The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1902-10-15


affect commerce. but did not for that reason
invoke the federal power over commerce.
and the illustration from the converse OF
the situation is significant on the point just
stated.
CONGRESS HAS POWER.
Congress. under this power, prevents
the importation or transportation of arti-
cles deemed injurious to the general well
fare. Thus the law subjects the movement
OF explosives TO safeguards ard burdens,
absolutely excludes impure literature and
diseased cattle, convicts and contract Ia
Dor, and scrutinizes and prevents or checks
many foreign and interstate movements
throughout the entire field OF international
ana national intercourse, in the interest or
all the people, grounds of commercial,
nyglenic or ethical policy. Who shall set
limits now in advance of a carefully framed
and judicially tested law to the competence
of Congress to regulate commerce in the
way suggested in the exercise of the legis-
lative wisdom and in the wide discretion
confided TO it? Who shall say that the
power of Congress does not extend so far?
L think ii does. L am quite sure no one
can now say that ii does not
Every constitutional question Is an open
one until 1t is authoritatively closed by
a decision of the Supreme Court. The Pres
ident said in his first message he did not
think the authority of Congress to protect
the people against the evils of the trusts
had been exhausted. The views have ex-
pressed are but an amplification OF his.
Public sentiment is sufficiently aroused and
the situation is sufficiently grave to call
for the effort the President is making to
secure an authoritative exposition of exist
Ing laws, and suggesting additional ones
TO the END that the public mind shall be
set at rest and these economic questions
taken from the domain OF controversy ana
uncertainty"
The attorney general then related what
had been done by his department in bring
ing suits against alleged illegal combina-
| tons. In concluding this feature Of his
address he said:
Here, then, are four phases of the at
tack on combinations in restraint OF trade
and commemorative railroad injunction
suits, the cotton pool cases, the beef trust
cases and the Northern Securities case.
The first relates to the monopoly produced
by secret and preferential rates for railroad
transportation; the second to railroad traf-
| nc pooling; the third to a combination or
independent corporations to fix and main
| tain extortionate prices for meats, and the
| fourth TO corporation organized to merge
into itself the control of parallel and COM
| peting lines of railroad and eliminate COM
petition in their rates of transportation.
There appears to be no doubt OF the
| facts set out in the bills filed in these
various cases. The combinations proceeded
! against are in some respects different from
| those considered in cases that have been
| decided by the Supreme Court, and Ii Is
| said by their organizers that they have
| avoided the prohibitions of the antitrust
| law. The Department of Justice, being OF
/ opinion that they are each in violation of
that law. found it to be its manifest duty
| to so advise the President, with the result
| which is known to all.
My whole purpose in what have said is
! to challenge the proposition that we are
| hopelessly helpless under our system of
| government to deal with serious problems
! which confront ps in respect to our great
| est interests. Since the radical questions
| or human rights and human governments
| have been settled, the production, preser-
| walton and distribution of wealth receive
the chief attention Of civilized peoples.
ARBITRARY LAWS UNWISE.
1.-The extent to which legislative control
over commercial activities should be exer-
cised is, of course, a question for legislative
| wisdom. We have the experience of the
| other nations to guide us in determining
how far the delicate and mysterious rules
of trade can be interfered with by positive
statutes without injury. That experience
teaches us that the least interference con-
! sistent with the preservation Of essential
| rights should exist. Arbitrary regulations
that restrain free intercourse are usually
found to be unwise.
| primarily IL is for Congress 10 decide
whether 1t has the power and whether and
| to what extent it will execute it-what
| character OF restraints whether all or those
| only which are unreasonable and injurious
| shall fall under the ban, whether leglSla-
| ton in the first instance should extend to
all commerce or only to commerce in arti-
| Giles or vital Importance to the people. The
! time never was when the English-speaking
| people permitted the articles necessary for
| their existence to be monopoliZed or con-
| trolled, and all devices to that end found
condemnation in the body of their laws.
! The great English judges pronounced that
such manifestations of human avarice re-
CURED statute to declare their unlaw-
| fulness, that they were crimes against
common law-that is, against common
| right.
1T is difficult to improve upon the great
unwritten code known as the common law.
| Under its Salutary guarantees and re-
| straints the English-speaking people have
| attained their wealth and power. 1t con-
| dennis monopoly and contracts in restraint
| Of trade as we'll. The distinction, however,
| between restraints that are reasonable in
view of all the circumstances and those
| which are unreasonable is recognized and
| has bean followed in this country by the
| courts. This distinction makes a rule that
may 5e practically applied. and preserves
the rational mean between unrestrained
commer66<end the absolute freedom of con-
"a iaV8regulating interstate commerce
for its protection against restraint, so broad
| as to cover all persons whose business is
| conducted under agreements which are in
any way or to any extent in restraint of
| trade, might exclude thousands of small
| concerns conducting industries in one State
| from marketing their products in others;
| but law which only covers contracts and
| combinations i'm restraint of trade as de-
| fined by the common law would exclude all
| hurtful combinations and conspiracies.
| Congress can, If ii sees fit, adopt the
| Scneme or tndt law. In the enforcement OF
| such law each case as il arose would be
| considered upon its own facts. and the rule
| of guidance would be as laid down by the
| Supreme Court Of the United States; that
is, public welfare is first considered, and
| IL it be not involved and the restraint upon
| one party is not greater than protection to
| the other party requires the contract may
under the particular circumstances of the
| case and the nature of the particular con-
tract involved in it, the contract is or is not
| reasonable
A REASONABLE CONTRACT
LET me give you an Illustration showing
the difference between reasonable and
| an unreasonable arrangement or contract
| at common law. First, as to a reasonable
| one: The case of sale of business and
Its good will is good illustration. Here a
| restricted covenant upon the part of the
vendor not to engage in competition in a
| similar business is often the main consider
| alton for the transaction. This covenant
| Is, of course, in restraint Of trade and in
| terferes with competition. But to make a
| contract such this illegal is not only
| restrictive of the liberty of contract but
| il is depriving one of his property without
| due process of law. Good will is property
| capable of being appraised, bought and
| sold In many cases it is the main ingre-
| dent of value. 1t represents all the strug-
| gle, industry, tact and judgment that make
| success. In estimating the worth of a
| business it is not infrequently reckoned
| more valuable than the buildings and ma
| chinery that make up the physical plant
Such a contract has been held reasonable
| and valid.
Now, as to an unreasonable agreement
l IL