THE ARGUMENT OF A Learned Counsel, UPON AN Action of the CASE Brought by the East-India-Company, AGAINST Mr. Thomas Sands, an Interloper. LONDON: Printed, for B. Aylmer at the Three Pigeons in Cornhill, 1696. De Termino Paschae, Anno xxxvi. Caroli II. Regis: In Banco Regis. Gubernator & Societas Mercator' de London in Oriental' Indiam negotiant'. against Tho. Sands. AN Action upon the Case, wherein the Plaintiff declares, That, Our Lord the King, 3. Apr. 13 C. II. by his Letters Patents, reciting that the Company of Merchants trading to the East Indies, have been long a Corporation, and enjoyed 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 Governor and Company of Merchants of London, trading to the East Indies, That they should for ever be a Body-Politique by the Name of Gubernatoris & Societatis Mercator' de London in Oriental' Indiam negotiant'. Ac eos per Nomen Gubernatoris & Societatis Mercator' in Oriental' Indiam negotiant' Vnum Corpus Corporal' & politicum in facto & nomine realiter in perpetuum fecit, ordinavit, constituit, stabilivit, & declaravit per Literas Patentes illas. With Powers to purchase, sue, and be sued by the Name of Governor and Society of Merchants of London, etc. 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 employed by the Company, in the said Trade, to the East Indies, beyond the Seas, might traffic and use the Trade of Merchandise 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 public Assembly 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 otherwise; 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 Factors, Servants, and Assigns in the Trade of Merchandise, shall for ever have the whole and sole Trade and Traffic, and the whole Freedom, Use and Privilege of trading and merchandizing, to and from the East-Indies, 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 Subjects, that none of them shall visit or frequent, or trade in the East-Indies, unless with the Licence and Agreement with the Company, first had under their common Seal. That by Virtue 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 granted, were not, nor yet are Christians, nor Subjects of any Christian Prince or State, but Infidels, Enemies, and Adversaries of the Christian Faith: And that their Trade hath been to the Profit of the whole Kingdom, and Increase of the King's Customs. That this Trade cannot be carried on but by a Company or Body Politic. And that from the making the Letters Patents, they have had, and aught 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, Factor, Apprentice, or Servant, or Assignee 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 certain Places called Atcheon, Mecklapaton, and Porto Novo, with a Ship called the Expectation, hath traded and merchandized. And divers Wares in the said Ship, to these Places transported, there bargained and sold, and other Merchandise there bought, and into this Kingdom 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 Assembly, 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 Governor and Company, and every particular and several Person that now is, or hereafter shall be of the Company, shall have full and free Liberty and Licence, in form aforesaid, to and from the said East-Indies, according to the Orders, Ordinances and Agreements hereafter to be made at their public Courts. In the Recital of the Clause prohibiting 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 Merchandise he shall bring into the King's Dominions, contrary to the Purport of this Charter; or which the Company shall find in the East-Indies, where they traffic; 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 Consideration 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 Company, 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 Assembly, 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 Merchandizes wherever they please. And that he, by Virtue thereof, did trade as in the Declaration alleged, prout ei bene licuit. To this the Plaintiff hath demurred. Before I come to state the Points and Questions, upon which this Question truly depends; I desire to show 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 Infidel Country, pro hic & nunc, as Occasion 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 Occasions, as of War or Plague. But from hence to argue, that the King can grant you and your Successors 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 neither Plague nor War, the King should grant a sole Trade to any particular Person, whether Body Politic or Natural, 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 Infidels; and upon that ground, some difference imagined betwixt an Infidel and a Christian Country: Yet remember 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 trading 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 Politic, and restraining all others, is the same; whether it be to Christian or Infidel City or Country. And when you cite the of Statute 3 Jacc. 6. which enacts, That the King's Subjects shall freely trade to Spain and Portugal, notwithstanding the Charters of Incorporation granted to some Merchants, and the Prohibitions in those Charters: And from thence argue, that because there were Prohibitions or Restraints by Charters, as to those Countries 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 Question in this Case, Whether the King can restrain his Subjects from going beyond the Seas? Nor, Whether the King can lawfully restrain his Subjects to trade to a particular Country or Place, whether Christian or Infidel? Then the Questions plainly and shortly 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 show from Authorities. Commercium jure Gentium commune esse debet & non in Monopolium & privatum paululorum questum convertendum. 3 Inst. 381. Iniquum est, aliis permittere, aliis inhibehere Mercaturam. The Tailors of Ipswich's Case, That no Trade, Mechanic nor Merchant, 1 Rolls Rep. 4. can be hindered by the Patent of the King; a Patent that only 100 Persons shall use such a Trade, is void. F.N.B. 85. Note, that by the common Law, every Man may go out of the Realm for Merchandise, 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. Dyer, 165. That every one may, at his Will, go with his Goods; and citys F. N. B. for it. 2. And in the next place, That appropriating Merchandise and Trade to a particular Person or Persons, or a Body Politic, excluding others, is an engrossing such Trade: And that all engrossing Trade is against the common Law. 3 Inst. 196. That engrossing any sort of Merchandise is an Offence at common Law. Dom' Rex vers. Crisp. & al. In this Court lately, an Agreement betwixt divers Coprice Makers and Coprice 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 engrossing upon an Information in this Court. And if a Company of Merchants should buy up, in like manner, all the Merchandise of Spain or Portugal, or the Canaries, or other Town or Place for three Years to come: This I think would be an engrossing, and the Contract against Law. For the Consequence of it must be, that they would sell at their own Price, and thereby exact upon the King's Subjects. And your Patent, for the sole Trade to the East-Indies, invests you in all the Merchandizes of those Countries, and engrosseth them all into your Hands. And if a Patent grant to any the engrossing of Merchandizes; this Patent is against Law, and void. Engrossing is in Truth but a Species, or another Name for monopolising; for all the Difference between them is, that engrossing is commonly by Agreements and Contracts made betwixt Subjects one with another, without the King's Grant; but Monopolies are Ingrossing by Colour of the King's Grants. 3 Inst. 181. 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. Case of Monop. 11 Rep. 84. Moor. 673. and in Noy. This was engrossing 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. declares all Monopolies to be against the common Law. So that this being so; If this Grant be a Grant to you, to engross or monopolise, then by the common Law this Grant is void. 3. That that this Grant of sole Trade is against Magna Charta, 9 H. 3. Mag. Ch. c. 30. and divers other the ancient Statutes. All Merchants (if they were not openly prohibited before) shall have their safe and sure Conduct to departed 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, 2 Inst. 57 That the Words in this Act [nisi publice prohibeantur] are intended a Prohibition by the public Council of the Kingdom by Act of Parliament. This Act then being general, all Merchants to have safe Conduct, to go out, and come into England, if not prohibited by Act of Parliament, is probably a Declaration of the common Law. Stat. 2 E. 3 c. That all Merchant's 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 Merchant's 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 Interruption: Except the King's Enemies. And that this Act shall be observed and performed notwithstanding any Charters to the contrary. And that Charters 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 Magnae Charta, and enacts, That all Merchants, Aliens and Denizens may, without Let, safely come with their Merchandizes, safely carry, and safely return. Stat. 25 E. 3. c. 2. Confirms the former 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 confirm the two former Statutes, and enact, That all Letters Patents, and Commands to the contrary, shall be void. By these four Statutes, the Freedom of Trade and Traffic is amply established, and all Letters Patents, Grants, Proclamations, and commands to the contrary made void, if they had not been so at common Law. 2 Inst. 63. And my Lord Cook, upon Consideration of Magna Charta, and these Statutes, after Examination of several Grants of Tolls and Duties to be paid upon Merchandise, saith, That upon this Charter this Conclusion is necessarily gathered, that all Monopolies concerning Trade and Traffic, are against the Liberty and Freedom declared and granted by this Great Charter, and divers other Acts of Parliament, which are good Commentaries upon this Charter. And then citys the other Statute that I have before cited. Object. But say they, though we have the sole Trade, yet we are no Monopoly. Resp. To prove it to be a Monopoly, 3 Inst. 181. 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 Politic or Corporate, of or for the sole buying or selling, or using of any thing, whereby any Person or Persons are to be restrained of any Freedom or Liberty that they had before, or are hindered 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 merchandizing? And for the latter Part of it, whereby any Person is restrained or hindered 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, shows 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 Monopolies which the Law speaks so hard of. The Evils and Mischiefs are: First, That the Price of the Commodity 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 Advantage. 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 Margin of the Book before cited, 3 Inst. 181. No Man will doubt hereof, that considers the present State or Condition 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 fixed and stable, but varying and altering, sometimes better, sometimes worse. Sometimes one Trade beneficial, another not; according as Wares, Sicknesses, Scarcity of this or that sort of Commodity or Merchandise in this or that Country; Modes, Fashions, Customs and Habits of Men do occasion. And the Merchants, by their Education and Observation, manage and govern this Trade, for the Maintenance of themselves and their Families, and the general Good of Men. And direct and employ their Estates, and traffic 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 Company, and of another to another, sets up the particular Men that head the Companies, but destroys all other Merchants 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 excluded. All shipping must be subjected to the Rates and Prizes these Appropriators of Trade will give them; or else lie still and be destroyed. And so must all Masters of Ships, Mariners; all Artificers, Labourers, Factors, and Servants, whose Employments 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 Deal with your Factors, Captains, 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, Ingrossing, and sole Trade unlawful, be to be avoided; The Evils and Mischiefs attending your Patent and sole Trade, are perhaps 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. F. N. Br. 222. Quod Patria per talem donationem magis solito non oneretur seu gravetur. Grant le Roy all charge ou prejudice del Subject est void. 13 H. 4. 14. 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 shown. Object. But perhaps it may be objected, that this Patent is granted for good Government and Order, and Preservation 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 Turkey, Barbary, Guiny, and others. Resp. 1. Remember what our Books say. 2 Inst. 540. That new Corporations, trading to foreign Countries, under the fair Pretence of Order and Government, in Conclusion, tend to the Hindrance of Trade and Traffic, and in the End, prove Monopolies. 11 Rep. 28. b. In the End of the Case of Monopolies. Privilegia quae revera sunt in praejudicium Reipublicae, magis tamen speciosa habent Frontispicia & boni publici praetextum, quam bonae & legales concessiones. But praetextu liciti non debet admitti illicitum. The Words of that Book. And there also it appears, and is taken notice of, that Darcie's Patent had a glorious Preamble, viz. That the Subjects might exercise their Husbandry and lawful Employments, 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 glorious Preamble and Pretext this odious Monopoly had. That Patent which (made 3 Years after this, Horn and Ivy, Mich. 20. B. 2. c. 403. 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 Canaries, 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 Subjects 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. Persons more by Name, and all others of the King's Subjects, Merchants or Factors, trading, or that had within seven 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 Politic. 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, under Pain of Forfeiture and Imprisonment: With non obstante to the Statute of Monopolies. Judgement was given against this Patent. Here is in this Case, the same Pretence and Preamble, as in yours. The Abuse of the Trade, and the Regulation 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 engross all into the Hands of 10 or 12 Men, is most excellent 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 myself 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 Statutes 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 provide against those that would be. 43 Eliz. c. 1. Sect. 9 That Proviso shows that there were Monopolies granted; but yet so far from receiving any Allowance, that that Statute made in the End of her Reign, for confirming her Patents, by special Proviso, excepts 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 called Monopolies. The Statute of Monopolies, and this Statute, sufficiently show that there were such Grants, and that they were not allowed. This therefore is no Argument. But on the contrary, it hath not, nor cannot be shown (as I believe) that ever any had any Judicial Allowance in any Times passed for any sole Trade, or sole buying or selling, which is a great Argument to the contrary. And further, The Practice of these Companies hath been generally to the contrary; and till within these late Years, no sole Trade practised amongst them. This and the Charters to the Companies 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 Management of these Charters vastly differ. For the great Companies, Turkey, Muscovy, Russia, and Hamborough Companies, they trade not by any joint Stock, but the Members of each Company, every Man uses his own Trade, buys and sells his own Commodities, hath his own Servants, Factors, and Employers. They take care, by sending out Consuls and Agents, to preserve the Trade; and by small Imposts, maintain such Consuls and Agents. They take care that the Market be not overstocked or glutted with Commodities they send out; and therefore only order what Ships shall go, but leave to every one of the Company to send his Merchandise at his own Will and Pleasure. They trade not upon any Joint Stock, or the Stock of the Body-Politick. 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 Disposal 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 Merchandise, or employs any Factors or Servants. The Body Politic, the invisible Corporation trade, perhaps for 1000000 l. per annum. They get into their Hands, and sell perhaps 7. or 800000 l. worth of Merchandise 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 engrossing or no monopolising? 'Tis their wonderful Virtue, their Hatred and Contempt of Riches that makes them not to raise and increase 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 Company, than they have 500 l. Shares, and those Shares being engrossed 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 different one from the other, will distinguish betwixt one Company and Society, and another, who are Engrossers and Monopolizers, and who not. The Turkey Company, and the rest like it, may truly be said to be Managers, Regulaters, and Improvers of Trade. They have no joint Stock that they trade upon; they engross not; they admit every Man that will, to be free of their Companies, to trade with his own Money, his own Credit, and buy and sell his own, and to employ whom he pleaseth, and none amongst them, under Pretence of Government, Regulation and Preservation of Trade, makes unreasonable Advantages. But the invisible East-India Merchant, the Body Politic 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 Turkey, etc. have not any sole buying or selling; nor exercising any sole Trade or engrossing. 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 excluded. 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 managing Trade (which was the true intent of this Patent) such as I have mentioned, and is virtuously and commendably practised in the great Companies of Turkey, Muscovy, Hamborough and others, where the Members of the Company trade upon their own particular Stocks and Estates, and no Merchant hindered or denied to be a Member, that desires it, paying his ordinary Fees of Admission. But against the Invisible Merchant, this politic Capacity trading in joint 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 Merchandise. What would this politic 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 intelligentia 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 Engrossers and Monopolizers. 3. But to proceed and consider the Statutes made against Monopolies. Stat. 21 Jac. c. 3. By which 'tis enacted, That all Monopolies, Commissions, Charters, and Letters Patents, granted, or to be granted to any Person or Persons, Bodies politic or corporate, of or for the sole buying or selling, or using any thing within 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 politic and corporate, which now are, or hereafter shall be, shall stand and be uncapable 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 triple Damages to the Party grieved by the using any such Monopoly. Then the Prouisoes for new Inventions, and several other things Then the Proviso concer●●●ng Corporations, 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, Companies, or Fellowships of any Art, Trade, Occupation, or Mystery. Or to any Companies or Societies of Merchants erected for the Maintenance, Enlargement, or Ordering of any Trade or Merchandise. But that the same Charters, Corporations, Companies, Fellowships, and Societies; and their Liberties, Privileges, 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 notwithstanding. The next Proviso extends to Patents, granted or to be granted for Printing, making Salt Peter, Offices, etc. 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 Exclusion of all others, is a Monopoly within that Description, as I have before shown. That your Charter is directly contrary 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 yourselves, 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 Body politic, 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 instituting, erecting, furthering, or countenancing any such sole buying, selling, or trading, shall be void; How can yours be good? When the Statute saith, That all Bodies politic and corporate shall hereafter stand and be incapable of having, using, exercising, or putting in ure any such Charter, Inhibition, or Restraint; How then can the Plaintiff, in this Case do it? 3 Inst. 182. In the Comment upon this Statute, 'tis there said, that this Act is forcibly and vehemently penned for the Suppression of all Monopolies. And the Words [Sole using] is there said to be so general, as no Monopoly can be raised, but will be within the Reach of this Statute. The Word [any thing▪] shows also the general Scope and Intent, that nothing should be excluded that was a Monopoly. Object. But the Proviso excepts Charters to Companies or Societies of Merchants, erected for the Maintenance, Enlargement, or Ordering of any Trade or Merchandise. 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 Maintenance, Enlargement, or Ordering of any Trade or Merchandise. This extends to those that were granted and erected. Here is no Words of salving for any that should be hereafter 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 show it, That the Charters, Corporations, Companies, Fellowships, and Societies, 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 Companies, 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, etc. expressly provides for Patents granted or to be granted. This (if so intended) would not doubt in like manner have been penned. 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 Maintenance, Enlargement or ordering of Trade or Merchandise, 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 joint Stock, or a Stock of the Corporation, excluding all others. The Turkey Company, Russia and Hamborough, and other Companies, that trade not as Bodies politic, or upon joint Stocks, but every Merchant 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 and consult for Maintenance and Preservation of it, and not for the engrossing and cozening their Members of it. These are the Corporations that are within this Exception and Proviso. But we must be as silly as the Infidels you deal with in these Matters, not to distinguish betwixt these Corporations and their Management, and yours. They exclude none from Trade; they trade not in a public Capacity, in a sole Stock, but every Member is a Trader upon his own peculiar Stock. But you take upon you in your politic Capacity, as you have expressed in your Declaration. Totum integrum & solum Commercium & negotiationem habere uti & gaudere. And to exclude, not only all Strangers, but all your own Members to have any distinct or separate Trade upon their own account (except a little to excuse you to pay off Charges) and thereby engross all that vast Quantity of Merchandise. 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 Money, that buys and provides these Merchandizes? The Body Politic, the Corporation, the invisible Body. Who shall be sued for these Debts? The Body Politic. Sue them as you can, they will either 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 Politic, 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 could scarce find them. This surely can't be for the Maintenance or Enlargement of Trade, to deal with I know not whom, where no Security 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 Annum 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 Politic, which is but one Person or Man in Partnership, is quite contrary to the Enlargement in the Proviso mentioned. 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 yourselves to trade, seems to be a Contradiction. And for the following Words in the Proviso, [Or ordering of any Trade or Merchandise,] 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 Merchandise is excluding all others, and taking the whole to yourselves. A most excellent ordering indeed. But the true Sense of these Words in this Proviso, is to save the Corporations 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 ordering of Trade. By taking care that the Commodities were honestly and rightly made, without Fraud or Deceit in their Measures or Quantities. That the Servants and younger sort were honest, and industriously educated 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 Employments. This is that which the Proviso excepts and provides for. Not for a sole Trade in a Company, in a joint Stock, excluding all others as this is. The Company there made a By-Law, Tailors of Ipswich Case, 11 Rep. 54. to exclude Tailors 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 insufficient 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 lawful 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 Authorities that Companies have to regulate Trade, for the Maintenance and Enlargement 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 Politic, the buying in their public Capacity, a sole Trade. The Proviso than will be repugnant and contradictory to the enacting Clauses. For taking the Proviso as they would have it; To save to Bodies Politic the having the sole buying and selling, and using any Merchandise or Trade as a Corporation, and then compare the Proviso with the enacting Clause, and it will be just thus, Enacted, That Letters Patents to any Body Politic, for sole buying, selling, or using any thing, shall be void. And that no Body Politic shall be capable of having, using, or exercising any such Patent, Inhibition, or Restraint. Provided that Bodies Politic may have the sole buying, selling, and using any Trade: Is not this in plain English, repugnant and contradictory? Examine it as much as you can, and it will be no other than a downright 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 Proviso. That Men might use a Trade that they had not served an Apprentice to by the Space of seven Years. This had been a void repugnant Proviso. This is as plainly repugnant, That no Body Politic shall be capable of having a sole Trade, Provided that a Body may have a sole Trade. And repugnant Provisos are in Law void. 1 Rep. 46. Pl. Com. 563. 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 Premises. Therefore when the Act saith, That all Patents granted to Bodies Politic for sole buying and selling or using any thing, etc. Shall the Proviso that saith, That it shall not extend or be prejudicial to Companies of Merchants erected for the Maintenance, Enlargement, or ordering 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 contradictory. But to give the Companies the Management, 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 Management, never, as I believe, hath had any judicial Allowance. Object. Another thing that the Counsel 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 than shall remain in the same Force they were before the Act? Those that are excepted. What are excepted? Those that are for Order and Management; as I have before shown. Not those that are for sole Trade granted to a Body Politic. 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 contratrary 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. 2. Brownlow 296. Wherein Mr. Brownlow being Prothonotary, doth relate what my Lord Coke said, That no Subject of the King might trade with any Realm of Infidels, without the King's Licence. And that the Reason was because he might relinquish the Catholic 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 Recital 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 Hostility, there can be no Peace; an Infidel 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 intent, and as the other side urge them, and the Consequence will be, that the Plaintiff can't maintain this Action, but that the Charter granted to them, is void. The Reason that is given in Michelburn's Case is grounded upon this: That the King hath the Care and Preservation 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 Catholic 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, than your Patent must be naught, for than it is only grantable to Persons in whom such Confidence may be. 1. Your Corporation or Body Politic is indefinite as to Persons; the Members thereof are daily changeable; some go out, sell their Stocks, or die; 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 Company. How then can there be any Confidence in a Body Politic? The Law saith, that a Body Politic hath neither Soul nor Conscience: What Confidence then concerning their Religion can there be in a Body Politic? 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 licenced 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 Infidels, change or prejudice; This can't be granted to a Body Politic and their Successors, which may have Continuance for ever; or to their Sons, Factors, Apprentices, and Servants, 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 Prerogative 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, Factors and Servants, which are Persons that you yourselves nominate and appoint at your Discretions; and undoubtedly very religious: But by your Patent it is expressly 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, without the Consent of the Company, licence any other to trade. Can this be a good Grant? Can the King grant from himself his Kingly Care and Trust for Preservation of Religion, 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 itself, and then you have no more Right than we, and consequently 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 printed in the late Times, not licenced by any Judge or Person whatsoever. The Roll is, Mich. 7 Jac. B. C. Rot. 3107. Michelburn against B●thurst, setting forth, that the King had granted the Plaintiff his Commission to go with his Ship Tiger, to the East-Indies, 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 Prohibition: 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 Saying, 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 perpetual 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 Judgement 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 Protection, 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 lie or not; it is said, That if the Lord beat his Villain, an Husband his Wife, or a Man outlawed, 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 Say, where the thing was not in Question: And what Authority is there in such Say? It is true, that Christian Religion and Paganism are so contrary one to the other, as impossible to be reconciled, no more than Contradictions can be reconciled. But because they can't be reconciled that therefore there should be perpetual 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 Say in these Books cited, are of little Authority: For I can't find any Book or Case, much less Judgement or Authority for such Opinions in so great a Point as this is. But on the other side, if a Man considers the general Course and Practice, Trade and Commerce, and legal Proceed; 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, Persians, the Inhabitants of Barbary, and other Countries. Spain and Portugal were also possessed 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 Ambassadors from them, and sending Ambassadors 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, than we may justify the kill of them, as those that we are in Hostility with, wheresoever we meet with them. 17 E. 4. 13. b. 2 H. 7. 15. Adjudged 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. Solicitor, in his Argument, was pleased to cite many ancient Rolls out of H. 3. and E. 1. and about those Times, concerning those Princes handling the Jews. In Mr. Pryn's Book that he calls The second Part of a short Demurrer to the Jews long discontinued Remitter into England; printed in 1656. In which Book, I believe, an hundred Records and Histories are cited to show 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 People: 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, 2 Inst. 89. principally intended against the usurious Jews. Stat. de Judaismo 18 E. 1. Recites, that the King's People were disinherited by the usurious Jews: And enacts, That no Jew, for the future, shall take Usury. 2 Inst. 507. My Lord Coke saith, that 15060 Jews thereupon departed the Kingdom. 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 Knowledge of the Laws, and Transactions of those Times: It is impossible to know what the Laws of those Times were, or rightly to distinguish betwixt legal and violent Acts: And to bring Inferences from thence, to conclude in Judgement now, is Notum per Ignotius: Or like Dependencies, which, unless latter Times have concurred or agreed with, are only fit to make Disorder and Confusion. 2. But that which is deducible from thence is not, as I conceive, what hath been endeavoured. That is, that they had no Property, because the Princes of those Times took from them their Estates when they pleased, or taxed them how, and in what manner they pleased. But perhaps the Reason was because those People lying under the Curse, and being a vagrant People, without Head, Prince, or Governor, or Country; it was no Difficulty to tax, or take from them at Pleasure, being 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 Enemy can make neither Bargain nor Contract, 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 Estates 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 Remedy 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 Judgement will be. 12 Car. 2. cap. 18. The Act of Navigation, made the 12 Year of the King, concerning Trade, shows, that Infidels have the same Liberty of Trade as others. That Act being made for Increase of Shipping and Navigation, and prohibiting Goods to be imported by any foreign Ships, except the Ships of the same Country where the Goods do grow or arise, distinguisheth not betwixt Infidel and Christian Countries: But expressly saith, That Currants, nor Commodities of the Growth of the Turkish or Ottoman Empire, shall be imported but by English Ships, except Ships of the Built of that Country or Place where the Growth is, and whereof the Master of the Mariners is of that Country or Place. This Clause shows plainly, that the Infidels of the Turkish and Ottoman Empire have Liberty of Trade here. And the Acts of Tonnage and Poundage tax all their Merchandizes without saying brought in. In Southern & How's Case, 2 Cr. 469. where a Man employed 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, imprisoned the Plaintiff that sold them, to him, till he repaid his Money 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 perpetual Hostility, can maintain no Action, nor have any thing amongst us, hath no Authority for its Foundation, but only some extrajudicial Say, without Debate or Consideration: And is against all the continual Practices of Princes and People at all Times. Perhaps 'tis no small Part of Religion, that Men should speak and deal plainly and uprightly one with another. We do know that Religion hath been too often made a Cloak and Veil 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 Infidels. 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 1474. which was 14 E. 4. Can it be thought that in all those Times betwixt Magna 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 after the Moors were driven out, and in that Statute 'tis Recited, That the Merchant's Adventurers, dwelling in divers Parts of England, out of London, did show, That whereas they have had free Passage, Course and Recourse with their Goods, Wares, and Merchandizes in divers Coasts and Parts beyond the Seas, as well into Spain, Portugal, Venice, Danzick, East-land, Friesland, 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 London, 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 licence for ever. Here is a Licence in Perpetuity, not only to those that then were, but to their Sons and Successors, and those whom they shall licence 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 monopolised, and perhaps all Christian Countries. The Statute of Monopolies hath no Allowance or Exception for monopolising to Infidel Countries. That Statute is against all sole buying, 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 believe to the Indies also. And the Statute of Monopolies being so general (the Proviso not reasonably 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 Monopolies are, and always have been accounted: I hope it will not be avoided upon an imaginary Difference in Law betwixt Infidel and Christian Countries, to monopolise thereby the Trade, perhaps, 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. Exch. 4. C. 1. Lane 24. 2 Inst. 63. In the great Debates that were about 3 and 4 Car. 1. about the King's Power of imposing Rates, Subsidies, or Impositions upon Merchandise, 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 Merchandise. The Arguments and Reasons in those Debates did not distinguish betwixt Infidel and Christian Countries. But betwixt Native and Foreign Commodities or Merchandise. 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 Kingdom: He can restrain any sort of foreign Commodities to be imported: If he can restrain, than 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 Rend lawful. And in the Argument of those Matters, 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 Infidel Countries. So there have been to go beyond Seas. But it is no Consequence, that because 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 Merchandise in some Cases, and Embargue 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 Exportation. 3. In Cases of Plague from particular Place to import. But then these Prohibitions are general, and their particular Reasons and Grounds are apparent. But if under any Pretence, any sole Trade to some one Person, Body politic, or Natural, be granted, excluding all others, That Grant is, I conceive, 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 observe, no Opinion hath been, till within 4 or 5 Years, that such Grants were good to exclude others: Nor any Action 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 Licence, Then he may be punishable at the King's Suit, by Fine and Imprisonment. 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 Declaration? You say in your Declaration, That the Defendant Sands, not being a Member of the Company, nor Son, Servant, Factor, Apprentice, or Assignee of the Company, traded and merchandized 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 imported and sold them in England, against the Will of the Company, to their Prejudice and Impoverishment, against the Form of the Letters Patents, to the Damage of the Company, 1000 l. 1. You have not alleged that he had no Licence from the King. 2. You have not shown any Loss or Damage that you have. Did he buy so much Merchandise in the Indies, as that he left not there sufficient for you to furnish your Ships withal, so that they came home empty? No such thing is alleged. Or did he here export, to sell so much Merchandise, as not sufficient left for you to buy here? No such thing alleged in your Declaration. Or did he bring home here so much as that there were not Buyers sufficient for his Goods and yours also? No such thing is alleged. 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 hindered; 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 hindered of imposing and exacting 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 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, Co. 9 Rep. 113. that for every feeding of the Beasts of a Stranger in a Common, the Commoner shall not have an Assize or Action upon the Case, but the feeding aught 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 alleged 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 alleged none in your Declaration, how can your Declaration be good? It than contains no Cause of Action. 11 Co. Rep. 88 b. Rolls Abr. 1 part. 106. The last Point in that Case is there resolved, that admitting the patent good, yet no Action would lie. In that Case the Queen, by her Letters Patents, had granted to Mr. Darcey, that he, his Servants, Factors, and Deputies, the whole Trade, Traffic and Merchandise 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 Monopoly, and the Patent void. 2. That if the Patent had been good, yet no Action would have lain 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 Forfeiture of Ship and Goods; One half to the King, another half to you that are the Company. Now supposing all that you can desire; That this Patent should have the Force and Virtue of an Act of Parliament, 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 triple 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 conceive, 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 Politic Capacity, excluding all others, is a Monopoly and engrossing against the common Law; the ancient Statutes; 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 punished. 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 maintain this Action. And upon the whole matter, Whether best for the Company to have Judgement for them or against them, may deserve their Thoughts. And this being so great in the Consequence, 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. Some Books printed for B. Aylmer, at the Three Pigeons in Cornhill. THE Works of the Most Reverend Dr. John Tillotson, late Lord Archbishop of Canterbury, containing Fifty four Sermons and Discourses on Several Occasions; together with the Rule of Faith. 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