There is no question then that all contracts in unreasonable restraint of trade were always unlawful in England and are so therefore by our common law.  There was probably no real necessity for any of our anti-trust acts, except to impose penalties, or, as to the Federal or Sherman Act so-called, to extend the principles of the common law to interstate commerce, which is under the exclusive jurisdiction of the Federal government.  The common law, however, made the exception of reasonable restraint of trade, which the Sherman Act does not; that is to say, a contract between two persons, one of whom sells his business and good-will to the other and agrees not to embark in the same trade for a certain number of years or in a certain prescribed locality, was a reasonable restriction at the common law.  So, if two merchants going down town to their business agree in the street car that they will charge a certain amount for a barrel of flour or a ton of coal that week, this would probably be regarded as reasonable at the common law; but the common law, like these early statutes of England, looked primarily, if not exclusively, to the welfare of the consumer; they always speak of the common weal of the people, or of combinations to the general hurt of the people, and general combinations to fix prices or to limit output are therefore always unlawful; so a combination that only one of them should exercise a certain business at a certain place—­like that of our four great meatpacking firms, who are said to have arranged to have the buyer for each one in turn appear in the cattle market, thus being the only buyer that day—­would be unlawful, when the restraint of trade resulting from an ordinary purchase would not be.

The fixing of ordinary prices, not tolls, was thoroughly tried in the Middle Ages and failed.  Nor has it been attempted since as to wages, except in New Zealand by arbitration, and in England and (as to public labor) in the State of New York and a few other States where we have a recent statute that all employment in public work (that is, work for any city, county, or town, or the State, or for any contractor therefor) must be paid for “at the usual rate of wages prevailing in the trade”; this principle, taken from the last form of the English Statute of Laborers, being passed in the interest of the laborers themselves and not of the employers, as it was in early England.  The result of this first piece of legislation was to impose some twenty thousand lawsuits upon the city of New York alone; the laborers working for a year or two at the rates paid by the city and then, after discharge, bringing suit and claiming that they had not been paid the “usual rate” of the trade; and as there were very heavy penalties, it is said to have cost the city of New York many millions of dollars.  In the same way the union idea of having all trades under the control of an organization was carried to its extreme result in the Middle Ages