entertain no hope for unified action on the part of the states, by which, alone, this situation could be relieved. The report of the American Bar Association for 1906 states flatly, in reference to a uniform incorporation law, that the voluntary coöperation and concerted action by the states is not to be expected. And if this were undertaken, so long as a single state held out, we should be in the same deplorable situation still. Admittedly, then, we cannot look to the system of state incorporation for the removal of the evils which are inherent in it, this system of which Commissioner Garfield says that its diversity is such that in operation it amounts to anarchy. The inference is irrefutable, ladies and gentlemen, that we must look to some other system for relief. And as my colleagues who follow me will show, that system is National Incorporation.

After presenting such introductory matters as the proposition demands, the opening speaker should take up the first issue and endeavor to make definite progress with the case of the affirmative. He should show the relation of his work to the work of the other speakers on his side; and he should make clear just what he understands to be the bearing of his argument on the negative side, and what, consequently, his opponents must do to meet the contentions of the affirmative.

A complete opening speech which embodies all these essentials is found on the negative of the debate in Appendix VIII; and a complete opening speech which fails to present these essentials is found on the affirmative of the same debate.

The First Speech for the Negative.—The first requisite of the opening speech for the negative is adaptation to the preceding speech. It is this which distinguishes a debate from a contest of memorized declamations. The speaker must make clear to what extent he accepts the work in analysis presented by the affirmative. If he

does not agree with the interpretation of the proposition and the issues, as set forth, he must give satisfactory reasons for differing. To the affirmative belong the duty and right of interpretation. Unsupported objections on the part of the negative count for nothing.

The Cornell-Pennsylvania debate of 1908 furnished an illustration of a successful opening speech for the negative side. The proposition was, "Resolved, that aside from the question of amending the Constitution, it is desirable that the regulating power of Congress should be extended to all corporations whose capitalization exceeds $1,000,000."

We are here to discuss one single, specific proposition; namely, the plan just brought forward by the affirmative. We are just as desirous as the affirmative can be of remedying present conditions; but we question seriously whether the sweeping extension of Federal power advocated by the affirmative is either necessary or desirable. To appreciate fully how sweeping in character is this remarkable proposal, let us see what regulating power includes.

This is a term used in the Constitution to define the power of Congress over interstate commerce. Its extent has been passed upon by the Supreme Court in a score of cases; and its meaning is therefore to-day not open to the slightest doubt. It includes the power to foster, to encourage, to restrict, to destroy, limited only by the discretion of the regulating agency. Not only is it sweeping, but it is exclusive. The Supreme Court cases distinctly hold that a grant of power to Congress excludes all regulation by the states in that field. The power to regulate extends from the most general operations to the minutest details, and is limited only by the discretion of the regulating agency.

What, then, would this extension of Federal powers advanced by the affirmative mean? It would mean, in the first place, a radical departure from all our present ideas concerning the relation between the states and the Federal govern

ment. At present the Federal governmircises a general

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CIRCULATION DEPARTMENT

control over affairs of national scope only, and distinctly leaves to the states control absolute control over matters of purely local extent; but this remarkable plan brought forward by the affirmative would include all corporations without regard to the nature of the business, without regard to the scope and extent of the corporation, and without regard to the power of the states to regulate that corporation. Why, among the corporations that would be affected by this act, some 800, according to Moody's "Corporation Manual," would be either local public service corporations or corporations which operate only in a single state; that is, it would include light companies and water companies and street railway companies. Over 230 street railway companies would be brought under Federal control by this affirmative proposal. Now, these are neither of national scope nor of national concern. If the Federal principle is to be maintained, a corporation which operates only in a single state, no matter whether it is capitalized at $1,000,000 or $10,000,000, should be controlled only by the state in which it operates. The mere number of shares of stock a corporation issues is not what makes it a problem of national concern. Yet, the affirmative must justify this as a line of demarcation between state and Federal authority.

But perhaps the affirmative would justify this plan on the ground of present lack of uniformity in state laws. They say the state laws are so diverse that the states are powerless to control the corporations at present because of lack of uniformity; but I ask you, is lack of uniformity an evil? Is it established that uniformity in state laws would be desirable? There is no uniformity in nature, in resources, in industry, in development. This is a broad country; the needs of Nevada are not the needs of Massachusetts; the interests of the Dakotas are not the interests of Florida; the corporations of these states are as varied as their climates. Yet the remarkable proposal of the affirmative would apply to the cotton mills of Georgia the same general laws of regulation as they would apply to the irrigation companies of Wyoming.

I ask the gentlemen of the affirmative: is not this plan they propose revolution rather than evolution? Is not the principle

of American development to try existing powers to their full extent, to proceed slowly, step by step, rather than by one sudden sweeping away of all the corporation laws which are the result of our experience? What is there leading up to this plan? What is the evolution that has preceded it? Have we had any assurance from our past that the Federal government would be an efficient agency for the control of corporations ? Moreover, have we the present knowledge which entitles us to attempt at this time to solve once for all this great, mighty corporation problem? The problem is comparatively recent. Men have but lately begun to study it, and they disagree even as to the most general principles. Why, for instance, Massachusetts a few years ago, in an effort to cure overcapitalization (which the affirmative has complained of) by mere legislative tinkering, passed a law prohibiting the capitalizing of anything except tangible assets. Last winter Massachusetts repealed that law, finding it did absolutely no good, but was productive on the other hand of positive harm to industry and legitimate enterprise. Opinions that men held firmly five years ago, they doubted two years ago and to-day have abandoned. Do we know definitely what we want? Are we sure that the legislation we would enact to-day we would not be ready to repeal to-morrow? Moreover, who is in favor of this remarkable plan brought forward by the affirmative? Who is urging it? What economist, what statesman, would classify corporations - or rather fail to classify- according to the number of shares of stock they issue rather than the nature and scope of the business? In all the discussions before Congress last winter upon this problem, did any one advocate this particular solution? Almost any plan, however wild, will receive for a time a certain degree of support. Did any one of the experts gathered before the Industrial Commission advocate this particular plan? Silence places on the affirmative a strong burden.

The whole plan of the affirmative is characterized by an undue faith in legislative tinkering as a cure for all conceivable ills. They propose a mere legal device, a mere shifting from one regulating agency to another, and expect the whole corporation problem to be solved. This problem

is comparatively new, but they say if one regulating agency has not solved this problem in a few years - a new problem why, try at once another agency; that is, if a bottle of Kennedy's Burdock Bitters does n't cure at once, try a bottle of Warner's Golden Discovery!

Do not the affirmative fail to consider that the abuses they complain of result not so much from lack of laws and lack of existing powers, as from lack of enforcement of existing laws and the inherent difficulties of the problem? How, for instance, would the affirmative cure the overcapitalization they complain of by mere legislative action? Will mere laws reform the morals of directors? Will mere legislation cure the speculative tendency on the part of the public? What would the affirmative do? We ask them to be specific. Would they have Congress a body already worked to the limit - regulate the heating of street cars in Portland, Oregon; or would they operate through bureaus and have a bureaucracy, — a commission for the regulation of water works and a board for the heating of street cars? Have we any reason to believe that Congress is more responsive to public opinion than are the state legislatures? Will Congress provide better legal machinery for the enforcement of its laws? Are Federal laws harder to evade than state laws?

Ladies and gentlemen, the proper spirit in which to approach this mighty question is in a spirit of conservatism. Is it not better for us to try out existing powers to the limit, - to proceed slowly, step by step, rather than to fly from one regulating agency to another and experiment with evils whose force we do not appreciate? Remember, that the conspicuous errors in our history were the result of cases where we took abrupt and quick steps without a slow process of evolution. It is better to proceed carefully, to gather all knowledge on this important subject, rather than to accept a sweeping proposition unprecedented in our history, evolving out of nothing and unsupported by authority or experience.

If the affirmative speaker has failed to analyze the proposition and set forth the issues, the negative speaker must supply the deficiency. In the debate which is