Page:The Green Bag (1889–1914), Volume 23.pdf/408

 hampered exercise of almost every right, AN “ANTIQUATED" STATUTE? HE primary purpose of the Sher man act was

to preserve the

rights of free competition. That statute expressed the conviction of a people of intensely individualistic traditions that the avenues of trade must be kept open to all men on equal terms. But the act was so vaguely and uncertainly drawn as apparently to express more than

simply this.

Freedom of competition

necessarily implies freedom to crush a weak competitor. The act, however, was not consistently interpreted as throwing the doors wide open to free

competition: its protection was to be enjoyed only while a competitor con tinued weak and defenseless, and as soon as he grew powerful and successful

it was to be withdrawn.

Accordingly

the doubt soon sprang up in many minds whether this clumsily drawn statute was really designed to

in the interest of the public welfare. Consequently, when the Supreme Court, in the Standard Oil and Tobacco cases, said that the statute must be interpreted

in accordance with a rule of reason, it was narrowing the deﬁnition of indus trial freedom only in response to an impulse which law-givers have acted

upon from earliest times. The effect of these judgments has been to uphold freedom of competition only to the ex tent that normal business methods may be exercised; competition making use

of abnormal and improper methods is not within the protection of the act.

Freedom of competition thus requires competition to be fair and honest, and the result has been to substitute the notion of fair competition for that of free competition, the statute being in terpreted as prohibiting only violations of the rights of fair trade. Consequently,

the business which in the exercise of

perpetuate the régime of competitive

its freedom of contract has vanquished

business—whether, in fact, it was not

or absorbed competitors by fair and

intended to limit the very rights it osten

normal means is within the protection of the statute, even though it may have monopolized the industry.

sibly sought to protect.

The act ap

peared illogical and unenforcible, and it was earnestly argued that the courts should endeavor to construe it in the

light of reason so that it would no longer be hopelessly in conﬂict with the prin ciples under which modern business is carried on. Liberty is not synonymous with license, and history shows that there has been a tendency to restrict the un

We have the opinion of such acute and shrewd men as Mr. James M. Beck and Judge Gary that the Sherman law is an antiquated statute. As the real evils of unfair competition which it is designed to prevent, though closely asso ciated with monopoly, are not one and the same thing, it is undoubtedly un fortunate that it is so worded as appar