Omaha daily bee., 1911-09-19
TAFT CALLS ON
COURT CRITICS
TO MAKE GOOD
Continued from First Pase)

the expressions used In II to define its oh.
ject and what IL was proposed therein "a
denounce as unlawful were not new, but
| they were sufficiently broad and indsfi-
mite to require judicial construction to
settle their meaning. Congress was deal
! ing with subject matter in respect 10
/ which It may be assumed that the legls-
lators themselves were not rlca- as 10
the exact limitations OF tho meaning =:
the words, in the statue they were pass
ing. They knew there was an evil which
they hoped TO restrain by the enactment
| Of this law; and they relied upon the
| courts in their construCuoh Of the law
to hedge about its operation such re-
striction as would prevent the statute
from being so wide in its application as
to involve absurdity mi the impractical
bic. The early decisions under the law
can not be said to have been fortunate.
The decision in what was known as the
Sugar trust case-the Knight case-.was
really a retrograde step and one which
/ seemed to limit much the operation of
| the statue. II encouraged the Organi2a-
ton OF combinations which the same
| court has since found violate the statute.
| The case could not he effe ,tively pre-
| sentod to the court becats, the record
had not been properly made up. and the
| questions arising wee trea.o1 n the
/ opinion in such q way as to give the
impression that the operation OF the law
| would be most restricted, because 81 the
limits OF federal juriJJ ction. Indeed
some law officers OF the government lid
not hesitate to say that unl4- this de
cision there was lftle hope Of reaching
the evil aimed AZ through federal acrion
II has required twcrty y3lrs OF ltiRaticr
to make the statue clea- But now il
is clear,
Now. I would like to ask Mr. Bryan
or any other publicists and jurists who
have been denouncing this opinion as
the surrender OF the rights Of the people
and a usurpation OF judicial power to tel
the public what particular contract oil
restraint Of interstate trade he would
condemn which would not be condemned
within this definition Of the court. The
4 difficulty with the literal construction
OF the statute is that it would denounct
a great many minor or incidental re.
straints Of trade, which made the stat
ute ridiculous and weakened its effect
and lent support to the criticisms anc
contemptuous treatment Of the statute
by those who were opposed to its pas.
sage and enforcement.
Il repeat again. that in spite of all the
denunciations that we have heard of tbs
decisions of the supreme court in the
Standard oil and tobacco cases, there Is
not one who has criticised them that car
formulate a contract in restraint of trade
that ought to come within the statute
that does no come within It under tn,
decision OF the supreme court.
II is said that the supreme court has
read something into the statute that wal
not there before; that it has inserted the
word reasonable before restraints o.
trade when the same court had said tina
this could not be properly done, because
congress had evidently not intended Il
include such limiting word in the stat
ute. This is not fair to the court.
Is true that the court, in the early day
Of the construction of the statute, ha4
said that it could not limit the statut
in effect by excluding from Its operation
what was deemed reasonable at common
law. But as other cases arose it fount
II necessary to make exceptions TO thu
literal operation of the words restrain
of trade and 1t did so by excepting wha
was minor. or incidental, or indirect, and
Including only those cases where the chic
object of the contract or combination
was the restraint. In doing so the cour
said that II must give the statute a rea
sonable construction and not one lead
ling to absurd or ridiculous results. II
the last two cases the court did no
change the substance Of the reasoning
% ~ AAcfefanc ~
only treated the exceptions previousl!
termed Incidental and indirect as ex
cluded from the operation of the statut
in the light of reason, 1. e., in conform
lity TO the evil sought to be reached
Now, in what way has this injured tn,
public veal? What combinations or ar
arrangements can escape under this inter
probation that any sensible man woult
wish to have condemned? Did the cour
not condemn the Standard Oil company
the father OF all trusts, in the history o
which every form Of criminal illegalit!
was practiced? Did 1t not on the othe
hand, condemn the Tobacco trust, Of mucl
later origin and framed under the advic
of cunning counsel for the very purpos
of evading the condemnation of the stat
ute and at the same time securing an
enjoying the monopoly the trainers Of tn
statute intended to prevent and punish?
Let me renew again the invitation q
: any OF the vociferous critics OF the de
! cision OF the supreme court to use thei
legal imaginations and state the fact
OF a case not condemned within the rul
i OF construction put upon the statute b,
the supreme court, but included within
; their construction Of II, which reasona
BILE men would think II wise or proper t
make criminal.
! The court has met the issue and tn
1 queries presented by the doubters an
the scoffers. It has indicated the ma
Ijesty of the law, has illustrated the won
: derful elasticity and adaptability of rem
edy by injunction in equity. and has a
the same time manifested q due regar
! for the welfare of the innocent bushes
, men and the community at large. who, 4
: cataclysm caused by the confisoatiol
OF such enormous capital as is involves
I in these combinations and a suspension
Of the legitimate part Of their business
would be buried with them In com
mon ruin.
1.-THE court has exhibited courag
; in facing the necessary results, in en-
, forcing the statute that, instead o
prompting an attack on Il, ought 10 max
. every American proud that we have sucl
a tribunal II is now enforcing its de
cree against the Standard Oil compan!
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Ill CHANGING HER FACE