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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 miere 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. 136.
By the Act 12: Geo. III., chap. 71, A.D. 1772, the statutes as to forestalling, regrating, and engrossing were repealed. The intention evidently was both to repeal them, and to abolish the offenses.
The reason given for the repeal in the preamble of the Act is as follows: “ Whereas it hath been found by experience, that the restraints laid by several statutes upon the dealing in corn, meal, flour, cattle, and sundry other sorts of victuals, by preventing a free trade in the said commodities, have a tendency to discourage the growth, and to inhance the price of the same ; which statutes, if put in execution, would bring great distress upon the inhabitants of many parts of this Kingdom, and in particular upon those of the cities of London and Westminster."
Although it was evidently the intention of the legislature, by this statute not merely to repeal the former statutes as to forestalling, regrating, and engrossing, but also to abolish the offenses, Lord Kenyon nevertheless held in Rex v. Waddington, 1 East, 167, that those offenses had been offenses at common law; and consequently that the offenses had not been abolished by the mere repeal of the statutes. To meet this situation, a later statute was passed, 7 & 8 Victoria, Cap. XXIV., A.D. 1844, which in express terms abolished the offenses. No authority exists, so far as I have been able to find, for this decision of Lord Kenyon. It is somewhat singular, too, that the original statutes creating those offenses should have been passed, if the offenses existed already. It is also very clear, that the lawyers who drafted the repealing act would have abolished the offenses, if they had supposed that the offenses still continued to exist at common law.
In Rex v. Waddington there was a remarkable array of counsel, including Erskine, for the prosecution ; and the indications are very strong, that the prosecution was merely the work of business rivals. The prosecution was not for conspiracy, but for the mere offense of engrossing, by a single individual. Lord Kenyon, in his opinion, dilated on the dreadful dangers from such practices on the part of single individuals. With the exception of this Waddington case, my examinations have failed to find any cases of trials for either of those antiquated offenses. It is, therefore, an accurate statement, that the statutes creating these offenses by individuals were virtually ignored, almost from the time of their passage. That fact admits of only one explanation, which is, that no practical injury ever resulted from the business of buying and selling at wholesale, which is invariably conducted with the intent of selling at an advanced price.
The same thing can be said as to combinations to put up the prices of merchandise on the part of several individuals in combination. Without doubt there were numberless instances of such combinations. Such combinations, too, under the statutes above mentioned were criminal offenses. But we find no records in the reports, of prosecutions for such offenses, unless Rex v. Norris, before cited, be such a case.(a) The evident reason is that such combinations did no harm.
With these repealing and abolishing statutes, the law in England was finally established, permitting any and all efforts to merely raise prices, whether of labor or merchandise, whether on the part of single individuals or individuals in combination, provided those efforts were limited to the prices of the labor and merchandise of the parties making the attempts, and provided also that the efforts were accompanied by no legal injury to others. Contracts of combination, to raise or maintain prices, or to prevent competition, were not enforced by the courts. But they were never held to be criminal. Nor were they held to be violations of the legal rights of other individuals.
As to such combinations, the most important and instructive case in the English reports, so far as my read
(a) Rex v. Norris, 2 Ld. Kenyon, 300.
ing goes, is the case of Mogul Steamship Company v. McGregor, (a) wherein the law as to contracts in restraint of trade had a more thorough discussion than in any other which has coine within my knowledge.
The action was brought against the combining parties as defendants, by the Mogul Steamship Company, the owner of a line of steamships which had been driven out of a contested field by the combination, to enjoin the further operation of the combination to the injury of the plaintiff. The cause came on for hearing in the first in. stance before Lord Chief Justice Coleridge, on a motion for an injunction. The injunction was refused, after elaborate argument by the leaders of the English bar, the present Lord Chief Justice Russell being leading counsel for the defense, Sir Henry James being the leading counsel for the complainant. Lord Coleridge's judgment was affirmed in the Court of Appeal, and afterward in the House of Lords. In the Court of Appeal the case was heard before Lord Esher, Master of the Rolls, with Judges Bowen and Fry, each of whom delivered an opinion. In the House of Lords opinions were delivered by Lord Halsbury, Lord Watson, Lord Bramwell, Lord Morris, Lord Field, and Lord Hannen ; and there was a
1 memorandum of concurrence by Lord Macnaghten. The Master of the Rolls alone dissented.
In all there were ten opinions, by the first jurists in England. It is seldom that any case has received a consideration so exhaustive. The principles and authorities of the English law bearing on the case were thoroughly examined, and carefully stated.
The point decided was the legality, under the English law, of a combination of shipowners, formed for the avowed purpose of controlling prices, and preventing competition-of preventing all competition between the parties combining, and destroying all competition by outsiders. It was, too, the case of a combination of com
(a) Law Rep. 21 Q. B. Div. 544, 23 Q. B. Div. 598, App. Cas. 1892, 25.