about Foreign Commerce and can never be thought to bear any sort of Proportion to the universal Law of all Nations as the Interests of all Foreign Trade do necessitate them to contend for It will become us that are Judges in Westminster-Hall for the better determining this Case to observe the Methods used by our Predecessors in determining such like Causes and take notice of the Law of Nations The Common Law by the several Authorities I cited before takes notice of the Law-Merchant and as the Book of Ed. 4. before cited says it is part of the Law of Nations and leaves the determination to be according to that Law the several Acts of Parliament I before cited make a particular Provision that matters of this nature should be determined according to the Law-Merchant which is part of the Law of Nature and Nations and is universal and one and the same in all Countries in the World and therefore Cicero speaking of this Law says Non erit alia Lex Romae alia Athenis alia nunc alia post hac sed inter omnes gentes omni tempore una eademque lex obtinebit and I the rather thought my self obliged more industriously to search into the Law of Nations the better to enable me to give Judgment in this Case the Consequence whereof will affect the King's Subjects in all Parts of the World and I was minded thereof particularly by my Lord Chief Baron Flemming in the giving Judgment in the great Case of Bates about the Imposition upon Currants Lane fol. 27. and does not only affirm it as necessary but the common Practices of all Judges in all Ages Do not we leave the determination of Ecclesiastical Causes to be decided according to the Ecclesiastical Laws Foreign Matters Matters of Navigation Leagues Truces Embassies nay even in the Case at the Bar the stopping of the Defendants Ship by an Admiralty Process was left by the Opinion of all this Court and afterwards by the Courts of Common-Pleas and Exchequer to be decided in the Admiralty and by virtue of a Process out of that Court his Ship is detained to this day and as I said that Court proceeds according to the Law of Nations and the Matters before specified are not to be controled by the Rules of the Common Law. And if Customs make a Law then the Custom of Nations is surely the Law of Nations which brings me to my next particular which is the main thing upon which this Cause will turn Therefore 4thly I conceive that both by the Laws of Nations and by the Common Law of England the Regulation Restraint and Government of foreign Trade and Commerce is reckoned inter Jura Regalia i. e. is in the Power of the King and 't is his undoubted Prerogative and is not abridged or controled by any Act of Parliament now in force This Question is not concerning the Consequences of this Power or any Inconveniences that may happen thereupon because upon Inconveniences arising the King is to be supplicated to redress them which I shall farther take notice of when I come to answer the particular Objections made against this Grant. Commerciorum Jura sunt Privilegiata ac non nisi iis concessa qui exercendorum Mercatorum licentiam Principis indultu authoritate meruerunt is the very express Text of the Civil Law and so is Carpzovires Const. n. 5. Bodinus de Republica lib. 1. Cap. 7. says quae tametsi Jure gentium esse videantur prohibere tametsi saepe á Principibus videmus and in Cap. 6. quoted by Mr. Attorney That the Laws of Commerce are contained in the particular Compacts and Agreements of People and Princes So Salmasius pag. 236. Mercatura est Res indifferens in qua Magistratus vel in vetando vel permittendo suam pro Commodo Reipublicae potest imponere Authoritatem So Carpzovires a famous German Lawyer in his Decisions lib. Decis 105. N. 13. 14. Exempla haud rara sunt ubi Privilegio edicto Principis commercia ad certas Personas certave loca restringere videmus These Rules and Principles asserted to be the Laws of Nations agree with the Principles of our Laws Mr. Attorney in his Argument in this Cause cited many Records and Presidents to make good this Assertion which I think he did with great clearness I therefore will content my self with as few of them as I can and only remind you of such as I think absolutely necessary to make good my Assertion which I will do by these steps I conceive the King had an absolute Power to forbid Foreigners whether Merchants or others from coming within his Dominions both in times of War and in times of Peace according to his Royal Will and Pleasure and therefore gave safe Conducts to Merchants Strangers to come in in all Ages and at his Pleasure commanded them out again by his Proclamation or Order of Council of which there is no Kings Reign without many Instances and the Statute of Magna Charta Chap. 30. so much insisted upon by the Defendants Councel is but a general safe Conduct Omnes Mercatores nisi publice ante prohibiti fuerint habeant salvum securum Conductum c. Where by the way I must observe That Mercatores says my Lord Cook in his Comment upon the Chapter is only intended of Merchants Strangers for I cannot find that in those days any of the Subjects of this Kingdom did apply themselves to foreign Trade or at least the Trade was not so considerable as to be taken notice of in any Book or Record that I can meet with and before the making of that Statute my Lord Coke 2. Institut fol. 57. does agree that the King might and did prohibit Strangers at his pleasure But he conceives and with great respect be it spoken to his Memory I think without any colour of Reason would make these words nisi publice prohibeantur to intend only a Prohibition by Parliament and his Reason is for that it concerns the whole Realm Now did the coming in of Strangers concern the Realm after the making of the Act more than it did before Surely no. Doth not the Power of making War and Peace absolutely belong to the King by his Prerogative and is not that of publick concern to the Kingdom and is not the Prohibition of Strangers a natural dependant upon that Prerogative if the word publice there had been out there had been no colour for that conceit and surely the King's Proclamation will make the matter as publick as an Act of Parliament can do nay and I may say more for Acts of Parliament anciently were made publick by Proclamation for in our Books we have many Instances of Writs directed to Sheriffs of Counties to cause Acts of Parliament to be published by Proclamation and so was the constant and ancient usage and it is not more natural for Strangers that are abroad to take notice of the King 's publick Edicts which is
known to be of great Importance in all Countries more than they would of an Act of Parliament that affects the King 's own Dominions only besides it appears more impertinent if you turn those words into a Proviso and then it will amount to no more in plain English than this provided that this Law shall continue except it be hereafter repealed which surely would be very ridiculous Mr. Attorney and Mr. Sollicitor both in their Arguments quoted several Records and Precedents where the King in all times after the making of that Act did prohibit Strangers from coming in and did command them out when they were here at pleasure I shall not trouble you with the Repetition of the Records for they were many Nay the King when Acts of Parliament had prohibited did grant safe-Conduct and of that sort in Rolls Prerogative 180. you will find several Instances and in the several Acts of Parliament cited by Mr. Attorney to confirm the King's Prerogative as to safe-Conducts it doth appear Syderfyn fol. 441. It is said that the King by the Common Law might prohibit the Importation of Foreign Goods and whoever acted against such Prohibition forfeited his Ship. The King might prohibit any of his Subjects from going beyond the Seas at pleasure and recall them again as he thought fit and that as I have said before without giving any reason the Books of Fitzherbert's N. B. and Register before-cited makes this evident Mr. Attorney indeed cited many Instances wherein the Kings had made use of their Prerogatives as 7 Ed. 2. M. 10. Quadragesimo Ed. 3. M. 24. Stat. of 5 R. 2. Cap. 2. which confirms it 3. Inst. 179. Vicesimo quinto Ed. 3. M. 10. with many more and indeed I think it was not deny'd but that after a Prohibition it was an Offence admitted of by the Defendants Councel for any Subjects to go beyond the Seas Dyer 165. and 296. agrees it And that is sufficient for the present purpose there being a Prohibition in the Charter in question to all Persons that are not there mention'd What influence the King's Prerogative must necessarily have upon Foreign Trade and Commerce appears by his frequent granting Letters of mark and reprizal these are not allowed of by the Law of Nature Civil or Common Law for thereby no man is bound by anothers Act without his Consent but by the general Consent of Nations humana necessitate exigente The King only has the power of making Leagues and Truces with Foreign Princes upon which only all Foreign Trade does depend and those Leagues are made upon such Terms and Conditions and under such limitations as both Princes think fit many Instances to this purpose were also cited by Mr. Attorney to which I refer my self and the differences that arise from Merchants beyond the Seas are to be determin'd according to those Leagues and cannot be decided by the Municipal Laws of this Realm which cannot be put in Execution in Foreign Parts Fourthly The King is absolutely Master of War and Peace which he could not be in case he had not a Power to lay restraint upon his own Subjects in relation to Foreign Commerce Since eo ipso that War is proclaimed all publick Commerce is prohibited and the Councel that argu'd for the Defendant admitted That the King might prohibit his Subjects to go or trade beyond the Seas in cases of Wars or Plagues How strangely preposterous then would it be for a man to imagine that the King should have an absolute Power of War and Peace and yet be deny'd of the means to preserve the one and prevent the other Is not that therefore the great Reason why the King is at so great Expence in maintaining Ambassadors and Envoys in all the Trading parts of the World without which we should be in a perpetual state of War Would it not be monstrous that when the King is entered into League with any Sovereign Prince in a matter of Trade very advantageous to his People to have it in the power of any one of his Subjects to destroy it as for instance Suppose a League between our King and the Emperor of Morocco for a Trade to Tangier were made upon Condition that no English Ship coming there for Commerce should be above a hundred Tun and a Fleet of Merchants Ships within that Condition were in Port at Tangier and Mr. Sands with the same Obstinacy as he seems to appear in this Case should have gone with a Ship of above a hundred Tun to Tangier that would have been an absolute breach of the League we should have been immediately in a state of War the Merchants Goods and Ships absolutely forfeited to the Emperor by the Law of Nations and they and their Families thereby undone without any remedy till Mr. Sands should be pleased to return into England and also bring with him an Estate sufficient to make them a Recompence and then also perhaps it would be difficult to contrive such an Action in our Law to compel Mr. Sands to do it besides the King has no other way if his Ambassadors and Ministers in Foreign Parts cannot prevail that right should be done to his Subjects or if Mr. Sands's Interloping Ship and all its Cargo had been wrongfully taken away from him by any Foreign Prince but by the King 's declaring of a War and compelling them to make Restitution by force the Consequence whereof will affect more than Foreign Traders would be then concern'd both in their Persons and Purses and it would be very hard for all the King's Subjects to lie under the burden and charge and the profits and advantages accrue only to a few and here by the way I think it not improper to take notice of an Objection that was made by the Defendant's Councel of the unreasonableness that the King should be entrusted with this Prerogative For as well as he may restrain Persons travelling to the Indies he may also restrain them from Trading into any other part of the World. The very Objection seems to carry an unsavory as well as an unreasonable mistrust in a Subject to his Prince for as it is a Maxim in our Law the King cannot be presumed to do wrong and I am sure the constant Practice of our Present King has not given us the least umbrage for such Diffidence and I think I may truly say we are as safe by our Princes own natural Inclinations as we can be by any Law in this particular the King has the absolute Power of pardoning all Offenders by his inherent Prerogative which an Act of Parliament cannot deprive him of the Case of Murther is a full Instance of that nor was that Prerogative ever disputed in any Age tho never so troublesome saving in that single Case of the Earl of Danby and that without any Reason that I could ever hear of Is it therefore to be objected and presumed that the King will Pardon all the Traytors Murtherers and Robbers and
other Felons and make use of his Prerogative to let all Malefactors escape The King is the Fountain of Honour as well as of Justice and in vertue of that Prerogative may ennoble as many of his Subjects as he pleases and thereby exempt them from Arrests and other common Processes of the Law by means whereof Men do more speedily recover their just Debts and have redress for Injuries Is it therefore to be presumed the King will make such a glut of Noblemen because he may do it And as this is against his Inclination so certainly it is against his Interest to make such Grants as the Defendant's Councel seems to fear for it is more for the King's benefit than it can be for his Subjects the greater the Importation of Foreign Commodities is for from thence arise his Customs and Impositions those necessary supports of the Crown and therefore in some sence the King is the only Person truly concerned in this Question For this Island supported its Inhabitants in many Ages without any Foreign Trade at all having in it all things necessary for the Life of Man. Terra suis contenta bonis non indiga mercis Says the Poet. And truly I think if at this day most of the East-India Commodities were absolutely prohibited tho it might be injurious as to the profit of some few Traders it would not be so to the generality of the Inhabitants of this Realm And therefore as I have offered these few Instances to prove the King should have such a Prerogative in the next place I come to shew that the Kings of England have exercised this their Prerogative in all Ages and as the King has the power of restraint of Foreign Trade so he is the only Judge when it is proper to use that power which seems plainly to be for the same reason And I think Mr. Williams's remark of the difficulty of this Case that it should necessitate the King to call a Parliament to assist him with power to determine this Question is not to be passed by without some Observation God be praised 't is in the King's power to call and dissolve Parliaments when and how he pleases and he is the only Judg of these Ardua Regni that he should think fit to consult with the Parliament about and Mr. Williams would do well to save himself the trouble of advising the King of what things are fit for him to consult with his Parliament about till such time as he be thereunto called but it hath been too much practised at this and other Bars in Westminster-Hall of late years to captivate the Lay Gens by lessening the power of the King and advancing I had almost said the Prerogative of the People and from hence comes the many mischiefs to the King's Subjects in parts abroad by making the Power of the King thought so inconsiderable as tho he were a mere Duke of Venice being absolutely dependent upon his Parliament Would it not be mightily for the Honour and Dignity of the Crown of England think ye That the Emperor of Fez and Morocco or any Prince of the remote parts of the World should be told that Mr. Sands one of the King of Great Britains Subjects came into the Emperour's Territories against his Prince's consent and that he had no power to hinder him unless he would consult with all his Nobles and the Representatives of all his common Subjects to assist therein Would not the Emperour believe Sands to be the greater Prince of the two But though such sort of Declamations are so much for the service of the Crown and for the Honour of the Kingdom as they would have it believed yet I think they have the same tendency of Duty and Service to the King with some other matters that of late have happened amongst us viz. Some have been so concerned as well for the safety and security of his Majesties sacred Person and to make him formidable to his rebellious Subjects at home as to desire that his Guards might be discharged because it looked as tho he designed to rule by a Standing Army and to shew their tenderness to his Sacred Life would have him removed from the assistance of evil Counsellours as they called them and put himself into the hands of Assassinates as though one murdered Prince were not sufficient to satisfie that piece of State-policy in one and the same Age and in order that he might have sufficient to support the Necessity as well as Dignity of a Crown which all good Subjects are zealous for some of late have industriously endeavoured to have prevented him from being able to borrow any Money upon the Credit of any part of his Revenue a priviledg that the meanest of the Persons concerned in that Question would think themselves highly injured to be debarred of These and the like attempts if not prevented will render the King and his Government low and despicable in all other parts of the World and as for the instance between a Denizen and a Man Naturalized I think it rather makes against than for Mr. Williams's Conclusion as to the main Question for though the King cannot Naturalize a Man and thereby give him inheritable bloud as a natural born Subject to inherit Lands yet he may make an Alien a Denizen and by that means he becomes to have as much priviledg as any of the King 's natural Subjects hath as to Trade and Commerce which is the onely question now before us and I cannot help being of Opinion that this Kingdom was in greater regard abroad and the Inhabitants thereof more prosperous at home when the Prerogative of the Crown was more absolute than now it is therefore it is our Duty as good Judges as well as good Subjects to endeavour to support it as much as we can by Law. And so I proceed to mention some Presidents and Authorities whereby the Kings of England have in all ages exercised this part of their Prerogative of Restraining disposing and ordering matters of Commerce and Forein Trade by Royal Licences Charters and Dispensations And herein I shall content my self with as much brevity as I can onely in producing some few of those many instances which were with great care and industry found out by Mr. Attorney and Mr. Sollicitor and by them so learnedly and properly applied to the Case in question I. Therefore it has been well observed that the Staples which were the common and publick Marts for all Merchants to resort to were first erected by the King's Prerogative without any Act of Parliament as it doth plainly appear by the several Acts of Parliament mentioned at the Bar either for setting the Places or enlarging the Commodities that were permitted to be brought to the Staple for surely in all times when the Staple was fixed in the Dominions of any other Prince that must be done by League which none can make but the King. To instance one Authority for all the Stat. 2 Ed. 3. Cap. 9.
expresly says It is enacted that the Staples beyond the Seas and on this side ordained by Kings in time past c. Mr. Attorney and Mr. Sollicitor cited several Records and other Acts of Parliaments that allow this to be the King's Prerogative absolutely which I shall onely name they having opened the particulars at large viz. Vicesimo E 1. Plac. Parl. Rolls Abrid fol. 108. 130. Octavo E 3. numero 20. 27 E. 3. Cap. 1. 43. E. 3. Cap. 1. 47. E. 3. N. 17. Prim. R. 2. N. 98. with many more which did not onely Licence Merchants to repair to their several Staples but prohibited them from carrying their Staple Commodities to any other places and the several Acts of Parliaments made touching the Staple onely inflicted greater Forfeitures upon the Persons offending more than the King by his Prerogative did inflict but neither added to or diminished any part of the Power of the Crown the truth whereof will also farther appear by the consent of the Parliament plainly declared in several Statutes following viz. 2 Hen. 5. Cap. 6. 2 Hen. 6. Cap. 4. 8 Hen. 6. Cap. 17 and 27. by which and several other instances both by Mr. Sollicitor and Mr. Attorney I do conceive it does plainly appear that the Statute of 2 of Ed. 3. Cap. 9. Nono l. 3. cap. 1. Decimo quarto Ed. 3. cap. 2. the Stat. of Decimo quinto Ed. 3. mentioned in the Defendants Plea Decimo 8. Ed. 3. cap. 3. which the Defendants Councel have so much insisted upon for the opening the Liberty of Trade onely concerned Merchants of the Staples and by the Acts of Parliaments made relating to that Trade since particularly mentioned by Mr. Attorney stand now repealed And tho the place of the Staple as well as the Commodities were ascertained by Acts of Parliaments yet the King granted to Merchants Licences to trade elswhere which Prerogative is allowed of by Acts of Parliaments and other Authorities in our Books for instance amongst many others the Stat. 8 Hen. 6. 21. 22 Hen. 6. cap. 4. 15 Hen. 6. cap. 3. 27 Hen. 6. cap. 1. 1 Hen. 7. fol. 3. A. 13 Ed. 4. fol. 3. l. 5 E. 4. 33. amongst other Books make it appear And as well as the King before those Acts of Parliaments mentioned ordered the Merchandizes of the Staple so all other Forein Trade not taken notice of by Acts of Parliaments were begun and absolutely disposed of by the King's Prerogative for as my Lord Coke in his Comment upon Magna Charta cap. 30. does truly observe that by Mercatores there onely is meant Merchant-strangers for as I said I do not find that any of the Subjects of this King meddled in Forein Trade in many years after the making of that Act the first instance I meet with is in Malin's Lex Mercatoria fol. 150. of the Society of Merchants which is the Staples Adventurers made by a Grant from King Edw. III. and were called the Brotherhood of St. Thomas a Becket of Canterbury till the time of Hen. 7. who confirmed their Charter but changed their Name to that of Merchant-Adventurers by which Name they continued a Corporation â— And that the King did shut and open Forein Trade at his pleasure by many instances mentioned by Mr. Attorney and Mr Sollicitor does farther appear 33 Hen. 3. memb 1. 2 E. 3. pars secunda memb 35. 3 Hen. 3. N. 33. Rolls Prerogative 170. and 214. before-cited primo Hen. 5. 41. decimo octavo Hen. 6. N. 60. and the Stat. of 12 Hen 7. cap. 6. which I have caused to be searched and in Plowden's Commentaries in the great Case of Mines-Royal it is set down as a Rule that antient Charters and Grants of the Crown are the best Evidences of the Prerogative Phil. and Mary erected the Corporation of Russia Merchants by Charter with a Prohibition to others with the like Conditions within mentioned in the Charter at the Bar and was afterwards approved of in Parliament in 8 Eliz. and the Forfeiture mentioned in the Letters Patents made more effectual and as Mr. Attorney did truly observe that when Callis was taken and thereby the Staples unsetled Queen Eliz. thought according to the President of the Russia and other Companies it was most advantageous for the carrying on of Trade and Forein Commerce to erect Societies and Corporations which was well approved of in those times and so has continued ever since undisturbed until this present Question which I shall more particularly insist upon when I come to discourse of the next Head. And here by the way I shall onely remember that there were many Records and Books cited by the Councel at the Bar to prove the difference between alien Enemies and alien Armies and how these Infidels are in Law look'd upon as perpetual Enemies and the many Cases that were cited about the Jews and others I think will not be necessary to be farther insisted upon for I conceive they do not concern the Question that is now before us for were not the Charter now in question in being it would be worth while for Mr. Sands to consider how far he might be obnoxious to punishment for trading with Infidels who are in Law called Perpetui inimici and therefore I conceive it is as Penal for any of the King's Subjects to trade with Infidels who are alien Enemies without a Royal Licence as it is to trade with alien Armies contrary to a Royal Prohibition and I cannot conjecture how he will avoid this Rock notwithstanding his pretended skill in Navigation without making use of this Charter as a safe-conduct to him by Implication though he seems here so much to struggle against and how far that would prevail for his benefit may be also considered But as I said before IV. The true Question is Whether this be a good Grant to the Plaintiffs of a sole Trade to the Indies were the Inhabitants thereof Christians or Infidels exclusive of others be good or not is the true Question and therefore I proceed to the next Step that though unlawful Engrossing and Monopolies are prohibited by the Laws of this and of other Nations yet I do conceive that the Charter now in question of a sole Trade exclusive of others is no such unlawful engrossing or Monopoly but is supported and encouraged as conducing to publick benefit by the Law Practice and usage of this and other Countreys and herein by the way though the word Monopoly or Engrossing generally spoken of are odious in the eye of our Law yet some Engrossings and so some Monopolies are allowed of in our Books and so I desire to be understood when I say a lawful or unlawful Monopoly or a lawful or unlawful Engrossing and in as much as this is the great and as I think the onely Objection that either hath or can be made against the present Charter I shall be the more particular in giving my Opinion therein with the Reasons aud Authorities that have induced me
Dutch from trading into such part of Indies whereof the Spaniards were not possessed upon pretence that they had the Dominion of those Seas Inter Nos Hispanos says he heac Controversia est sitne immensum vastum Mare regni unius nec maritimi accessio Populóne unquam jus sit volentes populos prohibere ne vendant ne permutent ne denique commeent inter sese and for the benefit of his Countrymen he doth therefore assert licere cuivis genti quamvis alteram adire cumque ea negotiare which taking that to be true which by the Law of Nations is certainly otherwise yet nothing can be inferred from thence but onely the Question of Commerce between one Nation and another and how that was before Leagues and Treaties were made little may perhaps be found as Mr. Attorney well observed besides the Laws of Hospitality which do not give any Demandable Right but surely Grotius there hath no particular respect to particular Subjects of this or any other Nation how far the Supream Power of any Nation may erect a Society of Trade to a certain place and for certain Commodities exclusive of all other Subjects of their own And that plainly appears both from the Scope of his Book as also for that for several Years both before and at the Time of publishing that Treatise the Dutch East-India Company was established which I shall have farther occasion to discourse of by and by As for Welwood's Epistle I have seldom observed that Epistles have been cited in Westminster-Hall as Authorities yet supposing it to be so that all loyal Subjects shall have their Petition granted to Safety and Security in their Trade I suppose Welwood little dreamt of Interlopers when he talked of loyal Subjects if it can be meant only of such who may trade by Law that is to beg the Question in respect of the Plaintiff and Defendant as to that of Britton that the Sea is common it is answered by what hath been said before And VVelwood Page 66. says that by commune or publicum is meant a thing common for the Use of any one sort of People according to that saying Roma communis Patria est but not for all of all Nations VVelwood page 66. That Passage of Burrough is only observed to prove the Kings Prerogative within the four Seas And though Mr. VVilliams would have insinuated as the Sturgeons and other great Fish and Wrecks and the like had come to the King by the Statute of the 17. E. 3. C. 11. that Act was but a Declaration of the common Law for he had it by the Right of his Prerogative Plowden's Commentaries in the Case of Mines Cook 5. Sir Henry Constable's Case these things were vested in the King by his Prerogative by the common Law yet I cannot but observe that the Treatise of Mare liberum on which Mr. Williams so much relyed was craftily writ to overthrow the King's Prerogative in that beneficial Part thereof relating to the Fishing on the English Coasts and contains a plain Proclamation for all Persons of any Nation indifferently to Fish in all kinds of Seas for says cap. 5. fol. 10. quae autem Navigationis eadem Piscatus habenda est ratio ut communis maneat omnibus and herein though Mr. VVilliams intends to make good the Premisses I presume that Mr. Pollexfen that argued on the same side has a greater concern for his Friends in the West than to join with him to make good that conclusion And before I go off from this Point I think it not amiss the better to clear the way to my conclusions to give some Instances wherein other Nations as well as our own have not onely thought it legal but necessary for their several publick Advantages to put restrictions upon Trade and did not think it injurious to natural Equity and the Freedom of Mankind so much discoursed of on the other side To give some few instances Videmus Jura Commerciorum says Bodin de Repub. lib. 1. chap. 7. Non solum omnibus populorum principumque inter se conventis verumetiam singularum Statutis c. And after he has enumerated the Compacts for Trade between the Pope and the Venetians between the Citizens of the Hantz Towns and the Kings of England France Spain and several other Countreys illi says he inter se Commercium multis modis personarum mercium locorum temporum atque omni aliâ Ratione coarctarunt So is Marguardus fol. 155. and Buchanan in his 7th Book de rebus Scotiae and in all Countreys the Importation and Exportation of some Commodities are prohibited as Salt from France Horses from other Countreys Wool from hence In whomsoever that Power of restraint does remain the Power of Licensing some and restraining of others surely does also remain by parity of Reason but of that more by and by and as Mr. Attorney did truly observe upon perusal of the Statutes that are now in Print relating to Trade the Parliaments have in all Ages even to this Kings Reign since his Restauration thought fit to make more Laws to prohibit forein Trade than to encrease it as looking upon it more advantageous to the Common-weal And thus having observed that other Nations as well as we have not onely thought it legal but necessary to make Laws for the restraint of Trade and thereby thought they did no injustice to the Liberty of Mankind III. I proceed to the next Step. I shall therefore thirdly endeavour to prove that Forein Trade and Commerce being introduced by the Laws of Nations ought to be governed and judged according to those Laws and I do not know of any Statute or Book of the Common Law now in Print that doth oppose this Assertion Cokes 3. Inst. fol. 181. in the Margin cited by the Defendants Councel at the Bar Commercium says he Jure gentium esse debet nay it is the Express Text of the Law ex Jure Gentium Commercia sunt instituta which being laid down as undeniably true and so admitted to be by the Defendants Councel I would infer from thence since Commerce and Traffick are founded upon the Law of Nations by the natural reasons of things all Controversies arising about the same should be determined by the same Laws especially where there is no positive and express Law in that Countrey where such Controversies do arise to determine them by And Mr. Williams seems to allow that these are no such Laws in this Kingdom for he thinks that the Controversie now before us is not to be decided but by Parliament All other Nations have governed themselves by this Principle and upon this ground stands the Court of Admiralty in this Kingdom viz. that there might be uniform Judgments given there to all other Nations in the World in Causes relating to Commerce Navigation and the like and in as much as the Common and Statute Laws of this Realm are too straight and narrow to govern and decide Differences arising
Question for if the King by his Prerogative have the power of restraining and disposing Foreign Trade where Acts of Parliament have not interposed as by the Presidents already cited I conceive clearly he has as inherent to his Crown and therefore as he may restrain all so he may restrain any part by the same parity of Reason If the King proclaims a War with any Country which is a general Prohibition of Trade and should order that John a Styles or a dozen or any greater number of his Subjects c. and give them Instructions to treat for a Peace and the Persons so appointed should carry on a Trade would not Mr. Sands do you think have as much reason to murmur that he was none of those Ambassadors as he has now by being not comprized within the Charters And would it not be thought an Arrogancy and Sauciness in him to demand an account of the Instruction given by the King to such Ambassadors or durst he Trade there till a Peace were proclaimed with that Country And the gloss upon that Law says Mercatores non faciant inter Monopolium de re non vendenda nisi pro certo pretio vel de non exercendo officium nisi per eos recipiatur Officiales Socios Possunt tamen haec facere cum consensu scientia Regis contra facientes perpetuo exulabunt eorum bona Regi applicantur Ex Privilegio ergo Regis possunt similiter Consuetudine vel praescriptione quia quod Privilegio acquiritur etiam praescriptione acquiri potest And there quotes ubi dicitur quod potest concedi Privilegium quod quis solus piscetur in certa parte Maris aliàs potest prohibere 3. In France Monopolies are prohibited also Sub poena Confiscationis corporis bonorum indict Const. Fr. 1. Art. 191. Notwithstanding which there are established several Corporations for Trade I will name but two Anno 1657. The French King makes a grant of the sole Fishery in his Dominions to a Society excluding others upon pain that Interlopers should incur the Penalty de Confiscation des vaisseaux Merchantdizes de dix mille Livres d' Amendes Aytz. vol. 4. Pag. 207. And in the Year 1664. the East-India Company by his Declaration with an Exclusion to all others like our East-India Company p. 74 75. In the Vnited Provinces the Laws against Monopolies are the same yet there always were several Trading Corporations exclusive of all others 3 June 1621. In the Charter of the Dutch West-India Company it is granted thus And in case any one shall go to or negotiate in any of the aforesaid Places granted to this Company without consent of the said Company it shall be upon pain and forfeiture of such Ship and Goods as shall be found to Trade in those Coasts and Places which being presently and on all sides on the behalf of the said Company set upon taken and as forfeited shall be and remain to the Use of the said Company Aytz. vol. 1. p. 62. Sess. 1. And in case such Ships or Goods be sold or fly into Lands or Havens the Riggers and Part-owners thereof shall and may be distrained to the value of the said Ships and Goods That the aforesaid Company shall within the said limits make Governors Officers of War and Justice and for the other necessary Services for the Preservation of the Places and maintaining of good Order Policy and Justice and the advancement of their Trade shall appoint dispose and displace and substitute others in their Places as they shall find their Affairs do require All Ships coming to any place where the Company have their Garison and Government shall not transport thence any Men Goods or Money without leave and consent of the Councel upon the pain and forfeiture of six Months wages c. In the Grant to the Dutch India Company 20. Mar. 1602. That no body of what Quality or Condition soever shall for the space of twenty one years pass Eastwards of the Cape of Good Hope upon forfeiture of Ships and Goods Aytz. 1. vol. fol. 157. That the said Company may appoint Governours and Offices of War and Justice and for other necessary Services for the Preservation of their Places and Maintenance of good Order Policy and Justice The said Officers to take the Oath of Supremacy to the States General and of Fidelity as to what concerns Trade and Traffick to the Company And afterwards the 9th of Sept. 1606. a Placaet was published That no body directly or indirectly shall pass or trade beyond the Cape of Good Hope upon pain of Death and forfeiture of their Ships or Goods which shall be found to have done or to do so And tho they should absent themselves out of the Vnited Provinces yet the Sentence shall go on and be decreed and executed with the present Confiscation and selling of their Goods Actions and Credits Idem Page 158. And surely the Dutch have been always by us esteemed as our greatest and most dangerous Rivals in Trade And as for the Reason and Necessity of establishing this way of Trading by Companies see the Judgment of Thuanus lib. Hist. 124. 130. Where making mention of the East-Indies he saith thus Diversis itineribus hujus Regionis Incolarumque Ingeniis cognitis tanta frequentiâ à privatis haec ipsa Navigatio Commercium exercitum fuit ut alter alterum fere ivisset perditum Ad obviandum itaque huic malo visum fuit An. 1602. quibusdam hujus Navigationis mercatoribus praepotentum Ordinum consensu certum constituere corpus cujus tantummodo c. The Indians being Infidels are by Laws esteemed common Enemies and the Opinion of my Lord Cook in Michelboum's Case I think therefore to be Law notwithstanding the Objections that have been made against it which none of our Books warrant Now the King by his Charter makes the Plantiffs as it were his Embassadours to concert a◠Peace and Mr Sands murmurs because he is not one of them The King may grant a Fair or Market to every Subject he has but because he grants that priviledg to some of his Subjects have the rest any just ground of complaint because the King may pardon every Offender but will not pardon any Highway-men now in Newgate must those Goal-birds therefore think themselves injured in their liberty and property Because the King granted to his Town of Hull that no other Ships should be there freighted for Forein parts till the Ships of that Town were first freighted as he did Rot. Claus. 41. E. 3. memb 25. did London Dover or any other Town of Trade complain Would any of these Gentlemen that contend for this liberty of Trade adventure with their Fortunes to Algiers and when they are seized upon by the Algierines tell them we are English-men and we have by the common Law of England and many Statutes of our Kingdom which support the liberty of the Subject a freedom to trade
and it is observable that in the 43 and 44 of the Queen the Parliament took notice of many Patents of Monopolies as it appears by the Books cited at the Bar. Townsend's Collections 244 and 245. the Parliament seem'd to be as high as ever they were in any Age before and particularly were incensed by those Pattents a list of all were brought in by Mr. Secretary Caecil that were thought grievous or prejudicial to the Commonwealth and though there were a Catalogue of forty or fifty amongst whom that of Darcy is one yet the Parliament nor none other complained of any Charter granted to Corporations but they continued undisturbed And by the way 't is not amiss to observe that Darcy's Patent was not immediately damned in Parliament but referred to take its fate in Westminster-Hall the great reason that guided that Judgment was the restraint that was put upon the Home-Trade and so it appears in More 's Reports 672. and thus stood these Charters the China Charter the Turky Company the Barbary Company the Guiny Company all Charters of sole Trade excluding others remained in Trade during all Queen Elizabeths time But in the third year of King James was the first Act made for opening a general Trade to Spain Portugal and France to all the King's Subjects which could not be done in Westminster-Hall as appears by the Preamble to that Act nor does that Act call those Charters Monopolies or open a free Trade to any other parts of the World but leaves all Charters of Forein Trade save to Spain Portugal and France to remain as they did before And in the 4. Jac. cap. 9. there is notice taken particularly of the Charter granted to the Exeter Merchants of the sole Trade to France and because it was thought to be damned by the general words of that Statute D. 3. yet it is there enacted and declared that the said Statute of Patents neither did or should dissolve annihilate or impeach the said Charter or the said Company in any of their Priviledges Liberties or Immunities granted unto them by the said Charter any thing contained in that general Act to the contrary notwithstanding and from this Act of Parliament I observe two things I. That the Parliament thought that the Charter to Exeter for sole Trade to France exclusive of others was for the publick benefit and weal of that City II. That the Letters Patents were good in Law and did not want the assistance of an Act of Parliament to support them for that Act does not confirm those Letters Patents but provides onely that the Statute 3. Jac. should not by general words be thought to Impeach or destroy them Now had the Parliament thought the Charter void or infirm they might have confirmed or strengthened it as the Russia Patent was but they concluded that had it not been for the Statute of tertio the Charter was good to all intents and purposes and this I take to be a full Authority in the Case at the Bar. But to proceed the Greenland Patent for sole Fishing exclusive of others granted by Queen Eliz. is held good Rolls part 5. fol. 3. Taylor of Ipswich his Case and the Case of the Abbot of Westminster is agreed to be Law in Darcy's Case Moor 673. by Mr. Justice Doderidge and by the way he gives good Advice to all Persons that dispute the King's Prerogative and for the friendship I bear to Mr. Sands and others that are now in Court and I think need the Advice I shall read the very words of the Book He that hews above his Hands Chips will fall into his Eyes Et qui majestatem serutatur principis opprimetur splendore ejus In King James's time many Grants like ours were made but particularly in 7. Jac. the Patent granted to the East-India Company by Queen Eliz. was the advice of all her Council as well as by my Lord Hubbard then Attorney General and Sir Francis Bacon Sollicitor General confirmed and allowed with the same clauses as the Charter at the Bar and so remained undisturbed and uninterrupted all King James's Reign and was not thought to be any whit touched or aimed at by the Proviso in the Statute 43 Eliz. cap. 1. sect 9. that Act only pointing at the Monopoly Patents complained of in that Parliament of 43 of the Queen which I mentioned before Then comes the Statute so much insisted on by the Defendants Councel commonly called the Statute of Monopolies Stat. 21 Jac. cap 3. which certainly doth not at all affect the Case at the Bar. For first this Charter is not a general Grant for the sole buying selling making using of any thing within this Realm which are the very words of the Acts nor does this Charter give the East-India Company licence or toleration to do use or exercise any thing against the tenour or purport of any Law or Statute which are the onely things provided against by that by Act. But the Parliament then seemed to take the same general care of all such Charters as this at the Bar as the Parliament did in 3. Jacob. of that particular Charter of Exeter and therefore to the end that those words in the beginning of this Act of Monopolies might not be thought to extend to Charters to Corporations for Trade there is a Proviso sect 9. That that Act shall not extend to any Corporations Companies or Fellowships c. erected for the maintenance enlargement or ordering any Trade or Merchandize but leaves the same as they were before that Act without any Immutation and it is observable that the Parliament then thought a General Saving sufficient to support those Charters that were then in being to Corporations for Trade and Merchandize but made particular Proviso's for the saving of Patents for Inland Commodities viz. such as Salt Gunpowder Ordinance Shot and the like So that this Company was in full possession of their priviledge of sole Trade exclusive of others all King James and K. Charles the first his time till all the Prerogatives of the Crown were invaded and the crowned Head too was taken off by Traytors and Rebels but the Providence of God having restored us our King and reinvested him with all his undoubted Prerogatives as well as restored us to our antient Rights and Priviledges and scarce as I may say warm in his Throne but amongst the other considerations that he had for the publick weal of his Subjects he considers the publick advantage of this Kingdom arising by Trade and amongst them one of his first thoughts are fix'd upon this Company for the third of April 1661. He by his Letters Patents taking notice of the Charters of Queen Elizabeth and King James granted to the East-India Company and of the injuries that were done to them by the late Troubles with the advice of his Council and approbation of Mr. Attorney Palmer and my Lord Chancellour Finch he granted and confirmed to them all their priviledges The 27th of May in the 20th of