The Bridgeport evening farmer., 1911-06-21


 contrary to the obiter dictum of Jus tice Bradley in the Carr case; ana therefore the Attorney General of the United States took the case to the Su- preme Court by means of two wrfts of error.
 cided by the Supreme Court, that tr1- bunal had to choose between depriv- ing Mr. Lee of eleven hundred acres of valuable land, and of the house which had been the home of his fath- CT and his mother, or atternatiyely, repudiating the obiter dictum of Jus tice Bradley in the Carr case. The majority of the justices of that court decided to repudiate that obiter dic- tum, and in harmony with the whole of his long judicial life, MT. Justice Harlan was one of that majority.
 The decision of the court in the Trans Missouri Freight case included five separate points of law the sec- ond of which was as follows:
 Section l. of the Sherman Law applies to all combinations in restraint of interstate on foreign trade or com merce, without exception or l1mlta- tion; and the prohibitions of that sec ton are not confined to "unreason- able restraints of such trade or com merce.
 The case depended upon this point, for the court below had decided that
 
 limited to 'unreasonab ble'N restraint of interstate or foreign trade or com merce, and that the restraint which the defendants had exercised upon interstate commerce, was not unrea- sonable. The decision of the Su- preme Court assumed that the court below had been right on that point of fact; but that decision held that the court below was wrong on that point of law. What the Supreme Court decided on that point of law was stated by Justice Peckham in the following perfectly clear and pos itive language.
 sIt is now, with much ampllfication of argument. urged that the statute in declaring illegal every combina tfon in the form of trust or otherwise, or conspiracy in restraint of trade or commerce. does not mean what the language used therein plainly imports but that it only means to declare 1lle- gal any such contract which Is in unreasonable restraint of trade. While leaving all others unaffected by the provisions of the act; that the com mon law meaning of the term con tract in restraint of trade" inciudes only such contracts as are in unrea- sonable restraint of trade, and when that term is used in the Federal stat ute. 4s not intended to include all contracts in restraint of trade. but only those which are in unreasonable restraint thereof. The term Is not of such limited signification.'
 Chief Justice White was then an associate justice of the Supreme Court, and he wrote and filed a dis senting opinion of more than ten thousand words, in which he took the ground that the decision of the court was wrong, because the restraint of trade or commerce which is prohibit ed by Section 1 of the Sherman Law, ought to be limited by implication to unreaSona ble restraint. The argument ton in his dissenting opinion in the Trans Missouri case is much longer, and much more complete and much less unconvincing, than his five thou sand word obiter dictum in the Stan dard Oil case. But the two writings the prohibitions of the Sherman Law ought to be limited by duplication to unreasonable violations of those prohibitions.
 The question of the presence or ab- sence of the "unreasonable" limita- Section 1 of the Sherman Law hay ing been decided by the Supreme Court in 1897, in favor of the absence of that limitation, and that decision having been reaffirmed by that tribu- nal in 1898, it was always treated by oVeTyDOQy dS Seltl0U. uIIll Cllel J uS- tice White delivered his obiter dicta in the Standard Oil case on May 15, 1911. That case was argued in the Supreme Court on January 12, 13. 16 and IT, 1911, by Attorney General Wickersham and Frank D. Kellogg, G. MiIburn, David T. Watson and John G. Johnson for the Standard Oil Company None of those five ar gunentS conta ned any mention of any question of the presence or absence of the Unreasonable" limitation up- on the Sherman Law; and no such question was mentioned by Chief Jus tice White or any other occupant of the Bench during any of those five arguments.
 The truth is, that the "unreason- able obiter dicta of Chief Justice White in the Standard Oil case has no foundation whatever, except in the dissenting opinion which he himself originated and inserted in the report Of the Trans-Missouri case in 1S91. It would be easy to analyze his Standard Oil obiter dicta and to point out their errors of statement and ar gument, when considered as compris- ing an essay upon the subject to which they relate But such a work is not germane to the present review; for the purpose of the present review is to show that that five thousand WuTQ WTIIiIiS, sWISIH0T It De dDStrdcC- ly logical or illogical is not repre- sentative of any law, and is not en- titled to be so regarded by any court
 All the Federal judges are bound by their oath of office to hereafter conform their decisions to what the Supreme Court decided in the Trans Missouri case and the Joint Traffic case; although in so doing, they must decline to be governed by the obiter dicta of Chief Justice White in the Standard Oil case. For each of the judges of the Supreme Court and each of the circuit judges and district judges of the United States. when he assumed the Jurisdiction and duties of his office. took the following oath
 CT do solemnly swear that l will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent On me as judge Cor justice) accord ing to the best of my abilities and understanding, agreeable to the Con stitution and laws of the United States; so help me God
 Now it is one of the laws of the United States that the decisions of the Supreme Court of the United States on questions of law. are bind ing on all the Federal judges in all cases. This law of the United States is not recorded in any statute, and it has never been announced in any decision of the United States Supreme Court. But is a law nevertheless as will be seen to result from the fol- lowing considerations:
 The Common law of England, which we inherited was carried into Eng I L L