De jure maritimo et navali, or, A treatise of affairs maritime and of commerce in three books / by Charles Molloy.

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 Part∣ners 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 Own∣ers, and where not.
• XI. Where he that obtains an un∣lawful 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 ex∣amine 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 after∣wards 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 won∣der at this day to find Nations contending who should surpass each other in the Art of Navigation, and to Mo∣nopolize 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 be∣ing * 1.1 originally invented for use and profit, not for plea∣sure 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 Voy∣age, 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 * 1.2 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 * 1.3 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 sun∣der and discharge their parts.

If it falls out that one is so obstinate that his consent * 1.4 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 * 1.5 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 * 1.6 Owners refuse to set out the Vessel to Sea, there by rea∣son 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 * 1.7 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 Ves∣sel. 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 † 1.8 to answer for all damage that shall be sustained by him or his Marriners, * 1.9 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 * 1.10 of England, as the Law Mari∣time. † 1.11

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 † 1.12 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 joyn∣ing with the other.

VI. If a Ship be borke up or taken in pieces, with an * 1.13 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, * 1.14 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 o∣ther * 1.15 Materialls belonging to another, yet the Ship main∣taines 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 * 1.16 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 * 1.17 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, fur∣niture, apparel, and all other her instruments thereunto * 1.18 belonging, yet by those words the Ships boat is not con∣veyed, 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. * 1.19

IX. If a Ship commits Piracy by reason of which, she be∣comes * 1.20 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 * 1.21 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 * 1.22 the satisfaction of the Creditor; for it were very unreason∣able 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 bor∣rowed was necessary for the repair of the Ship, and there∣fore * 1.23 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. * 1.24

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 Ship∣ping is the imployment thereof.

XII. A Ship is Freighted out, accordingly she receives * 1.25 in her lading pursuant to agreement, afterwards an Em∣bargo 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 be∣ginnings of those stupendious things we now admire) advanced the Art to that degree, as to render it now the most usefullest thing ex∣tant; and as the Mathematiques, Astronomy, and other Sciences hath added to its security, so hath succeeding Ages from time to time provided Priviledges and Laws by which it hath alwayes been regulated and governed, the which upon all occasions, and in all Courts hath generally had a genuine construction as near as might be to the Marine Customes; and therefore at this day if a Ship be taken away or the Owners dispossest, they may maintain an Action of Trover and Conversion for 8th or 16th part of the same, as well by the Common Laws of this Kingdome, as the Law Maritime.

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

• I. A Master or Skipper his Condi∣tion considered in reference to his Interest and Authority general∣ly.
• 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 dis∣abled.
• VII. Of shipping of Goods else∣where then at the publique Ports or Keyes, and of taking in pro∣hibited Goods.
• VIII. Of wearing unlawful Co∣lours or Flaggs; and of yield∣ing up his Ship Cowardly if as∣saulted, where lyable, and where excused.
• IX. Of carrying fictitious Coc∣quets and Papers, and refusing payment of Customes and Du∣ties.
• X. Of setting Sayl with insufficient Tackle, and of taking in and de∣livering 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 Ma∣sters and Skippers at Sea.
• XIII. Rules in Law in the Char∣ging him for Reparation of Da∣mage.
• 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 Marri∣ners 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 provi∣ded.
• XXII. Of Goods prohibited to be imported from Netherlands or Germany in any Ships whatso∣ever.

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 proper∣ties * 1.26 are to be guided, he hath no property either general or special, by the constituting of him a Master; yet the Law * 1.27 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 satis∣faction, 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 Comi∣tatus, the Common Law shall have Jurisdiction to an∣swer the party damnified and not the Admiralty, * 1.28 but if * 1.29 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, accord∣ing to the resolution given.

And therefore so soon as Merchandises and other Com∣modities are put aboard the Ship, whether she be riding in Port, Haven, or any other part of the Seas, he that is Exer∣citer Navis is chargeable therewith; and if the same be * 1.30 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 Exer∣citor Navis must answer the damage, for that the very lading of the goods aboard the Ship does Subject the Ma∣ster to answer the same; and with this agrees the Com∣mon 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, Whe∣ther 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-Ma∣sters and by force robb'd the Ship, and that the same was vis major, * 1.31 and that he could not have prevented the same; And lastly, That though he was called Master or Ex∣ercitor navis, yet he had no share in the Ship, and was but * 1.32 in the nature of a Servant acting for a Salary. But not∣withstanding 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 * 1.33 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 * 1.34 be lost, he shall likewise answer both by the Maritime Law arrow_forward and the Common Law.

III. If Goods are laden a board, and after an Embargo * 1.35 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; † 1.36 Nor must he stay in Port or Harbour with∣out 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 * 1.37 aboard any of the Kings Enemies Ships, (admitting his own Vessel leaky or disabled) without Letters of safe * 1.38 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 other∣wise * 1.39 he forfeits to the King all the Merchandize, and therefore must answer.

VII. Nor ought he to ship any Merchandize, but * 1.40 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 Confisca∣tion, * 1.41 or at least subject to seizure or surreption.

He may not set sayl without able and sufficient Marri∣ners both for quality and number.

VIII. He may not use any unlawful Colours, En∣signs, Pendants, Jacks or Flaggs, * 1.42 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 im∣bezled, 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 * 1.43 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 * 1.44 her men, and then rob her, yet the Master must be responsible; but if an Enemy enter and commit the de∣pridation, there the Master is excused.

IX. He must not carry any counterfeit Cocquets or other fictitious and colourable Ship Papers to involve the * 1.45 Goods of the Innocent with the Nocent. * 1.46

Nor must he refuse the payment of the just and Ordi∣nary * 1.47 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 excu∣sed.

X. He must not set Sail with insufficient Rigging or * 1.48 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. * 1.49

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 * 1.50 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 * 1.51 him or his Marriners, whereby the Merchant or the La∣ding 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 * 1.52 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 no∣toriously known to be unsafe, nor engage his Vessel among

Rocks or remarkable Sands, being thereto not necessitated * 1.53 by violence of Wind and Weather, or deluded by false lights.

XIII. By the arrow_back maritime Law arrow_forward , he that will charge a Ma∣ster 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 hap∣pened 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; * 1.54 And therefore as the whole Care and Charge of Ship and Goods are com∣mitted 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 da∣mage, or what ever other act he shall do in reference to his Imploy: And therefore he can freight out the Ves∣sel, take in Goods and Passengers, mend and furnish the Ship, and to that effect if need be in a strange Coun∣trey he may borrow Money with advice of his Marri∣ners, upon some of the Tackle, or sell some of the Mer∣chandize. If part of the Goods shall be sold in such ne∣cessity, the highest price that the remainder are sold for must be answered and paid to the Merchant; after which the Merchant must pay for the Freight of those Goods as well as for the remainder, Leg. Oleron 1. But if the Ship in the Voyage happens to be cast away, then onely shall be tendred the price that the Goods were bought for.

By the Common Law the Master of a Ship could not impawn the Ship or Goods for no property either ge∣neral 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 im∣ploying the money to that end; and therefore he being the person trusted with the Ship and Voyage, may there∣fore reasonably be thought to have that power given to * 1.55 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 com∣pleating of the Voyage.

Nor can he sell or dispose of the same without an au∣thority or Licence from the Owners; and when he does Impawn or Hipothycate the Vessel or Furniture, he * 1.56 ought to have the consent and advice of his Marri∣ners.

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 en∣gage 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 * 1.57 and the Owners are to joyn in the laying in of the pro∣visions for the Voyage, and parhaps he wants money, (a great sign of necessity) yet can he not impawn the Vessel or Furniture, any other or further then for his own part or share in her, the which he may transfer and grant as a man may do an 8th or 5th part in Lands or Houses: But such obligation of the Vessel must be in forreign parts or places where the calamity or necessity is universal on the Vessell.

XVI. If the Vessel happens afterwards to be wreckt

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 Sal∣vage, * 1.58 then their reward is sunk and lost with the Vessel.

But if there be any considerable part of the lading pre∣served, 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 con∣veniently * 1.59 raise moneys on, rather then see the whole Voy∣age 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 * 1.60 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 Terri∣tory. The Master and 3 fourths of the Marriners to be English, upon forfeiture of Ship and Goods. And if otherwise, they are to be look't upon as Prize, and may be seized by any of the Kings Officers and Commanders, and to be divided as Prizes, according to the Orders and Rules of the Sea.

All Goods of the Growth of his Majesties Plantations are not to be imported into England, Ireland, or Wales, Islands of Jersey or Guernsey, but in such Vessels as truly belong to Owners that are of England, Ireland, Wales, Jersey or Guernsey, and three fourths at least of the Marriners are to be English, upon forfeiture of Ship and * 1.61 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 * 1.62 and 3 fourths to be English.

All Owners must swear that their Vessels or Ships are their own proper Ships and Vessels, and that no For∣reigner has any share or part in her, and must enter the same, and that she was bought for a valuable consi∣deration, 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 forfei∣ture 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 im∣ported in English Ships 3 fourths English Marriners: So * 1.63 likewise those Ships that are for India in any of those Seas to the Southward and Eastward of Cabo bona Speranza, although the Ports are not the places of their very growth.

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

But Sugars, Tobacco, Cottens, Ginger, Indicoes, Fu∣stick, or any other dying Wood of the growth of his Ma∣jesties Plantations, are to be Shipped, carryed or convey∣ed 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 for∣feiture of Ship and goods, and the Master is to give bond with one Security in a Thousand pound if the Ship be under the burden of a 100 Tuns, and 2000 l. if above, that upon Lading he brings his Ship directly into Eng∣land, 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 * 1.64 shall not be above 3. dayes coming from thence to the place of discharge; nor is not to touch at any Key or Wharfe till he comes to Chesters Key, unless hindred by contrary Winds, or draught of Water, or other just im∣pediment to be allowed by the Officers; And like∣wise 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 con∣dition of the Port requires, and make Entries, on pain of 100 l.

Nor is such Master to lade aboard any Goods outwards to any place whatsoever, without Entring the Ship at the * 1.65 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, toge∣ther with the marks and numbers of such Goods, and be sworn as to the same, on pain of 100 l.

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

Note. There is a List of all Forraign built Ships in the Exchequer, and that no Forraign Ship not built in any of his Majesties Dominions of Asia, Affrica, or America, after 1. Octob. 1662. and expressly named in the List, shall enjoy the Priviledges of a Ship belonging to England or Ireland, although owned and manned by English, ex∣cept onely such as are taken by way of reprize and con∣demnation 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 with∣in 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 de∣signed for, and to return a Certificate from the chief Offi∣cers of that port where the same was designed for, and discharged within 6 months from the date of the Cock∣quet.

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 man∣ner 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 ex∣quisite 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 pub∣lique as well as private may not onely be of some ad∣vantage to them, but likewise to Merchants, who al∣wayes 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 au∣thority 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 re∣quisite 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 ly∣able 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 acti∣ons of his Marriners.
• XV. Of Goods purloyned before they are brought a Shipboard, where the Master is bound to an∣swer, and where not.
• XVI. Of the Antiquity of such Custome.
• XVII. Of Goods brought secret∣ly in a Shipboard if purloyned, where the Master is not made ly∣able.
• XVIII. Of Caution or fore∣warning, 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 * 1.66 Master, known to us and by most Nations both now and of old, and especially by the Roman Lawes, Na∣vicularius, or Magister Navis; in English rendred Master, or Exercitor Navis; in the Tutonique, Skipper; by the Gre∣cians,

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. * 1.67

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, sirna∣med Calaphates, who denied not to own the quality of his * 1.68 Father among his Regal Titles. The very name Cala∣phate, 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 Bra∣chierie; by the Grecians and Romans, Garabita, from Cara∣bus, 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 re∣ceived 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 * 1.69 obligation on him by Law for the same; his duty is to un∣lade by day, not night.

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

The 8th is the Ships Boy, who keeps her continually in Harbours, called of old by the Grecians, Nauphylakes; by the Italians, Guardiano: These persons are distinct in offices and names, and are likewise distinguished in their hyres and wages; The rest of the Crew are under the common name of Marriners, by the Romans called

Nautas; But the Tarpollians, or those Youths or Boyes * 1.70 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 * 1.71 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 ship∣board, he may refund the damage out of his wages, but * 1.72 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 ac∣coutriments being impotent, if the Marriners happen to be drowned, the Master is to repay one whole years hyre to the Heirs of the drowned: Therefore Masters ought carefully to view and see that the Boat be fit for men to trust their lives in upon his command.

If a Marriner shall commit a fault, and the Master shall lift up the Towell 3. times before any Marriner, and he shall not submit, the Master at the next place of land may discharge him; and if he refuses to go ashoare, he shall lose half his wages, and all his Goods within the Ship: If the Marriner shall submit, and the Master will * 1.73 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 * 1.74 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 constant∣ly 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, * 1.75 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 Ancho∣red * 1.76 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; * 1.77 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 * 1.78 swearing that it was done for the preservation of the Vessel and the rest of the Lading, the same shall dis∣charge 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 sub∣jects * 1.79 the Marriner's hand to be cut off, unless he redeems at 5. Solz.

VII. If a Ship happens to be seized on for Debt or otherwise to become forteited, the Marriners must re∣ceive * 1.80 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 * 1.81 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 * 1.82: 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 sug∣gestion that the Contract was made at Land, and not super altum mare: The Court denyed it, for that he * 1.83 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 Pro∣hibition 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 Car∣penters work and such like labour aboard a Ship in a * 1.84 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 Com∣mon

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 pro∣visions 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 * 1.85 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 Mer∣chants, and the Master out of the wages of the Marri∣ners; 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 * 1.86 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 * 1.87 due Correction to his Marriners, and if they bring an Action against him, he may justifie the same at the Com∣mon Law; and by the Law of Oleron, if a Marriner shall assault the Master, he is to pay 5. Solz, or lose his * 1.88 hand.

Marriners after they have unladed the Ship, if they de∣mand their wages, and there be any intention of their * 1.89 departure, the Master may detain a reasonable proportion of the same till they bring back the Ship, or give cau∣tion to serve out the whole Voyage.

XIII. Barratry of the Marriners is a Disease so Epi∣demical 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 * 1.90 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 un∣der * 1.91 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 * 1.92 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 Com∣mon 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 be∣comes * 1.93 immediately responsible if they steal, lose, dam∣nifie 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 imbezle∣ment by his Marriners of 22 pieces of Gold, Bowe, Sheaf of Arrowes, Sword, and other things; And ad∣judged 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 * 1.94 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 & {pro}cessus loquelle que fuit coram no∣bis in Cur̄ Domini Regis ibm sine braevi inter Henr̄ Pilk & Iurdanum Uenere Magistrum navis voc̄ la Graciane de Bayone in plito transgress̄ {pro}ut {per} 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 {pro}x post Festum Epiphaniae Domini anno Regni Regis nunc 24. Henr̄ Pilk quer̄ opt. se. versus Iurdanum Uenore Magi∣strum navis vocat̄ la Graciane de Bayone de plito transgress̄ {per} pl &c. & unde quer̄, quod secundum le∣gem & consuetudinem de OLERON unusquis{que} Ma∣gister navis tenetur respondere de quacun{que} transgr̄ {per} servientes suos in eadem fact, & Ioh̄es de Rule & Fartolet de Fornes Servientes p̄dicti Iurdani Magi∣steri navis p̄dicte die Mercur̄ {pro}x' ante Festum Omnium Sanctorum Anno Regui p̄dicti Regis Ed. 23. in Mari iuxta Britan: in eadem navi de Iohanne de Cornub̄

servient̄ p̄dict̄ Henr̄ 22. libt̄ in auro arcus Sagit glad. & al bona & catalla ad valenc̄ 40 l. ceperunt & asporta∣verunt injuste &c. ad dampnum p̄dict̄ Henr̄ 60 l. & si p̄dictus Iurdanus hoc velit dedicere p̄dict̄ Henr̄ para∣tus est verificare &c. Et p̄dictus Iurdanus venit & di∣cit qd lex de Oleron talis est qd si aliqua bona & ca∣talla Magistro alicujus navis liberata sunt custodiend, unde idem Magister {pro} eisdem vel {pro} aliqua alia re in eadem navi facta manucap̄ illo modo Magr̄ navis te∣netur respondere, non alio modo, Et su{per} hoc petit Iudicium, Et p̄dict Henr̄ dicit qd unusquis{que} Magister navis tenetur respondere d^oe quacun{que} transgressione {per} servientes suos in navi sua fact, & petit Iudicium simlr̄. Et su{per} hoc p̄dicte {per}tes habent diem hic die Sabati {pro}x̄ post Festum sc̄i Hillarij {pro}x̄. futur̄ ad audiend judicium suum &c. Ad quem diem pdicte {per}tes venerunt & pe∣tierunt Iudicium suum &c. Et recitat. Recordo & pro∣cessu p̄dictis in plena Curia Coram Majore & Balli∣vis & alijs probis hominibus Uille & Magistris & Ma∣rinarijs, visum fuit Curie, quod unusquis{que} Magister navis tenetur respondere de quacun{que} transgressione {per} servientes suos in navi sua facta, Ideo consideratum * 1.95 est, quod p̄dict Henr̄ recuperet dampna sua 40 l. vsus p̄dict Iurdanum {per} 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 be∣ing * 1.96 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 Passen∣ger * 1.97 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-come∣ing; The Master is not there held responsible in case * 1.98 of a loss, especially if there be any thing of an agree∣ment thereunto.

XIX. But if Goods shall be sent aboard a Ship, * 1.99 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. * 1.100

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 Freight∣ing.
• III. How the same is governed upon the various Contracts, and of Accidents happening to Ma∣sters 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 Tra∣ding Voyages, and lost by con∣tingent actions, considered by the Common Law, and the Law Maritime.
• VII. Of Freight becoming due upon the various wayes of Con∣tract, 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 ari∣sing 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 Con∣cerns.
• 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 ar∣rival at a Port; Ship is cast away, the Goods saved: whe∣ther 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 there∣of.

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, an∣other to be an under Freighter.

II. There was of old another way of Freighting, which was when the Merchant agreed with the Master * 1.101 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, * 1.102 and varies according to the agreement, reduced gene∣rally 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 * 1.103 and the Merchant, or between them all.

The Master or Owners generally Covenant to pro∣vide 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, * 1.104 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 damni∣fied * 1.105 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 com∣pleat 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 other∣wise 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 * 1.106 Merchant may ship aboard in another Vessel the remain∣der 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 * 1.107 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 an∣swer * 1.108 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 * 1.109 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 * 1.110 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 after∣wards * 1.111 resolves not on the adventure, but will unlade again; by the Law Maritime the Freight seems deser∣ved.

But if the Ship in her Voyage becomes unable with∣out the Masters fault, or that the Master or Ship be Ar∣rested * 1.112 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 * 1.113 the Freight becomes due for so much as the Ship hath earned: For otherwise the Master is lyable for all da∣mage 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 dis∣charged.

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 suf∣ficient.

V. If a set time be fixed and agreed upon between the Merchant and the Master wherein to begin and * 1.114 finish his Voyage, it may not be altred by the su∣pra Cargo without special Commission for that pur∣pose.

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 misfor∣tune.

If it is agreed that the Master shall sayl from London * 1.115 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 * 1.116 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 Voy∣age, 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, * 1.117 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 per∣formed.

But by the Civil Law this is vis major, or casus for∣tuitus, there being no default in the Master or his Mar∣riners, and the same is a danger or peril of the Sea, which if not in Navall Agreements exprest, yet is na∣turally implyed: For most certain had those goods

which the Pyrats carried away in stress of weather, Na∣vis levandae causa, been thrown over-board, the same * 1.118 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 Ene∣my shall no wayes work a wrong in actions pri∣vate.

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 * 1.119 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 agree∣ment 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 Wo∣men, 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 * 1.120 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 Voy∣ages.

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 5. Tun more or less, as the moiety of the number Ten, whereof the whole number is com∣pounded.

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 un∣lawful * 1.121 Commodities, occasions a detention, or other∣wise impedes the Ships Voyage, he shall answer the Freight contracted and agreed for.

If a Ship be Freighted out and in, there arises due * 1.122 for Freight nothing till the whole Voyage be perform∣ed. So that if the Ship dye or is cast away coming home, the Freight outwards as well as inwards be∣comes lost.

IX. If a Master Freights out his Ship, and afterwards * 1.123 secretly takes in other Goods unknown to the first La∣ders, 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 Ma∣ster 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 * 1.124 Pyrats, he then must sayl to the Port conditioned at his own costs.

Generally the touching at several Ports by agree∣ment, 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 distri∣buted * 1.125 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 * 1.126 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 re∣main as it were bayled for the same: nor can they be At∣tached in the Masters hands (though vulgarly is concei∣ved otherwise.)

Ships deserve wages like unto a Labourer, and there∣fore in the eye of the Law the actions touching the same are generally construed favourably for the Ship and her Owners: And therefore if 4. part Owners of 5. shall make up their Accounts with the Freighters and * 1.127 receive their proportions, yet the fifth man may sue sin∣gly 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 * 1.128 out of the Owners, yet by the Law of Warr that posses∣sion was defeazeable, and being recovered in Battel af∣terward, the Owners became re-invested: so the Con∣tract * 1.129 by fiction of Law became as if she never had been taken, and so the entire Freight becomes due.

XIII. If Freight be taken for 100 Tuns of Wine, and 20 of them leak out, so that there is not above 8. inches from the Buge upwards, yet the Freight becomes due: One reason is, because from that gage the King * 1.130 becomes entitled to Custome; but if they be under 8. inches, by some it is conceived to be then in the Election of the Freighters to fling them up to the Master for

Freight, and the Merchant is discharged. But most con∣ceive 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 Tun∣nage 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 * 1.131 away, the Freight vanishes; but if by the Tun or Pieces of Commodity, and she happens to be cast away, after∣wards 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 con∣tented 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 * 1.132 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 * 1.133 to pay.

If a Ship by Charterparty reciting to be of the Burden of 200 Tuns is taken to Freight for a sum certain, to be paid at her return; the sum certain is to be paid though the Ship amounts not to that Burden.

If a Ship is Freighted after the rate of 20 l. for every moneth that she shall be out, to be paid after arrival at the Port of London; the Ship is cast away coming up from the Downs, but the Lading is all preserved; yet the Freight is become due: for the money arises due monthly by the Contract, and the place mentioned is onely to shew where payment is to be made, for the Ship deserves wages like a Marriner who serveth by the month; and though he dyes in the Voyage, yet his Exe∣cutors

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 Freigh∣ters without advising with the Owners; but if the Own∣ers let out to the Freighters such a Ship whereof J. S. is Master, though the Master Covenant in the same Char∣terparty and subscribes, yet his Release in that case will not bind the Owners, but the Owners release on the other hand will conclude the Master; And the reason is, for that the Master is not made a proper party to the Indenture. And so it was Rul'd, where an Indenture of Charterparty was made between Scudamore and other Owners of the good Ship called the B. whereof Robert Pitman was Master on the one party, and Vandenstene on the other party; In which Indenture the Plaintiff did Covenant with the said Vandenstene and Robert Pitman, and bound themselves to the Plaintiff and Robert Pitman for performance of Covenants in 600 l. and the Conclu∣sion of the Indenture was,—In witness whereof the * 1.134 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 demur∣red: 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 di∣vers 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 En∣gland, and of the punishment of those that shall not make restitu∣tion.
• 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 claim∣ing their property.
• IX. Wreckt Goods not to pay Cu∣stome.
• X. Of Wreck in the Isle of Wight, not in the Admiral without spe∣cial words.

IN matters of Wreck there is as it were a Contract be∣tween them which have lost their Goods by such mis∣fortune, 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 * 1.135 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 * 1.136 who was the owner thereof, and discend upon his Suc∣cessor; neither Escheat to the King, neither to any other to whom the King hath granted such Royal Pri∣viledge.

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 * 1.137 misfortune, That if the Merchant, Marriners or Mer∣chants, 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 * 1.138 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, * 1.139 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 steal∣ing * 1.140 of a Nayl or the worth thereof, obliged the Thief to the restitution of all the remaining Goods. And by the Emperour Antonius it was made a Law for such sort of men, that they should be batten'd and banish'd for 3. years; but that was onely for those of a high and * 1.141 Honourable rank: but those that were base and igno∣ble, should be scourged and sent to the Gallies, or Me∣tal Mines.

And the preventing of help to such shipwrackt per∣sons * 1.142 was punisht with the same suffering as a Mur∣therer.

The like for those that shall put forth any Treache∣rous 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 punish∣ed: * 1.143 hence it is that Fishers are forbidden to Fish with Lights in the Night, for fear of betraying of Say∣lors. * 1.144

But this good Law does not extend to Pyrats, Rob∣bers, Sea-Rovers, Turks, or other Enemies to the Catho∣lique * 1.145 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 * 1.146 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 Inhabi∣tants 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. * 1.147

IV. If the Ship perishes onely, and the Goods are safe, in that case the Goods ought to pay a proportion * 1.148 of a 5th or 10th penny, according to the easie or diffi∣cult 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 Skip∣per 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 privi∣ledged by the King.

VI. By the grant of Wreck will pass Flotsam, Jet∣sam, and Lagan, when they are cast upon the land; but * 1.149 if they are not cast upon the land, the Admiral hath Jurisdiction and not the Common Law, and they can∣not 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 perish∣ed, * 1.150 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, * 1.151 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 * 1.152 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 * 1.153 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 af∣ter * 1.154 the forsaken Ship perisheth, if any of the men be sa∣ved * 1.155 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 * 1.156 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 * 1.157 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 be∣longs to the King, the party may sue out a Commission * 1.158 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 * 1.159 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 * 1.160 Lord having power, takes them, he shall not pay Cu∣stome.

The Admirals of England, ut magnus Admirallus; Angliae, Hiberniae, Walliae, ac Dominiorum & Insularum earundem Villae Calisiae & Merchiarum ejusdem nec non * 1.161 Gasconiae Aquitaniae, classium & marium dictorum regnorum Angliae praefectus generalis, &c. which are the words of their Patents used at this day, do claym all Wrecks arising from any of those places, by vertue of their Grants.

X. King Edward the Second in the first year of his Reign, by his Charter granted the Castle of Carisbrook, with all * 1.162 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, toge∣ther with sundry other Castles and Lands) and com∣manded Nicholas de Bosco, to put him into actual pos∣session, and likewise commanded Robert de Sanson Kee∣per of the Forrest of Parkhurst in that Isle, to be inten∣dent 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 * 1.163 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 * 1.164 Castrum valet {per} ann̄ 4 S.

So that by the general Patent of the Admiral will not pass the Wreck of this Isle, without special words granted in the Patent.

Note, If the Wreck happened, or was occasioned by * 1.165 reason of any fault or negligence in the Master or Mar∣riners, 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 excu∣sed. * 1.166

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 sub∣ject to the Averidge.
• IX. Where Ship and Lading are both made liable to the Ave∣ridge.
• 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 Contributi∣ons.
• XIII. The Master becomes a Cap∣tive for the redemption of Ship and Lading, where lyable to the Averidge, and where dis∣charged.
• 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 sub∣ject * 1.167 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 com∣mon safety of the rest.

If there be a super Cargoe, a request ought to be made * 1.168 to him to begin first; but if he refuses, the Marriners may proceed.

II. If the Ship so fortunes as to out-weather the * 1.169 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 clear∣ing of that Point varies according to the several Coun∣tries * 1.170 or places they arrive at.

III. King William the Conquerour, and Henry the First, made and ratified, this Law concerning Goods cast over∣board * 1.171 by Marriners in a Storm, in imitation of the An∣cient Rhodian Law; de jact'.

Si ego jecero res tuas de Navi ob metum mortis de hoc non potes me implacitare nam licet alteri damnum * 1.172 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 * 1.173 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 to∣tally 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. * 1.174

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 no∣tice of the misfortune, and makes provision to Indemp∣nifie 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 * 1.175 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 ac∣counted * 1.176 like unto a Workman breaking or spoyling his Tools; So for Goods secretly brought into the Ship against the Master or Pursers knowledg, no Contribu∣tion is to be made, except in the avoiding of a danger, as the flinging the Most overboard, or the slipping the * 1.177 Tow-Anchor or Boat.

This Order is observed generally in the rating the remainder of the Goods by way of Contribution. * 1.178

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 * 1.179 arrow_back Maritime Law looks upon them likewise as a security for the answering the Averidge and Contribution, and that the Master ought not to deliver the Goods till the Contribution is settled; the same being tacitly obliged for the one as well as the other. Ad leg. Rhod. l. 2. Si non conservatis.

VIII. If through the rifling of the Ship, or the casting or unlightning the Ship, any of the remaining * 1.180 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 * 1.181 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 par∣ty

Covenants that the Goods shall be delivered at the * 1.182 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 * 1.183 other, and the Crew swear their Innocency, Contribu∣tion must be made by a just equality; but if one pe∣rishes, 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. How∣ever, this barrs not the Owners from bringing their Action against the negligent Master, by which means * 1.184 he may recoope himself in damage, if it happens at Sea, the Action by the Civil Law is called Legis Aqui∣lae. * 1.185

If such a misfortune happens in the Night at Sea, the party if he will compleatly arm himself for his re∣covery, 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 in∣discreet * 1.186 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 Ma∣ster cuts down the Masts and Sayls, and they falling * 1.187 into the Sea are lost, this damage is to be made good by Ship and Lading pro rata: otherwise if the case hap∣pens 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 di∣vision

of the damage, in case it happen by a Casual∣ty, as above.

If a Lighter or Skiff, or the Ships Boat into which part of the Cargo is unladen for the lightning of the * 1.188 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 Ene∣mies * 1.189 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. * 1.190

But if a Pyrat takes by violence part of the Goods, the rest are not subject to Average, unless the Mer∣chant hath made an express agreement to pay it after the Ship is robb'd. * 1.191

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 preser∣vation 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, Esti∣mate is to be made of his and their Apparel, Rings and Jewels, towards a contribution of the loss; and ge∣nerally 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 Con∣tribution.

The Estimate being made of the Goods lost and sa∣ved, 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 * 1.192 thing be flung into the Sea and endamaged, and after∣wards 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 * 1.193 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 da∣mage * 1.194 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 * 1.195 and lost, are estimated according as the Goods saved were sold for; Freight and other necessary charges be∣ing 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 dis∣covering of the same to the Master or Marriners, other∣wise he shall be answered in the Contribution no more

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then the bare extrinsick value appeared to be; but the * 1.196 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 re∣covered; * 1.197 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 * 1.198 no derelict.

And though such necessity seems to subject the La∣ding to Ejectment to prevent the ruine and destruction of the persons, yet some Lading seems excepted, and therefore Canon and other Instruments or Provisions * 1.199 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 intro∣duced.
• II. Assurances the nature of them.
• III. How esteemed of by Law.
• IV. The various wayes of Ensure∣ing, 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 Hea∣ven and Earth.
• VIII. A Ship Ensured generally, whether the same includes the Cargoe; and whether it is neces∣sary in the Pollicy to mention the particular Goods.
• IX. If the Master is discharged of the damage, whether the En∣surer may be made lyable.
• X. A Ship Ensured from a Port, and she is burnt before her depar∣ture, whether the Assurers are made lyable.
• XI. Goods Ensured in one Ship, are afterwards in the Voyage put into another, the second mis∣carries, whether the Assurors are made lyable.
• XII. A man Ensures more than the value of the Cargo, the Cu∣stome in such case.
• XIII. A Ship is Ensured from one Port to another, and there to be landed; the Cargoe after ar∣rival 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 opera∣tion the same has by Custome.
• XVI. Of the Office erected by the Statute of 43 Eliz. what power; of the Jurisdictions claymed by those at Common Law and the Admiralty.
• XVII. What power and authori∣ty was given by the Statute of 43 Eliz. to that Court.
• XVIII. What things it was de∣ficient in: and holpen by the Statute of 14 Car. 3. cap. 23. and of their authority and power general at this day.
• XIX. Of the advantage•…•… that seem to accrew to publique Assu∣rances, different from privat•…•… ones.

IT is conceived by Suetonius, that Claudius Caesar was the first that brought in this Custome of Assurance, * 1.200 by which the Danger and Adventure of Voyages is di∣vided, 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 Pol∣licy is. * 1.201

II. Assurances are either publique or private; Pub∣lique, when they are made and entred in a certain Of∣fice 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 Ensu∣red 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 Ad∣venture.

But by the proceedings erected by Statute of 43 Eliz. * 1.202 Cap. 12. onely those that are entred in the Office of that Court, can be sued or determined there.

IV. Assurances are of various sorts, some being to places certain, others general; those that are made to places certain, are commonly upon Goods laden or to * 1.203 be laden aboard outward, and untill the same Adven∣ture 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 * 1.204 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, pro∣cures seldome subscriptions.

As Goods and Merchandize are commonly Ensured, so likewise are the Ships Tackle and Furniture; but in * 1.205 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 * 1.206 are these words inserted lost or not lost; which is com∣monly done when a Ship hath been long missing and no tydings can be had, the Premio especially in time of Warr will run very high, sometimes 30 or 40 per Cent'; and though it happens at the time that the subscription is made the ship is cast away, yet the Assurers must an∣swer.

But if the party that caused the Assurance to be made * 1.207 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 after∣wards * 1.208 give order that going out of the Port she should be sunk or wreckt; this will be fraudulent, and not ob∣lige the Assurors to answer.

VI. Few or scarce any Ensure the whole Ship, but the Subscriptions being for Sums certain, as 50 l. or * 1.209 500 l. at the Premio then current, which when the Ad∣venture is born they receive; but if a loss happens, the Premio is deducted together with the usual abatemate: so that the Ensured receive much about 80 per Cent. if a loss happens.

VII. The Pollicyes now adayes are so large, that almost all those curious Questions that former Ages and the Civilians according to the Law Maritime, nay and the Common Lawyers too, have controverted, are now * 1.210 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, Ene∣mies, Pyrats, Rovers, &c. or whatsoever detriment shall happen * 1.211 or come to the thing Ensured, &c. is provided for.

VIII. If a Merchant Ensures such a Ship generally, * 1.212 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, * 1.213 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 af∣terwards * 1.214 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 5000 l. worth of Goods, and he hath but 2000 l. remitted, now he having en∣sured * 1.215 the real Adventure, by the Law Maritime all the Assurors must answer pro rata. But by the opinion of some, onely those first Subscribers who underwrit so much as the real Adventure amounted to, are to be made lyable, and the rest remitting their Premio 10 s. per Cent. deducted out of the same for their subscriptions, are to be discharged.

XIII. A Merchant Ensures his Goods from London * 1.216 to Sally, and there to be Landed; the Factor after ar∣rival 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 pro∣perty 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 con∣tracted for the Freight to another Port, and the Ship had happened to take fire, the Assurors are hereby ab∣solutely discharged for ever.

XIV. If a Ship be Ensured from London to and blanck being so left of purpose by the Lader to pre∣vent * 1.217 her surprize by the Enemy, in her Voyage she hap∣pens to be cast away, though there be private Instructi∣ons 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 Ad∣venture, * 1.218 or that he would have the assistance of the As∣surors; when there is hope of Recovery of the Adven∣ture, 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 contri∣bute, the same being but a trouble to give ease to the As∣sours.

If prohibited Goods are laden aboard, and the Mer∣chant 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 Detain∣ments of Kings and Princes, and of all other persons, Bar∣ratry 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 * 1.219 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 consign∣ed 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, Lea∣ther, * 1.220 and the like, or send out Goods in a Forraign bottome * 1.221 and then make a Pollicy, the Ship happens afterwards to be taken, by reason of which there be∣comes 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 Pol∣licyes.

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 * 1.222 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 ar∣rives, 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 * 1.223 the dampness of the Ship, and that the two last men cannot receive their proportion: There are in this case these things to be considered:

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

Certainly the Master is not bound to deliver the exact * 1.224 quantity, nor is he obliged to redeliver thev ery specifi∣cal 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 * 1.225 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 de∣liver to one first before another.

As to the second, It is no question but that the Assu∣rors 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 neces∣sity * 1.226 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 sel∣dome 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 diffe∣rence between the Assuror and assured, of which there are 3. parts, one sent over Sea; the other left with the Master; and the last remaining with the Lader.

XVI. The Office of Assurance was Erected by the Statute of 43 Eliz. Cap. 12. which reciting, That where∣as differences growing upon Pollicyes of Assurances had been ordered by discreet Merchants approved by the Lord Mayor, who did speedily decide those causes, un∣till that of late years divers persons did withdraw them∣selves 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 re∣newed yearly, or as often as to him shall seem meet,) for the hearing and determining of all such causes ari∣sing 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 Lon∣don, two Doctors of the Civil Law, two Common Lawyers, 8. grave and discreet Merchants, or to any 5. of them; and that they or the greatest part of the Commissioners have power to Hear, Examine, Order and Decree all such causes in a brief and summary way without formality of pleading.

They have power to summon the parties, examine witnes•…•…s upon Oath, commit to prison upon refusal of

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 par∣ty be imprisoned he may be discharged) and then it lyes in the Lord Chancellors or Keepers Breast to affirm or re∣verse, 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 Alder∣men, To proceed uprightly and indifferently between party and party.

XVII. This was a good Act, had it been as care∣fully 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 Pol∣licy notwithstanding this Act, which is as good and effectual in Law to all intents and purposes, as one made and entred in the said Office; and that such a Pollicy might and may be now sued at the Common Law.

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

Thirdly, If the parties or witnesses refused to ap∣pear, they had no power to punish the party for the delay, with costs or otherwise, which was very mischie∣vous.

Fourthly, No Commissioner could sit before he was sworn: Commissions and the Commissioners being of∣ten 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 * 1.227 Enacted, That 3. Commissioners, whereof a Doctor of the Civil Law, and a Barrister of 5. years standing to be one should make a Court, and to act as any 5. before might have done.

They have likewise power now given them to sum∣mon 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 admini∣ster 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 Exe∣cutors and Administrators, and Execution accord∣ingly; 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 Cog∣nizance * 1.228 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 happen∣ed 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, * 1.229 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 ab∣solute Jurisdiction, yet at least a concurrent one; yet * 1.230 both have been denyed them, notwithstanding that the Judge of the Admiralty is Judge of the Court of Assu∣rance.

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

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

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

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

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

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

6. The Judgments there given are generally upon mature deliberation, and by persons well skilled in Ma∣ritime 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 enti∣tuled to those duties.
• X. A Grant to be free of all Cu∣stomes, Impositions, &c. extends not to Prisage and Butlerage.
• XI. Cinque-Ports exempted from Prisage.

I. PRisage, is a certain taking or purveyance for wine to the Kings use; The same is an ancient Duty which the Kings of England have time out of mind had and received; the manner hath been by taking of every Ship or Vessel that should come into this Realm, if ten Tun, to have for Prisage one Tun: and if it contain 20 Tun or more, to have two Tun (viz.) unum ante doleum, and the other deorsum, paying 20 s. for each Tun: And this ancient Immunity they have enjoyed as a Flower of the Crown, and by some has been con∣ceived * 1.231 not grantable away without Act of Parliament. But yet in 6 E. 3. fo. 3. Case 15. mentions the same to be grantable over.

II. King Edward the First having laid some Impo∣sitions on the Merchants, which in Anno 25. of his Reign being taken away with promise that neither he nor his Successors should do any such thing with∣out Assent of Parliament: In 31. of his Reign they

granted him an encrease of Customes; in lieu of which * 1.232 he granted them many Immunities, as Release of Pri∣sage, &c.

III. Prisage is not due till the unlading, or that which * 1.233 is commonly called breaking of Bulk; for the words are, de qualibet navi important vini & disonerant inde.

King Edward the Third by his Charter dated 6. Mar∣tij Anno Regni primi, granted his Royal Charter of dis∣charge to the Major, Commonalty and Citizens of Lon∣don, in haec verba, (viz.) Quod de vinis Civium nulla prisa * 1.234 fiat, sed perpetue inde essent quieti, &c. which was after∣wards allowed in the Exchequer.

IV. It is not every Citizen that is capable of this Pri∣viledge, 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, remo∣ved his Houshold cum pannis, and did dwell at Boistol, but yet kept his Shop in London; and a Ship of his arri∣ving with Wines at London, and being unladen, the Pri∣sage was demanded; he claymed the benefit of discharge. * 1.235 It was adjudged, he was not capable of the same: for he that will claym the benefit of this discharge, ought to be Civis incola Comorans.

24 H. 6. (A Private Act of Parliament,) Complaint was made, That the Lord Major of London would make Strangers Citizens; It was there declared, That this benefit to be discharged from payment of Prisage, did * 1.236 not extend to such Citizens as were dotati, made free, but unto those Citizens onely which are comorant inco∣lant, and resiant within the City.

V. If a Forreigner brings a Ship laden with Wines * 1.237 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 pay∣ment 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 be∣fore the arrival, the duty shall be paid. * 1.238

A Quo Warranto was brought against three Arch∣bishops of York, to shew cause why they demanded to have Prisage for Wines brought into the Port of Hull. * 1.239 The two first pleaded to have onely the first taste, and a pre-emption after Prisage paid: But the third pleaded * 1.240 a Charter of 15 E. 2. by force of which he claimed the same; and Rul'd not good. For though the Charter might be good, yet it was held in that case, a disclaymer by the Predecessor should bind the Successor: And at this day, the Duke of Ormond in Ireland hath an In∣heritance * 1.241 in the Prisage of Wines by the Kings Charter.

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

King John granted to the Merchants of Aquitaine Trading for Wines thence into England divers Liber∣ties, amongst others, Libertatibus concessis Mercatoribus * 1.242 vinetarijs de Ducatu Aquitaniae reddendo Regi & heredi∣bus suis 2. s. de quolibet dolio vini ducti per eosdem infra Regnum Angliae vel potestate Regis.

All Merchants Strangers in consideration of the Grant * 1.243 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 * 1.244 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 an∣other * 1.245 mans name whereby to defraud the King of Prisage and Butlerage.

IX. Breaking of Bulk is that which entitles the King to the Duty: for if a Merchant Imports Wines to the number of 20 Tuns, yet if he unlades but part, as 9. or 4. Tun, yet the King shall have the entire Prisage; and though the Custome seems to declare, that the taking must be as well before as after the Mast, yet is not the Officer tyed to that strictness, but may take where he pleases; for two Tuns are the Kings due: for other∣wise * 1.246 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 King∣dome.

X. The King granted to a Venetian Merchant that he should be quit, did omnibus custumis Subsidijs & im∣positionibus & omnibus alijs denariorum summis debitis & solubilibus pro quibuscun{que} Merchandizis importandis; and that he should be as free as the Citizens of London: In that case it was adjudged in the Exchequer, That by that * 1.247 Grant the King did not discharge him of Prisage, be∣cause the Prisage was not specially expressed in the Grant, although that the City of London were by a spe∣cial Charter freed of Prisage.

XI. The Cinque-Ports are likewise discharged of * 1.248 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 miscar∣ry, what the Ships Crew may do at such time.
• III. Of Ignorant Pylots their pu∣nishment, and if the Ship mis∣carries, 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 mo∣ney.
• 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 fur∣ther bound or lyable; for then the Master is to see her bed and to her lying, and bear all the rest of her Bur∣then, 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 * 1.249 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 Mer∣chant may have his remedy against both? It hath been conceived the Merchant hath his Election to charge ei∣ther; and if the Master, then he must lick himself whole of the Pylot.

IV. Wharfage is money paid for landing Wares at * 1.250 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 * 1.251 that the Goods were stole: The Question was, Whe∣ther the Wharfinger or the Master should answer? Up∣on 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 * 1.252 commonly about twelve pence per Tun.

If the Ropes break in hoysting of Goods out of the * 1.253 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 Whar∣finger * 1.254 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 * 1.255 over the Lading; and in the Bills of Lading they are exprest after Freight, together with Primage and Ave∣ridge accustomed.

The French Ships commonly term the Gratuity Hatt-Money, and our English Merchants pay it our Ma∣sters 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 * 1.256 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 Ad∣miralty, but not in both.

The Hire is called Loadmanage, the which the Py∣late 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 satisfacti∣on; so it is if they lay out an Anchor and neglect the * 1.257 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 equal∣ly

divided and apprized half by half; but then the Mar∣riners must swear there was no fault in them: for other∣wise * 1.258 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 Con∣tribution 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 Nati∣ons in imitation of those peo∣ple.
• IV. Of the several sorts of Ex∣changes, and of Cambio com∣mune.
• V. Of Cambio real, or Exchanges value for value.
• VI. Of Cambio sicco, or dry Ex∣changes.
• 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 re∣paid by Exchange.
• XI. Of Bills of Exchange payable at single usance.
• XII. Bills of Exchange at double or treble usance, and of the cu∣stomary 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 accep∣tance.
• XVII. Protest, what is meant by the same; and where the same is necessary, and where not.
• XVIII. Bill drawn on two per∣sons, where the same is necessary, and where not.
• XIX. One Factor serves a Com∣pany, 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-pay∣ment.
• 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 necessa∣ry 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 revo∣ked; and whether it may be ac∣cepted 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 allow∣ed for payment after failer of payment at the day.
• XXXI. Of the validity of the spee∣dy protest as in relation to re∣cover 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 obtain∣ing 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 neces∣sary.
• XXXV. Causes general for a Pro∣test, and where satisfaction to the deliverer discharges all par∣ties.
• 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 year∣ly paid towards the Service of the Temple according to the Commandement of God; on the 25th of Adar then they brought Tables into the Temple, (that is, * 1.259 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 * 1.260 in a readiness in the same Court to be sold for Sacrifi∣ces; 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 up∣on 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 up∣wards of 2000 years, Moneys being then elected out of the best of Metals to avoid the tedious carriage of Mer∣chandize, from one Countrey to another: So other Nations imitating the Jewes and Romans, erected * 1.261 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 car∣riage.

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

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

Cambio Commune in England was those that were Constituted by the several Kings, where having recei∣ved * 1.262 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 cor∣respondence 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 * 1.263 the Species, but according to the value of the several Coyns, which two Offices afterwards were incorpora∣ted, 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 Mer∣chant hath occasion for 500 l. for a certain time, and would willingly pay interest for the same; the Banker being desirous to take more than the Statute gives, and yet would avoid the same, offers the 500 l. by Exchange for Cales, whereunto the Merchant agrees; but the Mer∣chant * 1.264 having no correspondence there, the Banker de∣sires 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 cu∣rant; 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 con∣scientious as not to make above 30 per Cent.

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

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

These two last wayes of grinding the face of the * 1.265 generous Merchant, was afterwards prohibited, but, notwithstanding it was found impossible to moderate the inequality of Exchanges, and to have value for va∣lue: 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

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each other Countrey, according to their several Stan∣dards 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 Mo∣neys to any Nation or Countrey whatsoever: As for instance,

If one receives 100 l. in London to pay 100 l. in Exe∣ter; this by the Par.

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

But this Course of Exchange * 1.266 is of later years abu∣sed, 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 mo∣ney.

IX. As Money is the common measure of things be∣tween 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 re∣ceived 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 Mer∣chant 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 20 s. and 12 d. to the shilling, for Germany, * 1.267 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, Ve∣nice, and other places in the Streights, commonly by the Dollar, and Florin.

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

The taking and delivering money at sight binds the taker up to give his Bill to pay at sight, or within some short time the like sum after such a rate the Pound, Dol∣lar, 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 go∣verned according to the custome of the place where those Exchanges do run.

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

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

Usance from London to Middleborough are generally accoun∣ted 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 di∣rect certain∣ty, but one∣ly that single Usance is a month, dou∣ble Usance 2. months, &c.
Usance from Amsterdam to Rome Are generally ac∣counted 2 months from the date, &c. Genoa Venice Naples Palermo Luca Sevill Lisbon
From London to Florence is sometime accoun∣ted 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 Ban∣kers.

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 * 1.268 such Bills, or return Money beyond Seas, without Li∣cence first obtained of the King.

But at this day any man may do it without being ob∣liged 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 con∣tents not being paid.

The right measure of judging on Bills of Exchange, is purely by the laudable Custome often reiterated over * 1.269 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 ac∣cepted 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 im∣mediately 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, Ac∣cepted by me A. B; or being in the Exchange sayes, I ac∣cept the Bill, and will pay it according to the Contents; this amounts without all controversie to an Accep∣tance.

But if the same be refused, the party must then pro∣cure * 1.270 a Protest, and remit the same to the Deliverer, who is to resort to the Drawer for satisfaction for the prin∣cipal 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 pay∣able to J. S. at double Usance, J. S. is not bound in * 1.271 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 an∣swer, and then give advice of the same, and if the mo∣ney 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 Ac∣ceptor.

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 * 1.272 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 ac∣cepts the same, this perhaps may make him lyable, but not another member.

So it is if 10 Merchants shall imploy a Factor at the Canaries, and the Factor drawes a Bill on them all, and

one of them accepts the Bill, and then refuses payment; this will not oblige the rest.

But if there be 3. Joynt Traders for the common stock and benefit of all there, and their Factor drawes a * 1.273 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 par∣ties; 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 Mer∣chants, 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 accep∣tance: 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 * 1.274 Hale at Guild-Hall.

A Bill may be accepted for part, for that the party * 1.275 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 * 1.276 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 Deli∣verer, * 1.277 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 de∣mand. * 1.278

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 ano∣ther person of value subscribes the Bill, in these or the like words, I here underwritten do bind my self as Princi∣pal, 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 * 1.279 under the No∣tary's hand is sufficient to shew in Court without pro∣ducing the very Bill it self. But if a Bill in England be

accepted, and a special Action grounded on the Cu∣stome 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 mo∣neys 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 law∣ful authority, as a Letter of Attorney, and the like, which must be under-hand, unless that it has been for∣merly 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 an∣other. * 1.280

A Servant of Sir Robert Clayton and Mr. Alderman Morris, (but at that time actually gone from them) took

up 200 Guineys of Mr. Monck a Goldsmith, without any authority of his Masters; (but Monck did not know that he was gone) the Moneys not being paid, Monck * 1.281 brought an Action against Sir Robert Clayton and Mor∣ris, and at Guild-Hall it was Rul'd per Keeling Chief Justice, That they should answer; and there was a Ver∣dict for the Plaintiff: And though there was great en∣deavours 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 * 1.282 authority and liberty which he usually gives the Ser∣vant; 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 * 1.283 and before the Bill becomes due, he hath advice the * 1.284 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, al∣though 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 can∣not refuse or discharge the acceptance.

Note. This case will admit of two Protests, perhaps three:

• 1. One Protest must be made for not accepting ac∣cording to the time. * 1.285
• 2. For that the money, being demanded according to the time mentioned in the Bill, was not paid.
• 3. If the Money is not paid according to that time that the Acceptor subscribed or accepted.

A. drawes a Bill on B, and B. is in the Country; C. a Friend of his hearing of the Bill accepts it: the party to whom the money is to be paid must make a protest for non-acceptance by B, and then he may take the ac∣ceptance of C, and it shall bind C. to answer the Mo∣ney.

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 * 1.286 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 * 1.287 bind the other; and an Action of the Case on the Cu∣stome may be maintained against him.

XXX. Merchants generally allow 3. dayes after a Bill becomes due for the payment; and for non-pay∣ment * 1.288 within the 3. dayes protest is made, but is not sent away till the next Post after the time of payment is expired.

If Saturday is the third day, no protest is made till * 1.289 Munday.

XXXI. The use of the Protest is this, That it signi∣fies * 1.290 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 en∣able 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 * 1.291 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 satis∣fied, yet it is with this proviso, that protest be made in due time, and a lawful and an ingenious diligence used * 1.292 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 * 1.293 then there is usually a demand made, which once come∣ing, 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 Draw∣er will pay the contents, and thereupon subscribes; he is obliged thereby: and in this case it has been practi∣sed, 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 toge∣ther 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 * 1.294 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 * 1.295 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 be∣comes due, yet the Bond is not forfeited if not paid at the day, because there was no body to whom the Obli∣gor 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 suffici∣ent 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 con∣suetudinem 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 Ex∣change 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 Ex∣change 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 ta∣ker 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 an∣other.

In Italy if Money is paid to a Banker's Servant, and if the Master subscribe, Pagate com si dice, this binds the Master as effectually as if he had subscribed it with his own hands.

XXXVIII. A Bill drawn by a Merchant in London payable by another person beyond Seas, such Bills in most Countreys are assignable over from Merchant to Merchant, and the last person may sue and recover the same upon an acceptance: But in England onely the first person mentioned in the Bill, and to whom the Money is made payable may recover. 'Tis true, such person to whom the Money is made payable, may for valuable consideration deliver this Bill to another per∣son, 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 equi∣valent to Natural Communi∣ty.
• 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 instru∣mental measure of the value of things.
• V. How Money is equal to all things.
• VI. Money is for buying, and hin∣ders not but helps Permuta∣tion.
• 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 Con∣tract 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 institu∣tion of this sort of Loan, and for what causes.
• XIII. Of the several wayes of ta∣king up of Moneys by way of Bot∣tomerie, real and feigned.
• XIV. Moneys so advanced, whe∣ther 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 usu∣fruit, being both honest and ho∣nourable.

I. MOney is one of those things which they who want, want all other things but words to re∣proach their bad Fortune. But sometimes it is the poli∣cy 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 obsti∣nate to hold to their advantages, that deformed Pover∣ty (which mixes with them in the same frame as a sha∣dow 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 men∣tioned. * 1.296

It cannot be denyed, but that we all live by the na∣tural 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 propor∣tion 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 Indu∣stry 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 Cre∣dit 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 * 1.297, 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 sup∣ply and a Treasure greater than the Indies; Of which One † 1.298 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 Sa∣viour, 30 Pieces for that which was worth Thirty thou∣sand 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 con∣demned to the obscurity of the Earth, and lodg'd so near Hell, now be made the price of all that which is above the Earth, even a Solo us{que} Coelum? Or why should we be excluded from the Gifts of Nature, un∣less we have those of Fortune? Is it not then more rea∣sonable 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 mi∣tigavit.

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 inhabi∣ted 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; Mo∣ney is like a Law or Government, which are all consti∣tuted by the same extream necessity; therefore the coun∣terfeiting or attempting to destroy any of these by pri∣vate 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 ei∣ther by Want, or Plenty; In Want we consider whether the thing be useful or necessary; things which are ne∣cessary 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 ab∣ject, but he may be some wayes useful to the Rich.

V. The Civil Measure or rather Instrument where∣by * 1.299 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 † 1.300 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 expe∣dite 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 with∣out 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 Instru∣ments: for he who hath Money may buy things which he need not use but sell, thereby to get other things af∣terwards 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 * 1.301 have been, if Money and Money-changers had not been allowed? How could they who came from such re∣mote 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 advan∣tage upon the same more than what the Law allowes, is taken?

The distinction is great between Moneys lent to be * 1.302 used in Commerce at Land, and that which is advan∣ced 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 † 1.303 tra∣jectitia, 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 re∣ceiving his Moneys; and therefore is called sometimes usura Maritima, as well as Faenus Nauticum; the advan∣tage accrewing to the Owners from their Money, arising not from the loan, but from the hazard, which the Len∣der runs; the which is commonly reduced to a time certain, or one or more Voyages, according to their se∣veral 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 bor∣rower runs the Risque, unless it be otherwise provided generally, as that if such a Ship shall not arrive at such * 1.304 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 con∣tingency begins not till the departure. Yet it has been conceived, That if the Master takes up Money accord∣ingly 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 where∣of * 1.305 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 su∣per Cargoe or a passenger, and before the day of pay∣ment 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 * 1.306 past before the misfortune happened, then the Lender must be repaid his whole Money free from Contribu∣tion.

And therefore by the Laws Maritime, if the bor∣rower 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 * 1.307 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 * 1.308 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 * 1.309 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 there∣unto; 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. * 1.310

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, * 1.311 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, Bod∣demerij; so variously pronounced from the Keel * 1.312 or bottom of the Ship upon the parallel, whereof the Rud∣der 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 † 1.313 in quem navis fundum, vel ipsam na∣vem ejus{que} usum mutuo accepta est pecunia, sed postea latius pro faenore nautico etiam usurpari caepit. And the Money so taken up by the Master is done upon great extremity, and that for the compleating of the Voyage * 1.314 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 na∣ture)

that if that Ship shall not arrive at such a place within 12 months, the money agreed on to be paid shall be paid; but if the Ship shall arrive, then nothing. The first of these is honourable and just according to the laudable practice among Maritime persons; and though the advantage runs high, as 20, 30, nay some∣times 40 per Cent. without consideration of time; for the Moneyes are to be paid within so many dayes after * 1.315 the Ships safe arrival; yet in regard the Adventure is born by the Lender, (for if the Ship perishes, the ad∣vancer 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 * 1.316 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 50 l. to the Defen∣dant to pay 60 l. at the return of the Ship to D, and if the said Ship by Leakage or Tempest should not re∣turn 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 * 1.317 Demurrer it was adjudged the same was not Usury: for if the Ship had stayed at Newfound-Land 2. or 3. years, yet at her return but 60 l. was to be paid, and if she never return∣ed, then nothing. * 1.318

The other advance which is upon a fictitious suppo∣sition of a Ship and Master, where indeed there is no such in Nature, is more unconscionable, the same be∣ing the common practice that's used amongst the Ita∣lians, and now on this side the Water: The same is as

to internal Right unjust, and cannot now be determin∣ed, since it was not long since adjudged * 1.319 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 * 1.320 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 se∣veral wayes, and a profit may arise so that there runs a peril on the Lender. * 1.321

There is likewise a second way of advancing of Mo∣neys called Usura Maritima, joyning the advanced mo∣neys and the danger of the Sea together; And this is obliging sometimes upon the Borrower's Ship, Goods and Person: The produce of which by agreement will advance sometimes 20, 30, and sometimes 40. per Cent. As for Instance, A private Gentleman has 1000 l. ready money lying by him, and he has notice of an Ingenious Merchant that has good Credit beyond Seas, and un∣derstands his business fully, applyes himself to him, and offers him 1000 l. to be laid out in such Commodities as the Merchant shall think convenient for that Port or Countrey the Borrower designs for, and that he will bear the adventure of that Money during all that Voy∣age; (which he knowes may be accomplished within a year) hereupon the Contract is agreed upon, 6 per

Cent, is accounted for the Interest, and 12 per Cent. for * 1.322 the Adventure outwards, and 12 per Cent. for the goods homeward; so that upon the return the Lender re∣ceives 30 per Cent. which amounts to 1300 l. The Lender in this case hath a good bargain, no question. Now let us see what advantage the Borrower hath.

1. The Borrower prevents the taking up the like Sum at Interest which comes to 6. per Cent, and Bro∣cage which comes now in this Age thorough the gene∣rosity of the Merchant, and Covetousness of the Serive∣ner, at 1. or 2. per Cent. more; and then the same is let out but for 6. months, and then the Scrivener in∣evitably at the 6. months end sends his Note, that his Friend expects his Moneys to be yaid in; so that to stop that gapp there must be Continuation, which is at least one per Cent. more, besides the obliging of Friends in Securities.

2. The Assurance prevented, which perhaps may come to between 5 and 20 per Cent. according as the Times are; and common prudence will never suffer a Mer∣chant to venture 2. parts of 3. parts of his Estate in one Bottome without assuring.

3. As he shall not have occasion to Ensure, so it may be a great occasion of preventing the common Ob∣ligation of his Ensuring of others; the which in a gene∣rous Merchant in honour cannot be denyed, the Premeo running pretty reasonable.

4. It prevents the parties running the Risque and danger of the Seas, Enemies, or any other fatal loss, and hath been a means to introduce a mans credit in a short time at lesser charge, if not to put him in in a Con∣dition not to be beholding to such a fair, though charge∣able 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; * 1.323 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, im∣ploy to those places as they judge most proper; if a re∣turn is made, the advantage of that is distributed •…•…o each person that is any way entitled to that Stock: which advantage is called a Divident, and perhaps may afford some years 20 or 30 per Cent.: But on the other hand; if that that proportion of the Stock which goes out hap∣pens 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 * 1.324 1000 l. Stock, he cannot take the same out of the Great Stock whereby to lessen the same, but he may transfer that usu-fruite by that Customary way which they have to any other person, for a valuable consideration infini∣tum. Such a Stock of 100 l. in the East-India Company in time of Warr might have been purchas'd for 80 l. Nett; but now in time of Peace scarce got under 170; or 180 l. the Dividents running high.

CHAP. XII. Of Impositions called Great Customes, Petty Customes, and Subsidies.

• I. Impositions, whether they may be commanded without the Three Estates, and of Magna Charta touching the same.
• II. Of Impositions made volun∣tary 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 determin∣ed.
• 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 Mag∣na Custuma.
• VII. Of that which is called Parva Custuma payable by stran∣gers, and the Act called com∣monly 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 For∣raign nor Inland Commodities of what nature soever, be they never so superfluous or unnecessary, neither up∣on Merchants Strangers nor Denizens may be laid by the King's absolute Power without Assent of Parliament, be it never so short a time.

By the Statute of Magna Charta, Cap. 30. the words are, All Merchants if they were not openly prohibited be∣fore shall have their safe and sure Conducts, to enter and de∣part, 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 29 times solemnly confirmed in Parliament.

II. Impositions were in some sort done Consensu Mer∣catorium, by Edward the First, and Edward the Third: And again in Henry the Eighth, of which the House of * 1.325 Burgundy complained, as against the Treaty of Enter∣course.

King Henry the Third finding that such a Modus of Imposition tended to the destruction of Trade, and ap∣parent overthrow of Commerce, and was against the Great Charter, made Proclamation Anno 16. in all Ports of England, That all Merchants might come faciendo rectas & debitas consuetudines nec sibi timeant de malis tol∣lis, * 1.326 for that such Impositions had no better name then Maletolts.

The like was declared and done by Edward the First in the 25th year of his Reign, and Edward the Second, in * 1.327 the 11th and 12th years of his Reign.

III. In 2 Ed. 3. the Great Charter for Free Traf∣fique was Confirmed; and about some 3. years after there were Commissions granted for the raising of a new kind of Tallage, but the people complained; where∣upon the Commissions were repealed, and he promised * 1.328 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 Parlia∣ment, 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 * 1.329 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 1000 Marks monthly to be paid unto the Ward∣rope. * 1.330

Richard the Second, Anno 20. Farmed out the Subsidy * 1.331 of Cloth in divers Counties.

So Edward the 4th, Henry the 8th, Queen Eliza∣beth, and King James; the same having been used in former Ages even in the best govern'd State, Rome, * 1.332 which let out Portions and Decim's to the Publi∣cans.

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 Ger∣many, the most considerable part of their Fleet miscar∣ried by Storm and stress of weather; for which accord∣ing to Covenant they demanded reparation: The good King in lieu of that which he wanted, Money, granted them divers Immunities; and amongst others, they were to pay but 1. per Cent. Custome, which continued till Queen Mary's time, and by the Advice of King Philip she enhanced the 1. to 20 per Cent: The Hans not only complained, but clamoured aloud for breach of their Ancient Priviledges confirmed unto them by long Pre∣scription from 13 successive Kings of England, and the which they pretended to have purchased with their Mo∣ney: King Philip undertook to accommodate the busi∣ness, 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 resi∣ding 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 Sta∣plers 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; where∣upon they applyed themselves to the Emperour, as be∣ing a Body incorporated to the Empire; and upon com∣plaint obtained Ambassadors to the Queen to mediate the. business: but they returned still re infecta: Here∣upon 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 Rats∣bone they procured that the English Merchants who had associated themselves in Corporations both in Embden and other places should be adjudged Monopolists; where∣upon 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 notwith∣standing, 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, remo∣ved and setled themselves in Hamburgh.

This Politique Princess in recompence of their re∣venge commanded another Proclamation to be publish∣ed, That the Hansatique Merchants should be allowed to Trade into England upon the same Conditions as they formerly did, Provided the English Merchants might have the same Priviledges to reside and Trade peaceably in Stode or Hamburgh; or any where else within the Precincts of the Hans. This so incensed and nettled them, That all endeavours were made to cut off Stode and Hamburgh from being Members of the Hans, or of the Empire: But the Design was suspended till they saw the Success of 88, King Philip having promised to do them some good Offices in the Con∣cern.

But the Queen finding that the Hans were not con∣tented with that Equality she had offered to make be∣twixt them and her own Subjects, but were using such extraordinary means; put forth another Procla∣mation, That they should transport neither Corn, Vi∣ctuals, 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 Fa∣mous by the Overthrow of King Philip's Invincible Armada, (as the Pope christned it) the Hans began to despair of doing any good, especially they having about some 60 Sayl of their Ships taken about the River Lis∣bon 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 purpose∣ly met to consult of means to be revenged of her, she

thereupon made absolute prize of those 60 Sayl, onely two were freed to carry home the sad Tydings of their Brethrens misfortune. Hereupon the Pole sent a rant∣ing Embassador in the behalf of the Hans, who spake the Injuries done to the Hans in a high tone. But the Queen her self suddainly answered him in a higher, with a satisfaction no greater than what she had done to others of the like quality before.

This fortunate Clashing for the 19. per Cent. on the Customes, has proved ever since advantageous for England, our Merchants have ever since beaten a peace∣ful 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 Na∣tion.

V. After the Jewes became Tributary to Rome, * 1.333 (which was acquir'd by Pompey Threescore years be∣fore the Birth of our Saviour) certain Officers or Com∣missioners were appointed by the Romans in all those places where their Victorious Standards had claymed a Conquest, who used to appoint such Officers or Com∣missioners to Collect and gather up such Custome-mo∣ney 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 * 1.334 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 * 1.335 of the Tribute, or chief Publican: And all the Pro∣vincial 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 Tri∣bute * 1.336 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 mana∣ging of that Office, in an Honourable remembrance thereof had certain Images with this Inscription, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, For the Faithful Publican. No mar∣vel that in Holy Writ Publicans and Sinners go hand * 1.337 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 Pru∣dent management of the present Commissioners: And were Tertullian alive, he would have Recanted that * 1.338 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 im∣posed.

And this Custome which is called Magna Custuma, is due to the King of Common Right for Four Cau∣ses:

1. For leave to depart the Kingdome, and to car∣ry Commodities of the Realm out of it.

2. For the Interest and Dominion which the King hath in the Sea, and the Arms thereof.

3. Because the King is the Guardian of all the Ports within the Realm, & Custos totius Regni.

4. For Whaftage and Protection of Merchants upon the Seas against the Enemies of the Realm and Pyrats.

VII. The Custome which is called Parva Custuma, is a Custome or Duty payable by Merchants Stran∣gers, and begun in the time of King Edward the First, when they granted him, that they would pay to him * 1.339 and his Heirs 3 d. in the pound for all Merchandizes Exported and Imported by them, &c. And that the Charter was and may be of great Use, I have here in∣serted 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 * 2.1 Archbishops, &c. sendeth Greeting. Con∣cerning the good Con∣dition of all the Mer∣chants of the Kingdoms, Lands, and Provinces underwritten: That is to say, Germany, France, Spain, Portugal, Navarr, Lombardy, Tuscany, Pro∣vence, Cathalonia; Our Dukedoms of Aquitain, Tholous, Turein, Flan∣ders, Brabant, and all other Lands, and forrein places, by what name soever called, coming into Our Kingdome of England, and there re∣maining.

We being very soli∣citous, out of Our espe∣cial Care, that under Our Dominion, a free∣dom of Tranquility, and full Security for the said Merchants may be pro∣vided 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 or∣daining more amply for securing their Conditi∣on in form following underwritten, are plea∣sed 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 Pro∣tection into Our said Kingdome of England, and every where with∣in Our Dominion, with their Merchandizes of what sort soever, and be unmolested, and quiet concerning a 2.2 Murage, b 2.3 Pontage, and c 2.4 Pa∣vage, 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 Domini∣on 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 for∣merly hath been accu∣stomed. And that all the said Merchants may carry, or cause to be carried whither they please, their Merchan∣dize which they have brought into Our said Kingdom, and Domini∣on, or otherwise acqui∣red; Except to the Lands of the manifest and no∣torious Enemies of Our Kingdom, paying the Customs which shall be due, Wines onely ex∣cepted, which shall not be exported out of Our said Kingdom, or Domi∣nion, after they have been Imported into Our said Kingdom, or Do∣minion, without Plea∣sure and special Licence, by any way or means whatsoever.

Item, That the said Mer∣chants may lodge in the Cities, Boroughs, & Towns aforesaid, at their own pleasure, and there stay with their Goods, to the content of them who en∣tertain them.

Item, That every Con∣tract made by the said Mer∣chants with what persons soever, and from what pla∣ces soever, for what kind of Merchandizes soever, shall be firm and stable, so that neither of the Mer∣chants shall depart from, or go back from his bargain, after a Gods-penny is given and received, between the principal persons contract∣ing; and if it happen that a Contention arise on the said Contract, there shall be a Tryal, or Inquisition, ac∣cording 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 de∣tention

by occasion of Prise, for the future, upon their said Wares, Merchandizes, or other their Goods by Us, or by any other, or o∣thers in any case, and ne∣cessity whatsoever, against the will of the said Mer∣chants, 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 con∣tented. And that no Ap∣praisement or value shall be put upon the said Mer∣chants Wares, Merchandi∣zes, or Goods, by Us or Our Ministers.

Item, We will, That all Bayliffs, and Officers of Fairs, Cities, Boroughs, and Market Towns, shall do spee∣dy Justice to the said Merchants complaining to them, from day to day, without delay, according to the Merchants Law, con∣cerning 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 Bay∣liffs 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 Mer∣chant 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 Mer∣chants, and the other half of honest and lawful men, where the Plea happens to be: And if a sufficient num∣ber

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 else∣where within our Domini∣on, Our Weight is to be put in a certain place, and be∣fore weighing thereof, the Scale to be empty in the presence of Buyer and Sel∣ler, 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 through∣out 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 un∣der, 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 hi∣therto observed.

Item, We will and grant, That some certain faithful and discreet person residing in London, may be appoin∣ted a Justice in behalf of the before mentioned Mer∣chants, 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 gran∣ted to the aforesaid Mer∣chants, besides this present Charter, viz. Concerning those [Goods] which are to be conveyed between Mer∣chants and Merchants, ac∣cording 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, notwithstand∣ing 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 considerati∣on of their obtaining the said Liberties, and free Usa∣ges, and Our Prises to be re∣mitted to them: All and singular the said Merchants for themselves, and all o∣thers on their part, have heartily and unanimously granted to Us that for eve∣ry Hogshead of Wine which they shall bring in, or cause to be brought in within Our Kingdome, or Domi∣nion thereof; and from whence they are obliged to pay Freight to the Mari∣ners, to pay to Us and to Our Heirs, by the name of Custome two shillings over and above the ancient Cu∣stoms 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 Mer∣chants or others in their names do buy, and out of this Kingdom transport, or buy to transport, shall pay fourty pence over and a∣bove the ancient Custom of half a Mark, which former∣ly

was paid. And for a Last of Hides carried out of this Our Kingdom and Do∣minion thereof, to be sold, half a Mark over and above that which according to ancient Custome was for∣merly paid; and likewise for Three hundred Wooll∣fels to be carried out of this Kingdom, fourty pence, be∣sides that certain sum which according to ancient Cu∣stome was formerly gi∣ven.

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 inter∣mixt.

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 o∣ther Commodities, as Goods weighed with Avoir-du∣pois Weights, and in other

fine Goods, as Cloth of Tarsen, of Silk, of * 2.5 Cindatis, of Hair, and in di∣vers other Mer∣chandizes, in Horses also, and other Animals, Corn, and other Wares and Merchan∣dizes 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 va∣lue of those Wares and Merchandizes, by whatso∣ever name they be called, three pence in the pound, upon the Entrance of their Wares and Merchandizes into Our Kingdom, and Do∣minion 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 like∣wise three pence for every twenty shillings, at the Ex∣porting of what kind so∣ever of Wares or Merchan∣dizes bought in Our King∣dom, and Dominion afore∣said,

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 twen∣ty 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 Mer∣chants, 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 Cu∣stom: 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 a∣foresaid, and thereupon they have their Warrant, they shall be free, and un∣molested in all other pla∣ces within Our Kingdom and Dominion, from pay∣ment of the said Custom for the same Commodities or Merchandizes by the said Warrant, whether such Merchandizes remain with∣in our Kingdom, and Do∣minion, or are carried out, Except Wines, which with∣out 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 bur∣den shall be imposed in any part or measure on the persons of the said Mer∣chants, their Merchandizes, or Goods contrary to the form before expressed and granted.

Witness hereto, The Re∣verend Fathers Robert Arch∣bishop

of Canterbury Pri∣mate of all England, Wal∣ter 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 Va∣lentia, 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 Westmin∣ster the First day of Fe∣bruary.

Pro Mercatoribus Alie∣nigenis de Libertati∣bus eis concessis.

REX, Archiepis. &c. Salutem. Circa bonum statum omnium Mercatorum subscripto∣rum Regnorum, Cerra∣rum, & Provinciarum, videlicet, Alemann. Franciae, Ispanioe, Portu∣galiae, Navarr. Lumbar∣diae, Tusciae, Provinciae, Catholoniae, Ducatus nostri Aquitann. Tho∣losan Tatureini Flandr. Brebant. & omnium ali∣arum terrarum, & loco∣rum extraneorum quo∣cunque nomine censean∣tur, venientium in Reg∣num nostrum Angliae & ibidem conversantium.

Nos precipua cura solicitat, qualiter sub nostro dominio tranqui∣litatis, & plene securi∣tatis immunitas eisdem Mercatoribus futuris temporibus preparetur: ut itaque vota ipsorum reddantur ad nostra, & Regni nostri Servicia

promptiora; ipsorum Petitionibus favorabi∣liter •…•…nuentes, & pro statu eorundem plenius assecurando, in forma que sequitur ordinan∣tes subscripta, dictis Mercatoribus pro no∣bis, & heredibus nostris in perpetuum durimus concedenda.

Imprimis, Uidelicet, quod omnes Mercato∣tes dictorum Regnorum & terrarum salvo, & se∣cure sub tuitione & pro∣tectione nostra in dictum Regnum nostrum An∣gliae, & ubi{que} infra po∣testatem nostram alibi veniant cum Merchan∣disis suis quibuscunque, de Muragio, Pontagio, & Pavagio, liberi & qui∣eti: quodque infra idem Regnum & Potestatem nostram, in Civitatib{us}, Burgis & Uillis, Mer∣catorijs possint mercari, duntaxit in grosso, tam cum Indigenis, seu Iucolis ejusdem Reg∣ni, & potestatis nostre predicte, quam cum A∣lieienigenis extraneis

vel privatis. Ita ta∣men quod Merces que vulgariter Merceriae, vocantur ac Species, minaciatim vendi pos∣sint, prout antea fieri consuevit: Et quod omnes predicti Mer∣catores Merchandisas suas quas ipsos ad pre∣dictum Regnum & Po∣testatem nostram addu∣cere, seu infra idem Regnum & Potestatem nostram emere, vel a∣lias adquirere contige∣rit; possint quo volue∣rint, tam infra Reg∣num & Potestatem no∣stram predictam, quam extra ducere, seu por∣tare facere, praeter∣quam ad terras mani∣festorum, & notorio∣rum hostium Regni no∣stri, solvendo consuetu∣dines quas debebunt, Vinis duntaxit excep∣tis, que de eodem Reg∣no, seu potestate no∣stra, postquam infra idē Regnum, seu Potesta∣tem nostram ducta fue∣rint, sine voluntate no∣stra & licentia speciali, non liceat eis educere quoquo modo.

Item, quod predicti Mer∣catores, in Civitatibus, Burgis predictis pro volun∣tate sua hospitari valeant, & moac U•…•…llis rari cum bo∣nis suis, ad gratum ipsorum quorum fuerint hospitia sive domus.

Item, quod quilibet Con∣tractus per ipsos Mercato∣res cum quibuscunque per∣sonis, undecumque fuerint, super quocumque genere Merchandisae, initus, fir∣mus sit & stabilis; ita quod neuter Mercatorum ab illo Contractu possit discedere, vel resilere, postquam de∣narius Dei inter principales personas contrahentes, da∣tus fuerit & receptus. Et si forsan super contractu hujusmodi contentio oria∣tur, fiat inde probatio aut Inquisitio secundum usus, & consuetudines feriarum, & villarum ubi dictum con∣tractum fieri contigerit, & iniri.

Item, Promittimus pre∣fatis Mercatoribus pro no∣bis, & heredibus nostris, in perpetuum concedentes, quod nullam prisam vel arestationem, seu dilatio∣nem occasione prisae de cae∣tero

de mercimonijs, Mer∣chandisis, seu alijs bonis suis per nos, vel alium, seu alios, pro aliqua necessitate vel casu, contra voluntatem ipsorum Mercatorum ali∣quatenus faciemus, aut fieri patiemur; nisi statim solu∣to precio pro quo ipsi Mer∣catores aliis hujusmodi mer∣cimonia vendere possint, vel eis alias satisfactio ita quod reputent se contentos, & quod super mercimonia, merchandisas, seu bona ip∣sorum per nos, vel mini∣stros nostros, nulla appre∣ciatio, aut aestimatio impo∣netur.

Item, Uolumus quod omnes Ballivi, & Ministri feriarum Civitatum, Bur∣gorum, & Uillarum Merca∣toriarum, mercatoribus an∣te dictis conquerentibus co∣ram cis, celerem justitiam faciant de die in diem sine dilatione, secundum LE∣GEM MERCATORI∣AM, de universis & singu∣lis que per eandem Legem poterunt tetminari. Et si forte inveniatur defectus in aliquo Balivorum vel mi∣nistrorum

predictorum unde fidem Mercatores, vel eo∣rum aliquis dileus incom∣moda sustinuerint, vel susti∣nuerit, licet Mercator ver∣sus partem in principali re∣cuperaverit dampna sua, ni∣chilominus Ballivus, vel minister alius versus nos, prout delictum erigit, pu∣niatur, & punitionem istam concedimus in favorem mer∣catorum predictorum, pro eorum justitia maturanda.

Item, quod in omnibus generibus placitorum, salvo casu criminis pro quo i•…•…i∣genda sit poena mortis, ubi Mercatur implacitatus fu∣erit vel alium implacitave∣rit, cujuscumque conditio∣nis idem implacitatus ex∣titerit, extraneus vel pri∣vatus, in Nundinis, Civi∣tatibus, sive Burgis ubi fuerit sufficiens copia Mer∣catorum predictarum terra∣tum, & Inquisitio fieri de∣beat, sit medietas Inquisi∣tionis de eisdem Mercatori∣bus, & medietas altera de alijs probis & legalibus ho∣minibus loci illius, ubi pla∣citum illud esse contigerit: Et si de Mercatoribus dicta∣rum Cerrarum numerus

non inveniatur sufficiens, ponantur in Inquisitione il∣li qui idonei invenientur ibidem, & residui sint de aliis bonis hominibus, & idoneis, de locis in quibus placitum illud erit.

Item, Uolum{us}, Ordinam{us}, & Statuimus, quod in qua∣libet Uilla Mercatoria, & feria Regui nostri predicti, & alibi infra potestatem no∣stram, Pondus nostram in certo loco ponatur, & ante ponderationem Statera in presentia Emptoris & Uen∣ditoris vacua videatur, & quod brachia sint equalia, & ex tunc Ponderator ponde∣ret in aequali, & cum State∣ram posuerit in aequali, sta∣tim amo•…•…eat manus suas ita quod remaneat in aequa∣li, quod{que} per totum Reg∣num, & potestatem nostram unum sit pondus & una mensura, & signo Standardi nostri signentur, & quod quilibet possit habere Sta∣teram unius Quarteroni & infra, ubi contra Dominum loci, aut libertatem per Nos, seu Antecessores no∣stros concessam illud non

fuerit, sive contra villarum aut feriarum consuetudi∣nem hactenus observatam.

Item, Uolumus, & con∣cedimus quod aliquis cer∣tus homo, & fidel•…•…s, & discre∣tus London residens, assig∣netur Justiciarius mercato∣ribus memoratis, coram quo valeant specialiter placita∣re, & debita sua recuperare celeriter, si Uicecomites & Majores eis non facerent de die in diem celeris justi∣tiae complementum, & inde fiat Comissio extra cartam presentem concessa Merca∣toribus ante dictis, scilicet de hijs que sunt inter Mer∣ca tores, & Mercatores, se∣cundum LEGEM MER∣CATORIAM deducen∣da.

Item, Ordinamus, & Sta∣tuimus, & Ordinationem il∣lam statutumque pro Nobis & Heredibus nostris in per∣petuum Voluimus firmiter observari, quod pro quacun∣que libertate quam Nos vel Veredes nostri de caeter•…•… concedimus, prefati Merca∣tores supra-scriptas Liber∣tates, vel earum aliquam non amittant.

Pro supradictis autem libertatibus & liberis con∣suetudinibus optinendis, & Priūs nostris remittendis eisdem saepedicti Mercato∣res universi & singuli pro se & omnibus alijs de parti∣bus suis, Nobis concordi∣ter & unanimiter concesse∣runt quod de quolibet Do∣lio vini quod adducent, vel adduci facient infra Reg∣num, & Potestatem nostram, & unde Marinariis frettum solvere tenebuntur, solvent Nobis & heredibus nostris nomine Custumae, duos So∣lidos ultra antiquas Custu∣mas 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 Mercato∣res, aut alij nomine ipso∣rum ement, & de Regno nostro educent, aut emi, & educi facient, solvent qua∣draginta Denarios de incre∣mento, ultra Custumam antiquam dimidiae Marcae

que prius fuerat persoluta: Et pro Lasto Coriorum ex∣tra Regnum, & Potestatem nostram vehendorum dimi∣diam Marcam, supra id quod ex antiqua Custuma antea solvebatur; Et simi∣liter de trescentis pellibus Lanutis, extra Regnum & Potestatem nostram, dedu∣cendis, quadraginta dena∣rios ultra certum illud quod de antiqua Custuma fuerat prius datum.

Item, duos Solidos de qualibet Scarleta, & panno tincto in grano.

Item, Decem & octo de∣narios de quolibet panuo in quo pars grani fuerit inter∣mixta.

Item, Duodecim dena∣rios de quolibet panno alio sine grano.

Item, Duodecim denarios de quolibet Cerae quintal∣lo.

Cumque de prefatis Mer∣catoribus nonnulli eorum alias exerceant Merchandi∣sas, ut de Aberio ponderis, & de alijs rebus, subtilibus

sicut de pannis Carsen. de Serico, de Cindatis, de Seta, & alijs diversis mer∣cibus, & de equis etiam, ac alijs animalibus Blado, & alijs rebus, & Merchandi∣sis, multimodis, que ad cer∣tam Custumam facile pon•…•… non poterunt, i•…•…dem Mer∣catores concesserunt dare Nobis, & Heredibus nostris de qualibet libra argenti estimationis seu valoris re∣rum, & Merchandisarum hu∣jusmodi quocunque nomine censeantur, tres denarios de libra in introitu rerum, & Merchandisarum ipsarum in Regnum, & Potestatem nostram predictam infra Ui∣ginti dies, postquam hujus∣modi Res & Merchand sae in Regnum & Potestatem nostram adducte, & etiam ibidem eroneratae, sive ven∣ditae fuerint; Et Similiter tres denarios de qualibet libra argenti in eductione quarumcunque rerum, & Merchandisarum hujusmo∣di •…•…mptarum in Regno, & Potestate nostra predictis, ultra Custumas antiquas nobis, aut alijs ante datas. Et super valore, & estima∣tione rerum & Merchandi

sarum hujusmodi, de quibus tres denarij de qualibet •…•…∣bra argenti sicut predicitur sunt solvendi; credatur eis per literas quas de Domi∣nis aut socijs suis ostendere poterunt, & si literas non habeant, Stetur in hac par∣te ipsorum Meccatorum si presentes fuerint, vel val∣lettorum suorum in eorun∣dem Mercatorum absentia juramentis.

Liceat insuper Socijs de Societate Mercatu∣rum predictorum infra Regnum, & Potestatem nostram predictam, la∣nas vendere alijs socijs suis, & similiter emere ab eisdem absque Custuma sol∣venda; ita tamen quod di∣ctae La•…•…ae ad tales manus non deveniant, quod Cu∣stuma nobis debita defrau∣d•…•…mur.

Et praeteria est scien∣dum, quod postquam saepe∣dicti Mercatores semel in uno loco infra Regnum & Potestatem nostram Custu∣mam

nobis concessam supe∣rius, pro Merchandisis suis in forma solverint supra∣dicta & suam habeant inde Warrantum, erunt liberi & quieti in omnibus alijs locis infra Regnum, & Po∣testatem nostram predictam, de solutione Custumae hu∣jusmodi pro eisdem Mer∣chandisis, seu mercimonijs per idem Warrantum, sive hujusmodi Merchandisae in∣fra Regnum, & Potestatem nostram remaneant, sive exterius deferantur, Ex∣ceptis vinis, que de Regno & Potestate nostra predictis, sine voluntate & licentia no∣stra sicut predictum est, nul∣latenus educantur.

Volumus autem ac pro Nobis & Heredibus nostris concedimus, quod nulla exactio, Prisa vel Prestatio, aut aliquod aliud onus su∣per personas Mercatorum predictorum, Merchandi∣sas, seu bona eorundem ali∣quatenus imponatur, con∣tra formam expressam su∣perius, & concessam.

〈◊〉〈◊〉 testibus venerabili∣bus Patribus Roberto Can∣tuariensi

Archiepiscopo to∣tius Angliae Primatae, Waltero Coventr. & Litchf. Episcopo, Henrie de Lacy, Comite Lincoln. Humfri∣do de Bohun Comite He∣reford. & Essex, ac Cor∣stabular. Angl. Adomar. de Valencia, Galfrido de Geyn∣vill, 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 * 2.6 Exported and Imported, granted by Act of Parliament for the life of the King. And are,

1. Ayds and Subsidies payable out of Native Com∣modies Exported and Imported.

2. Tunnage, which is a Subsidy out of Wines of all sorts; and Poundage, which is a Subsidy granted out of all Commodities Exported and Imported, except * 2.7 Wines and ancient Staple Commodities, and is the 20th part of the Merchandize, Imposts or Duties pay∣able 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 com∣monly called the Rates of Merchandize; that is to say, the Subsidy of Tonnage and Poundage, and the Sub∣sidy of Woollen Cloathes or old Drapery, and are sub∣scribed 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 Ma∣jesty 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 But∣lerage, * 2.8 which is 2 s. per Tun.

Rule, That all such Wines as shall be landed in any of the Out Ports, and Custome paid, and afterwards brought to the Port of London by Certificate, shall pay so much more Custome as they paid short of the Duty due in the Port of London.

For every Tun of Beer to be Exported in shipping * 2.9 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 * 2.10 Custome and Subsidy which are omitted in the Book of Rates, or are not now used to be brought in or car∣ried out, or by reason of the great diversity of the va∣lue 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, Comptrol∣ler and Surveyor, or any two of them.

XI. Every Englishman shall pay for every short * 2.11 Cloth containing in length not above 28 Yards, and in weight not above 64 l. white or coloured by him to be shipped and carried out of this Kingdom, Three shillings four pence, being after the rate of two far∣things 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 Stran∣ger shall pay for every short Cloth cont' in length not above 28 yards, and in weight not above 64 l. white or coloured by him to be shipped or carried out of this Kingdom, Six shillings eight pence, besides the old duty of one shilling and two pence.

And so after that rate for all other sorts of Clothes of greater length and weight; and for all sorts of lesser Clothes to be allowed to a short Cloth: That is to say,

Dorset and Somerset Dozens, Rudge washt, Cardi∣nals, Pin-whites, Straites, Statutes Stockbridge, Tavestock, seven of each sort shall be allowed to a short Cloth.

Tauntons, Bridgwaters, and Dunstars, the 5. not ex∣ceeding 64 l. in weight; Devon. Dozens containing 12 or 13 yards, in weight 13 l. Five to be allowed to a short Cloth.

Ordinary Pennystones, or Forrest Whites cont' be∣tween 12 or 13 yards, and in weight 28 pounds, Short∣ing Penystones cont' 13 or 14 yards, and in weight 35 pounds unfreized, Four to be allowed to a short Cloth.

Narrow Yorkshire Kersies Whites and Reds cont', not above 17 or 18 yards, and in weight 22 pound. Hampshire Ordinary Kersies, Newberry Whites, and other Kersies of like making cont' 24 yards, and in weight 28 l. Sorting Hamshire Kersies cont' 28 pound, and in weight 32 pound; Three of them to make a short Cloth.

Northern Dozens, single sorting Penystons cont', between 13 and 15 yards, and in weight 53 pound Frized, Two of them to make a short Cloth.

And the Northern Dozens double; one to be ac∣counted for a short Cloth.

All which shall go and be accounted for short Clothes, and shall pay after the rate of the short Cloth before rated, and for over weight 2. farthings and one half the pound.

The New sort of Cloth called the Spanish Cloth, otherwise Narrow List, Western Broad Cloth not ex∣ceeding 25 yards in length, and 43 pounds in weight, to be accounted two thirds of the short Cloth before rated.

And for every pound weight exceeding 43 pounds, two farthings and half a farthing the pound weight.

Cloth Rashes alias Cloth Serges cont' 30 yards weigh∣ing 40 pound, to be accounted two thirds of the short Cloth before rated.

And for every pound exceeding 40 pound weight, two farthings and half a farthing the pound weight.

And for any other sort of Woollen Cloth of the Old or New Drapery, and not mentioned in that Book, to pay two farthings and half a farthing the pound weight, And for any other sort of Woollen Cloth of the Old or New Drapery and not mentioned, is to pay 2 far∣things and half a farthing for the Subsidy of every pound thereof.

CHAP. XIII. Of Impositions Subsequent, Conditional, Temporary, &c.

• I. Of Impositions on the Manu∣factures of France by Lex ta∣lionis.
• II. On Vineger, Perry, Cider and Rape, Customes payable by Deni∣zens and Strangers, and Log∣wood made Importable.
• III. On Ships that have not two Decks, and 16 Guns.
• IV. On Salt, Beer, Cider, Perry, Vinegar, a further Duty.
• V. Of the Duty called Coynage, and upon what impos'd; and the Temporary Imposition called the Additional Duty.
• VI. Of Goods particular Import∣ed 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 cer∣tain Duties.
• X. Beer, &c. Exported; Skins, Leather, &c. Transportable, pay∣ing 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 * 2.12 above the same; That is to say, on all Ships belonging to the French King's Subjects, which shall lade or un∣lade any Goods in this Kingdome, or set on shore or take in any Passenger, to pay 10 s. per Tun; This was an Oliver for a Rowland, the French King having done us the like kindness, by imposing the value of 50 Solz * 2.13 on every English Ship; this complyment lasts but 3. 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, * 2.14 shall answer Six pounds ten shillings per Tun; if by Strangers, then but six pounds.

But if they shall Export, then Three pounds ten shil∣lings per Tun shall be repaid to the English, and Four * 2.15 pounds fifteen shillings to be repaid to strangers.

The Statute of Eliz. Cap. prohibiting the Im∣portation of Logwood Repealed; and the same may be Imported paying 5 l. per Tun: and in case of Exporta∣tion * 2.16 then to be repaid 4 l. per Tun.

III. The Parliament taking likewise again into con∣sideration the encouragement of Trading in Ships of force, have imposed on all Goods and Merchandize Im∣ported and Exported, from and to the Mediterranean Sea, beyond Malaga, in any Ship that hath not two Decks and 16 Pieces of Ordnance mounted, and two men to each Gun, to pay over and above the Rates im∣posed by the Book of Rates one per Cent'; This does not extend to Ships laden with Fish, or half laden with * 2.17 Fish and other Commodities.

V. So likewise on Salt out of Scotland into England, one half-penny per Gallon.

Again, There is imposed on Wines, Vinegar, Cider, and Beer, Ten shillings per Tun; and on Brandy and Strong Waters 20 s. per Tun. For the Coinage Duty, the moneys that arises on this Duty is to be paid at the Custome-House to the Collectors and other Officers, to be by them kept apart from all other Moneys, and paid Quarterly into the Exchequer without Salary or Fee: The Goods are forfeitable for non-payment of this Du∣ty; * 2.18 and the same is to be repaid if the Goods are tran∣sported within one year.

There is likewise an Imposition of 12 l. per Tun on * 2.19 Spanish Wines, and 8 l. per Tun on French Wines and Vinegar; but that is but temporary, and ends the 24^th of June, 1678.

VI. There is also Duties payable by Aliens for * 2.20 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 Tur∣key.

Note, That in all cases where petty Custome inwards is payable, it is to be understood of the fourth part of * 2.21 the full Subsidy according to the rates and value in the Book of Rates before the 5. per Cent. is deducted.

Note. Wines of all sorts Imported are to pay Aliens * 2.22 Duties.

Note. That the Nett Subsidy of Vinegar, Perry, Rape, Cider, and Cider-eager both in London and out * 2.23 Ports, is the same with the Subsidy of French Wines, payable in London.

VII. So likewise there is a further Imposition cal∣led Aliens Custome for all Fish, Fish Oyl, Blubber, Whale-bone, * 2.24 or Whale-fins, not being caught in vessels belong∣ing to Englishmen, are to pay double Strangers Cu∣stome.

So likewise Custome and Impost to be paid for seve∣ral * 2.25 sorts of salted or dryed Fish not imported in Ships English built, or belonging to England, and not having been stifled and caught in such Ships.

Upon which ACT, Note, That the 5. per Cent. is not * 2.26 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 * 2.27 Ale 6 s. per Barrel; Cyder or Perry the Tun ten shil∣lings; Brandy or Strong Waters perfectly made 8 d. per Gallon.

If any of those Goods be landed before those Duties be fully paid and Warrants signed, and without pre∣sence * 2.28

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 Naviga∣tion for his Majesties Plantations in lieu of all Custome, shall pay onely for one Chaldron of New-Castle Mea∣sure * 2.29 1 s. 8 d. For one Chaldron London Measure 1 s. Provided good Security be given for landing the said Coales accordingly.

There are likewise several Native Commodities and * 2.30 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 * 2.31 Mum to be Exported, to pay 1 s. per Tun and no more; But this is but tempore for 6. years.

So likewise Leather of all sorts, Sheep-skins, Calve-skins, Tanned or dressed, non obstante any former Law, paying for each hundred weight cont' 112 l. weight one shilling and no more: This ends in 25th. of March, 1675. and both of them to the end of the next * 2.32 Sessions of Parliament after.

Likewise all sorts of Forraign Coyn or Bullion of Gold or Silver may be Exported without paying any * 2.33 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 la∣ding thereof they give notice to the Commissioners or * 2.34 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 3. of them for the Importing the same.

Note. If Goods are Wreck't, and the Lord seizes them, yet they ought not to pay Custome. * 2.35

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 Cu∣stomes 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 * 2.36 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 Coc∣quets, 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 Adventu∣rers being many, the Table of Fees does not hinder; but the Officers and Waiters may receive such gratuity as the Company shall voluntarily give.

All Goods under the value of 5 l. in the Book of Rates paying Subsidy the sum of 5 s. or less, shall pass with∣out payment of Fee.

English Merchants that shall land out of one Ship at one time (although the receipt of the Subsidy be distri∣buted 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 40 s, then full Fees.

The Merchant shall pay for all Goods opening that shall be short entred above 10 s. Custome.

The Merchant shall pay for weighing of all Goods shall be short entred above 20 s. Custome.

The Merchant is not to be at any charge if duly En∣tred.

XIV. There is likewise to be allowed to the Mer∣chants a certain abatement called Tare, for Goods and * 2.37 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 Col∣lector himself, giving speedy notice to the Commission∣ers 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 Sca∣vage 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 Por∣ters, what Duties Strangers are to pay for shipping out their Goods.
• VII. Of Ports, Members and Creeks, what are meant and un∣derstood by them as in reference to action, lawful or unlaw∣ful.
• VIII. The several Ports, Mem∣bers and Creeks in England and Wales.
• IX. Of the Extent of the Port of London.
• X. Of the several Keyes, Wharfs and other placès lawfull for landing of Goods.
• XII. What Goods are Excepted which may be shipped or landed at other places.

I. SCavage is an ancient Toll or Custome exacted by Majors, Sheriffs, &c. of Merchant Strangers for Wares shewed or offered to sale within their precincts, which is prohibited by the Statute of 19 H. 7. cap. 8. in a Charter of King Henry the Second to Canterbury, it is written Scewinga.

The City of London still retain the Custome, of which in an old printed Book of the Customes of London it is there mentioned, and how to be disposed; of which Custome, halfen del apperteyneth to the Sherriffs, and the other halfen del to the Nostys, in whose houses the

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 requi∣red of Aliens: And that all persons subject to such * 2.38 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 In∣wards and Outwards.

III. Note. All Goods mentioned in the Table of * 2.39 Scavage, and not mentioned in the Table of Rates, shall pay after the rate of one penny in the pound, accord∣ing 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 va∣lue.

Note. That all private Baulks 8. Inches square and upwards, are by the 23. Article annexed to the Book of Rates reputed Timber, and valued at 3 d. the foot, 50 Foot making one Load, the value of which is 12 s. 6 d; and the Subsidy for one Load ⅝ of one penny, or one half penny and half one farthing, out of which the 5 per Cent. is to be deducted.

IV. There is likewise another Duty called Package, the which is likewise set and rated in a Table, and the which is taken of all the several Commodities therein mentioned.

All Goods not mentioned in that Table are to pay for Package Duties, after the rate of one penny in the pound, according as they are expressed or valued in his Majesties Book of Rates, and all others not ex∣pressed

therein shall pay the same rate according to their true value.

For every Entry in the Packer's Book for writing Bills to each entry outward as usually they have done, 12 d.

The Strangers are to pay the labouring Porters for making up their Goods, at their own charge, as alwayes they have done.

Strangers are likewise to pay the Water-side Porters belonging to the Package Office, such Fees and Duties for Landing and Shipping their Goods, as they usually have done within these 10 years.

The Packers Water-side Porters have Tables of Du∣ties for landing of Strangers Goods, and for the ship∣ing 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 * 2.40 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 Cu∣stome-House hath been kept, and Officers or their De∣puties 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 du∣ty 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 * 2.41 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, contain∣ing the Coast of Nor∣thumberland, border∣ing on Scotland.
Carlisle.		West Marches, contain∣ing the Coast of Cum∣berland, 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 can∣not hold Jurisdiction of any thing done in them. Hol∣lands Case, Earl of Exeter, 30 H. 6. And because he held Plea in the Admiralty of a thing done infra Portum de Hull, damages were recovered against him 2000 pounds. Vide Mich. 12 Jac. C. B. Greenway vers' Barber, Godbolt 260, 261.

IX. In regard that the Port of London is of great concern as in relation to the Customes, the extent and * 2.42 limits of the same Port is by the Exchequer settled, which is declared to extend and be accounted, from the Pro∣montory 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, be∣yond the Gunfleet upon the Coast of Essex, and so con∣tinued 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, li∣berty 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 be∣longing 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 land∣ing of Goods and Merchandizes at several blind or un∣known 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 Commis∣sion 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.
• * 2.43 Custome-House Key.
• Porters Key.
• Bear Key.
• † 2.44Sabbs Dock.
• Wiggons Key.
• Youngs Key.
• Ralphs Key.
• * 2.45Dice Key.
• ...

• Smart Key,
• † 2.46Somers Key,
• Lyon Key,
• Butolph Wharfe,
• H•…•…mons Key,
• * 2.47Gaunts Key.
• Cocks Key.* 2.48
• Fresh Wharfe.
• Billingsgate.To be a common open place for the land∣ing or bringing in of Fish, Salt, Vic∣tuals, or Fuel of all sorts, and all Native Materials for Building, and for Fruit (all manner of Grocery ex∣cepted), 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 parti∣cular 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 Cu∣stomes, 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 notwith∣standing 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 Ex∣ported, what of the Customes shall be repaid back, and by whom; and of the things requi∣site in the same.
• III. Of Agreement or Contracts made or to be made for the im∣porting 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 Ex∣ported discharged of Custome.
• VIII. What Allowances are to be made for Leakage.
• IX. What shall be accounted Leak∣age.
• X. Wines proving unmerchantable, what allowances to be made.
• XI. Tobaccoes receiving detri∣ment or damage in the Importa∣tion, what allowances to be made.
• XII. Strangers paying double Subsidy, where they shall pay double Custome.
• XIII. Of Times and places law∣ful to unlade▪ and Officers Du∣ties then attendant to be pre∣sent.
• XIV. York, New-Castle and Hull men where Custome-free, and for what.
• XV. Exceter and other Western men, what Free Subsidies shall be allowed in.
• XVI. Woollen where new or Old what allowances shall be made in Custome or Subsidy.
• XVII. Allowances of 5. in the Hundred for all other Goods.
• XVIII. The Customers and other Officers Duties in reference to attend their several Duties in the Customes.
• XIX. Of Officers their Duties, and the punishments where made on complaint.
• XX. The several Duties of Lon∣don how preserved.
• XXI. The like for other Cities for those Duties granted or taken for publique good uses.
• XXII. Where Ships may be visi∣ted, and the Officers duty re∣lating 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 Al∣giere Duty and all other allow∣ances, 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 allowan∣ces 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 quan∣tities then is contained in the Certificate, what operation the same hath.

1. EVery Merchant shall have free liberty to break Bulk in any Port allowed by Law, and to pay * 2.49 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 con∣tents of his Ships lading, and shall likewise after declare upon his Oath, before the Customer, Collector, Comptroler, Surveyor, or any two of them at the next Port of this Kingdome where his Ship shall arrive, the Quantity and Quality of the Goods landed at the other Port where Bulk was first broken, and to whom they did belong.

A Merchant brought 80 Tun of Bay Salt by Sea to a Port in England, and out of that ship sold 20 Tun, and discharged the same into another Ship then riding at the same Port, but the 20 Tun were never actually put on shoare, and for the rest being 60 Tun the Ma∣ster agreed for the Customes and put them on land; and * 2.50 although that that 20 Tun was alwayes water-born and never were put on shoare, yet adjudged they ought to pay; the reason was, for the discharging them out of the Ship, amounts as much as to the laying them on Land, the same being done in Port; for otherwise the King would meerly be defrauded. But if a Ship is carried in by storm, and to preserve the Vessel part is * 2.51 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 with∣in

12 months, and such Merchant and Merchants as shall Export any such Forraign Goods or Merchandi∣zes (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 Cer∣tificate 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 Mer∣chants 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 addi∣tional duty of Silk, Linnen and Tobacco as before is di∣rected.

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 * 2.52 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 Stran∣gers 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 Stran∣gers or Factors for any Forraign Goods and Merchan∣dizes, 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 Com∣position,

and not to be excluded from any other privi∣ledge whatsoever granted to the stranger by any pri∣vate agreement or composition, under the same Con∣dition and with the same Restriction as shall be made with the Merchant Stranger.

IV. Every Merchant as well English as Stranger that shall ship and export any kind of Wines which formerly have paid all the duties of Tunnage inwards, shall ha•…•…e paid and allowed unto them all the Duties of Tunnage paid inward, except to the Englishman 20 s. per Tun, and the Stranger 25 s. per Tun, upon due proof of the due Entry and payment of Tunnage inwards and of the shipping thereof to be Exported to be made as above.

V. If any Merchant, Denizen or Stranger shall Ex∣port any Spanish or Forraign Wooll, he shall have li∣berty * 2.53 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 King∣dome 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 for∣merly were duly entred and paid the Subsidy and Custome inwards, shall have allowed and repaid unto them respectively all the Custome and Subsidy paid in∣wards for the same, except 1 s. 6 d. for every Hundred weight to the English, and 1 s. 8 d. and one half penny for every Hundred weight to the Stranger, upon due proof of the due Entry and payment of the Custome and Subsidy thereof inwards, and of the Shipping thereof to be Exported to be made as in the second Article.

VII. If any Merchant having duly paid all Duties inwards for Forraign Goods, and in regard of bad sales shall be enforced to keep the same or any part

thereof in his hands after the space of a year shall be elapsed; in this case he or any other person is to be permitted to ship the same out for parts beyond the Seas if they think fit without payment for any Subsidy for the same outwards, upon due proof that the same was duly entred and Subsidy paid inward.

VIII. Every Merchant bringing in any sort of Wines into this Kingdome by way of Merchandize, and shall make due Entries of the same in the Custom-house, shall be allowed 12 per Cent. for Leakage.

IX. Every Hogshead of Wine which shall be run out and not full seven Inches, shall be accounted for outs, and the Merchant to pay no Subsidy for the same.

And by some is conceived that no freight shall be paid for the same, but the Merchant may fling them up to * 2.54 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 misfor∣tune, it would seem hard; however, it is pity Opi∣nion in this case should amount to a laudable Cu∣stome.

X. If any Wines shall prove corrupt and unmer∣chantable, 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 prin∣cipal 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 Mer∣chants experienced in the values of such Goods, who upon visiting of such goods, shall certifie and declare * 2.55 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 Sub∣sidy due for the same.

XII. All Merchants Strangers who according to * 2.56 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 Na∣tive 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 Mer∣catoria, 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 † 2.57 and lading of Goods between the Tower of London, and Lon∣don-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, gi∣ving notice thereof to the respective Officers appointed to attend the lading and unlading of Goods; and such Officer as shall refuse upon due calling to be p•…•…sent, he shall forfeit for every default 5 l. the one 〈◊〉〈◊〉 to the King, the other to the party agrieved, he suing for the same.

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 * 2.58 Woollen whether new or old Drapery, as also all Bayes and Cottons, shall be allowed one in ten for a Wrapper free of Custome and Subsidy.

XVII. Every Merchant shall be allowed upon all other Goods and Merchandize appointed to pay to any the Subsidy of Poundage according to the Rate in the Book of Values, to be Imported, 5. in the Hundred of all the said Subsidies of Poundage so appointed to be paid.

XVIII. The Officers who sit above in the Custome-House of the Port of London, shall attend the service of their several places from 9. to 12 of the Forenoon, and one Officer or one able Clerk shall attend with the Book in the Afternoon during such time as the Offi∣cers 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 Mer∣chants and Ships, between the hours of 9. and 12; and 2. and 4. 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 admo∣nished of his Duty; but if the Clerk be found faulty therein, he shall upon complaint to the said chief Offi∣cers be presently discharged of his Service, and not per∣mitted 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 Li∣berties 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 ta∣ken by any City or Town Corporate their Farmers, Deputies or Officers, under the name of Town Cu∣stome 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 out∣ward bound, but shall not without just and reasonable cause detain any Ship under colour of searching the

Goods therein laden above 3. Tydes after her arrival at Gravesend, under pain of loss of their Office, and ren∣dring 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 rea∣sonable cause detain such Ship under colour of search∣ing the Goods therein laden above one Tyde after the said Ship is fully laden and ready to set sayl, under pain of loss of the Office of such offender, and rendring damage to the Merchant and Owner of the Ship.

XXIII. All Timber in balks which shall be of 8. inches square or upwards that shall be imported or brought from any part beyond the Seas into the Realm of England, Dominion of Wales, Port and Town of Ber∣wick, or any of them, shall be rated according to the measure of Timber the foot square 3. d. for the value thereof, and according to that rate shall pay for Subsidy 12 d. in the pound according to Poundage; and all under eight inches square, and above 5 inches square, shall pay for Subsidy according to the Rates mentioned in the Book of Rates for middle Balks, and all of 5. inches square or under shall pay according to the rate of small Balkes.

XXIV. For avoiding of all oppressions by any the Officers of the Customes in any Port of this Kingdom, in exacting unreasonable Fees from the Merchant by reason of any Entries or otherwise touching the ship∣ing 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 esta∣blished 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 unca∣pable of any office in the Custom-House.

XXV. All Fees appointed to be paid unto the Custo∣mer,

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 Certi∣ficate above in the Custom-House; and after the Mer∣chant 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 Par∣liament, 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 con∣trary notwithstanding. Nevertheless the duty of Prizage and Butlerage, and the duty of 12 d. of every Chaldron of Sea-Coal exported from Newcastle upon Tyne to any other Port or Ports of this Realm, shall be continued.

XXVII. If any Merchant Denizen born shall happen to have his Goods and Merchandize taken by Enemies * 2.59 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 al∣lowed 10 per Cent. for so much as he shall pay down.

XXVIII. Ships of Warr may be entred and searched * 2.60 for prohibited and uncustomed Goods, and to bring them a shoar to the Kings Ware-houses, and the Com∣missioners

or Head Officers may leave aboard Officers to look after them, that none be unladen or imbezelled, on pain of forfeiturc of 100 l. And if Goods are con∣cealed a shipboard after such time as the Ship is cleared, to forfeit 100 l; and then any with a Writ of Assistance out of the Court of Exchequer to go in the day time to any place, and enter and seize.

Goods conveyed secretly into Ships and carried away without paying the Subsidy and Duties, the Owners and Proprieters forfeit the double value, except Coals, which only forfeit the double Custome and Duty.

XXIX. There are allowances to be given Mer∣chants for defective and damag'd Goods of 5 per Cent. on all Goods imported, and 12 per Cent. on all Wines to be allowed upon debentures; but if they shall ship out less then is in the Certificate, then the Goods there∣in 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 allow∣ances 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 there∣fore if such Merchandize shall be Transported out in any Gally or Carrack, they are obliged to pay all man∣ner 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 † 2.61 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 Ca∣lamities which she hath suffered by the loss and Death of her nearest Relations, in his Majesty and his Royal Fa∣thers 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 Exe∣cution by agreement, and Composition with her Depu∣ties 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 Uti∣lity excepted tacitly in the pri∣mitive 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 re∣ference to Goods and Merchan∣dize.
• IV. If Passage admitted, whe∣ther 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 ob∣served 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 Im∣position the King of his Prerogative may impose on Strangers and their Goods passing thorough his Ter∣ritories 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 harm∣less Utility; For why should not one (saith * 2.62 Cicero) when without his own detriment he may communicate to another in those things that are profitable to the Re∣ceiver, and to the Giver not chargeable. Therefore Seneca † 2.63 saith it cannot be called a benefit to give leave to another to light his Fire by yours. We read in Plu∣tarch

it is not lawful to spoyl our Victuals when we have more then enough, nor to stop nor hide a Foun∣tain 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 Do∣minion or Royalty it runs, and they may make a Mill on it, (unless it be Common as a High-way) and may * 2.64 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, * 2.65 or because they desire Commerce with remote Nations; The reason here is the same which hath been mention∣ed * 2.66 elsewhere, because Dominion might be introdu∣ced with a reception of such use † 2.67 which profits these, and hurts not those, and therefore the Authors of Do∣minion 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 * 2.68 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 inter∣dict 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 * 2.69 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 Mer∣chandize also, for no man hath Right † 2.70 willfully to ob∣struct 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 discom∣modious to any one, and to that purpose Philo speaks; * 2.71 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 * 2.72 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 correspon∣dence; it supplyes our wants with mutual ayd, and by ex∣change of things needful it procures fellowship and friend∣ship. 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 ha∣ving 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 ne∣vertheless the Passengers are subject to such Restricti∣ons, 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 abso∣lute 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 * 2.73 on the same; neither can Poll-money put on the Inha∣bitants 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, * 2.74 there indeed some compensa∣tion may be laid upon the Commodities or Ships pas∣sing thorough, so that the measure of the cause be not exceeded; Or as my Lord Coke observes in the case of the Halage money, † 2.75 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; * 2.76 And the King of England may do the like in the Cham∣bers 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 Commo∣dities, * 2.77 which to avoid the compassing of Malea were carried by Land from Sea to Sea. So the Romans re∣ceived a price for the passage of the Rhine. But this Right of imposing on Ships and Goods passing tho∣rough 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.

Notes

• * 1.1

  Aretin. post Joan. Faber. in §. item exer∣citor. num. 3. Instit. de oblig. quae ex quasi delict.
• * 1.2

  Leg. Fin. C. §. pro Socio & poss. inst. & D. cod.
• * 1.3

  Leg. in hoc parg. si conveniat pro Sco.
• * 1.4

  Bart. & Paul. in leg. hec distinctio §. cum fundum. ff. locat.
• * 1.5

  Such Vessels when Freight ed our against the grain of some of the Part-Owners, the same is under such Provisoes, Cautions and Limita∣tions as the Law in that case requires.
• * 1.6

  Gloss. Leg. si navis & juris in leg. utiq. para. culpae dè rei undic. & leg. arboribus. §. navis de usu fruct.
• * 1.7

  Leg. non aliter F. de usu & habi.
• † 1.8

  Co. 4. Inst. 146.
• * 1.9

  Hill 23 Car. 2. B. R. Morse versus Slue.
• * 1.10

  18 H. 6. num. 52.
• † 1.11

  Naut•…•… Caup. Stab. leg. 1. Sect. 3.
• † 1.12

  Hill. 26, 27 Car 2. in B. R. Stanley versus Ayles.
• * 1.13

  Leg. inter•…•…sti∣pulantem in §. Sacram. ff. de ver. oblig.
• * 1.14

  Leg. quod in §. sin. F. de leg.
• * 1.15

  Leg. Musius ff. de rei venic'. 〈◊〉〈◊〉
• * 1.16

  ff. lib. 6. tit. 〈◊〉〈◊〉. leg. 61.
• * 1.17

  Leg. si ex meis. ff. de acq. rer. dom. & leg. si convenerit §. si quis sic ff. de pign. act.
• * 1.18

  Leg. Marcellus in §. armamen∣ta ff. de re vin∣dicat.
• * 1.19

  Trin. 3 Jac. B. R. Rolls 1. part, Abridg. fo. 530. Bald. in leg. cum proponas Code de nautic. e fenore num. 6.
• * 1.20

  Mich. 13 Jac. in B. R. Sir Rich. Bingley's Case. Rolls Abridg fo. 530
• * 1.21

  Dig. lib. 14. tit. 1. §. 17.
• * 1.22

  Bridgemans Case, Hobart, fo. 10, 11.
• * 1.23

  Gloss. Affrican. super cod. leg. & §.
• * 1.24

  Dig. lib. 6. tit. 1. 62. & l. 7. tit. 1. 12. §. 1. & Pa∣pinion on the same Law.
• * 1.25

  Digest. lib. 19. tit. 2. 61. Scaevola on the same Law.
• * 1.26

  Leg. 1. de ex∣ercit. Act.
• * 1.27

  Hob. Rep. fo. 11. Bridgeman's Case.
• * 1.28

  Dowda•…•…'s case.
• * 1.29

  Coke lib 6. fo. 47.
• * 1.30

  F. Naut. caup. stab. leg. 1. Sect. 2, 3, 6, 7.
• * 1.31

  The which the Civil Law does some∣times allow.
• * 1.32

  Morse versus Slue, Hill. 23 Car. 2. Re∣gis, adjudged on a Special Verdict found at the Barr.
• * 1.33

  Debet Exercitor omnium nauta∣rum suorum sivi liberi sint, sive servi fa∣ctum praestare, nes immerito factum eorum praestat cum ipse eos suo periculo adhibuerit sed non alias praestat quam iu ipsam nave damnum datum sit, caeterum, si extra navim licet à nautis non praestabit, Naut. Caup. Stabilit. Leg. 1. Sect. 7. debet exercitor.
• * 1.34

  Eod. Leg. debet Exercitor.
• * 1.35

  Digest. lib. 9. 〈◊〉〈◊〉. tit. Leg. 61. 〈◊〉〈◊〉
• † 1.36

  Leg. Oleron. Judg'. 2.
• * 1.37

  Stat. 18 H. 6. cap. 8.
• * 1.38

  l. ult. ad Leg. Rhod. & leg. quum proponas C de Naut. foenor.
• * 1.39

  Stat. 4 H. 4. 20. Leg. fin. parag. si propter neces∣sitatem.
• * 1.40

  Stat. 15 H. 6. cap.
• * 1.41

  19 Eliz. cap. 9. 12 P. & M. 5. 1 Jac. cap. 25.
• * 1.42

  Proclama∣tion 25 Sept. 26 Car. 2. Per leg. quum propouas ad leg. Rhod. D. leg. in fin. & leg. si ven∣dita peric. rei vend. & leg. 5. & 6. Naut. Caup.
• * 1.43

  Stat. 16 Car. 2. cap. 8.
• * 1.44

  Morse versus Slue, 23 Car. in B. R. Rott.
• * 1.45

  13 R. 2. cap. 9.
• * 1.46

  Leg. 1. Cod. de Navib. non ex∣cusand.
• * 1.47

  Secund. sin. leg. ult. ad leg. Rhod. & leg. quum proponas C. de Naut. soenor.
• * 1.48

  Leg. Oleron. 24. Per Leg. quant. de Pub.
• * 1.49

  Coke lib. En∣tries, fo. 3.
• * 1.50

  Pasch. 26 Car. rul'd at Guild-Hall before L. C. J. Hale, inter and Peacock.
• * 1.51

  18 Eliz. cap. 9. 14 Car. 2. cap. 11.
• * 1.52

  Digest. l. cum in debito ff. de Probat.
• * 1.53

  Li. 1. Cod. de Navibus non excusand.
• * 1.54

  Recepit salvum fore, utrum si in navim, res mis∣sae ei assignatae sint, an et si non sint è assignatae, hoc tamen ipso quod in navim missae, sint re∣ceptae videntur et omnium rece∣pit custodiam quae in navim illotae sunt et factum non so∣lum nautarum praestare debet sed et rectorum. F. Nautae Caup. stab. leg. 1. Sect. recepit.
• * 1.55

  Leg. Oleron. Cap. 22. Bridgeman's Case, Hobart, fo. 10, 11.
• * 1.56

  Leg. Oleron Cap. 1. 12.
• * 1.57

  Judgment Ole∣ron. Cap. 22.
• * 1.58

  Judgement, Oleron. Cap. 3.
• * 1.59

  Leg. Oleron cap. 22.
• * 1.60

  The like pro∣vision on the like penalty is for Goods of Muscovy, and of the Domi∣nions and Territories of the Great Czar or Emperour. So likewise of Currants be∣longing to the Othoman Ter∣ritories or Dominions.
• * 1.61

  Note, In cases of sickness, Death, Capti∣vity, Salves the Clause as to Marriners.
• * 1.62

  That is, those that do not belong to English, Irish, Welsh, or those of Jersey or Guernsey.
• * 1.63

  12 Car 2. cap. 18.
• * 1.64

  12 Car. 2. Cap. 18.
• * 1.65

  14 Car. 2. cap. 11. 12 Car. cap. 18.
• * 1.66

  Leg. 1. & Pa∣sim' ad leg. Rhod. & l. 1. Parag. 2. Naut. Caupo.
• * 1.67

  Vid. leg. Con∣sol.
• * 1.68

  The Father was of Phala∣gonia, as Eg∣natius Vola teranus ob∣serves, lib. 23.
• * 1.69

  Ill Consolato & per Stat. 14 Car. 2. Cap. 11.
• * 1.70

  Eudeum ad leg. 1. Naut. Caup. tot.
• * 1.71

  Per Leg. Ole∣ron, Chap. 6.
• * 1.72

  Per Leg. 1. de exerc. act. & l. in fin. Naut. Caup.
• * 1.73

  Per Leg. Oleron cap. 14.
• * 1.74

  Per Leg. Ole∣ron, Cap. 13. as per Leg. Denmarke.
• * 1.75

  leg. nemo de Reg. jur. & leg. plerum{que} de in jus voc.
• * 1.76

  Leg. Oleron Cap. 5.
• * 1.77

  Leg. Oleron Cap. 7.
• * 1.78

  Leg. Oleron, Cap. 11.
• * 1.79

  Leg. Oleron, Cap. 13.
• * 1.80

  Consolat. del Mare.
• * 1.81

  Trin. 7 Jac. B. R. Abr. Rolls, fo. 530.
• * 1.82

  Not but they may, notwith∣standing the Resolutions of 8 Car. Cro. 3. Reports, which are not now taken to be Law.
• * 1.83

  Jones versus the Poor Mar∣riners. Winch. Rep.
• * 1.84

  Sitwell & al' Owners of a Ship, versus Love & al'. Mich. 27 Car. in B. R.
• * 1.85

  Latch fo. 11. Hill. 1 Car. in B. R. Godfrey's Case.
• * 1.86

  leg. oleron,
• * 1.87

  Pasch. 27 Car. in B. R. Capr. Pidgeon adsect Argoe.
• * 1.88

  Leg. Oleron, Cap. 13.
• * 1.89

  Per Leg. Oleron Cap. 18.
• * 1.90

  Justit. de ob. quae ex dilect. §. Fin.
• * 1.91

  Pasch. 11 Jac, in B. R. Hernes versus Smith. Rolls Abridg. 530.
• * 1.92

  Naut. caup. Stab. Leg. 1. Sect. 3, 6, & 7. Morse versus Slue. Pasch. 23 Car. 2. in B. R.
• * 1.93

  Gloss. super •…•…od. Sect. verb. & factum.
• * 1.94

  Brevia Regis in Turri London. Trin. Anno 24 E. 3. num. 45. Bristol.
• * 1.95

  The Judgment in this case is according to Law, & ought not to have been a Capia∣tur; for it is not such a Trespass as the King is entitled to a Fine. Vide 2 Cro. 224. Beedle versus Morris, 7 Jac. Co. Entries the same, 347.
• * 1.96

  Leg. 1. in fin. Naut. Caup. per leg. itaque de furlis.
• * 1.97

  Eod. Leg. in fin. Naut. Caup. & p•…•…r Leg, ita{que} de eod. edict.
• * 1.98

  Bartol. & Ja∣son in leg. non solum §. mortem. de no•…•… oper.
• * 1.99

  Brand versus Glasses, Sir Francis Moore Trin. 25 Eliz. in the Exche∣quer.
• * 1.100

  Vide the same Book, Mich. 7 Eliz. post. W•…•…rley's case.
• * 1.101

  21 E. 3. Cottons Abridgment of the Parliament Records, fo. 63
• * 1.102

  Naut. Caupo. ftab. &c. Leg. 1. §. quamcun{que} vim.
• * 1.103

  Si quis navem conduxerit in∣strumenat con∣signata sunto, Pekieus Com. ad leg. Rhod. Art. 20.
• * 1.104

  Per Leg. Naval. Rhod. Artic. 19.
• * 1.105

  Mich. 10 Car. in B. R. Lang∣don and Stocks case. 1 Cro. fo. 279. Per Leg. item. §. Si in leg. loca.
• * 1.106

  Mich. 10 Car. in B. 〈◊〉〈◊〉. Lang∣don and Stocks case, Cro. 1. part, 279.
• * 1.107

  Per Leg. si ex conducto & leg. si item fundus & leg. haec distinctio.
• * 1.108

  Per Leg. Oleron. Cap. 21.
• * 1.109

  Artic. 25. Le∣gum Navalium, Art. 29. eod.
• * 1.110

  Rich versus Kneeland, Cro. 2. part.
• * 1.111

  Ad Leg. Rhod.
• * 1.112

  Judg. Oleron. Leg. ult. ad ad Rhod.
• * 1.113

  Digest. Paulus, l. 14. 2. §. 10.
• * 1.114

  Leg. qui Romae 〈◊〉〈◊〉. Cllimachus, 〈◊〉〈◊〉. de verb. obl.
• * 1.115

  Ang. Alex. & Jason in di•…•…. §. Callimachus.
• * 1.116

  Leg. Relagati ff. de poenis & Leg. ult. ff. de S•…•…p. vi•…•….
• * 1.117

  Trin. 9 Jac. in C. B. Rott. 638. Bright versus Cooper, Brownlow 1. part.
• * 1.118

  Co. 1. part, 97. Shelley's case. Reniger and Fogassas case. Plowden Com. But a Pyrat is not an Enemy. Vide Chap. Pyracy. Leg. Si quis Cod. de Justit. & substic.
• * 1.119

  Arg. Leg. Ssite ff. de annis le∣gatis & leg. illis libertis i•…•… fin. ff. do con∣dit, & demon. Arg. 7. Leg. qui ope∣ras & leg. fi∣aedes §. cum quidam & §. •…•…n. ff. locati. Leg. sed & ad∣des in §. Si quis mulirem 〈◊〉〈◊〉▪ locat.
• * 1.120

  There are 3. Bills of Lading alwayes made, the one to be sent over Se•…•… to him to whom the Goods are consigned to, the other for the Master, and the last for the Merchant or Lader.
• * 1.121

  Leg. penult. §. novem F. de lo∣cat.
• * 1.122

  Trin. 9 Jae. B. R. Bright versus Cowper, Brownlow, 1. part.
• * 1.123

  Leg. Oleroon. Leg. Naval. Rhod. Art. 25.
• * 1.124

  Leg. Oleroon.
• * 1.125

  Leg. Consolat, del Mar.
• * 1.126

  Bald. in leg. certi juris in 4. Q. in verb. Quid ergo Cod. locat.
• * 1.127

  Hill. 26, 27 Car. 2. in B. R. Stanley versus Ayles.
• * 1.128

  7 R. 2. Statham Abridg. 54.
• * 1.129

  In Jurae Post∣liminij leg. retor'. & leg. in bello §. 1.
• * 1.130

  bovce versus Cole 〈◊〉〈◊〉' & Cole jun', Hill' 26, 27 Car. 2. in B. R.
• * 1.131

  When such a misfortune happens, the Ensured com∣mōly transfer those Goods over to the As•…•…urors who take them to∣wards satisfa∣ction of what they pay by vertue of their subscriptions.
• * 1.132

  Co. 4. Inst. 146.
• * 1.133

  Johannes Loci∣nius lib. 3. Cap. 8.
• * 1.134

  Scudamore & al' versus Pit∣man. Trin. 29 Eliz. in B. R. cited in Co. 2. Inst. fo. 673.
• * 1.135

  L. ne quid ff. de incendio ruina & naufragio.
• * 1.136

  Leg. 44. D. de adq. ver. dom.
• * 1.137

  Per le Judg∣ment Oleron, Cap. 26, & 47.
• * 1.138

  Leg. 1. lib. 11. C. de Naufra∣gijs.
• * 1.139

  Leg. 1. in pr. de incend. ruin. leg. in eum cum auth. seq. de surt.
• * 1.140

  Leg. 3. in sin. de incend. ru. nauf.
• * 1.141

  Leg. pedibus cod.
• * 1.142

  Arg. leg. suc∣curlarij de Extrod. Crim.
• * 1.143

  Per leg. incend. ruin. Naufrag. Leg. ne piscator.
• * 1.144

  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.
• * 1.145

  Per Leg. Oleron Cap. 47.
• * 1.146

  Westm. 1. c. 4. § E. 1. Naufragia ad publicanos pertinento.
• * 1.147

  Custm. Norm. Cap. 17.
• * 1.148

  37 Leg. Naval. Rhod. & 40.
• * 1.149

  Sir Henry Con∣stables case, Coke 5. part, fo. 107.
• * 1.150

  Faber & alij inst. de rer. divis. Sect. pen.
• * 1.151

  Leg. 7. D. pro derelicto.
• * 1.152

  46 E. 3. 15. F. N. B. 112. Anth. Omnes peregrini com∣munia de suc∣cessionibus ac. per Leg. Oleron.
• * 1.153

  Co. 5. part, 107.
• * 1.154

  Co. 2. Inst. 167.
• * 1.155

  Leg. 8. D. ad leg. Rhod. de jactu.
• * 1.156

  S R. 2. Pro Willielmo Fishlake. Co. 2. Inst. 167. Leg. 43. §. 11. D. de surt.
• * 1.157

  Pl. Com. 466.
• * 1.158

  F. N. B. fo. 12.
• * 1.159

  DD. diplo. & de Off. Admir.
• * 1.160

  Left unresol∣ved in Moore, fo. 24. But since adjudg∣ed Trin. 24 Car. in C. B. upon a Special Verdict found at St. Edmonds-Bury in Suffolk.
• * 1.161

  The very words of the Lord Howard's Patent, in 28 Eliz. in Rott. Admir. m. 10.
• * 1.162

  1 E. 2. m. 6. num. 6.
• * 1.163

  Pat. 20 E. 2. m. 10. intus pro Edwardo fil. Regis.
• * 1.164

  Inquisitiones de Anno 47 H. 3. num. 32.
• * 1.165

  Leg. 3. §. 〈◊〉〈◊〉. D. Naut. Caup. St. l. 1. §. 4. D. de obl. & act. leg. 26. §. 6. D. mand.
• * 1.166

  Quia vis ma∣jor providen∣tiam & industriam humanam superat, nesi culpa casum praecesserit.
• * 1.167

  Leg. Rhod. de jact'.
• * 1.168

  Leg. Oleron. Cap. 8.
• * 1.169

  Leg. Consolate del Mare.
• * 1.170

  Leg. Wisbicens. Artic. 38, 39.
• * 1.171

  Leges Guliel. 1. & H. 1. c. 98. de pactis ad legem Rhodiam.
• * 1.172

  Selden ad Ead∣merum & Notae & Spici legium fo. 183. Whelock de Priscis Anglo∣rum legibus, fo. 167.
• * 1.173

  Leg. 1. & 2. ad leg. Rhod. & leg. Oleron.
• * 1.174

  Leg. Wisbicens. Artic. 20, 21.
• * 1.175

  12 Jac. in B. R. Bulstrod. 2 part, 290. Bird ver∣sus Astcot.
• * 1.176

  Leg. 1. ff. de exercitoria action.
• * 1.177

  L. amissae & Oleron.
• * 1.178

  Johannes Loci∣nius lib. 2. cap. 7. de jactu. & 8. de con∣tributione.
• * 1.179

  Leg. 1. de Del mal. except. & leg. Si non sor∣tem de cond. in de.
• * 1.180

  Leg. Navis 4. ad leg. Rhod. And Vinius Commentary, fo. 235.
• * 1.181

  Leg. 9. §. 3. ad exhib.
• * 1.182

  L. 1. verse. quod convenit depos.
• * 1.183

  Leg. quem ad modum parag. Si navis ad leg. Aquiliae.
• * 1.184

  Eod. Leg. 18 H. 6. num. 52.
• * 1.185

  3. Inst. fo. 146. Goodwyn ver∣sus Tompkins, Noy Rep.
• * 1.186

  Lusi Sernus 27. §. & Si. 23. ad leg. Aquil.
• * 1.187

  Ad Reg. Rhod. leg. 2. §. Si conservatis.
• * 1.188

  F. de leg. Rhod. leg. Navis •…•…nustae. leg. Na∣vis. ad leg. Rhod. de Jactu. Sir Francis Moore, fo. 297.
• * 1.189

  Leg. Rhod. de Jactu, l. 2. Si Navis a Pyra∣tis.
• * 1.190

  Moore 297. plt' 442. Hicks versus Palling∣ton.
• * 1.191

  Grotius de In∣trod. jure. Holl. part. 29. Suetonius. jure Naut. in the end of the 13. Chapter.
• * 1.192

  Peckeus ad leg. Rhod. de jact. fo. 196, 197, 198.
• * 1.193

  Grotius Introd. jur. Holl. 3. 29. Vinius and Pekeus Com∣mentaries on the Lawes of Rhodes, 236.
• * 1.194

  Locinus lib. 2. Chap. 8, 9, 10, 11.
• * 1.195

  The Custome of Places va∣ries this Modus of Estimating; the which is done by Mer∣chants and Marriners in∣differently nominated by the Court.
• * 1.196

  Ad Leg. Rhod. §. ult. Inst. de rer. divis. & leg. 9. §. ult. de ac{que} rer. Dom.
• * 1.197

  ff. Ibid. leg. Navis, §. cum autem.
• * 1.198

  Leg. 25. D. de prob. leg. falsus §. Si jactum. D. de surt.
• * 1.199

  Bacon Max. fo. 17. privile∣gium non valet contra rem pub∣licam.
• * 1.200

  In vita Claud. Caesar, lib. 25. c. 18.
• * 1.201

  Leg. 1. ff. qui Salisd. cog. Grotius de jure Be•…•…i ac Pacis, lib. 2. cap. 12. §. 3. in fin.
• * 1.202

  43 Eliz. cap. 12.
• * 1.203

  Leg. 4. 5. D. de Naut. saen.
• * 1.204

  Johannes Loci∣nius, lib. 2. cap. 5. §. 5, 6.
• * 1.205

  Saut•…•…r. p. 3. num. 13. seq. 43. Seq•…•….
• * 1.206

  If such Ensu∣rance be made in the Office, they then set down the hour when intima∣tion is given of the loss.
• * 1.207

  Locinius, lib. 2. cap. 5. §. 9, 9, 10.
• * 1.208

  Arthur Stock∣den of Stock∣den's Case, Mich. 26 Car. 2. in B. R. Afterward convicted by Information for the Fraud, Term. Sancti Hillarij sequen. in B. R. Vide Livins, lib. 25.
• * 1.209

  The Subscrip∣tion mentions as if the Pre∣mio had been actually re∣ceived, but it is seldome done till the adventure is bourn.
• * 1.210

  Ut quae in na∣ves imposs•…•…is∣sent, ab hostium tempestatis{que} vi publico periculo essent. Negotia toribud certa lucra proposuit suscepto in se damno, si cui quid per tempestates accidisset, Livins, lib. 23. c. 25. Vide Zasius in Commentario ad Digesta, tit. pro Socio. n. 25.
• * 1.211

  Sub nomine periculi, de quo fit cautio, com∣prehenditur omnis casus qui accidit in mari, à tempestate, ab hostibus, praedonibus, Repraesalis ut, vocant arrest is alijs{que} modis usitatis & inusitatis citra fraudem & culpam contrahentium, aut domini mercium vel navis. Grotius de jure Holl. part. 24.
• * 1.212

  Iocinius, lib. 2. cap. 5. §. 7, 9, 10.
• * 1.213

  Note, The Port of London ex∣tends from the North Foreland in the Isle of Thanet, over in a Line to the Nase in Essex, and from thence to London-Bridge. R•…•…tulo. Scaccarij 19 Car. 2.
• * 1.214

  That has been much doubt∣ed; and opi∣nions of the Court hath generally en∣clined against the Assurors. Leg. ult. ad Rhod. Digest. Paulus. l. 14. tit. 2. §. 10
• * 1.215

  Vide Grotius Introd. jur. Holl. 212. 23. And indeed is more the Custome of Merchants then Law.
• * 1.216

  Locinius lib. 〈◊〉〈◊〉. cap. 5 §. 9. And by the Lawes of Antwerp there is a time allotted after the Ships arri∣val at her Port how long the adventure is, to be born by the Ensurers, which is about 15 dayes, Art. 13. Assecur-Antwerp.
• * 1.217

  Case of Mon∣sieur Gourda•…•…. Governour of Calais. Anno 1585.
• * 1.218

  Locinius, lib. 2. cap. 5. §. 8.
• * 1.219

  Sub nomine pe∣riculi, de quo fit •…•…autio, com∣prehenditur omnis cas•…•…s qui accidit in mari, a tempestate, ab hostibus praedo∣nibus reprisa∣lijs ut vocant arrestis alijs•…•…; modis usit•…•…is citra fra•…•…em, & culpam con∣trathentium aut domini mercium vel navis. Gro∣tius de introd. jur. Holl. par. 24. In hoc contractu bona fide versandum est, ut natura ultr•…•… citro{que} obligatiodis postulat. Locinius, lib. 2. cap. 5. §. 8.
• * 1.220

  12 Car. 2. cap. 32. 14 Car. 2. cap. 〈◊〉〈◊〉, 18.
• * 1.221

  12 Car. 2. cap. 18.
• * 1.222

  Ritter•…•…hus. ad leg. contractus 23. de Reg. jur. cap. 18. pag. 236, 237. Stypman dicto loco num. 335.
• * 1.223

  Hill. 11 Jac. in C. B. Las•…•…low and Tomlinsons Case, Hobart 88.
• * 1.224

  Inst. in pr. quib. mod. re. con∣trab. ob. te. l. 2. Si cert. peti.
• * 1.225

  Leg. quod con∣venit de ver•…•…. ob.
• * 1.226

  D. Leg. in m•…•…∣nare.
• * 1.227

  14 Car. 2. cap. 23.
• * 1.228

  Oyles versus Marshall, Styles Rep. 1654.
• * 1.229

  Dowdales case, Coke lib. 6. fo. 47. 36 Eliz. in B. R.
• * 1.230

  38 H. 8. Crane and Beil, Co. 4. Inst. 138, 139.
• * 1.231

  Dyer 92. 42. 165. Fleta, lib. 2. cap. 21.
• * 1.232

  Rott. Parl. 31 Ed. 1. cap. 1. & 2.
• * 1.233

  Trin. 5 Jac. in B. R. Kennycot and Boggens case.
• * 1.234

  44 Eliz.
• * 1.235

  4 Hen. 6. Knowles case.
• * 1.236

  Hill. 43 Eliz. in B. R. Rott. At∣torn' General versus Sacheve∣ril and Sneed.
• * 1.237

  Waller versus Hanger, Bul∣strod. 3. part, fo. 1.
• * 1.238

  Hanger's Case, Hill. 13 Jac.
• * 1.239

  Bro. tit. Dis∣claymer, 47.
• * 1.240

  6 Ed. 3. fo. 5, 6. Archbishop of Yorks Case.
• * 1.241

  Sir John Da∣vies in the case of Cu∣stomes.
• * 1.242

  In libro Rubeo in Scaccario Remem. fo. 265.
• * 1.243

  Rott. Chartarum Anno 31 〈◊〉〈◊〉. 1. nu. 44. called Charta Merca∣toria.
• * 1.244

  See the Char∣ter at large in the Chap. of Customes.
• * 1.245

  Stat. 1 H. 5. 2 Ed. 6. 22.
• * 1.246

  Kenicott ver∣sus Hoggan, Yelverton. Boytons Case, 3. Rep. 44. 10.
• * 1.247

  Vouched in the case of Cu∣stomes in Sir John Davies Reports.
• * 1.248

  Cl. 1 E. 1. m. 5.
• * 1.249

  Leg. Oleron, Cap. 23.
• * 1.250

  27 H. 8. cap. 26. 22 Car. 2. cap. 11.
• * 1.251

  Randall ver∣sus Hilton and Butler. Pasch. 26 Car. in B. R.
• * 1.252

  32 H. 8. cap. 14.
• * 1.253

  Leg. Oleron. Cap. 10.
• * 1.254

  Co. Entry, fo. 2.
• * 1.255

  Some conceive that the Ave∣ridge men∣tioned in the Bills, is that which is the Averidge or Contribution for losses.
• * 1.256

  •…•…ghton, Ar∣•…•…c. Enquiry, 27, 28.
• * 1.257

  Per Leg. Oleron Cap. 15.
• * 1.258

  Per Leg. Oleron. Cap. 14.
• * 1.259

  Exod. 30. 31.
• * 1.260

  Moses Kotsenses Printed at Ve∣nice 1557. de Siclis, fo. 12•…•…. Col. 2.
• * 1.261

  Alex. Gendier. l. 5. cap. 30. 〈◊〉〈◊〉.
• * 1.262

  Reg. Orig. 194. Statut. 5 R. 2. cap. 2. 3 H. 7. 6.
• * 1.263

  〈◊〉〈◊〉 E. 〈◊〉〈◊〉. Acton B•…•…nel.
• * 1.264

  This Usury was first intro∣duced by the Jewes here in England. Vide Co. 2. Inst. fo. 506.
• * 1.265

  3 & 4 H. 7.
• * 1.266

  And there∣fore some are of opinion, that there can be no certain rate set on the Par in Ex∣change, to answer justly the value of the Coyns of Forraign Parts, by reason of the diversity of them, and of their intrinsical values. Vide Sir Robert Cottens Posthuma, fo. 306.
• * 1.267

  Cro. 2. so. 7. Martin versus Bour. Pasch. 1 Jac. in B. R.
• * 1.268

  Reg. Orig. fo. 194. Statut. 5 〈◊〉〈◊〉. 2. Cap. 2.
• * 1.269

  Consuetudo quandocun{que} pro lege Servatur, saith Bracton, in partibus ubi fuerit more utentium appro∣bata; longaevi enim temporis usus & consue∣tudinis non est vilis authori∣tas, lib. 1. Cap. 3.
• * 1.270

  Words are made to sig∣nifie 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.
• * 1.271

  Nor is any such thing as a 3. dayes re∣spite to be al∣lowed for ac∣ceptance.
• * 1.272

  Per Jasonem in lege allegantur ff. de conditio∣nibus indebiti.
• * 1.273

  Mich. 19 Jao. C. B. Vanheath versus Turner, Winch. 24, 25.
• * 1.274

  Trin. 20 Car. 2 in B. R.
• * 1.275

  The receiving of part of the Moneys upon the Bill, does no wayes wea∣ken the Bill.
• * 1.276

  Per leg. publia in si ff. depositi & per Bart. ibidem, & per Romanum sin∣gulari, 474.
• * 1.277

  Words are made to sig∣nifie things; Therefore by the word, De∣liverer, is meant he that payes the Mo∣ney: he that drawes the Bill is called the Taker or Drawer: And the party upon whom, is called the Accepter.
• * 1.278

  Styles, Pasch. 1654. in B. R. fo. 370.
• * 1.279

  That is for not payment, the Bill being once accept∣ed.
• * 1.280

  Styles Reports, in B. R. 370.
• * 1.281

  Monck versus Clayton Mil', and Morris. Mich. 22 Car. 2. in B. R.
• * 1.282

  And though the same seems an act of Wisdome for Merchants and others so to take, yet it oftentimes proves the destruction of many a Family; The Father puts out the Son perhaps with no less then 2 or 300 l; and is himself become bound for his Truth and just Accounting, &c. The Servant is immediately trusted with his Cash, and then he too young experienc'd in the World, either neglects keeping a iust account, or keeping that, subjects his Masters Cash to be spent by himself and those who make it their sole Trade to betray such Youths: The Master finding the consumption, calls his Servant to account, who conscious of the act, forsakes his Service, dares not see his Relations, and then as a general consequence falls into a Company, the which nothing but Providence can preserve from taking their wicked cour∣ses. The Father is called to answer, (what ever the Master does say the Ser∣vant 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 My∣stery 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 sub∣ject 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.
• * 1.283

  Rastal 339.
• * 1.284

  Bald. in r•…•… br. de constitut. pecunia in ult. Col. & leg. quidem ff. eo∣dem Col. penult.
• * 1.285

  Bald. in Leg. pro debito. C. de bon. actor. Judi. possiden. & per Bartol. in Leg. singula∣ria. Col. 7. ff. probatur.
• * 1.286

  Pinchard ver∣sus Fowk, Styles, 416.
• * 1.287

  Pasch. 1654. in B. R. Styles 370.
• * 1.288

  London.
• * 1.289

  Holland.
• * 1.290

  There are two Protests, 1. For non∣acceptance, which is cal∣led intimation. 2. for non∣payment.
• * 1.291

  Which is look'd upon to be the third day.
• * 1.292

  There is no danger, be the party never so responsible, to protest imme∣diately 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.
• * 1.293

  In leg. pno de∣bito in fine C. de bonis author. Judi. possiden.
• * 1.294

  14 dayes al∣lowed from the death be∣fore Admini∣stration can be committed, unless there be a Will.
• * 1.295

  But an Intima∣tion ought to go, and that the Acceptor is willing to pay according to Order.
• * 1.296

  L. 1. Cap. 1. §. 1, 2, 3.
• * 1.297

  Aristotle Polit.
• † 1.298

  Campanella Monarch. His•…•….
• * 1.299

  Money is like the middle term of a Syl∣logisine, of which it is said, Quo con∣veniunt in ter∣tio conveniunt inter se.
• † 1.300

  Poland and generally in most of those Northern Countries.
• * 1.301

  Vide Chap. of Exchange, §. 1.
• * 1.302

  Leg. 3. D. de Naut. faen. l. 1. eod. l. 62. D. de rei Vindic. Locinius, lib. 2. Cap. 4. §. 2.
• † 1.303

  Leg. Faen. Naut. leg. peri∣culi •…•…od.
• * 1.304

  Vide Passim ad leg. de Faen. Naut. & DD. leg. Naval. Rhod.
• * 1.305

  Vide leg. 3. C. de Faen. Naut.
• * 1.306

  Leg. Naval. Art. 17.
• * 1.307

  Art. 18.
• * 1.308

  Testatur Vi∣nius in Peckium ad. I. L. Nautic. quem vide pag. 95.
• * 1.309

  Leg. Oleron, Cap. 1. Leg. 4. D. de Naut. faen. l. 1. C. eod. leg. qui Romae §. Calli∣machus de verb. obl. & ibi Gothfr. & alios.
• * 1.310

  Scarborrough and Lyrius, Pasch. 3 Car. in B. R. Rott. 213. Noy 95.
• * 1.311

  16 Car. cap. 6. A good Law, and ought to be encoura∣ged; It's pity it was not continued.
• * 1.312

  Joh. Locinij, l. 2. Cap. 4. §. 1. Latches Rep. fo. 252. Scar∣borongh's case.
• † 1.313

  Teste Camdeno in Britannia, p. m. 149.
• * 1.314

  Locinius lib. 2. Cap. 4. §. 1.
• * 1.315

  Toto lit. Dig. & Cod. de Naut. faen. & Docto∣rum sic hardus in tit. Cod. de Naut. faen. n. 4.
• * 1.316

  Trajectitia pe∣cunia propter periculum cre∣ditoris quam∣diu navigat navis, infinit as usur as capere potest; upon which Law it was ob∣served by Anianus, Quia Maris periculo committitur quant as conve∣nerit usur as hanc pecuniam dare Creditor potest.
• * 1.317

  Trin. 6 Jac. in B. R. 2. Cro. 258. Sharpley versus Harroll.
• * 1.318

  Verum enim vero hie pro∣priè non versari damnatum foenus sed compensationem aliquam periculi, quod creditor contra naturam mutui in se recepit patrim. Johannes Locinius, li•…•…. 2. Cap. 4. §. 1. & 2.
• * 1.319

  C. B. Hill. 22, 23 Car. 2.
• * 1.320

  Vide Carolus Molinaeus de usur. q. 3. n. 92. ait, hoc appro∣bant. omnes Theologi ut Cre∣ditor possit ali∣quid accipere ultra fortem pro susceptione peri∣culi. But sure∣ly that must be upon a real venture.
• * 1.321

  Cl. Salmasius, cap. 9. de modo usur. fo. 380. 188. 218. Trajectitia pecunia propter periculum creditoris, quamdiu navigat navis, infinit as usur as capere potest. Upon which place Anianus observes, Quia maris periculo committitur in quantas convenerit usur as hanc pecuniam dare Creditor potest. Vide Novel. Const. 106. 110.
• * 1.322

  usura legitima ejus qui tra∣jectitiam pecu∣niam trans mare vehendam saeneratur, id est cum periculo suo, centesima est.
• * 1.323

  In the East-India, and in some other Companies.
• * 1.324

  Pindfold ver∣sus Northee, Pasch. 27 Car. 2. in B. R. ad∣judged there on a Special Verdict.
• * 1.325

  Rott. Almaign. 3 Ed. 3. Rott. Rott. Claus. 29 Ed. 1. Ex∣tract Bruxelles:
• * 1.326

  Dors. claus. an. 16 Hen. 3. n. 20:
• * 1.327

  Rott. Claus: 11 Ed. 2.
• * 1.328

  12 Ed. 3. Memb. 22. in∣dors. Rott. Al∣maigne.
• * 1.329

  The Parlia∣ment having justly, honou∣rably and vo∣luntarily humbly presented such and many more who are established on his Majestie according to their several limitations.
• * 1.330

  Claus. Anno 5 Ed, 3.
• * 1.331

  Original. 17 Ed. 3. Rott. 2.
• * 1.332

  Vide the great Case in Mich. 4 Jac. in the Exchequer versus Bates. Lane Rep. fo. 22.
• * 1.333

  Joseph. locutus de Pompeio, lib. 1. de Bello Jud. cap. 5. pag. 720.
• * 1.334

  Sigon. de An∣tiq. Jure Civum Rom. lib. 2. Cap. 4.
• * 1.335

  Luke 13. 2.
• * 1.336

  Is. Causabon, Exercit. 3. 37.
• * 1.337

  Suton. in Flav. Vesp. c. 1.
• * 1.338

  Tertullian (Printed 1609.) de pu∣di•…•…. Cap. 9.
• * 1.339

  1 Eliz. Dyer 165.
• * 2.1

  31 Ed. 1. num 44. intus.
• a 2.2

  Repair∣ing publick Walls.
• b 2.3

  Brid∣ges.
• c 2.4

  Pave∣ments.
• * 2.5

  It is supposed it should be Sindo•…•…ibus, of Lawn, Cam∣brick or other fine Linnen.
• * 2.6

  Sir John Da∣vies in the Case of Cu∣stomes.
• * 2.7

  Vide the Stat. 12 Car. 2. of Tunnage and Poundage.
• * 2.8

  Vide in tit. Prisage.
• * 2.9

  Directions on Tunnage.
• * 2.10

  Directions in Poundage.
• * 2.11

  Directions for the payment of the Subsidy upon Woollen Clothes, or old Drapery.
• * 2.12

  Subsequent Impositions to the Act of Tunnage and Poundage, and the Book of Rates.
• * 2.13

  12 Car. 2.
• * 2.14

  This Collected as the Tunnage and Poundage is directed.
• * 2.15

  14 Car. 2. cap. 11. For preventing of Fraud.
• * 2.16

  14 Car. 2. cap. 11.
• * 2.17

  14 Car. 22. 11.
• * 2.18

  18 Car. 2. cap. 5.
• * 2.19

  22 Car. 2. cap. 3.
• * 2.20

  Per Act of Nav. 12 Car. cap. 18. Vide the Statutes, and the parti∣cular Commo∣dities enume∣rated there.
• * 2.21

  Rule.
• * 2.22

  Rule. Vide the Table of Strangers Duties upon Wines.
• * 2.23

  14 Car. 2. Vide Table of French Wines.
• * 2.24

  Act of Navi∣gation, 12 Car. 2. cap. 18.
• * 2.25

  Act of Trade, 15 Car. 2. cap. 7. Vide Stat. and the parti∣culars enume∣rated.
• * 2.26

  Rule.
• * 2.27

  12 Car. 23, 24. 22 Car. 2. 4.
• * 2.28

  15 Car. 2. cap. 11.
• * 2.29

  Act for Trade, 15 Car. 2. cap. 7.
• * 2.30

  Act for Til∣lage, 22 Car. 2. cap. 3.
• * 2.31

  22, 23 Car 2. 20 Car. 2. 5.
• * 2.32

  20 Car. 2. 5.
• * 2.33

  Act for Trade, 15 Car. 2. 7.
• * 2.34

  Proclam. Car. Regis, 20 Dec. 1662. 26 Aug. 1663. But see 14 Car. 2. concerning Customes.
• * 2.35

  Sir Francis Moore's Report, 224. Lord Cobham's Case. The like not long since adjudged in the Common-Pleas (on a Special Verdict found at St. Edmonds-Bury in Suffolk) about Mich. 25, or Hill. 25 & 26 Car. 2.
• * 2.36

  Virtute cujus∣dam Ordin. à Dom. Com. Sab∣bati 17 Maij, 14 Car. 2. Re∣gis.
• * 2.37

  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.
• * 2.38

  22 H. 8. cap. 8.
• * 2.39

  Per Order in K. Charles the First, subscri∣bed by William Lord Bishop of London, H Earl of Man∣chester, Lord C. J. Brampston, and Lord Lit∣tleton.
• * 2.40

  Portus qua pub∣licus non solum mercibus exone∣randis inservit sed ut naves ibi tutum recepta∣culum habeant, & jure debito ac securitate fruantur Navigantes quatenus innocuum iter et stationem quaerunt. Hinc Portus & Navalia Privilegio pacis publicae guadent. arg. 1. Leg. 1. §. stationem D. de flum. Cap. 2. jur. Nautic. Sued. C. 1. §. 1. 4 H. 4. 20. 〈◊〉〈◊〉
• * 2.41

  Portus est con∣clusus locus quo importantur merces & ex∣portantur l. 59. de verb. Sign. Alias statio, quod ibi tuto naves stare pos∣sint, leg. 1. §. 13. D. de flum.
• * 2.42

  Ad Portus in∣staurationem quia pub∣licae utilita∣tis gratia fit omnes subditi loci conferre oper as debent. l. 7. C. de oper. pub. Portus intuitu fluminis quo ambitur, & vectigalis quod ex Navium statione penditur, est publicus & hodie Regalibus accen∣situr. §. 2. Inst. de rer. dio. l. 4. §. D. de eod. c. un. quae sunt Rega.
• * 2.43

  Some Stairs on the West side thereof is declared not to be a place for ship∣ing or ladding of Goods.
• † 2.44

  Excluding the Stairs there, which are de∣clared no lawful place for shiping, or landing of Goods or Merchandize.
• * 2.45

  The Stairs there declared unlawful for shipping or landing Goods or Mer∣chandize.
• † 2.46

  The Staires there declared no lawful place for shipping and landing of Goods and Merchandizes.
• * 2.47

  The Staires on the East declared un∣lawful for shipping or landing of any Goods, &c.
• * 2.48

  One other place betwixt Cocks Key and Fresh Wharfe, called part of Fresh Wharfe, the Staires are declared to be unlaw∣ful for shipping or landing of any Goods, &c.
• * 2.49

  Vide Cap. 14. what are law∣ful places of landing.
• * 2.50

  Coke 12 part, fo. 17, 18.
• * 2.51

  Fogassaes case, Plowden. Com. fo. 9.
• * 2.52

  14 H. 7.
• * 2.53

  12 Car. 2. Cap. 32. 14 Car. 2. Cap. 18.
• * 2.54

  Boyce versus Cole sen. & Cole jun. Hill. 27 Car. 2. in B. R.
• * 2.55

  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.
• * 2.56

  Nor can such Merchants Stranger land their Goods before they have agreed for the Cu∣stomes, not∣withstanding Charta Merca∣toria.
• † 2.57

  Vide Lib. 3. Chap. 14. §. 10.
• * 2.58

  Note. That all these severall allowances are not by Act of Parliament, but purely his Ma∣jesties gratious and voluntary gift and benig∣nity towards the encourage∣ing the Mer∣chants and Trade.
• * 2.59

  27 Ed. 3. Cap. 13. 12 Car. 2. Cap. 4.
• * 2.60

  14 Car. 2. Cap. 11.
• † 2.61

  Per Letters Patents bear∣ing Date 24. of Feb. 27 Car. 2.
• * 2.62

  De Offic. 1.
• † 2.63

  De Benef. 4. Symps. 7.
• * 2.64

  Leg. quaeda•…•… D. de rer. di∣vis.
• * 2.65

  Bald. 3. cons. 293.
• * 2.66

  Lib. 1. Cap. 1.
• † 2.67

  §. 3. & 4. Serv. ad. 7. Aen. lit∣tus{que} 〈◊〉〈◊〉 innocuum cujus vindicatio, ait, Nulli possit no∣cere.
• * 2.68

  Plutarch re∣lates, That Cymon going to ayd the Lacedemonians▪ led his Army▪ thorough Co∣rinth, 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.
• * 2.69

  Vide Lib. 1. Chap. 4. Vide Mr. Sel∣den Mare Clau∣sum.
• † 2.70

  That is by the Lawes of Nature, but the Lawes of Nati∣ons and those of Countries may.
• * 2.71

  In Legat Cajum.
• * 2.72

  Quomodo au∣tem satis digne quis explicet facilitatem ad mutua Commer∣cia, nobis da∣tam? Ne enim itineris longi∣tudo impedi∣mentum alio∣rum ad alios commetatibus ad ferret, bre∣viorum viam, mare scilicet, ubi{que} terrarum disposuit Deus, ad mundum tanquam unum domum commu∣niter inhabitantes crebro nos invicem inviserimu•…•…; & apud se nata quis{que} alteri com∣municans vicissim, commode acciperet res apud illum abundantes; ac sic exiguam te∣nens terrae partem, ita tanquam si teneret universam, frueretnr ejus quae uibis sunt bo∣nis. Licet itaque; nunc tanquam in communi mensa convivarum unicui{que} ea quae sibi opposita dare alteri longius accumbenti, ac contra quae apud ipsum sunt accipere mann tantum extenta.
• * 2.73

  Vide Strabo, lib. 8. & lib. 16.
• * 2.74

  13 H. 4. fo. 14.
• † 2.75

  Lib. 5. fo. 63. Case of the Chamberlain of London.
• * 2.76

  Vide the Plea of the Venetian Lawyers at the end of Mr. Selden's Mare Clausum.
• * 2.77

  Pereg. l. 1. de jure Fisci, Cap. 1. num. •…•…7.