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

herein before stated, makes it quite evident that a mere combination to raise wages or prices, or to prevent competition between the parties combining, was not an indictable conspiracy independently of statute.

Having gone so far, let us next see what was the English criminal law as to acts" injurious to trade and commerce' irrespective of the element of conspiracy.

Here we find that there was a well-recognized class of such crimes. They were enumerated by Blackstone in his Chapter XII. of Book IV., entitled "Of Offences against Public Trade."

Under that classification he enumerates the following: 1. "Owling, so called from its being usually carried on in the night, which is the offence of carrying wool or sheep out of this kingdom, to the detriment of its staple manufacture."

2. Smuggling.

3. Fraudulent bankruptcies.

4. Usury.

5. Cheating.

Thereafter he gives forestalling, regrating, engrossing, and other offences enumerated in the following extract, which it will be well to quote verbatim(a).

66

6. The offence of forestalling the market is also an offence against public trade. This, which (as well as the two following) is also an offence at common law, was described by statute 5 & 6 Edw. VI. c. 14 to be the buying or contracting for any merchandise or victual coming in the way to market; or dissuading persons from bringing their goods or provisions there; or persuading them to enhance the price, when there any of which practices make the market dearer to the fair trader.

"7. Regrating was described by the same statute to be the buying of corn, or other dead victual, in any market, and selling it again in the same market, or within four miles of the place. For this also enhances the price of the provisions, as every successive seller must have a successive profit.

(a) 4 Blackstone, Com., 158-160.

66

8. Engrossing was also described to be the getting into one's possession, or buying up, large quantities of corn, or other dead. victuals, with intent to sell them again. This must of course be injurious to the public, by putting it in the power of one or two rich men to raise the price of provisions at their own discretion. And so the total engrossing of any other commodity, with an intent to sell it at an unreasonable price, is an offence indictable and fineable at the common law. And the general penalty for these three offences by the common law (for all the statutes concerning them were repealed by 12 Geo. III. c. 71) (a) is, as in other minute misdemeanors, discretionary fine and imprisonment. Among the Romans these offences and other mal-practices to raise the price of provisions, were punished by a pecuniary mulct. 'Poena viginti aureorum statuitur adversus eum, qui contra annonam fecerit, societatemve coierit quo annona carior fiat.'

"9. Monopolies are much the same offence in other branches of trade, that engrossing is in provisions: being a licence or privilege allowed by the king for the sole buying and selling, making, working, or using of anything whatsoever; whereby the subject in general is restrained from that liberty of manufacturing or tracing which he had before. These had been carried to an enormous height during the reign of queen Elizabeth; and were heavily complained of by sir Edward Coke, in the beginning of the reign of king James the First but were in great measure remedied by statute 21 Jac. I. c. 3, which declares such monopolies to be contrary to law and void (except as to patents, not exceeding the grant of fourteen years, to the authors of new inventions; and except also patents concerning printing, salt petre, gunpowder, great ordnance, and shot); and monopolists are punished with the forfeiture of treble damages and double costs, to those whom they attempt to disturb; and if they procure any action, brought against them for these damages, to be stayed by an extra-judicial order, other than of the court wherein it is brought, they incur the penalties of præmunire. Combinations

also among victuallers or artificers, to raise the price of provisions, or any commodities, or the rate of labour, are in many cases severely punished by particular statutes; and in general by statute 2 & 3 Edw. VI. c. 15 with the forfeiture of 107. or twenty days' imprisonment, with an allowance of only bread and water for the first offence;

(a) This was A.D. 1772.