ner. "By the Feodal law, all navigable rivers and havens were computed among the regalia, and were subject to the Sovereign of the state. And in England it hath always been held, that the King is Lord of the whole shore, and particularly is guardian of the ports and havens, which are the inlets and gates of the Realm: and, therefore, so early as the reign of King John, we find ships seized by the King's officers for putting in at a place that was not a legal port. These legal ports were undoubtedly at first assigned by the Crown; since to each of them a Court of Portmote is incident, the jurisdiction of which must flow from the Royal authority. The erection of beacons, lighthouses, and sea marks, is also a branch of the Royal prerogative. The King may enjoin any man from going abroad, or command any man to return. The powers of establishing publick marts, regulating of weights and measures, and the giving authority to, or making current, money, the medium of commerce, belong to the Crown. By making peace or war, leagues and treaties, the King may open or stop trade as he pleases. The Admiralty Courts are grounded on the necessity of supporting a jurisdiction so extensive, though opposite to the usual doctrines of the common law. The laws of Oleron were made by Richard the First, and are still used in those courts." In the "Mare causum" are several regulations made by Kings.* Time forbids a more exact inquiry into this point: but such it is apprehended will, on inquiry, be found to have been the power of the Crown, that our argument may gain but cannot lose. We will proceed on a concession, that the power of regulating trade is vested in Parliament.

Commerce rests on concessions and restrictions mutually stipulated between the different Powers of the world;* and if these Colonies were sovereign states, they would, in all probability, be restricted to their present portion.† The people of England were freemen before they were merchants. Whether they will continue free, they themselves must determine. How they shall trade must be determined by Germans, French, Spaniards, Italians, Turks, Moores, &c. The right of acquiring property depends on the rights of others; the right of acquired property solely on the owner. The possessor is no owner without it. "Almost every leaf and page of all the volumes of the common law prove this right of property."‡ Why should this right be sacred in Great Britain, "the chief corner stone" in the solid foundation of her Constitution, and an empty name in her Colonies? The lamb that presumed to drink in the same stream with a stronger animal, though lower down the current, could not refute the charge of incommoding the latter by disturbing the water. Such power have reasons that appear despicable and detestable at first when they are properly enforced.

From this very principle arose her power; and can that power now be justly exerted in suppression of that principle? It cannot. Therefore a power || of regulating our trade

* The power of regulating trade was carried so far by the Crown as sometimes to impose duties; and Quean Elizabeth obtained several judgments in the Exchequer on such regulations. Lord Chief Justico Coke answers the argument founded on these, in 2 Inst. 62, 63. Princes aimed at too much power—exceeded due bounds—their imprudence produced "grievances"—and the people, who always suffer when their rulers are weak or wicked, would no longer trust such opportunities of oppression in their hand. The power of impressing seamen shows the extensive authority in naval affairs trusted to "the Crown."—1 Blackstone, 419. Foster's Rep. 154.

So extremely averse were the English to foreign affairs, and to the exercise even of Parliamentary authority concerning them, that though the Nation was justly provoked against the French King for the injury done to Edward the First, by withholding Acquitaine and his other inheritances in manner (as Lord Chief Justice Coke observes in his 2d Inst. p. 532,) and by some cruel actions of Frenchmen against Englishmen, and had in full Parliament granted him aids, subsides, for the maintenance of his wars in foreign parts, yet in the confirmationes chartarum, Edward the First, therein taking notice, "that many men doubted whether these grants by Parliament might not turn in servage of them and their heirs, as precedents, expressly declares in those statutes, that such grants shall not be drawn into custom." The comment says—"It was holden that the subjects of the Realm ought not to contribute to the maintenance of the King's wars out of the Realm—but this matter never was in quiet until it was more particularly explained by divers Acts of Parliament." The comment then mentions several Acts declaring that no Englishman should be bound to contribute to the King's wars out of England, in Scotland, Gascoigny, Ireland, Calais, (though these three last were countries dependent on England) and says, "these Acts of Parliament are but declarations of the ancient law of England. But here may be observed that when any ancient law or custom of Parliament" [such as before mentioned by making Acts relating to foreign wars] "is broken, and the Crown possessed of a precedent, how difficult a think it is to restore the subject again to his former freedom and safety."—2 In. 527-529.

The author of "The Controversy," who, with a liberality of sentiment, becoming a pleader against freedom and the best interest of mankind, counts "statute books"—"Ministers"—"King's Council"—p. 77, 78—"scraps of Journals"—p. 81, and ordinances of "the Rump Parliament"—p. 87, among his "Deities"—p. 78; and grieves that we poor "infidel" Colonists will not pay his idols the veneration his zeal judges due to them, has collected a good many fragments of proceedings in the House of Commons from the year 1614 to 1628. The amount is this, that the Ministers of the Crown insisted that Parliament could not make laws for America; that the Commons doubted; but at length, in 1724, came to an opinion that the King's patent for "a monopoly of fishing on the coasts of America was a grievance,"—that a "clause of forfeiture" against those who interfered in the fishery was void—and past a Bill "for a free liberty of fishing," &c. It appears in the debates that the fishery was free before the patent was granted. These extracts do not show what became of the Bill in the House of Lords. One Mr. Brooke said in 1621—"We may make laws here for Virginia, for if the King gives consent to this Bill past here and by the Lords, this will control the patent."

It seems, as if the notion of the King's regulating power still prevailed, but, that "a clause of forfeiture" in such regulations was void. So much had the power of Parliament grown since King John's reign. Nor does it appear to have been unreasonable, as commerce became of more consequence. The instance here mentioned related to a regulation of trade; and however the King might have accommodated the point, with the other branches of the Legislature, the whole proceeding is immaterial. If it was a right actually enjoyed by Englishmen to fish on the coasts of a plantation—and a grant by the Crown of the fishery to the people of the plantation excluding the people of England, could not divest them of their right—or, "if by the King's giving his consent to a Bill passed by Lords and Commons"—"the patent might be controlled"—it does not follow that the King, Lords, and Commons could divest the people of the plantations of all their rights.

* Case of the Ostend East India Company.

† "Another light, in which the laws of England consider the King with regard to domestick concerns, is the arbiter of commerce. By commerce, I at present mean domestick commerce only. It would lead me into too large a field, if I were to attempt to enter upon the nature of foreign trade, its privileges, regulations, and restrictions; and would be also quite beside the purpose of these commentaries, which are confined to the laws of England. Whereas no municipal laws can be sufficient to order and determine the very extensive and complicated affairs of traffick and merchandise; neither can they have a proper authority for this purpose. For, as these are transactions carried on between subjects of independent states, the municipal laws of one will not be regarded by the other. For which reason the affairs of commerce are regulated by a law of their own, called the Law Merchant, or Lex Mercatoria, which all Nations agree in and take notice of. And in particular it is held to be part of the law of England, which decides the causes of merchants by the general rules which obtain in all commercial countries; and that often even in matters relating to domestic trade, as for instance with regard to the drawing, the acceptance, and the transfer of inland bills of exchange."

‡ Parliamentary History.

|| This distinction between a Supreme Legislature and a power of regulating trade, is not a new one. We find it clearly made, by the Judges of England, at a period when the modern profitable mode of blending together in Parliament the authorities of the Crown and people, had not extinguished all reverence for the principles of the Constitution.

By the statute of the second of Henry the Sixth, ch, 4th, Calais was confirmed a staple place for the wool exported from England, Wales, and Ireland. Some wool shipped from this last Kingdom was consigned to Sluice, in Flanders. The ship, by stress of weather, was forced into Calais, where the wool was seized as forfeited. The chief question in the Exchequer Chamber was, whether the statute bound Ireland. In Richard the Third, twelfth, the case is thus reported: Et ibi quoad ad primam quostionem dicebant, quod terra Hibernia inter se habet Parliamentum et omnimodo curias prout Anglia, et per idem Parliamentum faciunt leges mutant leges, et non obligantur per statuta in Anglia, quia non hie habent milites Parliamenti; sod hoc intelligitur de terris per rebus in tarris tantum efficiend; sed personÆ eorum sunt subjecti regis, et tanquam subjecti erunt obligati ad aliquam rem extra terram illam faciendam contra statutum, sicut habitantes in Callesia, Gascognia, Guien, &c., dum fuere subjecti; et obedientes erunt sub admiraltate Anglia de re facts super altum mare; et similiter breve de errore de judiciis redditis in Hibernia in banco regishie in Anglia."

Brooke. Lord Chief Justice of the Common Pleas, mentions the case almost in the same words, title Parliament 98—but says—"the Chief Justice was of opinion, that the statutes of England shall bind Ireland, which was in a manner agreed by the other Justices; and yet it was denied the former day: Yet note, that Ireland is a Realm of itself, and has a Parliament in itself."

Here it may be observed, first, that the reason assigned by the Judges, why the statutes of England bind not the people of Ireland, though specially named, contains a constitutional principle, the sine qua of freedom. Secondly, that the people of Ireland, as subjects of the King, were "under the Admiralty of England as to things done on the high sea;" which is a strong confirmation given by the Judges of England to the supposition before made, of the power of regulating trade being formerly vested in the King. Thirdly, that the opinion of the Chief Justice, and the other Justices, such as it was, "reddendo singulo singulis, et secundum subjectam materiam," proves at most, only that Ireland was bound by statutes regulating their trade, for such was the second Henry the Sixth, ch. 4th, on which the case arose. Fourthly, that Brooke, a man of great eminence and dignity in the law, appears, by his note, to have been dissatisfied with the judgment, though only on a statute of regulation, for this reason of such weight with an Englishmen—"because Ireland is a Realm of itself, and has a Parliament within itself." Fifthly, that the authority of the Crown, including the regulation of the trade of Ireland, and sending writs of errour there, were sufficient restraints to secure the obedience and sub-ordination of that Kingdom. This reason seems to have held its ground till Lord Chief Justice Coke's time; and though a great rever-