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punished by fine not exceeding five thousand dollars, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court.
Sec. 3. Every contract, combination in form of trust or otherwise, or conspiracy, in restraint of trade or commerce in any territory of the United States or the District of Columbia, or in restraint of trade or commerce between any such Territory and another, or between any such Territory or Territories and any State or States or the District of Columbia, or with foreign nations, or between the District of Columbia and any State or States or foreign nations, is hereby declared illegal. Every person who shall make any such contract or engage in any such combination or conspiracy shall be deemed guilty of a misdemeanor, and, on conviction thereof shall be punished by fine not exceeding five thousand dollars, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court.
Sec. 4. The several Circuit Courts of the United States are hereby invested with jurisdiction to prevent and restrain violations of this act.
Sec. 6. Any property owned under any contract or by any combination, or pursuant to any conspiracy (and being the subject thereof) mentioned in section one of this act, and being in the course of transportation from one State to another, or to a foreign country, shall be forfeited to the United States, and may be seized and condemned by like proceedings as those provided by law for the forfeiture, seizure and condemnation of property imported into the United States contrary to law.
Sec. 7. Any person who shall be injured in his business or property by any other person or corporation by reason of anything forbidden or declared to be unlawful by this act, may sue therefor in any Circuit Court of the United States, in the district in which the defendant resides or is found, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the costs of suit, including a reasonable attorney's fee.
Sec. 8. That the word "person, or "persons," whenever 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 country. Approved, July 2, 1890.
93. FEDERAL CONTROL OF TRUSTS.
How far shall the Federal Government go in regulating trusts by carrying out the principles of the Sherman Act? That it has already gone a great way and will in the future go further, is the view expressed in the following paper read by Mr. Tolcott Williams before the American Academy of Political and Social Science in 1908:
A railroad corporation is regulated by the Federal Government, primarily not because it is engaged in interstate commerce but because the regulation of interstate commerce is the national duty of Congress. It is not the relation of the railroad to this commerce which brings into action the Federal Government; but the relation of the Federal Government to interstate commerce which brings the railroad under federal regulation. Any other corporation which enters interstate commerce to an extent which renders its regulation necessary to the regulation of interstate commerce will for the same reason come under the scope and sweep of federal power.
This deep and assured conviction that Congress would finally legislate upon the great corporations and combinations, I found pervaded the conference on trusts called at Chicago in the last week of October by the National Civic Federation, to my connection with which I owe my presence on this platform, attending it as I did as a delegate from this state appointed by the governor. Possessing no substantive powers and in none of the customary or organic senses of the word representative, it included delegates appointed by the chief executive of most of the states in the Union
interested in the subject, state officers and the counsel of the federal government engaged in the regulation of railroads and the prosecution of trusts, the counsel of many of the larger railroads and corporations, and delegates from the trade combinations, like the National Druggists' Association and labor unions, including the American Federation of Labor and various farmers' organizations. Such a body represents without being representative. Such a body, having no legislative responsibility and no party responsibility met for opinion and not for action, is, as every journalist comes to know, a better gauge of public sentiment at any given moment than bodies of real power and actual importance. Having to act, these latter and their members must be careful of expression; but a conference like that which met in Chicago reflects and mirrors with great accuracy the average and widespread opinion of the day, before it crystallizes into law, when all can see the record and expression of authoritative public opinion finally expressed in statutory form.
No one could be a member of this body, meet its membership, share its deliberations and share in the work of securing an unanimous expression of opinion from its diverse membership, without securing an invaluable impression of floating opinion. Such a conference, if its members come to a common opinion, expresses exactly and accurately what people would like to have, before the bulky cumberous and official action of national parties and the national legislature has acted and enacted law.
The Chicago Conference on Combinations and Trusts of the National Civic Federation made perfectly clear what I believe is the settled purpose and resolution of the American people, that there shall be no combination without regulation. The decision of the Supreme Court on the Boycott in the Danbury hat case has put this popular resolution into judicial form, and the support and approval given this decision and the widespread opposition to any proposed legislation modifying or seeming to modify this decision shows how near it
is to public conviction. Whether in capital or labor, whether in railroads or industrial corporations, whether in distributing agencies, trade associations like the druggists' or farmers' 'association, combination without regulation will not be permitted by the American people. Combinations, to any size, any extent and any purpose not prohibited by law, the American will accept. The mere size of anything never daunts him. He is used to big things. But combination which is not regulated he will not permit. The real choice is not whether there shall be regulation or not; but whether this regulation shall be by and through a criminal statute, the Sherman Anti-Trust Act of 1890, or through administrative regulation and supervision. The whole body of combinations, railroad and industrial, of labor and of farmer, of wholesaler and retailer, have no choice between regulation or not; but between the drastic operation of the criminal courts through this federal law and similar state statutes or reports to and supervision by orderly civil machinery. One or the other there will be, because combination without regulation our people and public will not permit.
The act of 1890, the Sherman Anti-Trust Act, is but one of a network of legislation covering all our states. Of varying character these laws and the decisions and prosecutions over them have extended, as already shown, to every branch of trade. Little of what the common law permitted in combination in restraint of trade is left. How much even this was, the wise man will not too strictly define. What the cankerworm of federal law and its interpretation and administration has not destroyed, the caterpillar in the branching tree of state jurisdiction has eaten. If a combination in restraint of trade lives at peace in this country, it is not without apprehension, and those called to a close acquaintance with the managers and the counsel of our great combinations in industry and transportation, know best their manifold anxiety. I speak with knowledge when I record that in the past five years, the great and most conspicuous corporations in both fields, in and out of interstate commerce, have been
solemnly advised that past decisions, state and federal, have only to be pushed to their full legitimate logical conclusion to challenge the security of any corporate combination from the United States Steel Corporation and the Pennsylvania Railroad down. No such "badge of sufferance" has ever been imposed by law on capital in modern history since the Jew was baited from York to Venice, by Plantagenet and Doge alike. Not in our history has there been on any subject of mingled moral and economic, social and legal relations such general unanimous and universal exercise of the lawmaking, judicial and law-enforcing power since the legislation from 1820 to 1860 on chattel slavery, and this was divided into two opposing purposes-North and South. The national resolution that there shall be no combination without regulation enters every state, [and] controls federal laws, decisions and prosecutions.
It is a matter of common knowledge, that in the period of development in railroads, industries and distribution after the Civil War, from 1865 to 1881, when the first agitation began, railroads, without challenge, granted rebates, discriminated in rates, agreed on rate sheets and pooled their receipts, manufacturers combined on prices and divided territory, wholesalers and retailers united to preserve the margin between wholesale and retail prices and refused goods to those who broke scheduled prices. These were all openly and publicly done for a score of years. These acts and this policy were accepted by the public. The records of more than one of our great corporations will show that counsel advised that these practices were legal. At least one railroad, a party to the notorious contract on oil freights with the Southern Improvement Company, was advised by its solicitor on that contract that it had a right to sell its transportation at different rates to different customers as freely "as a grocer sells sugar at different prices." The whole range of methods now condemned and prosecuted was accepted without interference by courts or legislatures for years. One reason for the extreme bitterness among capitalists over sixty years of age is that