fficulty when it is recognized as the
fundamental test in cases of combination, _i.e._, conspiracy. And for
the antiquity of this our law we need but mention a few cases: Rex _v.
_ Crispe, cited in the Great Case of Monopolies (7 State Trials 513):"
Here was lately an agreement between copperas makers and copperas
merchants for the buying of _all_ copperas, and that these copperas
makers shall for three years make at so much a ton and restraining
them from selling to others"--_held_ a criminal conspiracy; of the
tailors of Ipswich (6 Coke 103) where a company of tailors made a
by-law to exclude non-members from exercising their trade; and the
Lilleshall case (see p. 71 above).

Thus in matters of _capital_: is the _first_ intent, the _immediate_
object, to increase profits, to acquire or enjoy property, to enlarge
one's business,[1] or is the _first_ intention to destroy a competitor
or create a monopoly? So in _labor_ combinations: is the _first_
object to get better terms for the persons combining, an increase of
wages or a reduction of hours, improved conditions in factories and
shops, etc., etc., or is the _first_ thing they are seeking to do to
injure a third person, not concerned in the dispute, or to control
the liberty and constitutional right of the employer himself? If the
latter, it is "oppression" within the meaning of the early common law,
and should be so held to-day.

[Footnote 1: What Mr. Cooke calls, in his preface, "the natural
incident or outgrowth of some lawful relation." _Combination,
Monopolies and Labor Unions_, p. iv.]

And not only is this great domain of English law noteworthy because it
is so subtle as to grasp the effect of a combination other than that
of the individual acts, and the intent of that combination other than
its effect, but it is perhaps the only great realm of law which really
attempts to carry out the principle of the Golden Rule. In all other
matters, if an act be lawful, it remains lawful, although done with
the intent of injuring another; it does not usually even give rise to
an action for damages; but the great principle of the English law
of conspiracy was crystallized two hundred years ago in the classic
phrase of Hawkins, in his "Pleas of the Crown," vol. II, p. 121:
"There is no doubt that a combination made to the prejudice of a third
person is highly criminal at the common law."[1] The usual definition
of conspiracy, that is, of unlawful combination, is a combina