municipal monopolies, which have stood the test of an appeal to constitutional limitations. These are the postal department of the general government, and the liquor monopoly which has in recent years been established in South Carolina under the so-called dispensary law. There are, in addition to these, a number of canals which are owned and operated by state governments, and a treaty has just been ratified by the Senate of the United States, which provides for the acquisition and management by the United States of a ship canal across the Isthmus of Panama, and the incidental ownership or control of the Panama Railroad.

The right of the national government to establish the post-office and to provide for the transmission of the mail as an exclusive government monopoly could not in any event have been questioned, for the Constitution of the United States contains an express authorization of such a national monopoly; but, apart from this express authorization, the universality of this government monopoly would have probably been considered by the United States courts a complete answer to any constitutional objection which might have been raised, in accordance with the constitutional rule of construction which the United States Supreme Court adopted in the legal-tender case of Juillard v. Greenman.1 In this case the court held that the national government may exercise any power which was commonly recognized by the civilized world as a function of government. The governments of Europe have very generally assumed the ownership and management of railroads and telegraph and telephone plants. And it would seem that this principle of constitutional construction could be more confidently relied upon to justify government ownership of railroads and other common means of intercommunication, than it would appear to have been in the case in which it was first enunciated.

But while this has not as yet become a practical question in this country, although I confidently believe it will be before the present century has waxed very old, we are not left altogether to conjecture what the answer of the Supreme Court of the United States would be to the constitutional objection to an act of Congress providing for the establishment of the railroads and telegraph lines as government monopolies. For some years ago that court declared2 that the

1 110 U. S. 421.

2 Pensacola, etc., R. R. Co. v. Western Union Tel. Co., 96 U. S. 1.

power was implied, in the grant by the national constitution of the power to establish post-roads, to make government monopolies of the railroad and the telegraph, and to appropriate to its use the existing lines, in the exercise of the right of eminent domain. This was, of course, only a dictum, but it may be taken as a very reliable indication of what the decision of that court will be, whenever the direct question is brought before it for final determination.1

But, independently of this construction of the express grant of power to the national government to establish post-roads, I feel confident that the courts would not find it either unreasonable or fantastical to hold that ownership of public utilities is an implied power of the government; implied from the fact that in no other way can the public needs be satisfied, without the violation of the fundamental principles of American constitutional law which are involved in the constitutional guaranties of equal privileges and immunities, and of equality before the law. I can see no escape from the conclusion that these constitutional guaranties are most signally violated when the governments, national and state, grant to private capitalists the complete control of all of the means of intercourse and intercommunication between the people, even though the attempt is made to minimize the economic effect of this government policy by the regulation of these quasi-public corporations through the instrumentality of national and state commissions.

Two points in constitutional law bearing upon the subject of my thesis, I have endeavored to establish: first, that the grant of any more or less exclusive or special franchise to a private corporation or individual is a violation of the constitutional guaranty of equal privileges and immunities; and, secondly, that there is no constitutional prohibition of the establishment as government monopolies of any business or enterprise which private capitalists cannot undertake without the legislative grant of such a special or exclusive franchise.

The principle of constitutional law which I have advocated in this paper need not be confined in its application to the indispensable arteries of the social organism, such as railroads, bridges, tunnels, the telegraph and telephone, etc. The principle seems to me to be applicable to the governmental control of any of the natural

1 A similar dictum is to be found in State of California v. Central Pac. R. R. Co., 127 U. S. I.

deposits of the earth, such as coal and iron, or the forests. If the legislature of Pennsylvania, in obedience to an overwhelming popular demand, were to provide for the confiscation of the coal mines in that state, in the exercise of the right of eminent domain, and the control and management of them as government property, the courts would not very likely interpose any constitutional objection. This, of course, is a rather academic application of the principle for which I have been contending. In all human probability coal, iron, and other mines will continue indefinitely to be the private property of individuals. For the mine-owners have learned from their recent struggle with the mine-workers' union that they are not omnipotent; and they will be more willing in the future to come to terms with their adversary.

This leads me to the concluding thought in advocacy of government ownership of public utilities. The railroads, telegraph lines, and other means of communication and transportation must be continuous and reliable in their operation, in order that they may prove efficient in the satisfaction of the growing demands of civilized life. Any interruption of their operation by the disputes of the private companies which control them with their employees over wages and terms of hiring, resulting in a strike, interferes with the orderly prosecution of business in a way that the strike in a strictly private business cannot do beyond that particular business. Whatever serious doubts may be entertained concerning the political propriety of such government monopolies, in these days of labor agitation and gigantic railroad and telegraph combinations, when a strike of railroad and telegraph employees may extend over the whole country, stop the wheels of commerce, and produce a widespread commercial paralysis as long as the strike continues, public opinion may not, after a thoughtful consideration of this constant menace to the public welfare, reject the proposition to convert the railroads and telegraph lines into government monopolies.

It is true that, under the theory which was incorporated into our law by the decision in the case of Munn v. Illinois1 and in the Granger cases that railroads and telegraphs are businesses which are affected with a public interest, and therefore they may be subjected to whatever reasonable regulations may be apparently necessary to promote the public welfare-government intervention for the settlement of strikes and labor disputes between these corporations and their employees would doubtless be justified.

1 94 U. S. 136.

Nevertheless, this practical suggestion seems to be pertinent, that, while compulsory arbitration under such circumstances would successfully suppress a strike after it had been ordered by the labor leaders, the facility which that procedure would afford for the constant redress of labor grievances, real and imaginary, would tend to increase rather than to diminish the number of strikes, although they may by such procedure be limited to the initial stages, and their duration curtailed. Furthermore, under such a regime, the government officials who would be charged with the settlement of these labor controversies would become the real managers of the torps of employees, without being made responsible for the successful management of the business. It is an axiomatic truth that any business is exposed to serious danger when power is separated from responsibility. The only consistent and safe policy, if the government is to interfere so actively and extensively in the management of the railroads and telegraphs as this plan of compulsory arbitration would involve, is the conversion of the railroads and telegraphs into government monopolies, so that power and responsibility shall not be divided or separated.

Again, if these important and indispensable agencies of commerce were government monopolies, all of their employees would become, as they are on the continent of Europe, and as the postal clerks are in this country and elsewhere, government employees. Strikes of government employees very rarely occur; and, so far as I know, the United States postal authorities have never had to contend with a strike of their clerks and other employees. Apart from the fear of the power of the government to force them to submission, which undoubtedly would in a measure restrain them from striking, even when the provocation was great, government employees are more readily satisfied with the same wage and the same terms of service. The socialistic antipathy which is now so prevalent to the appropriation by private capitalists of any of the profits of labor, as labor agitators estimate and describe them, and which is so powerful a lever for the creation of discontent in the case of private employment, would then be absent, inasmuch as the profits of the business of railroads, telegraphs, electric and gas-light plants, etc., would then be taken by the government for the benefit of the whole people.

BUFFALO, N. Y.

Christopher G. Tiedeman.

AN

CRIMINAL ATTEMPTS.

N attempt to commit any crime, treason, felony, or misdemeanor, is itself criminal, though the attempt fails.1 The attempt is not criminal per se, that is, the act of attempt is not in itself harmful to the state. The crime is a mere shadow of the attempted offense, deriving its criminal nature entirely from the substantive offense to which it is subsidiary. It has, nevertheless, the qualities and characteristics of other crimes. It consists of a criminal act done with criminal intent, and the act includes not merely a physical act, but also a specific intent.

As in the case of other crimes, one cannot be punished for a criminal attempt unless at the time of committing the offense he had the guilty mind, the mens rea; but this requirement usually causes no difficulty, for the intent to commit the crime attempted will, save in an exceptional case, amount to a guilty mind. In addition to the general requirement of mens rea, the crime of attempt also necessarily involves a specific intent, the intent to accomplish the crime attempted. One cannot attempt or try 2 to do an act without the intent to do the act. The specific intent

1 Anon., Russ. & Ry. 107; R. v. Butler, 6 C. & P. 368; R. v. Roderick, 7 C. & P. 795; P. v. Burns, 69 Pac. Rep. 16 (Cal.); In re Lloyd, 51 Kan. 501, 33 Pac. Rep. 307; S. v. Jackson, 73 Me. 91, 40 Am. Rep. 342; C. v. Tolman, 149 Mass. 229, 21 N. E. Rep. 377; Smith v. C., 54 Pa. St. 209 (semble); C. v. Jones, 22 Pitts. Leg. J. 55; S. v. Maner, 2 Hill (S. C.) 453; Nicholson v. S., 9 Baxt. 258; C. v. Chapman, 1 Va. Cas. 138. In Tennessee this appears to be confined to attempts to commit felonies: Whitesides v. S., 11 Lea 474.

In jurisdictions where "the common law of crime has been abolished," i. e. where nothing is an offense unless made so by statute, an attempt to commit a certain crime may not be criminal because of the failure of any statute to declare it so. In re Guayde, 112 Fed. Rep. 415; Kinningham v. S., 120 Ind. 322. See the peculiar doctrine of Wisconsin: S. v. Goodrich, 84 Wis. 359, 54 N. W. Rep. 577; S. v. Lewis, 113 Wis. 391, 89 N. W. Rep. 143.

It may be doubted whether this general statement is not a little too broad. An attempt to commit a mere simple assault without battery would probably be regarded as of too slight consequence for punishment. This is certainly true where assault is defined by statute as an attempt to commit a battery (Wilson v. S., 53 Ga. 205; White v. S. 22 Tex. 608), since an attempt to attempt is not a crime. Wilson v. S., 53 Ga. 205; Patrick v. P., 132 Ill. 529, 24 N. E. Rep. 619; S. v. Sales, 2 Nev. 268; S. v. Baller, 26 W. Va. 90, 53 Am. Rep. 66.

2 These terms are synonymous Lewis v. S., 35 Ala. 380; Bordeaux v. Davis, 58 Ala. 611.