Page:The Green Bag (1889–1914), Volume 20.pdf/774

 THE SHERMAN ANTI-TRUST LAW clearly the cases that Mr. Justice Brewer had in mind in his concurring opinion in the Northern Securities case (193 U. S. 361) where he said in referring to his concurrence in the Joint Traffic Association case (171 U. S. 505): "This act as appears from its title was leveled only at 'unlawful restraints and monopolies. ' Congress did not intend to reach and destroy those minor contracts in partial restraint of trade which the long course of decisions at common law had affirmed were reasonable and ought to be upheld." The only "long course of decisions at common law" affirming contracts in re straint of trade to be reasonable are the contracts where individuals were contract ing themselves out of trade — where the contract to remain out of trade was ancillary to the main contract. Mr. Justice Holmes also had this dis tinction very clearly in mind in his dissent ing opinion in that case when he says (p. 403) : "The words hit two classes of cases and only two —• contracts in restraint of trade and combinations or conspiracies in restraint of trade — and we have to consider what these respectively are. Contracts in re straint of trade are dealt with and defined by the common law. They are contracts with a stranger to the contractor's business, although in some cases carrying on a similar one, which wholly or partially restrict the freedom of the contractor in carrying on that business as otherwise he would. The objec tion of the common law to them was pri marily on the contractor's own account. The notion of monopoly did not come in unless the contract covered the whole of England. "There was no objection to such combi nations merely as in restraint of trade or otherwise unless they amounted to a mo nopoly. Contracts in restraint of trade, I repeat, were contracts with strangers to the contractor's business, and the 'trade restrained was the contractor's own."

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Mr. Justice Holmes proceeds: "Combinations or conspiracies in restraint of trade, on the other hand, were combina tions to keep strangers to the agreement out of the business. The objection to them was not an objection to their effect upon the parties making the contract, the members of the combination or firm, but an objection to their intended effect upon strangers to the firm and their supposed consequent effect upon the public at large. In other words, they were regarded as contrary to public policy because they monopolized or attempted to monopolize some portion of the trade or commerce of the realm." The remarks of Mr. Justice Holmes very clearly suggest the profound and under lying distinction between the two con ditions; as to the contracts that restricted the freedom of the contractor in carrying out that business as otherwise he would, and combinations and conspiracies in re straint of trade, the distinction is profound and fundamental. Upon the first the ele ment of reasonableness or unreasonableness can be properly predicated; upon the second, which is made a crime under the Sherman anti -trust law, the element of reasonableness or unreasonableness cannot with propriety be predicated. Bearing in mind these legal suggestions with reference to the rationale of the Sher man anti trust law, I will now enter upon the discussion of what is known as the Hepburn amendment to the Sherman anti trust law. In the discussion of some of the salient and vital features of the proposed legis lation I shall confine myself to the sub stitute which, according to their view, represented clearly and adequately the views entertained by the gentlemen who collaborated in the preparation of the measure. I cannot quote the amendment, as it is too long, but will, if it is thought desirable, furnish it as an appendix. I will take up first features which relate to labor organizations. Section 3 of the