account. The Federal judges throughout the country assume the power, whether they have it or not, to suspend sentences in criminal cases. There is no statute authorizing any Federal judge to suspend any sentence, but some Federal judges have done it; and District Attorney Wise tells me that he feels that if Congress would repeal those provisions which inflict fines for violation of the Sherman law and would confine the punishment to imprisonment the Federal judges would sometimes arbitrarily suspend sentence altogether and let the accused go free rather than send him to prison. That was an official utterance, and I, being an unofficial person and having a proper sense of the respect due to the courts, would not venture to indorse it, but it is worthy of consideration.

I have seen in print many times and heard it stated at other times that one great difficulty about the Sherman law is that the juries will not find verdicts even in clear cases. That is a mistake. I believe there has never been but one instance in 21 years where a jury failed to convict an accused party in a Sherman law case. That was a long trial in California many years ago wherein certain railroad workmen who sympathized with Mr. Debs were said to have joined in the celebrated Debs strike of 1894. They were prosecuted in the United States Circuit Court for the Northern District of California for violating the Sherman law. Their trial lasted four months, I think, but the jury disagreed and the accused workingmen were never tried again. I think I am right in saying that there has not been an instance in 21 years in which anybody engaged in interstate commerce was tried before a jury for violation of the Sherman law where there was a failure to convict.

So that the comparative practical nonoperativeness of the Sherman law for many years is not chargeable at all to juries. The great difficulty that the public labored under during the first half of the last 21 years was a lack of interest in the Executive Department of the Government. The Sherman law was enacted about the middle. of President Harrison's administration, and the first case that was brought under it was brought by Mr. Taft, who was at that time Solicitor General and Acting Attorney General. About as large a beginning as might be expected was made during the administration of President Harrison. Mr. Olney was the first Attorney General in Cleveland's second a ministration, and he was a bitter opponent of the Sherman law. He had defended the Whisky Trust in a suit brought against it in Harrison's administration, and it is generally understood that he advised President Cleveland to do and say as little about the Sherman law as possible. Mr. Olney never did do anything important about it until the Debs strike, when he invoked the Sherman law against the Debs strikers, although one year before that, in his report, he had claimed that it did not apply to labor organizations at all.

The Knight case was a very unfortunate litigation. I am acquainted with the record in the Knight case. I have read it in order to be sure to speak with accuracy. There is much reason to suppose that the Knight case was a collusive case between the district attorney for the eastern district of Pennsylvania and the attorneys for the Sugar Trust; but whether it was collusive or not, it is absolute y certain that the district attorney carefully omitted to prove that the defendants in that case were engaged in interstate commerce or inter

national commerce at all. He had Mr. Searles on the stand, who was secretary of the Sugar Trust, and knew all about it; and the skill and alertness with which he steered Searles away from any possible statement that the trust was engaged in interstate or international commerce, was quite remarkable. Therefore, the Knight case necessarily failed in the circuit court, and failed in the circuit court of appeals on account of the total lack of evidence of any interstate or international transaction. When it came to the Supreme Court it necessarily failed there for the same reason. But Justice Harlan was so scandalized by that failure of justice that he dissented from the decision of the Supreme Court, on the ground that the Sherman law authorized, and rightly authorized, citizens of the United States to go from the States of their domicile to another State and buy merchandise under competitive conditions, even though the seller was not engaged in interstate commerce.

The Knight case was decided entirely upon the absence of evidence that the defendants were engaged in interstate or international commerce at all. So far as the record was concerned, it might have been true that the defendants bought all their raw sugar at the back door of their refineries and sold all their refined sugar at the front door and did no business whatever outside of Philadelphia. That was the state of the record, and the Supreme Court was confined to that state of the record. After the Sugar Trust had won their case on that theory, they traveled for 15 years on a wholly different allegation, namely, that interstate and international commerce was proved in the record, and that the Supreme Court decided in the Knight case that the Sherman law did not apply to manufacturing commodities in one State, even though the defendants were engaged in selling those commodities in other States. And Mr. Johnson, of Philadelphia, had the remarkable courage to tell the Supreme Court in the Standard Oil case last winter, that that was what the Knight case decided; and that it was conclusive in the Standard Oil case, in favor of the defendants.

During the twentieth century the executive department has been far more vigorous and energetic in the way of enforcing the Sherman law that it was in the nineteenth century. I did suggest to the Attorney General some time ago that he needed more help in the Department of Justice in order to conduct the numerous cases that he ought to conduct, and that he deserved larger appropriations from Congress. Appropriations by Congress have never been large for the enforcement of the Sherman law. They have always been small; I think only about $200,000, something like that; and Senator Kenyon, when he was assistant to the Attorney General, called on me in my office and explained to me that that was a great practical difficulty in the path of the enforcement of the Sherman law by the Department of Justice.

Now, Mr. Chairman, these observations cover all that occur to me at this moment, and I prefer, if further discussion is to take place, that the members of the committee shall select the particular topics and broach whatever subjects they think I may be able to illuminate. The CHAIRMAN. Senator Cummins, do you desire to ask Mr. Walker any questions?

Senator CUMMINS. The authorship of the antitrust law, as it now is, may not be very material; but it is true, is it not, that there is some controversy about the authorship of the law?

Mr. WALKER. There is no existing controversy. The facts are now well known historically, although there have been curious errors about it, and I know the origin of those errors and have traced them all out.

Senator CUMMINS. It is believed by some people that Senator Hoar wrote the first two sections of the law as they now are?

Mr. WALKER. That is certainly an error, as I have ascertained by examining the minutes of the Judiciary Committee.

Senator CUMMINS. I think in your book upon the history of the Sherman law there is such a suggestion?

Mr. WALKER. The second section of my book ascribes the credit of writing the whole law to Senator Hoar; but that ascription was based entirely on his statement in his autobiography, which was published in 1903. I knew Senator Hoar for years, and the idea that he could be mistaken about it did not occur to my mind. When I was writing my book, I wrote to Mr. Foster, a Member of Congress from Vermont, and inquired of him where I might find Senator Edmunds at that time; but he was not able to give me the address, and therefore I was not able to get into communication with Senator Edmunds until after my book was published. Shortly after the publication of the book Senator Edmunds read it, and he wrote me immediately, saying that Senator Hoar was mistaken in claiming the authorship of that statute, and that he never knew that Senator Hoar ever made that claim until the next year after Senator Hoar died. When Senator Edmunds did discover that Senator Hoar had made that claim in his autobiography, Senator Edmunds magnanimously refrained from publicly correcting it. The information thus coming to me from Senator Edmunds was somewhat of a shock to me until I read the introduction to Senator Hoar's autobiography, where he said that he feared that in the course of the autobiography he might inadvertently claim the entire credit of transactions in which he took only a part with other men. I think that that sweet confession should disarm all criticism of Senator Hoar; but it is a matter of record in the Judiciary Committee and in the office of the Secretary of the Senate that Senator Hoar contributed nothing whatever to that statute except to rewrite section 7 into its present form, and from one of the sections of Senator Sherman.

Senator CUMMINS. I was only prompted to call out what you have just said on account of an opinion which Senator Hoar gave with respect to the interpretation of the first section of the law shortly after it was passed.

Mr. WALKER. I have read that opinion.

Senator CUMMINS. Do you concur in the conclusions which Senator Hoar reached in that opinion?

Mr. WALKER. I do not.

Senator POMERENE. Pardon me. Right in that connection, is that opinion in the record here? There was some talk about placing it in the record.

Senator CUMMINS. I think it is not.

Senator POMERENE. I would like to have that in the record.

Senator CUMMINS. I have asked one of the lawyers who appeared before us and brought it to our attention to furnish a copy of it. I have not seen it, and as I understand it, the committee has not been furnished with a copy.

The opinion was given to the Washburn & Moen Manufacturing Co., of Worcester, Mass.?

Mr. WALKER. Yes, sir.

Senator CUMMINS. And it sustained the validity of an agreement to fix prices among the manufacturers of wire, did it not?

Mr. WALKER. Perhaps that statement is slightly too precise, but that was about its purport.

Senator CUMMINS. Because if the authorship of the law has any influence upon our considerations, it would be only on account of the construction given to it by Senator Hoar shortly after it was passed— a construction which, I take it, you believe has since been completely overturned by the Supreme Court of the United States?

Mr. WALKER. That is quite right.

Senator CUMMINS. Notably in the Addyston Pipe Co. case?

Mr. WALKER. I may mention also that two months ago, I sent a copy of that opinion to Senator Edmunds, and he read it and returned. it to me with his comments upon it. His letter was courteously phrased, but constituted a dissent from those views.

Senator CUMMINS. So that from the best information we have now, it can safely be assumed that Mr. Edmunds wrote these two sections at least?

Mr. WALKER. There is no doubt of that.

Senator CUMMINS. You are familiar with the bill which Senator Sherman originally introduced, I am sure?

Mr. WALKER. Yes, sir.

Senator CUMMINS. In order to form the basis of some questions that I want to ask you I intend to read that section as it was originally prepared, and I read it from your book, and I know it to be entirely accurate. It is found on page 3 of "The History of the Sherman Law,", by Mr. Walker:

SEC. 1. That all arrangements, contracts, agreements, trusts, or combinations between persons or corporations made with a view, or which tend, to prevent full and free competition in the importation, transportation, or sale of articles imported into the United States, or in the production, manufacture, or sale of articles of domestic growth or production, or domestic raw material that competes with any similar article upon which a duty is levied by the United States, or which shall be transported from one State or Territory to another, and all arrangements, contracts, agreements, trusts, or combinations between persons or corporations designed or which tend to advance the cost to the consumer of any such articles, are hereby declared to be against public policy, unlawful, and void.

You remember that the remaining two sections of the original Sherman bill relate only to remedies, and that the first section is the declaration with regard to the lawfulness or unlawfulness of these arrangements or contracts? That is true, is it not?

Mr. WALKER. That is true.

Senator CUMMINS. Now, what Mr. Edmunds did, in substituting his draft for that of Mr. Sherman, was to borrow certain phrases or terms of the common law upon this subject, I think. That is, instead of the prohibition against interference with competition he substituted a prohibition against restraint of trade or commerce, and the creation of a monopoly or attempt to establish a monopoly. Those terms were the terms that had been used in the common law in dealing with this subject, were they not?

Mr. WALKER. Both those words were used in the statute of James, which was enacted in 1624, and which is a statute against monopolies.

That statute purports to be declaratory of the common law, and that statute uses the word, "monopolize," and used the word "restraint,' in those connections.

Senator CUMMINS. Was that statute in effect when the antitrust law was passed, or had it been repealed?

Mr. WALKER. It has never been repealed even yet.

Senator CUMMINS. Therefore, what Mr. Edmunds did was to make unlawful the things which the common law of England had made unlawful or against public policy?

Mr. WALKER. That is not quite an, because the common law of England, while it denounced restraint of trade and monopoly as being unlawful, did not prescribe criminal penalties for violations, whereas the Sherman law does.

Senator CUMMINS. I was about to come to that. Our law, so far as the prohibitions are concerned, was simply declaratory of the common law, and it also attached penalties to disobedience of the law, and prescribed remedies for the better enforcement of the law. That is to say, the common law did not give, as I understand it, the sovereignty any power to constitute civil suits to enforce it; I mean civil suits brought by the sovereignty itself. And did not prescribe any punishment by way of fine or imprisonment that would follow or should follow the violation of a law, but left it largely, if not entirely, to the administration between private individuals.

Mr. WALKER. I think it was still more limited than that, Senator. The common law did not give to an individual a right to recover private damages for injuries inflicted upon him by combinations in restraint of trade. The common law confined itself to refusing to enforce restraining contracts between the parties to the contracts.

Senator CUMMINS. Precisely. Do you not understand that Mr. Sherman in his original draft undertook to prohibit the thing or things which the common law had declared to be unlawful, had declared to be against public policy, namely, the interference with free and fair competition?

Mr. WALKER. I think Senator Sherman intended to go much further - than the common law; and I do not think that the common law prohibited restraints of competition broadly.

Senator CUMMINS. Do you know of any case in the decisions of the courts of England, in which it was held that any contract or arrangement was in restraint of trade, that was not held to be in restraint of trade because it was in restraint of competition?

Mr. WALKER. I do not know that that distinction was ever attended to in any English decision.

Senator CUMMINS. Is it not true in every case that ever has been decided in England, that the reason that was given for its impolicy or its being in restraint of trade, was because it interfered with competition, or the opportunity for competition?

Mr. WALKER. I can not answer that question categorically, because I am not sure that I have in mind all that I have read that bears directly upon the inquiry, but my own impression is that it is very likely true that in every one of the English cases where restraint of trade was found to exist restraint of competition was the foundation of it.

On that point I wish to say, lest I be misunderstood, that nearly all cases of restraint of competition do result in restraint of trade, and