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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 Monopoly； from ｛Greek word omitted｝ and ｛Greek word
omitted｝； to converse alone。 For in so doing； they so live； as
none can live by them； in respect of their singular gaine in this
kinde： Contrary to that honest Poverbiall rule of the Dutch； that
men must Leuen ende laeten Leuen： So live as other men may Live
by them。 But here I cannot but discharge all those Corporations
of this Kingdome； of this part of Monopoly； which afford to every
particular trader thereof； the managing of his owne stocke； in
buying and selling as hee can； without any combination with
others。 In which it is an impossible as unusual； for any to have
command of the rice of their Commodities： because there is such a
multitude of Traders of them； and every man is at liberty to buy
or sell； without any rule by any generall order； or meanes to
hold one price。 But the greatest suspition of Monopoly in
Corporations； is in such as Trade； in Joint Stockes。 Whereof if
there be any that tradeth in a Joint Stocke； and hath the Sole
buying or selling of any Commodity； and buy and sell the same
Jointly； as by one person or common factor； such is guilty of
Monopoly。
For particular men； they may also commit Monopolizing： either
by procuring Patents by misinformation of the State； for the Sole
Importing or Exporting； buying or selling at their owne prises；
to the restraint of the Common Liberty； and the Publique Utility
of the Kingdome： or else when some one or few； without any
Authority； doe joine together to engrosse and buy in a Commodity；
and sell it out againe at their owne price。 Of the former kinde；
are those Catalogue of crying Monopolies； which his Majestie in
His high Wisdome and Grace damned in His Princely Proclamation of
the tenth of July last； in the XIX year of His Majesties most
happy Reigne over this Kingdome： Many of which were abused in the
Practice； from which they appeared to be in the Institution。 And
here a pretty question occurreth。 When a Patent is granted to a
certaine person or persons； so as hee or they have power to
licence others to exercise some kinde of Commerce solely； and
consequently with command of the price： that question is； who is
then the Monopolian； whether the Patentees； or their Assignes？ In
this case I suppose； that both the one and the other commit
Monopoly。 For first； the Patentees make their price at their
pleasure upon their Assignes； and they againe upon the Subjects。
So that here is Mnnopoly upon Monopoly： like your Salt upon Salt；
Interest upon Interest； or the Decompositum in Grammer。
In the latter； some sorts of Trades…men in London； are said
to offend。 Which being matters of Generall note； and willing to
avoid offence； I will passe by such particulars。 And this shall
suffice for the Definition and Distribution of Monopoly。
Cap。 IIII。
Of want of Government in Trade。
Such is the Forme of Trade considered in the Strict Use or
Abuse of Government； by way of Monopoly。 It now remaineth briefly
to shew the Too Loose Use thereo