The Appeal. [volume] (Saint Paul, Minn. ;) 1889-19??, 1904-10-08
LAW AND The TRUSTS
ex. ATTORNEY GENERAL KNOX
- REPLIES TO JUDGE PARKER
Most Eminent Authority in the Coun-
try says There IL No Co m mon Law
s of the United States that Furnishes
n Remedy Against Monopolies.


il of the United States that Furnishes
Remedy Against Monopolies.
Judge Parker, in his letter Of accept
ance. said the common law affords
complete legal remedy against monopo-
lies. President Roosevelt, in his letter
of acceptance, denied Mr.. Parker's as
sertion by saying that there is no COM
mon law of the United States. Now
comes former Attorney General Phllan-
der c. Knox, probably the most eminent
authority in the country on the trust
question, who upholds the position taken
by the President and shows that Judge
Parker is as ignorant of the law as he
is of the tariff and other national Ques-
tons.
Mr.. Knox's Speech.
In a speech at Philadelphia, on the
night of Oct 1, Mr.. Knox said:
I'm Judge Parker's speech to the mott
fcation committee when speaking OF the
trusts, he said: The common law as de-
veloped affords complete legal remedy
against monopolies.'
lin President Roosevelts letter of .ac-
l.
no common law Of the United States
Judge :Parker's letter Of acceptance,
citing a case rejoined that The Supreme
Court decided that common-laW prlncl-
pies could be applied by United States
courts in cases involving Interstate COM
merce in the absence of United States
statutes specifically covering the case.
Such is the law Of the land
'Of these three propositions the last
two are sound. The first is not. Judge
Parker's statement that the common law
furnishes complete legal remedy
against monopolies must, like all other
general statements, be considered in con-
nection with the subject Of which 1t IS
predicated. The Judge was discussing
trusts and the people wanted to know
how interstate commerce could be pro-
tected against restraints and monOpo-
lies. The Republican party thought 1t
could only be done by legislation, and
passed the Sherman act for that purpose
which was supplemented by the legisa-
ton of the Fifty-eighth Congress. Judge
Parker thinks the common law affords a
:complete'-note the word-'a complete
legal remedy
president Roosevelt's reply that
there is no common law of the. United
States means there is no common law Of
the United States that furnishes a com
plete, or, I may add, even an incom-
plete legal remedy against restraints and
monopolies.
"Judge Parker's rejonder to this was
either intended to mislead the people or
he does not know what the case to which
he refers decides or what the rule of the
s1 law IS as ~ of1Dfrfa ~" re-
straint of trade. l prefer to think the
latter is the correct explanation.
Gaze Cited by Parker.
'',The case to which he refers decides
simply that as between parties who are
threshing out their differences in law
suit in the United States Court the rules
of the common law will be applied by the
United States Courts, when different
rule has not been supplied by United
States statute, and this is so though the
matter out of which the controversy
arises relates to Interstate commerce. as
it always has been in respect Of other
matters. Specifically, the case decided
that telegraph company was liable for
damages for charging one newspaper
more for furnishing dispatches than it
charged another for the same service I'M
der like circumstances. Judge Parker's
didactic utterance that Such is the law
Of the land with which he concludes the
discussion of this point, is true, but no
more relevant than if he had announced
any other indisputable legal proposition
''1Nhe decision in the case to which he
refers does not mean what it is intended
the people should think it means, namely,
that the common law can prevent per-
sons from making combina tons and mon
opolies in restraint of interstate com
merce and that the United States could
proceed against them at common law.
can agreement in restraint of trade is
not and never was unlawful at common
law in any such sense as that the agree
ment could be nullifed by public author
ity or that persons not parties to it could
sustain an action against it for damages.
It takes statute law to confer such rem
edies, and the President is clearly right
in saying There is no common law Of
the United States for any such purpose.
"Parties to an agreement in restraint
of trade cannot enforce them, as between
themselves, at common law. But that is
another question: AS this is not legal
argument 4 will not pursue the subject
further. Those who are curious to fol-
low it out will find most satisfactory
discussion of the question by the law
lords of England in the Mogul Steam
ship Company VS.. McGregor. Bowen,
L. j., quoting Lord Crompton, in that
case states the proposition concisely in
this language: NO action at common
law will lie or ever has lain, against
any Individual or individuals for entering
into a contract merely because it is in
restraint of trade Also. that contracts