The sun., 1908-01-15
Laws TEAR CANNOT NE EN-
FORCED.

To THE EDrroR or The gUN--SiY: Tho
sherman law declares that every person
who shall make a contract OF agreement Of
the character therein described shall be
guilty OF a misdemeanor, and -on oonvio-
tion thereof shall be fined or imprisoned
in the discretion Of the court
Inc railway rate law a. amended In
1909 and modifying the Elkins Law has .
similar punitive declaration.
II ought not to be necessary TO say that
the Federal Constitution enioins that -thO
trial OF all crimea. except IN cases Of i'm
peachment. shall be by jury misds-
meanor is q crime. and 50 every one Az
rAlgned as an offender under those statutes
must be tried BY twelve Of his oountrymen.
who must render a unanimous verdict Of
guilt or there iS no conviction"
An unusual condition under those stat
uteS now oonSronts Congress and the ooun-
Try. The President and the Secretary Of
war arnrm that petit iurymen will not
convict under an indictment which per-
mits the trial Judge to imprison. What b
TO be doneg There have been bad laws
that could be executed. President Grant
found that a good way OF repeating such 10
TO enforce them. But the President wrote
TO the present Congress that the Sherman
law Is profoundly immoral and "incapa-
BILE OF full enforcement And yet in the
beginning Of his Administration the literal
enforcement OF that very law was the chief
thing In my policies but warned. as he
said. by his Interstate Commerce Commis-
sion that Interstate railways cannot be
operated in obedience to the Sherman law.
and without concerted action" by railway
managers. he has succumbed TO the -male-
factors" That last is not Of much conse-
quence inasmuCh as the outcry made by
himself and Bryan was chiefly political in
the sense Of party tactics. but the cause Of
revolt by jurymen is Of great Importance.
It might be suspected that the prosecu-
tions have been feeble had not Congress
given to the President half a million of
money with which to get facts and lawyers,
and we're it not that my policies depended
on convictions and imprisonments. Mr..
Taft. however. in his elaborate speech be-
fore starting to 60 around the world, said
ditto" TO his chief and assigned these as
the reasons why the President and his
Attorney General were impotent in the
matter:
IL Is difficult 20 induce juries to convict Indl-
ViduAls OF violation of the anti trust law II I'M
trust tho Governments declined 20 accept plea OF
guilty BY the Individual defendants, offered on
condition that only the penalty Of 1ne be Imposed,
and the result was that the Jury did not hesitate
TO stultfy itself by finding the corporation guilty
and acdulttlng the Individual defendants who had
personally committed the acts upon which the con
victiOn OF the corporation was based In the early
enforcement OF a statute which makes unlawful.
because OF Its evil tendencies that which mas been
In the past regarded as legitimate. juries are not
Inclined by their verdcts 20 imprlson individuals.
There is no reason why the same impede
ment should not exist in enforcing imprisone
nent under the railway rate law OF 1905.
Mr.. Taft was quite right Those stat
utes endeavor to inhict imprisonment for
doing that which has been in the past
regarded as legitimate Although the
practices condemned were bad practices,
yet they had hourished 50 long that they
had well nigh come to be established Gus
toms, which no reforIner and no statute
could suddenly change. And, besides that,
the portion Of our cOuntrymen going into
jury boxes, some Of them politicians, might
have seen the partisan motives that in
spired the efforts 10 put -malefactors@ be-
hind prison bars as a spectacular object in
a national convention. Business men have
for a long time. and especially since the
Presidents speech at Nashville on the day
before the panic began in New York. been
in fear of indictment and arrest under that
prohibition OF the Sherman law. which has
been an appalling weapon.
In his Chicago speech OF April %. 1904.
Bryan made it a chief ground Of complaint
a against New York Democrats that they ap-
proved the attitude Of Mr.. Justice Brewer
Of the Supreme Court. as understood by
Bryan.
The opinion Of the majority of the court
that the prohibitory provisions of the Sher-
man law apply to all agreements in restraint
Of interstate trade. even IL reasonable.
is an unenferced law of the land. which |
Congress should straightway repeal.
The question Of reasonableness is one
of economic fact. the decision Of which |
should not be placed beyond review in the |
bands of any interstate commerce COM
mission as the President and Mr.. Taft in J
sist. Reasonable railway rates and reason
able restraints Of trade should have a COM |
non Judge. IL decision Of the question of |
were to become a political |
and party question. there might in the end |
De little trade TO restrain. either reasonably |
)r unreasonably. Swinging that big stick |
gain might do it's perfect work in creating
)anic on panic. REPEAL.
New YORK, January H.