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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.

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them out again, by his proclamation or order of prerogative, as to safe conducts, it doth appear.
council; of which there is no king's reign Sydertin. fol. 441. it is said, that the king by
without many instances. And the statute of the common law, might prohibit the importa-
Mag. Chart. C. 30. so much insisted on by the tion of foreign goods; and whoever acted against
defendant's counsel, is but a general sate-con- such prohibition, forfeited his ship.
duct ; ' Omnes Mercatores nisi publicè ante The king might prohibit any of his subjects

prohibiti fuerint, habeant salvum et securum from going beyond the seas at pleasure, and
conductum, &c. Where by the bye I must recall them again as he thought it; and that,
observe, that Mercatores, says my lord Coke, in as I have said before, without giving any rea-
bis comment upon the chapter, is only intended son. The books of Fitzherbert's N. B. and
of merchant-strangers; for I cannot find, that Register, before recited, make this evident.
in those days any of the subjects of this king- Mr. Attorney indeed cited many instances
dom did apply themselves to foreign trade; or wherein the kings had made use of their pre-
at least the trade was not so considerable, as to rogatives, as 7 Ed. 2. M. 10. Quadragesimo
be taken notice of in any book of record that I Ed. 3. M. 24. stat. 5 R. cap. 2. which confirms
can meet with. And hefore the making of that it, 3 Instit. 179. Vicesimo quinto Ed. 3. M. 10.
statute, my lord Coke, 2 Inst. fol. 57. does with many more*; and indeed I think it was
agree, that the king might, and did prohibit not denied, but that after a probibition, it was
strangers at his pleasure : hut he conceives, an offence admitted of by the defendant's coun.
and, with great respect be it spoken to his me- sel for any subjects to go beyond the seas, Dy.
mory, I think without any colour of reason, 165 and 296. agrees it.
would make these words, "nisi publicè probi-

And that is sufficient for the present purpose,
beantur,' to intend only a prohibition by par- there being a prohibition in the charter in
liament; and his reason is, for that it conceros question, to all persons that are not there men-
the whole realm. Now did the coming in of tioned. What influence the king's prero-
strangers concern the realm after making of gative must necessarily have upon foreign
the act, more than it did before ? surely no. trade and commerce, appears by his freqnent
Doth not the power of making war and peace, granting letters of mart and reprisal: These
absolutely belong to the king by his preroga- are not allowed of by the law of nature, civil or
tive? And is not that of public concern to the common law; for thereby no man is bound by
kingdom? And is not the prohibition of strangers another's act, without bis consent, but by the
a natural dependant upon that prerogative? If general consent of nations, ' bumana necessi-
the word publicè there had been out, there had tate exigente.' The king only has the power
been no colour for that conceit; and surely the of making leagues and truces with foreign
king's proclamation will make the matter as princes, upon which only all foreign trade does
public as an act of parliament can do: nay, and depend; and those leagues are made upon such
I may say more, for acts of parliameni anci- terms and conditions, and under such limita-
ently were made public by proclamation; for tions, as both princes think fit: Many instances
in our books we have many instances of writs to this purpose were also cited by Mr. Attor-
directed to sheriffs of counties, to cause acts of ney, to which I refer myself; and the differ-
parliament to be publisbed by proclamation ; ences that arise from merchants beyond the
and so was the constant and ancient usage. seas, are to be determined according to those
And is it not more natural for strangers that leagues, and cannot be decided by the munici-
are abroad, to take notice of the king's public pal laws of this realm, which cannot be put in
edicts, which are known to be of great import. execution in foreign parts.
ance in all countries, more than they would of Fourthly, The king is absolutely master of
an act of parliament that affects the king's own war and peace ; which he could not be, in case
dominions only? Besides, it appears inore im- he had not a power to lay restraint upon bis
pertinent, if you turn those words into a Pro- own subjects in relation to foreign commerce;
viso; and then it will amount to no more in since eo ipso, that war is proclaimed, all public
plain English than this, provided that this commerce is prohibited : and the counsel that
• law shall continne, except it be hereafter re- argued for the defendant, admitted, That the

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.

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maintaining ambassadors and envoys in all the jected and presumed, that the king will pardon
trading parts of the world, without which we all the traitors, murderers and robbers, and
should be in a perpetual state of war? would it other felons, and make use of his prerogative
not be monstrous, that when the king is entered to let all malefactors escape ?
into league with any sovereign prince, in a The king is the fountain of honour, as well
matter of trade very advantageous to his people, as of justice, and in virtue of that prerogative,
to bave it in the power of any one of his sub- may ennoble as many of his subjects as he
jects to destroy it? As for instance, suppose a pleases; and thereby exempt them from ar-
league between our king and the emperor of rests, and other common processes of the law,
Morocco, for a trade to Tangier, were made by means whereof men do more speedily're-
upon condition, That no English ship coming cover their just debts, and have redress for inju-
there for commerce, should be above a hundred ries. Is it therefore to be presumed the king
ton, and a fleet of merchant ships within that will make such a glut of noblemen, because he
condition, were in port at Tangier ; and Mr. may do it? And as this is against his inclina.
Sandys, with the same obstinacy as he seems tion, so certainly it is against his interest, to
to appear in this case, should have gone with a nake such grants as the defendant's counsel
ship of above a hundred ton to Tangier ; that seem to fear; for it is more for the king's be-
would have been an absolate breach of the nefit than it can be for bis subjects, the greater
Jeague; we should have been immediately in a the importation of foreigo commodities is ; for
state of war, the merchant-ships and goods from thence arise his customs and impositions,
absolutely forfeited to the emperor by the law those necessary supports of the crowd: and
of nations, and they and their families thereby therefore, in some sense, the king is the only
undone, without any remedy, till Mr. Sandys person truly concerned in this question; for
should be pleased to return into England; and this island supported its inhabitants in many
also bring with him an estate sufficient to make ages without any foreign trade at all, having
them a recompence: and then also perhaps it is it all thing's necessary for the life of man.

be an "
our law, to compel Mr. Sandys to do it. Be- cis,' says the poet. And truly, I think, if at
sides, the king has no other way, if his ambas- this day most of the East-India commodities
sadors and ministers in foreign parts cannot were absolutely probibited, though it might be
prevail that right should be done to bis sub- injurious as to the profit of some few traders, it
jects; or if Mr. Sandy's interloping ship, and would not be so to the general of the inhabi-
all its cargo, had been wrongfully taken away tants of this realm. And therefore, as I have
from him by any foreign prince, but by the offered these few instances to prove the king
king's declaring of a war, and compelling them should have such a prerogative; in the next
to make restitution by force; the consequence place I come to shew, that the kings of Eng-
whereof will affect more than foreign traders, land have exercised this their prerogative in
who would be then concerned, both in their all ages: and as the king has the power of
persons and purses; and it would be very hard restraint of the foreign trade, so he is only judge
for all the king's subjects to lie under the bur- when it is proper to use that power, which
then and charge, and the profits and advan- seems plainly to be for the same reason.

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
of the remote parts of the world, should be told, much brevity as I can, only in producing some
That Mr. Sandys, one of the king of Great few of those many instances, which were with
Britaio s subjects, came into the emperor's great care and industry found out by Mr.
territories against his prince's consent, and that Attorney, and Mr. Solicitor; and by them so
he liad no power to hinder him, unless he learnedly and properly applied to the case in
would consult with all his nobles, and the question.
representatives of all bis common subjects, to 1. Therefore it has been well observed, that
assist iberein? Would not the emperor believe the staples, which were the common and
Sandys to be the greater prince of the two? public marts for all merchants to resort to,
But though such sort of declamations are so were first erected by the king's prerogative,
much for the service of the crown, and for the without any act of parliament; as it doth plain-
honour of the kingdom, as they would have ly appear by the several acts of parliament
it believed; yet I tbink they have the same mentioned at the bar, either for setting the
tendency of duty and service to the king, with places, or enlarging the coromodities that were
some other matters that of late bave happened permitted to be brought to the staple; for surely
amongst us, viz. Some have been so concern- in all times, when the staple was fixed in the
ed, as well for the safety and security of his dominions of any other prince, that must be
majesty's sacred person, and to make him for- done by league, which none can make but the
midable to his rebellious subjects at home, as king. To instance one authority for all, the
to desire that his guards might be discharged, Stat. 2 Ed. 3, cap. 9. expressly says, ' It is
because it looked as though he designed to rule enacted, That the staples beyond the seas,
by a standing army; and to shew their ten- and on this side, ordained by kings in time
derness to his sacred life, would have him re- past, &c.' Mr. Attorney and Mr. Solicitor
moved from the assistance of cvil counsellors cited several records, and other acts of parlia-
as they called them; and put himself into the ment, ihat allow this to be the king's preroga-
bands of assassinates, as though one murdered tive absolutely ; which I shall only name, they
prince were not sufficient to satisfy that piece having opened the particulars at large, viz.
of state-policy in one and the same age. Vicesimo E. 3, Plac: Parl. Rolls Abr. fol. 108.
And in order that he might have sufficient 130. Octavo. E. 3, num. 20. 27 E. 3, cap. 1.
to support the necessity, as well as the dig- 43 E. 3, c. 1. 47 E 3, N. 17 Prim. R. 2. N.
nity of a crown, which all good subjects are 93. with many more ; which did not only li-
zealous for; some, of late, have industri- cense merchants to repair to their several
ously endeavoured to have prevented him from staples, but probibited them from carrying their
being able to borrow any money upon the staple commodities to any other places, and the
credit of any part of his revenue, a privilege several acts of parliament made touching the
that the meanest of the persons concerned in staple, only inflicted greater forfeitures upon
that question would think themselves highly the persons offending, more than the king
injured to be debarred of.

by his prerogative did inflict; but neither
These and the likeattempts, if not prevented, added to, or diminished any part of the power
will render the king and his governinent low of the crown; the truth whereof will also
and despicable in all other parts of the world : farther appear by the consent of the parliament
and as for the instance between a denizen and plainly declared in several statutes following,
a man naturalized, I think it rather makes viz. 2 H. 5, c. 6. 2 H. 6. C. 4. 8 H. 6, c. 17 and
against, than for Mr. Williams's conclusion, as 27. by which, and several other instances,
to the main question. For though the king both by Mr. Solicitor and Mr. Attorney, I do
cannot naturalize a man, and thereby give him conceive it does plainly appear, tbat the statute
inheritable blood, as a natural-born subject, to of 2 Ed. 3, c. 9. Nono Ed. 3, c. 1, decim-
inherit lands; yet he may make an alien a quarto' Ed. 3, c. 2. the Stat. of decimo-
denizen ; and by that means he becomes to quinto' Ed. 3, mentioned in the defendant's
have, as much privilege as any of the king's plea, decimo 8 Ed. 3, c. 3. which the defend-
natural subjects bath as to trade and commerce, ant's counsel have much insisted on, for the
which is the only question now before us: and opening the liberty of trade only concerned
I cannot help being of opinion, that this king- merchants of the staples ; and by the acts of
dom was in greater regard abroad, and the in- parliaments made relating to that trade, since
habitants thereof more prosperous at liome particularly mentioned by Mr. Attorney, stand
when the prerogative of the crown was more now repealed.
absolute than now it is ; therefore it is our And though the place of the staple, as well
duty as good judges, as well as good subjects, as the commodities, were ascertained by acts of
to endeavour to support it as much as we can parliament, yet the king granted to merchants
by law. And so I proceed to mention some licences to trade elsew bere ; which prerogative
precedents and authorities, whereby the kings is allowed of by acts of parliaments, and other
of England have in all ages exercised this authorities in our books : for instance, amongst
part of tbeir prerogative, of restraining, dis- many others, the stat. 8 H. 6, 21, 22 Hen. 6,
posing and ordering matters of commerce and chap. 4. 15 Hen. 6, c. 3. 27 H. 6, c. 1. 1 H.
foreign trade, by royal licences, charters, and 7, fol. 3, A. 16 Ed. 4, fol. 3. l. 5 E. 4, 39.

And as the king, before those acts of par


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