Mr. Justice Peckham and the Sherman Act from carrying on the same business as the other party within a certain period of time or within a certain territory. Such contracts are clearly within the phraseology of the act, as are obviously all contracts of natural or artificial persons, so far as they relate to interstate commerce.15 But it is unnatural to suppose that the framers of the Sherman act intended to repeal the rule which legalizes the so-called ancillary contracts, when they are only in "reasonable" restraint of trade.16 Neither is it to be supposed, in case the act applies to the contract between a state and a corporation, conferring on the latter an exclusive franchise, that it was intended to prohibit the granting of exclusive franchises which the law had not previously discounte nanced. If then the act legalized ancillary contracts in restraint of trade when not oppressive, and legalized some charters of monopoly, and then pro hibited commercial contracts "in re straint of trade" whether oppressive, or not, its framers succeeded only in "President Taft, when a judge of the Circuit Court of Appeals, writing the opinion of the court below in the Addyston Pipe case, took pains to point out that the contracts which under the common law are upheld as permitting a reasonable restraint of trade are "merely ancillary" to the main con tract (85 Fed. Rep. 271-302), and Mr Justice Holmes had the same distinction in mind when he wrote the dissenting opinion in the Northern Securities case (193 U. S. at p. 404). This principle has been clearly brought out by Mr. Charles E. Littlefield in an article on the Sherman anti-trust law (see 20 Green Bag 587). Can it be supposed that Congress ever intended to abolish the dis tinction? "President Taft in his speech to the committee which notified him of his nomination, speaking of needed amendments to the anti-trust law, citing the case of a corporation obligating itself to a purchaser of its good-will not to go into the same business within states covered by its previous business, and citing the illustration of a lawful strike of employees of an interstate railway, said that "neither case ought to be made a violation of the anti-trust law," "suggestions for the neces sary amendment" of which have been made "to prevent its application to cases which it is believed were never in the contemplation of the framers of the statute."
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concocting an absurdity. But this was plainly far from their intention. It was designed only to prevent un reasonable restraint of trade, and the distinction which had previously pre vailed in the case of ancillary contracts should have been imported into the law governing all contracts. The phrase ology of the act might be vague, but it was not radical. The act was not intended to take a more drastic attitude toward monopoly or practices savoring of monopoly than the rigorous statute of King James. It did not radically alter existing law; it merely gave it statutory form and put more readily within reach of the Departmentof Justice the weapons for the prosecution of acts of busi ness oppression. Suppose the phraseology of the act, instead of prohibiting contracts "in restraint of trade," had forbidden contracts "interfering with competi tion." In their popular sense, the two phrases have the same meaning. But there would have been no question that Congress intended only to proscribe unreasonable interference with com petition. The "restraint of trade," in fact, which Congress sought to forbid was simply business oppression. Problems of business oppression had been before the Supreme Court in the Granger cases17 and many other cases, and the test of "reasonableness" had frequently been applied with most satisfactory re sults. The Court did not need to have ancillary contracts in mind, to apply the same test to problems arising under the Sherman act. The interpretation of the Sherman act which was to follow was destined to magnify public at the expense of private right in a somewhat startling manner. This was to come about only "94 U. S. 113, 24 L. ed. 77.
