148
THE GREEN BAG
-coming before the courts was held to be unlawful, in the great Case of Monopolies, decided about the close of her reign. It was there said: "Monopoly tends to the impoverishment of diverse artificers and others who before, by the labor of their hands in their art or trade, had maintained themselves and their families, who now will, of necessity, be con strained to live in idleness and beggary. Every man's trade maintains his life, and therefore he ought not to be deprived or dispossessed of it, no more than of his life." This decision of the court proved the death-knell of monopolies, and shortly after, Parliament, by act, abolished them. But the evils of monopoly, and the principles invoked by the courts of England in declar ing them void, and the grounds on which Parliament prohibited them, apply with equal force in modern times, and to the enactments of Congress prohibiting them within the United States. When the Con gress, by the constitution, was given the power to regulate commerce with foreign nations, among the several states and with the Indian tribes, it was given plenary power to deal with this question. It is not simply confined to the power to regulate, but it extends to all the incidents of regula tion, and it necessarily includes the power to enact such legislation, and enforce such laws, for the protection of citizens, as will make this regulation effective. No state action, or corporate action under state authority, can be invoked to stay the hand of the Federal government in the enforce ment of its enactments. And the same is true, so far as the powers of»the states are concerned, within the province of its intra state matters. This was well settled by the great opinion of Chief Justice Marshall in Gibbons v. Ogden, 9 Wheaton, 1, in which he placed an enlarged construction upon this provision. We care not whether the monopoly is attempted by individuals, corporations, or combinations, — the instru mentality is immaterial. When Congress declared that no person should monopolize
or attempt to monopolize commerce, and included corporations within the definition of "persons," it was a broad and sweeping provision, which applied to individuals, corporations, and to all manner of monopolies. I say, therefore, that com binations between separate and distinct individuals or corporations, to suppress competition in commerce and trade and to monopolize trade, is not the only thing prohibited or the only form of restraint and monopoly against which the law may be invoked. It cannot be material whether the means by which commerce is attempted to be monopolized is by purchase of all the available supply; by the control or acquisi tion of competing industries; by unfair methods of competition; by vast aggrega tions of capital sufficient to crush feebler efforts, or by what means. The suppres sion of competition through these means is as unlawful as the suppression of com petition by agreement between independent persons or corporations engaged in the same business. If at common law a grant of monopoly to a single person or corporation was void because it destroyed freedom of trade, discouraged labor and industry which should be free to all the subjects of the realm, why is it not void for the same reasons when accomplished by a single individual or corporation by other methods? If it is against the policy of the law to grant perpetual monopoly in any commerce, which would deprive the people of the right to engage in that industry, how is it less against the policy of the law for a single corporation or individual to gain control of all the commerce in a particular article, through purchase or acquisition of com peting properties, or through any other means or device? We are not invoking a new principle against an old device, but an old principle against a new device. Prin ciples are everlasting. Devices change. In our opinion, it is against the terms and the spirit of the Sherman Act for any man or set of men, through the form of corporate
