Years since they were driven out for till then for near the Space of 700 Years the Moors possessed both Spain and Portugal Have we not Leagues and Treaties with the Princes and Inhabitants of the Infidel Countries receiving Embassadors from them and sending Embassadors to them and Ministers always residing with them Have we not from Time to Time Peace or War with them in like manner as with Christian Kings and Countries If Infidels be perpetui Inimici if in perpetual Enmity then we may justifie the killing of them as those that we are in Hostility with wheresoever we meet with them 17 E. 4.13 b. 2 H. 7.15 Adjudged that any Man may seize and take to his own Use the Goods of an alien Enemy 'T is the Price of his Adventure and Victory over his Enemy If an Infidel be any Enemy any Man may then take away the Goods of an Infidel and have them to his own Use And this would be a good Trade if this be so Mr. Sollicitor in his Argument was pleased to cite many ancient Rolls out of H. 3. and E. 1. and about those Times concerning those Princes handling the Jews In Mr. Pryn's Book that he calls The second Part of a short Demurrer to the Jews long discontinued Remitter into England printed in 1656. In which Book I believe an hundred Records and Histories are cited to shew how they were about those times handled The Time that they did exact and much enrich themselves by Usury to the great Impoverishment of the People And that the Princes of those Times polled them taxed them and took it from them again at Pleasure But besides Mr. Pryn Stat. of Merton C. 5. made 20 H. 7. was my Lord Coke saith 2 Inst 89. principally intended against the usurious Jews Stat. de Judaismo 18 E. 1. Recites that the King's People were disinherited by the usurious Jews And enacts That no Jew for the suture shall take Usury My Lord Coke saith 2 Inst 507. that 15060 Jews thereupon departed the Kingdom But for the Use that in arguing is made of this matter of the Jews and of the King 's seizing their Estates and pardoning for dealing with them 1. As for those ancient Records in general Time hath hidden the Knowledg of the Laws and Transactions of those Times It is impossible to know what the Laws of those Times were or rightly to distinguish betwixt legal and violent Acts And to bring Inferences from thence to conclude in Judgment now is Notum per Ignotius Or like Dependencies which unless latter Times have concurred or agreed with are only fit to make Disorder and Confusion 2. But that which is deducible from thence is not as I conceive what hath been endeavoured That is that they had no Property because the Princes of those Times took from them their Estates when they pleased or taxed them how and in what manner they pleased But perhaps the Reason was because those People lying under the Curse and being a vagrant People without Head Prince or Governour or Country it was no Difficulty to tax or take from them at Pleasure being hated of the People where they lived For it could not be as they would have it that they should be amongst us as alien Enemies for an alien Enemy can make neither Bargain nor Contract nor be capable of Property But the Subject may at his Will and Pleasure fall upon and take all that he hath to his own Use as upon the King's Enemies and what he can take from him is his own Acquisition as the Prize of his Adventure and Conquest over his Enemy And to prove this two Books are cited 17 E. 4. and 2 H. 7. But by what is admitted by them that they were great Usurers and had great Estates It is evident that they were treated as alien Amies How could they else in such Multitudes live amongst us How could they be Usurers or get Estates if they could not make Contracts How is it possible they could preserve their Bodies or Estates against the King's Subjects unless they had the King's Protection and treated as alien Amies And of latter Times how many of them have lived amongst us driven great Trades have had and have at this present considerable Estates Let it be now adjudged that any Man that will may take away their Estates that they can have no Remedy or Action for any Debt owing to them but instead thereof may be beaten and imprisoned as Enemies to the King And we shall probably see what the Success of such a Judgment will be The Act of Navigation made the 12 Year of the King 12 Car. 2. cap. 18. concerning Trade shews that Infidels have the same Liberty of Trade as others That Act being made for Encrease of Shipping and Navigation and prohibiting Goods to be imported by any foreign Ships except the Ships of the same Country where the Goods do grow or arise distinguisheth not betwixt Infidel and Christian Countries But expresly saith That Currants nor Commodities of the Growth of the Turkish or Ottoman Empire shall be imported but by English Ships except Ships of the Built of that Country or Place where the Growth is and whereof the Master of the Mariners is of that Country or Place This Clause shews plainly that the Infidels of the Turkish and Ottoman Empire have Liberty of Trade here And the Acts of Tunnage and Poundage tax all their Merchandizes without saying brought in In Southern How 's Case 2 Cr. 469. where a Man imployed another to sell Jewels for him in Barbary as true Jewels and he sold them to the King of Barbary for 800 l. as true Jewels when they were counterfeit and thereupon the King of Barbary finding himself cheated imprisoned the Plaintiff that sold them to him till he repaid his Mony In that Case 't was of all sides admitted and not as much as objected that this Contract was void because the King of Barbary was an Infidel So that this Opinion that Infidels are perpetual Enemies and in perpetual Hostility can maintain no Action nor have any thing amongst us hath no Authority for its Foundation but only some extrajudicial Sayings without Debate or Consideration And is against all the continual Practices of Princes and People at all Times Perhaps 't is no small Part of Religion that Men should speak and deal plainly and uprightly one with another We do know that Religion hath been too often made a Cloak and Vail for other Ends and Purposes It should not be so And I hope will not be so used in this Case The Statutes that I have cited of Magna Charta c. 9. E. 3. 25 E. 3.2 and 11 R. 2. All declare and enact the Freedom of Trade in general Words except only such as are in War with the King In none of them is there any Exception of Trade with Infidels Can it be imagined that in those Days we had no Trade with Turkey or Barbary Our
proposed or applyed upon good grounds Those Trades that have carried out much of the Coyn we had may probably in time carry away what is left or shall be gotten hereafter if care be not taken to prevent it In the Two Last Reigns about Five Millions of Milled Money was Coyned What Coyned the Two last Reigns and about Five Millions of Guineas the most of which and much of our weightiest Hammered Money is supposed to be Exported for little appears of it besides much Bullion that was Imported in those Years of Peace and Plenty of Trade for though much of that happily went to supply the want of Plate in Families which was consumed by the Civil War yet a great quantity was then also Exported which is a plain discovery that the Ballance of Trade stood against us in those dayes though then not so much taken notice of or felt as now occasioned by this long and expensive War with France and great Losses we have had by Sea It may not be difficult Carried out by the French Trade without making any new inspection to give an account of some Trades that did exhaust our Treasure before the War Upon an Examination taken out of the Custom-House Books in the Year 1669 it did appear that we stood Debtors to France upon the Ballance of Trade about One Million And it is concluded that for Thirty Years successively they had a very great advantage upon us The Wines Brandies Silks Linnens and other Goods Imported usually amounted to One Million and half and the little they took from us not half a Million having either prohibited or laid such Duties on many of our Goods as hindered their Expence Therefore not strange the inequality should be so great or that vast quantities of our Bullion Coyn or Treasure was carried from us to adjust those Accompts The immente Quantities of Deales and Timber which have been Imported into this Kingdom Northern for the building Thirty or Forty Thousand Houses in and about London and many in other places since the great Fire added to the Cost of our Naval Stores from Denmark and Swedeland have for Thirty Years brought us Annually much in Debt to those Nations for those Countries take few of our Goods from us therefore most of what we take from them is paid in Money In One Year there hath been Exported for carrying on the East-India Trade India Trades about One Million in Bullion and every Year great Sums Whether the Goods they bring and Export to Foreign parts bring back the like Sums in Bullion may be worth an inquiry There may be other Trades that may have sometimes carried out our Coyn or Bullion but if no great Sums and by the alterations which often happen in Trade do at other times bring back the like Species cannot be so pernicious as these mentioned The Trades we drive to Spain Portugal and Italy Of Spanish Portugal Italy Trades are not suspected to occasion the carrying out of our Coyn though the Wines from the Canaries and Currants from Zant which cost great Sums Annually do abate much out of the Ballance of those Trades which would otherwise stand more in our favour But if great difficulties should appear to any method that can be proposed to prevent it better to be permitted than indanger any interruption in those Trades because upon casting up the total of our Exportation and Importation will probably appear beneficial The Turkey Trade consumes so great quantities of our Cloth Turkey Trade and other Commodities that it may be reckoned as one of our best But of late Years the sending of Silver thither though it be most from Spain or Italy to purchase Raw Silk or other Goods is too much increased may deserve an inquiry to be prevented if possible if not being most is for purchasing Raw Silk to be further Manufactured here or Exported if we cannot have it from any other places on better terms may be found advisable to permit it This Trade is carried on under a Regulated Company whether in all Points convenient or their Charter needs additional Powers or Alterations or the Power lodged in the Company by their Charter be duely executed without oppression or hinderance of Trade may be worth an inquiry Our Trade to our Plantations or West-India Collonies takes off great quantities of our Products and Manufactures Plantations as well as Provisions and Handicraft Wares and furnishes us with some Goods for a further Manufactury and others in great abundance to be Exported to Foreign Nations especially of Sugar and Tobacco And although some Objections may be made against the use and necessity of those Commodities yet being so introduced amongst us as it may be impossible to prevent our having them from other Countries and being a Trade which imployes vast numbers of Ships and Seamen ought to be incouraged for having lost so great a part of our Fishing Trades these Trades and that to Newcastle are now become the chief support of our Navigation and Nursery for Seamen And if all back doors could be shut that all the Products Exported from those Collonies might without diminution be brought to England that what are not spent here might be Re-exported from hence and those Collonies as the proprietors are English made to have their whole dependance on England the fruits of their labours to be as much for the advantage of England as of those that stay at Home then all incouragement by easie Laws Regulations and Protection should be given to them they having more opportunities and being under a greater necessity of gaining more Laborious People from whence Riches must arise to help to make great improvements than England or any other of the Dominions belonging to it And if it be considered what Porests and Deserts have been improved and Riches acquired in some of those Collonies in so short a time as the Age of a Man it must be agreed what hath been asserted That the Original of moveable Riches is from Labour and that it may arise from the Labour of Blacks and Vagrants if wed managed Holland being so near us Holland the Trade between us is like our Home Trade from one Town to another When they have any Commodity they can afford cheaper than we a small Consideration brings it here the like from us to them which amounts to a great quantity in a Year Because being a Trading People they furnish a great part of Germany and many of their Neighbouring Countries being as a Magazine for a General Trade supply what they want of their own by fetching Goods from the East-Indies and other parts by which and by being Frugal and Laborious and having great conveniencies in their Navigation by Building and Sailing cheap they have advanced themselves by Trade more than other Nations that have plenty of their own To adjust how the Ballance of this Trade stands will be more difficult than any other because it varies very
to be Double or Treble what it now is yet without a new Settlement and larger Stock the Advantages will be Contracted to as few Persons as now it being probable that as it hath been more and more ingrost ever since the Year 1666 when first it begun to get Repute no one Man having then to the Value of 4000 l. Stock now several 50000 l. a Peice and One above 100000 l. So the same Temptations will occasion the further Ingrossiing of it thereby to keep the Management in their own hands by which they will continue Reaping the Advantages of the said Trade though should grow never so great and have as much Security for their Mony as the Treasure of the Nation taken up on a Common Seal can afford Because other Trades having for several Years past afforded no Considerable Gains several Persons who could not procure Admission into this Company have ingaged into an Interloping Trade which may in time prejudice the Trade it Self which the opening of Books for new Subscriptions and the inlarging of the Stook may probably prevent because it would draw in most of the Trading People of the Nation to be concerned and Leave no Temptations for the Interlopers to continue Trading Separate Because it is apparent the Turky Trade is of great Advantage to this Nation Exporting Yearly above 400000 l. in our Manufacturies and bringing home profitable and necessary Goods in return thereof and in danger to be destroyed by this from the India by their Importation of such an abundance of Wrought and Raw Silks It would be Severe if they who have deserved well of the Nation by Carrying on that Trade should have no way to come into this which is like to destroy theirs Without New Subscriptions there can be no way of coming into this Trade under this Charter but by Buying Shares in the Stock of the present Adventures which is to reduce the Liberty and Freedom which hath always been approved for Admission into Trade to the same difficulty as to attain the Possession of Lands for one Man cannot Buy any Stock unless another will Sell nor unless the Buyers will give the Price demanded and experience hath discovered that it 's so seldom any Stock offers to be Sold that it can no way Answer the Objections made against the Present Company For those who have the greatest Stocks instead of Selling accumulate more and it is only some small Sums by chance escape their hands but if there were more to be Sold it would but exchange the Interest of A. B. for C. D. and no way be Subservient to the bringing in of more People or Stock into the Trade and it will be more agreeable to his Majesties Bounty and Goodness that his Subjects should enter into this Trade by a Door of his opening then by the Courtesie of the Present Adventurers and such a narrow disadvantageous way as they allow of which cannot extend to any Considerable number of People nor to those who most want his Majesties help the meanest because they have not Mony to Buy 100 l. Stock at the Rate it now goeth of 500 l. and less Sums are seldom or never Sold by which means if there were no other the Major part of the People are prevented from coming into this Trade Because this Company by sending over to the East Indies Dyers Throwsters Weavers and Instruments for the Setting up of Manufacturies there and by the Contraction which they have made of the Advantages of this Trade to so sew Persons and the inequality and danger which ariseth by carrying on this Trade by Mony taken up on a Common Seal at Interest and by the particular Interest which they carry on in their Private Trade owning of Ships they employ and other Sinister ways have Degenerated from their Primitive Nature and directed and managed His Majesties Charter to purposes different to His Gracious intendment and Royal Grant which was the Good of his People in general by Converting and Wresting the said Charter to be only Subservient to their particular Advantage and therefore ill deserve to be continued in the enjoyment of such extraordinary Gains so contrary to the Interest of the Nation in General Because the Members of this Company have enjoyed it so long as they have almost forgot the Donors Right and the Nature of their Tenure Pleading their Charter Prescriptions and Possession which cannot give them any Right but during His Majesties pleasure in opposition to His Majesties Royal Bounty and Goodness intended to be equally distributed amongst all his Loyal Subjects as he is a Common Father to them all Though His Majesty and former Kings his Royal Predecessors have Granted Charters for Incorporating of Trades to a set number of their Subjects named in them yet it was never intended to their private Use nor as an Inheritance to them but such Persons Names were only used as in trust for the Publick good that being the Royal end which His Majesty and the Kings Predecessors always designed And this is manifest by the Proviso His Majesty was pleased to make in this Charter That when this Charter either in Whole or in Part was not profitable to his Majesty or his Realm that then and from thenceforth after Three Years warning it should expire to all intents and purposes By the Example of former Ages it is apparent that other Companies have had their determination for publick Good as may be Instanced in many Companies that have managed the East-India and Guiney Trade and most of them after had lost great Estates in the Carrying on of the said Trade which if particular Interest must be Considered will be found much Severer than to have this East-India Company expire after 24 Years enjoyment and the Reaping of so great Advantages thereby Trade is to the Body Politick as Blood to the Body Natural if have it's Circulation apt to relieve the Wounded or most needy Part the meanest but if obstructed or otherways disordered in Motion may probably weaken one part and over nourish others If all the other Trades of this Nation should be Incorporated and thus contracted it is obvious that it would inrich only 160 Persons and not maintain as Adventurers above 2000 Persons in all And if such a Contraction would have a bad effect if all Trades were so managed so it must have some proportion in the Contraction which is apparent in this great Trade to the East-Indies especially if it be Considered what a numberless quantity of People there are in this Nation which have their dependance on Trade for their Livelihoods If this Trade be not intended for an Inheritance to these few Persons who are now in the Possession of all the Advantages and Profits of it the present Conjunction is opportune for the determination of this Company as well in reference to affairs abroad as at home Our Neighbouring Nations not being in a Condition to take advantage of the Transition and at home it will answer
is our Interest by Example as well as other means above all kind of Commodities to prevent the Importation as much as may be of Foreign Manufactures Page 203. VVhen we cannot preserve our Colonies by our Shipping or so awe our Neighbours by our Fleets and Ships of Men of VVar that they dare not attempt them our Case will be sad and our Propriety will be lost or in eminent danger not only Abroad but at Home likewise These Maxims about Trade in Joynt-Stocks have had great Confirmation from experience The first Charter for the East India Trade was Settled Anno 1600 for 15 Years afterwards Four more which did not prove in any respect useful to the Nation by increasing Trade whatever advantages some particular Persons might make by the management of such Stocks After some course of Years all broke to the Loss of the Adventurers in General and prejudice of the Trade for the Trade to Africa there have been also the like number of Charters with no better success And it may appear upon examination that when that Trade was open near double the quantity of our Goods were sent there more then when Carried on by a Company The Management of the late Corporations for the Linnen Manufactury Paper making Saltpetre and others may be given as Instances to prove that whatever Specious pretences may be made for Corporations whatever Advantages have been made by particular Persons by Stock-Jobbing or indirect ways that few or none have ever yet proved Advantageous to the Nation and if the Wayes and Means before mentioned by which the present East-India-Company have Increased Trade and made great Dividends be true no good Arguments can be drawn from thence for erecting Corporations in Trade exclusive to others And therefore if the Method proposed for Regulated Companies to Trade in such Goods as may be thought convenient to be received from India can be made practicable should be preferr'd before Joynt-Stocks being the most probable way to make that Trade advantageous it being possible that a Trade may be opened to China for the Expence of our Cloths where great quantities if Introduced would be Consumed and Gold is plenty or from Gambroon to Persia being the Carriage of our Goods that way is not so Chargeable as from Aleppo or to the Kingdom of Mindavo or other Countries or Places of which there are great numbers in those Parts to which we have not yet Traded or that we should then fall into a way of Imploying our Ships in those Parts by Trading from Port to Port The most likely way to make any clear Gains by that Trade and the Trade to Africa under such Regulations most likely to increase the Consumption of our Goods in those Parts The more hath been said about these Trades because it is high time some Settlement were made of them as may be most Advantageous for the Nation The Reasons upon which the Lord Chief-Justice Jefferies grounded his Judgment in the Case between the East-India-Company and Sands as to the validity of their Charter having been Printed and Published it is thought convenient to make Publick at the end of this Treatise the Argument of one of the Learned Council that Argued in the behalf of Sands upon that occasion But whether Trade be Settled in Joynt-Stocks Protection at Sea Regulated Companies or open no Nation can Thrive by Trade without Protection at Sea for though the Merchants after Losses may sometimes Sell their Goods that come in safety so dear as to make themselves a recompence for what Lost Yet that makes no recompence to the Nation for what they may so get by Selling Dear is gotten out of our own People but what lost remains with the Enemy or in the Sea and is so much lost to the Nation No great Trading Nation can be at War with another Nation but must undergo the disadvantage of a Confederacy against their Trade Hopes of making Gain by Privateering will draw all the Sea Vermin upon them from all Parts and therefore where Fleets and single Ships are many Protection must be difficult and yet so Essential that without it Trade will have a quite contrary effect to what designed for what is taken by Enemies will inrich them and impoverish our Selves but impossible to agree on any Scheme but what must be subject to many variations and changes Enemies may incresae their Strength and alter their Stations and the going and coming of Fleets and Ships uncertain and hard to be Regulated Storms may occasion separations and Winds and Weather a disappointment to any thing that can be designed to which remedies must be applied as such Emergencies may require but little hopes of a good effect unless our Men of War be so provided or ordered as that they may spend more time at Sea then in Port and a Breach could be made upon the Methods our Enemies have taken to Ingross Intelligence A constant Fleet of Men of War at the Chops of the Channel and Guard Ships to ply about our Chief Head-lands and enterance to our Chiefest Ports may force Privateers to look for their Prey further off at Sea where they are not so sure to meet it to which the Carrying on of Trade by Fleets and those Protected by good Convoys may be a further security Protraction of time for the departure of Convoys whether occasioned by Merchant-Ships or Convoys not being ready hath occasioned great Losses and should be prevented if possible Our Steights and Plantation Trades being remote will always require a particular care and great Strength to the diminishing of our Convoys for other Parts How to secure all is a matter of so great difficulty that it may be much easier to find Fault then provide effectual remedies though of all things the most desirable belonging to Trade and therefore Necessary to be considered by our greatest Councils Book of Rates The Book of Rates by which the Prizes of all Goods are Regulated at the Custom-House for the Payment of the Customs and Duties being of above 30 Years standing though some additional Duties have been since laid on some Commodities is a Burthen if not a Grievance because some Commodities are since the making of that Book so Risen and others so Fallen in Price that it Carries no equality As the perusal and new Settling of it might be a great ease to Trade without any diminution to the Kings Customs so by it much might be done towards the Regulation of Trade by increasing or diminishing the Duties and if some recompence could be found that the Impositions now Paid on our Manufactures and Products Exported might be taken off and none Paid for the future would occasion the increase of the Export and Consumption of them for though the Duty be not great yet being an addition to the first Cost and paid before Adventures born it is a great discouragement to Exportation and that addition to the cost is some hinderance to the Consumption abroad The Act of
Case 7 Rep. 17. where 't is said That Infidels are perpetui inimici there is perpetual Hostility there can be no Peace an Infidel can maintain no Action nor have any thing within this Realm and to prove this there is cited R. 282.12 H. 8.4 1. Supposing the Law to be as these Books intend and as the other side urge them and the Consequence will be that the Plaintiff can't maintain this Action but that the Charter granted to them is void The Reason that is given in Michelburn's Case is grounded upon this That the King hath the Care and Preservation of Religion by the Law vested in him That his Subjects shall not trade with Infidels lest thereby they may be brought to relinquish the Catholick Faith and adhere to Infidelism And that the King shall take care that Licences to trade be only given to such as the King hath Confidence in that they will not decline their Religion Supposing this then your Patent must be naught for then it is only grantable to Persons in whom such Confidence may be 1. Your Corporation or Body Politick is indefinite as to Persons the Members thereof are daily changeable some go out sell their Stocks or dye others buy their Stocks and are daily coming in to be Members of your Company I doubt you do not much examine nor care how fixed or certain those are in Religion that come into your Company How then can there be any Confidence in a Body Politick The Law saith that a Body Politick hath neither Soul nor Conscience What Confidence then concerning their Religion can there be in a Body Politick 2. 'T is not only the Members of the Company that were at the Time of the Corporation but those that after should be Members and their Sons their Apprentices Factors and Servants that are licensed by this Patent If licensing to trade with Infidels be a Trust and Prerogative in the King to be given to such Persons in whom the King can have Confidence that they will not be conversing with Infidels change or prejudice This can't be granted to a Body Politick and their Successors which may have Continuance for ever or to their Sons Factors Apprentices and Servants Persons altogether unknown not born nor in rerum natura when the Patent was made Suppose such a Licence to you to trade with Enemies I say 3. Supposing it to be in the King's Prerogative in Preservation of Religion to licence yet he can't grant this Prerogative to you that you shall have Power to grant Licence to whom you will Yet all this is done by your Patent for you have not only thereby Power granted you for your Apprentices Factors and Servants which are Persons that you your selves nominate and appoint at your Discretions and undoubtedly very religious But by your Patent it is expresly granted that the Company for any Consideration or Benefit to themselves may grant Licences to any Merchant Stranger or other to trade to or from the Indies And that the King will not without the Consent of the Company licence any other to trade Can this be a good Grant Can the King grant from himself his Kingly Care and Trust for Preservation of Religion to you that you shall manage it and that the King will not use such his Power without your Consent So that supposing that there is by the Law such a Trust reposed in the King for Preservation of Religion as you would have it yet the Grant to you is void in it self and then you have no more Right than we and consequently can maintain no Action against us 2. To consider the Books that you have cited to maintain this religious Point 1. Brownlow's Reports a Book printed in the late Times not licensed by any Judge or Person whatsoever The Roll is Michelburn against Bathurst Mich. 7 Jac. B. C. Rot. 3107. setting forth that the King had granted the Plaintiff his Commission to go with his Ship Tiger to the East-Indies to spoil and suppress the Infidels and to take from them what he could That there were Articles betwixt the Parties for Account and Shares of what should be got and upon those Articles a Suit in the Admiralty And what is it that is in the Case Nothing to the purpose but the Book mentions only what my Lord Coke said upon the Motion for the Prohibition Only a sudden occasional Saying not upon any Argument or Debate nor to the then Case So that a Man must be very willing that will much rely upon such a Saying I can't call it an Authority 2. For Calvin's Case That an Infidel is perpetuus Inimicus and can maintain no Action or have any thing and that we are in perpetual Hostility and no Peace can be made with them It is true that this is said in Calvin's Case but there was nothing there in Judgment that gave Occasion for it so that I can't think that it was much considered before it was spoken The Books there cited to prove it are Reg. 282. And all that I can find therein is that in a Writ of Protection granted to the Hospitallers of the Hospital of St. John's of Jerusalem it is said that the Hospital was founded in Defence of Holy Church against the Enemies of Christ and Christians But doth this prove that Infidels are perpetui Inimici with whom no Peace can be made that can maintain no Action The other Book cited is 12 H. 8.4 a Trespass brought for taking away a Dog and in the debating whether this Action did lye or not it is said That if the Lord beat his Villain an Husband his Wife or a Man outlawed or a Traitor or a Pagan they shall have no Action because they are not able to sue an Action So that this also is but Discourse and sudden Thoughts and Sayings where the thing was not in Question And what Authority is there in such Sayings It is true that Christian Religion and Pagaism are so contrary one to the other as impossible to be reconciled no more than Contradictions can be reconciled But because they can't be reconciled that therefore there should be perpetual War betwixt them and us perhaps is an irreligious Doctrine and destroys all Means of convincing Infidels to the Faith And besides these extrajudicial and occasional Sayings in these Books cited are of little Authority For I can't find any Book or Case much less Judgment or Authority for such Opinions in so great a Point as this is But on the other side if a Man considers the general Course and Practice Trade and Commerce and legal Proceedings a Man would think That my Lord Coke could not be in earnest in what he hath said about Infidels For let a Man consider what a great Part of the World we have Commerce with that are Infidels as Turks Persians the Inhabitants of Barbary and other Countries Spain and Portugal were also possessed by the Moors who were Infidels till about the Year 1474. about 200
sold them in England against the Will of the Company to their Prejudice and Impoverishment against the Form of the Letters Patents to the Damage of the Company 1000 l. 1. You have not alledged that he had no License from the King 2. You have not shewn any Loss or Damage that you have Did he buy so much Merchandize in the Indies as that he left not there sufficient for you to furnish your Ships withall so that they came home empty No such thing is alledged Or did he here export to sell so much Merchandize as not sufficient left for you to buy here No such thing alledged in your Declaration Or did he bring home here so much as that there were not Buyers sufficient for his Goods and your's also No such thing is alledged Or is the Truth so as that hereby your imposing your Prizes upon your own Commodities selling at your own Rates and exacting what you thought fit was hindred and for this you would maintain an Action It will be the first Time I think that a Man did ever recover Damages for being hindred of imposing and exacting his own Prizes or having the Advantage of his Monopoly A Commoner may bring an Action of the Case against a Stranger who puts in his Cattel into the Common provided that thereby the Common be impaired and the Commoner have not sufficient Common as before but have a Damage otherwise he can maintain no Action Resolved that for every feeding of the Beasts of a Stranger in a Common Co. 9 Rep. 113. the Commoner shall not have an Assize or Action upon the Case but the feeding ought to be such that thereby the Commoner cannot have Common of Pasture for his own Beasts 'T is the Consequence the Loss of his Common that gives him Cause of Action 'T is not alledged in the Declaration that your Trade was any thing the worse No Damage to you appears by it What Reason is there that you should recover Damages where you have not sustained any Loss And if you have alledged none in your Declaration how can your Declaration be good It then contains no Cause of Action The last Point in that Case is there resolved 11 Co. Rep. 88. b. Rols Abr. 1 part 106. that admitting the Patent good yet no Action would lye In that Case the Queen by her Letters Patents had granted to Mr. Darcey that he his Servants Factors and Deputies the whole Trade Traffick and Merchandize of Cards for 12 Years should have and use That none else should use the Trade nor buy or sell Cards That the Defendant did contrary to this Patent sell Cards 1. Adjudged that this was a Monopoly and the Patent void 2. That if the Patent had been good yet no Action would have lyen against the Defendant upon it 2. But for another Reason you can't maintain this Action It is grounded upon the Restraint and Prohibition of others to trade contained in the Letters Patents That Restraint or Prohibition is not an absolute Restraint or Prohibition but sub modo under a Pain of Forfeiture of Ship and Goods One half to the King another half to you that are the Company Now supposing all that you can desire That this Patent should have the Force and Vertue of an Act of Parliament yet such an Action as this could not be maintained upon it but you must sue for the Forfeiture For whensoever a new Law is made you must take that new Law as it is and it can't be extended Co. 7 Rep. 37. 11 Rep. 59. and Pl. Com. 206. All prove it Stat. E. 6. gives treble Damages for not setting out of Tithes Can the Party wave this Way and bring an Action of the Case Yet here the Damages are given to the Party The like of all other penal Statutes a Man must forfeit only the Penalty the Statute inflicts So that this Action cannot as I conceive be maintained So that to conclude 1. That which this Company claims in this Case by this Patent to have the sole Trade to the East-Indies in their Politick Capacity excluding all others is a Monopoly and ingrossing against the common Law the ancient Statutes the Statute of Monopolies 21 Jac. And therefore they have no Right to have what they claim 2. That what the Defendant hath in this Case done he hath lawfully done and therefore not to be punished 3. That though the Company had a lawful Claim to the Trade in such manner as in their Declaration set forth and the Defendant have done what he ought not yet they can't maintain this Action And upon the whole matter Whether best for the Company to have Judgment for them or against them may deserve their Thoughts And this being so great in the Conseqence as the whole Trade of the Kingdom depending upon it I have laboured the more The ancient Laws the ancient Ways is what I endeavour and against new Ways upon any Pretence whatsoever Some Books printed for B. Aylmer at the Three Pigeons in Cornhil THE Works of the Most Reverend Dr. John Tillotson late Lord Archbishop of Canterbury containing Fifty four Sermons and Discourses on Several Occasions together with the Rule of Faith Being all that were published by his Grace himself and now collected into one Volume To which is added an Alpabetical Table of the Principal Matters Price 20 s. Six Sermons viz. 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