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For example, an agreement by three luggage manufacturers to divide their sales territories so that each could sell his goods without competition from the others in his assigned territory was enforceable because it left the trade open to any third party. See Wickens v. Evans (1829).
Thus, it is neither instructive nor accurate to reconcile all cases or to force the common law preceding the Sherman Act into any single mold. See Michael J. Trebilcock, The Common Law rulings and the conflicting interests they sought to reconcile is useful because it illuminates a central feature of the antitrust statutes. By anchoring the Sherman Act in a dynamic body of legal principles, Congress insured that the new antitrust statute would have an evolutionary character. Future interpretations of the statute would undergo recurring adjustment by the same changing currents of politics and economics that had shaped the common law before 1890. See Herbert Hovenkamp, The Sherman Act and the Classical Theory of Competition, 74 lowa L. 1019(1989).
Common law landmarks also offer a valuable perspective on judicial antitrust analysis. Common law precedents influenced early antitrust decisions, and recent antitrust opinions continue to use common law cases to define doctrine. (1988);National Soc’y of Prof. Engineers v. United
States (1978). The “rule of reason,” first applied in 1711, remains the basic standard for deciding close antitrust cases. (Its meaning has changed over time and is still changing.) Ancient property law rules against restraints on alienation continue to govern resale price maintenance. Whether such precedent deserves so many honors, however, is unclear.
A. CONTRACTS IN RESTRAINT OF TRADE
A complex system of guilds regulated relations among master, journeyman, and apprentice in feudal England. Periods of service, wages, and prices were defined, usually by custom or statute. Occasionally a master would seek to extend the usual term by preventing his servant from becoming a full-fledged master at his term’s end or by otherwise protecting himself from competition. Although it is unclear whether John Dyer was a journeyman, apprentice, or master in the first known case, Dyer’s Case (1414), the court angrily denied an attempted collection on a bond for a John Dyer’s breach of his agreement not to “use his art of a dyer’s craft within the town ... for half year.” Not only was the condition restraining the dyer void as against the common law, but the court said it would have fined or imprisoned the plaintiff had he been in court. It seems, then, that the common law of trade restraints originated not with notions of competition and protection of the free market, but rather in support of “fair” commercial activity and of crumbing guild customs.
