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The test came when the oligarchy undertook to force America to relieve the East India Company of its surplus tea, which was bringing it near to insolvency. Had the oligarchy succeeded America would have been saddled with the payment of the double rent. As Pitt foresaw, America resisted, and the landlords, to test the issue, fought first from 1775 to 1783, when they made peace from exhaustion, and afterward from 1812 to 1815. Nor did the oligarchy frankly admit defeat until Wellington convinced them that they could not conquer America without a navy on the Lakes whose cost they could not meet, for, in 1815, labor was starving. Then the oligarchy surrendered and the inevitable confiscations followed. In 1783 Pitt, when he proposed reform, contemplated paying owners for the boroughs he might take, but in 1832 borough property of inestimable value was confiscated. For the value of the boroughs lay not in the income they yielded to patrons, large as that might be, but in the power to control prices which rested with Parliament. The reformed Parliament ignored the landlords and cheapened the cost of living. In 1846 it repealed the Corn Laws, in 1848 it ruined the West Indies to give England cheap sugar, in 1879 American competition pretty nearly wiped out the double rent, and since then Parliament has consistently legislated with the object of throwing the burden of cheap labor on the land monopoly. So generally is this policy recognized that landlords, like the Duke of Bedford, are apt to sell when they

As Cobden observed, the fortunes of England have turned on American competition.

The fall of the oligarchy was the direct effect of the refusal to recognize the property rights of labor. When, after the close of the American Revolution, the oligarchy contemptuously rejected Pitt's offers of compensation for their boroughs, at the same time forcing him to raise the tariff on grain by the Act of 1791, they undertook, with their eyes open, to collect the whole of the double rent out of the wages of labor. To this end they made, what was

tantamount to, a regular alliance with industrial capitalists, who were, in substance, guaranteed the power of fixing wages to their own liking. Legislation against combinations by laborers to constrain employers had existed in various forms since the reign of Edward I, but the onslaught on industrial labor combinations only reached its acute stage, at this precise moment, after the close of the American Revolution, culminating in the famous statutes of 1799 and 1800. These statutes, I take it, established a new legal principle. Before the American War, it had always, at least in theory, been assumed that in controversies between masters and journeymen, journeymen had rights in their wages which the State should protect, by, in the last resort, regulating wages by a judgment. The statutes of 1799 and 1800 put the law on a different plane. If I apprehend the legal proposition then adopted correctly, it came to this. The capitalist was assumed by those statutes to have such complete ownership of his factory and of all it contained, that a combination of his workmen to reduce the income his investment yielded him, by diverting more of his profits than he chose to assign to that purpose toward an increment in their wages, was as much a tort or a crime as any other wilful injury to the property of a neighbor would be, which had neither justification nor excuse. As Lord Jeffrey said at a dinner to Hume in 1825, the employer, if he chose to reduce wages by that method, might dismiss a thousand workmen at a given moment, but it was made a crime for those same thousand workmen to quit the service of the master in order to compel him to raise wages. And not only was this legal dogma enforced by savage penalties, but the oligarchy guarded their property rights in Parliament quite as jealously as ever any despot guarded his sovereignty. To agitate for a reform of Parliament, or, in other words, for the nationalization of proprietary boroughs, ranked as treason. That was the offense of Hardy and Horne Tooke, who were indicted for treason by Eldon and defended by Erskine in 1794,

while the charge to the jury, in the trial of Thomas Muir for sedition in 1793, in Scotland, now reads like the raving of a maniac. "It requires no proof, gentlemen," said the Chief Justice, "that the British constitution is the best that ever was since the beginning of the world, and it is not possible to make it better." He then told the jury to do their duty, as they could no more doubt the defendant's guilt than he. And so, for making a speech in which he advocated "an equal representation of the people" in the House of Commons, Muir was sentenced to transportation for fourteen years as a felon.

While the long wars lasted and gave incidental protection, the oligarchy managed to maintain itself, but with peace, in 1815, competition in the American market became an established and uncontrollable fact, and the oligarchical structure crumbled. Prices of English manufactures fell to conform to the universal scale of prices, and wages had to correspond. Famine does not consist in scarcity but in inability to buy food, and in this form, in 1816, famine raged in the industrial towns of England. It was easier, men said, to be shot than to starve, and vast meetings were held at which the people were incited to arm. On August 16, 1819, such a meeting at Manchester was dispersed by a regiment of Hussars, who charged into the crowd, killing eleven and wounding several hundred. At this time Lord Castlereagh led the House of Commons, and Lord Eldon ruled in the Lords. Place, the Westminster tailor, was the heart of the opposition. With what intense bitterness feeling on both sides ran may be seen in Place's correspondence. The Manchester magistrates are inconceivable brutes, he wrote to Hobhouse, in relating a conversation with an employer. One of them swears, "damn his eyes, seven shillings a week is plenty for them." "The sons of bitches have eaten up all the stinging nettles for ten miles round Manchester, and now they have no greens to their broth." "How could I sell you goods so cheap if I cared anything about them.”

In this temper Parliament met and Castlereagh and Eldon had no difficulty in obtaining the passage of the famous Six Acts, whose object was to give the oligarchy an absolute power of repression. But it was one thing to vote such laws and another to enforce them. When the landlords actually faced insurrection they flinched. The laws were repealed or allowed to expire. Castlereagh broke down and killed himself in 1822. Eldon was quietly set aside by his colleagues in the Cabinet, and in 1824 and 1825 Place succeeded in obtaining the repeal of all the Combination Acts with which the statute books were crammed.

This repeal marks the shift in the equilibrium of English society, for the landlords having failed to keep their engagement with the manufacturers touching wages, the manufacturers had no alternative but to combine with labor against the landlords in order to seize on the landlords' political power and obtain cheap food. Then came in logical sequence, first, the Reform Bill, and so the whole procession of enactments which have destroyed the value of English land and annihilated the English landed class. With this phase of industrial development I have nothing further now to do. My object in this historical summary is only to present the legal difficulty which is, I apprehend, at the root of most of our present troubles in America. When the Parliament, in 1825, repealed the Combination laws, it did not develop any principle to guide the courts in determining the relative rights of the public, capital and labor, in disputes touching wages. The situation then came to this: The mediaeval theory of the duty of Government to intervene to settle controversies between employer and employed, by a judgment between the parties, had been abandoned. The capitalistic doctrine of the absolute rights of the owner in industry had broken down. Therefore, labor quarrels were left to be settled by a contest of endurance between the parties, or, in other words, by private war. And the same condition was, afterward, created in the United States by Shaw's decision in Commonwealth

v. Hunts in which he assumed that none of the English legislation against combination had ever been in force in America, while no one pretended that our magistrates could regulate wages. Since 1842, when Commonwealth v. Hunt was decided, competition has steadily gained in intensity, until now labor and capital are massed in hostile camps, with, ordinarily, antagonistic interests, too powerful to be coerced by existing law, and in such a position that a struggle between the two, at least where monopolies are concerned, may at any moment paralyze the national life. Hence, apparently the time has come when the law must be developed to cover the emergency, or serious social confusion must supervene.

I apprehend that a monopoly may be defined as a power inhering in one or more persons arbitrarily to raise the price of an article of commerce, more especially of a necessary of life; and that this is a sound definition I think will appear on a very little consideration."

The control of prices may be divided into three categories. The first category consists of a possible power among one or more vendors of any article of commerce, to reduce the price thereof, but to do nothing more. Such a condition represents free competition and, though it may lead to monopoly by destroying weak competitors, it is not monopoly. The second category in the control of prices, is the ability of one or more among several vendors, to keep prices at a fixed point by the threat of reprisals. Thus railways often make equal prices to common points, the schedule of rates being enforced by the threat of a rate war, if not maintained. There we have modified competition, the competition consisting not in the offer to the public of lower prices for transportation, but of better service for the same money. This also is not monopoly. The third category in the control of prices is monopoly itself, and monopoly exists when one or more individuals have

84 Metcalf, 111.

9 See National Cotton Oil Company v. Texas, 197 U. S., 115.

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