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
(1436) Now, perhaps, we find the first use of the expression
"restraint of trade," that most important phrase, in a statute
forbidding by-laws of guilds or corporate companies "in restraint of
trade," also forbidding unlawful ordinances by them as to the price
of their wares "_for their own profit and to the common, hurt of the
people_," and such by-laws are made penal and invalid except when
approved by the chancellor; and this statute of Henry VI is re-enacted
again in 1503 under Henry VII, where by-laws of guilds, etc.,
restraining suits at law are made unlawful, and so "_ordinances
against the common weal of the people_." The meaning and importance of
such legislation as this has been, I hope, made clear above. Note the
words "_to the common hurt of the people_" and "_against the common
weal of the people_." From this century, at least, therefore, dates
that doctrine of the common law which makes unlawful any contract or
combination in restraint of trade, and it was left for the succeeding
century to develop the last great principle, that against monopoly,
caused either by unlawful combination of individuals or grant by the
crown itself.
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 (1335), 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 (of which
there are many) 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 (with eleven compurgators), and do come on
Saturday with his law."
Public-domain text, read in full here on John Shaqi.
Reviews
Reviews
No reviews yet
Be the first to share your thoughts on this work.
Elsewhere in the archive
Join the Discussion
Join the discussion
Sign in to leave a comment or review.
Sign InorCreate an account