New-York tribune., 1911-04-22
THE SHERMAN LAW
A Useful Review Of lts
History.
HISTORY OF THE SHERMAN LAW or
THE UNITED STATES OF AMEhiCAa' a.
Ry Albert II. Walker. svo. PIP. KILL S-V'
Tha EGuity Press.

The Equity Press.
| Mr.. Walker does well to preface MS
ANALYSIS OF the various decisions con-
STRUNG the Sherman antitrust law
with several chapters In which he de-
scribes the debates In Congress whiie
the proposed law was under discussion.
One could wish for more extracts from
these debates, because they were excel
lent Illustrations Of what has been called
referendum to the courts In legisia-
tion"-the practice Of legislating by the
use Of vague and uncertain language ana
passing over to the courts the task Oh
giving meaning to the laws.
In the Senate, Senator Hoar. who was
the real craftsman Of the law. attempted
TO show that the language OF the law
had a definite meaning. saying: The
great thing that this bill does, except
affording a remedy, is to extend the
common law principles which protected
fair competition in trade in old times
in England to international and inter-
state commerce In the United states.
Senator Edmunds. chairman Of the Judi
ciary Committee. which reported the bill.
seems to have had suspicion OF the real
difficulty when he said: I'VE should
make its definitions out Of terms tnat
were we'll known to the law already, and
would leave II to the courts In the first
instance TO say how they could carry IL
from It's definitions as applicable to each
particular case az 1t might arise
In the House, Mr.. Culberson, father
of the present Senator from Texas, VINO
had the bill in charge In the House, can
didly remarked: Now, just what con-
tracts. what combinations In the form OF
trusts or what conspiracies Will be IN
restraint Of the trade CT commerce meh-
toned in the bill will not be known uh-
III the courts have construed and inter-
rreted this provision. wish 10
he understood, Mr.. Speaker. as having
stated in the outset that do not Know
nor can any one know. just what COLI
tracts will be embraced by this section
Of the bill until the courts determine.
Mr. Wilson. better known TO TINS gen
Grafton as the author Of the wilson tali't
biIl attempted to resist the movement
which he described as an impulse 10 pass
the bill "hlindy and promptly WITHOUT
deliberate discussion or any genelai VI
Intelligent understanding Of It's provi-
slons. simply because something must DC
done to meet the demand OF the peopio
for some legislation against trusts uhu
I,,,o combinations" ard he continued as
follows:
Sir its first section proposes 70 puiiihbn ,ba
III beavv fines and imprisonment tne
,,aLin~ Of certain contracts, coilpiho 49,, 49,
and conspiracies: and the gehtieiiiahui hi. and
Texas, in charge OF tne We pa'ii have upon this
| door frankly informs the House t,at t yud I'D
what these contracts, coihpliiI,,o,,1 ,,,o,,,, nm
conspiracies will be cannot ne hiiS"ii, S ir,er-
tu tba courts have construed anu Iltsd
.as VI tnI mis- section. Yet we are TO consider
and pass this bill after an hour OF csectinr %
discuesion only: a bill seriously d,.,.r,.
the business and prosperity ol tns i;bnrtis. !.
and what is mere, the rights and llpertlss
| of the people Was ever criminal law nlaSo -; .
in this fashion before! ana ,, Wno, aav na,, 70
IL nenitentiary In order that the courts
nav interpret and define What aIe AZ ny .
crimes which we punish but do not oe"ie :
subsequently to be Speaker or the House
this reply: Gentlemen say they 90 not
know how the courts will construe the
act II is for us to enact the law ana
to. tho courts TO construe and enforce II.
II we do our duty II is reasonable TO pe-
leve that the coordinate branch or the
Government will do its duty" What toi-
lowed is precisely what might have been
expected.
The Harrison administration carried
through five prosecutions of which four
were failures. and began two others
which were continued under the Cleve-
land administration. Eleven cases were
prosecuted by the government during the
cleveland administration, Of which four
were carried to successful conclusion
oeains. men alleged to be participants In
labor strikes: two failed and three were
continued under the Mckinley admin
;etration. The remaining One, destined
n he the landmark in the Interpretation
of the law, was the trans missouri
Freight Association case, decided by the
| Supreme Court in 1897, In which the
sherman antitrust law was held to pro-
bibit all contracts In restraint of trade,
whether reasonable or unreasonable.
This Interpretation was confirmed the
next wear by the decision Of the Supreme
Court in the Joint Traffic Association
( case. The significance Of this inter-
nretation. to which attention Is now par
ticularly directed, is that it read into the
law n meaning entirely different from
what Senator Hoar intended and
vouched for; and this Interpretation, be
Il noted. was reached by the court in
spite of the able argument OF Senator
Edmunds, who, as one Of the counsel in
the case, experienced the chagrln of see
ing the me. aing, which he had imputed
! to law while it was under discussion In
the Senate, rejected by the Supreme
/ Court.
During the Mckinley administration
there were six governmental prosecu-
tions, two lasting over from the Cleve-
| land administration and one continuing
under the Roosevelt administration.
| During the Roosevelt administration the
principle foreshadowed in the Traffic AS
| sociation cases was carried TO its logical
conclusion In the Northern Securities
case. and In the prosecution begun