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Only power, in other words, could fight (excessive) power; power that spanned the continent required countervailing force that also spanned the continent; and only criminal law could engage the full force of national will and national muscle. The Sherman Act was the result of this conjunction of attitudes. It is still in force today. The Sherman Act was (and is) in form a criminal statute.39 It declared “illegal” any “contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce”; every person who “monopolized” or combined or conspired to monopolize “any part of the trade or commerce among the several States” was guilty of a misdemeanor.

For a law so famous and so important, the Sherman Act was surprisingly brief: less than two pages of text in the Statutes at Large. It was also exceedingly terse, not to say vague and ambiguous. Nowhere in the act was there any definition of key terms; “monopoly” and “restraint of trade” were left unexplained. The act set up no mechanism of enforcement—no administrative agency, no machinery at all. It was left to whatever energy the attorney general and his small staff might muster. The early years of enforcement were, to say the least, somewhat fitful and halfhearted; at the turn of the century there was little to show for all the fanfare and hooplah.40 The courts were lukewarm themselves. A district judge in the Midwest, for example, smothered an indictment against lumber dealers who had conspired to raise lumber prices; and an attack on the cash register industry was also a failure.41

The Supreme Court delivered some serious setbacks to enforcements. One of the worst monopolies was the sugar trust; the American Sugar Refining Company dominated the business and was moving to absorb the last few independent sugar refiners. But the government’s lawsuit, U.S. v. E. C. Knight Co. went down in flames.42 This was a monopoly of “manufacture,” and not of “commerce” said the Court; and the Sherman Act had nothing to do with making, only with trading and selling. In later cases, the Court showed more gumption; but on the whole, the Sherman Act’s potential for trust-busting was still only a promise in 1900.

It is easy to be cynical about this whole exercise in prosecuting big business. Much of it was smoke and mirrors, or public relations. The public had been saying, in effect, do something. Congress did something: it passed a law. So, too, did the states. Two-thirds of them had little “Sherman Acts,” or other antitrust laws, by 1900. For obvious reasons, the state laws were largely symbolic. The federal act itself was a promise, a hope, a statement of policy, and not much more. The net results were, almost certainly, microscopic. Ironically, antitrust law was used as a weapon against labor unions and as a strikebreaking tool; in 1894, Eugene V. Debs felt its lash in the midst of a railroad strike.43 This was surely not what the clamoring citizens and small shopkeepers had in mind; but the judges had it in mind, and big business, too; and this is what counted at the time.

Corporate Crime

At one time, there had been technical doubts about whether the state could indict a corporation at all. Could an “artificial being,” a corporation, commit a crime? By mid-century, the legal consensus was yes. Joel Bishop, who wrote a leading treatise on criminal law, could see “No reason ... why a corporation, having by law the power to act, should not also have by law the power to intend to act; and mere intentional wrong acting ... is all which is necessary in a class of criminal cases.”44

This was, of course, not an academic question; at least not totally. Major regulatory laws applied to corporations and other business associations, sometimes explicitly. To pick one example, an Illinois law of 1891 made it “unlawful for any person, company, corporation or association” in the “mining or manufacturing business” to run a company store; another act required companies in the manufacturing, mining, “mercantile,