persons engaged in the same line of business, and take away the property of one without due process ** and without just compensation in violation of the 5th, 6th, 9th and 10th Amendments** without molesting the other (Id. pp. 875-6).

These do not suggest the reason that the Act violates the constitutional separation of powers.

We cannot obtain a perfect institution at the first attempt.

By the Act of June 18, 1910, Congress created a Commerce Court to which judicial questions arising in the administration of the Interstate Commerce Acts could be taken. This Act sought to serve two great purposes. It gave us a Court to aid the Interstate Commerce Commission, and it sought to separate the judicial proceedings from the administrative, and confide the judicial questions to a judicial body. That court was called on to apply the great principles of law to the administrative processes of the Interstate Commerce Commission; but, rightly or wrongly, the public and Congress came to believe that it proceeded as if it were a court of final review as a body of judges of law; and in a considerable series of cases it reversed the Commission, only to be itself reversed by the Supreme Court: and the repeal of the Act soon followed. It is submitted that Congress should have amended the Act instead of repealing it.

But among the legal institutions needed and demanded by the business life of the country today are a Federal Trade Commission which, by a revision of the statutes, will be given power to license business enterprises, subject to visitation, supervision and correction; and a new Commerce Court to which these judicial questions involved in the proceedings of the Commission may be referred.

The Commerce Court was a good institution and its creation was a step in the right direction. It is often the case that when a good institution does not work perfectly at the beginning, it is impatiently discarded, and the good which it might accomplish is lost. The re-establishment of the Commerce Court is needed now.

It is not difficult to think of that Court as being so reconstituted that there would be a commerce branch of each United States District Court, which would promptly hear cases arising under the Federal Trade Commission Act, the Interstate Commerce Act and the Labor Acts. This will require the

appointment of additional Federal Judges; and such additional Federal Judges are needed.

With thousands of pages of new National legislation and hundreds of new National bureaus of administration at work, trying to keep up with the ever multiplying forms of new industrial and commercial activity, there is need of new branches of cur National courts, conducted by judges adapted to this new type of work; and who should not merely hold courts in a few great cities, but who will go to the different parts of their districts and conduct judicial investigations in the places where the need of such work arises, and bring the application of these new National Laws home to the people.

IV. Social and Economic Tendencies of this
New Legislation

Legislation may be classified as (a) individualistic or (b) associational,- as enacted (1) by the local or (2) the General Government, or as either (I) promotive, or (II) restrictive of competition.

These classifications crcss each other in interesting ways. A man may have strong convictions, favoring individualist policy, home rule policy, and laissez faire. He may so blend these three ideas of policy as to think that they are inseparable, and that in order to be good, a measure must be classifiable on his side as individualistic, local, and promotive of competition; but this would be a misapprehension.

A measure may be individualistic and yet enacted by the National Government, as in the case of the civil rights legislation; or it may be restrictive of competition and yet enacted by the local government, as in the enactment involved in the New Orleans Slaughter House case, or in the numerous exclusive licenses of public utilities; or it may be promotive of competition and yet enacted by the local municipal government, as in the case of ordinances impartially granting merchant licenses to all who comply with simple and uniform conditions; or it may be restrictive of competition and enacted by the General Government, as in the case of our laws granting exclusive patents for inventions, or in the granting of exclusive water power licenses on navigable streams; or it may be promotive of competition and yet emanate from the National Government, as in the case of the Homestead Entry legislation for the disposal of public lands.

The good is not all on one side of any of these classifications, and the test of experience is necessary to determine upon each measure its quota of good and ill.

It is America's good fortune that she has 48 States and some 70 large cities of over 100,000 people each, and some 80 more of over 50,000 people each, in which diverse ideas of state and municipal legislation may be tried; and it is one of the functions of Bar Associations to develop comparative views of the workings of such legislation upon principles which aim to avoid local and partisan bias.

The individualist and the associational or co-operative conceptions of the public and the state have grown up together in our law. Now one has dominated and now the other. The association conception is firmly imbedded in the preamble to the Constitution: "We, the People of the United States, in order (1) to form a more perfect union, (2) establish justice, (3) insure domestice tranquillity, (4) provide for the common defense, (5) promote the general welfare, and (6) secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution." Union, common defense, general welfare andposterity, all connote the social conception of the state as distinguished from individualism.

The Acts which we are considering illustrate this social conception. In all these Acts of Congress may be found evidences of a common purpose to legislate for the welfare of the poor ;- and in several of them the resort to a bureau or commission as the instrument to administer the Act and carry it into execution.

And most practical men have an inclination to think of the purpose as good and the instrument as bad.

The Vocational Education and Rehabilitation Acts, and the Acts for Federal Aid in the construction of highways,- by which the National Government contributes one-half the total cost and the State in which the work is carried on, the other one-half, illustrate new uses of national power, and also present new examples of partnership between the National and State Governments.

A bureau of the National Government, in Washington, will determine the location, the character and standards of such works, and will exercise control of their operation. The tendency will be to increase the importance of the directing bureau, to stimulate expenditure, to promote development and to increase taxation. The National Government will exer

cise the initiative, will advance the funds, and assume control. Something similar occurred in the era of canal construction in the early and middle portion of the 19th century,- in such cases as the Louisville Canal at the falls of the Ohio,which was built by a private corporation in which the National Government became the principal stockholder. The ultimate result was the turning over of the entire work to the National Government.

But the precedent in the development of the waterways, while pointing to Government control is not adverse to such control. Government control of the rivers, although attended by prodigality and waste, has on the whole been beneficial; and few would wish to go back to the diversified control of such streams by the States.

The Conservation Acts primarily seek to conserve natural resources for the whole people and for posterity; and to secure such regulations of their use as will prevent monopolies and perpetuities.

The Health and Labor regulations seek to conserve the health of the citizens and the mothers of future citizens.

The Educational and Rehabilitation measures seek to render the weak and disabled more able to take care of himself.

The Farm Conservation and Promotion Acts recognize that the farmer is indispensable to society; that he has been handicapped by isolation and lack of organization.

The Trade regulations recognize similar conditions, touching the individual consumer; and both series of Acts aim to protect the weaker against misuse of power by the stronger.

And in this they embody one of human nature's most natural and creditable instincts, the instinct of sympathy. The basis of social advance, says SHALER, is found in the development of society in ways in which the sympathies may be enlarged. (N. S. SHALER, "The Individual," p.147.)

In our most gentlemanly sports we use handicaps, putting certain burdens on the swifter and stronger and more skillful, or granting certain premiums to the slower, the weaker and the less skillful, in order to enable the latter to meet the former on terms of equality in the game.

The whole purpose of the handicap is to produce equality, and this purpose underlies many of the new uses of national power.

We are occasionally told that the legislature has no business and no right to consider such elements. Assuredly such

considerations were not favored during the first century of American development, when frontier conditions prevailed and individualism dominated our law; and they have not come into recognition without a struggle. But with the urbanization of our people the new conditions have brought the new conceptions into activity.

To illustrate some portion of the struggle, let me read here a short summary by Dean ROSCOE POUND, Professor of Jurisprudence in Harvard Law School. In an article published in 1914 on "Social Justice and Legal Justice," he says:

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"Two of our State Courts, in passing adversely upon labor legislation because it infringed upon a theoretical equality of contract, noted the frequency of such legislation in recent times, but said (one of them as late as 1902). that it was not necessary to consider the reasons therefor. Another court asked what right the Legislature had to assume that one class has need of protection against another.' Another court said gravely that the remedy for the company-store evil was 'in the hands of the employee,' since he is not compelled to buy from the employer; 'overlooking that there may be a compulsion in fact where there is none in law. Another said that 'theoretically there is among our citizens no inferior class,' and, of course, no facts could avail against that theory. Because it violated a theoretical abstract equality, legislation designed to give workers some measure of practical independence under the actual conditions of modern industry, was said by State Courts at the end of the nineteenth century to put them under guardianship, to create a class of statutory laborers, and to stamp industrial laborers as imbeciles. As late as 1908 even the Supreme Court of the United States dealt with the relation of employer and employee in railway transportation as if the parties were farmers haggling over the sale of a horse. Only the other day the highest Court of New York told us that a Workmen's Compensation Act 'does nothing to conserve the health, safety or morals of