The sun. [volume] (New York [N.Y.]) 1833-1916, 1914-02-23

tage to the defendant when the Gov
eminent loses its suit. After q 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
Sherman law. The defendant, how
ever. must again prove this fact In any
suit for damages by an individual and
cannot offer in evidence the decree In
the Governments suit. II, however,
the Government has prevailed in Its
contention, the mouth Of the defendant
Is forever closed and its right to ask
jury to determine the fact Of such
violation Is denied.
This strips business combinatio
Of two invaluable and basic constitu-
tional rights.
The Constitution forbids the tax.
ing Of property without due process
Of law, and there can be no due proc.
ess 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 In his favor Is such
palpable denial Of the equal protec-
ton Of the laws" that even In this day
Of extreme laxlty In enforcing the
Constitution It Is almost inconceivable
that any court would sustain 20 un-
fair a law.
A suit by the Government against a
combination proceeds by bill in equity,
and the court finds the facts without
a Jury trial. A suit by an individual
against corporation under the treble
damage clause In common law ac-
ton for damages, and as to n the
plaintiff has constitutional right to
trial by jury. The substantive issue
Is whether the defendant has violated
the Sherman law, and only incidentally
and secondarily 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 In common law proceeding
1t has effectually deprived the defend
ant Of that trial by jury which the
Constitution ordains as of right.
These constitutional objections may
not seriously weigh with Congress, for
unfortunately Congress too often pro-
ceeds upon the theory that II the
laws which 1t passes are unconstitu-
tiOnal they will be 30 declared by
the courts. and thus no harm will
be done ON the other hand. the
courts when charged with the duty
Of invalldatlng a statute on account
Of Its unconstitutiOnality resolve ali
doubts In favor Of sustaining the action
Of the legislative branch Of the Gov
eminent, and as result Of this double
shifting OF responsibility many stat
utes of doubtful constitutlonality are
In the first instance passed by Con-
gress, and in the second recognized
by the judiciary, only because their
violation of the Constitution. however
probable. Is not altogether free from
possible doubt As a result our con-
stitutional system Is gradually but
surely sustaining profound and de-
structlve notifications, until 1t has
come to pass that the late Chief Jus.
tlce Of the United States In a notable
dissenting opinion expressed the sad
lament that the form was outlasting
the substance of the faith.
Assuming. however, that Congress
can thus deny business corporations the
right Of trial by jury when threatened
by cOnfiscatOry damages, and that in
suit between 1t and an injured citi.
zen right can be given to the plaintiff
which Is withheld from the defendant
there are other grave reasons Of pub
lie policy which would make the pro-
posed amendment mischievous In the
extreme.
After two decades Of agitation the
country has profound need Of Industrial
peace. The war between the Gov
eminent and business has lasted long
enough, and while It has done some
good It has unquestionably retarded
the industrial development Of our
country. That the country is weary
Of this unnatural antagonim was
shown by the enthusiastic reception
which It gave the notable letter of
President WILSON to the Attorney Cen
eral at the time Of the settlement of
the Telephone suit, In which the Presi.