Page:American Journal of Sociology Volume 1.djvu/669



RECENT LEGISLATION IN RESTRAINT OF TRADE. from an historical point of view it might be both interesting and instructive to consider particularly the earlier statutes in restraint of trade, commencing with the statute of 21 James I, chapter 3, which declared all "monopolies" contrary to law and void, it will better serve our present purpose to devote this paper to some considerations growing out of the recent legislation in the United States aimed at contracts in restraint of trade, and to an attempt to state clearly the true basis and proper limitations of such legislation, together with some reflections upon the practical utility or feasibility of statutes of this sort, at the present time and under present conditions.

For all practical purposes, whether those of the student, the legislator or the lawyer, restraint of trade and prevention of competition in trade are substantially equivalent, and are governed by the same principles. To what extent, if at all, trade ought to be restrained, or competition prevented by statute, or may lawfully be restrained or prevented by contract, involves, at bottom, elementary questions of public policy. We are to understand, as of course, that the word "trade" in this connection means much more than barter and sale, or merchandising in the broadest acceptation of that term; and must include, when we consider legislation in restraint of it, not only the dealing of merchants, but the business of railroading, insurance and manufacture; and, indeed, not attempting now to speak with scientific accuracy, the