to carry this principle into
effect. Jay and Marshall, Story and Bradley, and many, many more,
struggled, protested, and failed. Failed, as I believe, through no fault
of their own, but because fortune had placed them in a position
untenable for the judge. When plunged in the vortex of politics, courts
must waver as do legislatures, and nothing is to me more painful than to
watch the process of deterioration by which our judges lose the instinct
which should warn them to shun legislation as a breach of trust, and to
cleave to those general principles which permit of no exceptions. To
illustrate my meaning I shall refer to but one litigation, but that one
is so extraordinary that I must deal with it in detail.

In 1890 the dread of the enhancement of prices by monopoly, as the
Supreme Court itself has explained, caused Congress to pass the famous
Sherman Act, which prohibited indiscriminately all monopolies or
restraints of trade. Presently the government brought a bill to dissolve
an obnoxious railway pool, called the Trans-Missouri Freight
Association, and in 1896 the case came up for adjudication. I have
nothing to say touching the policy involved. I am only concerned with a
series of phenomena, developed through several years, as effects of
pressure acting upon a judiciary, exposed as the judiciary, under our
system, is exposed.

The Trans-Missouri Case was argued on December 8, 1896, very elaborately
and by the most eminent counsel. After long consideration, and profound
reflection, Mr. Justice Peckham, speaking for the majority of the
tribunal, laid down a general principle in conformity to the legislative
will, precisely as Marshall had laid down a general principle in the
Dartmouth College Case, or Story in the Charles River Bridge Case, or
Waite in Munn _v_. Illinois, or Bradley in the Minnesota Rate Case. Then
the process of agitation immediately began. In the words of Mr. Justice
Harlan, fifteen years later: "But those who were in combinations that
were illegal did not despair. They at once set up the baseless claim
that the decision of 1896 disturbed the 'business interests of the
country,' and let it be known that they would never be content until the
rule was established that would permit interstate commerce to be
subjected to _reasonable_ restraints."[34]

Other great causes, involving the same issue, were tried, the question
was repeatedly reargued, but the Supreme Court tenaciously adhered to
its gene