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(5.) Opinion of Mr. Fane, Counsel to the Board of Trade, on the Privileges of the Russia Company carrying on a Trade to Armenia. 1734.
To the Right Honourable the Lords Commissioners for Trade and
My Lords,—In obedience to your Lordships' commands, signified to me by Mr. Popple, inclosing extract from the charter of the Russia Company, and desiring my opinion whether the privileges therein granted to the said Company, particularly those of importing through Russia the produce and manufactures of Armenia Major or Minor, Media, Hyrcania, Persia, or the countries bordering on the Caspian Sea, do still subsist, notwithstanding the Acts of Navigation and the charter of the East India Company, confirmed by Acts of Parliament subsequent to the Russia charter: I have considered the several charters and the Act of Navigation, and I am humbly of opinion that the privileges granted to the Russia Company of importing through Russia the produce and manufactures of Armenia Major or Minor, Media, Hyrcania, Persia, or the countries bordering on the Caspian Sea, ceased by the Act of Navigation, by which all goods of foreign growth and manufacture are prohibited, under severe penalties and forfeitures, from being brought into England, Ireland, &c., from any place or places, country or countries, but only from those of their said growth or manufacture, or from those ports where the said goods can only, or are, or usually have been, first shipped for transportation, and from none other places or countries. This subsequent Act of Parliament, I think, therefore, very fully determines these privileges; but if there could be any doubt upon it, I apprehend the subsequent exclusive charter of the East India Company, confirmed by Act of Parliament, whereby the solo trade to those countries is granted to that Company, entirely takes away all pretences to those prior privileges.
June 17, 1734.
(6.) Joint Opinion of the Attorney and Solicitor General, Sir Dudley Ryder and Sir John Strange, on an Act of Georgia about Trade with the Indians. 1737.
To the Right Honourable the Lords Commissioners for Trade and
My Lords,—We have considered the quseriss sent to us by your Lordships, in Mr. Popple's letter of the 21st of June last, the first of which is: "Whether the Act of the Trustees of Georgia, or of any assembly, passed in the colonies abroad, and confirmed by the Crown, can grant to any of the said provinces an exclusive trade with the Indians dwelling within the respective provinces T
And, as to that, we are of opinion that, as an absolute exclusive trade with the Indians would be destructive of that general right of trading which all his Majesty's subjects are entitled to, and therefore repugnant to the laws of Great Britain, no Act of the Trustees of Georgia, or of any assembly, passed in the colonies abroad, and confirmed by the Crown, can grant to any of the said provinces an exclusive trade with the Indians dwelling within the respective provinces, though the method of trading within each respective province may be regulated by the laws thereof.
And as to the second qusere—which is, whether the Act above mentioned excludes all persons whatsoever, whether inhabitants of Georgia or not, from trading with the Indians settled within the bounds of the province of Georgia, as described by the charter, except such as shall take out licences according to the direction of the said Act?—we are of opinion that the Act there inreferred to does exclude all persons whatsoever, whether inhabitants of Georgia or not, from trading with the Indians settled within the bounds of the province of Georgia, as described by the charter, except such as shall take out licences according to the direction of the said Act; that Act and the reason of it extending to allpersons whatsoever, and such taking out of licences being no more than a proper regulation of the trade within the said province.
July 28,1737. J. Strange.
(7.) Joint Opinion of the Attorney and Solicitor General, Sir Dudley Ryder and Sir William Murray, on a Petition which had been referred to the Privy Council, praying that the Petitioners might be incorporated, and that the Crown would grant to them the Property of all the Lands they should discover, settle, and plant in North America, adjoining to Hudson's Bay, not already occupied and settled by the Hudson's Bay Company, with the like Privileges and Royalties as were granted to that Company, with the Right of exclusive Trade. 1748.
.... We have taken the same (petition) into consideration, and have been attended by counsel both on behalf of the petitioners and the Hudson's Bay Company, who opposed the petition, as it interferes with their charter. The petitioners insisted on two general things: that the Company's charter was either void in its original creation, or became forfeited by the Company's conduct under it; that the petitioners have, by their late attempts to discover the north-west passage and navigation in those parts, merited the favour petitioned for. As to the first, the petitioners endeavoured to show that the grant of the country and territories included in the Company's charter was void for the uncertainty of its extent, being bounded by no limits of mountains, rivers, seas, latitude or longitude; and that the grant of the exclusive trade within such limits as these were was a monopoly, and void on that account. With respect to both these, considering how long the Company have enjoyed and acted under this charter without interruption or encroachment, we cannot think it advisable for his Majesty to make any express or implied declaration against the validity of it until there has been some judgment of a court of justice to warrant it; and the rather because, if the charter is void in either respect, there is nothing to hinder the petitioners from exercising the same trade which the Company now carries on. And the petitioners' own grant, if obtained, will itself be liable in a great degree to the same objection. As to the supposed forfeiture of the Company's charter by nonuser or abuser, the charge upon that head is of several sorts—viz., that they have not discovered, nor sufficiently attempted to discover, the north-west passage into the South Seas or Western Ocean; that they have not extended their settlements through the limits of their charter; that they have designedly confined their trade to a very narrow compass, and have for that purpose abused the Indians, neglected their own forts, ill-treated their own servants, and encouraged the French.
But in consideration of all the evidence laid before us by many affidavits on both sides (herewith inclosed), we think these charges are either not sufficiently supported in point of fact, or in a great measure accounted for from the nature and circumstances of the case. As to the petitioners' merit, it consists in the late attempts ma le to discover the same passage, which, however as yet unsuccessful in the main point, may probably be of use hereafter in that discovery, if it should ever be made, or in opening some trade or other, if any should hereafter be found practicable, and have certainly cost the petitioners considerable sums of money. But, as the grant proposed is not necessary in order to prosecute any further attempt of the like kind, and the charter of the Hudson's Bay Company does not prohibit the petitioners from the use of any of the ports, rivers, or seas included in their charter, or deprive them of the protection of the present settlements there, we humbly submit to your Lordships' consideration whether it will be proper at present to grant a charter to the petitioners, which must necessarily break in upon that of the Hudson's Bay Company, and may occasion great confusion by the interfering interests of two companies setting up the same trade against each other in the same parts under the like exclusive charters.
All which is humbly submitted to your Lordships' consideration.
August 10,1748. W. Murbay.
NOTES TO CHAPTER XV.
The right of the Crown to grant to a subject an exclusive right of trading with foreigners was upheld in East India Company v. Sandys (10 State Tr. 371). In that case the defendant pleaded the statute 18 Edw. 3, sess. 2, c. 3; but the Judges held that this was limited to the trade in wool, which was the subject-matter of the Act. They agreed, however, that the clauses in the charter of the Company imposing penalties and forfeitures on persons invading their privileges were invalid. TJie Judges in the same case also decided that the Statute of Monopolies (21 Jac. 1, o. 3) did not extend to the case of trade with foreigners. But it seems certain that rach a grant would at the present day bo held to be invalid at common law, if not by statute; and Lord Campbell, in his Life of Lord Jeffreys (Lives of the Chancellors, vol. iii. p. 581), says that to maintain its validity " is contrary to our notions on the subject." Formerly, however, a different opinion certainly prevailed, and charters granting an exclusive right of trade have at various periods been granted by the Crown. Amongst these, the most notable were the charters granted to the Russia Company by Philip and Mary; to the East India Company, by Elizabeth, in 1600; and to the Hudson's Bay Company, by Charles II., in 1670. But in 1693 the House of Commons resolved, that "it is the right of all Englishmen to trade to the East Indies, or any part of the world, unless prohibited by Act of Parliament;" and since that period there does not appear to have been any exercise of the assumed power of the Crown to grant a monopoly of foreign trade. When 6uch a grant has been made it has been by the authority of an Act of Parliament. The statute 1 & 2 Geo. 4, c. 66, enacts that it shall be lawful for the Crown to make grants or give license to any body corporate, or company, or person, for the exclusive privilege of trading with Indians in certain parts of North America; and all such grants and licenses shall be good, "any law to the contrary notwithstanding." But no 6uch grant or license is to be made or given for a longer period than twenty-one years.
In the case of the East India Company the right of exclusive trading to the east of the Cape of Good Hope, which was granted to them by the charter of William III. (1698), under the authority of statute 9 & 10 Will. 3, c. 44, s. 62, was from time to time continued by various Acts of Parliament, and was finally taken from them, in 1833, by statute 3 & 4 Will. 4, c. 85.
In 1857 a case was submitted to the Law Officers of the Crown (Sir R. Bethell, A.G., and Sir H. S. Keating, S.G.), on the question of the validity of the Hudson's Bay Company's charter,* and they said, in their Opinion: "The questions of the validity and construction of the Hudson's Bay Company's charter cannot be considered apart from the enjoyment that has been had under it during nearly two centuries, and the recognition made of the rights of the Company in various acts, both of the Government and the Legislature. Nothing could be more unjust, or more opposed to the spirit of our law, than to try this charter, as a thing of yesterday, upon principles which might be deemed applicable to it if it had been granted within the last ten or twenty years. These observations, however, must be considered as limited in their application to the territorial rights of the Company under the charter, and the necessary incidents or consequences of that territorial ownership. They do not extend to the monopoly of trade (save as territorial ownership justifies the exclusion of intruders), or to the right of^an