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in the said realm the ships of the said realm, and not strange ships ; so that the owners of the said ships take reasonable gains for the freight of the same."
In the same line of legislation, for like purposes, were the class of statutes which were absolutely prohibitory of trade and commerce of certain classes. Such was the Act 14 Rich. II., Cap. V., which is as follows:
5. CAP. V.
“ No denizen shall transport any merchandise of the staple forth of the realm.
“ Irem, That no denizen carry wools, leather, woolfels, nor lead out of the realm of England, to the parties beyond the sea, upon pain of forfeiture of the same, but only strangers."
So, too, we find specimens of limited prohibition for the purpose of the special protection of a particular locality, of which the 14 Rich. II., Cap. VII., is an example.
“ CAP. VII,
“ Tin shall pass forth of the realm only at Dartmouth.
** ITEM, that the passage of tin out of the realm shall be at the port of Dartmouth, and in no place else."
The statutes against forestalling, regrating, and engrossing, as we have seen, were directed against all attempts to raise prices, whether on the part of single individuals, or of individuals in combination. At an early period, however, statutes were passed giving a criminal character to attempts of the same kind by individuals in combination. It was made a crime, to combine or confederate to raise prices. Combinations to raise prices of labor were placed on the same legal footing with combinations to raise prices of merchandise.
The earliest statute of this nature, which has come under my observation, is the Statute 2 & 3 Edw. VI., c. 15, entitled “The bill of conspiracies of victuallers and craftsmen.'
Prior to this statute the crime of conspiracy was virtually limited to illegal combinations having some connection with the administration of justice. The crime was defined by the Statute 33 Edw. I., quoted by Hawkins in his “Pleas of the Crown." In his definition of the crime of conspiracy Hawkins begins by stating
As to the First Point, viz., Who may be said to be guilty of Conspiracy, Sect. 1. There can be no better rule than the statute of 33 or rather 21 Edw. I., the intent whereof was to make a final definition of CONSPIRATORS, to which purpose it declared “ that conspirators be they that do confeder or bind themselves by oath, covenant, or other alliance, that every of them shall aid and bear the other falsly and maliciously to indict, or cause to indict, or falsly to move and maintain pleas; and also such as cause children within age to appeal men of felony, whereby they are imprisoned and sore grieved ; and such as retain men in the country with liveries or fees for to maintain their malicious enterprizes ; and this extendeth as well to the takers as to the givers ; and to stewards and bailiffs of great lords, who by their seigniory, office, or power, undertake to bear or maintain quarrels, pleas, or debates that concern other parties than such as touch the estate of their lords or themselves.”
No doubt in time other conspiracies came to be recognized in addition to those there described. But so far as appears by any record which has come under my observation, a' mere combination to raise prices was not punishable as a conspiracy prior to the passage of that Act, 2 & 3 Edw. VI., c. 15. The Act was as follows :
Forasmuch as of late divers sellers of victuals, not contented with moderate and reasonable gain, but minding to have and to take for their victuals so much as list them, have conspired and covenanted together to sell their victuals at unreasonable prices ; (2) and likewise artificers, handicraftsmen and labourers have made confederacies and promises, and have sworn mutual oaths not only that they should not meddle one with another's work, and perform and finish that another hath begun, but also to constitute and appoint how much work they shall do in a day, and what hours and times they shall work, contrary to the laws and statutes of this realm, and to the great hurt and impoverishment of the King's majesty's subjects ; (3) for reformation thereof it is ordained and enacted by the King our sovereign lord, the lords and commons in this present parliament assembled, and by the authority of the same, That if any butchers, brewers, bakers, poulterers, cooks, costermongers or fruiterers, shall at any time from and after the first day of March next coming, conspire, covenant, promise or make any oaths, that they shall not sell their victuals but at certain prices ; (4) or if any artificers, workmen, or labourers do conspire, covenant or promise together, or make any oaths, that they shall not make or do their works but at a certain price or rate, or shall not enterprize or take upon them to finish that another hath begun, or shall do but a certain work in a day, or shall not work but at certain hours and times, (5) that then every person so conspiring, covenanting, swearing or offending, being lawfully convict thereof by witness, confession or otherwise, shall forfeit for the first offence ten pounds to the King's highness” with provisions for higher penalties for later offences.
“II. And if it fortune any such conspiracy, covenant or promise to be had and made by any society, brotherhood or company of any craft, mystery or occupation of the victuallers above mentioned, with the presence or consent of the more part of them, that then immediately upon such act of conspiracy, covenant or promise bad or made, over and besides the particular punishment before in this act appointed for the offender, their corporation shall be dissolved to all intents, constructions and purposes."(a)
This statute, it is apparent, was one step in the general system of legislation, of which the purpose was to regulate prices by statute. Under this statute, too, it is apparent, that any combination to raise prices was a crime, even if strictly limited in its intended effect to the prices of the labor or merchandise of the combining parties, and involving no interference with the legal rights of others.
Especially is it to be noted, that this crime of conspir
(a) Repealed with a long list of other statutes, 5 Geo. IV., c. 95.
acy, as defined by the statute itself, consisted in a combination to raise prices and fix hours of work “contrary to the laws and statutes of this realm.” The mere combination constituted no crime provided there were to be no ultimate act which was unlawful. It was necessary that the act, which was the object of the combination, should be in itself a violation of law or statute. And that has always been the well-established doctrine of the English law, as well as of the American law, until the recent decisions before alluded to.
So far as concerned combinations to raise the prices of merchandise, this Act seems to have been a dead letter from the very time of its passage. It was apparently ignored by common consent. Hardly a pretence was ever made of enforcing it. Even as to combinations to raise prices of labor, it practically never formed part of the living body of the English law. Only one conviction, so far as my reading has been able to discover, was ever had under it on a mere combination to raise the price of the labor of the combining parties, when such combination was unaccompanied by an unlawful interference with the legal rights of others. That was the case of Rex v. Journeymen Taylors of Cambridge, 8 Modern, 11. There have, no doubt, been many cases of indictments for combinations by workmen, when those combinations have been accompanied by unlawful interference with the legal rights of others. But the case just mentioned is the only reported case, which I have been able to find, of a conviction, or even of a trial, for a mere combination to raise the prices of the labor of the combining parties. As to prices of merchandise, however, I have been unable to discover a single reported case of a prosecution for a combination to raise or maintain such prices.(a) Black
(a) Rex v. Norris, 2 Ld. Kenyon, 300,can be hardly called a prosecution, being according to the report only an ex parte application for leave to file an information, accompanied by some language from Lord Mansfield.
If, however, that case be deemed a prosecution," it was a case arising
stone, in that part of his Commentaries which treats of the crime of conspiracy, makes no mention of a combination to raise or maintain prices, whether of merchandise or labor. (a) He treats the crime of conspiracy almost entirely as an offense connected with the administration of justice. What he says of it is comprised in his Chapter X. of Book IV., which is entitled “Of Offenses against Public Justice.” Serjeant Hawkins, in his “Pleas of the Crown," follows the same course, and treats the offense of conspiracy almost wholly as one connected with the administration of justice. Neither does he make any mention of a conspiracy to raise or maintain prices, of either labor or merchandise.
But as to mere combinations to raise or maintain the prices of merchandise, I have failed to find any evidence that such a combination was ever practically treated as a criminal offense, save that it was nominally made such by the language of the statute above quoted. That statute was repealed, as a matter of form, by the Statute 5, George IV., chap. 95. But, as a matter of fact, and substance, it had been ignored by the entire community from the time of its passage.
At the time of the writing of Blackstone's Commentaries it had become an obsolete antiquity.
As to the prices of labor, the various later amending statutes as to combinations or conspiracies of workmen all recognized the right of workmen to make combinations merely to raise the prices of their own labor, so long as they refrained from violence, intimidation, or other unlawful interference with the rights of others. So, too, did the opinions of the courts. Other than the case of Rex v. Journeymen Taylors of Cambridge, I find no case in the English reports where workmen were convicted for a mere peaceable and orderly combination to raise their own wages. under the statute before quoted, which, according to the authorities, never formed part of our American law. (a) 4 Blackstone Com. 186.