471
Index to Periodicals stagnation. Interpreted rationally in the sense intended by its originator, as declaratory of well-settled rules of common law, it will not annihilate business nor even perhaps very seri ously impair its development. It is, however, calculated to leave the whole question of ‘mo nopoly’ and ‘combinations in restraint of trade’ in an uncertain condition necessarily resulting in suits and prosecutions in which courts and jury must determine in every case whether there was restraint of trade or attempt to monopolize, and all this with results of very doubtful value to the community. The real difficulty lies in the fact that the nation has not as yet thought out any intelligent legislative programme which will adequately deal with new and largely untried economic conditions." Mr. Beck, dealing with "The Quandary,"
says: "The Sherman Law is an anachronism in the age of steam and electricity. Ajax defying the lightning has never impressed me with his wisdom. I much prefer the homelike but more practical spirit of a Franklin, who not only dis armed the lightning, but turned electricity to practical uses of great moment. The states manship of the future will consider a law, which, while forbidding in clear, positive and scientific
language, the abuses of combination, will yet recognize that the spirit of association is at once the most potent and noble manifestation of pres ent civilization. To this end, the Trust deci sions just announced will undoubtedly contribute in their clear recognition that the law is impotent to forbid all combinations which incidentally restrict competition, but the problem is, in its
last analysis, legislative in character, and what is imperatively needed is a saner public senti ment, which will compel Congress to conform
the laws of business to the irresistible and cen tri tal tendencies of steam and electricity."
competition in any industry, provided such agreement does not have the effect of unreason ably restricting competition or of operating as a direct restraint of trade; that in that connection it be empowered from time to time to determine the extent to which prices may be fixed or pro duction restricted, and particularly to prevent any interference by the parties to the agreement with outside competition.
"(5) That the Sherman Anti-trust Law be enforced against existing offenders, and that the execution of the details of the judgment be intrusted to the commission, subject wherever
necessary by reason of constitutional limitations to the approval by the Court and the adoption by the latter of the findings of the commission. “(6) That (a) the criminal section of the Anti-trust Law, (b) the provisions allowing an injunction against the creation or continuance of violations, and (c) the provisions for the sum
mary seizure and confiscation under section 6 of all property in interstate transit of any cor poration operating in violation of the statute be rigidly enforced." "The Standard Oil Decision: The Rule of Reason." By H. L. Wilgus. 9 Michigan Law Review 643 (June). "It is not quite clear therefore why the court should in a case not requiring it, and when the question was touched upon only incidently in the briefs — because it had been considered practically settled for fifteen years, suddenly reverse itself, and mount that ‘unruly horse’
public licy—which no court has ever ct success ully ridden and which will vary as it as heretofore in matters of this kind, on the uity side ‘with the length of the Chancellor's oot,’ and on the legal side from Hull's ‘per Dieu, if the plaintiff were here, he should go to prison
r. Untermyer, writing of "The Remedy,"
till he paid a fine to the King,’ because he took
says: "From the very beginning the execution of the law was intrusted to unfriendly hands and so it has continued to this day. That is the key to all our present difficulties and to the many worse ones that are to come. . . . In so far as the criminal sections of the statute have been invoked it has savored of rsecution. Courts and juries have rightly re used to lend them selves to the perpetration of such manifest injustice. . . . "The proposed remedy may be summarized as follows: — “(1) The compulsory federal incorporation of all corporations engaged in trade or commerce between the states or with foreign countries.
a bond from a dyer not to use his dyer's craft in town for half a year (Dier's case (1415), Y. B.
"(2) The creation of a commission similar in
its powers over business corporations to those now possessed by the Interstate Commerce Commission over railroads and the utilization in that connection, so far as possible, of the
present Commerce Court. "(3) That this commission pass upon the ri ht of every applicant for a federal charter, and t at where violations of law exist which would pre vent the grantin of such a charter such viola tions should be rst removed.
2 H. V. f. 5, pl. 26) to the House of Lords’ con
clusion that a combination to en ross all the tea trade between Shanghai and urope, to the exclusion of the plaintiff, was not unlawful so as to ive the plaintiff an action for damages (Mogul teamshifi Co. v. McGregor, A. C. 25); the court here,
owever, was careful to point
out that while this was a contract in restraint of trade, it was not unlawful. so as to give a third party an action for damages; they did not hold that it was a contract in ‘reasonable restraint of trade,’ so that one part to it would have had an action against anot er for damages for refusing to abide by it; they probably would have refused to enforce it so, because it was in unrea sonable restraint of trade (Nordenfelt v. Maxim, etc., Co., A. C. 535). And it is safe to say that had the case arisen before 1844, the court would hardly have held under the laisscl faire rule of reason so fashionable at the time that the English statutes did not appl as they before had been interpreted. It would have been left to Parliament, as it was, to abrogate the statutes
and establish a new policy.
"(4) That the commission have power to
“However, if hereafter the common law rule
authorize and approve agreements that will be enforcible in the courts in the form of pools. kartels, or syndicate arrangements for regulating
of reason is to apply, and though this will lead to a sea of uncertainty, if one can judge by the
conflict in the views of the members 0
the
