GEorge Carew of Richmond, in the County of Surrey Esq; Admini­strator of the Goods and Chattels of Sir William Courten Knight deceased, with his Will annexed; having contested at the Hague and Amsterdam, after the Kings Restoration, for the space of fifteen Months, concerning the Spoils and Depredations, upon Sir William Courten's Ships and Factories: A Provisoe was made in the fifteenth Article of the Treaty concluded at LONDON, between the King and the States General, the 4th. of September 1662. that satisfaction and reparation should be made by the East-India Company of the Netherlands, for the two Ships named the Bona Esperanza and Henry Bona Adventura, with their Freights and Lading.

In pursuance of the said Treaty, Carew having Expended and Disbursed di­vers great Sums of Money, both in Holland and England without effect, he was prompted by several Ministers of State at Whitehall, to Address himself by Petition to the Commons in Parliament, in the year 1664. for Relief, who referred the same to the Committee of Grievances accordingly.

Sir Tho. Clifford, then Chairman of the said Committee, after Examination of all the Papers and Depositions concerning this Case, brought in by Sir Tho­mas Littleton, Reported that the Loss and Damages amounted to the Sum of One Hundred and Fifty Thousand pounds Sterling and upwards, hinting at the evil consequences thereof, to the Honour and Interest of the Nation, if those Damages were not satisfied and repaired unto the Families of Sir William Courten and Sir Paul Pindar, who had merited so much from the Crown and Kingdom.

Soon after a War insued, whereupon the Commons Voted to assist the [Page 2] King with their Lives and Fortunes, unto whom they granted several Mil­lions of Money for the Prosecution thereof.

In the Month of May 1665. the Cause concerning the said Spoils and De­predations which had been debated in the Admiralty, in Council, and in Parliament, was reduced to a certainty, for satisfaction by Letters Patents for Reprisals under the Great Seal of England, wherein Sir Edmund Turnors Name is used in Trust, Carew having the Interest in Law on the behalf of himself and others, the Dutch Ambassador then Resident in England had notice of all the proceedings, as it is recited in the body of the said Patent, which passed through the greatest Offices of Trust in the Kingdom, upon ma­ture Consideration.

The Warrant for passing the said Patent, issued out of the Lord Arlingtons Office, then Principal Secretary of State, containing two clauses for conti­nuance of the Grant, until the Debt of 151612l. with Damages should be recovered, which was debated three Months, by the Lord Chancellor Hyde, before it passed the Great Seal, Sir William Turnor and Sir Robert Wiseman the Kings and Dukes Advocates general, being often consulted therein, af­firmed, That it was consonant to the Laws of Nature and Nations, that the said Debt and Damages should be satisfied and repaired. A President there­of being shewn under the Great Seal, in the late Kings time, in the Case of Paulet, a Merchant, who had the like Letters of Reprisals against the Spani­ards, to continue effectual in the Law, until the Debt and Damages should be Reprised, who upon a Peace made with Spain, had the remainder of his Debt unsatisfied.

In the year 1666. Carew and the Creditors claiming under him, procured several Duplicates and Exemplifications of the said Letters Patents, and put the same in execution, by deputations against the Hollanders, who Trading in divers Bottoms, under the colours of Sweeds, Hamburgers and other Neigh­boring Princes and States in Amity with England, the very charges of equip­ping out private men of War could not be gotten, the Ships brought in for Prizes▪ being reclaimed and restored, as by the Rigister of the Admiralty Court appears.

However Sir William Coventry then Secretary to his Royal Highness com­plaining, That those special Letters of Reprisal, obstructed the Lord High-Admirals profits of Tenths by Letters of Marque in time of War, & that the Kings Ships were deprived of Seamen: A Proclamation issued out the 10th. of August 1666. to suspend the Execution of the said Letters Patents, protem­pore. Notwithstanding his Royal Highness was gratified with a Months Tax for his Heroick Courage at Sea.

[Page 3]In the year 1667. a Peace was concluded at Breda, whereby all Letters of Reprisals were mentioned to be revoked, whereupon the said Carew and the Creditors remained passive, until the year 1671. when another War was pro­claimed, the King having particularly owned this Cause, declaring, That he was obliged in Iustice and Honour to see that Debt and Damages, mentioned in the Letters Patents aforesaid, to be satisfied and repaired; the Lords of the Privy Council having also affirmed, That all past Treaties were absolutely can­celled, as if no such Treaties ever had been made.

Then the said Carew was dispatcht away with Orders of the Councel Ta­ble, Referrences and Instructions, with the Kings Letters to his Ambassadors and Plenipotentiaries, to insist upon plenary satisfaction and Reparation in any Treaty to be made with the States; The King expressing in his Leters under his Sign manuall his care to protect his Subjects in their just Rights, as well as to assist them in the recovery thereof.

In the Month of August 1672. It so hapned that Carew and his Servants were Imprisoned by the States of Holland as Spies, for seeking after Justice, and detained close Prisoners without access (and threatned with Death) du­ring the War, which ended in a common Alliance, in the year 1674. upon the consideration of Eight hundred Thousand Patacoons (inter alia) to be paid to the King in four years, for Damages yet three parts thereof were assigned to the Prince of Orange, and the fourth part received for other services by Al­derman Backwel, upon his Majesties account, but the Debt and Damages as­certained for the Spoils and Depredations aforesaid, was left in statu quo, to the remedy at Law prescribed.

In the year 1680. divers of the Creditors of Sir William Courten, Sir Paul Pindar and Sir Edward Littleton, having importuned the said Carew to put in exe­cution the said Letters of Reprisals, since they had no satisfaction either out of the Prizes taken by the Kings Ships, during the War, nor out of the said Patacoons, or any other waies or means whatsoever, notwithstanding their several Addresses to the King, the States, and the Prince of Orange, for that purpose.

Then Carew being advised that several Writs at Common Law, in case of a Spoil at Sea, lay against the Subjects of Forraign Princes and their Goods found in England, until the Statute of Edw. the third, provided that the only Remedy should be by the Law of Marque or Reprisals, without Fraud or De­ceit, for all Damages upon Spoils, which being ascertained and reduced into a Grant, under the Great Seal of England, became such an Interest vested in [Page 4] the Grantees, coupled with an Authority that could not be taken away with­out satisfaction made to the Parties interessed and injured.

And further advised, That Soveraign Princes in all parts of the World, ha­ving once granted such Letters of Reprisals for Spoils and Wrongs done to their Subjects, hold themselves obliged to see right done by one means or other, being trusted with the power of Peace and War: A Prerogative sub­servient to the immutable Laws of Nature, and right Reason.

Then Carew Equipped out a small Ship called the George Bona Adventura, under the command of Captain Compton Gwyther, who took a Fly-Boat laden with Wine and Chesnuts near the Isle of Wight, called the Love of Rotterdam, to awaken those that ought to make reparations, whereupon the Dutch Am­bassador moved for Proclamations, Supersedeas and scire facias, but nothing was offered for satisfaction or repairation upon any account whatsoever, for the Debt of 151612 l. although no part of that principal money, or of ten thou­sand pounds more expended and disbursed by the said George Carew, in the prosecution of his right, was recovered or received, as by his Affidavit filed in Chancery, hereunto annexed also appears.

Then Compton Gwyther and his Mariners, being Apprehended were tryed for Pyracy and Fellony, by a special Commission of Oyer and Terminer, grounded upon the Statute of Henry the VIII. at the New Hall, in the Court of Mar­shalsea in Southwark, on the 18th. of Febr. 1680. where the Jury acquitted them as not acting with a Fellonious intent, under the colour of that Com­mission for Reprisals, Yet the Ship was restored by the King to the Dutch.

In the Month following Sir Robert Sawyer, the Attorney General, brought a scire facias in the Pettibag against Sir Edmund Turner, and George Carew, to shew cause Why the LETTERS PATENTS should not be revoked, repeald, or made null and void; Whereupon Slings by Bethel and Henry Cornish Esquires, the Sheriffs, gave personal notice, and returned the said VVrit in Easter Term 1681. Then Turnor and Carew Appeared and Pleaded the same Term, which lay Dormant until Easter-Term, 1682. when the Attorney General put in a Demurrer: whereunto the Defendants rejoyned, and the Record being Read in Court (consisting of five large Skins of Parchment) on Saturday the 20 of May, the Lord High Chancellor of England, appointed Tuesday following to Argue the same; whereupon the Defendants Councel moved the Court for longer time, in regard they could not have Copies of the Record VVritten out so soon, yet it was denied; and his Lordship gave Judgment for the [Page 5] King, without Arguing the same by the Defendants Councel, who will in due time be ready to make appear not only divers Errors in the said Scire facias. But that Judgment ought not by the Laws of the Land, to be given on the said scire facias: his Lordships Judgment being reversable by Writ of Error or Appeal.

But in the Interval, between the scire facias brought and the Demurrer put in, Carew being pressed to enter other Ships and Pinnaces (according to his Covenants) to Reprise some part of the Debt and Dammages, many Widdows and Orphants Creditors of Courten and Pindar, being concerned therein; The Ship named the America, with 4 others, were offer'd, at their instance, to be en­tred in the Admiralty, and Cap. W. Hawley to be Commander of the America. But Sir R. Lloyd & Mr. Bedford refusing to take any other Notice of the Paper, than only Reading and returning the same, it was Registred in the Chancery, and a Deputation given to the said Cap. Hawley upon an Authentick Copy of the said Letters Patents to put the same in Execution; who in Prosecution thereof, took a Fly-boat laden with Wheat and Rye, called the Young Schone­maker of Dort, under Sayl about three Leagues from the Texell, and then brought the same into Woodbridge Harbour, and sent the Bills of Lading with all the Papers on Board unto Mr. Thomas Broadrick Procter in the Admiralty, in order to a Sentence of Condemnation. Then a Warrant dated 29th of April 1682. issued from the Lords Commissioners of the Admiralty, directed to Mr. William Ioynes the Marshal, who restored the Prize to the Dutch, and apprehended Captain Hawley and his Men for Pyracy and Fellony, and com­mitted them to the Prison of the Marshalsea, in order to their Tryal on Saturday the 10th of Iune 1682.

ON the 10th of Iune instant, the Commissioners appointed to try Capt. Hawley and his men, upon the Stat. of Hen. 8. for Paracy & Fellony. Be­ing met at the New Hall in the Marshals Court in Southwark. The Commission was read by Mr. Tho. Bedford, the Register of the Admi­ralty, Sir Tho. Exton, as President of the Court, gave the Charge: Then the Sheriff of Surry brought in the Precepts, whereupon the Jurors were return'd and Sworn: The Indictment then was delivered to the Grand Jury who found the Bill. Unto which the Prisoners pleaded, NOT GUILTY, Took their Tryal, and put themselves upon God and the Country.

Then Sir Richard Lloyd, Council for the King, alleadged to the Petty Jury that the Letters Patents for Reprisals, aforesaid, were made null and void by Treaty of STATE, Supercedeas, Proclamation, and Iudgment of the L ^d Chan­cellor upon a Scire facias: Yet was so tender of the KING's Honour, That he would not suffer the Letters Patents to be read openly in Court, but only by the Jurors thmselves privately. Whereupon the Council for the Prisoners insisted, That there were not Arguments suffered to be made on the Defen­dants side, upon the Atturney Generals Demurrer to the Defendants Plea, which consisted of 5 Skins of Parchment: the Record being read on Saturday the 20th of May, Judgment was given in the Week following, before Copies could be made of the Record. However Mr. Carew himself persisted, at this last Tryal, That nothing could affect the Patent but Satisfaction: For That by the Laws & Statutes of England, Letters Patents in this Case, which vested an Interest in the Patentees, by especial Grant (as set forth in his Plea to the sci­re facias) could not be revok'd or taken away without satisfaction first made to the parties that suffered the wrong. And that the L ^d Chancellors Judgment is as avoidable upon a Writ of Error for Mistakes in his Opinion, as the Grants in the Letters Patents are avoidable upon Satisfaction made: for that no Act of State (unless an Act of Parliament) can bind the particular Interests of the Subject without Satisfaction: and the scire facias being defective, the Judg­ment given upon it, is null in it self, there being no such Letters Patents as are mentioned in the Scire facias, returned by the Sheriffs, as aforesaid, for Re­stitution to Carolo tunc Comiti Salop, &c.

Then the matters of Fact being made out by the Dutch men the Master & [Page 8] others in the Ship call'd the Schonemaker of Dort, against Cap. Hawley and his men, That they took the ship by force, and possest themselves of the Ship and Lading. To which the Prisoners made little Defence, save only, That they did nothing felloniously or pyratically, but acted by Virtue of a Commission and Deputation indorsed upon the back-side of an Authentick Copy of the Let­ters Patents, hereunto annexed, which was put into the Jurors hands to per­use; who brought them in Not Guilty.

Werereupon Mr. Ioynes the Marshal, immediately arested Mr. Carew, Capt. Hawley, and his men in a joynt Action for 1000l. Dammages, by Writ out of the Admiralty, upon the Dutch Ambassadors desire, at the Suit of Willem de Widt, Iohanes van Eich voor, Alewyn van Vollenhoven, Lodewyck Terwe, Iacob van Harrlem, Antony Walbeeck, Antony van d Santheuvel, all Inhabitants of Dort, that were the Owners of the said ship and lading; but upon Mr. Carew's com­plaint to the Court, then sitting, and the Dutch Ambassador also present, he was discharged pro tempore. But within two days after gave sufficient Bail by two eminent Citizens to answer the said Action both for himself, the Capt. and his Company.

Then some of the most considerable Creditors claiming under Carew's Ad­ministration being unsatisfied with these Proceedings, caused Mr. Ioynes to be arested by Writ out of the King's Bench for 2000l. Dammages, to answer the Value of the said Ship and Lading: having dispossest the said Cap. Hawly, and his men thereof, in an extrajudicial way, upon pretence of a VVarrant from the Lords Commissioners of the Admiralty, dated about the 29 of April 1682. who brought the said Cap. and his men Prisoners, and put them into the custody of Mr. Lowman, the Keeper of the County Gaol in Southwark, where they were detained 44 dayes, or thereabouts, close Prisoners at their own costs and charges, and after they were legally discharged, wereforced to pay Mr. Ioynes and the Register of the Admiralty, several exorbitant Fees, amounting to 6l. 10 s. a man, or thereabouts; to procure which Money, they were forc'd to fell their Beds from under them: For all which the Captain and his men are advised to take their due Course at Law against them for their respective Dammages: That is to say, Cap. Wil. Hawley, Richard Washington, Ri. Terret, Ierom Hawley, Th. Tomkins, Iohn Tayler, and Glanvil Lamboy.

☞ ☞ Its Remarkable, That the Dutch Ambassadors are very clamorous at Court, upon any Complaint of the Hollanders, whose ships and goods are suddenly restored right or wrong, although they refuse to appear for the Heirs and Executors of Ia. Pergens of Amsterdam, & Pet: Boudaen of Middleburgh, who have got into their hands and Possessions the Effects of Sir W. Courtens, & Sir Paul Pindars Estates to the value of 138000l. owing upon Accounts of Bills of Exchange, Moneys lent upon Obligations, and Goods exported out [Page 9] of England in Trade of Partners-ship, wherein divers great summs of Mony were taken up at Interest▪ and imployed in that Trade, and are still standing out and due to divers Orphants and VViddows whose Crys have reached the Heavens, and fallen down with Inundations upon their Country, for Justice in those Civil matters, wherein the States of Holland and Zealand pro­tects the Persons and Estates of the Heirs and Executors of the said Pergens and Boudaen from common Justice, under the Pretence of Treaties of Peace and common Alliance between the King and the States General, although they never came under the Consideration of any publick Treaty, as the spoils and depredations of the Ships Bona Esperanza an Bona Adventura did. And that which cannot be mentioned without Grief and Astonishment, is that the Complaints of the oppress'd Creditors concerning the civil Causes of Acti­ons depending in Holland and Zealand against Pergens and Boudaen leys before the Secretaries and principal ministers of State at Whitehall for relief, without any effectual Answer, although earnestly solicited for many years together.

CHARLES the Second, by the Grace of GOD, King of England, Scot­land, France and Ireland, Defender of the Faith, &c. To all Chri­stian People to whom these Presents shall come, Greeting. Whereas our loving Subject William Courten Esq deceased, and his Partners, in the year 1643. by the Depredation and Ho­stile Act of one Geland, Commander in Chief of two Ships be­longing to the East-India Company of the Netherlands, was be­tween Goa and Maccao in the Streights of Malacca, deprived and most injuriously spoiled of a certain Ship named the Bona Esperanza, and of her Tackle, Apparel & Furniture, and all the Goods and Lading in her, upon a very hopeful Trading Voyage to China, which were carried to Batavia, and there all de facto, without due Process of Law confiscated: and that also in the said year, another laden Ship of our said Subject, called the Henry Bona Adventura, being come on ground on the Island Mauritius, was there both Ship and Goods seized upon by some of the Officers and Ministers, and others under the Com­mand of the said East-India Company, and utterly deteined from the right Ow­ners. And whereas the said William Courten, and his Assigns in his life-time, used all possible Endeavours to recover the said Ships and Goods, and to procure further Iustice against the Malefactors, and yet could obtain no Re­stitution or Satisfaction, whereby they became to be much distressed and ut­terly undone in their Estate and Credit: and that thereupon, and upon the most humble Supplication and Addresses of Francis Earl of Shrewsbury, and Wil­liam Courten Esq Son and Heir of the said William deceased, Sir John Ayton, and Sir Edmond Turnor Knights, George Carew and Charles Whitaker Esquires, on the behalf of themselves and divers others Interessed in the said two Ships Bona Esperanza and Henry Bona Adventura, and in the Estates of the said William Courten deceased, Sir Edward Littleton Baron ^t and Sir Paul Pyndar Knight deceased, That We would take their Case into Our Princely consideration. We out of the just sense We then had, and still have of their unjust▪ Sufferings in that Business, [Page 12] both by Our own Letters under our Sign Manual to the States General of the Uni­ted Provinces, and by Sir George Downing Knight and Bar ^t. Our Envoy Extraor­dinary, to whom We gave Especial Command so to do, required satisfaction to be made according to the Rules of Iustice and the Amity and good Corre­spondence, which We then desired to conserve with them firm, and inviolable: And whereas after several Addresses made to the [...] States General by our said Envoy, and nothing granted effectual for Relief of Our said Subjects (whom We take Ourselves in [...] and Iustice, concerned to be satisfied and re­paired) We lately commanded the said Sir George Downing to intimate and signify to the said States, That We [...] their [...] Answer, concerning Satisfaction to be made for the said Ships and Goods by a time then prefix­ed, and since elapsed, That we might to govern Our selves thereupon, that Our aforesaid Subjects might be relieved according to Right and Iustice: And yet no Satisfactory Answer hath been given, so that We cannot but ap­prehend it to be not only a fruitless Endeavour, but a prostituting of Our Honour and Dignity, to make further Application, after so many Denyals and Slightings. And whereas John Exton, Doctor of Laws, Iudg of Our High Court of Admiralty of England, upon Our Command, to certify to Us the Da [...]ie of the Losses and Dammages Instaine▪ by the said William Courten and Partners, whose Interest is now vested in our loving Subjects, Sir Ed­mond Turnor Knight and George Carew Esq and Partners, hath upon full Ex­amination and Proofs thereof made by Witnesses in Our High Court of Ad­miralty, Reported and certified under his Hand, That the same do amount to the sum of One hundred fifty one Thousand six hundred and twelve Pounds.

Now know Ye, That for a full Restitution to be made to them for their Ships, Goods and Merchandizes, of which the said William Courten, and the Assigns of the said William Courten, and Partners, were so despoiled, as afore­said, with all such Costs and Charges; as they shall be at for Recovery of the same: Wee by Advice of Our Privy Council have thought fit, and by these Pre­sents do Grant License and Authority under our Great Seal of England, unto Our said Subjects Sir Edmond Turnor and George Carew, their Executors, Ad­ministrators and Assigns, for and on the behalf of themselves, and other per­sons interessed as aforesaid, to Equip, Dictual, Furnish, and set to Sea, from time to time, such and so many Ships and Pinaces as they shalll think fit: Provided alwayes that there be an Entry made and Recorded in the Admi­ralty Court of the Names of all ships and Vessels, and of their Burthen and Ammunition, and for how long time they are Victualed: and also of the Name of the Commander thereof, before the same, or any of them be set forth to sea: and with the said ships and Pinaces by force of Arms to set upon, take and apprehend any of the ships, Goods, Moneys and Merchandizes of the said States General; or any of their subjects inhabiting within any their Dominions or Territories whatsoever, of any particular Estate within those Provinces, and the Inhabitants thereof; wheresoever the same shall be found, and not in any Port or Harbor of England, and Ireland, unless it be the ships and Goods of the Parties that did the Wrong: and the said ships, goods, Mo­neys and Merchandizes being so taken and brought into some Port of Our Realm or Dominions, an Inventory thereof shall be taken by Authority of [Page 13] Our Court of Admiralty, and judgment shall be given in Our Court of Admi­ralty by the Iudg or Iudges thereof, for the time being and upon Proof made before him or them, That the same ships, Goods, Wares, Merchandizes or Mo­ney, did belong to the States General, or any of their subjects, as aforesaid, That they shall be lawfull Prize to the said Sir Edmond Turnor and George Carew, their Executors, Administrators and Assigns, as aforesaid, to keep and retain in their or any of their Possessions, and to make sale, and dispose thereof in open Market, or howsoever else, to their and every of their best advantage and be­nefit; in as ample manner, as at any time heretofore hath been accustomed by way of Reprisal, and to have and injoy the same as lawful Prize, and as their own proper Goods: so that neither the ‘ Captain, Master nor any of the Company that shall serve in his own person, or shall promote and advance the said Enterprize in man­ner and form aforesaid, shall in any manner of wise be reputed or challenged for any Offen­der against any of Our Laws. And that also it shall be lawful for all manner of Persons, as well Our Subjects as any other, to buy the said Ships, Goods and Merchandizes so taken, and apprehended by the said Captains, Masters and others, and adjudged, as aforesaid, without any Damage, Loss, Hindrance, Trouble, Molestation, or Incumbrance, to befall the said Buyers, or any of them, in as ample and lawful manner, as if the said Ships, Goods, Wares and Merchandize had been come and gotten by the lawful Traffique of Merchants, or of just Prizes in time of open War.’ Provided always, That all ships, goods and merchandizes, taken by Virtue of this Our Commission shall be kept in safety, and no part of them spoiled, wasted or diminished; nor the Bulk thereof bro­ken, untill Iudgment have first past, as aforesaid, That they are the ships and Merchandizes of the States General, or some of their subjects, as aforesaid. And if by Colour of this Our Commission, there shall be taken any ships, Goods or Merchandizes of any of Our loving subjects, or the subjects of any Prince, or State in good League, or Amity with Us (except the States General) or their subjects, as aforesaid: and the Goods therein Laden, sold, embezled or [...] ­ed, or the Bulk thereof broken in any place, before they shall be adjudged to belong to the said States General, or to some of their subjects, as aforesaid, That then this Commission shall be of no sufficient Authority to take the said ships Goods and Merchandizes, or to Warrant, and save harmless such as shall Receive, Buy or Intermeddle therein but that both the Prizes so taken, and the said ship of War, shall be confiscated to Our Vse. ‘ And further, We do hereby de­clare, That it is Our Will and Pleasure, That this Our Commission shall remain in full Force and Power, to all Intents and Purposes until the said Sir Edmond Turnor and George Carew, their Executors, Administrators and Assigns, as aforesaid, shall by Virtue thereof have by Force of Arms Apprehended, Taken, Seized, Recovered and Receiv'd from the said States General, or their Subjects,’ One hundred fifty one Thousand six hundred and twelve pounds, according to Appraisement to be made by sufficient Appraisers upon Oath, ‘Nominated and Authorized in our said Court of Admiralty, of all such Ships, Goods, Wares & Merchandizes, as shall be taken from the said States General, or any of their Subjects, by Virtue of this Commission, or shall otherwise receive Satisfaction of the Debt aforesaid, by Composition to be made between those of the East India Company of the Netherlands, and the said Sir Edmond Turnor and George Carew, their Executors, Administrators and Assigns as aforesaid. ☞ Notwithstanding it may so happen, the present Difference between Us, and the States General depending upon General Reprisals, may be agreed and compo­sed, [Page 14] and that in the Interim a Peace and good Correspondance may be renewed between Us, and the said States General: In which Case, Nevertheless, it is Our Will and Pleasure, That in the Execution of this Our Commission, no Violence shall be done to the Persons of the said Subjects of the States General, but only in Case of Resistance; and that after, in cold Blood, the said Subjects of the said States General, if hurt or Wounded, shall be used with all convenient Office of Humanity and Kindness. ☞ And Further, Our Will and Plea­sure is, That although it shall happen, That all Hostility between Us and the States Gene­ral, and Our respective Subjects shall cease, yet this Our Commission shall remain, and be in full Force and Power, to the said S ^r Edmond Turnor and George Carew, their Executors, Ad­ministrators and Assigns, as aforesaid, by Virtue thereof to apprehend, take and seize by Force of Arms, so many more of the said Ships and Goods of the said States General, or any of their said Subjects, as besides the said Summ before mentioned shall countervail, satisfie and pay all such Costs and Charges as the said Sir Edmond Turnor and George Carew, their Executors, Administrators or Assigns, as aforesaid, shall from time to time make proof to have disburst and paid towards the Equipping, Manning, Paying, Furnishing and Victualing of the said Ships, so licensed and authorized, as aforesaid, by this our said Commission, to be Equipped, Manned, Payed, Furnished or Victualed by the said Sir Edmond Turnor and George Carew, their Executors, Administrators and Assigns, as aforesaid, for the Purpose aforesaid.’ And Our Will and Pleasure is, and We do hereby require Our Iudge or Iudges of Our High Court of Admiralty, for the time being, and all other Officers of the Admiralty, and all other our Iudge or Iudges, Officers, Ministers and subjects whatsoever, to be aiding and assisting to the said Sir Edmond Turnor and George Carew, their Executors, Administrators and Assigns as aforesaid, in all points in the due Execution of this Our Royal Commission, and to proceed to Adjudication, and to adjudge all ships, Mer­chandizes, Moneys and Goods by Virtue thereof to be taken and proved to belong to the said States General or any of their subjects, to be Lawful Prize to the said Sir Edmond Turnor and George Carew, their Executors, Admi­nistrators or Assigns, as aforesaid, according to Our Princely Intention, hereby signified and expressed, and to take Care that this Our Royall Com­mission be duely executed, and favourably Interpreted and Construed in all respects, to the Benefit and best Advantage of the said Sir Edmond Turnor and George Carew, their Executors, Administrators and Assigns, as aforesaid. In Witness whereof, We have caused these Our Letters to be made Patents. Witness Our self at Westminster the 19 day of May, in the 17 Year of Our Reign.

That in consideration of the Debt and Damages of 151612 l. con­traded by the Spoils and Depredations upon the Ships, Goods, and Factories of Sir William Courten, Sir Paul Pyndar, and their partners, in the East-Indies; for which Letters Patents for Reprizals were granted under the Great Seal of England, to continue effectual in the Law, until the said sum of 151612 l. with Costs and Damages, should be recovered and received; which is become a Debt incumbent upon the Crown, if his Majesty undertakes to Indempnifie and discharge the States-General and their Subjects concerning the same.

I. It is therefore humbly proposed, That His Majesty should, in lieu thereof, grant and assign the 4 and ½ per cent, arising out of the Barbadoes, and the Careebe Islands, and the wast Lands there, to certain Trustees, for the use and benefit of William Courten, Grand-child and Heir of Sir William Courten, and the Creditors of his Father and Grand-father, who were the Original Pro­prietors of the Island of Barbadoes, whereof they were dispoiled by Iames, late Earl of Carlisle, and his Adherents; to the insupportable Damages of Sir William Courten, his Family, and Creditors.

That in Contemplation of Sir Paul Pyndar's great Services and Suf­ferings for the Crown of England; and more particularly, for the vast sums of Money lent to the late King, Charles I, amounting to the sum of One hundred and thirty thousand Pounds, upon the Allom-Farm, Sugar-Farm, Collectors of the Papists Compositions in the Northern Counties, and other Branches of the Revenue; which were diverted in the late trouble­som times to other uses, leaving Sir Paul Pyndar's Assignments unsa­tisfied, and many of his Creditors undone.

II. It is therefore humbly proposed, That there may be a Privy-Seal granted for Fifty thousand Pounds upon the Reference from His Majesty, that lies before the Lords Commissioners of the Treasury to be raised out of the said Papists Estates (at the instance and Petition of Richard Powel Esq and Na­thaniel Hill Gent.) upon their old Compositions in the eleven Northern Counties, as they paid under the Collection of Thomas, Viscount Wentworth, in the year 1638. which they are willing now to satisfie accordingly.

[Page 18]That whereas there are divers great Debts and Sums of Money ow­ing, and resting in the hands and posessions of the Sons, Heirs and Executors of Jacob Pergens of Amsterdam, and Peter Boudaen of Middleburgh in Zealand, that belongs to the Estates of Sir William Courten and Sir Paul Pyndar, upon Bills of Exchange, Obligations for Money lent, and private Contracts in Trade and Merchandizing, amounting to the sum of One hundred and twenty thousand Pounds, and upwards: Whereupon there are Actions depending in the ordinary Courts of Iudicature in Hol­land and Zealand, ready for Sentences, and final Decrees; wherein Iustice is positively denyed, upon vain pretences of extinguishments and mortifica­tions by Treaties of common Amity and Alliance.

III. It is most humbly proposed, That His Majesty would be graciously plea­sed effectually to recommend the Petition of the Creditors, that lies before the Lord Conaway to that purpose, for speedy satisfaction to be made there­in, for relief of His most Oppressed Subjects.

THe Record being made up, and brought into Court on the 26th. of May 1682. the Attorney-General and the Solicitor both moved for Judgment without any other Argument for it, than pretended. Reason of State. Whereupon the Councel for the Defendants moved, that it was against the practice of all Courts in Westminster-hall, to argue the same. Term the Record was brought in, or without a Consillium, and a conve­nient time appointed to study and argue the points in Issue; especially in a matter of this weight and consequence, being a noble Case to be debated and argued, both in point of Law and State; and therefore desired a longer day; whereupon the Lord Chancellor stood up, and said, If they were not ready to argue, he was ready to give Judgment; and that they might argue by the Spirit, if they would. So his Lordship informing the Court that he had studied the Case himself; And for the satisfaction of all man-kind (as he said) gave these Arguments following, which were taken in writing by several Councellors at Bar.

THe Statute of 31 H. 6. cap. 4. gives Admiral Iurisdiction to the Court of Chancery for speedy relief in cases where strangers are robbed at Sea by the King's Subjects.

And that, after a Peace concluded, Letters of Marque (for Reason of State) are totally extinguished.

These Letters Patents, especially being granted when this Kingdom and the Hollanders were in a state of Enmity, (they appearing to bear date the 19th. of May, 1665. in the heat of the War) are therefore disannulled by the subsequent Peace.

A Safe Conduct granted by the King, supersedes Letters of Marque, as ap­pears, 11 H. 4. N. 66. by Iudgment of the Parliament of Paris, and the Parlia­ment of Montpellier, 2 H. 5. N. 34.

A Truce between Nations that have been at Enmity, supersedes Letters of Marque, as appears, 11 H. 6. N. 34. Parl. Rot.

A fortiori, A Peace, after Proclamation thereof, and a Supersedea sunder the Great Seal, will abolish and extinguish Letters of Marque; and that for the Reason aforesaid; The King having the Power of Peace and War.

Mr. Carew cannot be a good Subject, to involve the Publique, by executing these Letters of Marque in times of Peace; who (as I am informed) had 30 Ships out in time of War.

And the Clauses contained in the Patent, that no Peace shall extend to the prejudice of the said Letters Patents, before satisfaction, was a Clause unusual, and incerted by surprize, and ought not to have been, and is in no sort obligatory.

Wherefore, I give Iudgment, That the Letters Patents shall be brought into Court, to be cancelled, and the Enrollment thereof razed.

THe Record of the Demurrer joyned in the Pety-Bag upon a Scire faci­as brought by Mr. Attorney General on the behalf of His Majesty, for revoking certain Letters of Reprizal granted to the Defendents the 19th. of May 1665. coming this present day to be argued before the Right Honourable the Lord High-Chancellor of England, by vertue of an Order of the 20th. instant, at which time the Record was read: The Defendents Councel desired longer time; But, upon hearing of Mr. Attorney-Gene­ral on the behalf of the King, his Lordship declared, that the matter in de­bate did concern the Publick, and could not admit of any further day to be given to the Defendents. And his Lordship having been attended with the Record, and duly considered the whole matter, is of opinion, and doth order, That the said Demurrer do stand, and that Iudgment be entred up for the King, for the revoking the said Letters Patents; and doth further order, That the Enrollment thereof be vacated upon Record, and that the Defendants do forthwith bring into this Court the said Letters Patents, and all Exemplifications and Duplicates thereof, under Seal to be can­celled.

On the next morning the Lord Chancellor was pleased in open Court to give order, that the Attorney-General should be careful in drawing up the Judgment; and that the Clerk of the Pety-Bag should enter it upon the Roll, aud exemplifie the whole Record, under the Great Seal, and send it to the Admiralty-Court, to remain there.

It may be observed, That the Scire facias being returned in Easter-Term 1681. and the Plea filed of the same Term, and the Demurrer coming in not before Easter Term last: the Attorney-General had a whole year to consider of the said Plea, which is admitted as to the matters of Fact in all particulars by the said Demurrer, and since sworn to be true by one of the Defendants: So that the Attorney-General making no Reply, insisted only upon the Law. The Questions therefore that do naturally arise upon it, are, Whether the Scire facias be a Legal and warrantable Writ in this Case for the Lord Chancellor to ground his Judgment upon, for repealing the Letters Pa­tents, (without satisfaction) so solemnly obtained under the Great Seal of England, [Page 23] according to the Laws of the Land? or, Whether the Plea be not sufficient in Law to support and maintain the Letters Patents, until the Debt and Damages be recovered?

BUt before we come to answer the Lord Chancellor's Arguments, it's absolutely necessary to speak a word or two concerning the Scire facias, and the Order entred by the Register, that the Defendents should bring the Letters Patents, and all Exem­plifications and Duplicates thereof, under Seal into Court, to be cancelled.

It's recited in the Record made up, pro restitut' faciend' Carolo tunc Comiti Salop, & al' in eisdem Literis Patent' &c. whereas there is no such Patent as is mentioned in the Scire facias. Notwithstanding, it's affirmed in the said Order of the 26th. of May 1682. That his Lordship had been attended with the Record, and duly considered the whole matter; and yet in the second Line of the said Record it's written, Carolo tunc Comitis Salop; whereas in the Letters Patents for Reprizals it's mentioned for restitu­tion to be made to Francis Earl of Shrewsbury, and others; So that the Foundation being bad, the Structure must fall to the Ground: there being no such Patent as the Sci­re fas' recites. Whereupon a Distringas is since issued forth to the Sheriff of Mid. to di­strain all the Lands and Tenements of George Carew within his Bayliwick, until the said Patent, Exemplifications and Duplicates thereof, under Seal, be brought into Court, and cancelled; which is impossible for him to do, being out of his power; the said Duplicates and Exemplifications being in the hands of several Persons beyond the Seas, with Assignments and Covenants that they shall continue effectual in Law, until the Debt of 151612 l. with Damages, shall be recovered and received, according to the words of the Grant, and the King's Declaration. Wherefore, it would be both Honour­able and Just for any Ministers of State in England or Holland, to bring the Scire facias in one hand, and Money to satisfie the Debt and Damages in the other; And without that Quid pro quo, (under his Lordship's favour) the Patent cannot be legally revoked, repealed, or made void.

Yet for satisfaction of all Mankind, that the Defendents will abide by their Plea, they have retained their Councel to give modest Answers to the Lord Chancellor's Ar­guments, as followeth; who holds it convenient to begin at the root, where his Lord­ship ended.

1. The stipulation for extinguishing all other Losses and Damages by the Treaty 1662. from the like Sovereign Remedies. 2. The States denyal of making satisfacti­on for the Spoils and Depredations of those two Ships, according to the said stipulation. 3. The Services and Sufferings of Courten and Pyndar for the Crown of England, so eminently known to all Parts of the World 4. And the great Supplies given to His Ma­jesty in Parliament, for the Protection of His Subjects at the very time the said Patent for Reprizals was passing through Sir Heneage Finch's Office, when he was Solicitor-General, (upon the Negotiation of Mr. Gilbort Crouch) were four invincible Arguments [Page 24] for the King to pass this Grant of common Right, to his Subjects, with those two Clau­ses of a continuando until the Debt 151612 l. wi [...]h Costs and Damages, should be reco­vered and received; the King having declared so much in his Speech to both Houses of Parliament, and expressed in the very body of the Patent, (in these words) For relief of Our said Subjects, whom We take Our selves in Honour and Iustice concernd to be satisfied and re-paid So that the King declares Himself equally Great and Just. Therefore, neither surprized nor deceived in this Grant of Reprizals, that had passed the Test of all the chief Officers of State and Trust in the Kingdom, whose Judgments are Arraigned, by questioning the validity of the said Grant.

The reasons are very obvious to all Mankind, that the Patent ought to be so worded, until the Debt and Damages shall be recovered and received; for that there is no other remedy for the Subjects relief, but such Grants, grounded upon the Law of Marque, after Justice denied in the Case of a Spoil.

This Clause of continuance distinguisheth between general and particular Reprizals; the one being an Act of War, the other a Process at Law, and out of the King's Power to obstruct the restitution of this Debt and Damages to the persons interessed, and in­jured otherwise the remedy would prove a Grievance, after such vast Expences in as­certaining the Debt and Damages according to the Rules of Law, if the Grant should not be obligatory.

It is in the Power of the States of Holland, or the King, to satisfie this Debt and Da­mages, to make good the King's own words, and preserve His Honour and Justice en­tire, which ought to be kept Sacred and Inviolable; And if the King cannot pardon the least Trespass, when sued for reparation in the ordinary Course of Law: à fortiori, He cannot pardon a Spoil after a Judicial Grant to recover it according to the Laws and Statutes of the Realm.

General Letters of Marque, in time of War, are ambulatory, and revokable at Pleasure, being usually granted to all persons in all Nations that will ask for the same, to weaken the Enemy; as they did at Oast-End, Dunkirk, Flushen and Diep, in the times of War between Spain and England, France and England, and Holland and Eng­land; and those are called Privatters, or Private men of War, of whom the Lord High-Admiral hath a tenth part of all Prizes; And these are the Letters of Marque▪ the Lord Chancellor so often mentions in his Arguments; whereof there are hundreds of Precedents in the Courts of Admiralty in England, Holland, France and Spain; which are Temporary Grants, and determinable at Pleasure, or certain days prefixt under the Seal of the Admiralty.

By the sacred prescriptions in Holy Writ, restitution is to be made double the value of the property injuriously taken, which implies the Charge of Prosecution; and if the Trespasser, be not able to satisfie, he shall be Sold for his Theft, or kept for a Ransom: Upon this ground the old Writs in the Register, and F. N. B were made, and our Ancestors were so careful for the preservation of every English-mans Right and Pro­perty, and the encouragement of Navigation and Commerce; That Merchants Stran­gers resident in England, and their Goods were Arrested by those Writs, for satisfacti­on of Injuries done at Sea by the People of that Kingdom or Nation, that did the wrong, whereof they were Subjects.

But upon the Petition of the Merchants, Staplers, and others to the Parliament, in the 27th. of Edw. 3. c. 17. The force of those Writs were taken away, and it was or­dained [Page 25] and Enacted by the same Parliament, That all Persons Spoyled at Sea, shall have the Law of Marque, without fraud or deceipt, that is of taking the value of the Loss and Damage again.

Bracton Says, Quod nihil aliud potest Rex in terris cum sit Minister Dei, & Vicarius; quam solum quod de jure potest. Every Man hath a Right to Justice; and every Sub­ject of England having a Fundamental property in his Goods, and a Fundamental li­berty of his Person. It is repugnant to the Laws of God, Religion and Property, to take away our Goods (for reason of State) without price or satisfaction: he is not a Subject, but a Slave that suffers his Substance to be taken from him against his Will Infinite are the Arguments that may be used, and deduced from the Law of Reason and Natural Justice, in the vindication of this Patent: However, its neccessary to answer the Lord Chancellour Gradatim to his Arguments, aforesaid,

His Lordship would here beg the question, and have all Mankind to take it for granted, That those who Act under this His Majesties Royal Charter and Authori­ty, are Robbers and Theeves: Notwithstanding the express words in the Patent, That it shall be lawful for them to recover the said Debt and Damages, although a Peace for General Reprizals (concerning the Dominion of the Sea) should be con­cluded.

Its true, the said Statute of Hen 6. provides a remedy for those that have safe Conduct, and are Robbed by the Kings Subjects. The Lord Chancellour calling to him, any of the Judges of either Bench, who upon Bill of Complaint, shall cause Restitution to be made of Ships and Goods to the parties grieved. This Statute may be still in Force, but not practicable, since the Odious and Arbitrary power of the Admiralty Court was taken away by the Statute of Hen. 8. in the 28th. year of his Reign, for Tryal of Piracy by Jurors, according to the course of the Common Law. However the Statute of Hen. 6. recited by his Lordship, comes not to this case upon the Scire Facias.

But its enacted and ordained, by the Statute made in the 20th. year of Hen. 6. cap. 1: And several other Statutes of this Realm: That all Letters of safe Conduct, Trea­ties and Leagues of Amity and Alliance, shall be Inrolled of Record in Chancery, or else not to be of any Force or Effect in the Law.

And the Treaty at Breda being not Inrolled, or made any matter of Record in Chancery, whereby the Kings Subjects might have recourse thereunto; cannot any ways affect this grant to Turnor and Carew: And many proper Officers have lost their Heads in former ages, for their miscarriages; not inrolling in due time such publick Treaties, Leagues and Alliances.

Its also true as the Lord Chancellour observes, the Letters Patents to Turnor and Carew, were granted in time of War, (for an injury done to private Persons in time of peace,) but provided that no Subsequent peace should affect it, without a recovery or satisfaction to be made for the Debt and Damages: either by force of the Grant, or Composition made with the Persons interessed. The Fiat passed in the month of [Page 26] May 1665. But the proceedings that brought it to that conclusion, continued de die in diem, ever since the Treaty of Alliance, made in the year 1662. Wherein it was concluded and agreed, That the said Debt and Damages so assertained and Liquida­ted should be satisfied and repayed.

Yet admitting this Treaty at Breda concluded upon the surprize of Chattam, had been duly Inrolled, and made a matter of Record in Chancery: It was afterwards can­celled, disanulled, and openly extinguished by Proclamation, in the year 1672. And particularly signified to His Majesty by a report, upon a reference to five Lords of the Council Table, concerning the Debt and Damages mentioned in the Letters Patents aforesaid; In these words, That the States General having wholly cancelled all past Trea­ties and Agreements, and left your Majesty and your Subjects as free in all iustice and E­quity, as if they never had been made: We therefore humbly presume to report our Opi­nions to your Majesty, that it is now but just and seasonable for your Majesty, to insist upon reparation for the Debt and Damages aforesaid: This reference was made to the Lord Arlington, Lord Ashley, Sir Thomas Clifford, Sir Iohn Trevor, and Sir Iohn Duncomb, by Order of Council 22. of March 1671. Now whether a Treaty never Inrolled, and af­terwards Cancelled by Order of Council, and Proclamation should be properly in­sisted upon, in any Judicial Writs, is fit for another Court of Judicature, or Parliament to resolve.

It's granted, that after a peace concluded, all Temporary Letters of Marque having a bare Authority in themselves, are for reasons of State totally Extinguished, in re­gard those Letters of Marque had not an Authority coupled with an Interest.

A general Letter of Marque or Reprizal, as before it's said, is an Act of War; A particular or Especial one is a process at Law, which is our case.

Letters of safe conduct, usually granted to Foreign Ambassadors, and other Persons: Upon Emergent occasions are in the nature of a Supersedeas to any Commander (that hath a Commission or general Letter of Marque) or Privateer, so properly called as be­fore; nor shall they be interrupted by any Person that hath a speciall Commission grounded upon the Law of Marque; and this is consonant to reason of State, and the Law of Nations.

And it is not denyed but that a Truce between Enemies supersedes all Temporary Letters of Marque, being Acts of War, but not special Letters of Marque or Reprisals which take their rise from Spoyls & Depredations committed in times of Peace upon particular men or Companies, that becomes a personal injury. And the reason is plain, for that the Law of Marque and Grants thereupon, are consistent with times of Peace, and the strictest Amity and Alliance, between Sovereign Princes and States. Captions thereupon being in the nature of Seizures in a hundred for a Robbery upon a private person before Sun-set, which comes to a common Average to prevent a failer of Justice.

It's observed that Sovereign Princes holds the Scepter in one hand and the Globe in the other. The Sword is carried before them by some Chief Minister of State, to shew that Justice is to be duely Administred by Officers that are accomptable for their mis­carriages; By the Law of England, the King can do no wrong. He is obliged by Oath to protect His Subjects in their Rights, Properties and Estates; Therefore His Ministers cannot take them away.

Yet no man of sence will denie, but that the King for a publick good may by due means and ways make void even the Letters Patents, in this case of Reprisal, that is [Page 27] to say (as it's observed before) with Money in the right hand of a Lord Treasurer, Dutch Embassador, or Lord Chancellor, and the Scire-facias in the left hand, for the Grantees to shew cause (the Money being payed) why they should not bring the Letters Patents into Court to be Cancel'd.

Treaties of State if they be repugnant to the Law of God, the Law of Reason, or the Laws and Statutes of England (ipso Facto,) they are void in themselves; The third Article of the pretended Treaty at Breda, concluded in the year 1667. after the Sur­prize at Chatham, says that all Offences, Injuries, Damages and Losses sustained on ei­ther side by the King or the States, or their Subjects during this War, or at any time before upon any cause or pretence whatsoever, should be totally expunged and buried in O­blivion, and all Actions at Law concerning the same.

Now if any forced Interpretation should be put upon this Article, (so generally Pen­ned) that all private differences of meum & tuum, between particular persons of either Nation should be comprehended in this Article, it's void, because its not in the Power or Prerogative of any Prince to hinder the due course of Law for a particular debt or per­sonal injury. Admit that a Hollander were indebted to an English-man before the Treaty at Breda for goods Sold or sent to make Sale of, and the Dutch-man should plead spe­cially the Treaty at Breda; in Bar to an Action brought for the Money, it would not hold good in Law; for that it cannot be any ways intended that particular Debts and Actions should fall under the considerations of such Offences, Injuries, Losses and Da­mages mentioned in that Article which generally relates to Kings and States.

As for Mr. Carew, his Plea to the Scire Facias, and Affidavit annexed, speaks suffi­ciently for his Justification: Persisting, That no restitution is made for the 151612 l. or any part thereof; although Sir James Butler and others are ravishing his Estate from him, upon Fore-closures of Equity, even for Moneys lent upon account of prosecuting this Cause.

There was never such a president since the Creation, that a particular Interest and Property so Liquidated and Established for satisfaction and reparation (under those cir­cumstances) according to the Laws and Statutes of this Realm; wherein so many Fa­milies are concerned, as the Creditors of Sir William Courten and his Son, Sir Paul Pynder and Sir Edward Littleton should be so slighted and contemned

The Lord Chancellor well observed it concerned the publique, it's very true it concerns the publick Honour and Interest, the publick Justice and Equity of the Nation, that the Debt and Damages should be satisfied and repayed.

There is no Reason of State that particular persons should Purchase a publick Peace at their own Charge, or that a private Interest should be Sacrificed for the publick good, without satisfaction out of the Publick Purse.

The Parliament of Paris, or Monpilier, cannot give Laws to the Parliament of England, that enacted if any man should be spoiled by French or others at Sea, in peaceable times they shall have the right and benefit of the Law of Marque or Repriz­als, to recover their Loss, Damages and incident Charges; which by consent of Nations being once ascertained by a Judicial Act, must have its Extent, and Execution the end of the Law (Satisfaction.)

And this being agreeable to the Laws of God, the Laws of Nature, the positive Laws of Nations, and the Laws and Statutes of England, and the King having by His Letters Patents, under the Great Seal of England, pursuant thereunto, commanded and required all Judges of the Admiralty and Officers there for the time being, to be Aiding and Assisting to Turnor and Carew, their Executors Administrators and Assigns, and to take care that all things shall be favourably interpreted, and construed in all respects, to [Page 28] the benefit and best Advantage of the said Turnor and Carew, their Executors, Ad­ministrators and Assigns; Witness himself at Westminster, the Letters were made Patents the 19th. day of May, in the 17th. year of his Reign

Now how the Actions and Proceedings of several Ministers and Officers of the Admi­ralty (and other Mercenary Mortals) do quadrare with the Kings Honour and Iustice, (that have Issued out Warrants in the Kings name, to apprehend and seize the Persons and Goods of his Majesties Subjects; detain them in Prison and Irons until they were Tryed, as Fellons and Pyrats, for duly acting under his Majesties Royal Commission and Charter; grounded upon the Laws and Statutes of England; Whereby they were found innocent and accquitted. Yet afterwars detained for Exhorbitant and Extrajudicial Fees of Registers and Marshalls of the Admiralty) is left to any Mankind to Iudge.