Original Anti-trust Laws in Large Degree Superseded.The Sherman Act and the Wilson Tariff Law are not, however, entitled to the same prestige which they formerly possessed as the sole exponents of Anti-trust legislation. Owing in large measure to the inclusion in party platforms of demands for enlargement of the scope of the Anti-trust laws, the second session of the Sixty-third Congress, after much agitation and the consideration of numerous laws proposed at that and previous sessions, at last yielded to the public wish by combining in one statute the distinctive features of five proposed laws.12 It was in this manner that the Clayton Law, which its title declares to be supplementary to existing laws against unlawful restraints and monopolies (Antitrust laws), came into being. We have seen that by its terms a definition of "commerce" is established; price discrimination, conditional or "tying" contracts, stock-ownership by corporations direct or through holding companies tending to materially lessen competition, and interlocking directorates (after two years), are declared unlawful; the statute of limitations is suspended in Anti-trust actions brought by private persons, during the pendency of governmental civil or criminal prosecutions for similar acts; the crimes of corporations committed against Anti-trust laws are made offences of directors, officers and agents participating therein or consenting thereto; means are provided whereby individuals may enforce their rights thereunder by restraining orders; and the courts are clothed with ample judicial power to enforce those orders by contempt proceedings where neglect or willful disobedience can be shown. A statute so comprehensive and apparently so well qualified to prove itself effective in operation, presents numerous advantages over the generalities of the Sherman Law, besides by direct legislation overruling certain limitations by judicial construction which have grown out of the litigations resulting therefrom. The Clayton Law, in brief, offers simple and certain means of preventive relief or recoupment of injuries where the complainant fears or experiences damage from prohibited acts of interference in business. The didactic phrasing of the Sherman Law seems calculated to challenge argument while leaving the true meaning still a doubtful matter,—a characteristic which is doubtless responsible 12 See statutes enumerated, note 9, page 138, supra. for the complicated nature of the decisions thereunder. And this feature is likewise responsible for the unwillingness and hesitation of individuals to sail upon those-in part at least-uncharted seas. Official Body Created to Enforce Anti-trust Laws.-Preceding the Clayton Law by a matter of weeks, the Federal Trade Commission Act was passed by Congress for the avowed purpose of supplying a permanent official body whose main function should be to enforce the Anti-trust laws,-both by self-instituted investigations and by exercising its judicial functions in hearing and determining charges preferred by individuals. Where the complainant discloses a meritorious cause, it affords complete relief, subject to a court review upon the same facts educed upon the trial. Inquiries into corporate methods at its own suggestion, or upon the direction of the President or either House of Congress, and, especially, proceedings to prevent and restrain “unfair methods of competition in commerce," are additional features of the Federal Trade Commission's power under the creating act. It is true that there is some indefiniteness in that measure which leaves it in doubt whether the last-mentioned proceedings shall be instituted solely upon information collected by the Commission, or whether complaints by individuals will be recognized and acted upon; but obviously some documentary or other satisfying basis for action must exist. The statute reads "Whenever the Commission has reason to believe any person, partnership, or corporation has been or is using any unfair method of competition in commerce, and it shall appear to the Commission that a proceeding by it in respect thereof would be to the interest of the public," it shall proceed to issue and serve a complaint upon the party charged with wrongdoing. It is the means of knowledge, the foundation for the "reason to believe" which was left indefinite by the law-makers. This point aside-and it is one which no doubt will be obviated by the Rules of Practice that the Commission shall from time to time adopt13 the statute is filled full of promise of relief by way of prevention. With that body in com 13 For requirements upon application for issuance of a complaint,-see Rule II, page 232, post. plete operation, the occasions for employing the means of relief afforded by the Sherman Law are few and probably will grow less. Criminal Prosecutions Obviated.-The ounce of prevention has been supplied by this supplement of the Anti-trust laws-the Clayton Law-and its associate measure, the Federal Trade Commission Act. It is presumed they will fulfil their allotted purpose by stopping at the source numerous complaints that otherwise would grow into serious wrongs which in their turn would justify the bringing of criminal actions under the Sherman Law. It may well be assumed the Sherman Act will then to a great extent become functus officio. Supplementary Anti-trust legislation has been provided by Congress to attain the desired ends by more direct or less obscure means; and the effort will be crowned with at least partial success when the necessity for construction so apparent in the Sherman Law, is obviated thereby. However that may be and whether the old or the new lines of approach are found in practice to be preferable in a given case, litigants will perceive they still preserve all their previously existing rights under the former practice; for it is specifically stated in Section II, of the Federal Trade Commission Act, that nothing therein contained shal Ibe construed to prevent, interfere with, alter, modify or repeal any portion of any Anti-trust law. Punishment Prescribed; Rule of Construction Applicable. -Under Sections 1 and 2 of the Sherman Law, combinations and conspiracies in restraint of trade-also monopolies are each liable to the same penalty, viz: a fine not exceeding $5,000, with imprisonment for one year. The Northern Securities and Addystone cases11 each characterizes the Sherman Law as a criminal statute, and states it creates a new offense by penalizing what was not classified among criminal acts under the common law. The former decision holds that the strict construction required in applying criminal laws does not warrant a narrow, technical or forced construction of words, to make them include or exclude particular cases; but the controlling factor must be the legislative intent, 4. WILSON TARIFF LAW. Provides Anti-trust Regulation of Foreign Trade. The pro 14 U. S. v. Northern Securities Co., 193 U. S. 197; U. S. v. Addystone Pipe and Steel Co., 85 Fed. 171,-affirmed 175 U. S. 211. visions of this act (28 Statutes at Large, 570) pertaining to Antitrust legislation are contained in Sections 73 as amended, 74, 75, 76 as amended, and 77. The amendments are added by the Act of February 12, 1913 (37 Sta. 667). For text of Sections as amended, see Appendix D, pages 282-3. The above sections contained in the Wilson Tariff Law, enacted August 4, 1894, were continued by the Dingley Tariff Act, of 1897. This law relates solely to foreign trade. Sherman Law Provisions Reappear Therein.-These provisions are in form or in substance adapted from corresponding sections of the Sherman Act. The changes are mostly verbal. Section 73, which is the essential feature of these provisions, appears never to have come before the courts. Similar requirements are embodied in an amplified form in Sections 1 and 2 of the Sherman Act, and all the actual cases seem to have been brought under the latter law. Section 6 of the Sherman Act providing for forfeiture of goods, etc., reappears in substance in Section 76. The connection between these five sections of the Wilson Tariff Act, and the Sherman Law, is so intimate that these provisions have an important place in Anti-trust legislation, even though they have not come directly before the courts in reported cases. IMMUNITY OF WITNESS UNDER FEDERAL TRADE COMMISSION ACT, AND THE ANTI-TRUST LAWS. 1. Immunity Proceeds from Recognition of Constitutional Rights. 2. Statutes Recognize said Rights. 3. Commission's Orders do not Confer Immunity. 4. Privilege Does Not Extend to Corporations. 5. Purpose of Privilege Stated. 6. Actual Jeopardy Must be Shown. 7. Witness Must Claim Privilege. 8. Enquiring Court or Body Must Possess Jurisdictional Powers. 9. Further Consideration of Immunity Provisions. 10. Application of Principle. 11. Rulings in Immunity Cases. 1. IMMUNITY PROCEEDS FROM RECOGNITION OF CONSTITUTIONAL RIGHTS. Freedom to Contract a Qualified Right.-Liberty of conduct and freedom to contract are qualified and not absolute rights. Those rights imply liability to reasonable regulations and only insure the citizen against restraint exercised in an arbitrary manner. In both of these departments of life the public welfare,—represented in matters legal by the so-called "police power" of the State,-writes the supreme code; and every right short of those which are absolute must yield and take second place. Immunity has been described as freedom from what would otherwise have been a duty or burden. Of course, "immunity" in the legal sense is relief from the criminal prosecution that might result from the self-incriminating testimony of a witness called at the instance of the State and in its behalf. Such testimony, however, would be privileged under the Fifth Amendment; hence the State confers "immunity" from criminal prosecution for matters thus disclosed, and by that expedient overcomes the right of the proposed witness to remain silent.1 Accordingly, immunity is the recognition of an existing right, -in fact is pro tanto an acknowledgment that there is a class of I Lonas v. State, 3 Heisk., (Tenn.) 287, 306,-cited in 21 "Cyc," 1736. ta For immunity provisions generally, see Appendix H, pages 289, 290. |