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The Green Bag

nopoly.” The Court did not discuss in detail the legal aspect of these various

to feel secure from promcution for viola tions of the act.

acts, but rested its conclusion on the

broad ground that a power dangerous

It is important, however, to consider whether this decision can fairly be

to the public welfare had been built up by other than normal methods of busi

interpreted as setting up the principle that the Sherman act prohibits only

ness competition. The ruling on the facts is evidently not less important

unreasonable restraints of trade. A careful study of the opinion shows that

than that on the statute itself. It is really a ruling on the law. The seem

it cannot receive that interpretation

ingly liberal attitude taken by the Court in saying that the prohibitions of the statute must be construed in the light of reason, tends to suggest that many monopolistic transactions may be lawful, but in the latter half

of the opinion the considerations offered on the merits of the actual controversy

have the effect of narrowing any such implied broad deﬁnition of lawful mo nopoly. The unlawful acts of the appellant not being particularized, the basis of the opinion is that its general conduct has been unlawful. If such methods as those employed by the Standard Oil Company, in building up its vast power, are unlawfully monopo

listic purely with reference to their general character, without any examina tion of the essential nature of unfair trade and of the rights of free compe tition, something is subtracted from the liberal construction given to the statute. If the former part of the opinion aﬁ'ords any ground for supposing that a reason able monoply may be lawful, the second part makes it clear that such a reason

able monoply must meet certain further tests to escape the ban of the statute. While the Court has provided a loophole by means of which certain great corpora tions may escape prosecution, still the loophole is not so large as might appear at ﬁrst glance. There will continue to exist a great many instances in which powerful corporations come perilously near the danger line and will be unable

unqualiﬁedly. To read into the statute the word.

"unreasonable” would seem to have a different effect from that actually given by this decision. It would give the Court the power to determine whether given facts constitute an “unreasonable" restraint of trade or not. In reaching such a determination, the Court would be governed solely by its own views

as to public policy and social justice. If it be contended that the Supreme Court has formulated certain rules

relating to the test of reasonableness, by which it is bound, the obvious reply is that it may overrule its own decisions

relating to such a test, in its effort to reach a fair and accurate interpretation of the statute, and that there can be no

ﬁxed rule of reasonableness which the Court, in its effort to be guided by the just demands of sound public policy, is not at liberty to cast aside whenever a better one may be substituted.

But the decision took a somewhat different position. It did hold that the statute was to be read in the light of reason. The term "undue restraint" is freely used, and it is evident from the

context that it is employed in a sense synonymous

straint.”

with

“unreasonable

re

The English case of Mogul

Steamship Co. v. McGregor (A. C. 25) is referred to as showing reﬂexly the exact

state of the law in England at the time the Sherman act was adopted, and as

indicating the scope of the freedom to contract and “to exercise every reason