common law been thoroughly
remembered and understood by our bench and bar, to say nothing of our
legislatures, very little anti-trust legislation by the States
would have been necessary except, again, of course, to affix modern
penalties to such offences. There has, however, been a vast amount
of such legislation. In so far as such legislation has embodied the
common law, it has stood the test of the courts and been of some value
in repressing objectionable trusts or contracts. In so far as it has
gone beyond the common law, it has often proved futile and still more
often been declared unconstitutional by the courts.

To the five principles of the common law set forth above we have,
perhaps, added two new ones. Besides fixing prices, limiting outputs,
cornering the market, contracting in restraint of trade, and acting or
contracting with the purpose of gaining a monopoly--all of which were
objectionable at common law--we have legislated in some States against
the securing of discriminatory railway rates for the purpose of
establishing a monopoly, and against what we have termed "unfair
competition"--that being generally defined to be the making of an
artificially low price in a certain locality for the purpose of
destroying a competitor, or the making of exclusive contracts; that is
to say, refusing to deal with a person unless he binds himself not to
deal with anybody else. This last thing can hardly, however, be said
to add to common-law principles. Nevertheless, some of the newer State
anti-trust statutes prescribe it so definitely that it may be treated
as a modern invention.

All this legislation is extremely recent. In the writer's digest of
"American Statute Law," published in 1886, I find no mention of trusts
in this modern sense, though a special chapter is given to them in
volume II, published in 1892. The first legal writing in which the
word was used and the rise of the thing itself adverted to is, so
far as I know, a contribution to the _Harvard Law Review_, entitled
Trusts, vol. I, page 132; but the trust then had in mind was the
simple early form of the railway equipment trust said to have been
invented in Pennsylvania, which was indeed copied in the first
agreement, so long kept secret, of the Standard Oil Trust; and also
the corporate stock trust, that is to say, the practice then beginning
of persuading stockholders to intrust a majority of the capital stock
of the corporation into the hands of trust