CONTRACTS IN RESTRAINT OF TRADE. 137 Court of Rhode Island, taken in their order as rendered, are decisive of this subject, especially when an analysis of the previous con- flicting cases shows the doctrine here contended for to be but the fruition of the application of this principle, which, though often unconsciously, was applied in many of those cases. What bearing has this principle upon the solution of the ques- tions arising under " Trusts " ? The learned Dn Dwight in an article on Trusts (3 Political Science Quarterly, 592 (Dec, 1888), also published as Appendix A to the minority report of the Com- mittee on Manufactures, 50th Congress, 2d Session, H. R. Rep. 4165, Part 2), maintains that the rules governing contracts in re- straint of trade are not applicable, because persons constituting "trusts" become partners, and, is well known, partners are not subject to these rules. But with all deference to the opinion of so able and learned a writer, I cannot accept this conclusion, certainly not in those cases where a "trust " is a partnership. or combination of corporations or of other partnerships. Dr. Dwight thinks it is very doubtful whether the offence of engrossing, forestalling, or re- grating (buying to sell again) ever existed at the common law, independent of the statutes of 5 8z: 6 Edward IV., cap. 14, and that when these statutes were repealed courts had no authority to punish offenders. If this be so, in the absence of statutory au- thority the courts cannot now punish offenders of this class, and therefore they cannot reach "trusts," unless they do so on other grounds. On the other hand, upon proper application to a court of equity, has not that court jurisdiction to determine whether or not it is reasonable to allow as valid a secret combination or partner- ship of this nature, whereby a number of corporations or of part- nerships, or even of individuals, at the expense of the public, can parcel out production, supply, and consumption of the necessaries of life, or of anything else, not according to the usual laws of de- mand and supply, but according to the will of an inner circle, acting under delegated authority from constituents whose right thus to delegate their power or thus to use it themselves is doubtful } If the wit of man has brought into existence this new thing, this Frankenstein, surely the wit of man will also prove equal to the task of determining how it shall be rendered amenable to the law of the land and the public good. Amasa M, Eaton, Providence, R.I., September, 189a
