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.
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.