The Washington times., 1911-05-25

could be regarded as reasonable at
common law or not"
Other Rulings.
AS further indicating the unbroken
precedents of the Supreme Court that
all contracts in restraint of trade were
illegal. Harlan quoted several other de-
cisions, and included a lengthy ex-
tract from an adverse report on plan
TO amend the Sherman law, presented in
the Senate in 1909. '
After what has been adjudged as to
the meaning and scope of the act" he
concluded, land in view of the usages
of this court when attorneys for liti-
CANT have attempted to reopen ques-
tons that have been deliberately decid-
ed, confess to no little surprise as to
what has occurred in the present case
The court says that the previous cases
cannot by any possible conception be
treated as authoritative, without the
GERTRUDE that reason was resorted to
for the purpose of deciding them And
its opinion is full of limitations that
this court proceeded in those cases. so
far as the present question is concerned,
without being guided by the rule Of
reason or the light of reason
Now this court is asked to do that
which it has distinctly declared it
could not constitutionally do. 1t has,
by mere Interpretation, modified the act
Of Congress and deprived 1t of prac-
teal value as defensive measure
against the evils to be remedied.'
Grows Sarcastic.
The justice then referred scathingly to
irreconctlable differences between the
Standard Oil and the other decisions,
and declared that the only frank"
answer to the question Of why they did
e 49,
rule Of reason was not applied IN the
previous decisions. He quoted previous
decisions to show that such a proceed
ing was, in the language of the opinions,
judicial legislation"
Summing up, Harlan declared, that
the court should have Immediately in
structed attorneys, who argued the
reasonable" construction in the Stand
ard Oil case, that such a construction
was not open to argument, having been
established by previous decisions, and
that they would have to go to Congress
for any change
But" he declared. my brethren, in
their wisdom, have deemed it best to
pursue a different course. They have
now said to those who condemn our
former decisions. and who object TO all
legislative prohibitions of contracts in
restraint Of commerce. You may now
restrain such commerce, provided you
are reasonable about it,. The DISPOSE
ton of the case, according to the views
Of the defendants. will, quiet and give
rest to the business Of the country
Fears Results.
''On the contrary, l have a strong
conviction that it will throw the bust
ness of the country into confusion and
invite widely extended and harassing
litigation. the injurious effects OF which
will be felt for many years to come.
81 said at the outset that the action
of the court in this case might well
alarm thoughtful men who revere the
Constitution. I meant by this that
many things are intimated and said
in the courts opinion which will not
be regarded otherwise than as sane
tioning an invasion by the judiciary
of the constitutional domain of Con-
gress-an attempt by Interpretation
to soften or modify what some regard
as harsh public policy. The courts
have nothing to do with the wisdom
or policy of an act of Congress. They
have no function to declare a public
policy nor to amend legislative en-
actments. Nevertheless, If l do not
misapprehend its opinion. the court
has now read into the act of Con-
gress words which are not to be found
there, and has thereby done that
which 1t adjudged in 1895 and 1898
could not be done without violating
the Constitution.
Harmful Tendency.
"After many years of public service
et the National Capital. and after a
Somewhat close observation of the con-
duct Of public affair. I am impelled to
say that there is abroad in our land a
most harmful tendency TO bring about
the amending of constitutions and legis-
lative enactments by means alone Of
judicial construction.
THE supreme law of the land, which
Is binding alike upon all, upon Presi-
dents, Congresses, the courts, and the
people-gives to Congress, and to Con-
gress alone, authority to regulate inter-
state commerce. and when Congress for
bids any restraint of such commerce,
in any form, all must obey its mandate
To overreach the action OF Congress
merely by judicial construction, that is,
by indirection, is blow at the integrity
of our governmental system, and in the
end will prove most dangerous to all
II dissent from that part of the judg-
ment which directs the modification of
the decree, as we'll as from those parts
of the opinion, which, in effect, assert
authority to insert words in the anti
trust act which Congress did not put
there, and which, being inserted, Con-
gress is made to declare as part OF
The public policy of this country, what