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
This is a remarkable report, for in twelve lines (ten lines of the law
Latin) we have here set forth all the important principles of the law
of boycott. The abbot complains that the Shrewsbury people do him
many injuries "against his liberty," _i.e._, the abbot claims a
constitutional right to freely conduct his own business; then we have
the recognition of the threat of a boycott as a particularly illegal
act: "They have caused _proclamation_ to be made that none sell
merchandise to the abbot." This is nothing but our modern "unfair
list." The defendants admit the illegality of their conspiracy,
because they deny it as a fact; and the bedell likewise denies that he
ever made such proclamation or threat, whereupon (the plaintiff being
a man of the church) they are set to trial by wager of law instead of
by actual battle, neither party nor the court making any question of
the illegality both of the conspiracy and of the act complained of.
There is no question then that all contracts in unreasonable restraint
of trade were always unlawful in England and are so therefore by
our common law. There was probably no real necessity for any of our
anti-trust acts, except to impose penalties, or, as to the Federal or
Sherman Act so-called, to extend the principles of the common law to
interstate commerce, which is under the exclusive jurisdiction of the
Federal government. The common law, however, made the exception of
_reasonable_ restraint of trade, which the Sherman Act does not; that
is to say, a contract between two persons, one of whom sells his
business and good-will to the other and agrees not to embark in the
same trade for a certain number of years or in a certain prescribed
locality, was a reasonable restriction at the common law. So, if two
merchants going down town to their business agree in the street car
that they will charge a certain amount for a barrel of flour or a ton
of coal that week, this would probably be regarded as reasonable at
the common law; but the common law, like these early statutes of
England, looked primarily, if not exclusively, to the welfare of the
consumer; they always speak of the common weal of the people, or
of combinations to the general hurt of the people, and general
combinations to fix prices or to limit output are therefore always
unlawful; so a combination that only one of them should exercise a
certain business at a certain place--like that of our four great
meatpacking firms, who are said to have arranged to have the buyer
for each one in turn appear in the cattle market, thus being the
only buyer that day--would be unlawful, when the restraint of trade
resulting from an ordinary purchase would not be.
Public-domain text, read in full here on John Shaqi.
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