Selected quad for the lemma: cause_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
cause_n	according_a	judge_n	law_n	2,498	5	5.0932	4	true

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A46717	The Argument of the Lord Chief Justice of the Court of King's Bench concerning the great case of monopolies, between the East-India Company, plantiff, and Thomas Sandys, defendant wherein their patent for trading to the East-Indies, exclusive of all others, is adjudged good.	Jeffreys, George Jeffreys, Baron, 1644 or 5-1689.; Sandys, Thomas.; England and Wales. Court of King's Bench.; East India Company.	1689 (1689)	Wing J526; ESTC R17792	37,073	36

has over other Mechanick Crafts and Mysteries and that as Mr. Attorney did well observe to prevent Frauds Deceits and other abuses either in Weight Measures or otherwise which would certainly interrupt such Commerce but our Law goes yet a Step further and allows further difference between Inland Merchandize and Forein and allows a different way of determining Controversies that arise thereupon the Common Law and Statutes of this Realm allowing the Law-Merchant which is part of the Law of Nations should decide such Controversies to Decimo tertio H. 4. fol. 19. a Complaint made to the King and Council of some goods taken away from a Merchant it was moved in that Case that the matter might be determined at the Common Law but the Lord Chancellour said that the Suit being brought by a Merchant who is not bound to sue according to the Common Law to have his Cause tried by twelve Men and to observe the other Solemnities of our Law but shall sue in Chancery according to the Law of Nature which is the Universal Law of the World. And it is in that Case agreed by all the Judges that if Forein Merchandize were stoln or waived they could not be seized as other England Merchandizes might be by the Rules of the Common Law as Waifs and Strays which shews plainly there is a difference in the consideration of our Law between forein Merchandizes that cross the Seas and other Inland Goods and Commodities If two Merchants be Partners in Merchandizes one shall have an Action of Accompt against the other secundum Legem Mercatoriam says the Register fol. 135. and F. N. B. 117. D. and yet by the Rule of the Common Law if two Men be jointly possessed of other Goods which are no Merchandize the one cannot bring an Action of Accompt against the other if one of the Merchants dies the Executor may bring his Accompt against the Surviver for his moiety Reg. 135. F. N. B. 117. but if it were a Copartnership for other Goods it would survive per Jus accrescendi according to the Rules of the Common-Law In an Action of Debt upon a Simple Contract the Defendant may wage his Law but it is otherwise in a Contract about Merchandize in Lanes's Reports Bates's Case agreed Reg. 260. A. At Common Law the Goods of Ecclesiastical Persons were excused from Toll but says the Writ dum tamen Merchandizas aliquas non exercitat de iisdem it shews that then they fall under another consideration if one Man wrongs another Man of his goods here an Action of Trespass will lie but if a Merchants goods be taken upon or beyond the Seas there must be a Writ of Reprizal to obtain Satisfaction the Parliament Roll 3 Ed. 1. M. 19. in Archivis Turris Londini where the Bayliffs of Southampton are commanded by Writ quod omnes Mercatores Leodienses ad partes Angliae accidentes per bona Catalla sua distringantur secundum Legem Mercatoriam Consuetudinem regni ad satisfaciendum Mercatoribus Florentinis c. Where by the way observe that Lex Mercatoria which differs from the ordinary Common Law is said to be Consuetudo regni Angliae by which we may observe that Forein Merchandizes and Traders differ from others in the Eye of Law even by the allowance of the Common Law it self Several Acts of Parliament have been also made for the more speedy Recovery of Debts contracted for Merchandizes as the Statute of Action Burnel the Statute de Mercatoribus and the Statute Vicesimo Septimo Ed. 3. Cap. 2. Amongst other things it is enacted That for Merchandizes taken away the Party shall be arrested and speedy and ready Process shall be against him from day to day and from hour to hour according to the Law-Merchant and not at the Common Law. So the Statute for erecting the Court of Ensurance designed for the speedy ease of Merchants has left the determination according to the Law of Merchants and therefore hath ordered the Judg of the Admiralty's Court always to preside in those Commissions by all which I think I may fairly conclude there is a great difference allowed of between the Inland and Forein Commerce and that II. I shall endeavour to prove that the Liberty of Forein Trade may be restrained And here I must premise that as at first all Things were promiscuously common and undivided to all so the free Exercise of this Universal Right was then instead of Property but as soon as the number of men increased and they found by experience the inconveniency of holding all things in common things were reduced into Property by agreement and Compact either Express as by Partition or implied by Primier Occupancy After this Government was established and Laws were made even for the ordering those things to which no man had any Right As for Example Deserts Places uninhabited Islands in the Seas Wild Beasts Fishes and Birds the former were usually gained and disposed of by him that had the Sovereignty over the People the latter by him that had the Dominion over the Lands and Waters who might forbid all others from Hunting Fishing c. And in Vertue of this Universal Law his Majesty and his Predecessors have always disposed of the several Plantations abroad that have been discovered or gained by any of their Subjects and may do for the future in case any other be discovered and acquired For tho the Laws of Nations can command nothing which the Law of Nature forbids yet they may bound and circumscribe that which the Law of Nature leaves free and forbid that which naturally may be lawful Now to apply this to our present purpose of Trade and Commerce Mr. Williams quoted that common saying Commercia debent esse libera from whence he infers that by the Law of Nature and Nations the Sea and Trade and Traffick ought to be free as the Air and for that he has cited Grotius de Jure Belli ac Pacis Cap. 3. Wellwoods Abridgment of Sea-Laws in his Epistle to the Lord Admiral Grotius de Mari libero where he says Mare Littora Maris Jure Gentium sunt communia Britton Cap. 33. De perchase le mere le air sunt thores Common Sir John Burrough his Sovereignty of the Seas Baldus de rerum Dominiis But I think none of those Books can warrant his conclusion for surely that Expression Commercia sunt libera cannot possibly be understood in such a literal sense that every man in every Nation should be at liberty to trade either in what Commodities or to what place or at what time soever he shall think fit for I took it to be granted by all that argued for the Defendants that Trade and Commerce must be subject to some Laws and Grotius in his Book de Mari libero proposes this main design to prove that any one Nation had not power to hinder another Nation from free Commerce and that the Spaniards therefore had no right to prohibit the

the rest of his Majesties Subjects will be deterred from the like disobedience There were some other superfluous Objections made against the Clauses in the Charter and against the Formality of the Pleadings which I think not necessary to remember and therefore having thus premised I shall now descend to those Points I think only material in this Cause I. The first and great Point in this Cause is Whether this Grant of the sole Trade to the Indies to the East-India Company exclusive of all others be a good Grant in Law or not and I am of opinion it is and by the way I cannot but make the same remark in this Case as my Lord Chief Baron Flemming made in the great Case of Bates in the Exchequer Lane fol. 27. that it is a great Grace and Eminent Act of condescension in the King to this Defendant that he does permit this great Point of his Prerogative to be disputed in Westminster-Hall but by this he does sufficiently signifie to all his Subjects that he will persist in nothing though it seem never so much for his advantage but according to the Laws of the Land. I shall therefore endeavour to make it appear that he is invested with this Prerogative by the Law of this Nation But by the Law I do not only mean the customary Common Law or Statutes of this Realm which are Native and peculiar to this Nation which as Mr. Attorney well observed are not adapted to this purpose But such other Laws also as be common to other Nations as well as ours and have been received and used time out of mind by the King and people of England in divers Cases and by such antient Usage are become the Laws of England in those Cases namely the General Law of Nations the Law-Merchant the Imperial or Civil Law every of which Laws so far forth as the same have been received and used in England time out of mind may be properly said to be the Laws of England And for the better communicating my Thoughts upon this Subject I will proceed by these Steps 1. I will very briefly consider of the Inland Trade within this Kingdom and the Forein Trade with other Nations and therein observe that the King's Prerogative is concerned in both and that there is a great difference between both allowed by the Municipal Laws of this Kingdom 2. I shall shew that the Liberty of Forein Trade may be restrained 3. That Forein Trade and Commerce being introduced by the Law of Nations ought to be governed and judged according to those Laws 4. That by the Laws of Nations the Regulation and restraint of Trade and Commerce is reckoned Inter Juris Regalia i. e. the Prerogative of the Supream Magistrate 5. That though by the Laws of this Land and by the Laws of all other Nations Monopolies are prohibited yet Societies to trade such as the Plaintiffs to certain places exclusive of others are no Monopolies by the Laws of this Land but are allowed to be erected both here and in other Countreys and are strengthened by the usage and practice of both in all times 6. I shall shew the Authorities that are extant in our Books together with such Presidents Reasons both publick and politick for as my Lord Fleming says that such Reasons are good directions for our judgments in such Cases as these being demonstrations of the course of Antiquity and therein also observe the necessity and advantage of such Societies and by the way endeavour to answer the several Acts of Parliaments Presidents and Authorities with all other the objections that have been made against my Conclusion 1. First then to consider the difference between the Inland and the Forein Trade allowed of in our Books and that the King's Prerogative doth affect both As to Manufactures under which all sorts of Artificers are concerned I think they remain with the most Liberty by the Common Law and as Mr. Attourney observed the Publick-weal is little concerned therein only to preserve every one in the quiet enjoyment of the fruits of his own labour and industry yet even in that the King's Prerogative hath not been totally excluded for as it is taken notice of in our Books that all things that are this day enjoyed by Custome or Prescription had their Commencement by Royal Grant and by that means no Artificer within the City of London can at this day use two Trades i. e a Carpenter cannot use the Trade of a Joyner or a Bricklayer of a Plaisterer 2. As to the Trade of Merchandize or Inland Commerce generally speaking it had the next Freedom by the Common Law but was subject nevertheless to be limited or restrained by the King's Prerogative in several particulars As for instance to prevent all forestalling and ingrossing So Mr. Attorney did well observe that numbers of people could not meet to traffick or Merchandize without being in danger of being punished as unlawful Assemblies the Crown therefore granted the liberties of Fairs and Markets for the sake of Commerce and Trade all which did originally proceed from the Crown and therefore by abusing those liberties may still be forfeited to the Crown and passing by all other instances I shall only instance one taken notice of in our Books which well considered may go a great way in the Case at the Bar Register fol. 107. The King grants to the Abbot of Westminster and his Successours that they should hold a Fair at Westminster thirty odd days together with a prohibition that no Man should buy or fell within seven Miles of that Fair during that time and the King does there command the Sheriffs of London by his Writ to seize the body of an Inhabitant of Salisbury for selling Cloaths in London within the time of the Fair Now here is a Charter granted to a particular Person exclusive of others for a time subject to more Objections than the Charter now in Question yet approved of by our Books Hence it came that Corporations were erected and Trade confined to Places and Persons exclusive of others for all such came originally from the Crown and as I said before in the Case of Fai●s so I may now say in the Case of Corporations that though they claim Liberties and Privileges by prescription yet these originally proceeded from the Crown and are therefore forfeitable to the Crown an Eminent instance hereof is that great Case of the City of London for abusing their Liberties which they claimed by prescription confirmed by divers Charters and Acts of Parliament by Judgment of this Court their Liberties and Franchises were seized into the King's Hands and therefore remain as a Vill to all intents and purposes till his Majesty shall be pleased of his Bounty to restore them Now that the Inland Traffick is most concerned either in Corporations Markets or Fairs which all proceeds from the Crown does plainly evince that the King's Prerogative has a more immediate influence over Dealings in Merchandizes than it

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

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