in behalf of such company, during or in respect of such period; and (C) from engaging in business, whether on his own account or as an officer or director of any other company, or otherwise, in competition with such company, during such period; and

"(2) such company shall likewise be enjoined (A) from receiving any service, direct or indirect, whether voluntary and uncompensated or otherwise, from such officer or director, during such period; and (B) from paying any compensation directly or indirectly, whether in the form of salary, commission, bonus, share of profits or otherwise, to or in behalf of such officer or director during or in respect of such period.”

SEC. 5. Such Act is amended by inserting the following new sections after section 14 thereof:

"SEC. 14A. Any company which violates any provision of the Sherman Antitrust Act, the antitrust provisions of the Tariff Act of 1913 or section 3 or section 7 of this Act shall forfeit to the United States a sum equal to twice the total of net income received by or accruing to such company (A) during each month within which any such violation or any part thereof shall have occurred, (B), in respect of any operations of such company during each such month, and (C) otherwise attributable to each such month: Provided, That if the sum computed as aforesaid should amount to less than $25,000, such forfeiture may nevertheless be fixed by the court in an amount not exceeding $25,000. Such forfeiture shall be payable into the Treasury of the United States and shall be recoverable in a civil action by the United States. For the purposes of this section, net income shall be computed in accordance with the method of accounting regularly employed in keeping the books of such company, if such method is in accordance with recognized principles of accounting and clearly reflects the income. If no method of accounting has been employed in keeping the books of such company, or if the method employed does not accord with recognized principles of accounting or does not clearly reflect the income. the computation shall be made by a method which does conform to recognized principles of accounting and which does clearly reflect the income. In any such action tried by jury, the court may require the jury to return a special verdict upon the question of liability. If in any such case, the jury in such special verdict shall find the plaintiff entitled to a forfeiture, or if, in any such action tried by the court without a jury, upon the conclusion of the taking of evidence upon the question of liability, the court shall be of opinion that the plaintiff is entitled to a forfeiture, the court, for assistance in the computation of such forfeiture, may require such company to retain at its own expense an independent public accountant satisfactory to the court, and may utilize the assistance of the Federal Trade Commission or an officer thereof as a master in accordance with the procedure set forth in section 7 of the Federal Trade Commission Act."

"SEC. 14B. Any two or more of the proceedings hereinafter enumerated, if instituted against the same parties, or if relating in whole or in part to the same act or acts, may be consolidated:

"(A) A proceeding in the name of the United States to prevent and restrain a violation of any provision of the antitrust laws;

“(B) An action under subsection (c) of section 14 of this Act;

"(C) An action under subsection (d) of section 14 of this Act; and "(D) An action under section 14A of this Act:

"Provided, That upon any such consolidation which involves an action under said subsection (c) of section 14 or an action under said section 14A, the right of trial by jury shall be preserved.”

SEC. 6. Such Act shall be amended by adding the following new section: "SEC. 27. This Act may be cited as the 'Clayton Act.'"

Senator O'MAHONEY. I Would also like to have incorporated in the record at this point the report received from the Department of Justice.

Senator BURKE. Immediately following the text of S. 2719, there will appear in the record this memorandum submitted by the Department of Justice.

(The memorandum referred to is as follows:)

DEPARTMENT OF JUSTICE, Washington, D. C., July 27, 1939.

Memorandum for Senator O'Mahoney.
This memorandum supplements the memorandum I sent you this morning
in regard to the number of complaints, investigations, and suits in the Antitrust
Division.

Reliable comparative figures on the number of complaints, investigations and suits are available only for the last 8 fiscal years. We have information on the number of suits instituted during each year since 1890, but the Division records on complaints and investigations have not been compiled on a comparative basis prior to the year ending June 30, 1932. Comparisons for the last 8 years, however, reveal the following:

1 Complaints received during the fiscal years 1934 and 1935 include more than 1,000 complaints relating to the N. R. A.

Information is available on the number of antitrust suits instituted and terminated each year since 1890, and I am attaching hereto a list of the suits insti

tuted and terminated each year from 1890 to 1931. I regret that I cannot furnish on this short notice any information on the number of complaints and investigations for the years 1890-1931. Please note that the list of suits instituted and terminated between 1830 and 1931 was compiled on the calendar-year basis rather than the fiscal-year basis, and that the detailed information in the above table covering the years 1932 to 1939 is on the fiscal-year basis.

WENDELL BERGE, Special Assistant to the Attorney General.

Senator O'MAHONEY. I made that request because I thought it would be advisable to have in the printed hearings the exact text of the bill and the technical analysis of the bill prepared by the Department of Justice, inasmuch as the statement which I intend to present now is based more largely upon the fundamental principle upon which the bill is based.

PROTECTION OF FREE, PRIVATE ENTERPRISE

Incomparably the most important issue of our times is whether or not the system of private property is to be maintained. By the term "private property," I conceive to be meant the inalienable right of individual men to work, to save, and to acquire property which they may call their own or which they may dispose of or transmit as they please, a right which they are entitled to maintain against all other men, against all aggregations of men, and even against government itself. It was because the founders of our Government believed in this principle as one of the necessary pillars of a free society that they wrote into the fifth amendment to the Federal Constitution the clear provision that no person should "be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use without just compensation."

PRIVATE PROPERTY RIGHTS ESSENTIAL TO DEMOCRACY

Without the right to private property I conceive there can be no such thing as a democratic government. Any force or power which threatens this right threatens political liberty itself. If we

look around the world we see political liberty and democracy vanishing before the advance of other systems of government which not only deny the essential liberty of the individual and his right to private property, but which are founded upon the principle that the individual has no right whatsoever which the State is bound to respect.

That the people of America are unalterably opposed to all invasions of the right of private property no one can doubt. This opposition has been manifested throughout the life of the Republic by constant and continuous opposition on the part of the masses of the people to the expansion of the powers of government. Though complete and plenary authority over all interstate and foreign commerce was granted to the Congress of the United States by the Constitution, Congress has always been slow to extend that power and it has never used it to the utmost. Although it has recognized from the very beginning that in the interests of all, in the interests of maintaining order, in the interests of preserving the right of private property, it has been and is necessary for Congress to establish the rules of commerce by which all must abide.

REASON FOR GROWTH OF BUREAUCRACY

Although this is unquestionably the fundamental belief of our citizens, the anomalous fact is that for almost 50 years we have been building in Washington a constantly expanding bureaucracy exercising more and more discretionary power over the economic lives of our people. This has been done though the overwhelming sentiment of the people is opposed to big government. It becomes important, therefore, to understand why boards and commissions exercising discretionary power over the commercial activities of the people have been multiplied in a land which is passionately devoted to the principle of economic freedom.

To me the reason is plain. It is because the commercial boundaries of our time have expanded far beyond all local and geographical frontiers. The village, the town, the county, the State, and not even the Nation confines the commercial activity of the modern world. A man may now by the railroad, the automobile, the airplane, the telephone, and the radio extend his influence far beyond the radius by which our grandfathers and even our fathers were bound. But more than that, because the instruments of travel and communication made available to humanity by science cannot be developed by individuals acting alone, we have found our commercial enterprises carried on, not by individual men with their own capital, but by aggregations of men with the capital, the energy, and abilities

of thousands.

PEOPLE TURN TO WASHINGTON TO GUARD ECONOMIC WELFARE

When men could no longer protect their own economic welfare against what they deemed to be the unfair and improper activities of other men not subject to the jurisdiction of their local laws, they turned to Washington for a remedy. When the railroads, because they were spanning the whole continent, could no longer be regulated in the public interest by the States, the people turned to Wash

ington and set up the first of the regulatory commissions, the Interstate Commerce Commission. From that day down to this as the sphere of commercial activity broadened, it became more complex. More and more commissions were established. Men have complained about the alleged interference of government in their activity and political campaigns have been waged upon the slogan that there should be less government in business; but it is a notable fact that once established these commissions and bureaus are never disestablished. Quite the contrary: their powers are expanding. In this session of Congress, for example, there is pending a bill to expand the powers of the Interstate Commerce Commission so as to include shipping, and it is only a few years since trucking was brought under its jurisdiction. The significant thing is that there never is any effective opposition to this expansion of Federal regulatory

power.

Most of the bills pass without a record vote. We set up a Communications Commission because the inventive genius of man has given us aviation. We complain about the details of the administration of these laws, but there is no effective resistance to the principle of regulation upon which they are based, because it is universally recognized that there must be law and order and that there is no agency which may properly establish law and order except the government of all the people.

WOULD FREE BUSINESS FROM GOVERNMENT DISCRETIONARY CONTROL

I have indulged in this preliminary outline of fundamental and elementary principles before undertaking a discussion of the bill (S. 2719) "To provide additional civil remedies against violations of the antitrust laws," because I am well aware of the fact that this bill has been criticized as another attempt to expand the power of government in the discretionary control of business.

I deny it. And I want to make it perfectly plain that the primary reason for the introduction of this bill is because I believe that business should be as free as possible from discretionary Government control. I want to liberate business. I want to make it unnecessary to maintain in Washington great armies of Federal agents. to watch and superintend the activities of the people; but I know, and I think every sane, intelligent person who devotes a clear mind to this problem, a mind free from emotional reactions, must also know that if business is to be kept free from Government interference it must first be kept free from the arbitrary interference of private individuals who by violating the plain provisions of fundamental ethics and of law seek to acquire undue control for themselves over the commercial activities of the people.

BILL WILL BENEFIT GREAT MAJORITY OF BUSINESSMEN

I say that this bill, if enacted into law, will be beneficial to the great majority of businessmen in America, first, because it will protect them against illegal attacks by other businessmen and, second, because by preventing monopolistic practices before they take place, it will make unnecessary the continued building up of Government bureaucracies.

167420-39-pt. 1- -2