Prelude to progressivism: Party decay, populism, and the doctrine of "free and unrestricted competition" in American antitrust policy, 1890-1897

Studies in American Political Development

Volumn 13, Issue 2, 1999, Pages 288-336

  James, Scott C ^a  

^a NONE

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EID: 0033272214     PISSN: 0898588X     EISSN: None     Source Type: Journal    
DOI: 10.1017/s0898588x99002369     Document Type: Article

References (97)

1. 166 U.S. 290 (1897).
2. Briefs and Records of the U.S. Supreme Court. United States v. Trans-Missouri Freight Company, 166 U.S. 290. Arguments of Attorney General Judson Harmon.
3. Herbert Hovenkamp, Enterprise and American Law, 1836-1937 (Cambridge, Mass.: Harvard University Press, 1991). Necessaries of life included such commodities as coal, gas, lumber, and milk.
4. Martin J. Sklar, The Corporate Reconstruction of American Capitalism, 1890-1916 (New York: Cambridge University Press, 1986).
5. William Letwin, Law and Economic Policy in America: The Evolution of the Sherman Antitrust Act (Edinburgh: Edinburgh University Press, 1966), 240-41.
6. This last theme is pursued in some detail in Scott C. James, "Building a Democratic Majority: The Progressive Party Vote and the Federal Trade Commission," Studies in American Political Development 9 (1995): 331-85; and in James, Presidents, Parties, and the State: A Party System Perspective on Democratic Regulatory Choice, 1884-1936 (New York: Cambridge University Press, 2000) forthcoming.
7. This last theme is pursued in some detail in Scott C. James, "Building a Democratic Majority: The Progressive Party Vote and the Federal Trade Commission," Studies in American Political Development 9 (1995): 331-85; and in James, Presidents, Parties, and the State: A Party System Perspective on Democratic Regulatory Choice, 1884-1936 (New York: Cambridge University Press, 2000) forthcoming.
8. Thus, in writing for the majority, Justice Peckham "departed from traditional common law jurisprudence to reestablish the earlier small-producer version of natural liberty[.]" On the other hand, the minority opinion, written by Justice (later Chief Justice) Edward D. White, "invoked the traditional common law to vindicate new economic theory and a legal positivism suited to the mature industrial capitalism of the late nineteenth and early twentieth centuries." See Sklar, The Corporate Reconstruction of American Capitalism, 140.
9. It will be recalled that the senators who drafted and sponsored the Sherman Act considered it as essentially a statutory embodiment, at the federal level, of common-law doctrine, and that the federal courts so construed the act from 1890 to 1897. In this period, moreover, . . . the executive branch of the federal government, as represented by the various presidents and attorneys general, who were responsible for enforcing the law, shared this view. (Sklar, The Corporate Reconstruction of American Capitalism, 339)
10. Hovenkamp, Enterprise and American Law, xxx.
11. Application of the "rule of reason" in the common law was confined to the law of contracts in restraint of trade, specifically to contracts in partial restraint of trade: restrictive covenants ancillary to a some other main purpose, such as the transfer of property or goodwill, or an agreement by a master to take someone on as an apprentice.
12. For an agrarian interpretation of American antitrust politics with remarkable historical sweep, see Elizabeth Sanders, "Industrial Concentration, Sectional Competition and Antitrust Politics in America, 1880-1980," Studies in American Political Development 1 (1986): 142-214; and Sanders, Roots of Reform: Farmers, Workers, and the American State, 1877-1917 (Chicago: University of Chicago Press, 1999). On the "System of 1896" as a political regime functional to emergent corporate capitalism, see Walter Dean Burnham, "The Changing Shape of the American Political Universe" and "Theory and Voting Research," in The Current Crisis in American Politics (New York: Oxford University Press, 1982), chaps. 1-2; and Burnham, "The System of 1896: An Analysis," in The Evolution of American Electoral Systems, ed. Paul Kleppner (Westport, Conn.: Greenwood Press, 1981), chap. 5. Finally, on the concept of the political universe as structured by multiple and conflicting institutional orders, see Karen Orren and Stephen Skowronek, "Institutions and Intercurrence: Theory Building in the Fullness of Time," Nomos 28 (1996): 111-46.
13. For an agrarian interpretation of American antitrust politics with remarkable historical sweep, see Elizabeth Sanders, "Industrial Concentration, Sectional Competition and Antitrust Politics in America, 1880-1980," Studies in American Political Development 1 (1986): 142-214; and Sanders, Roots of Reform: Farmers, Workers, and the American State, 1877-1917 (Chicago: University of Chicago Press, 1999). On the "System of 1896" as a political regime functional to emergent corporate capitalism, see Walter Dean Burnham, "The Changing Shape of the American Political Universe" and "Theory and Voting Research," in The Current Crisis in American Politics (New York: Oxford University Press, 1982), chaps. 1-2; and Burnham, "The System of 1896: An Analysis," in The Evolution of American Electoral Systems, ed. Paul Kleppner (Westport, Conn.: Greenwood Press, 1981), chap. 5. Finally, on the concept of the political universe as structured by multiple and conflicting institutional orders, see Karen Orren and Stephen Skowronek, "Institutions and Intercurrence: Theory Building in the Fullness of Time," Nomos 28 (1996): 111-46.
14. For an agrarian interpretation of American antitrust politics with remarkable historical sweep, see Elizabeth Sanders, "Industrial Concentration, Sectional Competition and Antitrust Politics in America, 1880-1980," Studies in American Political Development 1 (1986): 142-214; and Sanders, Roots of Reform: Farmers, Workers, and the American State, 1877-1917 (Chicago: University of Chicago Press, 1999). On the "System of 1896" as a political regime functional to emergent corporate capitalism, see Walter Dean Burnham, "The Changing Shape of the American Political Universe" and "Theory and Voting Research," in The Current Crisis in American Politics (New York: Oxford University Press, 1982), chaps. 1-2; and Burnham, "The System of 1896: An Analysis," in The Evolution of American Electoral Systems, ed. Paul Kleppner (Westport, Conn.: Greenwood Press, 1981), chap. 5. Finally, on the concept of the political universe as structured by multiple and conflicting institutional orders, see Karen Orren and Stephen Skowronek, "Institutions and Intercurrence: Theory Building in the Fullness of Time," Nomos 28 (1996): 111-46.
15. For an agrarian interpretation of American antitrust politics with remarkable historical sweep, see Elizabeth Sanders, "Industrial Concentration, Sectional Competition and Antitrust Politics in America, 1880-1980," Studies in American Political Development 1 (1986): 142-214; and Sanders, Roots of Reform: Farmers, Workers, and the American State, 1877-1917 (Chicago: University of Chicago Press, 1999). On the "System of 1896" as a political regime functional to emergent corporate capitalism, see Walter Dean Burnham, "The Changing Shape of the American Political Universe" and "Theory and Voting Research," in The Current Crisis in American Politics (New York: Oxford University Press, 1982), chaps. 1-2; and Burnham, "The System of 1896: An Analysis," in The Evolution of American Electoral Systems, ed. Paul Kleppner (Westport, Conn.: Greenwood Press, 1981), chap. 5. Finally, on the concept of the political universe as structured by multiple and conflicting institutional orders, see Karen Orren and Stephen Skowronek, "Institutions and Intercurrence: Theory Building in the Fullness of Time," Nomos 28 (1996): 111-46.
16. For an agrarian interpretation of American antitrust politics with remarkable historical sweep, see Elizabeth Sanders, "Industrial Concentration, Sectional Competition and Antitrust Politics in America, 1880-1980," Studies in American Political Development 1 (1986): 142-214; and Sanders, Roots of Reform: Farmers, Workers, and the American State, 1877-1917 (Chicago: University of Chicago Press, 1999). On the "System of 1896" as a political regime functional to emergent corporate capitalism, see Walter Dean Burnham, "The Changing Shape of the American Political Universe" and "Theory and Voting Research," in The Current Crisis in American Politics (New York: Oxford University Press, 1982), chaps. 1-2; and Burnham, "The System of 1896: An Analysis," in The Evolution of American Electoral Systems, ed. Paul Kleppner (Westport, Conn.: Greenwood Press, 1981), chap. 5. Finally, on the concept of the political universe as structured by multiple and conflicting institutional orders, see Karen Orren and Stephen Skowronek, "Institutions and Intercurrence: Theory Building in the Fullness of Time," Nomos 28 (1996): 111-46.
17. Some of the more important of this literature are Hans B. Thorelli, The Federal Antitrust Policy: Origination of an American Tradition (Baltimore: The Johns Hopkins University Press, 1955); William Letwin, Law and Economic Policy in America; Sklar, Corporate Reconstruction, 105-17; Tony Freyer, Regulating Big Business: Antitrust in Great Britain and America, 1880-1980 (New York: Cambridge University Press, 1992); Rudolph J. R. Peritz, Competition Policy in America: History, Rhetoric, Law (New York: Oxford University Press, 1996).
18. Some of the more important of this literature are Hans B. Thorelli, The Federal Antitrust Policy: Origination of an American Tradition (Baltimore: The Johns Hopkins University Press, 1955); William Letwin, Law and Economic Policy in America; Sklar, Corporate Reconstruction, 105-17; Tony Freyer, Regulating Big Business: Antitrust in Great Britain and America, 1880-1980 (New York: Cambridge University Press, 1992); Rudolph J. R. Peritz, Competition Policy in America: History, Rhetoric, Law (New York: Oxford University Press, 1996).
19. Some of the more important of this literature are Hans B. Thorelli, The Federal Antitrust Policy: Origination of an American Tradition (Baltimore: The Johns Hopkins University Press, 1955); William Letwin, Law and Economic Policy in America; Sklar, Corporate Reconstruction, 105-17; Tony Freyer, Regulating Big Business: Antitrust in Great Britain and America, 1880-1980 (New York: Cambridge University Press, 1992); Rudolph J. R. Peritz, Competition Policy in America: History, Rhetoric, Law (New York: Oxford University Press, 1996).
20. Some of the more important of this literature are Hans B. Thorelli, The Federal Antitrust Policy: Origination of an American Tradition (Baltimore: The Johns Hopkins University Press, 1955); William Letwin, Law and Economic Policy in America; Sklar, Corporate Reconstruction, 105-17; Tony Freyer, Regulating Big Business: Antitrust in Great Britain and America, 1880-1980 (New York: Cambridge University Press, 1992); Rudolph J. R. Peritz, Competition Policy in America: History, Rhetoric, Law (New York: Oxford University Press, 1996).
21. Some of the more important of this literature are Hans B. Thorelli, The Federal Antitrust Policy: Origination of an American Tradition (Baltimore: The Johns Hopkins University Press, 1955); William Letwin, Law and Economic Policy in America; Sklar, Corporate Reconstruction, 105-17; Tony Freyer, Regulating Big Business: Antitrust in Great Britain and America, 1880-1980 (New York: Cambridge University Press, 1992); Rudolph J. R. Peritz, Competition Policy in America: History, Rhetoric, Law (New York: Oxford University Press, 1996).
22. Thus we can bypass an examination of the intent behind Ohio Republican John Sherman's original antitrust bill, since that legislation was eventually discarded by the Senate Judiciary Committee in favor of the provisions found in the final statute. Although the new law continued to carry Sherman's name, its content was sufficiently out of step with Sherman's desires that in 1903 Republican George F. Hoar would remark that the legislation was more aptly called the "anti-Sherman trust law" than the "Sherman antitrust law" because "it was passed under his [Sherman's] vigorous protest." Thorelli, Federal Antitrust Policy, 210 n. 112.
23. See, for example, Hans B. Thorelli, The Federal Antitrust Policy; Sklar, Corporate Reconstruction, 105-17.
24. See, for example, Hans B. Thorelli, The Federal Antitrust Policy; Sklar, Corporate Reconstruction, 105-17.
25. Congressional Record 51st Cong., 1st Sess., vol. 21 pt. 4, 3148.
26. Ibid., 3146.
27. Ibid., 3151.
28. Ibid.
29. Remarking on the common law intent of the Sherman Act, one contemporaneous legal observer stated: Is not the title of the act in harmony with this view? It reads: "An act to protect trade and commerce against unlawful restraints and monopolies," not an act to protect trade and commerce against any restraint whatsoever, but an act to protect trade against unlawful restraints - that is, unreasonable ones - and it is submitted that the title of the act can be used as an aid to the construction of the body of the statute. (George Stuart Patterson, "The Case of Trans-Missouri Freight Association," The American Law Register and Review, New Series, 36 (1897): 316, quoted in Sklar, Corporate Reconstruction, 116-17 n.62)
30. Remarking on the common law intent of the Sherman Act, one contemporaneous legal observer stated: Is not the title of the act in harmony with this view? It reads: "An act to protect trade and commerce against unlawful restraints and monopolies," not an act to protect trade and commerce against any restraint whatsoever, but an act to protect trade against unlawful restraints - that is, unreasonable ones - and it is submitted that the title of the act can be used as an aid to the construction of the body of the statute. (George Stuart Patterson, "The Case of Trans-Missouri Freight Association," The American Law Register and Review, New Series, 36 (1897): 316, quoted in Sklar, Corporate Reconstruction, 116-17 n.62)
31. Congressional Record 51st Cong., 1st Sess., vol. 21 pt. 6, 5950.
32. Ibid., 5956.
33. Culberson's responsibility for managing the Sherman Act in the House is itself curious, since Republicans were the majority party in the chamber. The most likely explanation is that Republican leaders were worried about defections in their agrarian ranks. Indeed, the initial incorporation of the Bland Amendment into the Sherman Bill could not have occurred without Republican votes, since Democrats were in the minority. Thus, with Culberson managing the bill, Democratic opposition might be weakened, thereby forestalling a cross-party agrarian coalition in support of a more aggressive antitrust law. Hemorrhaging in the Republican ranks would be reduced (because futile) and, if not reduced, might still prove less threatening to the conservatively framed Sherman provisions (if Democratic opposition was effectively quelled). What motivated Culberson to accept the assignment, however, is less clear. However, it should be remembered that the Speaker of the House controlled both minority and majority committee assignments in this period. In addition, Republican Speaker Thomas Brackett Reed was nothing if not purposive in his approach to organizing the chamber. Reed did not brook opposition to party policy goals lightly, and a Democrat with policy ambitions (especially the ranking member of a powerful committee) would surely recognize that to incur the Speaker's displeasure would place an insurmountable obstacle in between himself and committee policy influence. All this notwithstanding, it should be observed that, in the end, Culberson cast his vote with other Democrats in support of the Bland Amendment, underscoring the methodological point made earlier in this section that legislative statements and legislative behavior can differ widely.
34. Congressional Record 51st Cong., 1st sess., vol. 21 pt. 6, 5951.
35. Ibid. Culberson's emphatic position at this juncture in the proceedings is strangely at odds with statements made earlier, when the Sherman Bill was first reported to the House. In response to repeated questioning about the reach of its provisions, Culberson was similarly emphatic that the legislation's final meaning was a matter that would be determined in the courts: "[j]ust what contracts, what combinations in the form of trusts, or what conspiracies will be in restraint of trade or commerce mentioned in the bill will not be known until the courts have construed and interpreted this provision." Culberson underscored the point: "I wish to be understood, Mr. Speaker, . . . that I do not know, nor can any man know, just what contracts will be embraced by this section [Section 1] of the bill until the courts determine [the question]." Congressional Record 51st Cong., 1st sess., vol. 21 pt. 5, 4089. Culberson's statements against the Bland Amendment are even more curious because they stand in opposition to the Texan's well-documented hostility toward federal judicial discretion in matters involving big business. Culberson's antagonism stemmed from the federal courts' liberal use of the removal power to take cases involving interstate corporations out of state courts and into more friendly federal venues. From 1877 to 1896 Culberson introduced legislation in the House to narrow the removal power. On his efforts, see Tony A. Freyer, Forums of Order: The Federal Courts and Business in American History (Greenwich, Conn.: JAI Press Inc., 1979), 130-36. As already noted, while Culberson's stated belief that the Bland Amendment was unnecessary to limit the interpretative discretion of the federal courts runs contrary to his open hostility to federal judicial discretion, his vote against receding from the Bland Amendment drew him back into line with his personal convictions.
36. Ibid. Culberson's emphatic position at this juncture in the proceedings is strangely at odds with statements made earlier, when the Sherman Bill was first reported to the House. In response to repeated questioning about the reach of its provisions, Culberson was similarly emphatic that the legislation's final meaning was a matter that would be determined in the courts: "[j]ust what contracts, what combinations in the form of trusts, or what conspiracies will be in restraint of trade or commerce mentioned in the bill will not be known until the courts have construed and interpreted this provision." Culberson underscored the point: "I wish to be understood, Mr. Speaker, . . . that I do not know, nor can any man know, just what contracts will be embraced by this section [Section 1] of the bill until the courts determine [the question]." Congressional Record 51st Cong., 1st sess., vol. 21 pt. 5, 4089. Culberson's statements against the Bland Amendment are even more curious because they stand in opposition to the Texan's well-documented hostility toward federal judicial discretion in matters involving big business. Culberson's antagonism stemmed from the federal courts' liberal use of the removal power to take cases involving interstate corporations out of state courts and into more friendly federal venues. From 1877 to 1896 Culberson introduced legislation in the House to narrow the removal power. On his efforts, see Tony A. Freyer, Forums of Order: The Federal Courts and Business in American History (Greenwich, Conn.: JAI Press Inc., 1979), 130-36. As already noted, while Culberson's stated belief that the Bland Amendment was unnecessary to limit the interpretative discretion of the federal courts runs contrary to his open hostility to federal judicial discretion, his vote against receding from the Bland Amendment drew him back into line with his personal convictions.
37. Congressional Record 51st Cong., 1st Sess., vol. 21 pt. 6, 5983.
38. Republican and Democratic votes do not sum to total vote because of third party members. There were fifty-six Democrats and sixty-five Republicans who did not vote on the Bland action.
39. For purposes of discussion, this article defines "western states" to be the states of the Great Plains (West North Central), the Mountain region, and the Far Pacific.
40. From eighteen of seventy-six Senate seats in 1889 to thirty-two of ninety seats in 1892.
41. The political implications of this structural change in western representation are explored with great imagination in Charles Stewart III and Barry R. Weingast, "Stacking the Senate, Changing the Nation: Republican Rotten Boroughs, Statehood Politics, and American Political Development," Studies in American Political Development (1992).
42. Statistics reported here are based on data found in the Statistical History of the United States from Colonial Times to the Present [prepared by the United States Bureau of the Census] (New York: Basic books, Inc., 1975), Series Y 220-71, "Apportionment of Membership in House of Representatives, by States, From Adoption of Constitution to 1970," 1085.
43. The following discussion is drawn from Scott C. James, Presidents, Parties and the State: A Party System Perspective on Democratic Regulatory Choice, 1884-1936 (New York: Cambridge University Press, 2000, chap. 2. The impact of this Gilded Age electoral dynamic upon Justice Department enforcement activity in the area of African American voting rights is explored in Scott C. James and Brian L. Lawson, "The Political Economy of Voting Rights Enforcement in America's Gilded Age: Electoral College Competition and the Federal Election Law," American Political Science Review 93 (1999): 115-131.
44. The following discussion is drawn from Scott C. James, Presidents, Parties and the State: A Party System Perspective on Democratic Regulatory Choice, 1884-1936 (New York: Cambridge University Press, 2000, chap. 2. The impact of this Gilded Age electoral dynamic upon Justice Department enforcement activity in the area of African American voting rights is explored in Scott C. James and Brian L. Lawson, "The Political Economy of Voting Rights Enforcement in America's Gilded Age: Electoral College Competition and the Federal Election Law," American Political Science Review 93 (1999): 115-131.
45. Official Proceedings of the Democratic National Convention held in Chicago, III., July 7th, 8th, 9th, 10th and 11th, 1896. (Logansport, IN: Wilson, Humphreys & Co., 1896), 200, 207.
46. Burnham, "The System of 1896: An Analysis," 158.
47. On agrarian discontent and the antimonopoly impulse, see Thorelli, Federal Antitrust Policy, 58-62; Sanders, "Industrial Concentration, Sectional Competition, and Antitrust Politics in America, 1880-1980," 151-58; This paragraph draws on Steven L. Piott, The Anti-Monopoly Persuasion: Popular Resistance to the Rise of Big Business in the Midwest (Westport, Conn.: Greenwood Press, 1985).
48. On agrarian discontent and the antimonopoly impulse, see Thorelli, Federal Antitrust Policy, 58-62; Sanders, "Industrial Concentration, Sectional Competition, and Antitrust Politics in America, 1880-1980," 151-58; This paragraph draws on Steven L. Piott, The Anti-Monopoly Persuasion: Popular Resistance to the Rise of Big Business in the Midwest (Westport, Conn.: Greenwood Press, 1985).
49. On agrarian discontent and the antimonopoly impulse, see Thorelli, Federal Antitrust Policy, 58-62; Sanders, "Industrial Concentration, Sectional Competition, and Antitrust Politics in America, 1880-1980," 151-58; This paragraph draws on Steven L. Piott, The Anti-Monopoly Persuasion: Popular Resistance to the Rise of Big Business in the Midwest (Westport, Conn.: Greenwood Press, 1985).
50. This paragraph draws on Piott, The Anti-Monopoly Persuasion, 26-28.
51. The St. Louis Post-Dispatch is quoted in Piott, The Anti-Monopoly Persuasion, 28.
52. J. D. Forrest, "Anti-Monopoly Legislation in the United States," The American Journal of Sociology (1896): 420.
53. The dependent variable is coded "1" if a state has an antitrust statute or constitutional provision mandating free competition and "0" if it does not. Independent variables are specified as follows: SOUTHWEST is a dummy variable which codes a state "1" if it is located in one of the following regions: West North Central, Mountain, Pacific or South. If not, the state is coded "0." NEW STATES is coded "1" if a state was admitted to statehood between the years 1889-1896 and "0" otherwise. The agrarian variable FARMERS is a continuous variable that measures the dollar value of agricultural output in a state according to figures found in the 1890 U.S. census. Finally, POPULISM is a continuous variable that measures the size of a state's popular vote for Peoples' Party presidential candidate James B. Weaver in 1892.
54. Evidence of this oversight by Justice Department political elites is found in the remarks of William Howard Taft, Solicitor General under Benjamin Harrison. Taft instructed one U.S. Attorney, who had inquired about his discretion to initiate Sherman Act suits, that "specific authorization must be sought from the Attorney General for the institution of each case" (Thorelli, Federal Antitrust Policy, 374).
55. Figures represent both Republican and Democratic prosecutions. While I am arguing that administration officials acceded to an agrarian interpretation of the Sherman Act for electoral reasons, it is not necessary to conclude that they sincerely sought to implement an aggressive enforcement policy premised upon this interpretation. It may well be that government officials were confident that the agrarian interpretation would be readily defeated in the courts (which it was - at least until 1897). Consistent with such a possibility, it will be recalled that it was Richard Olney who brought the E. C. Knight case for argument before the Supreme Court, even though he had no confidence in Solicitor General's claim that production monopolies were reachable under the antitrust law. In addition, administration officials could embrace an agrarian interpretation of the law for electoral reasons and still limit its effect through minimal enforcement actions, which to a large extent they did.
56. United States v. Jellico Mountain Coal and Coke, 43 F. 898 (1890).
57. Albert H. Walker, A History of the Sherman Act (Westport, Conn.: Greenwood Press, Publishers, 1980 [1910]), 63; Letwin, Law and Economic Policy in America, 106-8.
58. Albert H. Walker, A History of the Sherman Act (Westport, Conn.: Greenwood Press, Publishers, 1980 [1910]), 63; Letwin, Law and Economic Policy in America, 106-8.
59. Olney's statement, once again, indicates the degree to which interpretive oversight was exercised by Justice Department political elites in Sherman Act cases.
60. Annual Report of the Attorney General, xxvii.
61. Ibid., xxvii.
62. William Letwin, Law and Economic Policy in America: The Evolution of the Sherman Antitrust Act (Chicago: University of Chicago Press [Phoenix Edition], 1981), 121.
63. See U.S. Congress. House of Representatives. 52nd Congress, 2d sess. Report 2618; ibid. 52nd Congress, 1st sess., Miscellaneous Documents 215; and ibid. 52nd Congress, 1st sess., Executive Documents 225.
64. See U.S. Congress. House of Representatives. 52nd Congress, 2d sess. Report 2618; ibid. 52nd Congress, 1st sess., Miscellaneous Documents 215; and ibid. 52nd Congress, 1st sess., Executive Documents 225.
65. See U.S. Congress. House of Representatives. 52nd Congress, 2d sess. Report 2618; ibid. 52nd Congress, 1st sess., Miscellaneous Documents 215; and ibid. 52nd Congress, 1st sess., Executive Documents 225.
66. U.S. Congress. Senate. 53rd Congress, 2d sess., Executive Documents no. 101.
67. Ibid.
68. Letwin, Law and Economic Policy in America, 122.
69. Ironically, in his first annual report to Congress, Olney cited two labor cases successfully tried under the Sherman Act "as strikingly illustrating the perversion of a law from the real purpose of its authors" (see Annual Report of the Attorney General for 1893).
70. Writing to President Cleveland on May 21, 1895, W. H. Merrill, chief editorial writer of the New York World, insisted that "one case successfully prosecuted against a trust would greatly help the Administration and the Democratic party" (W. H. Merrill to Grover Cleveland, in The Letters of Grover Cleveland, ed. Allan Nevins (Boston and New York: Houghton Mifflin Company, 1933), 395, 396. As it happened, Merrill's letter was penned only a week before the death of Secretary of State Walter Gresham, a position the president moved to fill by appointing the conservative Olney to succeed Gresham, extending the now-vacant attorney general's office to the less dogmatic Westerner Judson Harmon.
71. Treating the 1894 elections as a watershed for Democratic political strategy may also help account for the divergent interpretive positions on the Sherman Act adopted by Peckham and another Cleveland Supreme Court appointee, Edward Douglass White (author of the minority dissent in Trans-Missouri, as well as the Court's 1911 rule of reason decisions). White's appointment (like Olney's) predated the disastrous midterm elections of 1894, while Peckham's appointment (like Harmon's) postdated that catalytic event.
72. On the fusion of Democrats with the People's party in 1896, see John D. Hicks, The Populist Revolt: A History of the Farmers' Alliance and the People's Party (Lincoln: University of Nebraska press, 1931).
73. Leon Burr Richardson, William E. Chandler: Republican (New York: Dodd, Mead & Company, 1940), 497.
74. Letter from William E. Chandler to William R. Morrison, August 17, 1895, in U.S. Congress, Senate, 54th Congress, 1st sess., Executive Documents no. 39, 6.
75. Letwin, Law and Economic Policy in the United States, 133.
76. Letter from William E. Chandler to William R. Morrison, August 31, 1895, in U.S. Congress, Senate, 54th Congress, 1st sess., Executive Documents no. 39, 9.
77. Piott, The Anti-Monopoly Persuasion, 19.
78. Jeffrey Ostler, Prairie Populism: The Fate of Agrarian Radicalism in Kansas, Nebraska, and Iowa, 1880-1892 (Lawrence: University of Kansas Press, 1993), 125-26. At the 1890 Kansas Republican State Convention, one party leader warned that "'a slight mistake might end the old republican party.' The 'old ship is leaking badly,' he declared, 'and men are wanted at the pumps who can work them successfully'" (ibid., 125).
79. Indeed, in 1892, in the aftermath of the Trans-Missouri proceedings, Ady's popularity was such that his name would be placed in nomination for the Senate by state Republicans. Ady would lose the nomination struggle to John Martin, the Democratic-Populist nominee and unsuccessfully petition the U.S. Senate to investigate Martin's appointment for procedural irregularities. See, Peter H. Argersinger, Populism and Politics: William Alfred Peffer and the People's Party (Lexington: The University Press of Kentucky, 1974), 151-58; and U.S. Congress, Senate, 53rd Congress, Special Session, Miscellaneous Documents, no. 37, "Memorial of Joseph W. Ady."
80. On January 7, 1891 Ady wrote the Attorney General, acknowledging receipt of your letter of December 24, directing me to file the bill heretofore prepared and submitted to you in case of United States v. The Trans-Missouri Freight Association, and I have the honor to say that I filed the same on the 6th instant and process has been issued for defendants who may be served in this State. (Joseph W. Ady, U.S. Attorney, Kansas, to William H. Miller, Attorney General, January 7, 1891, General Records of the Department of Justice, Record Group 60, National Archive and Records Administration)
81. "To determine what combinations and associations are intended to be prohibited by that act it should, of course, be read in the light of the common law." (Joseph W. Ady, U.S. Attorney, Kansas, to William H. Miller, Attorney General, December 16, 1891, General Records of the Department of Justice, Record Group 60, National Archive and Records Administration). In the same letter, Ady advanced several "propositions" to the attorney general, each of which he believed exposed the illegality of combination's articles of association: First, It [sic] suppresses competition in a business the nature of which is public and of vast importance to the people at large. Second, [the railroads that comprise the combination are] practically banding themselves together and saying: we will not work for less than a stipulated price and neither shall any of our members work for a less price. This has always been criminal. A man may charge his own price for his own services, but when several persons band themselves together and say that one of their own number shall not work for less rate, it exceeds the power of any individual or any number of individuals.
82. Charles W. McCurdy, "Justice Field and the Jurisprudence of Government-Business Relations: Some Parameters of Laissez-Faire Constitutionalism, 1863-1897," Journal of American History 61 (1975): 973.
83. McCurdy, "Justice Field and the Jurisprudence of Government-Business Relations," 971.
84. Owen M. Fiss writes that Peckham brought to the Supreme Court a "fear of the rapacious tendencies of 'combinations of capital,'" sensibilities largely born of the economic tumult that marked the industrialization process in New York state (Troubled Beginnings of the Modern State, 1888-1910 [New York: Macmillan Publishing Company, 1993] p. 118). It will be recalled from Table 2 that in 1896 New York was the only eastern state with an antitrust law mandating free and unrestricted competition in the marketplace, suggesting the political power of small business interests in that state. In this way, Peckham could have been in step with some of the goals of Western antimonopolism, even if it was for experientially different reasons.
85. United States v. American Tobacco (1908), 164 F. 700, 701.
86. Theodore Roosevelt, "Sixth Annual Message," in A Compilation of the Messages and Papers of the Presidents, ed. James D. Richardson (Washington, D.C.: Bureau of National Literature, 1911), 7421, 7420.
87. 171 U.S. 505; 175 U.S. 211
88. Sklar, Corporate Reconstruction of American Capitalism, 368-69. In addition, a more vigorous enforcement policy squared with Taft's conception of the president's constitutional obligation "to take care that the laws are faithfully executed." Equally important, Taft was sure that "prosecutions under the Sherman Act could go much farther than they had under Roosevelt against improper corporate practices and unwarranted combinations without restoring the old competitive regime or endangering the new corporate order" (Ibid).
89. The claims made in this paragraph receive a more extensive treatment in Scott C. James, "Building a Democratic Majority: The Progressive Vote and the Federal Trade Commission, Studies in American Political Development 9 (1995): 331-85; and James, Presidents, Parties, and the State: A Party System Perspective on Democratic Regulatory Choice, 1884-1936 (New York: Cambridge University Press, 2000 [forthcoming]), chap. 3.
90. The claims made in this paragraph receive a more extensive treatment in Scott C. James, "Building a Democratic Majority: The Progressive Vote and the Federal Trade Commission, Studies in American Political Development 9 (1995): 331-85; and James, Presidents, Parties, and the State: A Party System Perspective on Democratic Regulatory Choice, 1884-1936 (New York: Cambridge University Press, 2000 [forthcoming]), chap. 3.
91. The Commoner, January 12, 1912, 2.
92. National Party Platforms, 1840-1960, compiled by Kirk H. Porter and Donald Bruce Johnson (Urbana: The University of Illinois Press, 1961).
93. The provisions of the Sherman law definitions bill are reproduced in the New York Times, January 23, 1914, 3.
94. Robert H. Wiebe, "The House of Morgan and the Executive, 1905-1913." American Historical Review 65 (1959): 49-60.
95. Sklar, The Corporate Reconstruction of American Capitalism, 185.
96. Theodore Roosevelt, "Sixth Annual Message," 7421.
97. The classic study of efforts by progressive reformers to construct a national administrative state is Stephen Skowronek, Building a New American State: The Expansion of National Administrative Capacities, 1877-1920 (New York: Cambridge University Press, 1982).