that restraint of trade in a State is not illegal. By simple ownership the necessity of interstate shipments is avoided, and what is effectively a wide restraint of national commerce gains immunity under the guise of State trade or manufactures. "Such a combination is more than a contract, it is an offence. Men can often do by the combination of many what severally no one could accomplish, and even what when done by one would be innocent. There is a potency in numbers when combined, which the law cannot overlook, where injury is the consequence." A remedy might exist in every one of forty-five States against a consolidated corporation, and all the actions might be brought upon appeal to the United States Supreme Court or to the Circuit Court of the United States by removal, yet there would be lacking the remedy for the real offense, the restraint of trade throughout the nation by separate action in all the States. In Swift & Co. v. United States, the Supreme Court held that it did not matter that a combination to control the sale of beef embraced restraint and monopoly of trade within a single State if it also embraced and was directed against commerce among the States, the effect of the combination upon interstate commerce being direct and not accidental as in United States v. E. C. Knight Co. But the effect of State incorporation has not been seen in its true light Western Union Tel. Co. v. Call Pub. Co., 181 U. S. 92, where the Telegraph Co. defied punishment for discrimination, claiming, (1) the State court is without jurisdiction, the business being interstate; (2) there is no federal statute law; (3) there is no controlling law. The court replied that such a claim was startling, and asserted that there is federal common law.

1 Harlan, J., in Northern Securities Case, 193 U. S. 197, 339. 2196 U. S. 375. 3 156 U. S. 1.

of a device for national restraint of commerce even unchallenged by the Swift decision. It ought not to require proof that in such cases the national courts have jurisdiction of the entire matter if properly brought before them.

III. CONGRESS AND THE REGULATION OF IMPLEMENTS OF COMMERCE. What the courts may do under the common law of their existence, Congress may do; that is the exact measure of the power of Congress over commerce, for not only may Congress declare what is the American common law of commerce, but this declaration, being subject to the test of the courts, is brought in every particular thereby into conformity with the fundamental principles expressed in and underlying the Constitution. Congress has established the common law as the rule of decision of the courts where that law was not already expressed in statutory form. The Circuit Courts of the United States have jurisdiction of all suits at common law when the United States, or any officer thereof serving under the authority of any act of Congress, are plaintiffs.1 And the right of a

common law remedy, where the common law is competent to give it, is reserved in admiralty. The recent decisions sweeping away the technical objections to direct control of commerce by the national government are but a return to fundamental principles laid down in the beginning and now applied to new conditions. Congress was granted power "to regulate commerce with foreign nations, and among the several

1 Act of Sept. 24, 1789, ch. 20, 1 Stat. L. 76, 78; Act of March 3, 1815, ch. 101, 3 St. L. 245.

2 Act of March 3, 1865, ch. 78, 13 Stat. L. 483; The Moses Taylor, 4 Wall. 431, Federal Statutes annotated, Vol. IV, 222.

States, and with the Indian tribes."1 The general construction given to this clause previous to 1887 was in definition of the power of the States to regulate com

merce.

In 1887 the Interstate Commerce Act was passed in response to a cry for regulation of the railroad traffic which, owing to the nature of the greater part of the traffic, could not either legally or effectively be controlled by the States.

While it was recognized that the principal cause of interstate commerce was the development of railroads, yet the Interstate Commerce Act dealt only with interstate carriers and not with the general subject of interstate commerce. What the railroads and the people developed was not merely an interstate commerce but a national commerce. To cover this larger subject the national government did not face the problem and try to regulate national commerce for all the people, but simply passed a criminal statute, the Anti-Trust Act.2 The Northern Securities case was decided not upon the narrow statute but upon the broad implications therefrom of the common law.

"Definitions as to what constitutes interstate commerce are not easily given so that they shall clearly define the full meaning of the term. We know from the cases decided in this court that it is a term of very large significance. It comprehends, as it is said, intercourse for the purposes of trade in any and all its forms, including transportation, purchase, sale, and exchange of commodities, between the citizens of different States, and the power to regulate it embraces all 1 Constitution, Art. I, sec. 8, cl. 3. 2 July 2, 1890, chap. 647.

the instruments by which such commerce may be conducted."

"1

The narrow act under so wide a power was entitled broadly enough, "An Act to Protect Trade and Commerce against Unlawful Restraints and Monopolies.' Under a very reasonable construction of the national powers, the national courts can restrain unlawful restraints and monopolies without legislation by Congress under the common law of the land. The positive statute was very poorly adapted to this simple task. It is well known that the Supreme Court will administer the law of a State and even supplement it out of the court's own head by applying the general rules of jurisprudence. But the statute, open to the attacks to which all positive enactments are subjected by lawyers, seemed to narrow the power of the Supreme Court.

"This act has reference only to that trade or commerce which exists or may exist among the several

1 Welton v. Mo., 91 U. S. 275; Mobile County v. Kimball, 102 U. S. 691; Gloucester Ferry Co. v. Pa., 114 U. S. 196; Hooper v. California, 155 U. S. 648, 653; U. S. v. E. C. Knight Co., 156 U. S. 1.

In rejecting the contention of the railroads that a local rate outside the State prevented the transportation from a point outside the State from being "under a common control, management, or arrangement for a continuous carriage or shipment," the Supreme Court went far toward blanket control under the national statute of all transportation. See Cincinnati, N. O. & T. P. R. v. Interstate Commerce Commission, 162 U. S. 184.

"The Act of 1887 left the carriers to make such as they could have made at common law." Since 1887, the commission has rendered 297 formal decisions. In 194 cases, action was favorable to the complainants. Since 1887 in only 43 cases have proceedings been instituted to enforce orders of the commission, and of these 32 have been brought to a final hearing. In 30 of the 32 cases the order of the commission was nullified. Would a rate fixed by this commission be prima facie reasonable?

2 Gelpcke v. Dubuque, 1 Wall. 20.

States or with foreign nations, and has no application whatever to any other trade or commerce.'

The only way to regulate commerce in behalf of the people is by the control of corporations under the national sovereignty and by the common law of that sovereignty administered by the courts. The centralization is not one of arbitrary power but of justice, and in the elements which determine, namely the trial of facts, the most complete decentralization obtains.

"The adoption of the Constitution of the United States and the consequent creation of the national government did not abrogate the common law previously existing; nor did the division provided for by the Constitution, of governmental powers and duties between the national and State governments, deprive the people of the benefits of the common law; as to such matters as were thereby committed

3

1 Hopkins v. U. S., 171 U. S. 578.

Murray v. Chicago and Northwestern Railway Co., 62 Fed. 24; Circuit Court, Iowa, Shiras, J.

Chief Justice Shaw said in Commonwealth v. Chapman, 13 Met. 68: "We do not accede to the proposition, that the present existence and effect of the whole body of law, which existed before the Constitution, depends solely upon this principle of it [the adoption of the common law]. We take it to be a well-settled principle, acknowledged by all civilized States governed by law, that by means of a political revolution, by which the political organization is changed, the municipal laws, regulating their social relations, duties, and rights, are not necessarily abrogated. They remain in force, except so far as they are repealed or modified by the new sovereign authority. Indeed, the existence of this body of laws, and the social and personal rights dependent upon them, from 1776, when the Declaration of Independence was made, and our political revolution took place, to 1780, when this Constitution was adopted, depend on this principle. The clause in the Constitution, therefore, though highly proper and expedient to remove doubts, and give greater assurance to the cautious and timid, was not necessary to preserve all prior laws in force, and was rather declaratory of an existing rule, than the enactment of a