class of this remarkable school has preserved the selection and election of Mr. McCall as its individuality as a class by meeting each justice of the Supreme Court.

and, boarding the train, to depart upon their journeys. It would not do to charge them with notice of the rules and regulations of the company simply because a copy of such rules or regulations was posted at the ticket office. Notice of the rule or regulation must be in some way brought home to a passenger before he can be charged with it. The court was, therefore, right in rejecting this evidence."

The Supreme Court of Georgia, in the case of Hopsin v. State, distinctly affirmed the right of an accused to be present at all stages of his trial. It appeared that some time after the jury had retired to deliberate upon their verdict, they were recalled and given a second charge in the absence of the accused and his counsel. It also appeared that this charge

was the same in substance as that which had been delivered in the first instance, but this

fact would not excuse the omission to have the defendant present in court. After condemning the practice and carefuly reviewing the case, the court said:

operate as a revocation it must have either been attested in the same manner and with the same formality as is required for the execution of a will, or the entry must have been written upon the will in such a manner as to obliterate or cancel some material portion. The facts of the present case, said the court, are almost identical, the only difference being that one word of the entry in the present case was written across one word in the last line of the will. This word was in a sentence which

stated merely that a word in the will had been changed before signing. It thus appears that no material portion of the will was obliterated, even if the mere writing across a word in a will, leaving the same perfectly legible, could be said to be an obliteration or cancellation, within the meaning of the statute, which provides that a will may be revoked by canceling some material portion thereof. The case is upon its facts absolutely controlled by the decision in Howard v. Hunter (115 Ga., 357).

CONTROL OF THE TRUSTS.

REFLECTIONS ON THE EXISTING POWER OF CONGRESS
TO FORM AND REGULATE CORPORATIONS AFFECTED
BY INTERSTATE COMMERCE RELATIONS.

"The great point is that the accused and his counsel have the right to be present at every stage of the proceedings, and personally see and know what is being done in the case. To say that no injury results when it appears that what occurred in (By JOSEPH CULBERTSON CLAYTON, of the New York

their absence was regular and legal would, in effect, practically do away with this great and important right, one element of which is to see to it that what

Bar.)

Allow me opportunity to present these reflections

does take place is in accord with good law and good upon some of the questions now before the public practice."

A very interesting adjudication with reference to the revocation of a will, was given by the Supreme Court of Georgia in the case of Oetjen v. Oetjen. It appeared that in the lefthand corner of the last sheet upon which the will had been written appeared this entry:

in regard to "Trusts" and the power of congress in relation thereto, under the existing Constitution;

and as to the needlessness of an amendment to confer additional power upon congress in respect to the

regulation of commerce. I shall use the word "Trust" as meaning a great corporation carrying on business among two or more States, or internationally, as distinguished from the small corporations whose operations are (almost) wholly within one State. One hour of John Marshall would give such construction of the present commercial clause:

"The congress shall have power to regulate com

merce with foreign nations, and among the several

States, and with the Indian tribes," as would amply meet the changed conditions of the present time. Judges, great, in the lines in which he was great, rather than any amendment, are the crying need; this with a better public opinion.

"This, my last will and testament, is of no avail, and null and void." The entry was signed by the testator, and dated, but the names of no subscribing or attesting witnesses appeared signed thereto, nor was the entry written in such a manner as to obliterate or cancel any material portion of the will. That such entry did not have the effect of revoking based upon envy, jealousy, uncharitableness, socialThe popular clamor against trusts is very largely the will. The court refers to a case which it ism and ignorance; and still more largely upon the had previously decided where it was held that insincerity of politicians seeking for an ad captanin order for a written entry upon a will to dum issue to catch populistic votes.

I have not yet seen any clear statement of the Next, as better results on a larger scale seemed special evils of "trusts" that differ from those desirable, some benefactor of the race devised the equally chargeable to small corporations, firms or "corporation," whereby any one of small capital individuals. Until there is a clear and exact speci- might contribute to his ability, even though but one fication of the special evils that inhere in "trusts" share in amount, and proportionately share in the only, it will be impossible to correct or remove them. gains. This was a distinct advance on the lines of Until those evils are seen and known they cannot be evolution for the development of potentialities. fought. An unseen foe is invulnerable. After all, As it had been proved that "firms" were good inmany doubt the existence of such "special evils." struments of commerce, that corporations" were The chief one, in my judgment, consists in the fact even more efficient, so it became evident to the master that every trust is organized under the law of a minds of commerce that corporations, like other persingle State which ostensibly confers the right to sons, might aggregate their separate forces into one do business in other States; frequently as to acts great whole, and, as a "combination," or "trust,” forbidden in the parent State, which alone, in its make, produce, buy and sell at a greater advantage own courts, has jurisdiction and power to annul to the shareholders and to the community than if its the franchise and prevent abuses thereunder. members acted as separate corporations. This was but an extension, or national evolution, of the original and fundamental idea that "in union there is strength."

A gross instance occurred under a charter of Pennsylvania (Land Grant Railway and Trust Company), whereby a certain corporation was, in terms, authorized to do business everywhere, except in Pennsylvania. When a case under that outrageous charter came before the Supreme Court of Kansas it was treated with just denunciation and was declared to be ultra vires, and void as to Kansas. But there might subsequently arise cause for like action in each and every State.

The greed of the States for fees from corporations is so hungry that wise limitations on corporate power are lacking to a dangerous degree. It is inconceivable that a federal statute could sanction the laxities of the corporation laws that exist in many of the States.

A uniform federal law for the organization and regulation of lawful "trusts," subject to the control of the federal judiciary, under the principles of the common law, as modified by our Constitution and statutes, would receive uniform construction and enforcement throughout the United States.

Indiscriminate, or destructive attack is simply silly. It is no less silly to insist upon drastic legislation to destroy or cripple the great "trusts." That would be the madness of socialism and paternalism; it would dwarf and restrain all united effort on the great scale now needed in the world-wide commercial battle.

Some trusts have been and are oppressive — so with firms and small corporations; but the oppressor halts when the oppressed properly resists.

As a consequence of evolution nearly all human industries, in agriculture, mining, manufactures, chemistry, art, literature and politics, are best, and naturally, carried on by combinations of many united for the common good. The work will not go downward and backward to the ancient plan of individual action only.

Substantially abandoning its attack upon "sound money" and "expansion," Bryanism or Populism now concentrates in another attack upon a law of evolution - the so-called "trusts"- those mighty The labor party and its "unions" are the most combinations of brains and money for the advance-powerful and dangerous of all the "trusts," and even ment of commerce — and demands their destruction. now they are using their power very harshly, yet I In the infancy of mankind each man was a would by no means "destroy" the power of those unit a solitary workman, hunter, fisher, builder-unions. They, too, are a production of evolution, his hand against every man, and every man against and in the near future a further and upward step in him. their proper regulation will be taken, so that their power will be recognized for good and not for ill.

Slowly, under the law of evolution, small bands combined for common protection or common assault. Villages grew out of "combinations," then towns, cities, States and nations.

In like manner the agriculturist, the tradesman and the manufacturer discovered that two hands two heads and two purses were better and stronger than one of half the power. So "firms," or partnerships arose.

The destructive attack upon trusts is an attack upon evolution; and it will necessarily fail as have failed the previous attacks of the socialists and populists upon the laws which govern sound money and national growth.

The power of congress to regulate commerce should be considered in several aspects:

I. The power to regulate interstate and foreign

2. The power to regulate interstate and foreign commerce, the term commerce" being construed so as to include the "products" of farms, mines and factories when sold among the States and internationally as the "subjects" of commerce.

3. The power to regulate within a State.

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The Supreme Court has held that in criminal cases the common law is not enforced in the federal commerce" wholly courts. But, so far as "trusts" act criminally, the Sherman act seems to be sufficient and its validity frequently has been upheld.

4. The power to regulate interstate and foreign commerce by a general act to create and regulate corporations for producing and selling among the States and foreign nations the subjects of commerce. 5. The power to secure uniformity in organizing and regulating corporations affected by commercial relations among the States.

6. As to need or advisability of an amendment to the federal Constitution to increase the power of congress in regard to regulating commerce or the production of the "subjects" of commerce.

The following reflections are made upon these points, without taking them categorically:

The beneficent wisdom of the federal Constitution largely resides in the fact that its powers and limitations and the denudation of State powers are stated in broad and general terms, with no attempt to formulate a detailed code." Thus it is that it

The principles of that act and of the common law in respect to monopolies, often have been applied in federal and State courts. In 1890 the New York Court of Appeals, in the Sugar Trust case, put an end to technical "trusts," by deciding that there can be no aggregation of separate corporations through the medium of a trust. Substantially, since then, there have been no such "trusts" merely great corporations which possessed the properties and powers of several corporations transferred to and fully vested in a new great corporation, such as is now (untechnically) called a

"trust."

In 1892 the Supreme Court of Ohio dissolved the Standard Oil Trust.

In Illinois the Whiskey Trust was destroyed. And many such decisions have been made. And possesses a benign elasticity responsive to judicial yet the vast corporations commonly known as the interpretation capable of adaptation to the needs Oil, the Whiskey and Sugar "trusts," under indiof the people as evolutionary changes may require. vidual corporate form, are more powerful than ever. Nothing else in the field of "government' so well The United States Supreme Court, in the Transshows "adaptability " to the needs of man in society, Missouri case held that a contract for rates between except the wonderful common law, of which Chan-inter-State railway companies was in contravention cellor Kent said: of the Sherman act; and yet similar agreements are These and common and effective in many cases. other like decisions were hailed as victories against trusts, both in the technical and the popular meanings.

“The common law may be cultivated as part of the jurisprudence of the United States. In its improved condition in this country, under the benign influence of an expanded commerce, of enlightened justice, of republican principles and of sound philosophy, the common law has become a code of natural ethics and enlarged civil wisdom, admirably adapted to promote and secure the freedom and happiness of social life."

And the same great chancellor quotes with one with capital to invest is eager to put it into some approval from Du Ponceau:

vast corporation or trust," rather than in a small company. Evils there are; but they are chiefly inherent in man's selfishness, and that quality inheres in the individual, the firm and the small corporation, just as it does in the mightiest

trust." The

to

We live in the midst of the common law; we inhale it at every breath, imbibe it in every pore; we meet with it when we wake, when we lie down to sleep, when we travel and when we stay at home, and it is interwoven with the very idiom we speak, and we can not learn another system of laws without learning at the same time another language." Although there has been no express adoption of the common law by the United States, yet, as that law was in force in all of the States at the adoption The chief object of the commercial clause of the of the Constitution, and has been formally adopted by Constitution was to secure "uniform" control of all of the States (except Louisiana) and is followed inter-State commerce and to avoid the harmful conby the federal courts whenever jurisdiction of a flict among the diverse commercial laws of the case is otherwise obtained, it is to be hoped that thirteen States. The debates in the Constitutional

greater corporation has the greater power monopolize" or to engage in "unfair competition; but these obnoxious acts can be regulated or enjoined under existing laws; and will be when, public opinion really wishes it to be done.

Conventions, the Federalist, and the great decisions produce the bulk of the "things of commerce." To of Marshall in Gibbons v. Ogden, Brown v. Mary-secure such regulation of interstate commerce, conlan, McCulloch v. Maryland and other cases, clearly gress, the paramount regulating power, should exersanction this statement. cise its authority and pass an act to organize corpo"Manufactures" and corporations' were few rations which corporations should be construed and unimportant at that date. to be a means of producing the subjects of comInter-State commerce" merce, and thus be one of the chief “means 'instrumentalities" of interstate commerce.

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and “bankruptcy" did exist, largely, and both were put under the control of congress for the purpose of securing the needed "uniformity."

The amazing expansion of commerce, and of its chief subject - manufactures, the addition of more than thirty new States, and the increase by more than sixty millions of inhabitants, tremendously emphasize the need of paramount federal control of interstate and foreign commerce, and of all its implied means, instrumentalities and subjects.

or

Every State has and exercises all these powers, and had them at the formation of the Federal Constitution, domestically. Such powers remained in the States afterward, except only as to interstate and foreign commerce, to the same extent as it had formerly existed in the States, which, by the Constitution, expressly denuded themselves of that sort of control. As that power ceased to have State existence, it must, of necessity, inhere in the United States.

Frequently the United States Supreme Court has upheld this power in regard to questions arising That congress has plenary power does not preclude under corporations in respect to these subjects – action by the States until congress exercises its railways, bridges, vessels, navigation, telegraphs, power by appropriate legislation; and that until such trademarks, ferries, fisheries, ports, harbors, power is exercised the States may charter "trusts " wharves, telephones, transportation of freights and is shown in Cooley v. Wardens (12 How.), where, passengers, storage warehouses, elevators, news-speaking for the Supreme Court, Mr. Justice Curtis papers, natural gas, etc. said:

Under such national charters, railways, bridges, "The grant of commercial power to congress does vessels, etc., have been manufactured and operated. not contain any terms which expressly exclude the They were regarded as "instruments of commerce." States from exercising an authority over its subBut is not a factory which builds a bridge or loco-ject-matter. If they are excluded it must be because motive used for interstate commerce a requisite the nature of the power, thus granted to congress, subject, means and instrument of such commerce? requires that a similar authority should not exist He who builds a machine or bridge for his own use, in his own State, and does not lease or sell it for use, is not engaged in commerce; his "manufacture" is not a subject on any part of commerce." But when he builds such machines for sale and does sell them among the States, clearly he is engaged in commerce and the business of building such machines for such sales is within the commercial clause of the Constitution, and the same is true of the products of farms, mines and fisheries as well as of factories, whenever produced for and actually sold among the States.

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"Commerce" is a word of great scope. It really means con-merx — with merchandise, or rather it comes from con-mercatores-dealings between merchants. Its regulation, therefore, to be complete, must apply to all the things included in that meaning among which are its subjects (merchandise), its exchange and transportation, its instrumentalities, and also the means by which the goods it deals in are produced.

The chief "subjects" of interstate commerce are the productions of factories, mines, farms, etc. To wisely regulate their production is to regulate the larger part of the dealings of commerce. And the chief factor in such regulation would be found in the regulation of the agencies which produce the subjects dealt in by merchants engaged in interstate commerce. The greatest of these agencies are the corporations, which, by means of factories, etc.,

in the States. If it were conceded on the one side that the nature of this power, like that to legislate for the District of Columbia, is absolutely and totally repugnant to the existence of similar power in the States, probably no one would deny that the grant of the power to congress, as effectually and perfectly excludes the States from all future legislation on the subject, as if express words had been used to exclude them. And, on the other hand, if it were admitted that this power in congress, like the power of taxation, is compatible with the existence of a similar power in the States, then it would be in conformity with the contemporary exposition of the Constitution (Federalist, No. 32), with the judicial construction, given from time to time by this court, to hold that the mere grant of such a power to congress, did not imply a prohibition on the States to exercise the same power; that it is not the mere existence of such a power, but its exercise by congress, which may be incompatible with the exercise of the same power by the States, and that the States may legislate in the absence of congressional regulations."

"The diversities of opinion, therefore, which have existed on this subject have arisen from the different views taken of the nature of this power.

"But when the nature of a power like this is spoken of, when it is said that the nature of the power requires that it should be exercised exclusively by congress, it must be intended to refer to the subjects of that power, and to say that they are of such