THE SHERMAN LAW to justify or excuse the restraint; a restraint will be held reasonable when ancillary to a principal contract and necessary to protect the covenantee. The illegality imposed by the common law is merely negative, i.e., the courts will not enforce the contract; the illegality gives rise to no affirmative rights of disso lution or punishment by the Government, and to no affirmative redress for an individ ual injured by such a contract. This hasty glance at the common law will help to a more intelligent study of the change wrought in this branch of the law by the enactment and enforcement of the Federal Anti-Trust laws. THE STATUTES OF THE UNITED STATES. WHAT is A " RESTRAINT OF TRADE?" The existing anti-trust laws of the United States are embodied in the Sherman AntiTrust Act, passed July 2, 1890, Ch. 647 (26 Stat. L. 209), as supplemented with regard to importations into the United States, by the Act of August 27, 1894 Ch. 349 (28 Stat. L. 570). Proceedings have thus far been brought under the Act of 1890, and so it is with the construction of this legislaion that we will concern our selves. The act is entitled^- " An act to protect trade and commerce against unlawful re straints and .monopolies " and provides as follows:1 "Even' contract, combination in the form of trust or otherwise, or conspiracy, in re straint of trade or commerce among the several states, or with foreign nations, is hereby declared to be illegal . . . " . Section 3 contains the same provisions with regard to the trade of the territories and the District of Columbia with each other and with the states and with foreign nations, making the provisions of the Act co-exten1 Other sections of the Act will be quoted infra, as they are discussed.
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sive in application with the power of the Federal Government in this regard. The expression of the statute now to be considered is " every contract in restraint of trade or commerce." THE TEST OF REASONABLENESS. It has been the vigorous contention of those who seek to limit the application of this legislation that this expression of the statute is to be construed to apply only to those restraints obnoxious to the common law. The language of the Act, it is con tended, is to be construed with reference to the purpose announced in its title, to wit, the protection of trade against " unlaivful restraints "; every restraint was not unlaw ful by the common law, which was in force and in the minds of Congress at the time of the passage of the act, hence Congress intended to except lawful restraints from the operation of the act. At common law (supra), contracts in reasonable restraint of trade were lawful and enforceable, those in unreasonable restraint were 'not. By this construction the statute was sought to be dwarfed to inhibit those restraints only which were unreasonable. This question came before the Supreme Court in the United States v. Trans-Missouri Freight Association (166 U. S. 290), and the contention was distinctly negatived. The bill was to dissolve a combination among several railway companies for the maintenance of reasonable rates on hitherto competing lines, alleged to be void under the Act of 1890. The District Court had dis missed the bill, because, among other reasons, the contract was not in restraint of trade " in violation of the first section of the act of July 2, 1890 " (53 Fed. 452) because the restraint was not such as would injure the public, in other words, because it was a reasonable restraint of trade. Upon appeal by the complainant, the Supreme Court reversed this decision, holding — "that the language used in the title refers to and includes and was intended to include
