Popular Law-making
by
Frederic Jesup Stimson
Part 2 out of 8
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.
V
OTHER LEGISLATION IN MEDIAEVAL ENGLAND
(1275) The Statute of Westminster I has sometimes been termed a great
English code; it is certainly a comprehensive statement by statute of
a considerable portion of existing law. In our consideration of
labor and conspiracy laws we have had to include statutes of later
centuries. Now, returning to the year of the Statute of Westminster,
we found, in 1275, also the Statute of Bigamy, aimed against priests
with more than one wife. It is to be noted that this was centuries
before the celibacy of priests became one of the doctrines of the
Roman Catholic Church. It is also interesting that this early statute
refers to the pope as "the Bishop of Rome"--but only as printed since
1543.
(1279) The Statute of Mortmain, aimed at the holding of land in large
quantities by religious corporations, was a true constructive statute,
and the principle it establishes has grown ever since. The law
regards with jealousy the ownership of land by any corporation;
the presumption is against the power, and it extends to-day to all
corporations, and particularly to alien corporations (see chapter 7);
and in 1283 came the Statute of Acton Burnel, re-enacted in 1285 and
called the "Statute Merchant," equally important. It provides for the
speedy recovery of debts due merchants, and is the foundation of all
our modern law of pledge, sales of collateral, etc. It is distinctly
an innovation on the common law; for in those days there was no method
of collecting ordinary money debts. You could levy on a man's land,
but there really seems to have been no method of recovering a debt
contracted in trade; and this is the first of many statutes adopting
foreign ideas as to matters of trade, and the customs of merchants,
drawn frequently from the Lombard or Jew traders of the Continent,
which, by statute law, custom, or court decision, has since become
such a considerable body of the English law as to have a name
to itself--the "Law Merchant." This first statute provides for
imprisonment for debt; "if he have no goods to be seized the debtor is
to be imprisoned, but the creditor shall find him bread and water."
A foreigner coming to England to recover a debt may also recover the
expenses of his trip; and the statute is further liberal in that it
does away with the _Droit d'Aubaine_, that narrow-minded custom by
which the goods or personal property of any person who died passing
through the kingdom were seized by the authorities and could not be
recovered by his heirs. This mediaeval injustice continued for some
centuries in Germany and France, and we can hardly say that the notion
is extinct in this country when a State like California, by her system
of public administrators, practically impounds a large proportion of
all personal property owned by non-residents at their death. Cases
have been known where it cost the executor more than one-third of
the money to collect a mortgage, owned by a deceased citizen of
Massachusetts, in California; and for that reason, among others,
Eastern lawyers have advised against investments in that State; for
the public administrators are usually petty politicians in search of a
job. The increasing burden of our State inheritance tax laws, whereby
every State wherein a corporation exists besides the State of the
deceased seizes its percentage of the stock of such corporation in the
hands of the executors, is another step in this direction. This early
Statute Merchant, liberal in other respects, still excludes Jews from
its benefits.
(1284) Jury trial was well established by this time, for the Statute
of Wales includes it in its code of procedure for that principality.
The great Statute _De Donis_, or Westminster II, came the following
year; most interesting to lawyers as the foundation of estates tail;
but it also regulates "assizes or juries" that "rich men do not abide
at home by reason of their bribes." It also specifically requires
indictment "of twelve lawful men at least," and gives an action
against sheriffs imprisoning without such warrant "as they should have
against any other person." Rape, ten years before made punishable only
by two years' imprisonment, is now made an offence punishable by
loss of life or member; showing how our ancestors treated a burning
question, at least in our Southern States, of to-day. Finally, it
confirms and explains the writ _de odio et atia_, the predecessor of
the modern _habeas corpus_. Some writers have doubted whether this
writ existed as a practical remedy much before the Statute of Charles
II; but here it says that parties indicted, etc., are to have the writ
_de odio et atia_ "lest they be kept long in prison, like as it is
declared in Magna Charta." This can only refer to C. 36 of John's
Charter, "the writ of inquest of life or limb to be given gratis and
not denied"; and taken in connection with the action for damages just
given affords a fairly complete safeguard to personal liberty. It also
contains the first game law, protecting "salmons." "There are salmons
in Wye," says Shakespeare, and we are reminded of it because the
Statute of Winchester in the same year contains a provision that is
almost literally quoted by Dogberry in "Twelfth Night." It provides
for the gates of great towns to be shut at sunset, and that no citizen
should bear arms, and no tavern sell drink after 9 P.M., and then it
comes to the duties of the watch, which are described in such like
manner that Dogberry's language seems a mere paraphrase. Whoever wrote
the play certainly had read the Statutes of the Realm for the year
1285, but so far as I am aware, the Baconians have not yet called
attention to this. And the same statute shows us how much better
police protection the England of 1285 gave than the New York or
Chicago of 1909; for all the people dwelling in the hundred or country
(county) if they do not deliver the body of the offender, "shall be
answerable for the robberies done and also the damages." The same year
was a statute of "The common customs of the City of London," among
which was one that "taverns should not be open after 9 P.M. for the
selling of wine or ale," a regulation for their "tenderloin," which
itself is described in quite modern terms; "none shall walk the
streets after curfew." Possibly the same year is the Statute of
Bakers, with careful provisions against putrid meat, worthy of
consideration by our cold-storage plants. Butchers selling unwholesome
flesh, or buying it of the Jews, were severely punished.
(1289) The Statute of Quo Warranto is another historical landmark,
showing the jealousy our ancestors felt of officials, bureaucracy; a
writ specially devised to enable them to challenge the right of any
magnate who pretended to power by virtue of holding office, and the
predecessor of our modern _quo warranto_, which we still use at all
times for that purpose, not only as against officers but to test
any special privileges or charters claimed, such as the right to a
monopoly, a franchise, a ferry, etc. These may be still tried by _quo
warranto_; meaning, by what warrant do you claim to exercise this
office, this monopoly, this privilege?
About this time is another statute forbidding usury, and permitting
Christian debtors to retain half of all debts they may owe to the
Jews, who are required to wear the mark of two cables joined on their
coats; and there is the great Statute of Westminster III, _Quia
Emptores_, affecting land tenures, still of importance to the
conveyancers. In 1295 we have the famous Model Parliament; that is to
say, the first one where kings, lords, and commons were joined, the
legislative branches sitting separately and the Commons represented.
Two years later Edward I, carrying on the war in Flanders, was
compelled to grant that great confirmation of the charters already
referred to, that no aid or tax should be taken but by the common
consent of the realm and for the common profit; restoring thus into
the recognized charter that important provision of the original
Charter of John; and it provides that the great charter shall be read
twice a year in every cathedral in England. In our country I am aware
of no provision for reading the Constitution, though the Declaration
of Independence, an obsolete document, is occasionally read upon the
Fourth of July.
In 1305 the Anglo-Norman law reports begin, the Year Books. From then
to now, at least, we have continuous written reports of all important
cases decided in England. This is not to say that we do not have them
before (our people, first in the world's history, has the records of
all its cases in high courts for nigh a thousand years), but they are
now for the first time systematic.
(1309) On the accession of Edward II came the Summary of Grievances,
recited in the Statute of Stamford as recognized by Edward I at the
close of his reign. The seizure of supplies by the king without due
payment; the maintenance of courts at the gates of the king's castles
in derogation of the common-law courts; the taking of "new customs,"
two shillings per tun of wine, two shillings for cloth and other
imports, "_whereby the price to the people is enhanced"_; the
debasement of current coin; that petitions of the Commons to
Parliament were not received, etc., etc. All duties were then
suspended, in order to know and be advised "what Profit and Advantage
will accrue to him and his People by ceasing the taking of those
Customs"--a precedent it were to be wished we might have the
intelligence to follow to-day--surely better than a tariff commission!
Two years later came the New Ordinances, which contain a most
interesting precedent, hitherto almost unnoted, of the American
principle of having the courts construe the Constitution. Section VI:
"It is Ordained, That the Great Charter be kept in all its points in
such manner, that if there be in the said Charter any point obscure or
doubtful, it shall be declared by the said Ordainours, and others
whom they will, for that purpose, call to them, when they shall see
occasion and season during their power." Section XXXVIII: "That the
Great Charter ... and the Points which are doubtful in it be explained
by the advice of the Baronage and of the Justices, and of other sage
Persons of the Law." It was ordained that the king should not go out
of the realm, a precedent never violated until modern times, and even
followed by our own presidents, except for Roosevelt's trip to Panama
and Taft's to the borders of Mexico. Again we find "new customs"
abolished, "as upon Wools, Cloths, Wines, Avoir de pois, and other
Things, whereby the Merchants come more seldom, and bring fewer Goods
into the Land, and the Foreign Merchants abide longer than they were
wont to do, by which abiding things become more dear," saving only to
the king his duty on wool and leather, half a mark for a sack of wool
and one mark for a last of leather. "The king shall hold a Parliament
once in the year or twice if need be, and that in a convenient place."
This principle has maintained itself in the English mind, still more
in the American mind, ever since. To this day, in Massachusetts,
for instance, we cannot get a constitutional amendment to have the
legislature sit only once in two years, though it would probably be a
very wise reform, on account of this old inherited feeling that there
is something peculiarly free about an annual parliament, as indeed
there is. The Anglo-Norman kings called parliaments once a year
or oftener. Most of the States in this country now have their
legislatures sit every two years. Alabama and some other States have
recently changed, that they only sit once in four years. But the
conservative old States, like Massachusetts and New Jersey, have still
the rule that the legislature sits every year; and the prejudice in
favor of the annual legislature goes back at least as far as this law
of 1330, where the Commons succeeded in getting a law that Parliament
should sit as often as once in a year, and is incorporated in
England's and Massachusetts' Bill of Rights.
And then we find the first statute restraining what we should now call
chancery jurisdiction, complaining that the law of the land and
common right was delayed by letters issued under the king's will, and
ordaining that henceforth they shall not be disturbed by said letters
and nothing done in any of the places of the court of the king or
elsewhere by such letters against right or the law of the land shall
avail.
In 1313 the coming armed to Parliament is forbidden. These were
troublous times and there was little legislation in consequence,
and in 1322 Edward II secured the revocation of the New Ordinances
themselves, but as in all such cases of royal grant and withdrawal
the principles shown are even the more important historically. Of
uncertain period is the Statute of Jewrie forbidding usury to the
Jews, and Christians from living among them, but permitting them
freedom of trade and exempting them from taxation except to the king;
and a statute of the usages and customs of the men of Kent beginning
with the statement that "all the Bodies of Kentishmen be free, as well
as the other free Bodies of England," which dates at least as late as
the early part of the fourteenth century, but still exemplifying the
notion that a statute should only express law or custom previously
existing.
(1327) The Statute of Northampton, at the beginning of the reign of
Edward III, confirms many of the earlier statutes, but abolishes all
staples beyond the sea and on this side, on the ground that they
tended to monopoly, and provided that all merchants, strangers, and
citizens may go and come with their merchandises into England after
the tenor of the great charter (cap. IX). In the next year is another
provision for annual parliaments, and in 1335 the Statute of York
again allows merchants to buy and sell freely except only enemies, and
giving double damages for the disturbance by any one of such freedom
of trade, and the Statute _de Moneta_, forbidding carrying money
abroad; which is notable to the student of economics as showing how
early what we now call the fallacy of the mercantile system appeared.
Our ancestors thought that there was something peculiarly advantageous
in a tariff or system of duties which put all the money into a country
and allowed only goods to go out; and that opinion is perhaps not yet
extinct.
There always seems to have been a notion that there is something
peculiarly sacred about wool. So we find that in 1337 they made it
a felony to carry wool out of England, or to wear cloth made out of
England; and no clothes made beyond the seas were to be brought into
England. That notion that a man ought to dress on home products lies
behind our present McKinley tariff. Then, in 1340, you will find
another statute for the liberties of merchants, that they should be
allowed the freedom of the kingdom; and a new duty is imposed on wool.
Then we find the abolition of the laws of "the staple"; foreign staple
towns had been abolished just before. The "staple" was the _town_ in
which one commodity was mainly dealt in. Every commodity in England
had some particular town, where the principal market was for it; just
as, with us, the boot and shoe market of the United States is supposed
to be in Boston, the money market in New York, beef and hogs in
Chicago. In England, in the Middle Ages, they really provided that a
certain trade should have its home in a certain town; not necessarily
the only one, but very often in that one only. Thus there were certain
towns for the carrying on of the wool industry; you could only trade
in wool in those towns. The word "staple," from meaning the town or
market, got applied by an easy process to the commodity dealt in; so
that when we now say that the Vermont staple is hay, we mean that this
is the main crop raised in Vermont. But the staple--like the modern
stockyard or exchange--tended to monopoly and was abolished for this
reason.
In 1340 and 1344 we find two picturesque statutes showing how the
English were getting jealous of the Norman kings: "The realm and
people of England shall not be subject to the King or people of
France"--that is, that the customs and law of France, although their
kings were French, were not to be applied to England. Then in the
royal edict that year when King Edward assumed the title, King of
France, they caused him to put in a statement that no inference was to
be drawn from his assuming the flower de luces in the first quarter
of his arms. The present English coat of arms is modern; instead of
having the Norman leopards in the upper right hand and lower left
hand, they then had the blue field and the fleurs de lys of France in
the upper, and the Norman leopards only in the lower corner; and this
lasted until the time of Charles I. In that part of Normandy which now
still remains to the English crown, that is, in Guernsey and Jersey,
you find to-day that only the leopards, not the arms of Great Britain,
are in use. But then again, in 1344, we have a statute (which, by the
way, itself is written in French) complaining that the French king is
trying to destroy the English language. They were getting very jealous
of anything French; the Normans had already been absorbed; modern
England was beginning to appear.
(1344) And now comes a liberal statute, repealing those restrictions
on wool, and allowing it to be exported; and another statute that "the
Sea be open to all manner of merchants." Now this is the origin of the
great English notion of freedom to trade with foreign parts; and was
principally relied upon three centuries later in the great case of
monopoly (7 State Trials) brought against the East India Company. And
England has assumed dominion of the sea ever since; "the boundaries of
Great Britain are the high-water mark upon every other country."
(1348) This year was the plague of the Black Death, and the following
year is the first Statute of Laborers discussed in an earlier chapter
and elaborately amended in the following year. In 1350 also we find
the Statute of Cloths, providing again for free trade in victuals,
cloths, and any other manner of merchandise in all the towns and ports
of England, and punishing forestalling of any merchandise with two
years' imprisonment and forfeiture of the goods, one-half to go to the
informer. Two years later the forestalling and engrossing of Gascony
wines is forbidden and even the selling of them at an advanced price,
and this offence is made capital!--and the next year we have the most
elaborate of the Statutes of the Staple re-established. This ordinance
(1353) provides for a staple of wools, leather, wool fells, and
lead in various towns in England, Wales, and Ireland. The safety of
merchant strangers is provided for, and it is again made a felony for
the king's subjects to export wool; and more important still, all
merchants coming to the staple and matters therein "shall be ruled by
the Law-Merchant and not by the common Law of the Land nor by Usage
of Cities, Boroughs or other Towns," and any plaintiff is given the
option whether he will sue his action or quarrel before the justices
of the staple by the law thereof, or in the common-law court.
Merchandise may be sold in gross or by parcels, but may not be
forestalled; and the goods of strangers suffering shipwreck shall be
restored to their owners on payment of salvage. Houses in staple towns
must be let at a reasonable rate, and conspiracies or combinations
against the law of the staple made criminal. Again our ancestors
showed themselves more civilized than we, this time in their
Custom-house proceedings; for Article 26 of this statute provides that
"whereas a Duty is payable of three pence in the pound by all merchant
strangers coming into the kingdom, they may show their letters or
invoices to prove the value of their goods, and if they have no
letters, they shall be believed by their oath ... and now of late we
understand by the Complaint of the said Merchants that although they
have Letters or have made oath, nevertheless after the Oath made the
bailiffs of the customs do unseal their Barrels, Fardels, and Bales
for which they have taken their oath. We, not willing that Strangers
that come into our Realm be in such Manner grieved, establish that
when the Letters or the oath be taken their Goods shall be delivered
to them without delay and the bailiffs meddle no more of the same
Goods upon Pain of Imprisonment and pay the Party grieved quatreple
Damages." As is well known, it is the United States custom to insist
upon the oath of the importer, and notwithstanding that, rummage open
his trunks. Or are we to infer that people were more truthful in those
days?
(1354) The export of iron is forbidden, and the justices given power
to punish them that sell iron at too dear a price, but it does not
appear how the prices are to be determined; and the Statute of the
Staple is again re-enacted and the provision made that duty shall be
paid only upon those goods which are actually sold in England and the
merchant may re-export the balance--the first precedent of our laws
of importing under bond. It is notable that this year the Statute of
Laborers is extended to the city of London.
(1357) The Ordinance of Herrings is a most interesting example of
early intelligence in dealing with a modern abuse. It provides "that
no herring shall be bought or sold in the Sea, till the Fishers be
come into the Haven with their Herring, and that the Cable of the Ship
be drawn to the Land." That thereupon they may sell freely, but only
between sunrise and sunset. "The Hundred of Herring shall be ... six
score, and the Last by ten Thousand and all Merchants must sell the
Thousand of Herring after the Rate of the Price of the Last, and the
people of Yarmouth shall sell the last [that is, the ten thousand red
herring], bought for forty shillings for half a mark of gain and not
above; and so the people of London for one mark of gain"; and the
destruction of fish is prevented, but all caught must be sold. It is
well known that the custom was to destroy all the fish brought into
Billingsgate market above a certain quantity, which led Ruskin to cry
out furiously that the real prices of the world were regulated by
Rascals, while the fools are bleating their folly of Supply and
Demand. One may guess to-day that most of the proceedings in the ports
of Boston, New York, or Gloucester would be highly criminal under this
ancient law. So, in the Statute of Dogger (this ancient word meaning
the ships that carry fish for salting to Blakeney, Cromer, and other
ports in the east of England), the price of dogger fish is settled at
the beginning of the day and must be sold at such price "openly, and
not by covin, or privily," nor can fish be bought for resale, but must
be sold within the bounds of the market. To-day there is not a quart
of milk that goes into Boston that is not forestalled, nor possibly
a fish that is not sold at sea or even before its capture; and
the number of middlemen is many--when, indeed, they all are not
consolidated into a trust. The destruction, directly or by cold
storage, of milk, fish, eggs, or other food in order solely to
maintain the price should to-day be a misdemeanor; and these early
doctrines of forestalling and restraining trade should be to-day more
intelligently applied by our judges--or by the legislatures, if our
lawyers have forgotten them--for they all are "highly criminal at the
common law."
In the reign of Edward III appears one of many cruel ordinances for
Ireland. Although the Roman Church was then, of course, universal, the
statute is addressed to "the Archbishops, Bishops, Abbots, Priors and
our Officers both great and small of our land of Ireland," and
recites that "through default of good government and the neglect
and carelessness of the royal officers there [this is probably true
enough] our land of Ireland and the Clergy and People thereof have
been manifoldly disturbed and grieved; and the Marches of said Land
situate near the Enemy, laid waste by Hostile Invasions, the Marches
being slain and plundered and their Dwellings horribly burnt." The
Marchers were, of course, mainly of English descent; and one notes
that the Irish are frankly termed the Enemy. As a method of meeting
this evil, the Saxon intelligence of the day could find no better
remedy than to lay it to "marriages and divers other Ties and the
nursing of Infant Children among the English and the Irish, and
Forewarnings and Espyals made on both Sides by the Occasions
aforesaid," and it therefore forbids such marriages to be contracted
between English and Irish, "and other private Ties and nursing of
Infant Children." The statute notes that these dissensions do not
occur only between the English and those of Irish blood, but as well
between the English of birth and the English of descent living in
Ireland; a condition which has, indeed, continued till to-day, Parneil
and a host of famous Irishmen being of pure English descent.
In 1360 the exportation of corn is forbidden. We now, therefore, have
that principle applied to wool, iron, and bread-stuffs--corn, of
course, meaning all kinds of grain. There is another statute requiring
Parliament to be held once a year; and, more interesting, that pleas
should be made in the English language, for "the French tongue is
much unknown in said Realm of England," but the judgments are to be
enrolled in Latin. In 1363 another statute concerning diet and apparel
fixes the price of poultry, a young capon three pence, an old one four
pence, a hen two pence, and a pullet one penny "for the great Dearth
that is in many Places." Department stores are anticipated by a clause
complaining that the merchants called grocers do engross all manner
of merchandise "by Covin and Ordinance made betwixt them, called the
Fraternity and Gild of Merchants," and anticipates the prejudice
against the modern department store by ordaining that merchants shall
deal in only one sort of merchandise; and furthermore handicraftsmen
are allowed to "use only one Mystery," that is, trade--which also
anticipates a principle dear to modern trades-unions. The statute then
regulates the diet and apparel of servants. They may eat once a day of
flesh or fish, but the rest of their diet must be milk or vegetarian.
Their clothing may not exceed two marks in value. People of handicraft
and yeomen, however, are allowed to wear clothing worth forty
shillings, but not silk, silver, nor precious stones. Squires and
gentlemen of a landed estate less than one hundred pounds a year may
wear clothing to the value of four marks and a half, but not gold nor
silver, precious stones nor fur. Merchants having goods to the value
of five hundred pounds may dress like esquires and gentlemen to a
value of six marks. Clerks, that is to say, persons having degrees
from colleges, may dress like knights of the same income and may
wear fur in winter and lawn in summer, and clothiers make clothes
accordingly and drapers and tailors charge proportionately. This most
interesting effort to interfere with private life stops short of
regulating the use of wine or beer; and tobacco had not yet been
discovered. It is all the more interesting to note that it was found
so intolerable that it was repealed the following year; and little
effort since then has been made to regulate the diet or dress or
expenditure of Englishmen; it was declared in memorable language that
"which was ordained at the last Parliament, of Living and of Apparel,
and that no English Merchant should use but one Merchandise" be
repealed, and "It is ordained, That all People shall be as free as
they were before the said Ordinance," and "all Merchants, as well
Aliens as Denizens, may sell and buy all Manner of Merchandises, and
freely carry them out of the Realm ... saving the Victuallers of Fish
that fish for Herring and other Fish, and they that bring Fish within
the Realm." Thus, after trying the opposite, we find triumphantly
established in the middle of the fourteenth century the great English
principle of freedom of life and trade. The legislation of this great
reign ends with the prohibition of practising lawyers from sitting in
Parliament and an ordinance that women might not practise law or "sue
in court by way of Maintenance or Reward, especially Alice Perrens,"
Alice Perrers or Pierce having become unpopular as the mistress of the
elderly king. Our courts have usually held that there is no common-law
principle forbidding women to practise law, but from this ancient
statute it would appear that such decisions are erroneous.
(1381) In 5 Richard II is a law absolutely forbidding the sale of
sweet wines at retail. This law, with the testimony of Shakespeare,
goes to show that England liked their wines dry (sack), but the act is
repealed the following year, only that sweet wines must be sold at
the same price as the wines of the Rhine and Gascony; and in the same
year, more intelligent than we, is a statute permitting merchants to
ship goods in foreign ships when no English ships are to be had. In
1383, according to Spence, 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.
The rest of the statutes of Richard II are taken up with the important
statutes concerning riots and forcible entries, and regulating labor,
as set forth in the last chapter.
The troublesome reign of Richard II closes with an interesting attempt
to make its legislation permanent, as has sometimes been attempted
in our State constitutions. The last section of the last law of King
Richard declares "That the King by the Assent of the said Lords and
Knights [note it does not say by consent of the Commons], so assigned
by the said Authority of Parliament, will and hath ordained that ...
to repeal or to attempt the repeal of any of the said Statutes
is declared to be high treason," and the man so doing shall have
execution as a traitor. Notwithstanding, in the following year the
first act of Henry IV repeals the whole Parliament of the 21st of
Richard II and all their statutes; that it be "wholly reversed,
revoked, voided, undone, repealed, and adnulled for ever"--so we with
the States in rebellion, and so Charles II with the acts of Cromwell.
(1400) Under Henry IV is the first secular law against heresy, making
it a capital offence. Upon conviction by the ordinary the heretic
is to be delivered to the secular arm, _i.e._, burnt. Note that the
trial, however, still remains with the ordinary, _i.e._, the clerical
court. Under Henry IV also we find a statute banishing all Welshmen
and forbidding them to buy land or become freemen in England; and
under Henry VI the same law is applied to Irishmen, and in the next
reign to Scotchmen as well. The Irishmen complained of, however,
were only those attending the University of Oxford. In 1402 we find
Parliament asserting its right to ratify treaties and to be consulted
on wars; matters not without interest to President Roosevelt's
Congress, and in 1407 we find definite recognition of the principle
that money bills must originate in the lower house.
For the purpose of his Chicago speech, it is a pity that Mr. Bryan's
attention was never called to the Statute of the 8th of Henry VI,
which forbids merchants from compelling payment in gold and from
refusing silver, "which Gold they do carry out of the Realm into
other strange Countries." An enlightened civic spirit is shown in the
Statute of 1433, which prohibits any person dwelling at the Stews in
Southwark from serving on juries in Surrey, whereby "many Murderers
and notorious Thieves have been saved, great Murders and Robberies
concealed and not punished." And the statute sweepingly declares
everybody inhabiting that part of Southwark to be thieves, common
women, and other misdoers. Fortunately, this was before the time that
John Harvard took up his residence there.
In 1430 was the first statute imposing a property qualification upon
voters.
In 1452 is a curious statute reciting that "Whereas in all Parts
of this Realm divers People of great Power, moved with unsatiable
Covetousness ... have sought and found new Inventions, and them
continually do execute, to the Danger, Trouble and great abusing of
all Ladies, Gentlewomen, and having any Substance ... perceiving their
great Weakness and Simplicity, will take them by Force, or otherwise
come to them seeming to be their great Friends ... and so by great
Dissimulation ... get them into their Possession; also they will
many Times compell them to be married by them, contrary to their own
liking." A writ of chancery is given to persons so constrained of
their liberty to summon the person complained of, and if he make
default be outlawed--an early example of "government by injunction"
applied to other than labor disputes! I know no example of an American
statute to this effect; presumably our women are lacking in "weakness
and simplicity."
In 1463 is another curious sumptuary law prescribing with great care
the apparel of knights, bachelors, gentlemen and their wives, making
it criminal for tailors to make cloths not according to this fashion,
and for shoemakers to make boots or shoes having pikes more than two
inches long. No draper shall sell or women wear hose to the value of
more than fourteen pence, nor kerchiefs worth more than ten shillings,
but scholars of the universities "may wear such Array as they may,"
nor does the ordinance extend to judges or soldiers. The provision
against long pikes to shoes appears to be considered of importance,
for it was re-enacted in 1464. I have searched in vain for a statute
relating to hatpins. Again in 1482 there is another long statute
concerning apparel which seems to have been considered under the reign
of Edward IV quite the most important thing in life. A more manly
clause of the statute is concerned with the benefits of archery to
England, reciting that "In the Time of the victorious Reign ... the
King's Subjects have virtuously occupied and used shooting with their
Bows, whereby and under the Protection of Almighty God, victorious
acts have been done in Defence of this Realm," and the price of long
bows of yew is limited to three and four pence. The statutes now begin
to be in English.
In 1488 the Isle of Wight is to be repeopled with English people for
"defence of the King's auncien ennemyes of the realme of Fraunce."
In 1491 all Scots are to depart the realm within forty days upon pain
of forfeiture of all their goods; it is not recorded that any remained
in England. In 1491 Henry VII levied an amazingly heavy tax upon
personal property, that is to say, two fifteenths and tenths upon all
"movable goodes cattales and othre thinges usuelly to suche xvmes and
xmes contributory," with the exception of Cambridge and a few other
favored towns. In 1495 the famous Oklahoma statute is anticipated by a
law regulating abuses in the stuffing of feather beds.
In 1503 a statute recites that the "Longe Bowes hathe ben moche used
in this his Realme, wherby Honour & Victorie hathe ben goten ... and
moche more drede amonge all Cristen Princes by reasone of the same,
whiche shotyng is now greatly dekayed." So this mediaeval Kipling
laments that they now delight in cross-bows to the great hurt and
enfeebling of the Realm and to the comfort of outward enemies,
wherefore cross-bows are forbidden except to the lords, on penalty of
forfeiture of the bow.
(1509) The reign of Henry VIII was one of personal government; and
in those days personal government resulted in a small output of
law-making by Parliament. Indeed, after 1523, under Cardinal Wolsey,
Parliament was not summoned for seven years. In 1539 the attempt to do
without popular legislation is shown in the act already referred to,
giving royal proclamations of the king and council the force of law, a
definite attempt at personal government which might have resulted in
the establishment of an administrative law fashioned by the executive,
had it not been for the sturdy opposition of the people under weaker
reigns. But under the reign of Henry VIII also the great right of free
speech in Parliament was established; and in 1514 the king manumitted
two villeins with the significant words "Whereas God created all
men free," vulgarly supposed to be original with our Declaration of
Independence.
The important principle of a limitation for prosecutions by the
government for penal offences dates from the first year of Henry
VIII, the period being put, as it still is, at three years; and it is
expressed to be for better peace and justice and to avoid the taking
up of old charges after the evidence has disappeared.
In 1515 is another act of apparel providing, among other things, that
the king only shall wear cloth-of-gold or purple color, or black
fur, and that no man under the degree of a knight may wear "pinched
Shirts." In this reign also comes the famous Statute of Wills,
permitting the disposal of land by devise, the Statute of Uses
and other matters primarily of interest to the lawyer; the first
Bankruptcy Act and the first legislation recognizing the duty of the
secular law to support the poor, perfected only under Queen Elizabeth;
but in the latter part of his reign there is little law-making that
need concern us. The Statutes of Apparel continue, and the statutes
fixing the price of wine, which, indeed, seems to have been the last
subject so regulated. There is the "Bloody Statute" against heresy,
and the first act against witchcraft, Tindale's translation of the
Bible is prohibited, and women and laborers forbidden to read the New
Testament. There is the first act for the preservation of the river
Thames, and also for the cleaning of the river at Canterbury; and the
first game law protecting wild-fowl, and a law "for the breeding of
horses" to be over fifteen hands. The king is allowed to make bishops
and dissolve monasteries; physicians are required to be licensed. The
regrating of wools and fish is again forbidden, and finally there is
an act for the true making of Pynnes; that is to say, they are to be
double headed and the heads "soudered fast to the Shanke."
We are now approaching the end of our task, for the legislation after
James I, with the exception of a few great acts, such as the Statute
of Frauds and the Habeas Corpus Act, hardly concerns us as not being
part of our inherited common law. The reigns of Elizabeth and James
are to us principally notable for the increase of the feeling against
monopolies, ending in the great Statute of James I. While we still
find restrictions upon trade in market towns or in the city of
London, they always appear as local restrictions and are usually soon
repealed. The prejudice against regrating, that is to say, middlemen,
continues, as is shown in a Statute of Edward VI, providing that no
one shall buy butter or cheese unless to sell the same only by retail
in open shop. That is to say, there must be no middleman between the
producer and the retailer, and a definition of the word "retail" is
given. In 1552, the 7th of Edward VI is a celebrated statute called
the Assize of Fuel, applied to the city of London, notable because
it forbids middlemen and provides that no one shall buy wood or coal
except such as will burn or consume the same, "Forasmuche as by the
gredye appetite and coveteousnes of divers persons, Fuell Coles and
Woodd runethe many times throughe foure or fyve severall handes or
moe before it comethe to thandes of them that for their necessite doo
burne ... the same"--under penalty of treble value.
In 1551 is the last elaborate act against regrators, forestallers, and
engrossers, made perpetual by 13 Elizabeth, and only repealed in 1772.
It recognizes all previous laws against them, but recites that they
have not had good effect, and therefore in the first section gives a
precise definition. _Forestalling_--the buying of victuals or other
merchandise on their way to a market or port, or contracting to buy
the same before they arrive at such market or city, or making any
motion for the enhancing of the price thereof, or to prevent the
supply, that is, to induce any person coming to the market, etc., to
stay away. _Regrating_ is narrowed to victuals, alive or dead, and to
the reselling them at the fair or market where they were bought or
within four miles thereof; and _engrossing_ is given a definition very
similar to our "buying of futures." That is to say, it is the buying
or contracting to buy any corn growing in the fields or any other
victuals within the Realm of England with intent to sell the same
again. The penalty for all such offences is two months' imprisonment
and forfeiture of the value of the goods, but for a third offence the
person suffers forfeiture and may be imprisoned. There is an important
recognition of modern political economy made in the proviso that
persons may engross corn, etc., when it sells at or below a certain
price, not, however, forestalling it.
In 1554 is a statute for the relief of weavers, prohibiting "the
engrossing of looms," thus anticipating one of the principal doctrines
of Lassalle. In the same year, 1st of Philip and Mary, is a statute
prohibiting countrymen from retailing goods in cities, boroughs, or
market towns, but selling by wholesale is allowed, and they may sell
if free of a corporation; and so cloth may be retailed by the
maker, and the statute only applies to cloth and grocery wares, not
apparently to food.
(1562) From the reign of Elizabeth dates the great Poor Law, enacted
and re-enacted in 1562, 1572, and finally in 1601, recognizing fully
the duty of the parishes to support their poor, but providing a system
of organized charity and even licensing beggars in towns too poor to
support all their paupers. Side by side with this, however, went the
severe statutes against idlers and vagabonds recited in the last
chapter. The first game laws date from about this period, prohibiting
the snaring of birds and establishing close seasons, and also in 1584
we find the first forestry law for the preservation of timber in the
southern counties. There is no provision for seeding, but the use in
the iron works of wood for fuel is carefully regulated, and in order
to preserve the forests in Sussex, Surrey, and Kent, it is provided
that no new iron mills, furnaces, etc., shall be erected in those
counties, showing the relative value that our forefathers placed upon
these matters. The first incorporation of a trading company seems
also to date from the time of Elizabeth. That is to say, the Muscovy
Company was chartered in 1564, and the Merchant Adventurers for the
discovery of new trades in 1566. In this same year is the celebrated
act of Speaker Onslow, in telling Elizabeth that she is subject to the
common law; from henceforward we are in modern times. In 1534 Henry
VIII declared himself supreme head of the Church of England; five
years later with the dissolution of monasteries came the "Bloody
Statute," whereby he attempted to vindicate his orthodoxy. The act was
entitled "An Act abolishing diversity of opinion on certain articles
concerning the Christian Religion," and insisted upon the sacraments,
celibacy, masses, and confessions, but in 1548 the marriage of priests
was made lawful, and in 1566 the pope forbade attendance at the
English Church. Thus, Roman law was expelled in the first two or
three centuries after the Conquest, the Roman Church in the sixteenth
century, and it remained for the seventeenth to struggle with the
last serious attempt at the Roman or Continental theory of personal
government.
(1602) King James at his accession asserted the divine right, and his
legislation, other than special bills for the restoration of attainted
persons, or the confirmation of titles, is scanty, his reign being
principally occupied with the conflict with Parliament, which he
forbade from meddling with affairs of state. In the first year of his
reign, the Statute of Laborers of Elizabeth was confirmed, as well
as that against rogues and vagabonds; the ninth act of his first
Parliament was "To restraine the inordinate hauntinge and tiplinge in
Innes and Alehouses," and, indeed, much of his legislation is aimed at
what should properly be called "sins" rather than "crimes"; the next
act after this was one to restrain "all persons from Marriage until
their former Wyves and former Husbandes be deade." And next came a
statute against witchcraft. In 1603 is an act to prohibit people from
eating anything but fish in Lent, entitled "An Acte to encourage
the Seamen of England to take Fishe, wherebie they may encrease to
furnishe the Navie of England." There was an act for the relief of
skinners, and a charter given by Queen Elizabeth in the twenty-first
year of her reign to the Eastland merchants for a monopoly of trade in
those countries; it would be interesting could these early corporation
charters and monopoly grants be printed, for they are not usually
found in the statutes of the realm. In 1605 stage players are
forbidden from swearing on the stage. In 1606 is an elaborate act for
the regulation of the spinning, weaving, dyeing, and width of woollen
cloth, and the same year is an act for "repressinge the odious and
loathsome synne of Drunckennes," imposing a penalty or fine and the
stocks. In 1609 an act of Edward IV is revived, forbidding the sale of
English horns unwrought, that people of strange lands do come in and
carry the same over the sea and there work them, one of the latest
statutes against the export of raw material. In the last year of his
reign comes the great Statute of Monopolies noted in the last chapter,
and an act extending the benefit of clergy to women convicted of small
felonies, for which they had previously suffered death, and another
act for the repression of drunkenness. And the last statute we shall
note, like the first, is concerned with regrating and engrossing;
that is to say, it re-enacts the Statute of Edward VI prohibiting
the engrossing of butter and cheese, and prohibiting middlemen. Thus
restraint of trade and freedom of labor begin and end as the most
usual subjects of English popular law-making.
* * * * *
A few words upon Cromwell's legislation may be of interest; for though
it was all repealed and left no vestige in the laws of England, it had
some effect upon the legislation of Massachusetts, Rhode Island, and
Connecticut. Under the Commonwealth there was but one legislative
chamber, and over that the protector exercised far more control than
had been ventured by the maddest Stuart or Tudor. One would suppose
that a period which represented the supremacy of the common people
would be marked by a mass of popular legislation. Quite the contrary
is the fact. In the first place, the Instrument of Government,
prepared by the so-called Barebones Parliament, was supposed to be a
sort of constitution; as a symbol of the change from absolute personal
government to constitutional government under this Instrument,
Cromwell exchanged his military sword for the civil common sword
carried by General Lambert, who was at the head of the deputation
praying the Lord General to accept the office of protector. It vested
the supreme power in him, acting with the advice of the Council, with
whose consent alone he could make war, and that Council was to choose
future protectors. The legislative power resided in a single chamber,
upon which he had a veto. There was an ordinary property qualification
for voting, and religious liberty was guaranteed, except as to the
papists. Only one Parliament, as a matter of fact, assembled under
this Instrument of Government, and the very first legislative function
it endeavored to exercise seemed to offend Cromwell, who promptly
dissolved it with a file of soldiers. That was the end of
constitutional government under the protector. The laws of the Rump
Parliament, and the Barebones Parliament, are entirely omitted from
the official Statutes of England, and only to be found in a rather
rare volume. They mostly concern military affairs. The real reforms of
government, like the abolition of the Star Chamber and feudal tenures,
had in fact been carried out under Charles I.
A further word should be given to the origin of the business
corporation, an almost accidental event, which has affected the world
of trade and affairs more than the invention of printing, of the
bill of exchange, and the Law Merchant combined. It would have been
perfectly possible for the world to get on and do business without
the modern corporation--without the invention of a fictitious person
clothed with the enormously powerful attributes of immortality
and irresponsibility. That is to say, men can act together or in
partnership, but they are mortal, and at their death their personal
powers end. The corporation may be immortal, and its powers, as well
as its acquisitions, increase forever. Men are liable with all their
estates for their contracts and obligations. Men in corporations are
only liable to the amount of their aliquot share of stock, or often
not at all. Corporations may dissolve, and be reborn, divide, and
reunite, swallow up other corporations or often other persons.
Individuals cannot do so except by the easily broken bond of
co-partnership.
Trading corporations for profit were _practically_ unknown to the
Romans, or even to Continental countries--scholastic precedents
and the Venetian _commendam_ to the contrary notwithstanding. They
developed in England first out of the guild or out of the monastery;
but the religious corporation, although regarded with great jealousy
in the Statutes against Mortmain, which show that from the earliest
times our ancestors feared the attribute of immortality that
characterizes the corporation, have never had the principle of
limited, or no, personal liability. That, indeed, is said to have been
invented by the State of Connecticut (see below, chapter 10). They
were, however, often clothed with monopoly. In 1643 we find the
Fellowship of Merchant Adventurers of England, a business corporation,
with power to levy money on the members, and exclusive powers to trade
in its own products, which seem to have been clothing and woollen
manufactures. We have already mentioned the earlier charter to the
Eastland merchants. Mr. James Bryce has pointed out to me that the
objection of monopoly would not have been felt so much to apply to a
corporation chartered only for purposes of trade out of England. It
would seem, therefore, that the invention and growth of the secular
corporation was an accident of the legislation of Queen Elizabeth's
time; and arose rather from this desire to get a monopoly, than from
any conscious copying of the trade guilds, still less the religious
corporations of earlier dates; for the trade guilds were nothing but
a more or less voluntary association of men bound together in a very
indefinite bond, hardly more of a permanent effective body than any
changing group of men, such as a political party is, from year to
year; the only bond between them being that they happen at some
particular time to exercise a certain claim at a certain place; and
even the trade guilds, as we know, had somewhat the course of a modern
corporation. They became overgrown, aristocratic, swollen in fortune,
and monopolistic in tendency. To some extent in the English cities and
towns, and still more in France, they became tyrannous. And in the
previous reign of Henry VIII all religious corporations had been
dissolved.
Not much, perhaps, remained for Cromwell's Parliament to do. The
abuses of law-making, of the Star Chamber, and other non-common-law
courts, of personal government, had been swept away under Charles I.
In 1644 the Book of Common Prayer was abolished. In 1646 the bishops
were abolished, in 1648 the king and the House of Peers, and in 1649
the king was beheaded. Cromwell's Parliament was more interested
in the raising of money and the dividing up royal lands than in
constructive legislation. They did find time to forbid the planting
of tobacco in England, and to pass an act furthering the religion of
Jesus Christ in New England; also a society for the foundation of the
gospel in New England, with power to raise money or make collections
for that purpose, provided always, they did not carry any gold,
silver, plate, or money outside of England. An act claiming that "the
Indians are renouncing their heathen sorceries and betaking themselves
to English schools and universities," possibly refers to one Indian
graduate of Harvard, Caleb Cheeshahteaumuck, of the class of 1665.
There are statutes concerning the impressing of seamen; a bankruptcy
act, a statute authorizing secular marriage without a priest or church
ceremony, and the act for preferring veterans in the Spanish War in
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