Read Ebook: Popular Law-making A study of the origin history and present tendencies of law-making by statute by Stimson Frederic Jesup

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"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.

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, 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.

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.

Independent of combination, there is probably no legal wrong in merely wishing ill to a man, withdrawing one's custom from him, competing with him, or even, possibly, in injuring his trade. There is an ancient case where the captain of an English ship engaged in a certain trade, to wit, the slave trade, arrived off a beach on the coast of Africa and was collecting his living cargo, when a second ship, arriving too late to get a load itself, fired a cannon over the heads of the negroes, and they, with the chief who was selling them, fled in terror to the forest. The captain of the first ship went back to London and brought suit against the captain of the second ship for injuring his trade and was allowed to recover damages; but it may be doubted if that is good law; although in 1909 a Minnesota court decided that a barber could sue an enemy if he maintained an opposition barbershop solely for the purpose of injuring his business; and a few years ago in Louisiana a street railway foreman was held liable in damages for instructing his men not to frequent the plaintiff's store. I say to you: "Do not trade with Smith, he is not a good person to deal with," or, "Do not take employment with him, he will treat you cruelly"; and in either case, unless I can be convicted of slander, he has no remedy against me if I am acting alone.

The first definition of forestalling is here given. Our modern equivalent is the buying of futures or dealing in stocks without intent to deliver, both of which have been forbidden or made criminal in many of our States. And forestalling, regrating, and engrossing were things early recognized as criminal in England, and these statutes embody much of what is sound in the present legislation against trusts.

We now find another statute; it applies to wines and liquors "and all other wares that come to the good towns of England," and the penalty imposed by that law was that the forestaller must forfeit the surplus over cost to the crown and be imprisoned two years. We are still enforcing remedies of that kind in our anti-trust laws, only instead of having him forfeit the surplus to the crown we usually have him pay damages, sometimes treble damages to the persons injured. In the Beef Trust case, the parties were duly convicted, and instead of being imprisoned, they were fined ,000. In other words, we still have not the courage to go to the length that our ancestors did in enforcing the penalties of these unlawful combinations. Of course it is a much more difficult thing to have forestalling and engrossing laws against foreign importations than against home productions; and so to-day we have not tried, except by a tariff, forestalling laws against foreign importations, but we have attempted to apply them very much as to home productions. In England, however, the statute at that time said that a person who bought up all the foreign product must forfeit all the profits to the state. Now this is nothing but the "Iowa idea" of two years ago. It was suggested very urgently by Governor Cummins that there should be a law providing that where a trust got complete control of a certain industry in this country its surplus profit should be forfeited either indirectly by the taking off of the tariff, or by way of a franchise tax, that is, of a United States tax upon its franchises, which could be increased in such a way as to tax it out of existence if it persisted. The latter remedy is at the root of President Taft's new corporation tax, but Congress has not yet applied the former, although it was very seriously advocated that there should be statutes which should indirectly forfeit the profits of the trust that had secured a monopoly; that is an engrossing trust--covin or alliance, as our ancestors would have called it--"a gentleman's agreement"--and that it should be done by a reduction of the tariff on the articles in which that trust dealt; this reduction to be ordered by the president. When he determined that a trust had completely engrossed an industry, he might say so by proclamation; and then the act of Congress should go into effect and the duties upon that product be abolished, all the protection of the trust taken away. There is a trouble with such legislation, in that it may be said to allow the president to make the law; and under our Constitution the president cannot make laws. The legislative branch and the executive branch of the government must be kept distinct; and it probably would be argued by constitutional lawyers, and in this instance by either party that was not in favor of such legislation, that to reduce the duties of such a class of goods was a legislative act, and therefore any such law would be unconstitutional because the president cannot legislate. But the point I wish to make now in both these cases is the exact correspondence of the problem; what are remedies to-day were remedies five hundred years ago. So far we have found nothing new, either in remedy or offence.

Now there is a third great line of legislation that we must consider in connection with these other two, and that is the Statutes of Labor. It was the custom in early times to attempt to regulate prices; both of wages and commodities. The first Statute of Laborers dates from 1349. Its history was economic. They had had a great plague in England known as the Black Death; and it had carried off a vast number of people, especially the laboring people. There was naturally great demand for workers. Laborers were very scarce. It is estimated that one-third of the entire population had died; and there has never been a time when wages were so high relatively, that is, when wages would buy so much for the workingman, as about the middle of the fourteenth century. But the employers were no fonder of high wages than they are to-day. All England was used to sumptuary laws, laws regulating the price of commodities, and villeins still existed. They were only just beginning to consider agricultural laborers as freemen; they were used to the notion of exerting a control over laboring men, who were still often appendant to the land on which they worked, for it was unlawful for an agricultural laborer to change his abode; and in many other ways they were under strict laws. So that it didn't seem much of a step to say also, we will regulate the rate of wages--particularly as the payment of wages in money was rather a new thing. Probably two or three centuries before most wages were paid in articles of food or in the use of the land. So they got this first Statute of Laborers through; it required all persons able in body under sixty to do labor to such persons as require labor or else be committed to gaol. That, of course, is compulsory labor; the law would therefore be unconstitutional with us to-day except in so far as it applied, under a criminal statute, in regard to tramps or vagrants. In some States we commit tramps and vagrants to gaol if they won't do a certain amount of work for their lodging, under the theory that they have committed a criminal act in being vagrants. Otherwise this principle, a law requiring all persons to work, is now obsolete. Then it went on to say, no workman or servant can depart from service before the time agreed upon; lawful enough, to-day, although laborers do not like to make a definite contract. The South, however, has adopted this principle as to agricultural labor, just as in the England of the fourteenth century. Southern States have an elaborate system of legislation for the purpose of enforcing labor upon idle negroes, which, when it creates a system of "peonage," is forbidden by the Federal laws and Constitution. They are compelled, as in the old English statute, to serve under contract or for a period of time, and if they break it, are made liable by this statute to some fine or penalty imposed by the nearest justice of the peace; and when they cannot pay this, they may be Imprisoned. Finally, this Statute of Laborers first states the principle that the old "wage and no more" shall be given, thus establishing the notion that there was a legal wage, which lasted in England for centuries and gave rise to the later law under which strikes were held unlawful. Here, they meant such wages as prevailed before the Black Death.

The next year the statute is made more elaborate, and specifies, for common laborers, one penny a day; for mowers, carpenters, masons, tilers, and thatchers, three pence, and so on. It is curious that the relative scale is much the same as to-day: masons a little more than tilers, tilers a little more than carpenters; though unskilled labor was paid less in proportion. The same statute attempts to protect the laborer by providing that victuals shall be sold only at reasonable prices, which were apparently fixed by the mayor.

Here, therefore, we have the much-discussed Standard Wage fixed by law, but in the interest of the employer; not a "living wage" fixed in the interest of the employee, as modern thought requires. The same statute makes it unlawful to give to able-bodied beggars, which is of a piece with the compulsory labor of the able-bodied. Now this first Statute of Laborers, which led to centuries of English law unjust to the laborers, it is interesting to note, was possibly never a valid law, for it was never agreed to by the House of Commons. However that may be, the confirming statute of 1364 was duly enacted by Parliament, and this was not in terms repealed until the year 1869, although labor leaders claim it to have been repealed by general words in the 5th Elizabeth.

Thorold Rogers tells us that those, after all, were the happy days of the laborer--when masons got four pence a day, and the Black Prince, the head of the army, only got twenty shillings--sixty times as much. This is a fair modern proportion, however, for military and other state service; though we pay the president a salary of nearly double that proportion to the yearly pay of a carpenter. But then, these English statutes applied mainly to agricultural labor; and domestic labor was paid considerably less.

This Statute of Laborers was again re-enacted in 1360, with a clause allowing work in gross, and forbidding "alliances and covins between masons, carpenters, and guilds." Work "in gross" means work by contract, piece-work, thus made expressly lawful by statute in England in 1360, but still objected to by many of our labor unions to-day. The provision against alliances and covins was extended to cover trades-unions, their rules and by-laws, as well as strikes, which were also considered combinations in restraint of trade. Now this was never law in this country.

There was a very early case in Pennsylvania, while it was still a colony, and there were others in the States soon after, which held that the Statutes of Laborers were never law in America. Our statutes early authorized trades-unions, but without this there is, I think, no American case where either a trades-union or a simple strike was held to be an unlawful combination. It was these early statutes which gave rise to the law that existed until the nineteenth century in England, that both strikes and unions were unlawful; a strike because it was usually a combination to raise the rate of wages, which was in theory fixed by law. Therefore, a strike was a combination with an unlawful aim, consequently a conspiracy. The logic is simple; and in the same way a trades-union was certainly an alliance between skilled workmen, and as such forbidden under the Statute of Laborers, besides being a combination in restraint of trade.

The great Statute of Laborers which was for centuries supposed to settle the law of England is that of Elizabeth in 1562. Meantime, agricultural labor as well as industrial was getting to be free. A statute of 1377, which requires villeins refusing to labor to be committed to prison on complaint of the landlord, without bail, itself recognizes that villeins fleeing to a town are made free after a year and day's habitation therein. In 1383 came Wat Tyler's rising; the villeins demanded a commutation of agricultural labor to a money rent and full freedom of trade and labor in all the market towns; and about this time was great growth of small freeholders.

The Statute of Richard II restricts laborers to their hundred and makes it compulsory for them to follow the same trade as their father after the age of twelve. The wages of both industrial and agricultural laborers are again fixed-shepherds, ten shillings a year; ploughmen, seven; women laborers, six shillings, and so on. Servants are permitted to carry bows and arrows, but not swords, and they may not play tennis or foot-ball. And here is the historical origin of the important custom of exacting recommendations: servants leaving employment are required to carry a testimonial, and none are to receive servants without such letter--the original of the blacklist. Here, also, we find the beginning of poor-law legislation, those unable to work are to be supported in the town where born. Villeinage, which began at the Norman Conquest, according to Fitz-Herbert, "because the Conqueror gave lordships with all the inhabitants to do with them at their pleasure to his principal followers, and they, needing servants, pardoned the inhabitants of their lives, and caused them to do all manner of service"--was now abolished by compensation in a money wage payment. The institution of villeinage is last mentioned in a commission of Queen Elizabeth, 1574, directing Lord Burleigh and others in certain counties to compound with all such bondmen or bondwomen for their manumission and freedom.

The next year the practice of fixing wages at a permanent sum is abandoned and they are to be fixed semi-annually at Easter and Michaelmas by a justice of the peace. In 1402 we find the remarkable provision that laborers are not to work on feast days nor for more than half a day before a holiday. Such legislation would hardly be necessary in modern England, where, in many trades, no one works for a whole day after the holiday as well. In 1425 is another statute forbidding masons to confederate themselves in chapters; and in 1427 the attempt to fix wages by law is again abandoned and they are to be fixed by the justices as in 1389, "because Masters could not get Servants without giving higher Wages than allowed by the Statute."

The right to labor or to trade was thus fully established in England, and from the very earliest times we find statutes that merchants may freely buy and sell. The Statute of York, to this effect , is re-enacted sixteen years later, and again under Richard II in 1391; and their right to carry away one-half the value of their imports in money, spending the other half in English commodities, in 1401.

This general right of trade may be defined as the right of any man to work at what trade he chose, and to buy or sell what and where he will, in the cheapest market. This right was indeed fundamental and needed no express statute. But all these laws concerning by-laws or combinations to prevent people from exercising their trade, or showing what were the liberties of trade in London and other towns are exemplifications of it. That this law is far older than the statutes is well shown by an actual law report of a case decided in 1221 and first published by the Selden Society in 1877:

"The Abbot of Lilleshall complains that the bailiffs of Shrewsbury do him many injuries against his liberty, and that they have caused proclamation to be made in the town that none be so bold as to sell any merchandise to the Abbot or his men upon pain of forfeiting ten shillings, and that Richard Peche, the bedell of the said town, made this proclamation by their orders. And the bailiffs defend all of it, and Richard likewise defends all of it and that he never heard any such proclamation made by anyone. It is considered that he do defend himself twelve-handed , and do come on Saturday with his law."

The fixing of ordinary prices, not tolls, was thoroughly tried in the Middle Ages and failed. Nor has it been attempted since as to wages, except in New Zealand by arbitration, and in England and in the State of New York and a few other States where we have a recent statute that all employment in public work must be paid for "at the usual rate of wages prevailing in the trade"; this principle, taken from the last form of the English Statute of Laborers, being passed in the interest of the laborers themselves and not of the employers, as it was in early England. The result of this first piece of legislation was to impose some twenty thousand lawsuits upon the city of New York alone; the laborers working for a year or two at the rates paid by the city and then, after discharge, bringing suit and claiming that they had not been paid the "usual rate" of the trade; and as there were very heavy penalties, it is said to have cost the city of New York many millions of dollars. In the same way the union idea of having all trades under the control of an organization was carried to its extreme result in the Middle Ages also, so that the guilds became all-powerful; they imposed their rules and regulations to such an extent that it was almost impossible for any man to get employment except by their permission and under their regulation, or without membership. They naturally developed into wealthy combinations, more of employers than of journeymen, until they ended as the richly endowed dinner-giving corporations that we see in the city of London to-day. In France, at least, they were considered the greatest menace to labor, and were all swept away at the time of the French Revolution amid the joy of the masses and the pealing of bells. Unfortunately, our labor leaders are sometimes scornful of history and unmindful of past example; the fact that a thing has been tried and failed or has, in past history, developed in a certain manner, carries no conviction to their minds.

A servant in husbandry had to give six months' notice before leaving and wages were again fixed; and in 1452, the time of Jack Cade's Rebellion, one finds the first prototype of "government by injunction," that is to say, of the interference by the lord chancellor or courts of equity with labor and the labor contract, particularly in times of riot or disorder.

It is noteworthy that at the same time that this extra-common-law process begins in the statutes, we have other statutes vindicating the power of the common-law courts. For instance, six years later, in the 8th of Richard II is a clause complaining that "divers Pleas concerning the Common Law, and which by the Common Law ought to be examined and discussed, are of late drawn before the Constable and Marshal of England, to the great Damage and Disquietness of the People." Such jurisdiction is forbidden and the common law "shall be executed and used, and have that which to it belongeth ... as it was accustomed to be in the time of King Edward." Again, four years later, it is ordained "that neither Letters of the Signet, nor of the King's Privy Seal, shall be from henceforth sent in Damage or Prejudice of the Realm, nor in Disturbance of the Law."

The next year we find a new Statute of Laborers confirming all previous statutes and forbidding any servant or laborer to depart from service without letters testimonial, and if found wandering without such letters shall be put in the stocks. Short of the penalty of the stocks, a condition of things not very dissimilar is said to exist to-day in the non-union mining towns of the West. In Cripple Creek, for instance, no one is allowed without a card from his previous employer which, among other things, sets forth that he is not associated with any labor union. This Statute of Richard II also provides that artificers and people of Mystery, that is to say, handicraftsmen, shall be compelled to do agricultural labor in harvest time. The Statute of Richard goes on to complain of the outrageous and excessive hire of labor, and attempts once more to limit the prices, but already at more than double those named in the earlier statute: ploughmen seven pence, herdsmen six pence, and even women six pence a day, and persons who have served in husbandry until the age of twelve must forever continue to do so. They may not learn a trade or be bound as apprentices. Servants and laborers may not carry arms nor play at foot-ball or tennis; they are encouraged, however, to have bows and arrows and use the same on Sundays and holidays. Impotent beggars are to be supported by the town where they were born.

The barons protested that they would never suffer the kingdom to be governed by the Roman law, and the judges prohibited it from being any longer cited in the common-law tribunals; and in 1389 we find another statute complaining of the courts of the constable and marshal having cognizance of matters which can be determined by the common law, and forbidding the same; and the statute of the previous year concerning laborers is confirmed, except that wages are to be fixed by a justice of the peace, "Forasmuch as a Man cannot put the Price of Corn and other Victuals in certain." Shoemakers are forbidden to be tanners, and tanners to be shoemakers; a statute which seems to have been much debated, for it is continually being repealed and re-enacted for a hundred years to follow.

The Statute of York, giving free trade to merchants, is re-enacted, and it is specified that they may sell in gross or by retail "notwithstanding any Franchise, Grant or Custom," but they are forbidden to sell to each other for purposes of regrating and they must sell wines in the original package and "Spicery by whole Vessels and Bales." "All the weights and measures throughout the Realm shall be according to the Standard of the Exchequer"--save only in Lancashire, where they are used to giving better measure.

Laborers are forbidden to be hired by the week or to be paid for holidays or half days. In 1405 the old Statute of Laborers is re-enacted, particularly the cruel law forbidding any one to take up any other trade than husbandry after the age of twelve, nor can any one bind his child as apprentice to learn a trade unless he has twenty shillings per annum in landed property.

A statute recites that "by the yearly Congregations and Confederacies made by the Masons in their general Chapiters and Assemblies, the good Course and Effect of the Statute of Labourers be openly violated ... and such Chapiters and Congregations are forbidden and all Masons that come to them are to be punished by imprisonment and fine"--an excellent example of the kind of statute which led to the doctrine that trades-unions were forbidden by the common law of England.

The next year the attempt to fix wages by law is again abandoned, and they are to be fixed by the justices, "because Masters cannot get Servants without giving higher Wages than allowed by the Statute."

Servants in husbandry purposing to leave their masters were required to give warning by the middle of the term of service so that the "Master may provide another Servant against the End of his Term." Again a maximum price is fixed for the wages of servants, laborers, and artificers: the common servant of husbandry, fifteen shillings a year, with money for clothing, eleven shillings; and women servants ten shillings, with clothing price of four shillings, and meat and drink. But winter wages are less and harvest wages more than in summer; and men who refuse to serve by the year are declared vagabonds.

John Cade was attainted of treason, and in 1452 comes the famous statute giving the chancellor power to issue writs of proclamation against rioters or persons guilty of other offences against the peace, with power to outlaw upon default, quoted by Spence as the foundation of the practice of issuing injunctions to preserve the peace, now bitterly complained of by Mr. Gompers and others; and it is most noteworthy as sustaining this adverse view that the Statute of Henry VI itself makes special exception, "That no Matter determinable by the Law of this Realm shall be by the same Act determined in other Form than after the Course of the same Law in the King's Courts having Determination of the same Law," and the act itself is only to endure for seven years.

The abuse of monopolies begins to be shown this year in a statute complaining of the grant of second patents of a matter already granted; and avoiding in such cases the later patent unless the king express that "he hath determined his pleasure against the first."

The appearance of the gypsies in England is marked by a statute of 1530, describing them as "outlandish people called Egyptians," complaining of their robberies, and requiring them to depart the realm. In the same year first appeared the celebrated Act for the punishment of beggars and vagabonds and forbidding beggary, and requiring them to labor or be whipped. Herbert Spencer states in his "Descriptive Sociology" that it punishes with loss of an ear the third conviction for joining a trades-union, which, if true, would justify much of the bitterness of modern labor unions against the common law. The provision evidently referred to applies, however, not to guilds, but to "Scolers of the Universities of Oxford and Cambridge that go about begging not being authorized under the seal of the said Universities" as well as to other beggars or vagabonds playing "subtile, crafty and unlawful games such as physnomye or palmestrye." The same year is an Interesting statute against foreign artificers exercising handicrafts in England, not without example in the labor legislation of our modern States; but exempting beggars, brewers, surgeons, and scriveners as not handicraftsmen, possibly the origin of the vulgar notion that those trades are more genteel than skilled labor.

In the 3d of Edward VI we find the first Riot Act, aimed at persons to the number of twelve or above assembling together and proposing to alter the laws and not dispersing when so required by the sheriff, and even persons more than two and less than twelve assembling for such purpose are subject to fine and imprisonment with treble damages to parties injured, and if forty persons so assemble and do not disperse in three hours, they are declared felons. This statute was re-enacted and made more severe in the reign of Queen Mary.

In the 5th of Elizabeth comes the last and greatest Statute of Laborers. This statute is a consolidation of all previous laws, and it begins by recognizing the principle that the fixing of wages is a mistake and all such laws are repealed so far as they relate to terms of hiring and wages. Servants in certain employments, generally speaking the tailoring and shoemaking trades, may still be hired by the year, and persons unmarried, not having an income of forty shillings a year, may be compelled to serve in their own handicraft. Such yearly servants may not be dismissed or depart during the year except by cause allowed by two justices, nor at the end of a year, without a quarter's warning. Unmarried persons under thirty, not having any trade and not belonging to a nobleman's household, may be compelled to labor at the request of any person using an art or mystery, and all persons between twelve and sixty not otherwise employed may be compelled to serve by the year in husbandry. The masters may not dismiss, nor the servants unduly depart; nor leave the city or parish of their service without a testimonial; that is to say, a certificate of due cause under the seal of the town or constable and two honest householders. The hours of labor are still fixed from 5 A.M. to 7 P.M., between March and September, with two and one-half hours for meal times, drink times, and sleep. From September to May, from dawn to sunset, and sleep times only allowed from May to August. A penalty of one month's imprisonment and fine is imposed on artificers and laborers leaving their work unfinished. Wages are still to be fixed by the justices of the peace, and it is made a penal offence to give or receive higher wages than the lawful rate, and all contracts for higher wages are void. Unmarried women between twelve and forty may be compelled to serve in like manner, and everybody has to work at harvest time, that is to say, artificers as well as laborers. The elaborate law of apprenticeship dates also from this great statute, and no one can use a manual art who has not been apprenticed to the same for seven years. One journeyman shall be kept for each three apprentices; disputes are to be settled by the justices of the peace, and indeed the whole labor contract is regulated as carefully as the most statute-mad of modern labor leaders could desire, though hardly, perhaps, then, in the sole interest of the workingman. If this statute was ever repealed, it was in very recent times.

The year of the statute against fraudulent conveyances, and of another poor law, with provisions for the punishment of "rogues, vagabonds and sturdy beggars," who are defined to include those going about the country "using sybtyll craftye and unlawfull Games or Playes ... Palmestrye ... or fantasticall Imaginacons.... Fencers Bearewardes and Common Players," and the penalty for harboring such vagabonds was twenty shillings. We are a long time from the knighting of Sir Henry Irving. In 1575 comes another act for setting the poor to work, and the punishing of tramps and beggars.

In 1571 also is the first formal complaint of monopolies by the Commons. Coal, oil, salt, vinegar, starch, iron, glass, and many other commodities were all farmed out to individuals and monopolies; coal, mentioned first, is still, to-day, the subject of our greatest monopoly; while oil, mentioned fourth, is probably the subject of our second greatest monopoly; and iron, mentioned seventh, is probably the third. Conditions have not changed. The only reason we don't have salt still a monopoly is on account of the numerous sources and processes for obtaining it from mines and from the sea; Fugger, the John D. Rockefeller of the sixteenth century , had a monopoly of the salt mines of all Germany. The conditions have maintained themselves, even as to the very articles. This grievance was first mooted in Parliament in 1571 by a Mr. Bell, "who was at once summoned before the Council." This council was the King's Council, or Privy Council--a body roughly corresponding to our United States Senate. He was summoned before the council for objecting because coal, oil, salt, vinegar, starch, iron, glass, were the subjects of monopoly; and he "returned to the House with such an amazed countenance that it daunted all the rest." That is very much the fate of the tariff reformer to-day, if we may credit the tales of those returning from Washington.

After a lapse of twenty-six years the Commons ventured again. This time the queen replied that she hoped her dutiful and loving subjects would not take away her prerogative, which is the choicest flower in her garden, but promised to examine all patents and abide the touchstone of the law. Nevertheless, four years later the list of articles subject to monopoly was so numerous that when it was read over to the House in 1601 an indignant member exclaimed: "Is not bread amongst them? Nay, if no remedy is found for these, bread will be there before the next Parliament." The Populists openly cursed the monopolies and declared that the prerogatives should not be suffered to touch the old liberties of England. Seeing that resistance was no longer politic, Elizabeth sent a message to the House saying that some of these monopolies should be presently repealed, some superseded, and none put in execution but such as should first have a trial according to law for the good of the people; and Robert Cecil, the secretary, added an assurance that all existing patents should be revoked and no others granted for the future. The Commons waited upon the queen with an address of thanks, to which she replied almost affectionately that never since she had been queen "did I put my pen to any grant but upon pretence made to me that it was good and beneficial to the subjects in general, though a private profit to some of my ancient servants who had deserved well. Never thought was cherished in my heart which tended not to my people's good." Notwithstanding these fair words, the House of Commons found it necessary to enact the Great Statute against Monopolies.

In the beginning, the statute recites that "Your most excellent Majestie in your Royall Judgment ... did In the yeare ... 1610 ... publish in Print to the whole Realme and to all Posteritie, that all Graunt of Monapolyes and of the benefitt of any penall Lawes, or of power to dispence with the Lawe ... are contrary to your Majesties Lawes, which your Majesties Declaracon is truly consonant and agreeable to the auncient and fundamentall Lawes of this your Realme.... Nevertheles ... many such Graunts have bene undulie obteyned ... For avoyding whereof and preventinge of the like in tyme to come, May it please your most excellent Majestic ... that it may be declared and enacted, and be it declared and enacted by the authoritie of this present Parliament That all Monapolies and all Commissions Graunts Licenses Charters and lettres patents heretofore made or graunted, or hereafter to be made or graunted to any person or persons Bodies Politique or Corporate whatsoever of or for the sole buyinge sellinge makinge workinge or usinge of any things within this Realme or the Dominion of Wales, or of any other Monopolies, or of Power Libertie or Facultie to dispence with any others, or to give Licence or Toleracon to doe use or exercise any thinge against the tenor or purport of any Lawe or Statute ... are altogether contrary to the laws of this realm and so are or shall be utterly void and in no wise to be put in use or execution." Section 2 provides that all such monopolies and the force and validity of them ought to be and should forever hereafter be examined, tried, and determined by and according to the common law; section 4, that a party aggrieved might have treble damages, as in our modern Sherman Act. There followed provisos for exempting existing patents for twenty-one years or less for new inventions or like future patents for fourteen years or less, the charters of the city of London, or any custom or customs of London, or any other city or town, for corporations, companies, or fellowships of any art, trade, occupation, or mystery; that is to say, exempting the guilds, but these guilds by this time had long ceased to be societies of actual journeymen or handicraftsmen. This great statute may fairly be classed among the constitutional documents of England, and it left the great fabric of the English common law guaranteeing freedom of labor and liberty of trade, Magna Charta itself recognizing this principle, and the Statute of Westminster I forbidding forestalling and excessive toll contrary to the laws of England, as it has remained until the present day--only rediscovered in the statutes of our Southern and Western States aimed against trusts, and reapplied by Congress, in the Sherman Act, to interstate commerce; but in neither case added to, nor, possibly, improved.

Two years before this great statute, the process of impeachment, not employed for nearly two hundred years, had been revived against Sir Giles Mompesson and Sir Francis Mitchell, who in the Parliament of 1621 were impeached "for fraud and oppression committed as patentees for the exclusive manufacture of gold and silver thread, for the inspection of inns and hostelries, and for the licensing of ale-houses. While no definite articles were presented according to modern forms, an accusation was made by the Commons and a judgment rendered by the Lords, condemning both to fine, imprisonment, and degradation from the honor of knighthood." Nevertheless, Charles I revived the system of monopolies and raised revenue by their application to almost every article of ordinary consumption as well as by enormous fines inflicted through the Star Chamber, both important matters leading to his dethronement. Elizabeth granted monopolies on the perfectly madern pretence that a monopoly, be it made by law or by tariff, is for the benefit of the public good, though at the same time possibly a private profit to certain individuals, friends of the sovereign.

OTHER LEGISLATION IN MEDIAEVAL ENGLAND

The Statute of Westminster I has sometimes been termed a great English code; it is certainly a comprehensive statement by statute of a considerable portion of existing law. In our consideration of labor and conspiracy laws we have had to include statutes of later centuries. Now, returning to the year of the Statute of Westminster, we found, in 1275, also the Statute of Bigamy, aimed against priests with more than one wife. It is to be noted that this was centuries before the celibacy of priests became one of the doctrines of the Roman Catholic Church. It is also interesting that this early statute refers to the pope as "the Bishop of Rome"--but only as printed since 1543.

In 1305 the Anglo-Norman law reports begin, the Year Books. From then to now, at least, we have continuous written reports of all important cases decided in England. This is not to say that we do not have them before , but they are now for the first time systematic.

And then we find the first statute restraining what we should now call chancery jurisdiction, complaining that the law of the land and common right was delayed by letters issued under the king's will, and ordaining that henceforth they shall not be disturbed by said letters and nothing done in any of the places of the court of the king or elsewhere by such letters against right or the law of the land shall avail.

In 1313 the coming armed to Parliament is forbidden. These were troublous times and there was little legislation in consequence, and in 1322 Edward II secured the revocation of the New Ordinances themselves, but as in all such cases of royal grant and withdrawal the principles shown are even the more important historically. Of uncertain period is the Statute of Jewrie forbidding usury to the Jews, and Christians from living among them, but permitting them freedom of trade and exempting them from taxation except to the king; and a statute of the usages and customs of the men of Kent beginning with the statement that "all the Bodies of Kentishmen be free, as well as the other free Bodies of England," which dates at least as late as the early part of the fourteenth century, but still exemplifying the notion that a statute should only express law or custom previously existing.

And now comes a liberal statute, repealing those restrictions on wool, and allowing it to be exported; and another statute that "the Sea be open to all manner of merchants." Now this is the origin of the great English notion of freedom to trade with foreign parts; and was principally relied upon three centuries later in the great case of monopoly brought against the East India Company. And England has assumed dominion of the sea ever since; "the boundaries of Great Britain are the high-water mark upon every other country."

This year was the plague of the Black Death, and the following year is the first Statute of Laborers discussed in an earlier chapter and elaborately amended in the following year. In 1350 also we find the Statute of Cloths, providing again for free trade in victuals, cloths, and any other manner of merchandise in all the towns and ports of England, and punishing forestalling of any merchandise with two years' imprisonment and forfeiture of the goods, one-half to go to the informer. Two years later the forestalling and engrossing of Gascony wines is forbidden and even the selling of them at an advanced price, and this offence is made capital!--and the next year we have the most elaborate of the Statutes of the Staple re-established. This ordinance provides for a staple of wools, leather, wool fells, and lead in various towns in England, Wales, and Ireland. The safety of merchant strangers is provided for, and it is again made a felony for the king's subjects to export wool; and more important still, all merchants coming to the staple and matters therein "shall be ruled by the Law-Merchant and not by the common Law of the Land nor by Usage of Cities, Boroughs or other Towns," and any plaintiff is given the option whether he will sue his action or quarrel before the justices of the staple by the law thereof, or in the common-law court. Merchandise may be sold in gross or by parcels, but may not be forestalled; and the goods of strangers suffering shipwreck shall be restored to their owners on payment of salvage. Houses in staple towns must be let at a reasonable rate, and conspiracies or combinations against the law of the staple made criminal. Again our ancestors showed themselves more civilized than we, this time in their Custom-house proceedings; for Article 26 of this statute provides that "whereas a Duty is payable of three pence in the pound by all merchant strangers coming into the kingdom, they may show their letters or invoices to prove the value of their goods, and if they have no letters, they shall be believed by their oath ... and now of late we understand by the Complaint of the said Merchants that although they have Letters or have made oath, nevertheless after the Oath made the bailiffs of the customs do unseal their Barrels, Fardels, and Bales for which they have taken their oath. We, not willing that Strangers that come into our Realm be in such Manner grieved, establish that when the Letters or the oath be taken their Goods shall be delivered to them without delay and the bailiffs meddle no more of the same Goods upon Pain of Imprisonment and pay the Party grieved quatreple Damages." As is well known, it is the United States custom to insist upon the oath of the importer, and notwithstanding that, rummage open his trunks. Or are we to infer that people were more truthful in those days?

The export of iron is forbidden, and the justices given power to punish them that sell iron at too dear a price, but it does not appear how the prices are to be determined; and the Statute of the Staple is again re-enacted and the provision made that duty shall be paid only upon those goods which are actually sold in England and the merchant may re-export the balance--the first precedent of our laws of importing under bond. It is notable that this year the Statute of Laborers is extended to the city of London.

The Ordinance of Herrings is a most interesting example of early intelligence in dealing with a modern abuse. It provides "that no herring shall be bought or sold in the Sea, till the Fishers be come into the Haven with their Herring, and that the Cable of the Ship be drawn to the Land." That thereupon they may sell freely, but only between sunrise and sunset. "The Hundred of Herring shall be ... six score, and the Last by ten Thousand and all Merchants must sell the Thousand of Herring after the Rate of the Price of the Last, and the people of Yarmouth shall sell the last , bought for forty shillings for half a mark of gain and not above; and so the people of London for one mark of gain"; and the destruction of fish is prevented, but all caught must be sold. It is well known that the custom was to destroy all the fish brought into Billingsgate market above a certain quantity, which led Ruskin to cry out furiously that the real prices of the world were regulated by Rascals, while the fools are bleating their folly of Supply and Demand. One may guess to-day that most of the proceedings in the ports of Boston, New York, or Gloucester would be highly criminal under this ancient law. So, in the Statute of Dogger , the price of dogger fish is settled at the beginning of the day and must be sold at such price "openly, and not by covin, or privily," nor can fish be bought for resale, but must be sold within the bounds of the market. To-day there is not a quart of milk that goes into Boston that is not forestalled, nor possibly a fish that is not sold at sea or even before its capture; and the number of middlemen is many--when, indeed, they all are not consolidated into a trust. The destruction, directly or by cold storage, of milk, fish, eggs, or other food in order solely to maintain the price should to-day be a misdemeanor; and these early doctrines of forestalling and restraining trade should be to-day more intelligently applied by our judges--or by the legislatures, if our lawyers have forgotten them--for they all are "highly criminal at the common law."

In 1360 the exportation of corn is forbidden. We now, therefore, have that principle applied to wool, iron, and bread-stuffs--corn, of course, meaning all kinds of grain. There is another statute requiring Parliament to be held once a year; and, more interesting, that pleas should be made in the English language, for "the French tongue is much unknown in said Realm of England," but the judgments are to be enrolled in Latin. In 1363 another statute concerning diet and apparel fixes the price of poultry, a young capon three pence, an old one four pence, a hen two pence, and a pullet one penny "for the great Dearth that is in many Places." Department stores are anticipated by a clause complaining that the merchants called grocers do engross all manner of merchandise "by Covin and Ordinance made betwixt them, called the Fraternity and Gild of Merchants," and anticipates the prejudice against the modern department store by ordaining that merchants shall deal in only one sort of merchandise; and furthermore handicraftsmen are allowed to "use only one Mystery," that is, trade--which also anticipates a principle dear to modern trades-unions. The statute then regulates the diet and apparel of servants. They may eat once a day of flesh or fish, but the rest of their diet must be milk or vegetarian. Their clothing may not exceed two marks in value. People of handicraft and yeomen, however, are allowed to wear clothing worth forty shillings, but not silk, silver, nor precious stones. Squires and gentlemen of a landed estate less than one hundred pounds a year may wear clothing to the value of four marks and a half, but not gold nor silver, precious stones nor fur. Merchants having goods to the value of five hundred pounds may dress like esquires and gentlemen to a value of six marks. Clerks, that is to say, persons having degrees from colleges, may dress like knights of the same income and may wear fur in winter and lawn in summer, and clothiers make clothes accordingly and drapers and tailors charge proportionately. This most interesting effort to interfere with private life stops short of regulating the use of wine or beer; and tobacco had not yet been discovered. It is all the more interesting to note that it was found so intolerable that it was repealed the following year; and little effort since then has been made to regulate the diet or dress or expenditure of Englishmen; it was declared in memorable language that "which was ordained at the last Parliament, of Living and of Apparel, and that no English Merchant should use but one Merchandise" be repealed, and "It is ordained, That all People shall be as free as they were before the said Ordinance," and "all Merchants, as well Aliens as Denizens, may sell and buy all Manner of Merchandises, and freely carry them out of the Realm ... saving the Victuallers of Fish that fish for Herring and other Fish, and they that bring Fish within the Realm." Thus, after trying the opposite, we find triumphantly established in the middle of the fourteenth century the great English principle of freedom of life and trade. The legislation of this great reign ends with the prohibition of practising lawyers from sitting in Parliament and an ordinance that women might not practise law or "sue in court by way of Maintenance or Reward, especially Alice Perrens," Alice Perrers or Pierce having become unpopular as the mistress of the elderly king. Our courts have usually held that there is no common-law principle forbidding women to practise law, but from this ancient statute it would appear that such decisions are erroneous.

In 5 Richard II is a law absolutely forbidding the sale of sweet wines at retail. This law, with the testimony of Shakespeare, goes to show that England liked their wines dry , but the act is repealed the following year, only that sweet wines must be sold at the same price as the wines of the Rhine and Gascony; and in the same year, more intelligent than we, is a statute permitting merchants to ship goods in foreign ships when no English ships are to be had. In 1383, according to Spence, the barons protested that they would never suffer the kingdom to be governed by the Roman law, and the judges prohibited it from being any longer cited in the common-law tribunals. The rest of the statutes of Richard II are taken up with the important statutes concerning riots and forcible entries, and regulating labor, as set forth in the last chapter.

For the purpose of his Chicago speech, it is a pity that Mr. Bryan's attention was never called to the Statute of the 8th of Henry VI, which forbids merchants from compelling payment in gold and from refusing silver, "which Gold they do carry out of the Realm into other strange Countries." An enlightened civic spirit is shown in the Statute of 1433, which prohibits any person dwelling at the Stews in Southwark from serving on juries in Surrey, whereby "many Murderers and notorious Thieves have been saved, great Murders and Robberies concealed and not punished." And the statute sweepingly declares everybody inhabiting that part of Southwark to be thieves, common women, and other misdoers. Fortunately, this was before the time that John Harvard took up his residence there.

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