have completely overlooked the fact that such arrangements though made unlawful in all senses by the Sherman Act, were only unlawful in the sense that they would not be enforced—would be treated as nude pacts at common law. However much the parties might proclaim their servitude, the common law simply contented itself by continuing to regard them as free.
But, since the ultimate end in the Mogul case was to restrain trade, though through the legal means of competition, the combination was held in the sense of non-enforceability to be illegal—not legal at all! The difficulty for the plaintiffs in that case, and the sole difficulty, was that, having no Sherman Act, they had to show illegality in means to make it a case of molestation; and without molestation they could not recover damages, for there was no legal "injuria;" and they could but allege savage and unreasonable competition, and see how splendidly they were answered.
Lord Bowen, in the greatest English opinion on this subject, says:[1] "The truth is that the combination of capital for the purposes of trade and competition (what was thought to be the case in the Greene and the Knight cases) "is a very different thing from the combinations of several against one with a view to harm him as falls under the head of an indictable conspiracy. There is no just cause or excuse in the latter class of cases. There is such a just cause or excuse in the former. * * * To limit combinations of capital when used for purposes of competition * * * would, in the present day, be impossible—would be only another method of
- ↑ 23 Q. B. D. 617 (1889).
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