"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.