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measure of protection from competition which they would otherwise encounter.

In the second place, a far-sighted trade policy must be based on the fundamental idea that in all exchanges there must be reciprocal advantage; and that to fix prices, even where there is an absolute monopoly, at an exorbitant figure, so as to oppress and impoverish the consumer, would be a fatal mistake. The constant tendency is, in spite of all efforts to maintain prices, for new methods and increasing efficiency to decrease the cost of production. Necessarily and inevitably the consumer must share in this advantage. The tendency, too, is in great staple lines to do business on close margins. All this is in obedience to the universal impulse to extend and hold trade. A monopoly can hardly be so buttressed and fortified as to be able to ignore these influences. Whenever it does it will invite dissolution.

Constant effort and struggle seem to be the conditions of success in every department of human activity. Whenever an industry or a trade disregards, in fancied security, this basic elemental fact, it is bound to suffer.

Nations, like individuals, have an organic growth and development, which cannot be ignored by the wise and philosophic legislator. This nation, with inestimable natural advantages, has grown great in material prosperity and resources under the inspiration of liberty. With its wonderful and rapid development there have appeared difficulties and indeed positive evils which seem to call loudly for correction. We live in a utilitarian age which is impatient of abstractions that impede the correction of concrete and conceded wrongs.

The moral sense of the country has been shocked at the outrages committed in great strikes; therefore we take away from those charged with violence in this regard, the right to trial by jury and, by a mere evasion, punish them for contempt of Court.

The press of the country has, by its extravagance and frequent disregard of high moral purpose, in large measure lost popular confidence.

So we tolerate, under the guise of punishing for contempt, when a Court is criticised, flagrant judicial invasion of the inestimable right of free speech and publication; and similar efforts to suppress unpopular oral discussion pass without general reprobation.

The cost of living has advanced, and many so-called trusts have been guilty of gross extortion and of lawless oppression. So we propose to extirpate id omne genus, the whole brood.

Our national faith in the efficacy of legislation is more than religious. Yet it is well to remember that legislation can not accomplish everything. The centralizing tendencies due to modern methods of travel, transportation and communication have, in the life of society, consequences as inevitable as those attending upon the operation of the laws which govern the material universe. Dr. Van Hise, the very able and scholarly president of the great University of Wisconsin, in his recent work upon this subject, has well said: “Concentration and co-operation in industry in order to secure efficiency is a world-wide movement. “The United States cannot resist it. If we isolate ourselves and insist upon the subdivision of industry below the

highest economic efficiency and do not allow co-operation,

we shall be defeated in the world’s markets. We cannot adopt an economic system less efficient than our great competitors, Germany, England, France and Austria. Either we must modify our present obsolete laws regarding concentration and co-operation, so as to conform with the world movement, or else fall behind in the race for the world’s markets. Concentration and co-operation are conditions imperatively essential for industrial advance; but if we allow concentration and co-operation, there must be control in order to protect the people. An adequate control is only

possible through the administrative commission. Hence

concentration, co-operation and control are the key words for a scientific solution of the mighty industrial problem which now confronts this nation.”

It is idle to attempt to resist the inexorable laws of commerce operating in every quarter of the globe, which tend to compel and justify centralization and consolidation as efficient and economically sound. In the nature of things nothing of permanent advantage can be accomplished in a governmental contest against economic law.

The results of efforts at enforcing the Sherman Act have not been impressive. Neither Judges nor jurors are generally disposed to convict persons charged with statutory of. fenses not involving moral turpitude. In the few cases where such convictions have been obtained it will generally be found that there have been accessories in the way of frauds and oppressions practiced by those accused against their competitors, which were not at all within the purview of the act nor indeed necessary to establish its transgression.

These incidents thus wholly collateral have nevertheless furnished the moral basis for a successful accusation of statutory guilt.

Dissolutions of great trusts are decreed, the price of their products is thereupon raised, their securities advance in the markets, and their business continues without serious interference or altered character.

Mr. Lee of the Chicago Bar has well characterized these proceedings. “Like the stuffed club and slap-stick of low comedy, their employment is pleasing to the audience and does not injure the victim.”

It seems to me that this preposterous statute should be promptly repealed. That accomplished, if our tariff fosters combinations by unwarranted protection of their products, such protection should be promptly withdrawn. Whether further legislation is necessary in the way of regulation seems to me matter of debate.

There can be no question that Congress under its power to regulate commerce between the states and with foreign nations, has plenary authority over this subject, extending, I make no doubt, even to the regulation of prices. Such an attempt, however, is so repugnant to our essential individualism, our belief in personal liberty, our inborn appreciation of self dependence and self protection in such matters, and the inherent practical difficulties of such an effort are so colossal that it seems to me a solution well nigh impossible. Perhaps we may come to it; but it savours too much of the blight of socialism, that deadening, withering paralysis already threatening the body politic, to make any appeal to me.

Shall we then let the people suffer and indeed suffer with them from these terrible trusts? Our efforts to abate them have thus far proved quite abortive. Possibly, if our statesmen and legislators should suspend their patriotic activities in this field long enough to study the subject carefully, the popular distress might not in the interval be materially aggravated. I would suggest some mild remedies; a large measure of publicity would certainly be wholesome. Let legislation prescribe this and provide methods for securing it. If this were secured, trade associations and combinations might well be permitted.

Mr. A. J. Eddy of the Chicago Bar in his recent volume, The New Competition, has treated this phase of the question with great clearness and force. Nor has he failed in his chapter on class legislation to point out, with equal clearness, some of the disturbing elements that make legislative treatment of the trust problem so difficult.

But suppose we do not try artifical remedies for a while, but let nature take its course.

For many years the railways of this country were banded together to resist the reduction of rates. They are still; but former methods were different. They had traffic agreements, percentage pools, commissioners, etc., ad libitum. Yet rates for passenger and for freight traffic tended constantly downward. This was due to natural law before which the efforts of banded monopoly were ineffectual. This law operates in every field of human activity; it finds its origin in those evolutionary processes on which the progress of the race depends. Everywhere, in every line of service and of production, the tendency is towards increased efficiency and lowered costs. Inevitably the consumer has shared and must share in these advantages.

The intelligence of our legislators is not sufficient to enable them to effectively displace this principle of human activity. Some temporary advantages may seem to follow such efforts at times; but they are illusory and evanescent. For some years English legislators atempted to exclude cotton, that it might not compete with home grown flax. When it was finally admitted it became one of the greatest sources of profit to the people of that country where it has been manufactured on an enormous scale.

The aggregate intelligence, energy and initiative of individuals engaged in trade and commerce in this enlightened and progressive nation, are far more adequate to dealing with these questions than legislative wisdom; and an enlightened self interest must ultimately recognize that essential community of interest which exists between consumer and producer. Industrial and commercial freedom has made and developed our domestic trade to its present enormous proportions. Should its very greatness and prosperity sug. gest wanton and lawless aggression upon society, these manifestations may be properly repressed and punished; but it ought not to be put in legislative shackles nor compelled to submit to the control of administrative leading strings. For it is true now as always in the language of a great English statesman, Edmund Burke, (like many great Englishmen, an Irishman) that “Liberty, too, must be limited in order to be possessed. The degree of restraint it is impossible in any case to settle precisely. But it ought to be the constant aim of every wise public counsel to find out . . . with how little, not how much, of this restraint the community can subsist; for liberty is a good to be improved, and not an evil to be lessened.” S. S. GREGORY.

Chicago. in Michigan Law Review.

32 Works 229.

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