Evening journal., 1914-02-24
FROM THE New YORK SUN

restrains Il from any violations OF the
law, its status as an offending COM
bnation is irrevocably liked as against
every individual litigant. and an that
remains for the individual litigant 70
do is TO prove his injury and then re-
cover his freehold damage
The law gives no reciprocal advan-
tage 60 the defendant when the gov
ernmcnt loses It's suit. After long
and burdensome litigation a court may
find that the governments charges are
not sustained and that the defendant
is innocent of any violation Of The Sher-
,n,an law. The desemlanl, however,
must again prove this fact IN any suit
Tor damages by an individual and cannot
offer in evidence the decree in the gov
ernment's suit. Ii. however. the govern
ment has prevailed in its contention.
the mouth of the defendant is forever
closed and It's right to ask jury TO de-
termine the fact Of such violation IS
denied.
This strips a business combination
Of two invaluable and basic consti-
tutional rights.
The Constitution forbids the TAX
ing of property without que process
OF law, and there can be no due pro-
cess of law unless there be the equal
protection of the laws. To give to an
Individual plaintiff in a Sherman law
suit the right to put in evidence an
adverse decree and to withhold the
same right from the defendant when
the decree is I'm his favor is such a
palpable denial Of the equal prO.ec-
ton Of the laws that even in this
day Of extreme laxity, I'm enforcing
the Constitution Il Is almost incon-
ceivable that any court would sustain
50 unfair a law.
A suit by the Government against q
combination proceeds by bill In
equity, and the court finds the facts
without jury trial. A suit by an in
dividual against q corporation under
| the treble damage clause Is a conf
mon law action for damages. and as
1 TO it the plaintiff has a constitutional
right to trial by a jury. The sub
stantive issue Is whether the defend
ant has violated the Sherman law,
and only incidentally and secondar-
/ lily whether such violation has done
the individual any appreciable harm.
/ When. therefore, the proposed
amendment makes the decree in an
/ equity suit conclusive OF the fact OF
/ liability Ia a common law proceeding
/ il has effectually deprived the de-
! fendant of that trial by jury which
1.-The Constitution Ordains as OF right
/ These constitutional objections may
not seriously weigh with Congress
! for unfortunately Congress too often
L prgpnpdc rpou fha fhaprw fhnt ff rho
/ laws which Il passes are unconsti-
: tutional they will be SO declared by
! the courts, and thus no harm will
I be done. On the other hand, the
courts when charged with the duty
OF invalidating a statue on account Ol
its uncOnstltutionality resolve all
/ doubts in favor of sustaining the ac-
I tion Of the legislative branch OF the
Government, and as a result of this
double shifting of responsibility
many statutes of doubtful consttu-
+ tiOnality are in the first instance
passed by Congress, and in the sec
ond recognized by the judiciary. on'"
because their violation Of the Const
Tuition. however probable, is not al
together free from possible doubt. As
n result our constitutional system if
gradually but surely sustaining pro-
round and destructive notifications
until II has come to pass that the late
E Chief Justice Of the United States in
a notable dissenting opinion express
ed the sad lament that the form was
outlasting the substance of the faith.
! Assuming, however. that Congress
4 can thus deny business corporations
the right Of trial by jury when