there was substantial evidence to support the Commission's finding.135

(4) What is "testimony"? The obligation which the Trade Law and the Clayton Law manifestly impose upon the courts to determine whether or not the findings of the Commission are "supported by testimony", necessarily imposes upon the courts the duty to decide as to what constitutes "testimony" in the sense in which that word is used in those statutes. Conceivably, it may be held that nothing is "testimony" in that sense, except what would be admissible in evidence under the strict rules of the common law. But that seems unlikely.136 The Commission must, however, it would seem, observe in its proceedings the essential rules of evidence, which are of such character that their non-observance might prejudice the accused in making his defense or asserting his rights.137 In so far as a court may be authorized to inquire and decide whether or not in any given case the Trade Commission has given due regard to the essential rules of evidence, to that extent the power of the court to go behind the findings of the Commission and to determine for itself the probative force of the testimony adduced before the Commission, will of course be increased.

(5) Jurisdictional facts. As to jurisdictional facts, upon the existence of which the power of the Commission

135 Int. Com. Com. v. Union Pacific R. R. (1912) 222 U. S. 541, 547-548.

136 Int. Com. Com. บ. Baird (1904) 194 U. S. 25, 44; Tang Tun v. Edsell (1912) 223 U. S. 673, 677; Low Wah Suey V. Backus (1912) 225 U. S. 460, 471; United States v. Uhl (1914) 215 Fed. 573, 574, 576, reversed but

upon another point, (1915) 239 U. S. 3; Choy Gum v. Backus (1915) 223 Fed. 487, 492-493; Ex parte Chin Loy You (1915) 223 Fed. 833, 835.

137 Int. Com. Com. v. Louis. & Nash. R. R. (1913) 227 U. S. 88, 93; Ex parte Chin Loy You (1915) 223 Fed. 833, 839; Cf., Sec. 46, infra.

to enter any order at all in any given case may depend, the provisions of the Trade Law and the Clayton Law making the findings of the Commission conclusive, are likely to be held to be altogether without application. The question of the power of the Commission to exercise a regulative authority at all in any given case, is essentially a judicial question which the Constitution forbids should be withdrawn from the courts.138 If the testimony bearing upon a jurisdictional fact shall be nicely balanced in any given case, a court will doubtless attach great weight to the Commission's finding as to that fact.189 But it would seem that, whenever a finding of a jurisdictional fact is involved, a court may, if it shall see fit, consider not merely whether the Commission had substantial evidence to support such finding, but also the weight of the whole evidence, and may disregard the Commission's finding if regarded as against the weight of the evidence.

Thus, if the construction which hereinabove140 has been placed upon the words "unfair methods of competition in commerce" as used in the Trade Law be correct, a finding by the Trade Commission that the effect of a given competitive practice is to suppress competition, unduly restrain trade, or create monopoly, will be a finding as to a jurisdictional fact, which will not be conclusive upon the courts. On the other hand, a finding by the Commission that the competitive practice in question is "unfair", if supported by testimony and made after a fair hearing, will probably be accepted by the court as binding upon it.141 Likewise, if called upon to enforce an order of the Trade Commission requiring an accused

138Int. Com. Com. v. I. C. R. R. (1910) 215 U. S. 452, 470.

139 Int. Com. Com. v. Nor. Pac. Ry. Co. (1910) 216 U. S. 538, 544.

140 Secs. 14 to 27, supra.

141Cf., United States v. Louis. & Nash. R. R. (1914) 235 U. S. 314, 320-321.

person to cease and desist from a violation of section two, three, seven or eight of the Clayton Law,142 a court will probably regard the finding of the Commission that the effect of the particular act in question may be to eliminate or substantially to lessen competition, to restrain trade, or to create monopoly, as a finding of a jurisdictional fact, in respect of which the court will consider itself at liberty to examine, and to reach its own conclusions upon, the testimony adduced before the Commission. As to any other facts, the courts will probably take the Commission's findings, if supported by testimony, as conclusive.

142Secs. 4, 9, 10, 11, 12, supra.

CHAPTER III.

ADVISORY POWER.

§ 34. Scope of power: In the exercise of its advisory power113 the Trade Commission may make reports (1) to the President, to either House of Congress, or to the Attorney General, as to alleged violations of the antitrust laws; (2) to the Attorney General as to the manner in which decrees, entered at the suit of the United States to restrain violations of the antitrust laws, are being carried out; (3) to the courts as to appropriate decrees for complainant in suits by the United States under the antitrust laws; (4) to Congress as to trade conditions in and with foreign countries where associations, combinations, or practices of manufacturers, merchants, or traders, or other conditions may affect the foreign trade of the United States; and (5) to Congress as to additional legislation. The Commission may also (6) report to the public at any time any information it may obtain, and may deem it expedient in the public interest to publish, except information as to trade secrets and the names of customers of persons or corporatons acquired by it in the discharge of its duties.

§ 35. Violations of antitrust laws: The Commission, upon the direction of the President or either House of Congress, is to report the facts relating to any alleged violation of the antitrust laws by any corporation.144 Upon the application of the Attorney General, the Commission is to make recommendations for the readjust

143 Trade Law, Sec. 6, (c), (d), pra. (e), (f), (h), Sec. 7; Sec. 5, su

144Trade Law, Sec. 6, (d).

ment of the business of any corporation alleged to be violating the antitrust laws in order that the corporation may thereafter conduct its affairs in accordance with law.145

While the Trade Law does not so declare explicitly, it is probably to be understood that the reports and recommendations thus provided for are to be made to the respective officers or bodies requesting them, that is to the President or either House of Congress in the one case, and to the Attorney General in the other. There is nothing in the Trade Law which suggests that Congress intended that, upon the application of the Attorney General, the Commission should make recommendations directly to the corporations involved as to how they might readjust the conduct of their business so as to make it conform with the antitrust laws. The reasonable supposition is that Congress intended that the Attorney General, and not the Commission, should be spokesman for the government in recommending readjustments to corporations accused of violating the antitrust laws. Considering the relative powers of the Attorney General and the Commission respectively, in respect of securing enforcement of the law, it is probable that recommendations voiced by the former will receive considerably more attention than those coming from the Commission. Moreover, an Attorney General can assure a corporation adopting recommendations offered, a degree of immunity from subsequent prosecution at least during that Attorney General's term of office. The Commission cannot furnish such assurance in any degree. It cannot declare authoritatively in advance whether any given line of conduct, if pursued by a corporation or anybody else, will be prosecuted or not.

The advisory power of the Commission in respect of 145 Trade Law, Sec. 6, (e).