to the Detriment of other men。
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。
For Prohibition by Act of Parliament： such is the Act whereby
all the subjects of this Realme； excepting such as are of the
Corporation of the Muscovy Company； are forbidden to trade into
any part of Russia。 Also that of 3 Jacob concerning Artizan
Skinnes； whereby all but the Company； are forbidden to buy and
retail some sorts of Skinnes。 In these and the like； the
Parliament maketh restraint of the Common liberty of Commerce；
and the same restraint is againe released； not unto all； but to
some persons or Corporations by Speciall exception and proviso of
the Act of Parliament。
The latter kind of restraint by Publique Authority； is when
that which seemeth by the Lawe to be free to all is by some
Patent or Proclamation of the Prince； prohibited to all； saving
some certaine Corporations； or persons specially excepted and
authorized in the same Patent or Proclamation。 Of this kind are
generally reputed all Corporations of Merchants； which are not
confirmed by Act of Parliament。 Which are generally reputed to
carry with them a restraint to others； of that liberty； which the
Law doth seeme to offer to all in point of Commerce。 Whence it is
that so many pleade the Freedome of subjects； and presse； or
rather oppresse that plea of equity； hat it is equall that all
subjects should bee a like free to be Merchants in all Trades。 To
whom I answere； that first there is no good Equality in it；
because it is against the Publique Utility that all should bee
Merchants at their pleasure。 For that's not equall； that may
seeme profitable to one； and bee hurtful to many。 Atque ipso
utilitas iusti prop matter & aequi； as Horace speaketh。 And yet
what point of equity is broken； when the freedome of Societies is
so carried； that it is open to all men upon equall termes； that
is to say； either by service or purchase？ Otherwise it were very
unequall； that one man should serve for his freedome； or buy the
same： and another man should have it for nothing。 If this point
were well thought upon； I prosume the Gracious Grants and
priviledges of His Majestie； conferred upon Societies； would not
seeme so much a restraint of the Common liberty； as a prudent
ordering and accommodating thereof unto the Publique Utility。 For
it hath ever beene a Policy of this State； to reduce the Trades
of Merchants of this Kingdome into Corporations and Societies；
for the advancement of Trade； by the benefit of order and
government： well foreseeing that there cannot be any greater Bane
to a Well…governed Common…wealth； then Ill…governed and
disorderly Trade。 Whereof I shall have fitter occasion to speake
in the next Chapter； when I come to treat of the Incoveniences of
the want of government in Trade。 So that in this case the
generall rule must be this； that such a restraint of the Publique
Liberty； as is before mentioned； is alwayes to be allowed； when
the same is recompenced with a Publique Utility。 According to
that of Tacitus； Omne magnum exemplum habet is se aliquid iniqui；
quod utilitate publica contra singulos compensatur。 Also the
liberty that the Law seemeth to give the subjects in Trade； is to
be understood； of imployment Within the Kingdome； not Without the
Kingdome。 For what liberty can a Nationall Law； give to a Forrein
Trade under a Forreine Jurisdiction； when the liberty or
restraint thereof dependeth upon those Forreine Princes and
States where that Trade is tollerated？ Therfore the Law may give
the subject Liberty Within the Land； but it is the King that must
enable men to trade Without the Land。 For all the Trade of the
Merchants of this Kingdome into Forreine Countries； is grounded
upon the Amity of the King； and the Treaties of Peace contracted
by the King； with the Kings and Rulers of those forreine parts；
at his owne charge； and by His owne Authoritie； without the
assistance of His Parliament。 And therefore it holdeth good
conguity； that the King by His like Authority； may have the
disposing and ordering of such His contracts at his owne
pleasure。
The second part of Monopoly remaineth； of the setting of the
price at the pleasure of the Monopolist； to his private gaine；
and the publique losse。 This Gothofredus calleth the forme of a
Monopoly。 And in truth it is the very Soule and Accomplishment
thereof。 And he or they that have this power over the price of
the thing they negotiate； may well be said according to the
notation of Mon