such monopolies were illegal in the time of James is also shown by Lord Coke's own argument and the decision in Devenant's case.[1] In denouncing monopolies, Parliament and courts, and Coke himself, perfectly familiar with the law, confined themselves not to those which alone were admittedly illegal, but only to those whose illegality was still contested—exclusive grants by the sovereign. The contest was not at all whether lesser powers could inflict the curse of "sole sale" upon the people. It was settled long before, that they could not; but whether the sovereign power itself could still do so.
Professor Stimson seems thoroughly to establish this. But beyond this it is now settled by In re Debs,[2] the Addyston case,[3] and Loewe vs. Lawlor[4] that whatever is prohibited to sovereign States is likewise and a fortiori unlawful in mere aggregations of individuals. Finally, that "monopolies," in their modern sense, hark back to their natural and original common law sense as applied to "unifications," etc. See Mr. Justice McKenna's opinion, National vs. Texas:[5] "Unified tactics with regard to prices"—the exact results of "sole sale" seven hundred years before!
But if this be so, why should not the general rule as to "tendency" constituting the offence, be applicable? This would certainly seem worthy of consideration, especially as it makes this provision a vital and useful part of the statute? If one person or group control the whole of a necessary commodity throughout the United States,
- ↑ 1 Moore 580.
- ↑ 158 U. S 581 (1895).
- ↑ 175 U. S. 211 (1899).
- ↑ 208 U. S. 274 (1908).
- ↑ 197 U. S. 129 (1905).
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