Company as early as Philip and Mary, a much earlier date than 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.

All this legislation is extremely recent.  In the writer’s digest of “American Statute Law,” published in 1886, I find no mention of trusts in this modern sense, though a special chapter is given to them in volume II, published in 1892.  The first legal writing in which the word was used and the rise of the thing itself adverted to is, so far as I know, a contribution to the Harvard Law Review, entitled Trusts, vol.  I, page 132; but the trust then had in mind was the simple early form of the railway equipment trust said to have been invented in Pennsylvania, which was indeed copied in the first agreement, so long kept secret, of the Standard Oil Trust; and also the corporate stock trust, that is to say, the practice then beginning of persuading stockholders to intrust a majority of the capital stock of the corporation into the hands of trustees, receiving in return therefor trust certificates, with a claim to the net earnings of the corporation, but without real voting power; and there are cases in which such trusts were sought to be held invalid and enjoined in equity, sometimes with and sometimes without success.