The Minneapolis journal. [volume] (Minneapolis, Minn.) 1888-1939, 1903-07-09
WAS BADLY ADVISED.
Lawyers Should Have Known Bet
ter Than Form the
Merger.
Thayer Decision Warmly Commend
ed by Eminent Law
Writer.

for May and June contains strong article
by the editor, Seymour D. Thompson, COM
mending the decision Of the circuit court
in the Northern Securities case. Mr..
Thompson Is a very dispassionate critic,
but he has always upheld the contention
of the government and the state In the
merger cases, and he comes out vigorously
in support of the decision. After quoting
extensively from the opinion Of Judge
Thayer and the decree, he says
After going over this opinion, and in
deed without going over it, it is difficult to
understand how eminent counsel could
have advised that such a combination
would Withstand the federal statute. 1t is
difficult to understand how counsel could
have advised their clients to invest in the
securities Of the Northern Securities COM
pany. 1t is, however, to be said that our
hindsights are generally more accurate
than our foresights, and that lawyers who
have spent considerable portions of their
time In organizing so-called trusts, de-
vised to monopolize industries and sup
press competition, and who have witnessed
the general success Of those trusts, have
fallen into the habit of doing their think
ing on that side of the questions involved,
with fatal inveteracy. The truth seems
! to have been, until Attorney General
Knox woke up the crowned monopolists
and "shook them from their slumbers on
the throne" that the Sherman antitrust
| letter. The statute had received an al
most deadly wound at the hands of the
supreme court of the United States In the
sugar trust case, where the court, stumbl-
ing on the weak proposition that COM
b1nation to monopolize the manufacturing
OF an article OF commerce was not COM
bination In restraint of commerce, manu-
featuring not being commerce, but only
a preparation for comm erce-held that the
statute did not apply to that gigantic in
terstate monopoly known as the sugar
trust, which had absorbed and monopo-
lied the whole trade in sugar, with the
exception of about per cent of it. Down
to the end Of the year 1901 only twenty
three suits had been brought by the gov
eminent under that statute. The efforts
Of the government were in a large measure
paralyzed by the decision in the Sugar
Trust case. and confidence in the DISPOSE
ton of the supreme court to enforce the
statute was largely impaired Of these
twenty three suits the government had
lost eleven, had accomplished nothing ir
two, and had won in ten, four of which
were against labor unions and strikers
; Since the year 1901 three other suits have
been brought under the statute, thai
against the Beef, Trust, which resulted il
an injunction granted by United State!
Circuit Judge Grosscup at Chicago; tina
resulting In an injunction granted b!
. United States Circuit Judge Morrow a
San Francisco; and that against tn,
Northern Securities company just decided
In view Of these facts, there is small won
; der that the lawyers who advised that thi
gigantic combination could be safely un
dertaken had come to regard the Sherman
antitrust law as substantially a dead let
ter, and had proceeded with the feelin,
that the administration would do nothin,
to enforce it In this particular case.
It should be said In conclusion tina
Attorney General Knox and Assistan
: Attorney General Peck have won plaudits
not only from their professional brethren
but from the general public, for the ski
- and energy with which this case has bee
Q organized and prosecuted. The judge
% who concurred in rendering this decisio
g are also entitled to the public thanks, Il
4 indeed, judges can be said to be entitle
% to thanks for doing their simple and OBJ
9 vious duty. To bestow upon them specia
x thanks for their conclusions would
4 somewhat like thanking a jury for bring
. Ing In a verdict of guilty after the pris
~ oner had pleaded guilty. They are, how
ID ever, entitled to thanks for the great pa
% thence with which they have heard tn
% argument in this case. r.....
n Since this opinion was rendered. til
Is hair-brained proposition has been re
- newed that the Sherman antitrust az
20 was not intended to apply to railroads {
j. all, but only to industrial trusts Their
Is nothing either in the language of til
act or in the historical circumstances SUI
rounding Its passage which will justit
putting such a narrow construction upo
e it. Its language is broad enough to ir
clude an attempt to 1sonopoli:b inter
state transportation as well as any otht
species Of monopoly of interstate or fol
eign commerce. Besides. it appears frol
a speech In support Of the bill by Sens
tor Sherman, who was it's author, that
l. was intended to include railway transpc1
al tation. He said: .-.-.....-...
II If the combination affects intersta,
= transportation, or Is aided in any wa
IN by transportation company, it fal
- clearly within the power Of congress, ar
70 the remedy should be aimed at the COZ
J. porations embraced in it, and should /