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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 The laws were repealed or allowed to expire.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 When the Parliament, in 1825, repealed the Combination laws, it did not develop any principle to guide the courts in determining the relative rights of the public, capital and labor, in disputes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.
the power of arbitrarily raising a commercial price. Also any uncontrolled monopoly price is equivalent to a tax, since vendees have no redress against extortion. For example, a monopoly of salt is a favorite form of taxation, and, when the power to enforce such a monopoly is lodged with the sovereign, it is legitimate. Vested in private, or quasi-private hands, its exercise has usually led to revolt. Queen Elizabeth nearly brought on a rebellion by her grants of monopolies, one of which, in a test case, the King's Bench held illegal,10 because the Crown alone cannot tax the subject without the consent of the rest of Parliament.
Nor do I remember an instance in which any modern people, relatively free, has endured patiently this absorption of a sovereign power wy private persons for private purposes. Beyond controversy America does not endure private monopoly patiently, and the abuse of private monopoly by individuals has led to the regulation by government of the prices charged by most so-called public utilities, such as railway rates, water rates, gas rates, telephone rates and the like. Other monopolies the people have tried to suppress by statutes like the Sherman Act, but legislation can never enforce competition where people do not wish to compete, though legislation may readily destroy a civilization, as it often has in the past. Especially legislation is used to confiscate, either directly or indirectly, private property, and, as I have tried to show, favored classes usually have suffered from such confiscations, when they have permitted themselves to become too much attenuated, and to be caught between two adversaries, who have combined in an attack, because they have been too greedy. It was so with the feudal nobles, it has been so with the modern British landlords, and it promises to be so, unless they take heed, with American capitalists. I will take, to illustrate my thesis, an arbitration held
10 Case of Monopolies, 11 Reports, 84.
in a late strike on the Boston Elevated Railway, whose rates are fixed by law. A strike occurred, and ultimately the issue was narrowed to the question whether as between a reasonable advance in wages and a reduction in reasonable dividends, the loss should be shared, or should fall wholly on capital. The board of arbitration being divided, the decision rested with the chairman, a banker, who is also a lawyer. He held, in substance, that, the laborer having no interest in the property, his wages must be a fixed charge on earnings, and, as such, if reasonable, must take precedence of a division of profits. As the law stands, I can see no escape from this reasoning, but to me it demonstrates the fallacy of the modern legal theory that labor has no property rights in the industry which it promotes. Had it such recognized rights it would share in profits and losses, and would be interested with, and not antagonistic to, capital. Most certainly labor has in fact some property rights in industry, since it can defend those rights by force, just as the mediaeval villein had some rights in his land, and just as the Irish farmer has asserted and established his tenant right. With that right recognized by law, modern society would, apparenty, become cohesive. With that right unrecognized by law, but maintained by force, we have, what is in substance social warfare, waged with more or less violence, as it was so long waged in Ireland. Also I take it to be indisputable that the ablest and most intelligent industrial administrators of the present day recognize tacitly property rights in labor, and endeavor to induce their workmen to become investors in their enterprises, that labor may have a common interest with capital in profits. In this policy the United States Steel Corporation is conspicuous.
Nevertheless, private individuals, however enlightened, can reach no comprehensive results in large movements such as these, unless they are sustained by a legal principle enforced by the courts, for it is evident that private agreements may be broken, or managements may change, and worst of all, labor without legal protection, has no guaranty against dishonesty or negligence in directors. Yet if monopolies are to submit to State regulation in prices on the one hand, and, at the same time, on the other, are to be subjected to unrestrained attacks by workmen for advances in wages, while workmen are indifferent to profits, it is self-evident that sooner or later capital must, to protect itself, either seize upon the rate-regulating power, or else be ground between the upper and the nether millstone. I have here tried to show that every wealthy class, which has allowed itself to be attenuated and isolated, has met this fate, within the long interval which has elapsed since the Norman Conquest.
Assuming for a moment my argument to be sound, it does not appear to be excessively arduous to formulate a. legal theory to cover the rights of labor in monopolies, supposing that the status of monopoly should be first established in each case, by something tantamount to judicial decree. Nor would it be difficult for a court to determine whether, as a matter of fact, a monopoly existed, if a monopoly should be held to inhere in the power arbitrarily to raise prices. Workingmen entering the employment of corporations thus recognized and regulated by the State, would not serve as men hired during the pleasure of a master, but as civil servants, holding during good behavior, with corresponding promotion, and a pension after a term of years. They would probably be guaranteed some minimum living wage to be increased by a percentage on profits, an agreed portion of which might be paid in the securities of the company, as the United States Steel sells its share to its employes at reduced rates. Also, under Government oversight, monopolies would pass into the category of trust estates, whose directors would be responsible as trustees, receiving compensation commensurate with their responsibility.
To such a proposition it will be objected that our gov