Gilpin observer., 1910-01-13


ate with the boundaries of the country.
no state prosecution is able to supply the
needed machinery for adequate restraint
or punishment.
The supreme court In several of its
decisions, has declined to read into the
statute the word unreasonable" before
restraint of trade" the ground that
the statute applies to all restraints and
does not intend to leave the court the
discretion to determine what Is a reason
able restraint of trade. The expression
restraint of trade" comes from the COM
mon law. and at common law there were
certain covenants incidental to the car
ryins out of main principal con-
tract which were said to be covenants in
partial restraint of trade. and were held
to be enforcible because reasonably"
adapted to the performance of the main
principal contract, and under the
general contract, and under the general
language used by the supreme court in
several cases, it would seem that even
such inc tai covenants in restraint
of interstsl- trade were within the in
hibition of the statute and must be con-
demned.
In order to avoid such a result / have
thought and said that it might be well
to amend the statute so 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 uues-
ton. that such incidental restraints of
trade held not to be within the law
and are excluded by the general state
ment that, to be within the 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-
fetal 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-
tions, having the effect, If sound to
weaken the force of the statute by in
GLIDING within it absurdly unimportant
combinations and arrangements. and sug-
gesting, therefore. the wisdom of chang
ing its language by limiting its appl-
cation to serious combinations with in
tent to restrain competition or 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 a 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 a dozen opin-
ions has construed it 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 a plain attempt to control
prices and suppress competition in a part
of the country, including dozen states.
and to many other combinations affect
ing interstate trade. The value of
statute which is rendered more and more
certain in its meaning by a series of de-
cisions of the supreme court furnishes
strong reason for leaving the act as
it is. to accomplish its useful purpose.
even though If 1t were 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 a hope and be-
lief that in some 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-
tions may be permitted to organize. sup
press competition, control prices. and do
IL all legally IL 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 or morality. and urge
the establishment of some legal line of
separation 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 distinction is practic-
able or can be introduced into the stat
ute.
Certainly under the present antitrust
a mr. haS
been proposed. however. that the word
reasonable should be made part of
the statute. and then 1t should be left to
the court to say what is a reasonable
restraint Of trade. what is a reasonable
suppression of competition. what Is a rea-
sonable monopoly. 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 burden that they have no
precedents to enable them to carry. and
to give them power approaching
arbitration. the abuse OF which might
involve our 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 as evil
dence of business sagacty 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-
centration 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 n profit
able business. we may well facilitate n
change by them In the method OF doing
business, and enable them to bring II
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