endency of the courts has been and is toward a constant broadening of
the term to meet the facts of present-day business.

[Footnote 1: _United States v. E.C. Knight Company_, 156 U.S., 1.]

The other question--Did the Sherman Act change the common-law rule as to
what restraints and monopolies are forbidden?--has been even more
troublesome. The lawyers in Congress who framed the law believed that it
did not. This is the testimony of Senator Hoar in his Autobiography, and
as he was a member of the Senate Judiciary Committee which reported the
act in its present form, and claims to have drawn it himself, his
testimony is entitled to belief. The Supreme Court, however, in this
particular went further than was expected. In the Trans-Missouri
Freight Association case,[1] which reached the Supreme Court two years
after the Knight case, that tribunal decided by a five-to-four majority
that the words "_every_ contract ... in restraint of trade" extended the
operation of the law beyond the technical common-law meaning of the
terms employed so as in fact to include all contracts in restraint of
interstate trade without exception or limitation. This theory was
strongly combated by the minority of the court, speaking through Justice
(afterwards Chief Justice) White, and was denounced by many eminent
lawyers, notably the late James C. Carter, then leader of the New York
Bar, who predicted that sooner or later it must be abandoned as
untenable. Their protests were well founded. The theory, carried to its
logical conclusion, would have prohibited a great variety of
transactions theretofore deemed reasonable and proper, and would have
brought large business to a standstill. As a matter of fact, it was
never carried to its logical conclusion, and six years later it was
expressly repudiated by Justice Brewer; one of the five, in the course
of his concurring opinion in the Northern Securities case.[2] Justice
Brewer said that while he believed the Trans-Missouri case had been
rightly decided he also believed that in some respects the reasons given
for the judgment could not be sustained.

Instead of holding that the Anti-Trust Act included all
contracts, reasonable or unreasonable, in restraint of
interstate trade, the ruling should have been that the
contracts there presented were unreasonable restraints of
interstate trade, and as such within the scope of the Act....
Whenever a departure from common-law r