New-York tribune., 1910-09-09
MIR. ROOSEVELT AND
THE SUPREME COURT
A Citation of Views Concerning
knight Case Decision.

b
Sir: Much mas been written within the
last few DAYS in criticism of Mr. Roose-
velt's aIluslon to the decision of the Uniteo
states Supreme Court in the Sugar Trust
case United States agt. E. c. Knight COM
many 156 Il s. u. The part of Mr.. Roose-
velt's speech to which such criticism mas
been directed is that part where he SAID
referring to the Knight case:
The Supreme Court of the United
States. under cover of what man Wn9se
interest is chiefly in sane I. consItrutctiESe guy,
Stewardship can only call a hlghly ?d,, !ecm,
nical subtiety HANDED od7g1n GoTn difticult for
the nation effectively TO control the use % %
masses of corporate capital in interstasIe sse
business, as the nation obviousy, was cnntroI 1tt
for it was quite beyond the power OF any
one state. This was really a declslon rem rem
dering it exceedingly difncult 1oa ore ,4ro11n .
and regulating the business use or siee'
capital in interstate commerce
An examination of the history of the
Sherman law. under which the knight de-
cision was rendered, particularly tnat par
of such history which was contempo-
raneous, or nearly SO, with the rendering
Of that decision, will. 1 think. show thaI
Mr. Roosevelt had high authority lot Tie
comment thus made by HIM
The decision In question was rendered
by the Supreme Court in January 1870 II
being the first case which came before the
Supreme Court under the Sherman anu-
trust law In a letter transmitted 10 the
House of Representatives by Judson Har-
mon lthen Attorney General under Presl-
dent Cleveland). which letter was IN re-
sponse to a resolution Of the House re-
ouesting the Attorney General to report
in regard TO the enforcement OF the Sher-
man law CEN Doc. 234 54th Congress-, the
Attorney General said;
AS construed by the Supreme Court On
the knight case [the sherman law does
not apply to the most complete monoPoLles f onT7
Germs which are naturally compeutlVe,
though they, in fact, control the markers
of the entire eounJry. II engaen gag m +he m IN IN
Cidents of the business and not its direct
and Immediate object. The Utrtudt erect
Of this is to eTclnde from me operoIlon oI I
e1e,-y class and probably importers dtso-
The limitation Of the present law
enables those engaged in sucn attenpls 20
escape from both state and federal govern
mems the former having no authority over
Interstate commerce and the latter haN-
ing authority over nothing else
The italics are mine
And III the report OF ATTORNEY General
Harmon to Congress for the year 1896 (at
page 27), the Attorney General said:
The restricted scope of the provisions Of
this LAW, as they have been construed BY
the courts, especially m IN the case OF "a 9t'fi
: u, makes amendments necessary If any
effective action is expected from this de-
partment.
II thus appears that the tenor of the
Supreme Courts opinion in the knight
case was such as TO cause the Attorney
General then in office to express the
formal opinion that the law was not ap-
plicable TO any manufacturer or producer
Whatsoever and probably not TO Importers
and this without any qualification as 10
the extent or nature with reference 10 It's
Interstate character) OF the commerce IN
which such manufacturers, producers or
importers We're engaged. And It further
appears that as result OF that decision
the Attorney General reported that the
scope of the law thus construed was
thereby so restricted as to make amend
ments necessary if any effective action was
to be expected from the Department OF
Justice. The subsequent history Of the
Sherman law shows, it is true, that the
Attorney General was mistaken in both
Of these expressions of opinion, fnasmuch
as in numerous cases decided by the Su-
pre,ne Court since the knight case manu-
facturers and producers of many classes
have been held 20 be within the operation
of the Sherman law; and, in addition, most
effective action (as in the AddystOn pipe
case, the Danbury hatters case and the
like, has been taken either by the De
partment OF Justice or by private indtvi-
duals without any amendments to the
gress. Indeed, later decisions of the court
gave such a drastic construction to the
Sherman law that, as will be recalled
President Taft, at the beginning OF his
administration, expressed the belief that
the law ought 10 be amended.
Without celebrating the point in ques-
ton it seems clear that the phraseology
of the opinion OF the court in the knight
case was If not subtle a least so diff
fcult of exact ascertainment as to cause
the Attorney General of the United States
then In office 10 arrive at opinions In both
OF the particulars quoted above which the
later history of the sherman law showed
to have been erroneous opinions
1t would seem therefore that Mr.. Roose-
velt who is not practising lawyer. can
not justly be charged with an improper
criticism of the Supreme Court in having
spoken of It's decision in the Knight case
as "a highly technical subtety" when the
terms Of the opinion rendered by the court
in that case were such as to lead the AT
torney General OF the United States into
the mistaken views referred to.
1t may be added that ever since the
Knight decision was rendered it has been
a source OF uncertainty and difficulty in
similar cases with reference TO the proper
construction of the Sherman <aw. This
doubt seems to have persisted down 10 the
present time. as shown by the fact that in
the decision rendered in November. 1908,
by the Circuit Court CT the United States
in this circuit in the case of the United
States agt. the American Tobacco Conn
pany and Others ono OF the judges mem
ton and n4gatived -. the broad
construction OF the Knight case contended
Tor by the defendants. viz. that in no in