The sun., 1903-04-18

nsvsd the public intsres, rsquirsdh He bad done
% In making his nrt snnounoement OF the intended
action sganst the Northern Securities merger. The
President had quietly asked the Attorney -0eners,
10 Investigate the complaints that had been made
by the citizens OF slmos, the entire Northwest tha,
their Interests were being threatened by violation
OF the sw. He investg gated this case and reported
TO the President his opinion thai the law was being
violated
The oregoing may be taken as an 40
curate history Of the genesis OF the North
ern Securities prosecution, but President
RoosEvELT's attitude therein Is. In an
important sense, immaterial now. he
had right 70 take care that the Jaws
be faithfully executed as he UNDER
stood them.
The main question now under oon-
sideration relates to the circumstances,
the popular and judicial atm osphere,
in which the Northern Securities Com
panv was organized.
II 10 improbable that 1t was the inten-
ton Of those who were made defendants
In the Northern Securities suit to Violate
the statute. Tho individual defendants
were JAMES j. HILL, WILLIAM p. CLoUoH,
d. WILLIS JAMES, JOHN 8. KENNEDY,
j. PIEBPoNT MORGAN, ROBERT BACON,
GEORGE F. BAKER and DANIEL s. LAMONT.
The Antitrust law declares that every
person who shall mako such a contract,
or engage in such a combination, or con-
spiracy, a. is denounced by that law,
shall be guilty Of a misdemeanor, and
on conviction thereof, shall be punished
by fine, not exceeding 5000, or by i'm
prisonment, not exceeding one year, or
by both said punishmsnts in the discre-
tion Of the court
Men Of the character Of these gentle
men are not likely to enter into contracts,
combinations, or agreements, in the
management Of railway property, in the
face Of such statute, without taking the
advice Of the most competent and i'm
partial lawyers within their reach. IL
must be assumed, therefore, that the
defendants in tho Northern Securities
prosecution had no idea that what they
were doing would be in violation of law.
The literature Of each Of the several
sults-and there have been very few which
have been begun under the statute Of
lS9O-shows that for at least half dozen
years after its enactment its meaning
and legal effect were ambiguous. Som
ator EDMUNDs had said, a. we have seen,
that il was never intended to bs applied
to railways. and Senator HoAR has re-
peatedly said that IL was never intended
TO forbid reaso nable restraints Of trade
They were it's craftsmen.
The suit begun by the United States
against The Joint Traffic Association
was begun in the Southern District Of
New York during CLEvKIAND's admin
istrstion. The Circuit Court decided in
favor OF the railroads. and the Circuit
Court Of Appeals affirmed that decision,
which shows that this New York Federal
circuit took the view Of the statute which
was generally taken In 1895 by the rail-
roads and the public. The Supreme
Court. however. reversed the court be-
low, and followed ita decision made q
little vhile before In the case Of The
Trans Missouri Freight Association,
wherein IL declared that the Antitrust
law Of 1890 applied to railroads, and also
made illegal all contracts in restraint
Of trade. whether reasonable or unrea-
sonable.
That last part Of tho judgment was
not ooncurred in BY four Of the Justices.
WHITE. FIELD, GRAY and SHRAs. They
were Of the opinion that the only restraint
OF trade condemned BY the statute was
an unreasonable restraint, such a. was
unlawful at common law. That Supreme
Court opinion by only Ave justices, deliv-
cred on Oct. 2t, 1898, controlled the decree
in the Northern Securities case. The
Supreme Court had said:
compstasos is however. lower rates and TO thereby
Increase the demand for commodities. the supply.
ing Of which Increases commerce: and an agree
men,. whose nrst and direct effect IL 10 prevent
this play Of competition. restrains instead OF pro.
noting trade and commerce.
The solution Of the problem Of COM
petitive values for services and commo-
dities is q perplexing one, and perhaps not
altogether suited to the purely judicial
mind; but the Supreme Court seems to
have felt itself bound. in defining the
phrase in restraint OF commerce.,
to consider that problem Of competitive
values and to declare that restraint OF
the play Of competition is the same,
in railway business and in law, as re-
straint Of trade.
On Jan. S. 1908. Senator HoAB criti-
cised in the Senate with a good deal of
severity the decision OF the Supreme
Court in The Trans-Missouri Freight
Association case, that tho Antitrust
law oondemned all restraint Of trade.
whether reasonable or unreasonable,
and expressed his concurrence with the
minority Justices. He insisted that the
purpose OF the Antitrust law Of 1890
was only to enforce the common-law
rule In regard to restraint Of trade. and
read to the Senate from so elementary
a book as BoUvIER's Law Dictionary
to show that Congress when it con-
demned epery contract, combination, or