第 7 节
作者:小秋      更新:2021-02-20 18:19      字数:9322
  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