Evening star. [volume] (Washington, D.C.) 1854-1972, 1911-05-17
hat in any degree restraints interstai
rade.'
Meaning Clearly Set Forth.

make four, you would not make it any
palmer than those words make out the
| intention OF Congress.
What occurred nexto Look at this,
step by step. and shall get. directly. to
the part of this opinion that | say may
we'll alarm the country, notwithstanding
| the many good things that are in II,
magnificently said.
| In 1896, fifteen years ago. case was
in this court. known as the transmits
| souri, case. The railroads in that case
had come to make an agreement about
| rates. and the question was whether or
/ not that agreement was in violation OF
the antitrust law of 1890. That question
involved the construction to the scope
and meaning of that antitrust law. VINO
was here to instruct the court on that
| occasion? We hear good deal about
the lamp of reason We hear that the
time has come when we should hold up
the light of reason and look at this act.
as if the men of that day, freshly after
the passage of the act, were moving
about in darkness and did not know what
they were doing or saying.
Let us see who were the men in that
case who were moving about in dark
ness and did not have the light OF rea-
son by which to interpret the act. In the
first place. there was here in that case
we'll remember 1t. and said at the
time l had never heard in all my pro-
fessonal life more magn1hcent argu-
ment than was made in that case-who
court?
Legal Lights Argue.
First. the Attorney General of the
United States. William F. Guthrie of Ne"
York, John F. Dillon of New York,
James c. Carter. the leader of the Amer
lean bar of that day: Edward J. Phelps
of Vermont. Lloyd ". Bowers. as repre-
senting some of the railroads, one of the
greatest lawyers this country ever has
had, and John G.. Johnson of Phlladel-
phia was on one of the briefs
Those were the men who were before
this court at that time. and what was
their contention? That that act of Con-
sress did not embrace easonablet re-
straint of trade. but only unreasonable
restraint of trade. That was the ques-
ton they pressed upon this court.
What is the meaning Of that? asks
the court. Is it confined to a contract or
combination which is only unreasonable
restraint of trade or commerce: or does
ii include what the language of the act
plainly and in terms covers All con.
tracts of that nature, all contracts that
restrain trade at all among the states
are prohibited by this statute.
ut is now, with much application OF
argument. urged that this statute. In de-
claring Illegal every combination in the
form of trust or otherwise, or COM
spiracy in restraint of trade or commerce.
does not mean what the language used
therein plainly imports. but that 1t means
only to declare Illegal any such contract
which is unreasonable restraint OF trade
while leaving all others unaffected by
the provisions Of the act; that the com
mon law-we hear good deal ABOUT tnat
in this opinion-that the common law
meaning of the term contract In restraint
of trade includes only such contracts as
are In unreasonable restraint. OF trade,
and where that term is used in the led
eral statute 1t Is not intended to INCLUDE
k1ty hyrt nnly
which are in unreasonable restraint
thereof.
Tendency Of the Rich.
sIn the now not very short life that
I have passed in this capital and the
public service of the court. the most
alarming tendency of this day, In my
Judgment. so far as the safety and in
tegrity of our institutions are concerned,
is the tendency to judicial legislation. so
that when men having vast interests are
concerned and they cannot get the law
making power of the country which con-
trolls II to pass the legislation they de-
sire, the next thing they do is to raise
the question in some case, to get the
court TO SO construe the Constitution or
the statutes as to mean what they want
it to mean. That has not been our
practice.
prosecutions have been instituted. and
suppose men have been convicted and
sent to Jail under the antitrust act. upon
the construction that this court has given
to 1t.
THE court, in the opinion in this case.
says that this act of Congress means and
embraces only unreasonable restraint of
trade-in fiat contradiction to what this
court has said fifteen years ago that
Congress did not intend.
IF you will take the trouble to look
through the Federal Reporter you will
ind
court in this country has accepted these
original decisions as the final decision Of
this court as to the meaning of the act
of Congress.
Now we are asked to change the rule,
and to say:
1T may be true that in the words
of the statute, this contract. or this agree
ment is in restraint Of interstate trade
1t may be. But 1t is a lawful restraint
of trade.
Contrary to the decision Of this court
Il say contrary to the practice and
usage of this court
Contrary to Former Decisions.
this term a lawyer has been compelled to
take his seat, to stop the particular line
of argument that he was pursuing, be-
cause he was arguing against a former
decision of this court on that very ques-
ton He was wanting to break down
that former decision.
while this happens TO be a case of
an overshadowing combination of such
vast wealth and enormous power that 1t
may fairly be deemed a menace to the
general business interests of the coun-
try this difference ought not to induce
us to depart from a settled, wholesome
rule which. being faithfully observed.
will guard the integrity and secure the
safety of the nation and of its institu-
tons against the attacks of those who
would undermine all law and who would
for the sake of present advantages and
ends. he willing to undo the work of the
fathers.
why do say to undo the work OF the
fathers? If there is any feature in our
governmental system that is now among
the nations of the earth. 1t is that pro-
vision of the federal Constitution which
divides the departments of government
among three coordinate branches-legis-