AN APOLOGY FOR THE East-India Company: With an Account of some large Prerogatives of the Crown of England, anciently exercised and allowed of in our Law, in Relation to foreign Trade and foreign Parts. By W. A. Barrister at Law, Author of the first Answer to the late chief Justice Herbert's Defence of the Dispensing Power. Qui judicium fecerit parte inauditâ alterâ, aequum licet statuerit haud aequus est Judex. London, Printed for the Author, 1690. AN APOLOGY FOR THE East-India Company. 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 alleged 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 happened. 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 settling convenient Powers were needless, or not desired by them; but to show that those their Actions which have been most complained of, have not been without Precedent and Countenance from Legal Authorities. 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 Judgement 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 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 licenced 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 public 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 acquired by Occupancy, or premier Seizing; The Rule for Liberty of Commerce must be qualified so, as not to prejudice that Property, which has been acquired and improved at the Expenses of others. According to which, in our Law, no Man can use his own to the Damage of his Neighbour's Property first settled. 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 Light: Nor yet can he use his own to the Injury of the Public, and therefore cannot turn ● Inst. fo. 199. his Land into a Park, Chace, or Warren, without Licence from the King, who is entrusted for the Public, to see that all, or a convenient Quantity of the Land usually ploughed, 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 judge 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. Comers. 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 Garrisons 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 entitled to by Law. 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 Judge 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 Merchant's 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 Merchant's 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 moneys hither. 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 Merchandise, 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 licenced 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 anciently, 12 H. 7. The Merchant's 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 Merchant's 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 Tailors 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. 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 Domestic 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 licenced 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. shows, 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 fixed 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 Counsellors, desired it may be enquired of such 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 Licence, notwithstanding a general Restraint. before the 47 th', for in the 41st, reciting such his Establishment, he gave special Licence 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, etc. 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 licence some to trade elsewhere; much more may he prohibit Trading in or to some one Place, yet licence 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. Pat. 3 E. 1. m. 22. de neg●tils Mercat. Fland. Thus though Wool was a Staple Commodity, I find, a Pardon for the Exportation of prohibited Merchandise 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 show, 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 advice. 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 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) Merchant's 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, etc. 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 Merchandise 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. 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 itself very plainly, and so as to serve for an Explanation unto all other Statutes concerning Merchants. Let all Merchants, says it, unless they were publicly 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 Merchant's Strangers, which shows that no others were then known: If it takes in Denizens, than 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 Merchant's 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 moneys of Foreigners, fell to Foreign Trade themselves, and for aught appears to the contrary, did this by Virtue of Letters of Free Trade from the Crown; Nor was Trade wholly 2. E. 3. c. 9 enlarged, 2ᵒ. E. 3. when 'twas enacted, That Merchant's 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 publicly prohibited. But the Lord Coke must needs be under a Mistake, where he makes the Public 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 Public Prohibition within that Statute. And whatever Prohibition is lawful, must be Public 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 public: but to say that the King might in such cases, but not otherwise, is either a giving up the Question of public Prohibition, or else a begging it, in supposing that others, though as public, are not within the Prohibition. 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 henceforward 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 show how little Warrant there is, for what Men would gather from the Print, 'twill be requisite to set down the Words of the Record: 18. E. 3. N● 12. Pet. Com. 5. Item prie la dite Com que Come nre snr le Roy eit Grantz. as gents de Flanders qles Estaples desleyns scient en la vill du Brugges, au temps de quet grant tote manere dez. Merchandz. cest ascavoir, Lombard's, Genevys, Cataloyens, Espainols, et autres que la plus grand part des Leyns soloient achater, at per la ou ills voloient horse de terr de Flanders per terr et per mire a lour voluntee amesner, a grant Profit et Encreas du pris des leyns illoques venantzes, la ont les vills de Brugges, Gant et Ipre denovel ordeniz pur lour profit que nuls leyns venantzes a le Staple scient venduz as estrangers' gentzes ne carriez hors de la dit tere de Flanders, si come ills soloient estre en damage de Marchantz d' Angleterre, et de tote la Com, dont ills prient remedy. Resp. Quant au quint Article il est avis as Roialmque la Petition est reasonable, et outre assentuz est que chescun Merchant, aussi bien Estrangers come Privez. peusse achater Leyns' en Engleterre, aussi come ils soloient fair, et sur se soient faitz breifs as Viscounts the fair enter Proclamation. Also the said Commons pray that since our Lord the King has granted to the People of Flanders, that the Staples for Wools be in the Town of Bruges; at the time of which Grant all manner of Merchants, viz. Lombard's, Genoeses, Catalonians, Spaniards, and others who used to buy the greatest part of the Wools, carried them from thence whither they would, out of the Land of Flanders by Land and Sea at their Pleasures, to the great Profit and Increase of the Price of Wools coming thither. The Towns of Bruges, Gant, and Ipre have lately ordained for their Profit, that no Wools coming to the Staple be sold to Strangers, nor carried out of the said Land of Flanders, as they used to be. To the Damage of the Merchants of England, and of all the Commons whereof they pray Remedy. Answ. As to the 5th Article it is agreed by the Prelates, Lords and Commons of the Realm, that the Petition is reasonable. And moreover it is assented that every Merchant, as well Stranger as Privy, may buy Wools in England, as they used to do. And of this, let there be Writs made to the Sheriffs to make Proclamation thereof. 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 the Foreign Staple, to which all Wools that were exported were to be conveyed. 2dly. 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 aught 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, etc. which shall be carried out of this Realm shall be brought. Nor are they according to that, to be exported by Merchant's Denizens. Nor do the Statutes 25 E. 3. & 2 R. 2. which provide that Merchant's 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 falsely supposed to be altered 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 show, that 'tis only to buy and sell within the Realm without Disturbance. 3. The Remedy is only against Disturbances in Towns etc. 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 Merchandise. But 1. This being for Merchandise, 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 Enemy's Country; neither, if the King may by Law prohibit sending to any other, may it be sent thither. Wherefore the public Prohibition excepted in Magna Charta must needs run through this Act. 2. The Statute says only, notwithstanding any Law, Statute or Usage to the contrary, but provides not against future public 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 fourth's 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 Englishmen. 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 Comoditieses, upon Pain of Forfeiture of 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, etc. 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 increase 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 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 Privilege 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 Majesty's 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 Public 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, than whatever Penalty the Marine Laws inflict upon Persons or Goods, going contrary to Imperial or Regal Prohibitions, the same are allowed of in our 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 alleged 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 King's 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. It was then agreed by the Lords and Commons and the Deputies of Foreign Princes, that the Selden's Mare Clausum. King of England, by Reason of his Kingdom of England, has enjoyed the Supreme Dominion and Empire in the English Sea, and the Islands thereto belonging, and may constitute whatever is necessary for the preserving Peace, Justice, and Equity, as well among Foreign Nations as his own Subjects; and may judge accordingly, and do all things belonging to summum Imperium. 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 Universal throughout all the World. 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 Merchant'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, Pirates, 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 Judgement, 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 Judgement, 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. 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. And besides the Loss of these things, and of their Price, which was paid in Money or Goods, they are to undergo perpetual Banishment. 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 Public 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 Ciders. f. 441. I must not here pass by the Case of Horn and Jvy, which seems to lie in my way: There indeed 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 itself, might be true; yet it is not likely that the Parliament intended a nice Enquiry into the several Tenors, 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 Judgements 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 Judgements upon Trials had by particular Commissions for Martial Law. If the Powers of the Charter were duly pursued, than the only Question will be, whether the King may give a Power to judge 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 Governor 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 sudden, from the Grant of the Company, had grown insolent with their good Fortune, and impatient of any Government; and four times rebelled against the King's Auhtority administered by the Governors there, merely 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 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 refused, endeavoured 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 Soldiers 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 legitimate by way of Prophecy. The Rebels (for such they were against the King's Power administered there) being dispersed by the Company's Soldiers, 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 shows 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 Governor having by the Charter fo. 121. King's Charter, [In Case of Rebellion, Mutiny, or Sedition, as large and ample Power as any Captain General of the King's Army by Virtue of his Office;] hanged 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. 1st. 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, To the Constable it pertaineth to have Cognizance of Contracts touching Deeds of Arms and War out of England. 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. All fet set horse de jurisdiction de c●inz ou hors de realm si come a Paris ou aillours oustre mire 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 Constable's 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, etc. summary et de plano et sine strepitu et sigura judicii. and since, and shows 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 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 authorise 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 shows that 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 Marshal's Common-Law-Jurisdiction, appears from the Debates which induced the Petition. Vid. Rush. Hist. Col. Append. f. 77. I agree, says the Learned Banks, than 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 Soldiers▪ should be punished as Soldiers. To which I answer: 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 Soldiers. 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 pardoned but by express Words mentioning it. Murders, Robbery, Felony, Mutiny, or other Outrage or Misdemeanour, 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 looked upon as Soldiers, not only as they were in open Rebellion, and went thither as Soldiers; 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 happening 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 Discretion. Besides till he was reinforced from England, and Pardons were sent from thence, which several embraced 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 Public; 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 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 endanger 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, than 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 overbalance 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 entered upon the Methods of advancing its Interest in the Indies, may occasion the hazarding that public 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 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 than 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 Sovereignty: And were either 1. Such Plantations or Colonies as King C. 2. had with his Queen, formerly N. Anno 1667. Upon a Reference 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 gained by premier Occupancy, as not being prepossessed by the Subjects of any other Government. 3. Acquired by Conquest absolute, or upon terms. 4. By Purchase for Goods or Money, or by the way of Exchange for Lands or Territories. 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 gained by Occupancy or absolute Conquest, the Prince's Pleasure sufficiently declared and made known, will have the same force. Though the Sovereignty 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 than that Acquistion which W. 1. made by his Victory over Harold would have rendered England an Accession to Normandy, as our present Sovereign'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 Politic, or single Persons, such would have a fair Pretence to a Legal Interest or share in the Soil, though not in the Sovereignty. But when the King gains a Sovereignty, 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 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 confirmed by our Law; of which Wales affords a plain Instance: that anciently had been Feudatory to England, and afterwards conquered 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 approved and allowed of some of their old Laws, and altered 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 summoned 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 annexed 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 ministering 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, though Wales had been conquered at the Expense 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 Englishman went to inhabit in Wales before the Act of Union, particularly introducing the English 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 Judge Doderidge; The said Lordships and Lands so conquered, were ordained Baronies-Marchers, and had a kind of Palatine Jurisdiction erected in every one of them, and Power to administer Justice unto their Tenants in every of their Territories; having therein Courts with divers Privileges, Franchises and Immunities: So that the Writs of ordinary Justice out of the King's Courts were for the most part not currant among them. Nevertheless, if the whole Barony had come in Question, or that the Strife had been between two Barons-Marchers, touching their Territories or Confines thereof, for want of a Superior they had Recourse unto the King their supreme Lord. And in these and such like Cases where their own Jurisdiction failed, Justice was administered to them in the superior Courts of this Realm. 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 sicut regale quidvis, etc. 1. before the King in Council. Gilbert of Clare, Earl of Gloucester, who claimed 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 conceived that he ought not to answer any one for any matter from thence, without the Judgement of his Peers 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 Gloucester and Hereford: A Jury of Peers and others being summoned; the Peers not only refuse to be sworn, as being against their Privilege, but say, No like Royal Mandate ever came into those parts for Causes concerning the Marches, to be tried otherwise than according to the Usages and Customs of those parts. Thus it appears that not only the King's, but the Subject's 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 shown, 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 Privileges of Englishmen 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. APPENDIX. A Commission for Martial Law, granted to a Governor chosen by the East-India Company, 43 Eliz. ELIZABETH by the Grace of God, Queen of England, France and Ireland, Defender of the Faith, etc. To our Trusty and well beloved James Lancaster Esq; greeting. Whereas divers of our loving Subjects have been humble Petitioners unto us, for our Royal Assent to be granted unto them, that they at their own Adventures, Costs and Charges, as well for the Honour of this our Realm of England, as for the Increase and Advancement of Trade of Merchandise within the same, might Adventure and set forth certain Voyages to the East-Indies, with a convenient Number of Ships and Pinnaces by way of Traffic and Merchandizing. We graciously inclining to their humble Petition in that behalf, and favouring so good a desire and honourable Enterprise, have been pleased to give Licence to our said Subjects to proceed in the said Voyages; and for the better enabling them to establish a Trade into and from the said East-Indies, have by our Letters-Patents, under our great Seal of England, bearing Date at Westminster, the last Day of December last passed, incorporated our said Subjects by the Name of the Governor and Company of the Merchants of London, trading into the East-Indies, and in the same Letters, Patents, have given the sole Trade of the East-Indies for the Term of fifteen Years, with divers Privileges and Immunities mentioned in the said Letters Patents, as therein more at large it doth and may appear. And whereas by Virtue of our said Licence and Letters-Patents, so by Us granted to them, they have prepared and furnished for this first Voyage towards the East-Indies, four several Ships, with a convenient number of Merchants, Mariners, and other our said Subjects, to be used and employed in the said Voyage, and have chosen you the said James Lancaster to be the principal Governor or General of all the said Merchants, Mariners, and other our said Subjects, which are or shall be shipped in any of the said Ships: We graciously favouring the said Enterprise, and approving and allowing of their choice of you to the said Government, being desirous to furnish you with all sit and convenient Power and Authority to rule and govern all and every our Subjects employed in this Voyage, by a due Obedience to be by them yielded unto you in the observing and executing of all good Orders and Constitutions, as you shall think convenient to ordain and appoint, for the furtherance of the said Voyage, to the Honour of Us and our Realm, and for the Advancement of the said Trade. We do hereby straight charge and command all and every Person and Persons, employed, used, or shipped, or who shall be employed, used, or shipped, in this Voyage, in the said four Ships, or any of them, to give all due Obedience and Respect unto you during the said Voyage, and to bear themselves therein one towards another, in all good Order and Quietness, for avoiding any occasion that might breed Mutiny, Quarrels or Dissension amongst them, to the Hindrance of the good Success which is to be hoped for through God's Providence of the said intended Voyage, and in Default of such Duty and Obedience, to be performed towards you, and for the Correction and quenching of such Mutiny, Quarrels or Dissensions that shall or may grow or be moved by the Disorder, evil Dispositions, or Perverseness of any of the said Persons: We do hereby authorise you, to chastise, correct and punish all Offenders and Transgressor's in that behalf, according to the Quality of their offences, with such Punishments as are commonly used in all our Armies by Sea, when the Offences are not capital; and for Capital Offences, as wilful Murder, which is hateful in the sight of God, or notable Mutiny, which is an Offence that may tend to the Overthrow of the said Voyage, the same being truly and justly proved against any of the Person or Persons aforesaid; We do hereby give unto you full Power and Authority to use and put in Execution our Law, called Martial Law, in that Behalf: and these our Letters shall be your sufficient Warrant and Discharge for the doing and executing of all and singular the Premises. In Witness whereof we have caused these our Letters to be made Patent. Witness ourselves at Westminster, the 24 th' Day of January, in the 43 d. Year of our Reign. HUBERD. Vid. Commission 6. Jan. 9 Jac. 1. Another of the same Nature was granted by J. 1▪ in the ninth of his Reign. FINIS.