But, however the question may stand upon the points we have already discussed, a rule has been often laid down and approved of, that if one of two innocent persons must suffer by the fraud of a third, the loss shall fall upon him who enabled the third to commit the fraud. The law with regard to factors was an exception to this rule; for when a factor had, without authority, pledged the goods of his principal, and carried off the money, the loss fell upon the lender, who had taken the goods as his security; whereas the principal was the person who had, by trusting the goods without a qualified bill of lading, enabled the factor to hold himself out as owner, and so to commit the fraud, when he might have prevented all the mischief by adding two words to the bill of lading. Upon this principle it is that Chief Justice Best says, "where the

title to the goods offered in pledge, it is
gravely urged by Mr. Scarlett, that the
letters of advice respecting the cargo
could be easily produced. Such a pro-
posal is utterly inconsistent with the prac-
tice of trading. The letters of advice
contain, in general at least, an account of
the price given and the price expected,
two facts which the seller would of course
be anxious to conceal. They contain also,
for the most part, notices of the state of
the market in other places, the smallest
hint of which is often of infinite value, if
exclusively known, but that value dimi-
nishes in proportion as it is made public,
because all who know it may become
sharers of the advantages to be thence de-
rived. But it is idle to dwell on the absurdity
of proposing to merchants, to produce their
correspondence to rivals in trade. If it be
proposed to give extracts of letters, what
lender would be satisfied with the fairness
of the extract without seeing the origi
nal? And if it be proposed to accompany
the bill of lading with a letter adapted for
shew, that would be a circuitous proceed-"
ing for an end which, under the present
act, may be much more simply attained.

It follows, of course, from the foregoing reasoning, that the same necessity for secrecy which precludes the factor from shewing his principal's letter of advice, will generally render it expedient for the principal to conceal his own name, and to let the factor appear to the world as owner. The very name of merchants of high reputation is enough to induce others to follow their course implicitly.

owner of property conceals himself, "whoever can prove a good title under "the person whom the concealed owner " permits to hold it, should retain that property against the owner.”

And upon this principle it is, according to Lord Liverpool, that the present act has passed the legislature.

But though the act gives validity to the pledging, it enables the principal to decide whether he intends his factor to have the power of pledging or not, and if not, to prevent it, by notice in the bill of lading, that his consignee is only factor.

And it is this circumstance which essentially distinguishes the case of a factor who pledges goods on the faith of a bill of lading from that of a tenant who pawns the furniture of a ready-furnished lodging, or the swindler who pawns the coach he has hired. The principal may always prevent the factor from pledging, by stating in the bill of lading that the goods are consigned to him as factor, and if he omit to do this, he in effect assists in enabling the factor to deceive the money-lender; the landlord or the letter of coaches have no such means of apprizing the whole world, that the parties who have hired their goods are without authority to pledge, and it is not easy to mark either the furniture or the coach with the owner's name. Mr. Scarlett, however, by a train of rea,

With regard to the argument that the money-lender is not under any necessity to lend his money, but that the foreign merchant is compelled, in order to carry on his trade, to employ a factor,-we trust we shall not be deemed presumptuous if we say that it does not deserve an answer. Why does the money-lender advance his money? to make a profit on it. Why does the foreign merchant consign his goods to the British factor? to make a profit on them. The money-lender might invest his money in other ways;-yesbut to less advantage, or he would not advance it to the consignee. The foreign merchant might sell his goods where they are produced;-yes-but to less advan-soning which seems to imply but little actage, or he would not consign them to the factor. There is evidently no more compulsion in the one transaction than in the other.

quaintance with the principles of jurisprudence, has contended that if the pledgee of goods who has advanced money to a factor, under the faith of a bill of lading,

46

The

be entitled to hold those goods against the | writing? or why should naked possession
owner till his advance be repaid, so ought confer a power which convention and law
the pawnbroker who has advanced money
upon a gentleman's plate pawned by his
servant, or upon a landlord's furniture
pawned by his tenant. His argument is,
that it would be "a solecism in reasoning,
"to infer a greater right and power in the
"holder of the mere order or authority to
"receive the possession, than in the actual
possessor. To say that the custody of
"the various documents, which entitled the
"holder of them to receive possession of
"merchandise, should be conclusive evi-
dence of his right to transfer the pro-
"perty, but that the actual possession of
"the merchandise itself, which was the
"result and consequence of these docu-
ments, and in effect the very consum-
"mation of their object, should confer no
"such right, was a manifest absurdity.
"It seemed, therefore, that the necessary
consequence of this law, was to revive
"the only rule of property in the first
stages of society, namely, possession*."
Now, where there is any law of pro-
perty, the events must be specified which
are to invest a party with the rights of
ownership. Savages may choose occu-
pancy, but slight experience shews the
inconvenience of fixing on that. The cus-
tom of merchants has, in case of a transfer
of a cargo from a foreign to an English
merchant, fixed on the bill of lading,
whereby the foreign owner orders the
goods to be delivered to the English mer-
chant. The present act has in some de
gree given validity to this custom, and it
is difficult to imagine any event more pro-
per for the purpose; it is of a known for-
mality, is executed under circumstances
of deliberation, and is capable of easy and
certain proof.

have said shall only be conferred by the
bill of lading? By convention and law the
bill of lading now constitutes as clear a
title to goods, that is, a right to exercise
dominion over them, as a lease and release
does to exercise dominion over land. Why
is it more of a solecism in the one case
than in the other, that the bare possessor
cannot exercise such dominion?
servant who pawns his master's plate
brings no attestation of title, and the
pawnbroker who advances him money
stands in the same condition as a mort-
gagee, who, without requiring abstracts of
title, should incautiously advance money
on land, upon a conveyance in fee by
a mere tenant for years. It is impos-
sible, therefore, without subverting all our
notions of title, to affirm that the bare pos-
sessor of goods stands, or ought to stand,
in the same situation with respect to
dominion over them, as he who brings
written evidence, indicating a transfer to
himself. It is only where money is ad-
vanced upon the faith of a bill of lading,
without notice of the existence of any
owner but the person named in the bill,
that the new act recognizes the validity of
the pledge; and it does not follow that
because the law recognizes a transfer of
goods, made by a person who produces
some written evidence of title, it should
recognize a transfer made by a person
who has no such evidence to produce.

It has always been found in jurisprudence, that the possession of writings indicating a transfer of property, is the fittest event to invest a party with the right of ownership. Mr. Scarlett does not esteem it any solecism, that the party who possesses a parchment conveyance, by lease and release, of Abbinger Farm, should exercise a greater dominion over that farm, than the tenant who is in actual occupation of it. Why then should not the possessor of a bill of lading exercise a greater dominion over the goods to which it refers, than the party who has the bare possession unaccompanied with any

* Ante, p. 484.

Combination and Combination Laws. IT was our intention to have entered at large into this important topic; but we have been induced to suspend our undertaking for the present; partly by reason of the dissolution of the various combinations which have agitated the country during the last twelvemonths, and still more from the necessity we were under of trenching upon the space set apart for the consideration of this subject for the purpose of fully investigating the state of the law with respect to joint stock companies; a subject which is likely to excite considerable discussion in the ensuing session of Parliament. We must, therefore, confine ourselves to a mere outline of what we proposed to have written on the question of the Combination Laws.

The mischief of laws prohibiting combinations of workmen, is, not that they can, to any material extent, produce an

effect upon wages, but that they give rise | a time, a few persons from the otherwise to a false and dangerous opinion, both universal depression. among masters and men, that they have such an operation.

The rate of wages must, in the long run, depend on the relation between the capital of a country and its population. The whole capital of the country, with the exception of what is locked up in tools, buildings, unwrought materials, and unsold goods, constitutes the fund for the maintenance of labour. The interest of the capitalists will always insure the distribution of this whole sum among the labourers: otherwise a portion of their capitals would be lying idle.

Now, it is clearly impossible that the labourers should ever get more than the whole; therefore, if a general combination could raise wages all over the country, the capitalist could not continue to employ the whole of the labourers; they would employ a part at increased wages, and the remainder must starve, or be maintained by their comrades.

Even by a sacrifice of their property, the capitalists could not maintain the same number of labourers as before, at higher wages. They do not receive their profits till they have sold their goods. They cannot sell them till they have made them; and it is for the very purpose of making them that they want labourers. They cannot hire labourers with that which they themselves do not receive, and till the production has been completed by the agency of those labourers.

As a general proposition, however, it seems to follow, from what has been said above, that unless the capital of a country increase faster than the population, wages cannot rise; and if the population increase faster than the capital, wages must fall. Suppose the capitalists of a given district to have been able, at the ordinary rate of profits, to employ, in 1800, one hundred workmen at 3s. a-day, or at any rate of wages yielding them something more than a bare subsistence :-Suppose the capital, in 1820, to have increased one-half:-if at that time the number of the workmen shall only have increased to 150, the demand for their services among the capitalists remaining the same in proportion, the rate of wages will remain the same: but suppose the number of workmen to have reached 200, the additional 50 must either starve, for want of employment, or obtain it by offering to work at a lower rate. If they obtain it at such, lower rate, those who before obtained the higher rate must go out of employment or submit to receive the lower rate; for the capitalists, who, by the supposition, were gaining no more than the ordinary profits of stock, cannot afford to distribute among the 200, in the shape of wages, more than they distributed among the 150. If by law, or illegal violence, they are compelled to pay the 200 at the same rate that they paid the 150, they will cease to obtain the ordinary profits of stock; some of them will withdraw their capital to districts or occupations in which they can obtain the ordinary profits; and the capital in the disturbed district being reduced while the number of workmen remains the same, they must, in order to retain in the district what capital yet remains, subunit to a still greater reduction of wages.

In a particular trade, indeed, it may be in the power of the workmen, by preventing other workmen from entering the trade in more than a certain number, to keep their wages above the average rate; their masters being of course indemnified in the price of the goods, which price, if the goods be of necessary consumption, they may succeed in raising for a short time. On the other hand, if, when the numBut it is evident that any such advantage, ber of workmen had increased only oneto be gained by any particular class of half, the capital of the district had been workmen, must be gained at the expense suddenly doubled; or if, when the capital of the rest. If they attract to themselves had increased one-half, the number of a larger portion of the capital of the workmen had by any accident been recountry, there must remain a smaller por- duced one-half, some individual capitalist tion for the workmen in other trades. This, would be tempted to offer an increased however, is no evil; because the increase rate of wages in order to keep his capital of population would soon have reduced employed, though perhaps at a reduced wages in those other trades to their lowest rate of profit; and the other capitalists level; so that these partial combinations, must follow his example or lose their if they can be maintained without vio-workmen, and with them all return for lence, have at least the effect of saving, for their capital.

"We will now show to how small an ex- we should admit the fact to be so in a few tent, and for how short a time, combina- instances, and for short periods of time, it tions can affect wages in particular trades. seems impossible that it should be so to Suppose the journeymen tailors of a any great extent, or for any considerable given district succeed in compelling the portion of time. If the masters, in such masters to submit to an advance of wages trades, could for any length of time deincompatible with the ordinary profits of press wages below the market rate-below stock there is nothing in such a circum- the proportion paid in other trades-they stance which can tend to increase the de- would obtain a greater return for their mand for clothes; and if the masters raise capital than the capitalists enjoyed in other the price of the article, the demand must trades: this could not long be kept a diminish, because fewer persons will be secret, and when known, it would attract able to give the higher price than were capital from those other trades to the trades able to give the lower. The advance that yielded the greater return; that is. of wages, therefore, must be deducted the trades in which the masters had been from the master's profits; and if by this able to depress wages below the market means their profits be reduced below those rate. But as soon as fresh capital should of other trades, a portion of the capital em- be determined to those trades, the compeployed in the tailors' trade will be transfer- tition between the new capitalists and the red gradually to other trades; but though old would infallibly raise the rate of wages. the capital employed in the tailors' trade will The number of workmen would remain be thus diminished, the number of journey- the same; the capital employed in the men will remain the same, and in order that trade would be suddenly increased; and the capital which yet remains should pro- if capital increase faster than population duce the same profit as capital invested in (in which case alone it is possible for wages other trades, it will be necessary for the to rise), no combination of masters can journeymen to work at reduced wages, or ever hold together. The temptation to to starve for want of employment. employ the increased capital to the best advantage, by competing for workmen, is too strong to be resisted.

In the case above supposed, the profits of the tailors' trade are assumed to have been, at first, upon a level with the profits in other trades. If they were greater, an additional quantity of capital would be determined to the tailors' trade, and that circumstance of itself would, for the reasons we have before stated, raise the rate of wages without a combination.

As for the masters-if population increase faster than capital, there can be no necessity for them to combine to lower wages; in such case, for the reasons we have before stated, wages will fall but too soon, to the lowest point to which they can fall-that which will suffice for the bare existence of the workman.

It has been said, indeed, that where the masters in a trade are few, and the combination among them is perfect, they may, by the aid of the law, repress combination among the workmen, and by dealing with them singly, reduce wages to that rate which will barely support existence, at an earlier period than the state of the population would have produced the same effect, and that they may continue wages at this rate with greater certainty, and for a greater length of time, than if the law had not assisted them. This has been asserted in particular of the type-founders, the saddlers, and the cotton-weavers. Though

Laws, therefore, which prohibit combinations, in the apprehension that such combinations would be able to raise wages above the market price, are, to that end, for the most part, nngatory. But as the existence of such laws leads both masters and men to suppose that wages may be raised by means of combination, they have in truth a very pernicious operation: 1st. By producing and supporting an erroneous opinion, which is the more dangerous, as it leads inquiry astray from the real causes which regulate the rate of wages; 2dly, By occasioning discontent, from an appearance of partiality to the masters; and 3dly, By enfeebling the sanction of law in general.

It seems expedient, therefore, that those enactments should be repealed which interfere with any peaceable mode in which workmen may think fit to conduct themselves, with a view to contracts regarding wages; but it is equally expedient that, like all other men in society, workmen should be subject to the control of the law whenever they attempt to compass their ends by violence or intimidation; and the more so since we have already shown that a temporary success, obtained by forcible means, must, in the long run, defeat the

purpose of those who have recourse to them.

professional judge established in such district; who should decide in public, and from whose decision there might be an ap

Here, then, we have a broad line of distinction: so long as the workmen are mis-peal to the quarter sessions. Such an inguided enough to suppose that they can dividual would not be necessarily conbetter their situation by refusing to work, nected to any extent with the master manuand by combining for the support of those facturers, and he would incur a responsiwho thus quit their employment; let no bility, and have a reputation for imparinterruption be offered; the evil is one tiality to maintain, which is not essential which must cure itself in a short time, and to the well-being of a master manufacthe parties combining must soon discover turer among his fellow-masters. that it is neither the law nor the power of their employers which is the cause of their distress. But it is obviously as much to the advantage of the labourer, that he should be secured in the freest exercise of his skill and labour, as it is to that of the capitalist, that he should be secured in the possession and employment of his capital. Neither of them, however, can be said to enjoy this security if they are compelled, by intimidation, to pursue a course which they would not otherwise have pursued. Wherever, therefore, they are exposed to violence or menace, to obstruction, or any kind of molestation, the civil arm ought immediately to be interposed for their protection.

Such being the state of the question, and such the difficulties of legislating on the most important branch of it, Mr. Hume,in the session of 1824, introduced an act*, which repealed all acts prohibiting combinations of workmen for the purpose of regulating their contracts respecting wages; or for inducing workmen to depart from a service in which they were engaged, to quit or return work before it was finished,—to refuse to enter into employment, or to regulate the mode of carrying on business; and which declared that persons combining for these purposes should not be liable to punishment.

The same exception was extended to masters who should combine to depress wages or to regulate the mode of carrying on business.

At this stage of the question arises the first difficulty-to define where combination ends and where molestation begins. But it was enacted, " that if any person But a far greater difficulty, and one which" by violence to person or property, by seems almost insuperable, is to find a tri-" threats or by intimidation, should wilbunal in which such offences can be fairly" fully and maliciously force" any workand efficiently tried. men to leave his service, quit or spoil his The ordinary machinery of circuit or work, or destroy machinery, or use viosession, would be much too slow and ex-lence, threats, or intimidation towards anopensive for the suppression of mischief, ther for not joining in combinations, or which calls for immediate interference. should by such means force any master The master manufacturers who usually manufacturer to alter his mode of carrying compose the magistracy in the manufac- on business, the person so offending should turing districts, and persons who move be liable to imprisonment, not exceeding in the same circle, have evidently a strong two months, with or without hard labour interest to decide in favour of the master. as the case might require. It may be urged indeed, that if their proceedings were public, they would act under the check of the press and public opinion; but in general, disputes between a master and his workman on a question of wages, are not subjects which the press is accustomed to handle, because they are not subjects in which the public takes any interest.

If a local jury were summoned periodically for the settling of such disputes, such jury would consist either of masters or of workmen, and in either case would have a strong bias one way.

Perhaps the least objectionable tribunat for such purposes, would be a single

The same punishment was prescribed for combining to effect such purposes by such means.

One or two justices of the peace (not being masters in any trade or manufacture, nor the fathers nor sons of masters) were to have jurisdiction to inquire into such offences and to convict on the oath of two witnesses.

This act passed in June 1824.

Shortly after the passing of the act, combinations, before in existence, were acted upon with new vigour in almost every district and every trade throughout the kingdom; not accompanied with that

5 Geo. IV. c. 95.