V,
'" The Commoner.
MAT-26, 1S11
5
Eye-openers on Epoch Maying Decision
News item in Washington (D. C.) Herald, on
occasion of supreme court's Standard Oil trust
decision: Among tho Interested listeners to the
opinion was Senator Bailey, of Texas, who is
generally conceded to be one of the ablest
lawyers in the senate. He declared that tho
opinion was all that the government could havo
hoped for, and that it was the proper construc
tion of the Sherman law.
Senator LaFollette, of Wisconsin, who was
also in tho court room, was not so well satisfied.
On leaving the court room Senator La Follette
declared that the American people had been
"handed a lemon," and that the court had
amend the Sherman law by writing into it tho
word "unreasonable" as qualifying restraints
of trade that contravene the Sherman law.-
Washington dispatch to Philadelphia North
American: Senator Culberson, of Texas, de
clared his absolute agreement with tho views
xpressed by Justice Harlan.
GOOD AND BAD TRUSTS
Washington dispatch to Philadelphia North
American: So far as the decision is against
the Standard Oil company it is unanimous. But
the assumption of power by the court to in
terpret the law otherwise than it is written
meets with tho strong disapproval of Justice
Harlan, whose dissenting opinion is one of tho
most forceful presentations that even he has
accomplished -in the course of his vigorous
career'.
The court has obviously attempted to point
out to the combinations how they may continue
to do business without violating the law, as the
law is viewed by the court, and in doing this,
the court assumes the right to determine what
are reasonable and what are unreasonable" re
straints of trade, and, in effect, what are good
and what are bad trusts. Inasmuch as the trusts
themselves have contended that the courts
should be given this power, and the administra
tion, represented by Attorney General Wicker
sham, has urged amendment of the anti-trust
law so as to confer this power upon the courts,
the public has been perfectly justified in assum
ing that no such power existed.
If there is concern, therefore, when the court
assumes the power without waiting for any
authorization by legislation, the feeling will be
intensified by the strong utterances of Justice
Harlan, in criticism of the court for assuming
authority which he says it does not rightfully
possess. He declared that the reasoning of the
court was in effect legislation, which belongs to
congress and not to the courts.
There can be no question that the decision
has started a controversy which bids fair to
'become as Intense and as far-reaching as the
light for and against special privilege.
It is a controversy in which the courts and
their power will bo involved, and in which the
demand for legislation to define clearly tho
restraints of trade which are illegal and tho
processes of monopolization which must not
be permitted is certain to be strong and In
sistent. What is likely to cause most astonishment
to the general public is the fact that while all
the representatives of great combinations havo
been insisting that the anti-trust law should
be amended, the necessity for such amendments
as have been urged is absolutely removed by
the court's opinion of what the law really
means and what are the limits of its effect.
No more dramatic scene was ever witnessed
in the United States supreme court than was
presented when Justice Harlan arraigned his
associates of the great tribunal and charged
them with overstepping the proper limits of
their authority in doing this.
It was with a voice that sometimes trembled,
so intense were the feelings of the great jurist,
that he told the court the most dangerous ten
dency of the times is that which makes itself
manifest in tho assumption of power by the
courts to read into a statute what does not
exist in the law itself, or to take from a law
that which had been carefully placed there by
the legislative branch.
He insisted that the safety of the govern
ment depends upon maintenance, unimpaired, of
the powers conferred upon each co-ordinate
branch of the government by legislation, and
regarded us a visible breaking down of the
system an effort by the courts to encroach upon
the functions and prerogatives of the law-making
branch.
From the public view-point, this opinion Of
Justice Harlan will servo as a rallying ground
from which to make a fight for dofinito legisla
tion to control great interstate corporations in
tho interest of tho public.
Tho Harlan decision has already gained
the approval of public-spirited men in both
houses of congress, which means that there is
general dissent outside tho court from tho ma
jority opinion concerning the court's wido power
of Interpretation. Fortunatoly, in this great
decision by a great court there is no constitu
tional question involved, and if tho decision Is,
as Is feared, one which takeB tho heart out of
tho anti-trust law, then the law can bo strength
ened by legislation beyond the power of tho
court to seriously affect it.
In the controversy already started there is, of
course, the beginning of a great referendum of
this ruling by the supremo court to tho peoplo
of the United States. If it bo found upon care
ful examination that the court has weakened the
law itself, then thero will be effort to strengthen
it, just as there would havo been immediato
effort to frame a new and effective law against
monopoly had tho court decided tho legislative
statute to bo inoperative.
NOT "UNDUE" VIOLATORS
Chicago dispatch via United Press: Indicted
packers have been given one week in which to
file a motion for a rehearing, on tho ground
that tho supreme court's ruling in the Standard
Oil case overrules Judge Carpenter.
The matter hinges on the question what Is
unreasonable and what reasonable restraint of
trade.
The fact that tho supremo court read the
word "unreasonable" into the Sherman anti
trust law gives the packers ground for asking
that their cases be reopened.
The packers declare that the supreme court's
Standard Oil decision completely covers their
case and grants them immunity from prose
cution. Attorneys for the packers interpret tho
highest court's ruling to mean that combina
tions In restraint of trade are not in theirf
selves unlawful. It must be shown, they con
tended, that the restraint was unreasonable, and
they declare that no such showing has been
made in the case of tho indicted millionaire
packers.
The packers further declare that the Sher
man anti-trust law Is so hazy that they do
not know whether they are engaged in "un
reasonable" restraint of trade, and that this
very haziness nullifies tho criminal section of
the law.
The packers demurred to the indictment on
this very ground that has been covered by tho
supreme court's ruling, they alleged, and their
demurrer was overruled a few days ago by
Judge Carpenter. They now demand a rehear
ing on arguments on the demurrer, that they
may cite the supreme court's decision as a
precedent for escaping prosecution.
THEY ALL LIKE IT
Associated Press dispatch: New York, May
16. Andrew Carnegie said today that tho
Standard Oil decision was one of the most im
portant events of the times. He declared that
it was a good decision and would cause no dis
turbance of commerce or capital.
"We wilV he continued, "establish a new
commercial system. We will have a new com
mercial life. We will have a court of commerce
which will be to Industry what tho supreme
court is generally to our nation and laws. It
must be seen that combinations being allowed,,
regulation must follow. We have discarded a
worn out system and adopted a new system,
adaptable to our times. I am a happy man at
the reading of that decision."
W. C. Brown, president of the New York Cen
tral lines, said of the oil case decision: "It
emancipates the commercial Interests of the
country while at the same time it fully safe
guards every interest which needs - protection
from the law.
"The Industries of the United States will now
have a way open to them to compete success
fully in the markets of the world. The court has
transformed the Sherman anti-trust law from
an all but impossible into a practicable and
constructive measure. If the tariff question
were also out of tho way ,the commercial out
look would be entirely clear."
George Gould said: "Now the public should
be satisfied to permit the courts to decide what
way bo considered reasonable or unreasonable
business combination. Ono such court decision
will establish definitely what is a reasonable
combination and business interests will doubt
less bo only too willing to conform to tho law
when its limitations havo been definitely estab
lished. Elimination of this uncertainty would
prove a stimulus to business."
WILL HASTEN THE RECALL
Washington dispatch via United Press: De
claring that the interpretation of tho Sherman
anti-trust law by tho supremo court, in tho de
cision dissolving tho Standard Oil company, ap
poars to "givo tho law to tho peoplo and im
munity to tho trusts," Representative Henry
George, jr., (dom N. Y.), son of tho famous
singlo taxer, issuod tho following statement:
"I regard tho decision as in much tho same
category with a docision of tho samo court just
prior to tho civil war, in tho caso of tho slavo,
Dred Scott. That decision has boon properly
described as giving 'the law to tho north and
tho nigger to tho south.' Tho supremo court
now appears to givo tho law to tho peoplo and
immunity to tho trusts.
"Tho supremo court now, through a majority
of its members, arrogates to itself tho function
of legislating, as shown by tho biting sarcasm of
Justice Harlan in his dissenting opinion.
"Tho Standard Oil company can now go
through tho form of reorganizing; and thon, on
the plea that It is only reasonably In restraint
of trade, continue its course of piracy.
"Tho 400 trust combinations similarly in re
straint of trado and similarly hanging on this
interpretation, can now by a shuffle, do what
tho Standard Oil company can do make them
selves appear to be 'reasonably' in restrant of
trado, and so escape tho immediato indignation
of tho people.
"But they will answer beforo long, neverthe
less. For either tho law Itself will bo quickly
amended or else the peoplo will Beok to destroy
tho privileges enjoyed by tho trusts.
"I am confident also that this docision will so
widely weaken confidence in courts as to quicken
tho movement for tho recall of judges."
THE PRIVILEGE OF GREATNESS
-Dubuque (Iowa) Telegraph-Herald: "Great
men change their minds, fools novor."
If there be nothing elso on which to base a
claim of greatness of the supremo court of tho
United States, thero Is the evidence in proof
that It changes its mind.
Judge Carpenter, who last week ordered the
cases of tho packers to trial, heard the claim
of the packers' attorney that tho Indictments
should 'not stand because the packers were
guilty of no "unreasonable" restraint of trade.
But this point did not impress Judge Carpenter.
He knew the court decisions 100 of them
upholding the validity of tho Sherman act, and
so he knew that tho supreme court of tho United
States in 1897, when it 'reversed a decision of
tho circuit court of appeals of tho 'Eighth dis
trict, stated, in tho course of its decision:
"Section 1 of the Sherman law applies to all
combinations in restraint of Interstate or foreign
trado or commerce, without exception or limi
tation; and the prohibitions of that section are
not confined to unreasonable restraints of such
trade or commerce."
Judge Carpenter did not know, of course, that
the supremo court of the United States, In a few
days, would reverse itself in the Standard Oil
case and hold that the restraint had to be "un
reasonable" to bo illegal. In other words, Judge
Carpenter did not know that the language of the
brief of the attorneys for the beef trust was
to greet him in a decision of the highest court
In the land.
EVEN THE STANDARD LIKES IT
Special dispatch to Chicago Record-Herald:
New York, May 16. At 26 Broadway, Standard
Oil headquarters, officials of the company today
seemed to bcu in anything but a' gloomy mood
over the supreme court decision. Their attitude
showed clearly that they had expected such an
opinion for some time and were ready for it.
Two points are clear. First, that there will
he no contumacy by the company it proposes
to obey the decree; and, second, that it will be
some time before any plans of reorganization are
given out. The company has Insisted throughout
that no pfsms had been formulated in advance
of the decree, and the statement made today
by Mortimer F. Elliott, general solicitor for
the company, takes the samo attitude.
"Having only before us the press reports ot
Chief Justice White's oral opinion and the re
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