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JTJIiT' 14, 1911"
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. should not be inserted in the law. No ono will
accuse our senate of being UNREASONABLY
hostile to. big business interests even today, and
it was still less hostile two years ago. The
changes that have occurred during the last two
years have very considerably increased the
number of senators who are opposed to the
trusts and opposed to the control of industry
by them. Yet even two years ago the judiciary
committee of that body expressed its disapproval
so vehemently that the attempt to change the
law was 'abandoned.
The report submitted by the judiciary com
mittee at that time ought to bo read by every
one who desires to acquaint himself with the
subject under discussion. It pointed out tho
absurdity of using as precedents cases which
dealt with contracts between individuals and
which affected themselves only. Even one not
learned In the law can understand that a con
tract should be construed more strictly against
those who make it than against those who are
not parties to it. A contract by which one
agrees not to engage in the same business under
certain conditions is to some extent a transfer
of the good will of the businqss. An entirely
different rule ought to apply where two or more
parties enter into a contract to drive a third
party out of business. Justice Harlan quotes
as follows from the report filed by Senator Nel
son, chairman of the judiciary committee: "The
anti-trust act makes it a criminal offense to
violate the law, and provides a punishment both
by fine and imprisonment. To Inject into tho
act the question of whether an agreement or
combination is reasonable or unreasonable
would render the act as a criminal or penal
statute INDEFINITE AND UNCERTAIN, and
hence, to that extent, UTTERLY NUGATORY
AND VOID, and would practically amount to
A REPEAL OF THAT PART OF THE ACT.
And while the same technical objection does not
. apply to civil prosecutions, the injection of the
rule, of reasonableness or unreasonableness
would lead to the greatest Variableness and un
certainty in the enforcement of the law. The
defense of reasonable restraint would bo made
in every case and there would be as many
different rules of reasonableness as cases, courts
. and juries. What one court or Jury might deem
unreasonable another court of jury might deem
reasonable. A court or jury in Ohio might find
a given agreement or combination reasonable,
while a court and jury in Wisconsin might find
the same agreement and combination unreason-
able. In the case of the People v. Sheldon,
139 N. Y. 264, Chief Justice Andrews remarks:
'If agreements and combinations to prevent com
petition in prices are or may be hurtful to trade,
the only sure remedy is to prohibit all agreements
of that character. If the validity of such an
agreement was made to depend upon actual
proof of public prejudice or injury, it would be
, very difficult jn any case to establish the invali-
, dity, although the moral evidence might be very
convincing.' To amend the anti-trust act, as
"suggested by this bill, would be to entirely
' EMASCULATE it, and for all practical purposes
render it nugatory as a remedial statute.
Criminal proecutions would not lie and civil
remedies would labor under the greatest doubt
and uncertainty. The act as it exists is clear,
comprehensive, certain and highly remedial. It
practically covers the field of federal jurisdic-
. tion, and is in every respect a model law. TO
DESTROY OR UNDERMINE IT, AT THE
PRESENT JUNCTURE WHEN COMBINA
TIONS ARE ON THE INCREASE, AND" AP
PEAR TO BE AS OBLIVIOUS AS EVER OF
THE RIGHTS OF THE PUBLIC, WOULD BE
A CALAMITY." I beg to submit that there is
no escape fom the logic of the language used.
A light that would lead one to ignore the argu
ments, submitted by Senator Nelson and quoted
with approval by Justice Harlan, is not the
light of reason. A rule that will divide crimes
into reasonable crimes and unreasonable ones
is not a rule of reason, no matter how many
judges may concur in its enunciation. The anti
trust law as recently construed by the court is
no longer a criminal law and as a civil statute
it is badly crippled. No wonder the corpora-
' tions that are now being prosecuted under the
law have immediately enlarged their defense
so as to deny the unreasonableness of the re
straint of trade which they are attempting. The
" court has multiplied the difficulties under which
the government prosecutors will labor, even
when they commence civil prosecutions, but can
the government hope to convict trust magnates
of crime under the law as now constructed? In
crime the intent is everything, and the accused
is entitled to the benefit of every reasonable
'' doubt. What trust magnate could be convicted
The Commoner.
of criminal intent (with every reasonable doubt
resolved in his favor) to UNREASONABLY re
strain trade when there is no legal definition
of unreasonable restraint? Justico Brower,
speaking for the court, Tozor vs. Tho U. S.
52 Fed. 917, said: "But, in ordor to consti
tute a crime, the act must bo ono which tho
party Is able to know in advance whothor it is
criminal or not. The criminality of an act can
not depend upon whether & jury may think it
reasonable or unreasonable. Thoro must bo
some deflnitoness and certainty. In tho caso
of Railway Company vs. Dey (35 Fed. Rep.,
866,-876) I had occasion to discuss this matter,
and I quote therefrom as follows: 'Now, tho
contention of complainant is that the substance
of these provisions is that if a railroad com
pany charges an unreasonable rate it shall bo
deemed a criminal and punlshablo by fine, and
that such a statute Is too indefinite and un
certain, no man being able to toll in advance
what in fact is, or what any Jury will find to
be a reasonable rate. If this woro the construc
tion to be placed on this act as a whole, it
would certainly bo obnoxious to complainant's
criticism, for no penal law can bo sustained un
less Its mandates are so clearly expressed that
any ordinary person can determine In advance
what he may and what ho may not do under it."
In the light of this decision who Is likely to
be convicted of a criminal violation of the anti
trust law? We may as well recognize that WE
NOW HAVE NO CRIMINAL LAW AGAINST
THE TRUSTS. Whatever is left of the anti
trust law the only protection against monopo
lies for twenty-one years must bo enforced as
a civil statute, and ,of what value is that when
it requires four and a half years to reach a'
decision which, when reached, Is of but little
value when applied to another case? Accord
ing to the decision of the court each case must
now bo decided upon the facts which it presents,
the reasonableness of the restraint being a mere
matter of opinion, and as the value of testimony
depends as much upon the manner of the wit
ness as upon what he says, tho court deciding
upon a pririted record may reach a very different
conclusion from that reached by a court or
jury having living witnesses before it.
If one would understand the effect of tho
court's decision on the anti-trust law let him
apply it to other criminal statutes with which he
is more familiar. What would tho ntatnfn
against larceny amount to if it only prohibited
"unreasonable" stealing? Or the statute against
burglary if it did not prohibit burglary except
when carried beyond a "reasonable" extent?
What protection would there be in a law against
assault and battery if It prohibited only "undue"
beating? The average man will regard the re
port of the senate judiciary committee, above
referred to, as a much more reasonable docu
ment than the decision of tho supreme court,
and the opinion of the average man as to what
should constitute a crime is an opinion that
must be taken 'into consideration, even by the
supreme court," for in the United States the
opinion of the average man sooner or later be
comes the law of the land and the controlling
force in government.
Seventh And what shall we say of the
court's action in allowing six months for re
organization? If the defendants have been
guilty of violating the law for twenty years
why should they be allowed six months in which
to continue to violate the law while they per
fect a new combination? In the Tobacco case
Justice Harlan protests with feeling against the
time given to the defendants who are, by tho
decision, declared to be open and notorious
violators of the law. He says: "I find nothing
in this record from beginning to end, that makes
me at all anxious to perpetuate any combina
tion among these companies."
Is it not a little strange that such considera
tion should be shown to men whose crimes are
so enormous? If men of less wealth were in
volved, would the court hesitate to enforce the
law Immediately? If the defendants have
violated the law and they could only be con
victed upon the theory that they had violated
the law can the court suspend the law as to
.them or grant them Immunity in advance for
future violation during a given period? Noth
ing can do more to encourage anarchy no
better material for anarchistic speeches can bo
furnished than Judicial decisions that deal
leniently with great offenders. Equality before
the law is not the doctrine of tho demagogue.
Those who believe in it are not disturbers of
the peace, nor are they attempting to array
class against class. Equality before thojaw is
a fundamental doctrine of free government, and
it can not be disregarded with impunity by -any
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"DICTATION"
San, Diego, Cal. Editor of Com
moner: Tho oditorlal of Juno 16th
on "A Word as to Dictation," to my
mind has tho right ring In it. I have
been a life-long democrat, with n big D.
My first presidential voto was cast for
Franklin Pierce. I heartily ondorso tho
artlclo and consider W. J. Bryan tho
mnn of tho day. Tho liliputos politi
cal ones, of. both parties, who aro con
tinually barking at his heels aro gnaw
ing at a file. Bryan keeps moving in tho
oven tenor of his ways. Lot tho curs
keep barking; they know that W. J.
Bryan today is tho best beloved and
strongest politician in' tho country. Yes,
they fear him, although they aro backed
by the money power. Tho masses aro
with Bryan and true democracy. Wall
street can't crush him. Tho American
peoplo aro behind him and right will
ultimately prevail. Wo havo hero in San
Diego a morning paper to whom tho
name of W. J. Bryan Is aa a red flag
waved in tho face of a mad bull, at lenst
judging from tho articles that are pub
lished in tho "Union." Bryan still lives
and is on deck". It Is amusing, yet pa
thetic to hoar their howling against a
"dend politician," but apparently a'
much-lived ono, as no doubt his enemies
will find out about 1912.
P. S. LEISENRING, M. D.
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court, however high. It is of tho utmost im
portance that our courts shall deal with tho
great criminals as they deal with small ones; a
man who steals a pocketbook is a violator of tho
law and deserves punishment, but ho Is no moro
a violator of tho law than ono who conspires
against 90,000,000 people. To visit swift con
demnation upon the poor and friendless and to
grant Indulgence to tho rich and powerful
shocks the senso of justico which God' has
planted In every heart that sense of Justico
which is the only foundation of free Institutions,
liiigntn Tno last question to bo considered
is, what is to bo the result of this decision? Wo
havo seen ono result, namely, rejoicing on tho
part of every man pecuniarily interested in tho
corporations which are exploiting tho public.
But what will be tho effect upon tho public?
This question can not be answered without
entering the realm of prophecy, and prophecy
Is uncertain. We have seen one decision of tho
supremo CQurt the decision in tho Dred-Scott
case hasten a civil war, and we havo seen an
other decision the decision in tho income tax
case compel tho submission of an amendment
to the constitution. We shall see, as time goes
on, whether the people will acquiesce in this
decision or be aroused by it to more energetic
action against combinations in restraint of trado.
And the-result will have Its effect upon the repu
tations of the members of the court. If tho
revolution .which Chief Justice White has led
marks the beginning of a permanent policy ho
will be -accorded a high place among our jurists.
If, on the other hand, public sentiment develops
along the line of the dissenting .opinion we may
expect to see Justice Harlan' Increasingly
honored. If his warning is heeded ,and the
people assert their right to protect th'omselves
against trusts and monopolies, he will become
the forerunner of a great reform, while the
flame which the court mistook for "the light of
reason" will be discarded as an Illusion.
W. J. BRYAN.
"UNREASONABLE"
The New York World applauds tho court for
its' "unreasonable" decision, virtually repealing
tho criminal clause of the anti-trust law. In
order to prevent any legislation which will hurt
the trusts It shouts for criminal prosecution of
trust magnates. It would take several years
to reach an acquittal and in tho meantime the
trust can continue this exploitation.
FRIENDS AND FRIENDS
Some of the friendly newspapers quote all the
complimentary things said about Mr. Bryan,
while other friendly newspapers, such as the
Omaha (Neb.) World-Herald, quote all the
criticism. Mr. Bryan Is thus able to hear both
sides and weigh the evidence.
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