Passing from these generalizations, what I desire to particularly call the attention of this Association to, is the tendency of the increase of governmental power, by judicial interpretation in particular.

In the first place, I desire to consider the increase of the power of the Federal Government as illustrated by the interpretation of several parts of the Constitution; and in the second place, I desire to discuss the increase of governmental powers generally, both in the State Government and the Federal Government.

As an illustration of the growth of these two powers, I have selected, in reference to the increase of the power of the Federal Government by judicial interpretation, first, the increase of Federal power by reason of the adoption and interpretation of the XIV Amendment; and second, the increase of the power of the Federal Government by reason of the interpretation of the Commerce Clause of the Federal Constitution.

And as an illustration of the increase of the powers of government, both State and Federal, I have selected the line of cases in reference to the regulation of business, and particularly in regard to the regulation of prices.

When the Fourteenth Amendment was adopted, few men, if, indeed, any man, saw in it the great increase of the power of the Federal Government that has come out of it.

In the Slaughter House cases, Mr. Justice Miller said, after declaring that no questions so "important in their bearings upon the relation of the United States, and the several states to each other, and to the citizens of the States and of the United States, have been before this court during the official life of any of its members," finally said of this amendment:

"We do not say that no one else but the negro can share in this protection. Both the language and the spirit of these Articles are to have their fair and just weight in any question of construction. Undoubtedly while negro slavery alone was in the mind of the Congress which proposed the thirteenth Article, it forbids any other kind of slavery now or hereafter. If Mexican peonage, or the Chinese cooley labor system shall develop slavery of the Mexican or Chinese race within our territory, this amendment may safely be trusted to make it void, and so if other

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rights are assailed by the States, which properly and necessarily fall within the protection of these Articles, that protection will apply, though the party interested may not be of African descent. And at length the court said: "We doubt very much whether any action of a State, not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision. It is so clearly a provision for that race and that emergency, that a strong case would be necessary for its application to any other."

When thinking upon these words, just forty-one years old, how strangely in contrast are the real results of the interpretation of this amendment.

Under the glowing definition of the law of the land given. in the Dartmouth College case by Webster, buttressed by the additional phrase of "equal protection of the laws," it was established that this amendment was broad enough to destroy all class legislation by the States. If there is a phase of judicial power as broad as that exercised under the police power, it is the power of a court under the doctrine that permits it to pass upon the question as to whether or not a given legislative enactment is a capricious classification. Under this phase of this amendment, many state statutes have been annulled-statutes in regard to the conduct of business, the employment of labor, the equipment of plants and the like. Under the property clause of the amendment, have evolved the powers of the Federal tribunal not only to pass upon various enactments commonly regarded as taking property, but all the great cases in regard to the power to supervise the fixing of charges for all services, subject to State legislation, have been based upon it.

Not even the commerce clause of the Constitution has, up to this time, been as productive of so much power in the Federal Government as the adoption of this amendment. Although it is a negative power, it nevertheless is an universal one. It is a Federal veto upon numberless efforts of States to exercise their sovereignty. Nor is it any the less a power, though in the keeping of nine men, and does not depend upon the exercise of the prerogatives of the legislative and executive departments of government.

This amendment, far from being used practically exclusively for the protection of the negro race, has rarely been invoked to his benefit. Almost every other class of citizenship has frequently called upon it for protection, and not in vain. Few, if any, sections of the Constitution have contributed as steadily and as constantly toward the curtailing of State authority and the consequent increase of Federal authority.

In the early case of Gibbons against Ogden, the power of the Federal Government under the Commerce Clause of the Constitution was at once established as of prime importance.

Within the past twenty-five or thirty years, centered around this particular clause, has been a greater growth of Federal power, as far as the legislative branch of the government is concerned, than around any other clause of the Constitution.

Whatever may have been the development of the power of the Judicial Department of the Federal Government under the XIV Amendment as elsewhere pointed out, certainly in respect to legislation, the growth of power under the Commerce Clause has equaled, if it has not surpassed it.

Under this clause has grown up the regulation of Railroads, through the various acts that created the Interstate Commerce Commission, and through the various acts that have increased the power of this commission.

By virtue of these powers, common carriers by rail and water, have been largely governed and controlled, and especially as to charges.

Not only has Congress prescribed in many instances the character of equipment, but has in other cases authorized the Commission to prescribe the same.

Quarantine laws have been passed both in reference to persons and animals, and the greatest strictness of regulation has been adopted in reference to the transportation of infected animals, or animals from infected districts.

The pure food laws have brought under the surveillance of the Federal Government, every abattoir and packing house in which meat is killed and prepared for shipment from one State to another. The lotteries have been uprooted by evoking this section, as well as the provision in regard to the mails.

The relations and liabilities of master and servants have been established, not only changing in many instances the basis of liability, but in every case coming under its provisions, supplanting the State regulations as to parties, beneficiaries, damages, and limitations of actions.

And finally has been enacted and interpreted the Sherman Act of 1890, out of which has grown not only much litigation, but many advanced applications of constitutional principles. This particular Act will be discussed more in detail later.

In the wake or train of these statutes and decisions, followed the Acts now pending in Congress, which are in such a stage of amendment and change as to make it impossible to satisfactorily discuss them; and the movement to have a national law in regard to child labor, so long urged by Senator Beveridge; and kindred subjects.

The gist of all of which is, that any person or corporation, that either devotes the entire product of its business or any part of it, to transactions interstate, is necessarily controlled in every detail of its business, by Federal enactments.

In other words, while the Federal Government cannot compel a manufacturer to comply with these or other regulations, will he, nil he, it can accomplish the same results by the declaration that unless these regulations have been complied with, no product of business can be the subject of an interstate transaction.

Whatever may have been the failure on the part of the Bar generally to appreciate just how complete was the power of the Federal Government over any person, corporation or business engaged in interstate commerce until the some more recent decisions, yet it is clear upon a review of the earlier cases that there never was any real room for misconception of the scope of that power.

Since the day when Chief Justice Marshall announced the opinion in the case of Gibbons vs. Ogden, it has been a wellestablished principle that when it was established that any business or undertaking was interstate commerce, the power of the Federal Government over this business was plenary. The

Chief Justice left no room for any addition to be made to the power by subsequent decisions, whenever it was determined that the transaction under consideration was interstate commerce.

This word "plenary" has been the basis for a great variety of legislative enactments in reference to the regulation, control and direction of the agencies of interstate commerce from that time until this.

But just when the transaction became a part of commerce, and therefore became subject to Federal regulation, has never been definitely determined by any case or line of cases.

However, it is perfectly clear to the student of these cases that there has never been any step backward, but, on the contrary, the disposition of the courts, and especially in more recent years, has been to bring within the definition of interstate commerce many transactions and relationships that prior to these particular decisions had been regarded, by a large part of the profession at least, as not within its definition. If the profession and the people at large were surprised at the great power that was declared by the Court in the case of Gibbons vs. Ogden to be in the Federal Government by reason of the commerce clause, certainly there has been greater room for surprise in the development of that clause in so far as the determination as to whether or not given cases fall within interstate commerce. During the past twenty years, particularly, there has been a great increase of Federal power by the extension of the definition to embrace subjects that were theretofore regarded as beyond its meaning. Let us follow for a moment a few cases that illustrate the truth of the statement just made. In the case of Kidd vs. Pearson, so well known to the profession, wherein the Court held that the manufacture of whiskey was not protected by the commerce clause of the Constitution from State regulation and abolition, notwithstanding the fact that all the product of the manufacture was intended for interstate commerce, Mr. Justice Lamar, in speaking for the Court, said:

"No distinction is more popular to the common mind, or more clearly expressed in economic and political literature, than that between manufacture and commerce. Manufacture is transformation, the fashioning of raw materials into