and that at night this wraith-haunted lake of the Dismal Swamp

"where all night long by a firefly lamp
She paddles her white canoe,"

must be positively uncanny. In the mind's eye the characteristics of the wild region become distorted until it represents the apotheosis of desolation. This suggestion becomes accentuated as the eye wanders to the shoreward shallows, where, standing grim and gaunt, are seen the naked and time-mangled corpses of giant cypresses long since dead. As a rising bank of dark cloud throws the lake into deep shadow, mystic words come to me like the burden of a song:

"It was hard by the dim lake of Auber,

In the misty mid region of Wier-
It was down by the dank tarn of Auber

In the ghoul haunted woodland of Wier."

In the ruined cabin I met the old man who had come down to the lake to fish by way of the Jericho Canal. The roughness of the water spoiled his sport for the day, but he and his companion, a white-haired negro, were preparing to camp in the hut for the night, hoping for better luck next morning. He told me that the lake was full of chub. He knew a gentleman, he said, who came to the lake every year and spent a week or more there drinking its waters as an antidote to malaria. It made him immune, he said. The negroes and woodmen, he told me, who live in the Dismal Swamp and drink its waters continually, never have malaria. According to the old man, the waters of the swamp and lake constitute a beneficial tincture of medicinal herbs.

After this conversation, I wandered off into the swamp forest for awhile, alone, as no amount of persuasion would induce the sailor to go with me. He remarked that he hadn't lost any snakes and did not propose to look for them. I might easily have lost myself in the strange tangle of the morass, but for the proximity of the lake and getting my bearings from the direction of the wind. My most active impression, while alone in the depths of the swamp, was the fear of sinking in the morass, together with a vague and indefinable sense of dread.

It was a place in which the imagination plays strange tricks with its victim. Retracing my way to Jericho Locks, I found the practical minded sailor indulging in a few emphatic remarks sotto voce. It would soon get dark, he said, and serpents-whom he designated a bunch of poisonous grafters-are nocturnal in their habits. He admitted that poetry was all very well in its way, and that, doubtless, as a swamp poet, Poe had Tommy Moore skinned

a mile. We had eaten nothing since daylight and could not continue to live on tobacco, or perpetually stave off the pangs of hunger by taking new reefs in our belts. His peroration-so far as translateable-was to the effect that it was to be the nearest tall hotel for his.

The fact that the nearest hotel was twelve miles away by land and water did not, however, depress us as we started to return over our course of the morning. Fatigue and hunger lengthened the miles intolerably, but the unusual beauty of the place grew with the setting of the sun. The reflection of the trees in the water was mellowed by the warm and tender tints not possible in the garish light of midday. Shadows became deeper and longer and the forest took on fantastic shapes. I caught the bright whistle of a red bird and replying occasionally in kind, the unseen songster accompanied us for miles, cheering us on our way.

As we neared the edge of the forest, the crimson and gold on the water's surface deepened into violet and purple; then melted into sombre gray. The wind died out, the red bird ceased his song and nothing stood between the outer world and the depth of the dank forest but silence-a silence so dense that the dip of the paddles in the stream carried far, and the ticking of a watch became painfully audible. Even the garrulous sailor was for the time eloquent with silence. The forest now no longer possessed definite shape or form.

The vaguely outlined trees surrounded us as an army of weird, gray shadows, fading into a vast and fearsome phantasmagoria that the imagination did not dare to follow. Innumerable fireflies, like souls released from cypress trees, began to appear, their fitful gleam of tremulous light making a beautiful mockery of illumination. It was well that we were emerging from the forest of the Dismal Swamp, for night had fallen.

The Shibboleth of

"Restraint of Trade."

By GILBERT HOLLAND MONTAGUE.

T

HE phrase "restraint of trade" which we read on every side in the press and which was a universal slogan in the late political campaign has been doing duty for scores of things outside its actual meaning. To mention in a stump speech the name of a "trust" and follow that with the statement that it was acting in "restraint of trade," was always sure of a salvo of indignant disapproval of the "trust"; although any schoolboy could tell and every listener knew that the great effect of the combination which the speaker was hammering had been to increase and extend trade in every direction. Of the four hundred "trusts" now flourishing in the United States, all of them organized in good faith under the laws of the States, not one has, in actual experience, brought about a reduced output for its product. Where they have survived the natural vicissitudes of business (and "trusts" invariably fail like other businesses if they are mismanaged), the result has been a vigorous onpush in manufacture and commerce. But your stump speaker and your profound editor will tell you that the whole, healthy process of combination is against the law, and as plainly a thing of hoofs, horns and spiked tail as any demon in a medieval tale. Though you know better, he will tell you it is in "restraint of trade."

Our President, moreover, who has been understood by most people to be in deadly opposition to "trusts" and combinations, evidently has his misgivings. In his latest message to Congress he says:

"The actual working of our laws has shown that the effort to prohibit all combination, good or bad, is noxious where it is not ineffective," which means that the less of such sweeping laws the better. He goes on: "Combination of capital, like combination of labor, is a necessary element of our present industrial system. It is not possible completely to prevent it, and if it were possible, such complete prevention would do damage to the body politic." It would indeed. It would "restrain trade" with a vengeance. It would make chaos the condition, and universal ruin the result to all our great industries.

The Shibboleth of "Restraint of Trade."

19

There are, for instance, now pending against the Standard Oil Company four suits brought by the States of Missouri, Ohio and Texas, and by the United States, to enjoin the company from continuing business. The ground of each suit is the allegation that the Standard Oil Company is acting in “restraint of trade." The petition in the federal suit prays that the Standard Oil Company of New Jersey (which, in 1899, acquired all the stock of the subsidiary corporations) and seventy other corporations and partnerships, and seven prominent directors of the company, be adjudged an unlawful combination acting in "restraint of trade." The question, therefore, is pertinent; What, in the dry legal import of the phrase, is "Restraint of Trade?"

Scarcely a generation after Chaucer's death, English judges had begun to use the phrase "restraint of trade." At a time when medieval society was disintegrating, and vagrancy and lack of employment seemed increasing dangers, the Plantagenet courts looked with disfavor upon any contract by which an active artisan might be withdrawn from trade and possibly might become a public charge, or might diminish, by his withdrawal from business, the amount of employment, and the output of commodities useful to the public. Accordingly, the rule was stated that no contract, by which a person bound himself not to exercise his trade, would be enforced by the courts. The result of this rule was to prevent the enforcement of contracts, by which a tradesman attempted to sell the "good will" of his establishment and to refrain from starting a similar business within a fixed time or within a specified locality.

The unfairness of this rule was soon observed and the courts began to uphold contracts that restrained competition for merely short periods of time or within narrowly limited localities. During the last century, the arbitrary test of limitations of time and space was abandoned, and the test applied by the law was simply the reasonableness of the restriction. A contract to sell a modest tailoring business was upheld, although the seller agreed not to open a rival shop in the same city; but if the seller agreed not to engage in a similar business in the same country, the contract was unenforceable. A contract to sell a machine gun factory, which sold its product to the governments of many nations, was upheld, although the seller agreed never to engage in a similar business at any time or in any place. Contracts which imposed merely reasonable restraint upon trade were enforceable at law. Contracts which effected unreasonable restraint of trade were not criminal, nor were they cause for punishing the parties to the contract, but they were unenforceable by the courts. Such was the common law regarding "restraint of trade" until the first anti-trust legislation.

Let us see what that legislation was.

In 1889 Kansas, Maine, Michigan, Missouri, Nebraska, North Carolina, Tennessee, Texas and the Territories of Idaho, Montana and North Dakota passed anti-trust laws; and the new States of Washington and Wyoming introduced similar provisions into their constitutions. In 1890 Iowa, Kentucky, Louisiana, Missouri and South Dakota passed anti-trust laws. In 1891 Kentucky and Missouri introduced anti-trust provisions into their constitutions, and Alabama, Illinois, Minnesota and the Territory of New Mexico enacted similar laws. New York and Wisconsin followed in 1892; and in 1893, California forbade combinations in live stock, and Nebraska forbade combinations in coal and lumber. Thirty States and two Territories subsequently passed such laws, and in seventeen States anti-trust provisions were inserted in the State constitutions.

In 1890, Congress passed the Sherman anti-trust act, which declared illegal, "every contract, combination in the form of trust or otherwise, or conspiracy in restrainst of trade or commerce among the several States or with foreign nations." A summary of this legislation will show the extent to which the definition and legal consequences of "restraint of trade" were stretched by statute.

In twenty-one States it was criminal for two or more persons to enter into an agreement-regardless of whether it were reasonable or unreasonable -whereby free competition in production and sale was prevented. In seventeen States it was criminal conspiracy for two or more persons to agree to regulate the quantity or the price of any article to be manufactured, mined, produced, or sold-regardless of whether prices were raised or lowered. In sixteen States, it was criminal for two or more persons to attempt to monopolize any commodity. In Missouri, it was criminal conspiracy to maintain a trust, pool, combine, agreement, confederation, or understanding to regulate prices or to fix the premium for fire insurance. In Mississippi, it was criminal conspiracy not only to regulate prices, but also for two or more persons to settle the price of an article between themselves, or between themselves and others.

In Texas these practices were punished by imprisonment of one to ten years in the penitentiary, by a fine of $200 to $5,000 for each day of the offence, or by both; and if the offender were a corporation, by a fine of $200 to $5,000 and by forfeiture of its franchise.

"Reasonable" and "unreasonable" were mixed up regardless of the voice of history or the dictates of common sense. No provision was too drastic for an "anti-trust" law.

Under the Sherman anti-trust act, every person engaged in "restraint of