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Lord Kames argued that neither the King nor Parliament had the right to grant monopolies because they harmed the interests of the people (1778)

The Scottish judge Lord Kames (1696-1782) thought that the Courts should step in to ban grants of monopoly issued by the King as well as by Parliament because they benefited a few and caused harm to the people:

Regulations that encroach on freedom of commerce, by favouring some to the prejudice of others, is what renders a monopoly odious in the sight of law. However beneficial a monopoly may be to the privileged, it is a wrong done to the rest of the people, by prohibiting them arbitrarily from the exercise of a lawful employment. Monopolies therefore ought to be discountenanced by courts of justice, not excepting those granted by the crown. And I am persuaded, that the monopolies granted by the crown last century, which were not few in number, would have been rejected by our judges, had their salaries been for life, as they now happily are. I venture a bolder step, which is to maintain, that even the parliament itself cannot legally make such a partial distinction among the subjects.

CHAPTER III: Regulations of commerce, and of other public concerns, rectified where wrong.

It belongs to a court of police to regulate commerce and other public matters. The court of session is not a court of police; but it is a court of review, to take under consideration the proceedings of courts of police, and to rectify such as are against the public interest. This jurisdiction is inherent in the court of session as the supreme court in civil matters, founded on the great principle, That every wrong must have a remedy.⚓✪

In the year 1703 the magistrates and town-council of Stirling made an act confirming a former act of council in favour of the town weavers, and prohibiting all country weavers from buying woollen or linen yarn brought to the town for sale, except in public market after eleven fore-noon, under the pain of confiscation. This act of council was not a little partial: the weavers in the neighbourhood were confined to the market, while the town weavers were left at liberty to make their purchases at large. The former brought a process before the court of session, insisting to have the market at an earlier hour, in order that they might not be prevented by the latter from purchasing; and also, that the prohibition of purchasing yarn privately should be made general to comprehend the town weavers as well as those of the country. The court not only appointed an earlier hour for the market; but put both parties upon an equal footing, by prohibiting yarn to be purchased before the opening of the market.

Regulations that encroach on freedom of commerce, by favouring some to the prejudice of others, is what renders a monopoly odious in the sight of law. However beneficial a monopoly may be to the privileged, it is a wrong done to the rest of the people, by prohibiting them arbitrarily from the exercise of a lawful employment. Monopolies therefore ought to be discountenanced by courts of justice, not excepting those granted by the crown. And I am persuaded, that the monopolies granted by the crown last century, which were not few in number, would have been rejected by our judges, had their salaries been for life, as they now happily are. I venture a bolder step, which is to maintain, that even the parliament itself cannot legally make such a partial distinction among the subjects. My reason is, that admitting the House of Commons to have the powers of a Roman dictator ne quid respublica detrimenti capiat (that no harm comes to the republic), it follows not that such a trust will include a power to do injustice, or to oppress the many for the benefit of a few. How crude must have been our notions of government in the last century, when monopolies granted by the King’s sole authority, were generally thought effectual to bind the whole nation! I am acquainted with no monopolies that may be lawfully granted but what are for the public good, such as, to the authors of new books and new machines, limited to a time certain. The profit made in that period is a spur to invention: people are not hurt by such a monopoly, being deprived of no privilege enjoyed by them before the monopoly took place; and after expiry of the time limited, all are benefited without distinction.

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Lord Kames is an interesting example of how deeply Adam Smith’s arguments concerning free trade had penetrated the government in Scotland in the last quarter of the 18th century. Here we have the leading judge in Scotland arguing in a book about Equity that an independent judiciary should step in to ban both the Crown and the Parliament from granting monopolies and other economic privileges to favoured individuals or groups because they harmed the interests of the people. Kames denounced protection and monopolies as “odious in the sight of law” and that Parliament had no right under law to “to oppress the many for the benefit of a few”. If the parliament refused to recognized its duty to protect the people from harm then the courts had to step in order to defend the interests of the people. Kames denounces the practice of granting political privileges to some groups as a “crude” notion of government which may have been accepted in the previous century but which was no long tolerable in the new.

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