nave del navio , is omne genus navium quo navigamus , what sort of ship soever wherewith we sail . navigium est genus continens naves , rates , & caeteras species quibus ad navigationem utimur , saith spieg. and thus shall we find the word used wheresoever we read it : jamque qui aedificare velint fabros & architectos advocent ; qui navigia mari concreders , gubernandi peritos qui bella moliri , armorum & militiae gnaros ; & , ne singula prosequar , ei studio quòd quis agere velit , consultissmum rectorem adhibeat ; cicer. de nat deorum . so general is the word for all manner of shipping , that it is in that regard used for navigation it self : sumitur tam pro navigatione ipsa , quàm navi quacunque , saith oldendorp . and so it is used sometimes in the civil law : aliis mercibus emptis & in navem missis , ipse in syriam per navigium proficiscatur . sometimes they were called capitanei & gubernatores flotarum , navium , in regard of their employment , in ordering and ruling of the kings fleet , employed either against an enemy actively , or for the defence of the kingdome whensoever disturbed by an enemy ; and for his power in gathering together of whatsoever ships he thought fitting for raising of navies , or supply of the defects of those formerly raised , and the like . sometimes they were called custodes maritimarum partium , for that it was his office and duty to see all the maritime parts and borders of the sea sufficiently provided of all things needfull and necessary for the defence of the nation against a forrain enemy ; and so likewise furnished with all manner of necessary provisions , for the entertainment of our own ships , and mariners , and reliefe of the kings friends which should touch there in distress , that his subjects might receive the like upon the like occasion . sometime capitanei nautarum & marinellorum , for the power that they had over all the sea-faring men , in ordering them , and deciding differences which should fall out amongst them , or between them and others with whom they dealt , or had to do : and as a captain and commander ought not to suffer them to wrong any , nor to be wronged by any . sometimes custodes maris & maritimarum partium , in regard they were to see to the furnishing of the kings ships at sea , with men , victuall , tackle , furniture and ammunition ; sometimes adding to the strength of the navy , by furnishing out more ships from the ports to the sea , ready provided with necessaries , such as they found fitting for that service ; and sometimes withdrawing , or ( if present in the navy ) discharging others as occasion required . and as well to see to the ordering business upon the sea , as upon the coasts and borders of the sea . sometimes they were styled custodes marinae regis , in respect they had the keeping , ordering , ruling and disposing of all maritime business , and sea affairs , which belonged unto the king himself , and concerned his kingdomes generall good , or his subjects particular benefit , and quiet , either amongst themselves , or with forreigners . which title , as it was the first , i find born by the chief officers for the ruling and ordering all maritime affairs , within such limits as were assigned them by the king : so i conceive it comprehends as much power as the title of admiral ; and either of these as much as any of the rest , and indeed as much as all the rest : and yet i conceive too , that any one of the rest intentionally , and as it was used , comprehended as much as either of these : but i shall not here dispute what the power , authority , or jurisdiction of any of these officers was ( which doubtless was the same ) but shall deferre that to another head more proper for the debate . i have here , so farre as my line would reach , and my small skill in records direct and guide me , followed the antiquity of these highest sea-officers , wherein , without doubt , i have in my way mist many things that might have been pertinent to that i aime at : yet have i ( as i conceive ) by records discovered a continued imployment of such officers , without any intermission , or cessation at all of that office , even from the latter end of king edward the thirds time , up to the eighth year of king henry the third : and so i have hitherto argued the antiquity of the jurisdiction , from the antiquity of the officer . what this jurisdiction anciently was , will hereafter be disputed ; in which dispute the antiquity of the admiralty will be further discovered . chap. ii. that these high officers and admirals , or keepers of the seas , sea-coasts and ports , had like power and authority in them , and over them , as the keepers and governors of land-provinces had over them ; and had their maritime lawes for guidance of their jurisdiction , both civil and criminal , as well as the other had their land laws for the guidance of theirs . the next thing i observe , is that the preceding officers , which this [ prout hactenus ] led me unto , are most of them rendred unto us under the titles of custodes : as custos maritimarum partium ; custos maris & maritimarum partium ; custos portuum cum costrâ maris ; custos marinae , custos portuum & marinae : most of which officers so styled , which i had formerly met with amongst the records of the tower , i met with again in mr. seldens book de dominio maris , quoted out of the same records ; who from thence , and some other good and sound reasons there exprest , inferreth quod apertè constat reges angliae praefectos constituere solitos , qui mare anglicanam custodirent , seu ejus custodes essent , sive praefecti , non aliter ac provinciae cujuscunque terrestris . they were to be keepers of the seas in such wise , as others were of every land province . primò autem ( saith he ) mari , maritimae , & marinae ( idque ubi his vocibus , non regio solùm maritima , sed ipse etiam oceanus britannicus planè continetur ( quod non semper fieri fatemur ) praeficiebantur qui tuerentur & custodirent nomine custodum ( ut interdum ) navium , frequentius verò maritimae sensu jam dicto . to which he addeth another further reason , and saith , that primaria commitiorum parliaementariorum ratio anno regis edvardi tertii decimo quarto , est ; de treter sur la guard de la pees de la terre , de la marche d' escoce , & de la mier● ut tractaretur de custodiâ pacis terrae , & limitis scotici , & maris : from whence he observeth , quod non alia , tutelae maris quàm telluris seu terrestris provinciae , habebatur ratio . and he gathereth further ex tabulis ejusdem regis parliamentariis , seu consultationibus ordinum regni ( as he saith ) held upon the same matter , ut dum de la saufegard de la terre , seu custodia seu tutela telluris sive insulae , & de la saufegard de la mere , seu de custodiâ maris consilium pariter ineunt , tam hujus dominium , quam illius ad regem suum pertinere , à majoribus edocti manifestò testari videantur . for ( saith he ) non de classe solùm agaunt , quâ hostibus per mare resisteretur , sed de ipso mari tuendo , aequè ac de tutelâ , insulae , adeoque de jure in utroque regis avito defendendo , where he maketh two distinct dominions of the land and sea , and the ancient right of either of them , to be defended and kept ; and there sets forth divers who had the defending and keeping thereof in the second of richard the second , and in the time of the three henries succeeding him , with many other things there worth noting and observing . he observes further in the same chapter the common and received acceptance of this terme custos amongst the english in other governments , both of this land , and other islands , and even at that time when the name or terme of custos maris was most frequently used ; and he instanceth in the governours of ireland in the time of king john and edward the third , who were then severally styled custos hiberniae . he instanceth likewise in john duke of bedford , and humphry duke of glocester , who had , one at one time , and another at another , the government of england , when king henry the fifth was absent in france , who were called custodes angliae , quod ( saith he ) tum in historiis , tum in tabulis publicis saepissimè occurrit . and likewise in e arthur prince of wales , who was made custos angliae , when king henry the seventh was gone out of england . and in peter gaveston , who was custos angliae , edward the second being busied in france . and also the in governours of f the isles of jersey and gernsey , who of antient times were custodes of those islands , as they are now called gubernatores , custodes , and capitanei . and seeing it is so , how can it be ( saith he ) that we should not think that our ancestors used under the same notion or terme of custos & custodia , the custodes maris , and the custodes insulae , &c. quod cum ita sit , quomodo fieri potest ut non eadem notione vocabuli custodis & custodiae majores nostros usos esse existimemus in custodis & custodiae maris nomine , quâ in custodia insulae , & caeteris jam dictis dignitatibus uti solebant ? sc . in hisce omnibus dominium imperiumque singulare praeficientis apertissimè ita signatur includiturque , adeo ut non magis authoritas in personam quae praeficitur , quam rei custodiendae dominium nomine hoc planè innuatur . if then there were custodes maris , marinae , portuum , & maritimarum partium , and that in such manner as of a land prince , non aliter ac provinciae cujuscunque terrestris ; then will it necessarily follow that if a prince , that ever was civilized by the dominion and rule of a civil governor or governors ( for by such means and no other are all nations , princes , islands , and the like become civilized and ordered ) could not so continue civilized and ordered without rules and laws for every mans demeanour to be guided by . that the seas having anciently been used for maritime affairs , for free and peaceable traffique , and commerce , one nation with another which be friends , at unity , and in concord ; and for martial fleets and navies for the defence of every kingdom against an enemy : and so antiently under the dominion of civil princes ( as under their dominion and government of a civil land province ) must necessarily have had settled and known laws , suited and fitted for such their dominion and government , which could be no other then the maritime laws so agreeable unto sea-affairs , and so commonly and antiently accepted , and agreed unto by most nations and kingdomes which have had such free traffique and peaceable commerce upon , and by them , one with another , to guide and direct these custodes in the ministring of justice in sea-businesses , as well as the governors of land provinces have had their land laws for the ministring justice in land-affairs . hence spelman in his glossarie , having reckoned up all the admirals from the eighth year of henry the third , unto the th year of king james , saith , nos de munere caduco aut extraordinario non agimus , at de summo , stationarioque magistratu , qui universae marinae reipublicae praeest , suoque●oro & amplissima jurisdictione tam in causis civilibus judicandis , quam in classe regiâ gubernandâ insignitur . and further saith that we had the name of this magistracy , viz. custos maris , marinae , & maritimarum partium from the romans , as may be gathered from cicero in epistol . ad attic. ubi ait ; vult me pompeius esse quem tota haec maritima ora habeat 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , i. e. speculatorem & custodem . chap. iii. the beginning of sea-laws , and the further antiquity of admirals , and their jurisdiction from thence argued . dionysius ascribeth the first making of sea-laws to the phenicians , pliny to the carthaginians ; but according to the observation of most authors out of most ancient monuments , our sea-laws have had their beginning and original from the island rhode . rhodiae leges navalium commerciorum , sunt ab insula rhodiae cognominatae , in qua antiquitùs mercatorum usus fuit : an island scituate in the carpath . sea , part of the mediterranean , which being but a small island , but yet very populous , the inhabitants , yea the very indwellers thereof chose rather to live by water then by the aire , and to seek their subsistence , and provide for their sustenance by constant sayling , and continued navigation ; by which means they encreased their strength , and augmented their power at sea , to the terrour of all their enemies , the hinderers of their traffique , and quelling of all pirats the disturbers of their peace . they multiplyed their riches with an infinite increase , and advanced their wealth to the very height . and these principal ground-works being laid , and chief foundation settled , that which makes principally to the purpose in hand , they grew so exquisite in their navigation , so skilfull and cunning in their traffique , and so expert in the discipline of both , that as time now required , they framed edicts to be instituted , decreed , and published , to be established and observed for laws , for the guidance of all men according to the most exact rules of equity in all manner of sea-businesses ; insomuch that all cities and nations near unto them , therein sought knowledge of them ; and to the further encrease of their riches , by a ready and willing tribute , still exchanged wealth for wisedom , and thought not that they paid any what too dear for the gain of such knowledge , and to be directed in the rules of such discipline and laws as might settle such a constant determination of every mans just right at all times , in all manner of traffique , trading and employment , upon and by the seas , as the islanders had , which laws and discipline did afterwards spread to further nations , and the very emperours of rome did successively referre all seafaring debates and controversies to the decrees , determinations , and judgements of the rhodian law. leges nauticas dicimus quas rhodii condiderunt ; quorum disciplinam navalem & ut strabo ait , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 admirabilem , omnes populi libenter , etiam romanus sequebatur . and eudaemon nicomediensis making his complaint to antoninus , thus : 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 : domine imperator antonine , naufragium in italiâ facientes , direpti sumus à publicanis cyclades insulas habitantibus . antoninus answereth thus : 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . ego quidem mundi dominus . lex autem maris , lege id rhodiâ , quae de rebus nauticis praescripta est , judicetur , &c. hoc idem quoque divus augustus judicavit . yet be there severall other titles in the body of the civil law , which set forth several decrees and laws particular to the seas , and sea-faring matters to be observed : and vlpian , a father of the law , having set down some of them , gives his reason why they should be precisely kept and observed ; quia ( saith he ) ad summam rem-publicam navium exercitio pertinet . these rhodian laws , what of them are left and inserted in the pandects , and their defects being supplyed by the code , and novell constitutions , and their rents repaired by the fair applications and candid expositions of the old roman lawyers , and other authentique authors , which have since wrote of matters of that nature , still give the rule and guidance to all seafaring business , of what nature soever , throughout all , or well nigh all europe , and have never been opposed , obstructed , or interrupted , but by such as least understood them . and these severally had their original from that island of sea-faring men , though they have been by successive observations , collected and gathered together , as most just and equal for the determination of every mans just due and right in all their maritime affairs , whether they concerned complaints , offences criminal or civil , sales or assecurations of ships , accounts , covenants , or contracts by charter-party or otherwise , exchanges , freights , hyres , or money lent upon casualty or hazard at sea , causes of reprizals , letters of marque , or concerning lading or un●ading , and whatsoever other things else among seafaring men , either of one or several islands or nations , done or to be done , either on or at the sea , concerning sea-trade . now who shall be imagined to have the supreme governance and power over these seafaring men , and the cognizance of their maritime causes , to judge them according to these sea-laws established amongst them , and duly to put them in execution ? certainly these laws were hatcht of order , and could not be bred up to disorder : seamen surely had amongst them a supreme governor , one or some that swayed and ruled the rest in the composure of them ; and so must they necessarily have in the dispensing of them , and administring justice according to them . now i hope it will not be said that the maritime and seafaring men contrived and made laws amongst themselves , which concerned themselves , their traffique , and trade ; and when they had done , gave them over into the land men hands ( which could not possibly understand the grounds and depth of them ) with a power to put them in execution , and so give others a power over themselves , which before had nothing to do with them . if they would so have done ( which no man will judge ) yet it is not to be believed , that in this island of rhodes they could , which consisted generally of seafaring men . who should then be fit to be chiefest in managing these laws , but such a one as had chiefly a hand , and was most dexterous in making of them : so that i doubt not , but that we may boldly say and conclude , that as these laws were composed , gathered , and collected by maritime and seafaring men , so were they put in execution by the principal governor and ruler of them : and so had they both birth and growth under the jurisdiction , rule , and governance of the chief captain , commander and governor over all these seafaring men and shipping . and as causes encreased and multiplyed , so did the laws , according to the nature of the causes ; and as the causes varied , so did the laws , untill they required the constant and continuall study of such as were to judge by them . chap. iiii. of the laws of oleron , and the antiquity of the admiralty argued and inferred from the introduction of them into england . as these sea-laws before mentioned had their beginning , and the government by them , sprang from the island rhodes upon the mediterranean sea ; so the other sea-laws there are extant , which had their beginning from an island upon the great ocean , and it is called oleron , scituate on the sea-coast of france against the mouth of charant , and the maraes , nigh st. martins , and not farre from the entry of a garunana . this island likewise consisting altogether of skilfull and experienced men , as did the other , could no more subsist or proceed happily and prosperously in their maritime affairs then could the other , without such government as the other had . and they being not altogether ignorant of the rhodian laws , nor yet very perfect in them , and other new differences and controversies arising and supervening , which they could not judge or determine by the rhodian laws , they observed certain other rules and customes together with those laws , whereby they decided such differences , and determined such debates , as fell out and happened amongst them . which rules and customes king richard the first , in his return from the holy-land ( having then the power and government over that island of oleron ) caused to be interpreted , setled , and published for laws there ; and having so setled them there , and afterwards coming into england ( if we shall still doubt of the acceptance and settlement of the rhodian laws here , at or before that time ) yet let us not make any question but that he brought those laws of oleron hither with him , and here setled and declared them for laws , for the rule and government of his maritime subjects , and doing justice amongst all people of what nation soever , according to those laws , as will plainly appear out of the roll of the articles , upon which the kings justices in edward the third's time were to advise : where it is said thus : item ad finem quòd resumatur & continuatur ad subditorum prosecutionem sorma procedendi quondam ordinata & inchoata per avum domini nostri regis , & ejus consilium ad retinendum & conservandum antiquam superioritatem maris angliae , & nos offic . admiralitatis in eodem quoad corrigendum , interpretandum , declarandum , & conservandum leges , & statuta per ejus antecessores angliae reges , dudum ordinata ad conservandum pacem & justitiam inter omnes gentes nationis cujuscunque per mare angliae transeuntes , & cognoscendum super omnibus in contrarium attemptatis in eodem , & ad puniendum delinquentes , & damna passis satisfaciendum : quae quidem leges & statuta per dominum richardum , quondam regem angliae , in reditu suo à terra sancta , correcta fuerunt , interpretata , & in insula oleron publicata , & nominata in gallica lingua b la ley oleron . hence as it appeares that king richard interpreted , declared , and published these laws called the laws of oleon , in that island ; so doth it plainly appear that he ordained and established them here , by these words : ad conservandum leges & statuta per ejus antecessores angliae reges dudum ordinata : per ejus , i.e. avi sui , prius nominati ; by his predecessors ; and it doth plainly appear by that in the close , that richard the first must necessarily be one of them . and hence likewise it doth appear , that with the settlement of these laws , there was likewise a settlement of a form of proceeding according to those laws : for saith this record in prin . ad finem quòd resumatur & continuetur ad subditorum prosecutionem forma procedendi quondam ordinata & inchoata per avum , &c. hoc est & inchoata resumi , &c. which must be the construction , as the words following make it plain , which are ad retinendum & conservandum : for reteining and conserving denote something to be reteined and preserved that was before . now for the publishing and settling these laws , and ordaining a form of proceedings in the prosecution of them in richard the first 's time , i conceive i may safely conclude an admiral and admiralty court to have been settled before , and continued at the same time , unto which he added some more exact proceedings , together with these lawes of oleron , as several statutes are daily added , either in affirmance , or correction of the common law ; and my reason is because these laws ) without the rhodian laws , and those other laws made in supplement of them ) are in no wise a complete law for the guidance and direction of an admiralty court. and it may further appear , that unto the settlement of these laws , this king himself added ordinances of the admiralty : one of which i shall here set down , which he made at grymsbie . the words follow . item c soit en quis de nefs , qui sont arrestees pour le service du roy , ou pour autrè raisonabile cause per les officiers du roy , ou de l' admiral , & debrisent l' arrest , & per les quelles avantdictes nefs sont amenez & retainer les mariners qui sont ordinez pour la service du roy ; & si retraient , & encas que homme soit endite qui la debruse l' arrest en sa nef arrestee pour le service du roy , & de ce soit convicte , per xii . il perdra sa nef si'l negrace du roy , ou du hault admiral , & pour ce quila este plusseurs forz debatu en angleterre pour les arrestees des nefs quāt le roy amande sergeants , d' armes , ou autre ministris pour arrester nefs al ceps du roy , & les seignieurs des nefs sont venuz devant l' admiral & allegment que leurs nefs nestorent mye arrestees ordonne estoit ou temps du roy richard le primer , à grymsbie per advys de pluseurs seigneurs du royalme que quāt nefs seront arrestees pour service du roy que le roy escripra par ses lettres patentes à l' admiral d' arrester les nefs plus ou moins a la voulente du roy & solen ce quil a besomg , & l' admiral escrivera a ses lieutenants de faire de re l' execution & la cause estoit pour ce que l' admiral & ses lieutenants sont de record , & pais l' admiral escripra au roy ou au chancelier d' angleterre les noms des nefs amsi arrestees assemblement avec les noms de seigneurs & maistres dicelles , & en tel cas le seigneur de lâ nef ne le mastre ne viendront pas adire que la nef nestoit mye arrestee ne a ce ne seront oyz . the same ordinance being set forth in another ancient french coppy of articles , wherein divers other ordinances were likewise set forth , was by one roughton translated into latin in these words , viz. item d inquirendum de omnibus navibus quae ad serviendum domino regi super mari arrestatae fuerint , & postea domini , possessores sive magistri dolo & fraude à servitio hujusmodi se subtraxerint in deceptionem domini regis paena qui si inde postea indictati fuerint , & convicti , super hoc naves suae domino regi foris factae per ordinationem domini regis richardi primi ; & si domini , possessores vel magistri hujusmodi inde coram domino rege & cancellario suo per aliquas allegationes se aut naves hujusmodi excusare voluerint , si admirallus vel locum-tenentes sui per literas suas patentes de arresto hujusmodi facto fidem fecerint pleniorem , domini possessores , aut magistri praedicti nullo modo audiri debeant , seu eis fidem quovis modo adhiberi , eo quòd admirallus & locum-tenentes sui sunt de e recordo . this observation may very well be gathered from these records that richard the first did ( doubtless ) settle some things in this jurisdiction , and preserved it during his time : and i may observe further , that the same were continued in the time of king john , who likewise added ordinances unto the said laws , as may likewise appear by the antient articles of enquity adjoyned unto the antient statutes of the admiralty , in one of which find it thus exprest . item f soit enquis de gardains de poris & bailliffs de aves qui levent coustumes de nouvel & prennent oultra genses coustumes & ameiamens pour quoy marchants & mariners se retraient du pais de venir avec leurs merchandises se aucun gardain de port ou baillif deave est indite quil a alleve novelle coustume pour son singulier prouffit , ou pour le prouffit de son seigneur , & de ce est convicte , il aura l' emprisonnement de demy an , & le seigneur fera fin au roy ou a l' admiral , & combien que gentz d' angleterre ont mestier de vendre de ses marchandises pour ses vitailles & pour ses necessares , & les gardains des ports vouldroient prendre la coustume de toutes les marchandises qui estoient dedens la ditte nef & dire que les marchants avoient de brise la bulk de la nef dont pluseurs marchants eschuent de vendre leurs marchandises a greugneur d' ommage du peuple sur quoy le roy johan feist assembler les admiraulx de north & west & pluseurs autres de son conseil , & ordonna que nul marchant paieroit coustume de merchandises qui nestoient mye vendues mais de ceulx qui estoient vendues comment quilz soient mis aterre & saucun baillif face encontre il aura l' emprisonnement d'un demy an , & soite oste de son office pour tous temp● & fera fin au roy detant commeil a ainsi malement pris . and by rougbtons latine translation out of the other antient articles of enquiry i find it thus set forth , viz. item g inquir . de portuum custodibus sive aquae ballivis , qui clamant sive incipiunt de novo novas custumas pro commodo suo proprio sive dominorum suorum , unde naves , & mercatores , portus & loca hujusmodi , una cum mercandesis relinquunt damno & jacturâ utilitatis reipublicae . poena qui vero custodes sive ballivi si indictati fuerint super hoc & convicti , imprisonamentum dimidii anni habebunt : finem nihilominus domino regi facturi ad valentiam in hoc casu praecepti , ei qui hujusmodi si usui suo proprio convertatur praeceptis . sin autem ad usum dominorum suorum pervenerit imprisonamentum dimidii anni , ut praefertur subibunt , & domini sui de fine veri valoris in hâc parte domino regi propter hoc respondebunt ; & nota quod liceat mercatoribus necessitate urgente , vendere percellas mercandizarum pro expensis suis , si contingat absque aliquâ custumâ ab eis petendâ vel exigendâ per ordinationem johannis quondam regis angliae apud hastings . et si aliqui custodes vel ballivi contrar . hinc ordinationi fecerint , imprisonamentum dimidii anni habebunt , & perpetuò ab officio eorum hujusmodi sint suspendendi . but in king henry the third's time it had received so much interruption , that the vigour and force thereof was well nigh lost , insomuch that edward the first was constrained , inchoatā formam procedendi quandam & ordinatam resumere , who likewise added certain ordinances unto the said laws , as you may read hereafter , which tend very much to the preservation of that jurisdiction ; which work being not fully perfected , soon began to decay in edward the second's time ( whereby it may seem that that jurisdiction never wanted enemies ) which withdrew its strength , and abated its power , untill the necessity thereof appearing in the decay of navigation , and thereby of trading and commerce ; and of want of strength in shipping for the defence of this kingdome against forrain forces and enemies , still revived it , and restored unto it what had been withdrawn from it , which was the cause ( without doubt ) that caused edward the third to proceed in that good work , which his great grandfather had begun : ad interpretandum , declarandum , & conservandum leges & statuta per avi sui antecessores angliae reges dudum ordinata , &c. as the aforementioned record sets forth ; after which , in his time , it so revived and flourished , that it might very well seem a new birth , from whence some have conceived it to be the first birth , and to have its beginning there , but upon no other ground at all . i have hitherto only endeavoured the proof the antiquity of this jurisdiction , which will more seasonably follow when i shall inforce the necessary use of the forementioned laws , those which sprang from the rhodes , suppleated out of several other titles in the body of the civil law ; and those which have been derived from the antient statutes of the admiralty , the laws of oleron , &c. which of these laws were first introduced into this kingdome i shall not dispute ; this i shall only say , that they altogether make an exact and complete rule for the government of all seafaring or sea-trading men , and matters , and have been here antiently and frequently used , and elsewhere , throughout most parts of europe . divers others have been said ( since the making of the rhodian laws ) to have made new sea laws ; as the rulers of rome in th year ; and since that marseilles , genoa , peloponnesus , venice , constantinople , constantine , and barcellona in several years : but the roman empire having ( not long before that time ) been as it were rent and torne in pieces , their laws for the land , and land-affairs laid aside , and their laws for the government of the seas quite subverted , and well nigh lost , some of these nations were constrained to recollect and gather together such parts and parcels as could be well made up into one body again , with some small cement of our own , and might better be called a reparation of their old laws , then a structure or edifice of new . for the rest , some say they are additional , some say explanatory to remove false constructions and interpretations , and some say both : but certainly for the most part they are but explanatory ; for the other laws before mentioned , are accounted most authentick , and of chiefest authority throughout all , or the greatest part of europe . but be these additional , yet the addition of sea-laws to sea-laws is no diminution of sea-jurisdiction , but rather a compleating and perfecting thereof : but the composure of new land-laws , or if it be but the reformation of old , if those laws look but toward the sea , they oftentimes cause the discomposure of sea-laws , and unless well lookt unto , the very destruction of that jurisdiction : but of that more will appear by what shall be said hereafter . and now before i proceed to any other argument for the proof of the antiquity of this jurisdiction , i shall give you one reason only , which induceth me to believe , that the same was settled long before the time before mentioned , and that the rhodian sea-laws were here settled long before the laws of oleron by richard the first ; and that is an ordinance made by henry the first at ipswich , concerning the banishing a man for felony or trespass , which i find mentioned in an article of the antient inquiry of maritime offences annexed unto the antient statutes of the admiralty in the antient parchment-leaved book , called the black book of the admiralty , where , after the manner of such banishment is set forth , it is said : et h cêste ordonnance fat faitte primerement a gyspswiz ou temps du primer roy henry per les admiralx de north & west , & autres seigneurs adheirdantz . chap. v. the antient introduction of the sea-laws argued , and inferred from the king of englands dominion over the british seas . that the kings of france have no dominion at all over the british seas , or any right or claim thereunto whatsoever , is made plain by what is i set forth in the th chapter of the second book de dominio maris , written by mr. selden , who in his th and th chapters of the same book proceeds to make further proof thereof , and therein sets forth , that there being warre between king edward the first of england , and king philip the fair of france , but agreed by covenant , that all commerce on both sides shall be free ; so that to all merchants whatsoever there should be induciae , which were called sufferantia guerrae : and by both of them judges were appointed that should take cognizance of all things done against these truces , and should exercise judicia secundum legem mercatoriam & formam sufferantiae . now it being contained in the first head of this league , that they should defend each others rights against all others , this afterwards was the ground of an action which was instituted in the same kings time , &c. before these cognitors chosen by both the said princes , by the proctors of the prelates , nobility , and high admiral of england , and of all the cities , towns and subjects of england , &c. unto which are joyned the proctors of the most maritime nations throughout europe , as of genua , catalonia , spain , alemania , zealand , holland , frise , denmark , and norway , and divers others subject to the roman empire , against reginer grimbald the then admiral of france ; for that there being warres between philip king of france , and guy earl of flanders , he had taken merchants upon those seas , in their voyage to flanders , and dispoyled them of their goods , whereas the king of england , and his predecessors , as they all joyntly by libell do declare and affirme without all controversie , beyond the memory of man , have had the supreme government of the english seas , and the islands thereof : praescribendo k scilicet leges , statuta atque interdicta armorum , naviùmque alio ac mercatoriis armamentis instructarum , cautiones exigendo , tutelam praebendo , ubicunque opus esset , atque alia constituendo quaecunque fuerint necessaria ad pacem , jus & aequitatem conservandam inter omnimodas gentes tam exteras quàm in imperio anglicano comprebensas , quae per illud transierint ; supremam ●sdem item fuisse atque esse tutelam ; merum & mixtum imperium in juredicendo secundum dictas leges , statuta praescripta & interdicta , aliisque in rebus , quae ad sumumm imperium possint attmere in locis judicatis ; ad praefecturam admirallorum à regibus angliae constitui solitorum spectare jurisdictionem ex imperio ejusmodi exercendam . and he sets forth further in the same libel , that they do all of them together desire ut à custodiâ l liberati , qui carceri ita traditi essent , reddita item bona nullo jure capta , jurisdictionem admiralli regis angliae ( ad quem solum tam ex jure rerum ac loci , quàn personarum hujusmodi jurisdictio attinebat ) subirent . these things i have cited out of mr. selden not only to shew here for my purpose , that the kings of england have had from antient times the power and dominion over the british seas ; ( for then might i have referred the whole matter to his whole book , which doth so learnedly , so many wayes , and by so many several arguments convince in that point ) but as well to shew that the kings of england's admirals have likewise as antiently had jurisdiction under them , over those maritime affairs , which fell sub isto regimine & dominio . and also to shew that so many nations did concurre and agree therein ; and that they had istud regimen & dominium exclusivè of the kings of france bordering upon the same seas , and of all other kings and princes whatsoever ; for they all likewise joyntly agree , an usurpation , and interruption of the king of england's right of dominion over these seas by the king of france , in granting a patent of the admiralty of the seas unto his admiral reginer grimbald , and therefore all joyntly proceed in their petition further : vt m cognitorum sententia reginerus grimbaldus ipsa damna actoribus resarciret , si nimirum solvendo esset ; sin minùs , tunc ut ad idem faciendum damnaretur rex franciae , qui ejusmodi praefecturae codicillis eum donasset : damnis autem resarcitis , tum etiam reginerus ob foederis violationem poenas daret , quales alios à simili facinore in posterum deterrere possent . and in the n th chapter of the same book , the libel is set out at large in its own language worthy the reading . now all these things considered , shall any man that understands that the kings of france ( who have no jurisdiction at all over these seas ) have so antiently had , and continued their admirals in such power , as the edict by parliament at paris declares them to have done , so much as imagine that the kings of england ( who have had ( from edward the first 's time , and so long before , as that all the aforenamed nations do joyntly acknowledge it to be then beyond the memory of man ) the sole rule and dominion of these seas ) should not furnish this his maritimum regimen & dominium with those antient maritime laws before spoken of ? certainly whosoever imagineth this , concipit istud mare sine navibus , vel naves sine naucleris & navarchis fluctuantes concipit istas . if furnished with lawes , then consequently with a commander , admiral , or governor , for the dispensing and ministring of justice amongst sea-traders , and seafaring-men according to those laws , else were these constituted and appointed to that use in vain . but i may here rather from the forementioned libel deduce a proof of the antient settlement of maritime laws in england from the antient acknowledgement of an admirals jurisdiction , then the settlement of an admiral and his jurisdiction from a former introduction of the maritime laws into this kingdome ; for an admiral of england , and an admirals jurisdiction are both acknowledged by all the therein mentioned nations , to have been from that time , ( which was anno ed. primi ) beyond the memory of man. if then the admiral had so antiently a jurisdiction , i must necessarily inferre from thence , that so antiently , if not somewhat before , the laws of the sea must be settled for his rule and guidance : for they do not say there was an admiral , for so there might have been , and he have ruled by arbitrary power : but they say ( as before is said ) ad praefecturam admirallorum à regibus angliae constitui solitorum spectaret jurisdictionem ex imperio ejusmodi excercendam . and in their petition as is before exprest , they desire ut à custodiâ liberati qui carceri , traditi essent , reddita item bona nullo jure capta , jurisdictionem admiralli regis angliae subirent . now as 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 jus , so jurisdictio is juris dicendi potestas . and as 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , likewise from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 lex ; so juris consultus est is qui jus consuluit , sive studuit : and so juridicus quod secundùm jus est , as juridicus dies , quô ritè jus dici potest , and juridica actio , quae secundùm jus est : dicitur etiam juridicus , qui jus dicit 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. at cui jus ignotum est , & ignota jurisdicendi potestas , & cui jus non est jus , non consuluit , & ubi jus non est , ibi jus dici nequit . no man can have a jurisdiction or power of declaring the law , or judging by the law , to whom the law is not known ; more especially where there is no known law to declare or judge by . therefore seeing the admiral ( by common consent , and by so common a judicial acknowledgement ) so antiently had a jurisdiction , necessarily he must so antiently have had certain known and settled laws to declare and judge by . i do observe likewise that all the patents granted unto admirals , from the th of edward the third upwards , unto the th of edward the first , do conclude in binding them to the execution of their office : prout justum fuerit & fieri consuevit : and as this prout fieri consuevit led me to the more antient patents , wherein the officers bear not the title of admiral , and taught me to understand that the variation of the title did not differ or alter the property in the office , or the quality of the officer : so this prout justum fuerit shews me as well as the jurisdiction in the libel before spoken of did , that the admirals had then ; and prout hactenus shews me they had so before , a law to rule and judge by : for though a private man , which is vir bonus , a good man which deals uprightly and punctually with all men , is usually said to be vir justus , and not improperly when we speak of a private man in his private dealings : and vir probus & sanctus , which observeth the divine law , is very properly called vir justus , when we speak or discourse of matters of religion , &c. but if we speak of a man set and put in place and authority over others in sea-affairs , we say he is vir justus , qui jus observat , & à jure non discedit ; for 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which signifieth justus , doth as 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 do , come from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 jus ; and so 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 from the same word signifieth legitimè , jure , & justè ; 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 signifieth jus , the law it self . chap. vi. the antiquity of the admiralty argued and inferred from the defect and want of ability in other courts in deciding of maritime causes in those antient times . that in those antient times the custodes marinae , & maritimarum partium , &c. to whose care and trust these marinae , and maritimae partes , the seas , the coasts and ports of the seas were committed , had a great power , and grand authority over all those maritime parts , whereunto they were limited , and over all ships and shipping , and over all things thereunto belonging , and over all persons whatsoever , who were therein concern'd within the said limits , and had powet and authority of hearing and determining of all differences and controversies , which did or might arise concerning the same , may be very well concluded upon this further ground , that no other court in those dayes presumed ever to take cognizance of any such matters , or affairs , which i am confident of for the reasons ensuing : i hope no man will say that maritime causes were tried in the heal-gemote , now called the court baron ; nor in the hundresmote , now called the hundred-court , and is of the same nature with the county-court ; nor yet in the scyedgemote , now called the b sheriffs turne , which were the courts then in use , and had been long before the conquest , and do yet continue , and never did , nor do assume , nay not so much as challenge any right at all to any such power . nor did the kings court of exchequer ( which was the first court was settled after the conquest ) ever c undertake to deal in causes of that nature ; but ( as mr. lambard determineth this point very well ) was only setled and appointed for causes concerning the kings demeasnes and receipts . and he saith that after the conqueror had suppressed the forces of those that made head against him , here , he settled this court for his revenues , and called it his exchequer , after the name of his exchequer in normandy ; but ( saith he ) it differed not a little from that ; for the exchequer of normandy had not only the government of the revenues of the duke there , but was also the soveraign court for the administration of justice amongst his subjects until lewis the twelfth , king of france , anno . converted it into a parliament , consisting of a president and councellors , and established it at roan in normandy , where it still continueth . but ( saith he ) this exchequer in england had only the direction of his demeasnes and receipts , and the administration of common justice continued still in that high court of justice and equity , which did then and a long time after , as well as before the conquest follow the king himself ; and for proof thereof he quoteth gervasius tilburiensis , who wrote many observations upon the exchequer , which he dedicated to king henry the second , and be yet remaining in the receipt under the custody of the chamberlains of the exchequer in the black book there . but because ( as mr. lambard saith ) some contended to maintain that the exchequer was in those dayes a court of all sorts of pleas , for all subjects whatsoever , and that for the maintenance of their assertion , they do alledge the title of mr. glanvil's book in part thus : et d illas solùm leges continet & consuetudines secundùm quas placitatur in curiâ regis ad scaccarium , lest others should hereby be misled , and for this reason think so too , and so be brought to conceive , that before the court of kings-bench or common-pleas were either of them settled in certo aliquo loco , that the exchequer might have the cognizance of all causes between party and party , as well maritime belonging to the sea , and sea-affairs , and from thence arising ; as terrene belonging to the land , and land-affairs , and from thence growing ; i shall here set down mr. lambards answer to that which is alledged for the proof , and maintenance of this assertion , who confidently affirmeth , that the aforementioned words are not the words of glanvil himself , but of the publisher of his book in print , which appeareth by what precedeth the words alledged in the title , viz. tractatus de legibus de tempore regis henrici secundi compositus ab illustri viro ranulpho de glanvile , juris regni , & antiquarum consuetudinum eo tempore peritissimo ; which ( saith he ) doth plainly shew and bewray that the publisher spake of glanvile as another man , and which also lived not then , but at another time . and herein he must needs say very truly , for never was there any author of any credit that ever gave himself this or the like title , or being living , would say that he was juris regni & antiquarum consuetudinum eo tempore peritissimus . and again , they have not taken in all the words of that title , which do follow , but have left out these , viz. e et coram judiciariis ubicunque fuerint ; which being so , the kings bench or court which then followed the king , must needs be herein comprehended and included , and the whole title being collected thus , tractatus de legibus de tempore henrici secundi compositus ab illustri viro ranulpho de glanvile , juris regni & antiquarum consuetudinum eo tempore peritissimo , & eas solùm leges continet & consuetudines secundum quas placitatur in curiâ regis ad scaccarium , & coram justiciariis ubicunque fuerint . then doth this title make no argument for the proof of their assertion . and so i shall leave the exchequer then only to govern and rule the kings revenues , demeasnes , and receipts , and such matters as belong only thereunto ; and next cast only a glance upon the justices in eyre and their jurisdiction . the justices in eyre are said by gervase of tilbury to be quasi errantes , but by bracton are called itinerantes : for king henry the second in the th year of his reign divided the realm into six parts , from which the circuits which our judges do now ride , do not much differ ; and to every of those parts appointed three justices , who at their appointed times kept circuits in their several parts to them limited , and held plea as well of criminal as of f civil causes . but justices of assises being likewise appointed , whose first office was to take assises of mort d'ancester , and novel desseisins , according to the customes of normandy , where it is called la novellette ; and gaining a further power of taking attaints , juries , and certificates , and delivery of gaols . these justices of assise by the beginning of edward the third's reign gave an end to the justices in eyre , who about that time did surcease and take leave . now could neither of these justices , the justices in eyre not coming every year into the country , nor the other justices ( being sometimes at home , sometimes in their circuit ; and in their circuit , sometimes in one place , and sometimes in another ) take g cognizance , or have the hearing and determining of maritime causes , seafaring matters , or any thing them concerning : for such causes did and do require a more speedy dispatch and determination than these justices could afford them . nam h breviter & summariè tales sunt examinandae causae , nec ad plenissimas judiciorum formulas recurrere oportet , sed suceinctè de plano sine strepitu judiciorum & solenni figurâ ; immo velo levato in eis procedendum est . & ut 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 vela navis navigationem & transfretationem properant , judicium sic properat ad navigandum & transfretandum festinatio ; merchants , mariners , and seamen , whose business and affairs are ordered here , ventulated at sea , and agitated beyond the seas , must have a quick and sudden dispatch of justice ; that as they come in with one good wind , so they may go out with another : the mariners cause admitteth no delay , but must have a judge , and a settled place of judicature at all times in readiness for his dispatch : for whilest his cause is pleading for his right , his ship is preparing for his voyage ; to which i may well apply the verse in virgil , i interea classem velis aptare jubebat . for his ditty is alwayes the same with another verse of the same authors , k rursus agam pelago , & ventis dare vela jubebo . neither for the very same reason ( if there had been no other ) could the court of common-pleas , when it was settled , take cognizance of maritime causes , or seafaring matters , nor did the settling thereof dissettle the marina , which had at and before that time been committed unto the care and charge of several persons , as appeareth by those several records of the ninth and eighth year of king henry the third already cited ; for the court of common-pleas ( 't is plaine ) began not to be settled untill the ninth year of the same king. if so soon ; for it was but that year determined that it should be so settled ; but the power thereof rested in the king himself , and his supreme court , which constantly followed him whithersoever he removed ; and was by magna charta cap. . that year appointed only to be settled in one particular place , by these words , l communia placita non sequantur curiam nostram , sed teneantur in certo aliquo loco . now although differences and controversies of what nature soever , were then perhaps neither so many , nor did so frequently arise as now , nor were of so great consequence and concernment , as since they have been ; yet cannot i , or any man else ( as i conceive ) think that they were so few , ot so mean , as that they deserved no decision or determination at all . i cannot see then how it can be possible , but that these custodes must necessarily have then even in those so ancient times a complete jurisdiction for the regulating all maritime and sea affairs , and for the deciding of all maritime and sea differences , by those most exact sea-laws , before those times so well known unto so many forreign nations , and by them so gladly received , and put in use and execution ; and m doubtless not unknown here , for the reasons before exprest , together with the antient statutes of the admiralty , and those laws of oleron , which ( as it plainly appears ) were introduced by richard the first . chap. vii . of the exercise of the sea-laws by the graecians , athethenians , romans , italians , venetians , spaniards ; and by the admirals of naples and castile . from the example of these rhodians , have all or most princes and common-wealths in europe obteined their laws , continually constituted and appointed chief captains , commanders , governors , or admirals over all their ships , sea-faring-men , and sea-affairs , to order , rule , and govern them by those laws , and to put the same in due execution , distinctly and apart from , and in no wise mixt or intermingled with those laws whereby they regulated their land-men and land-businesses . the a graecians have had from antient times , and still have their several special judges for hearing and determining of all differences happening between merchant and merchant , mariner and mariner , and between merchants and mariners , and between merchants and owners of ships , and owners of ships and mariners , and between them and all others that had to do with them in their sea-trading , and sea affairs . and these governors of their fleets are termed or called their 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , or chief governors . the b athenians have likewise antiently had the like for the same purpose , which they termed or called their thesmothetie . and the c romans had antiently their archigubernii , praefecti classis vel maris , for their principal governor , commander of their fleet and shipping ; but because of their great employment , sometime at sea , sometime at land , they had their magisteriani , or judiciarii ( or as d freccia saith ) their comes commerciorum for the judicature of all maritime causes . and when they came to be divided into e kingdomes and republiques , the kingdoms had their admirals , and the republiques their consuls , who had the judicature of freight , &c. the f italians have their l'aamiraglio or amirante , and under them their li consoli del mare , for the decision of all causes maritime . spain hath its g adelantado , and divers admirals , some for europe , some for the indies , all of equal power . naples hath an h admiral of great power over all seafaring men , and all such as get their living by the sea , or are employed in building and furnishing of ships with what necessaries soever ; and over all such as make it their trade to take fish in the sea , &c. and his court is called magna curia , from which there lieth no appeal , only to the supreme council ; all which he hath exclusivè to all others , both for matters criminal and civil . the admiral of castile hath supreme authority over all that use the seas , and hath other judges in port-towns for the dispatch of all ordinary businesses concerning freight , avaridge , and all other maritime affairs . chap. viii . of the admiralty of france and denmark . but to come nearer home , the kingdome of france hath from antient times had admirals ; and so affirmeth that learned man a mr. selden , seculis in vetustioribus apud gallos fuêre quidem admiralli seu rerum maritimarum praefecti ; ita tamen ut eorum scriptores de dignitatis initiis haud parum discrepent ; saith he , they are so antient , that their writers cannot agree when that dignity began : sed id plerumque aiunt , reperiri sub b carolo magno rotlandum maris britannici ( aremoricani ) praefectum , quem ex eginharto vitae caroli scriptore contemporaneo petunt : but saith he in eginharto non maris britannici , sed tantum britannici littoris praefectus expressè is nuncupatur ; he was not admiral of the british sea , but of the british sea-coasts or shoar ; quo nomine non qui mari , ut provinciae praest , sed qui littori , & dignitatis limiti designatur : for he setteth forth plainly in the same chapter , that the kings of france had no dominion over those seas ; reges vero ipsos nullum tunc habuisse in mare imperium disertè scribit johannes tilius curiae parisiensis actuarius : and there sets down tilius his own words at large , together with divers of other proofs throughout the same chapter , which fully manifests the same . yet in the beginning of the c same chapter , he doth allow the french admiral , or their praefectus maris copiarum , navalium in mari quocunque & nautarum regimen , & jurisdictionem in personas & res mobiles , quae sub judice veniant , pour raison ou occasion de faict de la mer ; id est , ob causam aliquam à re maritima ortam . and in confirmation of this d power and jurisdiction , and for the more plain declaration thereof , the office of the admiral by the parliament at paris is since thus ratified , and declared in the kings name . . that in all armies which shall be raised , and set out to sea , the admiral shall be and continue chief , and our lieutenant general shall be obeyed in all maritime towns or places , which are or may be without contradiction . . he shall have jurisdiction , cognisance , and determination of all things done or committed on the sea , or shoars of the same ; likewise of all acts of merchandising , fishing , freighting , or letting to freight , sales or breach of ships , of contracts touching the matters aforesaid , of charter-parties , of sea-briefs , and of all other things whatsoever happening upon the sea , or shoars thereof , as our lieutenant alone ; and to all purposes in the places aforesaid , which jurisdiction , cognizance , and determination we have interdicted to all other judges . . he shall have cognizance exclusive to all others of causes civil , and criminal , of those who are of the dutch towns , of esterlings , english , scotch , portugals , spaniards , and strangers , whether the cause of suit be betwixt strangers only , or betwixt strangers and our own subjects , upon any occasion whatsoever . he holdeth his e principal court at the marble table in the palace of paris , and appointeth judges as his deputies in maritime cities and towns , who hear and judge ordinary matters within their circuits ; and if any business fall out worthy of greater consideration , they refer it to the admirals principal court. the admiral of denmark is called riiks , and hath the like power and authority the admiral of france hath . chap. ix . of the admiral of scotland . concerning the admiral of scotland , we may ( i am confident ) very well believe wellwood , who was that countrey-man , and in his a proheme upon his conscience , as a professor of the civil law , denyeth that he had any imployment or part in any admiralty ; and he setteth it forth thus , and saith , . that for the redier obedience to the b great admiral of the sea , it is by common consent of nations successively agreed , that in consideration of the admirals soveraign commandment , special preferment , and power over the lives of men within the sea-flood , that therefore they should also have a soveraign jurisdiction only proper to themselves over all seafaring-men within their bounds , and in all seafaring causes , and debates , civil and criminal ; so that no other judge of any degree , at least in scotland , may meddle therewith , but only by way of assistance ; and that must be by way of commission , and in difficult causes ; and he instanceth in an action intended by antoni de la tour , against one christian masters novemb. anno . and he quoteth for this example the first tome , and the chapter of the registry of scotland . . he saith c the admiral is to constitute a vice-admiral , and captains to supply his absence at sea , as also deputies for particular parts on the coasts , with coroners to view the dead bodies found on sea , or found on the coasts thereof ; and commissioners or judges general for exercising justice in the high-court on land , in causes criminal , specifying likewise the officers thereunto belonging , and these commissioners or judges general may sit where they please , to execute justice , to imprison and relax , and to command the kings prisons , boroughs , and their prison-keepers , to receive and keep their prisoners . . that d his authority is distinctly acknowledged in all things pertaining to seafaring matters , and therefore his judge , deputy , or commissary is called judge , admiral ; and he and none other doth sit , cognost , determine , and administer justice in all civil debates between mariner and merchant , and between mariner and mariner : as likewise upon all complaints , contracts , offences , pleas , exchanges , assecurations , debts , accomps , charter-parties , covents , and all other writings concerning lading and unlading of ships , freights , hires , money lent upon casualties and hazard at sea , and all other business whatsoever amongst seafarers done on sea , this side sea , or beyond sea , not forgetting cognition of the writs and appeals from other judges , and the causes of actions of reprizal or letters of marque . yea , and to take e stipulations , cognizances , and insinuations in the books of the admiralty , and to arrest and put in execution . . that he is to enquire as well within liberties , as without , by the oath of twelve men upon several offences . . of revealers of the king and countrey their secrets over sea in time of warre , . of all pirats , their assisters and abettors , out-treaders and receptours . . of the breakers of the admirals arrestments and attachments . . of goods forbidden , and merchandises not customed , and yet shipped and transported . . of the resisters of the admirals officers in executing their praecepts . . of the forestallers , regraters , and dearthers of corn , fish , drink , fire , wood and victuals carried over sea . . of pleaders before other judges then the judge admiral in causes pertaining to his jurisdiction , as also of the judges taking cognizance of such causes . . of such as give sea-briefs , testimonials , or such like , over sea without power or licence from the admiral . . of transporters and carriers of traytors , rebels , manifest transgressors , and fugitives from justice over sea . . of freighters and hyrers of ships of other nations , when they may be served by their own nation . . of such as cast ballasting-sand , or what else in harbours or channels that may defile or spoil the same . . of ship or boat-writes extorting the leiges or subjects . . of taking away the boigh from the anchor , or cutters of cables or other tews . . of false weights and measures by sea . . of shedders of other mens blood on sea , or any port or river below the first bridge next the sea. . of such as have furnished ships with all ware , or gear , as the sea-men terme it , whereby any are hurt , lamed , or maimed . . of customers and water-bailiffs , which take more custome or anchorage , then hath been usuall . . of such as absent themselves from wapen-shewing , or mustering , which the admiral may ordain twice a year in time of warre , and once in two year in time of peace , upon all dwellers at ports and harbours , or within one mile near thereunto . . of all sorts of transgressions committed by sea-men , ferry-men , water-men , as well in floods , rivers , and creeks , from the first bridges , as on the seas , fishers , pilots , ship-wrights , and prest-men , and continuing his authority , after due cognition to levy and gather the penalties and amercements of all such transgressors , together with the goods of pirats , felons , capital faulters , their-receivers , assisters , attainted , convict , condemned , outlawed , or horned . . of deodands , viz. the thing , whether boat or ship , &c. that caused the death of a man , or by reason whereof a man did perish . . of waif or stray-goods , wreck of sea , coast-goods . . of shares , lawfull prizes , or goods of the enemy , lagon , flotson and jetson : lagon , which lyeth on the sea-ground , or is taken from the bottom of the sea : flotson , which is found swimming on the sea ; jetson , which is cast forth of the sea , and is found on the shoar , with anchorages , beaconages , mear-swine , sturgeons , and whales , and all fish of extraordinary greatness , which have alwayes been allowed to the admiral . chap. x. from the common acceptance of the sea-laws in other nations is inferred the acceptance of them in england . thus have i set forth the antient original and beginning of the sea-laws from the rhodes so exactly by them set down , according to the rules of equity , that none of the roman emperours , the masters of law , no not antoninus , who ( as he accounted himself ) was 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , mundi dominus , would undertake the decision of maritime causes , but would refer them to the determination of the laws of the rhodes . i have likewise set forth the common and glad acceptance of them , or of what could be got of them ; or rather the earnest suit for them by very many other nations , the use whereof hath been most profitably continued amongst them . can it be thought then that this nation being an island ( to which shipping and navigation must needs be most necessary and usefull ) should deny or refuse these laws , so serviceable and usefull for their maritime affairs , there being no other law here usefull for that purpose ? or shall it be thought that this nation neither knew or heard of them , when so many other nations did ? certainly no : this nation hath very antiently flourished by its trade and traffique with other nations , and hath been frequently accustomed to navigation , and transfretation , and hath had as well converse as commerce with those nations , and would as well convey those laws hither for their common government , as transport their own commodities thither for their private benefit , which happily could not be enjoyed , one without the other . if not so , yet let no man say that the two famous antient universities of the land , wherein there be so many colleges , and houses of antient foundation , in which have been by the founders themselves , so many fellow-ships , scholar-ships , and places founded , settled , and employed properly and solely for students in the civil and maritime laws , or the laws proper and necessarily usefull for navigation and maritime affairs , being so scattered , ( or i will rather say decently , as flowers strewed ) and disperst through the whole body of the civil law , the subject whereon those students were to spend their daily labour , pains , and employment , could possibly be long ignorant of those laws , that these so many forenamed nations had so long and so well known ? what if known by this nation , was there yet any use made of them in it ? that they were known by what hath been said or considered , cetainly i cannot have so ill a conceipt of my country men , the antient inhabitants of this nation , as to think them so long ignorant and unskilfull of those antient laws of the sea , and laws so necessary for maritime affairs , as some would make them to be ; much less will i think the government of this nation to be without so good order and justice in any particular , as not to settle these laws once known for the government of its maritime matters ; nor will i imagine the maritime men to be so dull or stupid , as not gladly to embrace the settlement of such laws as tended so much to their quiet , and advance of their profit , being to trade and commerce with such as used , in this particular , no other laws but these . again , shall we say that so many nations , some so remote , and some so near home as france , but over against us , and scotland even within the same island , all governed by the civil laws , or municipal laws thence derived , and by them regulated and guided as the sea laws are , and keep the pathes and very footsteps thereof in their proceedings , as the sea laws do ; have with so much eagerness pursued and sought for these sea laws , and with so much chearfulness embraced , and continued them ; and that this nation that is invested in a law particular and municipal , which doth in no wise so much as challenge or claim any derivation from , or dependency of the civil law , but is altogether different and disagreeable thereunto in its proceedings , and oftentimes in its determinations , and hath no foundation or grounds whereon the dicisions of sea-controversies can be built , should without the knowledge and practise of these civil and maritime laws , deal and trade with such as do live under them , and are guided by them ? surely no , so many inconveniences , distractions & distempers by reason of the variousness of two laws , both in proceedings , & oftentimes in determinations , would long agone have destroyed all our commerce and traffique with these other nations , and so consequently have dispoiled us of our navigation and shipping , the principal safeguard of this land. nay , i am so farre from doubting the acceptance of these maritime and sea laws , here in england , as well as in other nations , that i am confident they were here settled before they were settled in divers of those nations before mentioned : for i must not so much as think , or have the least conceipt that england ever borrowed any thing at all from those articles which are cognoscible in the admiralty of scotland . but i may very well believe that those articles of scotland were borrowed from some of the three antient records of the admiralty of england : ( for so are all things by the admiral , judge , or lieutenant decreed , and registred by an ordinance of richard the first , made at grimsby , styled and said to be ) which are , with very many other antient things , comprised in the black book of the admiralty , which are therein ingrossed in an antient character upon vellam , one of which immediately followeth the antient statutes of the admiralty , and is there set down in old french , as the said statutes are , and conteineth articles . a second is a latin copy translated out of another antient french record , by roughton , and in an antient character in the same manner , inserted into the same book , and containeth articles . the third is the inquisition taken at quinborough , the . of april in the th year of the reign of edward the third ; at which time , and to which place he caused several maritime and seafaring and sea-trading men of the best judgement and knowledge in sea-affairs of most of the maritime parts of england to be summoned , and there before w. nevel admiral of the north , philip courtney then admiral of the west , and william lord latimer chamberlain of england , and warden of the cinque-ports , to meet together , and consider of all such points and matters as had antiently and usually been observable , inquirable , and punishable in the admiralty , upon which inquisition articles were concluded on , which are likewise ingrossed ( they being more particular than the former ) in old french , in the said antient black book of the admiralty : but these ( as the scottish articles ) do concern only matters to be proceeded against criminally , and not matters of trade , traffique and commerce , and damages susteined at sea , or in ports , havens , &c. whereof i shall come to treat in the second book ; yet do these several records in several articles set forth in what manner such as shall sue or implead any merchant , mariner , or seafaring man for any contract maritime , whether made by charter-party or otherwise , or for any thing whatsoever done of , or concerning any ship or other vessel in any other court then the admiral , shall be proceeded against , as i shall more particularly hereafter set forth : but my chiefest reason that the civil and maritime law-courts were here settled in england ; before they were settled in divers of those other nations , is for that this nation hath had the dominion over the british seas , and their high-admirals their jurisdiction over those maritime affairs , which fell sub isto regimine & dominio , so antiently , as that in edward the firsts time the same was acknowledged by very many other nations to have been then beyond the memory of man , as i have before set forth in the a th chapter of this book , where i take my authority from an antient record of the tower in nature of a libel , intituled de superioritate maris angliae , & jure officii admiralitatis in eodem ; as is in the same th chapter exprest . the record it self i was a long time since shewed by my old friend mr. collet , who for a long time had the keeping of the tower records under several men , unto whose care and custody the same were committed ; and afterwards i met with the same in mr. seldens book , b de dominio maris , which i had not before read over ; and after that i found the same set forth by c sir edward coke in his jurisdictions of courts ; yet i will not send the reader thither to seek it , but for his readier perusal i shall again set forth the same here , and therewith terminate and end this first book of my maritime dicaeologie of england . the words of the record are these . a vous seignieurs auditors deputes per le rois de engliterre , & de france a redresser les damages faits as gents de tour royalmes & des auters terres subgits a lour seignuries per mer & per terre entemps depees & trewes . monstrent les procorours des prelats & nobles , & del admiral de la mier d'engliterre , & de cominaltes des cities & des villes , & des merchants , mariners , messagiers , & pelerins , & des toutes aultres du dit royalme de angliterre , & des aultres terres subgits a la seignurie du dit roy d'engliterre , & daillours sicome de la marine de genue , cataloigne , espaigne , alemaigne , zeland , hayland , frise , dennemarch , & norway , & de plusours aultres lieux del empier , que come les roys d'engliterre per raison du dit royalme du temps dont il ny ad memoire du contrarie eussent este en paiceable possession de la soveraigne seignurie de la mier d'engliterre & des isles esteaunts enycele per ordinance & establicement des lois , estatuts , & defenses & d'armes & des vesseaux autrement garnies que vesseaux de merchandise & de seuerte prendre & sauve de gardes doner en tous cas que mestier serra & par ordinance entre tout manere des gents taunt dautre seignurie come de lour de propre de tous aultres faitz necessaries a la garde de pees droiture & equitie par elonques passants & per souveraigne garde & toute manere de conisance & justice haulte & basse sur les dites lois , estatuts , ordinances , & defenses , & pur toutes autres faits queux a le government de souveraigne seignurie appertenir purrentes lieux avandits . et a. de b. admiral de la dit mier deputey per le roy d'engliterre , & tous les aultres admirals par mesme celus roy d'engliterre & ces ancesters iades royes d'engliterre eussent est en paisiable possession de la dit souveraigne garde ove la conisance & justice & touts les aultres appurtenances avant ditz forprise en case dappele & de querele fait de euxa lour souveraignes roys d'engliterre de defalte de droit on de malvais judgement , & especialment pur empechement metre & justice faire seurte prendre de la pees de tout manere de gents usants armes en la dit mier ou menans niefs aultrement apparreilles ou garnies que nappertient au nief de marchants , & en touts aultres points en queux homme poit avoir reasonable cause de suspition vers eux de robbery , ou des aultres mes faitz . et come le maistre de niefs du dit roialme d'engliterre en absence des dits admirals eussent este en paisable possession de conustre & juger des touts faits en la dite mier entre touts manere de gents felone les lois estatuts & les defenses , franchises & custumes . et come en le primer article de lailliance nadgaires faite entre les dites roys en les traites sur le darreine pees de paris soient comprises les paroles que sensident en une sedide annexe a yceste . primerment il est traite & accorde entre nous & les messagers & les procurours de surdiz en nom des dits rois que yceux roys serront lun a lautre desores en avant bons , verrois & loyaux antyes & eydans countre tout homme sauue lesglise de rome en tiels manere que si ascun ou plusours quicunquez ilz fuissent voloient deponticer , emphescher , ou troubler les dits roys en franchises & liberties , priviledges es droits , es droitures , ou es custumes de eux & de lour royalmes quils serront bons & loyaux amys & aydans countre toute homme que puisse venire & morir a defendre , gardi & maint●ir les franchises , les liberties , les privileges , les droitz , les droitures , & les custumes de susdites , except le dit roy d'englitere monsieur john duc ele braban en brabant & ses heires descendus de lui & de la fille le roy d'englitere , & except pur le dit nostre seignior le roy de france excellent prince dupert roy d'alemaigne , ses heires roy d'alemaigne , & monsieur johan counte de henan en henan , & que lun ne serra en consaile ne en aide ou lautre perde vie , membre , estate ne honour temporel . monsieur reymer grimbald maistre de la navie du dit roy de france que se dit estre admiral de la dit mier deputey person seignior avant dit pur sa guerre con●re les flemings apres le dite alliance faite & affirmee contre le forme & la force de mesme lalliance & lintention de ceux qui la firent loffice del admirall en la dite mier d'englitere par commission du dit roy de france torseous ement emprist & usa un an & plus en pernant le gents & merchants du roy alme d'englitere & daillours per la dite mier passaints ovesque lour biens & les gents ainsi prises livera a la prison de son dit seigniour le roy de france lour biens & marchandizes a les resceivors per mesme celvy roy de france a ceo deputey en les ports de son dit royalme come a luy forfait & acquis fist amener per son juggement & a gard , & la prise & detenue des dites gents ove lour dites biens & marchandises & son dit juggement , & a gard sur la forfaiture de eaux & acquest ait justifie devant vous seigneurs auditors en escripts per my lautoritie de sa dite commission sur l'admiralte avantdite per lui ainsi usurpe & per une defense communement fait per le roy d'englitere per my son poer lelon● la forme de le tiers article de lalliance avantdite qui contient les paroles desusecripts en requerant que de ceo●ill en fusse quitz & absoluts en grand damage & prejudice du dite roy d'englitere & des prelats & nobles & aultres desusnomes . purquoy les dites procurours & les noms de lours ditz seigniours a vous seigniours auditors avantditz pryent que deliverance dewe & hastine des dites gents ovesque lour biens & marchandises ainsi prises & detenues faicets estre fait al admiral du dit roy d'englitere a qui la conisance de ceo apertient de droit sicome dessus est dit , ainsi quils sauns disturbance de vous & d' aultre puisse de ceo conoistre & faire ceo que apertient a son office avant dit . et que le dit monsieur remeyr soit condempne & distreint a faire due satisfaction a touts les dits damages seavant come il purra suffire & en sa defalte son dit seignior le roy de france per que il estoit deputey al dit office , & que apres dewe satisfaction faitz as dits damages le did monsieur reymer soit si duement punis par le blemissement de la dite alliance , que ia punission de luy soit as autres example par temps a venir . item in alio rotulo annexo . item , a la fin que venes & consideres les formes des proces & les letters ordenees per les consaillers le aiel nostre seignior le roy , &c. especialment a retinir & maintenir la souveraign que ses dits ancesters roys d'englitere loloyent avoir en la dite mier , d'englitere quant al amendment declaration & interpretation des loix per eux faites a governer touts maneres des gents passants per la dite mier . et primerement a son admiral & as maisters & mariners des niefs de cync ports d'englitere , & des autres terres annexes a la corone d'englitere emendant asa armee en la dite mir pur retinir & maintenir la garde des lois avantditz , & la punission de touts faitz al encountre en la mier susdite . libri primi finis . the maritime dicaeologie , or sea-jurisdiction the second book . chap. i. that the sea jurisdiction and the land jurisdiction are , and so necessarily must be , two different and distinct jurisdictions , having no dependance each upon the other . although the exact time of the beginning or first settlement of the jurisdiction of the admiralty court here in england be not by me in the preceding book so clearly set forth as some might have expected , yet is some foundation thereof deduced from such hight of antiquity , as that i cannot but hope that the jurisdiction it self will for that cause , and what shall be shewed in this ensuing treatise , deserve a continuance to posterity . and although in the precited antient records , we find not the same title of that office observed , and kept , yet may we very well perceive the same office to have been preserved , exercised , and executed , though under several titles . and we find that in edward the first 's time ( as plainly appears by the before quoted a libel , and other before cited records ) the same was exercised under the title of the admiral : and doubtless that title was long before that time known to belong unto the chief captain , commander , or keeper of the fleets , ports , and seas , and hath been so used by many other nations in europe . however the diversity of names neither extinguisheth the nature of the office , nor doth so much as make any distinction between the one and the other person so diversly named , whilst they both bear one and the same signification . but here i shall proceed next to distinguish this jurisdiction from the land jurisdiction , and shew that the land jurisdiction and sea jurisdiction are ( and must necessarily so be ) two absolute , different and distinct jurisdictions , having no dependency one upon the other . and first these two jurisdictions are absolutely different and distinct in respect of the parties which exercise them ; the one being exercised in the active and directive part by the admirals , captains , and governors of the seas , sea-coasts , ports , and shipping , which have all or most of them from antient times been equites aurati , descended from royal bloud : noble-men , or descended from nobility , as b sir henry spelman saith . the judicial part by the judges of the high-court of the admiralty , and vice-admirals courts , learned and well verst in the civil and maritime laws , juxta illud venerabilis ejusdem c spelmanni verb. admirallo gollico pag. . nos enim , &c. de quo vide supra cap. . lib. . sub fine . the other exercised by the learned judges of the land in the courts at westminster , and within the bodies of the several counties of the nation in their several circuits ; the judges of one circuit having no authority or power over the other , nor having any thing to do to intermeddle with the other in their circuits . secondly , the court of the admiralty hath from antient times been styled suprema curia suae majestatis admiralitatis angliae ; so that the same hath antiently been styled the kings court , as well as his courts at westminster . but from the one jurisdiction there lyeth an immediate appeal unto the supreme authority in chancery , which court appointeth judges delegates by commission under the great seal ( upon the apprehension of an illegal sentence ) who are assigned and appointed judges for further hearing , deciding , and adjudging of the said sentence and cause of appeal , according to the rules of the civil law. in the other there lies a writ of error from the common-pleas to the kings-bench , and from that bench to the judges of all the three benches in the exchequer chamber . the appeal from the admiralty is for the rectifying of the sentence , as well as of the proceedings , which appeal the forraigner must be allowed , otherwise he will complain at home of injustice done here , and so proceed to the course of obtaining letters of reprisal for his satisfaction , whether the first sentenc was good or not , upon this ground only , that he had not the due course of law allowed him , for the tryal of that sentence which was first given against him . the writ of error reverseth the judgement , though never so just , if an error be found in the proceedings ; but reverseth not the judgement , though the same seem never so erroneous to him against whom it was given , if no error be found in the proceedings . thirdly , they are absolutely different and distinct in regard of the different and distinct subjects the judges of them do handle and are busied about ; they of the one being busied and occupied in the ordering and disposing of all businesses upon the coasts and havens of the seas , tending to the preservation of this nation from forraign invasion , and keeping thereof in safety and quiet ; and in the building , repairing , tackling , and furnishing , or causing the building , repairing , tackling , and furnishing of all manner or sorts of ships , boats , or vessels whatsoever for that purpose , and keeping the dominion over the british seas , and in the otherwise ordering and directing of all manner of ships , and shipping , and seafaring men , and all manner of trading , merchandising , traffique , and commerce thereby , or therewith : and in hearing , deciding , and adjudging all differences , debates and controversies arising from things done , or to be done at sea , or in any port , harbour , or creek thereof , either between the king or the lord high-admiral , and any party , or between party and party , forraigner or others , whether criminal or civil . those of the other jurisdiction being employed in ordering of all things for the good peace and quiet of this kingdome within self , and in the hearing and determining of all offences , debates and differences arising , or growing from any thing done , or to be done within the several bodies of the counties thereof , whether they be criminal or civil , whether they concern estates real or personal ; whether they be between the king , and any other party , or between party and party , which are tryable by the said law. fourthly , they are different and distinct , in respect of the rules the judges proceed unto judgement by , those of the one jurisdiction proceeding according to the rules of the civil law , known and used by all or most courts and judicatures in christendome . those of the other proceeding according to rules and laws municipal , known only unto themselves , and such as are well skilled and verst in the same , and are inhabitants and subjects of this nation . to set forth the differences between these two jurisdictions in their proceedings , was to undertake the setting down of the whole proceedings in all several causes , tryable both in the admiralty , and the common-law courts ; the one of which ( with some pains ) i might very wel do ; but the other belongs not to me to undertake : yet so much i know of them , as that i am sufficiently informed in my judgement , that they are exceednigly different even in their proceedings . fifthly , they are different even in the laws themselves , whereby the judges are guided to their determination , and directed in their giving of judgement ; those of the one jurisdiction determining according to those civil laws , which are maritime , and still retained , and kept in use in most nations in europe , adjoyning thereunto those few and short laws of oleron , with some other customary laws of the seas , which are commonly accepted and known , where such judicatories are kept and held ; and are expresly declared and published by several maritime writers . those of the other judging according to a municipal law , fitted , prepared , and composed only for land affairs , and indeed only for the land affairs of this kingdome by the advice of such as have had the best judgement in those land affairs . and as these are different and distinct from the civil and maritime laws , which have been composed by the advice of such as have had frequent traffique , trade , and commerce at sea , and by that means have had best knowledge and judgement in sea affairs : so indeed in the same manner are the civil laws which have been composed and established in other nations by such as have been of best experience in businesses of the republique , for the guiding and governance thereof distinguished and kept apart from those other civil laws which are maritime . the absolute necessity of keeping these two jurisdictions thus distinct one from the other , you shall have fully set forth in the . and . chapters of this second book , wherein is shewed the use and practice of the civil law in most forraign nations , and that the same is absolutely necessary to be used and practised in all admiralty courts , unto which two chapters i especially referre the reader . chap. ii. that the jurisdiction of the admiralty doth extend to all manner of ships , shipping , seafaring and sea-trading men . seeing then that the admiralty is a distinct jurisdiction from the land jurisdiction ; in the next place the bounds and limits thereof are to be considered , and those will best appear by the before mentioned records , of the patents and grants of that jurisdiction . first then , that this jurisdiction extendeth to all manner of ships and shipping , ( i conceive ) will not be denyed ; for it is plain by the records already quoted , that the kings had in those antient times their admirals as well for the northern seas and coasts as the western ; yea , and sometimes several admirals for one of these coasts , as in the twentieth year of edward the second , quidam a habuerunt custodiam costerarum maris inter toffe & thaw , & quidam aliarum ; and in the tenth year of the same kings reign , one w. 〈…〉 had the same power ab ore aquae thamesis usque ipswic . and johannes de thorpe ab ipswic . usque linn . shall we think then that this king had in those times ( when shipping was farre more scarce then it hath been since ) in each of these coasts , and in every of these particular places within these coasts ( where he had capitaneum & admirallum flotae suae ) a fleet consisting of his own particular ships , which he called flota nostra , which required a captain and admiral to govern them ? certainly no , but all ships , boats and vessels whatsoever belonging unto sea , tam remiculi , quàm corbitae sive gauli ; tam naves frumentariae sive onerariae , quàm naves praesidiariae : tam beucentauri , quàm naves praetoriae sive navarchae , &c. were all comprehended under flota navium . and this is plain , for that these governors were sometimes stiled b capitanei navigii , as well as capitanei & admiralli flotae navium : and that navigium signifieth all manner of shipping , i have already shewed . and likewise very many of the antient patents expresly run flotae nostrae omnium navium ; i shall instance only in one or two , as in that of the ed. . which runneth thus : rex omnibus ad quos , &c. salutem ; sciatis quod nos de fidelitate probatâ & circumspectione providâ dilecti & fidelis nostri rogeri de hengham plenariè confidentes , constituimus ipsum rogerum capitaneum & admirallum flotae nostrae omnium navium , &c. tam quinque portuum quam aliorum portuum & locorum per costeram maris versus partes , &c. and in that of the first of edward the third , in these words , rex omnibus ad quos , &c. salutem : sciatis quod nos de circumspectione & fidelitate dilecti nobis johannis parbroun confidentes , constituimus eum capitaneum & admirallum flotae nostrae omnium navium magnae jernemouth , & omnium aliorum locorum , &c. per costeram maris versus partes boreales quamdiu nobis placuerit , &c. so that these who were admirals of the kings fleet , were admirals of all ports , and admirals of all ships of all ports . and as it extendeth to all manner of shipping , so doth it extend unto all manner of shipmen : for to little purpose was it for the admiral to have had power and authority over the wooden vessels , if they had not had power over all the seamen and mariners in them , yea , and over all others that belonged thereunto , or had to do therewith , or were skilled therein . for by almost all the beforecited patents they had not only potestatem super omnes & singulos marinarios , but also super omnes de flotâ , of or belonging to the fleet , navage , ships , or shipping , as well the owners of them , the merchants and traders with them , and imployers of them , as the mariners of what degree soever , sailing in them , or in any wise belonging to them , tam mercatores & exercitores , quàm proprietarios ; tam naucleros , quàm helciarios ; tam gubernatores , quàm diaturios ; tam proretas , quàm mesonautas : and not only over these , but also over all such as were imployed in their art , trade , or occupation , for and towards the building , repairing , fitting and furnishing of ships for navigation and setting them forth to sea , as ship-wrights , anchor-smiths , rope and cable-makers , and the like , tam fabros anchorarios quàm naupegos , prymnesia anchoralia , retinacula puppis stupea , & sunes nauticos , tam venditores , quàm fabricatores , &c. all which were said to be de flota navium , or de navigio ; of or belonging to the fleet or navage ; and were those o●●es alii de flotâ , over whom the admirals had command , power , and authority , besides the mariner ; as is set forth in the forementioned records . and as it had been to little purpose for the admiral to have had power over the vessels , and not over the mariners and seamen , and others fit for that imployment ; so had it been to as little purpose , if he had not had the same power over the owners of them , and the merchants that employed them , who otherwise would have either opposed his directing the use of them , or his own using of them at all , though for the service of the king , and good of the common wealth . and to as little purpose had this extent of his jurisdiction been , had he not had the command over all such as were most able and skilfull to fit and furnish them for service . and the constituting of a man capitaneum & admirallum flotae navium , capitaneum navigii , custodem marinae , capitaneum nautarum & marinellorum , &c. doth give a very great power not particularly specified in the grant. for all men very well know , that all patents and grants , as well of offices and places , as of lands and other things , did in antient times comprehend and contain in them very much , in a very few lines and words ; and have been daily enlarged by particular expressions , and singular specifications , when as nothing more hath been granted , then what was by general words granted before : and the reason hath been , lest some particulars in process of time might be lost for want of continual use , or drawn into question , and cavilled against , whether used or not used . yet have i seldome met with any of these specifical grants that do trust to such specification , without the general addition , & omnia alia pertinentia , or the like , lest in their particular specifications they should lose somewhat of that which was formerly granted in general words , and by some perhaps observed , and known to be appertinent , and belonging unto the thing granted , though for some time discontinued . we must not think therefore that by specifying particulars , and stretching a conveyance of half a dozen lines into whole a skin of parchment or more , one foot of land is gained the more thereby : for if so , i might very well conceive , that the seller oftentimes might by that means sell more then his own . for i have often seen many more particulars specified in the conveyance from the seller , then were ever intended by the conveyance to pass to the buyer , or the seller had to sell . and indeed this enlarging of conveyances and grants is so usuall , that a man might very well conceive ( the evidences being perused from the first to the last ) that every alienation had begot an enlargement of the estate , when nothing at all hath been added thereto . we must not think therefore , that because there have been more particulars of the admirals power and jurisdiction specified in the latter grants , and patents , then were in the former and more antient ; that therefore these latter admirals have gained greater and larger power and jurisdiction then the former had . nor certaily can any thing be gained by specifying particulars ; something may be saved , and somewhat may be very well lost , if & omnia alia save it not . i will not deny but that there may be , and deyly are made unto manors , lands , and tenements , many additions , whereby they are much encreased . and likewise to offices and other places , both in extent of office , and increase of fees , or other profits : but these additions do , and alwayes will appear by the deeds of conveyance , grants or patents themselves , and are distinguished from the antient manors , &c. and their appurtenances ; and from the antient offices and places , their rights and profits , by et praeterea , or ac etiam , or ac similiter , &c. and where there is an addition , these words or the like always are ; but always where these words are , there is not always an addition ; for they are sometimes used by way of specification ; and sometimes instead of an et , between two specifications . now in antient times , the very constituting an admiral , captain , or governour of the fleet or navage , carried with it all the power and jurisdiction belonging unto that office or place , without specifying any of the particulars ; and when any particular designe was in hand at the time of the constituting and making of the captain or admiral , or whatsoever other title he bore ( as often such designe at that time there was , which caused the change of the admiral ) then was that particular power which belonged unto his office , and concerned that designe , specified either in the mandate directed to all sheriffs , and other ministers and officers for their obedience unto him , as admiral , captain , &c. but in such manner as sheweth that particular to be included amongst the many other particulars granted unto him by his patent , under the general words , constituimus dilectum & fidelem n. capitaneum & admirallum flotae navium , or capitaneum navigii , &c. or else that particular , when any is specified in the body of the patent with an ita quòd , ut ita quòd potest hoc vel illud facere ; which plainly sheweth that that same particular was before amongst others granted in the preceding general words . i shall here set down only one example of each . king edward the second in the tenth year of his reign , grants a patent of this office to john-de athy under these general words . rex omnibus ad quos , &c. salutem : sciatis c quòd constituimus dilectum & fidelem nostrum johannem de athy capitaneum navigii ad partes hiberniae , &c. quamdiu nostrae placuerit voluntati , in cujus , &c. teste rege apud claringdon die martii per brev . de privato sigillo . and he giveth this mandate upon the constituting of him , et d mandatum est vicecomitibus , ballivis , ministris , & omnibus fidelibus regis marinariis , & aliis ad quos , &c. quôd eidem johanni , tanquam capitaneo navigii praedicti , in omnibus , quae ad salvam & securam custodiam terrarum praedictarum pertinent , consulentes sint , intendentes & auxiliantes , quotiens opus fuerit , & per ipsum johannem fuerint super hoc ex parte regis praemoniti . t. ut supra per brev . de privato sigillo . and having given this command in general to all officers , quod in omnibus consulentes sint , intendentes & auxiliantes ; yet lest they might perhaps not understand one particular of extraordinary great power to be comprehended in the admirals patent under these general words , constituimus capitaneum navigii , by another mandate he declareth that he had made him captain of the navage , and thereby given him this power ; and these are the words of the mandate . rex omibus ballivis , ministris , fidelibus suis , ad quos , &c. salutem . e cum constituerimus dilectum & fidelem nostrum johannem de athy capitaneum navigii ad partes hiberniae , &c. dedimus ei potestatem ad eligendum homines sufficientes , ad arma potentes , prout sibi viderit expedire ad morandum secum in navigio praedicto pro defensione & salvatione terrarum praedictarum , & ad puniendum illos , quos in hâc parte contrarios invenerit , & rebelles ; & ideo vobis , & cuilibet vestrum firmiter injungendo mandamus , quod eidem johanni in praemissis omnibus & singulis intendentes sitis & auxiliantes , quotiens & quando per ipsum super hoc fueritis ex parte nostrâ . praemoniti . t. ut supra per breve de privato sigillo . now by the repetition of the patent it self here , wherein not one word of this particular is exprest , and by these words , dedimus potestatem , &c. we have given him power , is plainly set forth and shewed , that this particular amongst others was granted under those words , constituimus capitaneum navigii . but i shall proceed to another example , where another particular is specified in the body of the grant , with an ita quod , after the constitution it self , which likewise sheweth that that particular was comprehended in the very constitution , and granted before in the general words : and this is a patent granted in the year of edward the first , which followeth in these words . rex , &c. f universis & singulis vicecomitibus , ballivis , ministris , & fidelibus suis , ad quos , &c. salutem : sciatis quòd constituimus dilectum & fidelum nostrum willielmum leybourne capitaneum nautarum & marinellorum nostrorum , quinque portuum & membrornm eorundem , & similiter jernemouth , bayon , hiberniae , walliae , & omnium aliorum portuum , & locorum , in quibus naves sive battelli applicant infra regnum & potestatem nostram . et etiam militum & aliorum fidelium nostrorum quicum ipso per praeceptum nostrum in flota navium , ipsorum nautarum & marinellorum per partes maritimas , & costeras maris contra inimicos nostros sunt profecturi . ita quòd idem capitaneus per se & alios , quos per literas suas patentes sigillo suo signatas , assignare , deputare , destinare voluerit , capere possint , & secum ducere homines idoneos & potentes ad arma , naves , bargeas & battallas , victualia & alia quae ad expeditionem eorundem necessaria fuerint , & etiam quòd capere possint armaturas per visum dicti capitanei , ab illis a quibus idem capitaneus eas viderit capiendas , dum tamen hujusmodi victualibus & aliis necessariis , quae ad eorum , capitanei nautarum & marinellorum sustentationem sic capita fuerint , satisfacient illis a quibus ea ceperint , juxta rationabile pretium eorundem , & de armaturis similiter , vel sufficientem securitatem inveniant de ipsis armaturis restituendis . et ideo vobis omnibus & singulis mandamus , & in fide quà nobis tenemini praecipimus firmiter injungentes , quòd praedicto willielmo tanquam capitaneo praedictorum nautarum , & marinellorum , militum & alorum praedictorum , & aliis quos idem willielmus per literas suas patentes assignaverit & destinaverit , sicut praedictum est , in praemissis omnibus & singulis , sitis intendentes , respondentes , auxiliantes , & obedientes , prout vobis scire faciet ex parte nostrâ in cujus , &c. bas literas nostras fieri fecimus patentes quamdiu nobis placuerit duraturas . t. r. apud westm . junii . et g mandatum est vicecomiti northumbriae quòd praedicto willielmo tanquam capitaneo praedictorum nautarum , marinellorum , militum & aliorum praedictorum & aliis quos idem willielmus per literas patentes suas assignaverit & designaverit , sicut praedictum est , in praemissis omnibus & singulis , sit intendens , respondens , auxilians & obediens , prout eidem vicecomiti scire faciet ex parte regis . t. r. apud westm . . die junii . eodem modo mandatum est . vicecom . ebor. vicecom . lincoln . vicecom . norfol. & suffol . vicecom . essex . vicecom . cant. vicecom . sussex . vicecom . southampton . vicecom . somers . & dorcest . vicecom . devon. vicecom . cornub. vicecom . gloucest . vicecom . lancast . roberto de tybotot justic . west-wall . vel ejus locum tenenti . roberto de staundon justic . north-wall . et ejus locum tenenti . reginaldo de grey justiciario cestren , et ejus locum tenenti . the record sets forth first the grant in general , which is comprised in the former words thereof , viz. constituimus ▪ willielmum leybourne capitaneum nautarum et marinellorum nostrorum , militum , &c. then it is declaratorie , and specifieth some particulars of his power , which are comprehended under those general words of the grant , which being not often used or put in execution , might cause some to doubt whether ever they have been used at all or not ; and so to question whether such particulars were comprehended in the grant by those general words or not , being things of so great and high authority and power : therefore are these words ita quòd inserted , which do not import the concession of any further power or authority then what was granted before : but in all manner of reading they intimate that by the consequent words is understood or shewed either some inherent or adherent power , property , or quality , which is comprehended under the precedent words . it rests then that these specifical words inserted in this patent , are only declaratory , that such power and authority doth belong unto that great officer and governor of the seas , by virtue of such his office : for though first the imployment begets the officer , and so consequently the office ; yet when it is become an office , the very constituting of the officer , and granting of that office , is the granting of all the imployment that hath belonged thereunto . these last cited records do manifest the great power and authority which the great officers of the seas had , and hath over all manner of shipping , ships , boats , and barges whatsoever , within the limits of his jurisdiction , and over all manner of men , ammunition , victual , tackle , and furniture thereunto belonging ; and the power and authority he had and hath over all sheriffs , bailiffs , and other ministerial officers , who were and are to be attendant , aiding , assisting , and obedient unto his and his deputies commands , in the execution of the office , of so great power and trust ; yea , and they were and are to be so attendant , and obedient , in regard and respect of the office it self ; for the records do run with an ideo , therefore : as constituimus n. capitaneum & admirallum , &c. vel similiter : ideo vobis mandamus , &c. quod praedicto n. capitaneo , &c. in omnibus et singulis sitis intendentes , &c. the governor of the seas having then with the assistance and obedience of these other officers , had so strong a power , and full authority and jurisdiction from the king himself , over all these things : who else could have any thing to do therewith , or with any differences , debates , controversies , or whatsoever else arising from , or concerning the same ? chap. iii. that the ports and havens , and creeks of the sea , are within the jurisdiction of the admiralty . it is affirmed by some , whereof that most famous lawyer sir edward coke is one , that the ports , creeks , and havens of the sea , are within the bodies of the counties , and are not within the jurisdiction of the admiralty . his bare assertion in his own learning may ( i confesse ) very well pass for authority ; but in the decision of this matter , between that jurisdiction he himself exercised according to the municipal laws of this nation , and whereof he himself was a professor , and a judge ; and that other jurisdiction exercised by a professor of another law so distinct and different from his , viz the civil and maritime laws ; he hath in my judgement , shewn himself extremely partial , and much different in opinion from some others which sate in his place before him , as i shall plainly shew hereafter : and i must confess it sounds very strangely in my ears , to hear that which hath ever since the sea was called the sea , been called an arme of the sea , now called an arme of the land , or an arme of a county , or the part of the body of a county ; much less then will it sink into my understanding how it comes to be in the body or heart of a county , when for the most part it separateth one county from another . but it hath been an antient assertion and observation , that where any land or ground is gained from the sea in one part , or on one side thereof , the sea doth gain as much upon the land in some other part , or on the other side thereof : and so it seems the sea hath gained upon the land of all or most other nations on the other side , and beyond the seas , insomuch that their admiralties swell , and the sweetness of that gain and profit they reap by sea-trade and commerce with other nations , hath caused them to add daily new priviledges thereunto , rather then to diminish or take away any of the old . and england instead of what the sea hath gained upon the land of other nations , hath gained upon the sea ; and being less considerate or carefull of the commodity and gain the sea-trade and traffique bringeth it in , had once well-nigh quite destroyed that antient jurisdiction , which is not yet quiet , but continually spurned and kickt at : for put all that together which sir edward coke would prove , and some that have followed him would approve , and they would leave the admiralty very liitle or no jurisdiction at all , and but little more then a bare and naked title , as shall hereafter be shewed . and it would have sounded as strangely to me to have heard of ships lying and riding at anchor within the body of a county , but that i have heretofore often heard of their often riding and lying at anchor in parochiâ sanctae mariae de bow in wardâ de cheap . the arguments that are by him used for the proof of this particular , that the ports and havens are within the bodies of counties , are confounded with those whereby he endeavoureth to prove the admiralty to have no jurisdiction within those ports , havens and creeks ; and what is used for the proof of the one , is used for the proof the other , and will come to be considered altogether . yet when he hath used all his arguments to prove these his assertions , out of his ingenuity confesseth the antiquity of this jurisdiction to be fetched from far more antient times , then the reign of a edward the third , in whose dayes ( as saith ) some have dreamed it began . and for proof hereof he sets down word for word ( as he saith ) the libel , ( which i have before quoted out of the tower roll , and is likewise quoted by mr. selden ) of edward the firsts time . and after that , b to shew that of antient times there were several admirals , for that ( as he affirmeth ) the wisdome of those dayes would not trust one man with so great a charge , nor any man to have a certain estate in an office of so great trust , he sets forth several of those records which i have cited before out of the tower rolls , for proof of the antiquity of that jurisdiction , none of them serving at all to his former purpose , but some of them may very well serve against it ; as that of the th year of henry the third ; which he setteth forth thus . petrus ryvale capitaneus pictaniae habet ad totam vitam suam custodiam omnium portuum , & totius costerae marinae angliae , excepto portu de dover , qui est in custodiâ c huberti de burgo . so that he reckoneth this man amongst the admirals , ( as indeed he could do no less , he having that office and place ) and he doth acknowledge , that by his patent he had , custodiam omnium portuum & totius costerae marinae . now to have custodiam portuum , and to have no jurisdiction or power in portibus , can in no mans judgement seem less then a plain contradiction . and in like manner he quoteth another of the th of edward the first to the very same purpose , which runneth thus . johannes botetort , custos regis portuum maritimorum , versus partes d boreales , marrii . now will any man say that john botetort was the kings keeper of his maritime ports , and yet averre that they are no part of his jurisdiction , or affirme that he had nothing to do therein or therewith ? surely they be called portus maritimi , which are ports belonging to the sea , and ports so far from being within the bodies of counties , that they do not so much as belong thereunto ; they are portus maritimi , ports of the sea , or belonging to the sea , or which warranteth our vulgar language , the sea-ports , and are not part of either land or county , or of or belonging thereunto , and are absolutely and properly the homogeneal parts of that homogeneum totum , the sea , and and no heterogeneal parts of the land , as the fresh water rivers springing out of the land , and contained in the bodies of the counties thereof , are . he instanceth in another record of the th of edward the second ( as he saith ) but indeed is the th , which he setteth forth in these words . nicholaus kyriell e constituitur admirallus flotae omnium navium , &c. tam quinque portuum , quàm aliorum portuum & locorum per costeram maris versus partes occidentales , quamdiù regi placuerit . teste rege apud turr. london . decembris . and another of the first of edward the third , which runneth thus . warrosius de valloignes constituitur capitaneus & admirallus flotae navium , &c. tam quinque portuum , quàm aliorum portuum & locorum , per costeram maris versus partes f occidentales , quamdiù , &c ut supra . the two former records were , one of them in the reign of king henry the third , the other in the reign of edward the first ; and these two are one of them in the reign of edward the second , and the other in the first year of edward the third : and indeed most of the records which are in the reign of these four kings , ( viz. henry the third , and the edwards ) which concern the grant of this great office , are of the same nature with these four , and run in such like , or in the very same words with these but more especially , and most frequently agreeable to these two last ; and so do most of those g grants which were in henry the fourths time , as may appear where i have set them down in order . and these may bear a double construction , and two several sences and meanings , but not so different but that the best of them that can be made for the quoter of them will serve to confute and destroy his new-set-up opinion and assertion . take this construction first , and read them in this sence , constituitur capitaneus & admirallus flotae omnium navium , &c. capitaneus & admirallus tam quinque portuum quàm aliorum portuum , & capitaneus & admirallus omnium aliorum locorum per costeram maris : that he is captain and admiral of the fleet of all ships ; captain and admiral as well of the cinque ports , as of all other ports , and captain and admiral of all other places by the sea-coasts towards the western parts . and the first two records of these four by him cited for concordancy and agreement sake , do warrant this construction ; and that the same may be made of the words , as without any incongruity or trespass at all upon priscian , so without any falsehood at all of the matter : for the first two records , the one giving the admiral custodiam omnium portuum & totius costerae maris : and the other making him custodem regis portuum maritimorum , do warrant the truth thereof : and then are these two last a confirmation of the two first , and argue the same thing , besides what else may be gathered out of them , against the truth of that assertion . for certainly he that had custodiam portuum , and was custos regis portuum , had the rule , governance and ordering of all things in or belonging unto those ports , and that by way of judicature , according to the civil and maritime laws : for it 's plain by the libel , sir edward coke himself hath set down which i formerly quoted , h that these admirals in these times had 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , jurisdictionem sive potestatem audiendi & determinandi causas secundum jus , as i have said i before ; or take the words as they run in the patents themselves , viz. rex omnibus ad quos , &c. salutem . sciatis quod nos de fidelitate probatâ & circumspectione providâ dilecti & fidelis nostri n. plenariè confidentes , constituimus ipsum n. capitaneum & admirallum flotae nostrae , omnium navium , &c. tam quinque portuum quàm aliorum portuum & locorum per costeram maris versus partes , &c. and afford them what construction can possibly be strained out of them to save this assertion harmless , yet will it thereby be scattered and torn all to pieces . take it then in this construction , viz. we make him captain and admiral of our fleet of all ships of all ports , as of or belonging to all ports , &c. will any man say that he that is admiral of all these ships , that belong unto these ports , is not admiral of them , whilest they lye or ride at anchor within those ports , and are not riding super alto mari ? and that he hath not the rule , governance , and command over them whilst they lie there ? if so , let him say likewise he hath no power , governance , or command over them untill he find or take them upon the main sea , which ships he never took out of any of those ports or any other . the admiral therefore must have jurisdiction and power upon the creeks , ports and havens , or else his power at sea will come to little or nothing . i shall give you here but one instance which will shew the necessity of his having jurisdiction upon the ports and havens as well as upon the high seas . if one ship shall do damage to another either upon the main sea , or upon any creek , port , or haven , the damages must be sued for in the admiralty court , and judgement given according to the maritime laws , which prescribe every ship her rule , how to steer her course , both going out to sea , or coming home from sea , or riding at sea ; which plainly demonstrateth which ship was in fault , by which the judgement must be regulated , for which the common law hath no rules at all , nor can any action properly by the rules thereof be commenced at that law for these damages : for that the owners damnified can very hardly arrest all the owners of the other ship which did the damage : nor indeed can any of those owners by that law , as i have been by some of the learned of that profession informed , be lyable to such arrest , but the master only ; who , if solvent , will not come on shore , but take his imployment in some other ship outward bound ; if not solvent , the arrest will be to little purpose : so that the remedy lyeth only against the ship by the civil and maritime laws , according to the course thereof , which proceedeth in cases of this nature by way of several defaults , &c. which either will bring in the owners to answer the action , or make the ship lyable to make satisfaction for the damage done , in so much as she is worth ; which course of proceedings the common law hath not . chap. iv. the arguments deduced out of the statute law , to prove the ports , havens , and creeks of the sea , to be within the bodies of counties , and not within the jurisdiction of the admiralty , redargued . had this been but a bare assertion , that the ports , havens and creeks of the sea are within the bodies of counties , and not within the jurisdiction of the admiralty , more needed not ( i conceive ) have been said then what hath been already said , in the former chapter : but the arguments that are used for proof thereof , will necessarily require a farre larger discourse for answer thereunto , and further confirmation of the contrary . for here i am to encounter a great antagonist , the forementioned sir edward coke , sometime lord chief justice of the kings bench , a man most famous for his knowledge and pains in the laws of this nation , whose memory undoubtedly is still not undeservedly honoured : yet though my encounter be upon this disadvantage , i doubt not but to give satisfaction to a judge indifferent between both jurisdictions and professions , as well in this point , as in some other things by him asserted . for the proof of this point , he first asserteth the statute of the fifth of a elizabeth , cap. . which ( saith he ) describeth particularly the limits of the lord admirals jurisdiction , in these words : all and every such of the said offences before mentioned , as hereafter shall be done on the main sea , or coasts of the sea , being no part of the body of any county of this nation , and without the precinct , jurisdiction and liberty of the cinque-ports , or without any haven , or pear , shall be tryed and determined before the lord admiral , &c. so as ( saith he ) by the judgement of the whole parliament , the jurisdiction of the lord admiral is wholly confined to the main sea , or coasts of the sea , being no parcel of the body of any county of this nation . in answer hereunto , i do deny that these words in this statute do prescribe particularly the limits of the lord admirals jurisdiction , if he mean his whole jurisdiction in general : but i will confess they do prescribe him certain limits , quoad the increase of his jurisdiction , by making the particular acts before mentioned in the statute , to be offences , and punishable , and do declare that his , and the warden of the cinque-ports jurisdiction upon the main sea , shall be increased , by having granted unto them the cognizance of such of the before mentioned offences , as should be committed thereupon , and do restrain his jurisdiction within the ports and havens to what formerly it had , without having any increase thereof by the cognizance of such the before mentioned offences , as should be committed thereupon ; and this appeareth plainly out of the words by himself recited , viz. all and every such of the said offences before mentioned shall be triable thus and thus , not having any relation unto any offences , or causes triable , either before the admiral , or cognoscible by any other judge . and indeed if we look backward to those offences before mentioned in the statute , which can be committed in or about the havens or ports , we shall find that they are not of the nature of such civil and maritime causes , or offences , as are subject unto that jurisdiction of the admiralty . the particulars are these . . that any subject may carry sea-fish forth of the realm in any of the queens subjects ships , without paying custome . now we know very well that the paying of custome in every port town belongeth to a peculiar office for that purpose , and the admiral neither doth , nor did for many years meddle therewith . . that no person in any port , city , town , market , or other place , shall set price , make restraint , take or demand toll , or tax of any sea-fish to be brought into this nation , being taken and brought in in subjects ships . here port is taken for the port-town , or haven-town : for the prising , taxing , and tolling of commodities is done upon the land , after the goods are unladen , and not whilest they are aboard the ship or vessel , and therein so stowed , as that they can neither be numbred , weighed , nor viewed . and the port town is here only collectively named with other cities , towns , markets , and places , ( as appeareth plainly by the words of the statute , as they run together ) to include all sorts of towns ; nor doth , or ever did the admiral any more meddle with the prising , taxing , or tolling of commodities within any such towns , more then he doth or did with the customes thereof . . that no pourveyors should take any sea-fish , brought in such ships , under the forfeiture of the double value . . that no man shall buy of any stranger , or out of any strangers bottom any herring , or other sea-fish not salted , packed or casked , under pain of the forfeiture of the fish so bought , or the value thereof . . that no wares may be carried from any port of this realm to another . . that all codd and lings be brought into this realm loose , and not in barrels . . that no wine be brought forth of france , nor any wood brought into england but in english bottoms , all under pain of forfeiture : and being so , they are by this statute become to be of the nature of prohibited commodities ; for discovery whereof , there be in all ports certain searchers appointed which bring the same under forfeiture ; and the admiral deals not therewith , but only with such prohibited commodities as are prohibited to be transported beyond the seas , and are de facto so transported , having escaped the searchers hands . and in such cases the admiralty hath the power of punishing such as have so offended ; for that the fact cannot be made appear but by examination thereof by way of commission out of the admiralty in the place where the said goods were unladen and landed . the restraint therefore upon the admiral and warden of the cinque-ports by this statute in these cases , is , lest they , having jurisdiction as well upon the havens and ports of the sea , being parts and members thereof , as upon the main sea , should ampliare jurisdictionem , and take the cognizance of these things to their courts , and abridge the customers and searchers of that power which belongeth unto their offices and places . and indeed this restraint in this statute upon the lord admiral , the judge of the admiralty court , and their surrogates , and upon the lord warden of the cinque-ports and his lieutenants , is a strong argument that in other matters they have full power , governance , and cognizance upon the ports and havens as well as upon the main sea ; otherwise needed not these particular offences to have been excepted from their power and cognizance there : and this exception of these particulars from their cognizance there , concludeth other things in general there done to belong thereunto : for quicquid accipitur in particulari , praesumitur esse in generali : the admirals cognizance upon the ports and havens is by this statute excepted from these particular offences there done , and is therefore presumed to be full in other general offences thereupon committed , and not otherwise excepted therefrom . and other rules there be that confirme this argument , as that , id à quo fit exceptio , fit universale , ut possit distribui : these particular offences are excepted from the admirals cognizance upon the ports and havens : and therefore his cognizance there must be universal ; so that from that universal cognizance there , these particulars may be excepted and divided . and , id quod excipitur , seu subjectum exceptum , debet contineri sub excipiente , seu eo à quo excipitur : and again : quod excipitur debet esse angustius eo à quo excipitur . and further , the restraining of the admirals jurisdiction from medling with these particulars , upon the ports and havens , doth not restrain his power from medling with other matters or offences done , and committed thereon ; for the barring of his cognizance of these particulars there , is but a limitation of his general power there ; et omnis limitatio fit per id quod subjecto aut praedicato congreuenter inest . for the argument then , that is deduced from this statute , which concludeth that the limits of the lord admirals jurisdiction are thereby described , and by the judgement of the whole parliament ( as is asserted ) confined unto the main sea , or coasts of the sea , there is no other question to be made of it , then whether it shall overthrow and destroy all these logical rules , or they it . another answer may be given to this argument , by distinguishing upon the word port or haven , as it is taken in a double construction , and beareth a double acceptance , warranted by mr. serjeant callis in his b reading at greys-inne . upon the statute of sewers h. . cap. . who in his first lecture , to the diversity between a creek , haven and port p. . . saith that a haven properly is a safe place of harbour for ships , but may be without any priviledge at all : and then maketh mention of such as are alwayes graced with legal priviledges ; and for this he quoteth the statute of magna charta , in these words : quod omnes communitates & barones de quinque portubus , & omnes alii portus , habeant omnes libertates & liberas consuetudines : that all common societies of ports , and barons of the cinque-ports , and all other ports may have their liberties , &c. which can be no otherwise understood , then that thereby is meant the common societies of port-towns , the barons of the five principal port-towns , and all other port-towns may have their priviledges , &c. so that a port-town is ordinarily termed a port , as well as the port it self ; and so is a haven town , &c. though not so properly . and the words of the statute ( saith he ) confirme my former definition of ports to be true ; and this is his definition ; a port is a harbour , and safe arrival for ships , boats , and ballengers of burthen to freight and unfreight them at , not in : so that we see that he maketh the haven where ships lie at anchor , to be a port , and the town whereat they lade and unlade , to be a port ; and so the same author maketh costeram maris to contain the shoar and banks , as well as that part of the sea adjoyning thereunto : and he proveth it out of the statute of eliz. cap . which act was made for the mending of the banks and sea-works on the sea-coast . and out of the th chapter of macchabees , where demetrius son of seleucus came to a city of the sea-coast , &c. ut in ejus libro p. . so that in common acceptance the places adjoyning to the sea-coasts for their adjacency , are called and taken for coasts , as well as the coasts themselves ; and the towns or cities adjoyning to the ports , for their adjacency , are termed ports as well as the ports themselves : and then it may very well be answered , that the words in this statute , out of any haven or port , are meant of the city or town thereunto adjoyning , and so called : and this , the offences in that statute mentioned , unto which this clause hath reference and relation , will warrant . but more i shall not say concerning this argument , but shall come to that which the same author further inferreth upon his own conclusion , when as his premisses can no way be granted ; which is that of job the th chapter , the , , . verses , that almighty god ( as he himself out of a whirlwind spake ) hath shut up the sea within certain dores or bounds : quis conclusit mare ostiis , quando erumpebat quasi de vulvâ praecedens ? circumdedi illud terminis meis , & posui vectem & ostia , & dixi , vsque huc venies , & non procedes amplius , & hîc confringes tumentes fluctus tuos . hence i do conceive that he would inferre , that god then put the dores of the seas , where he himself by his interpretation of this statute would now put them , between the high seas and the ports and havens . but then he must have said , that when god put them there , he then left them wide open , and never shut them since ; for sure i am the sea was never yet shut out of the ports and havens , if we mean the ports and havens where ships do ride , or lye at anchor ; and not the port or haven towns so termed , by reason of their adjacency so near unto them . nor can it be allowed by what is here urged , that there they were put standing wide open : for he that saith posui vectem & ostia , saith & dixi , vsque huc venies , & non amplius . so that we see his doctrine suits not to this text ; but the text it self may very well serve for my purpose , that god himself hath put the gates and dores of the sea , and hath himself appointed its limits and bounds to be those , within which it is by his own power terminated . and look how farre it extendeth it self , so farre it is sea ; and there , and no where but there , hath god placed these gates and dores , and terminated its limits and bounds by man unalterable . chap. v. the argument deduced from the first judgement at the common law , that the ports and havens of the seas are within bodies of counties , redargued . other arguments there are by sir edward coke , deduced out of the judgements and judicial presidents at the common law. i shall first begin with the judgements . and the first that he urgeth , is a judgement given in the court of common-pleas ; hil. h. . rot. . between john burton plaintiffe , and batholomew put defendant ; and the case was ( saith he ) upon the a statutes of the rich. . cap. . the rich. . cap. . and the statute of the hen. . cap. . b upon which statutes the said bartholomew having sued the said john burton in the admiralty court before thomas duke of exeter , then admiral of england , for that the said john burton with force and armes the second day of september anno h. . c three ships of the said bartholomews , with his prisoners and merchandises , to the value of marks s. d. ob . in the same ships being , did take and carry away , supposing by his libel the same to be taken away super altum mare , upon the high sea , judgement was given that the taking aforesaid was infra corpus comitatùs in bristol , the said ships lying in the haven of bristol , and not upon the high sea , contrary to the forme and effect of the said statutes ; the parties having descended to an issue , which was found for the plaintiffe , and damages to l. and this is the judgement he quoteth , et super hoc audito tam recordo quam veredicto praedicto , & per curiam plenius intellect . consideratum est , quòd praedictus johannes burton recuperet versus praefatum bartholomeum damna sua praedicta occasione attachiamenti prosecutionis , & vexationis , quàm missarum & custagiorum ad septuaginta libras per juratores praedictos superius assess . in duplum per statutum , &c. quae damna in duplo se extendunt ad mille & l. et idem barthol . poenam decem librarum erga dom. regem nunc per statutum incurrat & capiatur , &c. querens remittit l. and he saith that it appeareth by the record , that this being the first case that can yet be found , that received judgement in the court of common-pleas upon the said statutes , and that the same depended in advisement and deliberation eight terms , whereby it plainly appears ( the time being computed from the making of the said statutes , whereon this action was grounded to the time of the judgement hen. . ) that the courts of common-law had not for above years after the making of these statutes , ever medled with causes of this nature . nor can it ( i am confident ) be found that cases of this nature , were any of those cases wherein the admirals had encroached upon the common-law , before the making of the said statutes ; and what ground these statutes then gave them for this judgement , i could wish he had reported with the judgement it self . the statutes i have endeavoured ( to the utmost of my weak skil ) to examine one by one , but cannot find that in such cases as this the admiralty was by them in any wise prohibited to proceed : of which examition of mine , i shall hereafter render the best accompt i can , more especially when i come to treat of contracts made at land of and concerning maritime and sea affairs ; d but i must here in the first place examine the observations by sir edward coke himself gathered out of this judgement . from the whole he gathereth these four observations . . that it is contemporannea expositio , being made within years of the making of one of the said statutes ; and he saith that contemporanea expositio est optima . . that albeit the said three ships , with the prisoners and merchandizes in them , lay in the haven inter fluxum & refluxum aquae , and infra primos pontes , yet that the haven is infra corpus comitatûs , and that for taking of the ships , with the prisoners and merchandizes in the same , no suit ought to be had in the admiralty court , but at the common law. . that the court of admiralty hath no jurisdiction , but super altum mare , which is not within any county ; for the record saith ( as he averreth ) that the said three ships , with the prisoners and merchandizes in the same , did lie infra comitat. bristoliae , & non super altum mare , as the plaintiffe in the admiralty court supposed the same to be . . that this judgement so solemnly , and with such advisement given , if it were alone , were sufficient to give full satisfaction in this point : for , saith he , judicium est tanquam juris dictum , & judicium pro veritate accipitur . i conceive that by two of these four observations ( the first and the last ) he endeavoureth to prove that this judgement is a good judgement , which ought to be observed ever after for law ; which if he hath thereby proved , the two other ( the second and third ) may be deduced into some conclusion , otherwise not . he then that will examine the argument comprehended in these two observations , must deduce it thus ( or else he shall find no argument therein at all ) viz. a judgement given per contemporaneam expositionem of a statute or statutes made within twenty years after the making of one of them , and that solemnly upon two years advisement given , is a good judgement ; which ought ever after to be observed for law. but this judgement was given by a contemporary exposition of the said statutes , made within twenty years after the making of one of them , and that solemnly with advisement by the space of two years ; therefore this judgement is to be observed for law ever after : then will the other two observations be easily deduced into a conclusion ; otherwise not . but i must crave leave that without offence i may call into question the truth of the premisses , out of which this conclusion is deduced . first then , whether a judgement given per contemporaneam expositionem of a statute made within the space of twenty years next before such interpretation or exposition ( though solemnly advised on by the space of eight terms , which is two whole years ) must necessarily be ever after observed for law , is that which first cometh in question . under correction i conceive that neither the time of such interpretation or exposition-making , nor the deliberate advisement thereupon , conclude this necessity , that the judgement thence proceeding must be ever after observed , nay , i conceive it ought not ever after , or at all to be observed , unless such exposition be grounded upon both law and reason , or at least one of them . this is said to be the first and leading case , and so the first exposition of those three before mentioned statutes made to this purpose : and therefore the law and reason whereupon such exposition had its ground and foundation , might very well have been expected to have been there by him set down , where the judgement it self is urged ; but finding neither , i have according to my weak abilities endeavoured to search both or either of them out ; but indeed am so thick-sighted , that i can find out neither the one nor the other to warrant the same . the statute of the eliz. . before d mentioned and urged for the proof of this assertion might , had it been made before this exposition of the other three , have set some colour thereon , but no more then a colour : for there is nothing therein contained substantial , that could have afforded this interpretation of the other three ; but coming after this interpretation , this interpretation hath lost that colour , and is left upon the statutes themselves ; wherein i for my part cannot find one word that doth seem so much as to lead toward any such exposition or interpretation . the first of them is that of the rich. . . which statute hath relation unto a petition upon which the interpretation thereof ought to be grounded , according to the manner of making acts in those dayes ; which petition in other acts is inserted as a preamble to the act it self ; but in this is premised only in part , and that not truly rendred by the translation ( as shall appear when we come to treat of contracts made at land for e sea affairs ) the statute it self runneth thus . le roy voit que les admiralls & lour deputees ne sic mellent de sore ana vant de nul chose fait deins le roylme messolement de chose fait sur le meer solonc ce que ad estre duement use en temps du noble roy edward ail nostre s●r ' le roy quorust . the kings pleasure is that the admirals and their deputies shall not from henceforth so meddle ( viz. as is complained of in the petition ) of any thing done within the realm , but only of a thing done upon the sea. here sur le meer , i hope shal not be taken for super altum mare , when as the statute is so absolutely free from distinguishing any one part of the sea from the other , or limiting the admirals jurisdiction unto one part thereof , more than to another ; but leaveth all to his cognizance , solonc ce que ad estre dument use en temps du noble roy edward ail nostre sur ' le roy quorust , according to that which had been duly used in the time of edward the grandfather of the then king , which was edward the third . now do not i find , nor do i believe that either the makers of this exposition or their followers can find that the admirals jurisdiction was in any part of edward the third's time restrained to the main sea , by any such distinguishing between the main sea and the ports and havens where all sea businesses are agitated . but this i am sure of , that by the records throughout his reign the admirals were capitanei & f admiralli omnium portuum & locorum per costeram maris ( as hath already been shewed ) as well as of the main sea ; and by other more antient records ( as hath been likewise shewed ) they were as well custodes marinae & maritimorum portuum , &c. as custodes maris . and it is plain that in edward the third's time , they had plenam potestatem audiendi querelas omnium & singulorum de his quae officium admiralli tangunt ; and likewise g cognoscendi in causis maritimis , &c. in causes belonging to the sea : in causis quae oriuntur ex maritimis negotiis , without any limitation or restraint to one part or other thereof . the second statute is that of the th of r. . . which statute hath two parts : the first considereth the admirals jurisdiction exclusivè , what things he shall not have cognizance of ; and it concerneth contracts , pleas , and complaints , and other things done , arising within the bodies of counties , as well by land as by water , ( and wreck of sea ) which will come to be h treated of hereafter . the second part considereth his jurisdiction inclusivè , retaining and upholding the same within the limits thereof : and in regard the sea floweth sometimes further , and sometimes shorter upon the great rivers , leaving the extent of the admirals jurisdiction somewhat uncertain , it therefore reduceth it to a certainty , setting forth how farre it shall extend , notwithstanding it is said in the former part ( as well by land as by water ) and distinguisheth how farre the water is to be taken to be within the bodies of counties , and how farre not , which followeth in these words : nientmeyns de mort de home & de maheym faitz en grosserniefs est-zantz & hooranz en my le haut fil des grosses rivers , tant solent per a vale les pontz de mesme ; les rivers pluis proheyms & meer , & en nul autre luen de mesmes lez rivers eit la admirall conisance & auxint darest des niefs en les grant flotes pur grants voyages du roy & de roylme , &c nevertheless of the death of a man , and a maim done in great ships , being and hovering in the main stream of great rivers , only beneath those bridges of the same rivers which are neerest to the sea ▪ and in no other places of the same rivers , the admiral shall have cognizance , and also to arrest ships in great flotes for great voyages for the king and the realm , &c. here the bridges next to the sea by this statute are appointed and put for the limits to terminate each jurisdiction , the one above , and the other below ; and i cannot think that any man can conceive that the expressing of some particulars cognizable in the admirals court doth restrain his cognizance unto those particulars only : for certainly those particulars in the reading of this statute must and are emphatically exprest , and so understood , as expressing that he shall have cognizance below those bridges , even of things of the highest nature belonging unto the cognizance of any judge , even of the death and maim of a man ; yea , and shall have power to arrest great ships for the kings service , and take them out of the hands and possession of the owners or freighters of them , to what necessitous end soever designed , no wayes at all excluding his cognizance of things of a meaner and inferiour * nature , but is thereby a confirmation of his cognizance in such things , and the causes concerning them : nam si majus est , etiam minus erit : & cui majus convenit , etiam minus , is a general rule : if one be stricken on the sea , and dye on the land , the common-law cannot try this h murther . and mr. sergeant callis in his reading giveth this reason thereof , that all tryals at the common law are to be by jury , which must come out of a proper county ; which in this case cannot be , the sea being in no county . this being the reason , doubtless the ports and havens at the time of the making of this statute were not accompted to be within the bodies of counties ; for if they had , the jury might have been summoned out of that county , in whose body the port and haven lay , whereon the death and maim of a man should happen , for to have tried the same : but the ports and havens being not within the bodies of counties , so that the death and maim of a man thereon could not be tryed by a jury summoned out of a proper county , according to the course of the common law ; therefore in express terms was the triall thereof appointed unto the admiral , who even in such cases then proceeded according to the rules of the civil law , by which no jury was required , but so much the more exact proof . the same reason then , which is the reason that such an act done at sea could not be triable by the law of the land , must be the reason why the like act done upon any port or haven should be triable by the civil law , and not by that law. but i shall proceed further to make it more plain , that this statute neither did , nor doth limit the admiral to the cognizance of those particulars only which are mentioned therein to be done or happen below the first bridges upon the ports and havens . all causes both criminal and civil , which have arisen from things done or happening upon ports and havens , as before , so ever since the making of this statute ( excepting the interruption made by this judgement , and some others which have hence sprang ) have been triable and tried by , and before the admirals , their lieutenants and judges of the admiralty court , according to the rules and grounds of the civil and maritime laws , as will hereafter i plainly appear , untill the th year of henry the eigthth , in which year a statute was made which affirmeth this very assertion , quoad criminalia in these words . vvhere traytors , pirats , theeves , robbers , murderers , and confederates upon the sea , many times escaped unpunished , because the tryall of their offences heretofore hath been ordered , judged , and determined before the admiral , or his lieutenant , or commissary , after the course of the civil law , the nature whereof is , that before any iudgement of death can be given against the offenders , either they must plainly confess their offences ( which they will never do without torture or pains ) or else their offences to be so plainly and directly proved by witnesses indifferent , such as saw their offences committed , which cannot be gotten but by chance at few times , because such offenders commit their offences upon the sea , and many times murder and kill such persons , being in the ship or boat where they commit their offencs , which should witness against them in that behalf and also such as should bear witness be commonly mariners , and shipmen , which because of their often voyages and passages on the seas , depart without long tarrying and protraction of time , to the great cost and charges as well of the kings highness , as such as would pursue such offenders . for reformation whereof be it enacted by the authority of this present parliament , that all treasons , felonies , robberies , murders and confederacies hereafter to be committed in or upon the sea , or in any other haven , river , creek , or place where the admiral or admirals have or pretend to have power , authority or jurisdiction , shall be enquired , tryed , heard , determined and adjudged in such shires and places in the realm , as shall be limited by the kings commission or commissions to be directed for the same in the like forme , and condition , as if any such offence or offences had been committed or done in or upon the land , and such commissions shall be had under the kings great seal directed to the admiral or admirals , or to his or their lieutenant , deputy , or deputies ; and to three or four such other substantial persons as shall be named and appointed by the lord chancellor of england for the time being , from time to time , and as oft as need shall require , to hear and determine such offences after the common course of the laws of this land used for treasons , felonies , robberies , murders , and confederacies of the same done and committed upon the land within this realm . this statute plainly sheweth , that before the making thereof , the offences of all traitors , pirats , theeves , robbers and their confederates , done , or committed upon the sea , without distinguishing the main sea from the ports , creeks , and havens thereof , or excluding them therefrom , as well as the offences of murderers and meighmers of men were ordered , judged , and determined before the admiral , his lieutenant or commissary : nay , by the reason given in this statute for the alteration * of this triall , the ports and havens do appear to be comprehended in the word sea , where it is said that many times the offenders do murder and kill such persons , and the witnesses being in the ship or boat , where they commit their offences , which should witness against them in that behalf . now surely all the said offences which were done or committed in ships or boats , and were cognizable before the admiral or his lieutenant or commissary , might be , and were committed as well in ships and boats , which did ride or lie at anchor within the havens , creeks , and ports of the sea , as upon the high sea. yet if this be doubted , what followeth in the act will make it more plain , viz. that all treasons , felonies , robberies , murders , and confederacies hereafter to be committed in or upon the sea , or in any other haven , river , creek , or place where the admirals have , or pretend to have power , authority or jurisdiction , shall be enquired , tryed , &c. so that we see here the same criminal offences acknowedged to have heretofore been tryable by the civil law , and that it is now enacted , that hereafter the same offences committed upon the sea , may be otherwise enquired , tryed , &c. and least any doubt should arise , how farre the sea heretofore extended , therefore it is added , or any other haven , river , or place , where the admiral or admirals have or pretend to have power , authority , or jurisdiction . again , had these havens , rivers , and creeks ever been within the bodies of counties , so that a jury might have been had out of a proper county for the tryall of these offences thereon committed , then needed not this statute have appointed any such tryall thereof by jury , to be chosen out of any county limited by the kings commission proper or not proper . nor assuredly would this stature have given the cognizance of these offences committed within the bodies of counties to the lord admiral and his deputies . now if these havens , rivers , and creeks were so farre out of the bodies of counties , that a jury could not , nor yet can be had out of a proper county , but must be had out of any county by the king , in chancery appointed , for the tryal of these criminal causes , arising from these offences thereon committe , i conceive it will seem strange that it should be affirmed that the same havens , rivers , and creeks should be so farre within the bodies of counties , that a jury might , or may be had out of a proper county , for the tryal of such civil causes as might or may arise from civil matters thereon had or done ; so that i cannot by the uttermost of my endeavour find out the foundation either of law or reason , whereon this judgement was built . sir edward coke not seldome termeth it a maxime in the common law , quòd nemo debet videri prudentior lege , that no man ought to seem wiser then the law : and truly from this maxime ( as he termeth it ) i conceive , as strong a conclusion may be drawn , viz. quod hisce statutis nulli prudentiores videri deberent , none ought to have seemed wiser then these statutes themselves . but indeed as this judgement hath been by some accepted as grounded upon law , so hath it been by more , and those learned in the law , refused and rejected as not grounded thereon , as i shall hereafter shew , by writs de procedendo , awarded out of the chancery upon injunctions thence granted , and consultations both out of the kings bench and common-pleas , upon prohibitions thence granted upon causes of the self same nature . now i hope by what hath been said , & shall hereafter be shewed , it plainly will appear , that this first and leading judgement was not so grounded either upon law or reason , or upon so sound a foundation , as that men in succeeding ages should build their judgements thereupon , nor so complete or fit a guide or rule , as that lawgivers should be directed thereby ( although it had been contemporanea statutorum expositio , made within years of the making of one of the said statutes , and that upon two years advisement and deliberation , as sir edward coke affirmeth ) which induction , or minor proposition , is as infirme as the major , and both will leave the conclusion to stand alone without legs , which must necessarily fall to the ground . first then , that this was contemporanea expositio , made within the space of twenty years next after the making of one of these statutes , will not be made good ; for the last of those statutes is that of h. . cap. . which was anno , and the judgement was given the h. . hil. which was anno ; and how this can be brought within the compass of twenty years , which appears so plainly to be seven years without the ●ompass , i know not . besides , this statute is only in confirmation of that statute ric. . . setting a penalty of double damage unto the party grieved , and ten pounds to the king upon him that shall offend against this statute of the th of richard the second . now it is true this judgement doth pursue this statute in giving double damages to the plaintiffe , and the penalty of ten pounds to the king against the defendant : but the giving of these double damages and penalty is grounded upon the breach of the former statute , unto which only this hath relation ; and this statute neither needed , nor had it any exposition at all : but the judgement was grounded upon an exposition made of the former statute ric. . upon which ( if the statute would have born any such construction ) the party suing in the admiralty contrary to that statute in a cause of the same nature , would have before the making of the statute of the d of h. . been liable to the single damages , though not to the double ; but the law whereon this exposition was made to ground this judgment , ought to have been some law that declareth a haven to be within the body of a county , and without the jurisdiction of the admiralty , and must needs have been before the making of this statute , if there had been any such at all , which i believe can never be found or shewed : for sure i am ( as i said before ) there is not one word in the statute it self , which can so much as seem to draw any man to imagine that a haven or port should be within the body of a county ; but however it is the exposition of this statute ( though groundless ) upon which the judgment is founded , and this statute was made eleven years before the other ; and then will this contemporanea expositio , said to be within twenty years , scarce fall to be within twice twenty years : for the statute made in the th year of richard the second was made in anno , and the judgment was given in anno which is full years ; and ought not to have had an exposition put upon it , clean destructive to another statute made within two years after , and in the same kings raign , which cleareth the admirals jurisdiction to be over the havens and rivers beneath the first bridges nearest to the sea , even of the death of a man &c. which is magis contemporanea et multo stabilior expositio , being made upon as good advisement as this , though perhaps not upon terms of deliberation , which consideration i come to consider next : and i cannot conceive the advisement upon two years deliberation upon one particular point , should render the determination thereof ever the more sound , but rather sheweth a great deal of doubting and fearfulness to determine . but it seems after two years deliberation they determined to have the ports and havens ( without any warrant of law that sir edward coke hath declared , or that i can by any means find ) to be within the bodies of counties . and truly i think the time was short enough , and their pains great enough in that space , to turn so much sea , or water appertaining unto the sea , into land , or into the heart of a county : but if the foundation of this judgement be infirme , surely it will not support it , being so weighty a judgement as it is , but that the same must fall to the ground , and be buried in the earth , or drowned in the depth of that sea , it would have dismembred of its ports , creeks and havens , unless whatsoever a court shall once adjudge through misapprehension , or any manner of misunderstanding , must ever after be observed for law ; which whosoever affirmeth , must maintain some men to be infallible , or else that one injustice may be a warrant for another : but if to persist in an error , be another , and a greater error , then surely to square justice by so crooked and untryed a rule , can produce no strait or upright future judgement . i must confess the judgements of such grave and learned men , in such a place and authority , ought much to sway with their successors in doubtful cases , and one judgement ought as little as may be to thwart and cross another , but not unless the same be agreeable unto justice , equity , right , reason , and binding laws , constituted , appointed and published by superiour powers , which are alwayes to be observed . chap. vi. that from the two other actions instanced in , to be brought against the parties suing in the admiralty court for a business done upon the ports , no concluded argument is deduced . two actions likewise are instanced in , instituted in the court of the common-pleas to the same purpose , which can be deduced from no better reason , nor founded upon any sounder ground then this first judgement was , more then that they had this for their example . ( at exempla mala sunt reprobanda , & non a sequenda ) both of them pasch . h. . the one is an action brought by robert cupper upon the before mentioned statutes in the court of common-pleas , against john raymer of norwich ; for that the said raymer did sue the said cupper in the court of admiralty , for that he said raymer having a ship in portu aquae jernemuthae infra corpus com . norf. ready for a voyage to zeland , the said cupper entred the said ship lying in the said haven , and took away divers goods out of the same , asserendo per praedictum placitum res illas super altum mare emersisse , acsi res illae super altum mare emersissent , cum non ibi sed apud jernmutham contra formam statutorum praedict . the other was an action between john wydewell , and the said john raymer the same terme , in the same court : but whether there were any judgement upon these two actions , or not , or what the judgements were , is not set forth : the judgements might be given for the defendants , as well as against them for ought appears out of what sir ed. coke hath set down ; and since he hath spared the pains to set them down , i shall spare my labour for looking them out : if any judgement were given upon either , which i the rather conce●● there were not ; for that if there had been any , sir edward coke would not have spared to have told of them , if they had been for his purpose . if the judgements were given agreeable to the former judgement , and passed by that example , yet is there no better ground for the same , made to appear for founding them upon , then for the former , which is but a quakemire . chap. vii . the argument deduced from two praemunires instanced in to be brought against the parties suing in the admiralty for things done upon ports , redargued . but to keep some method , i must out of these things which sir edward coke hath promiscuously urged against the admirals cognizance of businesses done upon the ports and havens , and of contracts made upon the land for freight , mariners wages , tackle , furniture , and ammunition ; and of things done beyond the seas , &c. in the next place pick and gather the rest of those things which only concern his cognizance of businesses done upon the ports and havens , and give some answer to them first ; and those are praemunire's , prohibitions , book-cases , and authorities in law : and then come in the third book of this treatise , to those things which he hath urged against the admirals cognizance of or concerning contracts made upon the land for freight , mariners wages , &c. two praemunire's he instanceth in , the one brought mich. . h. . by john cassy esquire against richard beuchampe , thomas paunce esquires , and others , upon the statute of rich. . cap. . for sueing in curiâ romanâ vel alibi of matters belonging to the common law , for that the defendants did sue the plaintiffe in the admiralty court before henry duke of excester , that the said john cassy did take and carry away certain jewels super altum mare , ubi idem johannes cassy bona illa apud stratford bow infra corpus comitatûs middlesexiae , & non super altum mare cepit , which ( saith he ) is so evident , and of so dangerous consequence , as no application shall be made thereof ; but i must ( under favour ) take leave to make some application , and some answer likewise hereunto , and shew that the urging ●oth of this , and the other which he instanceth in , which is a premunire brought h. . for a suit in the admiralty court before john earl of oxford , for taking and carrying away quandam naviculam apud horton key at south-lyn , &c. supposing the same to be super altum mare , where it was infra corpus comitatûs , is no way consequent or concludent to prove the ports and havens to be within the bodies of counties . for the first of these , it is plainly affirmed that john cassy did take away the goods he was sued for in the admiralty court at stratford bow , being a town or parish plainly within the body of the county of middlesex , and no haven or haven-town . this suggestion being proved , the admiral had no colour at all to take cognizance of this cause . for the taking and carrying away of the little ship , little barque or boat ( for navicula signifieth either of the three ) at horton key at south-lynne , it concludeth nothing against the admirals jurisdiction upon the haven or port , taken for the water beneath the first bridge : for a key is often taken for the wharfe , or place whereon goods are usually landed ; but strictly it is taken for the very separation of the land from the water , by wood or stone , or both in such places as goods are usually landed at : and these are the keys that lock those dores that sir edward coke would have stand wide open , placed by god himself to no purpose so farre within the seas . now at horton key may be as well on the dry side of the key , as on the wet ; as well upon the land as upon the water : and little ships , little barques , or boats are oftentimes drawn up at the keys , where they arrive , to be caulked and repaired , and might be from thence taken and carried away perhaps from the water ( their accustomed element ) to the fire , wherewith for the most part , when they escape drowning , they are at last consumed , when they are become unserviceable . again , these two premunire's are said only to have been brought , and nothing said of the event , or what was determined thereon ; so that here is nothing but the opinion of those that brought them , and no resolution of the judges ; and so these two praemunire's conclude nothing at all . but grant two suppositions ( neither to be granted nor supposed , unless proved ) viz. that these two severals acts were done or committed upon ports and havens , and that the determination and resolution of the judges was against the defendants ; yet he that will but look , may see the two foundations whereon these determinations or resolutions were or should have been built , from whence this land argument is raised , to have been laid upon the sea sands , too slippery a place for them to stand on ; the one is that before mentioned groundless supposition of the ports and havens being within the bodies of counties ; for which no proof is offered ; but that some against all reason , and they know not wherefore , have taken them so to be . the other is the statute upon which these praemunire's were brought , which he affirmeth to be the statute rich. . for suing in curiâ romanâ vel alibi , of matters belonging to the common law. this statute consisteth of a petition made by the commons unto the king , and the king's answer thereunto , as all ancient statutes of those dayes do . in the petition is first set forth that the king and all his liege people ought of right , and of old time were wont to sue in the kings court to recover their presentments to churches , prebends , and other benefices of holy church , to which they had right to present , &c. and when judgement was given in the same court upon such a plea and presentment , the archbishops , bishops , and other spiritual persons , which had the institutions unto such benefices within their jurisdiction , were bound and did make execution of such judgements by the kings commandments , of all the time aforesaid without interuption , &c. and in the next place they do complain , that of late divers processes had then been made by the bishop of rome , and censures of excommunication upon certain bishops of england , because they had made execution of such commandments to the open desherison of the crown , &c. and further complaining that also it was said , and a common clamour was made , that the said bishops of rome had then ordained and purposed to translate some prelates of the same realm , some out of the realm without the kings assent and knowledge , and some out of one bishoprick into another , within the same realme , without the kings assent and knowledge , and without the assent of the prelates so to be translated , which prelates were much profitable and necessary to the king and his realme ; by which the statutes of the realm would become defeated , &c. and nothing more is contained in the said petition , but what concerneth the premisses . the king in his answer doth ordain , that if any purchase or pursue , or cause to be purchased or pursued in the court of rome , or elswhere , any such translations , processes , and sentences of excommunication , bulls , instruments , or any other thing whatsoever , which touch the king , against him , his crown and regality , or his realm , as is aforesaid : and they which bring within the realm , or them receive , or make thereof notification , or any other execution whatsoever , within the same realm or without , that they , their notary , procurators , maintainers , abetters , fautors , and counsellors , shall be put out of the kings protection , and their lands and tenements , goods and chattels forfeited to our lord the king , that they may be attached by their bodies , &c. in these antient statutes , which are by way of petition and answer , the answer hath alwayes relation to the petition , and granteth what is therein desired ; sometimes less , but never more : by this petition nothing is desired but the restraint of the popes power , and assumed authority in those things therein exprest ; nor is there any thing more in the answer granted , if these words in the genuine sence thereof be duly examined , which can be no other then this . if any purchase , &c. in the court of rome , or elswhere from the pope , or any power or authority derived from him , viz. either in his court at avignon , which he sometimes held there , or any other ecclesiasticall court under his supremacy , whether beyond the seas , or in the realm of england : ( for we well know that in those dayes the pope did challenge a power over the ecclesiastical courts here as subjected unto him , as their supreme only , or at least as well as the king ) and of these courts and none other can this [ elsewhere ] be understood , as will plainly also appear , by the things specified in this answer , to be purchased and pursued , viz. if any purchase or pursue in the court of rome , or elsewhere , any such translations , processes , and sentences of excommunications , bulls , &c. now cannot these things , nor could they elsewhere , or in any other place besides the court of rome , be purchased or pursued , but from the pope or his authority in those other courts before mentioned . again , these words [ else where ] were necessarily inserted , and necessarily to be understood of those courts under the popes authority , from whom and whose authority those things were to be purchased and pursued 〈◊〉 otherwise , whosoever had purchased any of them elsewhere , to wit in any of these other courts , under his authority , and not in the court of rome , had not been by this statute lyable to the punishment thereof . but some perhaps may say , i have here purposely waved the general words , which close up the particular specified things forbidden to be purchased , or pursued , viz. bulls , instruments , o● any other things whatsoever , which words perhaps may seem to have relation to [ else where ] and be thought to be of so large an extent , that the words [ else where ] must be stretched to all places whatsoever , beyond other courts of the popes , or under his authority : but indeed i intended it not . but as they are the last words , which close up the particulars specified , so i reserved them to the last place , wherein i shall disclose and clear that doubt . when several particulars then of the same nature are closed up with a general , that general comprehendeth all other particulars of that nature , and nothing of a different and distinct quality . so here these general words [ or any other things whatsoever ] must be understood of any other thing whatsoever of the same nature with those translations , processes , &c. and this is plain enough by the words themselves , if seriously observed , and rightly understood . for take them as they run , and they carry their limitation with them , which bindeth them close , and restraineth them unto what precedeth in the petition . and as the court of rome and elsewhere , have relation to the pope , to the popes court at rome , and unto his courts elsewhere , so must these words [ instruments , and other things whatsoever ] have reference and relation thereunto . and then take these words , as they answer the petition , and they can bear no other sense then this , viz. whereupon our lord the king by the assent aforesaid , and at the request of the said commons , hath ordained and established , that if any purchase or pursue , or cause to be purchased or pursued in the popes court of rome , or any other of his courts elsewhere , any such translations , processes , and sentences of excommunications , bulls , instruments , or any other things whatsoever , which touch the kings protection , &c. so that upon the matter sir edward coke here doth but tell us how these parties were accused , against whom these praemunires were brought ; for certainly this statute in a right construction could not be applyed against them for suing in the admiralty court. and his instancing herein plainly carraigneth the judgement which he before used for an argument against the admirals jurisdiction upon ports and havens , and indeed may sufficiently serve to shew how groundlesly a word in a statute may be , and hath been wrested and catcht at , to diminish and straighten the jurisdiction of the admiralty , and enlarge the already extraordinary large power of the common law. nor are these interpretations or constructions in any wise contemporary with the statutes ( as sir edward coke would have them ) but taken up a long time after , and crept into their law , as heresies do into religion , by new constructions of scripture : neither indeed can either the judgement , or any of these praemunires instanced in be said to be contemporary with the said statutes . for further proof of this point , he instanceth in four or five prohibitions unto the court of admiralty , for holding plea of contracts made upon ports or havens , and beyond the seas . but to these i shall give an answer hereafter , when the contracts made at land concerning maritime affairs shall come to be insisted upon . chap. viii . the book-cases and authorities brought to proove , that the admiral hath no jurisdiction upon the ports , creeks , and havens , answered . certain book●cases and authorities ( as sir edward coke calleth them ) are likewise urged for proof of this particular , of the admirals having no jurisdiction upon the ports and havens . . some books are quoted , a nothing being exprest what the books say , nor any argument deduced out of them to conclude the point : i cannot therefore give an answer to an argument unframed , nor is it proper for me , my self to raise an argument out of those books , and then my self to frame an answer thereunto . but i will conceive those authorities he hath quoted at large , to make most for his purpose , and endeavour to answer unto them . he saith in tempore ed. . tit . avowry . b a replevin was brought for the taking of a ship in the coast of scarborow in the sea , and for carrying the same from thence , into the county of n. mutford the plaintiffe counteth of a taking on the coast of scarborough , which is neither town nor place out of which a jury may be taken , for that the coast is four miles long . and also of a thing done in the sea this court hath no cognizace , for certain judgement thereof is given for the mariners . berry chief justice of the common-pleas ; the king willeth that the peace be as well kept on the sea as on the land ; and we find that you are come hither by due-process ; and therefore ruled him to answer . out of which the author observeth four things . . that it is called the sea , which is not within any county , from whence a jury may come . . that the sea ( being not within any county ) is not within the jurisdiction of the court of common-pleas , but belongs to the admirals jurisdiction . . that when the ship came within the river , then it is confessed to be within the county of northumberland . . that when a taking is partly on the sea , and partly in a river , the common law shall have jurisdiction . for the first observation , which is , that that is called sea which is not in any county from whence a jury may come ; i may very well grant it , and he yet never the nearer the proof of that he aimeth at , viz. that a port or haven is within any county out of which a jury may come , which is absolutely denied ; the reason whereof , as c before , so shall be hereafter shewed . for his second observation , that the sea not being in any county , is not within the jurisdiction of the court of common-pleas , shall not be denyed him : but i must crave leave to observe with him , that notwithstanding this ship was taken upon the seas , where there was neither town nor place from whence a jury could be taken ; yet berry the chief justice took cognizance of this cause , and caused mutford to answer : and this might have served him for as good an argument to have proved the seas to be within the jurisdiction of the common law , as any that he hath used to prove the ports and havens to be within the bodies of counties , and out of the jurisdiction of the admiralty . for his third observation , which is , that when the ship came within the river , it is confest to be within the county of northumberland : i conceive , if mutford might at the common law have pleaded two pleas , which in many cases is necessary , and allowable by the civil law , he would as well have denyed , that ever he carried the ship into the county of northumberland , as he did averre that he took her upon the seas : and silence is not a consent , or confession , where a man is tyed to one plea ; and hath divers to plead : this therefore is neither confessed by mutford , or any else , but by the author himself , and such as are of his party : for berry neither affirmeth nor determineth any such thing , or causeth him to answer upon any such ground , but upon this ground , that the king willeth the peace to be kept as well on the sea as on the land : and indeed the grounds are both kept alike to sound the cognizance of this cause in the court of common-pleas , whereas the king , that willeth the peace to be kept as well on the seas as on the land , hath provided , instituted and appointed from antient , and farre past times , distinct judges , justices and officers for the keeping thereof on the one hand , and on the other : the admiral , his deputies , and other justices with him appointed for the keeping thereof upon the seas ; and the judges of the land , and other justices with them appointed for the keeping thereof upon the land ; and neither have to do with the others jurisdictions : so that i cannot conceive , nor can i grant chief justice berrys ground , whereon he founded this replevin , and the taking this cause into cognizance to be terra firma . and as for that which sir edward coke would have to be the ground of this replevin , and cognition of this cause , namely because , after she was taken at sea , she was carried into a port or haven , which he accounteth to be within the body of a county : if this should be allowed for a good ground , then must all reprizals taken at sea by letters of marque , and brought into the port and haven , be exempted from their condemnation in the admiralty court for lawfull prize , and may be set free by a replevin granted from the common law ; and whatsoever fact done upon the seas , either by ship or man , the ship or man repairing to port or haven , justice must be had against them from the common law : so that by this construction , the admiral shall have no cognizance of piracy , robberies , &c. committed at sea , either by the course of the civil law , or by the course of the law of the land upon the before mentioned statute of hen. . but if the pyrats , or robbers , &c. shall escape , and bring that which they have stoln , or by violence taken away , &c. into any port , or haven or to land , this pyracy , robbery , &c. shall be tryed at the common law. and as well may it be said that if they shall be taken upon the sea , and afterwards be brought into any port , or haven , or to land , that then the admirals jurisdiction ceaseth , and the tryal belongs to the common law : so that the admiral must go set up his tribunal upon the high seas ( as sir ed. coke distinguisheth them ) if he will have any jurisdiction at all . and whatsoever injury shall happen to be done at sea by one ship unto another , the ship which did the injury , by repairing to her port or haven , shall free her self from the judgment of the admiralty court , &c. and the common law shall free the judge of the admiralty , and all the officers belonging to that court from any further attendance there , which doubtless was the aim of the author , as will plainly appear , when i shall come to sum up all he would have : and i wish it be not the aim of a great many still , whose aim for their own ends must necessarily be destructive to a general good , as shall be likewise hereafter shewn . for the fourth observation , which is that when a taking is partly on the sea , and partly in a river , the common law shall have the jurisdiction . for this partly taking on the sea , and partly on the river , i must confess i know not how it can be : for a ship is either taken or not taken , when she is taken at sea ; or taken or not taken , when she is taken upon the river , unless we can say that one part of the ship was upon the sea , and the other part of her upon the river , at the very instant time of her taking . but if the jurisdiction of the admiralty may have its right , we shall have no need of a mathematitian to strike a line between the sea and the river , to make the distinction , for indeed this distinction will be altogether needless . but this observation having relation to the matter of fact from whence it is drawn , this meaning of taking partly on the sea , and partly on the river , must be that a ship is so taken , when she is first taken at sea , and then brought into some port or harbour , which i shall leave to the judgement of the world , whether this ship was taken on the sea , or on the river , or can be said to be taken partly on the sea , and partly on the river . and if this shall be determined to be a taking partly upon the sea , and partly upon the river ; and that therefore the common law shall take cognizance thereof ; i must say ( as i said before ) the common law hereby shall take the whole jurisdiction of the admiral to it self . for what ship can be taken at sea , or to what end shall any ship be taken at sea , if she shall not be brought into some port or haven , that she and her goods may be there disposed of ? and indeed all ships that be there taken by letters of marque , must be brought into port or haven before they break bulk : and the common law shall hereby cast off all rules , and laws of the sea , whereby causes of that nature have been always ( such interruptions excepted ) discussed , tryed , and determined between us and foraign nations , and between our own merchants , and sea-faring men , and try , and determine them without either rule or law : for i could never yet find that the common law ever afforded either books , or presidents to guide or direct them in the adjudging , and determining of causes of that nature , which is a thing most requisite and necessary , the forraigner ( between whom and us such cases for the most part happen ) expecting to have his ship and goods confiscated and condemned , or quit , and restored upon the same terms , and according to the same proceedings , rules and laws , as ours are in foraign parts , which the common law affordeth not , being onely a municipal law for the guiding and governing of the subjects of this nation in their land affairs at home . again i would gladly know how this observation agreeth with lacies case , ; where one was stricken on the seas , and dyed on the land , the common law could not try this murther ; and serjeant callis in his reading at grays-inn , an. . in prima lectura p. . d giveth this reason thereof , because that tryal was to be by a jury which must come out of a proper county , which could not in this case , because the sea was not within any county . in this case the party received a mortal wound at sea , and was brought unto land and there dyed ; in the other case , the ship was taken at sea , but brought into a haven , and there unladen ; here the party may more properly be said to be partly killed at sea , and partly killed at land , then the ship can be said to be partly taken at sea , and partly taken at land , and yet the land shall not find a jury for tryal of one , but the sea port shall find a jury for the tryall of the other , which i shall leave to be observed upon this his fourth observation , how farre the same will hold water . next he urgeth that ed. . tit . coron . . it is no part of the sea where one may see what is done on one part of the water , and of the other ; as to see from one land to another : and that the coroner shall exercise his office in this case , and that of this the country may have knowledge , whereby it appears ( saith he ) that things done there are tryable by the country ( that is is to say by jury ) and consequently not by the admiralty court. and after in another place of the same chapter he urgeth stamford l. . part . coron . fol. . . e to this very purpose : the reducing which together can be no wrong to his argument , but rather a strengthening ; for vis unita fortior , and so undertake the answering of both together . and this is that ( which he saith ) stamford saith : if one be slain upon an arme of the sea , where a man may see the land of one part and of the other , the coroner shall enquire of this , and not the admiral , because the country may take cognizance , and doth vouch the said authority of ed. . whereupon he concludeth in these words : so this proveth that by the common law before the statute of . h. . the admiral had no jurisdiction but upon the high sea ; which only authority ( saith sir edward coke ) is sufficient to over-rule all the said questions ; for ( saith he ) hereby it appeareth , that the jurisdiction of the admiral is only confined by the common law to the high sea , and agreeth with all the book-cases and acts of parliament . for the first ed. . which saith that it is no part of the sea where one may see what is done on one part of the water , and on the other ; that is indeed to be on the one side of the river , and see & discern what is done on the other ; and that must be so to see and discern , that he may perfectly judge of the action , yea , and certainly of the party acting too , else can this seeing be to no purpose . and hereby it may appear that the admiral had in those times jurisdiction upon all ebbing and flowing rivers , so farre as they continued of such breadth , that one standing on the one side of the river could not see nor discern what was done , and by whom on the other side : so that his jurisdiction in some places extendeth farre above the first bridges ; for what man is so quick-sighted , that standing on the one side of the thames , above the bridge , can so discern as to judge of the actions of men on the other ; and who , and what manner of men they are ? for to see , and not so exactly and judiciously discern in the adjudging of such actions , is as much as not to have seen at all . but this being too ambiguous and uncertain a distinction between the sea jurisdiction , and the land , by reason of the different breadths in one and the same river , and the different apprehension of things by several mens eyes , and difference of the aire at several times , being sometimes thick and cloudy , sometimes serene and clear : the next bridges unto the seas have been alwayes held the most certain distinction between them . but indeed this record is stretcht further , and indeed so farre that it is impossible it should hold ; for by sir edward coke it is thus set down : it is no part of the sea where one may see what is done on one part of the water , and of the other ( as to see from one land to the other ) as if there was no difference between seeing what is done on the one part , and the other , and seeing from one land to the other . here to make sure work with the ports and havens , and to bring them within the compass of the coroners office , he will bring the main sea , his altum mare , likewise within the compass thereof : for he that will make that to be no part of the sea where one may see from one land to the other , must needs make france and england to be one continent , which i see he spareth not to do , against the opinion of the world ; for sure i am a man may see from dover to callis , and yet all men have accounted callis beyond the seas , from dover , and dover beyond the seas from callis ; and yet for all this , if it were possible with modesty to grant him so much , yet can i not grant that , because the coroner might exercise his office in this case , therefore the admiral cannot exercise his ; for it is but argumentum ex contingenti , non ex necessario . now for that which he hath out of stamford f to the same purpose , but useth in another place of the same chapter to make his arguments seem the more in number . stamford is not so confident of the truth of this assertion , as he is , and puts it not as his opinion agreeing with the record , but by way of a quaere , seeking only what may be inferred from that record . he in that place sets down the diversity of opinions of their books , concerning the extent of the coroners office ; and saith that nedham saith , que coroner ne poit inquirer das cun felony fo rs que de mort d' homme : that the coroner cannot enquire of any felony but of the death of a man , and yet he saith que in northumberland g ils inquir oient de touts felonies mes cel authoritie ils maintenont per praescription , &c. that in northumberland they enquire of all felonies , but this authority they maintain by prescription ; and he saith that tit . coron . in fitz. h. p. . present fuist devant le coroner que un tiel prise pur felony conduct fuit ad esglise per certem freres & adjudge vois presentment eo que il ne parent inquirer de ceo , h ratione officii , &c. it was presented before the coroner , that such a one taken for felony was conveyed to the church of certain fryers , and it was adjudged a void presentment , because he could not enquire thereof by virtue of his office , &c. then he quoteth britton i fol. . on the contrary , who saith que il parent inquirer de rape de femme & de debruser de prison quex sont autor felonies que nest mort d' homme , &c. that he may enquire of the ravishment of a woman , and of breaking of prison , which are other felonies , which are not of the death of a man. then followeth that which is here urged after this uncertainty of the coroners power , thus set down : ideo quaere , &c. si un soit occise on rees in les bracher on sauses del meere lon homme pent veier terre ' d un part & d' autor , le coron . inquira de ceo & nemy admirall eo qui le pais rent been de ceo aver conusance ; quod vide titulo praedicto k p. . issint ceo prova que per comon ley devant le statut an. h. . c. . l' admirall naver jurisdiction se non sur le haut meere , wherein he mis-quoteth the said statute , and doth not rightly urge the words thereof , there being no such word as haut either in that statute , or in the statute of rich. . of which the latter is only a confirmation with a penalty , the words being only sur le meere , and not sur le haut meere ; and from this mis-cyting he raiseth a doubt , which otherwise would have been none , ideo quaere , therefore seek or be advised , whether or not , if one be slain upon any arme of the sea , where a man may see the land on one part and on the other , the coroner shall enquire thereof , and not the admiral ; because , or for that the country may take cognizance of it , which ( saith he ) see in the said title p. . so ( saith sir edward coke ) this that is deduced and drawn from this authority , doth prove that by the common law , before this statute of h. . c. . the admiral had no jurisdiction but upon the high sea , whereas stamfords quaere resteth still upon this point ; and he declareth not his own opinion therein , but leaveth this as doubtful still , as he did the extent of the coroners office concerning felonies before , which he might very well do , this being raised upon so mistaken a ground , which if it had been rightly cited , he might have easily determined against mr. coro●● ▪ and have left no doubt behind him . now we may see plainly by what sir edward coke saith in the first place , where he voucheth this record , that the record ( as i said before ) is very far stretcht , and part which is from thence deduced and drawn very far fetcht , to make seeing what is done on one part of the water , and of the other , to be seeing from one land to the other ; this by no logical rule can be allowed ; the other may , that is , a seeing from land to land , with the limitation before mentioned , viz. to so to see as perfectly to discern what is done on the other part of the water . take this seeing then with that limitation , without which it is as good as no seeing ( for a man to see , and not discern what he seeth to guide and direct his judgement , helpeth that man nothing in his knowledge of what he is about to judge by his seeing ) as i have said before . for doubtless the foundation of this opinion , if it can be founded upon any reason ( which all opinions are pretended to be ) must be that the witnesses being on land on one side of the river may before the coroner give their testimonies to the jury of and concerning a fact , which they saw and discerned to be done , and how and in what manner the same was done on the other side , and so ex consequenti of a fact done , and how and in what manner the same was done upon the same river , in what part thereof soever , even in the extream part thereof towards the other side to the very bank ; for that a quarrel , &c. might , or may be begun on one side , or in the midst , or on any other part thereof , and be determined by the death of one or more , on the extream part thereof , toward the other side , that there may be some colour to fetch a fact done upon such a river within mr. coroners cognizance , and the rather because the witnesses upon the shore might happily be land-men , which by his authority might be called to give their testimony in such a case : whereas in case the like fact should happen to be committed in a ship , or other vessel upon the port or haven , where the witnesses present at such fact , and might see and discern the same , for the most part were sea-men , which had recourse usually to other ships and vessels , as well as the same where the fact was done , and committed , and were and might be without the reach of his power and authority , or any other , except the admirals , who ( if they were in any ship or vessel at an anchor , either on the sea , or on the haven or port ) by his authority might call them , and have their testimony ; or if gone in any voyage to any forain parts , might by commssion have them examined sub mutuo vicissitudinis obtentu , and receive their testimony . now this seeing being rightly thus understood , the lord high admiral of england will not so soon , nor so easily be thrust out of his jurisdiction upon the ports , and havens of the sea , by the coroner of a county , or by the common law eitheir , as sir edward coke by that which is deduced and drawn from this authority , would have him . yet ( saith sir edward coke ) this onely authority is sufficient to over-rule all the said questions : for ( saith he ) hereby it appeareth that the jurisdiction of the admiral is onely confined by the common law to the high sea , and affirmeth that it agreeth with all his former book-cases , and acts of parliament : for the book-cases , i cannot deny , but that they are much alike , but all of them together not sufficient to make a sufficient proof , for that which he would have , and against that which is denied him . for its agreeing with the acts of parliament , i wonder he should averre it , seeing this very point , even in this particular concerning the death of a man upon the ports , and havens , is so clean contrary to what the statute of of rich. . c. . l in express words saith ; de mort de homme & de maheym fitz en grosses niefs esteantz ethoverantz en my le haut fil de grosses rivers , tant solement peravale lez pontz de mesme les rivers , pluis procheyns al meer et en null autre lieu de mesme les rivers est l'admiral cognissance ; of the death of a man , and of main done in great ships , being and hovering in the main stream of great rivers , only beneath the bridges of the same rivers nigh to the sea , and in no other places of the same rivers , the admiral shall have cognizance , which is a thing needed not , nor would have been provided for by this statute , if a jury could have been had out of a proper county for the tryal thereof , which is a thing requisite by the common law , as in lacyes case m twice already cited upon other occasions ; and as by serjeant callis his reading likewise in the same places . so then for this particular concerning the death of a man upon a port or haven ( which is the foundation of this argument , that the admiral should have no jurisdiction upon the ports and havens ) it resteth onely in question whether the statute shall over-rule sir edward coke , or sir edward coke the statute , and ancient law and practice of the admiralty . this next thing he urgeth against the admirals having jurisdiction upon the ports and havens , is the . ed. . n which ( saith he ) the lord dyer o voucheth in mich. . and . eliz. ( saying quod vidi ) the case is that the abbot of ramsey was seised of the mannor of brancaster in norfolk , bordering upon the sea , but more especially upon . acres of marsh of the said manor , upon which the sea did flow and reflow , and yet it was adjudged parcel of the abbots manor , and by consequence within the body of the county unto the low-water mark . this argument cannot so much as seem to carry him so farre as he would have gone before ; for hereby he pretendeth the body of the county to reach only unto the low-water mark , and that only by consequence , which consequence will not hold ; for as p serjeant callis in his grays-inne reading saith , p. . in sir henry constables case , the citizens of bristol claimed flotzon ( goods floating on the sea ) by custome , and in q bracton cap. . one alleaged to be discharged of toll or custome on the seas by praescription ; in the case of the swans , in r sir edward cokes th report , one prescribed to have a game of wild swans at abbots-beery in a creek of the sea , which is a member or arme thereof . and in sir henry constables case it is taken and received for law , that a subjects manor may extend to the low-water mark by praescription ; yet is not the admirals jurisdiction at all hereby taken away upon the same places : for sir sir ed. coke himself in the same case declareth , that the judgements of the common law have been both for the admirals jurisdiction , and the jurisdiction of the common law , both upon one and the same place , at several times : for saith he , fuit resolve per totam curiam que le soil sur que le mere flow & reflow , sc . inter le high water mark , & le low-water mark poet cê parcel d' un manner d' un subject el. ſ dier . . . act . & issint fuit adjudge in lacyes t case , trin. . el. in cest court en uncore fuit resolve , quant le mere flow , & ad plenitudinem maris le admiral avara jurisdictîon . de chescun chose fait sur le ewe inter le high-water mark , & le low-water mark per le ordinarie & naturall course del mare , & issint fuit adjudge in le dit case de lacy que le felony fait sur le mere , ad plenitudinem maris inter le high-water mark & le low-water mark per le ordinarie & naturall course del mare le admiral avara jurisdiction & uncore quant le mere est reflow le terr , port apperteine al subject & chescum chose fait quant le terr . est reflow serra try al common ley car ceo donques est per cel del country , & infra corpus comitatus , & our ceo agree ed. . . u issint nota que south le low-water mark le admiral ad le sole & abso●●● jurisdiction & inter le high-water mark & low-water mark , le common ley , & le admiraltie avoint divisum imperium interchangeablement come est avant dit , se 〈◊〉 super ●quam & l' auter super terram . it w●● resolved ( saith he ) by the whole court , that the soil upon 〈◊〉 the 〈◊〉 doth ebb and flow , to wit , between the high water 〈◊〉 , and the low water mark , may be parcel of a mannor of a subject , eliz. dyer . acc . w and so it was adjudged in lacyes x case , trin. the of eliz. in this court , and so it was resolved , when the sea doth flow unto the full height , the admiral shall have jurisdiction of any thing whatsoever done upon the water , between the high water mark , and the low water mark , by the ordinary and natural course of the sea. and so it was adjudged in the same case of lacy , that a felony done upon the sea at full sea , between the high water mark and low water mark by ordinary and natural course of the sea , that the admiral shall have jurisdiction : and so when the sea returned , the ground may appertain to a subject , and every thing done upon the ground when the water is returned , shall be tryed at common law , because it is then parcel of a county , and within the body of a county ; and with this agreeth that of the of ed. . . y so note that beneath the low water marks the admiral hath the sole and absolute jurisdiction ; and between the high water mark and the low water mark , the common law , and the admiralty shall have severally power interchangeable , as aforesaid , to wit , the one upon the water , and the other upon the land ; so it plainly appeareth by what himself hath declared , that though the land from the high water mark to the low water mark , may be said to be within the body of a country , when the water is off it , yet is it within the jurisdiction of the admiralty , when the water doth overflow it ; and this will prove no argument at all why the admiral should have no jurisdiction upon the ports and havens , but rather an argument à fortiori , vel à majori ad minus , that he shall there have jurisdiction . for if he shall not be excluded from his jurisdiction in those places , where the water recedeth and leaveth dry land of use and profit , which may be claimed by the lord of a mannor as parcell of that mannor ; much less can he be excluded from his jurisdiction in the ports and havens from whence the water doth never clearly recede , or where no man doth or can challenge any right of possession : and again shall he not be excluded those places in the exercise of his jurisdiction , where seldom or never , and little or nothing falleth under his cognizance ? and shall he be excluded those places in exercise thereof , where things of the same nature , and by the same law determinable of greater consequence , fall under his cognizance almost dayly and hourly ? if so , we may very well suspect the reason and cause thereof , that it came so to be , not for any good intended , either to the commonwealth or good people thereof , but for some private end . z to this he addeth , that it was adjudged paschae . eliz. a in the exchequor , diggs being plaintiff , that the land between the flowing and reflowing of the sea belonged to the lord of the mannor adjoyning , as the lord dyer doth there report , but to this i shall not need to strive to give any other answer , then to the former . to that of the . ed. . and the . concerning the contract for mariners wages , i shall give an answer when i shall come to handle the other contracts made at land . it is further objected that . ed. . and the . b tit . conusance . an account of trespass was brought for taking of a ship in the haven of hull against certain persons : the mayor and bayliffs of hull demanded cognizance by the charter of the king granted unto them , that the citizens and burgesses of hull , shall not be impleaded alibi de aliquibus transgressionibus , conventionibus & contractibus infra burgum , &c. quam infra burgum ; and the cognizance was granted , which proveth that the haven of hull , where the ship did ride , was infra burgum de hull , and by consequence infra corpus comitatûs , and determinable by the common law , and not in the admiralty court. which conclusion no logician will allow ex necessario to be deduced out of the premises , vix ex contingenti ; nor will any law ( as i conceive ) allow it , that two contending at law for that which belongeth to neither of them , though it shall be adjudged to one of them , that this shall in any wise be prejudicial to a third party that hath right thereunto , but that he may by the same law recover the same . several cities and boroughs , especially upon the sea coasts , do challenge several priviledges , some by prescription , and some by grant , as is already set forth in this chapter , as flotson at bristoll , &c. and the cinque ports have their admiralty jurisdiction ab antique ; yet doth not this make their ports and havens there to be part of their towns , or make them to be within their boroughs , but within the compass of their priviledges ; nay it rather sheweth the contrary . for things done upon their ports , they have their admiralty , and do , or ought to proceed according to the rules of the civil and maritime laws , talem habent jurisdictionem ratione portuum , non ratione alti maris , and are to give judgement according to the same law , as the vice-admirals of several parts do , from which judgements given in any port-town , ( except the cinque ports where the appeal lyeth onely to the warden thereof ) an appeal lyeth to the high court of admiralty , as it doth from the vice-admirals court ; and for other businesses done within their town , they proceed according to the common law and they have their several distinct officers for businesses of the one nature , and the other , as their water-baliffs for the one , and the land-baliffs or serjeants for the other ; and if the ports and havens were not within the jurisdiction of the admiralty , i know no use that cinque ports , or any other ; ports can have of an admiralty by themselves ( as absolutely and clearly the cinque-ports have ) seeing that the lord high admiral of england hath that jurisdiction of the main seas , together with all ports not so priviledged . and it cannot be less necessary for all the other ports to have all their businesses agitated therein , tried by the civil and maritime laws , then it is for the cinque-ports . hull , no doubt , hath great and large privileges ; but whether they extend unto things done upon the port or haven there , without the authority of the admiral , i know not : it is like enough it may , which being made known , the cognizance of this cause might very well be dismist from the cognizance of the judges , and left unto the major and bailiffs of that town . howsoever take it that the cause was dismist only upon that ground which is here set forth , viz. that the citizens and burgesses should not be impleaded alibi in aliquibus transgressionibus , conventionibus & contractibus infra burgum , &c. quàm infra burgum . this no doubt was sufficient for the judges of the common law to dismisse the cause from being proceeded in before them , before whom it was brought as an action of trespass , & not before the admiral , &c. for that it rather belonged unto the major of hull , then to them , though indeed it perhaps belonged unto neither ; and hereupon the major de facto might take cognizance , though by no law or right . i hope we shall not make the judgment of evaery major and recorder to be a law , or president that others must be ruled by : for then we may hang up the accessary , and go seek the principal afterwards , as they did at grantham in lincolnshire , as i have heard . but sir edward coke further saith , that the cognizance was granted , &c. i hope he meant not that it was adjudged to belong absolutely unto the major and bailiffs of hull , excluding the interest of all other parties : for that had been to have judged the cause inaudita nec vocatâ parte interesse habente . for the controversie was then whether the judges of the common law , or the major , &c. had the cognizance of that cause ; and they having dismissed it from their cognizance , could grant it no otherwise to the major and bailiffs of hull , but insomuch , or for that it belonged not unto their cognizance ; so that after the dismission this controversie was no longer between the judges of the common law , and the major of hull ▪ but now the difference concerning the jurisdiction of , and over this cause , must rest between the admiral and the major and bailiffs of hull , for that the admiral being no party in fudicio , the cognizance could no otherwise be granted unto the major and bailiffs of hull , then that they should have it for ought that court , in which the action of trespass was brought , had to do therewith , or to hold plea thereof , which could not barre the admiral of his claim of jurisdiction , who was no party in judgement : and then this only resteth as an authority quoted , that such an action was brought at the common law ; and as it appeareth , that the same was never there determined ; so doth it not appear that ever it was therefore determined by the major and bayliffs of hull . but the major and bailiffs perceiving an action to be brought at the common law for a trespass done upon their pors , might very well conceive that the action being there brought , the same was rather tryable before them , by virtue of that clause in their charter which was urged then by the judges of the common law ; and the cause being dismissed , as it appeareth not that the major and bailiffs determined it : no more doth it any ways appear , that they did yet by virtue of this dismission , or grant ( as sir edward coke termeth it ) take upon them so much as the cognizance thereof ; or if they did , that the admiral ever had notice thereof . but if the admirall did , or if he did not , yet if he had taken to his court the cognizance of this cause , i am confident that the major and bailiffs could no ways by virtue of that clause , or upon any other ground have taken it out of his hand , unless they have admiralty jurisdiction granted unto them , as the town of ipswich hath ; the substance of whose patent concerning the same , i shall here set down in confirmation of what i have said before concerning the admiralty jurisdiction upon the cinque-ports and other ports . henricus dei gratia , &c. octavus &c. cumque praedictus avus noster per chartam suuam praedictam , quam ut praefertur , confirmavimus , concesserit ballivis & burgensibus villae praedictae & successoribus suis inter alia , libertates , franches , privilegia , & immunitates , in eadem chartâ contenta & specificata , authoritatem & potestatem faciendi & exequendi infra eandem villam gypewici , ac libertatem & praecinctum ejusdem omnia & singula quae admirallo , seu ad officium admiralli pertinent . cumque portus villae praedictae & aqua currens & recurrens prout casus exigerit ab eodem portu per fluxum & refluxum maris versus le southeast , ad quendam locum vocat . polleshened , alias dict . polished , nec non tota terra & folum quae per hujusmodi fluxum & refluxum maris aliquo tempore aqua fuerit superundat ▪ sive co●pert . infra libertatem villae praedictae extiterint . et quod iidem ballivi burgenses & communitas , & successores sui habeant & gaudeant eis , & successoribus suis omnia & singula libertates , franches . authoritates , privilegia , jurisdictiones & immuniuates eis vel praedecessoribus suis aut eorum alicui seu aliquibus praedictum avum nostrum sive aliquem alium progenitorum nostrorum nuper regum angliae per chartas sive per chartam alicujus eorumdem progenitorum nostrorum , quas nos per litteras nostras praedictas de confirmatione acceptavimus , ratificavimus , & confirmavimus , contenta & specificata tam in dictâ aquâ , sive in cursu aquae ac praedictâ terrâ & solo per fluxum sive refluxum maris aquâ quandoque superundat . sive coopert . , quam in omnibus & singulis aliis locis quibuscunque infra villam , praecinctum suburbum , libertates & franches . praedict . juxta formam chartarum & concessionum praedictarum , prout ea ante tempora usi fuerunt & gavisi . et ulterius nos de gratiâ nostrâ uberiori ad intentionem quod praedicti ballivi , burgenses & communitas & successores sui securius & liberius absque ambiguitate , questione vel dubio habeant officium admiralli nostri & haeredum nostrorum infra libertatem , praecinct . & franchesc . praedict . & omnia quae ad officium admiralli tam super mare & littus maris quàm alibi infra libertatem , franchisc . & praecinct . praedict . pertinent , concedimus nunc ballivis & burgensibus ac communitati villae praedictae & eorum successoribus per praesentes , quod ballivi ejusdem villae pro tempore existentes sint admiralli nostri & haeredum nostrorum per & infra totam villam , praecinctum , suburbia , aquam & cursum aquae ac dict . terram , & solum per fluxum & refluxum maris quandoque aquâ superundat . vel coopert . seu in posterum superundand . vel cooperend . ac omnia & singula quae ad officium admiralli pertinent seu pertinere poterint tam super mare & littus maris quàm alibi infra libertatem praecinctum , limites supra specificat . faciant & exequantur in tam amplis modo & forma prout aliquis admirallus angliae in aliquo loco facere vel exequi consuevit & facere debuit quoquo modo , &c. et insuper nos de gra . nostra ampliori ad relevamen & incrementum villae praedictae quae ut dicitur diversimode depauperata est ac in auxilium solutionis dictae firmae suae sexaginta librarum nostr . & successoribus nostris annuatim ut praemittitur solvend . damus & concedimus per praesentes pro nobis & haeredibus nostris eisdem ballivis , burgensibus & communitati & successoribus suis wrecum maris , ac omnia bona & catalla quae dicuntur wreck , flotson , & getson ; & omnia alia bona & catalla quae admirallo sive ad ejus officium pertinent seu pertinere debent , aut poterint infra dict . portum & aquam ac terram & solum praedict . per fluxum & refluxum maris , ac omnia bona per fluxum & refluxum maris aqua ut praefertur superundat . vel coopert . vel in posterum superundand . vel cooperend . qualitercunque contingent . vel ibidem in mari , aut super littus maris invent . seu inveniend . & etiam omnia & singula bona & catalla felonum de se , nec non bona & catalla quae dicuntur deodanda infra libertatem , franchesc . & praecinctum villae praedictae , ac in & infra praedictum portum , cursum aquae ac terram & solum praedict . per fluxum & refluxum maris aqua ut praefertur superundat . vel coopert . vel in posterum superundand . vel cooperend . absquo compoto sive alique alio nobis vel haeredibus nostris pro praemissis vel aliquo praemissorum reddend . vel solvend . sciatis insuper , &c. teste meipso apud hampton-court tertio die martii anno regni nostri decimo per ipsum regem de dat . praedict . authoritate parliamenti . now i hope it plainly appeareth hereby that the admiral hath full power & jurisdiction upon the ports and havens , if he be not excluded by special grant , ( and that made in the vacancy or interval between one admirals patent ceasing , and anothers beginning . ) and if the port had been within the borough of ipswich , and things there done had been triable at their town court , or at the common law , then had they had no need of this grant of admiralty jurisdiction , &c. by which grant of admiralty jurisdiction unto them , it doth likewise as plainly appear , that whatsoever is done upon the port or haven , is of admiralty cognizance , this admiralty jurisdiction of theirs extending only unto their port and haven , which reacheth only unto the place called pollishened alias poleshead , and no further , which is the point of the high sea , ( as sir edward coke termeth it ) so that they have admiralty jurisdiction , and yet none upon the main sea , but upon the port and haven only . but i shall proceed unto the next thing by sir edward coke insisted upon . and in the next place it is thus objected , that r = . tit . trespass c in statham pl. . in an action of trespass for a ship and certain merchandizes taken away ( which trespass must of necessity be alleaged in some town and county in some river or haven ) the defendant pleaded that he did take them in le haut mere one les normans quex sont enemies le roy , and it is ruled a good plea , which concurreth with the other books . here it is not said that this trespass was laid or alleaged to be done in any town or county in any river or haven ; but saith he , it must of necessity be so . if he take town , county , river and haven disjunctim , then i think that according to the law the action of the trespass must have been laid to have been done somewhere , or else the action would have abated : but if he take them conjunctim , as that it must of necessity be laid to be done in some river or haven , in some town and county , i confess that according to reason and nature , a ship with her lading cannot be elsewhere , except it be upon the high seas : but i know that at the common law it is usuall per fictionem impossibilitatis ( which neither the civil law nor nature do allow ) to lay and alleage in a declaration that such a ship with her tackle , furniture , ammunition and lading , was in the possession of the plaintiffs in parochia beatae mariae de bow in warda de cheap , and thereby him lost , and there per inventionem came to the hands and possession of the defendant , &c. and why this trespass of taking away this ship and merchandizes might not as well be laid to be done in some certain place within some certain town farre enough from the port or haven , i know not : and it is not said , that it was laid to be done upon a port or haven . wheresoever the trespass was laid to be done , in what town of what county soever ( for in some town of some county , or in some part of some county it must be laid to be done ) yet amongst all the instances sir edward coke hath brought , and amongst all that i could ever yet hear of , i never knew or heard of any original action brought at the common law which was said for a thing done upon any of the ports or havens , except that of hull business , which never came to be adjudged between the admiral and the mayor , &c. of hull , &c. or whether the action was rightly instituted or not . the defendant pleaded as above , and it was adjudged for a good plea. i would gladly know what could be argued from hence , if the truth had been otherwise , and he had pleaded he took the ship and goods infra fluxum & refluxum maris , or that he took them in tali portu one les spaniards quex sont les enimies le roy , must necessarily this plea have been adjudged nought , because the other was adjudged good ? i see not the consequence how this conclusion dependeth upon the premisses , if deduced into a syllogism . it is objected likewise that . hen. . . d an action lyeth at the common law for fore-stalling , &c. in a port or haven , &c. and by consequence the admiral hath no jurisdiction there . here i do observe that about the and year of hen. . the then lord chief justice of the common-pleas did much endeavour suam ampliare jurisdictionem ; for about the same time the first judgement upon the statute of the of hen. . for double dammages was given for the pretended breach of the two former statutes of the and th . of rich. . and this of hen. . by suing in the admiralty for a thing not done super altum mare , contrary to those statutes , whereas none of those statutes have one word in them that tendeth to the binding up the admiral to the high seas , unless any man can make sur le mere super altum mare ; nor is there any word in them that tendeth to the making of the ports and havens to be infra corpus commitatus ; e as i have shewed before . by this judgement double damages were recovered against him that had received a loss of marks , odd monies ; and the damages were assessed by the jury to l. which by the judgement being doubled , amounteth unto l. so that instead of recovering of marks without any tryall , whether due to him or not , he is condemned in l. how the then plaintiffe ( as the record is cited ) having got the possession of the goods sued for by the defendant , formerly the plaintiffe , or pars agens in the admiralty , could sustain l. damage by being sued in the admiralty , i know not , nor can imagine : for the statute doth not say , the party sued in the admiralty court contrary to the statute of the th of richard the second , shall recover double the value of what he there sued for , but double the damage he sustained by such suit , which could be no great matter , unless he had recovered and obtained into his possession the summe sued for , which doth not appear , nor is it so much as alleaged or affirmed . now it could not be expected that so much sea being converted into land by this judgement by two years labour , and but finished and brought to pass in the th year of henry the sixth , the same land should be in the very next year , viz. in the th year of the same kings reign reconverted into sea . yet is there a great deal more colour for an action to lye at the common law for forestalling in a port or haven , then for the beforementioned judgement : but upon another ground then that which sir edward coke would have to be the ground ( namely because a port or haven is within the body of a county ) which is this . though the forestalling be an act done upon the port or haven , yet is it the forestalling of a market , which is kept at land ; so that act done upon the port or haven hath relation unto the market which is at land . and so the act done upon the port or haven may be said to arise from the market which is at land , and within the body of a county , and that act upon the port to be a forestalling of that market which is at land : just as a contract made at land for transporting goods by sea , is an act done upon the land , but hath relation to a thing done at sea ; and so the contract though made at land , is a thing that doth arise from a thing done or to be done at sea , and doth not arise from a thing either done or to be done at land within the body of any county : and therefore is this contract tryable in the admiralty , and not at the common law ▪ and this agreeth with the statute of the fifteenth of richard the second f , the statute being truly examined , which i shall plainly shew when i come to speak of contract . yet may not this construction of the forestalling upon the water be allowed : for this is no contract made for the performance of any act or thing at land positive , and therefore ariseth not from any act or thing to be done at land , but is a contract which doth privatively debarre a further act to be done at land : and besides this is a compleat act , having reference to nothing more yet to be done ; but the bargain is made , the comomodity bought , and all is done ; therefore is this forestalling triable in the admiralty court , and there punishable , as will hereafter appear by what i shall shew g in several chapters of this second book . in the next place it is objected , that the h. . . h it is said that the statute doth restrain that the admiral shall not hold plea of any thing rising within any of the counties of this nation , but executions he may make upon the land ; this statute which this authority citeth , must be the same before mentioned statute of ric. . i therefore i will say nothing to this here , more then that sir edward coke doth hence inferre , that though it be said in the ass pl. . k that every water which flows and reflows is an arme of the sea ; yet it followeth not ( saith he ) that the admiral shall have jurisdiction there , unless it be out of every county , or else such a place whereof the country cannot take knowledge , as it appeareth in the book of l e. . before cited . but how this hath any reference to that of the statute , to serve for his purpose , i know not . the last thing against that which is said . ass . pl. . m he would prove by that of ed. . n before cited , which i have answered already . it is argued out of fortescue , cap. . fol. . o that the admirals jurisdiction is confined to the high sea , for that he there saith ; nam si quae super altum mare extra corpus cujuslibet comitatus regni illius fiant , quae postmodum in prohibito coram admirallo angliae deducantur per testes , illa juxta legum angliae sanctiones terminari debent : which ( saith sir edward coke ) proveth by express words , that the jurisdiction of the admiral is confined to the high sea , which is not within any county of the realm . if fortescue had said much more then here he doth to have afforded him a better foundation for his argument , then this which he hath said , doth ; i should not have much marvelled at it : for he that conceived that if adam had not sinned in paradise , all the world had been governed by the common law , perhaps might in his time think it meritorious to reduce as much of the world as he could to the subjection of that law : but truly out of what he saith here , sir edward cokes conclusion is not logically to be deduced : for to say that because fortescue saith that the admiral hath jurisdiction upon the high sea , which is out of any county of the kingdom , that he hath no jurisdiction elswhere , is no better an argument , then to say that sir edward coke was lord of the mannor of n. and therefore he could have no land elswhere : for fortescue doth not speak this exclusive to any other part of the admirals jurisdiction ; nor by saying quae super altum mare extra corpus cujuslibet comitatus regni illius fiant , doth he averre , quod aliquis portus maris est infra corpus alicujus comitatûs . if this answer doth not satisfie , adde the answer to the next objection to it . the next objection is deduced out of the rich. . fol. . p quod hibernici sunt sub admirallo angliae de re facta super altum mare , which ( saith he ) agreeth with the former , viz. that the jurisdiction of the admiral is super altum mare . and no doubt but it is : but it doth not therefore follow that it is nowhere else ; now this very authority sheweth , the true use and ground of this distinction of super altum mare , and super portum maris , which is this : the admiral of england hath jurisdiction super altum mare quo ad hibernicos , & hibernici sunt sub admirallo angliae de re sacta super altum mare & non super portum hibernicum nisi per appellationem . and so it is between england and other nations , adjoyning to the brittish seas : for the kings of england have ab antiquo had the dominion of those seas as is sufficiently demonstrated and proved by that learned gentleman mr. selden q by exceeding many arguments throughout his whole book de dominio maris , called mare clausum which i have toucht upon before : but though the king of england had the dominion of those seas , yet had those nations admirals , who had the jurisdiction of , and over all business done in and upon their own ports , so that the admiral of englands jurisdiction respectu regis angliae dominii maris is said to be super altum mare quo ad alias omnes nationes . but as had his power from the king , so hath he power , authority and jurisdiction , as over the sea , so over the ports and havens of the sea , belonging to this nation , aswell as the admirals of france and the admirals of other nations had , and have over the ports and havens belonging to their several nations , which undoubtedly they had and have , as hath been shewed before . r and upon letters of reprizal no man by vertue thereof taketh or seiseth any ship or goods within any foreign port , or any port or chambers of a foreign prince , other then the ports and chambers of that prince , against whose subjects the same were granted . and in such cases as these which have relation to the subjects of foreign princes or states it is necessary to deduce , that such a fact was done super alto mari , & hoc est quoad portus suos : but in other cases for maritime businesses done either upon the port or contracted for upon the land , it is sufficient in the first to lay in the libel that they were done infra fluxum & refluxum maris , and in the last infra jurisdictionem admirallitatis , as hath been already said , and shall hereafter be more fully shewed . for that which followeth in the next place out of stamford , i joyned it with that of the ed. . and have already spoken thereto . ſ next it is said & ph. & mar. dyer . . t by the libel in the admiralty , the cause is supposed to commence sur le haut mere , & infra jurisdictionem del admiralty ubi revera facta fuit in tali loco infra corpus comitatûs , & non super altum mare ; whereby ( saith sir edward coke ) it also appeareth that the lord admirals power is confined to the high-sea . this conclusion can no wayes be deduced out of the premisses , for though , by the libel in the admiralty court the cause was supposed to commence sur le haut mere , & infra jurisdictionem de l'admiralty , and perhaps falsly so suggested , because the thing was done in some town within the body of a county : for the instance is , ubi revera facta fuit in tali loco infra corpus comitatûs ; which locus may be any in-land town within any county , and non super altum mare , as it deduced in the libel : for it doth not say ubi revera facta fuit super tali portu infra corpus comitatûs : if by the libel the cause had been supposed to have commenced in , vel , super tali portu infra fluxum & refluxum maris , then the words of the authority might have run thus , ubi revera facta fuit in tali loco infra corpus comitatûs , & non super talem portum , vel infra fluxum & refluxum maris , aswell as non super altum mare ; for the words , & non super altum mare , are onely in affirmance of the contrary to what is layed in the libel , and no ways confining the admirals jurisdiction to the particular place laid in the libel , specifying and designing that very place where such a particular act was not done , if so be in the libel it had been laid , that this act had been done about the mid-way between dover and callis ; and the authority had said , ubi revera facta fuit in tali loco infra corpus comitatus , and not in or about the mid-way between dover and callis , i hope no man will say , that by this authority the admirals jurisdiction had been confined to that part of the seas that is about the mid-way between dover and callis ; so that it is plain this conclusion cannot be drawn out of the authority . the rest of the authorities which follow concern contracts made at land of things to be done and performed at sea , and of things done or contracted beyond the seas , which u i shall deferre to their proper places . there be two things more urged to prove the admirals jurisdiction to be confined to the high seas , and not to be upon the ports and havens , which are not cited amongst his book-cases and authorities of books , but are cited before them ; one amongst the praemunire's by him cited , which i have spoken to already x , and the other cited amongst the prohibitions by him cited , which concern contracts , and are referred to their proper y places . these two i shall here insert before i proceed to the next chapter . the first of them is urged out of the book of entries , fol. . tit . z admiralty , where it appeareth ( saith he ) that the taking of a ship called the trinity of london , lying upon the river of e. in the county of kent , is not super altum mare , but infra corpus comitatus cantiae , and therefore a suit for the taking of that ship lying there , in the admiralty court before john earl of huntingdon , admiral of england , appeareth to be against the said statutes , and yet no question that was infra fluxum & refluxum maris , & infra primos pontes . here he saith , that the taking of that ship in that place appeareth to be against the said statutes , but mentioneth not what statutes , having quoted divers before . if there had been a judgement in the case , he certainly would have added this proof to the judgement of burton and putts case , and have averred it to have been against those statutes of the and of ric. . and hen. . but here it is inserted amongst the praemunires by him cited , and the statutes next before mentioned , are , the statute of hen. . c. . and the statute of ric. . concerning praemunire's , which must be the statutes , against which this taking must be said to appear to be ; by reason he saith it appeareth to be against the said statutes , which must be meant of the next mentioned preceding statutes ; if then , it appeareth there to be against the statute of premunire , i hope it hath already a received an answer : if against that of the of hen. . c. . it cannot be so , as shall be shewed when we come to treat of freight and b contracts , where we shall have occasion to mention that statute against his tenents . the other thing by him urged doth next precede the prohibitions by him quoted ex rot. . mich. . hen. . c the river of thames at billinsgate ( saith he ) is not within the jurisdiction of the admiralty , but infra corpus comitatus . this followeth next after the premunires , and precedeth next before the prohibitions by him quoted , that the river of thames at billingsgate is not within the jurisdiction of the admiralty : by this record it must appear thereby not so to be , either by a premunire brought , or by a prohibition granted , ( as i conceive ) being inserted in that place , and must have some relation either to what precedeth , or what followeth . if the river of thames at billingsgate by this record appear to be infra corpus comitatus by a premunire brought , i can say no more to it then i have already d said . if by a prohibition granted onely , it proveth nothing ; for many a prohibition hath been granted , and consultations have been awarded , without denial of the suggestions . and oftentimes prohibitions have been granted upon such suggestions as could not be maintained , but deserved consultations upon the debate thereof ; and sometimes the parties have come to an agreement after prohibition granted , when consultations would have been awarded if they had been sued for , which are said to be judgements in such cases : but a prohibition is no proof until a dispute had upon the validity , and a determination thereupon , no more then the bringing of an action at the common law , and giving a declaration without any further proceedings , is a proof that what is by declaration claimed , is due , or that the action was duely and legally instituted and brought . chap. ix . that the rhodian and other maritime laws were ordeined as well for the decision of the differnces happening upon the ports and havens , as upon the high seas . all these proofs and authorities which i have handled in the four last , and next preceding chapters being collected and gathered into one heap , as by sir edward coke they are , and taken by themselves , do make a specious shew , and a fair colour for the turning the lord high admiral of england out of his jurisdiction , upon the ports , creeks , and havens of the sea , but no more then a shew or colour as appeareth to my view . for the ancient , constant , and continued practice of the admiralty court , and all the proofs , presidents , and authorities , which make to the contrary of what is by him set forth , being with them well weighed and considered , all that he hath shewed in this particular , will serve onely to prove what interruptions have been put , and inrodes made upon the admiralty court , : for certainly the proceedings , acts , and judgements given in the admiralty court concerning businesses agitated and done upon the ports and havens will , as presidents for the admirals jurisdiction there , amount unto a great number for those few he hath quoted against it . the jurisdiction of the admiralty , and the jurisdiction of the common law , having always been two distinct jurisdictions , having no dependancie each upon the other , but both exercised under the kings of england , e i know not why the ancient practice and presidents of the admiralty court should not be as convincing in the proof of this particular , which resteth in controversie between them , as the practice and presidents of the other : but it is like enough some will be ready to averre that the admiralty court , is not a court of record , and therefore presidents of that court are not of so great credit as the presidents of the courts of common law , but it will be very unfit for me to enter into that dispute , when as it is upon the matter put to the question , whether it be so much as a court at all , or not : for if it shall have the cognizance of scarce any cause at all ( as it cannot have , if all be true that sir edward coke would prove , as i shall shew hereafter , when i come to summe up all together ) then doth it not deserve so much as the name of a court. this only i shall say by the way , that when it was a court , or if it be a court , it hath been , and is as much a court of record as all courts in foreign nations beyond the seas have been , and are ; and whatsoever hath in that court been , or is done , being legally transmitted and certified , would have carried , and doth carry along with it as good credit in all parts of christendome as any record whatsoever , certified out of any of the courts at westminster , and so will and doth at this present for any thing therein transacted . but if i should enter upon the presidents in civil causes , which are to be brought out of the registry of the admiralty for the cognizance of causes done upon the ports and havens , i should make my self an endless piece of work ; and when i have done those things , perhaps may for all that hath been said , be thought by many not to be authentique : i shall therefore pass them over , and come to those things which are as authentique , in my poor judgement , for proof of the admirals jurisdiction upon the ports and havens , as any thing that hath been brought against it . and i shall begin first with the rhodian and antient maritime laws , made , ordained , and appointed for the decision of maritime causes arising and happening as well upon the ports and havens , as upon the high seas , and then proceed to other proofs . by the laws of the rhodes and other sea laws inserted into the body of the civil law , which give directions how to steer the judicature of so many causes , which may happen and fall out upon ports and havens , it manifestly appeareth that things there done , and controversies thence arising , are properly cognizable by the admiral , no other law having the like grounds , or affording the like rules for the decision of such differences , or giving such directions for the avoyding of strife in businesses of that nature : to introduce them all here , would make a volumne , which i intend not , and it would be too tedious a labour to effect that which so few regard , namely to set forth the most exquisite excellency of the civil law founded upon the very strength of reason it self . but why should i so highly commend that which is so much scorned , either to be understood , or so much as lookt after , and by some condemned before it be lookt into , or at all understood what it is ? serjeant callis f condemneth the imperial law , which ( saith he ) the civilians use ; for that the sea-shoar is therein held to be common to all , and saith that the common law of england doth in reason surpass either the imperial law or the civil law ; which distinction sheweth the understanding he had in those two laws , which the world hitherto made but one . and sir ed. coke condemneth the civil law for proceeding by paper proofs ( as he calleth them ) slighting them as if those proofs that were taken without a publique notary without the repetition of the witnesses before a judge , or without the liberty of administring interrogatories by the adverse party at the same time , and only exprest by word of mouth , and neither set down in paper or parchment , but passeth away with every ayr , were better taken , and remained more perfect on record , then those paper proofs which are in such manner taken , and with as much care preserved . but surely in most controversies which do arise from a thing done upon the ports and havens , it is most necessary , that the proof for the decision thereof , be taken by such paper proofs ; sometimes in regard of the speedy return of the witnesses into the parts beyond the seas , who cannot stay such an examination ( without their undoing ) as to be present to afford their testimony viva voce at the time of the tryall : sometimes in regard necessary and requisite witnesses are hence departed , before the suit be instituted , and resided beyond the seas , where their testimony must necessarily be taken by commission , which by the manner of proof made at the common law , cannot be done ; so that most differences which do arise from things done upon the ports and havens , must be proceeded in according to the rules of the civil law , and have their determination from the same , or else be decided without testimony , which is to judge blindfold , or else to rest unadjudged , and the wronged and injured party to be left remediless and unrelieved . but it will be answered , that in such cases they may have a commission out of the chancery for that purpose : to which i must reply that the controversie is whether the cognizance and tryall of causes arising from things done upon the ports and havens doth belong to the common law , or to the civil and maritime law. and then surely it must more properly belong unto that law and that court , which can of it self without the assistance of any other court , make a compleat proceeding and tryall , and give a direct judgement according to express rules of justice in such causes , then to that court , which without the assistance of another court can do neither . neither can the common law courts in very many such causes of it self proceed for want of such commissions ; neither hath it in as many causes any express rules to direct the judicature thereof . i shall here set down some few of those laws , which the civil and maritime laws give in such cases , so farre forth onely as to shew , that the maritime laws were ordained as well for the ports and havens , as for the main seas . first then for the lading of a ship , which is always or commonly in a port or haven , the civil and maritime law directeth who of the ship shall be chargeable with such lading , as shall be put aboard the said ship , and who shall not ; sunt quidam in navibus , qui custodiae gratiâ navibus praeponuntur ut 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , & diaetarii : si quis igitur ex his receperit puto in exercitorem dandam actionem ; quia is qui eos hujusmodi officio praeponit , committi eis permittit ; quanquam ipse navicularius vel magister id faciat quod 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 appellant : sed & si hoc non extet , tamen de recepto navicularius tenebitur g non debet per remigem , aut mesonautam obligari , sed per se , vel h navis magistrum . this law doth not onely shew who is chargeable with the wares and merchandizes laden aboard of the ship , but likewise what things they are chargeable for , and saith , quod cujusque salvum fore i receperint , hoc est , quamcunque rem sive mercem receperint ; and least it might be thought that it is onely meant of wares and merchandizes , and nothing else , it explaineth it self yet further , and saith ad eas quoque res hoc edictum pertinere quae mercibus accederent , veluti vestimenta quibus in nayibus uterentur , & cetera quae ad quotidianum k usum habemus ; & parvi referre res nostras an alienas intulimus , si tamen nostra intersit salvas esse . l and assoon as such merchandizes and other commodities are put aboard the ship , whether she be upon port , haven , or any other part of the seas , he that is exercitor navis , is chargeable therewith ; and if the same be there lost or purloined , or sustain any damage , hurt , or loss , whether in the haven before , or upon the seas after the ship be set forward on her voyage , whether it be done by the mariners or any other through their permission or negligence , he that is exercitor navis is to make good the same . for saith the law , recepit salvum fore , utrum si in navim res missae ei assignatae sint , an etsi non sint assignatae , hoc tamen ipso quod in navim missae sint receptae videntur , & omnium recepit custodiam quae in navini illatae sunt : et factum non solum nautarum praestare debet , sed & m vectorum . and in these cases two several maritime actions do lie , whereof the agent hath his choice . dicendum duas proponi actiones exercitorias : una est de recepto in simplum , quae dicitur in factum ; altera est actio in factum è delicto nautarum ex quasi delicto exercitoris qui videtur delinquere quod improbis nautis utatur . et haec est in duplum , sed in eam non venit n factum vectorum . so that the very lading of goods aboard the ship , chargeth him that is exercitor navis therewith ( which the common law doth not ; ) for he is lyable for whatsoever his mariners shall do aboard the ship , be she in port , haven , or upon the high seas ; but he is not lyable for what they shall do , being at land , and not aboard the ship : so that the ship maketh distinction of actions , but maketh no distinction at all between her being upon the high seas , or upon port or haven ; debet exercitor omnium nautarum suorum sive liberi sint , sive servi , factum praestare ; nec immerito factum eorum praestat , cum ipse eos suo periculo adhibuerit ; sed non o alias praestat , quam in ipsa nave damnum datum sit , caeterum si extra navim licet a nautis non praestabit . but if the exercitor shall receive goods on the shoar in nave custodienda sive transportanda , and shall lose them , or suffer them to be stoln from him before they shall be laden aboard the said ship , he shall be lyable to make satisfaction . idem p ait etiam si nondum sint res in navim receptae , sed in littore perierint , quas semel recepit , periculum ad eum pertinere . if therefore he be lyable for such goods as he shall receive upon the shoar to be put aboard his ship , and transported , in case they there perish , or be otherwise damnified ; much more shall he be answerable for such goods and merchandizes as he shall receive , or shall be laden aboard his ship , if the same perish or be damnified in or upon the port or haven . those laws of the rhodes which we find inserted into the body of the civil law , which are the ancientest sea-laws extant , do treat of the casting overboard of goods in a storme or tempest for preservation of the ship , and the remainder of goods , and of the avaridge payable out of the same , whether the ship be in such stress of weather upon the ports or havens , or upon the high seas ; and the rules there set down do serve as well for the one place as the other . these laws and rules being general , and not restrained to the high seas , do sufficiently prove that they were constituted and ordained for all places where a ship might fall into such danger , that by this jactus mercium the ship and remainder of the goods and merchandizes might be preserved . and such danger doth not alwayes fall out upon the high seas , but oftentimes upon the ports and havens . but least this shall be thought not sufficient , but that notwithstanding the generality of the sea laws , which have provided directions sufficient for what is to be done in such cases , yet they were to be made use of only when such accidents happened , and fell out upon the high seas ; and that they were constituted and ordained only for such causes falling out upon the high seas , and not upon the ports and havens , but left such causes there falling out unto the cognizance of the common law here in england , and other municipal laws in other nations . i shall here set down one express law , inserted amongst the rest of 〈◊〉 sea laws , which sheweth that all these laws were as well appointed for such causes happenning upon the ports and havens , as they were ordained for those that fell out on the high seas , which law maketh further provision in a cause of the like nature , happenning either upon the high sea or port in express words , and sheweth plainly too , that all the rest were constituted and appointed for both ; which runs thus : navis onustae levandae causa ( quia intrare flumen vel portum non potuerit cun●●onere ) si quaedam merces in scapham trajectae sunt , ne aut extra flumen periclitetur aut ipso ostio vel portu , eaque scapha submersa est ; ratio haberi debet inter eos , qui in nave merces salvas habent , cum his qui in scaphâ perdiderunt perinde tanquam si jactura facta esset p here it is manifest by this law , that if for the lightening of a laden ship , because she cannot enter into the river or port with her burthen , some of the goods shall be put into the ships boat , least the ship should be endangered either without the river , or in the door of the sea or port it self , and that boat shall be drowned , a consideration is to be had between those which have their goods saved in the ship , and those that have lost their goods in the boat as if there had been a jacture made ; so that here we see the same rule holdeth for the preservation of a ship , as well within the port or haven , or the mouth or door thereof , as for her preservation upon the high seas . it may be further observed out of this law , that ostium maris and portus maris be both one and the same thing : for as ostium is a door-gate or entrance , so is portus a port or portal , beginning or entrance of the sea , or into the sea ; and that ostium maris is not an imaginary thing between the sea and the port or haven , as sir edward coke would have it to be ; for as by saying a port or haven , we mean but one and the same thing , intimating that you may take which term you will , as this law doth in the beginning by the words flumen vel portus , mean one and the same thing , when it saith quia intrare flumen vel portum non potuerit , &c. so doth it in the next place by ostium or portus mean one and the same thing likewise , when it saith ne periclitetur aut extra flumen , aut in ipso ostio , vel portu , the ( aut ) making the disjunctive , and not the ( vel ) and indeed the whole port withal its banks is door slender enough for the keeping of the raging waves and wallowing billows of the sea from overflowing the land. and the banks may properly enough ( though they be termed the sea banks ) be said to be the doors of the land , to keep the sea out of it ; yet must the haven or port , wherein the water floweth and and refloweth , necessarily be said and concluded to be the door , portal or entrance , whereat all ships and vessels whatsoever must necessarily enter into the main sea ; and this door of the sea is as much a part of the sea , as a door of an house is a part of that house , where it is the door , and doth more properly belong to the sea then to the land , whereof it is no part , but different and is distinct both in name and nature , being two several elements ; and the causes arising from things done either upon the high seas or upon the ports , being of one and the same nature , all belonging to shipping , navigation , trading and commerce , &c. they are all more properly cognoscible and tryable by one and the same law , then by two , namely by the civil and maritime laws , then by the civil law and the law of the land too . for nulli prorsus audientia praebeatur , qui causae continentiam dividet , & ex beneficii praerogativa id quod in uno eodem que judicio poterat terminari apud diversos judices voluerit ventilare , poena ex officio judicis eminente ei qui contra hanc supplicaverit sanctionem . q and the rules of the civil and maritime laws in cases of this nature are very many , and very observable for the directions of the judicature therein , setting forth what is to be done according to the variation of the case , as the law navis onustae before mentioned setteth forth what is to be done , in case divers goods and merchandizes be taken out of the ship and put into the boat , and the boat perish ; so contrary , if the ship and remainder of goods and merchandizes remaining in her perish , either upon the sea , or in the port , and the boat arrive in safety with the goods and merchandizes put into her , r the same is to be done . it is not enough to know a general rule , without its exceptions and limitations ; nor is it enough to know that si levandae navis gratia jactus mercium factas est , omnium contributione sarciatur , ſ that an avaridge must be had upon all the goods that are saved , towards satisfaction of the owners of those goods that were cast into the sea ; but it is necessary to know ( in case the avaridge be not agreed of ) what action those whose goods were cast into the sea , have against the master of the ship for those goods , and what action the master hath against those whose goods were saved , t and what the duty of the master is in these cases . it is likewise necessary to be known , and the civil and maritime laws do set forth , whether the ship be lyable , and ought to be cast into the avaridge or not ; and whether if the ship be worn and become worse by the tempests and storms , she shall be considered therefore out of the u avaridge of the goods saved ? and likewise these laws set forth what is to be done in case there be goods and merchandizes of several sorts , and many passengers , bond-men and free ; and whether goods of all sorts ought to be cast over , and what is to be done in case there be goods aboard which do not burthen the ship , as jewels , precious stones , and rings ; and at what proportion or rate they are to be cast into the avaridge ; whether apparel , or the passengers and merchants wearing rings ; whether the passengers themselves , and their , or the ships victualls shall be cast into the avaridge , the contribution shall be made according to weight , or according to the value , x an prout ponderant , an prout valent . it is considered by the same laws likewise , if a ship be taken by a pirat , whether upon the sea , or upon a port or haven , and be redeemed , whether all must contribute or not ; and if any thing be taken away by theeves or robbers , whether he must lose it that did own it ; and if any one redeem what is so taken away , whether y contribution ought to be made for the redemption . and it is considered how and in what manner this avaridge is to be made , whether the goods lost are to be valued by themselves , and the goods saved by themselves , or whether altogether , and whether goods lost are to be valued according to the price they were bought for , or according to the price they might have been sold at , and at whether of those two z prices the goods saved are to be valued ? it is likewise considered , whether if a servant or slave in the casting over board of the goods doth happen to be drowned , whether any estimation be to be made of him ; and if any of the passengers be not solvendo , whether the payment of his share belongth to the master or not ? whether if the goods cast over board be again recovered , contribution ought to be made ? if contribution have been made , whether it be to be restored , and in what way the master ought to proceed against him that hath so received it ? and in what way the contributers ought to proceed against the master . and whether goods so cast over board are to be accounted pro derelicto , and so become theirs who shall afterwards possess them , or not be so accounted , but remain still the owners ? vtrum a res domini manent , an fuerint occupantis ? it is likewise considered by these laws , whether if the master to avoid danger , shall cut off , or throw over board any of his masts or other instruments belonging to his ship , for preservation of his ship and her lading , contribution in this case be due ? whether the consent of the passengers and merchants in the ship be requisite , or not ? and whether it must be done b justi metus causâ , and who is to judge thereof ? in like manner it is considered , if the goods cast over board be afterwards regained and saved by such as for pay or reward shall adventure and take pains to effect the same , si per urinatores recuperatae sint & extractae , and the ship with the remainder of her lading shall afterwards be cast away , whether the goods so regained shall contribute to the other afterwards cast away ? and if some of those goods cast away with the ship shal in like manner be recovered , whether they shall contribute unto him that made the first c jacture . after a jacture or casting over board , if some of the goods that be saved be deteriorated , damnified or made worse ; by these laws it is considered , whether they were so hurt by the ill stowage , or by the dashing of the water at the time of the jacture , or by the uncovering of them ? it is considered likewise , whether the damage be more then the contribution will come to , or the contribution will come to more then the damage is ? and then it is determined whether the damnified goods shall contribute or not , and if they shall , d in what manner ? if a ship be split , or any otherwayes cast away , whether upon the seas , or upon a port , and the goods some or all be preserved , and saved , it is determined , whether the goods shall contribute to the loss of the e ship , or not ? if the masts of the ship , whether upon the sea , or upon the port be shivered into pieces , and the sails and other tacle be consumed with lightening , and the goods by what means soever preserved , though by obtaining new masts , new sails , and new tacle , &c. these laws determine whither the owners of the goods be to make f contribution or not ? hereby it is plain that the special cases , which are comprehended under one general law or head , are very many and various , and require various decisions or judgements , which are upon express reasons by the civil and maritime laws and commentators upon them most exquisitely set forth , as he that shall look thereinto shall find . if one ship shall fall foul upon another , either upon the high seas , or upon any port or haven , so that either or both of them have sustained hurt or damage , the same laws do most exquisitely determine between them . and under this head do likewise fall very many various cases , variously by those laws determined according and agreeable to most excellent reason h . if the mariners shall do damage to the merchants goods , ●s by drawing out and drinking up their wines , &c. whether they do it upon the seas , or when the ship lyeth at anchor upon any port or haven , the case is the same ; and the civil and maritime laws determine what is to be done herein : many general heads more containing under them several various particulars might be instanced in , but these are sufficient to shew that the rhodian and maritime laws were ordained as well for the determination of differences happening upon the ports and havens , as upon the high seas , and have express laws for the guiding of the judgement therein : which all nations do acknowledge and allow , wherein the common law of england under correction , is deficient . chap. x. the laws of oleron , and other ancient laws of the sea , were constituted and ordained , as well for the decision of controversies , happening and arising from things done upon the ports and havens , as from things done upon the high seas . by a record which i have before set down at large ; a it appeareth that the laws now called the laws of oleron were ancient laws , and anciently practised for the regulating of maritime and sea ) affairs in that maritime island , and that those laws were by richard the first , king of england in his return from the holy land corrected and interpreted ; and in that island published in the french tongue for that purpose , and called la ley oleron ; in that this record saith , they were by him correcta & interpretata , it plainly appeareth that they were made before : but whether then used in england or in that island onely , may seem doubtful : however it appeareth by the record it self , that after such correction and interpretation , they were likewise published in england , and were ordinata in edward the first 's time , and consummated in the year of edward . now these laws being thus established , do plainly shew , that the admiral had and ought to have jurisdiction upon the ports and havens , as well as upon the high seas , for that they do set forth what is to be determined in controversies arising , as well from things done upon the one as the other ; i shall instance in some of them . if a ship perish in any place whatsoever , whether upon port , or the main sea , the laws of oleron give direction what the mariners ought to do for the saving of the goods , and how farre the master may recompence them for their pains , in case they save any of the goods , and in what manner ; whether he may sell or pawn such goods as are saved , for , or towards their satisfaction ; and whether he may sell or pawn any of the tackle of the said ship ( if saved ) without authority from the rest of the owners b they give directions when a ship arriveth in any port or haven , laden or not laden , when the mariners may go out of her with leave of the master , when without , and with how many cables she ought to be anchored , before they may go out without leave , and what care they ought to take , when they do so to free themselves from making satisfaction for such damage and loss , as the ship or goods shall sustain in their absence c they likewise determine in what case the master shall pay for the healing of a maim , or hurt of a mariner , and in what cases he shall not , d be that done either in the ship at sea , or in the port , or at land . they set forth likewise what the master ought to do , in case any of his company fall sick , what care he is to take of him , and what provision he is to make for him at land , and what allowance he is to afford him ; e all which denied , or if any part thereof withheld , the same is recoverable by these laws before the admiral . these laws do likewise set forth other duties of the master and mariners , when they come into a port or haven , where they are to make their right discharge , as by this judgement appeareth . il avient qun f maistre d'une nef vient a sauvete a sa discharge il doit monster en aux merchants lescords avec quoy il quindera , & sil voit amender , le maistre est tenu a lamender lui , & ses mariners & y doit partir le maistre pourtant quil prent in guinda ge , & doit la guindage estre mys pour restorer le dammage primerement & le remenant soit estre eulx , maiz se cordes rompent sans se quils les eussent monstrees aux marchants , ilz seront tenus a rendre tout le dammage , mais se les merchants dient que les cordes sunt bonnes & belles & ilz rompent chun doit partirau damage cestassavoier des merchants a qui le vin sera tant seulement , & cest le judgement en ce cas . and clearly this is a judgement upon a thing happening upon a port or haven , and no where else ; whereby the judge of the admiralty is to be guided in businesses of this and the like nature . how a master ought to behave himself towards and amongst his mariners , and the mariners towards the master , and they amongst themselves , be they upon seas , or port , or haven , and what the punishment is in case they demean themselves otherwise , is by these laws plainly shewed g . the same laws have likewise provided what is to be done in case one ship shall do damage or hurt to another , upon the port or haven . vne nef est en ung comis a maree & estant a sa maree avec autre nef vient & fiert la nef qui est en sa paix en telle maniere q'lle este dommagee du coup que lautre nef luy donne & yades vins en fundrez dedens le dommage doit estre apprisie & party parmoitie en tre les deuz nefs & les vins qui jont dedens les deux nefs dovient parti , &c. et est raison pour quoy cest judgement est fait & ainsi feust quil avoit tout le dommage amende une vi eille nef se myst volentiers en la voire dune melleure nef pour auder avoir lautere nef se elle eustous ses dommages , mais quant elle sceit q'lle doit parir a la moitie elle se mett volentiers hors de la voye , & cest le judgement en ce cas h . by these laws likewise are determined differences falling out between ships lying at anchor , upon any port or haven , and determine what is to be done in case one ship cast anchor too near another , and who shall pay the damage in case any shall be sustained thereby , or for want of boighs , &c. vne nef ou deux ou pleuseurs en ung havene ou il ya pou deave & si assech lune des nefs trop pres de lautre le maistre de celle nef doit dire aux autres mariners seigneurs levex ure ancre car elle est trop pres de nous & pouroit faire domage & ilz ne la veullent lever le maistre poureulx & ses compaignons la vont lever & a longmer de lui & silz la faillent , a lever & lancre leur face domage ilz serout teneuz a lamander tout au long . et sil yeufl mys ancre sans boye & elle face domage ilz seront tenuz a lamender tout au long , & silz sont en ung haven qui astech ilz seront tenuz a mettre balingues aux ancres quilz ne peregent au plam & cest la judgement i . what meat the mariners may carry out of the ship to land , how long they may stay before they return , what damage happening either to the ship or goods ( being in the port or haven ) in their absence , they are lyable unto ; these laws do determine , besides many other accidents happening in and upon the ports and havens , whith are by them decided : as when a ship shall by contrary winds , and stress of weather , be tyred at sea , so that she is constrained to make to a port not intended , and there is in want of victual or tackle and furniture , to set to sea again , and wanteth money wherewith to victual , tackle , and furnish again , what the master may then do , whether he may pawn or sell the merchants goods for relief of the ship , what and how much of the goods he may so pawn or sell , when the case is that he may so do , and when and upon what occasion he may sell the ship , and by law is warranted so to do , and when k . the same laws do determine what is to be done , in case a man take upon him the office of a loads-man or pilot , and by reason thereof undertaketh to bring a ship safe to anchor in the port of her discharge , and through his negligence or want of skill , the ship be cast away or perished , or the goods damnified , in the port or harbour ; and likewise , when and upon what grounds such pilot or loads-man shall be discharged , and how and in what manner the master of that ship shall be liable l . these laws set forth likewise what is to be done by the master of a ship , when his ship arriveth in the right port of her discharge , and hath stayed there by the space of one and twenty days for discharge , and is not in that space discharged . more particulars i might instance in , out of the said laws of oleron to the same purpose , and how farre the said laws are extended or limited by latter writers upon the civil and maritime laws ; but that will be a work more properly to be entred upon , when this jurisdiction of the admiralty shall be compleatly settled , and freed from interruptions in its due procedings : i shall therefore onely set down this last judgement , in its own language , not endeavouring to shew what the law is either in this case , or any of the other before recited , but to conclude that by these laws so long since established for the directions of judgements in maritime causes it plainly appeareth that the ports and havens are within the jurisdiction of the admiralty , and that all differences therein , or thereupon arising , are cognoscible and tryable in the same . the words of the judgement are these . item ordonne est pour custume de mer , q'se une nef arrive en ung port a sa droitturier le descharge & demoure la nef illecq ' , chargee jusq's axxi jours ounrables la mettre puet been mettre hors sur ung keye & le maistre doit ordonner & bailler ung de ses mariners an marchant pour prendre garde aux vins ou autres derrenes jusque a tant q'le maistre soit pay de son frett m . et cest le judgement en ce cas . very many more there are , which will be too tedious here to set down : none of all which is by any part of the common law , treated of at all , nor can it if it keep its own rules render the same judgement with these laws but a diverse , if not in many cases a clear contrary . chap. xi . that by the ancient statutes of the admiralty setled before the last confirmation of the laws of oleron edw. . and articles of enquiry added thereunto , it is plain that the admiral hath jurisdiction upon the ports as well as upon the high seas . there are likewise ancient statutes of the admiralty to be observed , both upon the ports and havens , the high seas , and beyond the seas , which are comprised in an old authentick book , called the black book of the admiralty , which statutes are ingrossed upon vellam in the said book , and written in an ancient hand , in the ancient french language , which plainly shew the admirals jurisdiction to be upon the ports and havens , as well as upon the high seas . i shall set down onely one of those statutes for proof thereof , which sheweth how and in what manner damage done by one ship unto another in a port or haven , as well as upon the high seas , shall be satisfied in case the same be wilfully done , and how , and in what manner in case the same be unwillingly done by chance , by reason of tempest or other mishap . the words of the statute are these . it que nulle nef ne vessel de la flotte pour orgueil ne pour haine ou envie sur le mer our entrants es ports ou en port ottroie veille audommage dautre nef ou vessell de la flotte au pris par ceux de la flotte sur payne de faire playne amende de ce qui est endommage en son default , & qui endommage & debrysse au tres entrants aux ports , ou dedens ports , ou sur le mere neuvoillautz par cause de tempeste ou autrement il paiera & amendera la moitie du dommage a la discretion a & judgement de l'admiral . there are likewise in the same book added unto these statutes the oath , and articles , whereupon juries were and are to make their presentments unto the admiral , all written with the same hand , the oath onely in old english , the articles in the same language , with the statutes which shew what things are enquirable and presentable before the admiral , and there punishable , and how and in what manner such offences are to be punished : out of which it i● easily and plainly to be gathered , that the admiral hath a full and compleat jurisdiction , exclusive to all others upon all ports , havens , and creeks of the sea. i shall here set down verbatim the oath to be administred unto the jury , and some few of those articles , which shew the admirals power and jurisdiction to be upon the ports and havens . the oath . this here see my lord the admiral that i john atte nashe shall well and truly enquere for our lord the king , and well and truly at this time thou serve at this court of th' admirate , present as moch as i have in knowleche , or may have by information of eny of all my fellows , of all mane articles or circonstances that touchen the courte of the admirate and law of the sea , the whiche shuld be grate to me at this time ; and i thereupon sworne and charged and of all other that may renewe in my minde , and ine shall for nothing lette , that is for to say , for franchise , lordship , kynreden , aliance , friendship , love , hatred , envye enemytee , for dred of lost of goodnee , for non other cause that i shall so doo the kings counseills , my fellows and myne owen wel and trewly hele what oute fraude or malengyn , , so god my help at the holydome , and by this book b . next unto this oath is set forth the punishment of the jurate that shall disclose the secrets of the king , or any of his fellow jurates , to be inflicted upon him by the admiral c . the very first and second articles to be given in charge are for theft committed upon any port or haven , and the punishment thereof set down . these are the words in the articles . soit d aequis des larrons es ports comē de cords batenlz autres ancres & autres appare●ls des nefs se nul est endite quil a felon neusement pris ung baten ou ancre que passe xxi d. il sera pendu sil est de ce convicte . it e se an cuy est endite quil a felon nensement pris ung boye , rope de quelle value quil soit & soit lie a ung autre dedens leave , pour la boye il sera pendu sil nest de ce aquite . and so f they proceed to set down the punishment of him that shall cut any cable , whereby the ship is cast away , or any man lose his life , &c. and g of such as shall remove an anchor . and likewise of such as shall rob strangers ships not being enemies . and h how their goods shall be restored to them , though they pursue not the felon to death . and i what course is to be taken in case of such robberies . petty larceny k is by that law punishable upon the first conviction , by forty dayes imprisonment ; upon the second , half a years imprisonment ; upon the third , death . by the next l article , common disturbers of ships and passengers , either upon the seas , or the ports , are to be enquired of , and their punishment is therein described . item soit en quis de touts communs malfaiseos sur la mer & en ports se acun homme est endite quil soit comun malefaiseur , il sera pris par ung caper par le mariscalt , &c. by m the next takers , that take and pay at pleasure , and so downwards . what n sureties shall be taken of such as shall be convict of misdemeanour . what o punishment shall be inflicted upon common fighters being convict . what p upon him that maimeth any other wilfully . in what case q the master of a ship is bound for the forth-coming of his mariners . the manner of out-lawing and banishing a felon that absenteth himself , and cannot be taken : and this law , as appeareth by the article , was made by henry the f●rst , which runneth thus : it en r temps du primier roy henry , & en temps de pluseurs roys devant de puis quant ung homme estoit endite en fellonnie l' admirall ou son lieutenant manderoit ung cape a l'admirall de la court ou au visconte de lu visconte aux second sessions quil restoit trouve & sera espace en tres deux sessions xxi . ovors ou plus il sera demaunde a la second session solempne lement , &c. and likewise the manner of out-lawing and banishing one that hath done any trespass upon any ship , tackle , or furniture thereof , &c. whether upon the seas , or upon any port , which law by the article appears to have been made by the same king henry the first , and his admiral of the north and west , and others of authority and power adjoyned to them . the law begins thus : item ſ gens quit sont banniz en trespass ne seront une banniz sinon par ung an ou deux , &c. se lon la discretion de l' admirall & sil est trouve en angleterre dedens le temps , il avara judgement comme devant est dit , & les biens du banny en trespass ne seront une forfeitz au roy comment , &c. and endeth thus : et ceste ordounare fuit faitte premieremet a gypswiz out temps du primer roy henry per les admiralz de north & west , & autres seigneurs adheirdantz . if ships be arrested for the kings service , or for any other reasonable cause by the kings officers or admiral , and break the arrest , the penalty is by these laws declared ; and this law wherein the penalty is declared , appeareth to be made in the time of richard the first at grimsby by the advice of most of the lords of the realm . the law begins thus : item t soit en quis de nefs qui sont arrestes pour le service du roy ou pour autre resonnable cause per les officers du roy ou de l' admirall & debrisent larrest . and afterwards it followeth thus : ordonne estoit en temps du roy richard le primier a grymsby per advys de pluseurs seigneurs du roylme que quant nefs seront arresters , &c. divers other things of the like nature are likewise enquirable in the admiralty court , the penalty and punishments whereof are declared by these laws . sir edward coke for proof that the admiral hath no jurisdiction upon the ports , amongst other things instanceth in one particular that hen. . , . an action was brought at the common law for forestalling in a port or haven ; because u it is infra corpus comitatûs , which is a thing taken for granted , but no ways proved at all , as is before w set forth : i shall therefore here set down two or three articles which shew that if by port be meant within the flood-mark in the havens , forestalling and regrating there , are within the cognizance of the admiral in the admiralty court ; the first is this . item soit enquis de touts merchants & mariners qui vont hors des ports aux nefs charges de marchandizes quant les dictes nefs voul droient enter ouz dits ports & les marchandises a chattent en gros & les amesnent aux ports & puis les vendent a greigneur et plus chier marche & plus que les preimer merchans vouldroient engrevance du commun peuple si aucun est endite en tel cas & convicte par xii il sera imprisonne per demy an & puis fera fin autant come les biens amsi a chattez amonterent maiz se la ditte nef sois repose dattendre son temps & homme a chate de lui marchandise en tel marne il ne serame dese impesh●e ne riens ne perdra vers le roy. x another against forestallers in any ship , is this : item soit enquis de tous ceulx quia chattent bledz poisson ou autres vitailles dedens la nef en regratant devant quilz soient venuz adeu marche se aucun est en ce endite , &c. it sera greissuousement pugny & fera fin au roy de tant y comme la value des bledz ou poisson amsi achattez a monte . another against regrators within the flood-mark is this ; item de ceulx qui achattent en gras bledz poisson sale , poisson freiz ou autre vitaille dedens le flodmarks en regratant , &c. aient mesme le z judgment . divers other articles are there expresly set down against several offences committed upon ports or havens , with the particular punishments to be inflicted upon such offenders , as against the exactions of a water-officers . against any mans appropriating to himself the benefit of b salt-waters . against kidles , wears and the like hinderance of the fishing , which is c common to all . against the false weights , false measure , and the like , used in any ship or d vessel . against erecting of mills , or adding or altering any thing about them , to the hinderance , hurt or damage of any port or e haven . against the taking up and concealing or keeping back from the possession of the admiral , any flotson , jetson or lagon found as well upon the ports , as upon the f seas . against the excessive wages of g ship-carpenters . all which do plainly shew that the admiral hath had , and ought to have absolutely power and jurisdiction of and over even such things , and in such causes as sir edward coke instanceth in , long before the times from whence he deduceth his authorities : and divers others of these articles to the same purpose i might instance in , which for brevities sake i omit . chap. xii . that by the inquisition taken at quinborough secundo aprilis anno ed. . annoque dom. . it is plain that the admiral hath jurisdiction upon the ports , as well as upon the high seas . edward the third by a solemn inquisition of divers persons most famous for skill in maritime matters and sea-faring businesses , selected and chosen from divers parts of the kingdome , and assembled at quinborough upon the second of april in the th year of his reign , anno dom . set down certain laws concerning the admiralty court and seafaring matters in old french , all which are yet extant in the old authentique black book of the admiralty before mentioned . i shall only set down what doth shew the jurisdiction of the admiral to be upon the ports and havens ; the inquisition first setteth forth who was then warden of the cinque-ports , who lord admiral , and who were the inquisitors , in these words . cest l' inquisition pris a quenesburgh per commandement de nostre sieur roy edward le tiers puis la conquest d' angleterre la d jour dauril , lan de son regne quarante & neu●me devant william sire de latymer chamberlain d' angleterre & gardenn des aul ports , & mr. william de nevill admirall de nostre dit sur le roy es parties du north pour mettre en certam les points apres ascriptz en maner comme ilzont este usez doncien temps par les surementz de robert loundeneys , robert , henry , & william passelewe de wychelsey , & symon colerede de boure , thomas moys de sandwitz , bartheu stigan de standford , john martyn de grenewiz , thomas hering & richard thebande de gravesend , & john burgeys leisne , & john burgeys a puisne de fobbing , hammond lovetost , & john snell de bellingham , thomas spring de remham , thomas rame & richard lyne , william jankyn & richard lorbyn de queneburgh pour mesmes le points de sor mais tenir firmement & continuer selon le voier dit apres a escript . so that by this last clause it appeareth that these laws were thenceforth to be firmly held and continued ; which do thus present themselves . et primier dient les avant ditz furer per●es serements que se , &c. it is plain by the ordinance , that if a mariner do hire himself to a master of a ship , in any port or haven , and shall afterwards , before the ship goeth out of the haven on her voyage , forsake and leave her , he shall be punished by the admiral . the law runneth thus : item que touts b maners de mariners que sont retenuz avec aucun seigneur de nef pour liu servir a bordeaulx au ailleurs pur rainsonnable salaire ainsi comme a este use en divers ports par tout le royalme , &c. & se aucun manner se voide daucun e nef en tel cas il sera gre vosement amerciez selon la discretion de l' admiral & fera gre au posseseur de la nef . hereby it is manifest that the admiral hath jurisdiction upon the ports , otherwise he could not punish the mariner for his forsaking the ship there before her going to sea . and the case is the like in respect of the payment of lodmanage , which being a thing proper to a port or haven , is , according to the laws of oleron , to be decided by the admiral , as hath been already c shewed , is by these laws again appointed in these words . item endroit lodemanage dient les avant ditz jurez que leur semble in cest cas elz ne scavent meilleur advys ne remedie mais que ce soit de sorce usez , &c. fait par main'e quest continue en la loyd ' d oleron . and these were established for laws , against which if any do offend , the admiral doth justice in such manner , that others may be thereby warned not to offend against them , as appeareth by the last of them , which saith thus . item ordonne estoit que ce aucune nef biens merchandises , &c. and concludeth with this clause . et se aucumy soit trouve rebelle encontre aucun des ditz pointz quil soit ainsi justise & constraint per l' admiral quantres y prengnout exemple de luy & redoublet le plus datempler ou aler en contre cest ordonnance ou aucun point contenue en e icells . here unto these laws and ordinance are likewise , as unto the antient statutes of the admiralty before mentioned , adjoyned divers articles , inquirable , presentable , and punishable in the admiralty court , many of which , as did the others , do plainly shew that the admiral hath jurisdiction upon the ports and havens . some of them here i shall likewise set down . it soit enquis de tous petites , fellonies , emblants en ports , ou sur la mer dedens nefs ou batealx or ou argent ou de brusent coffres & emportant ce qui est dedens icelles ou emblest amrous ancres ou autres apperilz de nefs ou bateaulx ou emblet ou coupent sur la mer rees ou levant taws . other articles i find here as in the former , to enquire of such as found either waifs , flotson , jetson , or lagon , viz. either ships , vessels or boats of any sort whatsoever upon the seas , or sea-ports , forsaken and lost by the owners , goods lost by shipwrack , and found floating or swimming upon the top of the waters ; goods cast out of a ship being in danger of wreck , and beaten to the shore by the waters , or cast on the shore by the mariners ; or goods lying in the bottom of the sea , or port , there likewise left and lost by the owners , as f iron , gold , silver , anchors , &c. whereof the admiral hath not had his share . here likewise ( as of all the former ) is contained that article against weirs , kidles , blind-stake , water-mills , &c. which do an noy the great streams , and channels of havens or ports ; which followeth in these words . item g soit enquis de tous ceulx qui foustinent sur les . gros streams & channels des havens ou ports , weres , kedylles , blindstakes , watermilles ou autres instruments en aueant ance des ports per les quelz nefs ou batean out este periz ou homme mort . amongst these articles also , one enquireth of such as have found any one dead upon the sea , or in any ports within the jurisdiction of the admiralty , and hath found upon him any gold , silver , jewel , or any other commodity of value , and hath not rendred it to the admiral , or his lieutenant , as a deodand . item h soit enquis de ceulx qui ont trouve sur aucun homme mort trouve sur la mer , ou en ports dedens le jurisdiction de admiralte or , argent ou autre jovell ou chose de value & le navy rend a l' admirall ou son lieutenant comme●dedant car ce appertient a l' admiral pour disposer pour lame de homme mort . by these i articles are likewise to be enquired of the death of a man in any ship , vessel , or boat , &c. and of the maime , sheding of blood , within the jurisdiction of the admiralty , and divers other such like matters , &c. and so for k ships , barges and ballengers arrested for the voyages of the king or admiral ; and breach of the arrests , and the like for mariners . by these articles likewise are to be enquired of all such as do drag for oysters , muscles , &c. in unseasonable times , and such as do destroy the fry l of fish , and of such mariners as do violence to the owner of the ship , contrary to the laws of the sea , and statutes of oleron ; such mariners as disobey the lawfull commands of their master ; such masters as keep not their mariners in order and peace according to the laws of oleron , and likewise of m loads-men and loads-manage . and here particularly is to be enquired of such as do claim propriety in any port or haven , which belongeth unto the king , without charter , or prescription to the disinheritance of the king. item soit enquis se aucun clame properte en port ou commers qui attient a ●●stre sur le roy & ne la my par chartre ou praescription en disheritance du n roy. and in this respect as well as others , is the admiral called custos portuum , & custos o maritimarum partium , &c. here again , as by the former articles , are forestallers and regraters , as is before mentioned , to be enquired of p ; and so are weights and measures , and the abuses of water officers q . by another article here are fishermen to be enquired of , which take salmons out of season in any arme of the sea , as thames , trent , &c. specifying some particular arms of the sea , and concluding withall in general , so that by arms of the sea in these laws exprest , ports and havens must needs be meant ; the same things which sir edward coke under the same notion would have to be within the bodies of counties , and out of the jurisdiction of the admiralty ; which we see plainly did thereunto belong in far more ancient times , then any of his proofs and authorities are of to the contrary ; and these are the words of the article . item r soit enquis de poissonners que prennent saulmons bors de saison aux bras de mer cestassavoir thames , trent , deve , derwent , agre , reme , humbre , & autres riviers q'l conq's ou destroint fry de saulmont en aucun temps de lau . for any one to remove an ſ anchor of any ship or vessel without warning given to the master or some of his company , by which means the ship doth perish , or any man is slain , or cut the boy from the boy-rope , so that the anchor is lost , are offences against the laws of oleron , presentable before the admiral , or his lieutenant , and punishable according to those laws . here likewise is an article agreeable with the former , amongst those adjoyned unto the old statutes concerning t shipwrights wages . divers other articles there be which concern other matters belonging to the jurisdiction of the admiralty , some of which might have been likewise deduced into proof for the admirals jurisdiction upon the ports ; but i conceive these will be sufficient to convince any indifferent man that he had jurisdiction there in edward the thirds time , and by those that are adjoyned to the ancient statutes of the admiralty , and introduction of the laws of oleron , it will appear that he had jurisdiction there long before . unto these articles are joyned several admonitions drawn into several articles , for the due observance of these articles , and putting them in u execution . and next unto them is set forth the manner of proceeding according to the maritime laws , both in causes civil and criminal . chap. xiii . that by the aucient statutes of enquiry , translated out of french into latine , by rowghton , the admirals jurisdiction is upon the ports and havens , aswell as over the high seas . welwood in his proeme to his abridgement of the sea laws maketh mention of the inquisition taken by most famous persons for skill in seafaring matters assembled at quinborough , and the articles there agreed on , out of which i have cited some in the foregoing chapter ; and he saith , that thomas roughton afterwards turned them into latine , and entitled them articles de officio admiralitatis angliae . but i do not find that the articles which roughton translated out of french into latine were the articles agreed on at quinborough ; for the articles of quinborough set not down the penalties upon the breach of every particular article ( but referre the punishment to the former ancient statutes and articles of the admiralty , and the laws of oleron ) whereas those translated by roughton do ; besides at the inquision of quinborough , there were by those exquisite skilfull men in maritime businesses both at home and abroad , several sea laws or statutes agreed on , and by the king confirmed , which i find not translated by roughton , where he averreth such his translation of articles out of the french tongue into the latine , and calleth them statutes , in regard the penalty of all or most of them are therein determined and appointed , which his averrement is in these words at the end thereof ; haec statuta fuerunt translata per me a thomam roughton à linguâ gallicanâ in latinam , signum meum manuale in testimonium ejusdem hic apponendo . now in this averrement there is no mention of the articles of quinborough , besides those ; and these agree not in method , nor in number . nor are these the translation of those ancient articles adjoyned unto the ancient statutes of the admiralty ( which have the penalty upon the breach of every of them set down in them , as these have ) for they have neither the same method , nor the same division , these being divided into articles , those but into . yet are not these articles in any one particular contrariant or repugnant one unto another ; but so agreeable in matter of substance , that that agreement amongst them may stand for a true confirmation , and a strong corroboration both of the justice , equity and authority they carry along with them , and also of the credit that is to be given to them . they all so agreeing ( as i have said ) these must needs prove the same thing that the others have done , namely the b admirals jurisdiction to be upon the ports and havens . i shall set down some few of these in their own language , to shew this agreement , and so pass to a yet further proof of this particular . but i shall first observe that as heretofore b i have shewed that the admirals anciently have had joyned unto their patents for that place whereof they were admirals , a special precept to all sheriffs , mayors , bayliffs , constables , headboroughs , &c. commanding them to be obedient unto the admiral and his lieutenants , and to be aiding and assisting unto them when they should be thereunto required ; so by the front of these articles or statutes the admiral is directed to grant his warrant to the bayliffs of the port ( if it be a liberty ) as well as to his marshall for the summoning of a jury to make enquiry ( according to these articles ) of all such offences as are committed contrary thereunto ; which articles are there said to concern the maritime law ; and these are the words of that direction . inprimis c cum veneris ad portum per costeras maris , si sit in villâ quae habet libertatem , fiat warrantum mariscallo curiae ac ballivis libertatis quod venire faciant xxiiij . probos & legales de viceneto illo , viz mercatores & marinarios , & alios per quos rei veritas melius sciri poterit & inquiri , ad inquirendum in curiâ admiralli certis tida d & loco tenenda per eorum sacramentum fideliter praestandum , quicquid eis constare poterit super certis articulis legem maritimam tangentibus , super quibus erant ad tunc onerati pariter & jurati . and the penalties of the breach of articles first mentioned are as these are , in case the party be convict , and that by express words , sil est de ce convicte , &c. as will appear by some of those i have before cited , e and as will here appear by some of those i am about to cite , si indictatus & convictus . whence i gather that which will clearly overthrow the very foundation whereon many of sir edward cokes arguments are grounded , viz. that wherean inquiry may be made by jury , there the admiral hath no jurisdiction , which we plainly see is not so . the first of these articles with a nota , is the same with that which precedeth the first mentioned articles , which is against such as shall discover the kings counsel , or his fellow-jurats ; and the penalty is the same here with that there , which is a very terrible punishment ( but i am not about to set forth what the penalty or punishment of the breach of every article is ) it is enough for my purpose , that the articles do some of them plainly shew that the admiralty jurisdiction is not limited to the high seas , as sir edward coke would have it , and that by this first article as well as by many more : for certainly whether a jurate doth disclose the kings counsell , or his fellows either at sea or land , or upon port or haven in these maritime matters , it is inquirable in the admiralty court , and there punishable ; for it is a ridiculous thing to set a penalty or punishment different from all punishments of the common law ( as this is ) upon any offence , and not to have power to inflict it upon the party so offending , unless he go to the sea to disclose and discover that whch he hath already done , or might have done at land . and this likewise will check the opinion of those that hold that whatsoever is done at land , howsoever it concern maritime affairs , is cognoscible at the common law , and not in the admiralty : but of that in its due place . i shall here only set down ( as i said before ) some few of those articles , which shew the admiralty jurisdiction to be upon the ports , and are agreeable with the former which i have before mentioned . the sixth article doth enquire of such as have taken up any weife , jetson , flotson , or lagon out of the sea , or any great river , and have not satisfied the admiral for his share , this is punishable , though it were weife , jetson , flotson , or lagon in any great river or port. the words of the article are these . inquiratur si quis reperit super mare sive in grossis rivis , naves , ferrum , plumbum , seu aliqua alia bona fluctuantia , vel in profundo jacentia , quorum nemo est possessor , quae vulgariter appellantur flotteson , jetteson , lagon , & domino admirallo non satisfecit pro parte , dominum admirallum contingente , viz. de medietate ; qui secus fecerit , si super hoe indictatus & convictus fuerit , &c. partem suam amittit nichilominus cum admirallo secundum discretionem suam finem in hac parte faciendo ad valentiam bonorum g inventorum . the seventh article inquireth of mills , kiddles , or other things in the sea , or great rivers , hurtfull to ships or navigation , and how the causers of them are to be punished : the article runneth thus . inquiratur h si quis in grossis rivis levavit molendina , kydell , seu aliqua alia instrumenta quae navigantibus seu navibus communiter sunt nociva . quod si de hujusmodi molendinis , kydellis , aut instrumentis , in nocumentum ut praefertur scituatis , domino admirallo per inquisitionem constiterit extrahi dēant penitus , & destrui transgressores , qui in hoc casu super hoc finem cum domino admirallo facturi sunt . the tenth article is against such as being arrested to serve the king , break the arrest , who surely are both arrested , and do break the arrest either at land or upon the port , and not upon the high seas , and how such are to be punished : which the article sheweth thus . inquiratur i si arrestatus ad serviend . regi fregit arrestum , hujusmodi transgressor stat in gratiâ regiâ sive admiralli sui utrum voluerint committere carceribus mancipandum vel finem facere , in hac parte , si arrestum hujusmodi factum manifestum fuerit cognitum . the twelfth articles is against such as do take oysters and muscles in prohibited times of the year , and such as do at any time of the year fish with nets of too narrow a mash in great rivers , and destroy small salmons , and other fry of fish , who are to be punished as this article sheweth . inquiratur k de his qui capiunt ostria seu musculos inter primum diem maii , & festum exaltationis sanctae crucis , & etiam de his qui quocunque tempore anni per retia nimis stricta in grossis rivis deflruunt salmunculos , seu alios pisces nimis juvenes ; omnes isti in hac parte indictati sive officio admiralli detecti , sive aliqualiter accusati , finem facient secundum discretionem admiralli , &c. the fourteenth article doth most manifestly shew the admirals jurisdiction upon the ports and havens ; for it setteth forth the punishment of such as do hinder or resist the admiral , or his lieutenant , freely to determine , decide , correct , and put in execution all transgressions , batteries , felonies , and other causes whatsoever happening upon the sea , or upon whatsoever rivers , waters , or rivolets of the sea unto the first bridge , according to the custome and law maritime , in these words . inquiratur l de his qui impediunt , vel resistunt domino admirallo ; seu ejus locum tenenti , batterias , felonias , & alias causas quascunque super mare & infra quoscunque rivos , aquas , sive riviculos maris usque ad primum pontem emergentes , terminare , decidere , corrigere & executioni demandare libere possunt , quia omnes isti sunt rebelles , & tanquam rebelles sunt puniendi . the sixteenth article is against forestallers in ports and havens , and setteth the penalty and punishment of such offenders , and in what case such shall be freed : thus . inquiratur m de his , qui ingressu portûs , vel infra portum forinstallant & emunt victualia in grosso , ad damnum comitatus vicinum , indictatus super hoc & convictus , &c. imprisonamentum , dimidii anni habebit , praeterea finem faciet domino admirallo ad valentiam bonorum hujusmodi . si tamen naves cum hujusmodi merchandizis sive victualibus vento contrario reluctante impeditae , ventum expectent faventem , emptores hujusmodi rerum sive victualium ab omni impeditione in hac parte erunt immunes , & nichil domino regi , aut admirallo perdent , nec amittent . many articles more there are which do enquire of offences committed , and punishments proper for them , which are such penalties and punishments as are not used at the common law ; i shall but only name the chiefest of them . there be articles against stealing , n , cutting off , or carrying away the buoys fixed to an anchor , whereby the ship doth perish , or is made worse , which is punished by the law of the sea with a punishment different from that of the common law. against o carpenters and other artificers imployed about making or repairing of ships , for taking excessive wages . against such as cast p sand , ballast , or any other thing into the channel of a port or haven . against a q loadsman that undertaketh to bring a ship safe through the haven to the key or place of discharge , and through his ignorance , idleness , negligence , or other fault suffereth the ship or merchandises to perish , the punishment is such as is not used at the common law. against such as that r strike , wound , draw blood , make any fray , or kill any man within the jurisdiction of the admiralty , they are to be punished according to the quantity and quality of the offence . against ſ regraters , such as use false weights , and false measures in their ships for buying and selling by in the ports and havens . against such as take t extraordinary portage in any haven , and the article setteth down what portage is to be paid by ships of such a burthen , &c. against u port-keepers and water-bayliffs that raise new customes and excessive fees within the port or haven , &c. against w ships and men appointed to serve the king , and avoid the service . against such as shall cut any x cables , &c. against y felonies done in foreigners ships , and other ships upon the sea-ports and havens ; and against such as shall remove any anchor . against z notorious malefactors , either upon the sea or ports . against a such as have taken and concealed any deodand upon the sea , port , or haven . to conclude , the admiralty is so farre from being limited to the cognizance of things done upon the high seas , that it is not so much as limited to things done upon sea and sea-ports , but the power and authority thereof is , and of ancient times hath been extended to all such things as do belong unto the seas , ports , havens , and salt-waters , as will appear by the th article , which is this . item b inquiratur de his qui colligunt in sossat . aquam salsam , & faciunt sibi piscarias , scituantes & de novo facientes & incipientes gurgites , aut alia sibi nccīa immobilia , percipientes exitus & proficua eorundem ad eorum opus proprium & quae in aquâ salsa omnibus debent esse communia , poena si indictati fuerint vel impetiti , poenam ordinationis regis johannis apud hastings subituri sunt : &c. and this article further sheweth , that such things as these which concern or belong to ports or havens , did in king johns time belong to the cognizance of the admiralty . and now i shall proceed unto such proofs as i have gathered from the civil ●aw in confirmation of what i have gathered from other a●tiquity : but i must first shew that that law is used and practised in other nations , being a thing by some strongly denyed . chap. xiv . that the civil law is used and practised in all or most nations of christendome . i have heard ( but am unwilling to believe it ) that some have strangely dreamt , and as strangely fancied that dream to be true , that the civil law is not received , nor of any use at all in forreign nations , but the same hath been years since abolished : but i doubt not but that when their judgements are awaked , and better informed , they will find the same to be but a dream , and will easily be perswaded not to persist in such an error unreformed , which i will more willingly term to be but a mistake , for that the same may in part be understood to be true , and the other part from thence miscollected ; for the city of rome was no sooner built then it had civil laws , and sanctiones ordained , constituted and appointed for the government thereof , which in many hundred years were , and in many more several emperours reigns , by them altered , augmented , and encreased , which were by warres and turmoyls about the time before mentioned ( and long before justinians reduction of them into method and order , and compiling them into a body ) much distracted and perplexed , or rather laid aside , and as it were destroyed , and lost , which makes justinian himself in his edict of confirmation of his digests , say , post bella c parthica aeterna pace sopita , postque vandalicam gentem ereptam & carthaginem , imo magis omnem lybiam romano imperio iterum sociatam , & leges antiquas jam senio praegravatas per nostram vigilantiam praebuit in novam pulchritudinem & moderatum pervenire compendium : so that it seemeth these old civil laws with their age and perplexities of warres , which do silence laws , were praegravatae , even suppressed , or crushed down , which some perhaps may terme an utter abolition , and not without cause , when as justinian himself in the same place , speaking of this reduction of them , quod nemo antea hoc superavit d neque humano ingenio possible esse penitus existimavit ; that no man ( before he saw it done ) did ever hope for , or humane reason seriously think it possible : for that it was marvellous that the roman law , which began with the city it self , which had by the intestine warres there for almost fourteen hundred years been staggered , and shaken , and that extending unto the imperial constitution , they could be reduced unto one consonancy or agreement . erat enim mirabile romanam sancionem e ab urbe conditâ usque ad nostri imperii tempora , quae pene in mille & qu●dringentos annos concurrunt intestinis praeliis vacillantem , hocque & in imperiales constitutiones extendentem , in unam reducere consonantiam . and from this suppression , or laying aside of these ancient roman laws , some it seemeth have miscollected , and unduly concluded , that the same hath never since been received or made use of in any forreign nation at all . but this new moulding , reducing , and with so much pains , labour and care , digesting of those ancient laws into method , form , and order , and compiling them into a body , plainly sheweth the contrary , unless we will believe all this was done to no purpose . and if it shall be said that these laws thus digested , and brought into forme and method , have since such their reduction ( which was after the time of the twelve hundred years before mentioned for their being abolished ) been again suppressed , born down , or abolished , and not received in any forraign nation to this day : what shall we say of the printing and so often reprinting of this large body of the law , since printing was first invented , which was but odd years agone ? next what shall we say of the so late reprinting this large body with the gloss and case , and other notes upon the same , with the large index thereunto , in all consisting of six large volumns in folio , some printed in one country , and some in another ; some printted within these thirty years , some within a shorter time ? or what shall we say of the several authors of most , if not of all the several nations of christendome , which have in all the several centuries of years since the compiling of this body , even unto this time , wrote and commented upon the same , some on one part , some on another ; and of all those other authors of all or most several nations , which have wrote several tractates of decisions and other law-books , which do ground and raise their authority from this body of the law , and quote the same for proof of whatsoever they determine ? shall we say that all this from time to time continued study , industry , labour and pains hath been taken , and all this cost , charge , and vast expence laid out to no end , for no use or purpose ? or shall we say all this is done only to mock the world ? certainly he that shall say either , will but mock himself , and such as will believe him ; but he can never deceive any one that hath but once seen the inside of a civilian's study , either at home or abroad ; for both are the same , and furnished with books of the same nature and kind ; and all lawyers or practisers in the laws , in all parts of christendome are civilians , and do study and take their degrees in the civil law , as the civilians do here , and do proceed in all causes for the most part according to the course and directions set down in the civil law , and are regulated and guided in all their determinations and judgements by that law , saving that in several nations they have several municipal laws , acts , or edicts published , and declared amongst themselves for the regulating their own particular government , which are binding unto no others , nor observable in any other nation , then that wherein they were constituted and ordained , and that in land businesses , and not in maritime and sea affairs , wherein several nations by reason of their trade and traffique eath with other , are concerned , and must have their differences which happen between them determined by one and the same law , which is principally the civil law , though some other maritime laws , which receive their ground and foundation from the same , are therewith practised ; by which all differences likewise happening and arising between nation and nation , are to be regulated and determined , it being now generally received as the law of nations , although at the time of its being compiled into a body , justinian himself distinguished it both from that law of nations , and from the law of nature . and for other municipal laws , one nation will not subject it self unto a municipal law framed and constituted by an other , they being in some sort different each from other , though both derived from one and the same principal law , and are neither so many as the statute laws of this land , nor so much different from the civil law it self as our statute laws are from our ancient fundamental common laws : for indeed the body of the civil law being so ample , large , perfect , and compleat in it self , for decision of all controversies of what nature soever , arising between persons of what quality or condition soever ; the several municipall laws of those several countries , are only some wayes confirmatory or explanatory thereof ; or sometimes extending , or sometimes limiting the same ; but seldome or never contrariant or repugnant thereunto , or much differing therefrom ; unless it be in the manner of punishment , or the like ; and sometimes , and in some places they are no other then the very same abreviated or shortned , and made in affirmance of them , and have their ground from them , as some of our statutes here have from the common law. nay , those very proceedings , and determinations of controversies in the parliament of france ( which many have thought most to differ from the proceedings and determinations of the civil law ) are notwithstanding plainly agreeable thereunto , and grounded thereon ; nay , the very name , constitution and authority thereof , are all derived from the civil law , as doth plainly appear by that which johannes montanus concerning the authority of that great councel , hath wrote , as likewise by the additions made thereunto by boerius that country-man , not much above years since , where it appeareth that the very name parliament , whereby this great councel is called , is derived from the civil law ; bartol f an ancient commentatour upon that law being there cited , upon three several places thereof , for having or using the word parliamentum in the same sence the same is used in france , and where likewise divers other civil law authors are cited to the same purpose g . and bartol is likewise cited for that he alloweth no prince to hold a parliament , that acknowledgeth a superiour . princeps h non potest habere parliamentum , si superiorem recognoscat . and likewise boerius proceedeth to the setting forth the use of this parliament , namely for the profit of the people , ubi i super aliquo oportet provideri pro utilitate totius provinciae , praeses debet facere congregare generale concilium seu parliamentum , ut super dubio proposito , sanum & utile concilium exhibeatur . and it is there compared to the roman assembly , much mentioned in the civil laws k et parliamentum potest dici coetus , cujus nomen tractum est ex more romano , taking rise and example from that glorious assembly of the palace of rome , mentioned in the code of the civil law. l id ab omnibus antea proceribus nostri palatii quam gloriosissimo coetu nostro &c. it is likewise called the parliament of paris , and it is there said to be called m parliamentum parisiense , quasi parium lamentum , quia pares franciae , qui sunt de numero ipsius , querelas & planctus audiunt , de quo mentionem facit paul. de n castr . in consil . . vol. antiq . and it is there likewise said to be called curia suprema , o or curia judicum maximorum juxta authen . de consulibus sect. si autem mediocre , & tunc dicitur curia , secundum eum , id est cura vel cultura juris , so that it is said to be the very sollicitude , care , or study of the civil law ; or the very tilling , dressing , or trimming thereof . and this great court at first constituted by king pipin , consisted ex quatuor p viginti consiliariis computatis praesidentibus eisd . & per conclavia , ( quae cameras appellant ) distributis . and after other additions made thereunto by charles the great , son of the said king pipin ; adjuncti praeterea fuerunt praedicto corpori octo magistri requestarum , domus regiae , ut sic centenarum judicum numerum tenens , illius senatus effigiem haberet quem romulus romanorum regum primarius ut rei-publice consulerent , creavit . there were furthermore adjoyned unto this body eight masters of requests of the kings house , that it keeping the number of an hundred judges , it might have the effigies or forme of that senate romulus the first king of the romans constituted to counsel the common-wealth . nay , the dignity , the precedency , and placing of the counsellors of this great councell , is derived from the authority of the civil law , as is plainly set forth in the said montanus upon the authority of the parliament of france , and boerius his additions thereon , who both quote the civil law for the same ; and so is likewise the very authority of the councel from thence derived , as by the said authors doth likewise appear . and shall we now say that this great court or councell , and the very order and authority thereof was thus framed and constituted by the rules and directions of the civil law , and say , conceive or think , that their judgements and determinations of controversies , &c. there given and made , are not according and agreeable to the same law ? if i should here endeavour to set forth those several authors and writers upon the civil law , which have as i said before , in the several nations of christendome , in all the several ages and centuries of years which have been ever since the compiling that body , even unto this time , written and commented thereon , and those which have wrote the decisions , determinations , judgements , objections , and other law books grounded upon the same , and which cite them for their authority and proof of what they conclude , i should extend this chapter to a whole book or volumne , and but shew the civilian , and such as have been verst in law libraries , what they have seen already , and but tell others of those things which they will neither search for , nor endeavour to see : and i am afraid i have too farre already deviated from my intended port of discharge of the discourse i in this book entred upon ; which was to prove the ports and havens of the sea to be within the jurisdiction of the admiralty ; but before i can return to steer a right course thither , it will be necessary , first to shew that the civil law is likewise necessarily practised , used and exercised in all admiralty courts , and there binding , and of authority to direct the determinations , sentences and judgements decisorie in maritime and sea affairs , between party and patty , be they forreigners or others ; and then to shew that by those laws so exercised and practised in those cours , as well as by the other laws already set forth , it doth appear that the ports and havens , and all things done thereou are within the jurisdiction of the admiralty . chap. xv. that the traffique and sea-trading is different from the bargaining and trading at land ; and that therefore in all forreign natious they have their distinct judicatories guided by distinct laws , and that though the judicatories for land affairs have in divers nations divers municipal laws mixed with the civil law , yet the civil law is strictly used and practised in all admiralty courts , and is absolutely necessary in the decision of all maritime and sea differences . such as were apt to believe that the civil law was , and is abolished in all forreign parts , and no use made thereof , in the rule and governance of land affairs , would very hardly ( without the removal of that misapprehension ) have been perswaded that the same was of any use in their admiraly courts in sea businesses . i must therefore in the next place shew that he which understandeth only the rhodian laws , the laws of oleron , and the inquisitions and statutes before mentioned ( which the civilian must needs most perfectly do , the first being a great part thereof inserted in the very body of the civil law , and the other from thence derived ) cannot without much reading and knowledge in other parts of that law , be sufficiently able to manage the pleadings and arguing of all maritime causes arising in admiralty courts between party and party , and between the supreme authority , and those that are employed by that authority , and such as are in subjection to the same , much less to judge and determine such causes therein according to law and justice . for justice which ruleth and swayeth the secular regimen or government of all or most kingdomes and common-wealths of christendome , whereby men are made happy in possessing and enjoying their own , and defending themselves against wrongs and injuries offered by others , hath two wings , duas volatiles habet alas , she hath two wings wherewith she soars aloft , and stretcheth her self unto , and spreadeth her self over both sea and land , she hath two jurisdictions , the one fitted with laws most apt and proper for distributing of right in all land businesses , the other furnished with laws most meet and convenient for the dispensing of equity in all maritime and sea affairs ; and yet how different and distinct soever these two jurisdictions are each from other ( as i have set forth more at large in the a first chapter of this second book ) yet do both these wings of justice in all forreign nations spring and proceed from one and the same body of the civil law , and are from thence furnished and fitted with different and distinct laws , whereby they keep up , and carry justice upright between them both ; and by the one extendeth her directions unto the business of the land , and by the other reacheth forth her proceed and effects unto the affairs of the sea . which two wings , if taken off , justice must needs fall flat to the ground , and can by no other means so expand her self , as to extend either her directions unto the one , or reach forth such her effects unto the other ; secundis alitibus procedere nequit , she cannot go on prosperously or happily to execute or performe her own proper office , either upon the one , or upon the other . nay , if either of these two wings should be taken off , or but joynted , implumed , or bereaved of those feathers nature at first gave it , though the other should be preserved , and kept never so compleat and perfect , yet could justice by the perfection of that one wing , but hover and heave her self upwards on one side , whilst the defect in the other would pull her downwards ; and the one side falling to the ground , the other must necessarily follow . if the power and privileges of either of these jurisdictions should be decayed , or but impaired , though the other should be left never so entire , yet could not the effects of justice in the one supply the defects in the other : for the laws of the land are no more fit to regulate the affairs of the sea , nor the laws of the sea any more apt to rule the business of the land , then a horse is fit for a sea voyage , or a ship for a land journey . and then cannot justice be said to be her self , whilest she shall do right in one thing , and wrong in another ; or whilest she should render that which is just in one matter , when it is required , and can afford no help at all in another when it is expected . justice saith cicero , est habitus animi ( communi utilitate servatâ ) suum cuique tribuens ; justice doth every man right , still preserving the common good . i will not here say how slowly justice hath oftentimes put right forwards , and as it were but soared in a circle , by one wings striving to out-fly the other . but here i will say , that he that will make most haste to his journeys end , and setteth his best leg forward , if that leg shall not cease to kick the other for making no more haste , or shall by that or such other means lame it , because it self would get both the credit and profit of the journey , that leg must necessarily but hop instead of running , or walking , and cannot come so soon to its journey's end , if ever it come there . and one leg being lamed , if the crutch that should supply it , be applyed unto the other that is not lame , the body will walk no whit the better ; and if one wing be pluckt , and those feathers imped into , or added unto the other , the bird will fly no whit the faster . if one of these two jurisdictions ( the two wings which justice hath to support her self ) should be bereaved of its power and proper priviledges , though the same should be taken and assumed unto the other which enjoyeth all its own before , justice could proceed no whit more duly , but much more prejudiciously to some or other . for as i said before , the laws of the sea are so different from the laws of the land , that they will not serve to each others purpose . and indeed they must necessarily so be ; for the traffique and commerce in maritime affairs by transportation at sea , is in its own nature as different from the trade of bargaining and chaffering in land businesses as is the fluid element of water from the solid element of earth : for as the water doth admit of some mixture of the earth , and yet still remaineth water ; and the earth doth admit of some mixture of water , and yet remaineth earth , though not in their absolute purity , yet in such sort , as that the one may properly enough be termed water , and the other earth . in like manner doth the trafficking , and commerce in merchandizing affairs , admit in some sort of the like covenanting and contracting as the land trade and bargaining doth ; but yet remaineth a seafaring traffick , and commerce , and the land-trade and bargaining doth likewise in some sort admit of the like bartering and exchanging of goods and commodities , as the traffiick and commerce in merchandizing affairs doth , but yet remaineth a land bargain . in the same manner do the laws , which regulate the one , and the laws which rule and dispose the other , admit of some mixture each with other , both in respect of their manner of proceedings to judgement , and sometimes in regard of their concurrency in the judgement it self , where the nature of the causes differs not ; and yet the one remaineth the maritime law , or law of the sea , and the other the law of the land. now if of these two different elements of water and earth , ( whereunto i have resembled the difference between the traffick and commerce in merchandizing affairs by sea , and the laws thereunto belonging , and the land trade and laws which concern the same ) there should be such an equal mixture , that the same could neither be said to be water nor earth , but a mixt body equally composed of both , then would the same be fit for neither man nor beast to walk or tread on , nor ship or other vessel to float or sayl on . in like manner if these laws purposely composed for the decision of maritime controversies , and the laws established for determination of land differences should be promiscuously applyed to the decision , or used for the determination of both , and by that means such a mixture thereof made , that the same could neither be termed the laws of the sea , nor the laws of the land , then would the same neither serve for the government of the one , nor the other . for although the seafaring commerce and land-trade have some resemblance ( as i have said ) in respect of the like contracting and bartering ; yet are the goods and wares so bartered and contracted for , by way of merchandizing of various sorts , and the lading and stowing of them in ships done , or to be done , after many various manners and wayes according to the nature of them , and many differences there are in the manner of the master of the ship , or skippers acceptance of them , according to the condition and quality of the goods so received and acknowledged by his bills of lading , and severall are the consignments made of them , the same being sometimes laden by factours , and consigned to their principals for their own proper use and accompt : sometimes for the accompt of their correspondents , &c. and likewise much variety and difference is there , in hyring and taking of ships , and vessels to freight for the transportation of such goods , wares and merchandizes ; the merchants having sometimes ships and vessels of their own , which they sometimes freight wholly themselves , sometimes joyntly with others : sometimes the merchant hyreth or taketh a ship , or vessel to freight , which hath sometimes but one , sometimes many owners : sometimes he taketh her to freight of the owner , sometimes of the master appointed over her by the owners : sometimes he hyreth her by the moneth , sometimes for a whole voyage ; which voyage is sometimes from one port unto another , from that to a second , and so to a third , &c. and sometimes the ship maketh no port , but is lost , or perished , sometimes in the high sea , sometimes in the port or haven out of which she is to set sail , sometime in the port or haven of her discharge : sometimes she maketh one port , sometimes two , sometimes more , and yet is cast away before she come to her last port of discharge ; sometimes in the same . sometimes such goods and merchandizes are damnified through the wastfulness of the master , sometimes of the mariners , sometimes through their carelesness in stowage of them , sometimes by reason of ill packing or making them up , or putting such as are liquid in ill or leakie casks , &c. sometimes they are damnified by storm or tempest , or stress of weather , which is sometimes such , as that the master is constrained to cast over board divers of the goods for preservation of the rest , and saving both ship and men's lives , and sometimes he is constrained to cut down the masts of his ship , as hath been b said before , in this second book . sometimes they are damnified in the lading of them , sometimes in the unlading of them , sometimes in the ship , sometimes in the lighter , &c. sometimes they are damnified by one ship or vessel falling fowl on another , and that sometimes by the negligence or carelesness of the master or mariners of either of them , sometimes of both ; sometimes of neither , but through the extreamity of the weather , or through the darkness of the season , happening either by mist , or night , &c. which could not be helped or prevented by either the care or diligence of the masters , or their mariners : sometimes the ship by such means is damnnified onely , and not the goods : sometimes the goods , and not the ship : sometimes both ship and goods : sometimes the like falleth out for want of a pylot : sometimes through the ignorance and unskilfulness of such pylot , &c. i might here instance in very many more particulars , wherein this commerce which consisteth in shipping and merchandizing voyages and affairs doth differ from other trades used and occupied in land business , those being farre more perillous and dangerous then these , and being likewise far more subject to depredations , pyratical robberies and spoils then these . all which differences must needs introduce a law , for the regulating the various and divers controversies that must needs arise by reason thereof , farre different and distinct from that law , which ruleth and guideth the determinations of such controversies and debates which happen in land businesses , not subject to such or the like casualties , dangers and damages , arising from so divers , various and different causes , all which do a●ter the very judgements and determinations according to their different qualities , respects and conditions , which law ( as i have said before ) for the community of traffick and commerce , and holding correspondency therein , and obtaining the same justice by each nation from other , must continue certain and unalterable , when as the other may suffer alterations , additions or diminutions . it remaineth therefore here to shew , that besides the laws of oleron , &c. and the title ad legem rhodiam de jactu before mentioned , which is inserted in the body of the civil law , that there are several other titles and laws incorporated in the same body proper and peculiar for the decision and determination of maritime controversies , which are not at all excercised or used in the decision of the differences in land businesses , nor any ways proper for them , although many of the other titles and laws which are for land businesses are made use of in the proceedings , and sometimes in the determinations of maritime causes , and that neither those general laws which serve for both , nor these particular laws which serve for marine causes onely , are either abolished , taken from , or disused in the admiralty courts in foraign parts , but that the same are of most especial use in the same . for proof hereof , i might cite the disputations , decisions , determinations and judgements of divers , and very many , if not of all and all manner of causes , set forth in several authors , of several nations , in several ages and times , even to this present age , which are all grounded upon the same laws , and do cite and quote the same for their their foundation , and proof of what they conclude and determine , as i have said before . but no man can conceive that this collection of so many causes out of so many several volumns , could be contained in one so small as i intended this . and some ( and those not a few ) would think it a vain and needless work to jumble so many authors together , to no other purpose then to confute so plain an errour , as no man that hath been at all verst in the proceedings of foraign judicatures , can be induced to believe . i shall therefore instance only in some few particular writers of these latter times , of most common use , and most generally known . i shall step no further back then unto peckius , sometime principal of the juridical order in the university of lovain in france , who collected and gathered together several titles , by him pickt out of the body of the civil law , which principally belonged unto maritime affairs , and wrote a comment upon the same , which was there printed in the year of our lord god , above a hundred years since , for the use of such as were employed in the judicature or practice in the law in admiralty courts concerning marine businesses ; in which commentary he doth not only cite divers other civil law authors , but likewise enforceth , extendeth and limiteth the understanding and construction that is to be made of the several laws , comp●ehended under those several titles , by other particular laws set forth under several other titles , within the very body of the civil law , as necessarily he must do , having not taken in all those titles which concern the business , as himself confesseth in the very title of his book , which he saith is commentaria in omnes penè juris civilis titulos ad rem nauticam pertinentes ; a commentary upon almost all the titles of the civil law , which concern maritime affairs . but indeed they are not near all , if we consider the divers particular lawes which concern the same , and are intermixt with other laws under other titles , and some titles he meddleth not with , which wholly concern such matters , and nothing else ; nor doth he at all treat upon any other laws which concern such affairs , and are made use of in all admiralty courts together with the civil law. wherefore vinius a learned civilian of the low countries made an additional commentary upon the same titles of the civil law , and upon the commentary of the said peckius , and set forth the same , which was printed at leyden in holland , in the year of our lord god , one thousand six hundred forty seven , wherein he undertaketh , not only to explicate and unfold those titles of the civil law which principally concern maritime affairs , as peckius had done before , but also to adjoyn thereunto the laws of wisbaith , the laws of oleron , the laws set forth in the book de consulatu maris ; and likewise the maritime law of the rhodes , jus navale rhodiorum quod ad finem tomi secundi juris graeco romano relatum est a marquardo trahero , v. cl. as he himself saith , that his said work might be usefull to all nations in their judgments and determinations in all manner of controversies , and therefore saith thus ; cum in animo haberem locos juris nostri , qui ad rem nauticam pertinent , non explicare tantùm , verum etiam cum generis ejusdem institutis & moribus aliorum populorum conferre , atque ad usum quendam accommodare communem , &c. now although that for the due administration of justice in an admiralty court , the learning in , and knowledge of the laws in these last mentioned books be very requisite , that the same justice which one nation affordeth to another , may be by that other rendred unto that nation again , and it obtain the same ; yet is the learning and knowledge of the civil law , which guideth and directeth both the proceedings and judgments in all admiralties of europe , as necessary , and farre more requisite for him that will justifie to any other nation , or learned civilian his due and legal proceedings , and justify his judgments and determinations in maritime causes , though according to the laws before mentioned . for vinius himself in his epistle dedicatory to the consuls of amsterdam to his said work praefixed , ( who i doubt not but ( in regard that ( which he then said in the behalf of the civil law ) he said not to any that i now write ) will be believed before me , that may be thought to speak for my profession in mine own country ) affirmeth that peckius in his work intended to keep himself within the rules of the civil or roman law ; yet he did by that work shew that he wanted not the perfection of learning , or solid and sound knowledge of law , and many other things . ac for●asse peckius intra limites juris romani se continere voluit ; utcunque sit , ostendit sane hoc in opere peckius sibi non defuisse justam eruditionem ; solidamque juris & multarum rerum scientiam . and this i will further add , that he that in the civil law only ( and without the learning and knowledge which other authors afford ) hath justam eruditionem , a iust , perfect , or grounded learning , or skill ; and thereby this solidam juris & multarum rerum scientiam , this solid and sound knowledge of the law , and multiplicity of business , or matters , for which the same was composed and continued , may be fit to judge and determine of these maritime matters and controversies which happen concerning the same , when as he which hath the learning and knowledge of these other authors only , and hath no perfection in the learning and knowledge of the civil law , shall be very defective in the proceedings to the due or just judgment therein : but herein i shall plainly agree with this my learned author vinius , that these authors are of very good use , & may conduce much to the perfection of him that is either to judge or determine of such controversies , or shall be practicant in the same ; and likewise in that he further addeth in the same place , viz. that notwithstanding the most perfect knowledge and learning in the civil laws , and these other maritime laws , it is sometimes , and in some things requisite to make use of , and consult with such merchants and mariners , as are expert and skilfull in navagation and commerce . equidem inficior in negotiis nauticis nonnunquam confugiendum esse ad expertes , sive nautas , sive mercatores , aliosve hujusmodi peritos . yet this is by no means used , or ought to be done , but where some such thing falleth out , whereof there is nothing certain set down in the written law , or introduced by custome , so that i with my same author affirme the same with that learned civilian benveautus straccha , in these words ; caeterum nego id fieri solere aut debere , nisi ( ut rectè monet prudentissimus straccha ) tale quid occurrat , de quo nihil certi aut scripto jure cautum , aut con●uetud●ne introductum est . now seeing that these marine controversies and differences are to be adjudged and determined by these civil and maritime laws , certainly then are none so fit to heare and decide the same , as those that are well verst and skilled in these laws , which necessarily must be such as spend their whole time , pains , and labour in the study thereof , and by that means do better understand the diversity of such laws , and gather more knowledge therein then such as are daily imployed in forreign affairs , and continually busied in multitudes of negotiations , which bring home a golden harvest , which will not be left , or at any time set apart to give way for the study of those laws which bring in no such profit . such men will rather be found in their sellars and ware-houses amongst their rich and precious commodities , which are to be bartered and sold , then in studies amongst mustie books , that are to be kept and not parted with ; and will rather be seen upon an exchange , mart , or meeting-place of merchants , then upon a bench of justice : and in this my said author vinius agreeth with me , who saith , caetera enim scire possunt etiam qui vitam umbratilem colunt , & hi si quid literis mandare volunt plura conquirere solent , & curiosiùs cuncta rimari quam aut pragmatici qui rarò relictâ messe aureâ , quàm assidua rerum forensium affert tractatio , literarum monumentis unde nullus praeventus est , student , aut quilibet alii , quos nimia & circumfusa obsidet & opprimit negotiorum multitudo . and now since i have thus farre deviated and digressed from the way that i was in , give me leave here ( in so necessary a course , or rather discourse ) to go a little further , and afterwards get home again as well as i can . let me shew of what necessary use the civilian is in these admiralty courts , which have the decision of maritime controversies , and how unfit other men not verst or skilled in that law are for the undertaking thereof . i know it will be objected unto me in the first place , that some admiralties in forraign parts are regulated and ruled by the justice and judicature of merchants , and other feafaring men well experienced in matters of that nature . i must confess i am no traveller , and that in regard have not been amongst these mercatorian and nauticall judges ; but yet have i in my study travelled through the decisions and determinations of many forraign judicatures , and by that means ( i believe ) do know their laws somewhat better then they which have travelled through those countries , but not through those courts . and i do finde that where such mercatorian and nautical judges are , they are either civilians themselves , or at least , farre better verst in the civil law then any of the merchants or mariners of our nation do seem to be ; or else they are not only assisted , but regulated and ruled by civilians , and moreover by certain letters yet remaining in my study , which i have ( in that short time that i have been verst in the high court of admiralty in england ) received from such forraign admiralty courts , and the copies of letters which were unto them returned in answer , and their replyes thereunto , i can shew , that upon contest for the right of jurisdiction in the cognizance of causes , which have happened between forraigners and english , whether the causes were to be decided by their court or this , that they have urged and quoted the civil law for the foundation of their arguments , for their right of jurisdiction therein , and have received satisfaction by answers framed out of the same law unto their said arguments . if i should here set forth those letters and copies , it would thereby appear , that the j●risdiction of the admiralty court of england hath been maintained and defended by civilians in an other manner then the same would have been by such mercatorian or nautical judges , and that the subject of this nation thereby hath gained that justice and right at home , which might otherwise perhaps have been hazarded abroad . but i intend not to stuffe or fill up this short treatise ( which i intended should have been farre shorter , when i first took it in hand ) with packets of letters received from several forraign judicatures , and the answers thereunto returned , which will hardly , or not at all be understood by such as are not already convinced of that which they should be here set down to prove . nor will i here set forth how farre those mercatorian courts ( though assisted by civilians through their over-powering of their said assistants ) have fallen short of those which have been and are wholly regulated and governed by civilians , as well in point of proceedings , as in point of the distribution of justice . but i will here take occasion to set forth some inconveniences not a little destructive only to trade , traffique and commerce , and so to the merchant himself ; but also to shipping and navigation it self , which might , and doubtless would happen , if the dicision and determination of maritime causes should be left unto , or settled upon merchants and owners of ships to judge according to their own skill and observations , without that jus scriptum , that written law which passeth , is allowed and practised in all admiralties of europe , wherein they cannot be so well verst , as those who have spent their whole time in that study of such matters as much conduce to the knowledge thereof . i shall but once again put you in mind of what hath been already said concerning the necessity of upholding one and the same law in all nations in maritime causes , for one nation 's rendring of the same justice to another that it doth from thence receive , which is the chiefest thing that maintaineth the community of traffique and commerce , which cannot possibly be done , if the same should be rendred , by the various fancies of men , in no wise guided by any certain forme or rule , but by that thing ( then which nothing can be more uncertain ) which men call opinion ; tot capita , tot sententiae . and then i will further say , that for the reason before set down in this chapter , the mariner who cometh in with one good wind , and goeth out with another , and must opportunè vela ventis applicare , upon any controversie or difference arising upon or about the payment of his wages , cannot have so sodain and quick dispatch or determination thereof by such mercatorian or nauticall judges , who have other affairs and businessss to attend , as by those who make the decision and determination of maritime causes their whole work , and attend wholly upon the same every day of the week , both terme and vacation . again , it is considerable what justice the poor mariner could expect , or should be like to have , if the determination and adjudication of their wages should be left unto merchants and owners of ships ( as some men would have it ) out of whose freight the same ought to be paid , and would be as it were parties in all causes of that nature ; and if the cause should not at one time be their own , yet must it , and would it assuredly be at another ; and so at all times would it be their own case , though not their own cause : and very seldome would it be , that it should not be their own cause , there being so many merchants that are owners of ships , and so many owners of every ship of any burthen considerable ; and every part-owner of one ship for the most part , owner or part-owner of more , if not of very many ; so that for the most part , some or other of the judges themselves would be absolutely concerned in the matter of difference depending before them , and the poor mariner left to their good will and pleasure for his wages and recompence for his pains impended , and his time spent in their service , which would be a means to dishearten and discourage all mariners for serving in english bottoms , whensoever imployment should be offered them elsewhere . again , in the commixture and joynt trade of merchants one with another , having their complices & copartners in all or most of their trading and merchandizing affairs , and such their trading and dealing each for other , and in each others name , that it might , and oftentimes would fall out , that when a man conceived that he had commenced a suit against his adversary , and whom he had dealt and traded with , he should in conclusion find that he had commenced the same against one or more of his judges , that were to judge and determine his cause , or rather the same might fall out so to be , and not be at all discovered . much more i could say to this purpose , but i hasten to return to that which i principally intended to set forth in this chapter , namely to shew by some few authors of very many , that much of the civil law it self is of use , and in force in all admiralty courts , as well as any other maritime laws . and as i last instanced in vinius , i shall in the next place instance in the authors by him mentioned , namely benvenutus straccha , who writeth de mercaturâ sive mercatore , de contractibus mercatorum , de mandatis , de sponsionibus , de nautis , navibus & navigatione , de navibus iterum , iterumque de navigatione , de conturbatoribus , sive decoctoribus , quomodo in causis mercatorum procedendum sit , & de adjecto : of merchandizes and merchants , and of their contracts , mandates , warrants and bargains , or promises of mariners , ships , and navigation joyntly , of ships severally , and of navigation by it self , of bankrupts , and failing merchants , in what manner merchants causes are to be proceeded in , and of factors or substitutes , &c. which book was printed and set forth within this last century of years . and i do earnestly desire those that hold the civil law useless in these affairs , and in the courts designed for determination of differences happening therein , but to look into the before mentioned book , together with grotius de jure belli & pacis , gentilis & loccenius , who are latter writers , being all easily to be had , and they shall find the very text of the civil law , and commentators thereon , not only out of these before mentioned selected titles , but out of divers others , cited and quoted for authority in all the several points the said authors do handle or treat of , which i hope will be sufficient to convince any judicious man , and sufficiently perswade him that the civil law it self is of most exquisite use in all admiralty courts . chap. xvi . that by several of the laws of the titles selected out of the body of the civil law by peckius for the determination of maritime causes , and divers other of the civil laws conducing thereunto , it doth appear that the ports and havens , and businesses done thereupon , are within the cognizance of the admiralty jurisdiction . having now made it appear that there have been several titles selected and gathered out of the body of the civil law for the dicision and determination of maritime causes , and the same then , and since very lately commented on for the better understanding thereof , and the more perfect knowledge therein ; now it will remain to shew that by these laws , and divers others of the civil laws mentioned in the foregoing chapters of this book , it will plainly appear , that the ports and havens , and all things had , done , or agitated thereon are within the power and cognizance of the admiralty jurisdiction . and the first of those titles , so farre forth as it concerneth the admiralty is , nautae , a caupones , &c. ut recepta restituant . and this title consisteth of several laws , whereby masters of ships , mariners , &c. are compellable to restore such goods , wares , and merchandizes as they shall have received aboard their ships . now if the jurisdiction of the admiralty courts had been restrained unto the high seas , where masters of ships and mariners seldome or never receive in , or deliver out their merchants goods , but upon some meer accidental occasion ; and had had no cognizance of causes happening and falling out upon the ports and havens , where usually they receive them in , and deliver them out ; then certainly little reason had peckius had to have made this title to have been the first of those select titles he gathered out of the body of the civil law , for the decision of marine causes , which belong to the admiralty courts ; and as little reason had vinius had to have added so lately his additional notes thereunto for that purpose . the next title so collected , is b de exercitoriâ actione , which concerneth contracts , and is to be made use of in its place . the next is the title c ad legem rhodiam de jactu , which i have already instanced in to this purpose in the th , th , and th chapter of this d second book , and therefore shall pass it over in this place . the next to this is the title e de incendio , ruina , naufragio , rate nave expugnata , of and concerning burning , destruction , and ruine of things , ship-wrecks , robbing or spoyling of ships . now as under the first of these titles , caupones & stabularii , victuallers and inholders were comprehended as well as nautae , mariners ; and yet is it by peckius collected and commented on only for so much as concerned marine and nautical affairs , fit and proper for admiralty courts , who saith that it is his purpose and intent in his comment to explain those laws only that belong thereunto , and saith that the other are but things which have some affinity with , or likeness unto the other , or are things handled by such as handle things of another nature , which he expresseth in these words ; contestatum ante omnia haec volo te , lector , non expositurum me hoc titulo , nisi eas leges quae ad rem nauticam pertinent ; illud enim nostri est instituti , caetera vel adfinia sunt , vel ab aliis utcunque suis locis f examinata . so under this title , although burning , ruine , and destruction of things at land be comprehended as well as shipwreck , &c. yet doth peckius his comment extend only unto those laws therein which concern maritime affairs . now these laws which concern offences committed in case of shipwreck and robbing , and dispoiling of ships , or other vessels comprehended under this title , do indistinctly handle the same , whether they happen to be done upon the high sea , or upon any port , creek , or haven , ( where most of these things most commonly happen ) as by the particular laws themselves it doth manifestly appear . this title setteth forth how , and in what manner such persons shall be punished , which ( when any ship , or other vessel ( not being a derelict ) shall be wrecked , stranded , or otherwise distressed , by robbery , opposition , quarrel , spoil , or g otherwise ) with a deceiptfull intention , to steal , take , carry away , receive , or damnifie h any of the goods , wares , merchandizes , tackle , furniture , ammunition , provision , &c. belonging thereunto , though the same were cast out of the i ship , and that indistinctly , whether the said misfortune happened , either upon the high seas , or upon the ports , havens , creeks , or coasts of the sea , where ships and other vessels do ride , lie at anchor , or have their station ; and indeed more proper is this law for the ports , havens , creeks and coasts of the sea , then for the high seas , it rarely or never falling out , that any persons are present to steal , take , carry away , damnifie , conceal , or imbezle any of the goods belonging to any ship or vessel which shall be there wrecked , nor the goods belonging to any ship that shall be there robbed , or in fight with an enemy , but such as are either the pirats or enemies themselves , neither of which fall under the judgment of this law , the one falling under that judgment which is proper to pirats , the other under that which is proper to an enemy ; and this being not appointed for the punishment of such as are either the robbers , pirats , or enemies , which set upon the ship , but of such as take the advantage whilst such strife and contestation is ; or when any wreck doth happen , and when the master and mariners are in a distraction , do take away the goods belonging unto their ship , which must needs most commonly fall out , when any such ship or vessel shall happen to be so wrecked , robbed , or dispoiled in a port , haven , creek , or coast of the sea , where the shoar is near , and the goods are either cast upon the same , driven thereto , or with boats , engines , or other instruments fetched or brought thereon . and by the two next laws it more plainly appeareth , that this title principally aimeth at such as shall offend in this manner , when a ship is in her port or haven , or upon any creek or coast of the sea , and there doth suffer any such distress , or any such sad accident doth befall : for that those laws take care as well for the punishing such as shall take away any of the goods from off the shoar , which shall be cast or driven thereon , as the punishment of those that shall take them out of the ship it self . item ait praetor . si quid ex naufragio , hic illud quaeritur utrum si quis eo tempore tulerit , quo naufragium fit , an vero etiam si alio tempore , hoc est , post naufragium : nam res ex naufragio etiam hae dicuntur , quae in littore post naufragium jacent , & magis est ut eo tempore k . and the third law runneth in these words . qui autem in littore rem jacentem postea quam naufragium factum est abstulerit , in eâ conditione est , ut magis fur sit , quam hoc edicto teneatur , quemadmodum is qui quod de vehiculo exciderit , tulit l . and many things more of the same nature are comprehended under the several paragraphes of this law. and these distresses happening at high sea , there is little help to be expected from any at land , in gathering and preserving the goods like to be lost ; but by this title encouragement is given to such as shall help in this kind . plurimum interest peritura collegerint , an quae servari possint invaserint m . and the seventh law plainly forbiddeth such as dwell upon or near the shore , to take away such goods so wrecked , though stranded , broken , or cast upon ground , within the confines of any mans ground . nam & divus adrianus edicto praecepit , ut hi qui juxta littora maris possiderent , scirent siquando navi vel infixâ vel fractâ intra fines agri cujusque ne naufragia deripiant &c. n . yet to make the matter more clear that these laws were collected out of the body of the civil law , as well to direct the judgements of maritime judges upon those offences and trespasses committed upon the ports , havens , creeks and coasts of the seas , as upon the high seas , i shall instance in an authentick , by the same author collected out of the same law , and by him likewise commented on , wherein it is expressly set forth that ships and vessels of what kind soever , usefull for marine businesses ( for so much the word mavigia doth import ) in what place they shall come , which must needs be ports , havens and creeks of the sea , as well as the high sea , if by any contingent accident they shall be broken , or otherwise come on ground , as well the ships as the goods of the saylers and adventurers therein shall be preserved whole and entire unto those unto whom they belonged before such ships or vessels fell upon the said danger , the custom of all places whatsoever contrary to this sanction being altogether to be set aside , unless they be the ships of pyrats or enemies . these are the words of the authentick . navigia quocunque locorum provenerint , siquo casu contingente rupta fuerint , vel alias ad terram pervenerint , tam ipsa navigia quam navigantium bona ipsis integra reserventur ad quos spectabant antequam navigia hujusmodi periculum incurrissent , sublata penitus omnium locorum consuetudine , quae huic adversatur sanctioni , nisi talia sint navigia quae pyraticam exercent pravitatem , sive nobis sive christiano nomini inimica o . before i pass any further , i must needs here observe the same thing that peckius hath observed upon these words of this law , sublata penitus omnium locorum consuetudine , &c. viz. illud sane sine ullâ dubitatione dici potest quod certum sit consuetudinem contra jus naturae nullam habere potestatem p . that it may without any doubt be said , that it is certain that a custom against the law of nature hath no power or efficacy . and further he saith , in casu constitutionis nostrae omnium consensus operari quicquam non potest cum divinis naturaeque praeceptis consuetudo ejusmodi repugnare videatur q . in this case the consent of all men can work nothing , because such a custom may be discerned to be repugnant both to the divine and natural precepts ; and herewith doth vinius learnedly concur and much blameth such as have suffered any such custome . and with this law agreeth the very first law of another title , to the same purpose with this collected by the same author in these words : si quando naufragio navis expulsa fuerit ad littus , vel siquando aliquam terram attigerit ad dominos pertineat , fiscus meus sese non interponat , quod enim jus habet fiscus meus in alienâ calamitate ut de re tam luctuosa compendium sectetur r whensoever a ship by wreck shall be driven upon the shore , or whensoever she shall be run upon any ground , i.e. either in port , haven or elsewhere , she shall belong unto her owners ; my exchequer or receipt shall not intermeddle therewith : for what right hath my exchequer , that it should require or seek for any small matter or trifle in so mournful or sad matter or condition ? i must confess that by this last observation , i have made some digression from my intended purpose ; yet have i not gone much out of my way , nor farre about to discover what a rock we of this nation ( who pretend not onely many customs , but inforce several patents and grants , howsoever obtained , clean contrary to this law ) are like to fall upon , and what a wreck we are like to make of our maritime law , whereby we uphold all our trade , traffick and commerce with other nations , by falling upon this errour , so strongly maintained by sir edward coke , that the ports and havens are not within the jurisdiction of the admiralty court , where as this law is universally practised in all parts of the world. for although by this law , and the inquisition taken at quinborow in the end of edward the ds . raign , and by the inquisition translated into latine out of an ancient french copy by roughton , upon any wreck , stranding , or running on ground of any ship or vessel whatsoever , or wheresoever the owners are to have their ship or vessel , or such part thereof , such tackle and furniture thereof , and all such goods as are saved and can be found out , entirely restored unto them : instead hereof many lords of mannors , who perhaps had some right of claim to all , or some part of pyrats or enemies goods so wrecked , as the best anchor and cable , &c. where the rest of the goods belonged or were confiscable either to the lord high admiral , or supream authority ( as in some cases they are to the one , in some to the other ) will ( as i do already find ) even out of the ships and goods both of those of our own nation , and of our friends , and those that hold good correspondencie , and are in amity with us , under a pretended custom contrary to all law , claim and have the same in the like maner , and other customs likewise , which are as contrary to the law of nature , as this . and not onely so but many even of our own nation and others of other nations , who neither are pyrats , nor enemies to this nation , but in amity and friendship therewith , may have their ships stranded or wrecked and cast away , and have their goods even snatched from them by force , and violence , and carried away , and detained by such as can have nether pretence nor colour for such unjust and inhumane dealing , contrary to the law of nature , and nations , and that law which is elsewhere universally practiced , if the current stream of justice of the admiralty court , in these ports , havens , creeks and coasts of the seas shall be interrupted and stopped , under this pretence , of having no power or jurisdiction over them . which pressures in such extreamities , if they shall fall upon those of our own nation , we shall seem even to devour and eat up one another ; if they shall fall upon forraigners , that are in league , and amity with us , this breach of a law so general may be a cause of the breach of such league , and amity , or at least of the begetting of letters of reprizal , on their part against our merchants , and owners of ships , which is prima species belli ; by which way of their reparation , the subjects of this nation are like to pay at least three fold for the damage done , by such wicked and mischievous people , and not by themselves . but here an objection ſ will arise , viz. that by the express words of a statute of the land , made in the th year of the raign of richard the . the admiral is to have no cognisance , power , nor jurisdiction of wreck of the sea. to which i answer , that by wreck of the sea , in this statute mentioned , is , as i conceive , and under correction , onely meant and intended such things as are cast out of the bowels of the sea , and by the waves thereof driven on shore , and upon the reflux thereof , left upon the land , wherein no man hath any property , or to which , no man can make any claim ; this is properly called wreck of the sea , which belongeth properly to the king , and by his grant unto the lord high admiral : but in case any ship , or other vessel , shall be wrecked at sea , or in any port , haven , or creek , or upon or near any coast , neither the ship nor vessel , nor any of the goods thereunto belonging , howsoever found therein , or found floating upon the water , or driven on shore , or dry land , are wreck of sea , though the ship be usually said to be a ship wrecked , and the goods said to be wreck , but indeed are bona sparsa ex naufragio ; goods scattered and thrown over board , through ship-wreck , or fear or danger of ship-wreck , wherein the owners of them have a just property , and may make their claim thereunto at any time within a year and a day , and ought to recover and have the same again , by the laws of the sea ; and therefore hath that law exactly set forth , how , and in what maner , such as shall either by violence , or by stealth , or howsoever take , and carry away , or conceal any such goods , from the lawful owner , and proprietor thereof , ought to be punished , and make satisfaction for such their offence committed against the law t . and as that law doth distinguish those things , which be ex naufragio , from wreck of the sea , as plainly it doth ; so doth it distinguish the offence of taking away such goods , at the very time of the shipwreck , from the offence in some time after the same , as is plain by the laws , before quoted in this chapter u . but since the making of this statute , in regard of the differences which did arise , and which did grow about such goods , whether the same were wreck of sea , which belonged unto the king , or derelicts , ships or goods forsaken , and given over for lost : or flotson , that which after a wreck , was found floating upon the water , and by no man claimed : or jetson , that which was thrown over board to disburden and lighten the ship , for preservation thereof , and of mens lives , and the rest of the goods : or lagon , that which was found in the bottom of the sea , or any great river beneth the first bridges , within the low water mark , all which belonged to the kings of england , who have usually granted the same which belonged unto themselves , unto the said lords admirals , amongst the other things before mentioned ( as doubtless they may do , the same being confirmed unto themselves by the statute , and unto their own use ) and the said admirals have constantly had the same , and the benefit thereof . another title there is amongst the said collected titles de naviculariis seu naucleris , by the laws whereof it doth likewise appear that the admiral hath jurisdiction upon the ports and havens . the first of them saith thus : nullam w vim oportet naucleros sustinere delegatas species annonarias transferentes , nec concussiones , nec aliquod genus incommodi ; sed venientes ac remeantes omni securitate potiri , decem librarum auri mulcta proponenda his qui eos inquietare tentaverint : no force or violence , or any manner of disturbance or hinderance shall be offered unto the masters of ships , or mariners , which are appointed by their prince , to transport any goods or commodities for the publique use or benefit , under the pain of ten pounds , to be imposed upon such as shall adventure to molest or disquiet them . now i hope no man will say that this extendeth not to such force , violence , or molestation , as shall be offered unto them upon any port or haven , either before their setting sail to sea , or in any port or haven of their discharge , or in any port or haven they shall by storm or stresse of weather be driven into . and this priviledge , saith peckius , is no small benefit unto them ; for they can neither be arrested , nor deteyned , nor compelled to pay any custome or tribute : quod privilegium , quae praerogativa , utilitas meherule modica non est ; etenim nec arestari ( ut dicunt ) nec detineri , nec ad vectigalium solutionem compelli possunt , which certainly sheweth that this law extendeth to the ports and havens upon which all arrests of ships , or other vessels , or mariners are for the most part made , and all compulsion to the payment of tribute or custome used or exercised . if this be not enough , take the last law of the same title , and peckius thereupon , in these words : judices qui onusta navigia cum prosperior flatus invitat , sub praetextu hyemis immorari permiserint , unà cum municipibus & corporatis ejusdem loci fortunarum propriarum feriantur dispendiis , naucleri praeterea x paenam deportationis accipiant , si aliquid fraudis eos admisse fuerit revelatum : such judges as shall permit or suffer such ships or vessels so laden with commodities for the publique use and service of the common-wealth , having a good wind , to stay or demore in any port or haven under the pretence of winter , shall together with the burgers , or chief of that place , bear or pay the loss or damage thereby sustained : and the masters of those ships which shall be found guilty of such offence , or fraudulent in that way , are to be punished with banishment . now no man will doubt but that this stay or demorage , which is thus strictly to be lookt after by the admiralty judge under such a pain or penalty , and so severely to be by him punished , is such stay or demorage , as is made in the port or haven , and not upon the high seas . and peckius saith in express words , if they shall stay or demore in the port or stations for ships at such time , it is the office of the judges by all wayes or means to drive them out , or compel them to go on upon that voyage they are designed . quinimo si tempore ad navigandum idoneo , suspensâ navigatione , in portu stationibúsve haererent , y judicis erit officium omnibus modis eos abigere . and by the same law all ships and vessels of what nature , condition , or quality soever they be , and whosoever they be , may be by the power and authority of the admitalty seized on in any port or haven where they ride , and be z taken and employed upon any service of the king , and are not to be excused . one title more of the civil law i shall instance in , which treateth of things done upon the ports and havens , and then return to some other arguments out of our own presidents at home ; and that is the title of the digests , nequid a in flumine publico , &c. where the praetor doth interdict , nequid in flumine publico , ripáve ejus facias , nequid in flumine publico , ripáve ejus emittas , quo statio , itérve navigio deterius sit , fiat . the praetor forbiddeth any thing to be done , or to be cast forth into a publique river , or upon the banks thereof , which may either hinder the lying or riding of ships there : and this edict extendeth directly to rivers navigable , and none other , which are the ports and havens , and those other parts of the same river through which ships and other vessels do sail to the place of their station or anchorage . hoc b interdictum ad ea tantùm flumina publica pertinet , quae sunt navigabilia , ad caetera non pertinet . nor doth the praetor here forbid any publique lawfull use of these publique streams , ports , or havens ; but taketh a special care , that nothing therein shall be done which may deteriorate or hinder the safe and quiet passage , anchorage , and lying of ships there . non autem omni quod in flumine publico , ripáve fit , b coercet praetor ; sed si quid fiat quo deterior statio & navigatio fiat ; and the same law setteth forth what is accounted to be a deteriorating or making worse of the said station , anchorage , riding , or sailing of ships : deterior statio , item iter navigio fieri videtur , si usus ejus corrumpatur , vel difficilior fiat , aut minor vel rarior ; aut si in totum auferatur ; proinde sive derivetur aquâ ut exiguior facta , minus sit navigabilis , vel si dilatetur aut diffusa brevem aquam faciat , vel contra c sic coangustetur ut rapidius flumen faciat ; vel si quid aliud fiat , quod navigationem incommodet , difficiliorem faciat , vel prorsus impediat , interdicto locus erit . the station or anchorage , and also the passage for ships doth seem to be deteriorated , and made worse , if the use thereof be corrupted , or made more difficult , less , or more shallow , and more seldome to be used , or shall be wholly taken away . further , or if the water shall be from thence drawn , and so be made less , and so less navigagable ; or if the banks shall be taken away , and the river thereby made wider , and caused to spread it self more in breadth , whereby the water cometh to be made more shallow : or on the contrary , if it shall be encroached on , and so streightned , that the river passeth with more strength or violence ; or if any thing else be done which may disaccommodate navigation , or make the same more difficult , or altogether hinder it , this edict shall take place against the same . from which law many articles of the inquisition taken at quinborow , and of the ancient french articles , translated into latin by roughton , set forth to be inquirable in the admiralty , are plainly derived : which articles , and likewise many statutes which forbid the same offences , were enacted to make the same more notorious to the people , and are only in pursuance of this law , which is the fountain from whence they flow , as their original . now lest some should still strive against the stream , and offer to contend , that this edict of nequid in flumine fiat , &c. that nothing shall be done in any navigable river , or the banks thereof , which may hinder navigation , or the station or anchorage of ships , is meant only of the river which leadeth to the port or haven of discharge , wherein ships do oftentimes lye at anchor before they can come further up to be discharged in the port. i shall further clear this point by the interdict mentioned by labeo in the th section of the same law , where the very word port is used : nequid in d mare , inve littore , quo portus , statio , iterve navigio deterius fiat . after all this perhaps some may lauch further out into the deep , and say that although these laws collected out of the civil law , are made use of in maritime affairs beyond the seas , and do argue their admiralties to have jurisdiction upon their ports and havens , yet are they of no use here , for the admiralty of england is by the common law of england more restrained , and extendeth not unto the ports , nor hath so large a power as forreign admiralties have . since so many nations as are named in the libel subsequent unto the last chapter of the first book of this maritime dicaeologie , have by the same so fully acknowledged the regimen , government , and jurisdiction over the narrow seas to belong to to the admiralty of england , and no other admiralty , as is plainly in the same set forth . let none of this nation for shame say that the power and authority of this court , which extendeth as farre , and further then the power of any other admiralty courts doth , shall be nothing at or near home . nor let it for shame be said that our admiralty , to which they have not only ascribed , but prescribed from so antient antiquity , such superiority , shall not afford unto forreigners the same justice other forreign admiralties afford unto this nation . but for further satisfaction to such as will be further curious , i shall proceed to make further proof of this point by presidents out of our own courts at home . chap. xvii . that by the records of the admiralty , it appeareth that the admiral had , and hath power and jurisdiction upon the ports and havens . the statute of the th of hen. . cap. . e directeth that the tryal of traytors , pyrats , theeves , robbers , murderers and confederaters upon the sea , or in any haven , river , creek , or other place , where the admiral or admirals have , or pretend to have power , authority , or jurisdiction , may by virtue of a commission under the great seal , directed unto the said admiral or admirals , his or their lieutenant or lieutenants , and three or four substantial persons , be made and done according to the common course of the laws of the land ▪ but taketh not away the admirals power of tryal of the same offences , by the course of the civil law , as had been formerly used ; but leaveth him to proceed in causes of that nature either way , as the proof the fact may be most fitly had , or made . and this statute is so farre from limiting or taking away any of that power or jurisdiction he had before upon the ports , havens and creeks of the sea , and other places , that in express words it confirmeth same , and further extendeth his power , unto a twofold manner of tryal of such offences committed within the same limits , that to his jurisdiction formerly belonged , to make use of each , as he should see cause . and the cognizance and tryal of all offences of this nature , whether committed upon the high seas , or upon the ports , havens , or creeks of the sea , and whether proceeded against by the course of the civil law , or the course of the common law , hath belonged unto the admiral , or admirals , and his or their lieutenant or lieutenants , judge or judges of the high court of the admiralty , or judges of vice-admiralties , and hath been by them constantly and continually practised and used . i might here lead you into a labyrinth and so involve both my self and you , in such a vast thicket of heaps of ancient records which remain in the registries of our admiralty , which plainly set forth this constand and continued power and jurisdiction of the admiral upon the ports , and havens , that we should in no short time , nor with little labour get out again . if i should here go on , where i left in the first book of this treatise , and endeavour to give you a view , but of the patents onely , which several admirals of england have since edward the thirds time had ( they having from time to time had more plain and clear expressions of the admirals right , power , authority and jurisdiction , they having by that means grown very large ) i should too much swell this small treatise in proving that which will be by farre shorter records more briefly , and yet plainly enough made to appear . therefore to spare mine own labour in writing and transcribing these patents , and yours in reading them , i shall pitch upon some few other of the shortest records onely of one year amongst above a hundred , since the making of the said statute , and that shall be the eight and twentieth year of queen elizabeths raign , at which time all the judicatories of this nation were in as good perfection and absolute lustre and splendor for due observation of their just rights and priviledges , as at any other time whatsoever . in the th . year of queen elizabeth against the sessions to be held for the admiralty by vertue of a commission grounded upon the said statute of henry the eighth several precepts or mandats issued out of the admiralty court unto several persons for the summoning and returning of juries for the enquiry and tryall of all such offences as are mentioned in the said statute , whether committed upon the sea , or upon the river of thames below london bridge towards the sea , or upon the sea-shore , wheresoever , within the maritime jurisdiction , and limits of the admiralty of england , or elsewhere , in or upon publick rivers , ports , creeks , or places overflowed by the sea. i shall here set down a copy of one of them onely which beareth date in the moneth of feb. in the same year . carolus , dominus howard baro de effingham praeclari ordinis garterii miles , magnus admirallus angliae , hiberniae , walliae ac dominiorum & insularum earundem , villae calisiae & merchiarum ejusdem , nec non gasconiae , aquitaniae , classium & marium dictorum regnorum angliae praefectus generalis , ac socii sui justiciarii serenissimae dom , nostrae reginae suae admirallitatis angliae ad omnia & singula proditiones , felonias , roberias , furta , murdera , homicidia , confederationes , delicta piratica , spoliationes , depraedationes , &c. & delicta quaecunquae tam in , aut super mare , vel publico flumine thamises citra pontem civitatis londini versus mare , quam super littus maris ubicunque locornm infra jurisdictionem maritimam & limites jurisdictionis admirallitatis angliae praedictae , vel alibi in aut super fluminibus publicis , portibus , crecis , & locis super inundatis quibuscunque contra pacem ejusdem dominae nostrae reginae , atque statuta , leges & ordinationes dicti regni sui angliae , ac communes leges , statuta ac ordinationes maritimas curiae suae admiralitatis angliae , ejusdem qualitercunque habita , facta , attemptata sive commissa & perpetrata & vicecomiti surr. &c. tihi praecipimus , &c. quod venire facias , &c. and the like warrants or precepts were at the same time directed unto the bayliffs of the liberty of the city of london , in the burrogh of southwark , and likewise unto the bayliff of southwark . another warrant was likewise directed unto jasper swift , the then marshall of the admiralty , that he should have richard jones , osmund sparke , john barnard , humphrey hood , and thomas seal , committed for pyracies and felonies by them done upon the sea , and upon the river of thames below bridge , towards the sea , before the said courts in these words . carolus domminus howard , &c. ut in superdicto praecepto jaspero swift curiae admirallitatis angliae mariscallo , tibi praecipimus quod richardium jones , osmund sparke , johannem barnard , humfridum hood , & thomam seale in custodia militis macresc . & modo detent . & existent . nuper de pyratiis & feloniis per ipsos super mare & rivum thamiseos infra pontem , &c. coram , &c. habeas , &c. and there being then divers other pyrats , and other offenders in the marshalsey , another warrant was directed unto the knight marshal keeper of that prison to have all and singular the pyrats and other offenders before the said court , which warrant likewise ran in the manner of the former ; viz. carolus howard , &c. tibi praecipimus quod tertio die octob. &c. coram , &c. omnes & singulos pyratas , &c. habeas , &c. and upon return of the said warrants , several indictments were preferred against several persons , for several pyracies and other offences committed upon the river of thames , below the bridge , besides such indictments as were preferred against pyrats and robbers upon other navigable rivers , and at high sea. one against conray bowes for that upon the th . of february , he , with a certain wherry , upon the river of thames , within the jurisdiction of the admiralty , did enter upon and into a certain lighter , lying over against debtford , &c. upon the same , &c. did , &c. inquiratur pro dom. reginâ si conraye bowes nuper grenwici in comitatu kantiae watermanus , vicesimo die mens . februarii anno regni dom. nostrae elizabeth . dei gratia angliae , franciae , & hiberniae , nunc reginae , fidei defensoris , &c. vicesimo octavo , in cymbâ quadam vectoria vocata a wherry super publicum flumen thamiseos infra jurisdictionem maritimam praefatae dom. nostrae reginae suae admiralitatis angliae , intentione malevola existent . ac deum prae oculis suis non habens , sed instigatione diabolica seductus , circa mediam noctem , cymbam quandam vectoriam dictam a lyghter , tunc super publico flumine rivi thamiseos ex opposito depforde creeke infra jurisdictionem praedictam ad anchoras residen . vi & armis , viz. baculis , pugionibus , & gladiis piratice & felonice praeparatis invaserit , ascenderit , fregerit & intraverit , ac quantitatem sive numerum centum quinquaginta fasciculorum , dict . faggots , valoris & precii decem denar . de bonis & cattallis thomae jackson tunc & ibidem praedictis die & anno & loco , in praedicta cymba vectoria dicta a lyghter sub custodia dict . thomae jackson infra jurisdictionem praedictam reperte . & existentem extra eandem cymbam & à custodia & possessione ejusdem thomae jackson pyratice & felonice ceperit furatus est , spoliavit , & asportavit contra pacem supradictae dom. nostrae reginae nùnc coronam & dignitatem suas , ac contra formam diversorum statutorum hujus regni angliae in contrariam editorum & praevisorum . billa vera . and one john barret , &c. was at the same time likewise indicted for that upon the first of march , in the same year , out of a certain hoy , called the peter of feversham , upon the publick river of thames , over against cox-key within the jurisdiction of the admiralty , riding at anchor , did pyratically and feloniously take and carry away one piece of linnen-cloth called lockeram containing , &c. together with divers other particulars set forrh in the said indictment , which runneth after the same manner with the former : inquiratur pro domina regina &c. si johannes barret , &c. billa vera . and another against john clements , inquiratur si johannes clements , &c. billa vera . another there was against winterhey , bridges , black , albons , saltash , and others , that they with two boats upon the river of thames within the jurisdiction of the admiralty , did by force of arms set upon a ship called the richard of dartmouth neer woolwitch , &c. and boarded her , and entered into her ; and one john terry the master and owner of her , did beat and evil intreat , &c. and that one ralph williams did with a sword of the price of five shillings , then and there feloniously and violently strike him the said john terry upon the arm , and upon the thigh , and gave him mortal wounds , whereof the said terry , at the same time , then and there died ; and that the said winterhey , bridges , black , albons , saltash , &c. were then and there present , aiding and assisting , encouraging and abetting in , and unto the said act , &c. the words of the indictment in brief are these . inquiratur , &c. si willielmus winterhey , nuper de &c. rogerus bridges nuper de , &c. thomas black , nuper de , &c. rogerus albons , willelmus saltash & alii in duabus cymbis , super publicum flumen thamiseos infra , &c. navem quandam vocatam , the richard portus dortmouth juxta woolwich , &c. vi & armis , &c. ascenderunt , &c. ac in johannem terry proprietarium & magistrum dictae navis , &c. insult . &c. ac radulphus williams ipsum johannem terry cum quodam gladio precii s. super brachio & in femore felonicè & violenter tunc & ibidem percussit , ac lethalia vulnera ei intulit , & praedicti willielmus winterhey , thomas bridges , thomas black , roger albons , willielmus saltash , &c. tunc , & ibidem fuerunt praesentes cum praefato radulpho williams , &c. ipsum , &c. de quibus lethalibus vulneribus praefatus johannes terry tunc & ibidem instanter obiit , & sic , &c. billa vera . another against richard jones , valentine luyson , and others for entering into a ship , over against blackwall , beating the master , and taking away cheese , butter , &c. which was found . billa vera . another against bernard hood , goodwin , hussey , and others for the like , in a ship upon the river of thames , over against erith , which was likewise found . billa vera . and these are indictments preferred and found against pyrats and pyracies , or sea robberies , committed upon several parts of the river of thames onely ; and that but within but a part of that th . year of queen eliz. if i should step into the year either before , or after , and either proceed forwards , or return backwards , i might fill a volumn with warrants or precepts of the same kind , with the before recited , and with indictments for offences of this nature , committed upon this very river of thames ; yet are there ( besides the indictments for pyracies , &c. at sea ) several other indictments for pyracies , and other offences of this nature committed upon other great rivers , beneath the first bridges , nearest the sea , as well as upon this ; and to shew the extent of the high court of the admiralty unto all ports , and great rivers whereso ever , as well as unto the sea , i shall instance in two or three of them ; the first of which shall be one that was preferred , and found in the same th . year of queen elizabeth , and at the same time with those before mentioned . and that was against william winterhey , humphrey smith , and others for pyratically setting upon a certain french vessell called the susan of mestrey , laden in the river of bourdeaux with french wines , and lying at anchor upon the publick river , called hampton water , within the jurisdiction of the admiralty , and then and there by force of arms , &c. making an assault , &c. upon daniel bretton , governour of the said ship , and taking away and stealing from the said ship to the value of l. and tun of french wine , of the value of l. of english money , of the goods and chattels of maturine gantier , &c. the indictment runneth thus . inquiratur , &c. si willielmus winterhey nuper de , &c. & umphridus smith de , &c. in cymbâ quâdam vectoriâ tunc super publicum flumen vocat hampton water , infra , &c. vi & armis , &c. navem quandam gallicam vocat . the susan de messhey in rivo burdugalensi vinis gallicis onustam , &c , ad anchoras exist . vi & armis , &c , ac in daniel bretton corrector . in dom. navis , &c. insultum , &c. ac eand . navem , &c. ad valentiam l. ac dolia vini gallici valoris l. monetae angliae , de bonis & cattallis maturini gantier , &c. ceperint , furati sint , &c. billa vera . and thomas james was indicted , for that upon severn , beneath the first bridge of the same , he did assault one john gethin , and others , and with a gun charged with bullets shots and hatt the said john gethin , that he then and there instantly dyed . the indictment runneth thus ; inquiratur si thomas james de &c. super quandam partem maris vocatam seavern , infra primum pontem ejusdem , &c. vi & armis in quosdam johannem gethin & alios insultum fecit , & praefatum johannem gethin cum quibusdam pilis tormentariis plumbeis , in bombardo , sive tormento pretii decem solidorum inclusis , &c. unam plagam mortalem , &c. de qua idem johannes gethin ad tunc & ibidem instanter obiit . i shall instance only in one notorious pyracy more committed upon the same navigable river of severn , upon which were indicted william holborne of southold in the county of suffolk gentleman , captain of a man of warre called the hopewell of weymouth melcombe regis ; edward wright of berry in the same county gentleman , otherwise called captain careless , captain of a french man of warre of the burthen of fourty tuns ; henry ward of barstable in the county of devon , captain of the ship the mary of stonehouse ; william sweet of stonehouse in the county of devon mariner , and more by name , besides others in general : for that upon the second day of august , &c. they being in the said three ships , furnished in a warlike manner , between the maritime places called wormeshead and oxmuch in the river of severn , within the maritime jurisdiction of the admiralty of england , being pyratically and feloniously gathered together , did by force of arms , viz. with swords , guns , &c. in the three said robbing ships , pyratically and feloniously appointed between the said wormshead and oxmuch within the said jurisdiction , the day and year aforesaid , pyratically and feloniously set upon , climb up into , break and enter into merchants ships called the margaret of caermarthen , the little matthew of caermarthen , the tasker of milford , and the margaret of burrey , laden with divers goods , wares and merchandizes at the fair of st. james , then lately held at bristol , whilst they were sailing from the port of bristol , towards the port of caermarthen , and did by force of arms assault and make affray upon , beat and evil intreat , and put in fear of their lives james joanes , thomas richards , william tasker , and griffith jones , governors and masters of the said ships under god , and divers other persons , mariners of the said ships , unto the said pyrats and robbers unknown , being then and there the said day and year in the said merchants ships in the peace of god and their said soveraign the queen , and three packs of woollen and linnen cloth , dowlas , cress-cloth , holland , cambricks and lockerams , to the value of three hundred pounds of english money , two great chests of velvets , taffaties , and other goods to the value of two hundred pounds , one iron chest to the value of twelve pounds , one pack of fine dowlas , lockerams , cress-clothes , hollands , cambricks , silk lace , and other goods to the value of one hundred and sixty pounds of like english money , one great chest of millian fustians and callicoes , and other merchandizes to the value of sixty pounds , and a chest of large hats , mantles and clothes , to the value of thirty pounds of like english money , of the goods and chattels of griffith atkins and henry philips of carmarthen , merchants , then and there , the day and year aforesaid , between the said wormsbead and oxmuch , upon the said navigable river , within the jurisdiction of the admiralty aforesaid , being and remaining in the custody and possession of the aforesaid james joanes , thomas richards , william tasker , and richard joans , masters under god of the ships , the margaret of caermarthen , the little matthew of carmarthen , the tasker of milford , and the margaret of burry , out of the said ships from the said masters , and out of their custody and possession , did then and there pyratically , feloniously , and violently take , steal , spoyl , and carry away , contary to the peace of the soveraign lady the queen , her crown and dignity , and contrary to the form of divers statutes to the contrary made and provided : the indictment it self runneth in the same forme with those before mentioned , viz. inquiratur pro dominâ reginâ si willielmus holbourne nuper de southould in comitatu suffolciae gen. nuper capitaneus navis militaris , the hopewell , portus de weymouth melcombe regis ; edvardus wright nuper de berrie in comitatu suffolciae gen. alias dictus captain carelesse navis gallicae militariter instructae oneris quadraginta doliorum vel circiter : henricus ward nuper de barstable in comitatu devon. nuper capitaneus naviculae vocat . the mary , de stonehouse : willielmus sweet nuper de stonehouse in comitatu devon. marinarius , nuper proprietarius dictae naviculae vocat the mary , &c. ac diversi alii pyratae , & malefactores incogniti , secundo die mensis augusti , anno regni , &c. in praedictis tribus navibus militaliter instructis tunc , &c. as in fully set down in english . now to shew further that the cognizance of all matters happening upon these ports , and havens , did and doth belong unto the jurisdiction of the admiralty properly , and entirely , and to no other jurisdiction , i shall instance in one record of many , whereby it will appear that when the city of london ( who by their charter have more power and priviledge upon the river of thames , then any judicatory whatsoever , except the admiralty ) have endeavoured to take cognizance of matters of this nature , the same have been demanded from them by the admiralty court. and that record sheweth that one john seaward being committed to the counter in woodstreet , london , for suspision of drowning a boy in the river of thames , the sheriff of the city of london was commanded by the admiralty to bring the said seaward , before the said court of the admiralty , upon the th . of march , in the th . year of queen elizabeth , which precept was returned by thomas dixon on the behalf of the sheriff of london , together with the said john seaward accordingly , and the precept and return thereof run in these words . carolus dominus howarde , baro de effingham praeclari ordinis garterii miles , magnus admirallus angliae , hiberniae & walliae , ac dominiorum & insularum earundem , villae callisiae , & marchiarum ejusdem , normanniae , gasconiae , & aquitaniae , classisque et marium dictorum regnorum angliae et hiberniae praefectus generalis , ac socii nostri justiciarii ad omnes et singulas proditiones &c. ut in priori praecepto in hoc capite citato vicecomitibus london , nec non williemo blunt custodi computator . anglice the counter , in vico dicto woodstreet , seu ejus deputato cuicunque salutem : ex parte prefatae dom. nostrae reginae tibi praecipimus , et mandamus quotenus non ommitt . propter aliquam libertatem , seu franchesiam , quin sub poenâ centum librarum de bonis vestris quibus cunque ad opus et usum dictae dom. nostrae reginae et nostrorum levand . wherry-man super suspitionem submersionis pueri cujusdam in rivo thamiseos , infra jurisdictionem praed . apud southwark in praetorio , ibidem die veneris proximo quindecimo die mensis instantis martii circa horam nonam in aurora , unà cum causis ejus detentionis , si quae coram vobis remanent his respondend . quae sibi ex parte praefatae dom. nostrae reginae , cum venerit , objicientur ; & hoc ●illatenus omittatis sub poena praedicta & periculo incumbenti . datum londini in suprema curia admirallitatis predicta , sub sigillo ejusdem curiae th . die martii , anno dom. . stylo angliae , reginaeque &c. anno . jul. caesar hareward . endorsat . thomas dixon ex parte vicecomitis london introduxit hoc praeceptum una cum retrodicto joh. seaward , die veneris . martii , . i might here take an occasion to set forth a number of records of the admiralty , both of this time , before it , and since , which would set forth the multiplicity of actions entered , proceeded in , and sentenced in the admiralty court , for injuries , wrongs and trespasses done upon the river of thames , and other ports and havens , and likewise shew that when parties have sued in the courts of guildhall london , or other courts , for any matter of such injury , wrong , or trespass , done unto them , upon the river of thames , or such other ports , that they have been called into the admiralty court , and there been proceeded against , and punished for their contempt against that court ; and if i should collect them altogether , and here set them forth , they would appear very many for one of the instances set down by sir edward coke in his th . chapter of his fourth book of his institutes , against the power and jurisdiction of the admiralty upon the ports and havens . and yet perhaps it may be said , that herein the admiralty had usurped a power which belonged not thereunto ; but when as many instances may be set against one , it is easily judged on which side the usurpation lyeth ; but to decide the question more clearly , i shall instance in some few of many of the common law 's own records , which plainly determine this point of jurisdiction upon the ports , and havens , against the instances brought by sir edward coke in his said th . chapter against the jurisdiction and power of the admiralty upon those places . chap. xviii . that by writs de procedendo out of the chancery , upon supersedeas from thence granted , the admiral is acknowledged to have jurisdiction upon the ports and havens . what hath been already said , i conceive might be sufficient , to convince the judgements of indifferent men , that the ports , creeks , and havens of the sea , are within the jurisdiction of the admiralty , and not within the bodies of counties . but , because i know this argument may meet with some particular contradictors , who will be apt rather to adhere to one president out of the courtes at westminster , then be convinced by very many binding authorities and authentick proofs of this nature , i shall make this truth likewise evident by both writs de procedendo , awarded upon writs of supersedeas , out of the chancery , and by consultations awarded upon prohibitions out of the courts of common law. the ship the trinity of london , alias the trinity of hull-bridge , lying at anchor upon the river of thames , belonging unto one thomas pierce , was there arrested and taken into the possession of the admirall , and a supersedeas was brought ; but termino mich. th . hen. . a writ de procedendo was awarded in these words . henricus octavus dei gratiae angliae , & franciae rex a fidei defensor , dom. hiberniae , & in terra supremum caput anglicanae eccl . praeclarissimo consanguineo suo , henrico duci richmond & som. magno admirallo angliae , walliae , & hiberniae , normaniae , gasconiae , aquitaniae , ejusve locum tenenti & commissario sal . licet nos nuper volentes certis de causis certiorari super causa arrestationis five attachiamenti cujusd . navis vocat . the trinity of london , aliàs the trinity of hullbridge , una cum suo apparatu tunc infra jurisdictionem vestram , ad anchoram residem . ad quendam thomam pers jure dominii sui quasi pertinentem , sub custodia vestra axistentem ut dicebatur , vobis mandavimus quod causam praedictam cum omnibus eam tangentibus quocunque nomine idem thomas in causa illa censeret . nobis in cancellariam nostram ad certum diem in brevi nostro contentum ubicunque tunc foret sub sigillo vostro distinctè & aperte mitteretis & breve nostrum praedictum . quibusdam tamen certis de causis coram nobis in cancellaria nostra praepositis mandamus quod in causa illa cum ea celeritate qua jure & secundum legem & consuetudinem in curia admirallitatis angliae hactenus usitatum poteritis , procedatis dicto brevi nostro vobis prius in contrarium inde directo non obstantc . t. meipso apud westm . die , anno dom . vicesimo septimo . m crumwell . john gilbert of ratcliffe sued thomas linsey of woolwitch , fisherman , in the admiralty court for certain wrongs and injuries done unto him upon the river of thames . thomas linsey suggesteth in chancery , that he was there sued pro diversis negotiis , contractibus , & querelis , ac aliis rebus infra corpus comitatus cantiae factis , & emergentibus , and obtaineth a b supersedeas : john gilbert being dead , dyonisia , his relict , termino hillarii , . hen. had a writ de procedendo , which i have here set down . henricus octavus c dei gratia , angliae , franciae , & hiberniae rex , fidei defensor , & in terra ecclesiae anglicanae & hiberniae superemum caput , charissimo consanguineo & consiliario suo joh. vicecomiti lisle , ordinis garterii nostri militi , baroni de malpas & somerseii , domino basset & tyasse , magno admirallo nostro angliae , hiberniae , walliae , villae & merchiarum nostrarum cales , nec non gasconiae , aquitaniae ejùsve in curiâ nostrâ principali admiralitatis nostrae angliae locum tenenti , officiali & commissario generali , seu alii ejusdem curiae nostrae praesidi cuicunque & eorum cuilibet salutem . cum nuper ex parte dionisiae relictae , & executricis johannis gilbert dum vixit de ratcliffe in comitatu nostro middlesexiae defuncti nobis graviter conquerendo monstratum extitit quod cum idem johannes dum vixit quendam thomam lindsey de woolwich in comitatu nostro cantiae , fisherman , de & super quodam contractu civili & maritimo pro quibusdam rebus & injuriis aliis eidem johanni infra nostram jurisdictionem dictae admiralitatis nostrae angliae super publico flumine rivi nostri thamisiae infra fluxum & refluxum maris , ultra pontem civitatis nostrae london versus mare , initis , habitis , factis & illatis , secundum d●bitam legis formam , & consuetudinem curiae nostrae admiralitatis praedictae , coram vobis in eadem curia implitaverit , quòdque idem thomas lindsey cognitionem ejusdem curiae nostrae admiralitatis in ea parte fraudulenter & maliciose satagens , declinare & debitum legis processum ibidem minus juste impedire , suggerens inter alia coram nobis in curia chancellariae nostrae quod vos eundem thomam ad respondendum praefato johanni dum vixit coram vobis in dicta curia nostra admiralitatis nostrae angliae praedictae de diversis negotiis , contractibus & querelis , ac aliis rebus infra corpus dicti comitatus nostri cantiae , factis & emergentibus , graviter distrinxistis & multipliciter inquietastis minus juste in ipsius thomae dampnum non modicum & gravamen , ac contra statutum domini richardi nuper regis angliae post conquestum secundi anno regni sui quinto decimo apud westm editi . et eo praetextu dictus thomas brevem nostrum de supersedendo datum apud westm . vicesimo septimo die maii , anno regni nostri tricesimo quinto vobis minus rite dirigi procuravit , cujus quidem brevis nostri vigore , vos in placito praedicto huc usque supersedistis in dispendium . ideo quibusdam certis de causis coram nobis in dicta cancellaria nostra propositis , nos in ea parte juste moventibus , & maxime pro eo quod dictum brevem nostrum de supersedendo ab eadem curia chancellariae nostrae improvide emanavit , quia dictus thomas pro rebus & injuriis infra nostram jurisdictionem admiralitatis nostrae praedictae factis & emergentlbus juste tractatus existit , prout per quendam libellum coram vobis in dicta curia nostra admiralitatis nostrae praedictae oblatum , & responsiones dicti thomae lendsey ad positiones ejusdem ibidem virtute sui praestiti juramenti facti , & coram nobis in dictâ cancellaria nostra ostensas plenius apparet . nos nolentes quòd per hujusmodl malitiam & suggestionem cognitio in praefata curia nostra admiralitatis nostrae angliae taliter derogetur , vobis mandamus quod in placito illo secundum legem & consuetudinem dictae curiae nostrae admiralitatis nostrae angliae praedictae procedatis , & partibus praedictis justitiae complementum in ea parte haberi & ministrari faciatis cum effectu dicto brevi nostro , aut aliqua alia prohibitione vobis inde in contrarium direct . in aliquo non obstanti t. meipso apud westm . xix . die februarii anno regni nostri tricesimo sexto . southwel . now it is plain this was an action brought in the admiralty for , or concerning certain things and injuries done unto the agent , within the jurisdiction of the admiralty ; and the place which is here said to be within the jurisdiction of the admiralty , is a port or haven , set down in express words , viz. the publick river of thames within the ebbing and flowing of the sea , beyond london bridge towards the sea , infra jurisdictionem admiralitatis angliae , super publico flumine rivi thamisiae infra fluxum et refluxum maris , ultra pontem civitatis london , versus mare , &c. and this action is likewise there said to be brought according to due form of law and custome of the admiralty court , secundam debitam legis formam et consuetudinem curiae nostrae admiralitatis praedictae coram vobis in eâdem curiâ implacitaverit . and lindsey for suggesting these injuries done upon the river of thames , to be done in the body of the county of kent , is said to have endeavoured fraudulently and maliciously to decline the cognizance of the court of the admiralty , and unjustly to hinder the due course of law there : cognitionem ejusdem curiae nostrae admiralitatis in eâ parte fraudulenter et malitiosè satagens declinare et debitum legis praecessum ibidem minus justè impedire . and he is said unlawfully to have procured that writ of supersedeas to be directed to that court , breve nostrum de supersedendo vobis minus ritè dirigi procuravit . and that writ of supersedeas is said to have gone out rashly and unadvisedly , improvide emanavit , because lindsey was justly sued there for things and injuries done and arising within the jurisdiction of the admiralty , pro rebus & injuiis infra nostram jurisdictionem admiralitatis nostrae praedictae factis et emergentibus , juste tractatus extitit . and it is there declared , that the cognizance of the admiralty court shall not by such malice and suggestion be wronged , nolentes quod per hujusmodi militiam et suggestionem , cognitio in praefata curia nostra admiralitatis nostrae angliae taliter derogetur : and the court commanded to proceed according to law , &c. notwithstanding the supersedeas or any other prohibition directed to the contrary . so by these writs de procedendo out of the chancery , the admiral is acknowledged to have jurisdiction upon the ports and havens ; and many more of the same nature might be instanced in , which for brevity sake i omit . chap. xix . that by consultations out of the courts of common law , upon prohibitions thence granted , it is clear the admiral hath jurisdiction upon the ports and havens . as it is manifest by writs de procedendo , out of the chancery upon writs of supersedeas thence granted , that the admiral hath jurisdiction upon the ports and havens ; so it is likewise evident by consultations out of the common law courts at westminster , upon prohibitions from thence upon false suggestions granted ; that the admirals power and authority doth extend unto the cognizance of such causes as do from thence arise ▪ some of which i shall instance in . patrick landy of broheda in ireland sued richard prideaux in the admiralty court pro qu●●quaginta les dicars pellium salsorum , libelling that the said richa●d prideaux had infra fluxum & refluxum maris received and taken into his hands and possession , the goods and merchandises aforesaid , and kept the same , or otherwise had de eitfully alienated them , or disposed of them , ipsum richardum prideaux bona res & merces &c. in manus et possessionem sui ipsius richardi infra fluxum et refluxum maris accepiss● et sumpsisse , eademq , tunc penes se hab●●sse , seu saltem eadem dolo malo alienasse . prideaux suggesteth that these fifty dickers of hides being in certain warehouses at padstow in the county of cornwall , infra corpus ejusdem c●nut●ûs , were by george syddenham and george francis there sold and delivered unto him , and by him received and kept , and convetted to his own use , and that he was unjustly vexed and sued in the admiralty court for the same , contrary to the statutes of and of r . and obtained a prohibition . but the matter being argued in court , and the goods and merchandises being found to have been in the possession of the said prideaux within the jurisdiction of the admiralty , viz. within the ebbing and flowing of the sea , die junii eliz. a consultation was awarded , which saith , quia tamen justiciariis nostris apud westmon . per debitam examinationem in hac parte factam , satis constat quod praedicta curia nostra admiralitatis in hujusmodi placitis , dummodo res sic se habeant , aliqualiter in eisdem impediriseu retardari non debeat . the consultation i shall here set down at large , whereby both the libel , suggestion , prohibition and consultation will appear . elizabetha dei gratiâ , angliae , franciae , & hiberniae regina , fidei defensor , &c. venerabili viro julio caesari legum doctori supremae curiae admiralitatis angliae locum tenenti , aut alio fudici in hac parte cuicunque ejusdem curiae salutem . cum nuper ostensum est nobis quod in statuto in parliamento domini richardi nuper regis angliae secundi post conquestum , apud westm , anno regni sui tertio decimo tent . edit . inter alia inactiatum fuisset authoritate ejusdem parliamenti quod admiralli & eorum deputati se ex tunc de aliqua re facta infra regnum angliae nisi solummodo de rebus factis super altum mare , prout tempore domini edwardi quondam regis angliae , avi praedicti quondam regis richardi secundi debite usum fuisset , nullatenus intro-mittant . cumque etiam per quendam alium actum in parliamento praedicti quondam regis richardi secundi anno regni sui quinto decimo tent . edit . inter caetera declarat . ordinat . & stabilit . extitisset authoritate ejusdem parliamenti quod de omnibus contractibus , placitis & querelis , & de omnibus rebus factis sive emmergentibus infra corpus comitatus tam per terram quam per aquam ; ac etiam de wrecco maris curia admiralitatis nullam habeat cognitionem , potestatem nec jurisdictionem : sed quod sint omnia hujusmodi contractus placita & querelae , atque omnia alia emergentia in corpus comitatus , tam per terram quam per aquam , ut praedictum est , ac etiam wreccum maris triat . terminat . discuss . & remediat . per leges terrae , & non coram admirallo , nec per admirallum , nec ejus locum tenent . quovis modo , ac nuper ex insinuatione richardi prideaux de padstow in comitatu cornubiae generosi accepimus & intelleximus quod quidam patricius landy de broheda in regno nostro hiberniae mercator , statuta & leges praedicta minime ponderans , sed machinans ipsum richardum contra debitam legis hujus regni angliae formam , & contra vim , tenorem & effectum statutorum praedictorum . et de & pro quibusdam bonis rebus & mercibus , viz. quinquaginta lez . dickers pellium salsorum eidem richard. per quosdam georgium sydenham & georgium francis apud villam de padstow in comitatu nostro cornubiae in quibusdam domibus vocat . waterhouses ibidem infra corpus ejusdem comitatus , & non super altum mare venditis ac deliberatis , ac per ipsum richardum ibidem receptis habitis & detentis , & ad upsum suum proprium conversis , ac pro ejusdem captione , possessione , conversione , & detentione eorundem indebitè & injuste gravare , opprimere & fatigare ipsum richard. pro eisdem rebus & mercibus , ac pro praedictis captione , possessione , conversione & detentione eorundem inter alia bona res & merces per praefatum patricium in eâdem curiâ coram vobis libellando spec . indebitè injustè gravare , oppimere & fatigare ipsum ricardum pro eisdem rebus & mercibus ac aliis , ac pro praedictorum captione , possessione , conversione , & detentione eorundem in curiâ admirallitatis coram vobis aut alio judice in hac parte competente quocunque vestrum locum tenente traxit in placitum caute , false , & subdole in eâdem curiâ admirallitatis coram vobis aut aliquo vestrum libellando , querelando , & allegando eundem richardum prideaux , bona , res & merces per praefatum patricium in eadem curia , coram vobis sic libellando specifice in manus , & possessionem sui ipsius richardi infra fluxum & refluxum maris accepisse , & sumpsisse eadem , tunc penes se habuisse , seu saltem eadem dolo alienasse , eundumque richardum in eadem curia coram vobis vel aliquo vestrum , occasione praedicta comparere , & eidem patricio ibidem de & in praemissis respondere tanquam in causa civili & maritima , licet eadem bona , res & merces eidem richardo in forma praedicta vendita & deliberata vicesimo die februarii , anno regni nostri tricesimo tertio , apud praedictam villam de padstow praedictam infra praedictum corpus comitatus cornubiae praedictae ; & non super altum mare per praefatum georgium sydenham & georgium francis eidem richardo prideaux , ad opus & usum ejusdem richardi deliberata fuere , minus juste abstrinxit : ac licet richard. idem materiam superius contentam in praedicta curia admiralitatis coram vobis alióve judice antedicto in exonerationem ipsius richardi in praemissis sepius placita verit & allegaverit , ac illam inevitabili veritate & testimonio probare ibidem obtulerit , vos tamen aliusve judex dictae cu●●ae admiralitatis antedictae , placitum , & allegationem admittere penitus recusastis seu recusavit , praedictusque patricius ipsum richardum in bonis , rebus & mercibus praedictis in forma praedicta venditis & deliberatis nec non in expensis ex parte , & per partem praedicti patricii , & suorum sociorum sive complicum in eadem curia admiralitatis fact . condemnari & condemnatum ad effectualem solutionem eorundem cogi & compelli per vos aut alium judicem curiae illius , & per vestram vel ejus diffinitivam sententiam sive finale decretum totis suis viribus conatur , & indies machinatur , vosque statuta praedicta mimime ponderantes placitum praedictum de & super praemissis coram vobis alióve judice antedicto nuper tenuistis , vel ad tunc tenebatis , sic diffinitivam vestram sententiam & finale decretum inde fulminare & pronunciare properavistis seu pro peravit in nostri contemptum & ipsius dampnum non modicum & gravamen , & contra formam & effectum statutorum praedictorum , unde idem richardus in curia nostra coram justiciariis nostris apud westm . auxilium & munificentiam nostram humillime implorando supplicasset sibi de remedio congruo provideri per quod nos jura coronae nostrae regiae , ac leges & statuta regni nostri angliae prout vinculo juramenti astringebamur manutenere volentes , ac contra eadem volentes ligeos nostros sectis vel suspensionibus violari aut inquietari illicitis , vobis & cuilibet vestrum per brevem nostrum prohiberemus & praeceperimus firmiter injungendo ne ulterius placitunt praedictum seu quicquid aliud praemissa aliqualit . tangent . seu tangens versus praefatum richardum ulterius teneretis , seu aliquis vestrum teneret quovismodo , nec quicquam inde attemptaretis vel attemptari procuraretis quod ipsius richardi praejudicium aut nostri seu coronae nostrae regiae , aut legis & consuet . vel statutorum regni nostri angliae contemptum sive derogationem cadere valeret quovismod , ac de ipso richardo occasione hujusmodi placiti citando , excommunicando , molestestando in aliquo seu gravando supersederetis & desisteretis , & quilibet vestrum supersederet & desistereret omnino ipsum richardum penitus absolventes & exonerantes de eisdem . quia justiciariis nostris apud westmon . per debitam examinationem in hac parte factam satis constat quod praedicta curia nostra admiralitatis in hujusmodi placitis dummodo res sic se habeant aliqualiter in eisdem impedire seu retardari non debeat , at quod praedictus patricius brevem nostrum de consultatione vobis dirigendum in causa praedicta habeat ; ideo vobis mandamus quod praedictus patricius in causa sua praedicta in praedicta curia nostra admiralitatis praedictae licitè procedere & facere valeat quod ad praedictam curiam nostram admiralitatis noveritis pertinere praedicto brevi nostro de prohibitione utcunque inde forma praedicta directo in aliquo non obstanti . t. e. anderson apud westmon . decimo nono die junii anno regni nostri tricesimo octavo . culwicke scott . shortly after the granting of this consultation by the lord chief justice anderson , and before the cause could come to hearing , or to be fully determined in the admiralty court , prideaux upon the same suggestion procureth another prohibition from the lord chief justice popham , and thereby again stayed the proceedings in the admiralty court , untill the th year of the queen . but in that year vicesimo septimo die junii , upon reexamination of the poynt , another consulation was awarded agreeable with the former ; and the admiralty court was then a second time set free to determine the cause in these more express words : ideo vobis mandamus quod praedictus patricius in causa praedicta quoad omnes hujusmodi res & contractus praedict . super altum mare , vel super ejus necessaria dependentia , ita quod vos vel praedictus patricius de aliquibus rebus , contractibus infra corpus alicujus comitatus regni nostri angliae factis ne intromittatis , &c. in curia admiralitatis praedictae coram vobis , seu aliquo vestrum licite procedere & facere valeat , &c. now here doth this consultation put a plain distinction between the bodies of counties and the ports and havens , here called necessaria dependentia alti maris ; and indeed they are such necessary dependants of the sea , that they may very well , nay they must be called mare , the sea , though not altum mare , the high sea ; otherwise needless , and altogether in vain was this distinction of mare & altum mare , of the sea , and the high sea , and main sea , if the ports , creeks and havens were not mare , sea , and those parts of the sea further remote from the land , altum mare , the high or main sea. and then let us consider that though upon every suggestion , whereon a prohibition is in such cases awarded upon the statute of the th of richard the second , the words sur le meer in the same , be in the prohibition translated super altum mare ; yet will not those words sur le meer , nor any other words in that statute bear any such construction ( as by the said statute , if lookt into , will appear , which statute shall be hereafter set down at large according to the parliament roll in the tower. ) and then is there nothing at all contained in that statute , which can so much as seem to limit the admiral to the high seas , or exclude his jurisdiction from extending to the ports , creeks and havens , which are sea , though not high sea . and so the very foundation whereon all the arguments which tend to the deprivation of the admiral of his jurisdiction upon the ports and havens are grounded , is clearly taken away . patrick landy likewise sued john prideaux of padstow pro tribus millibus centenis sepi libellando eundem johannem prideaux bona , res & merces praedicta ac alia bona , res , & merces in manus & possessionem sui ipsius johannis infra fluxum & refluxum maris accepisse & sumpsisse , eademque tunc penes se habuisse , seu saltem eadem dolo alienasse , &c. prideaux upon suggestion that those goods and merchandises were per quendam georgium sydenham nuper capitaneum navis anglicanae vocat . the black boat apud villam de padstow in comitatu cornubiae , infra corpus ejusdem comitatus , & non super altum mare vendita & deliberata , & per ipsum johannem ibi recepta , habita & tenta , & ad vsum suum proprium conversa , &c. and obtained a prohibition . . feb. elizab. a consultation is awarded in the same words with the other . the same patrick landy sued digorius halman in the admiralty , pro quinquaginta dycariis pellium hibernicorum , libellando quod idem digorius praedictas quinquagintas dycarias pellium sub nomine bonorum , rerum & mercium in manus & possessionem suas infra fluxum & refluxum maris accepisset & sumpissset , easdemque tunc penes se habuisset , & saltem easdem dolo alienasset , &c. digorius halman upon suggestion that gremfield halse , nicholas halse , and john hoyell alias howele at plymoth in the county of devon , infra corpus ejusdem comitatus devoniae , & non super altum mare fuerunt possessionati de dictis quinquaginta dycariis pellium , &c. & pro certâ denariorum summa barganizarunt & vendiderunt eidem digario halman , ac quibusdam johanni martin , & thomae crane praedictas quinquaginta dicarias pellium , &c. and obtained a prohibition . vicesimo sex to maii eliz. a consultation was awarded . t. edvardo anderson . and as before , so here in this same cause , and upon the same suggestion , a new prohibition was awarded by the lord chief justice popham . but maii eliz. a consultation was again awarded , as in the before mentioned cause , and many more i might likewise instance in , and set forth both the prohibitions and consultations at large , but that i should thereby too much enlarge this treatise . now as by the writs de procedendo awarded out of the high court of chancery , upon supersedeas in the former chapter set down , so by the consultations upon prohibitions awarded out the courts of common law here set forth , i hope it is evident enough , that the admirals jurisdiction extendeth to the ports and havens , and to all things done thereon . vide etiam quae sunt in cap. . libri tertu specificata . chap. xx. that the ports , havens , and harbours where ships do lie or ride at anchor , are not within the bodies of counties , but that the jurisdiction which the admiralty hath anciently had thereon , hath been by act of parliament reserved thereunto . now seeing that the ports and havens , whereon ships and other vessels do ride and lie at anchor , are not only of a different nature from the land , but are absolutely consisting of the same nature with the sea , and are sometimes more drawn in , and sometimes again further stretched out ; and are from antiquity both by antient authors and ancient records termed and called the armes of the sea , as indeed most properly they still are , i cannot easily be induced to think that these ports or havens , by being only incompassed on both sides with several counties , and touched upon by the banks thereof , can be said to be within the body of either of those counties , or so much as the least member , part , or parcel thereof , or so much as properly be said to be within the skirts thereof . i must confess that many particular statutes , and new laws have been made , directing such and such things to be done or not done , either by sea , or upon any port or haven , which by the civil and maritime laws had not been formerly in the same manner , or perhaps not so fully directed : and the cognizance of such matters by the same statutes and laws , may seem to belong unto other courts , as well as unto the admiralty , by reason whereof some have often reached at all , and have strove to hold more in one hand then they could grasp in both their armes . but such things both upon the sea , and upon the ports and havens , as have been anciently determined by the admiralty , according to the laws civil and maritime , have not been by such statutes or new laws really taken therefrom , nor were ever intended to be : but the same have been constituted and made in affirmance of the power and authority of that court , as wel upon the ports and havens as upon the high seas ; and have been by express words continued thereunto , and the cognizance of many such matters , by such new laws appointed , have been directed unto that court. i shall instance only in one statute that sheweth the same , and then leave this subject , and breake my self unto another . by the statute of hen. . cap. . a rate was set what should be paid for the freight or portage of several particular sorts of merchandizes from the port of london to other places , and from thence to london ; and this being a thing mutable , which could not be formerly settled for a perpetual law , according to any rules or laws civil or maritime ( though the like had been formerly done by the admiralty pro tempore , as appeareth by the inquisition taken at quinborow , and the other statutes and articles of the admiralty before several times mentioned ) the cognizance of the excessive freight taken for transportation of these particular sorts of merchandizes , was by the same statute to be taken in the courts at westminster . as for the forfeiture of the double value of the freight so taken , the one half to the king , the other half to the informer , yet the excessive rates for freight in general taken for transportation of any goods whatsoever , and from and to any port or place whatsoever , having been punishable by the admiralty , that power is no more taken from that court by this clause , then the tryal of pyracy , &c. by the civil and maritime laws is from thence taken by the statute of h. . . cap. . & an . . cap. . which giveth a power to that court to try the same offences after another manner , which is a thing by all of both professions acknowledged . another clause there was contained in the said statute , that if any stranger , denizen , or not denizen , should lade on board any english bottom any of their goods , wares , and merchandizes to be transported to any forraign port , that they should pay no other custome or subsidy therefore , then such as the english paid : but in case that they did laid their said goods , wares , and merchandizes aboard the ships or vessels of forreigners , then they should pay such custome or subsidy as had been usually paid by forreigners . this being a thing newly by that statute appointed , and not determined formerly by the civil and maritime laws , whereby the admiralty proceedeth ; yet was it by the same statute provided , that if there should be no such ships or vessels of england , or dominions of the same , at or in the port , haven , or place where the said strangers , aliens , or denizens , their servants or factors would freight or lade their wares and merchandizes toward the outward regions , that then if the said stangers or denizens , their factors , atturneys or servants before he or they did lade , freight , or convey the said goods , wares , commodities , or merchandises into any strange ship or vessel , did notify and declare the same lack or want of such english ships or vessels , unto the lord high admiral of england for the time being , or his lieutenant , deputy , or deputies , if &c. and did obtain his or their certificate to be made under his or their seal to whom such notice or declaration was to be made of lack and want of such english ships and vessels , that then it should be lawfull for them to freight and lade their said wares and merchandises in any strange ship or vessel , at that time being in the same port or haven , and to pay none other susidies or customes therefore but as the english merchants did use , and ought to do by the laws and customes of england . and it is enacted by the said statute , that the owner and owners , master and masters , and other governour or governours of ships , and every of them to his or their power , and for as much as in him or them should be , shall provide that all wares and merchandises which shall be by merchants , their factors or servants , or any of them , brought into any ship or vessel , shall be honestly and in good order saved and kept . and under that clause it is provided , that if any merchant , stranger , or other find himself aggrieved or damnifyed by negligent keeping of the said merchandises or wares , or by long delaying or protracting of the time in taking the voyage , by the said owner , his factor , master or any the mariners of the said ship , otherwise then shall be agreed betwixt the said merchant , his factor , atturney , or servant ; and master or owner in or by the said charter-party , ( not being letted by wind or weather ) shall and may have his remedy by way of complaint before the lord admiral of england for the time being , his lieutenant , or deputy , against the said owner or owners , master or masters , governour or governours , or his or their factor or factors ; which lord admiral for the time being , his lieutenant or deputy shall and may summarily and without delay , take such order , and give such direction therein , as shall be thought to his or their discretions most convenient , and according to right and justice in that behalf , which is in affirmance of the civil laws before mentioned . but mr. poulton rendreth this statute obsolete : and for the first part of it , which setteth a rate what shall be paid for the freight or portage of goods and merchandises from the port of london to other places , and from thence to london . i must needs agree with him , that the same may , or necessarily must be obsolete and out of use ; for that since the time of making of the said statute , the rates and prizes for cables , anchors , and other tackle , furniture , victual , and other provisions , have been much altered and encreased , nor indeed are , or can the ships themselves either be built or bought at such rates or prizes as they then were , so that they cannot be let for the same freight they then were . for the other clause of forreigners transporting their wares and merchandises in english bottoms , to pay no more custome then the english , whether the customers have disused the same , and so made it obsolete , or not , i know not . but in case they have so done ; i know no warrant or necessary cause they have for so doing ; but for the last mentioned clause , that masters and owners of ships shall provide , that all the merchants wares and merchandises shall be in good order saved and kept , and that the merchant which shall thereby , or by delay or protracting of the voyage ( without just cause ) longer then the time agreed by the charter-party , find himself aggrieved , shall and may have his remedy in the admiralty . this is only in affirmance of the law of that court , and was both before the making of that act , and hath been ever since used and practised in that court , and cannot by the disuse of it at the common law ( where it is not by that act at all to be used ) be made obsolete , but is by the practice and use of it , where it is appointed to be used , held , continued , and preserved from being made obsolete there . now no man can say , but that this saving and keeping of merchants goods and merchandises honestly , and in good order , is clearly meant of such saving and keeping them honestly and in good order , as well whilest the ship or vessel remaineth in the port or harbour , as when she cometh at high sea ; and the delaying and protracting of time in taking of the voyage with the next good wind , according to the time agreed on by the charter-party , is most certainly a wrong or injury done upon the port or haven , and the jurisdiction of the admiralty in causes of this nature upon the ports and havens by this statute affirmed and confirmed . and moreover the very breach of the charter-party , though made at land , is by this act affirmed to be cognoscible in the admiralty , which bringeth me in the very next place upon that point and particular , wherewith i shall begin the next book . the maritime dicaeologie , or sea-jurisdiction . the third book . chap. i. that all differences arising from contracts concerning maritime affairs ought to be tryed in the admiralty court , and the reasons thereof . having been thus long upon the ports , and havens , it is now full time to begin to think of the discharging of the ship , and the delivery out of her lading to the merchants , to whom the same belongeth , and for to come to the caulking , fitting , trimming , preparing and furnishing of her with victual , tackle , apparel and furniture , &c. and manning her with seamen and mariners for some voyage , and taking in of her lading from the merchants or their factors to be transported in the same . in the effecting of all which several men of several occupations , trades , and imployments , are severally to be contracted with , as well at land , as upon the port and haven . the validity and invalidity of all which contracts , sir edward coke would have to be cognoscible , tryable , and determinable in the common law courts , according to the course of the common law , and not in the admiralty court , or according to the proceedings , rules , and grounds of the civil and maritime laws . but i must here likewise adventure another dispute with him upon this point . and first i shall offer some reasons to the contrary , and then endevour an answer unto his arguments . and after both , i shall set forth what laws have been made for the determination of such differences as shall arise upon such contracts , by which laws certainly they are still to be determined . and first i say that by ships , and shipping , this nation is secured and preserved from foraign invasions , and by trade and commerce with foraign nations not a little enriched ; and neither shipping nor trade , can be upheld without the welfare of merchants , owners of ships , fitters , furnishers of them , mariners , &c. and this welfare of the merchant , owner , fitter , furnisher , and mariner , cannot be maintained without a settled jurisdiction of admiralty , regulated according to the civil and maritime laws , setled amongst , and known unto all maritime nations . because ( as it is well known ) all of them have dealings with such foraign nations abroad , and such foraign nations with them at home , who both expect and will have the same justice meted to them , that they measure unto others ; else will they both forbear to trade with that nation , which shall deny them that justice , and likewise deny that nation to trade with them . now it is most certain that the municipal laws of this kingdom , are so different from the civil and maritime laws , that if maritime causes ( be they either for freight , wages , damages done to merchants goods , building , tackling , and furnishing of ships , &c. ) should be here determined by the municipal laws of this nation , and beyond the seas by the civil and maritime laws , they must necessarily receive many of them , a different ; many of them a clean contrary judgment . to instance briefly in some few of many ; if mariners be hired to serve in a ship , for so much by the moneth , and serve divers moneths in her , and the ship dieth at sea , and never maketh port ; here the judgement of these two laws will be clean contrary . likewise , if a ship be let to freight at a certain rate by the moneth from port to port , and so home again , and the ship in some of those ports shall be imbarqued for some moneths , here the judgements of the two laws both for freight and wages for those moneths will be contrary , and upon other emergent causes from hence arising , the judgements will likewise be , in some farre different , and in other some clean contrary . if the merchants wines , oyls , &c. be leaked out end for end , the judgements upon action for the freight will be different , if not contrary . if the merchants goods shall be damnified by ill stowage , or careless looking to , or shall be purloyned or stoln , the party not known , or if known , not able to make satisfaction , here , upon action brought by the owner for his freight , and by the mariner for his wages , the judgements will differ very much . if in a storm at sea , or in any port or haven , the ship and her lading be in danger , and some goods be cast over board , for preservation of the rest , by the maritime laws , the remaining goods are to be cast into an avaridge , to make satisfaction for the goods cast over-board , by which law certain rules , as well concerning the danger , the nature of the several goods , and the casting them over board , as concerning the avaridge it self to be made , are prescribed ; which rules are not known , or owned by the municipal laws of this nation , and therefore cannot that law take cognizance thereof , and consequently upon action brought by the owners for freight wheresoever contracted for , in these and divers other like cases the judgement of that law cannot be agreeable unto the rules and grounds of the maritime laws . if a mariner be hyred by the moneth , and doth serve several months in the ship , and afterwards desert or leave the ship , and run away , upon action brought for his wages , the judgements of the two laws will be clean contrary . if the mariner without leave of the master lie on shore , and the ship or goods be damnified , or the voyage protracted ; or if the ship be not well moored , so that for default thereof she be damnified ; or if the mariner take up clothes , or borrow money of his fellow , and put the same in the pursers book , upon action brought for his wages , the judgements of the two laws will differ . if two , be they merchants , owners , mariners , or furnishers of ships , &c. and those either english or foreigners , or the one english , and the other a foreigner , do for freight , tackle , or furniture of ships , &c. or by other commerce in their seafaring business , become indebted each to other , upon action brought by either of them , the maritime law admitteth the other to alleage and prove what likewise is due to him from him that sueth at the same time , and alloweth him compensation , which the municipal law alloweth not , but concludeth that stoppage is no payment ; by which law , if exercised in business of this nature , the absent might recover much against the party present , and he be constrained to wait his opportunity , for the recovery of what is due to him , from him that hath recovered against him , to the lessening of his stock , and great hinderance of his trade : and in like manner the non-solvent might recover much against the solvent , and he nothing at all against the non-solvent , which would be very much inconvenient to all seatrading men , and a thing not known abroad . now these maritime laws for maritime businesses are all grounded upon strong reasons , which if they could be here at large particularly set forth , yet would they not take away the reason whereon the municipal laws for land affairs are grounded , in regard different judgements in different things do arise from different grounds of reason : so that the judgements upon businesses agitated upon the land may be grounded upon reason , and yet will not that reason hold to ground the like judgement upon in business at sea , or upon the great waters , those being accommodated with many advantages and helps in their agitation and petformance , of which these are altogether destitute . and this will introduce a second reason why the welfare of the merchants and other seafaring men cannot be maintained without the settling and upholding of these maritime laws , for decision of differences and controversies in maritime affairs , which is because these laws are suitable thereunto , and compleat to determine all differences in businesses of that nature , which as i conceive , the municipal laws of the land are not . for maritime causes , especially those for wages , must have a quick and sodain dispatch of justice ; the mariners , as they come in with one good wind , so must they speedily go out with another , and not wait westminster-hall termes , to the loss of a whole voyage , such their imployment being their whole livelyhood . nor must they commence every man a suit according to his particular contract , to the expence of as much , if not more , then his wages come to , but must as the martime laws allow them , commence their action in one joint petition to a judge at all times settled in a readiness , and in a constant place of judicature , where and to whom they may make their present addresses , for dispatch , according to such laws as they are used unto wheresoever they come . if the mariner must have such dispatch against the master , then must the master have the like against the merchant for his freight , out of which he is to pay the wages ; and the merchant the like against the master and owners of the ship for damages done to his goods at sea ; all which is speedily tryed at one and the same time by the maritime laws , which upon full hearing alloweth compensation , and every one hath at first his own according to proof , or confession upon their personal answers , and no more ; otherwise if the mariners shall by several tryals at the common law recover their full wages of the master , and be gone , and then the merchant recover against him likewise , or against the owners of the ship perhaps as much or more then their freight amounteth unto , for damage done unto his goods , perhaps by the mariners , who are gone , and not to be met with again , and be put afterwards to sue for their freight : this will soon cause the owners of ships to lay their vessels by the walls : or if the mariners shall recover their wages of the masters or owners , and be gone , and then the owners shall recover their freight against the merchants , whose goods are damnified or spoiled by the mariners , and not by default of the ship , or by default of the ship , and not by any neglect or fault of the mariners , or by both and he then put to a tryal to recover by jury the damage he hath sustained , he is like to have but little or no redress . if the mariner shall have his dispatch , and be gone ( which he must have , or be undone ) and the merchant wait his tryal from terme to terme at the ●ommon law , then by reason of the absence of the mariners , can neither the owner prove the damage to be done by meer casualty , or stress of weather at sea ; which he is not lyable to make satifaction for ; nor can the merchant prove the insufficiency of the ship , in which case the owner is to make satisfaction , besides many inconveniences more which might be reckoned . thus is not the one law only suitable and agreeable to maritime affairs , and the other unsuitable and disagreeable thereunto ; but the one is likewise perfect and compleat for deciding of all controversies thence arising ; the other imperfect , and in no wise compleat for that purpose in my judgment . for bills of bumery , or bottomry ( for many reasons most usefull , and absolutely necessary in sea trade ) they are likewise triable only by the maritime laws , and can be no wayes tryable at the common law , wheresoever made , by reason the ship only is lyable to payment , which may be arrested according to the maritime laws , either at the main sea ; or upon any creek , port , or haven adjoyning upon the land , which cannot be done by the common law , as i humbly conceive . so likewise contracts de nautico foenore , pecunia trajectitia , or nautica usura , wheresoever made , are tryable by the civil and maritime laws , and not by the common law of england ; and the civil law hath several titles concerning these particulars , as in the digests the title de nautico foenore in the code , the same title in the novel constitutions , the title de nauticis usuris , &c. in which titles these particulars are defined , what they are , what maketh them so to be , and what maketh them not to be so ; and are likewise distinguished into several sorts , each of which is terminated and limited unto its proper bounds , as when this nauticum foenus is distinguished into heteroplum and amphoteroplum , as some authors terme it ; heteroplum cum commeatus tantum periculum foenerator suscepit ; amphoteroplum cum & commeatus & remeatus periculum suscepit ; the one when he undertaketh the danger of the ship only outward bound , or only homeward bound ; the other when he undergoeth the danger both of the outward and homeward voyage , and many other of the like nature , of which the common law hath not one word , that ever i could hear of , much less any rule to guide the professors thereof in the judgment of such things . in bills of sale of ships , &c. though made at land , the parties to whom the same are made , cannot ( if withstood ) obtain the possession thereof , but by the civil and maritime law , and power of the admiralty court. and every ship that is built may have many part . owners , and most commonly she hath , and before she can be compleatly built , tackled , victualled , fitted and prepared to put to sea , a great number of several tradesmen must necessarily have been imployed therein , and been assisting thereunto , which cannot with any possibility , every of them repair to every owner , some possibly being or inhabiting beyond the seas , other some in this nation ; if all in this nation , yet oftentimes some in one place , some in another , farre remote each from other , and from the place of such her building , tackling , &c. to make his particular contract with him for his materials , workmanship , victual , or other furniture and necessaries , so that necessarily some one of the owners ( which commonly hath not above an eighth , sixteenth , or two and thirtieth part , and sometimes one that hath no part at all ) is by the rest made mr. of her , and contracteth with all these several tradesmen , who regard not his ability , by reason the ship it self is by the maritime laws lyable for the payment of every mans particular debt , which law must necessarily take place , or else few or no ships be built and employed for trade ; for at the common law i conceive they can have only their several actions against the master , with whom they contracted , who for the most part is not able to make satisfaction to one third part of them , and many times not to one particular man. if one ship shall do damage to another , either at the main sea , or upon any creek , port , or haven , the damage must be sued for in the admiralty court , and judgment given according to the maritime laws , which prescribeth every ship her rule , how to steer her course both going out to sea , or coming in from sea , or riding at sea , which plainly demonstrateth which ship was in fault , by which the judgement must be regulated . and no action can be so properly commenced at the common law for these damages , for that the owners damnified can very hardly arrest all the owners of the other ship , which did the damage , nor indeed can any of those owners by that law be lyable to such arrest ; but the master , who if solvent , will not come on shore , but take his imployment in some other ship outward bound , so that the remedy lyeth properly against the ship by the maritime laws , as hath been already said . if a contract be made beyond the seas concerning any maritime businesses by bill , or otherwise , the same is not cognizable at the common law by their own books , neither indeed if it were , could it receive the same judgment it shall by the civil and maritime law ; for a verbal contract is not made by assumsit there , as here it is ; nor in a contract made in writing is any thing more required , or thought necessary then the signing or subscribing of a bill , for performance , &c. and sometimes the sealing , but never the delivery ; nor is there any such ceremony there used or known , without which by the common-law ( as i have heard ) it is nothing ; so that the english merchants , or other seafaring mans bill , here signed , sealed , and deliveted , according to the formalities of this nation in that case required , shall , being sued in any court beyond the seas , prove good against him , without due examinations of half the said formalities , whereas the foreigners bill , which is ( according to the customes and usages of those parts , from which they will not by auy means depart ) sometimes only signed , sometimes sealed , sometimes both , but never delivered , shall for want of this one formality of delivery at the common law , prove voyd and of none effect , and so the english man become undone by formalities of the english laws , so far different from those of foreign nations , especially the laws maritime , which are for the most part , if not altogether , agreeable in most places , if not in all . many more reasons might be given , why all contracts of this nature wheresoever made , should and ought to be tryed in the admiralty court , by the civil and maritime laws , and not by the municipal laws of this nation ; and many instances more might be given , wherein the civil and maritime laws ( which are common to all nations ) do differ from the municipal laws of this , and so would vary the judgments in causes of the self same nature : but that is too large a task to undertake here , and but a needless one , when some few instances may satisfy a wise man that intendeth not to quarrel . i shall endeavour here in a word to satisfie but one doubt by the way , and so proceed ( according to the best of my judgment ) to the answering the arguments brought against the admirals cognizace of these contracts . it is objected that other nations have their several municipal laws as well as england ; and that therefore these contracts may as well be tried by the municipal laws of this nation , as by any municipal law of another . i answer that they have in several nations , several different municipal laws , whereby they are governed within themselves , as we are here ; yet are those municipal laws all grounded upon the civil law , and are no more different one from another , then one and the same lesson playd upon several instruments , in several strains ; nor do otherwise differ , then as the several interpretations of several men upon them have differed ; as in many doctrinal points in divinity various constructions have been rendred , even upon the very text of the divine law , according to several apprehensions and opinions of several men . for upon all their decisions and determinations they quote the civil law , and the authentique writers and commentators thereon , as is already said , li. . c. and as the controversies happening and arising between one nation and another , are not to be decided by either of their municipal laws , that being a way to raise a new controversie , by which of those municipal laws the old should be decided ; no more are those controversies which do arise concerning maritime and sea affairs to be determined by those municipal laws , but by their maritime laws , by which they trade one nation with another , and which are generally the same , and not municipal , as is before more fully set forth . for further satisfaction vide caput . hujus libri tertii . chap. ii. the arguments deduced out of the statute of the r. . c. . to prove that maritime contracts , made at land concerning maritime affairs , are not tryable in the admiralty court , answered . for the taking away the cognizance of contracts made at land concerning maritime affairs from the admiralty court , the statute of the of r. . c. . the of r. . c. . and the of h. . c. . are urged by sir edward coke in his before mentioned th chapter of his jurisdiction of courts . i shall take them in order . the first of them he rendreth thus , that the admirals and their deputies shall not meddle from henceforth with any thing done within the realm of england , but only with things done upon the sea , according to that which hath been duly used in the time of the noble king edward , grandfather to richard the second ; by which , saith he , it is manifest that the jurisdiction of the admiralty is only confined to things done upon the sea. and truly taking only these words , it may very well seem so to be . sed tota lex in omnibus suis partibus diligenter prospicienda est , & incivile est ( inquit celsus ) nisi tota lege prolecta , de una aliqua particula ejus proposita judicare , vel respondere . take we then the statute wholly , as it is set down in the parliament roll in the tower , and then to the best of my understanding , we shall find that the mis-translation hath bred a mis-construction , and wrong interpretation thereof . these antient statutes were made by way of petition and answer , and so remain still upon the roll ; here is set down only the answer to the petition , but not one word of the petition , to which the answer hath relation . et cum non sit satis ad investigationem juris si verborum superficiem teneamus , sed interius respicienda est mens legislatoris , quâ ratione motus fuerit ad statuendum aliquid ( ut affirmat a oldendorpius ) loco praecitato . certè nullo modo sunt vestiganda jura , si verborum omnium ne quidem superficiem istam aut teneamus , aut habeamus , nec quovismodo est intelligenda mens legislatoris , quâ ratione motus fuit ad hoc statuendum , dum abscondita sit petitio , super quâ fundatur statutum . scire leges ( inquit celsus ) non hoc est verba eorum tenere , sed vim & potestatem habere . l. scire leges f. de legibus quedcunque igitur negligere est legum vim potestatemque destruere . i shall therefore first set down both the petition and answer as i find them in the tower roll , and then under correction examine the true construction and interpretation of them , according to the best of my ability . the words are these . item , prient les comes que come les admirals , & lour deputies tiegnent lour sessions en diverses places deins le royalme , si bien deins franchises come de hors accrochant au eux plus grant poaire que a lour office nappertinent en pre judice nostre sieūr ' le roy , & le come ley du royalme , & grant enblemishment de plusours diverses franchises en destruction & empourissiment del ' comen people que plese ordaine & establer lour poaire en cest persent parlament quils ne sic mellent nempriegnent sureux connisances , de nulls contracts covenances regraters , &c. que con ques les quex divent & purrant estre termines devant auter jugges nostre sur le roy deins les quatre miers dengleterre deins franchise & de horse , &c. r. le roy voit que les admirals & lour deputies ne soi mellent de sore ena vant de null chose fait deins le roylme mes solemet , de chose fait sur le meere , solonc ce que ad estre duement use en temps du noble roy edward aiel nostre sūr le roy quorest g . the first part of the petition , having set forth that the admirals keeping their sessions in divers places in the realm , as well within the liberties , as without , had incroached to themselves greater power then belonged unto their office , &c. then so much of the prayer of the petition as is granted , consisteth in these words . quils ne sic mellent nem pregnent sur eux conisances de nulls contracts , covenances , regrates , &c. que con ques les ceux divent & purrant estre termines devant autres jugges nostre sur le roy , deins les quatre miers dengleterre deins franchise & de horse h . they pray that the admirals may not so meddle or encroach upon the cognizance of contracts , covenants , regraters , &c. determinable before other the kings judges , within the four seas of england , within franchise and without the rest of the petition is not granted , but tacitely denied , and this part is thus answered by the king. le roy vort que les admirals & lour deputies ne soi mellent , &c. this sir edward coke positively without any relation to the petition , rendreth in the words before set down , viz. the admirals and their deputies shall not meddle from henceforth with any thing done within the realm of england , but onely with things done upon the sea ; which poulton more truly rendereth thus ; but still without relation to the petition , that the admirals and their deputies shall not meddle from henceforth , of any thing done within the realm , but onely of a thing done upon the sea ; rendring of , for with , which is the more proper signification of de , and will as i conceive bring home the true construction of the answer , with relation to the petition , to which it hath , and necessarily must have reference . it hath been affirmed unto me by some professors of the common law , that the king upon a petition never grants more then is desired by the petition , and that that which is granted more then is desired , is void in law ; but that i leave to the determination of such as are of their own profession ; but the same thing hath been noted unto me as a rule from many expert recordmen , more especially from my old deceased friend master w. c. not long before his death , then above years of age , viz. that the king in parliament never granted more then was askt , many times less ; who affirmed that this in his younger time he had taken for a rule from those that were then ancient . but this answer here being set down positively alone , without the petition , or any relation thereunto , hath ( as it seemeth to me ) made the grant far larger then the request , which must not be , but must be reduced thereunto , and receive a construction , with a due relation to it . it being complained of in parliament that the admirals and their deputies had encroacht , as is before set forth ; it is desired by the petition that they and their deputies may not meddle with contracts , covenants , or regraters , &c. tryable before the other judges ; it is answered that henceforth they shall not , of a thing done within the realm , but of a thing done upon the sea. the construction of the answer , with relation to the petition ( which as i humbly conceive must not be separated by any logician ) will plainly be this . the admirals and their deputies shall not henceforth meddle with any contracts , covenants , &c. of , or concerning any thing done within the realm , but onely of contracts , covenants , &c. of , or concerning things done upon the sea : so that we plainly see an answer to a question , or petition turned into a positive thesis , without relation to the thing , whereof it is an answer , is easily turned into another sence never intended ; and this answer to a petition , translated alone without the petition , and put positively , as the translation of the statute putteth it , doth seem clearly to take away from the admiral the cognizance of all contracts , and covenants whatsoever made within the realm , whereas taken with the relation to the petition , it as clearly confirms the cognizance of contracts of , or concerning things done at sea unto him ▪ for as the answer to the petition doth grant that the admiral shall not meddle with contracts of things done within the realm , so doth it reserve the contracts and covenants of things done upon the seas unto him ; and the words as i said before , can imply no other thing , to the best of my understanding . for the following words , solonc ce que ad estre dument use en temps du noble roy edward aiel nostre sur le roy quorust . poulton ( having thus translated the answer , without mention of any one word of the substance of the petition ) rendreth barely thus : as it hath been used in the time of the noble prince king edward , granfather of our lord the king that now is : as if this positive thesis , by him extracted out of that , which was the king's answer to a petition , and had onely a relation thereto , had been so used in edward the thirds time , whereas the words are a restriction to the answer , and bindeth up the law to what was used in the kings time ; for solonc ; which in true french is seloon ; signifieth secundum or juxta , according or agreeable , so that if the answer could be taken positively without relation to the petition ( which as i conceive it cannot be ) yet these words solonc ceque ad estre dument use , &c. had restrained and limited it , not to exceed or extend it self to any thing that was not according or agreeable to what was duely used in edward the thirds time : so that under correction , by that strained construction and interpretation that is made of the former part thereof , the admiral is not barred the cognizance either of contracts , covenants , or any thing else , which he had cognizance of in that kings raign . take that part of the petition wholly , and the king wholly grants it , but no more . by the petition it is desired that the admirals may not meddle , nor encroach upon the cognizance of contracts , covenants , regraters , &c. cognizable before the other judges ; the king granteth it , putting a difference between the contracts , &c. of things done at land , and of things done at sea , and by this restriction referreth to what covenants , contracts , regraters , &c. were duly used and tryed in the admiralty in edward the thirds time , and those he thereunto reserveth the cognizance of , but no other . and now it cometh to be mainly considered , whether contracts and covenants of and concerning maritime businesses , though made at land , were cognizable in the admiralty court , or at the common law in edward the thirds time . and it seemeth plaine unto me that in edward the thirds time , the admiral had the cognizance of all maritime causes , by the words of their patents . i will give but one instance of the patent of robert herle , already cited , in which you shall finde these words : dante 's ei plenam tenore praefentium potestatem , querelas omnium & singul●rum de his quae offieium admiralli tangunt , & cognoscendi in causis maritimis , & justitiam faciendi , &c. now if bills of botomery ( whereby ships only are lyable to the payment of the debt contracted upon them ) though contracted for at land , or if freight for the service of ships at sea , or mariners wages , for their service at sea likewise , for which either the ships or contracters are lyable at the parties agents choice , though the said contracts were made at land ; and the like businesses which have their first rise from somewhat done at sea , are not maritime causes i would gladly know what causes can be called maritime : for sure i am , that maritimus is either 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . that which is on the sea coast , or nearest the sea , which the french render ou demeure aupres ou sur le bord de la mer ; and the spaniard cerca de la mar . or it is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , belonging to the sea , take which signification of the word you will , and the before mentioned causes will be causae maritimae ; if for on the sea-coast , or near the sea , then the contracts in such causes , though they he made at land , are made on the sea-coast , in the sea town , or near the sea : if for belonging unto the sea , then these contracts ( wheresoever they are made ) are made for things to be agitated and done at sea , and for things that cannot be done without the sea ; and such contracts they are , that if the sea was not , would never have been made ; and therefore these contracts must necessarily belong unto the sea , and so must those causes which arise from them ; and must as necessarily be those causae maritimae , which the admiral is to take cognizance of . and i am confident that it cannot be shewed , that the common law had any cognizance of these or the like causes in edward the thirds time ; or that these or such like causes , were the causes wherein the admirals are said then , or after , to have encroacht upon the kings courts : nor that the common law had then , nor hath yet any positive laws , rules , or grounds for the decision of causes of this nature . and clear enough it is , that even in edward the thirds reign ( to which this statute hath reference ) many laws and rules were confirmed , and many made for direction of the admiral in the decision of causes of this nature ( as by several antient records shall hereafter appear ) by which i doubt not but that it will evidently appear , that the cognizace of these contracts concerning maritime affairs , wheresoever made , were then duly used in the admiralty court , and did properly thereunto belong . chap. iii. that by the ancient statutes of the admiralty , and by the laws of oleron , it appeareth that contracts made at land of and concerning maritime affairs , were cognizable and tryable in the admiralty both before , and even in the time of edward the third , whereunto the last mentioned statute maketh reference . if contracts and covenants of and concerning maritime businesses made at land were cognizable in the admiralty in edward the third's time , then doth the last before mentioned limitation of the statute of the th of rich. . . continue them tryable there still , taking the construction of the statute to be with relation to the petition , or without . but before that i go about to shew that they were then cognizable there , i shall make it first appear , that they were there triable long before his time , and so come to the cognizance of them in his time . in the beginning of that antient authentique book , called the black book of the admiralty , whereof i have formerly made mention , in which all things therein comprehended are ingrossed in vellam , in an antient character , which hath been from time to time kept in the registry of that court , for the use of the judges of the admiralty successively ( and is as free from suspition of being corrupted or falsified , as the records of any court whatsoever ) are set down the ancient statutes of the admiralty , with directions how , in what manner , and of what things every admiral shall enquire , at every port , and haven , after his being made high admiral : where amongst other things , i find an ordinance made by edward the first , at hastings , as is plain , by the ordinance it self , whereby all stewards , and bayliffs of mannours , upon the sea-coasts are forbidden to meddle with any plea , or try any cause whatsoever , touching or concerning any merchant or mariner , whether by deed or charter party of ships , or other things , amounting to the summe of , or shillings . the words are these . item , ordonne estoit a hastings par le roy edward le primer & ses seigneurs que coment divers seigneurs avoient diverses franchises de trier plees ou ports , que leur seneschaulx ne baliffs , ne tendroient nul plee sil touch merchant ou mariner tant par fait come par chartre de nefs obligations & autres faitz comment la somme amont que a xx s , ou a xl s , & saucun est endite quil a faite le contrare & de ce soit convict , il avera mesme le judgement come desus est dit . they that shall do to the contrary , and shall be thereof convict , they shall have the same judgement as is aforesaid , which is a years imprisonment , set forth in the next preceding article , for a mariners breaking an arrest , made upon him , for to serve the king in any ship. and the same ordinance concludeth this : item chūn contract fait entre marchant & marchant , ou marchant ou mariner outre la mer ou dedens le flod markes sera trie devant l' admirall & nemient ailleurs par lordonannce dudit roy edward , & ses seigneurs . also every contract of a thing done between merchant and merchant , merchant or mariner , beyond the seas , or beneath the flood mark , shall be tryed before the admiral , and nowhere else , by the ordinance of the said king edward and his nobles . and in another thick covered book with great brass bosses , kept in the registry of the said court , wherein are set down some things of antiquity , and likewise some things of latter times , i find this very ordinance set down in express words , agreeing both with the former part and with the addition thereunto . wherein i likewise find an article of enquiry in latine , containing the whole substance of this very ordinance , in these words : item inquiratur de hiis seneschallis & ballivis quorumcunque dominorum per costera maris dominia habentium , qui tenent , vel tenere usurpent aliquod placitum mercatorum vel marinarum concernens , excedens summum quadraginta solidorum ; paena qui inde presentati fuerint & super hoc convicti paenam quinque librarum & judicium subibunt , & haec est ordinatio edwardi primi , apud hastings regni sui anno secundo . item quod quilibet contractus initus & factus inter calcatorem & mercatorem , marinarium , aut alies ultra mare , sive intra fluxum maris , vel refluxum vulgariter dictum fludd marke erit triatus & terminatus , coram admirallo & non alibi per ordinationem praedictam . and by an inquisition , long since translated out of an ancient french copy into latine , by one roughton , and ingrossed in the said black book , i find this whole article in the self same words , save that instead of these words paenam quinque librarum & judicium subibunt , the words are these : eandem paenam ut super & judicium subibunt : which agreeth with the ordinance it self , which referreth to the punishment in the preceding article thereunto : which punishment is ( as is set forth before ) a whole years imprisonment . now that this ordinance and this article onely forbiddeth stewards , and bayliffs of mannours , for medling with such maritime contracts , and causes , it is because that at that time , there were no other courts that could encroach upon the admiralty ; for the kings-bench was not setled in any constant place , but followed the king , wheresoever he went ; and the justices in aire , and justices of assize being itinerantes , and sometimes at home , and sometimes in their circuits , and somerimes in one place , sometimes in another , and so in no certain place , and least of all in any ports , or haven towns , never did nor could take cognizance of maritime contracts , or causes , which always required a most sudain dispatch ▪ and could not expect their uncertain coming ; nor was the court of common pleas then settled ; for it was resolved to be settled in some constant place , but in the th . year of hen. the . all which will appear , by what i have formerly set down . now that these contracts and covenants concerning maritime affairs , though made at land , were continued cognoscible in the admiralty court , in edward the . time , as well as before , will likewise plainly appear thus . the laws of oleron , which were brought into this kingdom by richard the . were absolutely and compleatly settled , and established in this nation by edward the . in the year of his raign , as will plainly appear by that ancient record of the tower , intituled , de articulis super quibus &c. anno regni regis edward . . which is already set down , which i will here repeat , because i will not turn you back to the other place , being there made use of to another purpose . item ad finem quod resumatur & continuetur ad subditorum prosecutionem , forma procedendi quondam ordinata & inchoata per avum domini nostri regis , & ejus concilium ad retinendum & conservandum antiquam superioritatem maris angliae , & nos officii admirallitatis in eodem quoad corrigendum , interpretandum , declarandum & conservandum leges & statuta per ejus antecessores angliae reges dudum ordinata ad conservandum pacem & justitiam inter omnes gentes nationis cujuscunque per mare angliae transeuntes , & ad cognoscendum super omnibus in contrarium attemptatis in eodem , & ad puniendum delinquentes & damna passis satisfaciendum , quae quidem leges & statuta per dominum richardum quondam regem angliae in reditu suo à terrâ sanctâ correcta fuerunt interpretata , in insulâ oleron publicata , & nominata in gallicâ linguâ , la ley oleron . these laws thus brought in and thus established for the direction and use of the office of the admiralty ( as its plain they were by the very words of this establishment , et nos officii admirallitatis in eodem , &c. ) were many of them of no use at all , if the admiral had not , at , and after the time of the bringing of them in , or were not at , and after the time of the settlement thereof , to have had the cognizance of contracts and covenants made at land , of and concerning maritime affairs ; for many of them do set forth and declare , what judgement is to be given by the admiral upon such covenants and contracts ; and the very first judgement setteth forth in what case the master of a ship , ( being come to a strange port ) may there sell the ship , and in what case he may not , and in what case he may pawn some of his tackle , and in what not ; all which must needs be done by contract or covenant , and he must necessarily seek his chapman at land , and not at sea. and who should have the judgement of such contract , whether it be good , or a void contract , but the admiral who hath his direction by these laws , how to judge , i know not . the words of the judgement are these . premierement leu fait ung homme mastre d'une nef la nef est a deux hommes , ou a trois la nefs , seu part du pais dout ille est & voyent a bordeaux , ou a la rochelle ou alles , &c. se frette pour aler en pags estranges , le mastre ne puet passe vendre le nef sil na commandement ou procuration des seigneurs , mais sil a mestier de despens il puet bien mettre aucuns des apparilz exgaige par conseil des compaignons da la nof & cest le jagger en ce cas . again a master of a ship hyreth mariners in the town where the ship is , and by their agreement , contract or covenant , some are to be at marinage , others at whole pay in mony , which done , the ship can find no freight to go to the place where the master intended to go , and whether he hyred his mariners , but must go further , or not so farre . this no doubt is contracting and covenanting at land for a maritime voyage , which cannot as i believe be by the common law , according to the maritime rules decided , nor hath it any rule of it self to judge it by , whether any of the mariners so hired are bound to performe this new voyage or not , which if the professors thereof shall undertake , i much fear that in this very first question they must judge clean contrary to the laws of the sea , or clean contrary to the grounds and principles of their own law , which are very good and very reasonable in the land affairs ; but the reason thereof will not hold in maritime businesses , as i have said before . and excellent authors there be written by civili●ns , which give exact reasons of the differences of judgments in land businesses and sea affairs . . whether those that are hired at marinage , of those that are hired at full deneirs are the rather bound to performe the voyage . . upon what termes those that are freest are bound ; and must performe the same . . what is to be done in case the voyage prove shorter or longer then that which was agreed for . the judgement upon these particulars is set down briefly in the th judgement of oleron , and is by other civil law authors amplyfied , with express reasons of every particular . the words of the judgment in the laws of oleron are these . vng maistre dune nef loue ses mariners eu la ville dont la nef est les lowe les ungs a marinage les autres à deniers ilz veoient que la nef ne puet troun fretts a venie en ses parties & leur coūient alzr & plus loing nes ceulz qui vont a marinage la doivent servir , mais ceulx qui vont a deniers le maistre est tenu a leur croistre leurs loyer veve par veve & corps par corps par la raison qui les avoit lovez & a termine lieu & cliz viennēt plus peres que leux covenant la pris il doit avoir son loyer tout au lang , mais il doit aidera rendre la nef la ou illa prist se le maistre veult a la venture de dieu , & cest le judgement en ce cas . other judgements there be which determine in what cases the master of a ship may sell part of his merchants wines , or other goods , without breach of his charter-party or contract of a freightment , and in what case such his sale or contract for such wines or goods ( which must necessarily be made at land ) shall be good and sufficient in law . and such cases as these the admiralty adjudgeth sometimes at , , , or hours warning , or in a very short time ; for if such cases should wait terms or courts , many a voyage would oftentimes be lost , to the extraordinary great damage both of merchants , owners , masters , and mariners of ships . but for contracts and covenants between the master of a ship and his mariners ; for their wages , some have thought them to be upon sufferance allowed by the common law unto the admiralty for the quick dispatch of mariners , and they should not be inforc'd to bring several actions at that law ; but had it been at the allowance or sufferance of that law , another reason might have been added of such their allowance or sufferance , viz. because these poor men seldome have any money to expend in suit , for obtaining of so small a summe , as commonly their wages severally amounteth unto , whereas in the admiralty they are , and alwayes have been heard summarily without payment of one penny , for the judges extraordinary pains in the hearing , and determining causes of this nature ; and an advocate expecteth but a single fee from them all , be they never so many , which oft-times amounteth not to d. a piece . but we see plainly that such manner of contracts belonged unto the admiralty court by the law established and confirmed in the twelfth year of edward the third , and so did all contracts and covenants between merchants and masters , and owners of ships for freight or the like . a master of a ship lets a ship to freight to one merchant or more , and they covenant and agree , that they shall so lade , that the ship may be ready to depart by a certain day , and they fail , and have not fully laden by that time , so that the master loseth his time , and oft-times his weathering ; this is a contract or covenant made at land ; yet hath the common law no law or rule that , ever i could learn , to judge the same by : . whether in this place the master may contract with any other merchant for a new freight , or not . . what lading boarded firmeth the contract , and holdeth it on , and what freeth it . . in case the contract be held firme , how many dayes after the terme is expired , bring the merchants within the compass of the law to make satisfaction . . what satisfaction is to be made , and in what manner . . how such satisfaction being made , the same is to be divided between the master and the mariners . and . how such an accident firmeth or altereth the contract made between the master and the mariners . if therefore in sea affairs there were not sea laws and rules to limit and regulate such general contracts , but that they should be held broken for defect of performance of every particular circumstance at the common law , very many and great inconveniences would follow in cases of this nature , because as the land is more firme then the sea , so are not land businesses so subject unto various events , as the sea affairs are , but are at a farre more certainty for the performance of particular circumstances , then the sea affairs possibly can be ; and yet it will not be denyed , but that some contracts made at land concerning land businesses , are against the law , some void by law , and some must be regulated by law , much more must such as concern maritime affairs be regulated by such laws as are most proper for them , which are the maritime laws ; and if these laws shall not be observed and followed in this land and nation , as well as in all others , the english merchants , and the enhlish mariner and owners of ships will be tyed to such inconveniences as the merchants , mariners and owners of ships of no other nation are , to their extraordinary disadvantage ; but this is but a digression , which hath been spoken of more at large elsewhere , and therefore we will return to the matter . as the th . judgement of oleron is set down for a guide and direction of the admiral and judges of the admiralty in the particular contracts before mentioned therein between masters of ships and mariners ; so doth the . judgement set down a rule , to guide and direct them in the judgement of contracts , and covenants made between merchants and mariners , and owners of ships in the case above specified , which is in some particulars of that case plain enough , yet in all it cannot be perfectly understood , but by such civilians as are very well verst in other both ancienter and subsequent authors , who have wrote of the maritime laws ; the words of this judgement i shall here set down . vng mastre frette sa nef a ung merchant & est devise entre eux & im's ung terme pour chargier la nef & les mariners par le space de xv jours ou de plus oultre & aucune foiz en pert le maistre son fret , & sa mession par default dung merchant , le marchant est tenu alamender , & in celle amende que sera faitte les mariners auront le quart & le maistre les trois parties par la raison quil trouve les costes & cest le judgement en ce cas . this judgement is without question a plain direction to the admiral and judges of the admiralty , what to determine in some of the particulars above mentioned , upon a contract made at land for freight of a ship , which serveth sufficiently for my purpose , to prove that the admiral and judges of the admiralty had both before , and in edward the . time ( who in the twelfth year of his raign established these laws ) cognizance of contracts made at land between merchants and mariners , and owners of ships for freight . and to this judgement , which sheweth what is to be determined in case of freight , where the merchant is in fault or delay , i shall adde , and here set down one judgement more , which sheweth what is to be determined , when the mariner , or any of the owners are in default or delay : as if a merchant do take to freight by contract or covenant , any ship lying in any port or haven , and it falleth out that the ship is stopped or stayed , through de●ault of the mariner , or any of his owners , and how and in what manner this contract or covenant holdeth , or holdeth not ; and these are the words of the judgement . item ordonne est & estably pour loy & custume de la mer que se ung merchant a frette une nef eu quelque port que se soit & a viengne que le nef soit empeschee pour default du maistre ou du seigneur a celliu a qui la nef est le merchant qui avoit frette la nef puet requirra le maistre entelle maniere je te requier que tu mettes mes biens ou mes denrrees en la nef & le maistre dit que la nef est empeschee de par aucun seigneur le merchant qui avoit frette la nef se puet partir du covenant & affrettment du dit maistre & affretter a son choys ailleurs sans ce que soit tenu audit maistre de rien a mender , & se le merchant ne trouve frett il puet bien demander au maistre ses dommages pour la raison quil la mye tenuz ses convenants & affrement dessus ditz & le maistre lui doit amender , & cest le judgement en ce cas . several other judgements there be , which ( when a ship is so taken to freight by any merchant ) do set forth several duties to be performed , both on the merchants part , and likewise on the masters and mariners parts , which i shall not here set down , because it is not my drift , or purpose to shew what the laws of the seas are , but onely to shew that by the laws of oleron established in edward the . time , contracts for freight of ships , and mariners wages were cognoscible in the admiralty court , and these laws are left as guides and rules for the admirals , and judges of the admiralty to determine such causes by . hence it is plain to my understanding , that the statute of richard the . though taken in the most generall construction , without reference or relation to the petition ( which i cannot by any means be drawn or perswaded to allow ) yet being restrain'd with this restriction solonc ce que ad estre duement use en temps du noble roy ail nostre quorust , doth no ways at all take away the admirals , or the court of the admiralties cognizance of any thing whatsoever was cognoscible before them , in edward the s time , and so consequently doth it not take away the cognizance of contracts for freight , nor wages , nor are they any of the encroachments complained of in the petition , whereunto that statute is an answer . and divers other judgments there be amongst these laws of oleron , which determine contracts made between the masters of ships and pilots , or loads-men , whether the same be made at land or elsewhere , for the conducting of ships into ports and havens , or from one port or place to another ; i shall only quote some two or three of them , and leave the rest . item se ung lodeman prent charge sur luy de amaner une nef en aucun port & avient quen sa defaulte la nef soit perie , &c. marchandises endomagees , &c. item estably est pour custume de mer que se une nef est perdue par la defaulte de une lodeman , &c. vng bachellor est lodeman de une nef & est love alamener jusquis au port ou len la doit discharger , &c. and some others there be of the same nature . and the ancient statutes of the admiralty and laws of oleron before mentioned , established by the said king edward the third , in the year of his reign , as is before declared , having settled the cognizance of such contracts , and maritime causes in the jurisdiction of the admiralty , he granteth the same to his admirals by their patents ( as appeareth by that patent before mentioned , granted unto robert herle in the of his reign . ) but ( as it seemeth ) some in those times having opposed , or at leastwise afterwards interrupted this settlement , the same king caused an inquisition to be made at quinborough , the second day of april in the th year of his reign , before william latimer chamberlain of england , and warden of the cinque ports , and william nevill his admiral of the north , by near twenty of the most able and best skilled seafaring men of several port towns of this nation , of and concerning the ancient customes of the admiralty , to be held firme and continued according to their verdict , as i have at large set forth in the twelfth chapter of the second book of this treatise . i shall therefore proceed to shew that by the said inquisition , it plainly appeareth , that contracts made at land of and concerning maritime affairs , were in edward the third's time cognoscible and tryable in the admiralty court. chap. iiii. that by the antient inquisition taken at quinborough in edward the third's time , it appeareth that the cognizance of contracts made at land concerning maritime affairs belonged then and before unto the admiralty court. it hath been an antient rule or maxime amongst merchants , owners of ships , masters of ships , and all sorts of mariners and seamen , that freight is the mother of wages ; therefore are the mariners wages to be paid out of the freight the ship hath earned ; and the damages done to the merchants goods by the mariners , or sustained through their negligence , is to be paid out of the freight ; and what is so paid out of the freight , is to be deducted out of their wages ; and by this rule all are necessarily cognoscible in one and the same court or judicature ; and the damage done at sea being cognoscible in the admiralty , and no where else , that cause must necessarily carry the other two along with it , both which are likewise there tryable , both for this and divers other reasons in the first chapter of this third book exprest . but i am likewise here to shew , that by the inquisition taken at quinborough in edward the thirds time for direction of the admiralty jurisdiction , as is already set forth , the same were both then and before cognoscible in the admiralty court. by the th article of that inquisition , if a ship be let to freight for several prices or rates of affreightment , the whole freight shall be cast up rateably , and the mariners paid out of the whole ; so that the admiralty is to take cognizance of the several contracts of affreightment made by the merchants before the lading of their goods , and to cause the mariners to be paid their wages they had contracted for before their entring into their service on shipboard , according to the said agreements of affreightment : the words of the article are these . item se une nef soit affreta a divers pris de fretters lentier de tout laffret sera accompte ensemble & les portages paiez aux mariners selon lafferāt du fret de chūn tonnel lun acompte cōe dit est droittement avec quis lautre . divers rules there are in the maritime laws for direction , whether , and when mariners are to have their wages contracted for , when not , when all , when some part thereof , and what part thereof , which are guided by the rates of payment of freight . i shall instance but in one more out of this inquisition , and that shall be out of the very next article to that before set down , which followeth in these words . item une nef soit affrettee deurs quilque ' lien quae soit & ait certain jour limite de paiement de son fret en endenture , ou autrement les mariners scront paiez de la moitie de lieurs louyers a la charge de la nef , & de lautre moitie quant mesme la nef sera venus en lien de sa discharge se le maistre ou le seigneur de la nef ny veult come dit est avoir la nef lostel & de leure serout ilz paiez quant la moitie du dit fret est receu . it being plain then that this inquisition was in . edward the third's time taken for the direction of the judicature of the admiralty , it is as plain by these articles , that in his time the admiral had cognizance of contracts made for freight of ships and mariners wages , wheresoever the said contracts were made ; and then the statute of richard the second , cap. . being shut up with this clause of solonc ce que ad estre duement use en temps du noble roy edward ail nostre , doth no wayes take away the cognizance thereof from the admiralty , which is a thing i cannot too often repeat . neither resteth this inquisition here , but what matters were cogno●cible , and to be determined before the admiral by the laws which i have in the former chapter quoted out of the laws of oleron , and by divers others of them , as well as those there quoted , and by divers other articles in the foregoing part of this inquisition , being then fully settled and established . it is towards the latter end of this said inquisition provided , and care is thereby taken , that neither those matters , nor any of that nature should be elsewhere in any other court meddled with : i shall only take two or three articles together , which appoint , that at all admiralty sessions enquiries shall be made of all such as shall implead or sue any man in any other court then the admiralty , for any matters or things there cognoscible or determinable , either by the foregoing laws or articles , or otherwise : and those are the , , and articles of this inquisition , which follow in these words . item soit enquis de tous ceulx q' emple●●ent aueun home a la commune loy de la tre ' de chose appurtenant dancien droit a la loy marine . item soit enquis de tous juges qui 〈◊〉 et devant eulz aucuns plets apappurtenants par droiture a la court de ladmiral●● . item soit enquis de tous ceulz qui distourbent les lieutenants de ladmiral ou autres ses ministers de faire duement execution de se● mandements . these articles are not only for the enquiry of all such as have impleaded any man at the common law of the land , for any thing appertaining of ancient right unto the maritime law , but likewise of all such as have held before them any pleas of right belonging unto the court of the admiralty , according to the laws of oleron , and the several articles of this inquisition both settled and confirmed in the time of his reign : and to enquire of all such likewise which have at any time disturbed the lieutenants of the admiralty , or any other of the ministers of the court in the due execution of their mandats and warrants . i might here proceed further to shew that by that other inquisition translated out of old french into latine by roughton , and set down in the before mentioned black book of the admiralty , it likewise plainly appeareth that contracts made at land concerning maritime affairs were then , or before that time tryable in the admiralty court : for whether that inquisition was taken in edward the third's time , or before , doth not appear , the same bearing no date , and in that regard likely to be farre more ancient : but because the same is in most particulars agreeable with this inquisition , and in regard i have touched upon it already in the chapter where i have argued the self same matter from the laws of oleron , i shall here pass it over , and passe unto the other statutes which are instanced in against the cognizance of matters of this nature in the admiralty court. chap. v. the argument deduced out of the statute of the of r. . cap. . to prove the contracts made at land concerning maritime affairs , are not cognoscible in the admiralty court , answered . i am now come unto the second statute urged by sir edward coke , against the jurisdiction of the admiralty , which howsoever he took to be plain for his purpose , yet well weighed , and rightly considered from the original , in my judgment , maketh clearly against it , and confirms the construction i have made of the statute of the 〈◊〉 of ric. . in the second chapter of this book . i shall first set down the statute it self , as he rendreth it , then as poulton translateth it ; and lastly as the original truely hath it , which is worthy the observing ; and then come to set forth the true meaning and sence thereof , according to my best understanding . and first it is by him thus rendred , that the court of the admiral hath no manner of cognizance , power nor jurisdiction of any manner of contract , plea or querele , or of any other thing done , rising within the bodies of the counties , either by land , or by water , and also of wreck , of the sea : but all such manner of contracts , pleas and quereles , and all other things rising within the bodies of the counties , either by land , or by water , as is aforesaid , and also wreck of the sea , shall be tryed , termined , discussed , and remedied by the laws of the land , and not before , nor by the admiral nor his lieutenant in no manner . nevertheless of the death a man , and of mayme done in great ships , being and hovering in the main stream , in the great rivers , onely beneath the points of the same rivers , and in no other place of the same rivers , the admirall shall have cognizance . in the ancient statutes , which were made by way of petition and answer , poulton in his collection of statutes , generally setteth forth the petition by way of preface to the body of the statute , which he deduceth out of the answer , which in all statutes which concern not one jurisdiction and another , he hath done plainly and well enough , in the most , and yet not in all . the same method and order he hath not observed in the translation of these before mentioned statutes , which concern the jurisdiction of the admiralty , wherein he , or some other whom he hath followed , hath not dealt so fairly in my judgement , as he hath done in the translating and collecting of the rest ; as may well be observed by comparing them with the originals ; he rendreth this statute thus . at the great and grievous complaint of all the commons made to our lord the king , in this present parliament , for that the admirals and their deputies do incroach to them divers jurisdictions , franchises , and many other profits pertaining to our lord the king , and to other lords , cities and burroughs , besides those they were wont or ought to have of right , to the great oppression , and impoverishment of all the commons of the land , and hinderance and loss of the kings profits , and of many other lords , cities , and burroughs through the realm ; it is declared , ordained , and established , that of all manner of contracts , pleas , and quarrels , and of all other things done , rising within the bodies of counties , as well by land as by water , and also wreck of the sea , the admirals court shall have no manner of cognisance , power , nor jurisdiction ; but all such manner of contracts , pleas , and quarells , and other things rising within the bodies of counties , as well by land as by water ( as before ) and also wreck of the sea , shall be tryed , determined , discussed and remedied by the laws of the land , and not before , nor by the admiral , nor by his lieutenant in any wise ; nevertheless of the death of a man , and of a maim done in great ships , being and hovering in the main stream of great rivers , only beneath the bridge of the same rivers nigh to the sea , and in no other places of the same rivers , the admiral shall have cognisance , and also to arrest ships in the great flotes , for the great voyages of the king , and of the realm , saving alwayes to the king all manner of forfeitures and profits thereof coming ; and he shall also have jurisdiction upon the said flotes , during the said voyages , only saving alwayes to the lords , cities and boroughs their liberties and franchises . as for the exposition of this statute made by sir edward coke , i shall onl● leave it to be considered how it varyeth from poultons , and both vary from the original , aiming , as i cannot but believe , at their own ends , when meeting together in substance , will , being rightly considered , conclude one and the self same thing . but having here challenged mr. poulton , or him whom he hath followed , that he hath not dealt so fairly in the translation of these statutes , as he hath in the translation of the other , i shall here shew how , and wherein he hath mis-translated the same , before i proceed any further . my first challenge is , that in the praeamble to the first of these two recited statutes , he affirmeth that there was a great and common clamour and complaint , which had been oftentimes made before that time , &c. whereas there is mention of no one word thereof in the petition , which denoteth any manner of clamour , but only a modest complaint of things done by the admiralty courts , which indeed ought not to have been done , as plainly appeareth by the petition it self , and the answer thereunto set down before : but it is a thing meerly invented in disgrace of the admirals jurisdiction . and secondly , that there is , as i shewed before , left out the whole prayer of the petition , both that part which was granted , and that which was not granted , by which means he would wrest and set awry , as i conceive , the sence and meaning of the statute . thirdly , that in the preamble to this statute , as in the former , it is said it was made at the great and grievous complaint of all the commons , made unto our lord the king , &c. whereas there is mention of no one word which denoteth either great or grievous complaint in the petition ; but is only inserted as the other words were in the former statute . other things that were in this petition , are not set forth in the praeamble of the statute , which i shall not question , because i do not find that they were granted , but tacitely denied : and therefore shall proceed to the petition and answer , as they stand in the parliament roll in the tower , out of which this statute is deduced . and these be the words . item prient les comēs pour profit du roy , & de roylme que come les admiralls & lour deputes acrochent a eux diverses jurisdictions , franchise & auters profits que appertinent a roy & as auters shires & cities , & burghs quels ne solient avoir de droit a grant impoverishment de la come & arerisment de profits la roy que plese comander as ditz admiralls & lour deputes quils mettant avant en cest part'aint lour clayme del jurisdiction franchise & profits quils clament davoir appendant a lour office issint que declaration de lour clayme en escripit puisse estre fait en cest present parlament per ount la come ypurra saveir dont ele serra entendent ou dit admirall & dont nempe . rex , le roy voet que de touts maners , contracts , plees , quereles , & touts autres choses faitsz sourdantz deins les corps de countees ●i bien per terre come per ●awe & auxint de wreck de meere la court de la admirall eit nulle manner conisance , poair ne jurisdiccion , mes soient triez termines discus & remediez parles loyes de la terre , & nemye devant ne per l' adimirall , ne son lieutenant en nulle manner , nient meyns de mort d' home , & de maheim ●aitzes grosses niefs esteantz & hoverantz en my le haut fil des grosses rivers , tant solement pa avale les pontz de mesmes les rivers pluis procheyns al meer & en null autre lieu de mesmes les rivers eit l' admiral conisance & auxint darest des niefs en les grantz-flotes pui grantz viages du roy & de roylme , savant au roy touts manners forfaitures & profitz & ent provenantz & eit ensement jurisdiccion sur les ditz flotes durantz les dites viages , tant solement savant tondis as shires , cities & burghs lour liberties , & franchises . the translations of the fore part of this statute ( the praeamble excepted ) though they do somewhat differ one from another , and both in some sort from the original , yet in matter of substance they may very well be brought to the same meaning and construction . this statute was made within two years next after that of the th of richard the second , when the true meaning thereof rendered with the relation unto the petition ( according to the custome of those times when all statutes were so made , viz. by petition unto the king , and his answer thereunto ) was not forgotten ; and had that of the th of richard the second born that construction sir edward coke hath since made of it , the petition whereon this of the th of richard the second is founded , need never have , nor ever had been made ( i am confident ) but these western petitioners from whence all these petitions came , and not from so general and common a clamour as poulton makes it , as plainly appeareth by the records cited by sir edward coke in his th chapter of the jurisdiction of courts , towards the end thereof , under this title therein ( addition of some records of parliament ) not being satisfied concerning the plain meaning of the former act , pray now that the admirals and their deputies may bring into the parliament their claim of jurisdiction , franchise and profits , which they claim to belong unto their office , so that the declaration of their claim being made in writing in this present parliament , that may be reserved unto them , which shall belong unto the said admiral , and no more ; so that whether this part of the petition concerning the admirals giving in their claim in writing unto the parliament , was granted or tacitly denyed ; or whether they gave in any such claim or not , doth not appear , but it doth plainly enough appear unto me , that upon this petition , a true construction and exposition of the said former statute is made , which is multò magis contemporanea expositio , then that exposition made of it , by the first judgment given after twenty years at the common law against the admirals power and jurisdiction upon the ports and havens , which sir edward coke citeth in his said th chapter of his jurisdiction of courts , and calleth optima quia contemporanea , this then must therefore be melior expositio then his , and his not optima , which judgement is more at large handled and treated of before . now the exposition of that statute of the th of richard the second , made by this part of the statute of the th of the same king , is not disagreeable to the construction i have made thereof in the second chapter of this book , and is , as i conceive , absolutely in affirmance thereof , being so expounded . which exposition , as i have there said before ( being taken with relation to the petition , and joyning them both together as they ought to be ) rendereth it self thus . the admiral shall not meddle with any contracts , covenants , &c. of or concerning a thing done within the roylm . this saith plainly that of all manner of contracts , pleas and quarrels , and of all other things done , arising within the bodies of counties , &c. the admiral shall have no manner of cognizance , &c. but they shall be tried , &c. by the laws of the land , and in this both translations in substance made of this part of this statute by coke and poulton , agree with the original , which saith de touts manners , contracts , plees & quereles , & touts auters choses sur dantz deins les corps de counties , &c. la court la admirall eit nulle manner ' cognisance , &c. only here they would both purposely pare off ( though to little purpose ) the letter a from the word arising , , and translate sourdantz , rising ; somewhat to blind the true signification , and make the word that importeth most , signify little or nothing , or at least not to be taken notice of : but let it be arising , or rising , do but take notice of it , and then the contracts and covenants that the admiral is forbidden to meddle with , are the contracts and covenants of or concerning things done within the realm , saith the first of these two statutes ; and contracts , pleas , quarrels , and other things done arising within the bodies of counties , saith the other ; for so signifieth the word surdantz . so that contracts and covenants , &c. of or concerning businesses done at sea , the admiral is not forbidden to deal with , or take cognizance of , nor of contracts , covenants , &c. from them arising , no nor of things done within the bodies of counties , which have relation to the sea , or to navigation , or do from thence arise , is the admiral forbidden the cognizance , but hath full power and jurisdiction over the same , not at all in my apprehension restrained by either of these two statutes . now charter parties , or other contracts for freight or wages , tackling , furnishing , or victualling of ships , &c. cannot be said to be contracts , or covenants of or concerning things done within the realm , or arising from things done , or to be done within the bodies of counties , though they be there made , but are contracts , or covenants of , or concerning maritime businesses , done , or to be done at sea , and arising from such things , as are there done , or to be done , which be the finales causae of such contracts , from whence all actions , or motions do arise ; à fine omnis oritur actio ; it is causa causarum & impellit efficientem ad agendum , & praescribit destinatis ordinem ad agendum . the transportation of men , merchandizes , wares and commodities of all sorts , from one kingdom or nation to another , or from one port to another by sea ( a thing not to be done within the realm , or within the body of a county ) is the finis , or finalis causa , from whence all contracts ; or covenants , for freight , wages , tackling , furnishing , and victualling of ships do arise ; such contracts and covenants are therefore by these very statutes , in my opinion , cognoscible and tryable in the admiralty court , and no where else . if bargains , contracts , or covenants for land , houses , leases , money , or other land commodities , be made upon the high sea , and the deeds , bonds , bills , or other writings be there signed , sealed and delivered , here the construction of both the statutes will be , that though the bargains , contracts , covenants , &c. were made at sea , yet they were of , and concerning things done , or to be done at land , within the bodies of counties , and so cognoscible and tryable by the law of the land , which is true enough ; and then certainly in contracts and covenants made at land of , or concerning things done , or to done at sea , or arising from things there done , or to be there done , the same statutes ought to be afforded the same construction and interpretation . and had not this word surdantz arising , cleared this construction upon this statute , yet would the law it self have avoided that construction which hath been made of the other . for as in land affairs , by law every man is to be understood , to have contracted in that place , where that which is contracted for , is to be performed ; so in sea affairs doth the same law and rule hold ; and in this point , the law is clear , contraxisse unusquisque in eo loco intelligitur in quo ut perficeret se obligavit . f. de obligat . & actionibus , l. contraxisse ; ad hoc etiam facit lex , aut ubi f. de bonis authoritate jud . poss . & l. haeres sect. finali . f. de judiciis ; & l. . f. de judiciis . and this point is further amplified , nam locus contractus is proprè dicitur non in quo instrumentum fuit conscriptum , sed in quo conventio suam in se recepit perfectionem . decis . senatus dolani per grevellum decis . . n. . the master or owner of a ship doth contract with the merchant , for so much freight by the moneth , to transport his wares and merchandises by sea ; this contract is to be understood by law to have been made at sea , where the ship served , and where so much money for so many moneths grew due ; and the gloss upon the before cyted law , saith , cum essem bononiae , promisi tibi dare centum in civitate mutinae , & de hoc factus est contractus bononiae , dicitur quod possum conveniri mutinae ad illa centum , quasi ibi videar contraxisse . when i am at bononia i promise to give you , at the city of mutina , and hereof a contract is made at bononia , yet may i be convented at mutina for this , as if i seemed there to have contracted , so that i am subject to the jurisdiction of that city . so having contracted at london to transport any thing at , or by sea , at a certain rate by the moneth , i am subject to the maritime and sea jurisdiction . but it may be objected that fictio juris is allowed in all laws , and although a man be bound to pay money at one place , he may be sued at another , and so a man being bound to transport goods , or perform any other duty , or service at one place , yet he may per fictionem juris be fained or presumed to have been bound to perform the same elsewhere , and so be sued elsewhere . sol. i answer that it is true , if my fiction be of a thing possible , it may be allowed , as if i be bound to pay money at london , i may be sued at york , because it is possible i might have been bound to have paid it there ; but if my fiction be of a thing impossible , it may not be allowed ( for impossibilities nature abhorreth ) as if i bind my self to transport a merchants goods , to some port beyond the seas , it is impossible i should do it by land ; such a fiction , therefore that i have done it by land , is not to be allowed ; nor am i for non performance subject to any land jurisdiction . out of the grounds of this argument might be deduced a far larger debate , which by reason of the many differences between the civil and common law in this point , would be too tedious ; i shall therefore insist no longer thereupon , but come to the latter part of this statute , viz. nevertheless of the death of a man , and a maihme , &c. which had been more properly inserted amongst the particulars which concern the admirals jurisdiction upon the ports and havens ; but being here by sir edward coke enforced all together , i cannot here let it pass without the observation due unto it . he , as i shewed before , in this chapter rendereth this part of the statute thus : nevertheless of the death of man , and a maihme done in great ships , being and hovering in the main stream of great rivers , only beneath the points of the same rivers , and in no other place of the same rivers the admiral shall have cognizance ; excluding him from his power of the death of a man , and a maihme , &c. of arresting ships in the great flotes for the great voyages of the king , or of the realm , within the ports and havens , which both the original statute , and poulton's translation alloweth him , as appeareth by what is already set down in this chapter . and this only cognisance of the death of a man , and a maihme ( by this his rendring of the statute ) he will allow the admiral only beneath the points of these great rivers , which the original setteth down pontz , and poulton's translation rendereth bridges . all that is beneath the points of great rivers ( it is well known , and hath always been accompted the main sea ; so that by this construction of this part of the statute , he hath limited the admirals jurisdiction to the death of a man only , and a maihme , and arresting of great ships , &c. and that upon the main sea only , and will not allow him either contracts or covenants made at land , of , or for businesses there done , nor the cognizance of any thing done upon the havens ; but howsoever after this his construction of this word , he presently with one and the same breath , somewhat contradicts himself ; for in his very exposition of this clause , he saith thus : this latter clause giveth the admiral jurisdiction in case of death and maihme ( with neither of which we ever meddle ) but with all other things happening within the thames , or any other river , port , or water , which are within any county of the realm , so that the cognisance of this death and maihme , which before was allowed the admiral only beneath the points , is now acknowledged never to have been meddled with at all by the judges of the land , though done upon the thames , or any other river or port , but only other things there happening ; but how duly that was done , hath been before examined upon his very proposal of these two statutes , and what he promiseth , shall appear afterwards ; he apprehended that all men must needs grant ( which proveth farre otherwise ) that the admiral hath no jurisdiction or power upon the ports and havens , more then what this clause giveth him , and therefore saith he , this clause giveth the admiral further jurisdiction in case of death , or maihme ; and indeed by these words : nevertheless of the death of a man , and a maihme doen beneath the bridges ; it may at the first reading seem that the admiral should be before forbidden to meddle with the cognizance of any thing else there , and that the cognizance of these things should only be reserved unto him , which withall would seem very strange ; and therefore more duely weighed and considered , this word nevertheless doth not restrain the admiral to these particulars only , viz. the death of a man , and a maihme , and arresting of ships , &c. but the statute ordaining immediately before , that all contracts , pleas and quarrels , and all other things arising within the bodies of counties , as well by land as by water , shall be tried by the law of the land , lest the waters beneath the first bridges should be taken to be within the bodies of counties , and the admiral , by the words ( as well by land as by water ) should be excluded from his cognizance of things there done , under that general of as well by land as by water , falleth this exception or limitation , nevertheless beneath the bridges next unto the sea , pluis procheyn al meer , ( by them distinguishing the waters within the bodies of counties , from those that are not within the bodies of counties ) the admiral shall have cognizance of matters even of the highest nature , and greatest concernment , even of the death of a man , and a maihme , arresting of ships , &c. not exclusivè , excluding him from the cognizance of matters of an inferiour quality and nature ; for by the arugument à majore ad minus , he that hath power in the weightiest affairs , hath certainly power in matters of less consequence , and smaller concernment ; and it doth seem strange to me , that any man should think that the makers of this statute ( whom sir edward coke affirmeth to be curious therein ) should trust the admiral with the cognizance of the death of a man , and a maihme , &c. where they should not trust him with the sinking or maihming of a ship or vessel , ot of the cognizance of the pilferings , or stealing of a cable , or some such petty trifle : and it may as well be said that the admiral by this statute hath power to arrest ships in the great flotes for the great voyages of the common-wealth , but he hath no power to arrest the ships , guns , boats , tackle , or furniture ; or that when he hath arrested such ships , he hath no power to press mariners , or to take up victual , tackle , furniture , or ammunition for them ; and how agreeable to reason ( whereon all laws ought to be grounded ) this is , i leave it to the judgement of all men ; and though this arresting of ships may be said to be of no matter of cognizance , yet is there the same reason of the one , there is of the other . yet of matters cognoscible by the admiral , it may be questioned , why these two particulars , namely the death of a man , and a maihme should only be specified , and nothing in general be exprest , for the cognizance of other things there done , if the same were intended him , ratio est in promptu . sir edward coke could not say , nor can i believe any man else , or shew that before the making this statute , the common-law courts ever took cognizance of any matters concerning ships , or other vessels , their tackle , furniture , ammunition , or whatsoever else to them belonging or appertaining , but alwayes left them to the cognizance of the admiral , as matters belonging to the sea , and so proper to the sea jurisdiction ; but for the death of a man , and a maihme , which oftentimes happen above the first bridges ( where ships neither do , nor can come conveniently ) whereof the common law had cognizance , and not distinguishing of such death or maihme , whether the same was done above or beneath the said bridges , they had unduly taken cognizance thereof , as well beneath the bridges as above , as appeareth by what sir edward coke himself hath cited in this his th chapter of his jurisdiction of courts ; out of the th of edward the second , tit . coron . . where it is affirmed , that it is no part of the sea where one may see what is done one of part of the water , and of the other , as to see from one land to the other ; that the coroner shall exercise his office in this case , and of this the county may have knowledge , whereby ( saith he ) it appeareth that things done there are triable by the country ( that is by jury ) and consequently not in the admiralty court. now by his leave , it only appears that they would have made it law , that of the death of a man there , which concerneth the coroners office , they might take cognizance ; and this saith he is affirmed for law by stanford's pleas of the crown , lib. . fol. . b. in these words , if one be slain upon any arm of the sea where a man may see the land of the one part , and of the other , the coroner shall enquire of this , and not the admiral , because the country may take cognizance of it . and he voucheth the said authority of the th of edward the second , whereupon he concludeth in these words : so this proveth that by the common law , before the statute of the d . of henry the fourth the admiral had no jurisdiction but upon the high seas , which is no good conclusion , if well observed , as if it were impossble that the common law could not by some men be mistaken and made to encroach upon the jurisdiction of the admiralty , as the admiralty is accused to have done upon theirs ; whereas here we see it plain in the th of edward the second , they had , or would have done in this particular ; and therefore in express words doth this statute declare , that of the death of a man , and a maihme , the admiral shall have cognizance beneath the first bridges ; let no man therefore from this of the th of edward the second conclude that the admiral hath no jurisdiction of any thing done upon the ports and havens , or water , where one may see from one side to the other , since that one particular from which a general is argued ( an argument never allowed amongst scholars and logicians ) is by statute corrected . for the rest of the particulars , whereon sir edward coke insisteth , he instanceth not in any one before the making of these statutes ( saving that before mentioned , and thus corrected by this statute ) nor of almost years after the making of the last of three , and well nigh y●ars after the making of the first of them ; for it will be found to be little less then years from the second of henry the fourth , to the sixth of henry the . and little less then from the th of richard the second , to the th of henry the sixth , in which year the first judgement is said to be given in the court of common-pleas , upon these statutes , which sir edward coke affirmeth to be within years of the making of the statutes ; and therefore his first observation upon the judgment , raised from this mistaken ground is , that it is contemporanea expositio , which he saith is expositio optima , as is said before , to which i may without danger agree and consent ; for i shall in the next chapter save one shew that there is expositio magis contemporanea , and will not very well agree either with this , or any other of these latter expositions of those statutes ; and what is inferred upon this judgement by sir edward coke , that it depended in advisement and deliberation , in the court of common-pleas eight terms , as is before repeated , will clearly take away what is both by stanford and himself affirmed in general , upon that one particular , of the coroners taking his inquest upon the death of a man upon the water , where one may see from the one side to the other , by that of the eighth of edward the second , namely that it appeareth , that by the common law before the statute , things done there were tryable by the country ( that is by jury ) and not i● the admiralty court ; for if this had been so clear as both these two would make it , then needed not the judges of the common-pleas have advised or deliberated two days upon that point , wherewith they were troubled two years ; which long deliberation and advisement plainly sheweth , that they were at first very loth to adventure themselves upon the seas ( though at a port ) where they had never been before , yet at length they adventured , but truely , without any offence be it said , in a rotten barque , without either pilot or stearsman , as i conceive such a voyage hath seldome been taken since , untill sir coke's time , immediately after which some have followed his barque or vessel , and will so continue , if their voyage be not stopt . but i shall proceed unto the next statute , leaving that point of the cognizance of wreck of sea in this statute mentioned ( which is a thing that concerneth not contracts , &c. about maritime affairs made at land ) unto a chapter by it self . chap. vi. the argument deduced out of the statute of the second of henry the fourth , cap. . to prove the contracts made at land concerning maritime affairs , are not cognizable in the admiralty , redargued . the statute of the d of henry the fourth is likewise urged against the admirals cognizance of contracts and covenants made at land concerning maritime affairs , and hath been usually recited in prohibitions with the other two . this statute is thus rendred by sir edward coke . it is enacted ( saith he ) that the act of the th of richard the second , cap. . be firmly holden , and kept , and put in due execution , and further at the prayer of the commons , that as touching a pain to be set upon the admiral , or his lieutenant , that the statute and the common law shall be holden against them , and the party grieved shall recover his double damages . for the first part of the statute he apprehendeth that he hath given a due exposition of that of the th of richard the second , by setting down the answer to the petition , without any relation to the petition it self , and then indeed this statute to ordain that the former should be firmly holden , and kept , and put in due execution , would have made somewhat to his purpose : but if that first statute be duly examined , and receive a due construction , then i conceive this will no wayes advance his cause . he further inferreth , that because this statute doth ordain , as touching a pain to be set upon the admiral , or his lieutenant , that the statute and common law should be holden against them ; that therefore it appeareth by this act , that the statute of the th of richard the second is but an affirmance of the common law , promiseth shall afterwards appear , which i with much diligence in my reading expected , but could find nothing more , then what ( as i hope ) hath in its due place received an answer . and if we examine the original statutes , and poulton's translation of this part of this statute , they will plainly shew what statute , and what common law shall be holden against them . i shall therefore here set down the statute according to the original , and likewise poulton's translation thereof ; and the original is by way of petition and answer in these words . parl. . hen. . mem . it. prient les comes que les estatutz faitz en temps le roy rich. touch la jurisdiccion de courte admiraltie soient tenuz & firment gardez & que ladmiral , & ses lieutenantz ne teinont null mannor de plèe deinz la court d'admirall en contre la forme & ordinance des dits estatutz & sils fount a contre en courgent la peine xx . l. paiant la moite au roy , & lautre moite a perte greve . r. soit lestatute ent fait tenuz & gardez & outre ceo quant a peine metre sur da'dmirall ou son lieutenant soit lestatute & la come ley tenuz denez eux & que rely que loy sente quereue en contre la forme de le dit estatute , eit sa occasion per briefs foundne sur lecas evers celui gensi pur sue en la court d'admiraltie , & recover ' ses dammages denums mesme le pursueant au double & encourge mesme le pursuant la peine de x l. en ●i le roy pur sa pursuit ensi faitz sil soit attemte . which statute is by poulton rendred thus . item , whereas in the statute made at westminster , the year of the said king richard ▪ amongst other things , it is contained that the admirals and their deputies shall not intermeddle , from hence forth of any thing done within the realm , but only of a thing done upon the sea , according as it hath been duely used in the time of the noble king edward , grandfather to the said king richard , our said lord the king , willeth and granteth that the said statute be firmly holden and kept and put in due execution ; and moreover the same our lord the king by the advice , and ascent of the lords spiritual and temporal , and at the prayer of the said commons , hath ordained and stablished , that as touching a pain to be set upon the admirall , as his lieutenant , that the statute , and the common law be holden against them ; and that he that feeleth himself grieved against the form of the said statute , shall have his action by writ , grounded upon the case , against him that doth so pursue in the admiralty court , and recover his double damages against the pursuant , and the same pursuant shall incurre the pain of ten pounds to the king , for the pursuit so made , if he be attainted . now it plainly appeareth by the original , which i have here verbatim set down , that this statute is onely in confirmation of the former statute as originally enacted , according to the true construction thereof , which taken together with that exposition of the th . of richard the . hath truely rendred of that and the same , being taken with relation to the petition as i conceive it ought to be , and by sir edward coke and poultons translations here , it is in affirmance of the first of them onely , as poulton himself hath in his translation thereof rendred it ; so that neither of these two translations agree with the original , saving in this , that he that shall find himself aggrieved against the form thereof , shall recover double damages against the pursuant . now what may be called damages that shall be recovered double by this statute , is a great question : if a man do sue in the admiralty court , and there recover , and is paid a just and due debt of l. which he ought to have sued for in the common law , and might have there surely recovered , the question whether the other party can be said to be damni●●ed , that l. over and above his expences and trouble ; i cannot imagine any reasonable man will say he was . what shall be thought then of the leading case , hil. . h. . in the common pleas , cited by sir edward coke for the first that received judgement in that court upon this statute , of double damages , who saith that bartholomew putt sued john burton in the admiralty , for that he by force of arms , three ships of the said bartholomews with his prisoners and merchandizes to the value of marks , odd money , being in the said ships , did take , and carry away , supposing the taking to be super altum mare , whereas it was in the haven of bristow : whereupon the said burton sued the said putt upon the statutes , and a verdict was found for the said burton against the said putt , and damages assessed unto l. and judgement given double for l. in this place , i shall set aside the question , whether this case was proper to the admiralty court , or the common law , having spoken to that purpose already in a place more proper ; and here onely examine the question , concerning the damages , and them doubled . it doth not appear by any thing is said by sir edward coke , that putt had either received from , or so much as recovered of the said burton the said marks , or any part thereof ; and yet the said burton is found thereto be damnified the said marks , besides l. more for his expence and trouble , all which is double by the judgement ; so that by this judgement he was barred and hindred any tryal for his marks , or whatsoever else he should prove himself to be damnified , which no man can or could then say he was not to have recovered in one of the said courts , but was condemned to pay l. damages to burton , who was damnified nothing more then his expence , and some trouble in a wrong court ( as is pretended ) for what he had unjustly done , for ought ever appeared , or was ever attempted to be made appear , and he hereby acquitted of that act , how unjust soever . if it might have been granted ( which may not be ) that the admiral had no jurisdiction nor cognizance of this cause , yet surely that court which had , might first have examined whether burtons act , complained of , was an unjust act or not , and whether putt should not there have recovered marks as well as in the admiralty court ; and certainly if he should , then cannot i conceive how burton can be said to be damnified that marks which might elsewhere have been recovered , and obtained against him ; nor can i judge that he being sued for marks , which neither were or could there or elsewhere have been obtained against him , was thereby damnified marks . i shall therefore leave it here to be considered , whether such a judgement once given at the common law , is to be held firme and continued for law ever after , or not . but i must not pass over a main objection , which might have been , or may hereafter be raised out of this statute , as the same is by poulton rendered , which is this : the statute ( as he rendereth it ) saith , that whereas in the statute made at westminster , the thirteenth year of king richard the second ▪ amongst other things , it is contained that the admirals and their deputies shall not intermeddle from henceforth of any thing done within the realm , but only of a thing done upon the sea , &c. so that hereby it may seem , and be very well urged that this statute doth clearly confirme the statute of the th of richard the second , as the same is both by poulton and sir edward coke rendered and translated without any relation to the petition : but if this very statute be duly considered , it will plainly appear that poulton hath here thrust in a repetition of the former statute , according to his own former rendering thereof , to make the same good , which the original before inserted in this very chapter , being consulted withall , will not allow him ; for there is not one word of this repetition mentioned either in the petition or answer , quod vide ; for the petition is that the statutes made in the time of richard the second touching the jurisdiction of the admiralty , comprehending the one as well as the other , as well the latter which rendreth the true construction of the former , according unto the true meaning thereof , taken with relation to the petition , as i cannot conceive but that it ought to be , as the former of the th of richard the second may be held and firmly kept , and that the admirals and their lieutenants ▪ may not hold any manner of plea in the court of the admiralty , contrary to the form and ordinance of the sai● statutes , which by the answer is granted in generall , without repeating any part , either of the one of them , or of the other . so then these former statutes , being onely considered with relation to the petitions , whereunto they are answers , i conceive this statute affordeth no argument at all against the admirals jurisdiction , or cognizance of contracts made at land , concerning maritime affairs , more then what the other afforded ; and so i hasten to what i promised in the chapter preceding this . chap. vii . that the admiral by these statutes , was not barred the cognizance of maritime contracts , though made at land , made appear by the practice of those times , proved out of ancient records remaining in the tower of london . the judgment given in the case of burton and putt by sir edward coke , said to be the first that can be found , that was given upon the statutes , against the admiral 's having jurisdiction any where , but upon the high seas , and by him said to be within years of the making of the statutes , and so contemporanea expositio , the time being duely computed , as i have said before , will be found to have been given full years after the last of them ; for the parliament , wherein the last of them , viz. the statute . h. . was made , was begun and holden at westminster in the utas of st. hillarie , anno domini ; and in hillary ▪ term , being . h. . was this judgement given , so that the largest part of four in this computation , is abated , to bring this judgement within the compass of a contemporary exposition ▪ but indeed this judgement must be grounded as well upon the two former , as this latter , and principally upon the first of them ; and then is this judgement years and more after the making of that statute , the same being made in anno . this statute therefore having not born this construction or exposition from the time of the making of it , until years after , and upwards , this being the first judgement thereupon ( as is confest ) and that given by the judges , not without a great deal of doubting for the space of eight terms , before they could agree , or would adventure to give that construction , or such exposition thereof , though tending ad suam jurisdictonem ampliandam , i cannot apprehend that this was contemporanea , or optima expositio , nor do i find by all the particulars cited by sir edward coke concerning this matter , that this judgement was ever pursued as a president or example , by the same , or other succeeding judges . indeed two actions he instanceth in brought upon the same ground , one by cupper against rayner , and the other by wydewell against rayner , brought both in the court of the common pleas , about six years after this judgement , viz. paschae . h. . but he speaketh not of any judgement given therein , which if there had , he would not willingly have omitted to have inserted the same , which maketh me verily conceive that no judgement was given upon either of them , nor indeed can i think that the former judgement by him cyted , ever took any effect , or was ever put in execution . if sir coke's rule be true , that contemporanea expositio est optima , a contemporary exposition is best , then is not this exposition made by this judgement the best , though it may be magis contemporanea , more contemporary then the other judgements , or expositions given longer after , viz. paschae eliz. which he instanceth in , that evangelist constantine having covenanted with hugh gynn , that his ship should sail with merchandizes of the said gynn to muttrell●in ●in spain , and should there remain for certain days , upon breach of which covenant , gynn brought an action of debt of l. in regard the charter party was made at thetford in the county of northfolk , and had judgement in the kings bench ; and that mich. . and . eliz. of an action of case brought upon a policy of ensurance , so that the former may be said to be melior expositio , a better exposition then those latter , because it seemeth to be the foundation whereon they are grounded , and therefore more authentique . but if i shall shew that within a farre shorter compass of time after the making of the said statutes then any of those judgements were given , which he hath instanced in , no such exposition was made of the said statutes , but that the admir●●ty was held to be the proper court for such causes , and the civil law fittest to judge them by , then will mine be multo magis contemporanea expositio , a farre more contemporary exposition then his , and by his own rule , si non optima , multo tamen suis melior , if not the best , yet farre better then his . i shall therefore instance in an action brought in the admiralty within three years after the making of the first of these statutes , and in august next after the making of the second of them , and in the same year that this last statute was made , as will appear by the record it self , which i shall in this chapter set down at large . the action was brought in the admiralty of the west , before nicholas clifton , then lieutenant to the earl of huntingdon admiral of the western parts , by peter draper and robert ancleyn of sherburne , merchants , against william stillard mariner , in a cause of contract , and letting to freight a ship of the said william stillard , called the lethenard of haniel , to sail thence to the isle of ree , for salt , there to be had , and carried or brought back from thence to weymouth or southampton , at the choyce of the said merchants , as by the charter-party of contract and affreightment of the said ship indented , and between the said parties made , evidently appeared : and this action there sometime depended , and was proceeded in unto sentence without any interruption , or being any wayes hindered by any manner of objecting either of the said two statutes , against the proceedings in the said cause , and sentence was given for the said stillard , from which the said draper and ancleyne appealed unto the king in chancery , and a commission was from thence by the lord chancellor awarded unto five other civilians , or to any four , three , or two of them , giving them full power and authority to take the said cause of appeal into their cognizance , to be proceeded , heard , and discussed in due forme of law , and the same to determine according to law . all which will appear by the commission it self , upon record in the tower , which i will here set down verbatim . r. dilectis & fidelibus suis johanni cobbam , magistro johanni bennet , magistro johanni runhale , magistro thomae southam , magistro johanni combe salutem . sciatis cum nuper notâ lite seu controversiâ in curiâ nostrâ admiralitatis angliae in partibus occidentalibus coram dilecto & fideli nostro nicholao cliffton tunc locum tenente clarissimi fratris nostri comitis huntindon , admiralli nostri in partibus praedictis , inter petrum draper , & robertum ancleyne de sherbourn , mercatores , partem actricem ex una parte , 〈◊〉 willielmum stillard marinarium partem ream ex altera , occasione affrectationis , conductionis , sive locationis cujusdam navis praedicti willielmi lethenard de hainnel nuncupat . ad veland . ad partes de la ray pro sale ibidem habendum & praedict . inde carcandum , & deinde apud weymouth vel southampton , ad electionem mercatorum reducend . ut occasione conventionum & contractuum affrectationem , conductionem navis praedictae concernen . de quibus per chartas indictatas inter personas suprascriptas evidenter apparet , aliquandiae vertebatur praedictus locum tenens perperam in causa praedicta procedens , & parti williemi plus debito favens , sententiam contra eos petrum & robertum pro parte dicti willielmi tulit , diffinitivam , iniquam , invalidam sive nullam , ad instantiam ad procurationem dicti willielmi subdolas & injustas minus justè ut asseritur in ipsorum petri & roberti praejudicium non modicum , & gravamen ; a qua quidem sententia diffinitiva & caeteris gravaminibus praetensis fuisset , & sic per praedictum petrum no'ie suo & procuratorio no'ie dicti roberti ad nos & nostram audientiam legitimè ut praetenditur appellatum , quam quidem appellationem idem petrus intendit ut asserit pro se & dicto roberto prosequi cum effectu , ac nobis supplicavit ut sibi & praefato roberto super appellationem praedictam certos judices dare seu assignare dignaremur ; nos supplicatione hujusmodi , tanquam juri consona annuentes , vobis quatuor , tribus vel duobus vestrum in solid . de quorum fidelitate & industria fiduciam gerimus specialem , committimus vices nostras , ac plenam tenore praesentium potestatem ac mandatum speciale ad audiendum , cognoscendum , & procedendum in causa seu causis appellationis hujus , nec non in causa in hac parte principali , prout dictaverit ordo juris ipsam & ipsas cum suis emergentibus , incidentibus & connexis quibuscunque secundum juris exigentiam , discutiend . & sine debito terminand . & ideo vobis & cuilibet vestrum mandamus , quod vocetis coram vobis quatuor , tribus , vel duobus vestrum partibus praedictis , ac aliis in hac parte , quos de jure fore viderit evocand . auditisque in dicta appellationis caâ unâ cum principal ▪ eorum rationibus & allegationibus circa praemissa diligenter intendatis & as faciatis & exequamini in forma praedicta . damus autem praefato admirallo nostro ac ejus locum tenenti , nec non universis & singulis officiariis , ministris , ligeis , subditis , ac aliis fidelibus nostris quorum interest tenore praesentium firmiter in mandatis quod vobis quatuor , tribus & duobus vestrum in forma dicti mandati nostri , prout ad ipsos pertinet , intendentes sint & respondentes , consulentes , & auxiliantes , & vestris mandatis obedientes prout decet . in cujus , &c. . apud westm . . augusti . and in the th year of the sam● kings reign , john coppin matiner and owner of the ship the gabriel of sancta osicha of burdugall sued william snoke and thomas saxtingham , merchants , for freight of that ship ; first at the common law , where the action lay not , and so failed ; and then in the admiralty ; but before sentence appealed to the high constables court , where his appeal lay not ; and was therefore from thence dismissed , and condemned in expences ; who then appealed to the king in chancery , and had a commission from thence directed unto richard stury knight , mr. john bennet official of the court of canterbury , and mr. michael sergeaux dean of the arches london , to hear and discusse the said cause in due form of law , and to determine the same according to the rules of the civil law , they being all three civilians : all which likewise appeareth by the commission it self upon record in the tower , which followeth in these words . rex , dilectis & fidelibus suis richardo stury militi , magistro johanni bennet , officiali curiae cant. & magistro michaeli sergeaux decano de archubus london , salutem . sciatis quod cum willielmus snoke & thomas saxtingham , mercatores quandam navem vocatam le gabriel de sancta ossica apud burdegal , in quodam loco vocato le umbier . cum decem & septem doliis & una pipa vini caricassent , & cum quodam johanne coppin marinario de comitatu essex , magistro navis praedictae conventionassent quod ipsa vina praedicta usque gadenasse in partibus essex ' salvo duceret , solvendo sibi pro quolibet dolio , viginti solidos , & pro una pipa decem solidos , ut accepimus , & licet idem johannes conventionem suam bene & fideliter compleverit , praedicti tamen willielmus & thomas in hâc parte debitè requisiti praefato johanni in parte vel in toto juxta conventionem suam praedictam satisfacere non curarunt , prout idem johannes conqueritur , super quo idem asserens se versus praedictos willielmum & thomam tam per communem legem regni nostri angliae quam in curia admiralli nostri versus partes boreales diu sequutum fuisse & nullum remedium in hac parte habere potuisse , dictos willielmum & thomam in curia constabularii & marescalli angliae ad respondendum sibi in causa praedicta summoneri & venire fecit , ac quendam libellum super actionem praedictam in eadem curia coram dilectis & fidelibus nostris johanne cheyne locum tenente constabularii praedicti , & willielmo faringdon locum tenente dicti marescalli nostri versus praedictos willielmum & thomas adhibuit & proposuit , idemque johannes & willielmus locum tenentes in causa praedicta , minùs rite & indebitè procedentes , ac judicialiter affirmantes & allegantes ipsos nullam jurisdictionem in hac parte habuisse praefatos willielmum snoke & thomam à cura praedicta , & de instantia praedicti johannis coppin sine causa rationabili quacunque dimiserunt & deliberaverunt , & ipsum johannem coppin in quadam magna pecuniae summa argenti pro custibus ipsorum willielmi snokes & thomae in hac casu coram eis in eadem curia factis per sententiam suam seu judicium condemnârunt , & dictos custus ad quandam summam nimis excessivam taxarunt & limitarunt , de quibus quidem sententia judicio & condemnatione expensarum , & de taxatione earundem & aliis gravaminibus praetensis praefato johanni copyn in hac parte illatis , & per partem dicti johannis ad nos & nostram audientiam legitimè appellatum sicut per instrumentum publicum super hoc confectum plenius apparet , qui quidem johannis appellationem suam praedictam incendit ut asserit prosequi cum effectu , & nobis supplicaverit ut sibi super appellatione sua praedicta certos judices sive commissarios dare & assignare dignaremur , nos supplicationi praedictae tanquam juri consonae annuentes , vobis de quorum fidelitate & industria fiduciam gerimus specialem commitimus vices nostras , & plenam tenore praesentium potestatem ac mandatum speciale ad audiendum , cognoscendum ; & procedendum in causa , sive causis appellationis hujus prout dictaverit ordo juris , ipsamque & ipsas cum suis emergentibus , dependentibus , incidentibus , & connexis quibuscunque secundum juris exigentiam discutiend . & debito fine terminand , ac etiam ad testes quoscunque per utramque partium praedictarum in hujus causa appellationis , coram vobis judicialiter producentes , sine dolo , vel fraude , odio vel favore , aut aliàs injustè subtraxerint veritati testimonium perhibere compellandum . et mulctae alteriusque temporalis cohertionis cujuslibet potestate ; & ideo vobis mandamus quod vocatis coram vobis partibus praedictis & aliis quos in hac parte fore videretis evocand . auditisque in hujus causis appellationis earum rationibus & allegationibus circa praemissa diligenter intendatis & ea faciatis & exequamini prout justum fuerit & consonum rationi ; volumus etiam quod si aliquis vel aliqui verstrum inchoaverint vel inchoaverit procedere in praemissis , ali●s vel alii vestrum libere procedere valeat sive valeant , in eisdem licet inchoantes absentes inchoans absens fuerint vel fuerit etiam nullo impedimento legitimo impediti vel impeditus . in cujus , &c. t. r. apud westm . xiiii die novembris . after this , and after the making of the other statute of the d of henry the fourth , one edmund brookes , mariner , brought his action in the admiralty court before john sturmister , lieutenant general of edmund earl of kent , admiral of england , against john birkyrne , richard honesse , john walls , and william burton of kingston upon hull , merchants , partners in a maritime cause of contracting and taking to freight of a certain ship , called the laurence of gyppelwich , and the same was there proceeded in unto sentenc , and sentence was given for the said edmund brookes against the said john byrkyrne and company ; from which sentence the said byrkyrne and company appealed unto the king in chancery , and there obtained a commission of appeal from thence directed unto john kington and others , who by virtue thereof proceeded in the said cause unto sentence , and thereby reversed the former sentence , and condemned the said brookes in expences ; from which said sentence the said brookes again appealed unto the king in chancery , and obtained a commission of review directed unto the then bishop of london , and six civilians , to review , discusse , and hear the said cause in due course of law , and to determine the same according thereunto . and this last commission of review was granted but eight years after the making of the said statute of the d of henry the fourth ; and therefore the cause must needs be instituted and begun in the first instance some years before , nearer unto the time of the making of the said statute , the same having been proceeded in even unto seentences in two several instances before the granting of this commission : all which appeareth by the commission of review it self , which is upon record in the tower in these words following . rex venerabili in christo patri r. episcopo london , ac dilectis , ac fidelibus suis thomae beauford , thomae eppingham , magistro thomae field , roberto thorley , willielmo senenocks , & johanni oxney , salutem , ex parte edmundi brookes marinarii nobis est ostensum , quod licet magister johannes sturmyster nuper locum tenens generalis edmundi nuper comitis cantiae nuper admiralli nostri angliae in quadam causa maritima quae in curia admirallitatis occasione affectationis conductionis sive locationis cujusdem navis laurence de gippelwich coram praefato johanne tunc judice in ea parte competenti inter praefatum edmundum partem actricem ex una parte & johannem birkyrne , richardum hornesse , johannem walas & willielmum burton socios ut dicitur in causa praedicta mercatores de villa de kingston super hull partem ream , ex altera vertebatur quandam sententiam pro parte dicti edmundi contra partem praedictorum johannis birkyrne , &c. rite & legitime tulerit definitivam , pars tamen eorum johannis birkyrne , johannis , &c. a sententia praedicta ad nos & nostram audientiam frivole appellavit , quo praetextu quidem magister johannes kingston & alii colore ejusdem commissionis nostrae eis ad cognoscend . & procedend . in dicta causa appellationis praetens . & negotio in ea parte principali praetens . directae perperam & illegitimè procedentes ac dicti parti appellanti plus debito faven , dictam sententiam pro parte dicti edmundi ut permittitur , latam licet nullam habuerint jurisdictionem , infirmarunt , cassarunt , irritarunt , & adnullarunt , ac ipsum edmundum in expensis per partem dictorum johannis birkyrne , richardi , johannis , &c. in praedicta praet●●●sa causa appellationis & negotio principali praetenso & eorum actione factis parti eorum solvendis per praetensam suam sententiam diffinitivam inique latam erroneam invalidam cominaverunt in omnibus minus juste in ipsius edmundi dispendium non modicum & gravamen , unde per partem praedicti edmundi sentientis se ex praemissis sententiis & expensarum condemnatione indebite pergravari ab eisdem sententia & expensarum condemnatione ad nos & nostram audientiam est appellatum , sicut per instrumentum publicum inde confectum est in cancellaria nostra ostensum , plenius poterit apparere , idem edmundus nobis supplicavit , ut in dicta causa appellationis suis procedere , & sibi justitiam in hac parte facere digneremur . nos supplicationi praedictae annuentes , vobis , &c. quorum alterum vestrum vos praefatum episcopum & thomam field , &c. i shall instance only in one more , one alan wagtost sued thomas johnesson and thomas rafin for l. for freight of the half of a vessel called the christopher of boston , as master and owner of half of the said vessel : and the said cause was proceeded in before henry bole , lieutenant-general of the admiralty court , which cause was from him appealed unto the king in chancery , and a commission in the eleaventh year of henry the fourth , being but nine years after the making the said statute , and the cause in the first instance must needs have been begun some good space of time before that . the commission of appeal runneth thus . rex dilectis & fidelibus suis richardo rochefort chivaler ' , magistro henrico ware , magistro richardo brinkley , & magistro thomae field , salutem . sciatis quod ●um ut accepimus 〈◊〉 in quadam causa maritima pecuniaria viginti & quinque librarum prae●●●●●ffrectamenti medietatis cujusdam navis vocat ' la christophre de boston ad alanum wagtoft de villa sancti bothoni ut ad dom . & possessorem ejusdem medietatis , aliis pertinen . partem actricem & prosequentem ex parte una , & thomam jonesson & thomam rafin de villa praedicta partem ream defendentem ex parte altera , quae coram henrico bole locum tenen . general . curiae admirallitatis angliae , &c. now for the three records instanced in by sir edward coke , and brought out of the courts of the common law , against the admirals jurisdiction upon the ports and havens , and in matters of contracts upon businesses to be agitated at sea , i have shewed four out of the chancery which was then ( as by his own setting forth appeareth ) the only court enabled to grant prohibitions in case the admiral medled with causes belonging unto the common law : for thus he saith . sundry towns of the west part praying remedy against the officers of the admiralty , for holding plea of matters determinable by the common law , which they pray may be revoked , the kings answer was . the chancellor by the advice of the justices upon hearing of the matter , shall remit the matter to the common law , and grant a prohibition . and as these records are of farre greater antiquity then those by him instanced in , so are they farre more contemporary with the said statutes ; and therefore , by his own rule , of farre greater authority . besides , these three records by him instanced in , do but de facto set forth what was done , and that but as those three several times in those courts , sed quo jure , non arguitur . but it may be very well apprehended , that in years after the making of the last of those statutes , and after the making of the first of them , the petitions upon which those statutes were grounded , and from whence they must receive a right construction , began to be forgotten ; but after the same were revived and brought again into remembrance , and admiralty court had no more such interruptions , but proceeded as before untill the times of those actions wherein he instanceth which were brought in farre later times then the former , when the said petitions , whereunto the answers have , or ought to have reference , were ( as it were ) again quite out of remembrance : for if from the time of the making of those statutes , untill the time of the last of the judgments instanced in , all the particular actions that have been brought , and ●●●tences that have been given in the admiralty for things done upon the ports and havens ( against the cognizance of which causes one of these judgements is brought ) and all the actions brought , and sentences that have been there given upon contracts made at land for businesses to be agitated at sea , against which the other two judgments are brought , should be set forth , i might boldly say there would be many hundreds for one ; and i might very well , and very justly cite divers of those records out of the registry of the admiralty for the jurisdiction of that court in matters of this nature , which i doubt not but ought to be as good proof for the jurisdiction of that court whereunto they do belong , as those few records pickt up out of the registry of the common law courts ought to make for that jurisdiction whereunto they belong ; nay by those records of the admiralty , and the constant , the continued , and the general practice and usage of taking cognizance of causes of this nature , it plainly appeareth that the jurisdiction thereof anciently did , and still doth belong unto that court ; for in land businesses whose land or soil shall we judge that to be , but his who hath generally , continuedly , and constantly reapt the crop , and not his who hath at some times come by and taken up a a shock or two , and so done as much as he which reapt where he never sowed ? which he must needs do which is neither verst nor skilled in jure scripto , in that law which is positively set down for that purpose , but shall judge thereof at randam , and will so do because others have done so before him ; nor under correction can it be held to be any good rule of justice to judge by president ; for if one man , or more , have judged unjustly , and not according to law , i would not have it said , that he which knoweth the law , is notwithstanding bound to judge as the other did , because he hath a president for it . but i shall pass them presidents over , and as i have in the second book of this treatise shewed you , that even by records out of the chancery and common law , things done upon ports and havens are cognizable in the admiralty court , so i shall here shew that by records of the same courts the admiralty hath cognizance of contracts made at land of and concerning maritime affairs and businesses agitated , or to be agitated at sea . chap. viii . that by other records out of the chancery , contracts made at land concerning maritime affairs are cognoscible in the admiralty court. one lodowick sutton sued john pettite of abville in picardy , merchant , andrew lord , and daniel lancel , in the admiralty court , upon several maritime contracts made between them in the city of london , the said pettite , lord , and lancel upon their complaint made in chancery , that they were sued in the admiralty court upon several contracts and agreements made between them upon ordinary trading and bargaining within the city of london , obtained a supersedeas grounded upon the before mentioned statutes , to stay the proceedings there ; but upon further complaint of sutton made unto the said court , and upon shewing that the said contracts , though there made , were maritime and within the jurisdiction of the admiralty , a writ de procedendo was awarded , commanding that the said admiralty should proceed in the said cause according to law , and the custome of the said admiralty court , and to do justice between the said parties , notwithstanding the said supersedeas . the writ de procedendo runneth thus . henricus ostavus dei gratiâ angliae & franciae rex , fidei defensor , dominus hiberniae , & in terra supremum caput anglicanae ecclesiae , clarissimo consanguineo suo willielmo com. southampton admirallo suo angliae , sive ejus locum tenenti vel deputato salutem . cum nuper ex quodam relatu johannis petite de abvile in picardiâ , andreae lord , & daniel lancel intellexerimus quod vos praefatos johannem , andream & danielem coram vobis in curiâ admiralitatis nostrae de diversis contractibus , & aliis conventionibus infra civitatem nostram london , & non super altum mare fact ' & emergen . in placitum ad sectam lodowici sutton contra formam diversorum statutorum inde in contrarium factorum , & provisorum traxistis : nos igitur statuta praedicta observari , & praefatos , johannem , andream & danielem contra formam eorundem statutorum nullo modo placitari seu inquietari volentes per breve nostrum vobis nuper mandaverimus quod vos praefatos johannem , andream , & danielem coram vobis in curiâ admirallitatis nostrae praedictae , occasione in placitum non traheretis , sed quod vos placito illo coram vobis in curia praedicta ulterius tenend . omnino supersederetis , & ipsos johannem , andream & danielem contra formam statutorum praedictorum non molestaretis in aliquo seu graveretis , quibusdam tamen certis de causis nos moventibus , & specialiter pro eo quod ex parte praedicti lodowici nobis graviter conquerendo est monstratum quod contractus & conventiones praedicti inter ipsum lodowicum & praefatos johannem andream & danielem habiti & conventi infra jurisdictionem curiae admirallitatis facti & contracti , & quod praedicti johannes , andreas & daniel pro contractibus & conventionibus praedictis in placitum praedictum contra formam statutorum praedictorum in curia praedicta minimè tractari extitissent . et ideo vobis mandamus quod in placito illo secundem legem & consuetudinem curiae admirallitatis nostrae praedictae procedatis , & partibus praedictis justitiae complementum in hac parte haberi fac ' dicto brevi nostro vobis prius indè in contrarium directo in aliquo non obstan t. meipso apud westm . xiv die novembris , anno regni nostri vicesimo nono . horpole . in the same year one lodowick davy sued john turner in like manner upon several maritime contracts and agreements made between them in the city of london ; likewise , and upon the said turners like complaint in the chancery a supersedeas was awarded , which in the same manner , and upon the same ground , was dissolved by a writ de procedendo ; the writ de procedendo is the same with the other , saving that they differ in the date and names , &c. i shall therefore spare the setting of it down . in the year of henry the eighth , myles middleton , ralph hall , and henry dyconson , merchants of the city of york , being sued before robert bishop of landaffe , and others the kings commissioners for his northern parts , upon maritime businesses and contracts , the said middleton , hall , and dyconson complained in chancery ; and a supersedeas was in the kings name awarded out of the chancery , directed unto the said bishop , and the rest of the kings commissioners , straitly charging and commanding them altogether , and without delay , to forbear all examination and cognizance in any civil causes , or maritime affairs , of or upon whatsoever contracts , pleas , or complaints between merchants , masters , and owners of ships , and others whatsover , with the said merchants , masters , or proprietors , for any thing by sea or water in any manner whatsoever to be expedited or contracted , taking their rise or original either in the parts beyond the seas , or upon the high seas , or any where else where his high admiral had jurisdiction , whether by passage or voyage at sea , or whatsoever way appertaining unto , or howsoever touching or concerning maritime affairs against the said miles middleton , ralph hall , and henry dyconson , by whomsoever before them or any of them moved , or howsoever to be moved , or attempted , remitting the parties ( if they would sue ) unto his court of amiralty of england for justice to be to there administred according to the maritime laws . the supersedeas it self runneth in these words . rex , &c. reverendo in christo patri roberto landavensi episcopo , ac aliis commissionariis nostris in partibus nostris borealibus , & eorum cuilibet , salutem . vobis & cuilibet vestrum stricte praecipimus & mandamus , quatenus ab omni examinatione & cognitione in aliquibus causis civilibus , seu negotiis maritimis de & super quibuscunque contractibus placitis vel querelis inter mercatores ac dominos & proprietarios navium , aut alios quoscunque cum iisdem mercatoribus , dominis , seu proprietariis pro aliquo per mare vel aquam qualitercunque expediendum contractis sive in partibus ultramarinis , vel super altum mare , aut alibi , ubi magnus admirallus noster habet jurisdictionem originem trahentibus , fething their original , or arising from any other place where the admiral hath jurisdiction , seu maris per transitum , sive voiagium aut negotia maritima quoquo modo respicientibus , vel qualitercunque tangentibus , aut concernentibus versus milonem middleton , radulphum hall , & henricum dyconson civitatis nostrae , eboric . mercatores , per quoscunque vel qualitercunque coram vobis seu vestrum aliquo motis , aut quovismodo movendis , sive attemptandis , omnino & indilate supers ' , partes si litigare voluerint ad curiam nostram admirallitatis nostrae angliae pro justitia eis ibidem juxta leges nostras maritimas ministranda remittentes . t. meipso apud westm . tertio die februarii anno nostri tricesimo primo . afterwards in the same year , in the same kings reign , the said bishop , and the rest of the said kings commissioners being thus forbidden to meddle with matters of this nature , one john bates a merchant was sued before the major and sheriffs of the city of york for selling and delivering xlii . fowder of lead at the city of bourdeanx , in the parts beyond the seas , and complaint being by him made in the chancery , a supersedeas was awarded in the kings name unto the major and sheriffs of his city of york , charging them likewise that they should altogether , and without delay forbear all manner of cognizance in civil and maritime causes , contracted in the parts beyond the seas , upon the high sea , or in any place where his admiral of england had jurisdiction , or from thence proceeding against the said john bates , by what names soever called , by whomsoever , or in what manner soever begun , or to begun for the selling and delivering of the said xlii fowders of lead as aforesaid , in like manner as before , remitting the parties ( if they would sue ) to the court of the admiralty of england for justice to be to them there administred in that behalf . the words of the supersedeas are these . rex &c. majori & vicecomitibus civitatis nostrae ebor. salutem , vobis & cuilibet vestrum praecipimus , quatenus ab omni cognitione in causis civilibus & maritimis in partibus ultramarimis vel super alto mari , aut alibi , ubi magnus admirallus noster angliae habet jurisdictionem , contractus & originem contrahentibus versus johannem bates mercatorem , cujuscunque nomine censeatur pro xlii le fowders plumbi in partibus ultra marinis apud civitatem burdugaliaevenditioni expositis & deliberatis per quoscunque vel qualitercunque motis seu movendis omnino & indilate supersedeatis , partes si litigare voluerint ad curiam admiralitatis nostrae angliae pro justitiâ iis ibidem in hac parte ministranda remittentes . teste meipso apud westm . decimo quarto die aprilis , anno regni nostri trice simo primo . now i shall here by the way observe unto you this thing in particular out of this last suprrsedeas , and out of these words , apud civitatem burdugaliae , venditioni expositis , that though by the course of the common law , if a man do deliver certain goods unto another man , and doth intrust him with the keeping of them , for his the owners use , or to be by him disposed of in one manner , and he either selleth them , or disposeth of them in another ( i do conceive ) he that so intrusted the other , may recover of him such damage as he hath sustained by such the others sale , or disposal . yet if a merchant doth intrust a master of a ship with his wares or merchandizes to be transported to any port or place beyond the seas , for his own use , or for the use of any other particular man , to whom the same are by him consigned , or doth intrust him to dispose of them in any particular manner whatsoever ; yet he may in many cases upon certain exigencies happening sometimes sell the same , sometimes he may dispose of them otherwise then he was appointed by the merchant or owner of them , and no damage shall be by the course of the civil and maritime laws recovered of him ; and herein those laws have very many nice and curious distinctions : and for this cause , when the merchant very well knoweth that in such causes he cannot in the admiralty court recover any damages at all , he presently flyeth to the common law , where he knoweth he shall recover damage against the master , who was in no fault at all ; in such manner as mutinous and disobedient mariners ( who have either through their misdemeanors by the civil and maritime laws , forfeited their wages , or some part thereof , or having received due correction from the master at sea ) do fly to the common law , either for recovery of their wages upon their contract , which they have no wayes deserved , or do there bring their actions of battery against the master , when as he hath only given them such due correction , as the civil and maritime laws do allow , that being a thing done at sea , where complaint cannot be presently made , or remedy had before a magistrate , ( as may be at land ) and therefore the like at land not to be allowed , in both which cases they oftentimes recover , and are gone on another voyage before the master can make proof of their misdemeanour done either beyond or upon the seas , which cannot oftentimes be possibly done , but by commission out of the admiralty court , which turneth exceeding much to the disheartning and discouraging of masters and commanders of ships , which if not remedied , will be the utter destruction of navigation . and another thing i shall observe in general from both the two preceding supersedeas's , that all contracts of and concerning maritime affairs made between merchant and merchant , masters and owners of ships and mariners , or between them or any other person whatsoever , and in what manner soever , to be agitated or performed by sea , upon the seas , beyond the seas , or elsewhere within the jurisdiction of the admiralty , or taking their rise or original from thence , or do in any manner of wise touch , or concern the same , were not permitted in those times to be examined or adjudged in any court but the admiralty . and these supersedeas's in my judgment are a full confirmation of the exposition i have before rendered of the two before going statutes , viz. that contracts of this nature , though made at land , which do maris per transitum , sive viagium , aut negotia maritima quoquo modo respicere vel qualitercunque tangere & concernere , and so do arise from things done , or to be done at sea , and not from things done , or to be done within the body of a county , do de jure belong unto the cognizance of the admiralty , and are in no wise by the said two statutes taken from the same , and if by them not taken from thence , then doth not the penalty of the other praementioned statute of henry the fourth , run upon those that do sue in the admiralty court in causes of this nature , but only upon such as shall there sue upon contracts made at land , of or concerning things done or to be done , or performed at land ; and hereof you shall have further confirmation by consulations granted at the common law upon prohibitions from thence upon false suggestions issued . chap. ix . that by consultations granted from the courts of common-law at westminster after prohibitions formerly from thence obtained , contracts made at land of and concerning maritime businesses to be agitated and transacted at sea , beyond the seas , or upon the ports and havens , or of or concerning the same , are acknowledged to be cognizable in the admiralty , and have been thereunto by the same remitted . i shall here proceed to shew that the maritime contracts , whereof i have hitherto treated in this third book of this treatise , and particularly exprest in the title of this chapter , have been by consultations out of the courts of common-law at westminster , after prohibitions from thence obtained , determined and adjudged to belong unto the admiralty . one robert baker of the city of london vintner , sued one john maynard in the admiralty court , upon a contract made at land of and concerning a thing done upon the sea ( as by the consultation it self doth appear . ) but one john gilbert esquire being bail for the said maynard , endeavouring to decline the cognizance of that court , and hinder the just and due proceedings thereof , suggested before the kings justices at westminster , that he and one william cowick his proctor , were by the officers of that court cited to appear in the said court in the said cause , pretending the same to be a cause cognoscible before the said justices , and not in the admiralty court , and obtained a prohibition ; after which the libel in the said cause being exhibited before the said justices ( as likewise appeareth by the said consultation ) and it being thereby plain that the same was for a contract made concerning sea business , it is said that the prohibition issued out unadvisedly , praedictum breve nostrum de prohibitione à dicta curiâ nostrâ coram justiciariis apud westm . improvidè emanavit , and concludeth with a nolumus quod per hujusmodi malitiam & suggest . cognitio in praefata curia nostra admirallitatis taliter derogetur . that the cognizance of that court shall not be hindred by such malice or suggestion ; and so the cause is thither remitted , by consultation bearing date the th of july in the th year of the said henry the eighth . t. r. norwich apud westm . which consultation was directed to henry duke of richmond and sommerset , and earl of nottingham , high admiral of england , ireland , gascoine , normain , and aquitaine , and to arthur plantaginet knight , viscount lisle , the said dukes vice-admiral , or his lieutenant , and also to john tregonwell , dr. of laws , official commissary , or judge of the high court of the admiralty , and to thomas bagard doctor of laws , his surrogate in the said court. see the consultation it self as it follows . henricus octavus dei gratiâ angliae & franciae rex , fidei defensor , & dominus hiberniae , dilecto & fideli nostro henrico duci richmond . & somerset . & comiti nottingham . magno admirallo angliae , walliae , hiberniae , gasconiae , normaniae & aquitaniae ; nec non arthuro plantaginet militi vicecom . lisle praedicti ducis vice-admirallo , sive ejus locum tenenti , ac etiam magistro johanni tregon-well legum dostori in curiâ principali admiralitatis angliae officiali , sive commissario , & magistro thomae bagard legum doctori , dicti venerabilis viri johannis in dicta curia admiralitatis surrogato , sufficienter & legitimè deputato , eorumque cuilibet , salutem ; ex parte vestra nobis est intimatum , quod cum quidam robertus baker nuper de london vintner , in dicta curia nostra admirallitatis coram vobis implîtaverit quendam johannem maynard , de & super quodam contractu de re facta super mare , quidam tamen johannes gilbert armiger in hac parte cognitionem vestram fraudulenter & malitiosè satagens declinare , & debitum legis processum in eadem curia nostra in parte illa impedire , ac suggerens in curia nostra coram justiciariis nostris apud westm . ipsum johannem gilbert , ac quendam willielmum cowicke procuratorem suum per vos in praedicto curia admirallitatis coram vobis super praedicto placito praetenseundem johannem gilbert per inordinatam fatigationem in eadem curia admirallitatis coram vobis in dies trahi in placitum & per ministros vestros ea occasione citari , & coram vobis comparere adinde respondere faciendum totis viribus , & sententiam versus ipsos johannem gilbert . & willielmum cowicke , & pro praemissis fulminare proponend . placitum quod inde per legem terrae in praedicta curia nostra coram justiticiariis nostris apud westm . & non coram vobis in dicta curia nostra admirallitatis pertinet ad eandem curiam admirallitatis trahere machinando in ipsius johannis gilbert grave dampnum , ac nostri contempt . coronaeque nostrae regiae exhaeredationis periculum ac contra legem & cons . regni nostri angliae , breve nostrum de prohibitione minus rite vobis dirigi procuravit , cujus brevis praetextu vos in placito praedicto huc usque supersedistis in gravem libertatis praedictae curiae nostrae admirallitatis laesionem , & quia praedictum breve nostrum de prohibitione à dicta curia nostra coram justiciariis nostris apud westm . nuper inde improvide emanavit , prout per quendam libellum in dicta curia nostra coram justiciariis nostris apud westm . post emanationem dicti brevis nostri de prohibitione ex parte vestra missum plenius apparet ; ac quia nolumus quod per hujusmodi malitiam & suggestionem , cognitio in praefata curia nostra admirallitatis taliter derogetur , ideo vobis significamus quod in eadem caeusa procedere poteritis prohibitione praefata in aliquo non obstant . t. r. norwich apud westm . xi . die julii , anno regni nostri vicesimo quarto . one richard bell likewise sued one john crayne in the admiralty court , for that the said john did at dartmouth within the maritime jurisdiction of the admiralty promise and bind himself to exonerate and keep indemnifyed the said richard for taking or restoring of a certain ship called the mary fortune , and the apparel of the same , and the goods and merchandizes in her at the time of the taking of her ; and that he the said richard at the time of the taking of the said ship , together with john bell and others was present against one john destyron and other spaniards , affirming themselves to be the masters and owners thereof . and the said john crane not setting forth what this contract made at dartmouth was for , but barely suggesting that he was sued upon a contract made at dartmouth within the body of the county of devon , and not within the jurisdiction of the admiralty , obtained a prohibition . but upon complaint of the said bell , setting forth from whence the contract arose , and for what the same was , it was held to be within the maritime jurisdiction of the admiralty , and a consultation was awarded , by which it is said to be in ipsius richardi bell grave damnum , & legis libertatisque admiralli laesionem manifestam , to the grievous damage of the said richard , and manifest wrong of the law and liberty of the admiral ; and further saith , et quia cognitionem jurisdictionemque admirallitatis in causis maritimis per hujusmodi callidas assertiones impedire noluimus , vobis jam significamus &c. and because we will not have the cognizance and jurisdiction of the admiralty in maritime caues to be hindered by such crafty assertions ; we therefore , &c. as in the former consulattion . i shall likewise set down this consultation , which was in the time of henry the eighth , and so come to shew you some of those which were in the time of queen elizabeth . henricus octavus dei gratiâ angliae , franciae , & hiberniae rex , fidei defensor , & in terra ecclesiae anglicanae & hiberniae supremum caput ; nobili & prae potenti viro domino johanni vicecomiti lysle baroni de malpas & somerey , praeclari ordinis garteri militi , domino basset & tyasse magno admirallo angliae , hiberniae , walliae , villae & merchiarum calisiae , normanniae , gasconiae & aquitaniae , sen ejus deputato in curia nostra admirallitatis , salutem ; monstravit nobis in curia nostra coram nobis richar. bell com. sussex . quod cum idem richardus nuper in curia admirallitatis coram vobis implîtasset johannem crane , de eo quod idem johannes ad certum tempus jam retroactum infra jurisdictionem maritimam promisisset , & se extrinxisset ad exonerand . & indemnem conservand . ipsum richardum , ab omni obligatione , & juris vinculo pro captione seu restitutione cujusdam navis vocat . the mary fortune , & apparatus ejusdem , ac bonorum & mercimoniorum in illa , tempore capturae ejusdem , & pro eo quod idem richardus tempore capturae hujusmodi navis una cum quodam johanne bell , & aliis interfuisset erga quosdam johannem desticon & alios hispanos asserent . se dominos & proprietarios praemissorum fuisse ; idemque johannes crane nobis suggerendo dixerit quod hujusmodi contractus factus fuit apud dartmouth infra corpus comitatus nostri devon. inter partes praedictas , & non infra jurisdictonem maritimam , vobisque superinde ad suggestionem ipsius johannis crane quoddam breve nostrum de prohibitione in causa praedicta quod non procederetis , porrexerimus , cujus praetextu vos in causa illa huc usque procedere distulistis & adhuc differtis , in ipsius richardi bell grave damnum , & legis libertatisque admiralli nostri laesionem manifest . et quia cognitionem jurisdictionemque admirallitatis in causis maritimis per hujusmodi callidas assertiones impediri nolumus , vobis jam significamus quod in causa praedicta jam coram vobis inter partes illas pendenti , dummodo de causa maritima , & infra jurisdictionem admiralli nostri juxta jura legis nostrae angliae terminan . agat . licite procedatis , ac procedere poteritis in causa illa quantum ad jurisdictionem admirallitatis nostrae pertinet , brevi nostro de prohibitione vobis prius inde in contrarium directo in aliquo non obstant . t. r. lyster apud westm . decimo quarto die julii , anno nostri regni tricesimo octavo . per dominum capitalem justic rooper . in the time of queen elizabeth christopher turner sued thomas simpson of beverly in the county of york before matthew bodsworth , batchelor of laws , & commissary of the court of the admiralty in the northern parts of england , and judge of the vice-admiralty of york , upon a contract before that time made between them the said christopher and thomas ; and thereupon layd and articled in the said court , that in the moneths of april and may . they the said christopher and thomas had speech or talk between them , concerning certain quarters of wheat and rye , to the number of or thereabouts , namely forty and one quarters of wheat , and twenty and eight quarters of rye , whereof part was to be taken into a certain ship called the george of beverley at a certain place called emot-land upon the river of hull , alias hull water , and the other part thereof to be taken into the said ship at a certain place called the good alehouse , adjoyning to the said river , to be from thence carryed and conveyed in the said ship by water , unto the city of york , and there to be delivered on shipboard at a certain place called the queen 's stathe at the said city , and further had talk of the freight or price to be paid for the carriage of the said quarters of grain , and that they the said christopher and thomas bargained and agreed concerning the said carriage and transportation of the said grain in the said ship the george , in forme following , viz. that the said thomas sympson should take and receive into the said ship the said forty one quarters of wheat , and twenty one quarters of rye at the said place called emots-lands , and the said other place called the good alehouse , and should from thence transport and carry the same with all convenient speed to the queens stath aforesaid , being beneath the first bridge of the river of owre towards the sea , and there deliver the same on shipboard , and that in consideration thereof ; the said christopher turner did agree to and with the said thomas sympson for the transportation of every quarter of the said grain , to pay the summe of ten pence of lawfull money of england ; and further , that the said christopher turner in consideration that the said grain might be more safely and securely transported and carried , then other his grain before that time had been , and that the same might not be heated , wetted , or otherwise impaired , as before that time , other his the said christophers grain had been in other lesser vessels of his , the said thomas sympson promised and agreed to and with the said christopher , that if the said christopher should not deliver into the said ship called the george sixty quarters of grain , nevertheless in regard that ship was of a greater burthen then other ships of the said thomas sympsons were ; he the said christopher would pay to the said thomas sympson or his assignes the whole freight for sixty quarters of grain according to the rate of ten pence for every quarter of the aforesaid grain ; and if there should be more then sixty quarters of the said grain , that then the said christopher turner should pay for every quarter above the number of sixty quarters , according to the said rate of ten pence for every quarter thereof . and that the said thomas in consideration thereof promised and convenanted to and with the said christopher turner , that no grain or goods of other men should be received into the said ship in the said voyage ; and that the said ship should be sufficiently manned and victualled , so that by reason thereof the said christopher turners grain might be safely transported and carried without any heating , wetting , or other impairing , &c. which cause was afterwards removed from the said court of the admiralty in the northern parts , by way of appeal made by the said thomas sympson on his part unto the supreme court of the admiralty of england , and there in the end of the year of the said queens reign depended undecided . and the said thomas sympson in hillary terme following suggested in the kings bench that the said christopher had libelled in the high court of the admiralty , that the said contract was made at beverley , within the body of the county of york , and that the said contract was , that one part of the said grain was to be received into the said ship at a certain place called emot-land upon the river of hull-water , whereas indeed the said christopher had libelled in the court of admiralty before the said matthew dodsworth in the northern parts , that that contract was , that the said grain should be received into the said ship at the said places called emot-land , and good alehouse upon the river of hull-water , and not upon the river of hull-water : and whereas that plea upon the said libel only depended in the high court of the admiralty , by way of the appeal aforesaid by him the said thomas sympson , in form aforesaid prosecuted , and otherwise he prayed a prohibition from the said court of kings-bench , and procured the same to be directed unto to the said high court of the admiralty , whereupon the said court desisted . but in trinity terme following , the said court of kings bench being informed of the whole matter , deduced and set forth in the original libel , a consultation was awarded , which in its own phrase ( and in all things agreeable to what i have here set forth ) repeateth the tenor , effect and substance of the said libel , with a prout per libellum ipsius christopheri plenius liquet , as by the libel of the said christopher in that behalf doth more plainly appear , and concludeth , that notwithstanding the prohibition for the causes before exprest , and for other the said defects in the said thomas sympsons suggestion contained , and in the said court depending , them moving with an ac similiter nolentes per hujusmodi falsas & callidas assertiones placita in curia admirallitatis praedicta pendent . diutius impedire ; where nolentes signifieth an absolute forbidding or checking rather then unwilling that the said pleas in the court of admiralty depending should any longer be hindred by such false and crafty assertions , and therefore signified that the said court of the admiralty might lawfully proceed in the said cause between the said parties , and do and performe all other things on that behalf , which the said court did know did belong thereunto , &c. take here this consultation more in its own language at large , and i shall set forth but some few more , and those as briefly as i can . this runneth in these words . elizabetha dei gratiâ angliae , franciae , & hiberniae regina , fidei defensor , &c. venerabili & egregio viro magistro julio caesari legum doctori , praenobilis & praepotentis viri car. domini howard , baronis de effingham , praeclari ordinis garteri militis , magni admiralli angliae , hiberniae , walliae , & dominiorum & insularum earundem , villae calis & merchiarum ejusdem normaniae , gasconiae & aquitaniae , classisque & marinorum dictorum regnorum angliae & hiberniae praefecti generalis , locum tenenti generali , ac supremae curiae angliae admirallitatis judici & praefidenti , ejusve surrogato cuicunque salutem . cum christopherus turner nuper in curia admirallitatis , coram matthaeo dodsworth , in legibus baccalaureo , commissario curiae admirallitatis in partibus borealibus angliae , ac judice vice-admirallitatis com. eboracen . implitasset , & articulat . fuit versus quendam thomam sympson nuper de beverley in com. eborum . super quodam contractu inter ipsos christopherum & thomam ante tum fact . & super inde in eadem curia posuit & articulat . quod in mensibus aprilis & maii , anno domini millesimo quingentesimo , octog●simo sexto , iidem christopherus & thomas habuerunt colloquium inter eos de quibusdam quarteriis tritici , & siliginis ad numerum sexaginta & novem vel eo circiter , videlicet quadraginta unius quarteriorum tritici , & vigint ' . octo quarteriorum siliginis , unde pars accipiendum fuisset in quandam navem vocatam the george of beverley ad quendam locum vocatum emotland super rivulum de hull , àlias dictum hull water , & alia pars inde accipiend . fuisset in eandem navem , ad quendam locum vocatum the good alehouse adjungentem eidem rivulo , & ab inde abcariari & conveiari in eadem navi per aquam usque civitatem eborum , & ibidem deliberari super le shipboard apud quendam locum vocat . the queens stath infra eandem civitatem & ulterius habuissent colloquium de salario & pretio solvend . pro carriagio dictorum quarteriorum granorum praedictorum , & ulterius quod ipsi iidem christopherus & thomas convenissent & agreassent concernen . praedictum carriagium & transportationem granorum praedictorum in eadem nave vocat . the george infra sequen . videlicet quod praedictus thomas sympson caperet & reciperet in praedictam navem , praedicta quadraginta unum quarteria tritici , & viginti octo quartera siliginis , ad praedictum locum vocat . emot-lands , & ad praedictum alium locum vocatum the good ale-house , & ab inde transportaret & carriaret eadem cum convenien . celeritate ad le queens stathe praedict . stantem & existentem infra primum pontem rivuli de owre versus mare , & ibidem eadem deliberaret super le shipboard , & quod in consideratione inde praedictus christopherus turner convenisset & consensisset ad , & cum praefato thoma sympson pro transportatione cujuslibet quarterii granorum praedictorum , solvere summam decem denariorum legalis monetae angliae , & ulterius quod idem christopherus turner in consideratione quod grana illa magis salvo & secur . transportari , & carriari potuissent quàm alia grana sua antebàc fuissent , & quod eadem non essent calefacta , vel malefacta , vel aliter pejorat . anglicè impaired , prout ante tempus illud alia grana ipsius christopheri fuissent in aliis minoribus vasibus ipsiûs thomae sympson , promisisset , & convenisset ad & cum eodem thoma quod si dictus christopherus non deliberaret in praedictam navem vocat . the george , sexaginta quarteria granorum , nichilominus pro eo quod eadem navis fuit navis majoris oneris quàm aliae naves . dicti thomae sympson fuissent , ipse idem christopherus solveret praefato thomae sympson , vel assignatis suis plenum stipendium , anglicè the whole freight , pro sexaginta quarteriis granorum juxta ratam decem denariorum pro quolibet qurterio granorum praedictorum , & si plura forent quàm sexaginta quarteria granorum praedictorum , quod tunc idem christopherus turner solveret pro quolibet quarterio ultera numerum sexaginta quarteriorum juxta dictam ratam decem denariorum pro quolibet quarterio inde , & quod idem thomas in considerane inde promississet , & convenisset ad & cum dicto christophero turner , quod grana sive bona nulla aliorum hominum acciperentur in eandem navem viagio praedicto , & quod praedicta navis sufficient viritat . & esculat . esset , anglicè manned and victualled ; ita quod ratione inde grana dicti christopheri turner salva transportari & carriari potuissent sine calefatione , malefactione . vel alias pejoratione , anglice impairing , &c. prout per libellum ipsius christopheri inde plenius liquet ; quod quidem placitum postea à praedicta curia admirallitatis in partibus borealibus per viam appellationis per praefatum thomam sympson in ea parte factae coram vobis remot . fuit , & ad huc in supremâ curiâ admirallitatis angliae coram vobis jam pendet indecis . cumque praefatus thomas sympson postea , sc . termino sancti hillarii ultimo praeterito venisset in curia nostra suggerens quod praedictus christopherus in curia admirallitatis coram vobis libellasset quod contractus ille fuit , quod una pars granorum praedictorum per contract . illum recipiend . fuisset in navem praedictam ad quendam locum vocat . emot-land super rivolum de humer , aliàs hull-water , ubi reverà idem christopherus libellavit in praedicta curia admirallitatis coram praefat . matthaeo dodsworth in partibus borealibus quod contractus ille fuit quod grana praedicta accipienda fuissent in eandem navem ad praedicta loca vocat . emot-land & good alehouse super praedictum rivolum de hull , aliàs hull-water , & non super rivolum de humber , aliàs hull-water , & ubi revera placitum illud super eodem libello coram vobis per viam appellationis praedictae , per praefat . thomam sympson in forma praedicta protegunt , tantummodo pendebat , & non aliter , quandam prohibitionem nostram in eadem curia nostra coram nobis impetravit & vobis dirigi procuravit , cujus quidem prohibitionis nostrae praetextu vos in causa praedicta distulistis & adhuc differtis prout decet . nos tamen ob causas praedictas superius expressas & alias defectiones in suggestione ipsius thomae sympson praedict . coram nobis penden . contend . nos movend . ac simiciter nolentes per hujusmodi falsas & callidas assertiones placita in curia admirallitatis praedicta coram vobis penden . diutius impediri , vobis significamus quod in causa praedicta inter partes praedictas licitè procedere poteritis , ac omnia alia facere & peragere in ea parte quae ad forum admirallitatis noveritis pertinere brevi nostro de prohibitione inde praedict . vobis prius in contrarium in ea parte direct . in aliquo non obstant . t. c. wray . upud . westm . primo die junii anno nostri regni tricesimo secundo . rooper & rooper . and in the same queens reign john buckhurst infra fluxum & refluxum maris , within the ebbing and flowing of the sea upon the river of thames , arrested the ship the spark , alias the michael and john of plymouth , as belonging unto george ascoth , and citeth him in specie , and all others in genere , and libelleth , that in the moneths of august , september , &c. . the said george ascoth was owner of the said ship , and had an intent to make a voyage unto the parts beyond the seas , and to the effect of expediting the voyage , bought of him the said buckhurst , or his servant , certain necessaries for his voyage , to the value of l and received them , and had them into the jurisdiction of the admiralty , &c. zacharias ashton put in bayl to answer the action , and had the ship released , and afterwards upon suggestion that upon the tenth of march , eliz. for the space of two months before george ascoth was in the parish of st. mary le bow , in the ward le cheap london , lawfully possessed of this ship , tackle , and furniture , and that upon the eleventh of march he sold her unto him for l. and that the ship belonged unto him : and thereupon obtained a prohibition . the prohibition alledgeth the statutes of the th of richard the second , the th of richard the second , and the . of henry the fourth , quodque post edictionem statutorum praedictorum , scilicet decimo martii , anno , &c. apud london , in parochia beatae mariae de arcubus in warda de cheap london , ac per spatium duorum mensium ad tunc praeantea praedictus georgius ascogh legitimè possessionatus fuisset de nave praedicta vocat . the spark , alias the michael and john , portus de plymouth , ac apparat . accession . & ornament . ad eandem navem tunc spectan . ad valentiam trecentarum librarum monetae angliae , ut de bonis & catallis suis propriis , & sic inde possessionatus existen . idem georgius postea , scilicet undecimo die martii , anno superdicto apud london praedict . in parochia & warda praedictis pro summa quadringent . librarum legalis monetae angliae , eidem georgio per praefatum zachariam , ad tunc solveret , &c. contraxisset & vendidisset praefato zachariae navem praedictam ac praedict . apparatus , &c. quodque praedictus johannes buckhurst inde non ignarus machinans cognitionem placitorum quae ad , &c. quandam prohibitionem in curia nostra coram nobis , ne &c. prosequit fuerit , &c. but no proof being made by the said ashton that he had so bought the said ship , or that she was his , and not the said ascogh's , and the said court of kings-bench being informed that the effect and substance of the said libel was as is before expressed ; and the cause being held and adjudged cognoscible in the admiralty court , a consultation was awarded , which saith that the prohibition was in johannis buckhurst , grave damnum & libertatis curiae admirallitatis laesionem manifestam ; to the grievous damage of the said buckhurst , and manifest wrong of the liberty of the admiralty court , and therefore concluded as the former did , with a nolentes cognitionem quae ad curiam admirallitatis pertinet in hac parte per hujusmodi falsas & callidas assertiones diutius impediri , &c. in the body of which consultation , the effect and substance of the libel is thus exprest . inprimis videlicet quod mensibus augusti , septembris , &c. anno domini millesimo quingentesimo nonagesimo septimo jam curren . eorumvè mensium quolibet pluribus , uno sive aliquo , praefatus georgius ascogh fuit , erat nec non tempore aresti ab hac curia interposit . ac in praesenti est dom. proprietarius & legitimus possessor navis vocat . the spark , alias the michael & john , portus plymothiae ejusque apparatus & ornamentorum , seu saltem mediatatis , seu alicujus partis dictae navis , proque tali , & ut talis fuit & erat cōmuniter dictus tentus habitus nominatus & reputatus . item quod annis & mensibus praedictis eorumve uno sive aliquo , praefatus georgius ascogh intentionem habuit profectionem faciendi in partes ultra marinas , & ad effectum expediendi viagium sive profectionem praedictam , & paulo ante decessum ejusdem pro necessariis quibusdam suis , & in itinere sive viaagio praedicto ab antedicto johanne buckhurst , aut ejus famulo ad usum ejusdem georgii nonnulla bona ad valentiam septuaginta duarum librarum legalis monetae angliae , &c. in the same manner john fox arrested the same ship upon the river of thames , as belonging unto the said george ascogh , and libelled against the said aschogh in the same manner , for certain necessaries sold unto him to the value of l. which he received , and had into his possession within the jurisdiction of the admiralty , and the said zachary ashton put in bayl to the said action in such manner as in the other cause , and afterwards upon the like suggestion made unto the said court of the kings-bench , as he had there made in the said former cause , he likewise obtained a prohibition in this cause as in the other ; but the said court being likewise by the libel in this cause informed of the nature of the cause , a consultation was awarded in this cause as in the other , and concludeth in like manner as the other did , that the said prohibition was in grave damnum johannis fox , & libertatis curiae admirallitatis laesionem manifestam , and with a nolentes , &c. as in the former , and both the suggestion , and substance and effect of the said libel are inserted in the body of the consultation upon the file in the registry of the admiralty with the others , as it and they came directed from the said court of kings bench thither under seal . elizab. william rolfe of woolwich in the county of kent did contract and agree with thomas freeman shipwright , upon a certain rate for day-wages for himself and his servants , and for certain other materials or necessaries for and towards the building of a certain ship or pinnace for him the said william rolfe , according to which agreement the said freeman , and one arthur argill and others , as his servants did afterwards in the moneth of april in that year at woolwich in the county of kent for divers dayes labor in performance of the said work in their art , about the structure or building of a small ship or pinnace for the said william , and built a great part of the same ; and the said ship or pinnace being built , she was named or called by the said william , the anne and francis , and the said william being in possession of her as his own proper vessel , and standing so possest , he afterwards , to wit upon the eighth day of march in the year of the said queen , at woolwich aforesaid in the county of kent , for a certain summe of money unto him then and there paid by one hugh lydyard , sold and delivered the said ship unto him the said hugh , by which means the said hugh upon the said eighth of march in the year aforesaid became possessed of the said ship or vessel , as his proper ship or vessel ; and the said thomas freeman caused the said ship or vessel being upon the river of thames , to be arrested , by which means the said hugh lydyard was constrained to appear in the admiralty court , and to answer unto the said tho. freeman after upon a contract of or concerning the retaining or hyring him the said thomas , being the shipwright , to make & build the said ship , and of and concerning several promises and undertakings of the said hugh and william made unto the said thomas in the moneths of march , april , &c. in the year , &c. concerning the payment of divers summes of money to be paid unto the said thomas for his wages and salary , for his work about the structure and building of the said ship or vessel , and for meat and drink of other workmen that wrought upon the said work , and for other necessaries for the fitting of the said ship , bought and bestowed thereon by the said thomas . the said hugh lydyard alleaging the statutes of the and of richard the second , and the d . of henry the fourth unto the court of common-pleas , and there suggesting the same fact , and further suggesting the same to be done , and the said contracts to be made within the body of the county of kent , and not within the jurisdiction of the admiralty ; & that therefore the action was brought contrary to the form of the said statutes , and procured a prohibition to the court of the admiralty ; but upon consideration of the whole matter , the said court upon the last day of january in the th year of the said queens reign awarded a consultation , and remitted the said cause to the admiralty court. and now in regard that the fact in this case was agreed on both sides , and therefore no repetition made of the libel in the body of the consultation , the right of jurisdiction and power of the cognizance of the cause being only in question , and in regard this prohibition and consultation issued out of the court of common-pleas , and the former mentioned out of the kings's-bench , take this consultation at large as it came to , and remaineth in the registry of the admiralty . elizabetha dei gratiâ angliae , franciae , & hiberniae , regina fidei defensor , &c. dilecto sibi julio caesari legum doctori à libellis supplicum nostrorum magistrorum uni curiae nostrae admiralitatis angliae judici sive praesiden . ac locum tenen . ejusdem legitime constitut . aut , &c. salutem . cum hugo lydyard gen. in curiâ nostrâ coram justiciariis nostris apud west . suggerit quod cum per quendam actum in parliamento domini richardi nuper regis angliae secundi post conquestum apud westm . anno regni sui tertio decimo tent . edita inter alia inactitata sub authoritate ejusdem parlimenti , quod admiralli et eorum deputati se ex tunc de aliqua refacta infra regnum angliae , nisi solumodo de rebus factis super altum mare , prout tempore domini edvardi regis avi praedicti quondam regis richardi secundi usum fuisset nullatenus intromittant , cumque etiam per quendum alium actum in parliamento praedicti quondam regis richardi secundi anno regni sui quinto decimo tent . edit . inter caetera declarat . ordinat . & stabilat . suisset authoritate ejusdem parliamenti , quod de omnibus contractis , placitis & querelis , ac de omnibus aliis rebus factis , sive emergentibus infra corpus comitatus , tàm per terram quàm per aquam , ac etiam de wrecco maris curia admirallitatis nullam habeat cognitionem , potestatem nec jurisdictionem , sed quod essent omnia hujusmodis contract . placita & querelae , ac omnia alia emergentia infra corpora comitat. tam per terram quàm per aquam , ut praedictum est , ac etiam wreccum maris triat . terminat . discuss . & remediat . per leges terrae , & non coram admirallo , nec per admirallum , nec ejus locum tenentem , quodque post edictionem statutorum praedictorum sc . primo die aprilis , anno regni nostri quadragesimo secundo , quidam willielmus rolfe apud woolwich in comitatu cantiae infra corpus ejusdem comitatus , & non super altum mare , nec infra jurisdictionem admirallitatis retinuisset quendam thomam freeman tunc naupegum existen . ad quandam naviculam vocat . a pinnace pro eodem willielmo construend . & fabricand . vel saltem in structurâ & fabricatione hujusmodi naviculae ad laborand . & operam navand . per se & servien . suos in arte suâ pro merced . per diem eidem thomae per praefatum willielmum solvend . virtute cujus retentionis idem thomas & quidam arthurus argill & alii ut servien . sui postea , scilicet sexto die ejusdem mensis aprilis apud woolwich praedictam , in praedicto comitatu cantiae infra corpus ejusdem comitatus , & non super altum mare , nec infra jurisdictionem ad●irallitatis , in & circa structuram & fabricationem unius naviculae praedicto willielmo per diversos dies laboraverer ' . & operam navar ' an arte suâ & magnam partem naviculae illius construxerunt , cujus praetextu navicula illa apud woolwich praedict . infra corpus comitatus praedicti constructa fuit , quae quidem navicula postea denominat . & appellat . fuit per praefatum willielmum , the anne and francis ; ac quod idem willielmus sic de navicula illa fuit possessionat . ut de navicula propria , & sic inde possessionat . existen . idem willielmus , postea , scilicet octavo die martii anno quadragesimo tertio supradicto , apud woolwich praedictam infra corpus com. cantiae , praedictae , & non super altum mare , nec infra jurisdictionem admirallitatis naviculam praedictam pro quadam pecuniae summa ei tunc ibidem per ipsum hugonem solut . vendidit , & deliberavit eidem hugoni , per quod idem hugo praedicto octavodie martii anno quadragesimo tertio superdicto apud woolwich praedictam , videlicet in rivo thamisiae infra corpus ejusdem com. can. possessionat . fuisset de eadem navicula appellat . the anne and francis , ut de navicula sua propria ; praedictus tamen thomas freeman statut . & leges praedict . minimè ponderans , nec non diversa statut . contra levationem , sustentionem & manutentionem querelarum & sectarum in pria . vel alibi nuper edit . & provis . minime verens , sed contra eadem machinans dictum hugonem indebite pergravare , opprimere & fatigare naviculam ipsius hugonis praedictam in rivo thamisiae praedicte , vidlicet apud woolwich infra corpus praedict . com. canc. caute & subdole sub nomine & specie naviculi praedicti willielmi rolfe per ministros praenobilis caroli comitis nottingham . baronis howard de effingham praeclari ordinis garterii militis dom . locum tenentem nostri comitat. nostrorum sussex & surrey constabular . nostri honor & castri nostrorum de windesor . dom. magni admiralli angliae , hiberniae , & walliae , ac dominiorum & insularum , eorumve villae calisiae , & merchiarum ejusdem norman . gascon . & aquitan . classique & marin . dictorum regnorum angliae & hiberniae praefecti general . distringi & attachiari fecit , ac capi & attachiari procuravit , ac eo praetextu praedictum hugonem coram vobis apud southwark in com. surrey comparere & interesse astrinxit ipsum hugonem ad respondend . coram vobis praefat . thomae freeman , de quibusdam contractibus suppositu . inter dictum thomam freeman , ex una parte , & eundem hugonem & praefatum willielmum rolfe separatim ex altera , fuisse fact , infra jurisdictionem admirallitatis de & concernen . retentione praedcti thomae tunc naupegi existen . ad construend . & fabricand . naviculam praedictam , ac de & concernen . separales promissiones & assumptiones praedictorum hugonis & willielmi eidem thomae fieri supponit , mensibus martii , aprilis , maii , junii , julii , augusti , & septembris , anno domini millesimo sexcentesimo , eorumve mensium quolibet uno sive aliquo de solutione diversarum denariorum summarum eidem thomae fiend . tam pro mercede & salario suis pro operâ suâ , in & circa structuram & fabricationem naviculae illius faciend . quam pro salario esculent . & poculent . aliorum opificum in eadem opera laborant . ac pro maeremo , cepo , & aliis necessariis pro navicula illa construend . per ipsum thomam empt . & impens . conabatur & machinabatur , idemque thomas freeman in eadem curia admirallitatis totis viribus contra ipsum hugonem in praemissis prosequebatur caute et subdole in eadem curia admirallitatis libellando versus ipsum hugonem , et praefatum willielmum rolfe ; inter alia quod ipse idem thomas freeman spem alias ad recuperand . quasdam denariorum summas quas idem thomas versus praefatum hugonem tunc in eadem curia admirallitatis ex separabilibus causis & contractibus praedictis exigebat nisi per arrestationem naviculae praedictae nullo modo habuit , ideo eandem naviculam infra jurisdictionem admirallitatis angliae authoritate curiae illius arrestari fecit , ac praedictus thomas freeman praetextu praemissorum ipsum hugonem per diffinitivam dictae curiae admirallitatis sententiam de & super praemissis condemnari fecit , ac eundem hugonem ad solvend . denar . per praefatum thomam in eadem curia admirallitatis petit . per executionem sententiae praedictae compellere , vel saltem eos de naviculâ ipsius hugonis praedicta levari totis suis viribus conabatur & indies machinabatur in nostri contemptum & ipsius hugonis dampnum , praejudicium , depauperationem & gravamen manifest . & contra formam & effectum statutorum praedictorum , cujus praetextu nos quandam prohibitionem ad petitionem praefat . hugonis con-cessimus , & illam vobis dirigi fecimus , cujus praetextu , vos in causa praedicta procedere distulistis , & adhuc differtis ; quibusdam tamen de causis justic . nostris apud westm . specialiter moven . vobis significamus quod vos in praemissis legitimè procedere poteritis brevi nostro de prohibitione vobis inde directo in aliquo non obstan . t. e. anderson apud westm . tricesimo primo die januarii , anno regni quadragesimo quinto . cuick scot. now it hereby appeareth , that though this contract was made at land , and the ship built at land , yet because both the contract and work did arise from the sea , sayling and transportation of men , wares , and merchandizes , being the principal or only end both of the contract and the work , and the ship being to be imployed at sea , both the contract and the work were adjudged to be within the jurisdiction and cognizance of the admiralty . yet must i not let one observation slip , which is here to be observed ; and that is , that this consultation and all others which repeat those prohibitions which have been founded upon the . before mentioned statutes , shew that all those prohibitions have in their latine rendred the statute of the th of richard the second , to prohibit the admiral for medling with any thing but a thing done super altum mare , upon the high sea ; whereas poulton's translation rendreth it only upon the sea ; and the original rendereth only sur le meer , which is upon the sea in general , as well one part as another , as well upon an arme of it , as upon any part else of the body ; besides what follows , viz. solonc ce que ad estre duement use en temps du noble roy edward ail nostre , as i have already observed , and shall therefore pass to the next . richard husbands of london , draper , sold unto adam bonner , master and owner of one sixteenth part of the ship the advantage of london , certain cloth for the use of that ship , to the value of twenty pounds ; the money not being paid , husbands arresteth this sixteenth part of the said ship , with tackle and furniture thereunto belonging , and citeth bonner specially , and all others in general to answer unto him in the admiralty court for the said debt . bonner dieth , rachel his wife taketh administration , and the suit proceeds against her . richard dove owner of the other parts or residue of the said ship became bayl for the said bonners sixteenth part . and afterwards upon suggestion in the kings bench , that the debt was for cloth and other things bought by the said bonner of the said husbands in cheapside london , and that the said ship being freighted and laden in the parish of st. mary bow in the ward of cheap london , with provision of the queens to go for ireland , was there arrested by the said husbands , and alleaging that the said action was brought in the admiralty court by the said husbands against the said bonner , contrary to the three before mentioned statutes , &c. and thereupon obtained a prohibition . but upon due information made unto the said court , setting forth the effect and contents of the libel , a consultation was npon the th of april , in the third year of king james awarded , and the cause returned unto the said court of the admiralty , there to be duly proceeded in ▪ the consultation plainly expressing that the matter contained in the suggestion was no wayes sufficient to maintain the prohibition . the consultation runneth thus . jacobus dei gratiâ angliae , &c venerabili & egregio viro julio caesari . monstravit nobis richardus husbands de london , draper , quod cum ipse idem richardus in curia nostra coram vobis per processum extra dictam curiam admirallitatis praedictae debito modo confect ' emanan . arrestari procurasset decimam sextam partem cujusdam navis vocat ' the advantage of london , ac apparatuum , &c. et ulterius citari procurasset quendum adamum bonner dom. &c. in specie , ac omnes alios quoscunque , jus , titulum & interesse haben . in genere , vel haberi praetenden . &c. praefato richardo husbands de & pro quol ' debito viginti librarum eidem richardo husbands &c. per quend ' contract ' &c. infra jurisdictionem admirallitatis angliae factum debite responsur ' postea pendente secla illa praedictus adamus bonner obiit intestat . & post mortem administratio , &c. quidam richardus dove suggerens in curia nostra coram vobis quòd cum in statuto in parliamento dom. richardi nuper regis angliae secundi , &c. setting forth the three before metioned statutes . quodque vicesimo die novembris , anno regni dominae elizabethae reginae angliae quadragesimo tertio , apud london , videlicet in parochia beatae mariae de arcubus in warda de cheap , praedictus adamus bonner indebitatus fuisset eidem richardo husbands pro panuclaneo & aliis rebus ad tunc & ibidem praefato adamo per praefatum richardum husbands vendita & deliberat . in summa vigint . librarum legalis monetae angliae ; quodque praefatus adamus bonner praedicto vicesimo die novembris , anno quadragesimo tertio superdicto apud london praedict . in parochia & warda praedicta fuisset dom. proprietarius & possessor legitimus praedictae decimae sextae partis navis vocat ' the advantage of london , ac apparatuum , &c. ac quod praedictus richardus dove ad tunc & ibidem similiter fuisset dom. proprietarius & legitimus possessor totius resid . praedictae navis , &c. quodque etiam praefatus richardus husbands postea , scilicet vicesimo die novembris , anno regni dictae dominae elizabethae nuper reginae angliae quadragesimo tertio superdict . apud london praedict . in parochia & warda praedicta praedictam decimam sextam partem navis praedictae ad tunc & ibidem onerat ' existent ' cum provisione dictae dominae elizabethae nuper reginae angliae ad navigandum pro regno hiberniae ac praedictorum apparatuum , &c. pro dicto debito praefati adami bonner arrestari procurasset , ac super inde praefatus richardus dove , &c. apud london praedict . in parochia & warda praedict . fore fidejussorem pro praedicta nave compulsus , & coactus fuisset aliter , &c. quandam prohibitionem nostram , &c. quia tamen videtur curiae nostrae coram nobis , quod suggestio praedicta praedicti richardi dove in curia nostra coram nobis in hac parte exhibit ' . materiaque in eadem contenta minus sufficien ' in lege existunt ad breve nostrum de prohibitione in hac parte manutenend ' et quia nolumus cognitionem , quae ad curiam admirallitatis praedict . spectat & pertinet , per hujusmodi insufficientes assertiones diutius impediri , vobis significamus quod in causa praedicta , &c. t. j. popham apud westm . vicesimo quinto die aprilis , anno regni nostri angliae , franciae , & hiberniae tertio , & scotiae tricesimo octavo . . l. rooper . i shall instance only in one or two more of latter time , and that very briefly . claos cornelius borss by charter-party let to freight the ship the young swan of horne in holland , whereof he was master and part-owner , unto george rook and robert grove for a voyage from london to several ports and places beyond the seas , and from thence to the port of london . borss after the return of the said ship , sueth rooks and grove in the admiralty coutt for his freight due by the said charter-party , and likewise for demorage . rooks and grove suggest in the kings-bench , that the charter-party was made in the parish of st. mary le bow in the ward le cheap , and alleadged the three before mentioned statutes , and that they had performed the covenants of the said charterparty , and that the action brought against them in the admiralty was contrary to the said statutes , and obtained a prohibition . but the said court being fully informed termino pascae nono caroli , a consultation was awarded with a nolentes , &c. as in the former . and further , quod in causa praedicta quatenus de non performatione conventionum praedictarum quoad naulum & morationem coram vobis duntaxat agatur , licitè procedere poteritis , & ulterius facere quod ad curiam admirallitatis praedictae noveritis pertinere , dicta prohibitione nostra non obstante . t. t. richardson apud westm . tertio die junii , anno regni nostri nono , henley & whigswick . in like manner david guy of disart in scotland let to freight by charter-party the ship the grace of god of disart , then lying at anchor in the river of thames , to john delabar and james hope , upon a voyage ; upon which guy sued the said del●bar and hope in the admiralty court for his freight thereby contracted for , and unpaid . hope and delabar setting forth in the kings bench , that the charter-party was made in st. michael cornhill , and alleadging the three before mentioned statutes , and that the said action was brought in the said admiralty court contrary to the said statutes , obtained a prohibition . but in easter term in the th year of king charles , a consultation was awarded as in the other . hence i do observe that all these judges which granted these before mentioned consultations , have heretofote afforded the before mentioned statutes the same interpretation that i have since gathered , and in this treatise set down , viz. that a contract , whether made at land or at sea , if the same doth arise from a business to be done or performed at land , the same is to be tried by the law of the land : but a contract , whether made at sea or at land , if the same doth arise from a business to be done or performed by or at sea , or beyond the sea , the same is cognoscible in the admiralty court. for upon the granting these consultations , the question was not whether either the contracts or the charter-parties were made at sea , or at land , or whether they were made in the parish of st. mary le bow , or st. michael cornhill , or not ; but whether the same were maritime contracts , or concerned marrtime business or not , and so within the jurisdiction of the admiralty , or not ; as in the first of these five last cited consultations concerning the building of a ship , the question was not , whether the contracts for the wages in building of her , or the materials bought and imployed upon her , the meat and drink bought and spent in the time of the building of her were made at land or not , or whether the ship her self was built at land or at sea ; for the case was plain in the one as well as in the other , that the ship was built at land as all ships are upon the stocks , is no doubt at all : and the ship being there built , it is as little doubt that the contracts were there made , nnless we will suppose that which is not to be supposed , viz. that the parties went to sea to bargain for the building of her at land , and to bargain for materials to build her with , and for meat and drink to be spent in the time of the works being in hand ; but the question was , whether these contracts concerned a business that was maritime or not , which did arise from somewhat to be done at or by sea , or not ; and it being plain , that had it not been for sea imployment , none of these contracts had been made . and therefore was it adjudged that these contracts did arise from businesses to be done at sea , and were therefore maritime , and belonged unto the maritime jurisdiction of the admiralty , as all other contracts for victualling , tackling and furnishing of ships , with either anchors , cables , or other ropes , or whatsoever other necessaries , ( although the same were contracted for and bought at land ) anciently were and did belong , and of right still are , and do belong . and as for the contracts and charter-parties made of letting ships to freight , it is sure enough that they are seldome or never made but at land ; yet are these contracts made of and concerning a ship which at the very time of the making thereof is , aut super mare fluctuans , aut ad anchoras in quovis portu natans infra fluxum & refluxm maris infra jurisdictionem admirallitatis , either sailing upon the seas , or lying at anchor in some port or haven , where the sea ebbeth and floweth within the jurisdiction of the admiralty . and these contracts do arise from businesses to be done at sea , and were therefore adjudged to belong unto the sea jurisdiction . but perhaps it may be still objected that the law doth allow a fiction of place for the doing of any thing , and it mattereth not whether the thing was there done or not ; and i do agree that the law doth allow such a fiction , so that the same be within the compass of a possibility . but to feign a thing impossible , as to fain that ships sail in cheapside , or elsewhere upon the dry land , the law abhorreth , as i have said before . and then is it more proper and more agreeable to law to feign the charter-party that was made at land to have been made at sea , which is possible , then it is to feign a ship to be at land , where the contract was made , or when she was laden or furnished with either victual , tackle , or any other manner of provision or furniture , which is impossible ? i shall instance only in one contract made beyond the seas concerning sea affairs , upon which a bill obligatory was taken for the payment of a certain summe of money , and the said bill obligatory was adjudged cognoscible in the admiralty court , and then proceed upon another argument ; and this appeareth by a consultation granted out of the court of common-pleas in the th year of king james ( sir edward coke himself being then lord chief justice of the court ) directed unto sir daniel dunn knight and doctor of laws . thomas alport libelled in the admiralty court against philip cooper , that in the moneths of january , &c. anno . and in the months of march , april , &c. the said philip cooper remaining in the parts beyond the seas , &c. did by his bill obligatory in the said parts beyond the seas , &c. lawfully make , and with his own proper hand subscribed , and sealed with his seal , tye and bind himself to the said thomas alport for the due payment of the summe of l. and six shillings of lawfull money of england , as in the said libel in the said consultation is summed up , viz. quod mens . jan. &c. anno dom. . nec non mensibus martii , aprilis , &c. . seu eorum aliquo , praedictus philippus cooper , dum partibus ultramarinis , &c. remanebat , se pro debitâ solutione summae ducentarum septuaginta quinque librarum & sex solidorum legalis monetae angliae praefato thomae alport per scriptum suum obligat . in partibus ultramarinis , &c. legitime factum , manuque suâ propriâ subscript . ejusque sigillo , &c. but the said philip cooper suggested in the court of common-pleas , as in the said consultation is set forth ; quod tertio die aprilis anno regni jacobi dei gratiâ angliae , &c. septimo infra corpus comitatus civitatis london , viz. in parochia beatae mariae de arcubus in warda de cheap , et non super altum mare , nec infra jurisdictionem curiae admirallitatis angliae per quandam billam suam obligatoriam sigillo suo sigillat . et ut factum suum cuidam thomae alport tunc et ibidem deliberat . gerens datum eodem die et anno obligasset se et haeredes , executores et administratores suos , ad solvendum praefato thomae , haeredibus , executoribus et administratoribus suis ad omnia tempora super demand . summam ducentarum septuagint ' . et quinque librarum et sex solidorum legalis monetae angliae ; cumque idem philippus liber homo , &c. and reciteth the said three before mentioned statutes . praedictus tamen thomas praemissorum non ignarus , sed machinans non solum ipsum philippum contra debitam legis hujus regni angliae formam , et contra formam et effectum statutorum , &c. traxit in placitum falsè , caute et subdolè libellando in curia admirallitatis , &c. cujus quidem suggestionis praetextu , &c. that upon the . of april jacobi within the body of the county of london , viz. in the parish of st. mary de bow , in the ward le cheap , and not upon the high sea , nor within the jurisdiction of the admiralty court of england , he by his certain bill obligatory , sealed with his seal as his deed , then and there delivered unto one thomas alport , bearing date the same day and year , did bind himself , his heirs , &c. to pay unto the said thomas , his heirs , &c. at any time upon demand , the summe of l. and s. of lawfull mony of england , and alleadgeth the three before mentioned statutes , and that notwithstanding the said thomas not being ignorant thereof , &c. had brought his suit in the admiralty court for the recovery of the said debt upon the said bill obligatory contrary , to the form of the law of england , and contrary to the form of the said statutes , and thereupon obtained a prohibition . but upon the th day of june , in the tenth year of king james , it being made appear by the libell and bill obligatory , that the same was made beyond the seas in respect of a maritime business had and done at sea , the said prohibition was released by consultation , which concludeth that the prohibition was to the grievous damage of the said thomas alport , and manifest wrong of the court of the admiralty , and saith the proceedings in that cause in the said admiralty court ought not to be delayed . et quia videtur praefatis judiciariis , & pro certis caeusis ipsos specialiter moventibus , quod processus in praedicta curia admirallitatis in praedicta causa ad prosecutionem praedicti thomae ulterius retardari non debet ; ideo vobis , &c. t. e. coke apud westm . xx . die junii , anno domini nostri angliae , franciae & hiberniae decimo , & scotiae quadragesimo quinto . crompton . but it may be said that many more prohibitions have been granted out of both the said courts at westminster , as well in causes of this nature , as in causes for things done upon ports and havens , upon which consultations have not been had , and i doubt not but in latter times there have ; but it hath for the most part been when the parties have agreed , and the cause compounded , and so no consultation prayed or sought for , if otherwise , let no man brag of that which hath been done , which ought not to be done . but another cause may be given , and that is this , that the civilian not being suffered there to plead the right of jurisdiction belonging to the admiralty , the same hath not been undertaken by any practicers in those courts , and if undertaken , yet pleaded but coldly against the jurisdiction of their own courts : howsoever i do conceive that the procedendoes out of the chancery , and the consultations out of the kings bench and common pleas , which i have in this and the second book of this treatise set forth ( though i might have instanced in very many more ) will be sufficient to determine the right of jurisdiction as well in causes of the one nature , as of the other against the said several courts from whence such supersedeases and prohibitions were granted . i will not say but that the admiralty court may sometime have intermedled with contracts made at land , arising from businesses done or to be done or performed at land , which is here in england , as it were to take cattle from a pasture and put into the sea to feed . and in such cases i doubt not but a prohibition may lye , which shall not be dissolved by consultation . but by prohibitions to take businesses of the ports and havens , or contracts made at land concerning maritime affairs from the admiralty , to be determined by the common-law of the land , is to take fish out of the sea to be kept alive and fed upon pasture , or in some forrest or park at land . for i shall in the next chapter out of many shew you some few of those exact rules the civil law hath to proceed by in causes of this nature , besides the laws i have before mentioned , which the common-law hath not . chap. x. that divers and severall of the laws under the titles selected out of the body of the civil law by peckius for determination of maritime causes ; and other laws selected out of several other titles , as subsidiary unto them , do set forth most exactly the determination of controversies , which may and do daily arise from contracts made at land concerning matters to be done at sea . now concerning this matter i may rather referre the reader unto peckius himself , vinius , and other authors writing thereon , then to spend any great labour about it : but whilest he hath this book in his hand , let him cast his eye upon some few of a great number of such contracts made at land , concerning businesses to be done at sea , which are exactly determined by these laws , and are used and held absolutely necessary in all forreign maritime judicatories , ( and not by any the rules of their municipal laws ) which as they are little or nothing different in their proceedings from the proceedings of the civil law , so are they farre less different in their determinations from the determinations of that law , then our municipal laws be . as in the first of these titles . if mariners before they receive goods on board , do contract with the loader , ut recepta restituant . quaeritur utrum nauta an exercitor navis pro restitutione conveniatur ? quaeritur etiam an exercitor , magister , aut nàuta ex contractu teneatur de rebus non ostensis ; ac utrum amicus ex contractu amicum in navem recipiens teneatur de perditione ? quaeritur etiam utrum nautae ex sola emissione teneantur ? ac etiam an nautae de facto vectorum teneantur ? quaeritur etiam quae & quando actio detur , subsidiaria , protestatio an requirat consensum adversarii ; ac an in scriptis fieri debet ? quaenamque sit vis protestationis ? cum quolibet nautarum sit contractum , an detur actio in exercitorem ? ac quid si nauta per magistrum navis conductus in nave deliquerit an in exercitorem detur actio ? magister navis per exercitorem conductus , an alium substituere potest ? mutuum dans in navis usum , an caeteris creditoribus praefertur ? & quando ? & quare ? an ? & quando navis per aversionem conducitur ? dominus an ? & quando ? & quare ? invitus & ignorans de peculio teneatur ? merces an pro naulo contracto cum magistro sint obligatae ? quaeritur etiam quando argumentum à contractibus ad delicta procedat ? quando non ? quae autem diversitatis sit ratio , quam optime declarat ulpianus . variae etiam quaestiones assurgunt ex variis navium conducendarum modis contractis ; ut de navibus locandis , varia sunt diversorum hominum studia , alius conducendis tantum vectoribus , alius ob naulum mercibus transferendis , alius ex longinquis regionibus aromatibus abducendis intentus est . ex quibus quidem variis locationum modis contractis variae sunt quaestiones . quidam iterum cum navibus suis navigare velint , quidam tamen cum rebus suis ipsi superesse non possint , magistrum navi praeficiunt ; & ex ea ratione iterum aliae omnes duplicantur & quaestiones & determinationes earund . vtrum conducta nave per aversionem , avertitur a conductore periculum , & quando in locatorem rejicitur cum aliis quaestionibus de conductione per aversionem . si plures per contractum suum navem exerceant , an cum quolibet eorum in solidum agi potest . si navis lacera sit & inde res deterioratae ; an , & quando , vector ex locato contra magistrum agit ? quaeritur etiam an , & quando , pro pecuniis mutuo pro reparatione navis sumendis aut aliter in ejus usum disponendis , in exercitorem detur actio & quaenam detur actio ? quamplurimae etiam sunt leges diversis in titulis per totum juris civilis corpus distentae & diffusae , quae ( ut flores ex horto amoeni & salutiferi ) hisce selectis ut eisdem subsidiariae per authores super ipsis conscribentes , & alios colliguntur , ad causarum hujus naturae martitimarum determinationes necessariae , e quibus quamplurimis , qui legit perpaucas hic tantum nominatas , alias excogitabit , ex quibus has varias nominatas habeat & tantum nominatas . quaeritur an nave empta , vel emptis navis tabulis , & navis pars , vel tabulae , vel tabularum pars evincitur , an evictionis nomine obligetur venditor ? quod ut speciale est , specialiter disputatur , solvitur & determinatur per l. nave aut . et l. si dictum . junctis ibidem glossis , f. de evictionibus . et per doctores separales super eisdem conscribentes . iterum quaeritur cum contrahitur ad merces transportandum & non ex jactu , sed aliter , quaedam de eisdem dejectae fuerint merces è navi , an praepositus navis teneatur ? quod per l. hoc edictum . § . si de navi . ff . de his qui dejecerunt vel effuderunt dirimitur . quaeritur etiam an contra nautas pro rebus positis & transferendis contract . aut deperditis aut damnificatis in navi , talem esse praesumptionem quae in eos probandi onus transfert , quod per angelum aretinum super § . si tamen alienum . instit . de rerum divis . deceptatur & concluditur . ac etiam an literae mercatorum in quibus asseritur ita esse cum navis magistro contractum , & tantum pro naulo , &c. se sibi sive navis proprietariis debere contra scribentem probent & obligationem inducant , quod accurate distinguendo deciditur per doctores super l. ff . de verborum obl . & l. lucius ff . de instit . act . & l. publia . § . fi . ff . depositi . sed ubi pro●ent , &c. quid si mercator ante solutionem perierit sive decesserit , an scribentis haeredibus istae nocebunt literae ? quod per hypolit . de marsel . in singulari suo . incipiente ut nostri , & in repetitione sua super rubrica cod. de probationibus col. . & guliel . durant . in suo juris speculo tit . de obligat . & solution . in § . notand . vers . pone quod mercator . et bald. in additionibus ibidem cum multis aliis dubitationibus , &c. multi mercatores frumenta sua in navem quandam posuerunt , & magister ad transferendum accepit , & communem fecit acervum , conveniendo ut ex illo acervo cuilibet redderetur tanta quantitas quantam ibi transferendam posuit . et cum portum destinatum appulisset , navis ex illis quibusdam reddidit portiones , antequam aliis redderet , periit cum frumento . quaeritur an nautae sit periculum ? an mercatoribus qui portiones suas non recipissent ? an mercatoribus omnibus conjunctim ? quae quidem quaestio exacte determinatur per l. in navem saufeii ff . locati & conducti , & gloss . ibidem & d. d. super ead . l. cum navis magistro contrahitur ad transferendum tanti ponderis merces , & saccus seu capsa inter alia in navi posita est sigillata , & redditur sine sigillo apertae , qui tradidit dicit tanta vel talia fuisse inclusa ; nauta contendit quod tanti ponderis non erat capsa . quaeritur quomodo procedendum est , ut ad directam deveniatur adjudicationem ? quod per julium ferrettum li. suo primo n. . dirimitur . vide etiam l. . naut . caup . stab . ff . & arg . legis de actione in litem jurando ff . de furtis . et legi in actionibus § . fin . ff . de pollicitationibus . quid si quis ignorante navis magistro capsam in navem posuerit clavatam , quae in eadem in venta fuerit aperta , & bona quaedam ex eadem auferuntur ? quaeritur an de damno ita ponenti teneatur magister ? quod per loffredum de benevento doctorem antiquum in l. . ff . depositi & per baldum in l. . § . item pomponius ff . naut . caup . eximitur . quaeritur etiam an excambii literae revocari possint ? quando possint ? quando non ? quod quidein per bald. in rubr . de constitut . pecunia , in ult . col . & l. quidem ff . eodem col . penult . & per romanum in singulari . & per l. publia in fi . ff . depositi , & per bart. ibidem , & alios scribentes de institoria , distinguendo dirimitur . ac cum mercator vel campsor litteras excambii pro scholari sive aliquo alio scripserit , & effectus facultatibus lapsus erit priusquam praesententur & solvantur dictae literae , utrum sholaris an campsoris periculo dictae erunt literae ? quod & distinguendo , & limitando per bald. in l. pro debito c. de bon . actor . judi . possiden . & per bart. in l. singularia col . . ff . probatur , & per hypol. de marsel . in repetitione sua rebric . de probat . in vers . . &c. et l. ubi quis ff . de constit . pecun . et per bald. in quaest . incipiente statuto cavetur quod faenerator , &c. et quid si ante diem solvendi facultatibus lapsus fuerit primus campsor qui literas scripsit , quo intellecto , ille , cui literae diriguntur , solutionem negat , an possit cogi ? quod discutitur percuriose tractatur , et deceptatur per sallic . in l. pro debito in fine c. de bonis author . judi . possiden . et per aug. instit . de except . & per alexan. de imol. in l. quae dolis ff . solu . matrim . quaeritur etiam utrum literae cambii paratam habeant executionem ? quod etiam determinatur per nota per jasonem in l. elegantur ff . de conditionibus indebiti . quod etiam per bald. consil . . lib. tertio , et text . in l. si ex cautiam . c. de non numerat . pecunia , & matthaeus de afflict . in constit . causas promagistro justiciario col. . multaeque aliae hac de re exsurgunt quaestiones quae per jus civile & authores super eodem conscribentes deceptantur & determinantur . si unus ex nautis mercator fuerit , vel ut mercator cum magistro navis contraxerit , & in mercibus suis in nave oneratis damnum passus est , utrum sibi tenebitur exercitor ? quod per dict . julium ferret . d. li. . n. . expeditur . mulier pregnans cum navis magistro pro transportatione solvere contraxit quod nautis debitum erit , juxta l. hujus ff . qui potiores in pignore habeantur . et postmodum mulier peperit in navi . quaeritur an teneatur pro partu solvere naulum ? quod per l. sed adde sect . si quis mulierem ff . locati , & per bartol . ibidem , & per l. haec mori ff . qui potiores in pignore habeantur directe concluditur . quaeritur qua actione versutus conveniatur nauta qui navi ad navigandum conducitur , & versute res resurripuit alienas , et hoc quando vel ex navi alterius vel ex propria sua navi surripuerit ? quae per exactissimam julii feretti de re navali distinctionem juxta l. sed & ipsi ff . naut caup , determinatur l. . n. . et utrum cum plures competant actiones & tentata sive electa una , ad aliam redire poterit actor ? et quid si ad diversa plures competant actiones ? quae per l. quod in haeredem ff . de tributoria actione , &c. dijudicantur . per l. . ff . naut . caup . stab . & gloss . ibidem de dolo lata levi & levissima culpa tenentur exercitores sive magister navis , & inde quaeritur utrum idem sunt , vel unus pro alio ponatur , quod cum deciditur per l. . ad l. rhod. de jactu & l. primam § . . naut . caup . ac etiam quid de illo statuendum qui stat in navi navigandi causa . et cum per praedict . l. . naut . caup . determinatur , quod in casu naufragii in casu pyratarum incursu , & in casu fortuito non tenetur exercitor . quaeritur utrum furtum & latrocinium sit inter casus fortuitos numerandum , & inter illos ponendum et computandum . et quinam alii numerent casus fortuiti ; quae dirimuntur per § . sed istae instit . de action . & sect . . instit . quibus recontrahitur obl . & l. . § . item si servus ff . naut . caup . & per angelum de aretio super d. loc. quaeritur ex d. illa l. . naut . caup . utrum ne cessante legitima causa quiquid contingit de exactissima culpa tenebitur exercitor , utpote si nauta exactissimam illam adhibuit diligentiam quam quilibet diligens adhibuisset exercitor , quod dirimitur per bartol . in d. l. . ff . naut . caup . &c. per legem primam & l. cum navarcarum c. de naviculariis li. . nauta cogatur navigare . quaeritur igitur an nauta teneatur ex jussu inimici navigare ? vel in sua navi recipere inimicum suum de jure ? quod ex gloss . super d. l. . ff . nautae caup . dirimitur . now have i not here rendred or set forth the determinations of these few questions which i have here nominated , they being not considerable without the rest , which taken altogether with their divisions , distinctions , decisions and determinations , would make by themselves a whole tract de jure admirallitatis , which would be a book to little or no purpose , nor receive any welcome , unless this which is de ejus jurisdictione , may first receive some entertainment , which how necessary and advantagious the same may redound unto this kingdome , i shall leave to the consideration of him that hath or shall throughly read this maritime dicaeologie . this small treatise which i have written in vindication of the jurisdiction of the lord high admiral of england , &c. i doubt not but will receive this addition of advantage , as to tend likewise to the vindication and clearing of the honour and reputation of those reverend and learned judges of the land ( the two lords chief justices , the lord chief baron , and the rest of the then judges their associates , together with the attorney general ) whose judgements and justice have been blemished , and unworthily aspersed by some of their own profession , in saying those reverend judges were questioned in parliament for setting their hands unto an agreement made ( before his majesty of blessed memory charles the first ) between them his judges of the land , and sir henry martin judge then of his high court of admiralty , purporting in substance the matter of this treatise . it 's true , i have heard that some of the puisne lawyers , and young men of that profession ( sitting in the long parliament ) would have attempted such an undiscreet , and unparelleld act ; but by the gravity and wisdome of others more learned in that profession then themselves , were disswaded from it . yet if they had , i doubt not but he that reads this treatise , will find sufficient reasons to justify their assent to that agreement , and that it contained nothing but what they might and ought to do , notwithstanding the judgements of their predecessours or successours . others do not forbear or stick to say this subscription to this agreement was an extrajudiciall act , and so takes not the effect of a law either to bind them or their successours , as though the place and formality of sitting upon the bench were of the essence of a true and just opinion ; and the judges being called and convened by special summons before his majesty , that their judgements and opinions there delivered in matters propounded , debated , and argued , were of less force and validity , and more extraneous to reason , then if they were judicially sitting . which is an opinion that i cannot conceive any man of sound judgement can adhere unto ; and therefore i shall conclude this treatise with that judgement given by those twelve learned and reverend judges of the land , with the consent of that famous man mr. noy , his majesties attorney general . at whitehall february , . present . the king' 's most excellent majesty . the lord keeper and lords of the councel . this day , his majesty being present in councel , the articles and propositions for accomodating the differences concerning prohibitions agreed unto and subsigned by all the judges , and his majesties attorney-general , were read , and ordered to be entred in the register of councel causes , and the original to remain in the conncel chest . if suit shall be commenced in the court of admiralty upon contracts made , or other things personally done beyond or upon the seas , no prohibition is to be awarded . if suit be before the admiral for freight or mariners wages , or for the breach of charter-parties for voyages to be made beyond the seas , though the charter-parties happen to be made within the realm ; and though the money be payable within the realm , so as the penalty be not demanded , a prohibition is not to be granted ; but if suits be for the penalty , or if the question be made whether the charter-party were made or not . or whether the plaintiff did , release , or otherwise discharge the same within the realm , that is to be tryed in the kings court at westminster , and not in the kings court of admiralty , so that first it be denyed upon oath , that charter-party was made , or a denyall upon oath tendred . if suit shall be in the court of admiralty for building , amending , saving , or necessary victualling of a sbip , against the ship it self , and not against any party by name , but such as for his interest makes himself a party , no prohibition shall be granted , though this be done within the realm . likewise the admiral may inquire of and redress all anoyances and obstructions in all navigable rivers beneath the first bridges that are impediments to navigation , or passage to or from the sea , and also try personal contracts and injuries there which concern navigation upon the sea , and no prohibition is to be granted in such causes . if any be imprisoned and upon habeas corpus , if any of these be the cause of imprisonment , and that be so certified , the party shall be remanded . signed , thomas richardson , robert heath , humphrey davenport , john denham , richard hutton . william jones . george croke . thomas trevor . george vernon . james weston . robert barkley . francis crawley . henry martin . william noy . ex t. t. meutys . finis . notes, typically marginal, from the original text notes for div a -e spelm. gloss . v●●bo admiral . p. . rot. ann . ●d . . . part . pat . m. . r●● . ann . ed. . pa●te paten . rot. ann . eodem & eadem parte paten . rot. ann . ed. . . part . paten . m. . rot. an . . ed. . . part . pat . . m. . . rot. ann . ed. . part . pat . m. . lambard archeion tit . admiral pag. . rot. an . ed. . rot. nn . ed. . rot. an . ● ed. . rot. an . ed. . rot. an . ed. . . part . paten . mem . . rot. an . ed. . . part . paten . ●●m . . rot. an . ed. . . part . pat . m. . rot. an . . ed. . . part . pat●n . m. . rot. ann . ed. . . part . paten . memb . . rot. ann . ed. . part . paten . memb . . rot. an . ed. . paten . m. . rot. an . ed. . . part . pat . mem . . rot. claus . ed. . pat. . ed . rot. an . ed. . part . pat . m . rot. an . ed. pat . mem . . rot. an . ed. . pat . mem . . rot an . ed. . . part . pat . m . rot. an . ed. . claus . endors . m. . rot. pat . ed. . pa●t . pat . lamb. archeion . tit . admiral . pag. . rot. ●●scoyn . an . ed. . m . rot. ann . h. . part . pat . m . rot. an . h. . pat . m. . rot. an h. . part . pat . m . rot. an . eod . h . claus . pat . m. . rot. an . h. . . part . paten . m. . rot. an . eod . & eod . loco . part . pat . & m. eod . anno . cic. de nat. deor . lib. . f. de verb. oblig . l. qui romae . § . de dominio maris , lib. . c. . ubi citat . rot . pat . . johan . reg. m. . & pat . . hen. . part . . m. . & . claus . . hen. . m. . pat . hen. . part . . m. . eodem cap. ubi citat . rot. parl. anno ed. . art . . eodem cap. ubi cit . rot. parl. ed. . part . . art . . & . a rot parl. ed. . art . . eod. cap. ubi cit . rot. cart. . jo. r. in dors . & rot. pat . jo. eod. ca. ubi cit . th. walsingh . an . ro . &c. rot. parl. h. . e rot. pat . hen. . part . f ibid ex rot . pat . . hen. . spelm. ead pag. scil . . cicer. ep. ad attic. lib. di●n . de 〈◊〉 orbis . plin. lib. . naturalis historiae . rhodiae leges distin●t . gell. lib. . cap. . strabo geograph . lib. . . cap. . f. ad leg . rhod. in princ . f. ad leg . rhod. l. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . constat ex legibus ipsis rhod●is & a●is ex corpore ju●u collecti● . a wellwood in p●ohem . b rot. de artic . super quibu● justi●iaris domini regis sunt consulendi an . . ed. . c lib. nigr● admir . pag . d lib. nig . adm. artic . . pag. . e obs . quod curia admiralitatis est curia cuius acta & inactita sunt de ●ecordo . f lib. nig . admir . pag. . g li. nigro admir . artic. . pa. . h lib. nig . adm. pag. . i seld. de dom . maris , l. . c. . , . k seld. de dom. mar . lib. . cap. . juxta medium . l id. eod . loco . postea . m idem eod. etiam loco . n vid. cap. ult . hujus libri . b lamb. arch. c lamb. arch. d glanvil . in tit . ej●sd . lib. e glanv . tit . f lamb. arch. pag. , . g lamb. arch. pag. . h peckius in tit . . l. . de naubrag i vig. aeneid . . k id. aen. . l lamb. archeion . m rot. an . ed. . valent articuli super quibus justic . &c. sunt consulendi . a petit. de legibus attic. b dem●stbents contra apat . zenosinem & phormionem . c sejus satumius ad se● . c. trekel . d frecc . de officio admiral . lib. ult . cap. de commerciis . e vide etiam lib. . de naufrag . f consol del . mar . cap. . g marisotus orbis maritim● . l. . cap. . pag. . h marisot . li . ca. p. . vide frecc . de subsend . tit . de offic . admir . & franc. de ponte , de potestate proregis . garsias mastrilli de magistrat . lib. . cap. . a de dominio maris lib. . c. b idem ibid. ubi citat chopp●● de dominio franc●ae , lib. . tit . . §. . & pas quier en les recerches , lib. . cap . & j. tilium de rebus ga●licis lib. . c idem . ibid. d edicts per fontenon . append . hen. . e grego● . tholos . syntag. li. tit . . classan . p. . consid . . d● . zon. ex merisot . lib. . cap. . a wellwood . prohem . b wellwood , cap. . pag. . c idem . ibid. d id. cap. eodem pag. . e id. ca. eod . p. ubi citat diplomata admiral . in utroque regno & librum de officio admir . angl. a sup. cap. b seld de dom . maris . li. . c. . c coke jurisdic . court. c. . notes for div a -e a cap. ult . prim . lib. b spelm. verbo admirallorum series . c spelm. verb. admir gallic . p. . & supra cap. . lib. . sub fine . infra li isto . cap. . & . a rot. an . . ed. . memb . . b sup. cap. . lib. prim . c rot. an . ed. . secu●da parte pat . m. d rot. eodem memb . eadem . e rot. eodem memb . eadem . f rot. vescoyn . an . . ed. . memb . . g ibidem . a coke jurisdict . of courts ; cap. . b idem . ibid. c rot. an . . h. . d an. ed. . prima parte pat . m. . e an. ed. . . parte pat . m. . f an. ed. . . part . paten . m . g supra lib. . cap. . h sup. lib. . cap. . mentionat . in ipsissimis verbis repetit . i sup. lib. . cap. . & lib. . cap. . a eliz. . c. . b callis in ●ect . apud hosp . gran super stat . h. ● . ca. . an . . a coke jurisd . of courts ca. . b stat. r. . cap. . r. . ca. . & h. . ca. . c an . h. . d infra lib. . cap. . d supra cap. . hujus . lib. super eod . cap. e infra lib. . cap. . f supra cap. . hujus secundi lib. & cap. . lib. primi . g rot. an . . e. . prima parte pat . m praecitat . in cap. . lib. primi . h infra lib. . cap. . * for the word only is not to be referred to any thing but to the first bridges , and not the precedent words and things . h lacyes ca●● i inf●a cap. , , , , . hujus lib. . & cap. . lib. . ac etiam cap. . & . ejusdem libri . * or rather addition'd to the manner of tryal ; for the other manner of tryal is not taken away by this . a l. . ad senat . c. maced . a the register ; but quoteth not what place . t. n. b. fol. . 〈…〉 f. b temp. e. . tit . avowry c sup. cap. . ●ujus lib. . d serj. callis in . lect. apud ●esp . grai . an. . e stam. pl. coron . li. . fol. . . f stam. pl. ●oron . li. . fol. . . g idem . ibid. h fitz herb. pl. . i britt . fol. . k stam. tit . draed . p. . l stat. . r . c. . m supra cap. eod . may . . n . ed. . o dyer term mich. . . el. p call●● l●ct . in h●●p . g●●ii p. u●i citat calu● . d●m . hen. con●●able . q b●act . c. . r . coke rep. ſ 〈…〉 . t 〈…〉 trin. . el. u 〈…〉 . w 〈…〉 x casus lacy trin. . el. y ed. . . z s● . ampliare juridictioonem in quibus non est amplia●da , &c. a 〈◊〉 . scac . pasc . . el. b . ed. . . tit . tit . connusance . . c r . tit . trespass in stath . pl. . d . h. . . e super c. . hujus . lib. f stat. . r. . c. . g infra cap. h . h. . . i r. . c. . k ass . pl. . l lib. e. . praecitat . m . ass . pl , . n ed. . praecitat . o fortesc . ca. . f. . p r. . g. . q seld. mare clausum , de dominio maris per totum . r super l. . cap. . ſ super hoc capite . t & . ph. & ma dyet . . u inf. a lib. . c. , , , &c. x sup. lib. . c. . y inf. l. . c. , , , &c. z book of entries , fol. . tit . admiralty . a super l. . c. . b i●s . l . c. , , , &c. c rot. . mich. h. . d sup. l. . c. ● . e 〈◊〉 super l. . c. . f serjeant callis lect. . p. . g f. 〈◊〉 caup . stab . l. . sect . . h ead. l. sect . . i eod. & ead . l. sect . . k eodem . l ead. leg . sect . . m ead. leg . sect . recepit . n glos● . super eod . sect . verb. & factum . o t. eod . leg . debet exercitor p eod. leg . & ita . p f. de leg . rhod l. navis onustae . q cod. de judi . l. nulli . r ● . ad legem . 〈◊〉 . l. navis . ſ eod. l. lege . t ead. si laborante & closs . & sect . cum in ead . & ibi gloss . & l. am●ssae & l. cum depressa . u l. ead . § si conservatis . x ead ●cum 〈◊〉 & ibi gloss . y ead. 〈◊〉 navis . z ead. ● . portio . a ead. sect . severum sect . signis sect . si res & sex . res autem & l. qui levandae . b l. cum arbor , & l. amissa sect . arbore . c tit. eod . l. navis , sect . sed 〈◊〉 . d l. ead . sect . cum autem & gloss . e e. ead . l. amissa . f eod. navis adveasa & gloss . & l. cum . depressa . h f. ad legem aquiliam l. quem admodum . sect. , , , & . a li. . c. . b la ley oler . c la ley oler . jud. . d ol. jud. . e ol. jud. . f ol. jud . in quibusque l. jud . . g ol jud. in quibusque lib. . h ol. jud. . in aliis lib. . i o● . jud. . in aliis . k ol. jud. . in aliis l. . l ol. jud. . . & jud. . m ol. jud. ● . a stat. ult . pa. . b the jurates oath pag. . c pag. . d art. . p. . e art. . p. . f art. . p. . g art. . p. . h art. . p. . i art. . p. . k art. . p. . l art. . p. . m pag. . n pag. . o pag. . p pag. . q pag. . r pag. . ſ pag. . & . t pag. . u h. . . . w sup. l. . cap . x pag. . y pag. . z pag. . a pag. . b pag. . c pag. . d pag. . e pag. . f pag. . g pag. . a pag. . b ord. . pa. . c sup. ca● . prox . praed . d ord. . pag. . e ord. ult . p. . f art , , , . p. . g art. . p. . h a●t . . ●a . i art. & . p. . k art. , . & . pa. . l a●t . , . pag. . m 〈◊〉 . , , . pa. . . n art. . p. . o cap. p art. . . pa. . q art. . & . p. . r art. . pa. . ſ art. . & . pag. . t art. . pa. . u pag. ▪ a i here contradict not wel for roughton might also translate the statutes and articles of quinborow at some other time as well as these . b sup. lib. . cap. b sup. lib. . cap. c articulorum fronte . d certis tida & loco ; nota , that the tide is observed by ebbing and flowing upon the ports and havens , and not upon the high sea . e cap. g roughton art. & . h roughton , art. . i roughton , art. . k roughton , art. . l roughton , art. . m rought . art. . n roughton , art. . o roughton , art. . p roughton , art. . q roughton , art. . r roughton , art. . & . ſ roughton , art. , , & . t roughton , art. ● . u roughton , art. . w roughton , 〈…〉 x roughton , art. ● . y r. art. , , . z r. art. . a r. art. . b r. art. . c justin . in confirm . f. in prin . d idem . ibid. e idem , ibid. f boer . de authoritate parla . ga● n. . g id. eod loco . h bart. l. . c. d●u●c . l. . i boer . eod . lo. k id. ibid. l l. humanū cod. de lege . m boer . eod . lo. n. . n paul. de castr● consil . . vol. antiq . o id. boer . n. eod . p id. ibid. num . . a sup. lib. . cap. . b suqr . l. . a f. tit . . lib. . b f. lib. . tit . . c f. lib. . tit . . d sup. lib. . cap. , , . e f. lib. . tit . f peckius in pr●●cipio super dicto tit . g f. lib ● . tit . . l. . l. etiam . § 〈…〉 prator . h leg. eadem . § non tantum . i l. eadem §. non solum . k 〈◊〉 . de incend . ruin . nauf . l praetor ait . sect. item praetor ait : & l. siquis . sect. ●acentem . l eod. l. quo naufragium in prin . m ●od . l. pedius . sect. divus antonius . n eod. l. ne quid . . o authr . navigia , & de furtis . p peckius super 〈◊〉 . q peck . ibid. r l. . & 〈◊〉 naufragiis . tit . . l. siquando . ſ object . e● stat . . rich. . cap. . t supra cap. hoc hujus lib. . u f. de incend . ruin . naufr . l. praetor ait sect. 〈◊〉 . praetor ait , & l. siquis . jacentem & . l. quo naufr . prin . w c. li. tit . . de nav cular●is seu naucleris publicas species transportantibus l. nullam vim . x ●od . l. fin . judice● qui. y peckius super ead . leg . z f. de . navibus non excusandis . c. li. . tit . . & peck . ibidem . a f. ne quid . fiat in stum . publ . l. . in . prin . b f. ne quia in stum . publ . l. . in prin . b ●od . l. 〈◊〉 & § ●●d . c eod. l. ead . & . . d eod. l. ead . §. . e h. . . rot. adm●r . an . . eli● . m. . rot. ad. an . eod . m. , , & . alia sunt precepta sub eod . tenore . rot. admir . an . . eliz. m. . rot. admir . an . eod . rot. admir . an . . el. m. . rot. admir . an . . el. m. . rot. admir . an . ● . el. m. . ●od . an . m. ● . m . rot. admir . an . . el. m. . ●ot . admir . an . . el. m. . rot. admir . an . . el. m. . rot. admir . an . . el. m. . a super fil . prohib . & consul . 〈◊〉 ●egisto , ad● . m. . b . may. . h. . c eod. m. . super eod . fil . m. . ins . cap. lib. . 〈◊〉 eod . fil . ● . . sup. eod . fil . m . infra lib. . cap. . so that the charter-party though made at land , by this statue is cognoscible by the admiralty for the breach of it . sup. cap , , , . hujus lib. . sup. cap. , , , . hujus lib. . notes for div a -e sup. lib. . c. sup. li. . c. . coke li. . instit . cap. . coke li. . instit . cap. . 〈…〉 〈…〉 a 〈…〉 f. de legibus l. scire leges . g rot. parl. a● . r. . m. . h rot. parl. an . . r. . n. . sup. l. . cap. . inf●a cap. proxim . & sequent . stat. rich. . . . li. nigro admirallitatis , p. . rough. ar. . sup. li. . c. . seunda pars hujus capitis . super li. oler . judg. . supr . li. 〈◊〉 secundo cap. , . l oler . jud . . oler . jud . super. li. cap. ol. jud. . ol. jud , . ol. jud. . jud . , & . judm . . oler . jud. . oler . jud. . & . sup ● . edw. . sup. li. . cap. . sup. li. . ca. . sup. cap. of the second book . inq. apud quin. capta art . . inq. apud quin. capta art . . inq. quin. art . . inq. quin. art . . inq. quin. art . . sup l. . ca. . sup. cap. ▪ hujus lib. coke li. . inst . cap. . stat. r. . cap . stat. r. . cap. . sup. cap. . hujus lib. . rot. parl. ● . r. . n. . coke jurisd . of courts , cap. . sup. cap. . l. . sup. cap. ▪ hujus lib. . f. de obl . & act . l. contraxisse . f. de bonis a●ab . jud . poss . f. de jud . l. haeres . §. sin . f. eodem l. . decis . sen . dolani per grevellum decis . . n. . sup. hoc . cap. sup. hoc . cap. ●d . tit . coron . . stan● . pl. of the crown . lib. . fol. . b. sup. li. . ca. . ins . cap. . li. . sup. li. . ca. . cokes juris of courts , cap. . parl. h. . mem . . . hen. mem . . ●up . li. ▪ cap. . sup. hoc cap ▪ 〈◊〉 . sup. lib. cap. sup. c. . li. ● . . eli. paschae . j. par patend . . ● . . m. . an. ric. . . part . pat . m. . an h. . 〈…〉 . . an . h. . . parte paten m. . coke instit . part● . cap. . pag. . 〈…〉 . an. . h. . in 〈◊〉 ut in . 〈◊〉 adm. m. . an. h. . in fit. prohib . & consult . in registro adm. an. h . . in fil. prohib . & consul . m. . fil. prohib . & consulta in registro admir . m. . hen . julii . julii h. . hil. . eliz. term. hil prox . june eliz. . jan. elig . sup. lib. . ● cap. . pasc . car. pasch . ca● . sup. li. . ca. , , , &c. sup. li. . cap. de jure maritimo et navali, or, a treatise of affairs maritime and of commerce in three books / by charles molloy. molloy, charles, - . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a wing m estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. 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[ ], [i.e. ], [ ] p. printed for john bellinger ... george dawes ... and robert boulter ..., london : . includes bibliographical references and index. reproduction of original in bodleian library. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the , texts created during phase of the project have been released into the public domain as of january . anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng maritime law. commercial law. - tcp assigned for keying and markup - apex covantage keyed and coded from proquest page images - rina kor sampled and proofread - rina kor text and markup reviewed and edited - pfs batch review (qc) and xml conversion de jure maritimo et navali : or , a treatise of affaires maritime , and of commerce . in three books . london , printed for john bellinger in clifford's inne lane against the west doore of st. dunstan's church ; and george dawes in chancery lane against lincolns-inne gate ; and robert boulter at the turk's head in cornhill . . the wisdome of god is highly to be admired , who hath not endowed the other living creatures with that soveraigne perfection of wisdome , but hath secured and provided for them by natural muniments from assault and peril and other necessities ; but to man , he formed him naked and frail , because of furnishing him with wisdome , understanding , memory and sence to govern his actions , endowing him with that pious affection of desiring society , whereby one is inclined to defend , love , cherish and afford mutual ayd to each other : nor hath he in no less a wonderful manner ( infinitely transcending all humane wisdom and understanding ) created the material world to be subservient to his being and well-being : yet , without humane understanding and reason did he not build a ship , raise a fort , make bread or cloth , but these came to pass onely by humane arts and industry , in which by the revolutions of the coelestial bodies , times and seasons , materials and other necessaries are brought forth , by the alteration of which , men in their proper seasons reap the fruits of their labour ; so that there is no society , † nation , countrey or kingdom but stands in need of another : hence it is that men knowing each others necessities , are invited to traffique and commerce in the different parts and emensities of this vast world to supply each others necessities , and adorn the conveniences of humane life . and as god hath so ordered this wonderful dependance of his creatures on each other , so hath he by a law immutable provided a rule for men in all their actions , obliging each other to the performance of that which is right not onely to justice , † but likewise to all other moral virtues ; the which is no more but the dictate of right reason founded in the soul of man , shewing the necessity to be in some act by its convenience and disconvenience in the rational nature in man , and consequently that it is either forbidden or commanded by the author of nature , which is the eternal creator of all things : and as god hath imprinted this universal law in the minds of all men , so hath he given men power ( society being admitted ) to establish other lawes which proceeds from the will , the which is drawn from the civil power , that is , from him or them that rule the commonwealth or society of freemen united for their common benefit , ( which is called the lawes of nations ) and which by the will of all or many nations , hath received force to oblige , and is * proved by a continued use and testimony of authentique memorials of learned or skilful men. now by the lawes of nature every man is bound to profit another in what he can , † nor is the same onely lawful but commendable ; so true was that saying , nothing is more serviceable to man then man : * but if man shall neglect this immutable law in the ayding and assisting his fellow citizen , and enquire and dispute why god had laid this necessity upon him ; and when opportunity gives leave to take the benefit of wind or tyde , ( in order to his furnishing himself or neighbour with those things that adorn humane life ) to dispute the causes of their flux and reflux , and how they vary and change , he not only offends the laws of nature , but assumes a power of destroying society , and consequently becomes ( at the least ) a wilful transgressor of the lawes of nations . and though the eternal power hath so established this necessity in mankind , that every man should stand in need of another man , yet so great a providence is over industrious men , that scarce any man not disabled by nature or accident , sickness , impotenoy and the like , but by his industry and pains may earn more than would supply his necessities ; and so much as any man gets by being truly industrious above what supplyes his necessities , is so much beneficial to himself and family , as also an enriching to that kingdome or state where he resides : from hence it is , that all mankind ( present or to come ) are either traders by themselves or others ; and the ends designed by trade and commerce , are strength , wealth and imployment for all sorts of people , ( where the same doth most flourish ) the end * tending to the advancement , oppulancy and greatness of such a kingdom or state. constantinople ( the throne once of christendome ) having been sack't by mahomet the second , became a place of desolation as well as horror , yet he by granting a free trade and religion soon after repeopled that great ( but unhappy ) spott . nor did silemus tread amiss in following the steps of his victorious predecessor , when having the like success on tauris and grand cairo , he translated the persian and egyptian artificers and traders to that repeopled city , following the example of the roman virtues . nor did our victorious third edward deem it an act unbeseeming his great wisdome , when he brought in the walloons , whose industry soon established the woollen manufacture , he not deigning to give no less a security for the enjoying their then granted immunities and priviledges , then his own royal person . nor did that politick princess † shut her ears from embracing the offer of those distressed burgundians ( after the example of her great and royal predecessor ) who sought refuge in her dominions from the ridged severity of the long bearded alva , who planting themselves by her appointment at norwich , colchester , canterbury , and other towns , have of those places ( then only habitations for beggars ) raised them now in competition with ( if not excelling ) all , or most of the cities in england , for riches , plenty and trade . nor need we run into the history of earlier times to give an account of the many kingdomes and states that have risen by industry and commerce ; 't is enough if we cast our eyes on our neighbour the hollander , a place by relation of ortelius , not much bigger then yorkshire , and such a spott , as if god had reserved it as a place onely to digg turf out of , for the accommodateing those countries wherein he hoards up the miseries of winter , it affording naturally not any one commodity of use , yet by commerce and trade ( the daughters of industry ) it is now become the store-house of all those merchandizes that may be collected from the rising to the setting of the sun , and gives those people a name as large and high as the greatest monarch this day on earth : nor need we pass out of christendome to find examples of the like , when venice , genoa , lubeck , embden , and the rest of the hansiatique towns ( once the marts of the world , till sloth , luxury and ambition got within their walls , and drove it to ports of industry ) that have since kist and embrac't it , the which this isle by the influence of his royal majestic hath been no small sharer in . hence it is that trade and commerce are now become the onely object and care of all princes and potentates , its dominion not being acquired by the rufull face of warr , whose footsteps leave behind them the deep impression of misery , devastation and poverty , they knowing the return of commerce is riches and plenty of all things conducing to the benefit of humane life , and fortifying their countries with reputation and strength — it was trade that gave occasion to the bringing of those mighty fleets to sea , as if god had left it to them to decide by force ( wherein no age or time can witness the like ) the empire of the world : hence it was ( the advantages being found which arise by commerce ) that navigation got its birth into the world , reducing the several nations on the earth by that means to be even as one common family ; and when in this isle we were even in the state of canibals , it brought in a people that instructed us in arts , policies and manners , and taught us actions no less virtuous then those themselves followed ; and although long and difficult it was before that mighty people could be brought over to have thoughts of the advantages arising from commerce and navigation ( they onely propounding to themselves blood , slaughter , conquest , the riches and spoyls of nations ) ; but when they entred into the carthagenian warr , a quarrel with a people not worth the opposition of tribune ( as they thought ) but finding that neither tribune nor pretors , no nor the flower of the roman army was able to withstand them , or to prevent the invasion of their country , and then in the very bowels of the same , put it to the question , rome or carthage mistress of the world , they began to consider whence and from what causes those unknown affricans should withstand the conscript fathers and power of rome , and should dare to dispute with those that had lead so many captivated kings in triumph , and brought so many haughty nations to truckle under their victorious eagles , at last they found it was commerce and navigation that gave power and force to that mighty people ; then it was that rome began to know that rome could not be rome without a naval force ; the which , and to redeem their bleeding honor they soon hastened and equipt ' , great as their competitors , and afterwards argentum being won , carthage became no more impregnable ; after which with peace they plowed the neighbouring streights to tinges , gades and the heroulean streights ; nor could any thing be too difficult afterwards , till they arrived on the british shore , where beholding her ample bayes , harbours , rivers , shoares and stations ( the jewels and ornaments of that spott , and having made a conquest of the same ) they soon cultivated into our rude natures the spirit of commerce , teaching & instructing us in those polite ways that fortifie a kingdom by naval force , as the standard and undeniable marks of empire , and by ayding and teaching us in the driving on a continued and peaceable tract of commerce , we have fathomed the unknown depth of the indian shoares , uniting as it were extreams , made the poles to kiss each other , teaching us thereby , that it was not the vast emensities of earth that created empire , but scituation accompanied with industry , commerce and navigation that would enable a people to give lawes to the world : in the pursuit of whose virtues this nation hath not been wanting , and of following their great directions in the enlarging our fleets ; for they , when they advanced their eagles on the british shoare found us not then without ships of force , time having not been so envious to this island , as to eat out those records wherein mention is made † that the britains accompanied the cymbrians and gaules in their memorable expedition to greece , long before the incarnation of the worlds saviour ; and it was from that center that the mighty caesar first drew his line , and took thoughts of plowing the ocean to find out that warlike people to face his victorious legions , when , having landed , and finding a place adorned by nature beyond any thing that could be called great , taught us to maintain that superiority of dominion , that no neighbouring nation should frequent our peaceable shoares , and those merchants that came , assigned them places to drive their commerce and traffique , jealous that any neighbouring rival should kiss his beloved britannia but a roman , and for whom he fetch 't so long and tedious a march ; thus in our infancy teaching us both defence and commerce . and when that mighty empire began to decline , and those remaining romans began to moulter and mix among the natives , and to become as one people again , then sloth , luxury and idleness ( the fore-runners of ruine ) invaded our shoars by a fatal stupidity , it suffered our floating castles ( balwarks of the kingdom ) to rott in their pickled brine , and our ports to be surveyed by forraign people ; which supine negligence soon subjected us a prey to our ambitious neighbors , who no sooner finished their conquest and sheath'd their devouring swords , but each ( as if inspired by the very genius of the place ) equipt out fleets great as their commander , to secure what they had so dearly won , of whom story makes mention of the mighty arthur , no less famous in his warlike atchievements , then in leading his squadrons as far as iceland , bringing those northern people to pay obeysance to his victorious standard , and acknowledge him as their supream lord even from the british to the russian tracts , and by him left to the famous edgar , * who no sooner found his undoubted right , but resolved to vindicate that dominion which his royal predecessor had with so much glory acquired , and with so great care had communicated and remitted down to his successors : no less a number then four hundred sayl of ships did that mighty prince at once cover the neighbouring ocean , making them the port-cullis of this isle and the adjacent seas , by which he vindicated his dominions on the waters , and gave lawes in the chambers of his empire : nor did his successors canutus , ( whom record makes mention that having laid that ancient tribute called danegeld , for the guarding of the seas and soveraignty of them , was emblematically exprest sitting on the shoar in his royal chair while the sea was flowing , speaking , cumeae ditionis es ●…t tetra in qua seneo est ●…c . ) egbert , althred , ethelfred , forget the assertion of their great predecessors dominion and soveraignty of the same under no lower a stile then s●…pream lords of governours of the d●…ean , surrounding the brittish shoare , never so much as contested by any nation whatsoever , unless by those that attempted the conquest of the entire empire , in which that became subject to fate as well as the other of the land : nor did the succeeding princes also of the norman race start or waive that mighty advantage in their successive claims , and maintaining their right to the adjacent sea ; as appeared not long after by that famous accord made between edward ths first , and the french king philip the fair , calling * him to an account for pyracies committed within the brittish seas ; the submission of the flemmings in open parliament in the second edwards reign ; and the honour or duty of the flagg which the politique king john had above four hundred years since challenged by that memorable ordinance at hasting † there decreed to take place universally , not barely as a civility , but as a right , to be paid cum debita reverentia , and persons refusing to be assaulted and taken as enemies ; the same not onely to be paid to whole fleets bearing the royal standard , but to those ships of priviledge that wear the princes ensigns or colours of service : nor was this barely a decree written , but nobly asserted by a fleet of no less than sayl in a voyage royal of his , wherein he sail'd for ireland , in his way commanding all vessels which he met in the eight circumfluent seas to pay that duty and acknowledgment . nor was the third edward slow in following the steps of his wise predecessors , when he equipp'd out a fleet of no less than , ( though on another occasion ) with of which he vanquished a fleet of twice the number before calais , to the loss of french. nor did our victorious conquerour of the sepulchre the great richard the second , who in his return from the holy land want a navy royal to attend him home , by the force of which he took and destroyed near more ships of the french. and look we but into the mighty actions of the succeeding princes , we shall find all that ever designed empire but were zealous in the encouragement of navigation , looking on that axiom as undeniable , * qui mare tenet cum necesse esse rerum potiri , and that without which , the british soveraignty is but an empty title . nor ought alone the praises of those great monarchs , whose mighty care had always been to preserve the reputation of their empire in their maritime preparations , to be remembred ; but also those of our inhabitants , who alwayes have been as industrious to follow the encouragement of those princes under whom they flourish't , and who with no less glory and timely application in traffique , did constantly follow the examples of those of genoa , portugal , spaniards , castillians , and venetians , whose fame in matters of commerce ought to be inrolled in letters of gold , since the ages to come , as well as present , having been doubly obliged to their memory , the third of which making use of a discontented native of this isle , the famous columbus who prompted by that genius that naturally follows a native wise man , discovered a new world , in whose expedition he fathomed unknown paths , and detected the antillus , cuba and jumaca , &c. and the terra firma of the american shoare , who taking his conjectures from the spireing of certain winds from the vvestern points , by strong impulse accompanied with that philosophy he attained to , concluded some continent must needs be hid in those unknown parts ; his service being first offered to his prince and refused , he was soon after entertained , purely on the faith of that noble princess issabella of spain , who for crowns ( for which she engaged her jewels ) she received not long after as many tuns of treasure , and to her husband 's own use , in eight or nine years time came above fifteen hundred thousand of silver , and three hundred and sixty tuns of gold : thus ingenuity encouraged though in one single person , hath occasioned wonders , and from a small kingdom , ( as spain ) it hath since raised its head in a condition of bringing all those many kingdomes and vast emensities of earth which they possess under their protection , putting them once on thoughts of no less than an universal monarchy : we need onely mention sebastian chabott a native of bristol , who discovered florida and the shoares of virginia , dedicated to that virgin princess elizabeth ; thorn , elliott , owen , gwyned , hawkins , cavendish , furbisher , davis , stadson , raleigh , and the incomparable drake , who was the first ( agreed universally ) of any mortal to whom god vouchsafed the stupendious atchievement of incompassing not this new world alone , but new and old together , twice embraced by this mighty man , who first making up to nombre de dios , got sight ( with tears of joy ) of the southern seas , the which in five years after he accomplished it , passing through the magellan streights towards the other indies , and doubling the famous promontory , he circum-navigated the whole earth . nor ought that truly worthy captain sir john norborough be precluded from having place after the mighty drake , he having not long since passed and repassed the magellan streights , by which that worthy person hath performed that atchievement which was never yet done by any mortal before . to reckon up the particular actions of john oxenham ( a sharer in that mighty performance of drake , ) of his drawing his vessel up to land and covering the same with boughs , passed the unknown paths of land from nombre de dios , to the south sea , and there building a pinnace enters the isle of pearles , and from the spaniards takes a treasure almost beyond credit ; of the indefatigable diligence of willoughby , burroughs , chanceler , button , buffin , furbisher , james middleton , gilbert cumberland , who plowed up the north-east and north-west cathaian and china passage ; of jones and smith , whose fortune and courage was great in those parts ; of poole , who found out the whale fishing ; of captain bennett the first discoverer of cherry island ; gillian and of pett , and jackman that passed the vaigates , scythian ices , and the river of ob , as far as nova zembla ; nor of the famous davies , who had penetrated to degrees of latitude , and almost set his foot on the northern pole : men whose actions in the atchieving of discoveries , and pointing out to places for an immense improvement in navigation and commerce , ought to be inrolled in the temple of fame as monuments to succeeding ages , of their mighty and laborious travails and industry . the consideration of all which gave some sparks of encouragement to the writing the ensuing tract , especially when reflecting that among all nations there is a common law which governs the mighty thing of navigation and commerce , i had some impulses more then ordinary to induce me to the same , especially at a time when navigation and commerce were never ( from the erection by divine instinct that mighty proto-type the ark , to this present age , ) in greater esteem then now , and by which we have found vast and great easements and discharges from those royal and just rights and dues which ever were , and of old justly due to those that govern'd this empire ; therefore ought by all wayes and means to be fortified and encouraged , be it by whatsoever art , science or thing that does in the least point out towards the same . nor was it then wanting in thoughts to promote and incite the professors of the law , raising and stirring up their genius to the advancement of the law in this point ; and though i believe many have wish't that such a thing might be , yet none that i can find have ever yet attempted the same : nor is it possible , unless those things which are by law constituted and known , be rightly separated from those that are natural ; for natural law is immutable and alwayes the same , therefore may easily be collected into art. but things that come from constitution , because they often vary and change , and are divers in divers places , are put without art , as other precepts of laws positive or municipal ; hence it was that the constitutions and laws of rhodes for their justice and equity got footing amongst the romans as well as amongst other the bordering people on the mediterranean , rhodiorum usque rerum memoriam disciplinae navalis et gloria remansit ; yet when they as well as the romans became subject to fate , they then remained onely as examples of justice and reason for others to imitate and follow : an obsequious adorer of which was the great justinian , who caused them to be inserted into the civil law ; and though they obtained a place amongst others of the ancient romans as well as the modern , yet have they not all received by custome a force as may make them laws , but remain onely as they have the authority in shew of reason , which binds not always alike , but varies according to circumstance of time , place , state , age , and what other conveniences or inconvenience meets with it ; nor have those laws instituted at oleron obtained any other or greater force then those of rhodes or imperial , considered onely from the reason the which are not become lawes by any particular custome or constitution , but onely esteemed and valued by the reasons found in them and applyed to the case emergent . t is true , that in rome and some other parts of italy and germany , and the kingdom of portugal , in all those cases wherein the municipal ordinances of those countries have failed in providing , the imperial laws ( if the case be such as that it non tragua peccado , or be not spiritual , ) is there made of force ; but there is no other nation , state or republique can be named where any part of the body of those imperial lawes hath obtained the just force of a law , otherwise then as custome hath particularly induced it ; and where no such settled custom hath made it a law , there it hath force onely according to the strength of reason and circumstance joyned with it , or as it shews the opinion and judgment of them that made it , but not at all as if it had any commanding power of obedience , that is valet pro ratione non pro inducto jure pro ratione quantum reges dinastae et republicae intra potestatis suae fynes valere patiuntur ; and for spain it is observed , hispani duplex habent jus solum canonicum scilicet et regium civile enim ( meaning the imperial lawes ) non habet vim leges sed rationes . and since this kingdom as well as most others being free from all subjection to the empire , having constituted or known laws of their own , exclude all imperial power and law , otherwise then as custome hath variously made some admission , i applyed my self to the collection of such matters , according to my inconsiderable judgment , as are either constituted by the supream authority of the three estates , or that which hath in some measure obtained by continued custome the force of law in reference to matters maritime and of commerce as well in cases publique as private . by the first part of which i thought it necessary , since nature by traffique hath made us all kinsmen , to consider and examine upon what grounds and in what manner commerce was first procured and established , which is by the lawes of leagues , embassies and the like , which is a thing fit to be known ; so likewise of what may interrupt the same , and likewise of those perpetual rights that are between those that have any reference to sea-faring causes in matters civil . in the prosecution of this work , i have taken care to refer those things which pertain to the lawes of nature unto notions so certain , that no man without offering of violence to himself may deny them ; and to ascertain the truth of such , i have used the testimonies of such authority ( as in my weak judgment are of credit to evince the same ) and as to that law which we call the law of will or common consent or the law of nations , for that which cannot by sure consequence be deduced out of sure principals , and yet appears every where observed , must needs have its rise from free will and consent , which is that which is called the law of nations ; both which ( as much as possible ) hath been endeavoured to be kept asunder where the matter hath required it . and for the civil law , i have ascertained the several authorities which i have made use of , that is of the romans , into three sorts , the pandects , the code of theodosius and justinian , the novel constitutions , and these most excellent juris consults that have by their profoundness of judgment illustrated the obscure paths of the same law ; the third those most excellent persons who joyned policy to law , as grotius , raleigh , selden , and the like . of other pieces that of shardius , entituled leges navales rhodiorum et selectae rhodiorum , petrus pekius the zealander , locinius , vinius , that of oleron collected by garasias alias ferrand , and cleriack . as to those matters that have passed the pikes at the common law , i have as carefully as possible referred to their several authorities . in the whole work i have no where meddled with the admiralty or its jurisdiction , knowing well that it would have been impertinent and sawey in me to enter into the debate of imperium merum , imperium mixtum jurisdictio simplex , and the like , and of the bounding out of jurisdictions , which in effect tends to question the government , and tripp up the power that gives lawes and protection to us , since all that can be said as well on the one side as the other , hath been so fully and learnedly handled and treated of by several worthy persons , ( that have indeed said all that can be said ) but more especially in that famous dispute not long since before his sacred majesty in council , where all the most elaborate and ingenious reasons that could be drawn by the skill of a learned civilian , were there asserted in vindicating the admiralties jurisdiction , by the judge of the same , sir lionel jenkins , in answer of whom was produced that great good man the lord chief justice hale , who as well by law positive as other his great reasons , soon put a period to that question , and layd that asleep which during his dayes it may modestly be presumed will hardly ( if ever ) be awakened . he that hath never so little to do with the compass though he sits still in his place , does as much or more than all the other necessary noise in the ship ; the comparison is quit of arrogance , for it holdeth in the design , it is not meant of the performance . and though i well know , that those that spend their time in brewing of books are by seneca compared to petty painters , that busie themselves in copying out originals , having this half verse of horace often thrown in their teeth , — o imitatores , servum pecus ! yet i have this hope left , that my faults and flawes like those found in the cutts of diamonds , may at this time the easilier escape under the excellency of their subject , or at least under that of your charity . the contents of the first book . chap. fol. . of dominion and property in general , and of the causes changing the same by ships of warr. . of letters of marque and reprizal . . of privateers or capers . . of pyracy . . the right of the flagg as to acknowledging the dominion of the british seas . . of the right of pressing or seizing of ships or marriners for service publique . . of dominion established by treaties of alliance equal . . of alliances unequal , and of protection . . of treaties of truce and neutrality . . of the immunities and priviledges of ambassadours and other publique ministers of state. . of the right of delivering of persons fled for protection . . of contribution paid by places neuter , to both armies in warr. . of the naval military part . . of salutation by ships publique and private . the contents of the second book . . of the various rights and obligations of owners and partners of ships in cases private . . masters of ships their actions considered in reference to cases private and publique . . of marriners their several offices and immunities , and of barratry committed by them . . of freight , charter-parties and demorage . . of wreck . chap. fol. . of averidges and contributions . . of pollicies of assurance . . of prisage and butlerage . . of pylots , wharfage , primage , averidge , and loadmanage . . of bills of exchange . . of moneys advanced by way of bottomery , or foenus nauticum . . of impositions called great customes , petty customes , and subsidies . . of impositions subsequent conditional temporary , &c. . of scavage , package , porterage , ports , members , creeks , the port of london , and places lawful to lade and unlade . provisions and allowances made notwithstanding the several clauses in the acts for the customes . . of the right of passage , of imposing on the persons and strangers for passage thorow the seas . the contents of the third book . . of freedome , bondage , slavery , exile and abjuration . . of aliens as in reference to their estates real and personal . . of naturalization and denization . . of aliens and tryal per medietatem , where allowed , and where not . . of planters . . of merchants . . of factors . . of the lawes of nature , and of nations . chap. i. of dominion and property in generall , and of the causes changing the same by ships of war. i. of dominion in the primitive state of man. ii. that such a dominion universal might have continued . iii. of the causes or change of the same into dominion peculiar , or property . iv. of things excepted tacitly by the law of dominion . v. of property where the same may be changed against the owner . vi. of war , when accounted by the laws of england . vii . of forraign war , and of things justly acquired therein , whether ships or merchandize . viii . of restitution , where the same by law may be made of ships or merchandize acquired in war. ix . of restitution ex gratia , made by the souveraign , of him whose ships are lost , and regain'd afterwards in battle by ships of war ; and of the like by princes or republiques in amity . x. of the assaulting an enemy in the ports or havens of a nation neuter , whether lawful by the laws of nations . xi . of protection given to the ships of the enemies being in port before , & remaining after war denonnc't . xii . of the goods of friends found in the ships of enemies , and of those of enemies found aboard the ships of friends . xiii . of the destroying of the ships of enemies in general . xiv . of interpellation and denunciation , whether necessary . xv. of the goods of friends that supplyeth an enemy , whether capable of being made prize . i. no sooner had the eternal power created man , but he bestowed on him a right over the things of this inferiour nature ; nor was his goodness lessened upon the reparation of the world , after the flood , ( all things being then undivided and common to all , as if all had one patrimony ) since every man might then take to his use what he pleased , and make consumption of what he thought good in his own eyes ; which use of the universal right was then instead of property , for what any one had so taken , another could not without injury take away from him . ii. nor was it impossible for that state to have continued , if men through great simplicity , or mutual charity had lived together , and this is instant in those americans , who through many ages have lived in that community and custom , and the other of charity , which the essens of old practised , and then the christians , who were first at hierusalem , and at this day not a few that lead an assetick life ; the simplicity of our first parents was demonstrated by their nakedness , there being in them rather an ignorance of vice , then a knowledge of virtue , their only business being the worship of god , living easily on those things , which the earth of her own accord brought forth without labour . iii. yet in this simple and innocent way of life , all men persisted not , but some apply'd their minds to various arts ; the most antient of which was agriculture and pasture , appearing in the first brothers , not without some distribution of estates , and then from the diversity of each man's actions , arose emulation , and then slaughter ! ; and at length , when the good were infected with the bad , a gigantick kind of life , that is violent ; but the world being washed by the flood , instead of that fierce life , succeeded the desire of pleasure , whereunto wine was subservient ; and thence arose unlawful loves , but by that more generous vice ambition , concord was chiefly broken , after which men parted asunder , and severally possess'd several parts of the earth ; yet afterwards , there remain'd amongst neighbors a communion not of cattle , but of pastures , because in the small number of men , so great was the latitude of land , that without any incommodity it might suffice to the uses of many , untill the number of men , so of cattle increased , lands every where began to be divided , not among nations as before , but among families ; an instance of which we have hourly before our eyes in those vast immensities that are daily appropriating and a planting in america , from hence we learn what was the cause for which men departed from the primitive communion of things , first of movables , and then of immovables also ; to wit , because when not content to feed upon that which of it self , and the earth singly brought forth , to dwell in caves , to go naked , ●…or clad with rinds of trees , or skins of beasts ; they had chosen a more exquisite kind of life , there was need of industry , and using of art in those matters , which they should give themselves up to ; so likewise from hence we learn , that men not content to live in that innocent state of community , how things went into property , not only by theact of the mind ( for they could not know the thoughts of one another , what every one would have to be his own , that they might abstain from it , and many might desire the same thing ) but by a certain copenant , either express as by division , or tacit as by occupation ; for so soon as communion did not please them , and division was not made , it ought to be supposed an agreement amongst all , that every one should have proper to him self what he seized on , † for every one might prefer himself before another , in getting those things useful for the accommodating of humane life , nature not being repugnant to the same . iv. and though property may seem to have swallow'd up all that right which arose from the common state of things , yet that is not so ; for in the law of dominion , extream necessity seems excepted . hence it is that in navigation , if at any time victuals fail , what every one hath , ought to be brought forth for the common use : and so in a fire , i may pull down or blow up my neighbors house , to save mine ; destroy the suburbs , to raise lines or forts , to preserve the city thereby ; dig in any mans grounds for salt-peter , cut in pieces the tackling or nets upon which my ship is driven , if it cannot be disintangled by other means , all which are not introduced neither by the civil law , nor the municipal laws of countrys , but are expounded by them , with their proper diversities . v. nor is property so far instated in man , but the same may again be devested by such means as stand with the law of nature and nations ; and first by war , the causes of which are assigned to be three , defence , recovery and revenge . but then such war must be just , and he that undertakes it must be a soveraign ; the just causes to make a war are our princes , or countreys defence , and that of our allies , the satisfaction of our injuries , or theirs ; our just pretentions to an estate or right ; divines have added another , not only the defence of religion , but its advancement and propagation , by the way of arms , and some the extirpation and rooting up a contrary . certainly war is too rough a hand , too bad a means , to plant piety ; sicut non martyrem poena , sic nec sortem pugna , sed causa ; as it is not the punishment that makes the martyr , so it is not fighting that declares a valiant man , but fighting in a just cause ; in which who so shall resolvedly end his life valiantly , in respect of the cause , that is , in the defence of his prince , religion or country , ought to be numbred amongst the martyrs of god. vi. war by the laws of england , is accounted when the courts of justice are shut up , and the judges and ministers of the same cannot by law protect men from violence , nor distribute justice . so when by invasion , insurrection , rebellions , or such like , the current of justice is stopt and shut up ; et silent leges inter arma ; then it is said to be time of war , and the tryall of this is by records and judges of the courts of justice , and not by a jury : the kings standard appearing in the feild , or at sea , does likewise denote a war , and if the rebells against whom the kings host marches , breaks a prison , the goaler is not lyable , for they are not such rebels as are capable of being supprest by the ordinary ministers of justice ; but the subject matter is now only touching forraign war , or that which is commenced for dominion or right , or for the maintaning of the same in our peaceable possession , according to justice . vii . by the law of nature in such a war , those things are acquired to us , which are either equall to that , which being due unto us , we cannot otherwise obtain , or else is much a mark as does infer damage to the guilty part , by a fit measure of punishment . and by the laws of nations not only he that wageth war on a just cause , but every one in solemn war , and without end and measure is master of all he taketh from the enemy in that sense , that by all nations , both himself and they that have title from him , are to be maintained in the possession of such things ; which as to external effect we may call dominion : cyrus in xenophon , it is an everlasting law among men , that the enemies city being taken , their goods and money should be the conquerors ; for the law in that matter is as a common agreement , whereby the things taken in war become the takers : from the enemy are judged to be taken away , those things also which are taken away from the subjects of the enemy , and goods so taken cannot by the law of nations be properly said taken , but when the same are out of all probable hopes of recovery , that is as pomponius observes , brought within the bounds or guards of the enemy ; for , says he , such is a person taken in war , whom the enemies have taken out of our , and brought within their guards , for till then he remains a citizen : and as the law of nations is the same reason of a man , so likewise of a thing ; and therefore goods and merchandize are properly said to be the captors , when they are carried in●…ra praesidia of that prince or state , by whose subject the same were taken , or into the fleet , or into a haven , or some other place where the navy of the enemy rides : for then it is that the recovery seems to be past all hope . and with these laws agrees the common law of this realm , which calls such a taking a legalis captio in jure belli , and therefore in . r. . an action of trespass was brought for a ship , and certain merchandize taken away ; the defendant pleaded that he did take them in le haut mere o●… les normans queu●… sont enemies le roy : and it was adjudged , that the same plea was good . in the year , a merchant had a ship and merchandize taken by a spaniard , being an enemy ; a month after a merchant man , with a ship called the little richard , retakes her from the spaniard : it was adjudged , that such a possession of the enemy , divested the owner of his interrest , and the retaking afterwards in battel , gained the captors a property . 't is true , the civilians do hold , that it is not every possession that qualifies such a caption , and makes it become the captors ; but a firm possession ( that is ) when the prize doth pernoctare with the enemy , or remain in his possession , by the space of hours ; but as this is a new * law , so it is conceiv'd to be against the antient as well as the modern practice of the common law : for the party in the antient presidents doth not mention by their plea , that the prize did pernoctare with the enemy , and but general , that the same was gain'd by battle of the enemy . but , if such a recaption is by one of the king of englands ships of war , their restitution has been made , the party relieved paying his offering to the admiral , commonly called salvage mony. viii . this right of changing of dominion or property , by force of arms , is so odious , that in the taking of goods , if by any possibility , the right owners may have restitution , the same hath been done : and although a larger time then hours happens , between the capture and recapture , and so may pernoctare with the captor , yet restitution may be made , and therefore if one enemy takes the ship and merchandize of another enemy , and brings her into the ports or havens of a neuter nation , the owners may seize her , and the admiral of that neuter nation , may in some cases restore the ship and goods to their owners , and the persons captive to their former liberty : the reason is for that the same ought to have been brought infra praesidia a of that prince or state , by whose subject she was taken . a dunkirker having seiz'd a frenchmans vessel , super altum mare , sold the same with her lading at weymouth ; whether it had been driven before she was brought infra praesid . dom. reg. hispaniae : the frenchman coming into port , then claims the benefit of the laws of nations ; the king of england being then in amity with both their princes , and that restitution be made ; in which case it was resolved by all the judges , b that if there be a caption by letters of marque , or by piracy , and the vessel and goods are not brought infra praesidia of that prince or state , by whose subject the same was taken , the same will not divest the property out of the owner ; with this agrees the law civil , c and restitution may be made . ix . but if the ships of war of nations in enmity meet at sea , and there be a caption , if there be that which is called a firm possession , the neuter nation cannot re-deliver or make restitution of the thing so acquired : and so it was adjudged , where samuel pellagy with a ship of war of the emperor of morocco , took a spanish ship , and brought the same into england , that he could no ways be question'd for the same criminaliter , or restitution to be made civiliter ; for that the king of spain and the morocco emperor were enemies , and the king of england in amity with both , and that such a caption is not called spoliatio , sed legalis captio , in which there can be no restitution made upon , neither of the stat. of . h. . cap. . or . ed. . cap. . for he that will sue to have restitution in england for goods taken at sea , must prove that the soveraign of the party was in amity with the king of england . secondly , that he that took the goods , his prince was at the time of the taking in amity with the soveraign of him whose goods were taken ; for if he , which took them , was in enmity with the soveraign of him whose goods were taken , then the same will not amount unto a depredation or robbery , but a lawful taking , as every enemy might take of another . a spanish merchant , before the king and his councel , in camera scaccarii , brought a bill against divers english-men , wherein setting forth , quod depradatus & spoliatus fuit , upon the sea , juxta partes britannia per quendam virum bellicosum de britannia , de quadam navi , and of divers merchandises therein , which were brought into england , and came into the hands of divers engish-men , naming them , and so pray'd process against them , who came in , and pleaded , that in regard this depredation was done by a stranger , and not by the subjects of the king of england , they ought not to answer : it was there resolv'd , quod quisquis extraneus , who brings his bill upon this statute to have restitution , debet probare quod tempore captionis fuit de amicitia domini regis , and also , quod ipse qui eum receperit , & spoliavit , fuit etiam sub obedientia regis , vel de amicitia domini regis , sive principis quaerentis , quia si fuerit inimicus , & sic ceperit bona , tunc non fuit spoliatio , nec depredatio , sed legalis captio , prout quilibet inimicus capit super unum & alterum . but , if the king of england is in enemity with the states of holland , and one of their ships of war takes a merchant-man of the king of englands , and afterwards another ship of war of england meets the dutch-man and his prize , and in aperto praelio , regaines the prize , there restitution is commonly made , the owners paying their salvage : so where the prize is recover'd by a friend in amity or comes into his ports , restitution is likewise made ; but when such goods become a lawful and just prize to the captor , then should the admiral have a tenth part , following the religious example of abraham , after his victory over the five kings . x. he that is an enemy , may every where be assaulted , according to the laws of nations ; enemies may therefore be attaqu'd or slain on our own ground , on our enemies , or on the sea : but to assault , kill , or spoil him in a haven or peaceable port , is not lawful ; but that proceeds not from their persons , but from his right that hath empire there , for civil societies have provided that no force be used in their countreys against men , but that of law , and where that is open , the right of hurting ceaseth : the carthaginean fleet was at anchor in syphax port , who at that time was at peace with the romans and carthagineans , scipio unawars fell into the same haven , the carthaginean fleet being the stronger , might easily have destroy'd the romans ; but yet they durst not fight them : the like did the venetian , who hindred the greeks from assaulting the turkish fleet , who ride at anchor in a haven , then under the government of that republique ; so when the venetian and turkish fleet met at tunis , though that very port ackowledges the ottoman emperor , but in regard they are in the nature of a free port to themselves , and those that come there , they would provide for the peace of the same , and interdicted any hostile attempt to be there made . but they of hamborough , were not so kind to the english , when the dutch fleet fell into their road , where rid at the same time some english merchants men ; whom they assaulted , took , burnt and spoil'd , for which action , and not preserving the peace of their port , they wereby the law of nations adjudg'd to answer the dammage ; and i think have pay'd most , or all of it since . but enemies in their own ports , may be assaulted , burnt or destroy'd , by the law of armes . xi . if the ships of any nation happens to arrive in any of the king of englands ports , and afterwards and before their departure , a war breaks out , they may be secured , priviledged without harm of body or goods ; but under this limitation , till it be known to the king , how that prince or republique of those , whose subjects the parties are , have used and treated those of our nation in their ports . but if any should be so bold , as to visit our ports after a war is begun , they are to be dealt with as enemies . xii . by the laws of nations , generally all things are the captors , which he takes from his enemy , or which his enemies gain'd from another by force of arms ; so likewise all those goods , that he shall find in his enemies custody : but then it must be apparently manifest , and evidently prov'd , that it is really the enemys ; for if an english-man should have goods in the custody of a dutch factor at cales , and a war should break out between that prince and that republique , yet are not the goods of the english-man subject to the seizure of the spaniard , it being apparent , the owner is not a subject of their enemies : so likewise if the goods of friends are found in the ships of enemies , this does not ipso facto , subject the same to be prize by the laws of nations ; though it be a violent presumption , and may justly bear a legal examination , till which there may be a securing of the prize , till adjudication shall pass . so on the other hand , if the ships of friends shall be fraighted out to carry the goods of enemies , this may subject them to be prize , especially if the goods shall be laden aboard by the consent or privity of the master or skipper ; though in france they have subjected and involv'd the innocent with the nocent , and making both of them prize : in the late flemish wars with england , the ostenders became obsequious serviceable with their ships to the traffick and commerce of both nations : memorable was the action , when the war was between the two republiques , venice and genoa , the grecian ships being then imploy'd , ( as those of ostend ) were search'd , and the enemies pull'd out , but no other matter done ; however , it is most certain let the commission , or protection of such ships be what they will , if men will venture to trade under such a cloak , it behoves them , that the skipper and his crew be entirely ignorant ; for it is his action that will go far in the freeing , or making absolute the prize , and goods so made prize , the property is immediately gone and changed be the owner be who he will , he never can claim the same ; for the laws of nations made the enemies first masters by external dominion , and then by conquest , gave the property to the captor : following that judgement of the romans , whatsoever they got of their enemies by valour , they would transmit , to their posterity by right . xiii . 't is not against nature , to spoil the goods of him , whom it is lawful to kill ; and by the laws of nations , it is permitted that the goods of the enemies may be as well spoiled as taken ; and polybius observes that all things of the enemies may be spoiled , their ships , goods , forts , &c. xiv . and though it may happen sometimes , that a war may break out , and there may be no public denouncing or proclaiming the same ; that if a friend , or neuter should assist an enemy with contraband goods , that is armes , &c. whether upon such a caption , the goods may be made prize ; the resolution of which will depend on these considerations . first , by natural law , where either force offer'd , is repelled , or punishment exacted , of one that hath offended ; there needs no denunciation , for princes are not to stand debating with words or arguments , being injured beyond words : for war undertaken to resist violence , is proclaim'd not by an herauld , but by nature : for it is no more then the invading of one for another , or taking of the goods of the debtor , to answer the creditor damage . secondly , interpellation is introduced by the laws of nations , whereby princes or republiques , having received injuries , may apparently shew that they had no other way to recover their own , or that which is due to them : for such interpellation following after injuries committed , constitutes that prince or state in a fault that shall not render satisfaction . thirdly ; admitting that interpellation hath gone , and satisfaction hath been required for the dammage , and no satisfactory return hath been made , whether then the ships or territories of the enemy may be assaulted : and for that it has been conceiv'd they may , for denunciation is no more but to signify that the parties , against whom the same is commenc't , are unjust , and will not do right , and therefore war is begun by the supream power : now princes or republiques , having done that which by the law of nature they were not oblig'd to do , that is after a wrong done , abstain'd from war by friendly demanding of satisfaction or reparation , ( which is requir'd only by the laws of nations ) and publique justice being deny'd them , there remains no other or further obligation on the state , the same amounting and indeed is an apparent defiance ; and proclamation is no other . so that if indiction is not necessary , the caption of such ships may subject them to be prize , ( perhaps the leagues of the several countries , may have provided for cases of the like nature . ) xv. and although the goods of friends , according to the circumstance of the case , may be preserv'd by adjudication , and restor'd to their owner ; yet all manner of goods have not that priviledge , for though the freedom of trade preserves the goods of friends against the rigour of war , yet it does not those goods that supplies the enemy for war , as mony , victuals , ships , armes and other things belonging thereto , for to supply an enemy that invades our right , or seeks the destruction of our countries , is a liberality not to be allow'd of , and it certainly stands with necessity , that if i cannot safely defend my self , or endamage my enemy without intercepting the things sent , it may justly be done : but when such goods are seized , whether they give the captor a right of property , or a right by retention , to compel that neuter nation to give caution for the future , by hostages or pledges , not to supply the enemy , may be a question . the romans , who had brought victuals to the enemies of carthage , were taken by the carthaginians , and again rendred upon request ; the hollanders in the heat of the war between the sweden and polland , never suffer'd themselves to be interdicted with either nation ; the same state when they had war with spain , they intercepted the french ships , passing to or for spain , but restor'd them . and pompey , in the history of the mitridatie war , set a guard on the bosphorus , to observe if any merchant sailed in thither ; whosoever did , and was taken , was surely put to death ; so demetrius when he possessed attica with his army , having blockt up athens , hang'd up both the master and commander of a ship , who attempted to bring in corn : the hollanders having blockt up dunkirk , some english merchants ships did attempt to enter , but were deny'd by the hollanders . most certain , if a neuter nation hath had notice of the war , and caution given them ( as is usual ) not to supply the enemy with counterband goods , as they call them ; if such be the case , the prize is become absolute the captors : so queen elizabeth did , when she seized on the sail of the hansiatique towns , who were carrying of goods , ropas contrabanda , to the spaniard her enemy ; she condemned them , and made them absolute prize ; for as neuters are not compellable by the rigour of war , to give any thing against their will , so must they not against the will of each party afford such things , as may dammage one another ; for persons or nations having had notice of the war , which is done , and caution given sometimes by proclamation , or some other publick edict , signifying the right of their cause ; shall afterwards gather to , and assist the enemy , whether associates , neuters , or subjects , the same yeilds a right , so far as to them , not only to the charge and dammage that may fall thereby , by making them prize ; but may make them obnoxious to punishment ; for it is the duty of those that abstain from war to do nothing for the strengthning of him , who maintains a bad cause , whereby the motions of him that wageth a just war may be retarded , and where the cause is doubtful , they ought to shew themselves equall to both , permitting passage , baking , dressing , and affording provision for each army , or navy . l. aemilius praetor , accused the tejans for victualling the enemy's navy , promising them wine , adding , that unless they would do the like for the navy of the romans , he would account them as enemies : but common experience hath taught nations and kingdoms , when they declare a neutrality , to make provision by way of league with both the nations at war , that when it should happen the armies of both , or any draw towards their territories , it might be lawful for them to exhibite the common offices of humanity to both . the venetians having so far prevail'd against the turk , in the island of candia , that they held the city of canea , straightly besieg'd by sea and land , whereby they had reduc'd it to great extremities , it happened at that time to ride about stout merchant men , in the port at smirna ; the general of the venetians being jealous of their joyning with the turkish armado , desired to know their minds , who answer'd , they would prove neuter in the dispute ; but afterwards ( though at first the captains all refused ) upon the threatning of the grand-seignior , to lay an embargoe on all the goods of the english nation in his dominion , and to make slaves of their persons ; those captains were forced to joyn with the turkish forces , who beat the venetians from before canea , and so reliev'd it ; the venetians embassador complain'd to the then powers in england , but could have no relief , being answer'd , that those ships in the turks power , were subject to it . chap. ii. of letters of marque , and reprizal : i. of reprizals generally considered , and for what . ii. that reprizals are unlawful by the laws of nature and the romans . iii. that the same by the laws of nations , are now become lawful . iv. the advantage that accrues by the same . v. the causes that requires the same . vi. of the things necessarily requisite for the observing them . vii . reprizals ordinary and extraordinary , according to the laws of england . viii . of the interest of princes of granting them , and letters of request ix . the difference of injustice offer'd to subjects and forraigners ; when and where the one is concluded , and not the other . x. what is meant by denying of right , and doing of injustice , and where reprizals take rooting , and where not . xi . of reprizals awarded in cases ordinary . xii . of reprizals issuing forth in cases extraordinary . xiii . of letters of request precedent , allotting a time certain for satisfaction . xiv . domicil not origination subject to reprize . xv. reprizal not granted if the spoil was occasioned by war. xvi . of persons exempt from reprizal by the laws of nations , canon and civil law. xvii . where ships or goods are subject to reprize , and where not . xviii . when right deny'd , whether life is engag'd , and whether persons refusing to yeild may be slain . xix . goods taken by reprize , where the property is altered , and where otherwise . xx. where many ships are present , and one becomes captor , whether the spoil must be divided or remain his , that became master . xxi . of the captors duties af●…ter a prize taken , and its exemption from custom . xxii . restitution , when to be made , after the debt satisfy'd . xxiii . contribution , whether it can be by the laws of england to him whose goods are taken by reprize . xxiv . commissions awarded for the enquiring of depredations , under which the parties may probaably obtain recompence . i. reprizals known to us by the word of represalie , or leters of marque , in law have other appellations , as pignoratio , clarigatio and androlepsia , &c. in imitation of that androlepsia , among the greeks , to seize the three next citizens of that place , whether the murderer had fled , and was always given to him who required revenge of the offender ; the word ( reprisals ) is from the french reprendre and reprise , i. e. resumptio , that is to re-take or take again one thing for another , like our saxon withernam . though the art is now become lawful by the law ( indeed the consent ) of nations , yet it must have its standard mark , for the same cannot be done by any private authority , but only by the power of that prince or republique , whose subject the injur'd person is , nor is the same grantable by authority ; but where the party injur'd has justice deny'd him , or the same illegally delay'd . ii. by the law of nature , no man is bound for anothers act , but only the successor of his estate , for that goods and estate should pass with their burdens , was introduc'd together with the dominion of things ; hence it is that the son cannot be molested for the debt of his father , † neither the wife for the debt of the husband , nor the husband for the debt of the wife ; the same being against natural equity , that one should be troubled for the debt of another . so it is , that no particular men ow not , or are oblig'd for the debt which the community ows , that is if the community have any goods ; but if mony be lent to a community , each particular is naturally bound , as they are a part of the whole , if the stock publique be wanting : if one lends my country money ( says seneca ) i will not call my self his debtor , yet will i pay my share : and again , being one of the people , i will not pay as for my self , but contribute as for my countrey : naturally , nay , by the very roman law , * one village was not bound for the other , nor one mans possessions charged for another ; no not so much as with the debts publique : the reason being added , that it was against reason for one to be charged with the debt of another . iii. and though by the law of nature , one mans goods are not ty'd for the debts of another , no nor for those of the publique ; yet by the voluntary law of nations , the same might be introduced and brought in , and the same may stand well with the laws of nature ; for that might be introduced by custom and tacit consent , when even sureties without any cause , may subject and make lyable their goods and estates for the debts of a stranger . so likewise , that for any debt , which any civil society , or the head thereof ought to make good , or because the soveraign or a head hath not done right in anothers debt , but hath made himself lyable to render satisfaction ; such a society may oblige and make lyable all their goods corporeal or incorporeal , for the reddition of satisfaction . hence it was , as the great justinian observes , that this custom was constituted by the nations , grounded on the urgency of humane needs , asserted with the greatest of necessities : since without this , great licence would be given and tolerated , for the committing of depradations and injuries ; especially if only the goods of rulers were made lyable , who seldom possess any thing , that for satisfaction , the injured may easily come by , whereas those private men , whose commerce are various , may be catcht for recompence , sometimes with the greatest of ease , and freest from danger . besides , the owners of such prize , being members of the same society , might more easily obtain mutual right , for satisfaction of the injur'd , and their own future indempnity then forraigners could , who without such a tye , would be very little regarded . iv. the benefit which this custom of obligation hath now introduced , is become universal , and common to all nations ; so that people that are at one time griev'd with this burden , at another time might be eased of the same , and by such taking , the oppressed might the more easily obtain justice , & war be prevented . the carthagineans would not suffer ariston the tyrian to be taken ; for said they , the same will befall the carthagineans at tyre , and in other towns of trade , whereto they resort . v. a due administration of justice , is not the least sense , wherein princes are styled gods : to deny or delay justice , is injustice ; justice is every mans right , who hath not forfeited what he might claim by the jus gentium . if therefore the party cannot obtain his definitive sentence or judgement , within a fit time against the person of whom he complains , or if here be a judgement given against apparent right and law ; yet if no relief can be had , the bodies or movables of his subjects , who renders not right , may be taken . vi. in the prosecution of which there must be , . the oath of the party injur'd , or other sufficient proof , touching the pretended injury , and of the certain loss and dammage thereby sustain'd . . a proof of the due prosecution for the obtaining a satisfaction in a legal way . . protelation or denyal of justice . . a complaint to his own prince or state. . requisition of justice by him or them , made to the supream head or state , where justice in the ordinary course was deny'd . . presistency still , in the denyal of justice : all which being done , letters of reprisal under such cautions , restrictions , and limitations , as are consonant to law , and as the special case may require , may issue not only by the jus gentium , and civile , but by the antient and municipal laws of this kindom . † vii . the reprisals grantable by the laws of england , are of two sorts , ordinary and extraordinary . the ordinary are , where any english merchants or their goods are spoiled , or taken from them , in parts beyond the sea by merchants strangers , and cannot upon suit or the kings demanding of justice for him , obtain the same , he shall have upon testimony of such prosecution , a writ out of the chancery , to arrest the merchants strangers , of that nation their goods here in england ; the which is grantable the subject opprest of common right , by the chancellor or keeper of england , who always in such case hath the approbation of the king or councel , or both , for his so doing . the extraordinary are by letters of marque , for reparation at sea , or any place out of the realm , grantable by the secretaries of state , with the like approbation of the king or councel , or both . viii . and as princes by the laws of nations , are responsible for injuries publique , so should they by the most prudent ways imaginable , prevent those that are private , not suffering forraigners , if possible , to receive wrongs in their countries : for , as the florentine observes , if a man be exceedingly offended , either by the publique , or by any other private hand , in a forraign nation , and cannot obtain reparation according to justice , he will never leave blowing the coals , or cease promoting the injury , till the flame break out in war ; in which he cares not if he sees the ruin of that kingdom or state , where he receiv'd his wrongs . nor should the prince or state of the person injur'd , value his misfortune at so low a rate , as to deny him letters of request ; for that were to heap up injury upon injury , but likewise if justice be deny'd after such request , to arm him with power to take satisfaction by reprise , vi manu & militari . generally there always preceeds letters of request , or , more or less ; and according to the satisfaction , sufficient or insufficient , returned in answer to the same , commissions are awarded . ix . subjects cannot by force hinder the execution , even of an unjust judgement , nor lawfully pursue their right by force , by reason of the efficacy of the power over them : but forraigners have a right to compel , which yet they cannot use lawfully , so long as they may obtain satisfaction by judgement . but if that ceases , then reprisal is let in . now judgement is obtained either in the ordinary course , by way of prosecution , or suit , or appeal from the same , after sentence , or judgement given to a higher court ; or else in the extraordinary way , which is by way of supplication , or petition to the supream power : but we must understand that to be , when the matter in controversie is , tam quod merita qu●…m quod modum praecedendi ; not doubtful , for in doubtful matters the presumption is ever for the judge , or court. but the reprisal must be grounded on a wrong judgement , given in matters not doubtful , which might have been redressed one way or other ; either by the ordinary or extraordinary power of the country or place ; and the which was apparently perverted , or deny'd . but if the matter be doubtful , then otherwise ; for in causes dubious or difficult , there is a presumption always that justice was truly administred by them , who were duely elected to publick judgements . xi . and yet in this later case , some * who are of opinion , that if the cause were dubious , and if the judgement were against apparent right , the stranger oppressed , is let into his satisfaction ; and the reason is because the judge's authority is not the same over forraigners , as over subjects , for the reason above mentioned . if an english merchant shall prosecute a suit in the ordinary courts of law beyond seas , and sentence or judgement shall pass against him , from which he appeals to the supream judgement , and there the first judgement or sentence is affirmed , though the complainant hath received a judgement against the real right of the cause , yet this will be no cause for letters of reprisal , though perhaps it may occasion letters of request ( if there be strong circumstances for the same ) to have a rehearing of the cause . but if an english man shall recover a debt there , and then the officer , having the debtor in custody , will wilfully let the prisoner escape , and then become insolvent ; the same may perhaps occasion reprisal . in england , if a forraigner brings an action personal against i s. and the matter is found special , or general , and the party prays judgement , and the court refuses it ; and then the deffendant dyes , and with him the action , ( the nature of it being such ) the party is here without remedy , the same may occasion letters of reprisals , if it be accompained with those circumstances , that evince an apparent denyal of justice , i. e. as putting it off from term to term , without cause . an english man pursues his right in the legal courts beyond seas ; and the military governor opposes the prosecution , and by force conveys away the debtor and his goods , the sentence or judgement is obtained , its ultimate end being execution , being thus frustrated , may occasion letters of reprisal . xii . persons murdered , spoiled , or otherwise dampnify'd in hostile manner , in the territories or places belonging to that king , to whom letters of request are issued forth , if no satisfaction be returned , letters of reprisal may issue forth ; and the parties petitioners are not in such cases compelled to ressort to the ordinary prosecution : but the prince of that country , against whom the same are awarded , must repair the damage out of his or their estates , who committed the injuries ; and if that proves deficient , it must then fall as a common debt on his country . xiii . such letters of request generally allot a time * certain for damages , to be repaired , if not reprisals to issue forth . xiv . it is not the place of any mans nativity , but his domicil ; not of his origination , but of his habitation , that ●…bjects him to reprise : the law doth not consider so much where he was born , as where he lives , not so much where he came into the world , as where he improves the world. if therefore letters of reprisal should be awarded against the subjects of the duke of florence , and a native of florence , but denizied or naturalized in england , should have a ship on a voyage for leighorn , if a caption should be made , the same is not lawful , nor can the same be made prise . xv. nor doth it any where appear , that reprisals can be granted on misfortunes happenning to persons or their goods , residing or being in forraign parts in time of war there ; for if any misfortune happens , or is occasioned to their effects , or to their persons , then they must be contented to sit down under the losse ; it being their own faults , they would not fly or relinquish the place , when they fore-saw the country was subject to the spoil of the souldiers , and devastation of the conqueror . the factions of the guelfs and gibellins in florence , warring against each other . the guelfs obtaining the victory , and thrusting the gibellins out of it , after they had taken the city . domum cujusdam hugonis de papi in hoc regno angliae demorantae diruerunt , and plundred his goods therein , qui hugo supplicavit dom. regi , ut inde itali mercatores ( of that faction and city then in england ) emendas hic sibi facerent ; upon which adjudicatum fuit ; quod dicti mercatores , dicto hugoni satisfaciant pro damnis susceptis , & destructione domus suae : upon which a writ of error was brought , and the judgement was reversed , in these words ; quod non est consuetudo angliae de aliqua transgressione facta in aliena regione , tempore guerrae , vel alio modo , consideratum est , quod totus processus & ejus effectus provocentur , &c. xvi by right ( for so it is now called of rendring like for like ) there are many persons exempted , and those whose persons are so priviledged , have also protection for their goods , some by the laws of nations , some by the civil law , others by the common law ; among which embassadors by the laws of nations , their retinue and goods are exempt , coming from him , who awarded the reprise , the laws of nations not only providing for the dignity of him that sends , but likewise the security going and coming of him that is sent . nor against those that travel for religion , nor on students , schollars , or their books ; nor on women or children , by the civil law : nor those that travel through a country , staying but a little while there . by the canon law , ecclesiastical persons are expresly exempt from reprisals . a merchant of another place then that against which reprisals are granted , albeit the factor of such goods were of that place , are not subject to reprisals . xvii . ships driven into port by storm or stress of weather , have an exemption from the law of reprisals , according to the jus commune ; but by the law of england otherwise , unless expresly provided for in the writ , or commission . but if such ship flyes from his own country to avoid confiscation , or some other fault , and is driven in by stress off , she may then become subject to be prize . but it is not lawful to make seizure in any ports , but in his who awarded the reprisal , or his against whom the same issued ; for the ports of other princes or states , the peace of them are to be maintained . xviii . * ships attaqued by those that have letters of reprise , and refused to be yielded up , may be assaulted , and entered ; and though it may fall out not by intention , but by accident , that some of those that so resist , may happen to be slain , yet the fault will lie at their own doors , for hindering the execution of right , and that which the law most justly approves of . xix . this right of changing of dominion , is so odious , that in the taking of goods , if by any possibility the right owners may have restitution , the same has been done ; and though a larger then hours may happen between the capture and recapture , and so may pernoctare with the captor ; yet restitution may be made . and therefore if he , who hath letters of mark or reprisal , takes the ships and goods of that nation , against whom the same are awarded , and brings the same into a neuter nation , the owners may there seize her , or there the admiral may make restitution by law ; as well the ship 's goods to the owners , as the persons captives to their former liberty ; for that the same ought first to have been brought infra praesidia of that prince or state , by whose subjects the same was taken . and wth this agrees the common law ; for a dunkirker having taken a french vessel , sold the same at weymouth , whether it had been driven before it was brought infra praesidia dom. regis hisp. it was in such case rul'd , that if a ship be taken by piracy , or letters of mark and reprisal , and is not brought infra praesidia of that prince or state , by whose subject the same was taken , the same could not become lawful prise , nor were the owners by such a caption divested of their property . but if the caption be ships of war , the property will be immediately in the captors , and never divested , unless afterwards vis manu & forti , be in battle regained . xx. upon the sharing the spoil of the captivated ships , regard is had to the ships present , not the captors only ; for his reward must be the encouragement of his prince , like the roman coronas , of which there were various , according to the atchievement of the conqueror , in imitation of which our soveraign in his royal encouraging medals , follows the example , to his deserving commanders , as so many ensigns to enflame noble souls to the performing acts of glory and renown . i say the profits of prises are to be equally divided amongst the ships present , and not solely to the captor ; for if letters of reprisal are granted to two ships , and they happen both of them at sea to meet a prise , and the one attaques and enters her , by means of which she becomes absolute the conquerors ; yet the other hath right to an equal distribution with the captor , both in ship and goods , although he did nothing in the conquest : the reason is , for although he mist the opportunity of taking her , yet the presence of his vessel armed and prepared for battle , at the time of taking , became a terrour to the ship that was so conquered : and by the law presumed siue ejus , that the other ship would not or could be so taken , which law hath passed the current , and approbation of the common law , as reasonable , just and equitable , and may be pretended or surmised to entitle the party captor , to the making restitution of a moyety to his companion then present . but if it should so happen , that those to whom letters of mark are granted , should instead of taking the ships and goods of that nation , against whom the same were awarded , take or spoil the goods of another nation in amity , this would amount to a down-right piracy . and the persons offenders should for such fault create a forfeiture of their vessel , and the owners must be for ever concluded by the same , notwithstanding such commission . xxi . therefore , letters of mark or reprisal issue not without good and sufficient caution , first given for the due observance thereof , according to law ; the transgression of which creates a forfeiture of the same . and therefore , having taken a prise , and brought the same intra praesidia , the captor must exhibite all the ship papers , and captived marriners to be examined in order to adjudication , till when , bulck ought not to be broken without commission , nor may the captain of the captor suffer an imbezlement of the lading , or sell barter or dispose of any part , without commission ; for the king hath a proportion in all prises . such goods so brought in , are not subject to pay customs . xxii . by the law of nations , ipso facto , the dominion of the things taken by those to whom letters of mark are granted , become the captors , till the debt and costs , that is the original dammage and subsequent charges are satisfied ; which being done , the residue ought to be restored : so the venetians used their equity , having taken the ships of genoa , did not spoil any of the lading , but preserved the same very carefully , till the debt being pay'd ; which done , restitution was made of the things entirely , without diminution . xxiii . when for the fault perhaps of a few , a debt becomes national , by reason of which the goods of the innocent become lyable ( if taken for satisfaction ) whether by the law of england , the party ought to have contribution , most certain by the common law , where more are bound to one thing ; and yet one is put to the whole burden , the party may have process called contributione facienda , for his releif : but when a debt becomes universal or national , it seems otherwise , for if one lends my country mony , i will not call my self debtor , yet i will pay my share : * so it may seem equitable by the laws of charity , though not compellable by the laws of the land. xxiv . yet when depradations have happened to forraign merchants , and complaint hath been made , the kings of england have often issued forth commissions to enquire of the same : and so it was done upon the petition of some merchants of genoa , who complain'd against the inhabitants of the isle of garnsey , for a depradation , in taking away and detaining their merchandize and goods , to the value of many thousands of pounds , out of a ship wracked by tempest near that isle , by which the commissioners were impowr'd to punish the offenders , and to make restitution satisfaction for the dammages . the like complaint was made by the merchants of the duke of britain , of certain depradations committed by the subjects of the king of england , who issued forth the like commission , and to give them reparation and damages for the same ; so that if the subjects of the king of england have had their goods by way of reprise for the satisfaction of such debt or dammage , they may have the benefit of the like commissions , to lick themselves whole out of the estates of the offenders . chap. iii. of privateers or capers . i. of privateers , whether allowable by the laws of nature . ii of permission of such by the laws of nations . iii. the occasion of their first institution . iv. whether it be lawful to undertake such an employment . v. of commissions generall to endamage an enemy . vi. of commissions special and to privateers , and the immunities they claim by the same . vii . of the care that obliged on the issuing forth such commissisions . viii . of provisions made as in reference to their regulating , and especially the last treaty marine between england and holland . ix . of goods subject to prise , how considered in reference to adjudication general . x. of the goods considered in reference to adjudication , on occasions special . xi . of the lading made prise , whether it draws in a forfeiture of the vessel , and where otherwise . xii . whether ships refusing to yeild up to such , life is engaged . xiii . privateers where subject to punishment , and their actions occasion a forfeiture of their vessel . xiv . of things not subject to spoil . xv. considerations general on privateers . . naturally every one may vindicate his own right , therefore were our hands given us : but to profit another in what we can , is not only lawful , but commendable ; since nothing is more servicerble to man , then man : now there are divers obligations between men , which engage them to mutual aid ; for kinsmen assemble and bring help , and neighbors are call'd upon , and fellow citizens ; for it behoves every one either to take armes for himself , if he hath receiv'd injury , or for his kindred , or for his benefactors , or to help his fellows , if they be wrong'd : and solon taught , that common-wealths would be happy , wherein every one would think anothers injuries to be his own . but when war is denounc't , it matters not what obligations are wanting , it is enough the nation is injur'd in general ; for in that every individual is wrong'd , and all participate in the indignities and public damages of his country ; to revenge or prevent which , is the duty of every member of the same . ii. since therefore it is not against the law of nature to spoil him , whom it is lawful to kill , no wonder that the laws of nations permitted the goods and ships of enemies to be spoiled , when it suffered their persons to be slain . iii. the approbation of which in the wars of later ages , hath given occasion to princes to issue forth commissions to endamage the enemy in their commerce , and to prevent such supplyes as might strengthen or lengthen out war , to persons to whom the prise or caption become absolute the captors , and that to prevent the spare of ships of force to be absent from their respectives squadrons or fleets . by those of holland were termed capers , by the spaniard they had their denomination , from their respective parts , as ostenders , dunkirkers , and the like , in england call'd privateers ; how far the actions of those as in relation to the attacking and killing of the enemy , or spoiling of their ships and goods are lawful , not being commanded nor hired thereto , may be some question . iv. by the laws of nations ( as hath been said ) it is lawful for every subject of that nation in war , to seize upon the enemies goods and ships , as also to kill them ; for they are after war denounc't by law , lookt upon as of no account , and if respect be had to natural and internal right , it seems granted to every one in a just war , to do those things , which he is confident within the just measure of warring , be advantageous to the innocent party ; but though there may be such authority given , yet what tittle can they claim or appropriate to themselves of the ships or goods of enemies ( for surely there is nothing owing to such , nor are they lawfully call'd to the same : ) unless they can shrowd themselves under the protection of what they do , is only to exact punishment from the enemy , by the common right of men. v. commissions to kill or spoil the enemy , are in two respects ; either general or special : general as in a tumult ; among the romans , the consul said , whosoever would have the common-wealth safe , let him follow me ; and to all particular subjects is sometimes granted a right of killing in self-defence , when it is publickly expedient , as on a sudden occasion , and the like . vi. special commissions , be such as are granted to those that take pay , and are under orders ; the not obeying of which may be punished with death , though the act succeeds well . others to repair a particular dammage by way of reprise , the original dammage being turn'd into a national debt , but that satisfy'd the other determines , or else to those who receive no pay , but go to war at their own charge ; and that which is more , administer at their own ▪ costs a part of the war , by providing ships of force , and all other military provisions to endammage the enemy or their confederates , the which are termed privateers , &c. as above , to whom instead of pay is granted leave to keep what they can take from the enemy ; and though such licence is granted them , yet may they not convert of their own head to their private use those prises , before the same have been by law adjudged lawful to the captors , and the admiral had his share . vii . nor may such privateers artempt any thing against the laws of nations , as to assault or endammage an enemy in the port or heaven , under the protection of any prince or republick , be he friend , ally or neuter , for the peace of such places must be kept inviolably . sir kenelme digby having obtain'd a commission against the french , who being in the streights , was every where honoured as a cavalier whom the king of great britain favoured ; in his voyage he took some prises and coming to algier , redeemed several captives , whom he took aboard , and placed in the several vessels he had made prise of , the which he so effected , that in a short time he became illustrissimo of six ships of war ; coming to cape congare , ten leagues from scanderoone , and having sent a boat to descry the road , word being brought that there were in the road two venetian galeasses , with two other galeons , two english ships , and several french ships ; sir kenelme being satisfy'd of the prise , resolved to attaque them the next morning , although the admiral of the venetians having declared himself protector of the french , and that he would destroy all the english ships of war that he should meet , either in that republick or grand-seigniors seas . sir kenelme notwithstanding , resolv'd to engage them , and accordingly bore up to them , and the venetian general weighed anchor to meet him ; sir kenelme before he fired , sent a satty , to inform the venetian of his quality , and of his commission , being only to endeavour to make prise of the french , and giving him all the assurance possible of his friendship and respect to the republique ; but before the satty was answer'd , the engagement was begun by the english , french and venetian : this action of sir kenelme digby , was question'd by the turk ; for that hostility had been committed by the english in the grand-seignior road , and thereupon the bassa of alleppo , and cady of scanderoone , made an avenia or embargoe on the english merchants , till reparation was made , for the breaking the peace of the port. viii . in the granting of such private commissions , there is alwaies great care to be had and taken by caution , to preserve the leagues of our allies , neuters and friends , according to their various and several treaties ; and therefore at this day by the late treaty between his majesty and the states of holland at london , before any privateer or caper can receive commission , the commander is oblidged to enter before a competent judge , good and sufficient security by able and responsible men , who have no part or interest in such ship , in l. sterling , or gilders ; and when they have above one hundred and fifty men , then in l. or gilders , that they will give full satisfaction for any dammage or injuries , which they shall commit in their courses at sea contrary to that treaty , or any other treaty made between his majesty and that state , and upon pain of revocation and annullity of their commissions , and for answering of such dammage or injuries , as they shall do , the ship is made lyable . ix . if a suit be commenced between the captor of a prise and the claimer , and there is a sentence or a decree given for the party reclaiming ; such sentence or decree ( upon security given ) shall be put in execution , not withstanding the appeal made by him that took the prise , which shall not be observed in case the sentence shall be given against the claimers ; if torture , cruelty or barbarous usage happens after a caption to be done to the persons taken in the prise , the same shall ipso facto discharge such a prise , although she was lawful , and the captains shall loose their commissions , and both they and the offenders be subjected to punishment . x. such sort of instruments having made a caption of ships bound for an enemy from nations neuter , or in amity with both the warring states ; the lading in order to be made prise , is reduced to these several heads . first , those goods that are fit to be used in war , under which are included powder , shot , guns , pikes , swords , and all other instruments and provisions of armature fit to be used in the feild or at sea. the second , are those things that may be used in time of war and out of war , as money , corn , victuals , ships , and the like . and the last are those goods , that are only fit for luxury and pleasure . xi . the first are accounted prise without controversy ; he is to be accounted an enemy , that supplyes an enemy with things necessary for the war. the second is to be governed according to the state and condition of the war ; for if a prince cannot well defend himself , or endammage the enemy , without intercepting of such things , necessity will then give a right to the condemnation : and so queen elizabeth did the hansiatique fleet taken , laden with corn for lisbon , upon consideration of the state of the war , the same became prise . the last become free , according to that of seneea ; i will not help him to money to pay his guards ; but if he shall desire marbles and robes , such things hurt not others , only they minister to his luxury : souldiers and armes i will not supply him with ; if he shall seek for players and recreations to soften his fierceness , i will gladly 〈◊〉 to him : ships of war i would not send him , but such 〈◊〉 for pleasure and ostentation of princes sporting in the s●… , i will not deny . xii . if a privateer take a ship laden wholly with counterband goods , both ships and goods may be subjected , and made prise . but if part be prohibited goods , and the other part are not prohibited , but such as according to the necessity of the war shall be so deemed , the same may draw a consequential condemnation of ships , as well as lading . if part of the lading are prohibited , and the other part are meerly luxurious and for pleasure , only the goods prohibited become prise , and the ships and the remainder become free , and not subject to infection . xiii . if such ships shall be attaqued in order to an examination , and shall refuse , they may be assaulted , like a house supposed to have theeves or pyrats in it , refuses to yeild up their persons , may be broke up by the officer , and the persons resisters may be slain . xiv . but if any of these privateers wilfully commit any spoil , depradations or any other injuries , either on the ships of our friends or neuters , or on the ships or goods of our own subjects , they will notwithstanding they are not in pay , be subjected in some cases to death and other punishments , according to the demerits of their crimes , and perhaps may subject their vessel to forfeiture . and though by the law of nature the goods of enemies are to be spoiled as well as their persons slain , yet some goods and things seem exempted , and ought not to be spoiled , and therefore it is not lawful to land on the territories of our enemies to spoil places dedicated to god : though pomponius observes , when places are taken by the enemy , all things cease to be sacred , the reason given is , because the things which are call●…d sacred , yet are they not indeed exempted from humane uses , but are publique . the townsmen , saith tacitus , opening their gates , submitted themselves and all they had to the romanes , themselves , were spared , the town was fired , pompey entered the temple by the right of victory , not as a suppliant , but as a conqueror : and though that priviledge may seem right by the law of war to a soveraign , or a general , that intends a conquest , yet that power may not seem devolved to him , whose commission is cautionally to endammage the enemy only , as in reference to his commerce and provisions of enabling them to withstand the war : certainly , that conquest is poor , whose trophies and triumphs are made up with roofs , pillars , posts , pulpits and pews , and the spoil of agriculture . hence it is that at this day , the king of france in germany and holland , accepts of contributions , by which the cities and churches are not olny spared ; but even the country-men plough and sow as quietly as if there were no armies in their territories at all . xv. most certain , those sorts of capers or privateers , being instruments found out but of latter ages , and it s well known by whom it were well they were restrained by consent of all princes ; since all good men account them , but one remove from a pyrat who without any respect to the cause , or having any injury done them , or so much as hired for the service spoil men and goods , making even a trade and calling of it , a midst the calamities of a war. and driving a commerce and mart with the spoil , and that with as much peace and content , as if they had never heard of tears , blood , wounds or death , or any such thing : such to expose their lives against ships of the like kind , were both honourable and just , or those that should aid the enemy with goodsprohibited as afore , such prises were possessions most noble ; but the goods , ships and lives of the innocent peaceable traders to be exposed to rapine and spoil , renders them worse then the roman lictors , by how much 't is to kill without cause , heads men executing the guilty , they the guiltless . it was a high necessity that enforced the english to commissionate such , the number of her then enemies , covering the sea , like the aegyptian locusts ; it were well they were rejected by consent , or if allow'd off , not subject to quarter , when taken by ships of war : a trade that st. paul never heard of , when he said , who goeth to war at his own charge ? chap. iv. of pyracy . i. pyrats what ? ii. of the duty incumbent on princes and states , as in reference to such , and whether lyable for the dammages they commit . iii. pyrats where they hold a so ciety , how the is same esteemed in law , and of equality held by them . iv. where such may obtain the right of legation . v. ships where lyable for the redemption of the master , who remains as a pledge for the freedom of the ship and lading , and where not . vi. an oath given for the discharge of a ship from pyrats to pay them a summe , whether the same ought to be performed . vii . forraigners spoiled by english pyrats may , p●…rsue for justice , within the stat. of h. . viii . where the subjects of a forraign nation committing pyracy may be punished for the same . and , ix . pyracy committed by the subjects of a nation in enmity with the crown of england , whether the same is pyracy , or otherwise punishable . x. pyracy committed in the british seas , properly punishable by the crown of england , and not otherwise . xi . pyracy committed on the ocean where the pyrats may be executed by the laws of nature . xii . pyrats overcome in the attempt , where the captors may execute them without any tryall or judgement . xiii . pyrats attempting , to rob commit a murder , whether all are principal , or only the slayer , and the rest accessories . xiv . if the subjects of one forraign nation rob another , and bring the booty into england , whether the party injured may proceed criminaliter for punishment , and civiliter for restitution . xv. pyrat takes only men ; and no part of the lading , whether the same be pyracy . xvi . where a master may commit pyracy of those things that are committed to his charge , and where otherwise . xvii . where pyracy may be , though there be nothing taken ; and where goods are taken out of a ship , and no body in it . xviii . the captain and crew of a vessel , that have a commission of reprise commit pyracy , whether he that procured the same and imployed them , ought to answer the damage . xix . of goods taken and retaken by a friend , whether the property of the prise is altered . xx. of restitution made of goods taken and retaken from a pyrat , by the law maritime . xxi . of restitution frustrated by the common law. xxii . of pyracy as in reference to matterscriminal , and how punishable this day by the laws in england . xxiii . how the stat. of h. . operates , as in reference to pyracies . xxiv . whether depradation in ports within the realm . remains robbery at the common law , or pyracy by the law maritime . xxv . where benefit of clergy is allowable to pyrats , and where not ; and whether by the pardon of all selonies , pyracy is included . xxvi . whether attainder for pyracy works a corruption of blood , and forfieture of lands . xxvii . goods taken at sea and brought to land , the parties may be indicted upon the stat. of . h. . cap. . xxviii . where the admiralty claiming with an original or a concurrent jurisdiction , the common law will not intermeddle . xxix . how satisfaction of old was repaired to persons robbed , and how the offenders were punished . i. a pyrat is a sea thief , or hostis humani generis , who for to enrich himself , either by surprise or open force , sets upon merchants and others trading by sea , ever spoiling their lading , if by any possibility they can get the mastery , sometimes bereaving them of their lives , and sinking of their ships ; the actors wherein tully calls enemies to all , with whom neither faith nor oath is to be kept . ii. by the laws of nature princes and states are responsible for their neglect , if they do not provide ships of war and other remedies for the restraining of these sort of robbers ; but how far they are bound either by the civil law or common law of this kingdom , may be some question : for it is agreed they are not the cause of the unjust spoil that is committed by them , nor do they partake in any part ▪ of the plunder ; but if a prince or state should send forth ships of war or commissions for reprise , and those instead of taking prises from the enemy , turn pyrats , and spoil the subjects of other friends ; there has been some doubt , whether they ought not to make satisfaction to the parties injured , in case the offenders should prove unable : surely there is no more reason for this latter then the first ; for seeing princes and states may give all their subjects power to spoil the enemy ; nor is such a permission any cause why dammage was done to our friends , when even private men without any such permission , might send forth ships of war ; besides it is impossible that princes or states should foresee , whether they would prove such or not ; nor can it be avoided , but we must imploy such , otherwise no army or fleet could be prepared ; neither are kings to be accused if their souldiers or mariners wrong their confederates , contrary to their commands , though they are oblidged to punish and yeild up the offenders , and to see that legal reparation be made out of the estate of the pyrats : if letters of marque or reprizal be granted out to a merchant , and he furnishes out a ship with a captain and mariners , and they instead of taking the goods or ships of that nation against whom their commission is awarded , take the ship and goods of a friend , this is pyracy ; and if the ships arrive in * england , or in any other of his majesties dominions , the same shall be seized , and the owners for ever loose their vessel . † from hence it is , that princes and states are very cautious upon this we call jure belli privati , how they engage themselves , or those who seek reparation for wrongs before received ; for the person injured governs not the action , but devolves the power to some other hired for that particular use , whose law is no more then this , there is most right where is most pay or prize : unhappy state of man , whose support and living is maintained only by exposing himself to death , a calling that nothing can make it honest , but the highest necessity or pious charity . and therefore those that issue forth such sort of commissions , generally take caution for their returning within a convenient time , and not to wander in that unhappy condition . iii. though pyrats are called enemies , yet are they not properly so termed : for he is an enemy , saies cicero , who hath a common-wealth , a court , a treasury , consent and concord of citizens , and some way , if occasion be of peace and league ; and therefore a company of pyrats or freebooters are not a common-wealth , though perhaps they may keep a kind of equallity among themselves , without which no company is able to consist ; and though it is seldom they are without fault , yet hold society to maintain right , and they do right to others , if not in all things according to the law of nature ( which among many people is in part obliterated ) at least according to agreements made with many other nations ; or according to custom : so the greecks at what time it was accounted lawful to take spoil at sea , abstained from slaughter , and populations , and from stealing oxen that plowed , as the scholiast upon thucydides observes , and other nations living also upon the spoil when they were come home from sea , sent unto the owners to redeem ( if they pleased at an equal rate ) what they were robbed of at sea , and at this day if a ship hath the emperor of barbarys protection , the pyrats of that nation ( if they seize ) will restore , and if there be no protection , yet if taken within sight of their castles , the prize is not absolute ; but if resistance is made , and there be a caption , she then becomes the captors for ever ; as the price of blood . iv. pyrats and robbers that make not a society , i. e. such a society as the laws of nations accounts lawful , are not to have any succour by the law of nations . tiberius , when tacfarinas had sent legates to him , he was displeased that both a traytor and a pyrat should use the manner of an enemy , as tacitus hath it ; yet sometimes such men ( faith being given them , ) obtain the right of legation as the fugitives in the pyrenean forrest , and the banditi at naples , and solyman the magnificent , having entertained barbarossa the famous pyrat , sent word to the venetians , that they should use him and esteem him no more as a pyrat , but one of their own port. v. if a ship is assaulted by a pyrat , for redemption of which the master becomes a slave to the captors , by the law maritime the ship and lading are tacitly oblidged for his redemption , by a general contribution . but if a pyrat shall feign himself stronded , and to duccoy the merchant man for his releif , shall fire his guns , or wave his colours , who accordingly varies his course for his assistance , and the pyrat enters him , for redemption of which he becomes a slave to the pyrat , there contribution shall not be made , and if the ship loses any of her lading , the master shall answer the same . vi. a pyrat attacques a merchant man , and enters her , for redemption of which the master gives his oath , at a time and place to pay the pyrat a summe certain ; by some it hath been held , that the master commits not perjury , if the price promised for redemption be not brought according to the oath , because that a pyrat is not a determinate , but a common enemy of all , with whom neither faith nor oath is to be kept , but that is no reason for the assoiling of the vow : for though the person be deficient , yet the just god is concerned ; nor can that person that hath promised a thing , satisfy his conscience after he hath once delivered it to him , to recover it back again ; for the words in an oath , as to god , are to be understood most simply , and with effect ; and therefore he that returned secretly to the enemy , and again departed , made not good his oath concerning his return . vii . if an english man commit pyracy , be it upon the subject of any prince or republique in amity with the crown of england , they are within the purview of the stat. of h. and so it was held where one winterson , smith and others had robbed a ship of one maturine gantier , belonging to bourdeaux , and bound from thence with french wines for england , and that the same was felony by the law maritime , and the parties were convicted of the same . viii . and so it is if the subject of any other nation or kingdom , being in amity with the king of england , commit pyracy on the ships or goods of the english , the same is felony , and punishable by virtute of the stat. and so it was adjudged , where one careless captain of a french man of war of about tuns and divers others , did set upon four merchant men going from the port of bristoll to carmarthen , did rob them of about l. for which he and the rest were arraigned , and found guilty of the pyracy . but before the stat. of ed. . if the subjects of a forreign nation and some english had joyned together , and had committed pyracy , it had been treason in the english , and felony in the forreigners : and so it was said by shard , where a norman being commander of a ship , had together with some english committed robberies on the sea , being taken , were arraigned and found guilty ; the norman of felony , and the english of treason , who accordingly were drawn and hang'd . but now at this day they both receive judgement as felons , by the laws maritime . ix . if the subjects in enemity with the crown of england be sailers aboard an english pyrat with other english , and then a robbery is committed by them , and afterwards are taken , it is felony without controversy in the english , but not in the strangers ; for they cannot be tryed by virtue of the commission upon the statut , for it was no pyracy in them , but the deprdeation of an enemy , for which they shall receive a tryal by martial law , and judgement accordingly . x. pyracy committed by the subjects of the french king or of any other prince or republique , in amity with the crown of england upon the british seas , are punishable properly by the crown of england only , for the kings of the same have istud regimen dominium exclusive , of the kings of france , and all other princes and states whatsoever . xi . if pyracy be committed on the ocean , and the pyrats in the attempt there happen to be overcome , the captors are not oblidged to bring them to any port , but may exoppose them immediately to punishment , by hanging them up at the main yard end before a departure ; for the old natural liberty remains in places where are no judgements . and therefore at this day , if a ship shall be in on a voyage to the west-indies , or on a discovery of those parts of the unknown world , and in her way be assaulted by a pyrat , but in the attempt overcomes the pyrat , by the laws maritime the vessel is become the captors ; and they may execute such beasts of prey immediately , withhout any solemnity of condemnation . xii . so likewise , if a ship shall be assaulted by pyrats , and in the attempt the pyrats shall be overcome , if the captors bring them to the next port , and the judge openly rejects the tryal , or the captors cannot wait for the judge without certain peril and losse , justice may be done upon them by the law of nature , and the same may be there executed by the captors . cajus caesar being but a private man , pursued the pyrats , by whom he formerly had been taken and spoiled by them , and making up to them with such a fleet as he possible in haste could get ready , attaqued , burnt and destroyed their ships , and the men he brought back to an anchor , where repairing to the proconsul , to do justice , who neglecting , himself returned back , and there hang'd them up . xiii . if a pyrat at sea assault a ship , but by force is prevented entering her , and in the attempt the pyrat happens to slay a person in the other ship , they are all principalls in such a murder , if the common law hath jurisdiction of the cause : but by the law maritime , if the parties are known , they who gave the wound only shall be principalls , and the rest accessories ; and where they have cognizance of the principal , the courts at common law will send them their accessory , if he comes before them . xiv . if a spaniard robs a french man on the high sea , both their princes being then in amity , and they likewise with the king of england , and the ship is brought into the ports of the king of england , the french man may proceed criminaliter against the spaniard to punish him , and civiliter to have restitution of his vessel : but if the vessel is carryed intra praesidia † of that prince , by whose subject the same was taken , there can be no proceeding civiliter , and doubted if criminaliter ; but the french man * must resort into the captor or pyrats own country , or where he carried the ships , and there proceed . a dutch man , but naturalized by the duke of savoy , and living at villa franca in his dominions , procures a commission from the states of holland , and coming to leighorn , there rid with the colours and ensigns of the duke of savoy , the ship dyamond being then in port , and having received her lading , was afterwards in her voyage home surprised by that caper , and brought into villa franca , and there condemned and sold to one poleman ; which ship afterwards coming for england , the plaintiffs having notice , made a seizure , and upon tryal adjudication passed for the plaintiffs , the original proprietors : for though the ship of war and the captors were of savoy , and carryed thither ; yet being taken by virtue of a dutch comission , by the law maritime , she must be carryed infra praesidia of that prince or state by virtue of whose commission she was taken . nor can such carrying of the ensignes or coulors , of the duke of savoy , who was then in amity with the crown of england , or the commander , though a subject of that prince , make him a pyrat , or subject them or those to whom they have transferred their interest of the prize any waies to be questioned for the same criminaliter ; for that the original quoad as to the taking was lawful , a as one enemy might take from another ; but civiliter the same , for that the captor had not entitled himself to a firme possession . b and therfore in all cases where a ship is by letters of marque or pyracy , c if the same is not carry'd infra praesidia of that prince or state , by whose subject the same was taken , the owners are not divested of their property , but may re-seize wheresoever they meet with their vessels . xv. if a pyrat attaques a ship , and only takes away some of the men , in order to the selling them for slaves , this is a pyracy by the law maritime ; but if a man takes away a villaine or warde , or any other subject , and sells them for slaves ; yet this no robbery by the common law. xvi . if a bale or pack of merchandise be delivered to a master to carry over sea to such a port , and he goeth away with the whole pack or bale to another port , and there sells and disposes of the same , * the same is no felony . but if he opens the bale or pack , and take any thing out , animo furandi , the same may amount to such a larceny , as he may be indicted in the admiralty , though it amounts not to a pyracy . yet if such a master of ship shall carry the lading to the port appointed , and after retakes the whole pack or bale back again , this may amount to a pyracy ; for he being in the nature of a common carrier , the delivery had taken its effect , and the privity of the balement is determined . xvii . if a pyrat shall attaque a ship , and the master for the redemption shall give his oath to pay a sum certaine ; though there be no taking , yet is the same pyracy , by the law maritime . if a ship shall ride at anchor , and the mariners shall be part in their ship-boat , and the rest on the shore , and none shall be in the ship , yet if a pyrat shall attaque her and rob her , the same is pyracy . xviii . a merchant procures letters of marque or reprise , and then delivers the commission to persons to endeavour a satisfaction ; if such persons commit pyracy , the vessel is forfeited without controversy : but the merchant is no waies lyable to make satisfaction ; for though the superior shall answer for the actions of his ministers or servants , yet that is introduced by the civil law ; but this question must be decided by the laws of nations , by virtue of which such commissions are awarded or granted ; the which does exempt any man to answer for the dammages of his servants , unless he fore-knew that they would commit such a pyracy or spoliation , or any way have abetted or consented to the same , which right may be forfeited , and the civil law let in to acquire satisfaction . but if a ship shall be at sea and in necessity , if she attaques another ship , and takes out some victuals , cables , ropes , anchors or sailes , ( especially if that other ship may spare them ) this is not pyracy ; but then the party must pay ready money for such things , or give a note or bill for the payment of the value , if on this side the straites of morocco , within four months , if beyond , within twelve months . xix . by the law maritime , if goods are taken by a pyrat , and afterwards the pyrat attaques another ship , but in the attempt is conquered , the prise becomes absolute the captor's , saving the account to be rendred to the admiral . and it is accounted in law a just caption of whatsoever may be got , or taken from such beasts of prey , be the same in their own or in their successors possession but then an account ought to be rendred to the admiral , who may ( if they happen to be the goods of the fellow subject of the captors , or of nations in amity with his own soveraign ) make restitution to the owner , the costs and charges , and what other things in equity shall be decreed to the captor , first considered and deducted . xx. by the status of edw. . cap. . if a merchant loose his goods at sea by pyracy , or tempest ( not being wrackt ) and they afterwards come to land ; if he can make proof they are his goods , they shall be restored to him in places guildable , by the king's officers ' and six men of the country ; and in other places by the lords there and their officers , and six men of the country . this law hath a very near relation to that of the romans , called de usu-captione , or the atinian law ; for atinius enacted , that the plea of prescription or long possession , should not avail in things that had been stoln , but the interest which the right owners had should remain perpetual ; the words of the law are these , quod surreptum est , ejus rei aeternitas auctoritas esset , where by auctoritas is meant jus dominii . xxi . yet by the common law of england , it has been held , that if a man commit pyracy upon the subjects of another prince or republique ( though in league with us ) and brings the goods into england , and sells them in a market overt ; the same shall bind , and the owners are for ever concluded , and if they should go about in the admiralty to question the property , in order to restitution , they will be prohibited . xxii . this offence was not punishable by the common law , as appears by the preamble of the stat. of . h. cap. . but the same was determined and judged by the admiral , after the course of the civil law ; but by force of the said act , the same is enquired of , heard and determined according to the course of the common law , as if the offence had been committed on land. xxiii . this act does not alter the offence , or make the offence felony ; but leaves the offence as it was before this act ; viz. felony only by the civil law , but giveth a mean of tryall by the common law , and inflecteth paines of death , as if they had been attainted of any felony done upon the land. the indictment must mention the same to be done upon the sea. a pardon of all felonies does not extend to this offence , but the same ought especially to be named . though there be a forfeiture of lands and goods , yet there is no corruption of blood. there can be no accessory of this offence , tryed by virtue of this statute ; but if there be an accessory upon the sea to a pyracy , he must be tryed by the civil law. the statute of h. . cap. . taketh not away this statute for treasons done upon the sea , clergy is not allowable to the party on the statute h. . vide . jac. in b. r. moore . placet . though a port is locus publicus uti pars oceani , yet it hath been resolved more then once that all ports , not only the town , but the water is infra corpus comitatus . if a pyrat enters into a port or haven of this kingdom , and a merchant being at anchor there , the pyrat assaults him and robs him , this is not pyracy , because the same is not done super eltum mare ; but this is a down-right robbery at the common law , for that the act is infra corpus comitatus , and was inquirable and punishable by the common law , before the statute of h. . cap. . xxv . so if such a pyracy be made in a creek or port , in such cases it has been conceived , that clergy is allowable upon the stat. of h. . but if it be done super altum mare , there no clergy is allowable : by the pardon of all felonies , at the common law , or by the statute law ; felony super altum mare is not pardoned ; for though the king may pardon this offence , yet being no felony in the eye of the law of this realm , but only by the civil law , the pardon of all felonies generally extends not to it ; for this is a special offence , and ought especially to be mentioned . xxvi . a man attainted by virtue of that statute , forfeits his lands and goods , yet there works no corruption of blood , by virtue of that attainder ; nor can there be any accessory of pyracy by the law of this realm : but if it falls out that there is an accessory upon the sea , such accessory may be punished by the civil law , before the lord admiral , but he cannot be punished by virtue of this act , because it extends not to accessories , nor makes the offence felony . xxvii . if one steals goods in one county , and brings them into another , the party may be indicted in either county ; but if one commits pyracy at sea , and brings the goods into a county in england , yet he cannot be indicted upon that statute , for that the originall taking was not felony , whereof the common law took conuzance . xxviii . if a man is taken on suspition of pyracy , and a bill is preferred against him , and the jury find ignoramus ; if the court of admiralty will not discharge him , the court of kings bench will grant a habeas corpus , and if there be good cause discharge him , or at least take bayle for him : but if the court suspects that the party is guilty , perhaps they may remand him ; and therefore in all cases , where the admiralty legally have an original or a concurrent jurisdiction , the courts above will be well informed before they will mdedle . if a man be in custody for pyracy , if any aids or assists him in his escape , though that matter is an offence at land , * yet the admiralty having jurisdiction to punish the principal , may have likewise power to punish such an offender , who is lookt upon quasi an accessory to the pyracy ; but to rescue a prisonner from an officer of theirs , they may examine the cause , but they cannot proceed criminally against the offender . xxix . † antiently when any merchants were robbed at sea , or spoiled of their goods , the king usually issued out commissions under the great-seal of england , to enenquire of such depradations and robberies , and to punish the parties ; and for fraudes in contracts , to give dammages to the parties , and proceed therein secundum legem & consuetudinem angliae , secundum legem mercatoriam , & legem maritimam ; all three laws included in the commissions . one marsh a fisherman being at sea , was taken by pyrats , and all which he had ; after that , the pyrats took another ship belonging to the dane , and the pyrats having rifled the ship , and taken the best of the goods of the danes , the pyrat put aboard the fisherman , and so suffered him to depart , who landing here , went immediately to dr. talbot , a civilian , and shewed him all this matter , and desiring his advice , who directed an inventory to be made of the danes goods in his ship ; the dane afterwards coming into england , and having intelligence of the matter , prosecutedthe fisherman in the admiralty ; and although ignoramus was found , yet they there detained him ; upon which a habeas corpus was prayed , but denyed by my lord coke chief justice , for no other reason but because the truth of the matter was opened , which gave the court cause to supect him of pyracy ; otherwise if he had moved barely upon the ignoramus found , quod nota pasch. jac. in b. r. the king vers . marsh bulstrod . part . fo . . chap. v. the right of the flagg , as to the acknowledging the dominion of the british seas . i. considerations general as in reference to the same . ii. whether princes may have an exclusive property in the sea. iii. that such an exclusive dominion may be , and proved . iv. of the sea , whether capable of division , as the land general . v. considerations general as in reference to maritime cities touching sea dominion . vi. of the sea , by reason of its instability , whether capable of subjection . vi. of the dominion of the british sea asserted long before , and ever since the conquest of this isle by the romanes . viii . the duty of the flagg , but a consecutive acknowledgement of that right , and of the ordinance of hastings declaring that customary obeysance . ix . considerations had on some treaties , in reference to the asserting the duty of the flagg . x. of the extent how far that duty is required and payable . xi . of the duty of the flagg , not a bare honourary salute , but a right . xiii . of the importance and value of the same as well in nations forraign , as in england . xiii . of the duty of the flagg not regarded as a civility , but commanded as a duty . xiv . of the importance of that acknowledgement . i. after the writings of the illustrious selden , certainly it 's impossible to find any prince or republique , or single person indued with reason or sence , that doubts the dominion of the british sea , to be intirely subject to that imperial diadem , or the duty or right of the flagg , which indeed is but a consecutive acknowledgment of that antient superiority : yet there has not been wanting some , who though they have not questioned the former , have highly disputed the latter . but there are some fatal periods amongst our northern regions , when the inhabitants do become so brutal and prejudicate , that no obligation of reason , prudence , conscience or religion-can prevail over their passions , especially if they become the devoted mercinaries of an implacable faction ; in opposition to all that can be called either just or honourable , we need not reap up the carriage of that late insolent son of a tallow chandler , whose deportments made him no less insupportable at home , then he was amongst forreign princes ; the testimonies of his greatest parts and abilities , being no other then monuments of his malice and hatred to this nation , and records of his own folly : but princes are not to be wrangled out of their antient rights and regalities by the subtil argument of wit and sophistry ; nor are they to be supplanted or overthrown by malice or arms , so long as god and good men will assist , in which his sacred majesty did not want , when he asserted his right with the blood and lives of so many thousands that fell in the dispute . ii. that princes may have an exclusive property in the soveraignty of the several parts of the sea , and in the passage fishing and shores , is so evidently true by way of fact , as no man that is not desperatly impudent can deny it , the considerations of the general practise in all maritime countries , the necessity of order in mutual commerce , and the safety of mens persons , goods and lives , hath taught even the most barbarous nations to know by the light of human reason , that laws are as equally necessary for the government and preservation of the sea , as those that negotiate and trade on the firm land ; and that to make laws and to give them the life of execution , must of necessity require a supream authority , for to leave every part of the sea and shores to an arbitrary and promiscuous use , with a correcting and securing power in case of wrong or danger , is to make men with the like condition of the fishes , where the greater devour and swallow the less . and though the sea is as a high-way , and common to all ; yet it is as other high-waies by lands or great rivers are , which though common and free , are not to be usurped by private persons , to their own entire service ; but remain to the use of every one , not that their freedom is such , as that they should be without protection or government of some prince or republique , but rather not exclude the same ; for the true ensign of liberty and freedom is protection from those that maintain it in liberty . iv. and as the sea is capable of protection and government , so is the same no less then the land subject to be divided amongst men , and appropriated to cities and potentats , which long since was ordained of god as a thing most natural , whence it was that aristotle , when he said , that unto maritime cities the sea is the territory , because from thence they take their sustenance and defence ; a thing which cannot be unless part of it might be appropriated in the like manner as the land is , which is divided betwixt cities and governments , not by equal parts , or according to their greatness , but according as they are able to rule , govern and defend them : berne is not the greatest city of switzerland ; yet he hath as large territory as all the rest of the twelve cantons put togetether : the cities of noremberg and genoa are very rich and great , yet their territories hardly exceed their walls : and venice the mistress and queen of the mediterranian , was known for many years to be without any manner of possession in the firme land. v. again on the sea , certain cities of great force , have possessed large quantities thereof ; others of little force , have been contented with the next waters . neitheir are there wanting examples of such , notwithstanding they are maritime , yet having fertile lands lying on the back of them , have been contented therewith without ever attempting to gain any sea dominion ; others who being awed by by their more mighty neighbours , have been constrained to forbear any such attempt ; for which two causes a city or republique , though it be maritime , yet it may remain without any possession of the sea. god hath instituted principalities for the maintenance of justice to the benefit of mankind ; which is necessary to be executed as well by sea , as by land : saint paul saith , that for this cause there were due to princes customs and contributions . it would be a great absurdity to praise the well government and defence of the land , and to condemn that of the sea ; nor doth it follow because of the vastness of the sea , that it is not possible to be governed and protected , but that proceeds from a defect in mankind ; for deserts though part of kingdoms , are impossible to be governed and protected , witness the many deserts of africk , and the immense vastities of the new world. vi. as it is a gift of god , that a land by the laws and publique power be ruled , protected and governed : so the same happens to the sea ; and those * are deceived by a gross equivocation , who aver that the land by reason of its stability ought to be subjected , but not the sea , for being an unconstant element , no more then air ; forasmuch as they intend by the sea and the air all the parts of the fluid elements , it is a most certain thing , that they cannot be brought under subjection and government , because whilst a man serves himself with any one part of them , the other escapes out of his power ; but this chanceth also to rivers , which cannot be detained ; but one is said to rule over a sea or river , it is understood not of the element , but of the scite where they are placed : the water of the adriatique and british seas continually runs out thereof , and yet is the same sea as the tiber , poe , rhine , thames or severne , are the same rivers they were a thousand years since ; and this is that that is subject to princes by way of protection and government . again , it would seem ridiculous if any man would assert that the sea ought to be left without protection , so that any one might do therein well or ill , robbing , spoiling , and making it unnavigable , or whatsoever should seem fitting in their eyes ; from all which it is apparent that the sea ought to be governed by those by whom it most properly appertains by the divine disposition . vii . when * julius caesar first undertook the invasion of this isle , he summoned the neighbouring galls to inform him of the shores , ports , havens and other things convenient that might acelerate his intended conquest ; but from them nothing could be had , they answering , all commerce and traffick , and visiting their ports was interdicted to all nations before license had ; nor could any but merchants visit the same , and then had they places * assigned them whether they should come ; nor was this dominion that the britains then used , commanded without a naval force ; the sight of which when caesar saw , he preferred them before those of the romans : for upon that occasion it was that caesar , having seen those auxiliary squadrons , which the britains sent the gauls in their expeditions against the romans , took occasion to find out that warlike people , whose bare auxiliary aide shook the flower of the roman squadrons . and when the romans became conqueroues of this isle , the same right or dominion was during all their time , supported and maintained when they sailed round their new atcheived conquests in the time of domitian , agricola , giving terrour to all the neighbouring nations . but when that mighty empire became subject to fate , and this nation by the continual supply of men , which went out of the kingdom to fill up the contingencies of the roman legions , we became at last so enfeebled as to render us a prey to the saxon ; which empire when having settled peace with their danish neighbours , and quieted their own home , bred quarrells ; and having reduced the several petty kingdoms of their heptarchy under one diadem , they forgot not to assume their antient right and dominion of the seas ; as did the most noble edgar , who kept no less a number then sail of ships to vindicate and ascertain his dominion , giving protection to the peaceable , and punishment to the offender : nor did his successors etheldred , canutus , edmund , and those that followed of the danish race , any waies wave , relinquish or loose that royalty , but obsequiously maintained the same down to the conqueror , and from him since for some upwards of hundred years in a quiet and peaceable possession . to mention the antient commissions , and exercise of this soveraign power , safe-conducts , writs of seizure , arrests , records of grants , and licences to pass through the sea , and to fish , parliament rolls and the like , † would make a volum ; in a word , if right of prescription , succession of inheritance , continual claim , matter of fact , consent of history and confessions , even from the mouths and pens of adversaries , be of any moment to the asserting of a tittle , his sacred majesty may be presumed , to have as good a tittle to that , as the most absolutest monarch this day on earth , hath to what ever he can claim or does enjoy . viii . now the duty of the flagg is no more but a consecutive acknowledging of that right and dominion of the british seas , ( not as a bare honorary salute or ceremony , but as an absolute sign of the right and soveraignty of those seas where they are oblidged to strike sail : ) are in him to whose flagg the vail , and pay that duty to ; and in substance is no more but that the king grants a generall licence for ships to pass through his seas , that are his friends , paying that obeysance and duty , like those services when lords grant out estates , reserving a rose or pepper corn , the value of which is not regarded , but the rememberance and acknowledging their benefactors right and dominion . that this hath been an antient custom , alwaies waiting on that soveraignty , appears by that memorable record upwards of years since made , where it is declared by king john what the antient custom was , in these words ; that if a lievtenant in any uoyage , being ordained by common councel of the kingdom do encounter upon the sea any ships or uessels , laden or unladen , that will not strike vail and their bonets at the commandment of the lievtenant of the king , but will fight against them of the fleet , that if they can be taken , they be reputed as enemies , and their ships , uessels and goods taken and forfeited as the goods of enemies , although the masters or possessors of the same would come afterwards , and alledge , that they are the ships , uessels and goods of those that are friends to our lord the king , and that the common people in the same be chastised by imprisonment of their bodyes for their rebellion , by discretion . thus this immemorial custom was by that prudent prince affirmed , the which hath been alwaies before , and ever since , ( without interruption by all nations ) constantly pay'd to the ships of war , bearing the royall standard and other of his majesties ships , wearing his colours and ensigns of service ; he knowing that undoubted maxim of state , that kingdoms are preserved by reputation , which is as well their strongest support in peace , as their chiefest safety in time of war , when once they grow dispised , they are either subject to forreign invasions , or domestique troubles , the which ( if possible ) that prince would have prevented , but he lived when those celestial bodies which govern the action of princes seem to frown on the most virtuous and wise. ix . and as there is no nation in the world more tender and jealous of their honour then the english ; so none more impatiently tollerate the diminution thereof . hence it was that in all treaties before , almost any thing other was assertained the dominion of the sea , and stricking the top-fail was alwaies first provided for . in the year , after the dutch had measured the length of their swords with those of this nation , and being sensible of the odds , and having by their four embassadours most humbly besought peace , this very duty of the flagg was demanded by the th . article , in these words : that the ships and uessels of the said united provinces , as well men of war as others , he they in single ships , or in fleets meeting at sea with any of the ships of this state of england , or in their service , and wearing the flagg ; shall strike the flagg , and lower their top-sail , untill they be passed by , and shall likewise submit themselves to be visited if thereto required , and perform all other respects due to the said common wealth of england , to whom the dominion and soveraignty of the british seas belong . this was so peremptorily demanded , that without the solemn acknowledging of the soveraignty over the british seas , there was no peace to be had ; that as to the acknowledging of the soveraignty and the flag , they were willing to continue the antient custom , but that of visiting was somewhat hard : 't is true the latter clause was by the usurper waved , for reasons standing with his private interest ; but the first was made absolute , by the article between him and that republique , and from thence it was transcribed to the article at white-hall , and afterwards into the article at breda , and from thence into the th . article made last at westm. and that clause of searching of each others ships made reciprocate , by the article made in the marine treaty at london ; but that extends not to ships of war , but only the ships of subjects . x. by the british seas in the article about the flagg , are meant the four seas , and not the channel only ; for in the article they did express what was meant by the british seas . † that the inhabitants and subjects of the united provinces map with their ships and uessels furnished as merchant men , fréely use their navigation , sail pass and repass in the seas of great britain and ireland , and the isles within the same , commonly called the british seas , without any wrong or injury to be offered them by the ships or people of this common-wealth ; but on the contrary shall be treated with all love and friendly offices , and may likewise with their men of war — not excéeding such a number as shall be agréed upon — sail , pass and repass through , the said seas , to and from the countries and ports beyond them ; but in case the said states general shall have occasion to pass through the said seas with a greater number of men of war , they shall give thrée months notice of their intention to the common-wealth , and obtain their consent for the passing of such a fléet , for preventing of iealousy and misunderstanding betwixt the states by means thereof . the first part of this article doth plainly set out the extent of the british seas , and that it is not the bare channel alone that comprehends the same , but the four seas , and the same is further explained in the great case of constables , † where the dominion of the queen ( before the union ) as to the seas , did extend midway between england and spain ; but entirely between england and france ; for the french never had any right or claim to the british seas : for in the wars between edward the first and philip the fair , ( all commerce on both sides being agreed to be free , so that to all merchants whatsoever there should be induciae , which were called sufferantia guerrae , and judges on both sides were appointed to take cognizance of all things done against these truces , and should exercise judicium secundum legem mercatoriam & formam sufferantiae : it was contained in the first provision of that league , that they should defend each others rights against all others ; this afterwards occasioned the introducing that judgement in the same kings time , ( before those judges , chosen by both the said princes by the proctors of the prelates , nobility and high admiral of england , and all the cities towns and subjects of england , &c. unto which were joyned the suffrages of the most maritime nations , as genoa , catalonia , spain , almain , zeland , holland , freisland , denmark and norway , and divers other subjects of the roman empire , ) against reginer grimbald , then admiral of france , for that there being wars between philip king of france and guy earl of flanders , he had taken merchants upon those seas , in their voyage to flanders , and despoiled them of their goods ; whereas the kings of england and their predecessors , ( as they all joyntly do declare and affirm without all controversy beyond the memory of man , ) have had the supream government of the english seas , and the islands thereof . praes●…ribendo scilicet leges statuta atque interdicta armorum , naviumque alio ac mercatoriis , armamentis instructarum , causationes exigendo , tutelam praebendo , ubicunque opus esset , atque alio constituendo quaecunque fuerint necessaria ad pacem , jus & equitatem conservandam inter omnimodas vates tam exteras quam in imperio anglicano comprehensas quae per illud transierint ; supremam iisdem item fuisse atque esse tutelam ; merum mixtum imperium in juredicendo secundam dictas leges statuta praescripta & interdicta , aliisque in rebus quae ad summum imperium attine in locis adjudicatis . by which memorable record , it apparently shewes that the kings of england have hand istud regimen & dominium exclusive of the king of france bordering upon the same seas and of all other kings and princes whatsoever : and it was there adjudged that grimbalds patent was an usurpation on the king of england's dominion , and he adjudged to make satisfaction , or if he proved unable , then the king his master should and that after satisfaction he rendred to punishment . and as to the second part of the articles of giving notice , it was but an act of common prudence , their late unexpected visit which they then gave , put the english to some surprise ; but they facing the battavian , soon made them know that they were as capable of beating them home , as they were then daring in coming out , and were not to be braved out of a dominion and right , which their ancestors had with so much glory acquired and asserted . xi . by the article of the offensive and defensive league between france and the united provinces , it was agreed , that if at any time the dutch fleet ( — which were to scoure the french coasts in the mediterranean from pyrats ) should at any time meet the french , the admiral of the dutch was to strike his flagg and lower his top-sail at his first approach to the french fleet , and to salute the admiral of france with guns , who was to return the said salute by guns also , as was usual when the dutch and english fleet did meet . only in this the right of the flagg of england differs from that claimed by the french ; for if there had been a failer on the part of the dutch , of paying that respect to the french , the same would have amounted to no more but a breach of the league : but the not striking to the king of englands flagg , is open rebellion ; and the article does so signify , for it is there mentioned as a right and soveraignty , not a bare dominion only , like that of jerusalem to the king of spain . xii . the duty of the flagg that hath been so constantly pay'd to our ancestors , is of such advantage to the continuing the renown of this nation , that it serveth to imprint new reverence in forreigners that render it , and adds new courage to those of our sea men that exact it ; and since we know how much it imports a state that it be reverenced abroad , and that repute is the principal support of any government , it equally influenceth the subjects at home and forreign allies abroad : and as there is no nation in the world more tender of their honour then the english , so none more impatiently tollerate the diminution thereof , with what resentments would not only the more generous and noble , but even the popular and vulgar sea men detest this or any succeeding age should they remit or loose that regality ; those acknowledgements which their predecessors with so much glory asserted , and the neglect whereof was alwaies punished as open rebellion : the indignity of such an action being sufficient to enflame the whole kingdom , the consideration of which besides his sacred majesties own royal inclination to the same , and his evident testimonies never to abandon a ceremony of so high a concernment ; witness the exposing the one half of his own heart his royal highness , in the asserting the same , with such fleets and in such battles , that no age or time cannot shew a memorial of the like , are causes sufficient to create in us new flames of love to those royal patriots and defenders of our rights . private persons move in another sphear , and act by other rules then soveraign powers ; the regard of credit with them , may oftentimes yield to those of utility or other motives ; the publique receives little injury thereby , or is their wisdom questioned for such punctilio's , if they relinquish them for other imoluments or peace sake ; but soveraigns cannot so transact , their subjects the people participate in their honour and indignities ; they have a property , a direct right in the former † : soveraignes cannot alienate or suffer their honours to be impaired , because it is not really theirs , it appertains to the nation universally , and they are all effectually injured by such transactions , either because the indignity doth really extend to them , or because the government and authority is thereupon weakned and prejudiced , which is the greatest of civil detriments that can befall a people , though ordinarily they are not aware thereof . as prudence doth thus distinguish betwixt the demeanor of private and publique persons , so doth charity it self ; for though the gospel precepts do oblidge particular persons to bear injuries and contumelies with patience , and to surrender even the coat as well as the cloak ; yet is not this so to be construed , as if even private christians were to yield up their civil rights to every insolent that would incroach upon , and usurp them , or that they were to deprive themselves of those reparations , which the law and government affords them ; neither is it so to be understood as if the civil magistrate in christendom might not secure himself of that obedience and reverence , which is due unto dignity , but bear the sword in vain . xiii . this being the value which this nation did alwaies place upon the right of the flagg , the which they never did regard it only as a civility and respect , but as a principal testimony of the unquestionable right of this nation to the dominion and superiority of the adjacent seas , acknowledged generally by all the neighbour states and princes of europe , and must be pay'd and ackowledged by all princes in the world , that shall be or pass on the same . the maritime dominion by the laws of england were alwaies accounted the four seas , such as are born thereon , are not aliens , and to be within them is to be within the legeance of the king and realm of england . the records in the daies of edward the d. and henry the th . proclaim it , that those kings and their progenitors had ever been lords of the seas : and amongst those many great instances of proving the soveraignty of the same , is that famous record of edward the first and phillip the fair of france , in which the procurators of most nations bordering upon the sea thoroughout europe , as the genoeses , catalonians , almaines , zelanders , hollanders , freislanders , danes and norwygians , besides others under the dominion of the roman german empire , where all joyntly declare , that the kings of england , by right of the said kingdom from time to time , whereof there is no memorial to the contrary , have béen in peaceable possession of the soveraign lordship of the seas of england , and of the ●…es within the same , with power of making and establishing laws , statutes and prohibitions of arms , and of ships otherwise furnished then merchant men use to be , and of taking surety , and affording safe-guard in all cases where néed shall require , and of ordering all things necessary for the maintaining of peace , right and equity among all manner of people , as well of other dominions , as their own passing through the said seas , and the soveraign guard thereof . by which it plainly appears , that the king of england had then been in peaceable possession of the said dominion by immemorial prescription , that the soveraignty belongeth unto them not because they were domini utriusque ripas , ) when they had both england and normandy , and were lords of both shores ; ( for edward the first at that time had not normandy ) but that it is inseparably appendant and annexed to the kingdom of england , our kings being superior lords of the said seas , by reason ( as the very record mentions ) of the said kingdom , and since that the soveraignty of the sea did alwaies appertain unto the english king , not in any other right then that of the kingdom of england ; no prince or republique ought or can doubt the tittle by which our present claim is deduced ; 't is in right of britannia , that the same is challenged , 't was in that right the romans held it : the claim justified ed. . and his rose noble ; though there are other reasons regarding to the lancastrian line , which yield a colour for the use of the port-cullis in the roal banners of england ; yet as in reference to the maritime dominion henry th . did embellish his navy royal therewith , and queen elizabeth stamped it upon those dollars which she designed for the east india trade , signifying her power of shutting up the seas , if she thought fit ( as by a port-cullis ) with the navy royal ; this dominion of the british seas did authenticate the proclamation of king james , ordaining the flemish at london and edinborough to take licence to fish , this justified the like proclamation by the late royal martyr king charles , and warranted by the earl of northumberland in his naval expedition . that prescription is valid against the claims of soveraign princes cannot be deny'd , by any who regard the holy scripture ; reason , the practise and tranquillity of the world : and that true it is , the modern dutch have pretended , if not dared , to challenge the freedom to fish in the british seas , by prescription ; but it is likewise as true that prescription depends not upon the corporeal but the civil possession , and that is retained if claim , be but made so often as to barr the prescription , the which hath been alwaies made evident ; first by frequent medals , next by punishing those that refused it as rebels , by guarding it of it ; and lastly by giving laws time out of mind on it , which evidently proves that the civil possession is not relinquished ; & our kings constantly claiming the dominion of the same , none else pretending , all nations acknowledging it to be in them , and the same never questioned , till those modern dutch ( of yesterday ) arose . xiv . the importance of the dominion of the sea unto this nation , is very great , for alone on that depends our security , our wealth , our glory ; from hence it is that england hath a right to all those advantages and emoluments , which the venetian republique draws from the adriatique sea , where the ships of the grand seignior , of the emperor , king of spain , and pope , pay customs , to maintain those fleets , which give laws to them within the gulfe , 't is hereby that the english can shut up or open these seas for ships or fleets to pass or repass them ; whereto queen elizabeth had so special a regard , that when the king of denmark and the hansiatique towns sollicited her majesty to permit them free passage , they transporting corn into spain , she refused them ; and when a protestant fleet of hamburgers and others , had presumed to do so notwithstanding her prohibition , she caused her navy royal to seize , take , burn and spoil them , when they were passed her maritime territory , within sight of lisbon ; yielding this reason for her justification , that they not only relieved her enemy with provisions , but had presumptuously made use of her seas , without obtaining her royal permission for so doing : 't is from hence that the crown of england can justly demand an account of any ship or ships occurring in those seas , what 's their business , and what their intentions are ; and prohibite any prince or reipublique , to enter there with potent fleets , without praeacquainting his majesty and obtaining his royal permission ; without which dominion and soveraignty , england can never live secure on shore , it being easy for any forreign fleets to amuse us with specious pretenses , and in their passage to invade and surprise us : thus whilst the turk pretended to sail for malta , he occasionally possessed himself of canea , in the isle of candia ; many such presidents do occur in history : and in fear of such surprizal , the athenians ( being lords at sea ) did exclude the persian monarchs from sending any ships of war into any part of the aegean sea , rhodian , carpathian and lydian seas , and that which tends to the west , towards athens ; the like caution was used by the romans against antiochus and the carthaginians ; and the turk prohibits all nations , saving his vassals , to enter the black sea or pontus euxinus , and also the red sea ; and that 't is by virtue and force of this right that the british nation can drive on their own commerce , navigate themselves , and permit others securely to trade with them ; 't is true that the dutch have presumed some years since , to violate the security of the british seas , by the attacking the allies of england , not only within the british seas , but in her harbours , attempting to pursue a french vessel up almost to london , and have more then once * attacqued the spanish fleets in her ports , under the protection of her castles , and that against the laws of nations , and the peace of ports , in which for the time they seemed to cloud the honour of the nation , but satisfaction for indignities of that nature , though slow , yet are sure , and should such as those have been longer tollerated : beloved britannia must become a prostitute , by a confederation of those states , or take pass-ports for her commerce ; but the royal martyrs goodness was no longer to be trod on , his heart and his cause were good , and though those unhappy times ( which were crooked to whatsoever seem'd straight ) did hinder the accomplshiments of his entire intention for satisfaction ; yet those whom the just god of heaven was pleased for a time to permit as a punishment to this nation to rule , did not want in the fulfilling ; for so soon as he was pleased to stay the fury of the intestine sword , their hearts took fire from that flame that had formerly been kindled in that royal brest , and having prepared a fleet , in order to the treating as souldiers with swords in their hands , they were in the like manner assaulted in their territories in the downes ; ( but the dutch found then what it was ( though two for one ) to assault a british lyon at the mouth of his den , ) intending , if possible , to have destroyed the english power , but were frustrated in their design , being severely beaten home to their own doo●…●…d afterwards those that then had got the english ●…d in their hands , begun to consider that the vict●…y ●…ust be pursued , as a season fit to assert their antien●…●…ight and soveraignty of the sea , and then those people thinking that the odds before was not enough to destroy the bri●… fleet , they equipt out a fleet greater and far more numerous then the english , under the admirals van trump , de witt , the two evertsons , and ruyter ; but they suffered the same fate as their former , about some of their ships on the coast of flanders , burnt and taken , and the rest chased home to their ports ; and not long after followed the total defeat of their naval forces , accompanied with the death of van trump by the english , under the admirals blake and monk , who had sunk and fired about more of their ships of war ( no quarter being given till the end of the bataill ) six captains , and about a thousand men were taken prisoners , and about six thousand slain of their presomptions : since ( amongst other things ) in denying the duty of the flagg , and of what punishment and check they have had for the same , to what condition they have been reduced and made , to acknowledge that dominion and superiority , to that crown ( under which their ancestors humbly † besought the acceptance of the soveraignty of the netherlands , might be annexed and protected ) is now fresh in our memories , so high and of so great importance is this dominion and soveraignty signified by the duty of the flagg in the british circumjacent seas . chap. vi. of the right of pressing or seizing of ships or mariners , for service publique . i. that such right is excepted in the law of dominion . ii. whether the ships of nations who are in war at the same time may be pressed , the danger being equal . iii. whether this right extends to ships to fight , and no ●…more , or gives a power to trade . iv. by the laws of england the king may seize . v. the reason why such power was ves●…ed in the admiral . vi. that such a right of compelling men to serve in naval expeditions may be . vii objections legal refuted . viii . of the antient punishment of such deserters of the kings service . ix . whether it be lawful for a private man to execute justice on such as fly and desert the service . x. where a general commission is given to men to execute justice . i. the civil law , though it can command nothing which the law of nature forbids , nor forbid what it commands ; nevertheless it may circumscribe natural liberty , and prohibite what was naturally lawful : and also by its force antevert that very dominion , which is naturally to be acquired : hence it is that princes by the law of nations may acquire a right of use , of things that do belong to private persons , for property hath not ( as hath been said ) swallow'd up all that right , which rose from the common state of things ; for as all laws are to be construed as neer as possible to the intention of the makers , so we must consider what was the mind of those that first introduced singular dominions ; now the rule to construe that , must be as neer as possible to naturall equity , and that in extream necessity that old right of using things should revive as if the things had remained common , the same standing with the interest of all humane constitutions ; and therefore in the law of dominion extream necessity seems excepted : hence it is that the vessels and ships of what nature or nation soever * that shall be found riding in the port or havens of any prince or state , may be seized on , and imploy'd upon any service of that soverain that shall seize , the same being but a harmless utility not divesting the owners of their inte●…●…r property . ii. if a ship of the king of denmark be in the port of london , and the swede is in war with that prince ; and it happens at that time the king of britain is in war with the spaniard , now the possessor is here pressed with an equal necessity , and by the same argument is rather obliged to the defense of his own country then another , whether by the law of nations the ship ought to be detained , hath been doubted ; most certain they may , who would not pluck a shipwrackt man from his planck ? or a wounded man from his horse , rather then suffer himself to perish ; to slight which is a sin , and to preserve the highest of wisdom ; besides in the taking of the vessel the right is not taken from the owner , but only the use , which when the necessity is over there is a condition of restoring annexed tacitly to such a seizure . * and doubtless the same right remains to seize the ships of war of any nations , as well as those of private interrest , the which may be imploy'd as occasion shall be present : so the grecians seized on ships of all nations that were in ports , by the advice of xenophon ; but in the time provided food and wages to the mariners . iii. whether this right extends so far as to give princes a power to seize in order to traffique , may be some question ; certainly if the traffique be for such commodities as masts , timber , tar , powder , shot or other commodities or accoutrements of armes , or naval provisions of offence necessary for the defence of the realm , it may be done ( but then it is just , fraight * should be pay'd ) for what hurt can it do me to let another my boat to pass over a ford , if he rewards me ? and if that be answered , the owners are at no prejudice , for this is but a harmeless utility . iv. by the laws of england there is no question , but the king may seize , and it appears by very many antient records , that he might do it ; and it was one of the articles of enquiry amongst others , item , soit in quis de neifs qui sont arrestez pour le service du roy ou de l'admiral , & debreissant le arrest , then follows , ordonne estoit en temps du roy richard le primier a grimsby per advise de plusteurs seigneurs du royaume , que quand neifs seront arrestez , &c. and that upon such arrests broken , the parties might be punished and fined . again , inquiratur si arrestatus , ad serviendum regi fregit arrestum , hujusmodi transgressor stat in gratia regia sive admiralli sui ultrum voluerint committere carceribus mancipandum vel finem facere , in hac parte si arrestum hujusmodi factum manifestum fuerit cognitum . if the admiral by the kings command arrests any ships for the kings service , and he or his livetenant return and certify the arrest or a list of the ships arrested , into chancery , no master or owner of the ships so arrested shall be received to plead against the return , pur ceo que l'admiral & son lieu●…enant sont de record . and if the ship so arrested , break the arrest , and the master or owner thereof be indicted and convicted devant l'admiral , by the oath of men , the ship shall be confiscate to the king , which power the general maintains in all places where he has power , and the same seems to be provided for in the latter clause of r. . ca. . king ethelred , his bishops and nobles in the general councel of enham an . , for the setting out a fleet every year ; and the punishment of those who hurt or spoiled any ship , or deserted the service , especially if the king was present in the expedition ; amongst others it was enacted , si quis navem in reipub. expeditionem designatam vitiaverit , damnum integre restitutio & pacem regis violatam compensato ; si verum ita prorsus coruperit , ut deinceps nihili habeatur : plenam luito injuriam & laesam praeterea majestatem , so sir henry spelmans version out of the saxon copy renders it , but the antient copy hath it more largely . naves per singulos annos ob pa●…ae defensionem & munitionem praeparentur , postque sacrosanctum pascha cum cunctis utensilibus competentibus simul congregentur ; qua igitur etiam poena digni sunt , qui navium detrimentum in aliquibus perficiunt : notum esse cupimus , quicunque aliquam ex navibus per quampiam inertiam vel incuriam , vell negligentiam corruperit , & tamen recuperabilis sit ; is navis corruptelam vel fracturam ejusdem per solidam prius recuperet , regique deinde , eaque pro ejusdem munitionis fractura , sibimet pertenent rite persolvat . most certain it is , that the kings of england , have in all ages by their writs and patents , commanded not only the admiral , but the wardens of the cinque ports and others , to arrest and provide ships of war and other vessels , and impress and provide masters of ships , sea men mariners , and all other necessary tackle . arms and provisions for ships , for the defense of the sea and the realm against forreign enemies , or for transporting of armies paying their freight ( if not bound there by tenure ) as well as to elect and provide all sorts of souldiers , carpenters and others officers to be assistants in their several expeditions . but firshermen or mariners pressed for the service , are not to be imploy'd as souldiers , but only as mariners ; unless it be in cas●…s of great necessity , or bound thereunto , by tenure , custom or covenant . and water-men that shall withdraw themselves in time of pressing , shall suffer a fortnights imprisonment , and be prohibited to row on the thames . v. the reason why the admirals had such power given them , was because they being sometimes called capitanei , and gubernatores flotarum ; they had their ordering and governing of the ships of war , and the raising and fitting up such ships for the navies , as they thought fit ; other times called custodes maritimarum partium their duty being to provide all naval provisions , as well to supply the kings navies occasions , as to gratify another of the kings friends when distress should constrain them to touch in his ports , that his subjects might receive the like retaliation : again they were called capitanei nautarum , & marinellorum ; as in reference for the deciding all differences amongst those in the kings service , and punishing of such as transgressed ; and as the place was great , so the power was large , especially in all things belonging to the navy-royall , in which they had the supream rule and government in all things belonging to it . he sate formerly in the kings house , and there kept his court , as the french admirals do at this day at the marble-table , in the kings house at paris . it is lawful for every man to addict and yield up himself to whom he pleaseth , as appears both out of the hebrew law and roman law ; why then may not any people being at their own dispose , give up themselves to their prince or soveraign ; so as to transcribe the right of commanding their aide and help , as often as need shall require ( it is not here inquired what may be presumed in a doubtful case , but what may be done in point of right , ) most certain such a power may well be done , and that grounded on great reason ; first if the common-wealth should happen to be invaded by such a one as seeks not only the subversion of the government but the destruction of the people , and they can find no other way to preserve themselves , but that the supream power should be vested with such such a prerogative , as to inforce or presse the inhabitants to serve in armes in the defence of the same , and the contempt of which to punish , or if they should be opprest with want , and that supplies of provisions can no waies be had , but by compelling another by force to exhibite the common offices of humanity to a nation in whose territories a famine rages , that the inhabitants should on such extraordinary occasions be compelled by force to serve in armes . and this dominion may be obtained several waies , either by a voluntary resignation to a conqueror as they of capua to the romanes ▪ our land , the temples of our gods , all divine and humane things , we yield up into your hands , o ye conscript fathers : again freedom may be granted to all by a conqueror , except mariners , which should in cases of necessity be excepted , or that some prince , who will not suffer any mariner to go out of his dominions , without subjecting themselves to such a reasonable command , and the majority of nations on such grounds , may abdicate from a part of them the entire freedom of that member . nor are their examples of this kind wanting ; the germans are every one master of his owne house , but are almost on every occasion subject to their lords , especially in their goods . the irish cosherers , which were reprehendinations when the chief lord , and his retinue came to his tenants house , and fed upon their provisions till they were spent , all being solely at their devotion : and as to the sea , the king of britain may at this day restrain merchants or mariners to pass out of the realm , without licence , and the various tenures that are introduced , which is presumed were since the conquest , were no other but the will of the conqueror , for the right is not measured by the excellency of this or that form , but by the will. vii . and though it hath been conceived by some , that the king cannot presse men to serve in his wars , giving their reason , that of old he was to be served either by those that held by tenure , those that covenanted by indenture to provide men , or those who contracted with the kings officers for wages and entered into pay , or those that were in prison for the kings debts ; but that only extended to those wars that were by land : not one word in all those acts , or mr. rolls , that any waies mention the least of mariners ; and yet what vast fleets were in those daies : but on the other hand it hath been alwaies accustomed to presse such sort of men for the naval expeditions , the antient records that mentions such persons subject to presse by law is that of e. . commonly called † the inquisition of queenborrough , wherein it was expresly , in charge amongst others , to inquire of those mariners that were pressed for the kings service , and deserted the same : so likewise by those other articles translated by roughton , it is expresse in charge to the jury to present those that being prest to serve , brake the kings arrest , in order to their punishment ; and in those daies it was esteem'd an high offence : and the oath which the jury then took being impanelled , was this : this here see my lord the admiral , that i ionathan nash shall well and truly enquire for our lord the king , and well and truly at this time then serve at this court of th' admiralty , present at moch , as i have acknowleche , or may have by information of eny of my fellows , of all mane articles or circunstances that touchen the court of the admirate and law of the sea , the which shall be grate to me at this time ; and i thereupon sworne or charged , and of all other that may renew in my minde , and in shall for nothing lette , that is for to say , for franchise , lordship , kinreden , aliance . freindship , love , hatred , envye enemitee , for dred of lost of goodnee , for none other case that i shall soe doe , the kings counseils , my fellows , mine owne , will and truly hele what oute fraude or malengyn , so god me help at the holydome , and by this book . viii . and as the enquiry was strict , so was the punishment very great ; item , qui fugiet a domino vel socio suo pro timiditate belli , vel mortis in conductione heretochii sui in expeditione navali vel terrestri perdat omne quod suum est , & suam ipsius vitam , manus mittat dominus ad terram quam ei antea dederat . ix . if such persons shall so desert the service , it hath been a question whether a private person under the same obedience meeting with such a deserter , might not put him to death ; it hath been conceived that he might , and the act is lawful , and the party that slayes him hath a true right before god , as impunity before men : but that is to be understood partly by the words , and partly by the letter of the law ; for if the law gives indulgence to passion , it takes away humane punishment , and not the fault ; as in case a husband kills an adulterous wife or the adulterer † in the act , most certain it is a provocation in the highest nature , and will justify the slayer : but if the law respect the danger of future evill , by delay of punishment , it is conceived to grant right and publique power to a private man ; so that he is not then in the capacity of a private man. and upon that very reason queen elizabeth deny'd the constituting of a constable , for the tryal of sir francis drake , who struck off the head of doughty , in partibus transmarinis . x. hence it is that every man hath a licence given him to oppose force against plundering and pillaging souldiers , and the next the subsequent law about deserters saith , let all men know they have a power given them against publique robbers and desertors that run from their colours , and all are ministers of revenge for the quiet of all ; to this purpose is that of tertullian , against traitors or publique enemies , every man is a souldier , and herein differs the right of killing of exiles and outlaws , or those whom they call bannitoes , from those kind of laws , because there proceeds a special sentence , the judgement of banishment or outlawry being promulgated ; but here a generall edict , the fact being evident , obtains the force of a judgement or sentence pronounced ; the judgement of the latter must be according to the civil law , which yet remains still in force , as to the tryal of such deserters , by which impunity for such killing , seems allow'd off at this day by that law. chap. vii . of dominion established by creaties of alliance equal . i. of treaties by interview of princes , and where generally held . ii. of princes equal , the honour pay'd by him in possession to him that comes to the treaty . iii. of treaties by princes unequal . iv. princes where oblidged to treat personally , and where not . v. deputies their demeanor considered generally at treaties . vi of the nature of treaties generally , and their ends ; and where they determine by the death or dispossession of a prince , and where not . vii . of treaties in reference to matters particular , and of the nature of leagues offensive , and to what end . viii . of the causes ordinary procuring such leagues . ix . of leagues tending to the procuring of general peace and warranty . x. of leagues defensive , and of their end , together with considerations on the persons with whom they are made . xi . of accidents not provided for in the league how far in honour to be comply'd with . xii . of contribution , the difficulty in regulating the same to the satisfaction of the parties interessed . xiii . of leagues concluded by deputies , and of the ratifying the same . xiv . of the causes extraordinary that tend to the breach of leagues . xv. of the causes ordinary that give occasion for rupture of the same , and from whence they proceed . xvi . of the obligations on confederates as in reference to mutual succours . xvii . of aide granted to particulars and common allies , when invaded by another ally ; and of protection granted when a people are oppressed , whether aide to such may stand with the league . xviii . whether the oath taken for the performance of such a league is personal , or binds the successor , and the general rule in construing of the same . xix . of leagues made with princes , though driven out of their country when the same are good . i. treaties are acted either by the interview of princes , or by persons sufficiently commissionate for that purpose . those that are by interview , have been often disapproved , though often practised ; but that depends rather of the estate of affairs , and the conformity and diversity of honours , and manner of living of the princes and their people ; then of the interview : that of lewis the th . with duke charles of burgundy , and with the same king with edward the th . of england , past fairly , and in all such treaties they govern themselves as in reference to their supplies , according to the confidence which they repose in each other . places neuter belonging * to some common friend , or or some frontiere or islands , are generally appointed for the same , together with what numbers or forces , they are to be accompanied . ii. but if of two princes , the one goes home unto the other , he is bound to do him the honour of his house . and if the prince be inferiour unto him , he commonly snds forth some of principal officers of his court to receive him ; but if he be his equal in quality , as being both kings , although there be some debate betwixt him for precedence if he comes first to the place where the treaty is to be made , he must go in person , and not by proxy . in the interview that was between lewis the th . and ferdinand of arragon at savona ; ( which then belonged unto the french king ) lewis the th . at the approach of ferdinands gally ( before he could land ) entered into it , accompanied only with his guard , to testify his confidence , and thereby to assure king ferdinand of that which he had promised he should find in him ; and at their going to land , king lewis left the right hand to ferdinand , who lodged in the castle , as the most honourable place , and himself went to the bishoprick . iii. by the laws of treaties , when two princes unequal in quality partly , the inferior is to come first to the place of congress there , to attend the greater . iv. ambassadors having received orders to treat , the prince to whom such are sent , are not by the laws of treaties bound to treat personally , but only to depute some of his councel for that effect ; the reason is , for that the dignity of a prince may receive some detriment , which cannot be maintained amidst the contestations which happen in conferences . but if an ambassador be deputed as lievtenant to a prince , there indeed such commissioner is not bound to treat , but only with the prince himself : and so it was where the bishop of gurgia , who was deputed by the emperor to pope julio the second ; the pope commissionated cardinals to treat with him , but the bishop having notice in what quality he was like to be received , commissionated gentlemen to confer with them , excusing himself upon other affairs ; which afterwards was explained , that he came not as a single ambassador , but as a livetenant to the emperor , to the which quality he had been received at rome by the pope . v. the deputies being assembled , their seats are considerable , they having no power to quit any thing of the ranke , which their masters ought to hold , and by the laws of treaties the first place , is at the head or end of the table , ( if there be one ) the second is the first on the right hand , and the third is , the first on the left hand of him that is at the end : and if there be many deputies to one prince , they usually sit at one side , to have the more facility to confer together , if it be needful . vi. treaties which are made with our neighbours as friends , are called treaties of alliances , equal or unequal : the equal is either of single friendship only , for the entertainment of traffique , or for aide and succour ; that of succour is for the defensive or offensive , and sometimes for both , with or against all men , or against some certain princes and republiques and there † alliances are contracted , either from estate to estate , and for the preservation of the estates of each other ( in which case by the death of the prince they may not be interrupted . or else they are contracted betwixt prince and prince , and then the death of one suspends till a new treaty hath confirmed it , unless there is a time certain prescribed by the treaty , to the which the alliance must continue after the death of the prince ; or else they are made from an estate and prince , where the death of the prince does likewise , if not dissolve ; yet at least suspend till a new treaty of confirmation of the precedents , although by the laws of england rex non intermoritur . vii . sometimes alliances are contracted for an enterprize and for one effect only , in the part which the allies are interressed , and such is generally called league ; which in england have been sometimes confirmed by act of parliament . * leagues commonly are offensive , but in effect they tend to attempt against some one , and in the bottom are lodged articles of secresie for the enterprise : and such was that of cambray against the venetians , in which they borrowed the pretext of religion , and the peace of christendom . viii . the ordinary causes for which princes and republiques make leagues , they are either to facilate a conquest , as that that was made between lewis the th . and ferdinand of arragon , for the realm of naples . or to ballance the forces of one that is more mighty , in hindering him that he grow not greater , but arms ought not to be taken , to diminish such a neighbours power , for that fear is uncertain , but prudent leagues may be made in diminishing their power . the english made a lague to succour the hollanders , not only to ballance the growing opulancy of the spanish monarchy , but likewise to encrease her own by the alliance of the dutch. quid sequitur ? again , leagues may be made for the procuring of a general peace , by way of mediation of their neighbours in war ; and such was that league of union propounded by his now sacred majesty , and afterwards concluded betwixt him and the states general of the united provinces for an efficatious mediation of peace between france and spain , his sacred majesty of britain having a prospect to what afterwards happened and of a war , wherein most inevitably the same must involve the most of the princes in christendom in ) to the affecting of which peace , his majesty and the states general , did obtain a promise from the french king to the dutch , to lay down arms , on condition the spaniards would formally and solemnly by a treaty of peace , quit to him all those places and forts together with the chastellenies , and their appurtenances which they by force of armes had taken in , or fortified in the then last years expedition ; or otherwise that the spaniard be brought to transfer to the french all their remainder in the dutchy of luxemburg ( or to the county of burgundy ) together with cambray and cambresis , douay , ayre , st. omers , bergue , st. avinox , fuernes and lynk , with the bailywicks , chastellenies and all other their dependancies , and the french king to restore to the spaniard all places , territories , which they have by armes taken since their enterance into flanders , on condition that the states general do reciprocally undertake and secure to the french , to prevaile with the spaniard to consent to the same conditions , which once effected would ( as was hopt ) initiate the tranquility of , and interest not only of of two warring crownes , but of all other the princes of christendom . to the effecting of which , there were several articles agreed , and likewise it was agreed , that if a peace should happen to be made , his majesty and the states general should become warranties , and a place left for any other prince or state to come into the same , and who should think it their interest to keep the peace of christendom undisturbed , and to restore the low-countries to their tranquillity , there was provision made likewise by the same , for the forces of each of the warrantees to be used against those that should break and violate the same , oblidging them to cease the violence , and repair the party injured . ix . a defensive league , which hath no other benefit but a necessary defence , and in the which mean estates are in a manner equally interessed , last usually longer then an offensive league , which is voluntary , and from the which either of the confederates will easily part when he hath more interest ; so as in ballancing the interest of the one and the other , he that shall find himself accompanied with distrust , and an opinion to be irreconciliable to the common enemy , generally proves the most firm in the league . the wisdom , courage , means and constancy of the prince or state is to be considered ; so likewise of the distance of the places , as well in regard of those with whom they unite , as of those against whom they make the leagues . leagues having no other limitation , but the end of the enterprise for which they were made , have admitted many large debates in cases of accident : for instance , if an enemy shall take the countrey , for the defense whereof the league was made , the question has been whether the confederates be bound to assist him , who hath lost it in the recovery ; some have held , that the defensive did not extend so far : notwithstanding if there were no treaty , which had concerned this conquest , yet it would seem more reasonable to comprehend the recovery in the defensive , if it be general . for as it hath for its end to preserve the allie in his state , and that to attain unto it , the forces must not only remain in the countrey of the allie to attend the enemy , but after denunciation and other acts of hostility done by the enemy , they must enter into his country , to the end to prevent him or divert him from attempting any thing against the allie : the offensive being judged by the aggression , ●…and not by that which follows ; by a stronger reason they ought to enter into the countrey conquered from the allie , for the recovery thereof ; but excuses in this kind proceed from those , who fail in their faith , courage or means to recover . contribution is one of the main ingredients in a league , and is of great difficulty to regulate . it is made either in men or money ; the men are entertained by all parties , or by him only that hath need , or otherwise as the league is . henry the th . † made a league with francis the french king against the emperor maximilian and ferdinand ; for the recovery of millane , which he did , the protection of his neighbours , and reduction of the swisse from the imperial side ; for which he employed the bastard of savoy , the agreement was of reciprocal succour of men if the war were made by land , and of if it were made by sea ; and in all other occasions the french king was bound to assist the king of england with launces , and the king of france with foot , at his charge that had need . so where contribution is concluded for money , there are difficulties that do arise from the person or place where it must be kept , for to deliver it to the hand of the strongest , is not safe , for fear they shall not be able to call him to account , to lay it in a weak place , were to oppose it to the attempt and force of the strongest , or to him that shall first take armes ; but it has been usual , the summe has been advanced , not till after the war begun . xii . leagues concluded by the deputies of the confederates , there sometimes falls out a difficulty who shall ratify and declares himself first : in the league which was made between francis the first , the pope and the princes of italy ; the king refused to ratify until the pope and venetians had ratify'd before him , and in that he so cunningly wrought , that he procured the colleagues to declare and begin the war , whilst that he treated secretly for himself , to the end he might make his conditions with more advantage ; this he declared was for fear those italian foxes should shew him the like . xiii . leagues made for an enterprise , succeed seldom according to the hope of the allies , if the enterprise be long ; for besides the preparations be long , the opinions divers in the pursuit , the resolutions inconstant , the interests of princes or states in a league may change with time , or with the practise of him against whom they are in league , in withdrawing some one of them , or making him to suffer more losse then the rest , for seeing himself ill defended or succoured by his confederate , and that he was in a greater danger to loose then his companions ; he then studies to retire † and to make his accord apart , as did the venetians with the turks , after the losse of cypresse . xiv . the ordinary causes of the rupture of leagues are distrust jealousy , as if one hath had conference with the enemy , without the consent of the rest ; if that which serveth for the safety of one , diminish the safety of the other ; inconstaney , variety , cowardize , division , usurpation without the consent of the others . so if he treats with the enemy , not comprehending the other allies , but as adherents ; as lewis the th . left the league of the venetians , for that they had made a truce with him , and had presumed to name him only as an adherent : by the opinion of bryan , that if all the subjects of england would make war with a confederate prince or republique in league with the king of england , without the assent of the king of england , that such a war was no breach of the league ; and upon the same reason was the resolutions of the judges in the the duke of norfolk's case , where the question was , whether the lord herise and other subjects of the king of scots , that without his assent had wasted and burnt divers towns in england , and proclaimed enemies , were enemies in law , within statut of e. . the league being between the english and scots , and resolved they were , and that the league remain'd . xv. the succours that one confederate must afford another confederate ( according to the laws of leagues ) against confederate , is of a great consequence : three princes allied , the one makes war against the other , and demands succours from the third ; in this case if the treaties of alliance be only for friendship , it is certain he is not bound to give any succours : but if the treaty carries an offensive league , he must succour the most antient allied by a precedent alliance : if the precedent alliances have been made both at one time , he must succour him that is allied in all offensive and defensive leagues : but if the league be offensive and defensive of either side , he ought not to succour either ; but he may mediate a * peace , and cause the difference to be judged by the common allies , which being propounded with a declaration that the refuser ; or having once submitted will not yield to judgment , that he will succour the other , as the swede and swiss , upon severall occasions hath done , notwithstanding in point of state in such occasions they usually ballance their estate , and looking more to safety then justice , they succour him who being enforc't , may weaken the powerful , who is more to be feared ; yet to unjust wars there is no obligation , then certainly he ought to be preferred , who hath a just cause of war. xvi . by the laws of alliances princes may aide particular and common allies , if they be wronged by one of the allies . but he which is not comprehended in the treaty of alliance , cannot be defended against him that is allied without breach of the alliance ; therefore mediation in such cases is the only hopes of ahe oppressed , which not having its effect , if the oppressed put themselves into the protection of the mediator , they then become in the nature of his subjects , and then that prince is oblidged to their succour and defence , even against his allies , and this is by natural right . xvii . by the laws of leagues though the oath binds only the person ; yet the promise binds the successor , for though some do hold that leagues do depend upon the oath as their firmament , though that is not so for the most part of the efficacy of such leagues rests in the promise it self , to which for religion sake the oath is added . hence it is that promises made to a free-people , are in their nature real , because the subject is a permanent matter , although the state or republique be changed into a monarchy ; yet the league remains for that the body i. e. the power is still the same , though the head be changed . and the person is incerted into the agreement , not that the agreement may be personal , but to shew with whom it is made , for if it be incerted into the league that it shall be perpetual , or that it is made for the good of the kingdom , or with the person and his successors , or for a time limited , the same does most apparently demonstrate the thing to be real . however in all leagues which tend to peace , though there may remain somewhat , whereby words of ambiguity may arise ; yet the most pious way of interpreting , hath been to account the same rather real , then personal , for all leagues made for peace or commerce , admit of a favorable construction , leagues defensive have more of favour , offensive of burthen . xviii . a leagues made with princes , although they happen afterwards to be driven out of their kingdoms by their subjects , yet the league remains firm and good , for the right of the kingdom remains with such an unfortunate prince , notwithstanding he hath lost his kingdom : on the other hand , leagues made with the invader cannot be good ; for his cause being unjust , is odious : but if b the people will make him king de facto , and investe him , the question is then out of all controversy ; for then he is become a king regnant , and by the laws of england , if treason by committed against his person , and c after he is beaten out , and the king de jure comes to his crown , the king de jure may punish those traytours with death . the earl of warwick having raised an army in france and flanders , invaded england , and within five or six daies after his landing , king edwards forces betraying him ) the earl became master of the realm , the king flying for protection to his kinsman the duke of burgundy , he kindly in his misfortunes entertained him ; yet while he was in this banished estate , the duke of burgundy renewed the league with the english , it being agreed , that notwithstanding king edwards misfortune , the league remained firm and unviolable between the duke charles of burgundy , and the king and realm of england : so that for edward they should name henry ( who was newly taken out of the tower by the earl of warwick , at his chacing out of king edward ) now the true reason that leagues remain , and are firm , notwithstanding such a change , is , because there goes along with them a tacite condition , viz. of holding their possessions , and therefore the world wondred not , that his late sacred majesty having sworn a league with the king of spain , expresly as he was king of portugal , did notwithstanding receive two embassadors from the then new king of portugal ; and that without being judged either in england or spain to have broken his former oath and league . the duke of guise having formed the league against henry the third , which was that in regard , the king was so cold in the profession of the romish faith , that it was in danger to be extinguisht by the increase which he permitted of the reformed religion ; especially seeing henry the fourth then king of navar , was of that religion , and was to succeed to the crown ; wherefore by the mediation of philip the second of spain , the pope qualified the duke of guise , head of that catholique league , and which in point of government was to set him above the king , avowed him protector of the catholique faith in the kingdom of france . when henry the fourth succeeded the crown , then this league for security of religion was most violent , and the spaniard without , hoped , by nourishing thus the division within , to carry all for himself at last . to avoid which gin , and to answer all , the king chang'd his religion , and negotiated by d'ossat , to be received by the pope as a dutyful son of the church of rome , demanding absolution for what was past , and making large promisses of due obedience for the time to come ; the king of spains interest was that he should not be received , and thereupon he endeavoured to perswade the pope , that king henry did but dissemble with him , and that under this disguise he would easiest ruine the romish religion : notwithstanding this , the cardinal obtained his reception , absolution and benidiction through the many promises and presents which he made to his holyness , whereupon the spaniards designes were in a moment all blown over from france , but fell heavily upon the united provinces which were sorely opprest , for that they apprehended the loss and ruine of their countrey , and thereupon they implored assistance from king henry , who received their ambassadours very gratiously , and gave them assurance of relief : the king of spain , who wanted no good intelligence in the court of france , immediately remonstrates to the pope , that his former inclinations concerning henry's dissimulations did now appear in the face of all the world , and that seeing his holyness had been so credulous , he knew not now whether they should be able to save the catholique faith from being subjected to the reformed religion or no : for whereas the hollanders had revolted from him , only because he resolved to use the true means for the establishment of the romish faith among them , and that now he was in a fair way of reducing them , ( which conduced so much ( by his holiness his opinion ) to the establishment of the romish faith ) henry had taken their party against him in that work : and that at paris he had received their ambassadors to that purpose , although he knew they were his lawful subjects , &c. this startled the pope not a little , who charged d'ossat for having betrayed him , and put the church in danger ; this argument was as subtil on the spaniards side , as changing religion was on king henry's ; and therefore the cardinal was not a little perplext , how to answer it to the advantage of his master ; as also coherently to the considerations of his former reception into the church : but at last he replyed , that his holyness needed not wonder how in reason of state , those different religions might joyn together for political ends , without hazard of altering religion : thus david sought protection of the philistians , and abraham redeemed the sinful sodomites : that he took it to be upon the same ground , that his holyness himself not long before , received a persian ambassador , who was so far from being an heretick , that he never pretended to the name of christian , that it was a plausible argument , which the king of spain used , in complaining of henry's receiving and avowing their ambassador , especially knowing at the same time that they were rebels , and could pretend no right nor tittle separate from his crown : for princes ( quoth he ) when ambassadors are addrest to them , never inform themselves of the rights and tittle of those princes from whom they are sent ; but whether they have possession of the force and power of those places from whence the ambassadors are employ'd , for it would be an endless taske , and require an infallible true history of the world ( which is not to be made by man ) if all the ambassadors before their receptions should be obliged , first to prove clearly to the world the just right by which their masters derive those tittles and jurisdictions , which they assume to themselves . chap. viii . of alliances unequal , and of protection . i. of alliances unequal , as in reference to the acknowledging a superiority or protection in another . ii. of protections by a prince or state voluntary or mercinary . iii. of the duty incumbent on the protected , and the obligation in honour and justice on the protector . iv. of alliances unequal , and of the ordinary causes that may tend to a rupture of the same . v. of the causes extraordinary that may occasion the breach of such alliances . vi. of faith and assurance implicitly discharged by the delivering of hostages . vii ▪ of the differences of leagnes contracted by princes , through force or fear , and private contracts made with private persons by reason of the same viii . ambiguity in words given , occasion to princes to depart from the league , and of the reputation of princes on such occasion preserving the alliance . ix . of the firmness and assurance of alliances whether to be found more in princes , or in reipubliques . x. if one party hath violated the league , whether it be lawful for the other to depart from the same . xi . in the construction of leagues , the thoughts not the words of princes to be considered . xii . of things favourable , things edious , and others of a mixt nature to be used in the interpreting of leagues . . unequal alliance is that which is contracted betwixt princes or states unequal in honour , or in power , with unequal conditions , the acknowledging the other , not for master or lord , but by honour as the more powerful , and the better qualified , and some for protector ; and these treaties are made with those states , which take or give pension , or which put themselves into protection . tribute is payed by the subject , or by him , who , to enjoy his liberty , payes that which is agreed upon to him that hath forced him to do it . but a pension is held voluntary from him that is in protection , or from him that is in all other things equal to the treaty of alliance to hinder the pensioner , that he joyn not with the enemy , as the swiss to the french , or to have aid and succours from him . ii. but that protection is most true and honourable ▪ when a prince or reipublique takes upon him the defense of another , freely without reward , though some , if not all , find it most necessary to ballance honour with profit , from this maxim , that a pecuniary interest oblidges more to succour , then when barely obliged by oath . iii. by the law of protection , he that is protected ows all respect and honour to his protector , against whom if he conspire or attempt , or strayes from his duty , it is lawful for the protector to make better assurance ; nay , if he pleases to make himself master : but then on the other side the protector ought to defend and succour the protected , and use him well ; for otherwise he may withdraw himself from the protection , and seek another . iv. in alliances that are unequal , there are kind of controversies may happen . first , if the subjects of a prince or reipublique , that is under the ptotector of another , have committed any thing against the league . secondly , if the prince or reipublique be accused . thirdly , if the fellows , which are under the protection of the same , prince or reipublique , contend with one another . fourthly , if the subjects complain of their own ruler . to the first , if a fault appear , the prince or reipublique , is bound either to punish the offender , or render him up to the party injured , and see or endeavour that damages may be recovered . but one of the associates in the league , hath no right to apprehend or punish the subjects of his confederate . to the second , the confederate hath a right to compel his confederate to stand to the league , and if he will not , to punish him ; for that one may take satisfaction or revenge of him that hath offended ; and this happens as well amongst those that have no confederation at all . to the third , as in confederacies equal , the controversies are wont generally to be brought before an assembly of the confederates ; that is to say , such as are not concerned in the question , or else before arbitrators , or else before the prince of the association , as a common arbitrator . so on the other hand in a league unequal , it is agreed for the most part , that the controversies be debated before him who is superior in the league . to the last , the confederates have no cognizance . in common affaires out of time of assembly , even where the league is equal , the custom is for him who is chose cheif of the league , to have command over the confederates , according to the speech of the corinthians in thucydides , it becomes them that are princes of the league , not to seek their own particular advantage , but to content themselves with an eminency above the rest , in taking care of the common interest . v. though that the breach of faith be much practised in such affairs ; yet there are few princes found , which have not found a pretext , some have pretended to be circumvented by error ; others by change of affairs have pleaded an excuse , as great wrongs or inevitable loss , and apparent danger of the ruine of their states , which are the causes , wherein some say , that an oath is not obligatory ; the condition , by reason of the oath , being impossible or unjust , to these limitations , some hold they must not keep faith with an enemy of the faith , nor with him that hath broken his , nor with a subject , nor with a thief or pyrat ; certainly if it be not lawful for a man in these cases to keep faith , it is not lawful to give it : if it be lawful to captulate with such men , it is necessary to hold that we promise , that is , ( we presume ) when the word is given by him that may give it , and that they rely upon it . vi. if hostages are taken , he that gives them is freed from his faith ; for that in receiving hostages , he that receives them hath relinquished from the assurance , which he had in the faith of him that gave them ; so where a captain for his prince gives his word without commission , it binds not the prince . vii . some lawyers would judge of treaties as particular contracts , by which means they would stretch the consciences of princes ; for , say they , that as a private man is not bound by that which he hath promised by force or fear , so it ought to take place amongst princes and in treaties which are made betwixt soveraigns , but that is ridiculous , for that were in effect to banish faith from all publique negotiations ; for there is no treaty but is usually made in arms by force or through fear , to loose either life , or goods , or liberty , or the state ; which are causes of just fear , and may shake the most constant . viii . some princes desirous to shew themselves more religious in these ruptures , have taken subject and occasion upon the ambiguity of some clauses in the treaty , or upon equivocation , as charles the fifth did ; or else they seek other occasions , as attempting against those whom their allie is bound to defend ; to the end that drawing him into the field , he may lay the cause of the repture on him . but princes , who respect such treaties with a pious intention of preserving them , alwaies remain constant and firme ; and though occasion may offer it self , by which they might get advantage by the breach ; yet when they remain durable , such respect is afterwards had to their word and honour , that fewer and lesser securities will be demanded of them , then one whose faith is doubted . ix . but assurances in cases of this nature has been found more in reipubliques then in princes ; for though reipubliques have the same mind , and have the same intentions as princes , yet for that they move but slowly , it will cause them to stay longer in resolving : famous is that of the atheneans when themosticles in his oration told them , that he could discover a matter in which the atheneans would reap great advantages in ; but he could not tell it , for fear the discovery would take away the opportunity of atcheiving it : whereupon the atheneans deputed aristides , to whom he should communicate the secret , and with him should consult about the obtaining it , they meeting themosticles demonstrated that it was in the power of the atheneans to make themselves masters of all greece , for the grecian naval army was then in their ports and protection ; whereupon aristides reply'd , the same was a breach of faith : but it was answered , it being for the publique , all considerations of that kind ought to be laid aside ; whereupon aristides being called by the people to give a report , told them , themosticles's advice was exceeding profitable , but dishonest , for which cause the people wholly refused it . x. if one party has violated the league , the other may most certainly depart from it , for the transgression of the articles , be it never so little , makes a breach of the agreement ; unless it be otherwise prevented by condition , which may be , by incerting into the same , † that for every offence it may not be lawful to depart from the league . xi . in all leagues , the thoughts of princes and states are to be considered not what they said ; yet because internal acts are not visible by themselves , it is necessary that somewhat certain should be determined , i. e. reduced to heads or writings : otherwise there would be no obligation at all , for then every one might free himself by affixing on his own words what sense he pleases : hence it is that by the dictates of natural reason , he , to whom any thing is promised , hath a right to compel the promiser , to that which right interpretation suggesteth , for otherwise the matter would have no end . xii . in the interpretation of leagues and truces , there ought to be a very great care had , in regard of the sacredness of them ; therefore in things promised or secured by such leagues , some are favourable , some odious , some mixt , or of a middle nature . those that are most favoured are those whose words tend to peace , not to war ; whose foot-steps leave ever behind , the deep impressions of misery , devastation and poverty , but more especially when such leagues are made for war defensive then otherwise ; but those are called odious , which burden or oppress one part only , or one more then the other , and likewise such as tend to matter of revenge or punishment , or to violate some former acts , or obligations , or the bringing in a change or innovation of what hath been constantly settled , and used before . mixt , as where a change is propounded ; but that is with the sisters of moderation and peace , which are proportionably good , according as the change may be esteemed . — therefore the standard rule , is , that in leagues and treaties not odious , the words are to be taken according to the full extent and propriety of popular use ; and if there be more significations , the largest is best : on the other hand we are not to recur to significations plainly improper , unless otherwise some absurdity or inutility of the agreement would follow : again , words are to be taken ever more strickly then propriety suffers , if it be necessary for the avoyding of inequity or absurdity . but if there be not such necessity , manifest equity or utility in the restriction , we are to stay them within the narrowest bounds of propriety , unless the cirumstances disswade ; on the other hand in leagues or promises odious , even a figurative speech is admitted , to avoid the odium , or burthen , therefore in donation , remission of ones right , dominion or property , they are alwaies to be construed to those things , which were probably thought on , and really intended . so aids and succours promised from one part , only is to be understood to be due at the charges of him who shall acquire them . chap. ix . of treaties of truce and neutrality . i. of treaties , the various sorts . ii. of rules in cases doubtful : iii. of truces amounting to a peace . iv. of the advantages between treaties of truce and peace . v. how preserved and punished in england . vi. of treaties of neutrality , the various sorts . vii . of the advantages of the same . viii . in cases of necessity where he ought to declare , and for whom . i. treaties are either with enemies or friends , or with persons which desire to continue neuters with us , or we with them . the treaties which are made with our enemies , are either for a time , or perpetual . perpetual , as the peace that is made to compose all differences , and the war that is undertaken for conquest , or for reparation of injuries , or to restore the commerce . treaties which are made for a time with our enemies , are called truces ; the which are either general , for all the states of the one or the other prince , for all persons , and for all sorts of commerce : or else they are particular , for certain places , for certain persons , and for the commerce . ii. when any one is bound by alliance not to make peace or truce , without the consent of his allie , and whose agreement seems doubtfull , they set down no prefixed time , but , that it shall continue till he refuse , and some reasonable time ascertained after ; as that which was made betwixt charles the eight , and the king of spain . iii. sometimes a general truce holds the place of a peace , as that of a hundred years . such truces are commonly made betwixt princes that are equal in power , and will not quit any thing of their rights by peace ; and yet desire to live quietly in the state wherein they are , satisfying by this medium , the point of honour . iv. treaties of truce are many times less subject to rupture then a peace , which is made perpetual ; for princes or states that find themselves aggrieved with a treaty that is perpetual , seek out plausible reasons to forsake it , seeing the grievance cannot be otherwise repaired ; but if the time be limited and expired , they may pursue that which they think ought to be granted , and the other may oppose ; and if they have a desire to continue the truce , there is nothing so easy as to renew it . hence it is become a maxim in state , that seeing treaties are grounded on the interests of princes which change with the time , it is necessary to change and settle them at the end of the time , or to break them off : for it is in vain to trust to a bare friendship . a truce is likewise made to advance a peace , and to treat it ; so likewise it is sometimes promoted for the more honest discharge of a league , which is made with some other prince , whom they have accustomed to comprehend therein : so as a peace following it , or a truce not being accepted by him , they take accasion to leave the league , it being not his fault that leaves it , that the war was not ended . and although it seems that a truce cannot by its condition prejudice the pretention in the principal ; yet it is most certain that if he which is chased out of a contentious state , consents , that during the truce , the commerce shall be forbidden to his subjects , he doth wholly stop the gate , * as lewis the th . did in the truce which he made with gonsalve , after the conquest of the realm of naples . in england by the stat. h. . cap. . robbery , spoiling , breaking of truces and safe-conducts by any of the kings liege people , and subjects within england , ireland and wales , or upon the main sea , was adjudged and determined to be high-treason ; but this branch concerning high-treason , is repealed by the stat. of h. . cap. . but by the said act of h. . for the better observation of truces and safe-conducts , conservator induciarum & salvorum regis conductum , was raised and appointed in every port of the sea by letters patents , his office was to enquire of all offences done against the kings truces , and safe-conducts upon the main sea ( out of the counties and out of the liberties of cinque ports , as admirals of custom were used to do . sir john trebiel was committed to the tower , for taking a french ship , and being brought into parliament did there justify the same ; but at last confessed his fault , and begged the kings pardon : † generally all leagues and safe-conducts are , or ought to be of record , that is , they ought to be inrolled in the chancery , to the end the subject may know who are in amity with the king , and who not : who be enemies , and can have no action here , and who in league , and may have actions personal here . sometimes they have been inrolled in the wardrobe , as being matters of state. note ; in all treaties , the power of the one party , and the other , ought to be equal ; nor are they to be held firm till ratified . before the statute when any breach of truces or leagues happened , or was occasioned by the misdemeanours of any of the king of englands subjects , there did usually issue forth commissions under the great seal of england , to enquire of the fringers of the same , and to punish and award satisfaction to the injured . vi. princes who neither love nor hate any thing absolutely , seem generally inclined to neutrality , and in that govern themselves in their friendships , according to their interests ; and reasons of state , in effect is no other but reason of interest . neutrality may be of two sorts ; the one with alliance with either part , the other without alliance , or so much as the least tie to the one or other , which is that which properly may be called neutrality . the first is governed by the treaty of neutrality , the latter by the discretion of the neuter prince , whose carriage ought alwaies to be such , as that he may not give the least glimpse of inclining more to one then to another . vii : the advantages of neutrality , are , that the neuter prince or republique is honoured and respected of both parties , and by the fear of his declaring against one of them he remains arbitrator of others , & master of himself . and as a neuter neither purchases friends , nor frees himself from enemies ; so commonly he proves a prey to the victor : hence it is held more advantage to hazard in a conquest with a companion , then to remain in a state wherein he is in all probability of being ruined by the one or the other . but princes that are powerful , have used generally to preserve a neutrality : for whilst petty princes and states ruin themselves by war , he fortifies himself with means ; and in the end , may make himself judge of their differences . on the other hand , it hath been conceived , that reipubliques that are weak , what part soever they take , it will be dangerous unto them , especially if they are in the midst of two more powerful states then themselves ; but experience hath made it appear to the contrary , that neutrality is more beneficial to a weak prince or reipublique ; so that they that are at war be not barbarous or inhumane ; for although a neutrality does not please either party , yet in effect wrongs no man ; and as he doth not serve , so he does not hurt ; besides his declaration is reserved till the issue of the war , by which means he is not oblidged that by siding with eiher party , to gain or loose by the war. viii . but if the neuter be prest by necessity to declare himself , he must do it for the most powerful of the two parties , following that roman maxime , that either they must make themselves the strongest , or be a friend to the strongest : so they of strasburgh † declared for the empire against the french ; on the other hand , if the neuter sees , that joyning to the weaker , will ballance the power of the stronger , and by this counterpoize , reduce them to reason : the same hath been generally followed upon the maxime , that the safety of states consist chiefly in an equal counterpoize of the one , and the other ; for as the greatness and oppulancy of a prince draws after it the ruin of their neighbours , it is wisdom to prevent it . chap. x. of the immunities and priviledges of ambassadors , and other publique ministers of state. i. of the function of ambassadors and agents generally . ii. of their right and protection by the laws divine and of nations . iii. of precaution , whether the same may be given to such not to come , and attempting against such interdiction , how dealt with , and of punishment of those that shall hurt them by the laws of england . iv. of the several causes that princes or reipubliques may reject such publique ministers of state. v. where ambassadors may be subjected to punishment by the laws of nations . vi. of the proceeding against them by princes & states at this day , according to the practise of nations . vii . of the various proceedings against them by several princes and reipubliques , illustrated in presidents of examples . viii . of the proceeding against them , according to the pactise in england . ix . ambassadors , where they forfeit their priviledge by the laws of england . x. where actions committed by them , though against the known laws , yet oblidges them not to a forfeiture of their priviledge . xi . of the duty of ambassadors in cases civil , and what their office includes for the king and nation , whom they represent . xii . whether the house of an ambassador can be a sanctuary , or whether he may exercise a royal jurisdiction over his servants and vassals ; whether the same proceeds from the laws of nations . xiii . whether the goods of an ambassador may be seized for debt or other contracts . xiv . whether outrages committed by publique ministers of state , can subject them to punishment . xv. of the punishment of those that commit any outrage on them . xvi . some observation of the immunities and government by the laws of venice of their ambassadors . an ambassador and agent is the same thing , if we consider only the function of their charges : only in this they differ ; an agent hath charge to represent the affairs only , but an ambassadors ought represent the greatness of his master , and of his affairs . ii. the right of ambassadors is secured both by the safeguard of men , and also by the protection of the law divine ; therefore to violate this , is not only unjust , but impious too : and as protection is given to the legates of supream rulers by the laws of nations , so by the civil law , there is a protection likewise for provincial legates , and heraulds , &c. this right of legation was originally provided , saith livy , for a forreigner , not a citizen ; yet in civil wars , necessity sometimes makes place for this right besides the rule , as when the people are so divided into equal parts , that it is doubtful on which side the right of empire lyeth , as that unhappy spot of flanders , or when the right being much controverted , two contend for the succession to the throne ; for in this case one nation is reckoned as two , and so was the state of england , when the house of york and lancaster , contended for the crown ; nay , this right of legation hath been preserved that the very messengers of rebels have been protected , as were those of holland by phillip of spain : so great a respect † have nations had in all times to such men , that even pyrats and robbers , who make not a society , nor have any protection by the law of nations , and with whom neither faith nor oath ( as some conceive ) may be kept ; faith being given them , obtain the right of legation , as once the fugitives in the perynean forest. iii. ambassadors may by a precaution be warned not to come , if they dare , they shall be taken for enemies ; but once admitted even with enemies in arms , much less with enemies not in actual hostility , have the protection and safe-guard of the laws of nations ; and therefore their quallity being admitted by safe-conduct , they are to be preserved as princes ; and so it was declared in parliament , where the killing of john imperial , ambassador from the states of genoa , was high-treason , crimen laesae majestatis . * so likewise of a. de walton , the kings ambassador nuncium domini regis missum ad mandatum regis exequendum , who was murdered by one john hill , for which offence it was adjudged high-treason , and accordingly he was drawn , hang'd and beheaded . iv. on the other hand , ambassadors may not alwaies be received , though alwaies they ought not to be rejected ; for there may be cause from him from whom they come , as the roman senate would not admit of the ambassage of the carthaginian , whose army was then in italy ; the king of spain those of holland , and the then pope the ambassadors of henry the d . after the murder of becket arch. bishop of canterbury : so likewise from the very persons that are sent , as theodorus athest , whom lisimachus would not give audience to , and mr. oliver lewis the th's barber , whom they of caunt refused . so likewise where the cause of sending is suspected , as in reference to disturbe the people or intentions rather to sow sedition then to conclude a peace ( if such be their errand ) or not honourable or unseasonable ; as for those assiduous legations which are now in use , they may with very good right be rejected ; for the no-necessity of them appears , by the antient custom whereto they are unknown . the venetian having admitted henry the fourth of france his ambassador , yet they interdicted him † to come with the other ambassadors to the chappel , till the king was reconciled to the church of rome . v. by the laws of nations , only unjust force is kept from the bodies of ambassadors ; for if the laws of nations be broken by him , he is subject to punishment . yet the opinion of nations and men eminent for wisedom , have been doubtful in this point , and presidents on both sides have been avouched , one which seems to refute that position of punishing such ministers of state : the ambassadors of tarquin , who had committed treason at rome , * and as livy observes , were in the state of enemies ; yet the right of nations , as he calls it , prevailed so far as to preserve them , although in a case of hostility : on the other hand , † salust observes , that bomilicar , one of the carthaginian ambassadors , who came to rome on the publique faith , was adjudged guilty , rather ( saith he ) by the rules of equity , then by the laws of nations ; equity , that is the meer law of nature suffers punishment to be exacted where there is found a delinquent , but the laws of nations except the persons of ambassadors ; for certainly their security out-weighs the profit arising from punishment , which may be inflicted by him that hath sent him ( if he be willing ) if unwilling , it may be exacted of him as an approver of the crime . vi. again , as ambassadors are not to render a reason of 〈◊〉 actions to any other , but him by whom they are sent ●…nd it is impossible , but by the reason of various interests and other secrets of state , which pass through their hands , somewhat may be said , which bears a show or face of crime , ( which perhaps may prove otherwise ; ) yet the examining and tracing of the truth , may be of a dangerous consequence , and therefore if the offence be such as may be contemned , it is usually to be dissembled or connived at , or else the ambassadour be commanded to depart the realm ; and if the crime be cruel , and publiquely mischievious , the ambassadors may be sent with letters of request to his master to inflict punishment , according to the offence : so likewise in the precaution of a great mischief , especially publique , ( if there be no other remedy ) ambassadors may be apprehended and executed ; and if they oppose by force of arms , they may be slain . in the bishop of rosses case , an. eliz. the question was , an legatus qui rebellionem contra principem ad quem legatus concitat , legati privilegiis gaudeat , & non ut hostis poenis subjaceat ; and it was resolved , that he had lost the priviledge of an ambassador , and was subject to punishment ; nor can ambassadors be defended by the law of nations , when they commit any thing against the state or person of the prince with whom they reside . and why ambassadors are in safety in their enemies countries , and are to be spared when they commit offences , is not so much for their own or masters sake , but because without them there will never be an end of hostility , nor peace after wars : neither is the name or person of an ambassador so inviolable , either in peace or in time of war , but there may be both a convenient time and a good occasion to punish them , and this standing with the laws of nations . vii . the signiory of venice understanding that certain traytors , who had revealed their secrets to the turk , were fled for protection into the house of the french ambassador at venice , sent officers to search the ambassador's house ; but the ambassador refusing them enterance , the senate commanded certain cannon to be brought out of the arsenal to beat down his house , which when he saw planted , he surrendred up the traytors . ( ) the ambassadors of tarquins , morte affligendos romani non judicarunt , & quanquam visi sunt ut hostium loco essent , jus tamen gentium voluit . ( ) the state of rome , though in case of most capital crimes , exempted the tribunes of the people from question during the year of office. ( ) the ambassadors of the protestants , at the councel of trent , though divulging there the doctrine of the church , contrary to a decree there , enacted a crime equivalent to treason , yet stood they protected from any punishment . it is generally consented by all the civilians , that legis de jure gentium indictum est , & eorum corpora salva sint , propter necessitatem legationis ac ne confundant jura commercii inter principes . ( ) viva , the popes legates , was restrained by henry the second , for exercising a power within his realm , not allowed or admitted of by the king , in disquiet of the state , and forced to swear not to act any thing in praejudicium regis vel regni . ( ) on the other hand , it has been answered , that they are by the laws of nations exempted from regal tryal , all actions of one so quallified , being made the act of his master , or those whom he represents , until he or they disadvow , and injuries of one absolute prince or state to another , is factum hostilitatis , and not treason ; the immunity of whom civilians collect as they do the rest of their grounds from the practise of the roman state , deducing their arguments these examples ; the fabii ambassadors from rome were turn'd safe from the chades , with demand of justice against them only , although they had been taken bearing arms with the ethurian their enemies . titus liv. . dec. ( ) king edward the second of england , sent amongst others a french gentleman ambassador into france ; the king upon this arraigned him as a traytor , for serving the king of england as ambassador , who was his enemy ; ( but the queen procured his pardon . ) ( ) henry the third did the like to one of the popes ambassadors , his colleague flying the realm secretly , fearing timens pelli sui , as the records has it . edward the first restrained another of the popes turbulent embassadors , untill he had ( as his progenitors had ) informed the pope of the fault of his minister , and received satisfaction for the wrongs . ( ) henry the eighth commanded a french ambassador to depart presently out of the realm ; but because he was the professed enemy of the seat of rome . ( ) lewis de prat , ambassador for charles the fifth , was commanded to his house , for accusing falsly cardinal wolsey to have practised a breach between henry the eighth and his master , to make up the amity with the french king . ( ) sir michael throgmorton by charles the nineth of france was so served , for being too busie with the prince of condy his faction . ( ) the popes ambassador at paris was arraigned for practising certain treasons in france , against the king in the parliament of paris , and was there found guilty and ccommitted to prison . ( ) doctor man , in the year , was taken from his house at madrit in spain , and put under a guard to a straighter lodging , for breeding a scandal ( as the condo teri said ) in using by warrant of his place , the religion of his countrey , although he alledged the like permitted to guzman de silva their ambassador in england , and to the turke , no less then in spain . ( ) francis the first king of france , sent caesar tr●…gosus and anthony rincone , ambassadors to the turk , they were surprised by the armies of charles the fifth , on the river poe , in italy , and were put to death ; the french king complained that they were wrongfully murdered , but the emperor justified their death ; for that the one being a genois , and the other a milanois , and his subjects feared not to serve the king his enemy . ( ) henry the eighth being in league with the french and at enmity with the pope , who was in league with the french king , and who had sent cardinal poole to the french king , of whom king henry demanded the cardinal , being his subject , and attainted of treason , sed non praevaluit . ( ) samuel pelagii , a subject to the king of morocco , pretended that he was an ambassador sent unto the states general of the united provinces ; he came to them , and accordingly they did treat with him , afterwards he departed ; and being upon the sea , he did take and spoil a spanish ship , and then came into england ; the spanish ambassador here having received intelligence of the spoliation , caused his person to be seized upon , intending to proceed against him as against a pyrat , and imprisoned him , and upon conference with the lord coke , dordridge , and other judges and civilians , they declared their opinions , that this caption of the spaniards goods by the morocco ambassador , the same is not in judgement of law a pyracy , in regard it being apparent that the king of spain and the king of morocco are enemies , and the same was done in open hostility ; and therefore in judgement of law could not be called spoliatio , sed legalis captio , and a case out of r. . fo . . was vouched , where a spanish mere chant before the king and his councel , in camera scaccarii , brought a bill against divers english-men there in setting forth quod depradatus & spoliatus fuit upon the sea , juxta partes britanniae , per quendam virum bellicosum de britannia de quadam navi , and of divers merchandizes therein , which were brought into england , and came into the hands of divers english-men , naming them , and so had process against them , who came in , and pleaded ; that in regard this depradation was done by a stranger , and not by the subjects of the king ; and therefore they ought not to be punished , in regard that the stat. of h. . cap. . gives restitution by the chancellor , in cancellaria sibi vocato uno judice , de uno banco vel altero ; and by the stat. of ed. . ca. . that the restitution may be made in such a case upon proof made , by the chancellor himself without any judge ; and upon that case it was resolved , quod quisquis extraneus , &c. who brings his bill upon this stat. to have restitution , debet probari quod tempore captionis fuit , de amicitia domini regis ; and also quod ipse qui eum coeperit & spoliavit , fuit etiam sub obedientia regis , vel de amicitia domini regis , sive principis quaerentis , tempore spoliationis , & non inimicus domini regis sive principis quaerentis , quia si fuerit inimicus , & sic coeperit bona , tunc non fuit spoliatio , nec depradatio , sed legalis captio ; pro ut quilibet inimicus , capit super unum & alterum ; the judgement of which case was held to be law , and thereupon the judges delivered their opinions , that the morocco ambassador could not be proceeded against as a pyrat . ( ) in the time of philippe the second of spain , the venetian ambassador in madrid , protecting one bodovario a venetian an offender , that fled into his house , and denying the corigidor or justices to enter his house , where the ambassador stood armed to withstand them , upon complaint made , the ambassador was removed unto another house , until they had searched and found the offendor , then conducting back the ambassador with all due respect , a guard was set upon his house to stay the fury of the enraged people ; the ambassador complaining to the king , he remitted it to the supream councel : they justified the proceedings , condemning bodavario to loose his head , and other the ambassadors servants to the all which the king turned to banishment , and to satisfy the most serene republique , sent the whole process to inego d' mendoza his ambassador at venice , and declaring by a publique ordinance unto that state , and all other princes , that in case his ambassador should commit any offence unworthily , and disagreeing to their qualities and professions of ambassadors , they should not enjoy the priviledge of those officers , but would refer them to be judged by the laws of that prince or states where they then resided , and where they had injured , it was a great and a noble saying . ( ) in the year , don guhernon d'espes was ordered to keep his house in london , for sending scandalous letters to the duke de alica unsealed , and in don bernardino de mendoza , was restrained first , and after commanded away . ( ) the manner of proceeding against them , has been conceived necessary to be that some of the chief secretaries of state were sent to the ambassadors , and by way of advice , that understanding that the common people having received notice of , &c. and that they cannot but conceive a just fear of uncivil carriage towards their excellencies or their followers , if any the least incitement should arise , and therefore for quiet of the state , and securing of their persons , they were bound in love and respect to their excellencies to restrain as well themselves as followers , untill a further course be taken by legal examination , where the aspersion began , the same being in their opinions the best and the only way to prevent the danger , &c. sometimes , if the parliament be sitting , the king acquaints the lords , and then departing , who having had conference with the commons , conclude of a message to be sent to the ambassadors , ( either by requiring an account of the matter or confining of them ) the persons to be sent , the two speakers of both houses , with some convenient number of either , having their maces , or ensigns of offices born before them to the ambassadors gates , and then forborn ; and then requested speech with them , let them know that a relation being made that day in open parliament of , &c. they were deputed from both houses , the great councel of the kingdom , to the which by the fundamental laws of this nation , the chief care of the kings safety , and the publique peace and quiet of the realm is committed ; and that they were no less the high-court of justice , or supersedeas to all others , for the examining and punishing all attempts of so high a nature as , &c. if it carry truth , and having executed their commission , concluded that the houses , to show that reverence which they bear unto the dignity of his master , by their message , they two that never are imployed but to the king alone , were at that time sent , &c. and if the houses shall upon re●…n of their speakers conceive their answer ( if it be a matter that requires it ) are such as may justly deserve th●… being confined , they then make an address to his 〈◊〉 to confine them to their houses , restraining their ●…ure untill the prince or state , whom they repre●… 〈◊〉 ●…cquainted with their offence : and so it was 〈◊〉 ●…n h. . to the popes legates in england , and e. . xi . if a foraign ambassadors , being a prorex commits here any crime which is contra jus gentium , as treason , felony , adultery , or any other crime which is against the law of nations , he looseth the priviledge and dignity of an ambassador , as unworthy of so high a place , and may be punished here as any other private alien ; and not to be remanded to his soveraign but of courtesy . x. but if any thing be malum prohibitum by any act of parliament , private law or custom of this realm , which is not malum in se jure gentium , nor contra jus gentium , an ambassador residing here , shall not be bound by any of them , but otherwise it is of the subjects of either kingdom ; for if a french merchant or spanish merchant trades or imports any prohibited goods , he must at his peril observe the laws of england ; and so it was adjudged pasc. eliz. in the exchequer , tomlinson , qui tam versus henry de vale & ●…l . upon the stat. of h. . ca. . but if an ambassador imports any prohibited goods econtra . in causes civil . xi . the office of an ambassador does not include a procreation private but publique , for the king his master , nor for any several subject otherwise then as it concerns the king and his publique ministers , to protect them , and procure their protection in forreign kingdoms , in the nature of an office and negotiation of state ; therefore their quality is to mediate and prosecute for them or any one of them , at the councel table , which is as it were a court of state ; but when they come to settled courts , which does and must observe essential formes of proceedings , scil . processus legitimos , they must be governed by them : and therefore in the case of don diego serviento de acuna , ambassador leger for the king of spain , who libelled in the admiral court as procurator general , for all his masters subjects , against one jolliff and tucker , and sir richard bingley , for two ships and their lading of divers kinds , of the goods of the subjects of the king of spain generally , and not naming of them adduct ad port de munster , in the preface of the libel generally against them all , and then proceeds and charges them severally thus ; that jolliff and tucker captain pyrate , in alto mare bellico dictas naves aggressi sunt , & per vim & violentiam , took them , and that they were adductae in partes hiberniae , and that they came to the hands of sir richard bingley , and he converted them to his own use , ( not saying where ) and refuseth to render them being required , it was there held that a prohibition should go , for the matter is tryable meerly at the common law , and that such a procuration was not good . don alonso de valesce ambassador from the catholique king , attached tobaccoes at land here , which one corvero , a subject to the king of spain , brought hither , and the ambassador by his libel supposed to belong to his master , as goods confiscated , as all others his goods were , sir john watts the plaintiff in the suggestion , pray'd a prohibition , which was granted accordingly , for the property of goods here at land must be tryed by the common law , however the property be guided ; and it was likewise rul'd , that if any subject of a forreign prince bring goods into this kingdom , though they were confiscate before , the property shall not be questioned but at the common law. don alfonso vers . corvero mich. jac. hob. . hill. jac. upon the like libell by don pedro surega ambassador for spain . xii . whether an ambassador hath jurisdiction over his own family , and whether his house be a sanctuary * for all that fly into it , depends upon the concession of him with whom he resides , for this belongs not to the law of nations † ; and it hath been seen that an ambassador hath inflicted punishment on his own servants and vassals , as the muscovite did here in england ; but for fugitives that fly into their houses , nay , their own servants , if they have greatly offended , cannot be drawn forth by force , without a demand and refusal ; which then done , it is then become as an offence in them . xiii . most certain by the civil law , the movable goods of an ambassador , which are accounted an accession to his person , cannot be seized on , neither as a pledge , nor for payment of a debt , nor by order or execution of judgement , no nor by the king or states leave where he resides ; ( as some conceiue ) for all coaction ought to be far from an ambassador , as well that which toucheth his necessaries as his person , that he may have full security ; if therefore he hath contracted any debt , he is to be called upon kindly , and if he refuses , then letters of request are to go to his master ; † so that at last , that course may be taken with him as with debtors in another territory ; to some this may seem hard , yet kings , who cannot be compelled , want not creditors ; but the lord coke seems to be of another opinion , * for as to contracts and debts that be good jure gentium , he must answer here . xiv . if an ambassador commits any private outrage against one of the princes subjects , with whom he resides , unless it be to defend the dignity of his charge , or of his master , it has been conceived by some not to be justifiable before the prince with whom he resides ; for , say they , there is a great difference between the dignity and authority of the prince in the countrey of another soveraign ; for , say they , he may well retain his dignity , but not his authority : usually injuries of that nature being done , they have admitted debates at a councel of state , where the soveraign , with whom the minister of stare hath resided being satisfied , that reparation ought to be made to the party injured , he hath been ordered or at least requested , to comply with the same . xv. but on the other hand , if any private outrage be committed by the subjects of that prince with whom he resides upon his person , the offenders may be subjected to punishment : and the queen of sweden having made the incomparable grotius ( after he had escaped by providence out of prison , & by a greater from his country-men ) her ambassador for that crown with lewis the th . with whom he resided at paris , coming one day from st. germans , the secretary of ceremonies being in the coach with him , it chanced that in one place as they passed , a great number of people were in the way seeing of an execution , his postillion and coach-man driving boldly through the company the archers then attending the execution with short pieces , ( concerned somewhat angerly that the execution was disturbed ) made after the coach , shot his postillion and coach-man , and through the coach , even through his hat : the matter coming to be examined , the king ordered or of them to be hang'd , but that good man first pardoned them himself , and then obtained the king's . xvi . the republique of venice imployeth generally more ambassadors abroad then any other state , and they are as other princes ; be ordinary and extraordinary ; the commission of the ordinary continueth for years , but he which resides at constantinople is not call'd ambassador , but bailio , residing there perpetually ; and that republique allowes him a greater provision to support his grandeur , then to any other , and by the laws of venice whatsoever he expends is allowed him upon his accounts , without any examination ; the which no other of their publique ministers of state have like priviledge . by the laws of venice there can be no extraordinary ambassador imploy'd , unless they have been ambassadors formerly , and upon their return are strickly examined of their comportment in their legation , and are to discover † what presents they have received from the prince or state to whom they are sent , the concealment of which is of a dangerous consequence . nor may any of their ambassadors receive any preferment * from any other state during their legation : the patriarch of aquilia dyed , and hermolao barbaio being there ambassador for that republique , the pope conferred on him that ecclesiastical dignity , and made him a cardinal , which being known at venice , notwithstanding he was a person of great desert , and had given notice to the senate , rich , well allied , and had good friends , they sent express command that he should resign the patriarchship , otherwise they would take from his father the procuratorship of st. marke , and confiscate all his estate . but if such ambassadors have received any present , guift or reward from any forraign prince or republique , and such ministers of state are thought worthy of retaining the same , such a grace must pass by the suffrage of the senate , to oblidge them more to the benivolence of the republique , then to the bounty of any forraign prince . chap. vii . of the right of delivering persons fled for protection . i. where superiors may become culpables for the crimes of their subjects . ii. of punishment , in whom lodged , and where offences to another prince seem to be excepted . iii. what is meant by the words delivering up , and how construed in divers countreys . vi. to what crimes it can extend to . v. such persons have been refused to be delivered up , and on what reason deny'd . vii . admitting not compellable , whether he ought voluntary . viii . of persons running away with the revenue , wheter to be delivered up by the persons into whose countrey they fled . i. fathers are not bound for the fault of their children , nor masters for those of their servants ; nor princes for the actions of their subjects , unless they become partakers in the crime ; the which may be done in two respects , by sufferance and receipt ; therefore if princes shall suffer their subjects by pictures or libells to abuse another nation or common-wealth , it is the same as if they should authorize it . brutus to cicero , how can you make me guilty ? yes , well enough , if it were in you to hinder it ; but receipt may admit of some further scrutiny . ii. common-wealths being instituted , it was agreed that faults of particulars , which do properly belong to their own society , should be left to themselves and their soveraigns , to be punish't or connived at , as they judged most fit . yet that right is not so absolute left to them , but offences , which tend to the destruction of society or government , whereof treason is the chiefest , may seem to be excepted ; the which if a subject shall commit an act , tending to the subversion of his soveraign's government , the same is an offence that 's subject to an unversal puunishment , i. e. it is to be punished every where , and the governours into whose territory such fly , seem to have a right of prosecuting for the offence : in civil actions , which tend to commerce that supports society , the subject of forraign subjects having justly contracted in their own countrey , may obtain justice in another by a stronger reason it is thought that princes or republiques that have received publique injuries , have right to require punishment for the indignity that is offered them , at least for that which tended to the subversion of their governments . iii. the question is illustrious , opinions grounded on several great presidents have been both waies , produced , generally it hath been held that those kingdoms where the offenders are fled , ought to do one of the two , either punish them according to their deserts being called upon , or leave them to the judgement of the offended state , others the contrary ; most certain it is by the delivering up , is understood , to leave him to the legal judgement of that prince or state , whom he hath offended : and such was the declaration of ferdinando king of spain , who had been often requested by henry the seventh to deliver up edmund de la poole earl of suffolke his subject , then fled for protection to that prince's countrey , but was alwaies refused ; but being continually importuned by promises that he should not be put to death , caused the earl to be delivered up to him , who kept him in prison , and construing his promise to be personal to himself , commanded his son henry after his decease to execute him , who in the fifth year of his reign upon oold blood performed the same : but the malice of that politique prince the father , and the uncontroulable will of the son are presidents , but of small force ; the example of which not long after gave the french king occasion to beware of trusting the latter with a subject of his on the like occasion , for cardinal poole not many years after , coming ambassador from the pope to the french king , they both being then in amity , and henry the eighth in league with the latter , but in enmity with the first , requested to have the cardinal delivered up , but could not prevail , being doubty armed as the ambassador of a soveraign prince ( for such is the pope ) and in the territory of a forreign state. the israelites require of the benjamites to deliver'd up the wicked men , the philistians sampson , cato gave his vote that caesar should be delivered to the germans , for spoiling them without just cause ; nor are nocent persons injured , if they are are either deliver'd up , or punished ; yet does it not thence follow that they must be delivered up or punished : the romans delivered up those that had done violence to the cathaginian ambassadors . iv. but then and as in this last , so in all other the offender must have committed some publique offence , * as treason ; for most certain it extends not to private injuries , because there is no president that ever at a war was begun for such , though they may contribute much , but for those which tends to the subversion or ruine of a countrey , they often have been delivered up ; jugurtha of bocchus in salust , so shalt thou at once free us from the sad necessity of prosecuting thee for thy error , and him for his treason . and by most writers it is agreed , that such offenders must either be delivered up or punisht , the election is left to their choise , into whose territory they are fled ; though some have held , that in case of protection † the sanctuary for such unfortunate persons , princes do make their coutrey an asylum . t. quintus flaminius , sent ambassadors to prusias king of bithinia , for the procuring the delivering up the brave but unfortunate hannibal , who accordingly being seized on , i will now , saies he , deliver the romans of that fear which hath so many years possest them ; that fear which make them impatient to attend the death of an old man : this victory of flaminius over me , which am disarmed and betray'd into his hands , shall never be numbred among the rest of his heroical deeds : no , it shall make it manifest to all the nations of the world , how far the antient roman virtue is degenerate and corrupted ; for such was the nobleness of their fore-fathers , as when phyrrichus envaded them in italy , and was ready to give them battle at their own doors , they gave him knowledge of the treason intended against him , by poyson , whereas those of a latter race have imploy'd flamineus , a man who hath heretofore been of their consuls to practise with prusias , contrary to the honour of a king , contrary to his faith given , and contrary to the laws of hospitality , to slaughter or deliver up his own guest . v. what ever the opinion of those writers have been , the practise of latter ages have seemed to incline otherwise . queen elizabeth demanded morgan and others of her subjects fled into france , that had committed treason against her ; the answer of the french king was , si quid in gallia machinarentur , regem ex jure in illos animadversurum ; sin in anglia quid machinati fuerint regem non posse de eisdem cognoscere , & ex jure agere ; omnia regna profugis esse libera regum interesse , ut sui quisque regni libertates tueatur , imo elizabetham non ita pridem , in suum regnum mountgumerium , principem condaeum , & alios e gente gallica admisisse , &c. and they were never delivered up ; but the like was not returned by the king of scotland , for he promised that he would transmit fernihurst and the chancellor too , if they were convicted by a fair tryal ; the cry of the late royal martyr's blood justly procured some of those regicides to be delivered up by them of holland . vi. most certain it is if war be threatned to a nation or people , if they deliver not up the offender , though perhaps he is innocent , and that such is the malice of his enemies that they know they will put him to death , yet he may be deserted ; especialy if that nation or kingdom is inferior to the others ; but then the same ought not to be done rashly : the italian foot that forsook the unfortunate pompey , before all was lost , being assured of quarter from the victorious caesar , were condemned by most that reported the story of that day . pope alexander ( in that mortal feude becween him and the emperor frederik , who favoured octavian the antipope ) fled disguised to venice , the duke and senate being jealous that the emperor would demand him , sent an ambassy to the emperor to endeavour a mediation and peace , which was no sooner offered , but the emperor break forth into a rage , bidding them go home , saying ; tell your prince and people , that frederik the roman emperor demands his enemy , who is come to them for succour , whom if they send not presently bound hand and foot with a sure guard , he will proclaim them enemies to him and the whole empire , and that there is neitheir alliance or law of nations which shall be able to free them from revenge for such an injury , to prosecute which , he is resolved to overturn all divine and human laws , that he will suddenly bring his forces before their city , and contrary to their expectation , plant his victorious eagles on the market-place of st. marke . this message being faithfully delivered , the senate decreed arms , arms ; and while they were preparing , news was brought that otho , the emperor's son and general of the caesarian fleet , was entered the gulph with gallyes , the most valiant and religious tebastiano cyani resolved to meet him , and having encountred them on the coast of istria , defeated otho and all his naval forces , taking gallyes , otho their admiral and the rest either burnt or distroyed ; he returned in triumph for venice , and not long after frederik became converted , that heaven fights the batailles for the innocent , and on his knees begg'd pardon of the pope . lewis the th . of france , required by ambassadors of phillip duke of burgundy , the delivery up of sr. oliver de la marche ; who being a burgundian , had wrot ( as was conceiv'd ) somewhat against the claim of the french to several territories , upon a publique audience at lisle they were answered by duke phillip , that oliver was steward of his house , a burgundian by birth , and in no respect subject to the crown of france ; notwithstanding if it could be proved that he had said or done any thing against the kings honour , he would see him punished according as his faults should deserve . but admitting that such an innocent person ought not to be delivered up , whether he is bound to yield himself , by some it is conceiv'd he ought not , because the nature of civil societies , which every one hath entered into for his own benefit , doth not require it , from which it follows that such persons are not bound to that by right , properly so called , it doth not follow , but in charity he seems bound to do it , for there be many offices not of proper justice , but of love , which are not only performed with praises , but also cannot be omitted without blame ; and such indeed is the act of such a persons voluntary yielding up himself , preferring the lives of an innocent multitude before his own . cicero for p. sextus , if this had happened to me sailing with my friends in some ship , that pyrats surrounding us should threaten to sinck us , except they would deliver me , i would rather have cast my self into the sea , to preserve the rest , then to bring my friends either to certain death , or into great danger of their life : the request of the noble strafford is fresh in our memories . vii . but whether such an innocent person may be compelled to do that which perhaps he is bound to do , may be a question ; rich men are bound by the precept of mercy to give alms to the poor ; yet cannot be compelled to give : it is one thing when the parts are compared among themselves ; another when superiors are compared to their subjects , for an equal cannot compell his equal : but unto that which is due by right strickly taken ; yet may a superior compell his inferior to things which vertue commands ; in a famine to bring out provisions they have stored up , to yield him † to death that deserts his colours , or turns coward to mulct those that wear excessive apparel : * and the like phocion , pointing to his dear friend nicocles , said , things were come to that extreamity , that if alexander should demand him , he should think he were to be delivered up : it hath seem'd that such an innocent person might be deserted and compelled to do that which charity requires ; but the late royal martyr seem'd of another opinion , when he came to dye , in the case of the british proto-martyr strafford . viii . persons that have wrong'd or defrauded kings of their revenue , especially in england , upon letters of request to those princes , whether they have fled , have been delivered up . some florentine merchants of the society of the striscobaldi , being made collectors and receivers of the kings customs and rents in england , wales , ireland and gascoigne , running away with those moneys , together with all their estates and goods for rome , the king sent his letters of request to the pope , desiring that they might be arrested , their persons and goods , and sent over to satisfy him the dammages he and his subjects had sustained by them , promising not to proceed against them to the loss of their limbs and lives . upon which letters the pope seized on their goods , and not long after the king writ for the seizing of their persons , for answering of other frauds and injuries . the like was done for one anthony fazons , who had received l. of this kings moneys , and running away with it to lorraine , the king writ to the same duke , desiring that search might be made , and his person seized upon in every place within his territories , till he should satisfy the said pounds . chap. xiii . of contribution pay'd by places deuter , to both armies in war. i. considerations general , touching the same , and the chief matters that are objected by those that scruple thereat . ii the case stated generally in the question propounded to our saviour of paying tribute to caesar. iii in the payment of contribution to an enemy , what is necessary to be distinguisht in the beginning of a war. iv. of a second distinguishment drawn out of the first , of such payments , when a war is actually formed . v. where a man payes , but mislikes the cause , whether excusable , the war not yet actually formed in the place . vi. where a country is fully possest , whether payment then is lawful . vii . of the state of those that live on frontiers , their condition considered as in reference to procure their peace by contributions . viii . of interdiction by him to places from whom saith is owing , contribution notwithstanding being pay'd , whether the same creates an offence in them . ix . of the genuine construction of such interdictions according to the true intention of the same . x. of the impunity and punishment that such innocent offenders may be subjected , in case of being questioned for the contempt by their right governours . i. the most excellent grotius having most incomparably treated on , and cleared all the important objections against a just war , together with the incidents of the same , yet this one main of contribution or paying to both armies , whether lawfull , he has not touched in any other words but these , quod sub tributo utrique part●…●…raestando factum due in belgico , germanico , bello nu●…●…dimus ; estque id consentaneum mori veteri indorum : † ●…d so cites a saying in diodorus siculus , * of the peace that those people maintained in their possessions by reason of such contributions , but to many persons that instance of this without further scrutining , proves insufficient ; for that there are many who not finding this liberty in their consciences , unnecessarily choose rather to give up their 〈◊〉 to restraint and to abandon their whole means of subsistance in this world , both for themselves and their children , ( which ought not fondly to be done , unless we would be worse then infidels , as st. paul saith ) they ground their resolution on this reason , that they know not whether the moneys they give may not furnish to the destruction of many innocents , and perhaps the just magistrate ; yea , and the total subversion and ru●…n of their countrey , liberty and religion : and therefore though men give and bestow what they please with their own , yet in such cases they may not ; therefore it may not be impertinent for to examine whether thes be necessary scruples in themselves , and such as admit of no exception of liberty , or whether those scruples be reasonable , or indeed meer scandal . ii. the scribes and pharisees sought two waies to entrappe our saviour ; one was as if he had blasphemously taught a new religion , and a new god , ( viz. himself ) they hoped the people would be provok't to stone him for this , according to the hebrew law : * the other was , to bring him within the compass of treason , as if he could not lead great multitudes after him , without trayterous designs ; but this gin failed too , because the multitudes which followed him , was alwaies ready to defend him . however , when he was at hierusalem , where the roman troops and praetor were , they thought they had him sure , by propounding this subject to him : is it lawfull to pay tribute to caesar ? which was as much as to say , we , who are descended from abraham , and are the peculiar people , to whom god hath given the large priviledges of the earth at home , to bath our selves in rivers of milk and honey , to have full barns and many children ; yea , that god himself will be adored in no other place of the world but at this our hierusalem , and that abroad we should triumph over the barbarous and uncircumcised world by virtue of that militia ; which he never ordered for any but our selves , how are we then in duty or conscience to submit now to the ordinances of the uncircumcised romans ? or what right can he have to exercise supream jurisdiction over us , the priviledged seed of abraham , by levying of taxes on our estates and lands , which god himself laid out for us , by which means the emperor and senate hold this very temple in slavery , and insult over our very consciences and religion , by defiling our very sacrifices with the mixture of impure blood ; which as they are the price of our blood , and a tribute far above caesars , ( payable in no other place but this temple , which god himself built ) so our blood ought not to seem too dear to be sacrificed for the liberty of these ; and though the roman state could pretend , yet what can this caesar pretend ? every man's conscience knows that it was but the other day he usurpt over the senate , in which resides the true jurisdiction of rome ; and if that were otherwise , yet how can he pretend to a title , unless poyson be a pedigree or violent usurpation , a just election , by which he who is but the greatest thief in the world , would now pass for the most soveraign and legislative prince ? how then are we in conscience oblidged to pay tribute to this caesar ? though those lawyers thought in their consciences that they were not to pay it , and that our saviour likewise , as jew , thought so too ; yet they supposed he durst not say so much in the crowde ; nor yet deny it by shifting it off with silence , left the roman officers should apprehend him : but when our saviour shewed them caesar's face upon the coyn , and bad them render to caesar that which was caesar's , and to god that which was god's : his answer ran quite otherwise , not as some would have it , that by a subtility he answered not to the point proposed , for then the sense of the whole text would sound very ill in such tearms , viz. if there be any thing due to caesar , pay him it , and if any thing is due from you to god , then pay it likewise . this had been a weakening of god's right for caesars , and to have left a desperate doubting in a necessity : 't is beyond all cavil that our saviour's opinion was positive for paying of tribute to that caesar ; because de facto he did pay it , and the plain reason of it appears evidently in this his answer : caesar's face was upon the coyn , that is to say , caesar by conquest was in possession of that coyn , by possessing the place where he oblidged them to take it ; coyning of money being one prerogative of soveraign power . † iii. but to come more close to the question whether contribution may lawfully be pay'd , perferre & inferre bellum ; the one is active , and properly at the beginning of a war , and in a place where yet no war is , and where its cause only , and not its effects can be considered ; in this case every thing ought to be very cleer for warrant of a man's conscience , because of the calamities which he helps to introduce , and is in some manner the author of : the other is passive , and there where war or the power of war is actually formed , which is the case of this discourse . iv. secondly , we are to distinguish betwixt that which cannot be had , nor the value of it , unless we actually give it , and that which may be taken by the law of war whether we contribute i or no. v. most certain it is though a war be not yet actually formed in a place , yet a scrupling conscience , which likes not the cause , may be excused in contributing to it in this one case , viz. if some number of men able to take what they ask , demand ( with an armed power ) the payment of a certain some to be imployed in war , then in such a case , man , whom we suppose , may pay it as a ransome for his life , or give it as a man doth his purse , when he is surprised * in the high-way ; because to this man it is as much as if the whole countrey were possest with an armed power : so several dutchies and segniories dependant on the empire , do in the present war between them and the crown of france , pay contribution at this day . but if the person or country be not for the time in the full possession of him , whose cause he scruples at , and that he or they have not a probable fear of extream danger , nor as probable assurance that without his help , the thing demanded nor its value can be taken from him or them ; then there 's little excuse remains for the act , because the very act ( which his conscience dislikes ) participates more of action then of passion . vi. but where a man or city is fully possest by an invading power ( be the same just or unjust ) from whom he or they cannot fly , nor remove their substance ; most certain the payment of contribution is no gift , no more then he , ( as above ) who with his own hands being set upon by pyrats or robbers , puts his purse into their hands ; for the law calls not that a gift † nor excuses the party from taking it : and though the parties may imploy the same to the destruction perhaps of innocents , and the like ; yet that is an action out of their power , that give as far as winds and tempests are , to which two , as we contribute nothing , so we cannot be scrupulous in our ●…iences concerning their bad effects ; nor is the same ●…ut to the canon law* , ( which teaches us hu●… , and the imitation of all their vertues , ) and ●…fore persons , whose lives are innocent and harmless , will not have subjected to danger or plunder , which hardly can be avoided without contribution or tribute . vii . again , those that live on frontiers , whose condition are more ticklish and deplorable , because they are not fully possest nor taken into the line of either party these live as it were in the suburbs of a kingdom , and enjoy not the security or priviledges of others , yet such persons may lawfully contribute to both , for though they be but partly possest by one , and by the other , in respect of their suddain abandoning them , yet both parties have the power of destroying them wholly , wherefore those former reasons which justify those fully possest , do also acquit the payments of those , for their conditions here is more calamitous , seeing they are really but tenants at will , exposed to a perpetuall alarm , and that both parties wound one the other , only through their sides , as those this day that are scituate between france and germany , for being perhaps neuters in the war , they are in that case by the law of arms to shew themselves equall to both , † in permitting of passage , in affording provisions for the armies , in not releiving the beseiged . viii . nor can the interdiction of him , to whom such ow faith and obedience any waies create the same an offence , since the declared wills of our governors cannot make all those of our acts sins , when we obey or submit to that power , which is against our wills , ( as much as against theirs , and it may be with more of our misery ) hath divested them of the power of their rights , and deprived us of the power of their government ; and by the laws of war , they who have overcome , should govern those whom they have overcome ; and therefore whatsoever is exacted by the conquerors , may justly be pay'd by the conquered . * and since princes by their commands cannot change the nature of humane condition , which is subject naturally to those fore-mentioned changes ; it would seem exceeding hard to oblidge us to almost morall impossibilities , and though those politicall commands were as laws , yet doubtless they ought not to be oblidging ; but according to the legislative rule , which is cum sensu humanae imbecillitatis , this is that which usually is call'd the presumptious will † of a governor , or the mind of a law : for in extream necessity it is to be presumed that both their wills proceed from the rigour of what they have declared , rather then by holding to that which is their supposed right , introduce certain miseries and confusion : without receiving any benefit thereby to themselves . nor could they of utrick , and others of the conquered cities in holland , abandoned afterwards by the french , entirely preserved from destruction , be condemned by their confederates , for the sums by them promised to the enemy for the preservation of the same . neither are such commands or interdictions without their sense and profit , though they be not positively obeyed , * for thereby governors shew to all the world , that they renounce no part of their right , no , though it be there where they cannot exercise any part of their just power . ix . now the true intentions of such commands or interdictions is , that the enemy should not by any means be assisted or strengthned ; but if such prohibitions should be obeyed ; nay at such a time , when they and all their substance are absolutely possest by the enemy ; most certain such commands dash against themselves , and the one countermands the other ; for if they refuse to submit in such a case , then they do that which advantages their enemies : because at that time they will take all , whereas in case of submission they ask but a part . x. in all wars there are alwaies some , by whose dissassections , enemies gain more then by their complyance , just as physitians do by distempers . and although , by after variety of successes , the just governor should recover that place , which so submitted to the power of their enemies , and for that reason should punish those that were plyable to extream necessity ; yet it follows not upon that , that they who so conformed , sinned , or did that which was absolutely unlawfull ; for we well know that reason of state oft calls for sacrifices , where there is no fault to expiate : ostrocisme and jealousy make away those , who are known to deserve most , but in strickt right ( which is the term of this question ) the just governour ought to look upon them as more unfortunate then faulty . chap. xiv . of the naval military part . i. the advantage that princes have by a good commander . ii. the love that naturally proceeds from the mariners to those that are valiant and generous . iii. princes in prudence ought not to listen too much to the complaint against commanders . iv. of the faults generally considered in soldiers and mariners . v. of the punishments that generally wait on such offenders : vi. of drunkeness , swearing , and other such sort of impieties , not to be suffered in fleets . vii . spies , if lawfull to use them by the laws of nations , but being deprehended are to suffer death ; and how they are to be dealt withall by the laws of england . viii . it is not lawfull for a friend or neuter to relieve an enemy , and persons so offending , how punisht . ix . ships taken as prize , the ship papers and other matters concerning the same , are to be preserved . x. of things taken and acquired in war , how the right of them becomes vested in the captors , and how that is to be understood by the law of arms. xi . to steal the cables or other furniture of the king of england's ships , how punishable at this day . xii . ships surrendred and voluntarily surrendred , how to be dealt with , and whether those that shall resist it , if entered by force , whether quarter may be refused . xiii . ships of war generally ought not to be yielded , but if entered or disabled , whether they may not accept of a quarter , standing with the oath called sacramentum militare . xiv . of obeying orders , the same ought to be punctually to be follow'd ; and if broken , though the act succeeds well , whether the same subjects not the actor to punishment . xv. of the obligation incumbent on commanders and souldiers to behave themselves valiantly , and the right of slaying an enemy , where lawfull . xvi . ships how oblidged by the law of arms for the assistance of one another , and of the duty of those that have fleets under their convoy . xvii . an enemy beaten ought to be pursued , and how far it is lawfull to slay such flying with their lives in their hands by the laws of arms , and how the reeking sword ought to be governed . xviii . persons exempted from the sword , by the laws of nature , nations , civil and canon , and by the municipall laws of some countries . xix . mutining how esteemed , valued and punished at this day by the practise of armies , and by the laws of england . xx. whether it be lawfull to decoy the subjects souldiers , or mariners of an enemy , to forsake his prince or general , and to bring over his men , ships , or arms , and where by law they may be received ; and how such deserters may be punished by the laws of nations , and of england . xxi . of seducers , message carriers and decoyers of souldiers , how to be handled by the law of arm. xxii . of those that shall disobey or strike their superiour officers , how punishable . xxiii . of mutening , and those that shall act in the same how punished , though they have a just cause of complaint : xxiv . of the care incumbent on commanders and masters of the great ships , as in reference to their safety , and the punishment of wilfull burning and destroying them . xxv . of the general offences at sea , how punished . xxvi . court martials how erected , and what operation their judgements have , and upon whom . xxvii . judges , and advocates , power as in reference to give an oath , and the admiral 's power how limited to the punishing of offences . xxviii . of maimed souldiers and mariners , and the provisions that the law makes for them at this day . xxix . of triumphs . i. an excellent generall is an evidence of the fortune of a prince , and the instrument that occasions the happiness of a kingdom ; and therefore when god makes choise of a person to repair the disorders of the world , or the good of a particular state , then is his care shewed in the furnishing him with necessary principalls to undertake great matters ; the thoughts are put in his soul by that eternall commander to execute , he troubles and confounds his enemies , and leads him as by the hand ●…o victories and triumphs : and one of the greatest expedients whereof he serves himself for this purpose , is to raise unto him excellent men , both in courage and conduct , to whom he communicates his care , and who help him to bear the weight of affairs . alexander had never conquered asia , or made the indies to tremble , but for ephestion , parmenio and clytus ; caesar gained many a bataill by his lievtenants , and the fairest empire of the world , which ambition and evil of the times had divided into parts , was reduced under the dominion of augustus , by the valour of agrippa ; justinian triumphed over persia , and destroyed the vandalls in affrica ; and the goths in italy , by the aid of bellisarus and narcete : and it is most certain , that noble commanders are the glory of their princes , and happiness of the people ; on the other hand , base cowardly and treacherous generals , are the shame of the one , and the dispair of the other . ii. hence it is that souldiers and mariners draw their lines , either of love even to the mouth of canons with a good generall , or mutiny and hate to the main yard end against one that is bad , for to obey them who are not their soveraigns when they do them hurt , when they insult and are cruell in cold blood , and base , cowardly , or treacherous in bataill , is a sad necessity for them , and a hard essay of patience ; yet must they be obeyed , and the souldiers and mariners must not rebell or repine , but submit till the soveraign redresses the misfortunes . iii. again , princes ought not to listen too much to the mutinous demands of the crew , or any others , whose ambition watches their ruin , whereby to conceive anger against this commanders ; for it is easier to purge out the choler and discontent that is got under the hatches , then to provide commanders of conduct , courage and faithfulness to govern their expeditions . bellisarius , that most excellent commander , who had no other crime then his reputation , and was not culpable , but that he was powerfull , having conquered persia , subdued africa , humbled the goths in italy , lead kings in triumph , and made appear to constantinople somewhat of old rome , an idea of the antient spendor of that proud reipublique ; after all his eminent services , this great person is abandoned to envy , a suspition ill grounded distroys the value of so many services , and a simple jealousy of state wipes them out of the memory of his prince : but he rests not there , for the demeanor had been too gentle , if cruelty had not been added to ingratitude ; they deprive him of all his honours , they rob him of all his fortune , they take from him the use of the day and light , they put out his eyes , and reduce him to the company of rogues , and the miserable bellisarius demands a charity , even that bellisarius the chiefest general of his age , and the greatest ornament of the empire , who after so many victories and conquests , accompanied with so high and cleer a virtue , and in the midst of christendom , reduced to so abject and low a misery . nor was this cruel and hasty reckoning of justinian let slip , without a cruel payment , for narces , who was as well a successor in merit as in authority to bellisarius , who having notice of a disdain , conceived likewise against him upon a single complaint resolved not to expose himself as a sacrifice to their malice ; and therefore better to shake off the yoak then stay to be oppressed , soon spoiled the affairs of justinian , for the goths revolted , and fortune would not forbear to be of the party , which narces follow'd , nor to find the barbarian , where so brave a captain was engaged . therefore , not one or many faults are to be listened to against commanders , but patiently heard and redressed , but not to disgrace or loose them ; for such having committed a fault , yet being admonished by love , may endeavour by future services to make recompence by some noble exploit ; but disgraced , become instruments often of danger and ruin to their superiors . iv. souldiers and mariners faults are either proper to themselves , or common with others . those are common with others , which other men fall into , and are corrected with like ordinary proceeding as other crimes of like nature , as man-slaughter , theft , adultery , and such like . those are proper , which do properly appertain to the naval military part , and are punished by some unusuall or extraordinary punishment : as are these , not to appear at the over musters or calling over the ship , to serve under him , he ought not to serve , to vage or wander long from a ship-board , although he return of his own accord , to forsake his fleet , squadron , ship , captain , commander , or officer , to leave his standing to fly over to the enemy , to betray the fleet , squadron or ship , to be disobedient to superior affairs , to loose or sell his arms , or steal another man's , to be negligent in his officer's command or in his watch , to make a mutiny , to fly first out of the battle , and the like , which are very frequently set forth in the titles of the digest and code of military affairs , and other like titles , which accompany them . arrian , who wrote the life of alexander the great , observes , every thing is counted an offence in a souldier , which is done contrary to the common discipline , as to be negligent , to be stubborn , to be slothfull . v. the punishment wherewith souldiers and mariners are corrected , are those corporall punishments , or a pecuniary mulct or injunction of some service to be done , or a motion or removing out of their places , and sending away with shame . by capital punishment , is understood for the most part death , or at least beating with cat with nine tayls , as they commonly term it , ducking , wooden-horse , gauntlet , and such like , unless happily it be pardoned , either for the unskilfulness of the mariner or souldier , or the mutiny of the crew or company , being thereto drawn by wine , wantonness , or for the commiseration or pitty of the wife and children , of the party offending ; all which is left to the discretion of the lord admiral and others the supream commanders , or captains . vi. it is necessary that in armies and fleets all manner of impiety should be prohibited , especially that of swearing and cursing ; for such are sins so foolish , that they unawares help men into damnation , rendering men worse then beasts ; by how much the more they court that vanity of sin without any of the appendant allurements ; which other vitious actions are accompanied with ; the same in the end teaching men to disavow god in their discourse and actions , by their intemperate and inconsiderate invoking him in their oaths : against such , as also against those that shall give themselves up to cursing , execrations , drunkenness , uncleanness , or other scandalous actions in derogation of god's honour , and corruption of good manners , fynes and imprisonment or such other punishment may be inflicted on them , by a court marshall , * which is now reduced to the forfeiture of one day's pay ; but for drunkenness , the same extends not to commanders , or other commission and warrant-officers ; for they upon conviction before the admiral shall be rendred uncapable of their command . and a lyar convicted a ship-board , shall be hoisted upon the main-stay with braces , having a broom and shovel tyed to his back , where he shall continue an hour , every man crying , a lyar , a lyar , and a week following he shall clean the ship 's head and sides without board , according to the antient practise of the navy , if he receives greater wages then for an able sea-men , then half a day's pay . vi. by the laws of nations , spies may be sent to survey the enemy's force , fleet , station or squadron , and make discovery of whatsoever may give advantage to the persons sending : so moses and joshua did into the holy land ; on the other hand being deprehended , they are to be put to death , as apian saith ; and by the laws of england , if any officer , souldier or mariner , in actual service , and in pay in his majesties fleet , or any other person in the same , shall give , hold , or entertain any intelligence to or with any king , prince or state , being enemy to , or any person in rebellion against his majesties his heirs and successors , without leave or authority from the king , admiral , vice-admiral , or officers in chief of any squadron , they are to suffer death : now , the bare receipt of a letter or message from an enemy , will not make a man subject to the penalty of this article ; and therefore the subsequent article explains the precedent , in which it is provided , that if any inferiour officer , mariner , or souldier shall receive any letter or message from any king , forreign prince , state , or potentate , being an enemy , or on their behalf , and if such person does not reveal the same within hours , having opportunity so to do , and acquaint the superior commander with it , such person is to suffer death ; so likewise , if such superior officer , or mariner being acquainted therewith by an inferior officer , mariner or other , such superiour officero , cmmander or mariner , in his own person , receiving a letter or message from any such enemy or rebell , and shall not in convenient time reveal the same to the admiral , vice-admiral or commander of the squadron , shall suffer the like pain of death , or such punishment as a court marshal shall inflict : now , spies are put to death sometimes justly by those that manifestly have a just cause of warring by others , by that licence which the law of war granteth ; nor ought any person to be moved with this , that such being taken , are punished with death ; for that proceeds not from their having offended against the law of nations , but from this , that by the same law every thing is lawfull against an enemy : and every one as it is for his own profit , determineth either more rigourously or gently , but that spies are both lawfull and practable , there is no question ; for at this day by the generall instructions of fleets , there is alwaies out of each squadron some frigots or ships appointed , to make discovery of the enemy , and upon sight to make saile , and to stand with them ; in order to the taking cognizance of their force , as well ships of war as fire-ships , and in what posture they lay ; which being done , those detecting frigots are to speak together , and to conclude on the report they are to give , which done , they return to their respective squadrons ; such ships in such service are not oblidged to fight , especially if the enemies force exceed them in number , or that they shall have an apparent advantage . viii . again , it is not lawfull for any , be he friend or neuter , to relieve an enemy , much less for a souldier or mariner in pay , to supply him that conspires the destruction of my countrey , is a liberality not to be allowed of , he is to be accounted an enemy that supplies the enemy with necessaries for the war ; and therefore by the laws of war is so to be esteemed ; and by the laws of england , if any person in the fleet relieve an enemy or rebell in time of war , with money , victuals , powder , shot , armes , amunition or any other supplies whatsoever , directly or indirectly , shall suffer death . ix . ships being assaulted and taken as prize , all the papers , charter-parties , bills of lading , pass-ports and other writings whatsoever that shall be taken , seized or found aboard , are to be duely preserved , and not torn or made away ; but the very originalls are to be sent up entirely and without fraude to the court of admiralty , or to the commander appointed for that purpose , in order to the condemnation of the prize , upon pain of the captors loosing their share in the prize , and also subject to such other punishment as a court marshall shall think fit . x. the right of taking of spoil was approved of god , within these naturall bounds which have been already mentioned , is further evinc't by the appointment that god in his law concerning the acquisition of empire over the conquered , after refusal of peace , all the spoil thereof shalt thou take unto thy self , and thou shalt eat the spoil of thine enemies , which the lord thy god hath given thee : hence it is , that things taken from the enemy , presently become theirs that take them by the law of nations , and such acquisition is called natural , for not any cause , but the naked fact is considered : and thence a right springeth ; for as the dominion of things began from natural possession and some print of the same remains in the things taken in the land , the sea , and the air ; so likewise of things taken in war ; but though this gives a right to the captors , yet that must be understood to the soveraign or to the state that imploy'd them , and not to themselves ; but if they have any share of the prize , the same proceeds by the condiscention or grant of the soveraign , which may be enlarged or abridged as occasion serves ; and therefore by the laws of england , ships of war having a prize , the goods and all manner of lading is to be preserved , till adjudication shall pass ; but that is to be understood , where the ship voluntarily yields : but ships whom they shall assault , and take in fight or prize , the pillage of all manner of goods and merchandizes ( other then arms , ammunition , tackle , furnitures or stores of such ships ) as shall be found by the captors , upon or above the gun-deck of the ship , become theirs * ; but this is to be understood where such prize may lawfully be possest ; for there are times when such are not to be meddled with , and therefore it is against the rules of war in fight , if some of the enemies ships are there disabled ; yet those ships that did so disable them , if they are in a condition to pursue the enemy , cannot during the fight take , possess , or burn such disabled ships , and the reason is , least by so doing some more important service be lost , but they are to wait for such booty , till the flagg-officers shall give command for the same . vluzzali , king of algier , in the famous bataill of lepanto , having behaved himself very valiantly there against the christians , that he destroy'd severall of their galleys , and others , he took amongst the rest the galleys of pietro bua of corsa , of the prior of messina , and ludovico tipico of trahu , and benedeto soranza , the which he towed after him before the battle was compleated ; but that getting proved the loss both of the one and the other , for the turks out of coveteousness of the plunder , or otherwise thronging into them , accasioned their taking fire , in which the victors in those flames became victimes , and after follow'd the totall rout of the ottoman power . xi . it is almost impossible , that in ships of war , which in these daies carry so considerable force in men , but there will be some amongst them that have heads of knavery , and fingers of lime-twigs , nor fearing to steal that from their prince , which is applicable only for the good of their countrey ; such sort of night-wolves when caught , are to be severely punished ; and therefore to steal or take away any cables , anchors , sails , or any of the ships furniture , or any of the powder or arms , or amunition of the ship , subjects the offender to the pains of death , or to such other punishment as the quality of the offence shall be found by a court martial to deserve . xii . by the ninth article , forreign ships or vessels taken as prize , without fighting , none of the captains , masters or mariners being forreigners , shall be stripped of their cloaths , or in any sort beaten , pillaged , or evil entreated ; and the persons so offending being oblidged to render double damage : this law most expresly doth not extend to those that obstinatly shall maintain a fight ; for most certain , by the law of arms , if the ship be boarded and taken , there remains no restriction , but that of charity ; and if a ship shall persist in the engagement , even till the last , and then yield to mercy , there has been some doubt , * whether quarter ought to be given to such ; ( for they may ignorantly † maintain with courage a bad cause : ) but captives and those that yield or desire to yield , there is no danger ; now , that such may be justly killed , there must be some antecedent crime , and that such a one as an equall judge , would think worthy of death ; and so we see great severity shew'd to the captives and those that have yielded ; or , their yielding on condition of life not accepted if after they were convinced of theinjustice of the war , they had nevertheless persisted with hatred or cruelty , if they had blotted their enemies name with unsufferable disgraces , if they had violated their faith or any right of nations ; as of ambassadors , if they were fugitives : but the law of nature admits not talliation , * except against the very individuall person that hath offended ; nor doth it suffice that the enemies are by a fiction conceived to be as it were one body ; though otherwise by the laws of nations , and by the laws of arms , and at this day practised , in all fights , the small frigots , ketches and smacks , are to observe and take notice of the enemies fire-ships , and to watch their motion , and to do their best , to cut off their boats , and generally the persons found in them are to be put to death , if taken , and the vessel if not taken , distroy'd ; and the reason why the extreamity of war is used to such , is that by how much the mischief is the greater by the act of such men if executed , by so much the punishment is aggrivated if taken , and quarter deny●…d them by law of war. xiii . every captain or commander upon signall † or order of battle , or view , or sight of any ships of the enemy , pyrat , or rebell , or likelyhood of engagement , they are to put all things in the ship in fit posture for a fight , as the breaking down the cabins , clearing of the ships of all things that may impede the souldiers , in the preserving the ship and themselves , and endamaging the enemy ; and every such commander or captain are in their own person , and according to their place , to hearten and encourage the inferiour officers and common men to fight valiantly and couragiously , and not to behave themselves faintly , under the disgrace of being casheered , and if he or they yield to the enemy , pyrat or rebell , or cry for quarter , he or they so doing , shall suffer the pains of death , or such other punishment as the offence shall deserve . now , though souldiers or mariners having oblidged themselves faithfully to serve in the expedition or navy ; yet that is to be understood no further then his or their power to do his utmost in his or their quality , for though the obligation for the service be taken in the strickest tearms of undergoing death and danger , yet it is to be understood alwaies conditionally as most promises are , viz. if the action or passion may be for that fleet or princes advantage ; and therefore if the fleet of squadron is beaten , and the ships are diasabled , and left scarce without any to defend them , now the souldiers or mariners remaining can do no more for their prince then die , which indeed is to do nothing at all , but to cease for ever from doing any thing either for him or themselves , in those streights ; therefore it is not repugnant to their oath called sacramentum militare , to ask quarter or strike , and having begg'd a new life and taken it , they are bound in a new and just obligation of fidelity to those to whom they were bound to kill few hours before ; neither can the prince or generall expect by virtue of their former obligation to him , they should kill any in the place where the quarter was given : however , this fidelity hath not its inception , from the time of taking quarter ; but when the battle is over , and that time which is termed cold blood ; for without all controversy , if a ship be boarded , and the quarter is given , yet if while the fight lasts , the persons captives can by any possibility recover their liberty and ships , they may by the law of arms justly acquire the same . and since impunity is granted to such unfortunate desertors , yet it must be apparently evident and fully proved , that they were reduced into a condition beyond all hope in the battle : and therefore the feet that forsook the unfortunate pompey before the field was lost , were justly condemned for the breach of the roman discipline and law of armes : and therefore the article hath not positively declared death only , but added , or such other punishment as the offence shall deserve , which provision leaves the action to be judged and punished by a councel of war , who know best what 's to be done in cases of that nature ; however , a base or cowardly yielding ; or crying quarter , is to be punished with death , and that without mercy . xiv . the obeying of orders hath in all ages been in mighty esteem : chrysantus , one of cyrus's souldiers , being upon his enemy , withdrew his sword , hearing a retreat sounded ; but this comes not from the external laws of nations ; for as it is lawfull to seize on the enemie's goods , so likewise to kill the enemy , for by that law the enemies are of no account ; but such obedience proceeds from the military discipline of several nations : by the romans , it was a law † noted by modestinus , that whosoever obey'd not his orders , should be punisht with death , though the matter succedded well ; now he also was supposed not to have obey'd , * who out of order without the command of the general entered into any fight . for if such liberty were lawfull either stations would be deserted , or ( licence proceeding ) the army , fleet , or squadron would be engag'd in unadvised battles , which by all means is to be avoyded . m. capello , a venetian gentleman of an antient extraction , having the charge of the guarding the venetian gulph , * met with the barbary fleet , whom he so assaulted , that he burnt and took divers of them ; among the rest the admirall galley of algier , ( a vessel of vast higness ) which he brought with him away , and she remains at this day a trophy in the arsenall of venice ; the service although noble and honourable , and such as brought renown to the reipublique , yet in regard it was an action exceeding his commission , he was adjudged to punishment : ( but his great merit and alliance , preserved his life ) such an exact obedience that seignory expects to be pay'd to her orders , be the success never so glorious : and by the eleventh article , every captain , commander , and other officer , seaman or souldier of any ship , frigot or vessel of war , they are duely to observe the commands of the admirall or other his superior , or commander of any squadron , as well for the assaulting , and setting upon any fleet , squadron , or ships of the enemy , pyrat or rebells , or joyning battle with them , or making defence against them , as all other the commands of the admirall , or other his superior commander , the disobeying of which subjects them to the pains of death , or such other punishment , as the quality or neglect of his offence shall deserve . xv. again , every captain and all other officers , mariners and souldiers of every ship , frigot , or vessel of war , shall not in time of any fight or engagement , withdraw or keep back ; but on the other hand , they are to come into the battle , and engage , and do their utmost endeavour to take , fire , kill , and endamage the enemy , pyrat or rebell , and assist and relieve all other his confederate ships ; and if they shall prove cowards , they are to be dealt with as cowards ought by the law of arms , which is to suffer death : but circumstance of things may make alteration of matters , therefore there is added or other punishment , as the circumstance of the offence shall deserve , or a court martiall think fit . there are some offices to be done , even to them from whom you have received an injury ; for revenge and punishment must have a measure ; and therefore the issues of the roman wars were either milde or necessary ; now when killing is just in a just war , according to internal justice may be known by the examining the causes or end of the war , which may be for the conservation of life and members , and the keeping and acquiring of things usefull unto life ; now in the assaulting of ships , it happens that one is slain on purpose or without purpose ; on purpose no man can be slain justly , unless either for just punishment , as without it we cannot protect and defend our life , our goods , our countrey , &c. that such punishment may be just , it is necessary , that he who is slain , have offended , and that so much as may be avenged with the punishment of death in the sentence of an equall judge , be expected : now we must note between full injury and meer misfortune of●…en intercedes some mean , which is as 't were composed of both ; so that it can neither be called the act of one knowing and willing , nor meerly the act of one ignorant or unwilling . this distinction by themistius , is fully illustrated ; you have made a difference 'twixt an injury , a fault , and a misfortune ; although you neither study plato , nor read aristotle , yet you put their doctrine into practise ; for you have not thought them worthy of equall punishment , who from the beginning perswaded the war , and who afterward were carryed with the stream , and who at last submitted to him , that now seem'd to have the highest power ; the first you condemned , the next you chastised , the last you pitty'd : mos●… certain to spare captives or prisoners of war , is a command of goodness and equity ; and in histories they are often commended ; who when too great a number prove burdensom or dangerous , chose rather to let them all go then to slay them , or detain them , though for ransoms ; as the last flemish wars with england , so for the same causes , they that strike or yield up themselves are not to be slain , ( though there is no provision made by covenant . ) in towns besieg'd it was observed by the romans , before the ram had smitten the wall , caesar * denounceth to the advatici , he would save their city , if before the ram had touched the wall , they yielded ; which is still in use in weak places , before the great guns are fired ; in strong places before an assault is made upon the walls ; † and at sea , by firing or guns , or hanging out the bloody flagg , according as the instructions are , however , till there be an absolute yielding or quarter cry'd by the law of armes , as well as by the above mentioned article , every commander and souldier is to do his utmost , to take , fire , kill and endamage the enemy , or whatsoeuer may tend thereunto . xvi . by the law of arms , he deserves punishment who doth not keep off force that is offered to his fellow souldier ; and though it hath been conceived , that if there be manifest danger , that he is not bound to come into his relief : for such commanders may prefer the lives in his own ship , before those in another ; yet that suffices not for every souldier by the law of arms , is not only bound to defend , but likewise to assist and relieve his companion : now companions are in two respects , either those that are in actual service with such souldiers , or those that are not , but only committed to their protection or convoy , which are to be defended and guarded at the same peril and charge that a fellow souldier is ; and therefore all ships that are committed to convoy and guard , they are diligently and carefully to be attended upon without delay , according to their instructions , in that behalf : and whosoever shall be faulty therein , and shall not faithfully perform the same , and defend the ships and goods in their convoy without either diverting to other parts or occasions , or refusing or neglecting to fight in their defence , if they be set upon or assailed , or running away cowardly , and submitting those in their convoy to hazard and peril , or shall demand or exact any money or other reward from any merchant or master , for conveying of any such ships or other vessells belonging to his majesty's subjects , shall be condemned to make reparation of the damage to the merchants , owners , or others , as the court of admiralty shall adjuge , and also be punished criminally according to the quality of their offences , be it by pains of death or other punishment , according as shall be adjudged fit by that court martiall : now , those ships that are not under convoy but ingaged in fight , are faithfully to be relieved ; and therefore if a squadron shall happen to be over-charged and distressed , the next squadron or ships are to make towards their relief and assistance upon a signal given them ; which is generally given in the admiralls squadron by a pendant on the fore-top-mast head of any flagg-ship in the vice-admiralls squadron , or he that commands in chief in the second place , a pendant on the main top-mast head , and the reer-admiralls squadron the like : but these signalls sometimes change , according to the wisedom and resolution of the admirall . again , ships that are disabled by loss of masts , shot under water , or the like ; so as they be in danger of sinking or taking , the distressed ships generally make a sign by waft of their jack and ensigns , and those next to them are bound to their relief ; but yet this does not alwaies hold place , for if the distressed ship is not in probability of sinking , or otherwise encompassed with the enemy , the releiver is not to stay under pretence of securing them , but ought to follow his leader and the battle , leaving such lame ships to the stern most of the fleet ; it being an undoubted maxime , that nothing but beating the body of the enemy can effectually secure such disabled ships . xvii . it is not enough that men behave themselves valiantly in the beating of an enemy , for that is not all , but the reducing of him into a condition to render right either for damage done , or to render that which is right ; which cannot well be done without bringing him to exigences and streights ; and therefore if the enemy , pyrat , or rebell be beaten , none , neither through cowardize , negligence , or dissaffection , ought to forbear the pursuit , and those of them flying , nor ought such either through cowardize , negligence or disaffection , forbear the assisting of a known friend in view , to their utmost power , the breach of which , subjects the offenders to the pains of death , or at least such punishment as a court marshall shall think fit . empires are got by arms , and propagated by victory ; and by the laws of war , they that have overcome , should govern those they have subdued : hence it is that generalls having compleated a conquest in a just war , and in chase or otherwise have taken the ships or goods of the enemy , have absolute power over the lives , estates , ships and things that they by force of arms hath acquired , by the laws of nations . but yet in such conquests where the reeking sword knows no law , that is they are done impune , without punishment , because co-active judges do grant them their authority ; † but yet such power may be exorbitant , from that rule of right called virtue ; and therefore by the law of war captives may be slain , yet what law forbids not , modesty prohibits to be done . hence it is that generals do often restrain that power of killing ; for though such prisoners of war do fight for the maintenance of an unjust cause , and although the war is begun by a solemn manner ; yet all acts that have their rise from thence , are unjust by internal injustice ; so that they who knowingly do persist in fighting , † yet ought they not alwaies to be slain , according to that of seneca ; cruel are they , saies he * , that have cause of punishment , but have no measure : for he that in punishing goes further then is meet , is the second author of injury ; and the principal reason why mercy is often shew'd , is , for that souldiers of fortune offend not out of any hatred or cruelty , but out of duty . xviii . again , generals in the measure of killing , look no further commonly then the distruction of those who by force of arms oppose them , and though ships or cities are taken by assault , the which by the laws of war subjects every individual to the mercy of the conqueror ; yet children , women , old men , priests , schollars and husband-men are to be spaired ; the first by the law of nature , according that of camillus , we have armes , saies he , not against that age which even in taking cities is spaired , but again●…t armed men , and this is the law of arms amongst good men ; by which we are to note that by the words good men , as is observed , † to mean the law of nature for strictly by the law of armes , the slayers of them are without punishment . now , that which hath place in children alwaies that have not attained the use of reason , for the most part prevails with women ; that is unless they have committed something peculiarly to be avenged , or do usurp manly offices , as flinging of stones from the walls * pouring down burning pitch , and brim-stone , and the like be-tuminous stuff , firing of guns and the like , for it is a sex that hath nothing to do with the sword , that are capable of that clemency . the like for old men , whom papinius observes , are not to be slain ; so for ministers of sacred things , even barbarous nations , have had them in reverence and preservation ; as the philistins enemies of the jews , did to the colledge of prophets , whom they did no harm , and with those priests are justly equalled in this respect , they that have chosen a like kind of life as monks and penitents , whom therefore as well as priests , the canons following in naturall equity , will have spared , * to these are deservedly added those that give themselves to the study of good learning and sciences useful to mankind , be it in universities , or other publique schools or colledges . to these are added tradesmen , † so likewise merchants , which is not only to be understood of them that stay for a time in the enemies quarters but of perpetual subjects , for their life hath nothing to do with arms , and under that name are also contained other work-men and artificers , whose gain loves not war , but peace . again , captives and they that yield , are not to be slain , for to spare such is a command of goodness and equity , sayeth seneca ; * nor are hostages to be destroy'd , according to that of scipio ; who said , he would not shew his displeasure on harmless hostages , † but upon those that had revolted , and that he would not take revenge of the unarmed , but the armed enemy : 't is very true , by the law of arms , if the contract be broke for which they became hostage , they may be slain , that is , the slayer is without punishment : but yet some * conceive the slayer is not without sin , for that no such contract can take away any man's life , that is , i suppose an innocents life ; but without controversie , if those that become hostage be or were before in the number of grevious delinquents , or if afterwards he hath broken his faith given by him in a great matter , the punishment of such may be free from injury . xix . where offences are of that nature as they may seem worthy of death , as mutiny , and the like , &c. it will be a point of mercy , because of the multitude of them to remit extream right , according to that of seneca † , the severity of a general shews it self against particulars , but pardon is necessary where the whole army is revolting , what takes away anger from a wise man , the multitude of transgressors ? hence it was that casting of lots † was introduced that too many might not be subjected to punishment . however , all nations have generally made it a standing rule in the punishment of mutineers as neer as possible , to hunt out the authors , and them make examples of * . and therefore by the article , if any man at any time when service or action is commanded shall presume to stop or put backwards or discourage the said service and action , by pretencee of arrears of wages or upon any pretence of wages whatsoever , they are to suffer death ; and indeed the same ought to be without mercy , by how much the more they may raise a mutiny at a time when there is nothing expected but action , and the shewing the most obsequious duty that possibly may be ; the breach of which may occasion the dammage of the whole fleet , and being of such dangerous consequence , ought severely to be punished : so likewise the uttering of any words of sedition or mutiny , or the endeavouring to make any mutinous assemblies upon any pretence whatsoever , is made death : and the very concealors of any trayterous and mutinous practises , designs or words , or any words spoken by any to the prejudice of his majesty or government , or any words , practises , or designs tending to the hinderance of the service , and shall not reveal them , subject them to such pains and punishments as a court marshal shall think fit . and whereas in no case of the offences committed against any of the articles for the government of any of his majesties ships of war , within the narrow seas , wherein the pains of death are to be inflicted , execution of such sentence ought not to be made without leave of the lord admiral ; this of mutiny is totally excepted , for such may be executed immediately . xx. it is not lawful for princes or states to make of their enemies traytors , or to desert the service of their prince , or to bring over their ships , ordinance , provisions or arms ; for as it is not lawful for any subject to do the same , so likewise to tempt him ; for he that gives a cause of sinning to another , sins also himself ; but if a man will voluntarily without any other impulse , then his own , bring over the ships or armies , or deserts the service of his prince , to serve another ; this , though a fault in the desertor , is not in the reciever . we recieve a fugitive by the law of war , ( saith celsus * ) that is , it is not against the law of war to admit him who having deserted his princes part , elected his enenemies ; nor are such to be rendred , except it shall be agreed , as in the peace of lewis the th . * however such sort of gamsters , if caught , are to be severely punished ; and therefore it is provided , that if any sea captain , officer , or sea-man that shall betray his trust , or turn to the enemy , pyrat or rebel , or run away with their ship or ordinance , ammunition or provision , to the weakning of the service , or yield the same up to the enemy , pyrat or rebel , shall be punished with death ; so likewise if any shall desert the service or the employment , which they are in a ship-board , or shall run away or entice any other so to do , they are subject to the like pain of death . and by the law of nations , such desertors that run away from their colours or fleet before peace proclaimed and concluded , all persons of that prince from whom they fled , have a right indulged to them to execute publique revenge . xxi . by the law of nations , † spyes may be sent to view and survey the enemies force , fleet , station , and make discovery of whatsoever may give advantage to the persons sending , as is mentioned above ; but being deprehended , they are to be put to death : and therefore if any person shall come from or be found in the nature of spies , to bring any seducing letters or messages from any enemy or rebel , or shall attempt or endeavour to corrupt any captain , officer , mariner , or other of the navy or fleet , to betray his or their trust , or yield up any ship or ammunition , or turn to the enemy or rebel , shall be punished with death . xxii . souldiers and mariners ow all respect and duty to their superior officers ; and therefore when they are in anger , they ought to avoyd them ; but above all not to quarrel with , or give them any provoking language : and therefore by the law of arms , a souldier who hath resisted his captain , willing to chastise him , if he hath laid hold on his rod , is casheer'd , if he purposely break it , or laid violent hands upon his captain , he dyes : * and by the laws of england if any person shall presume to quarrel with his superior officer , he shall suffer severe punishment ; and if he strikes him , shall suffer death , or otherwise as a court marshal shall adjudge the matter to deserve † . xxiii . and though mariners and souldiers may have just cause of complaint , as that their victuals or provisions are not good , yet must they not mutiny or rebel , whereby to distract or confound the whole crew ; but must make a civil and humble address to their commander , that the same may be amended ; and if the case be such , that the commander cannot redress the same , by going to port to supply the exigencies , without detriment of the fleet ( as if ready to engage , or the like ) they must like men and souldiers bear with the extreamity , considering that it is better that some men should perish , nay , the whole crew in one ship , then the whole fleet ; nay , perhaps the whole kingdom be destroyed : and therefore if any in the fleet find cause of complaint of the unwholsomness of his victuals , or upon other just ground , he shall quietly make the same known to his superior , or captain , or commander in chief , as the occasion may deserve , that such present remedy may be had , as the matter may require ; and the said superior or commander is to cause the same to be presently remedied accordingly ; but no person upon any such or other pretence shall privately attempt to stir up any disturbance , upon pain of such severe punishment , as a court martial shall think fit to inflict . xxiv . and as the law doth provide that there be no waste or spoil of the kings provision , or imbezlement of the same ; so likewise that care be taken , the ships of war neither through negligence or wilfulness be stranded , split or hazarded , upon severe penalties . in fights and when great fleets are out , there are generally instructions appointed for all masters , pilots , ketches , hoyes , and smacks , who are to attend the fleet , and to give them notice of the roads , coasts , sands , rocks , and the like , and they have particular stations allotted them , and orders given , that if they shall find less water then such a proportion , they then give a signall as they are directed to give , and continue their signalls till they are answer'd from the capitall ships . but in time of fight , they generally lay away their head from the fleet , and keep their lead , and if they meet with such a proportion of water as is within their directions , they are to give such signal as they recieve orders for , and stand off from the danger ; but the wilful burning of any ship or magazine-store of powder , ship-boat , ketch , hoy or vessel , or tackle , or furniture thereunto belonging , not appertaining to an enemy or rebel , shall be punished with death . xxv . there are other faults often committed by the crew , the which the law does punish , as a quarrelling a ship-board , using provoking speeches tending to make quarrel or disturbance a , murthers , wilful killing of any man b , robbery , theft c , and the unnatural sin of sodomy and buggery , committed with man or beast , all which , and all other faults and misdemeanors are punished with death , or according to the laws and customs in such cases used at sea d ; and when any persons have committed any of the offences particularly mentioned in the stat. of car. . cap. . and contained in the articles or any others , and for the which they shall be committed , the provost marshal is to take them into custody , and not suffer them to escape e , and all officers and sea-men are to be aiding and assisting to officers for the detecting and apprehending of offenders . touching the punishments that the roman generals used to their souldiers , when they were at a court marshal found faulty , they were commonly proportioned according to the offence committed : sometimes they were easy , of which sort were those which only brand the souldier with disgrace ; others were those that came heavy on the person or body ; to the first belonged a shameful discharging or casheering f a mariner or souldier from the army , and generally lookt on as a matter of great disgrace , which punishment remains at this day for offences as well in england , as in most parts : a second was by stopping of their * pay , such souldiers which suffered this kind of mulct , were said to be aere diruti , for that aes illud diruebatur in fiscum , non in militis sacculum ; the which is and may at this day be inflicted , especially on such as shall wilfully spoil their arms , and the like sort of offences : a third was a sentence enjoyn'd on a souldier to resign † up his spear , for as those which had atchieved any noble act , were for their greater honour , hasta pura donati , so others for their greater disgrace were inforc'd to resign up that military weapon of honour : a fourth sort of punishment was , that the whole cohort , which had lost their banners or standards , either in the fields or at sea , were inforc'd to eat nothing but barley bread , being deprived of their allowance in wheat , and every centurion in that cohort had his souldiers belt or girdle taken from him , which was no less disgrace among them then the degrading ( among us ) one of the order of the garter : for petty faults they generally made them stand bare-footed before the generall 's pavilion , with long poles of foot in length in their hands , and sometimes in the sight of the other souldiers to walk up and down with turfes on their necks , sometimes carrying a beam like a fork upon their shoulders round the town ; the last of their punishments , was , the opening of a vein or letting them blood in one of their arms , which generally was inflicted on them who were too hot and bold . the great judgments were to be beaten with rods , which was generally inflicted on those who had not discharged their office , in the sending about that table called tessera , wherein the watch-word was written , or those who had itoln any thing from the camp , or that had forsaken to keep watch , or those that had born any false witness against their fellows , or had abused their bodies by women , or those that had been punished thrice for the same fault , sometimes they were sold for bond-slaves , beheaded and hang'd : but the last which was in their mutinies , the punishment fell either to lots , as the tenth , twentieth , and sometimes the hundredth man , who were punished with cudgelling , and with these punishments those in england have a very near affinity , as cleansing the ship , loosing pay , ducking in the water , beaten at the capsons head , hoisted up the main yard end with a shovel at their back , hang'd , and shot to death , and the like . xxvi . the admiral may grant commissions to inferior vice-admirals or commanders in chief of any squadron of ships , to assemble court martials , consisting of commanders and captains , for the tryal and execution of any of the offences or misdemeanours which shall be committed at sea ; but if one be attainted before them , the same works no corruption of blood or forfeiture of lands , nor can they try any person that is not in actual service and pay in his majesty's fleet and ships of war. but in no case where there is sentence of death , can the execution of the same be without leave of the lord admirall , if the same be committed within the narrow seas ; yet this does not extend to mutiny , for there in that case the party may be executed presently . all offences committed in any voyage beyond the narrow seas where sentence of death shall be given upon any of the aforesaid offences , execution cannot be awarded nor done , but by the order of the commader in chief of that fleet or squadron , wherein sentence of death was passed . xxvii . the judge advocate hath power given by the words of the statut , to administer an oath in order to the examination or tryal of any of the offences mentioned in the stat. of car. . cap. . and in his absence , the court marshall has power to appoint any other person to administer an oath to the same purpose . this statut enlarges not the power and and jurisdiction of the admiral any further , then only to the above mentioned offences in no case whatsoever , but leaves his authority as it was before the making of this statut. nor does it give the admiral any other or further power to enquire and punish any of the above-mentioned offences , unless the same be done upon the main sea , or in ships or vessels , being and hovering in the main stream of great rivers , only beneath the bridges of the same rivers nigh to the seas , within the * jurisdiction of the admiralty , and in no other place whatsoever . xxviii . as souldiers and mariners for the honour and safety of the realm , do expose dayly their lives and limbs , so the realm hath likewise provided for them , in case they survive and should prove disabled or unfit for service , a reasonable and comfortable maintainance to keep them ; the which the justices of the peace have power yearly in their easter sessions to raise by way of a taxe , for a weekly relief of maimed souldiers and mariners . the maimed souldier or mariner must repair to the treasurer of the county where he was prest , if he be able to travel ; if he was not , then to the treasurer of the county where he was born , or where he last dwelt by the space of three years ; but if he proves unable to travel then to the treasurer of the county where he lands . he must have a certificate under the chief commander , or of his captain , containing the particulars of his hurt and services . the allowances to one not having been an officer , is not to exceed ten pound per annum ; under a lievtenant — , a lievtenant — — . till the mariner arrives at his proper treasurer , they are to be relieved from treasurer to treasurer , and when they are provided for , if any of them shall go a begging or couterfeit certificats , they shall suffer as common rogues , and loose their pensions : over and above this provision , his sacred majesty hath provided a further supplyment for his maimed mariners and souldiers disabled in the service●… , which is issued out of the chest at chatham , and constantly and duely pay'd them ; and for his commanders , officers and others that served aboard , he , of his royal bounty , hath given to those that bear the character of war , and purchase the same by their fidelity and valour , a pious bounty called smart-money , over and above their pay. xxix . the wisedom of the romans was mightily to be commended , in giving of triumphs to their generals after their returns , of which they had various sorts ; but the greatest was when the general rid in his chariot , adorned and crowned with the victorious laurel , the senators with the best of the romans meeting him , his souldiers , ( especially those who by their valoor had purchast coronets , chains and other ensigns of reward for their conduct and courage ) following him : but what alas ! could these to the more sober represent , any other but horror since , the centers from whence the lines were drawn , could afford nothing but death , slaughter and desolation on those who had the souls and faces of men ; and if it were possible that that blood which by their commissions was drawn from the sides of mankind , and for which they made those triumphs could have been brought to rome , the same was capable of making of a source great as their tiber ; but policy had need of all its stratagems to confound the judgement of a souldier by excessive praises , recompenses and triumphs , that so the opinion of wounds and wooden-legs might raise in him a greater esteem of himself , then if he had an entire body . to allure others something also must be found out handsomly , to cover wounds and affrightments of death ; and without this caesar in his triumph , with all his garlands and musick , would look but like a victime : but what sorrow of heart is it to see passionate man , a ray of divinity , and the joy of angels , scourged thus with his own scorpions ? and so fondly to give himself alarums in the midst of his innocent contentments , as they of holland but yesterday in the midst of their traffique and recreations did ( by the denying his sacred majesty his right , even that right the which his ancestors had with so much glory acquired , ) pul on their heads a war , which that mighty re●…publique by their greatest industry and wisedom hath not been yet able to quell ( the colerickness of war ( whereby the lustfull heat of so many hearts is redoubled ) stirs up the lees of kingdoms and states , as a tempest doth weeds and slimy seedment from the bottom to the top of the sea , which afterwards driven to the shoare , together with its foam , there coverts pearls and pretious stones : and though the canon seems mad by its continual firing , and the sword reeking hot by its dayly slaughters , yet no good man doubts but they even they will wheather out those storms , & in the midst of those mercyless instruments , find an inculpatatutela , who love justice , exercise charity , and put their trust in the great governour of all things . chap. xv. of salutations by ships of war , and merchant men. i. of salutation , how esteem'd by some in this later age . ii. of the same pay'd in all ages as an undoubted marke of soveraignty of this empire . iii. of those seas where this right is to be pay'd to the king of england's flag . iv. in what manner the king of england holds this right , and by whom to be pay'd . v. of those that shall neglect or refuse to do the same , how punisht and dealt withall . vi. where his majesty of great britain's ships are to strike their flagg , and where not . vii . of the saluting of ports , castles , forts , how the same is to be done , and on what terms . viii . of ships of war their saluting their admiral and commanders and chief . ix . of ambassadors , dukes , noblemen , and other persons of quality , how to be saluted coming aboard and landing . x. the admirals of any forraign nation , if met withall , how to be saluted and answered . xi . of the men of war or ships of trade of any foraign nation , saluting his majestie 's ship of war , how to be answered . xii . of the saluting of his majestie 's own forts and castles , and when the salute cease . xiii . of the objection that seems to be made against the necessity of such salutations . xiv . why kingdoms and states attributes the effects not the cause of rights to prescription . xvi . that kingdoms and reipubliques ought not to be disordered for the defect of right , in presumption , and the objection in the § . answer'd . xvii . the inconveniency of war , and the justifique causes of the same . xviii . of the causes not justifiable in war. xix . of moderation , and the utility of faith and peace . i. as reforming powers in all ages , made it their chiefest work to take down the great colossues , and whatever else might be ombragious in the excrescences of civile pompe ; so we had some in this age , who , by a new art of levelling , thought nothing could be rightly mended , and they planted unless the whole piece ravelled out to the very end , and that all intermediate greatness between kings and them , should be crumbled even to the dust , where all lying level together as in the first chaos , spades ought even to be put into the hands of those who were heretofore adorned with scepters , all outward tokens of honour and esteem , which even from the first institution of society seemed by an uninterrupted stream to be continued down to posterity , ( even amongst the most barbarous nations ) was by them totally deny'd ; the hand , the hat , the knee ( being no other but outward signs of an inward respect ) being esteemed equal with idolatry ; but that unhappy brood , to whom whatsoever was crooked seemed streight , and what was dark to them appears light , are now not to be accounted men , with whom the question may admit of a debate whether salutation is innocent , necessary and praise-worthy , since nothing of reason can be found in the foundation of their religion , honesty or conscience . — therefore this discourse is directed to men : ii. first , it is evident by what hath been said , that the british seas before the roman conquest , ever belonged to the isle of great britain , they alwaies claiming and enjoying the sole dominion and soveraignty of the same , which afterwards accrued to the romans by conquest , and from them translated with its empire to the succeeding saxon , danish and norman successors , and in all the reigns of those princes there was alwaies some markes of soveraignty pay'd , wherein the right of the same was evinc't and acknowledged . iii. now those seas which this salutation or duty of the flagg are to be pay'd , are the four circumjacent seas , in which all vessels whatsoever are to pay that duty , according to the custom of the same , and the ordinance of king john : how far this right is payable , appears in the fourth article in the peace made lately between his majesty and the states general of the united provinces , in these words : — that whatever ships or uessels belonging to the said united provinces , whether uessels of war or other , or whether single or in fl●…ts , shall m●…t in any of the seas from cape finisterre to the middle point of the land van staten in norway , with any ships or uessels belonging to his majesty of great britain , whether those ships be single or in great number , if they carry his majesty of great britain ' s flagg or jack , the aforesaid dutch uessels or ships shall strike their flagg and lower their top-sail , in the same manner , and with as much respect as hath at any time , or in any place , been formerly practised towards any ships of his majesty of great britain , or his predecessors by any ships of the states general , or their predecessors . iv. now , his majesty holds not this salutation or respect , by virtue of the league or of the article , but as the same is a right inherent to the empire of great britain ; and therefore in the first part of the article it is declared in these words : — that the aforesaid states general of the unithed provinees , in due acknowledoment on their part of the king of great britain ' s right , to have his flagg respected in the seas hereafter mentioned , shall and do declare , and agree — now this right extends and subjects all nations whatsoever that shall pass through those seas , and between those places meeting with any of his majesty's ships of war , bearing his flagg , jack , or cognizance of service , to strike their top-sail , and take in their flagg , in acknowledgement of his majesty's soveraignty in those seas , and if any shall refuse to do it , oroffer to resist , they may be compelled vis manu & forti , for his majesty's honour is by no means to receive the least diminition . v. if therefore any of his majesty's subjects should be so negligent or forgetful to pay that obeissance , when it may be done without losse of the voyage , they are to be seized on , and brought to the flagg , to answer the contempt , or else the commander may remit the name of the ship , commander or master , as also the place from whence , and the port to which she shall be bound to the admiral ; however before she is dismist , she must pay the charge of the shot , that her negligence or forgetfulness occasioned , and afterwards may be indicted for the same , and severely punished . vi. in his majesty's seas , none of his ships of war are to strike to any , and that in no other part no ship of his majesty is to strike her flagg or top-sail to any forraigner , unless such forraign ship shall have first struck , or at the same time have strike her flagg or top-sail to his majesty's ships . vii . but if any of the king of englands ships of war shall enter into the harbour of any forraign prince or sate , or into the r●…ade within shot of canon of some fort or castle , yet such respect must be pay'd , as is usually there expected , and then the commander is to send a shore , to inform himself what return they will make to this salute ; and that if he hath received good assurance , that his majesty's ships shall be answer'd gun for gun , the port is to be saluted , as is usuall , but without assurance of being answered by an equal number of guns , the port is not to be saluted : and yet in that very respect before the port is to be saluted , the captain ought to inform himself , how flaggs ( of the same quality with that he carrys ) of other princes have been saluted there , the which is peremptorily to be insisted on , to be saluted with as great respect and advantage as any flagg ( of the same quality with the captains ) of any other prince hath been saluted in that place . viii . a captain of a ship of the second rate , being neither admirall , vice-admiral , nor reer-admiral , at his first coming and saluting his admiral or commander in chief , is to give pieces , his vice-admiral nine , and his reer-admiral seven , and the other proportionably less by two , according to their rancks ; but the commander or captain of a ship is not to salute his admiral or commander in chief , after he hath done it once , except he hath been absent from the flagg two months . xi . when a ship of the second rate , shall carry any ambassador , duke , or nobleman , at his coming aboard , he is to give eleven pieces , and at his landing fifteen ; and when he shall carry a knight , lady or gentleman of quality , at their coming aboard he is to give seven , and at the landing eleven ; and the other ships are to give less by two , according to their rancks and number of ordinance . x. when an admiral of any forraign nation is met with , he is to be answered with the like number by all the ships he shall salute , if a vice-admiral , the admiral is to answer him with twelve less ; but the vice-admiral and reer-admiral , and as many of the rest as he shall salute , shall give him the like number : if a reer-admiral , then the admiral and vice-admiral , to answer him with two less ; but if he shall salute the reer-admiral or any other , they are to answer him in the like number . xi . when a man of war or merchant-man of another nation , or of our own , salute any of the king's ships , he is to be answer'd by two less . xii . when any of the captains of his majesty's ships shall have occasion to salute any of the king's castles , he is to give two guns less then they are directed to give upon saluting their admiral or commander in chief , as aforesaid : but this extends only in time of peace , for if war is begun , no guns ought to be fired in salutes , unless to the ships or castles of some forraign prince or state in amity . xiii . those duties or obligations being laid on commanders , they consist of two parts , the one is that antient prescription , which the crown of england claims by virtue of the soveraignty of that empire , the other is but that respect , which is pay'd as visible marks of honour and esteem , either to kingdoms or persons publique or private , to whom these several commands are to be observed ; and yet in these which are both innocent and harmless of themselves , yet we wont not those who being empty , of all that may be called good , want not malice to start up words , wherefore should the lives of men , even christian men , be exposed to death and slaughter for shaddows ( as they call them ) the right of salutation or complement , being no other in their opinion . xiv . admitting therefore that the evidence of original compacts and rights stand at such remote distances from us , that they are hardly discernable , and that the principal of civil things , as well as natural , is sought for in a chaos or confusion ; so that the evidence of antient facts vestigia nulla retrorsum , there being no infallible markes of their preexistence ( one step doth so confound and obliterate another ) and that time it self is but an imagination of our own and intentional not a reall measure for actions , which pass away concomitantly with that measure of time , in which they were done , for which reason we talk of antient things , but as blind men do of colours : notwithstanding prescription is supposed by most to hold out such an evidence , that as they say , * it ought to silence all counterpleas in all tribunals , and by the present allowance which is indulged to it , it either proves a good or cleans a vitiated title ; and this prerogative in the civil constitution of the world hath this power in the civil constitution of the world , and for quietness sake , that what it cannot find , we grant it a power to make . xv. yet if we examine all this strictly at the two great tribunals , the external and the internal , and arargue the jue of it , as statesmen and lawyers do , we can then raise the argument of it no higher in the external or temporal court , then only this , — that it is very convenient it should have the effects of right , left properties and dominion of things should be uncertain , and the apparent negligences of time : owners should be punished , and controversies have a speedy end : states looking more after publique repose and quiet , then after strict virtue ; and more after those things which are ad alterum , then that which concerns a mans own self ; for , say they , the gods look well enough after their own injuries , states meddle not so much with great prodigalities , as in petty larcenies , our chiefest liberty , priviledges or prerogative in this world , consisting only in an uncountroulable right , which we have to undo our selves , if we please . certainly if we plead at the other tribunal , as conscientious lawyers , we must give our ultimate resolution , out of that law , quae inciditur non aere , sed animis : which is not ingraved in tables of brass , but in the tables of our souls ; for the rules of law tell us , quae principio vitiantur ex post facto , reconvalescant , and that prescription or usu-caption ( which is but the lapse of so much time ) hath the power to make wrong a right ; yea , to change the morality of an action , and turn quantity into quality : upon the result of all which taking for granted , what those stubborn people do hold , that instead of being a right , or a certain cause or proof of it , it only makes a shaddow or an opinion of right . xvi . and when wehave taken those people by the hand , and with eagerness run with them to the very bottom and end of the line , and there find nothing , we are but in pompey's astonishment , when after his conquest of jerusalem , when he had with such reverence and curiosity visited the sanctum sanctorum , and found nothing there but a paire of candle-sticks and a chair , in which there was no god sitting ; yet for all this mistake , he would not ( as josephus saith ) disorder or rob the temple , which he took by force of armes , because the the very opinion of religion , hath something of religion . ( which made jacob accept of laban's oath by an idol ) so ought not we for defect of giving the causes of the inception of prescription , or of the right in prescription , disorder a state , or be the occasion of setting of two nations at enmity ; nay , though in conscience we are satisfy'd that it contains but the opinion or shaddow of right : and as to the involving the lives of the innocent , there is no such thing in the matter , for there is not required any thing which they do not owe , nor are they designed to death ; but if the cause be such , that they that are innocent must perish , that is , be exposed to death by their rulers , because they obstinatly will not yield that which is right , but will involve the lives of their innocent subjects by force , to defend that which is wrong , such guilty governors must answer for the defect of their own evil actions : on the other hand , there can be no doubt made , but he that hath an undoubted right , being a soveraign , the subjects partake in the same , and the indignity offered to him , they immediatly become partakers in the suffering , for the satisfaction of which they may , yea , are oblidged both by the law of god and nations to seek reparation ( if their prince shall command ) vis manu & sorti , by the hazard of their blood and lives . xvii . on the other hand , as war introduces the greatest of evills , viz. the taking away of mens lives , and that which is equivalent to life ; so right reason and equity tells us that , it ought not to be undertaken without the greatest cause , which is the keeping of our lives , and that without which our lives cannot be kept ; or if they should be kept , yet they would not be of any value to us , seeing there may be a life worse then death , even captivity ; wherefore as we are forbidden to go to law for a little occasion , so we are not to go to war , but for the greatest : now those things that are equivalent to a mans life , are such whom almighty god appointed the same equall punishment as well as to those of murderers , and such as were breakers into houses , breakers of marriage fidelity , publishers of false religion , and those who rage in unnaturall lusts , and the like . however , before mens persons or goods are to be invaded by war , one of these three conditions is requisite . . necessity , according to the tacite contract in the first dividing of goods , as hath been already observed . . a debt . . a mans ill merits , as when he doth great wrong or takes part with those who do it . against which if any thing is committed , war may be commenc't , nor is the same repugnant to the laws of nature ; that is whether the thing may be done not unjustly , which hath a necessary repugnance to the rational and social nature ; among the first principals of nature , there is nothing repugnant unto war ; on the other hand there is much in favour of it , for both the end of war , the conservation of life and members , and the keeping and acquiring of things usefull unto life is most agreable to those principalls : and if need be to use force to that purpose is not disagreable , since every living thing hath by the gift of nature strength to the end it may be able to help and defend it self ; besides reason and the nature of society inhibits not all force , but that which is repugnant to society , that is , which depriveth another of his right ; for the end of society is , that every one may enjoy his own , this ought to be and would have been ; though the dominion and property of possessions had not been introduced for life members and liberty , would yet be proper to every one ; & therefore without injury could not be invaded by another , to make use of what is common , and spend as much as may suffice nature , would be the right of the occupant , which right , none could without injury take away . and this is proved by that battle of abraham with the four kings , who took arms without any commission from god , and yet was approved by him ; therefore the law of nature was his warrant , whose wisedom was no less emineut then his sanctity , even by the report of heathens , berosus and orpheus ; nor is the same repugnant to the hebrew law or gospell , as the same is most excellently proved by the incomparable grotius . * xviii . on the other hand , the fear of uncertain danger , as building of forts , castles and ships , and the like , though the former be on frontiers , the refusing of wives ( when others may be had ) the changing of countreys either barren or morish , for more fertile or healthfull , which may justly be done : as the case of the old germans , as tacitus relates ; so likewise to pretend a tittle to a land because it was never found out or heard of before , that is if the same be held by a people that are under a government ; nay , though the government be wicked or think amiss of god , or be of a dull wit ; for invention is of those things that belong to none , for neither is moral virtue or religious , or perfection of understanding required to dominion ; but yet if a new place or land shall be discovered , in which are a people altogether destitute of the use of reason , such have no dominion , but out of charity only is due unto them what is necessary for life ; for such are accounted as infants or mad-men , whose right or property is transferred , that is the use of the same , according to the laws of nations , in such case a charitable war may be commenc't . xviii . to prevent all the sad calamities that must inevitably follow the ungoverned hand in war , faith must by all means be laboured for ; for by that , not only every common-wealth is conserved , but also that greater society even of nations , that once being taken away , then farewell commerce , for that must be then taken away from man ; for faith is the most sacred thing that is seated in the breast of man , and is so much more religiously to be kept by the supream rulers of the world ; by how much more they are exempted from the punishment of their sins here then other men , take away faith , and then man to man , would be as mr. hobbs observes , even wolves ; and the more are kings to embrace it , first for conscience , and then for faith and credit sake , upon which depends the authority of their government . the ambassadors of justinian , addressed their seepch to chosroes after this manner , did we not see yout here with our own eyes , and pronounce these words in your ears , we should never have believed that chosroes the son of cabades , would bring his army , and enter forceably into the roman bounds , contrary to his league , the only hope left to those that are afflicted with war ; for what is this , but to change the life of men into the life of wild beasts ? take away leagues , and there will be eternall wars , and wars without end will have this effect to put men besides themselves , and divest them of their nature . if then a safe peace may be had , it is well worth the releasing of all or many of the injuries , losses and charges ; according to that in aritotle , better it is to yield some of our goods to those that are more potent , then contend with them , and loose all : for the common chances of war must be considered , which if so , the scope of the principall part of this first book may be avoided , and we let into that of traffique and commerce . the end of the first book . chap. i. of the various rights and obligations of owners and partners of ships in cases private . i. of navigation in general . ii. of owners their several powers over those vessels they are partners in . iii. where ships are obliged to make a voyage before they can be sold ; and what may be done when part protest against a voyage . iv. the master how brought in by the owners , and the reason why in such a manner . v. where the owners ought to be repaired for the damages of the master . vi. where ships broke in pieces determine the partnership as to the vessel ; and where not . vii . where a ship shall be the builders , and where onely his whose materials she was erected with . viii . where property of the vessel altered changes not that of the boat. ix . a ship for the act of pyracy becomes forfeited ; yet if bona fide sold , where the property may be questioned . x. moneys borrowed by the master , where the same obliges the owners , and where not . xi . where he that obtains an unlawful possession of a ship , shall answer the full freight to the owners . xii . and where the owners shall have their freight though they l●…ss their lading . i. in the precedent book having observed something of the rights of persons and of things in a state of nature , and how necessarily they came at first to be appropriated , and how equitably they are now continued in the possession of those to whom they are consigned by the donation of others , and maintained or destroyed by the equity of those various lawes which rules and governs them , all which is justified by the scripture it self ; it may not now seem improper to examine the private causes changing the same , and of the contingencies and advantages that wait on that which we properly call commerce . the great creator no sooner had finished his mighty work , and given man that dominion which he now enjoyes as well over the fish in the seas , as the beasts in the field , he was not forgetful of bestowing on him those things which were necessary for the government and support of the same , creating at the same time trees which grow as it were spontaneously into vessels and canoes , which wanted nothing but launching forth to render them useful for his accommodation , which afterwards he by his divine genius ( inspired by that mighty one ) finding materials , hath since so compleated and equipt as to render it the most beautiful and stupendious creature ( not improperly so called ) that the whole world can produce , which being not retarded by lett of winds , or other contingent accidents , submits it self to plow the unknown paths of that vast element , to brave all encounters of waves and rocks , to fathom and survey the vast emensities of the very world it self , to people , cultivate and civilize uninhabited and barbarous regions , and to proclaim to the universe the wonders of the architect , the skill of the pilot , and above all , the benefits of commerce , so that it is no wonder at this day to find nations contending who should surpass each other in the art of navigation , and to monopolize if possible the very commerce and trade of the world into their hands ; and that , all by the means of this most excellent fabrick . ii. hence it is , that ships and vessels of that kind being originally invented for use and profit , not for pleasure and delight , to plow the seas , not to lye by the walls , to supply those of the mountains as well as those on the sea coasts . therefore upon any probable design the major part of the owners may even against the consent though not without the privity and knowledge of the rest , freight out their vessel to sea. if it should so fall out that the major part protest against the voyage , and but one left that is for the voyage , yet the same may be effected by that party , especially if there be equality in partnership . iii. owners by law can no wayes be obliged to continue their paction or partnership without sundering ; but yet if they will sunder , the law maritime requires some considerations to be performed before they can so do . and therefore if the ship be newly built and never yet made a voyage , or is newly bought , she ought to be subject to one voyage upon the common outread and hazard , before any of the owners shall be heard to sunder and discharge their parts . if it falls out that one is so obstinate that his consent cannot be had , yet the law will enforce him either to hold , or to sell his proportion ; but if he will set no price , the rest may outrigg her at their own costs and charges , and whatsoever freight she earns , he is not to have any share or benefit in the same . but if such vessel happens to miscarry or be cast away , the rest must answer him his part or proportion in the vessel . but if it should fall out that the major part of the owners refuse to set out the vessel to sea , there by reason of the unequality they may not be compelled , but then such vessel is to be valued and sold ; the like where part of the owners become deficient or unable to set her forth to sea. iv. the master of the vessel is elegable by the part-owners not by the majority , yet he that is most able is to be preferred ; the wisdome of the later ages have been such , that few have gone out in that condition , but those as have commonly had shares or parts in the same vessel . in the preferring therefore of a master , his ability and honesty is to be considered , since on him rests the charge not onely of the vessel , but of the lading ; their very actions subiecting the owners † to answer for all damage that shall be sustained by him or his marriners , be it in port or at sea , to the lading or goods of the merchants or laders , and they are made lyable as well by the common lawes * of england , as the law maritime . † v. if the master commits offences either negligently or wilfully , he shall be responsible over to his owners for the repairation of damage ; nor are they bound to joyn , but may sever and sue apart as well by the common law † as the maritime ; so likewise if the ship hath earned freight , and part of them receive their parts , the rest may bring their action for their share without joyning with the other . vi. if a ship be borke up or taken in pieces , with an intent to convert the same to other uses ; if afterwards upon advice or change of mind , she be rebuilt with the same materialls , yet this is now another , and not the same ship ; especially if the keel be ript up or changed , and the whole ship be once all taken a sunder and rebuilt , there determines the partnership quoad as to the ship. but if a ship be ript up in parts , and taken a sunder in parts and repaired in parts , yet she remains still the same vessel and not another , nay though she hath been so often repaired that there remains not one stick of the original fabrick . vii . if a man shall repair his ship with plank or other materialls belonging to another , yet the ship maintaines and keeps her first owners . but if a man shall take plank and materialls belonging to another and prepared for the use of shipping , and with them build a ship , the property of the vessel followes the owners of the materialls , and not the builder . but if a man cuts down the trees of another , or takes timber or planks prepared for the erecting or repairing of a dwelling house , nay though some of them are for shipping , and builds a ship , the property follows not the owners but the builders . viii . if a ship be sold together with her tackle , furniture , apparel , and all other her instruments thereunto belonging , yet by those words the ships boat is not conveyed , but that remains still in the owners ; so it is if the ship be freighted out , and afterwards at sea , she commits piracy , the ship is forfeited , but the boat remaines still to the owners . * ix . if a ship commits piracy by reason of which , she becomes forfeited , if before seizure she be bona-fide sold , the property shall not be questioned , nor the owners divested of the same . x. if a master shall take up monys to mend or victual his ship where there is no occasion , ( though generally the owners shall answer the fact of the master , ) yet here they shall not , but onely the master . but if there were cause of mending the ship , though the master spend the mony another way , yet the owner and ship become lyable to the satisfaction of the creditor ; for it were very unreasonable that the creditor should be bound to take upon him the care of the repairing the ship , and supply the owners roome , which must be so if it should be necessary for him , to prove that the money was laid out upon the ship ; so on the other hand , it stands with reason that he be sure that he lends his money on such an occasion , as whereby the masters fact may oblige the owners , which he can not do otherwise , unless he knows that the money borrowed was necessary for the repair of the ship , and therefore if the ship wanted some repairs , and a far greater and extravagant sum was lent then was needful , the owners shall not be lyable for the whole . ii. if a man gets possession of a ship having no title to the same , by the law maritime he shall answer such damage as the ship in all probability might have earned ; and the reason of that is , because the onely end of shipping is the imployment thereof . xii . a ship is freighted out , accordingly she receives in her lading pursuant to agreement , afterwards an embargo happens , and the lading is taken as forfeited , yet the owners shall notwithstanding receive freight , for here is no fault in them , but only in the merchant . thus men from their necessity and safety having from hollow trees , nay reeds , twiggs and leather ( for such were the rude beginnings of those stupendious things we now admire ) advanced the art to that degree , as to render it now the most usefullest thing extant ; and as the mathematiques , astronomy , and other sciences hath added to its security , so hath succeeding ages from time to time provided priviledges and laws by which it hath alwayes been regulated and governed , the which upon all occasions , and in all courts hath generally had a genuine construction as near as might be to the marine customes ; and therefore at this day if a ship be taken away or the owners dispossest , they may maintain an action of trover and conversion for th or th part of the same , as well by the common laws of this kingdome , as the law maritime . chap. ii. masters of ships their actions considered in reference to cases private and publique . i. a master or skipper his condition considered in reference to his interest and authority generally . ii. of goods lost or imbezelled , or any other detriment happens in a port , who shall answer . iii. the duty of masters of ships , as if they shall s●…t sayl after an imbargo , who shall answer . iv. and of faults ascribed to him before departure in tempestuous weather , staying in port. &c. v. over-charging or over-lading the ship above the birth-mark , or receit of such persons a ship-board as may hazard the lading . vi. of lading aboard in the ships of enemies , his own proving disabled . vii . of shipping of goods elsewhere then at the publique ports or keyes , and of taking in prohibited goods . viii . of wearing unlawful colours or flaggs ; and of yielding up his ship cowardly if assaulted , where lyable , and where excused . ix . of carrying fictitious cocquets and papers , and refusing payment of customes and duties . x. of setting sayl with insufficient tackle , and of taking in and delivering out with the like , and of his charge of goods till safely delivered . xi . of departing without giving notice to the customer . xii . of faults committed by masters and skippers at sea. xiii . rules in law in the charging him for reparation of damage . xiv . of the power and authority that the master hath in disposing hipochicating or pledging the ship , furniture and lading . xv. where masters are disabled though in necessity to impawn the vessel . xvi . where they may dispose of vessel and lading , and where not . xvii . what vessels and marriners the master must have for importing in or exporting out of his majesties plantations in asia , affrica and america . xviii . what ships may go from port to port in england . xix . ships not to import the goods of any country but of that from whence they are brought . xx. what time the master shall be coming up after arrived at gravesend , or at any other port within the realm , in order to his discharge . xxi . of going from port to port within the realm how provided . xxii . of goods prohibited to be imported from netherlands or germany in any ships whatsoever . i. a master of a ship is no more then one who for his knowledg in navigation , fidelity & discretion , hath the government of the ship committed to his care and management , and by the common law , by which properties are to be guided , he hath no property either general or special , by the constituting of him a master ; yet the law looks upon him as an officer , who must render and give an account for the whole charge when once committed to his care and custody , and upon failer to render satisfaction , and therefore if misfortunes happens , if they be either through negligence , wilfulness , or ignorance of himself or his mariners , he must be responsible . ii. if the fault be commited in any port , haven , river or creek , or any other place which is infra corpus comitatus , the common law shall have jurisdiction to answer the party damnified and not the admiralty , * but if the same be committed super altum mare , the admiralty shall have jurisdiction of the same ; yet if it be on a place where there is divisum imperium , then according to the flux or reflux the admiralty may challenge , the other of common right belonging to the common law , according to the resolution given . and therefore so soon as merchandises and other commodities are put aboard the ship , whether she be riding in port , haven , or any other part of the seas , he that is exerciter navis is chargeable therewith ; and if the same be there lost or purloyned , or sustaine any damage , hurt or loss , whether in the haven or port before , or upon the seas after she is in her voyage , whether it be by marriners or by any other through their permission , he that is exercitor navis must answer the damage , for that the very lading of the goods aboard the ship does subject the master to answer the same ; and with this agrees the common law , where it was adjudged , that goods being sent aboard a ship , and the master having signed his bills of lading for the same ; the goods were stowed , and in the night divers persons under the pretence that they were press masters entered the ship and rob'd her of those goods , the merchant brought an action at the common law against the master , and the question was , whether he should answer for the same ? for it was alledged on his part , that there was no default or negligence in him , for he had a sufficient guard , the goods were all lockt up under hatches , the theeves came as press-masters and by force robb'd the ship , and that the same was vis major , * and that he could not have prevented the same ; and lastly , that though he was called master or exercitor navis , yet he had no share in the ship , and was but in the nature of a servant acting for a salary . but notwithstanding it was adjudged for the plaintiff , for at his peril he must see that all things be forth-coming that are delivered to him , let what accident will happen , ( the act of god , or an enemy onely excepted ) but for fire , theeves and the like , he must answer , and is in the nature of a common carryer ; and that though he receives a sallary , yet he is a known and publique officer , and one that the law looks upon to answer , and that the plaintiff hath his election to charge either master or owners , or both at his pleasure , but can have but one satisfaction . if a master shall receive goods at the wharf or key , or shall send his boat for the same , and they happen to be lost , he shall likewise answer both by the maritime law and the common law. iii. if goods are laden a board , and after an embargo or restraint from the prince or state he breaks ground , or endeavours to sayl away , if any damage accrues he must be responsible for the same . the reason is , because his freight is due and must be paid , nay although the very goods be seized as bona contra bandos . iv. he must not sayl in tempestuous weather , nor put forth to sea without having first consulted with his company ; † nor must he stay in port or harbour without just cause when a fair wind invites his departure . v. he must not over-charge or lade his ship above the birth-mark , or take into his ship any persons of an obscure and unknown condition without letters of safe conduct . vi. nor ought he to lade any of his merchants goods aboard any of the kings enemies ships , ( admitting his own vessel leaky or disabled ) without letters of safe conduct , otherwise the same may be made prize , and he must answer the damage that follows the action . nor shall he come or sneak into the creeks or other places when laden homewards , but into the kings great ports , ( unless he be driven in by tempest ) for otherwise he forfeits to the king all the merchandize , and therefore must answer . vii . nor ought he to ship any merchandize , but onely at the publique ports and keyes . he must not lade any prohibited or unlawful goods , whereby the whole cargo may be in danger of confiscation , or at least subject to seizure or surreption . he may not set sayl without able and sufficient marriners both for quality and number . viii . he may not use any unlawful colours , ensigns , pendants , jacks or flaggs , * whereby his ship or lading may incur a seizure , or the cargo receive any detriment or damage . he must not suffer the lading to be stolne or imbezled , if the same be , he must be responsible , unless it be where there is vis major , as if he be assaulted at sea either by enemies , ships of reprize , or pyrats , there if no fault or negligence was in him , but that he performed the part of an honest faithful and valiant * man , he shall be excused . yet it hath been adjudged , that if a merchant-man lyes in a port or haven , and a pyrat , sea rover , or other thieves enter her and over-power her men , and then rob her , yet the master must be responsible ; but if an enemy enter and commit the depridation , there the master is excused . ix . he must not carry any counterfeit cocquets or other fictitious and colourable ship papers to involve the goods of the innocent with the nocent . nor must he refuse the payment of the just and ordinary duties and port-charges , customes and imposts , to the hazard of any part of his lading ; yet if he offers that which is just and pertaines to pay , then he is excused . x. he must not set sail with insufficient rigging or tackle , or with other or fewer cables then is usual and requisite , respect being had to the burthen of the vessel : and if any damage happens by the delivery of the goods into the lighter , as that the ropes break and the like , there he must answer ; but if the lighter comes to the wharf or key , and then in taking up the goods , the rope breaks , the master is excused , and the wharfinger is liable . * if fine goods or the like are put into a close lighter and to be conveyed from the ship to the key , it is usual there the master sends a competent number of his marriners to look to the merchandize , if then any of the goods are lost or imbezled , the master is responsible * and not the wharfinger ; but if such goods are to be sent aboard a ship , there the wharfinger at his peril must take care the same be preserved . xi . after his arrival at port , he ought to see that the ship be well moared and anchored , and after reladed not to depart or set sail till he hath been cleared ; for if any damage happens by reason of any fault or negligence in him or his marriners , whereby the merchant or the lading receives any damage , he must answer the same . xii . and as the law ascribes these things and many more to him as faults , when committed by him or his marriners , in ports , so there are other things which the law looks upon to be as faults in him in his voyage , when done . as if he deviates in his course without just cause , or steers a dangerous and unusual way , when he may have a more secure passage : though to avoid illegal impositions , he may somewhat change his course ; nor may he sail by places infested with pyrates , enemies , or other places notoriously known to be unsafe , nor engage his vessel among rocks or remarkable sands , being thereto not necessitated by violence of wind and weather , or deluded by false lights . xiii . by the maritime law , he that will charge a master with a fault as in relation to his duty , must not think that a generall charge is sufficient in law , but he ought to assigne and specifie the very fault wherewith he is so charged . so , he that will infer , that such or such a sad disaster to have happned or been occasioned by reason of some fault in the marriners , must not only prove the fault it self , but must also prove that that fault did dispose to such a sad event , or that such a misfortune could not have happened without such a fault precedent . xiv . when voyages are undertaken , the master is there placed in by the owners , and they ought to make good the masters fact and deed ; * and therefore as the whole care and charge of ship and goods are committed to the master , it is the prudence of the owners to be careful who they will admit commander of their ship , since their actions subject them to answer the damage , or what ever other act he shall do in reference to his imploy : and therefore he can freight out the vessel , take in goods and passengers , mend and furnish the ship , and to that effect if need be in a strange countrey he may borrow money with advice of his marriners , upon some of the tackle , or sell some of the merchandize . if part of the goods shall be sold in such necessity , the highest price that the remainder are sold for must be answered and paid to the merchant ; after which the merchant must pay for the freight of those goods as well as for the remainder , leg. oleron . but if the ship in the voyage happens to be cast away , then onely shall be tendred the price that the goods were bought for . by the common law the master of a ship could not impawn the ship or goods for no property either general or special , nor such power is given unto him by the constituting of him a master . yet the common law hath held the law of oleron reasonable , that if a ship be at sea and takes leake , or otherwise want victual or other necessaries , whereby either her self be in danger or the voyage defeated , that in such case of necessity the master may impawn for money or other things to relieve such extremities by imploying the money to that end ; and therefore he being the person trusted with the ship and voyage , may therefore reasonably be thought to have that power given to him implicitly , rather then to see the whole lost . but a master for any debt of his own cannot impawn or hipothycate the ship , &c. for the same is no wayes lyable but in cases of neccssity for the relief and compleating of the voyage . nor can he sell or dispose of the same without an authority or licence from the owners ; and when he does impawn or hipothycate the vessel or furniture , he * ought to have the consent and advice of his marriners . xv. and where the ship is well engaged , she is for ever obliged , and the owners are concluded thereby , till redemption . but in regard masters might not be tempted to engage the owners , or infetter them with such sort of obligations , but where there is very apparent cause and necessity , they seldome suffer any to go skipper or master but he that has a share or part in her ; so that if moneys or provisions be taken up , he must bear his equal share and proportion with the rest . the master cannot on every case of necessity impawn the vessel or furniture ; for if she be freighted , and he and the owners are to joyn in the laying in of the provisions for the voyage , and parhaps he wants money , ( a great sign of necessity ) yet can he not impawn the vessel or furniture , any other or further then for his own part or share in her , the which he may transfer and grant as a man may do an th or th part in lands or houses : but such obligation of the vessel must be in forreign parts or places where the calamity or necessity is universal on the vessell . xvi . if the vessel happens afterwards to be wreckt or cast away , and the marriners by their great pains and care recover some of the ruines and lading , the master in that case may pledge the same , the produce of which he may distribute amongst his distressed marriners in order to the carrying them home to their own countrey ; but if the marriners no wayes contributed to the salvage , then their reward is sunk and lost with the vessel . but if there be any considerable part of the lading preserved , he ought not to dismiss his marriners , till advice from the laders or freighters ; for otherwise perchance he may be made lyable . if merchants freight a vessel at their own charges , and set her to sea , and then happens afterwards to be weather-bound , the master may impawn either ship or lading at his pleasure , or at least such as he could conveniently raise moneys on , rather then see the whole voyage lost . and if he cannot pawn the lading , he may sell the same , that is , so much as is necessary ; in all which cases his act obliges . however , orders and instructions are as carefully to be look'd upon and followed as the magnate . xvii . he is not to import into , or export out of any the english plantations in asia , affrica , or america , but in english or irish vessels , or of the vessels built and belonging to that country , island , plantation or territory . the master and fourths of the marriners to be english , upon forfeiture of ship and goods . and if otherwise , they are to be look't upon as prize , and may be seized by any of the kings officers and commanders , and to be divided as prizes , according to the orders and rules of the sea. all goods of the growth of his majesties plantations are not to be imported into england , ireland , or wales , islands of jersey or guernsey , but in such vessels as truly belong to owners that are of england , ireland , wales , jersey or guernsey , and three fourths at least of the marriners are to be english , upon forfeiture of ship and goods . the goods and wares of those plantations , and brought in such manner as aforesaid , must be brought from those very countries of their several productions and growths , or from the ports where they are usually shipped out ; on forfeiture of ship and goods . xviii . no ship to go from port to port in england , ireland , wales , jersey , or guernsey , or berwick , unless the owners are denizens or naturalized , and the master and fourths to be english. all owners must swear that their vessels or ships are their own proper ships and vessels , and that no forreigner has any share or part in her , and must enter the same , and that she was bought for a valuable consideration , bona fide . nor to bring in any goods from any place , but what are of the growth of that very country , or those places which usually are for the first shipping , on pain of forfeiture of their vessel and furniture . this does not extend , but masters may take in goods in any part of the levant or streights , although they are not of the very growth of the place so that they be imported in english ships fourths english marriners : so likewise those ships that are for india in any of those seas to the southward and eastward of cabo bona speranza , although the ports are not the places of their very growth . any people of england may import ( the master and marriners fourths english ) any goods or wares from spain , portugal , azores , madera , or canary islands . nay in ships that are not english built bullion may be imported ; so likewise in those that are taken by way of prize bona fide . but sugars , tobacco , cottens , ginger , indicoes , fustick , or any other dying wood of the growth of his majesties plantations , are to be shipped , carryed or conveyed from any of the english plantations , are to be carryed to no place in the world , but are to come directly for england , ireland , wales , or barwick , upon pain of forfeiture of ship and goods , and the master is to give bond with one security in a thousand pound if the ship be under the burden of a tuns , and l. if above , that upon lading he brings his ship directly into england , ireland , wales , or berwick , ( the danger of the seas excepted , ) so likewise they are to do the same for the ships that shall go from the plantations at the plantations to the governour , upon forseiture of the ship and goods . xx. when the master shall arrive at gravesend , he shall not be above . dayes coming from thence to the place of discharge ; nor is not to touch at any key or wharfe till he comes to chesters key , unless hindred by contrary winds , or draught of water , or other just impediment to be allowed by the officers ; and likewise he or his purser are there to make oath of the burthen , contents and lading of his ship , and of the marks , number , contents and qualities of every parcel of goods therein laden to the best of his knowledge ; also where and in what port she took in her lading , and what country built , and how manned ; who was master during the voyage , and who the owners ; and in out-ports must come up to the place of unlading , as the condition of the port requires , and make entries , on pain of l. nor is such master to lade aboard any goods outwards to any place whatsoever , without entring the ship at the custome-house of her captain , master , burthen , guns , ammunition , and to what place she intends , and before departure to bring in a note under his hand of every merchant that shall have layd aboard any goods , together with the marks and numbers of such goods , and be sworn as to the same , on pain of l. no captain , master , purser of any of his majesties ships of warr shall unlade any goods before entry made , on pain of l. note . there is a list of all forraign built ships in the exchequer , and that no forraign ship not built in any of his majesties dominions of asia , affrica , or america , after . octob. . and expressly named in the list , shall enjoy the priviledges of a ship belonging to england or ireland , although owned and manned by english , except onely such as are taken by way of reprize and condemnation made in the admiralty as lawful prize ; none but english and irish subjects in the plantations are to be accounted english. if the master shall have freight from port to port within the realm , he ought to have warrant for the same , on pain of forfeiture of the goods , and he is to take forth a cockquet , and become bound to go to such port designed for , and to return a certificate from the chief officers of that port where the same was designed for , and discharged within months from the date of the cockquet . but from the netherlands or germany there may not be imported no sort of wines ( other then rhenish ) spicery , grocery , tobacco , pot-ashes , pitch , tar , salt , rozin , deal-boards , hard timber , or olives , oyl , in any manner of ships whatsoever . it might not seem impertinent that this latter part which is abridged as in reference to matters publique should be inserted , for that sometime it may happen that an honest and well meaning master or skipper might innocently involve and hazard the loss of his ship by committing acts against lawes positive and prohibitory ; and though masters and marriners qua tales be not so exquisite as to know all that does belong to their duties , or at least that which the law layes incumbent on their shoulders , yet for that most of them have some small glimmerings of the same , that such hints in matters publique as well as private may not onely be of some advantage to them , but likewise to merchants , who alwayes upon the miscarriages of the masters , prove the greatest sufferers , the offenders , for the most part , proving not sufficiently solvant . chap. iii. of marriners , their several offices and immunities : and of barratry committed by them . i. the several maritime officers a shipboard , and their charges and duties . ii. of the masters power and authority over them , as in relation to punishing or otherwise . iii. the duty that marriners owe to each other , and they to the ship. iv. their attendance requisite when laded ; and if detriment , where to be responsible . v. where accidents befall them , where they ought to be look't after , and at whose costs . vi. the marriners oath where requisite to the discharging of the master . vii . what accidents does destroy , and what not their wages . viii . where they may joyn all in a suit for the recovery of their wages , and where not . ix . of their wages where lyable to answer damage . x. where they absolutely lose their wages . xi . of money or goods taken up by a marriner , where it shall be debt , and where a discount of his wages . xii . and of their becoming lyable to correction . xiii . barratry in the marr●…ners , the reason why the law imputes offences in them to be answered by the master . xiv . in what cases the master shall become lyable for the actions of his marriners . xv. of goods purloyned before they are brought a shipboard , where the master is bound to answer , and where not . xvi . of the antiquity of such custome . xvii . of goods brought secretly in a shipboard if purloyned , where the master is not made lyable . xviii . of caution or forewarning , where the same shall excuse the master . xix . where the master shall be lyable notwithstanding such caution . i. the persons ordinary for sayling in ships have divers denominations ; the first which is the master , known to us and by most nations both now and of old , and especially by the roman lawes , navicularius , or magister navis ; in english rendred master , or exercitor navis ; in the tutonique , skipper ; by the grecians , nauarchus or nauclerus ; by the italian , patrono . but this is onely to those vessels that are ships of burden and of carriage : for to ships of warr the principal there is commonly called commander or captain . the next in order of office to the master , is he who directs the ship in the course of her voyage , by the french called pylott ; by the english and flemming , steirsman ; by the romans , gubernator ; by the italians , nochiero pilotto and nauarchus , as gerretus writes . the third is esteemed the master's mate or companion , chiefly if the master be steers-man himself ; of old by the grecian and roman called proreta ; his charge is to command all before the mast. his successor in order is the carpenter or shipwright , by those two nations of old , called naupegus by the latter , by the first calaphates , from the loyns of one of that rank sprang that great emperour michael , sirnamed calaphates , who denied not to own the quality of his father among his regal titles . the very name calaphate , the venetian and italian still use to this day . the next who succeeds him in order , is he who bears the charge of the ships boat , by the italians called brachierie ; by the grecians and romans , garabita , from carabus , which denotes the boat of a ship. the sixth in order , especially in ships of burden , is the clerk or purser , by the italian called scrivano , whose duty is the registring and keeping the accounts of all received in or delivered out of the ship ; for all other goods that are not by him entred or taken into charge , if they happen to be cast over-board in storm , or are stolne or imbezled , the master answers them not , there being no obligation on him by law for the same ; his duty is to unlade by day , not night . the th a most necessary officer , as long as there are aboard bellies , sharp stomachs and provision , called the cook. the th is the ships boy , who keeps her continually in harbours , called of old by the grecians , nauphylakes ; by the italians , guardiano : these persons are distinct in offices and names , and are likewise distinguished in their hyres and wages ; the rest of the crew are under the common name of marriners , by the romans called nautas ; but the tarpollians , or those youths or boyes that are apprentices obliged to the most servile duties in the ship were of old called mesonautae . ii. the master hath the supream rule a shipboard , and by that means his power and authority is by law much countenanced , especially in the keeping his crew in peace so long as they eat his bread ; and if a marriner shall happen to be bruised or hurt in doing his duty and service , the master is to take care that he be carefully look't after in order to the procuring his recovery ; and if it be occasioned by the miscarriage of another a shipboard , he may refund the damage out of his wages , but still remembring who gave the first assault . if it happens that the master commands his boat to be manned out , and it so happens that the same is out of order , or unfit to take the sea , the tewes , or other accoutriments being impotent , if the marriners happen to be drowned , the master is to repay one whole years hyre to the heirs of the drowned : therefore masters ought carefully to view and see that the boat be fit for men to trust their lives in upon his command . if a marriner shall commit a fault , and the master shall lift up the towell . times before any marriner , and he shall not submit , the master at the next place of land may discharge him ; and if he refuses to go ashoare , he shall lose half his wages , and all his goods within the ship : if the marriner shall submit , and the master will not receive the same , he shall have his whole wages : or if the marriner shall depart the ship on the master's command , and the master happens not to take another , if any damage happens to ship or goods , the master must answer . iii. marriners must help one another at the sea and in port ; if they refuse , upon the oaths of his fellowes , he loseth his wages . none of the crew must or ought to leave the ship without leave of the master when she comes to a port , or rides at anchor , but alwayes constantly to wait upon her till they are discharged , or have leave , at least half to be left a ship-board . a marriner may not carry out of the ship above one meals meat ; but drink not a drop ; and when a shipboard , ought not to be there arrested for debt , but onely so much of his wages in the hands of the master attached : yet this is doubted if it be not on a sworn debt , t hat is , a judgment or sentence , or a penalty to the king. they ought not to depart from a shipboard when once admitted into their full pay , ( which is always when they break ground , ) without licence of the master ; and before they may so do , they are to leave a sufficient number to guard the ship and decks . iv. if the ship breaks ground , and is set sayl , if after she arrives at her desired port , their full pay continues till she returns ; nor may they in any wise depart from a shipboard without leave or licence of the master ; if they do , and any disaster happens , they must answer : yet at such port if the vessel be well moared and anchored with two cables , they may go without leave , yet so as they leave a sufficient number behind to guard the decks : but then their return must be in due season ; for if they make a longer stay , they must make satisfaction . v. if marriners get drunk and wound one another , they are not to be cured at the charge of the master or ship ; for such accidents are not done in the service of the ship : but if any of the marriners be any wayes wounded , or do become ill in the service of the ship , they are to be provided for at the charges of the ship ; and if they be so ill as not fit to travail , they are to be left ashoare , and to take care he hath all accommodations of humanity administred to him : and if the ship is ready for a departure , she is not to stay for him ; if he recover , he is to have his full wages , deducting the masters charges which he laid out for him . vi. in case of storm if goods are cast over-board for lightning the ship , the oaths of the marriners who swearing that it was done for the preservation of the vessel and the rest of the lading , the same shall discharge the master . so goods damnified at sea , are cleared by the oath of the master and marriners , by the laws of olerone . to assault the master a shipboard , is a crime that subjects the marriner's hand to be cut off , unless he redeems at . solz . vii . if a ship happens to be seized on for debt or otherwise to become forteited , the marriners must receive their wages , unless in some cases where the wages is forfeited as well as the ship ; as if they have letters of mart , and instead of that they commit pyracy , by reason of which there becomes a forfeiture of all ; but lading of prohibited goods aboard a ship , as wooll , and the like , though it subjects the vessel to a forfeiture , yet it disables not the marriner of his wages ; for the marriners having honestly performed their parts , the ship is tacitly obliged for their wages : but if the ship perishes at sea , they lose their wages , and the owners their freight . and this being the maritime custome , is allowed by the common law as well as the civil law. viii . the courts at westminster have been very favourable to marriners in order to the suing for wages , for at the common law they cannot joyn , but must sue all distinct and apart for their wages . yet in the admiralty they may all joyn , and the courts at westminster will not grant a prohibition : and so it was rul'd , where one jones a master of a ship was sentenc'd in the admiralty for wages at the suit of poor marriners , a prohibition being prayed upon a suggestion that the contract was made at land , and not super altum mare : the court denyed it , for that he came too late , sentence being given below against him : yet if the marriners had onely libelled , and there had been no sentence , and the defendant had prayed a prohibition as above , yet the court would have denyed it . and this has been and is usually done . but the court will be very well informed that the libel is for marriners wages ; for some who work carpenters work and such like labour aboard a ship in a haven or port within the realm ( which is infra corpus comitatus , ( notwithstanding those great and ingenious objections against it ) and must be tryed by the common law , and not elsewhere , ) will libel under that cloake for marriners wages . but the court in that case will grant a prohibition . and so it was done in the like case . but if a ship rides at anchor in the sea , and the master sends his boat a shoare for victuals or other provisions for the ship , and accordingly the providore or the slopp-seller does bring victuals and provisions aboard ; in that case if the contract be made there , it must be sued for in the admiralty : but if the goods are by the purser or marriners contracted for at land , they must sue at common law. ix . if goods are so imbezled or so damnified that the ships crew must answer , the owners and master must deduct the same out of their freight to the merchants , and the master out of the wages of the marriners ; for though freight is the mother of wages , so is it the very father of damage : for before the marriner can claym his wages out of what the ship hath earn'd , the ship must be acquitted from the damage that the merchant hath sustain'd , by the negligence or fault of the marriners : and the reason is , for that as the goods are obliged to answer the freight , so the freight and ship is tacitly obliged to clear the damage ; which b●…ing done , the marriners are then let in to their wages . x. if a marriner be hyred , and he deserts the service before the voyage ended ; by the law maritime he loses his wages : and the same custome at common law pleaded , it hasbeen conceived will barr him . if a marriner shall commit any wilful or negligent fault , by reason of which the master , owners , or the ship answers damage to the merchant , an action lyes well against him . xi . if a marriner takes up moneys or cloaths , and the same is entred in the purser's book ; by the custome maritime it is a discount or a receipt of so much of their wages as the same amounts to : and in an action brought by them for their wages , the same shall be allowed , and is not accounted mutual , the one to bring his action for the cloaths , and the other for his wages . xii . a master of a ship may give moderate and due correction to his marriners , and if they bring an action against him , he may justifie the same at the common law ; and by the law of oleron , if a marriner shall assault the master , he is to pay . solz , or lose his hand . marriners after they have unladed the ship , if they demand their wages , and there be any intention of their departure , the master may detain a reasonable proportion of the same till they bring back the ship , or give caution to serve out the whole voyage . xiii . barratry of the marriners is a disease so epidemical a shipboard , that it is very rare for a master , be his industry never so great to prevent ; a span of villany a shipboard soon spreads out to a cloud , for no other cause but of that circular encouragement that one knavish marriner gives to another . however the law does in such cases impute offences and faults committed by them to be negligences in the master ; and were it otherwise , the merchant would be in a very dangerous condition . the reasons why they ought to be responsible , are , for that the marriners are of his own choosing , and under his correction and government , and know no other superiour a shipboard but himself ; and if they are faulty , he may correct and punish them , and justifie the same by law : and likewise if the fact is apparently proved against them , may re-imburse himself out of their wages . xiv . and therefore in all cases wheresoever the merchants loads aboard any goods or merchandize , if they be lost , imbezled , or any otherwise damnified , he must be responsible for them ; for the very lading them aboard makes him lyable , and that as well by the common law , as the law maritime . xv. nay , if his marriners go with the ship boat to the key or wharfe to fetch goods a shipboard , if once they have taken charge of them , the master becomes immediately responsible if they steal , lose , damnifie or imbezle them . xvi . the antient'st record that is found extant , is that in edw. the third's time , where one brought an action of trespass against the master for the imbezlement by his marriners of pieces of gold , bowe , sheaf of arrowes , sword , and other things ; and adjudged he should answer . and for that the same is or may be of great moment , accept of a transcript of the record , as the same was certified into chancery , in order to have it sent into the kings-bench , to enable the plaintiff to bring an action upon the same judgment in any place in england where he could meet with the defendant . venerabili in christo patri dn̄o i. dei gratia wygorn episcopo dn̄i regis ed. cancellar̄ vel eius locum tenenti sui humiles , & devoti robertus gyene , major uille bristol , edwardus blanckett , & ioh̄es de castle-acre ballivi libertatem ejusdem uille , salutem cum omnia reverentia & honore , de tenori & recordi & ꝓcessus loquelle que fuit coram nobis in cur̄ domini regis ibm sine braevi inter henr̄ pilk & iurdanum uenere magistrum navis voc̄ la graciane de bayone in plito transgress̄ ꝓut ꝑ breve dn̄i regis nobis directum fuit vos inde certificatur , sub sigillis nr̄is vobis si placet mitimus in hijs scriptis . ad placit tols tent̄ ibm die martis ꝓx post festum epiphaniae domini anno regni regis nunc . henr̄ pilk quer̄ opt . se. versus iurdanum uenore magistrum navis vocat̄ la graciane de bayone de plito transgress̄ ꝑ pl &c. & unde quer̄ , quod secundum legem & consuetudinem de oleron unusquisque magister navis tenetur respondere de quacunque transgr̄ ꝑ servientes suos in eadem fact , & ioh̄es de rule & fartolet de fornes servientes p̄dicti iurdani magisteri navis p̄dicte die mercur̄ ꝓx ' ante festum omnium sanctorum anno regui p̄dicti regis ed. . in mari iuxta britan : in eadem navi de iohanne de cornub̄ servient̄ p̄dict̄ henr̄ . libt̄ in auro arcus sagit glad . & al bona & catalla ad valenc̄ l. ceperunt & asportaverunt injuste &c. ad dampnum p̄dict̄ henr̄ l. & si p̄dictus iurdanus hoc velit dedicere p̄dict̄ henr̄ paratus est verificare &c. et p̄dictus iurdanus venit & dicit qd lex de oleron talis est qd si aliqua bona & catalla magistro alicujus navis liberata sunt custodiend , unde idem magister ꝓ eisdem vel ꝓ aliqua alia re in eadem navi facta manucap̄ illo modo magr̄ navis tenetur respondere , non alio modo , et suꝑ hoc petit iudicium , et p̄dict henr̄ dicit qd unusquisque magister navis tenetur respondere d oe quacunque transgressione ꝑ servientes suos in navi sua fact , & petit iudicium simlr̄ . et suꝑ hoc p̄dicte ꝑtes habent diem hic die sabati ꝓx̄ post festum sc̄i hillarij ꝓx̄ . futur̄ ad audiend judicium suum &c. ad quem diem pdicte ꝑtes venerunt & petierunt iudicium suum &c. et recitat . recordo & processu p̄dictis in plena curia coram majore & ballivis & alijs probis hominibus uille & magistris & marinarijs , visum fuit curie , quod unusquisque magister navis tenetur respondere de quacunque transgressione ꝑ servientes suos in navi sua facta , ideo consideratum est , quod p̄dict henr̄ recuperet dampna sua l. vsus p̄dict iurdanum ꝑ cur̄ ta●at & nichilominus idem iurdanus transgressione p̄dicta in mīa . xvii . the master subject to answer damage , is to be understood in all such cases where the lading was brought aboard either by his consent or his pursers ; for any other , or such as shall be secretly brought in not being entred in the purser's book , or in the bills of lading , the master is not obliged to see forth-coming , unless it be such goods as the parties bring into the ship about them , as cloaths , money and the like , as above , those things being seldome entred , yet most commonly are visible , the master by law is responsible for . xviii . so likewise if a master forewarn a passenger to keep his goods , and that he will no wayes take care of them , and if they be lost or purloyned by the crew , he will not be obliged to see them forth-comeing ; the master is not there held responsible in case of a loss , especially if there be any thing of an agreement thereunto . xix . but if goods shall be sent aboard a ship , and the master shall appoint a cabin for the same , and deliver the key to the lader and tell him he will not be responsible if a loss happens ; yet if the goods are stole , he must notwithstanding make satisfaction : by the common law it shall bind an inn-keeper . note , that goods once delivered to a master , the cargo is not subject to be attached in his hands , nor can any custome whatsoever support the same ; for they are in law as it were bayled to the ship untill the freight and all other charges are paid * : and very much doubted whether an attachment can be made in london of any goods at all lying a shipboard in the rives of thames , ( which though the port of london ) notwithstanding freight and all other charges are paid off . chap. iv. of freight , charter-parties , and demorage . i. the various wayes that ships may be freighted at this day . ii. the ancient way of freighting . iii. how the same is governed upon the various contracts , and of accidents happening to masters or laders preventing the voyage . iv. of ships laded and unladed before the voyage begun ; their becoming disabled , viz. perish in the voyage before the same is compleated . v. of ships departure considered as in reference to freight and damage . vi. of freight arising on trading voyages , and lost by contingent actions , considered by the common law , and the law maritime . vii . of freight becoming due upon the various wayes of contract , or general where none was agreed for . viii . of faults arising from the freighters , and of the decease of the ship , as in reference to freight . ix . of faults of masters arising from taking in goods more than were contracted for ; and of being forc'd into ports in his passage . x. passengers dying , the ship●… title to their goods and concerns . xi . the ship in construction of law , how far lyable to freight . xii . ships taken and retaken in warr , whether the same destroyes the contract . xiii . goods become lost without fault of the ship , whether freight becomes due . xiv . of freight contracted with persons deficient . xv. of ships contracted for by the mouth to be paid at the arrival at a port ; ship is cast away , the goods saved : whether the freight ought to he paid . i. in the freighting of ships respect is alwayes had to the ship it self , or else to a certain part thereof . again , the merchants either freight her by the month , or the entire voyage , or by the tun ; for it is one thing to freight a ship , and another thing to take certain tunnage to freight . so also it is one thing to be a cape-merchant , another to be an under freighter . ii. there was of old another way of freighting , which was when the merchant agreed with the master for a sum certain to convoy the goods ensur'd against all peril ; such were to be responsible if any detriment or loss happened : but that is now become obsolete . iii. freight is governed generally by the contract , and varies according to the agreement , reduced generally into a writing commonly called a charter-party , executed between the owners and merchant , or the master in the behalf of himself and owners , or himself and the merchant , or between them all . the master or owners generally covenant to provide a pylott and all other officers and marriners , and all other things necessary for the voyage ; and for the taking in and delivering out of the lading . if there be an agreement and earnest , but no writing , if the same be broke off by the merchant , he loseth his earnest ; but if the owners or master repent , they lose double the earnest . but by the common law of england the party damnified may bring his action of the case and recover his damages on the agreement . if a time is appointed by the charterparty , and either the ship is not ready to take in , or the merchant not ready to lade aboard , the parties are at liberty , and the party damnified hath his remedy against the other by action , to recompence the detriment . if part of the lading be a shipboard , and it happens some misfortune may overtake the merchant that he hath not his full lading aboard at the time , the master is at liberty to contract with another , and shall have freight by way of damage for the time that those goods were aboard after the time limited ; for such agreements are of a conditional nature precedent , a failer as to a compleat lading will determine the same , unless afterwards affirm'd by consent . and though it be no prudence for every merchant or every master to depart from the contract if it should so fall out that the agreement as to the lading is not performed according to the charter-party or agreement , ( seldome ever done if any part be aboard ) yet it is the highest justice , that ships and masters should not be infettered but free ; for otherwise by the bare lading of a cask or bale , they might be defeated of the opportunity of passage or season of the year . so on the other hand , if the vessel is not ready , the merchant may ship aboard in another vessel the remainder of his goods , and discharge the first skipper , and recover damages against the master or owners for the rest : and this is grounded upon the like reason as the former . and therefore by the law maritime , chance or some other notorious necessity will excuse the master ; but then he loseth his freight till such time as he breaks ground : and till then he sustains the loss of the ship. but if the fault be in the merchant , he then must answer the master and the ships damage , or else be lyable to entertain the ships crew ten dayes at his own charge ; but after that , then the full freight : and if any damage happens afterwards , the merchant must run the risque of that , and not the master or owners . but by the common law , so long as the master hath the goods a shipboard he must see them forth-coming . iv. if goods are fully laded aboard , and the ship hath broke ground , the merchant on consideration afterwards resolves not on the adventure , but will unlade again ; by the law maritime the freight seems deserved . but if the ship in her voyage becomes unable without the masters fault , or that the master or ship be arrested by some prince or state in her voyage , the master may either mend his ship , or freight another . but if the merchant will not agree to the same , then the freight becomes due for so much as the ship hath earned : for otherwise the master is lyable for all damage that shall happen . and therefore if that ship to which the goods were transladed perish , the master shall answer ; but if both the ships perish , then is he discharged . but if there be extream necessity , as that the ship is in a sinking condition , and an empty ship is passing by or at hand , he may translade the goods ; and if that ship sink or perishes , he is there excused : but then it must be apparent that that ship seem'd probable and sufficient . v. if a set time be fixed and agreed upon between the merchant and the master wherein to begin and finish his voyage , it may not be altred by the supra cargo without special commission for that purpose . if a master shall weigh anchor and stand out to his voyage after the time covenanted or agreed on for his departure , if any damage happens at sea after that time , he shall refund and make good all such misfortune . if it is agreed that the master shall sayl from london to leighorne in two moneths , and freight accordingly is agreed on , if he begins the voyage within the two months , though he does not arrive at leighorne within the time , yet the freight is become due . vi. if a ship is freighted from one port to another port , and thence to a third , fourth , and so home to the port from whence she first sayled , ( commonly called a trading voyage ) this is all but one and the same voyage , so as it be in conformity to the charterparty . a merchant agrees with a master , that if he carries his goods to such a port , he will then pay him such a sum ; in the voyage the ship is assaulted , entred and robb'd by pyrats , and part of her lading taken forth , and afterward the remainder is brought to the port of discharge , yet the sum agreed upon is not become due ; for the agreement is not by the master performed . but by the civil law this is vis major , or casus fortuitus , there being no default in the master or his marriners , and the same is a danger or peril of the sea , which if not in navall agreements exprest , yet is naturally implyed : for most certain had those goods which the pyrats carried away in stress of weather , navis levandae causa , been thrown over-board , the same would not have made a disability as to the receipt of the sum agreed on ; for by both the common law , and the law maritime , the act of god , or that of an enemy shall no wayes work a wrong in actions private . vii . if a ship be freighted by the tun , and she is full laded according to the charterparty , the freight is to be paid for the whole ; otherwise but for so many tun as the lading amounted to . if freight be contracted for the lading of certain cattle or the like from dublin to west-chester , if some of them happen to dye before the ships arrival at west-chester ; the whole freight is become due as well for the dead as the living . but if the freight be contracted for the transporting them , if death happens , there arises due no more freight then onely for such as are living at the ships arrival at her port of discharge , and not for the dead . if the cattle or slaves are sent aboard , and no agreement is made either for lading or transporting them , but generally , then freight shall be paid as well for the dead as the living . if freight be contracted for the transporting of women , and they happen in the voyage to be delivered of children on ship-board , no freight becomes due for the infants . the charterparty does settle the agreement , and the bills of lading the contents of the cargo , and binds the master to deliver them well conditioned at the place of discharge according to the contents of the charterparty or agreement ; and for performance , the master obliges himself , ship , tackle and furniture to see the same done and performed . if goods are sent aboard generally , the freight must be according to freight for the like accustomed voyages . if a ship shall be freighted and named to be of such a burden , and being freighted by the tun shall be found less , there shall no more be paid than onely by the tun for all such goods as were laded aboard . if a ship be freighted for two hundred tuns or thereabouts , the addition of thereabouts , is commonly reduced to be within . tun more or less , as the moiety of the number ten , whereof the whole number is compounded . if a ship be freighted by the great , and the burden of it is not exprest , yet the sum certain is to be paid . viii . if the ship by reason of any fault arising from the freighter , as lading aboard prohibited or unlawful commodities , occasions a detention , or otherwise impedes the ships voyage , he shall answer the freight contracted and agreed for . if a ship be freighted out and in , there arises due for freight nothing till the whole voyage be performed . so that if the ship dye or is cast away coming home , the freight outwards as well as inwards becomes lost . ix . if a master freights out his ship , and afterwards secretly takes in other goods unknown to the first laders , by the law maritime he loses his freight ; and if it should so fall out that any of the freighters goods should for safety of the ship be cast over-board , the rest shall not become subject to the averidge , but the master must make good that out of his own purse : but if the goods are brought into the ship secretly against his knowledge , it is otherwise ; and goods so brought in , the same may be subjected to what freight the master thinks fitting . consol. del mere. if the ship puts in to any other port then what she was freighted to , the master shall answer damage to the merchant ; but if forc'd in by storm , or by enemy , or pyrats , he then must sayl to the port conditioned at his own costs . generally the touching at several ports by agreement , imports not a diversity , but a voyage entire . x. if passengers having goods happen to decease a ship-board , the master is to inventory their concerns , and the same may a year keep ; and if none claym the same , the master becomes proprietor defeazeable : but the bedding and furniture of the parties become the master and his mates , and the clothing are to be brought to the ship-mast head , and there praised and distributed amongst the crew , as a reward for their care of seeing the body put into the sea. xi . the lading of the ship in construction of law is tacitly obliged for the freight , the same being in point of payment preferred before any other debts to which the goods so laden are lyable , though such debts as to time were precedent to the freight ; for the goods remain as it were bayled for the same : nor can they be attached in the masters hands ( though vulgarly is conceived otherwise . ) ships deserve wages like unto a labourer , and therefore in the eye of the law the actions touching the same are generally construed favourably for the ship and her owners : and therefore if . part owners of . shall make up their accounts with the freighters and receive their proportions , yet the fifth man may sue singly by himself without joyning with the rest ; and this as well by the common law , as the law maritime . xii . a ship in her voyage happens to be taken by an enemy , afterwards in battle is retaken by another ship in amity , and restitution is made , and she proceeds on in her voyage , the contract is not determined ; though the taking by the enemy divested the property out of the owners , yet by the law of warr that possession was defeazeable , and being recovered in battel afterward , the owners became re-invested : so the contract by fiction of law became as if she never had been taken , and so the entire freight becomes due . xiii . if freight be taken for tuns of wine , and of them leak out , so that there is not above . inches from the buge upwards , yet the freight becomes due : one reason is , because from that gage the king becomes entitled to custome ; but if they be under . inches , by some it is conceived to be then in the election of the freighters to fling them up to the master for freight , and the merchant is discharged . but most conceive otherwise , for if all had leaked out , ( if there was no fault in the master ) there is no reason the ship should lose her freight ; for the freight arises from the tunnage taken , and if the leakage were occasioned through storm , the same perhaps may come into an averidge ; besides , in burdaux the master stowes not the goods , but the particular officers appointed for that purpose , quod nota. perhaps a special convention may alter the case . most certain , if a ship freighted by the great be cast away , the freight vanishes ; but if by the tun or pieces of commodity , and she happens to be cast away , afterwards part is saved ; doubted whether pro rata she ought not to be answered her freight . xiv . if a merchant takes freight by contracting with a marriner that is not a master , he must be contented to sit down without any remedy against the owners ; but perhaps such a marriner for such act may subject himself to an action . but if there be a fault committed by a marriner which was hired or put in by the master or owners , there for reparation the owners become lyable . xv. the master is not bound to answer freight to the owners for passengers if they are found to be unable to pay . if a ship by charterparty reciting to be of the burden of tuns is taken to freight for a sum certain , to be paid at her return ; the sum certain is to be paid though the ship amounts not to that burden . if a ship is freighted after the rate of l. for every moneth that she shall be out , to be paid after arrival at the port of london ; the ship is cast away coming up from the downs , but the lading is all preserved ; yet the freight is become due : for the money arises due monthly by the contract , and the place mentioned is onely to shew where payment is to be made , for the ship deserves wages like a marriner who serveth by the month ; and though he dyes in the voyage , yet his executors are to be answered pro rata : besides , the freight becomes due by intendment on the delivery or bringing up of the commodities to the port of london , and not of the ship. if the master enters into a charterparty for himself and owners , the master in that case may release the freighters without advising with the owners ; but if the owners let out to the freighters such a ship whereof j. s. is master , though the master covenant in the same charterparty and subscribes , yet his release in that case will not bind the owners , but the owners release on the other hand will conclude the master ; and the reason is , for that the master is not made a proper party to the indenture . and so it was rul'd , where an indenture of charterparty was made between scudamore and other owners of the good ship called the b. whereof robert pitman was master on the one party , and vandenstene on the other party ; in which indenture the plaintiff did covenant with the said vandenstene and robert pitman , and bound themselves to the plaintiff and robert pitman for performance of covenants in l. and the conclusion of the indenture was , — in witness whereof the said robert pitman put his hand and seal , and delivered the same ; in an action of debt brought upon the bond for performance of covenants , the defendant pleaded the release of pitman ; whereupon the plaintiff demurred : and it was adjudged , that the release of pitman did not barr the plaintiff , because he was no party to the indenture . and the diversity in that case was taken and agreed between an indenture reciprocal between parties on the one side , and parties on the other side , as that was ; for there no bond , covenant or grant can be made to or with any that is not party to the deed , but where the deed indented is not reciprocal , but is without a between , &c. as omnibus christi fidelibus , &c. there a bond , covenant or grant may be made to divers several persons . chap. v. of wreck . i. of goods wreckt as in relation to the alteration of the property by the civil law. ii. of the preservation of goods wreckt , and the punishment of those that should add misery to the condition of such persons so distressed . iii. of goods wreckt , their preservation according to the lawes of oleron , and of england , and of the punishment of those that shall not make restitution . iv. of contribution where the ship perishes , and the goods are all saved , and where not . v. the king of great britain's prerogative as in relation to wreck and other royalties of the sea. vi. of flotsam , jetsam and lagan , where the king shall have the same , and whether by the grant of wreck the same passes ; and where a subject may prescribe . vii . of ships wreckt and no creature in them , yet no wreck ; and of ships forsaken , whether in law accounted lost or wreckt , or neither . viii . of the sheriffs duty as in relation to goods wreckt ; and of owners their time of claiming their property . ix . wreckt goods not to pay custome . x. of wreck in the isle of wight , not in the admiral without special words . in matters of wreck there is as it were a contract between them which have lost their goods by such misfortune , and them upon whose lands the goods and merchandize are driven , that the same be restored to them , or those that claym under them . and therefore by the civil law it is precisely forbid , that no man shall meddle with such goods as are wreck'd ; and such as are proved to have stolne any thing thereout , are holden for robbers ; for that such goods being cast on land and recovered out of the sea , remains still his who was the owner thereof , and discend upon his successor ; neither escheat to the king , neither to any other to whom the king hath granted such royal priviledge . the reason why the laws were so strictly declared by the romans , was , for by the lawes of rhodes , if any ship had become wreck , though all the persons were saved and alive , yet the ship and goods became seizeable by the lords : but the same being barbarous , was afterward repealed and abrogated as well by those emperours in their territories , as here in england ; the first by the judgment of oleron , which provided in such misfortune , that if the merchant , marriners or merchants , or any of these escape and come safe to land , the same was not to be accounted wreck . the emperour constantine the great sayes in this case , if any ship at any time by any shipwreck be driven unto the shoare , or touch at any land , let the owner have it , and let not my exchequer meddle with it : for what right hath my exchequer in another mans calamity , so that it should hunt after gain in such a woful case as this is ? and yet if no kindred appear within a year and a day , and appearing prove not the goods shipwracked to be theirs , the goods come to the exchequer even by that law : so much that law condemns carelesness , which is written , vigilantibus & non dormientibus . and with this agrees the laws of oleron , and the lawes of this land , as taken out of those imperial laws , in that point , as is conceived . ii. the civil law was ever so curious and careful of the preserving the goods of such miserable persons , that if any should steal such , they should pay four-fold to the owner , if pursued within a year and a day ; and as much to the prince or his admiral : so carefully were , and so exact in requiring restitution , that the very stealing of a nayl or the worth thereof , obliged the thief to the restitution of all the remaining goods . and by the emperour antonius it was made a law for such sort of men , that they should be batten'd and banish'd for . years ; but that was onely for those of a high and honourable rank : but those that were base and ignoble , should be scourged and sent to the gallies , or metal mines . and the preventing of help to such shipwrackt persons was punisht with the same suffering as a murtherer . the like for those that shall put forth any treacherous lanthorn or light , with intention to subject them to danger or shipwrack , was punish'd with death . and though no harm happens , yet he may be punished : hence it is that fishers are forbidden to fish with lights in the night , for fear of betraying of saylors . but this good law does not extend to pyrats , robbers , sea-rovers , turks , or other enemies to the catholique faith. where a man , dogg or catt escapes alive out of the ship , neither the ship or other vessel , nor any thing therein shall be adjudged wreck , but the goods shall be saved and kept by the sheriff , coroners , or the kings bayliffs , and delivered to the inhabitants of the town where the goods are found ; so that if any within a year and a day sue for those goods , and after prove that they were his at the time of the shipwrack , they shall be restored to him without delay : but if not , they shall be seized by the said sheriff , coroners or bayliffs for the kings use , and shall be delivered to the inhabitants of the town , who shall answer before the justices for the wreck belonging to the king. where the wreck belongs to another he shall have it in like manner , and if any be attainted to have done otherwise , he shall suffer imprisonment , make fine to the king , and yield damage also . if a bayliff do it , and it be disallowed by his lord , the bayliff shall answer for it if he have wherewithall ; but if not , the lord shall deliver his bayliffs body to the king. the lawes of normandy agrees with this law. iv. if the ship perishes onely , and the goods are safe , in that case the goods ought to pay a proportion of a th or th penny , according to the easie or difficult winning or saving of the said goods ; rich goods , as gold and silver , and silk , pay less than goods of great weight and cumber , being in less danger , unless it were a wreck going into a port , for which the skipper was not bound for , there è contra , then the skipper is not to be considered . v. the king shall have wreck of the sea whales , and great sturgeons taken in the sea and elsewhere throughout the whole realm , except in places priviledged by the king. vi. by the grant of wreck will pass flotsam , jetsam , and lagan , when they are cast upon the land ; but if they are not cast upon the land , the admiral hath jurisdiction and not the common law , and they cannot be said wreck . wreccum maris , are such goods onely as are cast and left upon the land by the sea. flotsam , is when a ship is sunk or otherwise perished , and the goods float upon the sea. jetsam , is when the ship is in danger to be sunk , and for lightning the ship , the goods are cast into the sea , notwithstanding which the ship perisheth . lagan vel ligan , is when the goods which are so cast into the sea before the ship perishes , being heavy , are by the prudence of the master or marriners , who have an intent to save them so sunk ; as that they may come at them again , in order to which they fasten a buoy or other light matter that may signifie to them where they lye , if providence should bring them in a condition to retake them . the king shall have flotsam , jetsam and lagan when the ship perisheth , or when the owners of the goods are not known ; but when the ship perisheth not , è contra . a man may have flotsam and jetsam by the kings grant , and may have flotsam within the high and low water-mark by prescription , as it appears by those of the west countries who prescribe to have wreck in the sea , so far as they may see a humber barrel . vii . if a ship be ready to perish , and all the men therein for safeguard of their lives leave the ship , and after the forsaken ship perisheth , if any of the men be saved and come to land , the goods are not lost . a ship on the sea was pursued with enemies , the men for safeguard of their lives forsake the ship , the enemies take the ship and spoyl her of her goods and tackle , and turn her to sea ; by stress of weather she is cast on land , where it happened her men arrived : it was resolved by all the judges of england , that the ship was no wreck , nor lost . viii . if goods are cast up as wreck , and it falls out they be bona peritura , the sheriff may sell them within the year , and the sale is good ; but he must account to the true owners . owners clayming the wreck must make their proof by their marks or cockets , by the book of customes , or by the testimony of honest men ; and if the wreck belongs to the king , the party may sue out a commission to hear and determine , and that by the oaths of twelve men . or else he may bring his action at law , and make out his proof by verdict ; but such action must be brought within the year and day . note . flotsam , jetsam and lagan , are goods on or in the sea , and belong to the king , who by charter hath granted them to the lord admiral . ix . if goods are wreckt on the shoare , and the lord having power , takes them , he shall not pay custome . the admirals of england , ut magnus admirallus ; angliae , hiberniae , walliae , ac dominiorum & insularum earundem villae calisiae & merchiarum ejusdem nec non gasconiae aquitaniae , classium & marium dictorum regnorum angliae praefectus generalis , &c. which are the words of their patents used at this day , do claym all wrecks arising from any of those places , by vertue of their grants . x. king edward the second in the first year of his reign , by his charter granted the castle of carisbrook , with all the lands and tenements in the isle of wight , formerly belonging to isabella fortibus countess of albemarle , to his great favourite peter de gaveston and margaret his wife , and the heirs of their two bodies begotten , together with sundry other castles and lands ) and commanded nicholas de bosco , to put him into actual possession , and likewise commanded robert de sanson keeper of the forrest of parkhurst in that isle , to be intendent to them for the farm he had granted him for life for the custody thereof , which being after soon reseised into the kings hands , he granted this castle with all its services , and all his lands in that isle to edward his son and his heirs kings of england , and afterwards for the ascertaining what did of right belong to the same castle , an inquisition went out , by which it was found inter alia qd wreckn̄ maris pertinens ad dictum castrum valet ꝑ ann̄ s . so that by the general patent of the admiral will not pass the wreck of this isle , without special words granted in the patent . note , if the wreck happened , or was occasioned by reason of any fault or negligence in the master or marriners , the master must make good the loss ; but if the same was occasioned by the act of god to avoid an enemy or pyrat , and the like , there he shall be excused . chap. vi. of averidges and contributions . i. of goods and merchandize when subject to be cast over-board . ii. of the account rendred of such ejected goods , and by whom . iii. of the antient lawes of england as in reference to such ejectments . iv. what goods must come into the averidge , and what are exempt . v. the master discharged by such acts by the common law. vi. the ships geare or apparel whether within the averidge . vii . the residue of the goods where tacitly obliged to answer the averidge . viii . of goods remaining a shipboard spoyl'd by reason of the ejecting of others , where subject to the averidge . ix . where ship and lading are both made liable to the averidge . x. of misfortunes not subject to an averidge . xi . where the remainder of the goods are exempted from the averidge , and the damage of the ejected goods falls on the master . xii . damage to the ship where the lading contributes , and the standard rate in contributions . xiii . the master becomes a captive for the redemption of ship and lading , where lyable to the averidge , and where discharged . xiv . what goods are subject to the averidge . xv. contribution for pylotage , and where the remaining goods not subject to averidge . xvi . rules general for settling the averidge . i. ships being freighted and at sea , are often subject to storms , in which by the ancient lawes and customes of the sea , in extream necessity the goods , wares , guns , or whatsoever else shall be thought fit , may in such extremity be flung over-board ; but then the master ought to consult with his marriners , who if they consent not , and yet the storm and danger continues , the master may command notwithstanding , the casting overboard what he shall judge most fitting for the common safety of the rest . if there be a super cargoe , a request ought to be made to him to begin first ; but if he refuses , the marriners may proceed . ii. if the ship so fortunes as to out-weather the storm , and in safety arrives at her port of discharge , the master and the most of his crew must swear that the goods were cast over for no other cause but purely for the safety of the ship and lading . the custome of clearing of that point varies according to the several countries or places they arrive at . iii. king william the conquerour , and henry the first , made and ratified , this law concerning goods cast over-board by marriners in a storm , in imitation of the ancient rhodian law ; de jact ' . si ego jecero res tuas de navi ob metum mortis de hoc non potes me implacitare nam licet alteri damnum inferre ob metum mortis quando periculum evadere non potest . et si de hoc me mesces , qd ob metum mortis nil fecisse de comespriorai . et ea quae in navi restant dividantur in communi secundum catalla , et si quis fecerit catalla extra navim quando necessitas non exigerit ea restituat . iv. the ship arriving in safety , the remainder must come into the averidge , not onely those goods which pay freight , but all those that have obtained safety and preservation by such ejection , even money , jewels and clothes , and such like , are not exempted . but those things which are born upon a mans body , victuals and the like put a shipboard to be spent , are totally excluded from the contribution . the master ought to be careful that onely those things of the least value and greatest weight be flung over-board . v. as this law does take care that this common calamity should be born by all the parties interessed by a general contribution , so the common law takes notice of the misfortune , and makes provision to indempnifie the master ; and therefore if the party owner of such ejected goods shall bring an action against the master or owners of the vessel , the defendant may plead the special matter , and the same shall barr the plaintiff . vi. but if the ships gear or apparel be lost by storm , the same is not within the averidge , but is accounted like unto a workman breaking or spoyling his tools ; so for goods secretly brought into the ship against the master or pursers knowledg , no contribution is to be made , except in the avoiding of a danger , as the flinging the most overboard , or the slipping the tow-anchor or boat. this order is observed generally in the rating the remainder of the goods by way of contribution . if they chance to be cast over-board before half the voyage performed , then they are to be esteemed at the price they cost ; if after , then at the price as the rest or the like shall be sold at the place of discharge . vii . as the common law looks upon the goods and cargo as a pawn or pledge for the freight , so the maritime law looks upon them likewise as a security for the answering the averidge and contribution , and that the master ought not to deliver the goods till the contribution is settled ; the same being tacitly obliged for the one as well as the other . ad leg . rhod. l. . si non conservatis . viii . if through the rifling of the ship , or the casting or unlightning the ship , any of the remaining goods are spoyled either with wet or otherwise , the same must come in to the contribution for so much as they are made worse . ix . if it falls out that a ship entring into a port or channel cannot make way , and there be a lightning or disburdning of the ship , then the contribution falls two parts to the lading , and one third to the ship , except the ship surpass in value the lading , or that there is some bad quality in the ship it self . but to prevent that ambiguous question , if the party covenants that the goods shall be delivered at the port. covenanted and appointed , then condition makes law. so for the pylotts fee and raising of the ship off ground when there is no fault in the master . x. if two ships happen to encounter and cross each other , and the crew swear their innocency , contribution must be made by a just equality ; but if one perishes , then can there be no proportion of the loss , so no contribution . the reason that is given , for that otherwise a skipper might of purpose set an old weak ship against a strong ship , and by that means hedge himself into a contribution and recompence . however , this barrs not the owners from bringing their action against the negligent master , by which means he may recoope himself in damage , if it happens at sea , the action by the civil law is called legis aquilae . if such a misfortune happens in the night at sea , the party if he will compleatly arm himself for his recovery , ought to prove , that he made out light or fire , or otherwayes gave notice by crying or calling out . xi . if it falls out the ship or vessel by the indiscreet stowing or lading the ship above the birth-mark such ejection happen'd , in that case it has been used by the maritime lawes no contribution to be made , but satisfaction is to be answered by the ship , master or owners . xii . if to avoid the danger of a storm , the master cuts down the masts and sayls , and they falling into the sea are lost , this damage is to be made good by ship and lading pro rata : otherwise if the case happens by storm or other casualties . no contribution is to be paid in case one ship strike against another whereby damage happens , but full satisfaction is to be answered the merchant in case of fault or miscarriage in either ; or an equal division of the damage , in case it happen by a casualty , as above . if a lighter or skiff , or the ships boat into which part of the cargo is unladen for the lightning of the ship perish , and the ship be preserved , in that case contribution is to be made ; but if the ship be cast away , and the lighter , boat or skiff be preserved , there no contribution or averidge is to be had , it being a rule , no contribution but where the ship arrives in safety . xiii . if a ship happens to be taken , and the master to redeem the ship and lading out of the enemies or pyrats hands , promises them a certain sum of money , for performance whereof himself becomes a pledge or captive in the custody of the captor ; in this case he is to be redeemed at the costs and charges of the ship and lading , and money if there be any in her , are contributory according to each mans interest for his ransome . so where a pyrat takes part of the goods to spare the rest , contribution must be paid . but if a pyrat takes by violence part of the goods , the rest are not subject to average , unless the merchant hath made an express agreement to pay it after the ship is robb'd . but if part of the goods are taken by an enemy , or by letters of marque and reprizal , è contra . so likewise in storm , if the same is done for preservation of the remainder . xiv . in ejectment the master or purser of the ship shall contribute for the preservation of the ship , and also the passengers for such ware as they have in the ship , be it pearls , pretious stones , and such like ; and passengers that have no wares or goods in the ship , yet in regard they are a burthen to the ship , estimate is to be made of his and their apparel , rings and jewels , towards a contribution of the loss ; and generally all things in the ship except the victualling and provisions of the ship , and the bodies of men ( unless servants ) must bear a proportionable share in the contribution . the estimate being made of the goods lost and saved , the price is to be set down not for how much they were bought , but how much they might be sold , at the time when the ejectment was made ; and if any thing be flung into the sea and endamaged , and afterwards is recovered again , yet contribution is to be made onely for the damage . xv. contribution is to be paid for the pylot's fee that hath brought a ship into a port or haven for her safeguard , ( it being not the place she was designed for ) so to raise her off the ground when there is no fault in the master . if a master of a ship lets out his ship to freight , and then receives his compliment , and afterwards takes in goods without leave of the freighters ; and a storm arises at sea , and part of the freighters goods are cast overboard , the remaining goods are not subject to the averidge , but the master must make good the loss out of his own purse . the goods which are lost are to be valued , then the goods saved are to be estimated , which being known , a proportionable value is to be contributed by the goods saved , towards reparation of the goods ejected , or cast overboard . in which regard is alwayes had , not to what might be got by the goods lost , but what the intrinsick damage is by the loss of the same ; the which are not to be estimated what they might have been sold for , as what they cost or were bought for . but now the custome is general , the goods saved and lost , are estimated according as the goods saved were sold for ; freight and other necessary charges being first deducted . if there were plate , jewels or the like in a trunk , chest , pack or bale , at the time of their ejection , if there be a super cargoe he ought to give notice by discovering of the same to the master or marriners , otherwise he shall be answered in the contribution no more then the bare extrinsick value appeared to be ; but the assurors will hardly fare so well . if contribution shall be setled , and the merchant will not agree , the master may detain the lading , for the same is as tacitly obliged to answer that as the freight ; and if at the common law the merchant should bring an action , the defendant shall barr him by pleading the special matter . if goods are cast overboard , and afterwards are recovered ; contribution ceases , saving for so much as they are damnified and made worse by reason of such ejectment . note , goods cast overboard to lighten the ship make no derelict . and though such necessity seems to subject the lading to ejectment to prevent the ruine and destruction of the persons , yet some lading seems excepted , and therefore canon and other instruments or provisions consigned to relieve a city , ought not to be flung over-board ; for in such case the law imposeth on every subject , that he prefer the urgent service of his prince , before the safety of his life . chap. vii . of pollicies of assurance . i. assurances by whom first introduced . ii. assurances the nature of them . iii. how esteemed of by law. iv. the various wayes of ensureing , and on what . v. assurance when esteemed most dangerous , and of fraudulent pollicies . vi. of the receipt of preimio , and the custome of abatement on losses . vii . pollicies that now ensure against all the accidents of heaven and earth . viii . a ship ensured generally , whether the same includes the cargoe ; and whether it is necessary in the pollicy to mention the particular goods . ix . if the master is discharged of the damage , whether the ensurer may be made lyable . x. a ship ensured from a port , and she is burnt before her departure , whether the assurers are made lyable . xi . goods ensured in one ship , are afterwards in the voyage put into another , the second miscarries , whether the assurors are made lyable . xii . a man ensures more than the value of the cargo , the custome in such case . xiii . a ship is ensured from one port to another , and there to be landed ; the cargoe after arrival is sold , and before landing is burnt , whether the assurors shall be made answerable . xiv . a ship ensured from one port to ( blanck ) being in time of warr ) taken , whether the assurors shall answer . xv. of the ensureds renouncing after a loss ; and what operation the same has by custome . xvi . of the office erected by the statute of eliz. what power ; of the jurisdictions claymed by those at common law and the admiralty . xvii . what power and authority was given by the statute of eliz. to that court. xviii . what things it was deficient in : and holpen by the statute of car. . cap. . and of their authority and power general at this day . xix . of the advantage●… that seem to accrew to publique assurances , different from privat●… ones . it is conceived by suetonius , that claudius caesar was the first that brought in this custome of assurance , by which the danger and adventure of voyages is divided , repaired and born by many persons , who for a certain sum by the spaniard called premio , assure ship or goods , or both , or a proportion , according as the pollicy is . ii. assurances are either publique or private ; publique , when they are made and entred in a certain office or court , commonly called the office of assurance in the royal exchange in london ; and the same are called publique , for that it is free for any man to resort and see what another hath assured upon his adventure . private is , when an assurance is made , but the ensured keeps the same secret , not deeming it fit that any should see or know their cargoe or adventure , or what premio they have given , or assurance they have made ; and the same being never entred in the office , is known by the name of a private assurance . iii. by the common law they are both of the same validity , as in reference to obtain satisfaction from the ensurors , if loss or damage should happen to the adventure . but by the proceedings erected by statute of eliz. cap. . onely those that are entred in the office of that court , can be sued or determined there . iv. assurances are of various sorts , some being to places certain , others general ; those that are made to places certain , are commonly upon goods laden or to be laden aboard outward , and untill the same adventure shall be laid ashoare at such a port. or upon goods laden or to be laden homeward in such a ship till the adventure shall likewise be landed . or else upon goods out and in , with liberty to touch at such ports as are mentioned in the pollicy . so likewise on ships that go trading voyages , as round to cales ; and that it shall be lawful after the ships delivery there , to take in at the same port another cargoe , and with that proceed to the west-indies or other parts , and back again to cales , and from thence to london , this pollicy being general and dangerous , procures seldome subscriptions . as goods and merchandize are commonly ensured , so likewise are the ships tackle and furniture ; but in regard there seldome happens a voyage but somewhat is missing or lost , the premio commonly runs higher then for merchandize . assurances may be made on goods sent by land , so likewise on hoyes and the like . v. those assurances are most dangerous when there are these words inserted lost or not lost ; which is commonly done when a ship hath been long missing and no tydings can be had , the premio especially in time of warr will run very high , sometimes or per cent ' ; and though it happens at the time that the subscription is made the ship is cast away , yet the assurers must answer . but if the party that caused the assurance to be made saw the ship wreckt , or had certain intelligence , such subscription will not oblige , the same being accounted a meer fraud . so likewise if the assured having a rotten vessel shall assure upon the same more then she is worth , and afterwards give order that going out of the port she should be sunk or wreckt ; this will be fraudulent , and not oblige the assurors to answer . vi. few or scarce any ensure the whole ship , but the subscriptions being for sums certain , as l. or l. at the premio then current , which when the adventure is born they receive ; but if a loss happens , the premio is deducted together with the usual abatemate : so that the ensured receive much about per cent. if a loss happens . vii . the pollicyes now adayes are so large , that almost all those curious questions that former ages and the civilians according to the law maritime , nay and the common lawyers too , have controverted , are now out of debate ; scarce any misfortune that can happen , or provision to be made , but the same is taken care for in the pollicyes that are now used ; for they ensure against heaven and earth , stress of weather , storms , enemies , pyrats , rovers , &c. or whatsoever detriment shall happen or come to the thing ensured , &c. is provided for . viii . if a merchant ensures such a ship generally , and in the pollicy it is expressed of such a burthen , the ship happens then to be loaden and after miscarries , the ensurer shall not answer for the goods , but onely for the ship. it matters not in the pollicy whether the particular wares and goods are named , but generally upon the principal wares , and all other commodities laden or to be laden for the ensured or for his account , or for any other . x. if a ship be ensured from the port of london to cales , and before the ship breaks ground takes fire , and is burnt , the assurors in such case shall not answer , for the adventure begun not till the ship was gone from the port of london ; but if the words had been , at and from the port of london ; there they would upon such a misfortune have been made lyable . if such an assurance had been from london to cales , and the ship had broke ground , and afterwards been driven by storm back to the port of london , and there had took fire , the ensurers must have answered ; for the very breaking of ground from the port of london was an inception of the voyage . xi . if goods are ensured in such a ship , and afterwards in the voyage it happens she becomes leaky and creazy , and the super cargoe and master by consent become freighters of another vessel for the safe delivery of the goods ; and then after her relading the second vessel miscarries , the assurors are discharged : but if there be these words , the goods laden to be transported and delivered at such a place by the said ship , or by any other ship or vessel untill they be safely landed , then the ensurers must answer the misfortune . xii . if a man ensures l. worth of goods , and he hath but l. remitted , now he having ensured the real adventure , by the law maritime all the assurors must answer pro rata . but by the opinion of some , onely those first subscribers who underwrit so much as the real adventure amounted to , are to be made lyable , and the rest remitting their premio s. per cent. deducted out of the same for their subscriptions , are to be discharged . xiii . a merchant ensures his goods from london to sally , and there to be landed ; the factor after arrival having opportunity sells the cargo aboard the same ship without ever unlading her , and the buyer agrees for the freight of those goods for the port of venice ; before she breaks ground , the ships takes fire , the assured is absolutely without remedy ; for the property of the goods becoming changed , and freight being contracted de novo , the same was as much as if the goods had been landed . and so it is if the factor after her arrival had contracted for the freight to another port , and the ship had happened to take fire , the assurors are hereby absolutely discharged for ever . xiv . if a ship be ensured from london to and blanck being so left of purpose by the lader to prevent her surprize by the enemy , in her voyage she happens to be cast away , though there be private instructions for her port , yet the ensured sit down by the loss by reason of the uncertainty . xv. after notice of loss , the ensured , ( if he doth think fit ) for that he hath ensured the most of his adventure , or that he would have the assistance of the assurors ; when there is hope of recovery of the adventure , he may then make a renunciation of the lading to the assurors , then he comes in himself in the nature of an ensurer , for so much as shall appear he hath born the adventure of beyond the value ensured . but if the merchant shall not renounce , yet there is a power given in the pollicy for him to travail , pursue and endeavour a recovery ( if possible ) of the adventure after a misfortune to which the assurors are to contribute , the same being but a trouble to give ease to the assours . if prohibited goods are laden aboard , and the merchant ensures upon the general pollicy , which alwayes contains these words ; of the seas , men of warr , fire , enemies , pyrats , rovers , theeves , jettezons , letters of mart , and covenants , arrests , restrainment and detainments of kings and princes , and of all other persons , barratry of the master and marriners , and of all other perils , loss●…s and misfortunes whatsoever they be , and howsoever they shall happen or come , to the hurt and detriment of the goods and merchandize , or any part and parcel thereof ; whether if such goods be lawfully seized as prohibited goods , the ensurors ought to answer ? it is conceived they ought not ; and the difference hath been taken , where goods are lawful at the time of lading to be imported into that country for which they are consigned for , but by matter ex post facto after the lading they become unlawful , and after arrival are seized , there the assurors must answer , by virtue of the clause , and all other perils , &c. but if the goods were at the time of lading unlawful , and the lader knew of the same , such assurance will not oblige the assurors to answer the loss ; for the same is not such an assurance as the law supports , but is a fraudulent one . so it is if a merchant will freight out wooll , leather , and the like , or send out goods in a forraign bottome and then make a pollicy , the ship happens afterwards to be taken , by reason of which there becomes a forfeiture of ship and lading ; the ensurers are not made subject to answer the damage : for the very foundation was illegal , and the law supports only those assurances that are made bona fide ; for if otherwise , and men could be ensured against such actions , they would destroy trade , which is directly to thwart the institution and true intentions of all pollicyes . but if goods should happen to be lawfully ensured , and afterwards the vessel becomes disabled , by reason of which they relade by consent of the super cargoe or merchant into another vessel ; and that vessel , after arrival , proves the ship of an enemy , by reason of which the ship becomes subject to seizure : yet in this case the ensurors shall answer , for that this is such an accident as is within the intention of the pollicy . several men lade aboard salt , without distinction , not putting them in sacks , and the like ; the ship arrives , the master delivers to their principals according to their bills of lading as they come one by one , it falls out that some of the salt is w●…sht or lost by reason of the dampness of the ship , and that the two last men cannot receive their proportion : there are in this case these things to be considered : . whether the master is bound to deliver the exact quantity ? . whether those that have received this loss can charge the assurors ? . whether the assurors can bring in the first men for a contribution , they having their salt delivered to them compleatly . certainly the master is not bound to deliver the exact quantity , nor is he obliged to redeliver thev ery specifical salt , but onely as men are to repay money or corn by the distinction in a bagg or sack , and out of them ; but if the fault was in not pumping , keeping dry his deck , and the like , there è contra : though perhaps there may be special agreement . besides , this is a peril of the sea against which the master could not prevent , and of necessity he must deliver to one first before another . as to the second , it is no question but that the assurors shall answer . but whether they shall bring in the first men for contribution , may be some doubt . it has been conceived by some , that they ought not , for they delivered their salt to the master tanquam in creditum , and was not to expect the redelivery of the same specifical salt : besides , the master must of necessity deliver to one man before another . but by others it has been conceived they ought to contribute per ratione , for as goods of necessity some must be stowed in the hold , and that such goods seldome fail without a perill of the sea ; so the rest must of necessity contribute to that misfortune , and so make no distinction . the bills of lading are very useful to settle the difference between the assuror and assured , of which there are . parts , one sent over sea ; the other left with the master ; and the last remaining with the lader . xvi . the office of assurance was erected by the statute of eliz. cap. . which reciting , that whereas differences growing upon pollicyes of assurances had been ordered by discreet merchants approved by the lord mayor , who did speedily decide those causes , untill that of late years divers persons did withdraw themselves from that arbitrary course , and have sought to draw the parties assured to seek their moneys of every several assurer by suits commenced in her majesties court to their great charges and delay ; whereupon it was enacted , that the chancellor or keeper for the time being should issue forth a standing commission ( to be renewed yearly , or as often as to him shall seem meet , ) for the hearing and determining of all such causes arising on pollicies of assurance as shall be entred in the office of assurance in london . the judges or commissioners appointed are the judge of the court of admiralty , the recorder of london , two doctors of the civil law , two common lawyers , . grave and discreet merchants , or to any . of them ; and that they or the greatest part of the commissioners have power to hear , examine , order and decree all such causes in a brief and summary way without formality of pleading . they have power to summon the parties , examine witnes●…s upon oath , commit to prison upon refusal of obedience to their decrees ; they are to meet once a week at the assurance office , or some other convenient publique place , and no fees at all are to be exacted by any person whatsoever . there lyes an appeal from their sentence to the lord chancellor or lord keeper ( but the party must deposite the moneys decreed , and then ( though the party be imprisoned he may be discharged ) and then it lyes in the lord chancellors or keepers breast to affirm or reverse , and to award the party assured double costs . no commissioner being party assuror can act by vertue of this commission , nor untill he hath taken his corporal oath before the major and court of aldermen , to proceed uprightly and indifferently between party and party . xvii . this was a good act , had it been as carefully penn'd as was intended ; for there were many things in which this act did not extend to . first , any man may at this day make a private pollicy notwithstanding this act , which is as good and effectual in law to all intents and purposes , as one made and entred in the said office ; and that such a pollicy might and may be now sued at the common law. secondly , the number of commissioners being so great that there could be no court without . at the least ; and without a court they neither could summon parties or examine witnesses , and that was very difficult to get . thirdly , if the parties or witnesses refused to appear , they had no power to punish the party for the delay , with costs or otherwise , which was very mischievous . fourthly , no commissioner could sit before he was sworn : commissions and the commissioners being often renewed , it was a trouble to be attending a court of aldermen , which was difficult sometimes of the year to get . fifthly , though they had power to commit the party who refused to obey their decree , yet they had no power to make any order against the ship. which matters being taken into consideration , it was enacted , that . commissioners , whereof a doctor of the civil law , and a barrister of . years standing to be one should make a court , and to act as any . before might have done . they have likewise power now given them to summon parties and witnesses , and upon contempt or delay in the witnesses upon the first summons and tender of reasonable charges : and in the parties upon the second summons to imprison offendors or give costs . every commissioner is now to take his oath before the lord major to proceed uprightly in the execution of the said commission ; and any of them may administer an oath so as the adverse party may have notice , to the end such person may be fairly examined . commissions may issue out of the court of admiralty for examining of witnesses beyond seas , or in remote places by directions of the commissioners , and decrees may be made against body and goods , and against executors and administrators , and execution accordingly ; and assess costs of suit as to them shall seem just . but execution cannot be against body and goods for the same debt , but the party must make his election as at the common law. xviii . but these statutes took not away that cognizance which the courts at westminster claymed upon such contracts by the common law ; but onely gave this new erected court a concurrent jurisdiction with those at the common law : for though the loss happened out of the realm , yet they had jurisdiction of the cause . and therefore if an action is brought upon a pollicy of assurance , though the loss happened at sea , yet the jury shall enquire ; for the loss is not the direct ground of the action , but the assumpsit . the admiralty have likewise put in if not for an absolute jurisdiction , yet at least a concurrent one ; yet both have been denyed them , notwithstanding that the judge of the admiralty is judge of the court of assurance . xix . by the making of an office pollicy according to the statute , these advantages will follow . . if the pollicy be lost , if the same be entred with the register of the office , the entry is effectual to answer the matter both at the common law , as well as in the same court ; but a private pollicy lost is like a deed burnt , unless that there be very strong evidence , as a copy and the like , it will be of little value . so that then there will remain nothing but an equitable relief in chancery , for the satisfaction the party . . if a man freights out a ship from london to cales , and assures here , he may write to his correspondent to make an assurance there of the same ; if the matter comes before commissioners , they may examine the ensured upon oath , and determine therein according to law and the custome of merchants : but at the common law the same cannot be , but relief must be had in that point according to equity in chancery . . the same is a court of equity as well as a court of law. . they may decree against assurors at one time , but at law they must be sued distinctly ; but they cannot compel the defendants to put in bayl. . they may proceed out of term as well as in term ; and ( if the matter will bear it ) they may finish a cause in a fortnights time . . the judgments there given are generally upon mature deliberation , and by persons well skilled in maritime affairs ; and if their sentence is thought to be unreasonable , the lord chancellor or lord keeper may on appeal determine the same . chap. viii . of prisage and butlerage . i. what is prisage , where taken , and of what . ii. merchant strangers exempted from the same . iii. when due , and the exemption of the citizens of london from the same . iv. what citizens are capable , and where not . v. a forraigner imports and makes a citizen executor and dyes ; whether he shall have the benefit of the immunity . vi. where a forraigner sells to a citizen before , but he broken , the vendee shall be chargeable . vii . where a grant to discharge a particular ship shall be good ; and where a grant to particular persons shall be otherwise . viii . of butlerage what and whom are exempted . ix . where the king becomes entituled to those duties . x. a grant to be free of all customes , impositions , &c. extends not to prisage and butlerage . xi . cinque-ports exempted from prisage . i. prisage , is a certain taking or purveyance for wine to the kings use ; the same is an ancient duty which the kings of england have time out of mind had and received ; the manner hath been by taking of every ship or vessel that should come into this realm , if ten tun , to have for prisage one tun : and if it contain tun or more , to have two tun ( viz. ) unum ante doleum , and the other deorsum , paying s. for each tun : and this ancient immunity they have enjoyed as a flower of the crown , and by some has been conceived not grantable away without act of parliament . but yet in e. . fo . . case . mentions the same to be grantable over . ii. king edward the first having laid some impositions on the merchants , which in anno . of his reign being taken away with promise that neither he nor his successors should do any such thing without assent of parliament : in . of his reign they granted him an encrease of customes ; in lieu of which he granted them many immunities , as release of prisage , &c. iii. prisage is not due till the unlading , or that which is commonly called breaking of bulk ; for the words are , de qualibet navi important vini & disonerant inde . king edward the third by his charter dated . martij anno regni primi , granted his royal charter of discharge to the major , commonalty and citizens of london , in haec verba , ( viz. ) quod de vinis civium nulla prisa fiat , sed perpetue inde essent quieti , &c. which was afterwards allowed in the exchequer . iv. it is not every citizen that is capable of this priviledge , but onely those that are resiant within the city : and so it was rul'd in the case of one knowls , who being a citizen and free grocer of london , removed his houshold cum pannis , and did dwell at boistol , but yet kept his shop in london ; and a ship of his arriving with wines at london , and being unladen , the prisage was demanded ; he claymed the benefit of discharge . it was adjudged , he was not capable of the same : for he that will claym the benefit of this discharge , ought to be civis incola comorans . h. . ( a private act of parliament , ) complaint was made , that the lord major of london would make strangers citizens ; it was there declared , that this benefit to be discharged from payment of prisage , did not extend to such citizens as were dotati , made free , but unto those citizens onely which are comorant incolant , and resiant within the city . v. if a forreigner brings a ship laden with wines into the port of london , and then makes a citizen his executor and dyes , he shall not have the benefit of this immunity from payment of prisage for these wines , for that they are not bona civium . vi. if a forreigner arrives with a ship laden with wines at a port with an intent to unlade , and before the goods are entred or bulk is broken , he sells them to a citizen , prisage shall be paid notwithstanding , for it was never the kings grant to discharge a citizen in such a manner . vii . if the king does discharge such a ship of j. s. being at sea , particularly naming the same , from the payment of prisage , and he dyes before the ship arrives , no duty can be demanded . but it has been held , if a particular person has a grant to him to be discharged of his goods , and he dyes before the arrival , the duty shall be paid . a quo warranto was brought against three archbishops of york , to shew cause why they demanded to have prisage for wines brought into the port of hull . the two first pleaded to have onely the first taste , and a pre-emption after prisage paid : but the third pleaded a charter of e. . by force of which he claimed the same ; and rul'd not good . for though the charter might be good , yet it was held in that case , a disclaymer by the predecessor should bind the successor : and at this day , the duke of ormond in ireland hath an inheritance in the prisage of wines by the kings charter . viii . butlerage is a custome due from merchant-strangers of s . upon every tun of wine brought into this realm by them . king john granted to the merchants of aquitaine trading for wines thence into england divers liberties , amongst others , libertatibus concessis mercatoribus vinetarijs de ducatu aquitaniae reddendo regi & heredibus suis . s. de quolibet dolio vini ducti per eosdem infra regnum angliae vel potestate regis . all merchants strangers in consideration of the grant to them by the king of divers liberties and freedomes , concesserunt de quolibet dolio vini quod adducent vel adduci facerent infra regnum &c. solvent nobis & heredibus nostris nomine custumae duos solidos &c. it is called butlerage , because the kings chief butler doth receive it . and the double value of these duties is made penal if any person customes goods in another mans name whereby to defraud the king of prisage and butlerage . ix . breaking of bulk is that which entitles the king to the duty : for if a merchant imports wines to the number of tuns , yet if he unlades but part , as . or . tun , yet the king shall have the entire prisage ; and though the custome seems to declare , that the taking must be as well before as after the mast , yet is not the officer tyed to that strictness , but may take where he pleases ; for two tuns are the kings due : for otherwise he might be cozened , the freighter perhaps lading other commodities aboard after the mast. if there be but one tun taken out , yet the duty must be paid : the reason is , for that otherwise the officer should be obliged to travail perhaps all over the kingdome . x. the king granted to a venetian merchant that he should be quit , did omnibus custumis subsidijs & impositionibus & omnibus alijs denariorum summis debitis & solubilibus pro quibuscunque merchandizis importandis ; and that he should be as free as the citizens of london : in that case it was adjudged in the exchequer , that by that grant the king did not discharge him of prisage , because the prisage was not specially expressed in the grant , although that the city of london were by a special charter freed of prisage . xi . the cinque-ports are likewise discharged of prisage . chap. ix . of pylots , wharfage , primage , averidge , loadmanage . i. of the pylots charge till the ship is brought to her place or bed . ii. if the ship is likely to miscarry , what the ships crew may do at such time . iii. of ignorant pylots their punishment , and if the ship miscarries , who shall answer . iv. of wharfage , and where the wharfinger shall answer , and where not . v. primage and petilodmanage where due , and for what ; and if the ropes break , where the master , and where the wharfinger shall answer . vi. petty averidge where due , and for what , and hatt money . vii . loadmanage where due , and for what . i. by the lawes of oleron after that the pylot hath brought the ship to sure harbour , he is no further bound or lyable ; for then the master is to see her bed and to her lying , and bear all the rest of her burthen , charge and danger , except that of the act of god ; so that before she comes to her place or bed , and while she is under the pylot's charge , if she or her goods perish , or be spoyled , the pylot must make good the same . ii. by the lawes of oleron , if his fault is apparantly gross that the ships crew sees an apparent wreck , they may then lead him to the hatches and strike off his head ; but the lawes of england allow no such hasty execution . by the lawes of denmark an ignorant pylot is to pass thrice under the ships keel . the master generally in the charterparty covenants to find a pylot , and the merchant covenants to pay him his pilotage . iii. but if a ship should miscarry coming up the river under the charge of the pylot , it has been a question , whether the master should answer in case of the insufficiency of the pylot ; or whether the merchant may have his remedy against both ? it hath been conceived the merchant hath his election to charge either ; and if the master , then he must lick himself whole of the pylot . iv. wharfage is money paid for landing wares at a wharfe , or for shipping or taking in goods into a boat or barge , they commonly keep boats or lighters of their own for the carrying out and bringing in of goods , in which if a loss or detriment happens , they may in some cases be made lyable . an action of the case grounded on the custome of the realm was brought against the defendant master of a wharfe , for not safe delivering of goods , &c. the case appeared to be thus ; the master unladed a bale of silk into the wharfingers lighter , and sent part of his marriners to convey it ashoare ; it happened that the goods were stole : the question was , whether the wharfinger or the master should answer ? upon a tryal at guild-hall before my lord chief justice hale , it was there rul'd , that the master was lyable , and not the wharfinger ; for till they are landed , the master hath them under his power : but if goods are to be sent aboard , there if they miscarry in their passage , the wharfinger must answer . v. primage and petilodmanage is likewise due to the master and marriners for the use of his cables and ropes to discharge the goods ; and to the marriners for loading and unloading of the ship or vessel , it is commonly about twelve pence per tun. if the ropes break in hoysting of goods out of the ship into the lighter or boat , the master must answer if the goods be damnified or lost . but if the roapes break at the crane in taking them out of the lighter , ( although till they are landed , they are not out of the masters custody ) yet the wharfinger shall answer . vi. petty averidge is another little small duty which merchants pay to the master when they onely take tunnage , over and above the freight , the which is a small recompence or gratuity for the masters care over the lading ; and in the bills of lading they are exprest after freight , together with primage and averidge accustomed . the french ships commonly term the gratuity hatt-money , and our english merchants pay it our masters over the freight , it is sometimes more , sometimes less ; two or three pieces . vii . loadsman , is he that undertakes to bring a ship safe through the haven to the key or place of discharge , and if thorough his ignorance , negligence or other fault he suffereth the ship or merchandize to perish , an action lyes against him at the common law ; and by some conceived he may be punished in the admiralty , but not in both . the hire is called loadmanage , the which the pylate receives of the master for conducting the ship up the river , or into the port to her convenient bed. if two ships lye in a harbour , and the anchor of one is feared may occasion to damnifie the other , if after request and refusal ( and there be probable cause , the other may take up the same , and let the same down at a further distance , and the same is opposed or hindred , if any damage happens they are to make full satisfaction ; so it is if they lay out an anchor and neglect the placing of a buoy to the anchor , and damage happen thereby , they are not onely subject to be punished in the admiralty , but likewise to render satisfaction to the party damnified . if two ships be in the river , and the one falls foul on the other both being laden , by the law maritime the contribution is to be in common , and to be equally divided and apprized half by half ; but then the marriners must swear there was no fault in them : for otherwise one that hath an old rotten vessel which he can no wayes dispose of , may so order the matter as to lay her in the way of a good ship under sayl , so that the same may be answered in damage : but when the contribution is made equal , then the contrivance will be avoided . chap. x. of bills of exchange . i. of the antiquity of exchange by the hebrew law. ii. of the antiquity of exchange by the romans . iii. of exchanges by other nations in imitation of those people . iv. of the several sorts of exchanges , and of cambio commune . v. of cambio real , or exchanges value for value . vi. of cambio sicco , or dry exchanges . vii . of cambio fictitio , or seigned exchange . viii . of the exchanges used this day , and on what . ix . how exchanges are made , and upon moneys in london . x. moneys paid generally , how repaid by exchange . xi . of bills of exchange payable at single usance . xii . bills of exchange at double or treble usance , and of the customary usances to certain places from london and amsterdam to other places . xiii . of the nature of bills of exchange , and how esteemed of by the lawes of england . xiv . bills drawn more then one , no prejudice to the parties ; and of the true measure of judging on bills by custome . xv. what amounts to an acceptance generally , and on refusal where to be protested xvi . all the drawers are made lyable ; and whether the party to whom the money is made payable is bound to procure an acceptance . xvii . protest , what is meant by the same ; and where the same is necessary , and where not . xviii . bill drawn on two persons , where the same is necessary , and where not . xix . one factor serves a company , where a bill accepted of his by one of the company obliges the rest , and where not . xx. what words amount to an acceptance , and what not . xxi . where a bill may be accepted for part , and what must be done with the bill thereupon . xxii . when a countermand may legally be made , and when not . xxiii . how the several parties interessed in a bill of exchange are obliged and fettered to each other . xxiv . how a collateral security may be annexed to a bill when the time is elapsed for non-payment . xxv . where the protest is onely necessary to be kept , and where that and the bill must both be remitted . xxvi . bill lost , what is necessary for the parties interessed in such case to act . xxvii . of blanck endorsements , the validity of the same . xxviii . a bill once accepted , whether the same may be revoked ; and whether it may be accepted to be paid at a longer time then is mentioned : and what protests are then necessary to be made . xxix . of bills accepted for the honour of the drawer , where the same shall oblige . xxx . the time customary allowed for payment after failer of payment at the day . xxxi . of the validity of the speedy protest as in relation to recover the money to be paid on the drawer . xxxii . bill accepted , and before the day of payment the acceptor is a sayling , what 's necessary to be done as in reference to obtaining better security . xxxiii . bills accepted for the honour of the drawer , where turned into an act and remitted by him that gives honour to the bill . xxxiv . the acceptor ready to pay , but the party to whom made payable is dead , what is necessary . xxxv . causes general for a protest , and where satisfaction to the deliverer discharges all parties . xxxvi . of exchange by way of credit . xxxvii . one payes a bill before it be due , and the party to whom the same was paid fails , where he shall be answerable to the drawer notwithstanding . xxxviii . of bills assignable over according to the customes of merchants , what operation in england . i. the exchange for moneys is of great antiquity as well by observation of the hebrew customes , as those of the romans . upon the first of the month adar , proclamation was made thoroughout all israel , that the people should provide their half sheckl●… which were yearly paid towards the service of the temple according to the commandement of god ; on the th of adar then they brought tables into the temple , ( that is , into the outward court where the people stood ) on these tables lay the lesser coyns which were to furnish those who wanted half sheckles for their offerings , or that wanted lesser pieces of money in their payment , for oxen , sheep , doves and the like which stood there in a readiness in the same court to be sold for sacrifices ; but this supply and furnishing the people from those tables was not without an exchange for other money , or other things in lieu of money , and that upon advantage : hence all those that sate at the tables were called chief bankers , or masters of the exchange . ii. by the romans it is supposed to be in use upwards of years , moneys being then elected out of the best of metals to avoid the tedious carriage of merchandize , from one countrey to another : so other nations imitating the jewes and romans , erected mints , and coyned moneys , upon which the exchange by bills was devised , not onely to avoid the danger and adventure , but also its troublesome and tedious carriage . iii. thus kingdoms and countreys having by their soveraign authorities coyned moneys , caused them to appoint a certain exchange , for permutation of the various coyns of several countreys , without any transportation of the coyn , but giving par pro pari , or value for value , with a certain allowance to be made those exchangers for accommodating the merchants . iv. as commerce became various , so exchange numerous ; but generally reduced to four , cambio commune , cambio real , cambio sicco , and cambio fictitio . cambio commune in england was those that were constituted by the several kings , where having received moneys in england , would remit by exchange the like sum to be paid in another kingdome . edward the third , to ascertain the exchange , caused tables to be set up in most of the g●…eral marts or ports of england , declaring the values of all or most of the forraign coyns of those countries where his subjects held correspondence or commerce , and what allowances were to be made for having moneys to be remitted to such countryes or kingdoms . v. cambio real , was when moneys were paid to the exchanger , and bills were drawn , without naming the species , but according to the value of the several coyns , which two offices afterwards were incorporated , and indeed was no more but upon payment of moneys here in england to be repaid the just value in money in another countrey , according to the price agreed upon between the officer and deliverer to allow or pay for the exchange of the money and the loss of time . vi. cambio sicco , or dry exchange , is when a merchant hath occasion for l. for a certain time , and would willingly pay interest for the same ; the banker being desirous to take more than the statute gives , and yet would avoid the same , offers the l. by exchange for cales , whereunto the merchant agrees ; but the merchant having no correspondence there , the banker desires him to draw his bill , to be paid at double or treble usance , at cales , by robin hood , or john-a-noakes ( any seign'd person ) at the price the exchange is then curant ; accordingly the merchant makes the bill , and then the banker payes the moneys ; which bill the banker remits to some friend of his to get a protest from cales for non-payment , with their exchange of the money from cales to london , all which with costs , the merchant is to repay to the banker ; sometimes they are so conscientious as not to make above per cent. vii . cambio fictitio , when a merchant hath occasion for goods to freight out his ship , but cannot well spare money ; the owner , of the goods tells him he must have ready money ; the buyer knowing his drift it is agreed , that the seller shall take up the moneys by exchange for venice , or any other parts ; but then the merchant must pay for exchange and re-exchange . so likewise where the merchant is become indebted to the banker ▪ they are contented to stay , the merchant paying exchange and re-exchange ; the which he will most certainly compel him to do . these two last wayes of grinding the face of the generous merchant , was afterwards prohibited , but , notwithstanding it was found impossible to moderate the inequality of exchanges , and to have value for value : so that at this day it seems to be a cold , that many an honest man is apt to catch . viii . the just and true exchange for moneys that is at this day used in england ( by bills ) is par pro pari , according to value for value ; so as the english exchange , being grounded on the weight and fineness of our own moneys , and the weight and fineness of the moneys of each other countrey , according to their several standards proportionable in their valuation , which being truly and justly made , ascertains and reduces the price of exchange to a sum certain for the exchange of moneys to any nation or countrey whatsoever : as for instance , if one receives l. in london to pay l. in exeter ; this by the par. but if a merchant receives l. in london to pay l. at paris , there the party is to examine and compare the english weight with the weight of france , the fineness of the english sterling standard with the fineness of the french standard ; if that at paris and that at london differ not in proportion , then the exchange may run at one price , taking the denomination according to the valuation of the moneys of each countrey ; but if they differ , the price accordingly rises or falls : and the same is easily known , by knowing and examining the real fineness of a french s. piece , and an english s. piece , and the difference which is to be allowed for the want of fineness or weight , which is the exchange , and so proportionably for any , sums or moneys of any other countrey ; the which is called par , or giving value for value . but this course of exchange * is of later years abused , and now moneys are made a meer merchandize , and does over-rule commodities , and moneys rise and fall in price according to the plenty and scarcity of money . ix . as money is the common measure of things between man and man within the realm , so is exchange between merchant and merchant within and without the realm ; the which is properly made by bills when money is delivered simply here in england , and bills received for the repayment of the same in some other country either within the realm or without the realm , at a price certain , and agreed upon between the merchant and the deliverer . for there is not at this day any peculiar or proper money to be found in specie whereupon outland exchanges can be grounded ; therefore all forraign coyns are called imaginary , at london all exchanges are made upon the pound sterling of s. and d. to the shilling , for germany , low-countries , and other places of traffique ; and for france upon the french crown : for italy , spain , and some other places , upon the ducat : for florence , venice , and other places in the streights , commonly by the dollar , and florin . x. bills drawn to be paid , are either at sight , or a time certain , single , double or treble usance , and are commonly about . for fear of any miscarriage . the taking and delivering money at sight binds the taker up to give his bill to pay at sight , or within some short time the like sum after such a rate the pound , dollar , ducat or crown , as is agreed between them in forraign coyn , either according to the valuation of moneys , or currant moneys for merchandize . xi . the second time of payment is called usance , it is known or taken to be the compass of one month , to be computed from the date of the bill , and that governed according to the custome of the place where those exchanges do run . xii . the third is double or treble usance . or . months ; sometimes there are exchanges made upon half usance . the times of payment do alter the price of exchanges according to time , commonly after , , or in the hundred by the year . usance from london to middleborough are generally accounted one months time from the date of the bill . amsterdam antwerpe bridges rotterdam lisle roane paris the bills may have a larger , sometime a shorter time , there is no direct certainty , but onely that single usance is a month , double usance . months , &c. usance from amsterdam to rome are generally accounted months from the date , &c. genoa venice naples palermo luca sevill lisbon from london to florence is sometime accounted treble usance from the date of the bill . venice leighorne zant aleppo luca. xiii . excambium vel cambium , or as the civilians term , permutatio ; billa excambij signifieth no more but a customary bill , solempnized by a numerous consent of traders , to have a respect more then other bills , though of as high and as intrinsical a value : and those that give such bills were called exchangers , or bankers . though the act was no more but to keep up the life of commerce , ( without which it is impossible for any nation to flourish ; ) yet could not any person draw such bills , or return money beyond seas , without licence first obtained of the king. but at this day any man may do it without being obliged to obtain such leave . xiv . such a bill being drawn , they commonly take one or two more of the same date word for word , onely this clause is inserted in the second , my first of the same date persons and sum not being paid : and in the third , my first and second of the same date , and contents not being paid . the right measure of judging on bills of exchange , is purely by the laudable custome often reiterated over and over , by which means the same hath obtained the force of a law , and not the bare and single opinion of some half-fledg'd merchants : for bills of exchange are things of great moment as to commerce , and are neither to be strained so high , as that a man should not cast his eye on them but the same shall be taken to be an acceptance : nor on the other hand having duly accepted them , the same should be rashly and unadvisedly avoided , by the shallow fancy of such nimble pated shufflers ; but they are soberly judged and governed , as the same hath generally been approved of and adjudged of in former ages . xv. a bill being remitted , the party is to go immediately to the person to whom the same is directed , and present the same in order to his acceptance ; if it be tendred , and the party subscribes accepted ; or , accepted by me a. b ; or being in the exchange sayes , i accept the bill , and will pay it according to the contents ; this amounts without all controversie to an acceptance . but if the same be refused , the party must then procure a protest , and remit the same to the deliverer , who is to resort to the drawer for satisfaction for the principal costs and damage . xvi . if there be several drawers who subscribe , all are liable in case of a protest . if a bill is drawn upon a merchant in london payable to j. s. at double usance , j. s. is not bound in strictness of law to procure an acceptance , but onely tender the bill when the money is due : but merchants which generally have generous spirits will not surprize a man , but will first procure an acceptance , ●…or at least leave the bill for the party to consider and give his answer , and then give advice of the same , and if the money be not paid , then protest . xvii . a protest is no more but to subject the drawer to answer in case of non-acceptance or non-payment ; nor does the same discharge the party acceptor , if once accepted ; for the deliverer hath now two remedies , one against the drawer , and the other against the acceptor . to entitle the party to an action at law in england against the acceptor , it matters not whether there be a protest ; but to entitle the party to a recovery against the drawer beyond the seas or elsewhere , there must be a protest before a publique notary . xviii . a bill drawn on two joyntly must have a joynt acceptance , otherwise it must be protested , but to two or either of them , è cont . then if the same be accepted by one , it is pursuant to the tenour of the bill , and ought not to be protested , but in case of non-payment ; and in that case the person acceptor is lyable to an action : but if it be on joynt traders , an acceptance by one will conclude and bind the other . xix . a factor of the hamborough , turkey , or india company drawes a bill on the same , and a member accepts the same , this perhaps may make him lyable , but not another member . so it is if merchants shall imploy a factor at the canaries , and the factor drawes a bill on them all , and one of them accepts the bill , and then refuses payment ; this will not oblige the rest . but if there be . joynt traders for the common stock and benefit of all there , and their factor drawes a bill on them ; the acceptance of the one will oblige the residue of the company . xx. a small matter amounts to an acceptance , so that there be right understanding between both parties ; as , leave your bill with me and i will accept it : or , call for it to morrow , and it shall be accepted ; that does oblige as effectual by the custome of merchants , and according to law , as if the party had actually subscribed or signed it , ( which is usually done . ) but if a man shall say , leave your bill with me , i will look over my accounts and books between the drawer and i , and call to morrow , and accordingly the bill shall be accepted ; this shall not amount to a compleat acceptance : for this mention of his book and accounts , was really intended to see if there were effects in his hands to answer , without which perhaps he would not accept of the same . and so it was rul'd by l. chief justice hale at guild-hall . a bill may be accepted for part , for that the party upon whom the same was drawn had no more effects in his hands ; which being usually done , there must be a protest , if not for the whole sum , yet at least for the residue : however , after payment of such part there must be a protest for the remainder . xxii . any time before the money becomes due , the drawer may countermand the payment , although the bill hath been accepted . the countermand is usually made before a notary ; but if it comes without , so it comes under the parties hand , it is well enough . if the bill be accepted , and the party desires to have the money before it be due , and it is paid , and then there comes a countermand ; it hath been conceived , that he ought not to be allowed , for as he could not enlarge the time , so he could not shorten it , but his duty is to follow his order . xxiii . note , the drawer is bound to the deliverer , and the acceptor to the party to whom the bill is made payable ; yet both are not bound to one man , unless the deliverer be a servant to the party to whom the money is made payable ; or the party to whom the money is made payable be servant to the deliverer : yet both taker and accepter are lyable till the bill is paid . xxiv . therefore when you bring your action , be sure to draw your declaration accordingly , and make the same part of the custome as you set it forth ; for if you vary , you must expect to be nonsuited : and the party is not bound to alledge a particular place of demand . if a bill be returned protested for want of payment , the drawer is to repay the money and damage , or else he may procure a security , which is no more but another person of value subscribes the bill , in these or the like words , i here underwritten do bind my self as principal , according to the custome of merchants , for the summe mentioned in the bill of exchange whereupon this protest is made , dated , &c. now the drawer by vertue of this supplymental agreement hath as much time again to pay the moneys as there was given him in the bill when it was first drawn ; so that if the money is not then paid , together with the rechange and charges of the party , the party may recover the same on the principal or security . xxv . beyond the seas the protest * under the notary's hand is sufficient to shew in court without producing the very bill it self . but if a bill in england be accepted , and a special action grounded on the custome be brought against the acceptor , at the tryal the party plaintiff must produce the bill accepted , and not the protest ; otherwise he will fail in his action at that time . therefore it is safe that a bill once accepted be kept , and onely a protest for non-payment be remitted ; but a bill protested for not acceptance must be remitted . xxvi . if a bill is lest with a merchant to accept , and he loses the bill ( or at least it is so mis-lade that it cannot be found ; ) if the party shall request the merchant to give him a note for the payment according to the time limited in the bill of exchange . otherwise there must be two protests , one for not acceptance , the other for non-payment ; but if a note is given for payment , if there happens to be a failer , yet in that case there must be protest for non-payment . xxvii . a bill is remitted to j. s. who owes moneys to j. d : j. s. delivers the bill to j. d , and on the back-side subscribes his name ; if j. d. receives the moneys , he may fill up the blanck as if the moneys had been actually paid to j. s : this is practised amongst merchants , and by them reputed firm and good . but certainly the common law looks upon this filling up of blanks after a man hath once signed or sealed , to be no better then a harmless forgery . note . no person be it wife or servant , can accept of a bill of exchange to bind the master without a lawful authority , as a letter of attorney , and the like , which must be under-hand , unless that it has been formerly and usually done by the wife or servant in such case , when the master hath been out of town ; who hath approved of the same and answer'd payment : it must be usually done ; but one partner may for another . a servant of sir robert clayton and mr. alderman morris , ( but at that time actually gone from them ) took up guineys of mr. monck a goldsmith , without any authority of his masters ; ( but monck did not know that he was gone ) the moneys not being paid , monck brought an action against sir robert clayton and morris , and at guild-hall it was rul'd per keeling chief justice , that they should answer ; and there was a verdict for the plaintiff : and though there was great endeavours to obtain a new tryal , yet it was denyed , the court at west minster being fully satisfied that they ought to answer : for this servant had used often to receive and pay moneys for them ; and thereupon they actually paid the moneys . note . that which will oblige the master , will be the authority and liberty which he usually gives the servant ; therefore such a power devolved , ought to be secured by the prudent'st way that may be ; which is generally done by bonds and obligations . if a bill of exchange by contrary wind or other occasions be so long on the way that the usance or time limited by the bill be expired , and being tendred , both acceptance and refusal are denyed ; protests for both must be made , and the drawer must answer the value , rechange and damage . xxviii . a bill once accepted cannot be revoked by the party that accepted it , though immediately after and before the bill becomes due , he hath advice the drawer is broke . if a bill is not accepted to be paid at the exact time , it must be protested ; but if accepted for a longer time , the party to whom the bill is made payable must protest the same for want of acceptance according to the tenour : yet he may take the acceptance offered notwithstanding . nor can the party if he once subscribes the bill for a longer time , revoke the same , or blot out his name , although it is not according to the tenour of the bill ; for by his acceptance he hath made himself debtor , and owns the draught made by his friend upon him , whose right another man cannot give away , and therefore cannot refuse or discharge the acceptance . note . this case will admit of two protests , perhaps three : . one protest must be made for not accepting according to the time . . for that the money , being demanded according to the time mentioned in the bill , was not paid . . if the money is not paid according to that time that the acceptor subscribed or accepted . a. drawes a bill on b , and b. is in the country ; c. a friend of his hearing of the bill accepts it : the party to whom the money is to be paid must make a protest for non-acceptance by b , and then he may take the acceptance of c , and it shall bind c. to answer the money . if a bill is drawn on b , and b. happens to be in the country , and a friend of his desires the party not to protest , and he will pay the same , it is good , and shall bind such party . if there be two joynt-merchants or partners , and one of them accepts a bill of exchange , the same shall bind the other ; and an action of the case on the custome may be maintained against him . xxx . merchants generally allow . dayes after a bill becomes due for the payment ; and for non-payment within the . dayes protest is made , but is not sent away till the next post after the time of payment is expired . if saturday is the third day , no protest is made till munday . xxxi . the use of the protest is this , that it signifies to the drawer that the party upon whom he drew his bill was unwilling , not to be found or insolvent , and to let him have a timely notice of the same , and to enable the party to recover against the drawer , for if one drawes a bill from france upon a person in england , who accepts and fails , or becomes insolvent at the time of payment , if there be not a protest and * timely notice sent to the drawer there , it will be difficult to recover the money . in holland they are not altogether so strict , yet there must be a reasonable time of notice ; the reason is , for perhaps if he had reasonable and timely notice , the drawer then might have had effects or other means of his upon whom he drew , to reimburse himself the bill ; which since for want of timely notice he hath remitted or lost . and the general rule is , that though the drawer is bound to the deliverer till the bill is satisfied , yet it is with this proviso , that protest be made in due time , and a lawful and an ingenious diligence used for the obtaining payment of the moneys ; for it were unreasonable the drawer should suffer thorough his neglect . xxxii . where a merchant hath accepted , and before the same became due , he becomes insolvent , or at least his credit publiquely blasted , a protest ought to go ; but then there is usually a demand made , which once comeing , the drawer is compellable to give better security ; and if a second bill comes if no protest , then drawer and security lye at stake . xxxiii . if a merchant drawes a bill , and there is a protest for non-payment ; if another person hearing of the same declare , that he for the honour of the drawer will pay the contents , and thereupon subscribes ; he is obliged thereby : and in this case it has been practised , that the party that received the money hath put his name on the back-side of the bill in blanck ; but the receipt is sometimes taken on the protest , which together with the whole proceeding is turned into an act , and the same being drawn by the notary , is remitted to the drawer by him who gave honour to the bill . xxxiv . if a bill be accepted , and the party dyes , yet there must be a demand made of his executors or administration ; and in default or delay of payment , a protest must be made : and although it may fall out that the moneys may become due before there can be administrators , or the probate of the will be granted ; yet that is delay sufficient for a protest in case of non-payment . but on the other hand , if the party be dead to whom the moneys are made payable , and the moneys are ready to be paid , and there is no person that can legally give a discharge ; yet a protest ought not to go for not payment : the reason is , because there is no person that hath any authority either in deed or in law to make it , and a notary ought not to make it ; if he does , and the party hath received any prejudice thereby , an action of the case perhaps may lye against him for his pains : nor does it avail , that if security be offered to save him harmless against the executors or administrators , for that is an act left to his own discretion ; for perhaps the security may not be lik'd : but whether good or bad , makes nothing as to oblige him in law. but if a man is bound in a bond to pay a sum of money to j. s. his executors , administrators , &c. and the obligee dyes intestate the day before the sum becomes due , yet the bond is not forfeited if not paid at the day , because there was no body to whom the obligor could pay to save his obligation : but as littleton sayes , if it be to pay to j. s. generally , you must hunt him out all over the kingdom , if you 'l save the penalty . xxxv . a man not found , or being found not met withal either at home or the exchange , is cause sufficient for a protest ; but in that there must be diligence used in the finding him . a bill returned protested for non-payment being once satisfied by the drawer to the deliverer , the drawer is discharged and so is the accepter to him to whom the moneys were to be paid : but , the accepter by vertue of his acceptance makes himself a debtor secundum consuetudinem mercatoriam to the drawer . xxxvi . moneys may be had on exchange by way of letters of credit , the which are in two respects , the first general , the other especial . the general letter is open directed , to all merchants and others that shall furnish my servant or factor , or any other with such and such moneys ; for repayment of which he binds himself to answer and pay all such bills of exchange as shall be drawn on him upon the receipt of the value , by his servant , factor or other person : if there be really moneys advanced on this letter of credit and paid to the factor , servant or other , and bills of exchange are sent to the party that sent such letter of credit , and if he refuses to accept , yet according to the customes of merchants he is bound to pay ; the reason is , for there was no respect had to the ability of the taker up , but to him that gave his letters of credit : and therefore in such case if an action at law be brought , the particular custome as to that point must be carefully set forth . the special letters of credit , where one writes a letter to furnish another mans factor or agent ; and there is in this the same remedy as above . as bills of exchange seldome come without letters of advice , so ought they to be pursued : if a bill shall express , and put it to the account of a ; and the letter of advice sayes b ; this must be protested against , for it cannot safely be paid ; at least running the risque of an equitable suit. xxxvii . if one payes money on a bill before it be due and the party breaks , it has been conceived that the party ought to answer the drawer : the reason hath been , because the drawer might have countermanded the same , or ordered the bill to be made payable to another . in italy if money is paid to a banker's servant , and if the master subscribe , pagate com si dice , this binds the master as effectually as if he had subscribed it with his own hands . xxxviii . a bill drawn by a merchant in london payable by another person beyond seas , such bills in most countreys are assignable over from merchant to merchant , and the last person may sue and recover the same upon an acceptance : but in england onely the first person mentioned in the bill , and to whom the money is made payable may recover . 't is true , such person to whom the money is made payable , may for valuable consideration deliver this bill to another person , and he may endorse an order on the back-side ; but if the party afterwards refuses payment of the same , it may be sued in the parties name to whom the same was transferred , laying the same by way of custome . chap. xi . of moneys advanced by way of bottomerie , or faenus nauticum . i. how commerce is made equivalent to natural community . ii. whether money be fit onely to maintain the trade and credit of vice. iii. whether abraham chose to acquire a property by money . iv. of the natural and instrumental measure of the value of things . v. how money is equal to all things . vi. money is for buying , and hinders not but helps permutation . vii . money the instrument of charity and sacrifices as well as our necessities . viii . of the difference between moneys advanced to be used in commerce at land , and that which is advanced at sea. ix . of moneys advanced by way of bottomerie when the contract hath its inception . x. of moneys sent on shipboard , and the vessel is wreckt , where the lender shall bear share of the loss , and where not . xi . of moneys taken up by the master , where the same shall oblige the owners , and where not . xii . the derivation and institution of this sort of loan , and for what causes . xiii . of the several wayes of taking up of moneys by way of bottomerie , real and feigned . xiv . moneys so advanced , whether gain ought to be bounded , or otherwise left to the will of the lender . xv. of usura maritima , how reasonable the same stands at this day . xvi . of moneys advanced to a considerable profit called usufruit , being both honest and honourable . i. money is one of those things which they who want , want all other things but words to reproach their bad fortune . but sometimes it is the policy even of rags and poverty it self to undervalue that which it cannot have , and to convert that which it hath ( though never so mean ) into an esteem ; and then to lodge as much pride in a tub , as alexander could in a palace , though it could not tempt him to a change of condition . nil habet infaelix paupertas durius in se , quam quod ridiculos homines facit — no wonder therefore , seeing rich men will be obstinate to hold to their advantages , that deformed poverty ( which mixes with them in the same frame as a shadow to set off their colours the better ) would have the rich to descend to them ; and that instead of setting out moneys by way of bottomery , usury and the like , they would not have any such thing as money at all , but would have all things reduced into a state as is afore mentioned . * it cannot be denyed , but that we all live by the natural or intrinsique value of things ; but the way to come by them is by an instrument of civil value , which is money ; instead of community therefore we now have commerce : which commercium is nothing else but communio mercium ; but communion must needs be by the means of another thing that may bear equal proportion on both sides , which is money onely . but now let us hear and if possible satisfie the complaints that are made against it so impatiently . where there is great luxury , there must be likewise great industry to maintain it , and therefore the industry of this civil state , must be greater than that which is in the simple state of nature : but what is there here too blame , seeing industry no more than plenty is in it self a sin ? ii. it is the answer of envy or ignorance , prima peregrinos obscaena pecunia mores — in●…ulit — money is that ( say they ) which maintains the trade and credit of vice , if that were taken away , we should look after nothing but necessaries , which are virtuous ; it makes too nice inequalities and distances , and is not significant enough in the best things : for all the money in the world is not really worth one penny loaf , which is convertible into our natures and substances ; it serves onely to assure fortune , but not virtue , it is accepted as the measure of all things natural , moral , and divine : for honour is nothing but ancient riches * , and in morals , virtus post nummos ; this in religion breeds that root of all evil , covetousness : for in a simple state of nature necessary things must needs be spent within a short time , and the return of the sun brings a new supply and a treasure greater than the indies ; of which one † makes this observation , that it was got in blood , sayles home in a sea of blood , and never rests till it be laid out in blood . this was that which was made the price of salvation , even of the blood of our blessed saviour , pieces for that which was worth thirty thousand worlds ; but in the religion of the first times , nullo violatus jupiter auro , as juvenal hath it . and if this had not been brought into the world , we should not have so much to discount for at the day of judgment . why therfore should that which is condemned to the obscurity of the earth , and lodg'd so near hell , now be made the price of all that which is above the earth , even a solo usque coelum ? or why should we be excluded from the gifts of nature , unless we have those of fortune ? is it not then more reasonable that rich men lose this instrument of luxury ; than the poor should lose the necessary means of their subsistence ? this is the plea which is made in forma pauperis , et de ipsa paupertate . most certain it is , that neither the stupid simplicity of the woods , nor poverty it self are any part of virtue , and therefore are not reckoned blessings , as riches were to solomon , ( he who built gods first temple , and put his religion in lustre ) and as they likewise were to numa , from whom money was called nummus : he likewise built the first temple at rome , and kindled first the vestal fire , & ferocem populum deorum metu mitigavit . iii. we know how god conversed with abraham who was the first that had money , and made use of it to buy a property : it is true , they with whom he inhabited called him a prince , but that was no argument to him to disown their properties , but for the contrary , lest they should think that dominion or a right to things was founded in grace . iv. but to come more close to the question , and to examine the reason and necessity of this measure ; money is like a law or government , which are all constituted by the same extream necessity ; therefore the counterfeiting or attempting to destroy any of these by private means is every where treason . now this measure is two-fold , either natural or civil , or rather natural , and the instrument which expresses the natural by equal permutation : the natural measure is proportioned either by want , or plenty ; in want we consider whether the thing be useful or necessary ; things which are necessary are best , but of least price ; as a loaf of bread is more necessary , but infinitely cheaper than a diamond . one man hath cloathes , another man hath leather ; those two possibly have no need one of another , and therefore there will be no permutation betwixt them ; but if one had need of another , then he who were most prest , would come to the price of the other : and therefore want or plenty is the measure of estimating things , and is the bond of society , whereby one man shews he is or may be useful to another ; and nature hath so ordered it , that no man is so rich who hath not some need of the poor ; and no man is so mean and abject , but he may be some wayes useful to the rich. v. the civil measure or rather instrument whereby the natural expresses it self , is money , which hath but a feigned value , and therefore it is sometimes higher and lower in esteem as men please ; which could not be , if its value were natural which is unalterable . if i have cloath at such a price , and you have wines at the same price , then we regarding the same price may make an equal permutation : or if i give to you so many pieces of gold for your cloath at the same price , the sale is equal again , whether it be an incovenience that in some countries † is sometimes at a higheer value than at another , is not a consideration of this discourse ; for the price of things themselves change more than any money doth daily . vi. money is an invention onely for the more expedite permutation of things ; but it doth not follow that men may ' not make any permutations but by money , even as well now as if we were in our natural state ; if they who digg now in waste hills had their harvest of their beans well gathered in , but had need of wine for the stomachs sake , or of druggs for healths sake , if the vintner , or apothecary have no need of beans ; what use will they make of the natuaal value of their beans without money ? or if need be , what would they do till their beans are gathered ? money therefore hinders not permutation and commerce of natural things , but assists them ; nay , it is therefore an instrument of instruments : for he who hath money may buy things which he need not use but sell , thereby to get other things afterwards for his use . there is no nation or people so barbarous , but have money or a publique instrument of permutation either in metals or fish-bones , &c. for it imports not so much of what matter it is , provided it be durable , not counterfeitable , and difficult to come by . vii . take away this fungible instrument from the service of our necessities , and how shall we exercise our charity , which is a branch of religion and justice , as well as of humanity ? he who goes to church passeth as it were thorough two temples , the poor at the porch , and the temple it self : and the giving at the porch is called sacrifice , offering and gift , as well as that at the altar . god would be sacrificed to onely in one town of the world , jerusalem : but could that have been , if money and money-changers had not been allowed ? how could they who came from such remote places have by any other means brought their oxen , calves , goats and doves to the altar ? if there were nothing further to shew , but that one piece , which our saviour himself coyned miraculously in the mouth of a fish , it were argument sufficient that the use of money may be both good , just , and necessary . viii . things being thus stated , and that money is both good , just and necessary , it will be demanded loudly , that admitting a reasonable advantage may be made by way of usury , quo jure it is that an advantage upon the same more than what the law allowes , is taken ? the distinction is great between moneys lent to be used in commerce at land , and that which is advanced to sea. in the first , the lawes of the realm have set marks to govern the same , whereby the avaritious mind is limited to a reasonable profit ; the reason of that is , because the lender runs none , but the borrower all the hazard whatever that money brings forth . but money lent to sea , or that which is called pecunia † trajectitia , there the same is advanced on the hazard of the lender , to carry ( as is supposed ) over sea , so that if the ship perishes , or a spoliation of all happens , the lender shares in the loss without any hopes of ever receiving his moneys ; and therefore is called sometimes usura maritima , as well as faenus nauticum ; the advantage accrewing to the owners from their money , arising not from the loan , but from the hazard , which the lender runs ; the which is commonly reduced to a time certain , or one or more voyages , according to their several and respective agreements . ix . if the bonds be sealed and the money is advanced , if the ship happens to miscarry by storm , fire , enemy , or any otherwise before the voyage begun , then the borrower runs the risque , unless it be otherwise provided generally , as that if such a ship shall not arrive at such a place at such a time , &c. there the contract hath its inception from the sealing ; but if the condition be , that if such a ship shall sayl from london to amsterdam , and shall not arrive there , &c. then , &c. there the contingency begins not till the departure . yet it has been conceived , that if the master takes up money accordingly and buyes in a lawful lading , but will happen to endeavour to defraud the prince or state of their customes , and puts such goods aboard by means whereof he has incurred a forfeiture of his ship ; in such case the lender is not obliged to such hazard . x. if money be lent on shipboard by a merchant super cargoe or a passenger , and before the day of payment the ship happens to be wreckt or cast away ; if there be such a saver as will admit a contribution , then the party is not to have his whole money , but is to come into the averldge : but if the time of payment were past before the misfortune happened , then the lender must be repaid his whole money free from contribution . and therefore by the laws maritime , if the borrower detains any such lent moneys beyond the term appointed for the repaying , he shall at his return not only pay the profit agreed on before the voyage , but also augment the same according to the time that hath accrued since the day of payment . xi . a master of a ship hath no power to take up money by bottomreie , in places where his owner or owners dwell , unless it were for so much only as his part cometh unto in the said ship : otherwise he * and his estate must stand liable to answer the same . but when a master is out of the countrey , and where he hath no owners , nor any goods of theirs nor of his own , and cannot find means to take up by exchange or otherwise , and that for want of money the voyage might be retarded or overthrown , moneys may be taken up upon bottomerie , and all the owners are liable thereunto ; otherwise he shall bear the loss , that is , the owners are liable by their vessel , though the money is not so employed in truth ; and the owners have their remedy against him who they put in trust : but the persons of the owners are no wayes made lyable by the act of the master for moneys taken up . if owners agree not in setting out the ship , most voices shall carry it , and then money may be taken up for their part by bottomerie , or faenus nauticum , or by hypothicating such a proportion of the ship. many masters of ships having ensured or taken up moneys upon bottomerie to greater sums of money than the value of their adventure , do wilfully cast away , burn or otherwise destroy the ships under their charge , the same was made felony , and the person or person so wilfully doing or procuring the same to be done , were to suffer death . xii . the signification of this faenus nauticum , is by the dutch called bomerie , bodmerie , bodemerie , boddemerij ; so variously pronounced from the keel * or bottom of the ship upon the parallel , whereof the rudder of a ship doth govern and direct the same , parte pro toto sumpta , ita primum appellata , cum etiam lingua gallorum antiqua & britanica bodo vel bodun fundum aut profundum signet † in quem navis fundum , vel ipsam navem ejusque usum mutuo accepta est pecunia , sed postea latius pro faenore nautico etiam usurpari caepit . and the money so taken up by the master is done upon great extremity , and that for the compleating of the voyage when they are in distress and want in some forreign parts ; and indeed such taking up is indeed in the nature of mortgaging the ship , for le neife oblige al payment de ceo , &c. and in the instrument there is a clause that expresses that the ship is engaged for the performance of the same . moneys that are advanced are upon two securities , the one is on the bare ship , the other upon the person of the borrower , sometimes upon both : the first is where a man takes up moneys and obliges himself , that if such a ship shall arrive at such a port , then to repay ( perhaps ) double the sum lent ; but if the ship happens to miscarry , then nothing . xiii . so likewise some will take up moneys , the condition reciting , whereas there is such a ship , naming her , bound to amsterdam , whereas such a man is master , ( whereas indeed there is no such ship or master in nature ) that if that ship shall not arrive at such a place within months , the money agreed on to be paid shall be paid ; but if the ship shall arrive , then nothing . the first of these is honourable and just according to the laudable practice among maritime persons ; and though the advantage runs high , as , , nay sometimes per cent. without consideration of time ; for the moneyes are to be paid within so many dayes after the ships safe arrival ; yet in regard the adventure is born by the lender , ( for if the ship perishes , the advancer loses ) the lawes and practice of all maritime countries allow of the same . and therefore by the common law , if an action of debt be brought on such an instrument , the defendant cannot plead the statute of usury . and so it was adjudged where one sharpley had brought an action of debt on a bond for moneys taken up upon bottomery ; the defendant pleads the statute of usury , and shewed , that a certain ship called the made a voyage to fish in new-found land ( which journey might be performed in eight months ) and the plaintiff delivered l. to the defendant to pay l. at the return of the ship to d , and if the said ship by leakage or tempest should not return from newfound-land to d , then the defendent should pay the principal money ; and if the ship never returned , then nothing to be paid . upon * demurrer it was adjudged the same was not usury : for if the ship had stayed at newfound-land . or . years , yet at her return but l. was to be paid , and if she never returned , then nothing . the other advance which is upon a fictitious supposition of a ship and master , where indeed there is no such in nature , is more unconscionable , the same being the common practice that 's used amongst the italians , and now on this side the water : the same is as to internal right unjust , and cannot now be determined , since it was not long since adjudged * that such contract was good , according to the common law of this realm , and that on a special verdict . xiv . most certain it is , that the greater the danger is , if there be a real adventure , the greater may the profit be of the moneys advanced : * and so hath the same been the opinion of civilians , and likewise some divines ; though some seem to be of opinion , that any profit or advantage ought to be made of moneys so lent , no more than of those that are advanced on simple loan , and on the peril of the borrower . however , all or most of the trading nations of christendome do at this day allow of the same , as a matter most reasonable , by reason of the contingency or hazard that the lender runs ; and therefore such moneys may be advanced several wayes , and a profit may arise so that there runs a peril on the lender . there is likewise a second way of advancing of moneys called usura maritima , joyning the advanced moneys and the danger of the sea together ; and this is obliging sometimes upon the borrower's ship , goods and person : the produce of which by agreement will advance sometimes , , and sometimes . per cent. as for instance , a private gentleman has l. ready money lying by him , and he has notice of an ingenious merchant that has good credit beyond seas , and understands his business fully , applyes himself to him , and offers him l. to be laid out in such commodities as the merchant shall think convenient for that port or countrey the borrower designs for , and that he will bear the adventure of that money during all that voyage ; ( which he knowes may be accomplished within a year ) hereupon the contract is agreed upon , per cent , is accounted for the interest , and per cent. for the adventure outwards , and per cent. for the goods homeward ; so that upon the return the lender receives per cent. which amounts to l. the lender in this case hath a good bargain , no question . now let us see what advantage the borrower hath . . the borrower prevents the taking up the like sum at interest which comes to . per cent , and brocage which comes now in this age thorough the generosity of the merchant , and covetousness of the serivener , at . or . per cent. more ; and then the same is let out but for . months , and then the scrivener inevitably at the . months end sends his note , that his friend expects his moneys to be yaid in ; so that to stop that gapp there must be continuation , which is at least one per cent. more , besides the obliging of friends in securities . . the assurance prevented , which perhaps may come to between and per cent. according as the times are ; and common prudence will never suffer a merchant to venture . parts of . parts of his estate in one bottome without assuring . . as he shall not have occasion to ensure , so it may be a great occasion of preventing the common obligation of his ensuring of others ; the which in a generous merchant in honour cannot be denyed , the premeo running pretty reasonable . . it prevents the parties running the risque and danger of the seas , enemies , or any other fatal loss , and hath been a means to introduce a mans credit in a short time at lesser charge , if not to put him in in a condition not to be beholding to such a fair , though chargeable means . and this cannot be usury by the lawes of this realm , for the risque and danger that the lender runs . vi. there is also another way , but that is both honest and honourable , called usufruite , that is a stock in a company or society which is perpetual ; such a stock or portion may be purchas'd , that is , the advantage or benefit arising by the improvement of the same . as for instance , the east-india company hath a stock lodged in their hands by divers persons , which they in the most prudent'st manner as they see fit , imploy to those places as they judge most proper ; if a return is made , the advantage of that is distributed ●…o each person that is any way entitled to that stock : which advantage is called a divident , and perhaps may afford some years or per cent. : but on the other hand ; if that that proportion of the stock which goes out happens to miscarry , the abatement is proportionable , and so the stock may be lessened , unless that they will stay the dividents to keep the stock ; the which they may do , for it is a trust reposed of so many mens moneys in their hands , to yield them such advantage as they shall upon a just account set out : so that if a man hath a l. stock , he cannot take the same out of the great stock whereby to lessen the same , but he may transfer that usu-fruite by that customary way which they have to any other person , for a valuable consideration infinitum . such a stock of l. in the east-india company in time of warr might have been purchas'd for l. nett ; but now in time of peace scarce got under ; or l. the dividents running high . chap. xii . of impositions called great customes , petty customes , and subsidies . i. impositions , whether they may be commanded without the three estates , and of magna charta touching the same . ii. of impositions made voluntary by consent of merchants , and of the adnull of the same . iii. of the confirmation of the great charter for free traffique ; and of the settlement now made on his majesty of the same . iv. of the immunities formerly of the hansiatique towns here in england , and when determined . v. of the antiquity of customers or publicans as well in former ages as at this present time , in most nations . vi. of the imposition called magna custuma . vii . of that which is called parva custuma payable by strangers , and the act called commonly carta mercatoria . viii . of subsidy , and of what , and the rates how set . ix . of subsidy by strangers on wines . x. of goods not rated how to pay . xi . of the subsidy-duty for cloaths . i. that impositions neither in the time of warr or other the greatest necessity or occasion that may be , ( much less in the time of peace ) neither upon forraign nor inland commodities of what nature soever , be they never so superfluous or unnecessary , neither upon merchants strangers nor denizens may be laid by the king 's absolute power without assent of parliament , be it never so short a time . by the statute of magna charta , cap. . the words are , all merchants if they were not openly prohibited before shall have their safe and sure conducts , to enter and depart , to go and tarry in the realm , as well by land as by water , to buy and sell without any evil tolls , by the old and rightful customes ( except in the time of warr ) ; and if they be of the land making warr against us , and be found in our realm at the beginning of the warr , they shall be attached without harm of body or goods , untill it be known to us or our justices how our merchants be intreated there in the land making warr against us. the statute of which this is a branch , is the most ancient'st statute law we have , won and sealed with the blood of our ancestors , and so reverenced in former times , that it hath been times solemnly confirmed in parliament . ii. impositions were in some sort done consensu mercatorium , by edward the first , and edward the third : and again in henry the eighth , of which the house of burgundy complained , as against the treaty of entercourse . king henry the third finding that such a modus of imposition tended to the destruction of trade , and apparent overthrow of commerce , and was against the great charter , made proclamation anno . in all ports of england , that all merchants might come faciendo rectas & debitas consuetudines nec sibi timeant de malis tollis , for that such impositions had no better name then maletolts . the like was declared and done by edward the first in the th year of his reign , and edward the second , in the th and th years of his reign . iii. in ed. . the great charter for free traffique was confirmed ; and about some . years after there were commissions granted for the raising of a new kind of tallage , but the people complained ; whereupon the commissions were repealed , and he promised never to assess any but as in the time of his ancestors . but this prerogative power of imposing inward and outward upon commodities over and above the ancient custome of subsidy without a free consent in parliament , is now ceast and settled ; and that question which for many ages had been handled by the most learned'st of their times , in the asserting and in the denying , will never more be remembred : which being managed for some time was afterward farmed out : the like having been done by former kings , as did edward the third with the new and old customes of london for marks monthly to be paid unto the wardrope . richard the second , anno . farmed out the subsidy of cloth in divers counties . so edward the th , henry the th , queen elizabeth , and king james ; the same having been used in former ages even in the best govern'd state , rome , which let out portions and decim's to the publicans . iv. the old hanse towng , viz. lubeck , collen , brunswick , dantzick and the rest , had extraordinary immunities granted unto them by our third henry , for their great assistance and furnishing him in his warrs and naval expeditions with so many ships ; and as they pretended the king was not onely to pay them for the service of their ships , but for the vessels themselves in case they miscarried : the king having concluded a peace , and they being on their return home for germany , the most considerable part of their fleet miscarried by storm and stress of weather ; for which according to covenant they demanded reparation : the good king in lieu of that which he wanted , money , granted them divers immunities ; and amongst others , they were to pay but . per cent. custome , which continued till queen mary's time , and by the advice of king philip she enhanced the . to per cent : the hans not only complained , but clamoured aloud for breach of their ancient priviledges confirmed unto them by long prescription from successive kings of england , and the which they pretended to have purchased with their money : king philip undertook to accommodate the business , but queen mary dying , and he retiring , nothing was effected . complaints being afterwards made to queen elizabeth , she answer'd , that as she would not innovate any thing , so she would protect them still in the immunities and condition she found them . hereupon their navigation and traffique was suspended a while , which proved very advantageous to the english , for they tryed what they could do themselves herein , their adventures and returns proving successful , they took the whole trade into their own hands , and so divided themselves to stapters and merchant-adventurers ; the one residing constant at one place , the other keeping their course and adventuring to other towns and states abroad with cloth and other manufactures : this so nettled the hans , that they devised all the wayes that a discontented people could to draw upon our new staplers or adventurers the ill opinion of othhr nations and states : but that proving but of too small a force to stop the current of so strong a trade as they had got footing into , they resorted to some other ; whereupon they applyed themselves to the emperour , as being a body incorporated to the empire ; and upon complaint obtained ambassadors to the queen to mediate the. business : but they returned still re infecta : hereupon the queen caused a proclamation to be published , that the merchants of the hans should be intreated , and used as all other strangers within her dominions in point of commerce , without any mark of distinction . this enflamed the more , thereupon they bent their forces more eagerly , and in an imperial dyet at ratsbone they procured that the english merchants who had associated themselves in corporations both in embden and other places should be adjudged monopolists ; whereupon there was a comitial edict procured against them that they should be exterminated , and banished out of all parts of the empire ; which was done by suderman a great civilian . there was there at that time for the queen as nimble a man as suderman , and he had the chancellor of embden to second him , yet they could not stop the edict , whereby our new erected society of adventurers were pronounced a monopoly : yet gilpin played his cards so well , that he prevailed the imperial ban should not be published till after the dyet ; and that in the interim his imperial majesty should send an ambassador to england to advertise the queen of such proceedings against her merchants . but this made so little impression on the queen , that the ●…an grew rather rediculous than formidable , for the town of embden harboured our merchants notwithstanding , and afterwards the town of stode ; but the hansatiques pursuing their revenge , and they being not so able to protect them against the imperial ban , removed and setled themselves in hamburgh . this politique princess in recompence of their revenge commanded another proclamation to be published , that the hansatique merchants should be allowed to trade into england upon the same conditions as they formerly did , provided the english merchants might have the same priviledges to reside and trade peaceably in stode or hamburgh ; or any where else within the precincts of the hans . this so incensed and nettled them , that all endeavours were made to cut off stode and hamburgh from being members of the hans , or of the empire : but the design was suspended till they saw the success of , king philip having promised to do them some good offices in the concern . but the queen finding that the hans were not contented with that equality she had offered to make betwixt them and her own subjects , but were using such extraordinary means ; put forth another proclamation , that they should transport neither corn , victuals , arms , timber , masts , cables , metals , or any other materials or men to spain , or portugal . and not long after the queen growing more redoubled and famous by the overthrow of king philip's invincible armada , ( as the pope christned it ) the hans began to despair of doing any good , especially they having about some sayl of their ships taken about the river lisbon by her majesties frigats , that were laden with ropas de contrabanda . she notwithstanding had thoughts of discharging this fleet by endeavouring a reconcilement of the differences : but she having intelligence of an extraordinary assembly at lubeck which had purposely met to consult of means to be revenged of her , she thereupon made absolute prize of those sayl , onely two were freed to carry home the sad tydings of their brethrens misfortune . hereupon the pole sent a ranting embassador in the behalf of the hans , who spake the injuries done to the hans in a high tone . but the queen her self suddainly answered him in a higher , with a satisfaction no greater than what she had done to others of the like quality before . this fortunate clashing for the . per cent. on the customes , has proved ever since advantageous for england , our merchants have ever since beaten a peaceful and an uninterrupted trade into high and low germany ; and by their constant trade in those parts have found a way thorough the white sea to arch-angel and mosco . the return of all which hath since vastly encreased the riches and strength of this nation . v. after the jewes became tributary to rome , ( which was acquir'd by pompey threescore years before the birth of our saviour ) certain officers or commissioners were appointed by the romans in all those places where their victorious standards had claymed a conquest , who used to appoint such officers or commissioners to collect and gather up such custome-money or tribute as was exacted by the senate . those that gathered up these publique payments were termed publicani publicanes , and by reason of their cruel and oppressive exaction , they became hateful in all nations . every province had his several society or company of publicans ; every society his distinct governour : in which respect it is that zaccheus is called by the evangelists , princeps publicanorum , the chief receiver of the tribute , or chief publican : and all the provincial governours in these several societies had one chief master or superintendant residing at rome , unto whom the other subordinate governours gave up their accounts . these publicans were hated of all the roman provinces , but especially of the jewes , because though it was chiefly maintained by the galileans , yet it was generally inclined unto by the jewes , that tribute ought not to be paid by them . this hatred is confirmed by the rabinical proverb , take not a wife out of that family wherein there is a publican , for such are all publicans . yea , a faithful publican was so rare at rome it self , that one sabinus for his honest managing of that office , in an honourable remembrance thereof had certain images with this inscription , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , for the faithful publican . no marvel that in holy writ publicans and sinners go hand in hand . but now the world has been so long used to them , that in all or most nations the particular princes or states chuse out the most sagest and prudent'st men for that imployment : and certainly the customes of this realm never did return to that great and clear account as they have done under the care and prudent management of the present commissioners : and were tertullian alive , he would have recanted that opinion of his , that none would be a publican but a heathen . vi. customes are duties certain and perpetual payable to the king as the inheritance of his crown , for merchandizes transported from and beyond the seas from one realm to another . magna custuma & antiqua is payable out of native commodities , scilicet , wooll , woollfels and hides , and that is certain imposed . and this custome which is called magna custuma , is due to the king of common right for four causes : . for leave to depart the kingdome , and to carry commodities of the realm out of it . . for the interest and dominion which the king hath in the sea , and the arms thereof . . because the king is the guardian of all the ports within the realm , & custos totius regni . . for whaftage and protection of merchants upon the seas against the enemies of the realm and pyrats . vii . the custome which is called parva custuma , is a custome or duty payable by merchants strangers , and begun in the time of king edward the first , when they granted him , that they would pay to him and his heirs d. in the pound for all merchandizes exported and imported by them , &c. and that the charter was and may be of great use , i have here inserted the same , as it was faithfully transcribed out of the roll in the tower. for merchant strangers concerning liberties granted to them . the king , to his archbishops , &c. sendeth greeting . concerning the good condition of all the merchants of the kingdoms , lands , and provinces underwritten : that is to say , germany , france , spain , portugal , navarr , lombardy , tuscany , provence , cathalonia ; our dukedoms of aquitain , tholous , turein , flanders , brabant , and all other lands , and forrein places , by what name soever called , coming into our kingdome of england , and there remaining . we being very solicitous , out of our especial care , that under our dominion , a freedom of tranquility , and full security for the said merchants may be provided for the future , so as they may the more readily applythemselves to the service of us , and of our kingdome , we graciously answering their petitions , and ordaining more amply for securing their condition in form following underwritten , are pleased to grant to the said merchants for us and our heirs for ever . imprimis , that is to say , that all merchants of the said kingdomes , and lands , may come from any other place , safe and secure under our tuition and protection into our said kingdome of england , and every where within our dominion , with their merchandizes of what sort soever , and be unmolested , and quiet concerning a murage , b pontage , and c pavage , and that within our said kingdom , and dominion , they may traffique in the cities , boroughs and market towns , onely in gross , as well with natives , or inhabitants of this our kingdom and dominion aforesaid , as with strangers forrein and domestick ; but so , as their wares vulgarly called mercery or the species thereof , they may sell by retail , as formerly hath been accustomed . and that all the said merchants may carry , or cause to be carried whither they please , their merchandize which they have brought into our said kingdom , and dominion , or otherwise acquired ; except to the lands of the manifest and notorious enemies of our kingdom , paying the customs which shall be due , wines onely excepted , which shall not be exported out of our said kingdom , or dominion , after they have been imported into our said kingdom , or dominion , without pleasure and special licence , by any way or means whatsoever . item , that the said merchants may lodge in the cities , boroughs , & towns aforesaid , at their own pleasure , and there stay with their goods , to the content of them who entertain them . item , that every contract made by the said merchants with what persons soever , and from what places soever , for what kind of merchandizes soever , shall be firm and stable , so that neither of the merchants shall depart from , or go back from his bargain , after a gods-penny is given and received , between the principal persons contracting ; and if it happen that a contention arise on the said contract , there shall be a tryal , or inquisition , according to the usages and customs of the fairs , and towns where such contract shall be made or begun . item , we promise to the aforesaid merchants , and for us , and our heirs for ever grant , that we by no meanes whatsoever will make , nor suffer to be made any prize , or arrest , or detention by occasion of prise , for the future , upon their said wares , merchandizes , or other their goods by us , or by any other , or others in any case , and necessity whatsoever , against the will of the said merchants , without the price presently paid , for which the said merchants might sell to others , wares of the like sort for , or otherwise to satisfie them , so as they shall repute themselves contented . and that no appraisement or value shall be put upon the said merchants wares , merchandizes , or goods , by us or our ministers . item , we will , that all bayliffs , and officers of fairs , cities , boroughs , and market towns , shall do speedy justice to the said merchants complaining to them , from day to day , without delay , according to the merchants law , concerning all and every thing which by the said law may be determined : and if any defect shall happen to be found in any of our bayliffs or ministers aforesaid , whereby the said merchants or any of their factors shall suffer loss , although the merchant recover his losses against the party in the whole , yet nevertheless , the bayliff , or other ministers of ours as the fault requires shall be punished ; and we grant the said punishment in favour of the merchants aforesaid , for compleating their right . item , that in all kinds of pleas , saving in the case of crime , for which the pain of death is liable to be inflicted , where the merchant shall be impleaded , or he implead another , of whatsoever condition ●…e that is impleaded be of , whether a forreiner or a domestick , in the said fairs , cities or boroughs , where there is a sufficient plenty of merchants of the lands aforesaid , and inquisition there ought to be made ; half of the inquisition shall be of the said forrein merchants , and the other half of honest and lawful men , where the plea happens to be : and if a sufficient number of the merchants of the said lands shall not be found , let those be put in the inquisition who shall be found fit in that place , and let the residue be of other good and fit men , in the places in which that plaint shall be . item , we will , ordain , and appoint , that in every market town and fair of our said kingdom , and elsewhere within our dominion , our weight is to be put in a certain place , and before weighing thereof , the scale to be empty in the presence of buyer and seller , and the arms thereof to be equal , and when he hath set the scale equal , he is forthwith to take off his hands , so that it may remain equal ; and that throughout our whole kingdome and dominion , there be one weight and measure , both of them sealed with the sign of our standard , and that every one may have a scale of one quarteroni and under , where contrary to the governour of the said place , or liberty by us , or our ancestors was not granted , or contrary to the custom of the villages and fairs hitherto observed . item , we will and grant , that some certain faithful and discreet person residing in london , may be appointed a justice in behalf of the before mentioned merchants , before whom they may plead specially , and more speedily recover their debts , if the sheriffs , and mayors , distribute not to them , day by day , compleat and speedy justice ; that then a commission be granted to the aforesaid merchants , besides this present charter , viz. concerning those [ goods ] which are to be conveyed between merchants and merchants , according to the merchants law. item , we ordain and appoint , and our will and pleasure is , for us , and our heirs , that this ordinance and statute be firmly kept for ever , notwithstanding any liberty whatsoever which we or our heirs for the future shall grant ; the said merchants ought not to lose their above written liberties , or any of them : and for and in consideration of their obtaining the said liberties , and free usages , and our prises to be remitted to them : all and singular the said merchants for themselves , and all others on their part , have heartily and unanimously granted to us that for every hogshead of wine which they shall bring in , or cause to be brought in within our kingdome , or dominion thereof ; and from whence they are obliged to pay freight to the mariners , to pay to us and to our heirs , by the name of custome two shillings over and above the ancient customs due , and accustomed to be paid in pence within fourty dayes after the said wines are put on shoare out of the ships . item , for every sack of wooll , which the said merchants or others in their names do buy , and out of this kingdom transport , or buy to transport , shall pay fourty pence over and above the ancient custom of half a mark , which formerly was paid . and for a last of hides carried out of this our kingdom and dominion thereof , to be sold , half a mark over and above that which according to ancient custome was formerly paid ; and likewise for three hundred wooll-fels to be carried out of this kingdom , fourty pence , besides that certain sum which according to ancient custome was formerly given . item , two shillings for every scarlet , and cloth dyed in grain . item , eighteen pence for every cloth in which part of a grain-colour is intermixt . item , twelve pence for every other cloth without grain . item , twelve pence for every quintal of wax . and whereas some of the said merchants deal in other commodities , as goods weighed with avoir-du-pois weights , and in other fine goods , as cloth of tarsen , of silk , of * cindatis , of hair , and in divers other merchandizes , in horses also , and other animals , corn , and other wares and merchandizes of different sorts , which cannot easily be put to a certain rate of custom ; the said merchants have consented to give us and our heirs for ever twenty shillings estimation and value of those wares and merchandizes , by whatsoever name they be called , three pence in the pound , upon the entrance of their wares and merchandizes into our kingdom , and dominion aforesaid , within twenty dayes after such wares and merchandizes shall be brought into our kingdom , and dominion aforesaid , and there shall be unladen , or sold. and likewise three pence for every twenty shillings , at the exporting of what kind soever of wares or merchandizes bought in our kingdom , and dominion aforesaid , besides the ancient customs formerly given to us or to others . and over and above the value and estimation of the said wares & merchandizes for which three pence for every twenty shillings as aforesaid are to be paid ; they are to have credit by letters , by them to be produced from their principals or partners , and if they have none , let it be determined in this case , by the oaths of the said merchants , or in their absence , of their servants . moreover , it may be lawful for the society of the merchants aforesaid , to sell wooll to the fellows of the said society , and likewise to buy the same one of another within our kingdom and dominion , without payment of custom : provided that the said wooll come not to such hands whereby we may be defrauded of our customs . and furthermore be it known , that after the said merchants have once in any one place within our kingdom and dominion paid our customs granted , as aforesaid , to us , for their merchandizes in form aforesaid , and thereupon they have their warrant , they shall be free , and unmolested in all other places within our kingdom and dominion , from payment of the said custom for the same commodities or merchandizes by the said warrant , whether such merchandizes remain within our kingdom , and dominion , or are carried out , except wines , which without our leave or licence , as aforesaid , are by no means to be exported out of our kingdom . we will also , and for us , and our heirs grant , that no exaction , prise or or loan , or any other burden shall be imposed in any part or measure on the persons of the said merchants , their merchandizes , or goods contrary to the form before expressed and granted . witness hereto , the reverend fathers robert archbishop of canterbury primate of all england , walter bishop of coventry and lichfield , henry de lacy earl of lincoln , humphrey de bohun earl of hereford and essex , and constable of england , adomarus of valentia , galfrid of geynvil , hugh de le spencer , walter de bello campo chamberlain of our house , robert of bures , and others . given by our hand at westminster the first day of february . pro mercatoribus alienigenis de libertatibus eis concessis . rex , archiepis . &c. salutem . circa bonum statum omnium mercatorum subscriptorum regnorum , cerrarum , & provinciarum , videlicet , alemann . franciae , ispanioe , portugaliae , navarr . lumbardiae , tusciae , provinciae , catholoniae , ducatus nostri aquitann . tholosan tatureini flandr . brebant . & omnium aliarum terrarum , & locorum extraneorum quocunque nomine censeantur , venientium in regnum nostrum angliae & ibidem conversantium . nos precipua cura solicitat , qualiter sub nostro dominio tranquilitatis , & plene securitatis immunitas eisdem mercatoribus futuris temporibus preparetur : ut itaque vota ipsorum reddantur ad nostra , & regni nostri servicia promptiora ; ipsorum petitionibus favorabiliter ●…nuentes , & pro statu eorundem plenius assecurando , in forma que sequitur ordinantes subscripta , dictis mercatoribus pro nobis , & heredibus nostris in perpetuum durimus concedenda . imprimis , uidelicet , quod omnes mercatotes dictorum regnorum & terrarum salvo , & secure sub tuitione & protectione nostra in dictum regnum nostrum angliae , & ubique infra potestatem nostram alibi veniant cum merchandisis suis quibuscunque , de muragio , pontagio , & pavagio , liberi & quieti : quodque infra idem regnum & potestatem nostram , in civitatibꝰ , burgis & uillis , mercatorijs possint mercari , duntaxit in grosso , tam cum indigenis , seu iucolis ejusdem regni , & potestatis nostre predicte , quam cum alieienigenis extraneis vel privatis . ita tamen quod merces que vulgariter merceriae , vocantur ac species , minaciatim vendi possint , prout antea fieri consuevit : et quod omnes predicti mercatores merchandisas suas quas ipsos ad predictum regnum & potestatem nostram adducere , seu infra idem regnum & potestatem nostram emere , vel alias adquirere contigerit ; possint quo voluerint , tam infra regnum & potestatem nostram predictam , quam extra ducere , seu portare facere , praeterquam ad terras manifestorum , & notoriorum hostium regni nostri , solvendo consuetudines quas debebunt , vinis duntaxit exceptis , que de eodem regno , seu potestate nostra , postquam infra idē regnum , seu potestatem nostram ducta fuerint , sine voluntate nostra & licentia speciali , non liceat eis educere quoquo modo . item , quod predicti mercatores , in civitatibus , burgis predictis pro voluntate sua hospitari valeant , & moac u●…llis rari cum bonis suis , ad gratum ipsorum quorum fuerint hospitia sive domus . item , quod quilibet contractus per ipsos mercatores cum quibuscunque personis , undecumque fuerint , super quocumque genere merchandisae , initus , firmus sit & stabilis ; ita quod neuter mercatorum ab illo contractu possit discedere , vel resilere , postquam denarius dei inter principales personas contrahentes , datus fuerit & receptus . et si forsan super contractu hujusmodi contentio oriatur , fiat inde probatio aut inquisitio secundum usus , & consuetudines feriarum , & villarum ubi dictum contractum fieri contigerit , & iniri . item , promittimus prefatis mercatoribus pro nobis , & heredibus nostris , in perpetuum concedentes , quod nullam prisam vel arestationem , seu dilationem occasione prisae de caetero de mercimonijs , merchandisis , seu alijs bonis suis per nos , vel alium , seu alios , pro aliqua necessitate vel casu , contra voluntatem ipsorum mercatorum aliquatenus faciemus , aut fieri patiemur ; nisi statim soluto precio pro quo ipsi mercatores aliis hujusmodi mercimonia vendere possint , vel eis alias satisfactio ita quod reputent se contentos , & quod super mercimonia , merchandisas , seu bona ipsorum per nos , vel ministros nostros , nulla appreciatio , aut aestimatio imponetur . item , uolumus quod omnes ballivi , & ministri feriarum civitatum , burgorum , & uillarum mercatoriarum , mercatoribus ante dictis conquerentibus coram cis , celerem justitiam faciant de die in diem sine dilatione , secundum legem mercatoriam , de universis & singulis que per eandem legem poterunt tetminari . et si forte inveniatur defectus in aliquo balivorum vel ministrorum predictorum unde fidem mercatores , vel eorum aliquis dileus incommoda sustinuerint , vel sustinuerit , licet mercator versus partem in principali recuperaverit dampna sua , nichilominus ballivus , vel minister alius versus nos , prout delictum erigit , puniatur , & punitionem istam concedimus in favorem mercatorum predictorum , pro eorum justitia maturanda . item , quod in omnibus generibus placitorum , salvo casu criminis pro quo i●…igenda sit poena mortis , ubi mercatur implacitatus fuerit vel alium implacitaverit , cujuscumque conditionis idem implacitatus extiterit , extraneus vel privatus , in nundinis , civitatibus , sive burgis ubi fuerit sufficiens copia mercatorum predictarum terratum , & inquisitio fieri debeat , sit medietas inquisitionis de eisdem mercatoribus , & medietas altera de alijs probis & legalibus hominibus loci illius , ubi placitum illud esse contigerit : et si de mercatoribus dictarum cerrarum numerus non inveniatur sufficiens , ponantur in inquisitione illi qui idonei invenientur ibidem , & residui sint de aliis bonis hominibus , & idoneis , de locis in quibus placitum illud erit . item , uolumꝰ , ordinamꝰ , & statuimus , quod in qualibet uilla mercatoria , & feria regui nostri predicti , & alibi infra potestatem nostram , pondus nostram in certo loco ponatur , & ante ponderationem statera in presentia emptoris & uenditoris vacua videatur , & quod brachia sint equalia , & ex tunc ponderator ponderet in aequali , & cum stateram posuerit in aequali , statim amo●…eat manus suas ita quod remaneat in aequali , quodque per totum regnum , & potestatem nostram unum sit pondus & una mensura , & signo standardi nostri signentur , & quod quilibet possit habere stateram unius quarteroni & infra , ubi contra dominum loci , aut libertatem per nos , seu antecessores nostros concessam illud non fuerit , sive contra villarum aut feriarum consuetudinem hactenus observatam . item , uolumus , & concedimus quod aliquis certus homo , & fidel●…s , & discretus london residens , assignetur justiciarius mercatoribus memoratis , coram quo valeant specialiter placitare , & debita sua recuperare celeriter , si uicecomites & majores eis non facerent de die in diem celeris justitiae complementum , & inde fiat comissio extra cartam presentem concessa mercatoribus ante dictis , scilicet de hijs que sunt inter merca tores , & mercatores , secundum legem mercatoriam deducenda . item , ordinamus , & statuimus , & ordinationem illam statutumque pro nobis & heredibus nostris in perpetuum voluimus firmiter observari , quod pro quacunque libertate quam nos vel veredes nostri de caeter●… concedimus , prefati mercatores supra-scriptas libertates , vel earum aliquam non amittant . pro supradictis autem libertatibus & liberis consuetudinibus optinendis , & priūs nostris remittendis eisdem saepedicti mercatores universi & singuli pro se & omnibus alijs de partibus suis , nobis concorditer & unanimiter concesserunt quod de quolibet dolio vini quod adducent , vel adduci facient infra regnum , & potestatem nostram , & unde marinariis frettum solvere tenebuntur , solvent nobis & heredibus nostris nomine custumae , duos solidos ultra antiquas custumas debitas , & in denarijs solvi consuetas , nobis aut alijs infra quadraginta dies postquam extra naves ad certam posita fuerint dicta vina . item , de quolibet sacco lanae quem dicti mercatores , aut alij nomine ipsorum ement , & de regno nostro educent , aut emi , & educi facient , solvent quadraginta denarios de incremento , ultra custumam antiquam dimidiae marcae que prius fuerat persoluta : et pro lasto coriorum extra regnum , & potestatem nostram vehendorum dimidiam marcam , supra id quod ex antiqua custuma antea solvebatur ; et similiter de trescentis pellibus lanutis , extra regnum & potestatem nostram , deducendis , quadraginta denarios ultra certum illud quod de antiqua custuma fuerat prius datum . item , duos solidos de qualibet scarleta , & panno tincto in grano . item , decem & octo denarios de quolibet panuo in quo pars grani fuerit intermixta . item , duodecim denarios de quolibet panno alio sine grano . item , duodecim denarios de quolibet cerae quintallo . cumque de prefatis mercatoribus nonnulli eorum alias exerceant merchandisas , ut de aberio ponderis , & de alijs rebus , subtilibus sicut de pannis carsen . de serico , de cindatis , de seta , & alijs diversis mercibus , & de equis etiam , ac alijs animalibus blado , & alijs rebus , & merchandisis , multimodis , que ad certam custumam facile pon●… non poterunt , i●…dem mercatores concesserunt dare nobis , & heredibus nostris de qualibet libra argenti estimationis seu valoris rerum , & merchandisarum hujusmodi quocunque nomine censeantur , tres denarios de libra in introitu rerum , & merchandisarum ipsarum in regnum , & potestatem nostram predictam infra uiginti dies , postquam hujusmodi res & merchand sae in regnum & potestatem nostram adducte , & etiam ibidem eroneratae , sive venditae fuerint ; et similiter tres denarios de qualibet libra argenti in eductione quarumcunque rerum , & merchandisarum hujusmodi ●…mptarum in regno , & potestate nostra predictis , ultra custumas antiquas nobis , aut alijs ante datas . et super valore , & estimatione rerum & merchandi sarum hujusmodi , de quibus tres denarij de qualibet ●…bra argenti sicut predicitur sunt solvendi ; credatur eis per literas quas de dominis aut socijs suis ostendere poterunt , & si literas non habeant , stetur in hac parte ipsorum meccatorum si presentes fuerint , vel vallettorum suorum in eorundem mercatorum absentia juramentis . liceat insuper socijs de societate mercaturum predictorum infra regnum , & potestatem nostram predictam , lanas vendere alijs socijs suis , & similiter emere ab eisdem absque custuma solvenda ; ita tamen quod dictae la●…ae ad tales manus non deveniant , quod custuma nobis debita defraud●…mur . et praeteria est sciendum , quod postquam saepedicti mercatores semel in uno loco infra regnum & potestatem nostram custumam nobis concessam superius , pro merchandisis suis in forma solverint supradicta & suam habeant inde warrantum , erunt liberi & quieti in omnibus alijs locis infra regnum , & potestatem nostram predictam , de solutione custumae hujusmodi pro eisdem merchandisis , seu mercimonijs per idem warrantum , sive hujusmodi merchandisae infra regnum , & potestatem nostram remaneant , sive exterius deferantur , exceptis vinis , que de regno & potestate nostra predictis , sine voluntate & licentia nostra sicut predictum est , nullatenus educantur . volumus autem ac pro nobis & heredibus nostris concedimus , quod nulla exactio , prisa vel prestatio , aut aliquod aliud onus super personas mercatorum predictorum , merchandisas , seu bona eorundem aliquatenus imponatur , contra formam expressam superius , & concessam . 〈◊〉 testibus venerabilibus patribus roberto cantuariensi archiepiscopo totius angliae primatae , waltero coventr . & litchf . episcopo , henrie de lacy , comite lincoln . humfrido de bohun comite hereford . & essex , ac corstabular . angl. adomar . de valencia , galfrido de geynvill , hugone le de spencer , waltero de bello campo senescallo hospitij nostri , roberto de bures & alijs . dat. per manum nostram apud westm. primo die febr. viii . subsidy is a duty payable for merchandizes exported and imported , granted by act of parliament for the life of the king. and are , . ayds and subsidies payable out of native commodies exported and imported . . tunnage , which is a subsidy out of wines of all sorts ; and poundage , which is a subsidy granted out of all commodities exported and imported , except wines and ancient staple commodities , and is the th part of the merchandize , imposts or duties payable for merchandizes rated and assessed by parliament ; and then they are in the nature of subsidies imposed by the kings prerogative . the rates are generally agreed on by the commons house of parliament , and are exprest in a book commonly called the rates of merchandize ; that is to say , the subsidy of tonnage and poundage , and the subsidy of woollen cloathes or old drapery , and are subscribed with the hand of the speaker . ix . all merchant-strangers bringing in any sort of wines , are to pay thirty shillings in the tun over and above the rates which the natives pay , including twenty shillings the tun formerly paid to his majesty by the name southampton duties , for all wines of the growth of the levant ; for which sort of wines , the stranger is also to pay to the use of the town of southampton for every butt or bipe ten shillings . aliens are like wise to pay the ancient duty of butlerage , which is s. per tun. rule , that all such wines as shall be landed in any of the out ports , and custome paid , and afterwards brought to the port of london by certificate , shall pay so much more custome as they paid short of the duty due in the port of london . for every tun of beer to be exported in shipping english built in money must be paid two shillings : and for every tun of beer exported in any other shipping in money six shillings . x. if there shall happen to be brought or carried out of this realm any goods lyable to the payment of custome and subsidy which are omitted in the book of rates , or are not now used to be brought in or carried out , or by reason of the great diversity of the value of some goods could not be rated ; that in such case every customer or collector for the time being , shall and may levy the said custome and subsidy of poundage according to the value and price of such goods to be affirmed upon the oath of the merchant in the presence of the customer , collector , comptroller and surveyor , or any two of them . xi . every englishman shall pay for every short cloth containing in length not above yards , and in weight not above l. white or coloured by him to be shipped and carried out of this kingdom , three shillings four pence , being after the rate of two farthings and half a farthing the pound weight . and so after that rate for all other sorts of clothes of greater length and weight , allowing not above twenty eight yards , and sixty four pound to a short cloth ; that is to say , for every pound weight over and above sixty four pound , two farthings and a half farthing : and for all other sorts of lesser clothes to be allowed to a short cloth ; that is to say , every stranger shall pay for every short cloth cont ' in length not above yards , and in weight not above l. white or coloured by him to be shipped or carried out of this kingdom , six shillings eight pence , besides the old duty of one shilling and two pence . and so after that rate for all other sorts of clothes of greater length and weight ; and for all sorts of lesser clothes to be allowed to a short cloth : that is to say , dorset and somerset dozens , rudge washt , cardinals , pin-whites , straites , statutes stockbridge , tavestock , seven of each sort shall be allowed to a short cloth. tauntons , bridgwaters , and dunstars , the . not exceeding l. in weight ; devon. dozens containing or yards , in weight l. five to be allowed to a short cloth. ordinary pennystones , or forrest whites cont ' between or yards , and in weight pounds , shorting penystones cont ' or yards , and in weight pounds unfreized , four to be allowed to a short cloth. narrow yorkshire kersies whites and reds cont ' , not above or yards , and in weight pound . hampshire ordinary kersies , newberry whites , and other kersies of like making cont ' yards , and in weight l. sorting hamshire kersies cont ' pound , and in weight pound ; three of them to make a short cloth. northern dozens , single sorting penystons cont ' , between and yards , and in weight pound frized , two of them to make a short cloth. and the northern dozens double ; one to be accounted for a short cloth. all which shall go and be accounted for short clothes , and shall pay after the rate of the short cloth before rated , and for over weight . farthings and one half the pound . the new sort of cloth called the spanish cloth , otherwise narrow list , western broad cloth not exceeding yards in length , and pounds in weight , to be accounted two thirds of the short cloth before rated . and for every pound weight exceeding pounds , two farthings and half a farthing the pound weight . cloth rashes alias cloth serges cont ' yards weighing pound , to be accounted two thirds of the short cloth before rated . and for every pound exceeding pound weight , two farthings and half a farthing the pound weight . and for any other sort of woollen cloth of the old or new drapery , and not mentioned in that book , to pay two farthings and half a farthing the pound weight , and for any other sort of woollen cloth of the old or new drapery and not mentioned , is to pay farthings and half a farthing for the subsidy of every pound thereof . chap. xiii . of impositions subsequent , conditional , temporary , &c. i. of impositions on the manufactures of france by lex talionis . ii. on vineger , perry , cider and rape , customes payable by denizens and strangers , and logwood made importable . iii. on ships that have not two decks , and guns . iv. on salt , beer , cider , perry , vinegar , a further duty . v. of the duty called coynage , and upon what impos'd ; and the temporary imposition called the additional duty . vi. of goods particular imported by aliens ; and rules for petty customes and other matters relating to duties . vii . of aliens customes on fish and other commodities , and rates upon the same . viii . impositions on forraign liquors , and rates on the same . ix . of native commodities , and such as were formerly prohibited may be transported , paying certain duties . x. beer , &c. exported ; skins , leather , &c. transportable , paying such duties — bulloign and coyn onely excepted . xi . of spices importable by any nation . xii . of great and lesser officers fees , and of goods not paying one pound custome in or out , what fees to be taken . xiii . voluntary gifts from some esteemed no bribes ; and rates about payment of fees. xiv . of allowances for jury , what . there are several duties imposed subsequent to the duties payable by the book of rates , and over and above the same ; that is to say , on all ships belonging to the french king's subjects , which shall lade or unlade any goods in this kingdome , or set on shore or take in any passenger , to pay s. per tun ; this was an oliver for a rowland , the french king having done us the like kindness , by imposing the value of solz on every english ship ; this complyment lasts but . weeks longer then the french kings , his remov'd , ours drops . ii. so likewise on vinegar , perry , rape , cider , and cider-eager imported from forraign parts per english , shall answer six pounds ten shillings per tun ; if by strangers , then but six pounds . but if they shall export , then three pounds ten shillings per tun shall be repaid to the english , and four pounds fifteen shillings to be repaid to strangers . the statute of eliz. cap. prohibiting the importation of logwood repealed ; and the same may be imported paying l. per tun : and in case of exportation then to be repaid l. per tun. iii. the parliament taking likewise again into consideration the encouragement of trading in ships of force , have imposed on all goods and merchandize imported and exported , from and to the mediterranean sea , beyond malaga , in any ship that hath not two decks and pieces of ordnance mounted , and two men to each gun , to pay over and above the rates imposed by the book of rates one per cent ' ; this does not extend to ships laden with fish , or half laden with fish and other commodities . v. so likewise on salt out of scotland into england , one half-penny per gallon . again , there is imposed on wines , vinegar , cider , and beer , ten shillings per tun ; and on brandy and strong waters s. per tun. for the coinage duty , the moneys that arises on this duty is to be paid at the custome-house to the collectors and other officers , to be by them kept apart from all other moneys , and paid quarterly into the exchequer without salary or fee : the goods are forfeitable for non-payment of this duty ; and the same is to be repaid if the goods are transported within one year . there is likewise an imposition of l. per tun on spanish wines , and l. per tun on french wines and vinegar ; but that is but temporary , and ends the th of june , . vi. there is also duties payable by aliens for goods imported in aliens ships , commonly called navigation duties . so likewise all goods of the growth , production or manufacture of muscovia or russia , and also of turkey . note , that in all cases where petty custome inwards is payable , it is to be understood of the fourth part of the full subsidy according to the rates and value in the book of rates before the . per cent. is deducted . note . wines of all sorts imported are to pay aliens duties . note . that the nett subsidy of vinegar , perry , rape , cider , and cider-eager both in london and out ports , is the same with the subsidy of french wines , payable in london . vii . so likewise there is a further imposition called aliens custome for all fish , fish oyl , blubber , whale-bone , or whale-fins , not being caught in vessels belonging to englishmen , are to pay double strangers custome . so likewise custome and impost to be paid for several sorts of salted or dryed fish not imported in ships english built , or belonging to england , and not having been stifled and caught in such ships . upon which act , note , that the . per cent. is not to be allowed out of the petty custome . viii . there is likewise an excise or impost upon forraign liquors imported ; that is to say , beer or ale s. per barrel ; cyder or perry the tun ten shillings ; brandy or strong waters perfectly made d. per gallon . if any of those goods be landed before those duties be fully paid and warrants signed , and without presence of an officer , they are forfeited , the informer half . ix . there is likewise duties imposed on several commodities exported by several acts of parliament subsequent to the act of tunnage and poundage . coals transported in english shipping and navigation for his majesties plantations in lieu of all custome , shall pay onely for one chaldron of new-castle measure s. d. for one chaldron london measure s. provided good security be given for landing the said coales accordingly . there are likewise several native commodities and cattle prohibited by divers acts of parliament not to be transported unless sold under such prices ; but non obstante they may now be exported , paying custome according to the book of rates . x. there is likewise an imposition on beer , ale and mum to be exported , to pay s. per tun and no more ; but this is but tempore for . years . so likewise leather of all sorts , sheep-skins , calve-skins , tanned or dressed , non obstante any former law , paying for each hundred weight cont ' l. weight one shilling and no more : this ends in th . of march , . and both of them to the end of the next sessions of parliament after . likewise all sorts of forraign coyn or bullion of gold or silver may be exported without paying any duty or fee for the same , entry being first made in the custome-house ; the like for diamonds , pretious stones , jewels , and pearls of all sorts . xi . all persons whatsoever may import from any place beyond sea in english ships , mace , nutmegs , cynamon , cloves , into england , wales , jersey , guernsey , paying the customes thereof . provided before the lading thereof they give notice to the commissioners or farmers of the customes of the quantity & quality they intend to lade , with the name of the vessel in which they intend to import the same , and procure a licence under the hands of the said farmers or commissioners , or any . of them for the importing the same . note . if goods are wreck't , and the lord seizes them , yet they ought not to pay custome . * xii . fees and allowances due and payable to the officers of his majesties customes and subsidies in the port of london , and the members and creeks thereunto belonging ; that is to say , to the officers of the petty customes outwards , subsidy outward ; petty customes inwards , subsidies inwards , great customes , clerks fees inwards and outwards , the kings waiters being in number eighteen , the register of the kings warrants , the usher of the custome-house , gaugers of french vessels , chief searcher , and his majesties five under-searchers in the port of london ; and the two searchers at graves-end , were all set and entred in a table ; the same was settled by the commons house of parliament , and signed by the right honourable sir edward turner now lord chief baron of his majesties court of exchequer , and then speaker to the commons house of parliament ; at which time the question being put , that for all goods not paying one pound custome in or out , there shall be but half fees taken for all cocquets , warrants , debentures , transires or certificates ; it was resolved in the affirmative . xiii . societies or companies trading in a joynt stock , and making but one single entry , the adventurers being many , the table of fees does not hinder ; but the officers and waiters may receive such gratuity as the company shall voluntarily give . all goods under the value of l. in the book of rates paying subsidy the sum of s. or less , shall pass without payment of fee. english merchants that shall land out of one ship at one time ( although the receipt of the subsidy be distributed into several offices ) shall not pay any more than for a single entry . the goods of partnership to pass as if the propriety were in one single person . fish by english in english shipping or vessels inwards or outwards all along the coast to pay no fee. post entries inward to pass without fee under five shillings ; if above five shillings and under forty shillings , then six pence : but if the custome to be paid exceed s , then full fees. the merchant shall pay for all goods opening that shall be short entred above s. custome . the merchant shall pay for weighing of all goods shall be short entred above s. custome . the merchant is not to be at any charge if duly entred . xiv . there is likewise to be allowed to the merchants a certain abatement called tare , for goods and merchandize , the which is reduced into a table , and cannot be deviated from in any case within the port of london , without special direction of the commissioners or farmers ; or in their absence of the consent of the general surveyors , and surveyor of the ware-house , or of two of them at the least , whereof the surveyor of the ware-house to be one ; and in the out-ports not without the consent and advice of the collector and surveyor : or where there is no surveyor , by the collector himself , giving speedy notice to the commissioners or farmers of the reason of so doing . chap. xiv . of scavage , package , portecage , ports , members , craks , the port of london , and places lawful to lade and unlade in . i. scavage what , where payable , and to whom . ii. who pay the same , and how regu●…ated and governed . iii. goods omitted in the scavage table of rates , how to pay . iv. of package , how govern'd , and where payable . v. where strangers shall pay as of old . vi. of packers , water-side porters , what duties strangers are to pay for shipping out their goods . vii . of ports , members and creeks , what are meant and understood by them as in reference to action , lawful or unlawful . viii . the several ports , members and creeks in england and wales . ix . of the extent of the port of london . x. of the several keyes , wharfs and other placès lawfull for landing of goods . xii . what goods are excepted which may be shipped or landed at other places . i. scavage is an ancient toll or custome exacted by majors , sheriffs , &c. of merchant strangers for wares shewed or offered to sale within their precincts , which is prohibited by the statute of h. . cap. . in a charter of king henry the second to canterbury , it is written scewinga . the city of london still retain the custome , of which in an old printed book of the customes of london it is there mentioned , and how to be disposed ; of which custome , halfen del apperteyneth to the sherriffs , and the other halfen del to the nostys , in whose houses the merchants boen lodged : and it is to wet that scavage is the shew , by cause that merchants shewen unto the sherriffs merchandizes of the which customes ought to be taken ore that any there be sold , &c. the scavage that is taken consists of two parts , that which is payable by denizens , and that which is required of aliens : and that all persons subject to such duties might not be imposed upon , there are tables mentioning the particular duties set up and approved by the lords chancellor , treasurer , president , privy seal , steward , and two justices of the kings-bench and common-pleas ; and by them subscribed , or any four of them at least : the which duties are on goods inwards and outwards . iii. note . all goods mentioned in the table of scavage , and not mentioned in the table of rates , shall pay after the rate of one penny in the pound , according as they are expressed or valued in his majestie 's book of rates , and all others not expressed therein , shall pay the same rates according to the true value . note . that all private baulks . inches square and upwards , are by the . article annexed to the book of rates reputed timber , and valued at d. the foot , foot making one load , the value of which is s. d ; and the subsidy for one load ⅝ of one penny , or one half penny and half one farthing , out of which the per cent. is to be deducted . iv. there is likewise another duty called package , the which is likewise set and rated in a table , and the which is taken of all the several commodities therein mentioned . all goods not mentioned in that table are to pay for package duties , after the rate of one penny in the pound , according as they are expressed or valued in his majesties book of rates , and all others not expressed therein shall pay the same rate according to their true value . for every entry in the packer's book for writing bills to each entry outward as usually they have done , d. the strangers are to pay the labouring porters for making up their goods , at their own charge , as alwayes they have done . strangers are likewise to pay the water-side porters belonging to the package office , such fees and duties for landing and shipping their goods , as they usually have done within these years . the packers water-side porters have tables of duties for landing of strangers goods , and for the shiping out their goods ; and goods not mentioned in the table are to pay portage duties as other goods do of like bulk or condition therein expressed . vii . port or locus publicus , are those places to which the officers of the customes are appropriated , and which contain and include all the priviledges and guidance of all members and creeks thereunto allotted . by members , are those places where anciently a custome-house hath been kept , and officers or their deputies attending , and are lawful places of exportation or importation . creeks are places where commonly officers are or have been placed by way of prevention , not out of duty or right of attendance , and are not lawful places of exportation or importation without particular licence or sufferance from the port or member under which it is placed . viii . the several ports and members as now they account at the custome-house , are , ports . members . creeks . london   gravesend . ipswich malden leigh . burnham . west mersey . colchester . east mersey . brickley . wivenhoe .   maintree . harwieh . yarmouth . woodbridge .   alborough . orford . dunwick . sowold . walderswick .   lestoffe . blackney and cley .   lynn . wells . burnham .   hitcham . cross keyes . wisbeech . boston .   spalding . fosdick . wainfleet . numby chappel . thetlethorp . salt-fleet . ports . members . creeks . hull . grimsby . gainthorpe . bridlington .   scarborough .   new-castle . whitby .   stockton . middlesborough . hartlepoole .   sunderland .   sheilds .     seaton delaval . blith nooke . berwick .   aylemouth . warnewater . holy island . east marches , containing the coast of northumberland , bordering on scotland . carlisle .   west marches , containing the coast of cumberland , bordering on scotland . whitehaven . workington . ravinglas . milnthorpe . ports . members . creeks . chester . lancaster . pyte of fowdrey . graunge . boulton . wyrewater . preston and rible water . liverpoole . sankey bridge . fradsham . south shoare of the river of mersey to the red stones .   hilbree . dawpoole . neston . burtonhead . baghill . mostin . aberconway .   bewmaris . holy-head . amlogh . carnarvan . pulhelly . barmouth . ports . members . creeks . milford . aberdovy . aberustah . cardigan . newport . fiscard . pembroke . haverford west . tenby . carmarthen . lanelthy . north burrys . cardiffe . swansey south burrys . neath or britton ferry . newton .   aberthaw . penarth . newport . chepstow . glocester   river severn from bridge-north to king-road . bristol .   pill . uphill . bridgewater . minhead .   ports . members . creeks . plymouth . padstow .   st. ives .   pensance .   helford .   falmonth . penrin . st. mawres . truro . fowey .   lowe .     saltash . stonehouse . cowsland . exeter . ilfracomb .   barnstable clovelly . appledore . biddiford .   tincomb . starrcross . beare and seaton . topsham . pouldram sydmouth lympson exmouth aylmouth . dartmouth . saltcomb brixham torbay totnes . ports . members . creeks . poole . lyme . bridport . charmouth . weymouth . portland . lulworth . southampton   swanidge . wareham .   christchurch . hinington . cowes . yarmouth newport . portsmouth . emsworth . chichester . arundell . pagham point . selsey . shorham brighthempston . lewis . new haven . seaford . bemsey .   hastings .   rye winchelsea . lyd. rumney . hyth .   ports . members . creeks . sandwich dover     deale . rumsgate . marget . whitstable . feversham   milton .   rochester . quinborough . note . all the ports and havens in england are infra corpus comit ' , and that the court of admiralty cannot hold jurisdiction of any thing done in them . hollands case , earl of exeter , h. . and because he held plea in the admiralty of a thing done infra portum de hull , damages were recovered against him pounds . vide mich. jac. c. b. greenway vers ' barber , godbolt , . ix . in regard that the port of london is of great concern as in relation to the customes , the extent and limits of the same port is by the exchequer settled , which is declared to extend and be accounted , from the promontory or point called north-foreland in the isle of thanet , and from thence northward in a supposed line , to the opposite promontory or point called the nase , beyond the gunfleet upon the coast of essex , and so continued westward thorough the river of thames , and the several channels , streams and rivers falling into it , to london-bridge , save the usual and known right , liberty and priviledge to the ports of sandwich and ipswich , and either of them , and the known members thereof , and of the customers , comptrollers , searchers and other deputies of and within the said ports of sandwich and ipswich , and the several creeks , harbours and havens to them or either of them respectively belonging within the counties of kent or essex . x. and in regard that when ships did come up to the port of london , there used to be very great frauds committed by a promiscuous kind of shipping and landing of goods and merchandizes at several blind or unknown wharfes and keyes , by reason of which his majesty was often defeated of his customes , it was provided that a commission might issue forth out of the exchequer to ascertain all such wharfes , keyes or other places as his majesty by virtue of such commission should appoint , in pursuance of which his majesty hath been pleased to allow to be lawful keyes , whar●…s and other places for the lading or landing of goods , brewers key . chesters key . wooll dock . * custome-house key . porters key . bear key . † sabbs dock . wiggons key . youngs key . ralphs key . * dice key . smart key , † somers key , lyon key , butolph wharfe , h●…mons key , * gaunts key . cocks key . fresh wharfe . billingsgate . to be a common open place for the landing or bringing in of fish , salt , victuals , or fuel of all sorts , and all native materials for building , and for fruit ( all manner of grocery excepted ) , and for carrying out of the same , and for no other wares or merchandize . bridge-house in southwark , may be allowed a place convenient for landing of any kind of corn bought or provided for provision ▪ or victualling of the city of london , and not upon any private or particular persons account , and for no other goods or merchandize . xi . it may be lawful for any person to ship or lade into any ship or vessel on the river of thames bound over seas , horses , coals , beer , ordinary stones for building . fish taken by any of his majesties subjects , corn or grain , the duties being paid , and cocquets and othar lawful warrant duly passed for the same . so likewise deal boards , balks and all sorts of masts and great timber may be unshipt and laid on land at any place between lyme-house and westminster , the owner first paying or compounding for the customes , and declaring at what place they will land them before he unships them , and upon licence had and in the presence of an officer they may unlade them ; otherwise they encur a forfeiture . chap. xv. provisions and allowances made notwithstanding the several clauses in the acts for the customes . i. custome to be paid for no more then is landed ; and when bulk shall be broken . ii. of goods imported and exported , what of the customes shall be repaid back , and by whom ; and of the things requisite in the same . iii. of agreement or contracts made or to be made for the importing and exporting by way of composition ratified . iv. what allowances to be made to the exporters of wines . v. of exporting of spanish wooll ; where the same may be done . vi. of currants exported , what allowances shall be made , and to whom , as well to denizens as forragn●…s . vii . goods imported not finding market after a year ; wine exported discharged of custome . viii . what allowances are to be made for leakage . ix . what shall be accounted leakage . x. wines proving unmerchantable , what allowances to be made . xi . tobaccoes receiving detriment or damage in the importation , what allowances to be made . xii . strangers paying double subsidy , where they shall pay double custome . xiii . of times and places lawful to unlade ▪ and officers duties then attendant to be present . xiv . york , new-castle and hull men where custome-free , and for what . xv. exceter and other western men , what free subsidies shall be allowed in . xvi . woollen where new or old what allowances shall be made in custome or subsidy . xvii . allowances of . in the hundred for all other goods . xviii . the customers and other officers duties in reference to attend their several duties in the customes . xix . of officers their duties , and the punishments where made on complaint . xx. the several duties of london how preserved . xxi . the like for other cities for those duties granted or taken for publique good uses . xxii . where ships may be visited , and the officers duty relating to the same . xxxiii . timber to be rated , and in what manner must pay . xxiv . prevention in extortion of customers and officers , and on what pains and penalties . xxv . where fees for cocquets and certificates shall be paid altogether , and where he shall detain his own cocquet till the vessel has broke ground . xxvi . where the officers and customers shall allow and make good to the merchants the algiere duty and all other allowances , and no other imposition or duty required by the book of rates , shall be required or paid . xxvii . if goods shall happen to be taken by enemies or pyrats , or wreckt , and what allowances shall be paid . xxviii . ships of warr and other priviledged vessels subject to search . xxix . of allowances to be made , and of shipping out lesser quantities then is contained in the certificate , what operation the same hath . . every merchant shall have free liberty to break bulk in any port allowed by law , and to pay custome and subsidy for no more then he shall enter and land ; provided that the master or purser of every such ship shall first make declaration upon oath before any two principal officers of the port of the true contents of his ships lading , and shall likewise after declare upon his oath , before the customer , collector , comptroler , surveyor , or any two of them at the next port of this kingdome where his ship shall arrive , the quantity and quality of the goods landed at the other port where bulk was first broken , and to whom they did belong . a merchant brought tun of bay salt by sea to a port in england , and out of that ship sold tun , and discharged the same into another ship then riding at the same port , but the tun were never actually put on shoare , and for the rest being tun the master agreed for the customes and put them on land ; and although that that tun was alwayes water-born and never were put on shoare , yet adjudged they ought to pay ; the reason was , for the discharging them out of the ship , amounts as much as to the laying them on land , the same being done in port ; for otherwise the king would meerly be defrauded . but if a ship is carried in by storm , and to preserve the vessel part is landed before the duty paid , yet this will not subject the same to a forfeiture . ii. all forraign goods and merchandizes ( except wines , currants and wrought silks ) first imported , shall be again exported by any merchant english within months , and such merchant and merchants as shall export any such forraign goods or merchandizes ( except as before is excepted ) shall have allowance and be repaid by the officer which received the same , the one moyety of the subsidy which was paid at the first importation of such goods or merchandizes , or any part thereof , so as due proof be first made by certificate from the officers of the due entry and payment of the custome and subsidy of all such forraign goods and merchandizes inwards with the oath of the merchants importing the same , affirming the truth thereof , and the name of his majesties searcher , or under-searcher in the port of london , and of the searcher of any other the out ports , testifying the shipping thereof to be exported ; after all which duly performed in manner before expressed , the moyety of the subsidy first paid inwards , shall without any delay or reward be repaid unto such merchant or merchants who do export such goods and merchandizes , within one month after demand thereof , as also the whole additional duty of silk , linnen and tobacco as before is directed . if the officer shall refuse to pay , ( admitting there was no relief had by way of complaint ) whether the merchant exporter may not bring an action against him upon the debt created in law , as he that hath a tally may do . iii. and if there be any agreement now in force , which was formerly made by the late commissioners of the customes and subsidies , with the merchants strangers or their factors , or shall hereafter be made by any commissioners or farmers of the customes and subsidies , or any other power ( except by consent of parliament : ) with any merchant or merchants strangers or factors for any forraign goods and merchandizes , to be brought into the port ▪ of london , or any other port or haven of this kingdome of england , or principality of wales , and to be exported again by way of composition ; all other merchants being his majesties subjects shall be admitted into the same composition , and not to be excluded from any other priviledge whatsoever granted to the stranger by any private agreement or composition , under the same condition and with the same restriction as shall be made with the merchant stranger . iv. every merchant as well english as stranger that shall ship and export any kind of wines which formerly have paid all the duties of tunnage inwards , shall ha●…e paid and allowed unto them all the duties of tunnage paid inward , except to the englishman s. per tun , and the stranger s. per tun , upon due proof of the due entry and payment of tunnage inwards and of the shipping thereof to be exported to be made as above . v. if any merchant , denizen or stranger shall export any spanish or forraign wooll , he shall have liberty so to do with this further condition , that such spanish or other forraign woolls whatsoever be not exported in any other ship or vessel whatsoever , with intent to be arrived beyond the seas out of the kingdome of england and dominion of wales , then only in english shipping , upon pain of confiscation . vi. every merchant as well english as stranger , which shall ship or export any currants which formerly were duly entred and paid the subsidy and custome inwards , shall have allowed and repaid unto them respectively all the custome and subsidy paid inwards for the same , except s. d. for every hundred weight to the english , and s. d. and one half penny for every hundred weight to the stranger , upon due proof of the due entry and payment of the custome and subsidy thereof inwards , and of the shipping thereof to be exported to be made as in the second article . vii . if any merchant having duly paid all duties inwards for forraign goods , and in regard of bad sales shall be enforced to keep the same or any part thereof in his hands after the space of a year shall be elapsed ; in this case he or any other person is to be permitted to ship the same out for parts beyond the seas if they think fit without payment for any subsidy for the same outwards , upon due proof that the same was duly entred and subsidy paid inward . viii . every merchant bringing in any sort of wines into this kingdome by way of merchandize , and shall make due entries of the same in the custom-house , shall be allowed per cent. for leakage . ix . every hogshead of wine which shall be run out and not full seven inches , shall be accounted for outs , and the merchant to pay no subsidy for the same . and by some is conceived that no freight shall be paid for the same , but the merchant may fling them up to the master for freight , but that should seem hard for non constat any fault in the master , but the same may be in the cask , or in the ill stowing ( the master by custome having no charge of the stowing of wines , especially french , but the same belongs to certain officers beyond seas from whence they are imported ) besides the goods be they empty or full take up tunnage in his ship , and should all the wines a shipboard have the same misfortune , it would seem hard ; however , it is pity opinion in this case should amount to a laudable custome . x. if any wines shall prove corrupt and unmerchantable , and fit for nothing but to distil into hot waters or to make vinegar , then every owner of such wines shall be abated in the subsidy according to such his damages in those wines by the discretion of the collectors of the customes and one of the principal officers . xi . if any tobacco or other goods or merchandize brought into this kingdome shall receive any damage by salt water or otherwise , so that the owner thereof shall be prejudiced in the sale of such goods , the principal officers of the custome-house , or any two of them , whereof the collector for the time being to be one , shall have power to choose two indifferent merchants experienced in the values of such goods , who upon visiting of such goods , shall certifie and declare upon their corporal oaths first administred by the said officers , what damage such goods have received , and are lessened in their true value , and according to such damage in relation to the rates set on them in the book of values , the officers are to make a proportionable abatement 〈◊〉 the merchant or owner , of the subsidy due for the same . xii . all merchants strangers who according to the rates and values set in the general book of values and rates , and do pay double subsidy for lead , ti●… , woollen cloth , shall also pay double custome for native manufactures of wooll ; and the said strangers are to pay for all other goods as well inwards as outwards , rated to pay the subsidy of poundage , three pence in the pound , or any other duty payable by charta mercatoria , besides the subsidy . xiii . that the merchants trading into the port of london have free liberty to lade and unlade their goods at any lawful keyes and places of shipping † and lading of goods between the tower of london , and london-bridge , and between sun-rising and sun-setting from the tenth day of september , to the tenth day of march ; and between the hours of six of the clock in the morning , and six of the clock in the evening , from the tenth day of march , to the tenth of september , giving notice thereof to the respective officers appointed to attend the lading and unlading of goods ; and such officer as shall refuse upon due calling to be p●…sent , he shall forfeit for every default l. the one 〈◊〉 to the king , the other to the party agrieved , he suing for the same . xiv . the merchants of york , kingston upon hull , and new-castle upon tyne , and the members thereof , shall be allowed free custome and subsidy two of the northern clothes and kersies in ten to be shipped in those ports in the name of double wrappers , as formerly has been there allowed them . xv. the merchants of exceter and other western parts shall be allowed free of subsidies one perpetanae in ten for a wrapper , and three devons dozens in twenty for wrappers , the same to be shipped out of the ports of exceter , plymouth , dartmouth , barnstable , lyme regis , or the members thereof . xvi . all merchants transporting any sort of woollen whether new or old drapery , as also all bayes and cottons , shall be allowed one in ten for a wrapper free of custome and subsidy . xvii . every merchant shall be allowed upon all other goods and merchandize appointed to pay to any the subsidy of poundage according to the rate in the book of values , to be imported , . in the hundred of all the said subsidies of poundage so appointed to be paid . xviii . the officers who sit above in the custome-house of the port of london , shall attend the service of their several places from . to of the forenoon , and one officer or one able clerk shall attend with the book in the afternoon during such time as the officers are appointed to wait at the waters side , for the better deciding of all controversies that may happen concerning merchants warrants , all other the officers of the out-ports shall attend every day in the custome-house of every respective port for dispatch of merchants and ships , between the hours of . and ; and . and . in the afternoon . xix . every merchant making an entry of goods either inwards or outwards , shall'be dispatched in such order as he cometh ; and if any officer or his clerk , shall either for favour or reward put any merchant or his servant duly attending and making his entries as aforesaid , to draw any other reward or gratuity from him then is limited in the act of tunnage and poundage , and the general book of values , if the master officer be found faulty herein , he shall upon complaint to the chief officers of the custome-house be strictly admonished of his duty ; but if the clerk be found faulty therein , he shall upon complaint to the said chief officers be presently discharged of his service , and not permitted to sit any more in the custome-house . xx. the lord major , commonalty and citizens of the city of london , their officers or deputies for and touching offices of package , scavage , baleage or portage of any goods or merchandize of aliens , or their sons born within this kingdom or unfreemen , imported or exported into or out of the city of london or the liberties or ports thereof unto or from the parts beyond the seas , for or concerning the receiving or taking of any fee or rates heretofore usually taken , for or in respect of the said offices , or any of them might and may receive and take the same , any thing in the act of tunnage and poundage , or any other act or thing to the contrary notwithstanding . xxi . all ancient duties heretofore lawfully taken by any city or town corporate their farmers , deputies or officers , under the name of town custome or the like , for the maintenance of bridges , keyes , harbours , wharfes or the like , shall and may be received and enjoyed as formerly , any thing in the said act , or any other act to the contrary in any wise non obstante . xxii . the under-searcher or other officers of gravesend have power to visit and search any ship outward bound , but shall not without just and reasonable cause detain any ship under colour of searching the goods therein laden above . tydes after her arrival at gravesend , under pain of loss of their office , and rendring damage to the merchant and owner of the ship , and the searcher or officer of the custome-house in any of the out-ports having power to search and visit any ship outward bound , shall not without just and reasonable cause detain such ship under colour of searching the goods therein laden above one tyde after the said ship is fully laden and ready to set sayl , under pain of loss of the office of such offender , and rendring damage to the merchant and owner of the ship. xxiii . all timber in balks which shall be of . inches square or upwards that shall be imported or brought from any part beyond the seas into the realm of england , dominion of wales , port and town of berwick , or any of them , shall be rated according to the measure of timber the foot square . d. for the value thereof , and according to that rate shall pay for subsidy d. in the pound according to poundage ; and all under eight inches square , and above inches square , shall pay for subsidy according to the rates mentioned in the book of rates for middle balks , and all of . inches square or under shall pay according to the rate of small balkes . xxiv . for avoiding of all oppressions by any the officers of the customes in any port of this kingdom , in exacting unreasonable fees from the merchant by reason of any entries or otherwise touching the shiping or unshipping of any goods , wares or merchandize it is ordered , that no officer clerk or other belonging to any custome-house whatsoever , shall exact , require or receive any other or greater fees of any merchant or other whatsoever , then such as are or shall be established by the commons in parliament assembled ; if any officer or other offend contrary to this order , he shall forfeit his office and place , and be for ever after uncapable of any office in the custom-house . xxv . all fees appointed to be paid unto the customer , comptroler , surveyor , or surveyor general in the port of london , for any cocquets or certificate outwards , shall be paid altogether in one sum to that officer from whom the merchant is to have his cockquet or certificate above in the custom-house ; and after the merchant hath duly paid his custome and subsidy and other duties above in the custome-house as is appointed above by the book of rates , he is to be master of and keep his own cockquet or certificate untill he shall ship out his goods so entred when as he is to deliver the same to the head searcher , or his majesties under-searcher in the port of london or other ports , together with the mark and number of his goods . xxvi . the officers of the custome-house for the time being shall allow and make unto all persons all such moneys as are or shall be due unto them for the half subsidy , and also the algier duty of forraign goods formerly exported now due and unpaid . the duties and sums of money appointed to be paid by the act of tonnage and poundage passed this parliament , and by the book of rates therein mentioned , and no other shall be paid to his majesties officers during the continuance of the said act upon goods imported and exported , any law , statute or usage to the contrary notwithstanding . nevertheless the duty of prizage and butlerage , and the duty of d. of every chaldron of sea-coal exported from newcastle upon tyne to any other port or ports of this realm , shall be continued . xxvii . if any merchant denizen born shall happen to have his goods and merchandize taken by enemies or pyrats at sea , or perished in any ship or ships , the duties being either p●…id or agreed for , upon due proof thereof may ship out of the same port the like quantity as shall amount unto the custome without paying of any thing for the same . if the importer shall pay ready money , he shall be allowed per cent. for so much as he shall pay down . xxviii . ships of warr may be entred and searched for prohibited and uncustomed goods , and to bring them a shoar to the kings ware-houses , and the commissioners or head officers may leave aboard officers to look after them , that none be unladen or imbezelled , on pain of forfeiturc of l. and if goods are concealed a shipboard after such time as the ship is cleared , to forfeit l ; and then any with a writ of assistance out of the court of exchequer to go in the day time to any place , and enter and seize . goods conveyed secretly into ships and carried away without paying the subsidy and duties , the owners and proprieters forfeit the double value , except coals , which only forfeit the double custome and duty . xxix . there are allowances to be given merchants for defective and damag'd goods of per cent. on all goods imported , and per cent. on all wines to be allowed upon debentures ; but if they shall ship out less then is in the certificate , then the goods therein mentioned or the value thereof shall be forfeited , and the owner or merchant shall lose the benefit of receiving back any of the subsidy : and goods shipped out are not to be landed again in england , on pain of forfeiture of those goods . all goods coming out of or carried into scotland by land , shall pass thorough berwick or carlisle , and pay customes as others , on pain of forfeiture . and although that by this act there are many allowances to be made , especially merchants denizens , yet the parliament have ever been so careful as to bound the same , that is , it shall be to such who trafick in ships , ( which are indeed the bul work of this isle ; ) and therefore if such merchandize shall be transported out in any gally or carrack , they are obliged to pay all manner of customs ; and all manner of subsidies , as any alien ▪ but in regard that herring and fish are , and have been accounted one of the principal commodities , and generally finds a vent or market in those kingdoms and countries that usually imploy such sort of vessels , those commodities may be transported in them as well as ships from any port , or harbour within this realm , without paying any subsidy or poundage for the same ; but then such fish must be taken by the natives of the kingdom and transported by them , otherwise to pay as aliens . and whereas all manner of woollen cloaths , as well white as coloured , unrowed , unbarbed , and unshorne , and not fully dressed , are prohibited by law † to be transported . his majesty was gratiously pleased to grant unto frances countess of portland as well for her alliance in blood , as also for the many crosses and calamities which she hath suffered by the loss and death of her nearest relations , in his majesty and his royal fathers service , full power for one and thirty years , to licence the transporting of such goods , non obstante such prohibitory laws , the which is now put in execution by agreement , and composition with her deputies at the custome house . chap. xvi . of the right of passage , of imposing on the persons and goods of strangers for passage thorough the seas . i. of the right of harmless utility excepted tacitly in the primitive dominion of things . ii. where passage ought to be open , and where the same might be implicitly provided for in the first institution of property , and under what cautions . iii. of the same right as in reference to goods and merchandize . iv. if passage admitted , whether tribute or toll may be imposed . v. where imposition may lawfully be laid , and for what causes ; and of the kings prerogative in that point . i. having in the foregoing three chapters observed somewhat of customes and impositions laid de facto within the realm , and that by acts of parliament , or the consent of the three estates , it may not seem amiss to enquire what imposition the king of his prerogative may impose on strangers and their goods passing thorough his territories and seas ; and in that to enquire of the same as in reference to persons and goods . beside the right of necessity which seems to be excepted in the first institution of dominion , there is another relique of old communion , namely , the right of harmless utility ; for why should not one ( saith * cicero ) when without his own detriment he may communicate to another in those things that are profitable to the receiver , and to the giver not chargeable . therefore seneca † saith it cannot be called a benefit to give leave to another to light his fire by yours . we read in plutarch it is not lawful to spoyl our victuals when we have more then enough , nor to stop nor hide a fountain when we have drunk our fill ; nor to abolish the way marks either by sea or land which have been useful to us : so a river as a river is proper to that prince or that lord , or that people within whose dominion or royalty it runs , and they may make a mill on it , ( unless it be common as a high-way ) and may take what fish the river yields , but the same river as a running water remained common as to drinking or drawing of it , notwithstanding as to the fishing and the like it may be peculiar . ii. again , lands , rivers , nay if any part of the sea be come into the dominion or property of any people , it ought to be open to those that have need of passage for just causes , namely , being expelled by force out of their own country they seek void places , or because they desire commerce with remote nations ; the reason here is the same which hath been mentioned * elsewhere , because dominion might be introduced with a reception of such use † which profits these , and hurts not those , and therefore the authors of dominion are to be supposed willing rather to have it so , then that such a restriction which perhaps in the end may destroy society : however this hath its quantum , for though harmless passage may be excepted in the first institution of dominion ; yet that is to be understood when leave is granted : and though fear of the multitude which is to pass cannot take away that prince his right thorough whose territories or seas they go ; yet it follows as naturall that in the institution of such liberty that prince or people may provide , and if they have any probable or any reasonable cause interdict their passage till security or hostages are pledged for their peaceable passage , nay without declaring their reason may interdict them absolutely any manner of passage , if there be any other way to pass in safety ; and therefore at this day by the laws of england , the king may interdict any nation or people whatsoever to pass through his seas without leave first obtained to that purpose , and may visit all ships , be they of war or of trafick that shall occur or be in the same . iii. nor is passage onely due to persons but to merchandize also , for no man hath right † willfully to obstruct the way of commerce to any nation with any other that is remote ; because the permission of trade is for the interest of humane society , and is not discommodious to any one , and to that purpose philo speaks ; * on the sea all ships of burden safely pass according to that right of commerce which is between all nations arising from the desire of natural society , while they supply one another mutually which the one wanteth , and the other can spare ; for envy hath never invaded either the whole world , or the greater parts thereof . and plutarch speaking thus of the sea , this element hath made our life sociable and perfect , that otherwise would be wild and without correspondence ; it supplyes our wants with mutual ayd , and by exchange of things needful it procures fellowship and friendship . and the wisdom of god is highly to be admired , who hath not granted all things to every land , but hath distributed his gifts to several countries , that men having need of one another might maintain society for their common good , therefore hath he endowed man with knowledge and understanding to invent and build ships , to govern and guide them by those lamps of heaven and other instruments of his divine wisdome , enabling thereby the merchant to convey to all what any place affords : according to that of the poet , what nature any land denyed , by navigation is supplyed . but as the sea is free and open for traders , yet nevertheless the passengers are subject to such restrictions , laws and ordinances as those soveraign princes shall make of force in those places where they have an accession of property or soveraignty . iv. but admitting that such free passage may be granted as above , whether tribute may be imposed by him that rules the land , upon merchandize passing by land or by river , or by part of the sea , which may be called an accession of the land , ( that is , the place thorough which they pass , is as much under the absolute jurisdiction of the prince , as the very land it self ; ) certainly whatsoever burdens have no relation to the merchandise , no equity suffers the same to be imposed on the same ; neither can poll-money put on the inhabitants to sustain the charge of the commonwealth , be exacted of passengers . v. nevertheless , if either to secure the passengers goods and vessels from pyrats and others , or for the erecting of beacons , light-houses and other sea-marks , and such like , * there indeed some compensation may be laid upon the commodities or ships passing thorough , so that the measure of the cause be not exceeded ; or as my lord coke observes in the case of the halage money , † it be reasonable ; for upon that depends the justness of tributes and toll : and upon those reasons the venetian in the hadriatique , the king of denmark in the baltique sea , does demand the same ; and the king of england may do the like in the chambers of his empire , and that by his prerogative ; for the same is not so much compulsory to any to pay , but to them that will take benefit of such accommodation . strabo relates , that the corintbians even from the most ancient of times received tribute of the commodities , which to avoid the compassing of malea were carried by land from sea to sea. so the romans received a price for the passage of the rhine . but this right of imposing on ships and goods passing thorough some territories is found cruel , especially when they must pass thorough the territories of a powerful and fierce people , then it is heavy to the merchant to compound , for it 's often done on hard and grievous terms . the end of the second book . chap. i. of freedom , bondage , slavery , erile , and abjuration . i. of freedom by the law of nature , and of bondage , slavery , or captivity introduced by the law of nations . ii. of the actions that subject man to bondage . iii. of the dominion over slaves , bond-men and captives . iv. of the cause , or reason of such dominion . v. that this right or dominion , was not a law universal . vi. of bondage or slavery , where discontinued by the christians , and mahomitans . vii . of a servitade at this day , standing with the laws of a christian common-wealth . viii of manumission and freedom by the hebrew and roman law , and by the laws of england . ix . of disfranchising the several ways . x. of abjuration and exile , and what operation it hath . xi . of freedom in cities and corporations , in reference to merchants , traders and foreiners . i. in the primitive state of nature , no men were servants ; yet it is not repugnant to natural justice , that by the fact of man , that is , by covenant or transgression , servitude should come in ; therefore servitude is brought in by the laws of nations . ii. hence it is , that those that will yield up their persons , or promise servitude , are accounted slaves ; so likewise all that are taken in publick war , and brought within the guards of their conquerors ; nor is transgression necessary , but the lot of all is equal , after the war is begun , even of those whose ill fortune subjected them to be deprehended within the enemies bounds ; nor are they servants only themselves , but all their posterity for ever . iii. the priviledges of this right or dominion , are infinite ; since there is no suffering which may not be imposed on such , nor work which may not every way be extorted from them : so that even the cruelty of masters became almost unpunished , till the municipal laws of countreys set bounds to their rigour and power . nor are the persons become theirs only that have the power of them ; but also all that they have ; for such unhappy persons can have nothing of their own . hence it was , that that excellent law in favour of such , was introduced by the romans , called legis corneliae , which was when a captive , intra presidia hostium , dyed in his captivity ; if he had made a will , before his being taken captive ; yet such a captive should in favour of such will , and for the upholding of the same , be feigned to be dead , and in puncto temporis , immediately before such his being taken captive ; and so by that legal fiction of death , his will became firm and valid , as if he had really dyed without ever being taken by the enemy . so likewise if one had been made a slave ; yet if he had returned out of his captivity , that for the preservation of his right and propriety , he was feigned as if he had never been absent , and was immediately redintigrated into his pristine estate and condition . iv. now all these priviledges and immunities were introduced by the laws of nations , for no other reason , but that their captors , tempted by so many immunities , might willingly abstain from that cruel rigour of slaying their prisoner . hence it is , that the captors dominion is extended to the children ; for should such use their highest right , they would not be born ; but children that are born before that calamity , and were never taken prisoners , are freed from that unhappy state . v. though this dominion or right was generally acquired in most nations ; yet was not the same a universal law ; for amongst the jews , refuge was granted to servants who fell into that calamity by no fault of their own . and the state of christendome at this day is apparent , that prisoners taken in war , do not become perfect slaves , as of old ; but only remain in the custody of the captor , till ransoms are paid , whose valuations are generally at the pleasure of the conqueror ; yet persons of eminent quality , as generals , and the like ; such persons , * if taken by a common soldier , yet he has no advantake by the same ; for such a captive is become prisoner immediately to that prince or state under whom the captor served : but if it be the lot of an inferior soldier to become a prisoner of war , he is then become absolutely the captors to dispose of ; but he wanting those necessaries in the field for himself , which he ought to provide for his prisoner , commonly waives that interest , and generally yields him up as a prisoner of war to be disposed of by that prince or state under whom he served . vi. slavery in christendome is now become ●…bsolete ; and in these latter ages the minds of princes and states having as it were universally agreed to esteem the words slave , bondmen , or villain , barbarous , and not to be used ; and that such as are taken in war between christian princes , should not become servants , nor be sold , or forced to work , or otherwise subjected to such servile things ; but remain till an exchange of prisoners happen , or a ransom paid , as afore : nay , the very turks and mahomitans at this day generally observe this among themselves , not to make slaves of those of the mahomitan religion , though taken in war ; and that which is most to be admired , a christian fallen into that miserable state , renouncing his religion , and becoming a mahomitan , immediately upon his circumcision , obtains his freedom ; with a recompence : the cruelty of those infidels to those unhappy persons , together with the reward of renouncing , hath given cause to many a brave person to become renegado ; the which being considered by the parliament in england , they made a * provision for such miserable persons as should be taken by turkish and moorish pyrats . vii . though slavery and bondage are now become discontinued , in most parts of christendome ; yet there may be a servitude which may amount to a labour or suffering equal to that of captives , the which may be justifiable ; for men either through poverty , and the † like , may oblige themselves by contract for maintenance to a servitude that 's perpetual , i. e. for life , and so for years ; but at this day there is no contract of the ancestor can oblige his posterity to an hereditary service ; nor can such as accept those servants , exercise the ancient right or dominion over them , no nor so much as to use an extraordinary rigour , without subjecting themselves to the law : if an eye or a tooth had been struck out injuriously , by the hebrew law freedom was immediately due ; and by the greeks , if servants had been ill treated , it was lawful for them to demand a sale of themselves to others . at rome the statues became sanctuaries for servants to implore the help of the governours , against rigour , hunger , or any other intollerable injury inflicted by their masters ; and even in london at this day , servitude amongst the many causes , as not inrollment of the indentures , not instructing in the art , want of necessaries infra aetatem , &c. cruelty , hunger , rigour , immoderate correction , and the like , are causes sufficient on a monstrans , or petition to the lord mayor and aldermen , to dissolve the contract , though under hand and seal , and to decree all , or part of the dowry , or some given ( if any ) to the servant ; and if cruelty hath been in the case , to expose the master to answer dammage to the party servant . viii . ulpianus observes after , that by the laws of nations servitude came in , then followed the benefit of manumission . by the hebrew law , after the expiration of the time agreed on , the servant was to be manumitted , and that not without gifts , like londons freedom ; by the custom of which the master is always at the charge of cloathing , and discharging the chamberlains fees. by the roman law , every son was in such subjection to his father , that before he could be released of this subjection , and made free , he should by an imaginary sale be sold three times by his natural father , to another man , who was called by the lawyers pater fiduciarius ; that is , a father in trust , and then be bought again by his natural father , and so manumised by him , and then he became free : this form of setting free was by them called emancipatio : freedom . that roman darling was to be obtained three ways : . by birth , * both , or at least one of their parents being free ; and such were called cives originarii . . by gift and co-optation , when the freedom was bestowed on any stranger or nation , and they were termed civitate donati : and so we read , that caesar took in whole nations into the freedom . lastly , by manumission , which was thus ; when as the servant was presented by his master before the consul or praetor ; the master laying his hand upon his servants head , used this form of words , hunc liberum esse volo ; and with that turning his servant round , and giving him a cuff on the ear , he did emittere servum e manu : the praetor laying then a certain wand , or rod , called vindicta , upon the servants head , replyed in this manner , dico eum liberum esse more queritur ; then the lictor or serjeant taking the wand , did strike the servant on the head , and with his hand he struck him on the face , and gave him a push on the back ; and after this he was registred for a freeman : this being performed , the servant having his head shaven purposely at that time , received a cap as a token of liberty . tertullian observes , that at this time of their manumission , the servants received from their masters a white garment , a gold ring , and a new name added to their former . by the laws of england , every subject born within the kings dominions , is a freeman of this realm , as appears by the grand charter , cap. . yea , though he be a bond-slave to a subject : * but a stranger born , is no free-man , till the king have made him a denizon , in whose power alone , without the help of any other , one may be made free. to be a freeman of the realm , the place of birth , is held more considerable than the quality of the person : yet by the opinion of hussey chief justice , in r. . fo . . and in calvins case of the post nati , it is held for law , that if ambassadors of this realm have children born in france , or else where ; the father and mother being natural born subjects , the children are free of the realm of england : but if either the father or the mother of such children were an alien , then are not those children free. but the law is conceived to be otherwise at this day . the statute de natis ultra mare e. . cap. declares , the issue born of an english-man , upon an english-woman , shall be a denizon ; for upon the construction of this statute , it has been adjudged more than once , that if an english-man marry a foreiner , and has issue by her born beyond seas , the issue is a natural born subject . ix . disfranchising by the romans , called capitis diminutio , was three fold , maxima , media , & minima ; the least degree was , when the censors pulled a man from a higher tribe down to a lower , and less honourable ; or when by any censure , they disabled a man from suffraging or giving his voice in the publick assemblies ; such as were thus in the last manner punished , were termed aerarii , and in aerarios veluti , quia omnia alia jura civium romanorum preterquam tributi & aeris conferendi amiserunt . gellius relates , that p. scipio nascica , and m. pompilius , being censors , taking a view of the roman knights , observed one of them to be mounted on a lean starvling horse , himself being exceeding fat ; whereupon they demanded the reason , why his horse was so lean , himself being so fat ? his answer was , quoniam ego inquit , me curro ; statius mens servus . by the ancient laws of england , and by the great charter , no freeman shall be taken or imprisoned , but by the lawful judgment of his peers ( that is , by jury , peers for peers , ordinary juries for others who are their peers ) or by the law of the land ; which is always understood by due process of the law , and not the law of the land generally ; for otherwise that would comprehend bond-men , ( whom we call villains ) who are excluded by the word liber ; for such bond-men might be imprisoned at the pleasure of his lord ; but a free-man neither could , nor can , without a just cause ; nor does the priviledge extend to private actions , or suits between subject and subject ; but even between the sovereign and the subject : hence it is , that if a peer of the realm be arraigned at the suit of the king for a murder , he shall be tryed by his * peers , that is by the nobles . but if he be appealed of murder upon the prosecution of a subject , his tryal shall be by an ordinary jury of free-holders ; and as the grand charter did , and does protect the persons of free-men ; so likewise their free-hold : for by the same charter it is declared , that the king , or his ministers , shall out no man of his free-hold , without reasonable judgment ; and so it was rul'd upon a petition in parliament , setting forth , that a writ under the privy seal , went to the guardian of the great seal , to cause lands to be seized into the kings hands ; and that thereupon a writ issued forth to the escheater , to seize against the form of the great charter ; upon debate of which , the party had judgment to be restored : the greatest , and most explanatory act , which succeeded in point of confirmation , was that of edward the d. the words are , that no man , of what estate or condition soever he be , shall be put out of the lands and tenements , nor taken , or imprisoned , nor dis-inherited , nor put to death , without he be brought to answer by due process of the law ; that is , by the common law. . diminutio media , was an exilement out of the city , without the loss of ones freedom ; the words of the judgment or sentence were , tibi aquae & igni interdico . . diminutio maxima , was the loss both of the city , and the freedom , and by his judgment or sentence was obliged and limited to one peculiar countrey ; all other places in general being forbidden him . there was a fourth kind of banishment , disfranchising , called relegatio ; which was the exilement only for a season , as that of ovid's . * the laws of england in this matter have some resemblance with those of the romans ; for bracton observes distinctions . . specialis , hoc est interdictio talis provinciae , civitatis , burgi aut villae . . generalis , interdictio totius regni , & aliquando est . . temporaria , pro duobus , tribus , quatuor , aut pluribus annis , aut &c. — . perpetua , pro termino vitae , & exilium est aliquando ex arbitrio principis sicut in exiliando duces hertfordiae , & norfolciae , per regem richardum secundum , & aliquando per judicium terrae , ut fit in casu piers de gaviston , & etiam in casu hugonis de le spencer junioris , qui ambo fuerunt exilit ' per judicium in parliamento . so likewise was that of the banishment of the earl of clarendon , who dyed beyond the seas . * x. abjuration , was also a legal exile , by the judgment of the common law , as also by the statute law ; and in the statute of westm , the second cap. . he which ravishes a ward , and cannot render the ward unmarried , or the value of his marriage , must abjure the realm ; and this is a general exile : and by the statute made ed. . butchers are to be abjured the town , if they offend the fourth time , in selling measled flesh ; and this is a special banishment . a man exil'd , does forfeit these things . . hee looseth thereby the freedom and liberty of the nation out of which he is exiled . . he forfeits his freedom in the burrough or city where he was free ; for he which forfeits the freedom of the whole realm , forfeits his freedom in every part . . the law accounts him as one dead ; for his heir may enter , and so may his wife enter into her own lands , and may sue an action as a feme sole . . he shall forfeit those lands which he shall purchase in the realm , during his banishment ; for he during his banishment , is as much disabled to purchase , as an alien ; for fit alienigena by his banishment ; and he is observed to be in a worse condition than an alien ; for he is marked with indignatio principis . 't is true , he cannot forfeit neither title of honour , nor knighthood , nor the lands he had before exile , unless there be special sentence or judgment , as that of the spencers . if the father be in exile , this hinders not the freedom of the son ; for the same is not a thing descendable ; for should it be so , then the banishmens of the father would make a forfeiture of the freedom ; but the son has this freedom by his own birth , as a purchase , and not by the death of his father by descent : like the case where j. s. hath many children , and then he confesseth himself a villain to j. d. in court of record ; yet his children formerly born , are free-men , and no villains ; the reason is , because they were free by their own births ; but the inheritance is inthralled , because it is to come to the heir by descent . xi . a free-man of a city or burrough , may be made divers ways , as my lord cooke observes , . by service . . by birth , by being the son of a free-man . . by purchase , or redemption . at bristol by marriage . sir john davies in his irish reports , observes the same for law. st. paul was born at tarsus in cicilia , which was under the obedience of the romans ; by vertue of which he challenged the priviledge of a roman citizen ; but it was accounted no more than a national freedom ; like that of calvin , who claimed the general freedom of an english-man , being born in scotland , but under the obedience of the king of england ; but that challenge made not st. paul free of the private customs , priviledges , and franchises of rome , no more than calvins birth made him a free citizen of london , to the particular customs of that city . the king , by his letters patents , cannot make one a free-man of london ; † yet he may thereby make him a free-man of his kingdom . if one be born in a city , of parents that are not free , the child hereby is no citizen by birth ; and if one be born of free parents out of the place of priviledges , as london , &c. he yet is a free-man by birth ; yet in the charter granted to yarmouth , the words were concessimus burgensibus de magna yarmutha de villa praedict ' oriundis , that they should have such and such liberties : so that special words may alter the case . london had many royal franchises granted them from time to time , and were often by former kings successively confirmed , nor wanted they a share when the great charter was granted , to have their ancient liberties secured , nor were the succeeding princes slack in their royal grants and confirmations ; but especially richard the second , who in parliament granted and confirmed to them all their ancient customes and liberties , with this clause licet usi non fuerint vel abusi fuerint ; and notwithstanding any statute to the contrary , amongst the number of their many priviledges , the freedom of the same was accounted of no small importance , since in divers parliaments it was very much aimed at , and endeavoured to be impaired ; but at last they obtained a most gracious and royal confirmation in parliament of their ancient liberties , amongst which it is declared that no merchant , being a stranger to the liberty of the said city , should sell any commodities within the liberty of the said city to other merchant-strangers ; nor that such merchant-stranger should buy of anyother merchant-stranger such merchandize , within the liberty of the said city , without forfeiture thereof ; saving that any person , lord , knight , &c. may buy within the liberties of any merchant-stranger merchandizes in gross for their own use , so that they do not sell them again to any other . and as this city by custom may pre-clude any person , not being free of the same , to sell in such manner upon such pain ; so any other city , which are burroughs or cities by prescription within this realm , may have the like custom , and the goods sould or bought by such , may be subjected to forfeiture , but the same cannot be good by charter or grant. a compleat free-man is such a one as hath challenged his freedom , and taken the free-mans oath , and is admitted into the society and fellowship of the free-men , citizens , and burgesses , otherwise he hath but a bare right to his freedom . chap. ii. of aliens , as in relation to their estates real and personal . i. of an alien his ability and disability in the taking and enjoying of estates real and personal . ii. of his capacity in purchasing , and disability to transfer by an hereditary descent . iii. of the rules of descents , according to the laws of several countreys . iv. of descents according to the rules of the common law of england lineal and collateral . v. of impediments in one that is not the medius antecessor . vi. of impediments in one that is the medius antecessor lineal and collateral . vii . of the statute of natis ultra mare , and of issues born beyond the seas . viii . the lord cokes opinion , that if an allien has issue two sons denizons , the one purchases lands , and dyes , the other cannot inherit them , debated and refuted . ix . of foreign births , which do not create a disability . x. of aliens not disabled by law to bring either real or personal actions . xi . of office that must entitle the king to an aliens estate ▪ xii . of some particular immunities and other matters relating to an alien . an alien is one born in a strange countrey , under the obedience of a strange prince and state , and out of the legeance of the king of england , and can have no real or personal action for or concerning lands ; and therefore if he purchase lands , tenements , and hereditaments to him and his heirs , albeit he can have no heir , yet he is of capacity to take a fee-simple , but not to hold , for the king upon office found shall have it by his prerogative . so it is if he purchase lands and dyes , the law doth cast the free-hold and inheritance upon the king. but if he purchase or take a lease for years of a house or ware-house , which is for the accommodating him as a merchant-stranger , whose prince or state is in league with ours , there he may hold the same , for that the same is incident to commerce . and in that case if he departs and relinquishes the realm , the king shall have the same , so it is , if he be no merchant . the like law is if he takes a lease of meadows , lands , woods , or pastures , the king shall have the same ; for the law provides him nothing but a habitation to trade and traffique in as a merchant . ii. though he may take by purchase by his own contract , that which he cannot retain against the king , yet the law will not enable him by an act of its own , to transfer by hereditary descent ( the alien dying , his issue a denizon born ) the land will not descend , or to take by an act in law , for the law quae nihil facit frustra will not give him an inheritance or free-hold by an act in law , for he cannot keep it . therefore the law will not give him . by discent . . by courtesey . . by dower . . by guardianship . and in respect of that incapacity he ressembles a person attaint , but with this difference . the law looks upon a person attaint as one that it takes notice of , and therefore the eldest son attainted over-living the father , though he shall not take by descent in respect of his disability , yet he shall hinder the descent to the younger . but if the eldest son be an alien the law takes no notice of him , and therefore as he shall not take by descent , so he shall not impede the descent to the yonger brother : as for instance , if there be three brothers , the eldest an alien , the other two naturalized , and the middle brother purchase , and dyes without issue , the younger brother shall have the lands . iii. concerning the rules of descents we are not to govern our selves therein by the general notions of love or proximity of nature , but by the municipal ltws of the countrey wherein the question ariseth ; for the various laws of divers countreys have variously disposed the manner of descents , even in the same line and degree of proximity : for instance , the father certainly is as near of kin to the son , as the son is to the father , and is nearer in proximity than a brother , and therefore shall he preferred as next of kin in administration to the sons estate . according to the jews , for want of issue of the son , the father succeeds , excluding the brothers , and that hath been the use and construction of the jewish doctors upon numb . . . but the mother was wholly excluded . . according to the provision of the greeks for the succession or exclusion of the father , is left doubtful . . by the roman or civil law , according to the estimation of the twelve tables , the father succeeded in the purchase of the son for want of issue of the son , under the title proximit agnato , and so was the use ; but my lord cook supposes the contrary . but taking the whole institution of justinian , the son dying without issue , his brothers , sisters , father , or mother do succeed him as well to land as goods , in a kind of copercenary . . according to the laws of normandy , ( which in some things have a cognition with our law ) his brothers are preferred before the father ( if the son dye issueless , ) but his father before his uncle . . according to the laws of england the son dying sans issue , or brothers , or sisters , the father cannot succeed but it descends to the uncle . iv. there be two kinds of descents , according to the common laws of this realm . . lineal from the father or grand-father , to son or grand-son . . collateral or transversed , as from brother to sister , uncle to nephew , and e converso : and both these again of two sorts . . immediate , as in lineals from father to son. . mediate , as in lineals from grand-father to grand-child , where the father dying in the life time of the grand-father , is the medium differens of the descent . collateral as in lineal from uncle to nephew , or e converso . and this meditae descent , or meditate ancestor , though to many purposes it be immediate ; for the father dying in the life of the grand-father , the son succeeds in point of descent in the lands immediately to the grand-father ; and in a writ of entry shall be supposed to be in by the grand-father , and not in the post & cui . this is called a mediate descent , because the father is the medium through whom the son derives his title to the grand-father . in immediate descents there can be no impediment , but what arises in the parties themselves : for instance , the father seized of lands , the impediment that hinders the descent must be in the father or son , as if either of them attaint , or an alien . in mediate descents , a disability of being an alien or attaint , in him that is called the medius antecessor , will disable a person to take by descent , though he himself have no such disability . in lineal descents , if the father be attaint , or an alien , and hath issue a denizon born , and dye in the life time of the grand-father , the grand-father dyes seized , the son shall not take , but the land shall escheat . in collateral descents a. and b. brothers , a. is an alien or attaint , has issue c. a denizon born , b. purchases lands and dyes without issue , c. shall not inherit , because a. which was the medius antecessor or medium differens , is uncapable . v. but in any descents , the impediment in an ancestor that is not medius antecessor , from whom and to whom will not impede the discent . as for instance , the grand-father and grand-mother both aliens , or attaint of treason , have issue , the father a denizon , who hath issue the son a natural born subject , the father purchases lands , and dyes , the son shall be heir to the father , notwithstanding the disability of the grand-father , ( and yet all the blood which the father hath is derived from his disabled parents ) for they are not medii antecessores , between the father and the son , but paramont . the law does not hinder , but that an alien is of the same degree and relation of consanguinity , as natural born subjects or denizons born , the son , father and brother though aliens ; the son , father , and brother our law takes notice of as well as natural born subjects , and so it was adjudged , for he shall be preferred in administration , though an alien , as next of kin. but in cases of inheritance the law takes no notice of him , and therefore as he shall not take by descent , so he shall not impede the descent to the younger brother : as for instance , a , an alien , b. and c. naturalized by act of parliament , ( brothers ) b. purchases lands and dyes sine prole , c. shall inherit , and not a. a. an alien , b. and c. his brothers both naturalized by act of parliament , b. purchases lands and d●…es w●…th out issue , the same shall not come to a , nor to his issue though a denizon , but shall come to c. and his issue ; the law taking no notice of a. as to impede the succession of c. or his issue , though it work a consequential disability to bar the issue of a. parallel to what the law calls corruption of blood , which is a consequent of attainder . vi. again in lineal descents , if there be a grandfather natural born subject , father an alien , son natural born subject , the father is made denizon , he shall not inherit the grand-father ; and if the father dyes in the life of the grand-father , the grand-child , though born after the denization , doth not remove neither the personal nor consequential impediments or incapacity of the father . in collateral descents , the father a natural born subject has issue two sons aliens , who are both made denizons , and dyes without issue , the other shall not inherite him . a. an alien marries an english woman , who is seized of lands and has issue , the father and mother dyes , yet the issue may inherite the mother , non obstante the incapacity of the father being an alien . vii . the statute de natis ultra mare , declares the issue born of an english-man upon an english-woman shall be a denizon ; yet the construction has been , though an english merchant marry a forraigner , and has issue by her born beyond the seas , that issue is a natural born subject . but if an english-woman go beyond the sea , and there marry an alien , and have issue born beyond the sea , that issue are aliens . if an english-woman marries an alien beyond the seas , and than comes into england and has issue , they are not aliens , but may inherit . my lord cook in his commentaries on littleton , seems to be of opinion , that if an alien has issue two sons born in england , one dying without issue , the other shall not inherit him . but the law is otherwise taken at this day , as i conceive the reasons that have been given , are i. though the descent from one brother to another brother be a collateral descent , yet it is an immediate descent , and consequently if no disability or impediment can be found in them , no impediment in another ancestor will hinder the descent between them : that this is an immediate descent appears , first , in point of pleading , one brother shall derive himself as heir to another , without mentioning any other ancestor . secondly , according to the computation of degrees , brother and brother make but one degree , and the brother is distant from his brother or sister in the first degree of consanguinity and no more , by the laws of england . according to the civil law * , brother and brother make but one degree , for the brother is in the second degree from the brother , yet both make but one degree . according to the canon law † , frater & frater , or frater & soror sunt in primo gradu . and therefore the laws prohibiting marriage between kindred in the fourth degree , takes brother and sister to be the first degree of the four . the laws of england in computation of the degrees of consanguinity agrees with the canon law , and reckons the brother and brother to be the first degree . herewith agrees the customs of normandy * , which though in some cases differs from the laws of england , yet herein and in divers other particulars touching descents , they agree . another evidence to prove that the descent between brother is immediate , is this ( viz. ) the descent between brothers differs from all other collateral descents whatsoever , for in other descents collateral the half blood does inherit , but in a descent between brother the half blood does impede the descent , which argues that the descent is immediate . the uncle of the part of the father has no more of the blood of the mother , than the brother by the second venter , the brother by the second venter has the immediate blood of the father with the uncle ( viz. the fathers brother ) has not but only as they meet in the grand father ; the brother of the half blood is nearer of blood then the uncle , and therefore shall be preferred in administration . it is apparent that if in the line between brother and brother , the law takes notice how the father was the medium thereof , the brother of the second venter should rather succeed the other brother , because he is heir to the father , therefore in a descent between brothers the law respects only the immediate relation of the brothers as brothers , and not in respect of the father , though it is true , the foundation of their consanguinity , is in their father or mother . again , if the father , in case of a descent between brothers , were such an ancestor as the law lookt upon as the medium that derives the descent from the one brother to the other , then the attainder of the father would hinder the descent between the brothers : but the attainder of the father does not hinder the descent between the brothers , the reason is , because the father is not such a medium or nexus that is look'd upon by the law , as the means deriving such a descent between the two brothers ; as for instance of three cases , two whereof evince the first preposition . ( viz. ) that although the descent from one brother to another brother , though it be a collateral descent , yet is an immediate descent , and that if no disability or impediment arises in them , no impediment in another ancestor will hinder them . the younger brother has issue , and is attainted of treason and dyes , the elder brother has title to a petition of right , dyes sans issue without a restitution , the younger brothers son has lost that title ; for though the title were in the ancestor that was not attaint , yet his father that is the medium whereby he must convey that title was attaint , and so the descent was obstructed . henry courtney had issue edward , and was attainted of treason and dyed , edward purchased lands and dyed without issue , the sisters and heirs of henry were disabled to inherit edward , yet neither edward nor his aunts were attainted , or their blood corrupted , yet because henry was the medium through whom the aunts must derive their pedigree and consanguinity to edward , who was attainted , the descent was obstructed till a restitution in blood . but if the grand-father , of edward had been attainted and not henry , this would not have hindred the descent from edward to the aunts , because that attainder had been paramount , that consanguinity which was between henry and his sister , and that is proved by this third case . william hobby had issue phillip and mary , and was attainted of treason and dyed , phillip purchases lands , and dyed without issue ; it was adjudged in that case , that non obstante the attainder of william hobby , mary should inherit , because the descent and pedigree between phillip and mary was immediate , and the law regards not the disability of the father . if the heir of the part of the father be attaint , the land shall escheat , and shall never descend to the heir of the part of the mother ; but if the son purchase lands , and has no kindred of the part of the father but an alien , it shall descend to the heirs of the part of the mother . ix . those that are born sub side legiantia obedientia domini reges are not aliens , and therefore those that were born in gascoyne , normandy , acquitaine , turnay , callice , guyan , whilst they were under the dominion of the kings of england , were natural born subjects , and not aliens . scotland is a kingdom by union , and therefore those that were born in scotland under the allegiance of the king , as of his kingdom of scotland , before the crown came united , were aliens born , and such plea against such persons was a good plea ; but those that were born since the crown of england descended to king james , are not aliens , for they were born sub side legiantia domini regis ; so those that are born at this day in uirginia , new england , barbadoes , jamai●…a , or any other of his majesties plantations and dominions , are natural born subjects , and not aliens ; so likewise those that are born upon the king of england's seas , are not aliens . x. but if an alien be made an abbot , prior , bishop , or dean , the plea of an alien we shall not disable him to to bring any real or mixt action , concerning the possessions that he hold in his politique capacity , because the same is brought in auter droit . the like law is for an executor or administrator , because the recovery is to anothers use . if an action is brought against an alien , and there is a verdict and judgment against him , yet he may bring a writ of error and be plaintif there , and that such plea is not good in that case . though an alien may purchase and take that which he cannot keep nor retain , yet the law hath provided a mean of enquiry before he can be devested of the same , for until office be found , the free-hold is in him . and this office , which is to gain to the king a fee or free-hold , must be under the great seal of england , for a commission under the exchequer seal is not sufficient , to entitle the king to the lands of an alien born ; for the commission is that which gives a title to the king , for before that the king hath no title , but in cases of treason there upon attainder , the lands are in the king without office ; and in that case , to inform the court , a commission may go out under the echequer seal . xi . if an alien , and a subject born , purchase lands to them , and to their heirs , they are joint tenants , and shall join in assize , and the survivor shall hold place till office found . by the finding of this office the party is out of possession , if the same be of houses or lands , or such things as do lye in livery ; but of rents , common advowsons , and other inheritances incorporeal which lye in grant , the alien is not out of possession ( be they appendant or in gross ) therefore if an information or an action be brought for the same , the party may traverse the office in that court , where the action or information is brought for the king. and if the king obtains not the possession within the year after the office found , he cannot seize without a scire facias . it is not for the honour of the king ( an alien purchasing of a copyhold ) to seize the same , for that the same is a base tenure ; and so it was adjudged where a copy-hold was surrendred to j. s. in trust that one holland an alien , should take the profits thereof to his own use and benefit , upon an inquisition taken , it was adjudged the same was void and should be quashed , because the king cannot be entitled to the copyhold lands of an alien , nor to the use of copyhold lands as the principal case was . an alien infant under the age of years , cannot be a merchant trader within this realm , nor can he enter any goods in his own name at the custom-house . if an englishman shall go beyond the seas , and shall there become a sworn subject to any forraign prince or state , he shall be look'd upon in the nature of an alien , and shall pay such impositions as aliens ; if he comes and lives in england again , he shall be restored to his liberties . an alien is robbed , and then he makes his executor , and dyes , and afterwards the goods are waift , the lord of the franchise shall not have them , but the executors . vide stat. . e. . all personal actions he may sue , as on a bond , so likewise for words ; for the common law according to the laws of nations protects trade and traffique , and not to have the benefit of the law in such cases is to deny trade . chap. iii. of naturalization and denization . i. whether the kings of england can naturalize without act of parliament . ii. what operation naturalization hath in reference to remove the disability arising from themselves . iii. what operation naturalization , hath as in reference to remove deffects arising from a lineal or collateral ancestor . iv. a kingdom conquered , and united to the crown of england , whether by granting them a power to make laws , can implicitely create in them such a soveraignty , as to impose on the realm of england . v. of persons naturalized by a kingdom dependant , whether capable of imposing on one that is absolute . vi. of kingdoms obtained by conquest , how the empire of the same is acquired , and how the conqueror succeeds . vii . ireland what condition it was accounted before the conquest , as in reference to the natives of the same , and whether by making it a kingdom , they can create a forraigner as a natural born subject of england . viii . of aliens , as in reference to the transmission of their goods , & chattels by the laws of france . ix . of the priviledges the kings of england of old claimed , in the estates of jews , dying comorant here , and how the same at this day stands . x. of persons born in places annexed , or claimed by the crown of england how esteemed by the laws of the same . xi . of denization , and what operation it hath according to the laws of england . xii . where an alien is capable of dower by the laws of england , and where not , and of the total incapacity of a jew . xiii . whether a denizon is capable of the creation , and retention of honour , by the laws of england . i. the father and the mother are the fountain of the blood natural , and as it is that that makes their issue , sons , or daughters , so it is that that makes them brothers and sisters ; but it is the civil qualifications of the blood that makes them inheritable one to the other , and capable of enjoying the immunities and priviledges of the kingdom ; but that is from another fountain , viz. the law of the land , which finding them legitimate , doth transplant them into the civil rights of the land , by an act called naturalization ; which does superinduce and cloath that natural consanguinity with a civil hereditary quality , whereby they are enabled not only to inherit each other , but also to enjoy all the immunities and priviledges that meer natural born subjects may , or can challenge . ii. according to the laws of normandy the prince might naturalize ; but such naturalization could not divest the descent already vested . but according to our law by no way but by act of parliament , and that cures the defect as if they had been born in england , and no man shall be received against an act of parliament to say the contrary . therefore if the father an alien has issue a son born here , and then the son is naturalized , the son shall inherit . if the father a natural born subject has issue an alien who is naturalized , the father dyes , the son shall inherit . iii. naturalization does remove all that disability and incapacity , which is in aliens in respect of themselves , and so puts them entyrely in the condition as if they had been born in england . the relative terms , as if born in england , is generally used to supply the personal defect of the parties naturalized , arising from their birth out of england , and therefore shall never be carryed to a collateral purpose , nor cures a disease of another nature , as half blood , illegitimation and the like ; but all diseases , whether in the parties themselves , or resulting from the ancestor , it cures . acts of parliament of this nature may be so pen'd , as to cure defects in the father or ancestor , or in the parties themselves . if restitution in blood be granted to the son by act of parliament , this cures that disability that resulted from the fathers attainder , and that not only to the son , but also to the collateral heirs of the father ; the true reason of this is , because the corruption of the blood by the attainder is only of the blood of the father , for the sons blood or coliateral heir was not at all corrupted ; for the scope of the act is taking notice of the fathers attainder , does intentionally provide against , and remove it , for otherwise the same had been useless . but in naturalization without express words , it takes no notice of the defects in the father or other ancestor , no●… amoves them . and therefore such acts of parliament as take no other notice but of the person naturalized's forreign birth , the same cures not any disability of transmission hereditary between the father , brother , or any other ancestor , resulting from the disability of them without actually naming of them : as for instance , the father an alien the son naturalized by act of parliament , the father or any other ancestor an alien purchases lands and dyes , the son shall not take by reason of the disability in the father , but there may be words inserted in the act that may take away the impediment . iv. those that are born in ireland , and those that are born in scotland are all alike , for their birth are within the kings dominions , and they are born under the like subjection and obedience to the king , and have the like band of allegeance ad fidem regis ; yet if a spaniard comes into ireland , and by the parliament is there naturalized , though perhaps this may qualifie and cloath him with the title of a natural born subject of ireland , yet it has been conceived that it will not make him a natural born subject of england . for the union of ireland to that of england ; is different from that of scotland ; for the first is dependant , as a kingdom conquered , the latter independant : though henry the ii. after his conquest of that nation , did remit over from england the ancient modus tenendi parliamentum , enabling them to hold parliaments , which after was confirmed by king john ; yet that was by no other sorce then bare letters patents . now when a nation is once conquered , there remains no law , but that of the conqueror ; and though he may incorporate such conquered nations with his own , and grant unto them their ancient parliamentary wayes of making of laws ; yet the conqueror can no wayes grant unto them a power , by vertue of such grant or confirmation , as to impose upon his own countrey , for he himself before such conquest , could not make a natural born subject without act of parliament , and most certainly his conquest adds nothing to his power , though it does increase his dominion . v. again kingdoms that are absolute under one prince , ad fidem regis , there the acts of each other are reciprocate , and one naturalized by the parliament of scotland , is as naturalized in england , because scotland is a kingdom absolute ; but ireland is a kingdom dependant and subordinate to the parliament of england , for the parliament in england can make an act to bind ireland , but not e converso . now to be a native of ireland , is the same as to be born in ireland , but that is by the laws of ireland ; but to be born in ireland , and to be the same as to be born in england , must be by the laws of england : but there is no law that hath enabled them with such a power , as to naturalize further then their own laws extend ; but the law of ireland does not extend in england , therefore naturalization in ireland , operates only in ireland , because of the failer of power . vi. again , kingdoms that are conquered , the empire of the same may be acquired by the conqueror , only as it is in a king , or other governour , and then the conqueror only succeeds into his right , and no further * , or also as 't is in the people , in which case the conqueror hath empire , so as that he may dispose of it , or alienate it as the people themselves might ; for 't is one thing to enquire of the thing , another of the manner of holding of it , the which are applicable not only to corporal things , but incorporal also : for as a field is a thing possessed , so is a passage , an act , a way ; but these things some hold by a full right of property , others by a right of usufructuary , others by a temporary right . again by the will of the conqueror , the kingdom , or republique that is so conquered , may cease to be a kingdom , or common-wealth , either so that it may be an accession of another kingdom , or common-wealth , as the roman provinces , or that it may no wayes add here to any kingdom , or common-wealth , as if a king waging war at his own charge , so conquer and subject a people to himself , that he will have them governed , not for the profit of the people chiefly , but of the governour , which is a property of that we call heril empire , not of civil ; for government is either for the profit of the governour , or for the utility of the governed , this hath place among free-men , that among masters and and servants . the people then that are kept under such command , will be alwayes for the future not a common-wealth , but a great family ; hence it is that we may plainly understand , what kind of empire is that which is mixt of civil and heril , that is , where servitude is mixt , and mingled with some personal liberty : for if the people are deprived of armes , commanded to have no iron , for agriculture , to change their language , and course of life , and abstain from the use of many of their customes , to be confined † to their own houses , castles , or plantations , not wander abroad to be governed by such laws as the conqueror should transmit to them * , all which are the tokens of a nation by conquest made subordinate to the conqueror , and are part heril , and part civil , and though they may remain a kingdom , and absolute within themselves as to the making of laws , to the obliging each other , yet they can no wayes impose on their conqueror , for though that be true which in quintilian , is alledged , on the behalf of the thebanes , that that only is the conquerors which he holds himself , but an incorporeal right can not be holden , and the condition of an heir , and of a conqueror is different , because the right passeth to the former by the descent , but only the thing by the last by virtue of the conquest . but certainly that is no objection , for he that is master of the persons , is also master of the things , and of all right which does belong to the persons , for he that is possessed , dot●… not possesse for himself , nor hath he any thing in his power who hath not himself , and so it is , if he leaves the right of a kingdom to a conquered people , he may take to himself some things which were the kingdoms , for it is at his pleasure to appoint , what measure he will to his own favour ; from hence it is we may observe what fort of empire that kingdom is at this day . vii . now ireland before the same became united to the crown by the conquest of henry the ii. the natives were meer aliens , and out of the protection of the laws of this realm ; yet when once they became a conquered people , and subject to the crown of england , and united ad fidem regis there did arise their allegeance , but that union neither made them capable of the laws of england , nor of their own , till such time as the conqueror had so declared them ; now what do they desire in order to revive their government ? first , they humbly beg of king henry ii. that since he was pleased that they should remain as a distinct dominion , that their ancient customes , or usages should not continue ; that he would be pleased to ordain , that such laws as he had in england * should be of force , and observed in ireland ; pursuant to which he grants them power to hold assemblies by the three estates of the realm , and that they should be regulated according to the institution , and manner of the parliaments in england , should have the benefit of magna charta , and other the great laws of england , and by such means puts them into a method of governing themselves , according to the known wayes of england , and to make such laws as should bind among themselves ; and by following the example of those of england , their judgment might be supervized , and corrected according to the justice , and laws of england , by writs of error , appeal , and the like . now here is no continuing , or reviving their ancient government , but the introducing a new one , part civil , and part heril ; nor indeed had they before any such thing as a parliament there , or general assembly of the three estates ; for when henry the ii. went over , there were several kings or scepts , who had their several and distinct assemblies ; but when they submitted , this great assembly of estates which he constituted , was a collection out of all of them , for their future well government ; so that whatsoever modus of regiment , the conqueror declared it was no more then for the well governing of the place , and making such laws as were necessary , and proper amongst themselves : but for them to impose , by vertue of an act of naturalization , upon an absolute kingdom as england , without the consent of the three estates of the same , surely was never intended , much less effected , the case is both great and curious , therefore &c. viii . by the laws of france all persons not born under legeance of that king , are accounted aliens , and if they dye , the king is entitled to the estate , for all shall be seized into his exchequer or finances ; but if they make a will the prerogative is disappointed : yet that extends only to chattels personal , in which strangers passing through the same have greater immunities then aliens there resident , for travailers dying without will , the heirs or executors shall have benefit and possession of their estates . ix . the like priviledge the kings of england formerly claimed in the goods and estates of the jews after their death , if the heir sued not , and paid a fine to the king to enjoy them , as by this record appears . irratores super sacrum suum dicunt quod praedictum messuagium fuit quondam eliae le bland , qui &c. diem claufit extremum , & quia mos est judaeismi quod dominus reg : omnia , & cattalla judaei mortui de jure dare poterit cui voluerit , nisi propinquer haeres ejusdem judaei finem , feceret pro eisdem dicunt quod dominus rex dictum , messuagium dare poterit cui voluerit , sine injuria alicui facienda , si ita quod sit haeres dicti eliae finem non fecerit , pro catallis ejusdem eliae habendis , &c. but whether the same is now used , may seem doubtful for the goods of aliens escheat not at this day to the crown , but administration shall be committed to the next of kin. x. by the laws of france , flanders , milan , and the french county of savoy , though possessed by several other princes , yet the natives of the same partake in the immunities with the natural born subjects of france , and if they dye without will , their heirs claim their estates ; the reason given , because , say they , those countreys were never alienated from them , but were alwayes annexed to the crown of france , who acknowledges them to be their subjects to this day . but in england it is otherwise , for those that are born in gascoin , normandy , acquitain , and those other territories which were formerly the possessions of the crown of england , in which if any had been born when subject to the same , they would have been natural born subjects , yet now are esteemed aliens ; and so was the case vouched by shard , of a norman , who had robbed together with other english , divers of his majesties subjects in the narrow seas , being taken and arraigned , the norman was found guilty only of fellony , and the rest of treason ; for that normandy being lost by king john was out of the allegiance of ed. . and the norman was accounted as an alien . xi . in france the kings may there denizize , so likewise here in england ; but with this difference , the letters of denization by those of france remove the totall disability , and incapacity of the alien . but in england the charter of donasion , or denization , is but a temporary , partial , and imperfect amotion of the disability of an alien , for though it puts the person indenizen'd as to some purposes , in the condition of a subject , and enables a transmission hereditary to his children , born after the denization , yet it does not wholly remove the disease , or non-ability , as to the points of descent or hereditary transmission , and resembles a person in case of an attainder ; and therefore if he purchases lands , and dyes without issue , the lord by escheat shall have the lands . and therefore in lineal descents , if there be a grand-father natural born subject , father an alien , son natural subject , the father is made denizon , he shall not inherit the grand-father ; and if the father dyes in the life of the grand-father , the grand-child , ( though born after the denization , ) shall not inherit the grand-father , for the denization does not remove , neither the personal , nor the consequential impediment , or incapacity of the father . so likewise in collateral descents ; as for instance , the father a natural born subject , has issue two sons aliens , who are both made denizens , and one dyes , the other shall not inherit him . xii . the like law in dower , a man seized of lands in fee , and takes an alien to wife , and then dyes , the wife shall not be endowed : but if the king takes an alien to wife , and dyes , his widdow queen shall be endowed by the law of the crown . edmund , brother of king edward the i. married the queen of navarre , and dyed , and it was resolved by all the judges , that she should be endowed of the third part of all the lands , whereof her husband was seized in fee. a jew born in england , takes to wife a jew born also in england , the husband is converted to the christian faith , purchaseth lands , and enfeoffeth another , and dyeth , the wife brought a writ of dower , and was barred of her dower , quia vero contra justitiam est quod ipsa dotem petat , vel habeat de temento quod fuit viri sui ex quo in conversione sua noluit cum eo adhaerere , & cum eo convert . if an alien be a disseisor , and obtains letters of denization , and then the disseisor release unto him , the king shall not have the land ; for the release hath altered the estate , and it is as it were a new purchase , otherwise it is as if the alien had been the feo ffee of the deseissee . and though aliens are enabled by charter of denization , to a transmission hereditary to their posterity of lands ; yet a denizon is not capable of honour , nor a transmission of the same , without naturalization by parliament ; for by the charter of denization he is made , quasi seu tanquam ligens , but to be a member of parliament , he must be ligens revera , & non quasi , for by his becoming a noble-man , he claims the place of judicature in parliament , the which he cannot till naturalized by act of parliament , and then he may claim as eligible to the same , or any other . chap. iv. of aliens and crials per meditatem , where allowed , and where not . i. of the manner of aliens obtaining trials per medietatem , at the common-law , and of the antiquity of the same . ii. of the making the same a law universal within this realm , as to some persons , afterwards general , as to all . iii. of the writ , and some observations on the summons of such an inquest . iv. of the opportunity lost , or gained by praying this immunity . v. of the awarding of tales upon request on such enquiries . vi. where this immunity does not extend in aliens , and where it does in matters civil , and criminal . vii . of the validity of a witness alien , and of an infidel . viii . the tittle of a renegadoe . ix . of the benefit of the kings pardon , whether it extends to an alien whose abode is here , but happens to be absent at the time of the promulging . i. triatio bilinguis , or per medietatem linguae , by the common-law was wont to be obtained by grant of the king , made to any company of strangers , as to the society of lumbards , or almaignes , or to any other corporation , or company ; when any of them were impleaded , the moyety of the enquest should be of their own tongue ; this trial per medietatem in england is of great antiquity , for in some cases trials per medietatem was before the conquest , viri duodeni jure consulti , sex walliae totidem anglis , & wallis jus dicanto , and as the commentator observes , it was called duodecem virale judicium . ii. this immunity afterwards being found commodious to us islanders , became universal ; for by the statute of . e. . cap. . it was enacted that in pleas before the major of the staple , if both parties were strangers , the trial should be by strangers ; but if one party was a stranger , and the other a denizon , then the trial should be per medietatem linguae : but this statute extended but to a narrow compass , viz. only where both parties were merchants , or ministers of the staple , and pleas before the major of the staple : but afterwards in the th . year of the same kings reign it was enacted , that all manner of enquests , which was to be taken , or made amongst aliens , and denizons , be they merchants , or others , as well before the maior of the staple , as before any other justices or ministers ; although the king be party , the one half of the enquest , or proof shall be denizens , the other half aliens , if so many aliens , and forreigners be in the town , or place where such enquest , or proof is to be taken that be not parties , nor with the parties in contract , in plea , or other quarrel , whereof such enquest , or proof ought to be taken ; and if there be not so many aliens , then shall there be put in such enquests , or proofs as many aliens as shall be found in the same town , or places , which be not thereto parties , as aforesaid is said ; and the remnant of denizens , which be good men , and not suspicious to the one party or other . by which statute the same custom or immunity , was made a law universal , although it be in the case of the king , for the alien shall have his trial per medietatem . it matters not whether the moyety of aliens be of the same country , as the alien party to the action is ; for he may be a dutch-man , and they spaniards , french , walloons , &c. because the statute speaks generally of aliens . iii. the form of the venire facias in this case is , de nicenet , &c. quorum una medietas fit de indigenis , & altera medietas fit de aliegenis natis , &c. and the sheriff ought to return twelve aliens , and twelve deniz●…ns , one by the other , with addition which of them are aliens , and so they are to be sworn ; but if this order be not observed , it is holpen as a misreturn . it has been conceived of some , that it is not proper to call it a trial per medietatem linguae , because any alien of any tongue may serve ; but that surely is no objection , for people are distinguished by their language , and medietas linguae is as much as to say half english , and half of another tongue , or nation whatsoever , nor matters it of what sufficiency the jurors are , for the form of the venire facias shall not be altered , but the clause of quorum quolibet habeat , . &c. shall be in . if both parties are aliens then the inquest shall be all english , for though the english may be supposed to favour themselves more then strangers , yet when both parties are aliens , it will be presumed they will favour both alike , without any difference . iv. if an alien is party , who slips his opportunity , and suffers a trial by all english , the same is not a verdict erroneous ; for if he will be so negligent as to slip that advantage which the law gives him , it is his fault ; for the alien if he will have the benefit of that law , he must then pray a venire facias per meditatem linguae , at the time of the awarding the venire facias : but if a neglect of that opportunity happens , yet if he prays it after the awarding a general venire facias , the same may be retreeved so as it be before the venire be returned , and filed , for then he may have a venire facias de novo , or otherwise he cannot , nor can he afterwards challenge the array for this cause , if it falls out the juries are all denizens ; though sandford seems to be of a contrary opinion , for the alien must pray it at his peril . v. if there be a general venire facias , the defendant cannot pray a decem tales , &c. per medietatem linguae upon this , because the tales ought to pursue the venire facias : but if the venire facias be per medietatem linguae , the tales ought to be per medietatem linguae , as if five aliens , and five denizens appear on the principal jury , the plaintif may have a tales per medietatem ; but if the tales be general de circumstantibus , it hath been held good enough , for there being no exception taken by the defendant upon the awarding thereof , it shall be intended well awarded . if an alien that lives here under the protection of the king of england , and amity being between both kings , commits treason , he shall by force of the act of . and . ph. and mary , be tryed according to the due course of the common law , and shall not in that case be tryed per medietatem linguae . but in case of petit treason , murder , fellony , &c. if he prays his trial per medietatem linguae , the court ought to grant it . yet if an information be exhibited against an alien , the trial is not per medietatem , but according to the common-law . if an alien in league brings an action ( if there be cause ) the defendant may plead in abatement ; but if it be an alien enemy he may conclude in the action . in an action for words the defendant pleaded not guilty , and said he was an alien born , and prayed trial per medietatem linguae , which was granted , and at the nisi prius in london ; but six english-men , and five aliens appeared , and the plaintif prayed a tales de circumstantibus per medietatem linguae , and it was granted , so there wanted one alien , and the record was : ideo alius aliegena de circumstantibus per vic' london , ad requisitionem infra nominati julii caesaris , per mandato justiciarum de novo apposito , cujus nomen panelo praedict ' affilatur secundum formam statuti , in hujusmodi casu nuper editi & provise , qui quidem jurato sic de novo appositus , viz. christianus dethick alienigena exactus venit ac in juratam , illam simul cum aliis juratoribus praedicta prius impanellatis , & juratis juratus fuit , &c. it was found for the plaintiff , and afterwards moved in arrest of judgment , that no tales was to be granted de circumstantibus , when the trial is per medietatem linguae , by the justices of nisi prius , by the act of h. . because in the act it is spoken of free-hold of jurors , and an alien is not properly said of any countrey , or to have any free-hold ; but it was adjudged because the statute was made for speedy execution , that it should be expounded favorably , according to the intent , and meaning of the makers of the act ; and though in this case the tales was prayed by the plaintiff , where it ought to have been ad requisitionem defendentis , yet that should be taken to be but a misprision , and would be amended . vi. if the plaintiff or defendant be executor or administrator , though he be an alien , yet the trial shall be by english , because he sueth in auter droit ; but if it be averred that the testator or intestate was an alien , then it shall be per medietatem linguae . shely a french man who joyned with stafford in the rebellion , in the taking of scarborough castle in the county of york , he being taken was arraigned in the kings bench upon an indictment of treason , and the indictment was contra legiantiam suam debitam ; and the indictment was rul'd to be good , although he was no subject , because it was in the time of peace between the queen , and the french king. but if it had been in the time of war , then the party should not have been indicted , but ransomed ; it was likewise rul'd there , that the trial was good , although the venire facias awarded in york was general , and not de medietatem linguae ; for such trial per medietatem linguae does not extend to treasons , . ma. dyer . the indictment ought to omit the words , naturalem dominam suam , and begin that he intended treason contra dominam reginam , &c. hill . eliz. in b. r. stephano ferraro d'games case in dr. lopez treason . if an alien enemy come into this realm , and be taken in war , he cannot be indicted of treason , for the indictment cannot conclude contra legianeiae suae debitum , for he never was in the protection of the king ; and therefore he shall suffer death by marshal law , and so it was rul'd in h . in perkin warbecks case , who being an alien born in flanders , feigned himself to be one of the sons of king edward the th . and invaded the realm , with intent to take upon him the dignity ; who had his judgment and trial by martial law , and not by the common-law of england . vii . the kingdom of ireland was a dominion separated , and divided from england at the first , and came to the crown of england by conquest , in the time of henry the second ; and the meer irish were as aliens , enemies to to the crown of england , and were disabled to bring any action , and were out of the protection of the laws of this realm ; and five scepts of the irish nation were only enabled to the laws of england , viz. oneil de ultonia , o molloghlin de media , o connoghor de connacia , o brian de tholmonio , and ma murogh de lagenia , as appears by the records of the dominion of ireland , and several grants have been made to the irish , which proves them to be meer aliens . but afterwards , though the same was a separate and divided kingdom , yet whilst they were under the subjection and obedience of the kings of england , if high treason had been committed by an irish man , he might be arraigned , indicted , and tried for the same within england , and by the laws of england ; and so it was resolved by all the judges of england in orucks case , eliz. and also in sir john perrots case , that ireland was out of england , and yet that all treasons committed there , were to be tryed in england , and that by virtute of the statute of h. . cap. . arthur crohagan an irish-man , was arraigned , for that he being the kings subject , at lisbon in spain used these words , i will kill the king ( inuendo dominum carolum regem angliae ) if i may come unto him , because he is a heretick ; that afterwards he came into england , and was taken , and tried by a jury of middlesex , and was found guilty ; and it was held high treason by the course of the common law , for his traiterous intent , and imagination of his heart is declared by these words , and within the statute e. . he confessed he was a dominican fryar , and priest in spain . bracton sayes , that an alien born cannot be a witness ; but that is to be understood of an alien infidel , for the bishop of rosse , being an alien born ( a scot ) was admitted to be a witness , and sworn . yet an infidel may bring an action against another merchant , or any other however * , and that without controversie . the testimony of a renegadoe is not to be received at this day , by the laws of any christian kingdom , or republique ; he that hath once renounced his faith can never be believed , therefore he cannot be a witness ; and so it was rul'd where one domingeo de la cardre , a renegado , who was sworn , and gave evidence ; afterwards a new trial being granted , his testimony was rejected , and he not suffered to be sworn , it being at his trial proved , that he was a spaniard , and a christian by birth and education , and after became a jew . if an alien be resident , and commits an offence , he shall have the benefit of the kings general pardon ; but if he is not in the kingdom at the time of the pardon promulgated , then he looses the benefit of the same ; for he is no otherwise a subject , but by his residence here . chap. v. of planters . i. of possession , and its original right . ii. of vacancies natural , which gives a right to planters . iii. of civil vacancies , how far the same may be possessed . iv. of planters , whether they have a firm right , so as to dispose by will , or only a usufructuary possession . v. of planters , wanting things necessary for the support of humane life , generally considered according to the laws of nature . vi. wherefore one man may naturally have more then another , and what conditions are annexed to such fortunes , for those that are in necessity . vii . whence it is that there was at the beginning , and is still a tacite condition of reassuming our original rights , in case of extream or natural necessity for natural community . viii . of necessity considered in a christian community . ix . of the primitive communion , considered in reference to its restrictions , and limitations . x. of those things that are dedicated to god , and holy use , whether subject to the relief o our necessities . i. having in the first chapter of this book discoursed , of the original of property deducing its inception , to that which we call possession , or meum , and how the same may be altered by war ; it may not seem unnecessary to discourse of the acquiring of property , in the new discoveries of those vast immensities of america , which being prepossess'd , seem to deny us legally that title which we pretend to . possession by law , is esteemed the highest title that men can pretend to what they enjoy , which is nothing else but positio pedis ; as if the ancients had no other seal to confirm their tenures , but the prints of their feet ; and good reason , seeing the mind is not able to take up a place so well as the body ; for many mens wills may concur in ( wishing and liking ) the same thing , but many bodies cannot concur to the possessing it : besides the mind cannot set an outward mark on what it likes , that thereby others might be warned to abstain from it , all which the body properly doth . abrahàm and lot going to plant , declared no more then 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 possess what they would to themselves . ii. this vacancy , which gives us a right to plant , is to be considered in two respects , . natural ; . civil , the first is in things which may be possess'd , but actually are not , neither in property , nor use ; such a vacancy which is nullius in bonis , might be occupied by switzers , who as caesar sayeth , would fain have changed their rough hills for some nearer campania ; and deserts or places un-inhabited , may be possess'd and appropriated to the first planter , and that without all controversie , but especially by those who being expulsed from their own seats or estate , seek entertainment abroad : the ansebarians in tacitus , cry out , as the heaven to the gods , so is the earth granted to mortals , and what is void is publique : looking up to the sun and stars , they did openly as it were enquire of them , whether they were pleased in beholding any ground empty , and without inhabitants , they should rather cast forth the sea , and overwhelm the spoilers of the earth . iii. civil vacancy , is where it is not absolutely incorporated , as among the roving arabians and moores in barbary , and other affricans and americans , who possess one place to day , and another to morrow ; these by their frequent returns , shew that they abondon not the places they remove from , as derelicta quae quis in bonis amplius numerare non vult ; we can not say , that their natural , or voluptary interest in them is no way improved ; for grotius seems to be of opinion * , that if there be some desert or barren ground , the same ought to be granted to strangers upon their request , and , says he , it is also rightly seized on by them , giving this reason , for that lands ought not to be esteemed occupied which is not cultivated ; but only as to the empire , which remains entire to the first people , they do no offence who inhabite , and manure a part of the land that lyes neglected * , but we must press this argument of grotius very tenderly , least by the same reason others conclude , that those estates which are not competently improved , are derelict and occupiable by others , which would introduce perpetual confusions , and easily perswade every man that he could husband his neighbours lands better then himself : however this is a clear case for all planters , that those wastes , or asperi montes , which the natives make no use of , nor can receive any dammage by their being possess'd by others , may lawfully be impropriated by them . iv. but admitting that planters may appropriate a plantation for their living , whether such may dispose of the same by will ( we supposing the possessor having no heir ) for that he might seem to have but a usufructuary possession , till a descent had been cast , which then perhaps may turn the same into a right * : without all controversie the very immediate possessing , and planting creates a right against all , but he that hath empire there , and that very right the party in his life time might have actually transferred over to another : now though the devise in the will operates not till after his death , yet the gift is made during his life ; according as the french have it , se despouiller avant que de s'en aller coucher , that is , man first puts off his cloaths , and then goes to bed . v. again persons having arrived in those territories , and planted , but before they have reapt the fruits of their labour , necessity is found within their huts , and a supply of things for the support of humane life is wanting , whether such may seek the means of subsistance , by the laws of nature , and in case of refusal ( after request ) force them from their neighbour planter ? surely that which is necessary for any natural subsistance , and necessary to another , belongs justly to me , unless i have merited to loose the life , which i seek to preserve . there were a defect in gods creating our natures such as they are , if he did not provide means to uphold their beings , according to the natural faculties which he hath given them . a good mother divides her bread among her children , as a morsel may come to each ; let us therefore judge this case by those rules of justice , by which we judge other eases , if a father in his will pass by a child or names him , but upon false causes leaves him nothing , he is notwithstanding by the equity of the civil law admitted to a childs part , a legitima , and may form his action contra testamentum inofficiosum : men are all a ki●… , and we derive one from another , and to let others settle in our places , who may justly expect as much due to them , for their natural subsistance , as was to those who before went out of the world , to make place for them , yea though they assign them nothing at their departure . man were of all living creatures most miserable , if he might not during this life have that measure , which god would not have an ox defrauded of ; thus hath every dung-hill-fly a right to live , and to remain insectile , which besides existence hath sence , and may not justly be deprived of that its chiefest felicity , unless it be importunate to a nobler creature . vi. 't is very true that no man can pretend to share in the sweat of another mans browes , or that the pains , and wasting of another mans life should be for the maintenance of any , but his own ; nay though it be granted , that those neighbour planters ; who being settled before us , and having acquired either by industry , or lawful donation the fruits of other mens labours , and consequently must enjoy more plenty then a new comer or planter ; yet all that they possess is not properly theirs , for if another by extream necessity be perishing , and they have above what they can consume in a natural way , then they have no fuller a property in that plenty then stewards have , and for this regard they are so called in scripture : the earth still is the lords , and the fulness of it , it is his for he made it of his own matter , and for the fashion of it used not our aid●… ; yea , 't is his sun which still produces , and his clouds which drop fatness : we can only pretend the contribution of a little pains , for that which is our natural share ; so that in plain reason we may not expect to be , otherwise qualified then stewards , for all that which is not probably necessary for our own subsistance , or for theirs , who subsist only by us : wherefore lazarus ready to perish ( not by fault , but by misfortune ) had taken dives his crums , contrary to his will ; yet he had not sinned , no more then he who takes something which the lord or master hath given him , though the steward contradict it : but if it so happen , that both the planters are in pari necessitate , then melior est conditio possidentis ; or as saint paul's words are , when he excited the churches charity , and alms , for the relief of the distressed members of christ , not ( quoth he ) that ye should be streightened , and they abound . vii . the will of those who first consented mutually , to divide the earth into particular possessions , was certainly such as receded as little as might be from natural equity ; for written laws are as near as possible may be , to be interpreted by that , and therefore in cases of such extremities we are not without examples , of taking the goods of one to supply the necessities of many ; and therefore at sea , if provisions begin to fail in a ship , every one may be forced to bring out openly , what he laid in for his passage in particular ; so a ship at sea , having instress of weather , spent her sails , cordage , and anchors , meeting other vessels at sea , may take a supply of such as shall be wanting ; but yet governed according to st. paul's words , so that such taking straightens not the other ship. so when the sea breaks in upon a countrey , we may digg in the next mans grounds to make a banck , without staying for the owners permission ; yea tear down any mans hedge , or fence , when the common passage is stopped : for in such cases of necessity humane laws ( as is mentioned afore ) do not so much permit as expound their natural equity , and that which men give to those , who are so innocently distressed , who borrow life only from the shadows of death , et pist asse tempestate tuentur , is not properly a charity to them as a duty ; and if he be a christian that gives , perhaps he doth more charity to himself then to the receiver . viii . the reason of this christian charity , or communion , is as far above the natural , as christ himself was above nature , this requires an equal beating of all pulses , that as fellow-members we have a homogenial sence , and palpitation ; we are to divide a cruze of oil , and a few handfuls of meal , with one of christs flock , with an abandoned creature ; and what can be in more extremity than a poor planter , in a strange place , destitute for the present of the supports of humane life ? and surely the violation of this jus charitatis , is no less then theft , in those who having extended fortunes , never defalcate a gibeonites crust perhaps for a wandring angel , these steal even the ship-wrack'd mans picture from him , which as his whole inheritance he carried at his back , to move compassion , and by the insatiable sea of their avarice , and luxury , they wreck him over at land. ix . but this free primitive communion had , and hath its bounds , and its quantum in contributions , as well as the natural , otherwise it might be fraudulent , and thieving : for they who possess but a little , would contribute it all , on purpose to share equally with those who possess very much , which would introduce a visible decay , and ruin in all ; as tiberius rightly observed * , on m. hortalus his petitioning an alms for augustus caesar's sake , idleness would encrease , and industry languish , if men should entertain no hope , nor fear for themselves , but securely expect other mens relief , idle to themselves , and burthensom to us . wherefore in the midst of that primitive communion , we find that the apostles went domatim , from house to house breaking of bread , therefore they even then retained by their houses in property ; which property is supposed by the eighth commandment , as well as it is by christian charity : for no man can steal , but by invading the right of another ; and as for charity , it is necessary he have something 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 , then by some publique collectors , for charity is hated most with the sence of its own action . moreover under the law , jews were commanded , to love one another as themselves ; yet this command took not away property then , therefore it takes it not away now ; notwithstanding we own the use , or usufruct of our properties to the distressed , though our selves be at the same time in distress ; just as we are commanded , by the peril of our own lives , to endeavour to secure our neighbours life , which is yet a charity more transcendent then the other , by how much life is above livelyhood ? and though the various laws of countreys , have variously provided punishment , for those who out of meer necessity take something out of anothers plenty ; yet that proves not the act to be sin , or repugnant to equity , or conscience , but rather repugnant to the conveniency of that kingdom , or republique , where the act is committed ; and the true reason of the same is , least thereby a gap might be laid upon to libertinism ; besides reason of state , we know , considers not vertue , so much as publick quiet , and conveniency , or that right which is ad alterum . x. we will now consider those things which are gods , which yet are not his in such a strict rigorous sence , but that they lye open to the exceptions of our just necessities , hence that which is devoted as a sacrifice to him , in case of necessity may be made our dinner , witness the action of david : wherefore the consequence of our saviours answer was very strong , when he defended his pulling the eares of corn in anothers field : that if it was lawful for david , in his necessity to eat that bread , which was provided for the table of god , then how much more was it lawful for him , and his apostles in their necessities , to take a refreshing out of that which belonged to man : by the canon law , if no other means can be found , the vessels of the altar may be sold , to redeem those souls , who are enthralled in misery , and captivity ; and is there not good reason for it , seeing they serve but for the souls of men , and therefore the souls of men are more precious then they ? yea the sacrifice it self , to what end is it , but to obtain a state of piety for us ? upon what hath been said , it may not seem an injury , if a planter ( wanting those things for the support of humane life ) requesting a reasonable proportion of his neighbour ( having it to spare ) with an intention to repay ; if denyed , by force take the same from him , for that reason which creates a punishment in a settled common-wealth for the like actions , does in such places fail . chap. vi. of merchants . i. merchandizing , the same is honourable , and proffitable , both to prince , and state ii. the advantages that might accrue to kingdoms , i●… the more nobler , and richer sort applyed themselves to the same . iii of the first institution of the company of adventurers . iv. of the ●…stitution of that in england to the indies . v. of the forming of that in holland , to these parts . vi. of the forming the like by the most christian king , to the same parts . vii . of the advantages , and disadvantages , considered as in reference to reducing them to companies . viii . how merchants in england were provided for of old . ix . of their immunities settled by magna charta . x. of merchants strangers , whose prince is in war with the crown of england , how to be used in time of war , and the reasons why merchants strangers ought to be used fairly . xi . goods brought in by them , the moneys raised how to be disposed , according to the statute of imployment . xii . merchant strangers , made denizons by parliaments , or letters patents , to pay as before they were so made . xiii . what things requisite , that makes a competent merchant , according to law. xiv . one merchant may have an account against his partner , and if he dyes , no survivorship to be of the estate belonging , or acquired in their traffique . xv. of their immunities , which they claim by the custom of merchants , in reference to exchange . xvi . all subjects are restrained to depart the realm , but merchants . xvii . prohibitory laws bind forraigners , according to the leagues of nations . xviii . the necessity , and advantage that is incumbent on merchants , to preserve their marks . i. there are certain affairs which should be left to 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 most profitablest in an estate , and to the which they should attribute more honour , then some do here at this day . for if in all estates they have thought it fitting , to invite the subjects by honour to the most painful , and dangerous actions , the which might be profitable to the publick ; this being of that quality , they should attribute more honours to those that deal in it : and if nobility hath taken its foundation from the courage of men , and from their valour , there is certainly no vocation ; in the which there is so much required as in this ; they are not only to encounter , and strive amongst men , but sometimes against the four elements together ; which is the strongest proof that can be of the resolution of man : this hath been the occasion , that some have been of opinion , that they should open this door to merchants , to attain to nobility , so as the father , and son hath continued in the same trade , and to suffer noble men , who are commonly the richest in an estate , to practise themselves ( without prejudice to their condition ) in this of commerce ; the which would be more honourable unto them then to be usurers , and bankers , as in italy , or to impoverish themselves , in doing nothing but spend , and make consumption of their fortunes , and never gathering , or laying up . ii. hence will grow many advantages , both to the publique , and private ; to the publique , for that they that should deal in commerce , having means , courage , and sufficiency for this conduct , it would be far greater in the furnishing more ships to sea , and better armed , the which the estate at need might make use 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 dammage offered to such , would require satisfaction with a strong , and powerful hand ; the which they cannot do , who being poor , and having but small stocks , or what they borrow from banckers , or are indebted for the cargoe which they send forth , have not the courage to hazard themselves , and their all in an enterprize that is great : besides such who have honour , riches , and courage , would keep up the reputation of their several commodities , by the not lessening the market , the which the poorer sort , to pay customes , freight , bills of exchange , and other contingent , and necessary charges , which accompanies the importing , they are often forced to mortgage the cargoe to the bankers , at excessive usury , or else to sell for ready money , for an inconsiderable gain , nay some rather then their wants to be known , for ready money will sell for loss ; all which would be prevented , if such persons of value would apply themselves , to a prudent management of the same ; for whatsoever hazard they run , there would be more gotten by such in . voyages , then the smaller sort in three , or four voyages , and by that means it would be the occasion of preventing of many expenses , or importuning their prince with demands ; nay perhaps , they might get more at sea in one year , then in ten at court. besides experience hath taught , and doth daily manifest , that where the richest have dealt in this of commerce , it hath enriched both them , and the estate under which they lived ; and at this day the examples of the venetians , portugals , spaniards , and hollanders have made it known unto us . iii. the consideration of which , first gave light to that industruous nation the burgundians , to procure the association , or incorporation by john , duke of brabant , of that ancient company of the adventurers anno , which were then called the brotherhood of saint thomas becket of canterbury ; which being afterwards translated into england , was by edward the iii. confirmed , and by his successors henry the iv. henry v. ed. iv. henry vi. richard iii. and king henry the seventh , who gave them the name of merchant adventurers , and from him successively hath their charter been confirmed down , to his sacred majesty that now is ; and as this society is of ancient estimation , so is their government very commendable . iv. the society of the company , trading to the east-indies , differ from others , both as in reference to persons , members which are at this day many of the principal nobility of engalnd , as also for that their adventurers run all into many stocks , and is governed , and carried all jointly upon benefit , and loss , they were incorporate anno . and since then they surrendred their charter , and accepted a new one ; and are incorporated by the name of governour , and company trading to the east-indies ; their adventurers run all into one stock , and is governed , and carried on upon benefit , and loss ; the same being at this day , according to the subscriptions , about four hundred thousand pounds , which the several persons subscribers may sell , transfer , and dispose of ; but they can no wayes take out the same : the great stock may be encreased , if the company shall see occasion so to permit ; but they are very cautious of the same , for that the greater the dividends , the more reputation the stock bears , which above all things is to be maintained ; however directly upon his own account , no person can have above ten thousand pounds stock there , nor can he have a compleat title , till he is made a free-man of that society ; their returns are very profitable , and of late very rich , and have wany places of great importance in india , as meslopotam on the coast of cormondel , bombay , suratt , fort st. george , bantam , &c. v. the dutch having found relief in their distress , from the british shoar , against their powerful enemy , found also a pattern to carry on commerce , they not being wanting in the imitating the incorporation of a company , trading to those places which they possess'd in the east-indies ; and therefore in the year . leave was granted from the estates , to traffique into those parts before all others , during the space of one and twenty years , the which was granted them , in consideration of five and twenty thousand florens , which they promised to pay to the estates during the first ten years ; thus reduced all into into one company , amsterdam had one moyety , midleburgh in zealand a fourth part , delph , rotterdam , horne , and enchusen had either of them a sixth part ; and the whole stock of this union amounted to six millions of livers , or six hundred thousand pound sterling . for the direction of this trade , and the interests of the associates , they have established , in either of those towns , a certain number of administrators , at amsterdam twenty , at midleburgh , twelve in either of the rest seven ; and if any one dyes , the chamber of the place names three , of which either the estates general , or the magistrate of the town chooseth one . those chambers choose seventeen among the administrators , that is to say , amsterdam eight , middleburgh four , delph and rotterdam two , horne and enchusen two , and the seventeen are chosen alternatively , sometimes at midleburgh , sometimes at north-holland , the which are called together to resolve jointly of how many ships , and of what equipage , and furniture they shall make the fleet , which they mean to send , and to what fort , or coast they should go : this assembly is held six years together at amsterdam , and afterwardr two years at midleburgh , and then again at amsterdam ; by the conditions of the accord , the ships must return to the same port from which they parted ; and the spices which are left at midleburgh , and other chambers , is distributed amongst them by the weight of amsterdam , and the chamber which hath sold her spices , may buy from other chambers . by this order they have hitherto continued this commerce with reputation , not as simple merchants only , but as if they were soveraigns , they have made in the names of the estates , alliances with many of the princes of those parts ; as with the kings of sian , quadoen , patam , johor , the heir of mataca , bornean , achin , sinnatra , baretan , jocotra , and other kings of jatta ; they have made themselves absolute masters of the island of amboina , but by what means ? — where they have a president , which governs in their name ; at banda they have a fort for a retreat ; where they must deliver them the spices at a certain price ; in trinate they have another a mile distant of that of the portugales ; at magniene they have three ; at motire one ; at gilele they have taken that which the portugales have built ; and indeed whatsoever either can , or may consist with their interest in those parts , they have engrossed , and by that means almost the trade of the whole spices of the east . vi. so likewise the most christian king , hath within few years established such another trading , to those eastern parts . and in england we have several others , as that of trading to turkey , that of affrica , to guiny , and several others , dividing the several trades according to the coasts , and places where they are appointed ; forbidding them to intrench , or incroach on each other , so likewise to all other his majesties subjects , on severe penalties . vii . now it is not the dividing of the trade into companies , that can answer the expectation , but it is the dividing the trade into companies , where the places may bear it ; as that to the indies , turkey , hambourough , and some others ; but to some others , as the canaries , france , or any of those places on this side the line , it has been conceived , the trade will not bear it , but the same would be better distributed , either into the trade of voluntary associations , or single traders ; others perhaps would result into monopolies , if incorporated ; however the standard rule is , to know whether the trade of the place will bear a company , or not . viii . merchants in england were alwayes favourably provided for , by the common law of this kingdom : by the ancient laws of king alfred it was provided , defer due fuit que nul merchant alien ne hanta●…t angleterre , forsque aur quater foires , ne que nul demeurast in la terre outer quarante iours : mercatorum navigia , vel inimicorum quidem quaecunque ex alto ( nullis jactata tempestatibus ) in portum aliquem invehentur tranquilla pace fruuntor , quin etiam si maris acta fluctibus , ad domicilium aliquod illustre , ac pacis beneficio donatum navis appulerit inimica , atque istuc nautae confugerint , ipsi & res illorum omnes angusta pace potiuntor . ix . again by the grand charter of our liberties , they are provided for in these words : omnes mercatores nisi publice antea prohibiti fuerint habeant salvum , & securum conductum , exire de anglia , & venire in angliam , & morari , & ire per angliam , tam per terram , quam per aquam , ad emendum , vel vendendum sine omnibus malis tolentis per antiquas , & rectas consuetudines praeterquam in tempore guerrae . et sint de terra contra nos guerrina , & tales inveniantur in terra nostra in principio guerrae , attachiantur sine damno corporum suorum , vel rerum , donec sciatur a nobis , vel a capitali justitiario nostro , quomodo mercatores terrae nostrae tractantur , qui nunc inveniantur in terra illa contra nos guerrina ; et si nostri salvi sint ibi alii salvi sint in terra nostra . . by which it is declared , that all merchant strangers might be publiquely prohibited to trade into this realm , be they in amity , or otherwise . . all merchant strangers in amity , except such as be so publiquely prohibited , shall have safe and sure conduct in seven things . . to depart out of england . . to come into . to tarry in . by water , and land to go in , and thorough . to buy , and sell ,   . without any manner of evils tolls .   . by old , and rightful customs .   x. but concerning such merchant strangers , whose prince is in war with the crown of england , if they are found within the realm , at the beginning of the war , they shall be attached with a priviledge , and limitation , i. e. without harm of body , or goods ; with this limitation , until it be known to the king , or his chief justice * , how merchants of england are used , and intreated in their countrey , and accordingly they shall be used in england , the same being jus beli. but for merchant strangers , that come into the realm after war begun , they may be dealt withal as open enemies : it being the pollicy of england ever to entertain merchant strangers fairly , in the . year of ed. . in the parliament roll it is contained thus : cives london pe●…unt , quod alienigenae mercatores expellantur a civitate , quia dicantur ad depauperationem civium , &c. — responsio . — rex intendit quod mercatores extranei sunt idonei , & utiles magnatibus , &c. & non habet concilium cos expellendi : however though great immunities were granted them , yet they alwayes found sureties , that they should not carry out the merchandize which they brought in . xi . and at this day , if they bring in any merchandize into the realm , and sell the same for moneys , they are to bestow the same upon other merchandizes of england , without carrying of any gold , or silver in coin , plate or mass out , on forfeiture ; the principal reason of this was as well to preserve , and keep the gold , and silver within the realm , as for the encrease of the manufactures ; and the same at this day extends as well to denizons , so made by letters patents , as strangers ; however he may use the same in payment , to the kings leige people , without * incurring the penalty of the statute of h. . but yet in strictness of law , ought not to receive † any gold in payment . xii . all merchant strangers that shall be made denizons , either by the kings letters patents , or by act of parliament , must pay for their merchandize like custom , and subsidy , as they ought , or should pay before they were made denizons . xiii . every one that buys and sells , is not from thence to be denominated a merchant ; but only he who trafiques in the way of commerce , by importation , or exportation ; or otherwise in the way of emption , vendition , barter , permutation , or exchange , and which makes it his living to buy and sell , and that by a continued assiduity , or frequent negotiation in the mystery of merchandizing : but those that buy goods , to reduce them by their own art or industry , into other forms then formerly they were of , are properly called artificers , not merchants : not but merchants may , and do alter commodities after they have bought them , for the more expedite sale of them , but that renders them nor arti●…rs , but the same is part of the mystery of m●…ts ; but per●…●…ying commodities , though the●… al●… not the form , yet if they are such as ●…ell the 〈◊〉 at ●…ure dayes of payment , for greater pri●… then 〈◊〉 〈◊〉 them , they are not properly called merchants , 〈◊〉 are 〈◊〉 , th●… they 〈◊〉 〈◊〉 other names , as ware-house keepers , and the like , but banckers , and such as deal by exchange , are properly called merchants . xiv . the wares , merchandizes , debts , or duties that merchants have as joint traders , or partners , shall not go to the survivor , but shall go to the executor of him that is deceased . if two joynt merchants occupy their stock , goods , and merchandize in common to their common profit , one of them naming of himself a merchant , shall have an account against the other naming him a merchant ; and shall charge him as receptor denariorum ipsius b. ex quacunque causa , & contractu ad communem utilitatem ipsorum a. & b. provenient sicut per legem mercatoriam rationabiliter monstrare poterit . xv. and as the law establishes security for their estates , so it gives them other immunities in their commerce ; for if one merchant draws a bill of exchange upon another , be it in-land , or out-land ( if it be by way of exchange ) the acceptance of the bill by the party , shall bind him to that party , to whose use the money in the bill is to be paid , and he may bring his action in his own name , per legem mercatoriam . and so it is if a third person , that is a stranger to the bill , shall accept the same for the honour of the drawer , it shall bind him as effectually , as if he upon whom the bill was drawn had accepted it ; and this by the custom of merchants . xvi . all other subjects are restrained to depart the realm , to live out of the realm , and out of the kings obedience , if the king so thinks fit ; but merchants are not , for they may depart , and the same is no contempt , they being excepted out of the statute of r. cap. . and by the common law , they might pass the seas without licence , though not to merchandize . xvii . it was once conceived , that those laws which were prohibitory against forraign goods , did not bind a merchant-stranger , but it was ruled otherwise : for in the leagues that are now established between nation and nation , the laws of either kingdom are excepted ; and therefore as the english in france , or in any other nation in amity , are subject to the laws of that countrey where they reside ; so must they of france , or of any other country be subject to the laws of england , when resident or here ; and therefore if a french man imports any points , laces , belts , hats , and the like , they are forfeited . xviii . the marking of goods is of a great consequence , as in relation to the settling the property of the merchandize in the right owner ; and in courts of justice , both the civil law , and the common law , hath a great respect to the same , therefore the use has been , that every particular merchant , hath his particular mark appropriated to him ; by which means , if the person is of any value considerable , as in relation to commerce , his mark is presently known . every merchant is to set down his mark upon his books of account , wherewith his commodities are marked ; so companies and societies have their particular mark : no merchant ought to use another mark , without leave first had of the party whose mark the same is ; for as flags are the ensigns , that give consusance of the nation whose ships they are , so marks are to ascertain the owners of their property , without confusion or damage : and though to set the mark of another man , alters not the property , yet it may work such a detriment as may be very mischievous ; and therefore by the common law of england , if j. s. shall maliciously set the mark of j. d. upon his goods , to the intent j. d. shall , or may be brought into any trouble , or put to any dammage or charge , an action of the case will against j. s. chap. vii . of factors . i. factors , their qualifications generally considered , as in refference to their employment . ii. of commissions , and the words in the same , that quallifies them in their employment . iii. of commissions to factors that limit their actions . iv. of a factor that deals for several merchants , of the obligations that oblige , and not oblige each other . v. of their power , considered as in refference to the dispensing with the debtors of their principals . vi. where the false entry , or unfaithfulness of the factor , subjects him to answer dammage to his principal ; and of the like committed by the principal , where to answer to the factor . vii . of goods remitted to factors , and lost in their possession , who bears the misfortune . viii . bills of exchange drawn on the factor by the principal●… , and accepted , but before day of payment the principal becomes bankrupt , whether the same must be payed . ix . of freighting of ships by a factor , where he is obliged to see the same discharged . x. of the general rules to be used , touching the construction of their ▪ actions . i. a factor is a servant , created by a merchants letters , and taketh a kind of provision called factorage , such persons are bound to answer the loss , which happens by over-passing , or exceeding their commission ; but a simple servant , or an apprentice can only incur his masters displeasure . the spaniard hath a proverb : quien passa commission pier de provision ; he that exceeds his commission , shall loose his factorage : but time and experience hath taught them to know better things , for now it is : subolca la paga , his purse must pay for it . the gain of factorage is certain , however the success of the voyage proves ; and it is the prudence of merchants to chuse honest , and industruous persons , for otherwise the factor may grow rich , and the merchant poor ; the first being sure of his reward , the latter uncertain of his gain . ii. in commissions they now generally incert these words : dispose , do , and deal therein as if it were your own ; by which the actions of the factor are to be excused , though it turns to his principals loss , because it shall be presumed he did it for the best , and according to his discretion . iii. but bare commission to a factor , to sell and dispose , will not enable him to trust , 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 receive the other , for otherwise by that means , as they may trust six moneths , they may trust sixteen years : nor by the vertue of that clause , of doing as if it were their own , may they trust out to an unreasonable time , as ten or twenty years instead of one , two , three moneths , which is the customary time for the like commodities : and so it was adjudged , where one had remitted jewels to his factor in barbary , who disposed of the same to mulleshack the emperor , for a sum certain to be paid at a time , which being elapsed , the factor not obtaining it , was forced to make the same good to his principal . iv. again , one and the same factor may act for several merchants , who must run the joynt risque of his actions , though they are meer strangers to one another ; as if five merchants shall remit to one factor five distinct bales of goods , and the factor makes one joynt sale of them to one man , who is to pay one moyety down , and the other at six moneths end ; if the vendee breaks before the second payment , each man must bear an equal share of the loss , and be contented to accept of their dividend of the money advanced . but if such a factor draws a bill of exchange , upon all those five merchants , and one of them accepts the same , the others shall not be obliged to make good the payment . v. and as the authority , and trust reposed in factors is very great , so ought they to be provident in their actions , for the benefit of their principals ; and therefore if factors shall give time to a man for payment of moneys contracted on sale of their principals goods , and after the time is elapsed , they shall sell goods of their own to such persons for ready cash ( leaving their principals unreceived ) and then such men break , and become insolvent , the factor in equity and honesty ought to make good the losses , for they ought not to dispense with the non-payment of their principals moneys , after they become due , and procure payment of their own to an other mans loss ; but by the laws of england they cannot be compelled . vi. yet if goods are remitted to a factor , and upon arrival he shall make a false entry at the custom-house , or land them without the customer , whereby they shall incur a seisure or forfeiture , whatsoever the principal is endammaged , he must inevitably make good , nor will such general clause help him as above : but if a factor makes his entry according to the envoice , or his letter of advice , and it falls out the same are mistaken , if the goods shall be lost , yet the factor is descharged . and as fidelity , diligence , and honesty are expected from the factor , so the law requires the like from the principal , judging the act of one to be the act of the other ; and therefore if a merchant shall remit counterfeir jewels to his factor , who sells and disposes them for valuable considerations , as if they were right , if the factor receives any loss or prejudice thereby , by imprisonment or other punishment , the master shall not only make good the dammage to the factor , but also render satisfaction to the party damnified ; and so it was adjudged , where one how was possessed of three counterfeit jewels , and having factors in barbary , and knowing one southern , a merchant , was resident on the place , consigns those jewels to his factor , who receiving them , intreated southern to sell those jewels for him , telling him they were good jewels ; whereupon southern , not knowing they were counterfeit , sold them to the king of barbary for eight hundred pounds ( they being worth really but one hundred pounds ) and delivered the money to the factor , who remitted the same to how ; the king of barbary not long after finding himself couzened , committed southern to prison till he repaid the eight hundred pounds : whereupon southern coming for england , brought his action against how , and had judgment to recover his dammage ; for the principal shall answer for his factor in all cases where he is privy to the act or wrong : and so it is in contracts , if a factor shall buy goods on the account of the principal ( especially if he has used so to do ) the contract of the factor will oblige the principal to a performance of the bargain . vii . when factors have obtained a provenue or proffit for their principal , they must be careful how they dispose of the same , for without commission or order they must be responsible . goods remitted to factors , ought in honesty to be carefully preserved , for the trust is great that is reposed ; and therefore a factor robbed in an account , brought against him by his principal , the same shall discharge him † . and so it is if a factor buyes goods for his principal , which afterwards happens to be damnified , the principal must bear the misfortune : but if a factor shall dispose of the goods of his principal , and take money that is false , he shall there make good the loss ; yet if he receives moneys , and afterwards the same is by edict , or proclamation lessened in value , the merchant , and not the factor must there bear the loss . again , in letters of credit , the factor must be sure to see , whether the commission is for a time certain , or to such a value , or not exceeding such a sum , or general , in which he must have a careful eye . viii . a merchant remits goods to his factor , and about a moneth after draws a bill on him , the factor having effects in his hands , accepts the bill , then the principal breaks , against whom a commission of banckrupts is awarded , and the goods in the factors hands are seized ; it has been conceived , the factor must answer the bill notwithstanding , and come in a creditor , for so much as he was enforced by reason of his acceptance to pay . ix . if a factor enters into a charter party with a master for freightment , the contract obliges him ; but if he lades aboard generally the goods , the principals and the lading are made liable , and not the factor , for the freightment . the principal orders his factor , that as soon as he hath laoded ( he having moneys in his hand ) to make an assurance on the ship and goods , if the ship happens to miscarry by the custom of merchants , he shall answer the same , if he hath neglected his commission ; so it is , if he having made an assurance , and loss hath occurred , he ought not to make a composition without orders from his principal . generally the actions of factors do depend on buying , selling , freighting , and all other the heads that have been treated in the second book , by which their employment is universal in matters maritime , and of commerce ; and the questions which would arise touching the same , if treated on , would be infinitum : however these are to be the standard rules , which should govern their actions ; viz. honesty , faithfulness , diligence , and observing of commission , or instructions , which being considered , and weighed by those that shall be judge of their actions , a right understanding and determing of the matters , arrising between them and their principals , would soon be ended . but those sort of factors that have wanted those things , seldom or never render any other account , but long , and tedious chancery suits ; by which they not only have endammaged their very trade , but seek to marry their principal to a double affliction , by obliging them to sue either a beggar , or that which is worse , a naughty man. on the other hand , factors that behave themselves worthily , and prudently in the service of their principals , ought after their tedious service be numbered amongst those that justly challenge that worthy denomination of merchant : and such was he who never made breach of commission , in the service of his principal , but once ; that was , when wines were committed to him to dispose of , but the price ( by reason of a glut ) fell , advice being given to the principal of the same , who immediately in passion writes to his factor , to take a hammer and knock out the heads ; but the factor considering ( that leave must be given to loosers to speak ) knew better things , and kept the sold them for their full value ; and when accounts were to be made , instead of bringing to the account of wines , their heads knockt per order ; worthily brought per contra , sold at their intrinsique value . such faithful ministers , i say , justly deserve that of our saviour , well done , &c. and be no more called factor , but merchant . chap. viii . of the laws of nature and nations . i. of the variety and contrariety of humane actions , and from whence they spring . ii. of the difficulties that happen in the obstructing our inquisition , in finding that which is lawful . iii. humane laws from whence they flow , and wherefore the laws of nature are above ours . iv. no man naturally more a judge then another , of natures laws . v. nature's laws are instituted for inward goodness , and virtue ; but state laws for quiet , and repose . vi. of punishment required by kings , against those that violate the laws of nature or nations , though the same touch not them , nor their subjects , and of punishing an equal . vii . of punishing an equal , where that right fails , and the reasons of the same . viii . of kingdoms equal in power , cannot be commanded , but entreated , may be to execute the judgement of another , by the law of nations . ix . that such power of executing the judgments , or decrees of any forreign nation , extends not to those of life or honour . x. of executing the judgments given in a kingdom absolute , in another that is annexed by conquest ; and of the difference of that , and one by union : xi . where that right fails in plantations , and the reasons of the same . i. plain reason shews us , that natural and mathematical causes have more certitude then civil ; for nature is alwayes uniform and alike in its operations : hence fire alwayes burne , and never wets a stone , in the ayre naturally tends downwards , and never stayes in the middle : in mathimatical causes ordinarily the forms , are such , as have no middle interposed , as betwixt even and odd ; there is no medium parti participationis , betwixt a right line and a crooked ; there is no middle sort of line ; thus two and two alwayes make four . but civil or humane actions , proceeding from a 〈◊〉 table and various principle ( the will * ) cannot alwayes be alike or uniform : and besides the will within , humane actions without , are subjected to different circumstances , and to infinite encounters ; by reason of which their excessive number , they cannot be foreseen while men are making laws : hence we may understand , wherefore it is said , omnis definitio in jure est periculosae , and that summum jus at some time may be found summum injuria ; as to render a man his sword , when he is actually mad , &c. and as circumstance hath power to change the matter , so in the form of the action , it leaves in the middle a latitude , sometimes enclining to one extream , sometimes to another . for example , betwixt that which by precept we are commanded ever to do , and that which we are commanded act ever to do , is plac'd that which is lawful for us now and then to do , or not to do , in matters of our own right , so far as they seem expedient , or not expedient for us : thus joseph is called a just man , because he thought of divorcing himself from mary , though upon circumstances he would not , &c. but that which perplexes us all here is , that this licitum leans sometimes more to the one hand , sometimes more to the other , sometimes more to that which is absolutely good , sometimes more to that which is absolutly bad ; from whence grow scruples & doubtings , whether in such twilight we really participate more of light then of darkness , that is more of good then of bad . iii. humane laws grow most out of these middle things , ex mediis licitis ; and upon right examination we find , that a man hath nothing else to dispose , for we ( poor subordinate vessels ) cannot so much as deliberate de absolute debitis , and absolute illicitis , for they were in force before man , prince or people were in being , and god himself cannot now alter them , they flowing intrinsically , either from his sanctity , wisdom , and justice , as he is a creator and governour ; or else they flow from nature , whose rule ( according to gods making it by that which is in himself ) is right reason and honesty : this upright●…ess of nature , together with that obligation we have to be subject to it , was not a moment after us , and therefore we could not determine any thing about it ; for which cause we have not a legislative power to alter or diminish any of nature's laws . iv. saint paul tells us , of those who without any after knowledge of gods revealed will or laws to man , were condemnable by those of nature alone , in the punishing the breakers whereof : no man is naturally more a magistrate then other ; otherwise what meant cain , when after his murther he cryed , whosoever shall find me , will slay me . v. and though humane laws remember us of those things , yet it is not as if they gave their original and primary force of obliging ; yea , reason of state is not busied so much about inward piety and virtue , as it is about publick quiet and repose , or those actions which regard another mans receiving right or wrong ; and hence it is that great prodagility is not so severely punished as a little robbery ; and that malus homo potest esse bonus civis , the reason is , because though he may do himself wrong in his own rights , yet he may alwayes do other men right in theirs ; neither is there any clear reason , wherefore those lesser sins and impieties , should be punished by any but god , who is wisest to know them , justest to weigh the merit of them , and powerfullest to punish them . this is the state of gods , and of nature's laws , to which we are all equally obliged , but our floating and circumstantiated laws are only to give a rule , for an equal and mutual community in things , which god and nature gave us to dispose of as we would our selves . vi. hence it is that kings and such as have equal power with kings , have a right to require punishment , not only for injuries committed against themselves or their subjects , but for them also that do not peculiarly touch themselves , whatsoever the persons that do unmanly violate the law of nature or of nations , for the liberty by punishments to provide for humane society ( as hath been already mentioned ) was in the hand of every man 〈◊〉 , but after common-wealths , and courts of justice were ordained , it resided in the hand of the highest powers , not properly as they are over others , but as they are under none : for subjection to others hath taken away that right ; yea so much more honest is it to vindicate other mens injuries then our own , by how much more it is to be feared , that a man in his own by too deep a resentment may either exceed a measure , or at least infect his mind ; however , his right of punishing an equal , remains still in those places where the people remain as in great families , and not in cities , or under some government ; and therefore those that have now possessions of any parts of the new world , or american isles , till they have either voluntarily submitted to a government , or put them and their discovery into the hands , or protection of some prince that may exercise power , there remains the old and natural right of punishing for offences : so likewise where persons shall be assaulted by pyrats on the seas , if they be overcome , they may be immediatly executed by the law of nature ; for otherwise there would be a failer of power to punish such : besides the old natural liberty remains in all places , where are no judgments ; so where they are taken and brought to a port , and the judge openly refuses the trial of them ; or that a trial of them cannot be had , without an apparent detriment , and loss to the captors , justice may be done upon them by the law of nature . vii . two pyrats resolving to assault , and rob the next vessel they meet with , ( not knowing each others condition or design , ) encounter , and the one happens to be overcome by the other ; the question is now , whether the above mentioned right so far remains , as that the stronger may execute him that he hath overcome ? right reason dictates , that the evil doer may be punished , not who should punish him ; but that nature sufficiently sheweth , that it is most convenient to be done by him that is superior ; yet doth it not demonstrate this to be necessary , except superior be taken in that sence , that the evil doer be thought to have made himself thereby inferior to any other , and to have as it were degraded himself from the order of men , into the number of beasts subject to no man , and such are pyrats , who have no other denomination but night-wolves , or beasts of prey . by nature it is ordained , that the better command the worse ; and aristotle * saith , the worse are provided for the use of the better , as well in naturals as in artificials , it follows hence , that at least a guilty person ought not to be punished by another equally guilty , to which purpose is that saying of christ , vvhosoever of you is without sin ( that is such sin ) let him throw the first stone . pertinent is that saying , the sentence can have no authority , where he that judgeth is to be condemned ; from whence , it follows , that the right of punishing in such case at such time ceases . viii . kingdoms which are equal in power , and having no dependance on each other , cannot be commanded nor corrected of another ; but if there be a question , to execute the decree or judgment of one in the territory of the other , there may issue forth a commission of entreaty , under the seal of that court where the judgment was given , or at least under the great seal of the prince , directed to the judges in that place where the the defendant is resident , and the judge to whom the said commission is directed may award execution , according to the laws of nations : and so it was adjudged , where one having recovered a debt before the governour of freisland , defendant upon that fled for england , the governour at the request of the plaintiff , issued forth his commission of request , directed omnes magistratus infra regnum angliae rogans , to make execution of the said judgment ; upon which the judge of the admiralty in england issued forth , an execution of that sentence , and the defendant was taken , upon which he brought his habeas corpus , and adjudged the sentence well executed by the laws of nations , and according to the common law of this realm . so likewise if a dutch-man takes up goods at the port of london , and gives a note under his hand for the payment of the same , and then flyes into holland , the vendor may apply himself to the lord major of london ; and upon proof of the delivery , and sale of the goods , the lord major making a certificat of the same , and sending it under the city seal directed as above , they of holland will , and do execute the same upon the party . herein this last case differs from the first ; for by the former , if there should fall a question about the interpretation of the judgment or sentence , the same cannot be done , for they are not to examine the same ; and the reason is , least the stranger be induced at another time to do the like , and so dissolve the judgments whereof they should demand the execution , the which would be done more through jealousy of the state , then for any injustice in them ; besides the judgments or sentences , which are matters of record and of the greatest security in a kingdom , the presumption that they were justly given shall alwayes be understood . ix but in the latter the same may be examined , that is , the merchant may be heard as to his legal defence , either to the lessening or discharging the debt or dammage , but against the testimony certified , no objection can be made , but the same is admitted as legally proved . but if there be a question of honour or life , there they may not execute the judgments of forraign judges , especially if they have not kown the merit of the causes or seen the informations , or heard the witnesses ; but more especially in england , for there can in no respect whatsoever the life of a man , ( let his offence be never so hainous ) be brought to punishment without a legal tryall , * and that by the producing of witnesses viva voce to his face , yet princes for the respect they bear each other , and for the good of justice , though they cannot at the bear request of the judges of another prince , put them to death ; yet they may for exemplary punishments ( which ought to be made upon the places were the fact was committed ) yield the natural subject to his natural prince , unless the prince to whom the fugitive is fled findes that he is unjustly pursued , for in such cases he is not bound to yield them ; yea , he is forbidden by the law of god to restore a bound-man , which is fled into another mans house , to avoid the fury of his master . x. and as the same is in cases forraign , so likewise in those estates that are under the crown of england ; and therefore if a man recovers against † i. s. in the kings bench in england , and then the defendant flies over into ireland , the judgment may be certified over into the chancery in ireland , and they may by mittimus send it into the kings bench there , and they may award execution or otherwise the party may bring his action of debt on the same ; so the like has been done for decrees given in the chancery in england , which have been exemplyfied under the great seal , directed to the kings lievtenant , for the putting the same in execution there ; but in no case a judgment given in england may be certified over under any other seal , but that of the great one . but in scotland it is otherwise ; for that is a kingdom absolute , and not like ireland , which is a crown annexed by conquest , but the other is by union ; and though they be united under one prince ad fidem , yet their laws are distinct , so as if they had never been united ; and therefore the execution of the judgments in each other , must be done upon request , as above , and that according to the laws of nations . xi . but in collonies or plantations , which are reduced into the condition of great families , have not this right of requesting , for they are governed by the laws prescribed by the souveraign of the same , who may set jurisdictions , & make them places priviledged not to have the persons attached or arrested in any other places , but within their own bounds ; so likewise upon their first forming or institution , may so declare that for any debt or contract made or done in any place but in that of the same plantation , they shall not be impleaded ; and therefore in virginia at this day , if a man contracts a debt in england , flies to the same , she cannot be there impleaded : but if a man takes up goods , and carries the same over thither , there he may be sued in the place ; so likewise if it can be proved he carryed over the money borrow'd , and this amongst others of the laws and constitutions of those plantations , is preserved inviolably , the same being as it were a pledge and general safety , which is given to those inhabitants , that shall resort thither , and there plant themselves for the good of the place ; and although those that thither flie , by reason of great and unreparable losses , have contracted debts far beyond their ability to satisfy , a failer of which , in strictness of law , may ( if the creditor pleases , ) oblidge their bodies to imprisonment ; yet doth it not thence follow that the same ought to exacted ; for though the carcass of men may gratify the revenge of the creditor , yet it never can pay the debt ; wherefore if those ends by themselves in a morall estimation be not necessary ; or , if other ends on the opposit part occur , not less profitable or necessary ; or , if the ends proposed by imprisonment may be attained another way , it will then follow that if there be nothing of obligation on the debtors part , to render himself a prisoner to the creditor ; that then if the same can or may be avoided by flight , the same in conscience may be done ; according to that of cicero † , it was not fit perhaps to dismiss him being brought to judgment , but that he should be enquired after , and brought to judgment , was not necessary . finis . a short table of the principal matters contained in this book . distinguished by lib. for the book , chap. for the chapter , and §. for the paragraph . accessory . lib. chap. § . pyrat in the attempt kills a person , by the law maritime the slayer onely is principall , and the rest onely accessories : but by the common law otherwise . . . no accessory to pyracy can be tryed by virtue of the stat. h. . but he must be tryed in the admiralty . . . , acceptance . acceptance of a bill of exchange , what words amount to the same , . . , actions . actions of trover will lye for an th or th part of a ship. . . admirals . the reason of their power , . . lib. chap. § . admiral , where th part of the prize is due to him . . . 〈◊〉 admiral hath no jurisdiction infra corpus com. . . he may issue forth commissions for the assembling of court martials . . . execution of a sentence of death cannot be without his leave . ibid. agrument . made with forraigners by the commissioners of the custome-house , all persons subjects shall have benefit of the same . . . agreement for freight , where the same is determined by the fault of either party . . . cannot be made with a mariner for the freightment of the vessel . . . averidge . vide contribution . alien . not capable of the kings pardon unless they were resident at the time the same was promulgated , . . capable of taking , but not of enjoying : what they may hold ; and if they depart , who will enjoy the same . . . cannot transfer to his heir to what he is disabled to hold . . . alien marries an english woman that is seized , the issue shall inherit . . . though the issue be born beyond the seas shall inherit . . . born in the kings dominions not aliens . purchases lands with a natural born subject to them and their heirs , they are joynt-tenants , . . aliens resident , and aliens travelling through france , the difference b●…tween them as in reference to their estates . . . administration of an alien's estate may be committed to the next of kin. . . diff●…rence between the crowns of france and england in reference to the births of persons born in places which they formerly possest . . . alien in league his action is only to be abated ; but in enmity , may conclude in barr . . . alliances . alliances not determined by the death of the prince . . . ambassadors . where obliged not to treat with any other but the prince . . . how regulated at the congresse , . . their function . . . how protected though the messengers of rebels or thieves . . . violence or killing them how punishable . . . , may be rejected and not received , and when . . . where punishable by the lawes of nations . . . , . are not to render account to none but to them that sent them , . . not bound by any thing that is not malum in se jure gentium , . . yet obliged to the formalities of law , . . he may have soveraign jurisdiction over his family by the concession of him with whom he resides , . . his goods and moveables cannot be seized on for any civil matter , . . ambassadors of venice cannot receive any present or preferment from any forraign prince or state. . . bailio at venice is the ambassador for that republique , . . anchors . anchors may be placed for conveniency against the owners will in other places . . . not fastning of buoyes to them , punishable , . . appeal . appeal lyes from the commissioners of assurances to the lord keeper , . . assurance . assurances private and publique are both alike as in reference to the obtaining satisfaction , . . , , may be made on ships or other things as well as merchandize , . . assurors are discharged upon the alteration of the property . . . they are not to answer for a detriment that was occasioned purely by the laders means . . . attachment . attachment of the lading cannot be made in the masters hand , . attaint . the law takes notice of the person subject , but of an alien è cont ' . no corruption of blood upon an a●…tainder of pyracy . . . , barretry . barretry of the mar●…iners , who shall be responsible for the same . . . battel . goods or ships gain'd therein , where the owners are divested of their property . . . but regain'd by a ship of warr , the property is preserved . . blanks . filling them up against law , . . boats. ship boat not forfeited by the pyracy of the ship. . . the duty of boats and all other small vessels in time of warr and in battail . . . bottomery . from whence so called , . . buoyes . not putting them to anchors subject the master to punishment , and answer the damage . . . bulk . when the same may be broke , . . butlerage . what , and when payable . . . canon . canon designed for the relief of a city or fleet , cannot in a storm be flung over-board , . . captives . where they may be justly kill'd , . . how that power is governed , . . where he that dyes in it is supposed to dye before his being taken , . . children born before their being taken are free . . . captive general is immediately the prince's prisoner . . . ports and cinque-ports . ports in england , . . free of prisage . . . members and creeks , what are meant by them , . . within the body of the county , . . port of london its extent . . . clergy . not allowable to a pyrat for pyracy on the high sea. . . but in a creek or port it is , . . commanders . their duties in time of fight , . . commissions . commissions awarded to enquire of depridations , . . and to give satisfaction . . . commission for warr in what respect . . . commissions qualifie the caption , . . communion . communion of pastures in our first parents , . . confederates . differences amongst them how determined . . . confederates how bound to defend each other . . . of the succours they are to lend , . . may ayd one another against one anothers confederates , . . consanguinity . the various degrees of the same , . . in all collateral descents except between brother and brother , the half blood does inherit , but between them the half blood does impede . . . contraband . contraband goods , where the same may be seized . . . contracts . contracts between princes though by force oblige . . . contracts between merchant , and master where valid , and where not . . , , contract is not determined if the ship be taken by an enemy , and afterwards retaken . . . contract for freight cannot be made with a marriner . . . charter-parties settle the agreement , and the bills of lading the contents . . contracts where they have their inception from sealing . . . none of the ancestor can bind the person of the successor as to point of slavery . . . contribution . contribution for moneys lent on bottomery . . contribution , the remainder of the lading are as tacitly obliged to the same , as for freight . . . two ships encounter anawares , the contribution is to be proportionable . . contribution shall not be made if the sayls or masts are broken or lost in the storm ; but if cut down , otherwise . . . no contribution but where the ship arrives in safety . ibid. contribution in cases of necessity , . . contribution a main ingredient in leagues , and how regulated , . . contribution cannot be had by one whose goods are taken by reprizal . . contribution where to be made for the redemption of the master . . contribution may be paid to both parties . . . , corporations . when introduced for merchants in england . . of those trading to india from england and holland . . countermand . may be made by the drawer at any time before the money becomes due . . courts . by the statute of h. . courts may be erected for the tryal of pyracy . . . where the admiralty hath jurisdiction of the principal , the courts at common law will remit them their accessory . . . court appointed for the trying of merchant strangers causes according to the custome of merchants . . fol. customes . goods wreck't pay no customes , . . customing goods in another mans name , the penalty . . the king is entitled to his duty upon breaking of bulk . . . cannot be imposed without act of parliament . . , , may be fermed out . . the antiquity of customers , . . customes what is meant by the same . . of magna custuma , and for what given ibid. parva custuma on what considerations given . . how the same is governed . . . , c●…wards . to suffer death without mercy , . . , , damage . to be repaired out of his or their estate that commit an injury ; if not , then the same becomes a national debt , . . denizen . the issue born of english-man on the body of a forraigner beyond seas , is a natural born subject , . . denization by letters patents of france , remove the total disability ; but in england è cont ' . . two denizon brothers , one purchases lands and dyes , the other may inherit . . . not capable of honour . ibid. derelict . cannot be of any goods cast over-board to lighten the ship. . . of places that are possessed one day , and abandoned another , make not a derelict . . descrters . may be slain by any man by the lawes of nations . . . , , coward suffers death without mercy . . vide der●…lict . disability . ships disabled in battail are not to be relieved till the enemy is beaten . . disability of the father hinders not but one brother may be heir to the other . . no disability in an alien beinging an action in auter droit , . . an alien infant disabled to be a merchant trader in england , . . disability not cured in an ancestor , without actual naming them , . . discipline . orders must be obeyed , and they that break them may be punished though the act succeeds well , . . disclaimer . by the predecessor shall barre the successor . . discent . . the rules that govern them , . . . discents according to the canon law . . impeded in an ancestor from whom and to whom will hinder the discerit , . . disfranchise . the ancient way of compleating the same . . cannot now be done to a freeman without lawful tryal . the various wayes now used by the laws of england . . domi●…on . dominion universal , . where acquired lawfully by warr , . . division of estates first among families . . dominion personal where the same may be . . dominion of things began from natural possession . . . not founded in grace . . dower . the wife of one in exile may bring a writ of dower . . an alien wife cannot have the same unless a queen . . a jew born in england takes a jew born in england , she cannot have dower . ibid. ecclesiastical persons . by the canon law exempt from reprizals . so likewise from the sword in time of warr , . . election . given to the merchant to charge either master or pylot for damage done . . . the like to charge the master or owners ibid. embargo . embargo when by the lawes of england , . . goods of a friend in the hands of an enemy not subject to an embargo . . goods laid aboard are embargo'd , yet freight shall be paid . . enemy . goods taken from them become the captors . . enemies goods and merchandize taken by them , and afterwards retaken , alters the property . . enemies what is lawful to do against them . . if taken in the realm are to be tryed by martial law . . to relieve him by a souldier in pay punished with death . . england . none could trade thither without leave . . english no nation n●…re tender of their honour . . exchange . exchanges the various sorts . . . bills on the same are to be governed by custome . . what amounts to an acceptance , . . once accepted not to be revoked , . . accepted for the honour of the drawer , ibid. executor . executor of a forraigner shall not have the benefit of being discharged of prisage , though he is a citizen of london . . exile . the various wayes of banishing a subject . . . what a man forfeits by the same , . . exile of the father binders not the freedom of the son. ibid. factor . factor enemy , the goods of a friend in his possession not subject to an embarge . . factor contracts for another port , and before departure the ship takes fire , the assurors are discharged . . factor super cargo cannot alter the voyage agreed on without special commission . . factor super cargo ought to be consulted with before there be a casting over-board . . he ought to give notice if there be any plate or jewels in boxes or trunks . . factor enemy the goods in his possession not subject to reprize , . . cannot give time . . principal , where obliged by his act , and where not . . feés . to the officers of the custome-house how governed . . felony . the wilful casting away of a ship by a master that had taken up moneys on bottomery . . stealing of cables or any of the ships furniture belonging to the king , punished as felons . . stealing of men at sea , felony . . . fishermen . fishermen ought not to fish in the night with lanthorns or lights , . . flagg . but a consecutive acknowledgment of the british seas . . demanded peremptorily by the english , and punished as rebels if refused . . how the same differs from that claymed by the french . . the right how far it is to be paid , . . how punishable for the neglect , . . force . used by persons in opposition to justice , may occasion reprisal , . . forfeiture . the forfeiture of ships drawes not the loss of the boat . . forraigners . have a right to compell where justice is denyed in the ordinary way , which subjects have not , . . forraigners robb'd at sea have a right to prosecute within the stat ▪ of h. . . . so for the like offence to be punished by the statute of f. . . . forraigners in enmity together with some english commit pyracy , how punishable . . forraigners committing pyracy on the british seas , punishable by the crown of england , and not elsewhere . . . vide aliens . fraud . fraud and covinous assurance is void . . . freéman . how many wayes he may be made of city or burrough . . . what makes a compleat freeman , ibid. freight . freight where the same may be refused by the master , and where not . . freight is the mother of wages , so likewise the father of damage . . it is governed by the contract , . . it shall be paid though the ship proceeds not her voyage , if once she laded . . freight becomes due though there be a failer of compleating the voyage according to the time agreed on . . freight not due if the vessel is robb'd . . out and in not due till the whole voyage be compleated . . . if any fault arises from the freighter , he shall answer . ibid. fugitives . fugitives , the houses of ambassadors are sanctuaries for them , . . whether they may be delivered up flying into another countrey , . . persons that have wronged kings of their revenue , have been delivered up when they become fugitives . . are received by the laws of warr , . . generals . good generals , one of the greatest of happinesses that can come to a prince , . . such are followed to death by the army ibid. not to be slighted , and of the cruelty shewed to belisarius . . when taken in battail they are not the captors but that princes or states by whose subject they were taken . . . goods . when the property of the same is altered by the lawes of arms , . . of a friend in the custody of an enemy not subject to reprize , . . goods counterband where the same may be subject to reprize , . . of an enemy may as well be spoyl'd as taken . . what may be made prize , and what not . . , goods secretly brought a shipboard , if lost oblige not the master , . . but if secretly brought in by the master after a ship is freighted , if damage happens to the rest he shall answer ; nor can those goods if cast over-board be subject to an averidge . . goods on a mans body not subject to an averidge . . goods how estimated for the setling an averidge . . . exported what allowances to be made . . , habitation . in time of fire or warr may be pulled down . . habitation or domicil and not originatirn or nativity that subject men to reprizal . . havens . the same ought to be kept in peace . . hostages . he that gives them is freed from his faith . . are not to be slain generally ; may be put to death if the contract be broke . . . impiety . impiety punished a shipboard , . . incertainty . of the port , as if a blanck is left in the policy , if a loss happens , the parties are without remedy , . . indictment . for pyracy upon the statute , must mention the same to be done at sea . . indiction . if necessary . . infidel . cannot be a witness , yet may bring an action . . innocent . whether such a person may be deserted to prevent a warr . . how obliged to render up himself , . . interpellation . interpellation having gone and no satisfaction returned , whether warr may be begun . . joynt-traders , vide societieg . joynt-traders , the acceptance of a bill by one will bind the other , . . but accepted by one member of a company it cannot oblige another justice . stopt , and judges not able to protect men from violence , denotes warr . . denyed or delayed in the ordinary course to a forraigner gives right of reprizal . . , in matters doubtful the presumption is alwayes for the judge , . . king. king's standard appearing in the field denotes a warr , . . king not entitled to the copyhold land of an alien . . law. of nature , what thing may be acquired in warr by the same , and also by the lawes of nations . . law civil cannot command any thing that the lawes of nations forbids . . lawes of nations broken by an ambassadour subjects him to punishment . . judgments how executed by the lawes of nations . . larceny . where the same may be in a master , . . leagues . leagues made with princes though they have lost their kingdome , remain . . leagues remain though the republique is changed into a monarchy . . leagues the oath binds the person , and the promise the successor , ibid. leagues confirmed in england by parliament , and are often offensive . the cause ordinary for which they are made . . defensive leagues leagues how ratified . . . how broken , and the ordinary cause . . . , how to be interpreted . . loadmanage . what. . . london . discharged of prisage . the extent of the port . . keyes and places lawful for landing in the same . . charter confirmed . . lotts , vide mutiny . manumission . when first introduced . . . the various wayes of making free. ibid marriners and fishermen . pressed for the service are not to be imployed but as marriners , . . their wages dye with the ship , . . marriners their suits favoured by the courts at common law , . . may be corrected by their master or captain . . marriner cannot contract for freight . . marriners what share they have in the goods of a passenger deceasing in the voyage . . . marriners their faults and punishments . . , marriners a shipboard their various offices and imployes . . . their faults how punished . . . the mutual ayd they must afford one another . . not to be arrested a shipboard , nor are they to depart thence when once entertained . ibid. obliged to make satisfaction . . . masters of ships . where his knowledge of the goods may involve the whole lading , . . master of a ship hang'd up for attempting to relieve a place block'd up . . master of a ship becomes a pledge in the hands of pyrats for the redemption of the ship , the same is made lyable for his redemption , . . master brings goods to a port and then runs away with them , not pyracy . . master responsible for offences to his owners . . where he may release the freight , and where not . . where his act obliges the owners , and where not . . . master hath no property in the vessel by being constituted master , . . master becomes lyable immediately by the lading the ship aboard , . . so likewise if he receives them , if lost he must answer , . . his duty . . he may borrow money on the ship , . . . . the master is obliged to the care and preservation of his marriners . . he is obliged for the barratry of his marriners . . master not lyable unless the lading is brought aboard by his and his pursers consent . . nor can the same be attached in his hands . . if he translades the lading , and the ship miscarry , he shall answer ; but if both , è cont ' . . master to answer for insufficient ropes in hoysting out the goods , . . masters obliged by the act of their servants . . members . what is understood by them . . . merchants . honour justly due to merchants , . . the more honourable the persons are , the more reputation they bring to their country . . . all nations professing the same , may freely traffique for england . . merchants strangers their immunities granted . . an alien infant cannot be a merchant trader in england , nor can be enter goods in his own name , . . no survivor amongst joynt merchants . . may depart without leave . . money . is the civil measure of things , . . its necessity in society . . , advanced on a contingency is no usury . . , mutiny . to be punished with death , how the same is to be governed in such extremity . . not to mutiny if the victuals are naught . . they may be executed immediately . . naturalization . cannot be in england without act of parliament . . it removes all the disability or incapacity in the ancestor . . . naturalized in ireland operates not in england ; but in scotland otherwise . . . necessity . the master may translade without commission . . necessity is excepted out of the law of dominion . . ships in necessity may take things necessary from another by force of arms . . the right of nature in such extremity where let in . . . in such exigencies how written lawes are to be interpreted , . . neutrality . neuters how they ought to carry themselves in warr . . neuters their ships in the ports of the warring parties , whether being forced to fight , is a breach of the league . . neutrality what and how made , . . the advantage of the same . . neuter neither purchases friends , nor frees himself from enemies . . . it works no wrong , ibid. if prest , for whom must he declare , . . oath . he that gives it to pyrat is bound to the performance , . . oath may be administred by the judge advocate . . office. king not entitled to the lands of an alien till office found ; but in treason è cont ' . . officer . quarrelling with how punished ; if struck , the party offending suffers death . . owners . owners may freight out their ship against the consent of each other , . . cannot be obliged to continue partnership . . the master is obligeable by them , . . not obliged to joyn in an action , . . property of the ship followes the owners of the materials , not of the builders , if it be built all with their goods . . package . on what the same is to be paid , and what packers are to take . . pardon . of felonies extends not to pyracy , . . , petty averidge . when due . . planters . of the right of planting . . , where they may dispose of the same by will . . plunder . souldiers so doing may be slain by any man whom they shall attempt . . ports . what , . . within the body of the county , . . robbery committed in them not pyracy ibid. ports of nations in amity may deliver ships brought in there by an enemy . . neuter ports , the peace of them ought to be preserved . . . . . . ports not to be visited after a warr begun by an enemy . . ships driven in by stress of weather not subject to reprize . . peace of them ought to be kept , . . possession . the highest title that men can pretend to what they enjoy . . yielded without fighting to be used civilly . . prize ships may not alwayes be possest . . possession of a ship creates no title . . poundage . what , and how the same may be levied . . prerogative . the king hath to dig in any mans ground for salt-petre . . prescription . it s uncertain beginning . , depends not on the corporeal but civil possession . . availes not in things that have been stolne . . prest . the punishment of those that run away . . vide marriners . primage . when payable . . princes . responsible for injuries publique , and in prudence ought to redress injuries private , especially to forraigners . . responsible by the lawes of nature for the neglect of suppressing pyrats . . not bound to treat personally with ambassadours , . . the death of one determines not the alliance . . their wisdome is to be considered in leagues . . are not to examine one anothers others title , but it 's enough they are in possession . . though driven out of their country , may consent that commerce shall be forbidden to his subjects . . the declared will of them cannot make all those of our acts sins , . . nor can their interdiction if disobeyed when their subjects are possessed by their enemy , create an offence ibid. one of their chiefest happinesses is a good general . . how they govern themselves in treaties . . , bound to render honour to their equal ibid. peace . ought to be purchas 't at any rate , and to be maintained with the greatest faith. . . prescription . silences all tribunals , though its inception is not known . . it's necessary to have the force of right . . prisage . not grantable away without act of of parliament . . not due till breaking of bulk . . prisage becomes due if the property be changed though the goods are not landed . . priviledge . the hanse towns had several , and when they determined , and upon what occasion . . ●… charta mercatoria on what considerations the same was granted . . . prize . prize the th part justly due to the admiral . . equally divided amongst the captors . . prize ships their papers are to be preserved . . may not alwayes be possest . . proclamation . whether necessary before a warr , . . having passed , where the goods of friends may become prize , ibid. prohibition . goods prohibited may subject the vessel to a forfeiture . . property . when first introduced . . where the property of the vessel followes the owners of the materials . . the property of the ship and goods of a pyrats becomes his that takes them . . , legalis captio , difference between that and spoliatio , as in reference to the changing of property . . cannot be questioned but by the common law . . can be questioned in the admiralty , if before sale the ship was sold bona fide . . property of goods altered by being taken and retaken in warr , . . property of goods taken by pyracy , altered by sale in a market overt . . protection . the true ensign of liberty . . what and by whom accepted , . . protest . subjects every of the drawers that subscribed to answer the summe drawn . protest the use and meaning of the same . . pylott . when he is discharged of his duty , and how obliged to answer for negligence or wilfulnesse , . . , , pyrats . what . . improperly called enemies , yet hold an equality . . are not to have succour . . overcome in the ocean may be immediately executed by the lawes of nature . . or ▪ brought to a port and the judges refuse or the captors cannot stay without prejudice , may be executed . . pyrats onely questionable properly in that country where the ship is carried . . quarter . not to be given to persons taken in fire-ships . to demand it not repugnant to the oath called sacramentum militare . . rebellion . in those that shall not strike to the king of england's flagg , . . reception . reception from an enemy what is gain'd by the same . . release . of the master where it binds the owners . . renunciation of the lading when it may be . . , relief . appointed for marriners and maimed souldiers . . . religion . whether lawful to plant the same by force of arms . . renegado . the policy of the turk in making them . . cannot be a witness by the lawes of any christian kingdome , . . reprizals . from whence derived . . cannot be against the goods of ambassadors . . not good without lawful warrant or commission . . ships taken by virtue of the same divests not the owners of their property , unless carried infra presidia . . , the causes precedent before the same are grantable . . reprizal ordinary and extraordinary by the lawes of england , . . persons exempt from the same , . . reprizals granted and they commit pyracy , they forfeit their vessel , . . captains of ships of reprizal commit pyracy , cannot oblige the owners for satisfaction . . request . ought alwayes to precede reprizal . . ●…etters of request allot time certain . . the same being made may sufficiently impower one nation to execute the judgments of another , . restitution . where the same may be made of ships regain'd from an enemy . . , restitution of ships where the same ought not to be done by nations in amity . . . restitution of the overplus , the debt and damages satisfied , . . restitution only to be made in that country whither the vessel is carried ▪ . scavage . what , and for what due , . . sea. princes may have an exclusive property in the same . . it is a common high-way , and such as are born on the same not aliens . . princes may have an exclusive property in the same . . subject to protection , and to be divided amongst men . . , sea inseparably appendant to the kingdom of england . . not without protection . . the british sea the dominion vindicated by king edgar and others . . british sea is the . seas . . kings of england have istum regimen exclusivè of the kings of france . . the importanee of the same to the crown of england . . the british sea ever belonged to the empire of this isle . . . the extent thereof , and the king of england's right on the same , how far agreed by the dutch treaty . . servitude or slavery . brought in by the lawes of nationt . . those that continue in that state can have nothing of their own . . . children are slaves , and the reasons that fi●… introduced that dominion . . refuge was granted by the jewes to such . . slavery become obsolete in christendome . . servitude in some respects may stand at this day . . a slave might be imprisoned at the will of his lord . . sheriff . may sell bona peritura of shipwrackt goods . . ships . in necessity may take goods from another by force of arms . . ships gain'd by an enemy in battail and regain'd , where the property is lost . . ships of warr retaking a prize from an enemy , restitution of the same where made ibid. fire - ships not subject to quarter . . ships where subject to an embargo by the laws of enemies . . . ships of friends freighted with the goods of enemies . . . ships taken by letters of marque ought to be carried infra presidia of that prince or state by whose subject the same were taken . . ships taken by a lawful commission , but the property not being changed , by the lawes of nations the persons may be questioned civiliter , but not criminaliter , . . . ships may be pressed for publique service . . , though the vessels of another prince in amity , be they private or publique . . , ships pressed ought not to be imployed but on publique occasions , . . the punishment of those that shall break the arrest . . newly built ought to make one voyage before the owners can part , . . king of england's ships are not to strike to any ship whatsoever generally , and when out of courtesie they may . . are to salute castles and ports of strangers , and how the same is regulated . . the commanders of them are not to salute their admiral or commander in chief after they have done it once . . second rate ships when they are to salute noble-men coming aboard . . their duties in salutations , . . , , ship taken in pieces and rebuilt is another ship ; but if ript up only to the keel , otherwise . . . ship repaired with another mans plank , who are the owners , . . by the sale of the ship with all her apparel and instruments thereto belonging , the ship boat passes not . . may be mortgaged in time of necessity . . the various way of freighting them . . perishes , the freight vanishes , . . ships encountring each other , how the damage is to be settled , . . not having two decks and guns , are to pay one per-cent . over and above the book of rates . . burning any of his majesties ships , the party to be punished with death . . the kings ships and their provisions not to be imbezelled , u●…r they by negligence or wilfulness destroyed . . the french ships are to pay s. for every passenger that shall passe in or out of this kingdome . . societies . they make but one body , and are to make but one single entry of their goods . . where their debt obliges each member , and where not . . , a bill accepted by one binds not the rest , though it may the party acceptor . . . superiours not responsible to inferiours by the lawes of nations , . . spies . lawful by the lawes of nations , how used if catch't . . . . . ships in that service not obliged to fight . . spoyl . goods may be as well spoyled as taken . . spoliatico , the difference between that and legalis captio . . the spoyl or prize is to be equally divided as well to those ships that are present , as those that attaque and enter . . states . may execute the judgments of each other . ult . but not in cases of life or honour , . ult . subjects . share in the indignity offered to their prince . . subsidy . on what it issues out . . how the same is governed upon woollen cloaths . . care. when to be allowed , and for what . . traytors . it is lawful to make use of a traytor , but not to make one . . . treason in an alien is to be tryed by the course of the common-law , and not per medietatem , . . treason out of the realm may be tryed within the realm . . . treason . is subject to be punished every where . . they are to be delivered up . . . if treason in killing an ambassadour . creaties . of truce for years settles a peace , and preserves the honour of each party . . less subject to a rupture then a peace . . breaches of truces how punishable , . . tribute . it is lawful to pay tribute to caesar , what is meant by the same , . . vide customes . tiumphs . their antiquity , use and advantage . . trust. a stock in a company is a trust , and is governed accordingly , . . tryals . tryal of warr must be by the records of courts , and not juries , . . tryals per medietatem their antiquity . . it matters not of what tongue , so the moyety are aliens . . . if both parties are aliens , then all are to be natural born subjects , ibid. may pray venire facias as well after the awarding the venire as before . . vacancy . gives a right to plant . . . civil vacancy what is meant by the same . . victuals . failing a shipboard , what every one hath a shipboard may be brought forth . . voyage . voyage when the same begins , . . trading voyage but one voyage , . . usury . advancing money on a contingency not within the statute . . usura maritima . what is meant by the same , . . want. that or plenty is the measure of things . . wart . when by the lawes of england , . . warr , the just causes of the same , . . injury or spoyl committed to persons or goods in time of warr , cannot create a cause for reprizal , . . an innocent person may be deserted and delivered up to death to prevent a warr . . if bound to deliver up himself , ibid. who are exempted from the sword in time of warr. . . in warr contribution may be paid to both parties . . warr introduces the greatest of evils . . the conditions that are requisite before the same be commenc'd , ibid. uncertain danger no cause for the same . . wharfes . which are lawful in london , . . wharfingers obliged to make satisfaction , for goods damnified or lost . . wines . of all sorts are to pay aliens duties . . words . lost or not lost , how those words are to be construed . . king and king , king and state , state and state , how to be understood . . , at and from the port of london how construed . . words that amount to an acceptance of a bill of exchange , . . wreck . in matters of wreck there is a contract between the party loser●… , and they that find the goods , . . punishment of those that steal the goods of shipwrack persons by the civil law . . if any thing escapes alive , no wreck by the lawes of england , ibid. the kings of england hath the same by their prerogative . . . . wreckt goods pay no custome , . . wreck of the isle of wight passe not without expresse words , . . the end of the table . some slips having happen'd in the printing this book in the author's absence ; he desires the reader to amend the same , and to allow him his favourable construction . notes, typically marginal, from the original text notes for div a -e lactantius , lib. . † seneca . de benesicijs , cap. . † leg. ut vim d. de just . & jur . n. . & . * vasquez . . controv. . . † florentius . p. tit . . sect. . leg. servus . d. de serv. export . * cicero offic . lib. . ex panetio . * coke . in●… . fo . . anno . vide knowls history of that monarchy . mirror , cap. . sect. . ed. . cap. . † vide cambden's q. elizabeth . anno . . . cambden . qu●…stus omnis indecorus patribus , sayes livy , lib. . dec. . though they had rostrated sh●…s , and gallies under caius duillus and his collegue , 〈◊〉 polybius observes . † cambden strabo lib. . gaules town near yarmouth the mart for those neighbouring marchants . abrabamus whelochus de priscis . anglorum legibus , written originally by mr. lambard . * inserted in leges edvardi , and afterwards confirmed by the norman conqueror . mr. selden's mare clausum , lib. . cap. the th to the . matthew westm. anno . ●…o . . selden mare clausum , lib. . cap. . * coke . in●…t . fo . . † inter leges marinas sub fine anno regni regis johannis . * cic. ad artic. l. . ep. . born in england , but resident at genoa . campanella histor. hispan : tempore eliz. regina angl. manil. pro oratat lege . and mr. serjeant calis must be so understood of the ancient civil and modern roman law reduced into one , and they are not now two lawes , one civil , and the other imperial , but onely one , that is , the imperial . vide his reading on the statute of sewers , sect. . fo . . the articles of enquiry annexed to them in ed. . the inquisition at quinborough , e. . anno . statutes of enquiry translated by roughton . selden tit . of honour , lib. ult . cap. ult . it is called imperium , 〈◊〉 cause it proceeds fro●… 〈◊〉 authority of the 〈◊〉 and not from any 〈◊〉 inherent in the party ▪ leg. . §. de const ! princ●… coke lib. fo . . 〈◊〉 case del marshalsea ! notes for div a -e justin. lib. . a theater is common , yet the place possessed by any one , may be rightly called his own . justin. lib. . ut de scythis loquitur trogus . primum inter homines mali nescia , & adhuc astutiae inexperta simplicitas . seneca naturalium . in fine . ne insignare quidem aut partire limite camp . fas erat . grotius de mari libero cap . † cic. offis . 〈◊〉 . addendum illud quintiliani ; si haec conditio est , ut quicquid in usum hominis cessit , proprium sit habentis , profecto quicquid jure possidetur , injuri●… aufertur . ma●… erobius saturn . lib. . c. . leg. . §. cum in eadem d. ad . leg. rhodani . quo non fragm . §. quod ait . d. incend . leg. quemadmodum §. item . d. ad . l. aquilam . , ed. . tit . distress . . . h. . . reniger & fogassas , plowden c. . to the . coke inst. sol . . bald , lib. . de rerum diversorum , seems to have been of opinion , that by the laws of nations one may take armes to abate the growing power of his neighbors . sed ut vim pati posse ad vim inferendam jus tribuat ab omni equitatis ratione abhorret : but that a possibility of suffering force , should give a right of offering of force , this is far from all equity , says the excellent grotius lib. . cap. . sest . . sir walter raleigh in hist. of the word cap. of duels so . . ●… e. . tit . scire facias . inter mortimer and th. earl of lancaster . xenoph. . de iustit . cyri. aristotle . polit. hujus modi res non tam capta quam recepta intelligitur , per d. per pomponius & l. leg. in bello parag. si quis servum in pr. de capt. & post . . r. . s. . . r. . trespass statham pl. . m. . jac. in b. r. brownlow . part . westons c. * consulatu maris c. . . constit. gallicae lib. . tit . . art . . . r. . trespass statham pl. . a res quae intra praesidia perductae nondum sunt , quanquam ab hostil●…us occupatae dominum , non mutarunt ex gentium jure . grotius de jure belli ac pacis l. . c. . b trin. . car. . in b. r. marshe's reports . c for this is not an absolute property immediately vested in the captor , upon the taking ; but a conditional property to answer the original debt or damage which cannot be done without a judicial adjudication , the oportunity of which he hath lost by bringing the prize into the country of another prince : for as to private war , their countreys are as an asyllum per leg . libertas , & de leg. jur. buistrod . part . f. . cited in marsh's case . the getting of letters of reprizal against a nation , does not make a war between both states ; nor can they be said to be at enmity . . e. . f. . r. . f. . . e. . . . e. . . . e. . f. . . r. . f. . . e. . c. . . h. . c. . which gives restitution by the chancellor , and one judge , and by the chancellor alone . hujusmodires non tam capta , quam recepta intelligitur : per d. leg. pomponius , & per leg. in bell●… par. si quis s●… vum in pr. de cap. & p●…st . per leg. postliminium , par. postliminio . de capt. & postli . boyce , and cole , and claxton , hill. , & . car. . in b. r. restitution made formerly by a french-man , who had regained an english prize out of the hands of a dutch-man of war. anno , . bell. angl. cum batav . this is jus belli & in republica maxime conservanda sunt jura belli , reg. f. . arresi . fact . super bonis meroator alie●…ig . some of old have held 〈◊〉 clericus , agricola & mercator tempore belli utroque collat commutet , pace fruuntur . co. . inst. f. . consul . maris . c. . hostis sit ille , & qui intra praesidia ejus sunt : let him be our enemy , and they that are with in his guards . liv. lib. , & alibi passim . gregor . lib. . romani nos honestissimus eas atque justissimus credimus possessiones quas belli lege captas habemus ; neque ver●… induci possimus ut stulta facilitate deleamus virtute monumenta , si eas illis reddamus , quibus semel perierunt : imo vero talos possessiones , non tantum cum his qui non vivunt civibus nostris communicandis ; sed & posteris relinquendas censemus : tantum abest ut partu relinquendo in nos ipsos ea constituamus , quae in hostes constitui solent : titus largus his opinion in the senate of restitution : vve romans believe those possessions to be most honorable and just , which we have taken by the law of vvar ; nor can we be induc'd by a foolish facility to part with the monuments of our valour , and restore them to those that were not able to keep them ; nor do we judge such possessions to be communicated only to our country , men now living , but to be left to our posterity : so far are we from relinquishing what we have got , and dealing with our selves , as if we were our own enemies . de veij idem in romulo narrat pluter●…us . 〈◊〉 hist. . . eliz. in c. b. owens report , fo . but q. of that case . grotius lib. . cap. . vide treaty . decemb : at london , art. the third , what is meant by goods contraband , or prohibited merchandize . cambden . vide anno , . plutarch . mursius in his danish hist. l. part . . vide tit. customs . . eliz. c. b. owen . vide the proclamation of holland to england , &c. bald. ad l. . c. de sev. n. . under the name of contraband may be comprehended arms only ; as pieces of ordinances , with all impliments belonging to them , fire-balls , powder , matches , bullets , pikes , swords , lances , spears , holberts , guns , mortar-pieces , petards , granadoes , musket-rests , bandaliers , salt-peter , muskets , musket shot , helmets , corslets , breast-plates , coats of mail , and the like kind of armature ; so for horses and other warlike instruments , v. marine treaty between eng. & holl. . decemb. , art . . so likewise it is ships , masts , and whatsoever shall be thought or asscertain'd capable of arming an enemy . bartol . l. nullus nunc . l. . de judaeis coelicolis . anno , or . vide r. cooke of the church's state in equal danger with the trade . reprisals are all one , both in the common and civil law : reprisalia est potestas pignorandi contra quemlibet , de terra debitoris datae creditori per injuriis & damnis acceptis vocabular utriusque juris . . e. . stat. . cap. . † leg. unica , c. ut null . ex vicanis . c. ne uxor pro mar . & ne fil . pro patre , totis tit . ulpian . leg. sicut sect . quod cuique universnom . et : singuli debebunt non tanquam proprium , sed tanquam publicem publici partem . seneca lib. : de benefit . c. . & cap. . * leg. nullam , c. de execut. & exactionibus . in nov. just. ●… . c. unico de injuriis in sexto . just. inst. de jure nat. baldus . cons. . bartol . de repress . q. . ad ter . num . . 〈◊〉 herod , to whom it was not lawful to make war against the arabians , might lawfully use pignoration . joseph . lib. . livy lib. . c. si sententiae c. . de sent. excom . in . constit . leg. qui restituere , de rei vindic . † magnacharta c. . the later clause . claus . johannis reg. m. . pat. . e. . part . , dors . . pat. . h. . part . . dors . , . fitz. h. n. bre. fo . . reg. . pat. rolls . . h. . par . . dors . . . . & m. ; , . par . . dors . . . e. . par . . m. . dors . & . machiavel on his tit. liv. c. a prince in this later age lost his country but for a load of sheep skins . leg. qui restituere . de rei vindicat . res judie . pro veritate habetur ; yet it is as true , judex male judicans pro injuria tenetur . et cum per injuriam judicis domino r●…mquae debitoris non fuisset , abstu . lisset creditor , quasi obligatum sibi ; & quaeretur , an soluto debitor restitui eam opporteret ; debitori scaevola restituendam probavit , leg. scripturam ss . de distr . pign . * verus debitor licet absolutus , sit natura tamen debitor permanet . paulus leg. julia. d de cond . indebtor . nulli ve●…demus , nulli negabimus , aut differemus justitiam , grand charter . coke . inst. . case of slaughter , lee against the governor of leighorn upon the petition of gould & canham merchants in nov. . on which two letters of request are gone to the great duke of tuscany , for redress . * after the massacre at amboyna , and the other depredations committed by the flemings , on the english his majesty in . issued forth his letters of request to the states of holland , for satisfaction within months ; otherwise letters of reprisal . vide journals of that year , and leo aitzma p. . . . . vid●… machiavel history of that war. mich. . e. . rott . . ( in thesaur . recept . regis in scac. ) coram rege florentia . vide rott . vasconie . e. . rott . . pro rob. draper & aliis civibus , corke in hibernia . rex facisne tu regium nuntium populi romani quirit . vaja comitesque meos . the embassadors of the romans being ill , used by the carthaginians , and scipio's army having surprized the embassadors of the carthaginians , was demanded what should be done to them , answered , not as the carthagineans have done to the romans . * vita autem subditorum innocentium , ut ex tali causae obligetur , sorte creditum fuit apud aliquo●… populos eo nimirum quod crederent unicuique hominum jus vitae plenum esse in se , & ad rem publicam potuisse transferri , quod minime esse probabile , nec savctiori theologiae consentaneum . grotius de jure belli lib. . cap. . ss . . and seems to be of opinion by the law of charity , that the prosecution of right for a man's goods , which inevitably must be by the life of man , ought to be omitted . lib. cap. . livy lib. . bartol . in leg. si quid bello d. de cap. ang. & salic . in leg. ab hostibus , c. de capt. const. gall. . tit . . art. . consul . maris . trin. . car. i. in b. r. marsh report . res qu infra praesidia perd●…ctae , nondum sunt quanquam ab hostibus occupatae , dominum non mutarunt , ex gentium jure . mich. . eliz. somers and sir ric. bulckleys c. leonard . part . trin. . jac. in b. r. rols fo . . sir francis moors rep. . jac : waltham , vers . mulgar . . eliz. cap. . . car. ii : called the act of navigation . gregorias l. 〈◊〉 . fitz. h. n. b. fo . . old. n. bre . reg. orig. fo . . * seneca benef. cap. . pat. . e. . pars . m. . dorso . pat. de an. . h. . pars . . 〈◊〉 m. . dorso . de caeteris personis arrest . & capiend . leg. servus . 〈◊〉 . de serv. export dd. ad leg. si quis in servitutem . d. de fur . leg. prohib . c. de jure fisci . bartol . in leg. ut vim . d. de just & jure n. . & . cicero offic. . the son of cato censorius , having served as a private soldier of pay under pompilius , the legion being disbanded , the young man was resolved to remain with the army , though but a volunteer ; cato wrote to pompilius the general , that he should give him an oath the second time ; giving this reason , quia priore amisso ; jure cum hostibus pugnare non poterat : cicero sets down the very words of cato to his son , whereby he admonisheth him not to enter into battle ; neque enim jus esse qui miles non sit pugnare cum hoste , cic. offic. . leg. desertorem . d. de rei milit . c. quando liceat unicuique , leg. & . this matter was highly debated at the councel board on the complaint that of landy then embassador for that republique , at london an . . vide hist. republic . venet. fo . . treaty marine at lond. . of decemb. . in the commission must always be mentioned that they have given such security . art. . these articles for their excellency are fit to be a standard to all the nations of europe . art. . in hostium esse partibus , qui ad bellum necessaria hoste administrat . consulat . maris editus est lingua italica , in quem relate sunt constitutiones imperatorum graeciae , &c. cujus libr●… tit . . cambden an , . by the fourth article at the treaty at lond. , those goods that may be used out of war as in war , ( exceptships ) may not upon any account be call'd prohibited , nor subject to a condemnation , except carry'd to places besieged . art. . see john meursius his danish history concerning the prohibiting of goods by those northern state. vide postea , the grand prise condemned by queen elizabeth in tit . customs . and persons so attempting to releive an enemy , may in some cases be punished ; but if the same be done by necessity of obedience , though the parties are much to be blamed , yet are they not to be punished ; and so it was with those which releived sir john old-castle , with provisions , being taken , were discharged . by the . article in the treaty at london , if the skipper will deliver out the prohibited goods , the ship may proceed with the rest in their voyage or course , as they please , and the ship shall not be brought into port. nec reus est mortis alienae , inquit augustinus , qui sui possessioni murorum ambitum circumduxit : si aliquis ex ipsorum usu percussus intereat . publ. epist. . leg. . de n●…viul . c. lib. . trin. jac. in b. r. rolls . p. abridg. f. . pompon . leg. cum loca d. de religiosis . tacitus anal. . wars and victories most part consist in taking and overthrowing cities , which work is not done without injury of the gods , the walls of cities and temples of the gods partake in the same ruin , the citizens and priests equally slaughtered ; nor is the rapine of sacred riches and prophane unlike : so many are the sacriledges of the romans as their trophies , so many are their triumphes over gods and nations : and then goes further , tot manubiae quot manent adhuc simulachra captivorum deorum . mox & bene , quod si quid adversi urbibus accidit , ●…dem clades templorum quae & moenium suerant . even upon the same reason , that the instruments of husband-men are not to be taken for a pledge by the civil nor common law. leg. exeunt . c. quae res pign . coke sup . littleton . 〈◊〉 . cor. . . if the offenders could be found , they ought to be yeilded up to justice ; and if they have any estate , the s●…me ought to go towards the reparation of the dammage . caution is commonly taken upon the giving forth of such commissions to prevent the same , if possible . they are generally restrained by proclamation when a war breaks forth , and commanded , that none presume to set forth , without a commission . constit galliae tom . tit . . constitutione ●…nni . cap. . vide etiam tom . conconstit . tit . constit . anni ●… . cap. . vide ●… . art. at the treaty at breda between england and holland , and the . article in the marine treaty at lond. . † trin. . jac. in b. r. rolls f. . vide sir francis m●…ores reports , jac. waltham versus mulgar●… leg. hostes de verb. signif . leg. hostis de captivis . tacitus annal. . c●…sar lib. . de bello civ . hist. republ. venice f. . ss . ad legem rhod. de jactu . l. . §. si navis a pyratis redemptae . leg. bona sides . d. expos. on a commission grounded on the stat. awarded . rott . admir . . eliz. m. . rott . adm. anno . eliz. m. . normandy was lost by king john , and out of the legeance of the king of england , & they were as now accounted aliens . . assise placet . p. shard . vide h. cap. . selden mare claus. lib. . cap. case of reginor grimbald in tempor . ed. cited in . inst f. . in c. of the admiralty . injicere manum parcae tra●…erunt debitum sibi , & sermone usus est juris ; nam manus injectio dicitur , quoties nulla judicis a●…ctoritate , rem nobis debitam vindicamus . servius ●… . aeneidos . leg. extat . d. quod metus . honorius & theodosius : idcirco judiciorum vigor jurisque publici tutela in medio constituta , ne quis quam . sibi ipsi permittere valeat ultionem . leg. nulli c. de judaeis . plutarch in caesar. ralph williams indicted for the murder of one john terrey , and bridges , black , and others , as accessory . rott . admir . eliz. m. . yel . f. . res quae intra praesidia perductae nondum sunt , quanquam ab hostibus occupatae , dominum non mutarunt ex gentium jure . grotius de jure belli ac pacis cap . §. . † trin. car. in b. r. marsh's reports . * leg. hostes & leg. latrones d. de cap. leg. postlim . a pyratis eod . tit. the caption was in , 〈◊〉 adjudication passed of may , upon which there was an appeal to the duke of york ; but nothing came of it . rott . a●…r . in an . supradict . a bulstrod . . part . fo . . . case of samuel pellagy . b grotius de jure belli ac pacis lib. . cap. : §. , & . c mich. jac. in b. r. brownlow . part . westons c. co. . inst . lib. . f. . . caleys c. but black maile & such sorts of taking in cumberland northumberland , and westmorland was felony . . eliz. cap. . * ss . nautae caup . l. . sect . . stabe glanvil . lib. . cap. . . e. . . nautae caup . stab . lib. sect. . sect . recepit . co. . inst. , . . e. . . . h. . . §. ad leg. rhod. de jact . l. . §. si navis a pyratis redempta sit . . e. . cor. . trin. . jac. in b. r. rolls acridg . . constit. galliae tom . . tit . . constit . anni . c. . vide sir francis moore reports waltham vers . mulgar . leg. . sect . cum in eadem ; d. ad l. rhod. leg. quo naufrag . §. quod ait d. de incen . leg. quemadmodum , sect . item . d. ad leg. aquiliam . . h. . cap. . per leg. pomp●…nus de acqu●…el dom . per leg. mulier ea . cap. & post . e. . c. . sigonius de jure rom. l. . cap. . mich. . jac. in b. r. sir richard bingly's case . roll's abridgement 〈◊〉 . . moore . but if the party be attainted before the admiral , and not before the commissioners , then there is no corruption of blood or forfeiture of lands ; quod nota co. inst. . hyde and others robbed the ship of captain slu●… of the merchandize of one mr. mors , a merchant in london ; and they were indicted for it at the common law , and were found guilty of the same . anno . car. . sir francis moore . . jac. par . . and the same was so ruled by the opinion of sir lyonell jenkins , and the rest of the lords the judges , upon the pyracy committed by cusack and others , and denyed ; and he was afterwards executed anno . vide . e. . cor. . . h. . . . e. . . cited in cokes . inst. fo . . . eliz. butlers case cited . inst. fo . . marsh's case jac. in b. r. bulstrod fo . . * yelverton , . scadings case , tench versus harrison b. r. styles , . † . e. . par . . dors. . de audiendum & terminandum mercatoribus super mare depredatis . pat. . e. . m. dors. the case of will. de dunstaple a citizen of winton . pat. . e. . m : . dors. pro willielmo perin & domengo perez mercatoribus . ●…vestein . see that plea of chizzola for the venetian soveraignity of adriatique sea , at the end of mr. selden . the substance of what was alleadged by the hansiatique towns , at the venetians asserting of the soveraignty of the adriatique , inter res communes , uti ipsi imperator numerat mare , & ideo nemo in mari piscari , aut navigare prohibitur , & adversus inhibentem competit actio injuriarum , l. . si quis in mare , l. injuriarum , sect . ult . de injuriis . sin littora quoque communia sunt , l. . re divis . quia accessorium sunt maris , & accessorium sequitur naturam principalis , l. . de peculio . legat . c. accessorium de reg . jur . in . ad littus maris igitur accedere quivis potest , non piscandi tantum gratia , sed etiam aedificandi & occupandi causa , l. quod in litt . de acquir . rer . dom. l. in litt . ff . nequid in loc . pub . jo. angelius i. c. de respub . hansiat . par . . f. . edit . francof . an . dom. . but these arguments were easily answered by the venetian lawyers ; quemadmodum communio literorum restringitur ad populum , a quo occupata sunt , lib. . sect littora d. de . quid in loc . pub . ita etiam communio maris : adeo ut per mare a nemine occupatum navigatio sit omnino libera : per mare autem occupatum ab aliquo principe ii liberam h●…beant navigationem qui sunt illi principi subjecti ; alii vero catenus , quatenus idem ●…rinceps permittit . julius pacius de dom. maris adriatici . * grotius mare liberum . communio parit discordiam quod communiter possidetur viti●… naturali negligitur : habet communio rerum gerendarum difficultatem , leg. pater . §. dulcissime . leg. . * quae omnia fore gallis erant incognita , neque enim temere praeter mercatores adi●… ad illos quisquam , neque eis ipsis quidquam praeter oram maritima●… atque eos regiones quae sunt contra gallum , notum est . com. gall. bell. lib. . fol. . m. . * galls town near yarmouth , being then , as is conceived , one of the common places of mart or commerce for the galls . quod omnibus fere gallinis hostibus nostris inde sub ministrata auxilia intelligebat . tacit. in vita agricol . altitonantis dei largi-flua ●…ementia , qui est rex regum ; ego edgarus anglorum basileus , omniumque rerum insularum oceani quae britanniam circumjacent , cunctarumque nationum quae infra eam includuntur imperator & dominus , ex charte fundam . eccles wigor : sir john burroughs fo . . idem quoque edgarus . naves congregavit , ex quibus omni anno post festum paschale . naves ad quamlibet angli partem statuit ; sic ●…state insulam circumnavigavit ; hieme vero indicia in provincia exercuit , ex ranulph . cestrens . fo . j. b. † so fully proved by mr. ●…elden , that it would be impertinent in this tract to rehearse the authorities he vouches . vide jac. usserius armach . epistg . hiberniae silloge p. , . inter leges marinas sub fine anno regni regis johannis secundo , entitled le ordinance al hastings . november . le ab atzma . fo . . september . december the . s. v. † but now by the last treaty at westm : the dominion is ascertained from cape finisterre to the middle point of the land van staten in norway , feb. / . artic. . in the treaty of nov. . † hill. eliz. b. 〈◊〉 . the queen and sir john constables case . leonard . part . selden de dom. maris l. . cap. . , . cooke . inst. fo . . a universal consent of all nations . . instit. . seldencap . mare clausum . sir john burroughs fo . . anno . leo ab aitzma hist tract . pacis belgi pag. . edit . lugduni batavor . quarto . it is no policyto attempt the change of old customs and usages , even errors & abuses are up on such an account legally tollerated . in omnibus rebus vetustas ipsa plurimum habet dignitatis : ita ut massalienses quorum praestantissima creditur fu●…ssa respublica , laudentur to nomine quod gladio ad puniendos sontes usi sint , eodem a condita urbe quo indicarent in minimis quoque rebus antiquae consuetudinis momenta servanda . proxime enim ad demum accidit antiquitas , aeternitatis quadam imagine . grot. de antiq. rep. batav . in praefat. ceteris mortalibus in eo stare consilia , quid sibi conducere putent : principium diversam esse sortem , quibus praecipua rerum ad summam dirigenda . tacitus annal. l. . † vide the earl of shastsbury's speech to the parliament . si fama tua videtur necessaria , rectam muneris tui administrationem non potest condonare . lessius de inst. l. . c. . dub . . §. . selden mare clausum l. . cap. . fitzherberts protection tit . . seld. ibidem c. . co. . iustit . fo . . vide part of the record in fo . . and the case eliz. in b. r. sir john constables , leonard . part , the reason of the opinion there is mistaken : for the right unto the sea ariseth not from the possession of the shores ; for the sea and land make distinct territories , and by the laws of england the land is called the realm , but the sea the dominion ; and as the loss of one province doth not infer that the prince must resign up the rest ; so the loss of the land territory doth not by concomitancy argue the loss of the adjacent seas . i is no more necessary that every sea town should command miles at sea , then that each city should command miles by land. julius paucius de dom. maris adriatici . anno domini . anno domini . anno domini . will. fulbecks pandects of the law of nations c. . the king against sir john byron bridgman fo . , , . vide postea in chap. of customs . june . anno . selden lib. . cap. . alber. gentil . hisp. advocat l. . c. . vide mr. secretary , cookes letter to sir william boswell april , . * the fight of the dutch with the spanish fleet , in the . downes scilicet hoc factum hollan . dorum est contra justitiam omnem pro certo : & contra reverentiam qua partibus & territoriis debitur alienis . al●… . gent. hisp. advocat , l. . . . anno domini . jun̄e and . about the of ●…g . , † offered to queen eliz. cette-cy entre autres merite bien une consideration speciale , que la conjunctiondesdits pays de hollande , zelande , frize , & des villes de l'escluz , & ostende in flandres , avec les royaumes de vostre majesté , emporte & soit l'empire de la grande mer oceane ; & par consequent une asseurance & felicité perpetuelle pour les subjects de vostre serenissime majesté , john stow supplement to holling shed . an. dom. . vide sir walter raleigh lib. . cap. . §. & . enna , aut malo aut necessario facinere retenta . livy lib. . * f. de navibus non excus . c. l. tit . . and pekius on the same law. quidni enim ( inquit cicero ) quando scire detremento sue potest , alteri communi●…t , in iis qu●… sunt accipienti utilia , danta non molesta . . de offic. . * de expeditione cyri. ed. m. . . * ed. . rott . . in the exchequer . e. . in the black-book of the admiralty p. and . joh. m. . . joh. m. . . ed. . m. . r. . m. . rot. franc. de offic. admiral angliae per roughton artic. . the black-book of the admiralty . fo . & , . . r. . c. . cro. arg. of hampdens c. called the ship money c. fo . to . spelmanni cnocil . tom. fo . , . spelmanni fo . expeditio navalis . rot. scotiae e. . m. . to . and then to . intus & dors . to . eliz. cap. . vide stat . car. i. c. . & p. m. c. . vide sir henry spelmans gloss. in tit . admir●… lambert archeion tit . admiral . fo . . exodus . . inst. de jure person . §. servi autem . gell. l. . c. . tacitus . co. 〈◊〉 . inflit. fo . . e. . memb. . rott . pat. e. . m. . ro. sin . e. 〈◊〉 . num . . ro. pat . h ▪ . ro. cla. indors . vide the case of bates , in lanes reports fo . . co. . part . case of souldier . vide the . institutes fo . . and the stat. of which provides punishment for those watermen , which shall hide themselves , does evidence what the common law was as to the right of pressing which certainly would never punish those whom they could not press . † aprilis e. . in the black-book of the admiralty , , , art. and fo . . art. . the black-book of the admir . f. . lamb. inter leg. edovardi f. . car. . cap. . † non solis ducib●…s aliisque p●…tentibus innasci solet , atque immorari bene agendi propositum , sed cuique volenti & licet & honestum est ejus qua vivit re●…publicae mali commoreri , & publicas utilitates pro suis viribus promoveri vide grotius l. . c. . † that is as to entitle him to clergy , and so it was ruled by all the judges in b. r. m. car. . in the case of one — found specially at surrey assizes before mr. justice twisden , who slew the adulteror in the very act . vide august . civit. dei citatum . c quicunque . causa qu. . an. . eliz. co. litt. f. . code justin. tit quando liceat unicuique it was in force in england till the beginning of the reign of edw. ds . time . co. inst . b. h. . fo . , . h. . fo . . jugurtha taken by his father in law bocchus , and delivered to the romans ; charles the th . of france , at a personal treaty with duke of orleans , 〈◊〉 slew the duke though a soveraign prince . meyer l. . phil. comines lib. . c. , . * as that between edward the th . and lewis the th . in the territories of the duke of burgundy . vide aemilius paulus in history of france ; and ferron his supply of the same of the life of the duke of orleans , afterwards lewis th . upon the failer of issue male of charles the th . julius ferretus de legatis principium , & de 〈◊〉 side & 〈◊〉 . † the leagues between the crown of france and spain , are commonly between kings and kings , realm and realm , and man and man of their subjects , and hath in time past been look●… upon to be the firmest of alliances phil. comines lib. . cap. . e. . . a. the league then made with the scots , and likewise between ed. th . and the duke of burgundy . phil. comin . lib. . c. . * rot. pat. . h. . num . . coke . inst. . treaty of cambray , the confederates of which were pope ▪ julius the d . the emperor , king of france , spain and arragon , anno . vide history republique of venic ▪ so . . sed ut vim pati posse ad vim inferendam jus tribuat ab omne equitatis abhorre . grotius de jure belli & pacis lib. . cap. . §. . league of union between his majesty of britain concluded at the hague , with the states general of the united northerlands january ●… / anno . but a defensive war is unjust on his part who gave just cause of war. pontius samnis after restitution made to the romans , and the author of the breach yeilded up expiatum ( saith he ) ex quicquid ex soedere rupto irarum in nos caelestium fuit . satis scio quibuscunque dii cordi suit subigi nos ad necessitatem cedendi res , iis non fuisse cordi tam superbi a romanis foederis expiatio●… nem spretam : and a little after , what more do ●…ow to thee , o roman ? what to the league ? what to the gods , the judges of the league , whom shall i bring unto thee to be the judge of thy anger and of my punishment ? i refute no people , nor private men. † anno . vide sir rob. cocten remonst . of the treaties of amity and marriage . an. . vide sir robert cotton remonstr . of treaties . andr●… mauro●…eni hist. ven. † if one part hath violated the league , the other may depart from it : for the several heads of the league have every one the force of a condition ; so grotius conceives lib. . cap. . 〈◊〉 . . soluti foederis culpam s●…stinent , non qui deserti ad alios se conferunt , sed quicquam jurati promiserant opem re non pr●…stant . alibi apud eundem si vel tantillum ex dictis pars alterutra tra●…sgrederetur rupta fore pacta . thucyd. lib. . e. . vide stat. . h. . cap. . hill. . eliz. in the duke of norfolk's case . . inst. fo . . † in fidelitat●… feudali dicitur ; et si scivero velle te aliquem juste offendere , generaliter vel specialiter fuere requisitus meum tibi , sicut potero praestabo auxilium . orat. demosthen . de megalopoli . * nihil intercedi , quo minus samniti populo pacis bellisque , liberum arbitrium sit . liv. lib. . grotius de jure belli ac pacis lib. . c. . §. . in fidilitate feudali dicitur : et si scivero velle te aliquem juste ostendere , & inde generaliter vel specialiter fuero requisitus meum tibi sicut potero praestabo auxilium . demosthenes orat. de megalopoli . equals cannot directly refuse war , nor demand peace . liv. . polybius in excerptis legationum . vvhen edw. the th . was chased out of the kingdom , and henry the th . was set up again ; yet by reason there was incerted into the same , these words ; viz. with the king and realm , that the league did remain perpetual . phil. comines lib. . c. . ulpian . leg. jure ▪ gentium , sect . pactum . d. pactis . adde qua helvetiis causantur post mortem henrici . apud thuanum , lib. . in an. . vide & insignem locum apud cambdenum in anno , ubi de foedere antiquo gall. & scotis . a quintus said to nabis , vve have made no friendship nor society with thee , but with pelops the just and lawfull king of the lacedemonians . b hen. . cap. . c e. . . . e. . . inst. f. . ed. . in an. . phil. comines l. . c. . reges qui regnis ex uti , sunt , cum aliis regni bonis etiam jus legandi perdiderunt . peter mathew history of france in the life of henry the third . vide peter mathews hist. of france in vita hen. . in regno diviso gens una , pro tempore quasi duae gentes habentur : and princes are to have an eye to the power which each kingdom hath to afford benefit one to the other , and not to examine their titles . andronicus post rhodius aristotelem , amicitiae inter partes , hoc ait proprium ut potentiori plus honoris infermori plus auxilii deferatur . in grotius lib. . cap. . §. . num . . it is the property of friendship 'twixt unequals , that the stronger have more honour , and the weaker have more help : proculus adds that such a clause is incerted in the league , to signify the one is superior in authority and dignity ; for both are free , but are sub patrocinio , non subditione . livy lib. . cicero offic. . leg. non dubit . d. de cap. the genoeses having put themselves in the protection of the french king , revolted ; he thereupon changed their conditions into priviledges , to the end it might be in his will to deprive them when he should think fit . vide cardinal . thuse . p. p. ●…oncl . . this holds as well between leagues equal 〈◊〉 equal . 〈◊〉 de jure 〈◊〉 ac pacis li●… . ▪ cap. . 〈◊〉 〈◊〉 this hath the same right in leagues that are equal . nam ut quis ultionem sumat ab eo qui peccavit satis est ut ipse ei qui peccavit subditus ▪ non sit . grot. de jure be●…i lib. . cap. . §. . n. . but that proves not any power of commanding , for princes do usually try their causes before judges of their own choosing . 〈◊〉 . lib. cap. . §. . n. . decet eos qu●… foederis principes sant circa suas quidem utilitates , nihil praecip●… sumere ; ●…t in communibus rebus curandis emiueresupra caeteros in orat. corinthiorum . oldradus cons. . gregorus perjurum deo culpam impingit negligenti●… ▪ upon the wo●…s e●…ing and eu●…g , to retain the l●…grave of hesse . famous was the answer of the carthaginians senate to the romans , upon the assaulting of saguntum ; ego non privato publicove consilio saguntum oppugnatum , si quaerendum censeo ; sed utrum jure an injuria ; nostra enim haec quaestio atque animdversio in civem nostrum , est nostrum an suo fecerit arbitrio vobiscum una disputatio est , licuerit ne per soedus fieri ; whether saguntum was assaulted by private or publique councel , we conceive it not to be made the question ; but this , whether it was assaulted justly or unjustly , for to our selves an account is to be given by our citizens , whether it did it of himself , or by commission ; with you alone this is dispensable , whether it were a violation of the league , or no , livius lib. . † grotius de jure belli ac pacis lib. . ch . . §. . in fide quid senseris non quid dixeris cogitandum . cic. de offic. . in l. non possunt . d. de legibus . vide exemplum in l. cum virum . c. de fidei commissis . grotius lib. . cap. . §. . in the truce that was made between edw. the th . and lewis the th there was like provision made for charles duke of burgundy , but he refused , and concluded a peace for himself a part , being angry with edw. the th . for making the same , philip. com. lib. . c . so lewis the th . concluded a truce for nine years with edw. the th . when he had invaded france , phil. com. lib. . cap. . * for the right remains with him : how ever , he hath lost the possession . grot. de jure belli ac pacis lib. . ch . . §. . h. . cap. . h. . cap. . † and at the the lords of request of and commons was pardoned , he making satisfaction for the losse . h. . ad parliament tent quenden hill. vide cotton abridgement . e. . . b. h. . ca . h. . cap. . e. . . b. maxime . rott . scotiae de an. e. . m. . intus de puniendo illos qui contra formam treugae hominibus de scotiae concess●… deliquerint . much practised by the free princes and states of the empire . † an. consul quintus ad achaeos , quod optimum esse di cant non inter●…erponi vos bello : imo nihil tam alienam rebus vestris est : quippe sine gratia , ne lignitate praemiu●… 〈◊〉 eritis . lucius lib. scripta ammirat disc . polit . l. . disc . polit . pompon . leg. si quis . d. de lecationibus . livy lib. . . kings conquer ed in a solemn war , and deprived of their kingdom with other royalties , loose the right legation . p. aemilius detain'd the heralds of perseus , whom he conquered . † p. poole a traitor , fled to rome , the pope sent him ambassador to the french king , of whom the king of england demands his subject , sed non praevaluit . co. inst. . fo . . rot. pat. . r. . num . * legatus ejus vice fungitur a quo destinatur , & honorandus est sicut ille cujus vicem gerit , & legatos violare , contra jus gentium est . ●… assize pl. . note , this was years before the making of the stat. of e. . quaere if such a prorex is within the stat , at this day . cambden ●… quaestionum ibi pro posticarum quarta . daniels hist. of henry the second . carolus quintus imp. galliae venetorum & florentinorum ad bellum sibi indicendum missos d●…duci jussit in locum qui a comitatu sno abesset , triginta millarum aria , guic. l. . bellaius lib. . † card. arnold . ossat in his epistle . coke . iust. . menander protector justino imper. avarorum legatos contra jus legationum in vinculis habuit cothmannum resp. . num . . co. inst. . . . h. . cap. . h : cap. . * quanquam visi sunt commisisse ut hostium loco essent , jure tamen gentium valuit : † fit reus magis ex equo bonoque quam ex jure gentium , bomilicari comes ei qui romam fide publ . venerat . an enemy is boundtowhom they are sent , 〈◊〉 their pri●…ge oblid●… 〈◊〉 those 〈◊〉 whose 〈◊〉 th●… 〈◊〉 without leave . for if they go to , or come from their enemies , or make a●…y hostile attemp●… they may be slain . livy lib. . grotius de jure b●…li ●…c pacis lib 〈◊〉 cap. §. . n●… . & . senatus faciem secu●… attulerat auctoritatem reip m. tullius . * co. inst. . f. . sic carolus quintus legato ducis mediolanensis ut subditi sui imperavit , ne a comitatu suo ab●…cederet , guicciardi indicat jam loc . hill. eliz. bishop of rosses case co. . inst. ●… . august . de leg. antiq. rom. acta tride●… concilii . pompon . leg. ult . d. de l●… patis . benedict . in vita henr. . 〈◊〉 colloquium machiav . lib. . cap. . rott . scaccar . westm. claus. edw. primi . bulstr. . part . fo . . cited in marshe's case . sir henry woot on fo . . stat . cris. vide sir robert cottens posthum . and the proposit. to k. james . the opinion of the lord coke . inst. , &c. hobart f. . * distingui ferme ac in re solent crimine . vide ●…utam l. . ubi rex galliae hans ab causam ●…ratus ●…acatur . vide euadem lib. . † grot. de jure belli ac pacis l. . §. , , , . rex facisne metu regium nuntium populi romani quiritum vasa comitesque meos : yet an ejectment hath been brought and left at the house of the ambassador , and it was allowed good , and conceived no breachof their priviledge in the case of monsieur co●…bert , for york house . mich. car. . in banc. reg. † grot. de jure belli ac pacis lib. . cap. . * co. inst. . . certain it is that none dareth presume to meddle either with their persons , goods or servants , without leave had , the contempt of which has been punish'd with imprisonment . barkseate in memor . grotii . † bodinus de repub. l. . * jac. aug. 〈◊〉 l. . ●…ta augu●… barbadico 〈◊〉 of vec 〈◊〉 . . paulus par●…ta in hist. venice lib. . zeno interceeding for the magnets to t. quintus , and the legates , with him besought them with tears ; ne unius amentiam civitati assignarent , suo quemque periculo facere . livy lib. . for the knowledge of the cause ought to proceed the dedition ; non decet homines dedere causa non cognita plutarch in his romulus . attainted by act of parliament h. : co. inst. f. . h. . vide lord herberts hist. of henry the eighth . pipin receiv'd and would not deliver up those that fled to him out of newstria , opprest by tyranny . frededegar . in reb . pep . an . . * yet out of churches beyond seas for private offences , which are universal sanctuaries , the offenders have been taken out in lusitania , ferdinand lord chamberlain was taken by force out of the church and burnt , for forcing a noble virgin. mariana lib. . charles duke of burgundy delivered up to lewis the th . the earl of st. paul , constable of france , who flying to some of his own cities , obtained letters of safe-conduct to come and commune with the duke , in order to the making his peace with the king , but the duke after he had him in custody , delivered him to the king of france , who immediately after cut off his head . phil. comines lib. . c. . † ludovicus pius , the emperor , received those that fled to him from the roman church , as appears by his decree anno . and luther himself did not want princes to protect him from the fury of st. peter's chair . vide his colloquiums printed in london an . . livy : vide sir walter raleigh lib. . cap. . 〈◊〉 . . elizabethae cambden f. . vide cambd. anno . an. . that politik princes gave the scots a more equitable answer , when they demanded bothwell , she answered , that she would either render him up , or send him out of england , cambden annh . hist. rep. ven. in vita tebastiano cynei duke of venice an. . phil. comines lib. . cap. . idem de finibus vir bonus & sapiens , & legibus parens , & civilis officii non ignarus , utilitati omnium plus quam unus alicujus aut suae consulit . and in livy there is a most excellent saying of some molosians , equidem pro patria qui lethum oppetissent saepe fando audivi : qui patriam pro se per●…e aequum censerrent , hi primi inventi sunt . livy lib. . † leg. desert . * co. inst. . fo . . plutarch phocion . fides agi visa deditos non prodi . livy lib. . satius judicemus esse paucos aliquos mala ferre , quam immensa●… multitudinem . the son of pompey was so worthy a son of so great a father , that he contended with anthony and augustus , about the empire of the world ; this pompey entertaining anthony and augustus in his gally ; the captain which commanded it , demanded leave of him to weigh ancor and to carry away his guests , and to make prisoners of his rivals : he answered him , that he ought to have done it without telling him of it , and should have made him great , without having made him forsworn : certainly , an honest person will never be of the mind of this captain ; therefore in such extremities , councellors either for high advantages , or in the great necessities of their prince , should serve their masters with their estates and goods , but not with their honour and conscience . rott . rome a●… e. 〈◊〉 . m. ▪ dorso . rott . rome e. . m. . dorso . claus. . e. . m. . dors●… . pro rege . * deut. . matth. . . † coke . inst. fo . , . procopius in the third of gott●… . of totilas , when he beseiged rome , saith , agricolis interim per omnem italiam nihil mali intulit , sed jussit eos ita , ut soliti erant terram perpetuo , securos colere , modo ut ipsum tributa perferent : this , saith cassiodore , is the greatest praise , . . * h. . . † e. . : h. . . 〈◊〉 . inst. f. . † exemplum nobile vide apud pautam lib. . grotius lib. . cap. . * grotius de●… jure be●…i ac pacis l. c. . jure hoc evenit ut quod quisque ob tutelam corporis sui , 〈◊〉 fecisse existimur . † leg. ut vim . d. de just . & jur . * and that is apparently evinced , by the laws of leagues ; for such being made , the same remains although the same king , or his successor be driven out of his kingdom , for the right of the kingdom remains although he hath lost the possession . grot. de jure belli ac pac●…s l. . c. . §. . in reipublicam idem est nimium , & nihil mereri . procopius hist. vandall , in vita bellis . vide sir walter raleigh l. . c. . §. . and in that whole paragr . the ingratitude that hath been shown by princes to many a brave and noble general & commander , there particularly enumerated . de castrensi peculio , & c. demit . l. . c. de errogatione ●…ilitaris an●…onae , & c. de ●…est . militari . car. . cap. . artic. . * by orders of his royall highness . artic. . artic. . livy lib. . cap. §. ult . ad leg. corn. de ●…icariis pun . stat. . car. . cap. . art. . artic. . ad leg. corn. de siartis pun . tacit hist. . bartol . leg. nullus . leg. . de judaeis caelicolis . procopius goth. . stat. : car . cap. . art . . artic. . leg. naturalem §. ult . d. de atq. rerum dom. tit . de rerum div . * by the donation of his majesty . artic. . artis . . hist. repbl . venet. fo . , . artic. . croesus perswading cyrus not to give up lydia to be pillaged by his men , tels him , non mean●… , inquit , non res meas diripes , nihil enim ad me jam ista adpertinent : tua sunt , tua illi perdent , herod . lib. . * victor . de jure belli n. , & . † d. & c. de juris & facto ign . princes indeed are gods , but neither do the gods hear the prayer of suppliants , except they be just . * the syracusians were accused for that they slew the wives and children of hycetas , because hycetas had slain the sister and son of dyon . plutarch , timon , & dione . † in england when the admirall would have the van of the fleet to tack first , the admirall did generally put aboard the union-flagg , at the staff on the fore-top mast-head ( that was when the red flagg was not abroad . ) but if the red flagg had been abroad , then the fore-top-fall was to be loared a little , and the union flagg was to be spred from the cap of the fore-top-mast downwards . when the reer of the fleet was to tack first , the union flagg was put abroad on the flagg staff of the mizon-top-mast-head , upon which two signals the flagg ships were to continue the same signals on their ships , till the same was answered : when the admirall would have all the ships to fall into the order of battle prescribed at the councell of war , the union flagg was put on the mizon peake of the admirall's ship , upon sight of which the admiralls of the other squadrons were to answer it by doing the like signall , when the admirall would have the other squadrons to make more saile , though himself shorten saile , a white ensign was put on the ensign staff of the admirall's ship : instruction first of may . but yet signals may be altered or changed as often as it shall please the admirall to think the same necessary and convenient . lipsius de mil. rom. l. . dial . , & . and polybius expresseth the oath thus , obtemperaturus sum , & fact●…rus quiquid maendabitur 〈◊〉 ad imperatoribus , juxta vires : and such , saies he , were termed milites per sacramentum . xenoph. cyr. plutaroh quaest. rom. , & marcello . vide in tit. ships of war. † leg. desertorem . d●… de re milit. * livy lib. . manliani imperia . the order of battle is to be preserved , and in all cases they are to endeavour to keep in one line as much as may be ; and though they have beaten some of the enemy , yet must they not pursue a small number , before the main of the enemy be bearen or run . nor ought they in chacing , chase beyond sight of the flagg , and at night all chacing ships are to return to the flagg . just. , in . may . * hist. of the reipub. of ven fo . , . artic. . artic. . cicero offic ▪ , & . grotius de jure belli ac pacis lib. . cap. . §. , . misericordia infortuniis debitur : atqui deliberati scientia male agit , non infelix , sed injustus : and cicero hath a saying out of demosthenes ; we must shew compassion to those whom fortune , not their own deeds have made miserable . scipio aemilianus at the overthrow of carthage , proclaimed that they should fly that would . polybius , vide tacitus annal. . vide serran . in reb franc. . & hen. thueyd . lib. . * caesar l. de bello gallico † dinand in germany , being taken by assault , the town was raised and burnt and the prisoners all put to death . vide phil. comines lib. . cap. . i will defend my companion at the cost of my own blood , and partake in his danger . senec. de ben. . . artic. . but that is to be understood as in the xii . §. of this chapter . † tacitus . annal. pompeius gravior remediis quam d●…licta erant . † grotius de jure belli ac pacis lib. . cap. . §. * . de clem ▪ cap. . in vita c●…milli liv. lib. , & . † grotius de jure belli ac pacis l. . c. . who observes that many pretences may be found out against men of mature age , but against infants , calumny it self can find nothing to say , as being cleerly innocents . * herod . in vita maximin . fo . . papin . nullie violabilis armis turba se●… nes . vict. d. loca . sam. . . . sam. . . lord coke's comm. on cap. of magna * charta fo . . c. de treuga & pace . † vide . inst. fo . . & trin. e. . coram rege rot. . leg. execut . c. quae res pign . * de benef. . cap. . † livy lib. . the same saith julian in ni●…etas . * grot. de jure belli ac pa●…is l. . c. . † . de ira cap. . quicquid multis peccatur inul●…um est . magis monendo quam minando : sic enim agendum est cum multieline peccantium severitas au rem exercenda est in peccata pauc●…rum . gailium de pace pub . lib. . cap. . . † vide grot. lib. . cap. . §. . * victor de jure belli●…n . . lib. . artic. . artic. . artic. . art. . grot. de jure belli ac pacis lib. . cap. . §. * leg. transfug●…m d. re ac●…reúm dom . polyb. in excerp . legat. . . . menander protector idem nos docet . * phil. comines lib. . chap. . artic. . artic. . tertul. apolog. . c. quando liceat . lib. . in res majestatis & publicos hostes omnis homo miles . vide grot. lib. . cap. . §. † livy lib. . lib. . §. ult . ad leg. corn. de sicariis pun . artic. . vide hetley rep. . h. . cap. . h. . cap. . * leg. milites . d. de re milit : rufus legi militeribus cap. . † artic. . bacon m●… fo . . privilegium non valet contra rem publicam . artic. . artic. . artic. . a artic. . b art. . c art. . d art . e art. . f ignominiosa dimissio . * fraudat●… stipendii . rosin . ant. rom. lib. . c. . † censeo hastaria . godwin antiq. rom. fo . , lips. de milit . rom. lib. . dial. . ●… h. . fo . , 〈◊〉 . 〈◊〉 car. . cap. . * * r. 〈◊〉 . cap. . stat. eliz. cap. . vide salmuth in 〈◊〉 leg. rerum depred . c●…de triumph . dion . 〈◊〉 〈◊〉 lib. 〈◊〉 . artic. . * coke comm. on littleton , fo . . deorum injuriae diis curae . ulpian . leg. . sect. vim . vi . d. de vi , & vi arma . * de jure belli ac pacis lib. . cap. . victor de ind. nel . . n. . 〈◊〉 victor de jure belli n. , , , . procopius persic . . notes for div a -e aretin . post joan. faber . in §. item exercitor . num . . instit. de oblig . quae ex quasi delict . leg. fin. c. §. pro socio & poss . inst . & d. cod . leg. in hoc parg . si conveniat pro sco. bart. & paul. in leg . hec distinctio §. cum fundum . ff . locat . such vessels when freight ed our against the grain of some of the part-owners , the same is under such provisoes , cautions and limitations as the law in that case requires . gloss. leg. si navis & juris in leg . utiq . para . culpae dè rei undic . & leg . arboribus . §. navis de usu fruct . leg. non aliter f. de usu & habi . † co. . inst. . hill car. . b. r. morse versus slue . * h. . num . . † naut●… caup . stab . leg . . sect. . † hill. , car . in b. r. stanley versus ayles . leg. inter●…stipulantem in §. sacram. ff . de ver . oblig . leg. quod in §. sin . f. de leg . leg. musius ff . de rei venic ' . 〈◊〉 ff . lib. . tit . 〈◊〉 . leg . . leg. si ex meis . ff . de acq . rer . dom . & leg . si convenerit §. si quis sic ff . de pign . act . leg. marcellus in §. armamenta ff . de re vindicat . * trin. jac. b. r. rolls . part , abridg. fo . . bald. in leg . cum proponas code de nautic . e fenore num . . mich. jac. in b. r. sir rich. bingley's case . rolls abridg fo . dig. lib. . tit . . §. . bridgemans case , hobart , fo . , . gloss. affrican . super cod . leg . & §. dig. lib. . tit . . . & l. . tit . . . §. . & papinion on the same law. digest . lib. . tit . . . scaevola on the same law. leg. . de exercit . act. hob. rep. fo . . bridgeman ' s case . * dowda●… 's case . coke lib . fo . . f. naut . caup . stab . leg . . sect. , , , . * the which the civil law does sometimes allow . morse versus slue , hill. car. . regis , adjudged on a special verdict found at the barr. debet exercitor omnium nautarum suorum sivi liberi sint , sive servi factum praestare , nes immerito factum eorum praestat cum ipse eos suo periculo adhibuerit sed non alias praestat quam iu ipsam nave damnum datum sit , caeterum , si extra navim licet à nautis non praestabit , naut . caup . stabilit . leg. . sect. . debet exercitor . eod. leg. debet exercitor . digest . lib. . 〈◊〉 . tit . leg. . 〈◊〉 † leg. oleron . judg ' . . stat. h. . cap. . l. ult . ad leg. rhod. & leg . quum proponas c de naut . foenor . stat. h. . . leg. fin . parag . si propter necessitatem . stat. h. . cap. eliz. cap. . p. & m. . jac. cap. . * proclamation sept. car. . per leg . quum propouas ad leg . rhod. d. leg . in fin . & leg . si vendita peric . rei vend . & leg . . & . naut . caup . * stat. car. . cap. . morse versus slue , car. in b. r. rott . r. . cap. . leg. . cod. de navib . non excusand . secund. sin . leg . ult . ad leg . rhod. & leg . quum proponas c. de naut . soenor . leg. oleron . . per leg. quant . de pub. * coke lib. entries , fo . . * pasch. car. rul'd at guild-hall before l. c. j. hale , inter and peacock . eliz. cap. . car. . cap. . digest . l. cum in debito ff . de probat . li. . cod. de navibus non excusand . * recepit salvum fore , utrum si in navim , res missae ei assignatae sint , an et si non sint è assignatae , hoc tamen ipso quod in navim missae , sint receptae videntur et omnium recepit custodiam quae in navim illotae sunt et factum non solum nautarum praestare debet sed et rectorum . f. nautae caup . stab . leg . . sect. recepit . leg. oleron . cap. . bridgeman's case , hobart , fo . , . * leg. oleron cap. . . judgment oleron . cap. . judgement , oleron . cap. . leg. oleron cap. . the like provision on the like penalty is for goods of muscovy , and of the dominions and territories of the great czar or emperour . so likewise of currants belonging to the othoman territories or dominions . note , in cases of sickness , death , captivity , salves the clause as to marriners . that is , those that do not belong to english , irish , welsh , or those of jersey or guernsey . car . cap. . car. . cap. . car. . cap. . car. cap. . leg. . & pasim ' ad leg . rhod. & l. . parag. . naut . caupo . vid. leg . consol . the father was of phalagonia , as egnatius vola teranus observes , lib. . ill consolato & per stat. car. . cap. . eudeum ad leg . . naut . caup . tot . per leg. oleron , chap. . per leg. . de exerc . act . & l. in fin . naut . caup . per leg. oleron cap. . per leg. oleron , cap. . as per leg. denmarke . leg . nemo de reg. jur . & leg . plerumque de in jus voc . leg. oleron cap. . leg. oleron cap. . leg. oleron , cap. . leg. oleron , cap. . consolat . del mare . trin. jac. b. r. abr. rolls , fo . . not but they may , notwithstanding the resolutions of car. cro. . reports , which are not now taken to be law. jones versus the poor marriners . winch. rep. sitwell & al' owners of a ship , versus love & al' . mich. car. in b. r. latch fo . . hill. car. in b. r. godfrey's case . leg . oleron , pasch. car. in b. r. capr. pidgeon adsect argoe . leg. oleron , cap. . per leg. oleron cap. . justit . de ob . quae ex dilect . §. fin. pasch. jac , in b. r. hernes versus smith . rolls abridg. . naut . caup . stab . leg. . sect. , , & . morse versus slue . pasch. car. . in b. r. gloss. super ●…od . sect. verb. & factum . brevia regis in turri london . trin. anno e. . num . . bristol . the judgment in this case is according to law , & ought not to have been a capiatur ; for it is not such a trespass as the king is entitled to a fine . vide cro. . beedle versus morris , jac. co. entries the same , . leg. . in fin . naut . caup . per leg . itaque de furlis . eod. leg. in fin . naut . caup . & p●…r leg , itaque de eod . edict . bartol . & jason in leg . non solum §. mortem . de no●… oper . brand versus glasses , sir francis moore trin. eliz. in the exchequer . vide the same book , mich. eliz. post . w●…rley's case . e. . cottons abridgment of the parliament records , fo . naut . caupo . ftab . &c. leg. . §. quamcunque vim . si quis navem conduxerit instrumenat consignata sunto , pekieus com. ad leg . rhod. art. . per leg. naval . rhod. artic. . mich. car. in b. r. langdon and stocks case . cro. fo . . per leg. item . §. si in leg . loca . mich. car. in b. 〈◊〉 . langdon and stocks case , cro. . part , . per leg. si ex conducto & leg . si item fundus & leg . haec distinctio . per leg. oleron . cap. . artic. . legum navalium , art. . eod . rich versus kneeland , cro. . part . ad leg. rhod. judg. oleron . leg. ult . ad ad rhod. digest . paulus , l. . . §. . leg. qui romae 〈◊〉 . cllimachus , 〈◊〉 . de verb. obl . ang. alex. & jason in di●… . §. callimachus . leg. relagati ff . de poenis & leg. ult . ff . de s●…p . vi●… . trin. jac. in c. b. rott . . bright versus cooper , brownlow . part . co. . part , . shelley ' s case . reniger and fogassas case . plowden com. but a pyrat is not an enemy . vide chap. pyracy . leg. si quis cod. de justit . & substic . arg. leg. ssite ff . de annis legatis & leg . illis libertis i●… fin . ff . do condit , & demon . arg. . leg. qui operas & leg . fiaedes §. cum quidam & §. ●…n . ff . locati . leg. sed & addes in §. si quis mulirem 〈◊〉 ▪ locat . there are . bills of lading alwayes made , the one to be sent over se●… to him to whom the goods are consigned to , the other for the master , and the last for the merchant or lader . leg. penult . §. novem f. de locat . trin. jae . b. r. bright versus cowper , brownlow , . part . leg. oleroon . leg. naval . rhod. art. . leg. oleroon . leg. consolat , del mar. bald. in leg . certi juris in . q. in verb. quid ergo cod. locat . hill. , car. . in b. r. stanley versus ayles . r. . statham abridg. . in jurae postliminij leg . retor ' . & leg . in bello §. . bovce versus cole 〈◊〉 ' & cole jun ' , hill ' , car. . in b. r. when such a misfortune happens , the ensured commōly transfer those goods over to the as●…urors who take them towards satisfaction of what they pay by vertue of their subscriptions . co. . inst. . johannes locinius lib. . cap. . scudamore & al' versus pitman . trin. eliz. in b. r. cited in co. . inst. fo . . l. ne quid ff . de incendio ruina & naufragio . leg. . d. de adq . ver . dom . per le judgment oleron , cap. , & . leg. . lib. . c. de naufragijs . leg. . in pr. de incend . ruin . leg . in eum cum auth . seq . de surt . leg. . in sin . de incend . ru . nauf . leg. pedibus cod . arg. leg . succurlarij de extrod . crim. per leg . incend . ruin . naufrag . leg. ne piscator . and here i cannot omit the great and pious care that his majestie hath had in his directions about light-houses and lanthorns , and other special sea-marks ; but more especially in his erecting at his own princely charge that most excellent light-house near goldston by yarmouth , which both for height , curiosity and form , not inferiour if not excelling all or most in christendome . per leg. oleron cap. . westm. . c. . § e. . naufragia ad publicanos pertinento . custm . norm . cap. . leg. naval . rhod. & . sir henry constables case , coke . part , fo . . faber & alij inst . de rer . divis . sect. pen. leg. . d. pro derelicto . e. . . f. n. b. . anth. omnes peregrini communia de successionibus ac . per leg. oleron . co. . part , . co. . inst. . leg. . d. ad leg . rhod. de jactu . s r. . pro willielmo fishlake . co. . inst. . leg. . §. . d. de surt . pl. com. . f. n. b. fo . . dd. diplo . & de off. admir . left unresolved in moore , fo . . but since adjudged trin. car. in c. b. upon a special verdict found at st. edmonds-bury in suffolk . the very words of the lord howard's patent , in eliz. in rott . admir . m. . e. . m. . num . . pat. e. . m. . intus pro edwardo fil . regis . inquisitiones de anno h. . num . . leg. . §. 〈◊〉 . d. naut . caup . st. l. . §. . d. de obl . & act . leg . . §. . d. mand . quia vis major providentiam & industriam humanam superat , nesi culpa casum praecesserit . leg. rhod. de jact ' . leg. oleron . cap. . leg. consolate del mare . leg. wisbicens . artic. , . leges guliel . . & h. . c. . de pactis ad legem rhodiam . selden ad eadmerum & notae & spici legium fo . . whelock de priscis anglorum legibus , fo . . leg. . & . ad leg . rhod. & leg . oleron . leg. wisbicens . artic. , . jac. in b. r. bulstrod . part , . bird versus astcot . leg. . ff . de exercitoria action . l. amissae & oleron . johannes locinius lib. . cap. . de jactu . & . de contributione . leg. . de del mal . except . & leg . si non sortem de cond . in de . leg. navis . ad leg . rhod. and vinius commentary , fo . . leg. . §. . ad exhib . l. . verse . quod convenit depos . leg. quem ad modum parag . si navis ad leg . aquiliae . eod. leg. h. . num . . . inst. fo . . goodwyn versus tompkins , noy rep. lusi sernus . §. & si. . ad leg . aquil. ad reg. rhod. leg . . §. si conservatis . f. de leg . rhod. leg . navis ●…nustae . leg . navis . ad leg . rhod. de jactu . sir francis moore , fo . . leg. rhod. de jactu , l. . si navis a pyratis . moore . plt ' . hicks versus pallington . grotius de introd . jure . holl. part . . suetonius . jure naut . in the end of the . chapter . peckeus ad leg . rhod. de jact . fo . , , . grotius introd . jur . holl. . . vinius and pekeus commentaries on the lawes of rhodes , . locinus lib. . chap. , , , . the custome of places varies this modus of estimating ; the which is done by merchants and marriners indifferently nominated by the court. ad leg. rhod. §. ult . inst. de rer . divis . & leg . . §. ult . de acque rer . dom. ff . ibid. leg . navis , §. cum autem . leg. . d. de prob . leg . falsus §. si jactum . d. de surt . bacon max. fo . . privilegium non valet contra rem publicam . in vita claud. caesar , lib. . c. . leg. . ff . qui salisd . cog . grotius de jure be●…i ac pacis , lib. . cap. . §. . in fin . eliz. cap. . leg. . . d. de naut . saen . johannes locinius , lib. . cap. . §. , . saut●…r . p. . num . . seq . . seq●… . if such ensurance be made in the office , they then set down the hour when intimation is given of the loss . locinius , lib. . cap. . §. , , . arthur stockden of stockden's case , mich. car. . in b. r. afterward convicted by information for the fraud , term. sancti hillarij sequen . in b. r. vide livins , lib. . the subscription mentions as if the premio had been actually received , but it is seldome done till the adventure is bourn . ut quae in naves imposs●…issent , ab hostium tempestatisque vi publico periculo essent . negotia toribud certa lucra proposuit suscepto in se damno , si cui quid per tempestates accidisset , livins , lib. . c. . vide zasius in commentario ad digesta , tit . pro socio . n. . sub nomine periculi , de quo fit cautio , comprehenditur omnis casus qui accidit in mari , à tempestate , ab hostibus , praedonibus , repraesalis ut , vocant arrest is alijsque modis usitatis & inusitatis citra fraudem & culpam contrahentium , aut domini mercium vel navis . grotius de jure holl. part . . iocinius , lib. . cap. . §. , , . note , the port of london extends from the north foreland in the isle of thanet , over in a line to the nase in essex , and from thence to london-bridge . r●…tulo . scaccarij car. . that has been much doubted ; and opinions of the court hath generally enclined against the assurors . leg. ult . ad rhod. digest . paulus . l. . tit . . §. vide grotius introd . jur . holl. . . and indeed is more the custome of merchants then law. locinius lib. 〈◊〉 . cap. §. . and by the lawes of antwerp there is a time allotted after the ships arrival at her port how long the adventure is , to be born by the ensurers , which is about dayes , art. . assecur-antwerp . case of monsieur gourda●… . governour of calais . anno . locinius , lib. . cap. . §. . sub nomine periculi , de quo fit ●…autio , comprehenditur omnis cas●…s qui accidit in mari , a tempestate , ab hostibus praedonibus reprisalijs ut vocant arrestis alijs●… ; modis usit●…is citra fra●…em , & culpam contrathentium aut domini mercium vel navis . grotius de introd . jur . holl. par . . in hoc contractu bona fide versandum est , ut natura ultr●… citroque obligatiodis postulat . locinius , lib. . cap. . §. . car. . cap. . car. . cap. 〈◊〉 , . car. . cap. . ritter●…hus . ad leg . contractus . de reg. jur . cap. . pag. , . stypman dicto loco num . . hill. jac. in c. b. las●…low and tomlinsons case , hobart . inst. in pr. quib . mod . re . contrab . ob . te . l. . si cert . peti . leg. quod convenit de ver●… . ob . d. leg. in m●…nare . car. . cap. . oyles versus marshall , styles rep. . dowdales case , coke lib. . fo . . eliz. in b. r. h. . crane and beil , co. . inst. , . dyer . . . fleta , lib. . cap. . rott . parl. ed. . cap. . & . trin. jac. in b. r. kennycot and boggens case . eliz. hen. . knowles case . hill. eliz. in b. r. rott . attorn ' general versus sacheveril and sneed . waller versus hanger , bulstrod . . part , fo . . hanger's case , hill. jac. bro. tit . disclaymer , . ed. . fo . , . archbishop of yorks case . sir john davies in the case of customes . in libro rubeo in scaccario remem . fo . . rott . chartarum anno 〈◊〉 . . nu . . called charta mercatoria . see the charter at large in the chap. of customes . stat. h. . ed. . . kenicott versus hoggan , yelverton . boytons case , . rep. . . vouched in the case of customes in sir john davies reports . cl. e. . m. . leg. oleron , cap. . h. . cap. . car. . cap. . randall versus hilton and butler . pasch. car. in b. r. h. . cap. . leg. oleron . cap. . co. entry , fo . . some conceive that the averidge mentioned in the bills , is that which is the averidge or contribution for losses . ●…ghton , ar●…c . enquiry , , . per leg. oleron cap. . per leg. oleron . cap. . exod. . . moses kotsenses printed at venice . de siclis , fo . ●… . col. . alex. gendier . l. . cap. . 〈◊〉 . reg. orig. . statut. r. . cap. . h. . . 〈◊〉 e. 〈◊〉 . acton b●…nel . this usury was first introduced by the jewes here in england . vide co. . inst. fo . . & h. . * and therefore some are of opinion , that there can be no certain rate set on the par in exchange , to answer justly the value of the coyns of forraign parts , by reason of the diversity of them , and of their intrinsical values . vide sir robert cottens posthuma , fo . . cro. . so . . martin versus bour. pasch. jac. in b. r. reg. orig. fo . . statut. 〈◊〉 . . cap. . consuetudo quandocunque pro lege servatur , saith bracton , in partibus ubi fuerit more utentium approbata ; longaevi enim temporis usus & consuetudinis non est vilis authoritas , lib. . cap. . words are made to signifie things ; by the word , deliverer , is meant he that payes the money beyond sea. by the word , drawer , he that writes or drawes the bill of exchange ; the person upon whom , is called the acceptor . nor is any such thing as a . dayes respite to be allowed for acceptance . per jasonem in lege allegantur ff . de conditionibus indebiti . mich. jao . c. b. vanheath versus turner , winch. , . trin. car. in b. r. the receiving of part of the moneys upon the bill , does no wayes weaken the bill . per leg . publia in si ff . depositi & per bart. ibidem , & per romanum singulari , . words are made to signifie things ; therefore by the word , deliverer , is meant he that payes the money : he that drawes the bill is called the taker or drawer : and the party upon whom , is called the accepter . styles , pasch. . in b. r. fo . . * that is for not payment , the bill being once accepted . styles reports , in b. r. . monck versus clayton mil ' , and morris . mich. car. . in b. r. and though the same seems an act of wisdome for merchants and others so to take , yet it oftentimes proves the destruction of many a family ; the father puts out the son perhaps with no less then or l ; and is himself become bound for his truth and just accounting , &c. the servant is immediately trusted with his cash , and then he too young experienc'd in the world , either neglects keeping a iust account , or keeping that , subjects his masters cash to be spent by himself and those who make it their sole trade to betray such youths : the master finding the consumption , calls his servant to account , who conscious of the act , forsakes his service , dares not see his relations , and then as a general consequence falls into a company , the which nothing but providence can preserve from taking their wicked courses . the father is called to answer , ( what ever the master does say the servant hath spent or imbezled ) none being able to contradict him , he must with a heart full of grief submit to and pay , besides the loss of the moneys advanced upon the servant's first putting forth : which sometimes proves a great affliction in a family . on the other side , if servants were not to be entrusted , the mystery could not be learnt , nor the business dispatched ; and therefore faith must be given : but then it were justice and honesty that as a father puts perhaps the child of his love to one in whom he reposes a faith and trust , that the master should be then as a parent , so they should prevent all occasions that might subject them to temptations , and not be over-hasty in trusting them with the cash : which is the very bait our london gamesters catch such gudgeons . rastal . bald. in r●… br . de constitut . pecunia in ult . col. & leg . quidem ff . eodem col. penult . bald. in leg. pro debito . c. de bon . actor . judi . possiden . & per bartol . in leg. singularia . col. . ff . probatur . pinchard versus fowk , styles , . pasch. . in b. r. styles . london . holland . there are two protests , . for non-acceptance , which is called intimation . . for non-payment . * which is look'd upon to be the third day . there is no danger , be the party never so responsible , to protest immediately if the money be not paid when it is due i. e. the third day ; but there may ( especially beyond seas ) be great hazard for want of protesting . in leg . pno debito in fine c. de bonis author . judi . possiden . dayes allowed from the death before administration can be committed , unless there be a will. but an intimation ought to go , and that the acceptor is willing to pay according to order . * l. . cap. . §. , , . * aristotle polit. † campanella monarch . his●… . money is like the middle term of a syllogisine , of which it is said , quo conveniunt in tertio conveniunt inter se. † poland and generally in most of those northern countries . vide chap. of exchange , §. . leg. . d. de naut . faen . l. . eod . l. . d. de rei vindic. locinius , lib. . cap. . §. . † leg. faen . naut . leg . periculi ●…od . vide passim ad leg . de faen . naut . & dd. leg . naval . rhod. vide leg . . c. de faen . naut . leg. naval . art. . art. . * testatur vinius in peckium ad . i. l. nautic . quem vide pag. . leg. oleron , cap. . leg. . d. de naut . faen . l. . c. eod . leg . qui romae §. callimachus de verb. obl . & ibi gothfr . & alios . scarborrough and lyrius , pasch. car. in b. r. rott . . noy . car. cap. . a good law , and ought to be encouraged ; it 's pity it was not continued . * joh. locinij , l. . cap. . §. . latches rep. fo . . scarborongh ' s case . † teste camdeno in britannia , p. m. . locinius lib. . cap. . §. . toto lit . dig. & cod. de naut . faen . & doctorum sic hardus in tit . cod. de naut . faen . n. . trajectitia pecunia propter periculum creditoris quamdiu navigat navis , infinit as usur as capere potest ; upon which law it was observed by anianus , quia maris periculo committitur quant as convenerit usur as hanc pecuniam dare creditor potest . * trin. jac. in b. r. . cro. . sharpley versus harroll . verum enim vero hie propriè non versari damnatum foenus sed compensationem aliquam periculi , quod creditor contra naturam mutui in se recepit patrim . johannes locinius , li●… . . cap. . §. . & . * c. b. hill. , car. . vide carolus molinaeus de usur . q. . n. . ait , hoc approbant . omnes theologi ut creditor possit aliquid accipere ultra fortem pro susceptione periculi . but surely that must be upon a real venture . cl. salmasius , cap. . de modo usur . fo . . . . trajectitia pecunia propter periculum creditoris , quamdiu navigat navis , infinit as usur as capere potest . upon which place anianus observes , quia maris periculo committitur in quantas convenerit usur as hanc pecuniam dare creditor potest . vide novel . const. . . usura legitima ejus qui trajectitiam pecuniam trans mare vehendam saeneratur , id est cum periculo suo , centesima est . in the east-india , and in some other companies . pindfold versus northee , pasch. car. . in b. r. adjudged there on a special verdict . rott . almaign . ed. . rott . rott . claus. ed. . extract bruxelles : dors. claus . an . hen. . n. : rott . claus : ed. . ed. . memb. . indors . rott . almaigne . the parliament having justly , honourably and voluntarily humbly presented such and many more who are established on his majestie according to their several limitations . claus. anno ed , . original . ed. . rott . . vide the great case in mich. jac. in the exchequer versus bates . lane rep. fo . . joseph . locutus de pompeio , lib. . de bello jud. cap. . pag. . sigon . de antiq . jure civum rom. lib. . cap. . luke . . is. causabon , exercit. . . suton . in flav. vesp. c. . tertullian ( printed . ) de pudi●… . cap. . eliz. dyer . ed. . num . intus . a repairing publick walls . b bridges . c pavements . * it is supposed it should be sindo●…ibus , of lawn , cambrick or other fine linnen . sir john davies in the case of customes . vide the stat. car. . of tunnage and poundage . vide in tit . prisage . directions on tunnage . directions in poundage . directions for the payment of the subsidy upon woollen clothes , or old drapery . subsequent impositions to the act of tunnage and poundage , and the book of rates . car. . this collected as the tunnage and poundage is directed . car. . cap. . for preventing of fraud . car. . cap. . car. . . car. . cap. . car. . cap. . per act of nav. car. cap. . vide the statutes , and the particular commodities enumerated there . rule . rule . vide the table of strangers duties upon wines . car. . vide table of french wines . act of navigation , car. . cap. . act of trade , car. . cap. . vide stat. and the particulars enumerated . rule . car. , . car. . . car. . cap. . act for trade , car. . cap. . act for tillage , car. . cap. . , car . car. . . car. . . act for trade , car. . . proclam . car. regis , dec. . aug. . but see car. . concerning customes . * sir francis moore 's report , . lord cobham's case . the like not long since adjudged in the common-pleas ( on a special verdict found at st. edmonds-bury in suffolk ) about mich. , or hill. & car. . virtute cujusdam ordin . à dom. com. sabbati maij , car. . regis . tare and tret , the first is the weight of the cask , or bale or covering wherein goods are packed ; the other is a consideration allowed in the weight for emptying and reselling the goods . h. . cap. . per order in k. charles the first , subscribed by william lord bishop of london , h earl of manchester , lord c. j. brampston , and lord littleton . portus qua publicus non solum mercibus exonerandis inservit sed ut naves ibi tutum receptaculum habeant , & jure debito ac securitate fruantur navigantes quatenus innocuum iter et stationem quaerunt . hinc portus & navalia privilegio pacis publicae guadent . arg . . leg. . §. stationem d. de flum . cap. . jur . nautic . sued . c. . §. . h. . . 〈◊〉 portus est conclusus locus quo importantur merces & exportantur l. . de verb. sign . alias statio , quod ibi tuto naves stare possint , leg . . §. . d. de flum . ad portus instaurationem quia publicae utilitatis gratia fit omnes subditi loci conferre oper as debent . l. . c. de oper . pub . portus intuitu fluminis quo ambitur , & vectigalis quod ex navium statione penditur , est publicus & hodie regalibus accensitur . §. . inst. de rer . dio . l. . §. d. de eod . c. un . quae sunt rega . * some stairs on the west side thereof is declared not to be a place for shiping or ladding of goods . † excluding the stairs there , which are declared no lawful place for shiping , or landing of goods or merchandize . * the stairs there declared unlawful for shipping or landing goods or merchandize . † the staires there declared no lawful place for shipping and landing of goods and merchandizes . * the staires on the east declared unlawful for shipping or landing of any goods , &c. one other place betwixt cocks key and fresh wharfe , called part of fresh wharfe , the staires are declared to be unlawful for shipping or landing of any goods , &c. vide cap. . what are lawful places of landing . coke part , fo . , . fogassaes case , plowden . com. fo . . h. . car. . cap. . car. . cap. . boyce versus cole sen. & cole jun. hill. car. . in b. r. there is a book at the custome-house , in which there is a general value set on all goods , amongst which tobacco is there valued . nor can such merchants stranger land their goods before they have agreed for the customes , notwithstanding charta mercatoria . † vide lib. . chap. . §. . note . that all these severall allowances are not by act of parliament , but purely his majesties gratious and voluntary gift and benignity towards the encourageing the merchants and trade . ed. . cap. . car. . cap. . car. . cap. . † per letters patents bearing date . of feb. car. . * de offic. . † de benef. . symps. . leg. quaeda●… d. de rer . divis . bald. . cons. . * lib. . cap. . † §. . & . serv. ad . . aen. littusque 〈◊〉 innocuum cujus vindicatio , ait , nulli possit nocere . plutarch relates , that cymon going to ayd the lacedemonians ▪ led his army ▪ thorough corinth , being reprehended by the corinthians for not asking leave of the city : nam et qui fores alienas puls●…t , non intrare nisi domini permissu : ac vos inquit , cleoneorum & megarensium fores non pulsastis sed perfregistis , consentes omnia patere d●…bere plus valentibus . however passage is and must be requested ; but in lieu of that , the striking of the flagg , and lowring the topsail is in token of that right due to his majestie in the brittish seas . vide lib. . chap. . vide mr. selden mare clausum . † that is by the lawes of nature , but the lawes of nations and those of countries may . * in legat cajum . quomodo autem satis digne quis explicet facilitatem ad mutua commercia , nobis datam ? ne enim itineris longitudo impedimentum aliorum ad alios commetatibus ad ferret , breviorum viam , mare scilicet , ubique terrarum disposuit deus , ad mundum tanquam unum domum communiter inhabitantes crebro nos invicem inviserimu●… ; & apud se nata quisque alteri communicans vicissim , commode acciperet res apud illum abundantes ; ac sic exiguam tenens terrae partem , ita tanquam si teneret universam , frueretnr ejus quae uibis sunt bonis . licet itaque ; nunc tanquam in communi mensa convivarum unicuique ea quae sibi opposita dare alteri longius accumbenti , ac contra quae apud ipsum sunt accipere mann tantum extenta . vide strabo , lib. . & lib. . * h. . fo . . † lib. . fo . . case of the chamberlain of london . vide the plea of the venetian lawyers at the end of mr. selden's mare clausum . pereg. l. . de jure fisci , cap. . num . ●… . notes for div a -e l. libertus § . d. de statu hominum . fiunt etiam servi liberi homines captivitate de jure gentium . bracton l. . c. . littleton sect. . l. postlim . § . d. de captiv . l. & servorum § . d. de statu hominum . apud omnes peraeque gentes , ait cajus animadvertere possumus dominis in servos vitae necisque potestatem fuisse . co. instit. fo . . b. b. l. . d. de his qui sui sunt juris institit . de his qui sui . leg. cornelia ff . de testam . & leg. cornel. ff . de vulg . substit . in jure postliminii leg. retor . & l. in bello . § . & l. bon ss . de capt. & § . d. quibus mod . jus patr . solvit . and fortescue conceives , it began ab homine & pro vito introducta 〈◊〉 servitus e●… libertas 〈◊〉 ●…inis 〈◊〉 naturae quar●… 〈◊〉 ab homine 〈◊〉 〈◊〉 redire gli●…t . ut facit 〈◊〉 quod libertate naturalis privatur . cap . * artic. of war anno . for his majesties forces , artic. . b●…rt in l. nam . & serv. d. de reg gistis . in the wars of the french with the spaniards in italy , a horseman was ransomed for the th of his yearly pay. vide maria na . lib. . and in the last belgick war , the english dismist all the flemings that were taken in war , as they did the like with those of england an. ●… / ●… . quam non sit ardua vertus servitium fugisse manu , it is none of the hardest vertues to embrace death to avoid slavety . * , . car. . cap. . it 's expired ; but his maiesty is yet graciously pleased to consider the state of his poor subjects , and thereupon hath appointed a committee of the lords of the privy council , for the managing of that affair . † yet some of the english merchants , & others , at the canaries , do here support this unnatural custom . so likewise at virginia , and other plantations . exod. . , . vide the statute of eliz. who hath provided the like remedy in other places . deut. . . the russians having seized on the countrey of illyria , and made it their own by conquest , their victory pleased them so highly , that thereupon called themselves by a new name , slave , which is in their language glorious ; but in after time , ( that warmer climate having thawed their northern hardness , and not ripned their wits ) when they were conquered , the italians in derision calling them ; ( being then their bond-men ) slaves . sir walter rawleigh , lib. . cap. . § . vide leg . . tabuli sigonus de jure roman . l. . cap. . * justin. inst. l. . tit . de ingenius vide franc. silo in cattilin ar●… . goodwyn antique rom. . , . tertullian de de resur . car●… . * as to some things vide postea § . magna charta cop. . r. . so . . bacons case , cro. . so . . stephens case car. in the dutchy . a geius noct. artic. l. c. . first granted joh. reg. revived h. . and since confirmed above times . * the lord morley and monteagles case ; for the supposed murder of one hastings , car. . e. . . hen. . bro. title tryals . ed. . rot. parl. m. . e. . cap. atamen in poenae nomine lene fuit : quippe relegatus , non exul dicor in illo ovid. de trist. li. . elig . * adde quod edictum quamvis immitte minaxque in london the same is done by exhibiting an information in the name of the common serjeant , in the mayors court there against any citizen that shall justly deserve so great a d●… honour . * car. . cap. . mr. selden observes , that in the time of king henry the first , and of other kings , both before and after him , that if any man accused of a capital crime done at sea , being publickly called five times by the voice of the cryer , after so many several days assigned , did not make his appearance in the court of admiralty , he was banished out of england ; & de mere appurtenant ou roy d'angleterre , for years more or less , according to his offence . mar. claus. so . . e. ●… h. . bulstrod , . part . e. . fitzh . petition pl. . . re. fo . . case city of london . fo. king edward the d. granted to john falcount de luca an apothecary of the city of london , quod ipse omnibus libertatibus quas cives civitatis praedict habent in eadem civitate alibi infra regnum angl ' nostrum habeat gaudeat & utatur &c. rot. pat. e , . in the tower ; yet it was held , that this grant did not make him a free-man of the city , for it cannot be attained , but by one of those ways . † case of the city of london , co. . report . confirmed by magna charta cap. . rott . parl. . r. num . . e. . cap. . e. . cap. . e. . cap. . h. . cap. . h. . this act is not printed . james baggs co. . rep. calvinu●… case ▪ go. lib. . yelverton : lorddyer . pasce eliz. sir james crofts case by the judges . e. ▪ cozinag . . report rat●… lifts case . seldeni de successionibus apud heb●…s cap , . comment . on littleton fo . . tit . . tit . . de haeredibus ab intestato venien●… tibus . customs normand . c. descheancres . grotius de jure belli ac pacis lib. . cap. . dyer ▪ grayes . courtneyes c. com. pleas coron . fo . . michelmas car. cro. . part caroons c. ed. . tit . cozinage . . ramseyes c. . car. . in com. banc. godfry and dixons case . hill. . iac. in b●…r . godbolt . de natis ultra mare ed. . car. in the dutchy in stephens cause . car. cro. . bacons case . prowdes case of kent . com. lit . fo . . per l. c. i. hale in ramseye case * just. l. . tit . de gradibus consanguinitatis . † decret . gracianii cap. . quaest . . litt. sec . ed. . gard. . hollands cause cited by littleton . * servien in comptes , degrees in line collat. solenk , &c. * browns case mic. . b. r. contra e. . bro. admiration . which prefers the brother of the half blood before the mother . eliz. dyer . . grayes case . com. placit coron . so . . henry courtneys case . mich. . . eliz. ruled in the exche . quer in the case of hobby . e. . . par tanke and pershay . co. . rep. . calvins cast . sir john burroughs soveraignty of the seas , so . . pasce eliz. c. b. mich. jac. in c. b brownlow . part . mich. . eliz ▪ in c. b. gold folio . mich. eliz. coke . part pages cause fol. . moore . walton v. mashum dyer . alien stamford prerogative regis ca. . fol. . tit kings seizin , &c. cross ve . gayer cro. . part so : . plowd . com. . e. . fol. . henry hills cause . assize , . assize travers . vouched in stamfords plt . fol. . cap. . cdr. in b. r. styles . king vers . holland . stat. . car. . cap. . , h. . cap. . hill. jac. bulstrod . part fol. . cited in st. thoma walters case . yelverton . turloote vers . monson . jac. b. r. moore ●… . but yet aliens and denizons are restrained by the stat. of eliz. ca. to use any trade , not having served seven years as apprentices within the realm . vide the statute what trades trin. . car. . at sergeants-inn in fleet-street by all the judges . huttons reports fol. . servien lib. . cap. . com. litl . coke . inst. so . . my lord cook so conceives , but mr. selden denyes that ever there was any such modus tenendi , but the same is an imposter . vide his titles of honour , fol. . , . to . selden . tit. of honour fol. . in scotland , the tit . is carolus scotiae , angliae , franciae , & hyberniae rex ; but in ireland , angliae , scotiae . * from hence it is that the king at this day cannot alien or sell ireland , without an act of parliament , for they whose right he succeeds could not do it , co. . institut . fol. . nor can he grant , portus maris obedientiis , advo●… cationibus , & patronationibus ecclesiarum metropoliticarum & chathedralum cancellar . justiciar . nor mero & mixto imperio , and many more , all which are inseparably annexed a kingdom . † imperium aliud est ob utilitatem ejus qui regitur , hoc inter libe●…s locum habet illud inter dominos & servos , arist. lib. . de republica . † case of the earl of sherewsbury on the stat. of . of absente●… , . inst. prescribes , fol. . * or else they came to london for them cl. . hen. . m. . ariovistus apud caesarem , jus esse belli ait , ut qui vicissent iis quos vicissent quemadmodum vellent imperarent , de bello gallico l. . † leg. qui in servitute est de reg . juris leg. si eveniet d. ad leg . jud. de adult . calvins case lib. . fol. : for at a general councel at gassels of all the clergy there anno . ecclesiastical laws of england were established , and made of force in ireland , geraldus cambrensis tepographia hyberniae , l. . cap. . * pat. e. . 〈◊〉 . . hybern . † mathew paris hist : angl. p. . leges angliae o●… omnibus sunt gratanter preceptae . orucks case . eliz. cok. . part fol. . calvins case : † ely placita parliament , p. . to . . sir john da●…s on the conquest of ireland , , . escheat . an●… . h. . nu●… . car●…ones case . hobbys case . stephens case . note , this was before the statute of . of e. . its vouched by shard in : assize pl. . see calvins case . report . ce. inst. . fo . : godfry & dixons case . hill . jac. b. r. godbolt . h. . dyer , ed. . rott : part . . dors claust h. . memb. . co. . inst. fo , . b. co. . inst. fol : . sans. pl. coron . lib. . cap. . lamb●… fol. . . c●… . . just. . e. . cap. . e. . cap. . but if it be for treason . è contra . vide postea num . . dyer . stat. . eliz. cap. cro. . part . . bro. tit . trial . cr●… . . part . 〈◊〉 h. . . dyer . dyer : h. . : pl : coron . . dyer . e. : , . co. l. fo . . cro. . part fol. , . herb. . stamford . hill . eliz. dr. lopez case by all the judges . vide lord dyer fo . . the case of sherily where the point is fully handled . co. inst. . part fol. . moores . barrs case . colivre coke entries tit . alien . stamford . b. ed. . cap. . ed. . ●… . h. . . mich. , . eliz. in b. r. sr. julius caesar versus phillip corsini . cr●… . . part . sir john davis conquest of ireland , fo . , , . co. . fol. ▪ calvins ease . mich. . car. . cro. fol. . eliz. in the case of the duke of norsolk ce. inst. . pt . . * h. . fo . ▪ hill . . car. di . in b. r. robles . vers. langston hobart . fo . . courteens case . tacitus annal. . ubi nec possessio est plene in homine , nec homo plene in possessione . * de jure belli ac pacis . lib. . cap. . §. . dion . prusaeenses orat. . recte facta est concessio , quae est sine damno alterius . * as it is consonant to nature that my share of subsistance , which was before uncertain should now be fixed , so it is necessary that the consent which others gav eto this at first , should stand fixed , especially if there was no obligation , or declaration at the first to the contrary . vide selden de jure na : & gen . ad men . heb. id obligat . quod est ex officio quod legis est : but the sanction of a law supposes the nullity of a state of nature , not of a right of nature . pia mater panem inter liberos distribuit ut fructum veniat singulis . * xenephon in his answer to the sinopenses : ubi jus emendi nobis non conceditur , sive in barbarico , sive in grecianico solo ubi quae opus sumimus , non per preterviam sed ex necessitate . exped . cyri. ●… . lessius lib. 〈◊〉 . cap. . dub . ●… num . . cor. . . grotius de jure belli ac pacis lib. . cap. . §. , , . leges humanae obligant uti factae sunt , scilicet cum sensu humanae imbecelitatis . ne quicquam funde suspirat nummus in imo * intendetnr inquit socordia languescet industriâ , si nullus ex se metus aut spes , & securiomnes alienae subsidia expectabunt , sibi ignavi , & nobis gravis , tacit. matth. . . decretals of gratian lib. synodus nicaeensis can. synodus aurelacensis . can. concilium 〈◊〉 letanum . grotius de jure belli ac pacis lib. . cap. . §. , . 〈◊〉 praeter mer●… caturae usum naves rei militari , & tucandae in mari contra externam vim reipub . inservire ceperunt ari●…istotle . pol. . mare & classem in bello esse tutelam reipub . ait tacitus . histor . classes imperii munimenta vocat ●…theniensium legati apud thucididem lib. . histor. orat. ad lact●…aemonians , fortunas graeciae in navium praefidio fit as fuisse praedicant , esus rei muri lignei themistocles abunde fidem secerunt idem experientia sat is ●…odie loquitur . inde cosmi medicaeo familiare fuit dictum , non habendum potentem qui potentiae terrestri , non simul etiam navalem haberet conjunctam . et hispanorum est adag●…um , regnum sine portu esse sicut furnum ●…sque igne : praeterquam quid navigationes cultui vitae , & artium traductioni coloniarum valetudine , & voluptati serviunt . mirour cap. . sect. . intr. leges ethel . cap. . magna charta cap. . * that is the keeper of the realm in his absence . et in republica maxime conservanda sunt jura belli co. . inst. fol. . rett . parliamenti . e. fol. . num . . rot. vascan . . ed. . m. . h. . ca. . h. . ca. . * stat. to . . cap. . confirmed by h. . cap. . † h. . 〈◊〉 . h. . cap. . h. . cap. . e●…z . cap. 〈◊〉 . c●… . 〈◊〉 . inst. fol. ●… . e●…g . ●…ic . c●…d . de 〈◊〉 . & alce●… . in leg. ●…ercis . & in leg. ●…ercis . de 〈◊〉 . 〈◊〉 . 〈◊〉 ●…iens . dist . 〈◊〉 de cae●…tr . in 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . f. n. b. . b. . e. . co. on littleton fo . . per legem mercatoriam , jus accrescendi inter mercatoper benefici●… . commercii locum non habet . co. sur litt. fo . . lib. intrat . fol. , , . martin versus bo●…z . jac. b. r. cro. fo . . vid. tit . exchange . mich , & eliz. dyer fol. . pasc. . eliz. fo●… . . h. . tomlinson qui tam vers . henry he vale pasce , eliz. in the exchequer . the cutlers of london do give to each member a particular mark , which cannot be used or appropriated , without a particular order and leave of the company and party , and so other companies . cro. fo . . i jac. b. r. rott . . barton & saddocks bolstr . . part . mich. jac. c. b. van heath versus turner winch , . levison versus kirke trin. . jac. in b. r. lane repor . . hill jac●… b. r. cro. . part fo . . bridgman , . popham . not resolved that book . hill . eliz. b. r. petties & soames case goldsbr . fol. . † southels case . coke lib. . fo . quere , if equity may not relieve in such case . * in 〈◊〉 〈◊〉 turale set 〈◊〉 ctandum in his quae 〈◊〉 〈◊〉 dam not ●…am se 〈◊〉 no●… in deprav●… . arist. 〈◊〉 . 〈◊〉 . 〈◊〉 . non ide●… id deum velle , quia justum est , sed justum esse , ( that is due in law ) quia deus voluit . anaxarchus apud plutarchum in alexandro . vasqu . . controv . . : grotius de jure belli ac pacis , lib. . cap. . § : . grotius de jure belli ac pacis , lib. . cap. . vide chap. pyracy §. , . leg. extat . d. quod metus . non reddit faciendo quod debet , reddet patiendo quod debet philo , peccare dum festinatis , ad . 〈◊〉 ●…erendas festinatis . * pol. . jac. in b. r. rolls abridge ment , wiers case upon a haheas corpus . fo . . * coke inst. so . . soto de just. & jure lib. . qu. . art. . satius judicimus esse paucos aliquos mala ferre quam immensam multitudinem , zonaras . † pasc. car. in b. r in hibern . inter warde and moore . † ad quintum tract . . . his majesties propriety and dominion on the brittish seas asserted together with a true account of the neatherlanders insupportable insolencies and injuries they have committed, and the inestimable benefits they have gained in their fishing on the english seas : as also their prodigious and horrid cruelties in the east and west-indies, and other places : to which is added an exact mapp, containing the isles of great brittain and ireland, with the several coastings, and the adjacent parts of our neighbours / by an experienced hand. codrington, robert, - . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a wing c estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) his majesties propriety and dominion on the brittish seas asserted together with a true account of the neatherlanders insupportable insolencies and injuries they have committed, and the inestimable benefits they have gained in their fishing on the english seas : as also their prodigious and horrid cruelties in the east and west-indies, and other places : to which is added an exact mapp, containing the isles of great brittain and ireland, with the several coastings, and the adjacent parts of our neighbours / by an experienced hand. codrington, robert, - . clavell, robert, d. . [ ], p. : folded map printed by t. mabb for andrew kembe ... and edward thomas ... and robert clavel ..., london : . "the epistle dedicatory" signed: robert codrington. also attributed to robert clavell. cf. bm; dnb. reproduction of original in british library. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the , texts created during phase of the project have been released into the public domain as of january . anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng maritime law -- great britain. freedom of the seas. great britain -- foreign relations -- netherlands. netherlands -- foreign relations -- great britain. - tcp assigned for keying and markup - aptara keyed and coded from proquest page images - robyn anspach sampled and proofread - robyn anspach text and markup reviewed and edited - pfs batch review (qc) and xml conversion his majesties propriety , and dominion on the brittish seas asserted : together with a true account of the neatherlanders insupportable insolencies , and injuries , they have committed ; and the inestimable benefits they have gained in their fishing on the english seas : as also their prodigious and horrid cruelties in the east and west-indies , and other places . to which is added , an exact mapp , containing the isles of great brittain , and ireland , with the several coastings , and the adjacent parts of our neighbours : by an experienced hand . london , printed by t. mabb , for andrew kembe near s t. margarets-hill in southwark , and edward thomas , at the adam and eve in little brittain ; and robert clavet , at the staggs-head in ivy-lane , . to the most illustrious , and heroical , george duke of aubemarle , earle of torrington , baron monck of potheridge , beauchamp , and teys , captain general of his majesties land-forces , garrisons , forts , and castlos within any of his majesties dominions ; master of the horse ; knight of the most noble order of the garter ; and one of his majesties most honourable privy council . may it please your highness : these papers concerning his majesties right and propriety to his dominion on the brittish seas , do here most humbly addresse themselves to your highness most illustrious hand , and submit themselves as much to the affability of your candour , as they implore the greatnesse of your protection , to which they are encouraged both by reason and religion ; for your highness being the great instrument which all along attended the divine providence , in restoring his majesty to his own , both by sea and land , and in establishing religion as well as loyalty ; the same reason doth perswade me , that these assertions may be acceptable to you , and that your highness will vouch-safe your patronage to that subject which you so happily and heroically have effected ; and for which all ages shall renown your memory . may it please your highness : the profits which the dutch have made by their fishing on the english seas , are as vast as their ingratitude is abominable , which with an elaborate malice they have expressed by their manifold out-rages committed in the east and west-indies , where ( that no villany may be unpractised ) to improve their interests , they have added hypocrisie to their avarice , and to their ambition , murder . the innocent blood which they have spilt , doth cry aloud for vengeance ; nor can the guilt of it fall asleep , but will be lodged in the memories of righteous men , and kept awake by the industry of faithfull historians ; and by this ruder pen of him who is , ( may it please your highness , ) your most humble , and most devoted servant , robert codrington . the preface to the reader . the combinations and endeavours of the states general of the united provinces against his majesty , and this nation have been so insupportably insolent , that the parliament not long since , upon the cry of the whole nation , did sollicite him to take some extraordinary way to give redress unto his subjects for the many and daily injuries they sustained from them by their depredations at sea , for the horrid and barbarous cruelties inflicted on them in the east and west-indies , which being as odious in their nature , as they are remarkable in their number , have been the onely cause that these pains are taken to give a general satisfaction to the world , by exhibiting this brief , but most true account of his majesties undoubted right , and sole propriety in the english , scottish , and the irish seas : a truth as antient , as it is eminent , and not only held forth and attested by the laws of our land , and the records of the tower , and the high courts of parliament , but heretofore confessed also by divers of their own nation , as in this book you shall find it faithfully represented to you ; but it hath been the late practise of the hollanders ( without examining the lawfulness of the act ) to put their oares into every boat , where gain and profit doth appear . it was this , that tempted them to invade the islands of moluccos , lantore , and polleroon , which in the name of the crown of england the english for some years had possessed , neither did they entertain the least jealousie of opposition from the hollanders , who they knew heretofore had been oblidged to them for many antient good offices in a time , when their greatest safety did depend upon them , and who lately were conjoyned with them in a strict alliance and confederacy for partnership in the east-indie-trade , in the year . neither did they fear the natives , whom they found to express a greater inclination of good will unto them then to the hollanders , for the english aimed at nothing more , then a lawful and competent profit by commerce and traffick with the natives , and the dutch ; and though in some places the english had erected some forts , and setled some strength , yet it was not by any force or violence , nor against the good will of the people of the country , but with their own good liking , and consent , for the better security of their trade , and upon the voluntary submission of the natives to the obedience and soveraignty of the crown of england , in which submission the antient laws and liberties of the said natives , and all their own immunities were comprehended , and reserved : in this establishment the english did conceive themselves to be secure enough ; when behold the dutch ( who would be no better neighbours to us in the indies then in europe ) began to quarrel with us , and to hinder us in our trade to free places , the which the better to obtain , they oftentimes seized upon our ships , and goods , and finding this violence not to answer their expectation , they at the last contrived to make themselves the absolute masters of the vast profits of those places ; in the pursuit whereof , they have razed and demolished the english forts , and laying violent hands on the english themselves , who made not the least resistance ; they have tyed them to stakes with ropes about their necks ; they have seized upon their goods , they have imprisoned their persons , they have whipped them at the post in the open market place , and having washed their torn and wounded bodies with vinegar and salt , they have again doubled their scourges to multiply their torments ; they have dragged them from thence to places almost inaccessible , by reason of their steepness and roughness , and having thrown them down the rocks , if any sence of life remained , they have added new oppression to their weary and bruised limbs , by the heavy weights of iron ; to these deliberate torments the cruelties of other nations are but courtesies , and death it self a mercy ; and as if they were the absolute lords in the indies they have assumed a power to themselves in the deciding of the controversies between the english and the indians for matters passed quite out of their jurisdiction , and when law and right have pleaded against them , they have executed their decrees by violence . these be they who have laid a claim to his maiesties interests on his own brittish seas , and rather then allow them proper unto him , they have declared them common unto all : at the first they begged leave for their fishing on the english seas , which being granted them by the accustomed indulgence of our princes , they have so presumed upon their lenity , that at the last they have made a law in their own country , that the english shal sell no white herrings , nor other fish there upon penalty of confiscation ; they are fishing on the english seas from june unto november , and seem there to dwel amongst the fish for weeks together , in which time the havock which they make in destroying the spawn and fry of fish that comes into their netts , and otherwise is as remarkable as what they carry away with them . the reverend and learned mathematitian , doctor dee , almost one hundred years since , speaking of the incredible spoyle of fry and spawn , which is yearly made on the river of thames , and other rivers belonging to this island , doth conclude , that there are yearly spoyled on those rivers , cart-loads of fresh fish , which would have so proved to be market-able , if they had not been destroyed in their nonage ; i shall give you his assertion in his own words ; it is probable , saith he , that in all england by the manifold disorder used about the destroying of fry and spawn , there is yearly spoyled or hindred the brood of cart-loads of fresh fish of middle marketable-skantlin . the value of which cart-loads , do amount to bushels of fresh fish , six quarters going to a cart-load , which one with another being rated at five shillings a bushel , doth amount in currant english money , to the sum of l . which quantity of fish also would maintain for one day , one thousand thousand , and eight hundred thousand men ; or nine hundred thousand men two dayes ; or three hundred thousand men six dayes , or a hundred thousand , eighteen dayes , or fifty thousand men thirty six dayes , or five and twenty thousand men six and twenty dayes . if by our own neglect , so great a destruction of fish is made in our own rivers , what may we conceive the disorders to be which are made on the english seas , by those whose business it is , to think all is fish that comes to net , and whose trade to plunder ; the time of our patience hath been long , their promises of redress numerous , and the daily injuries we have received insupportable : to give you in this place a more large account of them , were to anticipate your understanding ; i shall therefore for your further satisfaction , refer you to the particulars in the book it self : farewell . map of england, ireland, scotland, and western europe. an exact ▪ map ▪ containing the isles of great brittaine and ireland , with the severall coastings that surround the same : as also the adjacent parts of all the other neighbouring nations : drawne according to the best and latest discoveries , sold by a. kembe , e. thomas , and r. clavell by an experienced hand lower half of map on page . the propriety and dominion of the king of great brittain on his seas ; asserted against all opposers , and confirmed from all ages , to this present time. for the better understanding of the following discourse , we shall in the first place lay down these two propositions : first , that the sea by the law of nature and nations is not common to all men , but is capable of private dominion , as well as the land. the second , is , that the king ofgreat brittain is lord of the sea flowing about , as an inseparable and perpetual appendant of the brit●●sh empire . before we shall insist on these propositions , we shall in the first place , remove some objections that may be made against them : some are drawn from the freedome of commerce or traffique , which by many are affirmed to be so naturall , that they can no where be abolished by any law or custome , and that by the law of nations it is unjust to deny merchants the benefit of commerce and navigation . other objections are drawn from the nature of the sea it self , for it is commonly alleaged that the sea is altered , and shifted every moment , and the state thereof , through a continued succession of new waters , alwayes uncertain , and remains so little the same in all things , ( the channel onely excepted ) that it is impossible it should ever be retained in the possession of any one particular . as to the first , it is easie to be proved by the ancient interpreters of the mosaical law , that the sea is altogether as capable of private dominion , as the land ; the words of god in the book of numbers are express ; and let your borders be the great sea ; that is , say the rabbins , the main ocean , and its isles ; and it is plainly to be proved , that a private dominion of the sea no otherwise then of land arose from humane distribution : we read , that pompey the great , being master of a huge navy , had a commission given him from the senate , as absolute lord of the sea ; the like had mark anthony some few years after him ; and many of the roman historians have called the sea , their sea ; because it was wholly subdued to the roman power . we might here alleage many examples how long the lidians , the phygians , the rhodians , the phaenicians , and many other eastern nations , one after another have been lords of the sea : thy borders are in the midst or heart of the sea saith the prophet ezekiel of the tyrians : quintus curtius affirmeth , that the city of tyre builded by agenor , made not onely the neighbouring sea , but what seas soever her ships sayled into , to be of her dominion : there was an ancient custome used in the east , that when great kings had a design to bring any nation under their power , they commanded water , and earth , the pledges of empire and dominion to be delivered unto them , conceiving that the command of the sea , as well as the land was signified by such a token . the like may be affirmed of the west , for both polybeius , and appian affirme that the carthaginians enjoyed the command of the sea without all controversy , as received from their ancestors ; and if we take a view of these late times , as to the rights and customes of other nations , which at this present are in high reputation , we shall finde that the common-wealth of venice have enjoyed the dominion of the adriatick sea for many ages : the tuscans to this day have an absolute dominion in the tyrhene sea , and those of genoa in the lygustick ; the like we may alledge of the danes , the swedes , and the people of norway ; and to conclude , that the dominion of the sea is admitted amongst those things that are lawfull , and received into the customes of nations , is so far from contradiction , that nothing at all can be found to controule it in the custonies of our latter times , unlesse it be by some , who being borderers upon the sea-dominions of others , do strive to violate the rights of their neighbours , under the pretense of civil community . now as to the objection concerning the freedome of commerce and passage pretended to be common to all ; it is most evident from the customes of all times , that commerce , and free passage hath ever been so limited by princes in their territories , that it is either permitted , or prohibited according to the various concernments of the publick good. princes are concerned to be wary and carefull , that they admit no such strangers or commerce where the common-wealth may receive any damage thereby : and aristotle plainly and expresly saith , that provision ought to be made by lawes , with whom subjects may , or may not converse : moreover it is commonly provided in leagues , that it shall not be lawfull for either party to sayle into each others ports , coasts , or harbours with such a number of ships , as may give a just occasion of fear or jealousie that force is intended ; except leave be first had of that party under whose jurisdiction those places are , or unless they be driven thither by tempest , or other necessity , to avoid a greater force , or the danger of shipwrack : and to conclude , bodine affirmeth , that it is lawfull to prohibite any forreigner from entring the borders , and also to force him out , if he hath entred the borders , not only if a war be on foot , but also in time of peace , that the priviledges , safety , and welfare of the inhabitants may not be corrupted by conversation with strangers . as to that objection concerning the uncertainty of the sea , which ( it is alledged ) doth render it unfit for private dominion , because it is ever in motion , and in no wise remains the same : suppose we grant that it be so flowing , as is usualy said of the most northernly seas ; yet certainly the channels , and places through which the waters flow remain ever the same , although the waters themselves do shift , and change continually . in the germane empire , ( according to the civil law ) rivers are all of them of publick use , yet for all that , they are reckoned in the emperours private patrimony , and amongst the royalties belonging to his exchequer ; so that the emperour , or others by his grant , have a yearly revenue out of the fisheries in them ; neither is there any thing more common then an asserting of the private dominion of rivers , in the lawes of france , spain , poland , and venice , and , in a word , of all nations whose customes are known ; seeing therefore that a dominion and propriety of rivers hath been every where acknowledged , why should it not in the like manner be acknowledged , that there may be owners of any sea whatsoever ? since the always running and flowing nature of water can no more hinder a dominion in the one , then in the other , for the rivers themselves are but little seas ; as the sea it self , to its fluide constitution , is but a river , the one differing only in bignes from the other ; and so it hath been taken by the antients ; in the very history of the creation , all the gatherings together of the waters are called seas : many lakes have been called seas ; tiberias by st. luke is called a lake , but by the other evangelists a sea. asphaltites is by pliny , solinus , and others , termed a lake , but by moses in the fourteenth of genesis , the salt sea , and by most of the late writers , the dead sea. they indeed , who make use of such frivolous subtilties , as these to oppose the dominion of the sea deserve to be turned over to the phylosophers , heraclitus and epicharmus , who taught that every thing is so altered , changed , and renewed , that nothing in this world continues the same , as it was in the instant immediately going before . our bodies ( saith seneca ) are hurried like rivers ; whatsoever thou seest , runneth with time ; not one of all those things that are visible continueth ; i even whilest i speak of these changes am changed my self : but let such men as dream that the fluide inconstant nature of the sea disproves the private dominion of it , entertain the same opinion if they please with these men , and then they must of necessity grant also , that themselves are not owners or possessors , of houses , lands , or money , or any other thing whatsoever . as to that argument , that the water is open to all , and therefore by law , it must lye open at all times to all men , it is a very trifling argument . before the first distribution of things , there was no land which did not lye open unto all before it came under particular possession : in many places payment is made for the use of water ; as amongst the hollanders , they have in delph-land a custome , called , jus grutae , which hath ever been under the care of those officers , called in dutch , pluymgraven , whereby the beer-brewers are obliged to pay them the hundreth part for the use of the water . some men may here object that saying of antonius , i am sovereign of the world , but the law is sovereign of the sea. the true and genuine sense of those words is this , i am lord of the world , because i govern the world by my own law ; but the rhodian law , is the law of the sea , because by this law justice is administred on the sea ; therefore let this case of eudaemon concerning navigation be determined by the rhodian law , so far as none of our lawes doth oppose the same . there is no man unlesse he will renounce his own reason , who will affirme , that any denial is made of the dominion of the sea in that answer , or that the least tittle can be found in it against the dominion thereof . having thus in general given you an account , that almost amongst all nations , there hath been allowed a private dominion of the sea ; we shall now come more particularly to our selves , and acquaint you , that the antient brittains did enjoy and possesse the sea as lords thereof , before they were subjected to the roman power : it is upon good ground concluded , that the most antient history , whereunto any credit ought to be given about the affaires of brittain , is not elder then the time of cajus julius caesar , the ages before him being too obscured with fables ; but at his coming we finde many clear passages of the brittains dominion of the sea flowing about them , especially the south and east part thereof , as a perpetual appendant of the sovereignty of the island ; for at that time , they not onely used the sea as their own , for navigation , and fishing , but also permitted none , besides merchants to sayle into the island without their leave ; nor any man at all to view , or sound their sea-coasts , or their harbours : and though at caesars first arrival , they were terrified with the sight of his long ships beaked with brass or iron ; and they fled to the shore , and from it to the in-lands , being not sufficiently provided for such a sea-fight as was then at hand , and which they never had been acquainted with , yet most certain it is , that they had vessels of their own in which they used to coast about the neighbouring seas : and though mention is made by writers , that commonly they were framed with twiggs ( as the fashion then was in the more antient nations ) and covered with oxe-hides ; yet with good ground we may conceive , that they were wont to build , and set forth ships of war ; of a far more commodious , and solid substance , for the guarding of the seas , and the isles : we read in caesar's commentaries , that they were strong at sea , and it is not to be doubted , but that besides their twiggs and leathern vessels , they had a considerable navy which was able at pleasure to encounter the ships of their neighbours that were best armed : but the southernly parts of great brittain being invaded by the emperour claudius , and the isle of wight surrendred to them ; the brittish sea , following the fate of the island , was annexed with it to the roman empire . from the dominion of the brittish sea , as being continually united to the island , or an inseparable concomitant thereof , many remarquable passages have proceeded amongst those who have left unto posterity the atchievements of the romans , when they were masters of this island : but when the roman empire was declining , and they had scarce forces enough to guard the city it self , the brittains about the year of our lord , four hundred and fourscore , did cast off the roman government , and setled a common-wealth after their own liking : in the mean time the saxons inhabiting the shoar over against them , had a great and greedy mind unto it , who being a people extreamly given to piracy , the romans were accustomed to appoint an officer to drive them away , called , the count of the saxon shore throughout brittain . these saxons being sent for by the brittains to assist them against the scots and picts , did get at length the whole power into their own hand . these saxons being arch pirats , did not only know , but were familiarly acquainted with the dangers of the sea. the same may be said of the danes and normans , for these names being promiscuously used , do often signifie the same nation , as is sufficiently attested , by regino , dudo , the monk of malmesbury , and others : and these people had so great and so admirable a knowledge of the sea , and sea affairs , that by an exquisite observation of the tides , and ebbings of the sea , they were accustomed to reckon their months and years , yea , and to frame computations of years thereby . in antient records , diverse particulars are to be seen , which most plainly show , that both the saxons and danes had a dominion over the sea , whilest they reigned in brittain . in the reign of the english saxons , we read in asserius bishop of sherburn , that hengist being invited into england by the perswasions of vortigern , there came presently afterwards to recruit him octa and ebissa , who putting pitates aboard his ships , he charged them to guard the passages of the sea. you are to understand that the word pirate was not then taken ( as now commonly it is ) for robbers or rovers , but for such who being the most skilfull in sea-affairs , were judged to be the fittest men to encounter with their enemies ; the word , sayes my authour , doth seem to be deriv'd from the greek , for 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , or pira , in the greek tongue signifieth craft , or art , and from this art in maritine discipline they are now called pirates which infest the seas . but amongst these kings none was more potent then king edgar , who possessing an absolute dominion of the seas , sayled round about it every year , and secured it with a constant guard. it is recorded that these ships being very stout ones , were in number one thousand two hundred ; other writers affirm that they were foure thousand ; the abbot of jorvaux , john bramton by name , doth number them to be four thousand , and eight hundred sayle : and what dominion king edgar had , as absolute lord of the sea , appears in these words ; i edgar king of england , and of all the kings of the islands , and of the ocean lying round about brittain , and of all the nations that are included within the circuit thereof supream lord and governour , do render my thanks to almighty god my king , who hath enlarged my empire , and exalted it above the royal estate of my progenitors , who although they arrived to the monarchy of all england ever since athelstan ; yet the divine goodness hath favoured me to subdue all the kingdomes of the island in the ocean with their most stout and mighty kings , even as far as norway , and the greatest part of ireland , together with their most famous city of dublin . after him king canutus left a testimony whereby he most expresly asserteth the sea to be a part of his dominion : for placing himself by the sea side in the time of a high tide upon southampton shoare , he is reported to have made tryal of the obedience of the sea in this manner ; thou , o sea art under my dominion , as the land also which i sit upon is mine ; and there was never any that disobeyed my command without punishment ; therefore i command thee not to ascend upon my land , nor do thou presume to wet the feet or garments of thy sovereign : but although the event did not answer his expectation , yet most plain it is , that here he openly professed himself to be sovereign of the seas , as well as of the land. from the testimonies of the saxons and danes , we shall descend to the government of the normans ; where by many notable and cleer proofs we shall finde ; that . the custody , government , or admiralty of the english sea did belong unto the king , together with the dominion of the adjacent islands . . that the leave of passage through this sea , was granted unto forreigners upon request . . that the liberty of fishing , was upon courtesie allowed to forreigners and neighbours , and protection given to the fisher-men . . that laws , and limits were prescribed to forreigners ; who being in hostility the one with the other , but both in amity with the english , made prize of each other on the sea. . the records whereby this dominion is expressely asserted as a most undoubted right , and that not onely by the kings , but by the parliaments of england . as for the first , there is nothing more cleer , than that the kings of england , have been accustomed to constitute governours , or commanders , who had a charge to guard the english seas , and these were called custodes navium , or custodes maritimi . these were the officers that were called butsecarli , as may be gathered out of that breviary of england , called doomes day : in this number was thomas de moleton , who is stiled captain and guardian of the sea ; and hugh de cerquen ; afterwards the title of guardians , was changed into that of admiral , as is alleaged by thomas walsingham , in the days of edward the first . we finde that in the days of edward the third ; the principal end of calling that parliament , was concerning the preservation of peace , both by land and sea ; giving us to understand , that the land and sea together made one entire body of the kingdome of england . in the time of richard the second , hugh calverley was made admiral of the sea , saith the same author , and the universal custody of the sea was committed by our kings , to the high admirals of england . and that the dominion of the seas , is properly in the power and jurisdiction of the king , may appear by those tributes and customes that were imposed and payed for the guard and protection of them ; the tribute called the danegeld , was paid in the time of the english saxons , which amounted to four shillings upon every hide of land , for the defending of the dominion by sea. roger houerden affirmeth , that this was paid until the time of king stephen . afterwards subsidies have been demanded of the people in parliament , upon the same account ; and in the parliament-records of king richard the second , it is observable ; that a custome was imposed upon every ship that passed through the northern admiralty , that is , from the thames along the eastern shoare of england towards the north-east , for the maintenance of a guard for the seas . neither was this imposed onely upon the english , but also upon the ships of forreigners , payment was made at the rate of six pence a tun upon every vessell that passed by , such ships only excepted , that brought merchandize out of flanders into london . if a vessel were imployed to fish for herrings , it payed the rate of six pence a week upon every tun ; if for other kind of fish , so much was to be payed every three weeks , as they who brought coles to london from new-castle , paid it every three moneths ; but if a vessel were bound north-wards , to prussia , scone , or norway , or any of the neighbouring countries , it payed a particular custome according to the weight and proportion of the freight ; and if any were unwilling , it was lawful to compel them to pay . in this place we shall give you the copy of the usual form of a commission , whereby the high admiral of england is invested with authority for the guard of the sea ; it runneth in these words , vve give and grant to n. the office of our great admiral of england , ireland , wales , and of the dominions and islands belonging to the same , also of our town of calais , and our marches thereof , normandy , acquitayn , and gascoign ; and we have made , appointed , and ordained : and by these presents we make appoint , and ordain , ●im the said n. our admiral of england , ireland , and wales , and our dominions and isles of the same , our town of calais , and our marches thereof , normandy , gascoign , and aquitayn , as also general governour over all our fleets and seas of our said kingdomes of england , and ireland , and our dominions and islands belonging to the same ; and know ye further , that we of our especial grace , and upon certain knowledge , do give and grant to the said n our great admiral of england , and governour general over our fleets and seas aforesaid ; all manner of iurisdictions , authorities , liberties , offices , fees , profits duties , emoluments , wracks of the sea , cast goods , regards , advantages , commodities , preheminences , priviledges whatsoever , to the said officer our great admiral of england and ireland , and of the other places and dominions aforesaid , in any manner whatsoever belonging or appertaining . thus we see we have a continual possession or dominion of the kings of england by sea , pointed out in very expresse words for very many years ; we may add to this , that it can be proved by words plain enough in the form of the commissions , for the command of high admiral of england ; that the sea for whose defence he was appointed by the king of england , who is lord and sovereign of it , was ever bounded towards the south by the shores of aquitain , normandy , and picardy ; for although those countries sometimes in the possession of the english are now lost , and for many years under the jurisdiction of the french , yet the whole sea flowing betwixt our brittish isles , and the provinces over against them , are by a peculiar dominion and right of the king of england on those seas , subject unto them whom he puts in command over the english fleet and coasts , that there remaineth neither place nor use for any other commanders of that kinde : and as for the islands of gernesey , jersey , and the rest ; mr. selden affirmeth , that before a court of delegats in france , in expresse terms it hath been acknowledged , that the king of england hath ever been lord , not onely of this sea , but also of the islands placed therein , par raison du royalmed ' angleterre , upon the account of the realm of england , or as they were kings of england ; and in the treaty held at charters , when edward the third renounced his claim to normandy , and some other counties of france that bordered upon the sea ; it was added , that no controversie should remain touching the islands , but that he should hold all islands whatsoever which he possessed at that time , whither they lay before those countries y t he held there , or others ; for reason required this , that he should maintain his dominion by sea ; and both gernesey and jersey , as well as the isles of wight and man , in several treaties held betwixt the kings of england and other princes , are acknowledged not onely to lye neer unto the kingdome of england , but to belong unto it . but to give a greater light to this truth , we may from several records produce many testimonies ; that the kings of england have given leave unto to forreigners upon request to passe through their seas , he gave permission to ferrando vrtis de sarachione a spaniard , to sail freely from the port of london through his kingdomes , dominions , and jurisdiction , to the town of rochel . there are innumerable letters of safe conducts in the records , especially of henry the fifth , and sixth , whereby safe port and passage was usually granted ; and it is worthy of observation , that these kinde of letters was usually superscribed , and directed by those kings to their governours of the sea-admirals , vice-admirals , and sea-captains , . and to clear all at once , the kings of england have such an absolute dominion in the english seas , that they have called the sea it self their admiralty . and this we finde in a commission of king edward the third ; the title whereof is , de navibus arrestandis & capiendis , for the arresting and seizing of ships : the form of it runs in these words ; the king to his beloved thomas de wenlock his serjeant at armes , and lievtenant , to our beloved and trusty reginald de cobham , admiral of our fleet of ships from the mouth of the river of thames , towards the western parts greeting : be it known unto you , that we have appointed you with all the speed that may be used by you , and such as shall be deputed by you ; to arrest and seize all ships , flie-boats , barks , and burges of ten tun burthen and upwards , which may happen to be found in my foresaid admiralty ( that is , in the sea , reaching from the thames mouth , towards the south and west ) and to bring them speedily , well , and sufficiently armed to sandwich , &c. all officers also in the said admiralty , are commanded to yeild obedience and assistance upon the same condition ; thus , that the sea it self was contained under the name of the admiralty , is most clearly manifest , by what already we have shown you . and as a freedome of passage , so also ▪ we do finde , that a liberty of fishing hath been obtained by petition from the kings of england , we have already made mention , that king richard the second , imposed a tribute upon all persons whatsoever that used fishing on his seas . we read also , that henry the sixth , gave leave to the french , and other forreigners , sometimes for a year , sometimes but for six moneths , to go and fish throughout his seas , provided that the fishing-boats and busses , were not above thirty tuns ; and if any forreigners , whither french , dutch or others , should disturb or molest any of the kings subjects as they were fishing , they were to loose the benefit of their licence . but in the eastern sea which washeth the coasts of york-shire , and the neighbouring counties ; it hath been an antient custome for the hollanders and zelanders to obtain leave , by petitioning to the governour of scarborough castle . it is worth the while , saith the reverend mr. cambden , to observe what an extraordinary gain the hollanders and the zelanders do make by fishing on the english seas , having first obtained leave from the castle of scarborough ; for the english have ever granted them leave to fish , reserving always the honour , and the priviledge to themselves , but through a negligence resigning the profit unto strangers ; for it is almost incredible ( saith he ) to believe what a vast sum of money the hollanders do make by this fishing upon our coast ; mr. hitchock also , in the time of queen elizabeth , presented a book to the parliament written in the english tongue concerning the commodity of fishing ; in which he specifies , that the hollanders and zealanders every year towards the latter end of summer , do send forth four or five hundred vessels called busses , to fish for herrings in our eastern seas ; but before they fish , they ask leave of scarborough , they are his very words . care was also taken by k. james , that no foreigner should fish on the english or irish seas without leave first obtained , and every year at the least , this leave was renewed from the commissioners for that purpose appointed at london . but the reason why we do not so often meet with these forms of licences is , because by the leagues made with the neighboring princes , a licence , or freedom of that kinde was so often allowed by both parties , that as long as the league was in force , the sea served as it were a common feild , as well for the forreigner y was in amity , as for the king of england himself , who was the lord and owner of it . but a remarkable example of fishing in this nature we finde in the days of king henry the fourth . an agreement was made betwixt the kings of england and france , that the subjects of both kingdomes might freely fish throughout that part of the sea , which is bounded on this side by the ports of scarborough and southampton , and on the other side by the coast of flanders , and the mouth of the river of sein ; the time was also limited betwixt autumn , and the beginning of january . and that the french might securely enjoy the benefit of this agreement , the king of england sent letters unto all his sea captains and commanders . by this we may plainly see , that these limits wholy excluded the french from that part of the sea which lies towards the west , and south-west , as also that which lieth north-east of them as being so limited by our henry at his own pleasure , as lord and soveraign of the whole . there is amongst the records of edward the first an inscription , pro hominibus hollandiae , &c. for the men of holland , zealand , and friesland , to have leave to fish neer jernemuth , now called yarmouth ; the kings letter for their protection , runneth in these words . the king to his beloved and trusty , john de buteturte warden of his port of jernemuth greeting ; for as much as we have been certified , that many men out of the parts of holland , zealand , and freisland who are in amity with us , intend now to come , and fish in our seas neer unto jernemuth , we command you that publick proclamation be made once or twice every week , that no person whatsoever imployed abroad in our service , presume to cause any injury , trouble , dammage , hinderance , or grievance to be done unto them , but rather when they stand in need , that you give them advice , and assistance in such manner , that they may fish and pursue their own advantage , without any let or impediment . in testimony whereof , we have caused these our letters to be made pattents , and to continue in force until after the feast of st. martins next ensuing . here you see , that the king granteth a protection to fish , and he limits it within the space of two moneths . he alone also protected the fishermen upon the german coast , nor might the fishermen use any other kind of vessels then what were prescribed by our kings . upon which accounts all kind of fishing was sometimes prohibited , and sometimes admitted ; this restriction being added , hat they should fish onely in such vessels as were under the burden of thirty tun ; and this appears by the letters of king edward the third concerning the laws of fishing , which were directed unto the governours of several ports , and towns on the eastern shoar , the words are these ; for as much as we have given licence to the fishermen of the neighbouring ports , and to others who shall be willing to come unto them for the benefit of fishing ; that they may fish and make their own advantage with ships and boats under the burden of thirty tuns , any prohibition or commands of ours whatsoever to the contrary notwithstanding , we command you to permitt the fishermen of the said towns , and others who shall be willing to come to the said places for the benefit of fishing , to fish , and make their own advantage with ships and boats under-thirty tun , without any let or impediment , any prohibitions or commands of ours made to the contrary in any wise notwithstanding . this is evident also in the records of king edward the fourth , for he invested three persons with naval power , whose office it was to protect and guard the fishermen upon the coasts of norfolk and suffolk ; and the charges of the guard were to be defrayed by the fishermen of the said seas at the pleasure of the king of england , although they have letters of publick security and protection from foreign princes ; neither were any persons admitted to a partnership in this kind of guard , except those who were appointed by the king of england ; least by this means , perhaps it might derogate from the english right , which is a manifest sign and evidence of their dominion , and possession of the place ; and this may yet more clearly appear by the laws and limits usually set by our kings to such foreigners as were at enmity with each other , but in amity with the english : and to this effect , is the proclamation of king james ; who having made peace with all nations , did give equal protection to the spaniards , and the united neatherlands , at that time exercising acts of great hostility one against another ; our pleasure ( saith he ) and commandment is to all our officers and subjects by sea and land that they shall prohibite as much as in them lieth , all hovering of men of war of either spaniard or hollander neer to the entry of any of our coasts or havens ; and that they shall rescue and succour all merchants , and others that shall fall within the danger of any such as shall await our coasts : and it is further to be observed , that as our kings have very often commanded that all manner of persons should cease from hostility throughout all the spaces extended into their territories by sea ; so they indulged the like privilege for ever throughout the more neighbouring coasts of the french shore , that all manner of persons , though enemies to one another , should securely sayle to , and fro , as it were ▪ under the wings of an arbitrator , or moderatour of the sea , and also freely should use the sea , according to such spaces , and limits , as they were pleased at first to appoint , which without doubt is a clear evidence of dominion . in this next place , i shall cite some of the publick records which are kept in the tower of london , in which the dominion of the sea is expresly asserted , as belonging to the kings of england ; we read , that edward the third in his commissions given to geoffery de say , governour or commander of the western and southern seas , and to john de norwich of the northern , expresseth himself in these following words : we calling to mind , that our progenitors ▪ the kings of england , having before these times been lords of the english sea on every side , yea and defendors thereof against the invasions of enemies , do strictly require and charge you by the duty and allegiance wherein you stand bound , that you set forth to sea with the ships of the ports , and the other ships that are ready , and that you arrest the other ships under our command , and that with all diligence you make search after the gallies and ships of war that are abroad against us , and that stoatly and manfully you set upon them if they shall presume to bend their course towards any part of our dominions , or the coasts of scotland , &c. then followeth a power to press seamen , and other matters of that kind . we read also in the reign of the said king , in the preferring of a certain bill in parliament ( which is the voice of the estates of the realm ) that he was usually accounted king or sovereign of the seas by all nations ; the words in french are to this sence in english ; the nation of the english were ever in the ages past renowned for sea-affairs in all countries near the seas , and they bad also so numerous a navy , that the people of all countries esteemed , and called the k. of engl. the k. or sovereign of the sea. another testimony to the same effect we read in the parliamentary records of henry the fifth , where the tenour of the bill runs after this manner : the commons do pray , that seeing our sovereign lord the king , and his illustrious progenitors have ever been lords of the sea , and now seeing through gods grace it is so come to pass , that our lord the king is lord of the shores on both sides of the sea , such a tribute may be imposed upon all strangers passing through the said sea , for the benefit and advantage of our said lord the king , as may seem agreeable to reason , for the safegard of the said sea. the answer subscribed to the said bill , was , soit avise par le roy , which is , let the king himself be advised of it . for the king at that time resided in france , being lord of that country , as well by conquest , as inheritance ; and humphrey duke of glocester was then president of the parliament , and leivtenant of england , by whom as the kings deputy that answer was given to the said bill ; but when the king was present in person , le roy s' advisera , the king will advise , was the answer from the antient , down to our present times , in such bills as were to be passed into acts ; many other testimonies in this nature may be produced , which for brevities sake are purposely omitted . neither hath the high court of parliament onely given this attestation to our kings , as supream and sovereign of the seas : but to confirme it , we shall produce the testimonies of robert belknap , an eminent judge in the time of richard the second , who affirmeth , that the sea is subject to the king , as a part of his kingdom , or of the patrimony of the crown ; and it appeareth by publick records , containing diverse main points , touching which the judges of the land were to be consulted for the good of the common-wealth , that the kings sea-dominion , which they called , the antient superiority of the sea , was a matter out of question amongst all lawyers of that age , and asserted by the determinations and customes of the law of the land , and by the express words of the writs and forms of the actions themselves . neither is this truth confirmed only by our laws , but by our medals . there hath been a piece of gold very often coyned by our kings , called a rose-noble , which was stamped on the one side of it with a ship , floting in the sea , and a king armed with a sword and shield , sitting in the ship it self , as in a throne , to set forth a representation of the english k. by sea : the first authour hereof was edward the third , when he guarded his own seas with a numerous navy , consisting of eleven hundred ships , at which time , as at others he marched victoriously through france : but what need we labour to produce so many testimonies at home from our records in the tower and other places , from our high courts of parliament , from our laws , from our coyns , & from our histories , to prove this truth ; since it is acknowledged even by forreigners themselves whom it most concerneth , by their usual striking of sayles , according to the antient custom by every ship of any forreign nation whatsoever , if they sayle near the kings navy , or any ship belonging to it at sea , which is done not onely in honour to the english king , but also in acknowledgement of his sovereignty , and dominion at seas . the antiquity of this custome , and that it hath been in use for above these four hundred years may appear by this following testimony : at hastings , a town scituate upon the shore of sussex , it was decreed by k. john , in the second year of his reign , with the assent of his peers , that if the governour , or commander of the kings navy in his naval expeditions shall meet with any ships whatsoever by sea , either laden or empty , that shall refuse to strike their sayles at the command of the kings governour or admiral , or his lievtenant , but make resistance against any who be long unto his fleet , that then they are to be reputed enemies , and if they be taken , their ships and goods to be consiscated , as the goods of enemies ; and that , although the masters or owners of the ships shall alledge afterwards , that the same ships and goods do belong to the friends and allies of our lord the king , yet the persons who shall be found in these ships , are to be punished with imprisonment at discretion , for their rebeltion . it was accounted treason ( saith master selden ) if any ship what soever had not acknowledged the dominion of the king of england in his own sea by striking sayle , and they were not to be protected upon the account of amity , who should in any wise presume to do the contrary ; penalties were also appointed by the kings of england in the same manner , as if mention were made concerning a crime committed in some territory of his land. but above all , that as yet hath been said , there can hardly be alledged a more convincing argument , to prove the truth of all that hath hitherto been spoken , then the acknowledgement of the sea-dominion of the king of england by very many of our neighbouring nations . at what time the agreement was made by edward the first of england , and philip the fair of france , reyner grimbald , governour of the french navy , intercepted and spoyled , on the english seas , the goods of many merchants that were going to flanders , as well english , as others , and not contented with the depredation of their goods , he imprisoned also their persons , and delivered them up to the officers of the king of france , and in a very insolent manner justified his actions in writing , as done by authority of the king his masters commission . this being alledged to be done to the great damage and prejudice of the king of england , the prelats , peers , and the rest of the nation , a bill against reyner grimbald , was exhibited , and managed by procurators on the behalf of the prelates , peers , and of the cities and towns throughout england , and lastly , of the whole english nation , by an authority ( as i believe ) of the estates assembled in parliament ; with these were joyned the procurators of most nations bordering upon the sea throughout europe , ( viz. ) the genoeses , the catalonians , the spaniards , the almayns , the zealanders , the hollanders , the freislanders , the danes , the noruegians , the hamburghers , &c. all these instituted a complaint against reyner grimbald who was governour of the french navy , in the time of the. war of philip king of france , and guy earle of flanders ; and all these complainants in their bill do joyntly affirm , that the king of englandand his predecessors have time out of minde and without controversie , enjoyed the soveraignty and dominion of theenglish seas , and the isles belonging to the same by right of their realm of england , that is to say , by prescribing laws , statutes and prohibitions of armes , and of ships otherwise furnished , then with such necessaries , and commodities as belong to merchants , and by demanding security , and affording protection in all places where need should require , and ordering all other things necessary for the conservation of peace , right , and equity between all sorts of people passing through that sea , as well strangers as others in subjection to the crown ofengland ; also that they have had , and have the soveraign guard thereof with all manner of cognisance , and jurisdiction in doing right and justice , according to the said laws , ordinances and prohibitions , and in all other matters which may concern the exercise of soveraign dominion in the said places . this is the declaration of the nations above named , manifestly acknowledging the sovereignty and dominion of our kings over the seas , and thereupon demanding protection for themselves ; but more particularly we do finde an acknowledgment of the sea-dominions of the kings of england , made by the flemmings themselves in the parliament of england , in the reign of edward the second ; the records of the parliament speak it thus . in the fourteenth year of the reign ofedward the second , there appeared certain ambassadours of the earl of flanders , to treat about the reformation of some injuries they received ; and as soon as the said ambassadours had been admitted by our lord the king to treat of the said injuries , amongst other particulars they required , that the said lord the king would at his own suit , by vertue of his royal authority , cause enquiry to be made , and do justice about a depredation by the subjects of england upon the english seas , taking wines and other sort of merchandizes belonging to certain merchants of flanders , towards the parts of crauden within the territory and jurisdiction of the king of england ; alledging that the said wines and other merchandizes taken from the flemmings were brought within the realm , and jurisdiction of the king , and that it belonged to the king to see justice done , in regard thathe is lord of the sea , and the aforesaid depredation was made upon the said sea within his territory , and jurisdiction , &c. this we have cited out of the parliament records which may declare an acknowledgement of the sea-dominion of our kings , made by those foreign and neighbour-nations who were most concerned in the business . having given you thus ( besides the attestation of our own writers ) the acknowledgment of foreign nations , that the king of england hath the dominion of the seas ; we shall now come to give you an account of those northern seas , which came unto the subjection of the kings of england , at what time king james of blessed memory by reducing the two nations into one great brittanie united the crown of scotland to the crown of england . odericus in his ecclesiastical history informs us , that the orcades was subject heretofore to the king of norway , and that the people of the orcades do speak the gothish language to this day ; these isles are numerous , and onely twenty eight of them are at this day inhabited . above one hundred miles beyond the orcades towards norway , are the shetland isles in number eighteen , which are at this day inhabited , and in subjection to the king of scotland ; concerning which , there hath been a great quarrel in former ages between the scots and danes , but the dane kept the possession . all these islands , did christiern king of denmark peaceably surrender , together with his daughter in marriage , to james king of scots , until that either he himself or his posterity paid to the scottish king or his successors the sum of fifty thousand rhenish florens , which were never discharged to this day ; but afterwards when the queen had been delivered of her eldest son , the danish king being willing to congratulate his daughters good delivery , did for ever surrender his right in the islands of the orcades , shetland , & the rest unto the scottish king. this was in the days of james the third of scotland in the year , . a claim was afterwards laid to iseland , by q. elizabeth , and her successor k. james the sixth of scotland , and first of england , hath a dominion in the sea which lieth farr more northerly then iseland which is that of greenland ; for that sea having never been entred by occupation , nor used in the art and exercise of fishery , was first of all rendered very gainful through a peculiar fishing for whales by those english merchants of the muscovie company , who first sailed that way . the use of a sea never entred by occupation , and such a kinde of profit being first discovered , doth according to the manner of the claim give a dominion to the discoverer , who claims it in the right of another , as here in the name of the sovereign of england ; upon which ground it was , that king james in his letters of credence given to his ambassadour in holland , sir henry wotton did very justly say that the fishing in the north seas was his onely , and his by right . in the seventh year of the reign of king iames , this right was more strenuously asserted by proclamation , and all persons excluded from the use of the seas upon our coasts , without particular license ; the grounds whereof you have here set down in the proclamation it self . a proclamation , touching fishing . james by the grace of god king of great brittain , france , and ireland , defender of the faith , &c. to all and singular persons so whom it may appertein , greeting . although we do sufficiently know by our experience in the office of regal dignity ( in which , by the favor of almighty god , we have been placed and exercised these many years ) as also by the observation which we have made of other christian princes exemplarie actions , how farr the absolutenesse of sovereign power extendeth it self , and that in regard thereof , we need not yield account to any person under god , for any action of ours , which is lawfully grounded upon that iust prerogative : yet such hath ever béen , and shall be our care and desire to give satisfaction to our neighbour-princes , and friends in any action which may have the least relation to their subjects and estates , as we have thought good ( by way of friendly premonition ) to declare unto them , and to whomsoever it may appertain as followeth . whereas we have been contented since our coming to the crown , to tolerate an indifferent and promiscuous kinde of liberty to all our friends whatsoever , to fish within our streams , and upon any of our coasts of great brittain , ireland , and other adjacent islands , so farr forth as the permission or use thereof might not re●ound to the impeachment of our prerogative royal , nor to the hurt and damage of our loving subjects , whose prefer●ation and flourishing estate we hold our self principally bound to advance before all worldly respects : so finding that our continuance therein , hath not onely given occasion of over-great encroachments upon our regalities , or rather questiening of our right , but hath béen a means of daily wrongs to our own people that exercise the trade of fishing , as ( either by the multitude of strangers which do pre-occupie those places , or by the injuries which they receive most commonly at their hands ) our subiects are constrained to abandon their fishing , or at least are become so discouraged in the same , as they hold it better for them , to betake themselves to some other course of living ; whereby not onely divers of our coast-towns are much decayed , but the number of mariners daily diminished , which is a matter of great consequence to our estate , considering how much the strength thereof consisteth in the power of shipping and use of navigation ; we have thought it now both just and necessary ( in respect that wée are now by god's favor lineally and lawfully possessed , as well of the islands of great brittain , as of ireland , and the rest of the isles adjacent ) to bethink our selves of good lawful means to prevent those inconveniences and many others depending upon the same . in consideration whereof , as we are destrous that the world may take notice , that we have no intention to denie our neighbours and allies , those fruits and benefits of peace and friendship , which may be justly expected at our hands in honour and reason , or are afforded by other princes mutually in the point of commerce , and exchange of those things which may not prove prejudicial to them : so because some such convenient order may be taken in this matter , as may sufficiently provide for these important considerations which do depend thereupon ; we have resolved first to give notice to all the world that our express pleasure is , that from the beginning of the moneth of august next coming , no person of what nation or quality soever , being not our natural born subject , be permitted to fish upon any of our coasts & seas of great brittain , ireland , and the rest of the isles adjacent , where most usually heretofore any fishing hath béen , until they have orderly demanded and obtained licenses from us , or such our commissioners , as we have authorised in that behalf , viz. at london for our realms of england and ireland , and at edenborough for our realm or scotland ; which licenses our intention is , shall be yearly demanded , for so many vessels and ships , and the 〈◊〉 thereof , as shall intend to fish for that whole year , or any part thereof , upon any of our coasts , and seas as aforesaid , upon pain of such chastisement , as shall be 〈◊〉 to be inflicted upon such wilful offendors . given at our palace of westminster the . day of may in the th . year of our reign of great brittain ▪ anno dom. . notwithstanding this proclamation , the netherlanders proceeded still in their way of encroachment upon our seas and coasts , through the whole reign of king james , and were at length so bold as to contest with him , and endeavour to quarrel his majesty out of his rights , pretending , because of the long connivence of himself and queen elizabeth , that they had a right of their own by immemorial possession ; which some commissioners of theirs that were sent over hither , had the confidence to plead in terminis , to the king and his council . and though the king , out of his tenderness to them insisted still upon his own right , by his council to those commissioners , and by his ambassadour to their superiors , yet they made no other use of his indulgence , than to tire out his whole reign , and abuse his patience by their artificial delays , pretences , shifts , dilatorie addresses , and evasive answers . and all that the king gained by the tedious disputes , overtures , and dispatches to and again , was in conclusion onely a verbal acknowledgment of those rights ; which at the same time that they acknowledged , they usually designed to invade with much more insolence than before . but you have the main of what passed in those days in this particular , with their insolent demeanour , lively described in these following collections , taken out of several dispatches that passed betwixt secretarie naunton , and sir dudly carlton lord ambassadour from the king , to the states of the united provinces . in a letter of secretarie naunton's to the said ambassadour , dated at whitehall the . of december . i finde these passages . i must now let your lordship know , that the states commissioners and deputies both , having attended his majesty at new-market , and there presented their letters of credence , returned to london on saturday was a seven-night , and upon tuesday had audience in the council-chamber ; where being required to communicate the points of their commission , they delivered their meditated answer at length , the lords upon perusal of it , appointed my lord bining and me to attend his majesty for directions , what reply to return to this answer of theirs ; which i represented to their lordships yesterday to this effect : that his majesty found it strange , that they having been so often required by your lordship his majesties ambassadour , as from himself , in their publique assembly , to send over commissioners fully authorized to treat and conclude , not onely of all differences grown between the subjects of both states , touching the trade to the east-indies , and the whale-fishing , and to regulate and settle a joynt and an even traffick in those quarters , but withal to take order for a more indifferent course of determining other questions , growing between our merchants and them about their draperies and the tare ; and more especially to determine his majesties right for the sole fishing upon all the coasts of his three kingdoms , into which they had of late times incroached farther then of right they could ; and lastly , for the reglement and reducing of their coyns to such a proportion and correspondence with those of his majesties and other states , that their subjects might make no advantage to transport our monies by inhansing their valuation there : all which they confessed your lordship had instanced them for in his majesties name ; that after all this attent on his majesties part , and so long deliberation on theirs , they were come at last with a proposition to speak only to the two first points , and instructed thereunto with bare letters of credance only , which his majesty takes for an imperious fashion of proceeding in them , as if they were come hither to treat of what themselves pleased , and to give law to his majesty in his own kingdom , and to propose and admit of nothing but what should tend meerly to their own ends . to the second ; whereas they would decline all debate of the fishings upon his majesties coasts , first by allegations of their late great losses and an esmeute of their people , who are all interessed in that question , and would be like to break out into some combustion to the hazard of their state which hath lately scaped naufrage , and is not yet altogether calmed ; what is this put to raise an advantage to themselves out of their disadvantage ? but afterwards they professe their lothnesse to call it in doubt or question , claiming an immemorial possession seconded by the law of nations ; to which his majesty will have them told , that the kings of spain have sought leave to fish there by treaty from this crown ; and that the king of france ( a nearer neighbour to our coast then they ) to this day requests leave for a few vessels to fish for provision of his own houshold ; and that it appears so much the more strange to his majesty , that they being a state of so late date , should be the first that would presume to question his majesties antient right , so many hundred yeers inviolably possessed by his progenitors , and acknowledged by all other antient states and princes . that themselves in theit publick letters of the last of iune , sent by your lordship , seemed then to confirm their immemorial possession ( as they term it ) with divers treaties , as are of the year , . and another between his majesties predecessors and charles the fifth , as prince of those provinces , and not by the law of nations . to which their last plea , his majesty would have them told , that he being an islander-prince , is not ignorant of the laws and rights of his own kingdoms , nor doth expect to be taught the laws of nations by them , nor their grotius , whose ill thriving might rather teach others to disavow his positions ; and his honesty called in question by themselves , might render his learning as much suspected to them , as his person . this his majesty takes for an high point of his soveraignty , and will not have it slighted over in any fashion whatsoever . thus i have particulated unto you the manner of our proceeding with them ; let them advise to seek leave from his majesty , and to acknowledge him , his right , as other princes have done , and do ; or it may well come to passe , that they that will needs bear all the world before them , by their mare liberum , may soon come to have neither terram & solum , nor rempublicam liberam . and in a letter of the said lord ambassadour carlton to secretary naunton , of the . of december , . from the hague , we finde this return , touching the business of fishery . whether the final resolution here will be according to his majesties desire , in that point concerning the fishing upon the coasts of his three kingdomes , i cannot say ; and by somewhat which fell from the prince of orange , by way of discourse when he took leave of me on monday , last , at his departure ; i suspect it will not , in regard the magistrates of these towns of holland , being newly placed , and yet scarce fast in their seats , who do authorize the deputies which come hither to the assembly of the states in all things they are to treat and resolve , will not adventure for fear of the people , to determine of a business , on which the livelihood of fifty thousand of the inhabitants of this one single province doth depend . i told the prince , that howsoever his majesty , both in honour of his crown and person , and interest of his kingdoms , neither could nor would any longer desist , from having his right acknowledged by this state , as well as by all other princes and common-wealths , especially finding the same openly oppugned both by their statesmen , and men of war , as the writings of grotius , and the taking of john brown the last year may testifie ; yet this acknowledgment of a right and a due was no exclusion of grace and favour ; and that the people of this country paying that small tribute upon every one of their busses , ( which is not so much as disputed by any other nation whatsoever ) such was his majesties well-wishing to this state , that i presumed of his permission to suffer them to continue their course of fishing ; which they might use thereby with more freedom , and less apprehension of molestation and let then before , and likewise spare the cost of some of their men of war , which they yearly send out to maintain that by force , which they may have of courtesie . the prince answered , that for himself at his return from utrecht , he would do his best endeavour to procure his majesty contentment , but he doubted the hollanders would apprehend the same effect in their payment for fishing , as they found in the passage of the sound , where at first an easie matter was demanded by the king of denmark , but now more exacted then they can possibly bear : and touching their men of war , he said , they must still be at the same charge with them , because of the pirates . withal , he cast out a question to me , whether this freedom of fishing might not be redeemed with a summ of money ? to which i answered , it was a matter of royalty more then of utility , though princes were not to neglect their profit . and in another letter of the said lord ambassadour from the hague to secretary naunton , of the . of january , . he gives him to understand , that having been expostulated with , but in friendly manner , by certain of the states about his late proposition , as unseasonable and sharp , they said , they acknowledge their commissioners went beyond their limits in their terms of immemorial possession and immuable droict de gens ; for which they had no order . then , saith he , i desire them to consider , what a wrong it is to challenge that upon right , which these provinces have hitherto enjoyed , either by connivence or courtesie , and yet never without claim on his majesties side , &c. in another letter of secretary naunton's to the lord ambassadour carlton , of the . of january , . we read thus : as i had dictated thus far , i received direction from his majesty to signifie to the states-commissioners here ; that albeit their earnest entreaty and his gracious consideration of the present trouble of their church and state , had moved his majesty to consent to delay the treaty of the great fishing ▪ till the time craved by the commissioners ; yet understanding by newand fresh complaints of his martiners and fishers upon the coasts of scotland , that within these four or five last years , the low-country-fishers have taken so great advantage of his majesties tolleration , that they have grown nearer and nearer , upon his majesties coasts year by year , then they did in preceeding times , without leaving any bounds for the country . people and natives to fish upon their prince's coasts , and oppressed some of his subjects of intent to continue their pretended possession ; and driven . some of their great vessels through their nets to deter others by fear of the like violence from fishing near them , &c. his majesty cannot forbear to tell them that he is so well perswaded of the equity of the states , and of the honourable respect they bear unto him , and to his subjects for his sake , that they will never allow so unjust and intolerable oppressions ; for restraint whereof , and to prevent the inconveniences which must ensue , upon the continuance of the same . his majesty hath by me desired them to write to their superiours to cause proclamation to be made , prohibiting any of their subjects to fish within fourteen miles of his majesties coasts this year , or in any time hereafter , untill order be taken by commissioners to be authorised on both sides , for a final setling of the main business . his majesty hath likewise directed me to command you from him , to make the like declaration and instance to the states there , and to certifie his majesty of their answer , with what convenient speed you may . thus sarr secretary naunton to the ambassadour . now what effect the ambassadour's negotiation with the states had , appears by a letter of his from the hague , of the . of february , . to kings james himself , where , among other passages he hath this . i finde likewise in the manner of proceeding , that treating by way of proposition here , nothing can be exspected but their wonted dilatory and evasive answers ; their manner being to resey such propositions , from the states general to the states of holland . the states of holland take advice of a 〈◊〉 council residing at delph , which they call the council of the fishery . from them such an answer commonly comes , as may be expected from such an oracle . the way therefore ( under correction ) to effect your majestiesintent , is to begin with the filhers themselves , by publishing , against the time of their going out , your resolution , at what distance you will permit them to fish , whereby they will be forced to have recoursero their council of fishery ; that council to the states of holland ; and those of holland to the states-general , who then in place of being sought unto , will for contentment of their subjects , seek unto your majesty . a proclamation by king charles the first , for restraint of fishing upon his seas and coasts without lisence . where as our father of blessed memory kings james , did in the seventh year of his reign of great , brittain , set forth a proclamation touching fishing whereby for the many important reasons therein expressed , all persons , of what nation of quality soever ( being not his natural born 〈◊〉 〈◊〉 ) were restrained from fishing upon 〈◊〉 the coasts and seas of great brittain , ireland , and the rest of the istes adjacent , where most usually heretofore fishing had been , until they had orderly demanded , and obtained licenses from our said father , 〈◊〉 commissioners in that behalf , upon pain of such ●●●●…sement as should be fit to be inflicted upon such wilful offendors : since which time , albeit neither our said father , nor our self have made any considerable execution of the said proclamation , but have with much patience expected a voluntary conformity of our neighbours and allies , to so just and reasonable prohibitions and directions as are contained in the same . and now finding by experience , that all the inconveniences which occasioned that proclamation , are rather increased then abated : we being very sensible of the premises , and well knowing how farr we are obliged in honour to maintain the rights of our crown , especially of so great consequence , have thought it necessary , by the advice of our privy council to renew the aforesaid restraint of fishing upon our aforesaid coasts & seas , without license first obtained from us , and by these presents to make publick declaration , that our resolution is ( at times convenient ) to keep such a competent strength of shiping upon our , seas , as may ( by god's blessing ) be sufficient , both to hinder such further encroachments upon our regalties , and as●●●t and pro●●●● those our god friends and allies who shall henceforth , by virtue of our licenses ( to be first obtained ) endeavour to take the benefit of fishing upon our coasts and seas , in the places accustomed . given at our palace of westminster the day of may , in the twelfth year of our reign of england , scotland , france and ireland . this proclamation being set forth in the year , . served to speak the intent of those naval preparations made before in the year , . which were so numerous and well-provided , that our netherland neighbours being touched with the apprehension of some great design in hand for the interest of england by sea , and of the guilt that lay upon their own consciences , for their bold encroachments , soon betrayed their jealousies and fears , and in them a sense of their offences , before ever the proclamation was made publick : as i might shew at large ( if it were requisite ) by certain papers of a publick character yet in being . but there is one , instar omnium , which may serve in stead of all ; and it is an acute letter of secretary coke's that was written to sir william boswel , the kings resident then at the hague , the original whereof is still reserved among the publick papers : in which letter , he sets forth the grounds and reasons of preparing that gallant navy , with the kings resolution to maintain the right derived from his ancestors , in the dominion of the seas ; and therefore i here render a true copy of it , so farr as concerns this business , as most pertinent to our purpose . ( sir , ) by your letters and otherwise , i perceive many jealousies and discourses are raised upon the preparations of his majesties fleet , which is now in such forwardness , that we doubt not but within this month it will appear at sea. it is therefore expedient both for your satisfaction and direction , to inform you particularly what was the occasion , and what is his majesties intention in this work . first , we hold it a principle not to be denied , that the king of great brittain , is a monarch at land and sea to the full extent of his dominions , and that it concerneth him as much to maintain his soveraignty in all the british seas , as within his three kingdoms because without that , these cannot be kept safe ; nor he preserve his honour and due respect with other nations . but commanding the seas , he may cause his neighbours and all countries to stand upon their guard whensoever he thinks fit . and this cannot be doubted that whosoever will encroach upon him by sea , will do it by land also when they see their time . to such presumption mare liberum gave the first warning-piece , which must be answered with a defence of mare clausum : not so much by discourses , as by the louder language of a powerful navy , to be better understood , when overstrained patience seeth no hope of preserving her right by other means . the degrees by which his majesties dominion at sea hath of latter years been first impeached and then questioned , are as considerable as notorious . first , to cherish , and as it were to nourish up our unthankful neighbors , we gave them leave to gather wealth and strength upon our coasts , in our ports , by our trade , and by our people . then they were glad to invite our merchants residence , with what priviledges they would desire . then they offered to us even the soveraignty of their estates , and then they sued for license to fish upon the coasts , and obtained it under the great seal of scotland , which now they suppresse . and when thus by leave or by connivence , they had possessed themselves of our fishings , not onely in scotland , but in ireland and england , and by our staple had raised a great stock of trade ; by these means they so encreased their shiping and power at sea , that now they endure not to be kept at any distance : nay , they are grown to that confidence to keep guards upon our seas ; and then to project an office and company of assurance for the advancement of trade ; and withal , prohibit us free commerce even within our seas , and take our ships and goods , if we conform not to their placarts . what insolencies and cruelties they have committed against us heretofore , in ireland , in greenland , and in the indies , is too well known to all the world . in all which , though our sufferings and their wrong may seem forgotten , yet the great interest of his majesties honour , is still the same , and will refresh their memories as there shall be cause . for , though charity must remit wrongs done to private men , yet the reflection upon the publick may make it a greater charity to do justice on crying crimes . all this notwithstanding , you are not to conceive that the work of this fleet , is either revenge or execution of justice for these great offences past , but chiefly for the future to stop the violent current of that presumption whereby the men of war and free-booters of all nations ( abusing the favour of his majesties peaceable and gracious government , whereby he hath permitted all his friends and allies , to make use of his seas and ports in a reasonable and free manner , and according to his treaties ) have taken upon them the boldness , not only to come confidently at all times into all his ports and rivers , but to convey their merchants ships as high as his chief city , and then to cast anchor close upon his magazins , and to contemn the commands of his officers , when they required a farther distance : stance : but which is more intolerable , have assaulted and taken one another within his majesties chamber , and within his rivers , to the scorn and contempt of his dominion and power ; and this being of late years an ordinary practice which we have endeavoured in vain to reform by the ways of justice and treaties , the world i think will now be satisfied , that we have reason to look about us . and no wise man will doubt that it is high time to put our selves in this equipage upon the seas , and not to suffer that stage of action to be taken from us for want of our appearance . so you see the general ground upon which our counsels stands . in particular , you may take notice , and publish as cause requires , that his majesty by this fleet intendeth not a rupture with any prince or state , nor to infringe any point of his treaties ; but resolveth to continue and maintain that happy peace wherewith god hath blessed his kingdom , and to which , all his actions and negotiations have ohitherto tended , as by your own instructions you may fully understand . but withal considering , that peace must be maintained by the arme of power , which onely keeps down war by keeping up dominion ; his majesty thus provoked , finds it necessary even for his own defence and safety , to re-assume and keep his antient and undoubted right in the dominion of these seas , and to suffer no other prince or state to encroach upon him , thereby assuming to themselves or their admirals , any soveraign command : but to force them to perform due homage to his admirals and ships , and to pay them acknowledgements , as in former times they did . he will also set open and protect the free trade both of his subjects and alies : and give them such safe conduct and convoy , as they shall reasonably require . he will suffer no other fleets or men of war to keep any guard upon these seas , or there to offer violence or take prizes or booties , or to give interruption to any lawfull intercourse . in a word , his majesty is resolved , as to do no wrong , so to do justice both to his subjects and friends , within the limits of his seas . and this is the real and royal design of this fleet , whereof you may give part as you finde occasion to our good neighbours in those parts , that no umbrage may be taken of any hostile act or purpose to their prejudice in any kinde . so wishing you all health and happiness , i rest your assured friend and servant , john cook . white-hall , . april , . our style . the inestimable riches and commodities of the brittish seas the coasts of great brittain do yield such a continual sea-harvest of gain , and benefit to all those that with diligence do labour in the same , that no time or season in the year passeth away without some apparent means of profitable imployment , especially , to such as apply themselves to fishing , which from the beginning of the year unto the latter end , continueth upon some pat or other of our coasts , and therein such infinite sholes and multitudes of fishes are offered to the takers as may justly move admiration , not onely to strangers , but to those that daily be imployed among them . the summer-fishing for herring , beginneth about midsummer , and lasteth some part of august . the winter-fishing for herring , lasteth from september to the middle of november , both which extend in place from boughones in scotland , to the thames mouth . the fishing for cod at alamby , whirlington , and white haven , near the coast of lancashire , from easter untill whitsontide . the fishing for hake at aberdenie , abveswhich , and other places between wales and ireland , from whitsontide to saint james-tide . the fishing of cod and ling , about padstow , within the land , and of severn from christmas to mid-lent . the fishing for cod on the west-part of ireland frequented by those of biscay , galicia , and portugal , from the beginnig of april untill the end of june . the fishing for cod and ling on the north , and north-east of ireland , from christmas until michaelmas . the fishing for pilchers on the west coast of england from saint james-tide until michaelmas . the fishing for cod , and ling upon the north-east of england , from easter untill midsummer . the fishing of great staple-ling , and many other sorts of fish lying about the island of scotland , and in the several parts of the brittish seas all the year long . in september , not many years since , upon the coast of devonshire , near minigal , five hundred tun of fish were taken in one day . and about the same time three thousand pounds worth of fish in one day were taken at saint ives in cornwall by small boats , and other poor provisions . our five-men-boats , and cobles adventuring in a calm to launch out amongst the holland busses , not far from robinhood's bay returned to whitbie full fraught with herrings , and reported that they saw some of those busses take ten , twenty , twenty four lasts , at a draught , of herrings , and returned into their own country with forty , fifty , and an hundred lasts of herrings in one buss . our fleet of colliers not many years since , returning from newcastle , laden with coals , about the well , near flanborough-head , and scarborough , met with such multitudes of cod , ling and herring , that one amongst the rest , with certain ship-hooks , and other like instruments , drew up as much cod , and ling in a little space of time , as were sold well near for as much as her whole lading of cole . and many hundred of ships might have been there laden in two dayes and two nights . out of which wonderfull affluence , and abundance of fish swarming in our seas , that we may the better perceive the infinite gain which forreign nations make , i will especially insist upon the fishing of the hollanders in our coasts , and thereby shew how by this means principally they have increased . . in shipping . . in mariners . . in trade . . in towns and fortifications . . in power extern or abroad . . in publick revenue . . in private wealth . . in all manner of provisions ; and store of things necessarie . . encrease of shipping . besides seven hundred strand-boats , four hundred evars , and four hundred sullits , drivers and tod-boats , wherewith the hollanders fish upon their own coasts , every one of those imploying another ship to fetch salt , and carry their fish into other countries , being in all , three thousand sayle , maintaining and setting on work at least four thousand persons , fishers , tradesmen , women and children ; they have one hundred doyer boats , of one hundred and fifty tuns apiece , or there abouts ; seven hundred pinks , and well-boats from sixty to one hundred tuns apiece , which altogether fish upon the coasts of england and scotland for cod , and ling onely . and each of these employ another vessel for providing of salt , and transporting of their fish , making in all one thousand six hundred ships , which maintain and employ persons of all sorts , four thousand at least . for the herring-season , they have one thousand six hundred busses at the least , all of them fishing onely upon our coasts from boughonness in scotland to the mouth of thames . and every one of these maketh work for three other ships that attend her ; the one to bring in salt from forreign parts , another to carry the said salt , and cask to the busses , and to bring back their herrings , and the third , to transport the said fish into forreign countries . so that the total number of ships and busses plying the herring . fare , is , six thousand four hundred ; whereby every busse , one with another , imployeth forty men , mariners and fishers within her own hold , and the rest ten men a piece , which amounteth to one hundred twelve thousand fishers and mariners . all which maintain double , if not treble so many tradesmen , women , and children a land . moreover , they have four hundred other vessels at least , that take herring at yarmouth , and there sell them for ready money : so that the hollanders ( besides three hundred ships before-mentioned fishing upon their own shores ) have at least four thousand eight hundred ships only maintained by the seas of great brittain , by which means principally holland being not so big as one of our shires of england , containing not above twenty miles in length , and three in breadth , have encreased the number of their shipping , to at least ten thousand sayle , being more then are in england , france ▪ , spain , portugal , italy , denmark , poland , sweden , and russia . and to this number they add every day , although their country it self affords them neither materials , or victual , nor merchandise to be accounted of towards their setting forth . besides these of holland , lubeck hath seven hundred great ships , hamborough six hundred , embden fourteen hundred , whereunto add the ships of bremer , biscay , portugal , spain , and france , which for the most part fish in our seas , and it will appear that ten thousand sayle of forreign vessels and above , are employed and maintained by fishing upon our coasts . so that in holland there are built a thousand sayle at the least to supply ship-wracks , and augment their store , which as the prince , and common nursery , is the chiefest means onely to encrease their number . . encrease of mariners . the number of ships fishing on our coasts , as being aforesaid eight thousand four hundred . if we allow but twenty persons to every ship one with another , the total of mariners and fishers , amounteth to one hundred sixty eight thousand , out of which number they daily furnish their longer voyages to all parts of the world ; for by this means they are not onely enabled to brook the seas , and to know the use of the tackles and compass , but are likewise instructed in the principles of navigation , and pilotage ; insomuch as from hence their greatest navigators have had their education and breeding . . encrease of trade . by reason of those multitude of ships and marriners , they have extended their trade to all parts of the world , exporting for the most part in all their voiages our herring , and other fish for the maintenance of the same . in exchange whereof they return the several commodities of other countries . from the southern parts , as france , spain , and portugal , for our herrings they return oyles , wines , prunes , honie , wools , &c. with store of coin in specie . from the straits , velvets , sattins , and all sorts of silks , alums , currans , oyles , and all grocerie-ware , with much monie . from the east-countries for our herrings , and other french and italian commodities before returned , they bring home corn , wax , flax , hemp , pitch , tar , sope-ashes , iron , copper , steel , clap-board , wainscot , timber , deal-board , dollers , and hungarie-gilders . from germanie , for herrings , and other salt fish , iron , steel , glass , mil-stones , renish-wines , button-plate for armour , with other munition ; silks , velvets , rashes , fustians , baratees , and such like frankford-commodities , with store of rix-dollers . from brabant they return for the most part ready mony with some tapestries , and hull-shop . yea , some of our herring are carried as farr as braseil . and that which is more strange and greatly to our shame , they have four hundred ships with fish , which our men of yarmouth , within ken almost at land do vent our herrings amongst us here in england , and make us pray for the fish taken upon our own coast ready mony , wherewith they store their own country . . encrease of towns and forts . by this their large extent of trade , they are become as it were citizens of the whole world , whereby they have so enlarged their towns , that most of them within these four hundred years are full as great again as they were before ; amsterdam , leyden , and middleburgh having been lately twice enlarged and their steets and buildings so fair , and orderly set forth , that for beauty and strength , they may compare with any other in the world , upon which they bestow infinite sums of monies , all originally flowing from the bounty of the sea , from whence , by their labour and industry , they derive the beginning of all that wealth and greatness , and particularly for the havens of the aforesaid towns whereof some of them cost forty , fifty , or an hundred thousand pound . their fortifications also both for number , and strength , upon which they have bestowed infinite summs of money , may compare with any other whatsoever . . encrease of power abroad . such being then the number of the ships and marriners , and so great their trade , occasioned principally by their fishing ; they have not onely strengthened , and fortified themselves at home to repel all foreign invasions , as lately in the war between them and spain ; but have likewise stretched their power into the east and west-indies , in many places whereof , they are lords of the sea-coasts , and have likewise fortified upon the main , where the kings and people are at their devotion . and more then this , all neighbour-princes , in their differences , by reason of this their power at sea , are glad to have them of their party . so that , next to the english , they are now become the most redoubted nation at sea of any other whatsoever . . encrease of publick revenue . moreover how mighty the publick revenue , and customes of that state are encreased by their fishing , may appear in that above thirty years since , over and above the customes of other merchandize , excises , licenses , waftage , and lastage , there was paid to the state , for custome of herring , and other salt-fish , above three hundred thousand pound in one year , besides the tenth fish , and cask paid for waftage , which cometh at the least to as much more among the hollanders onely , whereto the tenth of other nations being added , it amounteth to a far greater sum . we are likewise to know , that great part of their fish is sold in other countries for ready monies , for which they commonly export of the finest gold , and silver , and coming home recoin it of a baser allay , under their own stamp , which is not a small means to augment their publick treasure . . encrease of private wealth . as touching their private wealth , if we consider the abundant store of herrings , and other fish by them taken , and the usual prises that they are s●ld for , as also the multitude of tradesmen & artizans , that by reason of this their fishing are daily set on work , we must needs conclude , that the gain thereof made by private men , must of necessity be exceeding great , as by observing the particulars following will plainly appear . during the wars between the king of spain , and the hollanders before the last truce , d●nkirk by taking , spoiling , and burning the busses of holland , and setting great ransom upon their fisher-men , enforced them to compound for great sums , that they might fish quietly for one year ; whereupon the next year after the fisher-men agreed amongst themselves to pay a doller upon every last of herrings , towards the maintenance of certain ships of war to waft and secure them in their fishing , by reason whereof there was a record kept of the several lasts of herrings taken that year , and it appeared thereby , that in one half year there were taken thirty thousand lasts of herrings which at twenty pound per last , amounteth to three millions six hundred thousand , and at sixteen , twenty , thirty pound the last , they are ordinarily sold , then transported into other countries , it cometh at least to five millions , whereunto if we add the herrings taken by other nations , together with the cod , ling , hake , and the fish taken by the hollanders , and other our neighbours upon the brittish coasts all the year long , the totall will evidently arise to be above ten millions . the great trade of fishing imploying so many men and ships at sea , must likewise necessarily maintain as great a number of trades-men , and artizends on land , as spinners , and hemp-winders to cables , cordage , yarn-twine for nets and lines , weavers to make saile cloaths , cecive packers , tollers , dressers , and cowchers to sort and make the herring lawful merchandise . tanners to tan their sails and nets ; coopers to make cask , block , and bowl-makers for ships , keel-men , and labourers for carrying and removing their fish , sawyers for planks , carpenters , shipwrights , smiths , carmen , boat-men , brewers , bakers , and a number of others , whereof many are maimed persons , and unfit to be otherwise imployed . besides the maintenance of all their several wives , and children , and families . and further every man and maid-servant , or orphant , having any poor stock , may venture the same in their fishing-voiages , which affords them ordinarily great encrease , and is duly paid according to the proportion of their gain . . encrease of provisions . and to conclude , it is manifest that holland only affording in it self some few hops , madders , butter and cheese aboundeth notwithstanding ( by reason of this art of fishing ) in plentiful manner with all kinde of provisions as well for life , as in corn , beef , muttons , hides , and cloaths ; as for luxury , in wines , silks and spices ; and for defence , as in pitch , tar , cordage , timber . all which they have not onely in comperent proportion for their use , but are likewise able from their several magazines to supply their neighbour-countries . the premises considered , it maketh much to the ignominy and shame of our english nation , that god and nature offering us so great a treasure even at our own doors , we do notwithstanding neglect the benefit thereof , and , by paying money to strangers for the fish of our own seas , impoverish our selves to make them rich. insomuch that for want of industry and care in this particular , two hundred twenty five fisher-towns are decayed and reduced to extream poverty , whereas on the contrary by diligent endevouring to make use of so great a blessing , we might in short time repair these decayed towns of the kingdom , and add both honour , strength , and riches to our king and country , which how easily it may be done , will appear by some few observations following . by erecting two hundred and fifty busses of reasonable strength and bigness , there will be employment made for a thousand ships , and for at least ten thousand fisher-men and mariners at sea , and consequently for as many tradesmen and labourers at land. the herrings taken by the busses will afford his majesty two hundred thousand pound yearly custom outward , and for commodities returned inward , thirty thousand pound and above . we have timber sufficient , and at reasonable rates , growing in our own kingdom for the building of busses , every shire affordeth hardy and able men fit for such employment , who now live poorly and idle at home . we have victuals in great plenty sold at easie rates without payment of excises , or impost . our shores and harbours are near the places where the fish do haunt . for drink , or nets , salting and packing our fish ; and for succour in stress of weather , we may bring our fish to land , salt and pack it , and from some part of his majesties dominions be at our markets in france , spain , or italy , before the hollanders can arrive in holland . we have means to transport our fishing into some northern councountries , where the hollanders seldome or never come . and though we had as many busses as the hollanders , yet is there vent for all , or more , for in the east and northern countries , and in many other places , herrings are every days meat , winter and summer , as well to draw on drink , as to satisfie hunger , and in most places the greatest part of the year they be scarce to be had ; for presently after michaelmas the sound and rivers are frozen up , so as no herrings can be transported into twenty several kingdoms , and free states until july , which is for thirty weeks space together ; so that when lent comes , there are few to be bought for money . lastly , since by care and industry we gained from the flemmings , doubtless so by the means we may as easily grow expert in the art of fishing , and in time make it a staple-commodity of our own . but this we shall the better and sooner do , if we consider and endeavour to reform certain wants and abuses which hitherto have hindred us from effecting that good and great work , whereof these that follow are none of the least . . general liberty of eating flesh contrary to old custom , and the statute-laws provided for observing fish-day , from whence our scarcity and dearth of fish proceedeth ; for where flesh is ordinarily spent , fish will not be bought , and want of sale decayeth all trade , gain being the nurse of industry . . want of order and discretion in our fishing , every man being left to himself and permitted to fish as best liketh him : whereas amongst the hollanders two of the best experienced fisher-men are appointed to guide the rest of the fleet , all others being bound to follow them , and to cast their lines according to their direction . . the hollanders and other nations set forth with their busses in june , to finde the shole of fish , and having found it , dwell amongst it till november , whereas we stay till the herring come home to our rode-steads ▪ and somtimes suffer them to pass by ere we look out , our herring-fishing conteining onely seven weeks at the most , and their 's twenty . . the hollanders busses are great and strong , and able to brook foul weather , whereas our cobles , crayers , and boats being small , and thin sided , are easily swallowed by a rough sea , not daring to adventure far in fair weather , by reason of their weaknesse for fear of storms . . the hollanders are industrious , and no sooner are discharged of their lading , but presently put forth for more , and seek for markets abroad as well as at home ; whereas our english after they have been once at sea , do commonly never return again untill all the money taken for their fish be spent , and they in debt seeking onely to serve the next market . . the hollanders have certain merchants , who , during the herring-season do onely come to the places where the busses arrive , and joyning together in several companies , do presently agree for the lading of thirty or forty busses at once , and so being discharged , they may speedily return to their former shipping ; whereas our fisher-men are uncertain of their chap-men , and forced to spend much time in putting off their fish by parcels . these and other effects would carefully be taken into consideration , and certain orders made to make our fishing prosperous , and succesful , especially considering the fearful mischiefs , the neglects hereof hath brought to the king and kingdom in general , and to many good towns and corporations in particular , as by authority even of parliament it self in the statute of . hen. the eight , is plainly testified , which i have summarily here set down , to avoid the prolixity of the original . because the english fisher-men dwelling on the sea-coasts did leave off their trade of fishing in our seas , and went the half-seas over , and thereupon they did buy fish of pickards , flemmings , normans , and zelanders , by reason whereof many incommodities did grow to the realm , viz. the decay of the wealth and prosperity as well of the cinque-ports , and members of the same , as of other coast-towns by the sea-side , which were builded , and inhabited by great multitudes of people , by reason of using and exercising , the craft and feat of fishing . secondly , the decay of a great number of boats and ships . and thirdly , the decay of many good marriners , both able in body by their diligence , labour , and continual exercise of fishing , and expert by reason thereof in the knowledge of the sea-coasts , as well within this realm as in other parts beyond the seas . it was therefore enacted , that no manner of persons english , denizens , or strangers at that time , or any time after dwelling in england , should buy any fish of any strangers in the said ports of flanders , zealand , picardie , france , or upon the sea between shoare and shoare , &c. this act by many continuances was continued from parliament to parliament , until the first of queen marie , and from thence to the end of the next parliament , and then expired . for conclusion , seeing , by that which hath formerly been declared , it evidently appeareth , that the kings of england , by immemorable prescription , continual usage , and possession , the acknowledgment of all our neighbour-states , and the municipal laws of the kingdom , have ever held the sovereign lordship of the seas of england , and that unto his majesty , by reason of his sovereignty , the supream command and jurisdiction over the passage , and fishing in the same rightfully apperteineth ; considering also the natural scite of those our seas that interpose themselves between the great northern commerce of that of the whole world , and that of the east , west , and southern climates , and withal the infinite commodities that by fishing in the same is daily made ; it cannot be doubted , but his majesty , by means of his own excellent wisdom and virtue , and by the industry of his faithful subjects and people , may easily , without injustice to any prince or person whatsoever , be made the greatest monarch for command and wealth , and his people the most opulent and flourishing nation of any other in the world . and this the rather , for that his majesty is now absolute commander of the brittish isle , and hath also enlarged his dominions over a great part of the western indies ; by means of which extent of empire , ( crossing in a manner the whole ocean ) the trade and persons of all nations ( removing from one part of the world to the other ) must of necessity first , or last , come within compass of his power and jurisdiction . and therefore the sovereignty of our seas , being the most precious jewel of his majestie 's crown ; and ( next under god ) the principal means of our wealth and safety , all true english hearts and hands are bound by all possible means and diligence to preserve and maintain the same , even with the uttermost hazzard of their lives , their goods and fortunes . thus you see what wonderous advantages may redound to the felicity , and glory of this nation , if god give hearts and resolutions to vindicate those rights which are now most impiously and injuriously invaded . there is also another dominion of the sea belonging to the king of great brittain , and that of a very large extent upon the shore of america , as on the virginian sea , and the islands of the barbadoes and saint christophers and many other places ; but how farr our english colonies transported into america , have possessed themselves of the sea there , is not exactly as yet discovered . a further assertion that the sea is under the laws of propriety , declared in a full convention betwixt ferdinando emperour of germany , and the republick of venice in the year , . at this convention the complaints on both sides were opened ; and it being required in the name of his emperial majesty , that it may be lawful for his subjects and others , to traffick freely in the adriatick sea ; it was answered by the advocate of the common-wealth of venice , that navigation indeed ought to be free , yet those things at which his imperial majesty found himself agrieved were no ways repugnant to this freedom , for as much as in countries which are most free ; those who have the dominion thereof receive custome , and do give bounds , and prescribe order , by which way all merchandize shall pass , and therefore none should finde themselves agrieved if the venetians for their own respects , did use to do so in the adriatick seas which is under their dominion , there being nothing more known then that the common-wealth of venice were lords of the adriatick sea , and do exercise that dominion which from time out of minde it had always done , as well in receiving of customes as in assigning of places for the exaction of it ; and that according to former capitulations , the subjects of the venetians were to have no less liberty in the lands of the austrians , then the austrian subjects in the sea of venice ; and if his imperial majesty within his own state upon the land , will not permit that the subjects of the common-wealth of venice shall go which way they list , but doth constrain them to go by such places onely where customs is to be paid , he cannot with justice demand that his subjects may passe by or through the sea of the republick which way they please , but must content himself that they passe that way onely , which shall best stand with the advantage of those who have the dominion over it ; and if his majesty cause custome to be paid upon his land , why may not the venetians likewise do it upon their sea ? he demanded of them if by the capitulation they would have it that the emperour should be restrained or hindred from the taking of custome ? and if not , why would they have the venetians tyed thereunto by a capitulation , which speaks of both potentates equally with the same words ; he proceeded in a confirmation of the truth that the republick had the dominion of the sea , and although the proposition was true , that the sea is common and free , yet it is no otherwise to be understood there in the same sence when usually we say , that the high-way are common & free ; by which is meant , that they cannot be usurped by any private person for his sole proper service , but remain to the use of every one ; not therefore , that they are so free , as that they should not be under the protection and government of some prince , and that every one might do therein licenciously whatsoever pleaseth him , either by right , or by wrong , for as much as such licenciousness , or anarchy both of god , & nature , as well by sea , as by land ; that the true liberty of the sea excludes it not from the protection and superiority of such as maintain it in liberty , nor from the subjection to the laws of such as have command over it ; but rather necessarily it includes it ; that the sea no less then the land is subject to be divided amongst men , & appropriated to cities and potentates which long since was ordained by god from the beginning of man kind , as a thing most natural ; and this was well understood by aristotle , when he said , that unto maritine cities the sea is the territory , because from thence they take their sustenance , and defence ; a thing which cannot possibly be , unless that part of it be appropriated in the like manner as the land is , which is divided betwixt cities and governments not by equal parts , nor according to their greatness , but as they have been , or are able to rule , govern , or defend them . bern , he said , was not the greatest city of switzerland , and yet it hath as large a teritory , as all the rest of the twelve cantons together ; the city of norimburg is very great , and yet the dominions and teritories of it do hardly exceed the wals . the city of venice it self for many years was known to be without any possession at all upon the firm land. upon the sea likewise , certain other cities of great force and valour have possessed a large quantity of it , and other cities of less force have contented themselves with the next waters ; neither are there wanting examples of such who notwithstanding they do border upon the sea , yet having fertile lands adjacent to them , have satisfied themselves with their land possessions without ever attempting to gain any sea dominion . others there are , who being awod by their more mighty neighbours , have been constrained to for bear any such attempt , for which two causes , a city notwithstanding it be maritine , and bordereth upon the sea , may happen to remain without any possession of the sea. he added , that god did institute principalities for the maintenance of justice , to the benefit of mankind , which was necessary to be executed , as well by sea as by land ; and st. paul said , that for this cause there were due unto princes , customes and contributions , that it should be a great absurdity , to praise the well governing , regulating , and defence of the land , and to condemn that of the sea ; and that if the sea in some parts thereof , for the ampleness and extream distance of it from the land is not possibly to be governed , and protected , it doth proceed from a disability , and defect in mankind , as in the same consideration there are desarts or wildernesses so great upon the land , as it is altogether impossible to protect them , witness the many sandy parts of affrica , and the immense vastities of the world but lately discovered ; and as it is a gift of god that a land by the laws , and publisht power be ruled , protected , and governed , so the same happeneth to the sea ; he said , that those were deceived by a gross equivocation , who affirmed that the land by reason of its stability and firmness may be governed , but not the sea , for being an unconstant element , it passeth , and hath a motion proper to it as well as the aire ; and if by the sea , and the aire , all and every part of those fluent elements be intended , it is a most certain thing that they cannot be governed , because whilst a man secureth himself with any one part of them , the other fliteth out of his power ; and this also hapeneth unto rivers , which cannot be restrained in their fluent motions ; but when mention is made to rule over a sea or river , it is not understood of the element but of the scite where they are placed ; the water of the adriatick sea doth continually run out of it , neither can it at all be kept in , and yet it is the same sea , as well as the thames , the rhine or the po are the same rivers now , as they were one thousand years agoe , and this is that which is subject to the protection of princes . he askt the germans , if their pretence were that tho sea should be left without protection , protection , so that any one might do therein whatsoever he listed , by robing , spoiling and making it unnavigable ; this he said , would be so absurd in reason , that he durst answer for them that they had no such pretence ; he therefore concluded , that therefore his majesty of germany by a necessary consequence must acknowledge , that it ought to be kept governed , and protected by those unto whom it did appertain by divine disposition , which if it were so , as indeed it is , he desired to understand if in their judgment it seemed to them a just thing , that such should do it with the expence of their own pains , and treasure , or rather that should contribute towards it who equally did enjoy the benefit ; and as to this , he said , he durst answer for them , the doctrine of saint paul being clear in this particular , that all such who are under government and protection , are thereby bound to pay customes and contribution ; much he said , might be alleaged in matter of law to confirm this truth ; and thereupon he concluded , that if the common-wealth of venice were that prince to whom it did appertain to govern and protect the adriatick sea , it of necessity must follow , that whosoever traffick , and saileth on their sea ought to be subject to their laws , in the same manner as such are who travail through a country upon land. from hence he did proceed to show that this dominion over the sea from time out of minde did belong to the common-wealth of venice ; and to prove this , he caused to be read out of an abstract which he had taken the opinion of thirty famous lawyers who from the year one thousand three hundred until the present time , did speak of the dominion which the common-wealth of venice had over the sea , as of a thing most known , and of which even in their times , the mind of man knew not the contrary , some of them affirming that the common-wealth of venice had no lesse dominion over the sea , then over the city of venice ; others maintaining that the adriatick sea is the territory and the demeans of the said city ; and to render this more evident , they do make mention of the lawful power which the venetians have to establish laws over navigation , and to impose customes upon such as traffique on those seas ; and he added , that he never read any lawyer which held forth to the contrary , moreover he told the advocate of the emperour , that if he would not believe those authors who testified that the sea belonged to the venetians , whereof they had possession from time out of minde , before the age wherein those authors lived , yet ●he could not deny to receive them for the testimonies of such things , which they saw , and knew in their times , and to hold them as witnesses far above all exception , being all of them famous men , though dead so many years agoe , and whose impartial pens could no ways be interested in the present differences . and because more then two hundred and fifty years were passed from the time that the authors whom he alleaged as witnesses hereof , did write to the time of those whose names he last of all did mention in that behalf ; he urged that by their attestation it was sufficiently proved , that for a long time more then so many years the common-wealth hath commanded the sea , and therefore he could not deny the assured and certain possession of it to the present . then addressing himself to the judges , he desired them to consider , that notwithstanding some of the above mentioned authors do speak in general words , and name at large the sea of the venetians , neither taking care to declare the quality or the quantity thereof , yet others more expresly do give it the title of the adriatick sea , which evidently doth demonstrate not onely the scite , but also the quantity of the sea possessed , and hereupon he explained himself , that those who speak more precisely ought to cleer the passages of those who write more generally , according to the common precept which is , that with cleer places the more obscure are to be illustrated ; he mentioned also the divers manner of speaking of the same lawyers , some deriving the dominion of the republick over the seas from custome , some from prescriptions , others from an induced subjection , and others from a privilege , which did arise all from this reason ; because , as they were most assuredly informed of the possession and jurisdiction of the said sea , which they both heard and saw to belong to the common-wealth time out of mind ; so they writing on the same subject not at the instance or the command of any one , but of their own proper motions , and by way of institution only , every one of them judged it most convenient to express the title of that jurisdiction , some with one term , and some with another , without coming to use the sole , true proper term , as they would have done if they had been put to write for the interest of any one , in which cases the lawyers are alwayes conformable , receiving from the person interested the like instructions . after the declination of the constantinopolitan empire , the adriatick sea was found to be for many years abandoned in such manner , as it remained unregard , and without the protection and government of any prince , and under the jurisdiction of none , untill it came into the power of the venetians , who to receive their lively-hood thereby , were constrained to maintain it in freedom , and thereupon taking it into their protection , they obtained the government , and the dominion over it : in like manner , as by the law of nature , and of nations , the land , the sea , and other things which are not under the dominion of any other , come justly into the hands of those who first do get the possession of them ; by which reason , the first empires were founded , as well upon the sea , as on the land , and daily there are new ones in the same manner formed , when any of them , either through age , or vice becoming weak wanteth force , and sinketh of it self , the which custody and government of the sea acquired the common-wealth of venice , hath daily advanced by the keeping of powerful fleets , with the expence of much treasure , and the effusion of as much blood , both of their citizens , and subjects , continuing without interruption in the sight of all the world their dominion and custody of the said sea , and overcoming and removing all impediments , as either by pirates , or by potentates , have at divers times been raised against them . after the testimony of the lawyers , he added , that of the historians , who do relate , that the common-wealth of venice for more then three hundred years past , did receive custom of such as sail'd that sea , and kept arm'd vessels in a readiness to compell all such ships so sayling to go to venice , testifying moreover , that even unto their present time the same custom was observed : but he dwelled not much upon their attestations , saying , that although they were good testimonies of preceding occurrences ; yet when we undertake to prove either the interests of princes , or of private persons , he ought to help himself by authentick writings , and to use the historians with great discretion , some of them being moved by love , others with hatred , and others with hopes of preferment , which constrains them oftentimes to use flatteries , or hyperboles , upon which cannot be laid any sure foundation : he therefore did produce an act of the general council held at lions in the year , one thousand two hundred seventy four , where the abbot of nervesa being delegated by the pope did sentence , that the venetians should not be molested in the defence , and protection of the adriatick sea , against the saracens and pirats , neither should they be disturbed by any from exacting their rights and customs , which they had of victuals , merchandize , or any other portable commodities . he added also that there remain the registers of licenses granted to pass their said sea , with armed vessels , or ships of war , and to the persons and goods belonging to their use , at the request of divers princes who had their possessions on the shore of the adriatick sea : but for the greater confirmation of all that had been said , he remembred the yearly ceremony used at venice , where the duke in the presence of the ambassadours of other princes , and more particularly of the emperours of germany doth constantly use to espouse the sea by casting a ring of gold into it with these words , desponsamus to mare in signum veri & perpetui dominii : we do marry thee o sea , in sign of our true and perpetual dominion over it ; which ceremony , as many writers do affirm , had its beginning when pope alexander the third was in venice , notwithstand they do add withall , that it was instituted in sign of the dominion which the republick had formerly gotten by the right of war. at the conclusion he produced the letters of many princes and potentates who joyntly acknowledged the truth of what he spoke , two of them were from the emperour frederick to giovanni mocernigo duke of venice , where having acquainted him of a certain quantity of corn , that was to pass through the adriatick sea , he desireth that he may be permitted to have a free passage , which will be to him a great pleasure , and he shall acknowledge it with many thanks . another letter was from beatrice queen of hungary to the duke above mentioned , where having informed him that she had divers things to pass through the adriatick sea , which could not be without his permission she desired that for courtesies and friendships-sake it might be granted her , which she should take for a great favour , and correspond with him on the like occasion . another letter was from matthias king of hungary to the duke of venice , where relating how the common-wealth of venice was accustomed every year to give license for the transportation of a certain quantity of corn , he prayed that the same grace might be shewed unto him , and that he would acknowledge it for a favour , and correspond accordingly . thus as in a glass , you may see the dominion of his majesty in his brittish seas clearly represented , asserted , and fully proved by that propriety of title and soverainty of power which the duke of venice exerciseth on the adriatick sea , which by the manner of prescription , the consent of histories , and even by the confession of their adversaries themselves is almost the same with his majesties of great brittain ; but his majesty hath one title more above all theirs , which is , the title of successive inheritance , confirmed as well by the law of nature , as of nations , and is so much the more considerable , in regard of the infinite advantages of the profits of it , as the brittish ocean in its latitude and circumference exceedeth the small boundaries of the gulph of venice . but in this great disputation ( where were present the most remarkable wits of italy and germany , and where the imperialists themselves and amongst them , one of the most eminent , stephen , baron of gourz attested openly , that the common-wealth of venice was patron of the adriatitk sea , and might impose what customs they thought fitting , and that all other the commissaries thought so in their consciences : ) there is enough , as may be thought in reason to convince all opponents , that may pretend to differ in judgement from us ; yet so it is , that the indulgence of the kings of england to their neighbouring nations , especially to the hollanders , by giving them too much liberty hath incouraged them to assume a liberty to themselves , and what at the first was but a license , they improve into a custom , and make that custom their authority ; insomuch , that some of the most busiest of them have openly declared against the kings propriety on the brittish seas : amongst these is one hugo grotius , a gentleman of great ingenuity , but in this particular so inclined to obey the importunities , and serve the interests of his country-men , that he disobliged himself of the truth , and moreover ( to speak the truth ) of his conscience it self , for it you look into his silvae , upon the first inauguration of king iames of ever blessed memory , he is pleased to express himself in these words , tria sceptra profundi in magnum cojere ducem , which is , that the rights of the english , scottish , and irish seas are united under one scepter , neither is he satisfied with this bare profession , but he goes on , sume animas a rege tuo , quis det iura mari , which is in english , take courage from the king , who giveth law unto the seas : in the same book , in the contemplation of so great a power , he concludeth , finis hic est , qui fine caret , that is , this is an end beyond an end , a bound that knoweth no bound , a bound , which even the winds and the waves must submit unto . but with what ingratitude have the dutch answered the many royal favours , which the kings of england have almost perpetually conferred on them : if there be no monster greater then ingratitude , what monsters are these men , who of late are so far from acknowledging their thankfulness , that like vipers , they would feed upon , and consume those bowells which did afford them life and spirit ? we may observe , that in their lowest condition , which is most sutable to the name of their abode , called the low countries , they petitioned to the majesty of the q●een of england , whose royal heart and hand being alwayes open to those that were distressed , especially those that were her neighbours , upon the account of religion , she sent them threescore thousand pound , upon the account of sir thomas gresham in the year , one thousand five hundred seventy and two ; and presently afterwards , there followed colonel morgan , colonel gilbert , colonel chester to assist them in their wars , who were the commanders of so many regiments of men ; and after them the war increasing , there were sent over colonel north , colonel cotton , colonel candish , and colonel norris , and some other persons of an eminent name , who for the honour of the english nation made there excellent demonstrations of their valour , and redeemed the dutch from the power of those who otherwise would have brought them to a better understanding of their duties : great supplyes of monies were sent over to maintain so great a charge : at the last , the prince of orange being slain presently after the death of the duke alanson ( brother to henry the third of france , ) who ( if the successe had answered the expectation ) was wisely enough made duke of brabant ; the queen of england sent over unto them robert duke of leicester with great provision both of men and money , accompanied with diverse of the nobility and gentlemen of good account ; and although the said earle , not long afterwards , returned into england and the affairs of the hollanders were doubtful untill the fatal battel at nieuport , yet queen elizabeth of ever blessed memory , out of her unspeakable goodness to the distressed , and to those that suffered for religion , did as long as she lived constantly assist the hollanders both with men and monies ; she gave them hope in despair , she gave them strength being weak , and and with the charity of her princely hand did support them being fallen ; and although the hollanders do ungratefully alledge , that it was a benefit great enough for the english to assist them in reason of state , because by so doing they kept out a war from their own country . it is most certain , that at that time the english had need to fear no warr , at all , but onely for their cause , and for taking their parts ; for it was for their cause that the english in the year , one thousand five hundred , and seventy one , had seized upon the sum of six hundred thousand ducats , on the west coast of england , being the money designed from spain to the duke of alva for the advancement of the spanish interests in the neatherlands : and although the hollanders do further alledge in their own excuse , that they were so grateful , as that they offered unto the queen of england the soveraignty of the neatherlands , which she would not accept , and therefore it was not their fault that she obtained it not ; it is in reason truly answered , that the queen of england , well knowing that she was in danger to draw a perpetual warr upon her self , and her successours , by the accepting of such a gift to which she had no right , did wisely refuse their liberality ; and yet for all that , she continued still to aid them without that chargeable obligation . the hollanders do further alledge , that the queen of england had the cautionary town of brill , flushing , and the other places delivered into her hands : it is true she had so , and thereby enjoyed only the benefit of being at more expence , both of men and money ; and let the reader take notice , that most certain it is , that the hollander had no sooner made a truce with the king of spain , and the arch-duke albertus , but he began presently to set the english at nought , and to take the bridle out of their hands ; whereupon immediately insued their forbiding of the bringing of english cloaths died , and dressed into holland , and the adjoyning provinces without ever making the king of england or his ambassadour leiger at the hague privy thereunto . and to make amends for this their saucy and insolent affront , in a more high and peremptory way they demeaned themselves to king iames himself ; for whereas the duke of lennox , as admiral of scotland , had by order from the majesty of king iames in the year , one thousand six hundred and sixteen , sent one master brown to demand of the hollanders then fishing upon the coasts of scotland a certain antient duty called , size herring , they began to contest with him about it , and after a long disputation they payed it , as in former times it had been accustomed , but not without some affronting terms ; that it was the last time it should be payed . and it is most observable , that the same gentleman coming the year following with the same authority and commandment with one only ship of his majesties to demand the duty aforesaid ; and with order , if he were denyed , to take witness of the refusal in writing , and so peaceably depart : he came aboard one of their ships , and no sooner demanded the aforesaid duty , but by the master of the ship , he was denyed it , who as plainly , as peremptority told him , that he was commanded by the states of holland not to pay it unto the king of england any more , of which he took witness according to his order from his majesty . this taking of witness did so startle the dutch , that before master brown had got off to his own ship , the master of another ship of holland came presently aboard that ship in which he was , who demanding of master brown , his name , he replyed that his name was brown ; why then , quoth he , if you be the man , i have order to arrest you , and to carry you into holland ; whereof master brown gave notice to the master of the kings ship , requiring him to advertise his majesty of this insolency ; and master brown was in this manner arrested , and carried away prisoner into holland , where for a while he was detained . i do read , that much about the same time one master archibald ranthin a scotch gentleman , and residing at stockholme in sweden , where he sollicited for the payment of some sums of monies due to the english merchants , there was at the same time in the same city one vandyke , who lying there as an agent for the states of holland , said unto some principal persons of the swedes , that they need not be so hasty in paying any monies to the subjects of the king of england , or to give them any high respect , because the said kings promises were not to be believed , nor his threatnings to be feared ; for which vile and insolent speeches bring afterwards challenged by master archibald ranthin , he had no better excuse , then to say , he was drunk when he did speak those words ( for deny them he could not ; ) and by this means his excuse of playing the beast ; did excuse him for playing the man. now from these insolent affronts by words , let us proceed , and come to what they have done by deeds , where in the first place , we may observe their rude demeanour to our english nation in the northern seas on the coasts of greenland , and those parts , about the fishing for whales , and the commodity of train oyle , where violently they have offered unpardonable abuses by giving of blows , and chasing the english-men away , and by procuring much loss and prejudice unto them ; their pride of heart was so high , that it would not give their reason leave to apprehend that fishing at sea is free for every man where it is not upon the coast of any country , unto which the dominion of the sea belongeth by antient prerogative . and yet all this is but inconsiderable in regard of their usage of our nation in the east-indies , where in open hostility they have as fiercely set upon them , as if they had been most mortal enemies , having in several encounters slain many of our men , and sunk sundry of our ships ; and when they had taken our men prisoners , they would use them in the sight of the indians , in such a contemptible and disdainfull manner , as if at their own home , and in the country of the butter-boxes ; the english in respect of them were but a sordid and a slavish nation , and the hollanders were either their superiours , and might use them at their own pleasure , or the english were so spiritless , or so unpowerfull , that they durst not be revenged , but quietly must put up all the affronts and injuries which they received at their hands . and as for the commodious trade which the english have had in muscovy for above these fourscore years , and some other countries that lye upon the east and north , which the hollanders , have now gotten quite out of their hands , to the great grief and prejudice of many merchants in this city : what shall we say , seeing not long since they have been acting the same again with our english merchants in turkey : and it is a practise so usual with them to spoyle the trade of other nations , that when they cannot find any occasion to do it , they will show a nature so wretchedly barbarous , that they will not stick to spoyle one another ; so great is their covetous and most insatiable desire of gain : and yet all this proceedeth out of an ignoble and a sordid spirit , for let them arrive to what wealth they will , they can never be the masters of a noble , and a generous disposition . had it not been for their neighbouring nation of the english , they had never arrived to the liberty of a free state , yet so ungratefull have they been , that they have endeavoured to forget all the obligations of humanity , and have digged into the very bowels of those who did preserve them . many examples of this may be instanced ; i shall look a little back again on the cruelty of their proceedings in the east indies , before their studied malice at amboyna , and afterwards of their horrid massacre at amboyna it self . as their avarice was unsatisfied , so their quarrels with the english were many ; covetousness and ambition not long enduring a co-partner . queen elizabeth being translated into a better world , and the hollanders ( to be the more ready to set the english at nought , ) having by the assistance of sir ralph winwood got the cautionary towns into their own possession , they presently began to appear in their true colours , by adding cruelty to hypocrisie , and avarice to insolence ; the english that were trafficking in the east indies being sensible thereof , and finding no redress , preferred their just complaints to the majesty of king iames , on which ensued the first treaty in the year , one thousand six hundred and thirteen , in the city of london , and after that , another treaty in the year , one thousand six hundred and fifteen , at the hague in holland , which taking up much time to little effect ; there was a third treaty which was held in london in the year , one thousand six hundred and nineteen , touching the differences between the english and dutch in the east indies , in which a full and solemn composition was made , and a fair order set as to the management of the affairs for the time to come ; but so restless were the spirits of the hollanders to make themselves the entire masters of the profits of the indies , that having driven from thence the spaniards and portugals , they at the last determined with themselves by subtility as well as strength , to force from thence the english also ; in pursuance whereof , some four years before the most barbarous proceedings at amboyna , they endeavoured to dispossess the english of the islands of banda , polleroone , and some others , famous for the rich spices of nutmeggs , cloves and mace ; and understanding by one of their spies , that captain courtupe was gone from his house and factory in polleroon to one of the adjacent clove-islands , called lantore , they did shoot him as he was in his boat upon his return , and being demanded the cause of so unexpected a murther , they sent word to the english that they should take no more care for him , for he was dead , and he should be buried ; although this was a great discouragement to the english that were there in their occupation of merchandize , yet some were afterwards so venturous , as to endeavour a settlement at lantore , amongst whom was master woofe a factor there , and the authour from whom we have received this discourse , and one who being taken not long afterwards by the dutch , indured almost as much misery , as a created nature can be capable of , which the ensuing narration will make manifest : he writeth of the dutch , that as often as he thinketh of their unparralleld and barbarous cruelty , he cannot but admire , and praise that great god who so much strengthened and inabled him to undergoe those heavy tortures and pressures which were loaden on him by those bloody patrons of cruelty . the dutch had no sooner notice that the english had raised a factory in the island of lantore , but sayling from iaccatra , now by them called bata via , they importuned the natives to surrender the island into their hands and custody ; sometimes they thought to have prevailed upon them with perswasions , and fair words fayling ; they would make use of foul , and threaten them with sword and fire ; and although they were not ignorant that a treaty had been held in london , and a full composition for the ending of all controversies , yet they informed the natives , that although they had given the island to the king of england , they need not to fear to disclaim what they had done by making them to become masters of it , for they said they could , nay , and they would interpose between all dangers and them , and assured them that they had strength enough to defend them against all the nations in the world ; they only desired of them a seizin of security to enjoy the profit of their fruits on those terms which the english had conditioned with them . the natives of the island being hereat in a great perplexity , and doubting amongst themselves what might be the event , if they refused a proffer , which carried an obligation of so much safety with it , did address themselves unto the english , and desired of them to be informed , how they might secure themselves from that deceitfull and cruell generation of men , whose perswasions were as plausible , as their threatnings terrible ; and understanding by the english , that they expected a considerable recruit both of men and ships to come suddainly unto them , they were resolved to be couragious , and not to yield to their treacherous perswasions : in this apprehension , the dutch not long afterwards desired of them after some flattering asseverations to give them , a seizin of security ; at which the natives pretending ignorance , told them , that they knew not the signification of the world , and seemed to be extraordinarily curious to understand the interpretation of it ; at which the dutch with as much mirth as confidence , having whispered amongst themselves , did after some deliberation tell them , that they must bring a great brass bason filled with earth , and plant in the middle of it the branch of a nutmeg-tree laden with fruit , and cause it to be presented to them by the chiefest men of their islands ; and this they told them was the sence and interpretation of the word . the natives having received this answer , did suddainly acquaint the english with it , to whom they were more inclined then to the dutch , as all the rest of those nations are ; and having advised with one another , they told the dutch in plain terms , that their demands were impossibilities , for should they recede from what already they had done , both god and man might justly brand them with infidelity , for to their apprehensions , they seemed to un-interest the english of what was their proper title , which by no means they could be induced to consent unto ; at which the hollanders being much incensed , told them , that since no perswasions would allure them to a knowledge of their own happiness , they must expect to find the reward of their obstinacy , for rather then be frustrated of their intentions , they were resolved to make a benefire of the island , they did advise them , not to trust to the english strength which could stand in no competition with theirs , for they owned them but as a handfull in comparison with themselves . this dispute being frustrated , and the dutch finding the natives of the island to be intractable to their demands , they prepared a great vessel which they had with battery guns , with a resolution forthwith to assault the town ; this great ship was called the float ▪ and besides her , they had in a readiness other less ships that lay against that part of the town , where the english factory was ; having for two dayes planted their batteries , and played against that place where by the flaggs and pendants of the red cross , they found the english factory to be , and finding the event not to answer the expectation , on the first of march , ( five dayes after their first assault ) they found the means to land their men , and enter the town ; they had placed in their front a considerable number of the nation of japan being all armed with guns like unto cullivers with barrels of brass , who making way for the hollanders , did such execution , that the out-cry in the streets was terrible , men , women , and children being cut in pieces , and the town a shamble of dead persons . the english being but few in number were taken prisoners , and saluted with the titles of base rogues and villains , they were bound unto posts by hands and neck , they were bruised , beaten and buffered , they were afterwards ty'd back to back , and so the stronger was inforced to carry the weaker to one of the dutch ships , called the holland , where they were laden with irons , and tormented with variety of tortures ; insomuch , that the author of this discourse , who was a factor at lantore , and one of those who did partake in these grievous torments , hath these express words ; for my own part , i seriously protest , that if it pleased god , the great determiner of all things , to command me to yield my body to be tortured , i had rather by far choose the turkish then the dutch tormentors , for their cruelties i am confident are far transcending the turkish extremities , and i know their viperous inclinations to the english will not be consumated untill their compleated iury shall surfeit it self into an unparalleld revenge . many dayes were they thus tormented , and some of them being most sadly troubled with the flux , these unmercifull people would not let them out of their bolts , but compelled them to use the same dish to receive their excrements , in which all of them constantly did eat their meat ; these things were unsavoury indeed , but these inhumane creatures would not be sensible of their calamities ; at the last it pleased god , that some english ships sayling that way , and being informed what the dutch had acted at lantore , one of the captains , captain fitz herbert by name , sent to the dutch to demand the prisoners , who being conveyed to his ship , he wondered at their unsightly complexion , and the lameness of their bodies , the one being eaten in with irons , and the other quite decayed for want of eating ; by his means their release being obtained , they had liberty to depart to the island of polleroon . and here they continued not long , but the dutch who would have no factories in the east-indies but their own , did again seize upon them , and having plundred them to their very shirts , they imprisoned them in a castle which was in that island , where they continued enduring many extremities until the noise of their sufferings , and durance being again divulged , they were again relieved by some english ships that passed that way ; and the reason why they used so much cruelty to the english , being demanded , no other thing being to be laid unto their charge , but onely their buying of cloves upon the islands ; the dutch at their discharge told the prisoners , that in regard they were the first english-men that ever they took buying of cloves upon that island , they were willing to spare their lives , but if for the time to come , they should ever take an english-man in the same nature , they would not be so favourable as to hang him , but they would whip him to death ; and speaking in contempt of the english , they have been heard to speak words to this effect . alas ! what is england if compared to our high and mighty states of the neatherlands , we know that we have ships enough to block up all the english , and if any difference should arise , the proof should manifest the truth , for they would show us what the dutch men were , if ever they could find opportunity to put their designs in agitation ; the authour of this discourse to show the candour of his spirit , in the representation of so sad a subject ; i protest , saith he , and shall be ready at any time to justifie it with my life , that i have not expressed any thing but what is really correspondent to the truth , and i am very much astured , that there be those now living , who can testifie with me the many tragioal designs , that have not onely been acted on us , but upon many others . neither was this their arrogancy , and cruelty expressed to the english alone , but the inhabitants of china have had the sad experience of it , it being the common practise of the dutch to seize upon their vessels as they came down to trassique in those rivers , and and having plundered their ships , to drown the men. in the year , one thousand six hundred and seventeen , the inhabitants of the banda islands , made a present to captain ball , at that time president of bantam , and besought him that he would so far be pleased to compassionate their sorrowfull conditions , as to accept of their present , and receive their islands into his jurisdiction , by defending them from the tyrannies of the intruding and unmerciful hollanders , whose practise it was , daily to exact upon them , and to murther them at their pleasures , and to abuse their wives whiles themselves were inforced to look on , and not dare in the least to resist them ; moreover their drunkenness was such , and so habitual to them , that it was almost a wonder to see them sober ; they told him , if he were pleased to accept of what they proffered , he should very much oblige them , and no wayes prejudice himself nor the english nation . to which captain ball replyed , that he much lamented their misfortune , but in regard that they had made a surrender of their island already to the dutch , it was not consonant to reason , that he should take away that by force from the dutch , which they had obtained by favour , he therefore desired them to cease their importunity ; to which the bandaneses replyed , that if that were all the obstacle , it might easily be removed , for they generally protested , they never gave the least consent to the hollanders to possess their islands , but that they wilfully and violently entred upon them without their consent , and though that oftentimes they had desired , yet the dutch had never received any assurance of submission from them , the unworthiness of their actions having deterred the bandaneses from condescending to their perswasions . hereupon captain ball became willing to receive them into his protection to the great comfort of the afflicted indians . captain ball continued president not long after , for captain iourdan arrived with sir thomas dailes fleet , in the year , . at what time captain ball was commanded home ; howsoever the cruelties against the poor bandeneses in many of their islands still continued , and grew to such a height , that they hardly could be parallel'd , and for no other cause , but that their affections were so generally , and so servently expressed towards the english . mention hath already been made of the taking of the chief town in the island of lantore , and how barbarously the dutch dealt with the english factory there ; it is worthy your observation , that the greatest part of the inhabitants flying for their safety into the highest hills of that island , were courted by the dutch to submit , and surrender themselves , and that they should be received into favour and protection ; hereupon they came down in great numbers , and four hundred of the chiefest of them being picked out amongst the rest , they were transported into an adjacent island , where having washed themselves , accordingly as they had been advised , they were all invited to a great dinner , and intreated with many welcomes ; they told them , they were heartily sorry that they should so much distrust them as to fly to the english , there being none that desired their safety and welfare more then themselves , and that they would be friend them against all opposers ; they desired that all differences whatsoever may be absolutely composed ; and all former injuries forgotten ; to which purpose , to give them a manifestation of their respects , they had transported them thither , and provided what for the present could be had for their refreshment . the poor inhabitants being much surprized at this unusual manner of respect , having fed heartily , and expressed their thankfulness , prepared for their departure , but the dutch leading them to a window , told them , that they must walk to yonder green , and take their farewell of them there , for there their executioners stood in a readiness to dispatch them ; whereat the poor bandeneses being much amazed , cryed out , o apetow ! which is in english , o what is this ! immediately they were hurried away to the place of execution , and by the iapan slaves , the cruel instruments of the hollanders , they were cut asunder in the middle alive , and their divided quarters were sent some of them to lantore , some of them to polleroon , and other islands belonging unto banda . in the same year , they put to death the chiefest of the inhabitants of polleroon , amongst whom was the chief priest of that island , in whose side the dutch having cut a hole , they commanded that gun-powder should be put into it , which at that instant being set on fire , by a new way of torment they deprived him of his life . it is very observable , that although these inhabitants of polleroon were under the english protection , yet their numbers being inconsiderable to the strength of the dutch , the english durst not contradict them ; so that these poor people were not only murdered before their faces ; but the english perceiving how tyrahnical withall the dutch were , and how incroaching upon them , and what were their cruelties which they practised at amboyna , of which more in its due place ; in the year , one thousand six hundred and twenty two , they abandoned the banda islands which the dutch have ever since possessed , and do still wrongfully and unjustly enjoy , not permitting the enlish to have any commerce with them . and in this place i shall not forget to give you the memorable account of the innumerable shoales of mackerell which was the chiefest thing that supported those islands , they came always in their season in great multitudes , and if at any time they appeared not so numerous , they were sure to have arrived within the limits of two or three dayes , and in far greater abundance then usually before ; but after that the english had left those islands , they did forsake them also , as places polluted with blood , and avarice , or as if they would come to no coasts , but where humanity and probity , or at least where the english had their residence . much about the same time , captain iourdan sayling from bantham with two ships , the one called the sampson , the other the hound , to the great islands of burnew , he discovered three or four dutch ships standing in for the same port , and being confident that they intended no good to him , he gave order to prepare for the encounter , fully resolving to fight it out to the last man , rather then to yield himself to the unmerciful hands of his insulting and approaching enemies ; the dutch summoned the english to deliver the ships upon fair quarter , but captain iourdan a well complexioned man , who had a great heart in a little body , absolutely refused to yield upon any condition whatsoever . the dutch pretending to be unwilling to shed blood , called out to the english , and told them , that they knew very well that little captain iourdan was there , and desired them to perswade him to parley with them ; captain iourdan being informed of it , refused to have any conference with them ; whereupon they desired that he would but show himself upon the quarter deck , that by a fair complyance they might stop the effusion of blood , which otherwise must come to pass ; whereupon captain iourdan ( thinking that to speak with them could not much prejudice him ) did show himself on the quarter deck , & after the exchange of some few words ; told them , that he knew the justice of his cause , and the injustice of theirs , and was resolved to fight it out : the hollander alledging that their strength was far greater then his , and it was rather desparateness then true valour to fight upon such a disadvantage ; it prevailed nothing at all with captain iourdan , who told them , he questioned not his own strength , but was resolved to fight it out , and to leave the success unto god. the dutch finding him intractable to their demands , did hold him still in discourse , until a musquet bullet from one of their ships laid him dead upon the deck , as he was in parley with them : at that very instant of time , whether by treachery , or by accident it is uncertain , a part of our other english ship called the hound , was blown up , and many of our men mortally hurt ; the amazement was so great , that the english were inforced to yield to the mercy of their enemies , who having taken them , did cause them to be laden with bolts , and did not allow them so much favour as to the heathen , for they were permitted to walk up and down with a chain of iron , which is far more easie then to lye in bolts of iron . thus may we observe , what injury and wrong we have all along sustained by the dutch , who have got many of those islands where now they have seated themselves by cruelty and blood-shed , and by murthering the english and their friends ; these indeed are sad relations , and though dismall in themselves , they are but the prologues to the tragedy at amboyna . amboyna is an island lying near unto seran , fruitful of cloves , for the buying and gathering whereof the english company had for their parts planted five factories , the chiefest whereof was at the town of amboyna ; but the hollanders who had already dispossessed them of their residence at polleroon , and at lantore , had a labouring desire to heave them out also at amboyna , and at bonda , several complaints and discontents did every day arise , which were transferred to iaccatra in the island of iava major to the council of defence of both nations there residing , who also not agreeing in points of difference did send them over into europe to be decided by both companies here , or if they could not agree amongst themselves , they should then be determined by the kings majesty , and the lords the states general according to the article of the treaty in the year one thousand six hundred and nineteen , which although it was then articled and agreed upon by both nations , yet the ambition and avarice of the dutch , would not admit of so deliberute a course , but with rash hands would of themselves cut their way to their own ends , and use neither delay nor conscience where gain or profit did appear . the english factories at amboyna began to be rich , and were a great eye-fore unto them who could not indure that any should traffick there but themselves ; on the eleventh therefore of february , in the year , one thousand six hundred and twenty two , a laponen who served the dutch as a souldier was apprehended upon suspition of treason , and put to the torture , the pretense was for asking the sentinel , what was the strength of the castle ? the extremity of the torture was such , that it prompted him to confess whatsoever he perceived they would have him to say , which was , that himself , and sundry others of his country-men there had contrived the taking of the castle ; upon this confession ( which made a great noyse amongst the dutch , and administred them a subject upon which to act , even according to their own desires ) divers other iaponers were examined and tortured ; this examination continued four dayes , during which time , diverse english men that belonged to the factory , had every day their ingress into the castle and egress from it , they heard of the torturing of the japoners , and of the crime laid to their charge , never dreaming of the bait that was prepared for themselves : at the same time there was prisoner in the castle one abel price , an english man , for threatning in a drunken humour to set a dutch mans house on fire : the dutch being glad they had such an instrument to work on in their custody , they showed him some of the japoners whom most grievously they had tortured , and told him , they had confessed that the english had combined with them for the taking of the castle ; whereupon having put him also to the torture , they enforced him to confess whatsoever they desired of him ; immediately upon this , captain towerson and the rest of the english that were in amboyna , were sent for to the governour of the castle : they in obedience to the command , did all of them repair unto him , one man excepted , that was left to keep the factory ; the governour told captain towerson , that he and many other of the english nation were accused of a conspiracy to surprize the castle , and were to remain under custody untill a further tryal ; instantly they attached the person that was left at home in the factory , and the merchandize of the english company was taken into the dutch custody by inventory ; all their chests , boxes , books , writings , and whatsoever was of any value in the english house were seized on , captain towerson was committed to his chamber , having a guard of dutch souldiers ; emanuel thomson , one of the chiefest of the factors , was kept prisoner in the castle , seven others , viz. john beaumont , edward collins , william webber , ephraim ramsey , timothy johnson , john fardo , and william brown were sent aboard the ships of the hollanders then in harbour , some to one ship , some to another , and all made fast in irons : the rest of the english that were in the other factories in the same island were apprehended ; samuel colson , john clark , george sharrock were found in the factory at hitto , and edward collins , william webber , and john sadler in the factory at larica , who were all brought prisoners to amboyna . john powel , john weatheral , and thomas ladbrook were apprehended at cambello , and john beaumont , william griggs , and ephraim ramsey at loho , and brought in irons to amboyna on the th . day of february . in the mean time the governour and the fiscal intend to lose no opportunity , in the prosecution of the fine plot that was contrived ; john beaumont , and timothy johnson are sent for from aboard the unicorn ; being come into the castle , beaumont was left with a guard in the hall , and johnson was taken into the place of torture , where by and by to the great grief and astonishment of his heart and understanding , beaumont heard him to make a lamentable out-cry , and then to be silent for a little while , and not long afterwards to be as loud in his hideous complaints , if not louder then before ; after this torture abel price the chyrurgion , who was first of all wracked , was brought in to accuse him ; but johnsons heart being as stout as it was innocent , and not confessing any thing , he was remanded to the torture again , where beaumont heard him to roar , and cease from roaring , and then to roar out again , enough to soften the hardest stones into compassion ; having been a whole hour in this purgatory of fire and water , they brought him forth wet all over , and burned in severall places of his body , and so laid aside in a by-place in the hall , with a souldier to watch him that he should speak to no man. after him emanuel tompson was examined in a room adjoyning to that where johnson had been tortured , where being an hour and a half in his examination , and his torment , he was carried another way , and passed not through the hall , where beaumont attended , and every hour expected the dreadfull summons ; at the last , beaumont was called in , and with deep protestations denying what was propounded to him , he was made fast to the rack , and the cloath being tyed about his neck , and two men with jarrs of water in their hands being ready to pour it on his head , the governour commanded that he should be taken down again saying , that he would forbear him a day or two longer , because he was an old man. the next day being sunday , robert brown was called in , and being on the rack , and the torment of water given him , he confessed all as the fiscal asked . after him was edward collins called in , whose hand and feet being fastned to the rack , he prayed to be respited , saying , he would confess all ; but being let down , with great oaths and execrations he protested his innocency as before , yet told them , that because he knew that by torture , they would : make him to confess any thing , though never so contrary to the truth , they should do him a great favour to tell him what they would have him to confess , and he would acknowledge it to avoid the torture ; at which the fiscal being angry , he was hoysted up again , and the torment of water being given him , he was not able to endure it , but prayed to be let down again to his confession ▪ after which having deliberated a little with himself , he confessed he had a hand in the plot for the surprisal of the castle , and being demanded of the fiscal , whether captain towerson were not an associate in the conspiracy ; he answered , no ; whereupon the fiscal told him , that he lied , for said he , did not he call all of you of the english factories unto him , and tell you , that the daily affronts and abuses of the dutch had put a plot into his head , and that he wanted nothing but your consent and secrecy ▪ a dutch merchant standing by said ; and did not you all swear upon the bible to be secret to him ? collins with great protestations replyed , that he knew nothing at all of it : being then delivered again into the hands of the executioner , the sense of the late torture so prevailed upon him , that he confessed all to be true which they had spoken . being thus respited , he was demanded , whether the president of the english at iaccatra , or master welden agent for the english at banda were not privy to the business ; to which he again answered , no ; afterwards the fiscal propounded other interrogatories unto him , and perceiving that collins knew not what answer to make , he helped him to confess those things which he thought most conducing to his purpose . next to him was samuel colson brought in , who for fear of the pain when he saw edward collins come forth , chose rather to deny nothing that was propounded to him then undergo the torments of fire and water in the attestation of his innocence : but iohn clark was of another resolution , he was no sooner brought in by the souldiers and officers , but by and by he was heard to make a hideous and a lamentable complaint , which continued for the space of two hours , during which time as they abated or increased his torments , he diminished or doubled his cryes at the sense and horrour of his sufferings . the two elements of fire and water , although merciles of themselves , by making their fury more deliberate , were here instructed to be more unmercifull , whiles accurate cruelty did torment even invention it self to torment the innocent ; the rack ordained for the confession of great and grievous offences is oftentimes but an unfaithfull discoverer of them ; for whiles men are put to those torments , which flesh and blood are not able to endure , they confess those crimes which their flesh and blood were no wayes accessary to . two hours was this poor man under the torment of fire and water , yet confessed not any thing , at which his tormentors being amazed , they did cut off his hair , thinking belike , that the strength of his resolution lay in his hair , when indeed it lay in the justice of his cause , and the innocence of his conscience . afterwards they hoysed him up again , and with lighted candles they did burn him in the bottom of his feet , untill the moisture that dropped from them did put out the candles , yet even then they applyed fresh lights unto him ; they burnt him also in the elbows , and in the palms of his hands , and so horridly under his arm-pits , that his inwards might evidently be seen ▪ at the last , when they perceived that he could make no handsome confession , they led him along with questions of particular circumstances which they had framed of themselves ; and being wearied and overcome with torments , he at last , according to their own wishes , made answer to whatsoever they demanded of him . being then released from his martyrdom , they sent him out by four negroes , who carried him between them to a dungeon , where he lay five dayes without any chyrurgian to dress his wounds , untill his flesh being putrified great maggots creeped and dropped from him in a most loathsom , and noysome manner . in the like manner , the rest were all examined , but none of them were so heavily tortured , for some of them to avoid the torment , made suddain confessions , others at the first or second drenching with the water , answered to all the interrogatories of the fiscal . captain towerson himself being reserved amongst the last , untill the torments of those that were examined before him might rack out something from them that might evidence against him , was brought into the court , where these younkers of holland , like another council of rehoboam sate in judgement upon him , he deeply did protest his innocence , to encounter which they produced the persons and confessions of samuel colson , william griggs , and john fardo , samuel colson being told , that unless he would make good his former confession against captain towerson , he should be commanded again to the torture of fire and water , did coldly and faintly re-affirm what before he said , and so was dismissed ; the other two being brought face to face before captain towerson , he charged them , as they would answer it at the dreadful day of judgement to speak nothing but the truth , at which both of them trembled down upon their knees , and besought him for god's sake to forgive them , they openly acknowledged that that whatsoever they formerly had confessed was most false , and spoken only to avoid the torment ; upon these words the fiscal , and the rest of this high court of justice did command them again to the torture , which they would not endure , but affirmed their former confession to be true . i do find this torment was so terrible to flesh and blood , that it even startled the courage of captain towerson himself , who either to avoid the horrour of the torment , or the infamy of it , confessed some words which the factor of cambello in the isle of seran , master john weatherall should speak , who being sent for , and examined on the day following , the captain was brought forth to justifie what before he had confessed , who desiring mr. wedtheral to speak the truth , and nothing but the truth as god should put it into his heart ; mr. weatheral was in a great amazement , and being ordered to undergo the torture of water , and told , that if water would not make him to confess , fire should ; he prayed them to tell him what he should say , or to write down what they themselves pleased , and he would subscribe unto it ; but being told that he needed no tutor , and that they would make him to confess of himself , having hoysted him up four several times , and perceived that he knew not what to say , they did read unto him the confession of the other men that had been examined , and asked him from point to point , and he observing very well which way the world did go , and that his life must become a sacrifice to the rage and rapine of the dutch , did still answer yea unto all . on the of february old stile , the prisoners were all brought into the great hall of the castle to be prepared for death , by their ministers , being solemnly condemned the day before , some few of them found mercy , and had their lives saved ; captain towerson , was kept apart from the rest , and so was mr. emanuel tomson , but some of them by writing found the opportunity to leave a testimony of their innocence behind , amongst whom was captain towerson , who in the end of a bill or obligation wrote these words ; firmed by the firm of me gabriel towerson now appointed to die , guiltless of any thing that can justly be laid unto my charge , god forgive them their guilt and receive me into his mercy . amen . william griggs , also did leave a paper to be sent to mr. welden agent at banda , which came afterwards into his hands ; the tenour of it was in these words : we whose names are here specified , john beaumont , william griggs , abel price , robert brown , prisoners in the rotterdam , being apprehended for conspiracy for blowing up the castle of amboyna , being adjudged to death , were through torment constrained to speak that which we never meaned or imagined , the which we take upon our deaths and salvation , for they tortured us with that extreame torture of fire and water , that flesh and blood could no wayes endure it ; and this we take upon our deaths , that they have put us to death being guiltless of our accusation : so therefore we desire that those who imployed us may understand these wrongs , and that you your selves would have a care to look to your selves , for their intent was to have brought you in also ; they asked concerning you , and if we had been tortured on that particular , we must have confessed you also . and so farewell . master welden having perused this letter , and observed the bloody and inveterate malice of the dutch against the english , did not long afterwards leave the island of banda to the dutch , and the english factories in the mollu●co islands did follow his example . samuel colson , also in a psalter which he had , did leave this attestation of his innocence . the japoners were taken and brought to examination , and being most tyrannously tortured were asked if the english had any hand in their plot , which torture made them say yea ; immediately mr. tomson , mr. johnson , master collins , and john clark were examined , and burned under the arms , arm-pits , the hands , and soals of the feet , with another most miserable torment , of water , some of them being almost tortured to death , were forced to confess that which they never knew , by reason of the great torment , which flesh and blood is not able to endure . then were the rest of the english men called , ( amongst whom i was one , ) being wished to confess , or else i must go to torment ; they withall caused master johnson , who was before tormented , to witness against me , or otherwise he should be tormented again , which rather than he would endure , he said , he would confess whatsoever they would have him : and for my part , i also must confess that which i never knew , or else i must go to torment , which rather than i would suffer , i confessed that , which ( as i shall be saved before almighty god ) is not true , being forced to it for fear of torment . at the last they did make us to bear witness against captain towerson , and by the same violence for fear of most cruel torments , they made captain towerson to confess the like , for which we all must dye . as i hope to have pardon for my sins , i know no more than the child unborn of this business , for which we all must suffer . written with my own hand the first of march , stilo novo . samuel colson . other attestations there are to the same effect , which for brevities sake i omit , i shall only insert , that all things being prepared for execution , the condemned were brought forth out of the hall , and passed along by the chamber where the acquitted and pardoned were , who stood in the door to give and take the farewell of their country-men that were then going to the execution ; making a little stay for this purpose , they intreated and charged those that were saved to bear witness to their friends in england of their innocence , and that they died not like traytors , but as so many innocents meerly murthered by the hollanders , whom they prayed to god to forgive their blood-thirstiness , and to have mercy on their own souls . it is observable , that being brought into the yard , their sentence was there read unto them from a gallery , and from thence they were carried to the place of execution , together with nine japons and one portugal , whom their specious malice to give a better pretense unto their cruelty , had contrived to be of the same confederacy : they did not go the ordinary and short way , but round about through the town , and were guarded with five companies of souldiers , dutch and amboyners , and the natives of the island flocked together to behold this triumph of the dutch over the innocent and condemned english . and it is not to be forgotten , that , on the day before , the english desired of the dutch ministers , that they might all receive the sacrament , as a seal of the forgiveness of their sins ; which by no means would be granted them ; whereupon master colson said unto them , you declare unto us the danger of dissimulation in this case ; but tell us , if we suffer guiltless , being true believers in christ jesus , what shall our reward be ? the minister answered , by how much the more innocent you are , by so much the glorious shall be your resurrection ; upon that word mr. colson imbraced him , and gave him his purse and such money as was in it , saying , sir , god bless you , tell ●he governour i freely forgive him , and intereat you to exhort him to repent of his bloody tragedy wrought upon us poor innocent souls , and proceeding in his discourse , he spake with a loud voice in these words , according to my innocence in this treason , so o lord pardon all the rest of my sins , and if i be guilty thereof more or less , let me never be partaker of thy heavenly joyes ; at which words every one or the rest cryed out , amen for me , amen for me , good lord. this being said , each of them knowing whom they had accused , addressed themselves one unto another , begging forgiveness for their false accusations , being wrested from them either by the pain , or by the fear of torture ; whereupon they all of them freely did forgive one another , for none of them had been so falsely accused , but he himself had as falsely accused another . in particular george sharrock knecled down to john clark and craved forgiveness at his hands , who freely did forgive him , saying , how shall i look to be forgiven of god , if i should not forgive you , having my self so falsely accused captain towerson and others . this master ●olson had contrived a prayer in writing which he did read to his fellows the night before their suffering , and now also at the place of execution , where having devoutly pronounced the fame , he let the paper fall from his hand , which the governour caused to be brought unto him , and he kept it . the names of those that suffered were , cap. gabriel towerson , samuel colson , emanuel tomson , timothy iohnson , iohn weatheral , iohn clark , william griggs , iohn fardo , abel price , robert brown. they had prepared a cloath of black velvet for captain towerson's body to fall upon , after his head had been severed from it , which being stained , and defaced with his blood , they sent to the english company and put it on their account . they sent the mourning cloath to the english , but the scarlet of their blood-guiltiness they retained to themselves . having thus given you an account of the barbarous cruelty of the dutch in the east-indies , it is now high time to look to their proceedings in the west-indies , where we shall find their cruelty as unparallel'd as their avarice . the perfidiousness and ingratitude of the hollanders to the english may be traced all along ever since the shook of their obedience to the king of spain even unto this present time . but we will pass from their hypocrisic and cruelty practised abroad , and look on their actions at home ; how , almost but the very other day , did they labour to impose upon his. majesty , and sir george downing , his envoy extraordinary , by delivering papers to many publick ministers of state at the hague , as if his majesty and his envoy had been prepossessed with them , when they had not the least notice of any such thing ? how have they seemed to be most desirous of peace , when at the same time they have omitted no dayes , even those appropriated for holy duties to drive on their preparations for war ? how have they stood in defence of their violent and unjust proceedings , and instead of redressing their injuries , they have increased them ? about three years since , they concluded a treaty with the english , and having ingaged , that better order should for the future be observed , they have since heaped new injuries to the utter over-throw of all the trade of his majesties subjects in the east and west-indies ; witness our ships , the hope-well , the leopard , and some others in the east-indies ; and the charles , the james , the mary , the sampson , the hopefull aduenture , the speed-well on the coast of africa ; and after all these acts of the highest injustice , and their utmost endeavours for driving on a war , they would make the world believe that his majesty is the first undertaker of it , who from his own mouth to their ambassadour in england , and by his injunctions to sir george downing his minister at the hague hath given so many , and such remarkable demonstrations to the contrary : what can they say to the memorial of the complaints which sir george downing exhibited to the states general , importing that in the space of a very few years almost twenty english ships with their whole lading , to a very great value , have been seized upon in a horrible manner , and the men in them most barbarously , and most inhumanely treated , being put into stinking and nasty dungeons , and holes at castel . del . mina , where they did lye bedded and bathed in their own excrements , having nothing but bread and water given them , and not enough of that neither to sustain nature , [ their bodies being under the fury of exquisite and horrid torments ; ] and when any of them died , the living and the dead were left together , and such as out-lived that cruelty , were exposed in the woods to famine , or to the mercy of wild beasts in those desolate countries , or to be carried into captivity by the natives by which means several hundreds of his majesties good subjects have perished and been destroyed ; and unto this hour , notwithstanding all sollicitations and endeavous of his majesties envoy , not one penny of satisfaction can be had , either for the loss of the ships , or the persons concerned in any of them , but to the contrary they have ever since hindred , and shot at the english ships that have anchored by them , and have took by force all the boats of those natives who have endeavoured to come aboard them , and have seized also upon the english boats that would go on shore , and deprive them of all manner of provision , nor suffer so much as fresh water to be brought unto them ; and to give a further proof of their confidence and ambition , they have published a declaration , wherein they assume and challenge to themselves a right to that whole coast , to the exclusion of all other nations ; although , by order from his majesty , sir george downing , both in publick conferences with the deputies of the lords general , as also with those of holland in particular , hath at large remonstrated his majesties right , and interest in some part therein , having by his subjects bought the ground of the king of that country for a valuable consideration , and built a factory thereon ; and yet for all this , some of the dutch-west-india company by fraud and ireachery have got into the place , and no hopes of the restitution of it , but they are resolved to keep by violence what they have gained by deceit . moreover , what can they say for themselves concerning their stirring up the king of fantin by rewards and sums of money , and supplying him with all manner of arms and ammunition for the surprizing of his majesties castle at cormantin in the west-indies ; so that an absolute necessity is imposed upon his majesty , and his subjects , either of losing all that have been actually taken from them , and abandoning for ever that trade it self , or of betaking themselves to some other wayes for their relief ; and what hope is there of their restoring back any place which they have once taken . the island of polleroon hath been upon surrendring back to the english , ever since the year , . at which , by a solemn and particular treaty it was promised to be done ; and again , by another treaty in the year , . and by an order of the states general , and the east company of that nation in the year , . and again by another treaty in the year following ; and yet to this day , there is not the least mention of any thing restored ; and should any man then think it strange , that his majesty after so long an experience of the perversness and deceitfulness of that nation should suffer his subjects to repossess themselves of those places , which by the hand of violence and oppression they have forced from them . now as for the business of the new-neatherlands , as they are pleased to call it , it hath been abundantly else-where prov'd , that the said land is part of the possession of his majesties subjects of new england , which their charter plainly and precisely expresseth : and those few dutch that have lived there heretofore , have lived there meerly upon the connivence and sufferance of the english , which hath been permitted to them so to do , so long as they demeaned themselves peaceably and quietly ; but the dutch not contenting themselves therewith , have incroached more and more upon the english , imposing their laws and customs , and endeavouring to raise contributions and excises on them , and in those places where the dutch had never been , whereupon they have been necessitated several times to send souldiers for the repulsing of them : since the conclusion for the late treaty the dutch have made new incursions upon the english , and given them many new provocations , and have ordained a tryal of causes amongst themselves , and a proceeding by course of arms , without any appealing into europe at all . and can any prince then think it strange , especially the king of france , if his majesty of england suffer his subjects to rescue themselves from such continual vexations , seeing the king of france himself hath been pleased this year , to order his subjects to re-possess themselves by force of arms of a certain place called cayen , which the french alledge hath been wrongfully kept from them by the west-india - company of the neatherlanders . as for the business of captain holmes at capo verde in guiney , a complaint was no sooner made to his majesty , this last year , in the moneth of june ; but his majesty immediately returned answer , that he had given no order nor direction there into captain holmes , and that upon his return , he would examine the business , and see that right should be done according to the nature of the offence : in order whereunto , when captain holmes was returned , his majesty sent him to the tower , and being afterwards allowed the liberty of some few dayes to follow his particular business , he was again commanded back , where being strictly and throughly examined touching the management of the whole matter complained of , he so fully , and so clearly upon every point did acquit himself , that his ma●esty was graciously pleased to grant him his inlargement , and to restore him again to his princely favour . we might in the next place alledge de ruyters leaving the english fleet , when with united councils and forces , they were to act against their common enemies , the pyrats and barharians in the midland-seas . we may alledge their instructions this last year given to van campen , at what time his majesty entertained not any open war against them ; which instructions was in down-right terms , to attach and fall upon his majesties subjects in the west-indies , and to carve out their own satisfaction and reparation . * and if this be not affront enough to provoke his majesty to maintain the justice of his cause by the force of armes , we leave to the world , and to his enemies themselves to judge , and surely that sword is to be feared ▪ which striketh with the hand of justice . finis . the loyal martyrology . or brief catalogues and characters of the ●ost of eminent persons who suffered for their conscience 〈…〉 of rebellion , either by death , imprisonment , banishment , or sequestration ; together with those who were slain in the king's service . as also , dregs of treachery : with the catalogue and characters of those regicides , &c. and are to be sold by edward thomas at the adam and eve in little brittain , . notes, typically marginal, from the original text notes for div a -e vide , doctor dee , his brittish monarchy , pa. . notes for div a -e lyren . ad ●umer . . dion . lib ▪ . chron. canon . p. . florus , lib. . cap. . aristo . polit . lib. . cap. . strabo . geograp . lib. . seneca ep. . luke . . forcus in cap. juris . cap. . seld. mar● clausum . de bello gallico . lib. . zosimus hist . lib. . bede , de natura rerum . cap. . m ● . in bibleothecâ cottonianâ . hunting . lib. . guil. malmesb . lib. . cap. . rot. pat. . hen. . . edw. . . rich. . annal. . part , page . rot. parl. rich. . part . act . seld. mare clausum page . rot. fran. hen. . rot. fran. hen. . rot. patent . edvar . rot. scotia . edvar . rot. parli . . edv. . rot. parli . . hen. . rich. . fitz herbert tit. protection , . edw. cook part . fol. . & in com. ad littleton , sect. . fol. ● . m ● . commentar de rebus admiral , fol. . rot. parl. edw. . membran . . ibidem ut supra . tilius in recucil . destraictes , fol. . rot. parl. . edvar . . membran . cambd. in insul . britan . p. . cambden annal. elizab. the hollanders insolence . their imperious fashion of treating . how farr navigation is to be free . the sea in his majesties dominions no more common nor free , then is the high-way by land. the dominion of the seas appropriated to such and such places ever since the begining of mankind . the propriety of the seas , according to the laws of god. the sea not to be without protection . the sea to be protected by those to whom it doth appertain by divine disposition . the power of the soveraign of the seas , to impose customes in his own jurisdiction . how the sea comes into the dominion of princes vide the venetians title unto the sole domin●o● of the adriatick sea. hugo grotius , sylv. lib. . vide the observations concerning the affairs of holland . the hollanders objections answered . the impudent affront of the hollanders to the late kings of england . vide observations concerning the affairs of holland . their spoyling of our trade in muscovy , and other countries of the east . vide , master woofes discourse on the tyranny of the dutch upon the english pa. . ibid pa. , and . ibidem pa. . ibidem pa. . ibidem p● . . the english abandoned the banda islands , and the reason of it . vide , the dutch tyranny , pag. . * vide , the discourse of sir george downing . act discharging boats, barks, or vessels from going to the bass, or furnishing supplys thereto. edinburgh, february . . scotland. privy council. approx. kb of xml-encoded text transcribed from -bit group-iv tiff page image. text creation partnership, ann arbor, mi ; 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(eebo-tcp ; phase , no. b ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) act discharging boats, barks, or vessels from going to the bass, or furnishing supplys thereto. edinburgh, february . . scotland. privy council. sheet ([ ] p.) printed by the heirs and successors of andrew anderson, printer to their most excellent majesties, edinburgh : anno dom. . caption title. initial letter. signed: gilb. eliot cls. sti. concilii. reproduction of the original in the national library of scotland. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the , texts created during phase of the project have been released into the public domain as of january . anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng maritime law -- scotland -- early works to . treason -- scotland -- early works to . broadsides -- scotland -- th century. - tcp assigned for keying and markup - spi global keyed and coded from proquest page images - megan marion sampled and proofread - megan marion text and markup reviewed and edited - pfs batch review (qc) and xml conversion act discharging boats , barks , or vessels from going to the bass , or furnishing supplys there to . edinburgh , february . . the lords of their majesties privy coucil , being informed , that several of the rebels who hold out the isle and rock of the bass , are at present come , or driven ashore , and that by the late storms , the boats belonging to the saids rebels are lost , which may prove an effectual mean of their reduction , do hereby strictly command and charge all persons , skippers , owners , or possessors of boats , barks , or other vessels , great or small , residing and possessing the saids boats , barks , or vessels , on either side of the firth , from stirling to st. andrews upon the one side , and from stirling to berwick one the other side of the said rock , that they carefully keep and secure the same , both night and day , from being either seized upon , stollen , or otherways taken away by the saids rebels , or any of them , or any other person for their use and service , under all highest pains ; and that neither they , nor any person whatsoever presume to hire , lend , or otherways furnish any boat , bark , or other vessel to the saids rebels , or any of them , or any other for their use and service , under the pains due to corresponders with , and supplyers of rebels and traitors . and farder , the saids lords , do hereby renew and assure the promise of twenty pound sterling , formerly made to any person who shall seize any of the saids rebels wherever they may be found , and shall deliver the person so seized to any of their majesties officers , either civil or military . and they ordain that these presents be printed and published at the mercat-cross of edinburgh , and also at all the towns on the coast of either side of the firth within the bounds foresaid , that none pretend ignorance . extracted by me gilb . eliot cls. sti. concilii . god save king vvilliam and queen mary . edinburgh , printed by the heirs and successors of andrew anderson , printer to their most excellent majesties , anno dom. . an abridgement of all sea-lavves gathered forth of all writings and monuments, which are to be found among any people or nation, upon the coasts of the great ocean and mediterranean sea. and specially ordered and disposed for the use and benefit of all benevolent sea-farers, within his majesties dominions of great brittain, ireland, and the adjacent isles thereof. by william welvvod, professor of the civill lawe. welwood, william, fl. - . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; 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(eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) an abridgement of all sea-lavves gathered forth of all writings and monuments, which are to be found among any people or nation, upon the coasts of the great ocean and mediterranean sea. and specially ordered and disposed for the use and benefit of all benevolent sea-farers, within his majesties dominions of great brittain, ireland, and the adjacent isles thereof. by william welvvod, professor of the civill lawe. welwood, william, fl. - . [ ], [i.e. ], [ ] p. printed by [thomas harper for] the assignes of ioane man and benjamin fisher, london : . an expanded and revised version of: the sea-law of scotland (stc ). actual printer's name from stc. the first leaf and the last leaf are blank. p. misnumbered . reproduction of the original in cambridge university library. some print show-through; some pages cropped and tightly bound. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the , texts created during phase of the project have been released into the public domain as of january . anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng maritime law -- early works to . - tcp assigned for keying and markup - aptara keyed and coded from proquest page images - daniel haig sampled and proofread - daniel haig text and markup reviewed and edited - pfs batch review (qc) and xml conversion an abridgement of all sea-lavves . gathered forth of all writings and monuments , which are to be found among any people or nation , upon the coasts of the great ocean and mediterranean sea. and specially ordered and disposed for the use and benefit of all benevolent sea-farers , within his majesties dominions of great brittain , ireland , and the adjacent isles thereof . by william welvvod , professor of the civill law. london , printed by the assignes of ioane man and benjamin fisher , . to the high and mighty prince , iames , king of great brittaine , france and ireland , &c. it pleased your m. some yeers past , most graciously to accept of this birth , in the great weakenesse and in fancie thereof . therefore is it , that now being strong , and by all warrants inarmed , it most thankefully returnes , offering service to your m. even for all the coasts of your highnesse dominions , upon hope to merit your former grace . your m. most humble subject , and daily orator , w. welwod . to the right honourable , ludovick , duke of lenox his grace , &c. henry , earle of north-hampton , &c. and charles , earle of notingham , &c. lords admiralls of england and ireland , of scotland and the iles , and of the cinque ports . having intended a painefull & new labour , upon a rare and necessary argument , as for al sea-farers , so also properly pertaining to your honours , my most noble lords ; i could not but of due salute your honours , as the keepers of sea-lawes , for a refreshing remembrance , and needfull consideration of that most honourable estate and high office , presently , and ( i hope ) happily allotted unto you : i meane , the admiraltie of his m. dominions ; a charge both ancient from many hundreth yeeres in this i le , and most honourable by the personages your predecessors , bearing the same : as being all , either sonnes , brothers , uncles , or cousins to princes , or ( at least ) for action most famous . with all the which , that your honours may the better ranke and match , surely , as the condition of these daies craves , so the best disposed wish , that as you be every other way noble , your nobility may be crownd with a carefull attention to the speciall parts of the admiraltie requiring the same , to a memoriall surpassing all ancesters : i meane the conservacy , jurisdiction and priviledges thereof . the jurisdiction , albeit it bee most faithfully and diligently exercised , and namely in england by sir daniel dunn , and doctor trevor , most learned , sincere , and worthy collegues , iudges in the high court there : yet the daily thwarting and curbing of the processe of the iudicature , urges a clearing or designing of the limits and marches , to a better distinguishing thereof from all other jurisdictions ordinary ; without which , due justice can neither be administred , concerning the sea customes ( of which no court else can take knowledge ) for strangers traffiquing here ( importing no small staine to the king his justice ) nor yet for his m. lieges traffiquers on sea , whose contracts and charter-parties ordinarily beare the clause of ruling by law of olero● ; a forraine law , as all the other lawes of the admirall court commonly are , whereof no other iudicature here can take cognissance . to end this point ; beside that which god in the heavens requires of the ministers of justice , please you to remember , that here below amongst men , nihil justitia popularius . consequently therefore , the priviledges due for the maintenance of the admiraltie and jurisdiction thereof , would be vindicat from all sort of encroching and usurping . but above all , the conservacie ( as the chiefe point of that office ) requires security and safety in common for all loyall subjects , traders on sea : specially , for fishers and others , happily disposed to adventure and exercise the trade of fishing , to the end , that not onely a peaceable , but also a full and plentifull fishing may bee enjoyed by the inhabitants of his m. kingdomes , even according to that which god so freely and bountifully offers into their very doors . for which cause , the barbarity of the ilanders would be repressed , and strangers stayed from scarring , scattring , and breaking the shoals of our fishes ; namely , upon our coasts of scotland . there could be no better employment for some ( at least ) of his m. shippes and companies , ne vel illi usqu● turbent , aut isti intercipiant , quod nos capere oportet . but , i breake from this purpose , remitting the same to the title of this booke ; hoping for a comfortable out-bearing and maintaining of that necessary and great dignity of the admiralty by your ll. according to all the occasions of these quarrelsome times . and so i rest , by this present token , devote to serve your honours in my calling . william welwod . the contents . the prohem , containing the origin of the sea-law . page the order of this treatise . of the iudge ordinary in sea-faring causes , with his iurisdiction and priviledge● . of the admirall clerke . of the advocates , and other officers , assistants for the speedier proceeding . of the manner of proceeding in seafaring causes . of persons ordinary in ships . of fraughting of ships . of the master of the ship his power and duty ouer the ship . of the master his duty to the merchant and passenger , and of his priviledges . of the masters duty to the mariners . of the duties and priviledges of mariners . of the clerke of a ship . of a pilot or steirsman . of money bent to sea , or upon the sea. of the outreaders or furnishers , the hyrers , and owners of ships ; and of actions for them , and against them . of sundry partners of ships , and their discords . of casting of goods , and contribution therefore . of contribution for pirats . of contribution for spoyled goods of contribution for disburdening of ships for their easier entry to the port , and other chances . ● of the common manner of contribution , and execution thereof . of priviledged ships . of shipwracke . of things found on the sea , or within the floud-marke . of things taken upon sea. of fishers , fishing , and traffiquers therewith . of the community and propriety of seas . of war-ships , and of the captaines and company thereof . of ferryers and watermen . of shipwrights . the proheme containing the origine of the sea-law : with the occasion of this treatise . concerning the argument of sea-faring governement , so farre as by any monumēts can be observed , our beginning must be at the inhabitants of the iland called rhode , situate within the mediterranean sea , in the part thereof called the carpath sea , upon the coast of asia minor , over against caria . the indwellers whereof , amongst all other people we can reade of , were most famous for shipping and sayling ; and that not onely to the great increase of their power and wealth every way , as by which they did command and daunt all other people about their coasts and seas ; in such manner , that neither pirat , nor any sort of enemy , or disturber of their peace and traffique , durst then appeare a : but also by the communicating of their trade , and discipline on sea , they did make neighbour princes , and cities , willingly tributars unto them b . and further , as strabo writeth c to the crowning of their renowne , they surpassed all other nations in knowledge of equity in marine businesse ; which they manifested by making of sea-lawes . for , the very emperors of rome , tiberius caesar , hadrian , vespasian , traian , successively , did referre all seafaring debates and controversies , to the judgement of the rhodian law . d and so likewise exemplarilie , did their successor antoninus , by his rescript yet extant e : wherein , answering to one eudemon his plaint , i am ( saith he ) the lord of the world , but the law is the master of the sea ; let that thy plaint and controversie eudemon be decided by the law of the rhodians . so farre did the romans ( who alwaies excelled all other nations , in devising of humane lawes ) yeeld and give place to the rhodians in the sea lawes . and by their example , finding sea-faring and trafique on sea , redound to a great common wealth , as plainly pronounced f vlpian , one of the fathers of their lawes ; the romane emperours , and namely claudius , g brought in new formes of actions , and devised a kinde of new and sure commodities and gaine for trafiquers ; by taking upon them the hazard of shippe and goods : to which end also is erected by english lawes , the office of assurance . it is true , that the first making of sea lawes , is otherwise by some attributed to others , as by dionysius to the phenicians , because of merchant trade h . and plinius , for that same cause ascribes the art of sayling to the carthaginians . i and consequently , would seeme to attribute to these two nations also for their necessitie , the skill of sayling . to be briefe , by the space of a thousand yeeres , the sea , at least the mediterranean , was onely ruled by the rhodian law , but helped with some few additions by the romans , and that by way of interpretation : the rather , to occurre to the deceits and sophistrie of calumniators and wilfull vexers of their neighbours , as also for other needfull doubts k . at last , when all sorts of lawes by the eversion and renting of the romane empire , was as it were for a long time buried , necessity forced the rulers of rome , anno dom. . to make new sea lawes and statutes : and so successively , every chiefe sea-faring towne upon the mediterranean coast , to adde other ordinances ; as they of marseilles did , anno dom. . and they of genua , anno dom. . and they of peloponnesus , called morea , anno dom. . and the common-wealth of venice , anno dom. . and the emperours of constantinople , paleolog . anno dom. . and constantine , . and iames king of aragon that same yeere ; and peter king of aragon , anno dom. . and they of barcelona , anno dom. . which lawes being all collected and amassed , serve the mediterraneans unto this day . but on the great ocean , which is our sea , the first lawes we knew to be made , were devised by them of the iland of oleron , situate on the sea coast of france , beside s. martin against the mouth of charante and the marraes , neere to the entry of garumna : which are therefore called la roold ' oleron ; as by which the controversies on the sea coast of france toward the ocean were ordinarily decided , in the towne of the said i le , called thereupon , lavile de droict , or oleron . as where the skilled skippers in that law did dwell , and had cognition of all such occurrent debates and questions . now these lawes of oleron , were afterward translated into dutch by them of wisby , for the sea use of the dutch coast . and of late , our kings of scotland made divers acts in parliament , concerning sea-faring l . as also the kings of england have done before m : for edward the third , by a solemne inquisition of eighteene most famous persons for skill in sea-faring , assembled at quinborow from divers parts , anno . set downe certaine articles concerning the admiralty and sea-faring , into old french : as may be seene in an old parchment authenticke booke yet extant ; which articles one thomas roucghton of that same , turned afterward in latine , and intituled de officio admiralitatis angliae . likewise fredericke the second of denmarke , in his generall convention , at coppenhaven , anno : sets downe a compend of statutes , for ruling of his sea-faring subjects ; but for most part all one with la rooled ' oleron . also the french king henry the third , added his new constitutions to these of francois , and others his predecessors , which are chiefly for the authorising of his admiralty , iurisdiction , honour and profits therof ; preferring the admirall and his officers to all other iudges and iustices , except these called royals . notwithstanding all these many , divers , and late statutes and ordinances made and set forth these sixeteene hundreth yeares , by the nations , people , and princes above written , in the decision of causes , and judging of sea-faring controversies ; that fragment of the rhodian law , extant and latinized by simon shardius , intituled by him , leges navales rhodiorum & selectae leges rhodiorum , with the interpretations and commentations , devised thereupon by the old romane iurisconsults insert in the pandects ; together with the constitutions made by the romane emperours , contained in the cod. and novells at large : as it were by common consent of nations , obtaines the prerogative throughout all europe , as in great brittaine , germany , france , italy , and spaine . such is the force and authority of the civill roman law amongst all nations christian. in which countries , albeit there hath bin , and yet remaines a great number of professors and doctors of the roman civill law , who have written largely thereupon ; yet few or none hath taken in hand to write pertinently or expresly , upon the lawes concerning sea-faring , the traffique on sea , and by sea , with the duties requisite of every sea-faring person , of all sorts and degrees . it is true that iulius ferrettus in his observant devoir to the emperour charls the fift , prepared a discourse for the addressing of navies with convenient and expert governours , and all sort of necessaries for hostility on the sea , intituled de iure & re nautica , but farre off from our present argument , as may bee seene by the same of late published , anno . and dedicated to philip , charles his sonne , by exuperantius ferrettus , sonne also to the said iulius . petrus pekkius also a fleming zelander , hath learnedly commented upon the titles of the civill law , touching the sea-lawes ; but more busied about the exposition of words then of the matter . likewise benvenutus straccha , in his large booke de mercatura , interlaceth a learned title , de nautis , navibus & navigationibus , but commeth not close to this our argument ; for he holds straightly within the compasse of the civill law , protesting also his pretermissions and remissions of many chiefe matters to certaine doctors , who also writes but obiter of the sea matters , and none speakes of the sea customes , which is our principall argument : to the end of which booke is annexed an halfe sheet of paper , bearing consilia roderici suarij de usu maris & navibus vehendis ; a turne of small contentment . 't is true that simon shardius , anno . promised this same compend and collect of sea lawes forth of all lawes ( which presently by gods grace i intend ) but by death prevented , could not performe it . to conclude then , since no man , as i can understand , hath set his pen to this my argument and purpose , for the due information of every sort of sea-faring persons in every order , whether commanders , iudges , skippers , mariners , merchants , passengers , fishers , ferryers , watermen , &c. concerning their severall duties , priviledges and powers , and all manner of things pertaining or incident to sea and sea-farers ; i thought good , after the insight and deepe consideration of all the lawes and ordinances aforesaid , to mend a weake piece of labour , which i intended many yeares since , intituled the sea law of scotland ; and to frame the same in a very harmonicall collection of all sea-lawes , and upon the conscience of my profession of the civill law , having no employment or part in any admiralty , to publish the same for the use of the admiralties , and benefit of all benevolent sea-farers ; and that presently , because of the present use thereof so requiring the same , as i now cleerly perceive : that is to say ; because that wheras the most civill , wise , and politicke nations , have even most carefully distinguished the jurisdiction of the sea from the jurisdiction of the land in all respects : yet neverthelesse some men prease alwaies , upon what intent i wot not , to confound the same . and the multitude of these who doe acknowledge the foresaid distinction , as specially the mariners , through ignorance contemne all other law but the rule of oleron . in these respects ( i say ) i have with great paine and travell , concluded the publication of this work ; which if it please ( as i pray ) god to blesse with the owne effect , i have reward enough . tit. i. the order of this treatise . as the affaires of the sea concernes onely sea-faring and medlers therewith : even so all doubts , differences , and controversies , rising upon the same , and their cases must also concerne the same persons , which are eyther chiefly owners , out-traders or hyrers , masters , pilots , mariners , clerkes , merchants , passengers . of whom the owner is hee , to whom the ship or any part pertaines in property . the out-trader or hirer , hee to whom as hirer or partner for a voyage or more , or a longer time , during the hyring and lease of the shippe , the profits and commodities thereof redounds a . and the master is hee to whom the whole care and charge of the shippe is committed b . the rest are all knowne . now their persons whiles happens all to fall forth in one man ; as one to be master , owner , and out-trader ; and againe to be all divers and distinct : and therfore the actions to beare out accordingly . likewise the cognition of their debates pertaines not to every iudge indifferently , but only to the admirall of the sea : which thing this abridgement shall orderly and summarily declare ; beginning at the iudge ordinary to sea-fare causes , the members of the court , and manner of proceeding there : next , the persons ordinary in shippes , with the fraughting thereof , as belonging to the chiefe uses of shipping : thirdly , the power , duty , and priviledge of every one of the foresaid in ships : fourthly , the manifold causes of losses and dammage in sea-faring , with the redresse thereof : fiftly , the priviledged ships , shipwracke , shippes and things taken and found on the sea , or within the floud-marke thereof : and lastly , of fishing , fishers , ferryers and watermen , and shippe-wrights . tit. ii. of the iudge ordinary , in sea-faring causes , with his jurisdiction , and priviledges . as for the iudge of the sea , wee have first to consider , how at the beginning of the roman empire , there was a speciall difference betwixt the persons to whom the charge of shipping was given , and them to whom the commandement of fleets and navies was committed ; and betwixt the persons who exercised the jurisdiction in sea-faring debates , as followeth . for amongst the romans in the beginning , first the builders , forth●eakers , or furnishers , and preparers of ships and navies with all necessaries ( by a speciall ordinance called lex decia ) were stiled duum viri navales ; a as the governours of these fleets were called archigubernij , b and the iusticiaries of sea-faring debates , magisteriani : even so amongst the grecians , the commanders of their fleets were stiled 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . and after the empire seated at constantinople , magnus dux classis , and drungarius magnus , c as the chiefe carrier of the pinsell or flagge . his stile afterward was admiratus , from amiras , a word of the sarazens , signifying an overseer , or a captaine on sea or on land ; for mirar is to see , as the spaniard useth it . from this word amiras , commeth the word amirante to the italians for the leader of their fleets , as well as l'amiraglio : albeit they tearme their sea-faring iudges , li consoli del mare , and such like from the same word admirall , which most part of the nations of europe use in the same meaning ; as first and chiefly france , where childebert the first , one thousand yeeres sithence , instituted an admirall as captaine and commander of his armie upon sea , like as he did then ordaine a marshall for the governement of his gen d'armerie on land . onely the spaniard called this leader and commander of his fleets and navies , adelantado : as who should goe before the rest . briefly , the word admirall , how ever this day it be used or abused , for to signifie the chiefe shippe , which was navis praetoria to the romans , as the chiefe commander of the fleet ; yet that word great admirall , notes properly the man whom the romans called praefectum maris , and the grecians , thalassiarcham : to wit , the governour of the sea . and thus farre concerning names and styles for the commanders and gubernators of ships , fleets , and seas . but concerning the jurisdiction of the sea , and the exercises of justice amongst sea-faring men ; at first amongst the romans , it was allowed to every president on the coasts , and afterward other iudges were specially constitute at the sea sides , called magisteriani : d but their iudges were all countable to their higher iudge , styled praefectus praetorio sublimissimus , from whom was no appellatiō or advocatiō e sithence , in these latter daies , for the readier obedience to the great admirall of the sea , it is by common consent of nations , successively agreed , that in consideration of the admirals their soveraine commandement , their speciall preferment , and power upon the lives of men within the sea floud ; that therefore they should also have a soveraine jurisdiction onely proper to themselves , over all sea-faring men within their bounds , and in all sea-faring causes and debates , civill and criminall . so that no other iudge of any degree , at least in scotland , may meddle therewith , but onely by way of assistance ; and that by commission and in difficile causes , as was found in the action intended by antoin de la tour , against one christian marteis , novem. anno . f in which jurisdiction , the first power necessary , is to constitute a vice-admirall and captaines to supply his absence on sea ; as also deputies , for particular parts on the coasts , with the crowners to view the dead bodies found on sea , or found on the coasts thereof , and commissioners or iudges generall , for exercising justice in his high court on land , with clerkes , procurers , doome-sayers , marshals , and other officers , for the exercising of their said jurisdiction both in peace and warre : and therefore to sit and hold courts where they please ; to execute justice , to imprison and relaxe ; and to command the kings prisons and borroughs their prisons , to receive and keepe their warders and prisoners . g finally , their authority should be distinctly acknowledged in all things pertaining to sea-faring . it is true , that in scotland before the erection of our admirall after the example of other nations , the deanes of gild were ordinarily iudges in civill debates , betwixt mariner and merchant , as the water-baily betwixt mariner and mariner , like as the high iustice was iudge in their criminals . which actions all now falling forth betwixt the persons aforesaid , of due appertaines to the jurisdiction of the admirall ; and therefore his iudge depute or commissar , called iudge admirall , and none other , should sit , cognost , determine and minister iustice in the foresaid causes : as likewise upon all complaints , contracts , offences , pleas , exchanges , assecurations , debts , counts , charter-parteis , covenants , and all other writings concerning lading and unlading of shippes , fraughts , hyres , money lent upon casualties and hazard at sea , and all other businesses whatsoever amongst sea-farers , done on sea , this side sea , or beyond sea ; not forgetting the cognition of writs and appeales from other iudges , and the causes and actions of represals or letters of marque : yea , to take stipulations , cognossians , and insinuations , in the bookes of the admiraltie : and to doe all other things without which the jurisdiction of the admiraltie cannot stand nor beare out ; and therefore to arrest and put in execution , to inquire within and without liberties , by the oathes of xij . men upon all offences . h as first , touching the revealers of the king & countrey their secrets over sea , in time of warre . item , against pyrats , their assisters or abbetters , out-treaders and receptors . item , against fortifiers of the kings enemies , and ha●●ers of his friends . item , against the breakers of the admirals arrestments and attachments . item , against goods forbidden , and merchandise not customed , and yet shipped and transported . item , against the resisters of the admirall his officers , in executing his precepts . item , against the forestallers , regraters , and dearthers of corne , fish , drinke , fire-wood , victuals carried over sea . item , against pleaders before other iudges than before the iudge admirall , in causes pertaining to his iurisdiction ; as also against the iudges cognoscing therupon item , against them which give sea-brieves , testimonials , or such like , over sea , without power or licence from the admirall . item , against transporters and carriers of traitors , rebels , manifest transgressors , and fugitives from iustice , over sea . item , against hirers and fraughters of ships of other nations , when they may be served by their own nation : item , against such as cast in ballasting , sand , or what else , in harbours , or channels , that may defile or spoyle the same . item , against shippe and boat-wrights , extortioning the lieges or subjects . item , against taking away the boigh from the anchor , or cutters of cables , or other tewes . item , against false weights and measures by sea . item , against shedders of other mens bloud on sea , or any port or river below the first bridge next the sea : or them who are lamed or hurt through faulty and ill geare in ship . item , against customers or water-bailies , taking more custome or anchorage than wont . item , against such as absent themselves from wappinshewing or mustering ; which the admirall may ordaine twise a yeere in time of warre , and once in two yeares in time of peace , upon all dwellers at ports and harbors , or within one mile neere thereunto . i item , all sorts of transgressions committed by sea-men , ferry-men , water-men , as well in floud rivers and creekes from the first bridge , as on the seas ; fishers , pilots ; shipwrights , pressed men contemning the authority of the admirall : and after due cognition , to levie and apply to his owne use the penalties and amerciaments of all transgressors aforesaid , as due unto the admirall ; together with the goods of pirats , felons , capitall faulters , their receivers , assisters , attainted , convict , condemned , outlawed or horned . item , wayffe or stray goods , wreck of sea , cast goods . item , deo dando , that is to say , the thing , whether boat or ship , &c. that caused the death of a man , or whereout-of a man did perish . item , shares , lawfull prizes or goods of the enemy . siclike lagon , that which was found lyand at the sea ground , and flotson that is found swimming upon sea ; and ietson , which is cast forth of the sea to the shoare and coast , with anchorages , beaconages , meare swine , sturgeons & whales , &c. and all fish of extraordinary greatnesse , called regall fishes ; which all are allowed in great brittaine , france , and other noble kingdomes , to the admirals , by their soveraigne ; for the better maintenance of their estate , iurisdiction , and conservancie on seas , rivers , flouds , roads , ports , harbours , channels , sayling , fishing , and all trading there , as altogether and chiefly committed to the care , maintenance , and protection of the great admirall . tit. iii. of the admirall clerke . the clerke of the admirall court , beside that he should be very skilfull , faithfull , and give his solemne oath thereupon at his admission ; and beside the poynts of his office requisite and common to all clerkes of other courts , hee should have divers registers , as for congees , saueconducts , pasports , sea-briefes ; as without which no shippe should passe to the sea in time of warre , not yet to farre voyages in time of peace : a which no other iudges nor governours should give forth , but the admirall onely . b item , one other register for the reports of the skippers and captains , at their return to the admirall also . c item , one other register for the names of merchants , and passengers , and owners ; for the skipper is holden to give-up the said persons by name . d and because no man ought to take upon him to be a master or pilot without due tryall of his skill : even so ought his triall to be registred in the admirall his bookes . e but within the water of thames , this tryall and registration of pilots , pertaines to the trinitie-house . f lastly , all money lent to hazard upon the sea , called of old pecunia trajectitia , for certaine profit , called foenus nauticum , for the which the lender was wont to beare the perill , against the manners of these avaricious daies ; their lendings ( i say ) and billes of assurance , should be done before the admirall clerke . g to conclude , no other clerke or writer , may meddle or pen things concerning the sea-faring , without licence of the admirall . h tit. iv. of the advocates and other officers assistants for the better and speedier proceeding in the admirall court. for the more upright proceeding , and easier dispatch of causes and plaints in the admirall court , it is found needful that all procurers , before they be heard , sweare solemnly first , that they should doe nothing maliciously ; but as soone as they finde ▪ their action to be unrighteous in any part of the processe , they shall tell it to their client : and if the client will insist , then to shew it to the iudge . secondly , that they shall not reveale their clients secret to the adversary , nor yet collude with him to betray their client . and lastly , that they shall propone neither dilator nor peremptor against their conscience . a to conclude , the oath of fidelity is likewise to bee solemnly taken of the rest of the officers of court : for the due execution of their offices , namely , at their admissions . b tit. v. the manner of proceeding in sea-faring causes . the debates of sea-farers , and sea-faring actions , should be decided according to the received lawes and statutes of the sea : which fayling , then the customes and consuetudes of these are to be followed . a because all dispositions and ordinances commonly take their interpretation from consuetudes and uses . b and if neither law written , or unwritten custome , nor consuetude occurres or appeares , the last refuge is to the opinions and sentences of skilled and upright men in the profession and exercise of sea-faring ; because it is old and common , that the judgement of skilled and well practised men , should be followed in their owne trade and calling . c but in the manner of proceeding , it is a perpetuall priviledge , quod velo le vato . d that is to say briefely and summarily , causes should be cognosced , and without the solemnitie of other ordinary courts & judgements , onely looking to god and the truth ; so that the iudge should doe , if it were possible , as god himselfe . e plaints then of sea-farers should be most summarily cognosced , but specially of shipwracke ; for it were a cruelty to vexe so miserable persons with the tedious ordinary proceedings of courts , in so much as they need not to put their petition in writing . f and because that sayling tends to a great common-wealth , therefore least sea-farers should bee wearied with pleas , and so either lose their right , or their trade , g summary processe should be common to them all . which sort of processe is so urged by the doctors of law , that they counsell iudges , who feare appellations or advocations , to prevent the same by a present execution ; h namely , in causes of spoyle or wrack : so that upon every interloquutor , they may proceed to execution , making restitution presently . providing alwaies , that caution bee first found by the spoyled , to satisfie the sentence of the iudge of the appellation , in case it shall happen to be made . i this is also a priviledge of the sea-faring iudicature , that albeit by the common rules of the law , where no litiscontestation is past , no witnesse should bee received , nisi ad aeternam rei memoriam , ac adversario ad id citato ; yet in shipwracke , as a case very pittifull , any of the shippe-broken men may come to the iudge of that part where the wrack happens , and by witnes brought with him , prove the wracke and spoile ; k to the end that if any owner should pursue his goods , for to recover them , hee might be justly repelled by an exception of an innocent losse : l which should be done within a yeer and a day ; namely , by such as were in service to the prince and country . m the like is to be observed also in causes of spoyle ; where by the lawes of england , it is sufficient for the spoyler to prove his goods by his marke , &c. mm in which doing , no citation is required ; and that against the common law : n yea , the death of the ship-broken may not onely bee proved by the rest living , but also by the persons , who were present at the preparation of their voyage , even their owne parents and children , if none of the ship-broken be on live . o and as this is a priviledge extraordinary for such chances ; even so ordinarily may merchants and mariners sayling together , beare witnesse each one to other of their society within ship , if they have neyther to lose nor gaine thereby ; and namely mariners , for or against the skipper when the voyage is ended , and when they are free from his commandement . p for by the consent of the doctors , when the truth cannot be otherwise tryed , then unable persons may be heard . item , to the end that this trade bee not hindred by calumniators , and wilfull vexers of their neighbours under colour of law : it is provided , that not onely the common caution , iudicio sisti , & iudicatum solvi , bee kept on the part of the defender ; but also that the pursuer shall finde caution , de expensis solvendis , if hee faile in proofe . q likewise , in case the party pursued be contumax , and will not compeire to defend himselfe , or his shippe , or things challenged ; namely , after three or foure citations directed from the high court of the admiraltie , called quatuor defaltae ( for that citation called vnum pro omnibu● , is not sufficient to convince one of contumacy ) specially in the claime or vindication of a shippe , any part thereof , or any other such like thing or goods ; then may the iudge ordaine his marshall or officer , by his sentence called primum decretum , to put the plaintiffe in possession thereof , at least to the worth of the suit : providing notwithstanding , that if the party compeir within a yeare and a day after , offering the expence made to the pursuer , and caution to obey the definitive , he shall yet be heard upon the propriety . otherwise , that time being fully expired , the iudge may proceed and adjudge the propriety of the ship to the plaintiffe . r neither is it needfull to execute summons or citations in such cases , elsewhere but where the ship or quarrelled goods in question lies , or at the part usuall of their haunting . s further , as this way it is provided for the snibbing and staying of calumniators in iudgement : even so it is ordained against maliciousnesse out of iudgement of such persons who onely to hinder and stay their neighbours , vexes them with needlesse arrestments ; that upon caution such a●restments be speedily losed , except it be either for fraught already deserved , or mariners wages , or such cases wherein by law the shippe is obliged ; or else for service to the prince : t as also if arrestment be used , eyther upon goods , or mariner ready to saile , the same may bee loosed , upon caution to make forth-comming so much goods as the mariner hath within ship-boord . u tit. vi. of persons ordinary in ships . touching persons ordinary for sayling in ships , they are of divers orders , and therefore diversly stiled : as first , hee who beares charge over all the shippe and kippage , is commonly called by us , and most part of nations , both now and of old , and specially by the romane lawes , navicularius , or magister navis : a that is , as wee speake , master of the ship ; by the dutches , skipper ; & by the grecians , nauarchus or nauclerus ; b by the italians , patrono . but if the ship be a warfaring ship , the principal person is commonly called captaine by us and other neere nations . the next to the master , is hee who directs the ship in the course of her voyage , called by the french-men , pilot ; by vs and the dutche , steirsman ; by the romans , gubernator ; c by the italians , nochiero , d pilotto , & nauarchus , as gerretus writes . the third person is commonly called the masters mate or companion , chiefly if the master be steirsman himselfe : this man is called by the grecians and romans proreta : e his charge is to command all before the mast . the fourth person is hee who attends upon the mending of the faulty parts in the ship , called by us and the dutches , timberman or shipwright ; by the old grecians and romans , naupegus or naupagus : f but by the late grecians , calaphates : for which cause the emperor michael was called calaphates , because his father had beene a shipwright in paphlagonia ; as witnesseth egnatius and volateranus , * and therefore the venetians and italians name their timberman calafatte . g the next person in order , is hee who beares the charge of the shippes boat , called by us boatsman ; by the italians , barchierie ; by the grecians and romanes , carabita : for carabus notes the boat of the ship . h the sixt person requisi●e in any shippe of great burthen , is a clerke ; by the italians , scrivano , i whose office is to write up and make accompt of all things received or delivered in the ship , together with all the ordinary and needfull expenses made upon ship & kippage : who for his more faithfull discharge , should at his entry be sworne before the ordinary sea-iudge ; as is ordinarily practised in ancona , and other parts of italy . k the seventh is the cook , a most necessary member as long as there will be bellies . the eighth is the ships boy , who keepes her continually in harbours ; called therefore by the grecians , nauphylakes ; by the romans , dietarius ; l and by the italians , guardiano . m all the foresaids are distinct in offices and names , and therefore accordingly should also be distinguished in hyres and fees , after the custome of the country . the rest of the persons of the kippage , are under the common stile of mariners , which the romans call nautas : but they name those of the lowest and base degree , as may bee the boyes and prentises in ship , mesonautae , n and nautebatae , as who should bee ready at command , to climbe upon the tewes , or to such common service in the ship . o tit. vii . the fraughting of ships . no shippe should be fraughted without a charter-partie written and subscribed , a containing both the master and merchant , and the name of the ship , that no doubt may arise ; b and likewise , that the master shall finde a sufficient steirsman , timberman , shipman , and mariners convenient , shippe-tycht , masts , sayles , tewes , strong anchors , and boat fit for the ship , with fire , water , and salt , on his own expences . c and this charter partie , among all the westerne merchants , and those of the great ocean , usually is made to per●orme all things requisite by the lawes of oleron . d and if there be no writing , but an earnest , then the merchant , if hee repent or rew , loseth his earnest : but the skipper , if he repent , loseth the double of the earnest or arles e if the ship be not ready at the day appointed in the charter-party to goe to sea , the merchant may not onely free himselfe of her , * except he hold his peace and discharge her not ( for then by his silence he appeares to consent of new ) but also shal or may obtaine all charges , scathes and interest : f except the master shew some excuse of a notorious necessitie , or of a chance that could not bee eschewed : and then hee loseth onely his fraught , because hee hath not deserved it . g but if the fault be in the merchant , h he shall pay the skipper and shippes dammage , or according to the rhodian law , shall entertain the kippage and company tenne dayes ; and if then he stay longer , shall pay the fraught of all accordingly : i and further , shall upset all hurt and damage hapning by fire , water , or otherwise , after the time appointed . k it is true , that the rhodians charge the merchant in this case onely with halfe fraught , & the skipper with the whole fraught if he faile : albeit that the romans inflict the pain of the whole fraught upon the merchant : m specially , if hee take forth his goods againe ; for then is the fraught thought to be deserved . n but if the ship in her voyage become unable without the masters fault , or that the master or ship bee arrested by some magistra●e in her way , the master may either mend his shippe , or fraught another : but in case the merchant agree not therunto , then the master shall at least obtaine his fraught , so farre as he hath deserved it . o for otherwise , except the merchant consent , or necessitie constrain the skipper , to put the goods in another ship worse than his owne , the master is holden for all losses and damage , except that both the ships perish that voyage , and that no fault nor fraud be found with the master . p also it is recounted for a fault , if the master put forth the ship to sea , either without a skilful pilot , or without sufficient furniture & necessaries , according to the clause ordinary ●f charter parties , or that the other ship in which the goods were last put in , be not sufficient , or that the master hazard forth to sea in an unlikely time . q yea , in former times it was forbidden expresly , as by the emperours gratian , theodosius , and valentinian , to hazard upon sea from november till aprill r as also by the kings of scotland , from s. iudes day till candlemas s and alwaies it is accounted by the lawes for a fault , to make forth of a port in time of a manifest storme . t item , if a skipper set forth his ship for a certain charge , and then takes in any more , he ought to lose his fraught justly . u and in such a case , when goods bee cast through storme , it shall not be made good by any contribution , but by the skipper his owne purse . x and if hee over-burden the ship above the birth marke , he shall pay a fine . y item , if a ship port at any other port then she was fraughted to , against the masters will , as by storm , or some force ; then the goods shall be transpor●ed to the port conditioned , on the skippers charges : but this thing also must be tried by 〈◊〉 oath of the skipper and two of his mariners : z or else the skipper may bee in further danger . where also it is to be observed , that for the in-going to sundry divers ports by the way , imports not a diversitie or a multiplication of voyages * but if any man compell the skipper to overburden ship or boat , he may be therfore accused criminally , and pay the damage happening thereby . a item , if any skipper set his ship to an unfree man , and not of substance , and other qualities prescribed by king iames the third , b hee and his mariners shall under-lie the paines contained therein . item , if a merchant put in more goods in ship than was conditioned , then may the skipper take what fraught he please . c it is imputed for a fault to the master , if he direct his course by waies either dangerous through pirats , enemies , or other evill aventures , and holds not forth his due rout , d and dammage happen thereby . it is likewise counted a fault , if the master carry the pensell or flagge of other nations than his owne , and thereby incurres scath and losse of any thing . e for , as packquets , pipes , hogsheads , and such like , should be marked by the proper marks of the merchants to whom they appertaine : f even so should ships be discerned one from another , by their owne pensell or flagge item , if coffers , pipes , pakquets , &c. be delivered close and sealed , and afterward shall be received open and loose , the master is to be charged therefore , untill a due tryall and consideration of that matter . g the master also must be answerable , for that harme which the rats for want of a cat doe in the ship to any merchandise . h tit. viii . of the master of the ship , his power , and duty thereunto belonging . the master of the ship is hee to whom the whole power and charge of the ship is committed : a which power is prescribed , partly by the owner or outreader , and partly by the common law of the sea : as , to set her forth for fraught ; to take in passengers ; to mend and furnish the ship . b and to that effect , if need be , in a strange countrey to borrow money with advise of the kippage or , company , c upon some of the tackle , or to sell some of the merchants goods ; provided , that the highest price that the rest of the goods is sold for at the market , be repayed to the merchant : which being done , the fraught of that goods so sold and repayed , shall be repayed by the master to the owner of the ship , as well as the fraught of the rest of the merchants goods , except the ship perish in the voyage ; in which case onely the price that the sold goods were bought for , shall be rendered : d and for no other cause , no not in the chance of shipwracke , may the master take on or conquest money , specially , by-selling of merchants goods . e and thus far cōcerning his power as for the masters duty , he ought first before he loose or make saile , to seeke and obtaine the consent of the most part of the kippage or company ; yea , if hee be not very skilfull , he should doe no other thing of importance without their advise : otherwise , hee shall undergoe what-ever dammage happens by his doings ; f and specially if he loose forth of any harbour without an expert pilot , g yea , or in the harbour the ship happen to fallover . h and as the skipper his rashnesse and unskilfulnesse is thus-wise corrected : even so his negligence and sloth is to be punished . as first , by suffering the overlap and cowbridge to be unticht , i or the pumpe to be faultie , or a sufficient decking to be lacking ; k and specially , from corn , victuall , and such like goods , which should be most carefully kept , and fenced from water and spoyling . l otherwise , the negligent skipper is holden to make good all scath or dammage comming thereby , beside that the fraught of such spoiled goods is lost ; except that m the ship or crear was open from the beginning , and fraughted without any overlap : n which two kindes of ships , are tearmed by the iurisconsult , emphractae & rephractae , nn further , this duty is required of the master , that according to the act made by king iames the third of scotland , he give up the names of all persons transported in his ship , before he make saile : n as likewise at his return , the just inventarie of the goods of any persons which shall happen to depart this life in that voyage ; o to the end , that not onely the lieges at home , nearest to the dead , may succeed to their right : but also concerning strangers so deceased , and their goods , that the same may be put in sure keeping , forth-comming for three yeeres space ; but by the custome of england , one yeare , untill the nearest of the dead-mans kinne come and claime the same . p of which goods in the meane time , the bedding with the pertinents thereof , may be of due taken by the master and his mate , to their uses ; as also such cloathing , and other thing then presently upon that persons body , may be delivered to the boatsman and servants of the ship , as who ought therefore to burie , or cure at least , the over-putting of the dead in the sea. q tit. ix . of the masters duty to the merchant and passenger ; and of his priviledges . the master ought to render againe whatever he receives within his ship , to him who delivered the same , as well victuall as clothing and merchandise , goods , or other thing : a where we take goods to be delivered , if either it be put in the ship , or in presence of the master or clerk as his deputie , layd to the ships side , b and both wayes , the perill to appertain to the master . c which thing also is extended to boatsmen , and to the ferryers : d and yet is it surest to deliver goods before witnesse , and that either to the master , clerke , or skipper his deputies thereto : e for the master is not holden for such things as are put in ship without his , and his companies knowledge ; f because where men are found ignorant , they are also esteemed not to consent . but if the merchant or passenger keepe his goods by himselfe , as money or such thing in his coffers , and then alledge the lacke therof , then is the skipper and his kippage onely to purge themselves by their oath : f but if afterward notwithstanding they be found guilty , the denyer shall pay the double , and also be punished for perjurie . g even so , the master is lyable for all damage sustained through evill hooks , cordels , blocks or lines ; namely , if the mariner foreshew the said things to be faulty : and alwaies the mariners shall help the skipper in common to pay the said damage . h item , if any scath or damage happen to the merchant or passengers goods , through unreasonable stowing or breaking up , the master shall not onely refound or make good the same , but also lose his fraught , and twenty pound in scotland to the king , i or his admirall as his successor now ; and for lacke of proofe in this case , the skipper and his kippage shal be put to their oath . k further , what ever shal hapē through fault , negligence or chance eschewable , or by the deed of passengers and others than himselfe or his kippage , the skipper is holden to answer and pay for all , to the uttermost penny : l for if such dammage happen by a mariner , the skipper shall refound the double , m but hee may repett it from the mariner . n but it is not so if the damage bee done by a mariner to another , except he be a merchant also , or by a merchant or passenger to one another , then shall not the double be sought of the master . o neither yet is the master holden for anything without the ship , or yet within the same , if he duely forewarn each man to keepe his owne goods , and they agree thereunto . p such is the force of due protestation , according to the opinions of the most famous doctors ; q which cōditions aforesaid , are most justly layd upon the master , because he ought to hire good men , and no evill person in his company : r for it is in his owne free will to chuse his company , and he should not be ignorant of the men he hath to doe with ; s otherwise , if the master were not so obliged to all such duties and diligence for the merchant & passenger , there should be great occasion of stealth & spoile . t lastly , if through the masters fault , confiscation , or other damage happe●s , as for non-payment of the custom , or false bils of the goods customable , or for transporting of unlawfull goods , the master shall refound the same with the interest . u but concerning the pursuits of these aforesaids , as the merchant may wel pursue for the spoyled goods onely : x even so may the master pursue the stollen goods ; as he who must onely , at least , chiefly , answer therefore . y and yet for all this , in case for want of these things , which the merchant at the fraughting promised to be done at the entry to the voyage , any of the aforesaid losses happens , and therewith the master and foure mariners sweare no fault to have been in them , the master shall goe free . z and yet must we not overpasse this observation , that if the master offer the just custom , anchorage , or whatever other duty pertaines to any customers , and he , because of their unrighteous refusall , makes saile , the weather and his necessity so requiring , then may he be justly defended afterward against that customer . a neither yet should a ship that hath once paid her anchorages , pay againe , if she be forc't through tempest backe to the same port. b tit. x. the masters duty to the mariner . seeing the master is the ordinary ruler over his owne kippage or company , he ought to keepe them in peace so long as they eate his bread . a and if any mariner hap to be hurt in doing service , or by his companion , the master shall cause him to be healed , as he who is onely answerable for the fact of all within ship-boord ; b and then by his authority , repeit or recover from the other mariner , the charges , with all that is lost to the hurt man therby : c except that he who is hurt or lamed , have provoked the other by evident invasion , assault , or stroaks . d and if a mariner become sick , the skipper shall cause him to be layd in a house , with all sustentation necessary and usuall in the ship , but shall not stay the ship untill he be healed ; and when he recovers health , shall give him his hire : or if he dye , shall give it to the wife or nearest friends . e but if a mariner be not hurt in the ships service , the skipper shall hire another in his place ; who if he draw more hyre , then that mariner shall refound the superplus . f and alwaies the master ought to lēd his mariners if they lack g item , if through the masters fault , the ships boat perish with any mariners in it , as through spoyld tews , &c. then shal the master pay one whole yeeres hyre to the heires of the drowned : h item , he ought to give his mariners , flesh upon sonday , tuesday , and thursday ; and upon other dayes , fish , or such like , with sufficient drinke : but no meate to them that sleepe not in the ship . i and yet the quality and quantity of mariners food and hyres , goeth diversly , according to the divers customes of countries , and the conditions made at the entry to their voyage . tit. xi . of the duties and priviledges of mariners . mariners owe all due obedience to the master , not onely in flying from him in his wrath so farre as they can , but also in suffering ; yet may they after one stroake defend themselves . in case of rebellion of mariners against their master , which is thought then to be done , when the master hath thrise lifted the towell from before any mariner , and yet he submits not himselfe , then may he not onely be commanded forth of the ship at the first land , but also if he make open strife and debate against the master , hee shall lose his halfe hire , with all the goods he hath within ship-boord . a but if in this strife a mariner useth any armour or weapons , then should the rest of the mariners binde him , prison him , and present him to justice ; so that if any of them refuse to lay to his hand , and to assist , he shall lose his hire , with all that he hath within shippe-boord . b yea in case any number of the mariners would conspire to force the skipper to passe to any other port , than to the which he was fraughted , then may they be accused criminally , and punished , as for a capitall crime . c and yet , if a rebellious mariner repent in time , and offer amends for a simple rebellion , and the skipper notwithstanding refuse ; he may follow the ship , and obtain his hire . d mariners ought each one to helpe and assist others on the sea : or else he that refuseth , loseth his hire ; and the oath of his fellowes shall be a proofe against him . e mariners in a strange port , should not leave the ship without the masters licence , or fastning her with foure ●ewes ; or else the losse lights upon them . they should also await upon the ship untill she be discharged , and ballasted new , f and the tackle taken downe . and if a mariner , in time of loosing and lading , labour not with the rest of the company , but goes idle and absents himselfe , he shall pay a fine to the rest , prorata , at the masters discretion . g at least , the halfe of the kippage or company , ought in strange country port or roade to stay aboord : and the rest who goe a-land , albeit with licence , should keepe sobriety , and abstaine from suspected places , or else should be punished in body and purse , like as bee who absents himselfe when the ship is ready to saile . h yea , if he give out himselfe for worthier than he is in his calling , he shall lose his hire , halfe to the admirall , and the other half to the master : i but this especially ought to be executed against an unworthy pilot. k the mariner also forfets his hire if the ship breake in any part , & he help not with al his diligence to save the goods . l if it chance any otherwise than well to the master , the mariners are then holden to bring backe the ship to the port from whence she was fraughted , without delay , m except it be otherwise provided . a mariner may carry as much meat forth of the ship as he may eate at a meale , but no drink . n a mariner may either keep his portage in his own hand , or put forth the same for fraught : and yet should not the ship stay upon the preparation for his portage . o so that in case the ship be fully laden before the goods for his portage be brought in , he shall have the just fraught of so much goods . p if a ship passe further than the mariner was hired , his hire should be accordingly augmented ; except he be hired , as the french man speakes , a mareages , mais non à deniers . q if a mariner runne away with his hire undeserved , he deserves the gallowes . r if a mariner be hired for a simple mariner , and afterward in the voyage findes hiring tobe a pilot or a master , he may passe with provision to render his former hire : evē so is it if he mary . s mariners are not onely holden to loose and deliver goods over-boord ; but also if no porters nor caryers be in those parts , to carry the same themselves , for such hire as other workmen should have had therfore . t if it happen a ship to be prized for debt or otherwise to be forfeited , yet should the mariners hire be paid ; and if she prosper , to receive their pay in the same money that the fraught is paid with . u lastly , a mariner should neither be arrested nor taken forth of a ship making to saile , for any debt ( but onely his hire , and as much other goods as he hath in the ship arrested therefore , according to the quantitie of the debt , and the master to be answerable for all : x because the ship is compared to a mans dwelling house ; y and by the civill law , a mans dwelling house is his most sure refuge ) z except for a sworne debt , or a penalty to the king through some crime . tit. xii . of the clerke of the ship . in ships of great bulk and burden , a clerke is most needfull : who being put in by men of chiefe power , and sworne solemnly before some iudge , as the use is in italie ( or at least before owners and mariners ) that he shall write nothing but the truth , nor leave ought unwritten ; being , i say , so constitute , neither merchant nor mariner may put in or take out any thing of the ship without his knowledge . so that whatsoever goods or other thing shall happen through storme or otherwise , to be cast , stollen , or spoyled , that hath not beene presented or shewne to the clerke , it shall no way be up●set by contribution , or any search made therefore . and if it come safe to land , the skipper may take what fraught he likes therefore . also the clerke may take of that which is delivered to him , and sell thereof for the ships need , but must satisfie the owner thereof : for he must be alwaies countable of his receits : a but howsoever he doe , he may neither take in , nor give forth goods by night , but in day light . b vide statuta ang. tit. xiii . of a pilot or steirsman . if a master hire a steirsman not only for to guide his ship in through shalds or other dangers at a time onely , but also for a whole voyage , and to be ready therefore against a certaine day , and he faile to keepe that day , he shall not onely pay master and merchants damage or stay , but also the fraught that is lost thereby : except sicknes , or some very lawfull excuse qualifie it . a a steirsman , after the time he hath brought the shippe in sure harbour , is no further bound or liable ; for then should the master see to her bed and her lying , and beare all the rest of the burden , charge , and danger : so that if before she come into the port or some safety , eyther she or goods perish or be spo led , the pilot makes good the same : yea , if his faul● or ignorance be so grosse , that the company sees any manifest and present wracke to all thereby , then may they leade him to the hatches and strike off his head . b yea , if without any seeing danger , certaine of the skilfull'st mariners deeme that he is not so skilfull as he set himselfe forth to be , then shall he both lose his hire , and double the same to the admirall and master , or else passe thrise under the ships keil . c tit. xiv . of money lent to sea , called nauticum foenus . great is the difference , or at least should be betwixt money lent amongst men , to use on land , and that money which is lent to sea ; for this money is called pecunia traiectitia , because that upon the hazard of the lender it is carried over sea. so that if the shippe perish , or that all b● spoiled , the money loses to the lender . a but on the contrary , money on land is delivered on the perill of the borrower : so that the profit of this , is the price of the onely simple loane ; therefore generally called usura : but the profit of the other loane is called usura maritima , or soenus nauticum , which is not the price of the loane , but of the hazard and danger which the lender takes upon him during the loane : b which is understood to be to a certaine day or voyage , or what-ever of time agreed upon . and therefore if the money miscarry , eyther before the voyage begun , or after the tearme appointed for the f●ll loane ; then the perill pertaines to the borrower thereof , and not to the lender : c i meane of perils proceeding from stormes , violence , spoyle or such like occasions , which cannot be eschued by any diligence of the borrower ; and therefore in case the borrower imploy the lent money upon lawfull goods , or that by his defrauding of the due customes , the same be confilcat , the lender is freed of such hazards . d it is also to be noted , that mony lent upon the sea , without hazard , and yet with security , should pay no profit , suppose it were unbooked in the clerks book with the profit ; contrary to that which is lent on land : e so that albeit money be lent within the ship during the voyage , to the need of the company ; and if before the day appointed for the rendring , shipwracke or spoyle happen , then should the losse come in contribution betweene them ; f because if that money had been lying by the lender , still unlent , it had bin in common danger of shipwrack of spoil with the rest . but if the time appointed were past with the hazards aforesaid , then shall the borrower repay the borrowed money , free from all contribution . g further , in case the borrower deteines any such lent mony as is aforesaid , beyond the terme appointed for the repaying , he shall at his returne not onely pay the profit agreed upon before the voyage , but also augment the same according to the greater time , and yet shal not pay the profit of that first condition , but onely after the common rate . h tit. xv. of the outreaders , or outriggers , furnishers , hyrers , and of the owners of ships , and of actions for and against them . it is not onely permitted to him who contracts with the master of a ship , or that hath any other action or claime against him as master of the ship , to pursue him ; but also the outreader , setter , or exercitor thereof , as him who placed the master ; and therefore ought to make good the masters deed and fact . a this outreader we take to be him to whom the commodity of the ship b redounds ; so that he may lay his action upon any of them ; ne in plures adversarios distrahatur qui cum uno tantum contraxit . c but the rest of the owners or outreaders shal relieve this man prorata ▪ of their portiōs ; except the handling of the ship be so severally divided amongst them : or that the master have not his power and commission of them all : d or that the master have obliged himselfe beyond his commission ; as if he have taken on money to mend the ship , when as she needs it not : or that he have no commission at all ; in which case the lender hath to blame his owne folly : for by the common rule of law , men should know well the persons and their conditions , with whom they have to bargaine . e and yet in case evident need be of mending , and money be lent thereto ; suppose the master should spend it otherwise , yet ought the outreader to satisfie the creditor . f but above all , that money which is lent for victuals to the ships company , should be repayed , as preferd before all other sort of debts . ff but a merchant contracting with a mariner that is not a master , shall have no action against the outreader , except for a fault done by the mariner , specially , if he hath beene hyred and put in by the outreader . againe , albeit by the common law of the sea the outreaders may not pursue persons obliged to the skipper , yet are they permitted to pursue upon the masters contract , as they had bin contracters principall ; g because in such dealings he sustaines the out●●aders person : and because of the great common-wealth that is procured by this kinde of traffique , h worthily such priviledges to the outreaders and exercers of shipping are granted . and yet is not the master alwaies bound to satisfie all counts to the outreaders : specially , in case it happen some passengers to be non solvendo , the master is nor holden to pay for them , because it becomes not the master , in the acceptation of passengers , to search out so narrowly their meanes and ability . i and againe , the outreader is not holden alwayes to answer for the masters sloath , but for his owne selfe . k tit. xvi . of sundry partners of ships , and their discords . moreover , concerning the owners of the ship , in case they cannot agree amongst themselves to remaine in partnership ; seeing by the law they cannot be constrained thereunto : a yea , not albeit a paction had bin made never to sunder ; b then is there many considerations required in their sundring . and first , if their common ship or cray be put in building ; or that she be but presently bought : in these cases it is thought convenient , that she shall be imployed one voyage first , upon the common outread and hazard , before any of these partners be heard to sunder & discharge their part . and after that , if they cannot agree , he who desires to be free , should offer to the rest , and set his part on such a price , as hee will eyther hold or sell , which if he will not doe , and yet refuses to outread with the rest , then may the rest rigge forth the ship at their owne charges , and also upon the hazard of the wilfull refuser , so farre as his part extends , without any count to him of any deale or part of profit at her returne : c but they must bee bound to him to bring her home safe , or the value of his part . and justly ; because that , as shippes were inven●ed in common , for the use of all men ; even of them that dwell in the mountaines , as on the coasts of the sea : d so were they ordained and builded for sayling , and not to lye idle and unoccupied . e but if the persons , who have most part of the ship , refuse to abide in partnership with him who hath a small part , that neither hee can sell his part at that price , without great losse , nor yet is able for povertie to attaine to their parts , then are they all bound to put the ship to an appraisement . f otherwise , the scoffe which casselius , a romane lawyer , used against two wilful partners of a ship , may also be used against such : that is to say , while they asked him by what way they might divide and part their ship , casselius answerd ; if ye divide her , then neither of you shall have her . g and if for lacke and want of buyers in that place , the poore partner can neither eschew the oppression of the richer , nor yet the rich satisfie the poor man , perchance also wilfull ; then may the iudge ordinary deale and decree in this case , as he may in omnibus alijs bonae fidei actionibus : that is to say , consider all the circumstances of the persons , their motions , the matter of their debate , with all the merits thereof , and make up a full consideration of all together , that every man may obtain and receive his own due right . h tit. xvii . of casting of goods in a voyage , and the like ; and of contribution to be made therefore . concerning contribution or scott and lot , as we speake , it is ordinary : and first , it is practised upon shippes so stormestead that for reliefe of lives and goods , casting of goods must be made : in that case the master shall consult with the mariners : who if they consent not , & yet the storm and danger continue , then may the master cast some goods notwithstanding : a but if the merchāt be present , let him begin to cast , b next the mariners : but if the mariner keep back any part that should be cast , to his own use , he shal render the double . c but when afterward the master shall come to land , he must with the most part of his company sweare that he did cast goods for no other cause but for the safety of shippe , goods , and lives d secondly , when goods are cast , they shall be upset and compensed by a contribution of ship and such goods as are safe thereby : e and not onely of goods paying fraught and burdensome , but of cloathing , money , jewels , and such like , f which are not weighty . for , it is most righteous , that the losse be common to all things which are safe thereby . g except things borne upon a mans body , victuals and such like , put in ship to be spended , and therfore should not scott and lott , with other goods : in so much , that when they become scant and wanting , each man is bound to communicate the same one to other . h but here it may be asked , whether yet should all kinde of cast goods , be up-set and made good by contribution , as for example , the goods transported above the overlap , and goods forbidden to be transported i sure , if such goods happen to be the cause of any scathe and danger , the master who received the same within his ship , shall beare the losse and also be criminally pursued therefore . k but if goods unadvisedly , without consent of the owner thereof , be cast out , on the sudden ; then may he himselfe upon his conscience esteeme his owne goods to the just worth , because the company hath that way by their rash dealing , lost the priviledge they had to estimate that goods . l in like manner the ship geare and apparell wracked by storme , imports no more contribution , then if a workman breake or spoyle his work-tooles , or instruments in his ordinary work , m except in the avoyding of a danger , as the helving the maste over-boord , n or the slipping of a tow-anchor or boate upon just fea●● , or at the desire of the mercha●ts . o but that should be alwayes proved by the oaths of the ship-men : for concerning all facts within house or ship , credit must be given to the domesticks and company familiar . p also if goods be put in without the master and clerks knowledge ; if they be cast , they shall have no contribution . q tit. . of contribution for pirates . if ship or goods be redeemed from a pirate , contribution shall be made therefore , by all ; because the redemption is made for the safety of all . but if the pirate be once master of all , and yet take but some speciall goods , whether from ship or merchant , and not as a contentation for the sparing of the rest , it should appeare in this case , that seeing the remnant is not safe hereby , but freely spared , that no contribution should be made for the taken goods . for oftentimes pirats take but things at their pleasure , and not of minde to spoyle . a yet now adayes because this chance of taking at pleasure , concernes ( in common judgement ) the rest of the goods as subject to that same pleasure of the pirat ; therefore should it be also in common upset by all to whom that chance is common . tit. xix . of contribution for spoyled and spilt goods . if through the losing of any cast goods , or upon any needfull occasion , the remaining goods be spoyled either with wet , or otherwayes ; a contribution shall be made , proportionable for so much as they are made worse . a tit. xx. of contribution for lightning and disburdening of ships for their easier entry to the port , and for other chances . if it be needfull to lighten a ship of her burden , for her easier entry to port or channell , the two parts of the losse fall upon the goods , and the third part on the ship ; except that the shippe surpasse in worth the loading , or that the charge of goods bee not the cause of her inability to enter , but some bad quality proceeding of the ship it selfe : a or that otherwayes it be provided in the charter-partie , that the goods shall be fully delivered at the port covenanted and appointed ; for then condition makes law : b in which case it is to be also observed , that if by occasion of lightning , the goods which are put in the boat or lighter , perish , the ship and remaining goods in ship shall upset the same . but on the contrary , if the ship and remaining goods perish after the lighter is once safe , no contribution shall be set upon the goods in the lighter : because the rule is constant , that onely then should goods be liable to contributions , when ship and goods come safe to port. c item , contribution should be for the pilots fee , that is taken in to guide her into an unknowne port ; d as also to raise the ship off ground when the fault is not in the master . e even so if two ships rush and crosse one over another , and the company sweare their innocencie , as that it lay not in their power to stay the same , contribution must be made for one equall upset of both their losses . f but not so if one of them perish ; because of that mishap , there can be no due proportion of the losse : for if it were otherwise , a malitious skipper , might of purpose set an old weake ship against a strong ship , in hope of some upset and recompence . and yet for redresse of the lost shippe , an action may be to the owner , against the negligent master , or the mariner who losed her , or cut her cable : g which action is called legis aquiliae , for dammage and scathe done . and therefore if such a chance befall in the day light , by a ship under saile against a ship riding at anchor , then the master of that sailing ship , shall make good the dammage or scathe of the other , to the extremity : and the like shall be done , if in the night the riding ship hold fire and light forth , or make any crying to forewarn the other . it also pertaines to this argument , h if some sort of goods , as salt , or corne , be laid on heap by divers partners , into a shippe without distinction , and that the master deliver to any of them their due measure , and before the rest receive their measures , the remaining salt or corne , washes or looses , he that had the good luck to be first served , enjoyes it fully without any contribution to the rest of the partners : ( i ) because when this goods was put into the ship , it was delivered to the master , tanquam in creditum ; and so he is become owner , as of lent money : which men are not holden to render in the selfe same pieces , but in value or such like coyne ; k except l there be some other condition past before : which in all affaires maketh law . neither can this be imputed for any fault to the master , because of necessity he behooveth to make delivery to one , first , before another . m tit. xxi . of the common manner of contribution , and execution thereof . in setting of contribution or rates , things must be estimate in manner following . first , the goods cast , spoiled , or reft ; to the price they cost , if their chances did happen before midde voyage : but if after the midde voyage , then to the price , the rest of the same goods attaine to at the market ; because there is here a consideration , rather of losse and scathe than of any gaine . a and because domage and losse should be drawne as it were in streite , and gaine and vantage spredde forth and extend , according to harmenopolus sentence ; spoyled and lost goods should bee set to the common worth , and not after mens affections : b except onely in goods unadvisedly cast : wherein for the correction of the rashnesse of the casters ( as who thereby appeare to have amitted their owne priuiledge ) the estimation of the goods is permitted to the conscience of the merchant or owner therof . ( c vide supratit . . secondly , concerning the persons , whose losses are under contribution , he should first deale with the master , to retaine all the same goods on the bottome of the ship , in his keeping , untill the rate be set and executed : d or else may omit all other persons , and pursue the skipper ex conducto : which also ceases , if the cast goods be found againe . e lastly , concerning the master of the ship his priviledge , it is not onely upon the detinew , and keeping of the goods and geere brought within his ship , which are thought as by a privie band to be obliged and given him in pledge for the fraught , by common consent of lawyers , but also for the due and timely satisfaction of such contributions ; because the imposed taxation , as likewise the fraught , is thought to sticke firmely to the said goods : and therefore the master may hold his hand thereon , untill satisfaction be made , f albeit that commonly the with-holding of other mens good be not allowed . g tit. xxii . of priviledged ships . ships or boats serving the country , or the prince , have great prerogatives . for first they goe free from all imposts , customs , and arrestments , a not onely in forth-going , but also in their returne , according to fredericke the emperour his constitution . b yet if a skipper serving the prince or countrey , wilfully falles on coastes and by-courses where he should not , to their hurt and hinderance , he merits death : c and the commanders or officers in chiefe parts , who wittingly suffer such skippers to lye and slugger , incurre a forfeiture of all their goods . d and if any man shal force the skipper of these or any other ships to take in more than his just charge , not onely should he upset all hurt and losse , but also be publikely punished . e and as these are the conditions of ships serving the prince ; so is it to be knowne that all sorts of ships are subject to this service , upon command : f otherwise in case they refuse , their ships shall be confiscat , except they report a testimony from the admirall of very lawfull excuse g yea , further is to be noted , that masters of ships and ferriers once so professed , are bound to serve as well subjects in common , as the prince ; h except they have left the trade , or be under a safe conduct , or have taken in moe , then they can well carry a ship-board . i and this is a common priviledge to all sort of loaded and burdened ships , to have the neerest place to the shore , for their discharge and unloading ; and therefore the ships lightened , to give them place . k lastly , even the persons who build , purchase , or dresse shippes expresly for a common-wealth to their . country , are accounted amongst the priviledged : l yea the frequenters of sayling are also priviledged in all courts . m tit. xxiii . concerning shipwracke . strangers incurring shipwracke in scotland , should have the same favour of us that we use to receive of them in the like case ; a so that no confiscation should be used against them , except they use to doe so to us , or that they be very pirats , or enemies to christianity : b otherwise , who steals any such miserable goods , shall pay foure-fold to the owner , if he be pursued within a yeere and a day ; c and as much to the prince or his admirall : yea , the onely stealing of a naile , or the worth thereof , maketh the thiefe guilty of all , to the rendring of all the remaining goods . d yea , by the emperour antonius his ordinance , this thiefe or robber of such goods should be battoned , and banisht for three yeares , if he be of any honest ranke ; but if he be base of condition , should be sent scourged to the gallies or metall mines . e and if any man should be so cruelly wicked , as to hinder the ship-broken men from helpe in danger , hee shall be recounted for a murtherer . f and therefore may no man hinder ships from forthlaying of tews & anchors upon land : * as was decided betwixt couper and seagy , anno . mense iulij , g in like manner , if any man should be so accursed as to hold forth a lanterne in the night , of intention to draw on ships to a danger , in place of a good port or harbour or safe roade , that wicked person should be punished to the death . h yea , though no harme happen , yet may the admirall punish him at his pleasure : i and therefore even fishers are forbidden to fish with light in the night , lest that sailers thereby be deceined with the false shew of an harbour . ii but for the better eschuing of these cruell evils , hadrian the emperour ordained , that all men having possessions on the coasts , should attend carefully upon such chances ; otherwise , to be answerable for al things missing by stealth or robbery . k item , if no man in due time claime such a wracke , it fell of old to the prince his customers , according to that of hermogenes and fortunatianus , l naufragia ad publicanos pertinento ; but now-adayes to the admirall , by the princes graunt . but concerning the action for shipwracke , it should be intended within a yeere and a day , m and sped by the iudge within two yeere . n where it is to be marked , that if the shippe onely perish and the goods are safe , in that case the goods shall pay the fift or the tenth penny ; according to the easie or difficult winning and saving of the said goods ; o for gold , silk , silver , & such like things of easie transportation , should pay lesse than goods of greater weight and difficult transporting , as being in greater hazard : p except the skipper carry-in his ship to a port or part where hee should not , nor the merchant would not ; for then is the merchant free of all the skippers losse , q and no way should upset the spoyled or broken ship . r but in cases of wracke , the lawes of england are also to be seene : as , westm. . . e. . vid. praerog . regis . tit. xxiv . of things found upon the sea , or within the floud-marke . ships , goods , or geare , or whatsoever other things found within the sea or floud thereof , are of three sorts : as , either found on the streame floting , and then are called floatson : or found on the sea bottom , and drawne up from the same by doukers and other meanes ; and then are called lagon : or found on land , but within the sea-floud , as cast forth there by storme and the water ; and then are called ierson . concerning floatson and ie●son , whether things be cast up by shipwrack , or else left as lost through casting in stormes , the finders thereof , as some lawyers thinke , a should doe therewith , as with other goods found upō land : that is , to proclaime the same to be forth-comming to the just owner ; because the loser or ●ynner of such goods remaineth still owner and proprietar thereof : b and if no man claime , the finder to keepe it to himselfe if he be poore . c but according to the old rhodian law , whether the finder be rich or poore , he may claime or rather retaine the fift part , for the safe keeping d if a douker finde drowned goods upon eight cubits deepe , hee gaines the third part ; and if on fifteene cubits , then he obtaines the halfe ; but upon one cubite , onely the tenth part . e yet if the finder be rich , and hath found goods by chance , hee should rather give it to the church or poore , as some say . f but now-adayes this goeth farre otherwise ; first , because persons endued with the superiority or signiory of any part of the sea-coast , do claime all or a part of these things , whether cast forth of ships , or otherwise comming upon their land , g which otherwise before was allowed to the finder : h even so , when shippes or boats were found on the sea , or at the coast thereof , without any living creature therin , and no man claiming the same for the space of a yeere and a day , then was the halfe allowed to the finder , and the remanent to the prince , as a derelict : i but since the erection and constitution of admiralls , this kinde of found goods are diversly par●ed ; for in france , the king , draweth a third , the admirall a third , and the finder a third . k and of old , in england , although such things were divided twixt the admirall and the finder , l yet now they are left to the arbitrement of both admirals in england and scotland , to consider the finder or taker with a condigne portion , for his travels , charges , and hazard in all circumstances ; m even with the halfe at least , according to that which tryphonius sets downe , concerning things found on land . n yet , if the finder conceale such goods , whether anchors , timber , jewels , dead-men with money or jewels about them , &c. he not onely loseth his just part , but may be also fined at the will of the admirall . o and thus farre concerning things found by the labour and travels of men . if whales , great grosse fishes , ships , or boats , without any living in them , by force of winde and waves onely , be driven to any coast or land , then all and whole appertaines to the admirall : and so generally , all casualties whatsoever . p tit. xxv . of things taken upon sea. now followeth to treat of goods taken upon sea ; which are of three sorts : for either they are taken from pirats , and sea-thiefes ; or from professed enemies in lawfull warfare ; or from such as not professing open warre , allowes taking reft to be exercised against us . which kinde of taking , is covered with the title of letters of marque , called ius represaliarum . and first , touching that which is taken from pirats , sith the goods which they have wrongfully taken from others , whether they be found in their owne , or in their successors possession , are esteemed to bee a just prey to any taker , so that account be made thereof to the admirall : in case the taker finde the goods of his country man or friend with the pirat , hee should make the same forth-comming to the just owner claiming the same ; his cost , charges and hazard , being alwaies considered and allowed ; a so that if any man buy or redeeme his neighbours ship from a pirat or enemy , hee must receive the price thereof from the owner . b but if no man claime the goods taken from a pirat , then should the same be delivered to the admirall , who ought to consider the taker with his due part thereof . if a ship or goods be taken by a professed enemy , who hath not brought it in praesidia vel locum tutum , for the making of a prescription ; or a right , and afterward the same is taken back , and recovered by any friend , and the just owner claime the same , it ought to be restored to the owner ; for that by the law , huiusmodi res non tam capta quàm recepta intelligitur . c but when such goods become a just and lawfull prize to the taker , then should the admirall have a tenth part : for so of old , the tenth part of lawfull spoile , was offered to god , in a manner ; as we may learne by that which abraham returning from victory over five kings , offered to melchisedeck : d and the remnant of the spoile should be proportionally divided amongst the takers , according to the law of god , set downe by moses , e and practised by king david ; f and yet not onely amongst severall persons , according to every man his proved travell and hazard . g so that the ship that sets no saile , fights not , nor hazards not with the rest , should have no part with the rest , thereof . h provided alwaies , that first and formost , the prisoners , captives , and taken goods of preyes , be in due time presented to the captaine , to be disposed by the admirall : so that if any man breake bulk , meddle , or dispose of any of those goods before , he may be punished , and the receiver or buyer prisoned , untill caution bee found , that these goods shall be forth-comming to the admirall , and just owner , according to a decision past betwixt the king of scotland and maubray , anno . . iunij . i if two forraine nations be at warre , and the one take a shippe from the other , and bring her into a port or road within the bounds of a neutrall nation , alike friend to both , then may the admirall of that neutrall nation ordaine that ship so taken and brought within the said bounds , to be restored to her owner ; and the persons captives , to their former liberty , even as if she had beene brought backe to her owne port and countrey againe . k besides that , generally in all cases , the action and cause of liberty , as priviledged , should be favourably considered : l and it is the honourable practice of princes , to make their countreyes an asylum , or sanctuary , to all distressed strangers that bee not pirats . lastly , concerning letters of merque , as we speake , or droict de merque , as frenchmen tearme it , sive ius represaliarum , and goods and things taken under that title upon sea ; surely , as farre as we may , we should prease to keepe gods law set downe by moses , m practised by king amasia , n and confirmed by the prophets : o that the father should not be punished for the sonne , nor the sonne for the father , but a difference to be alwaies put betwixt the guilty and the innocent . which thing moved emperours to make constitutions for the repressing of represalies in certaine respects . p notwithstanding , if our patience be so oppressed with the increase of robberies , spoyles , and violence upon sea , by men falsely professing friends , in such sort that upon no supplication , intercession , nor other travels , the princes of these wrongfull nations ( who onely can and should represse and redresse ) will doe justice , or neglect to doe their office ; then because such a dealing imports a iust cause of lawfull hostility and warfare , i see not but that such a calamity may and ought to be repressed , at least by these represalies and letters of merque ; q specially , sith that cause , in effect , resembles a warre denounced without solemnities of clarigation . and therefore , both according to the lawes of england , letters of merque are allowable ; and according to the old custome of scotland ; and the tenor of the act of parliament made by iames the first of scotland , r concerning shipwracke , to be followed for a rule to such cursed cases , that is to say , that other nations should have the like favour of us , that they shew to us . now being agreed that letters of merque are lawfull , as they are by statutes , customes and reason , specially upon a matter of great importance , and after a due warning , intimation , and one requisition ; so that it be done by the prince , and solemnly : s then what goods happen to be taken by that meanes , should bee brought and presented as aforesaid before the admirall ; t that a just inventary may be taken thereof , for divers good respects . tit. xxvi . of fishers , fishing , and traffiquers therewith . albeit hunting , hawking , and fishing , be of one kinde , as subject to a like law and liberty , a because what wilde beast , fowle , or fish be once taken by any man , commonly it becommeth his owne proper by the lawes of nations ; yet is there a difference twixt these three : for , albeit hunting and hawking be almost every where lawfull , yet fishing is forbidden in other mens ponds , stanks and lakes , b as comparable with the●t . yea , now a-daies , in rivers , and in parts of the seas neerest to the possessions of men having grant and infeftment from the king , may fishing be forbidden , but no private man , without the grant of the prince , upon any pretence , or allegation of long consuetude and prescription , may acquire the propriety of any such part of the sea , as to prohibite others to fish there also ; c for such prescriptions onely pertaine to princes . to returne to the quality of fishing ; sith it is not onely allowable to all sorts of persons , d but also commendable , and alwaies to be preferred to all other trades and traffiques upon sea , not onely for necessaries , but also for the great good and profit redounding thereby ; all ciuill and vertuous princes have diversly forthshowne their care , for the entertaining and advancing thereof : as , by ordinances to build shippes and boats to that purpose ; e and by their wise appointing of certaine onely times for the fishing , as namely , of salmon , under paines not onely of fynes , but also of forfeitures , and of death , according to the manner of the offence , and contempt of their decrees and statutes . f which princes also ( for the increase of fishes ) have , as it were with common consent , forbidden the making , setting , and using of crowes , yarrs , dammes , fosses , tramelets , parkings , dyking and herrywaters , in any waters g where the sea ebbes and flowes , under paine of confiscation of all the goods of the transgressors in scotland . h yea , albeit that any man were of old infefted with keeping of crwiffes , weares , and kiddles , &c. yet must he keepe the saturdaies slop : that is , to lift the same from saturday at after-noone till monday ; and also to make each heck or mesh of his crwiffe three inches wide , i except for taking of smelts , loches , and such like that will neuer be bigger : as also , for to set the same upon the waters , that the mid-streame may have the iust space of sixe foot wide , under the paine of five pound . m and thus farre concerning the maintenance and increase of fishes , by our scottish lawes and custome . it followeth , to set downe concerning the fishers their safety and priviledges . wherin it is provided , first , that all shippes sayling into the parts where herring are taken , at least during the taking thereof , shall let downe ●aile after day light past , let their anchor fall , and keepe watch with lanterne and light , untill day light appeare again , lest otherwise the poor fishers should be over-run , or their nets broken : their paine in denmarke , is death to the transgressors : n and the fishers are likewise forbidden to use light in their fishing by night , lest they deceive saylers with the false shew of a port . nn likewise , lest any of the fishers harme or hurt one another , it is diversly provided , as also cōcerning the right measure of their nets in length & in bredth ; o as may be seen by the statutes of sundry nations vid statuta angliae . and specially therfore it is agreed of long time sithence , by the sea-farers on the forth of scotland ; p first , that no ground-draffe or drag-net , be set before march , nor upon deeper water then fourteene fathome . item , that none shall lye to their neighbours when he shall be asked concerning the length and depth of his tewe , when he is in driving : neither yet wittingly and wilfully to suffer his tewes and nets to flit , and runne over one another , under the paine of ten pound for every transgression of the premised articles . item , above all , that from the sun-set on sonday , no man lay nor hale nets or great lines , or exercise any labour , under the foresaid paine . item , for the further incouraging of fishers in the west and north isles of scotland , there is a statute that no other customes be sought of the fishers in the said i●es , but only the kings customes ; under the paines due to manifest oppressors against them who exact the same . q lastly , concerning fishers and traffiquers with fishes , it is ordained that not onely all fish slaine and taken neere to the coast of scotland , be brought and presented to the market places , where the takers or slayers thereof dwell : r but also all fishes taken in the north and west isles or firths , to be brought directly to the townes where the fishers dwell ( that the need of the countrey may be first served ) s and presented to the market places : from which none may carry them away to packe and peil , but onely betwixt the houres of eleven and two in the afternoone , under the paine of confiscation . in which markets , it is lawfull to the provost & bail●ffes to set downe prices , and to compell the packer and peiler to sell againe for the need of the lieges . t which being done , they may transport the remainder where they please . u and in case they contemne , then their fishes to be eschete , two parts to the king , and the third to the magistrate ▪ x likewise , concerning the barrelling of fishes , it is ordained that the measures prescribed of old shall be kept : videlicet , each barrell of herring , or of white fish , to be of twelve galons ; y and the barrell of salmon of fourteene galons , according to the measure of hamburg , z under the paines of escheting there of from the pa●ker , and of five pound to be lifted from the couper . a and therefore hoop irons to be made in each towne , for the tryall and gaging thereof b vid. statuta angliae . tit. of fishing ; in the abridgements . tit. xxvii . of the community and propriety of the seas . having of late seene and perused a very learned , but a subtle treatise ( incerto authore ) intituled mare liberum , containing in effect a plaine proclamation of a liberty common for all of all nations , to fish indifferently on all kinde of seas , and consequently , a turning of undoubted proprieties to a community ; as the fift chapter thereof at large discovers ( wherein the unknowne authour protesteth , that he may for his warrant use the authority and words of such old writers as have beene esteemed most mighty in the understanding and judging upon the naturall condition of things here below ) and the discourse , being covered with the maintenance of a liberty to saile to the indians ; i thought alwaies expedient by occasion of this argument of fishing contained in my former title , by gods grace , to occurre thereunto ; as manifestly direct , at least ( in my weake sight ) tending to the prejudice of my most worthy prince and his subjects ; and that not onely by arguments derived from the first verity of the nature of things , but also from his owne proofs , warrants , and their authors . and yet before i goe any further , i cannot passe the authour his ridiculous pretence , in both epistle and beginning of his discourse ; as for a liberty onely to saile on seas : a thing farre off from all controversie , at least upon the ocean ; specially , since passage upon land through all regions christian , is this day so indifferently permitted to all of all nations , even to turkes , iewes , pagans , not being professed enemies ; and therfore much lesse to be restrained on sea in all respects . so that i cannot but perswade both my selfe , and other loyall subjects , that the said pretence is but a very pretence ; and so much the more to be suspected as a drift against our undoubted right and propriety of fishing on this side the seas . now remembring the first ground , whereby the authour would make mare i●herum , to be a position fortified by the opinions and sayings of some old poets , orators , philosophers , and ( wrested ) iurisconsults , that land and sea , by the first condition of nature , hath beene and should be common to all , and proper to none : against this i minde to use no other reason , but a simple and orderly reciting of the words of the holy spirit , concerning that first condition naturall of land and sea from the very beginning ; at which time , god having made and so carefully toward man disposed the foure elements , two to swimme above his head , and two to lye under his feet : that is to say , the earth and water , both wonderfully for that effect ordered to the up-making of one and a perfect globe , for their more mutuall service to mans use : according to this , immediately after the creation , god saith to man , a subdue the earth , and rule over the fish : which could not be , but by a subduing of the waters also . and againe , after the floud , god saith , replenish the earth : b and for the better performance hereof , god in his justice against the building of babylon , scattred man-kinde over all the face of the earth ; c therefore is it that moses saith , d these are the iles of the nations divided in their lands . so that hereby is evident that things here done , are not so naturally too common ; sith god the author of nature , is also as well author of the division , as of the cōposition : and yet howsoeuer , in his justice as is said , yet in his mercy also and indulgent care , for the welfare and peace of mankinde . for those are sentences both vulgar and sure , set downe by the romane iurisconsults , e communio parit discordiam . quod communiter possidetur , vitio naturali negligitur . habet communio rerum gerendarum difficultatem . f afterward , the earth , by the infinite multiplication of mankinde , being largely replenished , and therefore of necessity thus divided ▪ and things upon the earth not sufficient for the necessaries and desires of man in every region , followed of force the use of trading vpon the seas ; not onely for the ruling of the fish therein , according to the commandement given by the creator at the beginning , but also for transporting of things necessary for the use of man. for the which , and other causes above mentioned , the waters became divisible , and requiring a partition in like manner with the earth ; according to that of baldus : videmus , de iure gentium , in mare esse regna distincta , sicut in terra arida . g and thus farre have we learned , concerning the community and propriety of land and sea , by him who is the great creator and authour of all ; and therefore of greater authority and understanding then all the grecian and romane writers , poets , orators , philosophers , and iurisconsults , who-so-ever famous : whom the author of mare liberum protests he may use and leane ●o without offence . now , sith the weaknesse of this his first and principal ground doth this way appeare ; let any man judge upon the truth of that which cicero ( his man ) sets down , g sunt privata natur a nulla ; and likewise of all other his authors their opinions , for the fortification of an originall community of things . it followeth to examine the chiefe warrants of mare liberum ; and to consider how farre they may beare forth to a common liberty for fishing , on all seas indifferently . the author cites vlpian , a renowned iurisconsult indeed , and martian their sentences ; alleaging h that vlpian should say , i ante aedes meas aut praetorium ut piscari aliquem prohibeam , usurpatum quidem est , sed nullo iure , adeo ut contempta ea usurpatione , iniuriarum agere potest . sz . prohibitus . that is to say , if i should forbid any man to fish before my house , he may mis-know such an usurpation , and intend action of injury against me , for a wrongfull staying him from fishing there . but as i read , k vlpian his words are thus ; sunt qui putant iniuriarum me agere posse : that is , there are men who thinke , i may intend action , &c. it is true also , that martian saith , nemo ad littus piscandi causa accedere prohibetur . l and yet neither of these two iurisconsults , pronounceth absolutely in these cases , but upon another higher warrant : and therefore vlpian addes , saepissime rescriptum est n●c piscari , &c. prohibere posse . m that is , it is by writ most often answered , &c. which martian expounds most clearely , when he saith , nemo igitur ad littus maris piscandi causa accedere prohibetur ; and subjoynes his warrant , idque divus pius piscatoribus formianis rescripsit : n that is , no man is forbidden to come to the sea side and fish ; as the emperour divus pius did write to the fishers of formian . so that you see the emperours to have been warrants to these lawyers , and their written opinions , concerning the voyage of the sea . now , to passe the propriety which hereby we see these emperours did claime on the seas , i aske first , to whom did the emperours write such resolutions ? was it not to the professed subjects of their owne empire ? and what ? even the usage of the seas , and coasts of their empire , to be indifferently common to every one of their own subjects : and how ? iure gentium ; that is , according to the law kept by all other nations , to every one of their own nation in like cases . moreover , albeit these and other romane lawyers pronounce so , concerning the community of the sea-shoare , and coast , that private men may build houses within the floud-marke , and appropriate them to themselves , according to that which neratius writes , quod in littore quis aedificat , eius fit : o that is , what a man builds on shoare , it becommeth his owne ; yet upon this condition , tamen decretum praetoris adhibendum est ut id facere liceat , saith pomponius : p that is , providing the praetor his decree be interponed thereunto ; or that the prince give grant , as vlpian writes ; q vel ut princeps concedat . as for the remnant of these sorts of warrants alledged for mare liberum , sith they sing all one song for the common use to the people , and propriety to the prince , if men will but onely marke them ; i need not stay further upon them . so that every man may see both the use of the word commune , and the meaning of iure gentium among these lawiers , whereupon this mare liberum appeares so to be founded , that it cannot be shaken . for , commune , there is nothing else but publieum , q●asi populicum ; signifying a thing common for the usage of any of one sort of people , and not for all of all nations : according to that of modestinus , roma communis patria est . r neither yet doth that word , iure gentium , meane any law set downe by common consent of all nations ; but onely notes the example of the law , or custome of other nations : as if they would say , the liberty of fishing on our seas , and of other doing there and at shoare , should be common to every one of the romane empire , like as the same is common to all of all other nations , on their seas , and their shoares . likewise , that of placentinus ; quod mare sit in nullius bonis , nisi solius dei : that is , god is onely lord of the sea ; and so say we with king david , that the land also is the lords . s but that of faber , t mare esse in primaevo iure quo omnia erant communia , i need no otherwise to refute now , than i have done above already . and these are the authors and warrants whereupon mare liberum inferres his conclusion ; demonstratum igit ur nec populo , nec privato ius aliquod in mare competere posse , quum occupationem , nec natura , nec publici usus ratio permittat . u which , how it followeth upon the premisses , let men judge ; sith neither these his authors make for him , neither yet the reason inserted in the conclusion beares out ; which is , quum occupationem nec natura , nec publici usus ratio permittat : that is , neither nature , nor the common need , suffers the sea to be acquired in property to any occupation . for answer , first concerning the nature of the sea , as supposed impossibly occupable or acquirable ; is this so thought because the sea is not so solid , as is the land , that men may trade thereon , as upon land ? or that it is continually flowing to a●d fro ? surely , that lacke of solidity for man his trading thereon by foot , shall not hinder the solid possession of it , farre lesse the occupation and acquiring , if we will give to the sea , that which the iurisconsults indulgently grant to the land , which also cannot be denied . paulus the iurisconsult saith , x qui fundum possidere velit , non utique omnes glebas eius circumambulet , sed sufficit quamlibet partem eius introire , dum mente & cogitatione hac sit ut totum possidere velit usque ad terminum : that is , it is not needfull for him who would possesse himselfe in any part of the land , to goe about and tread over the same ; but it is sufficient to enter-in upon any thereof , with a mind to possesse all the rest thereof , even to the due marches . and what can stay this to be done on sea , as well as on land ? and thus farre concerning the solidity . as for the flowing condition of the sea , howsoever it be liquid , fluid , and unstable , in the particles thereof , yet in the whole body , it is not so : because it keepes the prescribed bounds strictly enough , concerning the chiefe place and limits thereof . vvhich discourse , gives us occasion of force to answere to a scoffe cast in by the author of mare liberum , concerning the possibility also of marches and limits , for the division of the seas : y mundum dividunt ( saith the fore●aid authour of mare liberum ) non ullis limitibus , aut natura , aut manupositis , ●ed imaginaria quadam linea : quod si recipitur , & geometrae terras , & astronomi coelum nobis eripient : that is , they divide the world , not by any marches , put either by nature , or by the hand of man , but by an imaginary or fantastick line : which kinde of doing being embraced , the geometers may steale away the earth , and the astronomers the heavens from us . it is true , that there are not in every part of the sea iles sensible ( as gernsey is to england in the narrow seas ) or sands ( as the washes at the west seas of england ) nor rockes , or other eminent and visible markes above water , for the designation of the bounds ( or laying-out the limits ) of the divisible parts thereof : but god , who is both the distributer and first author of the diuision and distinction of both land and sea , hath given an understanding heart to man for the same effect , as well as for all other necessary actions wherein he hath to employ himselfe : so that to a very wonder , god hath diversly informed men by the helpes of the compasse , counting of courses , sounding , and other waies , to finde forth , and to designe finitum in infinito ; so farre as is expedient for the certaine reach & bounds of seas , properly pertaining to any prince or people . which bounds bartolus z hardily extends and allowes for princes and people at the sea side , an hundreth miles of sea forth from their coasts , * at least ; and justly , if they exercise a protection & conservacy so far : and this reach is called by the doctors , districtus maris , & territorium . a it is true , baldus b esteemeth potestatem , iurisdictionem & districtum , to be all one . to conclude then , since papinian writes in finalibus quaestionibus vetera monumenta sequenda esse ; c what more evident monuments for our king his right in the narrow seas , then these isles of gernsie ? &c. and for the eastern seas , direct from scotland , what is more antiently notorious than that covenant twixt scottish men and hollanders , concerning the length of their approaching toward scotland by way of fishing ? and thus farre through occasion of answering to that alleadged impossibility , of acquiring the sea by occupation , because ( as would appeare ) of the unsolidity therof , for any foot treading . it rests to touch the other cause naturall , for that other impossibility , which may be the continuall fluxe and instability of the sea ; in such sort , that it would appeare not aye to be one and the selfe same body , but daily changeable . for answer , i must remember that which the iurisconsult sets downe so prettily : d , suppose ( sayes he ) a certaine colledge of iudges , or a legion of souldiers , or the particular parts of a ship , or of a mans body , should so continually and often be changed and altred , that none of that first colledge or legion could be found alive , nor yet any part of the shippe or body could be so certainly demonstrate , that it might be affirmed for the very same that it was at the first ; yet if that colledge or ●egion be in number full , and the ship or man whole and able in all the frame , they shall be accounted and esteemed not to be new , but to be the very same which they were at the beginning : even so , however the sea many waies and hourly changes , in the small parts thereof , by the ordinary rush on land , mixture with other waters , swelling in it selfe , exhalation and backe receipts thereof by raine ; yet since the great body of the sea most constantly keepes the set place prescribed by the creator , i see not in this respect neither , wherefore the nature of the sea should not yeeld to occupation and conquest . and thus farre concerning mare liberum his last and great conclusion , against all appropriation thereof by people or princes . i call it his last great conclusion , because of other two passing before , whereof the first is this ; mare igitur proprium alicuius fieri non potest , quia natur a iubet esse commune : e and for what reason ? even because cicero , virgil , and plautus have said so . to whom i could also assent concerning the great , huge , and maine body of the sea . his next conclusion is this ; est igitur mare in numero eorum quae in commercio non ●unt , hoc est , quae proprij iuris fieri non possunt : f that is , the sea to be of that order of things , which cannot bee appropriate to any man. his warrants for his conclusion also are the romane lawyers , whom i said to be wrested by mare liberum ; and therefore must shew the same , contrary to his purpose indeed . martianus , g as the authour of mare liberum largely grants , h saith , that if any private man have himselfe alone , by any lawfull space of time sufficient for a prescription , kept and exercised fishing in any ●reeke or nooke of sea , which they call diverticulum ; hee may forbid all others to fish therin : which papinianus i also confirmeth . the which , as i accept , so i would further demand of him . by what reason should a private man , who hath no other care nor respect but to himselfe alone , be thus priviledged and preferred to a prince ? who not for himselfe ; but for his people also in common , yea and for the safety of all traders passing his coasts , with great charges and care protects and conserveth the seas neerest unto him : shall not this prince be acknowledged , at least with the good which that sea , conserved by him , offers so directly to him ? and i pray you say , what lesse authority had leo than the rest of the romane emperours , to grant to every one in particular , having possessions at the sea side , as much of the ●ea as was neerest against their lands , k with the fishings thereof ? what then , shall not princes be equalled , in these cases , with subjects ? or rather , have not all princes a like right & power within their own precinct and bounds , as these roman princes had ? but now to draw neerer to the chiefe point of our purpose , and so to the end thereof : as i accepted mare liberum his former large graunt , so now also doe i more heartily embrace the next , which is this ; when after these his conclusions , he had said in tanto mari siquis piscatu arceret , insanae cupiditatis notam non effugeret : l he subjoynes according to that of cicero , m quando sine detrimento suo quis potest alteri communicare in ijs quae sunt occupanti utilia & danti non molesta , quid ni faceret : and subjoynes afterward , n et si quicquam eorum prohibere posset , puta piscaturam , qua dici quodammodo potest pisces exhauriri : that is to say , if the uses of the seas may bee in any respect forbidden and stayed , it should be chiefly for the fishing , as by which the fishes may be said to bee exhaust and wasted ; which , daily experience these twenty ye●res past and more , hath declared to be over true : for wheras aforetime the white fishes daily abounded even into all the shoares on the easterne coast of scotland ; now forsooth by the neere and daily approaching of the busse fishers the sholes of fishes are broken , and so farre scattered away from our shores and coasts , that no fish now can be found worthy of any paines and travels ; to the impover●shing of all the sort of our home-fishers , and to the great damage of all the nation . whereby , i see at last , the author of mare liberum not so addict to serve any mans particular desires , as to answer ( forsooth ) to his profession of the lawes , that is , to allow the proper right for every man and nation , and to hurt none ; according to the three generall precepts of all lawes , set down by caius , o and after him by ●ribonianus : p honestè vivere ; alterum non laedere ; & ius suum cuique tribuere : whereof the second tryes and rules the rest ; according to the vulgar saying out of pomponius , q neminem debere cum alterius damno locupletari : and that of tryphonius , r ex aliena iactura lucrum haurire non oportet . and therefore i would meet him with his deserved courtesie ; even to proclaime mare liberum also : i meane that part of the maine sea or great ocean , which is farre removed from the just and due bounds above mentioned , properly pertaining to the neerest lands of every nation . atque ita esto mare vastum liberrimum . tit. xxviii . of war-fare shippes , and of the captaines and companies thereof . and since wee have written above of priviledged shippes a amongst which the warfare-ships of princes are first and chiefe ) and somewhat of the conservacy of the seas , in the last title ; i cannot here passe the warfare-shippes unmentioned , albeit not in such large manner and measure as their imployment now-a-dayes requires . as for the matter fit for their building , and things necessary for their forth-setting and preparation to sea , i must refer the same to iulius ferretus , and to vegetius , who have written largely thereupon . some touch i have here subjoyned , in the last title of this booke , concerning the materials : as likewise somewhat is premitted concerning their priviledges , in that title of priviledged shippes . therefore would i here set downe ( but very briefly ) some thing concerning the captaines , commanders , & companies of the prince his warfare-ships , the graces & vertues required in them , with their duties , power and preferment . captaines of princes warfare-shippes should be men , first , fearing god , because they must continually walke in the midst of the wondrous workes of god. next , they should be stout , hardy , and couragious . thirdly , vigilant , diligent , and carefull ; and therefore very temperate on sea : b specially , because their imployment , as it is full of hazard and danger , even so are their occasions and opportunities sudden and momentanie . therefore their commandement and power over their company , not onely surpasseth the power of masters and commanders of private shippes , but also that of the captaines on land ; and therefore their honour and estimation every way higher also , because of their greater charge , care , and hazard . their duty toward their company , is first , that they chuse such as bee free from hainous and scandalous offences . c next , that they suffer none of their company to bee idle , but to punish as well the sluggard as the rebellious : d yea , even those who are irreverent towards them ; e and againe , should with all loving care see to the due food of their company , heare their mutuall plaints , hold them in peace by all obedience , visit , refresh , and with all helpes comfort the hurt and diseased . f as for the captaines their other duties to the prince and admirall , with their owne priviledges , they are all gathered out of old customes , and at large set downe in that booke called l' admirall de france . tit. xxix . of watermen and ferriers . ferryers and watermen are bound to serve all true lieges for their due fare ; a so that they may be compelled thereunto : b and most , justly , because it was in their owne hand and power from the beginning to give and apply themselves to that calling and trade , or not . and if therefore they faile , it shall be , according to the law of scotland , a point of dittay or inditement against them in the first iustice-court ; and if they transgresse unto the third time , they may be suspended from their trade , c except they can alleadge a just cause ; as , of feud or hostility . item , it is ordained , for the easier boating and landing of men and beasts , that ferriers make , and have ready , fit and convenient bridges , or else to lose their boats. d lastly , ferriers and watermen are no lesse bound , than skippers and masters of shippes , to render againe what-ever they receive to bee carried within their boats. e but concerning their ordinary fares and hires , it is neither needfull nor expedient in this place to recite the divers statutes made thereupon ; because that first they are at great length set downe in the statutes of england and scotland : next , because their fraughts have beene , according to the rate of times , changed and altered even to the triple , as specially in scotland f so that now also , according to the condition of this time , their portage , fraughts or fare , may be of new considered by his majestie , or admiralls , according to the quality of the boats , and the space of passage and time , either shorter , longer , or hazardfuller , during their service ; but with a due proviso , for the repressing of their rude and uncivill manners . for truely , if the roman iurisconsults might of old by any reason call mariners , in generall , pessimum genus hominum , g ( which in these latter dayes for the most part is amended , partly through christianity and civill conversation , & partly ; by good lawes , praise be to god ) then may wee now use that same still , at least against the most part of watermen and ferriers ; as requiring to be reformed , or at least by correction repressed . * tit. xxx . of shipwrights . to conclude this treatise , there remaineth a speciall sort of persons to be considered and respected , as the forgers and framers of the instrumentall causes of all sea-faring ; to wit , shippe-wrights , and builders of ships or boats , called by the romans , imitating the grecians , naupegi : and by the italians , following the latter grecians , calafatti , as is above described ; a and therefore subject to the jurisdiction of the admiralty b as accountable to the admirall and his iudges ) as accessories of sea causes , for their skill , diligence , and dutifull discharge in every respect , by a frame not onely likely & comely , but a worke also strong , ticht , and durable : or else they must undergoe the pains of the law , called lex aquilia ; that is to say , all costs and scath happening by their unskilfulnesse , negligence , or what-ever other fault or amisse . c and therefore , first touching the materials , they should not onely furnish the same good and sufficient , but also , if the furniture pertain not to them , they must refuse to take from the furnishers bad and vnmeet geare and stuffe for the worke . d as for example , aller , beech trees , and such like brickle and naughty timber for salt-water , or for the seas . neither should they put greene timber in worke ; but ought to fore-see if they can , that their wood be cut downe either at the wane of the moone , and in the deepe of winter , or at such time as experience declares wood to be most solide and durable . for timber cut at the contrary times , is commonly full of moysture ; and therefore being afterward dryed , becomes clung , and open to receive water . the like care and skill is required in the iron , and all other necessaries , to the end that the workes may prove strong , durable , right , and comely . this being done , it resteth to consider their hires and fees : which because they ordinarily depend on the conditions agreed upon with the party , which also commonly is cavelled withall before a full performance of their worke , upon surmises and quarrels ; therefore to occurre to all such doubts and discords , the contracts of such bargaines should be ( after the example of other seafaring dealings ) made before the admiralls deputy ▪ or iudge , and registred in their bookes . d last of all , as shippe-wrights were of old , e so are they also of late , forbidden , f under paine of treason , to communicate their skill and art to enemies and barbarous people . g likewise , they are forbidden ( as are also all other societies of handy-crafts-men and trades-men ) to conspire among themselves to enhance their wages , or hire , or to receive excessive wages . h finis . notes, typically marginal, from the original text notes for div a -e a gellius , lib. . cap. . b strab. geogr. lib. . cap. . c ibid. d vide il. rhodior . in prin . e l. deprecatio ad l. rhod. e● c. rhodiae leges . distinct . . f l. . sect . licet . de exerc . act . g suet● . ca. . h de situ orbis . i lib. . natur . histor . vide ●zechiam . c. . k dotimus in lib. suo legoli . l vide act . par . lia . scot. m vide statut . ang. a l. . de , exercit . act . b l. . ad l. rhod. a livius lib. ● . b l. seius saturninus ad s. c. trebell . c vide fragmenta ascripta polybio . d vide alberic . ad novell . . & . e l. à proconsulibus . c. de appell . f tòm. . c. ● regist . scot. g l' admirall de france . h vide diplomata admiralior . in utroque regno . vide latè de off . admir . ang i l' admirall de france . a l' admirall de france . b eodem . c eodem . d secundum act . parliam . iac. ● . cap. . e l' admirall de france . f looke the charter of the trinity house on thames . g l' admirall de france . h kintor . art . a il consolato del mare . b eodem . a perladeprecatio ad l. rhod. bald. in l observan . in sect . antiquam de off . proc●ns . b innoc●nt . in e. vlim de ●erb . sig. c per l. . de vent inspic . d l. de submersis c. de nauf . lib. . e vide rotam genuae , & dd. f ●artol . lu●ius & iohannes ad d. l : de submersis . g secundum l. illum de pet. hered . h dd. i● c. proposu 〈◊〉 . de sor . comp ● . i l' admirall de france . k si quis . . c. de naufrag . l l. fin. ad l. rhod. m l. quoties . de naufrag . mm vide statut . ang. n l. de unoqu●que . dere iudica . & l. quoties . c de naufrag . lib. . o de l. quoties . p il conselato artic . . & . q consent of ●ll sea lawes . r de offic . admi . ang. in fin . cum ibi citatis . s ibid. t il conselato ● u denmarke . a l. . & passim . ad l. rhod . & l. . parag ▪ ●●naur , caup . b vide l. semper de iur . immun ita . & l. . c. de navicular . vide vegetium de re militar . c vide lege● navales rhodior . d il consolato ▪ e vide dd . il. navales , & plautum in ruden●● . f vide dd . il selec . rhod. * lib. ▪ g vide il consola . h vide dd il. selec . i vide il consol . k ferretus de re & iure navali . l l. . parag , naut . caup . m il consolato . n vide budaeum ad l. . naut . caup . o vide l. debet . parag . haec actio . naut . caup . a il naval . rhod . select . art . . b vide bartol . in l que● rerum . parag . si navem . de leg . argumento l. labeo de . supel . ligat . &c. c cap . & . art . iaco● . . vide de il. rhod. d d. art . . e art. . il. naval . rhod. * per legem item parag . si in lege l. ca. f oleron . g per l. si , ex conducto , & l. si item fundus , & l. haec distinctio & d. l. si in . lege . loca . h d , l. ex conducto . i 〈…〉 navalium . k art. . cod . m d l. si in lege , & l. ult . ad l. rhod . & d. l. ex conducto . n l. ult . loca● . o oleron , & l. ult . adc . rhod. p d. l ult . q d. l. item . r l. . de nauf c. theodos. & l . de nauf c. iallin . lib. . s v●de act . par . t l. u●ique parag . fin . & l qui petitorio . parag . fin . de vend . l. item queritor . sect . si navicularius . c. ●oca● & l. u●t . de naufrag . u la ro●l● oleron . x art . ● l●g . naval . rhod . y denmarke . z oleron . * dd. in l. qu● romae parag . callimachus . de verb oblig . a l. unica c. ne quid on●r pub . lib. ● . b c. &c. 〈…〉 act . r. iac. ● . c il consolato del ma●e . d l. pe● . parag . si navis . loc . & l. si pecuniam . de cond . indeb . & l. qui fiscalis c. de navicul . lib. . & l. quum proponas de naut . ●oen . e per. l. quum proponas . ad l. rhod . f per l. ● . c. d● nav . b. non excus & l. minim● . de espisc . aud●en ▪ g bat● . in l. in actionib . in fin . de in lit . iurand , & in l. unic . furt . advers . naut . h per l. item quae parag si ●ull● . loc . a l. . de exercit . act . b d. l. c oleron . d eod. e eod. f eod. g l. item magister locat . h oleron . i denmarke . k leges naval . rhod. art . . l eod. art . . m art. . eod . n vide. l. . parag . quadam de exercit . nn d. l. parag . quaedam . n c actor . per lac & l' admiral de france . o l' admirall . p il consolat del mar . at . delmar . q eod. a t. t. nau● , caup . b l. . in fin . eodem . c l. . eod . d d. l. . parag . ● e art. ll . navalium . f l. . depositi . f eod. art . . g art. . eod . h oleron . i eod. &c. . &c. . act . iacob . . k oleron . l d. l. . in fin . & l si vendita de perie . rei . vend . & l. . & . naut . caup . m d. l . & l. . eod . n d. l. . o vide d. l. & l. unic . furt . ad naut . caup . p l. fin . naut . caup . & per l. itaque de ed. edict . q bartol . & iason in l. non solum parag . mortem . de nou oper . nunc . r instit. de ob . qu● ex delict . parag fin . s l. quicu● alio . de rog . iur . t l. . in fin . naut . caup . u seund . fin . l. ult . ad l. rhod. & l. quum proponas c. de naut . s●●nor . x accursius in l. . naut . caup . per l. mela ad l. aq . y per. l itaque de furtis . z la reol d' oleron . a per l. quantae : de pu● . b per l. fin . parag . si propter necessi●atem eod . a oleron . b per. l. . de exerc . act . & l. fin . naut . caup . c art. . ll . naual . d art. . eod . e per. l. ulr . ad l. rhod. f oleron . g eod. h art . il . naval . i ll consolato . a oleron , & il consolato . b il consolato . cap. . c denmarke . d oleron . e eodem . f denmark . oleron . g denmark . h denmark . i eodem . k eodem . l oleron . m eodem . n eodem . o eodem . p il consolato . q oleron . r denmark , & oleron . s eodem . t il consolato del ma●e . u eodem . x oleron . denmarke . kinror . y bald. in l. certi iuris . loc . z l. nemo . de reg . iur . & l. plerunque . de in ius voc . a il consolato . b l' admirall de france . a oleron , & arg bult . ad l. rhod . b oleron & il consolat . c denmark . a l. r. de foen . naut . b l. periculi . eod . c vide passim ad . ll . de foen . naut . & ad . ll . naval . rhod. d vide l. . c. de foen . naut . e art. . & leg. naval . f art. . eod . g d. art . . h art. . eod . a parag. exercitor . iust . de ob . ex quasi delic . t. t. naut . coup . b eod . ibid. c d. l. . . & . eod . d l. in prin . eod . e d. l. . & l. qui cum ali● de reg . iur . f l. ult ▪ de exer . act . ff per l. interdum . cum seq . qui p●tior in pig . g passim . d. l. . h d. l. . parag . . i l. . sect . . 〈◊〉 l. rhod. k oleron . a l. fin . c. prosocio . & pass . inst . & d. eod . b l. in hoc parag . si conveniat . pro soc . c denmark . cum ll . hic seq . d l. arboribus parag . naves de usufr. e glossa in l. si navis . & iuris . in l. utique para . culp● de r●iundic . & l. arborib . parag navi● . de usufruct . f consolato . g maerobius lib. . c. . h secundum citata , & secundum . l. bona fides . deposit . a oleron . b il consolato . c art ● . il maval . select . d oleron . e l. . & . ad l. rhod . f d. l. . & oleron g eod . h d. l. . i l. . &c. actor . iacob . . k arg. l vnie . c. ne quid oner . public . l per. l. si fide . iussor . d. qui satisd . cog . m d. l. & l. navis eod . n l. amissae . eod . & oleron . o d. l. . & il consol . del . mar . p per. l. conse●su . c. de repud : & l. qu●ties . c. de naufrag . &c. veniens . extr . de testib . &c. . de pr●bat . q il consolato del mar . a vide lat● . l. . ad l. rhod . a vide l. navis . ad . l. rhod . a oleron . b l. . verse quod convenit . depos . c d. l. navis . & l. amissae ad l. rhod . d oleron . e eod. f eod . & l. quemadmodum . parag . si navis ad . l. aquil. g d. l. quemadmodum . parag . si navis ad . l. aquil h art. . . ▪ naval . rhod . k iust. in pr. qu●b . mod . re contrab . ob . ●e . l. . si cert . peti . l quod convenit de verb. ob . m vidd . l. in menave . a l. . in fin . ad l. rhod . & il consolato . b d. l. navis & l. pretia . ubi bartol . ut ad . l. . c. de prog . milit●r . lib. . c per. l. si ●ideiussor . qu● . satisd . cog . d l. ad l. rhod . e d. l. . in fin . f l. . de dol . mal . excep . & l. si non sortem . de cond . in de . g l. . parag , rediguntur . d. quod vi ●ut clam . a l. . de navicul . c. lib. . b auth. 〈◊〉 filiu● pre patre . c l. . de navicular . c. lib. . d l. ult . eod . e art. . il. selectar . naval . f vide tit. de navib . non excusand . c. g de offic . admir . ang. h albericus ad tit . naut . caup . & in l. unic . furt . adver ▪ naut . caup . i bart. & bald. in d. l. unic . k wis●i● c. . l qui navium de privileg . creditorum . m c. innocentius . de for . comp . a . actor . iacob . . b l. . c. de naufrag . & auth . naufragia , c. de furt . c l. . in pr. de incend . ruin . l. in eum cum auth . seq . de furt . d l. . in fin . de incend ru . nauf . e l. pedius . eod . f arg. l. sacc●larij de extraord . crim . * gaius l. . de rer . divis . g tom. . regis● . scot. h per d. arg . l saccula . ●i . i per l. . de incend . ruin . nauf . ii l. ne piscatores eod . k l. ne quid eod . & auth . naufragia . c. de furt . l m. cod. theodo . m l. si quis . c. de naufrag . lib . n vide l. de submersis . eod . o art. . leg . naval . rhod. p art. . eod . q art. . eod . r art . eod . a faber & alij inst . de rer . divis . sect . pen. b per l. pomponius . parag . fin . de acquir . rer . dom . c faber . d. parag . pen. d art. . & il. nava● . rhod. e dd . art . f auth. omnes peregrini communio de successionib . g oleron . h eod , i vide statu . regis alex. scot k l' admirall de france . l vide de off . adm. ang● . m per diplomata . n l. si is qui. . in fin . de acq . rer . dom . o l' admiral de france . & d. depl . p per dd . diplo . & de off . adm. a per l. pomponius de acq . rei dom . b per l. mulier . de cap. & post . c per d. l. pomponius , & per l. in bello . parag . si quis seruum in pr●ae capt . & post . d gen. . e deu. . f reg. , g c. dicat aliquis parag . . q. . &c. ius milita . re dist . . h l' admirall de france . i tom. . c. . ●●gist . scot. k per. l. postliminium . parag . postliminio . de . cap. & postlim . l per l. libertas . de reg . iur . m deut. . . n reg . . & chr. . . o ier. . . ezech. . . p vide an●hent . imo . c. ne filiu● pro patre . q vide bartol . latè de represal . r ● . . actor . s per gloss . in c episcopus . . dist . & dd. in c. si contra . &c. . de milite vasallo qui contumax . t per l. si quis in servitute . de furt . & l. ait praetor . parag . si debitorem . quae infraud . cred . a l. . in fin . de acq . rer . ●om . & parag ferae insti . de rer . divis . b l. iniuriorum . parag . fin . in fin . de iniur . iacob . . act . & iacob . . p. . cap. . c l. prascrip de usucap . d c. . & . de cler . venat . &c. . in cleric . & mon. e vide late . act . parl . scot. f vide statuta , & constit . & act . regū franc. angl. & scotiae . g vide statut . angl. & scot. & l' admir . de france . h iac. . parl . . cap. . i iac. . p. . c . iac. . p. . c. . m iac . p. . cap. n denmarke . nn vlpian in l. ne pifcatores de incend . ●ui . naufr . o vide l' admirall de franc. p vide forman his register . q mar. p. . c. ● r iacob . . p. . c. . s iac. p. . c. ● . t iac. . p. . c. u iac. . p . c. x iac. . p. . c. y iac. . p. . c. iac. p. . c. . z iac. . p. . c. ● . a iac. p. c. . b iac. . p. . c. . a genes . . . b eod . c. . v. . c eod c. . v . d eod . c. v. . e vlp. l qui neque . de reb eor . quisub ●utel . f l. pa●er . parag . duluss●●iè de leg . . g ad legem ▪ de rer . divis . g . officior . h pagina . i l. iniuriarum . parag . ult . & parag . si quis de in iur . k d. p●rag . si quis . l l. . de . rer . divis . m d. parag . si quis in fin . n d. l ● . de rer ▪ divis . o l. quod in littore . de aeq . rer . dom . p l. quamvis . de acq . rer dom . q l. prohibere . parag quod et si . quod vi aut elam . r l. roma . ad municipal . s psalme . t ad parag . littorum inst . de rer . divis . u pag. . x in l. possideri . de acquir . poss . psal. . . y pag. . z insect . nullius in tractat . de insula . * per l notionem de verb. sig. a gloss in c. ubi periculum . parag . porro . de electionib . lib. . b m l. si testamentum . de inst . & subst . c l. in ▪ finalibus . com . divid . d in l propon●ba●ur . de iud . e pag. . f pag. . g l. si quisquam divers & temp . praescrip . h pag. . i l. praescriptio de usu cap. k novell . const . . . & . l pag. . m off. . n pag. . o in l. iustitia . de rer . divis . p parag iuris praecepta . de iust . & iur . q l. nem● de reg . iur . & l. . de cond . indeb . & l. iu●e . de iure dot . r l. rescriptum de distract . pig . a tit. . b ferretus . c per. l. . de re militar . d per l. . eod . e per. l. . eod . f per l. . eod : a per l. . parag . si furt . advers . naut . b l. . & l. cum navarchorum . c. de navicul . lib & l. litica de public . c iac. . parl . . c. . d iac. parl . . c. . e l. . parag . naut . caupou . f vide act . iac. arl . c. . & arl . . c. . & ●ariae . parl . . ● . . g vide tit . naut . ● . up . & . tit . furt . ●●vers . * secund. l. . naut . caup . a tit. . b per diplom . admiralior . utriusque regni . c per t. t. ad l. aquil. d per l. . de naut 〈◊〉 . & per vegetium de re militar d vide sup . of the admirall clerke . e l. fin : c. de poen . f vide de off . adm. ang. g vide c. de m●n●p . & ibi . dd. h vide de off . adm. at the court at whitehall, the tenth of may, present the kings most excellent majesty ... england and wales. sovereign ( - : charles ii) approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a wing e estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : or : ) at the court at whitehall, the tenth of may, present the kings most excellent majesty ... england and wales. sovereign ( - : charles ii) charles ii, king of england, - . england and wales. privy council. p. printed by the assigns of john bill and christopher barker ..., [london] in the savoy : . caption title. imprint from colophon. an order dealing with maritime law. this item can be found at reels : and : . wing number c b (at reel position : ) cancelled in wing (cd-rom, ). reproduction of original in the huntington library. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the , texts created during phase of the project have been released into the public domain as of january . anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng maritime law -- england. great britain -- history -- charles ii, - . - tcp assigned for keying and markup - spi global keyed and coded from proquest page images - mona logarbo sampled and proofread - mona logarbo text and markup reviewed and edited - pfs batch review (qc) and xml conversion cr diev et mon droit honi soit qvi mal y pense royal blazon or coat of arms at the court at whitehall , the tenth of may , . present , the kings most excellent majesty . his highness prince rupert lord archbishop of canterbury lord keeper duke of lauderdaill duke of ormonde marquess of worcester lord chamberlain earl of bridgwater earl of essex earl of anglesey earl of bathe earl of carlisle earl of craven earl of arlington earl of shaftesbury viscount fauconberge viscount halifax lord bishop of london lord newport lord holles lord clifford mr. vice chamberlain mr. secretary trevor mr. chancellor of the dutchy master of the ordnance sir thomas osborne . it was ordered by his majesty in council , that an order this day read and approved as the board for dispensing for some time with certain clauses of several acts , concerning trade , shipping , and navigation , be forthwith printed and published . edw. walker . his majesty by and with the advice of his privy council is pleased to declare , and order , that an act of parliament , made in the parliament begun at westminster the five and twentieth day of april in the twelfth year of his majesties reign , and confirmed by the parliament , begun at westminster the eighth day of may in the thirteenth year of his majesties reign , reign , intituled , [ an act for encouraging and increasing of shipping and navigation ] and all the proceedings therein , or thereby directed , be totally suspended in all the matters and things therein contained , concerning or relating to any ships or vessels , their masters or mariners , their guns , furniture , tackle , ammunition , and apparel , or to any goods or commodities imported or exported to , or from norway , or the baltique sea. and his majesty doth further order , that the said act , and all the proceedings therein or thereby directed , be totally suspended in all the matters and things therein contained , concerning or relating to any ships or vessels , their masters or mariners , their guns , furniture , tackle , ammunition and apparel , or to any goods or commodities imported or exported to , or from any parts of germany , flanders , or france , whereof the merchants and owners shall be his majesties natural born subjects . and his majesty is graciously pleased to declare and grant , that not onely his majesties natural born subjects , but all merchants of any nation , may import from any ports whatsoever , hemp , pitch , tarr , masts , salt-peter , and copper , and upon importation thereof shall be liable to pay only such duties as by the act of tonnage and poundage are imposed upon his majesties natural born subjects and no other ; any thing in the said act to the contrary notwithstanding . and his majesty doth further order , that notwithstanding the said act for encouraging and increasing of shipping and navigation . and one other act made in the said parliament , begun at westminster the eighth day of may in the thirteenth year of his majesties reign , intituled , [ an act for the encouragement of trade ] or either of them , or any clause or clauses in them , or either of them to the contrary ; it shall and may be lawful for any english merchants , and they are hereby authorized freely and without interruption to make use of , and imploy any foreign ships , or vessels whatsoever , navigated by mariners , or seamen of any nation , for importing , or exporting of all goods and commodities , to or from any port in england or wales , or to or from any of his majesties plantations , they paying only the aforesaid duties imposed upon his majesties natural born subjects , as for goods exported in english-built bottoms , and no other . provided , that no goods or commodities whatsoever , be by them imported into any of his majesties said plantations , but what shall be without fraud , laden , and shipped in england or wales , and thence directly carried , and from no other place to his majesties said plantations . provided also , that such goods and commodities as shall be by them laden and taken on board at his majesties said plantations , or any of them , be brought directly from thence to some of his majesties said ports in england or wales ; and all governours and officers of the customs , are hereby charged , and required strictly to observe all rules , directions , and orders for taking of bonds or other securities , and exacting all forfeitures and penalties by the said acts , or either of them required or enjoyned , save only in the two clauses concerning english ships , and english mariners herein before dispensed with . and lastly his majesty doth declare , that this shall continue and be in force during his majesties pleasure : and when his majesty shall think fit to determine the dispensation hereby granted , he will by his royal proclamation give six moneths notice thereof , to the end no merchant or other person herein concerned may be surprized . lord keeper duke of lauderdaill duke of ormonde marquess of worcester lord chamberlain earl of bridgwater earl of essex earl of anglesey earl of bathe earl of carlisle earl of craven earl of arlington earl of shaftesbury viscount fauconberge viscount halifax lord newport lord holles lord clifford mr. vice-chamberlain mr. secretary trevor mr. chancellor of the dutchy sir thomas osborne edw. walker . in the savoy , printed by the assigns of john bill and christopher barker , printers to the kings most excellent majesty , . a proclamation appointing all passes to ships to be granted hereafter by the high-admiral, his deputes, judges and officers scotland. privy council. approx. kb of xml-encoded text transcribed from -bit group-iv tiff page image. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). b wing s estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. b ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) a proclamation appointing all passes to ships to be granted hereafter by the high-admiral, his deputes, judges and officers scotland. privy council. scotland. sovereign ( - : charles ii) sheet ([ ] p.) printed by the heir of andrew anderson, printer to his most sacred majesty, edinburgh : anno dom. . caption title. royal arms at head of text; initial letter. dated at end: given under our signet, at edinburgh, the sixth day of may, one thousand six hundred and eighty years; and of our reign the thirty two year. signed: will. paterson, cl. sti. concilij. reproduction of the original in the national library of scotland. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the , texts created during phase of the project have been released into the public domain as of january . anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng maritime law -- scotland -- early works to . foreign trade regulation -- scotland -- early works to . broadsides -- scotland -- th century. - tcp assigned for keying and markup - spi global keyed and coded from proquest page images - mona logarbo sampled and proofread - mona logarbo text and markup reviewed and edited - pfs batch review (qc) and xml conversion c r honi soit qvi mal y pense royal blazon or coat of arms a proclamation appointing all passes to ships to be granted hereafter by the high-admiral , his deputes , judges and officers . charles , by the grace of god , king of great britain , france and ireland , defender of the faith ; to our lyon king at arms , his brethren heraulds , macers of our privy council , pursevants , and messengers at arms , our sheriffs in that part , conjunctly and severally , specially constitute , greeting ; we having by our proclamation in the-year , for the security of the trade of our subjects of this our ancient kingdom , appointed that passes might be granted by some in the several districts therein-mentioned ; discharging all others ( except those therein appointed ) to grant passes to any ships within this our kingdom , and appointed a general surveyer for the whole kingdom , who was to receive his commission from our council : but now finding that these methods have proved ineffectual , and being fully informed that the granting of such passes and safe-conducts to ships , do of right appertain to the authority , power and priviledge of the admiral ; and that it is now the only undoubted right of our dearest and only brother , who is great admiral of this our ancient kingdom , and who by being lately here , has had occasion fully to know the concerns thereof : we have therefore , with advice of our privy council , thought fit to declare it to be our royal will and pleasure , that in all time coming , all passes to ships within this our ancient kingdom shall be granted by the high admiral of the same , his deputes and judges of the high-court of admiralty , and written , and sealed by the clerks of the said court , as formerly they were in use to be ; hereby evacuating all former passes , granted by any person whatsoever , and declaring them void and null in all time coming . and to the end that this our royal will and pleasure may be known and obeyed , we do hereby require and command all our subjects within this our ancient kingdom , to take passes for their ships when they go to sea , from the said high admiral , his deputes and judges of the said high-court of admiralty , and from none else , as they will be answerable to us upon their highest peril : having left it entirely to the care of our dearest brother , high admiral of this our ancient kingdom , ( who knows all the several treaties concluded betwixt us and our allies ; ) to give such directions from time to time to his deputes and officers of the admira'ty , as may be effectual for the securing the trade of our subjects , and for preventing all abuses and inconveniencies that may occur any time hereafter . our will is herefore , and we charge you strictly and command , that incontinent , these our letters seen , ye pass to the mercat-cross of edinburgh , peer and shore of leith , and to the several mercat-crosses of the head-burghs of this kingdom , and other places needful ; and there by open proclamation , make publication of our royal pleasure in the premises , that all our subjects may have notice thereof , and give obedience thereto , as they will be answerable on their highest peril . and we ordain copies hereof to be posted up in every custom-house , to direct persons concerned where and from whom passes to ships hereafter are to be had . and we ordain these presents to be printed . given under our signet , at edinburgh , the sixth day of may , one thousand six hundred and eighty years ; and of our reign the thirty two year . will. paterson , cl. sti. concilij . god save the king. edinbvrgh , printed by the heir of andrew anderson , printer to his most sacred majesty , anno dom. . at the court at whitehall the twenty sixth of march, present the kings most excellent majesty ... england and wales. sovereign ( - : charles ii) approx. kb of xml-encoded text transcribed from -bit group-iv tiff page image. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a wing e estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) at the court at whitehall the twenty sixth of march, present the kings most excellent majesty ... england and wales. sovereign ( - : charles ii) charles ii, king of england, - . england and wales. privy council. broadside. printed by the assigns of john bill, deceas'd, and by henry hills, and thomas newcomb, london : . an order dealing with merchandise stolen at sea. reproduction of original in the huntington library. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the , texts created during phase of the project have been released into the public domain as of january . anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng prize law -- great britain. maritime law -- great britain. - tcp assigned for keying and markup - spi global keyed and coded from proquest page images - megan marion sampled and proofread - megan marion text and markup reviewed and edited - pfs batch review (qc) and xml conversion royal blazon or coat of arms at the court at whitehall the twenty sixth of march . present the kings most excellent majesty , lord keeper lord president lord privy seal duke of ormond duke of beaufort earl of huntingdon earl of bridgewater earl of peterborrow earl of chesterfield earl of clarendon earl of craven earl of aylisbury earl of rochester mr. secretary jenkins mr. chancellour of the exchequer . his majesty being desirous that the treaties between him and the neighbouring princes and states , his allies , be duly observed and executed , and in no wise misconstrued in this juncture of time , is pleased to declare , that the clause in the latter end of the fifth article of his late royal proclamation , bearing date at newmarket the twelfth of this month , ( purporting , that the goods or merchandizes of his own subjects found in prize-ships brought up to his majestie ports , shall upon due proof , be taken out and restored to the true proprietors ) is to be understood , onely of the goods or merchandizes of his majesties subjects , taken in the ships of such of his allies , as being in war with others , have in the treaties now subsisting between his majesty and them , no such clause o● provision as makes free-goods to become unfree , when laden and take● in unfree ships ; but as to those of his majesties allies who by treaty with him have stipulated and agreed , that whatsoever goods or merchandize shall be found laden by his majesties subjects , upon any ship whatsoever belonging to those with whom such allies are in hostility , may be confiscated ; it is his majesties meaning , that the goods or merchandizes of his own subjects so taken and brought up into port , be not taken out of any prize-ship , or restored to the proprietors ; but be left in the power and possession of the captor , as well as the proper goods of those he is in hostility with , that shall be taken in the same ship ; and this his majesty commands to be strictly observed by his officers in the sea ports of his kingdoms and dominions , whom it may or shall in any way concern . phi. lloyd . london , printed by the assigns of john bill deceas'd : and by henry hills , and thomas newcomb , printers to the kings most excellent majesty . .