The sun. [volume] (New York [N.Y.]) 1833-1916, 1906-03-11
STRBfCH1NG TIE COMMENCE
CLAUSE.
APSumtas fer Federal Charters TOr Inter
state Corporations.

Ut0NO NpA
To THE EDITOR OF THE suN-Str; Here
are some further thoughts suggested by MT.
Haokett's letter In your issue OF March =
concerning the power OF Congress to fx rail-
road rates, and your editorial Of the same
date discussing the letter.
The purpose OF the clause OF the
Constitution was 10 enable Congress TO iA
the duty on imports from foreign countries
and to secure absolute free trade between
States.
Mr.. Blackstone defines a franchise to be
"a royal privilege or branch Of the kings
pfer0 eative subsistlnR In the hands of a sub
ject." and In this country. where each State
In sovereign except as to those matters
| which II has Entrusted TO the Federal Gov
eminent, the same definition holds good
substituting for the word royal" the WORD
States"
A common carrier which derives its fran
chlse from the State Ia simply exercising It's
functions as q delegate OF the State which
Incorporated It, and Ito rights can rise no
higher than the source from which they come.
So that to ascertain what power Congress
has TO regulate tho buslne8s OF carrying. IL
would seem to be necessary only to determine
what would be the powell Of Congress In case
the States owned and operated the railroads.
and engaged In the carrying business them
selves. and this would be a simple problem.
Ouh Io Dthlo WOutu iN'S e's
beyond It's own borders.
Here we encounter the anomalous sit
uation that actually exists where the subject
TO whom IA delegated the franchise by the
sovereign Ia exercising powers greater than
those po ssessed by the sovereign, for the
corporations chartered by one state are doing
business In a dozen States.
This shows how We have departed from the
original conception OF corporations which
was derived from England. where there Is
one sovereign instead Of forty-ave. as here.
One important feature Of corporations was
their liability to visitation by their founder.
This visitation included regulation and pun
lshment. or this Mr.. Blackstone says (Book
l.. Chapter iS, Section III):
proceed, therefore, next 10 inquire how these
corporations may be visited. For corporations.
being composed Of individuals subject TO human
~frallties, are liable. as well az private persons. to
devihte from the ends OF their institution. And
for shat reason the law has provided proper persons
to visit. Inquire into and correct all irregularities
that arise In such corporations. either sole or aggre-
gate and whether ecclesiastical, civil or
nary.
The King being thus constituted by law visitor
OF ali civil corporations, the law has also appointed
the place wherein he shall exercise this Jurisdiction.
which is the Court Of Kings Bench; where and
WHARF only all nisbehayior OF this kind Of corpora-
lions are inquired into and redressed. and all their
controversies decided.
This Is a most valuable and necessary
power, but what does 1t amount to In the case
Of d corporation which has received from
New Jersey O charter to do anything any
where except In New Jersey?
The only power competent to visit, regulate
and punish corporations engaged In inter-
state business Ia the Federal power, and the
only logical way Of vesting that power in the
Federal Government lie by lodging there the
sole power TO grant charters to such corpora
lions. This Is where Congress is going by
little. timid steps. Why not cover the dis
lance In one stride by a law requiring corpo-
rations engaged In Interstate traffic to take
out Federal charters. which viii put some
limit on the business done. 80 that carrying
companies Will do nothing at all but carry.
mining companies nothing but mine and rehn-
ing companies nothing but refine?
1t will be said hat this was not in the con-
temptation OF the fathers when they framed
the commerce clause Of the Constitution:
but. they never contemplated steamboats,,
railroads, applied electricity. gas. billion
dollar corporations, billion dollar Congresses
or fixing railroad rates. The art of making
one corporation grow where two grew before
was then unknown.
The answer 10 such objection must be
either in the words Of Chief Justice Marshall:
II must have been the intention of those who
gave these powers 10 insure. 80 far as human pru-
dence could insure. their beneficial execution.
This could not be done by conndine the choice OF
means TO such narrow limits as not 10 leave It In
the power OF Congress TO adopt any which might
be appropriate and which were conducive TO the
end. This provision is made In q Constitution
intended TO endure for ages TO come and conse.
QueRtly 10 be adapted to the various crises of
human Affairs. To have prescribed the means by
which Government should In all future time exc
cute its powers would have been 10 change entirely
the character OF the instrument and give II the
properties of q legal code. 1t would have been an
unwise attempt 10 provide by immutablo rules for
cxigencirs which, II foresecn at all. must have
been seen dimly. and which can be best provided
for as they occur. To have declared that the best
means shAll not be used, but those only without
which the power given would be nugatory. would
have been 10 deprive the Legislature OF the capacity
TO avail itself OF experience 10 exercise Its reason
and TO It's Legislation to circum-
stances. "a Wheat, ASA
Either this, or In the celebrated words Of a
practical statesman: ]
What's the Constitution between friendSf
WILKEsBARRE. March O.. j. B. w,
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