Front Page Titles (by Subject) The Case of Monopolies. - Selected Writings of Sir Edward Coke, vol. I
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
The Case of Monopolies. - Sir Edward Coke, Selected Writings of Sir Edward Coke, vol. I 
The Selected Writings and Speeches of Sir Edward Coke, ed. Steve Sheppard (Indianapolis: Liberty Fund, 2003). Vol. 1.
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
The Case of Monopolies.
(1602) Trinity Term, 44 Elizabeth I In the Court of King’s Bench.
First Published in the Reports, volume 11, page 84b.
Ed.: Early in Elizabeth I’s reign, a Statute was passed forbidding the importation of playing cards. Later, a monopoly was granted to Ralph Bowes to manufacture and sell playing cards, or to license others to sell them, in England, for twelve years. At the end of Bowes’ monopoly, the queen gave it, and the right to stamp his cards as legal, to Edward Darcy then for twenty-one years, in return for an annual payment of 100 marks. T. Allein, a London haberdasher, sold 180 gross ofplaying cards, without paying Darcy for the privilege or for the use of his stamp. Darcy sued Allein. Darcy was represented by Dodderidge, Fuller, Fleming, and Coke, as Attorney General, which he was expected to do to defend the queen’s privilege in granting monopolies (and in reaping their revenues). Crook, Altham and Tanfield, represented Allien. The King’s Bench ruled that the grant was void, because monopolies are against the Common Law, which protects the freedom of trade and liberty of the subject, and against the statutes of Parliament.
This is an unusual report: Coke, at least formally, lost the Case, although his heart was probably not in it. Notice his contrast between the public and private good and the description toward the end of the report of the “odious monopoly” and his contrast of the stated and real purposes of it. For cases on restraint from the professions, see also Dr. Bonham’s Case, p. 264, Case of the Tailors of Ipswich, p. 390.
Edward Darcy, Esquire, a Groom of the Chamber to Queen Elizabeth, brought an Action on the Case against Thomas Allein, Haberdasher of London, and declared, That Queen Eliz., 13 Junii, anno 30, intending that her subjects being able men to exercise Husbandry, should apply themselves there-unto, and that they should not imploy themselves to the making of playing Cards, which had not been any antient manual Occupation within this Realm; and that the making of such a multitude of cards, Card playing was become very frequent, and chiefly amongst servants and apprentices and poor Artificers; and to the end her subjects might apply themselves to more faithful and necessary Trades, by her Letters Patents under the Great Seal of the same did grant unto Ralph Bowes, Esqire, full power, license and authority by himself, his servants, factors and deputies, to provide and buy in any parts beyond the Sea, all such playing Cards as he thought good, and to bring them within this Realm; and to sell and utter them within the same, and that he, his servants, factors and deputies should have and enjoy the whole Trade, Traffic and Merchandize of all playing Cards: And by the said Letters Patents further |[85 a] granted to the said Ralph Bowes, That the said Ralph Bowes his servants, factors, and deputies, and no other should have the making of playing Cards within the Realm, to have and to hold for twelve years; and by the said Letters Patents the Queene charged and commanded, That no person or persons besides the said Ralph &c. should bring any Cards within the Realm during those twelve years; Nor should buy, sell, or offer to be sold within the said Realm, within the said term any playing Cards, nor should make, or cause to be made any playing Cards within the said Realm, upon pain of the Queens gracious displeasure, and of such fine and punishment as Offenders in the Case of voluntary contempt deserve. And afterwards the Queen, 11 Aug. anno 40 Eliz. by her Letters Patents reciting the former grants made to Ralph Bowes, granted the Plaintiff, his Executors, Administrators, and their deputies, the same priviledges, authorities, and other the said premisses for one and twenty years after the end of the former time, rendring to the Queen hundred marks per annum; And further granted to him a Seal for to mark the Cards. And further declared, That after the end of the said term of twelve yeers, scil. 30 Junii, an. 42 Eliz. the Plaintiff caused to be made four hundred grosses of Cards for the necessary uses of the subjects, to be sold within this Realm, and had spent in the working of them 5000 l. and that the Defendant knowing the said grant and prohibition in the Plaintiff’s Letters Patents, and other the premisses, 15 Martii, 44 Eliz. without the Queens License or the Plaintiffs, &c. at Westminster did cause eightie grosses of playing Cards to be made and as well those, as 100 other grosses of playing Cards, of which many were made within the Realm, or brought within the Realm by the Plaintiff, or his servants, factors or deputies, &c. nor marked with his Seal; he had imported within the Realm, and had sold and uttered them to sundry persons unknown, and shewed some in certain, for which the Plaintiff could not utter his playing Cards, &c. Contra formam praedict’ literar’ patentium, et in contemptum dictae Dominae Reginae,1 whereby the Plaintiff was disabled to pay his farm rent, to the Plaintiffs damages.
The Defendant, besides to one half grosse pleaded, Not Guilty; and as to that he pleaded, that the City of London is an antient city, and within the same, time out of mind there hath been a Society of Haberdashers; and that within the said City there was a Custom, Quod quaelibet persona de societate illa, usus fuit et consuevit emere |[85 b] vendere, et libere merchandizare omnem rem et omnes res merchandizabiles infra hoc regnum Angliae de quocunque, vel quibuscunque personis, &c.2 And pleaded, That he was civis et liber homo de civitate et societate illa,3 and sold the said half gross of playing Cards, being made within the Realm, &c. as it was lawful from him to do; upon which the Plaintiffe did demurre in Law.
And this Case was argued at the Bar by Dodderidg, Fuller, Fleming Solicitor, and Coke Attorney-General, for the Plaintiff. And by George Crook, Altham, and Tanfield for the Defendant. And in this Case two general questions were moved and argued at the Bar, arising upon the two distinct grants in the said Letters Patents, viz.
1. If the said Grant to the Plaintiff of the sole making of Cards within the Realm were good or not?
2. If the Licence or dispensation to have the sole importation of Foreign Cards granted to the Plaintiffe, were available or not in Law. To the bar, no regard was had, because it was no more then the Common Law would have said, and then no such particular Custome ought to have been alleged, for in his quae de jure communi omnibus conceduntur, consuetudo alicujus patriae vel loci non est alleganda,4 and therewith agreeth 8 Edw. 4. 5a. &c. And although the bar was holden superfluous, yet it shall not turn the Defendant to any prejudice, that he may well take advantage of the insufficiency of the Court.
As to the first question it was argued on the Plaintiffs side, That the said Grant of the sole making of playing Cards within the Realme, was good for three causes:
1. Because the said playing Cards were not any merchandize, or thing concerning Trade of any necessary use, but things of vanity, and the occasion of expence of time, wasting of patrimonies, and of the livings of many, the loss of the service and work of servants, causes of want, which is the mother of wo and perdition, and therefore it belongeth to the Queen (who is Parens patriae, & paterfamilias totius regni,5 and as it is said in 20 Hen. 7. fol. 4. Capitalis Justiciarius Angliae)6 to take away the great abuse, and to take order for the moderate and convenient use of them.
2. In matters of recreation and pleasure the Queen hath a Prerogative given her by the Law to take such order for such moderate use of them as shall seem good to her.
3. The Queen in regard of the great abuse of them, and of the deceit of the subjects by reason of them might utterly suppress them, and by |[86 a] consequence without injury to any one, she might moderate and suffer them at her pleasure. And the reason of the Law which giveth the King these Prerogatives in matters of recreation and pleasure was, because the greatest part of men are ready to exceed in them. And upon these grounds divers Cases were put; scil. That no subject can make a Park, Chase, or Warren within his own Land, for his recreation or pleasure without the Kings grant or license; and if he do it of his own head in a Quo warranto,7 they shall be seised into the King’s hands, as it is holden in 3 Edw. 2. Action sur le Statute Br. 48. and 30 Edw. 3. Rot. Pat. The King granted to another all the wild Swans betwixt London Bridg and Oxford.
As the second, It was argued, and strongly urged, That the Queen by her prerogative may dispense with a penal Law, when the forfeiture is popular, or given to the King, And the forfeiture given by the Statute of 3 Edw. 4. cap. 5. in case of bringing of Cards is popular, 2 Hen. 7. 6 b. 11 Hen. 7. 11 b. 13 Hen. 7. 8b. 2 R. 3. 12a. Plow. Com, Greindon’s Case, 502a, b. 6 Eliz. Dyer. 225. 13 El. 393. 18 Eliz. 352. 33 Hen. 8. Dyer 52. 11 Hen. 4. 76. 13 Edw. 3. Release 36. 43 Ass. pl. 19. 5 Edw. 3. 29. 2 Edw. 3. 6. & 7. F. N. B. 211b.
As to the first it was argued by the Defendants Counsel, and resolved by Popham Chief Justice, et per totam Curiam,8 That the said Grant to the Plaintiff of the sole making of Cards within the Realm was void; and that for two reasons.
1. The same is a Monopoly, and against the Common Law.
2. That it is against divers Acts of Parliament.
Against the Common Law, for four causes
1. All Trades, as well Mechanical, as others, which avoid idleness (the bane of the Commonwealth) and exercise men and youths in labor for the maintenance of them and their Families, and for the increase of their livings, to serve the Queen if need be were profitable for the Commonwealth; and therefore the grant to the Plaintiff to have the sole making of them is against the Common Law, and the benefit and liberty of the subject; andtherewithagreeth Fortescue in laudibus Legum Angliae, cap. 26.
And a Case was adjudged in this Court in an Action of Trespass between Davenant & Hurdis Trin. 41 Eliz. Rot. 92. where the Case was, That the Company of Merchant Taylors in London having power by charter to make Ordinances for the better rule and government of the Company, [so that they are consonant to Law and reason,] made an Ordinance, That every Brother of the same Society, who should put any cloath to be dressed by any Clothworker not being a Brother |[86 b] of the same Society, shall expose one half of his cloathes to any Brother of the same Societie, who exercised the Art of a Cloathworker, upon pain of forfeiting ten shillings, &c. and to distrein for it, &c. and it was adjudged, That the Ordinance, although it had the countenance of a Charter, was against the Common Law, because it was against the liberty of the subject; for every subject by the Law hath freedom and liberty to put his cloaths to be dressed by what Clothworker he pleaseth, and cannot be restrained to certain persons, for that in effect shall be a Monopoly; and therefore such Ordinance by color of a charter, or any grant by charter to such effect shall be void.
2. The sole Trade of any Mechanical Artifice, or any other Monopoly is not only a damage and prejudice to those who exercise the same Trade, but also to all other subjects, for the end of all these Monopolies is for the private gain of the Patentees; and although provisions and cautions be added to moderate them; yet res profecto stulta est nequitiae modus;9 it is meer folly to think that there is any measure in mischief or wickedness. And therefore there are three inseparable incidents to every Monopoly against the Commonwealth.
1. That the price of the said commodity shall be raised, for he who hath the sole selling of any commodity, may make the price as he pleaseth. And this word, Monopoly, is said, Cum unus solus aliquod genus mercaturae universum emit, pretium ad suum libitum statuens.10 And the Poet saith,
Omnia Castor emit, sic fit ut omnia vendat.11
And it appeareth by the Writ of Ad quod damnum,12 F. N. B. 222a. That every gift or grant from the King hath this Condition, either expressly or tacitely annexed to it, Illa quod patria per donationem illam magis solito non oneretur seu gravetur.13 And therefore every grant made in grievance and prejudice of the subject is void; and 13 Hen. 4. 14 b. the Kings grant which tendeth to the charge and prejudice of the subject is void.
The second incident to a Monopoly is, That after a Monopoly granted, the Commodity is not so good and merchantable as it was before; for the patentee having the sole trade, regardeth only his private, and not the publicke weale.
3. This same leadeth to the impoverishing of divers Artificers and others, who before by labor of their hands in their Art or Trade had kept themselves and their families, who now of necessity shall be constrained to live in idlenesse and beggary; vide Fortescue ubi supra.14 And the Common Law in this point agreeth with the equity of the Law of God, as appeareth in Deut. cap. xxiv. ver. 6. Non accipies loco |[87 a] pignoris inferiorem et superiorem molam, quia animam suam apposuit tibi;15 You shall not take in pledg the neathet and upper milstone, for the same is his life; by which it appeareth, That every mans Trade doth maintains his life, and therefore he ought not to be deprived or dispossessed of it, no more than of his life. And the same also agreeth with the Civil Law; Apud Justinianum monopolia non esse intromittenda, quoniam non ad commodum reipublicae sed ad labem detrimentaque pertinent. Monopolia interdixerunt leges civiles, cap. De Monopoliis lege unica. Zeno imperator statuit, ut exercentes monopolia bonis omnibus spoliarentur. Adjecit Zeno, ipsa rescripta imperialia non esse audienda, si cuiquam monopolia concedant.16
3. The Queen was deceived in her grant, for the Queen as by the preamble appears, intended the same to be for the weal publick, and it shall be imployed for the private good of the Patentee; [and for the prejudice ofthewealpublic];17 Also the Queen meant that the abuse should be taken away, which shall never be by this Patent, but rather the abuse will be encreased fort the private benefit of the Patentee, and therefore, as it is said in 21 Ed. 3. 46. in the Earl of Kent’s Case, this grant is void jure Regio.18
4. This grant is of this first impression, for no such was ever seen to pass [by letters patent]19 under the great Seal of England before this time, and therefore it is a dangerous innovation as well withoutanyorexampleaswithout authority of Law, or reason. And it was observed that this grant to the Plaintiff was made for twenty-one years, so that his Executors, Administrators, Wife, or Children, or others inexpert in the Art and Trade shall have this Monopoly. And it cannot be intended, That Edward Darcy Esquire, and Groom of the Queen’s Privy Chamber hath any skill in this Mechanical trade in making of Cards, and then it was said, That the Patent made to him was void, for to forbid others to make Cards who have the art and skill, and to give him the onely making of them who hath no skill to make them, shall make the Patent utterly void, Vide 9 Ed. 4. 5 b. And although the grant doth extend to his Deputies, and it may be said, he may appoint Deputies who shall be expert; yet if the Grantee himself be unexpert, and the grant be void as to him, he cannot make any Deputy to supply his room, quia quod per me non possum, nec per alium.20 And as to what hath been said, That Playing Cards is a vanity, It is true, if it be abused, but the making of them is no pleasure, but labour and pains. |[87 b] And it is true that none can make a Park, Chase, or Warren without the Kings licence, for that were quodam modo21 to appropriate those which are ferae naturae, et nullius in bonis22 to himself, and to restrain them of their natural liberty, which he cannot do without the Kings licence: but forhawking, hunting, &c. which are matters of pastime, pleasure, and recreation, there needeth no licence, but every one may in his own land use them at his pleasure without any restraint to be made, if not by Parliament, as appeareth by the Statutes of 11 Hen. 7. c. 17. 23 Eliz. c. 10. 3 Jac. Regis, c. 13. And it is evident by the preamble of the said Act of 3 Edw. 4. c. 4. That the bringing in of forreign Cards was forbidden at the grievous complaint of the poor Artificers Cardmakers, who were not able to live of their trades, if forreign Cards should be brought in; as appeareth by the preamble: By which it appeareth, That the said Act provides remedie for the maintenance of the trade of making Cards, for as much as the same maintain divers families by their labour and industry. And the like Act is made in 1 Hen. 3. cap. 12. And therefore it was resolved, That the Queen could not suppress the making of Cards within the Realm, no more than the making of Dice, Bowls, Balls, Hawks-hoods, Bells, Lewers, Dog-couples, and other like, which are works of labour and art, although they shall be for pleasure, recreation and pastime, and they cannot be suppressed if not by Parliament, nor a man restrained to use any trade but by Parliament. 37 Edw. 3. cap. 16. 5 Eliz. cap. 4. And the playing at Dice and Cards is not forbidden by the Common Law, as appeareth M. 8 & 9 El. Dyer 154 (If not that some be deceived by false Dice or Cards, and there he who is deceived, shall have an Action upon this Case to the deceit) and playing at Cards, Dice, &c. is not malum in se,23 for then the Queen should not suffer, nor license the same to be done. And where King Edward the third in the 39 year of his reign commandeth the exercise of shooting and artillery, and forbiddeth the exercise of casting of stones and barres, and the hand and foot-balles, cock-fighting, & alios ludos vanos,24 as appeareth in dors’ claus’ de an. 39 Edw. 3. nu. 23. yet no effect thereof followed, till divers of them were forbidden upon a penalty by divers Acts of Parliament, viz. 12 Ric. 2. cap. 6. 11 Hen. 4. cap. 4. 17 Edw. 4. cap. 3. 33 Hen. 8. cap. 9.
Also such charter of a Monopolie, against the freedom of Trade and Traffick, is against divers Acts of Parliament, scil. 9 Ed.3. c.1&2. Which for the advancement of the freedom of |[88 a] Trade and Traffick extendeth to all vendible things, notwithstanding any charter of franchise granted to the contrary, or usage, or custom, or judgment given thereupon; which charters are adjudged by the same Parliament to be of no force, or effect, and made at the request of Prelates, Barons, and Grandees of the Realm, to the oppression of the Commons. And by the Statute of 25 Ed. 3. cap. 2. It is Enacted, that the Act of 9 E. 3. shall be kept, Holden, and maintained in all points. And it is further thereby enacted, That if any Statute, Charter, Letters Pattents, Proclamation, Command, Usage, Allowance, or judgment be made to the contrary, that the same be utterly void, vide Magna Charta cap. 18. 27 Edw. 3. cap. 11, &c.
As to the second question, It was resolved, That the dispensation or licence to have the sole importation and merchandizing of goods (without any limitation or stint) nothstanding the said Act of 3 Edw. 4. is utterly against Law: For it is true, That for as much as an Act of Parliament which generally forbiddeth a thing upon penalty which is popular, or onely given to the King, may be inconvenient to divers particular persons, in respect of person, place, time, &c. And for this cause the Law hath given power to the King, to dispense with particular persons; Dispensatio mali prohibiti est de jure Domino Regi concessa, propter impossibilitat’ praeviden’ de omnibus particular’, et dispensatio est mali prohib’ provida relaxatio, utilitate seu necessitate pensata.25 But when the wisdom of the Parliament hath made an Act to restrain pro bono publico26 the bringing in of many foreign manufactures, to the intent that the subjects of the Realm might apply themselves to the making of the said manufactures, &c. And thereby maintain themselves and their family with their handy labor. Now for a private gain to grant the sole importation of them to one, or divers (without any limitation) notwithstanding the said Act is a Monopoly against the common law, and against the end and scope of the same Act; for the same is not to maintain and encrease the labors of the poor Cardmakers within the realm, at whose petition the Act was made, but utterly to take away and overthrow their trade and labours, and that without any reason of necessity, or inconveniency in respect, place or time, and so much the rather because it was granted in reversion for years, as hath been said, but onely for the benefit of a private man, his Executors and Administrators for his particular commodity, and in prejudice of the Commonwealth. And King Edward the third by his Letters Patents, granted to one John Peche the sole importation of Sweet-wine into London, |[88 b] and at a Parliament holden 50 Edw. 3. this grant was adjudged void, as appeareth in Rot. Parl. an. 50 Edw. 3. Mich. 33. Also admit that such grant or dispensation were good, yet the plaintiff cannot maintain an Action upon the Case against those who bring in any forreign Cards, but the remedie which the Act of 3 Edw. 4. in such Case giveth ought to be pursued. And judgment was given and entered, quod querens nihil caperet per billam.27
And note, Reader, and well observe the glorious preamble and pretence of this odious monopoly. And it is true quod privilegia quae re vera sunt in praejudicium reipublicae, magis tamen speciosa habent frontispicia, et boni publici praetextum, quam bonae et legales concessiones, sed praetextu liciti non debet admitti illicitum.28 And our lord the King that now is in a Book which he in zeal to the Law and Justice commanded to be printed Anno 1610. intituled A Declaration of his Majesties pleasure, &c. p. 13. hath published, That Monopolies are things against the Lawes of this Realm, and therefore expressly commands that No Suitor presume to move him to grant any of them.
[1. ][Ed.: Against the form of the aforesaid letters patent and in contempt of the said lady queen,]
[2. ][Ed.: That every person of that society has been used and accustomed to buy, sell, and trade freely all merchantable property within this realm of England from whatsoever person or persons, etc.]
[3. ][Ed.: a citizen and free man of the city and of that society.]
[4. ][Ed.: in those things that are granted by the Common Law to everyone, the custom of any region or place is not to be alleged.]
[5. ][Ed.: Parent of the country, and the family head of the whole realm,]
[6. ][Ed.: Chief Justice of England.]
[7. ][Ed.: Writ to enforce limits on a Royal charter.]
[8. ][Ed.: and by the whole court,]
[9. ][Ed.: it is indeed a useless thing to moderate wickedness;]
[10. ][Ed.: [Monopoly is said], when one single person buys the whole of any kind of merchandise and sets the price at his pleasure.]
[11. ][Ed.: Castor buys everything, so that he may sell everything.]
[12. ][Ed.: Writ directing the sheriff to determine what damage there would be if a Royal charter such as for a fair is granted.]
[13. ][Ed.: that the country should not be more burdened or vexed by that donation than is usual.]
[14. ][Ed.: in the above passage.]
[15. ][Ed.: Do not take the lower and the upper millstone as a pledge, because that would take his life; [Deut., xxiv. 6].]
[16. ][Ed.: For we read in Justinian that monopolies are not to be meddled with, because they do not conduce to the benefit of the common weal but to its ruin and damage. The civil Laws forbid monopolies: in the chapter of monopolies, one and the same Law. The Emperor Zeno ordained that those practising monopolies should be deprived of all their goods. Zeno added that even imperial rescripts were not to be accepted if they granted monopolies to anyone.]
[17. ][Ed.: Bracketted text omitted in the 1658 edition.]
[18. ][Ed.: by royal right.]
[19. ][Ed.: Bracketted text omitted in the 1658 edition.]
[20. ][Ed.: because what I cannot do by myself I cannot do through someone else.]
[21. ][Ed.: in a certain manner.]
[22. ][Ed.: of a wild nature, and no one’s property.]
[23. ][Ed.: wrong in itself,]
[24. ][Ed.: and other useless games,]
[25. ][Ed.: Dispensing with things that are wrong by prohibition (i.e. legislation) is rightfully granted to the king, on account of the impossibility of providing for every particular Case; and a dispensation is a release of the prohibited wrong, or a measure of necessity.]
[26. ][Ed.: for the public good.]
[27. ][Ed.: that the plaintiff take nothing by his bill.]
[28. ][Ed.: that privileges which in truth are to the prejudice of the common weal nevertheless have more specious frontispieces and pretext of public good than good and lawful grants; but an unlawful thing ought not to be admitted under the pretext of being lawful.]