Popular Law-making Part 3

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 s.h.i.+llings, 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 Sat.u.r.day 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 const.i.tutional 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 pa.s.sed 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 members.h.i.+p. 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 ma.s.ses 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 inst.i.tuted 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 G.o.d, 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 Doc.u.ment 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 a.s.sociated 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 Ma.s.sachusetts, 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 Const.i.tution 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 Lancas.h.i.+re, 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 s.h.i.+llings 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 (pet.i.tions 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 a.s.semblies, 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 s.h.i.+llings a year, with money for clothing, eleven s.h.i.+llings; and women servants ten s.h.i.+llings, with clothing price of four s.h.i.+llings, 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 a.s.semblies 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 s.h.i.+pwrights, 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 c.o.ke, was originally established to protect subjects against the offences and oppressions of great men by extortion, frauds, riots, unlawful a.s.semblies, 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, fellows.h.i.+ps 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 const.i.tutional 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, s.h.i.+pwrights, s.h.i.+p 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 a.s.sault 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 gla.s.s, 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 st.u.r.dy vagabonds and "rufflers found idling after being a.s.signed 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 extinguis.h.i.+ng 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 pa.s.sed 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 const.i.tutional 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 const.i.tute 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 a.s.sembling 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 a.s.sembling for such purpose are subject to fine and imprisonment with treble damages to parties injured, and if forty persons so a.s.semble 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 s.h.i.+llings 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 n.o.bleman'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 apprentices.h.i.+p 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 st.u.r.dy 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 s.h.i.+llings. 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 punis.h.i.+ng of tramps and beggars.

In 1571 also is the first formal complaint of monopolies by the Commons. Coal, oil, salt, vinegar, starch, iron, gla.s.s, 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, gla.s.s, 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 Was.h.i.+ngton.

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 a.s.surance 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 fellows.h.i.+ps 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 cla.s.sed among the const.i.tutional doc.u.ments 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 Mitch.e.l.l, 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, pet.i.tioned 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 quant.i.ties by religious corporations, was a true constructive statute, and the principle it establishes has grown ever since. The law regards with jealousy the owners.h.i.+p 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 pa.s.sing 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 Ma.s.sachusetts, 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.