« PreviousContinue »
administration of government is to regard the advantage of the whole realm, should not be invested with sufficient power to repress and restrain such common mischiefs, it has not a power to do right to all its subjects. If the public mischiefs, from such a way of trading, be plain and evident, there is the same reason for restraining particular persons from carrying on a trade that draws such consequences after it (though it be a trade that of itself is not prohibited by any particular law), as there is that a private subject shall not make such a use of his own house or land (in which he has an absolute propriety and a legal title to it) as will turn to the common annoyance and public detriment of the rest of the kingdom.
4. The general trade of the nation, and the maintaining of the customs and duties granted to the Crown for the support of it, are things of so public a concern, that whatsoever has a direct and evident tendency to the discouragement and disadvantage of the one, or to the diminution of the other, is a crime against the public. As an instance of which, I shall mention it as a kind of precedent, that raising and spreading a story that wool would not be suffered to be exported upon such a year (probably by some stock-jobbers in those times), whereby the value of wool was beaten down, though it did not appear the defendants reaped any particular advantage by the deceit, was, upon the account of its being an injury to trade, punished by indictment; and a confederacy, without any further act done, to impoverish the farmers of the excise and lessen t\e duty itself, has been held an offence punishable by information. If, therefore, the consequence of this present undertaking should prove what is apprehended from it, there can be no doubt but that the Crown has so much interest and concern for the trade of the nation and its own revenue, as to be able to put a stop to the carrying on a thing so mischievous to the one and the other by the advice and assistance of his Majesty's own subjects.
5. As to the particular subjects so employed abroad, there is no | doubt but that the King, by his prerogative, may restrain them; I it is agreed on all hands that the Statute of Fugitives is but an affirmance of the common law; that the Crown may, at its discretion, require the personal presence and attendance of the subject, lest the kingdom should be disfurnished of people for its defence,
as it is said in some books; and not only so, but upon a suspicion or jealousy that be is going abroad: Ad quam plurima nobis et quam pluribus de populo nostra prejudicialia et datnnosa ibm prosequenda (as tbe writ framed upon that occasion expressed it). The Crown is, by law, entrusted to judge what things those are which shall be looked upon to be mischievous and prejudicial to the Crown and people, and what caution is to be taken against them; and by that writ it appears it is equally criminal to do anything of that kind by any other hand as to do it personally himself; and therefore, after the writ has commanded his not going abroad, it adds : Nee qui quicquam ibm prosequi attemptes, seu attemptari facias, quod in nostrum seu dictse corone e nostrse prsejudicium eedere valeat quovis modo: nec aliquem ibm mittas ex hoc causa.
6. Upon the very foot of trade itself, it is necessary that the Crown should have a power over the persons and dealings of their subjects in foreign parts. By the law of nations, a Government, if they have no other redress, take goods from any of the same nation by way of reprisal for injustice done by one of the nations; so that Englishmen suffered to reside abroad, by their misbehaviour may endanger more than their own persons and estates. But, as the stating to your Lordships the power which the Crown has to prohibit the subject from going abroad, when there is reason to suspect that designs prejudicial to the kingdom are carrying on, alone is not sufficient to answer your Lordships' purpose, I shall beg leave to remind your Lordships of a case parallel to this, which has already had a determination at the board: anno 1705, several English merchants were concerned in a design to set up the manufacturing of tobacco in Russia, to which purpose they had carried over the necessary workmen and instruments; but, upon application to the Board of Trade, the then Lords Commissioners did represent it to the Queen in Council as their opinion, that the persons who had been already sent to Moscow might be recalled by letters of Privy Seal directed to her Majesty's envoy for that purpose, and that the engines and materials of working should be broken and destroyed in the presence of the said envoy, and that the persons at home who were concerned in sending the said workmen over should be enjoined not to send over any more workmen or materials, &c.
Upon inquiry, my Lords, I am informed that the said works and materials were actually destroyed in Russia, and the workmen sent back again by the direction of the envoy, who took the advantage of the Czar's absence from the place where they were established. What was then done may certainly be repeated. It is not the business of a lawyer to consider how such a method of proceeding may be relished by a foreign Court, but only to give it as his opinion that it may be justified as against particular subjects who are guilty of so high a crime against their country.
December 5,1718. Rich. West.
(4.) Opinion of the Attorney General, Sir Philip Yorke, relating to English Subjects being engaged in the East India Company of Sweden. 1731.
To the Right Honourable _the Lords Commissioners for Trade and
My Lords,—I received your Lordships' commands, by letter from Mr. Popple, signifying to me that your Lordships having some papers under your consideration relating to an East India Company lately erected in Sweden, wherein several Englishmen are thought to be engaged, not only as having shares in the said Company, but as captains, supercargoes, and sailors, had desired I would let your Lordships know what laws are now in force to restrain his Majesty's subjects, either in or out of this realm, from being anyways engaged as aforementioned, and what penalties they are subject to, as also my opinion whether his Majesty has any power to recall his subjects (other than artificers and manufacturers) from foreign parts, and if they are liable to any penalty upon their refusing to return.
As to the first question—what laws are now in force to restrain his Majesty's subjects, either in or out of the realm, from being engaged either as sharers in the said Company, or as captains, supercargoes, or sailors under them ?—I humbly certify your Lordships, that the Act made in the fifth year of the reign of his late Majesty King George L, entitled, "An Act for the better securing the lawful trade of his Majesty's subjects to and from the East Indies, and for the more effectual preventing all his Majesty's subjects trading thither under foreign commissions," expired at the end of the session of Parliament.
But the Act of the ninth year of his said late Majesty's reign, entitled, "An Act to prevent his Majesty's subjects from subscribing, or being concerned in encouraging or promoting, any subscription for an East India Company in the Austrian Netherlands, and for the better securing the lawful trade of his Majesty's subjects to and from the East Indies," is still in force, whereby it was (inter alia) enacted, that if any subject of his Majesty, his heirs or successors, should subscribe, contribute to encourage, or promote the raising, establishing, or carrying on, any foreign company or companies afterwards to be raised, formed, or erected for trading or dealing to the East Indies, or other parts within the limits of trade granted to the English East India Company, or should become interested in, or entitled unto, any share in the stock or capital of such company or companies—every person so offending shall forfeit all his and her interest, share, and concern in the capital stock or actions of such company, together with treble the value thereof, to be recovered and distributed as that Act directs.
Penalties are also inflicted by the said Act upon any of his Majesty's subjects who should know of any share or interest which any other subject had in any such company without discovering the same, or who should accept of any trust in any share or interest in any such foreign company.
It is also enacted, that if any subject of his Majesty, his heirs or successors (other than such as are lawfully authorized thereunto), should go, sail, or repair to, or be found in or at the East. Indies, or any of the places aforesaid, every person so offending should be guilty of a high crime and misdemeanor, and should be liable to such corporal punishment or imprisonment, or to such fine as the Court where such prosecution should be commenced should think fit; and should and might be seized and brought to England, and upon their arrival here be committed until they should find security to answer for such offence as this Act requires.
By an Act made in the seventh year of the reign of his late Majesty King George I., c. 21, all contracts entered into by any of his Majesty's subjects for loans, by way of bottomry, on any ships of foreigners bound for the East Indies, and for loading or supplying such ships with a cargo or provisions, and all copartnerships or agreements relating to any such voyage or the profits thereof, and all agreements for wages for serving on board any such ships, are declared void.
Besides the particular penalties and provisions of these Acts, every subject of his Majesty offending by trafficking or adventuring to the East Indies, or visiting or haunting the parts aforesaid, under colour of being concerned in, or employed by, any such new company, will incur the penalties inflicted by the Act 9 & 10 Will. 3, c. 44—viz., the forfeiture of all ships and vessels employed in such trade, with the guns, tackle, apparel, and furniture thereunto belonging, and all the goods and merchandizes laden thereupon, and all the proceeds and effects of the same, and also double the value thereof, to be seized, sued for, and distributed, as by that and several subsequent laws is directed.
As to the second question, whether his Majesty hath any power to recall his subjects (other than artificers and manufacturers) from foreign parts, and whether they are liable to any penalty upon their refusing to return, I am of opinion that his Majesty may, by letters under his Privy Seal, require any of his subjects going into foreign parts without his royal licence (except merchants) to return home within a limited time upon their allegiance; and also merchants, in case they are guilty of any practices contrary to the duty of their allegiance or the laws of the land; and if any person, after such letters of Privy Seal served upon him, shall not return into Great Britain within the time thereby prescribed, he will forfeit the rents and profits of all his lands and tenements during his life, and all his personal estate.
As to seamen, his Majesty may, by a general proclamation under his Great Seal, command all seamen, being his natural-born subjects, who shall be in the service of any foreign prince or State, or employed on board the ships of foreigners, to return home upon the duty of their allegiance, and under the peril of being guilty of a contempt of his royal authority; and also prohibit all seamen to go into any foreign service, or to serve on board the ships of foreigners—and such proclamations have been frequently published in former reigns.
November 27, 1731. P. Yobke.