Popular Law-making
by Frederic Jesup Stimson
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Going on with the statutes, the next thing we will note is a matter that concerns the personal relations. It shows again how eagerly our English common law overruled the church law, the canon law. Although the church under the pope always pretended that it alone had authority to regulate relations between the sexes, marriage and divorce, we found Henry I interfering with the priests themselves, and we now find as early as 1235, a secular statute which extends the interference of the secular law over the relations between parent and child; that is, as to when a child should be legitimate and when not. We shall have a great deal to say later about marriage and divorce laws, particularly divorce laws as they exist in this country and as they apparently are going to be. As early as 1235 the secular courts interfered with the marriage relation; and the importance of that is here: there is one great school to-day, including largely clergymen and the divorce reformers, so-called, who hold substantially that marriage is a sacrament, or at least a status; that the secular law has nothing to do with it and should not be allowed to grant a divorce except for canonical causes, i.e., causes recognized by the church; that it is not like any other contract, which can be set aside with mutual consent; when a marriage takes place, they say, it is a sacrament, or, at least, a status ensues which cannot in future be altered. Consequently, it is not like a contract; for all contracts can be abrogated by mutual consent. On the other hand, the most radical people go to the other extreme, and say that marriage is like any other contract; it is purely a civil contract, not a sacrament, not a status; just like any other, and some of them go to what is the logical conclusion of that position and say that therefore marriage, like any other contract, ought to be ended at any time by the consent of both parties. The extreme radical view leads to the conclusion that a man and woman ought to be divorced any time by merely saying that they want to be; and some States have almost got to this position in their statutes. This may seem a very far cry from this early statute, which does not directly concern marriage but the status of children; nevertheless it has this bearing—it is an interference by Parliament, by the secular, legislative branch of government, with a relation which the church believed to belong only to the church. It so happens that in this instance the secular law instead of being liberal and kindly was extremely cruel and the reverse of liberal. Under the church law, when a man married a woman by whom he already had children, all those children were thereby made legitimate, and that certainly seems the kindly and the Christian law. But the secular barons who constituted the Parliament, in their jealousy for the common law, took the harsher view, that any children born of parents who are not married at the time they are born shall be illegitimate, although their parents may marry afterward. Beaumont and Fletcher, in one of their plays, make a punning reference to that. It seems to have struck Beaumont and Fletcher as it does us, that it was a cruel law for the Parliament to make; when the church for once was liberal, it was queer that the Parliament should be illiberal; so Beaumont and Fletcher, in one of their plays, say: "The children thou shalt get by this civilian cannot inherit by the law." This is interesting, because they use all the words I have been trying to define; when they say "the children thou shalt get by this civilian," they mean by this civilian a person who is under the civil, or Roman, or church law; that is, they mean to say, although you marry a woman who is a church member and under the jurisdiction of the bishop, etc., nevertheless the church law won't help you; your children by her cannot inherit by the law, and the law as used by Beaumont and Fletcher and as used by me and as used in English books means the common law, the common secular law, the law of England, not the civil or canon law.[1] Beaumont and Fletcher evidently thought it was a very illiberal statute; and our modern American States have all come to Beaumont and Fletcher's conclusion; they have universally reversed the old English statute and gone back to the church law, so that throughout the United States to-day a child born before the marriage of its parents is legitimate if its parents afterward marry. That is true, no matter how late it is; if the man marries her even on his death-bed, all his children are legitimized.

[Footnote 1: "And so all the earls and barons answered with one voice, that they would not change the laws of England."]

In the same Statute of Merton there is a sentence against usury, "no usury permitted against minors"; and there are two things to note here. One is, that the secular legislature is also taking jurisdiction of minors, who were claimed at that time to be solely under the jurisdiction of the church; and the other is the reference to usury. Mind you, usury is interest. It didn't mean excessive interest, as it does now. As you probably know, the notion prevailed in the early Middle Ages that all usury—interest—was a sin and wrong; and even Ruskin has chapter after chapter arguing that principle, that it is wrong to take interest for money. I should perhaps add another reason why interest was so disliked in early England: There was very little money in early England; and it mostly belonged to the Jews. It was a good deal as it is in Russia to-day; the Jews were persecuted in Russia as in early England, because, in the country districts of Russia, the Jews have all the money, and money-lenders are always unpopular. So in early England. The great barons had their land and their cattle and crops, but they had little money. When they wanted money they got the value of it out of their tenants. Nobody carried large sums of money around with him then, any more than a woman does to-day—she relies on her husband or father; they went to the nearest Jew. When the king wanted cash, he also extorted it from the Jews. One of the early Henrys said seriously, that he regarded the Jews as a very convenient sponge! That is, they sucked all the money in the kingdom and got it into a place whence he could easily get it out. But it made the Jews very unpopular with the masses of the people and with the Parliament; hence, their great dislike of usury. I doubt very much if they would have cared much about usury if one gentleman had been in the habit of loaning money to another; but all the money came from the Jews, who were very unpopular; and the statutes against usury were really made against them, and that is why it was so easy to pass them—they based it, doubtless, on the references to usury in the Bible. Thus they got the notion that it was wrong to charge interest, or at least extortionate interest; more than a certain definite per cent.; and this is the origin of all our interest and usury statutes to-day. Although most economists will tell you that it is ridiculous to have any limit on the rate of interest, that the loan of money may well be worth only four per cent. to one man and twenty-five to another, and that the best way for everybody would be to leave it alone; nevertheless, nearly all our States have usury laws. We shall discuss that later; but here is the first statute on the subject, and it really arose because of the feeling against the Jews. To show how strong that prejudice was, there was another statute passed in the interest of liberality to protect the Jews—a statute which provided liberally that you must not take from a Jew "more than one-half his substance." And a very early commentator tells us of a Jew who fell into a privy on a Friday, but refused to be helped out on Saturday because it was his Sunday; and on Sunday he besought the Earl of Gloucester to pull him out, but the Earl of Gloucester refused because it was his Sunday; so the Jew remained there until Monday morning, when he was found dead. There is no prejudice against Hebrews to-day anywhere in Europe stronger than existed even in England for the first three or four centuries after the Norman Conquest; and had it not been for the protection given them by the crown, probably they would have been exterminated or starved out, and in 1289 they were all banished to the number of 16,160, and their movables seized.

In 1264 citizens of towns were first represented in the Parliament (in the Great Council, that is, for the word parliament is not yet used), originally only composed of the great barons, who were the only land-owners. The notion of there being freemen in towns was slowly established, but it was fully recognized by 1264, and in that year citizens of towns first appeared in the Council. To-day, under the various Reform Acts, tenants or even lodgers in towns are just as much represented as the land-owners; but the reform which began in 1264 took six hundred years to be thoroughly established.

And now we find the first statutory origin of that utterly fallacious principle—although alive to-day—that the state, in a free country, a legislature-governed country, has the right, when expedient, to fix the price of anything, wages or other commodities; fallacious, I say, except possibly as to the charges of corporations, which are given special privileges by the government; the principle, which prevailed throughout the Middle Ages, of fixing the prices of all things. In this case the price was on bread; but you find now for many centuries an attempt to fix the price of almost everything; and of labor, too, what wages a man should be paid. It lasted persistently for centuries and centuries, and it was only under the influence of modern political economy, Adam Smith and other quite modern writers, that the principle that it was possible to fix prices of commodities was utterly eradicated from the English mind. And you hardly got it out of England before it reappeared in the United States. It is not a new-fangled principle. You find the newspapers commonly talk about fixing prices by law as if it were something utterly unheard of and utterly new. It is not so. It Is on the contrary as old as almost any legislation we have, and you can make no argument against it on that ground. It has always been the custom of our ancestors to regulate the prices of wages by law, and the notion that it was either unconstitutional or inexpedient dates from a very few years back; yet all such attempts at legislation have utterly disappeared from any modern statute-book. In no State of our forty-six States is any one so unintelligent, even in introducing bills in the legislature, as to-day to propose that the price of a ton of coal or a loaf of bread shall be so much. Nor is any modern legislature so unintelligent or so oppressive as to propose sumptuary laws; that is, to prescribe how expensively a man or woman must dress; but in the mediaeval times those were thought very important. Every class in England was then required by law to have exactly so many coats, to spend so much money on their dress, so much on their wives' dress, and certain men could have fine cloth and others coarse cloth; everything was graded, even to the number of buttons on clothes, and they went so far even as to try in some early legislation to say what men should have to eat; the number of courses a man should have for his dinner were prescribed by law at one time in England, varying according to the man's rank. All such legislation has absolutely vanished and probably no one need know that it existed—but that when efforts are made, as they sometimes are, by our more or less uneducated members of legislatures to introduce bills of such a kind, it is very important for us to know that those experiments have been tried and have failed, having proved to be either impracticable or oppressive or not for the general benefit. This is the importance of these early laws, even when obsolete; because we never know when some agitator may not pop up with some new proposal—something he thinks new—which he thinks, if adopted, will revolutionize society. If you can show him that his new discovery is not only not new, but was tried, and tried in vain, during two or three centuries in the life of our own ancestors, until an enraged public abolished it, it will destroy any effect that he is likely to make upon the average legislature.

The first general example of an English law fixing the price of a commodity is in 1266, the Assize of Bread and Beer. That fixed the price of bread according to the cost of wheat, a sliding scale, in other words; when a bushel of wheat cost so much, a loaf weighing a certain amount must cost so much, etc. But you must not confound that with the modern law that still exists in England, and in some States and cities here, merely regulating the size of a loaf. That is perfectly proper, reasonable legislation, done merely for the purpose of protecting the public and preventing fraud. In England, for instance, there is a certain standard loaf known as a quartern loaf, and in order to prevent poor people being cheated it is prescribed by city ordinance that the quartern loaf shall weigh so much, shall contain so many ounces of flour. We do have similar laws saying how much a bushel of potatoes shall weigh, how much a barrel of flour shall weigh. That isn't fixing the price; it is only fixing a uniform size so that the public may not be cheated in its dealings, and one must not take such a law as justifying the fixing of prices.

In the year 1266 I find the first statute in the French language, Norman French; before that they were all in Latin; and they lasted in French for some four or five hundred years, and then they were put in English. The Statute of Marlborough, 1267, is a very important one historically, but it does not concern us, because it mainly had to do with the ownership of land, the tenure of land in England, an extremely important subject, but one that is obsolete here. Then we have something about the trial of clerks for murder. Of course the word clerk there means not what we mean by a clerk, but a person who could read and write; and nothing more than that. It originally meant persons in holy orders, who were called clerks (clerics), but there got to be clerks who were not in holy orders. Originally only priests could read and write. No one else knew how, except possibly great personages like kings, and consequently it was the same thing whether, when you said a clerk, you meant a person who could read and write or a priest. But when there got to be people who could read and write and who were not priests, it became an important distinction. There was a privilege in England known as the "benefit of the clergy"; if any clerk was tried for a criminal offence, no matter what, all he had to do was to state that he was a priest and he was at once set free. In other words, he could not be punished. That doesn't concern us; but, I suppose, it resulted from the old notion that all priests were subject only to Rome, and to the church courts, and not to the civil law courts; and consequently when a priest was attempted to be tried in a civil law court, it was a way of doing what we should call "pleading to the jurisdiction" of the court. Later, as time went on, in England it was greatly abused, especially when there got to be clerks who were not priests. When it meant anybody who could read and write, and anybody who had committed a murder had only to say, "I can read and write," and be set free, it led to an extraordinary state of things. So, from time to time, they modified the benefit of the clergy, until ultimately it was abolished entirely; first by not allowing it in high offences like murder; then by imposing certain slight punishment—they were "burned in the hand"; then by applying it only to the first offence, and so on, until they got rid of it entirely; and this Statute of Marlborough is simply one of the first of that long chain of statutes which finally did away with it and prevented people from getting rid of a criminal prosecution merely because they knew how to read and write or were priests.

In 1275 I note the first use of the word parliament. I have used it from the beginning, but it is important to remember that the thing was not called parliament until 1275. Before that it was called the Great Council or the King's Council, and in Saxon times the Witenagemot.

Then we come down to the Statute of Westminster I. That is considered a great landmark in statutory legislation mainly because it is the first attempt to establish a code, or, at least, a large collection of the laws of England. It is an attempt to put what they supposed to be a good part of them into writing. We have no codes in this country, as a rule; nor to-day in England; the ordinary Anglo-Saxon does not believe in codes. It is the French and Germans who have codes. Nevertheless, you often find collections of statutes. It is important not to confound these things with codes, because they never pretend to be complete. Many States in this country never make revision of the statutes. Nevertheless, every ten or twenty years they will print a collection of the statutes arranged alphabetically. In some States, as in Massachusetts, those collections are official; but in other States they are simply matters of private enterprise. They are of no authority, and if they are wrong it is no protection to you. You are bound to know the laws. These early so-called codes, especially this code of Edward I, although it caused him to be called the English Justinian, because it was the first attempt of putting any large body of the Anglo-Saxon laws in writing at all, are still not at all codes in the technical sense. This one was merely a collection of a certain number of laws reduced to writing and re-enacted by Edward I. We note here the phrase "common right shall be done to rich and poor," rather an interesting landmark; it shows what progress was being made by the people in establishing their rights as freemen and to equal laws. For the laws of Norman England mainly applied to land-owners, and were made by the barons, the only people that had property; there was but a small class in those early days between the land-owners and actual serfs, villeins, who were practically attached to the soil, in a condition almost of servitude; they did service, were not paid wages, and couldn't leave the place where they were born—and both these are tests of slavery. But in the first two centuries after the Conquest the number of freemen very rapidly increased; men who were not property owners, not land-owners, but still freemen. Especially it increased in the towns, for the towns very early established their right to be free, far earlier than the country. It was very early established that the citizens of any town, that is, the members of the guild of the town, duly admitted to the guild, were freemen, and probably before this statute. But this is interesting as a recognition of the fact that there were free poor people—people without property, who nevertheless were neither villeins nor serfs—and that they were entitled to equality before the law, just as we are to-day, as early as 1275. Otherwise, the Statute of Westminster concerns mainly the criminal law. There is one very important provision—because it has been historically followed from then down to now—that there shall be no disturbance of the elections. Elections shall be free and unimpeded, uncontrolled by any power, either by the crown, or Parliament, or any trespasser. That has been a great principle of English freedom ever since, and passed into our unwritten constitution over here, and of course has been re-enacted in many of our laws. That is the feeling which lay behind those statutes which we enacted after our slaves were freed, for the making of elections free in the South; for protecting negroes in the act of voting and preventing interference with them by the Ku Klux Klan. The Democratic party strongly objected and objects still to such legislation on the part of the government, on the ground that the right of regulating elections belongs to the States and not to the Federal government; which, constitutionally speaking, before the Fifteenth Amendment at least, was true. They do not, of course, deny this great old English principle that elections must be free and must not be intimidated or controlled by anybody; but, they say, we left the machinery of the elections in the hands of the States when we adopted the Federal Constitution; and although at our State elections some of the officers elected are Federal officers—as, for instance, the President of the United States, or rather the presidential electors, and members of Congress—nevertheless, when we adopted the Federal Constitution, the founders chose to rely for the machinery of a fair and free election upon the officers of States; so that the Federal government has nothing to do with it, and has no business to send Federal troops to the South; and they called such bills the "force" bill. In theory, of course, those elections were controlled in these bills just as much in the North as in the South; but there being practically no complaint in the North that the negroes were not allowed to vote, as a matter of fact the strength of the Federal government was only invoked in the Southern States.

"Fines are to be reasonable." You find that principle in all our constitutions to-day in the clause that there shall be no cruel or unusual punishments, and that fines shall be proportionate to the offence; this principle is expressed also in Magna Charta.

Then slander and rape were made criminal at common law; before this only the church took jurisdiction. Slander Is the imputing of crime to a person by speech, by word of mouth. If it be a written imputation, it is libel and not slander. Then in this statute also we find the first import tax upon wool. The constitutionality of revenue taxes, duties, or taxes on imports, was once disputed by our parties; one party denying the constitutional right to impose any tax upon imports except for the strict purpose of raising necessary revenue; the argument being perfectly logical and based upon the constitutional principle we already have had that all taxation must be for the common benefit. Democrats argued that if a tax upon imports was imposed to raise the necessary revenue, that is for the common benefit; but if it was imposed, as it avowedly is imposed in Republican legislation, for the purpose of benefiting certain industries or classes, why that, of course, is not for the common or general benefit and therefore unconstitutional. The trouble with this position is that early English laws were prohibitive of imports—that is, they were imposed for prohibition before they allowed importation on payment of duties. This Statute of Westminster is a landmark, as showing how slow the Commons were in even allowing taxation upon imports at all. They earlier allowed the ordinary direct taxes. All that the Norman kings got they got with the consent of Parliament, direct taxes, for the common benefit; but they struggled for two centuries before they got the permission of Parliament to impose duties, taxes upon imports; here first they finally got it on wool, the thing produced of most value of anything in England; and consequently an important protective duty. It is a curious historical fact that this article, wool, seems to be the chief bone of contention ever since; in our tariffs nothing has been more bitter than the dispute on wool; the duty on wool is the shibboleth of the extreme protectionist.[1] Ohio, which is the home of the strong protection feeling, regards the duty on wool as the corner-stone to the whole fabric. It is argued that "a cheap coat makes a cheap man." In the East the feeling is that the duty on wool makes clothing poor and shoddy, and the prices excessively high for the poor. It is odd to find that the very first thing that did make trouble was the duty on wool, and it is still making the same trouble to-day.

[Footnote 1: The "ancient" customs were on wool, woolfels and leather; all other were "evil" customs. Holt, afterward C.J., in "The Great Case of Monopolies."]

There is another interesting clause in this statute; I don't know whether in this country so much as there, but it is in England the almost universal custom of ships to have a dog or cat on board. You never will find a coasting vessel without a dog or cat, usually both; and I believe it is for this strange historical reason, as shown in this Statute of Westminster I: In those days all wrecks belonged to the king. (Pretty much everything, in fact, did belong to the king, except the land that was held by book or charter, or such personal property as a man had in his own house—all mines, all franchises, all monopolies, even all whales and sturgeons that were thrown up on the beach—the head to the king and the tail to the queen.) So all wrecks belonged to the king. The result was, that whenever any vessel went ashore the king's officers seized it; and naturally the owner of the vessel didn't like that, because it very often happened that the vessel was perfectly good and could be easily repaired and the cargo saved. It is still a great principle in marine law that if one-half of the cargo is good, the man who owns the vessel cannot surrender and claim from the insurance company as a total loss; it is important still how much of a wreck a wreck is. But in those days the king, even if the vessel was stranded and could be raised, would seize it on the plea it was a wreck. The man who owned the ship would say she is perfectly seaworthy; and then would come the dispute as to what a wreck was. Or even when the vessel was destroyed, a great part of the cargo might be saved, and the owner of the vessel thought it very unjust that the king should claim it all. So the Parliament of England established as part of the liberties of the English merchant or trader that he should still have a property in his wreck; and then the question came up as to what was a wreck. It was generally admitted that when all hands were lost, that was a wreck; but they wanted to get as narrow a definition as they could, so they got Parliament to establish this law, that in future nothing shall be considered a wreck out of which a cat or a dog escapes alive; and from that time until the present day no vessel coasts about England without carrying a cat or dog.

But the great achievements of legislation up to 1300 remain the re-establishment of English law, as shown in the great charters of John, Henry III, and the confirmation of Edward I. And Magna Charta had to be read once a year (like our Declaration of Independence), and for breach of it a king might be excommunicated; and Henry III himself, according to Cobbet, feared that the Archbishop of Canterbury was about to do so.



(1275) Far the most important phrase to us found in the Statute of Westminster I, save perhaps that common right should be done to rich and poor, is to be found in this sentence: "Excessive toll, contrary to the common custom of the realm," is forbidden. The statute applies only to market towns, but the principle established there would naturally go elsewhere, and indeed most towns where there was any trade were, in those days, market towns. Every word is noticeable: "Excessive toll"—extortion in rates. As this statute passed into the common law of England and hence our own, it has probably always been law in America except, possibly, in those few States which expressly repealed the whole common law[1] and those where civil law prevailed.[2] It was therefore equally unnecessary to adopt new statutes providing against extortion or discrimination, for the last part of the phrase "contrary to the common custom of the realm" means discrimination. But this is one of the numerous cases where our legislatures, if not our bar and bench, erred through simple historical ignorance. They had forgotten this law, or, more charitably, they may have thought it necessary to remind the people of it. There has been a recent agitation in this country with the object of compelling great public-service companies, such as electric lighting or gas companies, to make the same rates to consumers, large or small. This also was very possibly the common law, and required no new statutes; there are cases reported as far back as the fourteenth and fifteenth centuries where, for instance, a ferryman was punished for charging less for the ferriage of a large drove of sheep or cattle than for a smaller number, "contrary to the common custom of the realm." Nine years before this statute is the Assize of Bread and Beer, attempting to fix the price of bread according to the cost of wheat, but notable to us as containing both the first pure-food statute and the first statute against "forestalling."

[Footnote 1: Florida, Texas, and the old Territory of Dakota.]

[Footnote 2: Louisiana, New Mexico, and Arizona.]

Now forestalling, regrating, and engrossing are the early English phrases for most of the unlawful or unmoral actions which we ascribe to the modern trust. In fact, there is hardly one legal injury which a trust is said to commit in these days which cannot be ranked under those three heads, or that of monopoly or that of restraint of trade.

"Forestalling" is the buying up provisions on the way to a market with intent to sell at a higher price; and the doctrine applied primarily to provisions, that is to say, necessaries of life. Precisely the same thing exists to-day, only we term it the buying of futures, or the attempt to create a corner. We shall find that the buying of futures, that is to say, of crops not yet grown or outputs not yet created, is still obnoxious to many of our legislatures to-day, and has been forbidden, or made criminal, in many States. "Regrating" is defined in some of the early dictionaries as speculating in provisions; the offence of buying provisions at a market for the purpose of reselling them within four miles of the place. The careful regulation of markets and market towns that existed in early times in England would not suffer some rich capitalist to go in and buy all that was offered for sale with intent of selling it to the same neighborhood at a higher price. Bishop Hatto of the Rhine, you may remember, paid with his life for this offence. The prejudice against this sort of thing has by no means ended to-day. We have legislation against speculation in theatre tickets, as well as in cotton or grain. "Engrossing" is really the result of a successful forestalling, with or without regrating; that is to say, it is a complete "corner of the market"; from it our word "grocer" is derived. Such corners, if completely successful, would have the public at their mercy; luckily they rarely are; the difficulty, in fact, begins when you begin to regrate. But in artificial commodities it is easier; so in the Northern Pacific corner, a nearly perfect engrossing; the shares of stock went to a thousand dollars, and might have gone higher but for the voluntary interference of great financiers. Leiter's Chicago corner in wheat, Sully's corner in cotton, were almost perfect examples of engrossing, but failed when the regrating began. All these tend to monopoly, and act, of course, in restraint of trade; the broader meanings of these two latter more important principles we leave for later discussion.

(1285) The Statute of Bakers, or Assize of Bread and Ale, is by some assigned to the 13th of Edward I. If so, we find all these great modern questions treated by statute in the reign of the same great law-making king, Edward I, who well was called the "English Justinian"; for, in 1305, twenty years later, we have the first Statute of Conspiracy. This statute only applies to the maintaining of lawsuits; but the Statute of Laborers of 1360 declares void all alliances and covins between masons, carpenters, and guilds, chapters and ordinances; and from this time on the statutes recognize the English common law of conspiracy in general words.

As this is one of the most important doctrines of the English law, and moreover one which is most criticised to-day by large interests, both of capital and labor, it will be wise to dwell upon its historical and logical origin in this place, though we shall consider it at length later as it touches various fields of legislation. It is notable for two most important principles: first, that it recognizes the great menace of combined action, and both forbids and punishes combinations to do an act which might be lawful for the individual; second, of all branches of civil, as distinct from criminal, law, it is the one which most largely recognizes intent; that is to say, the ethical purposes of the combination. It has been urged in some judicial opinions that in matters of boycotts, strikes, etc., the law cannot go into the motive; this argument obviously proves too much, for it is no more easy to examine motives in the criminal law, and this is done all the time. A homicide, for instance, will vary in all degrees between justifiable guilt or manslaughter up to murder in the first degree, according to the motive which prompted the act. It is really no more difficult, and the reported cases do not show it to be any more difficult, to consider the motive behind a combination of men or the motive inspiring a series of related acts. The real trouble comes only in the Federal anti-trust act, because the machinery of this clumsy statute, a bill in equity, imposes upon judges the duty of finding the facts.

This doctrine of conspiracy is so old in England that I am unable to trace it to its source. From the wording of repeated early statutes it would seem that they recognized this law of conspiracy as already existing and merely applied it to new forms, such as, for instance, the combination of masons, carpenters, and guilds, just mentioned. It is, perhaps, not to us important whether it is originally based on common law or these early statutes, for these statutes are quite early enough to have passed into the common law of England, and consequently into the common law in this country. Moreover, early statutes merely express the common law; therein lies their significance. Now, many State laws and constitutions, as well as most State courts, recognize that the common-law statutes of England existing at least before 1775, if not 1620,[1] are common law in the States of this Union. In a general way, any statute that antedates the time of our settlement we took over as part of our common law.

[Footnote 1: 1607 (Virginia, West Virginia, Illinois, Indiana, Missouri, Arkansas, Colorado, Wyoming); 1776 (Florida, Maryland, Rhode Island, Pennsylvania). None, however, are law in New York.]

We are now coming also to that great range of statutes, which, on the one hand, control labor and regulate the rights of the laborer, both in his prices and in his hours; and, on the other, those statutes relating to what we call "trusts," conspiracy, and trades-unions, which have made common-law principles which are to-day, all of them, invoked by our courts; and form the precedents of practically all our modern legislation on matters affecting labor, labor disputes, injunctions, strikes, boycotts, blacklists, restraint of trade, and trusts—in fact, the largest field of discussion now before the mind of the American people. The subjects are more or less connected. That is, you have the growth of legislation as to laborers on the one hand, and on the other you have the growth of this legislation as to combinations or conspiracies, trades-unions, guilds, etc.

(1304) Now let us begin at that first statute of conspiracy, and find what the definition of a conspiracy is; because it is a very important question to-day, whether we are going to stick to the old common-law idea or not. The very title of this statute is "A definition of conspirators," and it begins: "Conspirators be they that do confeder or bind themselves together by oath, covenant or other alliance" either to indict or maintain lawsuits; "and such as retain men in the Countrie with Liveries or Fees for to maintain their malicious Enterprises, and this extends as well to the Takers as to the Givers." And as it gradually assumed shape and got definite and broad, the idea, we will say, by 1765, when Blackstone wrote, was this: A conspiracy is a combination by two or more men, persons or companies, to bring about, either an unlawful result by means lawful or unlawful, or a lawful result by unlawful means. Now so far the definition is admitted. Everybody agrees, both the labor leaders and the courts, on that definition—that when two or more people combine together to effect an unlawful object, it is a conspiracy; which is both a criminal offence under the laws of the land everywhere, and also gives the party injured a right to damages, that is, what we call a civil suit; and furthermore no act is necessary. There is no doubt about that part of the definition. Or where they combine to get a lawful end by unlawful means, as, for instance, when laborers combine to get their employer to raise their wages by the process of knocking on the head all men that come to take their places, that is gaining a lawful end by unlawful means, by intimidation—and is a conspiracy. But now the whole doctrine in discussion comes in: If you have a combination to bring about by lawful means the injury of a third person in his lawful rights—not amounting to crime—is that an unlawful conspiracy? Yes—for it is a "malicious enterprise." So is our law, and the common law of England, yes. And you can easily see the common-sense of it. The danger to any individual is so tremendous if he is to be conspired against by thousands, hundreds of thousands, not by one neighbor, but by all the people of the town, that it early got established as a principle of the common law, and of these early English statutes, that, although one man alone might do an act which, otherwise lawful, was to the injury of a third person, and be neither restrained nor punished for it, he could not combine with others for that purpose by the very same acts. For instance, I don't like the butcher with whom I have been doing business; I take away my trade. That, of course, I have a perfect right to do. But going a step farther, I tell my friends I don't like Smith and don't want to trade with him—probably I have a right to do that; but when I get every citizen of that town together at a meeting and say: "Let us all agree to ruin Smith, we will none of us trade with him"—Smith is bound to be ruined. The common law early recognized this importance of the principle of combination, and therefore it was part of the English common law and is still, barring one recent statute, that a combination to injure a person, although by an act which if done by one individual would be lawful, is nevertheless an unlawful combination; that is, a conspiracy under the law; for all "conspiracies" are unlawful, under the law; the meaning of the word conspiracy in the law is, not an innocent combination, but a guilty one, and anything which is a conspiracy at law can be punished criminally, or will give rise to civil suits for damages by the parties injured, or usually entitle one to the protection of an injunction. A conspiracy, therefore, is not only a guilty combination, of two or more persons, for an unlawful end by any means, or for a lawful end by unlawful means, but also one for an immoral end, a malicious end, as, let us say, the ruin of a third person, or the injury of the public. All the dispute about the law of conspiracy and the statutes and what laborers can do and what employers can do to-day really hinges about that last clause. The labor leaders, the radicals, want to say that nothing shall be a conspiracy where the end is not unlawful and where the acts done are such as, if done by an individual, would not be wrong. In other words, they want statutes to provide that nothing is a conspiracy where the acts done are in themselves lawful if done by one individual. But this English conspiracy law was of the most immense sociological value, in that it did recognize the tremendous power of combination. It said, although you don't have to trade with Smith alone, yet a combination of a great many individuals for the purpose of ruining Smith, by all simultaneously refusing to trade with him, is such a tremendous injury to Smith that the law will take cognizance of it and hold that kind of a combination to be unlawful.

This definition should be further extended, perhaps, to remind you that the courts hold that there are certain kinds of combinations, contemplating ends which will necessarily result in the use of unlawful means; the most familiar example is picketing. The courts mostly hold that although in theory a labor union can march up and down the highway and peacefully advise non-union men or other laborers not to take their jobs, in practice such action usually, if not necessarily, goes to the point of intimidation; and intimidation is nearly always made unlawful by statute. Now I should only add that it is very important to remember—and even the courts do not always remember it—that the thing being punished as a conspiracy is not the end, but the combining; the conspiracy itself is the criminal act. Suppose in Pennsylvania one thousand men meet and say: "John Smith has taken a job and is a scab, and we will go around and maul him to-night," and they do, or they don't; if they are tried, the fact whether they did maul him or not has nothing to do with the matter of the conspiracy. They might, of course, be tried for assault and battery, or for an attempt to commit murder; but if they are being tried for the conspiracy the criminal act is the combining and meeting, not what they do afterward. Therefore it is of no importance whatever what the result of the matter is. The thing that is criminal is the combining; and this leads to a very curious consequence: All conspiracies are criminal; but the object aimed at may be very slightly so. So that it is perfectly possible to have a conspiracy which shall result to its members in five or ten years in the state-prison, whereas the object itself, the act aimed at, may have been comparatively slight, a mere misdemeanor. Take the case of mere intimidation without assault or battery; one man goes to another and says: "If you take that work I shall smash your head," that is intimidation. Thirty of our States have made that unlawful, but it is only a misdemeanor. But if one thousand men get together and say: "We will go around to tell him we will smash his head," that is conspiracy; and conspiracy may subject them to penalty of years in prison. It has been found in the experience of the English people to be such a dangerous power, this power of combination, that to use it for an unlawful or wrongful end may be more of an offence than the end itself.

A combination to injure a man's trade is, therefore, an unlawful conspiracy; well shown in a recent Ohio case where a combination of several persons to draw their money out of a bank simultaneously for the purpose of making it fail, was held criminal. It gives a claim for damages in a civil suit and may be enjoined against. But is it necessarily criminal? It is possible that the offence to the public is so slight that the criminal courts would hardly take cognizance of it in minor cases where there is not some statute expressly providing for a criminal remedy. The Sherman Act, our Anti-trust Act, does so where even two persons conspire together to restrain interstate commerce. It is a crime at common law, however slight, for even two to combine to injure any person's trade. But, independent of statutes, suppose only two persons agree not to buy of a certain butcher in Cambridge: in theory, he might have a civil remedy; but it may be doubted that it would amount to a criminal offence. Lex non curat de minimis. So, it is an offence under most State anti-trust laws, as it was at the common law, to fix the price of an article—that is restraint of trade—or to limit the output. Two grocers going to the city in the morning train agree that they will charge seven dollars a barrel for flour during the ensuing week; two icemen, to harvest only a thousand tons of ice. The contract between them could not be enforced; it is undoubtedly unlawful; but it would hardly be a criminal offence at the common law. There is, at least at the common law, some middle ground between those contracts which are merely unenforceable, and those which subject the co-makers to a criminal liability; although under the cast-iron wording of a statute it may be that no such distinction can be made.

Independent of combination, there is probably no legal wrong in merely wishing ill to a man, withdrawing one's custom from him, competing with him, or even, possibly, in injuring his trade. There is an ancient case where the captain of an English ship engaged in a certain trade, to wit, the slave trade, arrived off a beach on the coast of Africa and was collecting his living cargo, when a second ship, arriving too late to get a load itself, fired a cannon over the heads of the negroes, and they, with the chief who was selling them, fled in terror to the forest. The captain of the first ship went back to London and brought suit against the captain of the second ship for injuring his trade and was allowed to recover damages; but it may be doubted if that is good law; although in 1909 a Minnesota court decided that a barber could sue an enemy if he maintained an opposition barbershop solely for the purpose of injuring his business; and a few years ago in Louisiana a street railway foreman was held liable in damages for instructing his men not to frequent the plaintiff's store.[1] I say to you: "Do not trade with Smith, he is not a good person to deal with," or, "Do not take employment with him, he will treat you cruelly"; and in either case, unless I can be convicted of slander, he has no remedy against me if I am acting alone.

[Footnote 1: Tarleton v. McGawley, Peak, N.P.C. 270; Tuttle v. Buck, 110 N.W. 946; Graham v. St. Charles St. Ry. Co., 47 La. Ann. 214.]

Now, this great law of conspiracy applies equally and always to combinations of capital or of employers, to trusts, contracts in restraint of trade and blacklists, as well as to unlawful labor combinations, unlawful union rules, and boycotts. The statutes directed against both originated about the same time and have run historically on all-fours together. The old offences of forestalling and regrating may have been lost sight of, and possibly the statutes against them fallen into disuse, although they were expressly made perpetual by the 13th Elizabeth in 1570 and not repealed until the 12th George III in 1772; but the principle invalidating restraint of trade and contracts in restraint of trade remained as alive as that prohibiting unlawful combinations of labor. The latter, indeed, has largely disappeared. Both strikes and trades-unions, once thought unlawful in England, are made lawful now by statute, but a contract in restraint of trade or a monopolistic combination of capital is as unlawful as it ever was both in England and in this country; and the common law is only re-enforced by our State statutes and applied to matters of interstate commerce as well, by the Sherman Act. Closely connected with both is the principle of reasonable rates in the exercise of franchises; excessive toll contrary to common custom, as we found forbidden in 1275. The first statute against forestalling merely inflicts a punishment on forestallers and dates ten years later, 1285, though the time of this, the Statute concerning Bakers, is put by some still earlier, with the Assize of Bread and Beer, in 1266. It provides the standard weight and price of bread, ale, and wine, the toll of a mill. It anticipates our pure-food laws and punishes butchers for selling unwholesome flesh or adulterating oatmeal, and says "that no Forestaller be suffered to dwell in any Town, which is an open Oppressor of Poor People ... which for Greediness of his private Gain doth prevent others in buying Grain, Fish, Herring, or any other Thing to be sold coming by land or Water, oppressing the Poor, and deceiving the Rich, which carrieth away such Things, intending to sell them more dear,... and an whole Town or a Country is deceived by such Craft and Subtilty," and the punishment is put at a fine at the first offence with the loss of the thing bought, the pillory for the second offence, fine and imprisonment for the third, and the fourth time banishment from the town.

The first definition of forestalling is here given. Our modern equivalent is the buying of futures or dealing in stocks without intent to deliver, both of which have been forbidden or made criminal in many of our States. And forestalling, regrating, and engrossing were things early recognized as criminal in England, and these statutes embody much of what is sound in the present legislation against trusts.

Forestalling was very apt to be done in a staple, that is, in the town which was specially devoted to that article of trade; so that the laws of forestalling got very much mixed up with the laws of the staple; but forestalling would equally mean going into any market and buying up all the production. If the article was produced abroad, the forestaller would try to buy up the entire importation.

(1352) We now find another statute; it applies to wines and liquors "and all other wares that come to the good towns of England," and the penalty imposed by that law was that the forestaller must forfeit the surplus over cost to the crown and be imprisoned two years. We are still enforcing remedies of that kind in our anti-trust laws, only instead of having him forfeit the surplus to the crown we usually have him pay damages, sometimes treble damages to the persons injured. In the Beef Trust case, the parties were duly convicted, and instead of being imprisoned, they were fined $25,000. In other words, we still have not the courage to go to the length that our ancestors did in enforcing the penalties of these unlawful combinations. Of course it is a much more difficult thing to have forestalling and engrossing laws against foreign importations than against home productions; and so to-day we have not tried, except by a tariff, forestalling laws against foreign importations, but we have attempted to apply them very much as to home productions. In England, however, the statute at that time said that a person who bought up all the foreign product must forfeit all the profits to the state. Now this is nothing but the "Iowa idea" of two years ago. It was suggested very urgently by Governor Cummins that there should be a law providing that where a trust got complete control of a certain industry in this country its surplus profit should be forfeited either indirectly by the taking off of the tariff, or by way of a franchise tax, that is, of a United States tax upon its franchises, which could be increased in such a way as to tax it out of existence if it persisted. The latter remedy is at the root of President Taft's new corporation tax, but Congress has not yet applied the former, although it was very seriously advocated that there should be statutes which should indirectly forfeit the profits of the trust that had secured a monopoly; that is an engrossing trust—covin or alliance, as our ancestors would have called it—"a gentleman's agreement"—and that it should be done by a reduction of the tariff on the articles in which that trust dealt; this reduction to be ordered by the president. When he determined that a trust had completely engrossed an industry, he might say so by proclamation; and then the act of Congress should go into effect and the duties upon that product be abolished, all the protection of the trust taken away. There is a trouble with such legislation, in that it may be said to allow the president to make the law; and under our Constitution the president cannot make laws. The legislative branch and the executive branch of the government must be kept distinct; and it probably would be argued by constitutional lawyers, and in this instance by either party that was not in favor of such legislation, that to reduce the duties of such a class of goods was a legislative act, and therefore any such law would be unconstitutional because the president cannot legislate. But the point I wish to make now in both these cases is the exact correspondence of the problem; what are remedies to-day were remedies five hundred years ago. So far we have found nothing new, either in remedy or offence.

(1349) Now there is a third great line of legislation that we must consider in connection with these other two, and that is the Statutes of Labor. It was the custom in early times to attempt to regulate prices; both of wages and commodities. The first Statute of Laborers dates from 1349. Its history was economic. They had had a great plague in England known as the Black Death; and it had carried off a vast number of people, especially the laboring people. There was naturally great demand for workers. Laborers were very scarce. It is estimated that one-third of the entire population had died; and there has never been a time when wages were so high relatively, that is, when wages would buy so much for the workingman, as about the middle of the fourteenth century. But the employers were no fonder of high wages than they are to-day. All England was used to sumptuary laws, laws regulating the price of commodities, and villeins still existed. They were only just beginning to consider agricultural laborers as freemen; they were used to the notion of exerting a control over laboring men, who were still often appendant to the land on which they worked, for it was unlawful for an agricultural laborer to change his abode; and in many other ways they were under strict laws. So that it didn't seem much of a step to say also, we will regulate the rate of wages—particularly as the payment of wages in money was rather a new thing. Probably two or three centuries before most wages were paid in articles of food or in the use of the land. So they got this first Statute of Laborers through; it required all persons able in body under sixty to do labor to such persons as require labor or else be committed to gaol. That, of course, is compulsory labor; the law would therefore be unconstitutional with us to-day except in so far as it applied, under a criminal statute, in regard to tramps or vagrants. In some States we commit tramps and vagrants to gaol if they won't do a certain amount of work for their lodging, under the theory that they have committed a criminal act in being vagrants. Otherwise this principle, a law requiring all persons to work, is now obsolete. Then it went on to say, no workman or servant can depart from service before the time agreed upon; lawful enough, to-day, although laborers do not like to make a definite contract. The South, however, has adopted this principle as to agricultural labor, just as in the England of the fourteenth century. Southern States have an elaborate system of legislation for the purpose of enforcing labor upon idle negroes, which, when it creates a system of "peonage," is forbidden by the Federal laws and Constitution. They are compelled, as in the old English statute, to serve under contract or for a period of time, and if they break it, are made liable by this statute to some fine or penalty imposed by the nearest justice of the peace; and when they cannot pay this, they may be Imprisoned. Finally, this Statute of Laborers first states the principle that the old "wage and no more" shall be given, thus establishing the notion that there was a legal wage, which lasted in England for centuries and gave rise to the later law under which strikes were held unlawful. Here, they meant such wages as prevailed before the Black Death.

(1350) The next year the statute is made more elaborate, and specifies, for common laborers, one penny a day; for mowers, carpenters, masons, tilers, and thatchers, three pence, and so on. It is curious that the relative scale is much the same as to-day: masons a little more than tilers, tilers a little more than carpenters; though unskilled labor was paid less in proportion. The same statute attempts to protect the laborer by providing that victuals shall be sold only at reasonable prices, which were apparently fixed by the mayor.

Here, therefore, we have the much-discussed Standard Wage fixed by law, but in the interest of the employer; not a "living wage" fixed in the interest of the employee, as modern thought requires. The same statute makes it unlawful to give to able-bodied beggars, which is of a piece with the compulsory labor of the able-bodied. Now this first Statute of Laborers, which led to centuries of English law unjust to the laborers, it is interesting to note, was possibly never a valid law, for it was never agreed to by the House of Commons. However that may be, the confirming statute of 1364 was duly enacted by Parliament, and this was not in terms repealed until the year 1869, although labor leaders claim it to have been repealed by general words in the 5th Elizabeth.

Thorold Rogers tells us that those, after all, were the happy days of the laborer—when masons got four pence a day, and the Black Prince, the head of the army, only got twenty shillings—sixty times as much. This is a fair modern proportion, however, for military and other state service; though we pay the president a salary of nearly double that proportion to the yearly pay of a carpenter. But then, these English statutes applied mainly to agricultural labor; and domestic labor was paid considerably less.

This Statute of Laborers was again re-enacted in 1360, with a clause allowing work in gross, and forbidding "alliances and covins between masons, carpenters, and guilds." Work "in gross" means work by contract, piece-work, thus made expressly lawful by statute in England in 1360, but still objected to by many of our labor unions to-day. The provision against alliances and covins was extended to cover trades-unions, their rules and by-laws, as well as strikes, which were also considered combinations in restraint of trade. Now this was never law in this country.

There was a very early case in Pennsylvania, while it was still a colony, and there were others in the States soon after, which held that the Statutes of Laborers were never law in America. Our statutes early authorized trades-unions, but without this there is, I think, no American case where either a trades-union or a simple strike was held to be an unlawful combination. It was these early statutes which gave rise to the law that existed until the nineteenth century in England, that both strikes and unions were unlawful; a strike because it was usually a combination to raise the rate of wages, which was in theory fixed by law. Therefore, a strike was a combination with an unlawful aim, consequently a conspiracy. The logic is simple; and in the same way a trades-union was certainly an alliance between skilled workmen, and as such forbidden under the Statute of Laborers, besides being a combination in restraint of trade.

Now the guild, in so far as it was a combination of a trade in a town, was a perfectly lawful thing; in so far as it bore upon the right of a man to be a freeman, it was a perfectly lawful thing; it was only from the other end, from this statute I read as to combinations, that two or three centuries later they got the notion that a trades-union was an unlawful thing; so you may say that a trades-union in England has a lawful root and an unlawful root, and it is rather important to see from which each class springs. The first case in which the modern strike was considered was a case known as the Journeymen Tailors' case, which happened more than two hundred years ago; and in that case it was definitely held to be an unlawful combination, while the first case on the modern boycott, where an injunction was awarded, is as late as 1868, this being the origin of that process which has evoked so much criticism here, the use of the injunction in labor disputes. The unskilled laborers in England have never combined; the only people who combined were the guilds, the skilled men, and in so far as they combined they did it rather as capitalists, employees, or as freemen, to govern the town; this was a lawful object; and the guilds rapidly grew into little aristocracies. They very soon ceased to be journeyman laborers, and became combinations of employers. Thus, the guild movement didn't amount to much in bringing about the modern trades-union or combinations of laboring men; it began before it occurred to these latter that they also could combine; just as, even now, it is more difficult among women to get them to join trades-unions, or for working women to combine; they have not apparently got into that stage of evolution; and so with the negroes in the South. But about the end of the eighteenth century you begin to find the first strikes and combinations of workingmen; and then what the courts promptly applied to them was not the old line of statutes, the historical common-law growth, deriving from a guild which in its origin was a lawful body and so making the union free and lawful, but naturally—for the magistrates were capitalists and land-owners, and all the courts were in sympathy with that class—they went back to the long series of Statutes of Laborers, and said "this is a combination of workingmen to break the law by getting more than lawful wages," and consequently found both combinations unlawful, trades-unions and strikes, as well as when they were combinations to injure somebody, what we should now call a boycott.

The great Statute of Laborers which was for centuries supposed to settle the law of England is that of Elizabeth in 1562. Meantime, agricultural labor as well as industrial was getting to be free. A statute of 1377, which requires villeins refusing to labor to be committed to prison on complaint of the landlord, without bail, itself recognizes that villeins fleeing to a town are made free after a year and day's habitation therein. In 1383 came Wat Tyler's rising; the villeins demanded a commutation of agricultural labor to a money rent (four pence) and full freedom of trade and labor in all the market towns; and about this time was great growth of small freeholders.

(1388) The Statute of Richard II restricts laborers to their hundred and makes it compulsory for them to follow the same trade as their father after the age of twelve. The wages of both industrial and agricultural laborers are again fixed-shepherds, ten shillings a year; ploughmen, seven; women laborers, six shillings, and so on. Servants are permitted to carry bows and arrows, but not swords, and they may not play tennis or foot-ball. And here is the historical origin of the important custom of exacting recommendations: servants leaving employment are required to carry a testimonial, and none are to receive servants without such letter—the original of the blacklist. Here, also, we find the beginning of poor-law legislation, those unable to work are to be supported in the town where born. Villeinage, which began at the Norman Conquest, according to Fitz-Herbert, "because the Conqueror gave lordships with all the inhabitants to do with them at their pleasure to his principal followers, and they, needing servants, pardoned the inhabitants of their lives, and caused them to do all manner of service"—was now abolished by compensation in a money wage payment. The institution of villeinage is last mentioned in a commission of Queen Elizabeth, 1574, directing Lord Burleigh and others in certain counties to compound with all such bondmen or bondwomen for their manumission and freedom.

(1389) The next year the practice of fixing wages at a permanent sum is abandoned and they are to be fixed semi-annually at Easter and Michaelmas by a justice of the peace. In 1402 we find the remarkable provision that laborers are not to work on feast days nor for more than half a day before a holiday. Such legislation would hardly be necessary in modern England, where, in many trades, no one works for a whole day after the holiday as well. In 1425 is another statute forbidding masons to confederate themselves in chapters; and in 1427 the attempt to fix wages by law is again abandoned and they are to be fixed by the justices as in 1389, "because Masters could not get Servants without giving higher Wages than allowed by the Statute."

(1436) Now, perhaps, we find the first use of the expression "restraint of trade," that most important phrase, in a statute forbidding by-laws of guilds or corporate companies "in restraint of trade," also forbidding unlawful ordinances by them as to the price of their wares "for their own profit and to the common, hurt of the people," and such by-laws are made penal and invalid except when approved by the chancellor; and this statute of Henry VI is re-enacted again in 1503 under Henry VII, where by-laws of guilds, etc., restraining suits at law are made unlawful, and so "ordinances against the common weal of the people." The meaning and importance of such legislation as this has been, I hope, made clear above. Note the words "to the common hurt of the people" and "against the common weal of the people." From this century, at least, therefore, dates that doctrine of the common law which makes unlawful any contract or combination in restraint of trade, and it was left for the succeeding century to develop the last great principle, that against monopoly, caused either by unlawful combination of individuals or grant by the crown itself.

The right to labor or to trade was thus fully established in England, and from the very earliest times we find statutes that merchants may freely buy and sell. The Statute of York, to this effect (1335), is re-enacted sixteen years later, and again under Richard II in 1391; and their right to carry away one-half the value of their imports in money, spending the other half in English commodities, in 1401.

This general right of trade may be defined as the right of any man to work at what trade he chose, and to buy or sell what and where he will, in the cheapest market. This right was indeed fundamental and needed no express statute. But all these laws concerning by-laws or combinations to prevent people from exercising their trade, or showing what were the liberties of trade in London and other towns (of which there are many) are exemplifications of it. That this law is far older than the statutes is well shown by an actual law report of a case decided in 1221 and first published by the Selden Society in 1877:

"The Abbot of Lilleshall complains that the bailiffs of Shrewsbury do him many injuries against his liberty, and that they have caused proclamation to be made in the town that none be so bold as to sell any merchandise to the Abbot or his men upon pain of forfeiting ten shillings, and that Richard Peche, the bedell of the said town, made this proclamation by their orders. And the bailiffs defend all of it, and Richard likewise defends all of it and that he never heard any such proclamation made by anyone. It is considered that he do defend himself twelve-handed (with eleven compurgators), and do come on Saturday with his law."

This is a remarkable report, for in twelve lines (ten lines of the law Latin) we have here set forth all the important principles of the law of boycott. The abbot complains that the Shrewsbury people do him many injuries "against his liberty," i.e., the abbot claims a constitutional right to freely conduct his own business; then we have the recognition of the threat of a boycott as a particularly illegal act: "They have caused proclamation to be made that none sell merchandise to the abbot." This is nothing but our modern "unfair list." The defendants admit the illegality of their conspiracy, because they deny it as a fact; and the bedell likewise denies that he ever made such proclamation or threat, whereupon (the plaintiff being a man of the church) they are set to trial by wager of law instead of by actual battle, neither party nor the court making any question of the illegality both of the conspiracy and of the act complained of.

There is no question then that all contracts in unreasonable restraint of trade were always unlawful in England and are so therefore by our common law. There was probably no real necessity for any of our anti-trust acts, except to impose penalties, or, as to the Federal or Sherman Act so-called, to extend the principles of the common law to interstate commerce, which is under the exclusive jurisdiction of the Federal government. The common law, however, made the exception of reasonable restraint of trade, which the Sherman Act does not; that is to say, a contract between two persons, one of whom sells his business and good-will to the other and agrees not to embark in the same trade for a certain number of years or in a certain prescribed locality, was a reasonable restriction at the common law. So, if two merchants going down town to their business agree in the street car that they will charge a certain amount for a barrel of flour or a ton of coal that week, this would probably be regarded as reasonable at the common law; but the common law, like these early statutes of England, looked primarily, if not exclusively, to the welfare of the consumer; they always speak of the common weal of the people, or of combinations to the general hurt of the people, and general combinations to fix prices or to limit output are therefore always unlawful; so a combination that only one of them should exercise a certain business at a certain place—like that of our four great meatpacking firms, who are said to have arranged to have the buyer for each one in turn appear in the cattle market, thus being the only buyer that day—would be unlawful, when the restraint of trade resulting from an ordinary purchase would not be.

The fixing of ordinary prices, not tolls, was thoroughly tried in the Middle Ages and failed. Nor has it been attempted since as to wages, except in New Zealand by arbitration, and in England and (as to public labor) in the State of New York and a few other States where we have a recent statute that all employment in public work (that is, work for any city, county, or town, or the State, or for any contractor therefor) must be paid for "at the usual rate of wages prevailing in the trade"; this principle, taken from the last form of the English Statute of Laborers, being passed in the interest of the laborers themselves and not of the employers, as it was in early England. The result of this first piece of legislation was to impose some twenty thousand lawsuits upon the city of New York alone; the laborers working for a year or two at the rates paid by the city and then, after discharge, bringing suit and claiming that they had not been paid the "usual rate" of the trade; and as there were very heavy penalties, it is said to have cost the city of New York many millions of dollars. In the same way the union idea of having all trades under the control of an organization was carried to its extreme result in the Middle Ages also, so that the guilds became all-powerful; they imposed their rules and regulations to such an extent that it was almost impossible for any man to get employment except by their permission and under their regulation, or without membership. They naturally developed into wealthy combinations, more of employers than of journeymen, until they ended as the richly endowed dinner-giving corporations that we see in the city of London to-day. In France, at least, they were considered the greatest menace to labor, and were all swept away at the time of the French Revolution amid the joy of the masses and the pealing of bells. Unfortunately, our labor leaders are sometimes scornful of history and unmindful of past example; the fact that a thing has been tried and failed or has, in past history, developed in a certain manner, carries no conviction to their minds.

(1444) A servant in husbandry had to give six months' notice before leaving and wages were again fixed; and in 1452, the time of Jack Cade's Rebellion, one finds the first prototype of "government by injunction," that is to say, of the interference by the lord chancellor or courts of equity with labor and the labor contract, particularly in times of riot or disorder.

But the first trace of this practice, now obnoxious to many under the phrase quoted, dates back to 1327, when King Edward III found it necessary to adopt some more effectual measures of police than those which already existed. For this purpose justices of the peace were first instituted throughout the country with power to take security for the peace and bind over parties who threatened offence.[1] Fifty years later, in the reign of Richard II, it was found necessary to provide further measures for repressing forcible entries on lands. The course of justice was interrupted and all these provisions were rendered in a great degree ineffectual by the lawless spirit of the times. The Statute of 1379 recites that "our Sovereign Lord the King hath perceived ... that divers of his Liege People claiming to have Right to divers Lands, Tenements, and other Possessions, and some espying Women and Damsels unmarried ... do gather them together to a great Number of Men of Arms and Archers ... not having Consideration to God, but refusing and setting apart all Process of the Law, do ride in great Routs ... and take Possession of Lands and in some Places do ravish Women and Damsels, and bring them into strange Countries." Therefore the Statute of Northampton, the 2d of Edward III, is recited and confirmed and the justices of the king's commission ordered to arrest such persons incontinent without tarrying for indictment or other process of law. But that this summary process was already obnoxious to the people was shown by the fact that it was repealed the very following year because the articles "seemeth to the said Commons very grievous." Only the Statute of Northampton is preserved, and those who had been so taken and imprisoned by virtue of said article without other indictment "shall be utterly delivered."

[Footnote 1: See "Injunctions in Conspiracy Cases," Senate Document No. 190, 57th Congress, 1st Session, p. 117.]

(1384) It is noteworthy that at the same time that this extra-common-law process begins in the statutes, we have other statutes vindicating the power of the common-law courts. For instance, six years later, in the 8th of Richard II is a clause complaining that "divers Pleas concerning the Common Law, and which by the Common Law ought to be examined and discussed, are of late drawn before the Constable and Marshal of England, to the great Damage and Disquietness of the People." Such jurisdiction is forbidden and the common law "shall be executed and used, and have that which to it belongeth ... as it was accustomed to be in the time of King Edward." Again, four years later, it is ordained "that neither Letters of the Signet, nor of the King's Privy Seal, shall be from henceforth sent in Damage or Prejudice of the Realm, nor in Disturbance of the Law."

(1388) The next year we find a new Statute of Laborers confirming all previous statutes and forbidding any servant or laborer to depart from service without letters testimonial, and if found wandering without such letters shall be put in the stocks. Short of the penalty of the stocks, a condition of things not very dissimilar is said to exist to-day in the non-union mining towns of the West. In Cripple Creek, for instance, no one is allowed without a card from his previous employer which, among other things, sets forth that he is not associated with any labor union. This Statute of Richard II also provides that artificers and people of Mystery, that is to say, handicraftsmen, shall be compelled to do agricultural labor in harvest time. (The high prices of to-day, some one has said, are really caused not so much by the trusts or even by the tariff, as by voluntary idleness; if a man will not work, neither shall he eat, but the lesson has been forgotten! In the more prosperous parts of the country, in Massachusetts, for instance, it is sometimes impossible to give away a standing crop of grain for the labor of cutting it, nor can able-bodied labor be secured even at two dollars per day. The Constitution of Oklahoma, which goes to the length of providing that there shall be no property except in the fruits of labor, might logically have embodied the principle of this Statute of Richard II; and we know that in Kansas they invite vacation students to harvest their crop. So in France, practically every one turns out for the vendange, and in Kent for the hops; a merriment is made of it, but at least the crop is garnered.) The Statute of Richard goes on to complain of the outrageous and excessive hire of labor, and attempts once more to limit the prices, but already at more than double those named in the earlier statute: ploughmen seven pence, herdsmen six pence, and even women six pence a day, and persons who have served in husbandry until the age of twelve must forever continue to do so. They may not learn a trade or be bound as apprentices. Servants and laborers may not carry arms nor play at foot-ball or tennis; they are encouraged, however, to have bows and arrows and use the same on Sundays and holidays. Impotent beggars are to be supported by the town where they were born.

(1387) The barons protested that they would never suffer the kingdom to be governed by the Roman law, and the judges prohibited it from being any longer cited in the common-law tribunals;[1] and in 1389 we find another statute complaining of the courts of the constable and marshal having cognizance of matters which can be determined by the common law, and forbidding the same; and the statute of the previous year concerning laborers is confirmed, except that wages are to be fixed by a justice of the peace, "Forasmuch as a Man cannot put the Price of Corn and other Victuals in certain." Shoemakers are forbidden to be tanners, and tanners to be shoemakers; a statute which seems to have been much debated, for it is continually being repealed and re-enacted for a hundred years to follow.

[Footnote 1: Spence, I Eq. Jur., 346.]

(1392) The Statute of York, giving free trade to merchants, is re-enacted, and it is specified that they may sell in gross or by retail "notwithstanding any Franchise, Grant or Custom," but they are forbidden to sell to each other for purposes of regrating and they must sell wines in the original package and "Spicery by whole Vessels and Bales." "All the weights and measures throughout the Realm shall be according to the Standard of the Exchequer"—save only in Lancashire, where they are used to giving better measure.

(1402) Laborers are forbidden to be hired by the week or to be paid for holidays or half days. In 1405 the old Statute of Laborers is re-enacted, particularly the cruel law forbidding any one to take up any other trade than husbandry after the age of twelve, nor can any one bind his child as apprentice to learn a trade unless he has twenty shillings per annum in landed property.

(1414) The 2d of Henry V recites the Statute of the 13th of Henry IV against rioters, but power to suppress them is intrusted to the justices of the peace and the common-law courts "according to the law of the land." Only if default is made in suppressing them the king's commission goes out under the great seal, showing the beginning of the use of the executive arm in suppressing riots, of which our most famous instance was the action of President Cleveland in the Pullman-car strike in Chicago in 1893. And in the same statute the chancery arm is invoked, that is to say, if any person complain that a rioter or offender flee or withdraw himself, a bill issues from the chancery, and if the person do not appear and yield, a writ of proclamation issues that he be attainted, a more severe punishment than the six months' imprisonment usually meted out to our contemners. It is interesting to notice that the bills (petitions for legislation) are now in English; though the statutes enacted are still in French or Latin.

(1425) A statute recites that "by the yearly Congregations and Confederacies made by the Masons in their general Chapiters and Assemblies, the good Course and Effect of the Statute of Labourers be openly violated ... and such Chapiters and Congregations are forbidden and all Masons that come to them are to be punished by imprisonment and fine"—an excellent example of the kind of statute which led to the doctrine that trades-unions were forbidden by the common law of England.

(1427) The next year the attempt to fix wages by law is again abandoned, and they are to be fixed by the justices, "because Masters cannot get Servants without giving higher Wages than allowed by the Statute."

The exact time of the appearance of the modern corporation has been a matter of some doubt. Its invention was probably suggested by the monastic corporation, or the city guild. This whole matter must be left for a later chapter, but we must note the phraseology of a statute of Henry VI in 1426, which speaks of "Guilds, Fraternities, and other Companies corporate," and requiring them to record before justices of the peace all their charters, letters-patent, and ordinances or by-laws, which latter must not be against the common profit of the people, and the justices of the peace or chief marshal are given authority to annul such of their by-laws as are not reasonable and for the common profit—the fountain and origin of a most important doctrine of the modern law of restraint of trade and conspiracy.

(1444) Servants in husbandry purposing to leave their masters were required to give warning by the middle of the term of service so that the "Master may provide another Servant against the End of his Term." Again a maximum price is fixed for the wages of servants, laborers, and artificers: the common servant of husbandry, fifteen shillings a year, with money for clothing, eleven shillings; and women servants ten shillings, with clothing price of four shillings, and meat and drink. But winter wages are less and harvest wages more than in summer; and men who refuse to serve by the year are declared vagabonds.

(1450) John Cade was attainted of treason, and in 1452 comes the famous statute giving the chancellor power to issue writs of proclamation against rioters or persons guilty of other offences against the peace, with power to outlaw upon default, quoted by Spence[1] as the foundation of the practice of issuing injunctions to preserve the peace, now bitterly complained of by Mr. Gompers and others; and it is most noteworthy as sustaining this adverse view that the Statute of Henry VI itself makes special exception, "That no Matter determinable by the Law of this Realm shall be by the same Act determined in other Form than after the Course of the same Law in the King's Courts having Determination of the same Law," and the act itself is only to endure for seven years.

[Footnote 1: "1 Eq. Jur.," 353.]

(1487) This year a Statute of Henry VII originates the criminal jurisdiction of the Court of Star Chamber,[1] an interesting statute reciting that the Mayor and Aldermen of London have forbidden citizens to go to fairs or markets, or trade outside the city, which is declared "contrary to the common weal of England" and the ordinance made void. In 1495 the laws against riots and unlawful assemblies are recited and confirmed, and authority to punish and prevent them given to the justices and the common-law courts, except that the justices themselves in a case of such disorder by more than forty persons are to certify the names of the offenders to the king and his council (that is to say, the Star Chamber) for punishment. In 1495 the wages of servants in husbandry and of artificers and shipwrights, master-masons and carpenters are again fixed, with the hours of work and meal time provided; in March, from 5 a.m. till 7 or 8 p.m., but with half an hour for breakfast, an hour and a half for dinner, and half an hour for supper, and in winter time from dawn till sunset, and "said Artificers and Laborers shall slepe not by day" except between May and August; but this whole act "for the common wealth of the poor artificers" is repealed the following year.

[Footnote 1: This court, says Lord Coke, was originally established to protect subjects against the offences and oppressions of great men by extortion, frauds, riots, unlawful assemblies, etc., leaving ordinary offences to the courts of common law, and Clarendon adds that "whilst it was gravely and moderately governed, it was an excellent expedient to preserve the peace and security of the kingdom." Nevertheless, "having become odious by a tyrannical exercise of its powers, it was abolished by a Statute of 16 Charles I."]

(1503) This year there is another important statute against private and illegal by-laws, reciting that "companies corporate by color of rule and governance to them granted and confirmed by charters and letters patent of divers Kings made among themselves many unlawful and unreasonable ordinances as well in price of wares as other things for their own singular profit and to the common hurt and damage of the people," and such by-laws are forbidden unless specially authorized by some official such as the chief governor of the city. The law so far dates from the 15th of Henry VI; but the present act goes on to provide that "no masters, fellowships of crafts or rulers of guilds or fraternities make any acts or ordinances against the common profit of the people but with the examination and approval of the Chancellor and Chief Justice of England, and that there shall never be any by-law to restrain any person from suits in the common-law courts." A Federal statute similar to this was proposed by a late president to apply to all corporations, or at least to all corporations conducting interstate commerce; the approval of their by-laws or other contracts to be by the Federal commissioner of corporations; while the last section forbidding trades-unions to deny to their members the right of suing them or other persons in the ordinary courts is part of our constitutional law to-day and much objected to by the unions themselves, as it was in the time of Henry VII The tendency to create special courts (commerce, patents, etc.) seems to be beginning anew, despite the malign history of the ancient courts of the Constable and Marshal, Star Chamber, Requests, Royal Commissions, etc.

(1512) Under Henry VIII the penalty for paying higher wages than the law allowed was removed from the employer and applied only to the employee taking the wage; and in 1514 comes perhaps the most elaborate of all the earlier acts fixing the wages and hours of labor. Their meal times and sleep times are carefully regulated, they are forbidden to take full wages for half-day's work and forbidden to leave a job until it is finished, and the rates of pay of bailiffs, servants, free masons, master carpenters, rough masons, bricklayers, tilers, plumbers, glaziers, carvers, joiners, shipwrights, ship carpenters, calkers, clinchers, agricultural laborers, both men and women, mowers, reapers, carters, shepherds, herdsmen, and possibly others, are again prescribed; this list of trades in the England of the early sixteenth century is interesting. Bailiffs who assault their overseers may be imprisoned for a year, and an exception is made from the act of all miners of lead, iron, silver, tin, or coal, "called See Cole, otherwise called Smythes Coole," or for making of glass, but that part of the act fixing wages was repealed the very next year as to the city of London.

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