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every nation should be at liberty to trade, it by the right of his prerogative; Plowden's either in what commodities, or to what place, Commentaries, in the case of Mines ; Coke 5. or at what time soever he shall think fit." For Sir Henry Constable's case; these things were I took it to be graoted by all that argued for vested in the king by bis prerogative by the the defendant, that trade and commerce most common law. Yet I cannot but observe, that be subject to some laws; and Grotius, in his the treatise of Mare Liberum, on which Mr. book. de Mari libero,' proposes this main design, Williams so much relies, was craftily writ, to to prove that any one nation has not power to overthrow the king's prerogative in that benehinder. another nation from free commerce ; ficial part thereof, relating to the fishing on the and that the Spaniards therefore had no right English coasts, and contains a plain proclato prohibit the Dutch from trading into such mation for all persons of any nation, indifferparts of the Indies, whereof the Spaniards ently to fish in all kinds of seas ; for says cap. were not possessed, upon pretence that they 5, fol. 10. Quæ autem navigationis eadein had the dominion of those seas : Internes & • Piscatus habenda est ratio, ut communis ma• Hispanos,' says he, bæc controversio est, • neat omnibus.' And herein though Mr. Wil' sitne immensum et vastum mare regni unius liams intends to make good the premises, I
nec maritimi a cessio ? Populone unquam jus presume that Mr. Pollexfen, that argued on sit volentes populos prohibere ne vendant, ne the same side, has a greater concern for his permutent, ne denique commeent inter sese.' friends in the West, than to join with him to And for the benefit of his countrymen he doth make good that conclusion. And before I go therefore assert, ó licere cuivis genti quamvis off from this point, I think it not amiss, the
alteram adire, cumque ea negotiare;' which better to clear the way to my conclusions, to taking that to be true, which by the law of give some instances wherein other nations, as dations is certainly otherwise, yet nothing can well as our own, have not only thought it legal, be inferred from thence, but only the question but necessary for their several public advané of commerce between one nation and another. tages, to put restrictions upon trade, and did not And how that was before leagues and treaties think it injurious to natural equity, and the freewere made, little may perhaps be found, as dom of mankind, so much discoursed of on the Mr. Attorney well observed, besides the laws other side. To give some few instances; Viof hospitality, which do not give any demand- demus Jura Commerciorum,' says Bodin de able right; but surely Grotius there hath no Repub. lib. 7. 'non solum omnibus populorum particular respect to particular subjects of this principumque inter se conventis, verum etiam or any other nation, how far the supreme singularum Statutis,' &c. And after he has power of any nation may erect a society of enumerated the compacts for trade between the trade to a certain place, and for certain com- Pope and the Venetians, between the citizens modities, exclusive of all other subjects of of ihe Hans towns, and the kings of England, their own.
France, and Spain, and several other countries; And that plainly appears, both from the Illi,' says he, inter se Commercium multis scope of his book, as also for that for several modis personarum, mercium, locorum, temyears, both before and at the time of publishing porum atque omni alia ratione coarctarunt.' that treatise, the Dutch East-India Company So is Marguardus, fol. 155, and Buchanan in was established ; which I shall have farther oc- his 7th book de Rebus Scotia ; and in all councasion to discourse of by-and-bye.
tries, the importation and exportation of some As for Welwood's Epistle, I have seldom ob. commodities are prohibited, as salt from France, served that epistles have been cited in West- horses from other countries, wool from hence. minster-ball as authorities : yet supposing it In whomsoever that power of restraint does reto be so, that all loyal subjects shall have their main, the power of licensing some, and repetitions granted to safety and security in their straining of others, surely does also remain by Irade ; I suppose Welwood little dreamt of in- parity of reason ; but of that more by-and-bye. terlopers, when he talked of loyal subjects; if And as Nr. Attorney did truly observe, upon it can be meant only of such who may trade perusal of the statutes that are now in print reby law, that is to beg the question in respect of lating to trade, the parliaments have in all ages the plaintiff and defendant. As to that of Brit- eren to this king's reign, since his restoration, ton, that the sea is common, it is answered by thought fit to make more laws to probibit fowhat hath been said before ; and Welwood, reign trade, than to increase it; as looking page 66, says, that by commune or publicum, upon it more advantageous to the common is meant a thing common for the use of any weal. And thus having observed that other one sort of people, according to that saying, nations, as well as we, have not only thought • Roma Communis' Patria est, but not for all it legal, but necessary, to make laws for the of all nations; Welwood, page 66. That pas- restraint of trade; and thereby ibought they sage of Burrough is only observed to prove did no injustice to the liberty of mankind : the king's prerogative within the four seas; 3. I proceed to the next step. I shall thereand though Mr. Williams would have insinu- fore, thirdly, endeavour to prove, that foreign ated, as if the sturgeons and other great fish, trade and commerce, being introduced by the and wrecks, and the like, had come to the king laws of nations, ought to be governed and adby the Stat. of 17 E. S,.c.2, that act was but judged according to those laws; and I do not declaration of the common law; for he had know of any statute or book of the common law now in print that doth oppose this asser- | navigation, leagues, truces, embassies; nay tion. Coke 3 Inst. fol. 181, in the margin, even in the case at the bar, the stopping of the cited by the defendants counsel at the bar: defendant's ship by an admiralty process, was
Commercium,' says he Jure Gentium esse lett, by the opinion of all this court, and afterdebet ;' nay, it is the express text of law,'ex wards by the courts of Common Pleas, and Jure Gentium Commercia sunt instituta : Exchequer, to be decided in the admiralty ; which being laid down as undeniably true, and and by virtue of a process out of that court, bis so admitted to be by the defendant's counsel ; ship is detained this day. And as I said, that I would inter from thence, since commerce and court proceeds according to the law of nations, traffic are founded upon the law of nations by and the matters before specified are not to be the natural reasons of things, all controversies controuled by the rules of the coipmon law. arising about the same, shall be determined And itcustoins make a law, then the custom by the same laws, especially where there is of nations is surely the law of nations; which no positive and express law in that country brings me to my next particular, which is the where such controversies do arise, to determnine main thing upon which this cause will turn. them by: and Mr. Williains seems to allow, Therefore, 4thly, I conceive, that both by that there are no such laws in this kingdom; the law of nations, and by the common law of for he thinks that the controversy now be- England, the regulation, restraint and govern-, fore us, is not to be decided but by parlia- ment of foreign trade and commerce, is reckment.
oned • inter Jura Regalia,' i. e. is in the power All other nations have governed themselves of the king: and it is his ondoubted preroga by this principle; and upon this ground uve, and is not abridged or controuled, by any stands the court of admiralty in this kingdom, act of parliament now in force. viz. That there might be uniform judgments This question is not concerning the consegiven there to all other nations in the word, in quences of this power, or any inconveniencies causes relating to commerce, navigation and that may happen thereupon, because upon inthe like. And in as much as the cominon and conveniences arising, the king is to be supplistatute laws of this realm are too strait and nar. cated to redress them: which I shall farther row to govern and decide differences arising take notice of, when I come to answer the par-> about foreign commerce, and can never be ticular objections made against this grant. thought to hear any sort of proportion to the * Commerciorum Jura sunt privilegiata, ac universal law of all nations, as the interests of non nisi iis concessa qui exercendorum Merall foreign trade do necessitate them to contend 'catorum licentiam principis indultu et authofor; it will become us that are judges in West-ritate meruerunt,' is the very express text of minster-hall
, for the better determining this the civil law; and so is Carpzovius, Const. n. case, to observe the methods used by our pre- 5. Bodinus de Republica, lib. 1. c. 7. says, decessors in determining such like causes, and • Quæ tametsi Jure Gentium esse videantur take notice of the law of nations.
prohibere, tametsi sæpe à Principibus videThe common law, by several authorities 1 : mus.' And in c. 6. quoted by Mr. Attorney, cited before, takes notice of the law-roerchant; That the laws of commerce are contained in and as the book of Ed. 1, before cited, says, it is the particular compacts and agreements of part of the law of nations, and leaves the de- princes and people. "So Salmasius, pag. 236. termination to be according to that law; the Mercatura est res indifferens, in qua Maseveral acts of parliament I before cited, make 'gistratus vel in vetando vel permittendo suam a particular provision, that matters of this na- pro Commodo Reipublicæ potest imponere ture should be determined according to the authoritatem.' So Carpzovius, & famous law-merchant, which is part of the law of German lawyer, in his decisions, lib. decis, nature and nations; and is universal, and one 105. N. 13, & 14. ' Exempla haud rara sunt, and the same in all countries in the world. And • ubi Privilegio et Edicto Principis commercia therefore Cicero speaking of this law, says, ad certas personas certave loca restringere "Non erit alia Lex Romæ, alia Athenis, alia videmus. These rules and principles, as
nunc, alia posthac; sed et inter omnes gentes serted to be the laws of nations, agree with the . et omni tempore una eademque lex obtinebit.' principles of our laws. Mr. Attorney, in his And I the rather thought myself obliged, more argument in this canse, cited many records and industriously to search into the law of nations, precedents to make good this assertion; which the better to enable me to give judgment in I think he did with great clearness. I therethis case; the consequence whereof will affect fore will content myself with as few of them as the king's subjects in all parts of the world; and I can ; and only remind you of such as I think I was minded thereof, particularly, by my lord absolutely necessary to make good my asser. chief baron Fleming, in the giving judgment tion, which I will do by these steps. I con of the great case of Bates, about the imposition ceive the king had an absolute power to forbid upon currants, Lane, fol. 27, and does not only foreigners, whether merchants or others, from affirm it as necessary, but the common prac- coming within his dominions, both in times of tices of all judges, in all ages.
war and in times of peace, according to his Do not we leave the determination of eccle- royal will and pleasure; and therefore gave siastical causes to be decided according to the safe-conducts to merchants strangers, to come ecclesiastical laws; foreign matters, matters of in, in all ages, and as his pleasure commanded, VOL. X.
them out again, by his proclamation or order of prerogative, as to safe conducts, it doth appear.
prohibiti fuerint, habeant salvum et securum from going beyond the seas at pleasure, and
And that is sufficient for the present purpose,
pealed;" which surely would be very ridi- king might prohibit his subjects to go or trade culous.
beyond the seas in cases of wars or plagues. Mr. Attorney and Mr. Solicitor both, in How strangely preposterous then would it be their arguments, quoted several records and for a man to imagine, that the king should have precedents, wbere the king, in all times after an absolute power of war and peace, and yet be the making of that act, did prohibit strangers denied the means to preserve the one, and prefrom coming in, and did command them out vent the other! Is not tbat therefore the great when they were here, at pleasure. I shall reason why the king is at so great expence in not trouble you with the repetition of the records, for they were many; pay, the king, * Rolls Abr. 2. fo. 214. The Commous when acts of parliament had prohibited, did pray leave to export and import foreign goods grant safe-conduct; and of that sort, in Rolls at their pleasure, except goods of the staple, Prerogative, 180. you will find several in- notwithstanding any proclamation to the constances; and in the several acts of parliament trary. Resp. Le Roy voet estre advise par son cited by Mr. Attorney, to confirm the king's Counsel.
maintaining ambassadors and envoys in all the jected and presumed, that the king will pardon
be an "
And tages accrue only to a few.” And here, by the I think Mr. Williams's remark of the difficulty way, I think it not improper to take notice of of this case, that it should necessitate the king an objection that was made by the defendant's to call a parliament to assist him with power to counsel, of the unreasonableness that the king determine this question, is not to be passed by should be entrusted with this prerogative: for without some observation. as well as he may restrain persons trading to God be praised, it is in the king's power to the Indies, he may also restrain them from call and dissolve parliaments, when and how trading into any other part of the world. The he pleases; and he is the only judge of these very objection seems to carry an unsavoury, as Ardua Regni, that he should think fit to conwell as unreasonable mistrust in a subject to his sult with the parliament about. And Mr. Wil prince. For as it is a maxim in our law, the liams would do well to save himself the trouble king cannot be presumed to do wrong; and 1 of advising the king of wbat things are fit for am sure the constant practice of our present him to consult with his parliament about, until king has not given us the least umbrage for such time as be be thereunto called. But it such diffidence; and I think I may truly say, bath been too much practised at this and other we are as safe by our prince's own natural in- bars in Westminster-hall
, of late years, to capclinations, as we can be by any law in this par- tivate the Lay-Gens, by lessening the power ticular. The king bas the absolute power of of the king, and advancing, I had almost said pardoning all offenders by his inherent prero- the prerogative of the people: and from hence gative, which an act of parliament cannot de- comes the many mischiefs to the king's subprive him of, the case of murder is a full in- jects in parts abroad, by making the power stance of that ; nor was that prerogative ever of the king thought so inconsiderable, as disputed in any age, though never so trouble though he were a mere duke of Venice, being some; saving in that single case of the earl of absolutely dependant upon his parliament, Danby, and that without any reason, that I Would it not be mightily for the honour aud eould ever hear of. Is it therefore to be ob- dignity of the crown of England, think ye, that
the emperor of Fez and Morocco, or any prince And herein I shall content myself with as
by his prerogative did inflict; but neither
And as the king, before those acts of par