Mr. Justice Peckham and the Sherman Act was bound by the authority of these two cases in Addyston Pipe and Steel Co. v. United States,26 and in Montague & Co. v. Lowry.27 How easily any slight pressure of conviction on this subject could have affected the equili brium of the court can be readily seen from the small majorities. Mr. Justice Peckham did not write the opinion in the Northern Securities case,28 it being rendered by Mr. Justice Harlan in accordance with the doctrines estab lished in these earlier cases in which the late Justice had expressed the judgment of the court, and it is to Mr. Justice Peckham's credit that in this case he concurred with Mr. Justice Holmes's dissenting opinion, which was to the effect that when the restraint of trade is self-imposed, so as to affect only the parties to the agreement and not outsiders, such voluntary repudia tion of competition is not to be viewed as unlawful. It is also to his credit that in the famous wall paper case,29 which held that debts to an illegal combination cannot be collected, he was one of the four dissenting Justices. From a reading of Mr. Justice Peckham's opinions one gains an impression of logical cogency, clearness of style, and level-headed conservatism, and he was a judge whose chivalrous love of justice made him one of the most dignified ornaments of the modern bench. His decisions are models of lucidity. His labors were marked by great industry, remarkable purity, M175 U. S. 211, 44 L. ed. 136. "193 U. S. 38. M193 U. S. 197. "Continental Wall Paper Co. v. Voight & Sons Co., 212 U. S. 227.
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freedom from partisan bias, and a deep sense of duty, and he was one of the most forceful and likable of the nine Justices. It would hardly be con tended, however, that he was the equal in learning or acumen of some of his colleagues. In his judgment in the Addyston Pipe case30 is an intimation to the effect that it is unnecessary to prove any diminution in the quantity of sales to show a restraint of trade, and the logical consequences of such a theory, supposing it tenable, receive no consideration.31 In consequence of these decisions the Supreme Court, having adopted an artificial construction of an act which must stand on account of the operation of the principle of stare decisis, has virtually put Congress in the position of having enacted a piece of experimental legislation which in its practical working has turned out to be injudicious. As a matter of fact the Sherman act was not an experiment, and had it been construed differently its usefulness might well have been permanent. As the Supreme Court is committed in this instance to the motto nulla vestigia retrorsum, the only means of exit available from a difficult position is for Congress to repeal or substantially amend the Sherman act, treating it as a wasted opportunity. It would be better, moreover, to have no federal anti-trust statute whatever, than to have another which, like this, were again to impede the symmetri cal and proper development of the law of interstate trade. "175 U. S. 211. "175 U. S. 244-5.
