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the object of the combination being to exclude others from the trade. By the words of the statute "every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is hereby declared to be illegal," and "every person who shall monopolize, or attempt to monopolize, part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a misdemeanor." The Supreme Court of the United States found unanimously that the combination infringed the statute. The majority, for whom Mr. Justice White wrote the opinion, explained that in order to come within the prohibition of the statute a contract, combination, conspiracy, or attempted monopoly must be so extreme as to contemplate a restraint that is undue, or, in other words, unreasonable; but upon this point Mr. Justice Harlan dissented, relying upon earlier authorities. If the combination in the very litigation was an instance of unreasonableness, as apparently the whole court considered it to be, then the very case could have been decided without discussing what would have been the result in an opposite state of facts. In other words, the point as to which the court divided, and upon which almost the whole of the opinion-an extraordinarily brilliant one-spent its power, namely the now celebrated "rule of reason," was unnecessary to the decision of the very case. However correct may have been the court's views as to the importance of unreasonableness, these views, besides being unnecessary to the decision, were acceptable to both parties to the litigation and thus had not been subjected by counsel to full discussion. For these reasons, when a case of a combination that is reasonable comes before the court, the court may properly enough treat the question then squarely raised as not concluded beyond recall by the opinion in the present case, for of course a court has no power to decide a case which is really not before it. The reason for departing from judicial custom was doubtless that it seemed useful to let the world know what construction the court is likely to place upon

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the Sherman Anti-Trust Act in the future. Such a course, however useful, carries with it perils. More than half a century ago the same court, for patriotic reasons, gave its views upon certain other very different matters not actually before it; and the resultant public criticism of the court is regretted by lawyers to this day. That case was Dred Scott v. Sandford. 19 Absit


12 19 Howard, 393.




Trinity College, Durham, N. C.

Bibliographical Note.-Obviously it is impossible to give a definite authority for many of the statements made in an article of this sort. I have, for the most part, therefore, omitted any footnotes whatever. Naturally I have used such standard works as Lecky, whose chapters on Irish questions I have found to be based on a more thorough research than those dealing with purely British affairs, and Morley's Gladstone. I have consulted, as well, the various parliamentary papers and reports relating to the Home Rule bills of 1886, 1893, and One of the most useful expositions of Mr. Asquith's bill is the series of papers edited for the Eighty Club by Prof. J. H. Morgan, and recently published under the title, "The New Irish Constitution.' I need scarcely mention that I have referred to Dicey's "England's Case Against Home Rule" and "A Leap in the Dark"; the Earl of Dunraven's "The Legacy of Past Years"; G. Locker Lampson's "A Consideration on the State of Ireland in the Nineteenth Century"; Justin H. McCarthy's "The Case for Home Rule"; Sidney Brooks' "Aspects of the Irish Question"; Harold Begbie's "The Lady Next Door"; R. Barry O'Brien's "Life of Charles Stewart Parnell," "Dublin Castle and the Irish People," "Two Centuries of Irish History," "Home Rule Speeches of John Redmond," and other similar works. But the greater part of the material on which this article is based has been gathered from current newspapers and magazines and from personal observation in the course of my residence in England during the past three or four summers.

It is one of the commonplaces in the history of Europe in the nineteenth century that the two most striking characteristics observable in the political changes of that period are an assertion, on the one hand, of the right of a much larger proportion of the people than formerly to a share in the government and, on the other, the rise and persistence of what may be termed a spirit of nationality. Both of these forces were entirely ignored by the diplomats who assembled at Vienna in 1814-1815, but

1 For a further analysis of the pending Home Rule Bill see the note of Professor Shepard in the "Notes on Current Legislation" in this issue.


a combination of the two was destined to work almost a complete overthrow of the system inaugurated by that Congress. The Revolutionary and Napoleonic wars no doubt intensified the national consciousness already existing in England, but their influence in this direction was naturally felt to a much greater extent in such Continental countries as Spain and Prussia. In England, indeed, these wars had a decidedly reactionary effect on the movement toward popular government. It is not exaggerating to say that they delayed the reform of the parliamentary representation and the extension of the suffrage for more than a quarter of a century. But, after the movement for reform got under way again in England, Englishmen became increasingly liberal in their sympathies. Thenceforward aspiring Continental nationalities counted with good reason on a sympathetic hearing by a large and influential party of the English people. Greeks, Italians, Hungarians, Poles, and Bulgarians, in turn, found it not difficult to gain British good will in support of their causes. Indeed, Great Britain, ere long, came to look upon herself as a sort of international apostle of liberty and nationality. During all of this time, beginning with the very first year of the century and continuing to the present day, Great Britain has herself been a conspicuous violator of the principle which has met with her sympathy when maintained by Continental peoples. An Irish national spirit still survives in spite of more than a century of effort to destroy it, first by hostile measures and later by kindness. This is a noteworthy fact, because it signifies that the fight of the Irish for self-government must be considered as a part of the political movement which has contributed so materially to shape the character of the German Empire, the kingdom of Italy, and in fact nearly every European nation.

Naturally those who are opposed to Home Rule deny the correctness of this view. Mr. Balfour, the late leader of the Unionist party, asserts that "all this talk of restoring to Ireland Irish institutions, and of governing Ireland according to Irish ideas, has no historic basis whatever." There is an element of both truth and falsehood in this statement. A review

of the salient facts in Irish history pertaining to this controversy will make that point clear. We need not deal here in precise definitions of nationality, and we may safely take no account of the disputed existence of a national spirit in Ireland previously to the advent of the English. It profits little to test medieval institutions by the standards of the present day. Besides, although it is unquestionably rooted in the events of earlier years, the demand for Home Rule with which the British Parliament is now attempting to deal is preeminently a product of the nineteenth century.

There is not space here to trace the course of the disputes between England and Ireland from the passage of Poyning's Act in the latter part of the fifteenth century to its repeal in the latter part of the eighteenth. Yet it is impossible to get a clear understanding of the present situation in Ireland without some knowledge of the reasons why the Irish fought to maintain this law against the demands of the Tudors and then raised rebellion to secure its repeal in the closing years of the American Revolutionary War. This law, which provided that Irish legislation should originate in Ireland, be transmitted to England and approved by the English Privy Council, and finally be acted upon by the Irish Parliament, was an effectual check on the schemes of Henry VIII and Elizabeth. But the democratizing influences of the seventeenth century had operated to transform the Parliament that Grattan dominated into a more self-assertive body. England was now at the end of a disastrous war and was, therefore, not in a position to resist the demands of the Volunteer bands that supported Grattan. The result was the ill-fated experiment which lasted from 1782 until Pitt put an end to it in 1801.

Whether Grattan's Parliament, as it is called, would under different conditions have furnished a basis for the permanent settlement of the Irish question will always be a disputed point. Certainly no ship of state was ever launched under less auspicious circumstances or sailed a stormier sea. The British administration that sanctioned it fell almost immediately afterward, and the reins of the English government were held by

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