against both originated about the same time and have run
historically on all-fours together. The old offences of forestalling
and regrating may have been lost sight of, and possibly the statutes
against them fallen into disuse, although they were expressly made
perpetual by the 13th Elizabeth in 1570 and not repealed until the
12th George III in 1772; but the principle invalidating restraint of
trade and contracts in restraint of trade remained as alive as that
prohibiting unlawful combinations of labor. The latter, indeed, has
largely disappeared. Both strikes and trades-unions, once thought
unlawful in England, are made lawful now by statute, but a contract
in restraint of trade or a monopolistic combination of capital is as
unlawful as it ever was both in England and in this country; and the
common law is only re-enforced by our State statutes and applied to
matters of interstate commerce as well, by the Sherman Act. Closely
connected with both is the principle of reasonable rates in the
exercise of franchises; excessive toll contrary to common custom, as
we found forbidden in 1275. The first statute against forestalling
merely inflicts a punishment on forestallers and dates ten years
later, 1285, though the time of this, the Statute concerning Bakers,
is put by some still earlier, with the Assize of Bread and Beer, in
1266. It provides the standard weight and price of bread, ale, and
wine, the toll of a mill. It anticipates our pure-food laws and
punishes butchers for selling unwholesome flesh or adulterating
oatmeal, and says "that no Forestaller be suffered to dwell in
any Town, which is an open Oppressor of Poor People ... which for
Greediness of his private Gain doth prevent others in buying Grain,
Fish, Herring, or any other Thing to be sold coming by land or Water,
oppressing the Poor, and deceiving the Rich, which carrieth away such
Things, intending to sell them more dear,... and an whole Town or a
Country is deceived by such Craft and Subtilty," and the punishment is
put at a fine at the first offence with the loss of the thing bought,
the pillory for the second offence, fine and imprisonment for the
third, and the fourth time banishment from the town.

The first definition of forestalling is here given. Our modern
equivalent is the buying of futures or dealing in stocks without
intent to deliver, both of which have been forbidden or made criminal
in many of our States. And forestalling, regrating, and engr