The Washington times., 1911-05-17
WHEN THE COURT is CON-
PEELED TO MAKE LAW.


was passed there was long, animated,
and able debate over the language that
ought to be used. The general purpose
to be served was reasonably clear in
most minds. But how to frame a
statute that would reach those COM
binations it was desirable to strike,
and miss those not desired to be in
jured, was a difficult problem.
What was needed, in short, was a
delimitation of that exact measure of
restraint of trade which was to be
esteemed as undesirable. It became a
matter of definition; all w-making is
largely a matter of definition, and
nothing is more difficult.
1t was urged that any corporation
for profit designs in some wise to re-
strain trade. Sweepingly to objurgate
all would be most unfortunate policy.
Therefore, the demand that a stand
ard be set up, to determine the meas
ure of restraint which should be
allowed
Congress found it difficult and dan
gerous to attempt such thing. When
enumeration is undertaken in a stat
ute, then construction assumes that
the enumeration is complete, that as
written down it represents the full
purpose of the legislative mind, and if
some item that ought to have been
included is afterward found to be
omitted, the omission leaves a loop
hole through which some offender may
escape. Congress adjudged enumera-
tion in such a law to be utterly i'm
possible, and, therefore, broadly de-
nounced "every" restraint of trade.
The court has now undertaken to ap-
ply the light of reason to that sweep
ing condemnation, and there is vio-
lent criticism. Yet it may safely be
assumed that if the court had taken
the act literally, and given it the
broadest application that its inclusive
language could warrant, there would
have been vastly more protest. In the
end, there must be discrimination, and
it must be based on the measure of
restraint. The court might say that
a minor restraint, involving no serious
social results, was not a restraint.
That, however, would settle nothing,
for the next case that came along
would present a different measure of
restraint, and the court would have to
decide whether this measure was un-
safe. Thus in every case judgment
must be applied.
In the Standard Oil case, the court
has undertaken to fill in the omission
of Congress. 1t points out that when
words are used in a law, which al
ready have an established meaning in
common law or earlier statutes, they
must be construed in the new law as
having that same meaning. Giving
these previously established meanings
to the words here used, the court
says:
AS the contracts or acts ''' were
not expressly defined ." and thus
caused any act 80 in the whole field
of human activity to be illegal II in re-
straint of trade, 1t inevitably follows
that the provision necessarily called for
the exercise Of Judgment which re-
quired that some standard be resorted
to for the purpose of determining
whether the prohibitions had or had
not in any given case been violated
That is, Congress having failed to
make specific enumeration, the court
must use it's judgment. To make a
detailed enumeration would manifestly
be arrogation of legislative authority,
and, therefore, the court takes the
course of determining each particular
case on its own merits. 1t arrogates
the least possible measure of legislative
authority; it is compelled to assume
some measure of authority, because
the omission of Congress makes it ab-
solutely unavoidable.