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A46306 A journal of several remarkable passages, before the Honourable House of Commons, and the Right Honourable the Lords of Their Majesties Most Honourable Privy Council: relating to the East-India trade. England and Wales. Parliament.; England and Wales. Privy Council. 1693 (1693) Wing J1097AA; ESTC R212937 49,490 71

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Ports and Places within the Dominions of the King of Denmark and Great Duke of Muscovia and all Ports and Places in the Levant Seas whilst they or any of them should be in amity with His said Majesty His Heirs and Successours and unto all other Ports and places for the time being in amity with His said Majesty His Heirs and Successours whether the Merchants of the East-land Russia and Turkia Companies of London and Company of Merchant-Adventures of London or any of them did or might Trade and unto and from all other Ports and Places whatsoever beyond the Seas for the time being in amity with His said late Majesty His Heirs and Successours whether any of the Subjects for the time being of His said Majesty His Heirs or Successours did or might Trade in as full and ample manner as His late Majesty could Grant the same saving His Right to His Customs and Duties Yielding and Paying therefore to His Majesty His Heirs and Successours the Summ of Four Shillings to be paid to the Sheriff of Cornwal at All Saints And His said Majesty did thereby for Himself His Heirs and Successors Promise and Grant to the said Men and Inhabitants as well present as to come That if any Doubt or Question should happen to arise touching the validity of that Grant that then upon the Petition of the said Men and Inhabitants or upon Notice or Certificate of their Learned Counsel touching any Defect to be amended * * Here the Crown Covenants to make this a Grant valid in Law in case of any defect therein His said late Majesty His Heirs or Successours would Grant other Letters Patents unto the said Men and Inhabitants with such Amendments Explanations Amplifications and Additions for supplying the said Defects as by their Counsel should be advised and thought fit and which might tend to the Confirmation of that present Grant or to the Perfection of His Majesties Intentions any way appearing with several Non obstante 's amongst which one is Tho' the said Men and Inhabitants in Construction of Law be not reputed a Corporation or Body-Politick nor Capable in Law to have and hold the Priviledge thereby Granted The Petitioners produced a Printed Paper Dated at Sudeley-Castle the 10th of September 1643. which was previous to the Grant purporting His said late Majesties Declaration of His sense of the Extraordinary Merit of the County of Cornwal for the Defence of His Person and Rights of His Crown wherein are contained many Gracious Expressions of thanks and acknowledgments to that County The said Petitioners produced also another Paper alledged to be a Copy of a Letter or Order from King Charles the Second and to be Countersigned By Mr. Secretary Coventry and Superscribed To the Right Honourable John Earl of Bath the Lord Mohun Lord Arundel of Trerice and divers other Eminent and Considerable Gentlemen of that County dated the 17th of March 1673. reciting the former Grant of King Charles the First and Commanding all Governours of Islands Castles Forts c. Captains Officers Agents Factors Merchants and all other His Subjects not to hinder or molest the Inhabitants of Cornwal their Agents Factors or Servants in their Trade or Traffick nor to detain seize or prejudice their Ships Goods or Merchandize but in all respects to treat them as His Majesties loving Subjects ought to be they always producing the Copy of the said former Grant and of the Letter attested under any five of the Persons hands to whom that Letter was Subscribed Commanding That no other Person be permitted to Trade under pretence of that former Grant but such only as are thereby designed Provided That if any of the Companies or Corporation of Merchants should find themselves aggreived with or by reason of the said former Grant they may try the validity thereof in any of His Majesties Courts of England proper for the same The Petitioners Council insisted that this was a good License to all the Inhabitants of Cornwal then and in future times to Trade to the Places therein mentioned and that though the East-Indies be not therein named yet that the Inhabitants might Trade thither as to a Place in Amity with the Crown and desired that a Proviso might be added to the Charter preparing for the East-India Company for saving the Inhabitants Right to that Trade by Vertue of the said Grant of King Charles the First and that the said Charter may not prejudice the same The Councel for the East-India Company Objected against the validity of that Grant of King Charles the First as not making any Corporation nor Conferring any Right to Trade in the East-Indies that place not being named nor any League Truce or Amity being made out to be between the Crown of England and the Princes or Governours of the places within the East-Indies and Asserted that this Grant of King Charles the First was never put in Execution and that if it was and continues a good Grant in point of Law it cannot nor will be prejudiced by passing the Charter now under Consideration to the East-India Company In my Humble Opinion the Grant of King Charles the First is of an unusual Nature and by the Non obstante in it it seems as if it did not nor was not intended to make a Corporation and as this Case is I humbly conceive it did not make the Inhabitants of Cornwal a Corporation though there be a yearly Summ of Four Shillings reserved to the Crown and to have it operate as a personal Grant to each Inhabitant present and to come is not pretended to be good and by the general Words of it it seems to be an Invasion upon the Rights of the former Company therein mentioned which they held by Royal Charters preceeding to it and in Words confers a Liberty to Trade into Russia against an Act of Parliament that establishes that Trade to the Company Exclusive to all others This Grant was made when a former Charter was in being to an East-India Company which Charter was afterwards in the Reign of King Charles the Second renewed to that Company and for ought I can perceive there is no pretence of Exercise of the Liberty Conferred by that Grant since the making of it Vpon the whole matter I humbly conceive that Grant of King Charles the First to the Inhabitants of Cornwal * * Admittin● it were no● good yet 〈◊〉 Crown hat● covenanted to make it 〈◊〉 good Gran● by any sub●●quent Char●●● to supply 〈◊〉 defects of t●● former if ever it was good in Law cannot nor will be prejudiced by Passing the pretended Charter to the East-India Company which is rebutive only to what the late East-India Company lawfully Enjoyed the 24th of March last though there be no Proviso for saving the supposed Right of the Inhabitants as is desired All which nevertheless is most humbly submitted to Your Majesties Royal Wisdom and Pleasure Edw. Ward 28th Septemb. 1693. A Petition was then likewise Delivered by
Recompence for the Injury the loss of Life being irrecoverable The Petitioners therefore Humbly Offer it to Your Majesties Consideration How far it may consist with Your Majesties Justice or the Safety of Your People to trust the Respondents with such a dangerous Advantage over the Lives Liberties and Properties of their Fellow-Subjects by giving them a Grant of so mysterious Powers under the obscure denomination of such as may be Lawfully used especially when the same Persons have already believed all the Powers in their old Charters to be Lawful and have Executed them so Inhumanely as aforesaid Wherefore the Petitioners with all due submission to Your Majesty cannot but think themselves the more concerned to oppose the desired Charter in the very passing it for that after it is once passed the Petitioners some of whom have considerable Estates in the East-Indies and also all the rest of Your Majesties Subjects who being entituled to the Freedom of that Trade shall exercise the same have no way to avoid the Execution of the Dangerous Powers therein restored and contained or to secure their Lives Liberties and Estates in India against the Violences which by colour of such Powers may as formerly be there executed in as much as those Powers being generally such as are to be used in Places remote and out of the reach of the ordinary Justice of this Kingdom Your Majesties Subjects can neither be able to prevent or resist those Violences before they are committed nor to recover any Satisfaction or Redress for the same by any course of Law after they have been committed of which the Respondents have given the Nation already too many woful Experiments though the Powers in their former Charters were declared to be limited to such only as were not repugnant to the Laws of this Land and yet divers of them were notoriously illegal and owned to be so lately in Your Majesties Presence even by the Respondents own Councel As to the Respondents Answer concerning the Petitioners Request for a Protection for 400 Sea-men to go in Five Ships to the East-Indies Though the Respondents have insinuated as if the Petitioners design to invade and lessen Your Majesties Prerogative thereby The Petitioners in all Humility reply That the Respondents make a very forced and unnatural construction of that Your Petitioners humbly desire for no consequence can be thence inferred of prejudicing any Right Your Majesty hath by indulging them in that their Request And the Petitioners humbly conceive they cannot be said to diminish Your Majesties Prerogative by desiring only a Protection for Sea-Men for the exercise of their lawful Trade and Merchandize which tends to the promoting the publick advantage of the Kingdom in general and in particular the augmenting of Your Majesties Revenue The Petitioners therefore humbly offer it to Your Majesties consideration how far it may be thoughtfit in this place to determine so great and National a Property of which all the people of England are now in actual Possession by passing any Charter to the contrary whether it be put in execution or not especially so near the Session of a Parliament who have had this matter under their Debate for Two several Sessions's and in the last by the particular Command and Recommendation of the King Himself And therefore the Petitioners humbly Pray that the settlement of this Trade may be left to the Parliament to whom His Majesty hath already so expresly Referred it by his Message Or that the Right of the Subject to that Trade may be determined by a due Course of Law before any farther Proceedings And in the mean time that the Petitioners may have Your Majesties Gracious Protection for 400 Sea-men to Man Five Ships to the East-Indies this Season at whose Return the Customs payable to Your Majesty will not amount to less than 60000 l. that so they may not be interrupted in that Trade at this time when by reason of the War the Trade for most other parts is in a manner wholly Obstructed And Your Petitioners shall ever Pray c. An Abstract of some few of those Numerous Authorities of Common Law referred to in the preceding Reply THE Lord Chief Iustice Fortescue in the Reign of King Hen. 6. was a Man not only of great Learning but of remarkable Fidelity to the Crown and a Friend to the Lawful Prerogative and in his Book de Laudibus Legum Angliae cap. 36. he declares it Lawful for any man to Trade and Store himself with any Wares and Merchandizes at his own pleasure and that every Inhabitant of England by Law enjoyeth all the Fruits of his Land with all the Profits he gaineth by his own Labour by Sea or Land and is not to be hindred And in cap. 13. That the King is made and ordained for the Defence of the Law of His Subjects and of their Bodies and Goods and cannot Govern them by any other Law And Bracton lib. 3. fol. 123. says That which is anothers cannot be given away by the King And the Lord Cook 8. Rep. fol. 92. averrs That which is ours cannot be taken from us and transferred to another without our own act or defect And the Freedom of Trade being as necessary to a man as his Life the Law is so careful to preserve it to him that in many Cases the Law will not suffer him to be deprived of it neither by his own act or defect 1. As to his Act If a man give a Bond Not to Use his Trade tho' it be his own wilful act yet the Bond is Void and so is the Dyer's Case in Hen. 4. And if a man cannot Debarr himself of his Trade by his own act the King cannot certainly debarr him 2. As to his Defect If he make Default in paying his Rent c. the Tools of his Trade are by the Law protected from a Distress Which shews what care the Law took to prevent no more than a meer temporary Obstruction in a man's Trade and therefore how much more will it secure him against the total Deprivation of it And by Magna Charta cap. 14. An Amerciament must be so moderate as to be Salvo Contenemento and on a Merchant particularly Salvâ Merchandizâ Iudge Fitz-Herbert in his Natura Brevium fol. 85. declares By the Common Law every man may go out of the Realm to Merchandize or on Pilgrimage or for what other cause he pleaseth without the King's leave In the Lord Cook 's 3. Instit. fol. 181. Trade is declared to be Free for all and not to be converted to the profit of a few and that 't is unjust to permit some and prohibit others And in His 11. Report fol. 55. in the Taylor of Ipswich his Case and in Darcy and Allens Case fol. 86. it is expresly declared as the ground of the Resolution in both those Cases That by the Common Law no man can be Prohibited from his Trade And in the Report of the first of those Cases in 1.