Mr. MARTIN. Not a band; there are isolated cases, but there has been a remarkable coincidence in their inactivity in this matter.

Senator CUMMINS. It is hardly believable that all our judges, and all our district attorneys, and all our Attorneys General, and all our Presidents have been in conspiracy to defeat the operation of this law during the 21 years that it has been in existence. It is hardly a fair conclusion, is it?

Mr. MARTIN. Senator, that is a very serious question and a very grave one, and I want to ask your permission to answer it as deliberately and as fairly as I can.

Senator CUMMINS. The time is yours, and the opportunity, Mr. Martin.

Mr. MARTIN. I do not charge, nor does the organization which I represent, that all these executive officers and courts, charged with the enforcement of the antitrust law during the last 20 years, have been in a conspiracy together. What we do charge and what we stand ready to prove to this committee, or to any other committee of Congress, is that the enormous wealth and power over the commerce and industries and politics of the United States by the conspiracies of great wealth who control these trusts has been so great, so insidious, and so far-reaching that no man to-day can tell how far it has gone in bending executive or judicial officers, by direct or indirect influences, in the direction they desire them to be bent. It is easier always, Senator, if you will pardon me, to prevent something from being done than it is to get it done. It is easier to defeat the passage of a bill than it is to pass one. It is a good deal easier to prevent the enforcement of a law than to get it enforced, and when you consider the enormous discipline and powers of these great trust conspiracies that have been erected in every great industry in the United States and which dominate the railroads and the banks and the coal mines as well as the manufacturing and merchandising industries-when you consider their enormous extent and the cunning and the power with which they have been directed, it is no wonder at times that they have been able to resist, by one means or another, the enforcement of the law. That is what we charge, and what we ask of Congress is that it now rise and exercise its great supervisory power over the executive and judicial branches of the Government and see to it that when these officials do not enforce the law that their conduct is inquired into and adequate steps taken to deal with the situation.

Senator CUMMINS. You understand, Mr. Martin, that the power of impeachment lies solely with the House of Representatives. This committee is composed of men who would be judges

Mr. MARTIN. Exactly. I appreciate that.

Senator CUMMINS. If any impeachment proceedings were insti tuted. So I think we might leave that phase of it out of considera. tion.

Mr. MARTIN. I was speaking not so much of impeachment as of inquiry; turning on the light sometimes will put a stop to things. 1 will give an illustration of that that I have in hand. The House committee to investigate the Steel Trust and the Coal Trust and the Railroad Trust, known as the Stanley committee, did not have any power, and did not exercise any power to impeach anybody, but the mere turning on the light of investigation has caused, in a very few months, a saving to the people of the United States by checking the

operations of the Steel Trust, and the partial restoration of competition in the industry will save the people of the United States $25,000,000 on the cost of their steel this year, and probably for all years to come. It is difficult to ever restore that again, and the continuance of it will probably more than double that amount in saving the cost of steel to the people of the United States; the mere turning on of the light of investigation, helping to break up the combination. So this committee is doing a very beneficent work in inquiring. When I referred to that I did not mean to refer solely to the impeachment question, but the supervisory duty of Congress to look over those concerns and their expenditures and their conduct.

Senator CUMMINS. I think we are all aware of the power of associated wealth in all its forms, but what I want to ask you is whether the law ought not to be so changed in its terms that men could not refuse to enforce it, or fail to enforce it without at once incurring public criticism. Is it not possible where the law is so uncertain and vague in its phraseology, that it affords the opportunity for public officials to reach different conclusions with respect to a given subject and thereby escape that criticism which always falls upon an official if he fails to enforce a law, clear, plain, and specific in its terms?

Mr. MARTIN. I do not think so. I think the law is very clear, very simple, and very plain, and I agree entirely with the expression of President Taft in his Chicago speech, that a jury in a few minutes can tell when these men are brought before them whether they are violating the law or not.

Senator CUMMINS. The law has been enforced in the American Tobacco, and the decree of the Supreme Court has been entered, and under that decree the American Tobacco Co. has been reorganized into four separate companies. Are you familiar with the terms of the reorganization?

Mr. MARTIN. The decree was only handed down yesterday, and I have not seen it published in any paper as yet, so I do not know about it. I have talked it over with the Attorney General and with the Assistant Attorney General, Mr McReynolds, of New York, and I listened for the trial of the case in New York and have examined the brief of the other parties; and Mr. Schulteis, the counsel of the Antitrust League, under my direction, filed a protest in opposition to the proposed plan, which we feared was going to be embodied in the decree of the circuit court, and we were very much opposed to the ideas set forth in the plan formulated by the attorneys of the American Tobacco Co., because we feared that the adoption of that plan would be equivalent to the creation of four trusts where one now exists, and that those four trusts would be controlled by the same criminal common-stock owners who controlled the old trust; and I think we were right about that, and we propose as an organization to resist that action of the court in New York to the last extremity, and we propose and believe that we can absolutely overthrow it by perfectly legal and proper means, and we may call on the Senate to assist us in that operation.

Senator CUMMINS. However that may be, the Circuit Court of the United States has approved that reorganization as being in harmony with the antitrust law which separates the American Tobacco Co. into four corporations. That is true, is it not?

Mr. MARTIN. Yes, sir; the court has done that.

Senator CUMMINS. The court has done that. Now, do you believe that there will be any more competition between the four companies into which this great concern has been divided than there was before? Mr. MARTIN. Very little, if any, and therefore we resist the decree. Senator CUMMINS. If that sort of an arrangement is an arrangement in harmony with the antitrust law, as it is now, would you still be of the opinion that the antitrust law should not be amended?

Mr. MARTIN. But we believe it is not in harmony with the law, and that the court is acting in defiance of the law.

Senator CUMMINS. As against your judgment there is the judgment of the circuit court of the United States.

Mr. MARTIN. And on my side is the judgment of the Supreme Court of the United States.

Senator CUMMINS. The Supreme Court has not passed upon that question as yet, I am told.

Mr. MARTIN. In so far as they have passed on it in their original decree, we take the exactly opposite stand from the circuit court in New York.

Senator CUMMINS. And I understand by this morning's papers that the Government has decided not to appeal from the order of the circuit court approving this form of reorganization, because the Attorney General's office believes that it is in harmony with the antitrust law. Did you notice that in this morning's paper?

Mr. MARTIN. I did. The Attorney General made that statement

to me.

Senator CUMMINS. If it were to turn out to be the proper construction of the antitrust law that such organization can be carried on under it, would you still be of the opinion that the antitrust law should not be strengthened and made a little more effective in suppressing trusts and preserving competition?

Mr. MARTIN. That is a bridge which we will cross when we get to it, with the fight on the Tobacco Trust, which is not ended yet by any means. We propose to call on Congress, if necessary, to aid us to overthrow that decision, and it is within the power of Congress to do that.

Senator CUMMINS. That is just what this committee is occupied in doing, ascertaining whether such results can be accomplished under the antitrust law.

Mr. MARTIN. Such results as what?

Senator CUMMINS. I do not believe that the antitrust law will preserve competition. I am in favor of competition, but I do not believe the law will maintain it, and therefore I think it ought to be amended. But you are of the opinion that, notwithstanding these results may follow, we ought not to touch or amend the antitrust law in any way whatever.

Mr. MARTIN. That, Senator, I do not concede for a moment-that the results indicated by you and indicated in the opinion of the circuit court of New York will follow under a proper activity on the part of the Department of Justice, the President, and the Congress. Where a court departs so far from the proper and clear-cut application of the antitrust law as the circuit court of New York, certainly it ought not to be allowed to be connected with the matter any more. The other departments of the Government, especially the department

of commerce, has supervisory power, but when the court pursues such a course as that it ought to be universally condemned by the people of the United States as a failure of justice, and which is really condemned by the language of the court.

Senator CUMMINS. You say we have a supervisory power over the courts. What do you mean by that?

Mr. MARTIN. I mean it in the broadest sense, Senator, that the Circuit Court of the Southern District of New York is created by an act of Congress; the salaries of those men are paid by the appropriations of Congress. Their duties are prescribed by act of Congress, and they can be impeached by Congress for improper conduct, and there are many ways in which Congress may exercise its supervisory power, and which I shall not take time now to enumerate. I remember when that same court tried to prevent it. It was within their jurisdiction, and an officer of that court and an officer of the Department of Justice were trying to prevent the institution of the suit against the Joint Traffic Association-one of the greatest victories that was ever won under the antitrust law for the people and against the trust-and it became necessary for this committee of the Senate to bring the district attorney from New York over here and get after him before he could be forced to institute the proceedings.

Senator CUMMINS. But, Mr. Martin, the district attorney is part of the executive force of the Government.

Mr. MARTIN. Exactly.

Senator CUMMINS. And of course he is under the direction of Congress in a certain sense, but you do not mean to assert that he can change or rescind a judgment of a court having jurisdiction over the case in which a judgment is rendered, do you?

Mr. MARTIN. Practically; I am so advised by eminent counsel. Senator CUMMINS. Suppose you did appeal for a decision from the circuit court in New York to the Supreme Court, and the Supreme Court affirmed that decree, and the tobacco business is carried along under the reorganization that has now been affected, would you then adhere to your opinion that the antitrust law did not need to be amended in any way?

Mr. MARTIN. We do not propose to wait for that condition. We propose to meet the enemy at the gate and attack this decree the moment it is issued in New York and before it gets to the Supreme Court.

Senator CUMMINS. Attack it how?

Mr. MARTIN. The details of that are in the hands of our attorney. I am not a lawyer and I do not know that I am qualified to go into the details, but Mr. Schulteis, our counsel, thinks there are ample remedies for the prevention of that scheme.

Senator CUMMINS. Assume that that is the law and such a thing is possible under the antitrust law as it is, then you will agree, will you not, that there is some need of change?

Mr. MARTIN. Yes; if I found that the law was an absolute failure and it aided in the creation of trusts rather than the destruction of them, I should, certainly; but I am absolutely sure that that is not the purpose or the effect of the enforcement of the antitrust law. Senator CUMMINS. That has been the effect of it in this particular case.

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Mr. MARTIN. But this case has not been completed yet. The only trouble is the perversion of the law by the circuit court of New York. That court showed in its first decision on this tobacco case, and I think in one of the railroad cases, that the presiding judge, Lacomb, and the others were absolutely out of sympathy with the purposes of the antitrust law; that if they had their way there would not be any such thing. They said it was an unreasonable statute; it was an absurd statute, in essence-I am not quoting the exact language, but they instanced cases where, if the antitrust law were enforced it would prevent two little expressmen who were running a one-horse express in competition across the State line between two villages; if they joined together their business they would be liable to imprisonment and fined $1,000 each. That was to make the law ridiculous, and it was the intent and purpose of that court beyond any question-and I say it frankly because it is a very grave matter, that a law enacted for the relief of 93,000,000 people should be perverted from its purpose by the twisted mind of any judge who would fail to look it squarely in the face is improper.

Senator CUMMINS. It seems to have been the twisted minds of four judges.

Mr. MARTIN. Well, that is not many when you consider the balance of the judiciary; they are not very numerous.

Senator CUMMINS. Then your position that we ought not to attempt to strengthen the antitrust law in any way is upon the assumption that the decision in the American Tobacco Co. case will not stand, but will ultimately be reversed by some process of law.

Mr. MARTIN. That is only one of a dozen reasons why we oppose the amendment of the law at this time.

There is another very potent reason, and that is that we are advised by the able counsel, and by some of the most eminent legal authorities in the United States, including eminent Senators and members of the Judiciary Committee, that the adoption of any amendment to the antitrust law at this time would open the law to new litigation and new interpretation and a long series of trials and delays before the meaning of the law could be settled again. Now, the law is pretty well settled and established, but

Senator CUMMINS. It is well settled, you say?

Mr. MARTIN. That is the advice of our legal friends, both in the Senate and House and outside.

Senator CUMMINS. But the history of the Beef Trust that is now going on in Chicago seems to indicate that it is not well settled. They have been trying to prosecute the Beef Trust there for 10 or 12 years, and the law seems to be so uncertain that they have not yet been able to bring to trial, or take the judgment of a jury or court upon any material question in the matter.

Mr. MARTIN. I think most of the people in this country have a pretty clear idea as to why that situation exists, and it is mainly because there has never been any real thorough-going effort to bring that matter to a trial. The United States attorney in the court yesterday rebuked the judge to his face for rendering an improvident decision, and I think the district attorney was justified in so doing. I think where judges go to the point where they do things for which their own subordinate officers and their own courts can rebuke them