not to be traversable The Statute which excepts notable Merchants from need of Licences to go beyond Sea 1. Gives no Power against a Prohibition Nor 2. Were any Merchants notable in the Eye of the Law but those of the Staple which at the beginning were only Foreigners as appears not only by Magna Charta which provides for no other Merchants but more particularly by the Statute of the Staple which prohibits English Irish and Welsh from carrying Staple Commodities out of the Realm This the King had dispensed with but our Merchants Denizens not thinking that sufficient Warrant obtained an Act 34 Ed. 3. to give them the same Liberty with Foreigners which was a manifest Departure from the ancient Policy of the Kingdom for bringing Foreign Merchants with their Monies hither Secondly The King might at Common Law erect Societies or Companies for the Maintenance Enlargement or ordering of any Trade of Merchandize and none to have Liberty to trade in such Commodities or to such Parts as are limited but those that are free of such Societies or licensed by them this appears in the Statute of Monopolies which excepts such Companies out of that Law and the East-India Company having Existence then is manifestly within the Exceptions This Power of erecting such Societies exclusive of others appears more antiently 12 H. 7. The Merchants Adventurers of several Parts of England petitioned the King in Parliament setting forth the Liberty they had to trade to many Places in League and Amity with the King but that the Merchants Adventurers of London exacted of them 40 l. Fine for Liberty to buy and sell at the Marts The Act gives them free Passage Resort Course and Recourse to the Marts in Flanders Holland Zealand Brabant and the Places adjoining thereto paying only ten Marks to the Company This gives no larger Liberty only lessens the Payment for it and but to such Places as are specified in the Act. The Case of the Taylors of Ipswich and others of the like Nature wherein Restraints of Trade by the By-Laws of Companies have been condemned come not within this For 1. They are of Inland Trade 2. In that case no Man was to exercise the Trade but such as the Master and others of the Company should approve of which might occasion a total Restraint Thirdly The King might erect Staples or Treasuries for Commodities of home-Growth or Manufacture and no Man could without the King's Licence engross Quantities of these to carry elsewhere than to Domestick or Foreign Staples Nor as appears by the foregoing Head could carry to the last unless he were a Merchant of the Staple or licensed by them Foreign Staples depended upon the King's Treaties with Foreign Princes and upon any Inconveniences arising either the King 's Grant of the Staple his Treaty with the Prince or the Prince's Ambassador residing here were to be consulted And the Statute 18 Ed. 3. shews that the King alone had granted a Staple at Bruges which Grant they do not in the least question but pray redress upon some Inconvenience which had arisen by an Ordinance made in Flanders Till the Staples came to be fix'd in Parliament the King of his own Authority appointed them within his own Dominions as is evident by the Statute of 2 E. 3. which says that the Staples ordained by Kings in times past shall cease at least as this is explained by subsequent Parliamentary Proceedings The Commons 47 E. 3. petition that the Staple may be at Calais and that no Patent or Grant be made to the contrary Res The King will appoint the Staple as by Counsel he shall think best Yet it appears that before the 50 th the King had of his own Authority appointed it at Calais for the Commons then in their Complaint against evil Counsellers desired it may be enquired of such of the King's Council as transported Staple-Ware and Bullion to other Places than Calais Nay though it seems it had been discontinued he had by Assent of his Council appointed it at Calais before the 47 th for in the 41 st reciting such his Establishment he gave special License to some to carry Goods elsewhere And the Statute of 25 E. 3. c. 2. takes special Care to preserve the Staple at Calais by a saving to that Act. In the 50 th of E. 3. The Countries of Lincoln c. pray that the Staple may be at Lincoln as it was at the first Ordinance and not at St. Botolph's 'T is answered it shall continue at Botolph's at the King's Pleasure The Resolution 1 Eliz. that a Grant for Malmsy to be imported only at South-hampton was void is not contrary to this Power of the King in confining Trade to a particular Place because it was by an express Act of Parliament made lawful to carry Wine to any Port And I am treating here only of a supposed Liberty at Common-Law and the Restraint of such Liberty If then the King can prohibit Trading to any Parts of the World but where he fixes his Staple unless the Trade be opened by Act of Parliament and yet may license some to trade elsewhere much more may he prohibit Trading in or to some one Place yet license others to trade there for a Prohibition of Trade to any Place but one or some few certainly argues a greater Power than to prohibit only in Relation to some particular Places Fourthly As the King might prohibit the carrying out Staple-Commodities elsewhere than to the Staple so he might when he saw cause prohibit even the carrying such thither Thus tho Wool was a Staple Commodity I find a Pardon for the Exportation of prohibited Merchandize of Wool upon Submission and Fine to the King But because this may possibly be for trading elsewhere than to the Staple this Power will not fully appear till we come to that Exception for the King's Prohibition which as I shall shew runs through those Statutes which are the most in Favour of Merchants yet it was admitted in the Argument of Sand's Case against the Company that in time of Plague or when the Commodities are needful here the King may prohibit the exporting even those of the Staple Fifthly The King might prohibit the Exportation or Importation of any Commodities not of the Staple as appears beyond Contradiction from the Petition of the Commons 1 H. 5. with the King's Answer to it The Commons pray that all Merchants may export to any place or import from any place any Goods except Goods of the Staple at their Pleasure notwithstanding any Proclamation to the contrary This is denied for the Answer is Le Roy voet estre advise This indeed some will have to be occasioned by an Embargo in time of War but it appears by the Circumstances of the time that there was none then or any immediate Preparation for one besides if there were Wars
AN APOLOGY FOR THE East-India Company With an Account of some large Prerogatives of the Crown of England anciently exercised and allowed of in our Law in Relation to foreign Trade and foreign Parts By W. A. Barrister at Law Author of the first Answer to the late chief Justice Herbert's Defence of the Dispensing Power Qui judicium fecerit parte inauditâ alterâ aequum licet statuerit haud aequus est Judex London Printed for the Author 1690. AN APOLOGY FOR THE East-India Company THE Substance of what follows was intended to be spoken by me before a Committee of the late House of Commons but my Ancients at the Bar thought it better to rely upon the supposed Defect of Proof for the Matters alledged against the East-India Company than to justify the Fact which if proved and not defended was likely to have that Consequence which is well known to have hapned I have here considered all the Objections which have occurred to me against the Exercise of such Powers as 't is not to be denied but the Company thought were warrantable I urge not this as if an Act of Parliament for setling convenient Powers were needless or not desired by them but to shew that those their Actions which have been most complained of have not been without Precedent and Countenance from Legal Authorities I. The two great Charges against the Company are the seizing of Ships and Goods of Interlopers and condemning them as forfeited II. The passing Sentence of Death and executing Men by the Governor at St. Helena in a Method not wholly agreeable to the Laws of England or else the procuring a Commission from the King for trying and executing Men there by Martial Law I. That in relation to Ships and Goods seems the less likely to be according to Law since it was not justified in the time when Jefferies was Chief-Justice and the King's Power even for prohibiting labours with the Disadvantage of having Judgment for it in irregular times and the Grounds on which most weight was laid suitable to such times As 1. A Prerogative to forbid Trade with Infidels who remaining perpetual Enemies to the Nation yet were to be Friends to part and this upon a Principle that would restrain the Propagation of the Gospel as well as of Trade as if the Danger of being infected with their Infidelity were greater than the hopes of converting them or that they who were free of such a Company had a particular Antidote against it 2. The other ground though not so ridiculous has less colour of Law which was the King's Power for the benefit of particular Persons to dispense with Acts of Parliament restraining Trade from whence they would infer an equal Power of restraining where Common or Statute Law gave a Liberty But without the help of such false Mediums I doubt not to prove very plainly that neither Common nor Statute Law give any Countenance for interloping within the Extent of the East-India Company 's Charter and that such as trade thither not being of the Company or licensed by them incur the Forfeiture of the Ships and Goods with which they interlope and that according to the Law of England as it has been taken ever since Foreign Trade appears to have fallen under its Regard That the Company 's Charter and Proclamations thereupon prohibit interloping upon such Penalties is not denied So that the only Question here is What Countenance such Prohibitions have in our Law Object I meet with an Objection in the beginning as if such a Restraint were against the Law of Nations of which some suppose it to be a Maxim that Commerce ought to be free which is not implied in the publick use of the Sea and Shores allowed in the Civil Law to some Purposes But were it so care must be taken for such an Interpretation that one Maxim do not thwart another Wherefore since according to the Law of Nations of those things to which all have equal Right special Property is acquir'd by Occupancy or primier Seizin The Rule for Liberty of Commerce must be qualified so as not to prejudice that Property which has been acquired and improved at the Expences of others According to which in our Law no Man can use his own to the Damage of his Neighbour's Property first setled Wherefore though we say cujus est Solum ejus est usque ad Coelum yet a Man may not by building upon his own ground stop up his Neighbours more ancient Light Nor yet can he use his own to the Injury of the Publick and therefore cannot turn his Land into a Park Chace or Warren without Licence from the King who is intrusted for the Publick to see that all or a convenient Quantity of the Land usually plowed be kept in Tillage But as to Commerce there is no ground for the Belief that it ought by the Law of Nations to be absolutely free either between Nation and Nation or for all the Subjects of the same Nation for this we must judg either according to natural Equity or the common Practice of Nations The first is certainly against reaping the Benefit of another's Cost or Labour and the Practice of Nations agrees with it imposing Taxes upon Goods imported or exported and prohibiting Persons and Merchandizes as they see cause And thus it was with the ancient Romans who had their Comites Commerciorum Supervisors of Commerce who were to see that none traded beyond the Bounds or with other Merchandizes than were allowed by the Government And what Freedom of Trade soever might be allowable where it depended only upon a Liberty granted by one Prince to the Subjects of another all standing in equal Capacity as Subjects yet where the Circumstances are such that the Trade must be maintained by Garisons and armed Forces sent by the Traders there can be no Reason for others to have any Liberty till they have allowed their Proportion of the Charges Nor can this be looked upon as a Monopoly odious in the Eye of the Law till it is proved to be a Restraint of such Trade as others were intitled to by Law But to come to those plain Authorities in Law which support the Companies Charters it will appear First That at Common Law the King might prohibit any Person or Persons from going beyond Sea and is Judg of the Grounds The Ne exeat Regnum is served only upon particular Persons but Fitz-Herbert tells us that the Subject may be prohibited by Proclamation as well as by Writ and the Reason given extends to all because every one is bound to defend the King and his Realm Wherefore this is rightly explained in Dyer where 't is said to be agreed by Fitz-Herbert That the King may by his General Proclamation or Special Prohibition restrain his Subjects from going beyond Sea There is indeed a Query put upon the Suggestion in the Writ which in Dyer is thought
E. 1. is a Precedent in Point to justify the last for no Man can doubt but Foreign Merchants had their Goods as much under the Protection of our Laws as Natives had or have But admit that the King could not by his Proclamation create a Forfeiture so to be adjudged in Westminster-Hall yet it being in Relation to Fact arising upon the High Sea or the Ports beyond the Seas falling within the Admiralty Jurisdiction and Marine Laws if the King may by Law prohibit then whatever Penalty the Marine Laws inflict upon Persons or Goods going contrary to Imperial or Regal Prohibitions the same are allowed of in our Laws Nor will it be any Objection to say that the Penalty is occasioned by the Prohibition in the Charter for it is not supposed that barely trading thither is against the Marine Laws unless such Trade were before prohibited As early as the time of Rich. 1. I find that omnes per mare ituri all Persons going by Sea were subject to the Admiral 's Jurisdiction And parts beyond the Seas are within the same The great Hales when he was of Counsel in a cause against the Admiralty did not except against such Power only that a Contract at New-England was not alledged to be in partibus transmarinis But this Jurisdiction is proved at large by Mr. Pryn in his Observations upon the 4th Institute The Kings Power at Sea is more absolute than at Land as appears by a memorable Record 31 E. 1. It was then agreed by the Lords and Commons and the Deputies of Foreign Princes that the King of England by Reason of his Kingdom of England has enjoyed the Supream Dominion and Empire in the English Sea and the Islands thereto belonging and may constitute whatever is necessary for the preserving Peace Justice and Equity as well among Foreign Nations as his own Subjects and may judg accordingly and do all things belonging to summum Imperium The Admiral 's Patents are to try secundum Legem Maritimam according to Maritime Law and Maritime Law or Law Merchants is by the Chancellor in E. 4th's time held to be the Law of Nature which is Vniversal throughout all the World Wherefore according to this the King has in these matters summum Imperium without the Fetters of positive Laws of particular Nations But as far as the Provisions reach the Law of Oleron made by R. 1. as he came from the Holy Land is the Law of Merâ—â—anâ—s throughout the World and the Law of Nations â—herein and I find Provisions made for Trials by the Law of Oleron and ancient Laws of the 〈◊〉 and 4 H. 4. Persons to be punished according to the Custom of the 5 Ports which had a Collection of some Sea Laws By the Law of Oleron Pyrates Robbers and Sea-Rovers may by despoiled of their Goods without Punishment If this will not reach Interlopers as Sea-Rovers at least the Civil Law which is another Guide to the Admiral 's Judgment will If says the learned Professor of the Civil Law Dr. Zouch things unlawful are put into a Ship the Ship is forfeited Again he tells us Traders are proceeded against in Judgment if they venture to go to buy or sell beyond places prescribed and the Goods brought from thence are to be forfeited and the Contracters to be subjected to perpetual Punishments And 't is evident that for this he has the Warrant of the express Letter of the Civil Law Thus we find in the Codex We now command as was formerly done that Liberty of buying Silk from Barbarians be taken from all Persons except the Supervisor of Commerce Again Merchants as well our Subjects as those of the King of Persia ought not to buy or sell out of those Places which were agreed to at the time of the League with the said Nation If this be done knowingly by either of the Contractors the things sold or gained elsewhere than in these Places are forfeited And besides the Loss of these things and of their Price which was paid in Money or Goods they are to undergo perpetual Banishment Again If any Persons are apprehended either going beyond the Cities mentioned in the ancient Laws or receiving Foreign Merchants without a Supervisor of Commerce they shall neither evade the Forfeiture of their Goods nor the Penalty of perpetual Banishment Upon all which Authorities I think it no strained Conclusion That if the King may prohibit Foreign Trade in any case and all must agree that he may in some for the Publick Good he may in such case prohibit it under the Penalty of Forfeiture of Ship and Goods especially if he direct that they shall be proceeded against by the Admiralty's Jurisdiction which is provided for by late Charters to the East-India Company I must not here pass by the Case of Horn and Jvy which seems to lye in my way There indeed the seizing a Ship as forfeited by Virtue of a Charter to the Canary Company is held unlawful But it is to be considered 1. That it was without Legal Process 2. The Justification of the seizing was without Warrant only by Commandment from the Company which could not be sufficient 3. The Statute 3 I. 1. had enabled the Subjects of England to trade freely into the Dominions of Spain And the Distinction took by the Judges then that the Canaries were of the Dominions of the King of Spain but not of Spain it self might be true yet it is not likely that the Parliament intended a nice Enquiry into the several Tenures or the Titles which the King of Spain had to all the Parts of his Dominions 4. But be this Authority never so express the Reporter assures us some held otherwise Nor could the unanimous Opinion of the Court of King's Bench be enough to turn the Stream of the greater Authorities which I have produced The Power over Life exercised under the King's Authority is of greater sound but not of any higher Nature than the foregoing For according to the Degrees of Power over Property so it must by Consequence be over Persons And it will be no harsh Supposal that if the King is not tied to the Rules of Common Law in Relation to Foreign Trade neither is he as to the Persons of such Traders But to come more particularly to the Facts which occasion this Question They are either Judgments of Death upon Trials had in Pursuance of the Powers given by the Charter to the Governors upon the Place and these Powers duly pursued or not or else the like Judgments upon Trials had by particular Commissions for Martial Law If the Powers of the Charter were duly pursued then the only Question will be whether the King may give a Power to judg upon the Place such as transgress the Laws either of England or by-Laws made for that Place If he cannot do this 't will be impossible to preserve any
or thing purchased Occupancy under the same with absolute Conquest because there were none to make Terms for themselves And if the Agreements between the Conqueror and the Conquered have the force of Laws by Parity of Reason where there is no Agreement as in Places gain'd by Occupancy or absolute Conquest the Prince's Pleasure sufficiently declared and made known will have the same force Though the Soveraignty of what Subjects gain by the Sword or Purchase accrues to the Prince it is not so clear that the Prince acquires for his Subjects for then that Acquistion which W. 1. made by his Victory over Harold would have rendred England an Accession to Normandy as our present Soveraign's Victory over J. 2. would have subjected England to the Low Countries If indeed an absolute Conquest leaving no Property to the Natives were carried on at the charge of a Nation or of any Body Politick or single Persons such would have a fair Pretence to a Legal Interest or share in the Soil though not in the Soveraignty But when the King gains a Soveraignty where the People in general have no Pretence of Interest in the Property it may be a question whether the Laws of Property here and for securing Liberty which follows that can be of any force there And whoever transplants himself without any Property must be presumed to submit to the Laws and Customs of that Place where he expects to gain one The only Question material here as giving Light to the rest is what according to our Law is the Effect of Conquest upon Terms That in such case the former Laws and Customs of the conquered Country remain if stipulated for appears from the Nature of the thing and is confirm'd by our Law of which Wales affords a plain Instance that anciently had been Feudatory to England and afterwards conquer'd by E. 1. that which is called the Statute of Snodon or Ruthland is manifestly no Act of an English Parliament but an Agreement between the King and them wherein he approv'd and allow'd of some of their old Laws and alter'd others by the Advice and Consent of his Peers that were with him at Snodon which being in Wales 't is not likely that an English Parliament should be summon'd thither nor are any Footsteps of one to be found Nay though Wales was afterwards by Act of Parliament incorporated and annex'd to the Realm of England and it was provided that they should enjoy all Rights Laws and Liberties as the Subjects of this Realm notwithstanding any Act Statute or Usage to the contrary Yet it has been held from the Title of the Act That many Welsh Customs remain the English Form of ministring Laws and Justice being observed But there was no Question but till the making that Act all the Welsh Laws and Customs allowed at Ruthland were in full Force And this tho Wales had been conquered at the Expence of the English Nation which cannot be said of any part of the Indies and is by the Statute of Ruthland declared to be united to the Crown of England as a part of the same Body And whatever English-man went to inhabit in Wales before the Act of Union particularly introducing the English Laws though he were within the King's Dominions yet was he subject to the Laws and Customs of Wales Nay farther yet W. 1. gave Power to several of his great Lords to conquer what they could from the Welsh Nation Of which to use the Words of the learned Judg Doderidge The said Lordships and Lands so conquer'd were ordain'd Baronies-Marchers and had a kind of Palatine Jurisdiction erected in every one of them and Power to administer Justice unto their Tenants in every of their Territories having therein Courts with divers Priviledges Franchises and Immunities So that the Writs of ordinary Justice out of the King's Courts were for the most part not currant among them Nevertheless if the whole Barony had come in Question or that the Strife had been between two Barons-Marchers touching their Territories or Confines thereof for want of a Superior they had Recourse unto the King their supream Lord. And in these and such like Cases where their own Jurisdiction failed Justice was administred to them in the superior Courts of this Realm I find a memorable Record of this matter 9. E. 1. before the King in Council Gilbert of Clare Earl of Glocester who claim'd to hold his Lands in Glamorgan sicut regale quidvis as any thing Royal or any Royalty by Order of the King was required to answer a Suit or Complaint against him But he pleads that he holds those Lands of his own and his Ancestors Conquest by reason of which he conceiv'd that he ought not to answer any one for any matter from thence without the Judgment of his Peers of England and of the Marches of Wales who use the same Liberties in their Welsh Lands And I find it rested here In the 20 th of the same King in the great Case between the Earls of Glocester and Hereford A Jury of Peers and others being summon'd the Peers not only refuse to be sworn as being against their Priviledg but say No like Royal Mandat ever came into those parts for Causes concerning the Marches to be tried otherwise than according to the Vsages and Customs of those parts Thus it appears that not only the King 's but the Subjects Conquests enjoyed their peculiar Laws and Customs As I know not that I ever opposed any Royal Prerogative warranted by Antiquity or immediate Necessity neither do I that I have here advanced any not so warranted But if both Common and Statute Law yield such Countenance as I have shewn for the King 's prohibiting to trade to particular Places all but such as he thinks fit upon the Penalty of forfeiting Ship and Goods and that this Forfeiture may be taken at least under the Admiralty-Jurisdiction granted to the Company If Martial Law in Relation to Fact arising beyond the Seas may be exercised according to the Rules of the Civil Law and it appears not that the Company have gone beyond those Rules If yet farther the Rights and Priviledges of English-men may receive Alteration according to the Place to which they come though within the King's Dominions then to punish any Member of the Company for procuring or acting under such Powers as have been complained of may seem very hard APPENDIX A Commission for Martial Law granted to a Governor chosen by the East-India Company 43 Eliz. ELIZABETH by the Grace of God Queen of England France and Ireland Defender of the Faith c. To our Trusty and well beloved James Lancaster Esq greeting Whereas divers of our loving Subjects have been humble Petitioners unto us for our Royal Assent to be granted unto them that they at their own Adventures Costs and Charges as well for the Honour of this our Realm of England as for the Increase and Advancement of Trade of