(1275) Far the most important phrase to us found in the Statute of Westminster I, save perhaps that common right should be done to rich and poor, is to be found in this sentence:  “Excessive toll, contrary to the common custom of the realm,” is forbidden.  The statute applies only to market towns, but the principle established there would naturally go elsewhere, and indeed most towns where there was any trade were, in those days, market towns.  Every word is noticeable:  “Excessive toll”—­extortion in rates.  As this statute passed into the common law of England and hence our own, it has probably always been law in America except, possibly, in those few States which expressly repealed the whole common law[1] and those where civil law prevailed.[2] It was therefore equally unnecessary to adopt new statutes providing against extortion or discrimination, for the last part of the phrase “contrary to the common custom of the realm” means discrimination.  But this is one of the numerous cases where our legislatures, if not our bar and bench, erred through simple historical ignorance.  They had forgotten this law, or, more charitably, they may have thought it necessary to remind the people of it.  There has been a recent agitation in this country with the object of compelling great public-service companies, such as electric lighting or gas companies, to make the same rates to consumers, large or small.  This also was very possibly the common law, and required no new statutes; there are cases reported as far back as the fourteenth and fifteenth centuries where, for instance, a ferryman was punished for charging less for the ferriage of a large drove of sheep or cattle than for a smaller number, “contrary to the common custom of the realm.”  Nine years before this statute is the Assize of Bread and Beer, attempting to fix the price of bread according to the cost of wheat, but notable to us as containing both the first pure-food statute and the first statute against “forestalling.”

[Footnote 1:  Florida, Texas, and the old Territory of Dakota.]

[Footnote 2:  Louisiana, New Mexico, and Arizona.]

Now forestalling, regrating, and engrossing are the early English phrases for most of the unlawful or unmoral actions which we ascribe to the modern trust.  In fact, there is hardly one legal injury which a trust is said to commit in these days which cannot be ranked under those three heads, or that of monopoly or that of restraint of trade.

“Forestalling” is the buying up provisions on the way to a market with intent to sell at a higher price; and the doctrine applied primarily to provisions, that is to say, necessaries of life.  Precisely the same thing exists to-day, only we term it the buying of futures, or the attempt to create a corner.  We shall find that the buying of futures, that is to say, of crops not yet grown or outputs not yet created, is still obnoxious to many of our legislatures to-day, and has been forbidden, or made criminal, in many