case nightingale and other against bridge Michaelmas term will mary roll the  king may create a corporation of merchant and give they by charter a exclusive  right to trade and hold territory within certain limit therein describe but a  clause prohibit other to trade within the say limit under pain of imprisonment  and the forfeiture and loss both of their ship and good wheresoever find c and  give power to enter into search and seize ship and good be void for the king  can by letter patent create a forfeiture of or any way by his own act  confiscate a subject property SC Carth SC holt trover and conversion de good  et catallis sequent videlicet de One nave peremptory or urgent call the James  frigate load cent et trigint a large ten bombard England gun cum omnibus arms  shower KB er p mean apparent rack sail rope fortifying provisionibus sclopis  skiff et other suppeditamentis eiden ship spectan sive pertinent ac etian two  hundred et dvodecim ponder balance food peremptory or urgent call c not guilty  plead the jury find that Charles the second by letter patent date the that of  September in the twentyfourth year of his reign to the royal African company  of England be a body corporate do grant to they all the region country coast  and place c beginning at the port of Sallee in south Barbary inclusive and  extend from thence to cape de good esperanza inclusive with all the island  near adjoin to those coast and call by the name of south Barbary guinea c and  all port harbour c to hold to they and their successor from the make the say  letter patent for the term of one thousand year and grant licence to they and  no other to send ship c and to have all i of gold and silver there c and the  whole entire and only trade and liberty of trade there any law or statute to  the contrary notwithstanding and none other of his subject to frequent visit  or trade in those place c probibiting any to trade there unless by licence  first bad under pain of our indignation and imprisonment of their body during  our pleasure and the forfeiture and loss both of ship and good wheresoever  find c with power to enter into search and seize ship and good c one moiety of  the forfeiture shower KB to the king the other to the company it also erect a  court of judicature to be hold at such a place as the company appoint to  consist of one learned in the civil law and two merchant c the major part  quorum One the lawyer to have conusance and power to hear and determine all  case of forfeiture and seizure for trade thither the jury find further  September the company grant a commission under their seal to one John Lastall  recite the grant and power of their say charter to command he captain and  commander of the orange tree frigate then in their service and all subordinate  officer and seaman to seize all ship trade c and whatsoever they take in their  outward bind voyage they be to carry to land safe and their to deliver they to  the agent and council of factor there to be proceed against in the court of  admiralty there establish that John bridge the defendant be one of the officer  of the ship call the orange tree at the time of set out and at the time of  make the say commission that the that of February the company make another  commission to Henry nurse James hulet W S and r W or any two of they recite  the power of their charter do constitute and appoint they judge of the  admiralty there and to execute those power accord to such instruction as they  shall send that John Lastall before take of the plaintiff ship die that John  bridge after his death be commander of the orange tree frigate that the  plaintiff be owner of the ship and good in the declaration do trade in a  infidel country in and with these ship and good to certain place within the  limit of that company that John bridge do seize take and carry away the  plaintiff ship and good upon the high sea in his outward bind voyage and  afterward carry they to the fort of lane Corfe in Africa aforesaid against the  will of the plaintiff and the master and seaman that at the defendant instance  there be a process in the say admiralty court against the say ship that none  appear for her there be a condemnation c say utrum the defendant be guilty  ignorant c et si pro quer damage to four thousand three hundred pound and cost  to S d et si pro defend c this special verdict be obtain at the importunity of  their majesty council for the defendant I therefore be prepare to argue as  follow for the plaintiff shower KB the question be whether any thing here find  can justify the take and carry away the plaintiff ship and good I be to argue  that here be nothing either precedent or subsequent that can justify the  defendant take I shall not controvert the legality usefulness or necessity of  settle company for the manager of foreign trade nor the prerogative of the  crown in erect such society nor the give liberty exclusive of other a at  present it seem to I a unnecessary talk to deny or disprove the validity of  the prohibit clause but my Lord my endeavour shall be to make out this that  the defendant have no power to seize that clause in the charter be void and  illegal that their new erect court be illegal a Com dig Trade shower KB er p  be for this purpose in particular that if it be legal constitute yet the  condemnation subsequent will not justify the precedent tortuous conversion and  that last they have not pursue their charter it can be deny I that the subject  of England have a undoubted property in his good and possession now this  property can be transfer or divest but by the consent of the owner either  express or imply as by gift dereliction or forfeiture this last only concern  our present question it must be agree that the commonlaw have not ordinary  make this our trade as find in the special verdict to be a forfeiture or cause  of seizure I believe they will not contend this that antecedent to their  charter our trade be unlawful under pain of lose ship or good and then the  king can by any prerogative whatsoever create either a new cause or a new mode  of seizure and either of they will serve my turn to the alter of a property of  a subject good a parliamentary assistance be requisite and that be the fit way  for order that fundamental property which the subject have in his good because  each subject vote be include in whatsoever be there do a Act of parliament  have the consent of many man both pass present and to come as it be in hob the  statute that have be make for this purpose be a evidence of this or otherwise  they be needless idle and unnecessary those act that regulate those that take  away and those that enforce a new purveyance upon the king royal progress do  sufficient prove this the king prerogative as it be give so it be bind by the  law I shall first show it by some more general author and then more particular  and close shower KB demonstrate it to be so in the case now before your  lordship Bracton b say thus ipse autem king non debet be sub a human being  send sub a god et lege because law fecit kingdom to assign therefore king law  quod law to assign ei c and c king non to be able agreeableness to make cum in  an unjust manner et financial loss another quod autem another be dare non to  be able per agreeableness svan nay though it be for the public good he can do  it without the imply consent of the proprietor in parliament as I shall show  present though the authority of those ancient treatise have be sometime  controvert yet they have always be allow as evidence of the fundamental and  general constitution of the realm but to use more modern authority in the case  of Thomas v sorrel d it be lie down as a fundamental rule that in life liberty  and estate every man who have not forfeit they have such a right that the law  allow he to defend and mean for so do that if it be violate it give a action  to redress the wrong and punish the wrong doer the law be the high inheritance  which the king have e for by it the king and all his subject be rule and if  the law be not there will be neither king nor inheritance davis Rep the king  of England have always claim a monarchy royal not a monarchy seignoral under  the first say he the subject be freeman and have a propriety in their good and  freehold in their land but under the latter they be villain and slave and my  Lord this propriety be not introduce into our land as the result of prince  edict concession and charter but be the old fundamental law spring from the  original frame and constitution of the realm in Francis case f coke set down  this as a rule quod nostrum be without facto sive diminution our men to send  away seu in another to bear non to be able and the commonlaw give a true  property in contradistinction to the superintendent power and for this purpose  it distinguish between bondman who estate be at their lord will and pleasure  and freeman who property none can invade charge or take away but by their own  consent a several property in the subject be so sacred as nothing more the  king can dig for saltpetre in a mansion house or barn fill with corn without  the owner consent g he can alter the course shower KB of descent or by charter  make land to be devisable which be not so before or make it devisable when it  will otherwise descend to a single heir h and so e contra he can make it  descendable to the heir where it be dividable as in gavelkind for if otherwise  there have be no need of the Act of parliament concern Kentish land he can dig  for gravel in the inheritance of his subject maugre son soen say the book I  against his will a custom to pay toll for all cattle b bk ch foe c bk foe d  Vaugh Bac Abr e Henry pl f   g   h assize I Henry pl shower KB er p drive over  a man private freehold shall prevail against the prerogative and bind the king  Edward cite in Plowd Com Lord berkeleys case all which prove a property in the  subject but to come close No forfeiture can be of good by charter without a  Act of parliament and so be coke king in his comment upon nullus libre a human  being disseizitur de freedom nest which he interpret property in good as well  as other franchise and liberty which the subject have this charter and clause  can give no power therefore to seize a man good as forfeit which the whole  matter find show they do for that no such forfeiture can be create or make by  charter Even for defence of the realm the king can seize a man good without  his consent in parliament and this be Mr Hambdens case in the time of Charles  the first l much less can it be do for the private benefit of a particular  company and it be agree by those who argue in that case for the king that the  subject can not lose the property of his good but by Act of parliament now  this property be so preserve by the law the king can by any way alter this law  but in parliament or make that a forfeiture or cause of seizure which be not  so before for as fortescue say m a king of England can alter or change the law  of the land at his own pleasure and the same thing thus n he can take away any  of his subject good without satisfaction for they nor can the king by  parliament or charter impose any new penalty or make any new offence and for  that the Henry c be a full and express authority for by the statute which be  the wonder of the age the king may with the advice of counsel two bishop two  chief justice and other make ordinance for the punish offence and impose  penalty which shall have the force of a law but with this proviso that no man  property or good shall be impeach nor the commonlaw or statute law of this  realm shower KB prejudice and yet however it be think so dangerous a power  that the Act itself be repeal oh in the case of proclamation about building it  be there hold p that the king can by his prohibition or proclamation or  otherwise say that book create a offence which be not a offence before for  that be to change the law which be not in his power and there in that folio be  cite the case of all Act make by which foreigner be licence to merchandise  within London king Henry the four by proclamation prohibit the execution of it  and that it shall be in suspense but usque ad neighbor parliament and it be  resolve by the two chief justice chief baron and baron Altham that a  proclamation can alter or make a offence now charter and proclamation be both  of the same equal authority both under the great seal but perhaps they will  object that infidel be alien enemy and to trade with they be unlawful and  therefore a seizure lawful to which I give a double answer first by deny the  assertion and second by deny the consequence first it be not unlawful at the  commonlaw for that be coeval with the inhabitant of this island I shall not  attempt to prove its antiquity though I may prove it here even before livy  time and consequent prevalent here before Christianity and then it can be no  crime and no statute since have make it so nor can I find any pretence for  such a opinion in the book there be nothing but Michelburns case Brownl and  that be but a short and imperfect note of a case and all that it amount to be  this that the king may restrain his subject from commerce with they which  argue nothing to this purpose here in our case and it be plain that commerce  be Allowable with the jews which accord to the gospel be great enemy to  Christianity than the gentile be that it be not unlawful antecedent to their  charter appear from the statute for they open the sea to all merchant for all  manner of trade as Edward saint c that the sea be open to all manner of  merchant to pass with their merchandise where it shall please they roll beside  the charter prohibit trade there not because it be inhabit by infidel but do  indefinite forbid all but the company whether the country shall be Christian  king Inst l state trial see also p appendix to saint Tr m fortescue de praise  law England ch foe n fortescue ch foe oh by the statute Edward c p   shower KB  er p or pagan second it be no argument that they be infidel and trade with  they may be prohibit that therefore the good shall shower KB be forfeit no  more than the power of the king to restrain card play will confiscate the card  which in Darcys case Q be agree I will suppose their principle true that they  be perpetuii unfriendly and then accord to that notion a trade with they be  treason as a abet of the king enemy and yet even in that case there ought to  be no seizure of the offender good till conviction or at least indictment or  inquisition but further I will suppose their charter make it unlawful yet it  can impose the penalty of confiscation of good for by great Charta no man be  to be dispossess of his property but by of judgment Parium of oneself and my  Lord I take it for a truth that in all part of the world where the englishmen  be under the government of any English subject their rule must be the law of  this land and if they punish without jury they may be punish for it by action  of trespass when they return hither and this we have in practice here every  day in case of the insolency of governor in plantation as in the east Indies  and barbados and they can proceed there but in the method allow here trial by  a jury be the right of every English subject all the world over wheresoever  English man have the command by authority derive from the crown of England now  the law of England say that if good be forfeit for ail offence there must be a  conviction of the offence in the method of the commonlaw and those method can  be alter but by Act of parliament the king can no way change it even in the  case of felony he can alter the execution from hang to behead for that so he  will alter the nature of the sentence r nor can the king erect a court of  admiralty to do such work in the same there be commission in English under the  great seal direct to diverse person within the county of Bedford buck  Huntingdon c S to inquire of diverse article as depopulation of house  conversion of arable land into pasture c though these thing be offence yet the  commission be hold illegal because unusual and in English and not say how they  shall inquire in Hilary term James there be a question if the justice in Wales  may be by commission and hold they can not for the lie c which give power to  alter change and reform all matter c be so dangerous a power be hold not to go  to the successor the king can grant that any shower KB one shall be sue  otherwise than accord to the English commonlaw as the case of the chancellor  of Oxford Henry a grant that the vice chancellor shall not be sue for debt or  trespass concern his office void acquire ration he can appoint a man to be sue  accord to the civil law and so be the grant to the university that they shall  sue in the vice chancellor court for cause infra Oxford ill and in the  Elizabeth a Act be make for it u in the assize pl there be a commission under  the great seal to sundry person of credit to take the body and good of h  without indictment and due plead of law and damned as unlawful and much the  same be our case with that of Oxford agars case be express ten that such grant  be void in Henry he can erect a court of equity that he can at this day make a  manor z he can create a honour but by Act of parliament a he may grant  conusance of plead within a certain precinct but not otherwise than sencundam  law et experience royal power b now the offence if any be upon land it be  trade in ail infidel country so that suppose it a unlawful thing it ought not  to have be seize first nor condemned in that manner in sander case they be so  very shy of this clause that when oyer be crave of their patent and set forth  they cautious omit this clause for the forfeiture of ship and good as ashamed  of it and this be take notice of both at bar and bench the prerogative be then  strain even to the utmost and yet agree by they all that this clause be not  justifiable and in that very case it be agree by the bench that the  distinction between infidel and other as to this purpose be trivial the king  prerogative and superintendence over trade be the topic Q   r   S     u  Jenkins century cent ten roll Rep that     z see the case of march v smith  Leon a king v level Bulst b   shower KB er p insist on the other be press at  the bar and so be Jeffeys print argument in the case of the Russian company  erect by Philip and mary there be such a clause as this but they never venture  to use it till make effective by Act of parliament Elizabeth c objection their  take be only a seizure in row ad c I answer it be not find that they have  information of our trade and it be find general that they take and carry away  the ship and good and now to seize before suit and without suit be much at one  beside the power under which they justify be to seize as forfeit and at the  defendant request it be condemned as forfeit and the whole shower KB tenor of  the jury find be that way the defendant be no officer of the admiralty and  therefore his service can not be by authority from that court in a way of  process or in order to examination or the like and therefore his seizure be  certain tortuous for he have no power but under that clause in the charter  which be void in law then this subsequent go to their suppose court of  admiralty can justify that tort for first I think by the authority cite the  king can erect such a court only to condemn good upon a suppose offence accord  to the charter without a jury then their court be constitute not to proceed  accord to the charter but accord to the instruction which the company shall  from time to time send for that purpose as to the case of hughs v comelin d  that be trover bring against the vendee of a ship take by the French in time  of war and condemned as a Dutch prize and afterward buy by the defendant the  reason of that judgement be the credence we give to those court abroad but  here we bring not our action on a demand and denial after the sentence against  one that buy it upon credit of that sentence but for a actual conversion  before here be a seizure by English man under pretext of a void power and a  sham condemnation afterward to justify it in the case of beak v Tirrel e last  easter term in this court where in trespass the defendant plead a caption as a  prize and a condemnation by the east India petit admiral pursuant to it I  remember one of the reason allege by your lordship for overrule that plea be  that the subsequent go to the admiralty can not justify the first illegal  caption here be no war to warrant a seizure no proclamation or other  profession of hostility but a amity imply by their charter that prohibit we as  to trade there which suppose that otherwise it will have be lawful for we the  argument from the writ of ne exeat kingdom affect not this case though it may  in the question of trade if a action or information have be bring for it the  charter require the admiralty court to be hold before two merchant and non  constat by the sentence find that either of the judge be merchant shower KB  the other side think the pretence of forfeiture too gross to insist on have no  counsel to argue it so we have judgement nisi before the end of the term and  the last day of the term Mr sergeant Tremain take exception to our declaration  for its uncertainty first it be provisionibus which signify victual and that  may be victual out of the ship as well as in it and no quantity or certainty  mention he urge it be ill second it be two hundred weight balance which  signify pound weigh I e the weight themselves and therefore ill or otherwise  it be uncertain which be mean and therefore ill he except to some other word c  the answer I give that the word signify only necessary for the ship and must  so be intend here for it be eiden ship spectant sive pertinent so that it be  reduceable to a certainty and when so it be well enough as in case of a study  of book yet well though uncertain how many or what sort because there be a  addition of study which limit and ascertain it so be the case of Mayhu v  flower in side in trover de plancis granary England plank of the granary  otherwise it have be of plank general and so be the case of Elphique v Acton a  for a library of book so trover will lie of a trunk with diverse good in it  prior v tuft g so for a piece of linen a parcel of thread a pack of linen a  piece of brandy h if so certain that the thing may be know and the jury may be  d Michaelmas term car b r e ante f roll g Keil h see jemi v nourice Mod lev  vent shower KB er p suppose able to value it it be well enough beside in  trover there needs not that precise and exact certainty as there do in a  replevin there the thing itself be to be return here damage only and the book  be full with a abundance of case where in trover great latitude be allow than  in other action this be after verdict and not on demurrer as to the other  exception I urge that be after a verdict it must be intend that damage be give  only for what be sensible so that if sensible it be enough for then the jury  can know and value it if not no damage be give for it but for the other thing  that be sensible express as in case of diverse word speak at one time and that  resemble this I but in trover I cite diverse case where it be so adjudge after  verdict especial the verdict be general for the plaintiff otherwise say some  book if the jury find the defendant not guilty as to part and guilty as to the  rest for then say they it be plain the jury consider every part and give  damage for every such particular so find shower KB the court hold all for the  plaintiff and as to the first holt chief justice hold that provisionibus be  well enough though it shall be mean victual upon land for ship pertinent make  it certain enough and so we have judgement for the plaintiff