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THE GREEN BAG
of a joining of forces between two or more individuals, is a matter raising directly the question of public policy, and giving juris diction to the courts and to the law-makers. Congress has power to expand the limits of monopoly and combination as known at com mon law, as it has by the Sherman Act for bidding not merely unreasonable but all com binations in restraint of trade, omitting the element of degree, although that had always previously been an element in the application of the principle. "It is, therefore, competent to Congress — we are speaking here, in a purely academic way, of power, not of policy — to exclude from the national field, on the ground of public policy, not only corporations, but partnerships, boards of trustees of Trusts, and, in fact, any group of two or more persons; and there is no sacredness in state incorporated association, as against Federal power, above other forms of association. We do not need to undertake to draw from this national power of exclusion, in and of itself, the conclusion of the power of Congress to require a national charter; but the power of exclusion tends to make this conclusion more easy of domestica tion in the mind." Third. From the incapacity of the states under Art. i, Sec. 10, to make compacts or agreements with each other, without the con sent of Congress, it may be inferred that Con gress can legislate in the vast number of instances where corporate business is done under the joint power of two or more states. "It may be said, in reply, that the present system works smoothly; that —- in respect of railroads, for example — out of the very in capacity of the states to bind themselves to each other by compact, deft nature has, by a beneficent evolution, developed in the states a capacity to act in steady concert without binding compact; and that this pleasing result nullifies all a priori argument drawn from the incapacity to contract. ' Behold, how good and how pleasant it is for brethren to dwell together in unity! ' Undoubtedly, there is a good deal of truth in the statement of actual harmony and concert; but, to complete the picture, it should be added that, in a large degree, nature has evolved the present har mony in railroad legislation, by putting the control of the state governments, in respect of
railroad matters, largely into the hands of the railroads. It is not so much that the states have developed a golden age of harmony among themselves, as that they have been rolled flat by the railroads." Fourth. The absence of power in a state to exclude a corporation of another state en gaged in interstate commerce, rests not upon any affirmative constitutional or other pro vision, but upon the fact that the regulation of such commerce is exclusively for Congress, and that if Congress does not regulate it, it goes without regulation. "The field of interstate commerce activity is, so far, a vacant region, where each man raises his Ishmael's-hand against his fellow-man, not because he has the right to do so, but because no one who has the power to stay him has interposed. It is not questioned that Congress has the right to put an end to this lawlessness; to substitute law for absence of law; to sub stitute government for anarchy. But, it is constantly said, Congress can do so only in the form of establishing rules for state-char tered corporations. But these rules, it seems clear, may go to the exclusion of such corpor ations altogether, on the ground of a federal policy of law to that effect. Or, without going so far, Congress could certainly fix unifonn rules of capitalization, stock-issue, and all other internal affairs of state-chartered corporations as conditions precedent; for it has been solemnly adjudged that state corporationcharters do not override the Constitution and laws of the United States, and without the power to prescribe such symmetry and uni formity, there would be no effective power to regulate. The several states, therefore, in order to hold the field for their respective corporations, would, at the demand of Con gress, at least have to enact corporation laws according to a form prescribed by Congress. A power to dictate legislation travels close to a power to legislate." Fifth. "Much of the vagueness and un certainty that pervades the discussion of this subject, arises out of a failure to recognize the fact that the field, except in so far as the national legislature has dealt with it, is un occupied." "No intelligent settlement of this question can ever be had, until there is not merely a formal, lifeless, literal admission, but
