ute 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repealed the whole common law[1] and those where civil law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 mar