fare.

Sec. 8. #Common law remedy for monopoly ineffective.# The common law
contained prohibitions enough, both broad and specific, against
contracts and acts in restraint of trade. The common law contained
likewise a closely related body of doctrine by which the railroads,
as common carriers, ought to have given equitable and undiscriminating
rates to all shippers. There was a strong body of influential opinion
that long maintained that the case was sufficiently covered, that the
only thing needed was to enforce the common law. Even now, after all
that has elapsed, there are some in railroad and business circles
who still appear to hold that opinion. But the evils of railroad
discrimination and of other monopolistic practices continued, and for
some cause the common law was not enforced, excepting occasionally,
disconnectedly, and without important results.

Why? The answer may be ventured that in the common law the whole
question of restraint of trade was treated primarily as one of private
rights and only incidentally as one involving general public policy.
Cases came before the courts only on complaint of some individual
that felt injured. Now the injury of higher prices due to contracts in
restraint of trade is usually diffused among many customers, and
the loss of any one is less than the expense of bringing suit.
Consequently, it rarely happened that cases were brought before the
courts except by one of the two equally guilty parties to a contract
in restraint of trade, when the other party had failed in some way to
do his part. When such an illegal contract in restraint of trade was
proved before a court by a defendant in a civil suit the contract was
declared unenforceable, and the only penalty in practice was that the
plaintiff could not collect his debt or secure performance from the
defendant.[12] A very similar situation existed in the case of the
individual's grievances against railroad charges and services.

Sec. 9. #Federal legislation against monopoly.# The passage of the
Interstate Commerce Act in 1887[13] prohibiting discrimination and
railway pooling, and that of the Act of 1890 "to protect trade and
commerce against unlawful restraints and monopolies," popularly known
as the "Sherman Anti-trust Law," were part of one public movement to
remedy monopoly. From one point of view it seems true, as has often
been said, that in essence these statutes were simply enactments
of long established principles