Popular Law-making: A study of the origin, history, and present tendencies of law-making by statuteStimson, Frederic Jesup
History
Popular Law-making: A study of the origin, history, and present tendencies of law-making by statute
Stimson, Frederic Jesup
Legislation -- United States
Legislation against combinations of properties to bring about
monopoly, or contracts in restraint of trade, is the last field of
legislation we have to consider in connection with property, and
possibly in the public mind the most important. Although the law
against combinations of laborers rests upon much the same principles,
it is perhaps best to give a special chapter to combinations of
property, leaving labor combinations to be treated in that special
connection. The matter has been written up so voluminously that it
might be difficult to say anything new upon the subject, yet for that
very reason it may be as well to analyze it into its simplest elements
at the common law, and then trace its recent development in our
somewhat unintelligent statute-making. At common law, then, these
obnoxious acts may be analyzed into five definite heads: forestalling,
regrating, and engrossing--which have been thoroughly defined in an
earlier chapter and the modern form of which in modern language might
be called restraining production or fixing prices, the buying
and selling of futures or gambling contracts, and cornering the
market--restraint of trade, and monopoly. The broad principles,
however, upon which the gravamen of even these first three rests, is
restraint of trade, which was always obnoxious at the common law.
Contracts in restraint of trade, except such reasonable contracts as
partnership, or the sale of a business with condition not to engage in
the same trade in a certain limited locality or for a certain, limited
time, have always been void at the common law. They are not, however,
criminal except by statute, though a combination in restraint of
trade, etc., was always so. We found many such statutes as we also
found laws which gave a penalty in double or treble damages to the
person injured by such combination or contract. The great case of
monopolies, reported in full in the seventh volume of the State
Trials, is a perfect mine of information on this subject, having been
argued many months at great length by the greatest lawyers, three of
whom later were chief-justices of England. This is not the case of
the playing cards, Darcy's case, commonly called the "Monopoly Case,"
which is briefly reported in Coke and covers a far narrower subject,
the royal grant for a monopoly in the importation (not manufacture or
sale) of playing cards, presumably because Coke's reports are far more
accessible than the somewhat rare editions of the State Trials; but
the great case brought by the British East India Company against one
Sandys, the loss of which would have forfeited its charter and its
business, and possibly put an end to British dominion in the East.
Its charter dated from the early years of Charles II and the 43d
Elizabeth. It brought suit against the defendant, who freighted a
vessel to East Indian ports. Mention in it is made of a charter to the
Muscovy Company as early as Philip and Mary, a much earlier date than
Public-domain text, read in full here on John Shaqi.
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