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hy them, the people of a city can solve these questions if they will, and if they will not, their blood is on their own heads, and that issue will not be discussed by me. With the exception of public utilities, practically all corporations of any magnitude are engaged in interstate commerce, or commerce with foreign countries. The Federal government, under the decisions of the United States Supreme Court, is sensitive in asserting its exclusive control of interstate commerce and of commerce between this and foreign countries; both of these are usually considered under the general title of interstate commerce. As I have said before, the common law in fixing legal rights is practically sufficient, and the Sherman Act as amended is practically sufficient. in furnishing opportunities for remedies. There should be some method of law which will insure the proper enforcement of the remedies of the Sherman Act. Each large corporation which is violating this law will, we can take it for granted, be controlled by able men who are seeking to protect their company, and many a Federal officer, and many an attorney-general may find himself unduly impressed with the regularity of corporate acts, and perhaps be indisposed to develop the tremendous opposition which an issue would make. Given a simple provision requiring the district attorney in every district to investigate the dealings of every corporation doing interstate business and transacting any business in his district; requiring investigations by the grand jury of each of such districts of all such corporations, and reports by district attorney and grand jury either to their own courts or to Washington, and we would be very apt to find, when necessary, some district attorney, or some grand jury not dominated as we have too often seen authorities dominated. This opinion is applicable either to labor trusts or monied trusts. For, using again the coal strike as an instance, the man is blind indeed, who does not see that in the Mitchell and Baer trusts each was equally wedded to the success of his own monopoly, and each equally indifferent to the horrible effects which his course might have upon the public. The miners wanted better pay and different rules, the companies did not wish to give it. Whichever was right, and whichever was wrong, the public bore the burden and paid the cost and loss. We can not tolerate a government dominated by paternalism or socialism, but we should demand that the great principles of protection to all classes of people shall be applied to meet the modified conditions of modern life.
No mere statute describing what is and what is not an illegal combination, can answer the purpose. There must be the common law latitude of interpretation. The changing conditionsof modern life render necessary increase of combination. The merchant or the financier of one hundred years ago, who boasted that he knew every detail of his business and was familiar in detail with every transaction in his business, could scarcely to-day carry this practice into the office of the president of a factory, transcontinental railroad, or department store.
These changed conditions have necessarily increased enor-mously all enterprises and concurrently required additional combination. Such increase is necessary and right, but, like many a good, it brings its accompanying danger. No statute and no judge has ever been able to give a definition applicable to all cases, defining with accuracy the line of what combination was or was not against public policy. Some combinations are necessary and must be protected. The right of the individual to the use of his capital must be protected.
Where does the combination cease to be beneficial and becomehurtful? Where does it cease to be merely hurtful and become illegal ? This must at last, whether there be statutes or whether the common law be relied upon, be determined by an able, fearless, unbiased judiciary. When a labor trust or a monied trust seriously interferes with the opportunity of any citizen to use his capital as I have before described the word capital, or where it unduly raises the price of a product, or when such a trustt seeks to dominate the government, it has in either event passed beyond its legitimate business province, and in the latter it has become a public enemy.
Trusts are punishing and injuring so many people in so many ways that it may be expected with certainty that the logic of events, the swinging of the pendulum, will develop needed national and State legislation and decision, preventing and curbing harmful consolidation, and at the same time protecting the rights of all concerned.
In 1865 Abraham Lincoln wrote: “I see in the near future a crisis approaching that unnerves me and causes: me to tremble for the safety of my country. As a result of the war, corporations have been enthroned, and an era of corruption in high places will follow, and the money power of the country will endeavor to prolong its reign upon the prejudices of the people until all the wealth is aggregated into a few hands and the Republic is destroyed. I feel at this moment more anxiety for the safety of the country than ever before, even in the midst of
In 1890 Senator Sherman, in advocating the bill that bears his name, said, among other things: "Mr. President, the object of this bill, as shown by the title, is 'to declare unlawful trusts and combinations in restraint of trade and production. It declares that certain contracts are against public policy, null and void. It does not announce a new principle of law, but applies old and well-recognized principles of the common law to the complicated jurisdiction of our State and Federal government. Similar contracts in any State in the Union are now, by common or statute law, null and void. Each State can and does prevent and control combinations within the limit of the State.”
DeTocqueville has said that the lawyer was the great conservator, and that like all wise conservators, in times of radical progress he held back; in times of undue conservatism he pushed forward. Most true should this be of the bench.
There is probably at present sufficient law to properly restrain corporate aggrandizement. The Sherman Anti-Trust Act, approved July 2, 1890, 26th Statute, 209, gives broad authority to the Federal court to interfere with any monopoly. It declares to be 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,” and uses the following:words: "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, is hereby declared to be illegal. .... Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a misdemeanor.”
Under the Sherman Act the Knight case was argued in October, 1894, and reported 156 U. S. Rep., p. 1, and the Addyston Pipe and Steel Company case was decided December 4, 1899, and reported 175 U. S. Rep., p. 211. In the Knight case Mr. Justice Harlan dissented in an unanswerable opinion. The real defendants, the American Sugar Refining Company, werc at that time one of the richest corporations in America, astoundingly intrenched in State and Federal influence, so close and so useful to many statesmen of national reputation, that some of these statesmen received public attention, on account of this company, more emphatic than complimentary. After the passage of the Sherman Act, the American Sugar Refining Company bought a number of refineries of other States, constituting a practical monoply of all the refineries of the United States. The Supreme Court held this legal upon the theory that there was nothing to show that the purpose of the combination was to sell the product, and therefore the company was not engaged in commerce, and that their consolidation therefore, accomplished no interference with competition in interstate commerce. This decision of the Supreme Court can not be sustained. In power of reasoning and soundness of conclusion, the opinion of the court does not compare with the dissenting opinion of Mr. Justice Harlan: "It is said that there are no proofs in the record which indicate an intention upon the part of the American Sugar Refining Company and its associates to put a restraint upon trade or commerce. Was it necessary that formal proof be made that the persons engaged in this combination admitted, in words, that they intended to restrain trade or commerce? Did any one expect to find in the written agreements which resulted in the formation of this combination a distinct expression of a purpose to restrain interstate trade or commerce? Men who form and control these combinations are too cautious and wary to make such admissions orally or in writing. Why, it is conceded that the object of this combination was to obtain control of the business of making and selling refined sugar throughout the entire country. Those interested in its operations will be satisfied with nothing less than to have the whole population of America pay tribute to them. That object is disclosed upon the very face of the transactions described in the bill. And it is proved—indeed, is conceded—that that object has been accomplished to the extent that the American Sugar Refining Company now controls ninety-eight per cent. of all the sugar refining business in the country, and therefore controls the price of that article everywhere. Now, the mere existence of a combination having such an object and possessing such extraordinary power is itself, under settled principles of law, there being no adjudged case to the contrary in this country—a direct restraint of trade in the article for the control of the sales of which in this country that combination was organized.” 156 U. S. Rep., p. 43.