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And in regard to the principals of other professions, if they shall venture in the future to fix a price upon their merchandise and to bind themselves by agreements not to sell at a lower price, let them be condemned to pay forty pounds of gold. Your Court shall be condemned to pay fifty pounds of gold if it shall happen, through avarice, negligence or any other misconduct, the provisions of this salutary constitution for the prohibition of monopolies and agreements among the different bodies of merchants, shall not be carried into effect.” 1st Eddy on Com., section 4; 8 Canadian Law Times 299.
During the reign of Elizabeth monopolies were granted to servants and courtiers without number. A list of commodities, monopolies in which were assigned over to patentees, contains many things surprising and totally unknown to-day. “Currants, salt, iron, powder, cards, calf-skins, fells, pouldavies, ox shinbones, train-oil, lists of cloth, potashes, anise seeds, vinegar, seacoals, steel, aquavitæ, brushes, pots, bottles, saltpetre, lead, accidences, oil, calamine stone, oil of blubber, glasses, paper, starch, tin, sulphur, new drapery, dried pilchards, transportation of iron ordnance, of beer, of horn, of leather, importation of Spanish wool, of Irish yarn.” 1st Eddy on Com., section 1, p. 4, and Hume's History of England.
Among the earliest English legislation looking toward the question at issue, is the statute on Regrating, Forestalling, and Engrossing. See section 40, 1st Eddy on Com. Stats. at Large 5 and 6. Edw. VI., ch. 14.
In substance broadly stated these offenses cover
First, the purchase and resale of certain necessaries of life at market.
Second, the purchase of anything on its way to market, or any effort to control the price of anything, or keep anything from the market.
Third, contracts with producers with the intent to resell the things purchased.
It may perhaps be interesting to give the phraseology of these acts.
First, Regrating.—“That whatsoever person or persons that after the said first day of May shall by any means regrate, obtain or get into his or their hands or possession, in any fair, or market, any corn, wine, fish, butter, cheese, candles, tallow, sheep, lambs, calves, swine, pigs, geese, capons, hens, chickens, pigeons, conies, or other dead victual whatsoever, that shall be brought to any fair or market within this realm of Wales to be sold, and do sell the same again in any fair or market holden or kept in the same place or in any other fair or market within four (miles thereof, shall be accepted, reputed and taken for a regrator or regrators.”
Second, Forestalling.--"That whatsoever person or persons that after the first day of May next coming, shall buy, or cause to be bought, any merchandise, victual, or any other things whatsoever, coming by land or by water toward any market or fair, to be sold in the same, or coming toward any city, port, haven, creek or road of this realm of Wales, from any ports beyond the sea, to be sold (3) or make any bargain, contract or promise, for the having or buying of the same, or any part thereof so coming as aforesaid, before the said merchandise, victuals, or other things shall be in the market, fair, city, port, haven, creek or road ready to be sold; (4) or shall make any motion by word, letter, message or otherwise, to any person or persons, for the enhancing of the price or dearer selling of any thing or things above mentioned; (5) or else dissuade, move or stir any person or persons coming to the market or the fair, to abstain or forbear to bring or convey any of the things above rehearsed to any market, fair, city, port, haven, creek or road to be sold as is aforesaid, (6) shall be deemed, taken and adjudged a forestaller.”
Third, Engrossing.—"That whatsoever person or persons that after the said first day of May shall engross or get into his or
their hands by buying, contracting or promise-taking, other than by demise, grant or lease of land or title, any corn growing in the fields, or any corn or grain, butter, cheese, fish or other dead victuals whatsoever, within the realm of England, to the intent to sell the same again, shall be accepted, reputed and taken an unlawful engrosser or engrossers.”
Sir John Culpepper, in the Long Parliament, refers to monopolies in language so vehement that it might well be quoted by popular orators to-day. “They are a nest of wasps—a swarm of vermin which have overswept the land. Like the frogs of Egypt, they have gotten possession of our dwellings and we have scarce a room free from them. They sup in our cup; they dip in our dish; they sit by our fires. We find them in the dyefat, wash-bowl and powdering-tub. They share with the butler in his box. They will not bait us a pin. We may not buy our clothes without their brokage. These are the leeches that have sucked the commonwealth so hard that it is almost hectical. Mr. Speaker, I have echoed to you the cries of the kingdom. I will tell you their hopes. They look to heaven for a blessing on this parliament.” 1st Eddy on Com., section 7.
The question of the legality of such licenses first arose in the case of Darcey vs. Allen, 11 Co. 84; Noy, 173; Moore, 673; 8 Co. 125. In this case the plaintiff had a patent giving him exclusive privilege of manufacturing playing cards for twentyone years, and the Court declared: “This grant is primae impressionis, for no such was ever seen to pass by letters patents under the great seal before these days, and therefore it is a dangerous innovation, as well without any precedent or example, as without authority of law or reason.” 1st Eddy on Com., section 8 (4).
Parliament by statute, 21 James 1 (1624), chapter 2, abrogated all practice of granting monopolies, save in certain limited and specified cases.
Lord Coke, in his Institutes, volume 3, chapter 85, written
in 1629, says: “That monopolies are against the ancient and fundamental laws of the realm (as it is declared by this act), and that the monopolist was in times past, and is much more now, punishable for obtaining and procuring of them, we will demonstrate it by reason and prove it by authority.
“Whatsoever offense is contrary to the ancient and fundamental laws of the realm is punishable by law; but the use of a monopoly is contrary to the ancient and fundamental laws of the realm; therefore the use of a monopoly is punishable by law.
"That offense which is contrary to the ancient and fundamental laws is malum in se. The minor is proved by this declaration in parliament. The liberty that the subject hath to go to any clerk in the King's Court can not be restrained but by parliament."
He evidently looks upon the Statute 21 James I. not as the forbidding by statute of a thing otherwise right, but as the recognition by statute of a pre-existing wrong.
Hawkins' Pleas to the Crown, 624, asserts the bold and broad proposition that monopolies are void under the common law, and can not be created by the king.
American constitutional provisions are not usually the creation of new propositions, but formal enunciations of eternal principle of human right. Principles so eternal that Chief Justice Marshall and other eminent judges have expressed the opinion that no court and no legislative body has the power by de cision or enactment to override them. See 2d Eddy, section 659 et seq.; Ham vs. McClaws, 1 Bay State Carolina; 93 Fletcher vs. Peck (1810); 6 Cranch 87, Chief Justice Marshall delivering the opinion.
The right of reasonable opportunity to use one's capital, whether that capital be money or land, or brain or muscle; to use it without unreasonable restriction; to use it whether the capital be large or small, the land vast or limited; whether the intellect be crude or cultivated; whether the brawn be mere uncultivated strength or whether it be skilled labor, is a proposition so fundamentally, so vitally and eternally entwined in the nature of man that all efforts to overturn it must and shall fail. In efforts to solve the combination problem, there have ever been two aggressively diverging lines of thought. The individual who is not an organizer is always an extremist against combination. His inability to organize may be due to limited capacity; it may be due to too aggressive individuality, resenting all which controls, hampers, or modifies him in his own conduct or thought. An individual with power to organize is always in favor of combinations of some sort. The great leader of a labor strike is an organizer who is a believer in combination; he is a believer in trusts. A great organizer of capital is a believer in combination; he is a believer in trusts, and each of these leaders is far closer to the other in his conceptions and character than either believes. The very basis of a great strike is organization and control by a governing body. Whether that governing body be a convention, or committee, or one man, the principle is the same.
Even in politics, combinations and trusts sometimes exist, and even there those who are out look upon those who are in ag members of an objectionable ring. After, however, the outsiders become insiders, whether it be by breaking up the ring or by breaking into the ring, they still regard themselves as protectors of the rights of the people, and the former ringsters, now outsiders, have become in their minds merely contentious people with an unjust grievance. The views of each are just the same, except that they are vice versa.
In practical illustrations whatever the forms of the opposing organizations, usually in great issues the power is centered in one man. In the great coal strike, as it developed, it was practically Mitchell against Baer. Neither, of course, had absolute power because the organizations of their respective trusts did not give it; but each, by reason of intensity of purpose, force of