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
is elsewhere assigned to trading corporations. Hundreds of cases of
unlawful monopolies are cited, among them the case of the tailors of
Norwich, where a combination to work only for certain wages and to
advise others not to work for less and to prevent such others from
getting employment with their own employer, was held a conspiracy and
an attempt to gain a monopoly at the common law. Another case, of one
Peachy, who had by royal grant an exclusive right to sell sweet wine
in London, was held to disclose an odious monopoly at common law and
the king's franchise void.
In the opinion of the writer, had this common law been thoroughly
remembered and understood by our bench and bar, to say nothing of our
legislatures, very little anti-trust legislation by the States
would have been necessary except, again, of course, to affix modern
penalties to such offences. There has, however, been a vast amount
of such legislation. In so far as such legislation has embodied the
common law, it has stood the test of the courts and been of some value
in repressing objectionable trusts or contracts. In so far as it has
gone beyond the common law, it has often proved futile and still more
often been declared unconstitutional by the courts.
To the five principles of the common law set forth above we have,
perhaps, added two new ones. Besides fixing prices, limiting outputs,
cornering the market, contracting in restraint of trade, and acting or
contracting with the purpose of gaining a monopoly--all of which were
objectionable at common law--we have legislated in some States against
the securing of discriminatory railway rates for the purpose of
establishing a monopoly, and against what we have termed "unfair
competition"--that being generally defined to be the making of an
artificially low price in a certain locality for the purpose of
destroying a competitor, or the making of exclusive contracts; that is
to say, refusing to deal with a person unless he binds himself not to
deal with anybody else. This last thing can hardly, however, be said
to add to common-law principles. Nevertheless, some of the newer State
anti-trust statutes prescribe it so definitely that it may be treated
as a modern invention.
Public-domain text, read in full here on John Shaqi.
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