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Skinner v. Gunton, 1 Wms. Saund. 229..
59 123 123 123 139
Talcott v. Township of Pine Grove, 1 Flippin, U. 8. C. C. 144.......121, 123 Tarleton v. M'Gawley, Peak, N. P. C. 270....
...58, 65 Taylor o. Porter, Hill, 140.....
. 150, 188 Tex. & P. R. Co. v. Interstate Com. Comsn. 162 U. S. 197.
191 Tode v. Gross, 127 N. Y. 480...
U. P. R R. Co. o. Hall, 91 U. S 343..
123 U. 8. 2. E. C. Knight Company, 156 U. S. 1..
174 U. S. o. Trans-Missouri Freight Association, 166 U. 8. 290..135, 170, 176, 188
White o. Wager, 32 Barb. 250 ; 25 N. Y. 328..
67 151 54
RECENT decisions of our highest legal tribunals, especially the United States Supreme Court and the New York Court of Appeals, holding that a mere combination of common carriers, or of private property owners, providing for the fixing of rates and prices for their own property, by one common authority for all, constitutes a crime, are, in my opinion, so far at variance with the tendencies and growth of English and American law, and are so hopelessly in conflict with the fundamental principles of the law of property under a modern constitutional government, that an unusual degree of interest attaches at the present time to an examination of the law applicable to such combinations.
It will be found that much light will be thrown on the questions involved, by a short review of the history of the English and American law relating to state control of trade and commerce. Careful investigation will show, that the recent statutes under which the decisions allud. ed to have been made, are not novelties ; that they are merely revivals of old attempts to protect the community -by statute-against dangers of the imagination ; and we shall find the strongest reason for believing that here again history will repeat itself, and that the legislation and judicial interpretation of the present will follow the same course with the legislation and judicial interpretation of the past.
The rudimentary stages of the growth of the English law abounded in attempts to restrict and control trade and commerce by statute. Those attempts took various forms. The most frequent consisted in the passage of statutes regulating prices, of labor and mer. chandise. Other statutes, as to trade and commerce of specific classes, were completely prohibitory. Such were the statutes prohibiting the export of gold and silver, of wheat and other grains, of wool, of tools and machinery ; and forbidding the departure of artificers from the kingdom to work in foreign countries. Violations of these statutes were made crimes, and were punishable by fine and imprisonment.
One class of these statutes, while not fixing specific prices, for specific classes of merchandise, endeavored to prevent any attempts to raise prices, whether by single individuals, or by combinations of individuals. “Engrossing," as it was termed in the old statutes, which consisted only in buying and holding in quantity, with a view to a subsequent sale at an advance in pricethe object of nearly all wholesale buying—was made a crime ; whether on the part of a single individual, or of individuals in combination, was immaterial. The old English statutes on this branch of the law, if they had been enforced, would have abolished the occupation of wholesale merchant or middleman, and would have virtually compelled every producer to be his own salesman. Trade and commerce, as they exist to-day, and as they necessarily must exist to supply the needs of any large community, would have been made impossible.
In connection with the statutes of the classes already mentioned are to be considered statutes against conspiracies, or combinations, to raise prices, of both labor and merchandise. The earliest of these was the Statute 2 & 3 Edw. VI., c. 15, which made it a crime, for certain classes of tradesmen to combine to raise the prices of the commodities in which they dealt, or for workmen to combine to raise the prices, or limit the hours, of their labor. These statutes were part of the general scheme of state control, of labor, trade, and commerce.
In time all these attempts to control prices and labor were abandoned. From the earliest date, the re