527] STATE TRIALS, 36 CHARLES II. 1684.-The Great Case of Monopolies: [523 every nation should be at liberty to trade, either in what commodities, or to what place, or at what time soever he shall think fit. For I took it to be granted by all that argued for the defendant, that trade and commerce must be subject to some laws; and Grotius, in his book de Mari libero,' proposes this main design, to prove, that any one nation he not power to hinder another nation from free commerce; and that the Spaniards therefore had no right to prohibit the Dutch from trading into such parts of the Indies, whereof the Spaniards were not possessed, upon pretence that they had the dominion of those seas: Internes & 'Hispanos,' says he, hæc controversio est, 'sitne immensum et vastum mare regni unius < nec maritimi a cessio? Populone unquam jus sit volentes populos prohibere ne vendant, ne permutent, ne denique commeent inter sese.' And for the benefit of his countrymen he doth therefore assert, licere cuivis genti quamvis • alteram adire, cumque ea negotiare; which taking that to be true, which by the law of nations is certainly otherwise, yet nothing can be inferred from thence, but only the question of commerce between one nation and another. And how that was before leagues and treaties were made, little may perhaps be found, as Mr. Attorney well observed, besides the laws of hospitality, which do not give any demandable right; but surely Grotius there hath no particular respect to particular subjects of this or any other nation, how far the supreme power of any nation may erect a society of trade to a certain place, and for certain commodities, exclusive of all other subjects of their own. it by the right of his prerogative; Plowden's Commentaries, in the case of Mines; Coke 5. Sir Henry Constable's case; these things were vested in the king by his prerogative by the the treatise of Mare Liberum, on which Mr. common law. Yet I cannot but observe, that Williams so much relies, was craftily writ, to overthrow the king's prerogative in that beneEnglish coasts; and contains a plain proclaficial part thereof, relating to the fishing on the mation for all persons of any nation, indifferently to fish in all kinds of seas; for says cap. 5, fol. 10. "Que autem navigationis eadem 'Piscatus habenda est ratio, ut communis maliams intends to make good the premises, I neat omnibus.' And herein though Mr. Wilpresume that Mr. Pollexfen, that argued on the same side, has a greater concern for his friends in the West, than to join with him to make good that conclusion. And before I go off from this point, I think it not amiss, the better to clear the way to my conclusions, to give some instances wherein other nations, well as our own, have not only thought it legal, but necessary for their several public advan tages, to put restrictions upon trade, and did not think it injurious to natural equity, and the freeother side. To give some few instances; Vidom of mankind, so much discoursed of on the Repub. lib. 7. non solam omnibus populorum 'demus Jura Commerciorum,' says Bodin de principumque inter se conventis, verum etiam singularum Statutis,' &c. And after he has enumerated the compacts for trade between the Pope and the Venetians, between the citizens of the Hans towns, and the kings of England, And that plainly appears, both from the France, and Spain, and several other countries; scope of his book, as also for that for several Illi,' says he, inter se Commercium multis years, both before and at the time of publishingporum atque omni alia ratione coarctarunt.' 'modis personarum, mercium, locorum, temthat treatise, the Dutch East-India Company was established ; which I shall have farther occasion to discourse of by-and-bye. As for Welwood's Epistle, I have seldom observed that epistles have been cited in Westminster-hall as authorities: yet supposing it to be so, that all loyal subjects shall have their petitions granted to safety and security in their trade; I suppose Welwood little dreamt of interlopers, when he talked of loyal subjects; if it can be meant only of such who may trade by law, that is to beg the question in respect of the plaintiff and defendant. As to that of Britton, that the sea is common, it is answered by what hath been said before; and Welwood, page 66, says, that by commune or publicum, is meant a thing common for the use of any one sort of people, according to that saying, Roma Communis Patria est,' but not for all of all nations; Welwood, page 66. That passage of Burrough is only observed to prove the king's prerogative within the four seas; and though Mr. Williams would have insinuated, as if the sturgeons and other great fish, and wrecks, and the like, had come to the king by the Stat. of 17 E. S, c. 2, that act was but a declaration of the common law; for he had So is Marguardus, fol. 155, and Buchanan in fore, thirdly, endeavour to prove, that foreign law now in print, that doth oppose this assertion. Coke 3 Inst. fol. 181, in the margin, cited by the defendants counsel at the bar: • Commercium,' says he 'Jure Gentium esse debet ;' nay, it is the express text of law, ex Jure Gentium Commercia sunt instituta:' which being laid down as undeniably true, and so admitted to be by the defendant's counsel; I would infer from thence, since commerce and traffic are founded upon the law of nations by the natural reasons of things, all controversies arising about the same, shall be determined by the same laws, especially where there is no positive and express law in that country where such controversies do arise, to determine them by and Mr. Williams seems to allow, that there are no such laws in this kingdom; for he thinks that the controversy now before us, is not to be decided but by parlia ment. navigation, leagues, truces, embassies; nay even in the case at the bar, the stopping of the defendant's ship by an admiralty process, was left, by the opinion of all this court, and afterwards by the courts of Common Pleas, and Exchequer, to be decided in the admiralty; and by virtue of a process out of that court, his ship is detained this day. And as I said, that court proceeds according to the law of nations, and the matters before specified are not to be controuled by the rules of the common law. And if customs make a law, then the custom of nations is surely the law of nations; which brings me to my next particular, which is the main thing upon which this cause will turn. Therefore, 4thly, I conceive, that both by the law of nations, and by the common law of England, the regulation, restraint and government of foreign trade and commerce, is reckoned inter Jura Regalia,' i. e. is in the power of the king: and it is his undoubted preroga tive, and is not abridged or controuled, by any act of parliament now in force. take notice of, when I come to answer the particular objections made against this grant. Commerciorum Jura sunt privilegiata, ac non nisi iis concessa qui exercendorum Mercatorum licentiam principis indultu et autho All other nations have governed themselves by this principle; and upon this ground stands the court of admiralty in this kingdom, 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 common and conveniences arising, the king is to be suppli- ` statute laws of this realm are too strait and narcated to redress them: which I shall farther row to govern and decide differences arising about foreign commerce, and can never be thought to hear any sort of proportion to the universal law of all nations, as the interests of all foreign trade do necessitate them to contend for; 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-Inerchant; That the laws of commerce are contained in and as the book of Ed. 4, 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, makegistratus 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 law-merchant, which is part of the law of nature and nations; and is universal, and one and the same in all countries in the world. And therefore Cicero speaking of this law, says, Non erit alia Lex Romæ, alia Athenis, alia 'nunc, alia posthac; sed et inter omnes gentes et omni tempore una eademque lex obtinebit.' And I the rather thought myself obliged, more industriously to search into the law of nations, the better to enable me to give judgment in this case; the consequence whereof will affect the king's subjects in all parts of the world; and I was minded thereof, particularly, by my lord chief baron Fleming, in the giving judgment of the great case of Bates, about the imposition upon currants, Lane, fol. 27, and does not only affirm it as necessary, but the common practices of all judges, in all ages. Do not we leave the determination of ecclesiastical causes to be decided according to the ecclesiastical laws; foreign matters, matters of VOL. X. authoritatem.' So Carpzovius, a famous German lawyer, in his decisions, lib. decis. 105. N. 13, & 14. Exempla haud rara sunt, ubi Privilegio et Edicto Principis commercia ad certas personas certave loca restringere videmus.' These rules and principles, asserted to be the laws of nations, agree with the principles of our laws. Mr. Attorney, in his argument in this cause, cited many records and precedents to make good this assertion; which I think he did with great clearness. I therefore will content myself with as few of them as I can ; and only remind you of such as I think absolutely necessary to make good my asser. tion, which I will do by these steps. I con ceive the king had an absolute power to forbid foreigners, whether merchants or others, from coming within his dominions, both in times of war and in times of peace, according to his royal will and pleasure; and therefore gave safe-conducts to merchants strangers, to come in, in all ages, and at his pleasure commanded 2 M 531] STATE TRIALS, 36 CHARLES II. 1684.-The Great Case of Monopolies: [532 them out again, by his proclamation or order of council; of which there is no king's reign without many instances. And the statute of Mag. Chart. c. 30. so much insisted on by the defendant's counsel, is but a general safe-conduct; Omnes Mercatores nisi publicè ante 'prohibiti fuerint, habeant salvum et securum 'conductum, &c. Where by the bye I must observe, that Mercatores, says my lord Coke, in bis comment upon the chapter, is only intended of merchant-strangers; for I cannot find, that in those days any of the subjects of this kingdom did apply themselves to foreign trade; or at least the trade was not so considerable, as to be taken notice of in any book of record that I can meet with. And before the making of that statute, my lord Coke, 2 Inst. fol. 57. does agree, that the king might, and did prohibit strangers at his pleasure: but he conceives, and, with great respect be it spoken to his memory, I think without any colour of reason, would make these words, nisi publicè prohi⚫beantur,' to intend only a prohibition by parliament; and his reason is, for that it concerns the whole realm. Now did the coming in of strangers concern the realm after making of the act, more than it did before? surely no. Doth not the power of making war and peace, absolutely belong to the king by his prerogative? And is not that of public concern to the kingdom? And is not the prohibition of strangers a natural dependant upon that prerogative? If the word publicè there had been out, there had been no colour for that conceit; and surely the king's proclamation will make the matter as public as an act of parliament can do: nay, and I may say more, for acts of parliament anciently were made public by proclamation; for in our books we have many instances of writs directed to sheriffs of counties, to cause acts of parliament to be published by proclamation; and so was the constant and ancient usage. And is it not more natural for strangers that are abroad, to take notice of the king's public edicts, which are known to be of great import ance in all countries, more than they would of an act of parliament that affects the king's own dominions only? Besides, it appears more impertinent, if you turn those words into a Proviso; and then it will amount to no more in plain English than this, law shall continue, except it be hereafter reprovided that this pealed;' which surely would be very ridiculous. ་ prerogative, as to safe conducts, it doth appear. Sydertin. fol. 441. it is said, that the king by the common law, might prohibit the importation of foreign goods; and whoever acted against such prohibition, forfeited his ship. The king might prohibit any of his subjects recall them again as he thought fit; and that, from going beyond the seas at pleasure, and as I have said before, without giving any reason. The books of Fitzherbert's N. B. and Register, before recited, make this evident. Mr. Attorney indeed cited many instances wherein the kings had made use of their prerogatives, as 7 Ed. 2. M. 10. Quadragesimo Ed. 3. M. 24. stat. 5 R. cap. 2. which confirms it, 3 Instit. 179. Vicesimo quinto Ed. 3. M. 10. with many more*; and indeed I think it was not denied, but that after a probibition, it was an offence admitted of by the defendant's coun165 and 296. agrees it. sel for any subjects to go beyond the seas, Dy. there being a prohibition in the charter in And that is sufficient for the present purpose, question, to all persons that are not there mentioned. · gative must necessarily have upon foreign What influence the king's prerogranting letters of mart and reprisal: These trade and commerce, appears by his frequent are not allowed of by the law of nature, civil or common law; for thereby no man is bound by another's act, without his consent, but by the general consent of nations, humana necessitate exigente.' The king only has the power of making leagues and truces with foreign princes, upon which only all foreign trade does depend; and those leagues are made upon such terms and conditions, and under such limitations, as both princes think fit: Many instances to this purpose were also cited by Mr. Attorney, to which I refer myself; and the differences that arise from merchants beyond the seas, are to be determined according to those leagues, and cannot be decided by the municipal laws of this realm, which cannot be put in execution in foreign parts. Fourthly, The king is absolutely master of he had not a power to lay restraint upon his war and peace; which he could not be, in case since eo ipso, that war is proclaimed, all public own subjects in relation to foreign commerce; argued for the defendant, admitted, That the commerce is prohibited: and the counsel that king might prohibit his subjects to go or trade How strangely preposterous then would it be beyond the seas in cases of wars or plagues. for a man to imagine, that the king should have an absolute power of war and peace, and yet be denied the means to preserve the one, and prereason why the king is at so great expence in vent the other! Is not that therefore the great Mr. Attorney and Mr. Solicitor both, in their arguments, quoted several records and precedents, where the king, in all times after the making of that act, did prohibit strangers from coming in, and did command them out when they were here, at pleasure. I shall not trouble you with the repetition of the records, for they were many; nay, the king, when acts of parliament had prohibited, did pray leave to export and import foreign goods *Rolls Abr. 2. fo. 214. The Commons 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. all the traitors, murderers and robbers, and other felons, and make use of his prerogative to let all malefactors escape? The king is the fountain of honour, as well as of justice, and in virtue of that prerogative, may ennoble as many of his subjects as he pleases; and thereby exempt them from arrests, and other common processes of the law, by means whereof men do more speedily recover their just debts, and have redress for injuries. Is it therefore to be presumed the king will make such a glut of noblemen, because he may do it? And as this is against his inclination, so certainly it is against his interest, to make such grants as the defendant's counsel seem to fear; for it is more for the king's benefit than it can be for his subjects, the greater the importation of foreign commodities is; for from thence arise his customs and impositions, those necessary supports of the crown: and therefore, in some sense, the king is the only this island supported its inhabitants in many ages without any foreign trade at all, having in it all things necessary for the life of man. maintaining ambassadors and envoys in all thejected and presumed, that the king will pardon trading parts of the world, without which we should be in a perpetual state of war? would it not be monstrous, that when the king is entered into league with any sovereign prince, in a matter of trade very advantageous to his people, to have it in the power of any one of his subjects to destroy it? As for instance, suppose a league between our king and the emperor of Morocco, for a trade to Tangier, were made upon condition, That no English ship coming there for commerce, should be above a hundred ton, and a fleet of merchant ships within that condition, were in port at Tangier; and Mr. Sandys, with the same obstinacy as he seems to appear in this case, should have gone with a ship of above a hundred ton to Tangier; that would have been an absolute breach of the league; we should have been immediately in a state of war, the merchant-ships and goods absolutely forfeited to the emperor by the law of nations, and they and their families thereby undone, without any remedy, till Mr. Sandysperson truly concerned in this question; for should be pleased to return into England; and also bring with him an estate sufficient to make them a recompence: and then also perhaps it would be difficult to contrive such an action in our law, to compel Mr. Sandys to do it. Besides, the king has no other way, if his ambassadors and ministers in foreign parts cannot prevail that right should be done to his subjects; or if Mr. Sandy's interloping ship, and all its cargo, had been wrongfully taken away from him by any foreign prince, but by the king's declaring of a war, and compelling them to make restitution by force; the consequence whereof will affect more than foreign traders, who would be then concerned, both in their persons and purses; and it would be very hard for all the king's subjects to lie under the burthen and charge, and the profits and advantages accrue only to a few. And here, by the way, I think it not improper to take notice of an objection that was made by the defendant's counsel, of the unreasonableness that the king should be entrusted with this prerogative: for 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. Wilprince. 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 what 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 he be thereunto called. But it such diffidence; and I think I may truly say, hath 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 has 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 disputed in any age, though never so troublesome; saving in that single case of the earl of Danby, and that without any reason, that I could ever hear of. Is it therefore to be ob 'Terra suis contenta bonis, non indiga mercis,' says the poet. And truly, I think, if at this day most of the East-India commodities were absolutely prohibited, though it might be injurious as to the profit of some few traders, it would not be so to the general of the inhabitants of this realm. And therefore, as I have offered these few instances to prove the king should have such a prerogative; in the next place I come to shew, that the kings of England have exercised this their prerogative in all ages: and as the king has the power of restraint of the foreign trade, so he is only judge when it is proper to use that power, which seems plainly to be for the sanie reason. And I think Mr. Williams's remark of the difficulty of this case, that it should necessitate the king to call a parliament to assist him with power to determine this question, is not to be passed by without some observation. of the king thought so inconsiderable, as though he were a mere duke of Venice, being absolutely dependant upon his parliament. Would it not be mightily for the honour aud dignity of the crown of England, think ye, that 555] STATE TRIALS, 36 CHARLES II. 1684.-The Great Case of Monopolies: [536 the emperor of Fez and Morocco, or any prince of the remote parts of the world, should be told, That Mr. Sandys, one of the king of Great Britain's subjects, came into the emperor's territories against his prince's consent, and that he had no power to hinder him, unless he would consult with all his nobles, and the representatives of all bis common subjects, to assist therein? Would not the emperor believe Sandys to be the greater prince of the two? But though such sort of declamations are so much for the service of the crown, and for the honour of the kingdom, as they would have it believed; yet I think they have the same tendency of duty and service to the king, with some other matters that of late have happened amongst us, viz. Some have been so concerned, as well for the safety and security of his majesty's sacred person, and to make him formidable to his rebellious subjects at home, as to desire that his guards might be discharged, because it looked as though he designed to rule by a standing army; and to shew their tenderness to his sacred life, would have him removed from the assistance of evil counsellors as they called them; and put himself into the hands of assassinates, as though one murdered prince were not sufficient to satisfy that piece of state-policy in one and the same age. And in order that he might have sufficient to support the necessity, as well as the dignity of a crown, which all good subjects are zealous for; some, of late, have industriously endeavoured to have prevented him from being able to borrow any money upon the credit of any part of his revenue, a privilege that the meanest of the persons concerned in that question would think themselves highly injured to be debarred of. These and the like attempts, if not prevented, will render the king and his governinent low and despicable in all other parts of the world: and as for the instance between a denizen and a man naturalized, I think it rather makes against, than for Mr. Williams's conclusion, as to the main question. For though the king cannot naturalize a man, and thereby give him inheritable blood, as a natural-born subject, to inherit lands; yet he may make an alien a denizen; and by that means he becomes to have as much privilege as any of the king's natural subjects bath as to trade and commerce, which is the only question now before us: and I cannot help being of opinion, that this kingdom was in greater regard abroad, and the inhabitants thereof more prosperous at home when the prerogative of the crown was more absolute than now it is; therefore it is our duty as good judges, as well as good subjects, to endeavour to support it as much as we can by law. And so I proceed to mention some precedents and authorities, whereby the kings of England have in all ages exercised this part of their prerogative, of restraining, disposing and ordering matters of commerce and foreign trade, by royal licences, charters, and dispensations. much brevity as I can, only in producing some And herein I shall content myself with as few of those many instances, which were with great care and industry found out by Mr. Attorney, and Mr. Solicitor; and by them so learnedly and properly applied to the case in question. the staples, which were the common and 1. Therefore it has been well observed, that public marts for all merchants to resort to, without any act of parliament; as it doth plainwere first erected by the king's prerogative, ly appear by the several acts of parliament mentioned at the bar, either for setting the places, or enlarging the commodities that were permitted to be brought to the staple; for surely dominions of any other prince, in all times, when the staple was fixed in the done by league, which none can make but the king. To instance one authority for all, the that must be Stat. 2 Ed. 3, cap. 9. expressly says, 'It is enacted, That the staples beyond the seas, and on this side, ordained by kings in time cited several records, and other acts of parliapast, &c. Mr. Attorney and Mr. Solicitor ment, that allow this to be the king's preroga tive absolutely; which I shall only name, they having opened the particulars at large, viz. Vicesimo E. 3, Plac: Parl. Rolls Abr. fol. 108. 130. Octavo. E. 3, num. 20. 27 E. 3, cap. 1. 43 E. 3, c. 1. 47 E 3, N. 17 Prim. R. 2. N. 98. with many more; which did not only listaples, but prohibited them from carrying their cense merchants to repair to their several staple commodities to any other places, and the several acts of parliament made touching the staple, only inflicted greater forfeitures upon the persons offending, more than the king added to, or diminished any part of the power by his prerogative did inflict; but neither of the crown; farther appear by the consent of the parliament the truth whereof will also plainly declared in several statutes following, viz. 2 H. 5, c. 6. 2 H. 6. c. 4. 8 H. 6, c. 17 and both by Mr. Solicitor and Mr. Attorney, I do 27. by which, and several other instances, of 2 Ed. 3, c. 9. Nono Ed. 3, c. 1, decimconceive it does plainly appear, that the statute quarto' Ed. 3, c. 2. the Stat. of decimoquinto' Ed. 3, mentioned in the defendant's plea, decimo 8 Ed. 3, c. 3. which the defendant's counsel have much insisted on, for the opening the liberty of trade only concerned merchants of the staples; and by the acts of parliaments made relating to that trade, since particularly mentioned by Mr. Attorney, stand now repealed. as the commodities, were ascertained by acts of And as the king, before those acts of par |