difficulties are answered in National vs. Texas:[1] "To contend for these extremes is to overlook the difference in the effect of actions, and to limit too much the function and power of government. By arguing from extremes almost every exercise of government can be shown to be a deprivation of individual liberty." Reading of Mr. Justice Holmes' natural feeling, I could not but think of Lord Bramwell's dictum regarding the "feelings" of great lawyers, 13 Ap. C. 12, "the four judges were great lawyers, and I believe that a great lawyer may be, as it were, instinctively right, without at the moment being able to give a good reason for his opinion." In prohibiting monopolies, and attempts at monopoly, Congress and the common law never intended or could have intended to prohibit necessary and useful things that in their nature had to be to some extent monopolies. Two towns unconnected by a railroad were certainly not forbidden to have a railroad because a railroad would, in a sense, be a monopoly. What was and has always been the evil was substituting for "competition," where that was either established or naturally and ordinarily possible, "sole sale" or "unified tactics" as to prices, and not at all to prevent the starting of a new industry. And that this was the intent of the common law and statute of James declaring it is shown by the reservation of right to grant patents for new inventions. The policy was to encourage industry, and that answers such objections. In many phases of the matter "magnitude" is, as the word implies, the very gist of it, and the dangerous measure, as in many other cases, must be found through the sound sense of the tribunal deciding it. An ordinary partnership, an ordinary
- ↑ 197 U. S. 129 (1905).
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