The times. [volume] (Richmond, Va.) 1890-1903, 1892-01-31
TRADE COMBIN%Iio''
Tho British House Of Lords on ihas sub'
ject.

ject.
saturday Review.1
After nearly two years and hait tho de-
cision of the court Of appeals in the Mogui
Steamship Company's case was unanimously
affirmed on Friday last week by the House OK
| Lords. The delay both IN hearing ana IN oe-
cid;nc the anpeal il 10 be regretted on many
| grounds of practical convenience; out IL tho
postponement of Judgment over tho long va
cation was in any way due TO douDts on the
! part of one or more members OF inc trlpunai
which wero ultimately removed IL was no'
| too heavy price 70 pay for the author-
| ity Of tho unanimous Iudgmenb III d "a. .1.
OF such importance. IL 10 worth notlce tAhs
the House of Lords. as constituted on TINS oc-
CASTOR. represented the learning OF both COM
| mon law and equity and the judicial expert
I ence OF every part Of the United hlnSuou;
| The facts on which the decision proceede1
are capable. as the Lord Chancellor sai1 l, On
| being reduced TO pretty simple form- Inc
| defendants were q number Of ship owners;
| who In 1885 were associated in conference
! for the purpose OF controlling the tea TRACE
with certain Chinese ports and keeping up
freights. For thu purpose they offered spe-
cai low rates to local shippers IN Oruer 10
undersell the rival traders, and. moreover.
offered special rebate of per cent. TO snip
pers and 90 agents who would deal exclu-
sively with vessels belonging 70 the con
ference on the terms that the rebate for The
whole years shipping was 10 DO forfeIted Oy
any breach OF this condition. Inc N Zui
Steamship Company, rival trader on -sluo
tho conference" complained OF TINS hcNo1
as O wrongful Interference with the general
freedom of trade. and claimed as damages
the difference between its actual earnings IN
the season and the freights II would nave
earned but tor the exclusive combination
No evidence of malice IN the sense OF
special desire to injure the business OF the
Mogul Company was or could Re gwen, IN
the contrary. nothing would have pleased the
conference" better than that their rivals
should find elsewhere q more profitable occu-
patton than competing with them IN that par
ticular trade.
Now. the object Of ali trade competition
is 10 get as much business and prom "a one
can. and in that sense 20 Withdraw business
and profits from rivals. If making proht at
another q pense by means notin themselves
unlawful be unlawful and malicious" then
is ali competition unlawful And such IS the
Socialist opinion; but when applied TO exist
ING laws intended for the government OF so
ciety as it exists, the conclusi q. LORD HAS
bury truly said, i o reductio al absurdum.
Again. doing business at a tempo
rary loss in order 10 undersel rivals
is one of the commOnest forms OF
competition, so far from being new and
unusual device. There was IN this case 20
violence, no intimidation. no procuring OF
cOunselng OF any breach Of contract IL any
such element had been present. II would have
been q different matter SO Lord Justice
Bowen was careful TO mark in the court OF
appeals and the Chancellor III the House Oh
Lords. And Lord Harmon said stu more
pointedly that "a different case would have
arisen if the evidence had shown that the OBJ
Jet of the defendants was malicious one
namely. TO injure the plaintiffs, whether they,
the defendants. should be benefited or not.
But as il was there was nothing TO show that
either the end contemplated by the confer
encen or the means used TO obtain that end
were contrary 10 law. 1t Is quite true
that as between the members OF
the conference" the whole scheme
was almost certainly in restraint
Of trade" so that any of the associated firms
could have withdrawn from it at Will without
being liable 70 any action for breach OF con-
tract. But this by no means involves, as
supposed by Lord Eshers dissenting Judg-
ment il the court of appeals the consequence
of agreement being either punishable Of
tense OK d civil wrong as against third persons
who lose money by its performance. On
the whole. then. whatever may be thought OF
the conference scheme rs matter or
commercial courtesy there Is nothing IN IL
amounting 20 legal cause Tor action. Ana
since there Is nothing unlawful In either END
or means and the nature of the act COM
planned of was not determined by the num-
Der of persons doing it. the fact of the thing
being done by several parties and not by one
made no difference.
Lord Bramwel went a little farther on
economical ground than his colleagues. lie
pOinted out that the public interest was lar
from being clearly all on one side. The con-
suner. at all events gains by the lowering OF
freighis, and if the defendants could. as they
alleged, keep up a continuous service through
the year only by getting practicai inonopoly
of the trade for tea seasons 1t would seem
that more good than harm ensued to trade IN
the long run.
We may add that the conspiracy argument
was a rather weak one in the case. For there
was nothing in the nature of the confer
ence" plan 10 prevent d similar plan from be-
ing carried out, under conceivable condi-
lions. by some one great company OF lndi-
vidual capitalist with equal effect. 1t IS most
fortunate that in this case the question was
purely between capitalists so that 1t was not
possible TO import class sentiments Of any
kind into the argument or decision.
Let us try to sum up the results. What Is
actually decided IS that there IS nothing
unlawful in a trader, or several traders acting
in concert giving preferential advantages 10
persons who will deal with them and not
with a rival. But the decision. taken with
the reasons given afirms the wider principle
that combination 10 do something not I'M
lawful by means not unlawful cannot be
made INTO an Onelsc or WIOuI Dy JUDICIAL
surmise as the results may.in some way be
mischevous 10 the public. In other words,
what may be called the extreme high view of
the oaense Of conspiracy at common law Is
now finally untenable. if it was not already
80. This. we think, Is both good law and
good sense.
Ii will be observed that the decision gives
no cOuntenance whatever to the employment
of unlawful means for the attainment OF even
the most lawful ends Neither does 1t effect
the existence and proof Of Ofenses, which are
such that their essence 80 10 speak. Is multi
tude of persons. riot and unlawful assembly
for example.
Neither does it legalize interference with
another mans business without any cores
pOnding benefit 10 ones own. Neither does
it proven: the fact OF concerted action from
being often material. not as constituting IN it
self q species OF O1ense or wrong. but as EVIL
dence of the intention or the persons acting,
and 80 OF the character OF the act
Lord Harmon expressly pointed out that this
might be important in determining whether
selfish but legitimate gain TO ones self or gra-
tultOus and illegitimate harm TO another were
the real object. There are some forms Of
injury which can only be ELECTED by the
combination of many persons. Thus. II sew
eral persons agree not to deal at all with
peculiar individual. as this could not, under
ordinary circumstances. benefit tho persons
so agreeing, II might well lead 10 the conclu-
sion that their real object was g. iniure
ha individual lovcoftara will oartofpf,,