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If the Sherman Anti-trust Law has been properly described as a Magna Charta among the Anti-trust statutes of the United States, it appears equally proper to designate the Federal Trade Commission Act and the Clayton Law, taken together, as a Business Constitution, intended to afford fair and impartial protection to the commercial interests of the American people.
While the Sherman Law during its initial period was somewhat neglected as a weapon against the forces of trade restraint and monopoly, the sweeping nature of its constitution-like phrases gradually made it all-embracing in its prohibitions, and by its means a campaign, both offensive and defensive, was carried on in the people's behalf until at length even those giants, the Standard Oil and Tobacco trusts, were brought before the court and compelled to dismember their overgrown corporate organisms.
That there are tides in the affairs of nations as well as of men is apparent to all; and it is equally certain those tides at some seasons progress more rapidly than at others. Such a season in the Anti-trust movement was in evidence in 1889-90, when the framing of the Sherman Law occupied the most careful attention and scrutiny of such statesmen as Senators Sherman, Edmunds, Hoar, and others.
The conscience and will of the people as condensed into the space of the eight short sections comprised in the Sherman Law have been ably and impartially interpreted and made effective by the Supreme Court; and while that tribunal has sometimes disclosed a divergency in views of its individual members, the general result has justified the confidence reposed in that court, which alone exists by warrant of a constitutional grant. In some of the Circuit Courts of Appeal a halting attitude and desire to criticise the Sherman law and to minimize its restrictive influence has been noticeable; but in the clear atmosphere of the Supreme Court the subject has been seen in plain perspective and from every angle.
Even in the disposition of the Supreme Court, however, there remained one element of doubt and uncertainty. Whereas in the latest Anti-trust decisions the issues are treated as involving only the application of established principles for their solution, and
the rules ably and comprehensively set forth in the Standard Oil and Tobacco cases are recognized and enforced as part of the law of the nation,-still, the court reserves to itself the right and power to dispose in future of each individual case as it arises, in accordance with the measure of monopolistic tendencies therein disclosed.
The situation, therefore, was not in entire accord with a government existing under a written constitution. In conditions where Congress, the supreme legislative body, had deemed the safety and continuance of commercial freedom of the citizen at stake, it had prohibited certain acts and combinations; and the Supreme Court had decreed that in each instance it would judicially scan those single and combined acts to decide for itself whether they were such "undue restraints" as in "the light of reason" amounted to an infraction of the law. This course, it was argued in Congress, and believed by many, if continued and unrestrained, might in time grow into a system of court constructions akin to the English common law, and we should thus evolve in the United States an anomaly in the shape of an unwritten as well as a written constitution,-"a wheel within a wheel" in our governmental machine. Besides, the readjustment of certain culprit organizations had been turned over to the lower courts for their supervision of that task,-a duty which partook of ministerial rather than of judicial functions,
It was likewise brought home to the mind of the nation and in turn made known to its representatives in Congress assembled, how distracting to business was the eternal possibility and danger of a government prosecution under the Sherman Law, and that there existed a necessity for a permanent board or commission which, acting in accordance with appropriate legislation, would prevent monopolistic tendencies at their source and in cases of wilful neglect or disobedience would direct and enforce compliance with the curative decree. In brief, it was seen that the Sherman Law was inadequate to occupy the entire Antitrust field, and that something supplementary thereto was required for the adequate regulation of business.
At this juncture, and following closely upon the decisions in the Standard Oil and Tobacco cases, the Senate, July 26th, 1911, adopted a resolution authorizing and directing the Committee on Interstate Commerce to inquire into what changes were "necessary or desirable in the laws of the United States relating to
the creation and control of corporations engaged in interstate commerce," with directions to hold sessions and to report to the Senate at the earliest date practicable. The hearings extended from day to day over a period of three months and more than one hundred persons appeared and presented their views. The report and the extremely able debates are presented in substance in Appendix J. These debates disclose a deeper insight into Anti-trust principles and policies than can be discerned in the Sherman Law discussion in 1890,-which is to say that the experiences of more than twenty years had produced a riper knowledge of that department of national life. It remained, however, for the succeeding Congress to enact measures calculated to cause offending corporations and individuals to cease and desist from unfair methods of competition in commerce. This legislation is comprised in the Federal Trade Commission Act and the Clayton Law.
Already a use has been found for the supervising powers of the Federal Trade Commission. Under a Senate ResolutionSenator Gore, Oklahoma, September 28, 1914, two days after the creating act was approved-that Commission is now engaged in an enquiry as to the manner in which the Standard Oil subsidiaries are carrying out the terms of the final decree making effective the decision of the Supreme Court handed down May 15, 1911, requiring dissolution of that trust.
Under the power to investigate trade conditions in and our commercial relations with foreign countries, sessions of the Commission have been held at various commercial centers, and these enquiries and conferences promise benefits in the way of extending our export trade.
If we are right in our view of the situation, the state trials which have marked, like battlefields, the progress of the principles exemplified in the Sherman Law, will now grow few in number. The era of preventive regulation has succeeded to the period of repression and punishment. Let us look forward with confidence to the era of prevention becoming also the era of peace and good will in the American business world. If correct principles and well thought out rules, are sensibly, impartially and promptly enforced, the average business man should now find a place for his limited capital and his activities such as has not existed since the shadow of the gigantic trusts fell across the land.
The various Appendices are added with the purpose of bringing the Anti-trust laws within one cover, and joining thereto in convenient form access to the measures and discussions which contain the history of that system of jurisprudence down to the date of the enactment of the Federal Trade Commission Act and the Clayton Law. Whether the election of Senators by popular ballot will mark a change in the policy or the personnel of that body, remains to be seen; but every student of the Antitrust laws will be thankful for and appreciative of the great ability of the men who in the Upper Chamber took the leading part in these debates in the Fifty-first, Sixty-second and Sixtythird Congresses.
The effort to make the various Appendices disclose an epitome of the history and condition of Anti-trust legislation is due to recognition of the fact that in the absence of decisions or rulings the officer of a corporation and his legal adviser must look to the source of this system of laws for interpretation and guidance. It is the belief of the authors that the available material is fully set forth in those Appendices.
Wherever in the general text there has appeared occasion for their views, the authors have set their version forth, as in duty bound. Such views are an incident to authorship. No statutory or other obligation rests upon them to produce a book; but when written it should contain their views upon the principal points. The reader may not agree with those views, and the reader's view point may be correct; but that is another story.
The forms cover the practice as laid down in the rules and will be sufficient as a guide in ordinary cases.
It has not been found practicable to include such necessarily transient matter as the Terms of the Commission, but information of that description can be readily secured.
The effort of preparing this work has been reduced by the assistance afforded through prior labors of writers who are authorities on the Anti-trust laws. Among these we would specify: Thornton,-A Treatise on the Sherman Anti-Trust Act. Eddy,-On Combinations.
Williams,-Laws on Trusts and Monopolies, with Authorities, (official publication).
Walker,-History of the Sherman Law.