The Federal statute was indeed necessary to this extent, that, although the common law was unquestioned, as there is no Federal common law in the absence of statute, and as interstate commerce cannot be controlled by State law, either common or statute, it was necessary for Congress to declare that the principles of the common law should apply to interstate commerce.  It was also doubtless wise to remind the public of the existence of this body of law and to affix definite prohibitions and penalties.  To this extent the anti-trust legislation, both State and Federal, is fully justified.  Nevertheless, it is noteworthy that the older States, where both the legislatures and the bar had presumably a higher degree of legal education, rarely found it necessary to enact statutes against trusts.  There has never been, for instance, any anti-trust law in Massachusetts or in Pennsylvania, or for a long time in New York, for the first statute of that State against trusts was made intentionally futile by being applied only to a trust which secured a complete—­i.e., one hundred per cent.—­monopoly of its trade.

The economic consideration of all such legislation we do not propose to consider; whether it was wise to forbid all forestalling, for instance—­which at the common law meant buying at a definite distance as well as at a distant time; that is to say, a person who bought all the leather in Cordova was guilty of forestalling as well as the person who bought all the sherry that was to be made in Spain in the ensuing year—­what we call the buying of futures.  This is certainly very unpopular, and we find most of our States legislating against it; yet, of course, many economists argue that it is only by allowing such contracts that the price of any article can be made stable and a supply stored in years of plenty against years of famine.  The first historical example of forestalling and engrossing is to be found in the book of Genesis.  Joseph was not, I believe, a regrator, but he was one of the most successful forestallers and engrossers that ever existed, and made a most successful corner in corn in Egypt; and his case is cited as a precedent in the Great Case of Monopolies above mentioned.  James C. Carter tells us[1] that all these laws are contrary to modern principles and were repealed a century ago.  I cannot find that such is the case.  On the contrary, they were made perpetual in the thirteenth year of Elizabeth, and we find perfectly modern trust legislation as early as Edward I, in 1285.  In 1892 I find legislation already in nineteen States and Territories; North Dakota, indeed, having already a constitutional provision.  Three States at least, Kansas, Michigan, and Nebraska, seem to have been before the Federal Act, their laws dating from 1889; while several States have statutes in 1890, the year in which the Sherman Act was enacted.  There has hardly a year passed since without a good many statutes aimed against trusts, though they have shown a tendency to decrease of late years, and it is especially noticeable that anti-trust legislation is apt to cease entirely in the years following a panic, as if legislatures had learned the lesson that too much interference is destructive of business prosperity; I find that by 1908 just about half the States had embodied a prohibition of trusts in their organic law.[2]