Blad v. Bamfield.

HIGH COURT OF CHANCERY

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Original Citation: (1674) 3 Swans 604

English Reports Citation: 36 E.R. 992

21st November, 26 Car. 2, 1674.

Blad v. Bamfield. In Chancery. -21 st November, 20 Car. 2, 1074.

Perpetual injunction to restrain proceedings against a Dane, for tlie seizure of pro¡perty of English subjects in Iceland, the seizure being sanctionsd by the Danish, authorities.

The case of Peter Blad, a subject of Denmark, against Bamfield and Others, came now to be heard (of which see the beginning before at the council board (see the preceding case [and note])), and the scope of the suit was to stay several actions commenced at law in trespass and trover, for seizing certain [605] goods of the Defendants for trading in Iceland, contrary to certain privileges claimed there by the Plaintiff and others. The Defendants insisted that tins was no cause of state, and was ergo dismissed from the council table; that the injuries they had suffered were great, and such as were done with gome kind of affront to and contempt of the English nation ; that they had a most undoubted right of trade in Iceland, and by the articles of peace with Denmark, were to use their commerce with the subjects of Denmark without molestation ; that if the King of Denmark had granted any patents of privilege contrary to the freedom of trade, they were illegal, and a breach of the treaty in question ; and if the patents were of ancienter date, they had been dispensed with by the contrary practice, which had suffered English to trade there, and so invited the Defendants ; that, however, the Plaintiff had already had all the benefit of this Court which he could reasonably expect, for he obtained an injunction till he had examined his witnesses, and now having perfected his proofs, whatever could avail him here, would also avail him at law ; wherefore they prayed leave, that now, at last, they might go to their trial at law.

I said never was any cause more properly before the Court than the case in question ; first, as it relates to a trespass done upon the high sea, which though it may seem to belong to the cognisance of the admiral, yet I took this occasion to show that the Court of Chancery hath always had an admiral jurisdiction, not only per viam appellationis, but per viam evocationis too, and may send for any cause out of the Admiralty to determine it here ; of which there are many precedents in Not/'s MSS. 88 ; and in my little book, in the preface, de offlcio Cancellarii, sect. 18 ; and in my parchment book in [606] octavo, tit. Admiralty (3 Strans. 604); secondly, as it had relation to articles of peace, all leagues and safe conducts being anciently enrolled in this court. That it is very true this cause was dismissed from the Council Board, being not looked on there as a case of state, because for ought appeared to them, it might be a private injury, and unwarrantable, and so fit to be left to a legal dis¡cussion ; but now, the very manner of the defence offered by the Defendants had made it directly a case of state ; for they insist upon the articles of peace to justify their commerce, which is of vast consequence to the public ; for every misinterpreta¡tion of an article may be the unhappy occasion of a war ; and if it had been known at Board that this would have been the main part of their case, doubtless the Council would not have suffered it to depend in Westminster Hall. But in truth this pretence of articles of peace must needs fail the Defendants; for the articles of free trade are reciprocal, and are understood on both sides, with exception to the laws and customs of each kingdom. Put the case then that a Danish ship should trade to the Bar-badoes, or any other of his majesty's foreign plantations, and were thereupon taken and seized, or should break in upon the privileges granted by his majesty to the

3 SWANS. 607 (App.). COOK V. BAMVlELT) 993

East India Company, and were there arrested at Bantam or Fort St. George, doubtless this were no breach of the treaty on our part; and if any of his majesty's subjects who seized that ship at the Barbadoes, or judges, should be then molested and prose¡cuted in Denmark, in a private action, for what they did in obedience to the laws of their king and country, it would look like such a breach on their part as might well occasion a further rupture on ours. Ergo, to come now to the present ease, certainly no case was ever [607] better proved ; for the Plaintiff hath proved letters patent from the King of Denmark for the sole trade of Iceland ; a seizure by virtue of that patent ; a sentence upon that seizure ; a confirmation of that sentence by the Chancellor of Denmark ; an execution of that sentence after confirmation ; and a payment of two thirds to the King of Denmark after that execution. Now, after all this, to send it to a trial at law, where either the Court must pretend to judge of the validity of the king's letters patent in Denmark, or of the exposition and meaning of the articles of peace ; or that a common jury should try whether the English have a right to trade in Iceland, is monstrous and absurd.

Wherefore the whole state of the case appearing now before me, as much as ever it can do in. any other place, I thought fit to put an end to it, and decreed that the Plaintiff should have a perpetual injunction to stay the Defendant's suit at law ; and that satisfaction should be acknowledged upon that judgment which the Plaintiff had acknowledged to the Defendants as a temporary security till the hearing of the cause.-Lord Nottingham's MSS.