Respect for law essential to free government. Of the habit of respect for law, more may be said, for here, upon the general principle, all agree. Without this habit government becomes dominion only, authority a weapon, safety impossible, protection unknown. All this, in form, is fully admitted. As a legal creed, none doubt that the Constitution is the supreme law. As a fact, however, popular expression upon particular measures, even the attitude of some inferior courts, appears to indicate an unexpressed conviction that the Constitution, in the changed conditions of commercial life, is no longer a safe guide; that the process of amendment for which it provides is too difficult or too slow, that public interests make it necessary for Congress to grasp and exercise new powers, and for the courts to support these new jurisdictions. As yet these views are not avowed, their only expression being found by inference from the course of government, the attitude of public comment, and from decisions of some subordinate courts.

Much that is sought by these methods should in fact be effected. It is equally true, however, and far more important, that, whatever be the merit of particular measures, nevertheless, no lasting good can come from the adoption of methods which, unless restrained in season, are subversive of all government, which confuse executive, judicial, and administrative functions, and place the property, the liberty, — in the end perhaps the life, - of individuals at the disposition of an authority which acknowledges no final obligation to declared law, and whose judgment of public necessity is contained in the

decree made against the person who in a given case may be selected to illustrate governmental policy. For such government it is not likely that a professed defender could yet be found, and, nevertheless, judgments have been rendered which are possible only where government of this character is possible, as may be seen in cases already mentioned (ante, pp. 198–204) under the Anti-trust Act, whose decision has been controlled by the judicial view that different combinations, to which attention was directed in different cases, possessed an undue share of trade. There is no legal standard of corporate size by which these judgments can be supported, nor do they find precedent in any decision of the Supreme Court. The judges assumed to determine the political policy of States from which they hold no power, they required of defendants obedience to decrees which are law as against them only, and are not the equal law of the land. This is personal government, not the reign of law.

For this the sober consideration of society is not prepared. It is necessary, first of all, that the orderly processes of law — executive and legislative as well as judicial — be resumed; and then, whatever measures are adopted, that they be such as to make real progress toward permanent solution of undoubted evils, not a distraction merely of public attention, to lay foundation for arbitrary power, by gratifications of popular impulse.

For this reason it has been thought desirable to examine constitutional history of the relation of the Federal government to carriers and corporations, and to show as a fact by the practice of State and Federal governments definitely what these powers are and have been.

Constitutional construction by executive order. It is common to say that Congressional power over corporations is amply contained in the authority to regulate commerce with foreign nations, among the several States and with the Indian tribes; to quote Mr. Chief Justice Marshall, that this is a power to regulate commercial intercourse in all its branches, and to add in the language of the Supreme Court, that the power is plenary, that it extends wherever commerce extends, and acknowledges no limitations save those imposed by the Constitution.

Few, if any, doubt the correctness of these statements which have the weight of authority and long acceptance. They fail, however, to answer the question—what, after all, is the nature and extent of this plenary power, and what are the limitations imposed upon it by the Constitution?

A more direct answer is found in the statement given by Senator Knox, when Attorney-General, in his speech at Pittsburg, Oct. 14, 1902. The power, he said, is nothing less than authority to prohibit commerce, or to permit it, on whatever terms Congress may impose. In this suggestion he offered a method to bring all great industries within Federal control. Admitting apparently, as is unavoidable, that the manufacture and production of articles of commerce are within State jurisdiction, as is also the creation of corporations, determination of amount of capital, publicity, etc., Mr. Knox nevertheless urged, that Congress may "deny to a corporation whose life it cannot reach, the privilege of engaging in interstate commerce, except upon such

terms as Congress may prescribe to protect that commerce from restraint." "Such a regulation," he added, "would operate directly upon commerce, and only indirectly upon the instrumentalities and operations of production."

In other words, the position of the Attorney-General was that Congress has uncontrolled power to regulate or to prohibit interstate commerce, and that it may use this power to accomplish results that are wholly beyond its jurisdiction.

This answer, so far as it is an answer at all, depends upon the meaning of the phrase to regulate commerce. As a matter of language the words may be given the meaning thus ascribed to them, but they may also be given other and very different meanings. Which of these many meanings defines the actual grant of power contained in the Constitution?

Speculation upon the correct interpretation of the phrase is out of place. An effort to fasten new meanings upon the Constitution, disregarding history, national experience, and final adjudications of time and authority, is not constitutional construction and speaks only the economic views or the personal desires of an individual. The question of constitutional construction can be answered, as a matter of fact, from the history of the power over commerce, so as to leave no substantial doubt as to the extent of Federal authority.

The right to engage in commerce. It is said that Congress may grant or withhold the right to engage in interstate commerce. From what authority then does the

right of intercourse between persons of the same or different States arise?

Only the pressure of great interests could make the question seem debatable. When the Constitution was formed the doctrine of the inalienable rights of man expressed, both in America and in Europe, popular revolt against personal government, and against the system of restrictions and privileges upon which it was built. "The right to one's self," Thiers said, "to one's own faculties, physical and intellectual, one's own brain, eyes, hands, feet, in a word to his soul and body, is an incontestable right, one of whose enjoyment and exercise by its owner no one can complain and which no one can take away." Under the old régime in Europe, when "the prying eye of the government followed the butcher to the shambles, and the baker to the oven," when the peasant farmer could not "take the produce which he raised to market until he had bought leave to do so; nor consume what remained of his grain till he had sent it to the lord's mill to be ground, nor full his cloths on his own works, nor sharpen his tools at his own grindstone, nor make wine, oil or cider at his own press," industry was indeed a privilege, and the same narrow view of human rights appears in statutes relating to America, as, for example, those which forbade the manufacture of iron, or with some qualifications forbade trade with other countries than England.

All such restrictions of trade and intercourse in this country ended with the outbreak of the Revolution. The right of intercourse between State and State, Mr. Chief Justice Marshall said, was not granted by the