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 The Standard Oil Decision

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I

able right thereto," wholly apart “from the want of power in an individual to voluntarily and unreasonably restrain his right to carry on his trade or business and outside of the want of right to restrain the free course of trade." And in this country the law "followed the line of the law of England,” leading "as a matter of public policy to the prohibi

tion treating as illegal all contracts or acts which were unreasonably restric

guided by the established law and the duty to enforce the public policy under lying the statute. And the implication seems to be that whether the established law relating to restraints of trade be reasonable or unreasonable, or the public policy underlying the statute be reasonable or unreasonable, are irrele

vant matters, as the application of the test is guided by the law and by'the public policy sought to be enforced. That this inference is properly to be

tive of competitive conditions." In the light of the law as it then existed, the Sherman act was drawn,evidencing

drawn seems deducible from the dictum that in deciding the previous cases

the intent "to protect [interstate or

arising under the Sherman act, the

foreign] commerce from being restrained by methods, whether old or new, which would constitute an interference that is an undue restraint.” The Court thus

Court was not at liberty to substitute

recognized the reasonableness test as

the one to be applied in construing the Sherman act. Nevertheless, proceeding with the observation that some standard of

judgment was required for the purpose of determining what constitutes a viola tion of the act, the Court said: "It

becomes obvious that the criterion to be resorted to in any given case for the

purpose of ascertaining whether viola tions of the section have been committed is the rule of the reason guided by the established law and by the plain duty to enforce the prohibition of the act and thus the public policy which its restrictions were obviously enacted to subserve." Furthermore, the statute

was expressly designed "to leave it to be determined by the light of reason guided by the principles of law and the duty to apply and enforce the public policy embodied in the statute, in every

given case, whether any particular act or contract was within the contempla

tion of the statute." Thus it is evident that the test applied by the Court is that of reasonableness

“a judicial appreciation of what the

law ought to be for the plain judicial duty of enforcing the law as it was made." It is likewise deducible from the remark that “in every case where it is claimed that an act or acts are in violation of the statute the rule of reason in the light of the principles of law and the public policy which the act embodies, must be made." It seems to the writer that the Court thus subjected the reasonableness test to a very real qualiﬁcation, for it pursued a line of thought which tends to stereotype the conception of legal reasonableness in the form which it

possessed at the time of the passage of the act.

Otherwise why need the Court

have argued that the reasonableness test and that of direct or indirect restraint come to the same thing, and that the latter test is sound solely because in harmony with the principle adopted? The reasonableness test of a combina tion alleged to be in restraint of trade thus being qualiﬁed, if this view of the decision is sound, by the state of the law not as it may be today but as it was at the time of the passage of the statute, it remains to be seen whether