Sec. 9. #Federal legislation against monopoly.# The passage of the Interstate Commerce Act in 1887[13] prohibiting discrimination and railway pooling, and that of the Act of 1890 “to protect trade and commerce against unlawful restraints and monopolies,” popularly known as the “Sherman Anti-trust Law,” were part of one public movement to remedy monopoly.  From one point of view it seems true, as has often been said, that in essence these statutes were simply enactments of long established principles of the common law.  Section 1 of the Sherman law declared illegal “every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several states, or with foreign nations.”  Section 2 made it a misdemeanor “to monopolize, or attempt to monopolize.”

But from another point of view, these new laws showed a marked change both in the conception of the interests involved and in the means of preventing the evils.  The evil was at last conceived of as a general public evil; the laws are not merely to protect individuals,[14] but “to regulate commerce,” “to protect trade and commerce.”  More important still, it was made the duty of public officers (district-attorneys of the United States) to institute proceedings in equity “to prevent and restrain” violation of the Sherman Act, and a special Commission was instituted to deal with railroad cases.  It was this undertaking of the initiative by the government, the treatment of the problem as one of the general welfare, that marked a new epoch in this field.  The methods and agencies provided might be at first inadequate and ineffective, but time and experience could remedy those defects.

Sec. 10. #Policy of the Sherman anti-trust law.# But in important respects opinion and policies were not yet clear and consistent.  They wavered from one to another conception of the method for dealing with the problem.  It was clear only that laissez-faire had been laid aside.  There are three other possible policies reflecting as many different conceptions of the problem of monopoly:  (1) monopoly-prosecuted, (2) monopoly-accepted-and-regulated, (3) competition-maintained-and-regulated.  The policy of monopoly-prosecuted is merely negative.  This is the policy of the Sherman law.  It opposed no positive action to the making of monopolistic contracts and to the formation of combinations, but declared them to be illegal and provided for their prosecution and punishment after the mischief had been done.  The great epoch of the formation of combinations[15] followed the enactment of this law.  True, lack of experience by the department of justice, and lack of vigorous effort to enforce the law, and the slow action of the courts were largely to blame for this result.  The law has proved to be more effective to prevent new combinations since it has been successfully enforced in a few notable cases.  But once large combinations have been formed and complex individual