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Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
cause_n	king_n	law_n	prerogative_n	1,605	5	10.3114	5	false

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

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

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 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