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The Green Bag
be determined in each case by a consideration of all the pertinent facts, such as specific acts, general course of conduct, and results. . . . "From an economic point of view it becomes continually clearer that what is needed is not the dissolution of existing combinations, nor the arbitrary prohibition of new ones, but the pre vention of the evils which frequently if not usually accompany combinations. Unfair com petition and discriminations must be forbidden by a law which shall be, so far as possible, actually preventive. In addition it must be recognized that distinctions which it is easy and proper to make in theory are difficult to make when dealing with actual facts. There is unquestionably a dangerous potentiality of evil in all great combinations. This means both that they are likely to use unfair methods and also that great harm will be done if they do. Because of the fact that it is probably impossible to reach directly all forms of unfair competition without government supervision, such combina tions should be directly supervised by the government to the end that unfair methods be discovered and prevented. . . . "A substantial change in the law has been made. Judicial legislation could hardly accom plish more than it has done in these cases. It remains true that judicial legislation cannot do everything. - A great step has been made towards the solution of the trust problem. It consists in the fact that attack is at last concentrated, not on combination on a large scale, but on the evils and wrongdoing which accompany combination. It remains to clear up the considerable remaining obscurity of the situation by embodying the principles of these great decisions in a statute which shall lay down clear and definite rules of conduct, and which shall not supplant but supple ment the Anti-Trust Act as now construed." "Anti-Trust Legislation and Litigation." By William B. Hornblower. 11 Columbia Law Review 701 (Dec.). Address delivered before the American Bar Association in Boston last August. "The truth is, and there is no Jogical escape from the conclusion, that a literal interpretation and an impartial enforcement of the statute would stop the wheels of industry and would paralyze trade." "The Interstate Trust and Commerce Act of 1890." By Ex-Senator George F. Edmunds. North American Review, v. 194, p. 801 (Dec.). In a foreword the editor of the North American Review explains that while Senator Edmunds wrote all of sections 2, 3, 5, and 6 of the act, and practically all of section 1, the title of the law does Senator Sherman no more than justice, since he was the originator of the general plan. Senator Edmunds, writing from an intimate knowledge of all the circumstances under which the law was slowly framed, declares, with great emphasis and earnestness, that its framers never intended that it should be used as a weapon for the destruction of honest business, but really anticipated that the courts should construe it as the United States Supreme Court has construed it and apply it for the healthy growth of trade, fairly conducted.
Senator Edmunds concludes by declaring that the Government should strike out boldly:— "The evils are great," he says, "and the reme dies must be applied. But it is said that in doing this the business operations and interests of the country will be disturbed and upset. Well, if the 'business interests' of the great and widespread combinations, as now carried on, are crushing out smaller enterprises and monopolizing indus tries that should be fairly and equally open to all, and controlling and enhancing the prices of almost everything in every household, must suffer from the enforcement of equal laws necessary to the welfare of the whole people, it is the con sequence of their evildoing and must be borne, and every honest and fair enterprise will survive for the good of all. . . . "Business of every civilized country in a condition of peaceful and stable order will always — at least generally — adjust itself to the capacities and necessities of the people; in short, to the laws of demand and supply, which are permanent and supreme. If it is conducted under circumstances of relative equity and of fair dealing there will be healthful com petition and finally co-operation in production, manufactures, commerce, and finance, and for the industrious labor that moves them all. Large operations need not destroy the small, and real progress and prosperity will bless the Com monwealth. The cynic will say that this is visionary; but if so, it has been at some periods a fact. It can be made so again by patience, persistence, and justice." "What's the Matter with Business? I, Views of Frank A. Vanderlip." Outlook, v. 99, p. 857 (Dec. 9). "The Sherman Law, to me, seems like an attempt at turning back the hands of the clock. However earnest and sincere the efforts may be to enforce that law and to compel people who have comprehended the waste and destruction of remorseless economic warfare to return to a state of unrestricted competition, however strong the belief may be that by legislation and judicial judgments, by fines and imprisonments, it will be possible to compel the abandonments of a great economic device and force business to wheel around in its tracks and return to the status of fifty years ago, the whole effort will be as futile as the turning back of the hands of the legislative clock. Time ticks on, let the laws be what they may." "The Industrial Problem." By Andrew Car negie. North American Review, v. 194, p. 914 (Dec.). "The Republic has triumphed over all diffi culties in the past and will easily triumph over this, which is really not alarming. An industrial court passing upon fair prices, as the Interstate Commission passes upon railway rates, is all we need. We are soon to look upon the coming change in laws regulating industrialism as desir able, rejoicing that it brings better security of fair and deserved returns, although no longer monopolistic prices, to the producer, fairer prices to the consumer, and closer and more friendly relations between employer and employed than ever existed before."
