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547) STATE TRIALS, 36 CHARLES II. 1684.- The Great Case of Monopolies: [548

how much order and government will con- | the perusal of her attorney and solicitor, duce to the encrease and advancement of the learned men in our profession. In the beginsame, we have thought fit, with the advice ning of her reign my lord chief-baron Weston

of our privy-council,' &c. There he gives was solicitor, sir Gilbert Gerrard attorneyan establishinent to the Company, and prohi- general, and passed those patents both to the bits 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 shall infiict.

the lord-chancellor Egerton solicitor, in wbose Since this, it may be worth consideration, time some few such charters were also granted, whether the breaking of this Company, has like to this at the bar. And then my lord Coke not occasioned the great decay of our trade in was attorney-general, and my lord chief-baron wool : it being agreeable to reason, that as no Fleming solicitor-general, who approved there. Jaw can be effectual without courts of justice of; and it is observable, that in the 43 and 44 to put them in execution; nor a straggling of the queen, the parliament took notice of army subsist without discipline: so a straggling many patents of monopolies, as it appears by trade managed by particular persons, whilst the book cited at the bar; Townsend's Colevery one strives to advance his own private lections, 244 and 245. The parliament seemed interest, will ruin the trade in general, espe- 1 to be as high as ever they were in any age becially such a hazardous trade as this to the fore, and particularly were incensed by those East-Indies, which already hath been so patents. A list of all were brought in by Mr. chargeable, and can only be prevented by the Secretary Cecil

, that were thought grievous or conduct and government of a public society : prejudicial to the commonwealth ; and though and surely to look after and settle these mat- there were a catalogue of forty or fifty, amongst ters, properly belongs to the care and prudence whom that of Darcy is one, yet the parliaof our governors.

ment, nor none other, complained of any Now I shall observe, how the practice has charter granted to corporations, but they conbeen both in queen Elizabeth's time, and ever tinued undisturbed. And by the way it is not since, and that although many charters like amiss to observe, that Darcy's patent was not ours at the bar havo been granted; and none immediately damned in parliament, but re-, ever demanded by a judgment in Westminster. ferred to take its fate in Westminster-ball; the hall, or so much as objected against, save only great reason that guided that judgment was, that of the Canary patent, till this cause at the restraint that was put upon the home trade; the bar : and though several attempts have and so it appears in More's Reports, 672. And been made both in parliament, and in the thus stood these charters; the China charter, courts at Westminster-hall, against manopo- the Turkey company, the Barbary company, lies; yet this charter, and others of the like the Guinea company, all charters of sole trade, nature, were never looked upon under that excluding others, remained in trade during all character. For instance,

queen Elizabeth's time. 1. A charter was granted 2 Eliz. to the But in the third year of king James was the merchants of Exeter for the sole trade to first act made for opening a general trade to 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-ball, as appears by the preamble to tion that was inade against it in parliament. that act; nor does that act call those charters King Edward 6, and king Philip and Mary, monopolies, or open a free trade to any other having granted a charter like ours to the parts of the world, but leaves all charters of Russia company, which continued in peace till foreign trade, save to Spain, Portugal, and the eighth of queen Elizabeth ; when the par- France, to remain as they did before. And in liament taking notice of that patent, thougbt the 4th of Jac. cap. 9, there is notice taken fit to confirni it with all the commendations particularly of the charter granted to the Exeimaginable; and was so far from thinking it a ter merchants of the sole trade to France; monopoiy, that it says, the commonwealth be- and because it was thought to be damned by fore that time had received great advantages the general words of that statute E. 3, yet it is by it; and grants, and inflicts greater and there aracted and declared, that the said staother penalties than were or could be inflicted tute of patents, neither did nor should dissolve, by the letters patept: and it is observable, that annihilate or impeach the said charter, or the there were sonie interlopers upon that trade in said company in any of their privileges, libertbuse days, and had been liable to the for- ties, or immunities, granted unto them by the feitures inflicted by those letters patent, and said charter, any thing contained in that gewere therefore forced to apply themselves to neral act to the contrary notwithstanding ; that parliament, and did obtain a special pro- and from this act of parliameut I observe two viso to excuse tbose forfeitures, which, bad things: not that act of parliament been made, they had 1. That the parliament thought that the been liable to; which I take to be an authority charter to Exeter for sole trade to France, exfuli, as to the case at the bar.

clusive of others, was for the public benefit and Queen Elizabeib, during her reign, granted weal of that city. several charters of the like nature, which passed II. That the letters patent were good in


law, and did not want the assistance of an act that the parlianrent then thought a general of parliament to support them; for that act , saving sufficient to support those charters that does not confirm those letters patent, but pro- were tben in being, to corporations for trade vides only, that the statute 3 Jac. should not and merchandize ; but made particular proby general words be thought to impeach or visos for the saving of patents for inland condestroy them. Now had the parliament thought modities, viz. such as salt, gunpowder, ordthe charter void or infirm, they might have nance, shot, and the like. confirmed or strengthened it, as the Russia So that this company was in full possession patent was ; but they concluded, that had it of their privilege of sole trade, exclusive of not been for the statute of Tertio, the charter ochers, all king James's and king Charles 1st's was good to all intents and purposes : and this time, till all the prerogatives of the crown were I take to be full authority in the case at the invaded, and the crowned head too was taken bar. But to proceed, the Greenland patent off' by traitors and rebels. But the providence för sole tishing, exclusive of others, granted by of God having restored us our king, and requeen Elizabeth, is held good, Rolls, Part. 5, invested him with all his undoubied prerogafol. 3. Taylors of Ipswich's case, and the case tives, as well as restored us to our ancient rights of the abbot of Westminster, is agreed to be and privileges, and scarce, as I may say, warm

in Darcy's case, More, 673, by Mr. in his throne, but amongst the other consi. Justice Dodderidge: and by the way be gives derations that he had for the public weal of his good advice to all persons that dispute the subjects, he considers the public advantage of King's prerogative; and for the friendship. I this kingdom arising by trade, and amongst bear to Mr. Sandys, and others that are now in them, one of his first thoughts are fixed upon court, and I think need the advice, I shall read this Company. For 3d of April, 1661, he by the very words of the book : he that hews his letters patent taking notice of the charters above his hands, chips will fall into his eyes ; of queen Elizabeth, and king James, granted • Et qui Majestatem scrutatur principis, oppri- to the East-India Company, and of the inju• metur splendore ejus.'

ries that were done to them by the late trouIn king James's time, many grants, like bles; with the advice of his council, and apours, were made, but particularly in 7 Jac. the probation of Mr. Attorney Palmer, and my patent granted to the East-India Company by lord-chancellor Finclı, he granted and con. queen Elizabeth, was, by the advice of her firmed to them all their privileyes. The 27tli council, as well as by my lord Hobart, then of May, in the 20th of his reign, lord-chanattorney general, and sir Francis Bacon, soli- cellor Finch being 'attorney, and my lordcitor-general, confirmed and allowed with the keeper, that now is, solicitor, he confirms this same clauses as the charter at the bar; and so charter; and grants to the East India Com.. remained undisturbed and uninterrupted all king pany other privileges, by another charter in the James's reign, and was not thought to be any 28tl year of his reign ; at which time the whit touched or aimed at by the proviso in the Lord-Keeper was attorney, and sir William statute, 43 Eliz. cap. 1, sect. 9, that act only Jones, solicitor ; be confirms the former, and pointing at the monopoly patents complained grants more privileges: and in the 25th year of in that parliament of 43 of the queen, which of his reign, by the charter now in question, I mentioned before. Then comes the statute passed with the approbation of the present so much insisted on by the defendant's counsel, attorney and solicitor, men of great ability in commonly called the statute of monopolies, their professions, and of whom, were they not Stat. 21

Jac. cap. 3, which certainly doih not present, I should say much more; the charat all affect the case at the bar. For first, this ter to this company was confirmed with addicharter is not a general grant for the sole buy- tional privileges. ing, seling, making, using of any thing within Nor' has this charter passed only the approthis realın, which are the very words of the bation of his majesty and council, since his acts : nor does this charter give the East-India happy restoration, but the parliament has Company licence or toleration to do, use, or likewise taken notice of it; the statute 14 exercise any thing against the tenor or purport Car. 2, cap. 14, takes notice of it to be of great of any law or statute, which are the only things advantage to the public. The stat. of the 2915 provided against by that act. But the parlia of this king for poll-money, taxes them with ment then seemed to take the same general twenty shillings for every hundred pound in cardhof all such charters as this at the bar, as stock. In the great case between Skinner and the parliament did in s Jac. of that particular the East-India Company, the House of Comcharter of Exeter ; and therefore, to the end mons defended them, even to an eruption bethat those words in the beginning of this act of tween the two houses. monopolies might not be thought to extend to Mr. Jenks and some other linnen-drapers charters, to corporations for trade, there is a and tradesmen of London, taking the advanproviso, sect. 9, that that act should not extend tage of the beats that too frequently possessed to any corporations, companies, or fellowships, the House of Commons of late years, espe&c. erected for the maintainance, enlargement, cially against the point of prerogative, did or ordering any trade or merchandize, but furiously attack the East-India Company, but leaves the same as they were before that act, without any success and this company was without any immutation : and it is observable, pever assaulted in Westminster-Hali till this

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cause at the bar. I cannot help therefore this reserved to himself a power to destroy and observation, that as the king by his charter alter the whole charter, or any part thereof, 1667, takes notice, that the charters granted by so as to put it into a way of regulation instead of queen Elizabeth and king James remained a joint-stock, in such manner as he sball in his uninterrupted till the late rebellion ; so the great wisdom think fit; therefore it becomes interlopers against the king's prerogative in us ir duty and modesty to wait till we receive this particular, and the horrid conspirators bis further roy al pleasure therein. And whereas against the king's life in this last hellish con- it was objected at the bar, because the king spiracy, first appeared in Westminster-Hall cannot lay any imposition upon foreign trade, about the same time.

therefore he cannot restrain it: As to the objections I have not yet given I do not know to what end that objection was answer to, I think they are but few my lord made, because it does not affect the question at Coke's opinion, cited by Mr. Pollexfen, Inst. the bar ; but lest it may obtain the effect, that 510, where my lord observes new things, I presume was aimed at, I think it is not amiss which with fair pretences prove hurtful to the toʻsay, that even at this day there is much more commonwealth ; and amongst them reckons, may be said in the maintenance of the king's that new corporations trading into foreign parts prerogative in Westminster-Hall, in that case, and at home, which under the fair pretences than can be offered against his prerogative in of order and government, in conclusion tend this. But in as much as that and several other to the bindrance of trade and traffic, and in objections against the charter proceeded from the end produce monopolies, does not at all an unreasonable, as well as unmanperly misconcern the case at the bar. For this charter trust they have of the crown, I cannot but rethat hath continued for 100 years without member that his sacred majesty was not so any interruption till of late, can neither be mistrustful of them. For he since his restauthought a new corporation or hindrance of ration has bestowed upon bis subjects more trade ; and sir Edward Coke, when he was than all his predecessors, put them all together, attorney general, and past this charter, was since the conquest, ever did. Nay, he in a as learved in the law, as he was when he moment frankly bestowed upon us more than published that book, and was turned out of ever he desires he should be trusted with again, being chiet-jastice, did not think this charter for by his act of indemnity he bestowed upon needed that caution.

his subjects their lives, liberties and estates, As to the case of the Canary patent between which were all justly and legally forfeited to Horn and Ivy, that cannot affect the case at him by the late rebellion ; the consideration the bar.

whereof will prevent all tears and jealousies, 1. For' first, the judgment in that case was and promote in all loyal hearts a firm resolugiven upon the point of pleading, and not upon tion to sacrifice their lives and fortunes, so the validity of the patent.

freely bestowed upon us by him, to maintain II. That patent was in perfect opposition to the crown and just prerogatives thereof; so the statute, 3 Jac. that opened a free trade to that it may have a perpetual continuance in that Spain, and therefore could not be restrained by royal family, in a lawtul succession ; which ! the king's letters patent, but there is no such heartily pray may be so long as the sun and . objection to our case.

moon endures. The counsel that argued for the defendant From what has been said, I hope it doth seemed to allow tbe charters to the Virginia, plainly appear the: since the law of this land, Turky, and Eastland Companies, which are ex- and the law of nature and nations, allow the clusive of others, to be good ; because they power of making companies to manage traffic, are managed by a regulation, and not by a exciusire to all others to be in the prince, that joint-stock, which surely can make no differ- this is reckoned to be inter Jura Regalia ;' ence: for it is a grant of a sole trade to them, that no act of parliament does restrain this preexclusive of others, as well as the case at the rogative; that the practice of all Europe bas bar. And it is as hard :o get into the Turky been accordingly; that particularly such comCompany, as it is into this ; and may be more panies have been erected in England, and those chargeable: for you cannot be a member of companies have been in quiet possession of the Turky Company, but you must be a free their privileges for such a number of years; man of the city of London ; and makes you that they have passed the approbation of many liable to all the great offices of charge in that learned men ; that they have been thought for government. But a freedom of the East-India the public advantage of the nation, by so many Company may be purchased at a much easier kings and princes, with the advice of their rate; the members of the East-India Com- council, both in and out of parliament; that all pany are as visible as those of the Turky. And statutes and authorities of law that we can meet thongh it was said, the East-India Company with in our books affirm it, and none that I can were sometimes invisible, yet, were the Turky meet with oppose it. Company infected with so many interlopers as That the East-India company have solely the East - India Company have, they would run the hazard, and been at great expences, pot appear so glorious and splendid ' as they In discovering places, now do, and as I heartily wish they may long Erecting forts, and keeping forces, continue. But the king by this charter bas Settling factories,

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And making leagues and treatics abroad; than the grantee of a fair, market, or any other It would be against natural justice and franchise. equity, (which noʻmunicipal law can take away)

2. The action is brought, and grounded upon for otbers to reap the benefit and advantage of the grant of the sole and entire trade; whích, all this :

as I conceive is a franchise the king may Especially since all this has been occasioned grant, and is like tbe case of new inventions ; by an act of the public, and by the just prero- upon which letters patent actions are brought gative of the crawn, under which they claim. by every day's experience; and the prohibiting

So that now, supposing the matter had been clause is added, only, to make the thing more doubtful at the beginning (as yet the contrary is notorious : and that interlopers, in case they evident), yet atter so many years undisputed should be prosecuted at the king's suit, should and uninterrupted prerogative of the king, and be more inexcusable. And until you can imathe possession of the companies pursuant there- give there be as many East-India Companies as unto; and yet the laws having always been there are commoners and scbool-masters in open to any subjects who conceived themselves England, Mary's case, Coke 9. can never be grieved ; that speech which Josephus records of thought an objection. As to the objection in king Agrippa, to those Jews who after many the 11 Rep. 88. Rolls Abridg: part 1. p. 106. years endeavoured to recover their lost pretencē, Darcy's case, that admitting the grant or dismay be applied to these clamorous interlo- pensation to Darcy had been good, for the sole pers :

importing of foreign cards : yet that being • Intempestivum est nunc libertatem concu- only a dispensation to the stat. of Ed. 4. and . piscere, olim ne amitteretur certatum opor: did only exclude Darcy from the penalty of • tuit. Non amantes libertatis discendi estis, sed that act, he could not maintain the action : • subditi contumaces.'

but if in case that grant had vested an interest, And so the Romans answered Antiochus (to as our grant at the bar does, he might have shew the injustice of his demands), · That he brought an action, as my lord Rolls says in • required those cities which his predecessors the next paragraph, may be collected out of • for so many years bad never enjoyed." Darcy's case,

And queen Elizabeth pleaded against the king of Denmark, for the rights of fishing upon the are full authorities in the case at the bar : and

The case upon patents of new inventions, coasts of Norway and New-Island, That pei

so is that case of the abbot of Westminster, ther his great-grandfather, grandfather, nor father, had exacted any thing for it; and there wherein the grant of the market for thirty days, fore concluded it to be unjust. Cambd. Eliz. the action. And the Salisbury man that brought

exclusive of others, is particularly set forth in sub. ann. 1600. So that I conclude the first, and, as I con

cloth to London, and sold the same contrary ceive the only point in this case,' that letters to that charter, is prosecuted in an action of patent which gave licence and liberty to the trespass upon the case, at the suit of the abbot ; plaintiffs to exercise their sole trade to the and the writ concludes, (supposing the grant Indies, within the limits of their grant, ex

• In nostri contemptum et prædicti Abbagood)

tisgrave damnum ac Fr. et libertatum suarum clusive of all others, is a good grant in law. 2. I do conceive, that the defendant trading is an authority full as to this point.

prædictarum læsionem manifestam ;' wbich to the Indies, contrary to this charter, may be punished by information at the suit of the Upon the whole matter, I am of the same king; and that this action by the plaintiffs is opinion with my brothers; and do conceive, also well brought ; but in as much as I have that that grant to the plaintiffs of the sole trade detained you so long upon the first point, I to the Indies, exclusive of others, is a good shall trespass upon your patience but a few grant, and that the action is well brought: words to this.

1. Therefore I conceive, the plaintiff need And therefore let the Plaintiff take his not alledge any special damage, no more Judgment.

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313. 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

Elam Mossam, Plaintiff; 7. Dame Theodosia which are about three or four hundred tene-
Ivy, Defendant.

ments near Radcliffe, in Shadwell parish ; and

the ground thereof is, say we, the ancient inThis day this cause came to be tried at the heritance of the church of St. Paul's, who bar of the Court of King's Bench, by a special have had the possession thereof for four or five jury of the county of Middlesex; whose names hundred years t: We shall prove leases down follow: Sir Reginald Forster, bart. sir John for some hundreds of years, till we come to that Cutler, kt. and bart. sir Goddard Nelthorp, made to the lessor of the plaintiff; under whom bart. sir Michael Heneage, knt. sir William we claim. We will begin with the last lease Gulston, knt. sir Richard Downton, kat. Rich- of deau Stillingfieet, 30 Sept. 1678, upon the ard Reynell, Ralph Bucknall, Thomas Aus- surrender of the lease made by dean Sancroft, tin, Joseph Dawson, Thomas Cleve, Richard now lord archbishop of Canterbury. White, esquires.

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 bim 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 Willan. Yes, Sir. hath a good title to the tenements in question; An Indenture quadripartite made the 25th of

* “ Jefferies,” says Mr. Fox," was a man that did not become the bar, much less the entirely agreeable to the temper and suitable bench. He was not learned in his profession, to the purposes of the present government” and his eloquence, though viciously copious, [that of James the second.)." He was thought yet was neither correct nor agreeable.” not to be very learned in his profession ; but what might be wanting in knowledge, he tions on 4 Hen. 7, observes that bishop Burnet

Mr. Barrington, in a Note to his Observamade up in positiveness, and indeed whatever might be the difficulties in questions be

“ is generally very accurate with regard to tween one subject and another, the fashion points of this sort" (legal history,]" and it is able doctrine which prevailed at that time, of not improbable that his history was revised by supporting the king's prerogative in its full his great patron sir Harbottle Grimstone, who

was Master of the Rolls." extent, and without restriction or limitation, rendered, to such as espoused it, all that

This conjecture cannot be true of any part branch of law, which is called constitu- of Burnet's History of the reigns of James 2d, tional, extremely easy and simple. He was died about Christmas 1684, at the age of 82,

king William, or queen Anne, for Grimstone as submissive and mean to those above him, as he was haughty and insolent to

see 1 Own Times, 597.] His being likewise those who were in any degree in his power; him to the acquaintance of the great lawyers

chaplain to sir Harbottle must have introduced and if in his own conduct he did not exbibit a of the time: in his history he occasionally very nice regard for morality, or even for decency, he never failed to animadvert gives us their characters. In the trial now, upon, and to punish the most slight deviation before us Jefferies displays considerable acute. in others, with the utmost severity, especially ness, accompanied by his usual insolence and if they were persons whom he suspected

coarseness. There is a story that having to be no favourites of the court." Hist. of the commenced the profession of the law in the

unsettled times between the death of Charles Reign of James 2., ch. 2.

the First and the Restoration of Charles the Burnet had before said, Own Times, vol. 1.

Second, Jefferies had never been regularly

called to the bar. p. 567.“ All people were apprehensive of very black designs when they saw Jefferies made + " The state of the question being, Whether Lord Chief Justice, who was scandalously the seven acres in Shadwell, was part of the vicious, and was drunk every day, besides a ancient inheritance of the dean of St. Paul's to drunkenness of fury in his temper that looked whom Mr. Neale was lessee, and so now lessor like enthusiasm. He did not consider the de- of the plaintiff'; or part of Wapping marsh, cencies of his post : nor did he so much as af- that had been drained by one Vanderdelf, and fect to seem impartial as became a judge, but after sold to the Stepkins's under whom the run out upon all occasions into declamations lady Ivy did claim.” Former Edit.

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