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mend such legislation to the consideration of the other legislatures of this country.

I again present as the fundamental and universal test of liability, so far, at least, as concerns the injuries herein considered, whether the act in question is the natural incident or outgrowth of some lawful relation. The three relations specially considered herein are those of trade competitor, employer and employee.

As to Combinations Producing Public Injury, the time may not be far distant when it will be clearly recognized that the body of existing legal doctrine relating thereto, is, to say nothing of the mass of "anti-trust legislation," a clumsy and worse than useless medieval survival; that the evils aimed at are, as a rule, best left to be corrected by the natural operation of the laws of trade. But this phase of the matter is rather for the economist or the legislator than for the jurist. The latter must recognize the existence of what is, for the present, at least, a firmly established condemnation on common law grounds of Combinations Producing Public Injury, producing, that is, restrictions upon competition.

After much confusion of thought and utterance, it is coming to be generally recognized that the most available basis of condemnation of such restrictions is by way of extending the rule formerly limited in its scope to monopolies created by the crown, to restrictions upon competition generally, resulting from acts of individuals. There still persists, in the utterances both of courts and of legislatures, the idea, the fallacy of which I have endeavored to demonstrate, that the condemnation of such restrictions is based on the medieval doctrine condemning "contracts in restraint of trade." This fallacious idea prominently appears, for instance, in the Federal Anti-Trust Act and decisions thereunder, so that, especially as interpreted by the courts, the act has considerable application beyond what seems to me to be its legitimate scope, that is, as including such "restraints of trade or commerce" as do not properly come under the description of restrictions upon competition. The most conspicuous instance of this is the application of the act to a mere boycott,

an entirely unnecessary result, as it seems to me, though I do not here undertake to say whether the fault is chargeable to Congress or to the Supreme Court.

It must be obvious upon a superficial examination that not all restrictions upon competition are subject to condemnation. But assuming, as we must, that some are, what shall be the test of legality? As I have endeavored to point out, what has thus far been the prevalent test is what I have called that of extent, a restriction being, in this view, and roughly speaking, illegal if on a large scale, otherwise not. But there seems to be a growing sense of dissatisfaction with this crudely and awkwardly working test, that it is impossible, or at least impracticable, to consistently apply. Especially as applicable to "business of a public character," what I have called the test of reasonableness seems to be increasing in favor, though it continues to be denied application to cases within the scope of the Federal Anti-Trust Act.

I have endeavored to include suitable references to such State and Federal statutes as were in force at the beginning of the present year, having special reference to the subjects discussed.

FREDERICK H. COOKE,

52 William St., N. Y. City, June, 1909.

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