tion, under (3) above, and thereby, and by unlawful agreements with transportation companies, secured illegal preferences, practically as efficient as a special grant from the government would be; they have been, and have intended to be parties to combinations in restraint of interstate commerce, and have attempted to monopolize, and have monopolized, such trade and commerce. And in this way they have
. . . Engrossed and piled up
The cankered heaps of strange achieved gold.
There is not much in the common law rule of reason, nor in the cases reviewed, to furnish much of aid or comfort to such existing institutions as are similar to those that have been challenged in the courts heretofore.
BY FREDERIC J. STIMSON OF THE HARVARD LAW SCHOOL
(From the American Law Review, January, 1911)
I shall consider here the law of combination, whether of persons or of properties or privileges or franchises, and whether such law differs from the law of the acts and possessions of the individual, and if so in what particulars. This subject is the most important law topic to-day; it is one of the very earliest doctrines of the English law, one which distinguishes the early common law from the law of other countries, and yet was recently, or it may be said still is, one of the most forgotten and the most misunderstood. What remained of it in the minds of lawyers, our fathers' contemporaries, was merely the law of conspiracy; usually understood to mean criminal conspiracy, and even in that narrow field regarded as a law mysterious and technical. The common law on the subject became almost forgotten; the early statutes were unknown; and that is why most of our anti- trust legislation, the Sherman Act included, and much of our legislation in the matter of labor combinations, is confused and clumsy and apt to be either unnecessary or unconstitutional. And now we are told by recent discoverers or agitators that the very basis of this law should be changed. It is asserted -- not only by Mr. Gompers, but by learned judges, and even by the British Parliament -- that modern conditions demand the removal of this entire body of law from our jurisprudence, that is to say, they advance the specious theory that the law of the acts of one should be identical with the law of the acts of many; correspondingly, that the law of the possessions of one should be identical with the law of possessions of many,