or other person to appear before the commission, or to produce documentary evidence if so ordered, or to give evidence touching the matter in question; and any failure to obey such order of the court may be punished by such court as a contempt thereof.

Upon the application of the Attorney-General of the United States, at the request of the commission, the district courts of the United States shall have jurisdiction to issue writs of mandamus commanding any person or corporation to comply with the provisions of this Act or any order of the commission made in pursuance thereof.

The commission may order testimony to be taken by deposition in any proceeding or investigation pending under this Act at any stage of such proceeding or investigation. Such depositions may be taken before any person designated by the commission and having power to administer oaths. Such testimony shall be reduced to writing by the person taking the deposition, or under his direction, and shall then be subscribed by the deponent. Any person may be compelled to appear and depose and to produce documentary evidence in the same manner as witnesses may be compelled to appear and testify and produce documentary evidence before the commission as hereinbefore provided.

Witnesses summoned before the commission shall be paid the same fees and mileage that are paid witnesses in the courts of the United States, and witnesses whose depositions are taken and the persons taking the same shall severally be entitled to the same fees as are paid for like services in the courts of the United States.

No person shall be excused from attending and testifying or from producing documentary evidence before the commission or in obedience to the subpoena of the commission on the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him may tend to criminate him or subject him to a penalty or forfeiture. But no natural person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may testify, or produce evidence, documentary or otherwise,

before the commission in obedience to a subpoena issued by it: Provided, That no natural person so testifying shall be exempt from prosecution and punishment for perjury committed in so testifying.

SEC. 10. That any person who shall neglect or refuse to attend and testify, or to answer any lawful inquiry, or to produce documentary evidence, if in his power to do so, in obedience to the subpoena or lawful requirement of the commission, shall be guilty of an offense and upon conviction thereof by a court of competent jurisdiction shall be punished by a fine of not less than $1000, nor more than $5000, or by imprisonment for not more than one year, or by both such fine and imprisonment.

Any person who shall willfully make, or cause to be made, any false entry or statement of fact in any report required to be made under this Act, or who shall willfully make, or cause to be made, any false entry in any account, record, or memorandum kept by any corporation subject to this Act, or who shall willfully neglect or fail to make, or to cause to be made, full, true, and correct entries in such accounts, records, and memoranda of all facts and transactions appertaining to the business of such corporation, or who shall willfully remove out of the jurisdiction of the United States, or willfully mutilate, alter, or by any other means falsify any documentary evidence of such corporation, or who shall willfully refuse to submit to the commission or to any of its authorized agents, for the purpose of inspection and taking copies, any documentary evidence of such corporation in his possession or within his control, shall be deemed guilty of an offense against the United States, and shall be subject, upon conviction in any court of the United States of competent jurisdiction, to a fine of not less than $1000 nor more than $5000, or to imprisonment for a term of not more than three years, or to both such fine and imprisonment.

If any corporation required by this Act to file any annual or special report shall fail so to do within the time fixed by the commission for filing the same, and such failure shall continue for thirty days after notice of such default, the corporation shall forfeit to the United States the sum of $100 for each and every day of the continuance of such failure, which forfeiture shall be

payable into the Treasury of the United States, and shall be recoverable in a civil suit in the name of the United States brought in the district where the corporation has its principal office or in any district in which it shall do business. It shall be the duty of the various district attorneys, under the direction of the Attorney-General of the United States, to prosecute for the recovery of forfeitures. The costs and expenses of such prosecution shall be paid out of the appropriation for the expenses of the courts of the United States.

Any officer or employee of the commission who shall make public any information obtained by the commission without its authority, unless directed by a court, shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be punished by a fine not exceeding $5000 or by imprisonment not exceeding one year, or by fine and imprisonment, in the discretion of the court. SEC. 11. Nothing contained in this Act shall be construed to prevent or interfere with the enforcement of the provisions of the anti-trust Acts or the Acts to regulate commerce, nor shall anything contained in the Act be construed to alter, modify, or repeal the said anti-trust Acts or Acts to regulate commerce or any part or parts thereof.

Approved, September 26, 1914.

THE CLAYTON ACT

The Clayton Act "to supplement existing laws against unlawful restraints and monopolies," that is to say, the Sherman Anti-Trust Law, is a hodgepodge, compounded of various details, many unnecessary, some conflicting, others positively mischievous. It is the expression of an honest popular purpose to remedy existing economic evils and to fulfill Democratic campaign pledges. But it is a broth which clearly suffers from too many cooks; or, to change figures, a hammer which aims to hit too many nails on the head at one and the same time. Unfair trade practices, interlocking directorates, intercorporate stockholdings, dishonest railroad financing, the legal status of trade-unions and even the use of injunctions in labor disputes, are all comprehended within the statute. Our attention, naturally, must be focused upon those features of the act which deal specifically with the preservation of an open market and a fair field for all comers in business. Yet it is probable that many of these details of the law represent a compromise, that is to say, a give-and-take between opposing groups in Congress. Without the contempt

of court and injunction sections, approval of the restraint of trade clauses would probably have failed of support from the labor vote. One may hesitate perhaps to follow Professor Young to the extent of characterizing the Clayton Act as 66 bungling and generally futile." One may with greater confidence assent to Stevens' conclusion that, so far as amendment of the Sherman Act is concerned, "no harm has been done;" and in certain details, such as the prohibition of tying arrangements, the new legislation was rendered necessary by instant decisions of the Supreme Court of the United States. Turning to the text of the statute, section 2 specifically prohibits price discrimination between different purchasers of commodities. This was obviously aimed at such tactics as local price cutting, so successfully utilized by the Standard Oil Company to build up its monopoly. But it will be observed that this statute enables the suppression of such acts, not merely when incidental to the creation of monopoly but at all times and under all circumstances. If price cutting be not advantageous to the community in general, as the better economic opinion now holds, a real addition to the Sherman Act has been made hereby. But whether the same end had not already been achieved in the general prohibition of unfair business practices in the Trade Commission Law, is at least debatable. It is also open to question whether the permission to vary prices "in good faith to meet competition" may not open the door to nullification of the entire section and possibly to weaken the Sherman Act itself. Whether it will do so or not, depends upon how constructively the courts virtually legislate in interpretation of the statute. Section 3 of the law contains another specific prohibition, supplementary, or it may be, defining to that extent, both the Sherman Act and the Trade Commission Law. For it declares unlawful, all exclusive or tying clauses, such as have been employed by the United Shoe Machinery Company in its leases of machinery, by the Thread and Photographic combinations in their selling agreements with jobbers and retailers, or by the electric lamp pool in its purchasing contracts. In view of recent pronouncements of the United States Supreme Court in patent decisions, notably in the Dick case, a clear definition of the rights of traders would seem to have been needed. Section 5 is an important one, in that it relieves the plaintiff in a suit for damages under the Act, of proof of the offense, if that has already once been established in a Federal proceeding. The following sections 6, 7, 8, 9, and 10 have to do with matters only inci dentally related to the trust problem. The prohibition of intercorporate stockholdings reverts to the issue of the holding company already discussed in connection with the Northern Securities case; while the restrictions upon interlocking directorates touch the subtle details of credit and banking facilities. Section 9 dealing with common carriers resulted from the disclosures in the New Haven and Rock Island scandals of the time.1

1 Ripley, Railroads: Finance and Organization, pp. 471, 524, etc.

The remainder of the Act deals with procedure, enforcement and penalties. Much of it is highly technical. It appears to be bungling, where, for example, it provides for final decision upon the prohibitions of the Act by both the Supreme Court and the Circuit Court of Appeals. It provides for duplication and possible conflict of authority by vesting enforcement in the Department of Justice as well as in the Trade Commission. It will also be noted that the omission of all criminal penalties, as have been ineffectively imposed in a few instances in the past, rests everything upon the employment of contempt of court procedure in future. The provision in section 14, whereby the act of a corporation shall be deemed that of its directors, would seem to express a need of the time, a need, however, so apparent that the courts seem independently in a fair way to solve the difficulty without recourse to the new statute. Section II of the Clayton Act, as we have already noted, dovetails into section 5 of the Trade Commission Law, and needs to be considered in connection with it.

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Whatever the shortcomings of the measure, one cannot withhold admiration for the steadfastness of purpose, the worthiness of motive and the extraordinary political ability of President Wilson in achieving this fulfillment of the pledges of his party in the face of seemingly insuperable difficulties.— Ed.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That "antitrust laws," as used herein, includes the Act entitled "An Act to protect trade and commerce against unlawful restraints and monopolies," approved July second, eighteen hundred and ninety; sections seventy-three to seventy-seven, inclusive, of an Act entitled "An Act to reduce taxation, to provide revenue for the Government, and for other purposes," of August twentyseventh, eighteen hundred and ninety-four; an Act entitled "An Act to amend sections seventy-three and seventy-six of the Act of August twenty-seventh, eighteen hundred and ninetyfour, entitled 'An Act to reduce taxation, to provide revenue for the Government, and for other purposes,' approved February twelfth, nineteen hundred and thirteen; and also this Act.

"Commerce," as used herein, means trade or commerce among the several States and with foreign nations, or between the District of Columbia or any Territory of the United States and any State, Territory, or foreign nation, or between any insular possessions or other places under the jurisdiction of the United States, or between any such possession or place and any State