The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1908-07-29
THE SHERMAN LAW.

feOpie who have noticed in the
newspapers good deal of criticism
of the Sherman antitrust act and
who have had their attention called
to it, in particular since the Danbury,
Conn, boycott case and Mr.. Gomper's
protest will be interested in an article
in the Independent. of the issue of
July 16, by Gilbert H. Montague. Mr..
Montague is one of the brilliant young
New York lawyers, graduate of Har-
ward and a former Harvard instructor
in economics. He has written an ex-
cellent book on Standard Oil and an
other or trusts.
In this article Mr.. Montague re-
views the story of the passage of the
Sherman antitrust act and it's make
shift character. He emphasizes, what
has often been said before, that in
the opinion of the supreme court it
makes no difference so far as the act
is concerned, whether the restraint of
trade complained of is reasonable or
unreasonable. He then goes on to
show the anomalies in enforcing the
law, bringing the record down from
the first attempts at enforcement to
the latest. What he has to say is an
VI lIllS law Which, Hldhco
1t simply a reflection on the good sense
of the United States that it can con-
tinue to cumber the statute book and
be an instrument for all kinds of pos
sible harm in the hands of any ad-
ministration who might be irrespon-
sible.
Taking for granted that this con-
dition cannot continue indefinitely,
Mr.. Montague discusses the probable
form of amendment. He notes that
the United States supreme court has
intimated that every benefit promised
by the act would be secured were it
confined in it's operations to COM
binations 'in unreasonable restraint
of trade" He takes up the proposed
amendment of the last congress which
left the question of discrimination in
enforcing the act to the bureau of
or some other appro-
pirate executive body.
This, as he well points out, is case
of tempering the inequities of the act
by system of special immunity, such
power of immunity to be conferred,
not on the legal department of the
government charged with enforcing
the laws, Dut Oh Ill executive anu III
vestigating bureau. The absurdity of
such an arrangement is well brought
out by Mr.. Montague when he says:
Under such a statute every bust
ness man making contracts relating to
interstate commerce-and such con-
tracts are made by scores and hun
dreds in every large usiness-and de-
string to make sure of escaping the
penalties OF law, must file each con-
tract with government bureau and
wait patiently for so days
before completing or executing the
contract
Taking up the question in broader
way, he scores the incongruity Of such
an amendment. 1t is the office, he
notes, of criminal statutes to define
crimes with exactness and then pro-
hibit them. Such statutes ''are not in
tended to be letters of marque in the |
hands Of prosecutors and government |
officials available at their option |
against the entire business community. |
and subject to their favor and special |
exceptions"
Mr.. Montague's final word may or |
may not be embodied in the next |
act of the Sherman anti |
trust law, but it is-a word that will be |
justified at some not dis |
tant future:
when the Sherman antitrust act
Is finally amended, and brought into |
consonance with the public morality |
Of the community, 1t may be confident |
ly expected that it will recognize
the principle that ours is govern
ment of laws. not of men, and will |
forbid merely combinations in I'M
restraint of trade