The Case stated .

22 JUnii , 13 Car . the late King by Letters Parents erects a new Office called The Letter-Office of England , to send all Letters to and fro within England , Scotland , and Ireland , ( except such Letters as should be sent by common known Carriers , along with their Carts , Waggons , or Pack-horses ; or a Letter or more sent by a messenger on purpose , or by a friend : ) and to have and take for postage and conveyance certain Rates therein specified .

And grants that Office to Thomas Withering for life , absque aliquo inde reddendo ; and with restraints of all others to carry , &c.

Notwithstanding those restrictions , divers persons continued their Liberty in sending and carrying Letters by Post ; and when Withering offered to put in execution his restrictive clauses , and by colour thereof imprisoned Grover , Chatman , Cotton , and Mackedral , for posting with Letters ; by the Votes of the late Parliament , on the 16 of August 1642. resolved , That the taking of Letters from , and the several restraints and imprisonments of the said persons , was against Law , Liberty , and freedom of the Subject ; and that those several persons ought to have reparations from Cook , Windebank , Secretaries of State , and Withering ; and that the said Secretaries and Withering were Delinquents for the same : as by the Votes appeareth .

Mr. Prideaux , upon this occasion , and upon the right of Liberty that every man had to the employment , steps into it , keeps up a restraint , and continues to exact the high rate of 6 d . for every Letter .

The UNDERTAKERS observing this extortive rate to be held up , as well in Witherings life-time , as after his death , when the pretence of that illegal Grant was ended in point of limitation : and observing that the whole benefit went into one private hand , and that many publike and well-affected people were very much agrieved thereat ; They conceived it would be a work both acceptable to the State , and beneficial to the people , to contrive the abatement of those excessive rates ; and therefore , maugre all oppositions and abuses of the Monopolizer and his interest , they at first dash adventured on Postage at the rates of 3 d . a Letter beyond 80 miles , and 2 d . a Letter within or to 80 miles ; and to make return three times weekly . And their exact performance in that Undertaking was so grateful to the people , and successful , that it forced the Monopolizer , for the present onely , and out of a designe to supplant the Undertakers , to publish his readiness to carry at the same rates .

But his designes not working with the people , ( who were sensible from whom their benefit came ) the Undertakers persist , till it pleased God to devolve Authority on such as had from the beginning countenanced this free undertaking , and who , in their first entrance on the management of Publike affairs , concurred with the peoples approbation of the Undertakers , and intrusted them with their ordinary and extraordinary Dispatches ; which so daunted their Antagonist , that he deserted the business , and the Undertakers persisted to perform the service to the State gratis , and to all others faithfully , at the lowe rate aforesaid : and reducing the same into one chanel , they entertained as many of the old Post-masters as were honest and well-affected , according to the direction of the Councel of State ; provided Packet-boats for Ireland , &c. and have adventured , after so short experience , to make an offer of sinking the rates yet lower , viz. to 2 d . and 1 d . a Letter . ☞

But to frustrate the Undertakers , and before their great expences were reimbursed , an Order was procured from the late Councel of State , during the interval of Parliament , to invest one Mr. John Manley , in the Inland and Forreign Postage , under a farm of 10100 l. per an . And the said Manley , immediately thereor , in the company of Mr. Prideaux , did , in a riotous manner , with swords and other weapons , by force break into the house where the Goods and Letters of the Undertakers were , and thrust their servants out of doors ; and , after threatning speeches , and many more outrages committed , required the Undertakers to receive no more Letters .

The right of Liberty vindicated and proved .

THis being the sum of the Case , it follows that the right of Liberty on which they grounded their Undertaking be vindicated .

Wherein the Question is , Whether there be a Right of Liberty in the Free people of England , up and down the common roads of England , by way of common Postage to send & carry as they please , and at such rates as they shall agree , Letters , Packets , and such-like Dispatches incident to Commerce and Communication , without being restrainable to one person , whom all must be necessitated to trust , and by whom onely all must send in the way of common Postage , and at such rates as it shall please the granter of that restraint to limit .

The very light of Nature shews , that originally to a Community of free men linked First proof , by the light of Nature , and by the original nature of a Free State . together as a Commonwealth , and by civil Commerce and Intercourse aiming at Temporal weal , a right of Liberty to communicate their intents and mindes , by all lawful ways , and therefore by this way of Postage , as well as by any other , is innate and inherent , as that without which free Commerce cannot consist .

If then in the original Constitution of the Free State of England , ( as of every other Civil Community ) this Liberty was a right inherent in the People , it still remains in them , unless it can be shewn that they have given it up ; which never can be shewn : for why should rhey give up their liberty to communicate their affairs by this way of common Postage , more then by any other way ? Or how can steady limits or distinctive bounds be set between this way of Liberty that they would restrain , and other ways of Liberty that they would seem to leave them ? For if one , and two , and ten may use a special Poster , why may not a Corporation do the like ? and what shall distinguish such a special Post as you seem to allow , from a common , which you would restrain ?

To restrain all ways of Free Communication , is downright to destroy Society : to restrain some lawful ways , is to impair Society , and destroyeth freedom of Society , and maketh way arbitrarily , by further and further restraints , to impair it at pleasure .

Besides that it administreth occasion of dayly quarrels about the limits of Restraint .

All which reasons make it more then probable , that the Original Liberty of the free People in all lawful ways to communicate , was by them never yeelded up to restraint .

On the other side , it will easily be proved , that they never intrusted the Supreme Secondly , by the Fundamental Law of England . Ordinary Power with Authority in any way to restrain lawful employments , but with watchful jealousie have in all Ages preserved a full and free Liberty to every man to undertake them ; well considering , that any restraint of lawful Industries , is a kinde of strangling and stopping the Life-blood to flow freely in all its veins : This destroys or hurts the whole Natural body , That the Politick .

And therefore by the Fundamental Common Law of England , a Bond , though the party himself will give it to restrain himself of his lawful Trade or Industry , is adjudged void , and not binding . 2 H. 5. fol. 5. Plito 26.

On the same ground it is , that the Fundamental Law of England will not permit you to distrein and take from a man , though for a just duty , any Instrument necessary to his Trade , or free course of Industry , 14 H. 8. The Anvil from a Smith , or Millstone from the Mill , may not be distrained or taken , because it would interrupt and restrain their lawful Employments . And hereto accords the Law of God , Deut . 24. 6. No man shall take the nether or the upper milstone to pledge : for he taketh a mans life to pledge . To restrain any man of his lawful means of Livelihood , is to take away his life : and yet Mr. Manley would , &c.

On the same ground it i● , that Corporations or Bodies Politick ( though authorized to make Constitutions and by Laws , yet ) if they make a Law any way restraining any man from any lawful way of Employment or Industry , such Constitution o● Law ( be it never so specious , and though perhaps it intended Order and Regulation of Employments , yet ) restraining , it is null and void . 11 Rep. fol. 53. Taylors of Ipswich , Their Constitution ( That none within their Coporation should exercise the Faculty or Employment of a Taylor until they had presented themselves , and had approbation from the Master and Wardens ) adjudged void , though it did not absolutely restrain , as Mr. Manley would in this case all others from executing this lawful Employment of Postage .

On the same ground , Letters Patents ( though passed under the Great Seal of England ) if they restrain any lawful Employment to one man , & leave it not free to every other , are void ; as in the 11 Rep. fol. 85. the Patent that Darcy onely should have the making and importing of Playing Cards , the Restraint of others from that Employment ( though it served but to Vanity and Gaming , which might be prohibited ) adjudged unlawful , on grave and weighty reasons . May then these Undertakers be restrained from this Employment , that serves eminently to enliven Merchandise & all Commerce ?

50 E. 3. Rot . 33. Parl . Rol . one Peachey obtained a Patent that he should be the onely Importer of Sweet Wines : but his Patent was damned by Judgment in Parliament .

21 E. 4. fol. 79. Edw . the fourth by Patent granted to one Molle , that he should have the Office of Brokage , or of driving Bargains 'twixt Citizen and Citizen in London ; and the Patent censured , as against Law . And yet Mr. Manley will expect to be the onely Poster with Letters and Dispatches ; by which Citizens and all others are to drive their Bargains and Contracts .

Hundreds of Instances might be heaped up , to shew the vigilancie of the Courts of of Law and of Parliaments in all Ages , to withstand all restraints of lawful Employments . One Instance more shall conclude ; which is this .

The Corporation of Gravesend had by Prescription an ancient Ferry and Passage with a common Barge for the benefit of poor Passengers to and fro 'twixt London and Gravesend , which carried them for 2 d . apiece , and was to pass away as soon as at that rate it had 4 s . But the Corporation finding that oftentimes when the common Barge had 23 Passengers , and was to stay but for one more , other Water-men that plyed at the Ferry , would take up the next Passenger at cheap rates , whereby the Barge lay long for want of a compleat number ; to rectifie which Mischief , the Corporation ( being thereto impowered by Letters Patents ) make a Constitution or Law , That no other should carry , till the common Barge had its full number . This ( though it restrained not others to carry , but onely gave pre-eminence to the Barge , and that at that onely Ferry , and that for so good an end , yet ) on great and grave reasons , Tr. 10 Jac . C. B. it was adjudged an unlawful restraint , for that others were thereby abridged to make use of a lawful means of Livelihood : And when a Passenger was willing to be carried by another Water-man , and he willing to carry , what reason to abridge him of his lawful Employment ? And if pre-eminence might be given in that Case , then Letters Patents might grant pre-eminence to one Coach-man to carry in London-streets , before another should take a Carriage ; and way would be made to some restraint in every lawful Employment .

Now if to grant a pre-eminence in carriage , be not to be permitted ; shall it be thought lawful to exclude these Undertakers totally from carrying for all that are willing to send by them ?

To these proofs of Liberty drawn out of the Fundamental Common Law of England , By the Great Charter , and other Acts of Parliament . adde that of Magna Charta , cap . 29. No free man shall be disseized of his Freehold or Liberties , &c. Which the Chief Justice Cook glosseth , in these words : This word LIBERTIES ( saith he ) signifieth the freedom that the Subjects have . For example : The Company of the Merchant-Taylors of London having power by their Charter to make Ordinances , made an Ordinance that every brother of the same Society should put the one half of his Clothes to be dressed by some Cloth-worker free of the same Company ; and it was adjudged that this Ordinance was against Law , because it restrains the Liberty of the Subject to put his Cl●thes to be dressed by whom he will : & sic de similibus . And so it is if such or the like Grant had been made by Letters Patents . Thus he .

And was this partial restraint of liberty to use whom they would for dressing , against Law and Liberty confirmed by Magna Charta ; and is not this total of the Peoples Liberty to use whom they will for Posting with their Letters and Dispatches , against the same Magna Charta ? And if against Magna Charta , against more then 20 other Acts of Parliament confirming the same . So that it is needless to adde more Acts of Parliament for vindication of this right of Liberty .

Now to these proofs , onely adde the Resolves in Parliament , and Resolution of Resolves of Parliament , & Resolution of Judges in the point . Judges in the very point in this particular Case .

1. The Resolve 16 Augusti , 1642. in stating the Case above mentioned .

2. In pursuance of an Order of the Lords in Parliament , 22 Julii , 1646. the opinions of Judge Rolle and Phesant were delivered , That the clauses of Restraint in Witherings Patent were void , and not good in Law . And the Committee of Lords of Parliament concurred in opinion with the Judges . Whereupon , Ordered , &c.

This which is said , together with the manifold mischiefs and miseries that ever ensue on such Restraints ( which the Authorities cited give some touch of ) shall serve to conclude this Part , which is to vindicate and prove a legal right of Liberty not subject to Monopolizing Restraints .

Farming of Publike Offices condemned .

NOw as Restraint of just Liberty is condemned by Law , as pernitious to a free People ; so yet further , the mercenary farming of Publike Offices or Employments is much more abhorred , as the very bane of a Republike . This abuse was it that caused the Romane Patriot to bid a sad and sharp farewel to Rome :

Vade venalis civitas , mox peritura si emptorem invenias . Salust .

Against this abuse the wisdom of Parliament bendsit self , 12 R. 2. c . 2. That none should be put in Offices by suit , or for reward , gift , or brokage , but upon desert . A Law ( saith Cook ) worthy to be written in letters of gold .

Against this abuse in many Offices of the like nature , the Stat. 5 E. 6. c . 16. provides a sharp penalty ; and the Preamble condemns it in all Places of Publike Trust . And Reason and Experience shew it to be very incovenient : for will not he that thus buys his Employment by whole-sale , sell by retail , in polling and exacting on the people ? And though his Exactions should be grievous , will he not hope to finde favour against Complaints , as being the States Farmer ?

And seeing the State are at no costs to accommodate the People with Postage , what ground is there to nip a Farm or peny towards it , out of every poor mother that desires to hear from her childe ? Is not this that Tallagium non concedendum , against which the Stat. 25 E. 1. & 34 E. 1. de Tallagio , do provide ? Within this Act ( saith Cook 2 Inst. 533 ) are all new Offices erected with new Fees , or old Offices with new Fees : for that is a Tallage put upon the Subject . And therefore such Grant , though made pro bono publico , was in Parl . 13 H. 4. num . 43. condemned , quia sonat in oppressionem populi . And if this of Postage be not a new Office , yet in the restrictive part it is no elder then 13 Car . and that restriction no sooner put in use , but condemned in Parl . 1642. And in this point of raising a Farm out of this publike employment , the designe is so new , that to this day the Free-men of England have not been acquainted with it ; nor did any polling Courtier , when the strains of Prerogative were at highest , ever offer at it : but the Kings Grant was always Absque aliquo inde reddendo .

If it be objected , That the absolute power of Parliament is not restrained to the Law that is , but may make a a Law for erecting an Office , and with restraint of all men to use that Officer , and at such a fee or rate out of which they may reserve a Farm : 't is humbly conceived that the wisdom of Parliament will not be taken in the wiles of such a Project , though the Projector shall bait his design with 10100 l. per an . profit . For that it is not only against Law , but against the fundamental Common law , against the innate liberty of a free-born people , against the Great Charter of Liberties , and sundry high-prized Acts of Parliament ; and so , that it makes way to , and introduceth all manner of Monopolies . The opposing whereof , hath made former Parliaments most dear to the people , and their memory precious . And it seems probable , that the People would better brook 10100 l. per mens . added to the publike Tax , then 10100 l. per an . this way to be raised : for that being grounded on extraordinary occasions , cannot be drawn into example to charge them ordinarily ( as this way : ) That raiseth no more then is imposed , & which comes to the Publike use ; This gives occasion to the Farmer , under colour of raising his Farm , to raise to himself treble as much , by keeping up high rates , and exacting . That proportionably lays the charge on all men according to their value , This pincheth the Merchant and active Dealer ( most to be favoured and encouraged ) and lets the idle Drone and lazie Peasant go free ; which is against Distributive justice .

All which Reasons and Considerations are humbly submitted to judgement of the true Patriots of the Peoples Liberty , the present Parliament .

FINIS .