lawyers, notably the late James C. Carter, then leader of the New York
Bar, who predicted that sooner or later it must be abandoned as
untenable. Their protests were well founded. The theory, carried to its
logical conclusion, would have prohibited a great variety of
transactions theretofore deemed reasonable and proper, and would have
brought large business to a standstill. As a matter of fact, it was
never carried to its logical conclusion, and six years later it was
expressly repudiated by Justice Brewer; one of the five, in the course
of his concurring opinion in the Northern Securities case.[2] Justice
Brewer said that while he believed the Trans-Missouri case had been
rightly decided he also believed that in some respects the reasons given
for the judgment could not be sustained.

Instead of holding that the Anti-Trust Act included all
contracts, reasonable or unreasonable, in restraint of
interstate trade, the ruling should have been that the
contracts there presented were unreasonable restraints of
interstate trade, and as such within the scope of the Act....
Whenever a departure from common-law rules and definitions is
claimed, the purpose to make the departure should be clearly
shown. Such a purpose does not appear and such a departure was
not intended.

[Footnote 1: _United States v. Trans-Missouri Association_, 166 U.S.,
290.]

[Footnote 2: _Northern Securities Company v. United States_, 193 U.S.,
197.]

Nevertheless, the troublesome question remained, to plague lawyers and