Introduction▪ THE Substance of what follows was intended to be spoken by me before a Committee of the late House of Commons; but my An­cients at the Bar, thought it better to rely upon the supposed Defect of Proof for the Mat­ters alledged against the East-India Company, than to justify the Fact; which if proved, and not de­fended, was likely to have that Consequence which is well known to have hapned.

I have here considered all the Objections which have occurred to me against the Exercise of such Powers, as 'tis not to be denied but the Company thought were warrantable.

I urge not this as if an Act of Parliament for setling convenient Powers were needless, or not de­sired by them; but to shew that those their Acti­ons which have been most complained of, have not been without Precedent and Countenance from Le­gal Authorities.

[Page 4] First Charge. I. The two great Charges against the Compa­ny, are the seizing of Ships and Goods of Interlo­pers, and condemning them as forfeited.

Second Charge. II. The passing Sentence of Death, and exe­cuting Men, by the Governor at St. Helena, in a Method not wholly agreeable to the Laws of Eng­land; or else the procuring a Commission from the King, for trying and executing Men there, by Martial Law.

First seizing Ships and Goods. I. That in relation to Ships and Goods seems the less likely to be according to Law, since it was not justified in the time when Jefferies was Chief-Justice, and the King's Power even for prohibiting, labours with the Disadvantage of having Judg­ment for it in irregular times; and the Grounds on which most weight was laid, suitable to such times. As,

False Mediums formerly used. 1. A Prerogative to forbid Trade with Infidels, who remaining perpetual Enemies to the Nation, yet were to be Friends to part: and this upon a Principle that would restrain the Propagation of the Gospel, as well as of Trade; as if the Danger of being infected with their Infidelity were greater than the hopes of converting them: or that they who were free of such a Company had a particular Antidote against it.

2. The other ground, though not so ridiculous, has less colour of Law, which was the King's Pow­er, for the benefit of particular Persons, to dis­pense with Acts of Parliament restraining Trade; from whence they would infer an equal Power of restraining, where Common or Statute Law gave a Liberty. But without the help of such false Me­diums, I doubt not to prove very plainly, that [Page 5] neither Common nor Statute Law, give any Coun­tenance for interloping within the Extent of the East-India Company's Charter: and that such as trade thither, not being of the Company, or li­censed by them, incur the Forfeiture of the Ships and Goods with which they interlope, and that ac­cording to the Law of England, as it has been taken ever since Foreign Trade appears to have fallen under its Regard.

That the Company's Charter and Proclamations thereupon prohibit interloping upon such Penalties, is not denied: So that the only Question here is, What Countenance such Prohibitions have in our Law.

Of Liberty of Commerce. Object. I meet with an Objection in the begin­ning, as if such a Restraint were against the Law of Nations; of which some suppose it to be a Max­im, that Commerce ought to be free: which is not implied in the publick use of the Sea and Shores al­lowed in the Civil Law to some Purposes: But Vid. Justni. Inst. de rerum div. Lib. 5. were it so, care must be taken for such an Inter­pretation, that one Maxim do not thwart another. Wherefore since according to the Law of Nations, of those things to which all have equal Right, special Property is acquir'd by Occupancy, or pri­mier Seizin; The Rule for Liberty of Commerce must be qualified so, as not to prejudice that Pro­perty, which has been acquired and improved at the Expences of others. According to which, in our Law, no Man can use his own to the Damage of his Neighbour's Property first setled. Where­fore, though we say, cujus est Solum, ejus est usque ad Coelum; yet a Man may not by building upon his own ground stop up his Neighbours more an­cient [Page 6] Light: Nor yet can he use his own to the Injury of the Publick, and therefore cannot turn [...] Inst. fo. 199. his Land into a Park, Chace, or Warren, without Licence from the King, who is intrusted for the Publick, to see that all, or a convenient Quantity of the Land usually plowed, be kept in Tillage.

But as to Commerce, there is no ground for the Belief that it ought, by the Law of Nations, to be absolutely free, either between Nation and Nation, or for all the Subjects of the same Nation: for this we must judg either according to natural Equity, or the common Practice of Nations. The first is cer­tainly against reaping the Benefit of another's Cost or Labour, and the Practice of Nations agrees with it; imposing Taxes upon Goods imported or ex­ported, and prohibiting Persons and Merchandizes as they see cause. And thus it was with the an­cient Romans, who had their Comites Commercio­rum; Vid. Hosmanni Lexicon Tit. Com. Commers. vid. Justin. Cod. Lib. 4. Tit. 40. Supervisors of Commerce; who were to see that none traded beyond the Bounds, or with other Merchandizes than were allowed by the Govern­ment: And what Freedom of Trade soever might be allowable where it depended only upon a Liber­ty granted by one Prince to the Subjects of ano­ther, all standing in equal Capacity as Subjects; yet where the Circumstances are such, that the Trade must be maintained by Garisons and armed Forces sent by the Traders, there can be no Rea­son for others to have any Liberty, till they have allowed their Proportion of the Charges. Nor No Monopoly. can this be looked upon as a Monopoly, odious in the Eye of the Law, till it is proved to be a Re­straint of such Trade as others were intitled to by Law.

[Page 7] But to come to those plain Authorities in Law which support the Companies Charters, it will ap­pear.

The King's Power to prohi­bit Persons from going out of the Kingdom not re­strained to parti­cular Persons. First, That at Common Law the King might prohibit any Person or Persons from going beyond Sea; and is Judg of the Grounds. The Ne exeat Regnum is served only upon particular Persons; but Fitz-Herbert tells us that the Subject may be prohi­bited by Proclamation as well as by Writ, and the N. Brev. ne exeat Regum. Reason given extends to all, because every one is bound to defend the King and his Realm. Where­fore this is rightly explained in Dyer, where 'tis said to be agreed by Fitz-Herbert, ‘That the Dyer. fo. 16 [...]. [...]. King may by his General Proclamation, or Spe­cial Prohibition restrain his Subjects from going beyond Sea.’ There is indeed a Query put upon the Suggestion in the Writ, which in Dyer is thought not to be traversable.

5 R. 2. C. 2▪ The Statute which excepts notable Merchants from need of Licences to go beyond Sea: 1. Gives no Power against a Prohibition. Nor 2. Were any Merchants notable in the Eye of the Law, but those of the Staple, which at the beginning were only Foreigners, as appears not only by Magna Char­ta, Vid. infra 27. Ed. 3. which provides for no other Merchants; but more particularly by the Statute of the Staple, which prohibits English, Irish, and Welsh, from carrying Staple Commodities out of the Realm. Vid. Rolls Ab. Tit. Prerog. This the King had dispensed with, but our Mer­chants Denizens not thinking that sufficient War­rant, obtained an Act 34 Ed. 3. to give them the same Liberty with Foreigners, which was a mani­fest Departure from the ancient Policy of the King­dom, for bringing Foreign Merchants with their Mo­nies hither.

[Page 8] The King's Power in erect­ing Societies for Trade and re­straining others. Secondly, The King might at Common Law e­rect Societies or Companies for the Maintenance, Enlargement, or ordering of any Trade of Merchan­dize, and none to have Liberty to trade in such Commodities, or to such Parts as are limited, but those that are free of such Societies, or licensed by 21 Jac. 1. c. 3. them: this appears in the Statute of Monopolies, which excepts such Companies out of that Law, and the East-India Company having Existence then, is manifestly within the Exceptions.

This Power of erecting such Societies exclusive 12 H. 7. c. 6. of others, appears more antiently, 12 H. 7. The Merchants Adventurers of several Parts of England petitioned the King in Parliament, setting forth the Liberty they had to trade to many Places in League and Amity with the King, but that the Merchants Adventurers of London, exacted of them 40 l. Fine for Liberty to buy and sell at the Marts. The Act gives them free Passage, Resort, Course and Recourse to the Marts in Flanders, Holland, Zealand, Brabant, and the Places adjoin­ing thereto, paying only ten Marks to the Com­pany.

This gives no larger Liberty, only lessens the Payment for it, and but to such Places as are speci­fied in the Act.

1 Rolls f. 4. The Case of the Taylors of Ipswich, and others of the like Nature, wherein Restraints of Trade by the By-Laws of Companies have been condemned, come not within this: For 1. They are of Inland Trade. 2. In that case no Man was to exercise the Trade, but such as the Master and others of the Company should approve of, which might occasi­on a total Restraint.

[Page 9] The King's Power in Rela­tion to Staples. Thirdly, The King might erect Staples, or Trea­suries for Commodities of home-Growth or Manu­facture: and no Man could, without the King's Licence, engross Quantities of these to carry else­where, than to Domestick or Foreign Staples: Nor, Vid. 12. H. 7. Sup. as appears by the foregoing Head, could carry to the last, unless he were a Merchant of the Staple, or licensed by them.

Foreign Staples depended upon the King's Trea­ties with Foreign Princes; and upon any Inconve­niences arising, either the King's Grant of the Sta­ple, Vid. 21. E. 3. N. 10. 22. E. 3. N. 12 & 13. 3. H. 5. 18 E. 3 Rot. Parl. Interpet. Com. 5. his Treaty with the Prince, or the Prince's Ambassador residing here, were to be consulted. And the Statute 18 Ed. 3. shews, that the King alone had granted a Staple at Bruges, which Grant they do not in the least question, but pray redress upon some Inconvenience which had arisen by an Vid. infra. Ordinance made in Flanders.

Till the Staples came to be fix'd in Parliament, the King of his own Authority appointed them with­in his own Dominions, as is evident by the Statute of 2 E. 3. (which says, that the Staples ordained 2 E. 3. c. 2. by Kings in times past shall cease) at least as this is explained by subsequent Parliamentary Proceed­ings.

47 E. 3. N. 17. ‘The Commons 47 E. 3. petition that the Sta­ple may be at Calais, and that no Patent or Grant be made to the contrary.’

Res.

‘The King will appoint the Staple as by Coun­sel he shall think best.’

50 E. 3. Yet it appears that before the 50 th, the King had of his own Authority appointed it at Calais; for the Commons then, in their Complaint against evil Counsellers, desired it may be enquired of such [Page 10] of the King's Council, as transported Staple-Ware and Bullion to other Places than Calais.

Nay, though it seems it had been discontinued, he had by Assent of his Council appointed it at Ca­lais Clause 41. E. 3. n. 21. d. Special License, notwithstanding a general Re­straint. before the 47 th, for in the 41 st, reciting such his Establishment, he gave special License to some to carry Goods elsewhere: And the Statute of 25 E. 3. c. 2. takes special Care to preserve the Sta­ple at Calais by a saving to that Act.

50 E. 3. N. 53. In the 50 th of E. 3. The Countries of Lincoln, &c. pray that the Staple may be at Lincoln, as it was at the first Ordinance; and not at St. Botolph's.

'Tis answered, it shall continue at Botolph's at the King's Pleasure.

2 [...]st. f. 61. The Resolution 1 Eliz. that a Grant for Malmsy to be imported only at South-hampton was void, is not contrary to this Power of the King▪ in confining Trade to a particular Place: because it was by an express Act of Parliament made lawful to carry 27 E. 3. c. 6. Wine to any Port: And I am treating here only of a supposed Liberty at Common-Law; and the Restraint of such Liberty.

The Inference. If then the King can prohibit Trading to any Parts of the World, but where he fixes his Staple, unless the Trade be opened by Act of Parliament, and yet may license some to trade elsewhere; much more may he prohibit Trading in or to some one Place, yet license others to trade there; for a Pro­hibition of Trade to any Place but one, or some few, certainly argues a greater Power than to prohibit, only in Relation to some particular Places.

The King's Power to prohi­bit even Staple-Wares. Fourthly, As the King might prohibit the carry­ing out Staple-Commodities elsewhere than to the Staple; so he might, when he saw cause, prohibit even the carrying such thither.

[Page 11] Pat. 3 E. 1. m. 22. de neg [...] ­tils Mercat. Fland. Thus tho Wool was a Staple Commodity, I find, a Pardon for the Exportation of prohibited Merchan­dize of Wool, upon Submission and Fine to the King.

But because this may possibly be for trading else­where than to the Staple, this Power will not fully appear till we come to that Exception, for the King's Prohibition, which, as I shall shew, runs through those Statutes which are the most in Favour of Mer­chants; yet it was admitted in the Argument of Sand's Case against the Company, that in time of Plague, or when the Commodities are needful here, the King may prohibit the exporting even those of the Staple.

The King's Power to prohi­bit Commodities not of the Sta­ple. Fifthly, The King might prohibit the Exporta­tion or Importation of any Commodities not of the Staple, as appears beyond Contradiction from the Petition of the Commons, 1 H. 5. with the King's Answer to it.

Rot. Parl. 1. H. 5. ‘The Commons pray that all Merchants may export to any place, or import from any place any Goods, except Goods of the Staple, at their Pleasure, notwithstanding any Proclamation to the contrary.’

This is denied: for the Answer is,

Le Roy voet estre advise.

This indeed some will have to be occasioned by an Embargo in time of War: but it appears by the Circumstances of the time, that there was none then, or any immediate Preparation for one; besides if there were Wars, 'tis highly improbable that the Commons would pray a general Liberty of Trade.

But farther, to confirm this Power in Relation to Commodities which were not Staple. Butter and Cheese having been Commodities of the Staple, but [Page 12] distapled, by reason of not being able to bear the 18. H. 6. c. 3. Charges incident to the Staple; though leave was given to carry them to any place in Amity; there is an express Proviso, that the King may restrain the same, when it shall please him.

No such Liberty of Foreign Trade at Common-Law, as Men fancy. Now whereas Men fancy that at Common-Law every Man had an entire Liberty to trade to any parts; let us consider the true State of Trade, and it will appear, that if the Statutes do not help (which I shall soon consider) Merchants Deni­zens have no Pretence to Liberty, especially a­gainst the King's Prohibition; unless it be to places where Trade is opened by particular Sta­tutes; V. 3. I. 1. c. 6. as to the Dominions of Spain, France, Por­tugal, &c. Or to Staples, which were at first erect­ed by the King's sole Authority. Till the Statute 34. E. 3. they could not trade abroad in Person even with any Staple Commodity: Other Trade must be carried on with Gold or Silver, or with Goods and Manufactures not Staple.

V. 2. H. 6. con. firmed. 17 E. 4. made perpetual. 3 H. 7. c. 8. altered, 15. C. 2. c. 7. The Exportation of Gold and Silver, the Kings might have prohibited at their Pleasure till 15. Car. 2.

And it appears by the Statute of 2. H. 6. that the Staple at Calais took in all Merchandize from hence, besides Woollen Cloth and Herring: For Woollen Cloth the Staple was at Flanders. So that Herring seemed the only Trade at Liberty: which however, being Victuals, was within the Reason of the Provision in the Statute of 18. H. 6. concern­ing Butter and Cheese. And the common Course of Restraints by the King's Proclamations.

40. Ed. 3. N. 40. d. Victualia. Thus I find a Proclamation in the 40 th of Ed. 3. against carrying Corn or other Victuals from the Isle of Wight.

[Page 13] 46. Ed. 3. N. 21. d. Another afterwards against carrying Wine out of England.

36. E. 3. Rolls tit. Prerog. And an Indictment in the 36 th for carrying Corn beyond Sea, against the King's Proclamation.

The Statutes ex­press or imply the King's Power of prohibiting. Sixthly, The general Course of the Statutes ex­press or imply the King's Power of prohibiting Goods and Persons.

Magna Charta c. 30. This does Magna Charta it self very plainly, and so as to serve for an Explanation unto all other Sta­tutes concerning Merchants.

‘Let all Merchants, says it, unless they were publickly prohibited before, have safe and sure Conduct to go out of England, come to England, and stay and go through England as well by Land as by Water, to buy and sell without evil Toll, unless in time of War, or that they are of the Enemies Land.’

This, as the Lord Coke rightly observes in this Particular, relates only to Merchants Strangers, which shews that no others were then known: If it takes in Denizens, then Letters of safe Conduct, or other Licenses, are requisite for them to apply for, before they can have such Liberty. Accord­ing to which I find Letters of free Trading and safe Conduct to Merchants coming into England, tam indigenis quam alienigenis, as well Natives as Pat. 50. H. 3. m. 20. de Mer­catoribus veni­entibus in Angl. Foreigners, 50. H. 3. Though Merchants Denizens are not taken notice of as trading by Sea, 9. H. 3. It seems by the 50 th they who had used to enrich themselves by the Monies of Foreigners, fell to Foreign Trade themselves, and for ought appears to the contrary, did this by Vertue of Letters of Free Trade from the Crown; Nor was Trade wholly 2. E. 3. c. 9. enlarged, 2 ^o. E. 3. when 'twas enacted, ‘That [Page 14] Merchants Strangers and Privy, may go and come with their Merchandizes into England, af­ter the Tenor of the Great Charter,’ which re­ferring wholly to the Charter, leaves it as it was before. Indeed there is likewise a Provision that Staples shall cease, but that was but temporary; no more being necessarily implied in the Word cease: Vid. sup. p. 9. However this can reach no farther than to Staples appointed before that time without restraining fu­ture Appointments, which appears not only from the Import of the Words, but by the constant Practice after.

Whatever Liberty the Great Charter gives, it is to such as take Letters of Conduct, or at least have not been publickly prohibited.

But the Lord Coke must needs be under a Mistake, where he makes the Publick Prohibition to be no other than by Parliament. For unless he supposes all Staples to be taken away absolutely by Magna Charta, contrary to the express Allowances of following Statutes, the Kings prohibiting Sta­ple Goods to be carried elsewhere than to the Sta­ple, is a lawful Publick Prohibition within that Sta­tute. And whatever Prohibition is lawful, must be Publick within the Statute; for otherwise it is not lawful. But they that argued against the Compa­ny's Charter, admitted that the King might prohi­bit exporting Goods, when needful for the King­dom, and in times of Plague, and the like: Where­fore such Prohibition is sufficiently publick: but to say that the King might in such cases, but not otherwise, is either a giving up the Question of pub­lick Prohibition, or else a begging it, in supposing that others, though as publick, are not within the Prohibition.

[Page 15] The great Statute relied on for Liberty of Foreign Trade, is 18. E. 3. the Words of which in the 18. E. 3. c. 3. Print, are these;

‘Every Man as well Stranger as Privy, from hence-forward may buy Wools, according as they may agree with the Seller; as they were wont to do before. And that the Sea be open to all manner of Merchants to pass with their Mer­chandizes where shall please them.’ To shew how little Warrant there is, for what Men would gather from the Print, 'twill be requisite to set down the Words of the Record:

Resp.

Answ.

Upon which it is observable;

1 st. That the King's Power of erecting Staples is allowed, and the Staple of his erecting is continued by this Statute: For though leave is given to buy Woolsany where in England; Bruges still remained [Page 17] the Foreign Staple, to which all Wools that were exported were to be conveyed.

2 dly. That this being only a Liberty to buy Wools in England, does not in the least imply a Li­berty for Merchants to pass abroad with their Mer­chandizes where it shall please them: for that would be wholly to destroy the Foreign Staple, which is by no means taken away: Wherefore if either the Writ to the Sheriff, or the Proclamation thereupon, mistake the Liberty there mentioned, which Merchants formerly had, to pass by Land and Sea from Flanders, as if it related to passing from England, and that through the Inadvertency of the Compiler of the Statute-Book, be foisted in for the Act of Parliament, I am sure it neither is, nor ought to be of any Avail.

And 'tis further to be considered, that even that Liberty which is given by this Act to buy Wools any where in England, is restrained by the Statute of the Staple, nine Years after, which erects Staples 27 E. 3. in several parts of England, to which all Wools, &c. which shall be carried out of this Realm shall be brought. Nor are they according to that, to be exported by Merchants Denizens.

Nor do the Statutes 25 E. 3. & 2 R. 2. which provide that Merchants 25 E. 3. c. 2. 2 R. 2. c. 1. Mem. in Horn. & Jvy's c. 1. Syn­derf. fo. 441. It is held by some that at Common Law the King might pro­hibit the importing of Goods: And if it be done contrary to the Prohibition, the Ship which carries them shall be forfeited. But this is falsly supposed to be altred by these two Statutes. Aliens, and Denizens may buy and sell all things vendible, of and to whom they will; amount to a ge­neral Liberty for Foreign Trade. For,

1. There is a saving to the Staple of Calais.

2. The Title and Preamble shew, that 'tis only to buy and sell within the Realm without Disturbance.

[Page 18] 3. The Remedy is only against Disturbances in Towns &c. within the Realm.

The only Refuge that I am aware of, is, The 15 Car. 2. c. 7. Act for Encouragement of Trade, 15 Car. 2. and some others of the like Nature. In that there is a Liberty given for exporting Corn or Grain when at certain Prizes, into any Places beyond the Seas as Merchandize. But 1. This being for Merchandize, can reach to no other places besides those whose Trade is lawful. And as no Man can say that by this Act they may send this to an Enemies Coun­try; neither, if the King may by Law prohibit sending to any other, may it be sent thither. Wherefore the publick Prohibition excepted in Magna Charta must needs run through this Act. 2. The Statute says only, notwithstanding any Law, Statute or Ʋsage to the contrary, but provides not against future publick Prohibitions.

The Clause which enacts, that no Commodity of the Growth, Production or Manufacture of Eu­rope, shall be imported into any part of Asia, Afri­ca and America, unless in English Bottoms, with the Master and three fourths of the Mariners Eng­lish, gives no Liberty for all People to trade thither; but only requires the lawful Traders thither to go with English Ships, and such a Proportion of Eng­lish-men. Of the same Nature is the Provision The Act for the encouraging Na­vigation, 12 Car. 2. c. 18. concerning Goods or Commodities of the Growth Production and Manufacture of Africa, Asia, or America, 12 Car. 2.

The King's Power of prohi­biting upon Pain of Forfeiture. Seventhly, The King may by his Prerogative, entrusted with him for the Good of his People, prohibit the Exportation or Importation of cer­tain Comodities, upon Pain of Forfeiture of [Page 19] the Goods, and Ships which carry them.

41 E. 3. m. 21. dorso. Edward the third commanded that no Merchant Denizen should transport Cloth of Worsted, nor Merchant Denizen or Stranger, Coals, Sea Stones Fell-Ware, &c. to other Places than Calais, sub foris­facturâ Bonorum et Merchandizarum, under Forfei­ture of the Goods and Merchandizes.

This is likely to have been according to former Precedents of Staples: for whereas the Statute 2 E. 3. says, ‘ Staples ordained by Kings in 2 E. 3. c. 9. times past shall cease;’ So it says of the Pains thereupon, Provided. And the 27 th enacts, 27 E. 3. c. 27. ‘That all who shall be convict that they have brought Wools, Leather, and Woolfells to the Parts beyond the Sea, against the Defence of the Proclamation thereof made, before the making this Ordinance, shall be judged to prison, and in­cur the Forfeiture of the same Wools, Leather, or Woolfels, and all other their Goods and Chat­tels, and moreover be ransomed at our Will.’

Now I appeal to all rational Men, whether it is not more likely that there had been such a Penal­ty in the King's Prohibition, and that it was here confirmed by the Parliament, than that they should make a Penalty ex post facto, or encrease the Penal­ty before set.

But for the King to prohibit upon Pain of For­feiture was very frequent in that time, and as here it had a Parliamentary Allowance, so had it a judi­cial one in the foregoing Reign.

Vid. 2 E. 3. f. 26. A Charter had been granted to Great Yarmouth, that all Ships coming within the Haven, shall be discharged there, upon Pain of Forfeiture of the Goods. This had been adjudged valid before the [Page 20] Vid. s. 26. b. Council of E. 2. which being at a time when the Council was chosen in Parliament, carries as much Evidence of the Law of that time, as any thing can. Indeed Little Yarmouth in the time of E. 3. insisting upon the same Priviledg by another Char­ter, as it had done before the Council of E. 2. The Debate of that matter is adjourned to Parliament.

40 E. 3. N. 40. d. Exporting Corn from the Isle of Wight was pro­hibited upon Pain of Forfeiture, 40 E. 3.

So. 46 E. 3. N. 21. d. Exporting Wine from England upon the like Pain, 46 E. 3.

Clause 3 E. 1. N. 7. And long before this, Foreign Merchants, without mention of any War, had but 40 Days given them to sell their Wines in London.

And, as his present Majesties Proclamation prohi­biting the Importation of French Goods, and re­quiring the Sale of them by a convenient time to come, upon Pain of Forfeiture, and this without any Declaration of War but only for the Publick Good, is another great Authority on the Companies Side: So the Proclamation of 3 E. 1. is a Prece­dent in Point to justify the last; for no Man can doubt but Foreign Merchants had their Goods as much under the Protection of our Laws, as Na­tives had or have.

The King having Power to prohi­bit, the Forsei­tures incurred by the Marine Laws, take place. But admit that the King could not by his Procla­mation create a Forfeiture, so to be adjudged in Westminster-Hall; yet it being in Relation to Fact arising upon the High Sea, or the Ports beyond the Seas, falling within the Admiralty Jurisdiction and Marine Laws; if the King may by Law prohibit, then whatever Penalty the Marine Laws inflict up­on Persons or Goods, going contrary to Imperial or Regal Prohibitions, the same are allowed of in our [Page 21] Laws: Nor will it be any Objection to say that the Penalty is occasioned by the Prohibition in the Charter: for it is not supposed that barely trading thither is against the Marine Laws, unless such Trade were before prohibited.

Hoveden f. 666. As early as the time of Rich. 1. I find that om­nes per mare ituri, all Persons going by Sea, were subject to the Admiral's Jurisdiction. Vid. Crook Car. s. 216. ib. s. 438.

And parts beyond the Seas are within the same. The great Hales when he was of Counsel in a cause against the Admiralty, did not except against such 9 H. 4. N. 63. Ld. Admiral ti­ent ses Courts sur mer ou costs de mere etnemi deins franchise ne vill. Power; only that a Contract at New-England was not alledged to be in partibus transmarinis. But this Jurisdiction is proved at large by Mr. Pryn, in his Observations upon the 4th Institute.

Pryn's Animad. on the 4th Inst. The Kings Power at Sea, is more absolute than at Land, as appears by a memorable Record, 31 Rot. Pat. 31. E. 1. no. 16. E. 1.

Pat. 4. H. 6. The Admiral's Patents are to try secundum Legem Maritimam, according to Maritime Law; and Mari­time Law or Law Merchants, is by the Chancellor in E. 4th's time, held to be the Law of Nature, which 13. E. 4. so. 9. b. is Ʋniversal throughout all the World.

[Page 22] Wherefore according to this, the King has in these matters summum Imperium, without the Fet­ters of positive Laws of particular Nations.

But as far as the Provisions reach the Law of Ole­ron Mare Claus. f. 254. made by R. 1. as he came from the Holy Land, is the Law of Mer [...]an [...]s throughout the World, and Pryn. upon the 4th, Inst. fo. 81. Rot. Parl. 4.th 4. N. 47. 49, H. 3. 27. d. the Law of Nations [...]herein; and I find Provisi­ons made for Trials by the Law of Oleron, and an­cient Laws of the [...]: and 4 H. 4. Persons to be punished according to the Custom of the 5 Ports, which had a Collection of some Sea Laws.

By the Law of Oleron, Pyrates, Robbers and Laws of Oleron, c. 47. Sea-Rovers, may by despoiled of their Goods without Punishment. If this will not reach Inter­lopers as Sea-Rovers, at least the Civil Law, which is another Guide to the Admiral's Judgment, will.

Zouch de jure Maritimo, p. 20. [...]i res illicitae in navem positae sunt, Navis fisco vindicatur. If, says the learned Professor of the Civil Law, Dr. Zouch, things unlawful are put into a Ship, the Ship is forfeited. Again, he tells us Traders are proceeded against in Judgment, if they venture to go to buy or sell beyond places prescribed; and the Goods brought from thence are to be forfeited, and the Contracters to be subjected to perpetual Pu­nishments. And 'tis evident that for this he has the Warrant of the express Letter of the Civil Law.

Thus we find in the Codex.

Just. Cod. Lib. 4. [...]it. 40. Comparandi se­rict a Barbaris facultatem omni­bus, sicut jam praeceptum est praeter Comitem Commerciorum etiamnum jubemus auferri. N. All that were not of the Roman Empire or Grecians, were counted Barbarians. So Foreign Trade, or Trade with Foreigners prohibited. ‘We now command, as was formerly done, that Liberty of buying Silk from Barbarians be taken from all Persons except the Supervisor of Commerce.’

[Page 23] Again.

Codex. Lib. 4. Tit. 63. n. 4. Mer­catores tam imperio nostro quam Per­sarum Regi Subjectos, ultra ea loca in quibus faederis tempore cum memoratâ Natione nobis convenit nundinas exer­cere minime oportet, sciente utroque qui contrahit, species quae preter haec loca fuerint venundatae vel comparatae sa­cro aerario vindicandas, et praeter earum rerum et pretii amissionem quod fuerit numeratum vel commutatum, ex­ilii se paenae sempifernae subdendum. ‘Merchants, as well our Sub­jects as those of the King of Per­sia ought not to buy or sell out of those Places which were agreed to, at the time of the League with the said Nation. If this be done knowingly by either of the Con­tractors, the things sold or gained elsewhere than in these Places, are forfeited.’

Again.

Ib. n. 6. Si qui inditas nomination vetustis legibus civitates transgredi­entes, ipst vel pereginos Negotiatores si­ne Comite Commerciorum suscipientes fuerint deprehensi, nec proscriptionem bonorum nec paenamperennis exilii ul­terius evadent. ‘If any Persons are appre­hended either going beyond the Cities mentioned in the ancient Laws, or receiving Foreign Mer­chants, without a Supervisor of Commerce, they shall neither e­vade the Forfeiture of their Goods, nor the Pe­nalty of perpetual Banishment.’

Upon all which Authorities, I think it no strain­ed Conclusion, That if the King may prohibit Foreign Trade in any case, (and all must agree that he may in some, for the Publick Good) he may in such case prohibit it under the Penalty of Forfei­ture of Ship and Goods; especially if he direct that they shall be proceeded against by the Admiralty's Jurisdiction, which is provided for by late Charters to the East-India Company.

1 Syders. f. 441. I must not here pass by the Case of Horn and Jvy, which seems to lye in my way: There indeed [Page 24] the seizing a Ship as forfeited by Virtue of a Char­ter to the Canary Company, is held unlawful. But it is to be considered; 1. That it was without Le­gal Process. 2. The Justification of the seizing was without Warrant: only by Commandment from the Company, which could not be sufficient. 3. The Statute 3 I. 1. had enabled the Subjects of England to trade freely into the Dominions of Spain. And the Distinction took by the Judges then, that the Canaries were of the Dominions of the King of Spain, but not of Spain it self, might be true; yet it is not likely that the Parliament intended a nice Enquiry into the several Tenures, or the Titles which the King of Spain had, to all the Parts of his Dominions. 4. But, be this Authori­ty never so express, the Reporter assures us some held otherwise: Nor could the unanimous Opi­nion of the Court of King's Bench, be enough to turn the Stream of the greater Authorities which I have produced.

Second Charge of Power over Life. The Power over Life exercised under the King's Authority, is of greater sound, but not of any higher Nature, than the foregoing: For according to the Degrees of Power over Property, so it must by Consequence be over Persons: And it will be no harsh Supposal, that if the King is not tied to the Rules of Common Law in Relation to Foreign Trade; neither is he as to the Persons of such Traders.

But to come more particularly to the Facts which occasion this Question: They are either Judgments of Death upon Trials had, in Pursuance of the Powers given by the Charter to the Governors up­on the Place; and these Powers duly pursued, or not; or else the like Judgments upon Trials [Page 25] had by particular Commissions for Martial Law.

If the Powers of the Charter were duly pursued, then the only Question will be, whether the King may give a Power to judg upon the Place, such as transgress the Laws either of England, or by-Laws made for that Place? If he cannot do this, 'twill be impossible to preserve any Foreign Plantations; and besides New-England, and all other English Co­lonies, have acted unwarrantably from the Begin­ning.

If the Powers in the Charter have not been duly pursued, that will be the Fault of the Governor entrusted with the Execution of them, but not of the Company, unless it appear that they have given such Instructions, which neither did nor could ap­pear, in their Case who were tried by the Gover­nour at St. Helena: It being immediately upon their Rebellion, before there could come any Orders from hence concerning them.

The heaviest part of the Charge, is, that of a Commission for Martial Law; which 'tis supposed that the Company obtained; & that some of the Com­mittee gave Instructions to have it put in Execution.

For this 'tis requisite to give a short Account of the Inducements to that Commission.

The People of St. Helena having risen to a Com­petency on a suddain, from the Grant of the Com­pany, had grown insolent with their good For­tune, and impatient of any Government; and four times rebell'd against the King's Auhtority admi­nistred by the Governours there, meerly for Rebel­lions sake, before they had any manner of Charge laid upon them for Maintenance of the Govern­ment: being only required to defend it with their [Page 26] Bodies, and such Arms as were given them by the Company; for which end they were bound to keep Guard in their turns, as well as to rise in general upon occasion: They having taken a Distaste at the Deputy-Governor, upon the false Suggestions of the most Seditious among them, came down to the Fort in an hostile manner, demanding the Depu­ty-Governor to be delivered up to their Fury; and it being refus'd, endeavour'd to force open the Gate.

Some would justify their Recourse to Arms, be­cause the Company finding more need of Defence against them than against Invaders, had been obliged to send Souldiers for securing the Peace; and discharging them from their ordinary Attendance, had required the Payment of one Shilling per Acre for this necessary Support of the Government. Whereas 1. There was no Stipulation with them that they should have any Vote or Interest, in the making any Laws or Provisions about the Govern­ments: However, 2. This which they would make a just occasion, was not done till it was ne­cessitated by this very Rebellion, which thus they would ligitimate by way of Prophecy.

The Rebels (for such they were against the King's Power administred there) being dispersed by the Company's Souldiers, some of them were taken and tried, and if the Witness produced a­gainst the Company, swore true, they were not­withstanding found guilty but of a Riot or Tu­mult. Which shews how little Justice was to be expected, when it was to be had by means of some of the Inhabitants. However they being taken in actual Rebellion, the Governour having by the Charter fo. 121. King's Charter, [ ‘In Case of Rebellion, Mutiny, [Page 27] or Sedition, as large and ample Power as any Captain General of the King's Army by Virtue of his Office;’] hang'd some for Examples, and detaining others in Prison, sent a Narrative of the Fact signed by others of the Council there; upon which Narrative, the then King thought fit to issue out his Commission of Martial Law for Trial of the rest, who were tried accordingly, and some executed.

That this Trial by Martial Law, is warranted by the Law of England, will appear beyond Con­tradiction: it being for a Fact committed beyond the Seas. For,

13 R. 2. Stat. 1. c. 2. 1 st. At Common Law the Constable and Mar­shal have the sole Jurisdiction, in criminal Causes arising from beyond the Seas, as appears by the declaratory Stat. 13 R. 2. which says,

And indeed 'tis evident by numerous Authori­ties, that the Courts at Westminster could not take Cognizance of such Fact; to mention but one, as early as E. 2. 'tis held without Con­tradiction, that to a Fact done out 18. E. 2. f. 613. Al fet set hors de jurisdiction de c [...]inz ou hors de realm si come a Paris ou aillours oustre mier jeo ne deit respond. of the Jurisdiction here, or out of the Realm, as at Paris, or else where be­yond Sea, I ought not to answer. Vid. the Comis. to Earl Rivers, 7. E. 4.

The Constables Commission refers to the Practice in the time of W. 1. Ab antiquo, Viz. tempore dicti Do­mini Gulielmi Conquestoris Progenito­ris nostri seu [...] aliquo tempore citra, &c. summarie et de plano et sine stre­pitu et sigura judicii. and since, and shews that the Pro­ceedings there, have from the earliest times been in a summary way, without Vid. Spelman Glos. tit. Constab. 37 H. 6. f. 20. h. regard to our forms of Law. And it is held by Prisot, 37 H. 6. and [Page 28] not denied, that the Proceedings before the Consta­ble and Marshal are to be by the Civil Law.

2. This Power for exercising Martial Law, is not taken away by any Statute. The only Statutes which may be supposed to affect it, are 26 H. 8. c. 13. and 35 H. 8. c. 2. both of them for Trial here of Treasons committed beyond the Seas; and that part of the Petition of Right, which concerns the Exercise of this Law.

Neither of which take away this Power; for it being a Power at Common Law, those Statutes of H. 8. which authorize Trials here, by no means 4 Instit. s. 124. remove it, as is held by the Lord Coke. And that manifestly agreeable to the course of Authorities in the like kind; there being no negative clause▪ pro­viding that such Trials shall not be had elsewhere, or in other manner than what is there enacted.

That the Petition of Right does not touch this, is as plain: for,

Petition of Right, 3 Car. 1. ‘The Petition is only against the assigning and appointing Commissioners, with Power and Au­thority to proceed within the Land, according to the Justice of Martial Law.’

2. It is not against proceeding for Fact, arising out of the Land, but such only, for which Men were by Law punishable here, by Magna Charta and other Statutes declaratory of the Common Law, before the Statutes 26 and 35 H. 8. where­as Martial Law was within Magna Charta, and those other Statutes, part of the Law of the Land, in Relation to Fact arising from beyond Sea. And whereas the Petition says, ‘No Persons were ex­empted from Punishments to be inflicted ac­cording to the Laws and Statutes;’ It shews that [Page 29] it speaks only in Relation to Fact arising here; for otherwise they were exempted.

3. But farther, that the Petition of Right was never intended to touch the Constables or Marshals Common-Law-Jurisdiction, appears from the De­bates which induced the Petition.

Vid. Rush. Hist. Col. Append. f. 77. ‘I agree, says the Learned Banks, then Attor­ney General, and afterwards Chief Justice of the Common-Pleas, in some particular Cases the Martial hath Jurisdiction, as in matters whereof the Common-Law can take no notice,’ being done out of this Realm, and also for the Treasons and Murders beyond Sea.

I need not labour to prove, that the same Pow­er which the Constable and Marshal, or either of them, had at the Common Law, may be granted to several Commissioners: The Substance of the Pow­er not consisting in the Name or Number of Offi­cers: and I think no Man will question but the present Lords Commissioners for the Great Seal had, before the late Statute concerning them, all the Pow­er which the Chancellor or Keeper had, at the Com­mon-Law.

Commissions for the executing Martial Law, have been frequent in most Reigns, and such as are full Precedents for that Commission which was executed at St. Helena: To make which evident, I have in the Appendix transcribed one at large, Vid Append. granted even in Queen Elizabeth's time, and refer to another of the like kind, in the time of J. 1.

Object. It may be said, That it is not agreeable to the Martial Law, that others joining with Souldiers▪ should be punished as Souldiers. To which I answer:

[Page 30] Answ. 1. That though this might be a question in other Cases, yet it can be none in the Case of open Re­bellion, where Rebels make themselves Souldiers. And it is observable that the Petition of Right makes no Provision against the Trial of such, even for Facts committed here: for it mentions only Vid. Crook. Jac. s. 495. No Trea­son can be par­don'd but by ex­press Words men­tioning it. Murthers, Robbery, Felony, Mutiny, or other Out­rage or Misdemeanor, proceeding from the higher to the lower Crimes: but Treason is neither included in them, nor ever placed in the Rear.

2. The Planters at St. Helena might well be look'd upon as Souldiers, not only as they were in open Rebellion, and went thither as Souldiers; N. They were not discharged from this till afterwards. but by the Constitution of the Place, were bound to ordinary Duty by Day and Night, in their turns, with the Companies Arms; had their seve­ral Posts assigned them, and were to attend upon all Alarms at the firing of a Gun.

Object. 2. It may further be said, That Martial Law ought to be exercised only flagrante bello. But then there would be little Difference, if any, be­tween a Fact committed here, or beyond Sea: for the Petition of Right allows it here in time of War; condemning only the Exercise of such a Power as it agrees to be used in Armies in time of War. But matters hapning abroad, being triable by Martial Law here, or by Commissions from hence, 'tis evident that there must be time allowed for Informations; which being from a great Di­stance, cannot be speedy.

If it be said, That the Governor might have ex­ercised this Power upon the Place, perhaps it may be better that he should stay for Orders from hence, than that so large a Power should be used at his [Page 31] Discretion. Besides till he was reinforced from England, and Pardons were sent from thence, which several imbraced to the breaking the Party which had conspired and acted together, he want­ed Power to execute such an Authority.

But did not the Common and Statute Law of the Land, the Civil Law of the Romans, or other Maritime or Marshal Laws, afford sufficient Mat­ter for an Apology, we might have Recourse to the Foundation of them all, and what upon Emer­gencies superseeds all, the Salus Populi: To which the Interest both of Prince and People must give way; whenever there is a Competition.

It is necessary that this should be preserved: And the Law of Necessity is ever held superior to Forms and Provisions for common Cases. This indeed is duly taken by the Lord Hobart to be a Law only for the instant Time. But if it does ap­pear that the East-India Company is for the Benefit Necessitas est Lex temporis scilicet instantis. Hobart. of the Publick; and if the Powers which it exer­cised by Grant from the Crown, were at the re­spective times of using them, necessary to preserve their Trade or Interest in those Places, which they had obtained from the Crown, or their own Ac­quisition allowed by that: then this may plead their Excuse for what was done in such Circum­stances: though indeed it be no Argument that such Powers should be constantly exercised for the future, without a Parliamentary Establishment. That an East-India Company is for the Good of the Nation, is now past Controversy, and is not only admitted on all sides; but they who would destroy this, would be of a new one, that themselves might share in the Spoils of the Old. If therefore [Page 32] the destroying this, the taking from its Credit, or lessening the Powers which it has; though the like Powers should immediately be vested in ano­ther; may indanger the Loss of Trade, or Dimi­nution of the English Interest in India; then 'tis certain 'twill be more expedient that the old Com­pany should have a Supply of such Powers as are supposed not to be Legal, than that it should be lessened in any Respect.

If this Company were dissolved, then what­ever Advantages are gained by any Treaties with the Indians, or by their own prudent Management among them would cease.

Nay whatever tends to the sinking its Credit, not only makes the Trade with the Indians to be upon more disadvantageous terms, but gives such an over-Ballance of Credit to our too powerful Competitors, as perhaps may not be retrieved a­gain in some Ages. The denying the English Company that Power, which is exercised there by others, would deprive it of means necessary to its Preservation. It being impossible that a People at such Distance can receive Laws from hence for all Emergencies, timely enough to obviate their Designs, who act by full Power upon the Place. And the very transferring this Power to another Company, but newly entred upon the Methods of advancing its Interest in the Indies, may occasion the hazarding that publick Benefit, which the Na­tion is now in Possession of. Nor ought it to be put upon the chance of an uncertain Experiment.

But what arises from the Political Consideration of this matter, has been already set in so clear a Light, by an Hand the best able, that for me to [Page 33] add any thing further, might be but the casting cold Water upon Arguments, which could not o­therwise fail of maintaining a warm Impression in the Readers.

The Obection from the Consi­deration of be­ing English-Men, answered. If it be said, that the Parties over whom this Power has been exercised, were English-Men, and carry the Rights of such along with them.

'Tis certain, these cannot be enjoyed in all Places; for then they would have the same in the Dominions of other Princes, notwithstanding the local Allegiance due by the Law of Nations, by reason of Protection, according to their respective Laws.

If Men will venture their Lives and Fortunes beyond the Protection of the English Laws, 'tis at their own Peril, and they must submit to the Con­sequences of it; and what those Consequences may be, will the better appear if we consider the Nature of those Places from whence the Questions arise.

They had been granted to the Company from the Crown, reserving the Soveraignty: And were either 1. Such Plantations or Colonies as King C. 2. had with his Queen, for­merly N. Anno 1667. Ʋpon a Referenc [...] to the Judges by the House of Lords concerning the Canary Trade, they de­clared, that though the Canaries were the Dominion of the King of Spain, they were no part of the Dominion of Spain. belonging to the King of Por­tugal; which being the King's in his personal Capacity, and never annex­ed to the Crown of England by any Act of Parliament, were evidently no part of the Dominion of England.

2. Such as were gain'd by primier Occupancy, as not being prepossess'd by the Subjects of any other Government.

3. Acquired by Conquest absolute, or upon terms.

4. By Purchase for Goods or Mony, or by the way of Exchange for Lands or Territories.

[Page 34] That of Purchase, may fall indifferently under the same Consideration either with absolute Conquest, or with that upon terms; according to the Nature of the Purchase, or thing purchased. Occupancy, un­der the same with absolute Conquest; because there were none to make Terms for themselves. And if the Agreements between the Conqueror and the Con­quered have the force of Laws, by Parity of Rea­son where there is no Agreement, as in Places gain'd by Occupancy or absolute Conquest, the Prince's Pleasure sufficiently declared and made known, will have the same force.

Though the Soveraignty of what Subjects gain by the Sword, or Purchase, accrues to the Prince; it is not so clear, that the Prince acquires for his Subjects; for then that Acquistion which W. 1. made by his Victory over Harold would have rendred England an Accession to Normandy, as our present Soveraign's Victory over J. 2. would have subjected England to the Low Countries.

If indeed an absolute Conquest, leaving no Pro­perty to the Natives, were carried on at the charge of a Nation, or of any Body Politick, or single Persons, such would have a fair Pretence to a Le­gal Interest or share in the Soil, though not in the Soveraignty. But when the King gains a Sove­raignty, where the People in general have no Pre­tence of Interest in the Property, it may be a question whether the Laws of Property here, and for securing Liberty, which follows that, can be of any force there. And whoever transplants him­self without any Property, must be presumed to submit to the Laws and Customs of that Place where he expects to gain one.

The only Question material here, as giving [Page 35] Light to the rest, is, what, according to our Law, is the Effect of Conquest upon Terms; That in such case the former Laws and Customs of the conquer­ed Country remain, if stipulated for, appears from the Nature of the thing, and is confirm'd by our Law; of which Wales affords a plain Instance: that anciently had been Feudatory to England, and afterwards conquer'd by E. 1. that which is called Vid. Stat. of Ruthland, 12. E. 1. Practi [...] Walli [...]. the Statute of Snodon or Ruthland is manifestly no Act of an English Parliament, but an Agreement between the King and them; wherein he approv'd and allow'd of some of their old Laws, and alter'd others by the Advice and Consent of his Peers that were with him at Snodon; which being in Wales, 'tis not likely that an English Parliament should be summon'd thither; nor are any Footsteps of one Vid. Vaughan of Process into Wales. f. 444. to be found. Nay, though Wales was afterwards by Act of Parliament incorporated and annex'd to the Realm of England, and it was provided that they should enjoy all Rights, Laws, and Liberties, N. The Title in Keebles Col­lection is wrong. as the Subjects of this Realm, notwithstanding any Act, Statute, or Usage to the contrary: Yet it has been held, from the Title of the Act, That many Vid. Dyer 363. b. Welsh Customs remain, the English Form of mi­nistring Laws and Justice being observed.

But there was no Question but till the making that Act, all the Welsh Laws and Customs allow­ed at Ruthland were in full Force. And this, tho Wales had been conquered at the Expence of the English Nation; (which cannot be said of any part of the Indies) and is by the Statute of Ruth­land declared to be united to the Crown of England, as a part of the same Body. And whatever Eng­lish-man went to inhabit in Wales before the Act of Union, particularly introducing the English [Page 36] Laws; though he were within the King's Domi­nions, yet was he subject to the Laws and Customs of Wales.

Nay farther yet, W. 1. gave Power to several of his great Lords to conquer what they could from the Welsh Nation. Of which, to use the Words of the learned Judg Doderidge;

M. 9. E. 1. I find a memorable Record of this matter, 9. E. Coram Domino Rege Rot. 35. Gilbertus de Clare Comes Glouc. qui cla­mat tenere ter­ras suas in Gla­morgan ficut re­gale quidvis, &c. 1. before the King in Council.

Gilbert of Clare, Earl of Glocester, who claim'd to hold his Lands in Glamorgan, sicut regale quidvis, as any thing Royal, or any Royalty, by Order of the King was required to answer a Suit or Com­plaint against him. ‘But he pleads that he holds those Lands, of his own and his Ancestors Con­quest: by reason of which he conceiv'd that he ought not to answer any one for any matter from thence, without the Judgment of his Peers [Page 37] of England, and of the Marches of Wales; who use the same Liberties in their Welsh Lands. And I find it rested here.’

Placita Parl. 20. E. f. 77. In the 20 th of the same King, in the great Case between the Earls of Glocester and Hereford: A Jury of Peers and others being summon'd; the Peers not only refuse to be sworn, as being a­gainst their Priviledg, but say, No like Royal Man­dat ever came into those parts for Causes concerning the Marches, to be tried otherwise than according to the Ʋsages and Customs of those parts.

Thus it appears that not only the King's, but the Subjects Conquests, enjoyed their peculiar Laws and Customs.

As I know not that I ever opposed any Royal Prerogative warranted by Antiquity or immediate Necessity: neither do I, that I have here advanced any, not so warranted.

But if both Common and Statute Law, yield such Countenance as I have shewn, for the King's prohibiting to trade to particular Places, all but such as he thinks fit, upon the Penalty of forfeiting Ship and Goods; and that this Forfeiture may be taken, at least under the Admiralty-Jurisdiction granted to the Company: If Martial Law in Relation to Fact arising beyond the Seas, may be exercised according to the Rules of the Civil Law, and it appears not that the Company have gone be­yond those Rules: If yet farther the Rights and Priviledges of English-men may receive Al­teration, according to the Place to which they come, though within the King's Dominions; then to punish any Member of the Company, for pro­curing or acting under such Powers as have been complained of, may seem very hard.