A Policy of Free Exchange: An Argument Against Socialism and Socialistic Legislation

Edited by: Mackay, Thomas
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Thomas Mackay, ed.
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New York: D. Appleton and Co.
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Collected essays, various authors.
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The Law of Trade Combinations

by the Hon. Alfred Lyttelton


THE proximity into which men are now brought, and the almost bewildering ease with which they can communicate with one another, have given a strong impulse in business to the principle of combination. Combination is the motto of modern commerce. More and more is it apparent that industry will in the future be mainly in the hands of associated bodies. On the one side vast companies and amalgamations of companies quarter out the field in which capital circulates; on the other Trade Unions numbering members in thousands and tens of thousands organize and regulate labour. Already companies have practically absorbed the great operations of Land Transport and Fire and Life Insurance; soon Banking will pass also under their sway. The Salt Union, the United Alkali Company, and the proposed Coal Trust mark the advance in this country alone of ideas of even vaster enterprise. Yet outside the serried ranks of these great associations there yet exist a large though perhaps a diminishing number of individual capitalists and a still larger and probably not diminishing number of individual workmen. Combined capital, guided by salaried managers, measures its long purse and its long arms against the individual proprietor operating in a narrower area, but with more concentrated energy. Combined labour, strong in the discipline of the trade union, confronts the single craftsman, and brings irresistible pressure to bear on him, if he ventures to resist its authority. The interests of labour and capital, to those most nearly concerned, appear only too often to be divergent and furnish ample material for misunderstanding. It will be at once seen that there are here the conditions of conflict. This conflict has none of the decorative aspects of war and is waged for no trophy of chivalry. The prizes striven for are common material things, but the struggle for commercial supremacy is a bitter one, and it is easy for the combatants to overstep the limits of order and the boundaries of the peace. To keep the peace is obviously the primary function of law, and law has thus been always concerned in restraining industrial combatants from any semblance of physical violence. But English law has not confined itself to this modest task. Combinations, especially combinations of labour, inspired such terror among our forefathers that, from the middle of the fourteenth century to the reign of George IV, we find statute after statute prescribing penalties upon all alliances and covines of workmen to alter wages, while the laws against forestalling, regrating, engrossing, and monopolies, coupled with the developed law of conspiracy, confined combinations of capitalists within rigid limits*43. These statutes which are out of harmony with modern ideas were deemed by their authors to be in accordance with sound principle, and with the well-known doctrine of English Common Law, that every person has individually and the public collectively a right to require that trade shall be kept free from unreasonable obstruction. But it is obvious that the word 'unreasonable' gives an elasticity to this legal doctrine of which the changing opinion of successive generations has taken full advantage, and indeed a full description of its fortunes would illustrate a very curious and interesting chapter in the history of economic opinion in this country. For it is natural that legal theories as to restraint of trade should fare very differently at the hands of mediaeval lawyers keenly alive to the necessity of securing supply in times when 'stores were small, transit difficult and famine near if supply were delayed,' and at those of a modern judge born in the atmosphere of free trade and steeped from his youth up in the doctrines of the Ricardian economists. The scope of this paper does not permit any historical discussion of this topic. Some recent decisions of the Courts have, however, defined the present law affecting trade combinations in certain difficult and obscure regions, and it may be of use, in view of the great importance of the subject, to ascertain if possible the positions definitely established by their authority. The decisions relate both to the Criminal and the Civil Law, to Statute and to Common Law. In this paper I propose to discuss in the first place the Criminal and then the Civil Law in the light of those decisions. The Criminal Law will fall conveniently into two divisions: (a) The Conspiracy and Protection of Property Act, 1875; (b) The Common Law Crime of Conspiracy.

I. (a) The Conspiracy and Protection of Property Act, 1875.


This Act of Parliament, which hereafter will be referred to as the Statute of 1875, exempts from the operation of the Common Law of Conspiracy all agreements to do any act in contemplation or furtherance of trade disputes between combined employers or combined workmen, which, if committed by individuals, would not be indictable under the common law. So far the Statute gives special privileges to trade disputants which are not enjoyed by any other class;—on the other hand, as it were to redress the balance, it imposes special burdens upon them by making criminal certain acts which may be committed by any citizen but which are in fact peculiarly characteristic of trade combinations. It will be observed that while all subjects of the Queen are affected by the new penalties, trade disputants alone are affected by the new exemptions. I append the actual words of the two sections whose effect I have summarized above.


'3. An agreement or combination by two or more persons to do or procure to be done any act in contemplation or furtherance of a trade dispute between employers and workmen shall not be indictable as a conspiracy if such act committed by one person would not be punishable as a crime.


'Nothing in this section shall exempt from punishment any persons guilty of a conspiracy for which a punishment is awarded by any Act of Parliament.


'Nothing in this section shall affect the law relating to riot, unlawful assembly, breach of the peace, or sedition, or any offence against the State or the Sovereign.


'A crime for the purposes of this section means an offence punishable on indictment, or an offence which is punishable on summary conviction, and for the commission of which the offender is liable under the statute making the offence punishable to be imprisoned either absolutely or at the discretion of the court as an alternative for some other punishment.'


'7. Every person who, with a view to compel any other person to abstain from doing or to do any act which such other person has a legal right to do or abstain from doing, wrongfully and without legal authority,—

'(1) Uses violence to or intimidates such other person or his wife or children, or injures his property; or,
'(2) Persistently follows such other person about from place to place; or,
'(3) Hides any tools, clothes, or other property owned or used by such other person, or deprives him of or hinders him in the use thereof; or,
'(4) Watches or besets the house or other place where such other person resides, or works, or carries on business, or happens to be, or the approach to such house or place; or,
'(5) Follows such other person with two or more other persons in a disorderly manner in or through any street or road,

shall, on conviction thereof by a court of summary jurisdiction, or on indictment as hereinafter mentioned, be liable either to pay a penalty not exceeding twenty pounds, or to be imprisoned for a term not exceeding three months, with or without hard labour.


'Attending at or near the house or place where a person resides, or works, or carries on business, or happens to be, or the approach to such house or place, in order merely to obtain or communicate information, shall not be deemed a watching or besetting within the meaning of this section.'


Section 7, it will be seen, enumerates the various methods of coercion which from time to time have been employed by trade organizations, and may perhaps be said to comprehend the totality of such methods by the word 'intimidate.' It has been objected to this word that it is too vague, and if it be true, as many wise men think, that the criminal law should in all cases be rigidly precise in its definitions, it is a charge which we think is made out; but there is more perhaps to be said in favour of a criminal statute that leaves something to the intelligence of the tribunal which administers its decrees than would at first be supposed. When for instance the word 'intimidate' was limited as in a previous statute to actions which would justify a magistrate in binding over the intimidator to keep the peace, it was only human nature for men to ascertain precisely those actions which would cause the maximum of fear, without giving a magistrate such a jurisdiction.


One of the most effectual penal statutes of modern times is the Corrupt Practices Act, 1883, which imposes fine and imprisonment on persons doing certain acts 'in and about the conduct and management of the election.' Now there is no definition in the statute of the time when an election commences, and during ten years no judge has laid down with precision this fatal hour. The result is that numerous offences subject to severe penalty are left vague. But the objectors to this vagueness are not purists in legal codification but old election hacks, who if the election period had been rigidly ascertained would only have ceased corrupt expenditure at midnight of the day before.


A long stride in the clear definition of the word 'intimidation' has now been made, so that the vice of vagueness, if it be a vice, is largely mitigated. As early as 1880 Mr. Justice Cave ruled that to constitute intimidation within the meaning of the section under consideration personal violence must be threatened; and in 1891 the scope of the section, and in particular the meaning of the word 'intimidation,' were considered and determined by five judges in two cases the importance of which justify a somewhat detailed reference.



In this case, in Dec. 1890, a workman named Gibson, a member of a trade union called the National Society of Engineers, was employed as a fitter by Messrs. Palmer & Co. shipbuilders in Northumberland. Another workman, by name Lawson, a shop delegate and a member of another trade union, the Amalgamated Society of Engineers, was employed in a like capacity at Messrs. Palmers. On Dec. 3 the Amalgamated Society of Engineers met and resolved not to work at Messrs. Palmer's after Dec. 6 unless Gibson joined their union. Lawson communicated this resolution to Messrs. Palmer's foreman, who repeated it to Gibson. Gibson there-upon refused to leave his trade union or to join the other, and in consequence, and in order to avoid the threatened strike, Messrs. Palmer's foreman dismissed Gibson from his employment. No violence or threats of violence either to person or to property were used to Gibson, but he swore that he was afraid, in consequence of what Lawson said, that he would lose his work and get no more at any place where the Amalgamated Society predominated numerically over his own society.


Lawson was afterwards prosecuted for having wrongfully and without legal authority intimidated Gibson, under section 7, sub-section (1) of the Statute of 1875. On these facts it was held by a court consisting of five judges that the action of Lawson implied no threat whatever of personal violence, and was not 'intimidation.' It was also observed that the Statute of 1875 expressly legalized strikes, and that a conspiracy, by means of a strike thus legalized, to coerce another's will, notwithstanding certain decisions of Lord Bramwell and Lord Esher, could not be indictable.


Regarding this decision from a purely legal point of view, it is to be observed that in the repealed Act of 1871, which dealt with the same subject as the Statute of 1875, the word 'intimidation' was limited to such intimidation as would justify a magistrate in binding over the intimidator to keep the peace towards the person intimidated. In the Statute of 1875 Parliament enacted the seventh section containing the word 'intimidation' without any such limitation. It has been a matter of surprise to many lawyers that the word 'intimidation' was construed in face of this contrast as if the limitation of the Act of 1871 were still in force. Two reasons only are given in the report for this decision: (1) The changing temper of the times on the subject; (2) That the Statute of 1875 was preceded by a Royal Commission which recommended a relaxation of the law in favour of trade unions. As to (1), it is submitted that though it is quite sound to permit 'the changing opinion of the times' to modify a common law rule, for such a rule is founded on custom, it is quite unsound to extend such reasoning to a statute. For a statute is to be construed according to the intention of those who passed it, and to construe it, not according to that intention as gathered from its tenor, but according to the fluctuating opinions of its readers, seems obviously to introduce confusion and uncertainty.


As to (2), it is not legally permissible to read or even refer in argument to the debates preceding the passage of an Act, still less to the report of a Royal Commission on which it is supposed to be based. It is moreover inaccurate to say that the Royal Commissioners recommended a relaxation of the law as regards intimidation, on the contrary, they advised that no relaxation should here be made.



In this case the Secretaries of certain trade unions had been convicted before the Recorder of Plymouth of wrongful intimidation under the section above referred to. The Recorder stated the following case for the consideration of the Court of Queen's Bench before giving effect to the conviction.


The appellant and two other secretaries of trade unions, in order to prevent the respondent employing non-union men, informed him that if he did not cease to do so, they would call off from their employment by him all the members of their respective unions. After a meeting of the unions, at which it was resolved that this course should be adopted, the appellant and the other secretaries, in the presence of the respondent, whom they asked to attend, made the following statement to the respondent's workmen and others who were assembled:—'Inasmuch as Mr. T. (i.e. the respondent) still insists on employing non-union men, we, your officials, call upon all union men to leave their work. Use no violence, use no immoderate language, but quietly cease to work, and go home.' The union men in consequence ceased to work.


Held, that there was no evidence of intimidation by the appellant within the meaning of the section, and that the conviction must be quashed.


The reasons for this decision may be presumed to be the same as those given in the first case, as no others germane to the subject are given in the report.


Whatever legal criticism may be suggested on the reasons given for these decisions, the law, as laid down in them, has at least the merit of being clear, and I venture to predict the result that no prosecutions will be undertaken under section 7, sub-section (1) of the Statute of 1875 unless proof can be given that physical force has been used or threatened. The other offences aimed at by the second, third, fourth, and fifth sub-sections are defined with great clearness, and require no comment here.


It seems then that if in such cases as the above, the only resort to the criminal law against trade combinations left open to employers and workmen be the Statute of 1875, the conclusion follows that subjects of the Queen, owing allegiance only to the law of the land, can, against their will, be brought under the dominion of a power which they detest, and to which in a free country they owe no obedience, and that too, in matters so vital to them, as on the one hand the employment of their capital, and the hiring of their workmen, and on the other the expenditure of their income, the hours, methods, nay even the disposal of their labour. For it is idle to say that a power is not absolute which, though bound to abstain from physical violence, is yet at liberty to bring upon a fellow-subject industrial ruin. Such a conclusion is startling, for every one knows that the remedies of the civil law, for workmen at any rate, against trade unions are practically beyond their means or opportunities.

(b) The common law crime of conspiracy.


It has been too readily assumed, probably owing to some dicta in the cases above mentioned which were unnecessary for their decision, that outside the provisions of the Statute of 1875; the criminal law is powerless against combinations of capitalists and workmen. I propose to consider two doctrines of the common law relating to conspiracy which appear to be available against such combinations. There is authority that the following agreements are criminal.

1. Agreements between more persons than one to do acts which are injurious to the public, or as Sir James Stephen puts it, 'Agreements between more persons than one to carry out purposes which the judges regarded as injurious to the public.'
2. Agreements where, with malicious design to do an injury, the purpose is to effect a wrong though not such a wrong as when perpetrated by a single individual would amount to an offence under the criminal law.


1. The statement of this rule appears and is extraordinarily vague. Convictions have in the past been obtained against persons conspiring to impoverish the farmers of excise, so as to make them incapable of rendering the king his revenue, against combinations of officers to throw up their commissions in times of danger, and against persons combining to disturb the price of the funds by false rumours. But the principle has never been applied, in England at any rate, against rings of capitalists or unions of workmen, and though it is possible to conceive cases in which the national importance of the industries affected might justify its use, no judge would venture to enforce it in cases such as those we have considered.


2. The second principle has the authority of the Final Report of the Royal Commission on the Labour Laws in 1875 (a Commission which contained, among others, Lord Chief Justice Cockburn, Sir M. Smith, Mr. Russell Gurney, Mr. Roebuck, and Mr. Thomas Hughes), has been supported by dicta of the Court of Appeal, and its reasoning adopted in cases of high authority in America. If the principle be applied to the facts of the case of Gibson v. Lawson I do not think it can be doubted that in the absence of the exempting section of the Statute of 1875, Lawson and those who acted with him would have been found guilty legally of a criminal conspiracy. Their immediate intention was to induce Gibson's employers to break their contract with him. Such an intention is malicious in law, even though there be no personal ill-will. Their remote object was to force Gibson to leave his trade union and join another, i.e. to infringe his legal right to belong to any union he thought fit. Then does the third section of the Statute of 1875 exempt such a combination from the law of criminal conspiracy? That section, it will be remembered, enacts that 'An agreement or combination by two or more persons to do or procure to be done any act in contemplation or furtherance of a trade dispute between employers and workmen shall not be indictable as a conspiracy if such act committed by one person would not be indictable as a crime.' This section has been judicially declared to have expressly legalized strikes. But if it is closely scrutinized it will be found to exempt strikes from the operation of the Criminal Law of Conspiracy only when the agreements at their root are 'in furtherance or contemplation of a trade dispute between employers and workmen.' The whole history of this legislation shows that the object of Parliament in granting this exemption was to remove all fetters from Labour which might seem to cramp it unfairly in the struggle with Capital. The capitalist, it was argued, is a combination in himself. The labourer should then be free also to combine. The intention of Parliament was not to give a dominance which might easily become a tyranny either to rings of capitalists or unions of workmen, but to place workmen so far as possible on terms of equality in competition with capitalists. The exemption of section 3 accordingly only operates to make agreements otherwise criminal not criminal when they are made in the course or genuine contemplation of a trade dispute between employers and workmen. The belligerents must not be employers and employers or workmen and workmen, but employers and workmen, and there is no sanction in the statute for the notion, now widely prevalent, that a ring of capitalists can combine to ruin rival capitalists, or that a trade union can combine to ruin nonunionists, by wrongfully injuring them. The mere cover of a strike is not of itself to render not criminal all agreements attendant on its inception. It will be seen, therefore, that had Lawson and his friends, for example, been indicted for a common law conspiracy, and had their action been brought within the terms of the definition under consideration, they would not (it is submitted) have been entitled to an acquittal by virtue of section 3 of the Statute of 1875, unless the jury found as a fact that the agreement to procure the dismissal of Gibson had been in bona fide contemplation or furtherance of a trade dispute between the defendants and their employers.



As already indicated, it is not intended to discuss the civil remedies of those aggrieved by the actions of trade combinations, beyond adverting in detail to two recent decisions of the Courts in which these remedies have been elaborately discussed, and which illustrate in a very salient manner the bearing of the modern law in this connexion. The first of these cases is called The Mogul S. S. Company v. McGregor, Gow & Co. (1889), and will be hereafter referred to as 'the Mogul case.' In that case the defendants were a number of shipowners who formed themselves into a league or conference for the purpose of ultimately keeping in their own hands the control of the tea-carriage from certain Chinese ports, and for the purpose of driving the plaintiffs and other competitors from the field. In order to succeed in this object, and to discourage the plaintiffs' vessels from resorting to those ports, the defendants during the 'tea harvest' of 1885 combined to offer to the local shippers very low freights, with a view of generally reducing or 'smashing' rates, and thus rendering it unprofitable for the plaintiffs to send their ships thither. They offered, moreover, a rebate of five per cent. to all local shippers and agents who would deal exclusively with vessels belonging to the conference, and any agent who broke the condition was to forfeit the entire rebate on all shipments made on behalf of any and every one of his principals during the whole year—a forfeiture of rebate or allowance which was denominated as 'penal' by the plaintiffs' counsel. It must, however, be taken as established that the rebate was one which the defendants need never have allowed at all to their customers. It must also be taken that the defendants had no personal ill-will to the plaintiffs, nor any desire to harm them except such as was involved in the wish and intention to discourage by such measures the plaintiffs from sending rival vessels to such ports.


In a judgement, which is a monument of legal learning and literary form, Lord Justice Bowen, supported by Lord Justice Fry and afterwards by the House of Lords, Lord Esher dissenting, held that this transaction was only the 'lawful pursuit to the bitter end of a war of competition waged by the defendants in the interest of their own trade,' and that, although a damage to the plaintiffs, intentional in the sense of being necessarily consequential on the defendants' action, had been proved, the defendants had just cause or excuse for inflicting such damage in the instinct of self-advancement and self-protection which is the incentive of all trade. 'To say that a man is to trade freely but that he is to stop short at any act which is calculated to harm other tradesmen and which is designed to attract business to himself, would be a strange and impossible counsel of perfection.' The fundamental ground for this decision is that it is good for the community that competition should be unfettered and that the exercise of a trader's right to trade freely necessarily implies the right intentionally to injure other traders. To ruin a man's trade because you want to ruin him is unlawful, but to do so because you want it for yourself is in obedience to a natural and legitimate instinct.


Since the decision in the Mogul case was given, the action of certain trade unions combining to ruin a person who refused to fall into a scheme for imposing generally, throughout a trade, trade-union regulations, has been discussed in the Court of Appeal. In the case of Temperton v. Russell and others (1893), 'the defendants were members of a joint committee of three trade unions connected with the building trade in Hull. A firm of builders there having refused to obey certain rules laid down by the unions with regard to building operations, the unions sought to compel them to do so, by preventing the supply of building materials to them. In pursuance of this object, they requested the plaintiff, a master mason and builder in Hull, who supplied building materials to the firm, to cease to supply them with such materials, but the plaintiff refused to do so. Thereupon, with the object of injuring the plaintiff in his business, in order to compel him to comply with their request, the defendants induced persons who, to the knowledge of the defendants, had entered into contracts with the plaintiff for the supply of materials, to break their contracts, and not to enter into further contracts with the plaintiff, by threatening that workmen would be withdrawn from their employ. The plaintiff sustained damage in consequence of such breaches of contract and of the refusal of such persons to enter into contracts with him:—Held, That an action was maintainable by the plaintiff against the defendants for maliciously procuring such breaches of contract, and also for maliciously conspiring together to injure him by preventing persons from entering into contracts with him.'


So far as this decision relates to the maliciously procuring persons to break contracts actually entered into, it merely declares well-settled law and is altogether beyond criticism. On the other hand, so far as it relates to a conspiracy to induce persons not to enter into contracts with others in the future, the decision has no precedent, and appears to be at least questionable. For, if it be sound, it would appear that in all cases the most effective weapon, and in most cases the only weapon, of a trade union, one which has been used for many years—viz., the power to refuse the service of their members to employers, except upon stated terms—would be struck from their hands.


In the Mogul case, for the purpose of establishing a monopoly, the conference of shipowners undoubtedly used means which involved the intentional and injurious coercion of a dissentient fellow-trader. In Temperton v. Russell, for the purpose 'of improving the condition of labour' and in furtherance of a labour dispute, the trade unionists undoubtedly took certain active measures highly oppressive to the person against whom they were directed.


It would be presumptuous to suggest that there are not weighty reasons to be given in support of a judgement of the Court of Appeal, but it is obvious that these two decisions do not make the state of the law clear.


On one side, it will be argued that the cases are distinguishable; that in the Mogul case the defendants only did what any trader is entitled to do, viz., offer exceptional terms for continuous and exclusive custom, and use the power of combination, peacefully and without personal ill-will, to drive all competitors from the field. In the second case, the defendants, it might be argued, went beyond the legitimate furtherance of a trade dispute when they brought injurious pressure to bear on the affairs of one who was no party to that dispute.


On the other side it will be maintained that the two cases ought to be governed by the same rule. The trade unionist will naturally insist that the object in both cases, viz., the improvement of their own market, was identical, and that the steps taken to secure this legitimate end were in both cases the same. If coercion by combination is legitimate in one case it ought to be legitimate in the other. A combination to prevent persons entering into future contracts was held legal in one case and it ought to be held legal in the other. Why is the capitalist's combination merely an incident in a war of competition, waged in the interest of their own trade, and the trade-union combination a malicious and illegal conspiracy?


It is impossible to deny the force of this reasoning, but it would require another paper to discuss the possible developments of legal decisions or statute law whereby the uncertainty of the situation can be removed.


If these two cases are distinguishable, the exact ground of distinction will, no doubt, be made clearer in future decisions of the Courts; if, on the other hand (and to this opinion I am disposed to incline) they are not distinguishable, there can be no doubt that the balance will be righted by the strict and unquestioned impartiality of the judicial bench.


The object of this paper has been to consider the law affecting trade combinations as determined by recent decisions, and we are now in a position to sum up the result of our inquiry.


So far as the law of crimes is concerned, we have seen that Parliament, assisted by the judges, has laboured in the main since 1875 to secure absolute equality of conditions to combatants in the war between labour and capital. The opinion has been hazarded that, so long as every form of physical force is avoided, trade disputants in combination have no interference to fear and trade dissentients no protection to expect from the law of conspiracy; but that if, on the other hand, coercion is used, which, without the excuse of a war between labour and capital, would be otherwise unlawful, the power of the law may successfully be called in.


So far as the civil law is concerned it has been submitted that the principle of acknowledging every man's right to trade freely has been applied by the Courts in a sense which has accorded to combined capitalists a privilege not granted to the trade union.


Further, it has been suggested that, while more use might have been made of the criminal law for the protection of dissentients against trade unions which may act oppressively, on the other hand the power of the civil law has been unduly strained against labour combinations.


Whatever may be the justice of these conclusions, the discussion has revealed the great complexity of the subject. The law is being called on to deal with a new and very difficult set of circumstances. The power of combinations, such as we have been considering, is always very great and sometimes very oppressive. It is not too much to say that individuals are at times made subject not only to the law of the Queen, but also to the law of the Combination. The possibility of oppression and the difficulty of dealing with it are equally obvious, and it seems a dismal view of the future to say that the law can do no more than keep the ring on equal terms for the combatants in these disastrous and often ferocious contests. But we are here considering only the legal aspects of the question; whether in the future it may be thought desirable to legislate for the protection of private citizens against the tyranny of combinations, the future only can decide.


In conclusion, some hope may be gleaned from the advance of conciliatory principles. In the controversies of nations, for instance, although the law of force is still predominant, the greatest and most civilized races are beginning, timidly and fitfully, it is true, to look to arbitration. In industrial disputes, such as those which have been considered, the element of race animosity is absent, and the interests of the opponents are often not really conflicting. Is it Utopian to hope that the great waste and suffering of war between Labour and Capital may gradually give place to more civilized and more rational methods?


Notes for this chapter

A learned writer has recently given good reason for asserting that Christianity was persecuted not as a religion but as an association, and that the Roman Empire was opposed to all associations whatever with the sole exception of Benefit Clubs. The Church in the Roman Empire, pp. 354-360. Ramsay.

End of Notes


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