the license given to the Company to trade into India, with a prohibition to others, is good in law, and the penalties of forfeitures of goods may therein run upon any goods which shall be seized within the limits of the Company's charter, as for breach of a local law made by your Majesty, which I conceive your Majesty may make in the foreign plantations and colonies inhabited by your Majesty's subjects by your permission. I am of opinion that your Majesty may issue such proclamation as is desired.

November 16, 1681.

R. SAWYER.

(3.) OPINION of MR. WEST, Counsel to the Board of Trade, on the question of establishing British Manufactures in France, and on the Prerogative of the Crown to restrain Trade. 1718. To the Right Honourable the Lords Commissioners of Trade and Plantations.

MY LORDS,-In obedience to your Lordships' commands, signified to me by Mr. Popple, I have perused and considered the several letters relating to the establishing several manufactures in foreign parts by British artificers; but, as the case is not particularly stated unto me, it will not be possible for me to give a direct answer to the question proposed. I shall therefore beg leave of your Lordships to consider it something at large, and to lay down some general positions which I take to be agreeable to the law of England; a right application of which, I believe, will in a great measure amount to an answer to such inquiries as may be made.

1. That particular subjects should have an uncontrollable liberty of all manner of trading, is not only against the policy of our nation, but of all other Governments whatsoever. I do, therefore, take it to be law, that the Crown may, upon special occasion, and for reasons of state, restrain the same; and that not only in cases of war, plague, or scarcity of any commodity, of more necessary use at home, for the provision of the subject, or the defence of the kingdom, &c. (in which cases the King's prerogative is allowed to be beyond dispute), but even for the preservation of the balance of trade; as, suppose a foreign prince, though in other respects preserving a fair correspondence and in amity with us, yet will not punctually observe such treaties of commerce as may have been

made between the two nations; or, in case there are no such treaties existing, refuses to enter into such a regulation of trade as may be for the mutual advantage and benefit of both dominions. On such occasion, I am of opinion that the King, by his prerogative, may prohibit and restrain all his subjects, in general, from exporting particular commodities, &c.; or else, generally, from trading to such a particular country or place; since trade does not only depend upon the will or laws of the prince whose subjects adventure abroad to carry it on, but also of that prince into whose country the commodities are exported, and with whose subjects commerce is negotiated and contracted. Without such a power, it is obvious that the Government of England could not be upon equal terms with the rest of its neighbours, and since trade depends principally upon such treaties and alliances as are entered into by the Crown with foreign princes; and, since the power of entering into such treaties is vested absolutely in the Crown, it necessarily follows that the management and direction of trade must, in a great measure, belong to the King.

2. Things of this nature are not to be considered strictly according to those municipal laws, and those ordinary rules, by which the private property of subjects resident within the kingdom is determined; but a regard must also be had to the laws of nations, to the policy and safety of the kingdom; the particular interest and advantages of private men must, in such cases, give way to the general good; and acting against that, though in a way of commerce, is an offence punishable at the common law.

3. Foreign trades carried on by particular subjects for their private advantage, which are really destructive unto, or else tending to the general disadvantage of the kingdom, are under the power of the Crown to be restrained or totally prohibited. There may be a prohibition of commerce without open enmity, as an actual declaration of war; and particular subjects, who, for private gain, carry on a trade abroad, which causes a general prejudice or loss to the kingdom, considered as an entire body, in doing so manifestly act against the public good, and ought not only to be prohibited but punished. Carrying on such trades is, in truth (what some Acts of Parliament have declared some trades to be), being guilty of common nuisances: and if the Crown, which in its

administration of government is to regard the advantage of the whole realm, should not be invested with sufficient power to repress and restrain such common mischiefs, it has not a power to do right to all its subjects. If the public mischiefs, from such a way of trading, be plain and evident, there is the same reason for restraining particular persons from carrying on a trade that draws such consequences after it (though it be a trade that of itself is not prohibited by any particular law), as there is that a private subject shall not make such a use of his own house or land (in which he has an absolute propriety and a legal title to it) as will turn to the common annoyance and public detriment of the rest of the kingdom.

4. The general trade of the nation, and the maintaining of the customs and duties granted to the Crown for the support of it, are things of so public a concern, that whatsoever has a direct and evident tendency to the discouragement and disadvantage of the one, or to the diminution of the other, is a crime against the public. As an instance of which, I shall mention it as a kind of precedent, that raising and spreading a story that wool would not be suffered to be exported upon such a year (probably by some stock-jobbers in those times), whereby the value of wool was beaten down, though it did not appear the defendants reaped any particular advantage by the deceit, was, upon the account of its being an injury to trade, punished by indictment; and a confederacy, without any further act done, to impoverish the farmers of the excise and lessen the duty itself, has been held an offence punishable by information. If, therefore, the consequence of this present undertaking should prove what is apprehended from it, there can be no doubt but that the Crown has so much interest and concern for the trade of the nation and its own revenue, as to be able to put a stop to the carrying on a thing so mischievous to the one and the other by the advice and assistance of his Majesty's own subjects.

5. As to the particular subjects so employed abroad, there is no doubt but that the King, by his prerogative, may restrain them; it is agreed on all hands that the Statute of Fugitives is but an affirmance of the common law; that the Crown may, at its discretion, require the personal presence and attendance of the subject, lest the kingdom should be disfurnished of people for its defence,

as it is said in some books; and not only so, but upon a suspicion or jealousy that he is going abroad: Ad quam plurima nobis et quam pluribus de populo nostro prejudicialia et damnosa ibTM prosequenda (as the writ framed upon that occasion expressed it). The Crown is, by law, entrusted to judge what things those are which shall be looked upon to be mischievous and prejudicial to the Crown and people, and what caution is to be taken against them; and by that writ it appears it is equally criminal to do anything of that kind by any other hand as to do it personally himself; and therefore, after the writ has commanded his not going abroad, it adds: Nec qui quicquam il prosequi attemptes, seu attemptari facias, quod in nostrum seu dictæ coronæ nostræ præjudicium cedere valeat quovis modo: nec aliquem ibm mittas ex hac causa.

6. Upon the very foot of trade itself, it is necessary that the Crown should have a power over the persons and dealings of their subjects in foreign parts. By the law of nations, a Government, if they have no other redress, take goods from any of the same nation by way of reprisal for injustice done by one of the nations; so that Englishmen suffered to reside abroad, by their misbehaviour may endanger more than their own persons and estates. But, as the stating to your Lordships the power which the Crown has to prohibit the subject from going abroad, when there is reason to suspect that designs prejudicial to the kingdom are carrying on, alone is not sufficient to answer your Lordships' purpose, I shall beg leave to remind your Lordships of a case parallel to this, which has already had a determination at the board: anno 1705, several English merchants were concerned in a design to set up the manufacturing of tobacco in Russia, to which purpose they had carried over the necessary workmen and instruments; but, upon application to the Board of Trade, the then Lords Commissioners did represent it to the Queen in Council as their opinion, that the persons who had been already sent to Moscow might be recalled by letters of Privy Seal directed to her Majesty's envoy for that purpose, and that the engines and materials of working should be broken and destroyed in the presence of the said envoy, and that the persons at home who were concerned in sending the said workmen over should be enjoined not to send over any more workmen or materials, &c.

Upon inquiry, my Lords, I am informed that the said works and materials were actually destroyed in Russia, and the workmen sent back again by the direction of the envoy, who took the advantage of the Czar's absence from the place where they were established. What was then done may certainly be repeated. It is not the business of a lawyer to consider how such a method of proceeding may be relished by a foreign Court, but only to give it as his opinion that it may be justified as against particular subjects who are guilty of so high a crime against their country.

December 5, 1718.

RICH. WEST.

(4.) OPINION of the Attorney General, SIR PHIlip Yorke, relating to English Subjects being engaged in the East India Company of Sweden. 1731.

To the Right Honourable the Lords Commissioners for Trade and Plantations.

MY LORDS, I received your Lordships' commands, by letter from Mr. Popple, signifying to me that your Lordships having some papers under your consideration relating to an East India Company lately erected in Sweden, wherein several Englishmen are thought to be engaged, not only as having shares in the said Company, but as captains, supercargoes, and sailors, had desired I would let your Lordships know what laws are now in force to restrain his Majesty's subjects, either in or out of this realm, from being anyways engaged as aforementioned, and what penalties they are subject to, as also my opinion whether his Majesty has any power to recall his subjects (other than artificers and manufacturers) from foreign parts, and if they are liable to any penalty upon their refusing to return.

As to the first question-what laws are now in force to restrain his Majesty's subjects, either in or out of the realm, from being engaged either as sharers in the said Company, or as captains, supercargoes, or sailors under them?—I humbly certify your Lordships, that the Act made in the fifth year of the reign of his late Majesty King George I., entitled, "An Act for the better securing the lawful trade of his Majesty's subjects to and from the East Indies, and for the more effectual preventing all his Majesty's subjects trading thither under foreign commissions," expired at the end of the session of Parliament.