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
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
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