merce Act, authorizing the circuit courts of the United States to use their process in aid of inquiries before the Commission established by that act, is not in conflict with the Constitution of the United States." This decision alone was probably sufficient to enable the Commission to secure the necessary evidence, but the Brown case1 covered all the essential features of the Counselman, James, and Brimson cases combined, and effectually removed the last difficulties in the way of securing for the Commission the testimony of recalcitrant witnesses. Brown was a railway official who refused to answer the questions put to him by the Commission, on the ground that such testimony might incriminate himself. On this point the Supreme Court said that the clause upon which Brown relied should be construed "to effect a practical and beneficent purpose-not necessarily to protect witnesses against every possible detriment which might happen to them from their testimony"; and, commenting upon the possible disgrace which might come to a witness who discloses criminal acts, the court further said: "The fact that the testimony may tend to degrade the witness in public estimation does not exempt him from the duty of disclosure. A person who commits a criminal act is bound to contemplate the consequences of exposure to his good name and reputation, and ought not to call upon the courts to protect that which he has himself

1 161 U. S. 591.

esteemed to be of such little value. The safety and welfare of an entire community should not be put into the scale against the reputation of a selfconfessed criminal. . . . The design of the constitutional privilege is not to aid the witness in vindicating his character, but to protect him against being compelled to furnish evidence to convict him of a criminal charge." Since this decision, in 1896, the power of the Commission to secure testimony may be regarded as full and adequate; but in all seriousness the query must be added: What is there to prevent an unscrupulous railway official from violating the Interstate Commerce Law in the most flagrant manner, and then testifying with the view of securing personal exemption from the penal provisions of the act?

Indirectly connected with the subject-matter of the preceding paragraph stands the question of the weight given by the courts to the findings of fact by the Commission. Section XIV of the act provides that the findings of the Commission shall be deemed prima facie evidence in all judicial proceedings as to each and every fact found; yet it is well known that when cases reach the courts new testimony may be admitted and the entire case perhaps be tried de novo,1 so that the case before the courts is entirely different from that before the Commission. In the Import Rate case 2 the Supreme Court incidentally touched upon the treatment of cases brought in the courts to en

137 Fed. Rep. 567; 94 Fed. Rep. 272.

2 162 U. S. 197.

force the orders of the Commission as follows: "The questions whether certain charges were reasonable or otherwise, whether certain discriminations were due or undue, were questions of fact, to be passed upon by the Commission in the light of all facts duly alleged and supported by competent evidence, and it did not comport with the true scheme of the statute that the Circuit Court of appeals should undertake, of its own motion, to find and pass upon such questions of fact in a case in the position in which the present one was ..; yet, as the act provides that, on such hearing, the findings of fact in the report of said Commission shall be prima facie evidence of the matters therein stated, we think it plain that if, in such a case, the Commission has failed in its proceedings to give notice to the alleged offender, or has unduly restricted its inquiries upon a mistaken view of the law, the court ought not to accept the findings of the Commission as a legal basis for its own action, but should either inquire into the facts on its own account, or send the case back to the Commission to be lawfully proceeded in."

Agreements and Contracts among Competing Railways. That the effect of the anti-pooling provisions of the Interstate Commerce Act has been the exact opposite of what was intended, has for years been a matter of public knowledge. The effort to prevent by law agreements among competing railways has resulted in consolidation - a form of combined effort much more effective and

lasting in its consequences than any pooling arrangement could ever have been. The union of separate and formerly competing companies into one larger, compact, and firmly organized corporation is something with which the federal law has never been concerned; but the looser and usually more temporary agreements among railways are by the statute expressly declared unlawful. In addition, the law contemplates stability of rates, relatively just rates and other like ends, which depend upon coöperation. At the present time the larger competitive systems of the United States number about twenty, while at the time of the enactment of the Interstate Commerce Act there were more than five times that number.1 That this has been the universal history of railway competition is a fact too familiar to require elabo`ration in this place. "When we view the facts of railway history, the steady and uninterrupted consolidations which have absorbed line after line, on the one hand; and the contemporary existence and growth and duplication of laws attempting to govern these, on the other, the conclusion is irresistible that somehow these laws did not accomplish the purposes for which they were enacted." 2

The first important decision of the United States Supreme Court, after 1887, bearing upon agreements among railways was the decision against the Trans-Missouri Freight Association in 1897. This

1 Consult Newcomb, "Recent Great Railway Combinations," Review of Reviews, August, 1901. 2 p. 139.

association had been formed in 1889 "for the purpose of mutual protection by establishing and maintaining reasonable rates, rules, and regulations on all freight traffic, both through and local." The decision involved two leading questions: first, Does the "act to protect trade and commerce against unlawful restraints and combinations," popularly known as the Sherman Anti-Trust Law of 1890, apply to and cover railways? Second, If so, does the Trans-Missouri agreement violate any provisions of this law? The court answered both questions in the affirmative.

The Joint Traffic decision, which followed a year and a half later and covered essentially the same ground, involved in addition several subsidiary questions: Does the Joint Traffic agreement actually prevent the constituent railways from competing with one another? Is the Anti-Trust Law constitutional? And, finally, does the Joint Traffic agreement violate the anti-pooling provisions of the Interstate Commerce Law? As to the leading questions, the court held that the AntiTrust Law applies to all combinations, including those among common carriers. Combinations "may be different in different kinds of corporations, and yet they all have an essential similarity, and have been induced by motives of individual or corporate aggrandizement as against the public interest." The decision recounts the history of the Anti-Trust Act in Congress, which goes to show that the act 1 171 U. S. 505.