order to secure themselves against encroachment, the patentees were armed with high and arbitrary powers from the council, by which they were enabled to oppress the people at pleasure, and to exact money from such as they thought proper to accuse of interfering with their patent. The patentees of saltpetre, having the power of entering into every house, and of committing what havoc they pleased in stables, cellars or wherever they suspected saltpetre might be gathered, commonly extorted money from those who desired to free themselves from this damage or trouble. And while all domestic intercourse was thus restrained, lest any scope should remain for industry, almost every species of foreign commerce was confined to exclu sive companies, who bought and sold at any price that they themselves thought proper to offer or exact." It will be observed that monopolies of this character were created, not by a combination of individuals, or of companies, but by royal patents. The legality of such patents was subsequently questioned, and in 1602, in the use of Darcy v. Allen, they were declared void. In this case the court set forth the evils of monopolies in the following propositions, viz.: First. "The price of the same commodity will be raised, for he who has the sole selling of any commodity, may and will make the price as he pleases. second incident to a monopoly is, that after the monopoly granted the commodity is not so good and merchantable as it was before: for the patentee, having the sole trade, regards only his private benefit, and not the commonwealth. Third. It tends to the impoverishment of divers artificers and others, who before, by the labor of their hands in their art or trade, had maintained themselves and their families, who now will of necessity be constrained to live in idleness and beggary."3

1 Hume, History of England (Harper's Ed.), 335-336.

The

is entitled, "The Case of the Monopolies." The following is the

2 Darcy v. Allen, 11 Coke, 84; statement of the case as it appears

S. C., Noy, 173.

3 Darcy v. Allen, 11 Coke, 84, 86; s. C., Noy, 173. This case in Coke

in the quaint language of the ancient reports, to-wit: Edward Darcy, Esquire, a groom of the

§ 6. Statutory Enactments.-The position of the court. in the case above noticed was subsequently confirmed by statute. An Act of 1623, among other things, provided "that all monopolies, and all commissions, grants, licenses,

charters, and letters patent heretofore made or granted, or hereafter to be made or granted, to any person or persons, bodies politic or corporate whatsoever, of or for the sole buying, selling, making, working or using of anything within this realm, or the dominion of Wales, or of any other monopolies or power, liberty or faculty, to dispense with any others, or to give license or toleration to do, use or exercise anything against the tenor or purport of any law or statute; or to give or make any warrant for any such dispensation, license or toleration, to be had or made; or to agree or compound with any others for any penalty or forfeitures limited by any statute; or of any grant or promise of the benefit, profit or commodity of any forfeiture, penalty or sum of money, that is or shall be

cards, none of which were made within the realm, or imported within the realm by the plaintiff or his servants, factors or deputies, etc., nor marked with his seal, he had imported within the realm, and then had sold and uttered to sundry persons unknown, and showed some in certain, wherefore the plaintiff could not utter his playing cards, etc. Contra formam prædict literar patentium, & in contemptum dictæ dominæ reginæ, whereby the plaintiff was disabled to pay his farm, to the plaintiff's damages. The defendant, except to one-half gross, pleaded not guilty, and as to that pleaded that the city of London is an ancient city, and that within the same, from time whereof, etc., there has been a society of haberdashers, and that within the said city there was a custom, quod quælibet persona de societate illa, usus fuit & consuevit emere, vendere & libere merchandizare omnem rem & omnes res merchandizabiles infra hoc regnun angliæ de quocunque, vel quibus cunque personis, etc., and pleaded that he was

civis & liber homo de civetate & societate illa, and sold the said half gross of playing cards, being made within the realm, etc., as he lawfully might, and upon which the plaintiff demurred in law." The demurrer was not sustained. The report of the case concludes with these words of the reporter: "And nota reader, and well observe the glorious preamble and pretense of this odious monopoly. And it is true, quod privilegia quæ re vera sunt in prejudicium reipublicæ, magis tamen speciosa habent frontispicia & boni publici pretextùm, quaum bonæ & legales concessiones, sed pretexu, liciti non debet admitti illicitum. And our Lord, the King that now is, in a book which he, in zeal to the law and justice, commanded to be printed Anno 1610, entitled, ‘A Declaration of his Majesty's Pleasure, etc., p. 13, has published, that monopolies are things against the laws of this realm; and therefore expressly commands that no suitor presume to move him to grant any of them."

due by any statute, before judgment thereupon had; and all proclamations, inhibitions, restraints, warrants of assistance, and all other matters and things whatsoever, any way tending to the instituting, erecting, strengthening, furthering or countenancing of the same or any of them, are altogether contrary to the laws of this realm, and so are and shall be utterly void and of none effect, and in no wise to be put in use or execution. A statute of the reign of George III. provided that a combination of five or more persons for the purchase and sale of coals shall be unlawful and punishable by indictment.2 Combinations of this character were offenses at common law. At a later period the rigor of the statutory enactments against monopolies in restraint of trade were somewhat relaxed, and by a statute of George III., that of the 5th & 6th of Edward VI. was repealed. While this statute indicates a purpose to abrogate the common law offense, by the repeal of the statute of Edward VI., against monopolies, the courts put their own construction upon the enactment and continued to hold that the creation of a monopoly was an offense at common law. It was held that in order to create a monopoly, in the legal sense of that term, it was not necessary to obtain possession of the whole of any product, or even of any large part of it. It was sufficient that their was engrossing to such an extent as to enable the holders to increase the price at a specified time and place. In a case tried in 1800, Lord Kenyon stated the rule, as established at that time, as follows: "Again it is urged that the quantity purchased cannot constitute the offense of engrossing, unless it bear such a proportion to the consumption of the whole kingdom as will affect the general price. This objection is new to me, but if the opinions of Lord Mansfield, Mr. Justice Dennison and Mr. Justice Foster, are deserving of attention, there is as little in that objection as in the rest. I well remember an information moved for before

1 20 James I., chap. 2.

2 28 Geo. III., chap. 53, § 2.

3 Thompson's Law Dictionary,

tit. "Monopolies."

4 12 Geo. III., chap. 71.

them against certain persons for conspiring to monopolize or raise the price of all the salt at Droitwich. They had no doubt of its constituting an offense, although it was not pretended that these persons had endeavored to engross all or any considerable part of the salt of the kingdom. Nor was it questioned but that the monopolizing of salt was an offense at common law."1

§ 7. The Doctrine Modified.-—At a later period, as modern improvements in machinery and manufactures came into use, and under the influence of steam navigation and railway