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ships Bona Eson the behalf of them arner, Knights, Geor the said William, der
carried to Batavia, and there all, de facto, without due process of law, confiscated. And that also in the same year, another laden ship of our said subject called the Henry Bonadventure, being come on ground near the Island Mauritius, was there, botlı ship and goods, seized upon by some of the officers and ministers, and others under the
command of the said East India Company, and utterly detained from the right owners. . And whereas the said William Courten, and his assigns in his life-time, used all possible
endeavours to recover the said ship and goods, and to procure further justice against the malefactors, and yet could obtain no restitution or satisfaction, whereby they became to be much distressed and utterly undone in their estates and credit: and that thereupon, and upon the most humble supplications and addresses of Francis Earl of Shrews. bury, and William Courten, Esq. grandchild and heir of the said William, deceased, Sir John Ayton, and Sir Edmund Turner, Knights, George Carew, and Charles Whit. aker, Esqrs. on the behalf of themselves and divers others, interested in the said two ships Bona Esperanza, and Henry Bonadventure, and in the estates of the said William Courten, deceased, Sir Richard Littleton, Baronet, and Sir Paul Pindar, Knight, deceased, that we would take their case into our princely consideration, we, out of a just sense we then had, and still have, of their unjust sufferings, in that business, both by our own letters under our sign manuel, to the States General of the United Provinces, and by Sir George Downing, Knight and Baronet, our envoy extraordinary, to whom we gave especial command so to do, required satisfaction to be made, according to the rules of justice, and the amity and good correspondence, which we then desired to conserve with them firm and inviolable; and whereas after several addresses made to the said States General by our said envoy, and nothing granted effectual for relief of our said subjects, whom we take ourselves in honour and justice concerned to see satisfied and repaid, we lately commanded the said Sir George Down. ing to intimate and signify to the said States that we expected their final answer, concerning satisfaction to be made for the said ship and goods, by a time then prefixed and since elapsed, that we might so govern ourselves thereupon, that our oppressed subjects might be relieved according to right and justice ; and yet no satisfactory answer has been given, so that we cannot but apprehend it to be not only a fruitless endeavour, but a prostituting of our honour and dignity, to make further application, after so many denials and slightings: and whereas John Exton, doctor of laws, judge of our High Admiralty Court of England, upon our command to certify to us the value of the losses and damages sustained by the said William Courten and partners, whose interest is now vested in our loving subjects Sir Edmund Turner, Knight, and George Carew, Esq. and partners, hath, upon full examination, and proof thereof made by witnesses in our High Court of Admiralty, reported and certified under his hand, that the same do amount to the sum of one hundred and fifty-one thousand six hundred and twelve pounds :
Now know ye, that, for a full restitution to be made to them, for their ships, goods, and merchandizes, of which the said William Courten, and the assigns of the said William Courten, and partners, were so despoiled as aforesaid, with all such costs and charges as they shall be at, for the recovery of the same, we, by the advice of our privy council, have thought fit, and by these presents do grant, license, and authorise, under our great seal of England, unto our said subjects, Sir Edmund Turner and George Carew, their executors, administrators, and assigns, for, and on behalf of themselves, and other persons interested as aforesaid, to equip, victual, furnish, and set to sea, from time to time, such, and so many ships and pinnaces, as they shall think fit; provided always, that there be an entry made and recorded in the Admiralty Court of the names of all ships and vessels, and of their burden and ammunition, and for how long time they are victualled, and also of the name of the commander thereof, before the same or any of them be set forth to sea; and with the ships and pinnaces, by force of arms, to set upon, take, and apprehend any of the ships, goods, monies, and merchandizes of the States General, or any of the subjects inhabiting within any of their domi. nions or territories, wheresoever the same shall be found, and not in any port or harbour in England or Ireland, unless it be the ships and goods of the parties who did the wrong. And the said ships and goods, monies, and merchandizes, being so taken, and brought into some port of our realms and dominions, an inventory thereof shall be taken, by authority of our Court of Admiralty, by the judge or judges thereof for the time being, and upon proof made before him or them, that the said ships, goods, wares, merchandizes, or money did belong to the States General, or any of their subjects, as aforesaid, they shall be judged lawful prize of the said Sir Edmund Turner and George Carew, their executors, administrators, and assigns, as aforesaid, to retain and keep in their, or any of their possessions, and to make sale, and dispose thereof in open market, or however else, to their, and every of their best advantage and benefit, in as ample manner as at any time heretofore hath been accustomed by way of reprisal, and to have and enjoy the same as lawful prize, and as their own proper goods : so that “ neither captain, master, nor any of the company, that shall serve in his own person, or shall promote and advance the said enterprise, in manner and form aforesaid, shall, in any manner or wise,' be reputed or challenged, for any offender against any of our laws. And that also it shall be lawful for all manner of persons, as well our subjects as any others, to buy the said ships, goods, and merchandizes, so taken and apprehended by the said captains, masters and others, and adjudged as aforesaid, without any damage, loss, bindrance, trouble, or molestation, or incumbrance, to befal the said buyers, or any of them, in as ample and lawful manner, as if the ships, goods, wares, and merchandizes, had been come, and gotten by the lawful traffic of merchants, or of just prizes in time of open war." Provided always, that all ships, goods, and merchandize, taken by virtue of this our commission, shall be kept in safety, and no part of them wasted, spoiled, or diminished, or the bulk thereof broken, until judgment hath first passed, as aforesaid, that they are the ships and merchandizes of the States General, or their subjects as aforesaid. And if by colour of this our commission, there shall be taken any ships, goods, or inerchandizes, of any of our loving subjects, or the subjects of any prince or state in good league or amity with us, except the States General, or their subjects as aforesaid, and the goods therein laden, sold, and embezzled, or diminished, or the bulk thereof broken, in any place before they shall be adjudged to belong to the States General, or some of their subjects, as aforesaid, then this commission shall be of no sufficient authority to take the said ships, goods, and merchandizes, or to warrant, or to save harmless, such as shall receive, buy, or intermeddle therein; but both the prizes so taken, and the said ship of war, shall be confiscated to our use. “ And further, we do hereby declare, that it is our will and pleasure, that this our commission shall remain in full force and power, to all intents and purposes, until the said Sir Edmund Turner and George Carew, their executors, administrators, and assigns, as aforesaid, shall, by virtue thereof, have, by force of arms, apprehended, taken, seized, recovered, and received, from the States General, or their subjects, one hundred and fifty-one thousand six hundred and twelve pounds, according to the appraisement to be made by sufficient appraisers, upon oath nominated and authorised in our said Court of Admiralty, of all such ships, goods, wares, and merchandizes, as shall be taken from the said States General, or any of their subjects, by virtue of this commis. sion, or shall otherwise receive satisfaction of the debt aforesaid, by composition to be made between those of the East India Company of the Netherlands, and the said Sir Edmund Turner and George Carew, their executors, administrators, and assigns, as aforesaid. Notwithstanding it so happen, the present difference between us and the States General depending upon general reprisals, may be agreed and composed, and that in the interim a peace and good correspondence may be renewed between us and the said States General.* In which case, nevertheless, it is our will and pleasure that in the execution if this our commission no violence shall be done to the persons of the said subjects of the said States General, but only in case of resistance; and that after, in cold blood, the subjects of the said States General, if hurt or wounded, shall be used with all convenient offices of humanity and kindness. And further, our will and pleasure is, that although it shall happen, that all hostility between us and the States General, and our respective subjects shall cease, yet this our commission shall be and remain in full force and power to the said Sir Edmund Turner and George Carew, their executors, administrators, and assigns, as aforesaid, by virtue thereof, to apprehend, take, and seize, by force and arms, so many more of the said ships and goods of the States General, or any of their said subjects, as, besides the said sums before-mentioned, shall countervail, satisfy, and pay all such costs and charges, as the said Sir Edmund Turner and George Carew, their executors, administrators, or assigns, as aforesaid, shall, from time to time, make proof to have disbursed and paid towards the equipping, manning, paying, furnishing, and victualling of the said ships, so licensed and authorised as aforesaid, by this our said commission, to be equipped, manned, furnished, and victualled, by the said Sir Edmund Turner and George Carew, their executors, administrators, and assigns as aforesaid, for the purposes aforesaid.” And our will and pleasure is, and we do hereby require our judge or judges of our High Court of Admiralty, for the time being, and all other officers of the admiralty, and all other judge or judges, officers, ministers, and subjects whatsoever, to be ajding and assisting to the said Sir Edmund Turner and George Carew, their executors, administrators, and assigns, as aforesaid, in all points in the due execution of this our royal commission, and to proceed to adjudications, and adjudge all ships, merchandizes, monies, and goods, by virtue thereof to be taken, according to our princely intention hereby signified and favourably interpreted and construed, in all respects, to the benefit and best advantage of the said Sir Edmund Turner and George Carew, their executors, administrators, and assigns, as aforesaid. In witness whereof, we have caused these our letters to be made patent. Witness ourself at Westminster, the 19th day of May, in the seventeenth, year of our reign.
By the King.
P. 40. S. 16.
It is not the place of any man's nativity, but that of his domicil and abode, not of his Molloy de
Jure Mar. origination, but of his habitation, that subjects him to reprise; the law doth not so: much consider where he was born, as where he lives; therefore if letters of reprisal should be awarded against the subjects of the Grand Duke of Tuscany, and a native of Florence, but denizened or naturalized in England, should have a ship, in a voyage to Leghorn, taken, the capture is not lawful, 'nor can she be made a: prize. Yet, by the laws of England, a natural-born subject cannot divest himself of his allegiance, though he happens to be commorant, or a dweller in the enemy's country. .
It does not appear from any precedents, that reprisals can be granted on misfortunes Ditto, happening to persons on their goods, residing or being in foreign parts in time of war P: 41. there ; for, if any misfortune happens, or is occasioned to their effects, or to their persons, they must contentedly sit down under their loss; it being their own fault that they would not fly or quit the place, when they foresaw the country was exposed, or would be subject, to the spoil of soldiers and devastations of the enemy. By right, there are many persons exempted, and those whose persons are so privi- Ditto
p. 41. se!8.
leged have also protection for their goods, some by the law of nations, some by the civil law, others by the common law; among which the ambassadors, by the laws of nations, their retinue and goods, are exempt, coming from him who awarded reprise ; the law of nations not only provides for the dignity of him that sends, but also the secure going and coming of him that is sent. .
Travellers through a country, whose stay is but short, and a merchant of another place than that against which reprisals are granted, although the factor of his goods was of that
place, are not subject to reprisals. Molloy de When ships are driven into port by storm or stress of weather, they have an exemption Jure Mar, p. 42. s. 19. from the law of reprisals, according to the jus commune, though by the law of England,
it is otherwise, unless expressly provided for in the writ or commission ; but, if such ships fly from their own country to avoid confiscation, or for some other fault, and are driven in by stress of weather, they may, in such case become subject to the prize; though it is unlawful to make seizure in any ports for reprisals, but in that prince's who awarded them, or in his against whom the same is issued; for the ports of other princes or states are sacred, and the peace of them not to be violated or disturbed, but justly
to be observed and maintained. Grot. d Jure Belli,
If any ship, carrying letters of reprise, attacks a vessel, and she refuses to yield, she lib. 3. c.2. may be assaulted and entered ; and, if it falls out, though by accident, that some of 9. 4.
those who resist are slain, the fault will lie at their own doors, for endeavouring to hinder the execution of what is right, and which the law both approves and warrants.
If a ship carries letters of marque and is insured as a private trader only, the insurance
is void. 5 Term. Rep. 580. Marshall on Ins. 194. Greg.lib.9. By the law of nations, ipso faeto, the dominion of the things taken by those to whom
letters of marque are granted become the captor's, till the debt and costs, that is, the original damage, 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: they did not spoil any of the lading, but preserved the same very carefully till the debt was paid, which done, an entire restitution of the things was made, without any diminution.
As to the property acquired by the capture, see Grotius De Jur. Bel. 1. 3. C. 2. s. 7. 2 Wooddes 438, 449. i Wil. 211, 229.
When, perhaps, for the fault of a few a debt becomes national, by reason of which the goods of the innocent become liable, if taken, for satisfaction in such case the person so suffering is entitled to contribution for his relief, being put to the whole burthen, where more are bound to the same thing.
There appears also to be an obligation on the government and individuals, who refuse
the satisfaction to reimburse the person upon whom the reprisal is made. Molloy de Yet, when depredations have happened to foreign merchants, our kings, on comJure Mar. p. 46. s. 28. plaint, have often issued commissions to inquire of the same; and it was so done upon
the petition of some Genoese merchants, who complained against the inhabitants of the Pat.. isle of Guernsey, for a depredation in taking away and detaining their merchandize 26 Edw. 3.
and goods to a very great value, out of a ship wrecked by tempest near that isle, and the commissioners were empowered to punish the offenders, and to make restitution and
satisfaction for the damages. Pat. de An. The like complaint was made by the merchants of the Duke of Bretagne, of certain 6. H, V.
depredations committed by the subjects of the King of England, who issued forth the like commission to give them reparation and damages for the same; so that if the subjects of the King of England should have their goods taken by way of
reprise for the satisfaction of such debt or damage, they may have the benefit of the like commissions, to make themselves whole out of the estates of the offenders.
OF PRIVATEERS OR CAPERS.
PRIVATEERS and capers are synonimous terms for the same thing, with this only dif. See Regnference, that the latter are smaller vessels than the others; they are generally esteemed 33 Giers. 3. private ships of war, fitted out by particulars in order to annoy tlre enemy, though the c. 56. commission is neither lasting nor so honourable as that given to the commander of a 29 Gen. . king's ship, the one being certain, and continued whilst his behaviour is unexcep- 4. 34. tionable, the other only temporary and occasional; the one appointed by his Majesty, c. 67. * * the other by a subject, with the prince's approbation, and liable to be turned out at Molloy.
c. 3, s. 8. the owner's pleasure; and, though such appointments are ancient, and very useful in i Bla. Com. a war, by distressing the enemy, yet many esteem the action but one remove from 259, n. 8. piracy; as the undertakers are supposed to have no immediate injury done them, nor have any other motive but the hopes of gain, to animate them to the engagement, or to induce their commencing a trade of rapine and spoil on the persons and goods of innocent traders; and, by these means, to increase the horrors and calamities which war naturally brings with it, and inspires; but whosoever reflects, that every individual is injured, when the nation in general is so; and that, if this has a right to vindicate or revenge its wrongs, particulars must be justified in affording their assistance; we must conclude that, in so doing, they only comply as good subjects, whilst their proceedings remain directed by authority, and their successes against the enemy are managed with that humanity our own natures and the law of nations enjoin.
However, leaving these disputes to be determined by casuists, I shall proceed to inform my reader of the nature and power of such armed vessels, and on what footing they have generally been fitted out in the late and former wars; and this has been under two different and distinct commissions, as will hereafter be shewn.
· The one of them is customarily granted to the petitioners for it, after they, at theič own expence, have fitted out a privateer; and empowers them to appropriate to their own use whatever prize they make, after a legal condemnation, and the government: allows them besides 51.* for every man aboard a man of war or privateer taken or destroyed at the beginning of the engagement, and 101.t for every gun she had mounted, with liberty of cruising where they please; and in case we are at war with more potentates than one, as lately with the French and Spaniards, they must have commissions for acting against them both, otherwise a captain carrying only one against the Spaniards, and in his course meets with and takes a Frenchman, this prize is not good, but would be taken from him by any man of war he met, and could not be condemned, for him, in the admiralty, as many experienced in the late war. .
The prize acts passed at the commencement of a war usually provide that ships, and goods taken from the enemy, whether by king's ships or privateers shall be first condemned before any solid right is vested in the captors. 2 Wooddes 449.
It has been held however that this right if it may be so called, is assignable at law. See the case of Morrough v. Corryns. 1 Wils. 211. Though equity will interfere to relieve against an unprovident contract for the assignment of it. See Baldwin and Rochford. i Wilson 229.
* 13 and 17 Geo. 2..
+ 4 and 5 Will. and Mar.