THE CONFLICTING OPINIONS IN THE MERGER CASE. Вт BRUCE WYMAN, Of the Faculty t>f Law in Harvard University. NOW that the opinions in the great case of the Northern Securities Company, et al. v. the United States, are published, it would seem that it ought to be possible at last to come to some definite conclusions as to the power of the Federal Government to deal with the combination in restraint of trade. But the truth of that most important matter seems to elude us still; we understand more about it, to be sure, but we do not know many things that we would wish. Of these uncertainties that thus remain, many com plain; yet, upon the whole it seems well that the development of these extensive functions should be slow. So fundamental a problem to society as that of the trusts should not be • dealt with except upon the cautioue basis of experimentation. Nor is the division in the Court to be de plored; it is as necessary for the proper solu tion of these basal questions that there should be an effective minority as that there should be an efficient majority. As in all of the great issues of life, there is some truth upon each side; a settlement, therefore, can not come about except by some compromise in the end, when each understands the other. Therefore, due weight must be given in any discussion, not only to the majority opin ions of Mr. Justice Harían and Mr. Justice Brewer, but also to the minority opinions of Mr. Justice White and Mr. Justice Holmes. For what is of permanent interest in these opinions is not so much the dispute over the particular facts as the argument upon the general principles. It is to that end that the extracts which follow have been made. The argument of Mr. Justice Harían is thoroughgoing, as may be seen from this quo tation: "The means employed in respect of
the combinations forbidden by the Anti-Trust Act, and which Congress deemed germane to the end to be accomplished, was to prescribe as a rule for interstate and International com merce, (not for domestic commerce,) that it should not be vexed by combinations, con spiracies or monopolies which restrain com merce by destroying or restricting competi tion. We say that Congress has prescribed such a rule, because in all the prior cases in this Court the Anti-Trust Act has been con strued as forbidding any combination, which by its necessary operation destroys or re stricts free competition among those en gaged in interstate commerce: in other words, that to destroy or restrict free com petition in interstate commerce was to re strain such commerce. Now, can this Court say that such a rule is prohibited by the Con stitution or is not one that Congress could appropriately prescribe when exerting its power under the commerce clause of the Constitution? Whether the free operationof the normal laws of competition is a wise and wholesome rule for trade and commerce in an economic question which this Court need not consider or determine. Undoubt edly, there are those who think that the gen eral business interests and prosperity of the country will be best promoted if the rule of competition is not applied. But there are others who believe that such a rule is more necessary in these days of enormous wealth than it ever was in any former period of our history. Be all this as it may, Congress has. in effect, recognized the rule of free compe tition by declaring illegal every combination or conspiracy in restraint of interstate and international commerce. As in the judgment
