Page:Earle, Liberty to Trade as Buttressed by National Law, 1909 75.jpg



If the theories herein advanced are correct, they should accord with and reconcile the cases, at least those in the Supreme Court.

The Knight case has been examined. It was decided "in the light" of such cases as Oregon vs. Winsor, and the Maxim case. When businesses were bought to add to prosperity, not to stifle competition; when the manifest purpose was only so to profit; when the trust was actually increasing product to fill the channels of trade; and before the real policy of buying productive agencies only to withdraw them from public service, although by those already having enormous capacity idle, was inaugurated by the trusts. The Chief Justice was right because he saw; Mr. Justice Harlan because he foresaw. But with "intent," "interest" and "tendency" in its legal sense added, the decision in the Securities case was a legal necessity of the Knight case, its legitimate offspring; though the misconduct of the trusts had even then only convinced a majority of the court of the extent of individual wrong-doing!

The Joint Traffic and Freight Association cases are likewise beyond criticism. The circuit courts and circuit courts of appeals had largely been misled by Mr. Justice Jackson's exceedingly able but very misleading opinion In re Greene. He there had said:

"The question of its (a contract's) reasonableness depends on the consideration whether it is more