Public Policy in Respect to Monopole I 1

13 220 Fed. 235.

failed in some way to do his part. When such an illegal con tract in restraint of trade was proved before a court by a defendant in a civil suit, the contract was declared unenforce able, and the only penalty in practice was that the plaintiff could not collect his debt or secure performance from the defendant." A very similar situation existed in the case of the individual's grievances against railroad charges and serv ices.

§ 9. Federal legislation against monopoly. The passage of the Interstate Commerce Act in prohibiting dis crimination and railway pooling, and that of the Act of 1890 "to protect trade and commerce against unlawful restraints and monopolies," popularly known as the "Sherman Anti trust Law," were part of one public movement to remedy monopoly. From one point of view it seems true, as has often been said, that in essence these statutes were simply enactments of long-established principles of the common law. Section 1 of the Sherman law declared illegal "every con tract, combination in the form of trust or otherwise, or con spiracy, in restraint of trade or commerce among the several states, or with foreign nations." Section 2 made it a mis demeanor "to monopolize, or attempt to monopolize." But, from another point of view, these new laws showed a marked change both in the conception of the interests in volved and in the means of preventing the evils. The evil was at last conceived of as a general public evil; the laws are not merely to protect individuals," but "to regulate com merce," "to protect trade and commerce." More important still, it was made the duty of public officers (district attorneys of the United States) to institute proceedings in equity "to prevent and restrain" violation of the Sherman Act, and a 14 Arnott v. Pittston and Elmira Coal Co., 68 N. Y. 558 (1877).

15 See ch. 29. is At the same time the rights of injured individuals are better safe guarded by section 7 of the Sherman law. pnrmitting the recovery of three-fold damages and attorney's fees.

special Commission was instituted to deal with railroad cases. It was this undertaking of the initiative by the government, the treatment of the problem as one of the general welfare, that marked a new epoch in this field. The methods and agencies provided might be at first inadequate and ineffec tive, but time and experience could remedy those defects.

In important ways opinion and policies were not yet clear and consistent. They wavered from one to another conception of the method for dealing with the problem. It was clear only that laissez-faire had been laid aside. There are three other possible policies, reflecting as many different conceptions of the problem of monopoly : (1) monopoly prosecuted, (2) mo nopoly accepted and regulated, (3) competition maintained and regulated.

§ 10.

Policy of the Sherman Anti-Trust Law. The policy of monopoly prosecuted embodied in the Sherman law is merely negative. It opposed no positive action to the mak ing of monopolistic contracts and to the formation of com binations, but declared them to be illegal and provided for their prosecution and punishment after the mischief had been done. The great epoch of the formation of combina tions 17 followed the enactment of this law. True, lack of experience by the department of justice, and lack of vigor ous effort to enforce the law, and the slow action of the courts were largely to blame for this result. The law has proved to be more effective to prevent new combinations, since it has been successfully enforced in a few notable cases. But once large combinations have beeii formed and complex individual financial interests have become involved, the courts have proved to be incapable of undoing the deeds. In practice the most sweeping remedy attempted under the law has been the dissolution of enormous combinations formed years after the law went into effect. This has been called the job of unscrambling the eggs. The most notable cases were those of the Standard Oil Company and of the See ch. 30. 8.