which latter event the court may impanel a jury from the jurors then in attendance, or the court or the judge thereof in chambers may cause a sufficient number of jurors to be selected and summoned, as provided by law, to attend at the time and place of trial, at which time a jury shall be selected and impaneled as upon a trial for misdemeanor; and such trial shall conform, as near as may be, to the practice in criminal cases prosecuted by indictment or upon information.

If the accused be found guilty, judgment shall be entered accordingly, prescribing the punishment, either by fine or imprisonment, or both, in the discretion of the court. Such fine shall be paid to the United States or to the complainant or other party injured by the act constituting the contempt, or may, where more than one is so damaged, be divided or apportioned among them as the court may direct, but in no case shall the fine to be paid to the United States exceed, in case the accused is a natural person, the sum of $1,000, nor shall such imprisonment exceed the term of six months: Provided, That in any case the court or a judge thereof may, for good cause shown, by affidavit or proof taken in open court or before such judge and filed with the papers in the case, dispense with the rule to show cause, and may issue an attachment for the arrest of the person charged with contempt; in which event such person, when arrested, shall be brought before such court or a judge thereof without unnecessary delay and shall be admitted to bail in a reasonable penalty for his appearance to answer to the charge or for trial for the contempt; and thereafter the proceedings shall be the same as provided herein in case the rule had issued in the first instance.

SEC. 23. That the evidence taken upon the trial of any persons so accused may be preserved by bill of exceptions, and any judgment of conviction may be reviewed upon writ of error in all respects as now provided by law in criminal cases, and may be affirmed, reversed, or modified as justice may require. Upon the granting of such writ of error, execution of judgment shall be stayed, and the accused, if thereby sentenced to imprisonment, shall be admitted to bail in such reasonable sum as may be required by the court, or by any justice, or any judge of any

district court of the United States or any court of the District of Columbia.

SEC. 24. That nothing herein contained shall be construed to relate to contempts committed in the presence of the court, or so near thereto as to obstruct the administration of justice, nor to contempts committed in disobedience of any lawful writ, process, order, rule, decree, or command entered in any suit or action brought or prosecuted in the name of, or on behalf of, the United States, but the same, and all other cases of contempt not specifically embraced within section twenty-one of this Act, may be punished in conformity to the usages at law and in equity now prevailing.

SEC. 25. That no proceeding for contempt shall be instituted against any person unless begun within one year from the date of the act complained of; nor shall any such proceeding be a bar to any criminal prosecution for the same act or acts; but nothing herein contained shall affect any proceedings in contempt pending at the time of the passage of this Act.

SEC. 26. If any clause, sentence, paragraph, or part of this Act shall, for any reason, be adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair, or invalidate the remainder thereof, but shall be confined in its operation to the clause, sentence, paragraph, or part thereof directly involved in the controversy in which such judgment shall have been rendered.

Approved, October 15, 1914.

XX

THE LAW CONCERNING MONOPOLISTIC COMBINATIONS IN CONTINENTAL EUROPE1

THE

HE problem of monopolistic combinations in industry is of world-wide character, but the law respecting them differs greatly in the most important states. These differences arise partly from various historical circumstances of social and legal development, but they are also due to different views as to the significance of such combinations and the attitude that the state should assume towards them with respect to both public and private interests.

Industrial combinations are by no means purely modern phenomena, and the jurisprudence of Europe in ancient as well as in modern times has addressed itself to the question of their propriety and legality. In the early empire, for example, the law made the cornering and engrossing of grain a criminal offense, and threatened the same with penalties varying from a denial of trading privileges to banishment and public labor. A law of Zeno, under the later empire, forbade under penalty of a heavy fine all combinations whereby it was agreed that a commodity should not be sold below a certain price. A similar policy was followed in the middle ages by the emperors of the Holy Roman Empire, and by the kings of France, and to their influence can be traced some of the provisions of modern European codes.

The course of development in modern states has not only differed widely, but in the same state, at different periods, the changing views of political and social philosophy have been reflected in the law. A remarkable illustration of the effect of new ideas is seen in the legislation of the French Revolution, and notably in the law which forbade all associations in the form known to the French law as "corporations" (i.e. guilds or as

1 Political Science Quarterly, Vol. XX, 1905, pp. 13-41. Elaborate footnotes and references to cases are omitted for lack of space.

sociations of persons in the same trade) on account of the odious monopolies which they had established under the ancien régime. Another illustration of more historical importance, and resting on deeper rooted ideas of social policy, is found in the nineteenth century movement towards industrial freedom which has brought about the abolition of laws prohibiting employers and wageearners from combining with respect to labor contracts. In this matter, indeed, the policies of modern states, following a strong democratic tendency, have shown more consistency than with respect to combinations to control production and prices. It is with this last question that we are here concerned.

The evolution and present condition of combinations in Europe is quite beyond the scope of this discussion; it is sufficient to say that, taking the continent as a whole, industrial combinations seem quite as numerous as in America and in some countries they are highly developed. They are usually called cartells. The European cartell corresponds to an American pool, but it is generally more highly organized. Consolidated organizations of business-trusts, fusions, mergers, etc.—are rarely found.

The conditions of space and material make it necessary to confine the discussion of the law to the chief industrial countries of continental Europe, viz., Germany, Austria, and France, although brief references will be made to certain others. For these three states it is possible to make a fairly complete statement of the law, although no attempt will be made to enter into the minute distinctions of legal interpretation nor to give an exhaustive digest of the cases. One phase of the subject, the regulation of competition in bidding on public contracts, will be omitted entirely.

The law can be most conveniently examined and clearly understood by taking each country separately, considering, first, the criminal law, and, second, the civil law, and examining under each (a) legislation, (b) judicial decisions and (c) comment of jurists.

I. THE GERMAN EMPIRE

The law of the German Empire is of special interest for two reasons: first, because the new code represents the latest effort of scientific jurisprudence and, second, because it was established

at a time when industrial combinations had reached a high stage of development in that country and had attracted the attention of statesmen and jurists.

The German criminal code contains no prohibition against cartells nor any law specially concerning them. A good many offenses under the criminal law might, of course, be committed by cartells. A case of some interest occurred recently under the article of the criminal code which prohibits extortion. A powder manufacturing combination refused to supply dealers who did not buy exclusively of them. One of their customers purchased supplies from an outsider and was threatened in consequence with a discontinuance of supply. The imperial court condemned this as contrary to the law.

The provisions of the civil law in Germany are much more important with respect to cartells than those of the criminal law, but here also nothing is to be found preventing their establishment. The civil law implicitly recognizes the validity of cartell contracts, because it establishes the general principle of freedom of contract, without making any exception of cartell contracts. Cartells have been attacked, nevertheless, in the courts, both under the industrial code and under the civil code.

The industrial code (Gewerbeordnung) establishes the general principle of free industry in its first section, which reads: "The pursuit of an industry is permitted to everyone, in so far as exceptions or limitations are not imposed or permitted in the present law." The interpretation of this section goes back to the beginning of the activity of the German imperial court. The earlier cases were regarding such restraints on the freedom of industry as are contained in contracts to abstain from engaging in a certain business under certain conditions of time and space. In a case decided in 1880 the court said: "The industrial code does not aim to limit the freedom of contract to any greater extent than is required in the interest of the public." In 1890 a case came before the imperial court concerning the relations of a publishers' and booksellers' cartell with an outsider, against whom certain discriminations had been made on account of rate-cutting. The cartell was attacked as an infringement of the principle of free industry. The court, however, denied this and said in part: