public control of common carriers was exercised by statute. The Act 3 William and Mary, Cap. XII., sect. 24, provided: "That the justices of the peace of every county and other place. . . shall have power or authority, and are hereby enjoined and required at their next respective quarter or general sessions after Easter Day, yearly, to assess and rate the prices of all land carriage of goods whatsoever, to be brought into any place or places within their respective limits and jurisdictions, by any common waggoner or carrier, and the rates and assessments so made to certify to the several mayors and other chief officers of each respective market town within the limits and jurisdictions of such justices of the peace, to be hung up in some publick place in every such market town, to which all persons may resort for their information; and that no such common waggoner or carrier shall take for carriage of such goods and merchandises above the rates and prices so set, upon pain to forfeit for every such offense the sum of five pounds, to be levied by distress and sale of his and their goods, by warrant of any two justices of the peace, where such waggoner or carrier shall reside, in manner aforesaid, to the use of the party grieved." The Act 2 & 3 Will. IV., c. 120, regulated duties, licenses, number of passengers, luggage, etc., as regarded stage carriage. By the Act 2 & 3 Victoria, chap. 66, sect. 1, those duties were changed. The Railway and Canal Traffic Act, 1854, 17 & 18 Vict., c. 31, provided that "every railway company, canal company and railway and canal company shall, according to their respective powers, afford all reasonable facilities for the receiving and forwarding and delivering of traffic upon and from the several railways and canals belonging to or worked by such companies respectively, and for the return of carriages, trucks, boats and other vehicles; and no such company shall make or give any undue or unreasonable preference or advantage to or in favor of any particular person or company, or any particular description of traffic, in any respect whatsoever, nor

shall any such company subject any particular person or company, or any particular description of traffic, to any undue or unreasonable prejudice or disadvantage in any respect whatsoever; and every railway company and canal company and railway and canal company having or working railways or canals, which form part of a continuous line of railway or canal or railway and canal communication, or which have the terminus, station or wharf of the one near the terminus, station or wharf of the other, shall afford all due and reasonable facilities for receiving and forwarding all the traffic arriving by one of such railways or canals by the other, without any unreasonable delay, and without any such preference or advantage, or prejudice or disadvantage as aforesaid, and so that no obstruction may be offered to the public desirous of using such railways or canals or railways and canals as a continuous line of communication, and so that all reasonable accommodation may, by means of the railways and canals of the several companies, be at all times afforded to the public in that behalf.”

Section third provided, that any company or person complaining against any such companies or company of anything done, or of any omission made, in violation or contravention of the act, could apply in a summary way by motion or summons to the Court of Common Pleas, or to a judge thereof; that the Attorney-General could also apply to the court or a judge thereof, to hear and determine the matter of such complaint, and in the discretion of the court could direct and prosecute by engineers, barristers or other persons, all such inquiries as might be deemed necessary to enable the court or judge to form a just judgment on the matter of such complaint; and if it appeared to the court or judge on such hearing, and on the report of such persons, that anything had been done or omission made in violation or contravention of the act, a writ of injunction could be issued restraining the company or companies from further continuing such violation or contravention, and enjoining obedience

88 ENGLISH LAW AS TO PUBLIC EMPLOYMENTS.

thereto. The section also provided for the issuing of a writ of attachment against any one or more of the directors of the company, or against any owner, lessee, director or other person failing to obey the writ, and for an order directing the payment by any of such companies of any such sum of money as the court or any judge might determine, not exceeding 200 pounds for every day of a failure to obey the injunction.

By the Act 36 & 37 Victoria, Chap. 48, the Regulation of Railways Act, 1873, three railway commissioners were appointed, to whom was transferred the jurisdiction exercised by the Court of Common Pleas under the Railway and Canal Act, 1854.

It would not be within the purview of this present examination to go into any detailed statement of the cases which have arisen, or of the decisions that have been made, under those acts. It is sufficient to say, that the practice is eminently simple, as is usually the case in all modern English provisions for the administration of justice, and the act has been found, so far as my information goes, amply sufficient to redress any substantial injuries done by common carriers to the public.

It is evident, from this short statement, that the course of the English law as to common carriers has been directly the reverse of its course as to private employments. In the early stages of the English law, the attempts by the state to regulate private employments and private trade were manifold. On the other hand, the regulation and control of common carriers was comparatively imperfect. As to private employments, the growth of the law has been continuous to its present condition of virtually complete non-interference. As to common carriers, on the other hand, the state control is now practically unrestricted, and is ample for the protection of all rights of the citizen. The growth in the one branch of the law has been from a condition of minute and annoying restriction to one of complete freedom. In the other, it has been from a condition of comparative freedom to one of complete and adequate supervision and control.

CHAPTER III.

THE COURSE OF THE AMERICAN LAW AS TO PRIVATE EMPLOYMENTS UNTIL CERTAIN RECENT DECISIONS.

RECENT criminal prosecutions in this country for mere combinations to raise or maintain the prices of merchandise of the parties combining, or to prevent competition in the sale of merchandise between the parties combining, though arising under special statutes, have almost invariably been classified, in the decisions of the courts under those statutes, as "Conspiracies to commit acts injurious to trade or commerce.

Before considering those decisions, it is necessary to ascertain exactly the course of the law down to the time when the statutes in question were passed. We shall also thereafter trace the course of judicial interpretation of those statutes down to the time of the making of those decisions.

In the first place, we have the position, that under the English common law, independently of any statute, combinations of this character were not unlawful, either civilly or criminally. They violated no legal right, of any individual, or of the public. The Mogul Steamship case conclusively establishes that. Such combinations are no novelty. They have long been known to the English law, and have been made the subject of adjudication in the English Courts. It had long been the established law in England, that combinations of that character would not always be enforced by the Courts. But that was all. They were lawful.

In the next place, it is evident, as already stated, that in England the criminal law as to combinations to raise

prices of merchandise, and as to combinations to raise prices of labor, rested on the same footing; that both became crimes only by statute; that the statutes as to both formed part of the ancient general scheme of legislation for state control of prices; and that those statutes had become virtually obsolete in England long before the American colonies separated from the mother country.

That this was the situation in England will be made still more clear from the treatment of the law of conspiracy by Sir William Blackstone. The entire text of Blackstone on the crime of "conspiracy” is to be found in his chapter" Of offences against public justice." The fifteenth of those offences is mentioned as follows:

"A conspiracy also to indict an innocent man of felony falsely and maliciously, who is accordingly indicted and acquitted, is a farther abuse and perversion of public justice; for which the party injured may either have a civil action by writ of conspiracy, (of which we spoke in the preceding book,) or the conspirators, for there must be at least two to form a conspiracy, may be indicted at the suit of the king, and were by the ancient common law to receive what is called the villenous judgment, viz., to lose their liberam legem, whereby they are discredited and disabled as jurors or witnesses; to forfeit their goods and chattels, and lands for life; to have those lands wasted, their houses razed, their trees rooted up, and their own bodies committed to prison. To this head may be referred the offence of sending letters threatening to accuse any person of a crime punishable with death, transportation, pillory, or other infamous punishment, with a view to extort from him any money or other valuable chattels. This is punishable by statute 30 Geo. II., c. 24, at the discretion of the court with fine, imprisonment, pillory, whipping, or transportation for seven years."

But there is no mention, in that connection, of conspiracies in restraint of trade, or of conspiracies to raise or maintain prices.

It is not to be maintained, of course, that, because Blackstone omits to mention any other conspiracies, no others existed. But this fact, taken in connection with the Mogul Steamship case, and with the other facts