mission. That body in consequence can exert its important powers under a new dispensation-untrammelled by the necessity for carrying through a long and complicated series of litigations The solution of this difficult and intricate question would otherwise necessarily involve uncertainty; whereas its whole attention henceforth can be devoted to the settlement of new problems, and to the administrative duties it is called upon by law to perform.

14. DEFINITIONS OF “COMMERCE.”

Anti-trust Definitions of "Commerce" Compared.-While reference is being made to "commerce" as regulated by the Sherman Law, it may be useful to turn aside for a moment to notice the defining words contained in the more recent Anti-trust legislation. In Section 4, of the Federal Trade Commission Act, there appears an official designation of the meaning of that word, when found in this particular statute:

"Commerce means commerce among the several States or with foreign nations, or in any Territory of the United States or in the District of Columbia, or between any such Territory and another or between any such Territory and any State or foreign nation, or between the District of Columbia and any State or Territory or foreign nation." The definition in Section I of the Clayton Law is of the same tenor, excepting that it includes "trade or commerce," and the scope of commerce involved in the regulating statute is extended to "any insular possession or other places under the jurisdiction of the United States * Provided that nothing in this

Act shall apply to the Philippine Islands."

Comparison of these provisions with the terms of Sections 1, 2, and 3 of the Sherman Law, discloses at a glance that the jurisdiction under the Federal Trade Commission Act is tantamount to that under the Sherman Law, so that the preventive statute covers the same area as the punitive law; whereas protection against price discrimination, "tying" or conditional contracts, control of competing corporations by stock-ownership, and the various other features of the Clayton Law extend to the limits of the entire region under protection of our flag, excepting only the Philippine Islands. What significance this distinction in jur

isdiction was intended to possess, or whether it was merely desired to restrict the extent to which the administrative duties of the Commission should be exercised at the inception of the plan embodied in the creating act, will appear when its policy is developed in practice. As the limits of these statutes are the same, it may also have been intended to utilize the Commission to preclude the necessity for future litigations under the Sherman Law; certainly the issuance of restraining orders requiring the defendant to cease and desist from "unfair methods of competition in ** if it shall appear to the Commission that a proceeding in respect thereof would be to the interest of the public," appears to fit in well with this theory,-due regard being had to the well-defined policy of treating as state trials previous prosecutions under the Sherman Law.

commerce

Sections 1 and 2 of Sherman Law are Generally Construed together. In those prosecutions, Sections 1 and 2 are very generally regarded as dual only to the extent that Section I relates to individual attempts to restrain trade, etc., whereas combinations of two or more persons, firms or corporations are covered by the ensuing section. The distinction is obvious and is repeatedly noticed in the decisions, where these sections are usually construed together so as to include infractions of the statute by either method.

Construction and Application now Settled Law. The law in connection with the enforcement of Sections 1 and 2 of the Sherman Law has been so completely settled by the Northern Securities case, the Standard Oil and Tobacco prosecutions and by the success of the government in proceedings against the Union Pacific Railroad and International Harvester Company25 (the last-named decision, however, being subject to review by the Supreme Court in the pending appeal), that discussion of the rulings upon those provisions does not seem warranted. Suffice it to say that trusts, monopolies and combinations in restraint of trade or commerce have been adjudged unlawful, when the effect is to restrict the flow of traffic and trading which normal conditions of competition would otherwise create and maintain.

25 Standard Oil Co. v. U. S. 221 U. S. 1; U. S. v. American Tobacco Co., 221 U. S. 66 U. S. v. Union Pacific Rd., 226 U. S. 306; U. S. v. Int. Harvester Co., 214 Fed. 987.

15. CONGRESS SUPPLEMENTS ANTI-TRUST DECISIONS. Purpose in Strengthening Anti-trust Laws.-Attention is again directed to the controlling purpose in the strengthening of Anti-trust legislation through the enactment of the Federal Trade Commission Act and Clayton Law. That purpose can be none other than to prevent, rather than to combat, the evils growing out of monopolistic conditions. The long warfare waged by the government against the skillfully entrenched forces of trustsgrown strong and self-endowed with resources of wealth and talent-has been a feature in the history of our times. The remark by Mr. Culberson, a leading member of the House of Representatives, during the able debate that preceded the enactment of the Sherman Law: "I believe it will [afford adequate relief], if it is construed as we think it ought to be construed by the courts"-stands justified by the outcome thus far in the progress of Anti-trust affairs.

Legislation Supplements, Court Rulings.-The result has been, on the whole, favorable to the people; and Congress has seen fit to supplement this success by laws that by positive enactments extend Anti-trust influence and regulation into fields preventive as well as curative. These appear in the chapters already devoted to the Federal Trade Commission Act, and Clayton Law.

The debates that attended the passage of the Sherman Act are worthy of careful study in this connection.28 Many features are explained in the debates in the Sixty-second Congress in connection with the proposed Interstate Trade Commission Law of 1912. This is presented very fully in Appendix M, pages 304-334.

Sections 4 to 8 Considered.-Sections 4 and 5 of the Sherman Law confer jurisdiction in equity upon the several circuit courts (since succeeded by the district courts), in government suits brought to enforce the statutory provisions.

Section 6 provides for forfeiture of goods which are concerned in such infractions, when in transit from one State to another, or to a foreign country.

Section 7 affords threefold damages for any person injured in his business and property, and grants in addition the costs of court and a reasonable attorney's fee.

26 For account of this notable discussion, occurring at the inception of Anti-trust legislation, see pages 74-77, ante.

Section 8 provides that "the words 'person' or 'persons' whereever used in this act shall be deemed to include corporations and associations existing under or authorized by the laws of either the United States, the laws of any of the Territories, the laws of any State, or the laws of any foreign nation." This section is very comprehensive and the definition includes firms, individuals and associations, together with corporations of every description.

With the exception of Sections 1 and 2, these provisions are self-explanatory and will not receive attention which should be reserved for those topics which still require our careful consideration.

CHAPTER IX.

DEFINITIONS OF PERSON AND CORPORATION AND EXTENT OF (1) INDIVIDUAL, (2) CORPORATE LIABILITY, UNDER:

1. Federal Trade Commission Act.

2. Clayton Law.

3. Sherman Law.

General Comment.-In way of introduction to this department of our subject, it may be well to note that the Federal Trade Commission Act is not enumerated in the list of the Anti-trust acts. Section 4 enumerates the Sherman Anti-trust Law,' and sections 73 to 77, as amended, of the Wilson Tariff Law; while Section I of the Clayton Law adds that statute to the number. By reasonable deduction it seems to have been the legislative intent to create the Federal Trade Commission with its distinctive functions of enforcing the Anti-trust laws in their application to general business, and to some phases of the matters connected with common carriers and banks; and to accomplish this purpose, the Federal Trade Commission has been endowed with judicial powers and duties, suited to the task before it. This law, accordingly, is not an Anti-trust law; and the Commission is an instrument provided by law and superimposed upon that legislation, to render effective the preventive, administrative and curative features of the Anti-trust laws.

In exact accord with and in furtherance of this policy the definition of "corporation" in Section 4 of the Federal Trade Commission Act is given a very wide signification, which includes every form of combination except partnerships. The still broader definition of "corporation" contained in the Sherman Law, Section 8, reappears in the Clayton Law, Section 1,-doubtless because the Clayton Law is in effect and in legislative intent an amendment of the Sherman Law. At the very least it is as the title states a "supplement" thereof. This definition appears in both statutes, under the word "person," and is as follows:

"The word 'person' or 'persons' wherever used in this act shall be deemed to include corporations and associa

I For text, see Appendix C, pages 279-281.

2 See Appendix D, pages 282, 283.