The new era., 1910-01-20


punishment.
The supreme court IN several of Its
decisions, has declined to read Into the
statute the word unreasonable" before
restraint of trade" on the ground that
the statute applies to all restraints and
does not intend to leave the court the
discretion to determine what Is reason
able restraint of trade. The expression
restraint of trade" comes from the COM
mon law, and at common law there We're
certain covenants incidental to the car
rying out of main principal con-
tract which were said to be covenants in
partial restraint of trade. and We're held
to be cnforcible because reasonably"
adapted to the performance of the main
or principal contract. and under the
general contract, and under the general
language used by the supreme court in
several cases, 1t would seem that even
such inc' tai covenants in restraint
of intersti..e trade were within the in
hibition OF the statute and must be con-
demned.
In order to avoid such result have
thought and said that 1t might be well
to amend the statute so as to exclude
such covenants from its condemnation. A
close examination of the later decisions
of the court. however. shows quite clear
ly in cases presenting the exact aues-
ton, that such incidental restraints of
trade are held not 10 be within the law
and are excluded by the general state
ment tnht, 10 be W1tnln tne statute, the
effect upon the trade of the restraint
must be direct and not merely inciden-
tai or Indirect The necessity. therefore,
for an amendment of the statute so as
to exclude these incidental and bene-
ncial covenants in restraint of trade held
in common law to be reasonable, does not
exist.
In some of the opinions of the federal
circuit judges. there have been intima-
tons. having the effect, If sound. to
| weaken the force of the statute by in
| cluding within it absurdly unimportant
combinations and arrangements, and sug-
eesting therefore, the wisdom of chang
| ing its language by limiting its appli-
cation to serious combinations with in
tent to restrain competition control
| prices. A reading of the opinions of the
| supreme court, however. makes the
| change unnecessary, for they exclude
| from the operation of the act contracts
| affecting interstate trade in but small
| and incidental way. and apply the stat
| ute only to the real evil aimed at by
| congress.
| The statute has been on the statute
| book now for two decades, and the su-
| preme court in more than n dozen opin-
| ions has construed 1t in application to
| various phases of business combinations
| and in reference to various subject mat
| ter. 1t has applied 1t to the union un-
| der one control of two competing inter-
| state railroads, to private manufacturers
engaged in n plain attempt to control
prices and suppress competition in n part
| of the country. including dozen states.
| and to many other combinations affect
| ing interstate trade. The value of a
statute which is rendered more and more
| certain in its meaning by series OF de-
cisions of the supreme court furnishes
strong reason for leaving the act as
| 1t is, to accomplish its useful purpose.
| even though If it We're being newly en-
acted useful suggestions as to change of
| phrase might be made.
For Government Control.
| Many people conducting great busi-
nesses have cherished hope and a be-
| lief that in way or other line
| may be drawn between good trusts" and
| bad trusts" and that it is possible by
| amendment to the antitrust law to make
| a distinction under which good combina-
| tons may be permitted to organize. sup
| press competition, control prices. and do
| it all legally If only they do not abuse
| the power by taking too great profit out
| of the business. They point with force to
| certain notorious trusts as having grown
| into power through criminal methods by
the use of illegal rebates and plain cheat
| ing, and by various acts utterly violative
| of business honesty morality, and urge
| the establishment of some legal line of
| sc paration by which criminal trusts
| of this kind can be punished, and they.
on the other hand, be permitted under
| the law to carry on their business. Now.
| the public. and especially the business
| public. ought to rid themselves of the
| idea that such a distinction is practic
able or can be introduced into the stat
| ute.
| Certainly under the present antitrust
| law such distinction exists. 1t has
| been proposed. however. that the word
reasonable" should be made a part of
the statute, and then it should be left to
| the court to say what is reasonable
| restraint Of trade. what is n reasonable
| suppression of competition what is a rea-
| souable monopoly. l venture to think that
| this is to put into the hands of the
| court a power impossible to exercise on
| any consistent principle which will In
sure the uniformity of decision essential
to just Judgment. 1t is to thrust upon
| the courts a burden that they have
precedents to enable them to carry, and
| to give them power approaching
| arbitration. the abuse OF which might
| involve whole judicial system in dis
aSter.
An Aid to Business Virtue.
In considering violations of the anti
trust law we ought. OF course. not to
forget that that law makes unlawful,
methods Of carrying on business which
before its passage were regarded evil
dence of business sagacity and success,
and that they were denounced in this act
not because of their intrinsic immoral
ity, but because of the dangerous re-
suits toward which they tended the con-
centraton of industrial power in the
hands of the few. leading to oppres-
sion and injustice. In dealing, therefore.
with many of the men who have used
the methods condemned by the statute
for the purpose of maintaining profit
able business. may well facilitate a
change by them in the method of doing
busness. and enable them to bring it
back into the zone of lawfulness with
out losing to the country the economy
of management by which. in our domestic
trade the cost of production has been
materially lessened. and in competition
with foreign manufacturers our foreign
trade has been greatly increased
Through all consideration of this
grave question. however, we must insist
that the suppression of competition. the