Popular Law-making: A study of the origin, history, and present tendencies of law-making by statuteStimson, Frederic Jesup
History
Popular Law-making: A study of the origin, history, and present tendencies of law-making by statute
Stimson, Frederic Jesup
Legislation -- United States
The danger to any individual is so tremendous if he is to be conspired
against by thousands, hundreds of thousands, not by one neighbor, but
by all the people of the town, that it early got established as a
principle of the common law, and of these early English statutes,
that, although one man alone might do an act which, otherwise lawful,
was to the injury of a third person, and be neither restrained nor
punished for it, he could not _combine with others_ for that purpose
by the very same acts. For instance, I don't like the butcher with
whom I have been doing business; I take away my trade. That, of
course, I have a perfect right to do. But going a step farther, I
tell my friends I don't like Smith and don't want to trade with
him--probably I have a right to do that; but when I get every citizen
of that town together at a meeting and say: "Let us all agree to
ruin Smith, we will none of us trade with him"--Smith is bound to
be ruined. The common law early recognized this importance of the
principle of combination, and therefore it was part of the English
common law and is still, barring one recent statute, that a
combination to injure a person, although by an act which if done
by one individual would be lawful, is nevertheless an unlawful
combination; that is, a _conspiracy_ under the law; for all
"conspiracies" are unlawful, under the law; the meaning of the word
_conspiracy_ in the law is, not an innocent combination, but a guilty
one, and anything which is a _conspiracy_ at law can be punished
criminally, or will give rise to civil suits for damages by the
parties injured, or usually entitle one to the protection of an
injunction. A conspiracy, therefore, is not only a guilty combination,
of two or more persons, for an unlawful end by any means, or for a
lawful end by unlawful means, but also one for an immoral end, a
malicious end, as, let us say, the ruin of a third person, or the
injury of the public. All the dispute about the law of conspiracy and
the statutes and what laborers can do and what employers can do to-day
really hinges about that last clause. The labor leaders, the radicals,
want to say that nothing shall be a conspiracy where the end is
not unlawful and where the acts done are such as, if done by an
individual, would not be wrong. In other words, they want statutes
to provide that nothing is a conspiracy where the acts done are
in themselves lawful if done by one individual. But this English
conspiracy law was of the most immense sociological value, in that it
did recognize the tremendous power of _combination_. It said, although
you don't have to trade with Smith alone, yet a combination of a
great many individuals for the purpose of ruining Smith, by all
simultaneously refusing to trade with him, is such a tremendous injury
to Smith that the law will take cognizance of it and hold that kind of
a combination to be unlawful.
Public-domain text, read in full here on John Shaqi.
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