liament mentioned, ordered the merchandizes of the staple; so all other foreign trade not taken notice of by acts of parliament, were begun and absolutely disposed of by the king's prerogative; for as my lord Coke, in his comment upon Mag. Chart. c. 30, does truly ob serve, that by Mercatores there, only is meant merchant-strangers; for as I said, I do not find that any of the subjects of this king meddled in foreign trade, in many years after the making of that act: the first instance I meet with, is in Malin's Lex Mercatoria, fol. 150, of the society of merchants, which is the staples-adventurers, made by a grant from king Ed. 3, and were called the brotherhood of St. Thomas-à-Becket of Canterbury, until the time of Hen. 7, who confirmed their charter, but changed their name to that of Merchantadventurers, by which name they continued a corporation.

And that the king did shut and open foreign trade at his pleasure, by many instances mentioned by Mr. Attorney and Mr. Solicitor, does farther appear, 33 H. 3, mem. 1, 2 E. 3, pars secunda, memb. 35, 3 H. 3, N. 33, Rolis Prerogative 170 and 214, before cited, primo H. 5, 41, decimo-octavo H. 6, N. 60, and the Stat. of 12 H. 7, c. 6, which I have caused to be searched. And in Plowden's Commentaries, in the great case of Mines Royal it is set down as a rule, that ancient charters and grants of the crown, are the best evidences of the prerogative. Phil. and Mary erected the corporation of Russia merchants, by charter, with a prohibition to others, with the like conditions within mentioned in the charter at the bar; and was afterwards approved of in parliament in 8 Eliz. and the forfeiture mentioned in the letters patent made more effectual. And as Mr. Attorney did truly observe, that when Calais was taken, and thereby the staples unsettled, queen Elizabeth thought, according to the precedent of the Russia and other compapies, it was most advantageous for the carrying on of trade and foreign commerce, to erect societies and corporations; which was well approved of in those times, and so has continued ever since undisturbed, until this present question; which I shall more particularly insist upon, when I come to discourse of the next head. And here by the way, I shall only remember, that there were many records and books cited by the counsel at the bar, to prove the difference between alien enemies, and alien amies; and how these infidels are in law looked upon as perpetual enemies, and the many cases that were cited about the Jews, and others, I think will not be necessary to be farther insisted upon; for I conceive they do not concern the question that is now before us. For were not the charter now in question in being, it would be worth while for Mr. Sandys to consider, how far he might be obnoxious to punishment, for trading with infidels, who are in law called perpetui inimici.' And therefore I conceive, it is as penal for any of the king's subjects to trade with infidels, who are alien

enemies, without a royal licence, as it is to trade with aliens amies, contrary to a royal prohibition. And I cannot conjecture how he will avoid this rock, notwithstanding his pretended skill in navigation, without making use of this charter as a safe-conduct to him, by implication; though he seems here so much to struggle against it: and how far that would prevail for his benefit, may be also considered. But as I said before,

4. The true question is, Whether this be a good grant to the plaintiffs, of a sole trade to the Indies, were the inhabitants thereof Christians or infidels, exclusive of others ?

And therefore I proceed to the next step, that though unlawful engrossing, and monopolies, are prohibited by the laws of this, and all other nations; yet I do conceive, that the charter now in question, of a sole trade exclusive of others, is no such unlawful engrossing, or monopoly, but is supported and encouraged, as conducing to public benefit by the law, practice, and usage of this and other countries. And herein, by the way, though the word Monopoly, or Engrossing, generally spoken of is odious in the eye of our law, yet some engrossings, and so some monopolies, are allowed of in our books; and so I desire to be understood, when I say a lawful or unlawful monopoly, or a lawful or unlawful engrossing. And in as much as this is the great, and as I think, the only objection that either hath, or can be made against the present charter, I shall be the more particular in giving my opinion therein, with the reasons and authorities that have induced me thereunto.

I premise only this, that in all those countries, where societies of trade are erected by the supreme power, exclusive of all others, as the case at the bar, monopolies are forbidden; and are as severely punished by their laws, as they can be by the common and statute laws of England, (viz.) in Holland, Germany, France and Spain, &c.

And so wherever the civil law prevails, monopolies are punished with confiscation of goods, and banishment. C. de Monopoliis et Cens. forens. part 1, fol. 497.

Now though monopolies are forbidden, yet that cannot be understood to be so universally true, (as no general law can ever be) that it should in no respect, and upon no occasion or emergency whatsoever, admit of any exception or limitation.

The exceptions thereof may be such as these:

1. Though no private persons can have the sole trade to themselves, by their own private authority, yet this may be granted to a public society, by the prerogative of the prince; if, 2. It be upon good cause, and for the public advantage of the kingdom.

3. From the necessity of beginning and carrying on such trades and foreign commerce, which can be only done by companies and societies.

4. Such companies and societies ought to be continued and supported upon the natural

magnos requirunt sumptus, & ancipiti eventui | ⚫ initio sunt obnoxia; ergo authoribus talium ⚫ commerciorum cavendum est, ne quod ab ⚫ipsis constitutum magno cum periculo, & 'sumptu sunt, alii gratis intercipiant.

2. Ac præterea ejusmodi Societates privilegiate opibus suis Reipub. exigente necessitate, felicius possunt quam singula suc⚫ currere.

3. Videntur etiam meliori fide commercia tractari, ac majorem copiam mercium hoc modo posse advehi, neque de tot fraudibus et compendiis cogitare necessum habent quorum ⚫ lucrum in commune velut ærarium redactum equalibus portionibus distribuitur. Puffendorff de Jure Nature & Gentium. lib. 5. fol. ♦ 655.'

A learned author does more at large describe it.

It has been a question sometimes debated, whether the society entered into by the Hans Towns were not against law? Quippe quod speciem Monopoli præ se ferre videtur, ut 'certis locis merces emant confederati quæ 'rursus pretio eo, quo volunt, vendant.'

This is the same objection now made against the charter at the bar.

But the answer given was twofold, and will come home to this case.

1. That the emperor Charles 4. has given his approbation, and made it lawful by his authority.

2. That they had continued in possession of this society so long, that now the length of time (together with the prince's consent) removed all doubt whatsoever; Carpzovius de lege Regia Germanorum, cap. 6. sect. 10. And the charter now in question, and other ebarters of like nature granted by the kings of England, which I shall have occasion to remember by-and-bye, remain undisturbed without the least interruption, as long as this society did before this question was stated.

And though, according to the rules of our Jaws, such a length of time does not obtain the credit of a prescription; yet by the law of nations, and the practices of all other countries which are only adapted for this purpose, it is otherwise. Præscriptio enim tam longi tem'poris vim legis obtinet, imo tollit omne 'vitium.'

Præscriptio temporis immemorialis, quæ ⚫ privilegiata est et ex vitioso etiam titulo dominium et jus tribuit, omnesque solemni⚫tates, etiam extrinsecus, negotio accessisse, * præsumit tanti temporis antiquitas, num. 10. n. Atque omnem Monopolii respectum consuetudo immemorialis vel Cæsarum appro❝ batio excludit, n. 10. 26.

Quia consuetudo immemorialis Cæsarum 'scitu et concessu,hæc antiqua societas fulcitur, omnis Monopolii respectus etiam minimus læserat.' Marg. lib. 4. cap. 7. n. 50.

And as these Hans Towns were one of the first corporations of trade I have read of, so was it thought the interest of England to support and encourage them. I find above sixty

(some say eighty) towns and cities united their stocks, making Lubeck, Brunswick, Dantzic, and Cullen, the chief places of their residence; and so great was their trade and credit under that constitution, that many princes granted them large privileges, and they kept courts by their deputies and councils at Bergen.

By the laws of Spain, all monopolies are forbidden and under the same penalties appointed by the civil law: yet there also a right may be acquired to a sole trade, by licence obtained from the king, or by prescription.

Quinta partida Tit. 7. leg. 2. membris hoc Commercium Maritimum exclusis cæteris ad 20. annos concederetur. Neque ulla re se magis prodidit Imperii odium Batavicæ nostris diebus, (Deo ita volente) constituti magnitudo 'et felicitas, quam Navigationum in Indias 'Orientales susciptarum constantia et successus, ad quas ut ærario parceretur, societates institute, cautumque tandem, ut sub unam societatem omnes coirent, quod alioque experimento constitisset, Aromatum pretia ab insularis ob emptorum frequentiam augeri, et cum alii aliis prævertere, et lucrum ad se aliorum damno derivare satagerent, ubi concordia max'ima est opus, æmulationum et dissidii semina spargi.'

I come in the next place to make it appear, that as the law of nations, and the practice of all other countries, warrants the like grants and restrictions with the case' at the bar; so I conceive this charter of sole trade to the Indies, excluding others, is neither opposed by the common law, or prohibited by any act of parliament; but is supported by both, as will more evidently appear by the practice and constant usage in all times.

Therefore, though ingrossing be a crime, odious in the law, and punishable, yet all manner of ingrossing is not.

Therefore in the case of foreign trade, which is only applicable to the case at the bar; it was resolved by all the judges of England, S Instit. 196. That merchants may buy beyond sea in gross, and sell here again in gross also. Isay, that all monopolies are not unlawful. Generally speaking they are, and therefore, I will admit the description of an unlawful monopoly made by my lord Coke, 3 Instit. 181.

A monopoly is an institution or allowance by the king, by his grant, commission, or otherwise, to any person or persons, bodies politic, or corporate, of, or for the sole buying, selling, making, or using any thing; whereby any person or persons, body politic or corporate, are sought to be restrained of any freedom or liberty they had before, or hindered in their lawful trade.

Now if the subjects of England had not, before this grant, a freedom and liberty to trade to the Indies, against the king's royal pleasure, the charter at the bar will be no monopoly within that rule.

Now that they had no such liberty, hath been sufficiently proved by the several prohibitions mentioned before; and the many

they should absent themselves out of the United Provinces, yet the sentence shall go on, and be decreed and executed, with the present confiscation and selling of their goods, actions, and credits.

Idem, page 158. And surely the Dutch have been always by us esteemed as our greatest and most dangerous rivals in trade.

And as for the reason and necessity of establishing this way of trading by companies, see the judgment of Thuanus, lib. Hist. 124 and 130, where making mention of the East-Indies, he saith thus: Diversis itineribus hujus Regionis Incolarumque Ingeniis cognitis tanta 'frequentiâ à privatis hæc ipsa Navigatio et Commercium exercitum fuit, ut alter alterum 'fere ivisset perditum. Ad obviandum itaque huic malo visum fuit, An. 1602. quibusdam hujus Navigationis mercatoribus, præpotentum ordinum consensu certum constituere 'corpus, cujus tantummodo, &c.'

The Indians being infidels are by law esteemed common enemies; and the opinion of my lord Coke in Michelborne's case, I think, therefore, to be law, notwithstanding the objections that have been made against it, which none of our books warrant; now the king by his charter makes the plaintiffs as it were his ambassadors to concert a peace, and Mr. Sandys marmurs because he is not one of them.

The king may grant a fair or market to every subject he has; but because he grants that privilege to some of his subjects, have the rest any just ground of complaint? because the king may pardon every offender, but will not pardon any highwayman now in Newgate, must those gaol-birds, therefore, think themselves injured in their liberty and property? because the king granted to his town of Hull, that no other ships should be there freighted for foreign parts, till the ships of that town were first freighted; as he did, Rot. Claus. 41 E. 3, memb. 25. did London, Dover, or any other town of trade complain? Would any of these gentlemen that contend for this liberty of trade, adventure with their fortunes to Algiers, and when they are seized upon by the Algerines, tell them we are Englishmen, and we have by the common law of England, and many statutes of our kingdom, which support the liberty of the subject, a freedom to trade wherever we please? Or would not they rather say, we have a pass from the king of England, and rely upon that, which presumes treaties, leagues, and truces between princes; and in case that will not prevail, the king will see them righted? And in the charter that is now before us, there is a particular restriction and limitation of trade to any prince in amity with our king. Now as the constant usage and practice of other countries warrants such societies as these, so does ours too: For, as I said, the Hans towns were some of the first corporations of trade that we read of in history; so was it thought the interest of England to support and encourage them.

King H. 3, gave them great privileges, and

VOL. X.

| the Still-yards for their residence, which they enjoyed near 300 years, managing their trade by an alderman and counsel, called The Guild of the Hans, ingrossing the trade of England for grain, cables, masts, pitch, tar, &c. and under that colour the Jacobsons at this day claim several privileges.

It is observed by many historians, that the most flourishing trades have been begun by united stocks and policies,

In this kingdom a patent was first obtained for the erecting the staple, from E. 3, before any act of parliament intermeddled in that trade, and proceeded under several regulations till the time of queen Elizabeth. In the book I cited before, Malyn's Lex Mercatoria, fol. 150. says, This company of merchants are above 400 years standing, as that book reckons from 1248, when the said merchants obtained privileges of John duke of Brabant, and were called the brotherhood of St. Thomas Becket of Canterbury which were confirmed by king E. 3, H. 4, H. 5, H. 6, E. 4, R. 3, H. 7, who gave them the name of Merchant-Adventurers; and after him confirmed by H. 8, E. 6, Q. M. Q. Eliz. and king James, not without many enemies and opposers; especially, says that book, of late taxing them to be monopolies, and unprofitable to the commonwealth, being that all our cloths are not dressed and dyed in England; yet it still prevailed, as being thought for the public good.

And it is observable, that queen Elizabeth did not only confirm what was done by her predecessors, but augmented and greatly enlarged the privileges of this ancient company; and confirmed the charter of the Muscovy company, granted by Philip and Mary; and set up several other companies, as that of Exeter, mentioned at the bar; the East-India company, and the Levant and the Eastland company. And although that ancient and bene. ficial company of staplers was often opposed by particular persons, and complained of as a monopoly intrenching upon the liberty of the subject, in several parliaments, in the time of H. 4, H. 7, E. 6, and queen Mary: yet all parties being heard, these complaints were fully answered, and the Company's privileges ratified and enlarged.

Again, in queen Elizabeth's time, the clothiers having prevailed against the company, the clothing countries were almost quickly ruined, and reduced to that extremity, that in 29 Eliz. the lords of the council sent for the members of that Company, desiring them to reassume their privileges, and chearfully to proceed in their society; with assurance of all countenance and assistance from the government. And in the reign of king James, after several interlopers had endeavoured to destroy the Company, the king published his proclamation to restore the Company to its ancient privileges.

So did king Charles 1, 7th Dec. 1634, reciting, Whereas we have taken into our 'princely consideration the manifold benefits that redound to this kingdom; and finding

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