The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1897-06-24

so far as these things consist in the
mere magnitude of the scale upon which
business is carried on it is vain to rail or
struggle against them. The forces that urge
men and capital into larger combinations
are irresistible. That way is the path of
destiny.
GRAVE SOCIAL QUESTIONS
How shall society deal with these ques-
lions? There are plans enough proposed.
The newspapers and magazines are full of
them. The speakers desk is loaded with
them in every legislature. But they are as
a rule so erastic and revolutionary that con-
eervative men dare not favor them. Mean
while the tendencies and forces which gave
rise to tbs conditions that make the trouble
continue in activity, the social discomfort
widens and deepens. and we drift along, not
knowing whittier.
These problems are very commonly
thought of and treated as political in their
character, and they are so in some aspects.
But 1 think they are at bottom questions
of law. If a trust or combination is unlaw-
full 1t is because it invades someone's le-
gal right, and so of strike or boycott.
The. problem Is to find some method Of
dealing with these conditions which Will
not bring society and courts into futile col
lision with irresistible economic laws and
forces. nor dissolve the fabric of society
in chaos nor swallow up all Individuality
OF resistance in state socialism. am
afraid of the French fashion of rebuilding
society every few years on new UeGIdra-
ton of civil rights Anglo-Saxon ideas of
the rights Of men have been either eStab-
lished by war or worked out by orderly
processes of law. To reconstruct them on
basis Of theory would be a hazardous eX-
pertinent.
TT seems TO me therefore that we must
look chiefly to the principles of the common
law and to it's inherent function growth to
remedy these evils. There must be legis-
lation. but it must be legislation in aid of
the common law-not a substitute for 1t.
And 1t must be enforced and applied by
the processes of the common law.
ITO illustrate Gny meaning let me return
to the subject of trusts and monopolles. L
have pointed out that the wrong Of them,
when any exist, lies in their invasion of
someone's legal right. This, we may sup
pose, consists in the artificial control and
unjust enhancement of prices. Any combi-
nation of men or capital which puts it with
in the power of those controlling 1t to ad-
vance prices presents temptation to do 1t;
And the time was when the presence and
danger of that temptation was sufficient
reason for forbidding the combination. But
that time has passed by. To prevent all
combinations of men or money which may
result in unjust enhancement of prices is
impracticable. The fatal defect in most re-
cent legislative acts on the subject is that
they deal with the problem in that way
and remain dead letter on the statute.
But suppose the act were directed only to
such combinations as were intended to or
actually operated TO enhance prices unjust
ly. The law would then reach in its terms
directly the wrong to be remedied
TRUSTS AND COMMON LAW.
'There is no need of any legislation to
enable the courts TO deal with contracts in
restraint of trade or creating monopolies.
The resources of the common law are suf-
ficient for that purpose But that is not
an adequate remedy for the evil. The COM
munities and sympathes of interest which
support such transactions are effectual
peacemakers, and the participants in them
usually settle their controversies out of
court. There is needed some penal legisla-
ton, practical of enforcement. and some
sort of stimulus, whether of aroused public
opinion or pecuniary reward or personal
punishment, to impel the prosecuting Off
GERS to enforce the law. And 1 can think
of no other definitiep Of the offense which
can be applied in practice than the one
which have stated--that it shall cover all
combinations or arrangements among men
intended and tending to enhance prices un-
justly.
1T may be said that it would be impos-
slbIe to try such a question. 1t would be
difficult, certainly, but what right Las any
one to say that it would be impossible?
The courts pass upon the intent of men in
nearly all criminal prosecutions. There
would be no insuperable obstacle in that
part of the investigation. To decide UPON
the justice of prices would involve more
novelty and more difficulty. but to say that
It could not be done is to say that the
law is incapable of fulfilling it's proper
functions. The essence of the wrong is the
injustice Of the prices. 1t is to pursue in
vestigate, prevent and punish wrongs that
the law exists. New wrongs or new forms
of wrong require new remedies. IT is to
find out and apply new remedies Tor new
wrongs. or better remedies for old wrongs,
that the function Of growth and accom-
exists in the common law Moreover what
ever may be the difficulty of fixing a stand
for fixing such standards the rorats ere
far better able to grapple with the Prob
lem than the Legislature. Thcy can try
experiments which are Impossible To Try ny
statute. One trial fudge v i'll lali with the
question according to the particular cir
cumstances of the case Before him and his
own capacity to combine and apply prn-
cipleS. Another Judge will approach the
subject little differently The Supreme
educe from them the true principles of Law
broadly applicable to such cases as a class.
THE same line of thought and su@.-cs-
ton is equally applicable t. the labor Iues-
ton. Everyone recognizes its transcendant
Importance and inherent difficulty. But It
appears to be assumed on all hands that
the difficulty must he overcome by leglsa-
ton, and we have NJ end nf schemes for
yond the ability of legislation. .OnIr lie
common law and its processes are equal to
it. There must be some legislation. enc ugh
to confer jurisdiction on the subject mat
ter; the remainder must be left to the
courts.
NEW ARBITRATION Law.
eve have in the Jaw enacted by the last
General Assembly creating lab5r COLI
mission Illustration nf ny thought. That
act provides Tor ne voluntary afbttt1F on
of labor disputes by & board of arbitrator.
of which the judge 1f tie Circuit CoLIt IF
the circuit within which the dispute is
pending is member. The aw&rd Of the
board is directed to be spread on the rec
ord of the court in which the judge pre-
sides. Any party % the proceeding nay
file a petition in the court reciting the
proceedings and award and alleging that
any other party is not obeyng the award
Thereupon a rule is to issue requiring the
delinquent party to appear and show cause.
After a hearing on the petition the court
Is authorized to make such order in per-
sonom as will give just effect to the award.
There is where the difficult part of the
problem appears. How are such awards to
be enforced? The act does not attempt to
answer the queStion-Smply turns il over
to the courts, with plenary power to do
whatever may be necessary to give just
effect to the award'-those are the words
of the act-subject only to the proviso that
there shall be no Imprisonment except In
case of wllful or contumacious contempt.
1T is not to be expected that frequent oc-
Casion will arise for the enforcement of
awards by the courts. IT'S fair to assume
that, as a rule, parties who have volun-
tarily Submitted their dispute to the deci-
sion of a board created by the State, know
the court to enforce il. will abide the re-
suit. When the contrary occurs the judge
must meet the emergency the best way he
can The recalcitrant party may be
employer who refuses to open his shop
doors. Will the court compel him to do so
by fine or Imprisonment? Or suppose a
whole body of workmen refuse to work On
the terms directed in the award? What