Of trade 1. In general. 2. In particular. 3. Domestick. 4. Foreign. 5. The East-India. 6. The African. 7. The Turky. 8. The Spanish. 9. The Hamburgh. 10. The Portugal. 11. The Italian. 12. The Dutch. 13. The Russia. 14. The Greenland. 15. The Swedeland. 16. The Denmark. 17. The Irish. 18. The Scotland. 19. The plantation. 20. The French, &c. Also, of coyn. Bullion. Of improving our woollen manufacture. To prevent exporting wooll. Of ways and means to increase our riches, &c. By J.P. esq; to which is annex'd, the argument of the late Lord Chief Justice Pollexphen, upon an action of the case, brought by the East-India Company against Mr. Sands an interloper.

De Termino Paschae, Anno xxxvi. Caroli II. Regis: In Banco Regis.

Gubernator' & Socie∣tas Mercator de Lon∣don in Oriental' Indi∣am negotiant'. against Tho. Sands.

AN Action upon the Case, where∣in the Plaintiff declares, That, Our Lord the King, by his Letters Patents, reciting that the Company of Merchants trading to the East-Indies, have been long a Corporation, and en∣joyed divers Liberties and Privileges, by divers Grants from Queen Elizabeth and King James.

That the King was informed, that divers Inconveniences and Disorders were committed, to the Prejudice of the Company; at the Petition of the Company, the King grants, ratifies, and confirms to the Governour and

Company of Merchants of London, trading to the East Indies,

That they should for ever be a Body-Politique by the Name of Guber∣natoris & Societatis Mercator' de London in Oriental' Indiam negoti∣ant'.

Ac eos per Nomen Gubernatoris & So∣cietatis Mercator' in Oriental' In∣diam negotiant' Ʋnum Corpus Cor∣poral' & politicum in facto & nomi∣ne realiter in perpetuum fecit, ordi∣navit, constituit, stabilivit, & de∣claravit per Literas Patentes illas.

With Powers to purchase, sue, and be sued by the Name of Governor and Society of Merchants of Lon∣don, &c.

And that they, and all those that then were, or should be of the said Company; and all their Sons at their Ages of 21 or more; and all their Apprentices, Factors, and Servants, who should be im∣ployed by the Company, in the said Trade, to the East Indies, beyond the Seas, might traffick and use the Trade of Merchan∣dize by Sea, by the Passages and

Ways discovered to the East-Indies.

Beyond the Cape de Bona Speranza, unto the Straits of Magellan, in such Order, Manner and Form, Freedom and Condition, as from time to time, at any publick As∣sembly or Court, holden by or before the said Governor and Company; by or betwixt them of the said Company, or the greater Part of them present at such Assembly or Court, shall be limited or agreed, and not other∣wise; any Diversity of Religion, notwithstanding; so as the Trade be not with any Christian Prince or State in League with our King, who shall not accept of their Commerce, but refuse to accept the same.

And that the Company, their Fa∣ctors, Servants, and Assigns in the Trade of Merchandize, shall for ever have the whole and sole Trade and Traffick, and the whole Freedom, Use and Pri∣vilege of trading and merchan∣dizing, to and from the East-In∣dies,

in such manner as before mentioned.

And that the East-Indies, or the Isles and Places thereof, shall not be used or haunted by any of the King's Subjects, against the true Intent of the Letters Patents.

And by the same Letters Patents, the King commands all his Sub∣jects, that none of them shall vi∣sit or frequent, or trade in the East-Indies, unless with the Li∣cence and Agreement with the Company, first had under their common Seal.

That by Vertue of this Patent, the Plaintiffs have been, and still are a Corporation, trading to the East-Indies, with the Inhabitants thereof; who, at the Time of the Letters Patents grant∣ed, were not, nor yet are Christians, nor Subjects of any Christian Prince or State, but Infidels, Enemies, and Ad∣versaries of the Christian Faith: And that their Trade hath been to the Pro∣fit of the whole Kingdom, and En∣crease of the King's Customs. That this Trade cannot be carried on but by a Company or Body Politick.

And that from the making the Let∣ters Patents, they have had, and ought to have had the sole Trade there.

That the Defendant Sands, being a Subject of the King's, but no Member of the Company, nor being Son, Fa∣ctor, Apprentice, or Servant, or As∣signee after the Letters Patents (viz.) 19 Jan. 34. Car. nunc, to the East-Indies, beyond the Cape de Bona Speranza, and this Side the Straits of Magellan, in cer∣tain Places called Atcheon, Mecklapaton, and Porto Novo, with a Ship called the Expectation, hath traded and merchan∣dized.

And divers Wares in the said Ship, to these Places transported, there bar∣gained and sold, and other Merchan∣dize there bought, and into this King∣dom Imported, without the Licence, and against the Will of the Company, in eorum praejudicium & depauperationem manifestam, and against the Form of the Letters Patents, ad damnum of the Company, 1000 l.

Plea. The Defendant demands Oyer of the Letters Patents, which are set forth in haec verba. And thereby,

after the naming the Governor, the 24 and constituting a general Court of Assem∣bly, and the Powers of Elections of their Officers.

That the King doth grant, as in the Declaration, so far as there mentioned.

But then in the Clause of Grant of sole Trade, at the End thereof, they have omitted this,

And that the said Governour and Company, and every particular and several Person that now is, or hereafter shall be of the Com∣pany, shall have full and free Liberty and Licence, in form aforesaid, to and from the said East-Indies, according to the Or∣ders, Ordinances and Agree∣ments hereafter to be made at their publick Courts.

In the Recital of the Clause prohi∣biting others to trade without Licence under the common Seal, they leave out a Part of that Clause, which is this.

Upon Pain that every such Person that shall trade to or from the East-Indies, shall incur the Forfeiture of his Merchandize he shall bring into the King's Dominions, con∣trary

to the Purport of this Char∣ter; or which the Company shall find in the East-Indies, where they traffick; and also of the Ship wherein the Merchandizes are transported, one half to the King, the other to the Company, and Imprisonment of the Offender.

Then follows a Clause of Grant.

That the Company, for any Consi∣deration or Benefit to be taken to their own Use, may grant Licence to any Stranger or other, to trade to or from the Indies.

Then the King grants to the Com∣pany,

That the King will not, without the Consent of the Company, give Licence to any to or from those Places.

Then there is a Clause,

That none of the Company shall have a Vote in the general Assem∣bly, unless he have 500 l. in the Stock.

And after Oyer, the Defendant pleads the Statute of the 5 E. 3. c. whereby 'tis enacted,

That the Seas shall be open for all Merchants to pass with their Mer∣chandizes wherever they please.

And that he, by Vertue thereof, did trade as in the Declaration alledged, prout ei bene licuit.

To this the Plaintiff hath demurr'd.

Before I come to state the Points and Questions, upon which this Question truly depends; I desire to shew what are not the Points or Questions in this Case.

1. It is not the Question, whether the King, by Law, can restrain any of his Subjects to go out of the Kingdom.

For the King may so do, and this without Distinction of Christian or In∣fidel Country, pro hic & nunc, as Oc∣casion may be.

2. It is not the Question, whether the King can restrain all his Subjects to such a Country or City.

It may be done upon particular Oc∣casions, as of War or Plague.

But from hence to argue, that the King can grant you and your Succes∣sors for ever, a sole Trade to such a Country or Place, excluding all other

his Subjects, except with your Leave or Licence: Because he can restrain this or that Subject, therefore he can grant a sole Trade to the Plaintiff, and exclude all others, but you, and such as you, licence for ever: Because he can, upon particular Occasions, as of War or Plague, restrain or prohibit his Subjects to go or trade to such a City or Country: That when there is nei∣ther Plague nor War, the King should grant a sole Trade to any particular Person, whether Body Politick or Na∣tural, and restrain all others for ever.

Can this be by the Law done?

If this Foundation will warrant it, though in this Case this be with Infi∣dels; and upon that ground, some difference imagined betwixt an Infidel and a Christian Country: Yet remem∣ber your Reason or Foundation doth not distinguish or make a Difference.

For if because the King hath Power to restrain or prohibit Subjects to go out of the Realm: Or by Occasion of War or Plague, all his Subjects from tra∣ding to such a City or Country; since this Power (you must agree) extends as well to Christian as Infidel City or Country;

The granting of sole Trade to one Subject or Body Politick, and restrain∣ing all others, is the same; whether it be to Christian or Infidel City or Coun∣try.

And when you cite the of Statute 3 Jacc. 6. which enacts,

That the King's Subjects shall free∣ly trade to Spain and Portugal, not∣withstanding the Charters of Incor∣poration granted to some Merchants, and the Prohibitions in those Charters:

And from thence argue, that be∣cause there were Prohibitions or Re∣straints by Charters, as to those Coun∣tries which were Christian, therefore such a sole Trade to an Infidel Country is well granted:

You must have it admitted, that such a Grant to those Countries is good and legal; or else you argue from that which you grant not to be lawful, to prove another like Grant to be lawful. Or at least by the same Arguments and Reasons maintain such a Grant of sole Trade to be good, whether made to Christian or Infidel Country.

If then it not being the Point or Que∣stion in this Case,

Whether the King can restrain his Subjects from going beyond the Seas? Nor,

Whether the King can lawfully re∣strain his Subjects to trade to a particu∣lar Country or Place, whether Christi∣an or Infidel?

Then the Questions plainly and short∣ly are,

1. Whether this Grant of sole Trade to the Plaintiffs, be a good Grant or not?

2. Supposing that it should be, then whether this Action be maintainable or not?

1. By the Common Law, Trade is free and open for the King's Subjects. And this I shall endeavour to shew from Authorities.

Commercium jure Gentium commune esse debet & non in Monopolium & priva∣tum paululorum questum convertendum. Iniquum est, aliis permittere, aliis inhibe∣bere Mercaturam.

The Taylers of Ipswich's Case,

That no Trade, Mechanick nor Merchant, can be hindered by the Patent of the King;

a Patent that only 100 Persons shall use such a Trade, is void.

Note, that by the common Law, every Man may go out of the Realm for Merchandize, or travel without demanding Leave of the King.

Stat. 5R. 2. c. 2.

Prohibited all but Great Men and Merchants to pass out of the Realm without the King's Licence:

But this Statute is repealed by 14 Jac. c. 1.

That every one may, at his Will, go with his Goods; and cites F. N. B. for it.

2. And in the next place, That ap∣propriating Merchandize and Trade to a particular Person or Persons, or a Bo∣dy Politick, excluding others, is an in∣grossing such Trade: And that all in∣grossing Trade is against the common Law.

That ingrossing any sort of Mer∣chandize is an Offence at common Law.

In this Court lately, an Agreement betwixt divers Coprice Makers and Co∣price Merchants, for the buying of all Coprice, that the Coprice Makers should, for three Years, make at so much a Tun, and restraining them from selling to any others.

Adjudged an ingrossing upon an In∣formation in this Court.

And if a Company of Merchants should buy up, in like manner, all the Merchandize of Spain or Portugal, or the Canaries, or other Town or Place for three Years to come: This I think would be an ingrossing, and the Con∣tract against Law.

For the Consequence of it must be, that they would sell at their own Price, and thereby exact upon the King's Sub∣jects. And your Patent, for the sole Trade to the East-Indies, invests you in all the Merchandizes of those Countries, and ingrosseth them all into your Hands.

And if a Patent grant to any the ingrossing of Merchandizes; this Pa∣tent is against Law, and void. Ingros∣sing is in Truth but a Species, or ano∣ther Name for monopolizing; for all the Difference between them is, that ingrossing is commonly by Agree∣ments and Contracts made betwixt Subjects one with another, without the King's Grant; but Monopolies are Ingrossings by Colour of the King's Grants.

The Case there of John Peachy, who 50. E. 3. was severely punished for a Grant under the Great Seal, for the sole selling of sweet Wines in London.

This was ingrossing by Colour of the King's Grant, and a Monopoly.

Darcey had the sole importing from beyond Seas, and selling of Cards, granted him by Patent for 21 Years, under a Rent, prohibiting all others to sell; and this, Trin. 44. Eliz. adjudged a void Grant.

And the Statute, 21 Jac. c. 3. de∣clares all Monopolies to be against the common Law. So that this being so; If this Grant be a Grant to you, to in∣gross or monopolize, then by the com∣mon Law this Grant is void.

3. That that this Grant of sole Trade is against Magna Charta, and di∣vers other the ancient Statutes.

All Merchants (if they were not openly prohibited before) shall have their safe and sure Conduct to depart out of England, and to come into England, to buy and sell without any manner of evil Tolls, by the old and rightful Customs, except in Time of War.

My Lord Cook saith,

That the Words in this Act [nisi publice prohi∣beantur] are intended a Prohibition by the publick Council of the King∣dom by Act of Parliament.

This Act then being general, all Mer∣chants to have safe Conduct, to go out, and come into England, if not prohibi∣ted by Act of Parliament, is probably a Declaration of the common Law.

Stat. 2 E. 3 c.

That all Merchants Strangers and Privy, may go and come with their Merchandizes into England, according to the Form of the Grand Charter.

Stat. 9 E. 3 c. 1.

That all Mer∣chants Strangers and Denizens, and all other, and every of them, of what Estate soever they be, shall sell their Merchandizes, from whencesoever they come, freely, without Interrup∣tion: Except the King's Enemies. And that this Act shall be observed and performed notwithstanding any Char∣ters to the contrary. And that Char∣ters to the contrary are of no force, but are to the King's Damage, and to the Oppression of the Commons.

But your Charter gives you the sole Merchandizing to and from the East-Indies.

Stat. 14 E. 3. c. 2. Recites Magna Charta, and enacts,

That all Mer∣chants, Aliens and Denizens may, without Let, safely come with their Merchandizes, safely carry, and safely return.

Stat. 25 E. 3. c. 2. Confirms the for∣mer Statute of 9 E. 3. and enacts,

That if any Letters Patents, Proclamation or Commandment be made to the contrary, it shall be void.

Stat. 2 R. 2. c. 1. and 11. c. 7. Both con∣firm the two former Statutes, and en∣act,

That all Letters Patents, and Commands to the contrary, shall be void.

By these four Statutes, the Freedom of Trade and Traffick is amply esta∣blish'd, and all Letters Patents, Grants, Proclamations, and commands to the contrary made void, if they had not been so at common Law.

And my Lord Cook, upon Conside∣ration of Magna Charta, and these Sta∣tutes, after Examination of several Grants of Tolls and Duties to be paid

upon Merchandize, saith,

That upon this Charter this Conclusion is neces∣sarily gathered, that all Monopolies concerning Trade and Traffick, are against the Liberty and Freedom de∣clared and granted by this Great Charter, and divers other Acts of Par∣liament, which are good Commenta∣ries upon this Charter.

And then cites the other Statute that I have before cited.

Object. But say they, tho we have the sole Trade, yet we are no Mono∣poly.

Resp. To prove it to be a Monopoly, let us see how a Monopoly is described.

My Lord Cook, in his Chapter of Monopolies describes it; An Institution or Allowance by the King's Grant to any Person or Persons, Bodies Politick or Cor∣porate, of or for the sole buying or selling, or using of any thing, whereby any Per∣son or Persons are to be restrained of any Freedom or Liberty that they had be∣fore, or are hindred in their lawful Trade.

This Description, I think, exactly suits with your Patent. For,

1. By your Patent you have the sole Trade granted to you.

Sole Trade is sole buying and sole selling: for Merchandizing consists in buying and selling.

The sole using any thing, is another general Part of this Description. Is not sole Trade, sole using or merchan∣dizing?

And for the latter Part of it, where∣by any Person is restrained or hindred in his Liberty,

2. Your Patent grants to you to seize the Ships and Goods of any that come thither.

And your bringing this Action, shews you are sufficiently a Hinderer of the Liberty of others to trade.

So that I think you can't deny but that you are comprehended under this Description.

But for further Evidence of its being a Monopoly, let us see what the Evils and Mischiefs are that were in Mono∣polies which the Law speaks so hard of.

The Evils and Mischiefs are:

First, That the Price of the Com∣modity they sell, shall be kept and

risen higher than otherwise it would be.

For, he that hath the sole Trade, will keep up the Price as he pleaseth. And this is one of the Evils mentioned in the Case of Monopolies, 11 Rep. 86. b.

The Truth hereof I think is evident enough, and no Man in Reason thinks but he that hath the sole Trade, trades for his Advantage: And the highest and dearest Rates he can sell at, and the cheapest he can buy at, are his Ad∣vantage.

Secondly, A second Mischief or Evil is, that Monopolies or sole Trade is pro privato paululorum quaestu. So it is said to be in the Margent of the Book before cited, 3 Inst. 181.

No Man will doubt hereof, that considers the present State or Conditi∣on of this Company.

Thirdly, Another Evil or Mischief of Monopolies or sole Trade, is the Impoverishment and Oppression of the King's Subjects.

Trade is not in its own Nature fix'd and stable, but varying and altering, sometimes better, sometimes worse. Sometimes one Trade beneficial, ano∣ther

not; according as Wares, Sick∣nesses, Scarsity of this or that sort of Commodity or Merchandize in this or that Country; Modes, Fashions, Cu∣stoms and Habits of Men do occasion.

And the Merchants, by their Edu∣cation and Observation, manage and govern this Trade, for the Mainte∣nance of themselves and their Families, and the general Good of Men. And direct and imploy their Estates, and traffick into this or that Part of the World, as Time and Occasion shall give them best Encouragement.

But sole Trade into this or that Part of the World, granted to one Compa∣ny, and of another to another, sets up the particular Men that head the Companies, but destroys all other Mer∣chants and inferior People.

Such Patents must undo all other Parts of this Kingdom besides London. For, the Companies can't drive these great Trades, but must manage them in London, and consequently, the other Parts of the Kingdom, must be exclu∣ded. All shipping must be subject∣ed to the Rates and Prizes these Ap∣propriators of Trade will give them;

or else lye still and be destroyed. And so must all Masters of Ships, Mari∣ners; all Artificers, Labourers, Fa∣ctors, and Servants, whose Employ∣ments depend upon these Trades, must all be subjected to their Wills.

And of how great Consequence that may be, deserves Consideration.

The Instances of your Oppressions and Dealings with your Factors, Cap∣tains, Servants, and Seamen that got any thing in their Service, are well known.

So that if the Evils and Mischiefs which the Common Law forbids and endeavours to prevent, by judging all Monopolies, Ingrossings, and sole Trade unlawful, be to be avoided; The Evils and Mischiefs attending your Patent and sole Trade, are per∣haps the greatest, because your sole Trade is the greatest that ever England knew.

That every Grant of the King hath this Condition implied in it, viz. Quod Patria per talem donationem magis solito non oneretur seu gravetur.

Grant le Roy al charge ou prejudice del Subject est void.

And if the Evils and Mischiefs of this Grant be as I have stated them; 'Tis a Grant to the Oppression and Prejudice of the Subject: And therefore the King is deceived in it, and the Grant by the common Law void, as I have before shewn.

Object. But perhaps it may be ob∣jected, that this Patent is granted for good Government and Order, and Pre∣servation of this Trade, which will otherwise be destroyed, and for the Good of the Kingdom: And there have been in all Times such Patents, as to Turky, Barbary, Guiny, and others.

Resp. 1. Remember what our Books say.

That new Corporations, trading to foreign Countries, under the fair Pre∣tence of Order and Government, in Conclusion, tend to the Hindrance of Trade and Traffick, and in the End, prove Monopolies.

In the End of the Case of Monopolies. Privilegia quae rever a sunt in praejudicium Reipublicae, magis tamen speciosa habent Frontispicia & boni publici praetextum, quam bonae & legales concessiones. But prae∣textu liciti non debet admitti illicitum. The Words of that Book.

And there also it appears, and is ta∣ken notice of, that Darcie's Patent had a glorious Preamble, viz.

That the Subjects might exercise their Husbandry and lawful Imploy∣ments, and not be corrupted to Idleness by the wicked thing called Cards, the sole Sale and Trade of Cards is granted to Darcey.

Observe, says the Book, what a glo∣rious Preamble and Pretext this odious Monopoly had.

That Patent which (made 3 Years after this, and dated 17 of March, 17 Car. 2. in Imitation of this) erected the Canary Company, and granted them the sole Trade, Recites, That the Trade to the Ca∣naries, was of greater Advantage to the King's Subjects formerly, than at that Time: That by reason the too much Access and Trading of Subjects thither, our Merchandizes were decreased in their Value, and the Wines increased to double Value; so that the King's Sub∣jects were forced to carry Silver and Bullion there to get Wines.

And that all this happened for want of Regulation of Trade.

And thereupon the Patent constituted Sir Arthur Ingram, and about 60. Per∣sons more by Name, and all others of the King's Subjects, Merchants or Fa∣ctors, trading, or that had within se∣ven Years, traded to those Islands, to the Value of 1000 l. per Annum, and all others that after should be admitted should be a Body Politick.

That there should be a Governor, a Deputy Governor, 12. Assistants, and names them; but to be continued by Election.

That they should have the sole Trade to these Islands. And that none other should haunt or visit those Islands, un∣der Pain of Forfeiture and Imprison∣ment: With non obstante to the Statute of Monoopolies.

Judgment was given against this Patent.

Here is in this Case, the same Pre∣tence and Preamble, asin yours. The Abuse of the Trade, and the Regulati∣on of it, for the general good was the thing pretended, but few Men doubt what was intended.

Under the Name of Regulation and Government, to ingross all into the

Hands of 10 or 12 Men, is most ex∣cellent Regulation and Government.

Resp. 2. And as to other Companies and Charters that have been granted.

Supposing that all these Grants were such as this, and practised and used as this; yet 'tis no Argument that they were legal or good Grants.

Have not there been in all Ages and Times, Patents and Grants, such as by Law were void and of no Force? If it be so; it is no Argument that because there have been many such Grants, therefore this is good.

But to keep my self to Monopolies.

Monopolies have been frequently in all Times granted; even in the best of Times; many by Queen Elizabeth. Darcy's was granted by her. In the Recital of it appears, that there had been granted before it, divers others of that Monopoly of sole selling and making Cards.

But when it came in Question, it was condemned.

Stat. 9 E. 3. c. 1. And the other Sta∣tutes before cited. The Clauses that say that all Patents granted or to be granted, contrary to the Freedom of

Trade in these Statutes mentioned, Prove,

• 1. That such Patents had been.
• 2. That they did foresee and pro∣vide against those that would be.

43 Eliz. c. 1. Sect. 9. That Proviso shews that there were Monopolies granted; but yet so far from receiving any Allowance, that that Statute made in the End of her Reign, for confirm∣ing her Patents, by special Proviso, ex∣cepts and provides,

That that Statute shall not extend to make good any Letters Patents made or granted, of and concerning Licences, Powers, or Privileges, commonly cal∣led Monopolies.

The Statute of Monopolies, and this Statute, sufficiently shew that there were such Grants, and that they were not allowed. This therefore is no Ar∣gument.

But on the contrary, it hath not, nor cannot be shewn (as I believe) that ever any had any Judicial Allow∣ance in any Times past for any sole Trade, or sole buying or selling, which is a great Argument to the contra∣ry. And further,

The Practice of these Companies hath been generally to the contrary; and till within these late Years, no sole Trade practiced amongst them.

This and the Charters to the Com∣panies of Turkey, and the rest perhaps are in this particular alike (viz.) that there is in Words granted to them the sole Trade: But the Use and Manage∣ment of these Charters vastly differ.

For the great Companies, Turkey, Muscovy, Russia, and Hamborough Com∣panies, they trade not by any joynt Stock, but the Members of each Compa∣ny, every Man uses his own Trade, buys and sells his own Commodities, hath his own Servants, Factors, and Imployers.

They take care, by sending out Con∣suls and Agents, to preserve the Trade; and by small Imposts, maintain such Consuls and Agents.

They take care that the Market be not overstock'd or glutted with Com∣modities they send out; and therefore only order what Ships shall go, but leave to every one of the Company to send his Merchandize at his own Will and Pleasure.

They trade not upon any Joynt Stock, or the Stock of the Body-Poli∣tick. If you deal with any of them, you know your Chapman: No Man is refused to be free of their Companies that hath a mind, paying some small Sum for his Freedom.

But this Company of the East-Indies, are of quite another Nature, and use their Patent to quite another End.

The East-India Company trade only upon the Company's Stock; every Man, whether Merchant or not, if he can buy such a Share in their Stock, is of their Company.

The Committee manage, and the rest must submit to their Pleasures and Distributions: Those few of them that have the most Shares, have the Dispo∣sal of the whole Stock: No Member trades, buys or sells, or hath any thing that he calls his own, but only such a Share in the Stock: No Member of theirs either buys or sells his own Mer∣chandize, or imploys any Factors or Servants. The Body Politick, the in∣visible Corporation trade, perhaps for 1000000 l. per annum. They get into their Hands, and sell perhaps 7. or

800000 l. worth of Merchandize at a time: The three last Sales that they made, came to 1800000 l. No body hath these Commodities but they.

Is this trading, and no ingrossing or no monopolizing? 'Tis their wonderful Vertue, their Hatred and Contempt of Riches that makes them not to raise and encrease Values and Prizes, and be as rich as they please, if they do not do it. No Man is admitted to come into their Company by their Patent to have a Vote, unless he have 500 l. in their Stock, which values above 1500 l. to be bought: So that by the very Foundation, they can have no more Persons in their Com∣pany, than they have 500 l. Shares, and these Shares being ingrossed into few Hands, the few Hands have all, and call themselves the Company.

So that Men that will not be deceived by Words, but distinguish things diffe∣rent one from the other, will distinguish bet wixt one Company and Society, and another, who are Ingrossers and Mo∣nopolizers, and who not.

The Turkey Company, and the rest like it, may truly be said to be Mana∣gers, Regulaters, and Improvers of

Trade. They have no joynt Stock that they trade upon; they ingross not; they admit every Man that will, to be free of their Companies, to trade with his own Mony, his own Credit, and buy and sell his own, and to im∣ploy whom he pleaseth, and none amongst them, under Pretence of Go∣vernment, Regulation and Preservati∣on of Trade, makes unreasonable Ad∣vantages.

But the invisible East-India Mer∣chant, the Body Politick covers and countenances some few Men amongst them, to engross, buy and sell at their own Rates, and excludes all others from the great and excessive Advantage of the few.

The other Companies, as the Tur∣key, &c. have not any sole buying or selling; nor exercising any sole Trade or ingrossing. Every Member of these Companies, which are a Multitude, and every one that is not, may, if he will, be a Member; no Man is ex∣cluded.

But this Company quite contrary; and therefore if ever any was, these are great Engrossers and Monopolizers of Trade.

I do not argue or speak against Companies, nor regulating or manag∣ing Trade (which was the true intent of this Patent) such as I have mention∣ed, and is vertuously and commenda∣bly practised in the great Companies of Turky, Muscovy, Hamborough and others, where the Members of the Company trade upon their own parti∣cular Stocks and Estates, and no Mer∣chant hindred or denied to be a Mem∣ber, that desires it, paying his ordina∣ry Fees of Admission.

But against the Invisible Merchant, this politick Capacity trading in joynt Stocks.

Suppose a like Patent to any one, or two or three Men, Farmers or Partners, in their private Capacity, of this sole Trade, and they had the Management of it, and thereby Possessors of such vast Wealth and Merchandize.

What would this politick Body (I mean the principal Members; for the Body can't think or have Sense) judge of it?

Perhaps yours is much worse, there a Man should know with whom he dealt, who were his Debtors, and how

to come to them; but dealing with you is a kind of dealing with Spirits, an Invisible Body subsisting only in in∣telligentia legis.

Therefore being so unlike the other Companies, and so contrary to them, you ought to have no Countenance from them; and though they are good and commendable, you are Ingrossers and Monopolizers.

3. But to proceed and consider the Statutes made against Monopolies.

Stat. 21 Jac. c. 3. By which 'tis en∣acted,

That all Monopolies, Com∣missions, Charters, and Letters Pa∣tents, granted, or to be granted to any Person or Persons, Bodies politick or corporate, of or for the sole buy∣ing or selling, or using any thing with∣in this Realm.

And all Proclamations, Inhibitions, and Restraints, and all other matters and things, any way tending to the instituting. erecting, furthering or countenancing the same, are contrary to the Laws of this Realm, and shall be utterly void and of none effect.

And that all Persons, Bodies politick and corporate, which now are, or

herefter shall be, shall stand and be un∣capable to have, use, exercise, and put in use any Monopoly, or any such Commission, Charter, Letters Patents, Inhibitions, and Restraints; or any Liberty, Power, or Faculty granted upon them.

Then follow Clauses of Forfeiture of treble Damages to the Party grieved by the using any such Monopoly.

Then the Provisoes for new Inventi∣ons, and several other things.

Then the Proviso concerning Cor∣porations, which, as to this Case, is thus;

Provided also, and be it enacted, that this Act shall not extend, or be prejudicial to the City of London, or other City or Towns corporate, for or concerning any Charters granted to them, or any Customs used within them.

Or unto any Corporations, Com∣panies, or Fellowships of any Art, Trade, Occupation, or Mystery.

Or to any Companies or Societies of Merchants erected for the Mainte∣nance, Enlargement, or Ordering of any Trade or Merchandize.

But that the same Charters, Corpo∣rations, Companies, Fellowships, and Societies; and their Liberties, Pri∣vileges, Powers, and Immunities, shall be and continue of like Force and Effect as they were before the making of this Act, and of none other; any thing in this Act to the contrary not∣withstanding.

The next Proviso extends to Patents, granted or to be granted for Printing, making Salt Peter, Offices, &c. which do not concern the Case in Question.

By the Description of a Monopoly, which I have before, out of my Lord Cook, stated and expressed; This sole Trade granted to you, and the Exclu∣sion of all others, is a Monopoly with∣in that Description, as I have before shewn.

That your Charter is directly con∣trary to the enacting Clause of this Act. For you have by your Charter granted,

Sole buying.

For all others are prohibited as much as to come or go into the East-Indies.

Sole selling.

All others are prohibited to import into this Realm; and they can't sell here unless they can import.

Sole using.

For you have granted to you the sole Trade, which includes all buying, selling, sole using. That appropriates all to your selves, and excludes all others.

How can your Letters Patents and this Statute stand together?

When the Statute saith,

That all Letters Patents, granted to any Bo∣dy politick, of or for the sole buying, selling, or using any thing, shall be void;

How can yours be good?

When the Statute saith,

That all Inhibitions, Restraints, and other things any way tending to the insti∣tuting, erecting, furthering, or coun∣tenancing any such sole buying, sel∣ling, or trading, shall be void;

How can yours be good?

When the Statute saith,

That all Bodies politick and corporate shall hereafter stand and be incapable of ha∣ving, using, exercising, or putting

in ure any such Charter, Inhibition, or Restraint;

How then can the Plaintiff, in this Case do it?

In the Comment upon this Statute, 'tis there said, that this Act is forcibly and vehemently penn'd for the Suppres∣sion of all Monopolies.

And the Words [Sole using] is there said to be so general, as no Mo∣nopoly can be raised, but will be with∣in the Reach of this Statute.

The Word [any thing] shews also the general Scope and Intent, that no∣thing should be excluded that was a Monopoly.

Object. But the Proviso excepts Charters to Companies or Societies of Merchants, erected for the Mainte∣nance, Enlargement, or Ordering of any Trade or Merchandize.

Resp. 1. This Proviso extends not to this Charter, or any Letters Patents granted after the making of that Act. And this appears from the penning of the Proviso.

The enacting Clause saith,

That all Letters Patents, granted or to be granted for sole buying any thing, shall be void.

The Proviso saith,

That this Act shall not extend to, or be prejudicial to Towns Corporate concerning any Charters granted to them, or Customs used by them.

Or to any Companies or Societies of Merchants, erected for the Main∣tenance, Enlargement, or Ordering of any Trade or Merchandize.

This extends to those that were granted and erected. Here is no Words of salving for any that should be here∣after granted or erected: the Words [hereafter to be granted,] would have been in this Clause of salving, as well as in the enacting Clause, if ever so intended. But the following Words concluding this Proviso, further shew it,

That the Charters, Corporations, Companies, Fellowships, and Socie∣ties, and their Liberties, Privileges, Powers, and Immunities shall be and continue as they were before the making of this Act.

This governs and concludes the whole Proviso, and extends only to those that then were, to leave them as they were. That is,

To leave the Charters and Compa∣nies, their Powers and Privileges in the same State and Condition as they were before this Act.

The Beginning of the Proviso saith, this Act shall not prejudice them; the Conclusion saith, they shall be as they were before this Act was made.

Therefore those that were excepted must have a Being before this Act: No Words therein extend to those that then had not a Being.

The next Proviso for Printing, Salt-Peter, Offices, &c. expresly provides for Patents granted or to be granted.

This (if so intended) would no doubt in like manner have been penn'd.

Resp. 2. But suppose it should be construed to extend to Companies, Privileges, and Immunities erected and granted after this Act.

Yet you are not within this saving.

1. For it extends only to Companies and Societies erected for the Mainte∣nance, Enlargement or ordering of Trade or Merchandize, and to their Powers and Privileges that they have for that End.

Not to Companies and Societies erected to have a sole Trade by a joynt Stock, or a Stock of the Corporation, excluding all others.

The Turky Company, Russia and Hamborough, and other Companies, that trade not as Bodies politick, or upon joynt Stocks, but every Mer∣chant that will, may be thereof a Member, and every Member thereof trade upon his own private Stock and Account of a Merchant.

The Companies only order an con∣sult for Maintenance and Preservation of it, and not for the ingrossing and cousening their Members of it.

These are the Corporations that are within this Exception and Proviso.

But we must be as silly as the Infi∣dels you deal with in these Matters, not to distinguish betwixt these Corpo∣rations and their Management, and yours.

They exclude none from Trade; they trade not in a publick Capacity, in a sole Stock, but every Member is a Trader upon his own peculiar Stock.

But you take upon you in your po∣litick Capacity, as you have expressed in your Declaration,

Totum integrum & solum Commercium & negotiationem habere uti & gaudere.

And to exclude, not only all Stran∣gers, but all your own Members to have any distinct or separate Trade upon their ownaccount (except a little to excuse you to pay off Charges) and thereby ingross all that vast Quantity of Merchandize.

The many 100000 l. worth you bring in and carry out: In whom is the Property?

In the Corporation.

Who buys and sells all?

The Corporation.

Who are the Debtors for the Mony, that buys and provides these Merchan∣dizes?

The Body Politick, the Corporati∣on, the invisible Body.

Who shall be sued for these Debts?

The Body Politick.

Sue them as you can, they will ei∣ther be too rich and great to contend with, or else in that Condition as you know not how or where to have them;

they are an invisible Body, subsisting only in intelligentia legis, a Body Poli∣tick, without Soul or Conscience, as the Law says it to be.

We have seen them in a Years time in both these Qualifications; so great as scarce any Man will contend with them; so invisible at another time, as a Dun could scarce find them.

This surely can't be for the Mainte∣nance or Enlargement of Trade, to deal with I know not whom, where no Se∣curity or person is subject.

It is indeed for the Maintenance of the Company's Trade, to enable some of them to get 10 or 20000 l. per An∣num by it, and to keep this vast Trade in a few Hands.

But sure this is not the Trade the Proviso intends.

Restraining to the Body Politick, which is but one Person or Man in Partnership, is quite contrary to the Enlargement in the Proviso mention∣ed.

And therefore, to say that you are within the saving, by this Proviso; a Company erected for the Maintenance and Enlargement of Trade, when you

restrain all but your selves to trade, seems to be a Contradiction.

And for the following Words in the Proviso,

[Or ordering of any Trade or Merchan∣dize,]

If you say you are saved within the Extent of these Words, then must you make a Construction of these Words in this Sense.

That ordering Trade and Merchan∣dize is excluding all others, and taking the whole to your selves.

A most excellent ordering indeed.

But the true Sense of these Words in this Proviso, is to save the Corporati∣ons and Fellowships of Arts, Trades, Occupations, and Mysteries, and to Companies of Merchants, the Powers and Authorities that they had for the Maintenance, Enlargement, or order∣ing of Trade.

By taking care that the Commodi∣ties were honestly and rightly made, without Fraud or Deceit in their Mea∣sures or Quantities.

That the Servants and younger sort were honest, and industriously educa∣ted in their Trades and Mysteries, by the Masters and elder sort.

To place and keep good Order and Decorum amongst those of the same Mystery and Trade.

For assembling and consulting for the common Good, and Management of their respective Trades and Imploy∣ments.

This is that which the Proviso ex∣cepts and provides for.

Not for a sole Trade in a Company, in a joynt Stock, excluding all others as this is.

The Company there made a By-Law, to exclude Taylors from using their Trades within that Town, unless by the Masters and Wardens of the Company, or three of them admitted to be a sufficient Workman.

In this Case here seemed to be a good End and Meaning, to exclude in∣sufficient Workmen, and encourage good Workmen; a good Order one might think.

Yet so jealous and careful they then were, lest, under any Pretence they should exclude Men from their law∣ful Trades that they adjudged this a void By-Law, as tending to restrain Men of their Freedom in using their

Trades, and introducing Oppression of the young Tradesmen, by the old and rich Tradesmen.

And in that Case adjudged,

That Ordinances for the good Order and Government of Men of Trades and Mysteries are good, but not to restrain Men in their lawful Mystery.

To the same purpose is Norris and Stop's Case, Hob. 211.

So that this being the Sense of this Proviso, to except Powers and Autho∣rities that Companies have to regulate Trade, for the Maintenance and En∣largement of it, but not to restrain any from their Trades or lawful Mysteries, it extends not to salve or preserve such Authority or Power in you to have a sole Trade, excluding all others.

2. For another reason, it cannot be the Sense of this Proviso, to except or save to any Body Politick, the buying in their publick Capacity, a sole Trade.

The Proviso then will be repugnant and contradictory to the enacting Clau∣ses. For taking the Proviso as they would have it;

To save to Bodies Politick the having the sole buying and selling, and using a∣ny Merchandize or Trade as a Corpo∣ration, and then compare the Proviso with the enacting Clause, and it will be just thus,

Enacted, That Letters Patents to any Body Politick, for sole buying, selling, or using any thing, shall be void. And that no Body Politick shall be capable of having, using, or exercising any such Patent, Inhibi∣tion, or Restraint.

Provided that Bodies Politick may have the sole buying, selling, and using any Trade:

Is not this in plain English, repug∣nant and contradictory? Examine it as much as you can, and it will be no other than a down-right Contradiction.

Suppose the Statute that enacts, that no Man shall use a Trade that he hath not served an Apprentice to, by the Space of seven Years, had a Pro∣viso.

That Men might use a Trade that they had not served an Apprentice to by the Space of seven Years.

This had ben a void repugnant Pro∣viso.

This is as plainly repugnant,

That no Body Politick shall be capa∣ble of having a sole Trade,

Provided that a Body may have a sole Trade.

And repugnant Provisos are in Law void.

Statute gives the Land of J. S. to the King: Then a Proviso comes to save the Right of all Persons.

This shall be construed, all Persons besides J. S. not to destroy the Pre∣mises.

Therefore when the Act saith,

That all Patents granted to Bodies Politick for sole buying and selling or using any thing, &c.

Shall the Proviso that saith, That it shall not extend or be prejudicial to Companies of Merchants erected for the Maintenance, Enlargement, or order∣ing of Trade,

If construed in the same Sense that they would have it, to give the Companies sole buying, selling, and using any thing as Companies in their Corporate Capacity, it is repugnant and contra∣dictory.

But to give the Companies the Ma∣nagement, Order, and Government, is the Sense as I conceive.

And this is the general Practice of the Societies and Companies allowed in all times.

But a sole Trade, under the Colour and Pretence of Order and Manage∣ment, never, as I believe, hath had any judicial Allowance.

Object. Another thing that the Coun∣sel of the other side, have objected to evade this Act, hath been this. The Proviso is;

That the Act shall not extend to Companies of Merchants erected for Maintenance and Ordering of Trade, but that their Charters, Liberties, and Privileges shall be of like Force as they were before the making this Act.

And therefore, say they, Patents to Companies of Merchants for ordering Trade, if good before this Act, shall be good still; and therefore, say they, the Act can't hurt us.

This is curious, but if examined, is but the same Objection in other Words.

For the Conclusion of this Proviso extends no further than the Charters mentioned in the Beginning of it: It extends but to the same Charters; so are the very Words.

What Charters or Patents then shall remain in the same Force they were before the Act?

Those that are excepted.

What are excepted?

Those that are for Order and Ma∣nagement; as I have before shewn.

Not those that are for sole Trade granted to a Body Politick. That is repugnant to the enacting Clause; therefore those (as I have said) are not excepted or within the Proviso.

If then not excepted, you are most plainly and fully within the enacting Clause, and your Patent quite contra∣trary to, and void by this Act; unless the matter of Infidel will save you.

Object. But this is a sole Trade with Infidels, and such a Trade the Subject had never any Right to have without the King's Licence. And to prove it, they cite Michelburne's Case.

Wherein Mr. Brownlow being Pro∣thonotary, doth relate what my Lord

Coke said, That no Subject of the King might trade with any Realm of Infi∣dels, without the King's Licence.

And that the Reason was because he might relinquish the Catholick Faith, and adhere to Infidelism: And that he had seen a Licence in the Time of E. 3. where the King recited the Confidence that he had in his Subject, that he would not decline his Religion; and so licenced him.

And that this did arise upon the Re∣cital of a Licence made to trade to the East-Indies.

They cite also Calvin's Case, 7 Rep. 17. where 'tis said, That Infidels are perpetui inimici; there is perpetual Ho∣stility, there can be no Peace; an Infi∣del can maintain no Action, nor have any thing within this Realm; and to prove this there is cited, R. 282.12 H. 8.4.

1. Supposing the Law to be as these Books intend, and as the other side urge them, and the Consequence will be, that the Plaintiff can't maintain this Action, but that the Charter grant∣ed to them, is void.

The Reason that is given in Michel∣burn's Case is grounded upon this: That

the King hath the Care and Preserva∣tion of Religion by the Law vested in him: That his Subjects shall not trade with Infidels, lest thereby they may be brought to relinquish the Ca∣tholick Faith, and adhere to Infidelism: And that the King shall take care, that Licences to trade be only given to such as the King hath Confidence in, that they will not decline their Religion.

Supposing this, then your Patent must be naught, for then it is only grantable to Persons in whom such Confidence may be.

1. Your Corporation or Body Politick is indefinite as to Persons; the Mem∣bers thereof are daily changeable; some go out, sell their Stocks, or dye; others buy their Stocks, and are daily coming in to be Members of your Company.

I doubt you do not much examine, nor care how fixed or certain those are in Religion, that come into your Com∣pany.

How then can there be any Confi∣dence in a Body Politick?

The Law saith, that a Body Poli∣tick hath neither Soul nor Conscience:

What Confidence then concerning their Religion can there be in a Body Politick?

2. 'Tis not only the Members of the Company that were at the Time of the Corporation, but those that after should be Members, and their Sons, their Apprentices, Factors, and Servants that are licensed by this Patent.

If licensing to trade with Infidels be a Trust and Prerogative in the King, to be given to such Persons in whom the King can have Confidence, that they will not be conversing with Infi∣dels, change or prejudice;

This can't be granted to a Body Po∣litick and their Successors, which may have Continuance for ever; or to their Sons Factors, Apprentices, and Ser∣vants, Persons altogether unknown, not born, nor in rerum natura, when the Patent was made.

Suppose such a Licence to you to trade with Enemies. I say,

3. Supposing it to be in the King's Prerogative, in Preservation of Religion to licence; yet he can't grant this Pre∣rogative to you, that you shall have Power to grant Licence to whom you will.

Yet all this is done by your Patent; for you have not only thereby Power granted you for your Apprentices, Fa∣ctors and Servants, which are Persons that you your selves nominate and ap∣point at your Discretions; and un∣doubtedly very religious:

But by your Patent it is expresly granted, that the Company, for any Consideration or Benefit to themselves, may grant Licences to any Merchant, Stranger, or other, to trade to or from the Indies:

And that the King will not, with∣out the Consent of the Company, li∣cence any other to trade.

Can this be a good Grant? Can the King grant from himself his Kingly Care and Trust for Preservation of Re∣ligion, to you, that you shall manage it, and that the King will not use such his Power without your Consent?

So that supposing that there is, by the Law, such a Trust reposed in the King, for Preservation of Religion, as you would have it; yet the Grant to you is void in it self, and then you have no more Right than we, and con∣sequently can maintain no Action against us.

2. To consider the Books that you have cited to maintain this religious Point.

1. Brownlow's Reports, a Book print∣ed in the late Times, not licensed by any Judge or Person whatsoever.

The Roll is, Michelburn against Ba∣thurst, setting forth, that the King had granted the Plaintiff his Commission to go with his Ship Tiger, to the East-In∣dies. to spoil and suppress the Infidels, and to take from them what he could. That there were Articles betwixt the Parties for Account and Shares of what should be got, and upon those Articles a Suit in the Admiralty.

And what is it that is in the Case? Nothing to the purpose; but the Book mentions only what my Lord Coke said upon the Motion for the Prohibiti∣on: Only a sudden occasional Saying, not upon any Argument or Debate, nor to the then Case.

So that a Man must be very willing that will much rely upon such a Say∣ing, I can't call it an Authority.

2. For Calvin's Case;

That an Infidel is perpetuus Inimicus, and can maintain no Action, or have

any thing, and that we are in perpe∣tual Hostility, and no Peace can be made with them.

It is true, that this is said in Calvin's Case; but there was nothing there in Judgment that gave Occasion for it, so that I can't think that it was much considered before it was spoken.

The Books there cited to prove it are, Reg. 282. And all that I can find therein, is, that in a Writ of Protecti∣on, granted to the Hospitallers of the Hospital of St. John's of Jerusalem, it is said, that the Hospital was founded in Defence of Holy Church against the Enemies of Christ and Christians.

But doth this prove, that Infidels are perpetui Inimici, with whom no Peace can be made, that can maintain no Action?

The other Book cited is, 12 H. 8.4. a Trespass brought for taking away a Dog, and in the debating whether this Action did lye or not; it is said,

That if the Lord beat his Villain, an Husband his Wife, or a Man out∣lawed, or a Traitor, or a Pagan, they shall have no Action, because they are not able to sue an Action.

So that this also is but Discourse and sudden Thoughts and Sayings, where the thing was not in Question: And what Authority is there in such Say∣ings? It is true, that Christian Reli∣gion and Pagaism are so contrary one to the other, as impossible to be re∣conciled, no more than Contradictions can be reconciled.

But because they can't be reconciled that therefore there should be perpetu∣al War betwixt them and us, perhaps is an irreligious Doctrine, and destroys all Means of convincing Infidels to the Faith.

And besides, these extrajudicial and occasional Sayings in these Books cited, are of little Authority: For I can't find any Book or Case, much less Judg∣ment or Authority for such Opini∣ons in so great a Point as this is.

But on the other side, if a Man con∣siders the general Course and Practice, Trade and Commerce, and legal Pro∣ceedings; a Man would think, That my Lord Coke could not be in earnest in what he hath said about Infidels.

For let a Man consider what a great Part of the World we have Commerce

with, that are Infidels, as Turks, Per∣sians, the Inhabitants of Barbary, and other Countries.

Spain and Portugal were also posses∣sed by the Moors, who were Infidels, till about the Year 1474. about 200 Years since they were driven out, for till then, for near the Space of 700 Years the Moors possessed both Spain and Portugal.

Have we not Leagues and Treaties with the Princes and Inhabitants of the Infidel Countries, receiving Embassa∣dors from them, and sending Embas∣sadors to them, and Ministers always residing with them? Have we not from Time to Time, Peace or War with them in like manner, as with Christian Kings and Countries?

If Infidels be perpetui Inimici, if in perpetual Enmity, then we may ju∣stifie the killing of them, as those that we are in Hostility with, wheresoever we meet with them.

17 E. 4.13. b. 2 H. 7.15. Adjudg∣ed that any Man may seize and take to his own Use, the Goods of an alien Enemy.

'Tis the Price of his Adventure and Victory over his Enemy.

If an Infidel be any Enemy, any Man may then take away the Goods of an Infidel, and have them to his own Use: And this would be a good Trade if this be so.

Mr. Sollicitor, in his Argument, was pleased to cite many ancient Rolls out of H. 3. and E. 1. and about those Times, concerning those Princes hand∣ling the Jews.

In Mr. Pryn's Book that he calls The second Part of a short Demurrer to the Jews long discontinued Remitter into En∣gland; printed in 1656.

In which Book, I believe, an hun∣dred Records and Histories are cited to shew how they were about those times handled.

The Time that they did exact, and much enrich themselves by Usury, to the great Impoverishment of the Peo∣ple: And that the Princes of those Times polled them, taxed them, and took it from them again at Pleasure.

But besides Mr. Pryn,

Stat. of Merton, C. 5. made 20 H. 7. was, my Lord Coke saith, principally

intended against the usurious Jews.

Stat. de Judaismo 18 E. 1. Recites, that the King's People were disinheri∣ted by the usurious Jews: And enacts, That no Jew, for the suture, shall take Usury.

My Lord Coke saith, that 15060 Jews thereupon departed the King∣dom.

But for the Use that in arguing is made of this matter of the Jews and of the King's seizing their Estates, and pardoning for dealing with them.

1. As for those ancient Records in general.

Time hath hidden the Knowledg of the Laws, and Transactions of those Times: It is impossible to know what the Laws of those Times were, or right∣ly to distinguish betwixt legal and vi∣olent Acts: And to bring Inferences from thence, to conclude in Judgment now, is Notum per Ignotius: Or like Dependencies, which, unless latter Times have concurred or agreed with, are only fit to make Disorder and Con∣fusion.

2. But that which is deducible from thence is not, as I conceive, what hath been endeavoured.

That is, that they had no Pro∣perty, because the Princes of those Times took from them their Estates when they pleased, or taxed them how, and in what manner they plea∣sed.

But perhaps the Reason was be∣cause those People lying under the Curse, and being a vagrant People, without Head, Prince, or Governour, or Country; it was no Difficulty to tax, or take from them at Pleasure, be∣ing hated of the People where they lived.

For it could not be as they would have it, that they should be amongst us as alien Enemies; for an alien Ene∣my can make neither Bargain nor Con∣tract, nor be capable of Property.

But the Subject may, at his Will and Pleasure, fall upon and take all that he hath to his own Use, as upon the King's Enemies; and what he can take from him is his own Acquisition, as the Prize of his Adventure, and Conquest over his Enemy: And to prove this, two Books are cited, 17 E. 4. and 2 H. 7.

But by what is admitted by them, that they were great Usurers, and had great Estates,

It is evident that they were treated as alien Amies: How could they else, in such Multitudes, live amongst us? How could they be Usurers or get E∣states if they could not make Contracts? How is it possible they could preserve their Bodies or Estates against the King's Subjects, unless they had the King's Protection, and treated as alien Amies?

And of latter Times, how many of them have lived amongst us, driven great Trades, have had, and have, at this present, considerable Estates?

Let it be now adjudged, that any Man that will, may take away their Estates, that they can have no Reme∣dy or Action for any Debt owing to them, but instead thereof, may be beaten and imprisoned as Enemies to the King: And we shall probably see what the Success of such a Judgment will be.

The Act of Navigation, made the 12 Year of the King, concerning Trade, shews, that Infidels have the same Li∣berty of Trade as others.

That Act being made for Encrease of Shipping and Navigation, and pro∣hibiting Goods to be imported by any foreign Ships, except the Ships of the same Country where the Goods do grow or arise, distinguisheth not be∣twixt Infidel and Christian Countries: But expresly saith,

That Currants, nor Commodities of the Growth of the Turkish or Ottoman Empire, shall be imported but by English Ships, ex∣cept Ships of the Built of that Coun∣try or Place where the Growth is, and whereof the Master of the Ma∣riners is of that Country or Place.

This Clause shews plainly, that the Infidels of the Turkish and Ottoman Em∣pire have Liberty of Trade here.

And the Acts of Tunnage and Poundage tax all their Merchandizes without saying brought in.

In Southern & How's Case, 2 Cr. 469. where a Man imployed another to sell Jewels for him in Barbary, as true Jewels, and he sold them to the King of Barbary for 800 l. as true Jewels, when they were counterfeit, and thereupon the King of Barbary finding himself cheated, im∣prisoned the Plaintiff that sold them,

to him, till he repaid his Mony

In that Case 'twas of all sides admitted, and not as much as objected, that this Contract was void, because the King of Barbary was an Infidel.

So that this Opinion, that Infidels are perpetual Enemies, and in perpe∣tual Hostility, can maintain no Action, nor have any thing amongst us, hath no Authority for its Foundation, but only some extrajudicial Sayings, with∣out Debate or Consideration: And is against all the continual Practices of Princes and People at all Times.

Perhaps 'tis no small Part of Religi∣on, that Men should speak and deal plainly and uprightly one with ano∣ther. We do know that Religion hath been too often made a Cloak and Vail for other Ends and Purposes. It should not be so: And I hope, will not be so used in this Case.

The Statutes that I have cited of Magna Charta, c. 9. E. 3. 25 E. 3.2. and 11 R. 2. All declare and enact the Freedom of Trade in general Words, except only such as are in War with the King. In none of them is there any Exception of Trade with In∣fidels.

Can it be imagined, that in those Days we had no Trade with Turkey or Barbary? Our Kings went with Armies to the Holy Land. King _____ _____ had made War and Peace with the Turks. Had we no Trade there but with our Swords?

But to look nearer home, Spain and Portugal were Infidels, and in the Hands of the Moors, until anno 147 4. which w•• 14 E. 4. Can it be thought that in all those Times betwixt Mag∣na Charta, H. 3. and E. 4. we had no Trade with Spain or Portugal?

Stat. 12 H. 7. c. 6. was made in the Year 1497. which is but 23 Years af∣ter the Moors were driven out, and in that Statute 'tis Recited,

That the Merchants Adventurers, dwelling in divers Parts of England, out of London, did shew,

That whereas they have had free Passage, Course and Recourse with their Goods, Wares, and Merchan∣dizes in divers Coasts and Parts be∣yond the Seas, as well into Spain, Portugal, Venice, Danzick, East-land, Frize-Land, and divers, and many other Regions and Countries in

League and Amity with the King;

That they were imposed upon by the Company of Merchants in Lon∣don, and forced to pay Duties.

I only make use of this Recital, to prove the free Passage there mentioned, to Spain and Portugal, and to other Countries and Regions. There is no Distinction of Infidel from Christian Country, though Spain and Portugal had been so lately Infidel; and though most probably, the Trade they had then, was with Turkey and Barbary, as well as with Venice: The Words [other Regions and Countries,] seem to imply as much, and the Freedom equal.

So that I think, as to this Objection, that Infidels are perpetual Enemies, that we have no Peace with them, nor they maintain any Action, or have any Property by our Law; I think the Authority to maintain it is none at all; The constant Practice, as well by Princes as People, has been always against it.

But be that Point of trading with or without Licence, how it will;

That Point can't be sufficient to found a Monopoly upon, that can't warrant a Grant of a sole Trade, sole buying, and sole selling, to be granted to you and your Successors, your Sons, your Servants, your Apprentices and Factors, and such as you shall license for ever.

Here is a Licence in Perpetuity, not only to those that then were, but to their So••s and Successors, and those whom they shall license for ever: And this into a very great Part of the World: And by the same Reason all Turkey and Barbary, a great Part of the West-Indies, and other Parts of the World may be monopolized, and per∣haps all Christian Countries.

The Statute of Monopolies hath no Allowance or Exception for monopo∣lizing to Infidel Countries.

That Statute is against all sole buy∣ing, sole selling, or sole using any thing.

And the Turkey Trade was used long before that Time, as by the Charter granted 23 Eliz. So was the Barbary, as by the Charter thereof; and I be∣lieve to the Indies also.

And the Statute of Monopolies be∣ing so general (the Proviso not rea∣sonably construable, to except this Company out of the Extent of that Statute, unless all Patents that may be granted to Companies of Monopolies are, by that Exception or Proviso, out of the Statute) and deserving for the suppressing so great Evils as Monopo∣lies are, and always have been ac∣counted:

I hope it will not be avoided upon an imaginary Difference in Law betwixt Infidel and Christian Countries, to monopolize thereby the Trade, per∣haps, of the greater Half of the World; as Turkey, Persia, Barbary, East and West-Indies; for those of the West-Indies, a great Part, I think, are Pagans.

In the great Debates that were about 3 and 4 Car. 1. about the King's Power of imposing Rates, Subsidies, or Impositions upon Merchandize, in Bates his Case; and in the Parliaments are many things said concerning the King's Power of prohibiting Trade.

Restraining by a Ne exeat Regno. And from these Arguments they reason

the Lawfulness of Imposition upon Merchandize.

The Arguments and Reasons in those Debates did not distinguish be∣twixt Infidel and Christian Countries. But betwixt Native and Foreign Commodities or Merchandize: And did endeavour to have a Prerogative to tax foreign Commodities.

And their Reasons run thus,

The King can prohibit or restrain any Merchant to go out of the King∣dom: He can restrain any sort of fo∣reign Commodities to be imported: If he can restrain, then none can go or import contrary to such Restriction or Prohibition without Licence. Then the Licence is grantable upon Payment of such or such Duty or Imposition, or as it can be agreed for and had; and consequently such Imposition, Farm, or Rent lawful.

And in the Argument of those Mat∣ters, it appears that a Restraint in its Consequence may import a Tax, or an Imposition, or Rent or Farm.

If Licences be requisite, whether that will introduce Rates to be imposed

otherwise than by Act of Parliament, may be considered.

Suppose it true, that there have been Licences granted, to go into In∣fidel Countries. So there have been to go beyond Seas.

But it is no Consequence, that be∣cause such have been granted, that therefore it is unlawful to go or trade without Licences.

Much less doth it follow from thence, that such a Patent as this to any one or few Subjects to have the whole and sole Trade into any one Place, can be warranted.

I do not question but the King may restrain the Passage of Merchants and Merchandize in some Cases, and Em∣bargue Ships in some Cases. But these are upon several Reasons.

• 1. In Cases of War.
• 2. In Cases of such Merchandizes as are necessary for the Safety or Defence of the Kingdom, to restrain their Ex∣portation.
• 3. In Cases of Plague from particu∣lar Place to import.

But then these Prohibitions are ge∣neral, and their particular Reasons and Grounds are apparent.

But if under any Pretence, any sole Trade to some one Person, Body-poli∣tick, or Natural, be granted, exclu∣ding all others, That Grant is, I con∣ceive, in Deceit of the King, and to the Prejudice of his Subjects, and void.

Never any such Grant hath hitherto had any judicial Allowance; but so far from that, that as far as I could ob∣serve, no Opinion hath been, till with∣in 4 or 5 Years, that such Grants were good to exclude others: Nor any Acti∣on or Suit ever adventured before now to be brought upon any such Ground.

But if the Law should be so, and that the Defendant ought not to have traded there without License,

Then he may be punishable at the King's Suit, by Fine and Imprison∣ment.

But that you should maintain an Action against him; what Cause of Action, or what Damage or Loss to you have you laid in your Declarati∣on?

You say in your Declaration.

That the Defendant Sands, not being a Member of the Company, nor Son, Servant, Factor, Apprentice, or As∣signee

of the Company, traded and mer∣chandized in the East-Indies, within the Places granted to you by your Charter, and hath there bargained and sold Wares and Merchandizes, and there bought others, and import∣ed and sold them in England, against the Will of the Company, to their Prejudice and Impoverishment, a∣gainst the Form of the Letters Pa∣tents, to the Damage of the Compa∣ny, 1000 l.

• 1. You have not alledged that he had no License from the King.
• 2. You have not shewn any Loss or Damage that you have.

Did he buy so much Merchandize in the Indies, as that he left not there suf∣ficient for you to furnish your Ships withall, so that they came home emp∣ty?

No such thing is alledged.

Or did he here export, to sell so much Merchandize, as not sufficient left for you to buy here?

No such thing alledged in your De∣claration.

Or did he bring home here so much as that there were not Buyers suf∣ficient

for his Goods and your's al∣so?

No such thing is alledged.

Or is the Truth so, as that hereby your imposing your Prizes upon your own Commodities, selling at your own Rates, and exacting what you thought fit, was hindred; and for this you would maintain an Action?

It will be the first Time, I think, that a Man did ever recover Damages for being hindred of imposing and ex∣acting his own Prizes, or having the Advantage of his Monopoly.

A Commoner may bring an Action of the Case against a Stranger, who puts in his Cattel into the Common; provided that thereby the Common be impaired, and the Commoner have not sufficient Common, as before, but have a Damage; otherwise he can maintain no Action.

Resolved, that for every feeding of the Beasts of a Stranger in a Common, the Commoner shall not have an As∣size or Action upon the Case, but the feeding ought to be such, that thereby the Commoner cannot have Common of Pasture for his own Beasts.

'Tis the Consequence, the Loss of his Common that gives him Cause of Action.

'Tis not alledged in the Declaration, that your Trade was any thing the worse: No Damage to you appears by it.

What Reason is there that you should recover Damages where you have not sustained any Loss? And if you have alledged none in your Decla∣ration, how can your Declaration be good? It then contains no Cause of Action.

The last Point in that Case is there resolved, that admitting the Patent good, yet no Action would lye.

In that Case the Queen, by her Let∣ters Patents, had granted to Mr. Dar∣cey, that he, his Servants, Factors, and Deputies, the whole Trade, Traf∣fick and Merchandize of Cards for 12 Years should have and use: That none else should use the Trade, nor buy or sell Cards: That the Defendant did, contrary to this Patent sell Cards.

1. Adjudged that this was a Mono∣poly, and the Patent void.

2. That if the Patent had been

good, yet no Action would have lyen against the Defendant upon it.

2. But for another Reason you can't maintain this Action.

It is grounded upon the Restraint and Prohibition of others to trade, contained in the Letters Patents.

That Restraint or Prohibition is not an absolute Restraint or Prohibition, but sub modo, under a Pain of Forfei∣ture of Ship and Goods; One half to the King, another half to you that are the Company.

Now supposing all that you can de∣sire; That this Patent should have the Force and Vertue of an Act of Parlia∣ment, yet such an Action as this could not be maintained upon it; but you must sue for the Forfeiture.

For whensoever a new Law is made, you must take that new Law as it is, and it can't be extended.

Co. 7 Rep. 37. 11 Rep. 59. and Pl. Com. 206. All prove it.

Stat. E. 6. gives treble Damages for not setting out of Tithes.

Can the Party wave this Way, and bring an Action of the Case? Yet here the Damages are given to the Party.

The like of all other penal Statutes; a Man must forfeit only the Penalty the Statute inflicts.

So that this Action cannot, as I con∣ceive, be maintained.

So that to conclude:

1. That which this Company claims in this Case by this Patent, to have the sole Trade to the East-Indies in their Politick Capacity, excluding all others, is a Monopoly and ingrossing against the common Law; the ancient Sta∣tutes; the Statute of Monopolies 21 Jac.

And therefore they have no Right to have what they claim.

2. That what the Defendant hath in this Case done, he hath lawfully done, and therefore not to be punish∣ed.

3. That though the Company had a lawful Claim to the Trade in such manner as in their Declaration set forth, and the Defendant have done what he ought not, yet they can't main∣tain this Action.

And upon the whole matter, Whe∣ther best for the Company to have

Judgment for them or against them, may deserve their Thoughts.

And this being so great in the Con∣seqence, as the whole Trade of the Kingdom depending upon it, I have laboured the more.

The ancient Laws, the ancient Ways, is what I endeavour, and against new Ways upon any Pretence whatsoever.

Notes

• 3. Apr. 13 C. II.
• 3 Inst. 381.
• 1 Rols Rep. 4.
• F.N.B. 85.
• Dyer, 165.
• 3 Inst. 196.
• Dom' Rex vers. Crisp. & al.
• 3 Inst. 181.
• Case of Monop. 11 Rep. 84. Moor. 673. and in Noy.
• 9 H. 3. Mag. Ch. c. 30.
• 2 Inst. 57.
• 2 Inst. 63.
• 3 Inst. 181.
• F. N. Br 222.
• 13 H. 4.••••.
• 2 Inst. 540.
• 11 Rep. 28. b.
• Horn and Ivy, Mich. 20. B. 2. c. 403.
• 3 Inst. 182.
• Taylors of Ipswich Case, 11 Rep. 54.
• 1 Rep. 46. Pl. Com. 563.
• 2. Brown∣low 296.
• Mich. 7 Jac. B. C. Rot. 3107.
• 2 Inst. 89.
• 2 Inst. 507.
• 12 Car. 2. cap. 18.
• Exch. 4. C. 1. Lane 24. 2 Inst. 63.
• Co. 9 Rep. 113.
• 11 Co. Rep. 88. b. Rols Abr. 1 part. 106.