Page images

and congratulated him upon his elevation to the Supreme Court bench of British Columbia. As a former resident and city solicitor of Nelson, Mr. Justice Macdonald is well known in the interior of the province. Members of the local bar present when the assizes opened were: A. M. Johnson, C. R. Hamilton, K.C., E. A. Crease, James O'Shea, E. C. Wragge, Fred C. Moffatt and T. M. Bowman, registrar of the Supreme Court. Several ladies, prominent in social life in the city, also attended Court for the occasion. Speaking on behalf of the members of the legal profession in Nelson and Kootenay-Boundary and also on behalf of the Vancouver bar and the citizens of Nelson, Mr. Johnson welcomed Mr. Justice Macdonald. It was felt, said Mr. Johnson, that inasmuch as it was only a short time since his lordship had left the city, and that he had represented it for a long time as city solicitor, that he was still of Nelson. In conclusion he expressed the hope that Mr. Justice Macdonald would for long carry out the duties of the bench which he was so well fitted to perform. Expressing his pleasure at the fact that one of the first Courts at which he had presided since being elevated to the bench was at Nelson, his lordship remarked that he had lived for so long in this city that it seemed that it was almost his home. He hoped that he would perform the duties of his position to the satisfaction not only of the members of the bar and his brother Judges but also of the public and expressed a determination to deal with all matters which came before him impartially and without fear or favour. A person who was placed in a position of public trust and performed his duties well had the greatest position in the world, and he hoped that it would always be said that he had carried out faithfully and honourably the full letter and spirit of the law. “The council have learned with a great deal of pleasure of the elevation of W. A. Macdonald, K.C., late city solicitor, to the bench and on behalf of the mayor and also of the citizens of Nelson we desire that you will express to his lordship our hearty congratulations,” states a letter from Mayor Keefe and W. E. Wasson, city clerk, to Mr. Johnson, who handed it to his lordship.

vol. XXXIII, C.L.T.-67



When Paul and the other apostles were brought before the Counsel of Israel for preaching the doctrines of Christ, contrary to the mandates of that body, Gamaliel, a Pharisee and a doctor of the law, stood up in the Council and said: “Ye men of Israel, take heed to yourselves what ye intend to do touching these men. . . . And now I say unto you, Refrain from these men, and let them alone; for if this counsel or this work be of men, it will come to nought; but if it be of God, ye can not overthrow it; lest haply ye be found even to fight against God.” So the people agreed with him. And after they had beaten the apostles they let them go with a warning not to persist in their misconduct. This is quite the way that the world has treated its evangels bearing any new message, in all lands and times. Nothing is more painful to the conventional mind than to be compelled to deal with a new idea. There was a much more modern Legum Doctor who spoke with authority in a similar vein and on a subject closely related to that of which I write: “Commerce can not require anything which is unreasonable and unjust; but what experience shews that her convenience does require, that she will have, for it will still be adhered to by the common consent of the commercial world; and if the Courts should refusa to enforce it with the few who refuse to conform to such a general custom, the moral sense of commercial men will apply its still more coercive influence, which few will withstand.” This indeed is the true spirit of the common law which has always sought to recognize and follow the customs of the people, giving them, when not immoral, the force and sanction of law when long and generally pursued and fully ascertained. The argument is that a trade combination, accomplished for the purpose of securing all the business possible, having no purpose otherwise unlawful, and wholly unaided by law

in any monopoly which may be enjoyed, must stand or fall as an economic proposition.

* Justice John D. Caton in Munn v. Burch, 25 Ill, 35.

It is no legitimate function of law to declare the illegality of such a combination nor to visit penalties upon those concerned in it. Under normal conditions, it can only succeed if, on the whole, it gives customers more for their money than they can otherwise obtain. This is the Alpha and Omega of the trust problem; all else, Court decisions, presidential proclamations, verbose legislation and platitudinous orations are but sounding brass, Hear the old Thunderer as he strikes his sledge-hammer blows at such current conventional humbug. o

“Shiftiness, quirk, attorney cunning is a kind of thing that fancies itself, and is often fancied to be talent; but it is luckily mistaken in that. Succeed truly it does, what is called succeeding; even must in general succeed, if the dispensers of success be of due stupidity. Men of due stupidity will needs say to it, ‘Thou art wisdom, rule thou!' Whereupon it rules. But, Nature answers, ‘No, this ruling of thine is not according to my laws; thy wisdom was not wise enough. Dost thou take me too for a Quackery For a conventionality and Attorneyism? This chaff that thou sowest into my bosom, though it pass at the poll booth and elsewhere for seed-corn, I will not grow wheat out of it, for it is chaff.”

It is idle to dispute that the essential idea of our familiar national statute against monopoly in trade is that efforts to interfere with the course of business either by combinations between rivals which tend to restrain trade or increase prices, or by the purchase of competing interests to get not only their tangibles but their clients or trade constituents, thus establishing a considerable measure of control in that field such as necessarily goes with large business, are criminal.

I do not know that this has been solemnly declared in so many words by any judicial wiseacre expounding this preposterous law. I presume it has been. It is said Lord Hardwicke declared that in the Year Books a case could be found for any proposition. What would he have said of the Federal Reporter?

But whether this has been formally and judicially declared or not, it is the necessary conclusion from many decisions. Nor is this to be obscured by much prolix expatiation on the particular enormities perpetrated by various “bad” trusts that have come under the judicial ban.

There is not much of profit to be derived from the study of the opinions of Courts in such cases. The questions involved are too large for solution in this way. Courts are necessarily conservative. Where the legislature has established rules within its competence, these must be followed by the Courts. Occasionally a Mansfield or a Marshall arises, to advance the law by the breadth and sweep of his judgments; but this is so very occasional that it is negligible. In fact from the time when Sir Matthew Hale declared judicially that the existence of witchcraft was established by incontrovertible proofs, down to the day of the date of these presents, on all political, governmental and economic questions, the Courts have followed, in a kind of reactionary spirit, longo interrallo, the advanced and advancing intelligence of their time. So when great questions are worked out through other agencies and elaborated into law, then the Courts recognize the results thus obtained. I say they do: but this is not always true. For in many instances, upon strained and retrogressive interpretations of organic law, they hinder and impede efforts at social and political advancement which they are not only unable or unwilling to promote, but which they seem quite incapable of comprehending. This is not to say that they are not the Oracles of the law with all that papal infallibility which the most ardent lover of Courts and Judges can claim for them. Such they are. And the law thus announced must be respected and obeyed. “What is the law, should, because it is the law, be spontaneously obeyed by the community; or obedience be vigorously enforced by the tribunals of the country. Those who resist the law, and avow and justify the resistance, on the alleged ground that what they are thus opposing is unjust, invade the province of the legislature, by themselves enacting a practical repeal; or rather burst the constitutional and social ties; and return to that rude anarchy from which they had been rescued by the law.” As I understand the Sherman Act, it prohibits all contracts or combinations in restraint of interstate trade, at least where they are of such size and character as to tend to monopoly in that field. I assume that if there were two great companies which manufactured all the steel rails, beams, plates, etc., that were made in this country in competition with each other, if one bought out the other, one purpose of that transaction being thus to occupy the entire field without competition, this would fall within the condemnation of the act. To return to a simpler yet by no means remote time, there were say forty years ago two manufacturers making plows in Moline, Illinois. Let it be supposed that they together controlled an extensive trade, not absolutely in any particular territory perhaps, but still to such an extent that on all such matters as prices, terms, etc., they exercised a very potent influence. Neither nor both had a monopoly; but each being a strong and successful institution had a large and, except for the activities of the other, practically a controlling influence in a wide field. Now if one, accumulating a surplus a little more rapidly than the other and being a litle more aggressive, thus to some appreciable extent drawing away its rival’s customers, finally, largely for the purpose of getting rid of a competitor, buys out the other company with usual covenants from its active officers against competitive activity on their part, this is apparently unlawful. Competition is the life of trade because it is believed to stimulate energetic efforts to secure trade and thus to promote efficiency and to secure reasonable prices.

* Baron Smith in Knor v. Garin, 1 Jones (Ir, Ex.) 190.

Now in the case supposed, one of the companies buys out the other largely to secure additional custom. To say that this is unlawful is to check that healthful and energizing spirit which has made our domestic trade and commerce the wonder of the world. It is to strike a fatal blow at that tireless ambition to accomplish all that is humanly possible that has built up those wonderful institutions in manufacture and in trade which are the most distinctive features of our time. But it is said if such combinations are tolerated, they will have consumers at their mercy, and will charge what they please for their conduct. May be so for a time. But sooner or later men in control of such enterprises will learn that such a course is suicidal. In the first place it is certain to develop competition. Just now this is prevented in a measure by the Sherman Act. It operates in terrorem ; and thus combinations already in existence before it was vigorously enforced, enjoy a certain

« PreviousContinue »