The reformers, however, did not give up hope, for they were sufficiently strong to compel the respect of the Democrats, and the latter, by their insistence on a reform that cost them nothing, forced the Republicans to give the merit system some prominence in their campaign promises. But practical politicians in both parties had small esteem for a plan that would take away the incentive to work for victory on the part of their followers. It was scornfully called "snivel service" and "goody-goody reform"; and the old practices of distributing offices to henchmen and raising campaign funds by heavy assessments on officeholders were continued.
Never was the spoils system more odious than when the assassination of Garfield by a disappointed office hunter startled the country from its apathy. Within a year, a Senate committee had reported favorably on a civil service reform bill. It declared that the President had to wear his life out giving audiences to throngs of beggars who besieged the executive mansion, and that the spectacle of the chief magistrate of the nation dispensing patronage to "a hungry, clamorous, crowding, and jostling multitude" was humiliating to the patriotic citizen. And with the Congressman the system "is ever present. When he awakes in the morning it is at his door, and when he retires at night it haunts his chamber. It goes before him, it follows after him, and it meets him on the way." The only relief, concluded the report, was to be found in a thoroughgoing merit system of appointing civil servants.
At length in 1883 Congress passed the civil service act authorizing, but not commanding, the President to appoint a commission and extend the merit system to certain Federal offices. The commission was to be composed of three members, not more than two of the same party, appointed by the President and Senate, and was charged with the duty of aiding the President, at his request, in preparing suitable rules for competitive examinations designed to test the fitness of applicants for offices in the public service, already classified or to be classified by executive order or by further legislation. The act itself brought a few offices under the merit system, but it left the extension of the principle largely to the discretion of the President. When the law went into force, it applied only to about 14,000 positions, but it was steadily extended, particularly by retiring Presidents anxious to secure the jobs already held by their partisans or to improve the efficiency of the service. Neither Cleveland nor Harrison enforced the law to the satisfaction of the reformers, for the pressure of the office seekers, particularly under Cleveland's first administration, was almost irresistible.
Railway and Trust Regulation
In the beginning of the railway era in the United States, Congress made no attempt to devise a far-sighted plan of public control, but negligently devoted its attention to granting generous favors to railways. It was not until the stock-watering, high-financing, discriminations and rebates had disgraced the country that Congress was moved to act. It is true that President Grant in his message of 1872 recommended, and a Senate committee approved, a comprehensive plan for regulating railways, but there was no practical outcome. The railway interests were too strong in Congress to permit the enactment of any drastic regulatory laws. But at length the Granger movement, which had produced during the seventies so much railway regulation in the States,[30] appeared in Congress, and stirred by a long report by a Senate committee enumerating a terrifying list of abuses against shippers particularly, Congress passed, in 1887, the first important interstate commerce law.
This act was a timid, halting measure, and the Supreme Court almost immediately sheared away its effectiveness by decisions in favor of the railway companies. The law created a commission of five members empowered to investigate the operations of common carriers and order those who violated the law to desist. The act itself forbade discriminations in rates, pooling traffic, and the charging of more for "short" than "long hauls" over the same line, except under special circumstances. In spite of the good intentions of the commission, the law was practically a dead letter. According to a careful scholar, Professor Davis R. Dewey, "By 1890 the practice of cut rates to favored shippers and cities was all but universal at the West; passes were generally issued; rebates were charged up to maintenance of way account; special privileges of yardage, loading, and cartage were granted; freight was underbilled or carried under a wrong classification and secret notification of intended reduction of rates was made to favored shippers.... The ingenuity of officials in breaking the spirit of the law knew no limit, and is a discouraging commentary on the dishonesty which had penetrated into the heart of business enterprise."[31]
The critics of railway policy who were able to force the passage of the interstate commerce act usually coupled the denunciation of the industrial monopolies with their attacks on common carriers; and, three years after the establishment of the interstate commerce commission, Congress, feeling that some kind of action was demanded by the political situation, passed the Sherman anti-trust law of 1890. There was no consensus of opinion among the political leaders as to the significance of the trust. Blaine declared that "trusts were largely a private affair with which neither the President nor any private citizen had any particular right to interfere." Speaker Reed dismissed the subject by announcing that he had heard "more idiotic raving, more pestiferous rant, on that subject than on all others put together." Judge Cooley, on seeing "the utterly heartless manner in which the trusts sometimes have closed many factories and turned men willing to be industrious into the streets in order that they may increase profits already reasonably large," asked whether the trust "as we see it is not a public enemy; whether it is not teaching the laborer dangerous lessons; whether it is not helping to breed anarchy."
In the midst of this general confusion of opinion on the trust, it is not surprising that Congress in the Sherman law of 1890 enunciated no clear principles. Apparently it intended to restore competition by declaring illegal "every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several states or with foreign nations." But a study of the debates over the law fails to show any consistent opinion as to what combinations were included within the prohibition or as to the exact meaning of "restraint of trade." Of course, the lawyers pointed at once to the simplicity of the old common law doctrine that conspiracies in restraint of trade are illegal, but this was an answer in verbiage which gave no real clew to concrete forms of restraint under the complex conditions of modern life.
The vagueness of the Sherman anti-trust law was a subject of remark during its passage through Congress. O. H. Platt, in the Senate, criticized the bill as attacking all combinations, no matter what their practices or forms. "I believe," he said, "that every man in business—I do not care whether he is a farmer, a laborer, a miner, a sailor, manufacturer, a merchant—has a right, a legal and a moral right, to obtain a fair profit upon his business and his work; and if he is driven by fierce competition to a spot where his business is unremunerative, I believe it is his right to combine for the purpose of raising prices until they shall be fair and remunerative. This bill makes no distinction. It says that every combination which has the effect in any way to advance prices is illegal and void.... The theory of this bill is that prices must never be advanced by two or more persons, no matter how ruinously low they may be. That theory I denounce as utterly untenable, as immoral."
Senator Platt then went on to say that the whole subject had not been adequately considered and that the bill was a piece of politics, not of statesmanship. "I am sorry, Mr. President," he continued, "that we have not had a bill which had been carefully prepared, which had been thoughtfully prepared, which had been honestly prepared, to meet the object which we all desire to meet. The conduct of the Senate for the past three days—and I make no personal allusions—has not been in the line of the honest preparation of a bill to prohibit and punish trusts. It has been in the line of getting some bill with that title that we might go to the country with. The questions of whether the bill would be operative, of how it would operate, or whether it was within the power of Congress to enact it, have been whistled down the wind in this Senate as idle talk, and the whole effort has been to get some bill headed: 'A Bill to Punish Trusts,' with which to go to the country."