there is not merely the "power and interest" necessary to create the tendency constituting illegality in other cases; but there is absolute necessity that he or it must regulate interstate transactions in that commodity. In view of the investigations of Professor Stimson, as well as the actual decision in National vs. Texas, it is not difficult to say what the ultimate conclusion will be.
In the Securities case Mr. Justice Holmes says:[1] "There is a natural feeling that somehow or other the statute meant to strike at combinations great enough to cause just anxiety on the part of those who love their country more than money, while it viewed such little ones as I have supposed with just indifference. This notion, it may be said, somehow breathes from the pores of the Act, although it seems to be contradicted in every way by the words in detail. And it has occurred to me that it might be that when a combination reached a certain size it might have attributed to it more of the character of a monopoly merely by virtue of its size." And the test of Mr. Justice Jackson of "exclusion of others" evidently created great difficulty in Mr. Justice Holmes's mind. But if, as has been shown, the fundamental offence was "sole sale" or attempts to reach it, tendency to it; and exclusion by sovereign or other authority was but a single and, indeed, last phase of it, is not Mr. Justice Holmes's feeling fully supported by the very words of the Act? He says, at page 403: "Much trouble is made by substituting other phrases assumed to be equivalent, which then are reasoned from as if they were in the Act." And is not this difficulty here the result of substituting "attempts to exclude others" for the wider phrase "sole sale"? The other
- ↑ 193 U. S. 407 (1904).
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