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] STATE TRIALS, 36 CHARLES

Since this, it may be worth consideration, whether the breaking of this Company, has not occasioned the great decay of our trade in wool: it being agreeable to reason, that as no Jaw can be effectual without courts of justice to put them in execution; nor a straggling army subsist without discipline: so a straggling trade managed by particular persons, whilst every one strives to advance his own private interest, will ruin the trade in general, especially such a hazardous trade as this to the East-Indies, which already hath been so chargeable, and can only be prevented by the conduct and government of a public society: and surely to look after and settle these matters, properly belongs to the care and prudence of our governors.

much order and government will con'duce to the encrease and advancement of the learned men in our profession. In the beginthe perusal of her attorney and solicitor, 'same, we have thought fit, with the advice ning of her reign my lord chief-baron Weston of our privy-council,' &c. There he gives an establishment to the Company, and prohi-general, and passed those patents both to the was solicitor, sir Gilbert Gerrard attorneybits any to intrude upon their privileges, upon Russia and Exeter companies: 23 Eliz. my pain of such punishments as the Star-chamber lord chief-justice Popham was attorney, and sball inflict. time some few such charters were also granted. the lord-chancellor Egerton solicitor, in whose' like to this at the bar. And then my lord Coke Fleming solicitor-general, who approved therewas attorney-general, and my lord chief-baron of; and it is observable, that in the 43 and 44 of the queen, the parliament took notice of many patents of monopolies, as it appears by the book cited at the bar; Townsend's Collections, 244 and 245. The parliament seemed fore, and particularly were incensed by those to be as high as ever they were in any age beSecretary Cecil, that were thought grievous or patents. A list of all were brought in by Mr. prejudicial to the commonwealth; and though whom that of Darcy is one, yet the parliathere were a catalogue of forty or fifty, amongst charter granted to corporations, but they conment, nor none other, complained of any amiss to observe, that Darcy's patent was not tinued undisturbed. And by the way it is not immediately damned in parliament, but regreat reason that guided that judgment was, ferred to take its fate in Westminster-ball; the the restraint that was put upon the home trade; and so it appears in More's Reports, 672. And thus stood these charters; the China charter, the Turkey company, the Barbary company, the Guinea company, all charters of sole trade, excluding others, remained in trade during all queen Elizabeth's time.

Now I shall observe, how the practice has been both in queen Elizabeth's time, and ever since, and that although many charters like ours at the bar have been granted; and none ever demanded by a judgment in Westminsterhall, or so much as objected against, save only that of the Canary patent, till this cause at the bar and though several attempts have been made both in parliament, and in the courts at Westruinster-hall, against monopolies; yet this charter, and others of the like nature, were never looked upon under that character. For instance,

1. A charter was granted 2 Eliz. to the merchants of Exeter for the sole trade to first act made for opening a general trade to But in the third year of king James was the France, excluding all other merchants of Ex- Spain, Portugal, and France, to all the king's eter not of that company, continued undis- subjects; which could not be done in Westturbed, and prevailed against a great opposi-minster-hall, as appears by the preamble to tion that was inade against it in parliament. King Edward 6, and king Philip and Mary, having granted a charter like ours to the Russia company, which continued in peace till the eighth of queen Elizabeth; when the parliament taking notice of that patent, thought fit to confirm it with all the commendations imaginable; and was so far from thinking it a monopoly, that it says, the commonwealth before that time had received great advantages by it; and grants, and inflicts greater and other penalties than were or could be inflicted by the letters patent: and it is observable, that there were some interlopers upon that trade in thuse days, and had been liable to the forfeitures inflicted by those letters patent, and were therefore forced to apply themselves to that parliament, and did obtain a special proviso to excuse those forfeitures, which, had not that act of parliament been made, they had been liable to; which I take to be an authority fuli, as to the case at the bar.

Queen Elizabeth, during her reign, granted several charters of the like nature, which passed

that act; nor does that act call those charters
monopolies, or open a free trade to any other
parts of the world, but leaves all charters of
foreign trade, save to Spain, Portugal, and
France, to remain as they did before. And in
the 4th of Jac. cap. 9, there is notice taken
particularly of the charter granted to the Exe-
and because it was thought to be damned by
ter merchants of the sole trade to France;
the general words of that statute E. 3, yet it is
there enacted and declared, that the said sta-
tute of patents, neither did nor should dissolve,
aunihilate or impeach the said charter, or the
said company in any of their privileges, liber--
ties, or immunities, granted unto them by the
said charter, any thing contained in that ge-
neral act to the contrary notwithstanding;
things:
and from this act of parliament I observe two

charter to Exeter for sole trade to France, ex-
I. That the parliament thought that the
weal of that city.
clusive of others, was for the public benefit and

II: That the letters patent were good in

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saving sufficient to support those charters that were then in being, to corporations for trade and merchandize; but made particular provisos for the saving of patents for inland commodities, viz. such as salt, gunpowder, ordnance, shot, and the like.

law, and did not want the assistance of an act that the parliament then thought a general of parliament to support them; for that act, does not confirm those letters patent, but provides only, that the statute 3 Jac. should not by general words be thought to impeach or destroy them. Now had the parliament thought the charter void or infirm, they might have confirmed or strengthened it, as the Russia patent was; but they concluded, that had it not been for the statute of Tertio, the charter was good to all intents and purposes: and this I take to be full authority in the case at the bar. But to proceed, the Greenland patent for sole fishing, exclusive of others, granted by queen Elizabeth, is held good, Rolls, Part. 5, fol. 3. Taylors of Ipswich's case, and the case, of the abbot of Westminster, is agreed to be law; in Darcy's case, More, 673, by Mr. Justice Dodderidge: and by the way he gives good advice to all persons that dispute the king's prerogative; and for the friendship I bear to Mr. Sandys, and others that are now in court, and I think need the advice, I shall read the very words of the book: he that hews above his hands, chips will fall into his eyes; Et qui Majestatem scrutatur principis, oppri-to the East-India Company, and of the injumetur splendore ejus.'

In king James's time, many grants, like ours, were made, but particularly in 7 Jac. the patent granted to the East-India Company by queen Elizabeth, was, by the advice of her council, as well as by my lord Hobart, then attorney general, and sir Francis Bacon, solicitor-general, confirmed and allowed with the same clauses as the charter at the bar; and so remained undisturbed and uninterrupted all king James's reign, and was not thought to be any whit touched or aimed at by the proviso in the statute, 43 Eliz. cap. 1, sect. 9, that act only pointing at the monopoly patents complained of in that parliament of 43 of the queen, which I mentioned before. Then comes the statute so much insisted on by the defendant's counsel, commonly called the statute of monopolies, Stat. 21 Jac. cap. 3, which certainly doth not at all affect the case at the bar. For first, this charter is not a general grant for the sole buying, selling, making, using of any thing within this realm, which are the very words of the acts: nor does this charter give the East-India Company licence or toleration to do, use, or exercise any thing against the tenor or purport of any law or statute, which are the only things provided against by that act. But the parliament then seemed to take the same general care of all such charters as this at the bar, as the parliament did in 3 Jac. of that particular charter of Exeter; and therefore, to the end that those words in the beginning of this act of monopolies might not be thought to extend to charters, to corporations for trade, there is a proviso, sect. 9, that that act should not extend to any corporations, companies, or fellowships, &c. erected for the maintainance, enlargement, or ordering any trade or merchandize, but leaves the same as they were before that act, without any immutation: and it is observable,

So that this company was in full possession of their privilege of sole trade, exclusive of others, all king James's and king Charles 1st's time, till all the prerogatives of the crown were invaded, and the crowned head too was taken off by traitors and rebels. But the providence of God having restored us our king, and reinvested him with all his undoubted prerogatives, as well as restored us to our ancient rights and privileges, and scarce, as I may say, warm in his throne, but amongst the other consi derations that he had for the public weal of his subjects, he considers the public advantage of this kingdom arising by trade, and amongst them, one of his first thoughts are fixed upon this Company. For 3d of April, 1661, he by his letters patent taking notice of the charters of queen Elizabeth, and king James, granted

ries that were done to them by the late trou bles; with the advice of his council, and approbation of Mr. Attorney Palmer, and my lord-chancellor Finch, he granted and confirmed to them all their privileges. The 27th of May, in the 20th of his reign, lord-chancellor Finch being attorney, and my lordkeeper, that now is, solicitor, he confirms this charter; and grants to the East India Company other privileges, by another charter in the 28th year of his reign; at which time the Lord-Keeper was attorney, and sir William Jones, solicitor; he confirms the former, and grants more privileges: and in the 25th year of his reign, by the charter now in question, passed with the approbation of the present attorney and solicitor, men of great ability in their professions, and of whom, were they not present, I should say much more; the charter to this company was confirmed with additional privileges.

Nor has this charter passed only the approbation of his majesty and council, since his happy restoration, but the parliament has likewise taken notice of it; the statute 14 Car. 2, cap. 14, takes notice of it to be of great advantage to the public. The stat. of the 29th of this king for poll-money, taxes them with twenty shillings for every hundred pound in stock. In the great case between Skinner and the East-India Company, the House of Commons defended them, even to an eruption between the two houses.

Mr. Jenks and some other linnen-drapers and tradesmen of London, taking the advantage of the heats that too frequently possessed the House of Commons of late years, especially against the point of prerogative, did furiously attack the East-India Company, but without any success and this company was never assaulted in Westminster-Hali till this

cause at the bar. I cannot help therefore this observation, that as the king by his charter 1667, takes notice, that the charters granted by queen Elizabeth and king James remained uninterrupted till the late rebellion; so the interlopers against the king's prerogative in this particular, and the horrid conspirators against the king's life in this last hellish conspiracy, first appeared in Westminster-Hall about the same time.

As to the objections I have not yet given answer to, I think they are but few: my lord Coke's opinion, cited by Mr. Pollexfen, 2 Inst. 540, where my lord observes new things, which with fair pretences prove burtful to the commonwealth; and amongst them reckons, that new corporations trading into foreign parts and at home, which under the fair pretences of order and government, in conclusion tend to the hindrance of trade and traffic, and in the end produce monopolies, does not at all concern the case at the bar. For this charter that hath continued for 100 years without any interruption till of late, can neither be thought a new corporation or hindrance of trade; and sir Edward Coke, when he was attorney general, and past this charter, was as learned in the law, as he was when he published that book, and was turned out of being chief-justice, did not think this charter needed that caution.

As to the case of the Canary patent between Horn and Ivy, that cannot affect the case at the bar.

1. For first, the judgment in that case was given upon the point of pleading, and not upon the validity of the patent.

II. That patent was in perfect opposition to the statute, 3 Jac. that opened a free trade to Spain, and therefore could not be restrained by the king's letters patent, but there is no such objection to our case.

The counsel that argued for the defendant seemed to allow the charters to the Virginia, Turky, and Eastland Companies, which are exclusive of others, to be good; because they are managed by a regulation, and not by a joint-stock, which surely can make no difference: for it is a grant of a sole trade to them, exclusive of others, as well as the case at the bar. And it is as hard to get into the Turky Company, as it is into this; and may be more chargeable for you cannot be a member of the Turky Company, but you must be a freeman of the city of London; and makes you liable to all the great offices of charge in that government. But a freedom of the East-India Company may be purchased at a much easier rate; the members of the East-India Company are as visible as those of the Turky. And though it was said, the East-India Company were sometimes invisible, yet, were the Turky Company infected with so many interlopers as the East India Company have, they would not appear so glorious and splendid as they now do, and as I heartily wish they may long continue. But the king by this charter has

reserved to himself a power to destroy and alter the whole charter, or any part thereof, so as to put it into a way of regulation instead of a joint-stock, in such manner as he shall in his great wisdom think fit; therefore it becomes us ir duty and modesty to wait till we receive his further royal pleasure therein. And whereas it was objected at the bar, because the king cannot lay any imposition upon foreign trade, therefore he cannot restrain it:

I do not know to what end that objection was made, because it does not affect the question at the bar; but lest it may obtain the effect, that I presume was aimed at, I think it is not amiss to say, that even at this day there is much more may be said in the maintenance of the king's prerogative in Westminster-Hall, in that case, than can be offered against his prerogative in this. But in as much as that and several other objections against the charter proceeded from an unreasonable, as well as unmannerly mistrust they have of the crown, I cannot but remember that his sacred majesty was not so mistrustful of them. For he since his restauration has bestowed upon his subjects more than all his predecessors, put them all together, since the conquest, ever did. Nay, he in a moment frankly bestowed upon us more than ever he desires he should be trusted with again, for by his act of indemnity he bestowed upon his subjects their lives, liberties and estates, which were all justly and legally forfeited to him by the late rebellion; the consideration whereof will prevent all fears and jealousies, and promote in all loyal hearts a firm resolu tion to sacrifice their lives and fortunes, so freely bestowed upon us by him, to maintain the crown and just prerogatives thereof; so that it may have a perpetual continuance in that royal family, in a lawful succession; which I heartily pray may be so long as the sun and.

moon endures.

From what has been said, I hope it doth plainly appear the since the law of this land, and the law of nature and nations, allow the power of making companies to manage traffic, exclusive to all others to be in the prince, that this is reckoned to be inter Jura Regalia;' that no act of parliament does restrain this prerogative; that the practice of all Europe bas been accordingly; that particularly such companies have been erected in England, and those companies have been in quiet possession of their privileges for such a number of years; that they have passed the approbation of many learned men; that they have been thought for the public advantage of the nation, by so many kings and princes, with the advice of their council, both in and out of parliament; that all statutes and authorities of law that we can meet with in our books affirm it, and none that I can meet with oppose it.

That the East-India company have solely run the hazard, and been at great expences, In discovering places,

Erecting forts, and keeping forces, - Settling factories,

And making leagues and treatics abroad; It would be against natural justice and equity, (which no municipal law can take away) for others to reap the benefit and advantage of all this:

than the grantee of a fair, market, or any
franchise.

other

2. The action is brought, and grounded upon the grant of the sole and entire trade; which, as I conceive is a franchise the king may grant, and is like the case of new inventions; upon which letters patent actions are brought by every day's experience; and the prohibiting clause is added, only to make the thing more notorious: and that interlopers, in case they should be prosecuted at the king's suit, should be more inexcusable. And until you can imagine there be as many East-India Companies as there are commoners and school-masters in England, Mary's case, Coke 9. can never be thought an objection. As to the objection in the 11 Rep. 88. Rolls Abridg. part 1. p. 106. Darcy's case, that admitting the grant or dis

Especially since all this has been occasioned by an act of the public, and by the just prerogative of the crown, under which they claim. So that now, supposing the matter had been doubtful at the beginning (as yet the contrary is evident), yet after so many years undisputed and uninterrupted prerogative of the king, and the possession of the companies pursuant thereunto; and yet the laws having always been open to any subjects who conceived themselves grieved; that speech which Josephus records of king Agrippa, to those Jews who after many years endeavoured to recover their lost pretence, may be applied to these clamorous interlo-pensation to Darcy had been good, for the sole

pers:

Intempestivum est nunc libertatem concu'piscere, olim ne amitteretur certatum opor 'tuit. Non amantes libertatis discendi estis, sed • subditi contumaces.'

And so the Romans answered Antiochus (to shew the injustice of his demands), That he ' required those cities which his predecessors 'for so many years had never enjoyed.'

And queen Elizabeth pleaded against the king of Denmark, for the rights of fishing upon the coasts of Norway and New-Island, That neither his great-grandfather, grandfather, nor father, had exacted any thing for it; and therefore concluded it to be unjust. Cambd. Eliz.

sub. ann. 1600.

So that I conclude the first, and, as I conceive the only point in this case, that letters patent which gave licence and liberty to the plaintiffs to exercise their sole trade to the Indies, within the limits of their grant, exclusive of all others, is a good grant in law.

2. I do conceive, that the defendant trading to the Indies, contrary to this charter, may be punished by information at the suit of the king; and that this action by the plaintiffs is also well brought; but in as much as I have detained you so long upon the first point, I shall trespass upon your patience but a few words to this.

1. Therefore I conceive, the plaintiff need not alledge any special damage, no more

importing of foreign cards: yet that being only a dispensation to the stat. of Ed. 4. and. did only exclude Darcy from the penalty of that act, he could not maintain the action: but if in case that grant had vested an interest, as our grant at the bar does, he might have brought an action, as my lord Rolls says in the next paragraph, may be collected out of Darcy's case,

The case upon patents of new inventions, are full authorities in the case at the bar: and so is that case of the abbot of Westminster, wherein the grant of the market for thirty days, exclusive of others, is particularly set forth inthe action. And the Salisbury man that brought cloth to London, and sold the same contrary to that charter, is prosecuted in an action of trespass upon the case, at the suit of the abbot; and the writ concludes, (supposing the grant good) • In nostri contemptum et prædicti Abbatis grave damnum ac Fr. et libertatum suarum prædictarum læsionem manifestam;' which is an authority full as to this point.

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Upon the whole matter, I am of the same opinion with my brothers; and do conceive, that that grant to the plaintiffs of the sole trade to the Indies, exclusive of others, is a good grant, and that the action is well brought:

And therefore let the Plaintiff take his Judgment.

315. The Lady Ivy's Trial, for great Part of Shadwell, in the

County of Middlesex, Die Martis 3 Junii, A. D. 1684. Ter.
Trin. 36 CHARLES II. B. R. Before the Lord Chief Justice
JEFFREYS.*

Elam Mossam, Plaintiff; v. Dame Theodosia | which are about three or four hundred tene

Ivy, Defendant.

THIS day this cause came to be tried at the bar of the Court of King's Bench, by a special jury of the county of Middlesex; whose names follow: Sir Reginald Forster, bart. sir John Cutler, kt. and bart. sir Goddard Nelthorp, bart. sir Michael Heneage, knt. sir William Gulston, knt. sir Richard Downton, knt. Rich ́ard Reynell, Ralph Bucknall, Thomas Austin, Joseph Dawson, Thomas Cleve, Richard White, esquires.

ments near Radcliffe, in Shadwell parish; and heritance of the church of St. Paul's, who the ground thereof is, say we, the ancient inhave had the possession thereof for four or five hundred years +. We shall prove leases down for some hundreds of years, till we come to that made to the lessor of the plaintiff; under whom we claim. We will begin with the last lease of deau Stillingfleet, 30 Sept. 1678, upon the surrender of the lease made by dean Sancroft, now lord archbishop of Canterbury.

Swear Jeoffrey Willan (which was done ;) it Who being counted, the Record was read to is a church-lease, but yet he is a witness to it. them by the clerk of the papers, in English; and opened by Mr. Holloway, for the plaintiff. The Lease of 30 Sept. 1678, was read. Serj. Stringer. May it please your lordship, Serj. Stringer. (Shewing to him another and you gentlemen of the jury, I am of coun- deed). Did you see that deed sealed and desel in this case for the plaintiff; and the ques-livered? tion will be, whether the lessor or the plaintiff hath a good title to the tenements in question;

*"Jefferies," says Mr. Fox, "was a man entirely agreeable to the temper and suitable to the purposes of the present government" [that of James the second.]" He was thought not to be very learned in his profession; but what might be wanting in knowledge, he made up in positiveness; and indeed whatever might be the difficulties in questions between one subject and another, the fashionable doctrine which prevailed at that time, of supporting the king's prerogative in its full extent, and without restriction or limitation, rendered, to such as espoused it, all that branch of law, which is called constitutional, extremely easy and simple. He was as submissive and mean to those above him, as he was haughty and insolent to those who were in any degree in his power; and if in his own conduct he did not exhibit a very nice regard for morality, or even for decency, he never failed to animadvert upon, and to punish the most slight deviation in others, with the utmost severity, especially if they were persons whom he suspected to be no favourites of the court." Hist. of the Reign of James 2., ch. 2.

Willan. Yes, Sir.

An Indenture quadripartite made the 25th of

that did not become the bar, much less the bench. He was not learned in his profession, and his eloquence, though viciously copious, yet was neither correct nor agreeable."

tions on 4 Hen. 7, observes that bishop Burnet Mr. Barrington, in a Note to his Observa"is generally very accurate with regard to points of this sort" [legal history,]" and it is not improbable that his history was revised by his great patron sir Harbottle Grimstone, who

was Master of the Rolls."

This conjecture cannot be true of any part of Burnet's History of the reigns of James 2d, died about Christmas 1684, at the age of 82, king William, or queen Anne, for Grimstone see 1 Own Times, 597.] His being likewise him to the acquaintance of the great lawyers chaplain to sir Harbottle must have introduced of the time: in his history he occasionally gives us their characters. In the trial now before us Jefferies displays considerable acuteness, accompanied by his usual insolence and coarseness. There is a story that having commenced the profession of the law in the unsettled times between the death of Charles the First and the Restoration of Charles the

called to the bar.

Burnet had before said, Own Times, vol. 1. Second, Jefferies had never been regularly p. 567. "All people were apprehensive of very black designs when they saw Jefferies made Lord Chief Justice, who was scandalously vicious, and was drunk every day, besides a drunkenness of fury in his temper that looked like enthusiasm. He did not consider the decencies of his post: nor did he so much as affect to seem impartial as became a judge, but run out upon all occasions into declamations

+"The state of the question being, Whether the seven acres in Shadwell, was part of the ancient inheritance of the dean of St. Paul's to whom Mr. Neale was lessee, and so now lessor of the plaintiff'; or part of Wapping marsh, that had been drained by one Vanderdelf, and after sold to the Stepkins's under whom the lady Ivy did claim." Former Edit.

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