The sun., 1908-03-25
rRE sHEANAN ANTI.TRUsr LAW.


half baked sherman law Of 1890 is at the
end Of nearly twenty years 10 DO thrown
again into the oven.
Mr.. Gray Of Delaware said Of the meas
ure when on March 20, 100. II was under
debate In the Senate;
DO not think II wise siatetmGnihlp ihat We
should burn the house In order 10 gst I'D Of TIE
rau.
The chairman Of the House Judiciary
Committee when reporting II 70 the House
remarked.
Now ,uSt what contracts Wha, comblnaiions
ln the form Of consplracles, will be In restraint OF
the trade or commerce. mentioned In the bill, VIII
not be known until the courts have construed aud
interpreted l,s provisions
Mr. Taft said Of the statute In his memor-
able speech at Bath, Me-, on February s.
1905
II would seem as II Congress knew that the evil
existed but had a most Indefinite Idea how u WAS
10 be described and the matter was apparently
Ipruad over TO the courts
The preamble Of the sherman law de-
clared itS purpose 10 be 10 protect trade and
commerce against URlawfVI rcstraintS but
Senator Hoar said in the Senate on Janu.
ary Q, 1903, that we did not put into our bill
the words "unlawtully and improperly
restrained, implied In the preamble, be.
cause We were afraid II would be objected
that we we're giving TO the courts a power
to legslate by declaring what would be
unlawful and improper restraint.
The history Of the law, which begins in
Congress in 1888, and not in 1890 as Mr.
Gompers has represented, shows plainly
that ii was intended 10 cover only trade
and not railway transportation, which had
been dealt with in 1887 The United States
had no common law defining an offence
against interstate trade. MIR. Hoar said
in the Senate on April IS, 1890, that the
purpose Of the legislation was 10 provide .
remedy for any one injured by restraint Of
his interstate trade and To apply English
common law principles to such trade,
The prime dificulty with the Sherman
law has been brought about by the rule
that the invention Of Congress must be
gathered from the words II has finally used
and the President approved. A statute
cannot, as Mr.. Gompers seems to think, be
interpreted according 10 the private conyer-
sations Of Congressmen. The law declares
that every contract combination, in the
form Of trust or otherwise in restraint Of
interstate trade is illegal That language
cuts out by the roots Mr.. Gompers's con-
demnation Of the Supreme Court, That
language also upsets the Interpretation
- Ns,N L.. l., kvtM NJ he inf
Federal courts Immediately began TO apply
the statute 10 combinations by railway
laborers to restrain free trade among the
States The law seemed to demand 1t.
Very soon came the Trans Missouri Freight
Association Of railroads which had made in
1889 an agreement 10 maintain reasonable
rates In 1892 the United States fled bill
in Kansas under the Sherman law 10 dis
solve the association, which was dismissed
by the Federal inferior courts and was.
under Attorney General Harmon, appealed
to the Supreme Court at Washington Cl60
L. S. r. 2SOI. where the lower courts were
overruled in March, 1897, by five TO four.
The Sherman law was, by the word every,
applied to railways, and the trouble began,
II is regrettable that the court did not
in 1897 declare the law unconstitutional and
1t Is more regrettable that
eleven years ago Congress did not modify
or repeal the law, ltisa pity that Attorney
General Harmon did not leave the Trans
Missouri Freight case where the inferior
Federal courts had left il and refrain from
pushing the Supreme Court into a cul de
sac, Having in the beginning applied the
Sherman law to railway servants obstruct-
ing interstate free trade, II was logical
10 include the railways. The last inclu.
sion led up TO the Northern Securities case
to the decision in which Mr. Gompers and
the Federation of Labor did not object. but
when the Danbury hatters decision came
there was great labor uproaI and the Sher.
man law Is taken In hand by the White
House for revision, as II should have been
in 1897
II Congressman would read an instructive
on the Trans Missouri case
Of that year they cannot do better than
look at half dozen pages, beginning with
page 200, in the Harvard lectures by the
late James {. Carter, recently printed under
the title Law: Its Origin. Growth and
Function Southern Congressman csn
proatably 60 few pages further on
1t is to be hoped that the character Of the
sherman law. its applicability TO capital
and labor, to railway transport alton and
trade and 10 the reserved rights OF the
States will be thoroughly debated In Con.
gress II It shall be thus argued, the yot-
ere will before next November get IDEAS
we'll worth thinking Of. J.V.D.
NV YORK. March "a.
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