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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

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

the Bar. For the Writ in Fitz. N. B. 85. and the Register import no such thing and our Books say the Surmises mentioned in those Writs are not traversable so is Dyer 165. 296. for surely the King may restrain his Subjects from going beyond Sea and is not bound to give any reason for his so doing but that is not now in Question II. In the next place I do not conceive there is any difference tho much discourse hath been about Indians and Infidels whether the East-Indies were at the time of the Grant of this Patent inhabited by Christians or Infidels tho by the way in the debating of this Case I shall shew perhaps that matter may in some measure affect the Defendant but will not at all affect the Grant to the Plaintiffs So that I conceive that whether this Country or Place or any other be inhabited by Christians or Infidels that is not otherwise provided for by Act of Parliament will make but the same Question III. Whether every Clause and Article in these Letters Patents viz. Touching forfeiture of Ship and Goods Imprisonments or divers other clauses contained in the Charter be legal or not is not now in question For surely it would be hard to maintain them all and therefore the Plaintiffs Councel have avoided those Questions by bringing this Action and tho the Defendants Councel have mentioned them yet surely it was onely intended to fully the Cause and not that they thought them to affect the Question IV. Nor is it the Question Whether by this Grant to the Plaintiffs the King has fettered or confined his Prerogative by putting in a Covenant to exclude himself from granting Licences to others of his Subjects to trade within the limits of the Plaintiffs Charter tho Mr. William's always a friend to the Kings Prerogative in tenderness and care thereof seemed to be surprised by the inconsiderate extravagancy of the Grant and would have us believe that he was afflicted with the dismal Consequences that must necessarily ensue by the King 's parting with so great a Prerogative and that either by the advice consent or the inadvertency of his Attorney General and the rest of his Councel by having a greater regard to the East India Company for the sake of their Money than they had to the King in discharge of their duty To acquit them and us therefore of that Dilemma I am of opinion though it makes nothing to the question that is now before us The King may grant Licences to any of his Subjects to trade to the Indies notwithstanding the Charter or any Article Clause or Condition therein contained to the contrary and notwithstanding any Caution or advertisement that in his argument he gave to the King or his reflection that he made upon his Councel either for their ignorance or hasly inadvertency in the passing of that Grant and I am the rather induced to be of that persuasion for that the most learned of our Profession whose Opinions have been quoted by him and others that have argued on the Defendants side were then of the Kings Councel and were privy to and advised both these Letters Patents and all others of the like nature that have been granted for these hundred years last past I therefore think fit to say that I believe Mr. Attorney General and the rest of the King's Councel have discharged their Duty as well to the King by maintaining of this Grant as Mr. Williams has in this instance manifested his Loyalty by endeavouring to destroy it In short therefore as I said before every Clause in this Charter is not to be maintained and therefore is not to affect the Question now to be determined V. Whereas it has been objected that tho upon the Pleadings it is agreed that the Defendant never was a Member of the East-India Company nor had any Licence from them to trade to the Indies yet he might have a Licence from the King which as I conceive the King is not debarred to grant by any Clause in the Letters Patents yet I am of opinion that if the Defendant had any such License it ought to have been shewn on his part which not being done it ought to be taken by us as I believe the truth of the Fact is the Defendant never had any such Licence VI. It was observed that the Plaintiffs in their Declaration had alledged that this Trade could not be managed but per hujusmodi Corpus Corporatum and by this means they had excluded the King from Constituting any more Companies to trade within their Limits tho perhaps the advantage of this Kingdom might hereafter require it Nay tho the Indians might desire a further Treaty of Commerce or that the Trade of these places might require more Companies to be erected yet say they this Grant hath made the Plaintiffs a mere Republick and thereby has altered the Constitution of England in the management of Trade by Common-wealths by placing it in Companies who were they Independant upon the Crown are truly so called Yet in as much as I did before observe that the King is not by this Grant either excluded from making any new Treaties with the Indians or from making any Corporations or granting any other Licences to any of the rest of his Subjects notwithstanding any of the Clauses in the Charter So I am of opinion that that Objection also does not affect the Question now to be determined and for that reason amongst others I thought it not improper to mention that Clause in the Charter that was omitted at the Bar which the King has annexed as a Condition to his Grant that if it should hereafter appear to his Majesty or his Successors that that Grant or the continuance thereof in the whole or in any part should not be profitable to his Majesty his Heirs and his Successors or to this Realm that after three years warning by War under the Kings Seal or Sign Manual should be made utterly void So that it appearing that the King hath neither divested himself of the power nor at the time of the Grant did design to be prevented to shew his inclination for the promoting of the advantage of his Kingdom has given himself scope enough to obviate all those Emergencies Yet by the way I cannot but observe that Mr. Williams to shew his dislike to a Commonwealth declared it to be absolutely opposite to the interest of a Single Person but the Single Person he concerned himself for was not the King and his Prerogative but his Client the Defendant and his Trade who tho I cannot in propriety of Speech call a Commonwealth yet I cannot but think this opposition of his seems to proceed from a Republican Principle for he by his Interloping has been the first Subject that within this Kingdom for near an hundred years last past hath in Westminster-Hall publickly opposed himself against the King's undoubted Prerogative in the Grant now before us and I hope by this Example

thereunto I premise onely this that in all those Countreys where Societies of Trade are erected by the Supreme Power exclusive of all others as the Case at the Bar Monopolies are forbidden and are as severely punished by their Laws as they can be by the Common and Statute-Laws of England viz. in Holland Germany France Spain c. And so where ever the Civil Law prevails Monopolies are punished with Confiscation of Goods and Banishment C. de Monopoliis Cens. Forens part 1. fol. 497. Now though Monopolies are forbidden yet that cannot be understood to be so universally true as no general Law can ever be that it should in no respect and upon no occasion or emergency whatsoever admit of any Exception or Limitation The Exceptions thereof may be such as these I. Though no private Persons can have the sole Trade to themselves by their own private authority yet this may be granted to a publick Society by the Prerogative of the Prince if II. It be upon good cause and for the publick advantage of the Kingdom III. From the necessity of beginning and carrying on such Trades and Forein Commerce which can be onely done by Companies and Societies IV. Such Companies and Societies ought to be continued and supported upon the Natural Equity and Justice that no other Persons should be permitted either to reap the profit or to endanger the loss of what hath been begun and been carried on by them with great hazard and expence Now in as much as Forein Trade can never be of advantage to this Kingdom except the ballance be kept equal between this and other Countreys which can never be done but by keeping up to proportionable Rules for the regulation thereof with the other Countreys and because as I said before the Municipal Laws of this Realm seem too scanty for that purpose I will therefore first consider how this Question stands as to the Law of Nations and then how it is considered by our Law producing Authorities in both to make good my Assertion and because I thought the former more natural and effectual for the decision of this Question made me more inquisitive than otherwise I should have been Cujacius lib. 16. obser 23. distinguishes inter monopolia licita illicita Licitum Monopolium says he est si certis personis vel quod potius est certo Collegio concesserit Princeps ut ei soli Jus sit vendendi certae mercis and therefore recites a Law of the Emperours Theodosius and Valentinian by which certain Governours of Commerce were appointed Edictali Lege sancita ut nulli mercatori nisi ad designata Loca temporibus praestitutis ad negotiationis suae species distrahendas passim liceret accedere c. Carpzovires in his Decisions before mentioned lib. 2. Decis 105. N. 13 14. makes this no new Case Et certe non est novum modum Commerciis quae tamen liberrima esse debent poni ex causa nimirum publicae utilitatis vel Necessitatis ex quo monopolia alias prohibita jure subsistunt And again exempla haud rara sunt ubi Necessitat edicto principis monopolia quandoque probari Commercia ad certas personas loca restringi videmus Idem Decis 4. N. 10. N. 13. Nimirum exercitium ac permissio monopoliorum à principis arbitrio dependet c. Scacca de Commerci●s Q. 7. fol. 301. N. 15. Hoc non procedit in monopolio autoritate principis sive Reipub. contracto Quia sicut monopolia privatâ autoritate contracta Reipub. sunt perniciosa Ita haec quae legis autoritate ex justa contrahuntur causa Reipub. valde utilia sunt Grotius de J. B. P. lib. 2. cap. 12. sect 16. Monopolia non omnia cum jure naturae pugnant Nam possunt interdum à summa potestate permitti justa de causa pretio He gives amongst others these two Examples I. From the History of Joseph when he was Vice-roy in Egypt Which is says he an illustrious instance of this matter II. That under the Romans the Alexandrians had the sole Trade for all Indian and Ethiopick Commodities So Thuanus lib. 32. gives an instance of a Grant from the French King An 1604. for the sole Trade into Canada or new France for which he gives this reason Ne gravis esset aerario ad sublevandos Navigationis illinc institutae sumptus Which I conceive will go a great way in supporting all such Trading Companies as cannot be begun but by a publick Expence C. de monopoliis the Prohibition is expresly limited Nisi Privilegium vel alia Consuetudo in utilitatem publicam vergens resistat Mercatura est res indifferens in qua magistratus vel in vetando vel permittendo suam pro Commodo Reipub. potest interponere Autoritatem Salmas de foen Trapezit fol. 236. Hoc solum permissum est Regi ut possit prohibere ne aliis vendat salem Alciat in Q. inter publica 17. in Fin. F. de verb. Sign As it is at this day practised in France Thuan. lib. 5. Sic in sale vendensi monopolia etiam hodie in Italiâ licite exerceri è Superiorum permissione Scaccha de mercat part 4. N. 30. Sic in Reipub. Lubecensi certis quibusdam mercatoribus ob praedictas rationes Jus coquendi Sacchari salis speciali Privilegio concessum est Marguard lib. 4. c. 7. N. 29. And then as to the Usage Haec est communissima omnium nullo prorsus reluctante Doctorum sententia quod jura hujusmodi Emporalia Regalia possunt acquiri non modo per concessionem summi principis sed etiam Consuetudine Praescriptione Lessius de Justitia lib. 2. c. 22. Dub. 21. By the Imperial Laws Commerce and Traffick have received several other limitations sometimes the Subjects of the Empire have been forbidden to trade to certain places particularly named And in general by other Constitutions forbidden to export Coin Gold or Arms to any of the barbarous Nations And that the Law or Custom of Nations is so the practice does evince And first in Germany where the Law prohibiteth all Monopolies yet see how the Law there stands in respect of our Case Circa Monopolia autem quae exercentur adversus Cives observandum non esse illicitum si non cuivis quodvis negotiationis genus exercere conceditur sed illis duntaxat qui ad idem exercendum juxta instituta Civitatis sibi Jus quaesiverunt quemadmodum in rebuspub Europaeis tecta quaedam praestitisse oportet eum qui mercatorium aut opificium aliquod t●ll●re vult This as to Corporations As to Trading Societies thus Sed fieri potest ut à summa potestate Societati mercatorum indulgeatur certum genus Mercium ex certis locis advehere exclusis reliquis cujus privilegii concedendi variae possunt esse Causae I. Nam Commercia quae ad loca remotissima instituerentur priusquam rite stabiliantur magnos requirunt

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