It is a vitally necessary thing to have the persons in control of big trusts of the character of the Standard Oil Trust and Tobacco Trust taught that they are under the law, just as it was a necessary thing to have the Sugar Trust taught the same lesson in drastic fashion by Mr. Henry L. Stimson when he was United States District Attorney in the city of New York. But to attempt to meet the whole problem not by administrative governmental action but by a succession of lawsuits is hopeless from the standpoint of working out a permanently satisfactory solution. Moreover, the results sought to be achieved are achieved only in extremely insufficient and fragmentary measure by breaking up all big corporations, whether they have behaved well or ill, into a number of little corporations which it is perfectly certain will be largely, and perhaps altogether, under the same control. Such action is harsh and mischievous if the corporation is guilty of nothing except its size; and where, as in the case of the Standard Oil, and especially the Tobacco, trusts, the corporation has been guilty of immoral and anti-social practices, there is need for far more drastic and thoroughgoing action than any that has been taken, under the recent decree of the Supreme Court. In the case of the Tobacco Trust, for instance, the settlement in the Circuit Court, in which the representatives of the Government seem inclined to concur, practically leaves all of the companies still substantially under the control of the twenty-nine original defendants. Such a result is lamentable from the standpoint of justice. The decision of the Circuit Court, if allowed to stand, means that the Tobacco Trust has merely been obliged to change its clothes, that none of the real offenders have received any real punishment, while, as the New York Times, a pro-trust paper, says, the tobacco concerns, in their new clothes, are in positions of "ease and luxury," and "immune from prosecution under the law."
Surely, miscarriage of justice is not too strong a term to apply to such a result when considered in connection with what the Supreme Court said of this Trust. That great Court in its decision used language which, in spite of its habitual and severe self-restraint in stigmatizing wrong-doing, yet unhesitatingly condemns the Tobacco Trust for moral turpitude, saying that the case shows an "ever present manifestation . . . of conscious wrong-doing" by the Trust, whose history is "replete with the doing of acts which it was the obvious purpose of the statute to forbid, . . . demonstrative of the existence from the beginning of a purpose to acquire dominion and control of the tobacco trade, not by the mere exertion of the ordinary right to contract and to trade, but by methods devised in order to monopolize the trade by driving competitors out of business, which were ruthlessly carried out upon the assumption that to work upon the fears or play upon the cupidity of competitors would make success possible." The letters from and to various officials of the Trust, which were put in evidence, show a literally astounding and horrifying indulgence by the Trust in wicked and depraved business methods—such as the "endeavor to cause a strike in their [a rival business firm's] factory," or the "shutting off the market" of an independent tobacco firm by "taking the necessary steps to give them a warm reception," or forcing importers into a price agreement by causing and continuing "a demoralization of the business for such length of time as may be deemed desirable" (I quote from the letters). A Trust guilty of such conduct should be absolutely disbanded, and the only way to prevent the repetition of such conduct is by strict Government supervision, and not merely by lawsuits.
The Anti-Trust Law cannot meet the whole situation, nor can any modification of the principle of the Anti-Trust Law avail to meet the whole situation. The fact is that many of the men who have called themselves Progressives, and who certainly believe that they are Progressives, represent in reality in this matter not progress at all but a kind of sincere rural toryism. These men believe that it is possible by strengthening the Anti-Trust Law to restore business to the competitive conditions of the middle of the last century. Any such effort is foredoomed to end in failure, and, if successful, would be mischievous to the last degree. Business cannot be successfully conducted in accordance with the practices and theories of sixty years ago unless we abolish steam, electricity, big cities, and, in short, not only all modern business and modern industrial conditions, but all the modern conditions of our civilization. The effort to restore competition as it was sixty years ago, and to trust for justice solely to this proposed restoration of competition, is just as foolish as if we should go back to the flintlocks of Washington's Continentals as a substitute for modern weapons of precision. The effort to prohibit all combinations, good or bad, is bound to fail, and ought to fail; when made, it merely means that some of the worst combinations are not checked and that honest business is checked. Our purpose should be, not to strangle business as an incident of strangling combinations, but to regulate big corporations in thoroughgoing and effective fashion, so as to help legitimate business as an incident to thoroughly and completely safeguarding the interests of the people as a whole. Against all such increase of Government regulation the argument is raised that it would amount to a form of Socialism. This argument is familiar; it is precisely the same as that which was raised against the creation of the Inter-State Commerce Commission, and of all the different utilities commissions in the different States, as I myself saw, thirty years ago, when I was a legislator at Albany, and these questions came up in connection with our State Government. Nor can action be effectively taken by any one State. Congress alone has power under the Constitution effectively and thoroughly and at all points to deal with inter-State commerce, and where Congress, as it should do, provides laws that will give the Nation full jurisdiction over the whole field, then that jurisdiction becomes, of necessity, exclusive—although until Congress does act affirmatively and thoroughly it is idle to expect that the States will or ought to rest content with non-action on the part of both Federal and State authorities. This statement, by the way, applies also to the question of "usurpation" by any one branch of our Government of the rights of another branch. It is contended that in these recent decisions the Supreme Court legislated; so it did; and it had to; because Congress had signally failed to do its duty by legislating. For the Supreme Court to nullify an act of the Legislature as unconstitutional except on the clearest grounds is usurpation; to interpret such an act in an obviously wrong sense is usurpation; but where the legislative body persistently leaves open a field which it is absolutely imperative, from the public standpoint, to fill, then no possible blame attaches to the official or officials who step in because they have to, and who then do the needed work in the interest of the people. The blame in such cases lies with the body which has been derelict, and not with the body which reluctantly makes good the dereliction.
A quarter of a century ago, Senator Cushman K. Davis, a statesman who amply deserved the title of statesman, a man of the highest courage, of the sternest adherence to the principles laid down by an exacting sense of duty, an unflinching believer in democracy, who was as little to be cowed by a mob as by a plutocrat, and moreover a man who possessed the priceless gift of imagination, a gift as important to a statesman as to a historian, in an address delivered at the annual commencement of the University of Michigan on July 1, 1886, spoke as follows of corporations:
"Feudalism, with its domains, its untaxed lords, their retainers, its exemptions and privileges, made war upon the aspiring spirit of humanity, and fell with all its grandeurs. Its spirit walks the earth and haunts the institutions of to-day, in the great corporations, with the control of the National highways, their occupation of great domains, their power to tax, their cynical contempt for the law, their sorcery to debase most gifted men to the capacity of splendid slaves, their pollution of the ermine of the judge and the robe of the Senator, their aggregation in one man of wealth so enormous as to make Croesus seem a pauper, their picked, paid, and skilled retainers who are summoned by the message of electricity and appear upon the wings of steam. If we look into the origin of feudalism and of the modern corporations—those Dromios of history—we find that the former originated in a strict paternalism, which is scouted by modern economists, and that the latter has grown from an unrestrained freedom of action, aggression, and development, which they commend as the very ideal of political wisdom. Laissez-faire, says the professor, when it often means bind and gag that the strongest may work his will. It is a plea for the survival of the fittest—for the strongest male to take possession of the herd by a process of extermination.