The Constitutional Documents of the Puritan Revolution. Samuel Rawson Gardiner
According to this great and honourable direction, the King’s Advocate proceeded upon the general allegations formerly put in, the 26th of January; after, there was a sentence in the Admiralty, that the Peter should be discharged; and the King’s Advocate not having then any knowledge of further proof, consented to it.
But this was not a definitive sentence, but a sentence interlocutory, as it is termed in that court. Within four days after this ship prepared herself to be gone, and was falling down the river; then came new intelligence to the Lord Admiral by Mr. Lieutenant of the Tower, that all those ships were laden by the subjects of the King of Spain in Spain; that the Amirantazgo wafted them beyond the North Cape; that they were but coloured by Frenchmen; that there were witnesses ready to make good this new allegation; neither was it improbable to be so, for part of the goods in that ship have been confessed to be lawful prize Ref. 012. This ship being now in falling down the river, and being a ship of the most value of all the rest, the Duke acquainted the King therewith, and by his commandment, made stay of the ship, lest otherwise it would be too late: which the Duke, in the duty of his place of Admiral, as he believeth, ought to have done without such commandment; and, if he had not done so, he might worthily have been blamed for his negligence; and then he instantly sent for the Judge of the Admiralty, to be informed from him how far the sentence then already passed did bind, and whether it might stand with justice to make stay of her again, she being once discharged in such manner as before. The judge answered, as he was then advised, that it might justly be done, upon better proofs appearing; yet discreetly, in a matter of that moment, he took time to give a resolute answer, that, in the interim, he might review the acts which had passed. The next day or very shortly after, the judge came again to the Duke, and upon advice, answered resolutely, that the ship and goods might justly be stayed, if the proofs fell out to be answerable to the information given; whereof he said he could not judge till he had seen the depositions; and, according to this resolution of the judge, did five other learned advocates, besides the King’s Advocate, concur in opinion, being entreated by the Duke to advise thereof, so cautious was the Duke not to do an unjust act. Then he acquainted the King therewith; and His Majesty commanded him to re-seize this ship, and to proceed judicially to the proofs, and the Duke often required the King’s Advocate to hasten the examination of the witnesses; and many witnesses were produced and examined, in pursuance of this new information; but the French merchants impatient of any delay complained again at the Council Board; where it was ordered, not barely, that the ship and goods should be presently delivered upon security; and upon security they had been then delivered if it had been given; and security was once offered, but afterwards retracted; and when all the witnesses produced were examined and published, the King’s Advocate, having duly considered of them, forthwith acquainted the Duke that the proofs came too short for the Peter; and thereupon the Duke gave order instantly for her final discharge, and she was discharged by order of the court accordingly. By which true narration of the fact, and all the proceedings, the Duke hopeth it will sufficiently appear, that he hath not done anything herein on his part which was not justifiable, and grounded upon deliberate and well advised counsels and warrants; but for the doing of this to his own lucre or advantage he utterly denieth it; for he saith that there was nothing removed out of the ship but some monies, and some small boxes of stones of very mean value, and other small portable things easy to be embezzled; and whatsoever was taken out of the ship was first publicly shewed to His Majesty himself, and then committed to the custody of Gabriel Marsh in the article mentioned, by inventory, then and still Marshal of the Admiralty, by him to be safely kept; whereof the money was employed for the King’s immediate service and by his direction; and the rest was left in safe keeping, and are all since delivered and reimbursed to the owners or pretended owners, and not a penny profit thereof, or thereby, hath come to the Duke himself, as shall be made good by proof; and whereas the suggestion hath been made, that this accident was the cause of the embargo of the ships and goods of our merchants trading for France, he saith that it is utterly mistaken; for divers of their goods were embargoed before this happened; and, if, in truth the French had therein received that injury as either they pretended or is pretended for them, yet the embargoing of the goods of the English upon that occasion was utterly illegal and unwarrantable, for by the mutual articles between the two Kings they ought not to have righted themselves before legal complaint and a denial on our part, and then by way of reprisal and not by embargo, so that the Duke doth humbly leave it to the consideration of your Lordships, whether the harm which hath happened to our merchants hath not been more occasioned by the unseasonable justifying of the actions of the French, which animated them to increase their injuries, than by any act either by the Duke or any other.
6. To this article which consisteth of two main points, the one of the extorting of ten thousand pounds unjustly and without right from the East India Company; the other, admitting the Duke had a right as Lord Admiral, the compassing of it by undue ways, and abusing the Parliament to work his private ends:—
The Duke giveth this answer, wherein a plain narration of the fact, he hopeth, will clear the matters objected; and in this he shall lay down no more than will fully appear upon proof.
About the end of Michaelmas term 1623, the Duke had information given him, by a principal member of their own Company, that the Company had made a great advantage to themselves in the seas of East India, and other parts of Asia and Africa, by rich prizes gotten there forcibly from the Portugales and others; and a large part thereof was due to His Majesty, and [to] the Duke as Admiral by the law, for which neither of them had any satisfaction.
Whereupon directions were given for a legal prosecution in the Court of Admiralty, and to proceed in such manner as should be held fittest, by the advice of counsel.
In the months of December and January in that year, divers witnesses were examined in the Admiralty, according to the ordinary course of that court, to instruct and furnish an informative process in that behalf.
After this, the tenth of March 1623 Ref. 013, an action was commenced in that court, in the joint names of His Majesty and the Admiral, grounded upon the former proceedings. This was prosecuted by the King’s Advocate, and the demand at first was fifteen thousand pounds. The action being thus framed in both their names, by the advice of counsel, because it was doubtful in the judgment of the counsel, whether it did more properly belong to the one or to the other, or to both; and the form of entering that action being most usual in that court; on the 28th of April 1624 the judicial agreement and sentence thereupon passed in the Admiralty Court, wherein the Company’s consent and their own offer plainly appeareth; so that, for the first point of the right, it was very hard to conclude that the Duke has no right contrary to the Company’s own consent, and the sentence of the court grounded upon their agreement, unless it shall fully appear that the Company was by strong hand enforced thereto, and so the money extorted.
Therefore, to clear that scruple, that, as the matter of the suit was just, or at least so probable, as the Company willingly desired it for their peace, for the manner was just and honourable; your Lordships are humbly entreated to observe these few true circumstances. The suit in the Admiralty began divers months before the first mention of it in Parliament; and, some months before the beginning of that Parliament, it was prosecuted in a legal course, and upon such grounds as be yet maintained to be just. The composition made by the Company was not moved by the Duke; but his late Majesty himself, on the behalf of himself and of the Duke, treated with divers members of the Company about it, and the Duke himself treated not at all with them.
The Company, without any compulsion at all, agreed to the composition; not that they were willing to give so much if they might have escaped for nothing, but they were willing to give so much rather than to hazard the success of the suit. And upon this composition concluded by His Majesty, the Company desired and obtained a pardon for all that was objected against them. The motion in Parliament, about the story of the Company’s ships then ready prepared and furnished, was not out of any respect the rather to draw them to give the composition, but really out of an apprehension that there might be need of their strength for the defence of the realm at home; and, if so, then all private respects must give way to the public interest. These ships upon the importunity of the merchants, and reasons given by them, were suffered nevertheless to fall down to Tilbury, by his late Majesty’s direction, to speed their voyage the better, whilst they