olize any part of the trade or commerce among the several states or with foreign nations, is guilty of a misdemeanor, and on conviction shall be punished by fine not exceeding $5,000, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court.1 3. Every person, association or corporation who shall make any contract or engage in any combination in form of trust or otherwise, or in any conspiracy in restraint of trade or commerce in any territory of the United States or the District of Columbia, or in restraint of trade or commerce between any such territory and another, or between any such territory or territories and any state or states or the District of Columbia, or with foreign nations, or between the District of Columbia and any state or states or foreign nations, shall be deemed guilty of a misdemeanor, and on conviction shall be punished by fine not exceeding $5,000, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court.2 4. Property owned under any contract or by any combination or person to any conspiracy (and being subject thereof) mentioned in the act, and being in course of transportation from one state to another, or to a foreign country, shall be forfeited to the United States, and may be seized and condemned by proceedings such as those provided for the forfeiture, seizure and condemnation of property unlawfully imported into the United States.3 § 885. Indictment. In considering an indictment under this act it must be borne in mind that there are no commonlaw offenses against the United States, and the federal courts cannot resort to the common law as a source of criminal jurisdiction; only such crimes and offenses are cognizable under the authority of the United States as are expressly designated by law, and congress must define these crimes, fix their punishment, and confer the jurisdiction to try them.* § 886. When congress adopts or creates common-law offenses the courts may look to the common law for the true meaning 1 See sec. 2 of the act. 2 See sec. 3 of the act. See sec. 6 of the act. 4 United States v. Hudson (1812), 7 Cranch, 32; United States v. Coolidge (1816), 1 Wheat. 415; United States v. Britton (1883), 108 U. S. 199, 2 Sup. Ct. R. 531; In re Greene (1892), 52 Fed. R. 104. and definition of such crimes if they are not clearly defined in the act creating them. The anti-trust act, in declaring that contracts, combinations and conspiracies in restraint of trade and commerce between the states and foreign countries are not only illegal, but constitute criminal offenses, goes beyond the common law; for while contracts in restraint of trade were unlawful at the common law, they were not misdemeanors or indictable. The anti-trust act creates a new crime in making contracts in restraint of interstate trade and commerce misdemeanors and indictable as such, but the act does not define what constitutes a contract, combination or conspiracy in restraint of interstate trade or commerce, and recourse must therefore be had to the common law for the proper definition of these general terms, and to ascertain whether the acts charged come within the statute. An indictment following simply the language of the act would be wholly insufficient, for the reason that the words of the statute do not of themselves fully, directly and clearly set forth all the elements necessary to constitute the offense intended to be punished.1 § 887. An indictment must be tested not by the general recitals and averments thereof, although in the words of the statute, but by the specific acts or particular facts which are alleged to have been actually done and committed by the accused; if these acts or facts do not, as a matter of law, constitute contracts, combinations or conspiracies in restraint of interstate trade and commerce, or a monopoly or attempt to monopolize any part of such trade or commerce, the indictment is insufficient, and averments that the accused "engaged in a combination" or "made contracts in restraint" of such trade or commerce, or "monopolized" or "attempted to monopolize," will not avail to sustain the indictment.2 § 888. An indictment under the act must contain a statement of facts constituting the offense charged, and a certain description of the offense; it is not sufficient to merely allege the offense in the language of the statute, in accordance with the general rule in criminal cases; for where the act becomes illegal and an offense only from the means used to effect it, under this act the indictment must state, where it is practicable, so much 1 In re Greene (1892), 52 Fed. R. 104. 2 In re Greene, supra. as will show its illegality and charge the accused with a substantial offense.1 $ 889. An indictment under the second section of the act should contain a distinct averment in the words of the statute, or in equivalent language, that by means of the acts charged the defendants have monopolized, or have combined or conspired to monopolize, trade and commerce among the several states or with foreign nations.? § 890. An indictment charging that defendants have monopolized the manufacture and sale of a certain product, without stating that in so doing they have monopolized trade and commerce in that product among the several states or with foreign nations, is insufficient.3 1 United States v. Nelson (1892), 52 Fed. R. 646. See also United States v. Cruikshank (1875), 92 U. S. 542; In re Greene (1892), 52 Fed. R. 104; United States v. Patterson et al. (1893), 55 Fed. R. 605. There is an elaborate discussion of the law in the briefs filed in this case. broadest possible construction; giv ing to the facts therein set forth and to the acts committed the meaning most favorable to the prosecution,— what is the offense charged? It is that the defendants, prior to the act of July 2, 1890, by lease or purchase acquired some seventy distilleries 2 United States v. Greenhut et al. throughout the several states of the (1892), 50 Fed. R. 469. United States v. Greenhut (1892), 50 Fed. R. 469. It is true that the indictment charges that the defendants have done certain things with intent to monopolize the traffic in distilled spirits among the several states, and that they have increased the usual prices at which distilled spirits were sold in Massachusetts, and have prevented and counteracted the effect of free competition in such traffic in Massachusetts. But none of these things are singly made offenses by the statute. The indictment in this particular is clearly in sufficient according to the elementary rules of criminal pleading, and charges no offense within the letter or spirit of the second section of the statute. See also In re Corning (1892), 51 Fed. R. 205, where the court said: "Now, giving to this indictment the Union, and from them produced seventy seven million gallons of distillery products, which then constituted seventy-five one-hundredths of the entire distillery products of the United States, and that they continued to operate said distilleries on the same extended scale after the act became a law; that part of these products were shipped to the district of Massachusetts, to be sold there and for transportation to other states, and sold by the defendants, through their distributing agents, to dealers in Massachusetts, under a promise on the part of the defendants that if said dealers should purchase their distillery products exclusively from the distributing agents of the defendants, and should sell the same at prices not lower than the list prices of such distributing agents, and should at the expiration of six months after such purchases certify : § 891. Where all the acts and matters charged in the indictment as criminal are charged as the acts of a corporation, and that they had so exclusively purchased from defendants' agents, and had so sold at the said prices, then defendants would pay to such deal ers a rebate of five cents per gallon on all their purchases. The indictment avers that the price at which said products sold was higher than had before that time prevailed, and that by said arrangement defendants controlled and augmented the prices of said products, and by said means exacted and received from the people of the district of Massachusetts a large amount of money over and above that usually received for such products. "These are the substantial facts relied upon to constitute the crime. Of course, it is alleged, with the usual particularity, that all this was done in pursuance of a combination to restrain trade between the states, and to monopolize to the defendants the traffic in the several states in distillery products, and done with the intent and purpose to control the production of said articles and fix the prices at which they should be sold. But it is not sufficient to charge an unlawful intent, or to aver that a combination or a course of business is in restraint of trade, or a monopoly of trade, in order to constitute a crime. Acts relied upon to make the offense must be stated. A combination of act and intent is needed to constitute a crime. No averment of intent alone is sufficient; neither is any amount of act alone; the two must combine. "Assuming an unlawful intent and purpose of a combination to restrain trade and monopolize traffic in these distillery products as charged in the indictment, do the acts set forth constitute such restraint and monopoly? In what respect did the sales made, as charged, restrain trade or monopolize the traffic in distillery products? These terms, as used in the act of congress under consideration, are well defined at common law, and must be considered with reference to such established meaning. The indictment was prepared with great care by the district attorney of Massachusetts, and it is safe to assume that he has charged therein all the acts which he believed it possible to prove upon the trial. Assuming this to be true, the indictment is significant in what it omits to charge in the respects above referred to. It is not averred that, when the defendants purchased their seventy distilleries, they obligated the vendors not to build other distilleries, or not to continue in the distillery business in the future. It is not averred that the defendants attempted in any way to bind the vendors to withhold their capital or skill or experience in the business from the public in the future. There is no averment that the defendants in any manner or at any time attempted to control the business of the remaining one-fourth of the distilleries in the United States, or in any way attempted to limit their output, or by agreement with them control the price at which their products should be sold, or in any degree restrain their trade, or limit the territory over which their trade should extend. The full scope of the averments in this respect is that before this law was passed by congress the defendants legally purchased with their own capital three-fourths of the distilleries in the United States, and that they produced seventy-seven million gallons of distillery products, and sold these products in the markets of the several states the relation of the accused to the corporation is not made to appear, the indictment is defective.1 § 892. Habeas corpus.-On a petition for a writ of habeas corpus by a person in custody awaiting removal to another state, it is the duty of the court to consider and determine whether the indictment pending against petitioner in the other state charges either a criminal offense or an offense that comes within the jurisdiction of the other court. And where the indictment is under the anti-trust act, and shows no offense committed, the person will be discharged.2 § 892a. Statutes of limitation.-Actions to recover damages under section 7 of the anti-trust act are governed by the statute of limitations in force in the state where the damage accrued; such an action is not to recover a penalty or forfeiture within section 1047 of the Revised Statutes of the United States." at the best possible prices, and that they continued so to own and operate said distilleries, and so to sell their products, after the passage of this act. This they did without any attempt at any time by contract to control the production of the other distilleries, or the prices at which they should sell, or without any contract with such distillers in any way restraining trade. The indictment, therefore, in my judgment, wholly fails to charge a crime, so far as the purchase of said distilleries or their manufacture of distilled products before the passage of the act is concerned, or so far as they are charged with continuing to own and operate them with unlawful intent after the passage of the act." where it is otherwise specially provided, unless the same is commenced within five years from the time when the penalty or forfeiture accrued; provided, that the person of the offender, or the property liable for such penalty or forfeiture, shall, within the same period, be found within the United States; so that the proper process therefor may be instituted and served against such person or property." The decision of the court in the case last cited turned upon the question whether a suit for damages under section 7 of the act was a penal action to enforce a penalty, or an action to enforce a civil remedy for a private injury. In this connection the district court said: "This ques 1 In re Greene (1892), 52 Fed. R. 104. tion, whether the action authorized 2 Ibid. is intended as a punishment or as a compensation, obviously involves the distinction between a civil remedy and a penal action in its primary or international meaning, this being the sense which was under consideration in the leading case of Huntington v. Attrill, 146 U. S. 657, 13 Sup. Ct. R. 224, 36 L. Ed. 1123, in which Mr. Justice Gray, for the court, said: 'In the |