SCHEMES TO CONTROL THE MARKET. BY BRUCE WYMAN, Assistant Professor of Law in Harvard University. I. WHENEVER there is an accepted be lief among men that a certain line of policy is for their industrial salvation, that belief has already become a principle of the law. In dealing with the eternal problem of competition and combination the judges have the same social imagination as other men. And as the most of men still think that competition in general is a good, the most of courts yet consider combination an evil. Whether or not it is true that a com bination in restraint of competition is against the better interests of the community may be judged from the many and various instances of schemes to control the market related in this article. II. From the Common Pleas in the year 1415 the following case is reported: "Writ of debt was brought on an obligation of one John Dier, in which the defendant declared upon a certain indenture which he set forth, on condition that if the defendant did not use his art of dier's craft within the town where the plaintiff, etc., for a certain time, to wit, half a year, the obligation should lose all force, etc., and said that he did not use his art of dier's craft in the time limited, which he averred and prayed judgment, etc. Hull.— In my opinion you might have demurred upon him, that the obligation is void, for that the obligation is against the common law, and by God, if the plaintiff were here, he should go to prison until he paid a fine to the king. Strange.—We aver that the defendant has used his art for a time, to wit, vii. days, within the time limited by the condition, and the others to the contrary." From that day to this every contract in total restraint of trade has been held invalid.
Our law has never been free irom the fear that such agreements might result in serious disturbance of the ordinary processes of com petition. This fear was well founded in ancient times, when the market was small, for England had not yet changed from a local economy where each community was sufficient to itself into a national economy which implied interchange of goods between distant communities. Therefore, if one dyer agreed with another not to ply his trade, as likely as not that would leave the other in possession. For that reason the court held the contract against public policy with such righteous indignation. The same industrial wrong was worked by any scheme to gain control of the market. In early days, in a small town, it was quite pos sible for one man to buy up all of a com modity coming into the market, which he could then sell again at his own price. Prac tices such as these were indictable offences in these early times. It was against the public peace that the market should be thus dis rupted. There is much ancient law distin guishing forestalling from regrating, and discriminating between enhancing and en grossing. This sort of distinction on dis tinction is seen in the argument of counsel in King v. Maynard (Cro. Car. 231), an infor mation for engrossing one hundred bushels of salt to sell again. But all of these involved the same mis demeanor, control of the market. This law has all but disappeared as the market has ex panded until it has gotten almost beyond the power of any one man to corner it. But this law remains against combinations in restraint of trade, which often are large enough to take possession even of the modern market for a time for their own ends.
