218 PHILANDER C. KNOX 



should exist. Arbitrary regulations that restrain free inter- 

 course are usually found to be unwise. 



Primarily it is for the congress to decide whether it has 

 the power, and whether and to what extent it will execute it 

 — what character of restraints, whether all or those only which 

 are unreasonable and injurious shall fall under the ban, 

 whether legislation in the first instance should extend to all 

 commerce or only to commerce in articles of vital importance 

 to the people. The time never was when the English-speak- 

 ing people permitted the articles necessary for their existence 

 to be monopolized or controlled, and all devices to that end 

 found condemnation in the body of their laws. The great 

 English judges pronounced that such manifestations of human 

 avarice required no statute to declare their unlawfulness, that 

 they were crimes against common law — that is, against com- 

 mon right. 



It is difficult to improve upon the great unwritten code 

 known as the common law. Under its salutary guaranties 

 and restraints the English-speaking people have attained their 

 wealth and power. It condemns monopoly, and contracts in 

 restraint of trade as well. The distinction, however, between 

 restraints that are reasonable in view of all the circumstances 

 and those which are unreasonable, is recognized and has been 

 followed in this country by the courts. This distinction makes 

 a rule that may be practically applied, and preserves the ra- 

 tional mean between unrestrained commerce and the absolute 

 freedom of contract. A law regulating interstate commerce 

 for its protection against restraint, so broad as to cover all 

 persons whose business is conducted under agreements which 

 are in any way or to any extent in restraint of trade, might 

 exclude thousands of small concerns conducting industries in 

 one state from marketing their products in others ; but a law 

 which only covers contracts and combinations in restraint of 

 trade as denned by the common law would exclude all hurtful 

 combinations and conspiracies. Congress can, if it sees fit, 

 adopt the scheme of that law. In the enforcement of such 

 law each case as it arose would be considered upon its own 

 facts, and the rule of guidance would be as laid down by the 

 Supreme court of the United States — that is, "public welfare 



