Act of Parliament is probably a Declaration of the common Law Stat. 2 E. 3 c. That all Merchants Strangers and Privy may go and come with their Merchandizes into England according to the Form of the Grand Charter Stat. 9 E. 3 c. 1. That all Merchants Strangers and Denizens and all other and every of them of what Estate soever they be shall sell their Merchandizes from whencesoever they come freely without Interruption Except the King's Enemies And that this Act shall be observed and performed notwithstanding any Charters to the contrary And that Charters to the contrary are of no force but are to the King's Damage and to the Oppression of the Commons But your Charter gives you the sole Merchandizing to and from the East-Indies Stat. 14 E. 3. c. 2. Recites Magnae Charta and enacts That all Merchants Aliens and Denizens may without Let safely come with their Merchandizes safely carry and safely return Stat. 25 E. 3. c. 2. Confirms the former Statute of 9 E. 3. and enacts That if any Letters Patents Proclamation or Commandment be made to the contrary it shall be void Stat. 2 R. 2. c. 1. and 11. c. 7. Both confirm the two former Statutes and enact That all Letters Patents and Commands to the contrary shall be void By these four Statutes the Freedom of Trade and Traffick is amply establish'd and all Letters Patents Grants Proclamations and commands to the contrary made void if they had not been so at common Law 2 Inst 63. And my Lord Cook upon Consideration of Magna Charta and these Statutes after Examination of several Grants of Tolls and Duties to be paid upon Merchandize saith That upon this Charter this Conclusion is necessarily gathered that all Monopolies concerning Trade and Traffick are against the Liberty and Freedom declared and granted by this Great Charter and divers other Acts of Parliament which are good Commentaries upon this Charter And then cites the other Statute that I have before cited Object But say they tho we have the sole Trade yet we are no Monopoly Resp To prove it to be a Monopoly 3 Inst 181. let us see how a Monopoly is described My Lord Cook in his Chapter of Monopolies describes it An Institution or Allowance by the King 's Grant to any Person or Persons Bodies Politick or Corporate of or for the sole buying or selling or using of any thing whereby any Person or Persons are to be restrained of any Freedom or Liberty that they had before or are hindred in their lawful Trade This Description I think exactly suits with your Patent For 1. By your Patent you have the sole Trade granted to you Sole Trade is sole buying and sole selling for Merchandizing consists in buying and selling The sole using any thing is another general Part of this Description Is not sole Trade sole using or merchandizing And for the latter Part of it whereby any Person is restrained or hindred in his Liberty 2. Your Patent grants to you to seize the Ships and Goods of any that come thither And your bringing this Action shews you are sufficiently a Hinderer of the Liberty of others to trade So that I think you can't deny but that you are comprehended under this Description But for further Evidence of its being a Monopoly let us see what the Evils and Mischiefs are that were in Monopolies which the Law speaks so hard of The Evils and Mischiefs are First That the Price of the Commodity they sell shall be kept and risen higher than otherwise it would be For he that hath the sole Trade will keep up the Price as he pleaseth And this is one of the Evils mentioned in the Case of Monopolies 11 Rep. 86. b. The Truth hereof I think is evident enough and no Man in Reason thinks but he that hath the sole Trade trades for his Advantage And the highest and dearest Rates he can sell at and the cheapest he can buy at are his Advantage Secondly A second Mischief or Evil is that Monopolies or sole Trade is pro privato paululorum quaestu So it is said to be in the Margent of the Book before cited 3 Inst 181. No Man will doubt hereof that considers the present State or Condition of this Company Thirdly Another Evil or Mischief of Monopolies or sole Trade is the Impoverishment and Oppression of the King's Subjects Trade is not in its own Nature fix'd and stable but varying and altering sometimes better sometimes worse Sometimes one Trade beneficial another not according as Wares Sicknesses Scarsity of this or that sort of Commodity or Merchandize in this or that Country Modes Fashions Customs and Habits of Men do occasion And the Merchants by their Education and Observation manage and govern this Trade for the Maintenance of themselves and their Families and the general Good of Men. And direct and imploy their Estates and traffick into this or that Part of the World as Time and Occasion shall give them best Encouragement But sole Trade into this or that Part of the World granted to one Company and of another to another sets up the particular Men that head the Companies but destroys all other Merchants and inferior People Such Patents must undo all other Parts of this Kingdom besides London For the Companies can't drive these great Trades but must manage them in London and consequently the other Parts of the Kingdom must be excluded All shipping must be subjected to the Rates and Prizes these Appropriators of Trade will give them or else lye still and be destroyed And so must all Masters of Ships Mariners all Artificers Labourers Factors and Servants whose Employments depend upon these Trades must all be subjected to their Wills And of how great Consequence that may be deserves Consideration The Instances of your Oppressions and Dealings with your Factors Captains Servants and Seamen that got any thing in their Service are well known So that if the Evils and Mischiefs which the Common Law forbids and endeavours to prevent by judging all Monopolies Ingrossings and sole Trade unlawful be to be avoided The Evils and Mischiefs attending your Patent and sole Trade are perhaps the greatest because your sole Trade is the greatest that ever England knew That every Grant of the King hath this Condition implied in it viz. F. N. Br. 222. Quod Patria per talem donationem magis solito non oneretur seu gravetur Grant le Roy al charge ou prejudice del Subject est void 13 H. 4. 14. And if the Evils and Mischiefs of this Grant be as I have stated them 'T is a Grant to the Oppression and Prejudice of the Subject And therefore the King is deceived in it and the Grant by the common Law void as I have before shewn Object But perhaps it may be objected that this Patent is granted for good Government and Order and Preservation of this Trade which will otherwise be destroyed and for the Good of the Kingdom
THE ARGUMENT OF A Learned Counsel UPON AN Action of the CASE Brought by the East-India-Company AGAINST Mr. Thomas Sands an Interloper LONDON Printed for B. Aylmer at the Three Pigeons in Cornhill 1696. De Termino Paschae Anno xxxvi Caroli II. Regis In Banco Regis Gubernator Societas Mercator ' de London in Oriental ' Indiam negotiant ' against Tho. Sands AN Action upon the Case wherein the Plaintiff declares That Our Lord the King 3. Apr. 13 C. II. by his Letters Patents reciting that the Company of Merchants trading to the East Indies have been long a Corporation and enjoyed divers Liberties and Privileges by divers Grants from Queen Elizabeth and King James That the King was informed that divers Inconveniences and Disorders were committed to the Prejudice of the Company at the Petition of the Company the King grants ratifies and confirms to the Governour and Company of Merchants of London trading to the East Indies That they should for ever be a Body-Politique by the Name of Gubernatoris Societatis Mercator ' de London in Oriental ' Indiam negotiant ' Ac eos per Nomen Gubernatoris Societatis Mercator ' in Oriental ' Indiam negotiant ' Vnum Corpus Corporal ' politicum in facto nomine realiter in perpetuum fecit ordinavit constituit stabilivit declaravit per Literas Patentes illas With Powers to purchase sue and be sued by the Name of Governor and Society of Merchants of London c. And that they and all those that then were or should be of the said Company and all their Sons at their Ages of 21 or more and all their Apprentices Factors and Servants who should be imployed by the Company in the said Trade to the East Indies beyond the Seas might traffick and use the Trade of Merchandize by Sea by the Passages and Ways discovered to the East-Indies Beyond the Cape de Bona Speranza unto the Straits of Magellan in such Order Manner and Form Freedom and Condition as from time to time at any publick Assembly or Court holden by or before the said Governor and Company by or betwixt them of the said Company or the greater Part of them present at such Assembly or Court shall be limited or agreed and not otherwise any Diversity of Religion notwithstanding so as the Trade be not with any Christian Prince or State in League with our King who shall not accept of their Commerce but refuse to accept the same And that the Company their Factors Servants and Assigns in the Trade of Merchandize shall for ever have the whole and sole Trade and Traffick and the whole Freedom Use and Privilege of trading and merchandizing to and from the East-Indies in such manner as before mentioned And that the East-Indies or the Isles and Places thereof shall not be used or haunted by any of the King's Subjects against the true Intent of the Letters Patents And by the same Letters Patents the King commands all his Subjects that none of them shall visit or frequent or trade in the East-Indies unless with the Licence and Agreement with the Company first had under their common Seal That by Vertue of this Patent the Plaintiffs have been and still are a Corporation trading to the East-Indies with the Inhabitants thereof who at the Time of the Letters Patents granted were not nor yet are Christians nor Subjects of any Christian Prince or State but Infidels Enemies and Adversaries of the Christian Faith And that their Trade hath been to the Profit of the whole Kingdom and Encrease of the King's Customs That this Trade cannot be carried on but by a Company or Body Politick And that from the making the Letters Patents they have had and ought to have had the sole Trade there That the Defendant Sands being a Subject of the King 's but no Member of the Company nor being Son Factor Apprentice or Servant or Assignee after the Letters Patents viz. 19 Jan. 34. Car. nunc to the East-Indies beyond the Cape de Bona Speranza and this Side the Straits of Magellan in certain Places called Atcheon Mecklapaton and Porto Novo with a Ship called the Expectation hath traded and merchandized And divers Wares in the said Ship to these Places transported there bargained and sold and other Merchandize there bought and into this Kingdom Imported without the Licence and against the Will of the Company in eorum praejudicium depauperationem manifestam and against the Form of the Letters Patents ad damnum of the Company 1000 l. Plea The Defendant demands Oyer of the Letters Patents which are set forth in haec verba And thereby after the naming the Governor the 24. and constituting a general Court of Assembly and the Powers of Elections of their Officers That the King doth grant as in the Declaration so far as there mentioned But then in the Clause of Grant of sole Trade at the End thereof they have omitted this And that the said Governour and Company and every particular and several Person that now is or hereafter shall be of the Company shall have full and free Liberty and Licence in form aforesaid to and from the said East-Indies according to the Orders Ordinances and Agreements hereafter to be made at their publick Courts In the Recital of the Clause prohibiting others to trade without Licence under the common Seal they leave out a Part of that Clause which is this Upon Pain that every such Person that shall trade to or from the East-Indies shall incur the Forfeiture of his Merchandize he shall bring into the King's Dominions contrary to the Purport of this Charter or which the Company shall find in the East-Indies where they traffick and also of the Ship wherein the Merchandizes are transported one half to the King the other to the Company and Imprisonment of the Offender Then follows a Clause of Grant That the Company for any Consideration or Benefit to be taken to their own Use may grant Licence to any Stranger or other to trade to or from the Indies Then the King grants to the Company That the King will not without the Consent of the Company give Licence to any to or from those Places Then there is a Clause That none of the Company shall have a Vote in the general Assembly unless he have 500 l. in the Stock And after Oyer the Defendant pleads the Statute of the 5 E. 3. c. whereby 't is enacted That the Seas shall be open for all Merchants to pass with their Merchandizes wherever they please And that he by Vertue thereof did trade as in the Declaration alledged prout ei bene licuit To this the Plaintiff hath demurr'd Before I come to state the Points and Questions upon which this Question truly depends I desire to shew what are not the Points or Questions in this Case 1. It is not the Question whether the King by Law can restrain any of his Subjects to go out of the
Kingdom For the King may so do and this without Distinction of Christian or Infidel Country pro hic nunc as Occasion may be 2. It is not the Question whether the King can restrain all his Subjects to such a Country or City It may be done upon particular Occasions as of War or Plague But from hence to argue that the King can grant you and your Successors for ever a sole Trade to such a Country or Place excluding all other his Subjects except with your Leave or Licence Because he can restrain this or that Subject therefore he can grant a sole Trade to the Plaintiff and exclude all others but you and such as you licence for ever Because he can upon particular Occasions as of War or Plague restrain or prohibit his Subjects to go or trade to such a City or Country That when there is neither Plague nor War the King should grant a sole Trade to any particular Person whether Body Politick or Natural and restrain all others for ever Can this be by the Law done If this Foundation will warrant it though in this Case this be with Infidels and upon that ground some difference imagined betwixt an Infidel and a Christian Country Yet remember your Reason or Foundation doth not distinguish or make a Difference For if because the King hath Power to restrain or prohibit Subjects to go out of the Realm Or by Occasion of War or Plague all his Subjects from trading to such a City or Country since this Power you must agree extends as well to Christian as Infidel City or Country The granting of sole Trade to one Subject or Body Politick and restraining all others is the same whether it be to Christian or Infidel City or Country And when you cite the of Statute 3 Jacc. 6. which enacts That the King's Subjects shall freely trade to Spain and Portugal notwithstanding the Charters of Incorporation granted to some Merchants and the Prohibitions in those Charters And from thence argue that because there were Prohibitions or Restraints by Charters as to those Countries which were Christian therefore such a sole Trade to an Infidel Country is well granted You must have it admitted that such a Grant to those Countries is good and legal or else you argue from that which you grant not to be lawful to prove another like Grant to be lawful Or at least by the same Arguments and Reasons maintain such a Grant of sole Trade to be good whether made to Christian or Infidel Country If then it not being the Point or Question in this Case Whether the King can restrain his Subjects from going beyond the Seas Nor Whether the King can lawfully restrain his Subjects to trade to a particular Country or Place whether Christian or Infidel Then the Questions plainly and shortly are 1. Whether this Grant of sole Trade to the Plaintiffs be a good Grant or not 2. Supposing that it should be then whether this Action be maintainable or not 1. By the Common Law Trade is free and open for the King's Subjects And this I shall endeavour to shew from Authorities Commercium jure Gentium commune esse debet non in Monopolium privatum paululorum questum convertendum 3 Inst 381. Iniquum est aliis permittere aliis inhibehere Mercaturam The Taylers of Ipswich's Case That no Trade Mechanick nor Merchant 1 Rols Rep. 4. can be hindered by the Patent of the King a Patent that only 100 Persons shall use such a Trade is void F.N.B. 85. Note that by the common Law every Man may go out of the Realm for Merchandize or travel without demanding Leave of the King Stat. 5R 2. c. 2. Prohibited all but Great Men and Merchants to pass out of the Realm without the King's Licence But this Statute is repealed by 14 Jac. c. 1. Dyer 165. That every one may at his Will go with his Goods and cites F. N. B. for it 2. And in the next place That appropriating Merchandize and Trade to a particular Person or Persons or a Body Politick excluding others is an ingrossing such Trade And that all ingrossing Trade is against the common Law 3 Inst 196. That ingrossing any sort of Merchandize is an Offence at common Law Dom ' Rex vers Crisp al. In this Court lately an Agreement betwixt divers Coprice Makers and Coprice Merchants for the buying of all Coprice that the Coprice Makers should for three Years make at so much a Tun and restraining them from selling to any others Adjudged an ingrossing upon an Information in this Court And if a Company of Merchants should buy up in like manner all the Merchandize of Spain or Portugal or the Canaries or other Town or Place for three Years to come This I think would be an ingrossing and the Contract against Law For the Consequence of it must be that they would sell at their own Price and thereby exact upon the King's Subjects And your Patent for the sole Trade to the East-Indies invests you in all the Merchandizes of those Countries and ingrosseth them all into your Hands And if a Patent grant to any the ingrossing of Merchandizes this Patent is against Law and void Ingrossing is in Truth but a Species or another Name for monopolizing for all the Difference between them is that ingrossing is commonly by Agreements and Contracts made betwixt Subjects one with another without the King 's Grant but Monopolies are Ingrossings by Colour of the King's Grants 3 Inst 181. The Case there of John Peachy who 50. E. 3. was severely punished for a Grant under the Great Seal for the sole selling of sweet Wines in London Case of Monop. 11 Rep. 84. Moor. 673. and in Noy This was ingrossing by Colour of the King's Grant and a Monopoly Darcey had the sole importing from beyond Seas and selling of Cards granted him by Patent for 21 Years under a Rent prohibiting all others to sell and this Trin. 44. Eliz. adjudged a void Grant And the Statute 21 Jac. c. 3. declares all Monopolies to be against the common Law So that this being so If this Grant be a Grant to you to ingross or monopolize then by the common Law this Grant is void 3. That that this Grant of sole Trade is against Magna Charta 9 H. 3. Mag. Ch. c. 30. and divers other the ancient Statutes All Merchants if they were not openly prohibited before shall have their safe and sure Conduct to depart out of England and to come into England to buy and sell without any manner of evil Tolls by the old and rightful Customs except in Time of War My Lord Cook saith 2 Inst 57. That the Words in this Act nisi publice prohibeantur are intended a Prohibition by the publick Council of the Kingdom by Act of Parliament This Act then being general all Merchants to have safe Conduct to go out and come into England if not prohibited by
Inst 507. My Lord Coke saith that 15060 Jews thereupon departed the Kingdom But for the Use that in arguing is made of this matter of the Jews and of the King 's seizing their Estates and pardoning for dealing with them 1. As for those ancient Records in general Time hath hidden the Knowledg of the Laws and Transactions of those Times It is impossible to know what the Laws of those Times were or rightly to distinguish betwixt legal and violent Acts And to bring Inferences from thence to conclude in Judgment now is Notum per Ignotius Or like Dependencies which unless latter Times have concurred or agreed with are only fit to make Disorder and Confusion 2. But that which is deducible from thence is not as I conceive what hath been endeavoured That is that they had no Property because the Princes of those Times took from them their Estates when they pleased or taxed them how and in what manner they pleased But perhaps the Reason was because those People lying under the Curse and being a vagrant People without Head Prince or Governour or Country it was no Difficulty to tax or take from them at Pleasure being hated of the People where they lived For it could not be as they would have it that they should be amongst us as alien Enemies for an alien Enemy can make neither Bargain nor Contract nor be capable of Property But the Subject may at his Will and Pleasure fall upon and take all that he hath to his own Use as upon the King's Enemies and what he can take from him is his own Acquisition as the Prize of his Adventure and Conquest over his Enemy And to prove this two Books are cited 17 E. 4. and 2 H. 7. But by what is admitted by them that they were great Usurers and had great Estates It is evident that they were treated as alien Amies How could they else in such Multitudes live amongst us How could they be Usurers or get Estates if they could not make Contracts How is it possible they could preserve their Bodies or Estates against the King's Subjects unless they had the King's Protection and treated as alien Amies And of latter Times how many of them have lived amongst us driven great Trades have had and have at this present considerable Estates Let it be now adjudged that any Man that will may take away their Estates that they can have no Remedy or Action for any Debt owing to them but instead thereof may be beaten and imprisoned as Enemies to the King And we shall probably see what the Success of such a Judgment will be 12 Car. 2. cap. 18. The Act of Navigation made the 12 Year of the King concerning Trade shews that Infidels have the same Liberty of Trade as others That Act being made for Encrease of Shipping and Navigation and prohibiting Goods to be imported by any foreign Ships except the Ships of the same Country where the Goods do grow or arise distinguisheth not betwixt Infidel and Christian Countries But expresly saith That Currants nor Commodities of the Growth of the Turkish or Ottoman Empire shall be imported but by English Ships except Ships of the Built of that Country or Place where the Growth is and whereof the Master of the Mariners is of that Country or Place This Clause shews plainly that the Infidels of the Turkish and Ottoman Empire have Liberty of Trade here And the Acts of Tunnage and Poundage tax all their Merchandizes without saying brought in In Southern How 's Case 2 Cr. 469. where a Man imployed another to sell Jewels for him in Barbary as true Jewels and he sold them to the King of Barbary for 800 l. as true Jewels when they were counterfeit and thereupon the King of Barbary finding himself cheated imprisoned the Plaintiff that sold them to him till he repaid his Mony In that Case 't was of all sides admitted and not as much as objected that this Contract was void because the King of Barbary was an Infidel So that this Opinion that Infidels are perpetual Enemies and in perpetual Hostility can maintain no Action nor have any thing amongst us hath no Authority for its Foundation but only some extrajudicial Sayings without Debate or Consideration And is against all the continual Practices of Princes and People at all Times Perhaps 't is no small Part of Religion that Men should speak and deal plainly and uprightly one with another We do know that Religion hath been too often made a Cloak and Vail for other Ends and Purposes It should not be so And I hope will not be so used in this Case The Statutes that I have cited of Magna Charta c. 9. E. 3. 25 E. 3. 2. and 11 R. 2. All declare and enact the Freedom of Trade in general Words except only such as are in War with the King In none of them is there any Exception of Trade with Infidels Can it be imagined that in those Days we had no Trade with Turkey or Barbary Our Kings went with Armies to the Holy Land King had made War and Peace with the Turks Had we no Trade there but with our Swords But to look nearer home Spain and Portugal were Infidels and in the Hands of the Moors until anno 1474. which was 14 E. 4. Can it be thought that in all those Times betwixt Magna Charta H. 3. and E. 4. we had no Trade with Spain or Portugal Stat. 12 H. 7. c. 6. was made in the Year 1497. which is but 23 Years after the Moors were driven out and in that Statute 't is Recited That the Merchants Adventurers dwelling in divers Parts of England out of London did shew That whereas they have had free Passage Course and Recourse with their Goods Wares and Merchandizes in divers Coasts and Parts beyond the Seas as well into Spain Portugal Venice Danzick East-land Frize-Land and divers and many other Regions and Countries in League and Amity with the King That they were imposed upon by the Company of Merchants in London and forced to pay Duties I only make use of this Recital to prove the free Passage there mentioned to Spain and Portugal and to other Countries and Regions There is no Distinction of Infidel from Christian Country though Spain and Portugal had been so lately Infidel and though most probably the Trade they had then was with Turkey and Barbary as well as with Venice The Words other Regions and Countries seem to imply as much and the Freedom equal So that I think as to this Objection that Infidels are perpetual Enemies that we have no Peace with them nor they maintain any Action or have any Property by our Law I think the Authority to maintain it is none at all The constant Practice as well by Princes as People has been always against it But be that Point of trading with or without Licence how it will That Point can't be sufficient to found a Monopoly upon that can't