« PreviousContinue »
longing to such ship; and, in case of any delay in payment, for three days after distress, it shall be lawful for the receivers of the said duties to cause the same to be appraised by two persons, and to sell the said distress. .
This act and also the said former act shall be public acts. & Ann. The following act is concerning the light-house built on the island or rock called c. 17. 5. 4. Skerries, lying in the sea near Holyhead, in confirmation of letters patent granted to
William Trench, Esq. for building it, and recovers the same duties as the preceding one,
though all the others receive but half. s Geo. 2. All the powers and duties granted in letters patent, bearing date at Westminster the €, 36. 3 1. 13th of July, 13 Anne, to William Trench, Esq. deceased, for erecting a light-house
on the island or rock called Skerries, near Holyhead, in the county of Anglesea, shall have continuance for ever, subject to a proviso, as to the maintaining of the lighthouse in the letters patent contained, and to the trust in the act mentioned, and shall be vested in Sutton Morgan, clerk, who married the only surviving child of the
said William Trench. Sect. 2. The said Sutton Morgan, his heirs and assigns, may demand of masters and owners
of every ship or bottom passing, crossing, or sailing in or through St. George's chan. nel, by Holyhead or Wicklow, to or from any foreign port, or which shall pass or cross the said channel to or from any place in Great Britain, southward of Holyhead, from or to Wicklow, or any place northward thereof in Ireland, or that shall pass, cross, or sail from any place northward of Holyhead, and sail between Holyhead and the Calf of Man, or any way in St. George's Channel to the southward of Dublin ; and likewise from all coasters passing to or from any place in Great Britain, north of Holyhead, from or to any port, &c. south thereof, id. per ton coming into, and the like sum going out of, the said ports in Great Britain or Ireland, and double such duties for any
foreign ship. Sect. 3. Ships laden with coals in Great Britain, north of Liverpool, for Ireland, or the
greatest part of their lading being coals, and passing from Great Britain to Ireland, shall only pay one voyage in every year; the same to be paid the first voyage yearly, before
clearing out of the custom-houses, either in Great Britain or Ireland. Sect. 4. In consideration of the benefit the pacquet-boats sailing betwixt Holyhead and
Dublin receive by the said light-house, the post-master-general shall pay to the said
Sutton Morgan the annual sum of 501. without fee, quarterly. Sect, 5. If any person, having the command of any ship, shall refuse to pay the duties, it shall
be lawful for the said Sutton Morgan, his heirs, &c. to seize any goods of any master or owner of such ship, and to keep the same till the duties are paid : and, in case of delay in payment three days after such seizing, he may cause the same to be appraised
by two sworn appraisers, and afterwards sell the goods. Sect. 6. Nothing herein shall charge any of his Majesty's ships of war. Sect. 7. The said Sutton Morgan shall be freed from the payment of 51. per annum quit-rent,
reserved by the letters patent. Sect, 12. This act shall be a public act.
Little Cumray Light-House.
99 Geo. 2. By this act the trustees are empowered to erect a light-house on this island, at the
month of the river Clyde, and to fix such beacons, buoys, land or sea marks, on any place in the firth, as they shall think necessary for rendering the navigation more safe and convenient.
The master or owner of every vessel, bound outwardly on any foreign voyage, passing the light-house, to pay id. sterling per ton, and id. per ton passing inwards from
any foreign voyage to the northward, whether they pass by the middle passage between the islands of Cumray and Bute, or by the east side of Little Cumray, or between the islands of Bute and Arran, and whether they discharge in the Clyde or not: every foreign vessel to pay 2d. per ton, inwards and outwards; every vessel of 30 tons or upwards, trading to or from any part of Great Britain or Ireland only, to pay 2q. per ton every time they pass; and for every vessel of fifteen tons, under the same restriction, 2d. per ton per annum; the year to commence from June 24, and the payment for the current year to be made before clearing the port.
On refusal to pay the duties, the trustees have power to distrain any part of the tackle of the ship, and sell the same, returning the overplus.
There are also some light-houses erected for the service of private ports, as at Ilforde Combe, on St. Bee's Head near Whitehaven. And large lanthorns are ordered by the statute, to be set up on poles at the heads of some quays, such as at the harbour of Minehead, on the river Severn, &c. and duties are assigned for maintaining them. See 10 Anne, cap. 24.
The masters, wardens, and assistants of the Trinity House at Deptford Strond, may sea Marks. at their costs set up beacons, and marks for the sea, in such places near the coasts, or 8Eliz.c.13. forelands, as to them shall seem meet.
Sect. 3. No steeple, trees, or other things standing as sea marks, whereof to the owner or occupier of the place, where the same doth stand, before the 1st of March next, notice shall be given by the Queen's letters under her signet, shall, at any time hereafter, be taken or cut down, upon pain that every person, by whose consent such offence shall be committed, shall forfeit 1001. &c. and if the persons offending be not of the value, they shall be deemed convict of outlawry.
And no man may erect a light-house, beacon, &c. without lawful warrant and 3 Inst. 204. authority.
N. B.' the above-mentioned Trinity House is a kind of college at Deptford, belonging at first to a company or corporation of seamen only, with authority, by the King's char. ter, to take knowledge of those that destroy sea marks, &c. but now many gentry, and some nobility, are made members or elder brothers of that community.
OF LETTERS OF MARQUE AND REPRISAL.
Letters of marque or mart are extraordinary commissions granted by the Lords of the Sec Regu: Admiralty, or by the vice-admirals of any distant province, to the commanders of lations for merchant ships for reprisals, in order to make reparation for those damages they have letters of sustained, or the goods they have been despoiled of by strangers at sea. Or to cruise margues against and make prize of an enemy's ships or vessels, either at sea or in their harbours.c. 66. s. 14.
We may therefore distinguish two species of letters of marque, those which are see also special for the reparation of injuries sustained by individuals at sea, after all attempts 10 Hen. 6. to procure legal redress have failed; and those which are general, being issued by the i4 Hen. 6. government of one state against all the subjects of another, upon an open rupture c, 7. between them.
They seem to me always to be joined to those of reprise, for the reparation a private injury; but, when the hurt of an enemy is solely intended under a declared war, the former only are granted to privateers, as will be shewn in the subsequent chapter.
These commissions in the law, have other appellations besides reprisals or letters of Jure: Bella marque, as pignoratio, clarigatio, and androlepsia, and though by virtue of these et Pacis,
1. 3. c. 2. any capture they license becomes legal, yet private authority will not justify the pro- s. 4, 5.
de Jure Nat.
ceedings. as it only can be done by the power of that prince or state, whose subiect the injured person is, nor is the same grantable even by them, but where the suffering person has justice denied him, or illegally delayed.
A subject cannot for his own benefit make a reprisal without a proper commission, and, if he should do so even during war, the ship which he might capture would be a droit of admiralty and belong to the King or his grantee. i Bla. Com, 259. n. 8. Carth, 399. 2 Wood. 433.
This custom of reprisals is now become a law by the consent of nations, and has been generally confirmed by an article in almost every treaty of peace that has for a century
past been made in Europe, under its proper restrictions and limitations; as in that Molloy de concluded with Spain the 13th of May, 1667, (Art. 3.) that with France the 21st of
July, 1667, (Art. 16.) that with Holland of the same date, (Art. 31.) that with Len-; Sust. Inst. mark the lith of July, 1670, and almost all others made since; and it was constituted
by them, grounded, according to the great Justinian, on the urgency of human necessities, as without this great license would be given and tolerated for the committing of depredations and injuries, especially if only the goods of rulers were made liable, who seldom possess any thing that the injured can come at for satisfaction; whereas the effects of those private men, whose dealings in trade are various, may be seized for recompence, sometimes with the greatest ease, and freest from risque or danger.
And as the benefit of this obligation was common to all nations, they, which were at one time sufferers, would at another time be eased by it, and princes are not only accountable for public injuries, but in prudence should endeavour to prevent private ones, and, by setting the good example of protecting foreigners from wrongs, add strength to their just demands of redress, whenever their own subjects have occasion to
request it from them. Molloy de if therefore the injured party cannot obtain his definitive sentence or judgment, pes.s.', within a fit time, against the person of whom he complains, or if there be a judgment
given against apparent right and law, and no relief can be had from the iniquity of such a decree, the bodies and moveables of the prince's subjects, who render not right, may be apprehended and taken.
But in the prosecution of this there must be,
1. The oath of the party injured, or other sufficient proof, touching the pretended injury, and of the certain loss and damage thereby sustained.
2. A proof of the due prosecution for the obtaining satisfaction in a legal way.
5. Requisition of justice, by him, or them, made to the supreme head or state, where justice in the ordinary course was denied.
6. Persistence still in the denial of justice. Mag. Char. And all this preceding letters of reprisal, under such cautions, restrictions, and limi. 6.30, the tations, as are consonant to the law of nations, and subsisting treaties, and as the special clause case shall require, may issue not only by the jus gentium and civile, but by the ancient
and municipal laws of the kingdom. Molloy de The reprisals grantable by the laws of England are of two sorts, ordinary and extraJure Mar. . 29." 1. ordinary; the ordinary are either within or without the realm, and are always granted
to English merchants, who have suffered in their persons or effects, and have had their goods spoiled, or taken from them, beyond the sea, by merchants-strangers, and cannot upon suit, or the King's demanding justice for him, obtain redress; in such case
the injured person proving that he has prosecuted the offenders in a legal course, and 2 Wood. had justice delayed, or denied him, he shall have a writ out of chancery to arrest the
43. merchants-strangers of that nation, or their goods here in England, the which is granted
to the subject oppressed, not as a matter of favour, but of common right, by the Lord Chancellor or Keeper of England, who always in such case hath the approbation of the King or Council, or both, for his so doing.
The other ordinary reprisals, granted for reparation out of the realm, are always Molloy de under the great seal of England, and cannot be revoked or annulled; and the reason is, .: because the person injured hath petitioned, and hath according to law made out by proof his loss, and no regard having been paid to letters of request sent to the prince of the offender, nor reparation made; then the letters patent of reprisal, being sealed, immediately create and vest a national debt in the grantee, to be satisfied in such manner, and by such means, as the said letters patent do direct, out of the goods and estates of his subjects, who refuses or protelates doing right; but, though these letters patents are unrevocable, yet, if the supreme power thinks the execution of them cannot well be effected without endangering the peace of both states, this may justly cause their respite till a more proper occasion; for the statute of 4 Henry V. c. 7. does not restrain the King's prerogative and authority, which he had at the common law, in judging the conveniency and time when they shall be executed ; and as the King hath the legislative power of peace and war, in a public treaty for the nation's good, they may be notified and then revoked by the great seal, in pursuance of that treaty, and princes are always cautious in the framing and composing such letters patent, so as they may not be reckoned a breach of the peace, which the granting them (for particular satisfaction) in the ordinary way, does not amount to.
The extraordinary reprisals are by letters of marque, for reparation at sea, or any Molloy de place out of the realm, grantable by the secretaries of state, with the like approbation p.32. 5.To. of the King or Council, or both; but they are only during the King's pleasure, and to weaken the enemy during the time of war, and may, at any time, be revoked.
In the case of the King v. Carew, i Vern 54, 5. 2 Wood 440, it was held that a treaty of peace containing a clause against prejudice by letter of marque and reprisals, was a repeal of the letters of marque and reprisal.
But, before granting letters of marque, there gradually precede two or three letters Ditto, of request, and, according to the satisfaction, sufficient or insufficient, returned in Pos answer, commissions are awarded or denied; and the prince or state, whose subject the injured person is, should not value his misfortune at so low a rate, as to refuse him the former, for that would be to accumulate injuries, but should likewise, if justice be denied, after such request, arm him with power to take satisfaction by reprise, Vi, Manu, & Militari.
It appears that a request of satisfaction must be made as well to the aggressor, as to the sovereign power of the state to which he belongs, 2 Woodes 437.
Subjects cannot by force hinder the execution even of an unjust judgment, or Ditto, lawfully pursue their right by force, by reason of the efficacy of the power over them: P.33. s. 12. but foreigners have a right to compel, which yet they cannot use lawfully, so long as they may obtain satisfaction by judgment; though, if that ceases then reprisal is let in.
Judgment is obtained either in the ordinary course, by way of prosecution, or suit, Ditto,.. or appeal from the same, after sentence dgment given, to a higher court; or else in Poi the extraordinay way, which is by supplication, or petition, to the supreme power ; but we must understand that to be when the matter in controversy is, tam quoad merita quam quoad modum procedendi ; not doubtful; for, in doubtful matters, the presumption is ever for the judge or court.
But the reprisal must be grounded on wrong judgment given, in matters not doubtful, which might have been redressed in some shape, either by the ordinary or extraordinary power of the country or place, and the which was apparently perverted or denied: YOL. 1.
though, if the matter be doubtful, it is then otherwise ; for in cases dubious or difficult, there is a presumption always, that justice was truly administered by them who were
duly elected and appointed for that purpose. Paulus Leg. And yet, in this latter case, some are of opinion, if it was dubious, and, if the judg. Julia D. de Cond. inde ment was 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 foreigners as over subjects, for the motive or cause above-mentioned.
If an English merchant shall prosecute a suit in the ordinary courts of law beyond seas, and sentence or judgment shall pass against him, from which he appeals to the supreme court, and there the first judgment or sentence is confirmed, though the complaint hath received a judgment contrary to right and equity, yet this will be no cause for letters of reprisal, though, perhaps, it may occasion letters of request, if the cir. cumstance and reasons are strong for the same, to have a re-hearing.
But, if an Englishman shall have right to recover a debt there, and the debtor is coinmitted to the custody of an officer till payment, and he wilfully lets the prisoner escape, who then becomes insolvent, this circumstance may occasion letters of reprisal.
In England, if a foreigner bring an action personal against I. S. and the matter is found special or general, and the party prays judgment, and the court refuses it, and then the defendant dies, and with him the action, the nature of it being such, the party is here without remedy, and the same may occasion letters of reprisal, if it be accompanied with those circumstances that evince an apparent denial of justice, i. e. putting it off from term to term without cause.
An Englishman prosecutes 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, and the sentence or judgment is obtained: its ultimate end being execution, is,
by the aforc-mentioned means, frustrated, and may occasion letters of reprisal. Molloy de If any person shall be murdered, spoiled, or otherwise damaged, in hostile manner, Jure Mar. p. 34. s. 15. in the territories or places belonging to any king, to whom letters of request are issued
forth; and, if no satisfaction be made for the injury, letters of reprisal may be granted, as the petitioning parties are not in such cases compelled to resort to the ordinary prosecution ; but the prince of the 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 this country. Ditto.
Such letters of request generally allot a time certain for damages to be repaired, and, if not complied with, reprisals are to issue : thus, after the massacre at Amboyna, and other depredations commited by the Flemish on the English, his Majesty, 1625, issued forth his letters of request to the States of Holland, for satisfaction within eighteen months, otherwise letters of reprisal should be granted ; and King Charles 2. issued letters of request to the said States, for satisfaction to be granted to William Courten, Esq. for depredations made by their subjects on two of his ships; but, not obtaining it in the limited time, he granted to the partners and heirs of the said Courten his letters of marque, in the form following:
CHARLES II. by the grace of God, of England, Scotland, France, and Ireland, King, Defender of the Faith, &c. to all christian people to whom these presents shall come, greeting : whereas our loving subject William Courten, Esq. deceased, and his partners, Anno 1643, by the depredation and hostile act of one Gailand, commander in chief of two ships belonging to the East India Company of the Netherlands, was, between Goa and Macao, in the Strait of Malacca, deprived, and most injuriously spoiled of a certain ship named the Bona Esperanza, and of her tackling, apparel, and furniture, and all the goods and lading in her, upon a very hopeful trading voyage to China, which were