Europe, used as mere beasts of burden, not only about the mines, but also where the pig-iron is carried to the furnace.

In our colonial days our grandmothers walked miles per day in winding a thread about a spindle with which they weaved cloth to clothe their children, while to-day our machines, the product of Yankee inventions, register in a few minutes a thousand miles of our grandmothers' tired walks.

Illustrations could be multiplied by ten thousand times ten thousand. We do not for a waking minute of our lives either dress or eat or work or play without using some product of an American invention.

What, then, has brought these distinctive conditions to pass in our country? The plain answer is this:

The workman in our country, be he the carrier of a hod which does not balance on his shoulder, or a bricklayer whose trowel is not handy, or the steamfitter who in his daily toil recognizes the relation between area and pressure-be he laborer, artisan, mechanic, or engineer, unless he be a recent importation or a natural loafer or one who is under the thumb of some irresponsible walking-delegate, either with or without his dinner pail, goes to his work through an atmosphere which makes him think.

The burden of the thought of the American laborer is as to how, possibly, his tools or his machine may be improved, how manual labor may be lessened, how the cost of production may be cheapened, how the product may be bettered-in short, how the dignity of labor may be increased by the continuous addition of the elements of intelligence, thought, experiment, and improvement, with resulting benefits, first, to himself and to his family, and, secondly, to the now very rapidly increasing, shifting, and uncertain cash capital held by the bankers and by the employers.

That the encouragement of our patent laws and the monopolies thereunder have dignified and enriched daily toil ten thousand fold is way beyond any intelligent or honest disputation.

In conclusion, I ask another question, and cannot forbear to give its necessary answer.

What has brought it to pass that the workman, the artisan, the mechanic, or the engineer in our country begins his daily work with such thoughts and with such ambitions?

The plain answer is, the encouragement and the hope of reward, by way of a monopoly for a limited period or of a full and speedy compensation for parting with the monopoly, in whole or in part, which the patent laws of the United States, in no equivocal terms, promise to its people.

I must add that any material interferences in the carrying out of these promises, whether by Congress, by the courts, or by the communes, will degrade labor, will widen the breach between capital and labor, will tend to destroy our mechanical and industrial supremacy, will tend largely, whatever the conditions of peace or war may be, to reverse the balance of trade between our nation and other nations, and will work havoc in all of our boasted institutions.

G. W. NORTHRUP, JR.

Member Illinois Bar.

G. W. Northrup, speaking on "Practical Remedies for Industrial Trusts," said:

It is well worth considering whether the popular belief in the futility of federal legislation, as applied to industrial trusts, and the declarations to that effect so generally made by prominent men, are well founded. At least it is important to inquire upon what, if anything, in the past history of legislation and judicial decision on this subject, such sweeping opinions are based. It would seem as though such conclusions would not have found general acceptance until repeated efforts had been made by the federal government to legislate on the subject, and until all such legislation had proved ineffective on account of some inherent defect in the powers of Congress. But such is far from being the case.

The so-called Sherman anti-trust act of July 2, 1890, constitutes, practically, the only federal legislation on the subject of trusts, monopolies and combinations in restraint of trade. The act makes illegal and prohibits, under penalty of a fine not exceeding five thousand dollars, or imprisonment not exceeding one year, or both, "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 every attempt "to monopolize any part of the trade or commerce among the several states or with foreign nations." This language is calculated to create the impression, in the mind of a "layman," that every trust, combination and monopoly which, in the course of its business dealings, engages in commerce in more than one state, is within the prohibitions of the act. But further consideration demonstrates clearly that this is not the fact. The phrases "among the several states" and "with foreign nations"

are copied from the commerce clause of the Constitution, which declares "the Congress shall have power to regulate commerce with foreign nations and among the several states." Long before the passage of the Sherman act, long before the modern trust had made its appearance, this commerce clause had been the subject of repeated judicial consideration, and the phrase "commerce among the several states," had become fixed and crystallized as equivalent to "commerce between the several states"-those acts, dealings and transactions directly involved in effectuating the transfer of persons, property or value across one or more state lines; in short, "interstate commerce," as distinguished from "that commerce which is completely internal, which is carried on between man and man in a state or between different parts of the same state."* It is manifest, then, that the only conspiracies or combinations within the purview of the Sherman act, are conspiracies and combinations to restrain or monopolize either interstate commerce per se, and as thus defined, or foreign commerce, or both.

Notwithstanding these obvious considerations, the practical failure of the Sherman act as a repressive measure, has not been generally ascribed to its own inherent limitations. On the contrary, this failure has been charged up with equal vehemence to the indifference or hostility of the executive department on the one hand, and on the other, to adverse "judicial legislation" by the federal courts. If the former charge be well founded, the remedy is obvious. We are satisfied, however, that the judicial decisions which have been rendered involving the scope and application of the Act of 1890, are not justly open to criticism. On the contrary, we assert with confidence, that an examination of these decisions is calculated to inspire a renewed respect for the federal judiciary, and to afford substantial encouragement for the future. It is specially significant that the Supreme Court itself, as late as 1897, denounced in sweeping and emphatic language, the modern trusts, as "combinations of capital, whose purpose in combining is to control the production or manufacture of any particular article in the market, and by such control, dictate the price at which the article shall be sold, the effect being to drive out of business all the small dealers in the commodity and to render the public subject to the decision of the combination as to what price shall be paid for the article." Said the Court: "In this light it is not material that the price of an article may be lowered. It is in the power of the combination to raise it, and the result in any event is unfortunate for the country, by

*Gibbons vs. Ogden, 9 Wheat. (U. S.) 1.

depriving it of the services of a large number of small but independent dealers who were familiar with the business and who had spent their lives in it, and who supported themselves and their families from the small profits realized therein. Whether they be able to find other avenues to earn their livelihood is not so material, because it is not for the real prosperity of any country that such changes should occur which result in transferring an independent business man, the head of his establishment, small though it might be, into a mere servant or agent of a corporation for selling the commodities which he once manufactured or dealt in, having no voice in shaping the business policy of the company and bound to obey orders issued by others. Nor is it for the substantial interests of the country that any one commodity should be within the sole power and subject to the sole will of one powerful combination of capital."*

In the face of these trenchant declarations, the Court can hardly be charged with extreme partiality to trusts. Moreover, whenever a contract or combination, which could be fairly said to lie within the scope of the Sherman act, has come before the Supreme Court, the latter, disregarding the plausible constructions and ingenious objections of eminent counsel, has not hesitated to enforce the provisions of the act in their entirety. In this connection, the Court has declared in forcible terms, the power of Congress to legislate in its own discretion, on the subject of interstate commerce, and the duty of the courts to enforce this legislation, in accordance with the will of the legislative body as expressed in the terms of its enactments.

Most important of all, perhaps, is the express decision in the "Joint Traffic" case, that the Sherman act violates no constitutional guaranties, not even those of the fifth amendment, which declares that no person shall be deprived of life, liberty, or property, without due process of law, and that private property shall not be taken for public use without just compensation. "The latter limitation," said the Court, by Mr. Justice Peckham, "is, we think, plainly irrelevant. The question which arises here is, whether the contract is a proper or lawful one, and we have not advanced a step toward its solution by saying that the citizen is protected by the fifth or any other amendment, in his right to make proper contracts to enable him to carry out his lawful purposes. Notwithstanding the general liberty of contract which is possessed by the citizen under the Constitution, we find that there are many kinds of contracts which, while not in themselves immoral or mala in se, may yet be prohibited by the

*United States vs. Trans-Missouri, etc. Assn., 166 U, S. 290.

legislation of the states, or, in certain cases, by Congress. The question comes back whether the statute under review is a legitimate exercise of the power of Congress over interstate commerce and a valid regulation thereof. The question is for us one of power only, and not of policy. We think the power exists in Congress, and that the statute is therefore valid."*

So far, everything seems most favorable, but the concrete fact remains that the Supreme Court, while steadily refusing to fritter away the statute by forced constructions, has also with equal steadfastness declined to enlarge its prohibitions beyond the plain limitations expressed in the wording of the act itself. The Court has twice decided that associations formed to regulate freight rates for interstate traffic, are clearly within these prohibitions. But it was held in the E. C. Knight Company case† that the Sherman act did not apply to contracts by which the American Sugar Refining Company had secured all the corporate stock of four Pennsylvania sugar refining companies, which, together with the American Company, controlled all the sugar refineries of the United States, except one, and manufactured 98 per cent of the refined sugar produced in the country, although it was charged by the government that by means of these contracts, the defendants had secured a complete monopoly of the manufacture and sale of refined sugar throughout the United States, and that in so doing they had combined and conspired to restrain trade and commerce in refined sugar among the several states and with foreign nations. The essential point decided in the case was, that the particular contracts under examination did not constitute a direct restraint or monopoly of interstate commerce, but merely contracts by which the defendants aimed to secure a monopoly of the manufacture of refined sugar in Pennsylvania, and that the effect of this monopoly in manufacture on interstate commerce was indirect and incidental, and therefore not within the purview of the Sherman act.

This decision, and others which have followed it, are practically the sole authorities relied upon in support of the proposition that the federal government has no power or authority to restrain or suppress industrial trusts. It is, however, perfectly clear from the case as a whole, that the Supreme Court did not say anything to that effect, but on the contrary, carefully confined itself to the particular question presented, which was limited and defined at the outset of the opinion, as follows:

"The fundamental question is, whether, conceding that the

*United States vs. Joint Traffic Assn., 171 U. S. 571. +United States vs. E. C. Knight & Co., 156 U. S. 1.