electorate as the legislatures of the States and was given powers for its own exclusive exercise, anything in the Constitution and laws of any of the States to the contrary notwithstanding. It may be said that the Supreme Court of the United States could declare the law unconstitutional. This concedes the very question. The Supreme Court of the United States, more powerful than the legislatures of all the States acting in accord, acts under the common law of the United States, and is the court of final appeal upon the very implications of that law which underlie the existence and powers of the nation. And the Supreme Court of the United States depends for its power to declare a statute unconstitutional, not upon expressed grant of power, but upon the implications of the common law of the United States. This very implication binds the Supreme Court of the United States to admit the existence of the common law of the United States.

It may be said that the limitations in the Constitution would amount to a denial of the existence of the common law. Nothing could deny the common law of the United States that did not deny the nation itself. The limitations are the common law or a part thereof, and that part is subject to implication from the rest. An example of the self-asserting force of the common law was seen in the decision of the Northern Securities Case.1

In the opinion of the court in this case, Mr. Justice Harlan rests the decision upon the national sovereignty and the common law. See also the dissenting opinion of Mr. Justice Brewer. In presenting the Interstate Commerce Act, Senator Edmunds said: "We are enacting the common law." See W. F. Dana, Monopoly under the National Anti-Trust Act, Harvard Law Review, Vol. VII, 339, and Federal Restraints upon State Regulation of Railroad Rates of Fare and Freight, Harvard Law Review, Vol. IX, 324.

§ 183. EXCLUSION OF NATIONAL LAW BY STATE STATUTES. During the argument of this case before the Supreme Court of the United States, Mr. Justice White asked the Attorney-General whether the Government claimed that, even if a consolidation of two parallel roads was expressly authorized by the laws of the States under which they were incorporated, such a consolidation nevertheless would be unlawful under the Sherman Act. The Attorney-General admitted that such was the Government's claim, if the consolidation might affect interstate commerce. The real extent of this contention was readily seen and commented upon. Mr. Johnson, for the Securities Company, asserted that the owner of the property could not be compelled to compete, and that if one person instead of a company had acquired a majority of the stock of the two roads, there could be no conspiracy. One person could not conspire. And Mr. Bunn asserted that Marshall had said that the powers of Congress were limited to the right to make regulations for interstate or foreign commerce. Mr. Bunn also asserted that the Trust law had nothing to do with the consolidation of railroads, and (in response to a question from Mr. Justice White) that the consolidation not being prohibited by the States, the acquisition of ownership cannot be made a crime. In one of the briefs (that for J. Pierpont Morgan, and others) the case of Pearsall1 is recalled, in which the opinion recognizes that a natural person is entirely at liberty to buy all the shares of any corporation which his means permit. Two such persons might own all the

1 Pearsall v. The Great Northern Railway Company, 161 U. S.

stock in two competing roads; their children might intermarry, and the two original owners having died, the two competing corporations would be owned by one family.' Would not that family have the right to form a corporation, and would that corporation, controlling two competing lines, be in restraint of trade under the Anti-Trust Act?2

The arguments against the power of the nation. show too much. They show that without the exercise of power to control commerce by whatever means, the acts of the State may determine the form which commerce is to take, and this finally and without correction by the national authority. There is a power somewhere to control commerce and industry through control of the persons engaged in the acts. That is the condition imposed by the common law on the exercise of a public calling. Acts and property

This is the germ of President Roosevelt's suggestion of limiting the amount of property that can be inherited by one person so as to prevent "the inheritance or transmission in their entirety of those fortunes swollen beyond all healthful limits."

The fallacy here is luminous. So long as the corporations exist, the individual owner must act through the corporations, and the two corporations acting in obedience to one mind would ipso facto violate the statute. This reasoning is amply covered by the cases. By the general corporation laws a one-man corporation is impossible. A railroad could not be conducted otherwise than by a corporation or "body politic" exercising powers delegated by the government. And the courts will not recognize as lawful the real power of one person in the control of a corporation. Broderip v. Salomon, 1895, L. R. 2 Chancery, 323; Salomon v. Salomon & Co. Ltd., 1896 A. C. 22; Parker v. Bethel Hotel Co., 96 Tennessee, 252; 5 Thompson Corporations, sec. 6653; 2 Morawetz, sec. 1009; Russell v. McLellan, 14 Pick. 69, 70; Newton Mfg. Co. v. White, 42 Ga. 148; Baldwin v. Canfield, 26 Minn. 43. The reasoning against a corporation sole composed of two corporations really owned by one man is all the stronger.

must be controlled through the owner of the property and the doer of the acts. Driven by the inexorable force of the logic of fact, the advocates of the merger placed the power shown to be necessary in the hands of the States and denied it to the nation. This is a reversal of the theory of government and makes fortyfive States paramount to one sovereign. And for what purpose? In order to place the only power that can regulate commerce in the interest of public policy in the hands of the only agency that cannot exercise it, and to take this power out of the only agent that can exercise it in behalf of the public. The only way to prevent industry and commerce, distinguished artificially but never separated, from becoming greater than the nation, is to make the government of the nation greater than they.

"The United States have now forty-nine legislatures at work. They have turned out an immense mass of law since their separation from England.1 But immense as it is, the law of the United States remains substantially English law. An English barrister would find himself quite at home in any Federal or State court, and would have nothing new to master except a few technicalities of procedure and the provisions of any statute which might affect the point he had to argue; and the patriarch of

1 The fundamental law of every State is practically identical with that of every other and with that of the United States. A classification of inalienable rights in all American Constitutions shows that variety of statute and the construction thereof by the courts is merely an inconvenience and not a conflict of principle. What is needed is not change of law by a reform of the national judicial household. See Annotated Constitution of State of New York, published for the Constitutional Convention of 1894 for a complete comparison of American Constitutions. See also Bryce, American Commonwealth, Vol. I, p. 439.

American teachers of law (Professor Langdell of the Law School of Harvard University), consistently declining to encumber his expositions with reference to federal or State statutes, continues to discourse on the Common Law of America, which differs little from the Common Law of England." 1

184. UNIFORMITY OF NATIONAL LAW. CONSTITUTIONAL RECOGNITION OF COMMON LAW. The law which is practically identical for two nations must be identical for all the States of one nation.

It would never be denied that the Constitution is common law for all the people.

"This Constitution and the Laws of the United States which shall be made in pursuance thereof and all Treaties made or which shall be made, under the authority of the United States, shall be the Supreme Law of the Land and the Judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."

12

"The Senators and Representatives before mentioned. and the members of the several State Legislatures and all executive and judicial officers both of the United States and of the several States shall be bound by oath or affirmation to support this Constitution." 3

The first ten amendments cannot be read without the conviction that it was supposed that the United States would administer the common law and that the law administered by the courts of common law would be that of the United States. For this we have

1 Bryce, Studies in Jurisprudence, 96; see also Chas. H. Hartshorne, Courts and Procedure in England and in New Jersey. • Constitution of U. S. Art. I, sec. 2.

Ibid., Art. I, sec. 3.