The parts then of a Monopoly are twaine. The restraint of the liberty of Commerce to some one or few: and the setting of the price at the pleasure of the Monopolian to his private benefit, and the prejudice of the publique. Upon which two hinges every Monopoly turneth. And these two parts are respectively repugnant to the two fundamental requisites of all good Lawes: to with, Equity and Utility. For it against Equity, that one member of a Common-wealth should be more free, then another of equall ranke and condition. And what can be more contrary to Publique Utility, then that some one or few persons, should sway the price of any thing usefull to the Common-wealth to their owne enriching, and the common losse of other men? And here it is to bee well observed, that unlesse these two parts concurre in a Monopoly: it cannot truely and properly be so called, nor ought it so to bee accounted. And therefore Althusius following Decianus, saith well of that restraint of the common liberty, which we call Suit of Mill: which compelleth men to use this or that Mill to grinde corne, and none other: that it doth only Sapere Monopolium, Savour of Monopoly: but that it is not truely and properly a Monopoly. For that case of Suit of Mill, unlesse there be a greater tolle or recompence exacted for grinding, then at other Milles, it falleth onely within the first part of a Monopoly, to wit, of the restraint of the publicke liberty; but not within compasse of the other part, the setting of the price. but for this restraint of the publique liberty of Commerce, it may be so ordered by the wisedome of the State, that it may be both Lawfull and Beneficiall to the Common-wealth. Which assertion, because it may seeme strange to some, I will make evident by good Authority and Examples. Peter Martyr that famous light of the Churches of the Gospell, defendeth the restraint of Solomon, that none shold buy Horses of Egypt without his licence, to be Lawfull. And of this kinde is the Preemption of Tinne here in England, granted by His Majesties gracious letters Patents do somefew, with restraint of all others: which I dare boldly affirme is not onely Lawfull, but very Beneficiall also to this Commonwealth. For thereby our Thrice Noble Prince receiveth a good revenue, and the Tinne of this Land is sold for many thousand pounds a yeare more in Forrein parts, then otherwise it would, to the great increase of the Common stocke of this Kingdome. Also the Law of this Realme alloweth, that if any man invent a new Art, beneficiall to the Common wealth, he may have a Patent to use that Arte soley, with restraint of all others for seven years: as well in recompence of his industry, as for the incouragement of others, to study and invent things profitable for the publique symbiosis. The Statues of the Kingdome restraine from the exercise of sundry Crafts, all such as have not served an apprentishood unto the art which they would exercise: to the ende that those artes might be brought to better perfection, and the things made, might be good and serviceable for those that buy and use them.
The restraint of the Publique Liberty, is sometimes exercised by Private Authority: sometimes by Publique. Which distinction is made by the Emperour Zeno. Iubemus ne quis prosua authoritate, vel sacro elicito rescripto, etc. Monopolium audeat exercere.
The former, is practised when any one or more, have by their owne private contracts, gotten any Commoditie or matter of Commerce, wholly into their owne hands. Of this kinde are the examples above cited out of Aristotle.
The latter, is when by Publique Authority, the liberty of the subject is restrained: which is done, sometimes by the Prerogative of the King: sometimes by Act of Parliament.
The former, by dispensing with a generall Law in some point, and applying the dispensation to some one or fewe, with restraint of others. The latter, by prohibiting all, but some one or few persons to use the benefit of the Law in some point or other.
For dispensing with the Lawes, it is without question, that the King hath power to dispence with a Penall Law, when it prohibiteth that which is not Malum in se. For the Parliament having made a Statute with intent of the Publique good: yet the same by reason of something not foreseen at the making of the Law, may prove very prejudiciall in the Execution. And then the Malum prohibitum, as the Lawyers speake, may be dispenced with by the King. Thus the Parliament having prohibited the exportation of white Clothes undre'st above the price of four pound the Cloth: the observation of that Statute was found by experience to be very prejudiciall to the Trade, and free vent of the Cloth in forreine parts. Whereupon Q. Elizabeth, granted a Speciall Licence to the Fellowship of the Merchant Adventurers, to transport all sorts of white Clothes undre'st, with a Non obstante to that Statute. And although all other men stood lyable to the Statute stil, and were restrained, yet the Utility that hereby arose to the Common-wealth, did farre exceed the restraint of the Publique Liberty. For within few yeares after the granting of this Licence, the vent of Cloth in forreine parts increased to twice as much, as formerly it was during the strict observation of the Statute. Other like dispensations of Statutes, I might instance: as that of the 28 H.8. concerning the retailing of Gasgoigne Wines at two pence a quart: which is dispenced with, by a licence to the Company of the Vintners: but these may suffice for every mans understanding of this kinde of restraint.
