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THE GREEN BAG
times. In the performance of this, their highest duty, the federal courts are no part of the administration. They will not answer to its needs or its criticism. But they are a part of the nation, and in the past have responded, and ought always to respond to the deep, abiding, organic changes in the national life. There never was a time when the inter pretation of the Constitution required a more careful consideration of living conditions than to-day. Within the last fifty years economic forces have been introduced into our life that are as revolutionary of pre existing conditions as the introduction of gunpowder was of the state of feudalism. Seward's statement in the debate of 1850 that, " Commerce is the god of boundaries and no man now living can tell its ultimate decree," is far more true at present than when it was uttered. When the Constitution was adopted the unit of our social and business life was the commonwealth. With the exception of the foreign and coasting trade, the commerce and industry of each state was confined to its own borders. The union was political instead of industrial or commercial. To-day our industry and our commerce are national. They are made aware of state lines only by conflicting and often narrowly selfish enactments. The units of commercial and industrial organi zation extend to many states, often to the entire nation. Instead of being required to obey one master, business is compelled to obey many. Coincident with this enlarge ment of business enterprise to embrace different States, has occurred a revolution in State activity. During the first half of the nineteenth century the doctrine of lais sez-faire was the fundamental principle of government. The state left commerce and industry to private control. To-day that is all changed. Government is now present in all lines of business. When the State reg ulated but little, business was not much con cerned who did the regulating. But now that all governments are competing in their
zeal for regulation, whether one govern ment or many, the nation or the states, shall do the regulating, becomes a matter of paramount importance. These changed conditions in our actual life compel a reconsideration of our divided governmental authority to see what now belongs to the nation, and what to the states. The prob lem is not the same as it was; it cannot be answered by reading history or studying precedents. The new condition has manifested itself most conspicuously in two fields, the rail road and the interstate industrial corpora tion. At the beginning the railroads were local. There was a time when in making a shipment of freight from New York to Buffalo, at least three different bills of lading were required. Now five great systems embody more than three-fourths of the total mileage of the country, and the work of consolidation is still in progress. There are no longer state roads, but all are instruments of interstate commerce Actual statistics are wanting, but persons in a posi tion to know, are of the opinion that the local business of the railroads does not exceed fifteen per cent of their entire traffic. In a case tried in one of our western states a few years ago, it was judicially found that the local business there involved amounted to less than three per cent. In the face of these conditions, it is impossible to maintain over common carriers the manifold control of the different states and the federal government. There is no way in which local business can be separated from through business. The same roadbed serves both; both are carried in the same train and by the same crew. Back of every schedule of rates prescribed by government is the question, Are those rates reasonably compensatory? Under our present system that question as to state rates must be decided solely upon local business, and as to interstate rates solely upon inter state business. The court cannot look to the entire traffic in judging of the reasonable ness of either. While it is possible to ascer
