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
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
Foreign Plantations and besides New-England and all other English Colonies have acted unwarrantably from the Beginning If the Powers in the Charter have not been duly pursued that will be the Fault of the Governor entrusted with the Execution of them but not of the Company unless it appear that they have given such Instructions which neither did nor could appear in their Case who were tried by the Governour at St. Helena It being immediately upon their Rebellion before there could come any Orders from hence concerning them The heaviest part of the Charge is that of a Commission for Martial Law which 't is supposed that the Company obtained that some of the Committee gave Instructions to have it put in Execution For this 't is requisite to give a short Account of the Inducements to that Commission The People of St. Helena having risen to a Competency on a suddain from the Grant of the Company had grown insolent with their good Fortune and impatient of any Government and four times rebell'd against the King's Auhtority administred by the Governours there meerly for Rebellions sake before they had any manner of Charge laid upon them for Maintenance of the Government being only required to defend it with their Bodies and such Arms as were given them by the Company for which end they were bound to keep Guard in their turns as well as to rise in general upon occasion They having taken a Distaste at the Deputy-Governor upon the false Suggestions of the most Seditious among them came down to the Fort in an hostile manner demanding the Deputy-Governor to be delivered up to their Fury and it being refus'd endeavour'd to force open the Gate Some would justify their Recourse to Arms because the Company finding more need of Defence against them than against Invaders had been obliged to send Souldiers for securing the Peace and discharging them from their ordinary Attendance had required the Payment of one Shilling per Acre for this necessary Support of the Government Whereas 1. There was no Stipulation with them that they should have any Vote or Interest in the making any Laws or Provisions about the Governments However 2. This which they would make a just occasion was not done till it was necessitated by this very Rebellion which thus they would ligitimate by way of Prophecy The Rebels for such they were against the King's Power administred there being dispersed by the Company 's Souldiers some of them were taken and tried and if the Witness produced against the Company swore true they were notwithstanding found guilty but of a Riot or Tumult Which shews how little Justice was to be expected when it was to be had by means of some of the Inhabitants However they being taken in actual Rebellion the Governour having by the King's Charter In Case of Rebellion Mutiny or Sedition as large and ample Power as any Captain General of the King's Army by Virtue of his Office hang'd some for Examples and detaining others in Prison sent a Narrative of the Fact signed by others of the Council there upon which Narrative the then King thought fit to issue out his Commission of Martial Law for Trial of the rest who were tried accordingly and some executed That this Trial by Martial Law is warranted by the Law of England will appear beyond Contradiction it being for a Fact committed beyond the Seas For 1 st At Common Law the Constable and Marshal have the sole Jurisdiction in criminal Causes arising from beyond the Seas as appears by the declaratory Stat. 13 R. 2. which says To the Constable it pertaineth to have Cognizance of Contracts touching Deeds of Arms and War out of England And indeed 't is evident by numerous Authorities that the Courts at Westminster could not take Cognizance of such Fact to mention but one as early as E. 2. 't is held without Contradiction that to a Fact done out of the Jurisdiction here or out of the Realm as at Paris or else where beyond Sea I ought not to answer The Constables Commission refers to the Practice in the time of W. 1. and since and shews that the Proceedings there have from the earliest times been in a summary way without regard to our forms of Law And it is held by Prisot 37 H. 6. and not denied that the Proceedings before the Constable and Marshal are to be by the Civil Law 2. This Power for exercising Martial Law is not taken away by any Statute The only Statutes which may be supposed to affect it are 26 H. 8. c. 13. and 35 H. 8. c. 2. both of them for Trial here of Treasons committed beyond the Seas and that part of the Petition of Right which concerns the Exercise of this Law Neither of which take away this Power for it being a Power at Common Law those Statutes of H. 8. which authorize Trials here by no means remove it as is held by the Lord Coke And that manifestly agreeable to the course of Authorities in the like kind there being no negative clause providing that such Trials shall not be had elsewhere or in other manner than what is there enacted That the Petition of Right does not touch this is as plain for The Petition is only against the assigning and appointing Commissioners with Power and Authority to proceed within the Land according to the Justice of Martial Law 2. It is not against proceeding for Fact arising out of the Land but such only for which Men were by Law punishable here by Magna Charta and other Statutes declaratory of the Common Law before the Statutes 26 and 35 H. 8. whereas Martial Law was within Magna Charta and those other Statutes part of the Law of the Land in Relation to Fact arising from beyond Sea And whereas the Petition says No Persons were exempted from Punishments to be inflicted according to the Laws and Statutes It shews that it speaks only in Relation to Fact arising here for otherwise they were exempted 3. But farther that the Petition of Right was never intended to touch the Constables or Marshals Common-Law-Jurisdiction appears from the Debates which induced the Petition I agree says the Learned Banks then Attorney General and afterwards Chief Justice of the Common-Pleas in some particular Cases the Martial hath Jurisdiction as in matters whereof the Common-Law can take no notice being done out of this Realm and also for the Treasons and Murders beyond Sea I need not labour to prove that the same Power which the Constable and Marshal or either of them had at the Common Law may be granted to several Commissioners The Substance of the Power not consisting in the Name or Number of Officers and I think no Man will question but the present Lords Commissioners for the Great Seal had before the late Statute concerning them all the Power which the Chancellor or Keeper had at the Common-Law Commissions for the executing Martial Law have been