The Trust Problem in the United States

By Eliot Jones | Go to book overview

CHAPTER XIII 1
THE COMMON LAW RELATING TO COMBINATIONS AND TRUSTS

The law relating to combinations and trusts is of two kind-- first, common law, and second, statute law. Statute law, in turn, may be either that of the states or of the federal government. Though we are concerned in this treatise mainly with the development of statute law (and particularly of federal law), a brief consideration of the common law decisions of the courts will be advantageous, especially since the Supreme Court in the Standard Oil case held that the term "restraint of trade" as used in the Sherman Act should be construed as declaratory of the common law on this subject.2 Common law, it may be said, imports a system of unwritten law, not evidenced by statute. Its sources are found in the usages, habits, manners, and customs of a people; its seat, in the breast of the judges who are its expounders.3 Common law yields to statute law, where such exists, yet until the late eighties there were very few state statutes dealing with industrial combinations and trusts, and until the passage of the Sherman Act in 1890 there was no federal statute. It was therefore only to be expected that a considerable body of common law doctrine had developed with respect to restraints of trade and combinations of one type or another.

The rule was early established in English law that contracts or agreements in restraint of trade were void, and therefore non-

____________________
1
On this topic see the Report of the Commissioner of Corporations on Trust Laws and Unfair Competition, chs. 2, 7; and Goodnow, Trade Combinations at Common Law, Political Science Quarterly, 12, pp. 212-245. The author has made liberal use of these works in preparing this chapter.
2
Cf. remarks of Senator Hoar in Cong. Record, April 8, 1890, p. 3152.
3
Judicial and Statutory Definitions of Words and Phrases, second series, p. 810.

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