de 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