The sun. [volume] (New York [N.Y.]) 1833-1916, 1911-05-16
lies through the English common law

up to and including the development of
the legal attitude toward monopojistic
combinations in the United States.
1t will be- found that as modern con-
dtions arose" said the Chief Justice. the
trend OF leg islat ion and judicial decision
came more and more to adapt the recog-
nized restrictions TO new manifestat ions
of conduct or of dealing which it was
thought justified the inference of intent
TO do the wrongs which it had been the
purpose to prevent from the beginning :"
He quoted the National Cotton Oil case,
arising in Texas and decided by the Su-
preme Courts, and the shawnee Compress
case Of a later date. and added
Without going into detail and but very
briefly surveying the whole field. II may
be with accuracy said that the dread of
enhancement Of prices and of other
wrongs which il was thought would flow
from the undue limitations on competitive
conditions caused by contracts or other
acts Of individuals or corporations led
as a matter Of public policy To the pro-
hibition or treating IA illegal all contracts
or acis which wers unreasonably re-
striCtiNe of competitiNe conditions. either
from the nature or character of the con
tract or act or whore the surrounding
circumstances were such aS to justify
the conclusion that they had not been
entered into or performed with the leCiti-
mate purposes Of reasonably forwarding
personal interest and developing trade,
but on the contrary were of such char
Artar as to give rise to the Inference or
presumption that they had been entered
into or done with the intent TO do wrong
10 the general public and to limit the right
Of individuals thus restraining the free
-f l,..v l..
about the evils, such as enhancement Of
prices. which we're considered To be against
public policy
1t In equally true to say that the survey
of the legislation 10 this country on this
subject from the beginning will show. de-
pending "a IL did upon the economic con-
captions which obtained AT the time when
the legislation was adopted or judicial de-
cieion was rendered. that contracts or
acts were at one time deemed TO be of such
a character as to justify the inference Of
wrongful intent which we're AT anot her
period thou ght not tn be of that character
But this again, as We have seen. simply
followed the line Of development of the
Law Of England.
INTERPRETING THE Law.
Tho Chief Justice then took in detail
the Interpretations OF the first and second
sections Of the Sherman law. These
are the vital sections OF the law and the
OneV VHdt IlAV6 CduSeu 80 U1uCn uDCor-
tainty in the business world as TO their
construction. The court said:
Let US consider the language OF the
first and second sections. guided by tho
principle that where words are employed
In q statute which had at the time well
known meaning at common law or in the
law Of this country they are presumed
to have been used in that sense unless
the context compels to the contrary.
.Ae TO the first section the words TO
he interpreted are. Every contract or
combination in the form of trust or other
wise or conspiracy in restraint of trade
or commerce is hereby declared to be
illegal As there is no room for dis
pute that the statute was intended TO
formulate rule for the regulation of
interstate and foreign commerce, the
question, is. What was the rule which it
IN view OF the common law and the
law in this country al to restraint OF
trade. which We have reviewed. and the
Illuminating effect which that history
must have under the rule to which We
have referred. we think it results:
"A-That the context manifests that
the statute was drawn in the light of the
existing practical conception OF the law
Of restraint OF trade, because il groups
as within that class not only contracts
which were in restraint OF trade in the
subjective sense but all contracts or
acts which Theoretically were attempted
TO monopolize. yet which in practice
had come to be considered as in restraint
OF trade In . broad sense.
REsTRAINT OF INTERSTATE TRADE.
"B-That in view Of the many new
forns Of contracts and combinations
which were being evolved from existing
economic conditions il was deemed essen
tial by an all mbracing enumeration TO
make sure that no form Of contract or
combination by which an undue restraint
Of interstate or foreign commerce was
brought about could save such restraint
from condemnation. The statute under
this view evidenced the intent not 10 re-
strain the right to make and enforce
contracts. whether resulting from COM
binAtion or otherwise, which did not
unduly restrain interstate or foreign COM
merce. but to protect the commerce from
being restrained by methods. whether
old or new. which would constitute an
intsrferenoe that is an undue restraint.
'C-And as the contracts or acts en-
braoed In the provision were not ex-
preesly defined. since the enumeration
addressed itself simply 10 classes Of acts.
thoee classes being broad enough 10
embrace every conceivable cont ract or
combination which could be made con-
corning trade or commerce or the subjects
Of such commerce. and thus caused any
act done by any Of the enumerated
methods anywhere in the whole field of
nuJnhn hCtlVlty 10 De Illegal II IN restraint
Of trade. it inevitably follows that the
provision necessarily called for the exer-
cise Of judgment which required that
some standard should be resorted TO for
tho purpose Of determining whether
the prohibitions contained in the statute
had or had not in any given case been
violated. Thus not specifying but in
dubitAbly contemplating and requiring
a standard. it follows that il was intended
that the standard OF reason which had
been applied at the common law and In
this country in dealing with subjects OF
the character embraced by the statute
was intended to be the measure used for
the purpose Of determining whether in n
given case a particular act had or had not
brought about the wrong against which
the statute provided.
PROHIBITIONS OF THE SECOND SECTION
and consideration of the text of the
second section serves to establish that II
WA intended to supplement the first and
to make sure that by no possible g,iise
could the purpose embodied in the first
section be frustrated or syaded The
prohibitions OF the second section en-
brace every person who shall monopo-
lize or attempt to monOpolize any part
of the trade or commerce among the
several States. or with foreign nations
by reference TO the terms of the SEC
tion 8 It is certain that the word person
clearly implies = corporation as well as
an individual.
The commerce. referred to by the