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 inhibebere 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 Note F.N.B. 85. 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. That every one may at his Will go with his Goods Dyer 165. 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 In this Court lately Dom ' Rex vers Crisp al. 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
absolutely Necessary unless the Salt fit for any Improvement or further Manufactury yet we permitted that Trade to go on though at the same time that we took such vast Quantities of Unprofitable Commodities from them they totally prohibited the expence of all East-India Goods from us and laid such Impositions on our Woollen Goods as was tant amont to a Prohibition thereby bringing us indebted to them for great Sums every Year which they took from us in Coyn Bullion or Treasure as before-mentioned They also had another great Advantage at that time by our Nobility and Gentry being so sond of Travelling or Living in France It hath been computed that by this Article only they might get near 200000 l. a Year from us in Money The Ambition Conduct Strength and Riches of that Nation having lately appeared so terrible to all Europe and particularly to this Kingdom by their endeavours to get the possession of Flanders and so consequently Newport and Ostend and thereby to have had the Vnited Provinces by Compact or Conquest intirely in their Interest and to out-match us by Sea which would have brought us into an irrecoverable condition as it gave just cause for the present Confederacy against them for the carrying on of the War so it concerns all the Confederates that it should ever be continued in point of Trade that if possible they may not hereafter reap any such Advantages as formerly by it from us or any other Nation for it is that which hath chiefly enabled them to carry on these Designs especially by Sea And as all Europe are concerned to reduce them to their Old Limits by Land so is England more particularly to diminish their Naval Strength not likely to be effected without solid Counsel a great Charge and circumspection in matters of Trade As hath hitherto made War upon us with much of our own Money gotten by Trade and by the War so may again if we should permit our Trade so to go on as may inrich them and impoverish our selves Nothing can be more dangerous as matters now stand between us and the French than to permit any thing we can prevent that may tend to the increase of their Naval Strength or the diminishing of ours what they have already being such an impending Evil and a Rod over us by the Advantage they have by their Ports in the Mediterranean Ocean and our Channel as may require ever hereafter what may be called a standing Army of Seamen as well as many Men of War in a constant readiness to protect our Trade in which there will be great difficulties as well as to prevent Surprizes which will be a great addition to the Charge of the Government even in times of Peace The Law already made for making all French Goods lyable to pay such extraordinary Duties as amounts to a Prohibition will put a necessity upon them to come to a Treaty of Commerce in which care may be taken that they have not any Advantage upon us by any Trade in Gross Goods but it may be difficult to find out any way to prevent their pilfering upon us by smuggling Trades by which carried on in Goods of no great Bulk in time of Peace they drained us of more Money than by their Gross Goods and since this War have constantly drawn from us great Sums Nothing more like to prevent it and the like from other Countries than a Law that all Wrought Silks Linnens Ribbons Points Laces and such like Commodities shall be forfeited in all hands or places where they are found unless sealed with Seals that may be put on by Officers of the Custom-House or others which may possibly be so contrived as to put it beyond the Art of Man to counterfeit and not be found out Without some such Law and Certificates from Abroad by which it may be known from what Countries such Goods do come not likely to prevent Foreign Nations from putting upon us on any terms what Goods they please of great Value though of small Bulk by which as the King hath alwayes been defrauded of great Sums in his Customs so will ever and the Nation of more by such losing Trades not to be prevented but by a strict Law for siezing of such Goods Also the incouragement of our Silk Linnen and Paper Manufacturies which are the great Staple Commodities of France may conduce very much to the altering the Ballance of that Trade or to bring them upon an equal foot with us If we should hereafter take from them as many Wines and Braendies as formerly they may serve to intoxicate but never to inrich us And though it may be argued that the first Cost and Charges in France of 40000 Tons Shipt Aboard is not above 200000 l. yet it would be a great Mortification to the French if that were with-held hard to be born by their Landed Men whose Incomes arise from those Commodities and be a great incouragement to the Portugal and other Trades from whence we can have Wines in return of our Products but most for our Interest to spend no more Wine than our Forefathers did Those Countries and Kingdoms which we usually comprehend under the name of the East-Indies East-India Trade being Naturally stored with Rich Commodities Materials good and cheap for Manufacturies People ingenious in Fabricking of them and skilful at many Handicraft Trades working in some places for a Penny per Day Wages Spices very plenty because many sorts afford two others four Crops or Harvests in a Year Diamonds in abundance and other precious Stones as well as several sorts of Druggs and other Useful and Valuable Commodities hath fixt the Eyes and Hearts of all the Trading Nations of Europe upon them and occasioned great Contests who shall enjoy the greatest part of that Trade though if should increase the Vaults of the Great Mogul and his Nhabobs may in time prove to Europe as the Gamesters Box to Gamesters get the Gold and Silver near as fast as it may come in from Africa West-India or other places and by the Manufactureed Goods from thence endanger the making of their own Trades in a great measure useless This Trade hath been for many Years managed by a Company with a Joint-Stock exclusive to others which hath occasioned great Contests and Differences amongst the People amounting to a kind of Civil War The Exports for this Trade are most in Bullion and whatever may be objected not less than 600000 l. per Annum taking any number of Years when the Trade was carried on without any great obstruction tho their Charter from King Charles allowed but 50000 l. per Annum and the Imports as may appear by the Custom-House Books are Druggs Saltpetre Wrought Silks Diamonds Spices Thrown Silk Raw Silk Callicoes Indigo Sheets Shifts Cabinets China VVare Cornelion Rings Quilts Petticoats Gowns Neckoloths Ebony Chairs Cotton Yarn Cotton VVooll Ereny Yarn Floretta Yarn Clouts Fans Guinea Shifts Goats Hair Girdles Garters Ink VVax Handkerchiefs Muslins Persian
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 The Case there of John Peachy 3 Inst 181. who 50. E. 3. was severely punished for a Grant under the Great Seal for the sole selling of sweet Wines in London This was ingrossing by Colour of the King's Grant Case of Monop. 11 Rep. 84. Moor. 673. and in Noy 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 and divers other the ancient Statutes 9 H. 3. Mag. Ch. c. 30. 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 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 Magna 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 And my Lord Cook 2 Inst 63. 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 F. N. Br. 222. viz. 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 And there have been in all Times such Patents as to Turky Barbary Guiny and others Resp 1. Remember what our Books say That new Corporations trading to foreign Countries 2 Inst 540. under the fair Pretence of Order and Government in Conclusion tend to the Hindrance of Trade and Traffick and in the End prove Monopolies In the End of the Case of Monopolies 11 Rep. 28. b. Privilegia quae rever a sunt in praejudicium Reipublicae magis tamen speciosa habent Frontispicia boni publici praetextum quam bonae legales concessiones But praetextu liciti non debet admitti illicitum The Words of that Book And there also it appears and is taken notice of that Darcie's Patent had a glorious Preamble viz. That the Subjects might exercise their Husbandry and lawful Imployments and not be corrupted to Idleness by the wicked thing called Cards the sole Sale and Trade of Cards is granted to Darcey Observe says the Book what a glorious Preamble and Pretext this odious Monopoly had That Patent which made 3 Years after this Horn and Ivy Mich. 20. B. 2. c. 403. and dated 17 of March 17 Car. 2. in Imitation of this erected the Canary Company and granted them the sole Trade Recites That the Trade to the Canaries was of greater Advantage to the King's Subjects formerly than at that Time That by reason the too much Access and Trading of Subjects thither our Merchandizes were decreased in their Value and the Wines increased to double Value so that the King's Subjects were forced to carry Silver and Bullion there to get Wines And that all this happened for want of Regulation of Trade And thereupon the Patent constituted Sir Arthur Ingram and about 60. Persons more by Name and all others of the King's Subjects Merchants or Factors trading or that had within seven Years traded to those Islands to the Value of 1000 l. per Annum and all others that after should be admitted should be a Body Politick That there should be a Governor a Deputy Governor 12. Assistants and names them but to be continued by Election That they should have the sole Trade to these Islands And that none other should haunt or visit those Islands under Pain of Forfeiture and Imprisonment With non obstante to the Statute of Monoopolies Judgment was given against this Patent Here is in this Case the same Pretence and Preamble as in yours The Abuse of the Trade and the Regulation of it for the general good was the thing pretended but few Men doubt what was intended Under the Name of Regulation and Government to ingross all into the Hands of 10 or 12 Men is most excellent Regulation and Government Resp 2. And as to other Companies and Charters that have been granted Supposing that all these Grants were such as this and practised and used as this yet 't is no Argument that they were legal or good Grants Have not there been in all Ages and Times Patents and Grants such as by Law were void and of no Force If it be so it is no Argument that because there have been many such Grants therefore this is good But to keep my self to Monopolies Monopolies have been frequently in all Times granted even in the best of Times many by Queen Elizabeth Darcy's was granted by her In the Recital of it appears that there had been granted before it divers others of that Monopoly of sole selling and making Cards But when it came in Question it was condemned Stat. 9 E. 3. c. 1. And the other Statutes before cited The Clauses that say that all Patents granted or to be granted contrary to the Freedom of Trade in these Statutes mentioned Prove 1. That such Patents had been 2. That they did foresee and provide against those that would be 43 Eliz. c. 1. Sect. 9. That Proviso shews that there were Monopolies granted but yet so far from receiving any Allowance that that Statute made in the End of her Reign for confirming her Patents by special Proviso excepts and provides That that Statute shall not extend to make good any Letters Patents made or granted of and concerning Licences Powers or Privileges commonly called Monopolies The Statute of Monopolies and this Statute sufficiently shew that there were such Grants and that they were not allowed This therefore is no Argument But on the contrary it hath not nor cannot be shewn as I believe that ever any had any Judicial Allowance in any Times past for any sole Trade or sole buying or selling which is a great Argument to the contrary And further The Practice of these Companies hath been generally to the contrary and till within these late Years no sole Trade practiced amongst them This and the Charters to the Companies of Turkey and the rest perhaps are in this particular alike viz. that there is in Words granted to them the sole Trade But the Use and Management of these Charters vastly differ For the great Companies Turkey Muscovy Russia and
Or ordering of any Trade or Merchandize If you say you are saved within the Extent of these Words then must you make a Construction of these Words in this Sense That ordering Trade and Merchandize is excluding all others and taking the whole to your selves A most excellent ordering indeed But the true Sense of these Words in this Proviso is to save the Corporations and Fellowships of Arts Trades Occupations and Mysteries and to Companies of Merchants the Powers and Authorities that they had for the Maintenance Enlargement or ordering of Trade By taking care that the Commodities were honestly and rightly made without Fraud or Deceit in their Measures or Quantities That the Servants and younger sort were honest and industriously educated in their Trades and Mysteries by the Masters and elder sort To place and keep good Order and Decorum amongst those of the same Mystery and Trade For assembling and consulting for the common Good and Management of their respective Trades and Imployments This is that which the Proviso excepts and provides for Not for a sole Trade in a Company in a joynt Stock excluding all others as this is The Company there made a By-Law Taylors of Ipswich Case 11 Rep. 54. to exclude Taylors from using their Trades within that Town unless by the Masters and Wardens of the Company or three of them admitted to be a sufficient Workman In this Case here seemed to be a good End and Meaning to exclude insufficient Workmen and encourage good Workmen a good Order one might think Yet so jealous and careful they then were lest under any Pretence they should exclude Men from their lawful Trades that they adjudged this a void By-Law as tending to restrain Men of their Freedom in using their Trades and introducing Oppression of the young Tradesmen by the old and rich Tradesmen And in that Case adjudged That Ordinances for the good Order and Government of Men of Trades and Mysteries are good but not to restrain Men in their lawful Mystery To the same purpose is Norris and Stop 's Case Hob. 211. So that this being the Sense of this Proviso to except Powers and Authorities that Companies have to regulate Trade for the Maintenance and Enlargement of it but not to restrain any from their Trades or lawful Mysteries it extends not to salve or preserve such Authority or Power in you to have a sole Trade excluding all others 2. For another reason it cannot be the Sense of this Proviso to except or save to any Body Politick the buying in their publick Capacity a sole Trade The Proviso then will be repugnant and contradictory to the enacting Clauses For taking the Proviso as they would have it To save to Bodies Politick the having the sole buying and selling and using any Merchandize or Trade as a Corporation and then compare the Proviso with the enacting Clause and it will be just thus Enacted That Letters Patents to any Body Politick for sole buying selling or using any thing shall be void And that no Body Politick shall be capable of having using or exercising any such Patent Inhibition or Restraint Provided that Bodies Politick may have the sole buying selling and using any Trade Is not this in plain English repugnant and contradictory Examine it as much as you can and it will be no other than a down-right Contradiction Suppose the Statute that enacts that no Man shall use a Trade that he hath not served an Apprentice to by the Space of seven Years had a Proviso That Men might use a Trade that they had not served an Apprentice to by the Space of seven Years This had ben a void repugnant Proviso This is as plainly repugnant That no Body Politick shall be capable of having a sole Trade Provided that a Body may have a sole Trade And repugnant Provisos are in Law void Statute gives the Land of J. S. to the King 1 Rep. 46. Pl. Com. 563. Then a Proviso comes to save the Right of all Persons This shall be construed all Persons besides J. S. not to destroy the Premises Therefore when the Act saith That all Patents granted to Bodies Politick for sole buying and selling or using any thing c. Shall the Proviso that saith That it shall not extend or be prejudicial to Companies of Merchants erected for the Maintenance Enlargement or ordering of Trade If construed in the same Sense that they would have it to give the Companies sole buying selling and using any thing as Companies in their Corporate Capacity it is repugnant and contradictory But to give the Companies the Management Order and Government is the Sense as I conceive And this is the general Practice of the Societies and Companies allowed in all times But a sole Trade under the Colour and Pretence of Order and Management never as I believe hath had any judicial Allowance Object Another thing that the Counsel of the other side have objected to evade this Act hath been this The Proviso is That the Act shall not extend to Companies of Merchants erected for Maintenance and Ordering of Trade but that their Charters Liberties and Privileges shall be of like Force as they were before the making this Act. And therefore say they Patents to Companies of Merchants for ordering Trade if good before this Act shall be good still and therefore say they the Act can't hurt us This is curious but if examined is but the same Objection in other Words For the Conclusion of this Proviso extends no further than the Charters mentioned in the Beginning of it It extends but to the same Charters so are the very Words What Charters or Patents then shall remain in the same Force they were before the Act Those that are excepted What are excepted Those that are for Order and Management as I have before shewn Not those that are for sole Trade granted to a Body Politick That is repugnant to the enacting Clause therefore those as I have said are not excepted or within the Proviso If then not excepted you are most plainly and fully within the enacting Clause and your Patent quite contratrary to and void by this Act unless the matter of Infidel will save you Object But this is a sole Trade with Infidels and such a Trade the Subject had never any Right to have without the King's Licence And to prove it they cite Michelburne's Case Wherein Mr. Brownlow being Prothonotary 2. Brownlow 296. doth relate what my Lord Coke said That no Subject of the King might trade with any Realm of Infidels without the King's Licence And that the Reason was because he might relinquish the Catholick Faith and adhere to Infidelism And that he had seen a Licence in the Time of E. 3. where the King recited the Confidence that he had in his Subject that he would not decline his Religion and so licenced him And that this did arise upon the Recital of a Licence made to trade to the East-Indies They cite also Calvin's
Case 7 Rep. 17. where 't is said That Infidels are perpetui inimici there is perpetual Hostility there can be no Peace an Infidel can maintain no Action nor have any thing within this Realm and to prove this there is cited R. 282.12 H. 8.4 1. Supposing the Law to be as these Books intend and as the other side urge them and the Consequence will be that the Plaintiff can't maintain this Action but that the Charter granted to them is void The Reason that is given in Michelburn's Case is grounded upon this That the King hath the Care and Preservation of Religion by the Law vested in him That his Subjects shall not trade with Infidels lest thereby they may be brought to relinquish the Catholick Faith and adhere to Infidelism And that the King shall take care that Licences to trade be only given to such as the King hath Confidence in that they will not decline their Religion Supposing this then your Patent must be naught for then it is only grantable to Persons in whom such Confidence may be 1. Your Corporation or Body Politick is indefinite as to Persons the Members thereof are daily changeable some go out sell their Stocks or dye others buy their Stocks and are daily coming in to be Members of your Company I doubt you do not much examine nor care how fixed or certain those are in Religion that come into your Company How then can there be any Confidence in a Body Politick The Law saith that a Body Politick hath neither Soul nor Conscience What Confidence then concerning their Religion can there be in a Body Politick 2. 'T is not only the Members of the Company that were at the Time of the Corporation but those that after should be Members and their Sons their Apprentices Factors and Servants that are licensed by this Patent If licensing to trade with Infidels be a Trust and Prerogative in the King to be given to such Persons in whom the King can have Confidence that they will not be conversing with Infidels change or prejudice This can't be granted to a Body Politick and their Successors which may have Continuance for ever or to their Sons Factors Apprentices and Servants Persons altogether unknown not born nor in rerum natura when the Patent was made Suppose such a Licence to you to trade with Enemies I say 3. Supposing it to be in the King's Prerogative in Preservation of Religion to licence yet he can't grant this Prerogative to you that you shall have Power to grant Licence to whom you will Yet all this is done by your Patent for you have not only thereby Power granted you for your Apprentices Factors and Servants which are Persons that you your selves nominate and appoint at your Discretions and undoubtedly very religious But by your Patent it is expresly granted that the Company for any Consideration or Benefit to themselves may grant Licences to any Merchant Stranger or other to trade to or from the Indies And that the King will not without the Consent of the Company licence any other to trade Can this be a good Grant Can the King grant from himself his Kingly Care and Trust for Preservation of Religion to you that you shall manage it and that the King will not use such his Power without your Consent So that supposing that there is by the Law such a Trust reposed in the King for Preservation of Religion as you would have it yet the Grant to you is void in it self and then you have no more Right than we and consequently can maintain no Action against us 2. To consider the Books that you have cited to maintain this religious Point 1. Brownlow's Reports a Book printed in the late Times not licensed by any Judge or Person whatsoever The Roll is Michelburn against Bathurst Mich. 7 Jac. B. C. Rot. 3107. setting forth that the King had granted the Plaintiff his Commission to go with his Ship Tiger to the East-Indies to spoil and suppress the Infidels and to take from them what he could That there were Articles betwixt the Parties for Account and Shares of what should be got and upon those Articles a Suit in the Admiralty And what is it that is in the Case Nothing to the purpose but the Book mentions only what my Lord Coke said upon the Motion for the Prohibition Only a sudden occasional Saying not upon any Argument or Debate nor to the then Case So that a Man must be very willing that will much rely upon such a Saying I can't call it an Authority 2. For Calvin's Case That an Infidel is perpetuus Inimicus and can maintain no Action or have any thing and that we are in perpetual Hostility and no Peace can be made with them It is true that this is said in Calvin's Case but there was nothing there in Judgment that gave Occasion for it so that I can't think that it was much considered before it was spoken The Books there cited to prove it are Reg. 282. And all that I can find therein is that in a Writ of Protection granted to the Hospitallers of the Hospital of St. John's of Jerusalem it is said that the Hospital was founded in Defence of Holy Church against the Enemies of Christ and Christians But doth this prove that Infidels are perpetui Inimici with whom no Peace can be made that can maintain no Action The other Book cited is 12 H. 8.4 a Trespass brought for taking away a Dog and in the debating whether this Action did lye or not it is said That if the Lord beat his Villain an Husband his Wife or a Man outlawed or a Traitor or a Pagan they shall have no Action because they are not able to sue an Action So that this also is but Discourse and sudden Thoughts and Sayings where the thing was not in Question And what Authority is there in such Sayings It is true that Christian Religion and Pagaism are so contrary one to the other as impossible to be reconciled no more than Contradictions can be reconciled But because they can't be reconciled that therefore there should be perpetual War betwixt them and us perhaps is an irreligious Doctrine and destroys all Means of convincing Infidels to the Faith And besides these extrajudicial and occasional Sayings in these Books cited are of little Authority For I can't find any Book or Case much less Judgment or Authority for such Opinions in so great a Point as this is But on the other side if a Man considers the general Course and Practice Trade and Commerce and legal Proceedings a Man would think That my Lord Coke could not be in earnest in what he hath said about Infidels For let a Man consider what a great Part of the World we have Commerce with that are Infidels as Turks Persians the Inhabitants of Barbary and other Countries Spain and Portugal were also possessed by the Moors who were Infidels till about the Year 1474. about 200
Years since they were driven out for till then for near the Space of 700 Years the Moors possessed both Spain and Portugal Have we not Leagues and Treaties with the Princes and Inhabitants of the Infidel Countries receiving Embassadors from them and sending Embassadors to them and Ministers always residing with them Have we not from Time to Time Peace or War with them in like manner as with Christian Kings and Countries If Infidels be perpetui Inimici if in perpetual Enmity then we may justifie the killing of them as those that we are in Hostility with wheresoever we meet with them 17 E. 4.13 b. 2 H. 7.15 Adjudged that any Man may seize and take to his own Use the Goods of an alien Enemy 'T is the Price of his Adventure and Victory over his Enemy If an Infidel be any Enemy any Man may then take away the Goods of an Infidel and have them to his own Use And this would be a good Trade if this be so Mr. Sollicitor in his Argument was pleased to cite many ancient Rolls out of H. 3. and E. 1. and about those Times concerning those Princes handling the Jews In Mr. Pryn's Book that he calls The second Part of a short Demurrer to the Jews long discontinued Remitter into England printed in 1656. In which Book I believe an hundred Records and Histories are cited to shew how they were about those times handled The Time that they did exact and much enrich themselves by Usury to the great Impoverishment of the People And that the Princes of those Times polled them taxed them and took it from them again at Pleasure But besides Mr. Pryn Stat. of Merton C. 5. made 20 H. 7. was my Lord Coke saith 2 Inst 89. principally intended against the usurious Jews Stat. de Judaismo 18 E. 1. Recites that the King's People were disinherited by the usurious Jews And enacts That no Jew for the suture shall take Usury My Lord Coke saith 2 Inst 507. 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 The Act of Navigation made the 12 Year of the King 12 Car. 2. cap. 18. 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
sold them in England against the Will of the Company to their Prejudice and Impoverishment against the Form of the Letters Patents to the Damage of the Company 1000 l. 1. You have not alledged that he had no License from the King 2. You have not shewn any Loss or Damage that you have Did he buy so much Merchandize in the Indies as that he left not there sufficient for you to furnish your Ships withall so that they came home empty No such thing is alledged Or did he here export to sell so much Merchandize as not sufficient left for you to buy here No such thing alledged in your Declaration Or did he bring home here so much as that there were not Buyers sufficient for his Goods and your's also No such thing is alledged Or is the Truth so as that hereby your imposing your Prizes upon your own Commodities selling at your own Rates and exacting what you thought fit was hindred and for this you would maintain an Action It will be the first Time I think that a Man did ever recover Damages for being hindred of imposing and exacting his own Prizes or having the Advantage of his Monopoly A Commoner may bring an Action of the Case against a Stranger who puts in his Cattel into the Common provided that thereby the Common be impaired and the Commoner have not sufficient Common as before but have a Damage otherwise he can maintain no Action Resolved that for every feeding of the Beasts of a Stranger in a Common Co. 9 Rep. 113. the Commoner shall not have an Assize or Action upon the Case but the feeding ought to be such that thereby the Commoner cannot have Common of Pasture for his own Beasts 'T is the Consequence the Loss of his Common that gives him Cause of Action 'T is not alledged in the Declaration that your Trade was any thing the worse No Damage to you appears by it What Reason is there that you should recover Damages where you have not sustained any Loss And if you have alledged none in your Declaration how can your Declaration be good It then contains no Cause of Action The last Point in that Case is there resolved 11 Co. Rep. 88. b. Rols Abr. 1 part 106. that admitting the Patent good yet no Action would lye In that Case the Queen by her Letters Patents had granted to Mr. Darcey that he his Servants Factors and Deputies the whole Trade Traffick and Merchandize of Cards for 12 Years should have and use That none else should use the Trade nor buy or sell Cards That the Defendant did contrary to this Patent sell Cards 1. Adjudged that this was a Monopoly and the Patent void 2. That if the Patent had been good yet no Action would have lyen against the Defendant upon it 2. But for another Reason you can't maintain this Action It is grounded upon the Restraint and Prohibition of others to trade contained in the Letters Patents That Restraint or Prohibition is not an absolute Restraint or Prohibition but sub modo under a Pain of Forfeiture of Ship and Goods One half to the King another half to you that are the Company Now supposing all that you can desire That this Patent should have the Force and Vertue of an Act of Parliament yet such an Action as this could not be maintained upon it but you must sue for the Forfeiture For whensoever a new Law is made you must take that new Law as it is and it can't be extended Co. 7 Rep. 37. 11 Rep. 59. and Pl. Com. 206. All prove it Stat. E. 6. gives treble Damages for not setting out of Tithes Can the Party wave this Way and bring an Action of the Case Yet here the Damages are given to the Party The like of all other penal Statutes a Man must forfeit only the Penalty the Statute inflicts So that this Action cannot as I conceive be maintained So that to conclude 1. That which this Company claims in this Case by this Patent to have the sole Trade to the East-Indies in their Politick Capacity excluding all others is a Monopoly and ingrossing against the common Law the ancient Statutes the Statute of Monopolies 21 Jac. And therefore they have no Right to have what they claim 2. That what the Defendant hath in this Case done he hath lawfully done and therefore not to be punished 3. 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