may be met. Attention directed to a protective tariff (so far as it creates domestic business but not domestic restraint of trade), to the corporation per se, to the mere extent of a business, or to a monopoly apart from its special character, is not well directed. The evils are in preventing others, by unlawful acts, from engaging in business, and in making use of a monopoly, natural or artificial, whether in a public or private calling, to keep the public from its share, not only in the reduction of the cost resulting from the combination or the natural monopoly, but also in the advantages of the progress of social economy. And to these evils attention must be directed with a national view. As to commerce the nation is one.' And commerce is non-political. So is justice, in questions arising out of commerce, or out of corporate activity, or out of any other circumstance (whether arising and adjudicated in a city or a State, or arising in interstate commerce and adjudicated in Federal courts) non-political and of no less than national basis. The final determination of rights arising from contract, the right to contract, and the use or possession of property, must come from the Supreme Court of the United States controlled only by the Constitution of the United States and the common law of the United States. Legislative control of private property devoted to public use, or of public property, tangible or otherwise, is the object of that regulation which is divisible between City, State, and Nation. Not only as to disputes arising in the broad domain of interstate commerce, but as to those arising under the conditions created by the growth of combinations, corporations, monopolies, the expansion of domestic trade, 1 U. S. v. Moore, 93 U. S. 270.
and the extension of the scope and use of public callings, the nation is and should be really one in the treatment of a question which was not only, in its original form, itself the cause and the occasion of the existence of the United States of America, but has given in its not altogether regrettable development, a new and broader meaning to the common law, as the common law of the United States.
safeguards, 434
Administrative (see Executive)
Admiralty, jurisdiction of fed-
eral courts, 406-408
Agents, partners as, 290; com-
mon agents, when illegal, 293
Anti-trust Act and common
law, 430. (See Northern Se-
curities Case in Table of
Cases)
Aliens, rights under treaties,
51-54; right to trial in United
States Courts; protected in
States by nation, 233; as in-
corporators, 470
Appeal (see Jurisdiction) from
commission a misnomer, 379-
383; of colonies to king, 436
Article Four, section 2, on citi-
zenship, 57, 58, 59n; section 1,
"full faith and credit," 59n.
Article One, section 8, clause 18,
and the power to create cor-
porations, 65; section 2, clause
3, and income taxes, 100; sec-
tion 8, clause 1, and taxation,
343
Article Three, and United States
![[blocks in formation]](https://books.google.lv/books/content?id=LHo9AAAAIAAJ&hl=lv&output=html_text&pg=PA505&img=1&zoom=3&q=editions:STANFORD36105060681140&cds=1&sig=ACfU3U3z7r-cQha617az-Ze53TsvDQN3Dw&edge=0&edge=stretch&ci=138,1017,355,329)
grant of powers to the nation,
165
Banks, taxation of, by State and
nation, 99-107; incidental
powers of, 106; incorporation
of national, 266; as de facto
corporations, 270
Bankruptcy, a commercial reg-
ulation, 238-241; in the Con-
vention, 242
Bateman, on common law of the
United States, 437-441
Blackstone, influence in the Col-
onies, 434-441
Blaine, on sovereignty, 210
Boni homines, as witnesses, 4
Borough (see Towns)
Brewer, on franchise of inter-
state commerce, IIon
Bryce, on uniformity of Ameri-
can life, 43
Burgess (see Towns)
Burh, thirty-three witnesses to
a, 4. (See Towns)
Burke, on legalism in the Colo-
nies, 215, 436
Business, of foreign corpora-
tion, taxation of, 86-97; of
individual as property, 279
Calhoun, Webster's reply to,
68; on treaty-making power,
54; on sovereignty, 208
Callings (see Private and Public
Callings)
Carlisle, on arbitrary power, 84n
Cars, situs of, for taxation, 88-
93
Carter, James C., on the un-
written law, 46n
Centralization (see National) pre-
vented by local self-govern-
ment, 45; and self-govern-
ment defined, 44; supposed,
in United States, 419; of
justice, 498
Certificate of incorporation (see
Charter), fee for filing, 92
Charles River Bridge Case (see
Table of Cases)
Charter, reserved right to amend,
70-79; acting upon, 282
Church Courts, jurisdiction of,
Cicero, on uniformity of law,
445
Circuit Courts, jurisdiction, 56,
235, 244, 249, 369; powers of,
389, 462; of Appeals and
Evarts Act, 464
Citè, as the Roman nation, 2
Citizens, corporations as, 57,
58; classes of, 80-81; alle-
giance of, 209-213; rights of,
under national protection,
231-237; foreign, protected
in States by the nation, 233;
corporations as, 245, 465-
475; as a basis of uniformity,
465
Ciudadano, hombre bueno, 4
Coke, on the creation of muni-
cipal corporations, 171
Colonies, common law in, 434-
441; appeals to king, 436
Combination (see Monopoly);
protected by State control,
Coercion, is actionable, 275
Comitatus, as the nation, 2; not
the origin of feudalism, 3; sur-
vivals of, in Europe and in
England, 5-9; judicial power
of, 3
Comites, their duties, 3-4
Comity and the treaty-making
power, 52-59 (see Conflict
of Laws); between States a
fiction, 53-56 of nations se-
cures reciprocal rights, 233-
237; "full faith and credit
clause," 241; "full faith and
credit clause" did away with
comity, 333; impossible un-
der national regulation of in-
terstate commerce, 332; does
not exist between the States,
489-496
Commerce, exclusive national
regulation of, 49-51; regula-
tion made impossible by State
incorporation, 107-121; prin-
cipal purpose of adoption of
national government, 238-
241; bankruptcy a commer-
cial regulation, 238-241; na-
tional regulation of, 238-271;
and manufactures know no
State lines, 241-245; State
control of, 241-253; outline
statement of common law
of, 271-319; power of Con-
gress to regulate rates of,
320; Federal Courts and, 369-
Commission, delegation of power
to, 321, 327, 337; subject to
three limitations, 334-368;
attitude toward rate-making,
338-341; administrative, 341;
as court, 361-369; as legisla-
ture, 356, 363-369.
Common Law, the English, as
the law of the local commun-
ity, 5-9; first English statutes
provided procedure for, 9-11;
nationalization of, 9-11; jury
the basis of the English, II;
courts of, supplemented by
Chancery, 29; co-operation
of Towns and King to make
national, 36-39; the law of
freedom, 39; national, in the
United States, 52; power of
corporation to hold land at,
56; municipalities under pro-
tection of, 185; uniform, and
municipalities, 192; of forty-
five jurisdictions, 193; guaran-
ties of, in every State, 227-231;
and national corporations,
247; declaration of, by Con-
gress, 253; of the United
States, existence of, 256-259;
Shaw on declaration of, 257n;
of corporations and commerce,
outline statement of, 271-
319; and relations of stock-
holders, 285; courts of, give
ample remedy against restraint
of trade, 307; standard of
reasonableness, 308; in courts
of equity, 308; discrimination
at, 317; jurisdiction of Federal
courts, 408-416; basis of the
Constitution, 426; national
recognition of, 426-432; and
Anti-Trust Act, 430; in first
ten Amendments, 433; and
administration,
434; as a
birthright, 434; in the Colo-
nies, 434-441; implied power
of nation to assert, 445; of
sovereignty, Grosscup on, 449;
of the United States, judicial
opinion, 454-464; Res Adjudi-
cata and Stare Decisis, 473-
489
Community of interest, combi-
nation by, 294
Competition, must be free and
fair, 272-273; unfair, 274-275
Compurgator, a witness, 4
Confederacy, had no Supreme
Court, 445
Confiscation, taxation is not,
342
Confiscatory, rate defined, 348-
354
Conflict of laws (see Comity);
and State regulation, 251;
produces injustice, 486-489
Congress (see National)
Conqueror, William the, ac-
quainted with the jury on
the Continent, 4; use of, in
England, 2, 5-7; preserved
Anglo-Saxon institutions, 6
Constitution of the United
States (see — Amendment);
result of struggle for Anglo-
Saxon liberties, 2; the charters
of liberties and the, 31-32;
a growth, 46-51; conservatism
of, 49; expansion by con-
struction, 49-51; enforces
what is called comity,
54-
56; protects national citi-
zenship, 59-61; implications
of power in, 65-68; an exe-
cuted contract, 68; limits
State taxation and police
power, 64-65 (see Preamble
Articles, First, Fifth Amend-
ment, Sixth Amendment,
Seventh Amendment, Eighth
Amendment, Ninth Amend-
ment, Tenth Amendment,
Eleventh Amendment, Four-
teenth Amendment); and im-
pairment of contract by State
incorporation, 153-160;
served powers and cities, 176;
Tiedeman on the unwritten,
183; Marshall on adoption of,
205; as sovereign, 210 ;uniform
construction of, 217-218; "full
faith and credit clause," 241;
and comity, 333n; limita-
tions on delegation of rate-
making, 334-368; controlled
by common law, 426; com-
mon law in first ten amend-
ments, 433
Constitution, the unwritten, 1–
51; based on the charters, 45;
merits compared with written,
45-51; Cooley on, 45-51;
Dicey on, 45; and cities,
176-193; and Northwest Or-
dinance, 443
Contract, United States Con-
stitution an executed, 68;
corporation a, 69-70; State
cannot impair, 70-79; right
to impair cannot exist, 128,
154; impairment of, under the
reserved right to amend, 153–
160; impairment of, by repeal
of municipal charter, 186-
188; corporation, State con-
trol of, 245-253; corporation
is a, 247n, and conflict of
laws, 251; in restraint of
trade (see Monopoly); right
of association, 280; ultra vires,
288
Conveyance, as means of com-
bination, 296
Cooley, on the unwritten con-
stitution, 45-51; on local
self-government, 178, 191; on
the jury of the vicinage, 179;
on sovereignty, 210
Copyright, not a basis for com-
bination, 273
Corporate excess, situs of, for
taxation, 91
Corporations, municipal (see
Towns); political, the powers
|