IV
EARLY LABOR LEGISLATION, AND LAWS AGAINST TRUSTS
(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and hence our own, it has probably always been law in America except, possibly, in those few States which expressly repealed the whole common law[1] and those where civil law prevailed.[2] It was therefore equally unnecessary to adopt new statutes providing against extortion or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.
(1514) The abuse of monopolies begins to be shown this year (but see also 1503, above) in a statute complaining of the grant of second patents of a matter already granted; and avoiding in such cases the later patent unless the king express that "he hath determined his pleasure against the first."
The appearance of the gypsies in England is marked by a statute of 1530, describing them as "outlandish people called Egyptians," complaining of their robberies, and requiring them to depart the realm. In the same year first appeared the celebrated Act for the punishment of beggars and vagabonds and forbidding beggary, and requiring them to labor or be whipped. Herbert Spencer states in his "Descriptive Sociology" that it punishes with loss of an ear the third conviction for joining a trades-union, which, if true, would justify much of the bitterness of modern labor unions against the common law. The provision evidently referred to (22 Henry VIII, chapter 12, section 4) applies, however, not to guilds, but to "Scolers of the Universities of Oxford and Cambridge that go about begging not being authorized under the seal of the said Universities" as well as to other beggars or vagabonds playing "subtile, crafty and unlawful games such as physnomye or palmestrye." The same year is an Interesting statute against foreign artificers exercising handicrafts in England, not without example in the labor legislation of our modern States; but exempting beggars, brewers, surgeons, and scriveners as not handicraftsmen, possibly the origin of the vulgar notion that those trades are more genteel than skilled labor.
(1535) Another statute against sturdy vagabonds and "rufflers found idling after being assigned to labor," and already having their ears so slit, are punishable with death. This year Wales was joined to England; and we see the first act for the suppression of monasteries; the next year came the statute extinguishing the authority of the Bishop of Rome. With the struggle against the Roman Church went the contest for freedom; inter arma silent leges; sociological legislation came to an end for the rest of the reign and arbitrary laws passed at the king's desire; in 1536, the act authorizing kings of England, on arriving at the age of twenty-four, to repeal any act of Parliament made during their minority, and in 1539 the "Act that Proclamations made by the King shall be obeyed"—the high-water mark of executive usurpation in modern times. Proclamations made by the king and council were to have the force of acts of Parliament, yet not to prejudice estates, offices, liberties, goods or lives, or repeal existing laws; the cardinal constitutional rights were thus preserved, even as against this royal aggression.
(1548) Under Edward VI and Elisabeth we may expect more enlightened legislation, and are not disappointed. Indeed, no one can read the statutes of the great queen without seeing that modern times here begin. Nevertheless, while trade is becoming free, labor is no less severely, if more intelligently, regulated. We first note a short but important statute touching victuallers and handicraftsmen, worth quoting in part: "Forasmuche as of late dayes divers sellers of vittayles, not contented withe moderate and reasonable gayne … have conspyred and covenanted together to sell their vittels at unreasonable price; and lykewise Artyficers handycrafte men and laborers have made confederacyes and promyses and have sworne mutuall othes, not onlye that they shoulde not meddle one withe an others worke, and performe and fynishe that an other hathe begone, but also to constitute and appoynt howe muche worke they shoulde doe in a daye and what bowers and tymes they shall work, contrarie to the Lawes and Statutes of this Realme" (It is extraordinary how closely this old statute sets forth some practices of the modern trades-union.) "Everie person so conspiring covenantinge swearing or offendinge … shall forfeyt for the firste offence tenne pounds … or twentie dayes ymprisonment" with bread and water; for the second offence, twenty pounds or the pillory, and for the third offence forty pounds, or the pillory and lose one of his ears. After that he is to be taken as a man infamous and his oath not to be credited at any time, and if there be a corporation of dealers in victuals or of handicraftsmen so conspiring, it shall be dissolved—the origin and precedent of the Sherman Act! This, of course, is the statute which Herbert Spencer cites as making a "third conviction for joining a trades-union punished with loss of an ear"; but he places the date at 1535 instead of 1548. The statute, however, goes on to provide absolute freedom of employment or trade for all skilled mechanics in any town, although not freemen thereof, whether they dwell there or not, any town or guild by-law to the contrary notwithstanding; so that this important statute may be said to establish the most enlightened view that there must be absolute liberty of employment granted any one, only that they must not conspire to the injury of others. Unfortunately, in the very next year this last part is repealed as to the city of London, "Artificers and Craftmen of that ancient City complaining that it was contrary to their ancient privilege," a view as modern as is the law itself. Immediately after this law is one providing that journeymen, clothiers, weavers, tailors, and shoemakers shall not be hired for less than a quarter of a year on penalty of Imprisonment to them and the employer, the statute reciting that, once out of their apprenticehood, they "will not commonly be retained in service by the year, but at their liberty by the day, week or otherwise, to the intent that they will live idly, and at their pleasure flee and resort from place to place, whereof ensuith more incovenyencies then can be at this present expressed and declared"—an inconvenience not unknown in modern intelligence offices. All employers having more than three apprentices shall keep at least one journeyman, and unmarried servants in husbandry must serve by the year.
(1550) In the 3d of Edward VI we find the first Riot Act, aimed at persons to the number of twelve or above assembling together and proposing to alter the laws and not dispersing when so required by the sheriff, and even persons more than two and less than twelve assembling for such purpose are subject to fine and imprisonment with treble damages to parties injured, and if forty persons so assemble and do not disperse in three hours, they are declared felons. This statute was re-enacted and made more severe in the reign of Queen Mary.
(1562) In the 5th of Elizabeth comes the last and greatest Statute of Laborers. This statute is a consolidation of all previous laws, and it begins by recognizing the principle that the fixing of wages is a mistake and all such laws are repealed so far as they relate to terms of hiring and wages. Servants in certain employments, generally speaking the tailoring and shoemaking trades, may still be hired by the year, and persons unmarried, not having an income of forty shillings a year, may be compelled to serve in their own handicraft. Such yearly servants may not be dismissed or depart during the year except by cause allowed by two justices, nor at the end of a year, without a quarter's warning. Unmarried persons under thirty, not having any trade and not belonging to a nobleman's household, may be compelled to labor at the request of any person using an art or mystery, and all persons between twelve and sixty not otherwise employed may be compelled to serve by the year in husbandry. The masters may not dismiss, nor the servants unduly depart; nor leave the city or parish of their service without a testimonial; that is to say, a certificate of due cause under the seal of the town or constable and two honest householders. The hours of labor are still fixed from 5 A.M. to 7 P.M., between March and September, with two and one-half hours for meal times, drink times, and sleep. From September to May, from dawn to sunset, and sleep times only allowed from May to August. A penalty of one month's imprisonment and fine is imposed on artificers and laborers leaving their work unfinished. Wages are still to be fixed by the justices of the peace, and it is made a penal offence to give or receive higher wages than the lawful rate, and all contracts for higher wages are void. Unmarried women between twelve and forty may be compelled to serve in like manner, and everybody has to work at harvest time, that is to say, artificers as well as laborers. The elaborate law of apprenticeship dates also from this great statute, and no one can use a manual art who has not been apprenticed to the same for seven years. One journeyman shall be kept for each three apprentices; disputes are to be settled by the justices of the peace, and indeed the whole labor contract is regulated as carefully as the most statute-mad of modern labor leaders could desire, though hardly, perhaps, then, in the sole interest of the workingman. If this statute was ever repealed, it was in very recent times.
(1571) The year of the statute against fraudulent conveyances, and of another poor law, with provisions for the punishment of "rogues, vagabonds and sturdy beggars," who are defined to include those going about the country "using sybtyll craftye and unlawfull Games or Playes … Palmestrye … or fantasticall Imaginacons…. Fencers Bearewardes and Common Players," and the penalty for harboring such vagabonds was twenty shillings. We are a long time from the knighting of Sir Henry Irving. In 1575 comes another act for setting the poor to work, and the punishing of tramps and beggars.
In 1571 also is the first formal complaint of monopolies by the Commons. Coal, oil, salt, vinegar, starch, iron, glass, and many other commodities were all farmed out to individuals and monopolies; coal, mentioned first, is still, to-day, the subject of our greatest monopoly; while oil, mentioned fourth, is probably the subject of our second greatest monopoly; and iron, mentioned seventh, is probably the third. Conditions have not changed. The only reason we don't have salt still a monopoly is on account of the numerous sources and processes for obtaining it from mines and from the sea; Fugger, the John D. Rockefeller of the sixteenth century (whose portrait in Munich strongly resembles him), had a monopoly of the salt mines of all Germany. The conditions have maintained themselves, even as to the very articles. This grievance was first mooted in Parliament in 1571 by a Mr. Bell, "who was at once summoned before the Council." This council was the King's Council, or Privy Council—a body roughly corresponding to our United States Senate. He was summoned before the council for objecting because coal, oil, salt, vinegar, starch, iron, glass, were the subjects of monopoly; and he "returned to the House with such an amazed countenance that it daunted all the rest." That is very much the fate of the tariff reformer to-day, if we may credit the tales of those returning from Washington.
After a lapse of twenty-six years the Commons ventured again. This time the queen replied that she hoped her dutiful and loving subjects would not take away her prerogative, which is the choicest flower in her garden, but promised to examine all patents and abide the touchstone of the law. Nevertheless, four years later the list of articles subject to monopoly was so numerous that when it was read over to the House in 1601 an indignant member exclaimed: "Is not bread amongst them? Nay, if no remedy is found for these, bread will be there before the next Parliament." The Populists openly cursed the monopolies and declared that the prerogatives should not be suffered to touch the old liberties of England. Seeing that resistance was no longer politic, Elizabeth sent a message to the House saying that some of these monopolies should be presently repealed, some superseded, and none put in execution but such as should first have a trial according to law for the good of the people; and Robert Cecil, the secretary, added an assurance that all existing patents should be revoked and no others granted for the future. The Commons waited upon the queen with an address of thanks, to which she replied almost affectionately that never since she had been queen "did I put my pen to any grant but upon pretence made to me that it was good and beneficial to the subjects in general, though a private profit to some of my ancient servants who had deserved well. Never thought was cherished in my heart which tended not to my people's good." Notwithstanding these fair words, the House of Commons found it necessary to enact the Great Statute against Monopolies.
(1623) In the beginning, the statute recites that "Your most excellent Majestie in your Royall Judgment … did In the yeare … 1610 … publish in Print to the whole Realme and to all Posteritie, that all Graunt of Monapolyes and of the benefitt of any penall Lawes, or of power to dispence with the Lawe … are contrary to your Majesties Lawes, which your Majesties Declaracon is truly consonant and agreeable to the auncient and fundamentall Lawes of this your Realme…. Nevertheles … many such Graunts have bene undulie obteyned … For avoyding whereof and preventinge of the like in tyme to come, May it please your most excellent Majestic … that it may be declared and enacted, and be it declared and enacted by the authoritie of this present Parliament That all Monapolies and all Commissions Graunts Licenses Charters and lettres patents heretofore made or graunted, or hereafter to be made or graunted to any person or persons Bodies Politique or Corporate whatsoever of or for the sole buyinge sellinge makinge workinge or usinge of any things within this Realme or the Dominion of Wales, or of any other Monopolies, or of Power Libertie or Facultie to dispence with any others, or to give Licence or Toleracon to doe use or exercise any thinge against the tenor or purport of any Lawe or Statute … are altogether contrary to the laws of this realm and so are or shall be utterly void and in no wise to be put in use or execution." Section 2 provides that all such monopolies and the force and validity of them ought to be and should forever hereafter be examined, tried, and determined by and according to the common law; section 4, that a party aggrieved might have treble damages, as in our modern Sherman Act. There followed provisos for exempting existing patents for twenty-one years or less for new inventions or like future patents for fourteen years or less, the charters of the city of London, or any custom or customs of London, or any other city or town, for corporations, companies, or fellowships of any art, trade, occupation, or mystery; that is to say, exempting the guilds, but these guilds by this time had long ceased to be societies of actual journeymen or handicraftsmen. This great statute may fairly be classed among the constitutional documents of England, and it left the great fabric of the English common law guaranteeing freedom of labor and liberty of trade, Magna Charta itself recognizing this principle, and the Statute of Westminster I forbidding forestalling and excessive toll contrary to the laws of England, as it has remained until the present day—only rediscovered in the statutes of our Southern and Western States aimed against trusts, and reapplied by Congress, in the Sherman Act, to interstate commerce; but in neither case added to, nor, possibly, improved.
Two years before this great statute, the process of impeachment, not employed for nearly two hundred years, had been revived against Sir Giles Mompesson and Sir Francis Mitchell, who in the Parliament of 1621 were impeached "for fraud and oppression committed as patentees for the exclusive manufacture of gold and silver thread, for the inspection of inns and hostelries, and for the licensing of ale-houses. While no definite articles were presented according to modern forms, an accusation was made by the Commons and a judgment rendered by the Lords, condemning both to fine, imprisonment, and degradation from the honor of knighthood." Nevertheless, Charles I revived the system of monopolies and raised revenue by their application to almost every article of ordinary consumption as well as by enormous fines inflicted through the Star Chamber, both important matters leading to his dethronement.[1] Elizabeth granted monopolies on the perfectly madern pretence that a monopoly, be it made by law or by tariff, is for the benefit of the public good, though at the same time possibly a private profit to certain individuals, friends of the sovereign.
[Footnote 1: See Dowell, "History of Taxation," vol. I, pp. 204-209.]
But all this early legislation of England was far better and more advanced than our own; for in all these questions of duties on exports and duties on imports and monopolies, they never consider the man who has the monopoly, the producer; but always they are avowed to be, petitioned for, declared to be, only in the interests of the consumer; which cannot be said to be the case with ourselves.