Theodore Roosevelt (1858–1919). An Autobiography. 1913.
XV. The Peace of Righteousness. Appendix A: The Trusts, the People, and the Square Deal
[Written when Mr. Taft’s administration brought suit to dissolve the steel corporation, one of the grounds for the suit being the acquisition by the Corporation of the Tennessee Coal and Iron Company; this action was taken, with my acquiescence, while I was President, and while Mr. Taft was a member of my cabinet; at the time he never protested against, and as far as I knew approved of my action in this case, as in the Harvester Trust case, and all similar cases.]
The suit against the Steel Trust by the Government has brought vividly before our people the need of reducing to order our chaotic Government policy as regards business. As President, in Messages to Congress I repeatedly called the attention of that body and of the public to the inadequacy of the Anti-Trust Law by itself to meet business conditions and secure justice to the people, and to the further fact that it might, if left unsupplemented by additional legislation, work mischief, with no compensating advantage; and I urged as strongly as I knew how that the policy followed with relation to railways in connection with the Inter-State Commerce Law should be followed by the National Government as regards all great business concerns; and therefore that, as a first step, the powers of the Bureau of Corporations should be greatly enlarged, or else that there should be created a Governmental board or commission, with powers somewhat similar to those of the Inter-State Commerce Commission, but covering the whole field of inter-State business, exclusive of transportation (which should, by law, be kept wholly separate from ordinary industrial business, all common ownership of the industry and the railway being forbidden). In the end I have always believed that it would also be necessary to give the National Government complete power over the organization and capitalization of all business concerns engaged in inter-State commerce.
A member of my Cabinet with whom, even more than with the various Attorneys-General, I went over every detail of the trust situation, was the one time Secretary of the Interior, Mr. James R. Garfield. He writes me as follows concerning the suit against the Steel Corporation:
“Nothing appeared before the House Committee that made me believe we were deceived by Judge Gary.
“This, I think, is a case that shows clearly the difference between destructive litigation and constructive legislation. I have not yet seen a full copy of the Government’s petition, but our papers give nothing that indicates any kind of unfair or dishonest competition such as existed in both the Standard Oil and Tobacco Cases. As I understand it, the competitors of the Steel Company have steadily increased in strength during the last six or seven years. Furthermore, the per cent of the business done by the Steel Corporation has decreased during that time. As you will remember, at our first conference with Judge Gary, the Judge stated that it was the desire and purpose of the Company to conform to what the Government wished, it being the purpose of the Company absolutely to obey the law both in spirit and letter. Throughout the time that I had charge of the investigation, and while we were in Washington, I do not know of a single instance where the Steel Company refused any information requested; but, on the contrary, aided in every possible way our investigation.
“The position now taken by the Government is absolutely destructive of legitimate business, because they outline no rule of conduct for business of any magnitude. It is absurd to say that the courts can lay down such rules. The most the courts can do is to find as legal or illegal the particular transactions brought before them. Hence, after years of tedious litigation there would be no clear-cut rule for future action. This method of procedure is dealing with the device, not the result, and drives business to the elaboration of clever devices, each of which must be tested in the courts.
“I have yet to find a better method of dealing with the anti-trust situation than that suggested by the bill which we agreed upon in the last days of your Administration. That bill should be used as a basis for legislation, and there could be incorporated upon it whatever may be determined wise regarding the direct control and supervision of the National Government, either through a commission similar to the Inter-State Commerce Commission or otherwise.”
Before taking up the matter in its large aspect, I wish to say one word as to one feature of the Government suit against the Steel Corporation. One of the grounds for the suit is the acquisition by the Steel Corporation of the Tennessee Coal and Iron Company; and it has been alleged, on the authority of the Government officials engaged in carrying on the suit, that as regards this transaction I was misled by the representatives of the Steel Corporation, and that the facts were not accurately or truthfully laid before me. This statement is not correct. I believed at the time that the facts in the case were as represented to me on behalf of the Steel Corporation, and my further knowledge has convinced me that this was true. I believed at the time that the representatives of the Steel Corporation told me the truth as to the change that would be worked in the percentage of the business which the proposed acquisition would give the Steel Corporation, and further inquiry has convinced me that they did so. I was not misled. The representatives of the Steel Corporation told me the truth as to what the effect of the action at that time would be, and any statement that I was misled or that the representatives of the Steel Corporation did not thus tell me the truth as to the facts of the case is itself not in accordance with the truth. In The Outlook of August 19 last I gave in full the statement I had made to the Investigating Committee of the House of Representatives on this matter. That statement is accurate, and I reaffirm everything I therein said, not only as to what occurred, but also as to my belief in the wisdom and propriety of my action—indeed, the action not merely was wise and proper, but it would have been a calamity from every standpoint had I failed to take it. On page 137 of the printed report of the testimony before the Committee will be found Judge Gary’s account of the meeting between himself and Mr. Frick and Mr. Root and myself. This account states the facts accurately. It has been alleged that the purchase by the Steel Corporation of the property of the Tennessee Coal and Iron Company gave the Steel Corporation practically a monopoly of the Southern iron ores—that is, of the iron ores south of the Potomac and the Ohio. My information, which I have every reason to believe is accurate and not successfully to be challenged, is that, of these Southern iron ores the Steel Corporation has, including the property gained from the Tennessee Coal and Iron Company, less than 20 per cent—perhaps not over 16 per cent. This is a very much smaller percentage than the percentage it holds of the Lake Superior ores, which even after the surrender of the Hill lease will be slightly over 50 per cent. According to my view, therefore, and unless—which I do not believe possible—these figures can be successfully challenged, the acquisition of the Tennessee Coal and Iron Company’s ores in no way changed the situation as regards making the Steel Corporation a monopoly. The showing as to the percentage of production of all kinds of steel ingots and steel castings in the United States by the Steel Corporation and by all other manufacturers respectively makes an even stronger case. It makes the case even stronger than I put it in my testimony before the Investigating Committee, for I was scrupulously careful to make statements that erred, if at all, against my own position. It appears from the figures of production that in 1901 the Steel Corporation had to its credit nearly 66 per cent of the total production as against a little over 34 per cent by all other steel manufacturers. The percentage then shrank steadily, until in 1906, the year before the acquisition of the Tennessee Coal and Iron properties, the percentage was a little under 58 per cent. In spite of the acquisition of these properties, the following year, 1907, the total percentage shrank slightly, and this shrinking has continued until in 1910 the total percentage of the Steel Corporation is but a little over 54 per cent, and the percentage by all other steel manufacturers but a fraction less than 46 per cent. Of the 54.3 per cent produced by the Steel Corporation 1.9 per cent is produced by the former Tennessee Coal and Iron Company. In other words, these figures show that the acquisition of the Tennessee Coal and Iron Company did not in the slightest degree change the situation, and that during the ten years which include the acquisition of these properties by the Steel Corporation the percentage of total output of steel manufacturers in this country by the Steel Corporation has shrunk from nearly 66 per cent to but a trifle over 54 per cent. I do not believe that these figures can be successfully controverted, and if not successfully controverted they show clearly not only that the acquisition of the Tennessee Coal and Iron properties wrought no change in the status of the Steel Corporation, but that the Steel Corporation during the decade has steadily lost, instead of gained, in monopolistic character.
So much for the facts in this particular case. Now for the general subject. When my Administration took office, I found, not only that there had been little real enforcement of the Anti-Trust Law and but little more effective enforcement of the Inter-State Commerce Law, but also that the decisions were so chaotic and the laws themselves so vaguely drawn, or at least interpreted in such widely varying fashions, that the biggest business men tended to treat both laws as dead letters. The series of actions by which we succeeded in making the Inter-State Commerce Law an efficient and most useful instrument in regulating the transportation of the country and exacting justice from the big railways without doing them injustice—while, indeed, on the contrary, securing them against injustice—need not here be related. The Anti-Trust Law it was also necessary to enforce as it had never hitherto been enforced; both because it was on the statute-books and because it was imperative to teach the masters of the biggest corporations in the land that they were not, and would not be permitted to regard themselves as, above the law. Moreover, where the combination has really been guilty of misconduct the law serves a useful purpose, and in such cases as those of the Standard Oil and Tobacco Trusts, if effectively enforced, the law confers a real and great good.
Suits were brought against the most powerful corporations in the land, which we were convinced had clearly and beyond question violated the Anti-Trust Law. These suits were brought with great care, and only where we felt so sure of our facts that we could be fairly certain that there was a likelihood of success. As a matter of fact, in most of the important suits we were successful. It was imperative that these suits should be brought, and very real good was achieved by bringing them, for it was only these suits that made the great masters of corporate capital in America fully realize that they were the servants and not the masters of the people, that they were subject to the law, and that they would not be permitted to be a law unto themselves; and the corporations against which we proceeded had sinned, not merely by being big (which we did not regard as in itself a sin), but by being guilty of unfair practices towards their competitors, and by procuring fair advantages from the railways. But the resulting situation has made it evident that the Anti-Trust Law is not adequate to meet the situation that has grown up because of modern business conditions and the accompanying tremendous increase in the business use of vast quantities of corporate wealth. As I have said, this was already evident to my mind when I was President, and in communications to Congress I repeatedly stated the facts. But when I made these communications there were still plenty of people who did not believe that we would succeed in the suits that had been instituted against the Standard Oil, the Tobacco, and other corporations, and it was impossible to get the public as a whole to realize what the situation was. Sincere zealots who believed that all combinations could be destroyed and the old-time conditions of unregulated competition restored, insincere politicians who knew better but made believe that they thought whatever their constituents wished them to think, crafty reactionaries who wished to see on the statute-books laws which they believed unenforceable, and the almost solid “Wall Street crowd” or representatives of “big business” who at that time opposed with equal violence both wise and necessary and unwise and improper regulation of business—all fought against the adoption of a sane, effective, and far-reaching policy.
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 Tabacco 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 Crœsus 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. If we examine this battle cry of political polemics, we find that it is based upon the conception of the divine right of property, and the preoccupation by older or more favored or more alert or richer men or nations, of territory, of the forces of nature, of machinery, of all the functions of what we call civilization. Some of these men, who are really great, follow these conceptions to their conclusions with dauntless intrepidity.”
When Senator Davis spoke, few men of great power had the sympathy and the vision necessary to perceive the menace contained in the growth of corporations; and the men who did see the evil were struggling blindly to get rid of it, not by frankly meeting the new situation with new methods, but by insisting upon the entirely futile effort to abolish what modern conditions had rendered absolutely inevitable. Senator Davis was under no such illusion. He realized keenly that it was absolutely impossible to go back to an outworn social status, and that we must abandon definitely the laissez-faire theory of political economy, and fearlessly champion a system of increased Governmental control, paying no heed to the cries of the worthy people who denounce this as Socialistic. He saw that, in order to meet the inevitable increase in the power of corporations produced by modern industrial conditions, it would be necessary to increase in like fashion the activity of the sovereign power which alone could control such corporations. As has been aptly said, the only way to meet a billion-dollar corporation is by invoking the protection of a hundred-billion-dollar government; in other words, of the National Government, for no State Government is strong enough both to do justice to corporations and to exact justice from them. Said Senator Davis in this admirable address, which should be reprinted and distributed broadcast:
“The liberty of the individual has been annihilated by the logical process constructed to maintain it. We have come to a political deification of Mammon. Laissez-faire is not utterly blameworthy. It begat modern democracy, and made the modern republic possible. There can be no doubt of that. But there it reached its limit of political benefaction, and began to incline toward the point where extremes meet.… To every assertion that the people in their collective capacity of a government ought to exert their indefeasible right of self-defense, it is said you touch the sacred rights of property.”
The Senator then goes on to say that we now have to deal with an oligarchy of wealth, and that the Government must develop power sufficient enough to enable it to do the task.
Few will dispute the fact that the present situation is not satisfactory, and cannot be put on a permanently satisfactory basis unless we put an end to the period of groping and declare for a fixed policy, a policy which shall clearly define and punish wrong-doing, which shall put a stop to the iniquities done in the name of business, but which shall do strict equity to business. We demand that big business give the people a square deal; in return we must insist that when any one engaged in big business honestly endeavors to do right he shall himself be given a square deal; and the first, and most elementary, kind of square deal is to give him in advance full information as to just what he can, and what he cannot, legally and properly do. It is absurd, and much worse than absurd, to treat the deliberate lawbreaker as on an exact par with the man eager to obey the law, whose only desire is to find out from some competent Governmental authority what the law is, and then to live up to it. Moreover, it is absurd to treat the size of a corporation as in itself a crime. As Judge Hook says in his opinion in the Standard Oil Case: “Magnitude of business does not alone constitute a monopoly … the genius and industry of man when kept to ethical standards still have full play, and what he achieves is his … success and magnitude of business, the rewards of fair and honorable endeavor [are not forbidden] … [the public welfare is threatened only when success is attained] by wrongful or unlawful methods.” Size may, and in my opinion does, make a corporation fraught with potential menace to the community; and may, and in my opinion should, therefore make it incumbent upon the community to exercise through its administrative (not merely through its judicial) officers a strict supervision over that corporation in order to see that it does not go wrong; but the size in itself does not signify wrong-doing, and should not be held to signify wrong-doing.
Not only should any huge corporation which has gained its position by unfair methods, and by interference with the rights of others, by demoralizing and corrupt practices, in short, by sheer baseness and wrong-doing, be broken up, but it should be made the business of some administrative governmental body, by constant supervision, to see that it does not come together again, save under such strict control as shall insure the community against all repetition of the bad conduct—and it should never be permitted thus to assemble its parts as long as these parts are under the control of the original offenders, for actual experience has shown that these men are, from the standpoint of the people at large, unfit to be trusted with the power implied in the management of a large corporation. But nothing of importance is gained by breaking up a huge inter-State and international industrial organization which has not offended otherwise than by its size, into a number of small concerns without any attempt to regulate the way in which those concerns as a whole shall do business. Nothing is gained by depriving the American Nation of good weapons wherewith to fight in the great field of international industrial competition. Those who would seek to restore the days of unlimited and uncontrolled competition, and who believe that a panacea for our industrial and economic ills is to be found in the mere breaking up of all big corporations, simply because they are big, are attempting not only the impossible, but what, if possible, would be undesirable. They are acting as we should act if we tried to dam the Mississippi, to stop its flow outright. The effort would be certain to result in failure and disaster; we would have attempted the impossible, and so would have achieved nothing, or worse than nothing. But by building levees along the Mississippi, not seeking to dam the stream, but to control it, we are able to achieve our object and to confer inestimable good in the course of so doing.
This Nation should definitely adopt the policy of attacking, not the mere fact of combination, but the evils and wrong-doing which so frequently accompany combination. The fact that a combination is very big is ample reason for exercising a close and jealous supervision over it, because its size renders it potent for mischief; but it should not be punished unless it actually does the mischief; it should merely be so supervised and controlled as to guarantee us, the people, against its doing mischief. We should not strive for a policy of unregulated competition and of the destruction of all big corporations, that is, of all the most efficient business industries in the land. Nor should we persevere in the hopeless experiment of trying to regulate these industries by means only of lawsuits, each lasting several years, and of uncertain result. We should enter upon a course of supervision, control, and regulation of these great corporations—a regulation which we should not fear, if necessary, to bring to the point of control of monopoly prices, just as in exceptional cases railway rates are now regulated. Either the Bureau of Corporations should be authorized, or some other governmental body similar to the Inter-State Commerce Commission should be created, to exercise this supervision, this authoritative control. When once immoral business practices have been eliminated by such control, competition will thereby be again revived as a healthy factor, although not as formerly an all-sufficient factor, in keeping the general business situation sound. Wherever immoral business practices still obtain—as they obtained in the cases of the Standard Oil Trust and Tobacco Trust—the Anti-Trust Law can be invoked; and wherever such a prosecution is successful, and the courts declare a corporation to possess a monopolistic character, then that corporation should be completely dissolved, and the parts ought never to be again assembled save on whatever terms and under whatever conditions may be imposed by the governmental body in which is vested the regulatory power. Methods can readily be devised by which corporations sincerely desiring to act fairly and honestly can on their own initiative come under this thoroughgoing administrative control by the Government and thereby be free from the working of the Anti-Trust Law. But the law will remain to be invoked against wrongdoers; and under such conditions it could be invoked far more vigorously and successfully than at present.
It is not necessary in an article like this to attempt to work out such a plan in detail. It can assuredly be worked out. Moreover, in my opinion, substantially some such plan must be worked out or business chaos will continue. Wrongdoing such as was perpetrated by the Standard Oil Trust, and especially by the Tobacco Trust, should not only be punished, but if possible punished in the persons of the chief authors and beneficiaries of the wrong, far more severely than at present. But punishment should not be the only, or indeed the main, end in view. Our aim should be a policy of construction and not one of destruction. Our aim should not be to punish the men who have made a big corporation successful merely because they have made it big and successful, but to exercise such thoroughgoing supervision and control over them as to insure their business skill being exercised in the interest of the public and not against the public interest. Ultimately, I believe that this control should undoubtedly indirectly or directly extend to dealing with all questions connected with their treatment of their employees, including the wages, the hours of labor, and the like. Not only is the proper treatment of a corporation, from the standpoint of the managers, shareholders, and employees, compatible with securing from that corporation the best standard of public service, but when the effort is wisely made it results in benefit both to the corporation and to the public. The success of Wisconsin in dealing with the corporations within her borders, so as both to do them justice and to exact justice in return from them toward the public, has been signal; and this Nation should adopt a progressive policy in substance akin to the progressive policy not merely formulated in theory but reduced to actual practice with such striking success in Wisconsin.
To sum up, then. It is practically impossible, and, if possible, it would be mischievous and undesirable, to try to break up all combinations merely because they are large and successful, and to put the business of the country back into the middle of the eighteenth century conditions of intense and unregulated competition between small and weak business concerns. Such an effort represents not progressiveness but an unintelligent though doubtless entirely well-meaning toryism. Moreover, the effort to administer a law merely by lawsuits and court decisions is bound to end in signal failure, and meanwhile to be attended with delays and uncertainties, and to put a premium upon legal sharp practice. Such an effort does not adequately punish the guilty, and yet works great harm to the innocent. Moreover, it entirely fails to give the publicity which is one of the best by-products of the system of control by administrative officials; publicity, which is not only good in itself, but furnishes the data for whatever further action may be necessary. We need to formulate immediately and definitely a policy which, in dealing with big corporations that behave themselves and which contain no menace save what is necessarily potential in any corporation which is of great size and very well managed, shall aim not at their destruction but at their regulation and supervision, so that the Government shall control them in such fashion as amply to safeguard the interests of the whole public, including producers, consumers, and wage-workers. This control should, if necessary, be pushed in extreme cases to the point of exercising control over monopoly prices, as rates on railways are now controlled; although this is not a power that should be used when it is possible to avoid it. The law should be clear, unambiguous, certain, so that honest men may not find that unwittingly they have violated it. In short, our aim should be, not to destroy, but effectively and in thoroughgoing fashion to regulate and control, in the public interest, the great instrumentalities of modern business, which it is destructive of the general welfare of the community to destroy, and which nevertheless it is vitally necessary to that general welfare to regulate and control. Competition will remain as a very important factor when once we have destroyed the unfair business methods, the criminal interference with the rights of others, which alone enabled certain swollen combinations to crush out their competitors—and, incidentally, the “conservatives” will do well to remember that these unfair and iniquitous methods by great masters of corporate capital have done more to cause popular discontent with the propertied classes than all the orations of all the Socialist orators in the country put together.
I have spoken above of Senator Davis’s admirable address delivered a quarter of a century ago. Senator Davis’s one-time partner, Frank B. Kellogg, the Government counsel who did so much to win success for the Government in its prosecutions of the trusts, has recently delivered before the Palimpsest Club of Omaha an excellent address on the subject; Mr. Prouty, of the Inter-State Commerce Commission, has recently, in his speech before the Congregational Club of Brooklyn, dealt with the subject from the constructive side; and in the proceedings of the American Bar Association for 1904 there is an admirable paper on the need of thoroughgoing Federal control over corporations doing an inter-State business, by Professor Horace L. Wilgus, of the University of Michigan. The National Government exercises control over inter-State commerce railways, and it can in similar fashion, through an appropriate governmental body, exercise control over all industrial organizations engaged in inter-State commerce. This control should be exercised, not by the courts, but by an administrative bureau or board such as the Bureau of Corporations or the Inter-State Commerce Commission; for the courts cannot with advantage permanently perform executive and administrative functions.