IX

TRUSTS AND MONOPOLIES

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