The sun. [volume] (New York [N.Y.]) 1833-1916, 1908-04-28

| used 10 grapple with the new conditions.
Al almost the same time, about twenty
wears since. the effort was made to control
I combinations by regulating them through
the Interstate Commerce Commission and
10 abolish them by means OF the antitrust
act, the two remedies therefore being IN
part mutually incompatible. The interstate
commerce law has produced admirable
results. especially since II was strengthened
by the Hepburn law two years ago. The
antitrust law, though it worked some
good, because anything IA better than
anarchy and complete absence OF regula-
ton. nevertheless has proved in many
respects not merely inadequate but mis-
Chievous.
Twenty years ago the misuse Of corporate
power had produced almost every con-
ceivable form Of abuse and had worked
the gravest injury to business morality
aud the public conscience. For a long
time Federal regulation Of interstate com.
merce had been purely negative, the national
judiciary merely acting in isolated cases
TO restrain the State from exercising a
power which it was clearly unconstitu-
tional as well az unwise for them TO exercise,
but which nevertheless the national Gov
eminent itself failed TO exercise Thus
the corporations monopoliZing commerce
made the law for themselves, State power
and common law being inadequate TO ac-
oomplish any effective regulation and the
national power not yet having been put
forth. The result a mischievous in the
extreme and only sh~ortsighted and utter
failure 10 appreciate the grossness OF the
evils to which the lack Of regulation gave
rise can excuse the we'll meaning persons
who now desire TO abolish the antitrust
law outright or 20 amend il by simply con-
demning unreasonable combinations.
Power should u~nquestionably be lodged
somewhere in the Executive branch OF the
Government TO- permit combinations which
will further the public interest; but it must
always be remembered that as regards
the great and wealthy combinations through
which most Of the interstate business OF
to-day ia done, the burden Of proof should
be on them to show that they have a nght
TO exist. No judicial tribunal has the
knowledge or the experience to determine
In the first place whether a given COM
bination ia advisable or necessary In the
interest Of the public. Somebody whether a
commission OF a bureau under the Depart
ment of Commerce and Labor, should be
given this power. My personal belief Is
that ultimately we shall have to adopt a
national incorporation law, though | am
well aware that this may be impossible
at present.
Over the actions Of the executive body in
which the power is placed the courts should
possess merely a power OF review analogous
10 that obtaining in connection with the
work Of the Interstate Commerce Commits
sion at present. To confer this power would
not be a leap in the dark; II would merely be
TO carry still further the theory OF effective
governmental control Of corporations, which
responsible for the creation Of the Inter-
state Commerce Commission and for the
enlargement Of its powers and for the orea-
ton OF the bureau OF corporations. The
interstate commerce legislation has worked
admirably. II has benefited the public;
it has benefited honestly managed and wisely
conducted railroads; and in spite Of the fact
hat the business Of the country has enor-
mously increased. the value OF this Federal
legislation has been shown by the way in
which il has enabled the Federal Govern
ment TO correct the most pronounced Of the
great and varied abuses which existed in
the business world twenty years ago
while the many abuses that still remain
emphasize the need Of further and more
~thoroughgoing legislation.
Similarly the bureau Of corporations /,
has amply justified its creation. In other
words, It is clear that the p%rinciples EN-
business world have worked well, and they
can now be employed TO correct the evils
that further commercial growth has brought
more prominently to the surface. The
powers and scope Of the Interstate Com
Commission and OF any similar body,
such as the bureau Of corporations, which
has TO deal with the matter in hand, should
be greatly enlarged so as to meet the re-
quirements of the present day.
The decisions Of the Supreme Court in the
Minnesota and North Carolina cases illus
49,. tpnnAaaikla 10 a Atal norV..I -
national commerce. The States cannot con-
troll il. All they can do is TO control intra-
state commerce., and this now forms but a
small fraction Of the commerce carried by
the railroads through each State. Actual
experience has shown that the effort at State
is sure TO be nulliled In one way or
sooner OF later. The nation alone
can act with effectiveness and wisdom:
il should have the control both Of the bust
ness and Of the agent by which the business
Is done, for any attempt TO separate this con-
troll must result In groteeque a~bsurdity.
This means that we must rely upon national
legislation TO prevent the commercial abuses
that now exist and the others that are sure
TO arise unless some efficient governmental
body has adequate power Of control over
AT present the failure Of the Congress 10
Utilize and exercise the great powers con-
upon II as regards interstate com
nerce leaves this m TO be reCl-
ated not by the State nor yet by the Con-
yress but by occasional and necessarily
inadequate and one sided action Of the
Federal judiciary. However upright and
lble a court is, II cannot act constructively;
I can only act negatively or ~destructively
u an agency Of government; and this
means that the courts arc and must ALWAYS
,e unable TO deal effectively with a problem
Ike the present, which requires construct