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.
