Popular Law-making. Frederic Jesup Stimson
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It was therefore equally unnecessary to adopt new statutes providing against extortion or discrimination, for the last part of the phrase "contrary to the common custom of the realm" means discrimination. But this is one of the numerous cases where our legislatures, if not our bar and bench, erred through simple historical ignorance. They had forgotten this law, or, more charitably, they may have thought it necessary to remind the people of it. There has been a recent agitation in this country with the object of compelling great public-service companies, such as electric lighting or gas companies, to make the same rates to consumers, large or small. This also was very possibly the common law, and required no new statutes; there are cases reported as far back as the fourteenth and fifteenth centuries where, for instance, a ferryman was punished for charging less for the ferriage of a large drove of sheep or cattle than for a smaller number, "contrary to the common custom of the realm." Nine years before this statute is the Assize of Bread and Beer, attempting to fix the price of bread according to the cost of wheat, but notable to us as containing both the first pure-food statute and the first statute against "forestalling."
[Footnote 1: Florida, Texas, and the old Territory of Dakota.]
[Footnote 2: Louisiana, New Mexico, and Arizona.]
Now forestalling, regrating, and engrossing are the early English phrases for most of the unlawful or unmoral actions which we ascribe to the modern trust. In fact, there is hardly one legal injury which a trust is said to commit in these days which cannot be ranked under those three heads, or that of monopoly or that of restraint of trade.
"Forestalling" is the buying up provisions on the way to a market with intent to sell at a higher price; and the doctrine applied primarily to provisions, that is to say, necessaries of life. Precisely the same thing exists to-day, only we term it the buying of futures, or the attempt to create a corner. We shall find that the buying of futures, that is to say, of crops not yet grown or outputs not yet created, is still obnoxious to many of our legislatures to-day, and has been forbidden, or made criminal, in many States. "Regrating" is defined in some of the early dictionaries as speculating in provisions; the offence of buying provisions at a market for the purpose of reselling them within four miles of the place. The careful regulation of markets and market towns that existed in early times in England would not suffer some rich capitalist to go in and buy all that was offered for sale with intent of selling it to the same neighborhood at a higher price. Bishop Hatto of the Rhine, you may remember, paid with his life for this offence. The prejudice against this sort of thing has by no means ended to-day. We have legislation against speculation in theatre tickets, as well as in cotton or grain. "Engrossing" is really the result of a successful forestalling, with or without regrating; that is to say, it is a complete "corner of the market"; from it our word "grocer" is derived. Such corners, if completely successful, would have the public at their mercy; luckily they rarely are; the difficulty, in fact, begins when you begin to regrate. But in artificial commodities it is easier; so in the Northern Pacific corner, a nearly perfect engrossing; the shares of stock went to a thousand dollars, and might have gone higher but for the voluntary interference of great financiers. Leiter's Chicago corner in wheat, Sully's corner in cotton, were almost perfect examples of engrossing, but failed when the regrating began. All these tend to monopoly, and act, of course, in restraint of trade; the broader meanings of these two latter more important principles we leave for later discussion.
(1285) The Statute of Bakers, or Assize of Bread and Ale, is by some assigned to the 13th of Edward I. If so, we find all these great modern questions treated by statute in the reign of the same great law-making king, Edward I, who well was called the "English Justinian"; for, in 1305, twenty years later, we have the first Statute of Conspiracy. This statute only applies to the maintaining of lawsuits; but the Statute of Laborers of 1360 declares void all alliances and covins between masons, carpenters, and guilds, chapters and ordinances; and from this time on the statutes recognize the English common law of conspiracy in general words.
As this is one of the most important doctrines of the English law, and moreover one which is most criticised to-day by large interests, both of capital and labor, it will be wise to dwell upon its historical and logical origin in this place, though we shall consider it at length later as it touches various fields of legislation. It is notable for two most important principles: first, that it recognizes the great menace of combined action, and both forbids and punishes combinations to do an act which might be lawful for the individual; second, of all branches of civil, as distinct from criminal, law, it is the one which most largely recognizes intent; that is to say, the ethical purposes of the combination. It has been urged in some judicial opinions that in matters of boycotts, strikes, etc., the law cannot go into the motive; this argument obviously proves too much, for it is no more easy to examine motives in the criminal law, and this is done all the time. A homicide, for instance, will vary in all degrees between justifiable guilt or manslaughter up to murder in the first degree, according to the motive which prompted the act. It is really no more difficult, and the reported cases do not show it to be any more difficult, to consider the motive behind a combination of men or the motive inspiring a series of related acts. The real trouble comes only in the Federal anti-trust act, because the machinery of this clumsy statute, a bill in equity, imposes upon judges the duty of finding the facts.
This doctrine of conspiracy is so old in England that I am unable to trace it to its source. From the wording of repeated early statutes it would seem that they recognized this law of conspiracy as already existing and merely applied it to new forms, such as, for instance, the combination of masons, carpenters, and guilds, just mentioned. It is, perhaps, not to us important whether it is originally based on common law or these early statutes, for these statutes are quite early enough to have passed into the common law of England, and consequently into the common law in this country. Moreover, early statutes merely express the common law; therein lies their significance. Now, many State laws and constitutions, as well as most State courts, recognize that the common-law statutes of England existing at least before 1775, if not 1620,[1] are common law in the States of this Union. In a general way, any statute that antedates the time of our settlement we took over as part of our common law.
[Footnote 1: 1607 (Virginia, West Virginia, Illinois, Indiana,
Missouri, Arkansas, Colorado, Wyoming); 1776 (Florida, Maryland, Rhode
Island, Pennsylvania). None, however, are law in New York.]
We are now coming also to that great range of statutes, which, on the one hand, control labor and regulate the rights of the laborer, both in his prices and in his hours; and, on the other, those statutes relating to what we call "trusts," conspiracy, and trades-unions, which have made common-law principles which are to-day, all of them, invoked by our courts; and form the precedents of practically all our modern legislation on matters affecting labor, labor disputes, injunctions, strikes, boycotts, blacklists, restraint of trade, and trusts—in fact, the largest field of discussion now before the mind of the American people. The subjects are more or less connected. That is, you have the growth of legislation as to laborers on the one hand, and on the other you have the growth of this legislation as to combinations or conspiracies, trades-unions, guilds, etc.
(1304) Now let us begin at that first statute of conspiracy, and find what the definition of a conspiracy is; because it is a very important question to-day, whether we are going to stick to the old common-law idea or not. The very title of this statute is "A definition of conspirators," and it begins: "Conspirators be they that do confeder or bind themselves together by oath, covenant or other alliance" either to indict or maintain lawsuits; "and such as retain men in the Countrie with Liveries or Fees for to maintain their malicious Enterprises, and this extends as well to the Takers as to the Givers." And as it gradually assumed shape and got definite and broad, the idea, we will say, by 1765, when Blackstone wrote, was this: A conspiracy is a combination by two or more men, persons or companies, to bring about, either an unlawful result by means lawful or unlawful, or a lawful result by unlawful means. Now so far the definition is admitted. Everybody agrees, both the labor leaders and the courts, on that definition—that when two or more people combine together to effect an unlawful object, it is a conspiracy; which is both a criminal offence under the laws of the land everywhere, and also gives the party injured a right to damages, that is, what we call a civil suit; and furthermore no act is necessary. There is no doubt