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liament mentioned, ordered the merchandizes enemies, without a royal licence, as it is to of the staple ; so all other foreign trade not trade with aliens amies, contrary to a royal taken notice of hy acts of parliament, were prohibition. And I cannot conjecture how he begun and absolutely disposed of by the king's will avoid this rock, notwithstanding his preprerogative ; for as my lord Coke, in his com- tended skill in navigation, without making use ment upon Mag. Ohart. c. 30, does truly ob. of this charter as a safe-conduct to him, by serve, that by Mercatores there, only is meant implication ; though he seems here so much merchant-strangers ; for as I said, I do not to struggle against it: and how far that would find that any of the subjects of this king prevail for bis benefit, may be also considered. meddled in foreign trade, in many years after But as I said before, the making of that act: the first instance I 4. The true question is, Whether this be a meet with, is in Malin's Lex Mercatoria, fol. good grant to the plaintiffs, of a sole trade to 150, of the society of merchants, which is the the Indies, were the inhabitants thereof Chris. staples-adventurers, made by a grant from tians or infidels, exclusive of others ? king Ed. 3, and were called the brotherhood of And therefore I proceed to the next step, St. Thomas-a-Becket of Canterbury, until the that though unlawful engrossing, and monotime of Hen. 7, who confirmed their charter, polies, are prohibited by the laws of this, and but changed their name to that of Merchant- all other nations ; yet I do conceive, that the adventurers, by which name they continued a charter now in question, of a sole trade exclucorporation.

sive of others, is no such unlawful engrossing, And that the king did shut and open foreign or monopoly, b'it is supported and encouraged, trade at his pleasure, by many instances men- as conducing to public benefit by the law, tioned by Mr. Attorney and Mr. Solicitor, does practice, and usage of this and other countries. farther appear, 33 H. 3, mem. 1, 2 E. 3, pars And herein, by the way, though the word secunda, memb. 35, 3 H. 3, N. 33, Rolis Pre- Monopoly, or Engrossing, generally spoken of rogative 170 and 214, before cited, primo H. is odious in the eye of our law, yet some en5, 41, deci no-octavo H. 6, N. 60, and the grossings, and so some monopolies, are allowed Stat. of 1. 11.7, c. 6, which I have caused to of in our books; and so I desire to be under. be searened. And in Plowden's Commentaries, stood, when I say a lawful or unlawful monoin the great case of Mmes Royal it is set down poly, or a lawful or unlawful engrossing. And as a rule, that ancient charters and grants of in as much as this is the great, and as I think, the crown, are the best ev.dences of the prero- the only objection that either hath, or can be gative. Phil. and Mary erected the corpo- made against the present charter, I shall be ration of Russia merchants, by charter, with the more particular in , giving my opinion a prohibition to others, with the like conditions therein, with the reasons and authorities that within mentioned in the charter at the bar ; have induced me thereunto. and was afterwards approved of in parliament I premise only this, that in all those counin 8 Eliz. and the forfeiture mentioned in the tries, where societies of trade are erected by letters patent made more effectual. And as the supreme power, exclusive of all others, as Mr. Aitorney did truly observe, that when the case at the bar, monopolies are forbidden; Calais was taken, and thereby the staples un- and are as severely punished by their laws, as settled, queen Elizabeth thought, according to they can be by the common and statute laws the precedent of the Russia and other compa- of England, (viz.) in Holland, Germany, pies, it was most advantageous for the carrying France and Spain, &c. on of trade and foreign commerce, to erect And so wherever the civil law prevails, mosocieties and corporations ; which was well ap- nopolies are punished with confiscation of proved of in those times, and so has continued goods, and banishment. C. de Monopoliis et ever since'undisturbed, until this present ques- Cens. forens. part 1, fol. 497. tion; which I shall more particularly insist Now though monopolies are forbidden, yet upon, when I come to discourse of the next head. that cannot be understood to be so universally

And here by the way, I shall only remem- true, (as no general law can ever be) that it ber, that there were many records and books should in-no respect, and upon no occasion or cited by the counsel at the bar, to prove the emergency whatsoever, admit of any excepdifference between alien enemies, and alien tion or limitation. amies; and how these iptidels are in law Theexceptions thereof may be such as these : looked upon as perpetual enemies, and the 1. Though no private persons can have the many cases that were cited about the Jews, and sole trade to themselves, by their own private others, I think will not be necessary to be authority, yet this may be granted to a public farther insisted upon ; for I conceive they do society, by the prerogative of the prince ; if, pot concern the question that is now before us. 2. It be upon good cause, and for the public For were not the charter now in question in advantage of the kingdom. being, it would be worth while for Mr. Sandys 3. From the necessity of beginning and carto consider, how far he might be obnoxious to rying on such trades and foreign commerce, punishment, for trading with infidels, who are which can be only done by companies and in law called 'perpetui inimici.' And therefore societies. I conceive, it is as penal for any of the king's 4. Such companies and societies ought to be subjects to trade with infidels, who are alien continued and supported upon the natural


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equity and justice, that no other persons should grant from the French king, Ann. 1604, for be permitted either to reap the profit, or to en- the sole trade into Canada, or New France ; danger the loss of what hath been begun, and for which he gives this reason, • Ne gravis been carried on by them, with great hazard esset ærario ad sublevandos navigationis illine and expence.

institutæ sumptus.' Now in as much as foreign trade can never Wbicb I conceive will go a great way in be of advantage to this kingdom, except the supporting all such trading companies as canbalance be kept equal between this and other pot be begun but by a public expence. countries; which can never be done, but by C. de Monopoliis, the probibition is expressly keeping up to proportionable rules for the re limited, • Nisi Privilegium vel alia consuetudo gulation thereof with the other countries : and in utilitatem publicam vergens resistat.' because, as I said before, the municipal laws of • Mercatura est res indifferens, in qua Mathis realm seem too scanty for that purpose, I ·gistratus, vel in vetando vel permittendo suam will therefore first consider how this question pro Commodo Reipub. potest interponere austands, as to the law of nations; and then how • toritatem.' Salmas. de Fæn. Trapezit. fol. it is considered by our law, producing autho. 236. * Hoc solum permissum est Regi ut possit rities in both to make good my assertion. And prohibere, ne aliis vendat salem.' Alciat. in because I thought the former more natural and Q. inter publica 17, in Fin. F. de Verb. Sign. effectual for the decision of this question, made as it is at this day practised in France, Thuan. me more inquisitive than otherwise I should lib. 5. bave been. Cujacius, lib. 16, Obser. 23, dis- * Sic in Sale Vendensi, Monopolia etiam tinguishes inter• Monopolia licita et illicita.' hodie in Italia licite exerceri è Superiorum

• Licitam Monopoliam,' says he, est, si permissione.' Scacca de Mercat. part. 4, N. certis personis vel quod potius est certo Col- so. • legio concesserit Princeps ut ei soli jus sit . Sic in Repub. Lubecensi, certis quibusdam « vendendæ certæ mercis;' and therefore re- • Mercatoribus ob prædictas rationes jus cocites a law of the emperors Theodosius and quendi sacchari, et salis speciali Privilegio Valentinian, by which certain governors of concessum est.' Marguard. lib. 4, c. 7, N. 29. commerce were appointed; · Edictali Lege And then as to the usage:

sancita, ut nulli Mercatori nisi ad designata · Hæc est communissima omnium, nullo • Joca temporibus præstitutis ad negotiationis prorsus reluctante Doctorum sententia, quod

sue species distrahendas passim liceret ac-jura hujusmodi Emporalia et Regalia possunt • cedere.'

acquiri non modo per Concessionem summi Carpzovius, in his Decisions before-men- Principis, sed etiam Consuetudine et Prætioned, lib. 2, Decis. 105, N. 13 and 14, makes -scriptione.' Lessius de Justitia, lib. 2. c. 22, this no new case ; Et certe (non est novum) Dub. 21. - modum commerciis (quæ tamen liberrima | By the imperial laws commerce and traffic

esse debent) poni ex causa nimirum publicæ have received several other limitations; some

utilitatis vel necessitatis, ex quo Monopolia times the subjects of the empire have been * alias prohibita jure subsistunt.

forbidden to trade to certain places, particularly And again, • Exempla haud rara sunt ubi named ; and in general by other constitutions, necessitate et Edicto principis Monopolia forbidden to export coin, gold, or arms, to any quandoque probari : Cominercia ad certas of the barbarous nations. personas et loca restringi videmus.'

And that the law or customs of nations is so, Idem, Decis. 4. N. 10. et N. 13. Nimirum the practice does evince. Exercitium ac permissio Monopoliorum à And first in Germany, where the law proPrincipis arbitrio dependet,' &c. Scacca de hibiteth ali munopolies; yet see how the law Commerciis, Q. 7, fol. 301, N. 15. • Hoc pon there stands in respect of our case. • procedit in Monopolio, autoritate Principis Circa Monopolia autem, quæ exercentur sive Reipub. contracto, quia sicut monopolia, adversus Cives, observandum, non esse illiprivatà autoritate contracta Reipub. sunt per- • citum, si pon cuivis quodvis negotiationis niciosa : Ita bæc quæ Legis Autoritate, ex genus exercere conceditur, sed illis duntaxat * justa contrabuntur, Causa Reipub. valde qui ad idem exercendum juxta instituta Civic utilia sunt.'

• tatis sibi jus quæriverunt, quemadmodum in Grotius de J. B. et P. lib. 2, cap. 12, sect. rebus pub. Europæis tecta quædam præ16. Monopolia non omnia cum Jure naturæstitisse oportet eum, qui mercatorium aut opipugnant: nam possunt interdum à summa • ficium aliquod tollere vult.' potestate permitti, justa de causa et pretio.' This as to Corporations.

He gives amongst others these two examples :

As to trading Societies thus : 1. From the history of Joseph, when he was * Sed et fieri potest ut a summa potestate Sovice-roy in Egypt; which is, says he, an il-cietati mercatorum indulgeatur certum genus lustrious instance of this matter.

• Mercium & certis locis advehere, exclusis re2. That under the Romans, the Alexan-liquis cujus privilegii concedendi variæ possunt drians had the sole trade of all Indian and • esse cause. Ethiopic commodities.

'1. Nam Commercia quæ ad loca remotissiSo Thuanus, lib. 32, gives an instance of ama instituerentur, priusquam rite stabiliantur



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magnos requirunt sumptus, & ancipiti eventui (some say eighty) towns and cities united theit initio sunt obnoxia ; ergo authoribus talium stocks, making Lubeck, Brunswick, Dantzic,

commerciorum cavendum est, ne quod ab and Cullen, the chief places of their residence; • ipsis constitutum magno cum periculo, & and so great was their trade and credit under sumptu sunt, alii gratis intercipiant.

that constitution, that many princes granted 2. Ac præterea ejusmodi Societates privi- them large privileges, and they kept courts by ·legiatæ opibus suis Reipub. exigente neces- their deputies and councils at Bergen. sitate, felicius possunt quam singula suc- By the laws of Spain, all monopolies are • currere.

forbidden and under the same penalties ap! 3. Videntur etiam meliori fide commercia pointed by the civil law : yet there also a right

tractari, ac majorem copiam mercium hoc may be acquired to a sole trade, by licence ob• modo posse advehi, neque de tot fraudibus et tained from the king, or by prescription. • compendiis cogitare necessum habent quorum Quinta partida Tit

. 7. leg. 2. membris hoc · lucrum in commune velut ærarium redactum Commercium Maritimum exclusis cæteris ad requalibus portionibus distribuitur. Puffen- 20. annos concederetur. Neque ulla re se • dorff de Jure Nature & Gentium. lib. 5. fol. magis prodidit Imperii odium Batavicæ nostris • 655.'

diebus, (Deo ita volente) constituti magnitudo A learned author does more at large de- et felicitas, quam Navigationum in Indias scribe it.

Orientales susciptarum constantia et successiis, It has been a question sometimes debated, ad quas ut ærario parceretur, societates iná. whether the society entered into by the Hans .stitute, cautumque tandem, ut sub ynam soTowus were not against law ? Quippe quod cietatem omnes coirent, quod alioque experi

speciem Monopoli præ se ferre videtur, ut mento constitisset, Aromatum pretia ab insu• certis locis merces emant confederati quæ laris ob emptorum frequentiam augeri, et cum • rursas pretio eo, quo volunt, vendant.' alii aliis prævertere, et lucrum ad se aliorum

This is the same objection now made against damno derivare satagerent, ubi concordia maxthe charter at the bar.

ima est opus, æmulationum et dissidii semina But the answer given was twofold, and will spargi.' come home to this case.

I come in the next place to make it appear, 1. That the emperor Charles 4. has given that as the law of nations, and the practice of bis approbation, and made it lawful by his all other countries, warrants the like grants authority.

and restrictions with the case'at the bar; so I 2. That they had continued in possession of conceive this charter of sole trade to the this society so long, that now the length of Indies, excluding others, is neither opposed by time (together with the prince's consent) re- the common law, or probibited by any act of moved all doubt whatsoever ; Carpzovius de parliament; but is supported by both, as will lege Regia Germanorum, cap. 6. sect. 10. more evidently appear hy the practice and And the charter now in question, and other constant usage in all times. charters of like nature granted by the kings of Therefore, though ingrossing be a crime, England, which I shall bave occasion to re- odious in the law, and punishable, yet all manmember by-and-bye, remain undisturbed with ner of ingrossing is not. out the least interruption, as long as this so- Therefore in the case of foreign trade, which ciety did before this question was stated. is only applicable to the case at the bar ; it was

And though, according to the rules of our resolved by all the judges of England, 3 Instit. laws, such a length of time does not obtain the 196. That merchants may buy beyond sea in credit of a prescription ; yet by the law of na- gross, and sell bere again in gross also. I say, tions, and the practices of all other countries that all monopolies are not unlawful. Gene which are only adapted for this purpose, it is rally speaking they are, and therefore, I will otherwise. · Præscriptio enim tam longi tem- admit the description of an unlawful monopo

poris vim legis obtinet, imo tollit omne ly made by my lord Coke, 3 Instit. 181. * vitium.'

A monopoly is an institution or allowance by • Præscriptio temporis immemorialis, quæ the king, by his grant, commission, or other • privilegiata est et ex vitioso etiam titulo wise, to any person or persons, bodies politic,

dominium et jus tribuit, omnesqne solemni- or corporate, of, or for the sole buying, selling, * tates, etiam extrinsecus, negotio accessisse, making, or using any thing; whereby any

præsumit tanti temporis antiquitas, num. 10 person or persons, body politic or corporate, . n. Atque omnem Monopolii respectum con- are sought to be restrained of any freedom or

suetudo immemorialis vel Cæsarum appro- liberty ibey had before, or hindered in their * batio excludit, n. 10. 26.

lawful trade. • Quia consuetudo immemorialis Cæsarum Now if the subjects of England had not, bescito et concessu hæc antiqua societas fulcitur, fore this grant, a freedom and liberty to trade omnis Monopolii respectus etiam minimus to the Indies, against the king's royal pleasure, læserat.' Marg. lib. 4. cap. 7. n. 50.

the charter at the bar will be no monopoly And as these Haus Towns were one of the within that rule. first corporations of trade I have read of, so Now that they had no such liberty, hath was it thought the interest of England to sup- been sufficiently proved by the several proport and encourage them. I find above sixty hibitions mentioued before; and the many

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more instances thereof cited by Mr. Attorney Notwithstanding which, there are established and Mr. Solicitor; and it would be very strange several. corporations for trade; I will naine that the king might probibit foreigners from but two. Anno. 1657, the French king makes coming here into England, and not prohibit his a grant of the sole fishery in bis dominions to own subjects from going into foreign countries. a society, excluding others upon pain that in

And it is not denied, but if the king should terlopers shall incur the penalty, de Confisproclaim a war with the Indians, that then it cation des Vaisseaux et Merchandizes et de would be a prohibition to all his subjects to dix mille Livres d'Amende.' Aytz. vol. 4. have any commerce with them ; nay, and he pag. 207. And in the year 1664, the Eastmight continue that war as long as he pleases ; | India Company, by bis declaration, with an and by that means all his subjects would be as exclusion to all others, like our East-Indiawell prevented of any of the commodities of Company, page 74, 75. that country; and also of exporting any of our In the United Provinces, the laws against commodities thither. So that surely this char- monopolies are the same, yet there always ter, with these restrictions, is much better than were several trading corporations exclusive of a total exclusion; and therefore foreign trade all others. 3 June 1621, in the charter of the is not like our home trade, to which the word Dutch West-India Company it is granted monopolies is properly applicable; for that thus: “ and in case any one shall go to, or ne. cannot be totally excluded for any time, though gotiate in any of the aforesaid places granted never so small, by any act of prerogative. to this Company, and without consent of the

Object. Ay, but, say the defendant's coun. said Company, it shall be upon pain and forsel, though the king can by his prerogative feiture of such ship and goods, as sball be probibit all trade to any country, upon such found to trade in those coasts and places, which great emergencies as war and plague, &c. yet being presently and on all sides, on the behalf to grant liberty to some, and exclude others, of the said Company, set upon, taken, and that makes the grant at the bar be thought a forfeited, shall be and remain to the use of the monopoly. Which is still begging the question, said Company," Aytz. vol. 1. p. 62. sect. 1. for if the king, by his prerogative, have the And in case such ships or goods be sold, power of restraining and disposing foreign or fly into lands or havens, the riggers and part trade, where acts of parliament have not in- owners thereof shall and may be distrained terposed; as by the precedents already cited I to the value of the said ship and goods. conceive clearly he has, as inherent to his That the aforesaid Company shall within the crown; therefore, as he may restrain all, said limits make governors, officers of war and so he may restrain any part by the same parity justice ; and for the other necessary services of reason.

for the preservation of the places, and mainIf the king proclaims a war with any coun- taining of good order, policy and justice, and try, wbich is a general prohibition of trade, and the advancement of their trade, shall appoint, should order that John a Style, or a dozen, or dispose and displace, and substitute others in any greater number of his subjects, &c. and give their places, as they shall find their affairs do them instructions to treat for a peace, and the require. persons so appointed should carry on a trade, All ships coming to any place where the would not Mr. Sandys, do you think, have Company have their garrison and government as much reason to murmur that he was none of shall not transport thence any men, goods, or those ambassadors; as he has now by being not money, without leave and consent of the councomprized within the charter ? And would it cil, upon the pain and forfeiture of six months not be thought an arrogancy and sauciness in wages, &c. him, to demand an account of the instruction In the grant to the Dutch Jadia Company given by the king to such ambassadors? Or | 20 Mar. 1602, that no body of what quality or durst he trade there till a peace were proclaimed condition soever, shall for the space of twenty, with that country?

one years pass Eastwards of the Cape of Good And the gloss of that law says, ' Mercatores Hope, upon forfeiture of ships and goods, Aytz. • non faciant inter Monopolium de re non ven- 1 vol. fol. 157. denda nisi pro certo pretio, vel de non excer- That the said Company may appoint govercendo officium nisi per eos recicpiatur offici- nors and officers of war and justice, and for ales et socios : Possunt tainen bæc facere other necessary services, for the preservation 'cum concensu et scientia Regis et contra of their places and maintenance of good order, • facientes perpetuo exulabunt, et eorum bona policy and justice. • Regi applicantur. Ex privilegio ergo Regis

The said officers to take the oath of suprepossunt similiter et consuetudine vel prescrip- macy to the states general; aud of fidelity, * tione, quia quod privilegio acquiritur, etiam as to what concerns trade and traffic, to the præscriptione acquiri potest.'.

Company, And there-quotes ubi dicitur, quod potest And afterwards. the 9th of Sept. 1606, a concedi privilegium; quod quis solus piscetur Placart was published, that nobody, directly or . in certa parte Maris, et aliis potest prohiberi.' indirectly, shall pass or trade beyond the Cape

In France Monopolies are prohibited also, of Good Hope, upon pain of death, and for• Sub pæna Confiscationis corporis et bonorum feiture of their ships or goods, which shall be indici.' Const. Fr. 1, Art. 191.

found to have done or to do so. And though

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they should absent themselves out of the United | the Still-yards for their residence, which they Provinces, yet the sentence shall go on, and be enjoyed near 300 years, managing their trade decreed and executed, with the present confis- by an alderman and counsel, called The Guild cation and selling of their goods, actions, and of the Hans, ingrossing the trade of England credits.

for grain, cables, masts, pitch, tar, &c. and Idem, page 158. And surely the Dutch under that colour the Jacobsons at this day have been always by ns esteemed as our great claim several privileges. est and most dangerous rivals in trade.

It is observed by many historians, that the And as for the reason and necessity of es- most flourishing trades bave been begun by tablishing this way of trading by companies, see united stocks and policies, the judgment of Thuanus, lib. Hist. 124 and In this kingdom a patent was first obtained 130, where making mention of the East-Indies, for the erecting the staple, from E. 3, before he saith thus : Diversis itineribus bujus any act of parliament intermeddled in that Regionis Incolarumque Ingeniis cognitis tanta trade, and proceeded under several regulations

frequentiâ à privatis hæc ipsa Navigatio et till the time of queen Elizabeth. In the book • Commercium exercitum fuit, ut alter alterum I cited before, Malyu's Lex Mercatoria, fol. • fere ivisset perditum. Ad obviandum itaque 150. says, This company of merchants are · huic malo visum fuit, An. 1602. quibusdam above 400 years standing, as that book reckons • hujus Navigationis mercatoribus, præpo- from 1248, when the said merchants obtained tentum ordinum consensu certum constituere privileges of John duke of Brabant, and were corpus, cujus tantummodo, &c.'

called the brotherhood of St. Thomas Becket of The Indians being infidels are by law es-. Canterbury: which were confirmed by king E. teemed common enemies ; and the opinion of 3, H. 4; H. 5, H. 6, E. 4, R. 3, H. 7, who my lord Coke in Michelborne's case, I think, gave them the name of Merchant- Adventurers; therefore, to be law, notwithstanding the ob- and after him confirmed by H. 8, £. 6, Q. M. jections that have been made against it, which Q. Eliz. and king James, not without many pone of our books warrant; now the king by enemies and opposers; especially, says that his charter makes the plaintiffs as it were his book, of late taxing them to be monopolies, and ambassadors to concert a peace, and Mr. San- unprofitable to the commonwealth, being that dys murmurs because he is not one of them. all our cloths are not dressed and dyed in Eng

The king may grant a fair or market to land; yet it still prevailed, as being thought every subject he has; bnt because he grants for the public good. that privilege to some of his suhjects, have And it is observable, that queen Elizabeth the rest any just ground of complaint ? be- did not only confirm what was done by her cause the king may pardon every offender, predecessors, but augmented and greatly enbut will not pardon any highway man now larged the privileges of this ancient company; in Newgate, "must those gaol-birds, there and confirmed the charter of the Muscovy fore, think themselves injured in their liberty company, granted by Philip and Mary'; and set and property? because the king granted to his up several other companies, as that of Exeter, town of Hall, that no other ships should be mentioned at the bar; the East-India comthere freighted for foreign parts, till the ships pany, and the Levant and the Eastland comof that town were first freighted; as he did, pany. And although that ancient and bene. , Rot. Claus. 41 E. 3, memb. 25. did London, ficial company of staplers was often opposed by Dover, or any other town of trade complain? particular persons, and complained of as a moWould any of these gentlemen that contend for nopoly intrenching upon the liberty of the subthis liberty of trade, adventure with their for. ject, in several parliaments, in the time of H. 4, tudes to Algiers, and when they are seized H.7, E. 6, and queen Mary: yet all parties upon by the Algerincs, tell them we are Eng- being heard, these complaints were fully anJishmen, and we bave by the common law of swered, and the Company's privileges ratified England, and many statutes of our kingdom, and enlarged. which support the liberty of the subject, a free- Again, in queen Elizabeth's time, the clotbiers dom to trade wherever we please? Or would having prevailed against the company, the not they rather say, we bave a pass from the clothing countries were almost quickly roined, king of England, and rely upon that, which and reduced to that extremity, that in 29 Eliz. presumes treaties, leagues, and truces between the lords of the council sent for the members of princes; and in case that will not prevail, that Company, desiring them to reassume their ihe king will see them righted ? And in the privileges, and chearfully to proceed in their charter that is now before us, there is a parti- society'; with assurance of all countenance and cular restriction and limitation of trade to any assistance from the government. And in the prince in amity with our king. Now as the reign of king James, after several interlopers constant usage and practice of other countries bad endeavoured to destroy the Company, the warrants such societies as these, so does ours king published his proclamation to restore the too: For, as I said, the Hans towns were some Company to its ancient privileges. of the first corporations of trade that we read of So did king Charles 1, 7tli Dcc. 1634, rein history; so was it thought the interest of citing, Whereas we have taken into our England to support and encourage them. priocely consideration the mapifold benefits King H. 3, gave them great privileges, and ibat redouad to this kingdom; and finding

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