A commission might have been secured and would have educated the public. As it is, the measure introduced by Representative Hepburn followed the outlines of the Chicago program as drawn in a bill by the committee on legislation of the National Civic Federation, remodeled by the Federal Bureau of Corporations, considerably increasing its power, with a section intended to protect the unions and granges, one combined to protect the price of labor and the other to protect the price of farm products, from the possible consequences of the Supreme Court decision in the Danbury Hat case, though not on the labor boycott in interstate commerce.

But this section served the remarkable purpose of showing that all concerned had failed to understand how inexorable was the national determination that there should be no combination without regulation. If there has been anything taken for granted in discussion and conference on this subject by congressmen and economists, by the learned counsel of great corporations and the heads of unions, by newspapers and by federal officials from President Roosevelt down, it has been that legislation permitting combination to railroads and trusts, under adequate supervision, would pass all the easier if it relieved unions and granges from their anxieties under the Sherman act.

Nothing of the kind. The instant it became clear that the ambiguous section already noted above might free unions from the Sherman act, the measure which held it was halted. When the Supreme Court in the boycott decision held a union to exactly the same responsibility as a trust under the Sherman act, the House of Representatives could not, like the House of Commons, be brought to free the labor organization from responsibility for its acts. Representatives were overwhelmed with protests which made them, from Speaker Cannon down, clear that the law must stand as the Supreme Court left it. What every one forgot was that, while the American Federation of Labor has 2,000,000 members, there are 1,400,000 separate stores and establishments in trade, and each one of these has a stronger voting power than a single member of a union. "Organized labor" is really outvoted by commercial establishments. The practical result is that federal law, so far as it affects combinations of labor or of capital through injunctions or prosecutions, remains unchanged, though alteration was urged together by

pressing and urging the national conviction that there must be no combination, not even of labor or of the farmer, without regulation, prevented all legislation, whether asked by railroad, trust, commercial association, union or grange.

Legislation is, however, inevitable. The choice to-day for combinations is no longer after the past eighteen years, since the Sherman act, between regulation or no regulation, but between regulation by criminal prosecution and regulation by administrative supervision. The first is in full operation. Every decision widens its scope. Every prosecution and conviction advertises and enforces its perils to all combinations. Ten years ago, the great corporations were opposing federal supervision. Twenty years ago, the decision in the Knight Sugar cases seemed likely to render the extension of federal power over manufacturing corporations impracticable and unconstitutional. To-day, many lawyers advising trusts would, I know, be glad if that decision were out of the way and their charge safely at anchor in the haven of federal regulation. As for the counsel of the government, the plea of Mr. Hoyt, Solicitor of the Department of Justice, sufficiently shows the belief of official legal advisers that the Supreme Court, if a path of retreat, not too patent, be opened, will silently withdraw from its position in Knight's case and lay down the wiser doctrine, that where the operations of a corporation require regulation in order efficiently to regulate interstate commerce, it must pass under Federal regulation so far as the efficient discharge of the constitutional power to regulate commerce between the states renders this necessary.

An industrial corporation, using the term in its broadest sense, of companies engaged in production, manufacture, mining or distribution, comes within the purview of federal jurisdiction through its relation to interstate commerce. This relation may arise in two ways, the corporation may be directly engaged in this commerce, or its operation may be on a scale sufficiently large to render the regulation of interstate commerce ineffectual, unless the corporation itself be under supervision. On this latter principle the federal power has already been extended to fields in themselves wholly outside of federal jurisdiction. A navigable river, like the Ohio, bed and stream, is under the sovereignty of the states it divides. or through which it flows. The federal government has no such interest in either as justifies control over them, as the Supreme

Court has just held in the Colorado River case; but the regulation of interstate commerce has extended a plenary federal jurisdiction. over bed and stream, as far as it is necessary to improve the navigation by condemning private property, protecting work from trespass or deciding at what price a private enterprise engaged in improving navigation can part with its title. President Monroe challenged this right in his familiar message, whose chief weight and value to-day is the measure its law and logic offers of the complete reversal by the national courts, legislature and executive of his position. Perpetually one returns at all points to the principle that whatever the federal government needs for the complete exercise of a granted. power, it can take and hold and its courts, in a constantly enlarging jurisdiction, decide the boundaries of this power and the mode under which it arises.

Federal power is clear where an industrial corporation is engaged in interstate commerce; but in the application of this power to a corporation, the issue at once arises as to whether the exercise of jurisdiction is limited to its interstate commerce alone, or can be extended over the operation of the corporation as a whole. If the former cannot be exercised without the latter, the latter will follow. In the measure drawn by the National Civic Federation, it was assumed that federal regulation would extend only to interstate business. Federal law and prosecution have for eighteen years infringed upon or threatened this traffic of industrial corporations through a penal statute, the act of 1890. The principle therefore adopted in the measure proposed was of the nature of an act of provisional indemnity. If these corporations made certain reports and submitted their contracts for approval to the Bureau of Corporations, they were to be free from the operation of the Sherman Anti-Trust Act. If they failed, either in their reports or in securing the approval of this bureau, the provisions of the act revived. While an unusual proceeding in American law, the group of decisions dealing with amnesty at the close of the Civil War leaves no reasonable doubt that a discretion as to the enforcement of a penal statute, even when, as in the case of treason, it applies to a constitutional crime, can be vested by Congress in the executive officer whom it selects by appropriate legislation to exercise this discretion. But while the principle is constitutional, it has not yet commended itself

sion of a criminal statute on certain conditions, however constitutional and however desirable in itself, is not customary.

Three classes of corporations or associations were embraced in this provision for suspending the Sherman Anti-Trust Act, railroads whose contracts were to go for approval to the Interstate Commerce Commission, corporations in trade, industrial or distributive, whose contracts were to be passed upon by the Bureau of Corporations, and labor unions and granger associations combining to maintain prices of farm products, whose contracts were to be submitted to no one. To the reference of railroad contracts to the Interstate Commerce Commission no objection was made in Congress or out, though Western dread of "pooling" has prevented any favorable action. To the approval of contracts by industrial and trading corporations or associations, the wide and general protest was made, already voiced on this platform by Mr. John Sharp Williams. To the freedom from all scrutiny of contracts affecting interstate commerce made by unions, there was an opposition no one anticipated. Instead of aiding the passage of the measure, this provision seriously increased opposition by awakening protests already touched upon.

Strictly legal in character, this framework of regulation, efficient, adequate and constitutional, satisfactory to the interests involved, protecting the public, revised and approved by President Roosevelt and his administration, still had to the journalistic eye the fatal lack that to the average man it seemed a vulgar barter of immunity to combined capital or labor, which combination, but for its provisions, would be open to criminal prosecution. This is an unfair and ignorant view; but it has to be reckoned with. The nulli justitiam vendimus of Magna Charta lies deep in the conscience of the English-speaking folk, and while its common and conscious opinion will accept amnesty for a political crime like. treason, men gag at immunity from a criminal statute, directed against what is universally held by the average American to be morally indefensible and an offense against the higher social order -a combination in restraint of trade. Next winter, this measure comes again before Congress after the clarifying effect of a Presidential canvass. Public opinion will be better known, the insensible education of public men and of newspapers will have progressed another stage and what can and cannot be done have become more

clear.

But whatever be the final outcome of the first measure which has the joint approval of capital, labor and the federal administration ever presented to solve the problem of regulating corporate combinations in capital, in farm production and labor, in and out of interstate commerce, on the borderland between state and federal jurisdiction, the bill presented by the National Civic Federation is the first mediating word on this most difficult crux of our system. It blunts no criminal weapon now possessed by the federal power, it asks of the industrial corporations chartered by states enough supervision and regulation to protect the public, but no more than the corporations are ready to concede, and it raises no dubious. constitutional issue. The sole question and the chief opposition has turned upon the treatment of the labor unions, and this is solely because at one point, to wit, in contracts made by unions, it permits combination without regulation. This, I firmly believe, the American people will as little sanction for labor as for capital.

The measure of the National Civic Federation deals with the regulation of trusts on the side of and through their interstate business. This is the constitutional vinculum by which is joined federal power and the producing or manufacturing corporation, and beyond this the bill does not go. But the real cause and reason why these corporations need federal regulation is not because they are in interstate trade, but because their share in interstate commerce is so large, pervading and perturbing, that federal regulation of commerce between the states is futile and ineffectual unless they are regulated. There are tens of thousands of corporations engaged in commerce between the states which no one proposes to regulate. The measure just analyzed in theory and as a mere matter of billdrawing, would apply to every association or corporation which sends a newspaper or ships a can of milk across a state line. In practice, no one expects that any but the large corporations, with special interests to protect, will avail themselves of its provisions. The obstacle and objection to all general measures bringing under federal regulation all corporations in interstate commerce rests on the grave inconvenience of requiring reports from the great array of small corporations, imposing an intolerable burden both on them and on the federal authority charged with their regulation, when all that is really required by public policy is the regulation of the