The sun. [volume] (New York [N.Y.]) 1833-1916, 1903-04-17
The Facts and the Remedy.

When Mr.. Justice WHITE delivered
the opinion Of the four dissenting Judges
In the Trans-Missouri Freight Associa-
ton case, in which the Supreme Court
established the rule that the Sherman
law forbade all contracts in restraint of
trade without exception, he thus fore
cast the future as the decision shaped it:
But conceding for the sake OF argument tina, the
words every contract In restraint OF trade used
In the act of Congress in question prohibit all such
contracts. however reasonable they may be- and
therefore that all that great body OF contracts which
are commonly entered into between individuals and
corporations. and which promote and develop trade.
and which have been heretofore considered as law
ful are no longer such: and conceding. also. that
agreements entered into by associations of work
inemen TO peaceably better their condition either
by obtaining an Inc rease or preventing a decrease
Of wages or by securing q reduction In the hours of
labor. or for mutually protecting each other from
unjust discharge. or for other reasonable purposes
have become lawful. It remains TO consider whether
the provisions of the act OF 1890 were intended to
apply to agreements made between carriers for the
purpose OF classifying the freight to be by them
carried
II is the recognition Of the truth OF
these conclusions that has now brought
the sense Of panic to the business world.
Tho Northern Securities decision is
declaration at the threshold Of the Su-
preme Court that the rule forbidding
contracts that can be labelled in re-
straint Of trade reasonable or unreal
sonable. even though creating on one side
ten times the trade that they restrain on
the other, is the highest rule known to
Federal law; that the Constitution pro-
vides to no man and to no enterprise
safeguard against the Sherman anti
trust acts memorable restrictions.
Since Justice WHITE spoke, the United
States Department of Justice, in the per-
son Of the Attorney-General, speaking in
behalf Of a political campaign entered
into by the Administration of which he
was a member, has advanced the prop
osition that, through the interstate COM
merce clause in the Constitution, every
phase and feature Of American industry
a. now organized is brought within the
immediate and absolute control Of Con-
gress; and the decision in the lottery
cases goes far to uphold this theory.
This, therefore, is the situation: Logi-
cally. under the law as declared, our en-
tire industrial organization IL q mass Of
lawlessness. as it is permeated with COM
binations and contracts in restraint Of
Trade. Nothing but the general feeling
that the universal upheaval which the
law calls for must not be permitted and
an Administration guarantee OF good
behavior in accordance with this view
secure US as We are. All theories that
everything outside Of the Northern Sc
curities merger is safe rest on something
else than the Northern Securities decis-
ion, and are inadmissible under it.
We are describing the situation without
reserve, in order that the public may
consider soberly the proper course to
take under the circumstances. 1t would
be unwise-indeed. it would be wrong
to lose thought Of the national danger
which Administrative impulse, or, worse
still, the deliberate partisan intent OF an
Administration hostile to the prevailing
order of things, might precipitate. 1t
will be unwise, therefore, to rely upon
any means OF safety short Of the repeal
or modification of the Sherman law