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SCIENCE 



[N. S. Vol. XLI. No. 1045 



these practises are to be deemed price dis- 

 criminations within the Clayton bill (sec. 

 2), which seems impossible, then the only- 

 remedy besides an order to desist is a right 

 to sue for triple damages. The difficulty 

 in estimating any damages at all is obvious 

 enough in any case; especially so in the 

 case of the destruction of a small new in- 

 dustry, and still more so in the case of an 

 embryo industry that has never raised its 

 head. 



Even if Sec. 2 of the Clayton bill apply, 

 we must assume that it creates a new 

 offence not included in either the Sherman 

 or the Wilson bills ; hence that there would 

 be no authority of law for any remedy ex- 

 cept those alluded to as given in the act 

 creating the offence, especially so inasmuch 

 as the Wilson law stands out unrepealed 

 as the sole legislative expression on the 

 subject of imports and is silent and un- 

 amended upon the subject of price dis- 

 crimination. 



If this conclusion be correct (and it is 

 almost as bad if the law be in doubt) there 

 exists a situation where the equal protec- 

 tion of the laws is not extended to the im- 

 porter and the domestic manufacturer 

 alike. On the contrary, a practical license 

 is given to the importer to do that which 

 the citizen is forbidden to do. 



The foreign manufacturer or importer 

 seldom has any inducement to act in re- 

 straint of trade as we commonly under- 

 stand it, or to monopolize competing plants 

 in this country ; quite the reverse. His ob- 

 ject is to build his monopoly by destroying 

 a domestic industry, and one of his most 

 potent weapons in doing this if he be well 

 enough intrenched is to drop prices in this 

 country below the prices which yield him 

 profits abroad for a long enough period 

 to drive out American competitors; when, 

 having the market to himself, he may raise 

 them again. 



The penalties to be invoked against the 

 foreign manufacturer and importer as 

 deterrents are utterly inadequate to deter 

 them from trying it on as before. The 

 most that they can suffer from their prac- 

 tises is, as we have seen, a commission's 

 order to desist, and perhaps in some cases 

 a suit, difficult to prove, for triple damages. 



What is needed is that these people 

 should have before their eyes the same 

 deterrents of fine, imprisonment, forfeiture 

 of goods, triple damages, possible injunc- 

 tion and dissolution, as have rendered 

 American business men careful neither to 

 restrain trade nor monopolize nor indulge 

 in unfair practises. The practises here 

 condemned in reality amount to much more 

 than mere unfair methods of competition; 

 they verge on an illegal attempt at monop- 

 olizing. It is of the essence of monopolizing 

 to exclude. The legislation of 1914 does 

 not subject unfair methods in general to 

 the criminal features of the anti-trust 

 laws, and this is doubtless wise. But this 

 particular offence is in its nature monopo- 

 listic and criminal, and it is the most effec- 

 tive form by which the foreigner can evade 

 our anti-trust laws and illegally injure or 

 destroy American industry. What is 

 needed is an amendment of the anti-trust 

 sections of the Wilson tariff act carrying 

 into it the prohibitions against monopoliz- 

 ing of the Sherman act, even when prac- 

 tised by one person alone, and expressly 

 defining the practise here condemned as 

 an act of monopolizing. The pains and 

 penalties of the Sherman and Wilson acts 

 would then follow on these practises as a 

 matter of course. 



At the present time, when there can be 

 no longer any thought of procuring addi- 

 tional protection of new industries through 

 the tariff, it will be rash to hope that Amer- 

 ican capital and enterprise should further 



