602
THE GREEN BAG
these two questions are concerned, are an entire and absolute blank, and for that reason, if for no other, I should under no circum stances recommend this legislation. I was not prepared to turn over an interstate business aggregating say $16,000,000,000 an nually, bound hand and foot to the tender mercies of combinations of labor on the one hand and the rapacity of combinations of capital on the other. I.t is to be further observed that a com bination or conspiracy tending to monopo lize trade is beyond all question illegal at common law, and a combination or con spiracy to restrain interstate trade is also a criminal conspiracy or combination under the provisions of the Sherman anti trust law. I have never yet seen or heard of a legal proposition that would justify the efforts to make a crime reasonable, which would be the effect of this amendment to the Sherman law if it were adopted, because it expressly provides that combinations and conspiracies in restraint of interstate trade, if reasonable, will be valid. A reasonable crime, in my judgment, is unthinkable, and I do not believe that it is sound to under take to predicate upon a conceded criminal condition the clement of reasonableness for the purpose of exempting such supposed condition from criminality. Mr. Andrew Carnegie suggested that railroad companies and steel manufacturers ought to be allowed to agree upon a "com mon rate." He couldn't think of "any other article of which this could be so clearly said " and in ninety-nine cases out of a hundred he said the object would "un doubtedly be to rob the community of its right to the benefits of free competition." Xf this is true we are safer as we are. The probably insurmountable practical difficulty in the whole matter is the inability to define by any specific and definite stand ard what would be a reasonable contract, combination, or conspiracy in restraint of trade. The inherent legal difficulty undoubtedly
is that the law never yet had undertaken to qualify as reasonable or unreasonable com binations and conspiracies tending to monop olize trade because they are unlawful per se. The case of Hopkins v. The United States (171 U. S. 592) shows in detail a large variety of business arrangements and agree ments that are not within the scope of the Sherman anti trust law, which I haven't time to quote. Under these definitions very many of the difficulties suggested by the parties promoting this legislation are eliminated as elements of controversy. It is interesting to note upon its practical phase that this matter is completely covered by Secretary Taft in his opinion in the Addyston pipe case, where he says, among other things: "The manifest danger in the administra tion of justice according to so shifting, vague, and indeterminate a standard would seem to be a strong reason against adopting it." And again: "We think the cases hereafter cited show that the common-law rule against restrain ing trade extends to all articles of merchan dise, and that the introduction of such a distinction only furnishes another oppor tunity for courts to give effect to the vary ing economical opinions of its individual members." Inasmuch as Mr. Secretary Taft is of the opinion that the alleged standard proposed to be introduced by this amendment is shifting, vague, and indeterminate, I think I may safely assume that he would be opposed to the enactment of any legislation of this character. Mr. Lord Justice Bowen, in Mogul S'eamship Co. v. McGregor (L. R. 23 Q. B. Div. 598) agrees with the Secretary as he said: "This seems to assume that . . . there is some natural standard of fairness or reason ableness (to be determined by the internal consciousness of judges and juries) beyond which competition ought not in law to go.
