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or are

Of course Congress did not have in mind monopoly by legislative or executive grant. National Cotton Oil Co. v. Texas, 197 U. S. 129; Burrows v. Inter. Met. Co., 156 Fed. Rep. 389, opinion by Judge Holt. Such monopolies could not exist in this country except by grant of Congress or the States, and it has been held that exclusive grants to pursue an ordinary legitimate business are void. Butchers' Union Co. v. Crescent City Co., 111 U. S. 754. Neither did Congress have in mind an absolute monopoly. This can only be obtained by legislative grant. In a country like ours, where everyone is free to enter the field of industry, no absolute monopoly is probable. It is sufficient to bring it within the act if the combination or the aggregation of capital "tends to monopoly reasonably calculated to bring about the things forbidden." Waters-Pierce Co. v. Texas, 212 U. S. 86. Originally monopoly meant a grant by sovereign power of the exclusive right to carry on any employment. The only act of exclusion was the grant itself. If the grant was void, then there was no monopoly. These monopolies were common in all monarchial countries. Monopoly, however, came to have a broader meaning under the common law in the later days, and especially in the United States, and in order to arrive at what Congress intended by the act of 1890 it is important to understand the history of the times and the general understanding of monopoly as defined by the courts and the political economists, and the monopolies which were known to the people generally and against which Congress was legislating. Prior to the passage of this law, the various trust cases had been decided, in which trusts, like the Standard Oil of 1882, had been held illegal because they tended to create a monopoly. People v. North River Sugar Refining Co., 54 Hun, 354; State v. Nebraska Distilling Co., 29 Nebraska, 700; State v. Standard Oil Co., 49 Oh. St. 137. Various other decisions had defined monopoly as known

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in this country,-such cases as Alger v. Thacher, 19 Pick. 51; People v. Chicago Gas Trust, 130 Illinois, 268; Salt Co. v. Guthrie, 35 Oh. St. 666; Craft v. McConoughy, 79 Illinois, 346; Central R. R. Co. v. Collins, 40 Georgia, 582.

These cases were decided before the Sherman Act was passed, and defined monopoly at common law as it was understood and existed in this country. They embrace trusts like the Standard Oil trust; agreements fixing prices, dividing territory, or limiting production, thereby tending to enhance or control the price of products; general agreements restraining individuals from engaging in any employment except as incident to the sale of property; purchases by corporations of all or a large proportion of competing manufacturing or mechanical plants; combinations of separate businesses in the form of partnership but really for the purpose of controlling the trade; and various other forms of acquiring monopoly. There was no unlawful exclusion of anyone else from doing business in these cases. They show that the term "monopoly" as applied in American jurisprudence meant monopoly acquired by mere individual acts, as distinguished from grant of government, although the individual act in and of itself was not illegal; the concentration of business in the hands of one combination, corporation, or person, so as to give control of the product or prices; as said by Mr. Justice McKenna, in the Cotton Oil Case, "all suppression of competition, by unification of interest or management."

The case of Craft v. McConoughy, supra, well illustrates this argument. The pretended copartnership formed between the dealers of the town of Rochelle, while carrying on the business separately, enabled them to control the prices to the detriment of the surrounding country. It was therefore a monopolizing or an attempt to monopolize a part of the commerce of the State; and the monopolization would have been just as effective had these sepa

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rate business enterprises been stock corporations and the stock placed in the hands of a holding company. A similar illustration was the case of Smiley v. Kansas, 196 U. S. 447 (affirming 65 Kansas, 240), in which an attempt to control the grain trade of a particular station was held illegal under a state statute. The Standard combination is an attempt to control and monopolize a vast commerce of the entire country, as these people undertook to control and monopolize a local commerce.

1

The term "monopoly," therefore, as used in the Sherman Act was intended to cover such monopolies or attempts to monopolize as were known to exist in this country; those which were defined as illegal at common law by the States, when applied to intrastate commerce, and those which were known to Congress when the act was passed. The monopoly most commonly known in this country, and which the debates in Congress 1 show were intended to be prohibited by the act, were those acquired by combination (by purchase or otherwise) of competing concerns. The purchase of a competitor, as a separate transaction standing alone, was the exercise of a lawful privilege, not in and of itself unlawful at common law nor prohibited by statute, yet in the Northern Securities Case the purchase of stock in a railway was held to be illegal when done in pursuance of a scheme of monopoly.

It is not necessary in this case, and we doubt whether in any case it is possible, to make a comprehensive definition of monopoly which will cover every case that might arise. It is sufficient if the case at bar clearly comes within the provisions of the act. We believe that the defendants have acquired a monopoly by means of a combination of the principal manufacturing concerns through

1 Cong. Rec., Vol. 21, part 3, pp. 2456-2460, 2562, 2645, 2726, 2728, 2791, 2928; Cong. Rec., Vol. 21, part 5, pp. 4089, 4093, 4098, 4101; Vol. 21, part 6, p. 5954.

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a holding company; that they have, by reason of the very size of the combination, been able to maintain this monopoly through unfair methods of competition, discriminatory freight rates, and other means set forth in the proofs. If this act did not mean this kind of monopoly, we doubt if there is such a thing in this country. The men who framed the Constitution of this country were familiar with the history of monopolies growing out of acts of the Government. They guarded the people against these by constitutional provisions, but they left open the widest field for the exercise of individual enterprise, and it was the abuse of these personal privileges, made easy by state laws permitting unlimited incorporation, which gave rise to the evils that convinced the people of the necessity for the passage of the Sherman Anti-trust Act. It was not monopolies as known to the English common law, but monopolies such as were commonly understood to exist in this country which that act prohibited.

As a natural conclusion from the foregoing definition of monopoly by appellants' counsel they claim that the inhibitions of the second section are against the unlawful means used to acquire the monopoly, but that acquired monopoly is not illegal; therefore that the court can only restrain the means by which the monopoly was acquired, leaving the monopoly to exist. We believe this to be an altogether too refined construction of the act. If such be the true interpretation, the result would be that one could combine all the separate manufactures in a given branch of industry in this country by use of unlawful means such as discriminatory freight rates, but, if not attacked by the Government before it had obtained complete control of the business, its very size, with its ramifications through all the States, would make it impossible for anyone else to compete, and it could control the price of products in the entire country and would be beyond the reach of the law. It could, by selling at a low price where a competitor was

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engaged in business and by raising the price where there was no attempt at competition, absolutely control the business without itself suffering any loss; and yet the Government would be powerless to destroy the monopoly because the unlawful means had been abandoned.

If the court finds this combination to be in restraint of trade and a monopoly, it is authorized by § 3 to enjoin the same and has plenary power to make such decree as is necessary to enforce the terms and provisions of the act. Northern Securities Co. v. United States, 193 U. S. 336, 337, 344; Swift & Co. v. United States, 196 U. S. 375; United States v. Marigold, 9 How. 560, 566; Crutcher v. Kentucky, 141 U. S. 57; In re Rapier, 143 U. S. 110; The Lottery Case, 188 U. S. 321; United States v. General Paper Co., opinion of Judge Sanborn in settling the decree, not reported; United States v. American Tobacco Co., 164 Fed. Rep. 700; Chicago, Rock Island & Pacific R. R. Co. v. Union Pacific R. R. Co., 47 Fed. Rep. 15, 26.

Evidence that the defendant companies obtained rebates and discriminatory rates in the transportation of their product as against their competitors, and engaged in unfair and oppressive methods of competition thereby destroying the smaller manufacturers and dealers throughout the country, is material in this case. State of Missouri v. Standard Oil Co., 218 Missouri, 1; State of Minnesota v. Standard Oil Co., 126 N. W. Rep. 527; Standard Oil Co. v. State of Tennessee, 117 Tennessee, 618; S. C., 120 Tennessee, 86; S. C., 217 U. S. 413; State of South Dakota v. Central Lumber Co., 123 N. W. Rep. 504; Citizens' Light, Heat & Power Co. v. Montgomery, 171 Fed. Rep. 553; State of Nebraska v. Drayton, 82 Nebraska, 254; S. C., 117 N. W. Rep. 769; People v. American Ice Co., 120 N. Y. Supp. 443.

A person or corporation joining a conspiracy after it is formed, and thereafter aiding in its execution, becomes from that time as much a conspirator as if he originally designed and put it into operation. United States v.