mould and model the exercise of its powers as its own wisdom and the public interests should require."

With reference to political and economic questions the Supreme Court of the United States has been more progressive than even the State courts. With the single exception of Lochner v. New York, 198 U. S. 45. in which case, by a bare majority, the court held that the act limiting the hours for bakers was unconstitutional, that court has consistently refused to interfere with acts of the Legislature because they differed with the Legislature in its views of public policy or because they held views inconsistent with the propriety of the legislation in question. Mr. Justice Holmes, in dissenting in the case last referred to, said that case was decided upon an economic theory which a large part of the country did not entertain.

It is a noticeable fact that there is no provision made in the Constitution of the United States for a direct appeal from Congress to the Supreme Court of the United States, and therefore in indirect cases must the court decide the validity of the acts of Congress and give its judicial construction of such statutes, often necessarily adopting and announcing new rules applicable to the particular state of facts. It is the imperative duty of the court in giving such construction to follow the "rule of reason" and give a reasonable meaning to the statutes, otherwise the statutes might become instruments of injustice and ruin to the community they were intended to benefit.

Considered in this light, much of the misunderstanding and much of the intentional or unintentional misrepresentation of the recent interpretation by the United States Supreme Court in the Standard Oil and Tobacco cases, of the Sherman Anti-Trust Act, and much of the unjust and unfounded criticism of the opinions in those cases, as an alleged departure from and repudiation of previous decisions of that court, is shown to be unjustified. A brief reference to the early decisions of the United States Supreme Court in reference to the Sherman Act will clearly demonstrate this proposition. Before doing so, it is well to bear in mind what is said by the late Senator Hoar, who was one of the framers of the Sherman AntiTrust law, as to what was intended by its authors:

"It was expected that the court, in administering that law, would confine its operation to cases which are contrary to the policy of the law, treating the words 'agreements in restraint of trade' as having a technical meaning, such as they are supposed to have in England. The Supreme Court of the United States went in this particular farther than was expected. In one case it held that the bill comprehended every scheme that might be devised to restrain trade or commerce among the several states or with foreign nations.' From this opinion several of the court dissented. It has not been carried to its full extent since, and I think will never be held to prohibit the lawful and harmless combinations which have been permitted in this country and in England without complaint, like contracts of partnership, which are usually considered harmless. We thought it was best to use this general phrase which, as we thought, had an accepted and well-known meaning in the English law, and then after it had been construed by the court, and a body of decisions had grown up under the law, Congress would be able to make

such further amendments as might be found by experience necessary."

Within two or three years after the enactment of this anti-trust statute legal battles took place over the meaning and construction thereof. In the Trans-Missouri case the majority opinion was delivered by Mr. Justice Peckham. Although all that was really decided by the court in that case was that a contract to regulate rates made between railroad companies carrying on a public service business as common carriers, exercising public franchises, was against public policy as in restraint of trade and came within the prohibition of the Sherman law irrespective of the question of whether the rates prescribed were reasonable or unreasonable or whether the agreement would operate beneficially or injuriously, the court went further and announced the proposition that the Sherman law applied to all combinations in restraint of interstate or foreign trade or commerce without exception or limitation, and that the prohibitions of that statute are not confined to unreasonable restraints of such trade or commerce.

Notwithstanding this assertion, Mr. Justice Peckham in the Joint Traffic case in a very emphatic statement carefully warned against the very construction which was placed upon this decision by the profession and by some of the lower courts and even by the Supreme Court itself in subsequent cases. Thus, in the opinion of Mr. Justice Peckham as delivered in the Joint Traffic case (171 U. S. 566), he says, "that the act of Congress must have a reasonable construction or else there would scarcely be an agreement or contract among business men that could not be said to have indirectly or remotely some bearing upon interstate commerce and possibly to restrain it." He points out that it would be a most violent assumption to assume that the effect of the decision in the TransMissouri case was to render illegal most business contracts or combinations, however indispensable and necessary they may be, because they might restrain trade in some remote and indirect degree. Such assumption was not called for or justified by the decision mentioned or by any other decision of the Supreme Court. A formidable list of contracts and combinations which were at the same time indispensable, and yet have the effect of somewhat restraining trade and commerce, was suggested, but of it the Supreme Court said that the formation of corporations for business or manufacturing purposes had never been regarded in the nature of a contract in restraint of trade or commerce; nor had a contract of partnership; that it also might be difficult to show that the appointment by two or more producers of the same person to sell their goods on commissions was a matter in any degree in restraint of trade; that it had never been claimed that a lease or purchase by a farmer, manufacturer or merchant of an additional farm, manufactory, or shop, or the withdrawal from business of any farmer, merchant or manufacturer, restrained commerce or trade within any legal definition of that term; and it was said that the sale of the good will of a business, with the accompanying agreement not to engage in similar business, was not a contract within the meaning of the Anti-Trust Act, but was collateral to the main contract

of sale and was entered into for the purpose of enhancing the price at which the vendor sold his business.

In view of the carefully measured statements of Mr. Justice Peckham in the Trans-Missouri case and in the Joint Traffic case, and in view of his express statement that "the act is to have a reasonable construction," it is difficult to understand the criticism that has been made upon the language of Mr. Chief Justice White in the recent decisions in the Standard Oil and Tobacco cases, to the effect that the statute is to be interpreted by the "light of reason."

Furthermore, in the case of the Northern Securities Company, 193 U. S. 197, which, as will be remembered, was a case dealing with the question of restraining trade and commerce between competing railroads, by the device of a holding company, holding a majority of the stock of the two competing companies, the court divided five to four on the question of the illegality of such a holding company, but Mr. Justice Brewer took occasion to say, in concurring with the majority, that he wished to modify his concurrence in the opinion of Mr. Justice Peckham in the Trans-Missouri case, so far as that opinion stated that "every" contract or combination in restraint of trade was within the statute, whether "reasonable or unreasonable." As Mr. Justice Brewer was one of the five justices whose concurrence made up the majority necessary to a decision in the Trans-Missouri case, his expression of opinion in the Northern Securities case, as I have before had occasion to point out, made the question of reasonableness or unreasonableness the opinion of a minority instead of a majority of the court and deprived it of any binding authority in subsequent cases.

Mr. Justice Brewer said (193 U. S. 361):

"Instead of holding that the Anti-Trust Act included all contracts, reasonable or unreasonable, in restraint of interstate trade, the ruling should have been that the contracts there presented were unreasonable restraints of interstate trade, and as such within the scope of the Act. That Act, as appears from its title, was leveled at only 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 fit to be upheld. The purpose rather was to place a statutory prohibition with prescribed penalties and remedies upon those contracts which were in direct restraint of trade, unreasonable and against public policy."

In view of these emphatic statements of Mr. Justice Brewer, one of the majority in the Trans-Missouri case, in which he expressly repudiates the "reasonable or unreasonable" dictum in that case, it is difficult to understand how any one can assert that that dictum is binding in subsequent cases on the principle of stare decisis, or that to call that dictum in question is sacrilege.

After the Northern Securities case the Hon. Simeon E. Baldwin, the present Governor of Connecticut, at the time Chief Justice of that state, in 1904, in his work on "American Railroad Law," said:

"The phrase 'agreements in restraint of trade' was adopted by the framers of the Sherman Act, supposing that it would

be given the same construction accepted by the English courts. Mr. Justice Brewer, by whose concurrence in the judgment the decision in the Northern Securities Co. case was reached, in his opinion approves such a construction as will make the act applicable only to unreasonable contracts and combinations which are in direct restraint of trade. It seems probable that this will ultimately be the prevailing view." And such it has.

In each and all the cases which the courts had before them they held that the contracts or combinations in question were clearly in "unreasonable" or "undue" restraint of trade and would have been illegal at common law. The recent decisions of the Supreme Court in the Standard Oil case and in the Tobacco case are in consonance with and not in repudiation of the previous decisions of the court so far as they distinguish between "reasonable" and "unreasonable" contracts.

Just what did the Supreme Court hold in the Standard Oil and Tobacco cases? And just how would the law read if these opinions were set aside by legislation?

In the Standard Oil opinion Mr. Chief Justice White, after setting forth at great length what was the common law in reference to restraint of trade before the making of the act, says that the statute "evidenced the intent not to restrain the right to make and enforce contracts, whether resulting from combination or otherwise, which did not unduly restrain interstate or foreign commerce, but to protect that commerce from being restrained by methods, whether old or new, which would constitute an interference-that is, an undue restraint."

And again, the Chief Justice, referring to the second section of the act, which prohibits monopolizing, says:

"The ambiguity, if any, is involved in determining what is intended by monopolize. But this ambiguity is readily dispelled in the light of the previous history of the law of restraint of trade to which we have referred and the indication which it gives of the practical evolution by which monopoly and the acts which produce the same result as monopoly, that is, an undue restraint of the course of trade, all came to be spoken of as, and to be indeed synonymous with, restraint of trade.

"The purpose of the statute was to prevent undue restraint of every kind or nature. The fact must not be overlooked that injury to the public by the prevention of an undue restraint on, or the monopolization of trade or commerce, is the foundation upon which the prohibitions of the statute rest, and moreover, that one of the fundamental purposes of the statute is to protect, not to destroy, rights of property." The distinguished lawyer, Mr. Wm. B. Hornblower, in his recent address before the American Bar Association, after calling attention to the fact that Mr. Chief Justice White in delivering the opinion of the court does not use the word "unreasonable" in defining the class of contracts protected by the statute, but substitutes for that word the words "undue" or "unduly," says:

"The Chief Justice would have been justified by the previous decisions of the courts in using the term 'unreasonable.' The test, however, as actually laid down by the Chief Jus tice in his opinions in those cases and concurred in by all

the justices except Mr. Justice Harlan, is that contracts are within the statute which unduly restrain trade,"

"The Chief Justice applied the 'rule of reason' to the statute and holds that the statute is to have a 'reasonable construction,' but in so doing, he simply follows the decision of the court in the Trans-Missouri case and quotes the exact language of Mr. Justice Peckham in his opinion in that case.

"Surely the most extreme champion of literal construction of this Act would hardly venture to amend the Act so as to read: "This Act shall not have a reasonable constructionshall not be subject to the 'rule of reason' and shall not be interpreted by the 'light of reason.'

What other conclusion in the "light of reason" could have been reached by the court? Otherwise the statute must have become an instrument of injustice and a menace to the community it was intended to benefit. Applied to many conditions it would be unreasonable, and without reason as to those relations, the most ultraradical of the supporters of the literal interpretation would not contend it was the law.

The result of this reasonable construction of the Sherman Act has already been apparent to even the most casual observer. These decisions of the Supreme Court are not a cloak for "big business." The law as thus interpreted by the Supreme Court is sufficiently effective to bring about the dissolution of the biggest trusts, and other trusts and combinations are making strenuous efforts to resolve themselves into their component parts so as not to be within the ban of the law. The activity of the Department of Justice following upon these decisions of the United States Supreme Court is already meeting with results, and it may be safely predicted that all combinations which tend to create monopolies will be destroyed and that hereafter individuals and corporations engaging in large enterprises will obey the law rather than attempt to evade it. We will also find that honest men may conform to modern business conditions and that a premium is not to be put upon public immorality.

A great deal of popular discontent with the administration of the law is due largely to the tardiness of courts and judges in the transaction of business, calling for a change in judicial procedure not only with a view to reducing the expense of litigation, but facilitating the dispatch of business and final decisions in both civil and criminal cases. The criminal law is of course the greatest cause of popular discontent. We appear to have forgotten an axiom of the law that "It is not the severity of the punishment but the certainty of it that keeps the wrongdoer in check." It may be said that the criminal law has broken down and has become an "unworkable machine." There are too many technicalities in the criminal law; the vicious doctrine of presumed prejudice, the recognition by courts of appeal of unimportant and trivial errors, an overzealousness on the part of appellate courts to protect individual rights, are among the things that are chiefly responsible for the criticisms that have been so universal against the administration of criminal law as it is now practiced and judicially enforced.

Recently there has been adopted in the State of California an amendment to the Constitution, proposed by the Legislature at the suggestion of the Hon. Wm. J. Hunsaker, one of the Vice-Presidents