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right to carry on their trade, and that to deprive them of that right by any means is a wrong. But the right of the plaintiffs to trade is not an absolute, but a qualified right-a right conditioned by the like right in the defendants and all Her Majesty's subjects, and a right, therefore, to trade subject to competition. Now, I know no limits to the right of competition in the defendantsI mean no limits in law. I am not speaking of morals or good manners. To draw a line between fair and unfair competition, between what is reasonable and unreasonable, passes the power of the courts. Competition exists when two or more persons seek to possess or to enjoy the same thing. It follows that the success of one must be the failure of another, and no principle of law enables us to interfere with or to moderate that success or that failure, so long as it is due to mere competition. I say mere competition, for I do not doubt that it is unlawful and actionable for one man to interfere with another's trade by fraud or misrepresentation or by molesting his customers or those who would be his customers, whether by physical obstruction or moral intimidation. The cases of Garret v. Taylor (1), Tarleton v. McGawley (2), Keeble v. Hickeringill (3), Carrington v. Taylor (4) are all cases of interference by physical acts, driving away either the birds or the customers from the plaintiffs places of business. Other cases were cited in which one man has persuaded another who is under some contract of service to a third to break that contract to the damage of such third person, and the persuasion has been held actionable. But no case has been or, I believe, can be cited where the only means used by the defendant to injure the plaintiff has been competition pure and simple. I think that if we were now to hold interference by mere competition unlawful we should be laying down law both novel and at variance with that which modern legislation has shown to be the present policy of the State.
But, if one man may by competition strive to drive his rival out of the field, is it lawful or unlawful for several persons to combine together to drive from the field their competitor in trade? It is said that such an agreement is in restraint of trade, and therefore illegal. Be it so. But in what sense is the word “illegal” used in such a proposition? In my opinion, it means that the agreement is one upon which no action can be sustained, and no relief obtained at law or in equity; but it does not mean that the entering into the agreement is either indictable or actionable. The authorities on this point are, I think, with a single exception, uniform. In Mitchell v. Reynolds (5), Parker, C. J., in discussing contracts in restraint of trade, says: “ It is not a reason against them that they are against law, I mean, in a proper sense, for in an improper sense they are." In Price v. Green (1), Patterson, J., in delivering the judgment of the exchequer chamber upon a covenant held void as in restraint of trade, said expressly that it was “ void only, not illegal." In Hilton v. Eckersley (2) the bond was addressed, not as in Mitchell v. Reynolds (3), only to negative acts, such as not trading, but to positive acts, such as carrying on works under particular directions, and closing the works at the dictation of a majority of the combining owners. In this case all the judges, both in the courts of queen's bench and in the exchequer chamber, held that the bond could not be enforced; but Crompton, J., alone thought that it created an indictable offense, Lord Campbell, C. J., and Erle, J., expressing an opposite opinion, and the court of exchequer chamber carefully abstaining from expressing any opinion on the point. The language of all the judges in the cases of Hornby v. Close (4) and Farrer v. Close (5) is consonant with that of Lord Campbell and Erle, J., in Hilton v. Eckersley (2), and Crompton, J., is, I believe, the only judge who has ever hitherto held such contracts illegal as well as void.
If every agreement in restraint of trade were not only void, but unlawful in the stricter sense of the word, it would follow that, as every agreement must be between at least two persons, every such agreement would constitute an indictable offense, and yet not a single case has been cited of a conspiracy constituted by a mere agreement between two persons in undue restraint of trade by one of the contractors. This silence of the books is very significant.
It was forcibly urged upon us that combinations like the present are in their nature calculated to interfere with the course of trade, and that they are, therefore, so directly opposed to the interest which the State has in freedom of trade, and in that competition which is said to be the life of trade, that they must be indictable. It is plain that the intention and object of the combination before us is to check competition; but the means it uses is compeition, and it is difficult, if not impossible, to weigh against one another the probabilities of the employment of competition on the one hand and its suppression on the other;
nor is it easy to say how far the success of the combination would arouse in others the desire to share in its benefits, and by competition to force a way into the magic circle. In Wickens v. Evans (1) it was suggested that the brewers or distillers of London might enter into an agreement to divide the metropolis into districts, the effect of which might be to supply the public with an inferior commodity at a higher price. This argument was met by Hullock, B., by this observation : "If the brewers or distillers of London were to come to the agreement suggested, many others persons would soon be found to prevent the result anticipated, and the consequence would, perhaps, be that the public would obtain the articles they deal in at a cheaper rate." A similar observation may be made in the present instance and corroborated by what has actually happened. For the case before us strikingly illustrates the difficulty of foretelling the probable results of such a combination on the public interest; in fact, the competition betweeu the plaintiffs and defendants in Jay and June, 1885, brought down the freights from Hankow to the benefit, it must be supposed, of the consumer in England. The conference came to an end in August, 1885, and in the summer of 1886 the rate of freight from Hankow was determined by free competition in an open market in which the defendants were competing with one another.
But I do not rest my conclusion on any speculations as to the probable effect of such agreements to the one before us but on this: That the combination, if in restraint of trade, is prima facie, void only, and not illegal; that no statute in force makes such competition criminal; and that the policy of our law, as at present declared by the legislature, is against all fetters on combination and competition, unaccompanied by riolence or fraud or other like injurious acts.
The ancient common law of this country and the statutes with reference to the acts known as badgering, forestalling, regrating, and engrossing, indicated the mind of the legislature and of the judges that certain large operations in goods which interfered with the more ordinary course of trade were injurious to the public; they were held criminal, accordingly. But early in the reign of George III, the mind of the legislature showed symptoms of change in this niatter, and the penal statutes were repealed (12 Geo., 3, c. 71), and the common law was left to its unaided operation. This repealing statute contains in the preamble the statement that it had been found by experience that the restraint laid by several statutes upon the dealing in corn, meal, flour, cattle, and sundry other sorts of victuals, by preventing a free trade in the said commodities, had a tendency to discourage the growth and to enhance the price of the same. This statement is very noteworthy. It contains a confession of failure in the past; the indication of a new policy for the future.
This new policy has been more clearly declared and acted upon in the pres. ent reign, for the legislature has, by 7 and lic., c. 24, altered the common law by utterly abolishing the several offeuses of badgering, engrossing, forestalling, and regrating. At the same time this repeal was accompanied by a proviso that nothing in the act contained should apply to the offense of knowingly and fraudulently spreading or conspiring to spread any false rumor with intent to enhance or decry the price of any goods or merchandise, or to the offense of preventing or endeavoring to prevent by force or threats any goods, wares, or merchandise being brought to any fair or market, but that every such offense might be punished as if this act had not been made. The comparison of the operative part of the statute with this proviso goes far to draw the line between lawful and unlawful interference with the ordinary course of trade or of the market. A consideration of the statutes relative to trade unions leads me to a similar conclusion. It is not necessary to consider in detail the provisions of the statutes of 1871 and 1875 (34 and 35 Vic., c. 31, and 39 and 40 Vie., c. 22); but one of their principal results was to enlarge the power of combination between workmen and workmen and between masters and masters for the purpose of maintaining and enforcing their respective interests, and to remove the objection of being in restraint of trade, to which some of such combinations had been oboxious. But while the legislature thus set masters and men rester tively free to combine, they reasserted the illegality of using violence, threats, molestation, obstruction, or coercion; and here again the contrast between the two pieces of legislation which stand side by side in the statute book, the one declaring mere combinations lawful and the other declaring violence and other like acts unlawful, helps to draw the line in the same direction as does the legislation in respect of trade combination. (See the statutes 34 and 35 Vic. c. 31 and c. 32.)
Thus the stream of modern legislation runs strongly in favor of allowing great combinations of persons interested in trade, and intended to governor regulate the proceedings of large bodies of men, and thus necessarily to interfere with what would have been the course of trade if unaffected by such combinations. I therefore conclude that the combination in the present case can not be held illegal, as opposed to the policy of the law.
It remains to inquire whether the authorities assist in the decision of the question before us. As regards an individual. I have already pointed out that for one man to interfere with the lawful trade or business of another by molestation or any physical interference or by fraud or misrepresentation may be an actionable wrong. But no authority appears to show that for one man to injure the business of another by mere competition, even though it may be successfully directed to driving the rival out of the town where he dwells or out of tlie business which he carries on, is actionable. And the silence of the books is strong evidence that such acts are not actionable.
With regard to like acts done by a combination of persons, the authorities are not very numerous. There are certain general statemen s in textbooks of which the passage in Hawkins' Pleas of the Crown (vol. 1, p. 446) may be taken as a fair specimen : “ There can be no doubt,” he says, “but that all confederacies whatsoever, wrongfully, to prejudice a third person are highly crimival at common law, as where divers persons confederate together by indirect means to impoverish a third person.” For this proposition Hawkins cites authorities relative to two cases: First, Rex v. Kimberty (1), which was a conspiracy to indict the prosecutor for having begotten a bastard child on the body of one of the conspirators, a case, therefore, which has nothing to do with the question now in hand; secondly, Rex 1. Sterling (1), in which the indictment charged certain brewers of London with a conspiracy to refuse to sell small beer, with a view to impoverish the excisemen, and with intent to move the common people to pull down the excise house and to bring the excisemen into hatred of the people and to impoverish and disable them from paying their rent to the King; the defendants were found guilty of counseling and assembling to impoverish the excisemen and not guilty of the residue, and thereupon ultimately judgment went for the Crown. The real ground of the decision was, as stated by Holt, C. J., in Reg. v. Daniell (2), that the offense of the defendants was of a public nature and leveled at the Government, and it is therefore no authority in respect of a combination which has no such object or effect. But one argument as it appears in Siderfin is important. It was urged for the defendants that it was no offense, punishable by our law, for one man to depauperate another with a view to enrich himself or by selling commodities at cheaper rates. The court did not deny this proposition, but drew a distinction based upon the allegations of the information, which were supported by the verdict, that the excise was parcel of the revenue of the King, and that to impoverish the excisemen was to render them incapable of paying these revenues to the King. So far, therefore, as the case goes it is an authority rather for the defendants than for the plaintiffs in this case.
The next case that seems relevant is Rex v. Eccles (3) before Lord Mansfield and the court of king's bench. The defendant and six other persons had been convicted on two counts charging that the defendants and others, devising unlawfully and by indirect means to impoverish one Booth, and to hinder him from exercising the trade of a tailor, conspired, by wrongful and indirect means, to impoverish him and to hinder him from exercising his said business, and that the defendants, according to their said conspiracy, did so hinder him. It was moved in arrest of judgment that the means by which the mischief was to be effected ought to have been set out, but the indictment was held sufficient. The nature of the acts done by the defendants does not appear, nor is it easy to learn precisely on what principle the court proceeded. Lord Ellenborough, in Rex v. Turner (1), said that the case seemed to have been determined on the ground of restraint of trade-in which case it would probably be no authority since the legislation of this reign with reference to trade unions. If regarded as an authority merely on the sufficiency of the indictments, it appears open to some question. In any event it throws no clear light on the matter now for decision.
The case of Cousins v. Smith (2) is probably not applicable, since it proceeded on the view of a court of equity of forestalling and regranting, and those practices are not now lawful. The equitable shadow of these crimes must, I think, have disappeared with the crimes themselves.
These are, so far as I am aware, all the relevant authorities, and none of them appears to me to support the proposition that mere competition of one set of men against another man carried on for the purpose of gain and not out of actual malice is actionable, even though intended to drive the rival in trade away from his place of business, and though that intention be actually carried into effect.
For these reasons I hold that the judgment of the lord chief justice was right and that the appeal should be dismissed with costs. Appea) dismissed.
(Solicitors for plaintiffs, Gallatly & Wharton; solicitors for defendants Freshfields & Williams.) STATEMENT OF MR. T. CUSHING DANIEL, OF WASHINGTON, D. 'c.
Mr. DANIEL. Mr. Chairman and Senators, I heard the statements made by Judge Gary and Mr. Perkins and several others, and it occurred to me it would be a matter of interest to the 95,000,000 people who are waiting on the outside to have in the record the number of attorneys who have appeared here who are identified, directly or indirectly, with corporations, as I want to appear, as far as I can, in the interest of the 95,000,000 people. Has there been anybody before this committee other than attorneys for corporations?
Senator BRANDEGEF. Are you asking that as a question?
Senator CUMMINS. Very many people who have not been attorneys for corporations, and a great many who are not attorneys at all.
Mr. DANIEL. Have they? The object in putting that in the record is to draw out, to a certain extent, a statement I will present to the committee. I will say, first, not as a matter of egotism, but because I want to place myself squarely before the committee, that I was in commercial life for a great many years in New York, and was a general salesman for Tefft, Weller & Co. They did a business of $15,000.000 a year, and I came in contact with the heads of the departments, and have been, to a certain extent, identified with commercial enterprises all my life. Subsequently I studied law, and for 15 years have taken a very direct interest in all the proceedings in Congress, especially as applied to the question of money. In recent years I have been twice to Europe, and there investigated industrial and banking and monetary conditions. It occurred to me that somebody squarely interested in the welfare of the people of the United States ought to be heard to prescribe, probably, a remedy that has not occurred to the committee at all. As a matter of fact, before you prescribe for a disease, as the body politic is very much like the physical body, the question is to have a correct and accurate diagnosis of the trouble we are suffering from and to find out how it originated. I will go back and give what I consider to be the cause of the formation of trusts in the United States.
In the early history of this country, immediately after the warin fact, previous to the war—the main business of this country was done by dry-goods merchants in New York. They were the importers of things needed in this undeveloped country. As soon as the war came on the southern trade, which was a very profitable one, was practically destroyed. The energetic and enterprising men in the
dry-goods business saw at once it would be very profitable to export United States bonds instead of importing merchandise. They took advantage of what had occurred in England. For instance, William Pitt, who was one of the greatest men England ever produced, was chancellor of the exchequer of England. The Government being in great need of supplies, they approached the Bank of England, which was a close corporation, a private enterprise with which the English Government had nothing in the world to do. The bank, represented mostly at that time by the Rothschilds, stated to Pitt that if he would allow them to issue notes upon a Government debt to the extent of £3,000,000, they would loan him that amount of money for five years without interest, and that they should have the privilege of issuing the bank's notes against that public debt. That was the beginning of this idea of issuing a public debt and predicating credit money on it. Subsequently, realizing his mistake, William Pitt, chancellor of the exchequer, said of the inauguration of the first national bank in the United States, under Alexander Hamilton:
Let the American people go into their debt-funding schemes and banking systems, and from that hour their boasted independence will be a mere. phantom.
We, in the United States, established a republican form of government, but we had engrafted upon that republican form of government a European money system; in other words, the national bank in this country was a counterpart of that idea. It stated to the Government of the United States, “ If you will allow us to buy your United States bonds and will take them back and allow us to issue 90 per cent in money on them, we will float your public debt.” As a matter of fact, the United States, just as England did, surrendered to banking corporations that great sovereign right to create and issue money.
The dry-goods men, who developed into financiers, bought those bonds, in conjunction with the national banks, for $65, and sold them as high as $130. The first interest was 3.3 per cent. Morgan, Belmont, and all these American financiers were simply the pupils of the English money lenders. Having realized this tremendous profit out of selling the Government debt, they conceived the idea, when the Government debt was practically placed—a great deal of it in European hands—that “Here are the great railroad systems of the United States. Why can we not manufacture bonds and stock on the great railroads of the United States and repeat this operation? We have found it very satisfactory and profitable.” Back in 1878 the preliminary trust agreement of the Standard Oil people was drawn up. In 1880 Morgan and his financiers met in his Madison Square home and there consolidated railroads simply to manufacture debts on them. That was their object. They never built railroads. But they found that there was the point where millions could be made. Morgan succeeded in engineering the railroads in such a way that in the eighties the holding and voting trusts had corralled the railroad systems of this country. They formulated the Northern Securities Co. and the Southern Securities Co. with the purpose of practically taxing the internal commerce of this country amounting to between $20,000,000,000 and $30,000,000,000 annually; that was the object. I mention these things to show that these men are past