This is a trade not to be carried on but by a Company; and none can erect a Company but the king. The king hath the sole power of this trade, as of war and peace; and by declaring a war, he may determine a public trade, though settled by act of parliament. No parliament ever looked on this as a monopoly, nay, so far from it, as in the 14 Car. 2, cap. 24, this Company, &c. are said to be an advantage to the public; and that act was made, that the persons of this Company, &c. should not be discouraged in those honourable endeavours, for promoting public undertakings; then how can this be a monopoly? And all the king's subjects are bound to take notice of the king's great-seal and privy-seal. Secondly, The king hath the controuling power over all trade with infidels; he may say, over all foreign trade in general: he saith, Michelborne's case goes farther than Fitzherbert's N. B. and he hath not heard any authority offered against Michelborne's case, as to trade with infidels; and the opinion in that case seems to be given upon such a question as this. So that it is the judgment of the court in a like case, for he who was then chief-justice delivered it, and none of the court opposed it. The prerogative of making leagues is in the king, and he may make them as he pleases; It never hath been questioned as such by then it would be hard, the law should give the parliament, though they have looked narrowly king a power to make leagues, and yet the subinto the king's prerogative, even to the ques-jects should have a right to do such things to tioning some things that were his undoubted right; and concludes pro Quer. Withins. Here are two points; First, Whether letters patent giving a sole trade to a Company, exclusive to others, be good? Secondly, Whether, in case if they be good, an action lies? He thinks there is but one question, and that whether the action will lie or not, as the Company hath an interest or not. For if they have an interest by these letters patent, then the action will unquestionably lie. The case depending solely on foreign trade with infidels, he shall apply to that, and not meddle with inland trade. "Tis a great point as to the king's prerogative, and the people's liberty. First, He takes it, that by the common law the king has a prerogative to restrain all his subjects from going beyond sea, as F. N. B. 85. 'Tis true F. says, every subject may go out of the realm to merchandize, &c. but that is to be understood, he shall not be punished for so doing, but the king may prohibit him, as appear by the same book; and that three ways, i. e. by the great-seal, the privy-seal or signet, or by proclamation. And though in Dyer 165, cited by Mr. Williams, 'tis said, that before R. 2, subjects may go beyond sea, yet 'tis there agreed, the king may prohibit; and a quere is made, if a going over without a licence be not a contempt, though there was no prohibition. Afterwards in the same book, 296, 'tis holden such departure before express prohibition is no contempt; but all the books say, when there is a prohibition, then it is a contempt. As none may go against or without the king's licence; so if they are gone, the king may recal them, as appears by Dyer $75. "Tis objected, the king may prohibit some particular persons by writ; but he cannot prohibit all his subjects. Answered, There are several ways of prohibiting by writ, which is directed to particular persons; and by proclamation, which is general. break them. But though the subjects may not trade with infidels, yet the king may license them, or trade himself; as the Jews were prohibited commerce with the nations, yet Solomon traded with Hiram king of Tyre for gold. The several licenses and petitions, cited and. shewn by the plaintiffs counsel, though they prove no right in the crown, yet are evidences of it; for to what purpose should there be so many licenses from the crown, and petitions from the Commons to the king, for liberty to trade, unless the king had such a right? Therefore, unless where the parliament hath opened it, the king hath power to controul all foreign trade, especially with infidels. Objection. But though the king had such right, yet now the prohibiting part of the patent is void by the statute of E. 3. which is pleaded; and the enabling part of the patent is void by the statute of Monopolies. Answer. As to the first, that statute relates not to this trade. First, Because no such trade then in being; so that the parliament could have no regard to it, unless by prophecy, neither could they know whether it would prove hurtful or beneficial to the kingdom. But take the act at the largest, yet you must take it to relate to the subject matter, which was for wool; so that the words shall be open' may be taken free from custom,' and to have no other impositions upon them. As to the second, whether a monopoly: he says, a monopoly is no immoral act, but only against the politic part of our law; which if it happen to be of advantage to the public, as this trade is; then it ceases also to be against the prohibiting part of the law, and so not within the law of Monopolies. The company hath been in possession of this trade near one hundred years, and that possession will in time give a right: and cited 'Grotius de Jure Pacis,' &c, and concludes pro Quer. 1 The ARGUMENT of the Lord Chief-Justice The East-India Company Plaintiffs, and Tho- PLEA. 1. Defendant demands Oyer of the letters patent which are set forth in hæc verba: In which (as it hath been observed) the penalty of forfeiture of ship and goods, one moiety to the king, and the other to the company, and imprisonment, is omitted. 4. There is a clause, that the company may license strangers or others, and that the king will not without the consent of the company give licenses, &c. prehend, the case was resolved into these two granting license or liberty to the plaintiffs, to action be maintainable for the plaintiffs? points: I think not amiss, to remember some 1. At this time I conceive, therefore, that from going beyond seas by writ or otherwise, whether the king may prohibit his subjects by his absolute prerogative, without giving any reason, is not the question; nor sure was it ever thought a question, till it was lately stirred at the bar. For the writ in Fitz. N. B. 85. and books say, the surmises mentioned in those the Register import no such thing; and our writs are not traverseable: so is Dyer 165 and 296. For surely the king may restrain his subjects from going beyond sea, and is not 3. That none shall have a vote in the gene-bound to give any reason for his so doing; but ral assembly, but he that hath 500l. stock. that is not now in question. 4. And there is another, which hath not been mentioned by the counsel on either side; that if it should hereafter appear to his majesty or his successors, that that grant, or the connuance thereof, shall not be profitable to his majesty, his heirs and successors, or to this realm, that after three years warning, under the privy-seal or sign manual, the same should be utterly void. For Plea, the defendant says, by an act of parliament, made 15 E. 3. it is enacted, that the sea shall be open for all merchants to pass with their merchandizes where they please; and that the defendant, by virtue of that act, and according to the common law of England, did traffic within those places mentioned in the declaration, without any license, and against the will of the company, as the plaintiffs have declared, prout ei bene licuit.' Plaintiffs demur. In the debate of this case, at the bar, there were several matters discoursed of; but at length by the consent of both sides, as I ap is any difference (though much discourse hath 2. In the next place, I do not conceive there been about Indians and Infidels) whether the East-Indies were, at the time of the grant of this patent, inhabited by christians or infidels; though by the way, in the debating of this case, I shall shew perhaps that matter may in some measure affect the defendant, but will not I conceive, that whether this country or place, at all affect the grant to the plaintiffs. So that or any other inhabited by christians or infidels, that is not otherwise provided for by act of parliament, will make but the same question. letters patent, viz. touching forfeiture of ship 3. Whether every clause and article in these and goods, imprisonments, or divers other clauses contained in the charter, be legal or not, is not now in question. For surely it would be hard to maintain them all, and therefore the by bringing this action; and though the deplaintiff's counsel have avoided those questions, fendant's counsel have mentioned them, yet surely it was only intended to sully the cause, question. and not that they thought them to affect the "This was the great cause that depended, at that time, against Sandys for interloping: but concerned the merchants in London, who com- grant to the plaintiffs the king has fettered or 4. Nor is it the question, whether by this plained against the East India Company for confined his prerogative, by putting in a covebeing a monopoly, and began almost to form nant to exclude himself from granting licences an interloping company. But the judgment to others of his subjects to trade within the limits of law, being for the Company, put a stop to it. of the plaintiff's charter; though Mr. Williams Jefferies espoused the matter with great fury; (always a friend to the king's prerogative), in and though not much given to law matters, he, tenderness and care thereof, seemed to be surin giving his judgment made a prolix Argu-prised by the inconsiderate extravagancy of the ment, as the Reports of the case, wherever they appear, will shew. There was somewhat extraordinary at the bottom: but I have no ground to say what." Lord Keeper Guilford, vol. 2*. p. 109. Edit. North's Life of the 1808. grant; and would have us believe, that he was any of the clauses in the charter; so I am of opinion that that objection also does not affect the question now to be determined: and for that reason, amongst others, I thought it not improper to mention that clause in the charter that was omitted at the bar, which the king has annexed as a condition to his grant; that if it should hereafter appear to his majesty or his successors, that that grant, or the continu by having a greater regard to the East-India | Company for the sake of their money, than they had to the king in discharge of their duty. To acquit them and us, therefore, of that dilemma, I am of opinion, though it makes nothing to the question that is now before us, the king may grant licences to any of bis subjects to trade to the East-Indies, notwithstanding the charter, or any article, clause or condition therein contained, to the contrary; and not-ance thereof, in the whole or in any part, should withstanding any caution or advertisement, that in his argument he gave to the king, or bis reflection that he made upon his counsel, either fortheir ignorance or hasty inadvertency in the passing of that grant. And I am the rather induced to be of that persuasion, for that the most learned of our profession, whose opinions have been quoted by him and others that have argued on the defendant's side, were then of the king's counsel, and were privy to, and advised both these letters patent, and all others of the like nature, that have been granted for these hundred years last past. I therefore think fit to say, that I believe Mr. Attorney-General, and the rest of the king's counsel, have discharged their duty as well to the king, by maintaining of this grant, as Mr. Williams has in this instance manifested his loyalty, by endeavouring to destroy it. In short therefore, as I said before, every clause in this charter is not to be maintained, and therefore is not to affect the question now to be determined. not be profitable to his majesty, his heirs and successors, or to this realm; that after three years warning by warrant, under the king's seal or sign manual, it should be made utterly void. So that it appearing that the king hath neither divested himself of the power, nor at the time of the grant did design to be prevented, to shew his inclination for the promoting of the advantage of his kingdom has given himself scope enough to obviate all those emergencies, Yet by the way I cannot but observe that Mr. Williams, to shew his dislike to a commonwealth, declared it to be absolutely opposite to the interest of a single person; but the single person he concerned himself for, was not the king and his prerogative, but his client the defendant, and his trade; who though I can. not in propriety of speech call a commonwealth, yet I cannot but think this opposition of his seems to proceed from a republican principle. For he by his interloping has been the first subject that within this kingdom, for near 5. Whereas it has been objected, that though an hundred years last past, hath in Westminupon the pleadings it is agreed, that the defend-ster hall publicly opposed himself against the ant never was a member of the East-India Company, nor had any licence from them to trade to the Indies, yet he might have a licence from the king; which, as I conceive, the king is not debarred to grant by any clause in the letters patent; yet I am of opinion, that if the defendant had any such licence, it ought to have been shewn on his part; which not being done, it ought to be taken by us, as I believe the truth of the fact is, the defendant never had any such licence. 6. It was observed, that the plaintiffs in their declaration had alledged, that this trade could -not be managed but per hujusmodi Corpus Corporatum;' and by this means they had excluded the king from constituting any more companies to trade within their limits, though perhaps the advantage of this kingdom might hereafter require it. Nay, though the Indians might desire a further treaty of commerce, or that the trade of these places might require more companies to be erected; yet say they, this grant hath made the plaintiffs a mere republic, and thereby has altered the constitution of England, in the management of trade by commonwealths, by placing it in companies, who (were they independent upon the crown) are truly so called. Yet in as much as I did before observe, that the king is not by this grant either excluded from making any new treaties with the Indians, or from making any corporations, or granting any other licences to any of the rest of his subjects, notwithstanding king's undoubted prerogative in the grant now before us: and I hope, by this example, the rest of his majesty's subjects will be deterred from the like disobedience. There were some other superfluous objections made against the clauses in the charter, and against the formality of the pleadings, which I think not necessary to remember; and therefore having thus premised, I shall now descend to those points I think only material in this cause. 1. The first and great point in this cause, is, whether this grant of the sole trade to the Indies, to the East-India Company, exclusive of all others, be a good grant in law or not? And I am of opinion it is. And by the way, I cannot but make the same remark in this case, as my lord chief-baron Fleming made in the great case of Bates in the Exchequer, Lane, f. 27, that it is a great grace and eminent act of condescension in the king to this defendant, that he does permit this great point of his prerogative to be disputed in Westminster-hall; but by this he does sufficiently signify to all his subjects, that he will persist in nothing, though it seem never so much for his advan tage, but according to the laws of the land. I shall therefore endeavour to make it appear, that he is invested with this prerogative by the law of this nation: but by the law I do not only mean the customary common law or statutes of this realm, which are native and peculiar to this nation, which, as Mr. Attorney well observed, are not adapted to this purpose; but such other laws also as be common to other nations, as well as ours, and have been received and used time out of mind, by the king and people of England in divers cases, and by such ancient usage are become the laws of England in those cases; namely, the general laws of nations, the law-merchant, the imperial or civil law; every of which laws, so far forth as the same have been received and used in England time out of mind, may be properly said to be laws of England. And for the better communicating my thoughts upon this subject, I will proceed by these steps: 1. I will very briefly consider of the inland trade within this kingdom, and the foreign | trade with other nations; and therein observe, that the king's prerogative is concerned in both, and that there is a great difference between both, allowed by the municipal laws of this kingdom. 2. I shall shew that the liberty of foreign trade may be restrained. 3. That foreign trade and commerce being introduced by the law of nations, ought to be governed and judged according to those laws. 4. That by the laws of nations, the regulation and restraint of trade and commerce is reckoned inter Juris Regalia; i. e. the prerogative of the supreme magistrate. 5. That though by the laws of this land, and by the laws of all other nations, monopolies are prohibited, yet societies to trade, such as the plaintiffs, to certain places exclusive of others, are no monopolies by the laws of this land, but are allowed to be erected both here, and in other countries, and are strengthened by the usage and practice of both in all times. 6. I shall shew the authorities that are extant in our books, together with precedents, and reasons both public and politic; for, as my lord Fleming says, that such reasons are good directions for our judgment in such cases as these, being demonstrations of the course of antiquity; and therein also observe the necessity and advantage of such societies, and by the way endeavour to answer the several acts of parliament, precedents and authorities, with all other the objections that have been made against my conclusion. First, then, to consider the difference between the inland and the foreign trade allowed of in our books, and that the king's prerogative doth affect both. As to manufactures, under which all sorts of artificers are concerned, I think they remain with the most liberty by the common law; and as Mr. Attorney observed, the public weal is little concerned therein, only to preserve every one in the quiet enjoyment of the fruits of his own labour and industry, yet even in that the king's prerogative hath not been totally excluded: for as it is taken notice of in our books, all things that are at this day enjoyed by custom or prescription, bad their commencement by royal grant; and by that means no artificer within the city of London can at this day use two trades; i. e. a carpen ter cannot use the trade of a joiner, or a bricklayer of a plaisterer. 2. As to the trade of merchandize or inland commerce, generally speaking, it had the next freedom by the common law, but was subject nevertheless to be limited or restrained by the king's prerogative in several particulars; as for instance, to prevent all forestalling and ingrossing. So Mr. Attorney did well observe, that numbers of people could not meet to traffic or merchandize, without being in danger of being punished as unlawful assemblies: the crown therefore granted the liberties of fairs and markets, for the sake of commerce and trade; all which did originally proceed from the crown, and therefore by abusing those liberties may still be forfeited to the crown; and passing by all other instances, I shall only instance one taken notice of in our books, which well considered may go a great way in the case at the bar. Register, fol. 107, the king grants to the abbot of Westminster and his successors, that they should hold a fair at Westminster thirty odd days together, with a prohibition that no man should buy or sell within seven miles of that fair during that time; and the king does there command the sheriffs of London by his writ to seize the body of an inhabitant of Salisbury, for selling cloths in London within the time of the fair. Now here is a charter granted to a particular person exclusive of others, for a time subject to more objections than the charter now in question, yet approved of by our books. Hence it came that corporations were erected, and trade confined to places and persons exclusive of others, for all such came originally from the crown: and as I said before in the case of fairs, so I may now say in the case of corporations, that though they claim liberties and privileges by prescription, yet these originally proceeded from the crown, and are therefore forfeitable to the crown an eminent instance hereof is that case of the city of London, for abusing their liberties, which they claimed by prescription, confirmed by divers charters and acts of parliament; by judgment of this court, their liberties and franchises were seized into the king's hands, and therefore remain as a vill to all intents and purposes, till his majesty shall be pleased of his bounty to restore them. Now that the inland traffic is most concerned, either in corporations, markets, or fairs, which all proceed from the crown, does plainly evince that the king's prerogative has a more immediate influence over dealings in merchandizes, than it has over other mechanic crafts and mysteries: and that, as Mr. Attorney did well observe, to prevent frauds, deceits, and other abuses either in weight, measures, or other. wise, which would certainly interrupt such commerce. But our law goes yet a step further, and allows further difference between inland merchandize and foreign, and allows a different way of determining controversies that arise thereupon; the common law and statutes of this realm, allowing the law-merchant, which is part of the law of nations, should decide such controversies. Decimo tertio H. 4, fol. 19, a complaint made to the king and council of some goods taken away from a merchant; it was moved in that case, that the matter might be determined at the common law: but the lord-chancellor said, that the suit being brought by a merchant, who is not bound to sue according to the common law, to have his cause tried by twelve men, and to observe the other solemnities of our law; but shall sue in Chancery according to the law of nature, which is the universal law of the world. And it is in that case agreed by all the judges, that if foreign merchandize were stolen or waifed, they could not be seized, as other English merchandizes might be by the rule of the common law, as waifs and strays: which shews plainly there is a difference in the consideration of our law, between foreign merchandizes that cross the seas, and other inland goods and commodities. If two merchants be partners in merchandizes, one shall have an action of accompt against the other, secundum Legem Mercatoriam, says the Register, fol. 135, and F. N. B. 117, D. And yet by the rule of the common law, if two men be jointly possessed of other goods, which are no merchandize, the one cannot bring an action of account against the other; if one of the merchants die, the executor may bring his account against the survivor for his moiety, Reg. 135, F. N. B. 177. But if it were a copartnership for other goods, it would survive per jus accrescendi,' according to the rules of the common law. the statute vicesimo septim. Ed. 3. cap. 2. amongst other things it is enacted, 'That for 'merchandizes taken away, the party shall be 'arrested, and speedy and ready process shall be against him from day to day, and from hour to hour, according to the law-merchant, and not at the common law.' So the statute for erecting the court of insurance, designed for the speedy ease of merchants, has left the determination according to the law of merchants; and therefore hath ordered the judge of the admiralty court always to preside in those commissions. By all which I think I may fairly conclude, there is a great difference allowed of, between the inland and foreign commerce, and that. 2. I shall endeavour to prove, that the liberty of foreign trade may be restrained. And here I must premise, that as at first all things were promiscuously common and undivided to all, so the free exercise of this universal right, was then instead of property; but as soon as the number of men increased, and they found by experience the inconveniency of holding all things in common, things were reduced into property by agreement and compact; either express, as by partition; or implied, by premier occupancy.' After this government was established, and laws were made, even for the ordering those things to which no man had any right; as for example, deserts, places uninhabited, islands in the seas, wild beasts, fishes, and birds; the former were usually gained and disposed of by him that had the sovereignty over the people; the latter, by him that had the dominion over the lands and waters, who might forbid others from hunting, fishing, &c. In an action of debt upon a simple contract, the defendant may wage his law; but it is otherwise in a contract about merchandize, in And in virtue of this universal law, his ma Lane's reports, Bates case agreed, Reg. 260.jesty and his predecessors have always disA. at common law, the goods of ecclesiastical persons were excused from toll; but says the writ, Dum tamen merchandizas aliquas non exercitat de iisdem.' It shews, that then they fall under another consideration. If one man wrongs another man of his goods, here an action of trespass will lie: But if a merchant's goods be taken upon or beyond the seas, there must be a writ of reprizal to obtain satisfaction; the Parl. Roll. 3 Ed. 1. M. 19. in Archivi Turris Londini, where the bailiffs of Southampton are commanded by writ, quod ' omnes Mercatores Leodienses ad partes • Angliæ accidentes per bona & catella sua 'distringantur secundum Legem Mercatoriam ' et consuetudinem regni, ad satisfaciendum • Mercatoribus Florentinis, &c.' Where, by the way, observe, that Ler Mercatoria, which differs from the ordinary common law, is said to be Consuetudo regni Angliæ; by which we may observe, that foreign merchandizes and trades differ from others in the eye of law, even by the allowance of common law itself. Several acts of parliament have been also made for the more speedy recovery of debts contracted for merchandizes, as the statute of Acton Burnel, the statute de Mercatoribus, and posed of the several plantations abroad, that have been discovered or gained by any of their subjects, and may do for the future, in case any other be discovered and acquired. For though the laws of nations can command nothing which the law of nature forbids, yet they may bound and circumscribe that which the law of nature leaves free, and forbid that which naturally may be lawful. Now to apply this to our present purpose of trade and commerce, Mr. Williams quoted that common saying, Commercia debent esse libera;' from whence he infers, that by the law of nature and nations, the sea and trade, and traffic ought to be as free as the air and for that he has cited Grotius de Jure Belli ac. Pacis, cap. 3. Welwood's Abridgm, of the sea-laws, in his epistle to the lord Admiral; Grotius de Mari libero,' where he says, ' Mare & Littora Maris Jure Gentium ⚫ sunt communia. Britton, cap. 33. De pur. 'chas. le mere & le air sunt thores Common; Sir John Burrough his sovereignty of the 'seas; Baldus de rerum Dominis. But I think none of those books can warrant his conclusion; for surely that expression. Commer : cia sunt libera,' cannot possibly be understood in such a literal sense, That every man in |