ral principle, that, under the Sherman Act, _all_ restraints of
trade, or monopolies, were unlawful, and, therefore, the Court had but
two matters before it, first to define a restraint of trade or a
monopoly, second to determine whether the particular combination
complained of fell within that definition. No discretion was permitted.
Judicial duty ended there.

The Court being found to be inflexible, recourse was had to Congress,
and a bill in the form of an amendment to the Sherman Act was brought
into the Senate authorizing, in substance, those who felt unsafe under
the law, to apply to certain government officials, to be permitted to
produce evidence of the reasonable methods they employed, and, if the
evidence were satisfactory, to receive, what was tantamount to, an
indulgence. The subject thus reopened, the Senate Committee on the
Judiciary went into the whole question of monopoly anew, and in 1909
Senator Nelson presented an exhaustive report against the proposed
relaxation. Thereupon the Senate indefinitely postponed further
consideration of the amendment. The chief reasons given by Senator
Nelson were summed up in a single sentence: "The defence of reasonable
restraint would be made in every case and there would be as many
different rules of reasonableness as cases, courts, and juries.... To
amend the anti-trust act, as suggested by this bill, would be to
entirely emasculate it, and for all practical purposes render it
nugatory as a remedial statute.... The act as it exists is clear,
comprehensive, certain and highly remedial. It practically covers the
field of federal jurisdiction, and is in every respect a model law. To
destroy or undermine it at the present juncture, ... would be a
calamity.

"In view of the foregoing, your committee recommend the indefinite
postponement of the bill."[35]

And so the Senate did indefinitely postpone the bill.

Matters stood thus when the government brought process to dissolve the
Standard Oil Company, as an unlawful combination. The cause was decided
on May 15, 1911, the Chief Justice speaking for the majority of the
bench, in one of the most suggestive opinions which I have ever read. To
me this opinion, like Taney's opinion in the Charles River Bridge Case,
indicates that the tension had reached the breaking point, the court
yielding in all directions at once, while the dominant preoccupation of
the presiding judge seemed to be to plant his tribunal in such a
positio